IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 04.06.2007 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI Appeal Suit No.600 of 1992 Tr.A.S.Nos.218 & 219 of 1997 1. Rachayee Ammal 2. Kaliammal 3. Chellammal 4. Palaniammal ... Appellants in A.S.No.600 of 1992/ Plaintiffs ... Appellants in Tr.A.S.No.218 of 1997/ Defendants V.Palaniammal ... Appellants in Tr.A.S.No.219 of 1997/ Plaintiff Vs. 1. Kaliannan 2. Saradambal 3. Special Office, Salem Co-operative Sugar Mill, Mohanur, Namakkal Taluk, Salem District. ... Respondents in A.S.No.600 of 1992/ Defendants Kaliannan ... Respondents in Tr.A.S.No.218 of 1997/ Plaintiff 1. Kaliannan 2. Saradambal 3. Veerappan ...Respondents in Tr.A.S.No.219 of 1997/ Defendants PRAYER: First Appeal against the Judgment and decree dated 26.06.1992 made in O.S.No.70 of 1988 on the file of Court of the Subordinate Judge, Namakkal. For Appellants : Mr.M.Venkatachalapathy, S.C. for Mr.N.Damodaran Mr.Mani For Respondents : Mr.S.Parthasarathy, S.C. https://hcservices.ecourts.gov.in/hcservices/ for Saravabhuman Associates for R1 and R2 Mr.V.Ravi Spl.G.P.(A.S) for R3 J U D G M E N T The plaintiffs 1 to 4 in O.S.No.70 of 1988 are the appellants in A.S.No.600 of 1992. The said suit was filed for a declaration that an amount of Rs.13993.88 being the price of sugarcane lying with the third defendant is belonging to the plaintiffs or in the alternative for a decree of partition and allotment of 4/10th share, apart from declaring that the item 2 of the suit property belonging to the plaintiffs or in the alternative granting 4/10th share and for a permanent injunction against the defendants 1 and 2 from carrying on agricultural operation alternatively praying for the decree of partition and allotment of 4/10th share to the plaintiffs in the suit properties. 2. Among the plaintiffs in the suit, the first plaintiff is the mother and other plaintiffs are her daughters. The first defendant is the son of the first plaintiff and the brother of the other plaintiffs and the second defendant is the wife of the first defendant. It is also now admitted by the learned Senior Counsel appearing for the appellants across the bar that the appellants 1 to 3, who were plaintiffs 1 to 3 in the suit, have joined with the respondents 1 and 2, namely, the defendants 1 and 2 in the suit and only the 4th defendant who is the 4th appellant is conducting the proceedings. 3. The case of the plaintiffs in the suit is that there are 6 items of properties out of which the first item is relating to the amount of Rs.13,993.88 pending with the third defendant and the second item consisting of value of 6 shares at Rs.4,000/- given by the third defendant in favour of the first plaintiff's husband Late Veerappa Gounder and others are landed properties. The case of the plaintiffs is that the husband of the first plaintiff and the father of the other plaintiff and the first defendant Veerappa Gounder, died on 08.05.1987. Even during his lifetime he has orally partitioned the properties between himself and the first defendant and they were doing agricultural operations separately by supplying sugarcane to the third defendant mill. The first plaintiff’s husband during his lifetime has executed a will dated 24.12.1986 bequeathing his properties in favour of the first plaintiff during her life time and thereafter to be absolutely taken by the other plaintiffs 2 to 4. After the death of the husband, the first plaintiff has supplied 60 tones of sugarcane to the third defendant at the rate of Rs.237.50 and the plaintiffs are entitled for the remaining amount. https://hcservices.ecourts.gov.in/hcservices/ 4. It is the case of the plaintiffs that even if it is held that there was no oral partition between Veerappa Gounder and the first defendant, the plaintiffs are entitled for partition and also entitled for the share as per the Will of Veerappa Gounder. It is also the further case of the plaintiffs that even if the Court comes to the conclusion that the Will of Veerappa Gounder is not proved, as per the Hindu Succession Act, the plaintiffs are entitled for 4/10th share and the defendants are entitled for 6/10th share in the suit properties. 5. The first defendant has filed the written statement. While admitting the relationship between the parties, the first defendant denies the allegation of oral partition between Veerappa Gounder and the first defendant. According to the first defendant, the said Veerappa Gounder and himself were enjoying the specified portions for convenient purposes and they formed part of the Hindu Undivided Joint Family till the death of Veerappa Gounder. According to the first defendant, his father Veerappa Gounder along with his brother by name Palaniyandy and his two sons Kaliyannan and Veerappan, apart from the said Veerappa Gounder’s father Muthu Veerappa Gounder and the said Veerappa Gounder’s mother Karupayee have divided the properties under a registered partition deed on 14.04.1972. In the said partition deed, the first defendant as well as his father Veerappa Gounder were parties and they were allotted jointly A Schedule properties in the said partition deed and after allotment they continue to be in joint possession. The first defendant also denied the execution of a Will by Veerappa Gounder on 24.12.1986 and therefore, the claim of the plaintiffs that the first plaintiff has a life interest and other plaintiffs have vested remainder, was also denied. According to the first defendant, even if the Will is true the same is not valid in law, since the first defendant’s father himself has no right to execute a Will bequeathing a specified item of joint property, since the same does not exclusively belong to him. 6. As per the partition deed dated 14.04.1972, it was the first defendant and his father Veerappa Gounder who got the properties, while so, the claim of the plaintiffs as if Veerappa Gounder by a Will dated 24.12.1986 gave all his properties in favour of the plaintiffs is not maintainable, since there was no division between the said Veerappa Gounder and the first defendant and therefore, according to the first defendant the Will is not valid as per Section 30 of Indian Succession Act. It is the further case of the first defendant that the said Veerappa Gounder has in fact cancelled the Will dated 24.12.1986 by a subsequent Will dated 02.04.1987 by giving his undivided half share both movable and immovable properties in favour of the first defendant https://hcservices.ecourts.gov.in/hcservices/ and therefore, as per the said last will of Veerappa Gounder dated 02.04.1987, the first defendant is entitled for the entire properties and the plaintiffs have no proprietary right over any of the properties. 7. It is also the case of the first defendant that as per the said will, Veerappa Gounder has directed the first defendant to pay Rs.1,500/- per year to the first plaintiff, being his mother as maintenance till her life time and also to pay Rs.1,000/- each to plaintiffs 2 to 4 as legacy which amount the first defendant is always ready and willing to pay. It is also the first defendant’s case that the will executed by his father on 02.04.1987 was given when he was in a sound state of mind. The first defendant also further denies the oral partition between him and Veerappa Gounder prior to 24.12.1986. The third defendant has filed written statement stating that in respect of supply of sugarcane, an amount of Rs.13,993.88 has been sent to Canara Bank, Mohanoor in the account of Veerappa Gounder. That apart from the third defendant there is no amount due to Veerappa Gounder. It is also denied by the third defendant that the first plaintiff has supplied 60 tones of sugarcane to the third defendant. 8. The fourth plaintiff in the above said suit has filed O.S.No.387 of 1991 against the defendant for a permanent injunction in respect of the above said properties in the Subordinate Court, Namakkal (O.S.No.347 of 1990 District Munsiff Court, Namakkal) on the same averments namely, relying upon the "Will" of Veerappa Gounder dated 24.12.1986 and also stating that based on the will when the plaintiff in the said suit has proceeded to reap the crops the defendants have obstructed and therefore, the suit for injunction was filed. The first defendant in the said suit has also filed a written statement in the same line was filed in the previous suit basing reliance on the will of his father dated 02.04.1987. 9. The first defendant in the above suit has filed a suit in O.S.No.108 of 1991 on the file of the Subordinate Court, Namakkal (O.S.No.669 of 1991, District Munsiff Court, Namakkal) against the plaintiffs in O.S.No.70 of 1988 for a declaration that the plaintiff is entitled for all the suit properties on the basis of the Will of his father Veerappa Gounder dated 02.04.1987 and also stating that Veerappa Gounder and himself have obtained the properties under a partition deed earlier and they were in joint possession and Veerappa Gounder who had no right of executing a Will earlier on 24.12.1986 has cancelled the Will and then subsequently made his last Will of 02.04.1987 bequeathing his undivided share in his favour. The defendant in the said suit has also filed a written statement contending inter-alia what they have stated in the plaint in O.S.No.70 of 1988. All the three https://hcservices.ecourts.gov.in/hcservices/ suits were taken together for trial. 10. The Trial Court has framed issues including, as to whether the third defendant in O.S.No.70 of 1938 is a necessary party and as to whether there was any amount lying with the third defendant to be paid to the Veerappa Gounder apart from the issue as to whether the plaintiff in O.S.No.70 of 1988 are entitled for partition. The further issues framed in the other suits are, as to whether the plaintiff in O.S.No.108 of 1991 who is the first defendant in O.S.No.70 of 1988 is entitled for declaration based on the Will executed by his father Veerappa Gounder dated 02.04.1987 and as to whether the suit properties are in possession of the plaintiff in O.S.No.108 of 1991. The further issue framed in O.S.No.387 of 1991 was as to whether the Will executed by Veerappa Gounder on 24.12.1986 is true and whether the plaintiff in O.S.No.387 of 1991 who is the fourth plaintiff in O.S.No.70 of 1988 is entitled for permanent injunction. On the plaintiff side in O.S.No.70 of 1988, the fourth plaintiff who was the sole plaintiff in O.S.No.387 of 1991 was examined as P.W.1. In addition to that, three more witnesses were examined as P.W.2 to P.W.4. On the defendant side in O.S.No.70 of 1988 who is also plaintiff in O.S.No.108 of 1991 the first defendant in the said suit Kaliyannan was examined as D.W.1. In addition to that there were four more witnesses who were examined as D.W.2 to D.W.5. On the side of the plaintiff Exs.A.1 to A.17 were marked and on the side of the defendants Exs.B.1 to B.21 were marked apart from the Commissioner report and sketch were marked as Exs.C.1 and C.2. 11. On analysis of the entire evidence and appreciation of documents, the Trial Court has dismissed O.S.No.70 of 1988 filed by the plaintiffs therein claiming for partition and decreed the suit filed by the first defendant in O.S.No.70 of 1988, namely, O.S.No.108 of 1991 declaring the plaintiff in the said suit to be the owner of the entire suit properties and also dismissed the suit in O.S.No.387 of 1991 filed by the fourth plaintiff in O.S.No.70 of 1988 for injunction. It is as against the said common judgement, the plaintiff in O.S.No.70 of 1988 has filed A.S.No.600 of 1992 on the file of this Court. It is seen that as against the judgment of the Trial Court in O.S.No.108 of 1991 which was originally filed as O.S.No.669 of 1991 in the District Munsiff, the defendant therein has filed A.S.No.142 of 1993 on the file of the District Court, Salem and the said appeal was transferred to this Court in Transfer A.S.No.218 of 1997. 12. Likewise, as against the judgement in O.S.No.387 of 1991 the plaintiff therein has filed A.S.No.143 of 1993 on the file of the District Court, Salem which was transferred to this Court and numbered as Transfer A.S.No.219 of 1997 and all the three appeals were taken together jointly. As per the contention, as stated https://hcservices.ecourts.gov.in/hcservices/ above, in respect of all the four plaintiffs in O.S.No.70 of 1988 who are all the appellants in A.S.No.600 of 1992 the appellants 1 to 3 who are the mother and sisters respectively of the first respondent (First defendant in the suit) have gone to the side of the respondent and therefore, it is only the fourth appellant Palaniyammal who is the fourth defendant in the said suit who is contesting. She was the plaintiff in O.S.No.387 of 1991 for a permanent injunction filed based on the Will executed by her father Veerappa Gounder dated 24.12.1986 which was dismissed and also fourth defendant in the suit filed in O.S.No.108 of 1991 filed by the first defendant in O.S.No.70 of 1988 for a declaration that the Will executed by his father Veerappa Gounder on 02.04.1987 is valid and he is entitled for the entire suit property. It is seen that the relationship between the parties are admitted. While it was the case of the fourth plaintiff in O.S.No.70 of 1988 who was examined as P.W.1 that there was a oral partition between her father Veerappa Gounder and his brother first defendant Kaliyannan based on which the father was living on the Western side and the brother was living on the Eastern side separately. Even though she had admitted that there was no partition deed between them ,her case was that it was a oral partition effected 15 years before. 13. It is to substantiate her contention she had examined P.W.4 one Dhanapal who has chosen to state that there was a oral partition between the first defendant and his father Veerappa Gounder and the said witness was unable to point out what are the other lands available adjacent to the said lands. He has also admitted that he was involved in a murder case and he was not living in Mohanoor Village at all and living in Vettapalayam. The Trial Court has also found that P.W.1 herself was not able to specify as to what are the lands which were divided between her father Veerappa Gounder and the first defendant her brother. It is seen under Ex.A.1 that Veerappa Gounder died on 08.05.1987 and the plaintiffs especially 4th plaintiff in O.S.No.70 of 1988 has relied upon the Will stated to have been executed by her father Veerappa Gounder dated 24.12.1986 marked as Ex.A.2. It is her case that under Ex.A.2 the life interest was given in the suit properties to her mother the first plaintiff and after her life time vested remainder was given to all other plaintiffs who are her sisters. 14. It is also admitted that Ex.A.2 will is a registered Will. It is seen that as found by the Trial Court Ex.A.2 produced by the plaintiff has not been proved in the manner known to law. The attesting witness under Ex.A.2 Will who was examined as P.W.2 Shankara gounder even though has examined himself in the chief examination, has not submitted himself for cross examination and therefore, the Trial Court has correctly found that his evidence https://hcservices.ecourts.gov.in/hcservices/ cannot be considered for the purpose of deciding as to whether the Ex.A.2 Will has been proved. It is also found by the Trial Court that P.W.4 one Dhanapal was examined on the side of the plaintiff who is stated to have been the scribe of Ex.A.2. It is seen from his evidence that even though he has written Ex.A.2 Will since he is an authorized scribe in the registrar office, he would admit that he does not know who has executed Ex.A.2 and who has signed as attesting witness. The Trial Court has also considered the specific evidence of P.W.4 saying that he has not seen Veerappa Gounder signing Ex.A.2. Therefore, on the analysis of the evidence, the Trial Court has come to the conclusion that Ex.A.2 cannot be stated to have been proved, the Trial Court has also found that the claim of the plaintiff that there was a oral partition between Veerappa Gounder and his son the first defendant Kaliyannan has also not been proved on the basis that the plaintiff herself is not able to explain as to what are the portions given to the first defendant and what were the remaining portions kept by Veerappa Gounder and there was no independent evidence also. 15. On the other hand the first defendant in O.S.No.70 of 1988 has relied upon a Will executed by his father Veerappa Gounder dated 02.04.1987 marked as Ex.B.1 and after executing the said Ex.B.1 Will his father Veerappa Gounder died 08.05.1987. It is to prove the said Ex.B.1 Will the defendant has examined the attesting witnesses of the said Will as D.W.2 and D.W.3. Even though it was the contention of the plaintiff that the said defendant witnesses have stated that in Ex.B.1 Will there was no mentioned about the previous Will and therefore, the said witnesses cannot be believed, on the factual finding that D.W.2 and D.W.3 are not having any enmity towards the plaintiff and the trial court has come to the conclusion that Ex.B.1 has been proved through attesting witnesses in the manner known to law. It was on that basis the Trial Court has dismissed the suit in O.S.No.70 of 1988 and also decreed the suit filed by the first defendant in the said suit, namely, in O.S.No.108 of 1991. 16. Mr.Venkatachalapathy, learned Senior Counsel appearing for the plaintiff would submit that it remains the fact that Ex.A.2 Will executed by Veerappa Gounder was a registered one and the same has been admitted even in the subsequent Will of Veerappa Gounder marked as Ex.B.1. The main contention is that when the second will which is relied upon the first defendant was executed on 02.04.1987 and the said Veerappa Gounder died in a matter of one month, namely, 08.05.1987 it creates a cloud as to whether Veerappa Gounder was in sound state of mind. He would also submit even assuming that Ex.B.1 Will executed by Veerappa Gounder dated 02.04.1987 is valid, the present suit was filed on 24.02.1988 and from the date of death of Veerappa Gounder who died on 08.05.1987 https://hcservices.ecourts.gov.in/hcservices/ the first defendant has not taken any steps to pay any amount to the first plaintiff his mother, the amount of Rs.1,500/- as maintenance per annum as contemplated under Ex.B.1 itself and also to the plaintiffs 2 to 4 Rs.1,000/-. This also according to the learned Senior counsel shows that the Will relied upon by the first defendant cannot be taken to have been properly executed. 17. His further contention is that when the Will relied upon by the first defendant under Ex.B.1 excludes the entire line of legal heirs on the female side it is for the first defendant to explain the same. He would also submit that inasmuch as the second Will relied upon by the first defendant marked as Ex.B.1 contains a clause in respect of Ex.A.1 Will dated 24.12.1986 there is no need or necessity for proving the said Ex.A.1 Will at all. He would submit that in such circumstances the onus is upon the first defendant to prove as to whether Ex.B.1 Will was properly executed. According to him there has been a contradiction in evidence and therefore, the Will cannot be stated to have been proved. He would also submit that even though a Commissioner's report has been filed marked as Ex.C.1 and C.2 the Trial Court has not taken it into consideration. He would rely upon the judgement of the Hon’ble Supreme Court reported 2005(1) SCC 280 and 1992(2) SCC 507 to show that in cases of suspicious circumstances the person who rely upon the Will should prove in accordance with law. 18. On the other hand, Mr.S.Parthasarathi, learned Senior Counsel appearing for the respondent, while admitting that Ex.B.1 Will which is relied upon by his client states about the earlier Will of Veerappa Gounder dated 24.12.1986 marked as Ex.A.2, and there is no necessity to prove Ex.A.2 because even as per the recital in Ex.B.1, A2 stood cancelled. He would also fairly submit that as per Section 68 of the Indian Evidence Act, even if there is no denial of execution of a Will the same has to be independently proved. He would submit as per the combined reading of Section 68 of Indian Evidence Act, and Section 63(c) of the Indian Succession Act, the Will has to be proved. It is in view of that he would submit it is not even the case of the plaintiff that at the time when Ex.B.1 was executed by Veerappa Gounder in favour of the first defendant, the said Veerappa Gounder was not in a sound state of mind. Apart from the fact that when D.W.1 was cross examined, a suggestion was put to him that Ex.B.1 was forged one, there was no pleading about the forgery and there was no proof at all, especially in the circumstance, that attesting witnesses D.W.2 and D.W.3 have categorically spoken about the execution of Ex.B.1 in the manner known to law. He would also submit that merely because a Will is unregistered that itself cannot be a ground for raising suspicion. He would also submit that the very fact that adangal and other public documents including the patta stood transferred in the name of the first https://hcservices.ecourts.gov.in/hcservices/ defendant after the execution of a Will shows that Ex.B.1 Will has been acted upon. As far as the objection regarding Commissioner’s report, it is the case of the learned Senior Counsel that inasmuch as the Commissioner’s report was intended only for the purpose of speaking about the prior partition and the Commissioner’s report cannot say anything as to who is in possession, there was no necessity to deal with such report at all since that was not the issue involved in this case. Therefore, according to the learned Senior Counsel the reasoning given by the Court below is based on proper appreciation of evidence and the same can never be held to be wrong and therefore, there is absolutely nothing to interfere. 19. After hearing the learned Senior Counsel for the appellant as well as the respondent and on perusal of the entire records the point that arise for determination in this is case as to whether 1) the first defendant in O.S.No.70 of 1988 and his father Veerappa Gounder have orally divided among themselves and living separately? 2) the Will stated to have been executed by Veerppa Gounder in favour of the plaintiff in O.S.No.70 of 1988 marked as Ex.A.1 dated 24.12.1986 is valid and stood proved. 3) the Will stated to have been executed by Veerappa Gounder in favour of the first defendant in O.S.No.70 of 1988 on 02.04.1987 stood proved. 20. As I have stated earlier the relationship between the parties are not in dispute, namely, the first plaintiff Rachayeeammal in O.S.No.70 of 1988 is wife of late Veerappa Gounder and plaintiffs 2 to 4 are their daughters while the first defendant his son and the second defendant is the wife of the first defendant. It is also not in dispute that Veerappa Gounder died on 08.05.1987 as it is seen in Ex.A.1 death certificate. It is also not in much dispute by the defendants that Veerappa Gounder has executed originally a Will dated 24.12.1986 marked as Ex.A.2 under which the said Veerappa Gounder has given life interest to his wife the first plaintiff Achayeeammal and after her death vested remainder to all other plaintiffs who are the daughters, thereby not giving any property to the first defendant who is admittedly his son born through Rachayeeammal. It is seen under Ex.B.2 partition deed dated 14.04.1972, which is a registered document entered between the father and mother of Veerappa Gounder, namely, Muthu Veerappa