V.U. Somasundaram vs U. Srinivasan and Others

N. Kumar, J.

This is defendant''s first appeal challenging the Judgment and Decree of the trial Court which has decreed the suit of the plaintiff for partition and separate possession of plaint ''A'' schedule property giving them 1/4th share.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is property bearing No. 32 New No. 60, Arunachalam Mudaliar Road, Shivajinagar, Bangalore measuring East to West 30 feet and North to South 40 feet together with old construction thereon.

The plaintiffs and defendant are children of late V.S. Umapathi Mudaliar and Smt. Rathnabai. The suit property exclusively belonged to their mother Rathnabai. She passed away leaving behind, her husband and children. Sri V.S. Umapathi Mudaliar also died on 15.9.1962 due to shock of death of his wife. The case of the plaintiff is, their parents died intestate. At the time of their death, defendant was approximately 17 years old. All the plaintiffs were younger to him and they were minors. Defendant took care of plaintiffs and maintained the family as Kartha. The family business of printing press was continued by him. The plaintiffs took up different job works in the press and helped the defendant. Thereafter, the plaintiffs got independent jobs and they started residing separately. The suit house is the ''Stridhan'' property of their mother and as such, all of them are entitled to equal share in the suit property. The suit property was in possession of a tenant. The printing press was being run in a rented premises. The landlord of the premises filed an ejectment suit against the defendant. After the prolonged trial, the defendant negotiated on behalf of the family members and by accepting Goodwill of Rs. 7 lakhs from the owner, delivered vacant possession of the premises in the year 1993.

The defendant assured that he would give share to the plaintiffs in the Goodwill amount but, he did not pay the same. The defendant alone had appropriated the entire Goodwill amount of Rs. 7 lakhs and on that premise, the plaintiffs allowed the defendant to continue to reside in the suit property. The defendant also filed ejectment suit against the tenant contending that he is the owner of the property, but, plaintiffs are entitled for share in the suit property. The plaintiffs demanded allotment of their share in the property from the defendant. He flatly refused to effect partition and a legal notice came to be issued calling upon the defendant to give their share in the property and shares in the Goodwill amount. Instead of effecting partition, the defendant tried to alienate the suit property. Therefore, the plaintiffs were constrained to file a suit for partition and separate possession of their 1/4th share each in all the schedule properties.

After receipt of summons, defendant entered appearance. He filed his written statement. He denied every allegation in the plaint, however, he admitted relationship between the parties and death of their parents. The defendant stated that he was aged 19 years when his father died. He took responsibility of maintaining the entire family including the education of the plaintiffs as all the plaintiffs were minors. The defendant alone was looking after the binding and printing business which was purely personal in nature. Father of the parties had a Press by name ''Youngmen Press'' but it was a job work and he had no printing machines. The alleged help and assistance offered by the plaintiffs in doing job work in the printing press were denied and there was no joint family business that was being run in a rented premises is totally denied. Further, receipt of Goodwill amount from the landlord on behalf of the entire joint family as joint family business that was being run in a rented premises was also totally denied. The suit is barred by time. Defendant is absolute owner of the suit property and even he has perfected his title by adverse possession. The plaintiffs are aware of the Will executed by their mother during her lifetime. Hence, they did not file any case. The defendant has filed a case claiming to be the absolute owner against the tenant Shamraj in 1975. Hence, there is assertion of hostile title by the defendant. The plaintiffs have suppressed all the material facts. It is also false that defendant declared that the plaintiffs did not claim any share in the mother''s property. In fact HRC 875/1975 was filed as the tenant had fallen in arrears of rent. After prolonged court proceedings and after filing ejectment suit in OS 5252/1986 the defendant got possession of the property. He has spent lakhs of rupees for the case as the legal battle went on for more than 30 years. The acquisition of the suit property by the mother of the parties is categorically admitted and further defendant undertook to produce the Will at relevant point of time. Khata has been made out in favour of the defendant as owner and not as Karta of the family. The plaintiffs have no semblance of right over the suit property. Defendant has constructed a building in the suit property investing huge amount. Share claimed by the plaintiffs is totally denied and hence sought for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed the following issues:

"1. Whether the plaintiffs prove that the defendant has agreed to give up his share in the Suit Schedule "A" property instead of sharing the amount of Rs. 7,00,000/- as goodwill received by him from the owner of the premises?

Whether the plaintiffs prove that they have got right of share in all the suit schedule properties?

Whether the defendant proves that Suit Schedule "A" property is the self acquired property of the defendant?

Whether the defendant proves that he alone was looking after the business of binding and printing and the father was having only a job work in "Young Men Press"?

Whether plaintiffs are entitled for relief claimed in the suit?

What order or decree?

Addl. Issue:

Whether the defendant proves that mother of the plaintiffs and the defendant had bequeathed the suit property under the Will as contended in para 12 of the written statement?"

The plaintiffs, in order to substantiate their case, examined the first plaintiff as P.W. 1 and got marked Ex. P1 to P14. On behalf of defendant, he was examined as D.W. 1 and he produced two documents which were marked Ex. D1 and D2.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record, held that plaintiffs have failed to prove that the defendant has agreed to give up his share in the suit schedule ''A'' property instead of sharing the amount of Rs. 7 lakhs received as Goodwill from the owner of the premises in which Printing Press was being run. But, held plaintiffs have proved that they have share in the suit schedule ''A'' property only. In view of the fact that both the parties admitted that the ''A'' schedule property is a Stridhan property of the mother, the question whether the defendant proves suit schedule ''A'' property is the self acquired property of the defendant would not arise for consideration. It also held that the defendant has proved that he alone was looking after the business of binding and printing and father was doing only a job work in ''Youngmen Press''. Defendant has failed to prove that his mother bequeathed the ''A'' schedule property under a Will as contended by him in para. 12 of the written statement. Ultimately, the suit of the plaintiffs was decreed in respect of ''A'' schedule property only and it was declared that each of the plaintiffs and defendant is entitled to 1/4th share in the ''A'' schedule property.

Aggrieved by the said Judgment of the trial Court, the defendant has preferred this regular appeal.

The learned counsel for the defendant assailing the impugned Judgment and Decree of the trial Court contends that though the defendant has not examined any attesting witness to the Will, as the said document is more than 30 years old, in view of Section 90 of the Evidence Act, the Will is presumed to have been executed by the Executant. The trial Court has not properly appreciated this aspect and committed a serious error in holding that Will is not proved. There was a reference in the written statement that the written ''Will'' will be produced in the course of evidence of D.W. . 1 and it was also confronted to P.W. 1 while he was cross-examined and therefore, the finding recorded by the trial Court drawing an adverse inference against the defendant that those aspects are ill-founded is erroneous. He further submits, on the basis of the Will, Khata of the property was transferred in his name. It is on the basis of Will, he filed an eviction petition as well as suit for recovery of rent and at no point of time, plaintiffs fought their right to contest those legal proceedings and claim for Rs. 7 lakhs being made out now. He further submitted, it is an undisputed fact that as on the date parents died, defendant was aged about 19 years. It is he who took care of the plaintiffs who were all minors. They were given food, education and their marriages were celebrated by him and all of them got employment. Therefore, it is too late in the day for them to contend that they also have equal right in the property as they kept quite for more than 50 years and they did not seek for partition though they were aware of the Will. These aspects are not appreciated by the Court below. He submits, a case for interference is made out by him.

Per contra, the learned counsel for the plaintiffs-respondents contended, that the Will is a fabricated document, the particulars of the Will were not furnished in the written statement, Khatha was not approved on the basis of the Will, suits were not filed claiming title to the property under the Will and the Will is not proved by examining any attesting witnesses. The trial Court, on proper appreciation of evidence on record has rightly held, Will is a fabricated document and it is not proved. In these circumstances, no case for interference is made out.

In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is:

"Whether the finding of the trial Court that the Will said to have been executed by the defendant''s mother on 19.8.1958 is not proved and thus, the defendant did not become the absolute owner of the ''A'' schedule property calls for interference"

The relationship between the parties is not in dispute. The mother died in the year 1961 and the father died little thereafter i.e. in 1962. According to the plaintiffs, the defendant was aged 17 years but, according to the defendant, he was aged 19 years. But the plaintiffs were all minors as on the date of death of their parents is not in dispute. It is also on record that the father of the parties was carrying on binding and printing work. The defendant, after the death of his father carried on binding and printing work. In fact, he was doing binding work even much earlier. As his father was paralised, he was carrying on with the business. It was carried on in a rented premises which was at Avenue Road a prominent locality in the city of Bengaluru. When the landlord initiated eviction proceedings, the tenancy was surrendered. The case of the plaintiffs is, it was for consideration of Rs. 7 lakhs. They had share in the said amount. It was agreed between the parties that the defendant should enjoy the benefit of the entire seven lakhs received subject to the condition, he gave up his claim in ''A'' schedule property. The trial Court, on appreciation of evidence on record has held, plaintiffs are not able to establish the said case. Therefore, their plea in this regard was not accepted.

It is not in dispute that ''A'' schedule property stood in the name of the mother of the parties which is a ''Stridhan'' property. After her death which took place in the year 1961, under Section 15 of the Hindu Succession Act, 1956, plaintiffs and defendants being Class-I heirs are entitled to equal share i.e. each one of them is entitled to 1/4th share. As on the date of her death, plaintiffs were minors. The evidence on record shows, it is the defendant who took care of them. However, as the schedule property was in the occupation of a tenant, they were all living separately. The defendant had initiated proceedings against the tenant for recovery of possession on behalf of all family members. He has also improved the property. In order to deprive the plaintiffs of a natural succession, defendant has set up a Will of his mother which is dated 19.8.1958. This document is not a registered document. It is true that Will is not a document which should be registered compulsorily. It is typed on a white paper. After the death of their parents, Khatha of the property has been made out in the name of defendant is his case. It is his case that Khatha was made out in his name as exclusive owner on the basis of the Will. To substantiate this Will, nothing is brought on record. Khatha Certificate is produced in the case is dated 3.10.2008 which is marked as Ex. P7. The said document does not disclose Khatha was made out in his name on the basis of Will. Mother died in the year 1961, now the Khatha is of the year 2008. In whose name Khatha stood for the interregnum period is not forthcoming. If the Khatha is made out in the name of defendant after the death of his mother on the basis of Will, the question of making out Khatha as per Ex. P7 on 3.10.2008 in the name of defendant would not arise. From the above, we have to record a finding on Ex. P8 which is dated 24.7.2005 whether the Khatha is made out in the name of all the family members. The records produced in the case do not disclose what was the position between 1961-2008.

That apart, interestingly, the main defence taken by the defendant in his written statement is that he has perfected his title by adverse possession. A person claiming title under a Will cannot put forth a plea of adverse possession. Plea of adverse possession is put forth on the premise that he had initiated eviction proceedings by filing a suit against the tenant for recovery of possession. But, unfortunately, the plea of adverse possession itself is not sufficient to deny a co-sharer a right in the property which belonged to their co-parceners. There is no plea of ouster which is a condition precedent, for considering the plea of adverse possession. Admittedly, no attesting witness is examined to prove the Will. Section 90 of the Evidence Act, 1872 which deals with the presumption of a document of 30 years old, is available to a party only where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. It is in this context, the trial Court has rightly observed, though execution of Will is mentioned in the written statement but, defendant did not furnish particulars of the will, on the contrary, he categorically stated in the written statement that, he will produce the Will at the relevant point of time. If the defendant is relying on the Will to claim title under the Will, not only he had a duty to furnish the particulars of the Will in the written statement but also should have atleast produced a Xerox copy of the Will along with the written statement. It was not done. The Will was produced in the course of his evidence. The Will is written on a white paper. The defendant himself was unable to identify the signature of his mother. There is no admitted signature of the mother on record to find out whether it is the signature of the mother. It is in this background when no attesting witnesses were examined to prove the Will and on the date so called the Will was executed, the plaintiffs were all minors. Thus, the trial Court has rightly held Will is not proved. The said finding recorded by the trial Court is based on the legal evidence which cannot be found fault with.

For the aforesaid reasons, the Will set up by the defendant is not proved and as such, no rights flow to him under the Will. Since the ''A'' schedule property is Stridhan property of his mother, as per Section 15 of Hindu Succession Act, 1956, all of them being Class-I heirs, are entitled to equal share in the said property. Therefore, decree passed by the trial Court holding that plaintiffs and defendant are entitled to 1/4th share in the ''A'' schedule property is in accordance with law and does not suffer from any legal infirmity which calls for our interference.

We do not see any merit in the appeal. Accordingly, the appeal is dismissed.