BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 29.09.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.195 of 2001 1.Vadivel 2.Sumathi 3.Sugantha .. Appellants / Defendants Vs. Thaiyammal (died) .. 1st plaintiff Saroja .. Respondent / 2nd plaintiff Prayer :- This appeal has been preferred under Section 96 of CPC against the decree and judgment dated 07.12.1998 in O.S.No.105 of 1993 on the file of the Additional Subordinate Judge, Erode. For Appellants : Mrs.P.T.Asha, Advocate For Respondents : Mr.P.B.Sampathkumar, Advocate JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.105 of 1993 on the file of the Additional Subordinate Judge, Erode. 2.The averments in the plaint sans irrelevant particulars are as follows:- One Muthusami Gounder, S/o.Karuppanna Gounder of Unjalur Village, Kasba in Erode Taluk, had a son by name Muthusami Gounder and two daughters. The son of K.Muthusami Gounder is called by name M.Muthusami Gounder. Item Nos.1 to 4 of the plaint schedule properties belonged to the joint family of the two Muthusami Gounders. On 30.08.1973, the two Muthusami Gounders, two daughters of K.Muthusami Gounder, the 2nd plaintiff, a son of one of the two daughters, and the wife of K.Muthusami Gounder entered into a family settlement partitioning the properties of Muthusami Gounders. Under the family settlement dated 30.08.1973, K.Muthusami Gounder, though he was entitled to an absolute estate in a half share of the family properties, contented himself with a life-estate in items 1 to 3 of the suit properties, gave the remainder to his son M.Muthusami https://hcservices.ecourts.gov.in/hcservices/ Gounder absolutely and exclusively. Under the family settlement M.Muthusami Gounder was allotted Item No.4 of the suit properties. On the death of K.Muthusami Gounder in the year 1987, his son M.Muthusami Gounder became entitled to items 1 to 3 of the suit properties absolutely and exclusively as his separate properties under the terms of the family settlement, termed partition, dated 30.08.1973 and item No.4 of the suit properties was ancestral in the hands of M.Muthusami Gounder. Item No.5 of the suit properties was purchased in the name of the 1st defendant from the income derived from item Nos.1 to 4 of the suit properties. Hence, item No.5 is also part of the joint-family properties. During the pendency of this suit the 1st plaintiff died. The 2nd plaintiff is the only heir and legal representative of the deceased. The 1st plaintiff was married to M.Muthusami Gounder as his first wife. The 2nd plaintiff is the only child born of the marriage. M.Muthusami Gounder purported to have married the 3rd defendant as his second wife during the subsistence of the first marriage. All the parties are Hindus. Hence, the purported second marriage is void. Defendants 1 and 2 are the son and daughter respectively born of the void marriage. The 2nd plaintiff is entitled to half share in the suit properties. The defendants 1 and 2 are together entitled to remaining ½ share in the suit properties. After the death of the said Muthusami Gounder, plaintiffs demanded partition and separate possession of their share, but the defendants are not amenable for the partition. Hence, the suit for partition and also for mesne profits. 2.The 1st defendant has filed a written statement would contend that the interpretation given by the plaintiff for the partition deed dated 30.8.1973 between K.Muthusami and others is not correct. What was allotted to this defendant's father M.Muthusami Gounder in the said partition is remainder in Schedule-A properties and 'B' schedule properties and hence the entire 'A' and 'B' schedule properties allotted to said M.Muthusami Gounder are the ancestral properties of the said joint family consisting of this defendant and his father M.Muthusamy Gounder. Hence the entire suit items 1 to 3 of the suit properties also are the ancestral properties of this defendant and his father M.Muthusami Gounder after the death of K.Muthusami Gounder. On 2.1.1986 while in sound and disposing state of mind this defendant's father M.Muthusami Gounder has executed a Will bequeathing his entire properties in favour of this defendant absolutely with a condition that this defendant should maintain his mother Sugantha till her life time, if she is alive on the date of his death and maintain this defendant's sister Sumathi till her marriage and celebrate her marriage satisfactorily giving her all seethanas, if her marriage does not take place during his lifetime. Hence, after the death of this defendant's father on 8.9.1991, the said Will has come into effect and hence his entire share in the suit properties devolved upon this defendant and this defendant is the absolute owner of the same. The allegations that on the death of K.Muthusami Gounder in the year 1987, his son M.Muthusami Goundar ie, https://hcservices.ecourts.gov.in/hcservices/ father of this defendant became entitled to items 1 to 3 of the suit properties absolutely and exclusively as his separate properties under the terms of the family settlement, termed partition, dated 30.8.1973 are not true and correct. The allegations that item No.5 of the suit properties was purchased in the name of the 1st defendant from the income derived from Item No.1 to 4 of the suit properties and hence, item No.5 is also a part of the joint family properties are not true and correct. Item No.5 of the suit property was purchased by this defendant out of his separate earnings on 14.09.1987 in which his father M.Muthusami Gounder has no manner of right or interest in the same. The allegations that the 3rd defendant's marriage with M.Muthusami Gounder is void and that the defendants 1 & 2 are the son and daughter respectively born of the void marriage are not true and correct. Since the deceased M.Muthusami Gounder, father of this defendant has executed a Will while in sound and disposing state of mind on 2.1.1986 bequeathing his properties in favour of this defendant and that the said Will has come into effect after his death, the plaintiffs do not get any share in the suit properties items 1 to 4. The shares alleged in the plaint are highly imaginary and invented for the purpose of this suit and to blackmail the defendants. There was no demand for partition made by the plaintiffs. There is no cause of action to file the suit. The plaintiffs cannot claim joint possession in respect of the suit properties. Hence, the suit is liable to be dismissed. 3.The second defendant in his written statement would contend that item No.1 to 4 of the suit properties are joint family property consisting of this defendant, 1st defendant and their father M.Muthusami Gounder in which this defendant is entitled to 1/3rd share as a co-parcener as per Tamil Nadu Act 1 of 1990. Further as per the Will dated 2.1.1986 executed by the father of this defendant, this defendant has got a maintenance right over her father's share till her marriage and further she has got a claim over the same towards her marriage expenses also. Further, this defendant's mother, the 3rd defendant herein also has got a maintenance right over the share of her father in suit items 1 to 4. In other respects this defendant adopts the written statement filed by the 1st defendant. 4.The 1st defendant in his additional written statement, which was adopted by D2 & D3, would contend as follows:- With some ulterior motive the 2nd defendant herein did not give the date of her marriage. For claiming benefit under the Hindu Succession Act (Tamil Nadu Amendment Act), 1989, which came into force on 25.3.1989, the 2nd plaintiff ought to have been married after the coming into force of the said Act that is after 25.3.1989. Section 29.A(iv) of the said Act itself makes it clear. But the 2nd plaintiff got married on 2.6.1976 and hence the 2nd plaintiff has no right to claim the benefit of the Hindu Succession Act (Tamil Nadu Amendment Act) 1989 and that the claim made by the 2nd plaintiff by https://hcservices.ecourts.gov.in/hcservices/ amending the plaint even without giving the date of her marriage is highly atrocious and is clear abuse of the process of the Court. Since the father of the 2nd plaintiff and this defendant did not die intestate and died leaving a Will dated 2.1.1986 bequeathing his properties in favour of this defendant, the 2nd plaintiff and her mother are not entitled to claim any share in the suit properties as heirs to the father M.Muthusami Gounder. Even assuming it for argument sake without admitting that the father M.Muthusami Gounder died intestate the 2nd plaintiff is not entitled to the shares claimed in the suit. The 2nd plaintiff is not entitled to get any relief in this suit. Hence, the same is liable to be dismissed. 5.The 1st defendant filed another additional written statement dated 24.11.1998, which was adopted by D2 & D3, contending that the 2nd plaintiff is not entitled to half share in the suit properties and the the 2nd plaintiff is not entitled to any share in the suit property and she is not entitled to get any relief in the suit. Hence, the suit is liable to be dismissed. 6.On the above pleadings the learned trial Judge has framed eight issues and one additional issue for trial. Before the learned trial Judge, the 2nd plaintiff has examined herself as P.W.1 and has not exhibited any document on her side. On the side of the defendants, D1 was examined as D.W.1, besides examining one Shanmugam as D.W.2. On the side of the defendants Ex.B.1 and Ex.B.2 were marked. After scanning the evidence both oral and documentary, the learned trial Judge after negativing the defence raised by the defendants in their written statements, holding that the 2nd plaintiff is entitled to a preliminary decree for partition of her half share in the suit property, has decreed the suit accordingly, relegating the question of mesne profits to a separate proceedings under Order 20 Rule 12 of CPC. Aggrieved by the findings of the learned trial Judge, the defendants have preferred this appeal. 7.The points for determination in this appeal are as follows:- 1)Whether the plaint item No.5 is a separate property of D1 or the joint family property of D1 and his father Muthusami Gounder? 2)Whether Ex.B.2-Will said to have been executed by M.Muthusami Gounder is valid and genuine, and if so whether the 1st defendant had derived any absolute right in respect of the plaint schedule properties under the same? 3)Whether the decree and judgment of the learned trial Judge in O.S.No.105 of 1993 on the file of the Additional Subordinate Judge, Erode, is liable to be set aside for the reasons stated in the memorandum of appeal? 8.Point No.1:- Even though the plaintiffs would state in the plaint that the sale deed in respect of Item No.5 of the plaint https://hcservices.ecourts.gov.in/hcservices/ schedule stands in the name of the first defendant, the said sale deed was obtained only from out of the income derived from item Nos.1 to 4 of the plaint schedule properties. Hence, would contend that item No.5 of the plaint schedule property is also a joint family property of 1st defendant and his father M.Muthusami Gounder. Even though D1 as D.W.1 would depose that the sale consideration for the sale deed taken in respect of plaint schedule item No.5 was not paid by him, but the same was paid by his aunt, there is absolutely no pleading in their written statement as well as proof let in before the trial Court, for the said claim. Not even the alleged sale deed in favour of the 1st defendant in respect of the plaint schedule property Item No.5 was produced and exhibited before the Trial Court. Under such circumstance, the claim that item No.5 of the plaint schedule property belongs to the 1st defendant absolutely holds no water in the absence of any evidence. Point No.1 is answered accordingly. 9.Point No.2:- The alleged Will in favour of the defendants was exhibited through D.W.1 and marked as Ex.B.2. Ex.B.2 being a Will is required under law to be proved by examining atleast one of the attestors to the said Will as per Section 68(c) of the Evidence Act. D.W.2 – Shanmugam is one of the attestors to the alleged Will – Ex.B.2. Ex.B.2 is not a registered Will. The learned trial Judge on the basis of the evidence of D.W.2 has come to a conclusion that Ex.B.2 was not proved beyond any reasonable doubt and it suffers from many discrepancies like (1) according to D.W.2, the testator had signed in the Will with the pen with which the scribe and other witnesses have signed. But a perusal of Ex.B.2-Will will go to show that the testator had not signed with the pen with which the witnesses and scribe have signed in Ex.B.2, because the ink in the signature of the witnesses and the scribe entirely differ from that of the ink contained in the signature of the testator in both the pages of the Will. (2) The space occupied for the recitals above the signature of the testator of the first page and the space occupied for the recitals at the 2nd page above the signature of the testator also shows that the recitals at page 2 has been so written so as to occupy within the space above the signature of the testator at page 2. (3)Further, there is no schedule of properties mentioned under Ex.B.2-Will, even though at the time of execution of Ex.B.2-Will the testator had the documents relating to plaint item No.1 to 5 with him. (4)Further, D.W.2 - the only attestor, who had deposed before the trial Court, would in categorical terms deposed that Ex.B.2-Will was written in stamp papers, but Ex.B.2 was written in ordinary white paper. Further, the death certificate of the testator was also not produced to show that the testator was not alive on the date of exhibiting Ex.B.2-Will. The independent witness even though the Scribe, according to D1, is now no more, there is no explanation forthcoming from D1 as to why he has not examined the other attestor, who is an independent person. Further there is no material placed before the trial Court to show that the other https://hcservices.ecourts.gov.in/hcservices/ attestor Chandrasekaran was suffering from jaundice and lying in stuper. It is in evidence that the other attesting witness viz. Chandrasekaran had refused to come to the Court. But no steps taken to compel his attendance before the trial Court. Under such circumstance, the findings of the learned trial Judge that Ex.B.2- Will was not proved in accordance with law does not warrant any interference from this Court. Point No.2 is answered accordingly. 10.Point No.3:- In view of my findings and observations in the earlier paragraphs, I hold on Point No.3 that there is no need to set aside the decree and Judgment of the trial Court in O.S.No.105 of 1993 on the file of the Additional Subordinate Judge, Erode, which do not suffer from any illegality or infirmity. 11.In fine, the appeal fails and the same is dismissed conforming the decree and judgment in O.S.No.105 of 1993 on the file of the Additional Subordinate Judge, Erode. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ssv To, The Additional Subordinate Judge, Erode. A.S.No.195 of 2001 sa [co] gkg/17.10 https://hcservices.ecourts.gov.in/hcservices/