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Judgment
K. Chandru, J.—Heard both sides.
The Writ Petition and Second Appeal were grouped together on being specially ordered by the Administrative Judge and posted before this
Court.
The writ petition was filed by K.G.K. Ganesa Moorthy, 10th Respondent in the Second Appeal and the son of the first Defendant in the suit in
O.S. No. 177of 1998. The writ petition was filed challenging the order of the District Elementary Educational Officer, Tirunelveli, dated
20.11.2008, wherein and by which, it was informed that the writ Petitioner and. Sankaranarayanan, who is the impleaded 4thRespondent were
directed to submit certain documents for having the right of management over the Ganesamoorthy Middle School, Kurichi, Palayamkottai Circle.
It was found that Ganesa Moorthy Pillai, the former Manager had left a Will dated 17.02.1995, in which he had made his son K.G.
Kanthakumar to be the owner of the school. In a subsequent Will, dated28.02.1995, he had stated that both movable and immovable properties
will go to his two male heirs inequal parts. On 19.10.1996, a document was registeredat Parasalai, (which is a settlement) by which it was found
that the school building will be enjoyed absolutely by Kanthakumar. Since in the second Will dated 28.02.1995, it was stated that both the
movable and immovable properties were to be inherited by both the sons in equal shares, without any order of the Civil Court, the right of the
Management of the School cannot be considered by the Department and both the legal heirs were directed to approach the appropriate Civil
Court for getting appropriate relief. Challenging the said order, the writ petition came tobe filed.
After filing of the writ petition, an application was taken out to implead K.G. Sankaranarayanan as fourth Respondent and was impleaded by an
order dated 10.12.2008. Private notices were ordered to the fourth Respondent on05.01.2009 and he is represented by counsel.
The second Respondent, District Elementary Educational Officer had filed a counter affidavit dated Nil (2009). Even while the writ petition
wasp ending, parties were locked up in a civil litigation before the 2nd Additional Sub-Court Tirunelveli in O.S. No. 177 of 1998, which was
decreed on 25.03.2004 and against which an appeal was filed before the Appellate Court in A.S. No. 77 of 2004. The appeal was allowed by a
judgment and decree dated 08.12.2004 and the order of the Trial Court was set aside. It was against the said judgment and decree, the original
Plaintiffs preferred the Second appeal in S.A. No. 182of 2005. Both sides agreed that the disposal of the Second Appeal will decide the destiny
of the Writ Petition.
The facts leading to the Second Appeal are as follows:
Late K. Ganesamoorthy was the Manager as well as the owner of the Ganesamoorthy Middle School in Kurichi in Palayamkottai circle. In 1995,
he transferred the management of the school in favour of K.G. Kanthakumar. He also executed two Wills, one dated17.02.1995 and the other
Will dated 28.02.1995. Subsequently, he executed a Registered Settlement Deed on 19.10.1996, settling the school buildings in favored
Kanthakumar. As per the first Will dated17.02.1995, he bequeathed the right of Management of the school and a part of the school building in
favored Kanthakumar, his first son. He also provided a dwelling house and a part of the building of the school to his second son Sankara
Narayanan. By the second Will dated 28.02.1995, he bequeathed all his properties including the school, both movable and immovable in favour of
his two sons M/s. K.G. Kanthakumar and K.G. Sankaranarayanan in equal moiety. Thereafter, he executed a registered Settlement Deed dated
19.10.1996 settling the school buildings in favour of his son Kanthakumar. In the Wills, he did not provide anything either to his wife or to his
female children. Late Ganesamoorthy had two wives. His first wife pre-deceased him and through her, he had two sons M/s. K.G. Kanthakumar
and. Sankaranarayanan and a daughter by name K.G. Alagarammal. He married one R. Krishanammal, as his second wife after the passing away
of his first wife and through her, he had four daughters M/s. Kothainayagi, Balamaheswari, Suriya Kala and Gajagowri. On the death of late
Ganesamoorthy, his second wife and children filed a suit in O.S. No. 177 of1998 on the file of Second Additional Sub Court, Tirunelveli, seeking
a declaration and permanent injunction in respect of the suit properties and also claiming 21/40 shares in the second schedule of the property. In
the suit, the Defendants were the children of the first wife i.e. K.G. Kanthakumar and. Sivasankaranarayanan and Alagarammal.
In the suit O.S. No. 177 of 1998, 11 documents were filed by the Plaintiffs and they were markedExs.A1 to A11. On the side of the
Defendants, 26documents were filed and marked as Exs.B1 to B26. On behalf of the Plaintiffs, his first wife Krishnammal was examined as P.W.1
and two other witnesses M/s. Balagurusamy and Muthukumarasamy were examined as P.W.2 and P.W.3. On the side of the Defendants, the first
Defendant, Kanthakumar examined himself as D.W.1. Apart from that, four other witnesses M/s. Abdul Ajeez, Balamurugan, Beer Mohammed
and Pandian were examined as D.W.2 to D.W.5.
The Trial Court framed the following 8issues:
i)Whether the first schedule property is a joint family property?
ii)Whether the Will dated 28.02.1995 executed by late Ganesamoorthy was legally valid?
iii)Whether in respect of the first schedule property, the Plaintiffs as well as Defendants 1 to 3are the agency of the said property?
iv) Whether it is correct that Defendants 1 to 3alone are the agencies of the first scheduled property?
v)whether the Defendants 1 to 3 and the Plaintiffs are entitled to have a right to have rotational management over the school?.
vi)In respect of the second schedule property, whether the Plaintiffs are entitled to get 21/40shares?.
vii) In respect of the first schedule property, whether it is correct to state that 4 and 5thDefendants were responsible for mismanagement?
viii) whether the Plaintiffs are entitled for any relief?
The Trial Court found that the school was started by one Kandasamy Pillai. There was no proof that he in his personal earnings started the
school and since Defendants K.G. Kanthakumar and. Sankararanarayanan were born to Ganesamoorthy, the first schedule property should be
considered as a joint family property. Thereafter, the Trial Court considered the legal effect of the Will dated28.02.1995, marked as Ex.B1. The
Trial Court found that late Ganesamoorthy executed the first Will and thereafter, without reference to that Will, he executed a second Will and
within a short period, the necessity to write the second Will was not explained. In the Will dated 28.02.1995, there was no reference to the
Management of the School and it was claimed that after 17.05.1995, since K.G. Kanthakumar, was the School Secretary and Manager as per
Ex.B6, the necessity to create subsequent document was not explained. It was found that Ganesamoorthy''s physical condition was impaired and
he was undergoing medical treatment. Subsequently, as per Ex.B21, he created a Settlement Deed registered at Parasalai (Kerala State). Even
though there was a reference to third item in the schedule, it was not visited by any one of them and therefore, the first Plaintiff cannot have any
right over the property in Door No. 44 and Door No. 43A. It also found that Ex.B21 was void document and in respect of Ex.B3 and Ex.B1, the
first Defendant in order to deny the right of others had utilised his relationship with late Ganesamoorthy and created those documents.
There was also difference in the signatures of P.W.3, Muthukumarsamy and D.W.2, Abdul Ajeez in the Will dated 28.02.1995. Even
assuming that the Settlement Deed in Ex.B21 is accepted as true wherein it was stated that two sons alone are entitled for share, it creates a doubt
on the existence of Ex.B1Will dated 28.02.1995 since it was found that Ganesamoorthy''s physical and mental condition were not proper, those
documents were created and hence in order to deny the right of Plaintiffs, the Defendants have made use of Ganesamoorthy and when his mental
condition was not good, these documents were created and therefore, Ex.B1 is not legally valid. With reference to the second schedule property,
the finding was that it was a joint family property and since its an ancestral property, the Plaintiffs are entitled for 21/40 shares. In respect of the
second schedule, first and second items are concerned, 5/8 shares will go to the Plaintiffs. With reference to the 5th issue relating to the
Management of the School, it found that the Plaintiffs are also entitled for a share in the Management of the school and therefore, the Management
must be done on a rotational basis. For the first two years, the Plaintiffs will manage the school and thereafter, for the subsequent two years, the
Defendants will manage the school and the official Respondents must implement the rotational management.
As against the judgment and decree dated25.03.2004, the Defendants filed an appeal in A.S. No. 77 of 2004 and the matter was tried by the
I Additional District Judge, Tirunelveli. The Appellate Court held that for the period from 1980 to1996, Ganesamoorthy''s Physical and mental
condition was proper and therefore, both the Wills were written by him. At the time writing of the Wills he was in good mental and condition. The
settlement deed inEx.B21 was legally valid. The Lower Appellate Court also held that in a proper mental and physical condition late
Ganesamoorthy left the properties to be shared between the two male sons and he had not provided any share for the daughter or for his wife. The
Settlement Deed came into force after the two Wills came into existence and Ganesamaoorthy was holding several posts and he had also
participated in the marriage of the Plaintiffs and the Defendants. He was working in the Civil Supplies Department and thereafter, as Headmaster
and Correspondent of the School. He had his own income and Ganesamoorthy had every right to create encumbrance in the property.
Ganesamoorthy transferred the Management of the school to his first son. The amounts for the marriage written in Ex.B19 and photo as well as
negatives of the marriage conducted for K.G. Sivasankaranarayan showed Ganesamoorthy in good condition. The judgment of the Trial Court was
not legal and therefore, the judgment of the Trial Court was set aside by a judgment and decree dated 08.12.2004.
In the second appeal filed by the original Plaintiffs, it was contended that the order of the lower appellate Court was not valid. Late
Ganesamoorthy had no right to bequeath the entire school property in favour of his first son. Exs.B1 andB3 were not proved and the
Ganesamoorthy was not in sound mental condition and the evidence of P.W.2 was not appreciated by the lower appellate Court regarding the
mental condition of Ganesamoorthy. It was also proved that Ganesamoorthy was taking treatment from1993 to 1996 which was admitted by the
first Defendant and during which period Exs.A10, A11 and Ex.B2 came into existence. Since in the second Will, there was no reference to the
previous Will and there was no reference about the school management, EX.B21Settlement Deed registered at Parasalai was not valid. Since
P.W.3 had not seen late Ganesamoorthy affixingthe signature and also spoken about the state of mind, the Will cannot be relied upon. Since no
property were allotted to the heirs of the second wife, the will was invalid.
The question of law framed by this Court at the time of admission on 01.03.2005 was whether the first appellate Court was justified in not
discussing all the issues which were discussed by the Trial Court?
Mr. Gnanagurunathan, learned Counsel appearing for the Appellants submitted that Ganesamoorthy''s first son K.G. Kanthakumar was
working as Middle School teacher and was also helping his father to run the school and therefore, he alone will run the school. He also referred to
his second son K.G. Sankaranarayanan, who was already employed in higher secondary school and gave the second schedule property to him. In
the second Will dated 28.02.1995he had very clearly stated that one son and other daughter had already died and that he had made arrangement
for getting married the daughters of his second wife. He had earned the entire property on his own personal income as he was working as Firka
Supply Officer and later worked as Headmaster of the School. With reference to the marriage of Gajagowri, he made his two sons to be
responsible to get her married and the second wife will stay with the children of the first wife for her life time and in case she does not want to live
them, and she is also entitled to live in-House No. 43 and get the family pension. The learned Counsel after taking this Court to various evidences
also placed reliance upon certain judgments of this Court and the Supreme Court in support of his contentions.
16.1. The learned Counsel for the Appellant relied upon judgment of this Court in Sadachi Ammal v. Rajathi Ammal A.I.R.1940 Mad 315 for the
purpose of contending that the registration is not a proof of testamentary capacity and the Will have to be proved before the Court. While proving
the execution of the Will, the testator''s capacity and mind also will be a relevant factor.
16.2. The learned Counsel also relied upon a judgment of the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, for
the purpose of contending that the proof of the signature of the deceased will show that he is presumed to have known the provisions of the
instrument he had signed. But the said presumption is liable to be rebutted by proof of suspicious circumstances.
16.3. Thereafter, reliance was placed upon the judgment of the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra
Narayan Dev and Another, , wherein the Court found that thepropounder of the Will getting sole benefit subject to the maintenance of the
testator''s wife and sister and he himself taking part in the execution of the Will and with the signature of the testator not appearing to be his usual
signature through suspicion and in such circumstances, the fact of registration cannot be a sufficient proof. It is for the propounder to dispel the
suspicious circumstances.
16.4. The learned Counsel also relied upon the judgment of this Court in S. Ramamurthy v. Jayalakshmiammal 1991 1.L.W. 391 wherein, this
Court held that execution of a document is not mere signing of it.
16.5. The learned Counsel further placed reliance upon the judgment of this Court in Dharman and Others Vs. Marimuthu, ,wherein this Court held
that in undue influence and unnatural and unconscionable disposition of the entire properties by gift to person having dominating position the initial
burden is discharged by proving dominating position. The Court can also go into the health condition of the donor and total exclusion of daughters
and minor children of the donor without mentioning any reason or misunderstanding can be held to be a suspicious circumstances.
16.6. The learned Counsel also placed reliance upon the judgment of this Court in T. Kanniah Rao Vs. Inder Rao, to the effect that onus of proof
is on the propounder to explain the suspicious circumstances by adducing unimpeachable evidence regarding genuineness and authenticity of Will.
16.7. The learned Counsel further placed reliance upon a judgment of this Court in Rajammal and 3 others Vs. Ramasami and 3 others, ,wherein
this Court held that the burden of proof is open to the propounder of the Will to prove the doubts in execution of the Will. For the very same
purpose, the judgment of the Supreme Court in Gurdial Kaur and others Vs. Kartar Kaur and Others, was relied upon and in that case, it was
found if some of the natural heirs are disinherited in the Will without any reason, the genuineness can be doubted.
16.8. The learned Counsel further relied upon judgment of this Court in Sivasamy, Manickkam and Karuppian Vs. Poomalai, Lakshmi and
Thirupathi, once again for the very same purpose for contending that it is for the propounder of the Will to remove grounds of suspicion.
16.9. The learned Counsel also placed reliance upon the judgment of the Supreme Court in K. Laxmanan v. Thekkayil Padmini and Ors. 2009) 4
MLJ 681 (SC and Bharpur Singh and Ors. v. Shamsher Singh (2009) 5 MLJ 1605 (SC) to reiterate the same contentions.
16.10. He also relied upon the judgment of this Court in P.R. Vijayarangam v. P.R. Ramanujam 2009 (3)CTC 503 to contend that if the testator
had a falling health profile and the propounder playing predominant role will contribute serious doubts about the execution of the Will.
16.11 Lastly, he relied upon a Division Bench judgment of this Court in Premavathi and Ors. v. Sundararajan and Ors. 2009 (3) CTC 801 for
contending that propounder should remove all suspicious circumstances and must prove the Will.
Therefore, he contended that executing two wills within a short time and excluding the heirs of the second wife from any inheritance and
registering a Settlement in a far away place in Kerala as well as the medical evidence produced will show he was under treatment and that the late
Ganesamoorthy never had a disposing state of mind. He also contended that the Trial Court had appreciated all the evidence and found the
documents in Exs.B1 and B3 were not valid andEx.B21 was unreliable.
Mr. T.R. Rajagopal, learned Senior Counsel after taking this Court to the evidence adduced before the Trial Court contended that the Doctor
who was examined as P.W.2., Balagurusamy in his cross-examination had stated that Ganesamoorthy came to him during 1993 and thereafter in
1996. He was not aware of the post held by him during the said period. He could not deny that he was receiving pension and was not aware of his
signature. During the relevant period, he was instrumental in performing marriage forgone son and one daughter and was receiving guests during the
marriage ceremony as could be seen from the video picture. Even in his chief examination, he had stated that on 01.01.1993, 02.10.1993 and
23.11.1993,he was only taking treatment as an outpatient and evenin October 1996 he was only treated as out patient. Therefore, mental state of
mind of a person cannot be proved by this scanty evidence of P.W.1 who was only working as part time in the hospital and who had seen him
occasionally and also did not produce any medical records about the treatment.
On the other hand, during the relevant period, the late Ganesamoorthy was in good physical Sundararajan and Ors. (2009 (3) CTC 801) for
contending that propounder should remove all suspicious circumstances and must prove the Will. condition and was also holding the post of
School Correspondent. The fact he chose the first son to run the school was that he was already a teacher in the School and was helping him in the
Management of the school. It is not as if he did not take care of the other children. In the second Will, he had made adescription of all the other
children, which will clearly show his disposition of mind. The Will was proved in the manner known to law which fact was found accepted by the
lower appellate court. He also submitted that Ex.B5 was a legal notice sent by Plaintiffs 4 and 5. Thereafter, the said Ganesamoorthy had
functioned in the school and the other documents like sending form for Urban land taxEx.B11. Ex.B13 series were 7 post cards written by
Ganesamoorthy in his own handwriting. The only bookmaintained by Ganesamoorthy is Ex.B18 and the marriage account for the second Plaintiff in
Ex.B19 clearly showed that he was having a good physical state of mind. The photos and negatives found in Ex.B20 series will show that
Ganesamoorthy was receiving guests in the marriage function. These facts were simply ignored by the Trial Court but were found to be valid
documents in assessing the mental and physical health of Ganesamoorthy and further it is not as if the lower appellate court did not appreciate the
evidence on record. On the other hand, it did not discuss all the material facts and came to the conclusion.
In the second appeal, only when there was a question of law involved the findings recorded by the lower appellate court can be interfered with.
Evidence recorded clearly shows that Exs.B1 and B3 as well asEx.B21 cannot be held to be invalid documents or mutually contradictory
documents. Since Ganesamoorthy''s first son was already in the school and helping his father to manage the school, it isnatural that the father had
given an opportunity to him to continue the administration of the school. His second son was already employed in some other school and therefore
he gave exclusive right to his first son. In the second Will, he had also mentioned about the other daughters of his second wife as well as the
children of his first wife and made reference to each one of them and expressed clearly that he had not provided anything for them. Therefore, it is
not as if the testator was not aware of the other children or their standing in the Society. Even about his own second wife, he had given her right of
residence and the family pension to take care of herself. About the last daughter of the second wife, he had mandated both the sons to be
responsible for getting her married. Therefore, it cannot be said that the Will came into existence in suspicious circumstances that it should be
discarded by the Court at the instance of the Plaintiffs. The propounder of the Will had discharged their obligation in proving the Will and the minor
discrepancies cannot invalidate the existence of those documents. The findings recorded by the lower appellate Court do no call for any
interference.
Under the circumstances, this Court has no hesitation in dismissing the second appeal in S.A. No. 182 of 2005 and confirming the judgment
and decree of the lower appellate court in A.S. No. 77 of2004 on the file of the first additional District Court, Tirunelveli dated 08.12.2004.
However, the parties are allowed to bear their own costs.
In view of the dismissal of the second appeal, the writ petition filed by the Petitioner will have to be allowed and the impugned order stands set
aside. As far as the management of the School is concerned, the right to manage the school will devolve upon the legal heirs of K.G. Kanthakumar
as per the judgment and decree passed by the lower appellate court in A.s. No. 77 of 2004 dated 08.12.2004. No costs. Consequently,
connected miscellaneous petitions are closed.