Challenging the judgment and decree passed in A.S.No.12 of 2011, on the file of the Additional Subordinate Court, Karur, confirming the judgment and decree passed in O.S.No.987 of 2005 on the file of the Principal District Munsif Court, Karur, the plaintiffs have filed the above Second Appeal.
2. The plaintiffs filed the suit in O.S.No.987 of 2005 to declare the registered sale deed dated 03.01.1994 in respect of the suit property executed by the defendants 1 to 5 in favour of the sixth defendant is null and void and consequently, directing the sixth defendant to surrender the possession of the suit property to the plaintiffs 3 to 6.
3. The brief case of the plaintiffs is as follows:
(i) According to the plaintiffs, the suit property is the self-acquired property of one Late Nallianna Goundar. The first defendant is the wife of the said Nallianna Goundar. The defendants 2 to 4 are his daughters and the fifth defendant is his son. The plaintiffs 1 and 2 are the daughters of the fifth defendant. On 23.09.1991, Nallianna Goundar and the first defendant executed a registered Will in favour of the plaintiffs 1 and 2. The said Will was duly executed and attested by the witnesses. The said Nallianna Goundar died on 02.12.1991. After his death, the Will came into effect, hence, the plaintiffs 1 and 2 have become absolute owners to the properties including the suit property. The first defendant ? the other testator of the Will cancelled the Will on 11.12.1992 by a cancellation deed. According to the plaintiffs, the first defendant is not entitled to cancel the Will in respect of the properties belonging to Nallianna Goundar. To defeat and defraud the plaintiffs 1 and 2, the defendant 1 to 5 have executed a registered sale deed on 03.01.1994 and the sold the property to the sixth defendant. In the sale deed, it has been recited that the fifth defendant was representing on behalf of the plaintiffs 1 and 2. But the fifth defendant has adverse interest against the plaintiffs. The plaintiffs 3 to 6 have purchased the entire suit properties from the plaintiffs 1 and 2 for a valuable consideration on 28.01.2008. Therefore, the registered sale deed dated 03.01.1994 executed in favour of the sixth defendant is to be declared as null and void and the sixth defendant is to be directed to surrender the possession of the suit property to the plaintiffs 3 to 6.
(ii) On 21.09.1967 recognizing the possession of Nallianna Goundar and Sellappa Goundar, ryatwari patta was given to them. Subsequently, Nallianna Goundar and Sellappa Goundar have orally divided the property and the suit property was allotted to Nallianna Goundar. Since the suit property is the self-acquired property of Nallianna Goundar, the first defendant - his wife cannot claim any right over the suit property. On 28.01.2008, the plaintiffs 1 and 2 have sold the plaint schedule property to the plaintiffs 3 to 6 for valuable consideration.
4. The brief case of the sixth defendant is as follows:
(i) According to the sixth defendant, the suit property is not the self-acquired property of Nallianna Goundar. S.F.No.8 corresponds to old S.F.No.335. It comprises an extent of 9 acres 72 cents. Originally, a grant was given to one Dhasi Ammani to this land for performing dance at the time of festivals in Karur Pasupatheeswaraswamy temple. She was given the property for dancing services. Later the grant was enfranchised and ryatwari Patta was given to her and she became the absolute owner of the property. From the date of grant, Dhasi Ammani was in possession and enjoyment of SF No.8. After the death of Dhasi Ammani, her two daughters have orally partitioned the property and southern half was retained by one daughter and the northern half was retained by another daughter. The suit property is the northern half. Kaliammal - the first defendant, who was the successor of one of the daughters of Dhasi Ammani, became entitled to the suit property. The execution of the registered Will by the first defendant and Nallianna Goundar in favour of the plaintiffs 1 and 2 is denied. The first defendant is entitled to cancel the Will. Therefore, she cancelled the Will by a cancellation deed dated 11.12.1992. From the date of purchase, the sixth defendant is in possession and enjoyment of the suit property. The sixth defendant had prescribed title by adverse possession.
(ii) The sale deed dated 28.01.2008 is a collusive and fabricated document. The person who purchased the suit property during the pendency of the suit is bound by the decree. In these circumstances, the sixth defendant prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiffs, 7 witnesses were examined and 9 documents, viz., Exs.A.1 to A.9 were marked. The defendants 1 to 5 remained exparte before the trial Court. On the side of the sixth defendant, D.W.1 was examined and 16 documents viz., Exs.B.1 to B.16 were marked. The third parties' exhibits were marked as, Exs.X.1 to X.7.
6. The trial Court, after taking into consideration the oral and documentary evidences, let in by the parties, dismissed the suit. Aggrieved over the same, the plaintiffs filed an appeal in A.S.No.12 of 2001 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the plaintiffs have filed the above Second Appeal.
7. Heard G.R.Swaminathan, learned Counsel appearing for the appellants and Mr.S.Parthasarathy, learned Senior Counsel appearing for the fifth respondent.
8. At the time of admission of the above Second Appeal, the following Substantial Questions of Law arose for consideration:
?1. Whether the Courts below are justified in construing the Ex.A.4- Will, dated 23.09.1991 as a mutual Will and not as a joint Will?
2. Whether the deceased first defendant Kaliammal was competent to revoke Ex.A.4 by executing Ex.A.6, dated 11.12.1992 after the demise of her husband Nallianna Gounder?
3. Whether the failure to produce the original Will can be a fatal to the case of the plaintiffs in view of the admission made by the defendants both orally and vide Ex.A.6, dated 11.12.1992?
4. Whether Ex.A.7, dated 03.01.1994 executed by the original defendants 1 to 5 in favour of D.6 ? Ravikumar is null and void since the properties have been settled in favour of the minor children and the mother has been shown as the guardian?
9. Mr.G.R.Swaminathan, learned Counsel appearing for the appellants submitted that Ex.A.4 ? Will dated 23.09.1991 should be construed as a joint Will. Further the learned Counsel submitted that the first defendant is not competent to revoke Ex.A.4 ? Will by the cancellation deed dated 11.12.1992, after the demise of her husband Nallianna Goundar. Further the learned Counsel submitted that the non-production of the original Will dated 23.09.1991 is not a fatal to the case of the plaintiffs for the reason that the parties had admitted the said sale in Ex.A.6, dated 11.12.1992. The learned Counsel also submitted that since the first defendant has no right to revoke Ex.A.4 ? Will, the sale deed executed by the defendants 1 to 5 in favour of the sixth defendant is null and void.
10. In support of his contentions, the learned Counsel appearing for the appellants relied upon the following judgments:
(i) In Hindu Community in General and Citizens of Gobichettipalayam, Senniappa Chettiar and another Vs. The Commissioner, Hindu Religious and Charitable Endowment, Madras and Others reported in (2005)3 MLJ 149, the Division Bench of this Court held that in construing a Will, the intention of the parties has to be ascertained on the basis of the expressions used and also on the basis of their conduct at the time of making the Will and it is not left to be determined in the light of subsequent events.?
(ii) In C.V.Raveendran & Others Vs. C.G.Gopi & Others reported in AIR 2015 KERALA 250, the Division Bench of the Kerala High Court held as follows: ?15. The above evidence has to be evaluated to decide the genuineness of Ext.B.2. It is pertinent to note that Ext.B2 is a Registered Will. In the absence of any serious challenge regarding registration, it must be presumed that the Will was registered after complying with all the statutory formalities. Registration of a Will is a piece of evidence confirming its genuineness and can confer it a higher degree of sanctity. There seems to be a consensus in the judicial pronouncements that, though there is no requirement that will should be registered, it adds to its authenticity (Pargat Singh v. Aas Kumar(1997 (3) RCR (Civil) 193 (P&H); Gurupal Singh v. Darshan Singh (1997 (3) RCR (Civil)485 (P&H). However, the Hon'ble Supreme Court in Rani Purnima Devi v. Kumar Khagendra Narayan Deb & another (AIR 1962 SC 567) cautioned. ?There is no doubt that if a Will has been registered that is a circumstance prove, its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination.? Hence, Ext.B2 can be appreciated with a higher degree of probative value in the light of its registration.?
(iii) In Chinnammal and another Vs. Valliammal and Others reported in 2010-3-L.W.908, in this judgment I had an occasion to hold that in the case of joint Will, the Will comes into effect immediately after the death of any one of the testators.
11. Countering the submissions made by the learned Counsel appearing for the appellants, Mr.S.Parthasarathy, learned Senior Counsel appearing for the fifth respondent submitted that the prayer sought for by the plaintiffs, to declare the sale deed as null and void, is not maintainable and was rightly dismissed by the Courts below. Further the learned Senior Counsel submitted that the plaintiffs should have filed the suit to set aside the sale deed dated 03.01.1994. Further the learned Senior Counsel submitted that the plaintiffs 1 and 2 had sold the suit property to the plaintiffs 3 to 6 under Ex.A.8 sale deed dated 28.01.2008 i.e., subsequent to the filing of the suit. The learned Senior Counsel submitted that since the plaintiffs 1 and 2 had alienated the property during the pendency of the suit, the purchasers viz., the plaintiffs 3 to 6 cannot claim any right in respect of the property. Further the learned Senior Counsel submitted that 5th respondent/6th defendant had purchased the property as early as on 03.01.1994 and that the suit was filed only in 2005 by the plaintiffs. The learned Senior Counsel also submitted that the Courts below have rightly dismissed the suit filed by the plaintiffs and the findings of the Courts below do not require any interference.
12. In support of his contentions, the learned Senior Counsel relied upon the following judgments:
(i) In Vishwambhar and Others Vs. Laxminarayan (died) through L.Rs, and another reported in (2001)6 Supreme Court Cases 163, the Honourable Apex Court held as follows:
?9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In
Section 8(2) of the Hindu Minority and Guradianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985.
Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff.?
(ii) In Benga Behera and another Vs. Braja Kishore Nanda and Others reported in (2007)5 MLJ 159 (SC), the Honourable Apex Court held as follows:
?49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], this Court held:
"
Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved.
Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of
Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."
Noticing B. Venkatamuni (supra), it was observed:
"The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]"
[See also Joseph Antony Lazarus (Dead) By LRs. V. A.J. Francis, (2006) 9 SCC 515]?
(iii) In V.A.Amiappa Nainar (died) and Others Vs. .Annamalai Chettiar (died) and Others reported in AIR 1972 Madras 154, the Division Bench of this Court held as follows:
?13. On a consideration of the aforesaid decisions, we hold that the decision of the Division Bench of this court in 1914 Mad WN 779 = (AIR 1915 Mad 746) is in accordance with preponderance of authorities in various High Courts that recitals as to boundaries in documents not inter partes are inadmissible in evidence under
Sections 11,13(a) 32(3) and 32(7). As pointed out by Wadsworth, J. in AIR 1940 Mad 450, the only method by which recitals in a document not inter partes could be admitted in evidence is by examinations of the executant of the document are found. In this view we hold that judgment of Ramaswami, J. in AIR 1956 Mad 226 is wrongly decided. The result is that Exs. A. 2. to A. 6 in the present case are inadmissible in evidence.?
(iv) In P.Krishnan Vs.Lakshmi Ammal and another reported in 1990(1) CurCC 478, this Court Court held that making the mutual Will irrevocable two conditions to be satisfied (i) The Surviving testator must have received benefits from the deceased testator under the mutual Will and (ii) The mutual Will should have been executed in pursuance of an agreement that the joint testator shall not revoke the mutual Will.
(v) In E.Rajkumar Vs. P.Nirmala Cesilia and Others reported in (1997)1 MLJ 74, this Court held as follows:
?12. At the time of argument, learned Counsel also wanted to urge the question as to whether the second defendant is entitled to execute a settlement deed in favour of plaintiff, after canceling the will Ex. B-22. The same is also raised as a substantial question of law. On the above submission, the following substantial question of law is also formulated: Whether both the courts below erred in holding that Ex. B-22 is revokable by second defendant.
24. On the above principles, let us consider the effect of Ex. B-22 dated 4.8.1974 executed by the parents.
25. In Ex. B-22, it is said that the executants are husband and wife, and they have two children (plaintiff and the first defendant). It also says that the plaintiff has been given in marriage and she has been well provided and she is happily residing with her husband, with children. It is also said that the first defendant is also married. But his wife is residing separately and that the first defendant is employed in a company at Madras, and that he is maintaining and protecting them. It is further said that to avoid any further litigation or other dispute in family, they intended to execute a will. They further say that all the properties which they possessed on that day and all the properties which they may acquire in future and also the right of the second executant as Manager-cum-Correspondent over Kasthuriba Gandhi Primary School, after their lifetime, pass on to the first defendant, and, on their death, he shall deal with all the properties belonging to them absolutely, with full power of disposition. They have also declared that what they have done was with their full knowledge and that they were aware of the legal consequences of their bequest. They have also declared that the will come into force after their lifetime, and that they have the right to modify or revoke the same.
26. From a reading of Ex. B-22, I do not find that any agreement was arrived at between the parties, nor have the executants taken mutual benefits among themselves. A reading makes it clear among themselves. A reading makes it clear that the husband and wife executed two wills in one document in respect of their separate properties. There is no express or implied contract between them that they shall not revoke the will. We find that as between the executants, no benefit or legacy is created and, therefore, as stated in Kochu Govinda Kaimal v. Thayankant Thekkot Lakshmi Amma , Ex. B-22 can never be treated as a mutual will. It is only a joint will whereby the power of revocation is implied. So, till the second defendant is the manager and proprietor of the School and also the owner of the properties, she is competent to revoke the same and settle the properties in favour of the plaintiff. So, the argument that Ex. B-22 is a bar for executing Ex. A-1 cannot hold good.
27. The first defendant has a case that the school as well as its assets were all acquired jointly by his parents and, therefore, second defendant alone is not competent to execute the settlement deed in favour of plaintiff. Even the document Ex. B-22 shows that the school all along remained as an asset of the second defendant. In fact, first defendant claims the right only under the second defendant. He also relies on an alleged letter written by the second defendant for transferring the managership in his favour. In Ex. B-22, the other executant, who is none other than his father, also declares the property as belonging to his wife. The other documentary evidence also conclusively shows that the plaint Schedule School is founded and owned by second defendant.?
(vi) In Chinnannan Vs. Paranimalai and Others reported in 2006(5) CTC 169, this Court held as follows:
12. When the minor is shown as eo nominee party, when the minors property is sold by the guardian, such alienation can be questioned by the minor, within three years from the date of his attaining majority, since the sale is only voidable. Because of the fact that the property was settled in favour of the minor and since the property was sold by guardian, it cannot be held that the sale deed itself is void and therefore, no prayer is necessary to set aside the sale deed. To support the above position, the learned counsel for the appellant drew my attention to a Full Bench decision of this Court in SANKARANARAYANA PILLAI AND ANOTHER vs. KANDASAMIA PILLAI [(1956) II M.L.J. 411], wherein while answering the points that if the minor is eo nominee party to a sale deed, is it necessary for him to sue for the cancellation of the document or is it suffice, if he files the suit for declaration, excluding the sale, as such, the Full Bench has arrived at an uniform conclusion and had held as follows:
"Where a minor is eo nomine a party to a sale deed or other document of alienation by a guardian which he seeks to set aside, it is not enough for him to merely sue for possession and pay court-fee under
section 7(v) of the Court-fees Act but he must sue for the cancellation of the document and pay court-fee under section 7(iv-A) of the Act. It makes no difference whether the sale deed is executed by the guardian of the minor as guardian or as manager of the joint family. In either case, the document has to be set aside. It is not open to the minor to ignore the transaction and seek possession of the property."
It is also answered "But where the minor is not eo nomine a party to the transaction and the transaction is on behalf of a joint family of which the minor was a member, he could always ignore the transaction as not binding on the family and can seek to recover possession."
But, this kind of situation does not arise in this case. In view of the Ex.A.1 settlement deed, minor became the absolute owner and minors property was sold by the natural guardian, without obtaining the Court permission. As natural guardian, he is competent to sell the property also. Therefore, as held in the above decision, when the said alienation is challenged, within three years after attaining the majority of the erstwhile minor, who is a eo nomine party in the transaction, it is incumbent upon him to set aside the sale, paying the necessary court fee. But, as seen from the plaint, no prayer is sought for to cancel the document-Ex.A.2 and no Court fee has been paid.
13. The above position of law is strengthened by a decision of the Supreme Court in DIVYA DIP SINGH AND OTHERS vs. RAM BACHAN MISHRA AND OTHERS (AIR 1997 SC 1465) wherein also it is held that sale effected by natural guardian after guardian ad litem was discharged is not void and if the minor want to challenge the sale within the limitation, he cannot ignore the sale deed executed by the guardian as void. Applying the above principle also, it is to be held, the contention of the plaintiff, that Ex.A.2 is void and it need not be set aside or cancelled, cannot be accepted and if at all, it is only a voidable document and this being the voidable document, it should be cancelled within the limitation i.e. within three years from the date of minor attaining the majority.
14. In Anjalai and 6 others V. Arumuga Chettiar and another, 2002(2)CTC 154, also, a question has arisen 'whether the release deed executed by the parents erstwhile minor should be cancelled before staking any claim, wherein, a learned Single Judge of this Court, relying on the above said Full Bench Judgment of this Court, has come to the conclusion that the document does not become void but only voidable and this being the position, without setting aside the release deed, the suit filed for declaration alone cannot be maintained. Following the above settled position of law and considering the admitted facts, that the suit property has been alienated by the nature guardian, showing the minor as a eo nomine a party, the plaintiff ought to have filed the suit for cancelling the Ex.A.2 sale deed and the suit filed without such prayer, praying Court fee, is not maintainable. For the foregoing reasons, the substantial question of law is answered in favour of the appellant and the result would be, the findings of the trial Court, as far as the appellant/4th defendant is concerned, have to be set aside.?
(vii) In L.Bakthavatsalam and others Vs. R.Alagiriswamy (died) and Others reported in 2007(5) CTC 513, this Court held as follows:
?47. It is true that Section 68 of the Indian Evidence Act applies to cases where the attesting witnesses are alive and
Section 69 applies to cases where no attesting witnesses are alive. But the question to be considered in these cases is that even if
Section 69 is applicable, it must be proved that the attestation of one of the attesting witnesses at least is in his handwriting and that the signature of the person executing the document is proved to be in his handwriting. In the absence of original Will produced before the Court and in the absence of any such evidence as required under
Section 69 of the Indian Evidence Act, except the evidence of the attesting witness Venkatasamy Naidu in
Section 145 Cr.P.C. Proceedings which was marked as Ex.B.7, it is patently clear that there is no compliance of the requirements under
Sections 68 or 69 of the Indian Evidence Act on the facts of the present case. While so, it is not known as to how it is relevant to consider the credibility of the attesting witness, when the requirement of law in respect of proof of execution of the Will requires the evidence of attesting witness to show that the Testator was in a sound state of mind and the Testator has seen the attesting witnesses, who have signed in the presence of the Testator as required under
Section 63(c) of the Indian Succession Act and not the credibility of the attesting witnesses. Therefore, the conclusion arrived at by the learned First Appellate Judge as if the attesting witnesses of Ex.B.10 are having high credibility and therefore, there is no reason to disbelieve them, has absolutely no meaning.
53. While the legal position about the onus of proof is clear, it is not known as to how the plaintiffs in O.S.No.649 of 1985 can be estopped from raising the validity of the Will. The validity of the Will is to be proved in accordance with law and not based on the admission or denial of any party. In any event, in the earlier suit filed by Mrs.Krishnammal in O.S.No.71 of 1958, even though it was on the basis of the Will dated 10.05.1955 stated to have been executed by R.V. Rangasamy Naidu, it ended in a compromise, there was no occasion for deciding the validity of the Will at that time. In this regard, it is relevant to point out that in O.S.No.71 to 1958, in the list of documents, what was stated to be filed was only a registration copy of the Will with a specific statement "original Will will be produced at the time of hearing".
58. Applying the provisions of the said section, I am not able to appreciate as to how Ex.B.10 being the registration copy of the Will can be allowed to be relied upon as a secondary evidence, when it is stated in the plaint itself in the present suit, O.S.No.89 of 1983 that the original Will was with the Executor, who was also made as a party, viz., 12th defendant who died during the pendency of the suit. But, till the date of his death, which is stated to be in 1990, the plaintiff has not taken any steps to direct him to produce the original Will. Even after his death, only summons was issued to his son Venkatramani and no further steps have been taken for the production of the Will. As I have stated earlier, even in the suit filed by Mrs.Krishnammal in O.S.No.71 of 1958, it was specifically stated in the plaint that the registration copy of the Will was filed and the original Will would be produced later. Strangely, in
Section 145 Cr.P.C. proceedings marked as Ex.B.2, the Will is stated to have been marked as Ex.P.68, whereas on a reading of the entire Ex.B.2 order, one cannot find as to whether Ex.P.68 marked in that proceedings was original Will or not. It is not known as to why the plaintiff has not taken any steps to summon the records in the said Criminal proceedings. All these things would show that it is not the case of the plaintiff that Will was lost or destroyed or unable to be produced for any reasonable cause. On the other hand, there is contradiction in evidence of Venkatasamy Naidu, given in the criminal Court, the deposition of which was marked as Ex.B.7 and the pleadings by defendants 1 to 3 in the present suit, viz., O.S.No.89 of 1983 about the place of execution of the Will. While the endorsement on Ex.B.10 shows that it was executed in the place of Ammani Ammal, the evidence of Venkadasamy Naidu in the criminal proceedings shows that it was in the house of R.V. Rangasamy Naidu. It is unimpeachable and almost acceptable position that R.V. Rangasamy Naidu was not keeping in good health. All these factual position create a suspicion on the validity of the Will certainly necessitating or imposing a heavy onus on the plaintiff to prove the genuineness of the same. The legal position regarding the removal of suspicion on the Will is laid down by the Supreme Court in H. Venkatachala vs. B.S. Thimmajamma (AIR 1959 SC 443), which is reiterated by the Apex Court in Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another (AIR 1962 SC 567) in the following words:
" 5. ..... The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations." Therefore, in fact, the trial Court has considered all these aspects and came to the conclusion that the Will has not been proved in the manner known to law. A reversal finding by the First Appellate Court for the above said reasons are not sustainable in law. In view of the same, there is no difficulty to come to the conclusion that the finding arrived at by the learned First Appellate Judge in holding that the Will of R.V.Rangasamy Naidu dated 10.05.1955 stands proved cannot be accepted.?
(viii) In Karuppa Konar @ Porikarar Karuppa Konar (deceased) and Others Vs. Chinnathayee (deceased) and others reported in 2016-3-L.W.550, this Court held as follows:
?22. None of the attestors of Ex.B1-Will has been examined as a witness in proof of its execution. No doubt, the contesting defendants have not denied the execution of Ex.B1-Will and on the other hand, they contended that the same was revoked and superseded by a subsequent Will dated 03.12.1974. Such an admission, as pointed out supra, will not dispense with the requirement of examination of an attestor to prove the execution of the said will. It is not the case of either the plaintiff or the first defendant that both the attestors of Ex.B1-Will are not alive. Except the plaintiff as PW1 and the first defendant as DW2, who were not the attestors of Ex.B1-will, no other witness was examined on the side of either the plaintiff or the first defendant to prove the execution of Ex.B1-Will. Therefore, the testamentary succession of Kaliammal and Rangammal, daughters of Palaniammal to the suit properties owned by Palaniammal does not stand substantiated. Evem in case of failure to prove Ex.B1-Will, the position will not change because Kaliammal and Rangammal were admittedly the daughters of Palaniammal and they alone were the non-testamentary class I legal heirs of Palaniammal. It is not the case of any one that either Kaliammal or Rangammal predeceased Palaniammal and it is an admitted fact that they survived Palaniammal. Hence, on the death of Palaniamml in the year 1975, both Kaliammal and Rangammal, as her class I legal heirs, became entitled to her properties in equal moieties.?
(ix) In M.Panneerselvam Vs. Susseela and Others reported in 2017-1- L.W.523, this Court held as follows:
?20. Inasmuch the plaintiffs have not asked for setting aside of the sale deed dated 27.08.1987, it has been found that serious prejudice and hardship has been caused to the first defendant in projecting his defence and accordingly, it could be seen that without cancelling the above said sale deed, the plaintiffs cannot be granted any further relief in the suit filed by them. In this connection, in the decision reported in 1993 2 MLJ page 428 (Sridharan and others V.Arumugam and others), it has been held that in so far as, the documents, in which, the minor children are made parties, they are bound in law to pray for setting aside the same and without such prayer, the suit is not sustainable in relation to those documents. In the light of the above decision, it could be seen that the suit laid by the plaintiffs without seeking for a prayer to set aside the sale deed dated 27.08.1987 would not not sustainable and therefore, as rightly argued by the first defendant's counsel, the plaintiffs' suit should be dismissed.?
13. On a careful consideration of the materials available on record, the submissions made by the learned Counsel appearing on either side and also the judgments relied upon by the learned Counsel appearing on either side, it could be seen that the plaintiffs have filed the suit in O.S.No.987 of 2005 to declare the registered sale deed dated 03.01.1994 executed by the defendants 1 to 5 in favour of the sixth defendant as null and void and to direct the sixth defendant to surrender the possession of the suit property. According to the plaintiffs, one Nallianna Goundar and his wife - first defendant executed a registered Will marked as Ex.A.4 on 23.09.1991. It is not in dispute that the said Will is a joint Will. Ex.A.4 Will was executed in favour of the plaintiffs 1 and 2 who were minors at that time. The said Nallianna Goundar died on 02.12.1991. After the death of Nallianna Goundar, the first defendant cancelled Ex.A.4 Will by the cancellation deed dated 11.12.1992, which was marked as Ex.A.6. Under Ex.A.7 sale deed dated 03.01.1994, the defendants 1 to 5 and also the minor plaintiffs 1 and 2 through their father 5th defendant sold the suit property to the sixth defendant.
14. It is not in dispute that the plaintiffs 1 and 2 are eo-nominee parties to Ex.A.7 sale deed. The suit was filed by the plaintiffs on 30.11.2005. During the pendency of the suit, ie., on 28.01.2008, the plaintiffs 1 and 2 sold the suit property to the plaintiffs 3 to 6 under Ex.A.8 sale deed. According to the plaintiffs, the first defendant has no right to revoke the joint Will executed by herself and her husband Nallianna Goundar on 23.09.1991. The plaintiffs having filed the suit to declare Ex.A.7 sale deed dated 03.01.1994 as null and void, without even getting such declaration from the Court, they sold the property to the plaintiffs 3 to 6 on 28.01.2008. By executing Ex.A.8 sale deed dated 28.01.2008 in favour of the plaintiffs 3 to 6, the plaintiffs 1 and 2 tried to project, as though they have right to execute the sale deed in respect of the suit property. If the plaintiffs 1 and 2 had believed that they had title over the suit property, then the necessity for filing the present suit to declare Ex.A.7 sale deed dated 03.01.1994 would only an unnecessary exercise. The plaintiffs 1 and 2 having filed the suit to declare the earlier sale deed executed by the defendants 1 to 5 in favour of the sixth defendant as null and void, they should have waited for the outcome of the litigation before venturing into any alienation.
15. The plaintiffs contended that ryatwari patta was given to Nallianna Goundar and Sellappa Goundar on 21.09.1967 which was marked as Ex.X.1. for SF No.8 and that they have orally divided the property and the suit property was allotted to the share of Nallianna Goundar. The plaintiffs contended that Nallianna Goundar and his wife ? first defendant executed a Will in favour of the plaintiffs 1 and 2 on 23.09.1991 and the Will came into force on the death of Nallianna Goundar on 02.12.1991. As such, according to the plaintiffs, the plaintiffs 1 and 2 have become the absolute owners of the suit property. In these circumstances, the plaintiffs contended that the first defendant has no right to cancel the Will executed by Nallianna Goundar.
16. The sixth defendant contended that S.F.No.8 (old S.F.No.335) was given on grant for one Dhasi Ammani for performing dance in Karur Pasupatheeswaraswamy temple. Further according to the sixth defendant, the first defendant is the legal heir of the said Dhasi Ammani, therefore, she has become the absolute owner of the suit property. The defendants 2, 3 and 4 are the daughters of Nallianna Goundar and the first defendant and the fifth defendant is the son of Nallianna Goundar and the first defendant. The plaintiffs 1 and 2 are the daughters of the fifth defendant. Under Ex.A.7 sale deed 03.01.1994, the sixth defendant purchased the suit property from the defendants 1 to 5 and also from the plaintiffs 1 and 2. Since the plaintiffs 1 and 2 were minors at the time of execution of Ex.A.7 sale deed, they were represented by their father viz., the fifth defendant . In Ex.B.2, the name of the temple ie., Karur Pasupatheeswaraswamy temple is referred to. The Courts below have rightly inferred that the grant was only to Dhasi Ammani and not to the deity.
17. Ex.B.2 is of the year 1912. In Ex.B.1 sale deed dated 04.11.1938 in respect of the southern half of S.F.No.8, while describing the origin of the ownership of the property, a reference has been made that the patta was granted to Dhasi Ammani of Karur Pasupatheeswaraswamy temple. It is also stated that the patta was also given to the said Dhasi Ammani. Therefore, from Exs.B.1 and B.2, it is clear that the patta in respect of the suit property was given to Dhasi Ammani even before several decades. Under Section 40(1) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1951, where the remuneration for any service to be performed by a devadasi in temple consists of lands granted, the Government shall enfranchise the said lands. If the remuneration consists of assignment of land, the Government shall enfranchise such assignment. However, in the case on hand, there is no evidence that the Government had made any order of enfranchisement. Exs.A.1 and X.1 are the order passed by the Settlement Tahsildar on 21.09.1967 to grant ryatwari patta to Nallianna Goundar and Sellappa Goundar. However, in Ex.B.9, it was mistakenly typed with material omission. Therefore, the Courts below rightly came to the conclusion that Ex.B.9 is not the correct document. Ex.B.3 is the land tax receipt dated 19.01.1986 issued in the name of Kaliammal- first defendant. Exs.B.5 and B.6 are also the land tax receipts standing in the name of the first defendant. From the above, it is clear that even after the issuance of Ex.A.1 order, the land tax was paid only by the first defendant in respect of the suit property. In these circumstances, the Courts below did not rely upon Exs.A.1 and X.1 document. P.W.1 also admitted that the patta was standing in the name of Dhasi Ammani. Considering the evidence let in on the side of the plaintiffs, the lower Appellate Court rightly came to the conclusion that Nallianna Goundar was enjoying the suit property only as a lessee.
18. With regard to the proof of Will, P.W.1 in her evidence has deposed that she is in possession of the original Will dated 23.09.1991. Inspite of having possession of the Will, the original Will was not produced before the Courts below. The plaintiffs have not stated any reason for non-production of the original Will dated 23.09.1991. It is needless to say that a Will has to be proved under the provisions of Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act. P.W.4, who is the attestor of the Will has stated that he did not remember whether the testators have seen him affixing his signature. Further there is no evidence that the attestors of Ex.A.4 Will have signed in the presence of the testators. It was also not deposed by the attestors that the testators have fixed their thumb impression in the presence of the attestors. In these circumstances, the lower Appellate Court has rightly come to the conclusion that the plaintiff has not proved the due execution of Ex.A.4 Will.
19. A reading of Ex.A.4 Will makes it clear that the husband and wife executed the joint Will and there is no express or implied contract between them that they shall not revoke the Will. From the available evidence, the Courts below came to the conclusion that only the first defendant is entitled to the suit property and Nallianna Goundar was only a lessee in respect of the suit property. When the plaintiff is questioning Ex.A.7 sale deed dated 03.01.1994, they should have filed the suit to set aside the said sale deed. The relief sought for in the suit by the plaintiffs is not sufficient to get the sale deed set aside. It is also pertinent to note that the suit was filed after 11 years from the date of execution of Ex.A.7 sale deed. The plaintiffs should have filed the suit to set aside the said document instead of filing the suit to declare the document as sham and nominal.
20. As rightly contended by the learned Senior Counsel appearing for the fifth respondent, the relief sought for in the suit is not maintainable without a prayer to set aside Ex.A.7 sale deed dated 03.01.1994. The judgments relied upon by the learned Senior Counsel appearing for the fifth respondent squarely apply to the facts and circumstances of the present case. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned Counsel appearing for the appellants, since the facts and circumstances are completely different, the said judgments are not applicable to the case on hand. Taking into consideration all these aspects, the Courts below have rightly dismissed the suit.
21. In these circumstances, I do not find any ground, much less any substantial question of law, to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs. Consequently the connected Miscellaneous Petition is also dismissed.
To
1. The Additional Subordinate Court, Karur
2. The Principal District Munsif Court, Karur.
.