PALANISWAMI Vs. P VELLINGIRI GOUNDER

JUDGEMENT

(1.) The plaintiff in O.S.No.967 of 1980 on the file of the Subordinate Judge, Coimbatore is the appellant.

(2.) The case of the plaintiff can be set out as hereunder:- The plaintiff and the first defendant are brothers and sons of one Patti Gounder who died in the year 1977. The defendants 2 to 4 are sons of the first defendant. The plaint 'A' and 'B' schedule and other items of properties belonged to the plaintiff, the first defendant and their father late Patti Gounder. There was a partition in the family on 31.3.1955. According to the plaintiff, Patti Gounder assured at that time that in respect of his share, he would see that after his demise the properties go to both of them, namely, the plaintiff and the first defendant in equal share. Only because of that, the plaintiff agreed for the 1955 partition and allotment of one share to the first defendant, even though under law, the first defendant was not entitled to any share after execution of the deed of surrender in the year 1950. After the partition in the year 1955, Patti Gounder was in possession and enjoyment of his share till his death. As per his assurance, late Patti Gounder executed a registered Will dated 4.6.1975 bequeathing the plaint schedule properties and other items of the properties, which he got in the family partition, to the first defendant and the plaintiffs. Even after the partition, Patti Gounder was taken care of only by the plaintiff, who was assisting him in cultivating the lands and collecting rent from the house properties. While so, the first defendant under the pretext of taking care of his father took him to his house and the plaintiff had no suspicion at that time. The plaintiff now understands on enquiry that the first defendant prevailed upon Patti Gounder to execute the second Will and he (Patti Gounder) had executed a Will bequeathing the plaint schedule properties in favour of his three sons, namely, defendants 2 to 4 to be enjoyed by them during their life time and thereafter to their children absolutely and cancelling the earlier Will executed in favour of the plaintiff and the first defendant. According to the plaintiff, the second Will is not a true and valid Will and it was brought about by the first defendant to defeat the rights of the plaintiff. The second Will is in violation of the assurance and undertaking given by the father Patti Gounder at the time of partition. It was the plaintiff who was looking after Patti Gounder for a very long time and Patti Gounder had no ill-feeling against the plaintiff. After Patti Gounder executing the first Will, he was not in sound health and that was the reason he was not conducting the Court proceedings and in fact, it was the plaintiff who was conducting the same. The second Will should have been brought about by undue influence and coercion by the first defendant who had vengeance against the plaintiff. Till Patti Gounder left the plaintiff's house early in the year 1976, there was no dispute or quarrel between him and Patti Gounder. Under the guise of looking after his father for some time, during his last lap of life, the first defendant had brought about the second Will into existence and claimed false rights taking advantage of the old age of Patti Gounder. In fact, Patti Gounder would not have voluntarily executed the second Will. After the death of Patti Gounder, the first defendant using his influence forcibly entered into the plaint 'A' schedule property and took possession and enjoyment of the same. The first defendant is liable to surrender the 'A' schedule property and also to repay the mesne profit from the date of death of Patti Gounder.

(3.) A common written statement has been filed on behalf of the defendants 1 to 4. The claim that the first defendant was leading a wavered life and hence with a view to save the properties, the surrender deed was executed by the first defendant has been denied. The circumstances under which the said document came to be executed has been explained as under. According to these defendants, that was done under the advise given by the astrologers to the father Patti Gounder. The advise being that the first defendant should not hold any joint family property as he was running bad time for some years. The release deed executed in the year 1950 was only a nominal one and was not intended to be acted upon and in fact, it was never acted upon. The first defendant had been all along in possession and enjoyment of the properties along with the father Patti Gounder and the plaintiff notwithstanding the said release deed until the properties were partitioned under the partition deed dated 31.3.1955. The claim of the plaintiff that at the time of partition the deceased Patti Gounder made an assurance has been denied. The execution of the Will Ex.A-5 dated 4.6.1975 has been admitted. According to these defendants, subsequent to the said Will, the deceased Patti Gounder entrusted a sum of Rs.25,000/- to his daughter Kamalammal to be kept by her for his benefit. The deceased Patti Gounder, after executing the first Will, called upon Kamalammal to pay back the said amount. She had represented that the said amount was taken away by the plaintiff and that she was not in a position to get back the amount from him. The deceased Patti Gounder thereafter requested the plaintiff to return the said amount, but the plaintiff refused. In view of this, the relationship between the plaintiff and the deceased Patti Gounder got strained. The deceased Patti Gounder distressed by the conduct of the plaintiff desired to execute the second Will Ex.B-6 dated 24.4.1976 which is the subject matter of this suit. The deceased Patti Gounder left the plaintiff and began to live with the first defendant out of his own free will and accord. After leaving the plaintiff, Patti Gounder never returned to him till his last breath. Till 1975 Patti Gounder was living by himself, then with the plaintiff and finally, he came and joined the first defendant. The first defendant looked after Patti Gounder, provided him with necessary medical care and assisted him in all ways. In fact, a sum of Rs.25,000/- was spent towards the treatment, apart from meeting the entire funeral expenses. It was he who conducted the last ceremonies spending Rs.25,000/-. Because of the conduct on the part of the plaintiff, namely, his refusal to pay the sum of Rs.25,000/-, the deceased Patti Gounder executed the second Will and settled the properties in favour of the defendants 2 to 4 and their children. The Will is genuine, true and valid one and not brought about by fraud or undue influence or unfair means as claimed. The properties bequeathed under the second Will Ex.B-6 being the absolute properties of Patti Gounder, he had every right to deal with the properties in any manner he liked. The plaintiff has not sought to set aside the second Will on the ground of fraud or undue influence as alleged in the plaint and a mere suit for possession without setting aside Ex.B-6 Will dated 24.4.1976 is not maintainable in law. Hence, the suit as prayed for is not valid and the same is liable to be dismissed in limine.