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2014 DIGILAW 1951 (MAD)

Ramasamy Gounder (died) v. Sivasubramanian

2014-07-04

M.DURAISWAMY

body2014
Judgment 1. The above second appeal arises against the judgment and decree passed in A.S.No.61 of 2007 on the file of Principal District Court, Coimbatore confirming the judgment and preliminary decree so far as the relief of partition is concerned and reversing the decree in respect of mesne profits passed in O.S.No.241 of 1999 on the file of Sub Court,, Udumalapet. 2. The defendants 3 to 6 are the appellants, the first respondent was the plaintiff and the defendants 2 and 6 are the respondents 2 and 3. 3. The plaintiff filed the suit in O.S.No.241 of 1999 for partition and mesne profits. 4. The brief case of the plaintiff is as follows:- (i) According to the plaintiff, he is the son of the first defendant, the second defendant is the first defendant's second wife's son and the defendants 3 to 5 are the daughters of the first defendant. The suit properties are the joint family properties of the plaintiff and the defendants 1 and 2. The first item of the suit property was allotted in favour of the plaintiff's grandfather Chennimalai Gounder in the partition deed dated 18.10.1922. The second item was purchased by Chennimalai Gounder in the Court auction. The third item was purchased by Chennimalai Gounder from the joint family income. The fourth item was purchased by the first defendant from the joint family income. The first defendant did not have any independent income apart from the joint family income. The first defendant purchased item Nos. 4, 5 and 6 of the suit properties from the joint family income. Though item Nos. 4, 5 and 6 were purchased in the name of the first defendant, they are not his separate properties. The properties are joint family properties. Only from the joint family income, the first defendant developed item No.4 of the suit property and planted coconut trees. (ii) The plaintiff is entitled to 1/3rd share in item Nos. 1 to 4 of the suit properties. As kartha of the family, the first defendant was managing the properties. The plaintiff was demanding partition of his 1/3rd share from the first defendant. On 13.9.1998, the plaintiff sent legal notice wherein, by mistake, he had stated that he is entitled to 7/36th share in the suit properties. The first defendant did not send any reply to the notice sent by the plaintiff. (iii) Plaintiff's mother died when he was young. The plaintiff was demanding partition of his 1/3rd share from the first defendant. On 13.9.1998, the plaintiff sent legal notice wherein, by mistake, he had stated that he is entitled to 7/36th share in the suit properties. The first defendant did not send any reply to the notice sent by the plaintiff. (iii) Plaintiff's mother died when he was young. The first defendant married the younger sister of the plaintiff's mother as second wife. The first defendant and other defendants are enjoying the income from item No.4 of the suit property. In these circumstances, the plaintiff filed the suit. 5. The brief case of the first defendant is as follows: According to the first defendant, item No.4 of the suit property is his separate property. It is not a joint family property. The property was not developed out of the joint family income. The plaintiff is not entitled to 1/3rd share in the suit properties. The plaintiff claimed only 7/36th share in the suit properties in his notice dated 13.9.1998, therefore, he is entitled only to the said share. About 10 years ago, the plaintiff was given an extent of 13 Acres in item No.1 of the suit property and a house property and since then he was enjoying those properties. The plaintiff has suppressed the allotment of properties in his favour in the plaint. The first defendant's family owned only 6 acres in Survey No.30. On 4.6.1997, the first defendant settled the lands in Survey Nos. 41 and 44 in favour of his daughters, viz., defendants 3 to 5 as kartha, therefore, the plaintiff cannot claim partition in respect of those properties. The settlement deed executed in favour of the daughters is binding on the plaintiff. In these circumstances, the first defendant prayed for dismissal of the suit. 6. The brief case of the defendants 2 to 6 are as follows: The defendants 2 to 6 adopted the written statement filed by the first defendant. The plaintiff is not entitled to claim 1/3rd share in the suit properties. The plaintiff got some extent of the land in the first item of the property and a house property earlier, therefore, the present suit for partition is liable to be rejected. The defendants 3 to 6 were allotted lands in Survey Nos. 41 and 44 by the first defendant by way of settlement deed. The plaintiff got some extent of the land in the first item of the property and a house property earlier, therefore, the present suit for partition is liable to be rejected. The defendants 3 to 6 were allotted lands in Survey Nos. 41 and 44 by the first defendant by way of settlement deed. The plaintiff cannot claim partition in respect of those properties. Since the first defendant did not give any Sridhana at the time of their marriage, the first defendant gave the lands to the defendants 3 to 6. (ii) The 6th defendant is entitled to 1/4th share in the suit properties. The first defendant died on 11.3.2004. During his life time, he executed a registered will in favour of the defendants 3 to 6. As per the Will, the defendants 3 to 6 are entitled to the properties. In these circumstances, defendants 3 to 6 prayed for dismissal of the suit. 7. Before the Trial Court, on the side of the plaintiff, 3 witnesses were examined and 19 documents Ex.A.1 to Ex.A.19 were marked and on the side of the defendants, 5 witnesses were examined and 16 documents Ex.B.1 to Ex.B.16 were marked. 8. The Trial Court, after taking into consideration the oral and documentary evidences of both sides, passed a preliminary decree for partition finding that the plaintiff, and the defendants 2 and 6 are entitled to 8/28th share each and the defendants 3, 4 and 5 are entitled to 1/28th share each. The Trial Court dismissed the suit in respect of mesne profits. 9. Aggrieved over the judgment and decree of the Trial Court, the plaintiff preferred an appeal in A.S. No. 61 of 2007 and the lower appellate court modified the judgment and decree of the Trial Court by confirming the judgment and decree of the Trial Court so far as the relief of partition is concerned and set aside the judgment and decree of the Trial Court in respect of mesne profits and found that the plaintiff is entitled for mesne profits. 10. Aggrieved over the judgment and decree of the Courts below, the defendants 3 to 6 have filed the above second appeal. 11. Heard Mr. S.V. Jayaraman learned Senior Counsel appearing for the appellants, Mr. R. Subramanian, learned Counsel appearing for the first respondent and Mr. C. Selvaraj, learned Counsel appearing for the third respondent 12. 10. Aggrieved over the judgment and decree of the Courts below, the defendants 3 to 6 have filed the above second appeal. 11. Heard Mr. S.V. Jayaraman learned Senior Counsel appearing for the appellants, Mr. R. Subramanian, learned Counsel appearing for the first respondent and Mr. C. Selvaraj, learned Counsel appearing for the third respondent 12. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:- “(i) Whether the suit properties are joint family properties? (ii) Whether the suit is barred by trial? (iii) Whether the plaintiff is entitled for trial? (Extracted as framed at the time of admission) 13. Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants submitted that the Courts below erroneously came to the conclusion that item No.4 of the suit property is an ancestral property merely because the plaintiff also signed in the mortgage deed in favour of the co-operative bank, which was only included to safeguard the interest of the bank, therefore, it will not confer any title over the property to the plaintiff. Further, the learned Senior Counsel submitted that merely because the grand-father of the plaintiff was alive at the time of execution of the mortgage deed, it will not change the character property. Further, the learned Senior Counsel submitted that the properties are not joint family properties and therefore, the Courts below should have dismissed the suit. In support of his contention, the learned Senior Counsel relied upon the following judgments:- (i) AIR 1964 SC 510 (Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa), wherein the Apex Court held as follows:- “18. The legal position may be summarized thus: the Hindu law tests conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But, it became, crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift any the less a valid one. (ii) AIR 2004 SC 1284 ( R.Kuppayee and another v. raja Gounder) wherein the Hon'ble Supreme Court held that the father can make a gift of ancestral property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage. The question as to whether a particular gift is within reasonable limits or not has to be judged according to the status of the family at the time of making a gift, the extent of the immovable property owned by the family and the extent of property gifted. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family. This apart, the question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property. (iii) 1976 (2) MLJ 225 ( Pattusami Padayachi vs. Mullaiammal and others) wherein the Division Ben ch of this court held that it has now become almost axiomatic that properties purchased by one or the other of the members of a coparcenary or joint family when the family is joint cannot as a matter of course be treated as joint family property. The coparcener who challenges such title in the member and pleads that they should also be brought to the hotch-pot, ought to establish by cogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. (iv) 2011(1) TLNJ 522 (U.Palanisamy vs. K.Thangavelu and another) wherein this court following the ration laid down in the decision reported in 2002 (9) SCC 28 (GOVERNMENT OF ORISSA V. ASHOK TRANSPORT AGENCY) wherein the Apex Court held as follows: "Voidable act" is that which is a good act unless avoided, e.g., if a suit is filed for declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable". Following the ratio, this court held that if the transaction is voidable, it is required to be set aside and therefore, without a prayer for setting aside the said transaction the suit for partition is not maintainable. Following the ratio, this court held that if the transaction is voidable, it is required to be set aside and therefore, without a prayer for setting aside the said transaction the suit for partition is not maintainable. (v) 2010(3) CTC 502 (Murugan and 56 others v. Kesava Gounder and 2 others) wherein, I had an occasion to hold that if a document is voidable, Article 60(b)(ii)of the Limitation Act would apply and if the document is a void document then, Article 65 of the Limitation Act would apply. Further I have held that when a minor died during minority, limitation of 3 years would apply from the date of death of the minor. Further if minor's property was sold without obtaining Court's permission is voidable and in such case, the plaintiff should have filed the suit for setting aside such a sale. (vi) 2010(3) LW 908 (Chinnammal and another v. Valliammal and others). In this judgment, I had an occasion to hold that in a joint Will, the Will comes into effect immediately after the death of the any one of the testators and the Will has to be proved by examining atleast any one of the attestor to the Will. 14. Countering the submissions made by the learned Senior Counsel appearing for the appellants, Mr. R. Subramaniam, learned Counsel appearing for the first respondent submitted that the plaintiff had clearly proved that the properties are joint family properties, which are liable for partition. Further, the learned Counsel submitted that the joint family manager can alienate the joint family properties and the alienation would not lead to the conclusion that when the minor coparceners question the alienation, they should pray for setting aside the alienation. (i) AIR 1996 Madras 212 (Gurusamy naicker and others v. G.Jayaraman and others) wherein the Division Bench of this court held that the reasonable portion of joint family properties could be gifted by the kartha of the family in favour of a daughter or daughters in the family. Whether the plaintiff, a coparcener, seeking partition alleges that the gift of a portion of the joint family property to his daughters is itself not valid in law. Whether the plaintiff, a coparcener, seeking partition alleges that the gift of a portion of the joint family property to his daughters is itself not valid in law. The gifted properties being joint family properties, while on the other hand the defendants claimed that the gift was valid, it was upto them to plead that though the properties were joint family properties the gift was valid because it was only a reasonable portion made by the kartha in favour of the daughters and hence under Hindu law, it is valid. But in the absence of such plea and any evidence that the properties gifted were only such a reasonable portion it cannot be held that the gift is valid and binding on the plaintiff. (ii) 2005(4) CTC 457 (P.R. Kanniyan A(died) and others v. Ramasamy Mandiri and others) wherein a Division Bench of this court held that an exception is carved out in the matter relating to acquisition in the name of Karta, where it is proved that Karta had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name property had been purchased, had no independent income, the burden is shifted to the Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager. (iii) 2002(4) CTC 407 (Thulasiammal v. Marappa Gounder and others) wherein this court held that father can make gift of ancestral immovable property within reasonable limits for pious purpose like settlement in fulfillment of an antenuptial promise made at the time of settlement of daughters marriage. Further this court held that settlement made because daughter took care of parents and son did not, cannot be construed to be within reasonable limits in discharge of pious purpose. 15. On a careful consideration of the materials available on record and the submissions made by the respective learned counsels, it could be seen that the subject matter of the Second Appeal is with regard to item No.4 of the suit property. So far as item Nos. 15. On a careful consideration of the materials available on record and the submissions made by the respective learned counsels, it could be seen that the subject matter of the Second Appeal is with regard to item No.4 of the suit property. So far as item Nos. 1, 2, 3, 5 and 6 are concerned, the Courts below found that the said properties are joint family properties and liable for partition. 16. The plaintiff contended that the suit properties are the joint family properties, therefore, he is entitled to 1/3rd share along with the defendants 1 and 2. The first defendant is his father and the second defendant is the son of the first defendant through his second wife, and the defendants 3 to 5 are the first defendants' daughters. 17. The defendants contended that item No.4 of the suit property is the separate property of the first defendant and therefore, the same is not liable for partition. Under Ex. B6 settlement deed dated 4.6.1997, the first defendant settled the land in favour of his daughters viz., defendants 3 to 6. The first defendant also executed Ex.B14 Will dated 12.2.2004 in favour his daughter bequeathing his share in the properties. By Ex.B1 partition deed, between the first defendant's father Chennimalai Gounder and his father, the first item of the property mentioned in the partition deed was allotted in favour of Chennimalai Gounder. Therefore, from Ex.B1 partition deed, it is clear that the first item of the suit property is the joint family property. Item No.2 of the suit property was purchased by Chennimalai Gounder in the court auction. Under Ex.B2 sale deed dated 13.3.1944, the said Chennimalai Gounder purchased item No.3 of the suit property. The house property in item No.3 was purchased by Chennimalai Gounder under Ex.B3 sale deed dated 11.5.1950. Therefore, there is no dispute that item Nos. 1 to 3 of the suit properties are joint family properties. The 1st item of the suit property measures an extent of 12 acres and 25= cents, 2nd item of the suit property measures an extent of 15.46 Acres and the 3rd item of the suit property measures an extent of 6 Acres. Therefore, it is clear that from the joint family properties, the family derived sufficient income. 18. Item No.4 of the suit property was purchased under Exs.A2 to A5 documents. Therefore, it is clear that from the joint family properties, the family derived sufficient income. 18. Item No.4 of the suit property was purchased under Exs.A2 to A5 documents. According to the plaintiff, the said property was purchased by the first defendant in his name out of the joint family income. When the first defendant contend that the 4th item of suit property was purchased by him and that it is his separate property, the burden is on him to establish the said contention by oral and documentary evidences to show that he had independent income apart from the joint family income to purchase item No.4 of the suit property. 19. On a perusal of the written statement filed by the first defendant, it is clear that he has not given the details of his independent income for the purchase of item No.4 of the suit property. The first defendant has not given the details about the land leased out to the leasees and the actual income derived from those lands. As already stated, item No.4 of the suit property was purchased under Exs. A2 to A5 documents on 3.12.1962, 22.8.1960, 21.12.1962 and 29.5.1972 respectively. In order to establish that item No.4 of the suit property was purchased from the separate income of the first defendant, a lease deed dated 19.2.1964 was marked before the Lower Appellate Court as Ex.B17. Out of the four sale deeds, three sale deeds were prior to Ex.B17 lease deed. Therefore, the case of the first defendant that out of the income derived by leasing the agricultural lands under Ex.B17, 4th item of the suit property was purchased cannot be accepted. In other words, in respect of item No.4 of the suit property, three properties were purchased even prior to Ex.B17 lease deed. 20. It cannot be disputed that the joint family owned agricultural properties and the joint family also derived income from those properties. When the first defendant was not in a position to establish that item No.4 of the suit property was purchased by him out of his own independent income coupled with the fact that the joint family owned agricultural lands and also derived income from those properties, the contention of the first defendant that the suit property is his separate property cannot be accepted. 21. 21. By Ex.A8 mortgage deed, item No.4 of the suit property was mortgaged by the first defendant, plaintiff and the second defendant. If the property was construed as the separate property of the first defendant, he would not have mortgaged the property along with the plaintiff and the second defendant. Only because the property is a joint family property, the first defendant mortgaged the property along with the plaintiff and the second defendant. The first defendant also contended that there was a oral partition in respect of Survey Nos. 31A, 31B and 32 measuring an extent of 15 Acres and was allotted in favour of the plaintiff. Therefore, the plaintiff cannot claim for partition of the suit properties. But the contention that there was oral partition between the family members has not been established and proved by the first defendant. Though the first defendant had contended that the oral partition was effected in the presence of one Palanisamy, he was not examined as a witness to prove the oral partition. The Courts below rightly rejected the contention of the first defendant with regard to the oral partition. The Courts below also took note of the contradictions in the evidence of D.W.1 with regard to the oral partition. 22. Under Ex.B6 settlement deed dated 4.6.1997, the first defendant settled item No.4 of the suit property's in favour of his daughters viz., defendants 3 to 6. The learned Senior Counsel appearing for the appellants submitted that the settlement made by the first defendant in favour of his daughters is within the reasonable limits, therefore, as a kartha of the joint family, the father can make a gift of ancestral immovable property to his daughters during their marriage or even long after their marriage. 23. The learned Counsel appearing for the first respondent submitted that among the six properties, 4th item of the property is the most valuable property having more than 1000 coconut trees in the land. In the judgment relied upon by the learned Senior Counsel appearing for the appellant, the Apex Court held that a reasonable portion of the immovable property can be gifted by the father as kartha of the family in favour of his daughters. In the judgment relied upon by the learned Senior Counsel appearing for the appellant, the Apex Court held that a reasonable portion of the immovable property can be gifted by the father as kartha of the family in favour of his daughters. But the Apex Court in its judgment also held that the question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property hold by the family. Further the Apex Court held that the quantitative limits of such a gift would vary from family to family and can be decided according to the status of the family, extent of the property owned and gifted. 24. Further, the learned Counsel for the first respondent submitted that the value of item No.4 of the property cannot be compared with the value of the other properties and in fact the learned counsel submitted that if the defendants agree the plaintiff is willing to swap the properties. Since the value of the item No.4 is much more than the other items, I am of the considered view that the settlement made by the first defendant in favour of his daughters under Ex.B6 settlement deed shall not come within the meaning of reasonable limits. 25. Though there is no dispute with regard to the ratio laid down by the Apex Court that the father as a kartha of the joint family can gift a reasonable portion of the ancestral properties in favour of his daughters, since in the case on hand, the settlement made by the father viz., the first defendant, is beyond the reasonable limit, the settlement made in favour of the daughters is not valid. The Courts below rightly came to the conclusion that Ex.B6 settlement deed is not a valid document and the same shall not bind the plaintiff. 26. The 6th defendant contended that he got married on 3.9.1989, therefore, under the Hindu Succession Act, she should be construed as a member of the joint family, entitled to a share in the property. However, the plaintiff contended that the 6th defendant got married much prior to 3.9.1989. In order to prove that the 6th defendant got married on 3.9.1989, the marriage invitations were marked as Exs.B4, B11 and B12. 6th defendant's husband was examined as D.W.3. D.W.3 also deposed that they got married on 3.9.1989. However, the plaintiff contended that the 6th defendant got married much prior to 3.9.1989. In order to prove that the 6th defendant got married on 3.9.1989, the marriage invitations were marked as Exs.B4, B11 and B12. 6th defendant's husband was examined as D.W.3. D.W.3 also deposed that they got married on 3.9.1989. D.W.5, who printed Exs.B4, B11 and B12 also deposed about the printing of invitations in the year 1989. Taking into consideration Exs.B4, B11 and B12 and the evidence of D.W.3 and D.W.5, the courts below rightly came to the conclusion that the 6th defendant got married on 3.9.1989. Since the 6th defendant got married on 3.9.1989, as per the amended provisions of section 29 of the Hindu Succession Act, she is entitled to a share in the ancestral joint family property along with her brothers. The Lower Appellate Court rightly came to the conclusion that the plaintiff, defendants 1, 2 and 6 are entitled to 1/4th share each in the suit properties. 27. The defendants produced Ex.B14 Will dated 12.2.2004, which was alleged to have been executed by the first defendant in favour of his daughters viz., defendants 3 to 6. The plaintiff contended that Ex.B14 Will cannot be a true and genuine document and it can only be a fabricated document for the reason that the testator viz., first defendant, was not keeping good health at the time of execution of the document. This contention of the plaintiff has a force, for the reason that before the Trial Court when the suit was posted for the examination of D.W.1, viz., the first defendant, he was examined on 4.12.2002 and his chief examination was continued on 31.1.2003 and thereafter, the matter was adjourned from 31.1.2003 to 10.2.2004 (i.e.) for more than one year for the cross examination of D.W.1. During that period, several petitions were filed by the first defendant stating that he was bed ridden and unwell and that he was not in a position to walk and therefore, he was admitted in the Pollachi Government Hospital. All these petitions were filed only by the Counsel, who appeared for the first defendant before the Trial Court. The first defendant was not in a position even to file an affidavit to that effect before the trial Court during the relevant period. All these petitions were filed only by the Counsel, who appeared for the first defendant before the Trial Court. The first defendant was not in a position even to file an affidavit to that effect before the trial Court during the relevant period. On 7.1.2004, the first defendant filed an application in I.A.No.31 of 2004 and along with the said application, the first defendant enclosed a medical certificate wherein the Doctor, who treated him, had stated that the first defendant was admitted in the hospital on 29.12.2003 due to Cardiac attack and that he require atleast two months bed rest. Subsequently, in the application filed on 29.1.2004, it was stated that the first defendant was suffering from ailment and prayed for one week adjournment. On 10.2.2004, another application was filed before the trial court stating that the first defendant was again admitted in the hospital and prayed for 3 more weeks adjournment. On 20.2.2004, another application in I.A.No.87 of 2004 was filed wherein the first defendant sought for appointment of an Advocate Commissioner to examine him since he was bed ridden due to Cardiac problem. Further, he has stated that the Doctor had advised him to take bed rest and further he was not in a position to come out of the house. Therefore, from the above documents filed before the Trial Court for getting adjournment from December 2003, it is clear that the first defendant was bed ridden and was not in a position to move around for more than one year. Ex.B14 Will was executed on 12.2.2004. When the first defendant was not in a position to move around and was bed ridden, how he was able to execute Ex.B14 Will on 12.2.2004 have to be explained by the defendants. 28. The attestor was examined as D.W.4. In his evidence he has stated that on 12.2.2004 he accompanied the first defendant to consult the Doctor at Coimbatore and when they were proceeding to Coimbatore in a Car, the first defendant informed him that he wanted to write a Will and therefore, they went to Sub Registrar's office where the Will was prepared and registered. 29. On a perusal of Ex.B14 Will it could be seen that the Will was registered between 1.30 p.m. and 2.30 p.m. D.W.4 is a Government servant. 29. On a perusal of Ex.B14 Will it could be seen that the Will was registered between 1.30 p.m. and 2.30 p.m. D.W.4 is a Government servant. But, he deposed that he did not apply for leave on the date of execution of Ex.B14 Will. A Government servant, even without applying for a leave, have gone with the first defendant for execution of the Will, that too, for the whole day cannot be accepted. 30. It is also pertinent to note that in I.A.No.87 of 2004, the first defendant has stated that not only he was bed ridden he also stated that the Doctors had fixed catheter for passing urine. When the first defendant was not in a position to even to attend to nature's call in a natural manner, the contention of the first defendant that he had executed Ex.B14 Will on 12.2.2004, that too, by going to Registrar's office cannot be imagined. Even D.W.4 has not stated that the first defendant had informed him about the execution of Ex.B14 Will previously. Even according to D.W.4, the first defendant, on their way to Coimbatore, suddenly decided to write a Will and executed the same and registered in the Registrar's office, cannot be believed. 31. Since it is clear that the first defendant was not hale and healthy and in fact he was bid ridden, the Courts below rightly came to the conclusion that Ex.B14 Will cannot be a true and genuine document executed by the first defendant in a sound and disposing state of mind. Since the defendants failed to prove Ex.B14 Will, the Courts below rightly rejected the same. 32. Though the Trial Court declined to decree the suit with regard to mesne profits, the Lower Appellate Court rightly found that since the defendants are in possession and enjoyment of the suit properties, the plaintiff being entitled to 8/28th share in the suit property, is entitled to mesne profits from the defendants. The Courts below concurrently found that the plaintiff, defendants 2 and 6 are entitled to 8/28th share each in the suit properties and the defendants 3, 4 and 5 are entitled to 1/28th share each in the suit properties. Since the defendants are in possession and enjoyment of the suit properties, the Lower Appellate Court rightly found that the plaintiff is entitled to mesne profits. 33. Since the defendants are in possession and enjoyment of the suit properties, the Lower Appellate Court rightly found that the plaintiff is entitled to mesne profits. 33. In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below with regard to partition and grant of mesne profits by the Lower Appellate Court. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.