Skip to content


irudayammal and ors. Vs. Salayath Mary - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1972)2MLJ508
Appellantirudayammal and ors.;salayath Mary
RespondentSalayath Mary;irudayammal and ors.
Cases ReferredKashibai v. Vinayak
Excerpt:
- .....respect of the portion of the plaintiff's claim disallowed.2. the plaintiff is the daughter of one susai udayar; defendants 5 and 6 are the sisters of the plaintiff, being the other daughters of susai udayar aforesaid. the first defendant irudayammal is the widow of one arokia udayar, the son of susai udayar. defendants 2, 3 and 4 are the daughters of the first defendant and arokia udayar aforesaid. the parties belong to keeranur village in ramanathapuram district and the father, susai udayar, left for burma several decades ago and practically settled down there till the moment of his death in burma in 1941. his wife, the mother of the plaintiff, also died in 1942. during the time he settled down in burma, susai udayar acquired vast extent of paddy fields in thamin anauk kwin, dedaye.....
Judgment:

K.S. Ramamurti, J.

1. Defendants 1 to 3 have preferred this appeal against the judgment and decree, of the learned Subordinate Judge of Ramanathapuram decreeing, in favour of the plaintiff, partition and separate possession of one-fourth share in respect of certain items of properties set forth in schedule A appended to the plaint as well as the claim for mesne profits from 12th March, 1956. The plaintiff's suit in respect of other items in the A schedule and in respect of the entire B schedule properties as well as the plaintiff's claim for relief of accounting prior to 12th March, 1956, have been dismissed. There is no cross-appeal in respect of the portion of the plaintiff's claim disallowed.

2. The plaintiff is the daughter of one Susai Udayar; defendants 5 and 6 are the sisters of the plaintiff, being the other daughters of Susai Udayar aforesaid. The first defendant Irudayammal is the widow of one Arokia Udayar, the son of Susai Udayar. Defendants 2, 3 and 4 are the daughters of the first defendant and Arokia Udayar aforesaid. The parties belong to Keeranur village in Ramanathapuram district and the father, Susai Udayar, left for Burma several decades ago and practically settled down there till the moment of his death in Burma in 1941. His wife, the mother of the plaintiff, also died in 1942. During the time he settled down in Burma, Susai Udayar acquired vast extent of paddy fields in Thamin Anauk Kwin, Dedaye Township in Burma. Susai Udayar also acquired lands and houses in his native village.

It is not in dispute that Susai Udayar his wife and his three daughters settled down in Burma; Indeed the three daughters were born, bred up in Burma and they were also married in Burma. The husbands of the fifth and the sixth defendants (the other two daughters of Susai Udayar) were staying in Burma, looking after the lands acquired by Susai Udayar in Burma. Arokia Udayar, the son of Susai Udayar, permanently stayed in India, in the native village and used to visit Burma now and then. It was the husband of the fifth defendant (Irudayarr) who was in main charge of the management of the properties in Burma and was completely assisting Susai Udayar. During the period of the war and when the conditions in Burma were chaotic between 1941 to 1946, it was the husband of the fifth defendant who was staying in Burma and managing the properties after the death of Susai Udayar. In 1947-48, with considerable difficulty, the fifth defendant and her husband and the plaintiff returned back to India. After return from Burma, the plaintiff was staying with her brother's wife, the first defendant. As the plaintiff had no child she was deeply attached to the fourth defendant, Therasammal, treating her as her own daughter. Misunderstandings appear to have arisen between the plaintiff and the first defendant consequent upon certain marriage proposal of the third defendant, the other daughter of the first defendant. The plaintiff issued a notice, Exhibit A-18 dated 12th March, 1956, claiming a one-fourth share in the properties of Susai Udayar, in particular, the properties in India, to which the first defendant sent a reply, Exhibit A-20 dated 29th March, 1956, in which the first defendant claimed that Susai Udayar had left behind a registered Will under which Susai Udayar had given substantial landed properties in Burma to the three daughters, 60 nacres to the plaintiff, 60 acres to the sixth defendant and 35 acres to the fifth defendant and that the rest of the properties of Susai Udayar, i.e., the properties in Burma as well as those in India, were bequeathed to Susai Udayar's son, Arokiam and that after the death of Susai Udayar in 1941, Arckiam and his three sisters were enjoying the properties as per the provisions of Will separately and in their own right and that the plaintiff was not entitled to any share in the properties in India. The plaintiff instituted the suit in formi pauperis in July, 1956, claiming partition and separate possession of her one-fourth share in all the properties in India consisting of nanja lands and houses. Her case was that all the properties in the A schedule, in respect of some of which title stood in the name of the father Susai Udayar while in respect of others title stood in the name of the son, Arokiam, all belonged to Susai. The plaintiff's case is that Arokiam had no independent means of his own and that it was only out of the income from the properties which Susai Udayar acquired, that the entire A schedule and B schedule properties were acquired by Arokiam and all the items formed part of the estate of Susai Udayar. The plaintiff also claimed an account of her share of the income from the properties from the death of Arokiam in 1946. The suit was contested by defendants 1 to 3. Defendants 4 to 6 remained ex parte; they did not ask for partition and separate possession of their shares. The contentions of defendants 1 to 3 rested mainly upon Exhibit B-4, the certified registration copy of the original Will left behind by Susai Udayar. The defendant's case was that Irudayam, the husband of the fifth defendant, is responsible for this litigation, that he had set up and instigated the plaintiff, to file the suit and that the original Will, which was in the house of Arokiam, had been stealthily taken away by the plaintiff in collusion with Irudayam, the husband of the fifth defendant, along with other important documents and title deeds, and taking advantage of the fact that the original Will is in their custody and control, the plaintiff had been instigated to institute the suit, seeing the handicap which defendants 1 to 3 were labouring under on account of their inability to produce the original Will. The learned Subordinate Judge upheld the plaintiff's claim in the view that the contesting defendants had not satisfactorily establirh-ed the truth and genuineness of the Will of Susai Udayar dated 12th March, 1941. He also held that the plaintiff had failed to prove that the other properties in the A schedule and the properties in the entire B schedule were acquired by Arokiam with the income from the properties of Susai Udayar. He granted a decree in favour of the plaintiff in respect of only items 5, 18 to 24, 26 and 34 to 54 in the A schedule and negatived the claim of the plaintiff in respect of the pther items rh the A schedule and the entirety of the properties in the B schedule. He also held that Arokiam had been in separate possession of those properties from the year 194.1. He held that the plaintiff will be entitled to an account of the income in respect of A schedule items 5, 18 to 24, 26 and 34 to 54, only from 12th March, 1956, the date when the plaintiff issued the notice to the defendants claiming her share. On the side of the plaintiff, the plaintiff was examined as P.W. 1 and two other witnesses, P.Ws. 2 and 3 who gave evidence to show that Arokiam acquired the other properties out of the income from the properties of Susai Udayar. On the side of the defendants, the first defendant was examined as D.W. 2 and three other witnesses, D.Ws. 1, 3 and 4 gave evidence about the family history, about the Will and the other details. By a process of reasoning, which is very unsatisfactory, the learned Subordinate Judge reached the conclusion that the contesting defendants had not made out the truth and genuineness of the Will, though a certified registration copy of the Will had been produced. Hence the present appeal by the defeated defendants 1 to 3; as already observed, there is no memorandum of cross-objections by the plaintiff in so far as the trial Court disallowed the portion of her claim.

3. The main point which survives for decision is the One covered by Issue No. 4 of the trial Court, whether the Will dated 12th March, 1941 (Exhibit B-4) is true, valid and was executed by the testator in a sound disposing state of mind. We are sorry to note that the learned Subordinate Judge has not appreciated nor assessed the evidence in its proper background taking note of the human element involved. The question first arises, who is in possession of the original Will, why it is not produced. As Exhibit B-4 is a certified registration copy of the Will obtained from the Sub-Registrar's office in Burma, there can be no doubt about it that one Susai Udayar had executed a Will on 12th March, 1941 and had also registered the same on the same date. There is no dispute that the particulars of the testator mentioned therein i.e. B-4 refer to the father of the plaintiff, i.e., the ancestor of the parties; the legatees mentioned therein are the parties herein and the bulk of the properties dealt with thereunder are properties belonging to the ancestor of the family. Again, the equitable distribution of the properties also shows that it is a natural Will. Considerable and substantial landed properties have been given to the daughters and the rest of the properties in Burma and the properties in India have been given to the son. The Will is a perfectly rational Will and cannot be, by any means, said to be arbitrary, capricious or irrational so as to call for scrutiny from that point of view as exciting the suspicion of the Court. When once this stage is reached, that the testator (ancestor of the parties) did execute a Will, the next question is, who is interested in producing it and who is interested in supressing it. Here again, there is no dispute and it is obvious that the first defendant, if in possession of the original will, would certainly produce it and she has no motive to keep it back. If she produces any other Will as being the original and if it is not in conformity with Exhibit B-4, she will land herself in difficulties. The persons who are interested in keeping back the Will are obviously the plaintiff and defendants 5 and 6, because, if the Will is not proved and Susai should therefore be deemed to have died intestate, the plaintiff and defendants 5 and 6 would be entitled, to a share in the properties in India. The plaintiff, along with her sisters, therefore, have powerful motive to keep back the original Will. The evidence shows that the husband of the fifth defendant, Irudaya Udayar, is a scheming, mischievous person and he is mainly responsible for this litigation. He has instigated the plaintiff to file the suit; it is the definite stand of the first defendant both in her written statement as well as in her evidence, and this part played by Irudaya has been clearly suggested to the plaintiff. The plaintiff has admitted in her evidence that this Irudaya Udayar, the husband of the fifth defendant was attending the Court; even on the day when the evidence was given he was present. The first defendant has amply made out that the fifth defendant's husband is behind this litigation. He is not a stranger and rot an honest man either. His wife, the fifth defendant, was born in Burma, was bred up by her father in Burma and was educated in Burma. Her marriage also took place in Burma. The fifth defendant's husband was actually in management looking after the properties of her father. After Susai's death in 1941, it was the fifth defendant's husband Irudaya Udayar who remained in Burma and looked after the properties. That he is not an honest man is also evident from the letters which he wrote, Exhibits B-1, B-5 and B-3, to his brother-in-law, the husband of the first defendant. Those letters reveal that Irudaya Udayar was frequently pulled up for lapses on his part in the matter of management and rendition of accounts, the sale of jewellery and remittance of the sale proceeds, the collection of lease amounts and the collection of debts belonging to the estate. The evidence also shows that some time in 1046-47, the two sisters, along with their husbands, shifted to India and after 194.7.48, misunderstandings had arisen between the brother and the sisters. Irudaya Udayar even went to the extent of filing a suit claiming that certain properties purchased in the name of Arockiam, the husband of the first defendant (and son of Susai Udayar) were all taken with the moneys of Irudaya Udayar, but the suit filed by Irudaya Udayar failed and an appeal preferred was also dismissed. It is the case of the first defendant, and the evidence also shows, that after the death of the first defendant's husband, the sisters were frequently coming to the house and, taking advantage of the misunderstandings with regard to the third defendant's marriage in which the fourth defendant had assumed a hostile attitude, Irudaya Udayar manoeuvred to secure and pilfer away the original documents including the Will. The plaintiff is wholly unable to explain how she has filed the numerous original documents, Exhibits A-1 to A-22. These are all documents which, even according to her case, in the normal course, must be in the possession of the first defendant's husband and after his death, in the possession of the first defendant. The plaintiff was squarely cross-examined and she gave useless, prevaricating answers that her father gave those title deeds to the plaintiff, which is wholly unlikely, because the set up of the family clearly shows that the relationship between the father, Susai, and the son Arockiam was very cordial and there is no question of the father handing over any of the original title deeds to the plaintiff. Indeed, on the finding thai the properties belonged to Arockiam, there is no conceivable reason how the} came into the custody of the plaintiff This circumstances lends considerable support to the case of the first defendant that all the title deeds including the original Will have been very cleverly and stealthily pilfered by the husband of the fifth defendant with the connivance of the husband of the plaintiff and 4th defendant. The matter does not stop there. When the main charge is that the plaintiff is a tool in the hands of the fifth defendant's husband, Irudaya Udayar and the latter had been attending the Court proceedings, it was the obvious duty of the plaintiff to have examined Irudaya Udayar as a witness, because it was Irudaya Udayar who was throughout in Burma and looking after and managing all the properties. There is the further important fact that, in the letter, Exhibit B-1 dated 3rd December, 1941 written by Irudaya Udayar to the first defendant's husband, it is stated that the accounts and the 'Will' and the documents had been despatched by registered post to the first defendant's husband. This letter is dated 3rd December, 1&41, very shortly after the death of Susai Udayar. Irudya Udayar has deliberately avoided the box, because he would be confronted with all the aspects mentioned above, including his statement in the letter that he had sent the Will and the title deeds. Irudaya Udayar is, undoubtedly, interested in his wife, the fifth defendant, apart from hic own interest in the plaintiff whom he has set up as a tool in this litigation. Looked' at from any point of view, Irduaya Udayar is a very important witness in this case and therefore he ought to have been examined on the side of the plaintiff. The necessary adverse inference will have to be drawn. It is pity that the trial Court has proceeded to approach the matter in a mechanical manner without appreciating the main background and drawing the necessary adverse inference against the plaintiff. It is clear, therefore, in the first place, that Irudaya Udayar is in possession of the original Will and he is suppressing the same, both the plaintiff and Irudaya Udayar acting in collusion, to defeat the rights of the first defendant. The next aspect is, as mentioned already, that the first defendant has no motive to suppress the Will and if the original is not produced by her, it is for reasons beyond her control and that the original is not with her. It is not even suggested to her that she is keeping the original and suppressing the same.

4. The copy of the Will (Exhibit B-4) shows that it has been executed in a careful manner and with the assistance of a lawyer. The endorsements about the execution and the attestation clause also show that the requisite safeguards had been taken to satisfy the requirements of law as to execution and attestation. The Bui-ma lawyer who prepared the Will could not be examined and so interrogatories were administered to him by the plaintiff as well as by the first defendant. The interrogatories and the answers have been marked as Exhibits B-19, B-20 and B-21. The lawyer could not give any helpful evidence, because he was handicapped as the original was not produced before him and the certified copy alone was shown to him. He could not either affirm or deny positively any of the interrogatories administered. One thing, however, he has admitted that there is only one lawyer by name Maung Pe at Dedaye i.e. his name. More definite information could certainly have been obtained from this Burma lawyer if the original Will had been produced before him and the plaintiff, who is a tool in the hands of Irudaya Udayar, must take the responsibility for the same. A party who keeps back the original of a document, and does not produce the same before a witness who is the scribe of the document and to whom interrogatories are administered, cannot make any point that the scribe has not proved the Will. Indeed on the other hand, here too, the adverse inference will have to be drawn against the plaintiff. The answers given by the lawyer, far from helping the plaintiff, are really in favour of the first defendant. The next question is about the proof of the Will by the attesting witnesses. D.W. 4 was examined and he gave evidence to the effect that both the attestors are dead. It is true that this evidence was adduced at the end, but the plaintiff did not ask for any opportunity to adduce rebutting evidence. Evidently, in the course of the evidence adduced on the side of the first defendant, the particular statement' that the two attesting witnesses are dead was omitted as the question was not put by inadvertence. This was sought to be clarified by examining D.W. 4. The judgment does not show that the plaintiff objected to the examination of D.W. 4 at that stage; at any rate, from the judgment it does not appear that the plaintiff wanted any further opportunity to adduce rebutting evidence on her side. The Judge is therefore wrong in making a point about it against the defendant on the ground that this evidence was adduced at a belated stage. If the plaintiff had any grievance and the plaintiff knew that the attesting witnesses are alive, there is no doubt that the plaintiff would have asked for adducing evidence, to that effect and the trial Court would not have refused that request, seeing that this evidence was adduced by the first defendant at a belated 'stage. The resultant position, therefore, is that the Burma lawyer, the scribe, could not throw any light, the attesting witnesses are dead, we have only the certified copy of the Will and there is the evidence of D.W. 1, a man who has been living very near the testator in Burma, who is giving evidence that the attestors used to come to the testator's residence in Burma. P.W. 1 herself has admitted that the two attesting witnesses are known to P.W. 1; they were her father's neighbors in Burma and they used to come to her father's place in Burma. She has also admitted that D.W. 1, Santhiagu Udayar, is known to her father very well in Burma and that he used to mess in her father's place. It is this witness, D.W. 1, who has given evidence about the execution of the Will. The trial Court was not justified in rejecting his evidence on the ground that he has not attested the Will. The cross-examination of D.W. 1 does not make out that he is uttering lies. In the natural background, it is very likely that this witness was present in Burma at the time of the execution and registration of the Will and the evidence that he gives is true. He is not a stranger. Even according to the plaintiff, he is very well known to her father, he was living in Burma and frequently messing in her father's place. He had ample opportunity to know the execution of the Will if one was executed. We have scrutinised the evidence of D.W. i and we are satisfied that he is speaking the truth and his evidence cannot be rejected on the simple ground that he has not attested the Will. We have no hesitation in saying that for that reason his evidence cannot be rejected.

5. From the above, it will be seen that this is a clear case to which the well known maxim, 'Omnia praesumitntur contra spoliatorem', applies. (vide: Broom's Legal Maxims, 1939 (10th ) Edition, Pages 637 to 640). 'If a man, by his tortious act, withholds the evidence by which the truth of his case would be manifested, every presumption to his disadvantage will be adopted.' Irudaya Udayar and the 'plaintiff who is a tool in the former's hands are clearly the wrong-doers and every adverse inference will be drawn against them as they should take the responsibility for the non-production of the original Will. The first defendant has also satisfactorily accounted for the non-production of the original Will and the non-examination of the attesting witnesses as they are dead and no useful evidence could be given by the scribe. The first defendant has, therefore, proved the Will by other acceptable, satisfactory evidence, supplemented by such presumptions as would arise under the provisions of the Registration Act and Section 114 of the Evidence Act on the facts of this case. There is a general presumption about the execution of the Will arising under Section 60 of the Indian Registration Act (vide: Mulla's Indian Registration Act, Seventh Edition, page 256). It is true that registration, by itself in all cases, is not proof of execution, but if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of the registration officer under Section 60 of the Registration Act is relevant for proving execution. (See discussion in Sarkar's Evidence, Latest (12th) Edition, Page 640). As observed by the Privy Council in Mohammed Ihtishan Ali v. Jamna Prasad 48 I.A. 365 : I.L.R. 1922 P.C. 56, registration is a solemn act and if I no other evidence is available, the Court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executant and the executant was duly and properly identified before him. The same view has taken in Gopal Das v. Sri Thakurji , in which, after referring to the earlier decision of the Privy Council in Mohamed Ihtishan Ali v. Jamna Prasad 48 I.A. 365 : A.I.R. 1922 P.C. 56, Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side. There is a full discussion on this question as to the presumption arising from the fact of due registration, coupled with the presumption arising under Section 114 of the Indian Evidence Act, in a Bench decision of the Mysore High Court in Hutchegowda v. Ghennigegowda A.I.R. 1953 Mys. 49, in which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There is a full discussion of the relevant case law including the decision of the Brivy Council in Mohammed Ihtishan Ali v. Jamna Prasad 48 I.A. 365 : A.I.R. 1922 P.C. 56, aforesaid. In Revanna v. Dr. A.V. Ranga Rao A.I.R. 1952 Mys. 119, it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the persons concerned, the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in such cases, a presumption would arise under Section 60 of the Registration Act along with Section 114 of the Evidence Act See also Kashibai v. Vinayak : AIR1956Bom65 . It will be seen that in the ultimate analysis, the problem in each case is, 'has the best evidence been adduced on the facts of each case'; in the instant case, we have not the slightest hesitation in holding that this essential test for arriving at the truth has been amply satisfied.

6. There is one other aspect, i.e., the conduct evidence which leads to the same inference. From 1947 onwards, misunderstandings had arisen between the plaintiff and the first defendant and, if really the father had left no Will and the first defendant's husband was not entitled to the properties solely, the plaintiff and her two sisters would not have kept quiet for over eleven years and the plaintiff would have filed the suit just before the expiry of the twelve years' period. The letters which passed between the husband of the first defendant and the plaintiff also show that the relationship between the first defendant's husband and fifth defendants' husband was not cordial and the first defendant's husband was insisting on strict, true and correct rendition of accounts. The plaintiff and her sisters did not assert their rights during the lifetime of the husband of the first defendant. They kept quiet for over eleven years. From this, it can be legitimately presumed that the plaintiff and her sisters were fully aware that there is a Will and that under that Will they are not entitled to any of the properties. The trial Judge himself has disallowed any claim for mesne profits till March, 1956, when the notice, Exhibit A-18, was issued. In our opinion, the delay in instituting the suit, especially for over ten years, when admittedly misunderstandings had arisen, is cogent evidence bearing upon the truth of the Will.

7. Defendants 5 and 6 are each entitled to equal shares like the plaintiff, yet they have not asked for partition and possession of their shares, paying court-fee therefor, which shows that they have no faith in their case, and this again tends to the same inference that the Will is true.

8. What we have discussed above is sufficient to prove that the testator was in a sound disposing state of mind at the time the Wil) was executed. The contents of the Will, the natural, rational, fair and equitable way in which the testator has distributed the estate amongst his children also shows that he was not acting capriciously and that he was executing a Will fully realising the implications of what he was doing. There is absolutely no evidence that he was suffering from any serious illness which impaired his mental faculties. Indeed, as observed already, the fifth defendant himself has sent the Will to the first defendant, which, by itself, is sufficient proof that it is a Will genuinely executed by the testator in a sound disposing state of mind.

9. For all these reasons, the appeal in A.S. No. 321 of 1965 is allowed and the plaintiff's suit is dismissed with costs in both the Oourts. As the plaintiff has completely failed, the Court-fee payable to the Government on the plaint will be recovered from her. If, in the meanwhile, any portion of the Courtfee had been paid by the first defendant in pursuance of the direction of the trial Court, the plaintiff is liable to reimburse the same to the first defendant.

10. A.S. No. 562 of 1970 : There is absolutely no substance in this appeal which has been preferred as cross-appeal by the plaintiff in respect of the items disallowed. A perusal of the judgment of the trial Court shows that the plaintiff has totally failed to prove that these assets were acquired with the aid of the income from the properties belonging to the testator. The appeal in A.S. No. 562 of 1970 is dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //