Topic: Nagarajan And Ors. vs Annammal

Nagarajan And Ors. vs Annammal
Equivalent citations: (1989) 1 MLJ 443 - Date of Judgment: 9 April, 1987

JUDGMENT

Sengottuvelan, J.

1. This second appeal is filed by defendants 4 to 7 in O.S. No. 1140 of 1968 on the file of the District Munsif of Thirupattur, challenging the legality and correctness of the judgment of the Subordinate Judge of Thiruvannamalai in A.S. No. 84 of 1975.

2. The facts of the case are briefly as follows: One Rajammal, the mother of Annammal the respondent herein filed the suit, O.S. No. 1140 of 1968 on the file of the District Munsif of Thiruppattur for declaration of her title to the suit properties and for a permanent injunction restraining the appellants from interfering with her possession of the suit properties. According to the plaint averments, Rajammal got the properties from her husband Kuppa Gounder by means of two sale deeds marked as Ex.A4 in respect of items 1 to 4 dated 12.8.1933 and Ex.A5 in respect of items 5 and 6 of the plaint schedule dt.30.6.34 such, that she had been in absolute possession and enjoyments that of the same and the defendants have no manner of right to interfere with her possession of the suit properties. Pending suit, Rajammal died leaving a will Ex.A19 dated 21.4.1971 bequeathing the properties in favour of her daughter Annammal who is the sole respondent in this appeal.

3. Kuppu Gounder had two wives Thiruvathal and the plaintiff in O.S. No. 1140 of 1968. Thiruvathal had only one daughter by name MU-nirathanammal, who is impleaded as 7th defendant in the suit and who is figuring as the 4th appellant in this second appeal. Thiruvathal died long ago. Through Rajammal, Kuppu Gounder had three daughters. The eldest daughter is Annammal the respondent herein. The other daughters are Thangammal, 1st defendant in the suit and Valliammal who died leaving one Velu Gounder, who is impleaded as 8th defendant. Defendants 2 and 3 are the husband and son of Thangammal, 1st defendant in the suit and Valliammal who died leaving one Velu Gounder, who is impleaded as 8th defendant. Defendants 2 and 3 are the husband and son of Thangammal, second daughter of Kuppa Gounder. The 6th defendant, 3rd appellant herein is the husband of Munirathanammal, 7th defendant 4th appellant in this second appeal. The relationship will be illustrated by means of a geneological table.

Rama Gounder Muniswamy

| |

__________________________________

| | |

|D | |

_______ Kuppa Gounder Rajammal P.1

| |

Thangavelu Thiruvathal |

D.6 Munirathanammal _______________________

|D7 | | |

| Thangammal Valliammal Annammal

| D1 Gopal

| Damodaran Velu D2

| D.6

_________________________

| | |

Nagarajan Yuvarajan Munuswamy

D.4 D.5 D.2

4. The defence to the claim for declaration of title and injunction by the several defendants is that the sale deeds Exs.A4 and A5 were sham and nominal documents and the same did not convey any right to Rajammal and after the death of Kuppa Gounder, all his heirs by both the wives are entitled to succeed to the properties.

5. The Court which originally tried the suit, on a consideration of the evidence let in, came to the conclusion that Exs.A4 and A5 sale deeds are valid and true, by which Rajammal got valid title and as such, the other heirs of Kuppa Gounder are not entitled to any right in respect of the suit properties. This appellants herein in the course of the trial of the suit produced a settlement deed purported to have been executed by late Kuppa Gounder on 25-10-25 a registration copy of which is marked as Ex.B1 conferring a life estate to Rajammal and after her lifetime, giving the property to the heirs of Kuppa Gounder. By means of Ex.B2 dated 27.5.60 long after the sale deeds Exs.A4 and A5 Kuppa Gounder, executed a deed of cancellation of the settlement deed Ex.B1. The Trial Court while considering these documents Exs.B1 and B2 observed that after a lapse of 40 years after the sale deeds Exs.A4 and A5, the appellants cannot claim any right under Ex.B1.

6. In so far as the will executed by Rajammal, viz., Ex.A19 is concerned, relying on the testimony of the attestor examined as P.W.2, the Trial Court came to the conclusion that the will is true and valid. On the basis of the above said findings, the Trial Court decreed the suit as prayed for. As against the said judgment, the appellants herein filed A.S. No. 84 of 1975 on the file of the Subordinate Judge of Tiruvannamalai, challenging the correctness of the Judgment of the District Munsif. The learned Subordinate Judge on a consideration of the evidence came to the conclusion that the sale deeds Exs.A4 and A5 are validly executed by late Kuppa Gounder, and that by said documents, late Kuppa Gounder, had alienated the suit properties in favour of Rajammal. The Appellate Court also came to the conclusion that since the properties had been parted with by Kuppa Gounder as early as 1934, the appellants herein cannot claim that they are entitled to a vested interest on the basis of the earlier settlement deed Ex.B.1 dated 25.10.1925. On the basis of the above conclusion, the subordinate Judge dismissed the appeal. This second appeal is filed challenging the legality and correctness of the judgment of the learned Subordinate Judge.

7. Mr. Selvarajan appearing for the appellants raised the following contention in support of his argument that the judgment and decree of both the Courts below are not sustainable in law. 1 Even prior to the sale deeds Exs.A-4 and A-5 Kuppa Gounder had parted with the properties by executing a settlement deed Ex.B-1 dated 25.10.25 giving life interest to his junior wife Rajammal and after her life time, giving the properties to his heirs. Hence the heirs of Kuppa Gounder had a vested interest which cannot be divested by any subsequent document. (ii) In any event, the will of Rajammal had not been proved in accordance with law and both the Courts below erred in upholding the will ExA-19.

8. In so far as the first contention is concerned, no doubt, there is an earlier settlement deed Ex.B1 dated 25.10.25 by which Kuppa Gounder gave a life interest to his wife Rajammal and after her death, the heirs of Kuppa Gounder are to get the properties. The said settlement deed has been cancelled by means of Ex.B-2 dated 27.5.60. The contention is that by means of Ex.B-1 the heirs of Kuppa Gounder had a vested right which cannot be subsequently divested by the execution of Ex.B-2. This contention had been considered by both the Courts below and both the Courts below held that in view of the fact that the sale deeds Exs.A4 and A5 came into operation, the earlier settlement deed could not have conveyed any right to either Rajammal or to the heirs of Kuppa Gounder. At this juncture, it will have to be borne in mind that in the written statement filed by the appellants, the contention that they are entitled to the vested remainder under Ex.B1, had not been taken. When no claim is put forward under the settlement deed Ex.B1 both the Courts below are not even entitled to enter into an adjudication in respect of the rights flowing from Ex.B1 and give a finding thereon. The proper thing will be to leave the rights of the parties flowing from Ex.B1 to a properly constituted suit without making half hearted observations of the right of the parties in this suit. Accordingly the rights of the appellants said to have arisen under Ex.B1 are left open. It is open to the respondent to come forward with all defences available to her under law, if and when a suit is filed.

9. In so far as the finding of both the Courts below on the sale deeds Exs.A-4 and A-5 is concerned, the same are based on a proper appreciation of the evidence and the conclusion of both the Courts below in this regard will have to be confirmed.

10. The second contention is that in any event, the will of Rajammal Ex.A-19 had not been proved in accordance with law and both the Courts below erred in upholding the will. The attestor to the will is examined as P.W.2. He has stated in the course of his examination that he saw the testatrix Rajammal signing Ex.A-19, and that himself, the other attestor the executant and the scribewere present at the time of the execution. But he omitted to say that Rajammal saw him attesting the will. According to the appellants, the execution of the will cannot said to be proved on account of the fact that the attestor did not depose that the testatrix saw the attestors signing the will and the learned Counsel placed reliance on the case reported in Girija Datt v. Gangotri Datt . where the Supreme Court held that in order to prove the due attestation of the will, the propounder of will has to prove that the witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Section 63(c) of the Indian Succession Act dealing with this aspect is as follows:

The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other persons and each of the witnesses shall sign the will in the presence of the testator.

In the above case, the Supreme Court came to the conclusion that the evidence let in does not carry conviction in the mind of the Court that the attestors saw the deceased signing the will and each of them appended his signature to the will in the presence of the deceased. The findings of the Court is that both the above aspects dealing with the proof of the will have not been established in the above case. But in the same volume, there is another Judgment of the Supreme Court in Naresh Charan v. Paresh Charan , in which a larger Bench of the Supreme Court held that.

It cannot be laid down as a matter of law that because the witnesses did not state in examination in-chief that they signed the will in the presence of the testator, there was due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.

In this case, P.W.2 has deposed that he has been the testator signing the will and himself, other attestors, the testator and the scribe were present at the time of the execution of the will and that he also signed the will as an attestor. The above facts spoken to by P.W.2 has been seriously challenged in cross examination. When the above said facts are proved the mere omission on the part of P.W.2 to say that the testator saw him attesting the will cannot be fatal to the proof of the will. On an appreciation of the entire evidence, there is no difficulty in coming to the conclusion that the will Ex.A-19 had been proved in accordance with law.

Hence the second contention also will have to be negatived.

11. In the result, there are no merits in the second appeal and the same is dismissed. However, in view of the relationship between the parties, there will be no order as to costs in this second appeal.