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2015 DIGILAW 2159 (MAD)

M. Ramasamy v. Vangalayee @ Karuppayee

2015-06-04

V.M.VELUMANI

body2015
Judgment :- The first defendant in O.S.No.285 of 1996 is the appellant herein. The first respondent herein is the plaintiff filed O.S.No.285 of 1996 on the file of Sub-Court, Karur, for partition of suit properties and to allot 1/2 share to her. The learned Subordinate Judge after considering the pleadings, materials on record, evidence granted 1/4th share in items 1 to 4 in 'A' Schedule property and dismissed the suit in respect of other properties and against second defendant. The learned Subordinate Judge passed preliminary decree to that effect by judgment dated 15.11.1999. Against the said judgment, the present first appeal is filed. 2. The case of the first respondent is that the first respondent and appellant are sister and brother. 'A' Schedule property is self acquired property of their father, Muthuswamy Gounder. From and out of income of 'A' Schedule property, their father purchased 'B' Schedule property in the name of appellant. The appellant did not have any independent income to purchase 'B' Schedule property. Till the date of death of the father of the parties, their father was enjoying the property by paying kist. On 30.11.1988 he died leaving behind first respondent and appellant as his only legal heirs. From the date of death of the father of the parties, parties are enjoying the suit properties jointly. The first respondent sought partition of the suit properties. The appellant did not agree for the same. Therefore, the first respondent sent a notice, dated 23.11.1995 through her advocate. Again the first respondent sent another notice, dated 27.2.1996. The appellant avoided receiving the same. For the first notice dated 23.11.1995, the appellant sent a reply containing false allegations. Therefore, she has filed suit for partition. 3. The appellant in his written statement denied that first respondent is his sister. According to the appellant, he is the only son of Muthuswamy Gounder. The appellant and his father from and out of his income purchased 'A' Schedule property in the name of father of parties. The appellant out of his own income purchased 'B' Schedule property. In additional written statement the appellant stated that his father executed a will dated 01.04.1985, (wrongly mentioned in the written statement as 01.04.1995 instead of 01.04.1985) bequeathing all the properties to the appellant. 4. The first respondent in her reply statement denied the execution of will dated 01.04.1985. The appellant out of his own income purchased 'B' Schedule property. In additional written statement the appellant stated that his father executed a will dated 01.04.1985, (wrongly mentioned in the written statement as 01.04.1995 instead of 01.04.1985) bequeathing all the properties to the appellant. 4. The first respondent in her reply statement denied the execution of will dated 01.04.1985. If, really it was a genuine will, the appellant ought to have mentioned and filed along with original written statement. The appellant has to prove the will. The appellant has not approached the Court with clean hands, as he denied the fact that the first respondent is his sister. 5. Based on the pleadings the learned judge framed appropriate issues. The first respondent examined herself as PW1 and examined two other witnesses and marked 9 documents as Exs. A1 to A9. The appellant examined himself as DW1 and examined two other persons and marked 15 documents Exs. B1 to B15. 6. In the cross-examination, the appellant admitted that the first respondent is her elder sister. Therefore, the learned Judge held that the appellant and the first respondent are brother and sister. 7. Based on the evidence let in by the parties, the learned Judge held that 'A' Schedule property is the joint property of appellant and his father Muthuswamy Gounder. 'B' Schedule property is the self acquired property of the appellant. With regard to the will, the learned Judge rejected the said contention of the appellant on the ground that the appellant did not explain the suspicious circumstances surrounding the will. In the result the learned judge granted relief to the first respondent granting 1/4th share in the 'A' Schedule property except Item No.5, which is a residential building. Against this preliminary decree, appellant has filed this present appeal. 8. The learned counsel for the appellant contented that 'A' Schedule property was purchased by the appellant and his deceased father out of their own hard work and self earning in the name of late Muthuswamy Gounder and the first respondent has no right whatsoever in the said properties. The first respondent married when she was 19 years old and she was living in a nearby village from 1963 and the first respondent has no right, title or interest in the suit properties. The learned Judge erred in holding that will dated 01.04.1985 is a created one. The first respondent married when she was 19 years old and she was living in a nearby village from 1963 and the first respondent has no right, title or interest in the suit properties. The learned Judge erred in holding that will dated 01.04.1985 is a created one. The said finding is contrary to well established principle of law. The appellant has proved the will by examining DW2, who is the attesting witness. The finding of court below in rejecting the will on the ground that the same was not stated in the reply notice or in the written statement originally filed by the appellant is erroneous and contrary to law. 9. The learned counsel for the appellant relied on the following judgments with regard to the will dated 01.04.1985. (i) AIR 1995 SC 1684 [Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by LRs. and others], wherein in paragraph 4, it has been held as follows: "4.As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will." (ii) AIR 2006 Punjab & Haryana 39, [Daljit Singh and others Vs. Sukhwinder Singh and others], wherein in paragraph 9, it has been held as follows: "9.The other argument that there is a suspicious circumstance inasmuch as the two real daughters, namely, plaintiff-appellants have been excluded by the testator would also not require any detailed consideration because there is nothing on the record to show that the registered Will executed by Harnam Kaur was not the result of her free volition showing that the testator's mental capability was not impaired and she had personally gone to the office of the Registrar for registration of the Will. She died almost two and half years later. She died almost two and half years later. The mere fact that the entire property was given to defendant-respondent No. l alone is no ground to entertain any suspicion. In this regard, reliance may be placed on a judgment of the Supreme Court in the case of Rama Bai Padmakar Patil v. Rukmani Vishnu Venkhande [ 2003 (8) SCC 537 : AIR 2003 SC 3109 ]. Therefore, there is no substance in the argument raised by the learned Counsel for the plaintiff-appellant." (iii) AIR 1995 SC 1852 [PPK Gopalan Nambiar Vs. PPK Balakrishnan Nambiar and others], wherein in paragraph 4, it has been held as follows: "4. On appeal, the Subordinate Judge has given various reasons to accept the validity of the will. One of the reasons is that it is a registered will and the endorsement by the Registrar would show that the testator was in a sound disposing state of mind and that it was executed out of her free will and that, therefore, the discrepancy in the evidence of DW 2, an attestor does not vitiate the validity of the will. On appeal, the learned Single Judge without going into the evidence, has stated in one sentence that he agrees with the reasoning of the trial court and does not agree with the reasoning of the appellate court. We are at a loss to appreciate the view taken by the learned Judge. The High Court also stated that the whole of the estate given to the son under the will would itself generate suspicious circumstance. It is difficult to accept the reasoning of the learned Judge. Admittedly, the will was executed and registered on 1-11-1955 and she died 8 years thereafter in the year 1963. When the appellant had propounded the will in his written statement, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder i.e. additional written statement with leave of the court under Order 8, Rule 9 pleading the invalidity of the will propounded by the appellant. Nothing has been stated in the pleadings. Even in the evidence when the appellant was examined as DW 1 and his attestor as DW 2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the will. Nothing has been stated in the pleadings. Even in the evidence when the appellant was examined as DW 1 and his attestor as DW 2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the will. In the cross-examination by the first respondent, no attempt was even made to doubt the correctness of the will." (iv) 2001 (3) CTC 283 (DB) [Corra Vedachalam Chetty and another Vs. G.Janakiraman], wherein in paragraphs 25, 26 and 28, it has been held as follows: "25. The testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are not unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operative. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to whether he or she had signed the same and whether the attestors had signed receiving an acknowledgment from him about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the executions and attestation, of the Will as also the disposing state of mind of the testator. 26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements. 28. The fact that the Will was not produced immediately after the demise of the testator for the purpose of probate, does not by itself render the Will fraudulent or untrue. So also the fact that the Will came from the custody of the daughter, beneficiary does not render the Will untrue when the evidence exists to show that the Will was in fact, the last Will of the testator. The fact that the beneficiary was not examined as a witness in the proceedings does not also by itself have the effect of rendering the Will untrue. The beneficiary in this case is the only daughter of the deceased who does not reside at Madras who lives far away therefrom, is a married lady of advanced years and who had obviously relied upon the counsel as to whether her examination in Court is essential or not. Though it would have been better if she add examined herself, her non examination by itself cannot result in an adverse inference being drawn as to result in the denial of probate for the Will, even when the other circumstances of the case show that the Will is genuine." (v) 2015 (1) LW 584 [Thrisangu Vs. Rajammal and others], wherein in paragraph 12, it has been held as follows: "12. From the records, it is seen that the first respondent is not related to the deceased Kannan and by the Will in question, the deceased Kannan had totally disinherited the appellant, who is his brother. Therefore, the burden is on the first respondent to prove the Will namely, the Testator signed the Will and he was in sound and disposing state of mind and understood the nature and effect of dispositions. The first respondent through D.W.2, one of the attesting witnesses, discharged her duty to the satisfaction of trial Court, which was confirmed by the first appellate Court. The first respondent through D.W.2, one of the attesting witnesses, discharged her duty to the satisfaction of trial Court, which was confirmed by the first appellate Court. Further, the Will was executed in the Office of Advocate, who had also signed in the Will. As the Testator signed in the Will in the Office of the Advocate, contention of the appellant that the Will executed in a place far away from the place of permanent residence is suspicious, is untenable. Similarly, the contention of the learned counsel for the appellant that the claim of the first respondent based on the Will has to be rejected, as the Will was made ready on 06.09.1989, but was executed only on 01.12.1992, has no force. As per instructions of Testator, the Will was prepared and he executed the same at a later point of time according to his convenience in the presence of the Advocate and the witnesses." (vi) 2008 (1) MLJ 1337 (SC) [Savithri and others Vs. Karthyayani Amma and others], wherein in paragraphs 14 , 17 and 19, it has been held as follows: "14.The legal requirements in terms of the said provisions are now well settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. 17. Therein, this Court also took into consideration the decision of this Court in H.Venkatachala Iyengar Vs. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. 17. Therein, this Court also took into consideration the decision of this Court in H.Venkatachala Iyengar Vs. B.N.Thimmajamma [ AIR 1959 SC 443 ], wherein the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances: "(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.” 19. Deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant." 10. Per contra, the learned counsel for the first respondent contended that the lower court has considered the pleadings and evidence on record in proper perspective and had given valid reasons for preliminary decree. The learned counsel of the first respondent further contended that the judgment of the lower court with regard to residential house is no longer as per law as Section 23 of Hindu Secession Act has been repealed and daughters are also entitled to seek partition in respect of residential buildings. 11. I have considered the pleadings, evidence and the judgments relied on by the learned counsel of the appellant and also the rival submissions put forth on either side. 12. The appellant himself as DW1 has admitted that first respondent is his elder sister and therefore, the finding of the lower Court in this respect is not seriously disputed by the appellant in this appeal. 13. 12. The appellant himself as DW1 has admitted that first respondent is his elder sister and therefore, the finding of the lower Court in this respect is not seriously disputed by the appellant in this appeal. 13. As far as 'B' schedule property is concerned the appellant has let in evidence to show that he worked in dying factory and from and out of the salary he received, he purchased 'B' schedule property. The learned Subordinate Judge accepted this contention and dismissed the suit in respect of 'B' schedule property. The first respondent has not let in any contra evidence by putting forth any acceptable contentions challenging the said finding. 14. The points for consideration in this appeal are; i. Whether the judgment of the learned Subordinate Judge granting 1/4th share in items 1 to 4 in 'A' schedule properties, is as per facts and law. ii. Whether the Will, dated 01.04.1985 is genuine, valid and legal. 15. The first respondent contended that 'A' schedule & 'B' schedule properties were purchased by her father out of his self earning. She has not let in evidence, contrary to the evidence let in by the appellant that he purchased 'B' schedule property out of his self earning. As far as 'A' schedule property, the appellant has let in evidence to show that he and his father worked in agricultural land and out of the income, he purchased the said properties. The first respondent admitted this fact. But, she has stated in her evidence that she also worked along with her father and appellant and out of the income, 'A' schedule properties were purchased. This contention is untenable. The first respondent did not plead as such in her plaint. Further, she was married at the age of 19 years and was residing in a near by Village from where her father and brother were residing and working in agricultural land. The learned Judge rejected the contentions of the first respondent that she also worked along with the appellant and her father, as it is not possible for a married lady to travel 8 Kilometers daily to work in agricultural land and contribute for purchase of 'A' schedule property. The learned Judge rejected the contentions of the first respondent that she also worked along with the appellant and her father, as it is not possible for a married lady to travel 8 Kilometers daily to work in agricultural land and contribute for purchase of 'A' schedule property. Therefore, the finding of the learned Subordinate Judge that 'A' schedule properties were purchased only from and out of the income earned by appellant and his father, is correct based on proper appreciation of evidence and record. This leads to the question that whether the first respondent is entitled to 1/4th share in items 1 to 4 of 'A' schedule properties or whether she has been excluded from inheriting any share in view of the Will, dated 01.04.1985 put forth by the appellant. The unregistered Will is marked as Ex.D15. The appellant as DW1 spoke about the Will and he examined DW2 one Marappan, who was one of the attesting witness. The attesting witness DW2 spoke about the execution of the Will by Muthuswamy Gounder. Both DW1 and DW2 did not explain as to why the first respondent was not mentioned in the Will at all. Further, they have not explained the statement in the Will that the appellant is only the legal heir of Muthuswamy Gounder, while the first respondent also is one of the legal heirs of Muthuswamy Gounder. This coupled with the fact that the appellant came out with the case that the first respondent is not the daughter of Muthuswamy Gounder and he is the only legal hair. This contention was disproved by his own evidence in cross-examination. 16. In the judgment relied on by the learned counsel for the appellant it has been held that one of the legal heirs can be excluded from inheritance. It has been held that all the legal heirs are also can be excluded and the property can be bequeathed to any third party. There is no legal impediment for the testator for bequeathing his properties to anybody of his liking. But, it is also well settled that in the judgments reported and relied on by the learned counsel for the appellant that when there is suspicious circumstances, then the propounder of the Will must explain the circumstances and clear the suspicion. 17. There is no legal impediment for the testator for bequeathing his properties to anybody of his liking. But, it is also well settled that in the judgments reported and relied on by the learned counsel for the appellant that when there is suspicious circumstances, then the propounder of the Will must explain the circumstances and clear the suspicion. 17. In the present case, the appellant failed to clear the suspicious circumstances, by which the first respondent was excluded from inheritance. He failed to mention the Will at the earliest in the reply notice sent to the learned counsel for the first respondent. He also did not mention the Will in the written statement originally filed. Only in the additional written statement, he has mentioned this Will. Further, in the Will, Muthuswamy Gounder has stated that the appellant is his only legal heir, which is contrary to the facts. The first respondent was not even mentioned as one of the legal heirs of the Muthuswamy Gounder and no reason was given for excluding her from inheritance. 18. The attesting witness also did not say anything about excluding the first respondent from inheritance. In view of these suspicious circumstances, the learned Subordinate Judge has accepted the contention of the first respondent that Will dated 01.04.1985 is not genuine and the appellant is not entitled to all the properties of his father Muthuswamy Gounder. There is no irregularity or illegality in the said judgment. There is no reason or circumstances warranting interference by this Court. 19. For the above reasons, the first appeal is dismissed, confirming the judgment and decree of the learned Subordinate Judge. In view of the relationship of the appellant and respondents, the first appeal is dismissed without cost. Consequently, C.M.P.No.6850 of 2001 is closed.