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2022 DIGILAW 508 (MAD)

P. Radha @ Radhakrishnan v. Irudayadoss

2022-03-01

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree in A.S.No.5 of 2015 on the file of the Principal District Court, Madurai, dated, 13.04.2018, reversing the judgment and decree passed in O.S.No.88 of 2010 on the file of the II Additional Subordinate Court, Madurai, dated, 07.07.2014. Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree in A.S.No.32 of 2014 on the file of Principal District Court, Madurai, dated, 13.04.2018, reversing the judgment and decree passed in O.S.No.88 of 2010 on the file of the II Additional Subordinate Court, Madurai, dated, 07.07.214. Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree in A.S.No.9 of 2018 on the file of Principal District Court, Madurai, dated, 13.04.2018, reversing the judgment and decree passed in O.S.No.88 of 2010 on the file of the II Additional Subordinate Court, Madurai, dated, 07.07.214.) Common Judgment 1. The plaintiff is the appellant. 2. The plaintiff filed a suit for partition of his half share in the suit schedule properties and for permanent injunction, restraining the defendants from in any way altering the structure of the suit property or creating any encumbrance over the suit schedule property till the suit property is divided by metes and bounds. The trial Court decreed the suit. The 2nd defendant filed A.S.No.32 of 2014. The defendants 3 and 5 filed A.S.No.5 of 2015. The 4th defendant filed A.S.No.9 of 2018. All the first appeals were filed before Principal District Court, Madurai. The learned District Judge after re-appreciating the oral and documentary evidence, allowed all the three appeals thereby dismissing the suit in entirety. As against the same, S.A(MD)Nos.589 to 591 of 2020 have been filed by the plaintiff. 3. The plaintiff has contended that the suit schedule properties originally belonged to one Muthusamy Naidu. He had executed a registered settlement deed in favour of his 1st wife, Rengammal on 13.07.1973 under Exhibit A.1. The said Rengammal had died issueless. The 2nd wife, namely, Muthammal and her son Pitchai @ Narayanasamy inherited the suit schedule properties and they were in joint enjoyment. After the death of Muthammal and Pitchai @ Narayanasamy, the plaintiff and his son are in joint enjoyment of the suit schedule properties. According to the plaintiff, he is the son of Pitchai @ Narayanasamy. 4. The 2nd wife, namely, Muthammal and her son Pitchai @ Narayanasamy inherited the suit schedule properties and they were in joint enjoyment. After the death of Muthammal and Pitchai @ Narayanasamy, the plaintiff and his son are in joint enjoyment of the suit schedule properties. According to the plaintiff, he is the son of Pitchai @ Narayanasamy. 4. The plaintiff has further contended that the said Pitchai @ Narayanasamy, his father, has executed a registered Will under Exhibit A.4 on 17.11.1994 and bequeathed the properties in favour of the 1st defendant, namely, the son of the plaintiff. Though the plaintiff admitted the execution of the Will, he questioned the right of the said Pitchai @ Narayanasamy to execute a Will in respect of the ancestral property. According to the plaintiff, after the death of father of his Pitchai @ Narayanasamy, the plaintiff and his son, namely, the 1st defendant are in joint possession and enjoyment of the suit schedule properties. Since the 1st defendant is not amenable for partition, the present suit has been filed. 5. The defendants filed a written statement contending that the suit schedule properties are not ancestral properties in the hands of Muthammal and Pitchai @ Narayanasamy. During her life time, the said Muthammal had executed a settlement deed under Exhibit A.2 on 13.02.1978 in favour of his son Pitchai @ Narayanasamy. Since Muthammal and Pitchai @ Narayanasamy were co-owners and one of the co-owners has executed a settlement deed in favour of the other co-owner, Pitchai @ Narayanasamy became the absolute owner of the suit schedule properties. Thereafter, the said Pitchai @ Narayanasamy had executed a Will in favour of his grandson, namely, the 1st defendant under Exhibit A.4 on 17.11.1994. In view of the said Will, the 1st defendant alone is the absolute owner of the suit schedule properties and the plaintiff is not entitled to any share in the suit schedule properties. 6. The trial Court after considering the oral and documentary evidence, came to the conclusion that both the parties have admitted Exhibit A.1-settlement deed executed by Muthusamy in favour of his 1st wife Rengammal. Muthusamy did not have any issues through Rengammal and the said Rengammal died intestate. On the death of Rengammal, the properties would devolve upon the 2nd wife of Muthusamy, namely, Muthammal and her son Pitchai @ Narayanasamy. Muthusamy did not have any issues through Rengammal and the said Rengammal died intestate. On the death of Rengammal, the properties would devolve upon the 2nd wife of Muthusamy, namely, Muthammal and her son Pitchai @ Narayanasamy. According to the trial Court, Muthammal had no right to execute Exhibit A.2-settlement deed in favour of his son Pitchai @ Narayanasamy and held that such a settlement deed is not legally valid. The trial Court further found that since Exhibit A. 2 -settlement deed in favour of Pitchai @ Narayanasamy is invalid, the Will executed by the said Pitchai @ Narayanasamy in favour of the 1st defendant under Exhibit A.4 is also invalid. 7. The trial Court further found that the properties in the hands of Muthammal and Pitchai @ Narayanasamy are ancestral properties inherited from Muthusamy and hence, by birth, the plaintiff being the son of Pitchai @ Narayanasamy will have a share in the suit schedule properties, since Exhibits A.2 and A.4 have been held to be invalid. After the death of Muthammal and Pitchai @ Narayanasamy, the plaintiff and the 1st defendant will be the co-owners of the suit schedule properties. Based upon the said findings, the trial Court decreed the suit, granting half share in favour of the plaintiff. 8. The 2nd defendant, defendants 3 and 5 and the 4th defendant filed independent first appeals before Principal District Court, Madurai, challenging the decree of the trial Court. The learned Appellate Judge independently analyzed the oral and documentary evidence and arrived that the following findings: (i) The present plaintiff, namely, Radha @ Radhakrishnan had filed O.S.No.1249 of 2004 before District Munsif Court, Madurai Town for the relief of partition as against his father Pitchai @ Narayanasamy. The said suit was dismissed for default on 21.04.2005. Hence, the present suit on the same cause of action is barred under Order 9 Rule 9 C.P.C. (ii) The suit properties originally belonged to Muthusamy Naidu, who settled the property in favour of his 1st wife Rengammal. Admittedly, Rengammal had died intestate, leaving without any issues. Hence, the property inherited by Muthammal and Pitchai @ Narayanasamy are not ancestral properties since they have not been derived from the paternal ancestors, but only from Rengammal. Admittedly, Rengammal had died intestate, leaving without any issues. Hence, the property inherited by Muthammal and Pitchai @ Narayanasamy are not ancestral properties since they have not been derived from the paternal ancestors, but only from Rengammal. (iii) Since the property in hands of Muthammal and Pitchai @ Narayanasamy are separate properties, Muthammal was entitled to execute Exhibit A.2- settlement deed in favour of her son Pitchai @ Narayanasamy. Hence, Pitchai @ Narayanasamy became the absolute owner of the suit schedule properties. (iv) The property in the hands of Pitchai @ Narayanasamy is his separate property, his right to execute Exhibit A.4-Will in favour of his grand-son, namely, D.1 cannot be questioned. (v) Though the Will has not been proved in accordance with Section 68 of the Indian Evidence Act, in the plaint, the plaintiff has admitted the execution of the Will by his father. But questioned the same only on the ground that the properties are ancestral in nature and he has no power to execute the same. Once a Will is admitted, a formal proof of the same under Section 68 of the Evidence Act is not necessary. (vi) Since the Will under Exhibit A.4, dated, 17.11.1994 executed by Pitchai @ Narayanasamy in favour of D.1 stands proved, the plaintiff is not entitled to any share in the suit schedule properties. 9. The learned District Judge reversed the judgment and decree of the trial Court on the above said findings and dismissed the suit filed by the plaintiff. All the three appeals filed by various defendants were allowed. As against the same, three second appeals have been filed by the plaintiff. 10. The learned counsel for the appellant contended that the suit schedule properties are the self-acquired properties of Muthusamy Naidu and he had executed a registered settlement deed in favour of his 1st wife Rengammal under Exhibit A.1, dated, 13.07.1973. The said Rengammal had died intestate without any issues. As per Section 15 (2)(b) of the Hindu Succession Act, the property would revert back to the legal heirs of Rengammal's husband, namely, the legal heirs of Muthusamy. Muthammal, who is the 2nd wife and her son Pitchai @ Narayanasamy would inherit the suit schedule properties. Since Muthammal and Pitchai @ Narayanasamy have inherited the properties from the male ancestor, the properties in their hand should only be considered to be an ancestral property. Muthammal, who is the 2nd wife and her son Pitchai @ Narayanasamy would inherit the suit schedule properties. Since Muthammal and Pitchai @ Narayanasamy have inherited the properties from the male ancestor, the properties in their hand should only be considered to be an ancestral property. Since the property is the ancestral property in the hands of Pitchai @ Narayanasamy, he cannot execute a Will in favour of his grand-son under Exhibit A.4 on 17.11.1994. Similarly, Muthammal will not be entitled to execute a settlement deed under Exhibit A.2 in favour of her son Pitchai @ Narayanasamy. Since both these documents are invalid, after the death of Muthammal and Pitchai @ Narayanasamy, the plaintiff and his son Srinivasan would inherit the properties as co-owners. Hence, the suit for partition by the plaintiff claiming half share is legally maintainable. 11. The learned counsel for the appellant further contended that the First Appellate Court has erroneously held that the present suit for partition is barred under Order 9 Rule 9 C.P.C. The learned counsel for the appellant further contended that the bar under Order 9 Rule 9 C.P.C is not applicable to the partition suit. As long as the parties remain joint and there is no division by metes and pounds, a second suit for partition is maintainable irrespective of the fact that the first suit was dismissed for default. 12. The learned counsel for the appellant further contended that Exhibit A.4-Will, dated, 17.11.1994 said to have been executed by Pitchai @ Narayanasamy in favour of the 1st defendant has not been proved in accordance with Section 68 of the Indian Evidence Act. No attestor has been examined in order to prove the Will and hence, the plaintiff's father Pitchai @ Narayanasamy should be treated to have died intestate. In view of such a situation, again the plaintiff and the 1st defendant will become co-owners and the plaintiff will be entitled to half share in the suit schedule properties. 13. Per contra, the learned counsel for the respondents contended that the suit schedule properties settled in favour of Rengammal should be treated only as absolute properties of Rengammal. She died intestate leaving without any issues. Any property devolved upon a female from her husband would revert back to the legal heirs of her husband, if she had died without leaving any issues. She died intestate leaving without any issues. Any property devolved upon a female from her husband would revert back to the legal heirs of her husband, if she had died without leaving any issues. After reverting back to the legal heirs of Muthusamy, the properties have devolved upon Muthammal and Pitchai @ Narayanasamy. The property of a hindu women had devolved upon the legal heirs of her husband under Section 15 (2)(b) would only partake the character of absolute property and not the ancestral property. Since Muthammal and Pitchai @ Narayanasamy got half share each, Muthammal had every right to execute a settlement deed under Exhibit A.2 in favour of her son Narayanasamy with regard to her half share. Thus Pitchai @ Narayanasamy became the absolute owner of the suit schedule properties having the character of absolute property. 14. The learned counsel for the respondents further contended that since the suit schedule properties were absolute properties in the hands of Pitchai @ Narayanasamy, his capacity to execute Exhibit A.4-Will in favour of his grand-son for the whole of the property cannot be questioned. The plaintiff has no right what so ever during the life time of his father Pitchai @ Narayanasamy. Hence, the contention of the plaintiff that Pitchai @ Narayanasamy had no right to execute the Will in favour of the 1st defendant is not legally sustainable. 15. The learned counsel for the respondents further contended that the plaintiff had filed O.S.No.1249 of 2004(O.S.No.1342 of 1994) as against his father Pitchai @ Narayanasamy seeking partition of his share in the suit schedule properties. In the said suit, the plaintiff's father Pitchai @ Narayanasamy had filed a written statement, which is marked as Exhibit B.3 in the present suit. In the said written statement, the said Pitchai @ Narayanasamy has admitted about the execution of Exhibit A.4-Will. The testator himself has admitted the execution of Exhibit A.4-Will and hence, it is sufficient proof of the execution of the Will as contemplated under Section 70 of the Indian Evidence Act. 16. Since the property in hands of Pitchai @ Narayanasamy is the absolute property and the Will executed by him in favour of 1st defendant stands proved under Section 70 of the Indian Evidence Act, the 1st defendant becomes absolute owner of the suit schedule properties. The plaintiff does not have any share in suit schedule properties. 16. Since the property in hands of Pitchai @ Narayanasamy is the absolute property and the Will executed by him in favour of 1st defendant stands proved under Section 70 of the Indian Evidence Act, the 1st defendant becomes absolute owner of the suit schedule properties. The plaintiff does not have any share in suit schedule properties. Hence, the respondents prayed for dismissal of the second appeal. 17. I have carefully considered the submissions made on either side. 18. Admittedly, the suit schedule properties belonged to one Muthusamy Naidu, who had two wives, namely, Rengammal and Muthammal. Muthusamy Naidu has executed a registered settlement deed in favour of his 1st wife with regard to the suit schedule properties under Exhibit A.1, dated, 13.07.1973. The said Rengammal had died intestate without leaving any issues. The above said facts are admitted by both the parties. 19. The issue that arises for consideration now is, who would succeed to the property of Rengammal after her death and what would be the character of property in the hands of the successor. 20. As per Section 15 (2)(b) of the Hindu Succession Act, if a female Hindu had died intestate leaving without any issues, the property will devolve upon the legal heirs of her husband when the property is inherited from her husband. In the present case, the legal heirs of her husband, namely, Muthusami are Muthammal(2nd wife) and her son Pitchai @ Narayanasamy. When the property is inherited by a Hindu as a class I heir under Section 15 (2)(b) of the Hindu Succession Act, it will not carry the character of a coparcenary property. The successors will be the absolute owners of the property with absolute power of alienation. The Full Bench of our High Court in a judgment reported in AIR 1979 Madras Page 1, while considering the character of the property that devolved under Section 8 of the Hindu Succession Act has held that once a property is inherited under Section 8 of the Hindu Succession Act it can only be considered to be an absolute property and it will not partake the character of the coparcenary property. 21. 21. The Hon'ble Supreme Court in a judgment reported in 1986 (3) SCC page 567 after referring to the conflict of opinion between various High Courts, has upheld that the view of Madras High Court in the judgment reported in AIR 1979 Madras page 1. 22. The learned single Judge of our High Court in a judgment reported in 2019 5L.W page 289 as held that the property that is inherited by a hindu on the death of his father after 1956 as a class I heir under Section 8, will not partake the character of coparcenary property qua his children. He will be the absolute owner of the property and he has absolute power of alienation over the property. What is applicable to a male Hindu is equally applicable to a female Hindu, who dies intestate and whose property devolves under Section 15 (2)(b) of the Hindu Succession Act. The property that is inherited under Section 15 (2)(b) of the Hindu Succession Act on the class I heirs of the deceased husband, will not partake the character of coparcenary property. But will remain as the absolute property of the class I heirs. Hence, in the present case, Muthammal and her son Pitchai @ Narayanasamy are the absolute owners of a suit schedule property. Hence, the settlement deed executed by Muthammal in respect of her half share under Exhibit A.2 in favour of her son is legally valid. 23. The entire suit schedule properties now in the hands of Pitchai @ Narayanasamy are his absolute properties with full power of alienation. The said Pitchai @ Narayanasamy has executed a registered Will in favour of his grand-son, namely, D.1 under Exhibit A.4 on 17.11.1994. The execution of the said Will has been admitted by the plaintiff in para 4 of the plaint. The plaintiff has just questioned the power of his father to execute a Will in respect of an ancestral property. 24. The defendants have not examined any attestor of Exhibit A.4-Will in order to comply with the provisions of Section 68 of the Evidence Act. The defendants have contended that when the plaintiff himself has admitted the execution of the Will, the question of invoking Section 68 of the Evidence Act with regard to formal proof of the document is not necessary. The defendants have contended that when the plaintiff himself has admitted the execution of the Will, the question of invoking Section 68 of the Evidence Act with regard to formal proof of the document is not necessary. However, I am not in agreement with the said contention in view of the judgments of the Hon'ble Supreme Court and our High Court. 25. The Hon'ble Supreme Court in a judgment reported in 2017 (1) SCC page 257 in para 13 as held as follows: “13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.” 26. The learned counsel for the respondents further contended that the plaintiff in the present suit had filed a suit for partition in O.S.No.1249 of 2004 as against his father. In the said suit, his father Pitchai @ Narayanasamy(Testator) had filed a written statement admitting the execution of Exhibit A.4-Will. When the execution of the document is admitted by the executor himself, it is sufficient proof of its execution as against him, though it is a document required by law to be attested as per Section 70 of the Indian Evidence Act. The learned counsel for the respondents contended that when the testator has admitted the execution of Exhibit A.4-Will in a written statement in a previous suit for partition, the Will can be said to have been proved under Section 70 of the Indian Evidence Act. 27. Whether Section 70 of the Indian Evidence Act can be invoked in order to supercede Section 68 of the Indian Evidence Act is the issue to be considered. 28. 27. Whether Section 70 of the Indian Evidence Act can be invoked in order to supercede Section 68 of the Indian Evidence Act is the issue to be considered. 28. The Hon'ble Division Bench of our High Court in a judgment reported in AIR 1938 Madras Page 43 in para 6 and 9 as held as follows: “6. ........In our opinion, the admission contemplated under Section 70 is an admission made for the purpose of or having reference to the suit made either in the pleadings or during the course of the trial....... 9. In the circumstances, we decline with respect to follow the said decisions, and we hold than an admission within Section 70 must be an admission made for the purpose of or having reference to the cause either in the pleadings or during the course of the trial......” 29. The judgment of the Hon'ble Division Bench was referred to and followed by a learned single Judge of this Court in 1991 (II) MLJ page 478 in para 4 as held as follows: “4. The next question will be whether the admission of execution by the executant before the Sub Registrar would amount to an admission within the meaning of Section 70 of the Indian Evidence Act. It has been held by a Division Bench of this Court in Davood Rowther v. Ramanathan MANU/TN/0331/1937:AIR1938 Mad 43, that for the purpose of Section 70 of the Indian Evidence Act, admission should have been made either in the pleading or during the course of the trial of the suit in which the question arose for consideration. The admission, even if it had been made before the Sub- Registrar at the time of registration will not fall within Section 70 as it is not an admission made in the course of the suit........” 30. In view of the Division Bench judgment and the judgment of learned single Judge, it is evident that Section 70 of the Indian Evidence Act is applicable to the Wills also. In case the testator has admitted the execution of the Will in the course of pleading or during the course of trial of a suit, the same can be treated as sufficient proof of the Will under Section 70 of the Indian Evidence Act. In case the testator has admitted the execution of the Will in the course of pleading or during the course of trial of a suit, the same can be treated as sufficient proof of the Will under Section 70 of the Indian Evidence Act. In the present case, the father of the plaintiff, namely, Pitchai @ Narayanasamy has admitted the execution of Exhibit A.4-Will in his written statement filed in O.S.No.1249 of 2004. Hence, the same can be treated as sufficient proof of Exhibit A.4-Will and the non-examination of the attestors as contemplated under Section 68 of the Indian Evidence Act will not be fatal to the propounder of the Will. 31. The defendants have established that the suit schedule properties are the absolute properties of Pitchai @ Narayanasamy and the same has been bequeathed in favour of the 1st defendant under Exhibit A.4. The plaintiff, who is the son of Pitchai @ Narayanasamy has been dis-inherited by his father Pitchai @ Narayanasamy by the execution of Exhibit A.4. Since the properties have been found to be absolute properties of Pitchai @ Narayanasamy and he had disposed of the properties during his life time under Exhibit A.4, the plaintiff will not be entitled to claim any share in the suit schedule properties. 32. In view of the above discussion, I do not find any question of law much less a substantial question of law that arises for consideration in the above second appeal. The Second Appeal is dismissed. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.