Saroja vs Senthilkumar

T. Raja, J.—The appellant herein has preferred this Second Appeal, questioning the correctness of the Judgment of the lower appellate court/Additional Subordinate Judge, Tindivanam, passed in A.S. No.115 of 1993 on 05.03.2004, in and by which, the verdict of the trial court/Additional District Munsif, Tindivanam, rendered in O.S. No.1095 of 1985 on 30.04.1993, decreeing the suit filed by the plaintiff as against the 3rd defendant/appellant herein, 2nd defendant/2nd respondent herein and another, came to be confirmed.

For better appreciation, the factual backdrop that led to filing of this present Second Appeal may be briefly recapitulated hereunder:

The first respondent herein by name Senthil Kumar, as plaintiff, filed O.S. No.1095 of 1985 by pleading that the suit property and other properties originally belonged to Arumuga Mudaliar, who had two daughters and a son viz., Mangalam, Saraswathi and Jayasubramanian. Mangalam, whose son is Defendant No.1 Dhandapani, died 15 years back. The plaintiff is the son of Saraswathi/another daughter of Arumuga Mudaliar. Jayasubramanian, the only male issue of Arumuga Mudaliar, died in the year 1982 leaving behind his wife Saroja/appellant herein as his heir. After his demise, left with no male issue and suffering from physical ailments, Arumuga Mudaliar executed a general power of attorney dated 18.12.1982 in favour of defendant No.1/Dhandapani for managing and safeguarding his properties. After recovery, Arumuga Mudaliar, by way of a registered cancellation deed dated 17.04.1984, cancelled the General power of Attorney executed in favour of Dhandapani. On 18.08.1984, he adopted plaintiff-Senthilkumar as his son by duly following the rituals and also in terms of the Hindu Law. Apart from executing a registered settlement deed dated 20.09.1984 in favour of the plaintiff, Arumuga Mudaliar, before his demise, also executed a registered Will dated 11.10.1984, bequeathing the respective properties mentioned therein in favour of the plaintiff and his mother Saraswathi, who is none else than one of the daughters of Arumuga Mudaliar. While so, Defendant No.1 Dhandapani attempted to trespass into the properties of the plaintiff by creating a fake Will dated 13.01.1985 as if it was the last Will executed in his favour by Arumuga Mudaliar. This compelled the plaintiff and his mother-Saraswathi to file Original Suit No.57 of 1985 on the file of Sub Court, Tindivanam, for declaration of their title to the properties and for an injunction restraining the first defendant from interfering with their possession. Interim injunction was granted in the said suit and enraged by that, the defendants made an attempt to trespass into the properties but in vain. With an apprehension that again, such attempts to trespass would be renewed by the defendants, the plaintiff filed the suit in O.S. No.1095 of 1985 seeking for a declaration of his title to the suit properties and to grant an order of permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff''s peaceful possession and enjoyment of the suit properties.

By filing written statement, Defendant No.1 pleaded that there was no valid adoption of the plaintiff by Arumuga Mudaliar and therefore, any right conferred on him in respect of the properties is nullified in law. Even if the settlement deed said to have been executed in favour of the plaintiff is presumed to be a valid document, it can not be acted upon since the executor-Arumuga Mudaliar himself is not entitled to execute such a settlement deed in respect of joint family properties. In other words, the subject matter was not the self-acquired properties of Arumuga Mudaliar. Hence, equally, the Will dated 11.10.1984 also cannot be acted upon. It is this defendant who took care of Arumuga Mudaliar during his last days and, out of the love and affection towards him, Arumuga Mudaliar not only initially executed a general power of attorney in favour of D-1 but also, before his death, executed the will Dated 13.01.1985 and, on the face of the said last Will and testament, the plaintiff''s case is clearly washed away. Based on the Power, there was a sale agreement dated 05.07.1984, whereby, the 2nd defendant agreed to purchase suit items-1 to 3, 5 to 8 and other items not in the suit schedule for a valid consideration of Rs.60,000/- and, on the date of agreement, D2 paid the sum with an assurance to pay the balance of Rs.10,000/- within a period of four months at the time of execution of the sale deed and the received consideration of Rs.60,000 was handed over to Arumuga Mudaliar by the power Agent/D1. In spite of knowing these transactions, the plaintiff and his mother conveniently feigned ignorance. The suit in O.S. No.57 of 1985 on the file the Sub Court, Tindivanam, was a vexatious litigation and the ex-parte order of injunction obtained by the plaintiff therein was later vacated on 19.12.1985. Therefore, the plaintiff not having any right over the properties of late Arumuga Mudaliar and all the documents projected by him not being substantive in nature, the suit is liable to be dismissed. In the same line, the other two defendants filed their individual written statements, seeking dismissal of the suit.

The trial court, after deeply delving into the claim of either side and exhaustively examining the oral and documentary evidence adduced by them, found that the execution of the settlement deed dated 20.09.1984 was absolutely valid and further, the plaintiff, who is in possession of the suit properties, has a clear right over the same and that, on the contrary, the defendants have miserably failed to prove their case, and so finding, decreed the suit as prayed for on 30.04.1993. The appeal filed in A.S. No.115 of 1993 before the Sub Court, Tindivanam, came to be dismissed on 05.03.2004, confirming the verdict of the trial court; hence, the aggrieved 3rd defendant has come up with the present Second Appeal.

At the time of admission of the Second Appeal, the following substantial questions of law came to be framed :-

"(i) Whether the dispossession made beyond the limits prescribed under Section 30 of the Hindu Succession Act is valid especially when the properties are joint family properties?

(ii) When PW-2, one of the witnesses examined for proof of settlement, pleads ignorance about the executor of settlement deed, still are the courts below right in ignoring Section 68 of the Evidence Act for proof of Settlement Deed?"

Learned counsel appearing for the appellant, with reference to question of law No-i, would vehemently contend that the Will dated 11.10.1984 said to have been executed by Arumuga Mudaliar and based on which the plaintiff makes his claim to the properties in question cannot be legally acted upon for the simple reason that the subject matter of the will viz., the properties in question, are not the self-acquired properties of Arumuga Mudaliar but, they are the joint family properties. Hence, the Will itself not being a valid document in the eye of law, the so-called bequeathing cannot be legally enforced. It is specifically submitted that, another Will dated 13.01.1985, though it was unregistered, was a valid Will and which was executed at a later point of time in favour of D-1, automatically revoked the previous will. Unfortunately, the lower appellate court mechanically confirmed the perverse judgment of the trial court without any independent discussion on the very vital aspect relating to the legal sanctity of the previous Will. The case of the appellant, who is none else than the widow of Jayasubramanian-the only male issue of Arumuga Mudaliar, was not even considered by both the courts below irrespective of the abundant materials made available in the form of oral and documentary evidence well substantiating her claim that the properties in question are purely joint family properties and that the appellant-D3 has her due share in those properties. Therefore, when both the courts below committed serious mistakes in acting upon the Will dated 11.10.1984 which is not even sustainable in law and wrongly treated the joint family properties as the self-acquired properties of Arumuga Mudaliar, the illegality is apparent on the face of the records, hence, interference with the concurrent findings is absolutely called for.

Coming to the 2nd question of law, it is submitted that PW-2 Elumalai, in his evidence, did not come up with a clear version about the due execution of the settlement deed, dated 20.09.1984. Thus, in effect, the requirement under Section-68 of the Indian Evidence Act to examine at least one attesting witness, was not complied with. While so, despite noting contradictions in the evidence of PW- 2, both the courts below, for the best reasons known to them, erroneously proceeded to act upon his testimony so as to totally rely upon the settlement deed, thereby, wrong conclusions have been reached concurrently by both the courts below, hence, the ultimate illegality committed by both the courts below may have to be set right by this Court by allowing the Appeal.

Per contra, learned counsel appearing for the first respondent/plaintiff and R-6 to whom the first respondent is said to have sold certain items of the suit properties, submitted that the documentary evidence adduced by the plaintiff, in particular the Will dated 11.10.1984 and the settlement deed dated 20.09.1984, weighed much before the courts below because the due execution and the authenticity thereof could not be impeached by the other side. In fact, the Will in question which was attacked by the other side was a registered one while the subsequent Will dated 13.01.1985 was an unregistered document and both the courts below could easily identify the latter to be a fake and concocted document for defeating the rights of the plaintiff. Further, the Settlement Deed could not be doubted and rightly, the lower appellate court adverted to the relevant portions from the testimony of the attesting witness PW-2 clearly suggesting proper execution of the settlement deed and also, it was specifically pointed out that the so-called contradictions much highlighted by the other side in the evidence of PW-2 was so trivial that it would in no way affect the authenticity of the document. With added vigor, he would submit that the issues now raised have already been discussed with emphatic conclusions by the Honourable Supreme Court when the matter was unsuccessfully pursued by the present appellant13 Saroja by way of Civil Appeal No.529 of 2011 (arising out of SLP (C) No.21065 of 2004 - verdict dated 14.01.2011) filed against the Judgment, dated 25.07.2004, rendered in A.S. No.774 of 1989 which appeal was preferred against Judgment in the other suit originally filed by the plaintiff along with his mother in O.S. No.57 of 1985. He added that the Supreme Court already concluded in favour of the plaintiff/R1 herein about the legal validity of the Will dated 11.10.1984 and the right of the plaintiff over the properties in question. Therefore, according to him, the appellant has no ground whatsoever to succeed in the present Appeal. So submitting, he prayed for dismissal of the Appeal.

Also heard Mr. Senthilkumar-R4, appearing as party-in-person.

I have given my thoughtful consideration to the rival submissions advanced on either side.

In respect of question of law No.1, it is relevant at the first instance to extract below Section-30 of the Hindu Succession Act:

"30. Testamentary succession. - Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Explanation.- The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this [section.] "

Undoubtedly, the above provision permits a Hindu to dispose of his property by way of Will, but, the issue here is relating to the subject matter of the Will viz., suit properties, about which, it is the definite case of the appellant/3rd defendant that they are the joint family properties and not the selfacquired properties of the Testator-Arumuga Mudaliar. This Court does not desire to delve deeply into this issue since it has been aptly considered in the light of oral and documentary evidence by both the Courts below and further, the Supreme Court also specifically dealt with the same while deciding SLP No.21065 of 2004 by recording the following conclusion:-

"We do not accept the submission of the learned counsel appearing on behalf of the appellant that the properties which had been bequeathed by late Arumugha Mudaliar under his Will dated 11th October, 1984 were joint family properties. The learned counsel submitted that the said properties belonged to late Shri Ratna Mudaliar, father of late Arumugha Mudaliar. We do not accept the said contention for the reason that no documentary evidence of whatever type was adduced before the trial court to show that late Arumugha Mudaliar had inherited the properties referred to in the will dated 11th October, 1984 and that it originally belonged to late Shri Ratna Mudaliar, father of late Arumugha Mudaliar. No documentary evidence or revenue record showing ownership of late Shri Ratna Mudliar was produced before the trial court. In absence of such an evidence, in our opinion, the High Court rightly came to the conclusion that the properties which stood in the name of late Arumugha Mudaliar, belonged to him and no other family member had any right therein, as the said properties did not belong to the family. We, therefore, agree with the conclusion arrived at by the High Court that the properties in question were not joint family properties."

(emphasis added)

Apart from the above conclusion, the Supreme Court also answered one another vital issue raised before it about the adoption of the plaintiff by Arumuga Mudaliar and concluded that the plaintiff was the legally adopted son of the Testator. Even though here, the trial court held otherwise on the issue of adoption, since the ultimate conclusion arrived at by it about the validity of the aforesaid will is absolutely right and correctly affirmed by the lower appellate court, this Court finds no justification in the contrary claim and arguments of the appellant and hence, the above question of law is answered against the appellant. Coming to the second question of law which revolves around the evidence of PW-2, this Court, having regard to Section-68 of the Evidence Act which reads thus,

"68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. "

re-looked into his evidence and found that the said witness clearly stated on material aspects that he not only attested the Settlement Deed but he as well as the other attesting witnesses saw Arumuga Mudaliar signing the settlement deed and that further, Arumuga Mudaliar also saw attestation by the witnesses. Therefore, minor contradiction between the version of the above witness and the other attesting witnesses was rightly pointed out to be immaterial by the lower appellate court so as to affect the genuineness of the settlement deed. This Court does not find any good reason to doubt the authenticity of the settlement deed for trivialities particularly when both the courts below have correctly analysed its nature in a broader way and ultimately arrived at a definite factual conclusion thereon. Since one of the attesting witnesses/PW-2 was examined who clearly stated about the proper execution of the document in question, this Court is of the view that the requirement under Section 68 of the Indian Evidence Act is fully satisfied. Consequently, this question of law is answered against the appellant.

In fine, Second Appeal is dismissed as devoid of any merit, confirming the concurrent judgments of the courts below. No costs.