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2013 Supreme(Mad) 3036
High Court of Judicature at Madras
P.R. SHIVAKUMAR, J.
S.D. Ramanathan (died) & Others
Versus
Baby Ammal (died) & Others
S.A. No. 423 of 2010 & M.P. Nos. 1 of 2010 & 1 of 2011
Decided on : 29-08-2013
For the Appellants:W.M. Abdul Majeed, Advocate.
For the Respondents:P.L. Narayanan, Advocate.
The main legal point established in the judgment is the requirement to prove the due execution and validity of a Will, the presumption of genuineness of a registered deed of sale, and the mutual destructiveness of inconsistent pleas.
Headnote:
Probate - Property Dispute - Settlement Deed - [Probate, Property Dispute, Settlement Deed] - The court discussed the legal provisions related to probate, including the conclusive proof of due execution and validity of a Will, and the exceptions to the conclusiveness of a probate order. The court also highlighted the legal principle that a registered deed of sale carries a presumption of genuineness, and the onus is on the defendant to prove that the deed was not executed and was a sham and nominal transaction. The court found that the probate order was obtained by fraud and collusion, and the Will allegedly executed by the deceased was not proved. The court also emphasized that the defendants' plea of adverse possession was mutually destructive of their plea that the sale deed was sham and nominal, and that they failed to prove adverse possession.
Fact of the Case:
The suit involved a property dispute between the plaintiffs and the defendants, where the plaintiffs sought declaration of their title to the property, recovery of possession, and mesne profits. The defendants contested the suit, claiming adverse possession and disputing the validity of a settlement deed and a Will.
Finding of the Court:
The court found that the probate order was obtained by fraud and collusion, and the Will allegedly executed by the deceased was not proved. The court also found that the defendants' plea of adverse possession was mutually destructive of their plea that the sale deed was sham and nominal, and that they failed to prove adverse possession.
Issues: The issues included the validity of the settlement deed and the Will, the conclusiveness of the probate order, and the defendants' claim of adverse possession.
Ratio Decidendi: The court held that the probate order was not conclusive due to fraud and collusion, and the defendants failed to prove the validity of the Will. The court also emphasized that the defendants' plea of adverse possession was mutually destructive of their plea that the sale deed was sham and nominal, and that they failed to prove adverse possession.
Final Decision: The court dismissed the second appeal, confirming the judgment and decree of the lower appellate court.
1. Defendant Nos.2 to 8 in the Original Suit are the appellants in the second appeal. The plaintiffs 1 to 4 in the Original Suit are the respondents 1 to 4 in the second appeal. The first respondent Baby Ammal is no more. On the death of the first respondent, the 5th respondent Mohandas Reddiar has been impleaded as the legal representative of the deceased first respondent Baby Ammal by order dated 11.04.2012 made in M.P.No.4/2012. Respondents 1 to 4 in the second appeal filed the suit O.S.No.1883/2004 on the file of the District Munsif Court, Vellore for declaration of title to the suit property, recovery of vacant possession and for mesne profits. The suit was dismissed by the trial court without cost by its judgment and decree dated 03.02.2008. On an appeal preferred by the respondents 1 to 4 (plaintiffs) in A.S.No.9/2009 on the file of the Sub Court, Vellore, the learned Subordinate Judge reversed the judgment of the trial court and decreed the suit with cost regarding the prayers for declaration and recovery of possession. The learned Subordinate Judge has also found the plaintiffs entitled to recover a sum of Rs.700/- per month as mesne profits from the date of filing of the suit till delivery of possession. Since the first defendant is no more, the other defendants, namely defendants 2 to 8 have chosen to file the present second appeal challenging the decree of the lower appellate court reversing the decree passed by the trial court. For the sake of convenience, the parties shall be referred to in accordance with their ranks in the Original Suit and at necessary places, description of the parties with their ranks in the second appeal shall be provided.
2. The Original Suit was filed on the basis of the plaint averments, which are in brief, as follows:
The suit property was purchased by Hamsaveni Ammal, the mother of Baby Ammal (first plaintiff) as a vacant site under a registered sale deed dated 27.08.1958. Hamsaveni Ammal, in turn, sold it to the first defendant S.M. Duraisamy Reddiar (since deceased), who was none other than her husband and the father of the first plaintiff, under a registered sale deed dated 16.12.1960. The deceased first defendant S.M. Duraisamy Reddiar took a loan of Rs.10,000/- from Vellore Town Co-operative Building Society and constructed a building. Thereafter he executed a registered Settlement Deed dated 15.12.1962 conferring life interest on Hamsaveni Ammal and after the death of Hamsaveni Ammal in favour of the first plaintiff Baby Ammal and conferring absolute title on the plaintiffs 2 to 4, who would get it after the death of the first plaintiff subject to the life interest created in favour of Hamsaveni Ammal and the first plaintiff. The said S.M. Duraisamy Reddiar died in or about 1973. Thereafter Hamsaveni Ammal also died on 14.01.1993. On the death of Hamsaveni Ammal, the first plaintiff Baby Ammal (since deceased) got the property to be enjoyed till her death without causing any alienation or encumbrance. After the death of Hamsaveni Ammal, possession of the property should have gone to the first plaintiff, but the first defendant, who was residing with Hamsaveni Ammal continued to be in possession. As such the property and the original title deed would be deemed to be in his illegal possession. The plaintiffs 1 to 4 approached the first defendant after the death of Hamsaveni Ammal and asked him to vacate and hand over possession of the suit property. But the deceased first defendant was evading the same. Hence the first plaintiff was constrained to issue a legal notice dated 15.08.1994 to the first defendant demanding delivery of vacant possession of the suit property to the first plaintiff and also claiming damages for use and occupation at the rate of Rs.750/- per month. The first defendant gave a false reply on 12.09.1994 alleging that he got the property by virtue of a registered Will executed by his mother, namely Hamsaveni Ammal. Hamsaveni Ammal did not have any aliena
