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2014 DIGILAW 399 (MAD)

Sundariammal v. Amudha

2014-02-19

R.KARUPPIAH

body2014
Judgment : 1. The appellants, who are the defendants in the suit filed this Second Appeal against the judgment and decree dated 11.09.2003 made in A.S.No.44 of 2003 on the file of Principal District Court, Vellore District confirming the judgment and decree dated 22.01.2003 made in O.S.No.165 of 1996 on the file of Sub Court, Ranipet, Vellore District. 2. For the sake of convenience, the defendants in the suit referred as appellants and the plaintiff in the suit referred as respondent hereafter. 3. The respondent/plaintiff filed the suit for partition of 1/5th share in the suit properties. Briefly, the case of the respondent is that the suit properties were originally belonged to one Srinivasan, who died intestate on 29.06.1988. The respondent is the daughter of the deceased Srinivasan through his first wife viz., Vasantha. The mother of the respondent had left the respondent while she was 45 days child. The respondent was brought up by her grandmother namely Sampoornammal, who is the mother of the said Vasantha. The grandmother arranged the marriage of the respondent with one Arumugam. After, the mother of respondent (i.e.,) Vasantha had left the Srinivasan, the first appellant has married the above said Srinivasan as second wife. The second appellant is the daughter and the appellants 3 and 4 are sons of the deceased Srinivasan through the first appellant. The said Srinivasan died intestate leaving behind the respondent and the appellants as LRs and they succeeded to the suit schedule properties of Srinivasan and they are in joint possession and enjoyment of the properties as joint owners. From 15.08.1996 onwards the appellants denying the share of the respondent and hence the respondent issued registered legal notice on 24.08.1996 calling upon the appellants to divide the schedule properties and allot 1/5th share to the respondent. The appellants sent reply notice dated 27.08.1996 with false and vexatious contention and also denied that the respondent is not the daughter of deceased Srinivasan. Therefore, the respondent filed the suit for her 1/5th share in the suit properties. 4. The appellants who are the defendants in the suit filed written statement in which it is admitted that the suit properties were originally belonged to Srinivasan and he was in possession and enjoyment of the same as absolute owner. Therefore, the respondent filed the suit for her 1/5th share in the suit properties. 4. The appellants who are the defendants in the suit filed written statement in which it is admitted that the suit properties were originally belonged to Srinivasan and he was in possession and enjoyment of the same as absolute owner. But the appellants denied the contention of the respondent that the respondent is daughter of Srinivasan through his first wife viz., Vasantha and she was brought up by her grandmother and she was given married to one Arumugam. It is also denied that the appellants and the respondent succeeded to the suit properties after the death of Srinivasan and they are in joint possession and enjoyment of the suit properties as joint owners. The suit properties are not properly described and the boundaries and measurements given are also not correct. According to the appellants, the deceased Srinivasan married one Vasantha, as his first wife and after marriage, the said Vasantha did not lived with Srinivasan for long period and left her husband and got divorce from Srinivasn as per caste customs. After the said divorce, the above said Vasantha married one R.Gopal Achari and the said Vasantha gave birth to the respondent and subsequently two other issues. Therefore, the respondent is daughter of Gopal Achari. The respondent did not lived with the said Srinivasan or with the appellants at any point of time. The respondent was also not brought up by her maternal grandmother/Sampoornammal and Sampoornammal did not performed the respondent's marriage. Only the said R.Gopal Achari performed the respondent's marriage. Therefore, the respondent is not the daughter of the deceased Srinivasan. The properties left by the said Srinivasan are succeeded by the appellants Court fees also not correctly paid by the respondent. Therefore, the respondent is not entitled to 1/5 share in the suit properties as prayed for in the plaint. 5. The Trial Court has framed five issues for consideration. Before the Trial Court, on the side of respondent/plaintiff examined two witnesses as PW1 and PW2 and marked five documents as Exs.A1 to A5. On the side of appellants/defendants, first appellant alone deposed as DW1 and marked two documents as Exs.B1 and B2. 5. The Trial Court has framed five issues for consideration. Before the Trial Court, on the side of respondent/plaintiff examined two witnesses as PW1 and PW2 and marked five documents as Exs.A1 to A5. On the side of appellants/defendants, first appellant alone deposed as DW1 and marked two documents as Exs.B1 and B2. The Trial Court considered the said oral and documentary evidence adduced on either side and passed a preliminary decree and allotted 1/5 share to the respondent in the suit properties as prayed for in the plaint. Aggrieved over the above said preliminary decree and judgment passed by the Trial Court the appellants preferred first appeal in AS.No.44 of 2003. The first appellate Court confirmed the said preliminary decree and judgment passed by the Trial Court and dismissed the appeal. Aggrieved over the above said concurrent findings of both the Courts below, the appellants/defendants preferred this second appeal before this Court. 6. The Second Appeal is admitted on the following substantial questions of law:- (i) Whether the courts below rightly held that the plaintiff(respondent) is entitled 1/5th share in the suit schedule mentioned property? (ii) Whether the Courts below rightly accepted that the court fee paid on the plaint is correct? (iii) Whether the plaintiff(respondent) valued the suit under Section 37(2) instead of under Section 37(1) is correct? (iv) Whether the plaintiff(respondent) has properly identified the property and boundaries of the property? 7. Heard the learned counsel appearing for the appellants and the respondent. Perused the materials available on record. 8. Admittedly, the suit properties originally belonged to one Srinivasan. It is also admitted that the deceased Srinivasan married one Vasantha as his first wife. The case of the appellants is that the above said Vasantha left her husband and got divorce from Srinivasan as per caste customs and after divorce, the said Vasantha married one Gopal Achari. After her marriage with Gopal Achari, Vasantha gave birth to the respondent and subsequently to two other issues and therefore, the respondent is daughter of Gopal Achari through Vasantha and not the daughter of Srinivasan and hence, the respondent is not entitled to any share in the suit properties. 9. The learned counsel for the appellants submitted that the courts below failed to consider the documents namely the respondent wedding card in which it is mentioned the name of respondent as daughter of Gopal Achari. 9. The learned counsel for the appellants submitted that the courts below failed to consider the documents namely the respondent wedding card in which it is mentioned the name of respondent as daughter of Gopal Achari. Further the learned counsel pointed out that the courts below failed to accept the legal heir certificate produced by the appellants and wrongly accepted the evidence of PW1 and PW2 and decreed the suit as prayed for and hence, the findings of both the Courts below are not valid in law. The learned counsel further pointed out that both the Courts below have not considered the properties at Sholinghur bearing No.10/A, 10/B and 11 at Market Street is ancestral properties and the description of other properties are also not correct. 10. Both sides admitted that the owner of the properties namely Srinivasan already married one Vasantha as his legal wedded 1st wife and the above said fact is not in dispute. It is also admitted that the 1st appellant namely, Sundariammal is 2nd wife of the deceased Srinivasan and the appellants 2 to 4 are children through the 2nd wife of Srinivasan. The main dispute between parties is that whether the respondent namelyAmudha is daughter of the above said Srinivasan through 1st wife, namely Vasantha as contended by the respondent or the respondent is the daughter of Vasantha through one Gopal Achari as contended by the appellants. 11. In the instant case, the respondent has specifically pleaded in the plaint that the owner of the suit properties namely Srinivasan married Vasantha as his 1st wife and the respondent namely Amudha is daughter of the deceased Srinivasan through his 1st wife Vasantha. To prove the above said contention of the respondent, the respondent herself deposed as DW1 and also examined the grand mother of the respondent namely Sampoornammal as PW2. PW2, who is aged about 80 years has clearly deposed as the 1st respondentis daughter of Vasantha through Srinivasan. On the side of the respondent has produced document Ex.A1-Death Certificate of the owner of the properties namely Srinivasan. Respondent has also produced Ex.A2 birth certificate of the respondent in which, it is stated as the respondent's father Srinivasan and mother as Vasantha. The above said birth certificate was registered by competent authority on 14.11.1968 itself. On the side of the respondent has produced document Ex.A1-Death Certificate of the owner of the properties namely Srinivasan. Respondent has also produced Ex.A2 birth certificate of the respondent in which, it is stated as the respondent's father Srinivasan and mother as Vasantha. The above said birth certificate was registered by competent authority on 14.11.1968 itself. On the side of the appellants, have not contended that the above said birth certificate Ex.A2 not relating to the respondent. It is not the case of the appellants that except the respondent, any other female child was born to Srinivasan through Vasantha. Therefore, the above said document clearly proved that the respondent is daughter of Srinivasan and 1st wife Vasantha, as contended by the respondent side. Further, the respondent has marked Ex.A3 legal notice issued to the appellants by stating that the respondent is daughter of the deceased Srinivasan and his 1st wife Vasantha. The appellants sent a reply notice marked as Ex.A4. Further, on the side of the appellant has marked Ex.A5 legal notice issued by Srinivasan to Vasantha and another dated 21.11.1969 in which, para (2) reads as under:- "Therefore, I hereby call uponyou to return with the jewels and the child to my client's house and restore marrital life within a week from the date of receipt of this notice. Failing compliance, my client would be forced to take such legal steps as he would be advised in the matter making you liable for the incidental costs thereto." 12. As rightly pointed out by the learned counsel for the respondent till date of the above said notice dated 21.11.1969, the marriage between Srinivasan and Vasantha was not dissolved. Further, the above said Ex.A5 legal notice issued by the deceased Srinivasan clearly proved that the respondent is daughter of Srinivasan and Vasantha. Therefore, from the above said oral and documentary evidence adduced on the side of the respondent clearly proved that the respondent is the daughter of Srinivasan through his 1st wife namely Vasantha. 13. The case of the appellants is that the owner of the property namely Srinivasan had married Vasantha as his wife but the above said Vasantha did not lived with Srinivasan for long period and left her husband and therefore, Srinivasan got divorce as per caste customs. 13. The case of the appellants is that the owner of the property namely Srinivasan had married Vasantha as his wife but the above said Vasantha did not lived with Srinivasan for long period and left her husband and therefore, Srinivasan got divorce as per caste customs. It is also contended that after the above said divorce, Vasantha married one Gopal Achari and the respondent is daughter of Vasantha through the 2nd husband Gopal Achari and therefore, the respondent is not entitled to any right in the properties of Srinivasan. As rightly pointed out by the learned counsel for the respondent, except the pleadings in the written statement, no oral and documentary evidence to prove that the marriage between Srinivasan and 1st wife Vasantha was legally dissolved by caste customs. A perusal of oral evidence of DW1, the sole witness examined on the side of the appellant namely Sundari revealed that the above said witness not at all deposed as there was a divorce between Vasantha and Srinivasan as per caste customs. The above said witness only deposed as she is not aware of anything about the divorce or whether the respondent is the daughter of Srinivasan and Vasantha. Therefore, no specific denial on the side of the appellants at the time of evidence. 14. The learned counsel appearing for the appellant only relied on Ex.B1 legal heir certificate issued on 19.08.1994, (i.e.,) two years prior to the filing of the suit and also relied another document Ex.B2 alleged marriage invitation of the respondent. As rightly pointed out by the learned counsel for the respondent, the above said marriage invitation can be printed at any time and not proved by examining reliable oral evidence. Further, the learned counsel pointed out that after the death of Srinivasan, the appellants without informing to the respondent falsely obtained legal heir certificate from Tahsildar. As rightly pointed out by the learned counsel for the respondent, only on the basis of the above said Ex.B1 certificate, it cannot be presumed that the respondent is not the daughter of Srinivasan through 1st wife namely Vasantha. Therefore, both the courts below have discussed about the oral and documentary evidence adduced on either side and correctly held that the respondent is daughter of Vasantha through Srinivasan and she is also one of the legal heirs of the deceased. Therefore, both the courts below have discussed about the oral and documentary evidence adduced on either side and correctly held that the respondent is daughter of Vasantha through Srinivasan and she is also one of the legal heirs of the deceased. Therefore, the respondent is entitled to 1/5 share in the suit properties as a daughter of the deceased Srinivasan. Further, this partition suit has been filed by the respondent as co-owner of the suit properties against other co-owners and hence, the court fee paid under Section 37(2) of Court Fees Act is correct, as rightly held by both the courts below. The appellant is not proved by any oral and documentary evidence to show that the description of properties are wrongly given in the plaint. DW1 also not deposed before trial court and not marked any document to prove the same. 15. Therefore, from the above said discussion, it is clear that the respondent is entitled to 1/5 share in the suit properties and the Court fee paid by the respondent is correct and the description of properties have been correctly given and the findings of both the courts below are not perverse or illegal and answered all the substantial questions of law accordingly. In view of the same, this second appeal is to be dismissed and confirmed the decree and judgment of both the courts below. 16. In the result, the second appeal is dismissed with costs. Consequently connected civil miscellaneous petition is closed.