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2010 Supreme(Mad) 521
High Court of Judicature at Madras
M. DURAISWAMY
Chinnammal & Another
Versus
Valliammal & Others
Second Appeal No.383 of 2003
Decided On :Decided On : 10-02-2010
For the Appellans:R. Subramaniam, Advocate.
For the Respondents:R1, V. Udayakumar, Advocate, R2, R3 R. Muthaian, G.A.
Ratio:
In case of a joint Will, the Will comes into effect immediately after the death of any one of the testators.
Headnote:(A)Indian Succession Act, 1925(39 of 1925)-Sec.104-Indian Evidence Act, 1872(1 of 1872)-Sec.91, 92-Will-Joint Will-Death of one testator-Effect-A suit was filed for declaration of title by alleging that the 1st plaintiff purchased it from a person and the plaintiffs 2 and 3 succeeded to the properties from the 1st plaintiff and his wife by a joint will-Defendants pleaded that they purchased it and denied the title of the plaintiffs by alleging that the land came to the previous owners by assignment and within the assignment period it was sold to the 1st plaintiff and thus the sale was invalid-The defendants further stated that the joint Will would come into effect only on the death of both the testators and since one of the testator was alive, the plaintiffs 2 and 3 could not get title to the suit properties and thus the plaintiffs had no title to the suit properties-While the trial Court decreed the suit, the first appellate Court allowed the appeal-Appeal by the plaintiffs-Parties stood by their stands-Held, in case of joint Will, the death of one of the testator passes on his portion of the title in the property to the legatee-The defendants, though pleaded title to the properties with themselves failed to produce the supporting documents-Appeal allowed.
(B)Indian Succession Act, 1925(39 of 1925)-Sec.104- Will-Joint Will-Death of one testator-Effect- In case of a joint Will, the Will comes into effect immediately after the death of any one of the testators.
In a joint Will, the Will comes into effect immediately after the death of any one of the testators. The findings of the lower appellate court that the joint Will comes into effect only after the death of both the testators is not correct. The lower appellate court without assigning any reason for not agreeing with the findings of the trial court, reversed the judgment and decree of the trial court. The lower appellate court ought to have assigned reasons for not agreeing with the judgment and decree of the trial court. Since the appellants have produced documentary and oral evidences to prove their case, the oral evidence let in by the respondents cannot prevail over documentary evidences produced by the appellants/plaintiffs. Para 22
The above Second Appeal arises against the judgment and decree in A.S.No.80 of 2001 on the file of Principal District Court, Perambalur reversing the Judgment and Decree in O.S.No.12 of 1993 on the file of District Munsif Court, Perambalur.
2. The plaintiffs 2 and 3 in the suit are the appellants in the above second appeal. The third defendant is the first respondent and the defendants 1 and 2 are the respondents 2 and 3 in the above second appeal.
3. The plaintiffs filed the suit in O.S.No.12 of 1993 on the file of District Munsif Court, Perambalur for declaration of title and mandatory injunction against the defendants 1 and 2 to transfer the pattas of the suit properties in the name of 2nd and 3rd plaintiffs.
4. The brief case of the plaintiffs in the suit are as follows:-
(i) According to the plaintiffs, the suit properties belong to them. Under the sale deed dated 4.6.1966, the first plaintiff purchased the first item of the suit property from one Namanan son of Namanan. Since the date of purchase, the first plaintiff is in possession and enjoyment of the first item of the suit property.
(ii) According to the plaintiffs, the first plaintiff purchased the second item of the suit property from one Perumal son of Undukatti Raman on 12.9.1966. Since the date of purchase, the first plaintiff is in possession and enjoyment of the second item also. The patta for these properties were transferred in the name of the first plaintiff. From the date of purchase, the plaintiffs are in possession and enjoyment of the suit properties. Subsequently, the plaintiffs learnt that the patta for the suit properties were transferred in favour of the first defendant without any notice to the plaintiffs.
(iii) According to the plaintiffs, the third defendant nor her vendors had any title or interest over the suit properties and she is not in possession and enjoyment of the same. The third defendant alleges that she purchased the suit properties from one Namanan son of Nallan in respect of first item of the suit property and in respect of the second item of the suit property, she alleges that she purchased the said property from one Perumal son of Ramasamy in the year 1987. The alleged sale deeds are not true and valid in law. The first plaintiff has taken several steps to get the pattas transferred in his name. But, there is no response from the defendants 1 and 2. The third defendant colluding with the revenue officials got pattas transferred in her name without notice to the plaintiffs. Therefore the plaintiffs filed the suit.
5. The brief case of the defendants 1 and 2 are as follows:
(i) According to the defendants 1 and 2, item No.1 of the suit property was originally a Government Poramboke land and it was assigned in favour of one Namanan son of Namanan on 18.7.1962. Violating the assignment conditions, the said Namanan sold the properties to the first plaintiff on 4.6.1966. Therefore, the assignment automatically got cancelled. The purchase by the first plaintiff in respect of first item of the property is not valid and grant of patta transfer in respect of item No.2 of the suit property will be decided after enquiry. Therefore, defendants 1 and 2 prayed for dismissal of the suit.
6. The brief case of the third defendant is as follows:
(i) According to the third defendant, sale deeds dated 4.6.1966 and 12.9.1966 are not true. The same cannot convey any title, interest or possession of the plaintiffs in respect of the suit properties. One of the vendors of the plaintiffs namely, Namanan seems to have got the first item of the suit property by way of assignment in the year 1962. As per the conditions of the said assignment, the alleged sale in favour of the first plaintiff by the said Namanan in respect of item No.1 of the suit property is invalid.
(ii) According to the third defendant, he is a bonafide purchaser in respect of item No.2 of the suit property having purchased the same from one Perumal son of Ramasamy by means of registere
