RANGABASHYAM NAIDU Vs. V PREMKUMARI

JUDGEMENT

(1.) 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, Thirumalaiswami 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 Exhibit A-1, 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 Exhibit 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 Exhibit A-1 and P.W. 5 who is the scribe of the original of Exhibit A-1 and relying on their evidence came to the conclusion that the original of Exhibit 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 Exhibit A-1. As Thirumalaiswami 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 Exhibit 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 Exhibit 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 Exhibit A-1.

(2.) THE 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 Exhibits B-3, B-4 and B-5 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 Exhibit A-1 has not been explained away. THEre can be no doubt that the original of Exhibit A-1 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 Exhibit A-1 were obviously with the second defendant. As the second defendant does not derive any benefit under the original of Exhibit A-1, he has suppressed the same. This conclusion is inevitable from the aforesaid circumstances.

(3.) 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 (XXX of 1963). In T. M. Lakshminarayana Ayyar and others v. Nallachi Ammal and others 1 , a Bench of this Court has, in construing the corresponding provisions in the Tamil Nadu Estates Land (Abolition and Conversion into Ryotwari) Act (XXVI 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 he 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 the 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 section 11 of that Act is not final and that it can be questioned in any Court of law under section 56 (2) of that Act.