R. Suburathinam v. T. Govindaraj & Ors.

allegations/averments in the plaint, the defendants filed the writtenstatement, the gist and kernel of them would run thus:Thirumalai Ammal's husband was Kandasamy Pillai, whosematernal uncle was Subbiah Pillai, who was living in unmarried stateunder the care and custody of Kandasamy Pillai. While so, KandasamyPillai purchased an extent of 25.18 acres including the 'A' scheduledproperty in the name of Subbiah Pillai during the year 1917. Out ofthe total extent of 25.18 acres, an extent of 2.06 acres was acquiredby the Railway Department and the remaining extent of 23.12 acres wasin possession of Kandasamy Pillai, who enjoyed it as absolute ownerand died in the year 1933 leaving behind his widow, the saidThirumalai Ammal @ Seethammal and their only son ThiruvenkadamPillai. After the death of Kandasamy Pillai, the said propertydevolved upon Thiruvenkadam Pillai and his only son GovindarajuPillai. It so happened that after the death of Kandasamy Pillai,Thiruvenkadam Pillai and his son Govindaraju Pillai along withThirumalai Ammal, the widow of Kandasamy Pillai, mortgaged the entireextent of 23.12 acres of land during the year 1933. Even thoughSubbiah Pillai was alive at that time, he never laid any claim overthe said property. 4. On 25.11.1935, the same set of people sold an extent of11.46 acres to third parties and Subbiah Pillai was a consentingparty to the said sale as he signed as a witness. The saidThiruvenkadam Pillai and his son Govindaraju Pillai, enjoyed the suitproperty jointly in their capacity as equal owners till ThiruvenkadamPillai died in the year 1963. As such, the allegations to thecontrary in the plaint are false. Thiruvenkadam Pillai never treatedthe 'A' scheduled property as his self acquired property, but he hadthrown it into the Hindu hotchpot and Thiruvenkadam Pillai and hisson Govindaraju Pillai (D1) became co-parceners, entitled toequal shares in the joint family property. Thiruvenkadam Pillai, on01.02.1963, executed a registered Will bequeathing his share in thesuit properties in favour of defendants 2 and 3 and under the sameWill, he also bequeathed his share in the Companies to Booshanambal,the first plaintiff, and her daughter Devi and grand daughtersSumathi and Premavathi. The said Will was acted upon and under thatWill, the first plaintiff and her descendants derived benefits also.The first plaintiff and her husband Narayana Swamy approached D1during the year 1970 for help and hence they were allowed to occupy aportion of the 'B' scheduled property as permissive occupiers out ofmere sympathy. Accordingly, they prayed for dismissal of the suit.Over and above such prayer for dismissal, the defendants also prayedfor the following reliefs as counter claim:"(a) directing the plaintiffs and their family toclear out of the suit property on or before a date to befixed by this Hon'ble Court, failing which to clear them https://hcservices.ecourts.gov.in/hcservices/ out by a decree of mandatory injunction;(b) directing the plaintiffs those squatting onthe property to pay damages as fixed by this Hon'bleCourt from 01.12.2004 until they clear out of the suitproperty to 2nd defendant;(c) directing the plaintiffs to pay thedefendants the costs of this suit."(extracted as such)5. The plaintiffs filed the reply statement denying andrefuting the averments/allegations in the written statement as wellas in the counter claim. The plaintiffs also denied the verygenuineness of the Will allegedly executed by Thiruvenkadam Pillai.The plaintiffs never admitted that they are only permissive occupiersor gratuitous occupiers of the 'B' scheduled property. Accordingly,they prayed for dismissal of the counter claim. 6. The defendants filed rejoinder, denying and refuting thecontentions of the plaintiffs in the reply statement. Both sidesalso pleaded limitation as against the claim of each other. 7. The trial Court framed the issues. During trial, on theside of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A27were marked. On the side of the defendants, D.Ws.1 to 3 wereexamined and Exs.B1 to B48 were marked.8. Ultimately the trial Court dismissed the suit of theplaintiffs, but partly decreed the counter claim of the defendantsby granting mandatory injunction as against the plaintiffs, to vacatethe 'B' scheduled property within a period of one year.9. Challenging and impugning the dismissal of the plaintiffs'claim and also the granting of the relief mandatory injunction infavour of the defendants, the plaintiffs, filed this appeal onvarious grounds, inter alia thus:The trial Court fell into error in dismissing the suit of theplaintiffs and in granting the relief in favour of the defendants.Without considering the oral and documentary evidence, the trialCourt simply decided the matter. The trial Court failed to hold thatEx.B46, the Will was not proved. Even as per the defendants' case,on the death of Thiruvenkadam Pillai, the first plaintiff,Booshanambal and D1, Govindaraju Pillai, inherited the 'A' and 'B'scheduled properties and each of them were entitled to half share andthe trial Court should not have dismissed the suit. The factum ofjointly running a Dairy Farm in the 'A' scheduled property as put https://hcservices.ecourts.gov.in/hcservices/ forth before the trial Court was not considered by it. Ex.A19, thelease deed executed in favour of Subbiah Pillai would disprove thecase of the defendants' theory. 10. Even assuming Ex.B46 is the genuine Will, as per the saidWill, Thiruvenkadam Pillai bequeathed only his undivided half sharein the suit 'A' and 'B' scheduled properties and he retained theremaining half share with him and on his death, the first plaintiff,Booshanambal and D1, Govindaraju Pillai should be taken as the onesinherited the same and accordingly, if viewed, the plaintiffs wouldbe entitled to 1/4th share in the 'A' and 'B' scheduled properties.However, Ex.B46 is not a genuine Will as it purported to have emergedon 01.02.1963, whereas, Thiruvenkadam Pillai died on 04.02.1963within 72 hours of the emergence of the Will. Hence in such a case,it cannot be taken that Thiruvenkadam Pillai at the time of executingthe said Will was in a sound state of mind. The oral evidence ofP.Ws.1 to 3 and Exs.A2 to 18 and A24 to A26 would clearlydemonstrate and display that the first plaintiff, Booshanambal wasexercising her right over the 'A' scheduled property along with hersons. The oral and documentary evidence also proved that the firstplaintiff along with her family was residing in the 'B' scheduledproperty even long prior to 1970. Accordingly, theappellants/plaintiffs pray for setting aside the judgment of thelower Court and for decreeing the suit for partition and fordismissing the counter claim.11. Heard both sides.12. The parties are referred to hereunder according to theirlitigative status before the lower Court.13. The points for consideration are as follows:(1) Whether Thirumalai Ammal was the absolute owner of the'A' and 'B' scheduled properties as pleaded by the plaintiffs and ifso, in what capacity the plaintiffs claim half share in those suitproperties?(2) Whether there was joint family existed amongThiruvenkadam Pillai and Govindaraju Pillai (D1) and whether the suitproperties happened to be the joint family properties?(3) Whether the Will, Ex.B46 was proved to be a genuine Willby the defendants?(4) Whether the plaintiffs are only permissive occupiers inthe 'B' scheduled property?(5) Whether the plaintiffs are entitled to half share in the https://hcservices.ecourts.gov.in/hcservices/ suit property and accordingly for a preliminary decree for partition?(6) Whether the defendants are entitled for mandatoryinjunction as prayed by them?(7) Whether there is any infirmity in the judgment and decreeof the trial Court?(8) To what relief?POINT NOS.1 AND 2:These two points are taken together for discussion, as they areinter-linked and inter-woven with each other.14. The epitome and the long and short of the contention ofthe rival parties could be set out thus:The relationship among the parties is an admitted one. Theplaintiffs would try to project the case as though the 'A'and 'B' scheduled properties originally belonged to ThirumalaiAmmal, who got it from her paternal side and consequently, she isentitled to the property. Whereas, the defendants would contend thatKandasamy Pillai, the husband of Thirumalai Ammal was the absoluteowner of the suit property and consequent upon his death, it devolvedupon Thiruvenkadam Pillai and his son Govindaraju Pillai (D1), asthey constituted a Hindu joint family and accordingly entitled tohalf share each and that even the half share of Thiruvenkadam Pillaiwas given to D1's descendants by virtue of the Will. Accordingly,the defendants would try to deprive the plaintiffs of any share inthe suit properties.15. At the first instance, it is just and necessary toanalyse as to whether the contention of the plaintiffs thatThirumalai Ammal happened to be the absolute owner of the suitproperties is true. The genealogy as found set out in the plaint isobviously a truncated one. However, it is set out hereunder: https://hcservices.ecourts.gov.in/hcservices/ GENEALOGYThirumalaiammalW/o Kandasamy PillaiThiruvenkadampillaiT.Govindarau Pillai(D1) Boosanambal (died) PlaintiffP.T.Rajan @ Kandasamy @ T.G.Shanmuga SundaramPonnambala Panner Selvam (D3)(D4)Thiakarajan(D2)16. Whereas in the written statement the defendants set outan elaborate genealogy, which is also set out hereunder:Arangaswamy PillaiLakshmanan Pillai Subbiah Pillai Nagammal Meenakshi Papamal (no issues) (no issues) (no issues) Govindaswami (Husband)Two sons and 4 daughters Kandaswami PillaiincludingThirumalai Ammal @ Thirumalai Ammal @Seethammal Seethammal Thiruvenkadam Pillai Govindaraju Pillai Booshanambal D1 (1st plaintiff) 3 sons (D2 to D4) and 4 Daughters (Plaintiffs 2 to 10) https://hcservices.ecourts.gov.in/hcservices/

17. A mere reading of those two genealogies coupled with theoral evidence and documentary evidence available would exemplify thatboth groups tried their level best to gain advantage to thedisadvantage of the other by interpreting the inheritance as pertheir respective genealogies. During trial, ultimately it got boileddown to the following facts that Subbiah Pillai happened to be theson of Arangaswamy Pillai. Subbiah Pillai had one brother by nameLakshmanan Pillai. The said Subbiah Pillai also had three sisters,out of those three sisters, one sister Meenakshi had his son by namethe said Kandaswamy Pillai, the husband of Thirumalai Ammal. Assuch, so far Kandaswamy Pillai is concerned, Subbiah Pillai happenedto be his maternal uncle. In the plaint there is no whisper as inwhat way Thirumalai Ammal @ Seethammal could claim herself as thelegal heir of said Subbiah Pillai. There is also no indication inthe plaint that Subbiah Pillai was the original owner of the suitproperty by virtue of Ex.B1, the sale deed dated 17.07.1917.However, it is the contention of the defendants that the saidKandaswamy Pillai purchased the 'A' scheduled suit property alongwith other properties in the name of his paternal uncle SubbiahPillai as per Ex.B1. As per the genealogy furnished by thedefendants, Thirumalai Ammal happened to be the daughter ofLakshmanan Pillai, the brother of said Subbiah Pillai. As such, thereis no rhyme or reason on the part of the plaintiffs in claiming thatthe said Thirumalai Ammal is the absolute owner of the said 'A'scheduled property through her paternal side.18. However the plaintiffs would submit that as per patta,Ex.P.9, the 'A' scheduled property was treated as the absoluteproperty of Thirumalai Ammal and accordingly the plaintiffs woulddevelop their case that after the death of Thirumalai Ammal, her twochildren, namely D1, Govindaraju Pillai and the first plaintiffBooshanambal, were entitled to half share and accordingly theplaintiffs claim half share.19. At this juncture, the learned Senior Counsel for thedefendants would develop his argument to the effect that once it isfound that the plaintiffs have not come forward with the true factsand details, it is not open for the plaintiffs to cull out facts fromthe defendants' side evidence and try to get a decree for partition;depending upon the facts set out in the plaint alone, the defendantscould take defensive stand in the written statement and as such, thisCourt once comes to the conclusion that the plaintiffs have not comeforward with the whole truth, then the suit has to be dismissed.However, I would like to highlight that such an argument cannot becountenanced. In a suit for partition, admittedly among relatives,simply because the contention of the plaintiffs based on certainfacts cannot be granted, but reliefs could be granted by the Court tocertain extent on some other grounds, taking into account the over https://hcservices.ecourts.gov.in/hcservices/ all and the totality of the evidence available. 20. It is a common or garden principle of law that in apartition suit, the plaintiff is the defendant and the defendant theplaintiff. However, the learned Senior Counsel for the defendantswould submit that if at all the defendants admit that the plaintiffsare entitled to some share, then the question of applying the saidtheory would arise. Once again, I would like to express my view thatsuch an argument put forth on the defendants' side could not becountenanced for the reason that in a partition suit, the plaintiffscannot expect the defendants to admit their claim. Still thepartition suit would continue to be a partition suit only and all theattributes of a partition suit would be applicable.21. It is therefore clear that the contention on theplaintiffs' side that Thirumalai Ammal happened to be the absoluteowner of the suit properties, because she inherited the property fromher paternal side is not at all fortified by either oral ordocumentary evidence. But even the very narration of the case on theplaintiffs' side coupled with the narration of the defendants' sidewould display and disclose, that Thirumalai Ammal @ Seethammal wasenjoying the suit properties along with her husband KandaswamyPillai, who also happened to be the descendant of the commonancestor. As per the version on the defendants' side, KandaswamyPillai can never be taken as the legal heir or descendant of SubbiahPillai, as Subbiah Pillai admittedly happened to be the maternaluncle of Kandaswamy Pillai. No doubt it is not the defendants' casethat Kandaswamy Pillai claimed title over the 'A' scheduled propertyon the ground that he was the legal heir of Subbiah Pillai, but thedefendants would claim that Kandaswamy Pillai purchased from out ofhis own sources, the 'A' scheduled property as per Ex.B1 in the nameof Subbiah Pillai. As such, the onus of proof is on them to provethat Kandaswamy Pillai happened to be the original owner of the 'A'scheduled property as his self acquired property.22. It is worthwhile to point out that neither of the partiestried to press into service the Benami Transaction (Prohibition) Act,1988 and also about the concepts retrospective and retroactiveoperations.23. Be that as it may, the defendants should prove thatKandaswamy Pillai purchased the property in the name of SubbiahPillai as per Ex.B1. The recitals in Ex.B1, the certified copy ofthe sale deed dated 17th July 1917 would evince and evidence that thesaid Subbiah Pillai purchased the 'A' scheduled property along withother items by paying a cash consideration of Rs.5,000/-. As such,absolutely there is no indication in the recitals of Ex.B1 that thereis any semblance of Benami Transaction. https://hcservices.ecourts.gov.in/hcservices/

24. It is quite obvious that Ex.B1 emerged during the year1917 and as correctly pointed out by the learned counsel for theplaintiffs, during the trial, none of the witnesses examined on thedefendants' side could be construed as competent to speak about thealleged Benami transaction, as the transaction took place in theyear 1917. As such, in the absence of any clinching evidencerelating to Benami Transaction, it has to be seen as to whether fromthe other available evidence any such inference could be drawnrelating to Benami. The learned counsel for the plaintiffs wouldplace reliance on Ex.A19, the certified copy of the registered leasedeed dated 15th February 1923 executed by one Kandaswamy Pillai S/oPonniapillai relating to the 'A' scheduled property in favour ofSubbiah Pillai. If really Kandaswamy Pillai purchased the 'A'scheduled property in the name of Subbiah Pillai, certainly Ex.A19during the year 1923 would not have emerged in favour of SubbiahPillai and as such, I could see considerable force in the argumentput forth on the side of the plaintiffs that the theory of Benami asset forth on the side of the defendants is nothing but an untenableplea dished out for the purpose of this case.25. The learned Senior Counsel for the defendants would placereliance on Ex.B3, the certified copy of the mortgage deed executedby Thiruvenkadam Pillai, Govindaraju Pillai (D1) and Thirumalai Ammal@ Seethammal in favour of a third party mortgaging the 'A' scheduledproperty and develop his argument that even during the life time ofSubbiah Pillai, the said Thiruvenkadam Pillai, son of KandaswamyPillai along with others mortgaged the 'A' scheduled property andthat would connote and denote, exemplify and expatiate that the 'A'scheduled property happened to be the exclusive property ofKandaswamy Pillai which came into the hands of his son ThiruvenkadamPillai and Thiruvenkadam Pillai's son Govindaraju Pillai and thatThirumalai Ammal was added only as a formal party in that mortgagedeed.26. Whereas, by way of torpedoing and pulverising theargument as put forth on the side of the defendants, the learnedcounsel for the plaintiffs would advance and fatten up his argumentto the effect that Subbiah Pillai died even in the year 1930; thereis no indication that Subbiah Pillai was alive as on the date ofemergence of Ex.B3; if really Kandaswamy Pillai happened to be theabsolute owner and it allegedly devolved upon Thiruvenkadam Pillaiand his son D1, then there would not have been no necessity foradding Thirumalai Ammal also as one of the parties in the Ex.B3; thereference to one Subbiah as witness in Ex.B2, the sale deed dated 25thNovember 1935 is not proved to be the said Subbiah, the originalowner as contemplated in Ex.B1 and as such the argument as put forthon the side of the defendants is not tenable.27. Whereas, the learned Senior Counsel for the defendants https://hcservices.ecourts.gov.in/hcservices/ would submit that Ex.B2, the certified copy of the sale deed dated25th November 1935 would reveal and convey that the said ThiruvenkadamPillai, D1/ Govindaraju Pillai and Thirumalai Ammal @ Seethammalexecuted the sale deed alienating part of the property covered underEx.B1 and that shows that Subbiah was not the owner and that Subbiahalso signed as a witness in the deed.28. When this Court put a question to the defendants' side asto how they would be justified in contending that the reference madeto one Subbiah as witness in Ex.B2, refers actually to the saidSubbiah, the original owner contemplated in Ex.B1, no plausibleanswer was forthcoming. As such, on the one hand the plaintiffswould contend that Subbiah Pillai died even in the year 1930 andthereafter alone Exs.B2 to B4 emerged. Whereas, the contention ofthe defendants is that even during the life time of Subbiah Pillai,those exhibits emerged and that Subbiah Pillai never objected to anysuch transaction and thereby, he signified and agreed to the factthat he was only a name lender in Ex.B1. 29. The onus of proof is on the defendants to prove theBenami nature of the transaction involved in Ex.B1. But mydiscussion supra would indicate and exemplify that absolutely thereis no shred or shard, iota or molecular extent of evidence toestablish and prove that the property was purchased by KandaswamyPillai in the name of Subbiah Pillai. There should atleast be someexplanation as to what actuated and accentuated, propelled andimpelled Kandaswamy Pillai to purchase such vast extent of propertyin the name of his maternal uncle, who was older than him admittedly.Normally whenever some benami transaction takes place, there would besome hidden reason or some reason behind it. Here, absolutely thereis no plausible reason found detailed and delineated before the Courtas to why Kandaswamy Pillai should purchase the property in the nameof Subbiah Pillai who had no issues. Furthermore, benami nature ofthe transaction cannot be presumed also. Here Ex.P19 would torpedothe very plea of benami as put forth on the side of the defendantsfor the reason that if really Kandaswamy Pillai was the real owner,Subbiah Pillai would have acted during the life time of KandaswamyPillai as owner over the 'A' scheduled property and the other relatedproperties in his capacity as the absolute owner of it. Accordingto the defendants, Kandaswamy Pillai died in the year 1933 and duringhis life time he never exercised his right as absolute owner of the'A' scheduled properties. Exs.B2 to B4 all emerged only after thedeath of Kandaswamy Pillai. However, during the lifetime ofKandaswamy Pillai, one vital document Ex.A19 emerged, but that wasnot in the name of Kandaswamy Pillai, but in favour of SubbiahPillai, the original owner of the 'A' scheduled property as foundmentioned in Ex.B1. As such, the theory of Benami is nothing but anuntenable plea dished out for the purpose of this case. https://hcservices.ecourts.gov.in/hcservices/

30. The issues framed by the trial Court, are far fromsatisfactory, as the trial Court framed five issues, but those fiveissues are generally worded. However, both parties understanding theactual dispute between them, adduced evidence and even before thetrial Court, none of them raised any grievance relating to framing ofissues.31. At this juncture, it is worthwhile to scrutinise therecitals in Exs.B1, B3 and B5 in the chronological order withreference to the date of their respective emergence. Accordingly ifviewed, Ex.B3 is the first document which emerged after the death ofKandaswamy Pillai. It is the certified copy of the mortgage deeddated 5th April 1933 executed by Thiruvenkadam Pillai, GovindarajuPillai (D1) and Thirumalai Ammal in respect of the property referredto in Ex.B1 mortgaging in favour of a third party. The recitals init would refer to the sale deed Ex.B1 in the name of Subbiah Pillai.However the executants would claim that the property had been intheir possession and enjoyment ever since the date of purchase as perEx.B1 dated 17.07.1977, but Ex.P19 would torpedo such a claim for thereasons already set out supra. Had really Subbiah Pillai was aliveat the time of emergence of Ex.B3, the mortgagee would have insistedfor Subbiah Pillai's signature as a consenting party as Ex.B1 wouldrefer to Subbiah Pillai as owner.32. Ex.B2 is the certified copy of the sale deed dated 25thNovember 1935, executed by the same set of executants in respect ofthe property referred to in the sale deed Ex.B1, transferring aportion of it. However, the recitals would not refer to Ex.B1, butthey would claim as though the subject matter of Ex.B2 was acquiredby their own self acquisition. In Ex.B2, at sheet No.4, one nameSubbiah Pillai is found recited without any specification about hisfather's name. Had really been Subbiah Pillai alive at that time andhe had no objection for those executants to exercise their right ofalienation as their own property, certainly he would have signifiedhis consent in the same Ex.B2 and the executants also could haveadded him as one among the executants by incorporating appropriaterecitals. In Ex.B3 which emerged earlier to Ex.B2, there isreference to Ex.B1, but in Ex.B2, there is no such reference toEx.B1. Ex.B4 is the original mortgage deed dated 5th December 1935executed by the same set of executants in respect of the propertyreferred to in Ex.B1. The recitals therein would reveal on par withthe recitals in Ex.B2 and there is no reference to Ex.B1.33. It is a trite proposition of law that preponderance ofprobabilities would govern adjudication in civil cases. Had reallySubbiah Pillai was alive, certainly the parties in favour of whomExs.B2 to B4 emerged would have in all probabilities demanded forSubbiah Pillai signing those deeds as the consenting party, becauseEx.B1 is standing in the name of Subbiah Pillai only and Ex.B19 also https://hcservices.ecourts.gov.in/hcservices/ is in favour of Subbiah Pillai. The persons in favour of whom Exs.B2to B4 executed would have very well verified it also in the RegistrarOffice about Exs.B1 and B19 and since those persons were satisfiedthat Subbiah Pillai was not alive and that Thiruvenkadam Pillai,Govindaraju Pillai and Thirumalai Ammal are in joint possession ofthose properties referred to in those deeds Exs.B2 to B4, they neverinsisted for Subbiah PIllai to be one of the executants or consentingparty in those deeds. In such a case, the contention of theplaintiffs that Subbiah Pillai died even in the year 1930 is wellfounded and the contention of the defendants that Subbiah Pillai diedin the year 1938 is not borne by any records and the documentaryevidence as well as the circumstances highlighted supra are speakingagainst the contention of the defendants relating to the year inwhich Subbiah Pillai died. The very fact that those threeexecutants, namely Thirumalai Ammal, Govindaraju Pillai andThiruvenkadam Pillai all joined together and executed as many asthree deeds admittedly after the death of Kandaswamy Pillai wouldspeak volumes to the fact that Kandasamy Pillai and Thirumalai Ammal@ Seethammal were in joint possession of the suit properties andafter Kandasamy Pillai's death, those three persons continued toenjoy the suit properties and executed those three deeds referred tosupra.34. At this juncture, I would like to point out that both theplaintiffs and the defendants failed to substantiate their respectivepleas relating to the manner in which the suit property came intotheir hands. However, the analysis of evidence supra would clearlyestablish and indicate that the suit properties came into thepossession and enjoyment of Kandaswamy Pillai and his wife ThirumalaiAmmal @ Seethammal. Ex.A9 is the kist receipt book standing in thename of Thirumalai Ammal.35. The learned Senior Counsel for the defendants would pointout that Ex.A9 is not a patta pass book or patta and it only refersto the kist receipts. No doubt, a mere perusal of Ex.A9 would evinceand disclose that it is nomenclatured "fp!;J urPJ g[j;jfk;", whichmeans kist receipt book. However, the real purport of it should beseen. Such kist receipt book was issued to pattadar, namelyThirumalai Ammal and the patta number found mentioned therein is 17,which tallies with the patta relating to the 'A' scheduled property.This Ex.A9 was issued in the name of Thirumalai Ammal during the year1946, as the endorsements therein would start from 01.06.1946onwards. In other words, after the emergence of Exs.B2 to B4 duringthe 1930's, Ex.A9 emerged. Even in the year 1933 and 1935, so tosay, the years in which Exs.B2, B3 and B5 emerged, the executantstherein including Thirumalai Ammal agreed that those propertiesbelonged to them collectively. My discussion supra also wouldindicate and point out that there is nothing to establish thatThirumalai Ammal alone inherited the property from Subbiah Pillai or https://hcservices.ecourts.gov.in/hcservices/ from her paternal ancestors. Hence in such a case, it has to betaken that Thirumalai Ammal, the wife of Kandaswamy Pillai andKandaswamy Pillai enjoyed it jointly and as their own property andafter the death of Kandaswamy Pillai, in the year 1933, KandaswamyPillai's wife Thirumalai Ammal and her son Thiruvenkadam Pillai andhis son Govindaraju Pillai, all jointly enjoyed it. 36. At this stage, the Hindu law has to be applied.Kandawsamy Pillai died in the year 1933 leaving behind his sonThiruvenkadam Pillai and Thiruvenkadam Pillai's son GovindarajuPillai (D1). Wherefore, Thiruvenkadam Pillai and Govindaraju Pillaicould certainly be construed as co-parceners relating to the propertyunder the joint enjoyment of Kandaswamy Pillai and Thirumalai Ammal @Seethammal. It is quite obvious that during the year 1930's, femalemembers had no title over the immovable properties and they had onlyright for their maintenance and also for enjoyment to the limitedextent. The fact remains that the first plaintiff is admittedly thedaughter of Thiruvenkadam Pillai, so to say the sister of D1,Govindaraju Pillai. It is also a trite proposition that the firstplaintiff by her birth cannot be treated as a co-parcener during1930's and it is quite obvious. Kandasawmy Pillai died in the year1933 and at that time, Booshanambal and Govindaraju Pillai (D1) werechildren and Booshanambal, the first plaintiff was the elder sisterof D1 and it is quite clear from Exs.B2 to B4 that Booshanambal wasnot added as a party even though Govindaraju Pillai (D1) was added asone of the parties, represented by Thiruvenkadam Pillai. As such itcould legally be taken that on the death of Kandaswamy Pillai,Thiruvenkadam Pillai and his son D1/Govindaraju Pillai constitutedthe joint family, so to say in this factual matrix it could be termedas co-parcenary and they happened to be the co-parceners entitled tohalf share each in the suit properties in entirety. Thirumalai Ammalfigured in Exs.B2 to B4, because she happened to be the widow ofKandaswamy Pillai and she also never claimed exclusive right in thosedeeds to the exclusion of Thiruvenkadam Pillai and GovindarajuPillai.37. The same logic applied for holding the 'A' scheduledproperty as the joint family property of Thiruvenkadam Pillai andGovindaraju Pillai would also be applicable to the 'B' scheduledproperty. So far 'B' scheduled property is concerned, neither theplaintiffs nor the defendants, referred to in any title deed, but thefact remains that the same couple Thirumalai Ammal and KandaswamyPillai happened to be in possession and enjoyment of the same andafter the death of Kandaswamy Pillai, his son Thiruvenkadam Pillaiand his son D1/Govindaraju Pillai, along with the widow of KandasamyPillai, namely Thirumalai Ammal enjoyed the property. After the deathof Thirumalai Ammal, Ex.B20, the registered mortgage deed dated 10thDecember 1953 executed by the said Thiruvenkadam Pillai and D1,Govindaraju Pillai mortgaging the 'B' scheduled property emerged. https://hcservices.ecourts.gov.in/hcservices/ Ex.B21 is also another registered mortgage deed executed byThiruvenkadam Pillai and his son D1 in respect of the 'B' scheduledproperty that would establish and disclose that they are the co-owners of the 'B' scheduled property.38. In this view of the matter, the names found in revenuerecords, house tax receipts and various other receipts referred to byboth sides lose their significance and such evidence could be termedas pococurante ones which cannot be bed rock for deciding a seriouspartition suit concerning valuable right of parties. A partitionsuit should be decided on sound basis and solid evidence, and not onflimsy evidence. Trite the law is that mere payment of tax or kistor names found in water tax receipts, electricity consumptionreceipts would not confer title. However, that would only help tounderstand that at the relevant point of time the person concerned inwhose name the receipts stand or patta stands, were in possessionand even that is a rebuttable presumption. At this juncture, my mindis redolent and reminiscent of the decision reported in 1998(1) CTC630 [Srinivasan and six others vs. Sri Madhyarjuneswaraswami,Pattaviathalai, Tiruchirapally District by its Executive Officer atPettavaithalai Devasthanam and five others], an excerpt from it wouldrun thus:"The Supreme Court in the decision reported in Stateof Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794observed that the powers of the statutory authorityconstituted under the Act are exercised in a summary mannerand the claims of occupants comes to be determined onlyincidentally and they cannot be equated with the CivilCourts in respect of what they could do or the nature ofrelief that they could grant. A careful analysis of thescheme underlying these abolition laws would go to showthat the vesting on abolition under everyone of theselegislations are subject to the pre-existing rights of theoccupants, except in respect of what are known as public orcommunal properties, meant for common use and the grant ofpatta has been always considered and held to be inrecognition of their pre-existing rights. The provisionsrelating to abolition and vesting of the properties do nothave the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public orcommunal properties and the rights which inhere are thebasis and fundamental rights which entitle a person topreferentially get patta under these legislations and thesame could not be equated to the grant of patta by way ofassignment under the Revenue Standing Orders or under rulesof assignment outside the scope of the statutoryenactments. Similarly, a meticulous analysis of the scheme https://hcservices.ecourts.gov.in/hcservices/ underlying the provisions of the Act dealing with thenature of rights dealt with by the various authorities, themanner in which such authorities adjudicate such rights andthe consequences of such adjudication, disclose that theydo not mean and even intended to be a substitute oralternate mode of resolution of the ordinary civil right ofa citizen or for that matter persons asserting competingclaim, in their attempt to project a claim for patta.Consequently, in our view, the ratio of the decisions ofthe Apex Court reported in State of Tamil Nadu Vs.Ramalinga Swamigal Madam, AIR 1986 SC 794, R.ManickaNaicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and SayyedAli Vs. A.P.Wakf Board, Hyderabad, 1998(2) SCC 642 and thatof a Division Bench of this Court in Ramanujam Kavirayar,T.K. Vs. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal,1988 (2) L.W. 513 and of a learned single Judge of thisCourt in Samsuddin Rowther and another Vs. Avvammal and 2Others, 1992 (1) L.W. 207 would squarely apply and governthe case and consequently, it has to be necessarily heldthat the jurisdiction of the Civil Courts cannot be held tohave been completely ousted or barred at any rate inrespect of adjudication of claims of title and questions orissues which are not obliged or required to be adjudicatedfor the purposes of enforcement of these laws which has, astheir objection and aim, to implement ryotwari settlementin the areas governed by them.39. Accordingly if viewed, Ex.A2, Property tax receipts forthe year 1995 to 2006, Ex.A3, Property tax receipts, Ex.A4,Electricity bill receipts for the year 2004 to 2006, Ex.A5, Water taxreceipt in the name of Thiruvenkadam, Ex.A6, Property tax demandnotice, Ex.A10, Receipt in the name of Murali by Kamadenu Traders,Ex.A13, property tax receipt in the name of Govindaraj, Ex.A14,Electricity receipt in the name of Thiruvenkadam Pillai, Ex.A16,Insurance policy, Ex.A18, Identity card, Exs.A24 and A25, Telephonebills, Ex.A26, Property tax receipt in the name of Govindaraj, wouldnot in any way conclusively be pressed into service in favour of theplaintiffs' plea. Similarly Ex.B6, Notice of Deputy Inspector,Surveyor Office, Pollachi issued in the name of Govindaraju Pillai,Exs.B7 and B9, Tax receipts in the name of Govindaraju Pillai,Ex.B12, Property tax receipts in the name of Panneerselvam andGovindaraj, Ex.B13, Water tax receipts in the name of Govindaraj,Exs.B14 to B16, Water tax receipts in the name of Kandasamy Pillai,Ex.B17, Patta register extract, Exs.B18 and B19, Property taxreceipts in the name of Thiruvengadam Pillai. Ex.B22, Property taxreceipt in the name of Govindaraju, Ex.B23, property tax demandnotice in the name of Govindaraj Pillai, Ex.B24, Property taxreceipts in the name of Govindaraj Pillai, Exs.B29 to Ex.B33,Property tax demand notices in the name of Govindaraj Pillai, Ex.B35, https://hcservices.ecourts.gov.in/hcservices/ Licence in the name of Govindaraj issued by Pollachi Municipality,Ex.B37, Proceedings of Pollachi Municipality, Ex.B38, Order ofPollachi Municipality, Ex.B39, Property tax receipt in the name ofPonnambala Thyagarajan, Ex.B40, Patta pass book in the name ofGovindaraja Pillai and Ex.B41, Japthi notice by Pollachi Municipalityin the name of Govindaraj, all those exhibits cannot be relied on bythe plaintiffs to canvass their case in any manner, in view of thesolid facts found exemplified in the course of my discussion supra.The valuable right of a co-sharer cannot be deprived merely onshowing some tax receipts or patta.40. At this juncture, I would also refer to the decision ofthe Hon'ble Apex Court with reference to Prescriptive title reportedin (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revammaand others)."10. In that context it is relevant to refer to JAPye (Oxford) Ltd. v. United Kingdom wherein the EuropeanCourt of Human Rights while referring to the Court ofAppeal judgment JA Pye (Oxford) Ltd. v.Graham made thefollowing reference:"Lord Justice Keene took as his startingpoint that limitation periods were in principlenot incompatible with the Convention and that theprocess whereby a person would be barred fromenforcing rights by the passage of time wasclearly acknowledged by the Convention (Conventionfor the Protection of Human Rights and FundamentalFreedoms). This position obtained, in his view,even though limitation periods both limited theright of access to the Courts and in somecircumstances had the effect of depriving personsof property rights, whether real or personal, orof damages: there was thus nothing inherentlyincompatible as between the 1980 Act and Article 1of the Protocol".11. This brings us to the issue of mental elementin adverse possession cases – intention....................14. Importantly, intention to possess cannot besubstituted for intention to dispossess which is essentialto prove adverse possession. The factum of possession inthe instant case only goes on to objectively indicateintention to possess the land. As also has been noted bythe High Court, if the appellant has purchased the landwithout the knowledge of earlier sale, then in that case theintention element is not of the variety and degree which is https://hcservices.ecourts.gov.in/hcservices/ required for adverse possession to materialise.18. On intention, Powell v.McFarlane is quiteillustrative and categorical, holding in the followingterms:"If the law is to attribute possession of land to aperson who can establish no paper title to possession, hemust be shown to have both factual possession and therequisite intention to possess ('animus possidendi')" *** ***If his acts are open to more than one interpretationand he has not made in perfectly plain to the world at largeby his actions or words that he has intended to exclude theowner as best he can, the courts will treat him as nothaving had the requisite animus possidendi and consequently as not having dispossessed the owner.***In my judgment it is consistent with principle aswell as authority that a person who originally enteredanother's land as a trespasser, but later seeks to show thathe has dispossessed the owner, should be required to adducecompelling evidence that he had the requisite animuspossidendi in any case where his use of the land wasequivocal, in the sense that it did not necessarily, byitself, betoken an intention on his part to claim the landas his own and exclude the true owner.***What is really meant, in my judgment, is that theanimus possidendi involves the intention, in one's own nameand on one's own behalf, to exclude the world at large,including the owner with the paper title if he be nothimself the possessor, so far as is reasonably practicableand so far as the processes of the law will allow".41. A plain reading of it would show that merely by pointingout that a particular individual is in possession of certain propertyfor a long time, he cannot plead that he acquired prescriptive titleover it and in the case of co-sharers, it is all the more importantthat mere possession by one co-sharer of a joint immovable propertywould not lead to the inference that the right of co-ownership of theco-owner has been ousted. Ex.A27 is the partition deed dated 21stFebruary 1975 which emerged on the defendants' side, and in view ofmy discussion supra, it is having no probative force of its own.Exs.A10 to A12 are relied on by the plaintiffs to disclose anddivulge that even in respect of 'A' schedule property, the plaintiffsand the defendants were in joint enjoyment, as the children of D1 and https://hcservices.ecourts.gov.in/hcservices/ P1 jointly conducted Dairy Farm. 42. Whereas, D.W.1 would try to explain and expoundunsatisfactorily that even though some documents emerged in thatmanner as projected by the plaintiffs in the name of some of theplaintiffs, yet there were no joint possession over 'A' scheduledproperty. While cross examining D.W.1, it was suggested to him thatthe said Dairy Farm was jointly run by the descendants of P1 and D1in one of the line of houses in 'A' schedule property. In fact,D.W.1(D1) would state that even though the receipts relating to theDairy Farm, are in the name of P.W.1, he would try to unsuccessfulyexplain as though the money was given by P1's son and P.W.1 got it inhis name. To the risk of repetition and pleonasm, but without beingtautologous, I would highlight that all these sort of minor evidencedie down in oblivion in view of my finding on solid basis relating tothe origin of the property and how it got devolved and also relatingto the settled law point that one sharer cannot oust the right ofanother co-sharer on flimsy grounds.43. It is therefore crystal clear that Thiruvenkadam Pillaiand Govindaraju Pillai constituted the co-parcenery and each wereentitled to half share in both the 'A' and 'B' scheduled properties.Accordingly, point No.1 is decided to the effect that ThirumalaliAmmal was not the absolute owner of the 'A' and 'B' scheduledproperties as pleaded by the plaintiffs and point No.2 is decided tothe effect that there was joint family existed among ThiruvenkadamPillai and Govindaraj Pillai and the suit property happened to be thejoint family properties.The question arises as to whether Thiruvenkadam Pillaivalidly executed the Will Ex.B46, is being dealt with infra.POINT NO.3:44. Ex.B46 is the original registered sale deed dated 1stFebruary 1963, which is relied on by the defendants who happened tobe the propounders of the Will. The learned Senior Counsel for thedefendants would submit that the said Will is an ancient Will as itis more than thirty years old and in such a case, its due executionshould be presumed and over and above that, in view of the fact thatthe attestors died, the descendants of executants of the Willidentified the signatures of the testator, namely ThiruvenkadamPillai and the signature of the attesting witness was also provedthrough D.Ws.2 and 3. Whereas, the learned Senior Counsel for thedefendants would submit that Ex.B47 is a dubious Will and it has notbeen proved in the way known to law. The analysis of evidencerelating to Ex.B46 is of paramount importance in the facts andcircumstances of this case. D.W.1 (D1) in his chief examination https://hcservices.ecourts.gov.in/hcservices/ affidavit would aver that his father Thiruvenkadam Pillai bequeathedhis half share in the 'A' and 'B' scheduled properties in favour ofthe said beneficiaries and under the same Will, he also bequeathedhis share in Companies which was utilised by P1 and her descendants.45. The learned counsel for the plaintiffs would submit thatabsolutely there is nothing to show that as per the said Will, theplaintiffs were bound by utilising the shares of the deceasedThiruvenkadam Pillai in the Companies and those are all non-existentshares and the said Will is bad on that ground also. A perusal ofthe judgment of the lower Court would demonstrate that there was nofinding by the lower Court that P1 or her descendants asbeneficiaries utilised those alleged shares. When the plaintiffs,clearly challenged the very genuineness of the Will and also recitalscontained therein, it is for the propounder of the Will to produceevidence that the Will was acted upon and that the plaintiffsaccepted the same. But absolutely there is no evidence in thatregard.46. The contention on the defendants' side is that since thetestator could not move to the Registrar Office, the Registrarhimself was summoned to the house and there, the Will was executed.A perusal of Ex.B46 would show that the said deed was purported tohave been signed by the testator Thiruvenkadam Pillai in English.But as correctly pointed out by the learned counsel for theplaintiffs, the signatures are shaky and in the sheet No.1 at thelower portion, the signature is found to be shaky and over writingsare there in the signature itself. Further more, insertions could beseen just above the signature also and it connotes as though afterthe emergence of the signature, those lines were interpolated. Inthe second sheet, similarly the signature is shaky and the last linein that sheet and the signature are overlapping and the sentenceswere found written with sufficient gap which are not found to be inthat manner in the first sheet. Similarly in the third sheet, thesignature is shaky and there are over lappings in the signatureitself. In the fourth sheet also the signature is similarly shaky.The Will is purported to have been written on 1st February 1963 andregistered on 2nd February 1963, but the testator himself died on04.02.1963, so to say within a very short span of time axiomatically.47. As such the learned counsel for the plaintiffsappropriately and appositely, correctly and convincingly put forththe facts that the propounder of the Will has not proved that thetestator was in sound state of mind to execute the Will. In the backside of the first sheet pertaining to registration, the purportedsignature of the testator is found in two places and a mere look atit would display and exemplify as to what must have been the state ofhealth of the signatory. The man who was not in full control of hismind must have put the signature in such a manner. The trial Court https://hcservices.ecourts.gov.in/hcservices/ barely placing reliance on the depositions of P.Ws.2 and 3, thedeceased witnesses' respective sons, simply jumped to the conclusionas though the Will was proved. In fact, D.W.1 himself was not awitness to the Will, but he would even state that subsequently theattesting witnesses told him about it and he expressed his happinessover it. It is the contention of the defendants that the Registrarwas summoned to the house and the Will was presented forregistration. If that be so, then there should be proper compliancewith Chapter IX of the Tamil Nadu Registration Rules.48. At this juncture, I would like to refer to Chapter IX ofthe Tamil Nadu Registration Rules. The relevant provisions areextracted hereunder for ready reference:38. An application for attendance at a privateresidence shall be his writing and shall, in allpossible cases, be signed by the person on whosebehalf attendance is required. It need not bestamped.39. A requisition for attendance at a privateresidence shall be complied with as early as possible.If compliance would interfere with the regularbusiness of the office or involve the closing of theoffice and if the case does not fall under the provisoto section 31 of the Act, a commission should, ifpracticable, be issued. Every such attendance by aSub Registrar or under his orders shall be reported tothe Registrar within 24 hours."49. When I raised a query as to whether chapter IX of theTamil Nadu Registration Rules were complied with, actually there isno plausible answer from the defendants' side. On the back of thefirst sheet of Ex.B46, the Will, it is found recorded thus:"1963 tUlk; gpg;uthp khjk; 2 njjp gfy; 9/10kzpfSf;fpilapy; Cj;Jf;Fspf;Fr; nrh;e;j K:f;fug;gps;isahh;nfhtpYf;F bjd;g[wKs;s njhl;lj;Jr;rhisahfpa jd;thr!;jyj;jpy; jhf;fy; bra;J fl;lzk; U:/31/00 brYj;jpjath;/"It therefore connotes as though the very Will was presented byThiruvenkadam Pillai himself at his residence, but there is noindication that chapter IX of the Tamil Nadu Registration Rules havebeen complied with and the necessary endorsement was made to thateffect. As such, absolutely there is no endorsement found in Ex.B46,the Will, about the registering officials having attended theresidence of the testator and about the registration of the Will.There is nothing to indicate that the registering official was https://hcservices.ecourts.gov.in/hcservices/ summoned to the house for such registration. Head really anapplication was filed for summoning the registration authority, thenthere should have been detail narration of the said fact in thewritten statement or in the rejoinder or in the deposition of P.W.1.When the plaintiffs are challenging the genuineness of the Will, thedefendants were duty bound to summon the registration department toproduce the necessary application for summoning the registrationofficial for registration. In fact, Rule 38 would contemplate thatsuch application without stamp should have been signed by the personon whose behalf the attendance is required. There is nothing to showthat Thiruvenkadam Pillai signed in any such application. Noreference to the application number is also found in the deed. Thereis also no endorsement that the registering official got himselfsatisfied about the testator's consciousness to present the Will forregistration at his residence. In this case, these factors gainprominence because according to the defendants, both the attestingwitnesses died and D.W.1 himself would state that only the attestingwitnesses, namely K.T.Thomas and Chidambaram Pillai brought it fromthe Registration Office.50. I am at a loss to understand as to how the attestingwitnesses could lift the Will from the Registration Office. In fact,no disinterested party who is conversant with the signature ofThiruvenkadam Pillai identified before the trial Court the signatureof Thiruvenkadam Pillai. Neither D.W.2 nor D.W.3 identified thesignature of Thiruvenkadam Pillai as they are only the respectivesons of the attestors. Both D.Ws.2 and 3 did not identify thesignatures of the testator Thiruvenkadam Pillai, but they onlyidentified their respective fathers' signature as attestingwitnesses. However, D.W.2 himself during cross examination wouldstate that in Ex.B46 the purported signatures of Thiruvenkadam Pillaidiffer from one sheet to another sheet. There is nothing to evinceand connote as to why any independent witness was not examined toidentify the signature of Thiruvenkadam Pillai. These vital pointshave not been considered by the lower Court. By referring to a fewdecisions, but failing to consider other vital relevant decisions inthis regard, simply the lower Court jumped to the conclusion thatbecause the sons of the attestors' identified their respectivefather's signatures, he believed the Will. Here as per thepropounders, the Will was registered in a particular manner, so tosay, by summoning the registration official to the house, butabsolutely there is no endorsement to that effect and that itselfwould clearly expose that the Will is not a genuine one. Simplybecause the Will is a registered one, it cannot be taken for gospeltruth that the Will was genuinely executed. 51. Further more, in the wake of such absence of specificendorsement referred to supra, the presumption as contemplated underSection 90 of the Indian Evidence Act would not be attracted. The https://hcservices.ecourts.gov.in/hcservices/ fact also remains that the day after the next day after theregistration of the Will, so to say on 4th February 1963 itself thetestator died and his signatures as pointed out by me were shaky andthere are insertions in the Will, corrections and overwritings andthe purported signatures of the testator himself contain overwritings and in such a case, it cannot be held that the burden iscast upon the propounder of the Will to prove that the testatorexecuted the Will in a sound state of mind as has been discharged.Even though in the Will there is some reference about the bequeathingof testator's share in a Company, nevertheless, there is no evidencein that regard. As such, the learned counsel for the plaintiffs isright in his argument that purely for the purpose of namkevastecompliance with the legal proposition that there should be provisionfor the daughter also, the Will was written in such a manner. 52. During the year 1963, there is nothing to disclose andhighlight as to what made the testator to deprive the first plaintiffof her share in Thiruvenkadam Pillai's property. It is quite obviousthat as on 04.02.1963, the date of death of the testator, the firstplaintiff, Booshanambal is one of the legal heirs of ThiruvenkadamPillai entitled to his half share in the joint family propertycomprised of Thiruvenkadam Pillai and his son Govindaraju Pillai(D1). It is therefore clear that the defendants with an intention todeprive the plaintiffs of her 1/4th share in the 'A' scheduledproperties prepared such a Will in such a perfunctory manner, whichcannot be upheld as a genuine one.53. At this juncture, I would like to refer to the followingdecisions relating to the proof required relating to proving of theWill. (i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others](ii)2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii)2005(1) CTC 443 [Sridevi and others vs.Jayaraja Shetty and others](iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others](v)1989 (1) L.W.396 [Nagarajan and 3 others vs. https://hcservices.ecourts.gov.in/hcservices/ Annammal](vi)AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another](vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others](viii)AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others](ix)2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy](x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others](xi)2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others](xii)2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]As such a plain reading of those decisions would highlight anddisclose that it is the bounden duty of the propounder of the Will toprove the state of mind of the testator to dispose of the property.But in this case, in the wake of those glaring defects andirregularities, it cannot be held that the propounder of the Willproved the due execution of the Will by the testator.54. The learned Senior Counsel for the defendants cited thedecision of this Court reported in AIR 1960 Madras 283 [Nammalwar andothers v. Appavu Udayar and other], an excerpt from it would runthus:"5. Appavu Udayar died on 31st July 1902. Thatis the date on which he is said to have executed thecodicil on the back of the registered will, Ex.A1.Nobody questions the genuineness of the will. It issaid that all the attestors to codicil,-- there arethree of them -- were dead on the date of the suit. Thewriter also was dead. This fact is not disputed. The https://hcservices.ecourts.gov.in/hcservices/ document, Ex.A1, on the back of which is written thecodicil, was produced by the Land Mortgage Bank,Turichirapalli, with whom the 2nd defendant had lodged itin connection with a transaction which he had with theBank. The document is certainly more than 30 years oldand it has been produced from custody.Under the circumstances, the presumption arisingunder S.90 of the Evidence Act can be drawn as to thedue execution of the document and attestation of it.The only two circumstances relied on by Mr.RamamurthiAiyar as negativing the presumption are that the codicilwas not published till 1930, when for the first time itis mentioned in the surrender deed, Ex.A.2 and thedocument was not executed on a separate piece of paper,but appears to be endorsed on the last page in the will.Neither of them, in our opinion, is sufficient to rebutthe presumption arising under S.90 of the EvidenceAct. ...."55. The learned Senior Counsel for the defendants placedreliance on the cited decision to drive home the point, since theemergence of Ex.B46, thirty years elapsed, and as such, it should betaken as a genuine Will. However, the learned counsel for theplaintiffs would cite appropriately and appositely, the recentdecision of the Hon'ble Apex Court reported in 2009 (3) SCC 687[Bharpur Singh and others v. Shamsher Singh], an excerpt from itwould run thus:"19. The provisions of Section 90 of theEvidence Act, 1872 keeping in view the nature of proofrequired for proving a will have no application. A willmust be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of theEvidence Act, 1872. In the event the provisions thereofcannot be complied with, the other provisions containedtherein, namely, Sections 69 and 70 of the Evidence Actproviding for exceptions in relation thereto would beattracted. Compliance with statutory requirements forproving an ordinary document is not sufficient, asSection 68 of the Evidence Act postulates that executionmust be proved by at least one of the attestingwitnesses, if an attesting witness is alive and subjectto the process of the court and capable of givingevidence."56. A bare perusal of it would make the point clear that thedefendants cannot place reliance on Section 90 of the Indian EvidenceAct and claim that they are absolved from the responsibility from https://hcservices.ecourts.gov.in/hcservices/ proving the due execution of the Will by the testator as though it isan ancient document. The Hon'ble Apex Court clearly andcategorically mandated that Section 90 of the Indian Evidence Actcannot be taken as a shelter by the propounder of the Will, but hehas to prove strictly in accordance with Section 63(c) of the IndianSuccession Act, 1925 and Section 68 of the Indian Evidence Actcoupled with Sections 69 and 70 of it, as the case may be.57. Not to put too fine a point on it, simply because a Willis proved to be of thirty years old, it cannot be presumed that theWill was executed by the testator in a sound state of mind,satisfying all the requirements of a genuine Will. There is also noindication in this case that the said Will was executed and actedupon by the plaintiffs. 58. The learned counsel for the plaintiffs would alsocorrectly submit and contend that the plaintiffs were not aware ofsuch a Will before the dispute started between them. He would alsoconvincingly argue that the plaintiffs are in possession of the 'B'scheduled property even before 1970 and not from 1970 as falselyprojected by the defendants. He would place reliance on Ex.A15 , thebirth certificate of the son of the first plaintiff which would showthat when the son of the first plaintiff was born on 26th May 1960,the first plaintiff was residing in the 'B' scheduled property only.Ex.A16, the Insurance policy issued in the name of the husband of thefirst plaintiff would also exemplify that during the year 1967, P1and her husband were staying in the 'B' scheduled property. Ex.A17is the news item relating to the death of the first plaintiff'shusband and the same was published on 18.12.1986 in the newspaperthat the first plaintiff's husband died only when he was residing inthe 'B' scheduled property. As such, the first plaintiff by her oraland documentary evidence clearly established that the first plaintiffeven before 1960 started living in the 'B' scheduled property. 59. It is also clear that the plaintiffs have alsoestablished that the Dairy Farm was run by the descendants of thefirst plaintiff and D1, wherefore, it cannot be stated that theplaintiffs acknowledged and acquiesced to the Will, Ex.B46.60. In the wake of the settled proposition of law, theevidence of D.W.1 if analysed it is explicitly and palpably clearthat even as per his version, Thiruvenkadam Pillai was affectionatetowards the first plaintiff as well as D.W.1. Before the execution ofthe Will by the testator, he was sick for four months, but he was nothospitalised, nonetheless he took treatment. D.W.1 would state thatduring the year 1963, the testator was sixty years old.61. At this juncture, I would like to extract hereunderSection 69 of the Indian Evidence Act: https://hcservices.ecourts.gov.in/hcservices/ "69. Proof where no attesting witness found.-If no such attesting witness can be found, or if thedocument purports to have been executed in the UnitedKingdom, it must be proved that the attestation of oneattesting witness at least is in his handwriting, andthat the signature of the person executing thedocument is in the handwriting of that person." (emphasis supplied)62. Section 69 of the Indian Evidence Act contemplates notonly proving that atleast one of the attesting witnesses' signatureis that of the witness's signature, but also proving that thesignature of the testator is that of him. Obviously andaxiomatically, D.W.1 is an interested witness as the beneficiariesunder that Will is his own descendants for whom he is litigatingalong with them. As such it cannot be countenanced that thedefendants have proved the Will.63. The learned counsel for the plaintiffs also cited thefollowing decision of the Hon'ble Apex Court reported inAIR 2007 SC 614 [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao andothers], an excerpt from it would run thus:"31. Section 63 of the Indian Evidence Act laysdown the mode and manner of execution of an unprivilegedwill. Section 68 of the Evidence Act postulates the modeand manner of proof of execution of document which isrequired by law to be attested. It inunequivocal terms states that execution of will must beproved at least by one attesting witness, if an attestingwitness is alive subject to the process of the court andcapable of giving evidence. A will is to prove what isloosely called as primary evidence, except where proof ispermitted by leading secondary evidence. Unlike otherdocuments, proof of execution of any other document underthe Act would not be sufficient as in terms of Section 68of the Evidence Act, execution must be proved at least byone of the attesting witnesses. While making attestation,there must be an animus attestandi, on the part of theattesting witness, meaning thereby, he must intend toattest and extrinsic evidence on this point is receivable.32. The burden of proof that the will has beenvalidly executed and is a genuine document is on the https://hcservices.ecourts.gov.in/hcservices/ propounder. The propounder is also required to prove thatthe testator has signed the will and that he had put hissignature out of his own free will having a sounddisposition of mind and understood the nature and effectthereof. If sufficient evidence in this behalf is broughton record, the onus of the propounder may be held to havebeen discharged. But, the onus would be on the applicantto remove the suspicion by leading sufficient and cogentevidence if there exists any. In the case of proof ofwill, a signature of a testator alone would not prove theexecution thereof, if his mind may appear to be veryfeeble and debilitated. However, if a defence of fraud,coercion or undue influence is raised, the burden would beon the caveator. (See Madhukar D. Shende v. Tarabai AbaShedage (2002) 2 SCC 85 and Sridevi v. Jayaraja Shetty andOrs. (2005) 8 SCC 784]. Subject to above, proof of a willdoes not ordinarily differ from that of proving any otherdocument.33. There are several circumstances which wouldhave been held to be described by this Court as suspiciouscircumstances:(i) when a doubt is created in regard to thecondition of mind of the testator despite his signature onthe will;(ii) when the disposition appears to be unnaturalor wholly unfair in the light of the relevantcircumstances;(iii) where propounder himself takes prominentpart in the execution of will which confers on himsubstantial benefit."64. A plain reading of those excerpts would clearlydemonstrate that the evidence of D.Ws.1 to 3, in the wake of thediscrepancies found in the Will cannot be held to be sufficient asthe ones capable of proving the genuineness of the Will. Here as hasbeen correctly pointed out by the learned counsel for the plaintiffs,the very recital in the Will itself is unnatural because the entirehalf share of the testator in the immovable properties, namely 'A'and 'B' scheduled properties were given to D1's descendants, whereas,not even a bit of 'A' and 'B' scheduled properties, was given to P1or her descendants and that really is a suspicious circumstance. As https://hcservices.ecourts.gov.in/hcservices/ has been already highlighted above, even the so called shares are notfound to be the ones which existed at all. As such, as per thedecision cited supra, the propounders cannot be held to havedischarged their burden in proving the Will.65. The learned counsel for the plaintiffs cited thefollowing decision of this Court reported in 1997 (3) LW 673[Govindan Chettiar (Died) v. Akilandam alias Sethalakshmi and 24others]. This decision is also relating to proving of the Will andit is to the effect that the signature of the testator should beproved. But as has been pointed out supra, here the signature of thetestator has not been proved and that too in the wake of the murkyevidence available.66. A mere reading of the lower Court's judgment clearlydemonstrates that all these drawbacks in the Will have not been takeninto account by the lower Court and without applying the lawproperly, simply jumped to conclusion that Will is a valid one. 67. The trial Court in paragraph 57 of its judgment in acryptic manner without adhering to the law points involved inanalysing the impugned Will, simply jumped to the conclusion asthough P.Ws.2 and 3, the respective sons of the attestors' deposedabout the attestors' signatures and that the Will is deemed to havebeen proved. The trial Court miserably failed to take intoconsideration the important ingredients of Section 69 of the IndianEvidence Act. A plain reading of it would reveal that the signatureof the testator also must be proved. Here, the trial Court in itsjudgment never took into consideration the said fact. It is curiousto note that even D.W.1 never in his deposition stated that thesignature found in the said Will is that of his father. D.W.1(D1)would claim that he was not present at the time of the emergence ofthe Will. However, he would candidly and categorically admit thatfor four months anterior to the emergence of the Will, the testatorwas suffering from ill health. No steps have been taken to examinethe Doctor who treated the testator during the said fourth months'time. Even though P.W.1 candidly admitted that medical treatment wasgiven to the testator for those four months by keeping him in thehouse itself, but without admitting in hospital, there is no adequateexplanation for the differences among the signatures found in severalsheets of the Will. There is nothing to expound and explain as towhy certain sentences were huddled together at the end of the Will. 68. D.W.1, the son with whom the testator lived would deposein the following words:"rhl;rpfshf jhk!; kw;Wk; rpjk;guk;gps;is Mfpnahhplk;*vjw;fhf vd; mg;gh capy; vGjpdhh;* vd;W nfl;nldh vd;why; https://hcservices.ecourts.gov.in/hcservices/ mt;thW nfl;ftpy;iy/ mg;ggh capy; vGjpitj;jhh; vd;W mth;fs;brhd;d nghJ *buhk;gre;njhc&d;* vd;W ehd; brhd;ndd;/D.W.1's deposition as extracted supra would project and display,convey and evince as though D.W.1 was not at all in any way aware ofthe Will and on Thomas and Chidambaram Pillai having informed D.W.1about the same, he came to know of it. The realities of life shouldbe taken into consideration while interpreting such evidence of awitness. It is something totally unimaginable even byphantasmagorical thoughts, that a son with whom the father lived, andexecuted the Will and got it registered by summoning the registeringofficial to the residence, could plead lack of knowledge of thosefacts. No more elaboration in this regard is required to highlightas to how D.W.1 has not come forward with truth relating to thatWill.69. In paragraph 64, the trial Court even though referred tothe plea on the side of the plaintiffs relating to the jointpossession of the 'A' scheduled property by conducting Milk DairyFarm therein, the discussion is only towards 'B' scheduled property.As such, the trial Court was wrong in giving a finding that the Willis a valid one. The trial Court also fell into error in notrecognising the right of the first plaintiff in the share of thedeceased Thiruvenkadam Pillai. Accordingly, the plaintiffs areentitled to mesne profits from the date of the suit, subject to theirown liability also to account for the income if any they derived fromthe suit properties.70. In the result, the Will is held to have been not provedas per law. Accordingly, this Court holds that half share ofThiruvenkadam Pillai in the 'A' and 'B' scheduled properties devolvedupon P1 and D1 equally and accordingly, the first plaintiff wasentitled to 1/4th share in both 'A' and 'B' scheduled properties andconsequently on the death of P1, her legal heirs, P2 to P10 areentitled to her 1/4th share.Accordingly, point No.3 is decided to the effect that theWill was not proved by the propounders.POINT Nos.4 TO 7:71. In view of the ratiocination adhered to above, the trialCourt was not justified in issuing mandatory injunction so as toevict the plaintiffs from the 'B' scheduled property. 72. In the result, the judgment and decree of the lower Courtis set aside and the original suit is decreed as under: https://hcservices.ecourts.gov.in/hcservices/ The plaintiffs are entitled to 1/4th share in'A' and 'B' scheduled properties and accordingly theyare entitled to seek for partition by filing a finaldecree application. They are also entitled to seek forappointment of an Advocate Commissioner to get the suitproperties divided by metes and bounds for allotting1/4th share in each of the 'A' and 'B' scheduledproperties. The counter claim of the defendants isdismissed in toto. The plaintiffs are at liberty to getappointed a Commissioner during final decree decreeproceedings for assessing the income accrued from 'A'and 'B' scheduled properties from the date of suit tillallotment of the respective shares to the partiesconcerned. The lower Court on taking evidence isempowered to direct who should pay in favour of theother the income so assessed.In the result, this appeal is allowed accordingly, and thecross objection stands dismissed. However, there will be no order asto costs.Consequently, connected miscellaneous petitions are closed.Sd/-Asst. Registrar/true copy/Sub Asst. RegistrargmsTo1.The Additional District Judge,(Fast Track Court No.2), Coimbatore.2.The Section Officer,VR Section, High Court,Madras.+1cc to Mr.S.Senthilkumar, Advocate Sr 36325BV(CO)km/3.9.A.S.No.533 of 2007