Madras High Court
Mothi Periyakaruppan @ ... vs Mothi Ayyan Ambalam (Died) on 20 June, 2023
A.S.(MD)Nos.190 of 2008 and 180 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.190 of 2008
and C.M.P.(MD)No.11107 of 2018
and A.S.(MD)No.and 180 of 2020
Mothi Periyakaruppan @ M.Maharajan ...Appellant/Plaintiff
in both appeals
Vs.
1.Mothi Ayyan Ambalam (Died)
2.M.Malaichamy
3.M.Gnanasekaran
4.S.R.L.Padma
5.S.R.L.Sree Rengarajan ...Respondents/ Defendants 1 to 3, 5
& 6 in A.S.(MD)No.190 of 2020
(Memo presented in Court on 11.04.2019 and
recorded as R1-died and the sole appellant,
respondents 2 and 3 are the LRs of R1 vide
order dated 11.04.2019)
1.M.Malaichamy
2.M.Gnanasekaran ...Respondents in A.S.(MD)No.180
of 2020
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COMMON PRAYER: These Appeal Suits are filed under Section 96 of the Civil
Procedure Code, to set aside the judgment and decree passed in O.S.No.448 of
2004 dated 30.11.2007 and O.S.No.11 of 2014, dated 24.04.2018 on the file of the
First Additional District Court, Madurai and V Additional District Court, Madurai,
respectively.
For Appellant : Mr.V.Meenakshi Sundaram
(in both appeals)
A.S.(MD)No.190 of 2020:
For R3 : Mr.M.Ajmal Khan
for M/s.Ajmal Associates
For R2 : Mr.N.Shahul Hameed
For R4 & R5 : Mr.D.Jeyam
A.S.(MD)No.180 of 2020:
For R1 : Mr.Shahul Hameed
For R2 : Mr.M.Ajmal Khan
for M/s.Ajmal Associates
COMMON JUDGMENT
Though the two appeals have been filed in respect of two different cause
of action, since the subject matter of the properties and the parties are one and the
same, in order to avoid conflicting judgments, this Court is of the view that both
the appeals are to be dealt with separately and disposed of separately in a common
judgment.
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A.S.(MD)Nos.190 of 2008 and 180 of 2020
A.S.(MD)No.190 of 2008:
2.Aggrieved over the dismissal of the suit in O.S.No.448 of 2004 filed
by the plaintiff for dividing the suit properties into four equal shares and mesne
profits, the present appeal is filed.
3.For the sake of convenience, the parties are referred to herein, as per
their own ranking before the Trial Court in O.S.No.448 of 2004.
4.The brief facts leading to the filing of this Appeal Suit are as follows:
(i) the first defendant is the father of the plaintiff and the second and
third defendants are the brothers of the plaintiff. The father of the first defendant
was a landlord and he owned large properties. By way of a registered partition,
dated 12.11.1952 between the first defendant's father, the first defendant and his
brothers, the properties have been partitioned.
(ii) In the above said partition, 'B' schedule of properties were allotted to
the first defendant. Out of the income earned from that properties, the first
defendant purchased more properties and treated the same as joint family
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properties. As the first defendant had developed illegal relationship with other
women, in order to save the property, the plaintiff's mother insisted the first
defendant to divide the properties to safeguard the family properties. Therefore, as
per the list furnished by the first defendant, the partition deed dated 12.11.1967
was executed and registered by believing the representation of the first defendant.
At that time the plaintiff was a student the second and third defendants and the
other brother of the plaintiff, one Chandrasekar were also minor. The mother of
the plaintiff was illiterate. Hence, the plaintiff and his mother also signed the said
partition deed.
(iii) The plaintiff contended that only in the second week of January,
2003, he came to know that the first defendant had suppressed certain properties
allotted to him under the partition, dated 12.11.1952 and also the properties
purchased by him out of the earnings from that properties. The existence of the
properties was not known to the plaintiff at the time of execution of the partition
deed, dated 12.11.1967. Hence, it is the contention that the partition deed dated
12.11.1967 has to be treated only as partial partition and the entire properties of
the first defendant have to be partitioned.
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(iv) According to the plaintiff, the partition of the year 1967 is a result of
fraud, misrepresentation and coercion of the first defendant. The plaintiff's mother
died on 14.07.1989. His other brother Chandra Sekaran died on 16.09.1987
without any issues. Therefore, the plaintiff is also entitled to 1/4 share in the
properties allotted to Chandra Sekaran. Hence, the plaintiff demanded partition in
the first week of April 2003 over the said properties. But, the first defendant
refused for the same. Further, the first defendant had executed a released deed,
dated 30.04.1973 in favour of the fourth defendant in respect of the portion of
Item No.1 of the suit property. The plaintiff claims that the said release deed will
not bind on the plaintiff, since he is not a party to the said deed and he is entitled
to 1/4 share in the suit properties and the income therefrom. Hence, he filed the
suit.
(v) Disputing the contention of the plaintiff, the first defendant filed a
written statement stating that he and his brothers got properties under the
registered Will, dated 17.01.1949 executed by one Alagappan Ambalam. The first
defendant was having income from those properties. Hence he had independent
source of income to acquire the property for himself. Further, the allegation that
the properties acquired by the first defendant through his own income were treated
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as joint family property is not at all true. The acquisition of the properties in his
name had never been treated as joint family properties and no property was
intended to be kept in common to be divided at a later point of time. The
contention of the plaintiff that the partition deed, dated 12.11.1967 is only partial
partition was also denied. Having accepted the partition deed, the suit has been
filed with an evil mind.
(vi) He further submitted that Item No.1 of the 'A' schedule property
does not belong to the first defendant. It belongs to a third party, who alone is in
possession and enjoyment of the same from the very inception. The properties
were bequeathed to the first defendant and his brothers by a registered Will, dated
17.01.1949. The first defendant had been realizing income from those lands and
he purchased suit items 2 and 3 from and out of the said earnings. Item No.4 is
not available for partition, since it was allotted to the first defendant under the
partition deed dated 18.06.1970. As far as Item Nos.6 and 7 are concerned, one of
the sons, namely Chandra Sekaran died on 16.09.1987 without any legal heirs and
thus, the first defendant had been in exclusive possession and enjoyment of that
properties to the exclusion of all other and paying kists from then. Patta has also
been duly transferred in the name of the first defendant. The plaintiff was also
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fully aware of the same and he had not claimed any right over the said properties
before filing the suit. Thus, the first defendant had perfected title in suit Item Nos.
6 and 7 by adverse possession and prescription and ouster. As far as Item No.8 is
concerned, the said property does not belong to the family of the plaintiff at all. It
belongs to one Mothi Karuppan Ambalam and possession of the said property is
with his legal heirs.
(vii) There had been an ill-feeling between the plaintiff and the first
defendant for several decades and they are not at all in talking terms. The plaintiff
knew about the enjoyment of the suit properties by the first defendant separately
and exclusively. Hence, there was no need for the plaintiff to demand any
partition in the suit properties after the partition, dated 12.11.1967, which was full
and final in respect of the parties and also the properties and the suit for partition
ignoring the partition deed, dated 12.11.1967 is not maintainable. Hence, he
opposed the suit.
(viii) The second defendant adopting the written statement of the first
defendant filed a written statement stating that the first defendant is the exclusive
owner of the properties in Item Nos.6 and 7 and also the other properties are not
available for partition and the plaintiff has no right over the same.
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(ix) The fourth defendant also filed a written statement stating that the
release deed, dated 30.04.1973 in respect of entire first item of the suit property is
binding on the plaintiff. Further, the fourth defendant demolished the old tiled
building and constructed a pucca terraced building. He and his father enjoyed the
property for more than the statutory period of limitation and they have also
perfected title by long enjoyment. The fourth defendant and his father were in
enjoyment of the first item of the property and nobody can claim any right over the
said property. Hence, he disputed the claim of the plaintiff.
(x) Based on the oral and documentary evidence, the trial Court had
framed the following issues:
“1.Whether item 1 of the suit property belongs to first
defendant as mentioned in the plaint or belongs to the fourth
defendant as mentioned in the written statement?
2.Whether the items 2 and 3 of the suit properties
belongs to the first defendant exclusively and purchased out of his
separate and independent income of him?
3.Whether the partition dated 12.11.1967 was full and
final in respect of parties and properties or partial partition?
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4.Whether the plaintiff is entitled to 1/4 share in the suit
property?
5.Whether the defendants are liable to future mesne
profits?
6.To what relief if any plaintiff is entitled?”
The following additional issue was framed:
“1.Whether the suit as framed is maintainable?”
(xi) Before the trial Court, on the side of the plaintiff P.W.1 to P.W.3
were examined and Ex.A1 to Ex.A21 were marked. On the side of the
defendants D.W.1 to D.W.2 were examined and Ex.B1 to Ex.B73 were marked.
(xii) The trial Court after considering the evidence available on records,
non suited the plaintiff by dismissing the suit. Challenging the same, the present
appeal is filed.
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5. The learned counsel for the plaintiff / appellant would submit that the
first defendant had executed a release deed in favour of the fourth defendant with
regard to the first item of suit property, which is not valid in the eye of law. The
first defendant had no right to execute the said document. Further, though Ex.A4,
partition deed was entered into between the parties, all the joint family properties
had not been included. At the most, the said partition can be presumed only as
partial partition.
6.According to the plaintiff, Item Nos.2 to 4 were purchased in the year
1954 and 1955, respectively by his father. Therefore, when the joint family had
sufficient nucleus, any purchase made by the Kartha of the family, it is only
deemed to be the joint family property. Item No.4 consists of three survey
numbers viz., 55/5B, 55/6A and 55/6B. It is claimed to have been bequeathed in
favour of the first defendant and his brother under Ex.B1, Will. However, those
properties were also treated as joint family properties.
7. He further submitted that Item Nos.5 to 8 were admittedly allotted to
one of the brothers of the plaintiff under Ex.A4. The said brother, namely,
Chandrasekaran died, on 16.09.1983 without any issues. The plaintiff mother also
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died. Therefore, the plaintiff being the clause-1 legal heir of his mother is entitled
to a share along with the defendants in the said properties. Item No.5 was also
purchased out of the joint family nucleus. Therefore, it is the contention of the
plaintiff that when the joint family had sufficient nucleus, the transaction made by
the Kartha of the family also available for partition. But the trial Court dismissed
the suit on the ground that as far as Item Nos.5 to 8 is concerned, the first
defendant had ousted the other owners. The plea of ouster has not been
established on record. Therefore, the dismissal of the suit by the trial Court in its
entirety is not valid in the eye of law.
8. The learned counsel for the respondents submitted that Under Ex.A4,
partition deed, partition had been completed in respect of all the family properties.
The self acquired properties of the first defendant had not been included in the
above said partition. According to him, Item Nos.2 and 3 of the suit properties
were purchased in the year 1954 and 1955, respectively, in the name of the first
defendant out of his own income derived from the individual property bequeathed
to the first defendant and his brothers under the Will, Ex.B1 dated 17.01.1949.
The Will was executed in the year 1949 and the first defendant and his brothers
were in enjoyment of the properties after the death of the testator of the Will.
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There was sufficient income from that properties to purchase Item Nos.2 and 3 of
the suit properties. Therefore, it cannot be treated as joint family property.
9. Further, the plaintiff has not shown any other evidence to show that Item
Nos.2 and 3 were purchased out of the joint family nucleus. Therefore, in the
absence of any evidence to prove joint family nucleus, the plaintiff cannot contend
that those properties are also available for partition. When the partition was
already completed with regard to the joint family properties in the year 1967, the
suit has been filed in the year 2003 with an evil mind. To substantiate the
allegations that the partition deed is the result of undue influence, coercion, no
evidence is available on record. Therefore, his contention is that the plaint has to
fail.
10. As far as Item No.1 is concerned, it is established on record that the
properties were originally owned by the fourth defendant and his father. Since the
same has been purchased in the Court auction on behalf of the fourth defendant,
the same has been released in his favour. Thereafter, the fourth defendant had
been in enjoyment of the property as his own property. It was also known to the
plaintiff. Therefore, claiming partition in respect of first item of the suit property
is also not maintainable.
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11. As far as the properties allotted to the coparcener is concerned, it is
the specific contention of the learned counsel for the respondent that Charndra
Sekaran died in the year 1987. The evidence of the plaintiff itself shows that he
demanded partition in the year 1989. However, the father refused for it. However,
the suit has been filed in the year 2004 beyond the period of limitation. The
plaintiff knowing the fact that his father is in exclusive possession and enjoyment
of the said properties, cannot claim a share in that properties also.
12. In the light of the above submissions, now the points arise for
consideration are:
(1)Whether the partition deed, dated 12.11.1967 is a result of undue
influence, fraud and coercion?
(2)Whether Item 2, 3 and 5 were purchased out of the joint family
nucleus?
(3)Whether the plaintiff is entitled to the partition as prayed for?
13. Heard the learned counsel appearing on either side and perused the
materials available on record.
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14. It is an admitted fact that the plaintiff and the first defendant are
father and son. The second and third defendants are the brothers of the plaintiff.
It is the specific case of the plaintiff that his father was leading an immoral life.
Only in order to safeguard the family properties, the partition deed came into
existence in the year 1967. It is relevant to note that Ex.A4, dated 12.11.1967 was
entered into between the father and sons. At the relevant point of time, the
plaintiff alone was major as per the pleadings. He has not questioned the said
document till the filing of the suit in the year 2004.
15. It is the contention of the plaintiff that the father was allotted some
properties under Ex.A1, partition deed, dated 12.01.1952. These facts are not in
dispute. According to the plaintiff, those properties are the family properties of
the first defendant and the first defendant had generated income from that
properties and it was the source for the purchase of other properties in Item Nos.2,
3 and 5. Admittedly, it is the case of the plaintiff that his father was leading an
immoral life. Therefore, the partition deed, under Ex.A4 of the year 1967 came to
be executed and according to him, it is a result of undue influence, fraud and
coercion. Even in the pleadings, except the plea that the father of the plaintiff was
living with some other lady, no details whatsoever were given with regard to the
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same. When the plaintiff comes with the plea of undue influence, fraud and
coercion, necessary particulars with regard to the dates and items have to be
pleaded in the plaint. However, no details had been pleaded in the plaint.
16. The property shown as item No.1 in the present suit schedule
properties was shown as Item No.28 in the 'B'-Schedule properties in Ex.A1. It is
to be noted that though Item No.1 of the suit schedule property was also allotted to
the first defendant under Ex.A1, partition deed, a portion of the house has been
released in favour of the fourth defendant. This fact is not disputed. Ex.A3,
recitals indicate that the first item of the suit property was originally owned by the
fourth defendant. In the Court auction, the said property had been purchased in
the name of the father of the plaintiff in benami of the father of the fourth
defendant in the year 1973. That apart, the said portion has been reverted back to
the family of the fourth defendant. The documents filed on the side of the fourth
defendant and the evidence of the plaintiff itself clearly show that only the fourth
defendant was in absolute enjoyment of the property for all these years. The
documents under Ex.B14 to Ex.B25, Ex.B26 to Ex.B71, receipts also stand in the
name of the fourth defendant's father and fourth defendant. The plaintiff also
admitted in his evidence that only the fourth defendant was enjoying the portion of
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the first item of the suit properties. These facts clearly establish the facts that there
are some arrangements between the fourth defendant's father and the first
defendant's father. Since the portion of the first item of the suit property was
allotted under the partition deed of the year 1952 and retained by the first
defendant, this Court is of the definite view that the plaintiff is entitled to a share
in the property retained after release of other portion in Ex.A3.
17. It is relevant to note that original partition deed was executed in the
year 1967. The plaintiff has not raised any issues and the same was also acted
upon. The first defendant also spoken that he is in possession of the property
allotted to him under Ex.A4. Only for the first time in the year 2003, the plaintiff
made a plea that he came to know that some other properties were omitted in the
partition deed. It is relevant to note that Item Nos.2 and 3 were purchased in the
year 1954. The documents filed viz., Ex.A2, when carefully perused, it is evident
that the first defendant had purchased the property in the year 1954.
18. During the partition in the year 1967, the plaintiff was very much
aware that these properties are also available in the name of the first defendant.
The plaintiff was major at the time of entering into the partition deed under Ex.A4.
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Therefore, the contention of the plaintiff that he came to know about the left out
properties only in the year 2003 is highly improbable and cannot be countenanced.
Further, the very contention of the defendants that only family properties alone
were the subject matter of the partition deed is more probable. If these properties
under Ex.A2 and Ex.A3 were also treated as joint family properties, the plaintiff
would not have accepted the very allotment of few properties. However, for the
first time before filing the suit, he pleaded as if he came to know about the same
only in the year 2003. It is highly improbable.
19. Further to show what was the income generated from the property
allotted under Ex.A1 and it was sufficient to purchase the property, absolutely
there is no evidence available on record. But Ex.B1, Will dated 17.01.1949 shows
that the first defendant got the properties through the said Will, by which he
earned income. When the head of the family i.e., the father of the first defendan is
able to show that he had sufficient income from other properties, it is on the
plaintiff to show that only from the joint family properties, his father had
purchased other properties in his name.
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20. The evidence of P.W.1 clearly indicates that after the partition under
Ex.A1, the plaintiff was residing separately along with his mother. Prior to that
according to him, he was not maintaining cordial relationship with his father 1st
defendant. The plaintiff was in the stage of understanding the nature of things
around him as he was a major at the time of execution of the partition deed. He
ought have known about the properties owned by his father. However, he had not
raised any dispute, till 2004. In such view of the matter, in the absence of any
evidence to show that Item Nos.2 and 3 were purchased out of the joint family
properties, since the first defendant produced some documents to show that certain
properties have been bequeathed to him in the year 1949, this Court is unable to
countenance the contention of the plaintiff to hold that in Item Nos.2 and 3,
purchased only out of the joint family income.
21. As far as item No.4 is concerned, the plaintiff is certainly not entitled
to any share as it not a family property. As far as Item No.5 is concerned, it is the
contention of the first defendant that he had purchased the property out of his own
self income and admittedly separate properties also allotted to them. This Court is
of the view that the plaintiff is not entitled to a share in that property.
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22. As far as Item Nos.6 and 7 is concerned, the same had been allotted
to the brother of the plaintiff one Chandra Sekaran in the partition deed dated
12.01.1952. It is an admitted fact that Chandra Sekaran died issueless in the year
1987. The only Clause 1 legal heir, mother also died on 14.07.1989. Therefore,
share of Chandrasekaran devolved on his mother at the time of his death.
Therefore, mother become entitled to the property allotted to predeceased son
Chandrasekaran. The plaintiff pleaded in his pleadings that after the death of her
brother in the year 1987, he demanded partition with his father in the year 1989,
which is within the two years of the death of his brother. However, the same was
refused by the father. Only on the basis of the above, the trial Court has non-suited
the plaintiff in respect of the shares in the brother's property.
23. It is relevant to note that admittedly, the father of the plaintiff was
managing the property and merely he was enjoying the property and mutation also
stood in his name, adverse possession cannot be inferred after the death of
Chandrasekaran. Plaintiff's mother was very much alive at the time of death of her
son. It is admitted by the parties that mother died only on 14.07.1989. Therefore,
as far as Chandrasekaran's share is concerned, as a I class legal heir, the mother is
entitled to the entire properties allotted to Chandrasekaran. On her death, the
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plaintiff as well as the defendants 1 to 3 are legally entitled to the shares.
24. The evidence of the plaintiff also indicates that the father was also in
exclusive possession of the said property and also mutated the records in his name.
His evidence itself clearly indicates that the plaintiff is not in cordial terms with
his father and they are at loggerheads for several decades. Further, merely on the
basis of the mutation, ouster and adverse possession cannot be inferred. Though
there may be some misunderstanding between the father and son i.e., plaintiff and
the first defendant, unless the plea of adverse possession is proved with
convincing evidence, mere possession of the property by the father, being the
eldest in the family, will not convert the possession adverse to the interest of other
co-owners. Such view of the matter, the trial Court rejecting the partition in
respect of item Nos.6, 7 and 8, which was originally allotted to Chandrasekaran is
set aside. Accordingly, the plaintiff is entitled to 1/4th share in the said items,
which was the subject matter of the shares allotted to Chandrasekaran.
25. In the result, this Appeal suit is partly allowed. The suit is decreed
for 1/4 share in a portion of the first item of suit property, namely in T.S.No.748 in
Ward No.18, Tallakulam Perumal Koil Street, Madurai and 1/4 share in Item Nos.
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6, 7 and 8 of the suit property. With regard to the other properties, the findings of
the trial Court is hereby confirmed. No costs. Consequently, connected
miscellaneous petition is closed.
A.S.(MD)No.180 of 2020:
26. The suit has been filed by the plaintiff, who is one of the brother of
the defendants, for partition of 'A' 'B' and 'C' schedule of properties, permanent
injunction and for declaration to declare that the plaintiff is entitled to manage the
Trust.
27. The trial Court has dismissed the suit filed for partition on the
ground that the Will and Gift Settlement Deed executed by the father of the parties
have been proved. However, granted declaration in respect of 'D' schedule
property in favour of the plaintiff. As against the decree in favour of the plaintiff
in respect of 'D' schedule property, no appeal has been filed by the defendants.
Whereas present appeal has been filed by the plaintiff challenging the dismissal of
the suit in respect of 'A' 'B' and 'C' schedule of properties.
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28. For the sake of convenience, the parties are referred to herein, as per
their own ranking before the Trial Court in O.S.No.11 of 2014.
29. Though the facts are connected with earlier Appeal suit in A.S.No.
190 of 2008, for disposal of the present suit, the brief facts are necessary, which
are as follows:
(i) It is the case of the plaintiff that the grandfather of the plaintiff and
the defendants viz., one Mothi Periya Karuppanan Ambalam was a Landlord and
he owned large properties. On 12.11.1952, a registered partition was entered
between the grandfather, father and paternal granduncles of the plaintiff. In the
said partition, the plaintiff's father was allotted 'B' schedule properties. From out of
the earnings from the above said property, the plaintiff's father purchased more
property and treated the same joint family properties.
(ii) In the year 1967, the plaintiff's father had developed illegal
relationship with other women and in order to save the property, the plaintiff's
mother insisted the plaintiff's father to divide the properties. At that time, the
plaintiff was a student and his mother was an illiterate. Therefore, a partition deed
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came to be executed on 12.11.1967, believing the representation of the petitioner's
father.
(iii) Only in the month of January 2003, the plaintiff came to know that
the plaintiff's father had suppressed certain properties allotted to him under the
partition deed dated 12.11.1952 and purchased by him from out of the earning of
the properties allotted to him. The plaintiff's brother one Chandrasekaran died as
intestate on 16.09.1987 without any issues. Hence, the plaintiff is entitled to 1/4 th
share in the properties allotted to Chandrasekaran. The plaintiff has already filed a
suit for partition in O.S.No.477 of 2003 on the file Principal Sub Court, Madurai
(which was the subject matter of appeal in A.S.No.190 of 2008), in respect of the
properties allotted to his father through the partition deed dated 12.11.1952 and
the properties allotted to his brother Chandrasekaran in the deed dated 12.11.1967.
(iv) It is also the further contention of the plaintiff that some of the
properties also came to his father by way of a Will dated 17.01.1949, executed by
the son of the paternal aunt of the plaintiff's father in favour of his father.
Therefore, after the death of the testator, the plaintiff's father was also become
entitled to the property bequeathed under the said Will. Thereafter, a partition
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deed was also executed between the plaintiff's father and his brothers on
18.06.1970 in respect of the property bequeathed under the Will. The plaintiff's
father also owned other property and patta also stands in his name which has been
described as 'C' schedule property. As far as the 'D' schedule property is
concerned, it is a Trust property and the Plaintiff is entitled to manage the trust
once in twelve years. According to the plaintiff, his father expired on
02.11.2013. The defendants are enjoying 'A' 'B' and 'C” schedule of properties.
Hence, the suit.
(v) In the reply statement, the plaintiff denied the execution of Will and the
settlement deed executed by his father. Further, it is contended that his father was
not in a sound disposing state of mind and he was not having mental faculties.
30. The 2nd defendant has filed a written statement, which was adopted by
the first defendant. It is admitted that the suit 'A' schedule properties were allotted
to the father of the plaintiff and defendants 2 and 3 viz., Mothi Ayyan Ambalam
under a registered partition deed dated 12.11.1967, the suit 'B' schedule properties
were allotted to Mothi Ayyan Ambalam under a registered partition deed dated
18.06.1970 and 'C' schedule properties admittedly, the patta of the same stand in
the name of the father of the plaintiff and 'D' schedule property in which the father
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of the plaintiff was managing the Trustee at that time of the Trust deed dated
18.06.1970 and thus, all the properties became absolute properties of the father of
the plaintiff and the defendants.
31. It is further stated in the written statement that during the life time of
his father, the plaintiff had personal enmity and also hatred towards his father and
hence, he filed a suit in O.S.No.477 of 2003 on the file of the Principal Sub Court,
Madurai, for partition of his self acquired properties and the same was dismissed
on 30.11.2007. The plaintiff was always acted against his father during his life
time and the 2nd defendant alone looked after him and also took care of his health.
Having consideration of the care and attention, the father of the plaintiff has
executed a registered Will dated 02.03.2007 in favour of the 2nd defendant, out of
his own volition and bequeathed all the plaint schedule properties. Thus, on the
demise of this father, the 2nd defendant become the absolute owner of the property
and he was in possession and enjoyment of the same.
32. In the additional written statement, it was also contended by the 2nd
defendant that the plaintiff was not in joint possession. Besides his father has also
executed a Settlement Deed dated 14.12.2012, in respect of some of the properties
in favour of the 2nd defendant. Therefore, the plaintiff is not entitled to any claim.
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33. Based on the above pleadings, the trial Court has framed the following
issues:
1.Whether the plaintiff is entitled 1/3rd share in 'A', 'B' and 'C'
schedule properties?
2. Whether the plaintiff is entitled to manage the trust namely
Mothi Periyakaruppan Ambalam Trust?
3.Whether the plaintiff is entitled to the preliminary decree for
partition of 1/3rd share as prayed for?
4.Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?
5.Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?
6.Whether the Court fee paid is correct?
7.To what other relief and cost the plaintiff is entitled to?
34. The trial Court has also framed the following additional issues:
“8. Whether the Gift Settlement Deed dated 14.12.2012 is true and
valid?
9.Whether the Will dated 02.03.2007 is true and valid?”
35. Before the trial Court, on the side of the plaintiff, three witnesses were
examined as P.W.1 to P.W.3 and 15 documents were marked as Ex.A1 to A15. On
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the side of the defendants, three witnesses were examined as D.W.1 to D.W.3 and
15 documents were marked as Ex.B1 to Ex.B15.
36. On the basis of the above pleadings, the trial Court has dismissed the
suit by upholding the Will Ex.B2, dated 02.03.2007 and Ex.B3-settlement deed
dated 14.12.2012, executed by the father of the plaintiff.
37. Though on the side of the plaintiff, three witnesses were examined, on a
perusal of the records of the trial Court, particularly, notes paper, it appears that
after the defendants' side evidence was closed, the plaintiff has filed an application
seeking permission to adduce evidence in the form of rebuttal and for examining
additional evidence. An application was filed in I.A.No.87 of 2017 in I.A.No.729
of 2016. The trial Court has allowed that application and permitted the plaintiff to
examine D.W.3 in the form of rebuttal evidence. After allowing the said
application, D.W.3 has filed the proof affidavit. In the meanwhile, the order
allowing rebuttal evidence was challenged in C.M.A.No.604 of 20117. The said
CMA was allowed by this Court on 11.10.2017. Therefore, once the order
allowing the further evidence is set aside, the evidence of D.W.3 cannot be looked
into for any other purpose. Be that as it may. The trial Court has dismissed the
suit upholding the Will and Gift Settlement deed.
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38. It is the contention of the learned counsel appearing for the plaintiff /
appellant that since the question as to whether the properties are self acquisition or
from the nucleus of the joint family properties was raised in other suit viz., A.S.
(MD)No.190 of 2008, the crux of the issue in this matter is with regard to the
validity of the Will and Gift settlement Deed. According to him, under 1952
partition deed, 'B' schedule of the properties have been allotted to the father of the
plaintiff and out of the earning from the said property, the plaintiff's father
purchased more properties. The same clearly indicates that those properties have
been purchased out of the nucleus from the joint family property allotted to the
plaintiff's father in the year 1952.
39. Though it is the contention of the plaintiff / appellant that those
properties were purchased out of separate income from the properties bequeathed
to the plaintiff's father in the year 1949, it is a joint Will executed in favour of the
plaintiff's father and his brothers. Therefore, in the absence of any evidence to
show the nature of the income to those properties, it has to be presumed that 'B'
schedule of the property has also been purchased out of the nucleus of the joint
family property. As far as the 'C' schedule property is concerned, it is the
contention of the learned counsel appearing for the plaintiff / appellant that
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admittedly, the properties were acquired by the plaintiff's father and patta also
stands in his name. That apart, the properties allotted to one of the plaintiff's
brother one Chandrasekaran is also enjoyed by the plaintiff's father. The said
Chandrasekaran died as a bachelor on 16.09.1987.
40. Further, it is the contention of the learned counsel appearing for the
plaintiff / appellant that as far as the Will dated 02.03.2007 is concerned, that do
not contain any survey number. The fact remains that after execution of the Will, a
Settlement deed dated 14.12.2012 was also executed in respect of some of the
properties bequeathed under the Will. Therefore, it is his contention that when the
testator has transferred the properties covered under the Will in subsequent
document, his intention to revoke the Will could be easily inferred. Therefore, the
Will was automatically revoked by the subsequent disposition made under Ex.B3-
Gift Settlement Deed. Though the Gift Settlement Deed has not been established
by examining any of the attesting witnesses, the fact remains that the transfer of
the property of the settler, after the Will, it can be very well inferred that the
testator has in fact intended to revoke the former Will.
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41. Therefore, his contention that the Will also cannot be given effect. The
Will, according to him, has been attested in one day and registered after 10 days.
This also one of the suspicious circumstances about Ex.B2, Will dated 02.03.2007.
A Gift Settlement Deed was also executed on 14.12.2012, in respect of the major
portion of the property covered under the Will. Therefore, it is the submission of
the learned counsel appearing for the plaintiff / appellant that the Will has been
automatically revoked and cannot be given any effect. The witness D.W.2 and
D.W.3, who also happened to be attesting witness in the Gift Settlement Deed,
have not spoken about the Settlement Deed. Despite the fact that the execution
and attestation of the settlement deed has not been established, the trial Court has
believed the Settlement Deed, which is contrary to the settled position of law.
Hence, submitted that the plaintiff being the son certainly entitled to share in the
property left by his father.
42. Whereas, the learned Senior Counsel appearing for the defendants /
respondents would submit that the plaintiff had all along shown hatred against his
father. In fact, he has filed a previous suit, wherein he has made a serious
allegation against his father that he was leading an immoral life. In fact the father
of plaintiff was examined in previous suit. He has also deposed against his son.
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The evidence of former suit clearly shows that plaintiff not at all residing with his
father and only the second defendant was taking care of his father till his death. In
fact, in the earlier suit, he has challenged the very partition deed dated 12.11.1967,
after a period of 36 years on the ground that it was only a partial partition.
Whereas, P.W.1, in his cross examination has categorically admitted that he and
all his brothers were allotted to 12 acres each in the partition of the year 1967.
Further, in a previous case, he has challenged the partition on the ground that it
was a result of undue influence, which has not been established.
43. Whereas, in the present suit, the plaintiff has never whispered anything
about partial partition as well as the undue influence etc. The very conduct of the
plaintiff clearly indicates that he is not in cordial terms with his father from the
beginning. Therefore, execution of the Will to the other son, who is taking care of
him, is natural. The Will has been proved by the evidences of D.W.2 and D.W.3,
who are the attesting witnesses and one of the attesting witnesses are also very
close to the plaintiff and defendants, no motive whatsoever established against
him for giving evidence as to the execution as well as the attestation of the
documents. Hence, submitted that Will has been clearly established on record.
Admittedly all the properties viz., schedule 'A' 'B' and 'C' are the self acquired
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properties of the plaintiff's father, Further, it his contention that mere execution of
settlement deed in respect of some of the properties by the plaintiff's father later,
the Will will not be revoked automatically, unless it is established that there was
an intention on the part of the testator to revoke the Will. Merely because of the
subsequent document, the Will can not be revoked. In fact, the Will would be
revived and can be given effect. Admittedly, in this case, settlement deed has not
been established by examining the attesting witnesses. Such being a position, the
Will would be automatically revived and it would be taken effect, once it is proved
in the manner known to law. Therefore, the trial Court has rightly dismissed the
suit. Hence, prays for dismissal of this appeal.
44. In the light of the above submissions, now the points arise for
consideration in this Appeal Suit are as follows:
1. Whether the gift settlement deed dated 14.12.2012 executed
in respect of the properties covered under the Will would
automatically revoke the Will?
2. Whether the said revocation can be inferred merely on the
basis of subsequent document?
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3.Whether the Will dated 02.03.2007 is valid and true and
suffered from any suspicious circumstances?
4.Whether the suit properties are available for partition as
prayed by the plaintiff?
5. To what other relief, the plaintiff is entitled to?
Point Nos:1 and 2
45. From the facts narrated above, it is not in dispute that originally the
father of the parties were allotted to certain properties in the year 1952. It is the
contention of the plaintiff that ever since from the date of such allotment, the
properties were treated as joint family property. Thereafter, other properties were
also purchased in the year 1954. It is relevant to note that with regard to the
specific issue as to whether the property is ancestral properties or self acquisition
made by the father, a separate suit has been filed, which is the subject matter of
A.S.No.190 of 2008.
46. On a perusal of the evidence adduced, this Court has come to the
conclusion that the acquisition made by the father in the year 1954 is self
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acquisition. At the relevant point of time he has also got the property by way of
Will of the year 1949, executed by husband of the paternal aunt of the plaintiff's
father. The plaintiff has pleaded in the earlier suit that there was a partial partition
of the year 1967 and certain properties have not been included in those partition.
This Court has held that the plea of partition partition has not been established.
Further the plea that said partition of the year 1967 was a result of undue
influence, fraud and coercion has also not been established. The evidence of P.W.
1, in the cross examination, clearly shows that the partition of the year 1967 is not
a partial partition.
47. According to the plaintiff, the plaintiff and the other defendants were
allotted 12 acres each at the relevant point of time. This aspect clearly shows that
the plaintiff's contention cannot be true. Now the issue in this suit is with regard
to the shares in the property of the plaintiff's father allotted in 1967 partition deed
and also the properties came to the plaintiff's father under the Will 1949, similarly,
the property allotted to one of the brother of the plaintiff viz., one Chandrasekaran,
who died issueless in the year 1987.
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48. It is relevant to note that mere long possession of the properties, left by
Chandrasekaran, by the plaintiff's father cannot be adverse to other co-owner.
Merely because, the revenue records stand in the name of the plaintiff's father, the
plea of adverse possession cannot be inferred. To prove the plea of adverse
possession, essential ingredients of adverse possession that are nec vi, nec clam,
nec precario have to be established. In law, generally, the possession of property
by one co-owner is deemed to be in possession of other co-owner. Therefore, the
plea of adverse possession set up in respect of the property allotted to one of the
brothers of the plaintiff has to fail. Accordingly, any testament in respect of those
property, except the share of the plaintiff's father, cannot be valid in the eye of law.
Accordingly, these points are answered.
Point Nos.3 to 5:
49. As far as the Will is concerned, the Will has been marked as Ex.B2,
dated 02.03.2007. The Will has been executed in favour of the second defendant,
who is the youngest brother of the plaintiff, by the father of the plaintiff. The first
defendant and other brothers have not disputed the Will. The Will is a registered
one. Two of the attestators were also examined before the trial Court as D.W.2
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and D.W.3. On a perusal of the entire evidence, it is the unison voice of them that
the testator was in sound state of mind, while executing the Will. The Will has
been executed in their presence on 02.03.2007. Both the witnesses have clearly
spoken about the signing of the testator and they have clearly spoken not only
about execution but also an attestation.
50. It is also relevant to note that one of the attesting witnesses viz., D.W.3-
Ilango is none other than the plaintiff's own uncle's son. The evidence of D.W.3
clearly indicates that there was no motive whatsoever for him to give false
evidence and he was cordial with the plaintiff also. Similarly, D.W.2-one Siddique
was also examined and in his evidence, he has stated that he was maintained
cordial relationship with the second defendant. When there was no motive was
established on the side of the plaintiff for giving false evidence by D.W.2 and
D.W.3, the evidence of D.W.2 and D.W.3 cannot be disbelieved merely on the
basis of the contention of the plaintiff that testator was not in sound state of mind.
51. In fact, plaintiff himself has admitted in his evidence that D.W.3 is his
own uncle's son. D.W.2, also known to him and there was a cordial relationship
with them. The very evidence of P.W.1, makes it clear that second defendant has
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not married and only the second defendant has spent marriage expenses of the first
defendant's daughter and he sold certain properties allotted to him for the said
marriage. P.W.1 had feign ignorance to all the facts. P.W.1 has also admitted that
he has no cordial relationship with his son and he has denied the suggestion that
only D.W.2 is helping his son.
52. Be that as it may. Except contending that the plaintiff's father was not in
sound state of mind no other evidence whatsoever available on record to show that
in fact the plaintiff's father was not in sound state of mind to take a rational
decision. It is relevant to note that the plaintiff himself accused his father in filing
a suit making allegation that he was leading an immoral life. The plaint of the said
suit was marked as Ex.A8. Further, the evidence adduced by the plaintiff in this
suit also clearly shows that he was not cordial relationship with his father and
there was misunderstanding from the year 1967. Therefore, this Court is of the
view that mere disinheritance of other sons particularly the plaintiff, it cannot be
said it is one of the suspicious circumstances. The first defendant is also not
disputed the Will. The evidence of P.W.1 clearly indicates that the second
defendant was taking care of his others brother's son and daughter also. This fact
was also not seriously disputed by the plaintiff. Second defendant was residing
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with his father till his life time. Therefore, the father executing the Will cannot be
found fault with. P.W.2 one of the witnesses claiming to be the family members of
the plaintiff and defendants was examined by the plaintiff to show that the testator
was not in sound state of mind. In his evidence, he stated that the testator was not
in sound state of mind from January 2007.
53. On a perusal of the cross examination of P.W.2, it is seen that he has
been made to speak only on behalf of the plaintiff. If really, P.W.2 was very close
to the family members of the plaintiff and defendants, he would have atleast
known the three sons of Mothi Ayyan Ambalam and he has stated that the three
sons of Mothi Ayyan Ambalam was alive on the date of his evidence i.e., on
09.03.2006, which is totally contrary to the fact. In fact one of the sons of Mothi
Ayyan Ambalam died in the year 1987 and the same has been clearly established.
Therefore, the evidence of P.W.2 that he is close to the family member is also
highly doubtful. Further in the cross examination, he has stated that he has seen
Mothi Ayyan Ambalam only for 4 or 5 years back, that itself shows that he would
have seen only around 2011-12. Therefore his evidence that the testator was not
well from 2007 is also highly improbable and it cannot be countenanced.
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54. Such view of the matter, as no suspicious circumstances brought on
record, the evidences of D.W.2 and D.W.3 clearly proved not only the execution
but also attestation as required under law. Further, considering the surrounding
circumstances that the plaintiff always had shown hatredness with his father and
he has also accused about his character, the plaintiff's father has executed the Will
in favour of the second defendant. The contention of the learned counsel for the
plaintiff / appellant that Will-Ex.B2 did not contain any survey number or
description of the property and therefore, the same will not be given effect also has
no merit.
55. It is relevant to note that Will is a legal declaration of intention of the
testator with respect of his property, which he desires to be carried into effect after
his death, as per definition of Section 2(h) of the Indian Succession Act, 1925.
When the Will has clearly mentioned about his property and possession of the
various properties, mere non description of the survey number is not a ground to
reject the Will. Mere lack of description of the property, which the testator intends
to bequeath, can be sufficiently identified from the description of it given in the
Will and that itself sufficient to give effect to the Will. On perusal of the entire
Will, this Court is of the view there is no patent ambiguity with regard to the
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property. Such view of the matter, the contention of the learned counsel for the
plaintiff / appellant cannot be countenanced.
56. As far as the other contention of the learned counsel for the plaintiff /
appellant that admittedly in this case, after execution of the Will in the year 2007,
a Settlement Deed was also executed in respect of the major portions of the
property bequeathed under the Will to the same person. Therefore, it is his
contention that once the executor has executed the settlement deed, the Will has
been automatically revoked and it will not revive. According to the learned
counsel, Section 70 of the Indian Succession Act, 1925 deal with revocation of
unprivileged Will or Codicil. According to him, when some other document was
executed in respect of the same property, the intention of the testator to revoke the
Will can be easily inferred from the conduct of the parties and the subsequent
registered document. Therefore, it his contention that the Will Ex.B2 was
automatically cancelled or otherwise revoked by subsequent settlement deed. No
doubt some of the property, which was covered under the Will, was also the
subject matter of the settlement deed Ex.B3 dated 14.12.2012. This is also a
registered settlement deed.
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57. It is to be noted that the settlement deed was also executed in favour of
the same legatee, the second defendant herein. It is pertinent to note that even
taking a plea in the additional written statement, despite the fact that the two
attesting witnesses were examined to prove the Will, who are also the attesting
witnesses for the settlement deed, the attestation and execution of the document
viz., Ex.B3 has not been proved by the defendants through the said witnesses. It is
admitted fact that the attesting witnesses D.W.2 and D.W.3 are also attesting
witnesses in the subsequent document. However, they have not spoken anything
about the attestation or execution of Ex.B3. No attempt whatsoever has been made
by the lower Court counsel in this regard for the reasons best known to them.
Therefore, once the document Ex.B3 also denied in the additional written
statement by the plaintiff, it is the duty of the second defendant to take steps to
prove the document in the manner known to law by examining any of the attesting
witnesses as contemplated under Section 68 of the Act, which has not been so.
Therefore, in the absence of proof as required under the law, Ex.3 cannot be valid
under law. In fact, the said document was also denied by the defendants in the
additional pleadings by way of reply statement. Therefore, the judgment of the
trial Court upholding Ex.B3 is not valid in the eye of law.
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58. Now the important question raised by the learned counsel for the
plaintiff / appellant counsel is that once the testator has executed Ex.B3,
transferring the properties contained in the Will, then the Will has automatically
revoked. It is relevant to note that no unprivileged Will or codicil, nor any part
thereof, shall be revoked otherwise than by marriage or by another Will or codicil,
or by some writing declaring an intention to revoke the same and executed in the
manner in which an unprivileged Will is required to be executed or by the burning,
tearing or otherwise destroying the same by the testator or by some person in his
presence and by his direction with the intention of revoking the same. This is the
mode of revocation of the unprivileged Will as contemplated under Section 70 of
the Indian Succession Act, 1925.
59. On a perusal of Ex.B3, it is seen that there is no whisper whatsoever
with regard to the revoking of the former Will. The subsequent document itself
clearly indicates that the attestator had no intention whatsoever to revoke the
former Will. If the intention to revoke the former Will was very much on the mind
of the testator, the same should have been reflected in the subsequent deed of
settlement. However, in the subsequent settlement the intention to revoke the
former Will has not been found. Therefore, the contention of the learned counsel
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that mere execution of the settlement deed, the Will automatically goes, also
cannot be countenanced for the simple reason of Doctrine of dependant relative
revocation. The revocation of the Will may be relative to another disposition
which has already been made or is intended to be made and is so dependant on it
that revocation is not intended unless that other disposition takes effect. When the
subsequent disposition in the form of settlement has failed to take effect, the Will
remains operative as it was before the revocation. It is also relevant to note that
subsequent disposition by way of settlement depend upon the validity of the
document in law. When the very subsequent document has not been established as
per law before the Court of law, such document will not take effect in respect of
the transfer made by the said deed. Such being the position, the former Will
executed and proved in the manner known to law will revive.
60. In this regard, it is also useful to refer the judgment of the Division
Bench of this Court in Appeal No.231 of 1977, dated 24.03.1980 [Salem Town
Bazaar Street, Kannika Parameswari Devasthanam, represented by Trustee Vs.
T.K.Sadasivam Chettiar], wherein it is held as follows:
“14. The question that now requires to be considered is whether
there is automatic revival of the will by reason of the settlement having
become ineffective, it having been found to be void. In the settlement
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deed Exhibit B-4 dated 30th October, 1968, it is stated that the property
was acquired tinder a conveyance by Subramaniam and that it
belonged to the settlor as a self-acquired and as an absolute property.
We have already seen that this claim has absolutely no scope for
acceptance and therefore, we have to proceed on the basis that the
property belonged to the joint family consisting of the plaintiff and his
father, the settlor. In the settlement, it is stated that there was no
connection between the father and son. This is contrary to the tenor of
the correspondence exhibited. There is absolutely no evidence also to
show that there was any kind of partition between Nandagopal and his
son, and in fact both parties proceeded on the basis that there was no
partition between Nandagopal and his son Sadasivam, the plaintiff.
There is a further observation in the settlement to the effect-
“,g;NghNj mbapy; fz;l nrhj;jpd; ghj;aijia
Nkw;gb Njt];jhdj;jpw;F buhd;]g
; h; nra;a
vz;zp ,d;W ,e;j jh;k nrl;by;kz;L bu];L gj;jpuj;ij
vOjp itj;jpUf;fpNwd;. ,e;j gj;jpuj;jpd; %ypak; Nkw;gb
21.08.1966 Njjpapy; vd;dhy; vOjp itf;fg;gl;lJk; Nryk;
hp[p];jh; Mgp]py; 34, 51, 27, 11, 14 gf;fk; 1996k; tUlk;
81k; nek;guhf hp[p];jh; nra;J itj;jpUf;Fk; capy;
rhrdj;ij uj;J nra;J tpl;Nld;”
15. The above passage from the settlement deed would show that
the will was cancelled only because he wanted to accelerate the interest
of the temple and that too even during, his lifetime. The will would have
to come into effect only after the lifetime of Nandagopal. He wanted to
convey the interest in praesenti with reference to that property and that
was why this settlement came to be executed. The passage thus clearly
goes to show that the cancellation of the will was not an absolute one.
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In this context the principle, of "dependent relative revocation" invoked
by Mr. M. Srinivasan would require consideration. This principle is set
out in para-graph 1368 of Halsburys Laws of England, Third Edition,
Vol. 39 at page 899, as follows:
“In particular, revocation may be relative to another
disposition which has already been made or is intended to be
made, and so dependent thereon that revocation is not intended
unless that other disposition takes effect. Such a revocation is
known as; dependent relative revocation, and, if from any cause
the other disposition fails to take effect, the will remains
operative as it was before the revocation.”
It has been pointed out in the foot note, to the above passage as under:
“In such a case the animus revacandi has only a
conditional existence; the condition being the validity of the
disposition intended' to be substituted.”
(See Powell v. Powell (1866) L.R.I.P. and D. 209 212.)
16. In the same volume of Halsbury's Laws of England, at page
900, there is the following passage:
“In all these and other cases however, the question is
whether the disposition revoked is intended not to operate
whatever happens or is only to be destroyed if the provisions of
the substituted instrument operate in its stead. The Court must
be satisfied that the testator did not intend to revoke the original
will except conditionally, in so far as the other disposition could
be sent up.”
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At page 888 in paragraph 1353, there is another passage which also
deals with this doctrine in relation to the revocation of a will, and
which is as follows:
“To effect a revocation there must be an intention to
revoke and a will is not revoked by any presumption of
intention based on an alteration of circumstances. If anything
is done by the testator or by his direction which, if there was an
intention to revoke, would amount to a revocation, the
presumption of law from that act is in favour of the existence
of the animus revocandi, but this presumption may be rebutted
by evidence showing that the animus revocandi did not exist.
An act done without that intention is wholly ineffectual, even
if the act results in the destruction of the will. Thus, no
revocation results where a testator destroys the will through
inadvertence, or under the belief that it is useless or invalid or
has already been revoked, or where he is drunk at the time of
an alleged revocation or where he is insane at the time even
though he may afterwards recover.”
In Re-Wells' Trusts, Handisty v. Wells (1889) 42 Ch.D. 646, to which
reference has been made in the footnote to the above passage as
follows, there was first a disposal of a fund under a will and then, as
here, by a deed. The disposition under the deed was void to the extent
of one fifth. It was held that to this extent, the bequest under the will
was effective. Thus, there is scope for a revival of the will in case the
intention of the testator was not to cancel the will unconditionally. This
doctrine has been applied by a Full Bench of the Trivancore-Cochin
High Court in Thresia v. Lonan Mathew A.I.R. 1956 T.C. 186(F.B.),and
re-affirmed in Antony v. Mathew A.I.R. 1962 Ker. 48. The latter case is
merely an offshoot of the former one.”
https://www.mhc.tn.gov.in/judis
A.S.(MD)Nos.190 of 2008 and 180 of 2020
61. Considering the above dictum and also considering the facts of the case,
this Court is of the view that even in the subsequent settlement, there was no
intention to cancel the previous bequeath and the subsequent document has also
been executed in favour of the same legatee in respect of the same property. Once
the subsequent deed is found to be invalid under law and did not take effect, the
Will executed previously remains operative and become effective on its proof as
required under law. Admittedly, in this case, will has been proved in the manner
required under law by examining the attesting witnesses. Further, no other
suspicious circumstances whatsoever brought on record. Since no suspicious
circumstances was brought on record, the question of dispelling the same by the
propounder does not arise at all.
62. Such view of the matter, the Will is valid in all other aspects, except 1/4 th
share in the property allotted to Chandra Sekaran, who is one of the deceased son
of the testator in the partition deed 1967. Admittedly, after the death of
Chandrasekaran in the year 1987, his mother was alive as Class I legal heir she
become entitled the property of his son Chandrasekaran. The mother of the
plaintiff died in the year 1989. On her death, plaintiff and defendants each entitled
to 1/4th share in the property. Father of the plaintiff entitled 1/4 th share in the
https://www.mhc.tn.gov.in/judis
A.S.(MD)Nos.190 of 2008 and 180 of 2020
property allotted to his son. Therefore, Will in respect of Chandrasekaran will be
valid only in respect of 1/4th share alone, remaining 3/4th share will go to plaintiff
and his brothers equally.
63. Since the issue, with regard to the shares of the plaintiff in his brother's
property, is dealt with in other suit viz., A.S.(MD)No.190 of 2008, and preliminary
decree is granted holding that the plaintiff is entitled to 1/4 th share in the property
allotted to Chandra Sekaran in the partition deed 1967, no separate decree is
required in this suit.
64. Accordingly, A.S.(MD)No.180 of 2020 is dismissed holding that the
plaintiff is at the most entitled to 1/4th shares in the property allotted to his brother
Chandrasekan in respect of which already decree is granted in another suit viz.,
A.S.(MD)No.190 of 2008. Such view of the matter, no further decree is required
in this suit. No costs.
20.06.2023
NCC : Yes/NO
Index : Yes/No
Internet : Yes/No
ta/vsm
https://www.mhc.tn.gov.in/judis
A.S.(MD)Nos.190 of 2008 and 180 of 2020
To
1.The First Additional District Court, Madurai.
2.The Fifth Additional District Court, Madurai.
3.Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
A.S.(MD)Nos.190 of 2008 and 180 of 2020
N.SATHISH KUMAR, J.
ta/vsm
Judgment made in
A.S.(MD)Nos.190 of 2008 and 180 of 2020
20.06.2023
https://www.mhc.tn.gov.in/judis
