Pattammal and Another vs Palaniswamy Chettiar

Ratnam, J.—The plaintiffs in O.S. No. 281 of 1978, District Munsif''s Court, Mayuram are the appellants in this second appeal. That suit

was paid by the appellants for recovery of possession of a portion measuring 1708 sq. ft. in door No. 10, Velalarkoil East Street, Mayuram Town

and damages for use and occupation from December, 1977 till the date of delivery of possession together with the value of the trees cut and bricks

removed by the respondent in a sum of Rs. 685.

The circumstances, under which the suit was instituted are as follows: One Narayana Chettiar had two sons, Kanakasubai and Sambasiva.

Kanakasubai''s wife was one Anjalai, and they had a son Rajagopala Chettiar, who died on 16.3.1944, leaving behind him his two widows,

Pattammal and Rajammal, the appellants herein. Muthiah was the son of Sambasiva and his son was one Kalyanasundaram Chettiar. The

respondent is the son of Kalyanasundaram Chettiar. The suit property belonged to Rajagopala Chettiar, the husband of the appellants. The

appellants, along with their mother-in-law, Anjalai Ammal, filed O.S.No. 46 of 1944, Sub Court, Mayuram, against Kalyanasundaram Chettiar

and others for partition and separate possession of their half share in the properties detailed in schedules ''A'' to ''A-5'' in that suit and for recovery

of possession of the movables in Schedules ''B'' and ''B-l'' Door No. 10 in Velalar East Street was item 7 in A schedule in that suit.

Kalyanasundaram Chettiar also instituted another suit in O.S. No. 4 of 1945, Sub Court, Mayuram, against the appellants and their mother-in-law,

Anjalai Ammal and others prayed for partition and separate possession of the properties in that suit and praying for the allotment of 8 mans each to

the appellants and their mother-in-law Anjalai Ammal and the rest to Kalyanasundaram Chettiar. Both the suits were tried together and the suit

instituted by Kalyanasundaram Chettiar was dismissed, while a preliminary decree for partition was granted in favour of the appellants and their

mother-in-law Anjalai Ammal on 5.9.1945. In the course of the final decree proceedings in O.S. No. 46 of 1944, Sub Court, Mayuram, a

Commissioner was appointed and under the final decree, the appellants and their mother-in-law Anjalai Ammal together were allotted the house

bearing door No. 10 while, Kalyanasundaram Chettiar, father of the respondent, was allotted door No. 9. Subsequently, the appellants and

Anjalai Ammal took delivery of possession of the properties allotted to them and a partition was entered into on 6,8.1947 between the appellants

and Anjalai Ammal in respect of the lands; but door No. 10 was however not divided. According to the case of the appellants, they and Anjalai

Ammal were living in door No. 10, and Anjalai Ammal died and as her heirs, the appellants became entitled to the share of Anjalai as well. Some

time in Aavani, 1968, door No. 9, where the respondent was living, fell down and he sought permission from the appellants to reside in the suit

property forming a portion of door No. 10, and he was orally permitted to occupy the suit property. Subsequently, the respondent developed a

hostile attitude towards the appellants and attempted to claim ownership over the suit property and thereupon, the appellants demanded vacant

possession of the suit property from the respondent; but he did not agree to it. In 1977, the portion of the house permitted to be occupied by the

respondent, fell down and the respondent high-handedly took away bricks worth Rs. 650 and also cut some trees. The portion in the occupation

of the respondent, according to the appellants, is capable of fetching a monthly rent of Rs. 35 if let out. The appellants demanded the respondent to

vacate the house and also claimed the value of the bricks as well as damages for use and occupation by issue of a notice dated 22.2.1978 and as

the respondent sent a reply containing false allegations, the appellants, after sending a rejoinder instituted the suit praying for the reliefs set out

earlier.

In the written statement filed by the respondent, he set up a will dated 7.8.1947 stated to have been executed by Anjalai Ammal, while in a

sound disposing state of mind, under which she had bequeathed all her properties in his favour and under the will, he became entitled to a half

share in the house bearing door No. 10. The further case of the respondent was that his father, Kalyanasundaram Chettiar moved into the house

even in 1952 and after living therefore about 8 years, left to reside separately and the respondent, who had been living with the father, continued to

reside even after Kalyanasundaram Chettiar left that house and thus, from 1952 onwards, the respondent had been in continuous, open and

uninterrupted possession and enjoyment of the suit property, to the knowledge of the appellants and others and had thus prescribed title to the suit

property. The oral permission stated to have been given by the appellants to the respondent for occupying the suit property was denied. While

admitting that a portion of the suit house fell down in the cyclone in November, 1977, the respondent claimed that he had used the bricks for

reconstructing the fallen portion and he denied the removal of bricks. The claim for damages for use and occupation at the rate of Rs. 35 p.m. was

characterised to be excessive. The respondent also denied having cut and removed the trees.

Before the trial Court, on behalf of the appellants, Exs. A-1 to A-10 were marked and the 1st appellant and another were examined as P.Ws. 1

and 2, while, on behalf of the respondent, Exs. B-1 to B-19 were filed and the respondent gave evidence as D.W. 1, On a consideration of the

oral as well as documentary evidence, the trial Court found that Anjalai Ammal had executed a Will on 7.8.1947 in favour of the respondent herein

and that will is true, valid and binding on the appellants, that though the will did not specifically bequeath the suit property in favour of the

respondent herein, he would nevertheless be entitled to the suit property as a residuary legatee under the will, that the respondent has not

prescribed title to the suit property by adverse possession, that the respondent did not remove the bricks or cut the trees and therefore, the

appellants are not entitled to recover possession of the suit property or claim damages for use and occupation or even the value of the bricks and

trees. On the aforesaid conclusions, the suit was dismissed. Aggrieved by this, the appellants preferred A.S. No. 94 of 1979, before the Sub

Court, Mayuram. The learned Subordinate Judge, Mayuram, concurred with the conclusions of the trial Court that Anjalai Ammal executed a will

in favour of the respondent on 7.4.1947 and under its terms, the respondent would be the residuary legatee of the suit property, that the

respondent had not prescribed title to the suit property by adverse possession and therefore, the appellants are not entitled to any of their reliefs

prayed for in the suit and dismissed the appeal. It is the correctness of this that is questioned by the appellants in this second appeal.

During the pendency of the second appeal the 2nd appellant died. A memo dated 28.3.1988 was filed to record the 1st appellant as the legal

representative of the deceased 2nd respondent for the limited purposes of the further prosecution of this second appeal. Since there was no

objection to this, the 1st appellant is recorded as the legal representative of the deceased 2nd respondent for the purposes of the further

prosecution of this second appeal.

Learned Counsel for the appellant contended that there is no proof of the will dated 7.8.1947 stated to have been executed by Anjalai Ammal

in favour of the respondent herein and therefore, the respondent cannot claim any interest in the suit property on the basis of Anjalai Ammal''s Will,

Referring to the evidence of the 1st appellant examined as P.W. 1, which had been construed to be an admission on her part regarding the

execution of the will by Anjalai on 7.8.1947 in favour of the respondent herein, the learned Counsel pointed out that P.W. 1 was examined on

10.3.1979, while, the will of Anjalai dated 7.8.1947 was marked in evidence as Ex. B-19 only on 3.4.1979 and P.W. l''s evidence cannot

therefore have any reference whatever to Ex. B-19 the will of Anjalai, and in the absence of proof of that will by the examination of attestors, the

respondent could not claim any right thereunder.

On the other hand, learned Counsel for the respondent submitted drawing attention to the evidence of P.W. 1 that she had admitted the will

executed by Anjalai Ammal in favour of the respondent and had also stated that she had no objection whatever to the respondent enjoying the

property belonging to Anjalai and under those circumstances, it was not necessary to prove the will when it had been admitted by P.W. 1.

Normally, the will of Anjalai marked as Ex. B-19 dated 7.8.1947, under which the respondent claims title to the suit property, should have been

proved in a manner known to law. u/s 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act, the due execution and

attestation of a will should be established by examining at least one of the two attestors. Admittedly, in this case, no attesting witness has been

examined. The non-examination of even one of the attestors, in proof of the will, is sought to be justified on the ground that the 1st appellant had

admitted the execution of the will by her mother-in-law Anjalai Ammal in favour of the respondent herein under Ex. B-19. It is in this connection, it

has to be noted that P.W. 1 was examined on 10.3.1979 and the will dated 7.8.1947 was marked as Ex. B-19 in evidence only on 3.4.1979. It is

obvious therefore, that Ex. B-19 could not have been put to P.W. 1 when she was examined and the execution and attestation of the will admitted

by P.W. 1 in the course of her evidence. The evidence of P.W. 1 to the effect that her mother-in-law executed a will in favour of the respondent

and that she had no objection to the respondent enjoying those properties, cannot therefore be stated to have reference to the will Ex. B-19, which

was marked in evidence only long subsequently. There is also nothing to indicate that at the time when P.W. 1 gave evidence, Ex. B-19 had been

put to her. At best, the evidence of P.W. 1 can be taken to refer to the execution of a Will by Anjalai Ammal in favour of the respondent and no

more. Whether that will was validly attested in a manner contemplated by law, has not been spoken to by P.W. 1. Even on the footing that P.W. 1

had admitted that Anjalai had executed a will in favour of the respondent herein, when the respondent claims rights over the properties based on

the will, it is incumbent upon him to show that the will was also duly attested in a manner contemplated u/s 63(c) of the Indian Succession Act. In

the absence of proof of attestation of the will in the manner contemplated u/s 63(c) of the Indian Succession Act, the respondent cannot claim any

rights thereunder. It is not in dispute that the respondent is not a legal heir either to Rajagopala Chettiar or to Anjalai Ammal; but he claims only as

a legatee under the will of Anjalai Ammal and therefore, before the respondent can claim any right in the suit property on the strength of the will of

Anjalai Ammal, he must prove the execution of the will by Anjalai Ammal as well as its due attestation in accordance with Section 63(c) of the

Indian Succession Act. The evidence of P.W. 1 can at best be treated as relating to the execution of the will by Anjalai Ammal, but that would not

enable the respondent to dispense with the proof or attestation of the will, especially when P.W. 1 has not whispered anything about the due

attestation of the will. There is no dispute that the attestors are available; but not even one has been examined. In the absence of examination of at

least one of the available attestors, the attestation of the will as contemplated u/s 63(c) of the Indian Succession Act, cannot be stated to have been

established. Therefore, the will of Anjalai Ammal cannot be stated to have been proved in accordance with the requirements of Section 63(c) of

the Indian Succession Act read with Section 68 of the Indian Evidence Act. It follows that in the absence of proof of the due attestation of the will

no rights could be claimed thereunder by the respondent. The Courts below were therefore in error in holding that the will Ex. B-19 dated

7.8.1947 has been proved and established by the respondent.

Learned Counsel for the appellant next contended that even on the footing that the respondent had proved the due execution as well as the

attestation of the will Ex. B-19 dated 7.8.1947, the respondent is not entitled to the suit property under its terms, as there is no bequest in favour

of the respondent with reference to the suit property. In other words, he would contend that as the will does not purport to give the suit property to

the respondent under its terms, he cannot claim any right or interest therein. Per contra, learned Counsel for the respondent submitted that the

recital in the will, viz, would be wide enough to take all the properties of the testatrix, inclusive of the properties not specifically dealt with and

disposed of under the will and would operate as a residuary device in favour of the respondent enabling the respondent to claim title even as

regards the suit property, though the suit property as such had not been specifically referred to in the will.

It is common ground that the suit property is not included in the will Ex. B-19 dated 7.8.1947. The Courts below on a construction of the

terms of the will, concluded that the intention of the testatrix was to bequeath to the respondent all her properties, irrespective of whether those

properties had been mentioned in the will or not, and in that sense, with reference to the properties undisposed of by the Will, the respondent

would constitute a residuary legatee. In construing the provisions of a Will, the Court must refer to the Will as a whole to ascertain the intention of

the testator and when considering a general residuary clause in a Will, the Court must give meaning to the other provisions in the Will u/s 102 of the

Indian Succession Act, a residuary legatee may be constituted by any words that would show intention on the part of the testator that the person

designated shall take the surplus or residue of his properties. No particular words are necessary to constitute a residuary legacy; but from the

words actually employed, an intention on the part of the testator that the surplus of his estate shall be taken by the person therein designated,

should be clearly brought out. However expressed the effect of the words employed must be that it is intended to comprise all that is not disposed

of by the Will. While ascertaining the intention of testator, the Court should construe the Will not according to what the testator, may have

intended, but, according to the true meaning of the words actually used. In Ex.B-19, the testatrix after referring to the relationship between her and

the respondent and directing him to perform her funeral obsequies, has employed the expression.

A list of properties, mostly lands, is appended to the Will. A reading of the Will as a whole, shows that the testatrix intended that the respondent

should take the properties detailed in the schedule, all of which belonged to her. There is not the slightest indication that the testatrix intended that

the respondent shall take the surplus or residue or other undisposed of properties. Apart from this, the two clauses referred to above, show that

the testatrix considered herself to be the owner of all the properties detailed in the schedule and had disposed of those properties in favour of the

respondent without in any manner referring to any undisposed of property or residue. This Prima Facie indicates that what was contemplated by

the testatrix was only a specific legacy in favour of the respondent with reference to the property detailed in the Will and not a residuary legacy of

any kind. The Court below have omitted to take into account the latter clause occurring in the Will and referred to earlier, but have construed the

expression as referring to the residue or undisposed of property. In doing so, they had failed to give effect to the latter clause in the Will specifying

the properties to be taken by the respondent under the terms of the will and the testatrix had referred only to those properties as comprised in the

whole of her estate. The use of the expression ''all my property'' does not enlarge meaning of the word ''property'', but has reference to the

quantum of property, but has reference to the quantum of property, which it was intended to cover and which had been detailed in the schedule

appended to the Will. There is no indication in the recitals of the Will that the testatrix contemplated the disposal of any residue as such and there

are no words whatever to that effect, and the words actually employed can have relation only to the quantum of property left as a specific legacy in

favour of the respondent. There is also no indication in the words employed in the Will to enlarge the meaning of the word ''property'' as to include

undisposed of property and consequently, the legacy under Ex. B-19 can at best be construed to be a specific legacy in favour of the respondent

only as regards the property described therein and no more. In other words, under the terms of Ex. B-19, there is no provision for a residuary

legacy in favour of the respondent and he cannot claim any right or interest in the suit property, which had not been disposed of under the Will Ex.

B-19 by Anjalai. There would therefore be an intestacy with reference to the properties of Anjalai Ammal not disposed of under her will Ex, B-19

and inasmuch as it has already been noticed that the respondent is not a heir either to Rajagopala Chettiar or to Anjalai, and it had already been

noticed that the respondent is not a heir either to Rajagopala Chettiar or to Anjalai, and it had also been found that he had not acquire title by

prescription and that had not been challenged before this Court, he cannot claim any interest otherwise than the Will Ex. B-19, and since under its

terms there is a specific legacy in favour of the respondent only with reference to the properties set out thereunder, he cannot claim any interest in

the suit property as a residuary legatee. The Courts below were therefore in error in holding that as a residuary legatee, the respondent would be

entitled to the suit property.

In so far as the claim of the appellant for the value of the bricks removed and trees cut is concerned, it is seen from para-14 of the Judgment of

the lower appellate Court that the counsel for the appellant did not advance any argument and that he did not press those matters. The appellant

cannot therefore seek to recover either the value of the trees cut or the bricks removed. However, in so far as the relief of damages for use and

occupation is concerned, the appellant has claimed Rs. 35 p.m. from December, 1977 onwards till the date of recovery of possession. Now that it

has been held that under the terms of the Will Ex. B-19, dated 7.8.1947, the respondent cannot claim any interest in the suit property as a

residuary legatee, it follows that the appellant is entitled to recover damages for use and occupation at the rate of Rs. 35 p.m. as claimed, from

December, 1977 onwards till the date of delivery of possession, since the quantum of damages has not been disputed. Consequently, the second

appeal is allowed, the decrees and judgments of the Courts below are set aside and there will be a decree for recovery of possession of the suit

property and for recovery of damages for use and occupation at the rate of Rs. 35 p.m. from December, 1977 till the date of delivery of

possession, with costs throughout.