Madras High Court
B.Vibularani vs A.Subbammal ...2Nd Plaintiff / on 25 October, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)Nos.681 of 2010 & 167 of 2012
&
CMP(MD)No.8360 of 2021 & MP(MD)No.1 of 2010
in SA(MD)No.681 of 2010 : -
1.B.Vibularani
2.Gomathi Ammal (died)
3.A.Subburam
4.Dr.A.Babu
5.K.Subbulakshmi
6.K.Sargunam ... Defendants 3 to 6, 12 & 13 /
Appellants 1 to 6 / Appellants
(Memo in USR No.17107 dated 09.08.2021
was recorded as 2nd appellant died &
appellants 3 to 6 who are already
on record as Lrs of the deceased 2nd appellant
vide court order dated 31.08.2021)
vs.
1.A.Subbammal ...2nd plaintiff /
1st respondent / 1st respondent
2.R.Thilagam (died)
3.S.Rohini Devi
4.S.Rathi Devi
5.R.Balaji
6.R.Anitha (died) ...Defendants 7 to 11 /
Respondents 2 to 6 /
https://www.mhc.tn.gov.in/judis
Respondents 2 to 6
7.R.Madhavan
8.Minor M.Mangalshree
9.Minor Yuvashree ... Respondents
(R7 to R9 are brought on record as LRs
of the deceased R6 vide court order
dated 11.02.2020)
(Minor respondents 8 & 9 are represented
through their guardian & father R.Madhavan,
7th respondent)
(Memo in USR No.17906 dated 30.11.20
filed on 09.08.2021 was recorded as
respondents 3 to 5 and 7 to 9 who are already
on record are the LRS of the deceased R2
vide court order dated 31.08.2021)
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code, against the judgment and decree passed in A.S
No.10 of 2004 on the file of the Sub Court, Srivilliputhur dated
24.07.2009 confirming the judgment and decree passed in O.S No.
57 of 1996 on the file of the Principal District Munsiff Court,
Srivilliputhur dated 06.10.2003.
For Appellants : Mr.A.Arumugam
for M/s.Ajmal Associates
For Respondents :Mr.M.Vallinayagam,
Senior Counsel
for Mr.D.Nallathambi for R1
Mr.M.S.Balasubramaniya Iyer
for R3 & R4
Mr.S.Parthasarathy
https://www.mhc.tn.gov.in/judis
for R5, R7 to R9
in SA(MD)No.167 of 2012 : -
Subbammal ... Appellant / Appellant /
2nd Plaintiff
vs.
1.Vibularani
2.Gomathiammal (died)
(Memo dated 30.07.2021 filed on 04.08.2021
in USR No.16815 was recorded as 2nd respondent
died & respondents 3, 4, 10 & 11 who are already
on record were recorded as LRS of the deceased
2nd respondent vide court order dated 31.08.2021)
3.Subburam
4.Dr.A.Babu
5.R.Thilagam (died)
(Memo dated 18.11.2020 filed on 23.11.2020
in USR No.15685 is recorded as
5th respondent died and respondents 6, 7, 8, 12, 13 & 14
who were already on record were recorded as LRs of the
deceased R5, vide order dated 31.08.2021)
6.S.Rohini Devi
7.RadhiDevi
8.R.Balaji
9.R.Anitha (died)
10.K.Subbulakshmi
11.K.Sargunam ...Respondents /
Respondents / Defendants 3 to 13
12.R.Madhavan
13.Minor Mangalshree
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14.Minor Yuvashree ... Respondents
(RR 12 & 14 were brought on record as LRs of the
deceased R9 vide Court order dated 16.12.2020
in MP (MD)No.1 of 2014 to 3 of 2014)
(Minor respondents 13 and 14 are rep.by
their father & natural guardian/12th respondent)
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code, against the judgment and decree passed in A.S
No.88 of 2004 dated 24.07.2009 on the file of the Sub Court,
Srivilliputhur confirming the judgment and decree dated
06.10.2003 passed in O.S No.57 of 1996 on the file of the Principal
District Munsif Court, Srivilliputhur.
For Appellants : Mr.M.Vallinayagam, Senior Counsel
for Mr.D.Nallathambi
For Respondents : Mr.A.Arumugam
for M/s.Ajmal Associates
for R1 to R4, R10 and R11
: Mr.M.S.Balasubramaniya Iyer
for R6 and R7
Mr.S.Parthasarathy for R8, R12 to 14
COMMON JUDGMENT
The plaintiff in O.S No.57 of 1996 on the file of the Principal
District Munsif Court, Srivilliputhur is the appellant in SA(MD)
No.167 of 2012. Defendants 3 to 6, 12 and 13 in the said suit are
the appellants in SA(MD)No.681 of 2010. The said suit was
originally filed by Rengammal, the mother of Subbammal,
Alagarsamy and Rengasamy (D1 and D2). The suit was filed
seeking the following reliefs :
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“1.To declare that the suit first schedule
belongs to her.
2.To declare that she was entitled to enjoy
the suit second schedule during her lifetime.
3.For partition and separate possession of her
1/12th share in the suit third schedule.”
Since the contesting defendants were in possession of the suit
items 1 and 2, she also wanted the relief of accounting. After filing
the suit, Rengammal passed away on 26.10.1992. Thereupon,
Subbammal/third defendant got herself transposed as the second
plaintiff. The case of Subbammal was that her mother Rengammal
had executed a registered Will dated 30.12.1990 in her favour.
The stand of the plaintiff was that the suit first schedule was
purchased by Rengammal and that it belonged to her absolutely.
There was exchange of notices between Rengammal on the one
hand and her sons on the other. It was contended by the sons that
their mother-Rengammal had already settled the suit first schedule
in their favour vide settlement deed dated 29.08.1957. In the reply
statement, Rengammal denied having executed any such
settlement deed. Defendants 1 and 4 filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the trial court framed as many as twelve issues. The
plaintiff examined herself as PW.1. The attestors of the Will dated
30.12.1990 were also examined as PW.2 and 3. Exs.A1 to A9 were
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marked. The third defendant Vibularani and fifth defendant
Subburam were examined as DW.1 and DW.2. Exs.B1 to B28
were marked. After consideration of the evidence on record, the
trial court by judgment and decree dated 06.10.2003 dismissed the
suit as regards the suit schedule 1 and 2 and decreed the suit as
regards the third schedule. It was declared that Subbammal will
be entitled to 2/12th share in the third suit schedule and that
defendants 7, 9 to 11 will be entitled to 19/48th share in the third
schedule. A preliminary decree was passed to that effect and the
parties were given liberty to file separate proceedings under Order
20 Rule 12 of CPC. Aggrieved by the same, the appellants in
SA(MD)No.681 of 2010 filed A.S No.10 of 2004 before the Sub
Court, Srivilliputhur. Subbammal filed A.S No.88 of 2004 before
the Sub Court, Srivilliputhur. Both the appeals were heard
together. Judgment and decree dated 24.07.2009 was passed
confirming the judgment and decree passed by the trial court and
both the appeals were dismissed. Aggrieved by the same,
Vibhularani and others filed SA(MD)No.681 of 2010 while the
plaintiff Subbammal filed SA(MD)No.167 of 2012. SA(MD)No.167
of 2012 was admitted on the following substantial questions of
law :
“1.When under Ex.B2, the beneficiaries are to
get absolute right only after the death of the
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executant, whether the finding of the court below that
the said document is a settlement deed is correct
under law ?
2.When the presumption contemplated under
Section 90 of the Evidence Act can be applied only
regarding the signature and handwriting of the
executant, whether the courts below are correct in
accepting the interpretation put forward by the first
defendant, regarding the nature and character of the
document, Ex.B2 without any other independent
evidence, that too, when the executant herself treated
Ex.B2 only as her 'Will'?”
Only notice of admission was ordered in SA(MD)No.681 of 2010
and it had not been admitted till date.
2.Heard the learned counsel on either side.
3.Before this Court, the fourth defendant Vibularani and the
legal heirs of the first defendant stand on the one side while the
plaintiff Subbammal and the legal heirs of the second defendant
are standing on the other side. Subbammal and the LRs of the
second defendant advanced common arguments. They pointed
out that the suit first schedule belonged to Rengammal. The
stand of her sons, namely, Alagarsamy and Rengasamy was that
the property had been settled in their favour under Ex.B2 dated
02.09.1957 and that under Ex.B2 their mother Rengammal
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retained the right to enjoy the property during her lifetime and her
sons were to take the property absolutely after her lifetime.
4.The question that arises for consideration is whether Ex.B2
has to be construed as a Will/testament or as a settlement deed.
The construction of Ex.B2 has considerable implications for the
rights of the respective parties. This is because Rengammal had
executed a Will dated 30.12.1990 (Ex.A5) in favour of Subbammal.
If Ex.B2 dated 02.09.1957 is construed as a Will, then, that
would stand displaced and superseded by Ex.A5 and Subbammal
will be entitled to take suit first schedule also. If it is construed as
a settlement deed, then, Subbammal cannot have any right over
the first schedule.
5.The learned Senior counsel appearing for the plaintiff as
well as the other learned counsel took me through the original
document itself. The learned Senior Counsel Mr.Vallinayagam
pointed out that Rengammal was an illiterate woman. She had
neither put her signature nor her thumb impression. A mere
scribbling is there. In the said document, several corrections were
found. Placing reliance on the decision of the Privy Council
reported in AIR 1937 PC 274 (Omanhene Kwamin Bassayin vs.
Omanhene Bendentu II), the learned Senior counsel submitted
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that where a person not knowing English has affixed his mark, the
onus to prove that the document was appropriately explained and
interpreted to the person affixing his mark or something, is on the
party relying on the document. He further submitted that this
principle is squarely applicable to the case of execution of a
document by a illiterate lady. He placed further reliance on the
decision reported in AIR 1937 Privy Council 113 (Shri.Kishore
Ray Thakur vs. Basanti Kumar Das). His pointed contention is
that the document is sought to be propounded only by the first
defendant and hence, the burden to prove is upon him. He
contended that the first defendant as well as the fourth defendant
miserably failed to discharge the burden cast on them. He also
submitted that merely because the document has been styled as a
settlement document, that would not make it a deed of settlement.
In the case on hand, Ex.B2 categorically states that her sons were
to take the property only after her lifetime. This is a classic feature
of any Will. He also states that even though a document may
contain a clause that it is irrevocable, that will still not make any
difference. In this regard, reliance was placed on the decision
reported in AIR 1978 Mad 54 (Ramaswami Naidu and Ors. vs.
Gopalakrishna Naidu and Ors) wherein the proposition laid
down in Halsbury's Laws of England to the effect that the revocable
nature of a will cannot be lost, even by a declaration that it is
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irrevocable or by a covenant not to revoke it was approvingly cited.
6.Responding to the contention of the learned counsel for the
appellants in SA(MD)No.681 of 2010 that even during the lifetime
of Rengammal, the second defendant sold his interest in the suit
first schedule in favour of Vibularani/3rd defendant, he submitted
that the true character of a document cannot be determined by the
subsequent conduct of the parties.
7. I have serious doubts as to whether the legal heirs of D2
can endorse the said plea. This is because the stand taken in the
written statement filed by the first defendant that Ex.B2 is only a
settlement deed and not a Will was not contested by the second
defendant. But I cannot lose sight of the fact that Subbammal, the
plaintiff in the suit is definitely entitled to canvass this contention.
8.The plaintiff in response to the written statement, had filed
her reply statement. In the reply statement, the plaintiff only took
a stand that Ex.B2 never came into force. That is why, the trial
court did not frame any issue as to whether Ex.B2 has to be
construed as a settlement deed or as a Will. Even though no such
issue was framed in this regard, from a reading of the trial court's
judgment and the discussion found in Paragraph No.18, it can be
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seen that the matter was argued at length before the court below
regarding the true character of Ex.B2. In any event, a substantial
question of law has been framed in this regard and it is my
bounden duty to answer whether Ex.B2 is a settlement deed or
Will. Ex.B2 has been styled as a settlement document. It is true
that the nomenclature given to a document cannot be
determinative of its character. It is true that even under a deed of
settlement, the settlor can retain the right to enjoy the settled
property during her lifetime and direct that the settlees will take
the property only after her lifetime. In Ex.B.2, there is a specific
sentence stating that the executant had given an application in the
Sub Registrar office for changing the patta in the names of the
settlees. Of course, this sentence appears to have been added
after the original draft. The learned counsel for the plaintiff would
also contend that there is no endorsement in the document to
show that this was added before registration.
9.It is true that there are quite a few changes and additions
and interlineation in Ex.B2. If according to the plaintiff and the
sailing respondents, these features throw considerable doubt on
the very authenticity and genuineness of the document, nothing
prevented them from applying for a certified copy. In the pleadings
also, the stand taken by the plaintiff was only that Ex.B.2 did not
come into force. In my view, this single sentence occurring in
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Ex.B2 for effecting mutation in the revenue record shows the
intention of the executant.
10.Though the learned counsel did not stress this point and
there is also no plea, I do take note of the fact that Subba Naidu,
the father of the parties executed a settlement deed (Ex.B1) in
favour of Subbammal settling some six acres of land in her favour.
The fact that a settlement executed by the father in favour of the
daughter vide Ex.B1 and three days later, the settlement deed was
executed by the mother in favour of the sons vide Ex.B.2 throws
considerable light on the true character of the document.
11.Therefore, I sustain the finding of the court below that
Ex.B2 is only a deed of settlement and not a deed of Will. The
concurrent findings of the courts below are confirmed and I
answer the substantial questions of law against the plaintiff
Subbammal. As regards the suit second schedule, even according
to the original plaintiff she had only a life estate. Following her
demise, the counsel for Subbammal made an endorsement that
there is no contest as regards the suit second schedule. There is
no dispute that the suit second schedule was the absolute property
of Subba naidu and he had given only life estate in favour of his
wife Rengammal. The courts below specifically declined the relief
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of accounting as regards the suit second schedule and when there
is no challenge to the same, the question of going into the same
does not arise at all.
12. Now comes the third schedule. The third suit schedule
property absolutely belonged to Subba Naidu. The said property is
admittedly a coparcenery property. Following his demise, as per
the law then prevailing, Alagarsamy Naidu and Rengasamy Naidu
were entitled to 1/3rd plus 1/12th share each in the property.
Rengammal and Subbammal were each entitled to 1/12th share.
Since Rengammal had executed a Will (Ex.A5), in favour of
Subbammal and the same was also duly proved in accordance with
law, her 1/12th share will devolve on Subbammal. The stand of
the contesting defendants was that in view of Ex.B1, Subbammal
had relinquished her share in the suit third schedule property. It
was also pleaded that the relinquishment was orally made by
Subbammal. In fact, the plea of ouster was also made. The
courts below have concurrently found that this plea has not at all
been established. As rightly contended by the learned Senior
Counsel for the plaintiff and the sailing respondents, any such
relinquishment has to be necessarily through a registered
document. It cannot be orally made. The character of the
property has been answered by the courts below and there is no
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challenge to the said finding. The courts below applying the law
then in force rightly held that Subbammal will be entitled to 2/12th
share in the suit third schedule property.
13.Now, the only question that arises for consideration is
whether the share of Subbammal in suit third schedule will get
enlarged in view of the amendment made to Section 6 of the Hindu
Succession Act as interpreted by the Hon'ble Supreme Court in
Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1. The learned
Senior Counsel as well as the learned counsel for the sailing
respondents would strongly contend that a reading of the said
judgment of the Hon'ble Supreme Court would show that the
daughter becomes coparcener by birth and that it is not necessary
that there should be a living coparcener or father as on the date of
the amendment to whom the daughter would succeed. The
plaintiff has also filed an application for amending the plaint
seeking allotment of 6/16th share in the suit third schedule.
14. In fact, filing of such an application is not really
necessary. If I hold that the plaintiff is entitled to enlarged share in
the light of the aforesaid decision of the Hon'ble Supreme Court, I
am bound to modify the preliminary decree accordingly. This
Court is obliged to take note of the subsequent development and
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mould the relief. The Hon'ble Supreme Court has also held that
the rights can be claimed by the daughter born earlier with effect
from 9.9.2005 with savings as provided in Section 6(1) as to the
disposition or alienation, partition or testamentary disposition
which had taken place before 20th day of December, 2004. I
specifically asked the learned counsel on either side, as to whether
the suit third schedule is still available intact or whether any
alienations or partition had taken place. The counsel are not quite
sure of the position. Hence, I hold that subject to any such
alienations, the plaintiff is entitled to 6/16th share in the suit third
schedule. D7 to D11 who happen to be the legal heirs of D2 are
entitled to 5/16th share in the suit third schedule. It is stated that
they have also paid the requisite court fee. SA(MD)No.681 of 2010
stands dismissed. SA(MD)No.167 of 2012 is partly allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
25.10.2021
Internet : Yes/No
Index : Yes/No
skm
To
1.The Sub Judge, Srivilliputhur.
2.The Principal District Munsiff, Srivilliputhur.
Copy To
The Section Officer, Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN, J.
https://www.mhc.tn.gov.in/judis
skm
SA(MD)Nos.681 of 2010 & 167 of 2012
25.10.2021
https://www.mhc.tn.gov.in/judis
