S. Sasikala and Others Vs. Siriyapushpam and Others - Court Judgment

(Prayer: SA(MD)No.596 of 2013: The above Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 03.07.2013 made in A.S.33 of 2012 on the file of IV Additional District Judge, Madurai, reversing the well considered judgment and decree dated 29.06.2012 made in O.S.No.593 of 2010 on the file of Principal Sub Judge, Madurai. SA(MD)No.597 of 2013: The above Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 03.07.2013 made in A.S.34 of 2012 on the file of IV Additional District Judge, Madurai, reversing the well considered judgment and decree dated 29.06.2012 made in O.S.No.631 of 2010 on the file of Principal Sub Judge, Madurai.)

1. These two Second Appeals is directed against the judgment and decree dated 03.07.2013 made in A.S.No.33 of 2012 on the file of IV Additional District Judge, Madurai, reversing the judgment and decree dated 29.06.2012 made in O.S. No. 593 of 2010 on the file of Principal Sub Judge, Madurai and the judgment and decree dated 03.07.2013 made in A.S.34 of 2012 on the file of IV Additional District Judge, Madurai, reversing the judgment and decree dated 29.06.2012 made in O.S.No.631 of 2010 on the file of Principal Sub Judge, Madurai.

2. While admitting the above two second appeals, the following substantial question of law was framed:

(i) Whether the Will dated 10.04.1991 is true, genuine and having legal validity so as to supersede the Will dated 24.10.1982 ?

3. The above two second appeals heard together and disposed by the Common Judgment for the purpose of joint disposal of these Appeals, the Appellants in S.A.No.597 of 2013 will be treated as the plaintiff in the suit in O.S.No.631 of 2010, which is for partition and separate possession of share and consequential relief of permanent injunction.

4. The short facts of the cases are as follows:The suit property belonged to one Rathinam and he purchased the same in his wife name Mrs.Mariammal. The above said Rathinam and Mariammal are the parents of the plaintiff Siriyapushpam and the defendants 1 to 10. The said Rathinam acquired the suit schedule property along with other properties as mentioned in the Will dated 24.10.1982, which was executed by both the husband and wife. The said properties were self acquired properties of the above said Rathinam, who purchased 3rd and 4th items of the Will in the name of his wife Mariammal. Thereafter a joint and mutual Will was executed by them with an intention to bequeath to their sons excluding one Mr. Ganesan, who relinquished his right over the said property as son of them.

5. The above said Rathinam died on 10.04.1991. While so, it was alleged by the plaintiff that another Will dated 02.09.1991, which was executed by the survivor Mrs. Mariammal by canceling the earlier Will dated 24.10.1982 and bequeathed the two items of property, which is mentioned in the earlier Will executed in favour of the legal heirs of one Mr. Ganesan, who is the 1st son and the other five daughters as if that the properties are the self acquired properties and based on the above said Will the plaintiff claims the share in the suit schedule property as 1/5th share and for separate possession.

6. The defendants 7 to 10 filed S.O.P. No.15/2001 for the grant of Succession Certificate in respect of the deposit in the name of Late Mrs. Mariammal, being the 1st respondent in the said S.O.P. The plaintiff / Siriyapushpam and the other defendants 1 to 6 were impleaded as party respondent in the said S.O.P. No. 15 of 2001. The respondents 2 to 8 were pleaded that they are entitled for Succession Certificate based on the subsequent Will dated 02.09.1991 executed by Mrs. Mariammal.

7. The above S.O.P.No.15 of 2001 and O.S.No.593 of 2010 and O.S.No.631 of 2010 were taken jointly and disposed of by the Principal Sub Court, Madurai, wherein the following issues have been raised:1. Whether the petitioner in S.O.P.No.15 of 2001 are entitled to succession certificate based on the Will dated 24.10.1982 ?

2. Whether the plaintiffs in O.S.No.631 of 2010 are entitled for 1/5th share in view of the Will dated 02.09.1991 ?

3. Whether the plaintiff in O.S.No.593 of 2010 are entitled for permanent injunction for entitlement of the suit property exclusively by them ?

4. What relief the plaintiffs are entitled in O.S.No.593 of 2010 and O.S.No.631 of 2010 ?

8. The trial court after elaborate trial and careful consideration regarding facts and circumstances of the case and documentary evidence, issue the Succession Certificate for all the legal heirs of Rathinam and Mariammal based on the Will dated 24.10.1982 in which the deposit has not been mentioned and also there is no exclusive class to deal with any movable properties. The said Will dated 24.10.1982, executed by the above said Rathinam and Mariammal and marked as Exhibit P4 is valid and it is a joint and mutual Will and irrevocable by Mariammal after the demise of the above said Rathinam and thereby dismissed the suit in O.S.No.631 of 2010 and decreed the other suit in O.S.No.593 of 2010.

9. Aggrieved by the common judgments dated 29.06.2012 passed in the above two suits, the defendants 5 to 8 in O.S.No.593 of 2010 preferred an Appeal in A.S.No.33 of 2012; plaintiffs in O.S.No.631 of 2010 preferred an Appeal in A.S.No.34 of 2012 and the respondents 2 to 8 in S.O.P.No.15 of 2001 have preferred an Appeal in A.S.No.35 of 2012 before the IV Additional District Judge at Madurai.

10. Being aggrieved, the present second appeals have been preferred by the Appellants.

11. The learned counsel Mr.R.Suriyanarayanan appearing for the Appellants in these Appeals challenged the findings recorded by the first appellate Court.

12. The following points arise for consideration in these second appeals:

1. Whether the Will dated 10.04.1991 is true, genuine and having legal validity so as to supersede the Will dated 24.10.1982 ?

2. Whether the Will dated 24.101982 is a joint and mutual Will irrevocable or is a joint Will revocable by the survivor of the executants Late Mrs. Mariammal ?

13. The main question for all these issues raised before the trial court revolved around the above issues regarding the recitals of the Will dated 24.10.1982, which was marked as Exhibit P4.

14. It is the admitted facts by all the parties to the proceedings of the above Appeals about the execution of the above said Will dated 24.10.1982, by Mr.Rathinam and Mrs.Mariammal, the parents of Siriyapushpam, Ganesan, Padmavathy, Malliga, Parameswari, Shanmugam, Moorthy, Baskar (a) Murugaiya and Thangamani and the same was marked as Exhibit P4 and there is no dispute over it.

15. In order to make it clear and justification regarding the issues involved in the above Will, it is relevant to reiterate as follows:

LANGUAGE

16. From the above recital is clear that the properties mentioned in the above said Will are self acquired property of Rathinam, which is also admitted by the co-executants Mrs.Mariammal, wife of Rathinam, who was a name lender for the benefit of the family in the fiducially capacity. Hence the above said Mariammal did not have any independent right over the properties in Item Nos. 3 and 4 of the said Will, which stood in her name.

17. Besides, it was also categorically mentioned, after their lifetime the under mentioned properties and also any of the property left at the time of their death would devolve only on the sons namely Shanmugam, Moorthy, Baskar @ Murugaiya and Thangamani and they have mentioned their intention that the property should not devolved on late Ganesan and their daughters. The above recitals that .. LANGUAGE would clearly mean that the revocation, alteration and modification would be done by jointly not by the survivor and hence the above Will is not intended for revocation by the survivor of late Mr. Rathinam, i.e. Mariammal. Though the above Will is always revocable by the testator alone, who is having the power and title over the property mentioned therein. In this case, the above said Rathinam is the only owner of the entire properties and the name lender Mrs. Mariammal would not have any right over the properties and has no independent right to execute any Will as alleged by Exhibit R1, dated 02.09.1991. Therefore the said Will could not be sustainable under law and also she doesn t have any right of revocation of the said Will, since she did not have any right or title over the said properties.

18. The provisions of Abolition of Binamy Transaction Act is not applicable in this case, when a person who is holding the property in the fiducially capacity of her or his family could not have independent right except as a trustee. Therefore the said Mariammal has no right to create any Will over the said properties, which stood in her name. On the other hand, the words .. LANGUAGE would clearly express the intention of the testator that the property should devolve only after their lifetime. In such case, after the lifetime of the earlier owner Mr. Rathinam, his wife Mariammal has the lifetime interest over the properties and thereby impliedly she is the one of the beneficiary after the lifetime of Mr. Rathinam and in case she survived by him assuming that the property stands in her name. Therefore in such circumstances, the above Will is a joint and mutual Will, which is irrevocable since the survivor is one of the beneficiary for her lifetime. Therefore the plaintiff in O.S. No. 631/2010 has no right to get any relief.

19. In support of the above contention, the very competent counsel appearing for the Appellants relies upon the judgment reported in 1986 (1) SCC, 701 (Dilharshankarc. Bhachech Vs. Controller of Estate Duty).The learned counsel also relies upon the judgment reported in 2010(1) MLJ, 20 (M. Senthilkumar Vs. P. Dhananjayan and ors.). As per the above judgment, joint Will executed by wife along with her husband in favour of the appellant in the year 1995 cannot be cancelled by husband at later point of time.

20. The learned very competent counsel also relies upon the judgment reported in 2005 (3) CTC 151 (Hindu Community in General Citizens Vs. The Commissioner HR and CE). According to the above judgment, the intention of the executants has to be ascertained on the basis of expressions used and on the basis of the conduct at the time of making WILL and it cannot be determined in the light of subsequent events Expression Sarva Sudhanthiramai (absolutely) should be read to mean that the surviving testator would have only the life interest to enjoy the income from the combined properties subject to the fiduciary duty to keep the properties intact for charities Intention is clear that surviving testator would have no unqualified or unrestricted power to enjoy properties to defeat or to the determent of the gift over to the charities Expression Sarva Sudhanthiramai cannot be construed to mean that the survivor would have the absolute right to alienate or gift away or dispose of the properties in any manner and remaining property (Meethamulla) in the WILL would only mean the corpus of the properties remaining after the death of one of them and income remains unspent after enjoyment by the survivor WILL can be revoked during lifetime of both of them Right to revoke the WILL, and after the lifetime of one of them and after the survivor receives the benefit under the WILL is lost Wife surviving husband had right of enjoyment of income from the properties and she cannot enjoy the properties in such manner to defeat the object of the trust Right of enjoyment is qualified one in that properties are to be kept intact for charities Held that WILL is mutual WILL since WILL has been executed jointly and both husband and wife have agreed that the joint disposition should not be revoked by the survivor and during lifetime of both testator or testatrix have power to modify or revoke the WILL. The RW1, who is the plaintiff in O.S. No. 631/2010 during cross-examination, admitted in her deposition, thereby LANGUAGE

21. The above admissions by the RW1 the plaintiff in O.S. No.631 of 2010 itself would clearly evidence that she has not in possession and enjoyment of the suit property and the defendants 7 to 10 were in possession and continue by the defendants 11 and 12.

22. Regarding proof of the WILL, the same has to be established by the profounder of the Will, i.e. the RW1. However, in the instant case, the RWI, profounder of the Will did not produce the Original Will (Exhibit R1) and it was not proved as required under the provisions of Indian Evidence Act.

23. In fact, the lower appellate Court without taking note of the plea in the written statement filed by the defendants in para 7, wherein, the defendants deny the Will comes to the conclusion on mere admission by PW1 in his cross examination, which would not be the admission of genuineness of the Will or the Will has been executed by the testator with free mind without influence of any others as required under law of evidence for which they rely upon the judgment reported in 2012 (1) MWN (Civil) 278 (Shakkubai Vs. Kathirvel), under Section 63 of Evidence Act Proof of Will that mere admission of execution of Will by the defendants in the witness box held, will not amount to true and valid execution of Will in manner required under law.Therefore, for conclusion of the lower appellate court, contrary to the Section 63 of Law of Evidence is unsustainable and the WILL is not proved by the profounder of the Will / RW1, under which RW1 claims partition in O.S.No.631 of 2010.

24. In the light of the above decisions and conclusion, the lower appellate court erred in holding that the Will is only a joint will and it is revocable, since there is no express provision in the Will for prohibiting the survivor of the one of the joint executor. In all the cases, it is clearly mentioned that the joint executor had come to a conclusion expressing for bequeathing the property to particular persons as beneficiary conclusively providing life interest on the joint executors either of them has no right to revoke on the death of one testator.

25. Whereas, in the instant case, the above said Rathinam and Mariammal has clearly admitted and opined to bequeath the property in favour of their sons by name Mr. Shanmugam and three others excluding the late Ganesan and daughters cannot be altered by way of subsequent Will when she has been right to enjoyed the property till her lifetime and also their right to revoke or alter the Will being a joint right would be restriction on either or survivor in the absence of other. Therefore the alleged Will is unsustainable in the eye of law and on both, i.e. it is not properly proved as required under Section 63 of Law of Evidence and also against the restrictions in Clause in the Will.

26. Further, though there is no specific appeal preferred as against the common judgment with regard to an Appeal in A.S. No. 35 of 2012 against S.O.P. No. 15 of 2001, it is still open for observing the right of the beneficiaries under the clause of Will LANGUAGE would clearly cover the deposit in the name of late Mrs. Mariammal to be devolved on only the sons / beneficiaries in the said Will and not on others.

27. Therefore this court is safely come to a conclusion that either the subsequent original Will allegedly to have been executed by one Mrs. Mariammal has not been produced before the trial court or not properly proved as required under Section 63 of Law of Evidence.

28. In the result, all the points are answered in favour of the Appellants in these Appeals.

29 .Hence on the score of it, I conclude that the question of law favouring the Appellants in both these Appeals arises in this case and the findings of the lower appellate court in its common judgment dated 03.07.2013 made in A.S. 33/2012 on the file of IV Addl. District Judge, Madurai reversing the judgment and decree dated 29.06.2012 made in O.S. No. 593 of 2010 on the file of Principal Sub Judge, Madurai AND A.S. 34/2012 on the file of IV Addl. District Judge, Madurai reversing judgment and decree dated 29.06.2012 made in O.S. No. 631 of 2010 on the file of Principal Sub Judge, Madurai are hereby set aside by confirming the judgment and decree dated 29.06.2012 passed in O.S. No. 593 of 2010 on the file of Principal Sub Judge, Madurai and judgment and decree dated 29.06.2012 made in O.S. No. 631 of 2010 on the file of Principal Sub Judge, Madurai.

30. In the result, the above Second Appeals are allowed accordingly. No costs.