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G.Chandrika.. Plaintiff in TOS 2/94 and v. G.Mathipal - T.O.S.No.2 of 1994 and C.S.No.451 of 1998  RD-TN 428 (3 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
T.O.S.No.2 of 1994 and C.S.No.451 of 1998
G.Chandrika .. Plaintiff in TOS 2/94 and Defendant in CS 451/98 vs
2. G.Ausaithambi .. Defendants in TOS 2/94 and Plaintiffs in CS 451/98 For Plaintiff in
TOS and defendant
in CS : Mr.R.Parthasarathy
For 1st Defendant
in TOS and 1st
Plaintiff in CS : Mr.S.Sadasharam
For 2nd defendant
in TOS and 2nd
defendant in CS : Mr.S.Murugesan
T.O.S.No.2 of 1994
This suit has been filed for issuance of letters of administration in respect of the Last Will and Testament of Ganapathy Nadar dated 18.5.1991.
2. C.S.No.451 of 1998 This suit has been filed for partition and separate possession of the plaintiffs' 8/9th share in the plaint Schedule A, B and C properties, for appointment of an Advocate Commissioner to divide the suit properties more fully described in Schedules A and B by metes and bounds and to submit a report as to mesne profits, for damages for use and use and occupation by the defendants from the date of plaint and for costs.
3. The plaint averments in TOS 2/94 are as follows: One Ganapathy Nadar died on 24th October, 1991 at No.5, Sripuram Second Street, Royapettah, Madras-14. At the time of his demise, he left the properties furnished in the affidavit of assets annexed to the plaint. He left behind him his only daughter Smt.G.Chandrika, the plaintiff herein, and his two sons G.Mathipal and G.Ausai Thambi, the defendants herein. During his life, the said Ganapathy Nadar had drawn and executed his Last Will and Testament on 18.5.1991 out of his free will and volition. Under the Will, the testator bequeathed his properties and assets described in the affidavit of assets. The plaintiff and her husband Raja Mohan shall both during their life time have the right to enjoy the entire house and ground bearing door No.5, Sripuram II Street, Royapettah, Madras 14. The testator's grandson Raja Raman and granddaughter Rajalakshmi born to the plaintiff, shall have the absolute right to hold and enjoy with the power of alienation the said property. The testator's sons, viz. the defendants shall in equal shares hold and enjoy without any power of alienation the house and ground bearing door No.4, Anthony Street, Royapettah, Madras 14 , and also the house and ground bearing door No.34, Big Street, Triplicane, Madras. After the life time of the defendants, their respective natural sons and daughters born to them shall have the absolute right to enjoy their respective shares in the said properties. In case any of the defendants died without any children of his own, his respective share assigned for his enjoyment without any power of alienation shall become vested absolutely in the aforesaid grandchildren of Ganapathy Nadar born to his daughter, the plaintiff herein. The plaintiff shall have the right to manage and administer as such with the aid of his son-in-law all his concerns viz. 1) Santha Publishers; 2) Vasan Publishers; 3) Vasantha Agencies; 4) Santha Art Printers and Kandupidi Magazine. The deceased appointed none as executor. Hence, the plaintiff has filed this suit for grant of letters of administration.
4. In the written statement filed by the second defendant, it is averred as follows:
The averments made in paragraphs I and Ii of the plaint are substantially correct, and as such, they are admitted by the second defendant. All the estates of Ganapathy Nadar including movables such as large quantity of printed books kept for sale, Maruthi Van, Computer, printing press machines and accessories, video deck, T.Vs., three wheeler and two wheelers, jewellery, etc., have not been properly disclosed in the affidavit of assets. As a coparcener, the second defendant has been residing along with his late father K.Ganapathy Nadar at No.5 , Sripuram Second Street, Royapettah, Madras 14, ever since his father occupied the said house and continues to reside in the same house as a coparcener even after the death of his father. It was the plaintiff who was living separately in her matrimonial home. she came along with her husband and two children just five years before the death of late K.Ganapathy Nadar to reside at No.5, Sripuram Second Street, Royapettah, Madras 14 on the pretext that her husband was not able to secure a rented house. The Will dated 18.5.91 contains interpolations and corrections which have not been attested by the testator nor are they explained in the affidavit of the attesting witness filed in OP No.349 of 1992. It is seen from the said Will dated 18.5.91, the attesting witnesses have attested the Will on different dates, but it is falsely affirmed in the said affidavit of the attesting witness that both of them attested the will simultaneously in the presence of the testator on 18.5.91 itself. The plaintiff and her husband Rajmohan, who are now having custody of all the documents and accounts of the testator, have not disclosed as to how and from whom they came into the possession of the original of the will dated 18.5.91. The plaintiff has to prove the will dated 18.5.91 in a solemn form. His late father, who was aged about 84 years with diagnosed cancer was suffering from poor eye sight and hearing disability. His father loved his wife Chellammal who was his companion in the old age. The mother of the second defendant, Chellammal died on 1.5.91. It had caused great mental agony and shock to Ganapathy Nadar. He was unable to bear the sudden loss of Chellammal. As such he could not have executed the will in a sound state of mind, out of his own volition and free will unless he was unduly influenced by the plaintiff and her husband. K.Ganapathy Nadar had executed an earlier will dated 2.3.89. A reading of the recitals in the will dated 2.3.89 would show that Ganapathy Nadar had obtained the consent of the 2nd defendant and his brother the 1st defendant to gift away to the plaintiff a portion of the joint family residential house bearing door No.5, Sripuram Second Street, Royapettah, Madras 14. There is no mention in the will dated 18.5.91 as to why and how he came to execute the said will without consulting the defendants. His father who was very affectionate towards him and the grandson Hemanth Ganesh born to the 2nd defendant, had no reason to deprive them of their corparcenary rights in the residential family house at No.5, Sripuram 2nd Street, Royapettah, Madras. All the facts and circumstances would go to show that the will dated 18.5.91 had not been executed out of the free will and volition of the testator. His father, who died undivided as the Kartha of the joint family had no right to bequeath the coparcenary property. Even assuming that the will dated 18.5.91 is true, it could have been drafted and executed without the testator knowing and being aware of the contents of the will dated 18.5.91. The value of the whole estate including the movables stated above has not been properly included in order to avoid paying proper court fees. Hence, the suit may be dismissed with costs.
5. The plaint averments in C.S.No.451 of 1998 are as follows: The plaintiffs are the sons of late Ganapathy Nadar and the defendant is his daughter. Ganapathy Nadar along with his three brothers, namely, Nataraja Nadar, Lakshmana Nadar and Mohanananda Nadar constituted Hindu undivided family as coparceners. Nataraja Nadar got himself divided from the Hindu undivided family by executing a Release Deed, dated 28.1.1947. The plaintiffs' father got himself divided from his other two brothers by the partition deed, dated 7.5.1952. Ganapathy Nadar got to his share the house property bearing D.No.28, Kalingarayan Street, Old Washermenpet, Chennai-21. The plaintiffs' father was employed as a Physical Education Teacher and got retired in the year 1966 and before his retirement he started a book publishing business. He utilised the rental income from the said house property for the said business purpose. On his retirement, Ganapathy Nadar was getting only a pension of Rs.250/- p.m. and the retirement benefits of Rs.50 00/-, which was also put into his business purposes. The said business was developed. The defendant started living separately with her husband. The plaintiffs and their father sold the said house property under a sale deed, dated 7.2.1973 and the sale proceeds were utilised and invested in the publishing business under various names and styles. From and out of the income of the joint family business, namely, publishing , printing, sales, etc. the plaintiffs and their father purchased a house property bearing D.No.5, Sripuram Second Street, Royapettah, Chennai-14 and the same was repaired, renovated and modernized by the plaintiffs and their father out of the joint family income obtained from the joint family business. The property at No.28, Kalingarayan Street had been mortgaged in the years 1960, 1962 and 1970 by the plaintiffs and their father for business purpose and then it was sold. The property at No.5, Sripuram 2nd street was not the self acquired property of late Ganapathy Nadar, but is is only one of the hindu undivided family properties. Ganapathy Nadar purchased another house property bearing D.No.4, Anthony Street, Royapettah, chennai-14 . Besides these two joint family properties, there was no other immovable property excepting the joint family business of printing and publishing. Ganapathy Nadar had no right to deal with the above said properties individually and exclusively. The plaintiffs' father had only 1/3rd share being one of the three coparceners. The plaintiffs' maternal uncle by name Gopal had been assisting late Ganapathy Nadar in the joint family business for more than 20 years. The defendant, from the date of her entrance to the "A" Schedule property, started to function in a scheming and clandestine manner with a motive to misappropriate and grab the above said property which is now worth more than Rs.45 lakhs. The plaintiffs's father died on 24.10.1991 in the "A" Schedule property. They have purchased a lot of machineries, vehicles, etc. for the business. The defendant, on the strength of the Will, dated 18.5.1991 fraudulently brought into existence by the defendant and her husband, filed an application before this court in O.P. No.349 of 1992 for issue of letters of Administration and the plaintiffs filed their caveates and contesting the claim of the defendant. The said O.P. was converted into TOS.2 of 1994, which is pending. The suit properties are totally worth about Rs.70,00,000/- and the defendants have got no right or entitlement to interfere into the same. The defendant has got only 1/9 share in the entire suit property. Ganapathy Nadar, during his life time, had been submitting accounts to the Income Tax Department giving out the particulars of HUF consisting of Ganapathy Nadar and the plaintiffs and the properties of HUF have been assessed. The defendant has got no right to reside in the HUF dwelling house so long as the Rajmohan, the husband, is alive. The defendant without any right to be in the suit properties is mismanaging the joint family business and has been misappropriating the properties of the joint family. The second plaintiff and his wife and their child are residing in the A schedule property with great difficulties facing every day the mischievous activities of the defendant. Hence, the suit has got to be decreed as prayed for in the plaint.
6. The defendant has filed a written statement with the following averments:
The claim of the plaintiffs for partition and separate possession of their alleged 8/9 share in the suit properties is unsustainable. The plaintiffs are the own brothers of the defendant. Ganapathy Nadar died on 24.10.1991. Ganapathy Nadar joined in 1933 in the teachers Training Institute at Tanjore and he retired in the year 1966. Even before his retirement, he started a business in the year 1955. Ever since the date of establishment of the same by him till his death, he only singly and lonely conducted and developed and enlarged his business. He never shared his business to his sons, namely, the plaintiffs 1 and 2 herein. The plaintiffs never helped their father. The house and ground bearing D.No.28, Kalingaraya Street, Old Washermenpet, Chenna1 -21 was possessed by Ganapathy Nadar as his own. Prior to his becoming the owner of the same his mother Chinnammai and her three sisters were the original owners. They gifted the same to the Ganapathy Nadar. However, in order to get his title after the said gift deed, he obtained Release deed from one Gurusamy and Govindasamy the sons of Chinnammai's sister Vaduvammal. The said property yielded no income at all. It needed heavy repairs. Ganapathy Nadar hypothecated the same on 22.12.1960 and obtained Rs.4,500/- and he did some repair works. Again he encumbered it and with the aid of the said loan, he secured the release from the hands of the said Gurusamy and Govindasamy. Ganapathy Nadar mortgaged the said property and he utilised the loan amount for the upkeep of his children. The said property did not yield any considerable income so as to enable the Ganapathy Nadar to meet his family needs. Hence, he sold the same on 7.2.1973 for a sale price of Rs.43,000/-. The Ganapathy Nadar in the zeal to secure a job for his eldest son ran, at the inducement of one P.M.Rajamani, who promised him to secure the job to his son, paid him a lot, but the said Rajamani swallowed it. The Ganapathy Nadar was able to get back a few hundreds that too after the institution of the suit in O.S.No.2878 of 1973. The first son got job in the year 1973. He spent heavy expenditure for the said purpose. Ganapathy Nadar spent most part of the sale proceeds to the wedlock of his daughter and the first plaintiff and he paid his younger son Rs.14000/-. Ganapathy Nadar kept his entire business quite at a distance without being mingled and worn out in the wrangles of day today affairs of his family and that of his boys. The business of the Ganapathy Nadar did not yield substantial income. Passing many sleepless nights with hard work he augmented and doubled up the income. By the reason of his income being so augmented of the said business, he acquired the capability of acquiring the estates of his own. In the year 1985, the said Ganapathy Nadar celebrated the Pearl Jubilee celebration of his business Shantha Publishers. Ganapathy Nadar purchased a house at D.No.5, Sripuram II street, Royapettah, Madras by way of obtaining a loan of Rs.50000/- from this defendant and with the same, he added his own money of Rs.400000/- and he did not receive a pie from his son to acquire the said property. Hence, the plaintiffs have no interest or no claim over the same. Ganapathy Nadar was the absolute owner of the house and ground bearing D.No.4, Anthony Street, Royapettah, Madras-14. It was the said Ganapathy Nadar, who himself negotiated to purchase the house and ground bearing Door No.34, Big Street, Triplicane, Madras and he parted his own money as advance towards the purchase of it. Ganapathy Nadar laid a suit in C.S.No.1307 of 1988 on the file of this court to obtain a decree for specific performance in order to attain the said property. During his life time, the said Ganapathy Nadar reposed much confidence in his daughter, the defendant herein. The Ganapathy Nadar voluntarily out of his free will and volition executed his last Will and testament on 1 8.5.1991. In the said last Will and Testament, the said Ganapathy Nadar bequeathed his properties and assets in the manner as mentioned in the written statement. The defendant after the demise of the Ganapathy Nadar in pursuance and by virtue of the aforesaid Will entered into possession of his estate and started administering the same along with her husband Rajmohan. The defendant filed a petition in O.P.No.34 9 of 1992 on the file of this Court seeking the grant of Letters of Administration with the Will annexed and the same was converted as TOS No.2 of 1994. The plaintiffs never demanded any of their alleged shares during the life time of her father. It is correct that the said Ganapathy Nadar had three brothers, but it is not correct that they have constituted undivided family as coparceners. Even before their respective marriages, they separated each other. The defendant's father came to Madras before his marriage to study the physical instructor course in IMCA College. The allegation that the plaintiffs by their birth into Hindu undivided family became coparceners in the said Hindu undivided family is incorrect. The defendant denied that the said Ganapathy Nadar utilised the rental income from the property bearing D.No.28, Kalingarayan St., Old Washermenpet, Chennai-21. It yielded no income. The allegation that the publishing business slowly year to year raising funds from and out of the above said Hindu undivided property is false. The Ganapathy Nadar and the plaintiff constituted separate Hindu undivided family from 1952 when the partition of joint family property was effected is false. It is incorrect to say that from out of the income from the joint family business namely publishing, printing, etc. the house property at No.5,Sripuram II Street was purchased. Ganapathy Nadar alone acquired it out of his own income. He did not invest the sale proceeds in his business as the plaintiffs' surmised. The said property was a self acquired property of Ganapathy Nadar. It was the said Ganapathy Nadar, who brought up one Gopal. The said Gopal misbehaved and he misappropriated the funds, thereby he was discarded by Ganapathy Nadar. It is quite mischievous for the plaintiff to say that this defendant started function in a scheming and clandestine manner with a motive to misappropriate and grab the above property. The plaintiff had nothing to do in the business. The defendant and her husband Rajmohan never played fraud to bring the Will of late Ganapathy Nadar as blabbed by the plaintiffs. Ganapathy Nadar himself voluntarily and freely executed the said Will. The Ganapathy Nadar held all the properties shown in the plaint during his life time as his own and absolute. The second defendant adopted a female child born to the sister of his wife notwithstanding the fact that the said Ganapathy Nadar forbade him to do so. The said Ganapathy Nadar did not cherish him to adopt. The second plaintiff never heeded to his father's request. Ganapathy Nadar knew that the said son's salary was meagre and he gave funds for the education of the wife of the second plaintiff as to enable her to obtain Master of Science. When her second son's wife was later inflicted with mental aberration, Ganapathy Nadar expanded his own money for her treatment. When she gave birth to a mentally retarded child, it was Ganapathy Nadar who took pains to treat the child. The second plaintiff once at the instigation of his father-in-law assaulted and pulled out of his own father, the said Ganapathy Nadar, who being frail and feeble, fell flat and got injured at his leg. He fractured his leg as a result of which, the said Ganapathy Nadar was confined to bed. For the same, Ganapathy Nadar gave a police complaint against the second plaintiff. After marriage, the defendant started living with her own family and used to visit her father often times taking much interest and care in his health and comfort. In fact Ganapathy Nadar invited the defendant and her husband in the year 1980 to come home and stay with him so that he would have solace to his heart at the look of his daughter, namely the defendant herein particularly when his mind got inflicted with sorrows because of his erring and misbehaving sons. Ganapathy Nadar executed a Will on 2.3.1989 wherein he declared that his property comprising in the said Will was own and self earned. The plaintiffs knew well that what all they mentioned in the schedules of the plaint were all self earned properties of their father. The plaintiffs are not approaching this Court with bonafide claim. Hence, the suit is liable to be dismissed with costs.
7. On the above pleadings by the respective sides, the following issues were framed in C.S.No.451 of 1998 and TOS No.2 of 1994: 1. Whether the Will dated 18.5.1991 is true, valid and binding on the parties?
2. Whether the plaintiff in T.O.S.No.2/94 is entitled to get letters of administration?
3. Whether the properties shown in the schedule in C.S.451/98 are ancestral properties or properties belonging to HUF?
4. Whether the plaintiffs in the suit are entitled to get any share and if so, to what share?
5. To what relief?
8. ISSUES 1 TO 5 IN BOTH SUITS: In these proceedings, common evidence in T.O.S.2 of 1994 has been recorded. The parties hereinafter will be referred to as per the cause title in TOS 2/94 viz. Plaintiff and defendants.
9. The plaintiff has filed the suit for grant of letters of administration to her alleging that her father Ganapathy Nadar in a sound and disposing state of mind executed a Will on 18.5.1991 in the presence of two attesting witnesses, as found therein, while the defendants have filed C.S.451 of 1998 for partition and separate possession of 8/9th share in the immovable properties described in the Schedules 'A', 'B' and 'C', alleging that they are joint family properties, and they are entitled to the said division of the properties.
10. On the side of the plaintiff P.Ws.1 to 4 were examined, and Exs.P1 to P34 were marked. On the side of the defendants, D.W.1 was examined, and Exs.D1 to D5 were marked.
11. Admitted facts can briefly be stated as follows: The plaintiff is the daughter and the defendants 1 and 2 are the sons of Ganapathy Nadar. The plaintiff was born in 1945, while the first defendant was born in 1947 and the second defendant was born in 195 0. The plaintiff was given in marriage to P.W.3 Rajmohan on 16.4.197 1, and after their marriage, except for a few years, the plaintiff and her husband were residing at Door No.5, Sripuram II Street, Royapettah, Madras. The first defendant got married in the year 1974. Even before his marriage, he was employed as a clerk in Indian Bank and joined service on 20th March, 1972. At the time of his marriage, his wife, a graduate was also employed in A.G. office in Bangalore. Though she was transferred to Madras, the first defendant was transferred to Calcutta in 1977. The first defendant's wife stayed with the parents-in-law for a short while and joined her husband at Calcutta in 1 979. The first defendant was transferred from Calcutta to Bangalore in 1982 and was there till 1987, when he was transferred to Madras. After a stay for a period of 8 months, the first defendant and his family shifted to the quarters allotted to them in Jagadambal Colony. The first defendant had no issues of his wedlock, and he has adopted his wife's sister's daughter in the year 1991. The second defendant Asaithambi got married in the year 1980. Though he was living with his parents all along, subsequent to his marriage he was living with his family in a portion of the building situate in Door No.28, Kalingarayan Street, Old Washermanpet, Madras having separate mess. A male was born to him in the year 1989 and named as Hemanth Ganesh. The said Ganapathy Nadar started his career as a Physical Instructor in a School at Chengalpet in the year 1933, and he retired in the year 1966 . He had three brothers viz. Nataraja Nadar, Lakshmana Nadar and Mohanananda Nadar and two sisters viz. Gnanambal and Krishnaveni. An immovable property which was a tiled house situated in Door No.28, Kalingarayan Street, Old Washermanpet, Madras originally belonged to Unnamalai Ammal and Alamelu Ammal, who settled the same in favour of Chinnammal, the daughter of Alamelu Ammal. Chinnammal had four sons including Ganapathy Nadar. Ganapathy Nadar and his brothers entered into a partition deed on 9.5.52 under Ex.D3, wherein the said property was allotted to Ganapathy Nadar. The sons of sister of Chinnammal executed two registered deeds of release dated 24.7.61 and 19.5.64 marked as Exs.P6 and P7 respectively, and they were obtained by way of abundant caution in order to avoid any litigation. Under Exs.P2 and P3, the said Ganapathy Nadar with his two sons Mathipal and Asaithambi who are the defendants herein executed two mortgage deeds on 22.12.60 and on 11.6.62 respectively in respect of the said immovable property. Again under Ex.P5, the father and two sons executed another deed of mortgage on 25.1.70 in favour of Hindu Saswatha Nidhi in respect of the said property. On 17.2.1973, the said Ganapathy Nadar with his two sons sold the aforesaid immovable property under a registered sale deed as found under Ex.D8. In or around 1975, Ganapathy Nadar started Vasantha Agencies in order to sell the books published by him, and following the same in the year 1976, he started Vasan Publications and Santha Art Printers in the year 1985 and also published a magazine by name "Kandupidi" from the year 1978. The wife of Ganapathy Nadar viz. Chellammal died on 1.5.1991. The said Ganapathy Nadar died on 24.10.1991. At the time of his death, he owned only two of the aforesaid businesses viz. Santha Publishers and Vasantha Agencies. The house property situate in Door No.5, Sripuram II Street, Royapettah, Madras described in the schedule was purchased on 10.4.86 under Ex.P9 sale deed. Another house property situate in Door No.4, Anthony Street, Royapettah, Madras was purchased under Ex.P11 registered sale deed dated 20.4.1990. The said Ganapathy Nadar has also entered into a sale agreement for the purchase of a property situate in Door No.34, Big Street, Triplicane, Madras under Ex.P27 dated 1.1.1985. Ganapathy Nadar executed a registered Will on 2.3.1989, registration copy of which is marked as Ex.D1, and the original is in the custody of the plaintiff.
12. Arguing for the plaintiff, the learned counsel would submit that the plaintiff filed the O.P. which was subsequently converted into a testamentary suit on the objections raised by the defendants, seeking grant of letters of administration; that Ganapathy Nadar father of the parties executed Ex.P1 Will on 18.5.1991 in a sound and disposing state of mind in the presence of two witnesses; that in order to prove the testament, the plaintiff has examined both the attesting witnesses as P.Ws.2 and 4 who have clearly spoken to the fact of execution by the testator and their attestation; that the first attesting witness viz. P.W.2 had spoken about the execution of the testament by the testator in his presence and his attestation in the presence of the testator, while the second attesting witness examined as P.W.4 had spoken to the fact of acknowledgement by the testator as to the execution and attestation; and that he has also subscribed his signature as attesting witness in the presence of the testator; that he has also further spoken to the fact of registration where he was one of the identifying witnesses; that from the evidence of P.W.2, it would be clear that he was very close to Ganapathy Nadar not only as his Doctor, but also as his friend, who was well acquainted with all the family maters; that it is pertinent to note that P.W.2 is aged 67, who had a close association with the family for more than four decades; that there is nothing to suggest that he has come forward to give untrue or false evidence; that the defendants are unable to show any reason or circumstance to disbelieve or reject the testimony of P.W.2; that equally so is the evidence of P.W.4 Chidambaram, the other attesting witness; that from the testimony of P.W.4, it would be clear that Ganapathy Nadar has categorically acknowledged about the execution of the Will by him and the attestation by the first attesting witness, and only thereafter, PW4 has subscribed his signature as attesting witness; that it is also clear from the evidence of PW4 that he accompanied the testator to the Sub Registrar's Office and has identified him, as one of the witnesses at the time of registration; that according to PW2, Ganapathy Nadar executed Ex.P1 will in his presence and in a sound and disposing state of mind; that it is not the evidence of PW2 that the second attesting witness attested the document at that time, but according to PW4, he attested the document only after the acknowledgement made by Ganapathy Nadar as to his execution and attestation by the first witness; that the evidence adduced by the propounder through PWs 2 and 4 would satisfy the legal requirements in respect of the necessary proof as to the execution and attestation of the document, and thus from their evidence, it would be clear that Ganapathy Nadar in a sound and disposing state of mind ha s executed the document; that apart from that, PW2 was a close associate of Ganapathy Nadar, who was his family doctor for a period of 40 years and who could well speak about the mental and physical condition of the testator; that there were many circumstances attending to the truth and genuineness of Ex.P1 testament; that admittedly, Ganapathy Nadar executed Ex.D1 Will on 7.3.89; that at the time of the execution of Ex.D1, his wife Chellammal was alive and the property situate in Door No.4, Anthony Street, Royapettah, Madras was not purchased; that the defendants have well admitted the execution of Ex.D1 and the bequest made therein; that even during 1989, Ganapathy Nadar has executed Ex.D1 Will bequeathing the then available properties to his children, and there arose a necessity to revoke the earlier Will under Ex.D1 and wrote a subsequent will under Ex.P1 on 18.5.1991, in view of the change in circumstance; that one of the main circumstances was the purchase of the property situate in Door No.4, Anthony Street, Madras on 20.4.1990; that the testator has clearly referred to his earlier Will dated 7.3.89 in Ex.P1 testament, and the same was executed during the life time of his wife; that it is also clearly recited in the document that the attitude and conduct of his sons and their family members in the recent past compelled him to execute another Will as found under Ex.P1 and in order to avoid the future litigations; that D.W.1 the first defendant has admitted that he had no issues out of his wedlock; that he had adopted his wife's sister's daughter in the year 1991; that it was also true that his father objected to and resented the said adoption; that PW1 has deposed that the second defendant Asaithambi and his wife were torturing her father Ganapathy Nadar, and as he could not tolerate the same, he has given a police complaint on 29.7.1991 seeking police protection; that this would be indicative of the fact that the second defendant and his wife, though they were residing in a part of the building, were exerting trouble to Ganapathy Nadar at his 80's, and thus, there were compelling circumstance for Ganapathy Nadar to revoke his earlier will and to execute Ex.P1 testament; that a reading of Ex.P1 Will would clearly indicate that he has not excluded any one of his children, but had made reasonable disposition of the properties; that it is well admitted by the first defendant that the plaintiff and her husband PW3 Rajmohan rendered their maximum help in the publication and printing business of Ganapathy Nadar; that apart from that, PW3 has also rendered financial assistance to Ganapathy Nadar when he was in financial strain, which is evidenced by a letter written by Ganapathy Nadar to PW3 under Ex.P25 dated 4.2.1982; that there were occasions as evidenced by documents that PW1 has also parted with her money by way of loan to Ganapathy Nadar during the course of business, apart from the assistance for the purchase of the immovable property situate in Door No.5 Sreepuram II Street, and under such circumstances Ganapathy Nadar had a special reason, apart from his natural affection for his daughter, and by way of gratitude to his son-in-law for the help rendered by him, he has stated that he has given life interest to both of them in the first property, while the reminder is given to their children, and all the businesses were given to them, since they were associated with Ganapathy Nadar all along and equally has created a life estate in favour of his two sons in the immovable property situate in Door No.4, Anthony Street, Royapettah, while he has given the reminder to the natural born children and if they had no natural born children, the property should come back to the children of the plaintiff, and thus the intention of the testator was clear that he did not desire to give any property to his sons exclusively in view of the agitational attitude and conduct towards the testator, and thus, there was nothing unnatural or unreasonable in the disposition, and the defendants are unable to show any suspicious circumstance attending over Ex.P1 Will, and hence, the plaintiff has proved the same in accordance with law and the letters of administration has got to be granted. In answer to the claim made by the defendants in their suit for partition, the learned counsel would submit that all the properties in respect of which partition was sought for were separate and exclusive properties of Ganapathy Nadar; that he joined teaching profession in the year 1933, and he retired in the year 1966; that even before his retirement, he started his publication business in the name and style of Santha Publishers; that out of his income, he developed his business and started Vasantha Book Centre, Santha Printers, Vasantha Agencies and published Kandupidi Magazine; that the immovable property situate in door No.28, Kalingarayan Street, Old Washermanpet, Madras was only a small tiled house; that the same originally belonged to Unnamalai Ammal and Alamelu Ammal, who settled the same on Chinnammal, the mother of Ganapathy Nadar; that Ganapathy Nadar had three brothers; that all the three brothers relinquished their shares in favour of Ganapathy Nadar, and thus the said property has come to the hands of Ganapathy Nadar through his mother Chinnammal, and hence, no question of characterising the property as a coparcenary property or the property of the joint family would arise; that the said property was not yielding any income at all; that the said property was mortgaged thrice under Exs.P2, P3 and P5; that a reading of the said documents would clearly reveal that Ganapathy Nadar was in business needs, and debts were also payable by him at that juncture; that the said property was also sold under Ex.P8 for a sum of Rs.43,000/-; that a very reading of the sale deed would reveal that the amount was to be utilised to discharge the debts that he had already incurred towards the wedlock of his daughter and for the family needs, and thus, nothing was left in the hands of Ganapathy Nadar, which would be utilised for any of his businesses; that it is true that the above said mortgage deeds and the sale deeds were executed by Ganapathy Nadar along with his two sons in order to avoid unnecessary litigation, and to satisfy the purchasers, his sons were also added as parties to the document, and thus, there were no nucleus; that apart from that, there was no income, much less sufficient income to start any business or for purchase of any properties in question during the relevant period; that the first defendant was married in the year 1974, while the second defendant was married in 1980; that it is pertinent to note that Ganapathy Nadar commenced his business even in the year 1958; that he was carrying on his business; that the first defendant got his employment in the year 1972 as a clerk in Indian Bank; that he was transferred to Calcutta in the year 1977, and his wife also joined with him at Calcutta in 1979; that from Calcutta he was transferred to Bangalore, where he served from 1982 to 1987; that in 1987, on his transfer he came to Madras, and he was staying with his parents at No.5, Sreepuram II Street for a short while; that again he occupied a quarters allotted to him, and thus, there was no occasion for him to either be in Madras or contribute anything either to the business or for the purchase of the properties; that it is pertinent to note that he himself has admitted that he is not having any proof in that regard; that so far as the second son viz. the second defendant is concerned, he remained jobless for a long time; that from the available evidence it would be abundantly clear that he had a hostile attitude with his parents; that though, he was staying in the very same house, he was living separately with his family; that his conduct towards Ganapathy Nadar led him to give a police complaint as evidenced under Ex.P14; that the second defendant has also not examined himself as a witness to speak of the alleged contributions made by him, and apart from that, no material is also placed before the court, and thus, the case of the defendants that they made any contribution to the business or purchase of the properties was a tissue of falsehood, which has got to be rejected by the court; that the plaintiff was given in marriage to P.W.3 Rajmohan in the year 1971; that even during that time, Ganapathy Nadar was a publisher; that after the marriage, they resided with Ganapathy Nadar at Door No.5, Sreepuram II Street for nearly two years, and then they started living separately; that the second defendant who was assisting his father till 1973 stopped the same, after he secured the job; that the plaintiff and her husband who were office goers and who were also living with Ganapathy Nadar, assisted him in his publications and printing work and exercised more care; that because of their assistance, Ganapathy Nadar was able to get much income from his business; that the documentary evidence would clearly reveal that the couple have helped Ganapathy Nadar financially; that Ex.P25 letter written by Ganapathy Nadar would clearly reveal the assistance sought by Ganapathy Nadar from PW3; that it is true that Ganapathy Nadar executed the first Will under Ex.D1 on 2.3.1989, and subsequent to the execution of the document, he purchased another property at Door No.4, Anthony Street, Royapettah, Madras, and he has also lost his wife; that apart from that, in view of the roughen attitude of the sons and their families, Ganaapthy Nadar was constrained to revoke the earlier Will and had executed Ex.P1 testament; that the defendants have neither proved any nucleus nor any income therefrom nor any contributions towards the businesses or the purchase of the properties, and thus, they are not entitled for partition as asked for, and hence, their suit has got to be dismissed.
13. Countering to the above contentions of the plaintiff's side, the learned counsel appearing for the defendants would submit that the defendants repudiated the claim of the plaintiff stating that the Will dated 18.5.91 under Ex.P1 is not a genuine and valid one; that the properties referred to therein were not self acquired properties of Ganapathy Nadar, but they are of joint family of which the defendants and Ganapathy Nadar were the coparcenary members; that if the properties are not joint family properties and if the said Will is not proved, then the defendants and the plaintiff would be getting 1/9th share in the properties; that if the properties are found to be joint family properties and the said Will is proved, the defendants would be getting 2/3rd share and the plaintiff 1/3rd share of Ganapathy Nadar in the joint family properties; that if the properties are found to be self acquired properties and if the will is not proved, then the defendants would be getting 2/3rd share and the plaintiff 1/3rd share; that if the properties are found to be self acquired properties and if the will is proved, then the plaintiff and the defendants would be getting properties as per the terms of the Will under Ex.P1; that according to the defendants, the said Will is not valid in law; that the defendants did not dispute the signature of Ganapathy Nadar in Ex.P1 Will; that it is pertinent to note that Ex.P1 Will was obtained by P. W.1 and her husband P.W.3 against the willingness of Ganapathy Nadar with a motive to misappropriate the properties of the joint family; that it remains to be stated that the contents of Ex.P1 document have not been disclosed, read out and explained to the testator, as required by law; that the signature of the testator has been obtained in the document as drafted and prepared to suit the convenience and aspirations of P.Ws.1 and 3; that a close reading of Ex.P1 Will would make it clear that the dispositions made thereunder are not natural; that it is pertinent to note that there are interpolations and additions in the document; that though it is the case of the plaintiff that the will was drafted by an Advocate, the said Advocate has not been examined; that the said Advocate had signed in the document and put the date as 19.5.1991; that it has to be taken into consideration that the attesting witness viz. P.W.2 has not put any date under his signature in the document, whereas the other attesting witness viz. PW4 has put the date as 20.5.1991; that these discrepancies would clearly indicate that the attesting witnesses were not present, when the signature of the testator was obtained in Ex.P1 Will; that it is admitted by P.Ws.2 and 4 that the said Will was executed by Ganaapthy Nadar only on 20.5.1991; that P.W.2 has filed an affidavit under Ex.P23 stating that the Will was executed by the testator on 18.5.1991; that the evidence of PW1 and Ex.P23 would make it very clear that the Will has been created under suspicious circumstances; that it is pertinent to note that when the testator signed the Will, neither P.W.2 nor P.W.4 was present; that there is no evidence on record to dispel the grave suspicious circumstances surrounding the Will; that the non examination of the said Advocate is fatal to the case of the plaintiff; that the evidence of PWs 2 and 4 would make it clear that they were not present at the time of execution of the Will on 18.5.1991, and thus they are not competent to speak about the mental condition and the disposing state of mind of the testator; that all the documents referred to in the said Will were in the custody of the plaintiff; that there is no evidence to find that the defendants do have any knowledge about the Will dated 18.5.91; that it is pertinent to note that the alleged Will dated 18.5.91 was in the custody of P.Ws.1 and 3 till it was produced before the court; that a perusal of the affidavit filed by PW1 would indicate that the dispositions in the Will have been decided and dictated only by PW1 and PW3; that PW1 has admitted that she did not know whether the witnesses were present when her husband obtained her father's signature in Ex.P1 Will; that it is an admitted fact that the testator executed a Will on 2.3.19089 under Ex.D1; that the dispositions made under Ex.P1 are in total contradictions and conflicting to the dispositions under Ex.D1; that if the testator had understood the contents of the Will, he would not have signed the Will; that it remains to be stated that the willingness of the testator has been clearly explained in Ex.D1 Will; that PW1 has admitted that the interpolation in handwriting in Ex.P1 Will is not in the handwriting of the testator; that the wife of Ganapathy Nadar died on 1.5.1991; that after the demise of his wife, Ganapathy Nadar was suffering mentally; that even before he recovered from the shock and agony, it is very difficult to find that he would have executed the will on 18.5.1991; that it is pertinent to note that at the old age of 85 years and having lost his wife, the testator could not be found to have kept his mind in a sound and disposing condition; that it is clear from Ex.D2 affidavit filed by the plaintiff before the Civil Court that the testator died intestate on 24.10.1991, and she claimed right to succeed to the estate of late Ganapathy Nadar; that P.Ws.2 and 4 being close friends and persons known to PW3 have come forward to depose against the defendants and in favour of the plaintiff on the instructions and at the instance of PW3, the husband of PW1; that the plaintiff has not let in any evidence to dispel the above stated suspicious circumstances surrounding the execution of the document; that there is no trustworthy and unimpeachable evidence from the side of the plaintiff to find that the Will is genuine and valid; that the evidence of PW3 cannot be relied; that the statement of PW3 that he read Ex.P1 Will only after the death of the testator was false, since the document was in the custody of the plaintiff; that the falsity crept in in the evidence of PW3 has been exposed from the evidence available on record; that regarding the assistance rendered by PW3 to the testator, P.W.3 has given conflicting statements in his evidence; that it is pertinent to note that PW3 has applied for the certified copy of the partition deed under Ex.D3; and that in view of the above stated suspicious circumstances, it has to be held that the plaintiff has not proved the document, as required by law. So far as the partition suit, filed by the defendants is concerned, the learned counsel would argue that to decide the issue between the parties, it is relevant to look into the partition deed under Ex.D3, which confirms that the property at Door No.28, Kalingarayan Street, Old Washermanpet, Chennai, came to the hands of Ganapathy Nadar on partition of the joint family properties; that after that Ganapathy Nadar and his two sons, the defendants herein have constituted a joint family, which is evident from the mortgage deeds under Exs.P2, P3 and P5; that after the sale of the said property under Ex.P8, the sale proceeds were invested in the business; that according to DW1, the income of the sons of Ganapathy Nadar were thrown into common hotchpot maintained by the Kartha of the joint family viz. Ganapathy Nadar; that a perusal of Ex.P11 would show that the second defendant had signed the document as a witness, and thus, it can be stated that Asaithambi, the second defendant was living with Ganapathy Nadar; that under Ex.P12 letter, Ganapathy Nadar had expressed the fact that Santha Publishers was a firm; that Ex.P15 income tax returns have been submitted under a voluntary disclosure scheme to show the source for the purchase of the property in premises bearing Door No.5, Sripuram II Street, Mylapore, Chennai; that under Ex.D4, it can be found that Engal Pathippagam concern has been maintained as joint family concern; that Ganapathy Nadar himself had admitted the joint family nature of the properties and also the existence of the joint family; that PW3 has admitted the fact that Ganapathy Nadar and his two sons were maintaining a joint family; that Ganapathy Nadar entered into two agreements with respect to the property at Door no.34, Big Street, Triplicane, Chennai, and this would confirm the fact that Ganapathy Nadar and his sons were living as joint family; that the evidence of DW1 is consistent to find that himself, his brother Asaithambi and Ganapathy Nadar formed a joint family and the properties referred to in Ex.P1 Will are the joint family properties available for partition between Ganapathy Nadar and his two sons; and thus, the defendants have well established the fact that there was a joint family by adducing satisfactory and acceptable evidence; and hence, the partition has to be ordered.
14. The plaintiff originally filed a O.P. for issue of letters of administration which has been subsequently converted into a Testamentary Original Suit. The plaintiff has sought the relief specifically alleging that her father late Ganapathy Nadar in a sound and disposing state of mind has executed Ex.P1 Will on 18.5.1991 making bequest as found therein. The said suit is seriously contested by the defendants stating that the said Ex.P1 Will is not a genuine and valid document; that the same was created under suspicious circumstances; that the signature of Ganapathy Nadar was obtained in the said document, taking undue advantage of his mental and physical conditions that prevailed during the relevant time; that the plaintiff has not proved the document as required by law, and hence, the relief has got to be refused. In order to prove the testament, the plaintiff has examined herself as P.W.1 through whom Ex.P1 a registered Will dated 18.5.1991 was marked and both the attesting witnesses as P.Ws.2 and 4. The first attesting witness examined as P.W.2 Dr.P.K.Srinivasan has deposed that the signature found as the first attesting witness in Ex.P1 Will executed by Ganapathy Nadar was that of his; that Ganapathy Nadar made a request through phone to come to his house on 20.5.1991 before the witness went to the hospital; that he went there in the morning; that he was able to remember the day because he was rushing to the hospital at that time; that Ganapathy Nadar signed in the Will first in his presence, and then only the witness signed in it; that Ganapathy Nadar saw him signing in Ex.P1 Will; that at the time when he signed Ex.P1 Will on 20.5.1991, the state of mind of Ganapathy Nadar was very good; and that he did not confide to him about any force being exerted on him while signing Ex.P1 Will. The witness would further depose that Ganapathy Nadar has been consulting him for his wife Chellammal who was suffering from Arthritics from 1968-69 onwards; that he used to accompany his wife; that he consulted him till his death; that the relationship with Ganapathy Nadar though was initially professional relationship between a doctor and a patient, subsequently, they became closer because of the appreciation for his publications; that many times he had occasion to interact with the plaintiff and the defendants; that his relationship with his two sons was not congenial; that he knew reasons to some extent; that his first son was always living aloof with his wife; that he had no issues; that he did not bother to enquire about his parent's health; that the second son of Ganapathy Nadar was equally bad; that the plaintiff was the one who took intense care for her parents' health and frequently used to accompany her father during his consultation with him; that Ganapathy Nadar maintained good physical health and used to do meditation and asanas; that he also demonstrated some asanas which surprised him because of his age; that during his association with Ganapathy Nadar, he found him to be very intelligent, shrewd and of clear understanding and sharp; that he was mentally always balanced and very calm; that at the time of his death he was 85 or 87. P.W.4 P.Chidambaram, the other attesting witness would state in his evidence that he is presently employed as Deputy Central Intelligence Officer, Ministry of Home Affairs, Government of India; that he hails from the same place of Ganapathy Nadar; that he was acquainted with Ganapathy Nadar from 1984 till his life time; that the signature found at page 5 of Ex.P1 Will was his; that on 20.5.1991 Ganapathy Nadar called him to come to his residence at No.5 , Sreepuram II Street as he had something urgent to do; that when he reached his house, Ganapathy Nadar had Ex.P1 with him in which he already subscribed his signature, and the first attesting witness Srinivasan had also signed in the said document; that he knew that the signatures were that of Ganapathy Nadar since he informed so and also because he signed in his presence in the Sub Registrar's Office; that Ganapathy Nadar, himself and a teacher, whose name the witness did not remember, went to the Sub Registrar's Office, where he identified Ganapathy Nadar to the Sub Registrar and subscribed his signature as one of the identifying witnesses; and that during his acquaintance with Ganapathy Nadar from 1984 to 1991, he found Ganapathy Nadar physically sound and mentally alert.
15. The plaintiff has come forward with the request of letters of administration with the specific pleading that her father Ganapathy Nadar executed Ex.P1 Will on 18.5.1991 in a good and sound disposing state of mind and in the presence of the two attesting witnesses. A perusal of Ex.P1 testament would go to show that the said document is a typed one on stamp papers issued in the name of Rajendra Babu, an Advocate on 18.5.1991. Ex.P1 document also bears the date 18.5.1991. It is admitted by the plaintiff's side that the document was drafted by one Mr.Rajendra Babu, Advocate. The said advocate, who prepared the document has not been examined. But, at the last page of the document under Ex.P1, the advocate has written "drafted by me" and has signed and has also put the date as 19.5.1991. From the said writing made by the said advocate, who prepared the document, it would be abundantly clear that the document should have been prepared only on 19.5.1991 and not before that. P.W.1 has specifically stated in her evidence that Ex.P1 is the registered Last Will and Testament executed by her father Ganapathy Nadar on 18.5.1991 in which her father's signature is found; that it was a registered Will; that the same was registered in the Office of the Sub Registrar on 20.5.1991; and that in the said Will, Dr.P.K.Srinivasan and P.Chidambaram had signed as attesting witnesses. Even during the cross examination, the witness has affirmed that Ex.P1 Will was executed on 18.5.1991. Both the attesting witnesses have been examined as P.Ws.2 and 4. According to PW3, both the attesting witnesses were very well acquainted to him. It would be more appropriate to reproduce the relevant part of the evidence of P.W.2 which runs as follows:
"The signature found as the 1st attesting witness in Ex.P1 Will executed by Ganapathy Nadar is that of mine. Ganapathy Nadar phoned to me and asked me to come to his house on 20.5.1991 before I go to my hospital. I went there in the morning. I remember it very well because I was rushing to the hospital at that time. Ganapathy Nadar signed in the Will first in my presence and then only I signed in it. Ganapathy Nadar saw me signing in the Ex.P1 Will. I do not remember whether the 2nd attesting witness was present at that time. At the time of signing in Ex.P1 Will on 20.5.1991, the state of mind of Ganapathy Nadar was very good."
According to the evidence of P.W.2, Ganapathy Nadar executed Ex.P1 Will only in the morning of 20.5.1991, and he has attested the same. It is pertinent to note that he has not spoken to the fact that the second attesting witness was either present at that time or attested the document in the presence of the executant. A sworn affidavit of the said witness marked as Ex.P23 would read that on 18th May, 1991 at the premises bearing door No.5, Sreepuram II Street, Royapettah, Madras 14, he was present along with P.Chidambaram, the second attesting witness; that he saw the said deceased Ganapathy Nadar set and subscribed his name at the foot of the testamentary paper in English language and declared and published the same as and for his last will and testament; and that thereupon the witness and the said Chidambaram did at the request of the said deceased Ganapathy Nadar and in his presence and in the presence of each other all being present at that time set and subscribed their respective names and signatures at the foot of the testamentary paper as witnesses thereto. According to the said affidavit of the said attesting witness, Ex.P1 testament was executed by the said Ganapathy Nadar at his residence viz. No.5 Sreepuram II Street, Royapettah, Madras- 14 on 18.5.1991 in the presence of both the attesting witnesses, and they attested the said document at the same time in the presence of the testator.
16. According to the other attesting witness P.Chidambaram examined as PW4, on the request of Ganapathy Nadar to come to his residence for some urgent work, he went to the house of Ganapathy Nadar at about 12 noon on 20.5.91, and Ganapathy Nadar informed him that he had already executed a Will, and the first attesting witness had also signed in it. Quite evident it is from the testimony of PWs 2 and 4 that both of them have stated that Ganapathy Nadar executed the document only on 20.5.91, and not stated either on 18.5.91 or 19.5.91. It is not the case of the plaintiff that Ganapathy Nadar executed the Will on 20.5.1991, but only on 18.5.1991. Though both the attesting witnesses have deposed that Ganapathy Nadar executed the document on 20.5.199 1, a careful scrutiny of evidence of PWs 2 and 4 would clearly indicate that the first attesting witness has attested the document before he went to the hospital, i.e. during morning hours, while the second attesting witness has subscribed his signature during noon hours. As seen above, the evidence of both the attesting witnesses stand contra to the averments in the pleadings and the sworn affidavit filed by PW2. It would also be clear from their evidence that while one was present, the other was absent at the time of attestation of the document. Their evidence is falsified by the sworn affidavit of PW2 as found under Ex.P23, since it is stated therein that the execution by the testator and the attestation by both the attesting witnesses were at the same time. From all the above, it would be quite uncertain as to when Ex.P1 document was executed and attested. No doubt the circumstances narrated above have thrown lot of suspicions and doubts over the execution and attestation of the testament. The learned counsel for the plaintiff made a feeble attempt to explain away the above suspicious circumstances by stating that the affidavit that was filed under Ex.P23 was actually a format filled up by the counsel, and hence the court need not give any consideration for the said document. The court is afraid whether it can accept such a contention. It remains to be stated that it was a sworn affidavit filed by one of the attesting witnesses wherein he has narrated the place, time, manner of execution and attestation of the testament. If the deponent makes any deviation from the averments in the affidavit at the time of evidence, a duty is cast upon the propounder to dispel the suspicion and doubt that might attendant on it. Under any circumstances, the statutory requirements as to the proof of execution and attestation cannot be done away with. The law has laid down the provisions as to the proof of execution and attestation as mandatory not only to ensure that the execution and attestation of the document have taken place in the manner alleged by the propounder, but also to satisfy the conscience of the court to see whether the testator has executed the document out of his free will and volition, and the testament is not affected by any external influence or tainted with any one of the invalidating factors. The real intention of the testator could be assessed in his proper perspective only if there is acceptable and satisfactory proof of execution and attestation as required by law.
17. True it is that in the instant case, the propounder has marched both the attesting witnesses who have deposed that they witnessed the execution of the document by Ganapathy Nadar and they have also attested the same. It is pertinent to note that both the witnesses have categorically spoken that they saw the execution of the document by Ganapathy Nadar on 20.5.91, which is contrary to the case of the propounder that the same was executed on 18.5.91. While there is a writing by the advocate, who drafted the Will that Ex.P1 will was prepared only on 19.5.1991, the same would also stand contrary to the case of the propounder. The propounder has not disputed that she has filed an affidavit under Ex.D2 in CS 1307/88 in support of an application to add herself and her brothers as the legal representatives of the deceased Ganapathy Nadar. Para 3 of the said affidavit reads as follows: "I respectfully submit that our father late K.Ganapathy Nadar, the plaintiff in the above suit died intestate on 24.10.1991 at Madras leaving behind him the petitioners herein as the Class I Heirs entitled to succeed to his estate under Hindu Law."
Therefore, without any hesitation it can be stated that the available evidence is highly doubtful and suspicious whether Ex.P1 testament would have come into existence as put forth by the plaintiff in her case. During the relevant period, the plaintiff and her husband PW3 have been living together with Ganapathy Nadar in Door No.5, Sreepuram II Street, Royapettah, Madras, and the second defendant Asaithambi was residing in some other part of the same building. It is not the case of the plaintiff that somebody was with Ganapathy Nadar to assist him, after the death of his wife Chellammal on 1.5.1991. Therefore, the contention of the plaintiff's side that the preparation, execution and registration of the document was not at all known to PWs 1 and 3 cannot, but be false. It remains to be stated that Ganapathy Nadar was 84 years old and was sick. Thus, without the assistance and participation of P.Ws.1 and 3, Ex.P1 document could not have been prepared. It is pertinent to note that Ganapathy Nadar lost his wife on 1.5.1991, and the alleged Will under Ex.P1 has come into existence on 1 8.5.1991. Hence, it would be clear that Ganapathy Nadar would not have fully been relieved from the mental shock. The case of the plaintiff that Ganapathy Nadar executed a Will on 18.5.1991 stands contrary to the reasonable human conduct under a given circumstance, since no one could expect him to execute a Will as found under Ex.P1 within a short span of time. It is an admitted position that immediately after the execution of Ex.D1 Will, a copy of the same was given to all the parties. But, so far as the execution of Ex.D1 Will is concerned, the contention of the plaintiff's side that the copy of the same was not given to anybody, and that PW1 came to know about the same, only after the death of Ganapathy Nadar is highly unbelievable. It is pertinent to note that Ganapathy Nadar lived for five months from the time of execution of Ex.P1 Will. A perusal of Ex.D1 Will would indicate that Ganapathy Nadar wanted to bequeath the properties in such a way so as to look like a partition. This would be indicative of what was passing in the mind of the testator at that time was to make equal and reasonable disposition of the available properties among his children and grandchildren. But contrary to the intention of the testator under Ex.D1, major part of the properties is given to P.Ws.1 and 3 under Ex.P1. All the above would create a doubt whether the signature of the testator would have been obtained by the interested persons according to their convenience and got the signature of the attesting witnesses subsequently. In view of the available evidence, it can be very well inferred that without the active participation of P.W.1 and her husband PW3 in the preparation, execution, attestation and registration, the document could not have come into existence, as found under Ex.P1. It is well settled proposition of law that the true test to be applied by the testamentary court in a case like this is whether the evidence adduced and relied on by the propounder of the will is such as to satisfy the conscience of the court. Needless to say that it is impossible to reach such satisfaction unless the propounder who sets up the testament places a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. The Apex Court has held in a decision reported in AIR 1990 SC 396 (KALYAN SINGH VS. CHHOTI AND OTHERS) as follows:
"A will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
In the decision reported in AIR 1982 SC 133 (INDU BALA BOSE AND OTHERS VS. MANINDRA CHANDRA BOSE AND ANOTHER), the Apex Court has held thus; "The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S.63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
The tests enunciated by the Apex Court in the above rulings, if applied, the court has to necessarily say that in the instant case the propounder has not discharged the burden satisfactorily. The court is of the considered view that all the above suspicious circumstances which are not at all dispelled by the plaintiff, would no doubt, vitiate the testament, and hence, the court has to necessarily hold that Ex.P1 testament was brought under suspicious circumstances and has also not been proved as required by law. Therefore, it has to be held that the plaintiff is not entitled to get the relief as asked for. Issue Nos.1 and 2 are answered accordingly.
18. As seen above, the defendants have claimed partition in the suit schedule properties specifically alleging that an immovable property bearing door no.28, Kalingarayan Street, Old Washermanpet, Madras originally belonged to Ganapathy Nadar and his brothers, and on partition of the joint family properties, it came to the hands of Ganapathy Nadar in the year 1952; that in the said properties, Ganapathy Nadar and his sons, who constituted a joint family and as coparceners also, were entitled to equal shares; that the y were jointly enjoying the properties; that the same was yielding lot of rental income, which was invested in the family business viz. publication and printing, and out of the enormous income therefrom, the immovable properties in respect of which partition is sought for, were purchased, and since there was no partition during the life time of Ganapathy Nadar, on his death the defendants are entitled for partition in respect of the said properties with their sister, the plaintiff, who is one of the heirs of Ganapathy Nadar. The first defendant who is examined as D.W.1 in his chief examination has deposed in the above lines. According to the defendants, the immovable property situate in Door No.28, Kalingarayan Street, Old Washermanpet, Madras was a joint family property, which came to the hands of Ganapathy Nadar on partition with his brothers, and the same constituted the sufficient nucleus, and the income therefrom was utilised for the family business of publication and printing, and the immovable properties in question were purchased by Ganapathy Nadar, as Kartha of the joint family and for the benefit of the joint family and out of the income from the said business. This claim of partition is strongly opposed by the plaintiff on the grounds that the immovable property situate in Door No.28 Kalingarayan Street was a separate property of Ganapathy Nadar; that it did not yield any income, and thus there was no occasion to utilise that income for any business, and apart from that, all these publication and printing businesses were exclusively belonged to Ganapathy Nadar, in which his sons had nothing to do, and thus, the properties in respect of which partition is sought for were purchased by Ganapathy Nadar out of his own income, and hence the defendants cannot ask for any division in the same.
19. In their attempt to substantiate their contention that the said immovable property situate in Door No.28 Kalingarayan Street belonged to the joint family of Ganapathy Nadar and his brothers, the defendants much relied on Ex.D3 partition deed of the year 1952 and Exs.P2, P3 and P5 mortgage deeds executed by Ganapathy Nadar and his two sons viz. the defendants herein. It is true that under Ex.D3, the said property situate in Door No.28, Kalingarayan Street is shown as one of the properties, and the same was allotted to Ganapathy Nadar in the said partition. The specific case of the plaintiff is that the said property originally belonged to Unnamalai Ammal and Alamelu Ammal, and the said property was settled on Chinnammal, the daughter of Alamelu Ammal and the mother of Ganapathy Nadar. D.W.1 has categorically deposed that his grandmother's name was Chinnammal. Under Ex.D3, the partition deed relied on by the defendants, how the said property was acquired by Ganapathy Nadar and his brother is not made known. But under Ex.P6, a deed of release, executed by Gurusamy Nadar and Ganesa Nadar in favour of Ganapathy Nadar, it has been clearly stated that the said property originally belonged to Unnamalai Ammal and Alamelu Ammal, who settled the same in favour of Chinnammal, and it is also stated therein that Chinnammal is the daughter of Alamelu Ammal. Under Ex.P7, Govindasamy Nadar has executed a release deed in favour of Ganapathy Nadar on 19.5.64. Both the recitals under Exs.P6 and P7 are similar in that regard. Thus, it would be clear that the property originally belonged to Unnamalai Ammal and Alamelu Ammal, and the same was settled on Chinnammal, the mother of Ganapathy Nadar, and the property has devolved on Ganapathy Nadar through his mother. Under such circumstances, even though there was a partition entered into between Ganapathy Nadar and his brothers, and the partition included the said property as one of the items of property, and the same was allotted to Ganapathy Nadar, the said property cannot be termed as a joint family or the property that belonged to the coparceners. So long as the property devolved upon Ganapathy Nadar through his mother Chinnammal, it was a separate property in his hands and cannot be characterised as a joint family property or coparcenary property. It is true that the defendants have also joined with Ganapathy Nadar and executed three mortgage deeds under Exs.P2, P3 and P5. But, this also would not in any way change the character of the property. Hence, it would be futile on the part of the defendants to urge that the immovable property situate in Door No.28, Kalingarayan Street belonged to the joint family constituted by the father Ganapathy Nadar and themselves.
20. Admittedly, the suit property was an old tiled house, which was valued at Rs.3,000/-. According to the defendants, it was yielding enormous rents, but nothing is available to support their contention. Either in the plaint or in the evidence of D.W.1, nothing is available as to the quantum of the rental income derived from the said property during the relevant period. The recitals in the mortgage deeds would clearly reveal that those mortgages were executed to pay the earlier debts and to meet the family needs. The first defendant has admitted that there is nothing in the aforesaid mortgage deeds to suggest that the suit property were mortgaged for business purposes. The suit property was sold under Ex.P8 on 7.2.73 for a consideration of Rs.43,000/-. The said document recites that the property was sold in order to discharge the mortgage which stood in favour of Mylapore Permanent Benefit Fund and to meet the family needs. Nowhere it is stated that the said property was sold for the purpose of commencement of any business or towards any business. The contention of the defendants' side that the recitals in the document that the sale proceeds were used to meet the family expenses would include the business expenditure of the joint family also cannot be accepted. There is no evidence to show that the defendants demanded their father Ganapathy Nadar for any share in the property, even after the execution of Ex.D1 Will on 2.3.89, and a copy of the same was also given to each of the defendants. For all the above, it has to be necessarily found that the property situate in Door No.28, Kalingarayan Street, Old Washermanpet, Madras which according to the defendants is the original nucleus, was never a joint family property or coparcenary property, but a separate property of Ganapathy Nadar; that it did not yield any sufficient income; and that the property has also been sold towards the discharge of the earlier mortgage and for family needs. In the decision reported in 1999 2 L.W. 713 (AMIRTHALINGAM VS. UTHAYATHAMMA AND 15 OTHERS), this court has held thus: "Held, plaintiff failed to discharge the burden of establishing sufficient nucleus, and the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family There is absolutely no evidence in this case to show that the income was derived from the properties and were utilised for acquisition of other items. Mere existence of nucleus alone is not enough. It must be proved that there was surplus income for purchase of other properties and the same must be in the hands of the Managing member.
"If a member of a joint Hindu family is inclined to start a trade and for that purpose he gets assistance by way of a contribution from the joint family funds without any further assistance from the joint family and goes and starts a business of his own individually or in partnership and acquires properties by his own exertions, it will be not justifiable to hold that either the business or his properties would be joint family properties" per AIR 1953 Madras 723.
If that is the position of law, even in regard to a financial assistance from the family, this case is still worse. Plaintiff has no case that the family assisted late Ramachandra Padayachi or contributed in any manner for starting the business."
This Court has also held in a decision reported in 1998-2-L.W. 259 ( MUNIAPPA NAICKER VS. BALAKRISHNA NAICKER) as follows:
"The apparent tenor of the document has to be considered for the purpose of deciding the nature of acquisition, unless there are circumstances to show that the apparent tenor is not correct. In this case, the brief facts are that the plaintiff was only a coparcener and not a managing member. Most of the acquisitions were made by him at a time when his father was alive. Even though the appellant has a case that his father was not managing the affairs, absolutely no evidence has been let in to substantiate the same. In fact, prior to Ex.A-1, the properties were acquired and dealt with by the father, is clear. If it is their case that it was out of the family funds the plaintiff purchased the properties, defendant will have to establish as to what prevented the father from acquiring the property as was being done in the case of Exs.A-46 and A-47."
Applying the principles enunciated by this Court in the above decisions, the court may hasten to say that the defendants have neither proved the existence of the nucleus nor established the sufficient income therefrom nor that income were utilised for starting any business viz. publication or printing, and thus, the defendants have not discharged the burden of proof, and therefore, their contention has got to be negatived.
21. Concededly the suit property situate in Door No.5 Sripuram II Street, Royapettah was purchased for a consideration of Rs.4,50,000/- under Ex.P9 sale deed dated 10.4.86, and the other house property situate in Door No.4, Anthony Street, Royapettah, Madras was purchased for a consideration of Rs.4,50,000/- under Ex.P11 on 20.4.1990. On 12.12.1985, Ganapathy Nadar under Ex.P33 has made a loan application for Rs.2,50,000/- to Muthialpet Benefit Society Limited, wherein he has described the immovable property situate in Door No.5, Sripuram II Street, Royapettah, Madras as his own and has prepared to give security. It is pertinent to note that both the sale deeds have been executed in favour of Ganapathy Nadar with a clear recital as to the receipt of consideration from him. No one of the parties to the litigation is shown as one of the vendees under the documents. The apparent tenor of the document has to be considered for the purpose of deciding whether the sale proceeds were utilised for the purpose of any business as contended by the defendants' side. While the recital is not to that effect, the court should not draw any inference against the apparent tenor of the document. The said Ganapathy Nadar has borrowed a sum of Rs.50,000/- from the plaintiff by executing Ex.P10 promissory note on 10.7.1985. It is pertinent to note that Ganapathy Nadar entered into an agreement for the purchase of the first item of property the previous day viz. 9.7.1985. According to P.W.1, for the purchase of the first property viz. D.No.5, Sripuram II Street, she gave him a loan of Rs.50,000/- in the year 1985 in order to enable him to pay the advance amount of Rs.1.00 lakh. It remains to be stated that the second defendant Asaithambi has signed as a witness in the said promissory note. From the evidence, it could be seen that during the said period, the first defendant was in Bangalore, and he was transferred to Madras only in July 1987. He has admitted that he has purchased a house in his wife's name at Bangalore, and she owns a house property at Madras, and he has no documents to show that he has contributed any money for any of the businesses. Even after his transfer to Madras from Bangalore in 1987, he has stayed only for about 8 months at No.5, Sripuram II Street, Royapettah, Madras, and then he switched over to the quarters allotted to him at Jagadambal Colony, Royapettah. Despite his evidence that he has sent money to Ganapathy Nadar through bank drafts, the first defendant, who continues to be a bank employee, has neither filed nor summoned any documents to prove the same. This would be indicative of the falsity of the said contention that he made contributions through bank drafts. It is pertinent to note that under Ex.D1 Will dated 2.3.89 filed and relied on by the defendants, the house properties situate in Door No.5, Sripuram II Street and No.4, Anthony Street are shown as self acquisitions of Ganapathy Nadar. Significant it is to note that the house property situate in Door No.5, Sripuram II Street is shown as self acquired property of Ganapathy Nadar. Though the defendants have specifically pleaded about the sale deeds and Ex.D1 Will, nowhere they have stated that the recitals in respect of the said property as the self acquisitions of Ganapathy Nadar was false. Though the second defendant has joined with the first defendant in filing the suit for partition, he has not examined himself as a witness to speak about any one of the facts found in the plaint and in particular, as to the alleged contributions made by him towards the publication and printing business or for the purchase of any of the immovable properties. Though it is stated by the first defendant that his wife was contributing her salary to the joint family business, he has admitted that he did not have any proof as to the contributions made by her. In order to prove the same, the wife of the first defendant is also not examined. It is not disputed that the second defendant Asaithambi was not living with his parents, but was living separately in a portion of the said building. In the absence of either any evidence or any material to that effect, the contention of the defendants' side that Asaithambi also made contributions either towards the business or for purchase of any of the immovable properties cannot be accepted. From the available evidence, it would be abundantly clear that the said Ganapathy Nadar has started the publication and printing business of his own individually and has acquired properties by his own exertions. Relying on Ex.P15 series, being the income tax returns dated 30.9.86, for the period from 1976-77 and 1985-86, under a voluntary disclosure scheme, and Ex.D4 note sheet of the Chartered Accountant, the learned counsel for the defendant would submit that the sources for the purchase of the property in door No.5, Sreepuram II Street was shown from the joint family business, and Engal Padhipagam was also maintained as joint family concern. No evidentiary value could be attached to both these documents for the simple reason that Ex.P15 series was not a statement made by Ganapathy Nadar; and that it was a statement given by the plaintiff. A perusal of the said document would clearly show that the same was not certain about the nature of the assessment made over her father. So far as the other document under Ex.D4 is concerned, neither the Chartered Accountant was examined nor the document bears the signature of the concerned Chartered Accountant. In the absence of the same, Ex.D4 cannot be relied on. Under the circumstances, it would not be justifiable to hold that either the business or the properties would be joint family properties wherein the defendants could make a claim for partition. The issues 3 and 4 are answered accordingly.
22. The court has found that all the properties mentioned in the plaint Schedule in C.S.451/98 were self acquisitions of Ganapathy Nadar. The court has also found that Ex.P1 Will alleged to have been executed by Ganapathy Nadar on 18.5.1991 is not proved as required by law. Hence the plaintiff is not entitled to the relief of grant of letters of administration. Under the circumstances, all the properties of Ganapathy Nadar are to devolve upon the natural heirs by operation of law. Hence, the defendants who are the plaintiffs in C.S.451/98 are entitled to 2/3rd share in the immovable properties described in Schedules "A" and "B". So far as the movable properties described in item 1 of "C" Schedule are concerned, it is admitted that the furnitures, books, titles, printing machineries, materials belonging to printing and publishing business were well available at the time of the death of Ganapathy Nadar. So far as item 2 Maruthi Van and item 3 two colour TV, VCR, Computer, and Gold jewels described in "C" Schedule are concerned, the defendants have not placed acceptable evidence establishing either they existed during the life time of Ganapathy Nadar or he left those properties. Therefore, in respect of the first item of "C" Schedule, the defendants are entitled to 2/3rd share, and in respect of items 2 and 3 of "C" Schedule, they are not entitled to get any share.
23. In the result, TOS 2 of 1994 is dismissed. There shall be nor order as to the costs.
24. In the result, CS 451 of 1998 is partly decreed, and the plaintiffs therein are given a preliminary decree for partition and separate possession of their 2/3rd share in the immovable properties in "A" and "B" Schedules and item 1 of the movable properties in "C" Schedule. In other respects CS 451/98 is dismissed. Parties shall bear their own costs. Index: Yes
List of Witnesses:
List of Documents:
1. Ex.P1 18.5.1991 Original Will
2. P2 22.12.60 Deed of mortgage (copy)
3. P3 11.6.62 Deed of mortgage (copy)
4. P4 12.7.62 Deed of termination of mortgage (copy)
5. P5 25.1.70 Deed of mortgage
6. Ex.P6 24.7.61 Deed of release
7. P7 19.5.64 Deed of release
8. P8 7.2.73 Sale deed
9. P9 10.4.80 Sale deed
10. P10 10.7.85 Promissory note
11. P11 20.4.90 Sale deed
12. P12 11.12.86 Letter
13. P13 9.4.87 Letter
14. P14 29.7.91 Letter
15. P15 Income tax returns and assessment orders 1978-1992 16. P16 Property tax receipts 17. P17 Electricity Consumption Cards 18. P18 Bank Account Book 19. P19 Bank Pass Book
20. P20 Bank Pass book
21. P21 Magazine (series) "Kandupidi" 22. P22 Invitation cards 23. P23 Affidavit of the attesting witness 24. P24 Passport
25. P25 4.2.82 Letter
26. P26 orders dated 8.8.88 and 13.6.88 27. P27 1.1.85 Agreement of sale
28. P28 Encumbrance certificate from 1.1.52 to 31.12.58 29. P29 Encumbrance certificate from 1959 to 1973 30. P30 28.4.85 Letter
31. P31 17.11.87 Letter
32. P32 2.2.87 Letter
33. P33 Signature in loan application form 34. P34 Loan application form 35. D1 Certified copy of Will
36. D2 Certified copy of affidavit in OS 5273/96 37. D3 Registration copy of partition deed of the year 1952 38. D4 Note sheet prepared by Jambunathan & Co.
39. D5 5.11.01 Letter
TOS 2/94 and CS 451/98
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