The appellants have preferred this appeal as against the Judgement and decree dated 11.11.2002 made in O.S.No.155 of 1997 on the file of Additional Sub Court, Cuddalore.
2. The necessary facts of the plaint are as follows:
The suit properties are the absolute properties of Kondal Naidu,s/o Pakkiri Samy Naidu and he has served in E.I.D.Parry Company and he died intestate on 18.2.1992. He has left behind seven daughters viz., plaintiffs and the first defendant in the suit and they are the legal heirs. They are the members of the Hindu Undivided Family . "A" schedule property of the plaint is the ancestral property of Kondal Naidu and suit "B'' schedule property has been purchased by him as per sale deed dated 27.4.1977 for a valid consideration. The properties are still undivided and the family status has not been disrupted. The wife of Kondal Naidu also died intestate on 8.12.1994.
3. Even during the life time of Kondal Naidu and his wife in the portion of "B"schedule property a house has been constructed. The first defendant's husband viz., second defendant has been employee in Kallakurichi and they have been permitted to reside in the house in the "B" Schedule property. The first defendant and her husband viz., second defendant are conscious of the fact that the properties a re still undivided and yet they claim unlawful interest over the "B" schedule property. In fact, the plaintiffs and the first defendant together are entitled to 1/7th share each in the suit properties. The third defendant who is the husband of the 5th plaintiff is falsely claiming the title to the suit"A' schedule property. The 5th plaintiff and her children are living away from the third defendant as there is some misunderstanding between the 5th plaintiff and her husband third defendant. Tthe third defendant has issued a legal notice containing the false allegations on 26.7.1997 claiming the title over the suit "A"schedule property.
4. Neither the said Kondal Naidu nor his wife Saroja Ammal has executed any document or deed in favour of any one including the defendants. Defendants 1 to 3 are colluding together and they are endeavouring to create encumbrance and also attempting to alienate the suit properties and in this regard defendants 2 and 3 have no manner of right or title over the suit properties. Hence the suit is filed for partition of the respondents/plaintiffs 6/7th share in the suit properties.
5. The first appellant/first defendant has filed a written statement and the same has been adopted by the second defendant. The appellants 3 to 5 have been brought on record as Legal representatives of the deceased second appellant/second defendant.
6. In the written statement filed by the first appellant/first defendant and adopted by the second appellant/second defendant, it is averred that Kondal Naidu in fact has executed a valid Will in favour of the first appellant on 9.2.1992 and the said Kondal Naidu has been maintained only by the first appellant and in and by the said Will, the suit properties have been bequeathed by the said Kondal Naidu to the first appellant/first defendant and even the wife of Kondal Naidu who expired on 8.12.1994 has been maintained only by the first appellant and therefore the deceased Kondal Naidu has executed a Will in favour of the first appellant/first defendant on 9.2.1992 at Cuddalore. The first appellant has not been aware of the execution of the said Will till it has been handed over to her by her mother Saroja and further Kondal Naidu has borrowed a sum of Rs.27,500/- from Narayanasamy Naidu , the husband of the second appellant viz., second appellant and he wanted Saroja to make arrangements to pay the amount and therefore she has executed an agreement in favour of Narayanasamy Naidu on 8.8.1993 agreeing to pay the amount and the said agreement has been attached by Govindarajalu, the husband of Yesodha viz., the second respondent. The respondents/plaintiffs have sold "A" schedule property to Ravikumar and his wife R.Leela on 2.2.1998 after filing of the suit with a view to defeat the rights of the defendants. Hence the said Will is not binding on the defendants. The respondents/plaintiffs have made an endeavour to sell the suit item and a publication in newspaper dated 21.3.1994 has been given by the first appellant stating that Kondal Naidu has executed a Will in her favour and in the Will , it is mentioned that the first appellant has to maintain Saroja till her death and therefore, the Will is quite natural and voluntary. As a matter of fact, the appellants 1 and 2 are residing in the suit property and they will not entertain any idea to alienate the suit property. As per Will of Kondal Naidu, the first appellant has become the absolute owner of the suit property consequent upon the death of Kondal Naidu,the Will has come into force. Therefore, the respondents/plaintiffs have any subsisting right in the suit property.
7. The trial Court has framed in all four issues. Before the trial Court, on the side of the respondents/plaintiffs has examined witnesses P.W.1 to P.W.4 have been examined and Exs A1 to A18 have been marked and on the side of the appellants /defendants, D.W.1 to D.W.6 have been examined and Exs B1 to B40 have been marked.
8. On an appreciation of oral and documentary evidence and after analysing the same in depth, the trial Court has ultimately come to the resultant conclusion that the respondents/plaintiffs are entitled to the share of 6/7th share in the suit properties and accordingly passed a preliminary decree.
9. The points that arise for determination in this appeal are "1. Whether the respondents/plaintiffs are entitled 6/7th share in the suit properties?
2. Whether the Will dated 9.2.1992 executed by Kondal Naidu in favour of the first appellant/first defendant is a true and genuine one?
10.Contentions, Discussions and Findings on Point Nos.1 and 2:
The learned counsel appearing for the respondents/plaintiffs urges before this Court that the trial Court has failed to appreciate that there is no nucleus left behind the deceased Kondal Naidu to share the same as Legal heirs and more over trial Court has not appreciated the evidence attested witnesses to the Will viz., D.W.3 to D.W.5 and added further the trial Court has not given a finding on the continuation made by the second appellant to purchase the property as if it is the sole property of the deceased Kondal Naidu and indeed the sale deed remains in the name of the deceased Kondal Naidu which is only a sham and nominal and that the trial Court has decreed the suit without going into the question of law involved in the matter viz., that the "B"schedule property belonged to the first appellant and these aspects of the matter have not been looked into by the trial Court in a proper and perspective which has resulted in the decree being passed against the appellants and therefore prays for allowing the appeal in furtherance of substantial cause of justice.
11. In response, the learned counsel for the respondents/plaintiffs supports the Judgment of the trial Court in all aspects and therefore, prays for dismissing the appeal.
12. This Court has heard the learned counsel appearing for the parties and noticed their contentions.
13.The case of the respondents/plaintiffs is that Kondal Naidu has expired on 18.2.1992 intestate leaving behind him the respondents/plaintiffs and the first appellant as his only legal heirs and that respondents are the members of the Hindu Undivided Family and further that"A"schedule property is an ancestral property of Kondal Naidu and that the said "B"Schedule property has been purchased by him under a registered sale deed dated 27.4.1977 for a due consideration and also that the wife of Kondal Naidu has died intestate on 8.2.1994 and that the respondents/plaintiffs are entitled to the relief of 6/7th share in the plaint schedule properties which do belong to their undivided family consisting of the plaintiffs and the first defendant.
14. The categorical stand taken by the appellants is that Kondal Naidu has executed a Will in favour of the first appellant on 9.2.1992 and the Will is a voluntary one and in fact the wife of Kondal Naidu has been maintained by the first appellant and continued further the first appellant alone has taken care of Kondal Naidu who in turn has executed a Will in favour of the first appellant on 9.2.1992 at Cuddalore and more over, Kondal Naidu had borrowed a sum of Rs.2,75,000/- from Narayanaswamy Naidu, the husband of the first appellant, he wanted Saroja to make arrangements to pay the amount, the said Saroja executed an agreement in favour of Narayanaswamy Naidu on 8.8.1993 agreeing to pay the amount and till date the said amount has not been paid and after filing of the suit, the plaintiffs have sold"A"schedule property to one Ravikumar and R.Leela on 2.2.1992 and this has been done with a view to defeat the rights of the appellants and in short by virtue of the Will of Kondal Naidu dated 9.2.1992, the first appellant has become an absolute owner after the demise of Kondal Naidu.
15. In this case, the evidence of witnesses P.Ws1 to 4 and D.W1 to D.W.6 gain importance in view of the rival stand taken by the parties to the litigation.
16. P.W.1/first plaintiff in her evidence has deposed that the ancestral property house at Muthu Nagar in Cuddalore belongs too her family and both father and mother have resided in the "A"schedule property and "B"schedule property house is at Kallakurichi and this "B" Item has been purchased by father as per Ex A1 certified copy of Will dated 27.4.1977 from Balakrishnan and others and only in the vacant site at Kallakurici , her father has constructed a tiled house and in that house at Kallakurichi where her parents have been residing and in the house at Kallakurichi Defendants 1 and 2 have resided and since the second defendant has been employed in the Postal Department, Kallakurichi her father allowed defendants 1 and 2 to reside in the house at Kallakurichi and it is not correct to state that the first defendant has maintained her father Kondal Naidu and prior to the death of the said Kondal Naidu, the relationship between Lalitha and Kondal Naidu have not been cordial and that Kondal Naidu expired on 22.2.1994 at Cuddalore as per Ex A2 and prior to his death, he has not left behind any document in respect of the house at Muthu Nagar in Cuddalore or in respect of the House at Kallakurichi and till the death of her father, her mother only has maintained him and the two properties belong to the joint family properties and Ex A7 is the land patta and the electricity connection in respect of "A" schedule property is in the name of her father for which electricity tax receipt is Ex A6.
17. It is the further evidence of P.W.1 that it is not correct to state that Kondal Naidu has executed a Will dated 9.2.1992 in favour of the first appellant etc and further it is also not correct to state that the said Kondal Naidu has received a sum of Rs.27,500/- as loan from the second appellant and executed an agreement in favour of the second appellant and that the first appellant is entitled to 1/7th share and the remaining 6/7 are to be given to the plaintiffs.
18. P.W.2 in her evidence has stated that her father Kondal Naidu has not executed any document in respect of two items of property and till his life time and till his life time, he has not allotted the properties to anyone and that Kallakurichi house have been occupied by D.W.1 and D.W.2 during the lifie time of her father and that he has not executed any Will in respect of Kallakurichi house and that in "B" item of property Narayanasamy and Lalitha are residing and that they have no manner of right in two items each one has 1/7 share and that as per Ex B1 sale deed, they have all jointly sold "A"schedule property.
19. P.W.3's evidence is to the effect that the first defendant along with second defendant have been residing at Kallakurchi house during the time of their marriage and that she is not aware of the execution of the Will by Kondal Naidu in favour of Lalitha and that the Will has not been written .
20. P.W.4/second plaintiff in his evidence has stated that her father Kondal Naidu has purchased the suit property from Balakrishnan, through second defendant as per Ex B13 sale deed dated 27.4.1977 for a consideration of Rs.8,000/- and that her father has not written any Will in respect of Kondal Naidu House situated on the road and Kallakurichi houe and that her father has purchased the vacant site in Kallakurichi in 1975 and he constructed a house in 1979
21. D.W.1 in his evidence has stated that his father Kondal Naidu has no property other than that of "A" schedule at Cuddalore and that his father has written a Will at the time of his death and that it is not correct to state that they have been permitted to reside in Kallakurichi house and a vacant site has been purchased in the name of Kondal Naidu and that they have constructed a house in 1994 for which they have documents.
22. D.W.2 has deposed that Kondal Naidu has no property other than that of "A" schedule and that he has executed a Will and till the life time of Kondal Naidu, he has not claimed any right in "B" schedule in his own and as per Will Lalitha has right in "A" and"B" schedule properties and that plaintiffs have no manner of right and in Ex B3 notice, he has not stated that "B" schedule has been sold for Rs.7000/- as benami and that the Will has been written by Adikeasavan.
23. D.W.3's evidence is to the effect that in Ex B39 sale deed in respect of Kallakurichi property, he has signed as witness and that the second defendant informed that he is a Government servant and that if he purchases the properties in his name and his wife's name, he has obtained permission from the Central Government and hence the sale deed has been written in second defendant's father in law's name and in Ex B39 property, the second defendant has constructed a house.
24. D.W.4 in his evidence has stated that Kondal Naidu has executed a Will and at that time, he has been present and that Will has been written by Ramadoss and that Veeraswamy has been present and further that he has seen Kondal Naidu signing in the Will and Kondal Naidu has seen himself and Veerasamy singing in the Will and Will is Ex B40 and that he has present accidentally and also Veerasamy ha come to that place accidentally.
25. D.W.6's evidence is to the effect that he has written Ex B40 Will and that Kondal Naidu signed in his present and that Kondal Naidu has seen two witnesses Adikesavan and Veerasamy Naidu signing in the Will and that Kondal Naidu has signed in his presence in the Will.
26.In the present case on hand, it is not established either from documentary or oral evidence that "B" schedule property has been purchased by the said Kondal Naidu from and out of the money given by the second defendant. In fact, D.W.1 in his evidence has stated that "B' schedule property has been purchased in the name of the second defendant but the same has not been accepted by the trial Court. The House tax receipts filed in the case are not helpful to the appellants' case. Really speaking, Exs B21 to B27 house tax receipts in the name of second defendant-Narayanasamy has been paid by him,after the death of the said Kondal Naidu. Though a plea has been taken that "B"Schedule property has been purchased from and out of the money of the second appellant and that the property has been purchased in the name of Kondal Naidu as benami, the same is not accepted by this Court.
27. As regards the Will, it is to be pointed out that D.W5 in his evidence has deposed that Kondal Naidu used to sign in Tamil and that Kondal Naidu has signed in the said Will and at that time, Kondal Naidu has not written his address since he has to go urgently. Ex B40, is the Will dated 9.2.1992 executed by the said Kondal Naidu. The said Will has Tamil recitals and in that witness Adhikesavan and another have signed. A perusal of the signature of Veerasamy Naidu seen in Ex B40 Will and his signature seen in deposition of D.W.5 before this Court.
28. Significantly, it is the specific evidence of D.W.4 that he has been present at the time of Kondal Naidu executing the Will Ex B40. D.W.3 in his evidence has stated that he has signed in Ex B39 sale deed which is in favour of Kondal Naidu dated 27.4.1977 and that second defendant has paid the money and while at the time of writing of Ex B39, Kondal Naidu has not been present and since the second defendant has been employed in the Central Government, the same has been written in the father-in-law's name viz., Kondal Naidu in Ex B39 vacant site, the said Narayanasamy Naidu has constructed a house and the same is in his enjoyment.
29. D.W.5 in his evidence has stated that he has affixed his signature in Ex B40 Will and thereafter he has not written his father's name and address and that he has coming Cuddalore accidentally and that since Adikesavan called him , he has gone over to the house of Kondal Naidu. D.W.5, the second attesting witness in Ex B40 Will in his evidence has stated that he has known Kondal Naidu for the last 15 years and that the said Kondal Naidu has executed a Will in which he and Adhikesavan D.W.4 have signed and the signature seen in Ex B40 Will belongs too him and he along with Adikesan another witness have seen Kondal Naidu affixing his signature in the said Will Ex B40 and further the said Kondal Naidu has seen both of them signing in the said Will Ex B40. Even though the plea has been taken that the property has been purchased in the name of second appellant's father-in-law because of the fact that the former has been employed in the Postal Department of the Central Government and that the money has been given only by the second appellant, such kind of plea has not been proved to the satisfaction of this Court . As a matter of fact in ExB3 notice D.W.2/second defendant has not stated that "B"schedule property has been sold for Rs.7,000/- as benami. In fact the sale deed Ex.B39 sale deed standing in the name of Kondal Naidu, on a perusal, it is not expressly or impliedly refers to any payment having been made or is made by the second appellant. In the absence of any recitals to that effect in Ex.B39 sale deed In the absence of any recitals in Ex B39 sale deed and Ex B3 notice also, this Court is not in a position to accept the plea of benami taken by the appellants and the same is rejected by this Court.
30. Besides this, even though the appellants do claim right in regard to the suit properties, the evidence of D.Ws 1 to 6 have not inspired the confidence of Court especially in regard to the execution of Will etc., Therefore, the execution of Will by Kondal Naidu h as not been proved to the subjective satisfaction of this Court and since the Will has not been proved, the respondents/plaintiffs are entitled to the relief of 6/7th share in the suit property and resultantly, the appeal fails and the same is dismissed in the interest of justice leaving the parties to bear their own costs.
31. In the result, the appeal is dismissed Judgement and decree passed by the trial in O.S.No.155 of 1997 dated 11.11.2002 are affirmed. Considering facts and circumstances of the case, there shall be no order as to costs.
10.07.2009 sg To The Additional Sub Court, Cuddalore