Sridhar v. Tmt.Shanthi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 14-07-2009CORAM:THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANANDTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAA.S.NO.799 OF 20021.Sridhar2.Mohan...Appellants/Defendants 3 & 4Vs.1.Tmt.Shanthi2.Tmt.Jagadhambal3.Tmt.Naghapushpam ...Respondents/Plaintiff 1st Defendant/2nd DefendantFor Appellants :: Mr.T.V.KrishnamachariFor Respondent s :: Mr.G.Muthukrishnan for R.1Prayer: Appeal suit is preferred against the judgment and decreedated 24.9.2002 made in O.S.NO.102 of 2000 on the file of AdditionalDistrict Court (Fast Track Court No.1) at Chengalpattu. JUDGMENTK.RAVIRAJA PANDIAN,J.The appeal is filed by defendants No.3 and 4 against thejudgment and decree dated 24.9.2002 made in O.S.No.102 of 2000 on thefile of the Additional District Court (Fast Track Court NO.1) atChengalpattu. 2. The suit was filed for partition and separate possession of6/10th share of the plaint schedule property and also for mesneprofits. The undisputed facts rather the admitted facts are that oneVedachala Naicker was the owner of the plaint schedule property. OneKanniammal was his wife. They had no issues. Vedachala Naicker underEx.A.1 dated 29.9.1946 executed a settlement deed in favour of hiswife Kanniammal and one Jayaram Naicker, his brother-in-law inrespect of the plaint schedule property. The said Vedachala Naickerdied in the year 1952. During his life time, after Ex.A.1, and duringthe life time of Kanniammal and Jayaram Naicker, the properties were https://hcservices.ecourts.gov.in/hcservices/ enjoyed jointly by Kanniammal and Jayaram Naicker. Jayaram Naickerdied on 21.10.1972. Jagadhambal – first defendant is the wife ofJayaram Naicker. Defendants No.2 to 4 and the plaintiff are the legalheirs of Jayaram Naicker. The plaintiff Shanthi filed the above suitfor partition of 6/10th share and mesne profits on the ground thatafter the death of Vedachala Naicker, Kanniammal took her in adoptionand as such she is the adopted daughter of Kanniammal. Being theadopted daughter of the deceased Kanniammal, she is entitled to theentire half share of Kanniammal in the suit property. In respect ofthe other half share, she is entitled to 1/5th share, being thedaughter of Jayaram Naicker. Thus, she is entitled to 6/10th share ofthe suit property. The further case of the plaintiff is that ItemNos.1 and 2 of the properties are house properties deriving rentalincome of Rs.20,000/- per month. She is entitled to 6/10th share fromthe income of the house property.3. The first defendant-mother of the plaintiff and defendantsNo.3 and 4 – brothers of the plaintiff filed written statement, whichwas adopted by the second defendant, contending that after the deathof Vedachala Naicker, the suit properties were jointly enjoyed byKanniammal and Jayaram Naicker. After the death of Jayaram Naicker on21.10.1972, Kanniammal lived along with defendants No.1,3 and 4 andthey only had taken care of her. On 23.2.1988, when Kanniammal was ina sound disposing state of mind bequeathed her half share in theplaint schedule property to defendants No.3 and 4 under Ex.B.3 Will.The first and second defendants executed release deeds releasing theright over the suit property in favour of defendants No.3 and 4 underrelease deeds dated 31.3.1999 and 3.8.1998. It is the furtherdefence of the defendants that they have paid a sum of Rs.75,000/-and cement and steel to the value of RS.25,000/- to the plaintiff inlieu of her 1/10th share in the suit property. After receiving thesaid sum and cement and steel, the plaintiff abandoned her right overthe property as per the advice of one S.S.Mani in the year 1995.Thereafter defendants No.3 and 4 are in possession and enjoyment ofthe property and the first and second items of the property are letout to one Jayaseelan and Gnanaprakasam respectively. However, thoseproperties were constructed by obtaining loan from the saidJayaseelan and Jnanaprakasam in a sum of Rs.3,00,000/- andRs.1,50,000/- respectively. As such, the plaintiff is not entitled toany partition in the suit property and the suit has to be dismissed. 4. The trial Court after considering the evidence let in tosustain the case of the respective parties, has held that the plea ofadoption put forth by the plaintiff was not proved and further heldthat the suit properties were jointly enjoyed by the plaintiff anddefendants. The plea of defendants that the property has beenbequeathed in favour of defendants No.3 and 4 has also been negativedby the trial Court as the Will has not been proved as per law andheld that the plaintiff is entitled to 1/5th share in the property https://hcservices.ecourts.gov.in/hcservices/ of Jayaram Naicker. As Kanniammal died intestate, in respect of theproperty of Kanniammal also, the plaintiff is entitled to 1/5h share.As such, a preliminary decree has been granted for 2/10th share ofthe suit property. Aggrieved by that decree, the present appeal hasbeen filed by defendants No.3 and 4.5. On behalf of the appellants, it is contended that when theplaintiff has come forward with false claim that she was the adopteddaughter of Kanniammal and trial Court having found that the claim isnot sustainable ought to have dismissed the suit in its entirety bytotally eschewing the evidence of P.w.1- the plaintiff. The trialCourt has not appreciated the facts of plaintiff relinquishing herright after getting a sum of Rs.75,000/- in cash and cement and steelto the value of Rs.25,000/- for the purpose of putting up her ownhouse, in a proper perspective. The finding that Ex.B.3 Will is notgenuine is also in accordance with law. 6. The respondents argued for sustaining the decree. 7. Heard the argument of the learned counsel on either side andperused the materials on record.8. It is true that the plaintiff has projected the case as ifshe was taken in adoption by Kanniammal during her life time. As perthe Hindu Adoption and Maintenance Act, when a plea of adoption isput forth, the requisites of a valid adoption under Section 6 have tobe proved by the person who put forth such plea. No adoption shall bevalid unless (i) the person adopting has the capacity, and also theright, to take in adoption, (ii) the person given in adoption has thecapacity to do so; (iii) the person adopted is capable of being takenin adoption and (iv) the adoption is made in compliance with theother conditions mentioned in the Chapter II of Hindu Adoptions andMaintenance Act, 1956. 9. In this case, the first defendant is none other than themother of the plaintiff, who in her evidence as D.W.1 categoricallydenied the factum of adoption. Even the customary adoption pleadedhas not been proved by letting in cogent evidence by the plaintiff-P.W.1. Of course, P.W.2 deposed to the effect that the saidKanniammal used to say that he was also her son as she taken inadoption of Shanthi. The said evidence cannot be regarded as evidencefor proving the factum of giving in adoption and taking in adoptionas required under the law. The said evidence rather also cannot beregarded as establishing a customary mode of taking in adoption.Thus, the plea of adoption has been rightly rejected by the trialCourt, but being a daughter of Jayaram Naicker and the legal heir ofKanniammal, despite the rejection of plea of adoption put forth bythe plaintiff, she is entitled to 1/5th share from each ½ share ofthe plaint schedule properties. Hence, the first contention raised https://hcservices.ecourts.gov.in/hcservices/ has to be rejected as the same is raised for the sake of appeal.10. In respect of the second contention that the plaintiff hasrelinquished her right of 1/5th share in the property of JayaramNaicker after receiving a sum of Rs.75,000/- and steel and cement ofvalue of Rs.25,000/- for putting up her house in the year 1995 in thepresence and as per the advice of one S.S.Mani has not beenestablished by the defendants by any acceptable evidence. The firstdefendant as D.W.1 and the second defendant as D.W.2 have spoken toin their evidence that the plaintiff has agreed to relinquish her1/5th share in the property of Jayaram Naicker after receivingRS.75,000/- cash and steel and cement worth about Rs.25,000/-,however, refused to do so. Except their evidence, it is admitted thatno documentary evidence is produced to establish the said advancingof money and material. Even S.S.Mani, in whose presence and on whoseadvice, the plaintiff was alleged to have received the money andagreed to relinquish her right has not been examined. The defendantshave not been taken any pain to let in evidence that during therelevant time the plaintiff was constructing a house. In the absenceof any evidence, much less, worthy evidence to establish theircontention, we are of the view that the trial Court has rightlyrejected the plea of defendants as not established and we do not findany irregularity.11. In respect of the third contention as to the genuineness ofEx.B.3 Will, the available evidence on record has established that atthe time of execution of Ex.B.3 Will, the deceased Kanniammal was notin a sound disposing state of mind. P.W.3, an independent witnesswho is an auto driver has stated that he has taken the deceasedKanniammal to the Registrar's Office at the request of defendantsNO.1,3 and 4. During that time, she was not in a disposing state ofmind. Defendants No.3 and 4 have affixed Kanniammal's thumbimpression in the Will. He signed as a witness at the request ofD.W.1 – Jagadhambal. The beneficiaries are not only available, butalso took active part in the execution of the Will and also signed aswitnesses. Those circumstances can only be regarded as suspiciouscircumstances. 12. In the case of present nature, the line of judgments of theApex Court say in one voice that the onus of proving the Will is onthe propounder. In the absence of suspicious circumstancessurrounding the execution of the Will, proof of testamentary capacityand the signature of the testator as required by law is sufficient todischarge the onus. Where however there are suspicious circumstances,the onus is on the propounder to explain them to the satisfaction ofthe court for the court to accept the Will as genuine. Even wherecircumstances give rise to doubts, it is for the propounder tosatisfy the conscience of the court. There must be real, germane andvalid suspicious features and not fantasy of doubting mind. The https://hcservices.ecourts.gov.in/hcservices/ suspicious circumstances may be as to the genuineness of thesignatures of the testator, the condition of the testator’s mind, thedispositions made in the Will being unnatural, improbable or unfairin the light of relevant circumstances, or there might be otherindications in the Will to show that the testator’s mind was notfree. In such a case the court would naturally expect that alllegitimate suspicions should be completely removed before thedocument is accepted as the last Will of the testator. If thepropounder himself takes a prominent part in the execution of theWill which confers a substantial benefit on him, that is also acircumstance to be taken into account, and the propounder is requiredto remove the doubts by clear and satisfactory evidence. 13. The legal requirement in terms of sections 63 of the IndianSuccession Act, 1925 and 68 of the Indian Evidence Act, 1872 is nowwell settled. A Will like any other document is to be proved interms of the provisions of the Indian Succession Act and IndianEvidence Act. The testamentary capacity of the propounder must beestablished. The execution of the Will by the testator has to beproved. Atleast, one attesting witness is required to be examinedfor the purpose of proving the execution of the Will. However, it isalso required to be shown that the Will has been signed by thetestator with his free Will and that at the relevant time he was inthe sound disposing state of mind and understood the nature andeffect of disposition. It is also required to be established that hehas signed the Will in the presence of two attesting witnesses, whoattested his signature in his presence or in the presence of eachother. The deprivation of due share by the natural heirs by itselfis not a factor, which would lead to the conclusion that thereexisted suspicious circumstances. But the background of the factswould tilt to the balance otherwise. When a will is prepared andexecuted under circumstances which raise the suspicion of the Court,it lies on the propounders not merely to prove the execution of thewill, in the sense that it was signed by the testator, but also toadduce evidence which removes such suspicion and to satisfy the Courtthat the testator knew and approved of the contents of the Will, videSadachi Ammal v. Rajathi Ammal, AIR 1940 Mad 315, Indu Bala Bose v.Manindra Chandra Bose, (1982) 1 SCC 20), Guro (Smt) v. Atma Singh,(1992) 2 SCC 507, S. Venkatachala Iyengar v. B.N. Thimmajamma, AIR1959 SC 443, Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR1962 SC 567, Savithri v. Karthyayani Amma, (2007) 11 SCC 621),Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369. Ramabai Padmakar Patilv. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, P.P.K.GopalanNambiar V. P.P.K.Balakrishnan Nambiar, AIR 1955 SC 1852, PushpavathiV. Chandraraja Kadamba, AIR 1972 SC 2492, Rabindra Nath Mukherjee v.Panchanan Banerjee, AIR 1995(4) SCC 459 and Daulat Ram v. Sodha,(2005) 1 SCC 40. https://hcservices.ecourts.gov.in/hcservices/

14. Learned counsel for the appellants relied on two decisionsof this Court in the case of SAROJA VS. CHENNIMALAI, 2003(4) CTC 330and DR.A.RAVIKUMAR VS. M.SAVITHIRI, 2006(3) CTC 720 in support of thecase of the appellants to prove the execution of the Will. InSaroja's Case, though Will was admittedly executed by the testatorin 1972, the same was not produced before the Court and only thesubsequent Will executed in 1979 was produced by the second daughter-in-law claiming share in property. One attesting witness admitted hissignature in the Will but denied execution of Will by testator andboth attesting witnesses deposed against propounder of Will. Thesonof second daughter-in-law who was also beneficiary under 1972 Willand whose share got reduced under 1979 Will deposed that testatorexecuted Will in 1979 and the Sub Registrar had deposed that bothattesting witnesses identified testator and signed on reverse offirst page of Will as identifying witnesses. In those factualcircumstances, this Court held that the Will was proved even thoughattesting witnesses deposed against propounder of Will as evidence ofson of propounder of Will was corroborated by evidence of independentwitness Sub registrar and attesting witnesses had admitted theirsignature in the said Will or scribe of Will also testified aboutWill and testator was in sound and disposing state of mind.15. In the other case of Dr.A.Ravikumar, the testator executedWill bequeathing properties to sons born in wedlock with second wife,excluding children of predeceased son born in wedlock with first wifeand only daguhter born in wedlock with first wife, and also excludingsecond wife. Daughter alone questioned validity of Will and letteraddressed by her disclosed strained relationship between her andtestator and that she was being brought up by her maternalgrandmother. One of attesting witness deposed that he had attestedsignature of testator and that it was on working day. In thosefactual circumstances, by rejecting the plea that the attestingwitness used to leave for work at 7 a.m. to Kancheepuram did not meanthat he was not available on date of attestation at 10.30 a.m., inthe absence of any cross-examination or suggestions to such effect,this Court held that the Will was proved. 16. The evidence as to the sound disposing state of mind of thetestatrix and the way in which the thumb impression had been affixedin the Will and the role played by the beneficiaries of the Will andattestation of the Will as spoken to by P.W.3 clearly disclosedthat the genuineness of the Will has not been proved as required bylaw.17. In the light of the dictum laid down by the Supreme Court,on the available evidence, which has been discussed above, the onlyconclusion that could be arrived at in this case is that theexecution of the Will in a disposing state of mind of the testatrixand the attestation of the Will have not been proved at all. https://hcservices.ecourts.gov.in/hcservices/

18. For the above said reasons, the appeal fails and the same isdismissed. However, there is no order as to costs. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar uskCopy to1.The Addl.District Judge(Fast Track Court No.1)Chengalpattu.2. The Section Officer, V.R.Section, High Court, Madras+1 cc to Mr.G.Muthukrishnan, Advocate, SR.No.30789+1 cc to Mr.T.V.Krishnamachari, Advocate, SR.No.31186 JUDGMENT IN A.S.NO.799 of 2002KA {CO}TP/26.8.2009.