IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 18..08..2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.579 of 1994 1. G.K.Palani Gounder @ Mani 2. G.K.Kaliannan .. Appellants/Defendants 5 & 6 Vs. 1. Kanakambal (died) 2. Kaliammal 3. Krishnaveni 4. Akilandeeswari 5. K.M.Palanisamy 6. G.P.Sivakumar 7. G.P.Senthilkumar 8. G.K.Arumugam @ Selvaraj 9. Ambiga Devi 10.N.N.Murugaian 11.Devaki 12.K.C.Kaliannan 13.K.C.Venkatraji 14.Jayammal 15.K.C.Sridhar .. Respondents/Defendants 1- 3, 7 to 13 and LRs of Plaintiff (R11-15) RR11 to 15 brought on record as L.Rs of the deceased first respondent vide order of Court dated 25.06.2008 made in C.M.P.No.3446 of 2007 Appeal filed under Section 96 of CPC against the judgment and decree dated 24.01.1994 passed in O.S.No.193 of 1988 on the file of the learned Subordinate Judge Gobichettipalayam. For Appellants : Mr.R.T.Doraisamy For Respondents : Mr.B.Raveendran for R4 Mr.P.Pandi for RR11 to 15 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal is focussed as against the judgment and decree dated 24.01.1994 passed in O.S.No.193 of 1998 on the file of the learned Subordinate Judge, Gobichettipalayam, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Succinctly and precisely, pithily and tersely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: a) The deceased G.K.Kalianna Gounder and his wife Velayammal D4 herein (who died during the pendency of the suit) gave birth to four sons, viz., D5, D6, D10 and the deceased Pongaianna Gounder, the father of D8 and D9 herein and four daughters viz., the plaintiff herein and D1 to D3. The suit properties described in the schedule of the plaint originally belonged to the said deceased G.K.Kalianna Gounder. The item No.2 of the suit properties, which is a house was purchased by the deceased Kalianna Gounder in the name of his wife Velayammal (D4) and as such D4 was not the owner of the second item of the suit properties. However, G.K.Kalianna Gounder and Velayammal desired to bequeath both the items of the suit properties in favour of their daughters, viz., the plaintiff and defendants 1 to 3; whereupon, they jointly executed a Registered Will dated 02.03.1977 in favour of their daughters the plaintiff and D1 to D3 to take the suit properties equally; the said G.K.Kalianna Gounder died 10 years anterior to the filing of the suit. Thereupon the beneficiaries under the Will became the owners of the suit properties and they allowed D4 to retain the second item of the suit properties wherein D3 and D4 are residing. D5 and D6 being the sons of D4 were keeping her under their control and she became weak in intellect; she sustained fracture of her hip bone; she was suffering from forgetfulness and lapse of memory and she was also bed-ridden. D5 and D6 taking undue advantage of her physical and intellectual weakness brought about a Will dated 02.03.1977 as though she executed it, bequeathing the suit properties in their favour. D4 did not execute the said Will voluntarily and while she was in a sound state of mind. b) They also brought about a mortgage deed dated 08.08.1988 as though she executed it in favour of D7 concerning the suit property for a sum of Rs.50,000/-. She had no necessity at all to borrow such a sum of Rs.50,000/- and she had no right to execute such a Will in favour of D5 and D6. During the pendency of the suit, D4 is purported to have sold 10 cents of land in item No.1 of the suit properties to D12 as per sale deed dated 12.10.1988 and it was not supported by any consideration. During the pendency of the suit, D4 died on 11.03.1991 leaving behind her legal heirs, who were already parties in the suit and defendants 8 to 11 also were added as her legal heirs. https://hcservices.ecourts.gov.in/hcservices/ 3. Remonstrating and gainsaying, D4 during her life time filed the written statement with the averments, the pith and marrow of them would run thus: D4 was not aware of the fact as to whom the item No.1 actually belonged; but, her husband proclaimed that he had right over it to execute the Will. Item No.2 of the suit properties was purchased by D4 from out of her own funds and it did not belong to her husband. Since D4 happened to be the owner of the second item of the suit properties, she executed Ex.A3 Will dated 02.03.1977 along with her husband G.K.Kalianna Gounder. Subsequently, the testators got highly dissatisfied with his daughters and wanted to cancel his earlier Will Ex.A3 and intended to bequeath the suit properties to his sons. The said Will Ex.A3 was not intended to be acted upon. D3 was not in occupation of the item No.2 of the suit properties. Even though D4 sustained fracture, nonetheless, she was not suffering from mental weakness. Ex.B8 was executed by her voluntarily while she was in a sound disposing state of mind and that she cancelled the earlier Will, Ex.A3. The mortgage deed dated 08.08.1988 was executed by her in favour of D7 for valid consideration. Accordingly, she prayed for the dismissal of the suit. 4. Remonstrating and impugning, the averments/allegations in the plaint, D5 filed the written statement, which was adopted by D6. By virtue of the Partition Deed dated 10.02.1960, the first item of the suit properties and other properties were divided among the co- sharers and the properties referred to in the B and C schedules of such Partition Deed were allotted to D5 and his brother Pongianna Gounder. The item No.1 of the suit properties, therefore, belongs to this defendant and his brother deceased Pongianna Gounder, the father of D8 and D9. As such, the deceased G.K.Kalianna Gounder had no right to Will away the first item of the suit properties. The second item of the suit properties belonged to D4 as she purchased from out of her exclusive funds. G.K.Kalianna Gounder did not execute Ex.A3 the Will out of his free Will and he had no right to execute the Will in respect of the first item of the suit properties. D4 in a sound and disposing state of mind executed her last Registered Will Ex.B8 dated 21.07.1988 superceding the earlier Will,Ex.A3. The mortgage executed by her in favour of D7 is valid. Accordingly, he prayed for the dismissal of the suit. 5. D10 filed the written statement, setting out various averments, the warp and woof of them would run thus: https://hcservices.ecourts.gov.in/hcservices/ Ex.B8, the Will dated 21.07.1988 was not executed by D4 out of her own free will and volition and she did not execute the said mortgage deed in favour of D7 voluntarily for valuable consideration. One "Nell Veedu", which is not the suit property herein and which happens to be the co-parcenery property, was included in Ex.B8 and that would vitiate the entire Will. The recitals in the Will Ex.B8 would indicate that the Will was not executed out of her free Will. Accordingly, he prayed for the dismissal of the suit. 6. D12 adopted the written statement filed by D4. 7. The plaintiff filed the reply statement, denying and refuting the allegations in the written statement filed by the contending defendants as under: The deceased G.K.Kalianna Gounder during his life time and thereafter following him the defendants 1 to 3, have been in possession and enjoyment of the first item of the suit properties openly, continuously, peacefully without any interruption for over 20 years in their capacity as their owners and thereby they perfected their title over it by adverse possession. Ex.B8, the Will and the Mortgage deed were all cooked up documents. Accordingly, she prayed for decreeing the suit. 8. The trial Court framed the relevant issues. During trial, the plaintiff examined herself as PW1 along with P.Ws.2 and 3 and Exs.A1 to A19 were marked. On the side of the defendants D.Ws.1 to 3 were examined and Ex.B1 to Ex.B9 were marked. Ultimately the trial Court decreed the suit allotting ¼ th share in favour of the plaintiff in the suit properties. 9. Being dissatisfied with and aggrieved by the judgment and decree of the trial Court, the defendants 5 and 6 have filed this appeal on the following grounds among others: (i) The judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case. (ii) The partition deed dated 10.02.1960 had put an end to the joint status of the co-parcenery but the trial Court failed to take note of it. After such partition deed, G.K.Kalianna Gounder had no right over the first item of the suit properties and he could not have validly executed Ex.A3, the Will in respect of the first item of the suit properties. https://hcservices.ecourts.gov.in/hcservices/ (iii) The trial Court erroneously held that the said Ex.A3 Will dated 02.03.1977 as a genuine and valid one. (iv) After holding that the family arrangement as pleaded by the plaintiff was not tenable as per law, the trial Court simply accepted erroneously the plea of adverse possession as pleaded by the plaintiff and decreed the suit. In the plaint, no plea of adverse possession was pleaded but subsequently, in the reply filed by the plaintiff, she raised such a plea and no issue was framed relating to adverse possession; nonetheless the trial Court decreed the suit, accepting the plea of adverse possession. (v) The issues 2 and 8 have not been discussed and decided properly by the trial Court. (vi) The trial Court wrongly held that the shares already partitioned in the year 1960 were allotted to G.K.Arumugam during the year 1968. (vii) The fifth defendant deposed that he did not know whether the first item of the suit properties was allotted to G.K.Kalianna Gounder in the year 1968 during the alleged family arrangement. But, on the other hand, he specifically contended that it was not allotted to his father. (viii) The trial Court after giving a finding that the second item of the suit properties was the separate property of D4, erred in holding that the daughters, viz., the plaintiff and defendants 1 to 3 are entitled to shares as per the joint Will dated 02.03.1977. (ix) The trial Court ignoring the written statement filed by D4 herself that she executed validly Ex.B8 in cancelling Ex.A3, decreed the suit. Accordingly, the appellants prayed for setting aside the judgment and decree of the trial Court and forthe dismissal of the original suit. 10. The points for consideration are as to:- 1. Whether the partition deed Ex.A9 dated 10.02.1960 was valid and acted upon or whether it was superceded or modified by family arrangement during the year 1968? 2. Whether G.K.Kalianna Gounder was the owner of the first item of the suit properties as on the date of emergence of Ex.A3? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether D4 was the absolute owner of the second item of the suit properties as on the date of the emergence of Ex.A3 Will and whether G.K.Kalianna Gounder and D4 are proved to have validly executed Ex.A3? 4. Whether Ex.A3 is a valid joint Will and if so, whether after the death of one of the testators G.K.Kalianna Gounder,his wife D4 alone the one other testator had the right to revoke the Will? 5. Whether Ex.B8 is a genuine Will and whether it was proved in accordance with law? 6. Whether the mortgage deed dated 08.08.1988 was executed voluntarily by D4 in favour of D7 for valid consideration? 7. Whether the plea of adverse possession as upheld by the trial Court is tenable? 8. Whether there is any infirmity in the judgment and decree of the trial Court? 11. Heard the learned counsel appearing on either side. Point Nos.1, 2 and 3:- 12. These points are taken together for discussion as they are inter-linked and inter-woven with each other. 13. The learned counsel for the appellants/defendants 5 and 6 would advance his argument to the effect that Ex.A9, the Registered Partition Deed dated 10.02.1960 is a valid document, which was acted upon and there was nothing to indicate that it was revoked or any re- union deed emerged among the co-sharers quite antethetical to whatever envisaged in Ex.A9, as per which, the first item of the suit properties admeasuring 1 acre and 62 cents of agricultural lands was allotted to D5, the eldest son and to his one other son Pongianna Gounder, who died in the year 1975; the said G.K.Kalianna Gounder died during the year 1978 and in such a case, there is no rhyme or reason on the part of the plaintiff and some of the descendants of G.K.Kalianna Gounder in supporting the cause of the plaintiff that Kalianna Gounder and his wife D4 executed the Will Ex.A3 bequeathing the first and second item of the suit properties in favour of the plaintiff and others; and the second item of the suit properties happened to be the exclusive property of D4, who executed Ex.B8, the Will revoking the earlier Will Ex.A3 and bequeathing the first and second item of the suit properties in favour of D5 and D6. https://hcservices.ecourts.gov.in/hcservices/ 14. Per contra, the learned counsel for the respondent/plaintiff would put forth his argument that during the year 1968, there emerged a family arrangement under which the family properties were allotted to the various sharers and in that process G.K.Kalianna Gounder came into possession of the first item of the suit properties relating to his exclusive share; whereupon he and his wife D4 realising and understanding, considering and viewing that their daughters were not given any property, did choose to execute Ex.A3, the Registered Will dated 02.03.1977 bequeathing the first and second item of the suit properties in favour of them and however, surprisingly, after the death of Kalianna Gounder, D5 and D6 managed to bring about Ex.B8, the Will as though D4 executed it, revoking the earlier Will Ex.A3 in toto and bequeathing the items 1 and 2 of the suit properties in favour of D5 and D6. 15. At this juncture, it is worthwhile to highlight that the contesting parties are not at variance or at logger heads or at daggers drawn relating to one point that the second item of the suit properties originally happened to be the absolute property of D4. 16. The pertinent question arises as to whether the first item of the suit properties, which was obviously and apparently allotted as per Ex.A9 to the share of D5 and the deceased Pongianna Gounder, the father of D8 and D9, could be taken as the absolute property of G.K.Kalianna Gounder at the time of executing Ex.A3, the Will. 17. The learned counsel for the appellants/defendants 5 and 6 would contend that the trial Court fell into error in simply assuming and presuming as though there had been a family arrangement among the co-sharers in the year 1968 even though no document was exhibited on their side; as against the terms and conditions of Ex.A9 the registered document, no party should be heard to contend anything quite antethetical to such terms and conditions. 18. Per contra, by way of remonstrating and tarpedoing such an argument, the learned counsel for the respondents/plaintiff would convincingly argue that the circumstances, which emerged subsequent to the execution of Ex.A9, the Partition Deed should be taken into consideration and if done so, it would exemplify and demonstrate without any doubt that the terms and conditions in Ex.A9 got varied and modified by subsequent family arrangement even though precisely no document was placed before the Court. He would draw the attention of this Court to the deposition of D.W.2 (D5) and advance his argument that D5 himself candidly and categorically made a supine admission that it was he who identified the testators before the Sub Registrar at the time of registering Ex.A3 the Will, which indubitably and incontrovertibly evidences that the testators bequeathed the first item of the suit properties, which was purportedly allotted to the share of D5 and https://hcservices.ecourts.gov.in/hcservices/ Pongianna Gounder under Ex.A9. He would also develop his argument that such conduct on the part of D5 would unambiguously spotlight the fact that D5 had no objection for his parents in bequeathing the said first item of the suit properties in favour of the daughters of the testators and that in such a case, he should not be allowed to veer round and take pleas quite antethetical to what he committed himself by identifying the testators before the Sub Registrar at the time of registering the Will Ex.A3. 19. There is considerable force in the submission made by the learned counsel for the plaintiff as in the family, next to G.K.Kalianna Gounder, D5 happened to be the eldest male member and he cannot be heard to contend that he was not aware of the contents of Ex.A3, the Will. At this context, my mind is redolent with the famous legal adage that preponderance of probabilities would govern the adjudication in civil cases. The Court cannot turn its face away from reality and robust common sense would warrant that eldest male member like D5 in a family after signing as identifying witness to the Will of his parents, should not be allowed to turn turtle and have a volte face and contend as though he simply identified the testators and that he did not know about the purpose for which the Will was executed. Appropriately and appositely, the learned counsel for the plaintiff would succinctly put forth the point that as per D5, he happened to be the owner of the first item of the suit properties along with Pongianna Gounder and in such a case, he cannot be heard to contend that he signed as identifying witness in the Will without knowing the contents even though as per the very Will, his alleged property was being bequeathed to his sisters. The Court cannot turn its face away from reality but cutting across technicalities, should view and visualise the actual happenings and occurrences, which emerged in the family. Even though the plaintiffs might not be in a position to demonstrate and exemplify that there took place a family arrangement in the year 1968, nonetheless the very emergence of Ex.A3 with the assistance of D5 would speak volumes that there took place some re-arrangement of properties in the family, in owning and enjoying the properties of the family and in that process Kalianna Gounder was entrusted with the absolute right and enjoyment over the first item of the suit properties. 20. The provability and demonstrability of the genuineness of Ex.A3 and that Kalianna Gounder happened to possess absolute right to alienate over the first item of the suit properties, is found reflected in the admission of D5 in his deposition that it was he who identified the testators in Ex.A3 the Will under which, the first and second item of the suit properties were bequeathed in favour of the testators' daughters. 21. The nub of the plea of the plaintiff that the first item of the suit properties was under the ownership and enjoyment of Kalianna Gounder despite Ex.A9 Partition Deed dated 10.02.1960, could find https://hcservices.ecourts.gov.in/hcservices/ support from Exs.A11 to A17, the Adangal extracts relating to fasli years 1380 to 1391, which would evince and evidence that relating to the first item of the suit properties in the Adangal the name of G.K.Kalianna Gounder alone is found specified and not the name of either D5 or Pongianna Gounder. In fact the sons of Pongianna Gounder, viz., D8 and D9 would not lay claim over the first item of the suit properties even though as per the recitals found in Ex.A9, the Partition Deed, their father was described as one of the owners of it. Had really that much portion of Ex.A9 was acted upon relating to the first item of the suit properties, then D8 and D9 being the owners of part of the first item would not have kept quiet. As such, this is also an additional factor in support of the contention of the plaintiff that there had been some family arrangement under which, G.K.Kalianna Gounder was conferred with the right of ownership and enjoyment over the first item of the suit properties. In fact, D8 and D9 remained ex parte. However, D9 was examined as PW3, who in his deposition without minching words would ex- fatiate that the first item of the suit properties had never been under the enjoyment by either Pongianna Gounder or his sons including DW3; G.K.Kalianna Gounder alone enjoyed it and executed the Will bequeathing the first item in favour of his daughters; consequent upon the death of G.K.Kalianna Gounder during the year 1978, his beneficiaries under the Will, ie., the plaintiff and her sisters started enjoying the properties as per the Will; during the partition, which emerged on 23.03.1978 as per Ex.B10, certain items of properties were partitioned between D5 on the one side and the legal heirs of Pongianna Gounder on the other side and in that the first item of the suit property was not referred to as one among the properties. 22. D5 as DW2, would try to expound and explain away unsuccessfully and unsatisfactorily, the fact of no steps having taken to effect mutation in the revenue records relating to the first item of the suit properties by pointing out as though the land was lying fallow. He has not given any reason as to why he allowed the land to lie fallow for such long number of years. It is therefore, amounting to candid admission on his part that he did not cultivate the first item of the suit property by taking possession under Ex.A9. In fact, during cross examination, DW2 (D5) would admit that during the year 1968, there was an attempt to effect re-shuffling in the shares allotted under Ex.A9 and that it did not fructify. However, his subsequent conduct in participating in one way or other in the execution of Ex.A3, the Will by the testators, would expose that he agreed for such bequeathal of the first item of the suit properties by his father in favour of his daughters. 23. Glaringly and apparently, it is evident from the deposition of DW3 (D10) coupled with the other factors discussed supra, that as on the date of emergence of Ex.A3 the Will, it was Kalianna Gounder, who had been in possession and enjoyment of the first item of the suit properties as absolute owner having the capacity to will away as per https://hcservices.ecourts.gov.in/hcservices/ Ex.A3. It is too late in the day on the part of D5 to resile from his earlier commitment, to wit his consent to Ex.A3 and contend otherwise. 24. The learned counsel for the appellants would contend that once there is a registered Partition Deed, in the form of Ex.A9, the question of varying the terms and conditions of such a Partition Deed would not arise and even for argument sake, it is taken that D5 identified the testators of Ex.A3, the Will before the Registrar, nonetheless his valuable right relating to a part of the first item of the suit properties cannot be taken as one eroded by his conduct unless there is one other registered deed superceding the terms and conditions as contained in Ex.A9. Such an argument cannot be countenanced for the reasons infra. The partition deed is on a different footing than any other deed. In a partition deed, there is no transfer inter-vivos involved. It is declaratory and not transitory in nature. 25. It is a common or garden principle that a family arrangement could be oral and there could be no quarrel over such a proposition. The pertinent question arises as to whether after a registered partition deed, there could be oral family arrangement in adjusting certain items already allotted under the registered deed. In my considered opinion, there is no illegality and impropriety on the part of the co-sharers who were parties to the