Judgment:
1. This appeal has been preferred against the Judgment and Decree of the trial Court, namely, the Additional District Judge (Fast Track Court), Chidambaram dated 01.07.2002 made in O.S.No.4 of 2002 on the file of the said Court. The suit was dismissed by the trial Court.
2. As against the same, Chandrakanthammal, who figured as the sole plaintiff in the said suit, had filed the appeal as the sole appellant. During the pendency of the appeal, Chandrakanthammal died and Ramakrishnan has been impleaded as the second appellant to represent the estate of the deceased Chandrakanthammal.
3. O.S.No.4 of 2002 on the file of the Additional District Judge, (Fast Track Court), Chidambaram was filed for partition and separate possession of her share in the suit properties by the original plaintiff Chandrakanthammal and for mesne profits.
4. The plaint averments, in brief, are as follows:-
(i) One Raju Naidu was the absolute owner of the suit properties. He was the husband of Chandrakanthammal, the plaintiff and the father of Cittibabu, the first respondent/first defendant. The suit properties were the self acquired and absolute properties of the said Raju Naidu. He had purchased it from others. He died intestate leaving his wife and son alone as his legal heirs. As such Chandrakanthammal (the sole plaintiff) and Chittibabu (the first respondent) became entitled to an undivided half share each in the suit properties. In law, they are deemed to be in joint possession of the suit properties. In spite of repeated demands made by the plaintiff, the first defendant Chittibabu was evading the division of properties by metes and bounds. Consequently a lawyer's notice was issued to Chittibabu, the first defendant for partition and separate possession of her half share in the suit properties. Though the first defendant received the notice, he did not comply with the demand, nor did he send a reply. Therefore, the plaintiff was constrained to file the suit for partition and separate possession of her half share in the suit properties. Since the second defendant Selvam claimed to have some interest in the suit properties through the first defendant, he was also added as a party, so that a decree can be obtained in his presence so as to bind him. Since the suit 5th item was subsequently purchased by Suganthi, the third defendant from the first defendant, she was subsequently added as party as per the order made in I.A.No.61 of 2002.
5. Based on the above said allegations, Chandrakanthammal, the sole plaintiff, had prayed for a decree for partition dividing the suit properties into two equal shares and allotting one such share to the plaintiff and to put her in possession of the same. She had also prayed for determination of mesne profits. Though Selvam was shown to be second defendant and Suganthi was added as third defendant, they did not file any Written Statement.
6. Cittibabu, the first defendant alone contested the suit by filing a Written Statement containing allegations, in brief, as follows:-
i)All the suit properties were the properties purchased by Raju Naidu. He worked and retired as Amin in Judicial Department. Door No.2, Angalamman Koil Street, Chidambaram, which is shown to be the 1st item of the suit properties was purchased in the name of Raju Naidu, whereas Door No.5, Chinna Chetty Street, Chidambaram was purchased by Raju Naidu with his own funds in the name of his wife Chandrakanthammal. As item No.2 of the suit properties, namely Door No.4, Chinna Chetty Street, Chidambaram was another property purchased by Raju Naidu and the same is situated next to Door No.5, Chinna Chetty Street, Chidambaram, in order to have convenient enjoyment, Raju Naidu and his wife exchanged the properties bearing Door No.5, Chinna Chetty Street and Door No.2, Angalamman Koil Street, Chidambaram under an Exchange Deed dated 19.12.1949. Pursuant to the exchange, mutation of names were made in the Revenue and Municipal Records regarding those properties. Therefore, the 1st item of the suit properties, namely, Door No.2, Angalamman Koil Street, Chidambaram, was not the property of Raju Naidu after 19.12.1949. On the other hand, Door No.5, Chinna Chetty Street became the absolute property of Raju Naidu. ii)The said Raju Naidu did not die intestate as contended by the plaintiff. On the other hand, in order to safeguard the interest of his son, namely the first defendant Raju Naidu, made a Will on 10.02.1954 bequething all his properties including the one he got under the Exchange Deed, namely Door No.5, Chinna Chetty Street, Chidambaram, in favour of the first defendant, absolutely. After making the Will, Raju Naidu died on 19.02.1954. The said Will, being the last Will and testamant of Raju Naidu, came into effect on the death of Raju Naidu and thus the first defendant Chittibabu became the absolute owner of all the properties of Raju Naidu. In the said Will itself, Raju Naidu had incorporated a direction to the first defendant and the plaintiff to perform the marriage of his daughter Indira, by selling his lands situated in Maruvai Village. The first defendant was also directed to perform the obsequies of Raju Naidu and his wife, namely, the plaintiff. After the death of Raju Naidu, Maruvai Village properties were jointly sold by the plaintiff and the first defendant for performing the marriage of Raju Naidu's daughter Indira. The first defendant had also discharged the debts incurred for the marriage of Indira. Having allowed the first defendant to carry out the directions contained in the Will, the plaintiff is estopped from denying the genuineness of the Will dated 10.02.1954. iii)One Ramakrishnan, son of the above said Indira became inimical towards the first defendant. He poised the mind of the plaintiff by exerting undue influence, fraud and cheating and caused the plaintiff to issue a notice dated 07.04.1998 to the first defendant containing false claims and false allegations. The suit itself was filed with such false allegations at the instigation of the above said Ramakrishnan. In fact the above said Ramakrishnan wanted the first defendant to lend him a sum of Rs.20,000/- which was refused by the first defendant. Hence, there arose an enemity between the first defendant and Ramakrishnan, pursuant to which, at the instigation of the said Ramakrishnan, the suit has been filed. In fact, the first defendant was pursuing litigations against the cultivating tenants from 1974 onwards in respect of the agricultural lands leased out to them. A house site and agricultural lands at Vannarapalayam, Cuddalore were sold by the first defendant. The plaintiff who was fully aware of those developments did not raise any objection because she knew the existence of the Will. As the suit has been filed showing Door No.2, Angalamman Koil Street, Chidambaram, as one of the suit properties, which did not belong to Raju Naidu after 19.12.1949, the suit is bad for mis-joinder of the 1st item. The property bearing Door No.5, Chinna Chetty Street, Chidambaram, owned by Raju Naidu has not been included in the suit. Therefore, the suit seeking partial partition is liable to be dismissed.
7. Based on the above said pleadings, the trial Court framed the following seven issued:-
1) Whether the 2nd item of the suit properties became the separate property of the plaintiff by virtue of the exchange of properties pleaded by the first defendant ?
2) Whether the father of the first defendant has bequethed all the suit items including suit item No.5, except suit 2nd item, to the first defendant under a Will dated 10.02.1954?
3) Whether the 2nd item of the suit properties has been unnecessarily added in the plaint schedule ?
4) Whether the plaintiff is entitled to a preliminary decree as prayed for ?
5) Whether the suit has not been properly valued resulting in payment of insufficient Court Fee?
6) Whether the second defendant is an unnecessary party ?
7) To what other relief, the plaintiff is entitled ?
8. Based on the above said issues framed by the trial Court, the parties went for trial. In the trial, the plaintiff figured as sole witness (PW.1) and 18 documents were marked as Exs.A1 to A18 on her side. Including the first defendant, two witnesses were examined as DW.1 and 2 and Exs.B1 to B84 were marked on the side of the defendants. .
9. The trial Court considered the pleadings and evidence in the light of the arguments advanced on either side and upon such consideration, decided all the issues against the plaintiff and in favour of the first defendant and consequently dismissed the suit with costs, by its judgment and decree dated 01.07.2002. The correctness of the said judgment and Decree is questioned in this appeal, on various grounds set out in the memorandum of appeal, originally filed by the plaintiff and being continued by the second appellant, who came on record after the death of the first appellant (the plaintiff).
10. The arguments advanced by Mr.A.Muthukumar, on behalf of the appellant and that of Mr. P.Gopalan, on behalf of the contesting respondents were heard. The entire materials available on record were also perused.
11. The points that arise for consideration in this appeal are as follows:-
1) Whether the Will dated 10.02.1954 propounded by the first respondent/first defendant is true and valid?
2) Whether the first item of the suit was not the one belonging to the deceased Raju Naidu ?
3)Whether the omission to include Door No.5, Angalamman Koil Street, Chidambaram, in the suit shall affect the suit filed for partition ?
4) Whether the appellant/plaintiff is entitled to the relief of partition and mesne profits as prayed for in the plaint ?
12.The suit filed by the original plaintiff Chandrakanthammal (since deceased) for partition and separate possession of the share allegedly held by her in the suit properties and for mesne profits was dismissed by the learned trial Judge by the impugned judgment and decree dated 01.07.2002. Hence, the said Chandrakanthammal, as the sole appellant, had filed the present appeal. As she died during the pendency of the appeal, her grandson through her predeceased daughter Indira by name Ramakrishnan got impleaded as the second appellant in his capacity as the legal heir of the deceased Chandrakanthammal. Thus the appeal is being pursued by the second appellant representing the estate of the deceased first appellant Chandrakanthammal/plaintiff.
Points 2 and 3:
13.At the outset, this court wants to point out the fact that the court below has committed a mistake in framing issue Nos.1 to 3. Door No.2, Angalamman Koil Street, Chidambaram, is the one shown to be the first item. The same, according to the first respondent/first defendant, was the one exchanged by Raju Naidu with his wife Chandrakanthammal (plaintiff) for the property bearing door No.5, Chinna Chetty Street, Chidambaram. Even according to the first respondent/first defendant, door No.2, Angalamman Koil Street, Chidambaram, was the property, which was not dealt with by the Will of Raju Naidu propounded by the first respondent/first defendant. The inclusion of the said property in the plaint schedule is found fault with by the first respondent/first defendant. Therefore, issue No.1 should have been correctly framed referring to the suit first item as the property claimed to be exchanged with the property bearing door No.5, Chinna Chetty Street. A reference in the issue No.1 has been made to the second item erroneously instead of suit first item. Similarly, the suit first item has been wrongly described as the second item in issue No.2 also. Suit item No.14 is the property that was sold by the first respondent/first defendant and his son in favour of the third respondent/third defendant under Ex.A1. In issue No.2, reference to suit fifth item has been made instead of suit item No.14. Similar mistake is found in issue No.3 also.
14.According to the plaint averments, all the suit properties were the self-acquired properties of Raju Naidu, the husband of the plaintiff, who worked and retired as an Amin in the Judicial Department. The fact that the properties described in the plaint schedule were the self-acquired properties of Raju Naidu as they were purchased out of his own earnings as an Amin in the Judicial Department is not disputed and on the other hand the same has been clearly admitted by the contesting respondent, namely, the first respondent/first defendant. However, the contesting respondent, namely, the first respondent/first defendant has taken a peculiar stand that another property bearing Door No.5, Chinna Chetty Street, Chidambaram had been purchased by the said Raju Naidu in the name of his wife (plaintiff) investing his own personal funds; that subsequently he had also purchased the property bearing Door No.4, Chinna Chetty Street, Chidamabaram, a property abutting Door No.5, Chinna Chetty Street, Chidamabaram purchased in the name of the plaintiff; that for convenient enjoyment of the properties Raju Naidu and his wife Chandrakanthammal entered into a transaction of exchange, exchanging Door No.2, Angalamman Koil Street, Chidambaram for the property bearing Door No.5, Chinna Chetty Street, Chidamabaram, under an unregistered Exchange Deed dated 19.12.1949.
15.The said contention of the first respondent/first defendant raised in the Written Statement was stoutly refuted by Chandrakanthammal by filing a Reply Statement denying the allegations contained in the Written Statement in this regard. As such the first respondent/first defendant, who relies on the alleged exchange is bound to prove the same.
16.In this regard the first respondent/first defendant examined himself as DW.1 and also examined one Sundarraman as DW.2. The said Sundarraman, examined as DW.2, has not stated anything regarding the alleged exchange of the properties bearing Door No.2, Angalamman Koil Street, Chidambaram and Door No.5, Chinna Chetty Street, Chidamabaram. Except DW.1, the first defendant himself, no other person having knowledge of the alleged exchange has been examined on the side of the respondents/defendants in support of his contention that the property purchased in the name of Chandrakanthammal, namely, Door No.5, Chinna Chetty Street, Chidamabaram and the property purchased in the name of Raju Naidu, namely, Door No.2, Angalamman Koil Street, Chidambaram, shown to be the 1st item of the suit property were exchanged in 1949 and after such exchange, Chandrakanthammal was in possession and enjoyment of the Door No.2, Angalamman Koil Street, Chidambaram as its full owner and Raju Naidu and after him the first defendant was in possession and enjoyment of the property bearing Door No.5, Chinna Chetty Street, Chidamabaram, as its absolute owners.
17.Though the first defendant might have taken a stand that there was such an exchange of properties between Raju Naidu and his wife Chandrakantaammal, as DW.1 he would admit that the alleged Exchange Deed dated 19.12.1949 was an unregistered one. The alleged unregistered Exchange Deed has not been produced. The value of each one of the property sought to be exchanged was given as Rs.300/-. Therefore, it is obvious that the said document is one inadmissible for want of registration. However, in order to overcome the difficulty of introducing the same as a piece of evidence, the first respondent has chosen to produce a copy of the said deed containing an endorsement allegedly made on 07.10.1950 by Chandrakanthammal and her husband Raju Naidu in the form of a letter addressed to the Commissioner, Municipality, Chidambaram and marked that portion as Ex.B31. The said endorsement, was dated 07.10.1950. However, the date below the signature of the parties have been corrected from 07.10.1950 to 30.10.1950. The said letter was allegedly given to the Municipality in the year 1950 itself. If it was so, how the same came into the hands of the first respondent has not been explained. In fact such an unregistered deed shall not be admissible as an evidence for the proof of exchange, since admittedly the value of each property was not less than Rs.100/- and hence its copy is also inadmissible.
18.However, the first respondent/first defendant has made an attempt to prove the alleged exchange by producing documents relating to property tax assessment and payment of tax to the Government and local body. The property tax receipts dated 15.12.1956 and 19.09.1957 in the name of Chandrakanthammal have been produced as Ex.B2 series. Similar receipts from 1963 to 1970 have been produced as Ex.B3 series. Though the assessment number has been noted in Ex.B2 and Ex.B3 as 2817, there is nothing to show that the said receipts relate to suit 1st item, namely, No.2, Angalamman Koil Street, Chidambaram. Two receipts for payment of property tax in 1970 and 1971 in respect of Assessment No.2822 and one more receipt for payment of property tax in 1972 for the Assessment No.2029 in the name of Chandrakanthammal have been produced as Ex.B4 series. Ex.B5 is a certified copy of a decree passed in O.S.No.7 of 1965 on the file of the Subordinate Court, Chidambaram, against Chandrakanthammal and others filed by Aagama Siva Prakasa Pandara Sannathi Mutt and others, in respect of some of the properties including Door No.2, Angalamman Koil Street, Chidambaram, the 1st item of the present suit properties. The said suit was contested by Chandrakanthammal and was ultimately dismissed. The property tax receipts from the year 1964 upto 1971 in the name of the first defendant/first respondent Cittibabu, in respect of Assessment No.2787 have been produced as Ex.B6 series. Similar documents from 1973 to 2001 in respect of Assessment No.2995 in the name of the first respondent/first defendant have been produced as Ex.B7 series. A notice issued by the Chidambaram Municipality for personal enquiry relating to an Appeal filed by the first respondent for reducing the property tax in respect of Door Nos.4 and 5, Chinna Chetty Street, Chidamabaram has been produced as Ex.B8. Notices issued by the Municipality to the first respondent to pay the balance property tax has been produced as Exs.B9 and B10. The receipt showing payment of Rs.243/- on 12.10.1989 by the first respondent towards water charges for Door Nos.4 and 5, Chinna Chetty Street, Chidamabaram, has been produced as Ex.B11. To show that one Ganapathy Paththar was there as a tenant in respect of Door No.4, Chinna Chetty Street, Chidamabaram and he was evicted by an order of Court on a petition filed by the first respondent, a certified copy of the decreetal order of the Rent Controller passed in RCOP.No.25 of 1985 on the file of the District Munsif Court, Chidambaram has been produced as Ex.B12. Exs.B13 and B14 are the kist receipts in the name of Cittibabu. The orders passed by the Special Deputy Collector (Revenue) on 17.12.1991 for evicting a cultivating tenants, in the petitions filed by the first respondent Chittibabu have been produced as Exs.B16 and B17. A prosecution notice issued by Cuddalore Municipality on 19.10.1955 in respect of a property within Cuddalore Municipality to Chittbabu showing his address to be No.5, Chinna Chetty Street, Chidamabaram, has been produced as Ex.B17. Similar notice by Cuddalore Municipality, which does not bear any date, sent to Chittibabu without address has been produced as Ex.B23. Ex.B34 has been produced as a copy of the order issued by the Commissioner, Chidambaram Municipality, clubbing the assessment of the houses bearing Door Nos.4 and 5, Chinna Chetty Street, Chidamabaram, with effect from 01.04.1953. But, there are documents like Ex.B52 to Ex.B64 evidencing separate payment of house tax for Door No.5, Chinna Chetty Street, Chidamabaram. Exs.B66 to B68 are the Demand Notices relating to Door No.5, Chinna Chetty Street, Chidamabaram. Ex.B69 is a copy of the written objection submitted by the first respondent to the Commissioner, Chidambaram Municipality, on 07.10.1970 for reducing the property tax, in which, he has stated that the properties bearing Door Nos. 4 and 5, Chinna Chetty Street, Chidamabaram, were assessed as a single unit upto 1965 and in 1965, the same was split up into two separate units for assessment. But the fact remains that the said representation was made for reduction of the property tax assessment made for Door No.5, Chinna Chetty Street, Chidamabaram alone. Exs.B70 to B72 are communications between the Municipality and the first respondent in this regard. Exs.B73 and B74 are communications sent to the first respondent in respect of giving sewage connection to the houses bearing Door Nos.4 and 5, Chinna Chetty Street, Chidamabaram respectively. Exs.B75 to B78 are the other documents relating to the same. Exs.B79 to B82 are the documents relating to electricity supply to Door No.5, Chinna Chetty Street, Chidamabaram. Ex.B83 is an application for getting an extract from the 'Register of Births' from Cuddalore Municipality allegedly signed by Raju Naidu. Ex.B84 is the property tax receipt, dated 05.11.1952 in the name of Raju Naidu.
19.The mere fact that the first respondent used to pay the property tax for Door No.5, Chinna Chetty Street, Chidamabaram also shall not be enough to show that the said property was treated as the property of Raju Naidu and Door No.2, Angalamman Koil Street, Chidambaram, property was treated as the property of the plaintiff. The plaintiff has taken a clear stand that there was no such exchange as contended by the first defendant. The first defendant, while deposing as DW.1, would state that he was aged just 13 years on 10.12.1949, on which date the Exchange Deed was allegedly executed. Though he would state that he was present at the time of execution of the Exchange Deed, he would plead ignorance regarding the other particulars like the names of the scribe, attesters and the person in whose name stamp papers for preparing the Exchange Deed was purchased. A consideration of the evidence of DW.1 would show that it was his case that Ex.B31 is not the Exchange Deed and that it was only a joint letter addressed by Raju Naidu and the plaintiff to the Commissioner, Chidambaram Municipality. It should also be noticed that Raju Naidu died on 19.02.1954. The date of death of Raju Naidu has not been stated in the plaint. On the other hand in Ex.A11 notice it was stated that Raju Naidu died intestate in 1953. But the first defendant, besides stating that the year of death was wrongly stated in the notice, has also given the correct date of death as 19.02.1954. Ex.B25, the Death Certificate, provides proof that Raju Naidu died on 19.02.1954 and not in the year 1953 as stated in Ex.A11 Notice. Whatever it may be, the first defendant as DW.1 has admitted that he was aged about 13 years in 1949 when the alleged Exchange Deed was executed. He would have just completed 18 years on the date of death of his father. Admittedly he got married in 1964, ten years after the death of his father and till 1968 the plaintiff and the first defendant were living as members of the same family. According to the testimony of DW.1, only in 1968 the plaintiff moved to Door No.2, Angalamman Koil Street, Chidambaram. However, there is no piece of paper to show that the plaintiff prior to 1968, was residing in No.2, Angalamman Koil Street, Chidambaram and not in the property bearing Door No.5, Chinna Chetty Street, Chidamabaram. On the other hand admittedly she was residing at Door No.5, Chinnachetty Street along with the first defendant and that only in 1968 she moved to Door No.2, Angalamman Koil Street, Chidambaram. The mere fact that the first respondent was making communications with the local authorities in respect of the property tax assessment for Door No.5, Chinna Chetty Street, Chidamabaram and the property tax was also paid in his name shall not be enough to substantiate his contention that the said property was owned by his father pursuant to an Exchange Deed. Moreover, there is not even a piece of paper to show that the plaintiff was in exclusive possession of property bearing Door No.2, Angalamman Koil Street, Chidambaram. As the first defendant is the son of the plaintiff, there is no wonder in his dealing with the property of the mother while both of them were residing as members of one family in the same house. The mere fact that the son paid property tax in his name will not be enough to show that Door No.5, Chinna Chetty Street, Chidamabaram was the property of deceased Raju Naidu, whereas Door No.2, Angalamman Koil Street, Chidambaram, the 1st item of the suit property was the property of the plaintiff by virtue of a transaction of exchange. After the death of Raju Naidu, the plaintiff and the first defendant, being mother and son, lived under the same roof for about ten years (when the first defendant was bachelor) and thereafter for a further period of four years even after the first defendant got married. The Court below after considering the evidence in this regard has come to the correct conclusion that the alleged exchange was not proved and that therefore, the defence plea raised by the first respondent/ first defendant that the suit is not maintainable since door No.2, Angalamman Street, Chidambaram was erroneously included in the properties available for partition whereas door No.5, Chinna Chetty street was not included as one of the properties available for partition, deserves to be rejected as untenable. The said finding is hereby confirmed. Points 1 and 4:-
20.Admittedly, all the properties left by Raju Naidu were his self-acquisitions and he did not possess any ancestral property. It is also an admitted fact that Raju Naidu was working as Amina in Judicial Department and out of the earnings he made in such a position in the Judicial Department, he purchased all his properties. There is no controversy over the same. If at all Raju Naidu had died intestate, his wife, namely the deceased plaintiff Chandrakanthammal would have become entitled to half share in the properties of Raju Naidu with a limited right to enjoy the same till her life time without power of alienation, as admittedly Raju Naidu died before Hindu Succession Act, 1956 came into force. However, by virtue of section 14 of the Hindu Succession Act, 1956 such a limited right would have enlarged into an absolute property. The plaintiff Chandrakanthammal lived beyond the date on which the Hindu Succession Act, 1956 came into force and hence her right in respect of half share of the properties left by Raju Naidu got enlarged into an absolute right. The legal position shall be so, provided Raju Naidu had died intestate. There is no controversy or difference of opinion regarding the said legal position. Therefore, the claim of the deceased plaintiff Chandrakanthammal for partition in respect of the properties left by her husband Raju Naidu depends upon the answer to the question whether Raju Naidu died intestate as claimed by her or he had left a Will, as claimed by the first respondent/first defendant.
21.Of course, it is true that the party who propounds the Will and claims right under the Will, is bound to prove the genuineness of the Will and the fact that such Will was made by the testator while in sound dispossessing state of mind. Not only the execution, but also the attestation of the Will should be proved by him. Though, it is the case of the first respondent/first defendant that his father, namely deceased Raju Naidu executed an unregistered Will dated 10.2.1954 bequeathing all his properties in favour of the first defendant, the said plea raised in the written statement was stoutly denied by the deceased plaintiff Chandrakanthammal. The genuineness of the Will was questioned on the grounds : 1) the same was surrounded by suspicious circumstances; 2) there was inordinate delay in producing the Will into court and 3) the Will was not referred to in almost all the transactions made prior to the issuance of pre-suit notice to which the first respondent/first defendant was a party. Of course, in compliance with the requirement found in section 68 of the Evidence Act, an attester of the Will was examined as D.W.2. D.W.1 himself has spoken about his direct knowledge of the execution and attestation of the Will. The Will in question has been produced as Ex.B1. It is dated 10.02.1954. Admittedly, Raju Naidu died on 19.02.1954. The date of death of Raju Naidu is also proved by the production of Ex.B25-death certificate. Therefore, it is obvious that within 10 days from the date on which Ex.B1-Will was allegedly executed by him, the testator Raju Naidu died.
22.In this regard, the deceased plaintiff, no doubt, had taken a plea that her husband was unwell, bed-ridden and was in the Coma stage for about a month prior to his death. Per contra, it is the contention of the first defendant/first respondent that the father Raju Nadu was hale and healthy; that he was neither bed-ridden nor in coma stage for about a month as contested by the plaintiff and that he got sudden chest pain pursuant to which, he was admitted in the hospital and the same led to his death within two days thereafter. In tune with her pleadings, the plaintiff, who figured as P.W.1, stated in her evidence that her husband was unwell and was in a coma stage for about a month prior to the date of his death. It is also her evidence that in 1954, her husband died; that prior to his death, he was unwell; that he could not speak and eat and that such a condition was described by her as coma stage. However, during cross examination, she has admitted that she could not give reasons as to why her husband was not admitted in the hospital, even when he was in such state of health. It is also her admission that only in the Government hospital, her husband Raju Naidu died. If at all he was in the coma stage or in a condition not able to eat or speak for about a month and no attempt was made to get him admitted and treated in an hospital for about a month, what was the necessity and what was the occasion for taking him to Government hospital before his death, has not been explained. Though, P.W.1 would have stated that during the period of one month prior to his death, the doctor would come to her residence once in a week and give treatment, there is no evidence except the ipse dixit of P.W.1 to prove that such a treatment was given by a doctor, who visited Raju Naidu once in a week. On the other hand, the evidence of D.W.1 in this regard is quite natural and believable. He would state that his father Raju Naidu was hale and healthy till 17.02.1954; that he did not have any other disease other than blood pressure; that he developed sudden chest pain pursuant to which he was admitted in the hospital and that he died in the hospital two days thereafter. 23.Admittedly, the property described as Items 2 to 15 in the plaint schedule were the properties of deceased Raju Naidu. Raju Naidu died on 19.2.1954 as evidenced by the death certificate produced by the first respondent/first defendant and marked as Ex.B25. We have already seen that the contention of the first respondent/first defendant that the suit is bad for partial partition in view of the fact that the property bearing Door No.5, Chinna Chetty Street, Chidambaram was not made one of the suit properties, cannot be sustained, since the case of the first respondent/first defendant that there was exchange of the said property for the property bearing Door No.2, Angalamman Koil Street, Chidambaram by the deceased plaintiff Chandrakanthammal with her husband late Raju Naidu is unsustainable. Similarly, we have also seen that the suit is not bad for misjoinder of the property bearing Door No.2, Angalamman Koil Street, Chidambaram as Item No.1 of the plaint schedule as one of the properties available for partition. When the contention of the first respondent/first defendant that there was a transaction of exchange between Raju Naidu and his wife Chandrakanthammal in respect of the suit first item and the property bearing Door No.5, Chinna Chetty Street, Chidambaram remains unsubstantiated, then the contention of misjoinder of the properties and partial partition for omitting to include the property bearing Door No.5 Chinna Chetty Street, Chidambaram as one of the suit properties also has to be rejected as untenable. In the light of the above said context, the prayer for the relief of partition sought for by the deceased plaintiff has to be dealt with.
24.As pointed out supra, all the properties that have been included in the plaint schedule have been proved to be the properties of deceased Raju Naidu who died on 19.02.1954. He was survived by Chandrakanthammal, the sole plaintiff, daughter Indra (now dead) and son Chittibabu, the first respondent/first defendant. In the absence of any bequest made by Raju Naidu indicating the line of succession to his properties, his properties would have devolved upon his wife Chandrakanthammal and his son Chittibabu in equal proportion with a rider that Chandrakanthammal would have got a limited estate (life estate) in respect of her half share without any power of alienation and the same would have vested with the first respondent/first defendant absolutely on her death but for the passing of the Hindu Succession Act, 1956. When the succession to the estate of Raju Naidu opened i.e., on 19.02.1954, as per the then existing law governing succession to the properties of Hindus, the first respondent would have got = share absolutely and the other = share would have gone to Chandrakanthammal as a limited estate for being enjoyed by her till her life time to be reverted back to the other legal heirs of Raju Naidu on the death of Chandrakanthammal. However, subsequent to the death of Raju Naidu, Hindu Succession Act, 1956 came to be enacted and brought to force. Section 14 of Hindu Succession Act, 1956 provides that such a limited estate under customary Hindu law would get enlarged into an absolute estate. Therefore, on the advent of Hindu Succession Act, 1956, by virtue of Section 14 of the Hindu Succession Act, both Chandrakanthammal and Chittibabu became entitled to = share each in the properties of Raju Naidu without any restriction which was imposed by customary law before the advent of the Hindu Succession At. The daughter Indra get excluded since she was not a sharer on the date on which succession to the estate of Raju Naidu opened. There is no controversy over the above said legal proposition. However, the first respondent/first defendant has chosen to contend that the properties of Raju Naidu, except the items which were directed to be sold for conducting the marriage of his daughter Indira, were bequeathed by Raju Naidu in favour of his son Chittibabu (first respondent/first defendant) by virtue of a Will dated 10.02.1954. The said contention is not admitted and on the other hand stoutly disputed by Chandrakanthammal (the deceased first plaintiff).
25.It is not the case of the first respondent/first defendant that the Will in question is an admitted document to say that the proof required in law complying with the condition prescribed under Section 68 of the Evidence Act is excluded. Raju Naidu died within 10 days after the date of execution of the alleged Will dated 10.02.1954. The original Will has been produced and marked as Ex.B1. As per Section 68 of the Evidence Act, a document required by law to be attested shall not be used as evidence until one of the attesting witnesses at least is called for the purpose of proving its execution if there be a attesting witness alive and subject to the process of the Court and capable of giving evidence. The proviso to Section 68 does not apply, since Ex.B1 is not a registered one and since the proviso excludes a Will from its ambit. In this case, the first respondent/first defendant has chosen to examine one Sundarraman as PW2, besides examining himself as DW1 in order to prove the Will in question. The Will is said to be attested by PW2 Sundarraman and one Nagarajan. According to the plaintiff, Sundarraman was a close friend of the first respondent/first defendant and the other attester, namely Nagarajan, was a fictitious person. The first respondent/first defendant is the sole beneficiary of the Will, except regarding the agricultural lands situated in Maruvai Village, Cuddalore Taluk which were directed to be sold jointly by Chandrakanthammal and Chittibabu for conducting the marriage of Raju Naidu's daughter Indira. It is also an admitted fact that the agricultural properties situated in Maruvai Village were sold jointly by the plaintiff and the first defendant on 21.10.1957. The mere fact that the said property was sold jointly by the plaintiff and the first defendant, will not be enough to show that the same was done pursuant to the wish expressed by Raju Naidu in the disputed Will. A certified copy of the said sale deed dated 21.10.1957 has been produced and marked as Ex.A3. Though the said document was executed 3 = years after the death of Raju Naidu, there is no reference to the Will in the said sale deed. It was simply recited therein that the property conveyed under the said sale deed did belong to the vendors therein and were enjoyed by them. It was further stated in the said sale deed that the properties conveyed under the deed had been purchased by the father of Chittibabu (referring to Raju Naidu) and that after the death of Raju Naidu the plaintiff and the first defendant became entitled to the said property and were in possession and enjoyment of the same. A total extent of 1.28 acres of wet land in S.Nos.282/32, 282/5 and 283/7 in Maruvai village was the subject matter of the sale under Ex.A3 and the same was sold for a sum of Rs.500/-. The Will did not direct vesting of the property with the plaintiff and the first defendant on the death of the testator. On the other hand, it contains a direction that the property should be sold to meet the expenditure to be incurred for the marriage of Raju Naidu's daughter Indira. The learned counsel for the appellant has rightly pointed that the non-mentioning of the Will in the said document to which the first respondent /first defendant was a party shall have its negative impact on the claim of the first respondent/first defendant that Raju Naidu had left a Will.
26. Yet another document is a sale deed dated 22.05.1956, a copy of which has been marked as Ex.A1, under which the suit 14th item was conveyed by the first respondent/first defendant for himself and on behalf of his minor son Raju Kumar in favour of the 3rd respondent/3rd plaintiff Suganthi. In the said sale deed, of which the first respondent was the vendor on his own behalf and on behalf of his minor son Raju Kumar, the title of the vendors had been traced in the following manner. "The property had been purchased by Raju Naidu under a sale deed dated 13.07.1925 and was enjoyed by him till his death and after his death, the first respondent/first defendant was enjoying the said property viz., the subject matter of the sale deed, a copy of which has been marked as Ex.A1." In the said sale deed also the suit Will has not been referred to and on the other hand, it was recited that the property had been purchased and enjoyed by Raju Naidu till his death and after his death, the same was in the enjoyment of the first respondent/first defendant. The relevant portion in the vernacular language is extracted for the purpose of better appreciation:-
In the absence of any reference to the Will in the said document, the said recital also shall have a negative impact on the contention of the first respondent/first defendant regarding the suit Will.
27.Further more, a certified copy of the decree passed in O.S.No.195 of 1956 on the file of the Court of District Munsif Chidambaram has been produced as Ex.A2. The decree was passed on 21.06.1957. The plaintiff Chandrakanthammal and the first respondent/first defendant Chittibabu Naidu figured as plaintiffs in the said suit. One Kuppusamy Naidu was the defendant in the said suit. The said suit was filed for a declaration of the title of the plaintiffs therein and for a mandatory injunction directing the defendant therein to restore a wall which was allegedly demolished by the defendant therein. The said suit was filed in respect of the house property bearing Door No. 2 Angalamman Koil Street, Chidambaram viz., the first item of the suit properties. The first item of suit property bearing Door No.2, Angalamman Koil Street, Chidambaram was admittedly purchased by Raju naidu in his own name on 07.11.1944. The said document is marked as Ex.A6. If at all the Will could be genuine, then there would not have been a necessity for the first respondent / first defendant to make the plaintiff Chandrakanthammal join with him in filing the said suit. In Ex.B1 Will, there are recitals to the effect that the property bearing Door No.2, Angalamman Koil Street purchased in the name of Raju Naidu was exchanged for the property bearing Door No.5, Chinnachetty Street, Chidambaram purchased in the name of Chandrakanthammal. We have already seen that the alleged exchange has not been substantiated. Under such circumstances, the very fact that the first defendant joined as a co-plaintiff in O.S.No.195 of 1956 on the file of the District Munsif, Chidambaram for getting reliefs in respect of the suit first item, without making any reference to the suit Will, will also adversely affect the case of the first respondent/first defendant in respect of the Will relied on by him.
28. The Will contains a direction that the properties of Raju Naidu situated in Maruvai Village should be sold and the sale proceeds should be used for conducting the marriage of Indira, daughter of Raju Naidu. The first respondent / first defendant himself has produced the wedding invitation of Indira and marked as Ex.B26. As per the said document date of marriage was fixed as 01.04.1955 but the properties of Raju Naidu situated in Maruvai Village were sold 2 = years subsequent to the date on which Indira got married. Therefore, it is quite obvious that the said sale under Ex.A3 was not made for meeting the expenses of the marriage of Indira. It is quite obvious that Indira's marriage was solemnised on 01.04.1955 and Ex.A3 sale deed was executed after a lapse of 2 = years from the date of marriage of Indira. The first respondent/first defendant has come forward with a novel explanation for the same. The explanation offered by him is that, since he was not able to sell the property, he borrowed money for the marriage of his sister Indira, conducted her marriage on 01.04.1955, thereafter, he sold the property situated in Maruvai Village and discharged the loan using the sale proceeds. The relevant part of his deposition is extracted here under:-
It is pertinent to note that even according to the first respondent/first defendant, his friend within a period of one year and two months after the death of Raju Naidu, the marriage of Indira was solemnised. However, it is contented that the first respondent/first defendant borrowed on a pronote, a sum of Rs.2000/- for the marriage of his sister Indira as he did not have the necessary funds. But he was not in a position to give the name of the creditor from whom he borrowed the said amount. Date of pronote has also not been furnished by him. He refers to the alleged creditor as one Alakudi Naidu, meaning a person belonging to Naidu community, hailing from Alakudi. Neither the said creditor nor anybody who knew the said borrowal was examined. It is his admission that at the time of marriage of Indira, he was not employed. Though the first respondent /first defendant would have stated that he got an appointment as a Typist in Salem District Court and joined duty on 22.06.1955, it is not his case that the alleged debt borrowed by him for the marriage of his sister was discharged from his salary. On the other hand, it is his contention that he sold the property under Ex.A3 and with the sale proceeds, he was able to discharge the above said debt. Curiously, the amount for which the property was sold accounts for only 1/4th of the principal amount of the alleged debt. Therefore, the contention of the first respondent/first defendant that he conducted the marriage of his sister using the amount borrowed from a third person and thereafter sold the property under Ex.A3 and discharged the loan using the sale proceeds, cannot be believed. On the other hand, it is more probable that the first respondent/first defendant, who acquired a decree in law and rose to the level of a Personal Assistant to the Hon'ble Judges in the High Court of Madras and then as an Administrative Officer in the High Court of Madras in 1994 and retired in 1994, would have chosen to make such an ingenious pleading knowing fully well that the property had been sold jointly by himself and his mother. The above said facts regarding his educational qualifications and employment have been furnished by himself in his deposition as DW1.
29. Ex.A4 is a letter dated 09.02.1980 written by the first respondent/first defendant to his mother Chandrakanthammal. In the said letter, he had given some instructions to his mother to collect the rent and remit the same into the Bank towards the discharge of Jewel loan. Ex.A5 is the certified copy of a registered Power of Attorney dated 03.02.1997, executed by the first respondent/first defendant and his son Senthil @ Raj Kumar in favour of one K.S.Selvam (the second respondent) in respect of a property situated within the Municipal limits of Cuddalore Town with the following address: "Ward No.6, Block No.43, Town Survey No.1412/2, 1413/2 in Vanniyarpalayam Village within the Cuddalore Municipal Town." As per the following recital found in the said document, the said property had been purchased by Raju Naidu on 13.07.1931 and on the death of Raju Naidu, the same devolved upon the first respondent/first defendant and his son as per the rule of Succession:-
It is pertinent to note that in the said Power of Attorney which was executed on 03.02.1997, no reference was made to the suit Will marked as Ex.B1 in this case. In all those transactions, the first respondent/first defendant did not refer to the suit Will as the document under which he derived title to the properties of Raju Naidu. Only after the issuance of the suit notice by the plaintiff under Ex.B27, the first respondent/first defendant came forward with a contention that Raju Naidu did not die intestate and he had left behind him a Will dated 10.02.1954. But such a reply notice had returned unserved, as seen from Ex.B28. The reply notice was dated 25.04.1998. The suit was filed on 30.04.1998. The first respondent filed a written statement after 1= years viz., on 06.12.1999, from which alone the plaintiff came to know that the first respondent/first defendant was propounding a Will. Thereafter, the plaintiff Chandrakanthammal chose to file a reply statement denying the genuineness of the Will. Though the written statement was filed in 1999 itself, the Will was not produced along with the written statement. The same was not deposited with the Court with a request to keep it in safe custody. Even when the matter stood posted for trial in the special list, the Will was not produced. A memo was also served for the production of the Will into the Court. Only on 13.03.2002, when the first respondent/first defendant entered witness box as DW1, the Will was produced. The non-production of the Will for about 48 years coupled with the fact that the failure to refer to the Will in all the transactions made prior to the service of property pre-suit notice, according to the learned counsel for the appellant, shall be a suspicious circumstance impairing the probability of the case of the propounder of the Will. There is not only silence on the part of the legatee under the alleged Will for about 48 years, but also failure on the part of such legatee to refer to the Will in various sale transactions and the Power of Attorney executed by him. As rightly pointed out by the learned counsel for the appellant, the same shall cast a shadow on the genuineness of the Will. Further more, according to the submissions made by the learned counsel for the appellant, the dis-inheritence of the wife and the unmarried daughter would cast a serious doubt on the genuineness of the Will. In support of his contention, the learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Kalyan Singh v. Smt.Chhoti and others reported in AIR 1990 SC 396. In the said judgment it has been observed by the Hon'ble Supreme Court that it is the duty of the propounder of the Will to remove suspicious circumstances by placing satisfactory materials on record before the Court and the failure to do so will justify the conclusion that the Will could not be genuine.
30. In Robert Prabhakar v. David Ebenezer reported in (2007) 1 MLJ 146, a Division Bench of this Court has laid down two propositions which are as follows:-
i) When evidence of witnesses are in conflict with one another and the material on record creates doubt about the genuineness of the Will, the propounder of the Will would be held to have not proved the due execution and attestation of the Will.
ii.Law is well settled that even if there are no suspicious circumstances surrounding the Will, the due execution and attestation of the Will must be proved by the propounder of the Will.
In similar circumstances, referring to an earlier document which did not refer to the Will propounded in that case, the Division Bench made the following observation:
"In our opinion the silence in Ex.B5 regarding execution of any Will creates a lot of doubt regarding the genuineness of the Will."
31. In this case, there is of course an explanation for the non-inheritance of the wife and unmarried daughter of the testator. Therefore, we have to hold that the non-inheritance of the wife and unmarried daughter, as a suspicious circumstance, has been explained by the contents of the Will itself. However, there are other suspicious circumstances casting a shadow on the genuineness of the Will. First of all, for more than 48 years, the first respondent/first defendant did not even mention about the existence of the Will. Secondly, in all the documents executed by the first respondent/first defendant prior to the filing of the suit, not only he failed to make reference to the Will for tracing his title, but also has inserted recitals to the effect that he got the property by the rules of succession. Thirdly, even in Ex.A3 executed by the plaintiff and the first respondent/first defendant in 1957, nothing has been mentioned about the Will. Fourthly, since all the properties were admittedly the self acquisitions of Raju Naidu, if at all there was a Will left by him bequeathing the property absolutely in favour of the first respondent/first defendant, there was no need to make the son of the first respondent/first defendant as a co-executent in the sale deeds and the Power of Attorney executed in respect of the properties, which were discussed earlier (Ex.A1- Sale deed, Ex.A5 Power of Attorney). Only because Raju Naidu died intestate, the first respondent/first defendant had chosen to make his son a party to the documents on the impression that the property having come to his hands in 1954 itself, would be ancestral properties in his hands and hence his son would have got a right to share in it by birth. Fifthly, there is an inordinate delay in producing the Will into the Court. All these suspicious circumstances have not been properly explained by placing materials on record to dispel such suspicion. Therefore, we have to accept the contention of the learned counsel for the appellant that Ex.B1 Will propounded by the first respondent/first defendant is surrounded by suspicious circumstances and such suspicion have not been cleared by placing on record proper materials by the propounder of the Will.
32. However, the learned counsel for the respondents made a meek attempt to show that the genuineness of the Will should be presumed, as the same was an ancient document of more than 30 years old as per Section 90 of the Evidence Act. Of Course, there is also such a possibility in law for having such a presumption. But such a presumption enshrined under Section 90 of the Evidence Act shall not be a conclusive proof. It shall be a rebuttable presumption. Even for presuming the genuineness of such a document, it must be proved that the document has been produced from proper custody. The Section also says that the Court may presume the genuineness of such a document. For about half a century, the existence of the Will was not made public and it was not referred to in the documents that came into existence prior to the filing of the suit. It was kept in dark and suddenly it surfaced after the filing of the suit. There are other materials discussed supra which will also give raise to an inference that the Will could not have been in existence till 22.05.1996, the date on which the defendants executed a sale deed in respect of Item No.14, a copy of which has been produced and marked as Ex.A1.
33.Further, a consideration of the evidence adduced on the side of the first respondent/first defendant regarding the execution of the Will, will also go to show that the same is surrounded by other suspicious circumstances also. Out of the two attesters, only one was examined as DW2. It was the contention of the plaintiff that the other attester by name Nagarajan was a non-existent and fictitious person. Both the witnesses examined on the side of the defendants are not able to give the particulars of the 2nd attester Nagarajan. It is curious to note that the address of the first attester (DW2) and the scribe contains the respective door numbers and street names. But the address of the 2nd attester Nagarajan reads as follows:
Door number is not found. DW2 happened to be a chance witness, who was called to attest the Will, since the other person who had been invited by the testator was not present. A thorough reading and consideration of the evidence of DW2 will show that he was not speaking the truth. It is a clear admission made by DW2 that after 1957/1958, for about 10 years he used to sign as "Sundararaman" and that thereafter he changed his signature as "Sundar raman". In Ex.B1, the signature is found as Sundar raman. The 'a' in between two 'r's is missing. According to his own admission, he changed the signature by omitting the 'a' in between the two 'r's, only after a lapse of 10 years from 1957 or 1958. That takes us to 1967 or 1968. But is curious to note that in Ex.B1 which is alleged to have been executed in 1954, the word 'a' is missing in his signature. Therefore, there is a serious doubt regarding the genuineness of the document and it gives raise to an inference that the document could have been created subsequent to 1967-68 in view of the above said admission of DW2. It is also his admission that he could not produce any document to show that in 1954 he used to sign as "Sundar raman". In fact, the signature found in his deposition totally varies from the signature found in Ex.B1. No explanation is forthcoming as to from which date he used to sign like the one found in his deposition. In the deposition except the first letter 's' and middle letter 'd', other letters are not legible. Even the name cannot be read from the said signature. On the other hand the name with all the letters are found legible in the signature found in Ex.B1. Therefore, it is even doubtful whether DW1 could have attested Ex.B1.
34.So far as the other attester Nagarajan is concerned, it is the evidence of DW2 that the said Nagarajan was seen by him in Chidambaram in 1952 and 1953. It is also his evidence that the said Nagarajan was in South Street till 1992. However, he was not able to give the door number of the house in which he was residing during the said period. He was also not able to say who was feeding him. It is his statement that he heard the news that the said Nagarajan died at Kumbakonam, 10 years prior to the examination of DW1 in the Court. Even DW1 was not able to give the door number of the residence of the 2nd witness Nagarajan. According to his evidence, Nagarajan died about 10-15 years prior to the date on which he was examined as DW1 in the Court. Though Dws 1 and 2 would have stated that the said Nagarajan was known to them as an Astrologer, no document like Horoscope prepared by him in respect of the family members of DW1 has been produced. It is also an admission made by DW1 that the other persons who had knowledge of the execution of Ex.B1 Will refused to come to the Court to give evidence.
35. There is contradiction in the evidence adduced on the side of defendants regarding the avocation of DW2. It is the evidence of DW2 that he was working as an assistant to the Compounder of a doctor, who was a close relative of DW2. It was also his evidence that he functioned as LIC agent from 1958. But no document showing his signatures during that period has been produced for comparison. No where in the evidence of DW2, he has stated that he was a Vakil clerk. On the other hand, it is the evidence of DW1 that Sundararaman was not only an advocate clerk, but also a document writer. All these factors will go to show that DW2 should have been set up by the first respondent /first defendant to depose as an attester of EX.B1 Will. It is also noticed that the signature of Raju Naidu found in Ex.B1 differs from the signature found in Ex.B33 letter allegedly written by Raju Naidu on 15.02.1954. If all the discrepancies pointed out above are taken into consideration, one can arrive at a conclusion that the Will is surrounded by suspicious circumstances and the doubts have not been cleared by placing sufficient materials by the propounder of the Will viz., the first respondent/first defendant. Therefore, this Court hereby comes to the conclusion that Ex.B1 Will has not been proved to be genuine. This Court also come to the conclusion that the execution and attestation of the said Will has not been properly proved and that the suspicious circumstances surrounding the execution of the alleged Will have not been cleared by the first respondent/first defendant. Hence the contra finding rendered by the Court below is discrepant, erroneous and liable to be reversed.
36.In the forgoing paragraphs, while discussing the points 2,3 and point No.1, it has been held that the non-inclusion of the property bearing Door No.5, Chinnachetty Street, Chidamabaram as one of the suit properties regarding which the relief of partition was claimed will not make the suit bad for partial partition. It has also been held that the alleged exchange was not substantiated; that the property bearing Door No.5, Chinnachetty Street, Chidamabaram belonged to the deceased plaintiff Chandrakanthammal and that the non-inclusion of the same in the plaint schedule as one of the properties regarding which partition is sought for shall not effect the maintainability or merits of the case. It has also been held that the property bearing Door No.2, Angalamman Koil Street, Chidamabaram shown as Item No.1 in plaint 'A' Schedule was also a property of deceased Raju Naidu and that there is nothing wrong in including the said property along with other properties admitted to be the properties of deceased Raju Naidu in the suit for partition and that the suit of the deceased plaintiff Chandrakanthammal would not suffer from any defect or infirmity on the ground that the said property has also been shown to be one of the suit properties available for partition. In the discussion relating to Point No.1, we have seen that the alleged Will made by Raju Naidu dated 10.02.1954 cannot be true and that the suspicious circumstances surrounding the said Will have not been clearly explained by the propounder of the Will viz., the first respondent/first defendant and that the cloud created regarding the genuineness of the Will have not been cleared by reliable and cogent evidence by the propounder of the Will viz., the first respondent/first defendant. Under such circumstances, the succession to the properties of deceased Raju Naidu shall be governed by the rule of intestate succession, which were in force when succession to his estate opened viz., the moment he died on 19.02.1954. Before the death of Raju Naidu, the customary Hindu Law with some modification by the Hindu Women's Right to property Act, 1937 was in force. As per Customary law which stood amended by Hindu Women's Right to property Act, 1937 the widow of a Hindu dying intestate was given an equal share as that of a son, but such widow's share was not an absolute property of the widow and the widow would have a limited interest called life estate viz., the power to enjoy the property during her life time and on the death, the property would revert to the other heirs of her husband. Though such a limited estate was conferred on the deceased plaintiff Chandrakanthammal in respect of her = share in the properties left by her husband Raju Naidu, by virtue of Section 14 of the Hindu Succession Act, 1956, the said limited right got enlarged into an absolute title. Section 14 reads as follows: "(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance, or devise or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, also any such property held by her as stridhana immediately before the commencement of this Act.
"(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property"
37.Therefore, it is quite obvious that the share of deceased plaintiff Chandrakanthammal which was initially a limited estate had enlarged into an absolute estate on the advent of Hindu Succession Act, 1956. Since succession to the estate of deceased Raju Naidu had opened in 1954 itself i.e., before the advent of Hindu Succession Act, 1956, his daughter was not entitled to any share in them in the properties of Raju Naidu. From the above, it is quite obvious that, on the advent of Hindu Succession Act, 1956 deceased plaintiff Chandrakanthammal and her son viz., Chittibabu, the first respondent/first defendant became entitled to = share each in the properties of Raju Naidu. Therefore, the claim of the deceased plaintiff Chandrakanthammal for the relief of partition of her = share in the properties of Raju Naidu has got to be upheld. At the cost of repetition, it is hereby pointed that it has been held supra that the property bearing Door No.5, Chinnachetty Street, Chidambaram was the separate property of deceased Chandrakanthammal and the non-inclusion of the same in the suit for partition shall no way affect the maintainability of the suit. It has also been pointed out that the property bearing Door No.2, Angalamman Koil St., was one of the properties of Raju Naidu and the inclusion of the same in the suit for partition shall not affect the suit and in fact if the same was not included in the suit for partition, it would have affected the suit as the prayer would amount to a prayer for partial partition. Apart from the grievance expressed by the first defendant that Door No.2, Angalamman Koil St., should not have been included in the suit and No.5, Chinnachetty Street should have been included for partition, no evidence has been adduced to show that Raju Naidu had left some other property which were available for partition on the date of filing of the suit and the same were not included in the suit. Therefore, the claim for partition made by the deceased plaintiff Chandrakanthammal remains undefeated by the respondents / defendants. The Court below, on an erroneous appreciation of law and facts and also based on the erroneous finding regarding the genuineness of the Will, has chosen to negative the claim of the plaintiff for partition and dismiss the suit. This Court is satisfied that the said conclusion of the Court below is defective and infirm not only justifying but also warranting interference of this Court in exercise of its appellate powers.
38.For the reasons enumerated above, this Court comes to the conclusion that the finding of the Court below that the deceased plaintiff Chandrakanthammal was not entitled to the relief of partition deserves to be set aside and reversed and that it should be declared that the deceased plaintiff Chandrakanthammal was entitled to a common = share in the suit properties and the suit filed by her for partition and separate possession of her = share has to be allowed.
39.During the pendency of the suit, the deceased plaintiff Chandrakanthammal had executed a registered Will dated 07.11.1982 bequeathing one of her properties in favour of her daughter Indira and the said Will has been marked as Ex.A8. Since, the said Indira died subsequently, the deceased plaintiff Chandrakanthammal chose to execute a Will bequeathing the said property in favour of her grandson Ramakrishnan on 05.01.1989, which has been marked as Ex.A9. Subsequently, she chose to execute a gift settlement deed in favour of the said Ramakrishnan on 29.12.1997 under Ex.A10 in respect of the said property and a Will in respect of the remaining properties bequeathing the same in favour of her grandson through the deceased daughter on 31.12.1997 under Ex.A13. Though the said Will was produced and marked by the testator herself viz., the deceased plaintiff Chandrakanthammal, there is no evidence to show whether the said Will was her last Will. Ex.A8 Will dated 07.11.1984 had been made in respect of the property bearing Door No.5, Chinnachetty Street, Chidambaram. The sole legatee under the said Will was Indira, the daughter of Chandrakanthammal. Pursuant to the death of the above said Indira on 17.02.1987, the deceased plaintiff Chandrakanthammal chose to execute a fresh registered Will on 05.01.1989, which has been marked as Ex.A8 bequeathing the said property alone in favour of Ramakrishnan, her grandson through her deceased daughter Indira, superseding the earlier Will. Later on, the deceased Chandrakanthammal chose to make a concrete device to confer absolute title on Ramakrishnan in respect of the above said property viz., the property bearing Door No.5, Chinnachetty Street, Chidambaram absolutely during her life time itself by executing a registered gift settlement deed dated 29.12.1997 marked as Ex.A10. All the above said three documents pertain to the property bearing Door No.5, Chinnachetty Street, Chidambaram which is not one of the suit properties regarding which partition is sought for, and on the other hand, absolute title and power of disposition was claimed by deceased plaintiff Chandrakanthammal. Therefore, we need not trouble ourselves on the question whether Ramakrishnan would have got a valid title in respect of the property bearing Door No.5, Chinnachetty Street, Chidambaram as the same is not the subject matter of the suit. Suffice to state that the said property was not the property left by Raju Naidu in which the first defendant would have got a share equal to that of Chandrakanthammal. 40.However, in respect of the other properties of Raju Naidu shown to be the suit properties, the deceased plaintiff Chandrakanthammal has left a registered Will dated 31.12.1997. The same has been produced by the plaintiff herself and marked as Ex.A13. Since the said Will has been produced and marked by the testator herself, there shall be no question of disputing its genuineness. On the other hand, whether the said Will came into effect cannot be decided in this case as it is not a case involving the question of succession to the properties of the deceased plaintiff Chandrakanthammal. Deceased plaintiff Chandrakanthammal was alive till the disposal of the suit by the trial Court. Only during the pendency of the appeal suit before this Court, Chandrakanthammal died and Ramakrishnan got himself impleaded as the second appellant to represent the estate of the deceased Chandrakanthammal. Therefore, it shall be unnecessary and out of scope to go into the question of succession to the estate of the deceased first appellant. Suffice to state that the 2nd appellant represents the estate of the deceased first appellant/sole plaintiff for the purpose of the suit. In the C.M.P filed under Order XXII Rules 3 and 10 C.P.C viz., C.M.P.No.871 of 2009, this Court held that any finding rendered in such petition regarding the claim of the person based on a Will shall not be final and shall not constitute res judicata and that the said question could be decided summarily for the limited purpose of representation of the estate of the deceased party and that such a question has to be adjudicated in a separate proceeding. Observations were also made therein referring to a Supreme Court decision in Jaladi Suguna (deceased) through Lrs v. Satya Sai Central Trust and Others reported in (2008) 8 SCC 521 and Muniappa Nadar (died) and others v. K.V.Doraipandi Nadar and another reported in 1987 (1) MLJ 33. This Court made the following observations:- "The Hon'ble Supreme Court in the above said case did not stop with that and went further to add that such a finding rendered under Or.XXII R.5 shall not be final regarding the adjudication of the rights between the persons claiming under the deceased party and that an order passed under the above said rule shall be only for the purpose of enabling a person to represent the estate of the deceased. It was also held in clear terms that even a person who may not have a legally sustainable right to the subject matter of the suit, if he claims to be the testamentary heir of the deceased party, shall be construed to be an intermeddler and such an intermeddler, in the absence of another person, who is placed in a better position to represent the estate of the deceased, shall be competent to represent the estate of the deceased." It was also observed therein, "the petitioner claims to be the sole testamentary heir of the deceased sole appellant Chandrakanthammal. The Will propounded by the petitioner was produced in the Court during the life time of Chandrakanthammal, that too, by herself. Of course that will not be the proof that the same was her last testament. However, when there is no contra plea to the effect that the said will had been revoked and a new Will was executed, the plea raised by the petitioner on the strength of the Will for the limited purpose of coming on record as the legal representative of the deceased sole appellant, cannot be defeated. No rowing enquiry need be conducted in this regard. It is the admitted position that even in the absence of such a Will, the petitioner and the first respondent shall be the legal representatives of the deceased as the mother of the petitioner died on 17.02.1987 even during the life time of the alleged testatrix. As the first respondent is the rival party against whom the deceased sole appellant had preferred an the appeal, it is just and proper to allow the petitioner to come on record as the legal representatives of the deceased sole appellant Chandrakanthammal to represent her estate in the appeal that is pending against the first respondent." It shall be sufficient to refer to the above said observation made by this Court in the order dated 11.09.2009 passed in C.M.P.No.871 of 2007 which throws light on the position that the decision rendered in that petition under Or XXII R.5 was not a conclusive as to the inter se rights of the parities claiming to be the legal heirs (either testamentary or non-testamentary) of deceased Chandrakanthammal. Thus, the said question has to be necessarily kept open to be adjudicated in a separate proceeding or in the final decree proceedings. It shall be sufficient to held that the deceased Chandrakanthammal was entitled to a decree for partition directing division of her = share in the suit properties and separate possession of the same and that it is just and necessary to pass a preliminary decree to the above said effect. 41.In the result, the decree of the trial Court Dated 01.07.2002 dismissing the suit filed by the deceased plaintiff Chandrakanthammal for partition is set aside and a preliminary decree for partition as prayed for by the deceased plaintiff Chandrakanthammal represented by her grandson Ramakrishnan is granted directing division of suit properties into two equal shares and allotment of one such share to the estate of the deceased plaintiff represented by 2nd appellant Ramakrishnan. The question of mesne profits is relegated to be decided either in the final decree petition or in a separate petition to be filed for that purpose. Upto this point of litigation, the parties shall bear their respective costs.