THE HIGH COURT OF JUDICATURE AT MADRAS DATE :07.06.2010 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.1269 of 1995 and C.M.P.No.1349 of 2008 Venkataraman .. Appellant/Defendant Vs. 1. Radhabai Ammal(Died) 2. Kothandarama Reddi 3. Hemalatha 4. M.Natarajan 5. N.Udaya Chandrika @ N.Jayar RR2 and 3 brought on record as LRs of the deceased sole respondent vide order dated 19.6.2008 RR4 and 5 impleaded as party respondents vide order dated 19.6.2008 .. Respondents/Plaintiff Prayer :- This appeal has been preferred under Section 96 of CPC against the decree and judgment in O.S.No.4 of 1991 dated 20.9.1995, on the file of the Learned Subordinate Judge at Tiruvannamalai, Tiruvannamalai Sambuvarayar District. For Appellant : Mr.R.Subramanian, Senior Counsel for Mrs.Hemalatha For RR2 and 3 : Mr.S.K.Krishnamurthy For RR 4 and 5 : Mr.P.Gopalan JUDGMENT This appeal has been directed against the judgment and decree in O.S.No.4 of 1991 dated 20.9.1995 on the file of the learned Subordinate Judge at Tiruvannamalai. 2.The averments in the plaint in brief which are necessary for deciding this appeal, run as follows:- https://hcservices.ecourts.gov.in/hcservices/ (a) Plaintiff and the defendant are sister and brother. They had another brother by name Madhavan, who died at the age of three. Their father died on 25.3.1949 and the mother died on 5.4.1979. The father of the plaintiff's married one Nagammal. Since the said Nagammal did not beget any children, the plaintiff's father married one Ranganayaki as his second wife and begot the plaintiff, the defendant and Madhavan. The plaintiff's father was the absolute owner of the properties in question. The house has been constructed by the plaintiff's father and the entire family have been living in the said house. There were no ancestral properties inherited by her father and the properties in question are the separate and self acquired properties of her father. (b) The plaintiff's father, while he was in a sound disposing state of mind had executed a Registered Will on 24.12.1948 in favour of the plaintiff, the defendant and the deceased Madhavan bequeathing his properties. In the said last Will, the plaintiff's father had appointed an executor, namely, Pal Reddiar son of Jalla Reddiar @ Ramasamy Reddy and authorised him to be in possession and enjoyment of his properties, after his death. The plaintiff's father lived for about three months after the execution of the said last Will and her brother Madhavan died after one month from the date of execution of the said Will. Prior to the execution of the Will, there had been some misunderstanding between her father and mother and they lived separately. But after the execution of the Will, they joined together. After the death of her father, the executor took over the management of the properties and he purchased the properties at Thenmudiyonoor village, out of the income derived from the properties in question. Thus, after the death of father, mother and brother Madhavan, the step mother Nagammal, also died issueless, and therefore, the plaintiff and the defendant became co-owners of the suit property and they are in joint and constructive possession of the suit properties. The plaintiff installed an electric motor and pump set by obtaining loan from the Block Development Officer. The plaintiff was given in marriage at Arcot and however, she has been very often visiting the suit village and is sharing the masool with the defendant. (c) Since the plaintiff needed money for her children's marriage, she approached the defendant to have an amicable division of the suit property. But the defendant was not willing to have an micable division but directed the plaintiff to have the division done through court of law. The plaintiff states that the plaintiff's mother while she was alive had pledged 32 sovereigns of gold jewels at Co-operative Urban Bank, Tiruvannamalai in her name and the same are also shown in the plaint schedule. She could not redeem the said jewels during her life time. The money was borrowed for the family necessity only. After the death of the mother, the defendant had redeemed the jewels out of the income from the joint properties and https://hcservices.ecourts.gov.in/hcservices/ he is in possession of the jewels. The plaintiff is entitled to half share over the jewels also. Therefore, the plaintiff issued a lawyer's notice to the defendant on 15.12.1990 calling upon him to divide the properties. Since the defendant did not send any reply, she filed the above suit praying to pass a judgment and decree, directing a division of the suit properties into two equal shares and allotting one such share to the plaintiff due regard being had to good and bad quality of the soil by appointing a Commissioner and putting the plaintiff in possession of the such share, directing the defendant to render account to the plaintiff regarding the income derived from the suit properties from the date of suit till the date of delivery of plaintiff's share; directing the defendant to pay the costs of suit to the plaintiff and such other reliefs. 3.The defendant in his written statement would contend as follows:- The suit is not maintainable in law or on facts. The defendant denied the allegations made in the plaint. The property in question are the joint family properties of the defendant, his father Rangasamy Reddiar and his brother Madhavan, who died, at the age of three. After the death of the father, the defendant became the absolute owner of the entire properties as a sole Co-parcenor. The plaintiff was married to one P.R.Kothandaraman and through him, she has one daughter. After the birth of her child, she came to father's house and cultivated illicit intimacy with one Natarajan, who was living, opposite to the defendant's house. In view of the said illicit intimacy, the defendant has severed all connections with the plaintiff. (b) The defendant's father Rangasamy Reddiar was not the absolute owner of the properties in question. The purchase of the suit properties was made from and out of the income of the joint family properties and joint family assets. The defendant denied the allegations that the house was constructed by Rangasamy Reddiar and there has been no ancestral properties inherited by Rangasamy Reddiar. The said Rangasamy Reddiar sold some of the ancestral lands to third party and purchased the suit properties. The defendant further denied the allegations that his father executed a last Will and appointed an executor, namely, Pal Reddiar and the original Will is with the defendant. The defendant's father had given the properties to the defendant and not to the plaintiff. No loan was obtained by the plaintiff to install pumpset. The defendant denied that he is sharing the masool with the plaintiff. The allegations that after the death of the the plaintiff's father, mother, Madhavan, and Nagammal, step mother, who died issueless, the plaintiff and the defendant became the joint owners of the suit properties as a heir to deceased Rangasamy Reddiar and thus, the plaintiff and the defendant are in a joint and constructive possession of the suit properties are all false. The defendant denied the statement of the plaintiff that 30 sovereign of https://hcservices.ecourts.gov.in/hcservices/ jewels pledged by Ranganayaki Ammal were redeemed by the defendant. The defendant is not in possession of any jewels and even otherwise, the plaintiff is not entitled to any share over the alleged jewels. The plaintiff never approached the defendant for amicable settlement. The defendant also sent a suitable reply for the lawyer's notice sent by the plaintiff. Hence, he prays for dismissal of the suit with costs. 4.On the above pleadings, the trial Court had framed the relevant issues and entered trial. During trial, the plaintiff was examined as P.W.1. and Exs.P1 to P9 were marked on the side of the plaintiffs. On the side of the defendant, the defendant was examined as D.W.1 and Exs. D1 to D51 were marked. 5. After going through the evidence on record and after giving due deliberation to the submissions made on both sides, the learned trial judge has decreed the suit partially. Aggrieved against the said decision of the trial Court, the defendant has preferred this appeal. 6. C.M.P.No.1349 of 2008: This is an application filed by the appellant under Order 41 Rule 27 of CPC seeking permission to file additional evidence in the appeal. The crux of the allegations made in the affidavit are as follows: The deceased 1st respondent (plaintiff) was the sister of the petitioner(defendant) and their father Rangasamy Reddiar who died on 25.02.1949 and their mother Ranganayaki died on 05.04.1979. The first wife of the father namely Mrs. Nagammmal died in the year 1961. The deceased 1st respondent got married to the 2nd respondent Kothandaraman and she deserted him and started living with 4th respondent Mr.M.Natarajan and thereby she severed connection with the petitioner's family. In the suit before the lower court the petitioner contested that the suit properties were joint family properties and the will dated 24.12.1948 said to have been executed by the father was not a genuine document. However the suit was decreed and against which the present appeal has been preferred by the petitioner. The petitioner could find certain documents after filing of the first appeal before this court to prove that the suit properties standing in the names of his father Rangasamy Reddiar were ancestral properties and the sale deeds dated 09.04.1919 and 09.09.1922 executed by late Rangasamy Reddiar and the sale proceeds itself were utilised for the purpose of the suit properties. Since these documents could not be produced at the time of trial and were found only recently after filing the first appeal before this court, these documents have to be permitted to be produced as additional evidence. 7. The contentions raised by the respondents 4 and 5 would be thus: https://hcservices.ecourts.gov.in/hcservices/ The application filed by the petitioner is liable to be dismissed on the ground of long delay. The will executed by the grand father of 5th respondent was a registered document dated 24.12.1948 and it was considered to be true and genuine and the suit was decreed by the lower court in favour of the 5th respondent's mother the deceased 1st respondent. During the pendency of the proceedings the 1st respondent executed a will dated 22.02.1991 bequeathing her share in the plaint schedule to the legatees mentioned in the will and subsequently the 1st respondent by 08.07.2001. The petitioner has taken advantage of the long interval in the impleadment of respondents 4 and 5, had come forward with the application for reception of additional evidence with false plea. The petitioner as D.W.1 has categorically admitted about his ignorance over the transactions had by his father prior to his birth. The present application filed by the petitioner for reception of additional evidence is not maintainable due to long delay and the petitioner did not explain the delay for non production of those documents before court below and before this court while filing the appeal. The said documents would not be helpful to adjudicate the case of the petitioner since Rangasamy Reddiar himself had stated in the will that the properties are all his self acquired properties. Therefore, the application filed by the petitioner for reception of those two documents are not maintainable and therefore it has to be dismissed. 8.On a careful perusal of the pleadings, evidence adduced on either side and the judgment and decree passed by the lower Court, I could see the following points emerged for disposal in this appeal:- 1. Whether the will dated 24.12.1948 was executed by Rangasamy Reddiar in a sound and disposing state of mind in the presence of two attesters and if so, has it come into effect? 2. Whether the defendant was entitled to the suit properties through adverse possession? 3. Whether the suit properties are the self acquired properties of deceased Rangasamy Reddiar? 4. Whether the suit properties are the ancestral properties of Rangasamy Reddiar? 5. Whether the two sale deeds sought to be produced as additional evidence are ordered to be received? 6. Whether the plaintiff is entitled for partition and separate possession of the suit property as prayed for? 7. Whether the will dated 22.02.1991 was executed by the deceased plaintiff in a sound and disposing state of mind in the presence of two attesting witnesses? https://hcservices.ecourts.gov.in/hcservices/ 8. Whether the respondents 2 and 3 are entitled to succeed to the estate of the plaintiff as legal heirs? 9. Whether the respondents 4 and 5 are entitled to succeed to the estate of the plaintiff as legatees of the will dated 22.02.1991? 10. Whether the judgment and decree passed by the lower court are liable to be set aside and is the appeal allowable? 11. Whether the application in C.M.P.No.1349 of 2008 for reception of additional evidence is allowable? 12. To what relief the appellant is entitled for? 9. Heard Mr.R.Subramanian, the learned senior counsel appearing for Mrs.Hemalatha, the learned counsel for the appellant/ defendant and Mr. P.Gopalan, the learned counsel appearing for the respondents 4 and 5. There is no appearance on behalf of the respondents 2 and 3. 10. Learned Senior counsel Mr.R.Subramanian would submit in his argument that the plaintiff and the defendant were sister and brother born to Rangasamy Reddiar and Ranganayaki Ammal along with the predeceased brother Madhavan and the father Rangasamy Reddiar had married one Nagammal as his first wife he had no issues through the said woman. The said Rangasamy Reddiar had purchased items 1 to 4 of the plaint schedule properties from and out of ancestral nucleus and the remaining items 5 to 10 of schedule mentioned properties were purchased from the income of the said properties but however, the lower court had erred in finding that the properties were belonging to him separately and decreed the suit. He would further submit in his argument that after the death of first wife Nagammal in 1961 the defendant alone was in exclusive and continuous possession and enjoyment of the suit properties of items 1 to 10 by way of ouster against the plaintiff and on that aspect also plaintiff was not entitled to the relief. 11. He would further submit in his argument that the plaintiff as a daughter would not succeed to the estate of Rangasamy Reddiar since the father Rangasamy Reddiar died on 25.02.1949 long prior to the promulgation of Hindu Succession Act in the year 1956. He would further submit in his argument that the will said to have been executed by the father on 24.12.1948 was not proved in accordance with law and further the plaintiff could not get any right from the suit properties, but for the Will. He would further submit that the plaintiff failed to prove the Will as per the provisions of Section 63 of Indian Succession Act and Section 68 and 69 of Indian Evidence Act. He would also bring it to the notice of this court an unreported judgment of this court made in O.S.A.Nos. 288 and 289 of 2006 dated 25.07.2008 in between N.Ranganathan vs. N. Saraswathi and Ors for the https://hcservices.ecourts.gov.in/hcservices/ said preposition of law. He would further submit in his argument that as per Section 68 of Indian Evidence Act at least one of the two attesting witnesses shall be called for and examined to prove the attestation. The said provision was not complied with by the plaintiff in proving the Will dated 24.12.1948 by examining anyone of the attesting witnesses. No other witness was examined for the proof of the Will and however the lower court had come to a conclusion that the Will has been proved because of its registration, which is erroneous in law. When the attesters are not available or the examination of attesters are not possible, the provisions of Section 69 of the Indian Evidence Act would come to play and accordingly, the person who is familiar and knows the handwriting of the attestor should have been examined to prove the attestation and that was also not done by the plaintiff, but still the will was concluded as a genuine one by the lower court. He would also submit that the plaintiff did not take any steps to summon the original will from the Sub Registrar's Office and however without the production of the original Will the court had erroneously come to a conclusion that the will was a genuine document which is certainly not in accordance with law. 12. He would further submit that the properties mentioned in item 1 to 4 in the suit properties were purchased by the father through the ancestral nucleus and at the time of trial and thereafter while filing the first appeal the appellant/petitioner was not aware of the existence of the two sale deeds executed by the father Rangasamy Reddiar in favour of third persons dated 09.04.1919 and 09.09.1922 for the purpose of buying the suit items 1 to 4 and they are available only now and therefore they should have been ordered to be received as additional evidence. The said documents will show nexus of the ancestral nucleus with the purchase of suit Items 1 to 4 as ancestral properties. According to him these documents would help the court to come to a correct conclusion that the properties are joint family properties in which the plaintiff may not have any right devolved on her death of his father Rangasamy Reddiar which is prior to the introduction of Hindu Succession Act 1956. He would also submit that the respondents 4 and 5 are claiming to be the legatees under a will executed by the deceased plaintiff and it has to be proved before the Court of law for the purpose of claiming the share of the plaintiffs as legatees of the will. All these points require further evidence and the court may call for findings on those aspects or safely remand the case for fresh disposal in accordance with law. He would further submit in his argument that the judgment and decree of lower court passed in the said suit have to, therefore, be set aside for facilitating the lower court to come to a correct conclusion after filing necessary pleadings and after adducing further evidence in the said case. 13. Learned counsel for the respondents 4 and 5 would submit in his argument that the sale deeds which are sought to be produced as additional documents now are not necessary since the testator himself https://hcservices.ecourts.gov.in/hcservices/ has mentioned in the will dated 24.12.1948 that those properties were his self acquired properties and he has also bequeathed the said properties as mentioned in the said will. Moreover, the evidence of D.W.1 would go a long way to show that he did not know about the circumstances prevailed during the purchase of items 1 to 4 of suit properties by the father of the present applicant. He would further submit that the two sale deeds produced now would not be helpful to the Court to come to a correct conclusion nor prove the case of the defendant that the properties are joint family properties. 14. He would further submit that the properties mentioned in items 5 to 10 were admittedly belonging to plaintiff, defendant and Nagammal purchased by Pal Reddiar and the said circumstance itself would go to show that the properties mentioned in item 1 to 4 were intended to be bequeathed by father in favour of the plaintiff and defendant. He would further submit in his argument that the sale proceeds through the sale deeds of the years 1919 and 1922 could not have been utilised by the father in the year 1928 to buy Ex.A1 property and in the year 1932 to buy Ex.A2 property. The property in Ex.A2 was purchased in auction sale by the father. He would further submit in his argument that he had taken all the steps to examine the scribe of the will who was aged more than 90 years but it could not be possible owing to the witness's disability. He had also tried his level best to examine the other witness. On considering these circumstances, the lower court was right in holding that the will executed by the father was a true document. He would draw the attention of the court to the judgment of Andhra Pradesh High Court reported in 2008 (5) ALT 505 in between Sri Gandrapu Gangaraj Choultry vs. G.S.V.V.Appa Rao (died) per L.Rs and others, and would submit that the said High Court had in the similar circumstances held that the will was true document. 15. He would also draw the attention of the court to a reported judgment of the Apex court reported in 2007 (3) MLJ 834 (SC) in between Makhan Singh (D) by Lrs vs. Kulwant Singh for the principle that when there is no income from the properties or from the members of the joint family, the properties should have been deemed as self acquired property on whose name the property stands. Therefore, the properties purchased by the father through Ex.A1 and A2 could be construed as self acquired properties of the father and therefore, he could validly execute the will through Ex.A3 and as per the said will the plaintiff and the defendant are equally entitled to items 1 to 4 of the suit properties, and remaining items 5 to 10 and the jewels described in items 11 to 14 are belonging to the family purchased through the income derived from items 1 to 4 of the suit properties and the plaintiff was left with the defendant and their mother, till their mother died in the year 1979 and therefore the plaintiff is entitled to half share in items 5 to 14 also. He would also submit further in his argument that the lower court had discussed all the points in detail and had come to a correct conclusion and therefore, https://hcservices.ecourts.gov.in/hcservices/ there is no need to interfere with the judgment and decree of the lower court. 16. He would further submit that the plaintiff died after the filing of this appeal by the defendant. The plaintiff had executed a will even in the year 22.02.1991 bequeathing her share in the suit properties in favour of respondents 4 and 5 with whom she lived and the 4th respondent lived with her as her husband and 5th respondent was born to them out of the said cohabitation and therefore as per the will dated 22.02.1991, the respondents 4 and 5 are the right parties to succeed to the estate of the plaintiff. Therefore, he would request the court to dismiss the appeal and confirm the judgment and decree passed by the lower court in favour of the plaintiff and held that the respondents 4 and 5 are entitled to succeed to the share of the plaintiff in the suit properties. 17. I have given anxious thoughts to the arguments advanced on either side. 18. While considering the arguments advanced on either side it has become necessary to dispose the case as per the points framed earlier. For convenience, the rank of parties before lower court are maintained. Points 3,4,5,7 and 9: The relationship in between the plaintiff and defendant that they are daughter and son born to Rangasamy Reddiar and Ranganayagi his second wife, and the father Rangasamy Reddiar married first wife Nagammal, and there was no issue born to them and the father died on 25.06.1949 and first wife died in the year 1961 without any issue and the mother Ranganayagi died on 05.04.1979. It is also not in dispute that one Madhavan was born to father and mother of the parties who also died in the year 1949. The plaintiff was married to one Kothandaraman the 2nd respondent herein and out of the wedlock the 3rd respondent daughter was born to them and thereafter, dispute erupted in between Kothandaraman and plaintiff and they got separated and the plaintiff had illicit intimacy with the 4th respondent Natarajan and she had lived with him and she also had eloped with the said Natarajan and lived as husband and wife and thereby