Madras High Court
R.Krishnaveni vs Sellathal on 26 April, 2021
C.R.P.(N.P.D).No.1778 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.09.2021
PRONOUNCED ON : 22.10.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
C.R.P.(N.P.D)No.1778 of 2021
and
C.M.P.No.13752 of 2021
K.G.Rathinasabapathy(died)
1.R.Krishnaveni
2.R.Sivaselvakumar ...Petitioners
Vs.
Janakiammal (died)
1.Sellathal
2.Nandakumar
3.Selvakumar
4.Deenadayalu
5.Kamaladevi
6.Sivakumar
7.Kumaravel ...Respondents
1/13
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1778 of 2021
Prayer:- Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order dated 26.04.2021 made in
I.A.No.126 of 2014 in O.S.No.530 of 2004 on the file of the Ld.District
Munsif Court, Dharapuram by allowing this Civil Revision Petition.
For Petitioners : Mr.N.Manoharan
For Respondents : Mrs.Hema sampath, Senior Advocate for
Mr.S.Arjun for R1.
ORDER
This Civil Revision Petition is directed against the order passed in
I.A.No.126 of 2014 in O.S.No.530 of 2004 on the file of the Learned
District Munsif Court, Dharapuram, on 26.04.2021.
2.The deceased Janakiammal, filed a suit in O.S.No.530 of 2004
against the respondents/defendants seeking the relief of partition of 1/4
share in the suit properties. The suit was originally filed in the year 1999 as
O.S.No.14 of 1999 on the file of the Sub Court, Dharapuram. Subsequently,
it was transferred to District Munsif Court, Dharapuram and re-numbered as
O.S.No.530 of 2004. The suit was decreed on 12.10.2006. No appeal was
filed against this judgment and therefore the judgment and decree passed in
O.S.No.530 of 2004 became final. Janakiammal filed I.A.No.126 of 2014
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C.R.P.(N.P.D).No.1778 of 2021
as first petitioner impleading her daughter Sellathal as second petitioner
under Order 26 Rule 13 and Section 151 of C.P.C., for appointment of an
Advocate Commissioner to ear-mark, divide and allot her 1/4 share in the
suit properties. The reason for impleading her daughter Sellathal is that she
had executed a registered settlement deed dated 14.06.2007 and a will dated
16.04.2010, to settle and bequeath her 1/4 share in the suit properties.
Therefore, she filed this petition along with her daughter Sellathal.
Subsequent to filing of this petition Janakiammal died. This petition was
contested by the respondents 2 and 7. On considering the oral and
documentary evidence produced in the enquiry for passing final decree, the
learned District Munsif, District Munsif Court, Dharapuram allowed the
petition and appointed one Mr.M.Vishwanathan, B.A.B.L, as an Advocate
Commissioner to inspect suit properties along with the qualified surveyor
and suggest the mode of division of the properties as per the preliminary
decree. The Advocate Commissioner was directed to file a report plan and
the surveyor's plan. Against the said order, this Civil Revision Petition is
preferred.
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C.R.P.(N.P.D).No.1778 of 2021
3.The learned counsel for the petitioners submitted that the
petitioners are the wife and son of Janakiammal's son
K.G.Rathinasabapathy. K.G.Rathinasabapathy was the eighth defendant in
the suit. There is no reason for excluding him from inheriting the properties
of the deceased Janakiammal. The first respondent Sellathal's husband is an
Advocate. Taking advantage of his position as an Advocate, the settlement
deed and will had been created. The attesters in both the documents are
same persons. Persons in one place travelled to Dharapuram and
Coimbatore to attest the documents. There is discrepancy in the evidence as
to the place where Janakiammal resided during the last ten years. One
Periyasamy is responsible for creating these documents. What is the
necessity for creating a settlement deed and then a will? The first respondent
was not aware of the suit in O.S.No. 530 of 2004, its related proceedings
and the properties for which the suit was filed. That was the reason why a
settlement deed was created first and then will was created in respect of the
properties left out in the settlement deed. Petitioner's father was alone taking
care of his mother. The first respondent had never taken care of the deceased
mother. The attester to these documents are closely related to the first
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C.R.P.(N.P.D).No.1778 of 2021
respondent. With the help of interested witnesses, the settlement deed and
will had been created to destroy the rightful claim of petitioner's father and
the petitioners. Allotment of share on the basis of settlement deed and will
to the first respondent is not correct and therefore the order of the Learned
District Munsif, Dharapuram is liable to be set aside.
4.In response, the learned counsel for the respondents submitted
that the petitioner's father did not contest the suit and remained ex-parte.
The settlement deed was executed for item Nos.1 to 5 of the suit properties
and will was executed for item Nos.6 to 8. Petitioner's father and his father
had already divided the properties and substantial amount of properties were
allotted to petitioner's father. Therefore, petitioner's father was excluded in
the settlement deed and will. Janakiammal died three years after the will.
The attester to the will have clearly spoken about the execution of the will
and that will was executed when Janakiammal was in sound and disposing
state of mind. There is no suspicious circumstances brought out, creating
doubt in the genuineness of the will. The petitioner's father has not chosen
to give evidence. Petitioners have not produced any documents to show that
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C.R.P.(N.P.D).No.1778 of 2021
he was taking care of Janakiammal. Petitioner's father filed petition to send
the will to the hand writing expert's opinion. After the dismissal of this
petition, he has not taken any steps to take the matter further to disprove the
will, when the respondent discharged the burden of proving the will.
Witnesses had clearly and categorically stated about the execution of the
will and the will is sufficiently proved. Therefore, order passed in final
decree petition on the basis of settlement deed and will in favour of the first
respondent is correct and therefore, the learned counsel for the respondents
prayed for confirming the order of the learned District Munsif, Dharapuram
and for dismissal of this Civil Revision Petition.
5.Considered the rival submissions and perused the records.
6.There is no dispute with regard to the fact that the suit was filed
by Janakiammal against one Nandakumar and seven others. She claimed 1/4
share in the suit properties as the legal heir of her mother Achiathal. The suit
was decreed and she was allotted 1/4 share in the suit properties. Then she
filed final decree petition in I.A.No.126 of 2014 along with her daughter
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C.R.P.(N.P.D).No.1778 of 2021
Sellathal. In the affidavit filed in the final decree petition, she has very
clearly stated that she had allotted 1/4 share in the suit properties in favour
of her daughter through a registered sale deed dated 14.06.2007 and will
dated 16.04.2010. She claims that as per these settlement deed and will her
daughter is entitled to 1/4 share in the properties in pursuance to the
preliminary decree. The prayer is that, she prayed for appointment of an
Advocate Commissioner to ear-mark, divide and allot 1/4 share in favour of
her daughter, the first respondent/second petitioner. Thus it is clear from
affidavit filed by Janakiammal that she had executed a settlement deed dated
14.06.2007 and will dated 16.04.2010 vesting her right in 1/4 share in the
suit properties to her daughter. During the course of enquiry in the final
decree petition it appears that, Janakiammal died. Therefore, Sellathal was
examined as PW1. PW2 and PW3 had also been examined. The settlement
deed dated 14.06.2007 and will dated 16.04.2010 had been marked as
exhibit P1 and P2. RW1 was examined as respondent.
7.The submission made by the learned counsel for the petitioners
had already been extracted in the previous paragraphs. Evidence of PW1,
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C.R.P.(N.P.D).No.1778 of 2021
PW2, PW3 and RW1 had also been produced for the perusal. The entire
reading of the evidence of witnesses especially PW2 and PW3 shows that
though there are certain minor discrepancies in their evidence, overall,
reading of the evidence supports the case of the respondents that
Janakiammal had executed a settlement deed and will with the intention to
settle and bequeath her properties in favour of the first respondent. She was
in a sound and disposing state of mind at the time of execution of these
documents. Merely because the witnesses in both the documents are same
persons and they travelled from one place to the places where the settlement
deed and will had been executed, does not mean that both the documents are
fabricated and created document. Normally if a person wanted to execute
any document, he would prefer only a known person(s) to be the attesters to
the document. Only persons on whom the executant of document has faith
that they would support the execution of document, in case any necessity
arises, he would request those persons to become the attesters to the
documents. Nobody would prefer a stranger to be an attester to a document,
especially important documents like a settlement deed or will. Both the
witnesses PW1 and PW2 have given cogent and convincing evidence in
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C.R.P.(N.P.D).No.1778 of 2021
support of the execution of the will. PW3 has given evidence in support of
the execution of settlement deed. They have withstood the rigour of cross
examination and confirmed to their evidence in chief examination. Their
evidence is not sackled or dis-credited to entertain a serious doubt in
execution of the will and the settlement deed. That apart, even in the
affidavit filed in support of final decree petition, Janakiammal herself
reiterated the execution of settlement deed and will. Therefore, this Court is
of the considered view that the first respondent has succeeded in proving the
execution of settlement deed dated 14.06.2007 and will dated 16.04.2010.
8.It is pointed out by the learned counsel for the respondents that
in the settlement deed, it is clearly mentioned that there was a partition
between petitioner's father and Janakiammal's husband Chinnasamy
Gounder. Even in the will, it is reiterated that the petitioner's father was
allotted several properties in the partition between him and his father. Thus,
the exclusion of petitioner's father is justified by giving acceptable reason.
9.Both the parties have not produced any documents to show the
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C.R.P.(N.P.D).No.1778 of 2021
treatment given to Janakiammal and under whose custody she was at the
time of her death or prior to her death. Both are giving contradictory
evidence. In the absence of any document and evidence, merely on the
basis of oral evidence we cannot definitely conclude that Janakiammal was
residing with petitioner's father or first respondent and who was taking care
of her.
10.With regard to the allegation that the first respondent was not
aware of the location of the properties, availability of properties and
therefore settlement deed and will had been executed, settlement deed was
said to have been executed for item Nos.1 to 5 of the suit properties and will
was executed for item Nos.6 to 8 properties. It is not known why two
documents have been executed. The fact remains that Janakiammal had
executed the settlement deed 14.06.2007 and the will dated 16.04.2010 and
the execution of these documents have been proved. Therefore, this Court
finds no reason to interfere with the order dated 26.04.2021, in I.A.No.126
of 2014 in O.S.No.530 of 2004 passed by the learned District Munsif,
Dharapuram in appointing Advocate Commissioner to suggest the mode of
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C.R.P.(N.P.D).No.1778 of 2021
division as per the preliminary decree passed and the order is confirmed.
11.Resultantly, this Civil Revision Petition is dismissed. No costs.
Connected miscellaneous petition is closed.
22.10.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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C.R.P.(N.P.D).No.1778 of 2021
To
1. The District Munsif,
District Munsif Court,
Dharapuram.
2. The Section Officer,
VR Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1778 of 2021
G.CHANDRASEKHARAN.J,
Ep
C.R.P.(N.P.D)No.1778 of 2021
and
C.M.P.No.13752 of 2021
22.10.2021
https://www.mhc.tn.gov.in/judis/
