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2016 DIGILAW 4195 (MAD)

K. R. Sivanandam v. K. S. Subbulakshmi

2016-12-21

G.JAYACHANDRAN

body2016
JUDGMENT : Defendants 6 to 8 and 10 to 16 are the appellants before this Court. In the suit for partition, the trial Court has dismissed the plea of the plaintiffs, which was reversed by the first appellate Court by passing the preliminary decree holding that the plaintiffs are entitled for share in these suit property. 2. In this Second Appeal, the parties are described as per their rank and status shown in the plaint. 3. The brief facts leading to this appeal is as follows:- One K.M.Ramasamy gounder had two wives viz., Kamatchiammal (first wife) and Nagarathina ammal (second wife). The 1st plaintiff is the son of the 2nd wife Nagarathina ammal. Defendants 2 to 4 are brothers and sisters of the plaintiffs. Pending disposal of the suit, the first plaintiff and the first defendant died and their respective legal heirs are brought on record. The suit properties and other items of property were owned by K.M.Ramasamy gounder as his ancestral property. K.M.Ramasamy gounder along with his sons(defendants 5 and 6) born through his first wife have entered into an registered partition deed on 18.08.1978 and as per the partition, 'A' schedule property was allotted to K.M.Ramasamy gounder. By virtue of partition, defendants 5 and 6, who are the sons born through the first wife, got separated from the family and the family property. Thereafter, K.M.Ramasamy gounder along with his children born through the second wife were living together constituting Hindu Joint Family. The first plaintiff and defendants 2 and 3, the children born through the 2nd wife Nagarathina ammal are entitled for 1/4th share in the suit property as members of Hindu Joint Family. On the death of K.M.Ramasamy goundar on 19.09.1995, his 1/4th share got devolves on the first class legal-heir, who are the first plaintiff and defendants 1 to 12. The fact being so, the suit property was sold to the 13th defendant without involving the first plaintiff and defendants 2 to 4, so, it does not bind them. Thus, the first plaintiff is entitled for 1/4th share by birth and 1/40th share as the legal heir of the deceased father. 4. The first defendant in her written statement denied the claim of the plaintiffs. According to the first defendant, K.M.Ramasamy gounder and his issues through both the wives got separated as early as 1969. Thus, the first plaintiff is entitled for 1/4th share by birth and 1/40th share as the legal heir of the deceased father. 4. The first defendant in her written statement denied the claim of the plaintiffs. According to the first defendant, K.M.Ramasamy gounder and his issues through both the wives got separated as early as 1969. The said K.M.Ramasamy gounder inherited one set of property through his ancestrals and another set of property through a settlement deed executed by one Swaminatha gounder, who is the father of the second wife Nagarathina ammal and all the properties were thrown into joint family hotchpot and were enjoyed as a joint family property. Due to misunderstanding with the family members, a Panchayat was convened during the third week of January, 1969 and the properties were divided by metes and bounds and the parties were allotted different shares separately. Family debt of Rs.25,000/- was discharged by K.M.Ramasamy gounder, while the ancestral house and ancestral land were allotted to K.M.Ramasamy gounder and his children born through the first wife, the properties which were settled in favour of K.M.Ramasamy gounder were allotted to the sons of the second wife. The partition was given effect and acted upon by them. The suit schedule properties item Nos.1 to 5 were among the properties allotted to K.M.Ramasamy during the partition effected in the year 1969. The partition was also reduced in writing subsequently on 16.4.1969. The parties have dealt with the properties allotted individually and they encumbered the property or even alienated those properties subsequently. Therefore, the allegation that there was a partition on 18.8.1978 and the properties allotted to K.M.Ramasamy gounder were jointly enjoyed by him and his first wife Kamatchiammal, is incorrect. The reason for the said partition on 18.8.1978 was due to some dispute. Thereafter, there was re-union putting an end to the document created on 18.08.1978. 5. Further, the said K.M.Ramasamy gounder has executed a Will dated 20.08.1981, while he was in a sound disposing state of mind bequeathing the suit properties in favour of his first wife and during his lifetime, he has sold 10 cents of land shown as first item in the suit schedule property to the 13th defendant and put in possession. 5. Further, the said K.M.Ramasamy gounder has executed a Will dated 20.08.1981, while he was in a sound disposing state of mind bequeathing the suit properties in favour of his first wife and during his lifetime, he has sold 10 cents of land shown as first item in the suit schedule property to the 13th defendant and put in possession. On the demise of K.M.Ramasamy gounder on 19.9.1995, the Will has come into effect and as per the Will, except the portion of the property sold by the first defendant himself during his life time to the 13th defendant, the rest of the property get devolves upon the beneficiaries shown in the Will. Therefore, the plaintiffs and other defendants born to the 2nd wife of K.M.Ramasamy have no right in the suit schedule property. The plaintiffs had two other brothers by name K.R.Marappan and K.R.Devadas, but wantonly the plaintiffs have failed to implead them in the suit. Hence, the suit is bad for non- joinder of necessary parties. 6. The trial Court, with the above said pleadings, has framed issues and has examined one Nagarajan as P.W.1, who is the son of the first plaintiff and examined 5 witnesses on behalf of the defendants and after considering oral and documentary evidence as Ex.A1 and Exs.B1 to B9, has dismissed the suit holding that the alleged partition effected during January 1969 is not proved and the partition deed-Ex.A1 has become final and there is no suspicious circumstances shrouded in the execution of the Will, which was marked as Ex.B5, dated 20.08.1981. Therefore, it is true and valid binding on all the parties. Since K.M.Ramasamy gounder has executed the properties in favour of first defendant through Ex.B5 and in turn, the first defendant has executed Ex.B4-Will during pendency of the suit in favour of her children, the plaintiffs are not entitled for any share in the suit property. 7. Aggrieved by the findings of the trial Court, the plaintiffs 2 to 4, who are the legal heirs of the first plaintiff, have preferred an appeal before the first appellate Court. 7. Aggrieved by the findings of the trial Court, the plaintiffs 2 to 4, who are the legal heirs of the first plaintiff, have preferred an appeal before the first appellate Court. The first appellate Court, after re-appreciation of the evidence hold that K.M.Ramasamy gounder had two sets of property, in which one set of property was acquired through his forefather and another set of property was settled in his favour by Swaminatha gounder, who is none other than the father of his second wife Nagarathina ammal. For K.M.Ramasamy gounder through the first wife (Kamatchiammal), two sons and three daughters were born and through the second wife(Nagarathina ammal), five sons and a daughter were born. Out of five sons, two sons by name Marappan and Devadas died as bachelor and intestate. In the partition deed marked as Ex.A1 dated 18.8.1978, there is no reference about the earlier partition alleged to have been taken place on 1969. The recitals show that till the partition, the properties have been jointly enjoyed and from the date of partition, the respective possession has been given individually. Thus, disbelieving the claim of the partition in the year 1969, the appellate Court has rejected the plea of blending of the property got through settlement into common hotchpot. The appellate Court hold that the property settled in favour of K.M.Ramasamy gounder by Swaminatha gounder had never blended. It was treated as separate property and therefore, the oral partition referred in Ex.B1 to B4 indicates only to the partition among the family members of the second wife children regarding the property vested with them through the settlement deed given by their maternal grandfather Swaminatha gounder and the said oral partition does not refer to the ancestral properties inherited by K.M.Ramasamy gounder. The appellate Court thus, concluded that when K.M.Ramasamy gounder has no absolute right over the property, the alleged Will dated 20.08.1981 is unbelievable and not proved in the manner known to law. Since K.M.Ramasamy gounder has excluded the children born through his second wife, by bequeathing the entire property in favour of his first wife is shrouded with suspicion. Since the Will of K.M.Ramasamy gounder disbelieved, the subsequent Will executed by the first defedant Kamatchiammal based on the Will of K.M.Ramasamy gounder has also been rejected. 8. Since K.M.Ramasamy gounder has excluded the children born through his second wife, by bequeathing the entire property in favour of his first wife is shrouded with suspicion. Since the Will of K.M.Ramasamy gounder disbelieved, the subsequent Will executed by the first defedant Kamatchiammal based on the Will of K.M.Ramasamy gounder has also been rejected. 8. Aggrieved by the reversing judgment of the first appellant Court, defendants 6 to 8, 10 to 16, who are the legal heirs of the first defendant and beneficiary of the Will executed by the first defendant, are before this Court by way of the Second Appeal. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:- “(1) Whether the first appellate Court erred in law and misdirected itself in granting the relief of partition merely on the basis of a preamble in Ex.A1 in the absence of any other oral or documentary evidence to controvert the plea of prior oral partition in the year 1969 particularly when it is very much evident from the documents marked as Ex.B1 to B3, Ex.B6 and Ex.B9? (2)Whether the first appellate Court is right in law in not considering the admission made by the 2nd defendant (D.W.5) about the prior oral partition and the consequential enjoyment of the separate blocks of land by the respective sharers over a considerable period of time?” 9. Ex.A1 is the certified copy of the partition deed executed by K.M.Ramasamy goundar and his two sons born through the first wife. The partition deed clearly indicates that it is the partition among the family members in respect of ancestral property acquired by K.M.Ramasamy gounder through devolution. In this partition, the recitals are very clear about the intention of the parties and about the nature of the property. 10. As pointed out by the Courts below that the said K.M.Ramasamy gounder had two sets of properties, in which one set is acquired through his ancestrals and another set is settled for life in favour of K.M.Ramasamy gounder and vested with the children of K.M.Ramasamy goundar born through the 2nd wife Nagarathina ammal. The first plaintiff is one of the son born through K.M.Ramasamy and the 2nd wife Nagarathina ammal. 1978 partition marked as Ex.A1 confines itself with the ancestral properties and silent about the other property settled in favour of K.M.Ramasamy gounder. The first plaintiff is one of the son born through K.M.Ramasamy and the 2nd wife Nagarathina ammal. 1978 partition marked as Ex.A1 confines itself with the ancestral properties and silent about the other property settled in favour of K.M.Ramasamy gounder. K.M.Ramasamy gounder and his legal heirs were clear about the fact that the properties covered under the settlement deed has nothing do with the ancestral property. Those properties were distinctly held by the family members and had never been treated as joint family property. Therefore, the appellate Court has rightly held that if really the properties settled by Saminatha gounder were blended with the ancestral property, then, when partition was effected in the year 1978, there could have been some reference about the property or atleast about the alleged partition. The very absence of such mentioning and the specific recitals found in the preamble, clearly indicates that there was no blending of property. Similarly, the recitals found in Ex.B1 to B3 and B6 to B9 also do not enhance the case of the defendants to substantiate the plea of earlier partition of the year 1969. The partition anything took place in the year 1969 in respect of property settled by Saminatha gounder could only be with reference to the beneficiaries of that settlement deed. The legal heirs of K.M.Ramasamy gounder through his first wife Kamatchi ammal cannot take advantage of arrangement between K.M.Ramasamy and his children born through the second wife to exclude them or deprive them from claiming share in the ancestral property of K.M.Ramasamy gounder. 11. To say in short, the properties settled in favour of K.M.Ramasamy gounder had never been treated as the joint family property. It has been dealt separately and devolved upon the children of Nagarathinam, 2nd wife of K.M.Ramasamy gounder in accordance with the settlement deed. Only the ancestral property, which was subjected to the partition vide Ex.A1 in which the first plaintiff got 1/4th share on his own is available for partition. When the fact being so, the alleged Will dated 20.08.1981-Ex.B5 has not been proved in the manner Will to be proved. 12. One Mr.Shek Davood is examined as D.W.2, who is one of the attesting witness to the Will, which was marked as Ex.B5. He admits that he is not a resident of Kodumudi, which is the place of executor K.M.Ramasamy gounder. 12. One Mr.Shek Davood is examined as D.W.2, who is one of the attesting witness to the Will, which was marked as Ex.B5. He admits that he is not a resident of Kodumudi, which is the place of executor K.M.Ramasamy gounder. He is not a person so well acquainted with K.M.Ramasamy gounder. In the cross examination, he admits that he came to know about K.M.Ramasamy gounder only from the year 1982 and he does not know that K.M.Ramasamy gounder had two wives and he does not know howmany children had K.M.Ramasamy gounder. He has admitted his ignorance about the family details of K.M.Ramasamy gounder and the nature of the property, which was bequeathed under the Will Ex.B5. 13. This Court is aware of the law on Will that the attesting witness need not know the content of the Will. It is sufficient that the witness testifies the execution of Will, signature of the executant and the other witnesses. But, the case of this nature where heir-apparent are excluded patently, there must be some justification for such exclusion and the attesting witness should atleast depose in the manner which will inspire the confidence of the Court to conclude that the said Will ought to have been executed in the manner prescribed under Law. When the Will was executed during the month of September 1982, the witness, who hails from other community and other village was invited to stand as a witness. To ask a person of other community and other village to stand as witness to a Will, the executant must have a strong belief and trust on him. In this case, it is not established that the executor K.M.Ramasamy gounder had long time association with the witness and he had trusted and believed the witness that he will stand the test of judicial scrutiny in future, if the Will is subjected to scrutiny. 14. Therefore, the said witness D.W.2 is a trusted witness for some one else, but not for the executor. It is also suggested in the cross examination to him that he does not know the executor but he is close associates with one Thiyagarajan the document writer and at his request, he has affixed the signature elsewhere and deposed falsely in support of the defence. It is also suggested in the cross examination to him that he does not know the executor but he is close associates with one Thiyagarajan the document writer and at his request, he has affixed the signature elsewhere and deposed falsely in support of the defence. Though the witness has denied the suggestion, the suspicious circumstances under which, the Will has been executed and the admission of the attesting witness about his ignorance of the acquaintance of the executant makes the Will suspicious. Since the Ex.B5 itself has not been proved to be a genuine document, the subsequent will executed by Kamatchiammal has no force. Hence, the first Substantial Question of Law is answered accordingly in favour of the respondents/plaintiffs. 15. In respect of the second question of law, DW5 K.R.Jawahar in his deposition admits about oral partition effected in respect of the property settled by their maternal grandfather through settlement deed on 12.06.1952. He has categorically denied the suggestion that there was a partition among the family members during the month of January 1969. He has deposed that under settlement deed dated 12.6.1952, his maternal grandfather Swaminatha gounder has settled the property in the favour of their father and mother. From his deposition, nothing could be found in favour of the appellants. The categorical admission of D.W.5 is to the effect that the partition held between them is an arrangement of convenience in respect of the properties over which they had vested interest. Swaminatha gounder has settled the property to his grandchildren born through his daughter the second wife Nagarathina ammal and it cannot be taken as common joint family property on blending. 16. Incidentally, in the settlement Ex.B-7 the life interest has been given to his daughter and her husband K.M.Ramasamy. Therefore, any sort of division in respect of the property covered under the settlement deed between beneficiaries of that settlement deed will not have any bearing on the claim for partition over the ancestral property devolved on K.M.Ramasamy goundar. Therefore, the second Substantial Question of Law is also answered accordingly. Since there is no merits in the second appeal, the second appeal is liable to be dismissed. 17. In the result, the Second Appeal is dismissed. Therefore, the second Substantial Question of Law is also answered accordingly. Since there is no merits in the second appeal, the second appeal is liable to be dismissed. 17. In the result, the Second Appeal is dismissed. The judgment and decree of the trial Court in O.S.No.36 of 1997 dated 17.04.2006 is confirmed and the judgment and decree of the first appellate Court in A.S.No.18 of 2007 dated 26.09.2007 is set aside. No costs.