Muthuvenkatarama Iyengar vs Seethalakshmi Ammal and Another

S.S. Subramani, J.—The first defendant in O.S. 1203 of 1979 on the file of District Munsif, Tirumangalam is the appellant. The suit is filed

by the first respondent herein-plaintiff for declaration and possession with mesne profits. She claims to be the widow of one Venkatarama Iyengar

who died on 28.2.1965. The plaint Schedule properties were acquired in the name of his mother Gomathi who died on 11.6.1978. The case of the

plaintiff is that the property is acquired in the name of Gomathi, the mother-in-law of the plaintiff, with the funds of her husband and, therefore, as a

legal heir of her husband, she is entitled to a declaration and recovery of possession of the suit property. The first defendant is the brother''s son of

plaintiffs mother-in-law Smt. Gomathi Ammal. The first defendant claimed right over the property in question on the basis of a Will alleged to have

been executed by her mother-in-law. He also continues to be in possession of the suit properties. The second defendant-Bank is a custodian of the

assets and in that capacity alone it has been impleaded as party second defendant.

The trial Court after taking into account the evidence in the case, came to the conclusion that the properties were acquired by Venkatarama

Iyengar in the name of his mother, Gomathy and, therefore, the plaintiff is entitled to succeed. The first defendant preferred an appeal against the

said Judgment in A.S. No. 20 of 1982 and the lower appellate authority disagreed with the trial Court on its conclusion regarding benami nature

but dismissed the appeal on the ground that the plaintiff is the legal heir under the Hindu Succession Act and the decree was sustained for different

reasons. The lower appellate Court has held that the Will alleged to have been executed by Gomathi is a forged one and is not executed by her.

That is the finding of the fact. It is against that decision, the Second Appeal is filed before this Court.

The following substantial questions of law have been raised at the time of admission of this Second Appeal.

When the Will is attacked as a forgery, is not the Court bound to compare the signatures in the Will with that of other documents before

rejecting the Will, and can the Will be said to be forgery even without such comparison.

Is not the Lower Appellate Court, as a Court of fact, bound to consider the oral evidence of the witnesses regarding execution or otherwise of

the Will and whether the lower Appellate Court can ignore, overlook or brush aside their evidence even without adverting to the same.

When admittedly there is no love lost between the parties, can the Will be rejected merely on the ground that no provision has been made to the

other.

Is the lower Appellate Court correct in decreeing the suit on a ground which did not form the basis of the claim, and

Is not a prayer for declaration essential when title is disputed and whether the suit is maintainable without such a prayer.

With regard to the genuineness of Will alleged to have been executed by Gomathi Ammal in favour of the first defendant, the Court below has

rightly concluded and, therefore I do not think it is proper for this Court to re appreciate the entire evidence and come to a conclusion. Hence, the

substantial question of law No.1 is answered against the appellant.

Question of law No.2 also deals with the appreciation of the evidence regarding the finding on the Will. I have already answered the same and

hence, it also does not deserve any further clarification and in view of the finding this question is answered against the appellant.

Question No. 3 also depends upon the validity of the Will and the same also is answered supra.

Questions 4 and 5 have to be decided.

The trial Court came to the conclusion that the properties are acquired by Venkatarama Iyenger in the name of his mother Gomathy and,

therefore, the plaintiff is entitled to right over the property. The said finding was set aside by the lower Appellate Court holding that the benami

nature of the transaction is not substantiated by the plaintiffs. According to me the said finding of the lower Appellate Court is correct. To prove

the benami nature, the intention to purchase the properties in acquiring in the name of others is most important. The only reason that is mentioned in

the plaint is that since the plaintiff''s husband was employed elsewhere he acquired the property in the name of his mother. According to me it is a

feeble ground and nothing prevented Venkatarama Iyenger to acquire the property in his own name and entrust the property to his mother for her

convenient enjoyment. We find that subsequent to the purchase the tax assessment also stood in the name of his mother and title deeds also were

in her custody. It is also seen that subsequent to Gomathi Ammal''s death, the first defendant has come into possession of those documents.

Regarding the factum of consideration also, the evidence is feeble. Even though Venkatarama Iyengar had funds we find certain deposits have

been made and the acquisitions are not immediately after the amount was withdrawn from such deposits. If that be so, it cannot be held that the

property was purchased from the amounts withdrawn by Venkatarama Jyengar. The source of income, if any, of Gomathy is also not found in the

evidence. In the above circumstances, the finding of the lower appellate Court that the benami nature of acquisition pleaded by the plaintiff is not

proved has to be confirmed. If Gomathy Ammal is the owner of the property, the question arises as to whether the plaintiff is entitled to the relief

sought for.

The lower Appellate Court simply held that on the death of Gomathy Ammal, her daughter-in-law as her legal heir is entitled to the property.

According to Section 15 of the Hindu Succession Act, the widow of the predeceased son is not a legal heir. Learned counsel for the first

respondent submitted that u/s 8 of the Hindu Succession Act, plaintiff can be a legal heir of Seshan who is the husband of Gomathy. The said

submission also cannot be correct. The status of the plaintiff is not with that of a widow of predeceased son of Seshan. Admittedly, Seshan died in

the year 1940 and Venkataraman died only in the year 1965. So she cannot be treated as the widow of the predeceased son. In other words the

plaintiff cannot be the legal heir of Gomathi or Seshan who is her husband. Schedule items include the amount to be recovered from the Bank. A

decree could not be granted when the claim of the plaintiff is as legal heir of Gomathy, without production of Succession Certificate. In either way

the plaintiff is not entitled to a decree as sought for. Since the locus standi of plaintiff to file the suit is found against, the suit is only to be dismissed

and I do so. The Second Appeal allowed and the decisions; of the Courts below are set aside and the suit is dismissed. But taking into

consideration the close relationship between the parties, I direct them to suffer their costs. Consequently C.M.P. 16377/82 also is dismissed.