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2013 DIGILAW 2620 (MAD)

Kaliammal (died) v. Chenniappa Gounder (deceased)

2013-07-24

R.S.RAMANATHAN

body2013
JUDGMENT :- 1. The deceased first respondent in this Appeal filed the suit in O.S.No.111 of 1991, on the file of the Sub Court, Erode, seeking for the relief of declaration that he was the absolute owner of the suit property and for recovery of the suit property from the defendants 1 and 2 and for a direction, directing the defendants 3 to 12 to pay the rent to the plaintiff. 2. The Trial Court, in and by its judgment, dated 2.3.1995 decreed the suit in favour of the plaintiff. Aggrieved by the same, the present Appeal was filed by the second defendant. 3. The case of the plaintiff, as seen from the plaint, is as follows:-i) The plaintiff-Cheniappa Gounder and one Palaniappan, were brothers and they were the sons of Subbraya Gounder. The said Palaniappan was the younger brother of the plaintiff and he was employed as Office Assistant in the Criminal Court of Periyar District and he died unmarried. Therefore, the plaintiff was the legal representative of his brother Palaniappan. The first defendant-Nallammal, who claimed to be the wife of Palaniappan was actually married to Nachimuthu Gounder and through him, the second defendant was born. Therefore, the defendants 1 and 2 were not entitled to claim any right over the properties of the deceased Palaniappan and the first defendant-Nallammal worked only as a servant maid in the house of Palaniappan and the second defendant was not born to Palaniappan through the first defendant. Therefore, the defendants 1 and 2 were not the legal heirs of Palaniappan and as they claimed right over the properties of Palaniappan, the suit was filed by the plaintiff, viz., the brother of Palaniappan, for the relief of declaration. 4. The second defendant filed a written statement, stating that the relationship between the plaintiff and the deceased Palaniappan was not admitted and first defendant was the legally wedded wife of Palaniappan and the second defendant was born to him through the first defendant and the marriage between the first defendant and Palaniappan, took place in the year 1940, at Erode. The second defendant has further stated that the first defendant was not the wife of Nachimuthu Gounder and she never worked as servant maid in the house of Palaniappan and she was living with him as his wife and Legal Heirship Certificate was also issued in her favour. The second defendant has further stated that the first defendant was not the wife of Nachimuthu Gounder and she never worked as servant maid in the house of Palaniappan and she was living with him as his wife and Legal Heirship Certificate was also issued in her favour. In fact, Palaniappan himself had mentioned about the first defendant as his wife in his record. Therefore, the plaintiff cannot claim any right over the properties of the deceased Palaniappan. 5. The defendants 3 to 12 are the tenants and therefore, there is no need to refer to the written statement filed by the eleventh defendant. 6. On the basis of the aforesaid pleadings, the Trial Court framed the following issues:- i. Whether the plaintiff is entitled to file the suit? ii. Whether the plaintiff is entitled to the relief of recovery of possession? and iii. Whether the defendants 3 to 12 are liable to pay the rent to the plaintiff? 7. Before the Trial Court, on the side of the plaintiff, the plaintiff examined his son as P.W.1 and also examined another person, as P.W.2 and marked seven documents, viz., Exs.A.1 to A.7. The plaintiff also summoned certain documents and they were marked as Ex.X.1 series. On the defendants' side, the second defendant examined herself as D.W.1 and also examined another witness as D.W.2 and marked eleven documents, viz., Exs.B.1 to B.11. 8. The Trial Court, after framing issues and after examining the witnesses, held that the first defendant-Nallammal was married to Nachimuthu Gounder and that was proved by Ex.A.1, and Ex.B.2 would only show that Palaniappan and Nallammal lived together. Having regard to the fact that the first defendant-Nallammal was already married to Nachimuthu Gounder, she cannot be the legally wedded wife of Palaniappan and therefore, the second defendant also cannot claim to be the legitimate daughter of Palaniappan and she too was not entitled to any relief. 9. The Trial Court further held that Ex.A.6 proves the fact that the plaintiff and Palaniappan were brothers and as per Exs.B.3 and B.4, Palaniappan was the son of Subbraya Gounder. Therefore, considering Exs.B.3, B.4, and A.6, the plaintiff proved that he was the brother of Palaniappan and hence, he is the legal representative of the deceased Palaniappan and answered the issues in favour of the plaintiff and decreed the suit. Hence, this Appeal. 10. Therefore, considering Exs.B.3, B.4, and A.6, the plaintiff proved that he was the brother of Palaniappan and hence, he is the legal representative of the deceased Palaniappan and answered the issues in favour of the plaintiff and decreed the suit. Hence, this Appeal. 10. The learned counsel appearing for the appellants submitted that the Trial Court erred in holding that the first defendant was the wife of Nachimuthu Gounder, on the basis of Ex.A.1. In the absence of any evidence to show that the person mentioned in Ex.A.1 was the first defendant, the first defendant cannot be considered to be the wife of Nachimuthu Gounder and having regard to Exs.A2, A.9, A.10 and A.11, the Trial Court ought to have held that the first defendant-Nallammal was the wife of Palaniappan and the second defendant was born to her through Palaniappan and they are the legal heirs of Palaniappan and therefore, the plaintiff cannot maintain the suit. 11. The learned counsel for the appellants further submitted that even assuming that the first defendant was not the legally wedded wife of Palaniappan, the suit filed by the plaintiff was not maintainable, as the plaintiff failed to prove that he was the brother of Palaniappan. It is his further submission that admittedly, the plaintiff was not examined before the Trial Court. The plaintiff was the competent person to speak about the relationship between him and his brother-Palaniappan and P.W.1 is his son and having regard to the evidence of P.W.1 that he has not seen Palaniappan, he is not the competent person to speak about the relationship between his father and his father's brother-Palaniappan and taking advantage of the similarity in the father's name of Palaniappan and the plaintiff, one cannot presume that the plaintiff was the brother of the deceased Palaniappan and onus is on the plaintiff to prove that he is the brother of Palaniappan and when he has not discharged that burden, the suit filed by him was not maintainable. 12. 12. Per contra, the learned counsel appearing for the respondents submitted that the Trial Court has rightly held that first defendant-Nallammal was not the legally wedded wife of Palaniappan, having regard to Ex.A.1, as Ex.A.1 was acted upon and accepted by the defendants 1 and 2 and the same was proved by Ex.X.1 series and therefore, it cannot be contended that they have nothing to do with the property mentioned in Ex.A.1. The learned counsel further submitted that issuance of legal heirship certificate in favour of the defendants 1 and 2 will not clothe them with the right to claim the property of the deceased Palaniappan. When the first defendant was proved to be the wife of Nachimuthu Gounder and the second defendant was born to Nachimuthu Gounder through the first defendant, they were not the legal heirs of Palaniappan and therefore, they cannot claim any right over the properties of Palaniappan. 13. The learned counsel for the respondents further submitted that there is no specific denial of relationship between the plaintiff and Palaniappan in the written statement, and in the cross-examination of P.W.1, no suggestion was put to P.W.1, whether the deceased Palaniappan was not the brother of his father. On the other hand, the cross examination proceeded on the basis that Palaniappan was the paternal uncle of P.W.1 and considering all these aspects, and also Ex.A6, the Trial Court rightly held that the plaintiff was the brother of Palaniappan and therefore, he was the legal representative of the deceased Palaniappan and the suit filed by him was maintainable. 14. On the basis of the above submissions of the learned counsel appearing for the respective parties, the points that arise for consideration in this Appeal are as follows:-i) Whether the first defendant-Nallammal was the legally wedded wife of Palaniappan and whether the second defendant-Kaliammal was born to Palaniappan through the first defendant? and ii) Whether the plaintiff was the brother of Palaniappan and as such, whether the suit filed by him was maintainable? 15. At the time of filing of the suit, the first defendant-Nallammal was alive and during the pendency of the suit, she died and her daughter, the second defendant was recorded as her legal heir. The defendants 3 to 12 are the tenants. Ex.A.1 is the settlement deed executed by one Nachimuthu Gounder in favour of the second defendant-Kaliammal. 15. At the time of filing of the suit, the first defendant-Nallammal was alive and during the pendency of the suit, she died and her daughter, the second defendant was recorded as her legal heir. The defendants 3 to 12 are the tenants. Ex.A.1 is the settlement deed executed by one Nachimuthu Gounder in favour of the second defendant-Kaliammal. In that document, it has been stated that Kaliammal, the wife of Raja Gounder, was the daughter of Nachimuthu Gounder and out of love and affection, the property was settled in her favour and it was also stated that her mother Nallammal left the executant-Nachimuthu Gounder and was living with another person for more than thirty years and therefore, no properties were given to his wife Nallammal. 16. Though D.W.1/Kaliammal/second defendant had denied the relationship between her mother/first defendant and Nachimuthu Gounder, and also the properties conveyed to her, under Ex.A.1, it is seen from Ex.X.1 series that after the death of Nachimuthu Gounder, the patta, which stood in the name of Nachimuthu Gounder, was transferred in the name of Raja Gounder, Nallammal and Kalliammal, in respect of the properties covered under Ex.A.1. Therefore, the Trial Court has rightly held that having regard to Ex.A.1 and Ex.X.1, the plaintiff proved that the first defendant-Nallammal was not the legally wedded wife of Palaniappan and the second defendant was not born to Palaniappan through the first defendant-Nallammal. The Trial Court also rightly observed that though Palaniappan and Nallammal lived together for more than three decades, the legal relationship of marriage cannot be presumed, having regard to the fact that Nallammal was already married to Nachimuthu Gounder and Kaliammal was born to Nachimuthu Gounder through Nallammal. Hence, long cohabitation or living together for more than three decades will not lead to any presumption of lawful marriage, having regard to the fact that Nallammal was already married to Nachimuthu Gounder. Therefore, the Trial Court has rightly held that the defendants 1 and 2 were not the legal heirs of Palaniappan and I do not find any infirmity in the findings rendered by the Trial Court in that aspect and Point No.i) was answered against the appellant. 17. Therefore, the Trial Court has rightly held that the defendants 1 and 2 were not the legal heirs of Palaniappan and I do not find any infirmity in the findings rendered by the Trial Court in that aspect and Point No.i) was answered against the appellant. 17. The Trial Court also considered Exs.B.2, 9, 10 and 11 and held that Ex.B.11, viz., the legal heirship certificate cannot be relied upon to prove the status and when a dispute arises whether a person is the legal heir of another person, the same has to be proved in a Court of Law and the legal heirship certificate issued in favour of the defendants 1 and 2 will not prove the status. Similarly, Exs.B.9 and B.2, the voter's ID and the pension granted to Nallammal will not prove the status of Nallammal and having regard to Ex.A.1 and Ex.X.1 series, the plaintiff has proved that Nallammal was not the legally wedded wife of Palaniappan and he was the wife of Nachimuthu Gounder and her marriage with Nachimuthu Gounder was not dissolved and the second defendant was born to Nachimuthu Gounder through Nallammal and therefore, the defendants 1 and 2 were not the legal representative of Palaniappan. 18. Another contention of the learned counsel for the appellants was that the plaintiff miserably failed to prove that he was the brother of Palaniappan. I too find considerable force in the contention of the learned counsel for the appellants. In the written statement, it has been clearly stated that the relationship between the plaintiff and the deceased Palaniappan was denied and the plaintiff was put to strict proof of the same. According to me, the same cannot be stated to be vague denial, as the first defendant specifically denied the relationship of plaintiff with Palaniappan and therefore, onus is on the plaintiff to prove that he was the brother of Palaniappan and he was the competent person to speak about the relationship. 19. During trial, the plaintiff was alive and it was only stated that he was not in a position to move around, but, there was no evidence to show that he was incapable of giving evidence due to his mental faculties. He could have taken out an application for appointment of an Advocate Commissioner to examine him and he could have deposed evidence through commission. He could have taken out an application for appointment of an Advocate Commissioner to examine him and he could have deposed evidence through commission. For the reasons best known to him, he did not enter into the box and he contented only with the examination of his son-P.W.1. A reading of P.W.1's evidence would reveal that he does not know anything about the relationship between his father and Palaniappan; he did not know whether Palaniappan was employed; he has not seen his paternal uncle Palaniappan; he was not aware of the year of death of Palaniappan; he does not know whether Palaniappan came to Erode, and where he was living. P.W.1 also admitted that nobody from his family attended Palaniappan, when he was sick and they have not attended the obsequies of Palaniappan. 20. Therefore, it cannot be stated from the evidence of P.W.1 that the plaintiff was the brother of Palaniappan. The Trial Court relied upon Exs.B.3, B.4 and A.6, to arrive at a conclusion that Palaniappan was the brother of the plaintiff. In Exs.B.3 and B.4, Palaniappan was shown as the son of Subbaraya Gounder and in Ex.A.6, viz., the voters list, it has been mentioned that Chenniappa Gounder, son of Subbraya Gounder, residing at Door No.60 and Palaniappan, son of Subbaraya Gounder, was residing at Door No.61. Merely because, the father's name of Palaniappan was residing at Door No.61 and Chenniappa Gounder, residing at Door No.60, are one and the same, one cannot presume that the plaintiff was the brother of Palaniappan. According to me, Ex.A.6, will not support the case of the plaintiff. According to the plaintiff, the deceased Palaniappan was unmarried and he was not married to Nallammal. But it is seen from Ex.A.6, that Palaniappan was living with two other persons by name Palanichamy and Chenniappa Gounder but no explanation has been given by P.W.1, about the other two persons, who lived with Palaniappan. Further, the plaintiff was the competent person to speak about the relationship between him and his brother Palaniappan. 21. Therefore, the Trial Court has committed serious error in presuming the relationship between the plaintiff and Palaniappan on the basis of similarity in the father's name of Palaniappan and Chenniappa Gounder and also on the basis of Ex.A.6. According to me, Ex.A.6 will not prove that the plaintiff and the Palaniappan were brothers. 21. Therefore, the Trial Court has committed serious error in presuming the relationship between the plaintiff and Palaniappan on the basis of similarity in the father's name of Palaniappan and Chenniappa Gounder and also on the basis of Ex.A.6. According to me, Ex.A.6 will not prove that the plaintiff and the Palaniappan were brothers. When the plaintiff failed to prove that he was the brother of Palaniappan, he cannot maintain the suit for declaration and this aspect was not properly appreciated by the Trial Court. According to me, the burden is on the plaintiff to prove that he was the brother of Palaniappan and the plaintiff miserably failed to prove the same. Hence, the Point No. ii for consideration in this Appeal is answered against the respondents/plaintiff. Therefore, though the appellants are not the legal heir of Palaniappan, having held that the plaintiff was not the brother of Palaniappan, the suit filed by him for declaration was not maintainable and on that ground the suit is liable to be dismissed. 22. In the result, the judgment and decree of the Trial Court are set aside and the Appeal is allowed and the suit is dismissed. No costs.