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2020 Supreme(Mad) 78
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
Gajarajan - Appellant
Versus
S. Gandhimathi Selvam - Respondent
A.S. No. 554 of 2018
Decided On : 28-02-2020
For the Appellant:V. Raghavachari, Advocate. For the Respondent:M. Sivavarthanan, Advocate.
Headnote:
Civil Procedure Code,1908 - Order 41, Rule 1 - Section 96 - Transfer of Property Act - Section 28 - plaintiffs claim - Transfer of Property - Plaintiff is sister of defendant - One was mother of plaintiff and defendant - Plaintiff’s mother purchased item of suit property for valid sale consideration and enjoyed same till her death - Items of suit properties were originally belonged to plaintiff’s grandfather Subarea grounder - He executed a settlement deed in favor of plaintiff’s mother - On same day was put in possession and enjoyment of suit items schedule properties - Revenue accounts were transferred in the name of - Said had sold some portion of property to third parties - died intestate - Hence plaintiff inherited as legal heir of along with defendant - Plaintiff has been enjoying suit properties jointly along with defendant – Held, Shaky signature feeble mind an unfair and unjust disposition of property propounded himself taking leading part in making of Will which he receives substantial benefits interventions arbitrations and alterations in Will are all in nature of circumstances which shows suspicion about execution of Will itself - Present facts are concerned Scribe himself has deposed before trial Court that he did not know art of typing - But in will he had signed as typed and drafted by him - This apart one of attester deposed that he purchased stamp papers for will and the will was registered - However trial Court found that will was unregistered - Though witness deposed that it was executed at Registrar’s office there is no proof to establish same - This apart sold property also has been included in will - All these factors found by trial Court reveals that will is suspicious and unregistered and witnesses also deposed with contradictions - Partition even defendant while claiming title over suit property is bound to establish that he is entitled for property - Plaintiff could able to establish that mother is absolute owner of property - Plaintiff is further established that will is suspicious document and genuinely of will has not been proved by defendant during course of trial - This being factum established this Court is of considered opinion that defendant has not established fact regarding will executed in his favor with reference to suit schedule property and per contra plaintiff could able to establish that she is entitled for half share in property and accordingly trial Court has not committed any perversity or infirmity as such – Appeal dismissed
JUDGMENT
(Prayer: Appeal Suit filed under Section 96 Read with Order 41, Rule 1 of the Code of Civil Procedure, against the judgment and decree in O.S.No.3 of 2016 dated 4th June 2018, on the file of the III Additional District Court, Vellore at Tirupattur.)
1. The appeal suit is directed against the judgment and decree passed in O.S.No.3 of 2016 dated 04.06.2018.
2. The defendant is the appellant in the appeal suit and the respondent/plaintiff instituted a suit for partition and separate possession of plaintiff's half share in the suit properties and for grant of permanent injunction against the defendants from alienating and encumbering the share of the plaintiff and for costs.
3. The facts in brief as narrated in the plaint are as follows:
The plaintiff is the sister of the defendant. One Chinnakannammal was the mother of the plaintiff and the defendant. The plaintiff’s mother Chinnakannammal purchased the 4th item of the suit property for a valid sale consideration on 17.02.1963 and enjoyed the same till her death. The 1 to 3 items of the suit properties were originally belonged to the plaintiff’s grand father Subbaraya gounder. He executed a settlement deed in favour of the plaintiff’s mother Chinnakannammal on 07.09.1971. On the same day, the Chinnakannammal was put in possession and enjoyment of suit items 1 to 3 schedule properties. Revenue accounts viz., Patta, Chitta, Adangal, were transferred in the name of Chinnakannammal. The said Chinnakannammal had sold some portion of the property to third parties. Chinnakannammal died intestate on 7.12.2006. Hence, the plaintiff inherited as the legal heir of Chinnakannammal along with defendant. The plaintiff has been enjoying the suit properties jointly along with defendant. The defendant gave proceeds to the plaintiff. Hence, the plaintiff and defendant alone are now entitled to equal share in the suit property. The plaintiff had called upon the defendant on 15.10.2015 to divide the suit properties into two equal shares by metes and bounds and to allot one such share in her favour. But the defendant evading the same. The plaintiff was suspecting the defendant and verified the documents and learnt that the defendant transferred the properties in her name and create forged documents. Hence, the plaintiff was issued a legal notice on 07.11.2015 to the defendant. The defendant received the same and gave reply notice on 1.12.2015 with false allegations. Hence, the plaintiff filed this suit. The defendant has no exclusive right or title over the suit property. Hence, the suit.
4. The written statements filed by the defendant reveals that the contentions set out in the plaint are denied and the gist of the written statements are extracted hereunder:
The suit is not maintainable and liable to be dismissed. It is true that the 1 to 3 items of the suit properties were originally belonged to the plaintiff’s grand father Subbaraya gounder. He executed a settlement deed in favour of the defendant and plaintiff’s mother Chinnakannammal on 7.9.1971. It is true that on the same day, she was put in possession and enjoyment of items 1 to 3 schedule properties and it is true the revenue accounts viz., Patta, Chitta, Adangal, were transferred in the name of Chinnakannammal. As per the provision of settlement deed dated 7.9.1971, the male decedents of Chinnakannammal are alone entitled to the suit properties if anything remain after the life time of Chinnakannammal. Hence, the plaintiff is not entitled for partition for the suit properties items 1 to 3. The defendant is the only male legal heir of the Chinnakannammal. Chinnakannammal sold some portion of properties to third parties. Hence, the extent and boundaries of the 1 to 3rd items of the suit properties are not correct. Chinnakannammal with her sound state of mind of dispossession of property, she executed a will in favour of the defendant in the presence of witnesses on 16.12.2001. On the same day, the plaintiff had received Rs.1,00,000/- from
