Thayammal vs Sivaraman

Sankaran, J.—This is an appeal preferred by the Plaintiff in the case, against the lower Court''s order disallowing her prayer to appoint a receiver to properly administer the cardamom estate involved in the suit pending final decision of the question of the genuineness of a Will dated 30-7-1951 under which the Plaintiff claims the right of immediate possession and enjoyment of the property. The cardamom estate in question which is a little over 108 acres in extent, and situated in the Devicolam Taluk, forms part of the assets left by one P.T. Dever of Periakulam in Madura District. His other assets are situated beyond the limits of the Travancore-Cochin State and within the District of Madura. The said P.T. Dever was an Advocate practising at Periakulam. He was ailing for some time and ultimately he died on 5-9-1951, leaving no issue, male or female. The Plaintiff and Defendant 2 are his two childless widows, the Plaintiff being the senior of the two. Defendant 1 is the nephew of Dever, the father of Defendant 1 being a cousin of Dever. There is yet Anr. near relation to Dever and he is one Vativel, brother of Dever.

The Plaintiff''s case is that her husband had executed four Wills in all, one superseding Anr. ; while, according to Defendant 1, Dever had executed only three Wills. The three Wills, the execution of which is not in dispute, are those which were executed and got registered on 3-7-1945, .9-6-1947 and 7-6-1951. The disputed Will is the one stated to have been executed by Dever on 30-7-1951, just a few weeks prior to his death. It was not registered during his lifetime. A few days after Dever''s death, the Plaintiff produced this Will before the Sub-Registrar of Periakulam and applied to have it registered. Notice of that application was given1 to the present Defendants 1 and 2 and the other near relation of the deceased testator. Defendant 1 alone appeared in pursuance of such notice and contested the genuineness of the Will. He impeached it as a false and fabricated document.

The Sub-Registrar conducted an elaborate enquiry into the question of the genuineness of the Will and examined several witnesses, inclusive of the four attestors to the disputed document. After considering the evidence thus recorded at the enquiry in the light of the outstanding circumstances and probabilities which were urged before him, he came to the conclusion that it is a genuine document and is the last Will executed by Dever in supersession of all the previous Wills and accordingly passed an order directing the registration of the document. Exhibit B is copy of the order passed by the Sub-Registrar on 8-1-1952. Exhibit A is copy of the Will registered as per that order.

A few days prior to the conclusion of the enquiry before the Sub-Registrar, the present Defendant 1 instituted a suit, O.S. No. 5 of 1952, before the Sub-Court at Madura, against the two widows of the deceased testator, praying for a declaration that the Will dated 30-7- 1951 propounded by the present Plaintiff was not genuine and that it does not in any way affect his rights under the Will dated 7-6-1951. That suit was filed on 3-1-1952. Exhibit II is copy of the plaint in that suit. In that plaint he has definitely asserted that on 25-9-1951 he has obtained possession of the cardamom estate in question except to the extent of the portion set apart to Defendant 2, the junior widow of deceased Dever, under the Will dated 7-6-1951. According of to Defendant 1, the portion that was thus set apart to Defendant 2 is only 20 acres in extent; while Ex. I which is copy of the Will dated 7-6-1951 shows that the extent of the cardamom estate set apart, to Defendant 2 is over 34 acres.

On the question of possession of the estate, the case set up by Defendant 1 is that Doraraj Padiyan, brother of Defendant 2, was in management of the estate and that Defendant 2 arranged through her brother Doraraj Padiyan to hand over possession of the estate excluding the 20 acres belonging to her, to Defendant 1 and that accordingly Defendant 2''s brother through his authorised agent handed over possession of the property to Defendant 1 on 25-9-1951 and also gave a receipt to Defendant 1 as evidence of handing over possession of the property. This version is challenged by the Plaintiff as false. According to her, Defendant 1 through his father Kumara Velu has wrongfully and forcibly taken possession of the estate with the object of defeating her just and legitimate rights under the Will dated 30-7-1951.

Soon alter getting the will dated 30-7-1951 registered, the present suit was instituted by the Plaintiff on 27-2-1952 for a declaration that it is the last Will and testament of deceased P.T. Dever and that under it herself and Defendant 2, who are two widows of the deceased Dever, are entitled to enjoy the suit properties during their lifetime. She has also prayed for a decree for the recovery of the properties from Defendant 1 with past and future mesne profits and for other incidental reliefs. Along with the plaint in the suit, she filed an application for the appointment of a receiver to take possession of the estate and for properly administering the same pending final disposal of the suit.

Defendant 1 opposed that application. After a consideration of all the contentions raised by the parties, the lower Court recorded a finding that the original of Ex. A is a forged document and that, therefore, the Plaintiff is not entitled to have a receiver appointed to administer the plaint properties. At the same time, the lower Court directed Defendant 1 to give security for the mesne profits of the properties. The correctness of that order is challenged by the Plaintiff-Appellant. Defendant-Respondent 1 has filed an objection memorandum against the direction made by the lower Court that Defendant 1 should give security for the mesne profits of the properties.

In the nature of the dispute between the contesting parties, the main question for decision in the suit is whether the original of Ex. A is a genuine document representing the lasts will and testament of deceased Dever executed by him in supersession of his previous Wills. That question can be properly decided only after the parties have adduced all their evidence and after a due consideration of all such evidence in the light of all the attendant circumstances and probabilities. No doubt in dealing with the application for the appointment of a receiver for the suit properties, the Court has to consider the ''bona fides'' of the claim put forward by the Plaintiff and also the question whether there are circumstances made out to justify the appointment of a receiver. At the same time, the Court has to be very guarded in committing itself one way or the other on the main and the crucial question involved in the suit. Any commitment likely to leave impression of the main issue having been prejudged should be avoided.

We are laying particular stress on this aspect of the matter, because we find from the lower Court''s order that it has already come to a definite conclusion that the original of Ex. A is a forged and fabricated document. The lower Court is seen to have entered into a full discussion of the several circumstances urged in support of as well as against the genuineness of the document and has chosen to accept the circumstances urged against its genuineness and to reject those urged in support of its genuineness. When the whole evidence has been recorded the lower Court has to approach the question with an open mind and without in any way being influenced by the impressions already formed when it had not the benefit of such evidence before it.

On behalf of the parties these circumstances have again been urged in this Court also. By way of illustration we may mention a few of the circumstances strenuously urged on behalf of Defendant-Respondent 1 in support of his contention that the Will propounded by the Plaintiff is a forged document. The original of Ex. A is seen to be written on a single sheet of paper and it is in the handwriting of one Kamachi Naidu who was the clerk of P.T. Dever. At the foot of the document the address of the testator is put down as "Advocate, B.A., B.L." The letters "B.A., B.L." seem to have been put down in the place where the expression "for Plaintiff" had been written. The suggestion is that a blank paper signed by P.T. Dever as Advocate for Plaintiff and left with the clerk, might have been made use of for fabricating the Will, after procuring the services of the clerk who was only a low paid employee.

Then again it is stated that the space between the lines in the body of the Will would show that an attempt was made to compress the whole matter and bring it within the space available above the signature. It is then pointed out that in punctuation and spelling there are very many mistakes in the document and on the basis of such mistakes it is argued that if the document was prepared as per a draft given by Dever himself and if the copy had been perused by him as alleged by the Plaintiff, Dever would not have put his signature to such a document containing wrong expressions and several mistakes in punctuatioas and spelling. On the strength of a series of letters Exs. 8 to 17 written by deceased Dever both before and after the date of the disputed document, it is argued that lie could write a steady hand and that, therefore, it is unlikely that he would have utilised the services of his clerk to prepare the Will in such a shabby manner as is evidenced by the Will in question.

Another argument advanced is that if he really wanted to execute a Will like that, he would have prepared it in his own handwriting and would have got it registered on the same date as was done in the case of the three prior Wills. The explanation offered by the scribe of the document in respect of some of those apparent infirmities is said to be unsatisfactory and unacceptable. Even though the copy of the deposition given by him before the Sub-Registrar was produced in the present enquiry, it has to be remembered that he has not been examined in this case. It may also be stated that every one of the circumstances urged on behalf of Defendant 1 is met by the explanations offered on behalf of the Plaintiff. In addition to such explanations, other grounds are urged on behalf of the Plaintiff to show that the will in question was really executed by Dever,

It is pointed out that when P.T. Dever was seriously ill, the Plaintiff who was for sometime living away from him, went over to him and after ascertaining the nature of his illness as well as the nature of the disposition of his properties as per the Will dated 7-6-1951 under which the junior widow was specially treated by conferring on her an absolute estate in respect of 34 acres of the plaint properties, the Plaintiff begged of him to treat his two wives equally and that it was such an appeal that induced him to execute the disputed document as his last will. In answer to Defendant 1''s allegations that the Will was fabricated at the instance of Vativel, brother of the Plaintiff, it is pointed out that he derives absolutely no benefit under the disputed Will. Then again it is pointed out that under this document the reversionary right in respect of all the estate of P.T. Dever is vested solely in Defendant 1 and that only a life estate is given to the two widows.

Over and above these and other circumstances relied on by the Plaintiff, the direct evidence regarding the execution of the document, which was given before the Sub-Registrar, is also relied on as proving the genuineness of the Will. We do not think that it will be proper and safe to enter into a discussion as to the acceptability or otherwise of the circumstances relied on by the Plaintiff or those relied on by Defendant 1. Any such discussion at this stage is likely to prejudice the trial and decision of the suit. These circumstances may have a bearing on the ultimate decision regarding the genuineness or otherwise of the Will. The direct evidence that has to be adduced in the case will have a greater bearing on that question. Such being the case we refrain from expressing any opinion on the merits of the circumstances urged on behalf of both sides.

For the purpose of the present appeal we confine our attention to certain other undisputed facts and circumstances. There has already been an enquiry followed by a decision on the question of the genuineness of the original of Ex. A. Defendant 1 was also a party to such enquiry. The order Ex. B shows that the enquiry was a thorough one. Even though the decision arrived at by the Sub-Registrar as a result of such enquiry is not binding on the Court, that decision has to be given its due weight unless and until the Court arrives at a different conclusion after an independent enquiry of its own. The order of the Sub-Registrar cannot now be totally ignored. It is seen from the order Ex. B that a lady Doctor who was attending on deceased Dever for some time even subsequent to the date of the disputed document, when he was staging at Periakulam, was examined as a witness before the Sub-Registrar and that she has deposed that Dever had mentioned to her that he had executed aj fourth will as his last testament.

Such a statement is alleged to have been made by Dever to his own brother Vativel also. This Vativel too is seen to have been examined before the Sub-Registrar. No doubt the evidence of these witnesses has not been recorded in the present suit. All the same Ex. B shows that they had stated before the Sub-Registrar that Dever had admitted that he had executed a fourth Will. Another outstanding feature of the disputed Will as well as the undisputed Wills is that the legatees in all these four documents are the same persons viz., the testator''s two wives and his nephew Defendant 1. The important change noticed in the disputed will as compared with the Will dated 7-6-1951 is that the absolute estate conferred on the junior widow in respect of 34 acres of cardamom land was taken away and she too was given a life estate over the entire estate of Dever just as is conferred on the senior widow, the Plaintiff. Similarly the absolute estate conferred on the nephew has been made subject to the life estate in favour of these two widows.

The question as to who should immediately succeed to the estate left by Dever depends on the question whether the original of Ex. A is really the last Will and testament of Dever. Until that matter is decided one way or the other, no one of the legatees can assert a right to the present possession of the properties. It was Defendant X who first went to Court for a declaration that the Will is not genuine and that it does not affect his right under the preceding Will. That suit (O.S. No. 5 of 1952 on the file of the Madura Sub-Court) is still pending. The Plaintiff in turn has filed the present suit for a declaration that the will propounded by her is genuine. The question has yet to be investigated and decided. It may also be mentioned that it was just on the eve of the production of the disputed document for registration that Defendant 1''s father rushed to take possession of the properties.

Even though Defendant 1 would contend that the junior widow through her brother surrendered to him possession of the plaint properties except to the extent of 20 acres, it is significant to note that Defendant 2 in her objection petition does not concede that fact, but maintains that she is still in possession of the 34 acres of land set apart to her under the Will dated 7-6- 1951. She has not chosen to question the .genuineness of the will propounded by the Plaintiff, but has only stated that she is not aware of the execution of such a document. Even when the enquiry was going on before the Sub-Registrar, Defendant 2 did not choose to contest the Plaintiff''s claim to have the Will registered as a genuine document.

Under these circumstances the possession claimed by Defendant 1 cannot be said to be lawful possession, unless and until it is established that the Will propounded by the Plaintiff is not genuine and the rights of the parties are as provided in the earlier will dated 7-6-1951 and that he has obtained possession of the properties as a matter of right and in a peaceful manner. These facts and circumstances are sufficient to attract the provisions contained in Section 247, Indian Succession Act. That section lays down that

pending any suit touching the validity of the Will of a deceased person or for obtaining ...the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general, administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act binder its direction.

The position of such an administrator is similar to that of a receiver appointed by the Court. The section does not make it obligatory that in every suit touching the validity of the Will of the deceased person the Court should appoint an administrator or receiver to manage the estate of the deceased person pending final decision of the question of genuineness of the Will. But the section gives a wide discretion to the Court in that matter. This discretion has to be exercised in a judicial manner after a due consideration of the facts relating to the particular case. Where the Court is satisfied that neither of the contesting parties can be said to be in lawful and undisputed possession of the property and that there is a ''bona fide'' dispute as to the right to the present possession of the property, it has to be taken that a case of necessity has been made out for the exercise of the Court''s discretion in favour of the appointment of a receiver or administrator.

This is the view taken in - Pandurang Shamrao Laud Vs. Dwarkadas Kalliandas, wherein Section 247, Succession Act came up for consideration. From the circumstances of the present case as already adverted to, it can be seen that the above-mentioned conditions are amply satisfied so as to justify the appointment of a receiver. There is a ''bona fide'' dispute as to the genuineness of the Will dated 30-7-1951 and until that matter is settled neither party can be said to have established a right to the present possession of the properties. The possession claimed by Defendant 1 is challenged as wrongful. The mere fact that one party has hastened to assert his claim for possession of the properties will not by itself be a reason to uphold such possession and give him an undue advantage over the opposite party, pending decision on the question of the right to the possession of the properties. On a consideration of all the facts and circumstances of the case, we are satisfied that it is just and proper to keep the properties under the direct control of the Court pending final decision of the question as to the genuineness of the will dated 30-7- 1951 and that the necessity for the appointment of a receiver has been made out.

The result is that this appeal is allowed with costs. The lower Court is directed to forthwith appoint a proper person as receiver to take possession of the plaint properties and for maintaining them properly so as to collect and preserve the income, pending final decision of the suit. Adequate safeguards will also be made for the proper administration of the estate and the necessary directions will be issued for maintaining regular and proper accounts and for depositing in Court the collections made by the receiver. The remuneration to be paid to the receiver will also be fixed by the lower Court. The records will be sent to the lower Court at once, the original of Ex. A being separately sent in a sealed cover and by registered Post.