S R NANJUNDAN Vs. S R SRIKANDAN

JUDGEMENT

(1.) THE following are the allegations contained in the plaint: 1. (a) THE plaintiffs 1 to 3 and defendant are brothers, who are sons of S.N. Ramasamy Iyer. THE fourth plaintiff is their sister. Though the deceased had executed three Wills dated 1.9.1980, 4.1.1982 and 12.7.1982 claiming that the suit properties as his self acquired properties, he must have deemed to have died intestate. He died on 14.8.1984. THE plaintiffs 1 to 3, defendant and the deceased all constituted a Hindu joint family. THE suit properties were acquired in 1934 in the name of the deceased being the father and kartha of the family. He was employed as a Clerk in State Educational Service and his salary was hardly sufficient to maintain the large family. 1. (b) THE joint family possessed certain ancestral properties near Sulur and the suit sites were acquired from and out of the income from the ancestral properties. For putting up the constructions on the site, the income from the ancestral properties, supplemented by borrowings was utilised. Later on, when the plaintiffs 1 to 3 began earning, additional constructions were put up from time to time. THE suit properties were also maintained and kept in good and tenantable repairs from out of such contributions. While so, a part of the ancestral properties were sold earlier and other part of the properties were sold in 1977. THE proceeds of sale was utilised for family necessities and benefit, including discharge of debts, incurred for construction and maintenance of suit properties by the deceased and the surplus sale proceeds were deposited in bank in the name of the deceased. 1. (c) THE partition of ancestral properties between the deceased and his brothers is said to have been effectuated in 1938. Since the brothers had not made any claim over the suit properties, the suit properties were noted as self acquired properties of the deceased in the partition deed, which is not true. THE defendant who resided in the suit properties since 1970 with the aged parents was requested to look after them with all comforts and the plaintiffs 1 to 3 were contributing for their maintenance and maintenance of the suit properties. THE plaintiffs' mother died in the year 1979. 1. (d) After the death of the deceased in 1984, the defendant's behavioural pattern excited suspicion. THE 3rd plaintiff was constrained to make enquiry and obtained Registration copies of the three Wills executed by the deceased. Only after going through the same the plaintiffs were shocked to learn about the wily machinations of the defendant to grab the entire Suit properties to the detriment of other co-sharers. THE deceased was not a free capable testator was apparent on the face of varying bequeaths, particularly from the reason given in the last Will dated 12.7.1982, bequeathing the entire suit properties to the defendant. THEre was no reference to such reasoning in the first two Wills coupled with a wholesale bequeath in favour of the defendant under the last Will dated 12.7.1982 which is prima facie proof of the vitiating circumstances and the lack of sound and disposing state of mind of the testator. THErefore, the onus probandi is on the defendant, the sole beneficiary, to prove that the Will dated 12.7.1982 is the Will of a free and capable testator. 1. (e) THE claim of the testator that the suit properties were his self acquisition is untenable. THE possession and enjoyment as joint family properties are contra to the stray claim made in the partition deed and in the impugned wills. Despite repeated demands made by the plaintiffs, the defendant did not agree to any amicable partition of the suit properties or to pay the value of their shares thereon. THE plaintiffs sent registered notice of demand claiming their shares on 22.8.1990, but the defendant refuted the plaintiffs' claim by way of reply notice dated 3.9.1990 through his counsel and reiterated that the suit properties were self-acquired properties of the deceased and therefore he had every right to dispose of his property as he pleased. Hence the suit for partition and division.

(2.) IN the written statement filed by the defendant, the following are averred: 2. (a) The suit is false, frivolous, vexatious and not sustainable in law as well as on facts. The defendant denies the entire allegations in the plaint except that those are specifically admitted and the plaintiffs are put to strict proof of their allegations. The Wills dated 1.9.80 and 12.7.1982 are vitiated as false and the further allegation that the deceased must have deemed to have died intestate is equally false. It is false to state that the suit properties were acquired from and out of income from ancestral properties. The further allegations that the plaintiffs 1 to 3 contributed for the alleged additional construction is false. It is also false that the suit properties were maintained from and out of the contributions by the plaintiffs. 2. (b) Originally the deceased father S.N.Ramasamy Iyer purchased Site No.20, adjacent to the suit property, from Coimbatore Municipal Council for Rs.336/- as per sale deed dated 3.3.1990. It was purchased as his self acquired property out of his own earnings as Clerk in the office of INspector of Schools, Coimbatore. The ancestral properties were partitioned between S.N. Ramasamy Iyer and his brothers only on 25.4.1938. Only after the said partition he was handed over his share to be managed by himself. After purchase of the site on 3.3.1930, S.N.Ramasamy Iyer constructed super structure by borrowing amount from the Coimbatore Cooperative building society. Subsequently he sold this property to one Jeveenna Rao for Rs.5,000/- on 21.10.1931. As per sale deed dated 9.1.1934, S.N. Ramasamy Iyer purchased the present suit properties from his brother-in-law S.R. Subba Rao for Rs.2,500/-. On the date of sale he paid Rs.550/- by way of cash and the balance amounts were permitted to be discharged at a later date. A sum of Rs.900/- was paid to the Coimbatore Cooperative Building Society out of the sale consideration. 2. (c) S.N. Ramasamy Iyer spent his own money for the purchase and construction of the earlier property and as well as the suit property. IN the family partition dated 25.4.1938, the suit property is described as self-acquired property of S.N. Ramasamy Iyer, as his brothers accepted the separate status of S.N. Ramasamy Iyer because of his self-acquisition of the suit property. If at all the suit properties had any ancestral nucleus, the brothers of S.N.Ramasamy Iyer would have claimed their shares in the suit property. Therefore the plaintiffs or other persons cannot have any claim over the suit properties. 2. (d) A portion of ancestral agricultural lands were sold by S.N. Ramasamy Iyer and his 4 sons as per sale deed dated on 13.9.1946 for Rs.5,000/- for discharging the family debts as recited in the sale deed. Again in 6.5.1955 another portion of agricultural lands were sold by all the members of the family for Rs.9,240/- and the said amount was also spent for the family. Finally, the remaining agricultural lands were sold as per sale deed dated 14.9.1978 and the sale amount was later on distributed to plaintiffs 2 to 4. The entire income from the agricultural lands and the entire sale proceeds from them have been utilised for the personal maintenance, education and marriage of the family members. Apart from this, the salary income of S.N. Ramasamy Iyer was also utilised for the welfare of the family. 2. (e) The plaintiffs cannot interpret the partition deed according to their convenience. The purchase of vacant site on 9.1.1934 exhibit the ignorance of the plaintiffs. The allegation that the plaintiffs contributed for the maintenance of the parents is false, as none of the plaintiffs contributed anything for that purpose. This defendant has been looking after his parents till their life time and the parents were residing in the suit properties with the defendant. 2. (f) The 1st Will dated 1.9.1980 was executed by the father when he was in a sound and disposing state of mind and he was hale and healthy. The plaintiffs have never objected to that. The second Will dated 4.1.1982, was got at the instance of the first plaintiff, under the guise of taking the treatment of his father. He induced him to sign some papers and got it registered as a Will without the knowledge and consent of the father. This was found out by the father himself and the same was expressed by him as per his letter dated 4.7.1982 addressed to the first plaintiff and as per the writings in his diary. The said Will dated 4.1.1982 was immediately cancelled by executing the last Will dated 12.7.1982, on his own free Will in a sound and disposing state of mind. The father had every right to dispose of his self acquired property according to his will and pleasure. 2. (g) Without a prayer for declaration or cancellation, the suit for partition is not maintainable. The suit itself is an abuse of process of law. The defendant has been sufficiently earning in his industry and has been keeping the parents and children in good comforts for the last 40 years. Hence the suit may be dismissed.

(3.) IT is the main thrust of the plaintiffs that the suit properties were purchased by the deceased S.N. Ramasamy Iyer in his name in 1934, utilising the income received form the joint family properties and that he had no right to execute the Will conferring the right of the property on the defendant in entirety. Conversely, it is contended by the defendant that the suit properties were acquired by S.N. Ramasamy Iyer out of his own funds, which had no reference to the alleged joint family properties and that the documents produced by him would establish that they are purely self acquired properties.