Raj Mohan v. Srinivasa Chettiar & Ors.

Rangamannar Chettiar had a son, by name, Srinivasa Chettiar and adaughter, by name, Alamelu; Srinivasa Chettiar had a son by namePandurangan, the second plaintiff and the third plaintiff is his minorson; Alamelu, the third defendant was married to one Subramanian, thesecond defendant; out of their wedlock, four children namely,Rajamohan, Palani, Govindaraj and Malliga were born and they werearrayed as defendants 1, 4, 5 and 6, respectively, before the TrialCourt. (ii)Rangamannar Chettiar was adjudged as insolvent in I.P.No.31of 1929 on the file of the Sub Court, Cuddalore; accordingly, thesuit property described in 'A' schedule was brought to sale ininsolvency on 19.03.1991; the property was sold by the officialReceiver and in that sale, the property was taken in court auction byone Kalyanarama Iyer for Rs.72/-, who was a close friend ofRangamannar Chettiar. Rangamannar Chettiar purchased the properties inthe name of his close friend Kalayanarama Iyer in order to sell thesame for the benefit of the family; the said Kalyanarama Iyer had notitle to the property and he was only a benamidar; he never tookpossession of the property and it was only Rangamannar Chettiar, whocontinued to be in possession of the same. On 23.11.1937, the saidKalyanarama Iyer re-conveyed the property to Rukmani Ammal, mother ofRangamannar Chettiar by means of a sale deed for Rs.100/-, but nomoney was actually paid to him; the property was purchased for thebenefit of the joint family in the name of Rukmani Ammal, becauseRangamannar Chettiar filed an insolvency petition and there wereundischarged decrees; Rukmani Ammal had no title to the property.(iii)The sale in favour of Rukmani Ammal is nominal, which isevident from the fact that the sale deed never came into effect; theproperty assessment stood always in the name of Rangamannar Chettiar;it was never changed in favour of Rukmani Ammal, both before and afterthe insolvency sale; the property has also been dealt with as theproperty of Rangamannar Chettiar and later by his son, by name,Srinivasa Chettiar, the first plaintiff in the suit.(iv)Rangamannar Chettiar died on 31.07.1939 and after his death,the first plaintiff has been in possession of the schedule mentionedsuit property in his own right and he had executed several mortgagesin which Rukmani Ammal was also a party; in the documents, RukmaniAmmal has admitted that the suit properties were ancestral propertiesof the first plaintiff; therefore, Rukmani Ammal or any personclaiming under her are estopped from claiming any title to the suitproperty. Electricity service connection for the suit property alwaysstood in the name of the first plaintiff; there are two serviceconnections i.e., S.C.658 and S.C.4279 and from the year 1941, thefirst plaintiff alone was paying the house tax and the electricitybills. https://hcservices.ecourts.gov.in/hcservices/ (v)The first plaintiff, his wife Perundevi Ammal and their sonPandurangan, the second plaintiff were all living together in the suitproperty; the first plaintiff's sister, Alamelu and her husband, thesecond defendant were previously living at Thirupapuliyur, Cuddalore-2; as the second defendant, who was doing plantain business in themarket at Thirupapuliyur had no proper accommodation at Cuddalore, herequested the first plaintiff, who is none other than his brother-in-law to allow him to stay in a portion of the suit property at Panruti,promising that he would vacate the portion as and when he getssuitable accommodation and the first plaintiff also permitted him andhis family to remain in a room in the upstairs portion of the suitproperty.(vi)In the due course of time, the second defendant with amotive to grab the possession of the suit property, poisoned the mindof the first plaintiff's wife, Perundevi Ammal and gradually createdmisunderstanding between the first plaintiff and her, due to which,from 1978, the first plaintiff and his wife were not in talking termsand the first plaintiff was not even taking food at his house. On theinducement of the second defendant, the first plaintiff's wife,Perundevi Ammal filed a suit for declaration of title and forpossession of the suit property in O.S.No.225 of 1981 on the file ofthe Subordinate Judge, Cuddalore against the first plaintiff and histenants and claimed title on an alleged Will executed by Rukmani Ammalin her favour; the first plaintiff was the third defendant in thesuit; the suit was conducted by the second defendant on behalf of thefirst plaintiff's wife and it was contested by the first plaintiff;the first plaintiff's wife was merely a puppet in the hands of thesecond defendant, who had a dominative influence over her and she wasdoing everything only at his bidding; she neglected not only herhusband but also her only son, the second plaintiff. Given tounderstand that the case would not succeed, the second defendantwithdrew the suit on 15.04.1983 with liberty to file a fresh suit.(vii)The second defendant was originally allowed to remainonly in a room in the upstairs; gradually, he trespassed major portionof the 'B' Schedule properties and is living there with his family;the second plaintiff is married and has got a child aged 4 years; thefirst plaintiff and the second plaintiff's family are living only in asmall portion in the upstairs (i.e., the 'C' Schedule property); theentire house property is mentioned in 'A' Schedule properties; evenafter withdrawal of the suit in O.S.No.225 of 1981, the seconddefendant has been giving trouble to the plaintiffs and he has beentrying to drive them out of the house by force; the first plaintiffhas also given a police complaint in that regard; without theknowledge of the plaintiffs, the second defendant has obtained asettlement deed from the first plaintiff's wife Perundevi Ammal infavour of his son, the first defendant in the suit; the second https://hcservices.ecourts.gov.in/hcservices/ defendant was exercising complete control and influence over PerundeviAmmal and he completely alienated her from her husband, son anddaughter-in-law. Taking advantage of this situation and exploiting itto his own benefits, the second defendant had obtained a document fromher in the name of his son. (viii)In July 1984, the second defendant and his sonGovindarajulu suddenly took away Perundevi Ammal from the houseand her whereabouts were not known and the plaintiffs gave a complaintto the Circle Inspector on 04.07.1984, suspecting that PerundeviAmmal had been taken away only for the purpose of obtaining somedocuments from her; the plaintiffs also caused a publication to bemade in “Daily Thanthi” dated 03.08.1984. All of a sudden, theplaintiffs received a telegram on 07.08.1984 that Perundevi Ammal diedat Cuddalore; immediately, the plaintiffs rushed to the house ofRajamohan, the first defendant; Defendants 1 and 2 refused to handover the corpse and only on the next day, i.e. On 08.08.1984 at 11.00am, after mediation and after getting a letter from the plaintiffs,the corpse was handed over to the plaintiffs and thereafter theybrought the corpse to Panruti and performed the rites. (ix)In the sequence of events, the death of Perundevi Ammal wasunder suspicious circumstances; she was never suffering from anyserious illness; only later, the plaintiffs came to know that adocument had been obtained from her and the first plaintiff got theregistration copy on 22.09.1984; the plaintiffs were shocked to findthat a settlement deed of the entire 'A' Schedule property has beenobtained in favour of the first defendant. According to theplaintiffs, the defendants 1 and 2 have hatched a diabolical andsinister plan to grab the property. Perundevi Ammal has got only son,who is married and has a 4 year old male child and there wasabsolutely no motive for her to deprive her own kith and kin andexecute a settlement deed in favour of her husband's sister's son; theattestors and scribe of the settlement deed are the close friends ofthe second defendant and with their help a false and fraudulentdocument had been obtained; the said settlement deed is not a true orvalid document; under the settlement, the first defendant will notget any title because Perundevi Ammal herself had no title. Takingadvantage of the Settlement Deed the defendants 1 and 2 have attemptedto dispossess the plaintiffs 'C' Schedule property; hence, theplaintiffs filed a suit in O.S.No.154 of 1988 for declaration of theirtitle to the 'A' Schedule properties and recovery of possession of the'B' Schedule properties.3(i).The first defendant, in the written statement, has notdisputed that the suit properties originally belonged to LogappaChettiar and that after various stages of succession, RangamannarChettiar got the properties. He stated that Rangamannar Chettiar was https://hcservices.ecourts.gov.in/hcservices/ an insolvent and the suit properties were sold in Court auction by theOfficial Receiver and the same were purchased by Kalyanarama Iyer ofMelkumaramangalam Village, in pursuance of which Kalyanarama Iyer tookpossession of the property and enjoyed the same. He denied theaverment in the plaint that the sale was taken in the name ofKalyanarama Iyer, benami by Rangamannar Chettiar; he also denied theaverment that the sale deed was taken by Rangamannar Chettiar in thename of his mother without paying the sale price, for the family. 3(ii).According to the first defendant, on 23.11.1937,Kalyanarama Iyer sold the property to Rukmani Ammal, for considerationand in pursuance of the sale deed, Rukmani Ammal alone was inpossession of the property and she has dealt with the property on herown, by executing a usufructory mortgage; the plaintiffs are estoppedfrom setting up any theory of benami transaction by the recentenactment; the usufructory mortgage deed dated 15.08.1942 containsall sorts of false and wrong recitals and cannot be relied upon by theplaintiffs for any purpose as the said Rukmani was an illiterate. On06.02.1950, the said Rukmani Ammal had executed a Will of all herproperties in favour of Perundevi Ammal; the said Will was executedby the textatrix voluntarily in a sound and disposing state of mindand the same was duly executed and validly attested. Rukmani Ammaldied on 11.08.1953 and after her death, Perundevi Ammal became theabsolute owner of the property and she was in possession and enjoymentof the same, in her own right; the said Perundevi Ammal has executed asettlement deed of the property in favour of the first defendant on18.05.1984 and the said settlement deed was duly executed and validlyattested, accepted and acted upon. In pursuance of the settlementdeed, the first defendant was put in possession of the property andthus, according to the first defendant, he had become the absoluteowner of the suit property. 3(iii). Further, in the written statement, the first defendanthas stated that the suit filed by Perundevi Ammal in O.S.No.225 of1981 on the file of the Sub-Court, Cuddalore is a clear piece ofevidence exposing the relationship between Perundevi Ammal and thefirst plaintiff; as Srinivasa Chettiar was the husband of PerundeviAmmal, he and other plaintiffs were allowed to stay in a portion ofthe suit property ex gratia; he denied the averment that he was put inpossession of the suit property by the plaintiffs on permission. Hehas further stated that as the husband of Perundevi Ammal, the firstplaintiff must have concocted and obtained service connection and taxreceipts in his own name without her knowledge and prayed that thesuit may be dismissed with costs.4.The first defendant, in the additional written statement hasstated that the plaintiffs are not entitled to claim that RangamannarChettiar purchased the property for his benefit, benami in the name ofKalyanarama Iyer and that Kalayanarama Iyer had no title to the https://hcservices.ecourts.gov.in/hcservices/ property; and that the plaintiffs are prohibited from stating that thesaid transactions are benami in nature by virtue of the “BenamiTransactions Prohibition Act.” He denied the averment in paragraphIII (8) of the plaint that the second defendant has obtained thesettlement deed dated 18.05.1984 from Perundevi Ammal in the name ofthe first defendant using undue influence over her; the saidsettlement deed was voluntarily executed by Perundevi Ammal in a soundand disposing state of mind and the attestors to the settlement deedare the close friends of the defendants.5.The second plaintiff, in the reply statement has denied thecontentions raised in the additional Written Statement as notsustainable. According to him, the provisions of the BenamiTransaction Prohibition Act will not be applicable to the facts ofthis case. He stated that Rukmani Ammal is a member of the family ofRangamannar Chettiar and his wife and the plaintiffs cannot invoke theprovisions of the Act. It was his contention that the settlementobtained by the second defendant from Perundevi is an invalid andillegal document as it was obtained at a time when Perundevi wasmentally impecile and not in a sound disposing state of mind. Hesubmitted that the settlement deed is vitiated on account of thegrounds mentioned in the plaint and the second defendant cannot claimany title to the property and it is the plaintiffs who are entitled tosucceed Perundevi Ammal as legal heirs.6(i).The second defendant, in the written statement hasstated that the properties originally belonged to Rukmani Ammal;Rukmani Ammal had dealt with the property as her own property and shehad executed a Will on 06.02.1950 in favour of Perundevi Ammal and shedied on 11.08.1953; thereafter, Perundevi Ammal became the absoluteowner of the property and she was in possession and enjoyment of theproperty in her own right. He denied the allegation that theplaintiffs allowed him to reside in a portion of the suit property;according to him, it is only Perundevi Ammal who allowed him to stayin the house and he also denied the allegation that he poisoned themind of Perundevi Ammal.6(ii).The second defendant has further stated that he hadnothing to do with the filing of the suit in O.S.No.225 of 1981 on thefile of the Sub Court, Cuddalore; he denied the allegation that hetook away Perundevi Ammal from the house in July 1984 and had obtaineda document. He submitted that no steps have been taken against him onthe alleged case given by the first plaintiff and he also denied theallegation that he refused to hand over the corpse to the plaintiffs.It was his further submission that Perundevi Ammal had executed aSettlement Deed of the property in favour of the first defendant on18.05.1984, which is true and valid document, duly accepted and actedupon and that he is in possession thereof. https://hcservices.ecourts.gov.in/hcservices/ 6(iii).He further submitted that he is an unnecessary party tothe suit and that since he is in possession of the property by virtueof the settlement deed in his favour, he has absolutely nothing to dowith the suit property. He contended that merely because he is inpossession of the property, he cannot be impleaded unnecessarily andprayed for dismissal of the suit as not maintainable as against himand defendants 3 to 6, both on facts and in law.7.The Trial Court, on consideration of the facts andcircumstances of the case and on an analysis of the materialsavailable on record has raised the following questions of law :“(a)Whether the Will dated 06.02.1950 is true and valid in law? (b)Whether the Settlement Deed dated 18.05.1984 is true and valid in law? (c)Whether the second defendant is a necessary party in the suit? (d)Whether the plaintiffs are entitled to declaration of the 'A' Schedule property ?(e)Whether it is true that the defendants have trespassed into the 'B'Schedule property? (f)Whether the plaintiffs are entitled to possession of the 'B'Schedule properties? (g)Whether the Settlement Deed dated 18.05.1984 was created dueto the undue influence of the second defendant? (h)Whether the defendants are stayed from claiming possession of the suit property?On answering the above said questions of law, the Trial Courtheld that the plaintiffs are entitled to possession of the 'B'Schedule property and decreed the suit in their favour. Aggrieved bythe judgment and decree of the Trial Court, the first defendanttherein has approached this Court by way of the present appeal.8.Heard Mr.Ram Mohan, learned Senior Counsel appearing onbehalf of the appellant and Mr.V.Raghavachari, learned counsel for therespondents.9.Learned Senior Counsel appearing for the appellant wouldcontend that the lower Court erred in finding that the purchase byRukmani Ammal was benami for the joint family and it is the burden ofthe plaintiffs to prove that there was a benami transaction. He alsocontended that the plea of benami transaction cannot be raised by theplaintiffs in view of the enactments prohibiting benami transactionsand also the decision of the Supreme Court. It is the contention of https://hcservices.ecourts.gov.in/hcservices/ the learned Senior Counsel that there is no acceptable evidence toshow that the first plaintiff was in possession of the property in hisown right. He questioned the finding of the lower Court that in viewof the relationship between the first plaintiff and Rukmani Ammal, itwas not natural for the first plaintiff or his father to have paideither the tax for the suit house or the electricity consumptioncharges and the court below ought to have seen that Rukmani Ammal wasalso living in the same house and hence the possession of the firstplaintiff cannot be said to be adverse to Rukmani Ammal and also theCourt below has erred in not taking note of the fact that the firstplaintiff himself has produced the Will in a prior litigation in whichhe was a party. 9a.Learned Senior Counsel further contended that the courtbelow has not properly considered the suit instituted by PerundeviAmmal in O.S.No.225 of 1981 in which she has made allegations againsther husband and her son and also he would contend that there was noinvestigation in any of the police complaints and it is only a makebelieve document just to throw suspicion on the settlement deed. 9b.In support of his contentions, learned Senior Counsel hasrelied on the following decisions :(i)In JT 1995 (1) SC 223 in the case of Smt.Ramti Devi vs.Union of India, the Supreme Court has held, as under:“2....Pleadingitself is not sufficient. Since the appellant is seekingto have the document avoided or cancelled, necessarily, adeclaration has to be given by the court in that behalf.Until the document is avoided or cancelled by properdeclaration, the duly registered document remains validand binds the parties. So the suit necessarily has to belaid within three yerars from the date when the cause ofaction had occurred. Since the cause of action has arisenon January 29, 1947, the date on which the sale deed wasexecuted and registered and the suit was filed on July 30,1966, the suit is hopelessly barred by limitation. ...”(ii)The Andhra Pradesh High Court in the case of KarireddyRamayamma vs. Kasireddy Rama Rao reported in AIR 2000 Andhra Pradesh29 has held as follows:“13.... It is also well accepted that no relief canbe granted to a defendant party in spite of the plaintifffailing to prove or establish his claim. Therefore, underthese circumstances, the bar is staring against a partydefendant in making an attempt to avoid a document towhich he is a party by taking the mere plea of fraudwithout the same being declared void in a suit filed under https://hcservices.ecourts.gov.in/hcservices/ S.31 of the Specific Relief Act, more so, when theapprehension is writ large on the allegations in theplaint where the document is relied on and used againstthe defendant.”(iii)The Supreme Court in the case of Uma Devi Nambiar andothers v.s T.C.Sidhan (dead) reported in (2004) 2 SCC 321 has held asunder:“16.A Will is executed to alter the ordinary mode ofsuccession and by the very nature of things, it is bound toresult in either reducing or depriving the share of naturalheirs. If a person intends his property to pass to hisnatural heirs, there is no necessity at all of executing aWill. It is true that a propounder of the Will has toremove all suspicious circumstances. Suspicion meansdoubt, conjecture or mistrust. But the fact that naturalheirs have either been excluded or a lesser share has beengiven to them, by itself without anything more, cannot beheld to be a suspicious circumstance especially in a casewhere the bequest has been made in favour of anoffspring. ...”(iv)The Supreme Court, in yet another decision in the case ofDaulat Ram and others vs. Sodha and others reported in (2005) 1 SCC 40has held as under:“13.The burden of proof that the Will dated08.05.1983 executed by Prati in favour of his daughter wasforged or was obtained by undue influence or by playing afraud was on the appellants which they have failed todischarge. No evidence was led by them on either of thesepoints.”(v)In the case of India Financial Association, Seventh DayAdventists vs. M.A.Unneerikutty and another reported in 2006 (4) CTC597, the Supreme Court has held as follows:“14.... Where a contract, express or implied, isexpressly or by implication forbidden by statute, no Courtwill lend its assistance to give its effect. [See Mellisvs. Shirley L.B., (1885) 16 QBD 446; 55 LJQB 143 ; 2 TLR360]. A contract is void if prohibited by a statute,under a penalty, even without express declaration that thecontract is void, because such a penalty implies aprohibition. The penalty may be imposed with intentmerely to deter persons from entering into the contract orfor the purposes of revenue or so that the contract shallnot be entered into so as to be valid at law. A https://hcservices.ecourts.gov.in/hcservices/ distinction is sometimes made between contracts, enteredinto with the object of committing an illegal act andcontracts expressly or impliedly prohibited by statute.The distinction is that in the former class one has onlyto look and see what acts the statute prohibits; it doesnot matter whether or not it prohibits a contract; if acontract is made to do a prohibited act, that contractwill be unenforceable. In the latter class, one has toconsider not what act the statute prohibits, but whatcontracts it prohibits. One is not concerned at all withthe intent of the parties, if the parties enter into aprohibited contract, that contract is unenforceable. ...It is well established that a contract which involvesin its fulfillment the doing of an act prohibited bystatute is void. The legal maxim A pactic privatorumpublico juri non derogatur means that private agreementscannot alter the general law. Where a contract, expressor implied, is expressly or by implication forbidden by statute, no Court can lend itsassistance to give it effect. What is done incontravention of the provisions of an Act of thelegislature cannot be made the subject of an action.”(vi)In 2006 (4) CTC 805 in the case of B.Suresh Chand vs. Stateof Tamil Nadu, Chennai and another, a Full Bench of this Court hasheld as under:“29.A reading of the above provisions show that theparty must plead all material facts on which he means torely at the trial. If any one of the material fact isomitted, the statement of claim is bad and it would mean nopleading and no cause of action for the suit. If materialfacts are not pleaded, a Court cannot permit evidence to beled. In Udhav Singh vs. Madhav Rao Scindia, 1977 (1) SCC511, the Supreme Court has defined the expression “materialfacts” in the following words:“All the primary facts which must be provedat the trial by a party to establish theexistence of a cause of action or his defenceare material facts”.30.The distinction between “material facts” and“particulars” cannot be overlooked. Material facts areprimary and basic facts which much be pleaded by the partyin support of the case set up by him, either to establishhis cause of action or defence. Since the object andpurpose is to enable the opposite party to know the case he https://hcservices.ecourts.gov.in/hcservices/ has to meet, in absence of pleading a party cannot beallowed to lead evidence. Failure to state even a singlematerial fact, hence, will entail dismissal of the suit.Particulars, on the other hand, are the details of the case.They amplify, refine and embellish material facts. Theygive the finishing touch to the basic contours of a picturealready drawn so as to make it full, more clear and moreinformative. “(vii)The Supreme Court, in (2007) 6 MLJ 192 SC in the case ofShankaranarayana Rao (D) by Lrs. of others vs. Leelavathy (dead) byLrs. and others has held as under:“11.Principal on the basis whereof determination ofthe question as to whether a transaction is a benami one ornot depends upon a large number of factors. Some of themhad been noticed by this Court in Thakur Bhim Singh (dead)by Lrs. And another vs. Thakur Kan Singh (supra) in thefollowing terms:“18.The principle governing thedetermination of the question whether a transfer isa benami transaction or not may be summed up thus:(1) The burden of showing that a transfer is abenami transaction lies on the person who assertsthat it is such a transaction; (2) it is provedthat the purchase money came from a person otherthan the person in whose favour the property istransferred, the purchase is prima facie assumed tobe for the benefit of the person, who applied thepurchase money, unless ther is evidence to thecontrary; (3) the true character of thetransaction is governed by the intention of theperson who has contributed the purchase money and(4) the question as to what his intention was hasto be decided on the basis of the surroundingcircumstances, the relationship of the parties, themotives governing their action in bringing aboutthe transaction and their subsequent conduct, etc.”10.Per contra, learned counsel appearing for the respondentshas submitted that the respondents/plaintiffs are entitled topossession of the suit property and that it is only theappellant/first defendant who has claimed possession of the same bycreating a forged settlement deed. He contended that under theSettlement Deed, the appellant will nto get any title becausePerundevi Ammal herself had no title to the same. It is his furthercontention that taking advantage of the settlement deed, the appellantis attempting to dispossess the respondents of the suit schedule https://hcservices.ecourts.gov.in/hcservices/ property. Therefore, he prayed that the appeal may be dismissed byconfirming the judgment of the Lower Court.10a.In support of his contentions, learned counsel for therespondents has relied on the following rulings:(i)In AIR 1972 Madras 413 in the case of S.Rathnam Naidu andanother vs. V.Kanni Ammal and others, this Court has held as under:“15.After noting the conclusions arrived at in thedecisions cited above and taking into consideration thefacts of the present case, I have absolutely no hesitationin coming to the conclusion that the settlement deed Ex.B1has been taken from Ammayee Ammal owing to the undueinfluence exercised by the first defendant. The learnedcounsel for the appellants Mr.Raghavachari cited thedecision in Someshwar vs. Tribhawan, AIR 1934 PC 130, butthis decision has absolutely nothing to do with the factsof the present case and I do not think that the samesupports the view taken by Mr.Raghavachari."(ii)This Court, in yet another judgment reported in 2004 (4)L.W. 597 in the case of Santha Bai vs. Ponnamma and others has held asunder:“15....It is also recited in the deed Ex.B-1 thatthere is no male issue born to him and so he is living withthe defendant and the second wife Nesam and therefore, dueto his old age he executed the sale deed out of love andaffection. It is also recited in the deed that he alreadyexecuted a settlement deed in favour of his daughter, thesecond plaintiff born to his first wife Ponnamma. Thesefacts clinch the issue that Subramania Konar executed thegift deed Ex.B1 in favoour of the defendant when he was insound and disposing stand of mind. ...“(iii)In (2006) 3 MLJ 633, in the case of G.Jayaraman and othersvs. Ranganayaki and others, this Court has held as follows:“17.It is of course true that irrespective of thedefence taken by the defendants in a probate proceedings,it is for the propounder to prove the due execution of theWill and clear the suspicious circumstances, if any. Inthe present case, notwithstanding some minor discrepanciesin the evidence of P.W.1, it can be held that the executionof the Will has been proved and the so called suspiciouscircumstances do not merit discarding of the Will which hasbeen registered. Since the defendants have not been able https://hcservices.ecourts.gov.in/hcservices/ to bring on record any credible evidence to establishcoercion or, undue influence, conclusion of the learnedsingle Judge cannot be sustained.”(iv)The Supreme Court in 2006 (2) L.W. 658 in the case ofPentakota Satyanarayana and others vs. Pentakota Seetharaman andothers has held as under:“27.It is settled by a catena of decisions that anyand every circumstance is not a suspicious circumstance.Even in a case where active participation and execution ofthe Will by the propounders/beneficiaries was there, it hasbeen held that that by itself is not sufficient to createany doubt either about the testamentary capacity or thegenuineness of the Will. It has been held that the merepresence of the beneficiary at the time of execution wouldnot prove that the beneficiary had taken prominent party inthe execution of the Will. This is the view taken by thisCourt in Sridevi and others vs. Jayaraja Shetty and others(2005) 2 SCC 784 = 2005 (2) L.W. 89. In the said case, ithas been held that the onus to prove the Will is on thepropounder and in the absence of suspicious circumstancessurrounding, the execution of the will proof of signatureof the testator as required by law not be sufficient todischarge the onus. In case, the person attesting the Willalleges undue influence, fraud or coercion, the onus willbe on him to prove the same and that as to what suspiciouscircumstances which have to be judged in the facts andcircumstances of each particular case.29.Mr.Narsimha, learned counsel for therespondents, submitted that the natural heirs were excludedand legally wedded wife was given a lesser share andtherefore, it has to be held to be a suspiciouscircumstance. We are unable to countenance the saidsubmission. The circumstances of depriving the naturalheirs should not raise any suspicion because the whole ideabehind the execution of the will is to be interfered in thenormal line of succession and so natural heirs would bedebarred in every case of the Will. It may be that in somecases they are fully debared and some cases partly. ...50.In the result, we hold that the Will, Ex.B9 is atrue and genuine document and the appellants andSeetharatnam will be entitled to the properties respectivelyallotted to them under the said Will. We also hold that thealleged adoption is not true and therefore, the allegedadopted son Krishna Bhagavan has no right or any interest inany of the suit properties.” https://hcservices.ecourts.gov.in/hcservices/ (v)The Supreme Court, in yet another decision reported in 2007(2) L.W. 870 in the case of B.Venkatamuni vs. C.J.Ayodhya Ram Singhand others has held as under:“24.The Division Bench of the High Court was, withrespect, thus, entirely wrong in proceeding on the premisethat compliance of legal formalities as regards proof of theWill would sub-serve the purpose and the suspiciouscircumstances surrounding the execution thereof is not ofmuch significance.25.The suspicious circumstances pointed out by thelearned District Judge and the learned Single Judge of theHigh Court, were glaring on the face of the records. Theycould not have been ignored by the Division Bench and in anyevent, the Division Bench should have been slow ininterfering with the findings of fact arrived at by the saidcourt. It applied a wrong legal test and thus, came to anerroneous decision.”11.Heard the respective parties and perused the materialdocuments on record. 12.The first defendant in the suit has filed this appeal,whereas the defendants 2 to 6 are not before this court. Therelationship of the respective parties are not in dispute. It is seenthat originally, one Logappa Chettiar had two sons, by names,Kuppusami Chettiar and Krishnappa Chettiar; Krishnappa Chettiar pre-deceased his brother, leaving behind his son Rangamannar Chettiar;Kuppusami Chettiar had no male issues; after his death, RangamannarChettiar had got the ancestral property by way of survivorship. Thesaid Rangamannar Chettiar had a son by name, Srinivasa Chettiar, thefirst plaintiff in the suit; the second plaintiff, Pandurangan is theson of Srinivasa Chettiar and the third plaintiff, who was a minor atthe time of filing of the suit is the son of Pandurangan; later he hadbeen declared as major. Alamelu, the third defendant in the suit, whois none other than the sister of the first plaintiff, SrinivasaChettiar is the wife of Subramanian, the second defendant in the suitand defendants 1, 4, 5 and 6 are her children. Except Rajamohan, thefirst defendant in the suit, no other defendant has come on appealbefore this court.13.It is further seen that Rangamannar Chettiar was adjudged asinsolvent in I.P.No.31 of 1929 on the file of the Sub Court,Cuddalore; accordingly, the suit property described in 'A' schedule https://hcservices.ecourts.gov.in/hcservices/ was brought to sale in insolvency on 19.03.1991 and it was sold by theofficial Receiver. One Kalyanarama Iyer, a close friend ofRangamannar Chettiar purchased the property in court auction forRs.72/-; on 23.11.1937, the said Kalayanarama Iyer conveyed theproperty to Rukmani Ammal, mother of Rangamannar Chettiar by means ofa Sale Deed. The plaintiffs claim that the suit property waspurchased for the benefit of the joint family in the name of RukmaniAmmal, because Rangamannar Chettiar filed an Insolvency Petition andthere were undischarged decrees; they also claimed that though theproperty was purchased in the name of Rukmani Ammal, who is only abenamidar, the property has been assessed in the name of RangamannarChettiar and has been dealt with as the property of RangamannarChettiar and later by his son, Srinivasa Chettiar.14.It is also seen that after the death of Rangamannar Chettiaron 31.07.1939, certain documents have been filed by the firstplaintiff showing that he has been in possession of the suit scheduleproperty after his father's death and that he had executed mortgages;the documents would also show that the electricity service connectionstands in the name of the first plaintiff. It appears that Alameluand Subramanian, the third and second defendants have been living in aportion of the suit property and Srinivasa Chettiar and his familywere occupying the upstair portion of the suit property. It alsoappears that Perundevi Ammal, wife of the first plaintiff hadmisunderstanding with her husband and they were not in talking terms;while that being the position, she had filed a suit in O.S.No.225 of1981 on the file of the Subordinate Judge, Cuddalore against the firstplaintiff and his tenants for declaration of title of the suitproperty and possession of the same; she also claimed title based onthe Will executed by Rukmani Ammal in her favour; later, the seconddefendant withdrew the suit on 15.04.1983 with liberty to file a freshsuit. 15.A reading of the written statement by the second defendantwould go to show that he had claimed his right of possession inrespect of the 'B' Schedule property as he is living there with hisfamily. It is revealed that the first and second plaintiff's familyare living in a small portion in the upstairs (i.e., the 'C' scheduleproperty). According to the plaintiffs, the second defendant with anulterior motive to grab possession of the suit schedule propertystarted giving trouble to them and they have lodged a police complaintagainst the defendants in that regard. While that being so, thesecond defendant has claimed that a Settlement Deed has been executedby Perundevi Ammal in favour of his son.The point which now arisesfor consideration is the genuineness or otherwise of the SettlementDeed executed by Perundevi Ammal in favour of the second defendant'sson, as, a study of the case on hand would raise a practical questionas to why Perundevi Ammal executed the Settlement Deed dated18.05.1984 in favour of her husband's sister's son, the first https://hcservices.ecourts.gov.in/hcservices/ defendant in the suit, when she has got her own grandson.16.It is further seen that at one point of time, PerundeviAmmal disappeared from the house and unable to know her whereabouts,the plaintiffs lodged a complaint with the Panruti Police on04.07.1984, suspecting that Perundevi Ammal would have been taken awayby the defendants only for the purpose of obtaining certain documentsfrom her and in that regard a paper publication was also effected in"Daily Thanthi" on 03.08.1984; while so, the plaintiffs have receiveda telegram on 07.08.1984 that Perundevi Ammal died at Cuddalore; onreceiving the information, the plaintiffs rushed to the house of thefirst defendant, but the defendants 1 and 2 refused to hand over thecorpse; it appears that there was a mediation between them and onlyafter getting a letter from the plaintiffs, the corpse was handed overto the plaintiffs on 08.08.1984 at 11.00 am and thereafter theplaintiffs brought the corpse to their place and performed the rites.Taking advantage of the settlement deed, since the defendants 1 and 2attempted to trespass into the suit property, the plaintiffs filed asuit in O.S.No.154 of 1988 for declaration of title to 'A' scheduleproperty and recovery of possession of 'B' schedule property. 17.In the statement filed by the defendants, the plaintaverments that the suit property originally belonged to LogappaChettiar and Rangamannar Chettiar had got the same by survivorship andthereafter he has been declared as insolvent and there was courtauction in which Kalyanarama Iyer purchased the property were notdisputed; however, the said Kalyanarama Iyer sold the property toRukmani Ammal, mother of Rangamannar Chettiar. It is the claim of thedefendants that the sale deed dated 23.11.1937 was for validconsideration and in pursuance of the same, Rukmani Ammal was inpossession of the property and she has dealt with the property on herown by executing usufructory mortgage deed dated 15.08.1942 andtherefore, the plaintiffs are estopped from setting up any theory ofbenami transaction. A reading of the written statement would alsoshow that Rukmani Ammal had executed a Will of all her properties on06.02.1950 in favour of Perundevi Ammal in a sound and disposing stateof mind and the same was validly attested; Rukmani Ammal died on11.08.1953 and after her death, Perundevi Ammal became the absoluteowner of the property and was in possession and enjoyment of the same.Stating these facts which would otherwise raise a question regardingthe possession of the suit property by Perundevi Ammal, it is thedefendants' claim that Perundevi Ammal had executed a Settlement Deedin favour of the first defendant on 18.05.1984 and that the firstdefendant had become the absolute owner of the property. 18.Though the Court below has decreed the suit in favour of theplaintiffs, at this stage, it would be useful for this court to makenote of the following issues framed at the time of trial, in order tocome to a conclusion: (a) Whether the Will dated 06.02.1950 is true https://hcservices.ecourts.gov.in/hcservices/ and valid in law? (b) Whether the Settlement Deed dated 18.05.1984 istrue and valid in law? (c) Whether the second defendant is anecessary party in the suit? (d) Whether the plaintiffs are entitledto declaration of the 'A' Schedule property ? (e) Whether it is truethat the defendants have trespassed into the 'B' Schedule property?(f) Whether the plaintiffs are entitled to possession of the 'B'Schedule properties? (g) Whether the Settlement Deed dated 18.05.1984was created due to the undue influence of the second defendant?(h) Whether the defendants are stayed from claiming possession of thesuit property?19.From a pragmatic and analytical approach to the entire case,the crucial point that emerges is that the Trial Court has not framedissues regarding the purchase of the suit property in the name ofRukmani Ammal as benamidar for the benefit of the joint family ofRangamannar Chettiar or otherwise. Therefore, the entire findings ofthe Trial Court is vitiated by non-framing of proper issues withregard to benami transaction and on that score itself, the matter hasto be remitted to the Trial Court for fresh consideration. At thisjuncture, it is pertinent to state that since the pivotal aspect ofbenami transaction has not been discussed by the Trial Court thoughthe said aspect has been pleaded and agitated by the parties, thequestion of genuineness or otherwise of the Will and Settlement Deedand also the possession in respect of the schedule mentionedproperties need not be gone into by this Court.20.In the light of the above discussion, this court is of theopinion to remit the matter to the Trial court for fresh considerationin order to decide all the issues afresh for the reason that they havenot been framed properly. Therefore, this court has not delved intothe judgments relied on by the learned counsel on either side inrespect of their contentions regarding the genuineness or otherwise ofthe Will and the Settlement Deed.21.Law is well settled by the Supreme Court in the case ofPratima Sinha and others vs. Shashi Kumar Narain Sinha and othersreported in (2004) 13 SCC 599, that in a case where issues are notframed, the matter can be remitted to the concerned court below forfresh consideration. The relevant portion of the said judgment readsas under:"9.However, we do not intend to decide thematter on merits at all. We are of the view that theSubordinate Judge should have framed the issuesarising out of the pleadings in accordance with theprocedure of Order 14 Rule 1 of the Civil ProcedureCode. After framing all the issues, if the trialJudge is of the view that any of the issues raisedwould dispose of the suit either wholly or in partthen the Judge can on the basis of the provisions of https://hcservices.ecourts.gov.in/hcservices/ Order 14 Rule 2 decide such issue. The SubordinateJudge not having followed this procedure, we do notthink that it would be appropriate to uphold thedecision of the Subordinate Judge."22.The above decision squarely applies to the case on hand,inasmuch as the Trial Court has not framed any issue arising out ofthe pleadings with respect to benami transaction in accordance withOrder 14 Rule 1 of the Civil Procedure Code. Thus, as the judgmentand decree of the Trial Court are legally infirmed and unsustainableon the ground of non-framing of issues arising out of the pleadingswith respect to benami transaction, they are set aside and the matteris remitted to the court below for consideration afresh.Resultantly, the appeal stands allowed on the above terms. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarabeTo :The Subordinate Judge, Cuddalore.Copy toThe Section Officer,VR Section, High Court,Madras.+1cc to Mr.S.Subbiah, Advocate Sr 31742+1cc to Mr.V.Raghavachari, Advocate Sr 31770SSN(CO)km/15.7.A.S.No.214 of 1991