Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 2948 (MAD)

Sathish Kumar v. Krishnaswamy Gounder (died)

2022-08-26

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 03.01.2001 in A.S.No. 165 of 1996 and also in the Cross Appeal on the file of Principal District Court, Coimbatore, confirming and modifying the share in Cross Appeal the Judgment and Decree dated 13.09.1996 in O.S.No. 397 of 1987 on the file of III Additional Sub-Judge, Coimbatore.) 1.The plaintiffs in O.S.No. 397 of 1987 on the file of the third Additional Sub Court at Coimbatore are the appellants herein. 2. O.S.No. 397 of 1987 had been filed by the plaintiffs Satish Kumar and Suresh Kumar against their paternal grand uncle Krishnaswamy Gounder and his son Sreerangaraj and also against their father, A.Rangasamy and also against their paternal uncle A.Rajagopal, seeking partition and separate possession of 5/9th share with respect to the properties given in schedule 'A' to the plaint or with respect to the properties given in schedule 'B' to the plaint and for consequential reliefs of accounts and costs. 3. By Judgment dated 13.09.1996, the suit was partly decreed by holding that the plaintiffs are entitled to an undivided 1/6th share in the properties described in the 'B' schedule to the plaint. 4. Aggrieved by that Judgment, the plaintiffs filed A.S.No. 165 of 1996 before the Principal District Court at Coimbatore. The fourth defendant, A.Rajagopal filed a Cross Appeal in the said Appeal Suit. The first and second defendants filed I.A.No. 787 of 2000 in the Appeal suit under Order 41 Rule 27 Civil Procedure Code to bring on record a further document as additional evidence. 5. By Judgment dated 03.01.2001, the learned Principal District Judge dismissed the Appeal suit and allowed the Cross Appeal and confirmed the Judgment of the Lower Court by modifying the shares of the plaintiffs to 6/18th share in the 'B' schedule properties. The relief of accounting was rejected. The Interlocutory Application filed under Order 41 Rule 27 was allowed and the document was taken on record. 6. Questioning that Judgment, the plaintiffs had filed the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law:- “1. The relief of accounting was rejected. The Interlocutory Application filed under Order 41 Rule 27 was allowed and the document was taken on record. 6. Questioning that Judgment, the plaintiffs had filed the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law:- “1. Whether the Lower Appellate Court is correct in law in holding that Ex.A.16 Will has not been proved in accordance with law especially when the 4th defendant has not produced any materials to show that execution of the Will was surrounded by suspicious circumstances which have not been properly explained?; 2. Is it not necessary for the party disputing the execution of the Will to plead and prove rove existence of suspicious circumstances surrounding the execution of the Will and in the absence of such plea and proof whether the lower Appellate court is correct in law in making a special plea for the 4th defendant and holding against the Will?; 3. Having held the earlier suits between the parties would not constitute res judicata whether the Lower Appellate Court is correct in law that the plaintiffs are estopped from disputing the Ex.B-1 partition and the earlier consent decree to which the plaintiffs are not parties.” 7. Pending the Second Appeal, the first respondent / first defendant Krishnaswamy Gounder died. His son was already on record as the second respondent. His daughter was impleaded as the fifth respondent. The fourth respondent / fourth defendant also died and his legal representatives were brought on record as sixth and seventh respondents. O.S.No. 397 of 1987 [ Sub Court, Coimbatore]: 8. It had been stated in the plaint that the suit properties originally belonged to Kangae Gounder, who had two sons, Chikkai Gounder and Senna Gounder. It was stated that the father and the two brothers were divided in the year 1924. Chikkai Gounder had a son Ayyasamy Gounder. Senna Gounder had a son Krishnaswamy Gounder, the first defendant. It was sated that Ayyasamy Gounder and Krishnaswamy Gounder lived separately and there was no jointness in their holdings over the properties. However, to avoid, any proceedings under the Land Reforms Act, it was claimed that a collusive suit in O.S.No. 139 of 1970 had been filed by Krishnaswamy Gounder. The defendants therein, Ayyasamy Gounder and his sons remained exparte and a preliminary decree of partition was granted. However, to avoid, any proceedings under the Land Reforms Act, it was claimed that a collusive suit in O.S.No. 139 of 1970 had been filed by Krishnaswamy Gounder. The defendants therein, Ayyasamy Gounder and his sons remained exparte and a preliminary decree of partition was granted. Subsequently, a partition deed was also brought about on 28.08.1975. The plaintiffs claimed that the said deed was also a collusive deed and had not been acted upon. It was stated that Ayyasamy Gounder died in the year 1983. It was claimed that he had executed a Will dated 02.05.1981 bequeathing his properties to the plaintiffs. Claiming that if the partition deed is not upheld, then the plaintiffs would be entitled to 5/9th share in the 'A' schedule properties and if the partition deed is upheld, then the plaintiffs would be entitled to 5/9th share in the 'B' schedule properties, the suit had been filed for the aforementioned reliefs. 9. The first defendant Krishnaswamy Gounder filed a written statement denying and disputing the fact that O.S.No. 139 of 1970 was a collusive suit or that the partition dated 28.08.1975 was brought about with fraudulent intention. It had been stated that the properties were always ancestral in nature and there was joint holding of all the properties. It was stated that the plaintiffs are not entitled to any share. It was also stated that the plaintiffs had instituted an earlier suit for partition and separate possession and therefore, a second suit is not maintainable. The Will said to have been executed by Ayyasamy Gounder was specifically denied and disputed. It was urged that the suit should be dismissed. 10. The fourth defendant also filed the written statement wherein it was stated that the plaintiffs had filed an earlier suit for partition in O.S.No. 1807 of 1984 before the District Munsif Court at Coimbatore and that the said suit was pending. It was also stated that the said fourth defendant had filed O.S.No. 484 of 1985 to protect possession of the properties allotted to him. It was specifically stated that the plaintiffs were not entitled to any relief, much less, 5/9th share in the plaint schedule properties. It was also stated that the third defendant had also filed O.S.No. 66 of 1986 which is also pending. It was specifically stated that the plaintiffs were not entitled to any relief, much less, 5/9th share in the plaint schedule properties. It was also stated that the third defendant had also filed O.S.No. 66 of 1986 which is also pending. It was stated that on the death of Ayyasamy Gounder, the properties had been divided between the third and fourth defendants. The Will claimed to have been executed by Ayyasamy Gounder was specifically denied and disputed. It was stated that it was not a genuine document and that it was a fraudulent document. It was stated that the suit should be dismissed. 11. On the basis of the above pleadings, the following issues were framed for trial: “1. Whether the suit schedule properties were the separate properties of Ayyasamy Gounder?; 2. Whether the partition deed dated 20.08.1975 would be binding on the plaintiffs?; 3. Whether the Judgment in O.S.No. 139 of 1970 would act as resjudicata?; 4. Whether the Will said to have been executed by Ayyasamy Gounder dated 02.05.1981 is a valid Will and is a valid document?; 5. Whether the suit is barred by the law of limitation? 6. Whether the suit instituted for setting aside the partition deed dated 20.08.1975 is maintainable?; 7. Whether the first and second defendants are entitled for exemplary costs?; 8. Whether the plaintiffs are entitled to a share in the suit properties and if so, what is the share in each of the property?; 9. Whether the plaintiffs are entitled to partition and separate possession as sought by them?; and 10. To what reliefs?” 12. During the course of trial, the first plaintiff Satish Kumar examined himself as PW-1 and Ponnusamy one of the attestors of the Will of Ayyasamy Gounder was examined as DW-2. The second defendant was examined as DW-1 and the third defendant was examined as DW-2 and the fourth defendant was examined as DW-3. An independent witness was examined as DW-4. 13. The plaintiffs marked Exs. A-1 to A-33. Ex.A-16 was the Will dated 02.05.1981 executed by Ayyasamy Gounder, Ex.A-17 was the plaint in O.S.No. 139 of 1970, Ex.A-18 was the preliminary decree dated 15.04.1970 in the said suit and Ex.A-19 was the Judgment and dated 15.04.1970, Ex.A-32 was the decree in O.S.No. 1807 of 1984 dated 21.04.1989. 14. The defendants marked Exs. B-1 to B135. Ex.B-1 was the partition deed dated 20.08.1975, Exs. 14. The defendants marked Exs. B-1 to B135. Ex.B-1 was the partition deed dated 20.08.1975, Exs. B-2 to B-7 were the patta in the name of Krishnasamy Gounder, Exs. B-8 to B-56 and Ex.B-62 to B-71 were the land tax receipts, Ex.B127 was the plaint in O.S.No. 66 of 1986 numbered as O.S.No. 892 of 1986, and Exs.B-129 and Ex.B-130 were the Judgment and Decree in the said suit. 15. Ex.C-1 dated 11.09.1993, was the copy of the Vardhaman letter and Ex.C-2 was the representation given to Tahsildar, Coimbatore. 16. On consideration of the pleadings and the documentary and oral evidence which had been adduced by the parties, the Sub Judge, Coimbatore, took up for consideration the first, second and third issues. 17. The earlier suit instituted by the first defendant Krishnasamy Gounder in O.S.No. 139 of 1990 seeking partition and separate possession was examined. It must be kept in mind that the plaintiffs have alleged that the said suit was a collusive suit instituted to avoid the lands from being acquired under the Lands Ceiling Act. However, it must also be kept in mind that subsequent to the decree in the said suit, the parties had entered into a partition deed and lands had been divided between Ayyasamy Gounder and Krishnaswamy Gounder. 18. It was held by the Sub Judge that the suit properties were the joint family properties of Ayyasamy Gounder and Krishnaswamy Gounder and that they were not the separate properties of Ayyasamy Gounder. The partition deed dated 20.08.1975 in Ex.B-1 was found to be true document. It was also held that the decree obtained in O.S.No. 139 of 1970 was not the result of collusion among the parties to that suit. 19. Thereafter, the District Munsif took up consideration of the fourth issue, namely, the truth and validity of the Will said to have been executed by Ayyasamy Gounder dated 02.05.1981. It had been marked as Ex.A-16. It was found that the Will had been executed contrary to the terms of the partition deed Ex.B-1 and that Ayyasamy Gounder did not have any right over the B schedule properties and that he had an undivided 1/3rd share in the B schedule properties alone. It had been marked as Ex.A-16. It was found that the Will had been executed contrary to the terms of the partition deed Ex.B-1 and that Ayyasamy Gounder did not have any right over the B schedule properties and that he had an undivided 1/3rd share in the B schedule properties alone. It was also found that the evidence of PW-2, the attesting witnesses was not convincing and therefore, it was concluded that the Will had not been proved in manner known to law and was not a true document. 20. It was also held that there was no necessity for the plaintiffs to have sought a relief to declare the partition deed Ex.B-1 as null and void and not binding on them. 21. It was also found that the Vardhaman letter dated 11.09.1983 produced as Ex.C-1 was not binding on the plaintiffs. It was also found that the earlier suit instituted by the plaintiffs in O.S.No. 1807 of 1984 would not act as a bar to the plaintiffs to institute the present suit. It was also found that under Ex.B-1 the properties had been divided in the year 1975 and protesting the same, the father of the plaintiffs Rangasamy/3rd defendant had not taken up any steps and it was therefore held that the suit was barred by law of limitation. 22. It was finally found that under the partition deed Ex.B-1, the properties described in B schedule to the plaint had been allotted to Ayyasamy Gounder and that, Ayyasamy Gounder and his two sons, namely, the third and fourth defendants were each entitled to an undivided 1/3rd share in those properties. 23. On the death of Ayyasamy Gounder, it was held that his 1/3rd share must again be divided among his two sons and the two plaintiffs, who were his grandsons and applying that particular ratio, it was held that the plaintiffs would each get an undivided 1/12th share and totally an undivided 2/12th share or 1/6th share in the 'B' schedule properties. The third defendant was held entitled to undivided 5/12th share and the fourth defendant was also stated to be entitled to an undivided 5/12th share. The issues were answered accordingly and the suit was partly decreed as above. A.S.No. 165 of 1996 / Cross Appeal in A.S.No. 165 of 1996/I.A.No. 787 of 2000 in A.S.No. 165 of 1996 (Principal District Court, Coimbatore]: 24. The issues were answered accordingly and the suit was partly decreed as above. A.S.No. 165 of 1996 / Cross Appeal in A.S.No. 165 of 1996/I.A.No. 787 of 2000 in A.S.No. 165 of 1996 (Principal District Court, Coimbatore]: 24. The plaintiffs filed A.S.No. 165 of 1996 aggrieved by the share granted in the preliminary decree and the fourth defendant also filed a cross objection. The first and second defendants filed I.A.No. 787 of 2000 seeking to produce the copy of the plaint in O.S.No. 1807 of 1984 as an additional document. 25. The learned Principal District Judge framed necessary points for consideration and in the first instance examined whether the decree in O.S.No. 139 of 1970 was a collusive decree and whether the present suit was barred by resjudicata in view of the said decree and whether the plaintiffs were estopped from claiming any right over the suit properties and whether the document produced as additional evidence can be admitted to evidence. 26. With respect to I.A.No. 787 of 2000, it was stated that the said document, namely, the plaint in O.S.No. 187 of 1984 is a relevant document and since during the course of trial, the decree in the said suit had been produced, the parties would not be prejudiced by the production of the copy of the plaint and viewing from that particular angle, the said application was allowed and the plaint was marked as Ex.B-136. 27. Thereafter, the learned Principal District Judge took up for discussion the facts consequent to institution of the suit in O.S.No. 139 of 1970 by the first defendant Krishnaswamy Gounder against his brother Ayyasamy Gounder and also against the second and third defendants. The learned Principal District Judge held that it cannot be held that any suit be termed as collusive and that any decree could be termed as obtained through collusive without there being necessary pleadings and proof to that effect. 28. The plaint in the instant case was examined and it was observed that except for vague allegations of apprehension that lands might be acquired under the Land Ceiling Act and Ayyasamy Gounder was encouraged to litigate in O.S.No. 139 of 1970 and had remained exparte, there was no evidence produced to substantiate those apprehension. It was also stated that the individual named in the plaint, Kalappa Gounder was not examined as a witness. It was also stated that the individual named in the plaint, Kalappa Gounder was not examined as a witness. It was found that subsequent to the decree in O.S.No. 139 of 1970, the parties had also entered into a partition deed marked as Ex.B-1 and that the properties had been allotted to each branch, namely, the branch of Ayyasamy Gounder and the branch of Krishnaswamy Gounder. Hoding that the plaintiffs had deliberately held out that the suit in O.S.No. 139 of 1970 was collusive in nature, the said contention was rejected and the issues were answered that the said suit was not a collusive and that the decree was not the product of collusion. 29. Thereafter, the learned Principal District Judge examined the impact of Ex.B-1, namely, the partition deed dated 20.08.1975 and found that it had been entered into consequent to the decree in O.S.No. 139 of 1970 and also observed that the plaintiffs had not sought any relief to set aside the partition deed and therefore, upheld the said partition deed. 30. Then, the Principal District Judge took up for consideration the Will dated 02.50.1981 said to have been executed by Ayyasamy Gounder and marked as Ex.A-16. The evidence of PW-2 was analysed and it was found that it was in conformity with Section 68 of the Indian Evidence Act 1872 and was also found that no suspicious circumstances were projected by the defendants and taking an over all view of the evidence adduced, Principal District Judge held that the Will stood proved. 31. It was also observed that the properties described in the Will belonged to Ayyasamy Gounder and his two sons Rangasamy and Rajagopal, the third and fourth defendants. It was therefore held that the Will was true only to the extent of 1/3rd share in the properties mentioned therein. After holding so, the Principal District Judge then held that the Will was the effect of the handiwork of the mother of the plaintiffs and her brother and stating that there were suspicious circumstances, held that the Will was not a genuine document. The vardhaman letter marked as Ex.C- 1 was also rejected by the Principal District Judge. 32. Thereafter, the Principal District Judge proceeded to determine the shares to which the plaintiffs will be entitled to. The vardhaman letter marked as Ex.C- 1 was also rejected by the Principal District Judge. 32. Thereafter, the Principal District Judge proceeded to determine the shares to which the plaintiffs will be entitled to. It was found that in the 'B' schedule properties which was allotted to Ayyasamy Gounder under Ex.B-1, Ayyasamy Gounder and his two sons Rangasamy and Rajagopal were each entitled to an undivided 1/3rd share. In view of the said conclusion, the Principal District Judge held that the 1/3rd share allotted to Ayyasamy Gounder will once again devolve to Rangasamy and Rajagopal, the third and fourth defendants and therefore, on working out the shares of the respective parties, held that the plaintiffs were entitled to 6/18th share in the 'B' schedule properties to the Will. The decree of the trial Court was accordingly modified. S.A.No. 1498 of 2001: 33. The substantial questions of law which had been framed revolve around the proof of Ex.A-16, the Will of Ayyasamy Gounder and the observation of the First Appellate court that the plaintiffs were estopped from questioning Ex.B-1 partition deed between Ayyasamy Gounder and Krishnaswamy Gonder. 34. With respect to the third substantial question of law, it must be held that Ex.B-1 partition deed had been entered into between Krishnaswamy Gounder on the one hand and Ayyasamy Gounder on the other hand. The properties were considered to be joint family properties. They were stated to be joint family properties in the plaint in O.S.No. 139 of 1970 instituted by Krishnaswamy Gounder against Ayyasamy Gounder. 35. In the said suit, Ayyasamy Gounder remained exparte. This would indicate that he admitted to the averments made in the plaint. A perusal of Order VIII of CPC would indicate that even if a written statement had been filed and if a particular averment in the plaint had not been specifically denied, it could be taken that the defendant admits to that averment. Under Section 58 of the Indian Evidence Act 1872 a fact which is admitted need not be proved except when the Court calls upon the party to prove it. Under Order 12 rule 6 of the CPC, a Judgment could be given on admission. 36. Taking all these provisions together, the only conclusion which can be reached is that the properties were the joint family properties of Ayyasamy Gounder and Krishnaswamy Gounder. Under Order 12 rule 6 of the CPC, a Judgment could be given on admission. 36. Taking all these provisions together, the only conclusion which can be reached is that the properties were the joint family properties of Ayyasamy Gounder and Krishnaswamy Gounder. Therefore, once they were held to be joint family properties, a partition to divide the properties is lawful. Accordingly, in the absence of pleadings in conformity under Order VI Rule 4 CPC, relating to fraud in the plaint with respect to the institution of the suit in O.S.No. 139 of 1970 and further in the absence of examining as a witness, Kallappa Gounder, who is named in the plaint as a witness, I hold that the decree in O.S.No. 139 of 1970 had been lawfully obtained and the partition deed under Ex.B-1 had been lawfully entered into by the parties. 37. Once that premise is established, the fact that the plaintiffs had instituted an earlier suit in O.S.No. 1807 of 1983 has also to be considered and though the said suit was permitted to dismissed for non prosecution, the issue of abandonment of a claim can also be examined. Under Order 23 Rule 1(4) CPC, if there is abandonment or relinquishment of a claim, a subsequent suit cannot be laid. However, the substantial question of law is confined to the principle of estoppal and I would hold that the plaintiffs are indeed estopped from questioning the decree in O.S.No. 139 of 1970 and the partition deed under Ex.B-1. The third substantial question of law is answered accordingly. 38. The first and second questions of law relate to the proof of Ex.A-16 Will said to have been executed by Ayyasamy Gounder. PW-2 Poonusamy is one of the attesting witness. He had been examined. In their written statement, the defendants had only disputed the execution of the Will but they have not stated any suspicious circumstance to hold that the Will should be rejected even if it had been proved in manner known to law. The Will stands proved in manner known to law if it complies with the stipulations under Section 63(c) of the Indian Succession Act and is tested as provided under Section 68 of the Indian Evidence Act 1872. 39. In AIR 2022 SC 1585 equivalent to (2022) 3 MLJ 569 [ Swarnalatha and Ors. Vs. The Will stands proved in manner known to law if it complies with the stipulations under Section 63(c) of the Indian Succession Act and is tested as provided under Section 68 of the Indian Evidence Act 1872. 39. In AIR 2022 SC 1585 equivalent to (2022) 3 MLJ 569 [ Swarnalatha and Ors. Vs. Kalavathy and Ors.], the Hon'ble Supreme Court had held as follows:- “25. The law relating to suspicious circumstances surrounding the execution of a Will is already well settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. MANU/SC/0450/2020 : AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma MANU/SC/0115/1958 : AIR 1959 SC 443 . But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.” 40. In the instant case, no suspicious circumstances as aforementioned had been pleaded by the defendants. The First Appellate Court had, startingly, travelled beyond evidence and pleadings to reject the Will, Ex.A-16. It had been contended by the learned First Appellate Judge that the mother of the plaintiffs and her brothers had hatched a conspiracy and had seen to it that a Will was executed by Ayyasamy Gounder. These are facts which have neither been pleaded nor been deposed in evidence. Even if the witness travels beyond the zone of opinions to be expressed by him, unless such evidence had been pleaded, the same cannot be accepted while analysing the evidence. I would therefore hold that by examination of PW-2 and in the absence of any specific suspicious circumstance, the Will does indeed stand proved. Even if the witness travels beyond the zone of opinions to be expressed by him, unless such evidence had been pleaded, the same cannot be accepted while analysing the evidence. I would therefore hold that by examination of PW-2 and in the absence of any specific suspicious circumstance, the Will does indeed stand proved. I hold that the First Appellate Court had made a specious plea to reject the Will and the discussion on the same had swung backwards and forwards by accepting the proof of the Will and finally ending in rejecting the Will. The learned First Appellate Judge had used phrases like 'I am inclined to think' which does not give any definite finding on the validity or otherwise of the Will. 41. I hold that the Will had been proved in manner known to law. PW-2 had withstood cross examination. The defendants have not pleaded any suspicious circumstance which would dilute the evidence of PW-2. 42. In view of those circumstances, I answer first and second substantial question of law by holding that the Will in Ex.A-16 had been proved in manner known to law. 43. In view of the above discussion, the ratio or share among the parties will now have to be worked out. Both the Courts below have concurrently held that the plaintiffs can seek partition of only 'B' Schedule properties as described in the plaint. Ayyasamy Gounder and his two sons Rangasamy and Rajagopal, the third and fourth defendants were each entitled to 1/3rd share in the B schedule properties. The third defendant is the father of the plaintiffs. He is still alive. Ayyasamy Gounder had executed a Will under Ex.A-16 and he can execute such a Will, but his bequeath has to be restricted only to his 1/3rd share. Since Rangasamy, the third defendant is still alive, the plaintiffs cannot seek any partition of his particular 1/3rd share. The fourth defendant Rajagopal is entitled to another 1/3rd share and on his death, his legal heirs would inherit the same. The two plaintiffs therefore, owing to the bequeath under the Will, would get the 1/3rd share of Ayyasamy Gounder in entirety. 44. The fourth defendant Rajagopal is entitled to another 1/3rd share and on his death, his legal heirs would inherit the same. The two plaintiffs therefore, owing to the bequeath under the Will, would get the 1/3rd share of Ayyasamy Gounder in entirety. 44. A preliminary decree is therefore passed that the two plaintiffs are together entitled to 1/3rd share undivided in the 'B' schedule properties and their father A.Rangasamy is entitled to another 1/3rd undivided share in the 'B' schedule properties and the legal representatives of the fourth defendant A.Rajagopal are entitled to the balance 1/3rd undivided share in the 'B' schedule properties. 45. The Second Appeal is partly allowed to the above extent. No costs. Consequently, connected Miscellaneous Petition is closed. The decree and Judgment of the trial Court and the First Appellate Court are modified accordingly. 46. It is specifically held that the appellants are not entitled to any share in the 'A' schedule properties. It is also specifically held that the appellants are not entitled to seek accounts from anyone of the parties to the suit.