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2018 DIGILAW 2019 (MAD)

E. Arokiaraj Rocky v. E. Soosay Raj

2018-07-03

N.SATHISH KUMAR

body2018
JUDGMENT : 1. This suit has been filed for partition and separate possession of the plaintiff's half share in the suit property and to render true and proper account in respect of the rental income derived from the schedule property from 30.12.2010, when the date of death of Mr.Edmond Soosai till the date of filing of this suit. 2. The brief facts leading to the filing of the suit is as follows: The plaintiff is the brother of the defendant. The property was originally owned by their grand father one Maria Soosai. He has executed the Will dated 22.05.1978 in favour of his son and daughter, namely Edmond Soosai and Anna Mary Francis and he had also given life interest to his wife namely Adaikalam Mary, the plaintiff s grand mother. After the death of the said Adaikalam Mary and the testator, the plaintiff s father Edmond Soosai and sister Anna Mary Francis obtained probate in O.P.No.414 of 1985 from this Court. Thereafter, the son and daughter of the original attestator divided the properties equally. The intention of the testator of the Will was that the property should go to the grand children equally, sons of Edmond Soosai. At the time of execution of the Will, the defendant was aged about 16 years and the plaintiff was in his mother s womb. That was the reason for not including the plaintiff as a beneficiary under the Will. The plaintiff is entitled to equal share in the suit property. The plaintiff s father also executed a settlement deed in favour of his wife on 08.10.2002 and in the above document, it is stated that both the plaintiff and the defendant should enjoy the property equally. Thereafter, the plaintiff and the defendant have entered into an agreement on 12.10.2002 for dividing the suit property and thereafter on 13.06.2008. Since the plaintiff was in his mother s womb at the time of the Will, he is also entitled for a share in the suit property. 3. Denying the allegations, it is the contention of the defendant that the suit for partition is not maintainable and the plaintiff has already got a portion of the suit property by way of settlement deed on 17.02.2011. The settlement deed executed by the father of the plaintiff is void and did not confer any right, except the right of enjoyment of the property, without alienation. The settlement deed executed by the father of the plaintiff is void and did not confer any right, except the right of enjoyment of the property, without alienation. Therefore, the above settlement is not binding on the defendant. Hence, submitted that as per the Will of their grand father, the defendant alone is entitled for the suit property. Hence, prayed for dismissal of the suit. 4. On the above pleadings, originally, this Court has framed the following issues for trial on 13.04.2015. 1. Whether the plaintiff is entitled to claim of partition under section 27(C) of the of the Indian Succession Act 1925 is legally valid or not? 2. What is the real intention of the plaintiff's grandfather Late.A.Maria Soosai for executing a testamentary Will dated on 22.05.1978, after the life time of plaintiff's father Mr.Edmond Soosay Property will go to all the grand children or only to the defendant? 3. Whether any agreement or compromise regarding future partition between the family members was happened in the life time of plaintiff's father Mr.Edmond Soosai or not? 4. Whether the unilateral document of settlement document No.635 /2011dated 17.02.2011 in favour of plaintiff executed by the defendant is estopped the right of the plaintiff for claiming equal share from the ancestral property? 5. Whether the settlement document No.635/2011 dated 17.02.2011 in favour of the plaintiff executed by the defendant gave equal share in the schedule property to the plaintiff or not? 6. Whether the settlement deed unilaterally executed by the defendant in favour of the plaintiff on 17.02.2011 with unequal share prior to partition is in good faith and whether it is binding on the plaintiff? 7. Whether the defendant is liable to render a true and proper account in respect of the rental income derived from the schedule of property from 30.12.2010 when he death of plaintiff's father Edmond Soosai to till date of filing the plaintiff's suit or not? 5. On the side of the plaintiff P.W.1 to 4 have been examined and Ex.P.1 to P.12 have been marked. On the side of the defendant No witness was examined, However, Ex.D1 and Ex.D.2 were marked. Exhibits produced on the side of the plaintiff: S. No. Exhibits Date Description of documents 1. P-1 -- The Geneology list showing the legal heirs of Maria Soosai, plaintiff's grandfather 2. P-2 -- The certified copy of the plaintiff's birth certificate 3. On the side of the defendant No witness was examined, However, Ex.D1 and Ex.D.2 were marked. Exhibits produced on the side of the plaintiff: S. No. Exhibits Date Description of documents 1. P-1 -- The Geneology list showing the legal heirs of Maria Soosai, plaintiff's grandfather 2. P-2 -- The certified copy of the plaintiff's birth certificate 3. P-3 08.10.2002 The certified copy of he settlement deed executed by Edmond Soosay in favour of Mrs.Chelli Edmond 4. P-4 12.10.2002 The certified copy of the undertaking affidavit by the plaintiff and the defendant 5. P-5 13.06.2003 The certified copy of the agreement between the plaintiff and the defendant 6. P-6 17.02.2011 The certified copy of the settlement deed executed by the defendant in favour of the plaintiff 7. P-7 -- The certified copy of the plaint filed in O.S.No.5836 of 2013 on the file of the VIII Assistant Judge, City Civil Court, Chennai 8. P-8 -- The certified copy of the written statement filed in O.S.No.5836 of 2013 9. P-9 31.03.2015 The certified copy of the judgment rendered in O.S.No.5836 of 2013 on the file of VIII Assistant Judge, City Civil Court, Chennai. 10. P-10 26.08.2014 The computer generated copy of the Government guideline value for the schedule property 11. P-11 -- The computer generated copy of the death certificate of Edmond Soosai 12. P-12 -- The birth certificate of Soosai Das Sagayaraj, defendant herein Exhibits produced on the side of the defendants: 1. D-1 -- The cancellation document executed amount plaintiff, defendant and Chelli Edmond 2. D-2 22.06.1982 The computer downloaded copy of death certificate of plaintiff's grandfather Witnesses examined on the side of the plaintiff: P.W.1. E.Arokiaraj Rocky P.W.2 F.Santhosh Kumar George P.W.3 F.Hilariah Sathish P.W.4 A.Chelli Edmond Witnesses examined on the side of the defendant -Nil 6. The learned counsel appearing for the plaintiff would submit that the property was the subject matter of the Will executed by the grand father of the plaintiff and the defendant. The intention of the grand father was to give absolute right to the grand children namely, the plaintiff and the defendant. There are agreements executed by the parties to show that both have equal right in the property. Besides, the defendant has also executed a settlement deed in favour of the plaintiff in respect of 7. The intention of the grand father was to give absolute right to the grand children namely, the plaintiff and the defendant. There are agreements executed by the parties to show that both have equal right in the property. Besides, the defendant has also executed a settlement deed in favour of the plaintiff in respect of 7. It is the further contention of the learned counsel for the plaintiff that the defendant name is not Soosairaj and his name is Sagayaraj and only to suit his convenience and to take advantage of the contention in the Will, he is now claiming to be Susai Raj. Hence, it is the contention of the learned counsel appearing for the plaintiff that the plaintiff is entitled to equal share as per Section 27 of the Indian Succession Act. 8. Whereas, it is the contention of the learned counsel appearing for the defendant that admittedly the suit property originally belonged to the grand father of the plaintiff and the defendant. The grand father has executed a Will giving life interest to his wife, thereafter vested remainder to the defendant. The above Will has been probated and half share was bequeathed to the testator s daughter and remaining property has come to the defendant. However, the defendant, taking into consideration of the relationship, he has executed a settlement deed in respect of the certain portion of the property in favour of the plaintiff. Having taken the property under settlement, he cannot claim partition of half share in the remaining property. It is the contention of the learned counsel that in the Will it is clearly stipulated that the suit property has been bequeathed in favour of the defendant. In fact, even the pleadings of the plaintiff would show that only the defendant is the beneficiary under the Will. Therefore, submitted that the plaintiff is not entitled to any partition. 9. Issues 1 to 7: The relation between the parties is not disputed. It is also not in dispute that the suit property and the other properties originally belonged to the grandfather of the plaintiff and the defendant, one Mr.Maria Soosai. It is also not disputed that the said Maria Soosai left the Will dated 22.05.1978. The above Will has also been probated in O.P.No.414 of 1985. It is also not in dispute that the suit property and the other properties originally belonged to the grandfather of the plaintiff and the defendant, one Mr.Maria Soosai. It is also not disputed that the said Maria Soosai left the Will dated 22.05.1978. The above Will has also been probated in O.P.No.414 of 1985. It is also pleaded in Para 5 of the plaint that since the plaintiff was in his mother s womb, the defendant was made as a beneficiary after the lifetime of their father. The nature of the pleadings in the plaint itself clearly indicates that only the defendant has been made beneficiary under the Will executed by Maria Soosai and the Will has already been probated and proved in the manner known to law in O.P.No.414 of 1985. 10. Further the mother of the parties has been examined as P.W.4. In her cross examination, she has submitted that the defendant s name is Soosai Raj and his original baptism name is Soosai Raj and now he is also called as Soosai Raj Sagaya Raj. She has also categorically admitted that her father-in-law executed the Will bequeathing the property in favour of her first son namely Soosai Raj. The above admission by the mother, who is competent to speak about the name of her son coupled with the fact that the Will has already been proved in O.P.No.414 of 1985 and the pleading in para 5 of the plaint proves that only the defendant is the beneficiary under the Will. 11. P.W.1 in his cross examination has also admitted that as per the Will, absolute right has been given in favour of the defendant Soosai Raj and his only grievance is that since he was not born at the time of the Will, his name has not been included in the Will. When the pleading of the parties to suit itself clearly show that the defendant is the beneficiary under the Will executed by his grandfather Maria Soosai, the plaintiff now cannot claim that his name should have been included in the Will and his name has not been included merely because he was not born at that time. Such a contention cannot be countenanced for the simple reason that the testator had executed the Will bequeathing absolute right only in favour of his grandson, the defendant herein. Such a contention cannot be countenanced for the simple reason that the testator had executed the Will bequeathing absolute right only in favour of his grandson, the defendant herein. At the time of executing the Will, from the pleading and evidence of the parties, it is made clear that the plaintiff was not born. 12. It is further to be noted that the Will dated 22.05.1978 has been probated and proved in the manner known to law and the probate was granted by this Court. Now the plaintiff cannot interpret the Will on the ground that if he had born, he also would have been a beneficiary under the Will. Such a submission on the side of the plaintiff cannot be accepted at all. The testator has taken a conscious decision to bequeath the property in favour of his only grandson who was existing at the time of bequeathing the property. Therefore, the object and the intention of the testator cannot be defeated by the legal heirs taking into consideration of the subsequent conduct of the parties. 13. Further, much emphasis has also been placed on the settlement deed executed by the father in favour of the mother. Of course, Ex.P.3 is the certified copy of the settlement deed dated 08.10.2002 wherein, the father of the plaintiff had executed the settlement deed in favour of the mother of the plaintiff. It is to be noted that admittedly the plaintiff s father had only life interest. Without any right to transfer, alienation etc, as per the admitted case of the parties, any such settlement executed by the father in favour of his wife cannot confer title on the settlee. Therefore, merely because such a document has been executed subsequently, the same cannot defeat the original intention of the testator, who has bequeathed his self earned property in the year 1978 itself. 14. Similarly, much reliance has also been placed on Ex.P.5, the agreement said to have been entered between the plaintiff and the defendant. Of course, Ex.P.5 is an agreement entered between the parties for dividing the properties, its mode of enjoyment, etc. It is only an agreement reached between the parties and subsequently, the same has not been acted upon. Therefore, merely on the basis of the agreement, the plaintiff did not get any absolute right over the property, since the agreement had not conferred any title over the property. It is only an agreement reached between the parties and subsequently, the same has not been acted upon. Therefore, merely on the basis of the agreement, the plaintiff did not get any absolute right over the property, since the agreement had not conferred any title over the property. It is only an arrangement between the parties for proper enjoyment of the property. In the event of failure, utmost the agreement would give cause of action for its enforcement and not confer any absolute right over the property to claim partition. 15. It is further to be noted that it is an unregistered agreement and agreement also recites as if the partition is effected in presenti. Hence, I am of the view that such an agreement to effect any division of the property in presenti requires compulsory registration and hit by Section 17 of the Indian Registration Act. Therefore, I am not able to give any weightage to Ex.P.5. 16. Ex.P.6 is also relied to show that the defendant has also executed a settlement deed in respect of a portion of the property in favour of the plaintiff and the settlement has also been acted upon. The property settled under Ex.P.6 is now being enjoyed by the plaintiff, which is not disputed during the submissions. The settlement has been executed by the defendant out of love and affection and the settlement is in respect of the house along with the land measuring 1129 sq.ft. with the right of the passage. This settlement was executed in the year 2011. The recitals in the settlement also goes to show that the defendant is the absolute owner of the property in view of the Will executed by the grand father. Ex.P.7 is a copy of plaint filed by the plaintiff before City Civil Court, Chennai wherein he has sought relief of mandatory injunction for directing the defendant to act in accordance with terms and conditions of the Memorandum of Understanding entered between the parties on 17.02.2011. In the pleadings of the above suit also, it is the specific case of the plaintiff that he is not the absolute owner of the property as per the Will executed by the grandfather. The written statement filed in the above suit is also exhibited as Ex.P.8. In the pleadings of the above suit also, it is the specific case of the plaintiff that he is not the absolute owner of the property as per the Will executed by the grandfather. The written statement filed in the above suit is also exhibited as Ex.P.8. In the above pleadings also it is the case of the plaintiff herein that his grandfather has not left any Will in his favour and the defendant is the ultimate beneficiary. The suit filed by the plaintiff for mandatory injunction is dismissed mainly on the ground that the Memorandum of Understanding sought to be enforced is not admissible in evidence and require registration. 17. P.W.2 and P.W.3 have been examined on the side of the plaintiff to show that there was an agreement between the parties with regard to the division of the property. As already discussed, the very agreement in respect of the immovable property do not confer any title in the property. Further, the agreement has not been acted upon between the parties. At the most, it could have been enforced by the Court of law. By creating such an agreement in respect of an immovable property, one cannot claim any right over the property. Hence, the evidence of P.W.2 and P.W.3 also have no reliance at all. 18. In view of the above discussions, as the Will itself is not in disputed and it has already been proved in the manner known to law and has been probated by this Court. From the admission of the plaintiff in his pleadings and evidence of P.W.4, mother of the parties, this Court has no other option except to conclude that the ultimate beneficiary under the Will is the Defendant. Merely on the basis of some agreement with regard to the enjoyment of the property between the brothers, the plaintiff as a matter of fact cannot claim right or share in the property. In fact, the defendant has also settled certain property to the plaintiff by way of settlement. Hence, analysing the entire facts and the documents, this Court comes to the conclusion that the plaintiff is not entitled to any share in the suit property as the owner of the property died testate and the Will has also been proved in the manner known to law, the question of applying Indian Succession Act for division of the properties does not arise. 19. 19. As already discussed any agreement with regard to the suit property which was already subject matter of the Will, will not bind the parties. Merely because a settlement was executed by the defendant in favour of the plaintiff in respect of a portion of the property, the same will not give the plaintiff any right to suit schedule properties to claim partition. Therefore, merely because equal share has not been settled under the settlement executed by the defendant in favour of the plaintiff, the plaintiff cannot claim right over the property, which has not been given under the Will. 20. It is further to be noted that merely because the plaintiff's and defendant's father had executed some documents subsequently, that cannot change the intention of the testator. The testator had executed the Will giving absolute interest in the suit property only to his grand son, who is existing at the time of execution of the Will. Merely because, the plaintiff was born subsequent to the execution of the Will, this Court cannot conclude that the plaintiff is also entitled to the property as per the Will. As the plaintiff has not established his right to claim partition, the defendant is not liable to render accounts also. The issues are answered accordingly. 21. In the result, the suit is dismissed. Considering the nature of litigation between the parties, there shall be no order as to costs.