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2018 DIGILAW 609 (MAD)

Kuppaswamy Naidu v. Neelavathi Ammal

2018-02-15

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge in this second appeal is made to the judgment and decree dated 11.11.2002, passed in A.S.No.36 of 2001, on the file of the Principal District Court, Chengalpattu, reversing the judgment and decree dated 29.10.1999, passed in O.S.No.102 of 1990, on the file of the Principal Subordinate Court, Chengalpattu. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for partition. 4. The case of the plaintiff in brief is that the plaintiff and the first defendant are sister and brother, being the children of Gopal Naidu and Govindammal and their father Gopal Naidu was the owner of the A schedule property as his ancestral property and the income from the said property was barely sufficient to maintain him and his family and Gopal Naidu was doing milk trade and got good income out of the same and from the income derived from the said trade, he had purchased the properties described in the plaint B schedule and further Gopal Naidu out of his income from the milk trade had purchased the properties described in the plaint C schedule in the name of the plaintiff's mother Govindammal and the income derived from the B schedule properties was also utilised for acquiring the C schedule properties and the C schedule properties were acquired in the name of Govindammal for avoiding the stringent provisions of the Land Ceiling Act and Govindammal had no independent means to purchase the C schedule properties and there are two pumpsets in the two wells situated in the C schedule properties and the pumpsets were installed only by Gopal Naidu and the service connection stands in the name of Gopal Naidu and the water from the pumpsets had been used to irrigate the B schedule properties also. Thus, the plaint B and C schedule properties are the separate properties of Gopal Naidu and Gopal Naidu died intestate in 1972 and Govindammal died in 1982 and the plaintiff and the first defendant, being the legal heirs of Gopal Naidu as well as Govindammal, after their death, they had been enjoying the suit properties jointly and the plaintiff used to take her share of income from the suit properties. Whileso, the first defendant had been recently giving out that Gopal Naidu had left an unregistered Will dated 05.02.1971 in his favour. Whileso, the first defendant had been recently giving out that Gopal Naidu had left an unregistered Will dated 05.02.1971 in his favour. However, the truth, validity and binding nature of the Will is not admitted by the plaintiff and the said Will had been fabricated by the first defendant to grab the suit properties and further, the first defendant had set up a settlement deed dated 27.7.91 said to have been executed in his favour by Govindammal. The truth, validity and binding nature of the same is also not admitted by the plaintiff and the alleged settlement deed was never acted upon. Govindammal was affectionate towards the plaintiff and she had no reasons to discard the plaintiff and execute the settlement deed only in favour of the first defendant and the defendants 2 to 4 claim some interest in the suit properties as having acquired the same from the first defendant. However, the alleged sale transactions entered into between the first defendant and the other defendants are not valid and binding upon the plaintiff and as such the plaintiff is entitled to half share in the suit property and claiming her half share, the plaintiff issued a notice to the defendant and as there was no response to the same, according to the plaintiff, she has been necessitated to lay the suit for partition. 5. The case of the first defendant, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the C schedule properties were purchased by Gopal Naidu in the name of his wife Govindammal for fearing action under the Land Ceiling Act and it is false to state that Govindammal had no independent income to acquire the C schedule properties and that the pumpsets and service connection in the C schedule properties were put up by Gopal Naidu independently. Gopal Naidu while in a sound and disposing state of mind executed a Will dated 05.02.1971, bequeathing the properties described in A and B schedule to the first defendant and on the demise of Gopal Naidu, the first defendant, has been in exclusive enjoyment of the said properties as full owner thereof and the plaintiff and her husband are very well aware of the said Will and Gopal Naidu had celebrated the marriage of the plaintiff by spending a considerable amount and also helped her on many occasions and discharged the debts incurred by her and her husband and Gopal Naidu had also purchased lands in the name of the plaintiff's husband and the claim of the plaintiff that she had been enjoying the share of her income from the suit properties is false and Govindammal executed the settlement deed on 22.07.1971 settling the C schedule properties in favour of the first defendant and the same was acted upon and since then, it is only the first defendant who has been in possession and enjoyment of the C schedule properties as full owner thereof. The plaintiff is not entitled to the plaint schedule properties and the first defendant as the absolute owner of the plaint schedule properties entered into the sale transactions with the defendants 2 and 4 in respect of certain properties and the first defendant had dealt with the properties to the knowledge of the plaintiff and enjoying the same and hence, the suit laid by the plaintiff is not maintainable and liable to be dismissed. 6. The case of the second defendant, in brief, is that after reiterating the contentions putforth by the first defendant in his written statement, according to the second defendant, he had entered into an agreement of sale with the first defendant and his children with regard to items 35 to 37 of the B schedule properties on 21.01.1989 for a consideration of Rs.4,22,400/- and paid Rs. One lakh as advance on the date of agreement and accordingly, he had been in possession of the said lands and the first defendant had also executed a power of attorney in his favour on 02.03.1989 and thus, the second defendant is in possession and enjoyment of the above said items and the plaintiff is not entitled to claim any share in the above said items and hence, the suit laid by the plaintiff is liable to be dismissed. 7. The case of the third defendant, in brief, is that he had purchased the plaint schedule items 43 to 47 from the first defendant and his sons under a registered deed dated 22.11.1982 for Rs.5,800/- and accordingly, enjoying the said items of the properties by obtaining patta paying kist etc., and he is a bonafide purchaser for value and hence, the suit is liable to be dismissed. 8. The case of the fifth defendant, in brief, is that he had purchased C schedule item no.5 from the first defendant and his sons by way of a registered deed dated 01.02.1990 for a sum of Rs.11,000/- and enjoying the same by obtaining patta paying kist etc., and hence, he is a bonafide purchaser for value and the suit is liable to be dismissed. 9. In support of the plaintiff's case PW1 was examined and Exs.A1 to A9 were marked. On the side of the defendants, DWs 1 to 5 were examined and Exs.B1 to B13 were marked. 10. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the suit laid by the plaintiff. On appeal, the first appellate Court, on an appreciation of the materials placed for consideration, was pleased to set-aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff granted the preliminary decree in favour of the plaintiff as prayed for. Impugning the same, the second appeal has come to be laid. 11. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: 1. Whether the suit for bare partition is maintainable and is not barred by limitation? 2. Whether the burden of proof fastened on the appellant to prove the will and after lapse of 19 years is justified in law? 3. 11. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: 1. Whether the suit for bare partition is maintainable and is not barred by limitation? 2. Whether the burden of proof fastened on the appellant to prove the will and after lapse of 19 years is justified in law? 3. Whether the plaintiff has acquiesced of right and allowed the appellant to get the title to the properties? 12. The plaintiff and the first defendant are the children of Gopal Naidu and Govindammal. It is not in dispute that the plaint. A schedule property is the ancestral property of Gopal Naidu. It is also found that the parties are not at dispute that the plaint B schedule properties had been acquired by Gopal Naidu out of the income derived by him from the milk trade carried on by him. It is found that the first defendant examined as DW1 has admitted that his father had been engaged in milk trade. It is also found that the parties are not at dispute that the plaint B schedule properties had been acquired by Gopal Naidu out of the income derived by him from the milk trade carried on by him. It is found that the first defendant examined as DW1 has admitted that his father had been engaged in milk trade. In this connection, DW1 has clearly admitted that his father was engaged in milk trade and out of the income derived therefrom acquired properties and also further admitted that he had acquired properties both in his name, as well as in his wife's name, Govindammal and accordingly, admitted that the properties acquired in the name of Govindammal had been actually acquired only by his father, out of the income derived from the milk trade and also further admitted that there are two pumpsets in the plaint C schedule properties standing in the name of Govindammal and also admitted that the service connection fitted in the above said pumpsets are in the name of his father Gopal Naidu and the water pumped out of the said wells had been utilised by his father for irrigating all his lands and also admitted that there is no document filed by him to show that his mother Govindammal had enjoyed the properties as her own independently and also admitted that there is no document as such standing in the name of his mother for the enjoyment of the C schedule properties as her own and thus, it is found that and as rightly determined by the first appellate Court as far as the B schedule properties are concerned, there is no dispute that they had been acquired only by Gopal Naidu from the income derived from the milk trade and as far as the C schedule properties are concerned, from the admission of DW1 as above stated, it is clearly stated that it is only Gopal Naidu who had acquired the said properties also from and out of the income from the milk trade, in the name of his wife as well as the income derived from the B schedule properties and thus, it is seen that though the C schedule properties stand in the name of Govindammal, they are only the properties of Gopal Naidu as such. 13. 13. It is not in dispute that Gopal Naidu left behind, the plaintiff and the first defendant as his legal heirs, accordingly, the plaintiff claiming her due share in the properties, had come forward with the suit seeking the relief of partition. The plaintiff's case is resisted by the first defendant mainly on the footing that the Gopal Naidu had bequeathed his properties in his favour by way of a registered will date 05.02.1971 marked as Ex.B12. Hence, according to the first defendant, the plaint B schedule properties are his separate properties by virtue of the above said will and the plaintiff is not entitled to claim any share in the same. Further, the first defendant has also projected the case that Govindammal had settled the C schedule properties in his favour by way of a settlement deed dated 22.07.1971 marked as Ex.B1 and thus, he is entitled to the C schedule properties absolutely. However, when it is found, as admitted by the first defendant himself, that it is only Gopal Naidu who had acquired the C schedule properties also in the name of his wife Govindammal and when it is further found that Govindammal had no independent income to acquire the said properties or for that matter, the first defendant had not placed any material to show that Govindammal had separate means to acquire the C schedule properties and further, as above seen, the first defendant has not placed any material to show that the C schedule properties had been enjoyed by Govindammal as the absolute owner thereof, it is found that as rightly determined by the first appellate Court Govindammal would not be competent to settle the C schedule properties in favour of the first defendant by way of Ex.B1 settlement deed. Therefore, as rightly determined by the first appellate Court, though Ex.B1 could be termed as having been executed by Govindammal in favour of the first defendant, inasmuch as Govindammal had no legal competency to execute such a settlement deed in favour of the first defendant, she not being the title holder of the C schedule properties as such, it is found that the settlement deed Ex.B1 is not a valid document and it would not, in any manner, bind the defendant. 14. Therefore the further question that remains for consideration in this matter is the validity of the Will marked as Ex.B12. 14. Therefore the further question that remains for consideration in this matter is the validity of the Will marked as Ex.B12. Now according to the plaintiff, her father had not executed Ex.B12 Will in favour of the first defendant bequeathing the properties and it is her specific case that the said Will had been fabricated by the first defendant with a view to grab the suit properties so as to avoid giving a share to her with reference to the same. In such view of the matter, as rightly determined by the first appellate Court, it is for the first defendant to establish the authenticity of Ex.B12 Will that it had been duly and legally executed by Gopal Naidu in his favour as mandated under law. 15. In this connection, the first defendant has admitted during the course of cross examination that at the time of the execution of Ex.B12 will, he was not present and he came to know about the will only after the demise of his father and further, according to him, his father had not apprised about the execution of the will during his life time and not been apprised of the said document by the attestors and further, according to him, he does not know who had written the will and does not know whether the scribe of the will is alive or not. It is the case of the first defendant that the will in question Ex.B12, had been scribed by A.V.Sundararajan and attested by Kannaiah Naidu, Manicka Asari, Sadagopa Naicker, Loganathan and Balaraman Naicker. However, in the written statement, the first defendant has not averred anything about the death of the above said attestors of the Will in question. During the course of his evidence, he would claim that neither scribe nor the attestors to the Will are alive and therefore, according to him, all the said persons are dead. However, during the course of cross examination, he has admitted that he does not know whether the scribe of the will is still alive or not. Therefore, it is found that DW1 is not sure whether the scribe is alive or dead and there is no material forth coming, on his part to show that the scribe of the will Ex.B12 is dead. Therefore, it is found that DW1 is not sure whether the scribe is alive or dead and there is no material forth coming, on his part to show that the scribe of the will Ex.B12 is dead. Further, DW1, during the course of cross examination would admit that there are variations in the signatures of his father contained in the will and further according to him, he is in possession of other documents containing the signature of his father and the said documents are now in bank. Therefore, it is found that when even according to DW1, the signature of his father contained in Ex.B12 vary with each other and when it is his further case that the other documents containing his father's signature are very much available or the same are in the custody of the bank, as rightly determined, in order to prove the authenticity of the will, the defendant should have subjected the disputed signatures found in the will with the admitted signatures of his father by an expert. However, for the reasons best known to the first defendant, he has not resorted to the above said course. Now, according to the first defendant, five persons had attested Ex.B12 Will and he had not filed any document to show that the attestors had died and also not filed any document as to when they had died and accordingly, DW1, the first defendant, has admitted that he is not acquainted with the signatures of the attestors of the will and as already seen, he was not present at the execution of the will and he came to know about it only after the demise of his father. Therefore, it is found that as per the evidence tendered in this matter, the attestors of the will had expired, but a challenge has been thrown to the same by the plaintiff and accordingly, it is seen that DW1 has been cross examined on the above aspects, as to whether he had filed the death certificate of the attestors to establish that they are actually dead. This would assume importance again, as though in the course of chief examination, DW1 would claim that the scribe of the will is also died, however, during the course of cross examination, he would state that he does not know whether the scribe is alive or not. This would assume importance again, as though in the course of chief examination, DW1 would claim that the scribe of the will is also died, however, during the course of cross examination, he would state that he does not know whether the scribe is alive or not. Such being his evidence, accordingly, it is found that he has been cross examined as to the factum of the death of the attestors, on the line as to whether he had produced the death certificates of the attestors to establish the factum of their death. However, according to the first defendant, he has not produced the death certificates of the attestors. Be that as it may, when it is found that according to the first defendant, the attestors are dead, still as provided under Section 69 of the Indian Evidence Act, the first defendant has to establish the proof of Ex.B12 will and accordingly, it is noted that he must atleast prove that the attestion of one attesting witness is in his hand writing and that the signature of the person who had executed the will is in the hand writing of that person. Therefore, from Section 69 of the Indian Evidence Act, it is found that in the absence of the attestors, the proof of the will has to be established by the propounder to establish that atleast the attestation of one attesting witness found in the document is in his hand writing and that the signatures of the person who had executed the will is in the hand writing of that person. As above seen, according to DW1, he was not present at the time of Ex.B12 will and had come to know only after the demise of his father and further according to DW1, the signature of his father found in Ex.B12 will vary with each other and accordingly, when DW1 is not sure as to whether the said signature is that of his father, atleast, to satisfy the ingredients of Section 69 of the Indian Evidence Act, DW1 should have subjected Ex.B12 will for expert's scrutiny with the admitted signatures of his father found in the other document which are stated to be available with the first defendant. However, as rightly determined by the first appellate Court, one of the essential ingredients for the compliance of Section 69 of the Indian Evidence Act i.e., as to the proof of the signature of the person executing the document in question is actually in the hand writing of that person, it is found that there is nil material on the side of the first defendant. As regards the other essential ingredient for the proof of the will, as per the Section 69 of the Indian Evidence Act, the attestation of one witness in his hand writing, in this connection, the first defendant has examined one Govindasamy, son of Loganathan as DW3 and DW3, during the course of chief examination would state that his father's signature is found in Ex.B12. However, his claim that he is the son of Loganthan has been challenged by the plaintiff and in this connection, during course of cross examination, DW3 would admit that he does not know the father's name of Kannaiah Naidu, Manicka Asari, Sadagopa Naicker and further, he has also admitted that he is in possession of the document containing the signature of his father and further, he has also admitted that in the other document in which his father's signatures are available, the same contains both his name and the address, whereas in Ex.B12, the name and address of the attestors are not mentioned and further, a suggestion has also been put to DW3 that he is not the son of Loganathan. No doubt, DW3 has denied the same. It is thus found that when the status of DW3, as the son of Loganathan, itself in dispute and not admitted by the plaintiff and other than stating that his father's signature is in Ex.B12, when according to DW3, in the other document containing the signatures of his father's, the name and address had been incorporated, whereas in Ex.B12 the same is missing and when there is no safe material to hold that DW3 is the son of Loganathan, a serious doubt arises as to whether DW3 would be competent to speak about the attestation of Loganathan as such. Therefore, it is seen that as rightly determined by the first appellate Court, from the above evidence of DW3, we cannot safely conclude that the first defendant has established the authenticity of will as per the requirements of law, particularly, the essential ingredient above pointed out and adumbrated under section 69 of the Indian Evidence Act cannot be held to have been satisfied by the evidence of DW3 as such. As already seen, the first defendant has not established that his father's signature is really available in Ex.B12 will, as according to him, he was not present at the time of the execution of the same and that the signatures found in Ex.B12 vary with each other. Such being the position, as rightly determined by the first appellate Court, the first defendant has miserably failed to establish the genuineness of Ex.B12 will as mandated under law and in such view of the matter, no exception could be taken to the determination of the first appellate Court that the will in question has not been duly established by the first defendant as required by law. 16. Now according to the first defendant, his father had spent a considerable amount in order to perform the marriage of the plaintiff and also subsequent to the marriage, supported her financially and also discharged the debts incurred by her and her husband and also his father had purchased properties in her name etc., however, the same had been denied by the plaintiff. With reference to the above case, there is no material forth coming on the part of the first defendant and therefore, it is found that the above said defence had been projected by the first defendant solely with a view to avoid the claim of share in the suit properties by the plaintiff. 17. With reference to the above case, there is no material forth coming on the part of the first defendant and therefore, it is found that the above said defence had been projected by the first defendant solely with a view to avoid the claim of share in the suit properties by the plaintiff. 17. It is further found that as per the case of the first defendant, he had been enjoying the properties left by his father to discharge the debts incurred by him, as per the terms of the will and though, it is claimed that he had acquired the properties comprised in the will pursuant to the demise of his father, according to DW1, he does not know as to, to whom his father had been indebted and does not know the extent of debts incurred by his father and further, no material has been placed to evidence that DW1, the first defendant had discharged any of the debts said to have been incurred by his father as recited in the Will. Further, if really Gopal Naidu had intended to bequeath the suit properties in favour of the first defendant and had also desired that the first defendant should discharge his debts, naturally on the execution of the Will, Gopal Naidu would have apprised of the same to the first defendant impressing upon him that he should discharge the debts incurred by him explaining about the nature of the debts and to whom they are to be paid. However, when it is found from the evidence of DW1, that he does not know the nature of the debts incurred by his father and to whom he had been indebted and when there is no material to place that the first defendant has indeed discharged the said debts, it is found that inasmuch as the said will had been concocted, such recitals had been incorporated thereunder, so as to give a true picture as if Gopal Naidu has spent a considerable amount for the plaintiff, his daughter and her husband as recited in the will. In toto, it is found that the first defendant has miserably failed to established that Ex.B12 Will has been truly executed by his father and further, it is found that the first defendant has miserably failed to establish the validity of the said will as mandated under law. In toto, it is found that the first defendant has miserably failed to established that Ex.B12 Will has been truly executed by his father and further, it is found that the first defendant has miserably failed to establish the validity of the said will as mandated under law. Accordingly, it is seen that the first appellate Court has rightly determined that Ex.B12 will is not a true, valid document and not at all binding upon the plaintiff. 18. The counsel for the appellant in support of his contentions placed reliance upon the decisions reported in 1992 II LW 523 (Jayalakshmi ammal vs. K. Lakshmi Iyengar), AIR 1976 Gau 94 (Chandra kanta medhi and others Vs. Lakheswar Nath and others). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable to the case at hand. 19. In the light of the above discussions, it is found that the suit laid by the plaintiff for partition seeking her due share in the suit properties as one of the legal heirs of Gopal Naidu is maintainable and there is no material placed on the part of the first defendant to hold that the suit laid by the plaintiff is barred by limitation. It has not been established by the first defendant or the other defendants that the properties involved in the matter had been enjoyed by the first defendant beyond the statutory period to the knowledge of the plaintiff as the full owner thereof excluding her title etc., and thereby prescribed adverse title and therefore, there is no question of the plea of limitation in the institution of the suit laid by the plaintiff. Further, it is found that the first defendant being the propounder of the Will is bound by law to establish the authenticity of the same and he cannot be allowed to take shelter and seek excuse from establishing the genuineness of the same due to lapse of time and such allowances cannot be extended in his favour for his failure to establish the genuineness of will in question. It is further found that no material has been placed by the first defendant or the other defendants that the plaintiff has acquiesced the right in respect of the suit properties in favour of the first defendant and allowed him to secure the title with reference to the same and in such view of the matter, the substantial questions of law formulated in this second appeal are answered in favour of the plaintiff and against the defendants. 20. In conclusion, the second appeal fails and is accordingly dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.