Rangabashyam Naidu vs V. Premkumari and Others

Suryamurthy, J.—This is a second appeal from the judgment of the learned Principal Subordinate Judge of Cuddalore who allowed A.S. No. 351 of 1974 on the file of his court and setting aside the judgment and decree of the learned District Munsif of Tindivanam in O.S. No. 1173 of 1972, decreed the suit in favour of Premakumari, the first respondent herein for declaration of her title to the suit properties and for recovery of possession of the same. The plaintiff instituted the suit claiming title to the suit properties under a Will, dated 30th May 1963 executed by her maternal grand father, Thirumalaisami Naidu in her favour. Defendants 1 and 2 who are the sons of Thirumalaiswami Naidu impugned the genuineness of the Will and set up a Will, dated 3rd September 1968 in their own favour. The learned District Munsif held that the Will, a registration copy of which has been marked as Ex. A1, has not been proved, that even though the Will, dated 3rd September 1968 set up by the second defendant has not been produced, the evidence that such a Will was executed is sufficient to prove that the original of Ex.A.1 is not the last Will and testament of Thirumalaiswami Naidu and that, therefore, the plaintiff is not entitled to a declaration of title. He, therefore, dismissed the suit with costs of the second defendant who was the only contesting defendant. On appeal, the learned Principal Subordinate Judge of Cuddalore examined P.Ws.3 and 4 who have attested the original of Ex.A.1 and P.W. 5 who is the scribe of the original of Ex.A.1 and, relying on their evidence, came to the conclusion that the original of Ex.A.1 was duly executed by Thirumalaiswami Naidu while in a sound disposing state of mind. He took into consideration the fact that Thirumalaiswami Naidu died five years after the execution of the original of Ex.A.1. As Thirumalasami Naidu committed suicide while he was residing with the second defendant and as he was admittedly residing with the second defendant till about the time of his death, the learned appellate Judge drew the inference that the original of Ex.A.1, should have been with the testator while he was living with the second defendant. This, in my opinion, is a logical inference which should be irresistibly drawn from the indisputable fact that Thirumalaiswami Naidu was living with the second defendant till about the time of his death. The original of Ex.A.1, should have been with the testator as he had a right to change the will at any time. The second defendant in whose house the testator was residing till about the time of his death has obviously suppressed the original of Ex.A.1. This second appeal has been admitted for determining the following question of law formulated by N.S. Ramaswami, J.:--

Whether it is open to the plaintiff to claim title to the suit properties in view of the settlement proceedings under Exs.B3, B4 and B5 and whether the Civil Court is not barred from going into the question of title in respect of the suit properties?

The learned counsel for the appellant also wanted to argue, and I have permitted him to argue, the question regarding the genuineness of the Will. It is also contended by the learned counsel for the appellant that the failure of the plaintiff to produce the original of Ex.A1 has not been explained away. There can be no doubt that the original of Ex.A1 should have been with the deceased testator at the time of his death as he was residing with the second defendant at the time of his death. All his belongings including the original of Ex.A.1, were obviously with the second defendant. As the second defendant does not derive any benefit under the original of Ex.A.1, he has suppressed the same. This conclusion is inevitable from the aforesaid circumstances.

The execution of the Will by Thirumalaiswami Naidu while in a sound disposing state of mind has been proved by P.Ws.3 and 4 who have attested the Will as well as by P.W.5 who has drafted the Will to the dictation of the testator. They also prove that the testator Thirumalaiswami Naidu went to the office of the Sub-Register and presented the will for registration and that he was in a sound and disposing state of mind at that time. Thirumalaiswami Naidu died only five years after the execution of the Will, and therefore, there can be no doubt about the fact that he was in a sound and disposing state of mind at the time of his executing the Will, as spoken to by P.Ws.3 to 5. Hence the finding of the learned appellate Judge that the original of Ex.A1 was duly executed by Thirumalaisami Naidu while in a sound and disposing state of mind is perfectly correct and is confirmed.

The next question to be considered is whether the suit is barred by reason of the issue of patta in favour of the second defendant in proceedings under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act (30 of 1963). In Lakshminarayana Iyer v. Nallachiammal 1974-1-M.L.J. 424 = 87 L.W. 276, a Bench of this Court has, in construing the corresponding provisions in the Tamil Nadu Estates Land (Abolition and Conversion into Ryotwari) Act (Tamil Nadu Act 26 of 1948), held that the civil Court is not barred from going into the question of title, that the grant of patta by the Settlement authorities may at best be only one piece of evidence regarding the question of title to the land and that it cannot be said that when the Settlement Officer grants a patta to any one of the rival claimants, the jurisdiction of the civil Court to go into the question of title to the land is taken away. It was further held that the order of the Settlement Officer granting or refusing to grant patta under S. 11 of that Act is not final and that it can be questioned in any court of law under S. 56 (2) of that Act. In Sornathammal v. Ramachandra 1975 T.L.N.J. 151 Mohan, J. has held that the character of the property alone is decided while the patta is issued either in favour of the land-holder or the ryot but this is far from saying that even inter se disputes between the landholder and the ryot could be adjudicated upon by the Tribunals and though the decision reported in Lakshminarayana Iyer v. Nallachiammal 1974-1-M.L.J. 424 = 87 L.W. 276 , arose under Tamil Nadu Act 26 of 1948, the principle of that case is applicable to all cases of abolition of zamindari or inamdari tenure and converting them into ryotwari. Therefore, following the decisions referred to above, I find that the civil court has jurisdiction to decide the question of title in the dispute between the plaintiff and second defendant. The Settlement Officer could certainly not have decided the points in dispute between the parties to this suit. He was not competent to go into the question of the genuineness of the Will and give a finding as to whether or not it was executed by Thirumalaiswami Naidu while in a sound disposing state of mind. These facts can be considered and adjudicated upon only by the civil Court. Hence I answer the question of law raised in the second appeal against the appellant and find that the civil court and the Civil Court alone has got jurisdiction to decide the dispute inter se between the parties who are rival claimants to the suit properties. Hence the second appeal is dismissed with costs.