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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. Karthikeyan, J.
M.K. Ravi - Appellant
Vs.
M.K. Giri - Respondent
Application No. 4088 of 2012; Civil Suit No. 733 of 2008; Original Applications No. 855 of 2008; Testamentary Original Suit No. 3 of 2009
Decided On : 14-09-2018
PARTITION - WILL - EXECUTION - GENUINENESS - ATTESTATION - PROOF - BURDEN - DELAY IN FILING PETITION - EXPLANATION - NECESSITY - WILL - CONTENTS - KNOWLEDGE OF TESTATRIX - ENGLISH LANGUAGE - INABILITY TO READ AND WRITE - EFFECT - DISINHERITANCE - REASONS - NECESSITY - PARTITION DEED - VALIDITY - BINDING EFFECT - INJUNCTION - VIOLATION - CONSEQUENCES - ATTACHMENT OF PROPERTY - DETENTION IN CIVIL PRISON.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of undivided 1/4th share in the schedule mentioned properties. The defendants, the plaintiff's brothers and sisters, resisted the suit claiming that the properties were bequeathed to them under a will executed by their mother. The plaintiff challenged the genuineness of the will and also filed an application seeking letters of administration with respect to the will.
Finding of the Court:
The court held that the plaintiff had not proved the execution of the will in a manner known to law. The attesting witness was not trustworthy and the propounder of the will had not given convincing answers and explanations regarding the delay in filing the petition, obtaining possession of the original will, and the appearance of the attesting witness. The court also held that the testatrix did not know English and did not know the contents of the will. The court further held that the partition deed allotting the properties to the mother of the parties was valid and binding on them. The court also held that the defendants had violated the order of injunction granted by the court and ordered the attachment of their 1/4th shares in the properties for a period of one year.
Issues: 1. Whether the will executed by the mother of the parties was genuine and valid? 2. Whether the plaintiff was entitled to partition and separate possession of undivided 1/4th share in the schedule mentioned properties? 3. Whether the defendants had violated the order of injunction granted by the court?
Ratio Decidendi: 1. The burden of proof lies on the propounder of a will to prove its execution and genuineness. Mere examination of an attesting witness is not sufficient. The sound and disposing state of mind of the testator must be established to the satisfaction of the court. Any delay in filing a petition for letters of administration must be explained. 2. A partition deed is valid and binding on the parties if it is registered and there is no challenge to its genuineness. 3. Violation of an order of injunction granted by the court is a serious matter and may result in the attachment of property and detention in civil prison.
Final Decision: The court dismissed the plaintiff's petition for letters of administration and decreed the suit for partition and separate possession of undivided 1/4th share in the schedule mentioned properties. The court also allowed the application seeking attachment of the defendants' 1/4th shares in the properties for a period of one year for violating the order of injunction.
C. V. Karthikeyan, J.
C.S.No.733 of 2008:-
C.S.No.733 of 2008 had been filed by the plaintiff M.K. Ravi against his brother M.K. Giri and sisters M.K. Mala and M.K. Kala, seeking a Judgment and Decree for partition of the schedule mentioned properties by metes and bounds and allotting share in the said properties to him and to put him in possession and also for a direction against the defendants to render accounts with respect to the suit properties and for costs of the suit.
2. The Plaintiff and the three defendants are sons and daughters of late C.H. Keshava Rao and K. Saroja Bai. The properties which are the subject matter of the suit have been described in schedule-A, schedule-B and schedule-C of the plaint.
3. The schedule-A is land and building in No.3, Shanmuga Mudali Street, Royapettah, Chennai, now known as No.3, Shanmugam Street, Royapettah, Chennai. Schedule-B is the first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai, measuring to an extent of 2900 Sq.ft together with 2900/18000 of undivided shares in the land. Schedule-C is the land and terraced building with 3 stories and premises bearing door No.3, H. Siddiah Road, 5th Cross, Bangalore City to an extent of 2400 sq.ft.
4. The parents of the plaintiff and defendants, namely C.H. Kesava Roa and K. Saroja Bai died on 1.10.1994 and 02.06.1999 respectively. During the life time of the mother, late K. Saroja Bai, the family properties were partitioned through a partition deed dated 02.12.1994. Properties were allotted to the plaintiff and the defendants and also to late K. Saroja Bai.
5. The schedule mentioned properties, were allotted to late K. Saroja Bai. After the partition on 02.12.1994, the properties became the absolute properties of K. Saroja Bai. She died on 02.06.1999 leaving behind the plaintiff and the defendants as her legal heirs.
6. It had been stated in the plaint that the plaintiff was entitled to an undivided 1/4 share in the properties. It had also been stated that the first defendant was collecting rent from the C-Schedule property and the second defendant was collecting rent from A-Schedule property and the third defendant was collecting rent from B-Schedule property. Since the defendants did not come forward to partition the schedule mentioned properties, the plaintiff instituted the suit seeking the reliefs mentioned above.
7. The second defendant M.K. Mala filed her written statement. The first and third defendants adopted the written statement filed by the second defendant. In the written statement of the second defendant, the relationship among the parties had been stated as true. It was also stated that the partition had been effected on 02.12.1994 but, it was stated that the partition was an inequitable partition. It was further stated that K. Saroja Bai was allotted the schedule mentioned properties to her share and they became her absolute properties. It was, however, further stated that she executed a will dated 15.03.1995. It had been stated that the plaintiff was aware of the said will and had no right to claim a share in the properties. It had been stated that the suit is bad for non-joinder of necessary parties, namely the legatees of the last will of K. Saroja Bai. The second defendant sought dismissal of the suit.
8. On the basis of the said pleadings, the following issues had been on 21.10.2010:-
"1. Whether K. Saroja Bai is the mother of the plaintiff?
2. Whether K. Saroja Bai died intestate?
3. Whether the partition pleaded by the parties is true and binding?
4. Whether the plaintiff is entitled for a share, if so what is his share?
5. Whether the will dated 15.03.1995 is the last will of K. Saroja Bai, which was executed by her in sound and disposing state of mind?
6. Whether the suit is bad for non-joinder of necessary parties?.
7. Is the plaintiff entitled for rendition of accounts?
8. Whether the value made by the plaintiff is not correct?
9. Whether the defendant is entitled for exemplary costs?
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