THE HONOURABLE MR v. Rathinammal2.Ramu3.mahalingam4.Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 23.01.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANS.A.No.232 of 1997Durairaj .. Appellant/Plaintiffvs.1.Rathinammal2.Ramu3.mahalingam4.Kumar .. Respondents/DefendantsPrayer: This second appeal has been filed under section 100 of CPC.againstthe decree and judgment, dated 03.10.1996 in A.S.No.202 of 1993 passed bythe Principal District Court at Vellore N.A.District, reversing thejudgment and decree of the District Munsif Court At Gudiyattam,N.A.District, dated 21.09.1993 in O.S.No.801 of 1983.For Appellant : Mr.G.RangarajanFor Respondent No.1 : Mr.N.Vanchainathan RR 2 to 4 : No Appearance JUDGMENTThis second appeal has been preferred against the decree and judgmentin A.S.No.203/1993 on the file of the Court of Principal District Judge,Vellore. The plaintiff, who has won the case before the trial Court couldnote succeed in the first appeal preferred by the defendants, haspreferred this second appeal.2. The short facts of the plaintiff's case as narrated in the plaintare as follows:-The suit has been filed by the plaintiff for declaration oftitle and consequential permanent injunction in respect of the plaintschedule property. The plaintiff is the youngest son of one Periyapaiyanand the other two elder brothers are Duraisamy and Mahadevan. As per theKoorchit entered into between the brothers on 5.1.1972 the plaint scheduleproperty was allotted to the share of the plaintiff and from that dateonwards the plaintiff is in possession and enjoyment of the plaintschedule property. The mother of the plaintiff is Ayammal who died on https://hcservices.ecourts.gov.in/hcservices/

1.1.1979. After her death, the plaintiff is in possession and enjoymentof the plaint schedule property. 3 acres 95 cents in S.No.13 waspurchased in benami in the name of the mother of the plaintiff viz.Ayammal. The suit property was purchased out of the joint family incomein the name of Ayammal. Ayammal is only a benamidar. The property in thename of Ayammal was partitioned among three sons of Ayammal on 5.1.1972.The plaintiff's elder brother Mahadevan died some three years back.While Mahadevan was alive he never objected to for the plaintiff'senjoyment over the suit property. After the death of Mahadevan his wifefirst defendant claimed right and title in respect of the plaint scheduleproperty on the basis of a Will said to have been executed by Ayammal fivedays prior to her death in respect of 3 acres 95 cents. The plaintiffdoes not know anything about the above said Will. The said Will is not agenuine document. Plaintiff's mother Ayammal was bed ridden even threeyears prior to her death. She was in a unconscious state of mind and waslying in stupor. The said Ayammal has no right or title in respect of thesuit property to execute the alleged Will in favour of the firstdefendant, since the property was purchased as binamy in the name ofAyammal from out of the joint family funds. As per the partition dated5.1.1972, the plaintiff is in possession and enjoyment of the suitproperty by paying land tax. Sine the defendant made an attempt tointerfere with the peaceful possession and enjoyment of the plaintiff overthe suit property, the plaintiff has filed the suit.3. The first defendant has filed a written statement adopted by thedefendants 2 to 4 as follows:-The suit is not maintainable as per the law and facts. Thedefendants admit the relationship between the parties. Mahadevan,Duraisamy and the plaintiff are the three sons of Periyapaiyan and Ayammaland their daughters are Pappammal and Rajammal. The first defendant isthe wife of the deceased Mahadevan. D2 to D4 are the children of thedeceased Mahadevan and first defendant. It is not true to say that thebrothers have partitioned the suit property as per the partition dated5.1.1972. No one is in possession of their respective shares as per theabove said partition deed. The possession in respect of the suit propertywas not entitled to the plaintiff in lieu of the said Koorchit dated5.1.1972. The allegation that the plaintiff is in possession andenjoyment of the suit property even after the death of Ayammal is false.The allegation that 3 acres 95 cents in S.No.13 was purchased out of thenucleus income of the joint family in the name of Ayammal is not true.Even before 5.1.1972 the above said 3 acres 95 cents was not enjoyed incommon. The facts is that Ayammal had purchased 3 acres 95 cents viz.Plaint schedule property in S.No.13 from out of her own income by sellingsheeps and gold ornamaments. Under the sale deed dated 12.3.1943, theabove said 3 acres 95 cents belongs to Ayammal exclusively. The saidAyammal was paying land tax to the suit property and is enjoying 3 acres95 cents exclusively. Ayammal was under the maintenance and care of thefirst defendant at the time of her death. Out of love and affectiontowards the first defendant Ayammal had executed a Will dated 25.12.1978bequeathing 3 acres 95 cents in S.No.12. Within 1 or 2 days after https://hcservices.ecourts.gov.in/hcservices/ executing the said Will, Ayammal died due to heart attack. After thedeath of Ayammal, the first defendant is in possession and enjoyment ofthe suit property by paying land tax. Hence, the suit for permanentinjunction is not maintainable. The Will dated 25.12.1978 was executed byAyammal while she was in sound disposing state of maind. The allegationthat Ayammal was bed ridden for nearly three months before her death istravesty of truth. Only to obstruct the legal possession and enjoyment ofthe defendant in respect of the plaint schedule property the suit has beenfrivolously filed by the plaintiff. The alleged Koorchit dated 5.1.1972is not a valid one. The sons of Ayammal have no right to partition thesuit property under Koorchit during the life time of Ayammal. In theabove said Koorchit neither Pappammal nor Rajammal were included. Thesuit is also bad for non-joinder of necessary parties like Pappammal andRajammal. Hence the suit is liable to be dismissed with costs of thisdefendants. 4. The learned trial judge on the basis of the above said pleadinghas framed as many as seven issues. On the side of the plaintiff P.W.1to P.W.4 were examined and Ex.A.1 to A.18 were marked. On the side of thedefendants, D.W.1 to D.W.18 were examined and Ex.B.1 to B.8 were marked. 5. On the basis of the available evidence both oral and documentarythe learned trial Judge has decreed the suit as prayed for. Aggrievedby the findings of the learned trial Judge, the defendants have preferredthe appeal in A.S.No.202/1993 before the Principal District Judge,Vellore, which was allowed by the first appellate Court. Against that thepresent second appeal has been preferred by the plaintiff.6. The substantial question of law involved in this second appealare as follow:-(i) Whether the first appellate Court erred in notconsidering the point of objection raised by the counsel forthe appellant/Plaintiff herein with regard to the validity ofthe evidence of D.W.3 under law since it has been held by theSupreme Court in its decision reported in A.I.R.1990 SupremeCourt page 1888 that the Registering authority can not be astatutory attesting witness to prove a Will under Section 74 ofthe Indian Succession Act 1925?(ii) The first appellate Court erred in not upholdingdecision of the trial Court that the contents of Exhibit.A.17the unregistered partition Deed the so called Koorchit could berelied on by the Court to believe that there had been apartition between the brothers of the plaintiff according tothe rulings reported in 1990(ii) MLJ 300, 1991(i) MLJ 52,1989 (ii) MLJ 19 and 1988(ii) MLJ 309?(iii) Whether the first appellate Court erred in notconsidering the point that the onus of proving the Ex.B.2, theWill, is heavily on D.W.1 the Propounder since it has beencontended by the plaintiff that the same has been executedunder suspicious circumstances according to the ruling reported https://hcservices.ecourts.gov.in/hcservices/ in 1992(ii) Law Weekly 726?7. The points:- 7(a) Admittedly the plaintiff is the brother of one Mahadevanand Duraisamy, the children of Periyapaiyan and Ayammal. The firstdefendant is the wife of the deceased Mahadevan one of the brothers of theplaintiff. D2 to D4 are the children of D1 and deceased Mahadevan. Theplaint schedule property is 1 acre 20 cents out of 3 acres 95 cents inS.No.13 in Shalamur Village, Katpadi sub-division, Guidyattam Taluk. Itis the definite case of the plaintiff that he got the property under akoorchit dated 5.1.1972 entered into between the plaintiff and hisbrothers Mahadevan and Duraisamy. Admittedly the plaint schedule propertywas purchased by the plaintiff's mother Ayammal under Ex.B.1-sale deeddated 12.3.1943. It is a registered document. The entire 3.95 centsunder S.No.13 was sold by one Munusamy and another in favour of Ayammal,the wife of Periyapaiyan. 7(b) It is pertinent to note that under Ex.A.17-koorchit, whichis an unregistered document, for which, stamp duty penalty hassubsequently been collected under Article 45 of the Indian stamp Act. Thesaid Ayammal, who had purchased the plaint survey number property underEx.B.1 was not made as a party. Ex.A.7 is dated 5.1.1972 on which datethe Indian Succession Act 1956 is in force and under Section 14 of theIndian Succession Act 1956, Ayammal is having full title in respect of thesuit survey number property which was purchased by her under Ex.B.1.But when the said Ayammal, the plaintiff and other two brothers haveentered into koorchit (Ex.A.17) it will not bind Ayammal. It is pertinentto note that Ayammal has not signed in Ex.A.17. There is only a provisionmade in Ex.A.17 to give Rs.500/- to Ayammal. So as rightly held by thefirst appellate Court under Ex.A.17, the plaintiff cannot claim any rightor title in respect of the plaint survey number property. On the otherhand the first defendant who is none other than the widow of one of thebrothers of plaintiff viz. Mahadevan would claim right and title inrespect of the suit property under Ex.B.2-Will said to have been executedby Ayammal in favour of her on 25.12.1978. Ex.B.2 is a registered Will. 7(c) As per Section 63 of the Indian Succession Act as well asunder Section 68 & 69 of the Indian Evidence Act, the will is to be provedat least by examining one of the attestors. One of the attestors toEx.B.2-Will is one Jeyaraj. The said Jeyaraj was examined as D.W.2.D.W.2 in his evidence would depose that he has signed as a witness in theWill-Ex.B.2 at the sub-registrar's office at Katpadi and that the otherattestor to Ex.B.2-Will is Adimula, who is now no more and that the scribeof Ex.B.2 is one Duraisamy and that the recitals were written by him asnarrated by the testator Ayammal and that the Will was read over toAyammal and thereafter she affixed her left thumb impression in hispresence and that he has signed as a witness in Ex.B.2-Will after anotherwitness Athimulam signed and that Ayammal also witnessed he having signedin the Will and the other witness also saw while he signed in the Will andAyammal affixed her left hand thumb impression in it. He wouldcategorically deposed that at the time of executing Ex.B.2-Will, Ayammalwas very sound state of mind. https://hcservices.ecourts.gov.in/hcservices/ 7(d) Apart from D.W.2, D.W.3-Sub Registrar, who hadregistered Ex.B.2-Will, was also examined on the side of the defendants.D.W.3 has also deposed to the effect that only in her presence Ex.B.2-Willwas registered and at the time of registration of the Will the testator ofthe Will Viz. Ayammal was in a sound disposing state of mind as per herenquiry. D.W.3 further deposed to the effect that she had registeredEx.B.2-Will only after ascertaining the mental condition of the testatoras to the sound disposing state of mind. So, the defendants have provedEx.B.2-Will as per the requirements contemplated under Section 68 of theEvidence Act.7(e) The learned counsel appearing for the appellant wouldcontend that Benami Transaction Prohibition Act will not be applicable tothe pending proceedings and that the question whether the sale deedexecuted in favour of Ayammal is a benami transaction and that theconsideration for the sale deed Ex.B.1 was paid out of the income of thejoint family properties. Even the recitals in Ex.B.1 dated 12.3.1943 willclearly go to show that the said property was purchased out of the incomeof Ayammal and also out of the sale proceeds of her jewels. Further underSection 100 of CPC, the question whether Ex.B.1-sale deed was taken inbenami in the name of Ayammal cannot be gone into at the time of secondappeal. To this proposition of law the learned Counsel for the appellantrelied on 2000(3) MLJ 149 (Sundaram Nadar Vs. Sukumaran), wherein it hasbeen held by the learned Judge of this Court as follows:-"In the following decisions: 1. Rabti Devi Vs. Ram Dutt (1997)11 SCC 714, 2.Satya Gupta (Smt) Alias Madhu Gupata Vs. Brijesh Kumar,(1998)6 SCC 423 and 3. Pawan Kumar Gupta Vs. RochiramNagdeo, AIR 1999 SC 1823.It has been held that the decision as to whether aparticular transaction is a benami transaction or not is aquestion of fact and the High Court should be loathe tointerfere under Section.100, CPC. It has been furtherobserved by the Supreme Court and several High Courts in casesthat the High Court while exercising jurisdiction underSection 100, CPC cannot reverse the findings of the lowerappellate Court on facts merely on the ground that on thefacts found by the lower appellate court another view waspossible."So from the above said ratio decidendi, the findings of the firstappellate Court regarding as to Ex.B.1-sale deed is not a benamitransaction cannot be reversed in Second Appeal as per provisions underSection 100 of CPC.7(f) Just like that the findings of the first appellate Courtin respect of the genuineness of the Will Ex.B.2 cannot also be interferedwith in second appeal by this Court as per the provisions under Section100 of CPC and as per the ratio decidendi in 1992(2) LW 726 (Smt.Guro Vs.Shri Atma Singh & ors.). The exact observation regarding this point bythe Honourable Apex Court is as follows:-"The High Court, in our opinion, was not justified inreversing the findings of fact recorded by the appellate Court https://hcservices.ecourts.gov.in/hcservices/ which were based on a proper appreciation of the evidence onrecord. In doing so, the High Court has failed to attachsufficient importance to the various suspicious featuresrelating to execution of the will that were pointed out by theappellate Court. The High Court has not even noticed the factthat the testator had died within 8 days of the execution of thewill and there is a recital in the will that the testator hadbeen ill for a long time and was seriously ill at the time ofexecution of the Will. In view of the said recital, it wasnecessary for the plaintiff-respondent No.1 to adducesatisfactory evidence with regard to the nature of the illnessof the testator and about his mental capacity to execute theWill."In the case on hand there is absolutely no evidence on record on behalf ofthe plaintiff to show that Ayammal was seriously ill and was bed riddenand not in a sound conscious and sound disposing state of mind to executeEx.B.2-Will. The learned first Appellate Court after considering allthose points has come to a definite conclusion that Ex.B.2 is a genuineWill. It is seen from Ex.A.18-death certificate relating to Ayammal thatshe died on 01.01.1979 i.e., one week after the execution of the Will.The learned counsel appearing for the appellant would contend that eventhough Ex.B.2-Will was executed on 25.12.1978, it was registered on28.12.1978 and within three days thereafter the testator Ayammal died,which leads to a suspicious circumstance. But the evidence of D.W.3, Sub-Registrar, who registered Ex.B.2-Will, will clearly go to show that on thedate of registration of Ex.B.2-Will Ayammal was hale and hearty.According to D.W.1, Ayammal died only due to heart attack. Under suchcircumstances, it cannot be said that Ex.B.2-Will was executed under asuspicious circumstance.7(g) A vain attempt was made by the appellant by contending thatD.W.3, the Registering Authority(Sub-Registrar) cannot be a statutoryattesting witness as per Section 74 of the Indian Succession Act. Forthis proposition of law, the learned counsel for the appellant relied onAIR 1990 SC 1888 (Dharam Singh Vs. Aso and another), wherein it has beenheld by the Honourable Apex Court as follows:-"The two attesting witnesses did not support the executionof the Will. The trial Court relied upon the statement of theregistering authority and on the basis of decisions of theLahore and Punjab and Haryana High Courts found that the Willhad been proved. The lower appellate Court revered the decisionby relying upon two decisions of this Court in M.L.Abdul JabharSahib Vs. H.V.Venkata Sastri & Sons, (1969) 3 SCR 513 : (AIR1969 SC 1147) and Beni Chand (since dead) now by Lrs. Vs.Smt.Kamla Kunwar (1977)1 SCR 578 : (AIR 1977 SC 63).The above said dictum will not be applicable to the present facts of thecase because the Will Ex.B.2 has been proved by examining one of thewitnesses viz. D.W.2 in this case. Only to prove that the testatorAyammal was in sound disposing state of mind on the date of registration,D.W.3, Sub-Registrar, was examined on the side of the defendants. Undersuch circumstances, I do not find any reason to interfere with the well https://hcservices.ecourts.gov.in/hcservices/ considered judgment of the learned first Appellate Court inA.S.No.202/1993 on the file of the Court of the Principal District Judge,Vellore, which does not suffer from any illegality or infirmity. Point isanswered accordingly.8. In the result, the second appeal is dismissed with costsconfirming the decree and judgment in A.S.No.202/1993 on the file of theCourt of the Principal District Judge, Vellore.ssvSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo, 1.The Principal District Judge, Vellore.2.The District Munsif, Gudiyatham.3.The Record Keeper, V.R.Section, High Court, Madras-104.JSK(CO)dcp/26.2.07S.A.No.232 of 1997