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2012 DIGILAW 448 (MAD)

Govindan v. Vedichi Gounder

2012-01-30

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.1 of 2004 in partly modifying the preliminary decree passed by the trial Court in respect of all the suit properties in O.S.No.398 of 1995. 2. The plaintiffs are the appellants and the defendants are the respondents in the appeal. 3. The facts of the case of he plaintiffs before the trial Court would be as follows: The first plaintiff and the first defendant are brothers. The second and third plaintiffs are the sons of the first plaintiff. The second and third defendants are the sons of the first defendant. The first plaintiff and the first defendant had one sister who is the fourth defendant. The suit properties are the ancestral properties of the plaintiffs and the defendants. The father of the first plaintiff Chinnappan inherited the first item of the suit properties from his father V.Govindan. The second item of the suit properties was purchased by the mother of the first plaintiff and the defendants 1 and 4. The mother of the first plaintiff and first and fourth defendants by name Valliammal purchased the second item of the suit property 45 years ago. The first item of the suit property is the self acquired property of V.Govindan. V.Govindan had two brothers viz., Karumbaiyan and Nallavedi. Nallavedi died 100 years ago. V.Govindan had been in possession and enjoyment of the suit properties till his life time. After his death, the father of the first plaintiff Chinnappan inherited the properties. After the death of Chinnappan, the first plaintiff and the first defendant inherited the entire suit properties. The fourth defendant never enjoyed any portion of the suit property. So the fourth defendant has no right over the inherited suit property. Vellaiyammal died in the year 1992. After her death, the first plaintiff and the first defendant inherited the second item of the suit properties. The 4th defendant waived her right in the suit property. Therefore, the plaintiffs have filed the suit for partition and separate possession of their respective shares. The defendants 6 to 10 are impleaded as parties since they are co-sharer in S.No.176/15. 4. The objections of the defendants 1 and 3 in the form of written statement are as follows: S.No.173/1 is in actual possession and enjoyment of the defendants 1 to 3 . The defendants 6 to 10 are impleaded as parties since they are co-sharer in S.No.176/15. 4. The objections of the defendants 1 and 3 in the form of written statement are as follows: S.No.173/1 is in actual possession and enjoyment of the defendants 1 to 3 . The plaintiffs have no right of possession over the same. The plaintiffs are claiming a share in S.No.173/1 on the basis of joint patta which was wrongly issued by the revenue authorities. The mere inclusion of names in the patta will not confer any title to the plaintiffs. 5. The objections of the second defendant are as follows : The plaintiffs are not entitled to any share in serial No.4 of item No.1 of the suit properties, S.No.173/1 which exclusively belonged to this defendant under a settlement deed executed by Seerangayee W/o Karumbaiyan on 15.12.1966. It is false to state that S.No.173/1 is a self acquired property of V.Golvindan. V.Govindan had never been in possession and enjoyment of the property in S.No.173/1. It is also false to state that S.No.173/1 was enjoyed by Chinnappan after the death of V.Govindan. Karumbaiyan died long before leaving his wife Seerangayee and two daughters Periammal and Vedakka as his legal heirs. The defendants' mother is the daughter of Periamma and hence, Seerangayee had executed settlement deed in favour of this defendant during his minority. Thus, this defendant is the absolute owner of S.No.173/1. Hence, the suit may be dismissed. 6. The 6th defendant filed a written statement by stating his objections as follows: The first defendant has applied for electricity connection for agricultural purpose. During the operation of effecting electricity supply to the first defendant, the plaintiff has filed the suit. As per the rules and regulation of the Tamil Nadu Electricity Board, a consumer having any share in the agricultural land is entitled to get service connection, on executing indemnity bond to the Tamil Nadu Electricity Board. 7. On the basis of the pleadings putforth by the parties, the trial Court framed necessary issues and entered trial. After appraising the oral evidence of the witnesses viz., P.Ws. 1 and 2on the side of the plaintiff and D.Ws. 1 to 3 on the side of the defendants and on considering the documentary evidence produced on the side of the plaintiffs in Exs. A1 to A22 and on the side of the defendants in Exs. After appraising the oral evidence of the witnesses viz., P.Ws. 1 and 2on the side of the plaintiff and D.Ws. 1 to 3 on the side of the defendants and on considering the documentary evidence produced on the side of the plaintiffs in Exs. A1 to A22 and on the side of the defendants in Exs. B1 to B4 and also after considering the Commissioner's report and sketches produced in Exs.C2 to C4, the trial Court had come to the conclusion of granting preliminary decree for partition of half share as belonging to the plaintiffs. 8. Aggrieved against the said preliminary decree and judgment passed by the trial Court, the defendants 1 to 3 preferred an appeal before the First Appellate Court in A.S.No.1 of 2004 and the Appellate Court had also heard the arguments on either side and after considering the evidence adduced by the parties, it had come to the conclusion of excluding item-4 of the suit properties from the purview of preliminary decree by holding that the said property was belonging to the second defendant by virtue of the settlement deed dated 15.12.1966 made by Seerangayee in favour of the 2nd defendant and in other respects, the preliminary decree and judgment passed by the trial Court were confirmed by the First Appellate Court. 9. Aggrieved by the exclusion of item-4 of the suit property from the preliminary decree, the plaintiffs have challenged the finding reached in the judgment, have preferred this Second Appeal. 10. On admission of the second appeal, this Court had formulated the following questions of law for consideration in this second appeal: "i) Whether in law the lower appellate Court was right in finding that Ex.B3 was true and valid under section 90 of the Evidence Act, when the appellants were disputing its genuineness? ii) Whether in law the lower appellate Court was right in holding that the settlor had title to execute Ex.B3 without any documentary evidence, especially since Exs.A1 to A3 proved joint ownership and enjoyment? iii) Whether in law the lower appellate Court was not wrong in overlooking that even if Ex.B3 was genuine, it had not been accepted and acted upon as contemplate din Section 123 of the Transfer of Property Act?" 11. iii) Whether in law the lower appellate Court was not wrong in overlooking that even if Ex.B3 was genuine, it had not been accepted and acted upon as contemplate din Section 123 of the Transfer of Property Act?" 11. Learned counsel for the appellants would submit in her arguments that the appellants are not questioning the finding of confirmation of the preliminary decree passed by the trial Court in respect of the suit property except item-4 of the suit property. He would further submit in his argument that the lower Appellate Court ought to have found that the said item-4 of the suit properties was also belonging to the joint family properties and should have confirmed the judgment and decree of the trial Court. He would further submit in his arguments that the suit properties which are described in the schedule to the plaint were all belonging to the joint family and therefore, those properties were dealt by the joint family for borrowing monies with third parties through mortgaging the said properties. He would further submit that Exs.A1 and A2 would go to show that items 1 to 3 were mortgaged even in the year 1930 and in the year 1945, by virtue of those mortgage deeds. He would further submit that item-4 of the suit properties also belongs to joint family and it was dealt with in Ex.A3 mortgage deed dated 22.6.1945. He would further submit that the said mortgage deed (Fjit gj;jpuk;) was executed in favour of one Papayee Ammal by Chinnappan son of Govindan and his then minor sons Vedichi, Periyannan and Govindan. He would also submit that in the said document, item-4 of the suit property was shown as security for the loan and therefore, the said property was dealt with as joint family property. He would further submit in his argument that the First Appellate Court has grossly erred in exempting item-4 of the suit property on the basis of the settlement deed executed on 15.12.1966 marked as Ex.B3 since the said document contains other items of suit properties in S.No.163/4 referred in item-3 and in S.No.175/1 referred as item-5 and in S.No.176/6 with reference to item-6 of the suit properties were not exempted like that of item-4. He would further submit that the lower appellate Court had wrongly come to a conclusion that the said document produced in Ex.B3, a registration copy prepared and issued by Sub-Registrar, Sangagiri, Thurkam on 06.11.1995 and on the date of the suit, the said document would not have completed 30 years since the suit was filed in the year 1995. There cannot be any presumption under section 90 of the Evidence Act. He would further submit that the First Appellate Court had not applied its mind that the original document Ex.B3 was not produced into Court and the signature of the settler was not proved through the examination of the attesting witness for identifying the thumb impression of the settlor. He would further submit that the attestation required under section 3 of the Transfer of Property Act was not proved as per the requirement of Section 68 of the Evidence Act. He would further submit that even otherwise the said document was held to be true and genuine, the settlee viz., 2nd defendant did not accept the gift through his guardian and there was no evidence to the effect so as to complete the transaction of gift. She would further submit that the non-examination in respect of items 3, 5 and 6 would go to show that the first appellate Court has not understood the case in proper perspective but the decision reached by the First Appellate Court that presumption can be drawn under section 90 of the Evidence Act when the original document dated 15.12.1966 was not produced but registration copy was alone produced which is not more than 6 months old, cannot be sustained. She would also submit that the registration copy of any document produced in lieu of the original document cannot be considered as a document of 30 years old under section 90 of the Evidence Act. She would cite a judgment of this Court reported in 1997(3) L.W. 917 (Marappa Gounder & 2 others v. Palaniammal & 7 others) in support of her argument. She would further submit that the attestor of Ex.B3 settlement deed examined as D.W.3 did not speak about the attestation in the evidence when the original document of Ex.B3 cannot help the 2nd defendant to exempt item-4 of the suit property from the purview of the preliminary decree. She would further submit that the attestor of Ex.B3 settlement deed examined as D.W.3 did not speak about the attestation in the evidence when the original document of Ex.B3 cannot help the 2nd defendant to exempt item-4 of the suit property from the purview of the preliminary decree. He would therefore, submit that the judgment and decree of the 1st appellate Court in modifying the said decree in respect of items 1 to 3, 5 and 6 alone will not hold water. She would also submit that when the settlement deed has not been considered as a true document due to its failure to draw presumption under section 90 of the Evidence Act as well as due to the non-proving of the said document, when especially the evidence of D.W.3 would not help for the proof of Ex.B3, and even the settler was having competency and right to execute the settlement deed in respect of the said properties, the said gift was not accepted by the settlee and there was no evidence to that effect and therefore, there could be no transfer be made under Ex.B3 and the exemption of item-4 of the suit properties from the partitioning, made by the First Appellate Court has to be set aside and the appeal has to be allowed and thereby the judgment passed by the trial Court in preliminarily decreeing the suit may be restored. 12. Learned counsel for the respondents would submit in her argument that the 1st plaintiff was the son of one Chinnappan and the plaintiffs 2 and 3 are his sons and the first defendant was the brother of 1st plaintiff . The defendants 2 and 3 are the sons of the first defendant. The 4th defendant was one Seerangayee(junior), the sister of the first plaintiff and first defendant and one Periannan. She would further submit that the said family got the property belonged to the grand father of the first plaintiff and first defendant viz., Vedichi Govinda Gounder, and the said properties were derived by the father of the first plaintiff and first defendant viz., Chinnappan, and after the lifetime of Chinnappan, the sons of Chinnappan were equally entitled to the said properties. She would further submit that item-4 of the suit property did not belong to the joint family but it belongs to one Seerangayee (senior) who was the wife of one Karumbaiyan, the brother of Vedichi Govinda Gounder and after her husband's death she was living with Vedichi Govinda Gounder and during the said period, she, out of love and affection, had executed the settlement deed in favour of the second defendant by showing the first defendant as guardian and through the said gift the property was belonging to the second defendant only and the second defendant was put in possession of the property after he had attained the age of majority. She would further submit in her argument that item-4 of the suit properties would not be covered by a decree of partition since it was a self-acquired property of Seerangayee and she had disposed the said property in favour of the second defendant and therefore, the First Appellate Court was right in exempting the said property from the purview of partition. She would further submit that the documentary evidence produced in Ex.B3 even though, a certified copy would go to show that the said transaction was aged more than 30 years and there is no difference between the production of original document or its certified copy in order to draw presumption under section 90 of the Evidence Act that as the transaction was 30 years old supported by documentary evidence, it need not be considered by Court of law, the age was not proved. She would further submit that if such concept is accepted, the actual 30 years transaction could not get the benefit of section 90 of Evidence Act. She would further submit that it was very difficult to call for the examination of the attestor to prove the settlement deed which was aged more than 30 years, however, the attesting witness was examined as D.W.3 in order to comply with the provisions of Section 68 of the Evidence Act. She would further submit that it was very difficult to call for the examination of the attestor to prove the settlement deed which was aged more than 30 years, however, the attesting witness was examined as D.W.3 in order to comply with the provisions of Section 68 of the Evidence Act. She would also submit that D.W.3 had spoken about the attestation and the evidence of D.W.2 who is the staff of the Sub-Registrar office concerned would also go to show that the certified copy Ex.B3 was equivalent to the original copy in the Sub-registrar's office and therefore, the production of Ex.B3 would assume the character as original document and the evidence of D.W.3 would go to show that the settlement deed Ex.B3 was deemed proved and therefore, the judgment and decree passed by the First Appellate Judge in A.S.No.1 of 2004 exempting item-4 of the suit property need not be disturbed. She would further submit in her argument that the 2nd defendant has no serious objection in respect of other properties in the suit schedule. Therefore, the second appeal preferred by the appellants/plaintiffs may be dismissed by confirming the judgment and decree passed by the first appellate Court. She would further submit that the judgment 1997(3) L.W. 917 ( Marappa Gounder & 2 others v. Palaniammal & 7 others) as cited by the learned counsel for the appellants would not apply to the facts of the case and therefore, the present second appeal may be dismissed by confirming the judgment and decree passed by the first appellate Court. 13. I have given anxious thoughts to the arguments advanced on either side. 14. The suit was originally filed by the plaintiffs seeking for partition and separate possession of suit properties into two equal shares and to allot one such share to the plaintiffs in the suit properties. The suit schedule contains 6 items of landed properties. The trial Court had considered the evidence adduced on either side and had come to the conclusion of dividing the suit properties into two equal shares and to allot one such share to the share of the plaintiffs and thus, a preliminary decree was passed. The suit schedule contains 6 items of landed properties. The trial Court had considered the evidence adduced on either side and had come to the conclusion of dividing the suit properties into two equal shares and to allot one such share to the share of the plaintiffs and thus, a preliminary decree was passed. While awarding such a preliminary decree, the trial Court had found that the settlement deed executed by Seerangayee(senior) in favour of the 2nd defendant in respect of item-4 of the suit property was not a true and genuine document and it was also not proved by the plaintiff in accordance with law. However, on appeal preferred by the defendants 1 to 3, the First Appellate Court had considered the age of the said document viz., settlement deed dated 15.12.1966 and had drawn the presumption as to its genuineness under section 90 of the Evidence Act and accordingly, on the date of suit viz., 1995, it was considered as 30 years document and therefore, item 4 of the suit property which was mentioned in settlement deed Ex.B3 was held to be a separate property of the 2nd defendant and thus he exempted the said property from the preliminary decree. The said finding of the First Appellate Court was challenged by the plaintiffs as appellants in this appeal. 15. Learned counsel for the appellant would cite a judgment of this Court reported in 1997(3) L.W. 917 ( Marappa Gounder & 2 others v. Palaniammal & 7 others) for the principle that a presumption under Section 90 of the Evidence Act cannot be invoked while a certified copy of the document has been produced. The relevant passage runs thus: "16. Apart from this, even though the date of ex.A1 is 30 years prior to the institution of the suit, being only a registration copy, presumption under Section 90 of the Evidence Act cannot be applied. In the decision in the case of Basant Singh v. Brij Raj saran (AIR 1935 P.c. 132=42 L.W.231), the learned Judge held, thus, "Section 90, evidence Act, clearly requires the production to the Court of the particular document in regard to which the court may make the statutory presumption. In the decision in the case of Basant Singh v. Brij Raj saran (AIR 1935 P.c. 132=42 L.W.231), the learned Judge held, thus, "Section 90, evidence Act, clearly requires the production to the Court of the particular document in regard to which the court may make the statutory presumption. If the document produced is a copy, admitted under S.65, as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine, but it is not sufficient to justify the presumption of due execution of the original under S.90...." In the decision in the case of Sital Das v. Sant Ram and others ( Air 1954 SC 606 ), it was held thus, "The language of Section 90 requires the production of the particular document in regard to which the court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under section 65 and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original." 16. In the said judgment, Sital Das's case was referred to by this Court and found that the certified copy of any document cannot be presumed to be a true and genuine document even though the said document was dated more than 30 years. In the judgment of the Honourable Apex Court referred to between AIR 1954 SC 606 (Sital Das v. Sant Ram) it is categorically mentioned that the certified copy being secondary evidence under section 65, cannot be considered to be a document equivalent to a document which was aged more than 30 years except under the circumstances that the said certified copy itself is more than 30 years and was produced from proper custody. Therefore, I could see that the settlement deed produced in Ex.B3 obtained by the second defendant in the year 1995 only, even though the settlement deed was dated 15.12.1966. Therefore, no question of drawing any presumption as to its genuineness under section 90 of the Evidence Act. Therefore, I could see that the settlement deed produced in Ex.B3 obtained by the second defendant in the year 1995 only, even though the settlement deed was dated 15.12.1966. Therefore, no question of drawing any presumption as to its genuineness under section 90 of the Evidence Act. Even otherwise, when we consider through the evidence adduced by the defendants, I could see D.W.3 was an attestor and D.W.2 was a staff of the Sub-Register office concerned who had brought the original copy of document produced and kept by the Sub-Registrar office. D.W.2's evidence would go to show that Ex.B3 was a document brought by him to Court dated 15.12.1966, the settlement deed executed by one Seerangayee Ammal. No doubt the evidence of D.W.2 would go to show that the settlement deed has been executed by one Seerangayee and was presented with the Sub-Registrar Officer where D.W.2 is working. The evidence of D.W.2 would not in any way prove the execution of the document which requires the evidence of attesting witnesses. D.W.3 who is stated to be an attesting witness would speak about the signing of document by Seerangayee but he could not identify the signature or thumb impression of Seerangayee(senior) in the original document, since the original was not produced. When the original document has not been produced and the signature was not identified and the attestation was not spoken by the attesting witnesses, the fulfillment of Section 3 of the Transfer of Property Act, cannot be taken as complete for the proof of attestation of the execution of the said settlement deed by the said Seerangayee. Apart from that, when we test the contents of the document viz., Ex.B3, I could see that the suit items 3, 5 and 6 were also shown to have been settled or gifted by the said Seerangayee (senior) in favour of the second defendant. The first appellate Court who was conscious to exempt item-4 of the suit property, did not come forward to exempt item 3, 5 and 6 also from the purview of the preliminary decree. Therefore, I could see that the said approach of the first appellate Court is not appreciable. 17. In the back drop of the case, we have to see whether the said Seerangayee (senior) was entitled or eligible to settle the properties comprised in Ex.B3 in favour of the second defendant, which is also an important question. Therefore, I could see that the said approach of the first appellate Court is not appreciable. 17. In the back drop of the case, we have to see whether the said Seerangayee (senior) was entitled or eligible to settle the properties comprised in Ex.B3 in favour of the second defendant, which is also an important question. According to the plaintiff, all the suit properties are belonging to the joint family descending from Vedichi Govinda Gounder. The properties described in the suit schedule were stated to have mortgaged by the first plaintiff Govindan and others through Exs.A1, A2 and A3. When we happen to peruse Exs.A1, A2 and A3, all those documents are found to be mortgage deeds, in which, the first plaintiff and other members of the family had joined together to execute the mortgage of lands in security for borrowing money. In Exs.A1 and A2, the other items of properties except item-4 are mentioned and in Ex.A3, I could see that the suit item-4 was also mentioned along with other properties and the said property was also mortgaged by the joint family even in the year 1945. Those documents which are really more than 30 years old and they being original documents need not be rejected. Therefore, the properties comprised in Exs.A1 to A3 are found to be joint family properties which would include item-4 of the suit property also. Therefore, the said property namely 4th item of the suit property cannot be settled or gifted away by the Seerangayee (senior) in favour of the 2nd defendant, since on the date of settlement, namely 15.12.1966, the settlor Seerangayee had any right over the property. Therefore, the appraisal of evidence as well as the application of law over the facts and circumstances of the case projected through the evidence was not properly perceived by the First Appellate Court and it had glaringly failed to consider the true character of Ex.B3 settlement deed but failed in its duty but upheld the settlement deed in Ex.B3 which is factually as well as legally not sustainable. 18. In view of the fact that the first appellate Court did not properly perceive the evidence and document, the approach to set aside the findings of the trial Court in decreeing the entire suit, and to dismiss the claim in respect of item-4 of the suit property for partition, are found to be not correct. 18. In view of the fact that the first appellate Court did not properly perceive the evidence and document, the approach to set aside the findings of the trial Court in decreeing the entire suit, and to dismiss the claim in respect of item-4 of the suit property for partition, are found to be not correct. In the circumstances, it has become necessary for this Court to decide all the questions of law formulated by this Court in favour of the appellants and therefore, the appeal has to be necessarily allowed by setting aside the judgment and decree passed by the first appellate Court against the plaintiffs. 19. In view of my discussion held above, I am of the considered view that the First Appellate Court was grossly erred in exempting the property in item-4 of the suit schedule and in interfering with the well considered judgment of the trial Court and the reasons assigned by the First Appellate Court is not legally sustainable. Therefore, the judgment and decree passed by the First Appellate Court are set aside in respect of item-4 of the suit property and thus the judgment and decree passed by the trial Court are restored. Accordingly, the second appeal is allowed. There shall be no order as to costs.