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2008 DIGILAW 2239 (MAD)

Chinnapillai Ammal v. Arumuga Gounder & Others

2008-07-04

R.BANUMATHI

body2008
Judgment This second appeal is preferred against the Judgment and Decree in A.S.No.99/1989, reversing the Judgment in O.S.No.2143/1979 dismissing the plaintiffs suit for declaration and Permanent Injunction in respect of A Schedule Property and partition in respect of B Schedule Property. Unfortunate mother of one Pichaikaran whose whereabouts are allegedly not known, is the appellant. 2. Appellants son Pichaikaran is presumably dead since his whereabouts are not known for quite a long time. The parties are related as under:- Irusa Gounder =Marimuthammal 3. Case of the plaintiff is that suit property and other properties belonged to one Irusa Gounder. Out of lawful wedlock, Pichaikaran was born to Annamalai and appellant plaintiff. After death of Annamalai, the plaintiff married one Adimoola Gounder. In the family partition effected under Ex.A-1 – partition deed, dated 26.09.1974, items 2 and 3 of suit property was allotted to the appellant Pichaikaran, who was then minor. B Schedule Property was also allotted to Irusa Gounder. Plaintiff has purchased A Schedule Property from Defendants 1 and 2 under Ex.A-4 Sale Deed dated 10.02.1978. Defendants are said to have created fake Sale Deed in favour of the fifth Defendant dated 21.01.1978. Alleging that on the strength of the said Sale Deed Defendants are attempting to trespass into the suit property, plaintiff has filed the suit for declaration of Permanent Injunction in respect of A Schedule Property. According to the plaintiff, she is also entitled to A Schedule Property by virtue of being Class I Heir of her son Pichaikaran. It is the further case of plaintiff that B Schedule Property was allotted to Irusa Gounder. As Class I Heir of Pichaikaran, she is entitled to 1/5th share and the plaintiff seeks for partition and separate possession of 1/5th share in the B Schedule Property. 4. Denying that plaintiff isentitled to A Schedule Property and 1/5th share in the B Schedule Property, Defendants have filed Written Statement contending that after the death of Annamalai Gounder, plaintiff had deserted her son Pichaikaran and he was under the care and protection of Irusa Gounder. According to the Defendants, on 21.05.1964, cash of Rs.1,500/-, jewels and sheep were given to the plaintiff for her maintenance. Having married Adimoola Gounder, plaintiff is divested of her interest and she cannot claim any right as mother of Pichaikaran. According to the Defendants, on 21.05.1964, cash of Rs.1,500/-, jewels and sheep were given to the plaintiff for her maintenance. Having married Adimoola Gounder, plaintiff is divested of her interest and she cannot claim any right as mother of Pichaikaran. Defendants have further alleged that they have sold A Schedule Property to the fifth Defendant for a valid consideration and therefore, the plaintiff is not entitled to seek for declaration and Permanent Injunction in respect of A Schedule Property. 5. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, the trial Court held that for quite some time, whereabouts of Pichaikaran are not known and therefore, Pichaikaran must be presumed to be dead. Trial Court further held that after the death of Pichaikaran, being class I Heir, properties would belong to plaintiff. The trial Court further held that mother of Annamalai Gounder and other Defendants have no manner of right to execute Ex.B-2 Sale Deed in favour of 5th Defendant. Referring to the facts and circumstances of the case, the trial Court further held that Ex.B-2 Sale Deed was created to defeat the right of plaintiff under Ex.A-4 Sale Deed. 6. Being aggrieved, the Defendants have filed appeal in A.S.No.99/1989. Reversing the findings of the trial Court, Appellate Court held that the plaintiff had not satisfactorily proved that the whereabouts of Pichaikaran are not known for quite a long time. Re-appreciating oral evidence of DW-1, lower Appellate Court held that plaintiff had not adduced evidence for drawing presumption under Section 107 Indian Evidence Act. The Appellate Court further held that the Defendants and Marimuthu Ammal had sold A Schedule Property to 5th Defendant under Ex.B-2 Sale Deed dated 21.01.1978 and the plaintiff ought to have enquired about the encumbrance before getting Ex.A-4 Sale Deed dated 10.02.1978. The lower Appellate Court further held that on the basis of Ex.A-4 Sale Deed, plaintiff could not trace title to A Schedule Property. Finding that Pichaikarans presumptive death has not been established, the lower Appellate Court allowed the appeal and reversed the findings of trial Court. 7. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration:- "1. Finding that Pichaikarans presumptive death has not been established, the lower Appellate Court allowed the appeal and reversed the findings of trial Court. 7. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration:- "1. Whether the finding of the learned Subordinate Judge that the plaintiff had not proved the death of her son Pichaikaran as required under Section 107 of the Evidence Act could be sustained in view of the recitals in Ex.A-4 ? 2. Whether the finding of the learned Subordinate Judge that Pichaikaran is alive is not vitiated by a total failure to exercise the jurisdiction vested in him by not considering the materials on record and the findings of the trial Court?" 8. Challenging the findings of the lower Appellate Court, the learned Counsel for the Appellant Ms. Radha Gopalan has submitted that when trial Court had given an elaborate finding for holding that Ex.B-2 is not a valid document, without adverting to those findings, on flimsy grounds, the lower Appellate Court has set aside those findings. The learned Counsel further submitted that the lower Appellate Court totally ignored the fact that plaintiff had purchased items 2 and 3 of A Schedule Property under Ex.P-4 Sale Deed. The learned Counsel would further submit that the lower Appellate Court did not analyze that in proper perspective Ex.B-2 though dated 21. 1978, was registered only on 24.04.1978. The learned Counsel would further submit that the lower Appellate Court misread the evidence and overlooked the fact that the alleged purchaser D-5 has never gone into the witness box. 9. Countering the arguments, the learned Counsel for the respondent has submitted that after remarriage, when plaintiff had gone out of the family, plaintiff cannot claim any further interest in the family properties. Insofar as Ex.B-2 Sale Deed is concerned, the learned Counsel would submit that the Sale Deed though registered at a later point of time, it relates back to the date of execution and therefore, plaintiff cannot claim any title in A Schedule Property. The learned Counsel further submitted that plaintiff had not discharged the burden cast upon her to prove that whereabouts of Pichaikaran were not known for a long time. The learned Counsel further argued that the plaintiff having been out of possession from the suit properties, cannot seek for the relief of declaration of Permanent Injunction and partition. The learned Counsel further submitted that plaintiff had not discharged the burden cast upon her to prove that whereabouts of Pichaikaran were not known for a long time. The learned Counsel further argued that the plaintiff having been out of possession from the suit properties, cannot seek for the relief of declaration of Permanent Injunction and partition. .10. It is the common ground that plaintiff married Annamalai Gounder, who died in 1964. Out of lawful wedlock, Pichaikaran was born. It is also not in dispute that after the death of Annamalai, plaintiff remarried one Adimoola Gounder. Plaintiff claims that even after remarriage, her son Pichaikaran was with her. Per contra, Defendants claim that after remarriage of the plaintiff, Irusa Gounder was taking care of Pichaikaran and Pichaikaran left the house. Plaintiff has alleged that the Defendants have taken away Pichaikaran from her custody and whereabouts of Pichaikaran not known fro quite some time. Though the parties have taken contradictory plea, the fact remains that whereabouts of Pichaikaran was not known for quite a long time. 11. Upon analysis of evidence, the trial Court has held that Pichaikarans whereabouts were not known and therefore, is presumed to be dead. While so, the lower Appellate Court erred in saying that the plaintiff has not proved that Pichaikarans whereabouts were not known for more than seven years. For its findings, the lower Appellate Court referred to the evidence of DW-1/D-3 wherein he has stated that one Ismail Sahib told him that he saw Pichaikaran in Bombay Port. Evidence of DW-1/D-3 is only hearsay evidence. The said Ismail Sahib, who allegedly saw Pichaikaran was not examined. In the absence of satisfactory evidence, lower Appellate Court was not justified in re-appreciating the oral evidence and record diverse findings. 12. The lower Appellate Court has to bear in mind that it had no opportunity of seeing the witness and to note their demeanour. It is the rule of practice that the Appellate Court should not interfere with the finding of trial Judge unless there is something to indicate that a special feature has escaped analysis of the trial Judge. In the impugned Judgment, the lower Appellate Court has not noted any special feature which hinges upon the credibility of the witnesses so as to re-appreciate the oral evidence. In the impugned Judgment, the lower Appellate Court has not noted any special feature which hinges upon the credibility of the witnesses so as to re-appreciate the oral evidence. Upon analysis of oral evidence, the trial Court has recorded finding of fact that whereabouts of Pichaikaran was not known. In my considered view, the lower Appellate Court erred in interfering with the findings of fact given by the trial Judge. 13. When a person is not heard about for seven years, under Section 108 Indian Evidence Act, there is presumption of his death. Annamalai Gounder died in 1964. Whereabouts of Pichaikaran was not known for quite some time. Though plaintiff was not able to state as to when exactly Pichaikaran left the village, the fact remains that his whereabouts was not heard for quite a long time. Under such circumstances, under Section 108 Indian Evidence Act, trial Court was justified in presuming death of Pichaikaran. In the light of presumption so raised, it was incumbent upon the Defendants to adduce evidence to show that Pichaikaran was alive. As pointed out earlier, excepting the ipse dixit of the third Defendant, no other evidence was adduced to rebut the presumption raised under Section 108 of the Indian Evidence Act. .14. In the partition deed effected in the family of Irusa Gounder under Ex.A-1 Partition .Deed dated 26.09.1974, "D" schedule was allotted to Pichaikaran who was then minor. The properties allotted to Pichaikaran under "D" schedule are :- Ex.A-1 dated 26.09.1974 S.No.53/1 0.15 1/3 out of 0.46 acre S.No.39/1 0.43 ½ out of 2.62 acre S.No.39/5 0.4 ½ out of 0.06 acre S.No.38/3 0.40 out of 0.84 acre and 1/5th share in 196A to an extent of 4 yards x 6 yards. 15. Defendants 1 to 4 including their minor sons being eo nomine parties, have sold their right in the property allotted to Pichaikaran [excepting S.No.38/3]. Defendants 1 to 4 have also sold suit - A Schedule item No.1, S.No.81/1 under Ex.A-4 Sale Deed to the plaintiff. In Ex.A-4 Sale Deed, Defendants 1 to 4 have traced their title as under:- 16. Plaintiff – mother of Pichaikaran, being Class I heir, is entitled to the properties of Pichaikaran. However the plaintiff has got the Sale Deed dated 10.02.1978 executed from Defendants 1 to 4 for the items allotted to Pichaikaran as well as S.No.81/1. In Ex.A-4 Sale Deed, Defendants 1 to 4 have traced their title as under:- 16. Plaintiff – mother of Pichaikaran, being Class I heir, is entitled to the properties of Pichaikaran. However the plaintiff has got the Sale Deed dated 10.02.1978 executed from Defendants 1 to 4 for the items allotted to Pichaikaran as well as S.No.81/1. It is relevant to note that Defendants 1 to 4 and their mother Marimuthu Ammal have sold the same items of properties [covered under Ex.A-4] to 5th Defendant under Ex.B-2 Sale Deed dated 21.01.1978. Though Ex.B-2 was purported to have been executed on 21.01.1978, Ex.B-2 was registered only on 24.04.1978. The trial Court held that Ex.B-2 is not a valid document. The trial Court arrived at the following findings:- .(i) Stamp papers for Ex.B-2 were purchased in Tiruvannamalai; .(ii) The document was registered on 24.04.1978 three months after its execution; (iii) 5th Defendant is a close relative of Marimuthuammal. .17. Taking me through the Judgment of the trial Court, the learned Counsel for the .Appellant plaintiff forcibly contended that when the trial Court has well analyzed the facts and circumstances of the case surrounding Ex.B-2, the lower Appellate Court interfered with the same on slender grounds. As rightly held by the trial Court, Ex.B-2 though executed on 21.01.1978, was registered only three months after its execution. Admittedly, D-5 is a close relative of Marimuthuammal – mother of Defendants 1 to 4. D-5 had not examined himself to explain the circumstances for the delay in registration and passing of consideration etc. As rightly pointed out by the trial Court, there is every possibility of Ex.B-2 Sale Deed coming into existence after execution of Ex.B-4 Sale Deed in favour of the plaintiff. 18. Without adverting to the evidence and striking features surrounding Ex.B-2 Sale Deed, the lower Appellate Court erred in reversing the findings of the trial Court. The lower Appellate Court did not keep in view that Ex.B-2 was registered at a later point of time; nor purchase of stamp papers in Tiruvannamalai and not Sankarapuram where the document was registered. The lower Appellate Court also did not keep in view non-examination of purchaser - D-5 and passing of consideration. .19. The lower Appellate Court did not keep in view that Ex.B-2 was registered at a later point of time; nor purchase of stamp papers in Tiruvannamalai and not Sankarapuram where the document was registered. The lower Appellate Court also did not keep in view non-examination of purchaser - D-5 and passing of consideration. .19. Effect of Registration:- .It is general rule that though a conclusive presumption that a document was made on the date it bears, though Ex.B-2 is dated 21.01.1978, the facts and circumstances pointed out by the trial Court would have the effect of rebutting that presumption. As rightly pointed out by the trial Court, no plausible explanation is forthcoming for purchase of stamp papers in Tiruvannamalai. No doubt under Section 23 of the Registration Act, no document other than a sale, can be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. Though Ex.B-2 was presented within time stipulated under Section 23 of the Act, reasonable doubts arise as to the delay in presentation of the document for registration. As held by the trial Court, there is every reason to presume that Ex.B-2 might have been brought into existence subsequent to Ex.A-4 Sale Deed. 20. The learned Counsel for the respondents contended that the lower Appellate Court held that Ex.A-4 Sale Deed was executed on 10.02.1978 and the plaintiff ought to have made enquiry about other encumbrance. The lower Appellate Court applied the doctrine of caveat emptor and held that the plaintiff could not have derived valid title under Ex.A- 4. The lower Appellate Court ignored the material aspect that Ex.B-2 Sale Deed [dated 21.01.1978] was not registered till 24.04.1978. Therefore, there would not have been any encumbrance about Ex.B-2 Sale Deed. In all probability, Ex.B-2 not having been registered till 24.04.1978, plaintiff could not have possibly known about the alleged encumbrance. The findings of the lower Appellate Court that the plaintiff could have known about Ex.B-2 had she made enquiry is not sustainable. 21. The lower Appellate Court attached much weight to Exs.B-3 and B-4 - kist receipts to hold that D-5 has been in possession of the property. It is relevant to note that Ex.B-3 series kist receipts are all subsequent to the suit. Most of the kist receipts in Ex.B-4 series were paid by the third Defendant. 21. The lower Appellate Court attached much weight to Exs.B-3 and B-4 - kist receipts to hold that D-5 has been in possession of the property. It is relevant to note that Ex.B-3 series kist receipts are all subsequent to the suit. Most of the kist receipts in Ex.B-4 series were paid by the third Defendant. D-5 did not examine himself to speak about his purchase and being in possession of the property and payment of kist. While so, based on Exs.B-3 and B-4 series, lower Appellate Court erred in saying that only D-5 is in possession of the property. In my considered view, Exs.B-3 and B-4 would not in any way advance the case of the Defendant. 22. As pointed out earlier, under Ex.A-4 Sale Deed, suit A Schedule Item No.3 – S.No.38/3 is not covered. S.No.38/3 was allotted to Pichaikaran under "D" Schedule in Ex.A-1 Partition Deed. Plaintiff, mother of Pichaikaran, being Class I Heir, is entitled to succeed to the share of Pichaikaran. The Defendants have taken the plea that on 21.05.1964, as per decision of Panchayatars, plaintiff was given Rs.1,500/- cash and jewels and also sheep for her maintenance and after receiving the same, plaintiff has no further claim in the family properties. It is the further case of Defendants that Pichaikaran was under the care and protection of Irusa Gounder. Defendants have not substantiated their defence that the plaintiff had abandoned the child and that she was paid maintenance. Only the third Defendant was examined as DW-1. Excepting the evidence of DW-1, no other evidence was adduced to substantiate the defence plea. 23. The learned Counsel for the defendants contended that the plaintiff having remarried and abandoned the child, is disqualified from claiming inheritance of the properties of Pichaikaran. Plaintiff being mother of Pichaikaran is the Class-I Heir. A mother does not become disqualified due to her remarriage. Remarriage does not work as forfeiture of her right in the interest of her son because remarriage will not take away her motherhood of the deceased. 24. The lower Appellate Court erred in saying that the plaintiff has not proved the presumptive death of Pichaikaran. The lower Appellate Court misread the evidence and has not analyzed the same in proper perspective. The plaintiff being mother of Pichaikaran she is also entitled to suit A Schedule Item No.3 S.No.38/3 which is not covered under Ex.A-2 Sale Deed. 24. The lower Appellate Court erred in saying that the plaintiff has not proved the presumptive death of Pichaikaran. The lower Appellate Court misread the evidence and has not analyzed the same in proper perspective. The plaintiff being mother of Pichaikaran she is also entitled to suit A Schedule Item No.3 S.No.38/3 which is not covered under Ex.A-2 Sale Deed. Admittedly, under Ex.A-1 Sale Deed, in B Schedule Property, 1/5th share in the house site was allotted to Pichaikaran. The plaintiff as Class I heir is entitled to succeed in the same and for partition of 1/5th share in the B Schedule Property. Findings recorded by the lower Appellate Court are perverse and unsustainable and therefore, the Judgment of the lower Appellate Court is liable to be set aside. 25. The findings of the trial Court is based on detailed and proper appreciation of evidence. Without going through the documents and evidence and records properly, it was wrongly reversed by the lower Appellate Court, basing findings on conjectures, and the same has to be interfered with. 26. The Judgment in A.S.No.99/1989 on the file of the Judgment Additional Subordinate Judge, Cuddalore, South Arcot District is set aside and this second appeal is allowed. The Judgment of the trial Court in O.S.No.2143/1979 dated 212. 1986 on the file of District Munsif, Kallakurichi is confirmed. No costs.