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2016 DIGILAW 4155 (MAD)

K. Kuppanna Gounder (Died) v. R. Sivakami

2016-12-15

V.M.VELUMANI

body2016
JUDGMENT : V.M. Velumani, J. 1. This Second Appeal has been filed against the judgment and decree dated 12.10.2000, made in A.S. No. 47 of 2000 on the file of the Additional District Judge-cum-Chief Judicial Magistrate Court, Karur, confirming the Judgment and decree dated 24.4.2000, made in O.S. No. 239 of 1986 on the file of the Subordinate Court, Karur. 2. The appellants are the Defendants 2 and 3, who lost before both the courts below. Pending appeal, the 2nd Appellant died. Appellants 3 to 6 were impleaded as his Legal Representatives. 1st Respondent is the plaintiff. 2nd Respondent is the 1st Defendant in the suit. The Respondents 3 to 12 are the Defendants 4 to 7 and 9 to 14. 3. Facts of the Case: (i) The 1st Respondent filed the suit in O.S.239 of 1986 for partition of suit schedule properties and allot ¼th share to her. The appellants and the respondents 1 and 2 are children of one Kuppusamy Gounder. The said Kuppusamy Gounder and his father Palanimalai Gounder partitioned the properties in the year 1965 and 'A' Schedule property was allotted to Kuppusamy Gounder and 'B' Schedule property was allotted to Palanimalai Gounder. Kuppusamy Gounder died on 23.5.1974 and Palanimalai Gounder died on 20.8.1985. The 1st Respondent demanded partition and the appellants and the 2nd Respondent refused for the same and therefore she issued notice dated 20.9.1986 to the appellant and the 2nd Respondent. They did not agree for partition. She filed the suit originally against the 2nd Respondent and the appellants. The appellants took a stand that the 1st Respondent did not implead necessary parties. Therefore the 1st Respondent impleaded the Respondents 3 to 8 and one Palanisamy as Defendants 4 to 10. The said Palanisamy died pending suit. The respondents 9 to 12 were implead as defendants 11 to 14. (ii) The second appellant filed written statement and the same has been adopted by 1st Appellant. They denied all the allegations made by the 1st Respondent. In Schedule A and B properties apart from Appellants 1 and 2 and respondents 1 and 2 other persons have a share. They contended that in 'A' schedule property the appellants and the Respondents 1 and 2 along with their mother are entitled to 1/5th share each. In respect of 'B' schedule property allotted to Palanimalai Gounder, he executed a Will bequeathing 'B' Schedule property to the appellants. They contended that in 'A' schedule property the appellants and the Respondents 1 and 2 along with their mother are entitled to 1/5th share each. In respect of 'B' schedule property allotted to Palanimalai Gounder, he executed a Will bequeathing 'B' Schedule property to the appellants. Palanimalai Gounder has left an arrears of Rs. 6,00,000/- towards Income Tax, Wealth Tax and Property Tax. The appellants are paying the same. The suit is bad for non-joinder of necessary and proper parties. (iii) After the 1st Respondent impleaded the Respondents 3 to 8 and one Palanisamy, the appellants filed additional written statement stating that the persons impleaded by the 1st Respondent are not necessary parties and the 1st Respondent has impleaded them not properly understanding the contentions in the written statement. (iv) The 1st Respondent filed reply statement stating that the appellants have fabricated the alleged Will and forged the signature of Palanimalai Gounder after the 1st Respondent issued notice dated 20.9.1986. (v) Based on the pleadings, the Trial Court framed necessary issues. (vi) Before the Trial Court, the 1st Respondent examined herself as PW1 and one Parthasarathy Jothi, the Handwriting Expert was examined as PW2 and 6 documents were marked as Exs.A1 to A6. On behalf of the appellants, the 2nd appellant examined himself as DW1, and one Velusamy, witness to the Will was examined as DW2 and one Rasappan, who wrote the Will was examined as DW3 and 26 documents were marked as Exs.B1 to B26. The Advocate Commissioner's Report was marked as Ex.C1 and 9 witness documents were marked as Exs.X1 to X9. (vii) Considering the pleadings, oral and documentary evidence adduced by the parties and the arguments of the learned counsel appearing for the parties, the Trial Court decreed the suit for partition and granted ¼ share to the 1st Respondent in both 'A' and 'B' schedule properties. The Learned Trial Judge held that Ex.B5 Will dated 9.6.1985 was not excuted by Palanimalai gounder and the same will not bind the 1st Respondent. (viii) Against the said Judgment and Decree dated 24.04.2000, the appellants 1 and 2 have filed A.S. No. 47 of 2000 before the Additional District-cum-Chief Judicial Magistrate, Karur. (ix) Before the learned Additional District-cum-Chief Judicial Magistrate, Karur, a sale deed dated 1.6.1995 executed by Kuppana Gounder was marked as Ex.A7 and the learned Additional District-cum-Chief Judicial Magistrate framed necessary points for consideration. (ix) Before the learned Additional District-cum-Chief Judicial Magistrate, Karur, a sale deed dated 1.6.1995 executed by Kuppana Gounder was marked as Ex.A7 and the learned Additional District-cum-Chief Judicial Magistrate framed necessary points for consideration. (x) The learned Additional District-cum-Chief Judicial Magistrate, Karur, independently considering all the pleadings, oral and documentary evidence, Judgment and Decree of the Trial Court and the arguments of the learned counsel for the parties, dismissed the First Appeal. 4. Against the said Judgment and Decree dated 12.10.2000, the present second appeal is filed. 5. At the time of admitting the Second Appeal, this Court framed the following Substantial Question of Law. "When the validity of Ex.B.5 Will has been established as per Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act, whether the Courts below are correct in law in rejecting the Will by assuming illusory suspicious circumstances as surrounding the execution of the same?" 6. The learned counsel for appellants contended that the Courts below erred in granting decree of partition, when the 1st respondent failed to implead the mother of parties, who also had a share in the suit properties at the time of filing of suit. The courts below ought to have dismissed the suit and allowed the appeal for not impleading the mother of parties, who had ? share in the suit property. The courts below failed to see that appellants 1 and 2 did not have objection for partition of 'A' Schedule property and first 5 items of 'B' schedule property. 6th item of 'B' Schedule property was bequeathed by Palanimalai Gounder by Will Ex.B5 to Appellants 1 and 2. The appellants 1 and 2 have proved the genuineness of the Will ExB5 by examining the attestor DW2 and scribe DW3. The courts below failed to see that the 1st Respondent has not disproved the evidence of DW2 and DW3. The courts below without properly appreciating the evidence of DW2 and DW3, rejected the same erroneously. The Courts below erred in relying on the evidence of PW2 Handwriting expert and his report Ex.X9. The courts below failed to see that the appellants 1 and 2 have given explanation in the evidence of DW1 for not sending reply to the notice of the 1st respondent. The Courts below erred in relying on the evidence of PW2 Handwriting expert and his report Ex.X9. The courts below failed to see that the appellants 1 and 2 have given explanation in the evidence of DW1 for not sending reply to the notice of the 1st respondent. The courts below ought to have seen that after issue of notice there was mediation through elders and the 1st Respondent agreed for partition of 'A' schedule property only and agreed to receive ¼th share in 'A' schedule property. The Courts below failed to see that Income Tax, Wealth Tax and Property Tax authorities have made claim of Rs. 6,00,000/- of Palanimalai Gounder from the appellants 1 and 2 and the appellants 1 and 2 alone are contesting the said claim. The courts below failed to see that entire income from Lodge is being taken by Income Tax authorities. The courts below erred in decreeing the suit and dismissing the appeal on erroneous ground. The learned counsel for the appellants further contended that the character of the properties are only ancestral properties and the 1st Respondent cannot be treated as coparcener and their father Kuppanna Gounder was not alive, when their grandfather Palanimalai Gounder died and appellants 1 and 2 are coparcener along with their grandfather Palanimalai Gounder. 7. The learned Counsel for the appellants relied on the following judgments and contended that opinion of expert must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. (I) K.V. Ramasamy vs. K.V. Rahgavan and others, 2009 (4) CTC 440 (II) Rohit Chauhan vs. Surinder Singh and others, 2013 (4) CTC 539 (III) Prakash and others vs. Phulavati and others, 2016 (2) SCC 36 (IV) Magan Bihari Lal vs. The State of Punjab, AIR 1977 SC 1091 8. In reply to the arguments of the learned Counsel for 1st Respondent, the learned counsel for appellants submitted that the appellants 1 and 2 have mentioned in written statement about the execution of the Will by Palanimalai Gounder. The 1st Respondent has not stated that Palanimalai Gounder was not in disposing state of mind and therefore the Courts below ought to have accepted Ex B5 Will as genuine and dismissed the suit and allowed the appeal. 9. The 1st Respondent has not stated that Palanimalai Gounder was not in disposing state of mind and therefore the Courts below ought to have accepted Ex B5 Will as genuine and dismissed the suit and allowed the appeal. 9. Per contra, the learned Counsel for the 1st Respondent submitted that the appellants 1 and 2 did not send any reply to suit notice Ex A1 and did not mention about the execution of Will Ex B5 at the initial stage itself. Along with the plaint the 1st Respondent filed I.A. No. 435 of 1987 for appointment of Receiver. The appellants 1 and 2 filed Counter affidavit and in the said Counter affidavit also they did not mention about Ex B5. In the written statement filed by the appellants 1 and 2 only for the first time they mentioned about the Will. Even in the written statements they did not furnish the date of the Will and other particulars. The 1st Respondent filed reply statement and disputed the Will and contended that the Will is a forged and fabricated one after issue of suit notice Ex.A1. A handwriting expert was appointed on the application filed by the appellants 1 and 2. The handwriting expert examined the admitted signature produced by the appellants 1 and 2 with disputed signature in Ex.B5. He was examined as PW2 and he categorically stated that the signature founded in Ex.B5 Will is a traced signature. He has given a Categorical finding that the signature found in Ex.B5 is not a voluntary signature and it is a traced signature of Palanimalai Gounder. He has furnished the details of differences and reasons for coming to that conclusion that the signature is not a genuine signature. There is a discrepancy in the evidence of DWs.1 to 3 with regard to execution of Will and details mentioned in the Will. The Learned Counsel contended that the reason given in Ex.B5 for excluding the Respondents 1 and 2, grand daughters of Palanimalai Gounder are not proper reason for their exclusion. After the partition in the year 1965, the father of the 1st Respondent and Palanimalai Gounder were separated and at the time of marriage of the 1st Respondent, her father Kuppusamy Gounder was alive and he only spent the expenses for the marriage of 1st Respondent. The 2nd appellant as DW1 deposed that the entire Will was dictated by Palanimalai Gounder. The 2nd appellant as DW1 deposed that the entire Will was dictated by Palanimalai Gounder. But there is nothing on record to show that the Will was read over to Palanimalai Gounder and then only he signed the Will. DW2, attestor stated that Will was dictated by Palanimalai Gounder, but in the Will, schedule of properties were not given. 10. In support of his submissions, the learned Counsel for 1st Respondent relied on the following judgments. (I) Veerasekhara Varmarayar vs. Amirthavalliammal and others, AIR 1975 Madras 51 (II) Ram Piari vs. Bhagwant and others, AIR 1990 SC 1742 11. I have carefully perused the materials available on record, the judgments and decrees of the Courts below and considered the arguments advanced by the learned Counsel appearing for the parties and the judgments relied on by them. 12. In the written statement, the appellants 1 and 2 have stated that the 1st Respondent is entitled to a share in Schedule A property. They disputed the claim of share claimed by the 1st Respondent in schedule ''B" property. According to the Appellants 1 and 2, the mother of the parties was alive on the date of filing of suit having equal share with the parties. They claimed dismissal of suit on the ground that necessary and proper party i.e., their mother was not impleaded as party defendant. The appellants 1 and 2 and the 1st Respondent admitted that their mother died withing 4 months from the date of filing of the suit. Their mother's share devolved on them and they are entitled to ¼th share each. As their mother died and parties have inherited her share, there is no error in the findings of Court below that the suit is not bad for non-joinder of necessary parties. 13. The next question to be decided is whether the court below erred in rejecting Ex B5 Will and granting ¼th share in schedule 'B' property. The contentions of the appellants 1 and 2 that even after partition of ancestral property, the property remains as ancestral property in the hands of person to whom it is allotted and male members continued to be coparcener along with the person, is untenable as far as the facts of the present case in concerned. The contentions of the appellants 1 and 2 that even after partition of ancestral property, the property remains as ancestral property in the hands of person to whom it is allotted and male members continued to be coparcener along with the person, is untenable as far as the facts of the present case in concerned. In the partition effected in the year 1965, all the properties were divided into 4 shares and grandfather, father and the appellant 1 and 2 were allotted specific shares and they were in separate possession and enjoyment of the property allotted to them. The properties allotted to each party were treated as separate self acquired property. This position is admitted by the appellants 1 and 2 in their written statement and evidence when they admitted that 1st Respondent is entitled to equal share with them. The appellants 1 and 2 claim Schedule 'B' property exclusively based on Ex.B5. They did not send any reply to suit notice Ex.A1 issued by the 1st Respondent. It is well settled that when reply was not sent, it will not amount to admitting the case of the other party. But in the present case, the appellants 1 and 2 are denying the share to 1st Respondent based on the Will. They ought to have sent a reply denying the right to a share in 'B' schedule property putting forth their case based on the will. The appellants 1 and 2 did not mention the Will when 1st Respondent filed I.A. No. 435 of 1987 for appointment of receiver in their counter. Even in the written statement, the appellants 1 and 2 have not mentioned the date of Will. On their application, handwriting expert was appointed and they produced the admitted signature of their grandfather of Palanimalai Gounder. The handwriting expert on comparing the admitted and disputed signature has given a report that disputed signature in Ex.B5 Will is not a voluntary signature of Executant and he has stated that it is a traced signature. He has given cogent and valid reasons for coming to the said conclusion. DW2 attesting witness, is working in Lorry company as a Manager. DW3 scribe originally worked as a Driver and subsequently he worked in Finance Company. According to them, Palanimalai Gounder informed them about the property bequeathed in the will. But the details of the property are not mentioned in the will. DW2 attesting witness, is working in Lorry company as a Manager. DW3 scribe originally worked as a Driver and subsequently he worked in Finance Company. According to them, Palanimalai Gounder informed them about the property bequeathed in the will. But the details of the property are not mentioned in the will. Further, they have not stated that they saw Palanimalai Gounder signing the Will. The learned appellate judge considered this fact and has accepted the contention of the learned counsel for the 1st Respondent that there are suspicious circumstances with regard to execution of Will. Auditor of Palanimalai Gounder was examined as DW4. Considering the evidences of DW4, the appellate Judge held that he is not a reliable witness and he is an interested witness and he is giving evidence in favour of appellants 1 and 2 and he helped appellants to fabricate the document. Considering the profession of DW4 and nature of evidence given by him, the learned 1st Appellate Judge condemned the DW4. 14. It is well settled that report of handwriting expert must be accepted by courts below with caution. The courts are not prohibited relying on opinion of handwriting expert. The same can be accepted coupled with other facts and circumstances. In the present case, PW2 handwriting expert has given cogent and valid reason for his opinion. The courts below have considered the said report along with other documents and evidence of DW1 to DW4 and also failure of Appellants 1 and 2 to disclose the existence of Will at the earliest, came to correct conclusion that the Will is not a genuine one and the same is finding of fact. There is no error in law. In the circumstances, the Judgments relied on by the learned counsel for appellants do not advance the case of the appellants. On the other hand, the Judgments relied on by the Learned Counsel for the 1st Respondent are squarely applicable to the facts of the present case. Therefore, the substantial question of law is answered against the appellants. 15. In the result, the Second Appeal is dismissed, confirming the judgment and decree of the Courts below. No costs.