The fourth defendant in O.S.No.147 of 2005, a suit laid for partition of the suit property, has preferred this appeal. For the sake of convenience, parties would be referred to by their rank before the trial Court.
2.The plaint allegations are :
● There are two items of properties scheduled to in the plaint. The first http://www.judis.nic.in property is an agricultural property and the second one is a house 3 property. These properties were purchased by a certain Ramaswamy Mudaliar, one under Ext.A1, dated 28.05.1933 and the other Ext.A2, dated 12.5.1950. Ramaswamy Mudaliar was married twice, and through his first wife, he had a son, the plaintiff in the suit. Ramaswamy's junior wife is Kaliammal, the second defendant in the suit. Through Kaliammal, Ramaswamy Mudaliar had one son and three daughters. The first defendant is the only son through his second wife Kaliammal. ● On 01.5.1974, Ramaswamy Mudaliar had executed a registered Will, whereunder he divided the properties into two and described them as A- schedule and B-Schedule properties. He allotted the property described in the A-schedule property to the plaintiff, and the B-schedule property to the first defendant. The residential portion of the property too was divided between them and they have been enjoying the same. ● The A-schedule property in the Will comprised of an extent 3.48 acres in S.F.No.186/1 of Somayampalayam Village, and out of this property the testator himself had sold 1.50 acres Vide Ext.A4, sale deed dated 07.4.1979 to a third party. On 04.4.1992, Ramasamy died, whereupon his registered Will came into effect.
● The intention behind the Will was that both the plaintiff and the first defendant should have equal shares in the property. ● The suit properties have been enjoyed in common by both plaintiff and the first defendant. As common enjoyment caused considerable http://www.judis.nic.in 4 inconvenience, the plaintiff issued a registered notice dated 26.2.2005, calling upon the defendant for partition. As the first defendant did not came out with positive response, the suit was laid for partition.
3. The suit was originally laid only against the first defendant. It was subsequently after the trial Court has directed, the other defendants came to be impleaded.
4. In his written statement, the first defendant alleged that specific properties were allotted to specific legatees and accordingly, A-schedule property in the Will was allotted to the plaintiff and B-schedule property was allotted to the first plaintiff. While so, Ramaswamy Mudaliar had sold a portion of the property that was covered under 'A' schedule to the Will, which he intended to bequeath to the plaintiff. There is no common or joint enjoyment between the plaintiff and himself, and that there is no need for partition of the entire suit properties. Parties are in separate possession and enjoyment of the properties that were bequeathed to them under the Will.
5. The defendants 2, 3 and 5 remained exparte and the fourth defendant Vennila had filed her written statement. In her written statement, she denied that her father Ramaswamy Mudaliar had ever executed a Will. She contends that the alleged Will is not true and not binding on her. 6.1 Before the trial Court, the plaintiff examined himself as P.W.1 and http://www.judis.nic.insupporting him was the 5th defendant Baby, who was examined as P.W.2. On 5 the side of the defendants, the first defendant Nagarajan examined himself as D.W.1, whereas the fourth defendant/the appellant herein examined herself as D.W.2. While P.W.1, P.W.2 and D.W.1 spoke in favour of the execution of the Will by the father, D.W.2 Vennila disputed it. The original Will was not marked, but its certified copy was marked as Ext.A3. No attesting witnesses of the Will was examined in terms of Sec.68 of the Evidence Act. 6.2 On an appreciation of evidence before it, the trial Court believed the existence of the Will and its genuineness and accordingly passed a decree for partition as between the plaintiff and the first defendant equally. On the question of genuiness of the Will, the learned trial Judge has relied on the testimony of the appellant as D.W.2 where she says that she had no knowledge about the Will and that it is not a case of she denying the Will. 7.1 Aggrieved by the decree passed, in which the appellant was denied any share in the any of the two items of the properties, she has come forward with the present appeal.
7.2 The first defendant, aggrieved to the extent of the partition granted in excess of the property available in the A-schedule to Ext.A3 Will, has preferred cross-objection.
8. Points of consideration:
1. Is Ext.A-3 Will genuine?
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2. Whether the decree passed by the Court below is bad to the extent it ignores ademption.
9. Before opening the argument for the appellant, the argument advanced by the counsel for the cross objector/first defendant may be stated. According to him, under Sec.153 of the Indian Succession Act, the trial Court ought to have applied the doctrine of ademption of Will, and should have confined the entitlement of the plaintiff to so much of the property as is available in the property allotted to him after sale by the testator as evidenced by Ext.A-4.
10. The learned Senior counsel for the appellant would argue :
● Neither the plaintiff nor the first defendant, both of who trace their exclusive title to the property under the Will of Ramasamy Mudaliar, have chosen not to produce the original Will, but have chosen to produce only a certified copy of the Will. In order, a certified copy might be entertained, the propounder of the Will have to satisfy the conditions stipulated under Sec.65 of the Evidence Act. When the original Will is not produced or if its loss is not adequately explained, then the same cannot be considered to have merit for a judicial scrutiny.
● Secondly neither of the two attesting witnesses were examined to prove the Will.
http://www.judis.nic.in 7 He placed reliance on the authorities in H.Siddiqui (Dead) by Lrs. Vs. A.Ramalingam [(2011) 4 SCC 240]; S.R.Srinivasa and Others Vs. S.Padmavathamma [(2010) 5 SCC 274]; Benga Behera & Another Vs. Braja Kishore Nanda & Others [(2008-1-L.W.241 = (2007) 5 MLJ 159 SC]; J.Yashoda Vs. K.Shobha Rani [(2007) 5 SCC 730]; Tamilkodi Vs.N.Kalaimani & another [2015 (4) CTC 771]; J.S.Godwin & another Vs. J.S.Jashmin Stellah [2014(1) CTC 216]; Sakkubai Vs. Kadirvelu & 9 others [2012 (1) MWN (Civil) 278]; V.R.Narayanasamy (died) and Others Vs. Rajammal & Others [2009 (2) TNLJ 593 (Civil)] and the judgment dated 21.07.2017 in S.A.No.1519 of 1997 [Seethaiammal (Died) Vs. V.Gomathi & Another].
11. In response, the counsel for the cross objector/first defendant, supported by the counsel for the first respondent (in A.S.No.843 of 2010) /plaintiff argued :
● Initially the suit was laid only against the first defendant and since there was no conflict or dispute between the plaintiff and the (first) defendant as to the execution of the Will, efforts to prove the Will appears to have been missed, since as per the law then stood, the parties were appeared to have been advised that an admitted Will need not be proved.
● Secondly on the date of the Will in 1974, the present appellant was barely 1½ years old and there is hardly any possibility for her to know http://www.judis.nic.in 8 that her father might not have executed the Will, a registered Will in that, as she is incompetent to speak about it. This is also vouchsafed by her own testimony, an aspect that weighed with the trial Court as well. Secondly, the Will was not disputed either by her mother (second defendant ) or her sisters (3 & 5 defendants). In fact, one of her own sisters has testified in support of the Will.
● This apart, P.W.2, Baby had instituted a suit in O.S.No.1101 of 2006, The copy of the plaint is Ext.B-2. Here the Will was disclosed and the present appellant, who was a defendant in that suit, did not raise any objection to the existence of the Will.
● Next fact is that the plaintiff has issued a suit notice in Ext.A-6 dated 23.02.2005 disclosing the Will but the present appellant to whom the copy thereof was sent, chose not to reply.
All these facts would indicate that the appellant has subsequently evolved a different strategy which was inconsistent with her earlier conduct in relation to the same fact. He relied on the authorities in H.V.Nirmala and Another [(2018) 3 SCC 303]; J.S.Godwin & another Vs. J.S.Jashmin Stellah [2014(1) CTC 216]; N.Natarajan Vs. The Executive Officer, Chitlapakkam Town Panchayat [2015 (2) CTC 681] Mohammed Mohideen Vs. Muthukumar Thevar and another [1998-1-L.W.36]; Thayyullathil Kunhikannan and others Vs. Thayyullathil Kalliani and Others [AIR 1990 Kerala 226].
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12. After piggybacking on the arguments of the counsel for the second respondent/cross objector for a while, the counsel for the plaintiff/first respondent found his own track to oppose the former on the question of application of doctrine of ademption. He insisted that doctrine of ademption would not apply and that the plaintiff is entitled to half of whatever properties dealt with under the Will.
13. Replying the arguments of the counsel for the respondents, the appellant's counsel took this Court extensively through the testimony of D.W.1 and P.W.2
14. The crux of the issue is whether Ext.A-3 in its present form – a certified copy, can be entertained and is it permissible in terms of the relevant provisions of the Evidence Act. Secondly, inasmuch as the Will was not proved in terms of Sec.68 of the Evidence Act, can the Will be acted upon?
15. Here, the plaintiff and the first defendant support the existence of the Will. The second and fifth defendant remain neutral and opt to remain exparte. The third defendant, though not has filed her written statement yet testified as P.W.2 to speak in support of the Will. This leaves the fourth defendant disputing the Will all alone. But as rightly argued for the respondents, this dispute is raised for the first time only in her written statement but not on any earlier occasion even though she had an opportunity to raise it, first in O.S.1107/2006, to which she is a party and second when Ext.A-6 notice was served on her. The appellant has not shown to have objected to them at any http://www.judis.nic.in 10 time earlier. Silence is not a dependable virtue in circumstance where the interest or right one asserts is opposed and asserted adversely by another. It however may have to be added that the conduct such as these are not conclusive and has to to fitted in the context of each particular case.
16. The fact remains that the Will is a registered Will, which implies that there is in existence a Will executed by Ramasamy Mudaliar, and all that the propounder is required to establish is that whether the Will is genuine. To rephrase the point, if Ramasamy Mudaliyar was in disposable mental state to execute the Will.
17. In proving the Will, the first point raised is that the original Will was not produced. In Ext.B-3, plaint it is alleged by P.W.2 that the Will was handed over to Doraisamy, the purchaser of a portion of the property covered under the Will. This is also spoken to by D.W.1. The issue is, irrespective of the fact whether the Will is original, or its copy, should the same be proved, even if the same is admitted by the parties. The law on the point kept oscillating and there are a set of authorities to the effect that an admitted Will need not be proved formally within the meaning of
Section 68 of the Evidence Act. However, in Ramesh Verma (d) through LRs., Vs. Lajesh Saxena (deceased) through LRs. [2017-2-LW 576 (SC)], the Hon'ble Apex court has held to the contra. It reads:
“13.......the mandate of
section 68 of the Evidence Act and the position remains the same even in a case where the opposite http://www.judis.nic.in 11 party does not specifically deny the execution of the document in the written statement.” True, the appellant has disputed the Will but the facts available on record, coupled with the previous conduct of the appellant herself indicate that the propounder(s) of the Will might have entertained a view that there might not be any need to prove the Will formally. When the litigation has not attained finality, and when a crucial point on which parties appear to have been in doubt on a point of law, then benefit shall have to be given to them.
18. While the ratio of the various authorities that the learned Senior counsel appearing for the appellant has placed before the Court stands as they are, yet in the context of the present facts scenario, this Court holds that an opportunity to prove the Will formally is required to be given and necessarily the matter has to be remanded back. The parties who rely on the Will are free to cause the production of the Will from the one who has its custody. The trial Court may thereafter consider if Ext.A-3 in its present form can be acted upon under Sec.65 of the Evidence Act.
19. Since application of doctrine of ademption is an issue that arises ancillarily or consequent upon proof of the genuineness of the Will, it should also have to be decided by the very Court that decides on the genuineness of the Will. http://www.judis.nic.in 12
20. In conclusion, this Court allows the appeal, set aside the decree of the trial Court dated 03.07.2009 in O.S.No.147/2005 and the case is remanded back to the trial Court to decide on the genuiness of Ext.A-3 Will in the manner indicated. In doing it parties would be at liberty to resort to all or any of the procedure contemplated in law. The Court below is required to dispose of the matter within three months from the date of receipt of the papers of this case. The Registry is directed to dispatch the records of the Court below as expeditiously as possible. Parties are directed to appear before the Trial court on 30-11-2018. Since the decree of the trial Court is set aside and inasmuch as the matter is remanded and the trial Court is also directed to consider the point raised in the cross-objection, nothing need to be decided in the cross- objection and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
26.10.2018 ds Index : Yes/No Speaking Order / Non-speaking Order To:
1. The Additional District Sessions Judge (Fast Track Court 3), Coimbatore
2.The Section Officer, VR Section, High Court, Madras. http://www.judis.nic.in 13 N.SESHASAYEE.J., ds Pre-delivery Judgement in A.S.No.843 of 2010 and Cros.Obj.No.40 of 2018 26.10.2018 http://www.judis.nic.in