IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2010 CORAM: THE HONOURABLE MS.JUSTICE R. MALA S.A.NO.246 of 2002 1. G.Raghuraman(died) 2. Vanaja 3. S.R.Surender 4. B.Sucharitha (Appellants 2 to 4 brought on record as L.Rs. Of the deceased sole appellant i.e. first appellant, vide order of Court dated 5.6.2007 made in C.M.P.No.999 of 2007) .. Appellants/Ist Defendant Vs. 1. Jegannatha Naidu .. Respondent/Plaintiff 2. Rajendran 3. Venkat .. Respondents/2nd & 3rd Defendants Second Appeal filed under section 100 of CPC against the judgment and decree dated 27.9.2001 made in A.S.No.7 of 2001 on the file of the Subordinate Judge's Court, Mathuranthagam, against the judgment and decree, dated 27.11.2000 made in O.S.No.557 of 1993 on the file of the District Munsif Court, Mathuranthagam. For appellants : Mr.K.Chandrasekaran For respondent-1 : Mr.R.Balakrishnan For respondents 2 & 3 : No appearance JUDGMENT The Second Appeal arises out of the judgment and decree, dated 27.9.2001 made in A.S.No.7 of 2001 on the file of the Subordinate Judge's Court, Mathuranthagam, reversing the judgment and decree, dated 27.11.2000 made in O.S.No.557 of 1993 on the file of the District Munsif Court, Mathuranthagam. 2. The averments made in the plaint are as follows: (a) The first respondent/plaintiff is the absolute and exclusive owners of the suit properties. He got the same under a registered Will executed by one Chengappa Naidu on 4.10.1938. The suit properties were acquired by Chengappa Naidu under a Sale Deed, dated 19.12.1944 and also from Lakshmi Ammal as legal heir. Chengappa Naidu https://hcservices.ecourts.gov.in/hcservices/ was in possession and enjoyment of the same till his death in the year 1958. Thereafter, the first respondent/plaintiff is in possession and enjoyment. Patta has been transferred in his name and also he has been paying the kist. He dug up two Wells and also put up electric motor pump-set. The service connections stands in the name of the first respondent/plaintiff. He also dealt with the properties by way of mortgaging the same in 1972 with the Land Development Bank, Chithamoor and in 1993, he has also mortgaged with L.D.Bank, Madurantakam, to purchase a Tractor. The defendants are well aware of the same. (b) It is stated by the first respondent/plaintiff that the defendants have no manner of right, title or interest over the suit properties. The first respondent/plaintiff is not claiming any interest over the properties of his natural father. Only the defendants are in possession of the said properties and they divided the same. The defendants were not in good terms with the plaintiff and were pressurising the Plaintiff to give share in the suit properties, but they are not entitled to share. (c) Since the plaintiff refused to give his share, the defendants attempted to trespass into the suit properties and were also interfering with his possession, and hence, the plaintiff is constrained to file the suit for declaration of title to the suit properties and also for consequential permanent injunction restraining the defendants, their men and agents from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and also for payment of costs. 3. The gist and essence of the written statement filed by the first defendant, adopted by defendants 2 and 3, are as follows:- (a) The first defendant is the own younger brother of the plaintiff. One Munusamy Naidu is the grand-father of the plaintiff. Munusamy Naidu had five sons and the last son is Gopalsamy Naidu. The said Gopalswamy Naidu had three sons. The elder son is Kamalanathan, who died in or about 1982 leaving behind his widow Banumathi and two sons, viz., Rajendran and Venkat, i.e., the defendants 2 and 3. The third son of Gopalasamy Naidu is Raguraman, who is the first defendant. Even during the life time of Kamalanathan, the estates were orally divided between the brothers. The plaintiff never enjoyed, nor owned the suit properties, much less as exclusive owner. The properties were divided in or about 1980 and at no point of time, the plaintiff has retained any separate property, much less as the adopted son. The entire estates are pooled together and division was made and the same was acted upon and came into force. Lot of improvements were made. (b) The properties were also alienated and only out of such sale proceeds, the improvements were made. Most of the estates were allotted to the first defendant and sold out and out of such sale proceeds, the suit properties were improved. Only a negligible portion was alienated to the share allotted to the plaintiff. The division was made regarding all the properties, including the properties covered under the suit Will. Such division was made in open and to the knowledge of entire villagers, which was acted upon and came into https://hcservices.ecourts.gov.in/hcservices/ force. The first defendant has incurred huge debts to dig a Well and laid pipelines in those lands and also a part of the Will property. The first defendant has taken such a Will in or about 1982. The motor pump-sets were also installed by the first defendant out of his own funds. It is stated by the first defendant that he has got the records for the same. Since the patta was in the name of the plaintiff, the service connection also was obtained in his name. The plaintiff never enjoyed the suit service connection, nor the suit Well. The alleged trespass is only a myth. (c) Since the plaintiff has not come out with clean hands and suppressed the real facts, he is not entitled to any relief prayed for. The plaintiff has to prove the Will. There is no cause of action for the filing of the suit. The suit is also bad for non-joinder of necessary parties such as Banumathi and others. Even on the ground of equity and since the balance of convenience is in favour of the defendants, the suit is liable to be dismissed. 4. The trial Court, after considering the averments made both in the plaint and in the written statement, framed necessary issues for consideration. After perusing the oral and documentary evidence of P.Ws.1 and 2 and Exs.A.1 to A.47 and D.W.1 to D.W.3 and Exs.B.1 to B.31, dismissed the suit. Aggrieved by the judgment and decree of the trial court, the then plaintiff (deceased) preferred First Appeal in A.S.No.7 of 2001 on the file of the Subordinate Judge's Court, Mathuranthagam. The first appellate Court, after considering the arguments advanced by counsel on both sides, framed necessary points for determination and after considering the additional evidence adduced in Exs.A-48 to 56 and Exs.B-32 to 34 and Exs.C-1 to C-7, which were marked based on the orders passed in the respective interlocutory applications, allowed the First Appeal and decreed the suit as prayed for in the plaint. Aggrieved by the same, the present Second Appeal has been preferred by the first defendant/first appellant, since deceased, and his legal heirs were brought on record before this Court as appellants 2 to 4. 5. At the time of admission of the above Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether the first appellate court is correct in interpreting the Document Ex.A.1 as Will? (ii) Whether the lower appellate court is right in decreeing the suit on the strength of Ex.A.1? and (iii) Whether the lower appellate court is right in coming to the conclusion that the plaintiff is the adopted son of Chengappa Naidu?" 6. Learned counsel for the appellants/legal heirs of the deceased first defendant, would contend that the deceased first defendant is none other than the brother of the first respondent/plaintiff and they are the sons of Gopalsamy Naidu, who had three sons, namely, the first respondent-plaintiff Jagannatha Naidu, https://hcservices.ecourts.gov.in/hcservices/ the deceased first appellant-first defendant Raghuraman and one Kamalanathan, who died intestate leaving behind his wife Banumathi and two children, who are defendants 2 and 3, namely Rajendran and Venkat. The first respondent-plaintiff is claiming his title on the basis of Ex.A-1 alleged Will/adoption deed. It is stated by the learned counsel for the appellants that Ex.A-1 is neither the gift deed/adoption deed, nor the Will and to prove the same, the attestor has not been examined before the Court. In the evidence alone, the first respondent-plaintiff pleaded that he is the adopted son of Chengappa Naidu. Learned counsel for the appellants further submitted that the first appellate Court committed error in invoking Section 90 of the Indian Evidence Act in respect of the proof of Ex.A-1 and to substantiate the same, learned counsel for the appellants relied upon the Apex Court judgments, to the effect that even if the Will is 30 years old, the concept of Section 90 of the Indian Evidence Act will not be applicable and the plaintiff ought to have proved the Will in accordance with Section 68 of the Indian Evidence Act or Section 63 of the Indian Succession Act, and to prove the adoption, the first respondent/plaintiff has not examined any one. It is the further contention of the learned counsel for the appellants that the first respondent-plaintiff never pleaded his adoption and only one statement has been mentioned in the plaint that "he was not claiming any property from his natural father". Learned counsel for the appellants culled out some portions of the judgment of the first appellate Court and prayed for setting aside the same. 7. The respondents have all been served, but there is no personal appearance or through counsel for respondents 2 and 3 (defendants 2 and 3). 8. Learned counsel for the first respondent/plaintiff contended that Ex.A-1 is the Will as held by both the Courts below, and even though the nomenclature has been stated to be adoption deed, the recital is a matter to be considered, instead of the nomenclature and to substantiate this argument, he relied on the decision of the Supreme Court reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapathi Hymavathi). He further contended that Ex.A-1 is not a Will and it is only an adoption-cum-settlement deed and after the death of the adoptive father of the first respondent-plaintiff, the first respondent-plaintiff alone is entitled to the properties after attaining majority and though the trial Court dismissed the suit, the first appellate Court considered the same and came to the correct conclusion that the first respondent-plaintiff is the adopted son of Chengappa Naidu, even though the plaintiff is the natural son of Gopalsamy Naidu, and the plaintiff inherited the properties of the said Chengappa Naidu as a legatee/beneficiary under Ex.A-1, and therefore, the first appellate Court has considered this aspect in proper perspective and decreed the suit, and hence, learned counsel for the first respondent-plaintiff prayed for dismissing the Second Appeal, by confirming the judgment and decree of the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/ 9. The suit properties belong to Chengappa Naidu and one Lakshmi Ammal. The genealogy between the parties, is indicated below: Genealogy I: Munusamy Naidu | (5 sons) -------------------------------------------------------------------------------- | | | | | Gopalsamy Naidu Appaji Veersamy Naidu Narayanasamy Naidu DuraisamyNaidu | | (died) | 2sons | | ------------------- = | | Janaki (wife) Padmanabhan Devaraj | |(3 sons) |-------------|---------------------| Jagannatha Raghuraman Kamalanathan (died) Naidu | (plaintiff) (D1) |= wife Banumathi | (2 sons) |--------------------------| Rajendran (D2) Venkat (D3) -------------------------------------------------------------------------------- Genealogy II: Veerasamy Naidu | 2 sons | |------------------------------------| | | Chengappa Naidu Narayanasamay Naidu | | ------------------------------- | = wife | | Lakshmi Ammal Jagannatha Naidu Janaki (adopted son)/plaintiff (daughter) | = husband Gopalsamy Naidu | 3 sons |------------ -|---------------------| Jagannatha Raghuraman Kamalanathan (died) Naidu | (plaintiff) (D1) |= wife (natural son) Banumathi | (2 sons) |--------------------------| Rajendran (D2) Venkat (D3) 10. Admittedly, the suit properties belong to Chengappa Naidu and Lakshmi Ammal. Lakshmi Ammal's husband Narayanasamy Naidu, pre- deceased her and they had no children. Chengappa Naidu's wife also pre- https://hcservices.ecourts.gov.in/hcservices/ deceased him and they also had no children. As per the version of the first respondent-plaintiff, Chengappa Naidu adopted the first respondent-plaintiff Jagannatha Naidu as his son, i.e. adopted son and that has been evidenced by Ex.A-1. It is pertinent to note that Munusamy Naidu is having properties and that had been divided among the brothers, who are the sons of Munusamy Naidu, i.e. Gopalsamy Naidu and his brothers. Now, the dispute is not in respect of the properties of Gopalsamy Naidu, son of Munusamy Naidu, but the dispute is only in respect of the properties of Chengappa Naidu, the adoptive father of the first respondent-plaintiff. 11. The first appellate Court has considered has considered Ex.A-1 as a Will. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the first respondent-plaintiff that even though the first appellate Court has come to the conclusion that Ex.A-1 is a Will, the nomenclature of the document Ex.A-1 is immaterial, but the contents of the same is only necessary to decide the nature of the document and in support of this contention, learned counsel for the first respondent-plaintiff relied on the decision of the Supreme Court reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapati Hymavathi). In this regard, it is appropriate to notice Ex.A-1, in which it is stated that, @///br';fk eha[L vGjpitj;j !; tPfhug; gj;jpuk; vd;dbtd;why;//.//@/ So, according to the learned counsel for the first respondent/plaintiff, the nomenclature of Ex.A-1 is only in the form of adoption deed. But while perusing the contents of Ex.A-1, it is seen that it is not an adoption deed, because the natural parents of the adopted son, are not signatories to it. While perusing Ex.A-1 in entirety, it is further seen that the disposition of the properties had been mentioned. In Ex.A-1, it is further stated that the Chengappa Naidu has taken in adoption a child aged about 4 years, namely Jagannatha Naidu (first respondent/plaintiff), being the son of his natural father (Gopalsamy Naidu), in the presence of the relatives and friends as per the Hindu Law. The second part of the document Ex.A-1 states that all the properties belonging to Chengappa Naidu, are gifted to the adopted son/the first respondent/plaintiff, who was the minor and the said Chengappa Naidu, i.e. the executant himself, was to act as a guardian to the minor plaintiff and enjoy the properties on behalf of the adopted son/first respondent/plaintiff. In the other Clause of Ex.A-1, it is stated that if anything happens to Chengappa Naidu, the adopted son's mother, being the daughter of the adoptive father, namely Janaki Ammal shall act as a guardian for the minor plaintiff and maintain the minor till he attains majority and after the minor attains majority, he is having every right to deal with the properties. The said Chengappa Naidu has given absolute right in the properties to the first respondent-plaintiff under Ex.A-1. Even one other Clause in Ex.A- 1 mentions that if anything happens to the adopted son, the remaining grand-son through his daughter Janaki Ammal, namely Kamalanathan and the children born to Janaki Ammal, subsequently will take the properties equally. https://hcservices.ecourts.gov.in/hcservices/ 12. The trial Court dismissed the suit stating that the first respondent/plaintiff has not proved that he is the adopted son of Chengappa Naidu and he is the owner of the properties. The first appellate Court considered Ex.A-1 as a Will and decreed the suit as prayed for, by allowing the First Appeal and setting aside the judgment and decree of the trial Court. In such circumstances, it is the duty of this Court to consider as to whether the document Ex.A-1 is a Will or adoption-cum-settlement/gift deed. 13. On a perusal of Ex.A-1, it is seen that the contents of the same are styled as an adoption-cum-settlement deed. In the earlier paragraph of Ex.A-1, it is stated that the adoption has taken place on the same day and on that day itself, the executant (Chengappa Naidu) executed the deed and stated therein that since the first respondent/plaintiff was a minor at the time of execution of Ex.A-1, Chengappa Naidu himself was to act as a guardian for the minor plaintiff Jagannatha Naidu, and to settle the properties to the first respondent/plaintiff. 14. Furthermore, learned counsel for the appellants/legal heirs of the deceased first defendant, submitted that even though the first appellate Court came to the conclusion that Ex.A-1 is a Will, it is to be noticed that the attestor of Ex.A-1 has not been examined before Court to prove the attestation and even though the document Ex.A-1 is dated 4.10.1938, the original of the same has not been filed in Court and only the registration copy of the same has been produced and it is not a 30-year old document. As per Section 90 of the Indian Evidence Act, no presumption can be invoked. To substantiate the same, learned counsel for the appellants/legal heirs of deceased D1, relied upon the decision of the Supreme Court reported in AIR 2009 SC 1766 = 2009 (3) SCC 687 (Bharpur Singh Vs. Shamsher Singh), in which, the Supreme Court observed as follows: "15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that (AIR p.451, para 19) one of the important features which distinguishes a Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. 16. In H.Venkatachala case (H.Venkatachala Iyengar Vs. B.N.Thimmajamma--AIR 1959 SC 443), it was also held https://hcservices.ecourts.gov.in/hcservices/ that the propounder of a Will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and (iii) if a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. ....." 15. Relying on the abovesaid decision reported in AIR 2009 SC 1766, learned counsel for the appellants submitted that it is the duty of the propounder to prove the Will in accordance with law and as per Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act, none of the attestors to Ex.A-1 had been examined. In such circumstances, learned counsel for the appellants contended that the first appellate Court committed an error in accepting that Ex.A-1 is a Will and is a true and genuine document. P.W.2 is one Veeraraghavan, and he is not an attestor to Ex.A-1 and he is only the son-in-law of the first respondent-plaintiff, and P.W.2 was only aged about 41 years at the time of his examination as a witness before Court and so,admittedly, no one has been examined to prove the alleged Will (Ex.A-1). 16. If the claim is made on the basis of the Will after a long time, the propounder should aver that the Will was acted upon, that the executor was in a sound and disposing state of mind and has duly attested and that it is the last Will and testament of the testator. 17. From Ex.A-51, it is seen that Kamalanathan and Raghuraman have given a statement on 5.8.1972 before the Manager of Chithamur Co- operative Land Development Bank that the properties in suit items 10, 13 and 14 and S.Nos.172/5 and 173/9 are the properties received by way of testamentary disposal, by stating that, @////nkw;fz;l brhj;ij & $fd;dhj eha[Lit mtUila jhj;jhthfpa br';fg;g eha[L vd;gth; jj;J vLj;jjpd; K:yk; fpilj;jjhFk;/ Mfnt & rh;nt vz;fspy; v';fSf;F ve;jtpj mf;Fghj;ija[k; fpilahJ/ Mfnt & fz;l brhj;ij <lhf itj;Jf; bfhz;L fld; bfhLg;gjpy; v';fSf;F ve;jtpjkhd Ml;nrgiza[k; fpilahJ////@, which means that they had no objection for granting loan by mortgaging the properties mentioned therein, since the properties mentioned therein have been inherited by the first respondent-plaintiff https://hcservices.ecourts.gov.in/hcservices/ Jagannatha Naidu, through his adoptive father Chengappa Naidu. This also shows that the deceased first defendant and Kamalanathan have accepted the adoption and they were not claiming any right over the properties specified in Ex.A-51. 18. At this juncture, it is appropriate to consider the written statement filed by the first defendant, and adopted by defendants 2 and 3, in which, in page 2, the first defendant stated that the properties were divided in or about 1980 and at no point of time, the plaintiff retained any separate property much less as the adopted son and the entire estates are pooled together and division was made and the same was acted upon and came into force. As already stated, in his oral evidence, D.W.1 (D1) stated that the properties were not divided. Further, it is clearly proved that the intention of the brothers of the plaintiff, is that they are not claiming any title over the properties and they were never in possession, which has falsified the defence raised by the first defendant in respect of the blending with the other properties. 19. It is also pertinent to note that while perusing the entire file, it shows that the loan had been discharged by the first respondent/plaintiff, as seen from the Discharge Certificate, dated 21.12.1992. In Ex.A-54, the statement made by Gopalsamy before the Manager of the Chithamur Co-operative Land Development Bank, it is stated by Gopalsamy Naidu, as follows: @vd;Dila ,uz;lhk; Fkhuuhd jpU/b$fehj eha[L vd;gth; 132 rpj;J} h; fpuhkj;jpy; cs;s rh;nt 165-5 5?16 brz;L epyj;ij <lhf fhz;gpj;J j';fs; t';fpapy; I.D.wh. jpl;lj;jpy; g[jpa fpzW nkhl;lhh; brl; th';f bc&l;L fl;l fld; nfhhp ,Ug;gJ vdf;F bjhpa[k;/ & epyk; kDjhuh; jfg;gdhUk; tPuhrhk;p eha[L Fkhuh; br';ifa;a eha[Lt[f;F re;jjp VJk; ,y;yhjjpdhy; & b$fehj eha [Lit !;tPfhu g[j;jpuuhf vLj;Jf; bfhz;L & epyKk;. ntW epy';fSk; 1938?y; vGjpitj;J mDgtpj;J tUfpd;whh;/ & epyj;Jf;Fk; vdf;Fk; ve;jptpjkhd ghj;jpaija[k;. chpika[k; fpilahJ vd;Wk; & epyj;ij j';fs; t';fpapy; <lhf itj;J bfhz;L fld; bfhLg;gjpy; vdf;F ve;jtpjkhd Ml;nrgiza[k; ,y;iy vd;W ,jd;K:yk; cWjp TWfpd;nwd;/@ 20. Thus, it shows that the properties were inherited by the first respondent-plaintiff through his adoptive father Chengappa Naidu and neither his natural father Gopalsamay Naidu nor his children, i.e. first defendant and Kamalanathan, are having any right, title or interest over the properties, which is evidenced by Exs.A-51 and 54 extracted supra. It also shows that the first respondent/plaintiff inherited the properties as heir of the adoptive father Chengappa Naidu and that factum of adoption has been recognised by the natural father and blood brothers, as evidenced from Exs.A-51 and 54 and the defendants are estopped from questioning the validity of Ex.A-1. https://hcservices.ecourts.gov.in/hcservices/ 21. Admittedly, the document Ex.A-1 is not a Will. At this juncture, it is appropriate to consider the decision relied on by the learned counsel for the first respondent-plaintiff, reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapati Hymavathi), wherein, it was held by the Supreme Court as follows: "The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgement thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the