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2011 DIGILAW 3691 (MAD)

Jayakrishnan v. Mala

2011-08-16

A.ARUMUGHASWAMY

body2011
JUDGMENT 1. This appeal has been filed against the Judgment and Decree dated 8.1.2008 made in O.S. No. 5 of 2004 on the file of Additional District and Sessions Judge, Fast Track Court II, Tindivanam. 2. For the sake of convenience, the parties are referred to in the same position as they have been arrayed before the trial Court. 3. The brief averments of the plaint, filed by the plaintiffs would run thus: The schedule mentioned A and B properties are inherited ancestral property of late Vinayagam. Plaintiff Nos. 1 to 3 and third defendant are the daughters of late Vinayagam and Defendant Nos. 1 and 2 are the sons of Late Vinayagam. The fourth defendant is his wife. The fifth defendant is the subsequent purchaser. The sixth defendant is the wife of first defendant. The first defendant created a fabricated sale deed with regard to A schedule property in favour of his wife sixth defendant. The sale deed in favour of the sixth defendant would not bind the right of the share of the plaintiffs. Therefore, the sixth defendant has no right, over the property. In order to cheat the plaintiffs, Defendants 1 and 2 colluded with third defendant created a Will in favour of fourth defendant and influenced the mother of fourth defendant and created a forged document in respect of B schedule property in favour of fifth defendant, who is an influenced person. Late Vinayagam has no legal right to bequeath the properties to others. The fifth defendant has purchased the property fully knowing that it is an ancestral property. The Plaintiffs 1 to 3 are entitled to 24/49 shares in A and B Schedule properties. Hence, the plaintiffs filed this suit for partition and mes ne profits for B Schedule property. 4. The brief facts of written statement of defendants is as follows: The third defendant admitted the plaintiffs claim and she further claimed her share of 8/49 in the A aid B schedule property. The fifth defendant denied all the allegations. It is stated in the written statement that the B schedule property is sold to him by the fourth defendant and a sale deed was registered for a valid consideration. Though the plaintiffs themselves admitted the knowledge of the Will even during the life time of Vinayagam, they failed to file a suit for cancelling the Will. It is stated in the written statement that the B schedule property is sold to him by the fourth defendant and a sale deed was registered for a valid consideration. Though the plaintiffs themselves admitted the knowledge of the Will even during the life time of Vinayagam, they failed to file a suit for cancelling the Will. The sale deed dated 26.4.1999 is true and valid and he is a bona fide purchaser and he has been in possession and enjoyment of the suit property since then. Hence, it is prayed that the suit has to be dismissed. 5. The trial Court, after considering the averments in the plaint and in the written statements, has framed eight issues for consideration. Before the trial Court, on the side of the plaintiffs, P.W.I and P.W.2 were examined and Exhibits A-l to A-3 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exhibits B-1 to B-8 were marked. The trial Court on consideration of oral and documentary evidences has allowed the suit in part. Preliminary decree for partition was passed infavour of plaintiffs 1 to 3. Against which the fifth defendant has preferred this appeal. 6. The fifth defendant is the appellant. The vehement contention of the learned counsel for the appellant is that he is the bona fide purchaser of B schedule property for valid consideration by means of a registered sale- deed/Exhibit B-6 executed by the fourth and the second defendants. He further contended that the fourth defendant is the owner of the property through the Will. He further contended that the conduct of the parties and non-production of the documents will show that the suit property is a self acquired property of late Vinayagam. The fourth defendant is the absolute owner of the suit property. Hence, the sale deed/Exhibit B-6 dated 26.4.1999 is true, valid and duly executed by the fourth defendant for valid consideration: Hence, he prayed that the appeal has to be allowed. 7. On the other hand, learned counsel for the respondents contended that the Will has not been produced by the purchaser which will show that he is not a bona fide purchaser for a valuable consideration and further contended that the property in question is an ancestral property of late Vinayagam. 7. On the other hand, learned counsel for the respondents contended that the Will has not been produced by the purchaser which will show that he is not a bona fide purchaser for a valuable consideration and further contended that the property in question is an ancestral property of late Vinayagam. Therefore, late Vinayagam has no separate right over the property and has no right to bequeath the property to fourth defendant by way of Will. By this way, the fifth defendant is not entitled to the suit property which was purchased by him by means of a sale deed/Exhibit B-6 executed by the fourth and second defendant. Hence, learned counsel prayed that the appeal has to be dismissed. It is further contended that as per the Welfare legislation, the finding of the trial Court has to be confirmed. 8. Upon hearing the arguments on both sides, the following points arise for consideration in this Appeal: “(i) Whether the suit property is an ancestral property of Vinayagam or self acquired property? (ii) Whether the plaintiffs have proved the nature and character of the property?” 9. Point Nos. (i) and (ii) : The relationship between the parties have been admitted. The vehement contention of the counsel for the appellant is that the character of the property has not been proved by the plaintiffs even though they are expected to prove the character of the property. P.W.1 during the crocs examination has admitted as follows: Therefore, from this, I am of the view that the plaintiff has miserably failed even to mention in the plaint about the character of the property and has not produced any documents to show that the suit property is an ancestral property of Vinayagam. Further, it is the contention of the appellant that late Vinayagam had sold the property in favour of his daugher Vasanthi by means of Exhibit B-1 and she in turn had settled the property to her husband Rajagopal by means of Exhibit B-2. Certain other properties were also settled in favour of Kumaresan. From Exhibit B-1, it is seen that late Vinayagam has not traced the title with those documents. He has not mentioned either it is ancestral property or self acquired property. From this, it is clear that late Vinayagam has dealt with the property. Certain other properties were also settled in favour of Kumaresan. From Exhibit B-1, it is seen that late Vinayagam has not traced the title with those documents. He has not mentioned either it is ancestral property or self acquired property. From this, it is clear that late Vinayagam has dealt with the property. The filing of the suit by the respondents without including Exhibit B-1 will prove the conduct of the respondents. From this conduct, it is construed that the property is the self acquired property of late Vinayagam. Exhibit B-5 is the xerox copy of the Will dated 3.4.1996. The suit property has been dealt with by late Vinayagam and he executed a Will in favour of the fourth defendant. After three years, under Exhibit B-6 dated 26.4.1999, the fourth defendant along with her son, Srinivassn, the second defendant has sold the property to the appellant/fifth defendant. Even though the Will has been executed in the year 1996 and the sale deed also has been executed in the year 1999 and one of his sons has signed as a party to the sale deed, the plaintiffs have not raised even their little finger till 2001. Therefore, from their conduct, it is clear that the suit property is construed as self acquired properly of late Vinayagam since no contra evidence and document has been produced to prove that it is an ancestral property. Point No. 1 is answered accordingly. 10. The next contention of the learned counsel for the respondents is that the appellant has failed to prove that he is the bona fide purchaser and he has not enquired about the properties. Hence, the counsel prayed that the appeal has to be dismissed. 11. Learned counsel appearing for the appellant contended that the payment of sale consideration has been proved from the cross-examination of P.W.1 . The relevant portion of the evidence of P.W.1 is as follows: Therefore, from this, it is clear that the fifth defendant has made payment, and it has been admitted by P.W.1/second plaintiff herself. In such circumstances, the non enquiry of the nearby persons cannot be the ground for denial of the sale deed. I am of the view that the suit property is a self acquired property of late Vinayagam. Hence, the Will executed by late Vinayagam in favour of his wife, the fourth defendant is genuine. In such circumstances, the non enquiry of the nearby persons cannot be the ground for denial of the sale deed. I am of the view that the suit property is a self acquired property of late Vinayagam. Hence, the Will executed by late Vinayagam in favour of his wife, the fourth defendant is genuine. The fourth defendant in turn had sold the property to the fifth defendant for valid consideration also has been proved. 12. The trial Court in his judgment has stated that even though the will in original has not been produced, the appellant has taken severe steps for production of the Will. Further, it was proved that it was acted upon by the other shares. Therefore, it is construed that the Will has been proved. The character of the property has to be proved only by the family members and it cannot be proved by a third party by the purchasers. Point No. (ii) is answered accordingly. Hence, the finding of the trial Court in this regard is not correct. Hence, the finding the trial Court regarding the ‘B‘ Schedule property is set aside and the appeal is allowed. 13. In the result, (i) the appeal is partly allowed. (ii) insofar as ‘A‘ Schedule property is concerned, the judgment and decree of trial Court is confirmed with mesne profits; (iii) insofar as ‘B‘ Schedule property is concerned, the judgment and decree of trial Court is set aside and the suit is dismissed against ‘B‘ Schedule property; (iv) No costs. Consequently, connected miscellaneous petition is closed. Order accordingly.