IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-11-2009 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN A.S. No. 678 of 2002 Marie Louise ..Appellant/Defendant Versus Marie Bernadette ..Respondent/Plaintiff Appeal filed under Section 96 of Code of Civil Procedure against the Judgment and decree dated 09.07.2002 made in OS. No. 53 of 1999 on the file of the Additional District Judge, Karaikal For Appellant : Mr. S.V. Jayaraman, Sr. Counsel for Mr. T. Susindran For Respondent : Mr. G. Masilamani, Sr. Counsel for M/s. G.M. Mani Associates JUDGMENT The defendant in O.S.No.53 of 1999 on the file of the Additional District Judge, Karaikal is the appellant in this appeal. The suit was filed by the plaintiff/respondent herein for partition claiming half share in suit 'A' and 'B' schedule properties. The suit was decreed as prayed for, which resulted in filing of the present appeal by the defendant/appellant. 2. For the sake of convenience, the parties shall be referred to as Plaintiff and Defendant, as they were arrayed before the trial court. 3. The Plaintiff and defendant are sisters born to Paul Pacroni Ignace and Pajani Ammalle @ Lourde Marie Paul. The said Paul Parconi Ignace was a Brigadier in the French Army and he possessed extensive properties in Karaikal and Pondicherry, which were acquired out of his own funds. The said properties are the subject matter of the suit filed by the plaintiff. Mr. Paul Pacroni Ignace died on 15.06.1968 leaving behind his wife Mrs. Pajani Ammalle and two daughters, the plaintiff and defendant herein. According to the plaintiff, the properties left out by their father are morefully described in the schedule hereunder. Her father left behind a Will by which the entire property acquired by him were given to his wife Pajani Ammalle to be enjoyed till her life time. Her mother Pajani https://hcservices.ecourts.gov.in/hcservices/ Ammalle executed a 'Will' during 1992 and thereafter cancelled it. According to the plaintiff, as per the French Law, with or without a Will, the widow holds the property entirely until her life time and thereafter, the children can take them equally. It is further stated that her mother Pajani Ammalle has made some improvements in the properties from and out of the pension received by her, especially for the house at Gnanaprakasam Street, Karaikal. The Plaintiff, her husband and their children are living at France by reason of their occupation and education. The defendant was with the mother, assisting her and the mother was depending the defendant entirely due to her ill health. On 03.09.1993, Pajani Ammalle died at Karaikal. At the time of her death, Pajani Ammalle had jewels in the residential house and also in the locker at State Bank of India. According to the plaintiff, the widow Pajani Ammalle has no extended right over the properties of her husband than the one conferred by law. It was further contended that the dwelling house is constructed in such a manner that it has two separate houses connected by a path. It has been built as two independent houses with a connecting pathway so as to be enjoyed by the plaintiff and defendant equally. 4. According to the plaintiff, when the plaintiff visited the defendant in the suit house, the defendant told the plaintiff that the mother had left a Will bequeathing the entire property in her favour. According to the plaintiff, the mother had no testamentary capacity on the property of her husband. Even if there is a Will, it will be of no consequences and when the same was directed to be produced, the defendant did not do so. Thereafter, since the plaintiff had to return to France, she had issued a notice dated 03.07.1998 to the defendant for which no reply was sent. Therefore, after coming to India, the plaintiff collected the information regarding the properties acquired by her father and mother and thereafter suit was filed for the relief of partition. The Plaintiff also sought the leave of the trial court to permit her to add some other properties which may be left out at the time of filing the suit. According to the plaintiff, under French Law, the plaintiff and the defendant are the sole surviving legal heirs and therefore they are entitled to divide the properties into each half share, hence, the suit is maintainable. 5. The defendant filed a written statement stating that the suit is speculative in nature. The Plaintiff, knowing fully well that she cannot claim any share in the suit property, has filed the present suit. The Plaintiff never asked for a share from this defendant, however, with a view to cause harassment to her, the suit was instituted. According to the defendant, the plaintiff used to come to Karaikal every year and stay with the defendant. She also visited the defendant even after the demise of her father in 1968. During every such visit, the plaintiff used to stay with the defendant, but she never asked for any partition for the simple reason that she knew that she is not entitled to any share in the https://hcservices.ecourts.gov.in/hcservices/ property. The defendant would further contend that the defendant only sold her properties in favour of her mother so as to enable her mother to raise funds to meet out the expenses for plaintiff's first marriage, divorce proceedings and also for second alliance with Mr. Calliard Joseph and keeping in mind the gratitude shown by the defendant towards the welfare of the plaintiff, her mother Pajani Ammalle executed a Will dated 08.04.1992 by specifically excluding the plaintiff and conveyed all the properties to be enjoyed by this defendant. Furthermore, the mother was totally taken care of and looked after only by this defendant. It was further contended that even during the life time of Pajani Ammalle , some of the properties were let out to tenants and there were lots of disputes with regard to the tenancy, which were looked after by her by contesting cases for and on behalf of the family and she was managing the affairs and maintaining the properties. As owner of the properties, she was contesting the cases. She would further contend that the Will dated 08.04.1992 was also produced in the earlier litigations between the defendant and the third parties and based on that she claimed that she was the owner of the properties. As far as the residential house is concerned, she has put upconstruction with the earnings of her husband and children, who are residing in France and those constructions were made only after the demise of Pajani Ammalle. Therefore,the entire property devolve only on the defendant. 6. The defendant would contend that the residential house at Gnanaprakasam Street was renovated by her. The title deeds and other documents alone were kept in the locker. After getting succession certificate from this Court in S.O.P. No. 2 of 1994 dated 23.03.1995, she was operating the bank locker. According to the defendant, there were no jewellery left out by Pajani Ammalle in the locker. As the plaintiff is hostile towards the defendant on seeing the improvements made in the building, the vexatious suit was filed. The defendant would further contend that under French Law, mother had every right to dispose of the property as per her wish and her mother Pajani Ammalle has given every justifiable reasons in her last Will as to why the plaintiff was excluded from enjoying any of the properties. It was also stated in the Will that the plaintiff was given more cash and jewellery and amount was spent for performance of the first marriage of the plaintiff, divorce proceedings and also for the second marriage. It was further contended that there is no need or necessity to effect partition as the plaintiff is not entitled for the partition. 7. Before the trial court, the plaintiff's husband was examined as PW1 and two other witnesses have been examined as PWs 2 and 3. The Plaintiff has maried Exs. A1 to A7 on his side. On behalf of the defendant, the defendant examined herself as DW1 and one of the attesting witnesses of the Will was examined as DW2 and the scribe of the Will was examined as DW3. The defendant marked Exs. B1 to B17. The Trial Court, after considering the oral and https://hcservices.ecourts.gov.in/hcservices/ documentary evidence passed a decree and judgment in favour of the plaintiff, which is questioned in the present appeal. 8. Heard the counsel for both sides. The point for consideration in this appeal is as follows:- (i) Whether the execution of the 'Will' dated 08.04.1992 said to have been executed by Pajani Ammalle is proved? (ii) Whether the plaintiff is entitled for partition of half share in the suit properties? (iii) Whether the defendant established her right under the 'Will' Ex.B4? 9. The learned senior counsel for the appellant/defendant contended that the Plaintiff, who has come to Court, has not established what are all the properties originally owned by her father and what are all the properties acquired by the mother, after the death of the father. The mother was living all along with defendant alone and the Will was executed in the normal circumstances, taking into consideration the huge amount of expenditure incurred by the mother for performance of the first marriage of the plaintiff, for divorce proceedings and for the second marriage. Under such circumstances, in view of the huge expenditure incurred by the mother for the plaintiff, the deceased mother thought it fit to convey the properties in favour of the defendant. It is further submitted that the Will was executed only to that extent and this was not questioned by the plaintiff because she knew well that she is not entitled for any share in the suit properties. It was further argued that the plaintiff used to visit Karaikal every year and even stayed with the defendant, yet, she has not made any claim in the properties. 10. It is further argued by the learned senior counsel for the defendant/ appellant that originally some of the properties were owned by the father and thereafter, mother also acquired certain properties out of her own income and both the properties were jointly enjoyed by the defendant against the interest of the plaintiff for a long time and therefore it is not open to the plaintiff to claim partition. Further, for all the properties enjoyed by the defendant, patta has been granted in her name. 11. The learned senior counsel for the defendant/appellant further argued that the mother not only executed the Will, Ex.B4 dated 08.04.1992 but also executed two settlement deeds on the same day. One settlement deed is Ex.B15 which is in respect of the property at Gnanaprakasam Street and the other one is Ex.B16 dated 08.04.1992 in respect of item Nos. 9 and 10 of the suit properties. Further, in order to prove the execution of the Will, the defendant https://hcservices.ecourts.gov.in/hcservices/ has examined the Attestor of the Will as well as the scripe. The learned senior counsel further submits that the original of the Will has been torned into many pieces for which it was explained that when the plaintiff visited the house along with her children in the year 1992, the Will was shown to her and at that time, the plaintiff's child, in a playful mood, torned the original Will. However, the defendant had collected the torned pieces and kept it intact, but in those pieces, the date, signature and place could not be found. Merely because the Will is torn, that by itself would not denote that the Will has been abandoned or cancelled. The learned senior counsel further pointed out that a registered will has tobe cancelled only by a registered document, but no such document, either registered or unregistered has been executed. It was not the case of the plaintiff that the attestor herself torn the very Will so as to make it non-est in the eye of law. Under those circumstances, the claim of the defendant/appellant that the mother, on her own, has excluded the plaintiff from getting any share in the suit property is well founded. The Plaintiff is residing away from the suit properties for the past thirty years. The Plaintiff, having got the jewels and made the mother to spend for her first marriage, divorce proceedings and for the second marriage, is estopped from claiming any share in the suit properties. The Will has been duly executed and proved as per Sections 63 and 68 of Indian Evidence Act since the attesting witness as well as the scribed were examined, therefore, the burden has been discharged by the defendant to prove the execution of the Will. Once the execution of the Will has been established and proved in accordance with law, the court below ought not to have decreed the suit instead of dismissing it. 12. As far as French Code is concerned, the learned Senior Counsel for the defendant/appellant states that the mother has also got every right to execute the Will in favour of the defendant. 13. Per contra, the learned Senior counsel for the Plaintiff/respondent would specifically argue that at the first instance, in the plaint, it was specifically averred that the Will executed by the mother was duly cancelled and this averment in the plaint was not at all denied in the written statement. If there is no specific denial, as per Order VIII Rule 5 of CPC, it tantamounts to an admission and the principle, without a plea no amount of evidence is permissible, will come into play. Therefore, when the Will has been cancelled as per law, the provisions of French Code automatically applies to the case on hand, where, after the demise of the mother, whatever property the mother inherited from her husband would devolve upon plaintiff and defendant, because the mother holds the property only as a life estate holder. Therefore, after the death of the mother, the property would automatically falls to the share of the plaintiff and defendant. In this connection, the learned senior counsel for the respondent/plaintiff relied on the decision reported in (S. Sadagopa Ramanujam vs. S.R. Rengasamy Iyengar & 2 others) 1995 https://hcservices.ecourts.gov.in/hcservices/ I CTC 547 wherein a Division Bench of this Court held that a denial should be specific, clear and unambiguous. In the absence of any specific denial, on the part of one of the parties, the suit has to be decreed or dismissed as the case may be in accordance with the admission made by the parties. If there is no specific denial in the written statement, it will amount to admission of the case put forward by the plaintiff in the plaint. Therefore, a general denial is not sufficient. 14. The learned senior counsel for the respondent/plaintiff would further contend that as per the French Code, the mother, after the demise of the husband, has got only a life estate right and she cannot extend this right and execute any Will. Even if there is a Will, that Will has been cancelled, as pleaded in the plaint. In this connection, the learned senior counsel for the respondent/plaintiff drew the attention of this Court to the pleadings in the written statement and submitted that no where in the written statement, the defendant has ever stated that the original Will was torn and this vital point has not been pleaded in the written statement. Only in the deposition of DW1, it has been stated that the Will has been torned into pieces by the plaintiff's children. Further, the Will does not contain the portions of the date, description, signature or thump impression of the executor. So, when the Will does not contain the very vital parts, such a document cannot be considered to prove the execution of the Will. Further, one of the modes of cancellation prescribed is torning the document. Therefore, only with an intention to cancel the Will, the mother had torn the Will into pieces and therefore, it is not open to the defendant to argue this point without there being any pleading to that effect in the written statement. The evidence let in with regard regard to torning of document allegedly by the plaintiff's child cannot be accepted. If really the Will was torn by the child in a playful mood, the defendant could have taken some steps to get a letter from the executor or otherwise execute a fresh Will, but the same was not done in this case. 15. It was further argued by the learned senior counsel for the respondent/ plaintiff that merely by examining the attesting witness and scribe, it cannot be said that the defendant has proved the execution of the Will especially, neither the attesting witness nor the scribe would say in their evidence that they subscribed their signature in the presence of the executor or they have seen the executor subscribing her signature in their presence. Under these circumstance, the execution of the Will has not been proved by the defendant in accordance with Section 65 and 68 of the Indian Evidence Act 16. The learned senior counsel for the plaintiff/respondent submitted that the suit properties were purchased by the father, being a Brigadier and he had huge income to purchase the properties. https://hcservices.ecourts.gov.in/hcservices/ It is admitted that the father had executed a Will and in the plaint, the plaintiff has clearly stated those items of the property purchased by the father, but the defendant has not chosen to produce the Will or even a copy of the Will, even though it was stated in the evidence that he has sent for the document. If the defendant produced the Will executed by the father, it would have indicated the properties purchased by the father, after his death, naturally the mother would get only a life estate holder, after the death of the mother, the properties would fall to the share of the plaintiff and defendant equally. 17. The learned senior counsel vehemently contended that the court below has taken into consideration the admission made by the defendant that the plaintiff and her children used to visit the defendant every year and stay with her, in such event, it is clear that the defendant was not enjoying the suit properties adverse to the interest of the plaintiff. Merely because a party was not claiming her right in the property for some time, it would not disentitle her to make such a claim later. In so far as the allegation with regard to the cases conducted by the defendant against the tenants in respect of the suit properties and for maintenance thereof, such an act is being done by the defendant, as one of the coparceners of the suit property and it is intended for the benefit and interest of both the co-owners of the suit properties. Merely because the defendant conducted cases, that by itself would not prove that the property has been enjoyed by the defendant exclusively as her own property. Moreover, even in the alleged cases conducted by the defendant against the tenants, the Will was not produced in original. The copy of the Will alone was produced. In the succession Certificate case filed by the defendant, the plaintiff was not added as a party. As long as the plaintiff was not made as a party, whatever document produced by the defendant to get a succession certificate will not cure the defect or enure it to the benefit of the defendant. Therefore, the findings, if any, given by the court below in respect of the execution of the Will will not bind this plaintiff/respondent in any manner. 18. As far as the French Code is concerned, Article 718 contemplate the opening of a succession and of the Seisin of the heirs. It is stated in Article 718 that a succession becomes open by either natural or civil death. Article 723 of the French Code contemplates that "The Law regulates the order of succession between legitimate and illegitimate heirs. If there are none, the property passes to the surviving husband or wife and in default of such person, to the State." Similarly, Article 745 denotes that "Children or their descendants inherit the property of their father and mother, grandparents or other ancestors, without distinction of sex or right of primogeniture, even if they are the issues of different marriages. They inherit equally or per capita when they are all related in the first degree to the deceased and entitled in their own right; they https://hcservices.ecourts.gov.in/hcservices/ succeed per stirpes when all or some of them inherit by representation." Article 757 deals with the Rights of the Surviving Husband or Wife and of those of the State. It is useful to extract Article 757, which reads as follows:- "When the deceased leaves neither relatives within the heritable degrees nor illegitimate children, then the property belonging to the succession belongs to the deceased's wife or husband, if there is a wife or husband surviving, provided that such wife or husband has not been divorced, or there is no separation order which has become res judicata. The surviving wife or husband and who is not divorced and against whom a separation order has not been issued which has become res judicata, is, when not entitled to the whole property, entitled to a usufruct over the deceased's property as next mentioned – viz., over a quarter of the deceased's property if the deceased has left one or more children issue of the marriage, over a portion of the deceased's property equal to that of the legitimate child who takes lease, but never exceeding a quarter if the deceased has a children by a former marriage; over a half in every other case, whatever may be thenumber or relationship of the heirs. 19. The learned senior counsel for the plaintiff/respondent further pointed out Article 776 of the French Code which contemplates that "A married women cannot validly accept a succession without being authorised to do so by her husband or by a Court, under the provisions of Chapter VI of the title "Concerning Marriage"." 20. Relying upon the above Articles of French Code, the learned senior counsel for the Plaintiff/respondent contended that the mother has no right to gift or alienate or dispose of the properties, much less by executing a Will in favour of the defendant, hence, the Will said to have been executed by the Mother in favour of the defendant is not valid as per the French Code. A person who has no right to execute a Will, executes a Will in favour of some one, such a document can be construed as non-est in the eye of law. Even in the settlement deeds, which were executed on the same date when the Will was allegedly executed, the mother herself admits that the property has been acquired by her husband. Therefore also, it is not open to the mother to exeucte the Will. Under those circumstance, it was contended that the Court below has rightly decreed the suit and interference of this Court is not warranted. 21. For the above said argument, the learned senior counsel for the Defendant/Appellant replied that in the written statement, it was https://hcservices.ecourts.gov.in/hcservices/ admitted that originally the property belonged to the father, for which, there is no denial, therefore, the property should automatically devolve upon the mother and thereafter to the defendant by virtue of succession. There can always be an exclusion by the Mother in the Will. The Mother has got a valid estate and executing capacity to execute the Will, which cannot be questioned. Further, when the Will has been admitted to be executed, the burden of proof shifts to the respondent/plaintiff in regard to the cancellation and therefore, once the execution of the Will is admitted coupled with the evidence of the attesting witnesses as well as the scribe, it is for the plaintiff/respondent to prove the cancellation of the Will. It is further stated that item No.11 in the suit property was purchased by