MADRAS HIGH COURT
P.KUPAMMAL VS KESAVAN ON
18 NOVEMBER, 2019
Summarised
Judgement (Scroll for Complete Judgement)
Facts of the Case:
The case of the plaintiffs is that the
property situate at Door No.94, Plot No.429, 7th Cross Street, Trustpuram,
Pullyur Village, Kodambakkam, Chennai 600 024 in T.S.No.26, Block No.26
measuring an extent of 880 sq.ft. belonged to them. Originally, the said
property was allotted by the Tamil Nadu Slum Clearance Board (in short, “the
TNSCB”) to the first plaintiff's father, viz., Ponnan, who died on 01.03.1998,
leaving behind his wife Kathayee Ammal and the first plaintiff. After the
demise of the said Ponnan, the first plaintiff's mother Kathayee Ammal got a
sale deed executed in her favour on 05.08.2005 and registered as Document
No.3281 of 2005.
During the life time, the plaintiff's
father, Ponnan had put up a hut in an extent of 380 sq.ft in the front portion
and a tiled house in an extent of 400 sq.ft. in the rear portion of the suit
property and they were living there. The defendant is the nephew of the first
plaintiff's father. The said Kathayee Ammal, the mother of the first plaintiff,
died on 02.05.2006 leaving behind the sole surviving legal heir, namely, the
first plaintiff and she continued to be be in possession of the property.
It is also stated that the first
plaintiff, out of love and affection, had settled the entire "A"
schedule property in favour of her three children. It is stated by the first
plaintiff that during the life time of her father-Ponnan, he had permitted the
defendant, who is his nephew, to occupy the front portion of the suit property.
Thus, the defendant was in occupation of the front portion of the property
measuring an extent of 380 sq.ft, which is described as "B" schedule
property in the plaint.
Observation of Court:
In view of the findings rendered qua
additional issue No.(i) and (ii), issue No.1 is answered against the defendant
holding that the defendant cannot be said to be the absolute owner of an extent
of 380 sq. ft. forming part of A schedule property as mentioned the B Schedule
property. Thus, this issue is answered in favour of the plaintiffs. Issue Nos.2
to 4:
The first plaintiff became absolute owner
of A schedule, which includes B schedule property. Accordingly, the Settlement
Deed executed by her in favour of her children, who are arrayed as plaintiffs 2
to 4, is valid and the plaintiffs are entitled to the relief of delivery of
vacant possession of B schedule property from the defendant. Thus, issue Nos.2
to 4 are also answered against the defendant favouring the plaintiffs.
Judgement:
In view of the above findings, C.S.No.562
of 2011 is decreed, as prayed for. Consequently, T.O.S.No.25 of 2017 is also
decreed as prayed for. As a corollary, T.O.S.No.13 of 2015 is dismissed.
------------------------------------------------------
Complete Judgement
MADRAS HIGH COURT
P.KUPAMMAL VS KESAVAN ON
18 NOVEMBER, 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.11.2019
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
C.S.No.562 of 2011
and T.O.S.No.13 of 2015 and 25 of 2017
C.S.No.562 of 2011 :
1.
P.Kupammal
2. V.Padma
3. V.Meena
4.
G.Thambidurai
... Plaintiffs
-vs-
Kesavan
... Defendant
T.O.S.No.13 of 2015 (in O.P.No.222 of 2011 ) :
P.Kesavan .. Petitioner
-vs-
G.Kuppammal .. Respondent
T.O.S.No.25 of 2017 (in O.P.No.219 of 2017 ):
P.Kuppammal .. Petitioner
-vs-
Kesavan
.. Respondent
PRAYER
in C.S.No.562 of 2011 : Plaint filed under Order IV Rule 1 of Original Side
Rules, read with Order VII Rule 1 of C.P.C praying for (a) declaring that the
1st plaintiff is the absolute owner of the B Schedule property morefully
described in the schedule hereunder (b) directing the defendant to deliver
vacant possession of the schedule B property morefully described in the
schedule hereunder to the plaintiff (c) for permanent injunction restraining
the defendant and his men, servants, agents and anybody acting on behalf of him
from alienating, encumbering or otherwise in the schedule B property and (d)
direct the defendants to pay the costs of the suit.
PRAYER
in T.O.S.No.13 of 2015: Petition filed under Sections 232, 255 and 276 of
Indian Succession Act XXXIX of 1925 for the grant of Letters of Administration.
PRAYER
in T.O.S.No.25 of 2017: Petition filed under Sections 232 and 276 of Indian
Succession Act XXXIX of 1925 for the grant of Letters of Administration.
***
For Plaintiffs in C.S. No.562/11: Mr.Praveen Alexander and T.O.S.No.25/2017
& For Defendant in T.O.S.No.13/15 For Defendant in C.S.No.562/11: Mr.Asif
Ali and T.O.S.No.25/17 & For Plaintiff in T.O.S.No.13/2015 COMMON JUDGMENT
The suit in C.S.No.562 of 2011 is filed for declaration that the first
plaintiff is the absolute owner of the 'B' schedule property; for permanent
injunction restraining the defendant and his men, servants, agents and anybody
acting on behalf of him from alienating, encumbering or otherwise in the schedule
B property; and for direction to the respondent to deliver the vacant
possession of the schedule B property.
2.
The case of the plaintiffs is that the property situate at Door No.94, Plot
No.429, 7th Cross Street, Trustpuram, Pullyur Village, Kodambakkam, Chennai 600
024 in T.S.No.26, Block No.26 measuring an extent of 880 sq.ft. belonged to
them. Originally, the said property was allotted by the Tamil Nadu Slum
Clearance Board (in short, “the TNSCB”) to the first plaintiff's father, viz.,
Ponnan, who died on 01.03.1998, leaving behind his wife Kathayee Ammal and the
first plaintiff. After the demise of the said Ponnan, the first plaintiff's
mother Kathayee Ammal got a sale deed executed in her favour on 05.08.2005 and
registered as Document No.3281 of 2005. During the life time, the plaintiff's
father, Ponnan had put up a hut in an extent of 380 sq.ft in the front portion
and a tiled house in an extent of 400 sq.ft. in the rear portion of the suit
property and they were living there. The defendant is the nephew of the first
plaintiff's father. The said Kathayee Ammal, the mother of the first plaintiff,
died on 02.05.2006 leaving behind the sole surviving legal heir, namely, the
first plaintiff and she continued to be in possession of the property. It is
also stated that the first plaintiff, out of love and affection, had settled
the entire "A" schedule property in favour of her three children. It
is stated by the first plaintiff that during the life time of her
father-Ponnan, he had permitted the defendant, who is his nephew, to occupy the
front portion of the suit property. Thus, the defendant was in occupation of
the front portion of the property measuring an extent of 380 sq.ft, which is
described as "B" schedule property in the plaint. The first plaintiff
alone is the sole legal heir of the deceased Ponnan and Kathayee Ammal, whereas
the defendant claimed to be their legal heir based on the fabricated legal
heirship certificate. Knowing the motive of the defendant, the plaintiff
requested him to vacate and handover the possession of the "B"
schedule property. While so, the defendant had approached this Court in
O.P.No.222 of 2011 for probate of the alleged Will said to have been executed
by the said Ponnan. In the said Will, the defendant has alleged that the said
Ponnan was his father, who had executed the Will in his favour. Earlier, the
defendant had also filed a suit in O.S.No.2813 of 2000 on the file of the City
Civil Court seeking permanent injunction against the first plaintiff in respect
of the "B" schedule property, which was dismissed on 31.01.2007. In
such circumstances, the suit has been filed by the plaintiffs.
3.
In the written statement, the defendant had denied all the facts contending
that the Ponnan was married to one Kathayee and out of the said wedlock, they
had one son by name P.Kesavan, who is the defendant and one daughter, viz.,
Kuppammal, who is the first plaintiff. According to the defendant, in respect
of "A" and "B" schedule properties, the said Ponnan had
executed his last Will and Testament dated 03.09.1997 and the same was
registered as Document No.126 of 1997 on the file of the Sub Registrar Office,
Kodambakkam. The defendant had also filed O.P.No.222 of 2011 for probate of the
same. According to the defendant, as per the said Will, bequest was made in
favour of the defendant to an extent of 380 sq.ft with superstructure forming
the front portion of "A" and "B" schedule properties with
the condition that the defendant's mother Kathayee Ammal shall be entitled to
enjoy the "A" schedule property throughout her life time as life
estate holder. Therefore, on the death of the said Kathayee Ammal on
02.05.2006, the defendant became the absolute owner of the property. One of the
witnesses, namely, Kumaresan had filed an affidavit before this Court for
probate of the Will. The defendant further denied the fact that he is the
nephew of the first plaintiff's father, but he is the son of the deceased Ponnan.
The other allegations set out in the plaint are all denied and the defendant
prayed for dismissal of the suit excepting 380 sq.ft. described in the
"B" schedule property. T.O.S.No.13 of 2015 :
4.
Originally, the defendant in C.S.No.562 of 2011 had filed O.P.No.222 of 2011
for grant of Letters of Administration for the Will dated 03.09.1997 executed
by the testator C.Ponnan. As the Will was resisted by the respondent, the same
was converted into T.O.S.No.13 of 2015. In the said O.P., the petitioner-
Kesavan had stated that the property was allotted in favour of C.Ponnan by the
TNSCB on 09.12.1983, who had taken possession of "A" and
"B" schedule properties and constructed a residential house. The said
Ponnan was married to one Kathayee Ammal and out of the said wedlock, Kesavan
and Kuppammal were born. It is further stated that the testator, Ponnan had
executed a last Will and Testament on 03.09.1997, which was registered as
Document No.126 of 1997 on the file of the Sub Registrar Office, Kodambakkam.
As per the Will, the testator Ponnan had bequeathed an extent of 380 sq.ft. of
land with superstructure thereon forming the front portion of the "A"
schedule property in favour of the petitioner with the condition that the
petitioner's mother Kathayee Ammal i.e., wife of the testator, shall be
entitled to enjoy the property during her life time and thereafter, the
petitioner would become the absolute owner. As the said Kathayee Ammal died on
02.05.2006, the petitioner had become entitled to the said property.
T.O.S.No.25 of 2017 :
5.
O.P.No.219 of 2017 was filed by Kuppammal, who is the first plaintiff in
C.S.No.562 of 2011 for grant of Letters of Administration of the Will of the
deceased testatrix dated 05.04.2006. In the said petition, it is stated that
the said Kathayee Ammal, who is the wife of the late Ponnan and the mother of
the petitioner- Kuppammal, had purchased the land measuring an extent of 880
sq.ft. from the TNSCB by way of a registered Sale Deed dated 05.08.2005. There
was a hut put up in an extent of 380 sq.ft in the front portion and a tiled
house measuring 400 sq.ft in the rear portion of the schedule mentioned
property. The said Kathayee Ammal during her lifetime wrote a Will dated
05.04.2006 and the same was registered as document No.40 of 2006 bequeathing
the entire schedule property in favour of the petitioner. The said Kathayee
Ammal died on 02.05.2006. As per the Will, Kuppammal is the sole surviving
legal heir and she is in possession of the schedule mentioned property. It is
stated that there is no executor appointed under the said Will and the Will was
executed by the said Kathayee Ammal out of her own volition without any
coercion or undue influence. The said Will was attested by one Murugesan and
another. The respondent has been making false claims, as if he is the brother
of the petitioner and claiming right through the alleged Will executed by the
petitioners' father Ponnan and also filed O.P.No.222 of 2011. The present
Original Petition was converted into T.O.S.No.25 of 2017 and the said T.O.S was
also resisted by the defendant claiming that he is the son born out of the
wedlock between the Ponnan and Kathayee Ammal.
6.
On 15.07.2013, in C.S.No.562 of 2011, this Court framed the following issues
for consideration :
“1.
Whether the defendant has become an absolute owner of an extent of 380 sq. ft.
land with superstructure thereon situated at No.94, in Plot No.429, 7th Cross
Street, Trustpuram, Kodambakkam, Chennai-600 094, forming the front port of A
& B Schedule property and more fully described in the A-Schedule property
by virtue of the registered Will dated 03.09.1997 executed by C.Ponnan, the
father of the first plaintff and the defendant granting life estate to their
mother Kathayee ?
3.
Whether the first plaintiff is the absolute owner of the B-Schedule property ?
4.
Whether the plaintiffs are entitled to the relief of seeking the first
defendant to deliver vacant possession of Schedule B property ?”
7.
On 11.12.2015, the following additional issues were framed in C.S.No.562 of
2011 and T.O.S.No.13 of 2015 for determination :
i.
Whether the Will dated 03.09.1997 executed by late C.Ponnan is genuine or not?
ii.
Whether the Will dated 03.09.1997 executed by late C.Ponnan is surrounded by
any suspicious circumstances? iii. Whether the plaintiff is biological son of
late C.Ponnan and Kathayee Ammal?
iv.
Whether late C.Ponnan ws bequeated the property as the true owner?
v.
To what relief the parties are entitled to?
8.
Based on the directions of this Court dated 26.10.2017, the Hon'ble the Chief
Justice vide order dated 30.01.2018 directed the Registry to tag T.O.S.No.25 of
2017 along with C.S.No.562 of 2017 and T.O.S.No.13 of 2015 and post it for
trail.
9.
During the trial, on the side of the plaintiffs, the first plaintiff examined
herself as P.W.1 and also examined P.Ws.2 to 5 and marked Exs.P.1 to P.14. The
defendant examined himself as D.W.1 and marked.
10.
Heard the learned counsel on either side and perused the materials placed
before this Court.
11.
For the sake of convenience, the parties are referred to hereinafter as per
their ranking in C.S.No.561 of 2011. Additional Issue No.(iii) :
12.
Whether the plaintiff (the defendant in C.S.No.562 of 2011) is the biological
son of late C.Ponnan and late Kathayee Ammal ?
12.1.
The issue in the suit revolves around 880 sq.ft of land, which was allotted to
one C.Ponnan by the TNSCB. After his death, the TNSCB executed a Sale Deed in
favour of his wife Kathayee Ammal and got it registered on 05.08.2005. The
allotment was made in the year 1983 and the death of Ponnan was on 01.03.1998.
Thereafter, the sale was effected in the year 2005. It is the case of the first
plaintiff that the defendant is not born to her parents, namely, Ponnan and
Kathayee Ammal, but he is the son born to one Maari and Kannamma. On his own
imagination, he called himself that he was born to Ponnan and Kathayee Ammal.
It is the admitted case of the first plaintiff that the defendant was allowed to be in possession of 380 sq.ft.
even during the life time of her father. The first plaintiff has produced the
death certificate of Ponnan and also the legal heirship certificate of Ponnan
dated 20.06.2000, which is marked as Ex.P.-5. A perusal of the legal heirship
certificate in Dis/C4/18004/2000 reveals that the same was issued by the
Tahsildar, Egmore - Nungambakkam Taluk, Chennai, in which, Kathayee Ammal is
described as his wife and the Kuppammal- the first plaintiff is described as
daughter. The name of the defendant does not find a place in the said legal
heirship certificate. There is no reason given by the defendant for not
including his name as legal heir of deceased Ponnan. If not the plaintiff at
least, the mother Kathayee Ammal would not have given up her own son, as
alleged by the defendant. The defendant also had not bothered about it and allowed
Kathayee Ammal to complete the payment of installements and take the sale deed
in her favour. On 02.05.2006, Kathayee Ammal, wife of Ponnan died. Once again,
the first plaintiff Kuppammal had obtained the legal heirship certificate in
Ne.Mu.E4/18489/2011 issued by the Tahsildar, Egmore-Nungambakkam. In the said
legal heirship certificate also, only Kuppammal was shown to be the sole heir
to the deceased Kathayee Ammal. The defendant had also produced the legal
heirship certificate dated 06.07.2006, wherein, Kuppammal, the first plaintiff and the Kesavan, the defendant are shown as
legal heirs and it is also mentioned that Tmt.Kathayee Ammal died as early as
on 02.05.2006.
12.2.
As there has been discrepancy in the legal heir ship certificates issued, the
plaintiff has examined the Special Tahsildar, Egmore-Taluk. The Tahsildar, who
has been examined as P.W.2, stated as follows :
“......
Usually, the legal heir ship certificate, if applied, will be issued in one
month at maximum. Prior to my joining as the Tahsildar, Egmore Taluk in the
year 2014, 3 legal heir ship certificates dated 20.06.2000, 06.07.2006 and
15.07.2011 were issued by my predecessors, in respect of the deceased Ponnan.
It is true that in the legal heir ship certificate dated 20.06.2000, wife and
daughter of the deceased Ponnan, who died on 01.03.1998, were mentioned as his
legal heirs. Based on the death certificate of Ponnan, Family Card of Ponnan
and Verification Report submitted by the then Zonal Deputy Tahsildar, the legal
heir certificate dated 20.06.2000 in respect of the deceased Ponnan was issued.
As per the legal heir ship certificate 20.06.2000, it was issued for the
purpose of the transfer of Tamilnadu Slum Clearance Board's Allotment.
Subsequently, Kathaiyammal died on 02.05.2006. The legal heir ship certificate
dated 15.07.2011 in respect of Ponnan was issued on the basis of the death
certificate of Kathaiyammal, Electricity Consumption Card standing in the name
of Kuppammal, Electroal I.D. Card of Kathaiyammal, death certificate of Ponnan,
Report of the then Zonal Deputy Tahsildar, Affidavit of Kuppammal, Sale deed
dated 09.08.2005 executed in favour of Kathaiyammal by the Tamilnadu Slum
Clearance Board, registered as Doc.No.3281 of 2005 on the file of the SRO,
Kodambakkam. In the Ration Card, which was submitted for Ponnan and Kathiyammal
find a place. ....” From the above evidence, it appears that the legal heirship
certificate for the death Ponnan and Kathayee Ammal were obtained by the first
plaintiff based on the electricity consumption card, electrol I.D.Card, the
sale deed executed in favour of Kathayee Ammal by the TNSCB and also the ration
card, which was submitted for issuance of legal heirship certificate.
12.3.
So far as the legal heirship certificate, that was produced by the
defendant-Ex.D.2 is concerned, the same is based on the allotment order issued
by the TNSCB and the ration card of Kesavan. In this regard, the Tahsildar /
P.W.2, stated as follows :
“....
Along with the application submitted by Mr.Kesavan for issuance of legal heir
ship certificate in respect of the deceased Ponnan, he submitted 2 death
certificates of Ponnan one was issued on 23.11.1999 and another one was issued
on 15.06.2006, death certificate of his mother Kathaiyammal, allotment order
issued by Tamilnadu Slum Clearance Board, Ration Card of Kesavan, in which the
names of Kesavan, Muniyammal, Arun and Saravanan find a place. The legal heir
ship certificate dated 06.07.2006 was issued on the basis of the aforesaid
documents submitted by Mr.Kesavan and also on the basis of the report submitted
by the then Zonal Deputy Tahsildar.
Nos.13
of 2015 & 25 of 2017 The ration card submitted by the defendant for the
purpose obtaining the legal heirship certificate only contained the names of
Kesavan, Muniyammal, Arun and Saravanan. After the submission of the
application form, there should be an enquiry by the Revenue Inspector or the
Zonal Deputy Tahsildar. But the Legal Heirship Certificate was issued to the
defendant based on the report submitted by the then Zonal Deputy Tahsildar,
which is not based on the documents submitted. The name of Kesavan, though
living in the portion of the suit premises, had not been included. The
Tahsildar has also given a report without verifying the actual facts. Not only
the Tahsildar had failed to advert to the fact that earlier legal heirship
certificate has been issued to the first plaintiff for the death of the same
Kathayee Ammal, wherein, the said first plaintiff is shown as the only legal
heir of the Kathayee Ammal. Other than the legal heirship certificate, the
defendant had produced Ex.D.6, which is the Burial Certificate. In the said
certificate against the column name and address of the Informer, the
defendant's name has been mentioned, which does not mean that the defendant
would be the relative of the deceased therein, as it is only the name of the
informer and not the relative. Therefore, the said certificate also will not
help the defendants to prove his paternity.
12.4.
It is pertinent to mention that except examining himself as the defendant has
not examined any other person to prove his paternity. Even in the
cross-examination, the defendant denied, when confronted with the question that
the name of his biological father is Maari, who is the paternal uncle of the
plaintiff. Thus, in the absence of any evidence to show that he is the son of
Ponnan and Kathayee Ammal, the irresistible conclusion is that he is not the
son born to Ponnan and Kathayee Ammal. Accordingly, the additional issue
No.(iii) is answered in favour of the plaintiffs and against the defendant.
Additional Issue Nos.(i), (ii) and (iv) :
13.
The defendant/plaintiffs in T.O.S.No.13 of 2015 has produced the Will dated
03.09.1997 marked as Ex.D.8. The said Will is registered as Document No.126 of
1997 before the Sub Registrar Office, Kodambakkam. As per the said Will,
Ponnan, who is the father of Kuppammal / the first plaintiff had been alleged
to have executed the Will in favour of the defendant Kesavan as well as the
first plaintiff Kuppammal. In the said Will, Ponnan's wife Kathayee Ammal is
given the life interest and thereafter, A Schedule was given to P.Kesavan/the
defendant and B Schedule was given in favour of P.Kuppammal/the first plaintiff
absolutely. The Testator of the Will dated 03.09.1997 died on 01.03.1998. On
his death, the alleged Will ought to have come into force. The property
mentioned in the Will is the one, which was allotted in his name by the TNSCB.
While he was paying the monthly installments, he died. Thereafter, his wife
Kathayee Ammal paid the balance of the installments and obtained the sale deed
from the TNSCB on 05.08.2005 under Ex.P.3. To obtain the sale deed Kathayee
Ammal had produced the legal heir certificate-Ex.P.5, as per which, Kathayee
Ammal and the first plaintiff - Kuppammal alone were shown as legal heirs of
the deceased Ponnan. Based on the same, the TNSCB had executed the sale deed in
favour of the Kathayee Ammal on 05.08.2005. If really the deceased Ponnan had
executed a Will in favour of the defendant and when the said Ponnan died on
01.03.1998, he would have taken steps to get the sale deed registered in his
favour, as indicated in the Will. But the defendant had not taken any steps to
either probate the Will or claim his half share as per the Will. He had only
produced the said Will as a counter-blast for the suit, when the plaintiff had
claimed title to the same. Whether the said Will is true and genuine or not had
to be decided in the manner known to law.
14.
A perusal of the said Will dated 03.09.1997 shows that there were two
Attestors, namely, one P.Kumaresan and P.Duraikannan.
The said Kumaresan / the first Attestor, has given his address as “Grandipuram
Village in Dindivanam Taluk”. The second witness is from Trustpuram,
Chennai-24, where, the Testator himself was living. There is no reason
forthcoming from the defendant as to why the first Attestor is brought from
Dindivanam and also nothing is stated as to how he is known or related to the
deceased Ponnan. It is also not explained as to why none of the Attestors were
examined to prove the Will. It is not also pleaded that the Attestors are not
alive or available to be examined. Thus, the defendant could not prove the
Will, which is the subject matter in T.O.S.No.13 of 2015, as the execution of
the same is surrounded by suspicious circumstances.
15.
As discussed earlier, the Ponnan was the original allottee of the suit property
by the TNSCB as per the Chennai Metropolitan Development Scheme. After his
death on 01.03.1998, at the request of his wife Kathayee Ammal, on production
of the required documents, the allotment was transferred in her name. After the
date of transfer, i.e., from 21.10.2000, which is evidenced by the memo issued
by the TNSCB as per Ex.P.2, the said Kathayee Ammal was paying the further
installments. Once the installments were paid, the sale deed was executed by
the TNSCB in favour of Kathayee Ammal on 05.08.2005.
The
case of the defendant is that the said Ponnan had bequeathed the suit property
equally between himself and the first plaintiff. The said Ponnan died in the
year 1998, on which date, the installments of the sale consideration was not
paid in full and the said Ponnan had not become the owner of the property.
Admittedly, on the death of the Ponnan, Kathayee Ammal, who is his wife, had
got the allotment transferred in her name and completed the payment of
installments towards the sale consideration. Thereafter, on 05.08.2005, the
TNSCB had executed the sale deed in her favour. Therefore, on the date when the
Will under Ex.D.8 was executed, Ponnan was not the owner of the property, as
the ownership continued only with the TNSCB. A reading of the Will also says
that “vd; bgaUf;F xJf;fPL fpilf;fbgw;Wk; md;WKjy; ehd; vd;Dila mDgtj;jpy;.
jkpH;ehL FoirgFjp khw;W thhpaj;jpw;F brYj;j ntz;oa kid thp tifawhf;fis ghf;fp
,d;wp brYj;jpf;bfhz;Lk;. Foir tPl;oid ehd; vd;Dila brhe;j brytpy;
mikj;Jf;bfhz;Lk; ....”. Therefore, it is only the allotment, that was alone
made, in favour of the said Ponnan. When the Testator himself did not have
absolute right over the suit property, he could not have executed the Will, as
alleged by the defendant and even he executed such a Will, the same is invalid
in the eye of law.
16.
When Ponnan executed the alleged Will nothing is mentioned about his wife, who
was with him throughout. Even if no bequest is made in her favour, it is but
natural to atleast mention the reason for excluding his wife. Having not
mentioned the name of his wife Kathayee Ammal and the Testator being only the
allottee and not yet become the full fledged owner could not have made the
bequest as alleged, which leads to suspicion. As found supra, the Attestors or
the scribe are not examined in proof of the Will. There is also no explanation
forthcoming from the defendant for not producing the Will before the death of
Kathayee Ammal, when she died only on 02.05.2006. Thus, the version of the
defendant about the execution of the Will is highly improbable and the whole
evidence in this regard is unsatisfactory. The defendant having taken active
part in the execution, the onus is very heavy on him to remove the suspicion,
which is not discharged by the defendant.
17.
From the date of Ponnan's death, i.e., from 01.03.1998, till the date of the
sale deed executed in favour of Kathayee Ammal on 05.08.2005, the defendant had
not taken steps even to find out whether the installments have been paid or
anybody is paying the balance of the sale consideration. Even in the Legal
heirship certificate obtained by the first plaintiff for the death of Ponnan,
the names of the wife of the deceased, viz., Kathayee Ammal and daughter
Kuppammal have been shown as legal heirs and the name of the defendant was not
included. The defendant also not taken steps to get his name included in the
said certificate. Kathayee Ammal, wife of Ponnan, also died on 02.05.2006. Even
in the legal heirship certificate obtained by the first plaintiff for the death
of Kathayee Ammal, the first plaintiff-Kuppammal alone is shown as the sole
legal heir, which had not been challenged by the defendant. It is also not the
case of the defendant that after the death of Ponnan, he continued to pay the
installments to get the sale deed executed in his name or in the name of
Kathayee Ammal. When there is absolutely no relationship between the defendant
and his alleged parents Ponnan and Kathayee Ammal, the claim of the defendant
is not sustainable.
18.
When Ponnan himself had not become the complete owner of the property on the
date of his death, it is not possible for him to execute the Will over the suit
property and on the other hand, he had got no right to deal with the same.
Therefore, the bequest made by the late Ponnan of the suit property, not being
the true owner, is not valid in the eye of law. In view of the above
discussion, the additional issue
(i),
(ii) and (iv) are also answered in favour of the plaintiffs and against the
defendant.
19.
In T.O.S.No.25 of 2017, the issue “Whether the Will dated 05.04.2006 executed
by the plaintiff's mother Kathayee Ammal is genuine or not ? is required to be
determined.
19.1.
The first plaintiff has produced a Will of her mother dated 05.04.2006
bequeathing all her rights in the suit property in favour of the first
plaintiff alone. The said Will is also registered before the Sub Registrar
Office, Kodambakkam, as Document No.40 of 2006. The said Will is attested by
one Murugesan and one Shankar. One of the Attestors is died and other Attestor
Murugesan has been examined as P.W.5. The Attestor Murugesan in the chief
examination filed in the form of proof affidavit has stated as follows :
“2.
That on the 5th day of April, 2006, I was present together with one Shanmugam
at the house of Kathayee Ammal and we did then and there see the said deceased
set and subscribe her name at the foot of the testamentary paper in the Tamil
language and character hereunto annexed and marked with the letter A and
declare and publish the same as and for her last Will and testament.
3.
That thereupon, I this deponent and the said Shanmugam did at the request of
the said deceased and in her presence and in the presence of each other and all
being present at the same time, set and subscribed our respective names and
signatures at the foot of the testamentary paper as witnesses thereto.”
19.2.
The said chief examination of P.W.5 was not disturbed in the cross-examination
by the defendant. The witness had specifically stated that the suit property
belonged to the plaintiffs and they have been enjoying the same over a period
of 25 years. A party propounding the Will or otherwise making a claim under a
Will is seeking to prove the document. The courts are to refer to the statutory
provisions, which govern the proof of Will, viz., Sections 67 and 68 of the
Indian Evidence Act. These provisions prescribe the requirements and the nature
of proof which must be satisfied by the person, who relies on a document in the
Court of law. As the propounder of the Will, the first plaintiff has shown
satisfactory evidence that the Will was signed by the Testatrix and that the Testatrix
was in a sound disposing state of mind during the relevant point of time having
understood the nature and effect of the dispositions and put her signature in
the document on her own free-will. As the plaintiff has examined one of the
attestors, viz., Murugesan, in proving the signature/thump impression as
required in law, the finding is in favour of the plaintiff and against the
defendant.
19.3.
As the Will executed by Kathayee Ammal dated 05.04.2006 is true and genuine and
it is proved in the manner known to law, the plaintiff in T.O.S.No.25 of 2017
is entitled for issuance of letter of administration, as prayed for.
20.
In view of the findings rendered qua additional issue No.(i) and (ii), issue
No.1 is answered against the defendant holding that the defendant cannot be
said to be the absolute owner of an extent of 380 sq. ft. forming part of A
schedule property as mentioned the B Schedule property. Thus, this issue is
answered in favour of the plaintiffs. Issue Nos.2 to 4 :
21.
The first plaintiff became absolute owner of A schedule, which includes B
schedule property. Accordingly, the Settlement Deed executed by her in favour
of her children, who are arrayed as plaintiffs 2 to 4, is valid and the
plaintiffs are entitled to the relief of delivery of vacant possession of B
schedule property from the defendant. Thus, issue Nos.2 to 4 are also answered
against the defendant favouring the plaintiffs.
22.
In view of the above findings, C.S.No.562 of 2011 is decreed, as prayed for.
Consequently, T.O.S.No.25 of 2017 is also decreed as prayed for. As a
corollary, T.O.S.No.13 of 2015 is dismissed.
18.11.2019
gg Witnesses examined on the side of Plaintiffs :
P.W.1 -
P.Kuppammal
P.W.2 -
P.Selvam
P.W.3 -
Govindammal
P.W.4 -
Devaki
P.W.5 -
Murugesan
Witnesses
examined on the side of Defendant :
D.W.1
- Kesavan Documents marked on the side of the Plaintiffs : Ex.P.1 - 12.10.2000
- Order passed by Tamil Nadu Slum Clearance Board Ex.P.2 - 21.10.2000 - Memo
issued by Tamil Nadu Slum Clearance Board Ex.P.3 - 05.08.2005 - Sale Deed by
Tamil Nadu Slum Clearance Board in favour of Kathayee Ammal Ex.P.4 - 01.03.1998
- Death Certificate of Ponnan Ex.P.5 - 20.06.2000 - Legal Heirship Certificate
for the death of Ponnan Ex.P.6 - 02.05.2006 - Death Certificate of Kathayee
Ammal Ex.P.7 - 15.07.2011 - Legal Heirship Certificate for the death of
Kathayee Ex.P.8 - 31.01.2007 - Judgment in O.S.No.2816/2000 Ex.P.9 - 06.04.2011
- Petition in O.P.No.222/2011 Ex.P.10- 05.04.2006 - Will Ex.P.11- 05.08.2011 -
Plaint in C.S.No.562 of 2011 Ex.P.12- 05.08.2011 - Affidavit of Attesting
Wtiness Murugesan in O.P.No.219 of 2017 Ex.P.13- 19.08.1998 - Voter ID of
Kathayee Ammal Ex.P.14- 15.02.1977 - Installment receipt to TNSCB Documents
marked on the side of the Defendant : Ex.D.1 - 25.03.1977 - Passbook of TNSCB
Ex.D.2 - 06.07.2006 - Legal Heir Certificate of Ponnan Ex.D.3 - 03.11.1995 -
TNSCB Receipt Ex.D.4 - 30.06.1980 - TC of the defendant Ex.D.5 - 09.09.1996 -
Community Certificate of the defendant Ex.D.6 - 02.03.1998 - Burial Certificate
of Ponnan Ex.D.7 - 31.01.2007 - Judgment in O.S.No.2813/2000 Ex.D.8 -
03.09.1997 - Will 18.11.2019
PUSHPA
SATHYANARAYANA, J.
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ABHISHEK 04012020
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