The plaintiff has filed the suit for the following reliefs:-
i) To divide the immovable properties morefully set out in schedules 'A' and 'B' by metes and bounds by allotting to the plaintiff his 50% share.
ii) To divide the movable properties morefully set out in schedule 'C' and 'D' and allot 50% share of the same to the plaintiff and
iii) Directing the defendants to pay the costs of the suit.
2. According to the plaintiff, the suit properties belonged to late Mrs.Elie John, wife of V.K.John. The said Mrs.Elie John died on 01.03.1984 leaving behind her K.John(died), Leelie Seetharaman (2nd defendant) and Appu John(1st defendant).
3. The plaintiff is the son of K.John, who had died on 20.12.1985 leaving behind the plaintiff and sole legal heir entitled to succeed to the estate, namely 1/3rd share. The plaintiff's grand-mother had executed a Will on 02.02.1974 bequeathing the suit properties to the plaintiff, his paternal uncle Appu John and his aunt Leelie Seetharaman to be taken by them in equal shares. The said Appu John died intestate unmarried, the daughter Leelie Seetharaman died as a Hindu.
4. The plaintiff further claimed that Leelie Seetharaman died on 24.04.2001 pending the suit. According to him, she died intestate leaving behind the plaintiff and the first defendant as her legal heirs. Application was filed by the plaintiff to record the legal heirs of the deceased second defendant, who were already parties to the suit namely, the plaintiff and the first defendant. The said application was ordered.
5. It is also seen from the records that Appu John, the first defendant died pending suit. The plaintiff would claim that he died intestate. Therefore, the plaint as its stands today, seeks partition and separate possession of the plaintiff's half share in the suit properties. The sum and substance of the plaintiff's allegations is that property belonged to the plaintiff's paternal grand-mother and as per the Will dated 02.02.1974, executed by her, the plaintiff is entitled to 1/3rd share in the suit properties. The second defendant in the suit, daughter of V.K.John died pending suit on 24.04.2001 and she had converted to Hinduism, at the time of her marriage with one W.S.Seetharam.
Section 15 of the Hindu Succession Act would apply and the properties of a female Hindu inherited from her father or mother, who dies without children, will revert back to the heirs of father or mother. Therefore, according to the plaintiff, he is entitled to = share in the suit properties along with the first defendant.
6. The suit is resisted by in the first defendant contending that the plaintiff's grand-mother bequethed the schedule properties in favour of the second defendant under a Will dated 10.02.1984. It is also claimed by him that he was appointed as an executor of the Will. The first defendant further contended that on the death of Ellie John on 1.3.1984, the second defendant has become the absolute owner of the properties
7. The second defendant had filed separate written statement wherein it is claimed that the plaintiff's father was not in joint possession of the suit properties. It is stated that he left the family 44 years ago. It is also contended that in view of the Will dated 10.02.1984 left her by her mother, she has become the absolute owner of the suit property. It is also pleaded hat she had filed an application for grant of probate of the said Will and same is pending. On the above averments defendants 1 and 2 sought for dismissal of the suit.
8. The third defendant was impleaded as the legal representative of the deceased Leelie Seetharaman. He filed the written statement contending that his wife namely, the second defendant had executed a will on 02.01.2001 prior to her death in favour of the third defendant. It is also claimed that the first defendant has fabricated the Will dated 01.01.1998 using the forged signature of the second defendant. It is claimed by the third defendant that he has initiated proceedings for grant of probate of the said Will executed by his wife, the second defendant, on 22.01.2001 and the proceedings are pending. On the above contentions, the third defendant sought for dismissal of the suit.
9. On the death of Appu John, the first defendant, applications were taken out by the defendants 4 and 5 contending that the said Appu John had executed a Will dated 29.04.2002 bequething the suit properties to the 4th defendant. Therefore, according to the 4th defendant, she is the absolute owner of the properties. The 5th defendant is claimed that the deceased 1st defendant had executed a will dated 3.6.2007 in favour of the 5th defendant and 5th defendant would claim to have become the absolute owner of the properties under the said Will. In so far as the claim made by defendants 4 and 5 are concerned, the same was the subject matter of appeal before this Court in O.S.A.Nos.301 to 303 of 2007. Those appeals were filed by the plaintiff against the orders passed in Applications Nos.5707,5857 and 5958 of 2007. The Division Bench after considering the rival contentions as observed as follows:-
In the aforesaid background, while we are not inclined to grant the relief sought for 304 and 303, we make it clear that the defendants 4 and 5 who have been impleaded may take part in the suit to secure the representation of the deceased Appu John for the determination of his share, but the Court below cannot determine their claim in the partition suit in question which otherwise is required to be determine in the testamentary suit.
10. In view of the above observations, this Court, while trying the suit, cannot go into the correctness of the claims of the defendants 4 and 5. As pointed out by the Division Bench their claim is to be decided in separate proceedings.
11. On the consideration of the rival pleadings, this Court had framed the following issued in the suit:-
i) Whether the plaintiff is entitled to = share in the schedule mentioned properties?
ii) Whether the plaintiff is in joint possession of the suit schedule properties with the defendants?
iii) Whether Elie John had bequethed the properties to the second defendant under Will dated 10.02.1984 and if so, whether the second defendant has acquired the possession and title to the properties?
iv) Whether the plaintiff is entitled to the partition prayed for and
v) To what relief?
12. After the 3rd defendant was impleaded, this Court on 09.04.2007 framed the following additional issues for trial:-
i) Whether the 3rd defendant is entitled to a share in the suit properties?
ii) Whether the Will alleged by the 3rd defendant is true, valid and binding.
13. Issue No.III:-
Though, in the written statement, the second defendant would submit that her mother had executed a Will on 10.02.1984 bequeathing the entirety of the suit properties in her favour and she has also taken proceedings for grant of probate, the original Will has not been produced in these proceedings. The attestors to the Will have not been examined. A xerox copy of the said Will is marked as Ex.P12 on the side of the plaintiff and the plaintiff would claim that it is a forged document. The document being a Will it has to be proved in the manner known to law under
Section 68 of the Indian Evidence Act. As already stated, the original Will has not been produced and attestors to the said document have not been examined.
14. However, the learned counsel for the 4th defendant would contend that P.W.1 in his cross examination has admitted the existence of the Will dated 10.02.1984. Such admission will not amount to proof of a Will. Hence, the issue relating to the existence of the Will dated 10.02.1984 has to be necessarily answered against the second defendant.
15. Thus, it is concluded that the Will said to have been executed on 10.02.1984, has not been proved in accordance with law and the second defendant does not become the absolute owner of the properties by virtue of the said Will.
16. Issue No.I&II:-
These issues relate to the quantum of share claimed by the plaintiff. The plaintiff originally claimed 1/3rd share in the suit properties as the heir of the eldest son of the original owner Mrs.Elie John. Subsequently, the plaintiff produced the Will dated 02.02.1974. The attestor to the said will has been examined as P.W.2. The original will dated 2.2.1974 has been marked as Ex.P19.
17. The learned counsel for the plaintiff submitted that the evidence of P.W.2 would show that the Will dated 2.2.1974 has been executed by Elie John in a sound disposing state of mind. P.W.2 in his chief examination has stated the circumstances under which the Will came to be executed by Mrs.Elie John. He had also deposed about the sequence in which the signature of the testator and the two attesting witnesses were affixed in the said document.
18. The learned counsels for the 4th and 5th defendants pointed out certain portions of the cross examination wherein the witness had deposed that he was not present at the time when the will was written. My attention is drawn the to the following statements of the said witness in cross examination in order to discredit his evidence regarding execution of the Will.
I have already deposed in my chief examination that I do not know exactly on which date Ex.P19 was written. It is not written in Ex.P19 that Elie John had signed in my presence and I also had signed in her presence. It is also not written in Ex.P19 that Elie John had signed Ex.P19 in the presence of the 2nd witness Mrs.Kamala Dhamodharan and Mrs.Kamala Dhamodharan had signed in the presence of Elie John.
19. The learned counsel for the defendants 4 and 5 would vehemently argue that the execution of Will has not been proved. The original Will has been produced as Ex.P19, which is a holographic Will. It is seen from Exhibits P20 and P14 series written by Mrs.Elie John to the plaintiff's father that the handwriting in Ex.P19 is similar to the handwriting in those exhibits.
20. I do not think that the so-called contradictions pointed out by the learned counsels appearing for defendants 4 and 5 would have the effect of discrediting the evidence of P.W.2 with reference to the execution and attestion of a will as well as the state of mind of the testator on 2.2.1974.
21. The learned counsel for the defendants 4 and 5 emphasised the fact that the Will was produced at the later stage and no claim was made under the Will in the original plaint. Of course, the Will has been produced only at a later stage. The reasons assigned by the plaintiff for the delay has been accepted by this Court and the document has been allowed to be marked. Therefore, the delay in production of the document alone cannot be a ground to disbelieve the same.
22. In view of the above, In conclude that the plaintiff has established by truth validity and genuiness of the will dated 02.02.1974. Of course, it is contented that Elie John left a subsequent will dated 10.02.1984. While answering the issue No.III I have held that the said Will dated 10.02.1984 has not been proved in accordance with law. Therefore, the will dated 02.02.1974 will govern the question of succession to the property.
23. In view of the subsequent will dated 02.02.1974, the earlier Wills are no effect. Therefore, what is the share of the plaintiff in the suit property is to be decided. Under the will dated 02.02.1974, the plaintiff, the first defendant and the second defendant are each entitled to 1/3rd share in the suit properties. In so far as the share of the first defendant is concerned, in view of the Judgment in O.S.A.No.301 to 303 of 2007, no decision can be arrived at in this suit. Therefore, the claim of defendants 4 and 5 to the 1/3rd share of in the first defendant, will have to be decided in testamentary proceedings if any to be launched by the defendants 4 and 5 or any other proceeding launched by the plaintiff against the defendants 4 and 5. In so far as the 1/3rd share of the second defendant is concerned the third defendant are claimed that she has left will dated 22.1.2001 in favour of the third defendant and it is also stated that third defendant had filed application for grant of probate which has been converted into a Testamentary Original Suit and the same is pending on the file of this Court.
24. In view of the pendency above said of the testamentary Original Suit claims of the parties to the 1/3rd share of the second defendant will have to be decided only in those proceedings.
25. The third defendant filed two original Wills dated 24.4.1965 and 15.9.1963 said to have been executed by Mrs. Elie John, none of the attesting witnesses have been examined. I have already concluded that the will dated 2.2.1974 executed by Mrs.Elie John is true and valid. Therefore, those wills are of no consequence.
26. It is a contention of the plaintiff that Leelie Seetharaman converted herself as a Hindu and she got married to one W.S.Seetharaman,the third defendant herein under the "Arya Samaj System". She had no children. After her death, the said W.S.Seetharaman got himself impleaded as 3rd defendant claiming Leeli's share. It is claimed that the plaintiff originally instituted the suit based on succession under the Indian Succession Act. Therefore, the plaintiff as a co-owner under Will, dated 02.02.1974 is deemed to be joint possession with the other co-owners. Hence, issues Nos.I&II answered in favour of the plaintiff.
27. Though the plaintiff has claimed = share claiming that on the death of the second defendant intestate her interest in the property devolved him and the 1st defendant. Even assuming the Will dated 02.02.1974 is disbelieved and the other Wills having not been proved in accordance with law, it will be intestate succession under the Indian Succession Act. The plaintiff as well as the defendants 1 and 2 would be the heirs of the deceased Elie John. Each one of them who get 1/3rd share. The father of the plaintiff having died after his mother in 1985, he would have inherited 1/3rd share on the death of his mother. The fact that the plaintiff is the sole heir of Mr.K.John is not disputed.
28. The learned counsel for the 5th defendant would contend that the father of the plaintiff K.John was adjudged an insolvent in I.P.No.68 of 1965 on 22.12.1965. Therefore, he would not be entitled to succeed to the estate of his mother upon her death.
29. The copy of the adjudication in I.P.No.68 of 1995 has been marked as Ex.D6, which shows that the said order of adjudication was annulled by an order dated 11.07.1969. The effect of an annulment under
Section 23 of the Presidency Towns Insolvency Act will have to be seen.
Section 23 reads as follows:-
23.Proceedings on annulment:- Where an adjudication is annulled, all sales and dispositions of property and payments duly made, and all acts therefore done, by the official assignee or other person acting under his authority, or by the Court, shall be valid, but the property of the debtor who was adjudged insolvent shall vest in such person as the Court may appoint, or, in default of any such appointment, shall revert to the debtor to the extent of his right or interest therein on such terms and subject to such conditions (if any) as the Court may declare by order.".
30. While, considering the effect of annulment, in the decision reported in AIR 1997 SUPREME COURT 1275 (Arora Enterprises Ltd and others Vs.Indubhushan Obhan and others) the Hon'ble Supreme Court has observed as follows:-
Provincial Insolvency Act (5 of 1920),
Section 35- "Adjudication as insolvent and Annulment effect and property gets revest in insolvent retrospectively and that however cannot automatically render judicial orders passed in suit filed against insolvent non est or ineffective and suit which has abated against legal heirs of insolvent because of refusal by Court to implead legal heirs and does not get revived by annulment of insolvency".
The provisions of
Section 23 of the Presidency Towns Insolvency Act and
Section 35 of the Provincial Insolvency Act are in-parimateria
31. In view of the above categorical pronouncement, the effect of annulment would be that the father of the plaintiff K.John did not suffer any disqualification from inheriting the property, on the death of his mother. Therefore, even in the absence of the will dated 2.2.1974 and the other Wills having not been proved in accordance with law, the plaintiff would be entitled to 1/3rd share inherited by his father on his death in the year 1985. The plaintiff has not let in evidence to show the existence of the movables described under schedules C&D, hence the suit will stand dismissed in respect of the movables described schedules 'C' and 'D'.
32. Therefore, the conclusion is that the plaintiff would be entitled to a preliminary decree declaring his 1/3rd share in the suit properties. His claim to the remaining 2/3rd share namely 1/3rd share of Appu John and 1/3rd share of Leelie Seetharam are left open to be decided in the testamentary proceedings which are pending.
33. In the result, the suit is decreed and the plaintiff will be entitled to a preliminary decree, declaring his 1/3rd share in the suit properties. However, in the circumstances of the case, there will be no order as to costs.
02.01.2018 nvi Index: Yes Speaking order Internet: Yes nvi List of the Witnesses examined on the side of the Plaintiff:
P.W.1 Mr.V.K.John P.W.2 Mr.Abraham Jose List of Exhibits marked on the side of the Plaintiff:
Exhibit No. Description Ex.P1 Birth certificate of plaintiff, dated 21.03.1968 Ex.P2 Note written and signed by plaintiff's grandparents, Dr.V.K.John and Mrs.Elie John, dated 20.07.1956 Ex.P3 Letter to 1st defendant with acknowledgement, dt.08.10.94 Ex.P4 Letter to 2nd defendant with acknowledgement,dt.08.10.94 Ex.P5 Letter from 1st defendant to plaintiff, dated 31.10.1988 Ex.P6 Drafts of POA and agreement to sell, dated 31.10.1988 Ex.P7 Letter from S.A.Rajan, Advocate to 1st defendant's Advocate, Mr.George, dated 07.11.1988 Ex.P8 Letter from plaintiff's grandmother Elie John to plaintiff's mother Lucy (in Malayalam), dated 29.09.1975 Ex.P9 Letter from plaintiff's grandmother Elie John to plaintiff's mother Lucy (in Malayalam), dated 11.07.1983 Ex.P10 Envelope addressed to plaintiff's mother Lucy,dt.12.12.1973 Ex.P11 Radio Licence issued to plaintiff, dated 03.12.1979 Ex.P12 Forged Will purportedly signed by Elie John, dt.10.02.1984 Ex.P13 Letter from P.K.Kurien (Rajappan) to D1, along with plaintiff's reply dated 06.12.1994 to him, dated 03.12.1994 Ex.P14 series Letter from plaintiff's grandmother's sister's daughter Mrs.Gracie George to plaintiff, along with three letters written by D3 to her,dated 01.02.2002 Ex.P15 series Letter from Madras Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd to Plaintiff, along with letter dated 21.09.2002 from D3, dated 02.11.2002 Ex.P16 Counter affidavit filed by S.P.Goenka in Contempt Petition No.632 of 2003 - 2004 Ex.P17 High Court order in Cont.Petition No.632 of 2003, dated 25.02.2005 Ex.P18 Will executed by plaintiff's grandmother Elie John, dated 20.04.1966 Ex.P19 Will executed by plaintiff's grandmother Elie John, dated 02.02.1974 Ex.P20 Letter from plaintiff's grandmother Elie John to plaintiff's father and plaintiff, dated 13.05.1966 Ex.P21 Photocopy of Voter's ID card of P.W.2, dated 17.12.1998 Ex.P22 Photocopy of certificate issued by Principal, Loyola College to P.W.2, dated 03.08.1974 List of the Witnesses examined on the side of the Defendants:
Certified copy of Settlement Deed No.1131/1957 from Mrs.Elie John in favour of Kuruvilla John, dated 24.10.1957 Ex.D18 Certified copy of Settlement Deed No.2019/1958 from Mrs.Elie John in favour of Kuruvilla John, dated 19.11.1958 Ex.D19 Certified copy of Sale Deed No.3110/1961 from Kuruvilla John in favour of Mrs.Elie John, dated 12.10.1961 Ex.D20 Certified copy of Release Deed No.1170/1964 from Kuruvilla John in favour of Mrs.Elie John, dated 18.04.1964 Ex.D21 Certified copy of Sale Deed No.1171/1964 from Mrs.Elie John and Kuruvilla John in favour of K.R.Ananthakrishnan, dated 18.04.1964 Ex.D22 Photocopy of plaint in C.S.No.1230 of 1995, dated 28.07.1995 Ex.D23 Photocopy of fair order in O.A.No.874 and 875 of 1995, dated 12.10.1995 Ex.D24 Photocopy of decretal order in O.A.No.874 &875/1995, dated 12.10.1995 Ex.D25 Photocopy of letter from plaintiff's counsel to Advocate of Taas Foundation, dated 05.05.1995 Ex.D26 Photocopy of plaintiff's written statement filed in C.S.No.1230 of 1995 - 1995.
02.01.2018 nvi R.SUBRAMANIAN,J.
nvi To The Sub Assistant Registrar, Original Side, High Court, Madras.
Judgment C.S.No.423 of 1995 02.01.2018