IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19/1/2011 C O R A M THE HONOURABLE Mr.JUSTICE C. NAGAPPAN and THE HONOURABLE MR. JUSTICE M.M. SUNDRESH Appeal Suit No. 192 of 2007 and CMP Nos.1, 2 & 3 of 2010 Jagadambal ... Appellant (Plaintiff) Vs 1. Sankari 2. Sambasivam 3. Devaraj 4. Kalitheertham 5. Thenukambal 6. Santhi 7. Sargunam 8. Girija 9. Karpagam 10.Sanjeevi ... Respondents (Respondent) Appeal against the judgment and decree dated 28.11.2006 made in O.S.No. 533 of 2004 on the file of the Additional District Court - FTC 1, Chengalpattu. For Appellant ... Mr. R.Subramanian, Sr.Counsel for Mr. G.Sankar For R1 to R3 & R6 ... Mr. T.V.Ramanujun, Sr.Counsel for M/s. C. Jagadesh N.C. Ahok Kumar For RR 4,5,7 to 10... Mr. V.Srikanth J U D G E M E N T (Judgement of the Court was delivered by C.NAGAPPAN, J.) The unsuccessful plaintiff has preferred this appeal challenging the judgment and decree dated 28.11.2006 made in O.S.No. 533 of 2004 on the file of the Additional District Court – Fast Track Court 1, Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant/plaintiff filed the suit seeking a Decree for Partition of the suit properties into three equal shares and allotment of one such share to her and for a Decree directing defendants 1 to 3 to pay past mesne profits to her from all the assets of the joint family properties and to render an account to the plaintiff of the income, profits and realization from the suit properties from the year 1999 till date of delivery of possession and for costs of the suit. The case of the plaintiff, in brief, is that her father Sadasivam and mother Tirupuraammal had three daughters, namely, the plaintiff Jagadambal, Jamuna and Suseela and a son by name Thiruvengadam and Sadasivam pre-deceased her wife Tirupuraammal and Tirupuraammal died intestate in the year 1988 leaving behind the plaintiff and three other heirs. According to the plaintiff, Tirupuraammal owned landed property at No.143, Madambakkam village, Sudarsan Nagar, East Tambaram, Kancheepuram, measuring an extent of 4.12 acres and it is the joint family property of the plaintiff Jagadambal, Thiruvengadam, Jamuna and Suseela, each having 1/4 undivided share, and Thiruvengadam being the male member was entrusted with the maintenance of the said property and he died on 28.2.1999 and Jamuna died on 23.1.2003 issueless and Suseela died on 8.3.2003 leaving behind defendants 4 to 9 as her heirs. It is further stated by the plaintiff that since Jamuna died issueless, the plaintiff's 1/4 undivided share was converted to 1/3 undivided share in the joint family properties and the plaintiff is also entitled to profit and shares on the income derived from the joint family properties, namely, Schedule 'B' and 'C'. According to the plaintiff, defendants 1 to 3 are collecting Rs.12,000/- as monthly rent from the shops and Rs.30,000/- per month from the rice mill and they are not rendering any account nor giving any share to the plaintiff. It is further averred that the plaintiff demanded partition of the suit properties through lawyer's notice dated 8.10.2002 and the defendants though received the same, did not send any reply nor comply with the demand and hence the suit. 3. In the written statement, filed by defendants 1, 2 & 6 and adopted by the third defendant, it is stated that 4.12 acres in Madambakkam village was the absolute, exclusive and self-acquired property of Tirupuraammal and she had put up a rice mill in the said property and was in possession and enjoyment of the same till her death on 1.11.1988. It is further stated in the written statement that Sadasiva Mudaliar, husband of Tirupuraammal, had executed a registered Will dated 15.2.1935 in favour of his only son Thiruvengadam, father of defendants 1 to 3. It is their further case that Tirupuraammal in a sound disposing state of mind had executed a registered Will on 26.5.1983 bequeathing all her properties in favour of the grand-children, namely, defendants 2 and 3, reciting their father Thiruvengadam as guardian. It is further https://hcservices.ecourts.gov.in/hcservices/ averred that the Will was duly executed by Tirupuraammal in the presence of attestors Jamuna, Jagadambal (plaintiff), Suseela, M.Arumugham, Vadivelu Chettiar, M.N. Jayarama Mudaliar and the attestors and the scribe put their signatures in the Will and the Will was presented for registration on 28.5.1983 by Tirupuraammal herself and was duly registered. It is further stated that the attestors Jamuna, Suseela, Arumugham and Jayarama Mudaliar are dead now and after the death of Tirupuraammal, Thiruvengadam, father of defendants 2 and 3, had been in possession and from the date of attaining majority, defendants 2 and 3 are in exclusive possession of the properties of Tirupuraammal and the patta has been granted in their names and they have paid the kist and the property tax in their names. It is further stated that the plaintiff having attested the registered Will has come forward with a false case that Tirupuraammal died intestate and she is not entitled to any share in the properties of Tirupuraammal. It is further stated by them that out of 12 shops, four are vacant and two are occupied by them for carrying on their own business and the rice mill business has been closed and they are carrying on flour mill business and getting a gross income of Rs.100/- per day and the plaintiff is not entitled to claim any income from the said properties. According to them, after receipt of legal notice dated 8.10.2002 from the plaintiff, they met her and reminded her of the Will of Tirupuraammal and the plaintiff expressed regret and hence, no reply was sent to the notice sent by the plaintiff. It is also stated that the plaintiff has studied upto 10th standard and is well versed with Tamil and English and she is also carrying on pawnbroker business. 4. The plaintiff filed rejoinder stating that Tirupuraammal was married to Sadasiva Mudaliar at a tender age and that too as a second wife and presumably she did not bring any thing as a Sridhana property to her husband's home and the averment that 4.12 acres is her self-acquired property is false. It is further stated by the plaintiff that even if Sadasiva Mudaliar had purchased the said properties in the name of his wife Tirupuraammal as a matter of family custom, she had no individual right over the same and she could not create any document, much less the Will said to be registered on 26.5.1983, and the said Will was created for the purpose of grabbing the joint family properties for themselves and to defeat the right of the plaintiff and her sisters as a whole. It is also stated by the plaintiff that the Will said to be executed by Sadasiva Mudaliar during 1935 is also not acceptable since it was an ancestral property in joint possession. It is further stated by the plaintiff that the alleged attesting signatures of the plaintiff in the Will is an utter falsehood and totally denied and there had been a forgery. It is also stated by the plaintiff that no reply was sent to the legal notice sent by her seeking for partition and the Will is mentioned only in the written statement. According to the plaintiff, the Will is said to have been executed by https://hcservices.ecourts.gov.in/hcservices/ Tirupuraammal, who had no individual right over the properties standing in her name since they were purchased by her husband and therefore the question of estoppel does not arise and the plaintiff is entitled to her legitimate share. 5. Defendants 1, 2 and 6 filed additional written statement, which was adopted by the third defendant, in which it is stated that the suit properties were not purchased by Sadasiva Mudaliar in the name of his wife Tirupuraammal and the plaintiff through her counsel served a memo demanding copies of the Will of Tirupuraammal and the Will of Sadasiva Mudaliar and both the copies were given to the counsel for the plaintiff and the Will executed by Tirupuraammal is true and valid and the plaintiff is not entitled to any share much less 1/3 share claimed by her in the suit. 6. The trial court framed seven issues and an additional issue and the plaintiff examined herself as P.W.1 and marked Ex.A1 on her side and the second defendant besides examining himself as D.W.1, also examined D.W.2 Vadivel Chettiar and marked Exs.B1 to B14 on their side. The trial court, on a consideration of oral and documentary evidence, held that the suit properties are self- acquired properties of Tirupuraammal and the Will executed by her is true and valid and the plaintiff is not entitled to any share in the suit properties and negatived the claim for partition by dismissing the suit directing the parties to bear their own costs. Challenging the same, the plaintiff has preferred the present appeal. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit. 7. During the pendency of the appeal, the appellant filed CMP No.2 of 2010 seeking to amend the plaint by including 6 acres and 17 cents of nanja lands as Schedule ‘D’ to the plaint; CMP No.3 of 2010 to receive the certified copies of the sale deeds as additional evidence in the case; and M.P.No.1 of 2010 to implead third parties as D11 to D15 in the suit. In the common affidavit filed in support of the petitions, the appellant averred that by inadvertence, she has not included the properties described in Ex.B.10 Will dated 15.2.1935 as suit properties and the said properties totalling 6 acres 17 cents may be included as Schedule ‘D’ by amending the plaint. It is also averred that after the death of father Sadasiva Mudaliar and mother Tirupuraammal, D1 to D3 and their father Thiruvengadam sold some of ‘B’ Schedule property in the Will dated 15.2.1935 to third parties and to avoid multiplicity of proceedings, those alienees may be impleaded as D11 to D15 and the certified copies of those six sale deeds may be received as additional evidence in the case. https://hcservices.ecourts.gov.in/hcservices/ 8. Respondents 1, 2, 3 and 6 filed an elaborate common counter affidavit in all the petitions and they have stated that Sadasiva Mudaliar executed the Will dated 15.2.1935 bequeathing ‘B’ schedule property to his son Thiruvengadam and the said Will is an admitted document and has been marked as Ex.B10 in the case and the plaintiff has filed the suit for partition only in respect of the properties owned by mother Tirupuraammal and now, under the guise of proposed amendment, the appellant is pleading a new case and if it is allowed, it will change the nature and character of the case and it will cause prejudice to the respondents. It is also further stated in the counter that ‘B’ schedule property under Ex.B10 Will was the self-acquired property of Sadasiva Mudaliar bequeathed to Thiruvengadam absolutely and he has sold the same by registered sale deeds and the plaintiff has filed the present suit for partition only in respect of the properties owned by Tirupurammal and those alienees are neither necessary nor proper parties to this case and no ground is made out to receive those Sale deeds as additional evidence in the present appeal and all the petitions would show mala fide on the part of the appellant and they deserve to be dismissed. 9. The points for determination are as follows: (1) Whether the properties bequeathed under Ex.B8 Will dated 26.5.1983 are the self-acquired properties of Tirupurammal or the joint family properties. (2) Whether Ex.B8 Will executed by Tirupurammal is true and valid. (3) Whether the appellant is entitled to the reliefs of amendment of plaint; reception of additional evidence and impleading third parties in the case. Point No.1: 10. The plaintiff is the daughter of Tirupurammal and Sadasiva Mudaliar and besides the plaintiff, they had two more daughters by name, Jamuna and Suseela, and one son by name Thiruvengadam and Thiruvengadam died on 28.2.1999 and the first defendant is his daughter and Defendants 2 and 3 are his sons. Jamuna died issueless on 23.1.2003 and Suseela died on 8.3.2003 leaving behind Defendants 4 to 9 her children and the tenth defendant her husband as legal heirs. Sadasiva Mudaliar executed Ex.B10 Will dated 15.2.1935 in which as testator he has stated that he came to Madras alone at the age of 14 years with nothing in his hands and joined a shop and learnt to prepare biscuits, cakes and sweets and after some time he himself prepared and sold the sweet https://hcservices.ecourts.gov.in/hcservices/ items and he married twice and whatever properties acquired by him are his self acquisitions and he bequeathed the properties on his son Thiruvengadam. Sadasiva Mudaliar started his life from scratch and by his self-earnings he acquired properties. From the clear recitals of Ex.B.10 Will it is seen that Sadasiva Mudaliar did not have any ancestral properties or ancestral nucleus and there was never any joint family or joint family properties and he was a self made person and his self-acquisitions had been dealt with by him under Ex.B10 Will and the plaintiff has admitted the same in her oral testimony. 11. The suit is one for partition filed by the plaintiff stating that her mother Tirupuraammal owned landed properties at No.143, Madambakkam Village measuring an extent of 4.12 acres and it is the joint family properties of the plaintiff along with her two sisters and one brother and each is having 1/4 undivided share and after the death of sister Jamuna issueless, each is having 1/3 undivided share and division is sought, for allotment of her 1/3 share. The case of defendants 1, 2, 3 and 6 is that the said extent of 4.12 acres was the self acquired properties of Tirupuraammal and she had put up rice mill and 12 shops and was in possession and enjoyment of the same and she had executed Ex.B8 registered Will on 26.5.1983 bequeathing her properties in favour of her grandchildren Defendants 2 and 3, reciting their father Thiruvengadam as guardian and on the death of the testatrix on 1.11.1988 the legatees are in possession and enjoyment of the same. 12. Ex.A1 Legal notice dated 8.10.2002 was sent by the plaintiff to Defendants 1 to 3 as well as her sisters Jamuna and Suseela in which the plaintiff has stated that the suit properties were owned and possessed by her mother Tirupuraammal. There was no claim of any joint family or joint family property in the said legal notice. There is no pleading to the effect that Sadasiva Mudaliar created a joint family. There was no joint family much less joint family properties between Sadasiva Mudaliar and his son Thiruvengadam since there was no ancestral property or ancestral nucleus. 13. Tirupuraammal purchased the suit properties under three registered sale deeds, namely, Exs.B4, B5 and B7, which are of the years 1933, 1937 and 1950. The plaintiff herself in her testimony as P.W.1 has admitted that Tirupuraammal purchased the suit properties by the above sale deeds and patta stood in her name and she had constructed the rice mill and 12 shops in the suit properties and was in enjoyment of the same by paying taxes. Exs.B1 and B2 are the sale agreements executed by the plaintiff with third parties pertaining to the suit properties and in the recitals therein the plaintiff https://hcservices.ecourts.gov.in/hcservices/ is claiming inheritance as successor and legal heir of Tirupuraammal. There is no whisper of joint family or joint family property in the recitals. A shop under the name and style of P.RAMAKRISHNAN Pawn Broker is being run by the plaintiff and her husband and the plaintiff has signed Ex.B3 Pawn ticket in English. Joint family between the brother and the sister is unknown to law and only father and son constitute joint family. 14. In the plaint it is claimed that the suit properties are the joint family properties and in the rejoinder the plaintiff states that Sadasiva Mudaliar purchased the suit properties in the name of his wife Tirupuraammal and a theory of Benami suddenly emerges. The versions of the plaintiff are mutually contradictory and they cannot co-exist. Ex.B4 is the sale deed dated 19.7.1933 in which Tirupuraammal purchased an extent of 1 acre 2 cents in S.No.674/3 and 11 cents in S.No.705/1 for a total consideration of Rs.150/- and it is recited therein that the vendors had received a sale consideration of Rs.150/- from Tirupuraammal. This sale deed is prior to Ex.B10 Will dated 15.2.1935. Even during the life time of Sadasiva Mudaliar, Tirupuraammal had purchased the above property and Sadasiva Mudaliar had not dealt with the same in his Will dated 15.2.1935 marked as Ex.B10. There is no pleading that the property purchased under Ex.B4 is a Benami transaction. 15. Ex.B5 is the Sale deed dated 26.7.1937 and the sale consideration is mentioned as Rs.170/- for the purchase made by Tirupuraammal and even if Sadasiva Mudaliar had provided the said sum of Rs.170/-, the only person who could question the title was Sadasiva Mudaliar and he never questioned the title of Tirupuraammal during his life time and Tirupuraammal died in the year 1988 and the suit was filed after a period of 14 years, namely, on 4.8.2003. It is also relevant to point out that Tirupuraammal had asserted her title to the said properties by putting up rice mill and construction of shops and was in enjoyment of the same by paying property tax in her name and had dealt with the properties in her Ex.B8 Will dated 26.5.1983. It is pointed out on behalf of the appellant that in Exs.B4 and B5 the avocation of Tirupuraammal is stated as 'PURUSHA MOOLA JEEVANAM'. The husband Sadasiva Mudaliar was alive during the purchase of lands under Exs.B5 and B6 and he did not question the title of Tirupuraammal under Exs.B4 and B5 sale deeds at any point of time. No inference can be drawn by mere use of word 'PURUSHA MOOLA JEEVANAM' in the above sale deeds. In this context Ex.B6 Sale deed dated 26.5.1938 becomes relevant and it was executed by Sadasiva Mudaliar in favour of his wife Tirupuraammal describing the avocation of Tirupuraammal as 'PAYIR JEEVANAM'. The sale consideration in Ex.B6 Sale deed is Rs.100/- and the sale is by the husband in favour of the wife. In the recitals the vendor Sadasiva Mudaliar says that the parents of https://hcservices.ecourts.gov.in/hcservices/ Tirupuraammal gave a sum of Rs.100/- as 'Sridhana' for the purpose of Brass vessels and the said sum of Rs.100/- was utilized by Sadasiva Mudaliar for his personal expenses and in consideration of the same, he had executed the sale deed in favour of his wife. The recital in Ex.B6 Sale deed will clearly show that Tirupuraammal had 'Sridhana' funds even at the time of her marriage. Hence, the vendor, namely, her husband, had mentioned her avocation as 'PAYIR JEEVANAM' in Ex.B6 sale deed. 16. Ex.B7 is another sale deed dated 12.12.1950 and Tirupuraammal had purchased 2 acres 08 cents in S.No.674/2 for a sale consideration of Rs.700/-. The avocation of the purchaser, namely, Tirupuraammal, is mentioned as 'Vivasaya Jeevanam' and as per the recital, the vendor had received a sum of Rs.150/- as advance from Tirupuraammal and she had discharged the mortgage over the property by paying Rs.240.5.2 and paid the balance consideration of Rs.309.10.10 to the vendor at the time of registration. In Exs.B6 and B7 Sale deeds the avocation of Tirupuraammal is mentioned as 'Vivasaya Jeevanam' and as already seen, she had Sridhana funds. Sadasiva Mudaliar never made a claim of Benami in the properties purchased under Exs.B4, B5 and B7 Sale deeds. Further, Sadasiva Mudaliar had given life estate in ‘B’ schedule property in his Ex.B10 Will to his wife Tirupuraammal and ultimately, the vested remainder was given to the male children born through Thiruvengadam. In the plaint, the validity of Sale deeds in Exs.B4, B5 and B7 has not been questioned and no question or any suggestion has been put to D.W.1 that Tirupuraammal had no means. During the life time of Tirupuraammal, his daughters including the plaintiff never questioned the title of Tirupuraammal under the above Sale deeds. There is no pleading to the effect that Sadasiva Mudaliar purchased the properties in the name of Tirupuraammal and there is no evidence to support such an argument. As already seen, Tirupuraammal asserted title and interest over the suit properties by putting up rice mill and constructing shops and was in enjoyment of the properties as absolute owner and executed Ex.B8 Will dated 26.5.1983 bequeathing the same in favour of her grandsons. From the above it is clear that the suit properties are the self-acquired properties of Tirupuraammal and it is determined accordingly. Point No.2: 17. The challenge made by the plaintiff questioning the testamentary capacity of Tirupuraammal to execute Ex.A8 Will falls to ground on account of determination made earlier that the suit properties are the self-acquired properties of Tirupuraammal. The submission of the learned senior counsel appearing for the appellant is that the due execution of Ex.A8 Will is not proved and there is doubt regarding its genuineness. In support of his submission the following decisions of the supreme Court and decisions of this Court were relied on: https://hcservices.ecourts.gov.in/hcservices/ (1) SURENDRA PAL AND OTHERS v.. DR. (MRS.) SARASWATI ARORA AND ANOTHER [(1974) 2 SCC 600]; (2) JOSEPH ANTONY LAZARUS (DEAD) BY L.Rs. v.. A.J. FRANCIS [2006 (2) CTC 756]; (3) SAVITHRI AND OTHERS v.. KARTHYAYANI AMMA AND OTHERS [(2008) 1 MLJ 1337 (SC)]; (4) G. SEKAR v.. GEETHA AND SEVEN OTHERS [(2007) 3 MLJ 1029]; and (5) MS. JOSEPHINE JEROME AND OTHERS v.. S. SANTIAGO AND ANOTHER [(2007) 5 MLJ 706] 18. Per contra, the learned senior counsel appearing for R1, R2, R3 and R6 submits that satisfactory evidence has been adduced in the form of testimony of attesting witness to the effect that the testatrix Tirupuraammal signed Ex.B8 Will at the relevant time in a sound and disposing state of mind in the presence of witnesses and the attestation is also proved by the registration endorsement found on the Will and Ex.B8 Will is duly proved in accordance with law. In support of his submission, the following decision of the Supreme court and a Division Bench of this Court were relied on: (1) PENTAKOTA SATYANARAYANA AND OTHERS v.. PENTAKOTA SEETHARATNAM AND OTHERS [AIR 2005 SC 4362] and (2) CORRA VEDACHALAM CHETTY AND ANOTHER v.. G. JANAKIRAMAN [2001 (3) CTC 283] 19. Ex.B8 is the registered Will dated 26.5.1983. The testatrix had bequeathed the suit properties to her grandsons and the Will is in Tamil. The first three attesting witnesses to the said Will are the daughters of testatrix Tirupuraammal and they are Jamuna, plaintiff Jagadambal and Suseela; the fourth attesting witness is M.Arumugham; the fifth attesting witness is Vadivedlu chettiar, who has been examined as D.W.2, and the sixth attesting witness is M.N.Jayaram Mudaliar. Except the plaintiff and the fifth attesting witness Vadivelu Chettiar, the other four witnesses are dead. Vadivelu Chettiar has been examined as D.W.2. The case of the plaintiff is that she has not attested the Will. A perusal of the rejoinder filed by the plaintiff would show that she is indirectly admitting her signature, but trying to wriggle out by saying that by mistake she has signed without knowing her legal https://hcservices.ecourts.gov.in/hcservices/ right. At one place, she says that she does not admit any lending of signature to the Will, but, nowhere she has specifically denied her signature in clear terms. It is only stated in the rejoinder that Tirupuraammal had no authority to execute the Will and the plaintiff being misled lent her signature and the pleading is evasive. The signature of the plaintiff in the Will is found in English. In her testimony the plaintiff has stated that she used to sign both in English and Tamil. In fact, the signatures of the plaintiff in Exs.B1 to B3 are found in English. The