S. Swamikkannu, J.
1. The defendant P. Kamakshi Ammal in O.S. No. 9i20 of 1974 on the file of the Court of the learned XII Assistant Judge, City Civil Court, Madras, has filed A.S. No. 710 of 1978 against the judgment and decree dated 21.4.1977 in the said O.S. No. 9120 of 1974.
2. The plaintiff P. Kamakshi Ammal in O.S. No. 3470 of 1976 on the file of the Court of the learned XII Assistant Judge, City Civil Court, Madras, has filed A.S. No. 770 of 1978 against the judgment and decree dated 21.4.1977 in the said O.S. No. 3470 of 1976.
3. Both these suits - O.S. Nos. 9120 of 1974 and 3470 of 1976 were disposed of by a common judgment dated 21.4.1977 by the Court of the learned XII Assistant Judge, City Civil Court, Madras.
4. The plaintiff-P. Venkatesan in O.S. No. 9120 of 1974 was examined as P.W. 1. Exs.A-1 to A-21 were filed on behalf of the plaintiff P. Venkatesan, P. Kamakshi Ammal - the defendant in O.S. No. 9120 of 1974 examined herself as D.W.1. D.W.2 Guruswami was also examined on behalf of the defendant. Exs.B-1 to B-15 were filed on behalf of the defendant.
5. O.S. No. 9120 of 1974 was filed by the plaintiff P. Venkatesan against the defendant P. Kamakshi Ammal for declaration that he is the sole and absolute owner of the moiety of the property No. 25, Ramanujam Street, T. Nagar and for delivery of possession of the same from the defendant and for recovery of Rs. 5,400 as damages for use and occupation.
6. O.S. No. 3470 of 1976 was filed by the plaintiff P. Kamakshi Ammal therein against the defendants - P. Venkatesan, Radha, Mahadevan and Kantamma for declaration that the will dated 9.9.1955 and the settlement deed dated 30.5.1956 are not valid and binding on the legal heirs of late Rangaramma and for issue of an injunction against the defendants restraining them from proceeding with or from attempting to evict the plaintiff in H.R.C.No. 2837 of 1969 and for appointment of a Commissioner for effecting division of all moveable properties belonging to the estate of late Bangaramma and to declare the plaintiff's right to a moiety of share in all the assets of the estate of late Bangaramma and pass a preliminary decree on the basis of the Commissioner's report.
7. In O.S. No. 9120 of 1974, the plaint averments read as follows:- The suit property originally belonged to Devalla Viswanathaiah who died on 4.4.1940 leaving a Will under which he bequeathed his entire property absolutely in favour of his wife Bangaramma who obtained letters of administration with the Will annexed in O.P. No. 323 of 1946 and Bangaramma was in exclusive possession and enjoyment of the same. The plaintiff Venkatesan is the daughter's son of late Viswanathaiah. The plaintiff was being brought up as the foster son and 'abhimana putra' by both Viswanathaiah and his wife Bangaramma. Bangaramma executed a registered Will dated 9.9.1955 bequeathing the said property absolutely in favour of the plaintiff subject to the mortgage dated 21.6.1953. On the death of Bangaramma on 15.9.1968, the plaintiff became the absolute owner of house and ground No. 25, Ramanujam Street, T. Nagar, Madras. He called upon the defendant Kamakshi Ammal who was a tenant under Bangaramma to attorn to him and pay the rents due. The defendant not only wilfully defaulted to pay rent, but also denied the tenancy and set up a title in herself to one-half of the property. The plaintiff filed H.R.C.No. 2837 of 1969 for eviction of the defendant Kamakshi Ammal and eviction was ordered by order dated 26.4.1971. On appeal by the defendant, the Court of Small Causes held that it was a fit case wherein the Rent Controller should have delegated the question of title to be decided by a Civil Court. The defendant is in wrongful possession of the portion of the property ever since the date of death of Bangaramma without paying any rent. The plaintiff was therefore obliged to file the present suit for declaration of plaintiff's title, for eviction of the defendant and for recovery of the portion in her possession with mesne profits for three years prior to suit at the rate of Rs. 150 per month as damages for use and occupation. Bangaramma was competent to execute the settlement deed in question. She executed a settlement deed in favour of the plaintiff on 30.5.1956 in respect of the suit property. Bangaramma acquired absolute title to the suit property in view of the provisions made under Hindu Succession Act. Bangaramma has confirmed and ratified the settlement deed by various transactions which she entered into along with the plaintiff. Hence the suit.
8. The defendant Kamakshi Animal has filed a written statement and her contentions therein read as follows:- This defendant does not admit that her father executed any Will on 20.2.1940 and that it was his last Will, properly and validly executed by him. Bangaramma was not in exclusive possession and enjoyment of the suit property as absolute owner thereof. Bangaramma would be entitled to succeed to a moiety of late Viswana-thaiah who died only intestate. The Will dated 20.2.1940 must have been fabricated Will and Bengaramma had no right to execute any Will on 9.9.1955. There was no assurance held by Bangaramma. The plaintiff taking advantage of Bangaramma's weakness and infirmity due to old age, he must have practised fraud and undue influence in obtaining the settlement deed dated 30.5.1956. The defendant denies the genuineness of the settlement deed. Bangaramma had no right to execute any settlement deed as alleged on 30.5.1956 as she was a limited owner and she had only widow's estate. There is no reason for Bangaramma or for late Viswanathaiah to prefer the plaintiff alone when there are as many as three grand-daughters and five grand-sons. This defendant is in lawful possession and enjoyment of the suit property. There was no necessity for Bangaramma to execute the settlement deed. The document is a bogus transaction and it was never given effect to nor could it be acted upon as a valid legal instrument. The plaintiff cannot claim any mesne profits and much less Rs. 5,400. The plaintiff's suit is frivolous and vexatious and the same has got to be dismissed with costs.
9. On these pleadings, the following issues were framed by the trial Court for trial:
(1) Whether the Will dated 20.2.1940 is true and valid and binding on the defendant?
(2) Whether the settlement deed dated 30.5.1956 is true, valid and binding on the defendant?
(3) Whether Bangaramma became the absolute owner of the suit property under Hindu Succession Act, 1956?
(4) Whether the suit property belongs to the plaintiff by virtue of the settlement deed dated 30.5.1956?
(5) Whether the defendant was a tenant of Bangaramma in respect of the suit property?
(6) Whether the plaintiff is entitled for the damages; if so, at what rate?
(7) Whether the plaintiff is entitled to possession of the suit property?
(8) Whether the suit is not properly valued?
(9) To what relief?
10. In O.S. No. 3470 of 1976, the plaint averments read as follows:- The plaintiff's (Katnakshi Ammal) father Viswanathaiah died on 4.4.1940 leaving behind him, his wife Bangaramma and the plaintiff Kamakshi Ammal who is his daughter. Viswanathaiah appears to have executed a Will on 20.2.1340 bequeathing all his properties consisting of the house bearing Nos. 24 and 25, Ramanujam Street, T.Nagar, Madras-17 and his provident fund accumulations in favour of his wife late Bangaramma absolutely, it appears that the Will was probated by late Bangaramma in O.P.No. 323 of 1946. Bangaramma died on 15.9.1988. The plaintiff became entitled to a molety of the assets belonging to the estate of late Bangaramma and entitled to half-share therein as the only sole surviving daughter, the other half-share falling to the defendant and his brother Gopal being the sons of the predeceased daughter under Section 8 of the Hindu Succession Act. The settlement deed dated 30.5.1956 alleged to have been executed by Bangaramma in favour of the defendant Venkatesan is neither true nor genuine document, and it cannot confer any title on the defendant Venkatesan. There is no reason or any cause whatsoever for late Bangaramma to disinherit her only daughter the plaintiff herein. The disposition made in the settlement deed is quite unnatural, considering the fact that the deceased Bangaramma was as much attached to the grand-children through the plaintiff herein as she was attached towards the defendant. Bangaramma would have naturally provided her properties to her widowed daughter the plaintiff herein with had large family to support and maintain, Bangaramma was suffering from asthmatic attack daring the period May 1956. She had no Independent legal advice and it was not her voluntary act. The defendant had executed settlement deed by exercising fraud and undue influence. Bangaramma must have executed the Will as well as the settlement deed without knowing the contests, Bangaramma did not mention anything about, the execution of the document to the plaintiff either privately or otherwise or to any other relations. Subsequent to the alleged execution of the settlement deed, the plaintiff's mother dealt with the property as if it was her own and no attempt was made by her to give any effect to the settlement deed. The settlement deed was never acted upon and the settlement deed was not given any effect or operation by late Bangaramma. The defendant cannot derive any title under the settlement deed dated 30.5.1956. The defendant's claim under the settlement deed is quite illegal and fraudulent and because of his claim on the basis of the settlement deed, casting cloud on the title to the suit property claimed by the plaintiff herein, she is obliged to institute the suit for declaration. The plaintiff is the co-owner in premises No. 25, Ramanujam Street, T.Nagar, Madras, and the defendant cannot claim any exclusive right or ownership therein. The plaintiff is not his tenant nor is she liable to pay any rent to the defendant Venkatesan. Bangaramma had no right to execute the settlement deed in favour of the defendant Venkatesan even if she was competent to execute any settlement deed. The plaintiff is in possession of the suit property. The defendant Venkatesan has filed H.R.C. No. 2837 of 1969 on the ground of wilful default in payment of rent and wilful denial of title. He has also obtained an eviction order dated 30.5.1956 which is null and void ab initio.
11. The defendant in O.S. No. 3470 of 1976 filed a written statement, inter alia contending as follows:- Viswanathaiah executed the Will who has full power of disposition and the Will executed by the said Viswanathaiah is duly probated and the plaintiff is fully aware of the same as she was the only daughter surviving in the family. Bangaramma left no estate at the time of her death as all the estates which she got by testamentary disposition from her husband absolutely in her favour were settled in favour of the defendant herein by a registered deed of settlement dated 30.5.1956, reserving to herself only a life interest therein. Knowing fully well the disposition made by Bangaramma, the plaintiff never opposed any disposition made by her nor challenged the Will or settlement deed executed by her during her lifetime. The plaintiff was fully aware of the settlement deed as early as 1959, at any rate by 23.9.1963. The plaintiff was a tenant under late Bangaramma. Bangaramma was obliged to incur debts to meet the extravagant needs of the plaintiff and members of the family by mortgaging the property obtained by her from her husband as absolute owner. These sums the plaintiff neither cared to supplement nor cared to return and ultimately Bangaramma had to shift from one mortgage to another, ultimately discharged by the defendant and late Bangaramma by disposal of the part of the property No. 25, Ramanujam Street, Madras-17. It is not correct to state that Bangaramma had no independent legal advice nor was the execution of settlement deed involuntary. The settlement deed was never kept secret and from the date of its execution the deed of settlement is well known to the plaintiff, her sons, daughters and ail relatives. It is equally false to state that the settlement deed was not acted upon. The defendant derives title only under the settlement deed and the plaintiff cannot deny the validity of title that is derived from the settlement deed, The plaintiff is neither co-owner nor a joint owner of the suit property and the plaintiff has no claim, right, title or interest in the suit property. The execution of the settlement deed by Bangaramma cannot be disputed by the plaintiff herein. The defendant is entitled to the suit property as a matter of course under a settlement deed dated 30.5.1956 left by Bangaramma and there is no cloud cast on the title. The suit is hopelessly barred by limitation. The suit has got to be dismissed with costs.
12. The plaintiff in O.S. No. 3470 of 1976 has filed a reply statement, and her contentions therein read as follows:
13. The plaintiff never admitted the execution of the Will by late Viswanathaish nor accepted the genuineness of any Will alleged to have been executed by Viswa-nathaiah. The defendant is put to strict proof that late Viswanathaiah was competent to execute the Will and that it was duly executed by him and that the Will relied on by the defendant in the present suit is a genuine Will The settlement deed alleged to have been executed by Bangaramma is not a valid document. The plaintiff is entitled to a moiety of the estate immediately on the demise of late Bangaramma. The plaintiff never borrowed any amount from late Bangaramma nor secured any financial assistance from her. The plaintiff is not a tenant under the defendant and the claim of the suit property is in her own independent right. The suit has been properly valued for purposes of court fee and jurisdiction and the suit is not barred by limitation. Hence the suit is maintainable.
14. On the pleadings in O.S. No. 3470 of 1976, the following issuess were framed for trial by the lower court:
(1) Whether the plaintiff Kamakshi Animal is entitled to the moiety of the suit property as the legal heir to the estate of late Viswanathaiah on the death of Bangaramma?
(2) Whether the alleged settlement deed dated 30.5.1956 alleged to have been executed by Bangaramme is true, genuine and valid?
(3) To what reliefs are the parties entitled?
15. Common evidence was taken in both these suits. The plaintiff in O.S. No. 9120 of 1974, namely, Venkatesan was examined as P.W. 1. Exs.A-1 to A-21 were filed on behalf of the plaintiff. The defendant in O.S. No. 9120 of 1974, namely, Kamakshi Ammal, who is also the plaintiff in O.S. No. 3470 of 1976 was examined as D.W.I. D.W.2 Guruswami was also examined on her behalf and Exs.B-1 to B-15 were filed.
16. On Issues Nos. 1, 2, 4 and 5 in O.S, No. 9120 of 1974 and Issues Nos. 1 and 2 in O.S. No. 3470 of 1976, the lower court held that the suit property Is the self-acquired property of late Viswanathaiah and that the Will Ex.A-1 executed by late Viswanathaiah has been duly probated and the same cannot be said to be a fabricated document. The defendant Kamakshi Aroma has attested Exs.A-19 and A-20 mortgage deeds executed by Bangaramma as an identifying witness after knowing the contents therein, and therefore her attestation should be taken as proof of her consent and the acknowledgement of the correctness in the deed and that therefore Kamakshi Ammal is estopped from questioning the Will executed by late Viswanathaiah. Bangaramma had executed the settlement deed in respect of the suit property in favour of Venkatesan in a sound disposing state of mind and at her own volition, and that the same has come into force. The lower Court has further held that it has been clearly proved by the plaintiff Venkatesan that Bangaramma acquired the suit property by virtue of the Will executed by late Viswanathaiah and that he became entitled to the suit property in pursuance of the settlement deed executed by Bangaramma. The lower court had held that the Will dated 20.2.1940 is true, valid and binding on the defendant Kamakshi Animal; that the settlement deed dated 30.5.1956 is true, valid and binding on the defendant Kamakshi Ammal; that the plaintiff Venkatesan became entitled to the suit property by virtue of the settlement deed dated 30.5.1956 and that the defendant Kamakshi Ammal was a tenant under Bangaramma in respect of the suit property. The lower court further held that the plaintiff Venkatesan is entitled to the moiety of the suit property as the legal heir to the estate of late Viswanathaiah on the death of Bangaramma.
17. Under Issue No. (3) in O.S. No. 9120 of 1974, the lower court held that Bangaramma was in possession and enjoyment of the suit property at the time when the Hindu Succession Act came into force; that admittedly she died on 15.9.1968; and that Bangaramma was in possession and enjoyment of the suit property at the time when the Hindu Succession Act came into force; that admittedly she died on 15.9.1968; and that Bangaramma became the absolute owner of the suit property under Hindu Succession Act, 1956.
18. Under Issue No. (6) in O.S. No. 9120 of 19/4, the lower court held that in view of the admission made by Kamakshi Ammal, the plaintiff Venkatesan is entitled to collect the amount as damages for use and occupation at the rate of Rs. 150, for a peiod of three years and he is also entitled to collect the same at the same rate in future till the recovery of possession.
19. Under Issue No. (7) in O.S. No. 9120 of 1974, the lower court held that the plaintiff Venkatesan is entitled to recover possession of the suit property.
20. Under Issue No. (8) in O.S. No. 9120 of 1974, the lower court held that the said issue had already been decided as a preliminary issue.
21. Under Issue No. (9) in O.S. No. 9120 of 1974, the lower court held that the plaintiff is entitled to a decree, and in the result, the suit O.S. No. 9120 of 1974 was decreed as prayed for with costs.
22. Under Issue No. (3) in O.S. No. 3470 of 1976, the lower court held that the plaintiff in that suit viz., Kamakshi Ammal is not entitled to a decree; and in the result, the suit O.S. No. 3470 of 1976 was dismissed with costs of the defendants. The plaintiff Kamakshi Ammal was directed to pay court fee due on the plaint. Aggrieved by the common judgment of the lower court, Kamakshi Ammal has preferred A.S. Nos. 710 and 770 of 1978.
23. Mr. R.S. Venkatachari, learned Counsel for the appellant Kamakshi Ammal, has inter alia, contended that the court below should have seen that there are no circumstances warranting or justifying the execution of any settlement deed by Bangaramma in favour of the respondent Venkatesan, and further to disinherit the sole surviving daughter and several grandchildren (as many as four grand-sons and three grand-daughters) and prefer only the respondent Venkatesan, as sole legatee.
24. During the time of hearing of the appeal A.S.No. 710 of 1978, the respondent Venkatesan filed C.M.P.No. 12615 of 1984 to receive the original settlement deed dated 30.5.1956 executed by Bangaramma in his favour as additional evidence in A.S. Nos. 710 and 770 of 1978 on the file of this court. Originally, Ex.A-2 was filed, which was the photostate copy of the settlement deed dated 30.5.1956. Since no objection was raised on behalf of the appellant herein, the argument proceeded on the document as though secondary evidence was admissible. But before us, during the course of argument, the marking of photostate copy is objected to. Hence C.M.P. No. 12615 of 1984 was taken out for the filing of the original document-settlement deed itself by P. Venkatesan (respondent in A.S. Nos. 710 and 770 of 1978). No doubt, a counter-affidavit was filed on behalf of Kamakshi Animal the appellant in A.S. Nos. 710 and 770 of 1978. But this being a registered document to which there could be hardly any objection, we directed that this document be received in additional evidence. As regards proof, of course, the case of Mr. S.V. Jayaraman is that the attestors are alive. If that be so, we were of the view that the document has to be proved in the manner known to law. However, inasmuch as the truth and validity of the document is questioned, it is also left open to be proved by proper evidence. For this purpose, we directed the learned XII Assistant Judge, City Civil Court, Madras, to render a finding on the proof of this document as well as on the question whether the settlement deed is vitiated by fraud as alleged by the appellant, as also about its truth and validity. We also made it clear that whatever evidence is available at the command of respective parties, they are at liberty to let in the same.
25. Accordingly, before the learned XII Assistant Judge, City Civil Court, the original settlement deed executed by Bangaramma in favour of the respondent Venkatesan on 30.5.1956 was marked as Ex.A-22 by the said court, and the evidence of P.W.2 Saroja Bhagavath and P.W.3 Rajendra Bhagavath - attestors to the said document were also recorded, and a finding was given by the said learned XII Assistant Judge, City Civil Court, on 29.11.1984 that Ex.A-22 settlement deed dated 30.5.1956 is a true and valid document executed by Bangaramma and that the same had not been got executed due to coercion or undue influence. In other words, the finding was given by the learned XII Assistant Judge, City Civil Court, in favour of Venkatesan - the respondent herein.
26. Mr. R.S.Venkatachari, learned Counsel for the appellant - Kamakshi Ammal contended that the finding of the lower court on this aspect is not correct. We will later discuss about this finding in an appropriate context and give our decision.
27. Mr. S.V. Jayaraman, learned Counsel for the respondents in both these appeals, contended that the lower court has taken into consideration all the evidence available on record, both oral and documentary, and came to the correct conclusion, and even after the direction of this Court in C.M.P.No. 12615 of 1984 in A.S.No. 710 of 1978, the lower court has rendered a finding in favour of Venkatesan - the respondent herein holding that Ex.A-22 is the valid settlement deed executed by Bangaramma and that Ex.A-22 is a genuine document. Under the circumstances, the learned Counsel for the respondents herein submits that there is no ground for setting aside the judgment and decree of the lower court.
28. The points that arise for consideration in both these appeals are as follows:
(1) Whether the Will dated 20.2.1940, which was probated as per Ex.A-1, is true, valid and binding on the appellant Kamakshi Ammal?
(2) Whether Ex.A-22 settlement deed dated 30.5.1956 had been executed by Bangaramma, and whether the same is true, genuine and valid document and binding on Kamakshi Ammal the appellant herein?
(3) Whether Bangaramma became the absolute owner of the suit property under the Hindu Succession Act, 1956?
(4) Whether the suit property belongs to Venkatesan - the respondent herein by virtue of Ex.A-22 settlement deed dated 30.5.1956?
(5) Whether Kamakshi Ammal - the appellant herein was s tenant of Bangaramma in respect of the suit property?
(6) Whether Venkatesan - the respondent herein is entitled for damages, if so, at what rate?
(7) Whether Venkatesan - the respondent herein is entitled to possession of the suit property?
(8) Whether Kamakshi Ammal - the appellant herein is entitled to a moiety of the suit property as the legal heir to the estate of late Viswanathaiah on the death of Bangaramma?
Points Nos. (1) to (8):
29. The subject-matter of the suit property is bearing door No. 25, situate in Ramanujam Street, T.Nagar, Madras-17. The plaintiff in O.S. No. 9120 of 1974, viz., Venkatesan has filed the suit for declaration that he is the absolute owner of the other moiety of the suit property. The defendant in the said suit, namely, Kamakshi Ammal admits the title of the plaintiff Venkatesan and his brother regarding the other moiety. Hence the plaintiff Venkatesan in the said suit has also filed the suit for declaration in respect of the other moiety and for recovery of the suit property and also for recovery of damages for use and occupation for a period of three years prior to the suit. Kamakshi Ammal - the defendant in O.S. No. 9120 of 1974 has filed the suit in O.S. No. 3470 of 1976 as against the plaintiff Venkatesan in O.S. No. 9120 of 1974 and three others, for declaration that the Will dated 9.9.1955 and F.x.A-22 the settlement deed dated 30.5.1956 executed by late Bangaramma are not valid and binding on the legal heirs of late Bangaramma. Kamakshi Ammal the plaintiff in O.S.No. 3470 of 1976 has also filed the said suit for issue of a permanent injunction against the defendants therein from proceeding with or from attempting to evict Kamakshi Ammal (the plaintiff) in H.R.C. No. 2837 of 1969 and for passing a preliminary decree in her favour in respect of her half share in the suit property. The contention of Venkatesan - the plaintiff in O.S. No. 9120 of 1974 is that the suit property originally belonged to late Viswanathaiah. Bangaramma is the wife of Viswanathaiah. Kamakshi Ammal - the defendant in O.S. No. 9120 of 1974 is the daughter of late Viswanathaiah and Bangaramma. Venkatesan - the plaintiff in the said suit and his brother Gopal are grandsons of late Viswanathaiah and Bangaramma, The mother of Venkatesan and Gopai is the daughter of Viswanathiah and Bangaramma by name Lakshmi who pre-deceased Viswanathaiah and Bangaramma. The contention of Kamakshi Ammal the defendant is that the property is the ancestral property of late Viswanathaiah. In support of her contention, she has filed the proclamation of sale in C.S.No. 811 of 1919 as Ex.B-13 wherein house bearing door No. 247, Mint Street is found in the description of property. Ex.B-14 is the judgment in O.S. No. 305 of 1934. Ex.B-15 is the certified copy of the decree in the said suit. The defendant Kamakshi Ammal contends that No. 247, Mint Street originally belonged to the ancestral property of late Viswanathaiah, and that late Viswanathaiah purchased the suit property from out of the sale amount of No. 247, Mint Street, Madras.
30. It is a well-established principle of law that when in a suit a party claims that any particular item of the property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value.
31. Kamakshi Ammal - the defendant should prove that the family owned the aforesaid house and that the suit property has been purchased from out of the sale proceeds of No. 247, Mint Street, Madras, by late Viswanathaiah. It is her evidence that her father told that he sold the house situate at Mint Street and that he purchased the suit property from out of the sale consideration. Bangaramma had no knowledge about the sale of house No. 247, Mint Street, Madras, by late Viswanathaiah. Except the oral and interested testimony of D.W.1 Kamakshi Ammal, no other evidence is available to show that late Viswanathaiah. purchased the suit property from out of the sale consideration said to have been derived by him by sale of No. 247, Mint Street, Madras. It is relevant in this connection to note that the evidence of D.W.I Kamakshi Ammal itself would belie her own contention. It is her evidence that her grand-father sold Mint Street property to Ramaiah during the year 1929. It is the evidence of D.W.2 Guruswami that many documents are avail-able to show the existence of the ancestral properties and that those documents were handed over to their advocate by him. If realiy, Kemakshi Ammal - the defendant has got any document to prove the existence of ancestrai nucleus, the defendant would have produced the same before the tower court or in this Court. Kamakshi Ammal - the defendant has not proved that sufficient ancestral nucleus was available in the family and that the suit property has been purchased from out of the said income. So also it is not proved by Kamakshi Ammal - the defendant that the suit property has been purchased by late Viswanathaiah from out of the sale consideration said to have been derived by him by the sale of Mint Street house, Madras, If really, late Viswanathaiah sold Mini Street house, definitely the documents would have been available to prove the same, Kamakshi Ammai - the defendant has not filed any document to show that late Viswanathaiah sold the said house-in such circumstances, the contention raised on behalf of the defendant Kamakshi Ammal - appellant herein that the suit property has been purchased from out of the sale consideration of Mint Street house, Madras, cannot be accepted as true and the same cannot be upheld,'
32. Ex,A-5 is the Will executed by late Viswanathaiah in favour of his wife Banga-ramma. We shall now discuss the merits and demerits of the contentions of the defendant Kamakshi Ammal - the appellant herein regarding the genuineness of the said Will. Ex.A-1 is the photostat copy of the probated Will executed by late Viswanathaiah in favour of his wife Bangaramma, and the Will is dated 20.2.1940. In Ex.A-1, late Viswanathaiah stated that he was possessed of house arid ground No. 20, Ramanujam Street, T. Nagar, Madras, which he has constructed out of his own earnings. In Ex.A-1 Will, late Devalla Viswanathaiah has further stated as follows:. The property is worth about Rs. 12,000 (Rupees Twelve Thousand only)
There is also my General Provident Fund accumulation, standing to my credit with the Government of Madras, which becomes payable on my retirement or death if sooner. In respect of both the two items of properties 1 am the absolute owner and there is no one having any manner of right to or interest in the same other than myself.
I devise and bequeath the immoveable property specified above and the amount available in the General Provident Fund to my wife, Mrs. Devalla Bangaramma alias Bangaru, absolutely with full power of alienation by way of sale, gift, settlement or otherwise....
33. This Will is attested by three persons, namely, (I) V. Narasimham, (2) M.V.Sita-raman and (3) P.T. Pattabhiramayya, Advocate. Is is also endorsed by these persons that the executant of this Will signed this Will on 20.2,1940 in their presence when they were present at the same time. The registration endorsement shows to the effect that the Will was presented at the (private) residence of D. Viswanathaiah at No. 20, Ramanujam Street, Thayagaroya Nagar between the hours of 2 and 3 p.m. on 9th March, 1940 by D. Viswanathaiah. The said Will has been registered as No. 7 of 1940 of Book 3, Volume I, pages 51 to 53, and the same bears the seal of the Sub-Registrar of Mylapore with dated 13.3.1940.
34. There is no dispute regarding the identity of the property. Hence the house No. 20 described in the Will and the house No. 25 described in the plaint refer only to the suit property. Even in the Letters of Administration (O.P. No. 323 of 1946), this Court on 7.2.1946 had described the suit property as No. 20, Ramanujam Street, T. Nagar, Madras. The recital in a Will that the property dealt with thereunder is the property of the testator is relevant evidence under the Indian Evidence Act. Taking all the aforesaid circumstances into consideration, we hold that the suit property is the self-acquired property of late Viswanathaiah.
35. It is contended by Mr. R.S.Venkata-chari, learned Counsel for Kamakshi Ammal - the defendant/appellant herein that the Will Ex.A-1 must have been fabricated by Venkatesan - the plaintiff/respondent herein, and that it is not a genuine document. Before we consider the facts in the instant case, it is well to set out the principles which govern the proving of a Will. This was considered by the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajammat : AIR1959SC443 . It was observed in that case that the mode of proving a Will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. If the caveator alleged undue influnce, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might- be very shaky and doubtful and evidence in support of propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indioate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last Will of the testator. Further, a propounder himself might take a prominent part in the execution of the Will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstances attending the execution of the Will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court, would grant probate, though the Will might be unnatural and might cut off wholly or in part near relations.
36. It was held in Purnima Debi v. Khagendra Narayan : 3SCR195 that--. If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.
37. In Fulton v. Andrew (1875)7 H.L.448, it was held that
those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction.
There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out.
In the case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin (1838)2 Moo. P.C. 480. The two rules of law set out by Baron Parks are:
first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator'; 'the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
The statement of these two rules has now attained the status of a classic on the subject and it is cited by all text books on Wills.
38. In Vellaswamy Servai v. Sivaraman Servai , it was held by the Privy Council that where a will is propounded by the chief beneficiary under it, who has taken a leading part in giving instructions for its preparation and in procuring its execution, probate should not be granted unless the evidence removes suspicion and clearly proves that the testator approved the will In the instant case, the will had been probated.
39. In Sarat Kumari Bibi v. Sakhi Chand (1929) 56 Ind.App.62 : (1929) 56 M.L.J. 130 : 29 L.W.370 : A.I.R.1929 P.C.45, the Privy Council made it clear that 'the principle which requires the propounder to remove suspicions from the mind of the court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounder is the last will of the testator.' This view is supported by the observations made by Lindley and Davey L. JJ. in Tyreell v. Painton (1894) P.151 at pagas 157, 159. 'The rule in Barry's case (1332)2 Moo.P.C.480;Fulton's case (1375)7 H.L.448 and Brown v. Fisher (1890) 63 L.T. 465,' said Lindley, L.J. 'is not confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the Court,'
40. in Rash Mohini Dasi v, Umesh Chunder Biswas, (1914) 25 Ind. App.109 (P.C.)* (J914) M.W.N.728 it appeared that though the will was fairly simple and not very Jong the making of It was from first to last the doing of Khetter, the manager and trusted adviser of the alleged testator. No previous or independent intention of making a will was shown and the evidence that the testator understood the business in which his adviser engaged him was not sufficient to justify the grant of probate. In this case the application for probate made by the widow of Mohini Chunder Biswas opposed on the ground that the testator was not in a sound and disposing state of mind ac the material time and he could not have understood the nature and effect of its contents. The will had been admitted to the probate by the District judge but the High Court had reversed the said order. In confirming the view of the High Court the Privy Council made the observations to which we have just referred.
41. In Shama Cham Kundu v. Khettromoni Dasti I.L.R. (1900) Cal.521 : 27 I.A.10 : (1900) 2 Bom. L.R.568 it was held that the execution of the will therein was not surrounded by any suspicious circumstances. Shama Charn, the propounder of the will, claimed to be the adopted son of the testator. He and three others were appointed executors of the will. The testator ieft no natural sons but two daughters and his widow. By his will the adopted son obtained substantial benefit. The probate of the will with the exception of the last paragraph was granted to Shama Charn by the trial judge; but, on appeal the application for probate was dismissed by the High Court on the ground that the suspicions attending on the execution of the will had not been satisfactorily removed by Shama Charn. The matter was then taken before the Privy Council; and their Lordships held that, since the adoption of Shama Charn was proved, the fact that he took part in the execution of the will and obtained benefit under it cannot be regarded as a suspicious circumstances so as to attract the rule laid down by Lindley, L.J. in Tyrell's case (1894) P.151.
42. In Bai Gangabai v, Bhagwandas Valji I.L.R. (1905) 29 Bom.530 : (1905) 55 M.L.J. 27 : 32 I.A.142 the Privy Council had to deal with a will which was admitted to probate by the first Court, but on appeal the order was varied by excluding therefrom certain passages which referred to the deed-poll executed on the same day by the testator and to the remuneration of the solicitor who prepared the will and was appointed an executor and trustee thereof. The Privy Council held that
the onus was on the solicitor to satisfy the court that the passages omitted expressed the true will of the deceased and that the Court should be diligent and zealous in examining the evidence in its support, but that on a consideration of the whole of the evidence (as to which no rule of law prescribed the particular kind required) and of the circumstances of the case the onus was discharged.
In dealing with the question as to whether the testator was aware that the passages excluded by the appeal court from the probate formed part of the instrument, the Privy Council examined the evidence bearing on the point and the probabilities. In conclusion their Lordships differed from the view of the appeal court that there had been a complete failure of the proof that the deed-poll correctly represented the intentions of the testator or that he understood or approved of its contents and so they thought that there were no grounds for excluding from the probate the passages in the will which referred to that deed. They, however, observed that it would no doubt have been more prudent and businesslike to have obtained the services of some independent witnesses who might have been trusted to see that the testator fully understood what he was doing and to have secured independent evidence that Clause 26 in particular was called to the testator's attention. Even so, their Lordships expressly added that in coming to the conclusion which they had done they must not be understood as throwing the slightest doubt on the principles laid down in Fulton's case (1875)7 H.L.448 and other similar cases.
43. In Perera v. Perera (1901) A.C.354, it was held that when the testator is of sound mind when he gives instructions for a will but at the time of signature accepts the instrument drawn in pursuance thereof without being able to follow its provisions, he must be deemed to be of sound mind when it is executed. The will of Perera with which the court was concerned in this case was signed with a cross by the testator in the presence of five witnesses present at the same time who duly subscribed the will in the presence of the testator. The Notary Public was also among the persons present but he did not attest the will. No objection was taken in the court of first instance on the ground, but, in the court of appeal, the said objection was raised and it was held that the will was invalid on the ground that though the Notary Public was present he had not attested the instrument. The case was then taken to the Supreme Court in its collective capacity on review preparatory to an appeal to Her Majesty. The Supreme Court reversed the judgment under appeal and then proceeded to determine the case on the merits. The court held by a majority decision that the testator was of sound and disposing state of mind and restored the order of the primary judge. Against this decision there was an appeal. In this case the evidence about the instructions given by the testator was very clear; and there was not the slightest reason for disbelieving the statement of Generate that he had drawn the will faithfully in accordance with the details of instructions given to him. The will prepared from the said instructions seemed to be fair and just disposition of the testator's property. There was no concealment about the preparation of the will. The instructions were given on June 1 and it was in the evening of June 4 that the will was brought to the testator for execution. It is on these facts that it was held, following the observations of Sir James Hannen in Parker v. Felgate (1883) 8 P.D.171, that if a person has given instructions to a solicitor to make a will and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will if executed by the testator is that he should be able to think thus far: 'If I gave my solicitor instructions to prepare a will making certain dispositions about my property I have no doubt that he has given effect to my intention and I accept the document which is put before me a carrying it out.'
44. In Harmes v. Hinkson (1946) 2 M.L.J. 156 : 59 L.W.489 : A.I.R.1946 P.C.156, the testator George Harmes died in the city of Regina on April 4, 1941. Two days later Mr. Hinkson brought to the manager of the Canada Permanent Trust Company at its office in Regina a document which purported to be the will of the said Harmes. It was dated April 3, 1941, and named the Trust Company as executor. Under the will Mr. Hinkson by a devise and bequest of the residue was to benefit to a sum of more than 50,000. Mr. Hinkson was by profession a barrister and solicitor and had drawn the will with no witness present until after the body of the document was complete. Then two nurses were called in to witness its due execution. The learned Judge of the Surrogate Court, after a lengthy trial affirmed the will and decreed probate in solemn form. On appeal, by a majority decision the order of the trial court was reversed. Then there was a further appeal to the Supreme Court of Canada. It was heard by five learned judges. By a majority (Hudson, J, alone dissenting) the appeal was allowed and the decree of the Surrogate Court was restored. Against this decision the appellant obtained special leave to appeal to His Majesty-in-Council and it was urged on his behalf that, since the document was charged with suspicion from the outset, probate should not have been granted to the respondent Hinkson. The Privy Council did not accept this contention and dismissed the appeal. Prima facie the facts on which the appellant relied were strong enough; but the question which according to their Lordships fell to be decided in the appeal was whether the learned trial judge's decision on the facts was erroneous and so manifestly erroneous that an appellate court ought to set it aside. Their Lordships then referred with approval to the principles which had been frequently enunciated as to the respect which the appellate court ought to pay to the opinion which a Judge who has watched and listened to the witness has formed as to their credibility. (Powell v. Streatham Manor Nursing Home (1985) A.C. 243. Their Lordships then briefly referred to the evidence led in the case and observed that it was impossible for them judging only from the printed page to decide between the various opinions of Mr. Hinkson's character which its perusal may leave open for acceptance by different minds. In the result they came to the conclusion in agreement with the Supreme Court that the trial court's decision on the facts must stand. It would thus be noticed that the decision of the Privy Council proceeded more on the basis that there was no justification for interfering with a finding of fact recorded by the trial judge particularly when the said finding rested on his appreciation of the evidence given by several witnesses before him. In this connection it is significant to note that the allegation of the appellant that Mr. Hinkson had exercised undue influence on the testator was repelled by the Privy Council with the observation that their acceptance of the judge's findings of fact leaves them no alternative but to reject it. Thus this decision merely serves to illustrate the importance which the Privy Council attached to the finding of fact recorded by the trial Court in this case.
45. In Surendra Nath v. Jahnavi Charan I.L.R. (1929) Cal.390 : A.I.R.1929 Cal.184 it was held by the Calcutta High Court that on the proof of the signature of the deceased or his acknowledgment that he has signed the Will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B.B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.
46. Ex.A-1 is the photostat copy of the probated Will executed by late Viswanathaiah in favour of his wife Bangaramma. The Will is dated 20.2.1940. The defendant Kamakshi Ammal (appellant herein), as already mentioned, contended that it must have been a fabricated document and that Venkatesan - the plaintiff (respondent herein) is put to strict proof that the said will is a genuine document, and that late Viswanathaiah executed a Will with conscious state of mind. First of all, it has to be stated that the Will executed by Viswanathaiah has been probated in this Court. It is the evidence of D.W.I Kamakshi Ammal that her father lost his memory only one week prior to his death. It is also admitted by D.W.1 that she came to Madras during the month of March 1940, and that her father could identify her and understood her at the relevant time. Viswanathaiah died on 4.4.1940. The Will is dated 20.2.1940. The evidence of D.W.I Kamakshi Ammal itself would reveal that late Viswanathaiah was conscious during the month of March 1940. It is also contended on behalf of the appellant herein that all the heirs had not been impleaded as parties to the application for grant of letters of administration. The omission to state some members of the family of the testator is not a defective one. The presumption under Section 90 is due execution and attestation. This involves the idea that the document was executed duly and attested duly; in other words, that the document was validly executed. This involves a further conception that the testator has testamentary capacity to execute the Will. It is the evidence of D.W.1 Kamakshi Ammal that she did not know as to whether Viswanathaiah executed the Will in disposing state of mind or not'. In such circumstances, the contention of Kamakshi Ammal - the appellant herein that Ex.A-1 Will must have been fabricated by Venkatesan the respondent herein, and that it is not a genuine document cannot be upheld. As already mentioned, the Will executed by late Viswanathaiah had been duly probated, and the same cannot be said to be a fabricated document.
47. It is relevant to note that Exs.A-19 and A-20 are documents viz., mortgage deeds executed by Bangaramma. Banga-ramma has stated in the said documents that Viswanathaiah died on 4.4.1940 leaving a Will on 20.2.1940 bequeathing the suit property to her with absolute right and the High Court of Madras in O.P.No. 323 of 1946 granted to her Letters of Administration with the Will annexed in respect of the properties of Viswanathaiah. Kamakshi Animal - the appellant herein is an identifying witness in these documents. The contention of Kamakshi Ammal is that she did not know anything about the execution of the Will executed by late Viswanathaiah. She has also contended that the Will said to have been executed by late Viswanathaiah is a fabricated document. We have already dealt with the evidence available on record so far as the contention raised on behalf of Kamakshi Ammal - the appellant herein that Ex.A-1 the will executed by late Viswanathaiah was a fabricated document.
48. Bangaramma died on 15.9.1968. It is the contention of Kamakshi Ammal - the appellant herein that on the death of Bangaramma, the appellant herein became entitled to a moiety and the other half falling to the share of Venkatesan (respondent herein) and his brother Gopal being the sons of the predeceased daughter. The said contention would be true if Bangaramma died intestate. Bangaramma executed a registered Will in favour of Venkatesan on 9.9.1955 under which she bequeathed the suit property in his favour. Ex.B-1 is the registration copy of the said Will. Bangaramma executed a settlement deed in favour of Venkatesan (respondent herein) on 30.5.1956 to make a final settlement in respect of the suit property and thereby revoked her previous Will dated 9.9.1955. Ex.A-2 is the photostat copy of the said settlement, which was marked before the lower court. Now, in this Court, as already stated, the original of Ex.A-2 was produced and the same was marked as Ex.A-22 and it was with respect to this document (Ex.A-22), a finding was called for from the lower court, and accordingly the lower court after examining P.W.2 Saroja Bagavath and P.W.3 Rajendra Bagavath - the attestors to Ex.A-22 submitted a finding to this Court. Objection was raised by Mr. R.S. Venkatachari, the learned Counsel for the appellant herein that the lower court had not properly appreciated the evidence available on record, and the finding given by the lower court with regard to Ex.A-22 is not in accordance with law. Let us consider the evidence adduced before the lower court through P.W.2 Saroja Bahath and P.W.3 Rajendra Bahath with regard to Ex.A-22 the settlement deed. The contention of the plaintiff - Venkatesan is that he became entitled to the suit property absolutely immediately after the death of Bangaramma in pursuance of the document Ex.A-22. It is the contention of Kamakshi Ammal - the appellant herein that the Will said to have been executed by Bangaramma in favour of Venkatesan the respondent herein is neither true nor genuine and would not confer any title to Venkatesan - the respondent herein. It is also the contention of the appellant herein that' as Bangaramma was ill, Venkatesan had obtained the documents, under undue influence. It is also the contention of the appellant herein that Venkatesan - the respondent herein has played fraud upon late Bangaramma and must have obtained her signature to the deed of settlement as well as to the Will by obtaining the signature of Bangaramma in a secret manner only with a view to enrich himself at the expense of close relatives and by taking undue advantage of his relationship with late Bangaramma. It is also suggested to P.W. 1 that Bangaramma did not know English except to put her signature in the said language, and that her signature was obtained in the settlement deed as well as in the Will without the contents being read over to her. P.W. 1 denied the said suggestion. It is the evidence of D.W.1 that she came to know about the existence of the Will executed by Bangaramma in favour of Venkatesan only during the year 1968. If Venkatesan proves the execution of the settlement deed by Bangaramma in his favour, then the truth or otherwise of the document Ex.B-1 would not assume much importance as the settlement deed Ex.A-22 came into existence later in point of time. The main question that has to be decided in the present case is as to whether the Will and the settlement deed were executed by Bangaramma in the manner as contended by Kamakshi Ammal the appellant herein. It is the evidence of D.W. 1 that she did not know about the execution of the Will by Bangaramma in favour of Venkatesan during the year 1955. it is also her evidence that she did not know under what circumstances the settlement deed was executed in favour of Venkatesan and when it was executed. The evidence of D.W. 1 itself would reveal that without knowing the fact as to whether Bangaramma has executed the Will and Settlement Deed in favour of Venkatesan or not, she has come forward with the aforesaid pleas in the plaint. The will Ex.B-1 is a registered document. Further the settlor under Ex.A-22 herself has stated that with a view to make a final settlement in respect of the suit property, she has executed the said settlement deed after revoking her previous Will dated 9.9.1955. The execution of the Will by Bangaramma on 9.9.1955 is admitted by Bangaramma herself under the document Ex.A-22. The relevant passage in Ex.A-22 settlement deed reads as follows:
This deed of settlement executed this 30th day of May 1956 by Devalta Bangaramma alias Bangaru wife of late Devalla Viswanathaiah, Hindu, Brahmin, aged 63, residing at No. 25, Ramanujam Street, Thyagaraya Nagar, Madras-17, hereinafter called the Settlor which term shall mean and include her heirs legal representatives and assigns in favour of P.Venkatesan, alias P.Venka-tesh eldest son of P. Subbarayulu, also residing at No. 25, Ramanujam Street, Thyagarayanagar, Madras-17, hereinafter called the Settlee which term shall mean and include his heirs, legal representatives and assigns.
WHEREAS the schedule mentioned property was the absolute self-acquired property of the deceased Devella Viswanathaiah, the husband of the settlor.
AND WHEREAS the said Devella Viswanathaiah devised the said property absolutely to his wife the Settlor herein by his Will dated 20.2.1940 for which letters of Administration with the Will annexed were obtained by the Settlor in O.P.No. 323 of 1946 on the file of the High Court of Judicature, Madras.
AND WHEREAS the settlee is the settlor's deceased daughter's eldest son brought up by the settlor and her husband as their foster son and abhimanaputra
AND WHEREAS the settlor out of natural love and affection in anxious to make a final settlement of the schedule mentioned property revoking her previous Will dated 9.9.1955, registered as No. 16 of 1955 of Book 3, Volume 5, pages 5 to 7 of S.R.O.T. Nagar.
NOW THIS DEED WITNESSETH.
That in consideration of natural love and affection the settlor hereby grants, transfers and assigns to the settlee the schedule mentioned property absolutely with full powers of alienation subject to the settlor enjoying the property for her lifetime without any further power of alienation and subject to the liability of the settlee to discharge the mortgage already created on the property by the settlor in favour of Mr. M.Ramachandran, son of N.Maha-linga Aiyar, Officer of the Punjab National Bank Ltd., Madras, under the mortgage deed dated 21.6.53 for Rs. 11,000.
The property hereby transferred to the settlee is worth Rs. 15,000.
It is contended on behalf of Kamakshi Ammal (appellant herein) that there was no necessity on the part of Bangaramma to execute the settlement deed as she has already executed a Will in favour of Venkatesan in respect of the suit property. The intention of the settlor has been clearly stated in Ex.A-22 the settlement deed. It is stated by the settlor Bangaramma in Ex.A-22 the settlement deed that only with a view to make a final settlement she executed the settlement deed. She had also stated that she revoked her previous will dated 9.9.1955 registered at T. Nagar. In such circumstances, the contention of the appellant herein would not assume much importance. Bangaramma herself has confirmed the execution of the settlement deed by her subsequent conduct in various proceedings. Bangaramma has stated under Ex.A-22 the settlement deed that she is entitled to enjoy the said property till her lifetime without power of alienation.
49. P.W.2, T. Saroja Bhagavath has stated in her evidence that she is acquainted with the plaintiff Venkatesan, that Venka-tesan was brought up by his grand-mother Bangaramma, that she is acquainted with Bangaramma for a very long time, that about fifteen or sixteen years ago Bangaramma died, that Bangaramma executed a settlement deed in favour of Venkatesan, and that P.W.2 had attested the said settlement deed (Ex.A-22) in Telugu. P.W.2 has further stated in her evidence that her son also put his signature as attesting witness in the said settlement (Ex.A-22) along with her. P.W.2 has further stated that in Ex.A-22 settlement deed Bangaramma put her signature. When Bangaramma signed in Ex.A-22, both P.W.2 and her son saw the said Bangararnma signing Ex.A-22. Similarly, according to P.W.2, Bangaramma saw both P.W.2 and her son signing Ex.A-22 settlement deed as attesting witnesses. P.W.2 has also stated in her evidence that Ex.A-22 was registered in the office of the Sub-Registrar at 12 noon. She has also stated in her evidence that at the time of registration also, both herself and her son attested Ex.A-22 as identifying witnesses. P.W.2 has also stated that Bangaramma had put her signature in Ex.A-22, at the time of registration, as the person who executed the said settlement deed. T. Rajendra Bhagavath had read out the contents of the settlement at that time. Bangaramma signed Ex.A-22 in the presence of the Sub-Registrar. P.W.2 had been cross-examined at length; but nothing material has been elicited so as to discredit her evidence, as spoken to by her in her chief-examination.
50. P.W.3 T. Rajendra Bhagavath has also stated in his evidence that himself and his mother had attested the settlement deed Ex.A-22. He has also stated that he had gone to the Sub-Registrar's office during the time of registration of Ex. A-22 and also attested Ex.A-22 along with his mother as identifying witnesses. In fact, P.W.3 corroborates the evidence of his mother (P.W.2) in all material particulars. Nothing material has been elicited in the cross-examination of P.W.3 so as to discredit his evidence in the chief-examination. P.W.3 has stated in his cross-examination that he is a B.Sc., B.L., and he has specifically denied the suggestion that Ex.A-22 settlement deed is a fabricated document.
51. Thus, in the instant case before us, on behalf of the plaintiff Venkatesan, both the attesting witnesses to the settlement deed (Ex.A-22) have been examined so as to prove due execution of the said document. Ex.A-22 is also a duly registered document. The learned XII Assistant judge, City Civil Court, Madras, has discussed the evidence and has given a definite' finding that Ex.A-22 is a genuine document, and that it was duly executed by Bangaramma, and it is a valid document. The evidence on record clearly shows that Ex,A-22 had not been obtained by the plaintiff Venkatesan by exercising fraud and undue influence on Bangaramma.
52, Bangararnma and Venkatesan have issued a notice, the office copy of which is Ex.A-3, to the defendant Kamakshi Ammal (appellant herein) on 23.9.1963 wherein they have stated as follows:
You are fully aware that for discharge of pressing debts myself and my settlee P. Venkatesan have sold a portion of the ground and building to P.S. Venkatesasubban of Saidapet and the document has been duly registered to your knowledge.
Ex.A-4 is the acknowledgement of the said notice by the appellant herein. Kamakshi Ammal - the appellant herein has stated in her evidence that she did not give any reply to the original of Ex.A-3. It is specifically stated by Bangaramma in Ex.A-3 that Venkatesan is the settlee. Further they have also stated that they have sold a portion of the ground and building to Venkatesasubban and that the document has been duly registered to the knowledge of Kamakshi Ammal - the appellant herein. If really, the appellant had no knowledge about the settlement deed executed by Bangararnma in favour of Venkatesan, the appellant-Kamakshi Ammal would have issued a reply notice setting forth the real contention. It is also admitted by D.W.1 that she did not question her mother Bangaramma regarding the execution of the sale deed in respect of a portion of the property in favour of Venkatesasubban. If really, the contention of the appellant herein is true, definitely she would have questioned the act of Bangaramma at the relevant time.
53. Bangaramma filed an eviction petition in H.R.C.No. 3643 of 1964 against Kamakshi Ammal (appellant herein) for her eviction. Kamakshi Ammal was inducted into possession of the property as a tenant under Bangaramma agreeing to pay a monthly rent of Rs. 70. Ex.A-17 is the certified copy of the petition filed by Bangaramma in H.R.C.No. 3643 of 1964. In Ex.A-17, Bangaramma has stated in paragraph 2 as follows:
2. The premises No. 25, Ramanujam Street, Thyagarayanagar, Madras-17, was the absolute, self-acquired property of deceased D. Viswanathaiah husband of the petitioner. He died leaving a Will dated 20.2.1940, bequeathing the said property absolutely in favour of his wife, the petitioner herein. The Will was duly probated in O.P.No. 323 of 1945 on the file of the High Court of Judicature, Madras, and the petitioner has been in undisturbed possession and enjoyment of the same. She was living with her grandson, P. Venkatesan, by her predeceased daughter, who was being brought up by her. She got him married in 1955 and after the marriage the petitioner, her grandson and his wife were living together as members of one family in the said premises occupying the Central downstairs portion, now in the occupation of the respondent and letting out other portions. The petitioner out of natural love and affection executed a settlement in favour of her grandson, reserving a life interest for herself and giving her grandson a vested remainder absolutely in the said property.
Ex.A-7 is the counter statement filed by Kamakshi Ammal (appellant herein) in H.R.C.No. 3643 of 1964. It is contended by Kamakshi Ammal in the said counter statement that the settlement deed executed by Bangaramma in favour of Venkatesan is invalid and not binding on her.
54. In the instant case before us since we felt that Ex.A-22 settlement deed has to be proved by examining the attestors viz., P.Ws.2 and 3 to the said document, we directed the learned XII Assistant Judge, City Civil Court, Madras, to give his finding, after giving a reasonable opportunity to both sides to adduce evidence. An attestation to a document is an important aspect which has to be given due. importance in cases where such an attested document, though it is a registered one, is attacked on the basis that the same had been obtained out of fraud and undue influence.
55. Proper attestation is requisite for the validity of some transfers. In English law an attesting witness is one who has witnessed, that is, actually seen the execution, of the document. In India Section 50 of the Indian Succession Act, 1865, recognised the validity of an attestation on admission or acknowledgment of execution though the witness had not actually seen execution. In this regard Section 63 of the Indian Succession Act, 1925, may also be usefully referred to.
56. ft was held by the Allahabad High Court in Ganga Dei v. Shiam Sunder, L.L.R. (1909) All. 69 and Bombay High Court in Ramji v. Bed Parvati I.L.R. (1903) 27 Bom.91, that even as to transfer governed by the Transfer of Property Act, attestation on admission of execution was sufficient. Madras High Court in Shamu Patter v. Abdur Kadir : (1908)18MLJ219 and the Calcutta High Court in Girindra Nath v. Bijoy Gopal I.L.R. (1899) Cal. 246, took a contrary view and required that an attestor should have actually witnessed, execution. The Privy Council held in Shamu Patter v. Abdul Kadir I.L.R. (1912) Mad.607 : 39 LA. 218 : (1912) 23 M.L.J.321 that 'attested' means that a person signed the document by way of testimony to the fact that he actually saw it executed. This decision overruled the view of the Allahabad and Bombay High Courts. The Transfer of Property (Validating) Act, XXVI of 1317 was passed to validate instruments attested by witnesses on receiving an admission of execution from the executant in reliance on the correctness of the Allahabad and Bombay decisions.
56. The Transfer of Property Amending Act (XXVII of 1926) added a definition of 'attested' in Section 3 of the Transfer of Property Act in terms of the definition of the Indian Succession Act, thus sanctioning attestation on acknowledgment of execution. There was a conflict of opinion as to whether the definition thus introduced had retrospective operation. So Act X of 1927 amended the definition by adding to the words 'attestation means' the words 'and shall be deemed always to have meant'. This amendment makes it clear that the definition of 'attestation' has retrospective operation. Vide Veerappa v. Subramania I.L.R. (1929) Mad. 123 : (1929) 55 M.L.J. 794 : 28 L.W.955 : A.I.R. 1929 Mad. 1. The amended definition runs thus:
'Attested' in relation to an instrument means, and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one such witness shall have been present at the same time and no particular form of attestation shall be necessary.
This definition makes a two-fold departure from the English law according to which both witnesses should be present at the same time and actually see the execution of the instrument.
57. An acknowledgment of signature may be inferred from gestures and need not be verbal (vide Amir Husain v. Abdul Samad. I.L.R. (1937) All. 723 : A.I.R. 1937 A11.646.
58. An attesting witness should be suijuris. He may be an illiterate marksman in which case he may attest by his mark. Vide Hiralal v. Gokul : AIR1944All61 ; M.R.M. Firm v. Ma ye Ngo A.I.R. 1937 Rang. 293; Nagamma v. Venkataramayya : AIR1935Mad178 ; Ammayee v. Yalumalai I.L.R. (1892) Mad.261. See the following decisions for another opinion Fernandez v. Alves I.L.R. (1878) 3 Bom. 382; Nitya Gopal Sircar v. Nagendra I.L.R. (1885) Cal. 429; and Mahendranath v. Netai Charan : AIR1944Cal241 . A scribe may also be an attesting witness, vide Alagappa Chettiar v. Kokala Pai A.I.R. 1940 Rang.l34 : (1940) Rang.L.R. 199; Abinash Chandra v. Dasaratn Malo : AIR1929Cal123 ; and Paramasdva Udayan v. Krishna Padayachit I.L.R. (1918) Mad.535 : A.I.R. 1918 Mad.491 : 7 L.W.241 provided the document is not executed by the scribe himself on behalf of the executant. Vide Sristidhar Chose v. Rakshakali Dasi I.L.R. (1922) Cal. 438; Upendra Chandra v. Hukum Chand I.L.R. (1919) Cal.522. A party to the document cannot attest (Vide Sarur Jigar Begum v. Barada Kanta Hitter I.L.R. (1910) Cal.526.
59. There is a conflict of decisions on the question whether a registering officer may be an attesting witness. Madras High Court in Dhanapala v. Goverchand : AIR1938Mad958 ; Veerappa v. Subra mania I.L.R. (1929) Mad. 123 : (1929) 55 M.L.J.794 : 28 L.W. 955 : A.I.R.1929 Mad.l; and Nagpur High Court in Kanchedilal v. Zabarshah A.I.R 1936 Nag. 171 : 166 I.C.686 held that the registering officer may be an attestor. The Allahabad, Bombay and Rangoon High Courts have taken a contrary view vide Amir Husain v. Abdul Samad : AIR1937All646 ; Lachmam Singh v. Surendra Bahadur : AIR1932All527 ; Harkisandas v. Dwarkadas : AIR1936Bom94 ; Ma Thein Shin v. Ma Nagwe Nu A.I.R.1939 Rang. 211 : 182 I.C.924; and Sundrabai v. Ramabai : AIR1947Bom396 . This was noticed by the Privy Council in Surendra Bahadur v. Behari Singh , but it was not found necessary to decide the question and resolve the conflict. The Privy Council observed thus:
Assuming that it would be legitimate to look at the proceedings relating to the registration of a mortgage deed for the purpose of proving the due execution and attestation thereof, it is necessary in order to comply with the provisions of the T.P. Act, 1882, to prove that the Registrar and the identifying witnesses had signed the endorsement in the presence of the executant and that the admission of execution was made in the presence of the witnesses.
60. Requisities of valid attestation:- (1) An attesting witness should sign his name in the presence of the executant vide Ramanathan Chetti v. Delhi Batcha Tevar : (1931)60MLJ302 ; Zamindar of Polavaram v. Maharaph of Pittapuram I.L.R. (1931) Mad,I63 : A.I.R.1931 Mad.l40 : (1931) 60 M.L.J.56 and Surendra Bahadur v. Behari Singh. A.l.R. 1939 P.C.I 17 : (2939) 2 M.L.J. 782. In Kundan Lal v. Mushar Rafi Begum I.L.R. (1936) Luck.346 : (1936) 63 I.A.326' (1936) 71 M.L.J.151 : A.l.R. 1936 P.C.207 : 44 L.W. 373 the executant was a pardanashln lady and was sitting behind a thin curtain when the attestors signed. The Privy Council held that the attestation was valid as the executant, if so minded, could have seen the witnesses, even if she did not actually see them, through the curtain.
(2) The attestor must have actually witnessed execution or received from the executant an acknowledgment of execution. In Rao Ganga Prashad Singh v. Isturi Per-shad Singh (1918) 34 M.L.J. 545 : 45 I.A.94 : 8 L.W.176 : A.I.R. 1918 P.C. 3 a deed of mortgage was signed behind the purdah and was brought to the witness bearing a signature which the son of the iady said was her signature. The Privy Council held that there was no valid attestation as the above conditions were not satisfied. In Padarath Halwai v. Ram Nain Vpadhia I.L.R. (1915) AI1.474 42 I.A.163 : (1915) 29 M.L.J.159 : A.I.R.1915 P.C.21 the hand of the executant who was behind the purdah was seen and her voice was heard and recognised by the witness. It was held that the attestation was valid.
61. A presumption of due execution and attestation may be drawn in the case of documents over 30 years old and, coming from proper custody. In the case of attestation, the presumption when applied results in a finding that the attesting witness signed in the presence of the executant as required under Section 3 of the Transfer of Property Act. (Vide Rajeshwar Misser v. Sukhdeo A.l.R. 1947 Pat.449.
62. In Abdul Jabhar v. Venkata Sastri : 3SCR513 it was held that--. The essential conditions of a valid attestation under Section 3 of the Transfer of Property Act are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature;
(2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
63. Thus, we see that it is a well established principle of law that in every case where the genuineness of a document is disputed, the Court must be satisfied that the names of the attestors of the said disputed document were written animo attestandi. Evidence is admissible to show whether the witness had the intention to attest. The attesting witnesses must subscribe with the intention that subscription made should be complete attestation of the document, and evidence is admissible to show whether such was the intention or not. In the instant case before us, as already seen both the attestors to the settlement deed Ex.A-22 viz., P.W.2 Saroja Bhagavath and P.W.3 Rajendra Bhagavath have specifically stated in their evidence that their intention was to attest the settlement deed, and as such they put their signatures as attestors to Ex.A-22, and that they also saw Bangaramma executing (A-22) settlement deed by putting her signature in Ex.A-22, and in turn Bangaramma also saw both P.W.2 and P.W.3 attesting Ex.A-22 the settlement deed, and that one and the same time the execution as well as the attestation of the settlement deed Ex.A-22 had taken place in the instant case before us. As already mentioned in the instant case before us, both the attestors to Ex.A-22, namely, P.W.2 and P.W.3 have been examined on behalf of the plaintiff Venkatesan and their evidence, in our view, comprehensively proves the genuineness of the settlement deed (Ex.A-22) executed by Bangaramma.
64. Ex.A-18 is the certified copy of order dated 4.1.1965 passed in H.R.C.No. 3643 of 1964 on the file of the Court of the Rent Controller, Madras. Eviction was ordered on the petition filed by Bangaramma, Kamakshi Ammal - the appellant herein filed an appeal in H.R.A.No. 565 of 1971 and in that appeal filed by the appellant herein the eviction order passed in H.R.C.No. 3643 of 1964 was set aside. Ex.B-6 is the certified copy of the order passed in H.R.A.No. 565 of 1971. The appeal was allowed on the ground that the title has to be decided only in a regular suit. Ex.A-21 is the certified copy of the deposition of Bangaramma. Ex.A-8 is also the same. Bangaramma stated before the Rent Controller that she and Venkatesan sold, as she has executed a settlement deed in his favour. She has also stated before the Rent Controller that there is misunderstanding as a result of the settlement. In her deposition (Ex.A-8), Bangaramma has stated as follows:.I am petitioner. Respondent became tenant in 1959. At that time, my grandson Venkatesan and his wife were living with me. We were then occupying the ground floor. I retained one room and let the remaining portion to respondent. A little before he came, with the 3 months advance, I put up a hut on the open terrace in addition to one room which was already. I and my grandson were living in the ground floor and first floor room and kottai. Respondent is my first daughter, and she is living with her son and daughter. I sold the back portion to one Venkatesubban. Ex.P-1 is the sanctioned plan for the portion sold. The portion sold included a bath room let. to respondent, and instead I gave a larger bath room to respondent. I and Venkatesan (the son of my second daughter) sold as I have executed a settlement deed in his favour. There is misunderstandings as a result of the settlement.
65. In view of the averments found in the petition filed by Bangaramma in H.R.C.No. 3643 of 1964 and in view of her evidence before the Rent Controller, it is futile on the part of Kamakshi Ammal (appellant herein) to contend that she had no knowledge about the execution of the settlement deed (Ex.A-22) by Bangarammiu. Further Bangaramma herself has confirmed the execution of the settlement deed (Ex.A-22) in respect of the suit property in favour of Venkatesan in her own affidavit filed in support of H.R.C.No. 3643 of 1964 and her evidence deposed before the Rent Controller. In such circumstances, the contention of Kamakshi Ammal - the appellant herein that Ex.A-22 the settlement deed was obtained by Venkatesan by exercising fraud and undue influence and that Bangaramma's signature was obtained in Ex.A-22 without the contents being read over to her, cannot be accepted as sound. As already seen, in this court Ex.A-22 settlement deed has been produced by Venkatesan (respondent herein), and with respect to the same, P.W.2 and P.W.3 were also examined on behalf of Venkatesan. As Ex.A-22 the settlement deed came into force, Bangaramma executed a sale deed in respect of a portion of the property acquired by her from her husband in favour of Venkatasubban along with Venkatesan. If really Ex.A-22 settlement deed was not acted upon, there was no necessity at all to execute the sale deed along with Venkatesan. Further she has also stated in her evidence before the Rent Controller that as she executed the settlement deed (Ex.A-22) in favour of Venkatesan, she executed the sale deed in favour of Venkatasubban along with Venkatesan. The contents of all these documents would prove that Bangaramma has executed Ex.A-22 the settlement deed in respect of the suit property in favour of Venkatesan in a disposing state of mind and at her own volition, and that the same has come into force.
66. Ex.B-5 is the notice issued by Kamakshi Animal (appellant herein) through her advocate to the advocate of Venkatesan. It is stated by the appellant herein in the said Ex.B-5 notice that she was a tenant under Bangaramma and that the sum of Rs. 70 per month was not paid by her as a tenant under Bangaramma in respect of the rent, but only towards maintenance. The contention of the appellant herein - Kamakshi Ammal that she was paying a sum of Rs. 70 only towards maintenance of Bangaramma and not as a rent cannot be said to be correct in view of the H.R.C. proceedings. Kamakshi Ammal - the appellant herein herself has stated in Ex.A-7 the counter statement filed by her in H.R.C.No. 3643 of 1964 that she became a tenant of the portion in the petition house paying an advance of Rs. 140. Further Kamakshi Ammal has admitted in her notice (Ex.A-5) dated 31.10.1963 that she became a tenant under Bangaramma on a monthly rent of Rs. 70 and paid an advance of Rs. 140 to Bangaramma. The relevant portion of Ex.A-5 reply notice dated 31.10.1963 issued by (Kamakshiammal's) appellant's counsel to Mrs. D. Bangaramma reads as follows:. My client states that she became a tenant under you of the portion in premises No. 25, Ramanujam Street, T. Nagar, Madras, on a monthly rent of Rs. 70 and has paid an advance of Rs. 140 to you. My client further states that she has been regularly paying the rents and electricity charges to you but you were never giving any receipts to my client for the same. My client further states that she paid the rent and electricity charges for the month of July, 63 in August, 1963 and she paid the rent and electric charges for the month of August, 63 in September, 1963. The rent and electricity charges for September, 1963 has been sent by Money Order on 12.10.63 and the same has been received by you. So my client states that she has paid the rents and electricity charges to you upto date and there is nothing due to you from her. My client states that she is not due to pay you the rent and electricity charges for August and September, 1963.
In view of the admission made by Kamakshi Ammal - the appellant herein, her contention that she was paying a sum of Rs. 70 towards the maintenance of Bangaramma, cannot be said to be true. In Ex.A-5 notice issued by Kamakshi Ammal to Bangaramma, Kamakshi Ammal (appellant herein) has not stated anything about the settlement deed - Ex,A-22 executed by Bangaramma. Further, the appellant herein herself had sent rent by money order, and money order coupons have been marked as Ex.A-6 series. It is thus satisfactorily proved by the plaintiff Venkatesan that Kamakshi Ammal came into the suit property only as a tenant under Bangaramma on a monthly rent of Rs. 70.
67. Bangaramma died on 15.9.1968. Venkatesan issued a notice to Kamakshi Ammal - the appellant herein, the office copy of which is Ex.A-9, calling upon her to attorn the tenancy in his favour. Ex.A-10 is the postal acknowledgment of the said notice signed by Kamakshi Ammal. Kamakshi Ammal has issued Ex.A-11 reply notice stating that the settlement deed (Ex.A-22) dated 30.5.1956 is not a genuine document and that she was not liable to pay any amount to the plaintiff Venkatesan. The plaintiff Venkatesan has filed urban land tax receipt (Ex.A-13) to show the payment of tax to the Suit premises. Ex.A-14 is the intimation received from the Corporation of Madras intimating the change of house tax registry in the name of the plaintiff-Venkatesan. Exs.A-16, B-2, B-3 and B-4 are all notices exchanged between Kamakshi Ammal and Venkatesan. The contention of the appellant herein regarding the genuineness and validity of Ex.A-22 the settlement deed and the Will executed by Bangaramma cannot be upheld in the light of our discussions made above, If really Kamakshi Ammai had any grievance about the execution of Ex.A-22 settlement deed and the Will executed by Bangaramma, she would have filed a suit to set aside the said documents even during the lifetime of Bangaramma. It has been clearly proved by the plaintiff Venkatesan that Bangaramma acquired the suit property by virtue of the Will executed by late Viswanathaiah and that he became entitled to the suit property in pursuance of Ex.A-22 - settlement deed executed by Bangaramma.
68. Even after the finding of the learned XII Assistant Judge, City Civil Court, Madras, had been received by this Court to the effect that Ex.A-22 is a genuine document and that the same had been executed by Bangaramma out of her own volition, without any fraud or undue influ-ence, Mr.R.S.Venkatachari, learned Counsel for Kamakshi Ammal - the appellant herein, vehemently contends that Ex.A-22 the Deed of Settlement, on the face of it, is an unnatural document, and that the circumstances leading to the execution of the deed may be considered by this Court. We have gone through the evidence of P.W.2 and P.W.3 - the attestors to Ex.A-22 independently and considered the said evidence along with the evidence already on record, and are definitely of the opinion that Ex.A-22 is a genuine document. In the instant case before us it cannot be said that Ex.A-22 - settlement deed is an unnatural document as the settlor has confirmed the execution of the settlement deed in various proceedings by her independent act. In such circum-stances, we are unable to uphold the contention raised by Mr. R.S. Venkatachari, learned Counsel for Kamakshi Ammal -the appellant herein, in respect of the validity and genuineness of the settlement deed (Ex.A-22). Taking the entire evidence available on record, both oral and documentary, and the probabilities of the case, we hold that Ex.A-22 - settlement deed dated 30.5.1956 is true, valid and binding on Kamakshi Ammal - the appellant herein, and that the plaintiff Venkatesan became entitled to the suit property by virtue of Ex.A-22 - the settlement deed, and that the appellant herein was a tenant under Bangaramma in respect of the suit property. We further hold that Kamakshi Ammal - the appellant herein is not entitled to the moiety of the suit property as the legal heir to the estate of late Viswanathaiah on the death of Bangaramma. Bangaramma was in possession and enjoyment of the suit property at the time when the Hindu Succession Act came into force. Admittedly, Bangaramma died on 15.9.1968. Bangaramma became the absolute owner of the suit property under Hindu Succession Act, 1956.
69. The plaintiff (Venkatesan) in O.S. No. 9120 of 1974 has claimed damages for use and occupation at the rate of Rs. 150 per month for a period of three years. Kamakshi Ammal (appellant herein) had admitted that her portion would fetch an income of Rs. 200 per month. Further Venkatesan - the plaintiff has also filed Ex.A-15 rent receipt to show that he let out another portion for a sum of Rs. 200. in view of the admission made by the appellant herein, the plaintiff Venkatesan is entitled to collect the amount as damages for use and occupation at the rate of Rs. 150, for a period of three years and he is also entitled to collect the same, at the same rate in future till the recovery of possession. Therefore, the plaintiff Venkatesan is entitled to recover possession of the suit property, and he is entitled to a decree in O.S. No. 9120 of 1974, and as such, we confirm the judgment and decree of the lower court passed in O.S. No. 9120 of 1974. Kamakshi Ammal - the plaintiff in O.S. No. 3470 of 1976 (appellant herein) is not entitled to a decree, and in the result, we confirm the judgment and decree of the lower court passed in O.S. No. 3470 of 1976.
70. In the result, we dismiss both the appeals A.S. Nos. 710 and 770 of 1978, and confirm the judgments and decrees of the lower court in both the suits. Kamakshi Ammal - the plaintiff in O.S. No. 3470 of 1976 is directed to pay the court-fee due on the said plaint. Kamakshi Ammal -the appellant herein is directed to pay the court-fee due on these two appeals. So far as these two appeals are concerned, we are of the opinion that in the circumstances of the case and in view of the relationship between the parties, we direct the parties to bear their respective costs.