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2021 DIGILAW 1825 (MAD)

Asothai v. Chinnasamy Udayar (Died)

2021-06-30

RMT.TEEKAA RAMAN

body2021
JUDGMENT : The plaintiff is the appellant herein. 2. For the sake of convenience, the parties are referred to as per ranking before the lower Court. 3. The plaintiff filed a suit for declaration of title to the suit property and for Permanent Injunction against the defendants 1 to 3 herein. 4. The appellant is permitted to represent herself as the Power Agent-Ramadoss in the year 2017. The first respondent-Chinnasamy Udayar, President of Banghava Kula Sangam has died. The name of R. Athimulam has to be recorded in the place of Chinnasamy Udayar as the President of Banghava Kula Sangam. Memo filed and the same is recorded. 5. The case of the plaintiff is that the suit property is originally belonged to one Manicka Udayar under Ex.A1 Sale Deed having purchased from Ariyalur Co-operative Building Society and he had raised funds by executing mortgage of the property under Ex.A7 and also made repayment as per Ex.A6. Subsequently, the said Manicka Udayar during his lifetime had executed Ex.A2 Will dated 17.03.1977 in favour of his sister's daughter Chellammal and the said Chellammal had executed Settlement Deed under Ex.A4 on 05.01.1980 under Ex.A4 and the defendants 1&2 are her cousins trying to interfere with the possession of the property and hence she filed a suit for the above relief arraying the third defendant in the individual capacity who is a local politician. Based upon the written statement filed by the third defendant, the third defendant has been made as a representing capacity on behalf of the "Banghava Kula Sangam". 6. In the written statement filed by the third defendant on behalf of the sangam, a specific plea was raised that the deceased Manicka Udayar was acting as a Manager of the sangam and the sangam had received so much of amount as donation and the property was purchased in the name of the sangam in the year 1951 and they were running an hostel for the students of their community and hence claimed the third defendant is the owner of the property. 7. During the time of trial, the plaintiff examined herself as P.W.1. Her husband was examined as P.W.1 and one of the sons of the attestor (deceased attestor of the Will was examined as P.W.2). P.W.3 to P.W.5 were also examined. P.W.4 has not come for the cross-examination and hence on an endorsement, his evidence was eschewed. 7. During the time of trial, the plaintiff examined herself as P.W.1. Her husband was examined as P.W.1 and one of the sons of the attestor (deceased attestor of the Will was examined as P.W.2). P.W.3 to P.W.5 were also examined. P.W.4 has not come for the cross-examination and hence on an endorsement, his evidence was eschewed. Exs.A1 to A18 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Exs.D1 to D4 were marked. 8. On consideration of both oral and documentary evidence, the trial Court accepted the case of the plaintiff and held that Ex.A2 Will executed by Manicka Udayar in favour of his sister is true, valid and genuine. So also the settlement Ex.A3 is also valid. Accordingly, held that the plaintiff is entitled to the declaration of title and based upon Exs.A9 to A18 also held that they are in possession of the suit property. 9. Aggrieved against the said decision, the defendant had filed A.S.No.77/2001 and the learned District Judge has allowed the appeal and dismissed the suit and hence the Second Appeal. 10. The above Second Appeal was admitted on the following Substantial Questions of Law:- (i) Whether the judgment of the Lower Appellate Court which has omitted to consider the relevant evidence and has taken into consideration the evidence which are inadmissible in law to reversing the judgment of the learned District Munsif is substantial in law? (ii) Whether in law the respondent who has failed to establish his cases that the property belongs to Sangam can challenge the Will Ex.A1 especially when the respondent has no caveatable interest to challenge the Will? 11. Heard Mr. S. Parthasarathy, learned Senior Counsel appearing for the appellant and Mr. T. Murugamanickam, learned Senior Counsel appearing for the respondent. 12. Perused the records. 13. Mr. S. Parthasarathy, learned Senior Counsel has made submissions in connection with the Substantial Questions of Law has framed above. Mr. T. Murugamanickam, learned Senior Counsel has made submissions in support of the judgment of Lower Appellate Court. 14. The contention of the learned Senior Counsel Mr. S. Parthasarathy for the appellant is that based upon Exs.A1, A7, A8, A2 and A4, the plaintiffs have become owners of the property and the defendants 1,2 who are the cousin brothers of the plaintiff have no right over the property. 15. Mr. 14. The contention of the learned Senior Counsel Mr. S. Parthasarathy for the appellant is that based upon Exs.A1, A7, A8, A2 and A4, the plaintiffs have become owners of the property and the defendants 1,2 who are the cousin brothers of the plaintiff have no right over the property. 15. Mr. T. Murugamanickam, learned Senior Counsel could contend that the third respondent is a true owner. According to the defendant the alleged Manicka Udyar is only a Manager of a particular District of the Society namely "Bhargava Kula Sangam" so he is not the owner of the property and from and out of a donation received on behalf of "Bhargava Kula Sangam" the suit property was purchased for the benefit of the sangam and draw my attention to the evidence of D.W.2 and D.W.3 and the first substantial question of law, this Court has to consider whether the Manicka Udayar is the owner of the property or the third defendant is the owner of the property. In other words ownership of the testator is under question by the third defendant sangam. 16. It appears from the records that initially the defendants 1&2 are filed written statement subsequently remained ex-parte. As stated supra, the third defendant was arrayed as a party in an individual capacity at the first instance. Subsequently, by way of amendment he was made as a representative capacity of "Barghava Kula Sangam" and he had filed written statement. 17. The gist of the written statement is that suit property was purchased by Manicka Udayar for running an hostel. Subsequently, filed an another additional written statement denying the possession of the plaintiff and yet another written statement questioning the deficiency of the Court Fee. Before the trial Court, defendants 1&2 were set ex-parte assumes significance. 18. After hearing the rival submissions and after perusing the oral and documentary evidence, it is seen that the said Manicka Udayar under Ex.A1 Sale Deed had purchased the schedule property from Ariyalur Co-operative Building Society. Under Ex.A1 Sale Deed, it is mentioned in the name of the said Manicka Udayar. Accordingly, it is seen that Ex.A1 Sale Deed is in the individual capacity dated 30.06.1951 and he had appears to have exercised his right of ownership by borrowing amount from various persons as could be seen from Ex.A7 pronote and Ex.A7 pronote which has been given as collateral to the mortgage. 19. Accordingly, it is seen that Ex.A1 Sale Deed is in the individual capacity dated 30.06.1951 and he had appears to have exercised his right of ownership by borrowing amount from various persons as could be seen from Ex.A7 pronote and Ex.A7 pronote which has been given as collateral to the mortgage. 19. From the recital under the documentary evidence Ex.A6, this Court seen that the subsequent thereto, the said Manicka Udayar had executed a Will under Ex.A2 in the year 1977 in favour of Chellammal and the said Manicka Udayar died in the year 1977. On his death, Ex.A2 Will to came into force and the Chellammal executed a settlement deed in favour of her son and daughter under Ex.A4 Settlement Deed. 20. As observed earlier, as per Ex.A1 said Sale Deed and Exs.A1, A6 and A7 goes to show that the property was purchased in the individual name of Manicka Udayar and he had exercised his act of ownership over the suit property by borrowing the money by mortgaging the property and executed collateral pronote and the original pronotes were marked under Exs.A6 and A7 which was duly discharged by him subsequently. 21. The plea was raised by the defendant that the property was purchased by the sangam and the Manicka Udayar who was working as a Manager at the relevant point of time had purchased the property in his name to substantiate the said plea they examined D.W.2 and D.W.3. D.W.2 is a person who worked in the panchayat union and retired at the time of the recording of evidence. His evidence is to an extent that during the year 1949 and 1952, he stayed in the hostel run by the Manicka Udyar and it was on the rental premises and in the cross-examination, he had categorically admitted that the place where the hostel run by the Manicka Udayar belongs to grand-father of the Narasimman which is noway connected with the suit property. 22. On perusal of the evidence of D.W.2 and D.W.3, there is no iota of evidence is found in support of the defendant's case. It is to be stated that the so called old student who have studied in the hostel run by the Manicka Udayar have not deposed the nature of the suit property and not deposed about the situs of the suit property also assumes significance. 23. It is to be stated that the so called old student who have studied in the hostel run by the Manicka Udayar have not deposed the nature of the suit property and not deposed about the situs of the suit property also assumes significance. 23. Yet another point is that even as per Exs.B1 and B2, it was only during the year 1989, the said "Barghava Kula Sangam" was established in the Ariyalur whereas the suit property was purchased as early as on 30.06.1951 assumes significance. 24. As per the version of D.W.1 to D.W.3, the said sangam was originally situated only at Salem and there is no iota of evidence to show that even in the year 1949, the sangam had its existence at the said cites is namely Ariyalur no book nor receipt or any document to show the alleged existence of the sangam at the Town of Ariyalur in the year 1949 was not produced before the Court. Accordingly, the trial Court has rightly come to the conclusion that the third defendant is not conducting the case and only the defendants 1&2 are acting as a tool of the defendants 1&2 and hence, the contention of the learned Senior Counsel for the defendant that sangam is the owner of the property without any positive evidence and hence I have no hesitation to hold that the Manicka Udayar is the owner of the property having purchased the suit property as a member of the Co-operative Society under Ex.A1. On an combined reading of the Exs.A1 and A2 Settlement Deed, the plaintiff has successfully demonstrated his title of the suit property by way of testamentary devolution of the title in his favour and also demonstrated his possession of the suit property and accordingly he is entitled for the relief as sought for. 25. Accordingly, I hold that the substantial question of law No.(i) is answered in favour of the appellant/plaintiff and against the defendant. 26. Mr. T. Murugamanickam, learned Senior Counsel could contend that the Death Certificate of said Manicka Udyar is not filed by the appellant. Though two persons said to have been attested the Will-Ex.A2. The evidence of P.W.2 will not satisfy the requirement of under Sections 68 of the Indian Evidence Act and 63 of the Indian Succession Act. 27. As per the pleadings, Manicka Udayar is dead. Though two persons said to have been attested the Will-Ex.A2. The evidence of P.W.2 will not satisfy the requirement of under Sections 68 of the Indian Evidence Act and 63 of the Indian Succession Act. 27. As per the pleadings, Manicka Udayar is dead. As per the the written statement filed by the defendant D1 and D2, the said Manicka Udayar is not heard of for more than 7 to 10 years accordingly they pleaded legal death under Section 107 of the Indian Evidence Act. 28. It is a specific case of the plaintiff in the pleading that both attestor of the Ex.A2 Will and marked Ex.A3 Death Certificate of Karuppa Udayar issued by Tahsildar, Perambalur, one of the attestor and Ex.A18 Death Certificate of Ramasamy Udayar issued by Tahsildar Perambalur. The son of the deceased attestor namely Karuppa Udayar was P.W.2 Chinappa Udayar. He had categorically admitted the signature of the attestor found in the Ex.A2 Will and a snap answer in the cross-examination will not distinct the otherwise cogent and clear evidence of P.W.2. 29. It remains to be stated that Ex.A2 is a Will executed by the Manicka Udayar in his own handwriting otherwise called "Holograph Will" is dated 17.03.1977. 30. In the decision reported in (i) 1990 (1) LW 27 [Suchindra Bali Vs. Rattan Chaman Bali] has held that : "A 'holographic Will' has been defined to be one entirely written, dated and signed by the testator. In this case there is an additional feature that the time of execution of the Will has been written by the testator himself. A Division Bench of the Calcutta High Court has in Ajit Chandra Majumdar v. Akhil Chandra Majumdar A.I.R 1960 Catcutta 551 held that the law makes a great presumption in favour of the genuineness of a holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in a holograph will than where his signature alone appears to either a typed script or to a script written by somebody else. The Supreme Court has in Shashi Kumar's case A.I.R 1964 S.C. 529 placed great reliance on the fact that the will in dispute was a holograph will and admittedly in the hand of the testator and held that it raised a strong presumption of its regularity and of its being duly executed and attested." (ii) (1996) 9 SCC 324 [Joyce Primrose (Mrs) (Nee Vas) V. Vera Marie Vas (Ms) and others] has held that:- "A 'holograph Will' is one which is wholly in the handwriting of the testator. While there is a presumption of regularity and due execution of a Will, in the case of "holograph Wills", the presumption is all the more and a greater presumption and a case of a holograph Will is a special case which will require a different approach in considering the evidence in the case, to find whether the Will has been duly executed and attested. The approach to be made in such cases has been stated by the Constitution Bench in Shashi Kumar Banerjee case. In applying the principles laid down therein to particular cases, the nature of the Will, the pleadings of the parties in the case, facts admitted or proved and the presumptions available in law, will have to be carefully given effect to. It is in this background, the evidence in the case including that of the attesting witnesses should have been examined and what was required was only to formally prove the Will, and very little evidence to prove due execution and attestation of the Will, was alone called for." 31. In respect of the probative value of the "Holograph Will", the Hon'ble High Court in 2000 Madras Law Journal 645 Mr. Jagadeeswari Thirunavukkarasu Vs. Mr. Mathavi Baskar has held that the "Holograph Will" and presumption of genuineness attached to the Will has held that there was nothing unnatural in the Will and it was genuine and validly executed. 32. So also in the decision 1993 (1) LW Page No.580, this Court has held that in A.K. Gopal and 3 others Vs. Vasanthan and 3 others. In respect of the proof of a Will either one of the attesting witness and considering the sufficiency for ascertaining the truth and genuineness of the Will. 33. 32. So also in the decision 1993 (1) LW Page No.580, this Court has held that in A.K. Gopal and 3 others Vs. Vasanthan and 3 others. In respect of the proof of a Will either one of the attesting witness and considering the sufficiency for ascertaining the truth and genuineness of the Will. 33. In the instant case, both P.W.1 and P.W.3 could deposed that they are present during the execution of Ex.A2 "Holograph Will" by the testator Manicka Udayar and two attestors of the Will have died and respective Death Certificates have been marked, Exs.A3 and A18 as extracted supra, and hence the lower Appellate Court has rightly come to the conclusion that the execution of the will was duly proved in view of the evidence of P.W.2 who had recognized the signature of the one of the attestor. 34. It remains to be stated that Ex.A2 is Holograph Will. Keeping in mind the evidential value of the Holograph Will and the law laid down this Court in connection with the said type of the Will, the trial Court has rightly come to the conclusion that the signatures found in Ex.A8 and Ex.A10 are one and the same and hence have come to the conclusion that Ex.A2 is duly executed by the testator is found true and genuineness is hereby restored and contra finding rendered by the Lower Appellate Court shall stands vacated. 35. Though a contention has been raised before the trial Court as well as before this Court that the signature of testator is in 'Tamil'. But whereas the signature of the Manicka Udayar in the pronote Exs.A6 and A8 are in 'English'. The trial Court after comparing the signatures and also the evidence that the said Manicka Udayar after associating himself with "Periyar Iyakkam" has used sign in 'Tamil' and has come to the conclusion that the signature found in the Ex.A2 Will is genuine and accordingly held that the Will is duly proved. 36. In the preceding paragraphs, this Court has categorically rendered a finding that the third defendant has no resemblance of title to suit property and is conducting the case as a tool of the defendants 1&2. Moreover, the trial Court has gone in detail and upheld that Ex.A1 Will is proved in the manner known to law so also Ex.A4 Settlement Deed executed in favour of the plaintiff. Moreover, the trial Court has gone in detail and upheld that Ex.A1 Will is proved in the manner known to law so also Ex.A4 Settlement Deed executed in favour of the plaintiff. Non- examination of the beneficiary of the Will is not fatal to the case of the plaintiff since the Ex.A2 Will itself is a "Holograph will" and the same has been discussed in detail by the trial Court. The said finding trial Court is does not suffer from any irregularity or illegality warranting interference and accordingly, a contra finding of Lower Appellate Court is vacated and as that of trial Court is restored. 37. The learned Senior Counsel for the defendant could contend that in order to safeguard the property the sangam is the contesting his case. The defendants 1&2 who claimed that the Manicka Udayar has obtained legal death has not chosen to contest the case. It is not the case of the defendant the present contesting the third defendant in this regard. Admittedly, the Manicka Udayar is no more and hence Ex.A2 Will came into force, consequently the beneficiary of the Will had executed Ex.A3 Settlement Deed in favour of the plaintiff. 38. Substantial Question of Law No. II:- Keeping in mind the finding rendered in the above paragraphs that the said Manicka Udayar is the true owner of the suit property as per Ex.A1 dated 24.08.1951 and neither the defendants 1&2 nor the defendant No.3 as an caveatable interest in respect of the property as they are total strangers to the suit property. 39. Admittedly, as summarized in the preceding paragraphs, the third defendant is utter stranger to the suit property is disputing the title of the plaintiff under the name and by the name of the sangam. 40. In the decision reported in (2008) 4 SCC 300 [Krishna Kumar Birla Vs. 39. Admittedly, as summarized in the preceding paragraphs, the third defendant is utter stranger to the suit property is disputing the title of the plaintiff under the name and by the name of the sangam. 40. In the decision reported in (2008) 4 SCC 300 [Krishna Kumar Birla Vs. Rajendra Singh Lodha and others] has held that:- (i) a caveatable interest is an interest in the deceased testator's estate which may be affected by grant of probate, and would depend upon the fact situation in each case and a person who would have succeeded to the testator's estate in case of intestate succession would ordinarily have a caveatable interest and any other person must ordinarily show a special interest in the testator's estate; the same would not mean that even if the estate of the deceased is being represented by the legal heirs intestate, caveat can be entertained at the instance of a person who has no real interest but would merely have a contingent interest. (ii) Furthermore, the interest claimed as caveatable interest must not be one which would have the effect of destroying the testator's estate. (iii) Any person claiming any interest adverse to the testator or his estate cannot maintain any application adverse to the testator or his estate cannot maintain any application before the Probate Court and his remedy would be elsewhere. (iv) Caveatable interest is not synonymous with "contention" and hence I find that appellant has no caveatable interest in the suit property and he cannot be allowed and he should not be allowed to muddle with the title and possession of the plaintiff/appellant in the manner so long he was doing and hence I find that he has no caveatable interest to challenge the will since he has got no right to the property at all. 41. Accordingly, the second substantial question of law is answered in favour of the appellant/plaintiff in affirmative against the defendant. 42. In the result, (i) This Second Appeal is allowed. No costs. (ii) The judgment and decree passed by the lower appellate court is set aside and the judgment and decree passed by the trial court is restored.