Sivaji Rao vs Eswari Bai and Others

R. Karuppiah, J.—The Appellant/Plaintiff filed this Appeal Suit as against the decree and judgment made in O.S. No. 121 of 1990 on the file of Sub Court, Kumbakonam, dated 28.04.1995. The Appellant/Plaintiff filed a suit seeking the following reliefs:

a. for declaration of title in respect of ''A'' schedule property, namely ABCD indicated in the plaint sketch, consequently directing the defendants to hand over possession of the ''B'' schedule property shown in red colour portion as ''ABEFGH'' and ''GIJK'' in the plaint sketch.

b. A permanent injunction in respect of ''C'' schedule property shown as yellow colour portion, i.e. ''EFGI'' and ''HGKJCD'' in the plant sketch.

c. Future profits in respect of ''B'' schedule property under Order 20 Rule 12 C.P.C.

d. For costs of the suit; and e. Such other reliefs.

Briefly the case of the plaintiff averred in the plaint is that the ''A'' schedule property i.e. house property shown as ABCD in the plaint sketch was the exclusive and absolute property of one Padma Bai, wife of M.S. Chinnu Rao. In the sketch, the Orange colour portion indicated as ABEFGH and red colour portion indicated as GIJK are shown as ''B'' schedule property. The green and yellow colour portion in A Schedule property are indicated as EFGI, HGKJLM and LMDC are shown as ''C'' schedule property. The above said portion shown as ''B'' and ''C'' schedule are within entire portion of the ''A'' schedule property. According to the plaintiff, the green colour portion is in the occupation and possession of the plaintiff and the yellow colour portion is in possession of the plaintiff''s tenant.

According to the Plaintiff, the above said M.S. Chinnu Rao had two wives. The first wife namely Kausalya Bai and the second wife namely Padma Bai. The above said M.S. Chinnu Rao had four sons and two daughters through his first wife Kausalya Bai, namely 1. C. Rajamani, 2. Vittal Rao (who died leaving the defendants 1 to 8 as his legal-heirs), 3. Rajendran (D9) 4. C. Swaminathan alias C. Shanmugam (D10), 5. Rathna Bai, (who died leaving the defendants 12 to D15 as his heirs), 6. Lakshmi Bai (D11). The plaintiff is the only son of M.S. Chinnu Rao through his second wife Padma Bai.

It is further averred in the plaint that ''A'' schedule property was purchased by the plaintiff''s mother Padma Bai, out of her own funds from one Krishnamoothy Rao by means of a registered sale deed, dated 19.10.1974 for consideration of Rs. 15,000/- and she was in actual possession and enjoyment of the ''A'' schedule property as absolute owner till her life time. The first wife of M.S. Chinnu Rao was died in the year 1963. The defendants, who are the first wife''s children of M.S. Chinnu Rao, are not entitled to ''A'' schedule property. The first wife''s son Rajamani and the 9th defendant were permitted in the month of January 1985 to reside in the ''B'' schedule property, namely ABEFGH portion indicated in orange colour and both of them have been residing in the said portion only on permissive occupation. The plaintiff, his mother and his father residing in ''C'' schedule property, i.e. eastern portion indicated green colour as HGKJLM and also receiving rents by letting out the remaining yellow colour portion LCDM. The above said Padma Bai died on 17.12.1980 leaving behind the plaintiff and her husband, namely M.S. Chinnu Rao as her legal heirs and hence, both of them are entitled to equal share in the ''A'' schedule property.

The Plaintiff further stated in the plaint that M.S. Chinnu Rao, out of his own, free will and volition and while in sound disposing state of mind, executed a registered will on 16.11.1987 bequeathing his undivided half share in the ''A'' schedule property in favour of the plaintiff. Subsequent to the execution of the Will, the said M.S. Chinnu Rao thought it fit to execute a release deed and hence, he executed a registered release deed, dated 16.10.1988 releasing the same property (i.e.) his undivided half share in the ''A'' schedule property in favour of the plaintiff and release deed was acted upon. Accordingly, the plaintiff has become the absolute owner of the entire ''A'' schedule property and the above said fact also aware of the defendants.

According to the plaintiff, the above said M.S. Chinnu Rao died on 28.07.1989. Immediately after his death, Rajamani and the defendants 9 to 11 with ulterior motive issued a registered notice, dated 31.08.1989 contending as if ''A'' schedule property was purchased by M.S. Chinnu Rao as benami in the name of his second wife, namely Padma Bai for the benefit of the family and claiming share in the suit'' A'' schedule property. All the above said allegations are false. The 10th defendant is not residing in the ''A'' schedule property. Further, the contention of the defendants that M.S. Chinnu Rao had sold his ancestral house and lands for Rs. 2,00,000/- and out of that sale proceeds, a site purchased in the name of Padma Bai and a house was constructed thereafter and the said site and house were sold and then, the suit A schedule property was purchased in the name of Padma Bai are all false. The site in old Aranmanaikara Street was purchased by Padma Bai out of her own funds and a house was also constructed out of her own funds. Thereafter, the said house and the site sold by her and the suit A Schedule property was purchased by her. Therefore, A schedule property was separate, exclusive and self earning property of Padma Bai and not the property of, either M.S. Chinnu Rao or joint family property, as averred in the notice. Further, the theory of Benami is against the provisions of Benami Prohibition Act 45 of 1988. Only after the death of Chinnu Rao, the defendants claimed as if the A schedule is the joint family property and also alleged that Padma Bai had no funds to purchase the A schedule property. Further, the denial of Will and release deed executed by M.S. Chinnu Rao in the notice are false and baseless. M.S. Chinnu Rao was competent to execute a Will and also release deed in respect of his undivided half share in favour of the plaintiff.

It is also averred in the plaint that, the plaintiff had issued a notice on 11.09.1989 to Rajamani and the 9th defendant revoking the permission granted to them and calling upon them to hand over possession. But they have issued reply on 16.09.1989 and 20.09.1989 with false contentions. The above said Rajamani died and the D1 is his wife. D2, to D7 are his legal heirs. One S. Renganathan as a tenant was occupying a room in the rear side of the suit ''C'' schedule property, which was in possession of the plaintiff at the time of notice. After exchange of notices, in collusion with the defendants, he vacated the room i.e. red colour portion indicated as GIJK in the plaint sketch in the month of November 1989 and handed over the possession to the defendants, in-spite of the protest made by the plaintiff. Hence, the above said room also shown in the suit as C schedule property. Since, the defendants have denied the title of the plaintiff in respect of the entire property i.e. ''A'' schedule property, the suit is filed for the above said reliefs already stated.

The defendants 1 to 11 filed written statement, in which, it is denied the contentions of the plaintiff that the A schedule property originally belonged to Padma Bai absolutely and the defendants recognized her title. According to the defendants, plaintiffs and defendants ancestors carrying on tailoring business as Hindu family business and the father of the defendants, namely M.S. Chinnu Rao also carried on the family tailoring business and he also inherited house and lands as the only son of his father, who died in 1928. All the income from the family business was managed only by Chinnu Rao. Further, the defendants contributed fully to the earning of the family, which was brought to the hotchpot of the undivided Hindu family of Chinnu Rao and his sons. M.S. Chinnu Rao married the plaintiff''s mother Padma Bai, after the death of his first wife in the year 1963. Padma Bai parents were very poor and she did not bring anything to her husband''s house and the entire marriage expenses were met by M.S. Chinnu Rao, out of the family earnings. Soon-after the marriage of Padma Bai, her husband M.S. Chinnu Rao out of the joint family earnings and ancestral nucleus purchased No. 8 Old Aranmanaikara Street, in the name of his second wife Padma Bai as Benami and constructed a house therein with such funds for the benefit of Hindu undivided family of Chinnu Rao. For the above said purpose, Chinnu Rao sold the house purchased in his name out of ancestral nucleus and joint family earnings where the Chinnu Rao and his first wife''s son were living jointly. Subsequently, they were residing in the said house as joint owners in their own rights.

It is also averred in the written statement that this suit property (i.e.) A Schedule property was also purchased again as Benami in the name of Padma Bai out of the joint family funds of Chinnu Rao and his first wife son for the benefit of Hindu undivided family and the defendants are also in possession and enjoyment of the same in their own rights along with others as one of the lawful owners. The property was never divided. The 9th defendant for the purpose of convenience, moved to the western portion after his marriage. Therefore, the contention of the plaintiff that Padma Bai purchased the suit house out of his own funds and she was in possession and enjoyment of the same as absolute owners are all false. She never asserted any title, right or interest over the suit property. She was residing there only as a member of the family and the suit house was always been treated and enjoyed as joint family property and Padma Bai only the name lender. It is also false to state that 9th defendant and Rajamani were permitted to reside in the western portion. The plaintiff has admitted in the reply notice, dated 11.09.1989, as they have been residing from 1974. The green colour portion EFGHI was also in possession and enjoyment of the defendant, but the plaintiffs locked it after obtaining injunction in the suit.

According to the defendants, the alleged will, dated 16.11.1987 and the release deed, dated 06.10.1988 are not true, valid and genuine documents. The above said documents would not and could not have been written by Chinna Rao voluntarily with a sound state of mind and health and out of his own volition and free will. Further, Chinna Rao had absolutely no right to give half share in the suit house, which belongs to the undivided Hindu joint family consisting of Chinn Rao, the his first wife''s sons and his second wife son and hence, not binding the defendants. The plaintiff is not entitled to one half share in the suit property. Further, Chinnu Rao, Padma Bai, the defendants and the plaintiff have all been treating the suit property and the property No. 8, Old Aranmanaikara Street, as joint family property of the family such by their long conduct, acts acquiescence and also estopped from denying the title of the defendants. The defendants 1 to 11 are entitled 22/30 shares in the suit house and movables. The plaintiff has suppressed the family movables, includes M.S. Chinnu Rao tailoring business. His Unit Trust Holding Bank deposits, the amount received from it and Life Insurance Corporation fund have also got to be divided. The defendants'' mother owning jewels details givens as B schedule property in the written statement and some of them have been sold by Chinnu Rao for the purpose of purchase of properties, including the suit property and house No. 8 Old Aranmanaikara Street, house. The defendants claimed partition and separate possession in all the family properties including suit property. The suit property worth about more than 2,50,000/- and hence proper court fee has not been paid. The tenant who is in possession in a portion of the building also necessary party. The plaintiff has no right to receive rent from the tenant and hence, he should deposit the same into court. The defendants also paid Rs. 100/- as court fee for partition and separate possession of their shares. Therefore, prayed for dismissal of the above said suit filed by the plaintiff with exemplary costs and prayed for to pass a decree for partition.

The plaintiff has filed a reply statement, in which it is denied the various averments made in the written statement and stated that the claim made by the defendants that the suit property is a joint family property is totally false. Further contention of the defendants that the plaintiff ought to have filed the suit for partition is also quite malafide. It is also false to state in the written statement that Padma Bai parents were very poor and gave Padma Bai in marriage to Chinnu Rao out of poverty. Further, the site bearing Door No. 8, Old Aranmanaikara Street, was purchased by Padma Bai out of her own funds and the house was constructed out of her own funds. Padma Bai had own earnings and out of her own earnings, she purchased the above said site and constructed a house. It is not purchased out of the joint family earnings and ancestral nucleus. The theory of the defendants that Chinnu Rao purchased the suit property in the name of Padma Bai as Benami for the benefit of Hindu undivided family and they were residing in old Aranmanaikara street as joint owners are all false. According to the Plaintiff, the above said house was the exclusive property of Padma Bai and she sold that property and then purchased the suit A schedule property. The theory of Benami is also hit under the Benami Abolition Act 45 of 1988. Padma Bai has been exclusive right, title and interest over the A schedule property to the knowledge of the defendants and therefore, they are estopped. Some of the defendants have been permitted to reside in the portion of the property and the portion IJKG was taken possession forcibly by the defendants. Chinnu Rao living with the plaintiff, since the plaintiff is unmarried and the defendants did not raised any right in the suit property till the life time of Chinnu Rao the Will, dated 16.11.1987 and the release deed, dated 06.10.1988 are true and valid documents. The plaintiff has got half share by succession and remaining half share by way of will and release deed and hence, the defendants have no right or share in the suit property. Proper court fee has been paid by the plaintiff. The plaintiff does not know the alleged movables mentioned in A schedule and jewels in B schedule described in the written statement. Absolutely no merits in the defence and therefore, prayed for dismissal of counter claim and also prayed for decreeing the suit filed by the plaintiff with costs.

The trial court, considering the above said pleadings, framed the following 11 issues for consideration:--

Whether the A schedule property is the absolute property of Padma Rao?

Whether the suit property was purchased by Chinnu Rao in the name of the Chinnu Rao''s second wife out of the ancestral property and improved the same?

Whether the suit property was purchased out of the defendants earnings?

Whether the suit property was purchased by Padma Bai out of her own earnings?

Whether the suit property was purchased in the name of Padma Bai as Benami, out of the joint family income and ancestral property income?

Whether the defendants and Rajamani were in permissive possession in western portion of the suit property?

Whether the Will, dated 16.11.1987 executed by Chinnu Rao is true?

Whether the release deed, dated 16.10.1988 is true?

Whether the defendants are entitled to 22/30 share in item Nos. 1 to 11 properties described in the plaintiff and written statement?

Whether the suit is correctly valued and paid correct court fee?

What relief, the plaintiff is entitled to?

Before the trial court, on the side of the plaintiff, two witnesses were examined as PW1 and PW2 and marked 13 documents as Ex.A1 to A13. On the side of the defendants, four witnesses were examined as DW1 to DW4 and marked 24 documents as Exd.B1 to B24.

The trial Court has considered the oral and documentary evidence adduced on either side and finally held that the entire portion i.e. ''A'' schedule property originally belonging to the plaintiffs'' mother viz., Badma Bai as self acquired property as per Ex.A6, sale deed, dated 19.10.1974 and not purchased by her husband out of income from joint family business and rejected the contention of the defendants that the entire ''A'' schedule property purchased out of income from joint Hindu Family Properties. But the trial Court has held that Ex.A13, registered ''Will'' executed by Chinnu Rao on 16.11.1987 and also the same Chinnu Rao executed a release deed regarding same property on 06.10.1988 under Ex.A12 releasing his half share in the entire "A" Schedule property in favour of the plaintiffs are all not proved as genuine documents since contradictions in the oral evidence of P.W.1 and P.W.2 and therefore, the plaintiff is not entitled to entire suit property and further held that the plaintiff ought to have been filed suit for partition and not entitled to the relief of declaration and other reliefs and finally dismissed the above said suit and also not granted any relief to the defendants as prayed for in the counter claim-cum-written statement.

Aggrieved over the above said findings regarding Exs.A12 & A13 (i.e.) release deed and will, the appellant/plaintiff alone filed this first appeal. But the respondents/defendants have not filed any appeal or cross-appeal, as against the findings regarding issue Nos. 1 to 5 that the entire suit property (i.e.) A schedule property was purchased only by the plaintiffs mothers Badma Bai, as per Ex.A6 sale deed dated 19.10.1974 and it is not benami property, as contended by the defendants.

Points for consideration in this first appeal are;-

Whether the respondents/defendants entitled to challenge the finding regarding issue Nos. 1 to 5 (i.e.) the suit property belonging to Badma Bai, as per Ex.A6 sale deed?

Whether the entire portion of the suit property (i.e.) A schedule property is a self-acquired property of plaintiff''s mother-Padma Bai?

Whether the respondents/defendants have proved that the entire portion of the suit property (i.e.,) A schedule property was purchased out of joint family nucleus?

Whether Exs.A12 and A13 release deed and will executed by the plaintiffs'' father, in favour of the plaintiff, are proved as true and valid documents?

Points No. 1 to 3

Admittedly the entire suit property i.e. ''A'' schedule was purchased in the name of plaintiff''s mother viz., Badma Bai and the plaintiff is the only son of Badma Bai, who is second wife of M.S. Chinnu Rao. It is also not in dispute that the defendants are legal heirs of Chinnu Rao through the first wife Kausalya Bai. The case of the plaintiff is that the entire suit property viz., ''A'' schedule was purchased by his mother viz., Badma Bai and after her death, the plaintiff having half share, as her son and M.S. Chinnu Rao having half share as husband of the above said Badma Bai. It is further submitted that the above said Chinna Rao had executed a registered ''Will'', Ex.A13 in favour of the plaintiff regarding her half share and after that, the same Chinnu Rao executed a release deed-Ex.A12 in respect of the same half share in favour of the plaintiff and therefore, the plaintiff is entitled to the entire suit property viz., ''A'' schedule property. As already stated, the trial Court has discussed in detail about Ex.A6 sale deed purchased by the plaintiff''s mother and finally held that the above said entire suit property viz., ''A'' schedule belonged to the plaintiff''s mother, Badma Bai, as self acquired property and not purchased by her husband viz., M.S. Chinnu Rao out of joint family nucleus. As against the above said findings of the trial Court, the respondents/defendants have not fled any appeal or cross appeal.

The learned counsel appearing for the respondents/defendants would submit that the respondents/defendants are entitled to challenge the above said findings even though not filed any appeal or cross appeal regarding the finding in issue Nos. 1 to 5. The learned counsel appearing for the appellant/plaintiff submitted that, unless the respondents/defendants have not filed any appeal or cross-appeal, they are not entitled to question the findings of the trial Court in issue Nos. 1 to 5. The learned counsel for the appellant/Plaintiff relied on the followings decisions to substantiate his contention.

(a) The decision of Hon''ble Supreme Court reported in Laxman Tatyaba Kankate and Another Vs. Smt. Taramati Harishchandra Dhatrak, in which in para 24 reads as follows:

It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. As it appears from the record, the present appellants have neither filed cross-objections nor their appeal challenging the findings recorded by the learned trial court. In fact, the entire conduct of the present appellants shows that they have not only failed to prove their claim before the courts of competent jurisdiction but have even not raised proper pleas in their pleadings.

(a) The another decision of Hon''ble Supreme Court reported in Banarsi and Others Vs. Ram Phal, in which in para 12 reads as follows:

We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.

As rightly pointed out by the learned counsel for the appellant/plaintiff, from the law laid down by the Honourable Supreme Court, in the above said decisions, the respondents/defendants not entitled to question the findings of the trial Court in issue Nos. 1 to 5 that the suit property (i.e.) entire A schedule property was self acquired property of Padma Bai and not purchased in her name as Binami out of joint family fund as contended by the respondents/defendants.

Even assuming that the respondents/defendants are entitled to question the above said finding of the trial Court, as rightly pointed out by the learned counsel for the appellant/plaintiff, the respondents/defendants have failed to prove their contention that the entire suit property i.e. ''A'' schedule property was purchased out of joint family business or income. Further, the learned counsel for the appellant/plaintiff pointed out that, since the suit property was purchased in the name of second wife of Chinnu Rao and not purchased in the name of Chinnu Rao, who was Kartha of the family and in the above said circumstances, the burden of proof is only lies on the respondents/defendants to prove that the above said contention by adducing reliable oral and documentary evidence, but in the instant case, the respondents/defendants failed to prove their contention by adducing reliable oral and documentary evidence that at the time of Ex.A6, sale deed Chinnu Rao''s family having sufficient nucleus to purchase the suit property and out of that nucleus, the suit property was purchased.

The learned counsel appearing for the appellant/plaintiff relied on the following decisions to substantiate his contentions.

(a) A decision of Hon''ble Supreme Court reported in Gangamma etc. Vs. G. Nagarathnamma and Others etc., in which in para 8 & 9 read as follows:

The learned counsel for the appellant contended that without any evidence the High Court came to a finding that the husband of Plaintiff 1 had substantial income. From the list of the documentary evidence produced before the trial court nothing appears on record to indicate that there was any document evidencing the income of the husband of Plaintiff 1. Therefore the High Court fell into an error by holding that though the properties at Items 1 and 2 are recorded in the name of the appellants, they are joint family properties.

Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act") has a bearing on the issue. As the properties at items 1 and 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties. In the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties.

(a) An another decision reported in K.V. Ramasamy Vs. K.V. Rahgavan, K.V. Sridharan, Lalitha Viswanathan and Jeyalakshmi Sridharan, in which in para 52 read as follows:

Now the Court has to look into the properties standing in the name of the fourth defendant viz., wife of the first defendant. It is an admitted fact that some items of the suit properties are standing in the name of the 4th defendant who is none other than the wife of the first defendant. The specific contention of the appellant/plaintiff is that the first defendant by Utilising joint family funds has purchased the properties in the name of 4th defendant. But the settled legal position is that the properties acquired, standing in the name of a female member of a Hindu Joint family cannot be treated as joint family properties and the female member need not prove as to how she acquired it. Therefore, it is quite clear that the properties standing in the name of the 4th defendant, wife of the first defendant are her separate properties. Therefore, in the light of the elucidation of both the factual and legal aspects, this Court can unflinchingly come to a conclusion that except the properties standing in the name of the 4th defendant, the remaining suit properties are the self-acquired properties of the first defendant.

A careful reading of the above said law laid down by the Honourable Supreme Court and this Court clearly reveal that the properties acquired standing in the name of a female member of a Hindu family cannot be treated as a joint family property and the female member need not be proved as to how she acquired it and the onus is only on the persons claiming rights as joint Hindu family properties.

In the instant case, admittedly, suit A schedule property i.e., entire property was purchased in the name of Padma Bai i.e. second wife of Chinnu Rao. Therefore the suit property is not purchased in the name of Chinnu Rao or his sons through first wife. In the Written Statement or at the time of evidence, on the side of the defendants, have not given any acceptable reasons why the property was purchased in the name of female member. In the above said circumstances, as rightly pointed out by the learned counsel for the appellant/Plaintiff, the onus is only on the respondents/defendants to prove that the above said property was purchased only out of the income from the joint family property for the benefit of the members of the joint family.

The trial Court has discussed in detail about the oral and documentary evidence adduced on either side and finally held that the entire suit property was originally belonging to Padama Bai who purchased under Ex.A6-Sale deed. Admittedly, the suit A schedule entire property was purchased under Ex.A6 on 19.10.1974 only in the name of Padma Bai. It is also admitted by both sides that prior to Ex.A6-Sale deed, the above said Padma Bai had purchased D. No. 8 house property from one Lokambal on 27.10.1964 under Ex.B2 dated 27.09.1964. It is also admitted that the above said property was sold by Padma Bai in favour of one Petchiammal on 27.3.1974 and immediately purchased the entire ''A" schedule suit property on 19.10.1974 under Ex.A6. The above said Padma Bai after purchase under Ex.A6, on 23.1.1975 executed a registered mortgage deed in favour of one Radha Bai in respect of the suit property. In the above said document, it is clearly stated that the suit A schedule property was purchased only by Padma Bai and also stated that she is exclusively entitled to the suit property and she is in possession. Therefore the above said document also clearly proved that the Padma Bai purchased the suit A schedule property under Ex.A6 and then executed a mortgage deed under Ex.A7 as owner of the property. Further, a perusal of the oral testimony of P.W.1 and 2 and also other documents filed by the plaintiff''s side reveal that the suit A schedule property was purchased by Padma Bai and treated as self acquired property of Padma Bai and she was in possession and also mortgaged the above said property as the owner of the property.

Further, on the side of the appellant/Plaintiff has produced Ex.A8 and Ex.A9 Compromise memo and R.C.O.P. No. 70/1981 proceedings. In the above said Ex.A9, it is clearly stated that the petition mentioned building (i.e. suit "A Schedule property) originally belong to only Padma Bai, The above said averments reveal that the above said Padma Bai executed the registered simple mortgage deed in favour of the respondent with above proceedings for a sum of Rs. 4000/- and also stated that Padma Bai died on 17.12.1980 leaving behind her husband/first petitioner therein and her son, the second petitioner therein as her legal heirs. Therefore the above said Ex.A8 and Ex.A9 also clearly proved that the entire A schedule suit property originally belong to Padma Bai as self acquired property and not joint family property as contented by the defendants.

As already stated, since the respondents/defendants claimed rights over the suit property as joint family property purchased with the help of joint family nucleus in the name of female member namely Padma Bai, the onus is only on the defendants to prove the same. As rightly discussed in detail by the trial Court, on the side of the defendants, have not produced any acceptable documents to prove the contention that the sale consideration for Ex.A6-Sale deed was paid only out of the joint family fund. Further, no acceptable evidence to prove that at the time of Ex.A6-Sale deed, the family had sufficient fund to purchase the above said property. As already stated, Padma Bai had already purchased another property in D. No. 8 on 27.09.1964 under Ex.B2 and the above said property was sold by Padma Bai in favour of one Petchiammal on 27.3.1974 and then the suit A schedule property was purchased on 19.10.1974. On the side of the defendants have not produced any satisfactory evidence to prove that at the time of Ex.B2 sale deed, dated 27.09.1964, the defendants family have sufficient fund to purchase the above said property and the above said fund was utilized to purchase the above said property.

The learned counsel appearing for the respondents defendants submitted that the defendants have produced Ex.B14 to Ex.B22 revenue entries and the above said documents reveal that Chinnu Rao having several properties. The above said documents were produced through D.W.2 namely the Village Administrative Officer and examined the above said witness on the side of the defendants. But the above said witness clearly deposed that he was not aware of anything about the Chinnu Rao family and also deposed that not known whether the above said Chinnu Rao is father of defendants. Therefore as rightly discussed by in detail the trial Court, the defendants have not proved that the defendants father Chinnu Rao alone having all the above said properties. On the side of the defendants has not produced any revenue records available with them to prove that patta was given for all the above said properties only to the above said Chinnu Rao and tax were paid only by him. No satisfactory reasons has been assigned for non-production of any documents like patta, Kist receipts etc. That itself shows that the above said properties are not belonging to M.S. Chinnu Rao as contended by the defendants and rightly held by the trial Court.

A perusal of Ex.B1 Sale deed, dated 3.12.1932 itself reveal that both M.S. Chinnu Rao and his mother sold the ancestral house on 3.12.1932, for a sum of Rs. 800/- out of which Rs. 700/- for discharging the loan and only Rs. 100/-was received by vendors. That itself clearly shows that M.S. Chinnu Rao family was not having sufficient income to purchase the suit property and other properties. On the side of the defendants have not produced reliable documentary evidence to prove the income of the family out of tailoring business or income from landed properties. All the documents produced by the defendants not proved the above said excess income of the joint family to purchase the suit property as contended by the defendants.

Therefore from the above said discussion and on perusal of the entire oral and documentary evidence clearly proved that the entire property namely suit A schedule property originally belonged to Padma Bai as self acquired property and not purchased the above said property out of the joint family funds as contended by the respondents/defendants. The trial Court also discussed in detail about the oral and documentary evidence and rightly held that the suit property was originally purchased by Padma Bai as self acquired property and not purchased out of joint family nucleus., as contended by the defendants/respondents. Further as discussed earlier, the respondents/defendants have not challenged the above said finding of the trial Court. Therefore the entire portion of A schedule property is self acquired property of plaintiff''s mother Padma Bai and not purchased out of the joint family nucleus as contended by the respondents/defendants and also the respondents/defendants not challenged the finding regarding issue Nos. 1 to 5 since the respondents have not filed any appeal or cross appeal and therefore answered the points for consideration Nos. 1 to 3 accordingly in favour of the appellant/Plaintiff and against the respondents/defendants.

Point No. 4:

As already discussed, the suit property originally belong to Padma Bai as self acquired property. Admittedly, the above said Padma Bai (i.e.) the second wife of Chinnu Rao was died on 17.12.1980. To prove the same, on the side of the plaintiff has produced Ex.A11-Death Certificate. It shows that the above said Padma Bai died on 17.12.1980. It is not dispute that the legal heirs of Padma Bai only her husband, namely Chinnu Rao and son namely the appellant/plaintiff herein. Therefore as rightly claimed by the appellant/Plaintiff, after the death of his mother, namely Padma Bai, the appellant/plaintiff is entitled to half share as legal heir of Padma Bai.

The case of the appellant/plaintiff with regard to the remaining half share belong to Chinnu Rao is that the above said Chinnu Rao had earlier executed Ex.A13-Registered Will, dated 16.11.1987 in which he bequeathed his half share in favour of the plaintiff. Further, the above said Chinnu Rao subsequently executed Ex.A12-Release Deed in favour of Plaintiff on 6.10.1988 and accordingly, the plaintiff is entitled to remaining half share of Chinnu Rao also. But the trial Court has held that the above said Will and Release Deed are not proved since there is some discrepancies in the oral testimony of P.W.1 and P.W.2. The Trial Court has suspected the appellant/plaintiff may obtain the above said documents under influence and therefore rejected the above said documents as invalid and held that the Plaintiff is not entitled to half share of Chinnu Rao under Ex.A12 and Ex.A13 and on that ground the trial Court has dismissed the entire suit since the suit filed by the plaintiff is for the relief of declaration and not for partition and also the trial Court has rejected the prayer of partition in the counter claim filed by the defendants since the defendants have not paid proper court fee for partition and finally dismissed the suit.

A perusal of the oral testimony of P.W.1 reveals that he clearly deposed as if his father has executed a Will in respect of undivided half share in favour of appellant/plaintiff. Immediately after execution of the said Will, 9th defendant and Rajamony, sons of Chinnu Rao quarrelled with their father by saying that without the consent of them had executed the Will and therefore the father of the appellant/Plaintiff executed Ex.P12-Registered Release Deed in favour of appellant/plaintiff and hence the appellant/Plaintiff is entitled to the above said half share of the plaintiff''s father. Further, on the side of the appellant/Plaintiff examined P.W.2, one Seetharaman who is the attesting witness in the above said Will-Ex.P13 and Release Deed- Ed.P12. A perusal of the above said oral testimony of attesting witness namely P.W.2 reveals that he has clearly deposed about the execution, attestation, Registration and also deposed about the executors sound state of mind at the time of execution of the above said documents. On the side of the respondents/defendants have not specifically stated in the written statement that the signature found in Ex.A12 and Ex.A13 are not the signatures of Chinnu Rao. It is also not the case of the respondents/defendants that at the time of execution of the above said documents, Chinnu Rao was in unsound mind. The above said Chinnu Rao died long after the execution of documents. In the above said circumstances, a perusal of the oral testimony of P.W.1 and P.W.2 and the above said documents clearly shows that Chinnu Rao has executed the above documents voluntarily with sound state of mind as contended by the plaintiff. The trial Court had rejected the contention only on the ground that minor discrepancies in the deposition of P.W.1 and P.W.2 regarding the presence of P.W.1. Admittedly, both the witness have deposed after several years of execution of the documents and therefore the above said minor discrepancies between P.W.1 and P.W.2 cannot invalidate the above said documents. P.W.2 who is attesting witness in both Ex.P12 and Ex.P13 documents clearly deposed as Chinnu Rao signed in the documents in the presence of witnesses on his own free will and witness also seen the signature of testator. Therefore the appellant/Plaintiff proved the above said document Ex.P12 and Ex.P13 by adducing reliable oral and documentary evidence in accordance with provisions of law and as per law laid down by the Honourable Supreme Court.

The learned counsel appearing for the appellant/Plaintiff has relied on three decisions of Honourable Supreme Court and this Court reported in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others, , Selvi, Manickam and Darania Vs. Gomathy Ammal and one Division Bench Judgement of this Court in Appeal Suit No. 904 of 2005.

The law laid down by the Honourable Supreme Court in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others, in which in para No. 25, it reads as follows:

In the instant case, the propounders were called upon to show by satisfactory evidence that the Will signed by the testator that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own free will. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above....

In Selvi, Manickam and Darania Vs. Gomathy Ammal , this Court has held in para 22 as follows:

Therefore, from the close reading of the provision of Section of the Transfer of Property Act, 1882 and Section 68 of the Evidence Act as well as the decisions referred to above, it is made clear that where an attesting witness stated in his evidence that he has seen the signature of executant, itself is a sufficient proof and valid attestation. To put it in a nutshell, the role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document.

The law laid down in the unreported judgement of the Division Bench of this Court in A.S. No. 904 of 2005, in paragraph 38 and 39 reads as follows:

In the decision in Daulat Ram and Others Vs. Sodha and Others, Para No. 10 is relevant and the same is extracted below:

Will being a document has to be proved by primary evidence except where the court permits a document to be proved by hearing secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the poison who alleges it to be so "In the instant case, the plaintiff has not pleaded and proved that the testator was unsound mind and unable to understand at the time of execution of Will and further not proved that the above said thumb impression was forged by propounders of the Will and therefore the plaintiff has not proved that the above said document was forged one by reliable oral and documentary evidence so as to discharge her burden.

In the decision in Rama Bai Padmakar Patil v. Rukmini Bai Vishnu Vekhande (2003) 8 SCC 527), the relevant passage in para No. 8 is extracted as under:

A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to he suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, it has been held that it is the duty of the propounder of the Will to remove all the suspected features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed "In the present case, the Will was executed by Elumalai bequeathing the properties in favour of his two sons and admittedly, one daughter was issueless and also affixed her signature in the Will and the plaintiff alleged to have married as love marriage and living separately and also the plaintiff has admitted that Rajammal, one of the daughters of Elumalai brought up the plaintiff and also given the property of an extent of 1 acre and 20 cents to the plaintiff and therefore no property was given by testator viz., Elumalai to the plaintiff as rightly contended by the learned counsel for the defendants and therefore no suspicious circumstance arises in Ex.B2 Will.

As law laid down by the Honourable Supreme Court and this Court in the instant case, on the side of the plaint has examined the attesting witness and the above said witness has clearly deposed about the execution, attestation and also the sound state of mind of the arrestor and therefore the plaintiff has clearly proved the genuineness of the documents. On the side of the defendants, they have not pleaded and proved any specific suspicious circumstances about the documents. Therefore, the plaintiff has proved the above said documents by removing all the suspicious circumstances by examining the attesting witness. Therefore the above said Ex.P12 and Ex.P13 documents are proved as true, valid and genuine documents and accordingly the plaintiff is entitled to the remaining half share of Chinnu Rao, father of the appellant/plaintiff and answer the point No. 4 also in favour of the appellant/Plaintiff.

In view of the above said finding in Points No. 1 to 4, this Appeal Suit is to be allowed and the decree and judgement passed by the trial Court is to be set aside and the suit filed by the appellant/plaintiff is to be decreed as prayed for in the plaint. In the result, the Appeal Suit is allowed and the decree and judgement passed by the trial Court is set aside and the suit filed by the appellant/Plaintiff is decreed as prayed for in the plaint. With regard to mesne profits, the appellant/Plaintiff has to file separate petition under Order 20 Rule 12 of Civil Procedure Code. No costs.