Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 1920 (MAD)

Ramalinga Reddiar & Others v. Balarama Reddiar

2008-06-20

R.BANUMATHI

body2008
Judgment :- This second appeal arises out of the Judgment of the lower Appellate Court decreeing the plaintiffs suit for declaration and Permanent Injunction and thereby reversing the Judgment of the lower Court. Unsuccessful Defendants are the appellants. For convenience, parties are referred as per their array in the suit. 2. Plaintiff is the son of one Kesava Reddiar through his second wife Thayarammal. Second Defendant is the wife of Sami Reddiar, who is son of Kesava Reddiar, through his first wife Saradhambal. Third Defendant is the son of the second Defendant. Case of plaintiff is that the suit property originally belonged to his mother Thayarammal and the said Thayarammal has settled the properties in favour of her sister Visalakshi and her husband Ranga Reddiar on 07.02.1944 under Ex.A-2 - Settlement Deed. Under the Settlement Deed, only a life estate was conferred upon the settlees and after the death of settlees, their heirs are to get the properties absolutely and in the absence of any heir, the property should be reverted back to the heirs of the settlor, viz., the plaintiff and his sisters, who are the legal heirs of Tharammal. It is the further case of plaintiff that the settlees died subsequently without any issues and as per the recitals in the Settlement Deed and the property devolved upon the plaintiff and his sisters and they have been in possession and enjoyment of the suit property as reversionary. Patta for the suit property stands in the name of plaintiff and the patta number is 216 and the plaintiff is paying kist for the suit property. Alleging that the first plaintiff attempted to trespass into the suit property, plaintiff has filed the suit for declaration of his title to the suit property – S.No.133/9 0.46 acres and for Permanent Injunction restraining the Defendant from interfering with plaintiffs possession and enjoyment of the suit property. 3. Resisting the suit, the first Defendant had filed Written Statement contending that the first Defendant had purchased the suit property from Defendants 2 to 3 for valid consideration of Rs.12,500/- and is in enjoyment of the suit property by paying kist payable thereto. 4. The third Defendant has filed elaborate Written Statement contending that Thayarammal had no right to settle the properties in favour of her sister. 4. The third Defendant has filed elaborate Written Statement contending that Thayarammal had no right to settle the properties in favour of her sister. In the Written Statement filed by the third Defendant, it was interalia averred as follows: - As guardian of Sami Reddiar, Thayarammal purchased S.No.152/2, 152/6 and 175/3 under Sale Deed dated 26. 1933. There was also properties settled in favour of Saradhambal. Kesava Reddiar, by way of Settlement Deed, settled the property in S.No.62/C – 0.15 acre in favour of Saradhambal. In the oral partition effected in the family in 1953, the properties obtained by way of Settlement Deed, properties obtained by Sale Deed and the suit properties were pooled together and partition was effected. In the said partition, plaintiff was allotted properties in S.Nos.152/6 and 175/3 and plaintiff was in enjoyment of the same. Later plaintiff sold S.No.175/3 to one Pooraniammal under Sale Deed dated 16.09.1992 and S.No.152/6 – 36 cents to Nataraja Achari under the Sale Deed dated 19.05.1981.The alleged Settlement Deed dated 07.02.1944 was never acted upon. The plaintiff had no manner of right or title in the suit property and in S.Nos. 133/8 and 133/9. Plaintiff had exchanged the property in S.No.133/8 with the first Defendant, which he got in the earlier partition. Since the plaintiff has no right or title and no in possession of the suit property, plaintiff is not entitled to the relief sought for. 5. On the above pleadings in the trial Court, four issues were framed. Upon consideration of oral and documentary evidence, the trial Court held that Ex.A-2 Settlement Deed was not acted upon and there is no document to show that the plaintiff had enjoyed the suit property. The trial Court arrived at the conclusion that the plaintiff failed to establish that he had been in possession of the suit property and the trial Court dismissed the plaintiff suit. 6. In the appeal preferred by the plaintiff, lower Appellate Court took the view that Ex.A-2 - Settlement Deed dated 07.02.1944 is more than thirty years, and therefore, the presumption of execution of document is to be raised under Section 90 of Indian Evidence Act, [I.E. Act, for short]. The lower Appellate Court further held that the presumption of an ancient document under Sec.90 I.E. Act could be raised even for registration copy also. The lower Appellate Court further held that the presumption of an ancient document under Sec.90 I.E. Act could be raised even for registration copy also. The lower Appellate Court further held that since Ranga Reddiar and Visalakshi Ammal had no issues, the property devolved upon the plaintiff and his sisters as reversionary. Referring to the Exchange Deed Ex.B-2, the lower Appellate Court held that plaintiff could not have executed Ex.B-2 Exchange Deed unless the Settlement Deed [Ex.A-2] had come into operation and on those findings, the lower Appellate Court reversed the findings of the trial Court and granted declaration and Permanent Injunction in favour of the plaintiff. 7. Challenging the findings of the lower Appellate Court, the learned Counsel for the appellant contended that when the properties given to Saradhambal - properties purchased in the name of Sami Reddiar and Thayarammal, were pooled together and partition was effected and while so, the lower Appellate Court erred in brushing aside the oral and other documents, evidencing such pooling and partition. Placing reliance upon 2001 (1) CTC 534 [Arulmighu Vedaranyeswara Swami Devasthanam by its Executive Officer v. Haridas and two others], the learned Counsel submitted that presumption under Sec.90 would not apply to the registration copy of the document. The main plank of argument is that no evidence was adduced showing that Ex.A-2 Settlement Deed was executed by Thayarmmal. The learned Counsel further submitted that when the first Defendant had purchased the suit property, the discretionary relief of declaration and Permanent Injunction cannot be granted in favour of the plaintiff. 8. Reiterating the findings of the lower Appellate Court, the learned Counsel for the respondent/plaintiff submitted that the S.Nos.133/8 and 133/9 were not at all included in the family properties and after the death of settlees – Ranga Reddiar and Visalakshi Ammal, property devolved upon the plaintiff and his sisters and the lower Appellate Court in proper appreciation of the same, upheld the plaintiffs title. The learned Counsel further submitted that the lower Appellate Court rightly presumed Ex.A-2 - Settlement Deed as genuine, as the Settlement Deed is thirty years old and there is no substantial question of law is involved warranting interference with the well considered Judgment of the lower Appellate Court. 9. Relationship of the parties is not in dispute. From the evidence and findings of the Courts below, the following facts are discernible. 9. Relationship of the parties is not in dispute. From the evidence and findings of the Courts below, the following facts are discernible. Plaintiffs mother Thayarammal who is the second wife of Kesava Reddiar had purchased S.No.133/8 – 0.30 acres - Suit S.No.133/9 – 0.46 acres under Ex.A-1 Sale Deed dated 15.02.1928. Plaintiffs mother Thayarammal had settled both Survey numbers in favour of her sister Visalakshi and her husband Ranga Reddiar under Ex.A-2 - Settlement Deed dated 07.02.1944. As per the recitals under the Settlement Deed, after the death of settlees, properties are to devolve upon their legal heirs and in the absence of heirs, settled properties are to revert back to the legal heirs of the settlor. According to the plaintiff, as the settlees died issueless, being the legal heirs of settlor Thayarammal, plaintiff and his sister became entitled to both Survey numbers as reversionary. 10. The first plea taken by the Defendant is that Ex.A-2 Settlement Deed was not acted upon and that the alleged settlees Visalakshi and Kesava Reddiar never enjoyed the suit property and therefore, no weight could be attached to Ex.A-2 Settlement Deed and the recitals thereon. The main thrust of argument of the appellants/Defendants is that though the Settlement Deed is more than thirty years, Ex.A-2 being a registered copy, the presumption under Section of the 90 I.E. Act cannot be extended to Ex.A-2. On the above plea of Defendants, second appeal was admitted on the following substantial questions of law :- "1. Whether Sec.90 of the Indian Evidence Act applies to the certified copy? 2. Whether the admission of Ex.A-2 contrary to provisions of Sec.68 of the Indian Evidence Act is right?" 11. The substantial questions of law mainly revolve upon the questions whether the presumption under Section 90 I.E.Act could be raised for a certified copy. As per Sec.90 of the Act, where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. 12. 12. For application of Section 90 of the Act, there are two prerequisites :- Firstly, that the document is thirty years old and, Secondly, that the same is produced from proper custody. If the above two conditions are fulfilled, then the Court is required to consider whether it is a fit case or not for raising presumption of due execution and attestation of a document. 13. The principle underlying Sec.90 is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested. The reason for incorporating Sec.90 is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove handwriting, signature and execution and attestation of ancient documents after lapse of many years. 14. The substantial questions of law falling for consideration is that Ex.A-2 being a certified copy whether it is a fit case for raising presumption under Section 90 I.E.Act. Execution and contents of last document cannot be proved merely by production of a copy, which itself is more than thirty years old; but the certified copy considered with other evidence may give raise to a presumption as to the genuineness of the original. 15. In Sri Lakhi Barua and ors. v. Padma Kanta Kalita [ AIR 1996 SC 1253 ], the Supreme Court has held as under : - "Sec.90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Sec.90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Sec.90. There is, however, no manner of Court that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons". 16. Stating that original Settlement Deed has been lost, plaintiff produced Ex.A-2 certified copy. When original document was lost, registration copy is admissible as secondary evidence under Sec.65 I.E.Act. There is, however, no manner of Court that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons". 16. Stating that original Settlement Deed has been lost, plaintiff produced Ex.A-2 certified copy. When original document was lost, registration copy is admissible as secondary evidence under Sec.65 I.E.Act. On the plaintiff side, when foundation was laid for admission of secondary evidence, in my considered view, the lower Appellate Court was right in raising the presumption under Section 90 I.E.Act as to the execution of Ex.A-2 – certified copy of the Settlement Deed. 17. As noted earlier, the contents of such an ancient document cannot be proved merely by production of a copy which itself is over thirty years old. But the copy considered with the other evidence may give raise to a presumption as to the genuineness of execution. The facts and circumstances of the case and the subsequent conduct of the parties would clearly show that Ex.A-2 Settlement Deed was acted upon. As noted earlier, under Ex.A-2 – Settlement Deed, Thayarammal had settled two items of properties S.Nos.133/8 and 133/9 and both items reverted back to the plaintiff and his sisters after the death of the settlees. Plaintiff had entered into an exchange deed with the first Defendant under Ex.B-2 - Exchange Deed dated 19.03.1991 and under the said Exchange Deed, plaintiff had exchanged S.No.133/8 with S.No.175/2B. In exchange of S.No.133/8, plaintiff got S.No.175/2b. In respect of S.No.175/2B, patta was also issued to the plaintiff under Ex.A-3 in patta no.216. Plaintiff also paid kist for the same [Exs.A-4 and A-5]. As rightly held by the lower Appellate Court, unless Ex.A-2 Settlement Deed was acted upon, the plaintiff could not have entered into exchange with the first Defendant exchanging S.No.133/8. 18. The defence plea of the Defendants is that the properties under Sale Deed dated 26. 1933 and the properties settled in favour of Saradhambal under Ex.B-1 Settlement Deed dated 04.09.1918 and the properties covered under Ex.A-2 Settlement Deed were pooled together and early partition was effected and in the said early partition, plaintiff was allotted S.No.175/3 – 0.60 acres and S.No.152/6 – 0.30. No doubt, the plaintiff had sold S.No.175/3, said to have been allotted to him in the early partition, to one Pooraniammal under Ex.B-1 Sale Deed dated 16.09.1992. Plaintiff had also sold S.No.152/6 to Nataraja Achari by Sale Deed dated 19.05.1981. No doubt, the plaintiff had sold S.No.175/3, said to have been allotted to him in the early partition, to one Pooraniammal under Ex.B-1 Sale Deed dated 16.09.1992. Plaintiff had also sold S.No.152/6 to Nataraja Achari by Sale Deed dated 19.05.1981. Plaintiff sold the properties allotted to him in the early partition. Defence plea of the Defendants that the properties purchased in the name of Thayarammal in S.No.133/8 and 133/9 were put into a common pool for effecting partition amongst the family members is not supported by any evidence. 19. Plaintiff had exchanged S.No.133/8 with the first Defendant for agricultural convenience and cultivation. The learned Counsel for the Appellants Defendants contended that if really the plaintiff had such inconvenience in cultivating S.No.133/8, he would have had the same inconvenience in cultivating the suit S.No.133/9 also, and non-inclusion of S.No.133/9 under Ex.B-2 Exchange Deed would show that the plaintiff was never in possession of S.No.133/9. This contention does not merit acceptance. The plaintiff and the first Defendant might have exchanged the items of property with reference to the value of property. Because of non-inclusion of S.No.133/9 under Ex.B-2 Exchange Deed, nothing adverse could be drawn against the plaintiff. 20. The conclusion of the trial Court that Ex.A-2 Settlement Deed was not acted upon and declining to raise presumption under Section 90 I.E.Act in respect of Ex.A-2 Certified copy is erroneous. Such findings and approach of the trial Court borders on perversity and was rightly reversed by the lower Appellate Court. The findings of the lower Appellate Court is based on the materials and there is no ground for interference with the Judgment of the lower Appellate Court. 21. The Judgment and Decree made in A.S.No.259/1994 dated 30.09.1996 on the file of the Addl. District Judge, Villupuram District, (reversing the Judgment and Decree dated 26. 1994 made in O.S.No.1360/1992 on the file of Addl. District Munsif, Villupuram), is confirmed and this second appeal is dismissed. There is no order as to costs.