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2003 DIGILAW 393 (MAD)

A. S. Rathinam v. A. S. Ponnammal & Others

2003-03-12

N.V.BALASUBRAMANIAN, R.JAYASIMHA BABU

body2003
Judgment :- R.Jayasimha Babu, J. The plaintiff is the appellant before us, and her three sisters are defendants in the suit brought by her for partition of the properties of one Chinnasamy Kudumban who passed away in the year 1982. The properties mentioned in several schedules to the plaint were claimed by the plaintiff to be belonging to the joint family of the said Chinnasamy Kudumban, some of them being ancestral. Defendants 1 and 2 in their written statement denied that assertion except as regards items 3 and 4 in A schedule and item 12 in B schedule which stood in the name of the father and claimed that all other properties belonging to them had been acquired by them through their husbands. 2. The plaintiff did not produce any documentary evidence, nor did she set out the manner in which the deceased Kudumban had acquired the properties. The only material before the Court was the deposition of the plaintiff which did not throw any further light regarding the title of the said Kudumban to the properties. The documentary evidence produced by the defendants are in the form of Exs.B.1 to 7. That evidence was supplemented by the deposition of the defendants. 3. The documentary evidence produced by the defendants were revenue records in relation to all those properties which show that items 3 and 4 of A schedule - which are houses - had stood in the name of the mother and father of the plaintiff and defendants 1 to 3, and also showed that item 12 in B schedule which is a land measuring 4.68 acres was shown in the revenue records as being in the ownership of the father. The records produced by the defendants in relation to all other properties did not show the name of either the father or the mother of the plaintiff and defendants 1 to 3. Some of them showed the names of either defendant 1 or defendant 2 or the names of the two together. Records produced in relation to other properties showed the names of persons who are strangers to the family. Some of the revenue records pertain to a period which was anterior to the year in which the father Chinnasamy Kudumban died. 4. Records produced in relation to other properties showed the names of persons who are strangers to the family. Some of the revenue records pertain to a period which was anterior to the year in which the father Chinnasamy Kudumban died. 4. The trial Court reasoned that since the defendants had not produced the document of title of the husband, it has to be assumed that all the properties were, in fact, the properties of Chinnasamy Kudumban, the father and therefore the plaintiff was entitled to 1/4th share. 5. On appeal, the learned single Judge has confined the decree only to items 3 and 4 of A schedule and item 12 of B schedule. As in relation to all those properties the documents produced by the defendants showed the name of the father and the document in relation to all other properties produced did not show the name of Chinnasamy Kudumban as the owner. 6. The sole argument advanced by the learned counsel for the appellant is that regardless of the burden of proof, it was incumbent on the party having custody of the best evidence to produce the same before the Court and the defendants not having produced the title deeds in relation to other properties, an adverse inference should be drawn and the Court must proceed to hold that the properties, in fact, belonged to Chinnasamy. 7. Learned counsel in this context invited our attention to the decision of the Supreme Court in the case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif, AIR 1968 SC 1413 , wherein in the context of the conduct of the defendant who had the custody of the account books but, failed to produce the same, the apex Court held that it was permissible to draw an adverse inference against him, eventhough he had not been called upon by the plaintiffs to produce those account books, as it was found that those account books were the best evidence and the defendant therein admittedly had custody of the same. 8. 8. In this case, the plaintiff sought a share in the immovable properties, the title to which was a matter of public records maintained in the office of the Sub Registrar who is required to maintain the record of all transactions relating to the immovable properties required to be registered by law, as also in the revenue records which are maintained by public officials who are required to do so by law, and who are also required to make available to those interested, the certified extracts of those records. The plaintiff who asserted that the properties had belonged to the father did not produce any record though it was possible also for her to secure the same from the office of the Sub Registrar and from the Revenue Offices to establish her case that the properties had belonged to their father. 9. The plaintiff cannot, in the circumstances, claim that despite evidence not having been produced by her, it should be held that the properties belonged to the father, solely on the ground that such properties had been listed in the schedule to the plaint and it was the case of the defendants, her sisters that the bulk of the properties were theirs and not that of their father. 10. The general principle enunciated in the decision of the apex Court on which counsel placed reliance is always required to be applied in relation to the facts of the given case, having regard to the context in which the plea of non production of the best evidence is raised. When the evidence required to be produced is accessible to the plaintiff who seeks to have adverse inference drawn by reason of the non production of that evidence by the defendants, it is the duty of such plaintiff to produce the evidence and the failure to do so cannot be got over by inviting the Court to draw adverse inference from the conduct of the defendants who had produced some evidence, but not all the evidence in their possession with regard to the properties mentioned in the plaint schedule. In the context of the facts of this case, it cannot be said that there was a duty cast on the defendants to produce the title deeds even when the title deeds did not show the ownership of their father. In the context of the facts of this case, it cannot be said that there was a duty cast on the defendants to produce the title deeds even when the title deeds did not show the ownership of their father. The properties which belonged to them individually cannot become the subject matter of partition at the instance of their sister, and the mere fact that she chose to include them in the plaint does not cast a burden on the defendants. 11. Moreover, in this case, the revenue extracts produced by the defendants in relation to the properties other than those in which a share has been given to the plaintiff clearly show that those properties stood in the name of the defendants or their husbands even during the lifetime of the father. Had the properties, in fact, belonged to the father one would have expected the father's name to be shown. 12. The plaintiff has clearly failed to prove the case that she had pleaded. Mere assertion that those properties had belonged to her father, will not suffice unless such ownership had been admitted by the defendants. When the matter has been put in issue, it was clearly for the plaintiff to establish by producing acceptable documentary evidence that the properties did belong to the father and that on his demise, as one of the heirs, the plaintiff is entitled to a share therein. 13. We do not find any error in the judgment under appeal. The appeal is dismissed.