BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07/01/2010
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI
A.S(MD)No.668 of 1984
1.Srirangam Co-operative Building
Society, by its Special Officer
12.Alamelu Ammal ... Appellants
* (7th appellant has been brought
on record as LR of the
deceased 4th appellant vide
order of court
* (Appellants 8 to 12 are brought
on record as LR of the
deceased 6th appellant vide
order of court in
2.State of Tamil Nadu rep. by
The Collector of Tiruchirapalli,
at Collectorate, Tiruchi,
5.J.Chandra Sekharan son of Jayaraman
7.Vimala .. Respondents
* (R6 & R7 have been brought on
record as LRs of the
deceased 1st respondent vide
order of court
The appeal filed under Section 96 of C.P.C., against the judgment and decree, dated 31.01.1984 in O.S.No.667 of 1979, on the file of the Second Additional Subordinate Judge, Trichirappalli.
!For Appellants ... Mr.Anand Chandrasekar
For Mr.K.Sarvabhauman Associates
^For Respondents ... Mr.K.Prabhakar
The appeal is preferred against the judgment and decree, dated 31.01.1984 made in O.S.No.667 of 1979 and in O.S.No.440 of 1982, on the file of the Second Additional Subordinate Judge, Trichirappalli. The Suit in O.S.No.667 of 1979 was filed for declaration that the suit properties A and B schedule belonged to the Trust and for consequential relief of recovery of possession and injunction.
2.The brief facts of the case are as follows:-
The suit property, in Town Survey No.734 and old Survey No.302 originally belonged to one Krishna Lala. The Suit property was known as 'Kishna Lala Gardens', and it is situated at Srirangam, consisted of a Kal Mandapam, Nandavanam (Flower Garden)and an Anjaneyar Temple. The Madam is known as 'Utharadas Madam'. Krishna Lala died leaving behind his wife Chandra Bai and his only daughter Saraswathi Bai Ammal as his legal heirs. Krishna Lala enjoyed the property by leasing them and was conducting the 'Dharmams' and also conducted Poojas from the income of the properties. Thereafter, his daughter Saraswathi Ammal was in possession and enjoyment of the property. The said Saraswathi Ammal had executed a registered 'Will', dated 04.02.1949, creating a Trust and appointing the plaintiff, i.e., Munisami Konar, as Executive Trustee. The first defendant is the State of Tamil Nadu, represented by the Collector of Tiruchirappalli and the second defendant is the Srirangam Co-operative Building Society, represented by its President. The other defendants are the alleged purchasers of the property from the second defendant. Since the defendants have trespassed into the property, suits were filed for declaration and for recovery of possession. Initially, the suit in O.S.No.667 of 1979 was filed and latter O.S.No.440 of 1982 was filed.
3.In both the suits, the second defendant contested the Suit in the capacity of beneficiary under a land acquisition. The case of the second defendant is that the suit property was acquired by the Government under the Land Acquisition Act, 1984, for the purpose of forming a Co-operative Colony. The Special Land Acquisition Officer, Co-operative Housing Scheme, had acquired the property and an award was passed on 28.11.1951 and had deposited the entire award amount into the Court. The property was allotted to the second defendant, who is the Co-operative Society, which in turn, allotted the suit property to its members and they have put up construction and they are in possession and enjoyment of the property.
4.The suit was so contested and on framing of triable issues and on the basis of oral and documentary evidence, the learned Second Additional Subordinate Judge, Tiruchirappalli found that the suit property was acquired by the Government and the same has been allotted to the various defendants and they have also put up constructions and therefore, the plaintiff is not entitled for a declaration regarding 'B' schedule property. However, the Court had found that 'A' schedule property is still vacant and therefore, the plaintiff is entitled for recovery of possession of the 'A' schedule property and thereby, granted the relief of declaration of both the items of the suit properties, but, granted the relief of recovery of possession only with rgard to 'A' schedule property.
5.Aggrieved by the said judgments and decrees, the defendants 2 to 9 have preferred the present appeal on various grounds. The important grounds taken by the defendants in the appeal is that the plaintiff has not proved the title and the execution of 'Will', as required by the law and without setting aside the award passed in proceedings L.A.O.P.No.62 of 1952, the plaintiff is not entitled to any relief. Yet another plea was also taken that the plaintiff had the knowledge of acqutition in the year 1967, the suit was filed only in the year 1979 and the same is bared by limitation.
6.The facts elicited from the evidence are as follows. The suit property originally belonged to one Krishnalala and he had obtained the property under a settlement deed, dated 22.09.1928, executed by one Mannabaiammal. After the death of Krishnalala, the property devolved upon his only daughter Saraswathi Bai and who in turn, executed a 'Will', dated 04.02.1949, creating a Trust and appointing the plaintiff as the Executive Trustee and the said Saraswathi Bai died as evident from Ex.A5, Death Certificate. Meanwhile,acquisition proceedings were initiated and a Notification under Sec. 4(1)of the Land Acquisition Act was issued by the Government for acquisition of the suit property and the other properties for the purpose of forming a Co-operative Housing Colony. A Declaration under Section 6 was issued on 23.08.1949 and on 28.12.1951, the Land Acquisition Officer has passed an Award and the possession was taken by the Government. On 06.03.1952, a reference was made to the Tribunal in O.P.No.65/52 and an award was passed and one of the claimants in the award had received the compensation as the person who was in possession of the property. On 26.02.1968, a legal notice was issued by the first respondent, but, the suit was filed only in the year 1979 claiming title to the property through the will. The trial court believed the will as it was ancient document and also considered the acquisitions and subsequent allotment of B schedule property to various persons and therefore has granted the relief of declaration but restricted possession of A schedule property.
7.The points for consideration arises in this appeal are as follows:-
(i) Whether the Registered Will, dated 04.02.1949 was proved as required under law?.
(ii) Whether a trust was created under the 'Will' in relation to the suit properties?
(iii) What is the effect of the land acquisition proceedings?
(iv) Whether the plaintiff is entitled for the recovery of possession of 'A' schedule property?
8.Mr.Anand Chandrasekar, learned counsel for the appellants would submit that the alleged 'Will' was not properly proved by the plaintiff. In support of his contention, the learned counsel relied upon a judgment of this Court in R.Suburathinam Vs. T.Govindaraj reported in (2009 (7) MLJ 476), wherein it has been held as follows:-
"56. A bare perusal of it would make the point clear that the defendants cannot place reliance on section 90 of the Indian Evidence Act and claim that they are absolved from the responsibility from proving the due execution of the Will by the testator as though it is an ancient document. The Hon'ble Apex Court clearly and categorically mandated that Section 90 of the Indian Evidence Act cannot be taken as a shelter by the propounder of the Will, but he has to prove strictly in accordance with Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act coupled with Sections 69 and 70 of it, as the case may be."
9.The learned counsel has also relied on the judgment of the Hon'ble Apex Court in Bharpur Singh Vs. Shamsher Singh reported in (2009 (3) SCC 687), wherein in paragraph 14, it has been held as follows:-
"14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause(c) of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.
10.It is further held in paragraph 19, which reads as follows:- "19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application. a will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 60 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence."
11.The learned counsel pointed out that the trial Court has presumed the genuineness of the 'Will', as it was 30 years old document, which is not correct.
12. On the contrary,the learned counsel for the respondent would submit that originally the suit property belonged to one Krishnalala and he had obtained the property under a settlement deed, dated 22.09.1928, executed by one Manabaiammal. The learned counsel pointed out that after the death of Krishnalala, the property devolved upon his only daughter Saraswathi Bai, who in turn, had executed a 'Will', dated 04.02.1949, creating a Trust and therefore, the suit property had become a Trust property. Under the 'Will', the plaintiff was appointed as the Executive Trustee and therefore, he had filed the suit for a declaration that the properties are Trust property and for recovery of possession. The learned counsel further pointed out that the Trust was not a party to the acquisitions proceedings and the acquisitions is non -est.
13.The learned counsel submitted that since the acquisition is non-est in law , there is no necessity to set aside the award and the trial Court has correctly found that the plaintiff is entitled at least to one schedule of the suit property. The learned counsel also pointed out that the will was executed on 04.02.1949 neither the attestor nor the person, who knows the hand-writing of the attestor are alive and therefore, the genuineness of the will cannot be questioned by the defendants.
14.The learned counsel relied on the judgment of this Court in V.Chandrakanth Vs. State of Tamil Nadu reported in (2004 (4) MLJ 632), wherein, in pargaraph 6.5, it has been held as follows:-
" "6.5. In the contrary, the specific reason for not issuing the notification under Sec.4(1) of the Act dated 19.2.1975 to the petitioner, even though the petitioner became the owner of the land on 31.7.1974 and patta was issued on 16.11.1974, was that the respondents cannot be expected to verify the revenue records again and again for the purpose of confirming any change in the Revenue Register, which, in our considered opinion, is not only unreasonable and arbitrary, but also perverse and goes to the root of the issue, rendering the entire acquisition proceedings a nullity for want of issue of notification to the petitioner for an enquiry under Sec.5-A of the Act before issuing a declaration under Sec.6 of the Act."
15.The learned counsel further relied on the judgment of the Hon'ble Apex Court in Madhukar D.Shende Vs. Tarabai Aba Shedage reported in (AIR 2002 SC 637), wherein, it has been held as follows:-
"The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict- positive or negative."
16.The learned counsel has also relied on a judgment of this Court in M.Duraisamy Vs. State of Tamil Nadu reported in (2007 (3) MLJ 288), wherein this Court has laid a ratio decidendi in land acquisition cases.
17.The learned counsel relied on the judgment of the Hon'ble Apex Court in Premier Tyres Limited Vs. The Kerala State Road Transport Corporation reported in (AIR 1993 SC 1202), for the proposition of res judicata.
18.I have heard the submissions of the learned counsel on either side and perused the material available on records.
19.Ex.A1, an extract from the Inam register and Ex.A2, settlement deed, dated 22.09.1928, would show that the property originally belonged to the said Krishna Lala. The property is comprised under T.S.N.734/1&2, as evidenced by Ex.A3. Ex.A4, is a registered 'Will', dated 04.02.1949. Ex.A5, is the death extract of the said Saraswathi Bai, who is the executant of the Will, and she had died on 11.02.1949. Ex.A6 is a letter, dated 26.10.1967, by the plaintiff to the District Revenue Officer, in which, he has mentioned about the acquisition by the Government. The plaintiff has issued a Lawyer's Notice, dated 26.02.1968 and the suit was filed in the year 22.02.1971, for declaration and for recovery of possession.
20.The defendants have filed documents relating to the acquisition proceedings. Ex.B5, dated 14.06.1952, is the certified copy of the LAOP Register in LAOP No.65/1952. One Krishnalala of Utharadas Madam was shown as first claimant and it is stated therein that his whereabouts was not known. Another claimant is shown as M.R.Venkatappa Chettiar. Ex.B.6 is the reference to the Court under Sections 30 and 31 of the Land Acquisition Act, 1984. The first claimant is shown as Krishna Lala and again it is stated that his whereabouts was not known. The Trust/Madam was represented by two trustees and both of them were served notices and ultimately the Court has passed the order as follows:-
"The 2nd claimant has been declared as entitled to the entire compensation amount. I.A.319/54 dated 7.3.54 and the said 2nd claimant has been paid the amount by cheque on 9.4.55."
21.In the trail court a Commissioner was appointed and he had inspected the property and had filed a report and a plan. In the plaint, 'A' schedule property is shown as Utharadas Madam, (which has been converted into an office of the second defendant) Anjaneyar Temple and a vacant space. The 'B' schedule property forms part of 'A' Schedule property. Ex.A.10 is the plaint plan, which would show both 'A' and 'B' schedule properties.
22.The trial Court had found that Ex.A4 is a registered 'Will', which is 30 years old and the Will, is a genuine one. Under Section 63(c) of the Indian Succession Act, 1925, a Will shall be attested by two or more attesting witnesses. Under Section 69 of the Indian Evidence Act, 1872, if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. The burden of proof that the Will has been validly executed and is a genuine one rests on the propounder and the execution must be proved by examining at least one of the attesting witness, if the attesting witness is alive.
23.Under Section 90 of the Indian Evidence Act, where any document, proved to be thirty years old, is produced, the Court may presume that the signature and every other part of such document duly executed and attested. However, The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application as a Will must be executed as provided under Section 63(c) of the Indian Succession Act, 1975, and should be proved under Section 68 of the Indian Evidence Act and if there is no such attesting witnesses, the provision under Section 69 of the Indian Evidence Act has to be pressed into service. There cannot be a presumption for the 'Will' simply because it is 30 years old. It is more necessary to prove the Will, when there is a suspicious circumstances of execution of such 'Will'.
24.Ex.A4, a registered Will, is dated 04.02.1949 and the executant, had died on 11.02.1949 i.e., six days prior to her death the Will was executed.
25.A perusal of Ex.A5, the death extract would reveal that the place of death is shown as Government T.B.Hospital, Royapettah, Madras and the cause of death is Pulmanary Tuberclosis and the duration of ill-ness is nine months. In Ex.A4, Will, though it is registered, the said Saraswathi Bai has not signed but has made 'X' mark. One Rajaraman and Arumugam Chettiar were shown as attesting witnesses. There is no evidence to show that who has presented the 'Will' for registration. Though there is left thumb impression available in the document, the address of the executant is also shown as No.14, Muthiah Mudali Street, Vannar Pet, Madras. In the LAOP proceedings, one of the claimant is shown as Krishnalala and his whereabouts not known. A reference was made under Sections 30 and 31(2) of the Land Acquisition Act to decide, who is entitled to receive the compensation. From the records, it is made clear that a notice was issued to the Trustees of the Trust/Madam and it was not made clear whether the Trust staked any claim under the will. However, the Court has declared that the second claimant is entitled to receive the compensation amount, by order dated 07.03.1954.
26.Therefore, the trial Court is wrong in drawing presumption that the Will dated 04.02.1949 is 30 years old and genuine. The will has to be proved as required under law and the same has not been proved. There is also no evidence to show that a Trust has been created and in existence. As far as the temple, viz., Anjaneyar Temple, is concerned, even according to the second defendants, they have not alienated the temple and the surrounding vacant site in 'A' schedule property, but, in a part of 'A' schedule property, the second defendant, viz., Srirangam Co-operative Building Society, has put up a construction of their office. Whether the plaintiff is in possession and enjoyment of the temple and the surrounding vacant site is not proved before the trial Court.
27.Simply because there is a vacant site available in 'A' Schedule property, the trial Court has granted a declaration of title to A and B schedule properties and has also granted recovery of possession of 'A' schedule property. 'B' schedule property had been acquired for housing society and the rest of the defendants have been in possession and enjoyment of the same by constructing houses. Likewise, in 'A' schedule property except the temple and the surrounding vacant site, the rest of the property , the second defendant's office building is situated.
28.Both the properties have been validly acquired by the Government and a notice has been validly served on the owners of the property and the rights of the parties were also decided by the reference Court in LAOP No.65/52, under Sections 30 and 31 (2) of the Land Acquisition Act. The Trustee and the Madam were parties to the proceedings and they have failed to establish their rights before the Land Acquisition Tribunal. The award and the decision in reference under Sections 30 and 31(2) of the Land Acquisition Act, will bind the parties and the issue before the Tribunal was also regarding the ownership of the property and therefore, the present suit is also barred under the Principles of Res judicata. The various judgments relied on by the respondents are not applicable to the facts of the present case.
29.Therefore, in my considered view, the Will dated 04.02.1949, is not proved as required by law and the properties are not proved as Trust properties and the Land Acquisition proceedings and the order passed in LAOP under Sections 30 and 30(2) of the Act, is binding and will operate as res judicata and therefore, the trial Court is wrong in granting the relief of declaration for both the properties and the relief of recovery of possession for 'A' schedule property. Therefore, the judgment and decree of the trial Court is liable to be set aside. As far as the temple and the surrounding vacant site, is concerned, it is to be treated as temple property and the plaintiff is at liberty to take appropriate steps with HR & CE Department for necessary declaration or for a scheme for maintenance and for conducting Poojas etc.,
30.In the result, the appeal is allowed and the judgment and decree, dated 31.01.1984, made in O.S.No.667 of 1979, on the file of the learned Second Additional Subordinate Judge, Trichirappalli is set aside. No costs.
The Second Additional Subordinate Judge,Trichirappalli.