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2018 DIGILAW 448 (MAD)

K. Krishnamurthy Achari v. Iyyappan

2018-02-07

M.DURAISWAMY

body2018
JUDGMENT : 1. The above appeal arises against the judgment and decree passed in O.S.No.65 of 2008 on the file of the Additional District Court, Pondicherry at Karaikal. 2. The defendants 1 & 3 are the appellants, the 1st respondent is the plaintiff and the 2nd respondent is the 2nd defendant in the suit, who had died during the pendency of the appeal and his legal representatives were brought on record as respondents 3 to 9. 3. The plaintiff filed the suit in O.S.No.65 of 2008 for partition in accordance with the Will dated 20.07.1984 executed by the grandfather of the plaintiff. 4. The brief case of the plaintiff is as follows: (i) According to the plaintiff, the defendants 1 to 3 are the sons of Katha Perumal Achari and Jayam @ Jayathammal. The plaintiff is the son of the 2nd defendant. According to the plaintiff, the suit property originally belonged to one Marimuthu Achari and after his life time, Natesa Achari became the owner. The defendants' father, who is the grandfather of the plaintiff, viz., Katha Perumal Achari, became the owner of the suit property as the only son of Natesa Achari. The said Katha Perumal Achari executed a registered Will dated 20.07.1984, bequeathing 4 Items of the properties in favour of his wife Jayam @ Jayathammal. The 4th Item of the properties mentioned in the Will is the suit property. (ii) The said Katha Perumal Achari gave life interest to his wife Jayam @ Jayathammal in respect of the house property in Door No.26 situated in Item 4 of the properties. In the Will, the Testator has also given absolute right in respect of the house property in favour of the plaintiff, after the life time of Jayam @ Jayathammal. The said Katha Perumal Achari died on 14.10.1994 and his wife Jayam @ Jayathammal had died on 31.03.1996. (iii) The plaintiff is working at Cecil as Carpenter. When the plaintiff was abroad on 20.03.1988, the defendants tried to partition the properties without his knowledge. When it came to his knowledge, the plaintiff issued an Advocate's notice dated 21.07.2008 and on receipt of the same, the 1st defendant replied through his counsel. In the said notice, he did not deny the execution of the Will. When the plaintiff was abroad on 20.03.1988, the defendants tried to partition the properties without his knowledge. When it came to his knowledge, the plaintiff issued an Advocate's notice dated 21.07.2008 and on receipt of the same, the 1st defendant replied through his counsel. In the said notice, he did not deny the execution of the Will. In the reply, it was averred that even before the death of Jayam @ Jayathammal, 3 properties out of 4 properties mentioned in the Will had been sold. In the reply, it was also stated that in the 4th Item, the defendants were allotted 102 kuzhis each and the plaintiff was given only 10 kuzhis of land with a tiled house and backyard. As per the Will, 4th Item is the property measuring an extent of 42 Ares 35 Centiares, in which the house in Door No.26 is situated. As per Patta in respect of R.S.No.171/9, the extent of 4th Item is 80 Ares 50 Centiares of Punja lands. Out of the total extent of 80 Ares 50 Centiares, as per the Will, the plaintiff is entitled to 42 Ares 25 Centiares with the tiled house. In these circumstances, the plaintiff has filed the suit for partition. 5. The brief case of the defendants 1 & 3 is as follows: In the written statement, the defendants have not denied the execution of the Will dated 20.07.1984. According to the defendants, the plaintiff is entitled to the house at Agraharam Street bearing Door No.26 along with the backyard and the trees standing on it. The defendants have no objection for partitioning of the property as per the Will. The plaintiff cannot claim the total extent of 4th Item as per the Will, except the house site with backyard. The remaining portion was bequeathed in favour of the wife of Katha Perumal Achari. After her demise, as per the Hindu Law, the defendants are entitled to equal share. The plaintiff has filed the suit without understanding the terms of the Will. The present suit has been filed only at the instigation of the 2nd defendant. If at all the plaintiff wants to claim his share, he ought to have filed the suit for recovery of possession and not for partition. In these circumstances, the defendants 1 & 3 prayed for dismissal of the suit. 6. The present suit has been filed only at the instigation of the 2nd defendant. If at all the plaintiff wants to claim his share, he ought to have filed the suit for recovery of possession and not for partition. In these circumstances, the defendants 1 & 3 prayed for dismissal of the suit. 6. The brief case of the 2nd defendant is as follow: According to the 2nd defendant, as per the Patta, the suit property in R.S.No.171/9 were measuring an extent of 80 Ares 50 Centiares, out of which, as per the Will, 42 Ares 35 Centiares was bequeathed by Katha Perumal Achari in favour of the plaintiff. According to the 2nd defendant, the remaining intestate portion of 38 Ares 15 Centiares should be divided equally between the defendants, allotting one-third share each. 7. Before the trial Court, on the side of the plaintiff, 2 witnesses were examined and 9 documents, Exs.A1 to A9 were marked. On the side of the defendants, 2 witnesses were examined. However, there was no documentary evidence marked. 8. The trial Court, after taking into consideration the oral and documentary evidence let in by the parties, passed a preliminary decree for partition, finding that the plaintiff is entitled to 42 Ares 35 Centiares, together with the house in Door No.26 in New Survey No.171/9. Aggrieved over the judgment and decree of the trial Court, the defendants 1 & 3 have filed the above appeal. 9. Heard Mrs.Chitra Sampath, learned Senior Counsel on behalf of Mr.T.S.Baskaran, learned counsel for the appellants and Mr.K. V. Babu, learned counsel for the respondents 1, 3 to 9. 10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the defendants 1 & 3 have admitted the execution of Ex.A9 registered Will dated 20.07.1984. Inspite of the same, the plaintiff examined P.W.2, who is the Attestor of Ex.A9 Will. The evidence of P.W.2 is very categorical about the due execution of the Will. Coupled with the admission made by the defendants 1 & 3 in the written statement, it is clear that Ex.A9 Will dated 20.07.1984 is true and genuine. 11. It is not in dispute that the suit property originally belonged to one Marimuthu Achari and after his death, the property came to the hands of Natesa Achari. Coupled with the admission made by the defendants 1 & 3 in the written statement, it is clear that Ex.A9 Will dated 20.07.1984 is true and genuine. 11. It is not in dispute that the suit property originally belonged to one Marimuthu Achari and after his death, the property came to the hands of Natesa Achari. After the death of Natesa Achari, the property devolved upon his only son Katha Perumal Achari. The said Katha Perumal Achari's wife is Jayam @ Jayathammal. The defendants are the sons of Katha Perumal Achari and Jayam @ Jayathammal. The plaintiff is the son of the 2nd defendant and the grandson of Katha Perumal Achari and Jayam @ Jayathammal. 12. The issue that has to be decided in this appeal is only with regard to the interpretation of Ex.A9 Will. Therefore, it would be appropriate to extract Ex.A9 Will dated 20.07.1984, which reads as follows: “TAMIL” 13. Under Ex.A9 Will, 4 Items of the properties were bequeathed by Katha Perumal Achari in favour of his wife Jayam @ Jayathammal. Item 4 of the properties mentioned in Ex.A9 Will is the suit property. So far as the other 3 Items of the properties are concerned, the said properties were sold by Jayam @ Jayathammal during her life time. Katha Perumal Achari had died on 14.10.1994 and his wife Jayam @ Jayathammal had died on 31.03.1996. In Ex.A9 Will, the Testator has specifically given life interest in respect of the house property bearing Door No.26, which forms part of the property mentioned as Item 4 in Ex.A9 Will. 14. So far as the claim of the 2nd defendant is concerned that he is entitled to one-third share in the remaining portion of 38 Ares 15 Centiares in R.S.No.171/9 is concerned, the trial Court had dismissed the suit. However, the 2nd defendant has not filed any appeal or cross-appeal challenging the same. Therefore, the said finding has become final. 15. The trial Court, while finding that the plaintiff is entitled to an extent of 42 Ares 35 Centiares along with the tiled house bearing Door No.26, has not gone into the recitals found in Ex.A9 Will executed by Katha Perumal Achari. 16. On a reading of Ex.A9 Will, as already stated, absolute right was bequeathed in favour of Jayam @ Jayathammal in respect of the 4 properties. 16. On a reading of Ex.A9 Will, as already stated, absolute right was bequeathed in favour of Jayam @ Jayathammal in respect of the 4 properties. The house property bearing Door No.26 is in Item 4 of the properties mentioned in Ex.A9 Will. So far as the house property is concerned, the Testator has given life interest to his wife Jayam @ Jayathammal and absolute right to the plaintiff. The contention of the plaintiff is that since only life interest was given to Jayam @ Jayathammal and absolute right to him, he is entitled to the entire Item 4 of the property mentioned in Ex.A9 Will. If the intention of the Testator was to give absolute right to the plaintiff in respect of Item 4 of the property mentioned in Ex.A9 Will, which is the suit property, he would not have given absolute right in respect of Item 4 of the property to Jayam @ Jayathammal. Admittedly, Jayam @ Jayathammal and the plaintiff are residing in the house in Door No.26. In order to give a security to his wife Jayam @ Jayathammal, the Testator has given life interest to her in respect of the house property bearing Door No.26 so that she can live peacefully till her life time in the house. Since the Testator had love and affection towards the plaintiff, he had given absolute right to him after the life time of his wife Jayam @ Jayathammal. The Testator has given life interest to his wife in respect of the house property together with the backyard and the trees and appurtenants attached thereto. Segregating the house property in Door No.26 from Item 4, itself, would prove that the intention of the Testator was not to give absolute right in respect of the entire Item 4 of the property to the plaintiff. He has confined the absolute right to the plaintiff only in respect of the house property bearing Door No.26 along with the backyard and the trees standing on it. When the Will is very clear about the absolute right given to the plaintiff, passing of preliminary decree in respect of the entire suit property, which is the property mentioned as Item 4 in Ex.A9 Will, is erroneous. 17. It is settled position that the Court should sit on the arm-chair of the Testator and decide the intention of the Testator. 18. 17. It is settled position that the Court should sit on the arm-chair of the Testator and decide the intention of the Testator. 18. Therefore, for the reasons stated above, I am of the considered view that the plaintiff is entitled to absolute right only in respect of the house property bearing Door No.26 along with the backyard and the trees standing on it as mentioned in Ex.A9 Will. The plaintiff is not entitled to the entire extent of the suit property measuring 42 Ares 35 Centiares. Since the 2nd defendant, who is the father of the plaintiff, had died during the pendency of the appeal, his share in the suit property shall devolve upon his legal heirs viz., the respondents 1, 3 to 9 in accordance with law. 19. For the reasons stated above, the judgment and decree passed by the trial Court are set aside. The plaintiff is entitled only to the house property in Door No.26 along with the backyard and trees standing on it as mentioned in Ex.A9 Will dated 20.07.1984. 20. In the result, the appeal is partly allowed. No costs. Consequently, the connected miscellaneous petition is closed.