Madras High Court

Mr.S.R.Rajagopal vs Mr.T.V.Ramanujam on 3 September, 2010

Author:
P.R.Shivakumar

Bench:
P.R.Shivakumar

?IN THE HIGH COURT OF JUDICATURE AT MADRAS
%DATED: 03/09/2010
*CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
+TOS.40 of 1994
#M.R.Ramamurthy
$Radha
!FOR PETITIONER : Mr.S.R.Rajagopal
^FOR RESPONDENT : Mr.T.V.Ramanujam
:ORDER

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.09.2010

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

T.O.S.No.40 of 1994
and
C.S.No.673 of 1987

T.O.S.No.40 of 1994
1.M.R.Ramamurthy (Deceased)
2.M.R.Srinivasan (Deceased)
3.R.Malathi
4.R.Giridhar
5.M.Prema Rao
6.S.Vijaya
7.Hema
8.S.Guruprasad
9.R.S.Ravi ... Plaintiffs

Vs.

1.Mrs.Radha (Deceased)
2.M.K.Padmanabhan (Deceased)
3.M.K.Raja Rao
4.M.K.Sridhar
5.Mrs.Vasantha
6.Mrs.Sandhya
7.Mrs.Rama Padmanabhan
8.Manasa Balaji
9.P.Krishnamoorthy
10.Smt.P.Vidya ... Defendants

Testamentary Original Suit filed under
Sections 222
and
of the Indian Succession Act, XXXIX of 1925 to prove the Will in solemn form and for grant of probate with Will annexed.

Plaintiffs : Mr.S.R.Rajagopal

Defendants : Mr.T.V.Ramanujam, Sr.Counsel
for Mr.A.Paramasivam
C.S.No.673 of 1987
1.Mrs.Radha (deceased)
2.M.K.Padmanabhan (decd)
3.M.K.Raja Rao
4.M.K.Sridhar
5.Mrs.Vasantha
6.Mrs.Sandhya
7.Mrs.Rama Padmanabhan
8.Mrs.P.Manese Balaji
9.P.Krishnamoorthy
10.Tmt.P.Vidya ... Plaintiffs

Vs.

1.M.R.Ramamoorthy (decd)
2.M.R.Srinivasan (decd)
3.R.Gridhar
4.M.Prema Rao
5.Vijaya
6.Hema
7.Guruprasad
8.Ravi ... Defendants

Civil Suit filed under Order IV Rule of Original Side Rules and
Order VII Rule 1 CPC
for a preliminary decree for partition, separate possession and mesne profits and for costs of the suit.

Plaintiffs : Mr.T.V.Ramanujam, Sr.Counsel
for Mr.A.Paramasivam

Defendants : Mr.S.R.Rajagopal

COMMON JUDGMENT

O.P.No.157 of 1991, which came to be converted into a Testamentary Original Suit T.O.S.No.40 of 1994 is one for the grant of probate of the Will allegedly executed by deceased M.Vittal Rao on 22.11.1955.

2. C.S.No.673 of 1987 is one for partition and separate possession of 1/3 share of the plaintiffs therein in the properties described in the plaint schedule and for mesne profits.

3. As the properties concerned in both the suits and the parties are one and the same, the suits were tried together and are now being disposed of by a common judgment.

4. T.O.S.No.40 of 1994

O.P.No.157/1991, which has been subsequently converted into T.O.S.No.40 of 1994 seeking probate of the Will dated 22.11.1955 left by Vittal Rao, was originally filed by M.R.Ramamoorthy and M.R.Srinivasan, who are plaintiffs 1 and 2 therein. The same was originally filed against the defendants 1 to 6, who have been arrayed as plaintiffs 1 to 6 in the connected civil suit. After the death of both the original plaintiffs, namely M.R.Ramamoorthy and M.R.Srinivasan, who are defendants 1 and 2 in the connected civil suit, their legal representatives were impleaded as plaintiffs 3 to 9 in the T.O.S. Except Malathy, who figured as the third plaintiff in the TOS, all other plaintiffs in the TOS figure as defendants in the connected suit.

i) The averments made in the plaint in T.O.S.No.40 of 1994 are as follows:-

The deceased Vittal Rao, who owned and possessed properties within the State of Tamil Nadu, executed a Will on 22.11.1955 and registered it as document No.21/1955 on the file of the Office of the Sub-Registrar, T.Nagar. Vittal Rao subsequently died on 19.11.1958 and hence his last Will and Testament dated 22.11.1955 became effective. In the said Will, Vittal Rao has appointed M.R.Ramamoorthy and M.R.Srinivasan, the original plaintiffs in TOS as executors. The Will was duly executed by Vittal Rao at Madras on 22.11.1955 in the presence of witnesses, whose names appear at the foot thereon. As late Krishnamurthy Rao was willing to abide by the terms of the Will, there arose no necessity for the plaintiffs to approach the court for the grant of probate of the said Will. Also on the death of Krishnamurthy Rao, the defendants continued to abide by the terms of the suit Will until 1986 and subsequently they set up a claim to the properties bequeathed under the Will and filed a suit, namely the connected suit C.S.No.673/1987, seeking partition of the properties covered by the Will. The plaintiffs in the TOS have also filed written statement in the said civil suit making averments relying on the Will. Under such circumstances, the plaintiffs have to approach this court seeking probate of the Will dated 22.11.1955. As none of the attesting witnesses would be traced, plaintiffs are not able to get their affidavits. The assets likely to come to the hands of the plaintiffs in the aggregate are worth Rs.5,150/- and after deducting all items which the plaintiffs are allowed to deduct, the value of the net assets shall be Rs.4,150/-. The plaintiffs in the TOS undertake to duly administer the property and credits of the testator Vittal Rao concerned in his Will and submit an inventory within six months from the date of grant of probate and also to render an account of the property and credit within a year from the said date. Therefore, the plaintiffs shall be permitted to prove the Will in solemn form and get probate of the Will with the Will annexed. The deceased had left behind him M.R.Krishnamurthy Rao, M.R.Ramamoorthy Rao and M.R.Srinivasan, all sons of Raja Rao, the brother of Vittal Rao entitled to claim to be non-testamentary legal heirs of the deceased in the absence or failure of the Will. The defnedants 1 to 6 are the wife and children of Krishnamurthy Rao, who died subsequently. Hence probate of the last Will dated 22.11.1955 left by Vittal Rao with Will annexed shall be granted in favour of the plaintiffs in the TOS.

ii) The first defendant died before filing any written statement. The main written statement was filed by the second defendant. The following are the contentions raised in the said written statement of D2:-

Vittal Rao died intestate and he did not execute any Will as propounded by the plaintiffs. The property itself stood in the name of Raja Rao, the brother of the alleged testator Vittal Rao and the original sale deed had always been with Raja Rao and is now in the hands of the defendnats in the TOS. The said Vittal Rao was very much aware of the fact that he was not the owner of the property and consequently he would not have chosen to execute the Will which is now sought to be projected by the plaintiffs as his last Will. It might have been obtained by the plaintiffs by exercising undue influence, fraud and coercion on Vittal Rao. The plaintiffs therefore are not entitled to the relief of Probate as sought for in the suit. Therefore the suit should be dismissed with cost.

iii) Defendants 3, 5 and 6 have jointly filed a written statement simply adopting the written statement of the second defendant. Defendant No.4 also filed a written statement similar to that of defendants 3, 5 and 6.

iv) In the light of the above said pleadings, the following issues have been framed:-

1) Whether the Will dated 22.11.1955 executed by M.Vittal Rao is true and valid?

2) Whether the plaintiffs are entitled to the relief as sought for?

5. C.S.No.673/1987

The plaintiffs 1 to 6 in C.S.No.673/1987 originally filed the said suit against the first and second defendants therein alone. Subsequently, during the pendency of the suit, Mrs.Radha, the first plaintiff died and the fact that her legal representatives were already there on record as plaintiffs 2 to 6, came to be recorded. Subsequently, M.K.Padmanabhan, the second plaintiff also died and the plaintiffs 7 to 10 have been impleaded as his legal representatives. Similarly, M.R.Ramamoorthy, the first defendant died and his legal representatives were brought on record as defendants 3 and 4. M.R.Srinivasan, the second defendant also died and his legal representatives have been brought on record as defendants 5 to 8.

i) The case of the plaintiffs in C.S.No.673/1987 is as follows:-

The suit property bearing door No.12, Raghavaiah Road, T.Nagar, Madras 600 017, was the property belonging to Raja Rao. The said property was purchased by the said Raja Rao in the year 1929. He had been in possession of the suit property and had also put up constructions thereon. Raja Rao died in the year 1948 leaving behind him his three sons, namely (1) M.Krsihnamurthy Rao, the husband of the first plaintiff and father of the plaintiffs 2 to 6, (2) M.R.Ramamoorthy, the first defendant and (3) M.R.Srinivasan, the second defendant. Raja Rao died intestate in the year 1948 and the said property being his self-acquired property, each one of his three sons became entitled to a common 1/3 share. Subsequently, Krishnamoorthy Rao, the eldest son of Raja Rao died intestate on 09.05.1968 leaving behind him the plaintiffs 1 to 6 as his legal heirs to succeed to his 1/3 share in the suit property. Till his death Krishnamoorthy Rao was in joint possession of the suit property and the relationship between the parties had been cordial. Subsequent to the death of Krishnamoorthy Rao, the plaintiffs started demanding partition of the suit property and the defendants were evading, which made it necessary for the plaintiffs to issue a lawyer's notice on 07.02.1986 calling upon the defendants to effect partition and deliver separate possession of their 1/3 share. However, the defendants through their advocate sent a reply dated 18.02.1986 setting up a Deed of Release dated 11.06.1955 allegedly executed by Krishnamurthy Rao, the father of the plaintiffs 2 to 6. The defendants had also put up a plea in the reply notice that the possession of the land purchased in the name of Raja Rao was given to his brother Vittal Rao; that the Vittal Rao was permitted to build the superstructure and that Vittal Rao had executed a Will dated 22.11.1955 under which the property was given to the defendants 1 and 2. The alleged Release Deed does not envisage any release of the rights of Krishnamurthy Rao, the father of the plaintiffs 2 to 6 in respect of the suit property. The other averments in the reply notice are false. The alleged Will of Vittal Rao cannot be true and in any event the property being one that belonged to Raja Rao, no right can be derived by the defendants 1 and 2 from the alleged Will of Vittal Rao. The original sale deed executed by Corporation of Madras in favour of Raja Rao is still with the plaintiffs. Vittal Rao, the brother of Raja Rao could not have claimed any exclusive right to the property except to be in management of the property as an elderly member of the family. He had no authority to execute a Will claiming him to be the owner of the suit property. Under such circumstances, the suit has been filed for the above said reliefs.

ii) Averments found in the written statement filed by the defendants 1 and 2 while they were alive, are as follows:-

Except the facts that are specifically admitted in the written statement, all other plaint allegations are denied and the plaintiffs are put to strict proof of the same. The claim of the plaintiffs for partition was denied by the defendants through their counsel's letter dated 18.02.1986 even prior to the filing of the suit. Therefore, the plaintiffs cannot be construed to be in possession of the suit property. The suit for partition is unsustainable and the court fee paid is insufficient. The suit property, namely the property bearing door No.12 (formerly 4 and old No.1A), Raghavaiah Road, T.Nagar, Madras 600 017, did not belong to Raja Rao at any time. On the other hand, it was the property of Vittal Rao, who purchased it benami in the name of his brother Raja Rao. Though the property was purchased in the name of Raja Rao, it was Vittal Rao, who constructed the building and was in possession and enjoyment of the same ever since the purchase. The said fact has been admitted by Krishnamurthy Rao, the father of plaintiffs 2 to 6 in the Release Deed dated 11.06.1955 registered as document No.42/1955 in the office of the Sub-Registrar, T.Nagar. Plaintiffs 2 to 4 were also parties to the said Release Deed. In view of the statement made by Krishnamurthy Rao in the Release Deed, the plaintiffs are estopped from making any claim in respect of the suit property. The correctness of the facts contained in the said document was not questioned at any point of time. The plaintiffs cannot claim any share in the suit property either by themselves or as legal heirs of Krishnamurthy Rao. Vittal Rao purchased the land in 1929 in the name of his brother Raja Rao and put up the construction in the year 1940. Ever since such construction he had been living in the said property until his death in 1958. He had allowed his brother Raja Rao and Krishnamurthy Rao to reside with him. In 1953 itself, Krishnamurthy Rao left the company of Vittal Rao and shifted his residence to No.2, Ramachandra Road, Thyagaraya Nagar, Madras. Then he moved from the said address to old door No.8C and new door No.11, Tilak Street in or about 1965 and in the said address itself Krishnamurthy Rao died. The plaintiffs were living with Krishnamurthy Rao in the said address till his death in 1968 and only in 1978-79 they shifted their residence to No.14, Thyagaraya Gramani Street, T.Nagar. About the year 1980-81, plaintiffs 2, 3, 5 and 6 fixed up their separate residence and the address furnished in the plaint is that of the fourth plaintiff with whom their mother, namely the first plaintiff lives. As the suit property belonged to Vittal Rao, he had every right to execute the Will and the Will is also a registered one. The last rites of Vittal Rao were performed by the defendants 1 and 2, which was not objected to by Krishnamurthy Rao since he was aware of the existence of the Will. The sale deed executed by the Corporation of Madras in the name of Raja Rao should have been stealthily removed when the plaintiffs went out of the suit property in 1953. The possession of such document shall not confer any title or interest in the property. Till his life time Vittal Rao was in possession and enjoyment of the suit property in his own exclusive right and after the death of Vittal Rao, defendants 1 and 2 came to possess and enjoy the property as their own property. In any event, since Vittal Rao was having adverse possession of the suit property from 1941 to till his death in 1958 and subsequently defendants 1 and 2 alone continued to be in absolute possession and enjoyment of the suit property adverse to Krishnamurthy Rao through whom the plaintiffs claim title, the defendants 1 and 2 got their title to the suit property perfected by prescription and adverse possession. The suit for partition is hopelessly barred by limitation and hence the suit must be dismissed.

iii) In the light of the above said pleadings, the following issues have been framed.

1) Whether the plaintiffs are entitled to partition of the suit property?

2) Whether the Will alleged by the defendants is true and valid and binding on the plaintiffs?

3) Whether the defendants can claim right over the property without obtaining Lettes of Administration in respect of the alleged Will executed by Vittal Rao?

4) Whether the defendants have perfected their title to the suit property by adverse possession as contended in the written statement?

5) Whether the claim of the plaintiffs is barred by law of limitation?

6) To what other reliefs if any, the parties are entitled?

6. As pointed out earlier, since the parties in both the suits are one and the same except the fact that one of the plaintiffs in T.O.S.No.40/1994, namely R.Malathi is not a party in C.S.No.673/1987, and since the rival claims made by the parties are one and the same in both the cases, both the cases have been tried together and common evidence have been recorded for both the cases in T.O.S.No.40/1994. For the sake of convenience, the parties are hereafter referred to in accordance with their ranks in T.O.S.No.40/1994. The 9th plaintiff in T.O.S.No.40/1994/8th defendant in C.S.No.673 of 1987 figured as the sole witness on their side and deposed as P.W.1. Exs.P1 to P37 were marked on their side. The 6th defendant in T.O.S.No.40/1994 (6th plaintiff in C.S.No.673 of 1987) figured as the sole witness, namely D.W.1 and Exs.D1 to D9 were marked on the side of the defendants in T.O.S.No.40/1994.

Issue Nos.1 and 2 in T.O.S.No.40 of 1994 and
Issue No.2 in C.S.No.673/1987

7. Admittedly Vittal Rao died on 19.11.1958. Ex.P1 also confirms the same. According to the plaintiffs, Vittal Rao executed a Will bequeathing the property in favour of the defendants 1 and 2 alone excluding Krishnamurthy Rao, the other son of Raja Rao. The will dated 25.11.1955 propounded by the defendants has been produced as Ex.P2. But, no one except R.S.Ravi, 9th plaintiff in T.O.S.No.40/1994 (son of M.R.Srinivasan) has been examined on the side of the defendants to prove the Will. Serious objection has been raised regarding the genuineness as well as validity of the said Will. In such circumstances, it is the duty of the propounder of the Will to prove due execution and attestation of the Will. It is also incumbent upon the propounder of the Will to dispel the suspicious circumstances to get the genuineness of the Will upheld. It is also the duty of the propounder of the Will to show that the Will was executed by the testator while he was in sound disposing state of mind. The lone witness examined on the side of the plaintiffs, namely P.W.1 (9th plaintiff in T.O.S.No.40/1994) would state that he was born on 22.10.1969 i.e. 10 years after the death of Vittal Rao. Therefore, it is crystal clear that he cannot have any personal knowledge of the execution or attestation of the Will. None of the attestors, not even the scribe, was examined on the side of the plaintiffs. Nobody, who saw the testator signing the Will or the attestors attesting the Will, has been examined to prove its execution and attestation.

8. It is also pertinent to note that P.W.1 would plead ignorance as to when Raja Rao and Vittal Rao retired from service. It is his further admission that he never verified with his father M.R.Srinivasan as to who attested Ex.P2-Will. It is also his admission that he did not verify with M.R.Ramamurthy about the execution and attestation of the said Will. It is also his admission that he is not familiar with the signature of Vittal Rao and that he did not know who prepared/drafted Ex.P2-Will. In Ex.P2, N.Duraisamy Iyengar and P.P.Chinnappa are the two names found as attestors. Duraisamy Iyengar's address is given as "No.110, Nainiappa Naicken Street, Madras-3", whereas P.P.Chinnappa's address is given as "No.1A, Raghavaiah Road, T.Nagar". In Ex.P15-Release Deed, name and signature of Duraisamy Iyengar, as the first attestor, alone is found and it is the second attestor therein, namely S.V.Kothadia who is shown to be residing at "No.110, Nainiappa Naicken Street, Madras-3". While identifying the parties before the Registering authority in Ex.P15, N.Duraisamy Iyengar, son of N.Ananthachariar has given his address as "No.8,West Mada Street, Kaladipet, Madras-19" and the address of the second attestor S.V.Kothadia is shown as "No.110, Nainiappa Naicken Street, Madras-3". It is pertinent to note that the address of first attestor of the Will, namely Duraisamy Iyengar found in the Will in question, namely Ex.P2, is different from the one found in Ex.P15. On the other hand, the address of one Kothadia found in Ex.P15 is shown to be the address of Duraisamy Iyengar, the first attestor of the Will. The second attestor, namely P.P.Chinnappa's address is given to be the very same address as that of Vittal Rao, namely the address of the suit property. Under such circumstances, the defendants have taken a stand that the Will is not a genuine one and it is one created and forged. No doubt it is true that the defendants have also taken a plea that the Will is tainted by fraud, undue influence and coercion and that hence the burden of proving the same shall be on them. But unless and until the initial burden of proving execution and attestation of the Will and the sound disposing state of mind of the testator at the time of execution is proved, there shall be no question of shifting the burden on the defendants to prove the vitiating factors, more so, when they have denied the genuineness of the Will.

9.
Section 68
of the Evidence Act prescribes the mode of proof of execution of a document required by law to be attested. A will, is no doubt, a document required by law to be attested. The section mandates that such a document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, subject to the process of the court and capable of giving evidence. There is no evidence to show that none of the attestors is alive subject to the process of court and capable of giving evidence. The proviso to
Section 68
of the Evidence Act is not attracted because of the specific exclusion of Will from the proviso. The exclusion of Will from the proviso is deliberate since a Will comes into effect and the proof of will arises only after the death of the testator. Absence of evidence on the side of the plaintiffs to show that none of the attestors of the Will is alive, shall pave the way for holding that the suit Will (Ex.P2) has not been proved in the manner prescribed under
Section 68
of the Evidence Act, 1872. At the cost of repetition, it is further pointed out that not even the signatures of the testator and that of the attestors found in Ex.P2-Will have been proved by the identification of the same by persons who were familiar with the same.

10.
Section 69
provides for the manner of proving a document referred to in
Section 68
if no attesting witness can be found. It says that it must be proved by proving that attestation of the one of the attesting witnesses at least is in his hand writing and that the signature of the person executing the document is in the hand writing of that person. In this case, there is no reliable evidence, except the interested testimony of P.W.1. He also does not have any personal knowledge and is also not familiar with the handwriting (signature) of the attestors and the testator. No other evidence has been adduced to prove that the attestation of at least one of the attesting witnesses in Ex.P2-Will is in his handwriting and that the signature of the testator, namely Vittal Rao, is in the handwriting of Vittal Rao. Therefore, this court has to come to a necessary conclusion that Ex.P2-Will has not been proved either in accordance with
Section 68
or in accordance with
Section 69
of the Evidence Act, 1872.

11. However, the learned counsel for the defendants, relying on
Section 90
of the Evidence Act, 1872, argued that Ex.P2-Will, being an ancient document aged more than 30 years, should be presumed to be genuine. In support of his contention, the learned counsel for the defendants relied on the following judgments:-

i) Subramanya Swami the Idol in Arulmigu Subramanyaswamy Koil, Tiruchendur, by its
Executive Officer vs. Thiru.K.Sankaran
reported in 2000 M.L.J. (Supp.) 252;

ii) Munnalal, minor, and others, V. Mst.Kashibai and others reported in AIR (34) 1947 PRIVY COUNCIL 15 and

iii) Sri Lakhi Baruah and others v. Sri Padma Kanta Kalita and others reported in AIR 1996 SUPREME COURT 1253

The first one is a judgment of a single judge of this court wherein the learned single judge opined that
Section 90
of the Evidence Act, 1872 shall apply even in case of a Will. In the second of the cases cited above, the PRIVY Council has also expressed a view that the actual execution and attestation of a Will, which is proved to be an ancient document of more than 30 years old, can be presumed when it is produced from proper custody. In the third case cited above, the Hon'ble Supreme Court has held that
Section 90
of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years; that in order to obviate such difficulties or impossibilities to prove such execution of an old document,
Section 90
has been incorporated in the
Evidence Act, 1872
, which does away with the strict rule of proof of private documents. It has also been held that presumption of genuineness may be raised if the document in question is produced from proper custody; that however, it is the discretion of the court to accept the presumption flowing from
Section 90
and that such discretion, which is no doubt a judicial discretion, should not be exercised arbitrarily.

12. The said decision of the Hon'ble Supreme Court does not directly deal with the question whether the presumption under
Section 90
can be extended to a Will. At the same time, the Apex court has also made it clear that it is not mandatory in all cases that such presumption should be drawn. In clear terms, it has held that it is a guided discretion of the court to make a decision as to whether the presumption under
Section 90
is attracted in the given case.

13. The learned counsel for the defendants admits that in the judgment of the PRIVY Council relied on by the learned counsel for the plaintiffs, it was held by the PRIVY council that the presumption enshrined in
Section 90
of the Evidence Act, 1872 shall be applicable to a Will if it is produced from a proper custody. But according to his arguments, the view of PRIVY Council has become redundant in view of the subsequent pronouncements of the Hon'ble Supreme Court.

14.
In
Kalidindi Venkata Subbaraju and others v. Chintalapati Subbaraju and others
reported in AIR 1968 SUPREME COURT 947 the Supreme Court had an occasion to consider whether the presumption under
Section 90
would be applicable to a Will of 30 years old when not the original Will but a certified copy of the same alone was produced. In the said case, the Hon'ble Supreme Court held that such presumption could not be extended to a copy of the Will and that such presumptions were applicable only in respect of production of the original documents from proper custody.

15. The question of applicability of
Section 90
to Wills came up for discussion before the Hon'ble Supreme recently in
Bharpur Singh and Others vs. Shamsher Singh
reported in (2009) 3 Supreme Court Cases 687.

The following observation made in
H.Venatachala Iyengar v. B.N.Thimmajamma
reported in AIR 1959 SC 443 was quoted with approval by the apex court:-

" 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"

In the said case it has also been held that the propounder of a Will must prove that the Will was signed by the testator in a sound 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; that when evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of testator's mind, courts will be justified in making a finding in favour of propounder and that 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, according to
the said decision
of the Supreme Court, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.

16.
In
Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao
reported in (2006) 13 SCC 433 the Hon'ble Supreme Court has made the following observations:-

"33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a will does not ordinarily differ from that of proving any other document.

17.
In
Anil Kak v. Sharada Raje
reported in (2008) 7 SCC 695 the Hon'ble Supreme Court made the following observations:-

"52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exits suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.

Even as per the judgment of the Apex court in Sri Lakhi Baruah and others v. Sri Padma Kanta Kalita and others reported in AIR 1996 SUPREME COURT 1253 it shall not be mandatory to draw a presumption as per
Section 90
of the Evidence Act, 1872 regarding the due execution and attestation of a Will. It has been made clear by the Hon'ble Supreme Court in the said judgment itself that it is the discretion of the court to accept the presumption flowing from
Section 90
and that such a discretion is no doubt a judicial discretion and a presumption under
Section 90
shall not be drawn arbitrarily without being informed by reasons.

18. Referring to the above said observations made in the earlier decisions, the Hon'ble Supreme Court in
Bharpur Singh and Others vs. Shamsher Singh
reported in (2009) 3 Supreme Court Cases 687 has declared the law in this regard in the following words:-

"The provisions of
Section 90
of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will, have no application. A will must be proved in terms of the provisions of
Section 63(c)
of the Succession Act, 1925 and
Section 68
of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely
Sections 69
and
of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as
Section 68
of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence."

In view of the emphatic pronouncement of the position of law in this regard, this court has to come to a necessary conclusion that recourse to
Section 90
to prove the suit will shall not be available to the plaintiffs.

19. Even assuming that
Section 90
of the Evidence Act is applicable to Wills, in this case, the presumption contemplated under
Section 90
has to be negatived because there is no proof that the document has been produced from proper custody. There is no evidence to show from whose custody the will was produced and how that document came to be in his custody. Above all, the language used in
Section 90
is that the court 'may presume' and not 'shall presume'. In this case, apart from the fact that there is no evidence as to how the person who produced the will in the court came to possess the same, there are also suspicious circumstances surrounding the Will. When there are such suspicious circumstances, even assuming that
Section 90
presumption shall be applicable to a Will, it shall be the judicial wisdom not to draw such a presumption as the burden to dispel the suspicious circumstances is on the propounder of the Will. In this case, the testator admittedly died without issues. The plaintiffs 1 and 2 and Krishnamurthy Rao, namely the father of the defendants 2 to 6, all being sons of his brother, were related to him in equal degrees. No reason has been assigned for the preference of two of them alone excluding one. An attempt was made on the side of the plaintiffs to show that since Krishnamurthy Rao and his sons had already relinquished their right in the suit property by Ex.P15-Release Deed, the other two sons of Raja Rao alone were preferred to be made as legatees. The said contention is far from being acceptable, much less as having the force of dispelling the suspicion.

20. Per contra, the plaintiffs were able to demonstrate that the address of one of the attestors found in Ex.P15 differs from the same found in Ex.P2 which came to be executed within a gap of 2 = months. The purchase in the name of Raja Rao under Ex.D1 is not referred to in the Will. Not even the Release Deed  Ex.P15 was referred to in the Will. It has also been demonstrated that the address of one Kothadia found in Ex.P15 is shown to be the address of Duraisamy Iyengar, who figures as the first attestor of Ex.P2-Will. Under the above circumstances, this court has to hold that the Will is surrounded by suspicious circumstances and the suspicious circumstances have not been dispelled by the plaintiffs by adducing reliable evidence.

21. For all the reasons stated above, this court hereby holds that the execution and attestation of Ex.P2-Will and the sound disposing state of mind of Vittal Rao at the time of alleged execution of the same have not been proved by the plaintiffs in the manner known to law and that hence these issues have to be decided against the plaintiffs. As a result, the plaintiffs are non-suited for the relief of probate sought for in T.O.S.No.40 of 1994.

Issue No.3 in C.S.No.673/1987

22. While discussing the issues in T.O.S.No.40 of 1994, it has been held that the Will propounded by the plaintiffs is not proved to be genuine and that they are not entitled to the relief of probate. Since it has been held that the plaintiffs are not entitled to the relief of probate, issue No.3 has lost its significance to a greater extent. The fact that the plaintiffs have not succeeded in proving the Will shall disentitle them to claim to be the absolute owners of the suit property to the exclusion of the defendants as testamentary legal heirs of Vittal Rao. On the other hand, their right to succeed to the properties of Vittal Rao along with the defendants remains unaffected and in fact such a right of the plaintiffs is also not disputed by the other side. The same shall take us to the next question whether the plaintiffs are entitled to the relief of partition and mesne profits as claimed by them.

Issue No.1 (part) in C.S.No.673 of 1987:

23. The case of the defendants (plaintiffs in C.S.No.673 of 1987) is that the suit property was the self-acquired property of Raja Rao, the father of the deceased plaintiffs 1 and 2 and their brother Krishnamurthy Rao. The deceased first defendant was the wife of Krishnamurthy Rao and defendants 2 to 6 are their children. There is no dispute regarding the identity and description of the suit property. The parties are litigating for one and the same property. According to the defendants (plaintiffs in C.S.No.673 of 1987), the same was the self-acquired property of Raja Rao and since he died intestate, each one of his three sons became entitled to a common 1/3 share. There is no dispute regarding the fact that Raja Rao died intestate in the year 1948, much before the
Hindu Succession Act
came into force. It is also not in dispute that whatever properties Raja Rao would have left behind him, would have devolved equally upon his three sons, namely M.R.Krishnamurthy Rao, M.R.Ramamoorthy and M.R.Srinivasan, as per the law of succession that was applicable on the date of death of Raja Rao. It is also not in dispute that Raja Rao pre-deceased his brother Vittal Rao, who died issueless. It is also not in dispute that defendants 1 and 2 and Krishnamurthy Rao would have been the non-testamentary legal heirs of Vittal Rao as per the
Hindu Succession Act, 1956
, as Vittal Rao died on 19.11.1958 in the absence of any testament.

24. If at all the suit property is the one proved to be the property of Raja Rao, there would not be any difficulty in holding that Krishnamurthy Rao would have become entitled to 1/3 share in it on the death of Raja Rao. Exactly that is what the case of the defendants is. On the other hand, the plaintiffs have taken a plea that the suit property was not the one owned by Raja Rao as claimed by the defendants and on the other hand, it was the property of his brother Vittal Rao and that it was Vittal Rao, who put up construction and was in possession and enjoyment of the same till his death on 19.11.1958. The death certificate has been marked as Ex.P1. Admittedly, the suit property was purchased as a vacant site from the Corporation of Madras in the name of Raja Rao under a registered sale deed dated 07.08.1929. The original sale deed has been produced and marked as Ex.D1. The other documents produced on the side of the defendants, namely Exs.D2 to D9, are exchange of notices between the parties through their advocates. Even though the purchase of the property as a vacant site in the name of Raja Rao has been admitted, the plaintiffs have taken a plea that the actual purchaser was Vittal Rao and that it was he who made the purchase from the Corporation of Madras benami in the name of his brother Raja Rao. In order to substantiate their contention that the property, as a vacant site, was purchased by Vittal Rao benami in the name of his brother Raja Rao, they relied on Exs.P3 to P17, besides the oral testimony of P.W.1. Ex.P3 is the letter dated 26.03.1929 of the Corporation Engineer accepting the bid of Vittal Rao that was made on behalf of Mr.Raja Rao for the purchase of the suit building site for a sum of Rs.637/- and directing him to make payment of the balance sale consideration after deducting a sum of Rs.200/- already paid. Ex.P4 is the receipt for payment of stamping and registration fee for the sale deed to be executed pursuant to Ex.P3. Ex.P5 is the receipt for payment of Rs.200/- referred to in Ex.P3 as the initial payment for the purchase of the building site. A consideration of Exs.P3 to P5 will show that though the documents were in the name of Vittal Rao, Vittal Rao did not act on his own and he acted on behalf of his brother Raja Rao in making the bid and in making the payment of the sale consideration and registration and stamping fees. Therefore, the said documents are not conclusive proof of the contention of the plaintiffs that Vittal Rao was the actual purchaser and he purchased the suit property as a vacant site with his own money benami in the name of his brother Raja Rao. However, there are other documents in the form of Exs.P6 to P17, all standing in the name of Vittal Rao, not as representing his brother Raja Rao.

25. Admittedly, Raja Rao died in the year 1948. If at all the property was purchased by Raja Rao and was retained by him as his own, on the death of Raja Rao, only his sons would have become entitled to it excluding his brother Vittal Rao. On the other hand, it is pertinent to note that the permit to construct a building in the suit property was obtained by Vittal Rao which is evidenced by Ex.P6, the building permit dated 11.03.1940 in his own name. Stating that a portion of the public street was encroached upon by Vittal Rao while putting up the construction, notice under Section 220 of Madras City Municipal Act, 1919 came to be issued requiring him to remove the encroachment within seven days. The said notice is Ex.P7. A copy of the reply sent by Vittal Rao to the Commissioner, Corporation of Madras on 19.05.1943 is Ex.P8. The certificate of posting for sending the reply is Ex.P9. A special notice dated 17.07.1948 addressed to Vittal Rao enhancing the annual assessment value of the suit building for the first half of 1948-49 from Rs.601/- to Rs.874/- is Ex.P10. A copy of the reply for the said notice along with postal receipt has been produced as Ex.P11. The postal acknowledgment for service of the said reply on the corporation is Ex.P12. The intimation dated 19.10.1948 sent by the Commissioner, Corporation of Madras to Vittal Rao regarding confirmation of the revised annual assessment value is Ex.P13. The extract from the Permanent Land Register relating to the suit property showing the name of Vittal Rao as owner, has been produced as Ex.P14. Quit rent receipts dated 17.12.1955 in the name of Vittal Rao are Exs.P16 and P17.

26. As against such voluminous documents showing that it was Vittal Rao, who was dealing with the property as if it were his own, there is no such document produced on the side of the defendants to show enjoyment of the property by Raja Rao. Except Ex.D1, the sale deed dated 07.08.1929 in the name of Raja Rao, there is no other document to show that Raja Rao was in possession and enjoyment of the suit property at any point of time. Oral evidence of P.W.1 coupled with the above discussed documentary evidence will make probable the case of the plaintiffs that the suit property was purchased as a vacant land from the Corporation of Madras by Vittal Rao benami in the name of his brother Raja Rao. The said inference is strengthened by Ex.P15-Release Deed executed by Krishnamurthy Rao for himself and on behalf of his minor sons in favour of M.R.Ramamoorthy and M.R.Srinivasan (the deceased plaintiffs 1 and 2) and Vittal Rao. The said document is one registered as document No.42/1955 in the office of the Sub-Registrar, T.Nagar. In page 2 of the said Release Deed, clear recital has been made admitting the suit property to be in possession of Vittal Rao as its absolute owner by self-acquisition. For easy reference, the relevant portion is reproduced hereunder:-

"Whereas the aforesaid M.Vittal Rao is in possession and enjoyment of house and ground No.1A Ragaviah Road, Tyagaraya Nagar, Madras bearing Survey No.5364 as the absolute owner by self acquisition."

In page 3 of the said Release Deed, clear recital has also been made to the effect that the sons of Raja Rao and grand sons of Raja Rao through Krishnamoorthy Rao did not have any title or interest in the suit property. The relevant portion reads as follows:-

"whereas the Releasor and Releasees 1 and 2 have no title or interest in the house and ground No.1A Ragaviah Road absolutely belonging to M.Vittal Rao."

The properties left by Raja Rao, all deposits in bank, cash, jewels and movables, have been shown in Schedules 'A' and 'B' of the Release Deed in which alone, as per the recital, Krishnamurthy Rao and his sons had a common 1/3 share and they released their share in them by getting a sum of Rs.4,250/- from others.

27. However, a weak argument was put-forth on behalf of the defendants that since the Release Deed contained a recital which is factually erroneous, admission contained therein would have no legal effect. The recital which is sought to be projected as factually erroneous is that on the death of Raja Rao, apart from his three sons, his brother Vittal Rao was also shown to be one of his heirs and Vittal Rao was inappropriately described to be a coparcener and a heir of deceased Raja Rao. The fact remains that Vittal Rao was also shown to be one of the Releasees since the parties wanted to make a record of the fact that the only immovable property purchased in the name of Raja Rao was not the one purchased by him and on the other hand, it was a purchase made by Vittal Rao and that Vittal Rao alone was in possession and enjoyment of the same as its absolute owner. The suit property is not shown to be one of the estates of Raja Rao left behind him in the said document. On the other hand, the other assets like deposits in bank, cash, jewels and movables alone are said to be the estate of Raja Rao in which the share of the Krishnamurthy Rao and his sons came to be released in favour of M.R.Ramamoorthy and M.R.Srinivasan after obtaining a value for the same. From the same, it is quite obvious that though the purchase of the suit property as a vacant land, from the Corporation of Madras, was made in the name of Raja Rao, it was his brother Vittal Rao, who actually paid the money and purchased it and that it was he who got the building permit and put up the construction. It is also obvious that right from the beginning it was Vittal Rao, who was enjoying the property, paying the revenue to the Corporation as if it was his own property to the exclusion of others and that it was Vittal Rao, who was served with notice for the removal of encroachment and notices demanding payment of quit rent. Therefore, this court has to necessarily come to the conclusion that the plea of the plaintiffs that though the property was purchased in the name of Raja Rao, Vittal Rao was the actual purchaser; that Vittal Rao had purchased the property from the Corporation of Madras benami in the name of his brother Raja Rao and that right from the date of purchase it was Vittal Rao who was in possession and enjoyment of the property as its absolute owner - stands substantiated.

28. The next question that arises in this regard is whether the plea of the plaintiffs that the property was purchased by Vittal Rao benami in the name of his brother Raja Rao and that right from the date of purchase Vittal Rao alone was in possession and enjoyment of the property as its owner, will amount to a plea which is prohibited under the provisions of
Benami Transaction (Prohibition) Act, 1988
. It is now well settled that the
Benami Transactions (Prohibition) Act, 1988
does not have retrospective effect to make illegal or invalidate the benami transactions entered into prior to the date on which the said Act was brought to force. But,
Section 4
of the Benami Transactions (Prohibition) Act, 1988 provides that no suit, claim or action to enforce any right in respect of the property held benami against the person in whose name the property is held or against any person shall lie by or on behalf of a person claiming to be the real owner of such property. It also provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

29. A reading of
Section 4
of the Benami Transactions (Prohibition) Act, 1988 shall make it clear that a person claiming to be the real owner or a person who claims through such person claiming to be the real owner is not only debarred from filing a suit making a claim or initiating an action to enforce any right in respect of such property held benami against the person in whose name the property is held or any other person, but also from making any defence. But the section is interpreted not to mean upsetting the title already confirmed, say for example a declaration already obtained or possession obtained through court or otherwise by the person claiming to be the real owner against the person in whose name the property was held.
Section 1
of the Benami Transactions (Prohibition) Act, 1988 is to the effect that
sections 3
,
and
of the Act would come into force at once, namely the date of notification of the Act and the other sections would be deemed to have come into force on 19.05.1988, namely the date of Ordinance. A suit already filed or a claim already made prior to the date on which the Act came into force is not affected by the Act and such a plea in such cases could be pursued. Similarly, a plea of defence taken in a suit, if the written statement was filed prior to the date on which the Act came into force, such a plea is not affected. If no written statement was filed prior to the date on which the Act came into force, thereafter no plea of defence based on any right in respect of such property held benami can be taken claiming to be the real owner. However, while dealing with the application of the Act, it has been held that the Act does not intend to unsettle title or possession already secured on the basis of the plea of Benami. It has been held that the right of the persons claiming to be the real owners who have got back the property prior to the date on which the Act was brought into force shall not be affected by the provisions of the Act. In this case, though the plea of the plaintiffs happens to be one of benami transaction, since the property had been dealt with by Vittal Rao right from the date of purchase as his own and in fact after the death of his brother Raja Rao he got a clause included in Ex.P15-Release Deed in which the legal representatives of Raja Rao have admitted not only the title of Vittal Rao but also his possession as absolute owner of the suit property. The plea of the plaintiffs that Vittal Rao was the real owner of the property does not attract the bar provided under
Section 4
of the Benami Transaction (Prohibition) Act, 1988. The said Release Deed was executed on 11.06.1955 itself. By the said document, the title of Vittal Rao to the suit property came to be acknowledged and admitted by all the sons of Raja Rao and the grandsons of Raja Rao through Krishnamurthy Rao. That being so, it is crystal clear that though the purchase was a benami one, Vittal Rao's title was admitted and acknowledged long back in 1955 itself and hence the defendants who are the legal heirs of Krishnamurthy Rao, shall be estopped from contending that the suit property belonged to Raja Rao and did not belong to Vittal Rao. For all the reasons stated above, this court comes to the conclusion that Vittal Rao and not Raja Rao was the owner of the suit property.

Issue Nos.4 and 5 in C.S.No.673 of 1987:-

30. The next contention of the plaintiffs is that the suit is barred by limitation and they have perfected their title by adverse possession. It is admitted by the plaintiffs that the suit, the property belonged to Vittal Rao and was with him till his death on 19.11.1958. The property tax receipts, quit rent receipts, permanent land register extract and the communications from the Corporation of Madras in the name of plaintiffs 1 and 2, namely M.R.Ramamurthy and M.R.Srinivasan have been produced as Exs.P18 to P26. Planning permit in the name of those two persons has been produced as Ex.P27. Water supply and sewerage board bills have been produced as Ex.P28 series. Property tax receipts and bills have been produced as Ex.P29 series and notice from Metropolitan water supply and sewerage board has been produced as Ex.P30. The other documents marked as Exs.P31 to P36 are exchange of lawyer's notices. Much importance need not be attached to them. Ex.P37 is the certificate that no estate duty in respect of the suit property is due. The same does not provide any clue as to who was in possession of the property and who paid the estate duty. Of course, it is true that the records relating to the suit property maintained in the Corporation office stand in the name of M.R.Ramamurthy and M.R.Srinivasan. Under Ex.P18-property tax receipt, upto March 1960, property tax has been paid in the name of Vittal Rao. Only from April 1960 property tax receipts are issued in the name of Ramamurthy and another as occupier of the property. Ex.P19 is one more quit rent receipt dated 10.04.1960 showing remittance in the name of Vittal Rao.

31. It has been held that the property did not belong to Raja Rao as claimed by the plaintiffs and on the other hand, Vittal Rao was the absolute owner and he was in possession and enjoyment of the suit property till his death on 19.11.1958. As such, succession to the suit property left by Vittal Rao has opened on 19.11.1958. A feeble attempt was made to contend that Krishnamurthy Rao and his sons having released their rights in the property under Ex.P15-Release Deed, shall not be entitled to claim a share in the same as they are estopped from claiming a share in it. What was admitted by them under Ex.P15 is that they would not make a possible claim that the property having been purchased in the name of Raja Rao was the property of all the three sons of Raja Rao. By the admission made in Ex.P15 only the absolute title of Vittal Rao in the suit property was acknowledged and confirmed and there is no release of their prospective right of succesion to the properties of Vittal Rao. Except incorporating such an admission that Vittal Rao was the absolute owner of the suit property, there was no release of any right in respect of the suit property. A spes successionis cannot be the subject mater of transfer or release and factually right to succeed to the property of Vittal Rao on his death, has not been either released or relinquished either by Krishnamurthy Rao or his sons. Therefore, the above said contention raised on behalf of the plaintiffs deserves to be rejected as untenable.

32. Of course in Ex.P20-extract from permanent land register, M.R.Srinivasan and M.R.Ramamurthy alone are shown to be the owners of the suit property. But in the said document, the suit property is shown to be a vacant site whereas admittedly there existed a building. Ex.P21 is a receipt for payment of license fee remitted by M.R.Ramamurthy for putting up construction. Property tax receipts from 1964, upto 30.09.1981 in the name of "Ramamurthy and another" have been produced as Ex.P22 series. Notices issued by Corporation to Ramamurthy and Srinivasan for amendment of property tax assessment have been produced as Exs.P23 and P24 series. Assessment notices issued to Ramamurthy and others have been produced as Exs.P25 and P26. Ex.P24 is in the name of Ramamurthy alone. Of course Ex.P27 is in the name Ramamurthy and Srinivasan. But Ex.P28 series are either in the name of Ramamurthy alone or in the name of Ramamurthy and others. Similar is the case of Ex.P29 series. When it is proved or admitted that the property is the common property of the plaintiffs and the defendants, the person pleading adverse possession, should come forward with an unambiguous plea of exclusion of other co-owner or co-owners setting up open assertion of hostile title. From which date possession of the plaintiffs became adverse to that of the defendants and from which date the defendants were ousted from the property by necessary physical and mental element should be specifically pleaded and proved. In this case, no such details have been pleaded and no clear evidence has been adduced on the side of the plaintiffs. The above documents produced by the plaintiffs, would at the best, show that the plaintiffs 1 and 2 were dealing with the property as the heirs of Vittal Rao. Therefore, the possession of the suit property by the plaintiffs shall tantamount to possession on behalf of the other co-owners, namely the defendants also. As such, this court comes to the conclusion that the plea of ouster and adverse possession put-forward by the plaintiffs has not been substantiated by reliable evidence. For the same reasons, the plea that the suit is barred by limitation is also bound to fail. Both the issues are decided against them and in favour of the defendants.

Issue No.1 (part) and 6 in C.S.No.673 of 1987

33. It has been held supra that the plea of adverse possession and limitation raised by the plaintiffs are not sustainable. It is an admitted fact that Vittal Rao died without issues. There is no evidence as to when Vittal Rao's wife died. On the other hand, it is an admitted case of both the parties that on the death of Vittal Rao, his predeceased brother Raja Rao's three sons alone would have become his legal heirs entitled to have equal shares in his property, provided he had not made any arrangement for succession to his property. Therefore, the deceased plaintiffs 1 and 2 and Krishnamurthy Rao, the father of defendants 2 to 6, became entitled to 1/3 share each. The defendants 1 to 6 became entitled to 1/3 share in the suit properties as legal heirs of Krishnamurthy Rao, who in turn was a legal heir of Vittal Rao on his death. After the death of the first and 2nd defendants, the defendants 3 to 10 have became entitled to the said share of Krishnamurthy Rao. Defendants have also proved their right to claim partition and separate possession of their share in the suit property. It is therefore concluded that the defendants (plaintiffs in C.S.No.673/1987) are entitled to a preliminary decree for partition directing division of suit properties into three equal shares and allotment of one such share to them. The question of mesne profits shall be relegated to be decided in the final decree proceedings or in a separate application for the said purpose. It shall be in the interest of justice to direct the parties to bear their respective costs upto this point of litigation.

34. In the result C.S.673 of 1987 is allowed and a preliminary decree for partition directing division of suit properties into three equal shares and allotment of one such share to the defendants 3 to 10 (plaintiffs 3 to 10 in C.S.673 of 1987) is passed. The question of mesne profits shall be decided in the final decree proceedings or in a separate application for the said purpose. Parties are directed to bear their respective cost till this stage of litigation. Testamentary Original Suit No.40 of 1994 is dismissed. There shall be no order as to costs in both the suits.

03.09.2010
Index : Yes
Internet : Yes
asr/-

Witness examined on the side of the plaintiff:-

R.S.Ravi (P.W.1)

Witness examined on the side of the defendants:-

Sandhya (D.W.1)
Documents marked on the side of the plaintiffs:-

Ex.P1  Death certificate of Vittal Rao dated 19.11.1958
Ex.P2  Original registered Will executed by Vittal Rao dated
22.11.1955
Ex.P3  Letter from Corporation of Madras to Vittal Rao dated
26.03.1929
Ex.P4  Challan for payment of money for stamping and registration
fees dated 04.06.1929
Ex.P5  Challan for payment of money for sale of building sites
dated 25.03.1929
Ex.P6  The sanction accorded by Corporation of Madras in favour
of Vittal Rao dated 11.03.1940
Ex.P7  Notice issued by Corporation of Madras to Vittal Rao dated
05.05.1943
Ex.P8  Reply sent by Vittal Rao to Corporation of Madras dated
19.05.1943
Ex.P9  Certificate of posting
Ex.P10  Notice issued by Corporation of Madras to Vittal Rao dated
17.07.1948
Ex.P11  Reply notice by Vittal Rao along with postal receipts dated
28.07.1948
Ex.P12  Acknowledgments
Ex.P13  Reply from Corporation of Madras to Vittal Rao
Ex.P14  Extract of permanent land register in the name of Vittal
Rao dated 23.09.1955
Ex.P15  Registered Release Deed executed by Krishnamoorthy Rao
and others dated 11.06.1955
Ex.P16  Quit rent receipts issued to Vittal Rao dated 17.12.1955
Ex.P17  Quit rent receipts issued to Vittal Rao dated 13.09.1957
Ex.P18  Property tax receipts
Ex.P19  Quit rent receipts dated 10.02.1960
Ex.P20  Extract of permanent land register in the name of
M.R.Ramamurthy and M.R.Srinivasan dated 19.05.1961
Ex.P21  Challan for payment of license fee for construction dated
21.11.1962
Ex.P22 (series)  Property tax receipts
Ex.P23 (series)  Notices issued by Corporation of Madras to
M.R.Ramamurthy and M.R.Srinivasan dated
27.08.1965
Ex.P24  Notices issued by Corporation of Madras dated 25.03.1970
Ex.P25  Notices issued by Corporation of Madras dated 15.03.1975
Ex.P26  Notices issued by Corporation of Madras dated 24.03.1975
Ex.P27  Planning Permit dated 21.06.1978
Ex.P28 (series)  Water tax and property tax receipts
Ex.P29 (series)  Property tax receipts (15 Nos.)
Ex.P30  Notice issued by CMWSSB dated 08.06.1983
Ex.P31  Legal notice issued by the plaintiffs dated 07.02.1986
Ex.P32  Reply notice dated 18.02.1986
Ex.P33  Reply notice dated 10.03.1986
Ex.P34  Reply dated 05.05.1986
Ex.P35  Reply by the defendants counsel dated 20.07.1986
Ex.P36  Reply dated 28.07.1948
Ex.P37  Estate duty certificate dated 20.12.1990

Documents marked on the side of the defendants:-

Ex.D1  Original Sale deed dated 07.08.1929
Ex.D2  Notice from defendants' counsel to plaintiffs dated
07.02.1986
Ex.D3  Reply notice from plaintiffs' counsel to defendants' counsel
dated 18.02.1986
Ex.D4  Letter from defendants' counsel to plaintiffs' counsel dated

04.03.1986
Ex.D5  Letter from plaintiffs' counsel to defendants' counsel dated
10.03.1986
Ex.D6  Letter from defendants' counsel to plaintiffs' counsel dated
18.04.1986
Ex.D7  Letter from plaintiffs' counsel to defendants' counsel dated
05.05.1986
Ex.D8  Rejoinder dated 20.07.1986
Ex.D9  Letter from plaintiffs' counsel to defendants' counsel dated
28.07.1986

P.R.SHIVAKUMAR, J.

asr/

PRE DELIVERY JUDGMENT
IN T.O.S.No.40 of 1994 and

C.S.No.673/1987

Dated : 03.09.2010
