P.G. Gopal vs V. Manickavelu (died) and Others

E. Padmanabhan, J.—The above Second Appeal has been preferred by the defendant in O.S. No: 6586 of 1989 on the file of the IV

Assistant Judge, City Civil Court, Madras challenging the judgement and decree dated 22.1.1991 made in O.S. No. 6586 of 1989 on the file of

the IV Assistant Judge, City Civil Court, Madras as confirmed by the judgement and decree dated 27.11.1991 made in A.S. No. 252 of 1991 on

the file of the Additional Judge, City Civil Court, Madras.

Pending the appeal, the sole respondent-plaintiff passed away and respondents 2 to 7 were brought on record as his legal representatives by

order dated 19.8.2002 made in CMP. No. 6125 to 6127 of 2001.

Heard Mr. A. Palaniappan, for Mr. M. Devendran, for the appellant and Mr. J.R.K. Bhavanantham, learned counsel appearing for the

respondent. The parties will be referred as arrayed before the trial court for convenience.

The deceased first respondent instituted the suit O.S. No. 6586 of 1989 for declaration of title and permanent injunction besides other

consequential reliefs. After contest the learned trial court on consideration of the oral and documentary evidence let in by either side decreed the

suit granting the relief of declaration of title as well as relief of injunction and other consequential reliefs. The defendant being aggrieved by the said

judgement and decree of the trial court dated 22.1.1991. preferred A.S. No. 252 of 1991 on the file of the I Additional City Civil Judge, Madras.

The first appellate court after consideration of oral and documentary evidence dismissed the appeal by its judgement and decree dated

27.11.1991. Being aggrieved, the present second appeal has been preferred by the defendant in the suit.

At the time of admission, the following substantial questions of law were framed:-

(i) Whether the courts below are right in the view they took that Ex.A.1 dated 18.11.19868 executed by Lakshmi Ammal in favour of the plaintiff

is true and valid?

(ii) Whether the courts below were right in their conclusions that despite the grant of probate of the ill dated 11.6.1984 in O.P. No. 474 of 1986, it

will be null and void and also not binding on the plaintiff?

It is essential to refer to the facts briefly. The suit came to be presented on 5.7.1989. According to the plaintiff the suit property originally

belonged to Alamelu Ammal from whom late Lakshmi Ammal purchased the same with her separate funds on 29.6.1935 in and by a registered

document of sale. The said Lakshmi Ammal constructed a house and was in possession and enjoyment of the same. The said Laksmi Ammal while

in sound disposing state of mind on her own on 18.11.1968 executed a deed of settlement settling the suit property and handed over possession of

the B Schedule property to the plaintiff. According to the settlement deed the said Lakshmi Ammal has to enjoy the property during her life time

and vested reminder to go to the plaintiff. On 6.5.1983 the said Lakshmi Ammal passed away. After the death of Lakshmi Ammal there has been

mutuation of patta and taxation in favour of the plaintiff and he is in possession of the same. It was claimed that the first defendant''s father-in-law

Munusamy Mudaliar executed a Will on 11.2.1974 and the defendant claimed the same under the pretext of a Will. The said Munusamy Mudaliar

is the brother of Duraisamy Mudaliar, who married the said Lakshmi Ammal. The said Will is not genuine. Munusamy mudaliar passed away on

20.9.1984. The defendant has probated the Will executed by Munusamy Mudaliar by instituting O.P. No. 474 of 1986. The said Will of

Munusamymudaliar is a brought up document and for more than 60 years there was no relationship between Duraisamy Mudaliar and Munusamy

Mudaliar and at any rate Mnusamy Mudaliar has no right at all over the property and he cannot execute a Will. The application moved by the

plaintiff on the original side of this court was disposed of with a direction that the plaintiff has to seek appropriate relief before the competent court.

The said Will is not binding on the plaintiff and hence the present suit.

The respondent defendant filed a written statement pleading that Duraisamy Mudaliar and Munusamy Mudaliar were members of the undivided

Hindu joint family, that Duraisamy Mudaliar has no issues, but Munusamy Mudaliar has seven sons, that out of the seven two of them passed away

and five of them are alive, that Munusamy Mudaliar has given his savings to the Manager Duraisamy Mudaliar, that Duraisamy Mudaliar from the

joint family income purchased the suit property in the name of his wife Lakshmi Ammal for the benefit of the joint family, that with the funds of the

joint family the roof of the building was covered, that Lakshmi Ammal has no source or income to purchase, that after the death of Duraisamy

Mudalirar in the year 1962 Munusamy Mudaliar and Lakshmi Ammal were jointly enjoying the suit property, that Lakshmi Ammal died on

6.5.1983, that the plaintiff is the sister''s son of the said Lakshmi Ammal, that the plaintiff prevented the defendant from paying rent through

Munusamy Mudaliar, that Munusamy Mudaliar caused a notice through his Advocate to the plaintiff on 7.5.1983, that on 19.5.1983, the plaintiff

sent a reply containing false averments besides disclosing the settlement deed dated 18.11.1968, that the settlement deed is not a true document,

that the settlement deed will not confer any right or title, that the settlement deed is a fabricated and brought up document, that Lakshmi Ammal

executed the alleged will under vitiating circumstances of threat, coercion and against her will, that Munusamy Mudaliar filed O.P. No. 89 of 1984,

pending the said O.P., Munusamy Mudaliar died, that the present defendant substituted himself in the place of Munusamy Mudaliar, that the

defendant applied for probate to the High Court and probate was granted in his favour, that the property was transferred in the defendants name,

that application to set aside the probate/letters of administration moved by the plaintiff was dismissed, that in terms of the Probate already granted

the defendant is entitled to the suit property exclusively and that the suit is liable to be dismissed.

On the said pleadings the trial court framed the following six issues:

(i) Whether the plaintiff is entitled to the relief of declaration prayed or?

(ii) Whether the plaintiff is entitled to the relief of injunction?

(iii )Whether the defendant has prescribed title by adverse possession?

(iv) Whether the suit is barred by res judicata?

(v) Whether the suit is maintainable?

(vi) To what relief if any the plaintiff is entitled to?

The plaintiff examined three witnesses and marked Exs.A.1 to A.28 while the defendant examined two witnesses and marked Exs.B.1 to B.24.

After a detailed consideration of oral and documentary evidence the trial court recorded a finding that the settlement deed executed by Lakshmi

Ammal father of the plaintiff is true, that the defendant has not acquired any right in the suit property and consequently granted the relief of

declaration as well as injunction as prayed for. The trial court decreed the suit with cost.

The defendant preferred he first appeal and the first appellate court framed the following points for consideration:-

(i) Whether Lakshmi Ammal purchased the suit property under sale deed dated 29.6.1935 for the benefit of the joint family members consisting of

Duraisamy Mudaliar, his brother Munusamy Mudaliar and whether the suit property belong to Lakshmi Ammal or the joint family of Duraisamy

Mudaliar and Munusamy Mudaliar?

(ii) Whether the settlement deed dated 18.11.1958 was obtained by fraud, undue influence and coercion by the plaintiff from Lakshmi Ammal as

alleged in paras 18 and 28 of the written statement?

(iii) Whether the Will dated 11.6.1984 executed by Munusamy Mudaliar in favour of the defendant is binding on the plaintiff?

(iv) To what relief if any the appellant is entitled to?

All the points were answered against the the defendant appellant and the first appellate court while deciding all the four points in favour of the

plaintiff, dismissed the appeal and confirmed the judgment and decree of the trial court by its judgment dated 27th November 1999.

Mr. Palaniappan, learned counsel appearing for the appellant challenged the findings recorded by the two courts below, despite the fact that

the findings being concurrent and the two courts have considered the evidence in its entirety and findings recorded being balanced. The two

substantial questions of law framed at the time of admission was pressed apart from contending that there are clinching materials which would

militate against the respondent-plaintiff. Mr. Palaniappan, learned counsel took the court through the pleadings, oral and documentary evidence as

well and made his submissions.

The following points arise for consideration in this appeal:-

(i) Whether Lakshmi Ammal was the owner of the property or whether she is a name lender holding the property for the benefit of the alleged joint

family?

(ii) Whether the acquisition of property by Lakshmi Ammal is for the benefit of the joint family? and whether she was holding the property benami

for the members of the joint family?

(iii)Whether the settlement deed Ex.A.1 dated 18.11.1968 is true, valid and confer valid title on the plaintiff?

(iv) Whether the grant of Probate of the alleged Will dated 11.6.1984 in O.P.NO:474 of 1986 by the testator confers any right on the defendant

and takes away the plaintiff''s title and interest?

(v) Whether any right has accrued to the testator of the Will dated 11.6.1984 and whether he could bequeath the suit property in favour of the

defendant?

(vi) To what relief if any?

It has to be pointed out here and now that the plea of benami has not been raised specifically nor any issue has been framed by the two courts

below in this respect. It is also to be pointed out that neither there is a specific pleading nor there is an issue with respect to this material point

before the two courts below and the appellant/defendant seeks to raise a new contention at the stage of second appeal. Sitting in Second Appeal,

this court will not be justified in permitting the appellant to raise a new pleas for the first time in the second appeal and such a new plea cannot be

raised for the first time in this second appeal.

Taking up the first two points namely Whether Lakshmi Ammal was the owner of the property or whether she is a name lender holding the

property for the benefit of the alleged joint family?, here and now it has to be pointed out that there is no specific plea in this respect. But a vague

plea has been set out and on that basis the learned counsel for the appellant seeks to advance this contention. Lakshmi Ammal purchased the

property on 29.6.1935 under Ex.A.2. Lakshmi Ammal''s husband Duraisamy Mudaliar passed away during the year 1962. Lakshmi Ammal

passed away on 6.5.1983. Munusamy Mudaliar, brother of Duraisamy Mudaliar also passed away on 20th September, 1984. The defendant in

the suit is the son-in-law of the said Duraisamy Mudaliar while the plaintiff in the suit is sister''s son of Lakshmi Ammal. There is no dispute with

respect to the above relationship.

Though it was contended that Lakshmi Ammal has no wherewithal to purchase the suit property during the year 1935 under Ex.A.2, equally

there is nothing to show that the funds for the purchase under Ex.A.2 was provided by Munusamy Mudaliar and Duraisamy Mudaliar. No

evidence has been placed before the court below to show that funds were available or provided or any asset of the joint family nucleus or

members was utilised for the purchase under Ex.A.2 in the name of Lakshmi Ammal. Further, there is nothing to show that there was joint family

assets on the crucial date or at or about the time when Ex.A.2 purchase was made. Munusamy Mudaliar under Ex.A.18 issued a notice to

Manickavelu through his Advocate. In that there is not even a whisper about the purchase. The claim that Munusamy Mudaliar and Duraisamy

Mudaliar provided funds for the purchase of the suit property in the name of Lakshmi Ammal has not been established, nor there is any claim that it

is a joint family property, nor there is even an indication that the property has always been treated as joint family property. In the said notice

Ex.A.18 on the other hand Munusamy Mudaliar admitted that the suit property belongs to Lakshmi Ammal and such a notice has been issued

through the counsel after proper advice. The said notice is fatal to the plea of benami or that the property was purchased in the name of Lakshmi

Ammal out of the money provided by the joint family or for the two brothers namely Duraisamy Mudaliar and Munusamy Mudaliar or that the

deceased Lakshmi Ammal was holding the property for the benefit of the family as a benami.

Lakshmi Ammal purchased the property under Ex.A.2 on 29.6.1935. The said Lakshmi Ammal during her life time on 22.4.1946 under

Ex.A.3 mortgaged the property and thus she has asserted her title to the property. In Ex.A.3 mortgage deed, Lakshmi Ammal asserted that it is

her property. It is true that in the said document Ex.A.3, her husband Duraisamy Mudaliar was a party. But the recital in Ex.A.3 would show that

the said Lakshmi Ammal has asserted her title to the suit property.

That apart, after the death of Duraisamy Mudaliar, during the year 1962, and till the death of Lakshmi Ammal at no point of time, Munusamy

Mudaliar had chosen to claim or assert or put forward any claim in respect of the suit property as one purchased out of the joint family funds or

held by Lakshmi Ammal as benami or that he was having a share in the property. Apart from the first mortgage Ex.A.3, the said Lakshmi Ammal

also executed mortgages Exs.A.4 and A.6 respectively dated 2.6.1953 and 22.4.1961, wherein also she claimed exclusive title and mortgaged the

property and to those mortgages her husband stood as a joint executant and he has assured payment.

Ex.A.11 would show that the property tax demand stands in the name of Lakshmi Ammal. When there is no evidence to the contra, there is

nothing to show that either Duraisamy Mudaliar or Munusamy Mudaliar have provided funds. Further, there is no plea as to why the property was

purchased in the name of Lakshmi Ammal or what is the motive behind such purchase, much less, benami purchase on the material point of time.

On a consideration of the above facts, the two courts below rightly negatived such a plea and as well as this court holds that the suit property is the

separate property of Lakshmi Ammal and she is the exclusive owner. Neither Duraisamy Mudaliar, nor Munusamy Mudaliar could claim any

interest nor they have succeeded in establishing the plea of benami purchase. The first point is answered in favour of the plaintiff and against the

defendant.

Taking up the next point, namely, whether Lakshmi Ammal is the owner of the suit property who executed Ex.A.1 Settlement Deed and

whether it is a true and valid document, it is to be pointed out that at no point of time it has been pleaded by the defendant that Lakshmi Ammal

never executed Ex.A.1 Settlement Deed and there is no specific denial in this respect. The plea of the defendant in this respect is a vague plea.

There is no plea that Lakshmi Ammal has not affixed her mark on Ex.A.1. In the absence of such a plea, it is sufficient to hold that it is proved that

Lakshmi Ammal has executed Ex.A.1 settlement deed. The defendant also pleaded that Ex.A.1 is vitiated by fraud, undue influence and other

vitiating circumstances. But there is no evidence to sustain such a plea. What has been pleaded by the defendant is the settlement deed Ex.A.1

dated 18.11.1968 is fictitious and a fraudulent document and that it was never intended to be given effect to or acted upon. It was further stated

that Lakshmi Ammal was a feeble minded person and she was not in possession of full mental faculty even to sign. In this respect, the two courts

have recorded a concurrent finding that Lakshmi Ammal executed the settlement deed on her own volition with full knowledge and conscious and

the two courts below negatived the plea of fraud or undue influence or other vitiating circumstances. This court was taken through the evidence by

the learned counsel for the appellant and this court has to point out that the defendant has miserably failed to establish such a plea and the plaintiff

has established that Lakshmi Ammal has executed the settlement deed validly.

The plea that the settlement deed came into being by fraud, undue influence, etc, has not at all been established and the defendant who has put

forward such a plea has failed to discharge the burden in this respect. On the other hand, the plaintiff has established that it is Lakshmi Ammal who

executed Ex.A.1 settlement deed.

P.W.2 Sivasankaran deposed about the execution of the settlement deed by the deceased Lakshmi Ammal. In para 14, the learned First

Appellate Judge rightly extracted the very deposition both chief and cross examination as well as re-examination and on a consideration of the oral

evidence recorded a finding and rightly too that Ex.A.1 settlement deed has been executed by Lakshmi Ammal while in a sound disposing state of

mind and it is a true document and is not vitiated by fraud, indue influence or other vitiating circumstances.

On the facts of the case, it is clear that the settlement has been duly executed by the deceased Lakshmi Ammal and attested by two witnesses

and she has presented the same before the Registrar for registration and she has been identified as well. The evidence let in by plaintiff has been

accepted in this respect. No exception could be taken to the findings. Hence the hair splitting argument that there is no valid execution, on the facts

of the case, cannot be sustained.

The findings recorded by the two courts below in respect of the settlement deed are concurrent findings. The learned counsel for the appellant

is unable to point out any perversity or omission in the appreciation of evidence in this respect. Siting in Second Appeal, this court will not be

justified in re-appreciating the evidence. That apart, the very deposition would show that the findings recorded by the two courts below are

balanced finding, supported by reasons and no interference is called for. Therefore the plaintiff under Ex.A.1, settlement deed has valid title to the

suit property.

Taking up the 3rd and 4th points, when once the settlement is held to be true and proved it follows automatically that the plaintiff is the

exclusive owner and the settlement having been acted upon the plaintiffs title cannot be divested by the alleged will. It is true that the defendant

applied for Probate in O.P. No. 474 of 1986 and a Probate was granted. But the plaintiff not being a party to the Probate proceedings he is not

estopped or barred from seeking for declaration of title to the suit property by virtue of a settlement anterior in point of time.

It is well settled in law that grant of Probate would not mean a title of either the executor or the testator is established or substantiated. In fact

the plaintiff applied on the Original Side of this Court for revocation. But this Court rejected the said application as not maintainable and thereafter

the present suit has been filed seeking for declaration of title and for other consequential reliefs.

The leaned counsel for the plaintiff rightly relied upon the pronouncement of the Supreme Court in Mrs. Elizabeth Antony Vs. Michel Charles

John Chown Lengera, where the scope of probate proceeding was considered and the Apex Court held thus:-

The learned counsel however, lastly submitted that the petitioner in spite of having substantial interest in the estate is losing her right to prove

that the alleged Will by Miss Zoe Enid Browne (sic) is not a genuine one and that it is a fictitious one. We must point out that by granting a probate,

the court is not deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Sec. 263 of the Act

in any one of the cases mentioned therein. But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court

regarding the caveatable interest will come in the petitioner''s way in seeking revocation of the grant of probate. It is needles to say that the findings

regarding the caveatable interests of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot

deprive his right, if he has any to invoke Sec.263 of the Act it is up to the petitioner to satisfy the Court.

In Smt. Rukmani Devi and Others Vs. Narendra Lal Gupta, , and Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and

Others, , the Apex Court considered identical situation and held that grant of probate would mean that the court was satisfied about the execution

of the Will by the testator, the value of the suit property for which the probate is applied for and that does not establish the title of the testator and it

follows that if a testator has no title his executing the will on the person will have no consequence at all and a right which has accrued to the plaintiff

by executing a settlement deed cannot be taken away by the will by a stranger to the suit property.

In Ghulam Qadir Vs. Special Tribunal and Others, , their Lordships of the Supreme Court held that grant of probate does not decide question

of title or of the existence of the property mentioned in the Will. The Apex Court in this respect held that grant of probate establishes as to the

appointment of the executor and a valid execution of the Will and it does not establish more than the factum of Will as Probate Court does not

decide the question of title or of the existence of the property mentioned therein. The Apex Court in this respect held thus:-

Learned counsel appearing for the appellant referred to the judgements of this court reported in Rukmani Devi V. Narendra Lal Gupta and

Chiranjilal Shrilal Goenka Vs. Jasjit Singh to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is

conclusive of the validity of the will unless it is revoked and no evidence can be admitted to impeach it except in proceedings taken for revoking the

probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the

executor and the valid execution of the will. However, it does not establish more than the factum of the will as probate court does not decide

question of title or of the existence of the property mentioned therein. If despite admitting the execution of the will and issuance of the probate, a

question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to

examine the Will or the probate to that extent.......

The two courts below concurrently and rightly recorded a finding that alleged will, will not confer any title on the defendant. In fact the

application taken out by the plaintiff to revoke the order passed in O.P. No. 474 of 1986 and the said Application has been disposed of holding

that the plaintiff herein has no coveatable interest and not being one of the heirs of Munusamy Mudaliar he cannot seek to have the probate

revoked and his remedy is elsewhere. Munusamy Mudaliar has no right to execute the Will, nor he could dispose of the suit property or deal with

the suit property as he was not the owner at any point of time and the property was the exclusive property of Lakshmi Ammal. Hence the Probate

proceedings are of no consequence and that will not in any manner divest the right of the plaintiff in the suit property. When once it is proved that

Lakshmi Ammal executed settlement deed in favour of the plaintiff, it follows automatically that Munusamy Mudaliar has no right to execute the

Will or bequeath the property in favour of the defendant. The Probate proceedings will neither constitute res judicata nor the plaintiff is estopped

from instituting the present suit. In the circumstances, the next two points are also answered against the defendant and in favour of the plaintiff.

The two courts below concurrently negatived the defendant''s plea and sustained the claim of the plaintiff. On the 4th point it follows

automatically that the testator of the Will dated 11.6.1984 has no right, nor authority to execute a Will or bequeath the property in favour of the

defendant as he was never a owner of the property nor he has any interest in the suit property. Hence, the 4th point is also answered against the

defendant and in favour of the appellant.

While discussing in detail the matter in respect of the first two points, this court as well as the two courts below concurrently taken the view

that Lakshmi Ammal was the owner and she was not a benami or name lender for the joint family of Munusamy Mudaliar and Duraisamy Mdaliar,

nor there is any proof to show that any portion of the joint family asset has been utilised for the purchase of the property by Lakshmi Ammal, nor

there is any material to show that the joint family had any asset or funds. No motive at all has been suggested, nor been established and therefore

the plea of benami also has to fail. When the suit property has been purchased by Lakshmi Ammal not out of jointly family funds nor she was

holding property benami for the purpose of the joint family, nor the joint family had at any point of time asserted any right over the suit property the

plea of benami has to fail. Hence this 5th point is also answered against the appellant and in favour of the respondent.

In this respect also the two courts concurrently recorded a finding and no illegality could be pointed out, nor made out by the counsel for the

appellant though he had argued the appeal verbose with all emphasis, but he has miserably failed to persuade this court to interfere. Being a second

appeal and when the plaintiff has substantiated his case which has been accepted by the two courts below after a consideration of oral and

documentary evidence, this court sitting in second appeal will not be justified at all in interfering with the concurrent findings when the findings are

balanced and they are not perverse nor there is any illegality warranting interference. The jurisdiction to interfere with the concurrent finding is

rather limited. On the facts of the case, it is clear that the plaintiff has succeeded and the two courts have rightly sustained the claim of the plaintiff

and the defendant has miserably failed.

In the result, all the points are answered against the appellant. The appeal fails and it is dismissed with cost.