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Wednesday, October 18, 2017

MADURAI BENCH OF MADRAS HIGH COURT = suit for partition and separate possession = can not be considered as Exclusive possession = However, having regard to their claim that the third defendant is entitled only to 1/4th share, their exclusive possession pleaded by them cannot be taken as a plea of a stranger claiming exclusive right over the entire property but as a joint owner. Though the property is settled in favour of first plaintiff and first defendant under the Will Ex.A3, the possession and enjoyment of the first item of property by the third defendant cannot be taken as one by a person who is entitled to be in possession as an exclusive owner. It was only because Dr.Jayaraman died, suddenly in a road accident, the property is in the enjoyment of third defendant as a person living along with Dr.Jayaraman during his life time and not as a person having independent title ; Since the Hindu Succession (Amendment) Act, 2005, came after the death of Dr.Jayaraman and the succession opens immediately upon the death of Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the third defendant is entitled to 1/4th share in items 5 to 9. = State Amendment to the Hindu Succession Act, 1956.= As pointed out earlier, items 5 to 9 of the suit properties are allotted to Dr.Jayaraman in a family partition and it has been held by the trial Court that they are his ancestral properties. After the death of Dr.Jayaraman in the year 2002, his two daughters are entitled to equal share as that of Dr.Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr.Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956.

http://judis.nic.in/HCS/list_new2.asp?FileName=129549&Table_Main_Txt=cheordtext
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.10.2017
Reserved on: 02.01.2017
Delivered on: 09.10.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Appeal Suit (MD) No.291 of 2008
and
M.P.(MD)Nos.1 of 2008 and 1 of 2014

1.Ezhilmathi
2.Karthikeyan : Appellants / Defendants 2 & 3
-Vs-
1.Karthika : 1st Respondent/1st Plaintiff
2.Megalai : 2nd Respondent/2nd Plaintiff
3.Rohini : 3rd Respondent/1st Defendant
Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment made in O.S.No.167 of 2004, dated 24.04.2008 on the file
of the First Additional District Judge, Tiruchirappalli.
!For Appellants : Mr.S.Ramasamy
Senior Counsel
for AN.Ramanathan

^For Respondents 1&2: Mr.K.S.Vamsidhar
For Respondent 3 : Mr.S.Ramakrishnan

:JUDGMENT
The defendants 2 and 3 in O.S.No.167 of 2004 on the file of the
First Additional District Court, Tiruchirappalli, are the appellants in the
above appeal.
2.The respondents 1 and 2 in this appeal are plaintiffs 1 and 2
in the suit and third respondent in this appeal is the first defendant in the
suit.
3.The respondents 1 and 2 herein, as plaintiffs filed the suit in
O.S.No.167 of 2004 for partition and separate possession of + share in the
suit first item and for + share for the plaintiffs 1 and 2 in respect of
items 1 to 3 and item 10 of suit properties. Insofar as first item is
concerned, the plaintiffs also prayed for + share to the first defendant.
The plaintiffs also prayed for alternative relief for division of properties
item 1 to 3 and 10 of the suit properties into four equal shares and to allot
two shares to the plaintiffs and , share to the first defendant, in case, the
Court comes to the conclusion that the Will relied upon by them is held to be
not valid.
4.The first plaintiff is the daughter of second plaintiff who is
the first wife of Late Dr.Jayaraman. The first defendant is none else than
the sister of first plaintiff and the daughter of second plaintiff. The
second defendant in the suit is the second wife of Late Dr.Jayaraman and she
is also the sister of second plaintiff. The third defendant in the suit is
the son of Late Dr.Jayaraman through the second defendant.
5.The case of the plaintiff is that the suit first item was
purchased by Dr.Jayaraman by a registered sale deed dated 22.04.1981 and that
he constructed a clinic in the suit first item and was running the same in
the name and style of ?Krithika Nursing Home?. It is further stated that
Dr.Jayaraman executed a Will on 17.06.1986 bequeathing the suit first item to
his two daughters, namely, the first plaintiff and the first defendant. It
is not in dispute that Dr.Jayaraman died on 03.02.2002 in a road accident.
6.Though the suit was filed only in respect of suit first item,
the contesting defendants namely defendants 2 and 3 raised a plea stating
that all the properties of Dr.Jayaraman were not included in the suit.
Subsequently, the suit items 2 and 3 were included. Thereafter, the
defendants filed a petition to include other properties in the suit, namely,
items 4 to 9. Subsequently, item 10 in the suit schedule also included and
the same is a car bearing registration No.TN-45-Q-3838.
7.The case of the plaintiffs is that the suit items 1 to 3 are
the self-acquired properties of Dr.Jayaraman. The fourth item was included
in the suit schedule. It is the specific case of the plaintiffs that the
properties referred to in item 4 are the exclusive properties of the second
plaintiff, namely, the first wife of Dr.Jayaraman. It is also the case of
the plaintiffs that items 5 to 9 in the suit are the ancestral properties of
Dr.Jayaraman, who got the same in a family partition and that the third
defendant being the illegitimate son of Dr.Jayaraman through the second
defendant whose marriage is void, is not entitled to any share in the
ancestral properties.
8.The second defendant filed a detailed written statement which
was also adopted by the third defendant. It is the case of the appellants
that the third defendant along with second defendant is living in the suit
first item and that therefore, the suit for partition between the plaintiffs
and the first defendant, bye-passing the claim of third defendant is not
maintainable, as the relief of partition must be preceded by a relief for
recovery of possession from the third defendant.
9.It was further stated in the written statement that
Dr.Jayaraman married the second defendant, as he had no male child through
his first wife, namely, the second plaintiff. It is the case of the
defendants 2 and 3 that Dr.Jayaraman was living with them at Manapparai in
the suit first item ever since their marriage and that after the sudden and
sad demise of Dr.Jayaraman, defendants 2 and 3 continued to live in the
residential portion of suit first item whereas the plaintiffs and defendants
1 and 2 are living in Sakthi Nagar, Tiruchirappalli.
10.It is also the further case of the defendants 2 and 3 that at
the time of marriage between Dr.Jayaraman and second defendant, the second
plaintiff, namely, the first wife of Dr.Jayaraman pressurised Dr.Jayaraman to
settle the suit first item in her favour under threat, duress, intimidation
and coercion and Dr.Jayaraman was asked to settle the entire hospital
premises, namely, first item of suit property in favour of second plaintiff.
The Will alleged to have been executed by Dr.Jayaraman on 17.06.1986
bequeathing the suit first item in favour of the plaintiffs and first
defendant is specifically challenged by disputing the truth, validity,
execution and attestation of the Will dated 17.06.1986. Stating that the
Will dated 17.06.1986 is a concocted, fabricated and ante-dated document, it
was contended that the Will had been specially invented to knock away the
valuable properties from the hands of the third defendant. With regard to
the execution of the Will dated 17.06.1986, the contesting defendants /
appellants further relied upon the circumstances by which the petition for
divorce was presented by Dr.Jayaraman as against the second plaintiff on
16.06.1986. It was specifically pleaded that there was no occasion for
Dr.Jayaraman to execute the Will and further relied upon few circumstances
under which the Will came into existence. Though a specific plea was raised
by the appellants stating that the suit is bad for partial partition, by
inclusion of other properties which were allotted to Dr.Jayaraman under a
registered partition deed dated 28.02.1997, the said plea has now become
irrelevant.
11.The trial Court though framed originally certain issues only
in relation to the items 4 to 9, after hearing the arguments, framed the
following issues:
1.Whether the document which is marked as Ex.A3 is a Will or settlement deed
and whether it is validly executed by Dr.Jayaraman and further whether the
execution of the document is true and genuine?
2.Whether the 1st plaintiff and the defendants 1 and 2 are in joint
possession and enjoyment of the item 1 of the suit properties nad in case if
the Court decides that on 17.06.1986 document is a valid and enforceable then
whether the plaintiffs have to file a separate suit for recovery of
possession or not?
3.Whether the 2nd and 3rd defendants are entitled to share in the suit
properties?
4.To what relief the plaintiffs are entitled to?
12.Having regard to the pleadings and the evidence, the trial
Court observed that there is no dispute with regard to the character of suit
first item, as the self acquired property of Dr.Jayaraman. Since the claim
of + share by the first plaintiff and first defendant is only on the basis of
the Will, the trial Court considered the issue whether the document, namely,
the Will dated 17.06.1986, marked as Ex.A3 is a Will or settlement. Though
the document is styled as a settlement deed, since there was no transfer in
praesenti under the document, it was concluded by the trial Court that the
document Ex.A3 is only a Will. After referring to several judgments on this
issue, the trial Court observed that what was conveyed under Ex.A3 in favour
of plaintiff and first defendant should go to them only after the death of
Dr.Jayaraman. The trial Court found that Ex.A3 was executed as a Will,
though it was styled as a document of settlement. The trial Court thereafter
examined the truth and validity of the Will. Since the plaintiffs have
examined P.W.2, one of the attestors of the Will, his evidence was believed
by the trial Court, the trial Court had come to the conclusion that the Will
under Ex.A3 had been duly executed and attested in accordance with the
requirements of law.
13.The next question considered by the trial Court was regarding
the maintainability of suit for partition. A specific plea was raised by
the appellants stating that the suit for partition is not maintainable, as
the property is admittedly in the physical possession of the appellants, who
are not admitted as co-owners in respect of the suit first item. The plea of
appellants was negatived on the ground that the appellants themselves have
claimed , share in the suit first item by assuming that they are in joint
possession and that there is no necessity to file a separate suit for
recovery of possession.
As regards item No.4 of the suit property, the trial
Court held that out of three plots, plot Nos.71 and 72 are the exclusive
property of the second plaintiff and that plot No.73 is the property of
Dr.Jayaraman. Since the appellants have not proved that the entire sale
consideration came from Dr.Jayaraman, the plea of appellants was not accepted
by the trial Court. Pointing out that Dr.Jayaraman is an income tax assessee
and that if he had advanced money for the purchase of the property in the
name of the second plaintiff, it could have been stated so in his accounts
and that the non-production of such documents by defendants 2 and 3 would
show that plot Nos.71 and 72 are the absolute properties of second plaintiff.
Though the plaintiffs did not admit the right of appellants to claim share in
items 5 to 9 on the ground that they are the ancestral properties of
Dr.Jayaraman, in the plaint, they practically conceded before the trial
Court. As a result, the trial Court found that in respect of items 5 to 9,
the first plaintiff and first defendant are entitled to 5/12 share and the
second plaintiff and third defendant are entitled to each 1/12 share. Since
the claim for partition in respect of item No.10 was conceded, the plaintiff
was not given any relief insofar as item No.10. Thus, the plaintiffs and
first defendant were given + share in item No.1 of the suit properties.
Thus, preliminary decree was passed granting + share each in favour of the
first plaintiff and first defendant in respect of item No.1 and , share each
to the plaintiffs and first defendant in respect of items 2 and 3 of the suit
properties and each 5/12 share in items 5 to 9 of the suit properties to the
first plaintiff and the first defendant and 1/12th share each to the second
plaintiff and third defendant. The suit is also dismissed as against item 4
and item No.10. Even though Plot No.73 is held to be the property of
Dr.Jayaraman, no share is given to the third defendant.
14.Aggrieved by the preliminary decree for partition, the
appellants, who are the defendants 2 and 3 in the suit, have preferred the
above appeal.
15.Though the appellants have raised several grounds challenging
the findings regarding all the items in the suit schedule and regarding the
character of the document Ex.A3 and its truth and validity, the learned
Senior Counsel appearing for the appellants submitted that he has not
challenged any of the findings of the trial Court except the conclusion that
the suit is maintainable, without seeking a relief of recovery of possession
by paying ad valorem court fee.
16.The learned Senior Counsel appearing for the appellants
submitted that the suit first item is not claimed to be a property in
enjoyment of either the first plaintiff or the first defendant. The fact
that the defendants 2 and 3 are residing in the suit first item is admitted
even in the plaint. When the suit first item is claimed on the basis of the
Will whereby suit first item is exclusively given to the first plaintiff and
first defendant who are not in enjoyment it was argued by the learned Senior
Counsel that the suit for partition cannot be sustained. Though the third
defendant is recognised as the son of Dr.Jayaraman, through his second wife,
for granting equal share to the third defendant in respect of the self-
acquired properties of Dr.Jayaraman, the failure to give any share in one of
the plots, namely, Plot No.73 is not challenged before this Court by the
learned Senor Counsel for the appellants. The learned Senior Counsel for the
appellants submitted that the trial Court should have given 1/4th share to
the first defendant in respect of items 5 to 9 as it was granted in respect
of other items which are held to be self-acquired properties of Dr.Jayaraman.
Since the Hindu Succession (Amendment) Act, 2005, came after the death of
Dr.Jayaraman and the succession opens immediately upon the death of
Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the
third defendant is entitled to 1/4th share in items 5 to 9.

17.In order to appreciate the submission of the learned Senior
Counsel for the appellants as regards the maintainability of the suit for
partition in respect of first item of suit property, the following facts are
to be noted:
(a) The suit first item was purchased by Dr.Jayaraman by a
registered sale deed dated 22.04.1981 and it was the property in which he put
up his own clinic under the name and style of ?Krithika Nursing Home? and
practising medicine successfully till his death.
(b) Defendants 2 and 3 are residing only in the residential
portion of the building which was in upstairs.
(c) After the death of Dr.Jayaraman though it is stated in the
written statement that the suit first item is in possession of the third
defendant, the right of plaintiffs to claim a share in the property was not
disputed. In other words, the defendants have not claimed any exclusive
ownership over the suit first item. The third defendant's claim is that he
is also entitled to , share.

18.It is in the above background, the plea regarding the
maintainability of the suit has to be considered. The case of defendants 2
and 3 is that they were living with Dr.Jayaraman in the residential portion
of the clinic at first floor along with Dr.Jayaraman. D.W.1, namely, the
second defendant even in her chief examination stated that her son, the third
defendant, is entitled to , share in all the suit properties. After the
demise of Dr.Jayaraman, no doubt it is true that the appellants alone are in
enjoyment of the entire property. However, having regard to their claim that
the third defendant is entitled only to 1/4th share, their exclusive
possession pleaded by them cannot be taken as a plea of a stranger claiming
exclusive right over the entire property but as a joint owner. Though the
property is settled in favour of first plaintiff and first defendant under
the Will Ex.A3, the possession and enjoyment of the first item of property by
the third defendant cannot be taken as one by a person who is entitled to be
in possession as an exclusive owner. It was only because Dr.Jayaraman died,
suddenly in a road accident, the property is in the enjoyment of third
defendant as a person living along with Dr.Jayaraman during his life time and
not as a person having independent title
. Apart from the right of an
illegitimate son, who is also entitled to have a share in the property of his
father, the third defendant does not claim any other right. When the suit
was filed in 2004, the third defendant was still a minor and the possession
of appellants, in these circumstances, can only be treated as permissive.
The right of plaintiff as a co-owner entitled to seek partition was never
disputed by the third defendant. In such circumstances, the plea of
appellants that the suit itself is not maintainable without asking for
recovery of possession has no merits.
19.The learned Senior Counsel appearing for the appellants made
an attempt to establish that the document Ex.A3 is not a Will but a
settlement deed. A reading of the Will clearly discloses the fact that
Dr.Jayaraman wanted the document to come into effect only after his life
time. His intention was clear that the legatees under the Will do not get
any right during his life time. It is not a case where there was mere
postponement of enjoyment. There is no clause which confers any right in
praesenti in favour of the legatees under the Will. Therefore, the
submission of the learned Senior Counsel for the appellants has no merits.
20.It is true that the document Ex.A3 is a described as a
settlement deed. It has been repeatedly held by this Court and the Hon'ble
Supreme Court that the form or nomenclature of the instrument is not
conclusive and that the Court is required to look into the substance of the
document when an issue arises as to the character of the document whether it
is a Will or a settlement deed or gift. In the case of P.K.Mohan Ram v.
B.N.Ananthachary and others reported in AIR 2010 SC 1725 the Hon'ble Supreme
Court has held in paragraph 13 as follows:
?13. Having noticed the distinction between vested interest and contingent
interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a
Will. Although, no strait-jacket formula has been evolved for construction of
such instruments, the consistent view of this Court and various High Courts
is that while interpreting an instrument to find out whether it is of a
testamentary character, which will take effect after the life time of the
executant or it is an instrument creating a vested interest in praesenti in
favour of a person, the Court has to very carefully examine the document as a
whole, look into the substance thereof, the treatment of the subject by the
settlor/executant, the intention appearing both by the expressed language
employed in the instrument and by necessary implication and the prohibition,
if any, contained against revocation thereof. It has also been held that form
or nomenclature of the instrument is not conclusive and the Court is required
to look into the substance thereof.?
21.A Division Bench of this Court in the case of Arthur Mary
Ammal v. Aruldoss Pillai (deceased by L.Rs.) and others reported in AIR 2004
Madras 57 has considered several judgments of the Hon'ble Supreme Court and
this Court and approved the view that unless there is a disposition in
praesenti, though a document is styled as settlement deed and registered as
such, when the intention of the testator is very clear that the property can
be enjoyed by the legatees only after the life time of testator, it can be
termed only as a Will.
22.The findings of the trial Court that Ex.A3 is only a Will and
not a settlement and that the due execution, attestation and validity of
Ex.A3 is proved in accordance with law, has not been seriously argued before
this Court. Hence, this Court has no hesitation to confirm the findings of
the trial Court that the Will under Ex.A3 comes into effect only after the
death of Dr.Jayaraman and that it has been validly proved as a genuine and
valid Will of Dr.Jayaraman. With regard to the character of properties,
namely, the three plots referred in item No.4 of suit schedule, as it has
been held by the trial Court, except plot No.73, other two plots, namely,
plot Nos.71 and 72 are the exclusive properties of the second plaintiff and
they are not available for partition. As pointed out earlier, items 5 to 9
of the suit properties are allotted to Dr.Jayaraman in a family partition and
it has been held by the trial Court that they are his ancestral properties.

After the death of Dr.Jayaraman in the year 2002, his two daughters are
entitled to equal share as that of Dr.Jayaraman and as a result, the
plaintiffs and first defendant are entitled to 5/12 share and the first wife
of Dr.Jayaraman, namely, the second plaintiff and third defendant, the
illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by
virtue of the State Amendment to the Hindu Succession Act, 1956.
Having
regard to the specific findings of the trial Court and the arguments of the
learned Senior Counsel appearing for the appellants, this Court does not find
any legal infirmity in the judgment and decree of the trial court, except
plot No.73 described as part of item No.4. The conclusion of the trial Court
is not reflected in the operative portion of the judgment. Hence, the
judgment and decree of the trial Court is required to be modified by holding
that the plaintiffs and defendants 1 and 3 are entitled to , share in plot
No.73 described as part of item No.4 of suit schedule. Regarding other
aspects, the findings of the trial Court are supported by reasons and
evidence let in by both the parties. As a result, this appeal is partly
allowed. The plaintiffs and defendants 1 and 3 are entitled to equal , share
in Plot No.73. Hence, this judgment and decree of the trial Court is
modified insofar as the suit item No.4. While the judgment and decree of
trial Court is upheld in respect of Plot No.71 and 72 in suit item No.4, it
is concluded that the plaintiffs and defendants are entitled to , share each
in respect of plot No.73 which is held to be the absolute property of
Dr.Jayaraman. Hence, subject to the modification pointed out above, the
judgment and decree of the trial Court is affirmed. However, there is no
order as to costs. Consequently, the connected miscellaneous petitions are
closed.
To
1.The First Additional District Judge,
Tiruchirappalli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai..