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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR
M.R. Ramamurthy (Deceased) & Others
Versus
Radha (Deceased) & Others
T.O.S.No.40 of 1994 & C.S.No.673 of 1987
Decided On : 03-09-2010
WILL - PROBATE - EXECUTION AND ATTESTATION - PROOF - BURDEN - SECTION 68 OF THE EVIDENCE ACT, 1872 - PRESUMPTION UNDER SECTION 90 OF THE EVIDENCE ACT, 1872 - APPLICABILITY TO WILLS - SECTION 69 OF THE EVIDENCE ACT, 1872 - PROOF OF WILL BY HANDWRITING - SECTION 90 OF THE EVIDENCE ACT, 1872 - ANCIENT DOCUMENT - GENUINENESS - PROOF - SUSPICIOUS CIRCUMSTANCES - DISPELLING OF SUSPICIONS - ONUS - SECTION 63(C) OF THE SUCCESSION ACT, 1925 - COMPLIANCE - SECTION 68 OF THE EVIDENCE ACT, 1872 - EXECUTION OF WILL - PROOF - REQUIREMENTS - SECTION 70 OF THE EVIDENCE ACT, 1872 - EXCEPTIONS - APPLICATION TO WILLS - SECTION 4 OF THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - RETROSPECTIVE EFFECT - SUIT FILED OR CLAIM MADE PRIOR TO THE ACT - EFFECT - PLEA OF DEFENCE BASED ON BENAMI TRANSACTION - BAR - ACKNOWLEDGMENT OF TITLE OF BENAMI OWNER - ESTOPPEL - ADVERSE POSSESSION - OUSTER AND HOSTILE TITLE - PLEADING AND PROOF - LIMITATION - CO-OWNERS - POSSESSION BY ONE CO-OWNER - ADVERSE TO OTHER CO-OWNERS - PROOF - PARTITION - PRELIMINARY DECREE - MESNE PROFITS - FINAL DECREE PROCEEDINGS OR SEPARATE APPLICATION.
Fact of the Case:
The plaintiffs filed a suit for grant of probate of the Will allegedly executed by deceased M.Vittal Rao on 22.11.1955. The defendants filed a suit for partition and separate possession of 1/3 share of the plaintiffs therein in the properties described in the plaint schedule and for mesne profits. As the properties concerned in both the suits and the parties are one and the same, the suits were tried together and are now being disposed of by a common judgment.
Finding of the Court:
1. The execution and attestation of Ex.P2-Will and the sound disposing state of mind of Vittal Rao at the time of alleged execution of the same have not been proved by the plaintiffs in the manner known to law and that hence these issues have to be decided against the plaintiffs. 2. The plea of the plaintiffs that the suit property was purchased by Vittal Rao benami in the name of his brother Raja Rao and that right from the date of purchase Vittal Rao alone was in possession and enjoyment of the property as its owner, will amount to a plea which is prohibited under the provisions of Benami Transaction (Prohibition) Act, 1988. 3. The plea of adverse possession and limitation raised by the plaintiffs are not sustainable. 4. The defendants (plaintiffs in C.S.No.673/1987) are entitled to a preliminary decree for partition directing division of suit properties into three equal shares and allotment of one such share to them.
Issues: 1. Whether the Will dated 22.11.1955 executed by M.Vittal Rao is true and valid? 2. Whether the plaintiffs are entitled to the relief as sought for? 3. Whether the defendants can claim right over the property without obtaining Lettes of Administration in respect of the alleged Will executed by Vittal Rao? 4. Whether the defendants have perfected their title to the suit property by adverse possession as contended in the written statement? 5. Whether the claim of the plaintiffs is barred by law of limitation? 6. To what other reliefs if any, the parties are entitled?
Ratio Decidendi: 1. Section 68 of the Evidence Act, 1872 mandates that a document required by law to be attested shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, subject to the process of the court and capable of giving evidence. 2. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years; that in order to obviate such difficulties or impossibilities to prove such execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872, which does away with the strict rule of proof of private documents. 3. The presumption under Section 90 of the Evidence Act, 1872 shall not be applicable to a Will if it is surrounded by suspicious circumstances and the suspicious circumstances have not been dispelled by the plaintiffs by adducing reliable evidence. 4. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. 5. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. 6. Section 4 of the Benami Transactions (Prohibition) Act, 1988 provides that no suit, claim or action to enforce any right in respect of the property held benami against the person in whose name the property is held or against any person shall lie by or on behalf of a person claiming to be the real owner of such property. It also provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 7. The right of the persons claiming to be the real owners who have got back the property prior to the date on which the Act was brought into force shall not be affected by the provisions of the Act.
Final Decision: C.S.673 of 1987 is allowed and a preliminary decree for partition directing division of suit properties into three equal shares and allotment of one such share to the defendants 3 to 10 (plaintiffs 3 to 10 in C.S.673 of 1987) is passed. The question of mesne profits shall be decided in the final decree proceedings or in a separate application for the said purpose. Parties are directed to bear their respective cost till this stage of litigation. Testamentary Original Suit No.40 of 1994 is dismissed. There shall be no order as to costs in both the suits.
1. O.P.No.157 of 1991, which came to be converted into a Testamentary Original Suit T.O.S.No.40 of 1994 is one for the grant of probate of the Will allegedly executed by deceased M.Vittal Rao on 22.11.1955.
2. C.S.No.673 of 1987 is one for partition and separate possession of 1/3 share of the plaintiffs therein in the properties described in the plaint schedule and for mesne profits.
3. As the properties concerned in both the suits and the parties are one and the same, the suits were tried together and are now being disposed of by a common judgment.
4. T.O.S.No.40 of 1994 O.P.No.157/1991, which has been subsequently converted into T.O.S.No.40 of 1994 seeking probate of the Will dated 22.11.1955 left by Vittal Rao, was originally filed by M.R.Ramamoorthy and M.R.Srinivasan, who are plaintiffs 1 and 2 therein. The same was originally filed against the defendants 1 to 6, who have been arrayed as plaintiffs 1 to 6 in the connected civil suit. After the death of both the original plaintiffs, namely M.R.Ramamoorthy and M.R.Srinivasan, who are defendants 1 and 2 in the connected civil suit, their legal representatives were impleaded as plaintiffs 3 to 9 in the T.O.S. Except Malathy, who figured as the third plaintiff in the TOS, all other plaintiffs in the TOS figure as defendants in the connected suit. i) The averments made in the plaint in T.O.S.No.40 of 1994 are as follows:-The deceased Vittal Rao, who owned and possessed properties within the State of Tamil Nadu, executed a Will on 22.11.1955 and registered it as document No.21/1955 on the file of the Office of the Sub-Registrar, T.Nagar. Vittal Rao subsequently died on 19.11.1958 and hence his last Will and Testament dated 22.11.1955 became effective. In the said Will, Vittal Rao has appointed M.R.Ramamoorthy and M.R.Srinivasan, the original plaintiffs in TOS as executors. The Will was duly executed by Vittal Rao at Madras on 22.11.1955 in the presence of witnesses, whose names appear at the foot thereon. As late Krishnamurthy Rao was willing to abide by the terms of the Will, there arose no necessity for the plaintiffs to approach the court for the grant of probate of the said Will. Also on the death of Krishnamurthy Rao, the defendants continued to abide by the terms of the suit Will until 1986 and subsequently they set up a claim to the properties bequeathed under the Will and filed a suit, namely the connected suit C.S.No.673/1987, seeking partition of the properties covered by the Will. The plaintiffs in the TOS have also filed written statement in the said civil suit making averments relying on the Will. Under such circumstances, the plaintiffs have to approach this court seeking probate of the Will dated 22.11.1955. As none of the attesting witnesses would be traced, plaintiffs are not able to get their affidavits. The assets likely to come to the hands of the plaintiffs in the aggregate are worth Rs.5,150/- and after deducting all items which the plaintiffs are allowed to deduct, the value of the net assets shall be Rs.4,150/-. The plaintiffs in the TOS undertake to duly administer the property and credits of the testator Vittal Rao concerned in his Will and submit an inventory within six months from the date of grant of probate and also to render an account of the property and credit within a year from the said date. Therefore, the plaintiffs shall be permitted to prove the Will in solemn form and get probate of the Will with the Will annexed. The deceased had left behind him M.R.Krishnamurthy Rao, M.R.Ramamoorthy Rao and M.R.Srinivasan, all sons of Raja Rao, the brother of Vittal Rao entitled to claim to be non-testamentary legal heirs of the deceased in the absence or failure of the Will. The defnedants 1 to 6 are the wife and children of Krishnamurthy Rao, who died subsequently. Hence probate of the last Will dated 22.11.1955 left by Vittal Rao with Will annexed shall be granted in favour of the plaintiffs in the TOS. ii) The first defendant died before fi
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