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2014 DIGILAW 852 (MAD)

Ramanatha Mudhaliyar v. Kalyanasundravadivoo

2014-04-04

G.CHOCKALINGAM

body2014
JUDGMENT 1. Challenge in this second appeal is to the judgment and decree, dated 18.01.2005 passed in A.S. No. 115 of 2004 by the Principal District Judge, Tirunelveli, partly allowing the judgment and decree passed in O.S. No. 55 of 2001 on the file of the Principal Sub Judge, Tirunelveli, dated 30.03.2004. 2. The respondents herein as plaintiffs have instituted Original Suit No. 55 of 2001 on the file of the Principal Sub Judge, Tirunelveli for the relief of partition, wherein the present appellant has been shown as defendant. 3. It is averred in the plaint that the 1st plaintiff is the wife and the plaintiffs 2 to 4 are the sons and daughter of one Shanmugasundram. The said Shanmugasundram is the only son of the defendant. The defendant’s father name is V.P.S. Shanmugasundaraperumal Mudaliar and he is having three sons, namely Ramanatha Mudaliar (Defendant), Shankaranaraya Mudaliar and Sambasivam Mudaliar. The suit property originally belonged to the father of the defendant, namely V.P.S. Shanmugasundaraperual Mudaliar. After the death of V.P.S. Shanmugasundarperumal Mudaliar, on 08.08.1938 his three sons have entered into a partition agreement. In the said partition, the 2nd schedule property was allotted to the share of the defendant. As per the partition deed, items 4 to 7 were allotted to the share of the two wives of Shanmugasundaraperumal Mudaliar, viz., Madathiammal and Ayudaiammal and that on 04.02.1958 Madathiammal died and Ayudaiammal also died on 12.11.1958. After their death, the defendant and his brothers were in possession and enjoyment of the joint family properties. In the meanwhile, the defendant’s brother Shankaranaya Mudaliar died leaving behind his wife Parvathiammal and two daughters. Thereafter, the said Parvathiammal filed a suit in O.S. No. 37 of 1959 on the file of the District Munsif Court, Tirunelveli, seeking partition in the joint family properties and in the said suit on 30.03.1960, a preliminary decree was passed. In the preliminary decree, the defendant and his brother Sambasiva Mudaliar and Shankaranarayana Mudaliar’s wife Parvathiammal were allotted 1/3rd share each and thereafter final decree was passed. The shares allotted to the defendant as per the partition deed, dated 08.08.1938 and as per the final decree passed in O.S. No. 37 of 1959 are shown as suit schedule properties. In the preliminary decree, the defendant and his brother Sambasiva Mudaliar and Shankaranarayana Mudaliar’s wife Parvathiammal were allotted 1/3rd share each and thereafter final decree was passed. The shares allotted to the defendant as per the partition deed, dated 08.08.1938 and as per the final decree passed in O.S. No. 37 of 1959 are shown as suit schedule properties. When the properties were allotted to the share of the defendant, they were shown as ancestral properties and hence, the 1st plaintiff’s husband was entitled to half share in the undivided property and the 1st plaintiff’s husband and the defendant were in joint possession and enjoyment of the undivided shares. On 28.08.1983, Shanmugasunda Mudaliar died leaving behind him the plaintiffs as his legal-heirs. Thereafter, the plaintiffs and the defendant are in joint possession and enjoyment of the suit properties. The defendant is having three daughters and they got married before 1975 and hence, they have no right in the suit properties. When the 1st plaintiff’s husband was alive, he and the defendant, being the brother of the 1st plaintiff’s husband were jointly settled some portions of the properties and the remaining portions are mentioned in the suit scheduled properties. Till date, the plaintiffs and the defendant are in joint possession and enjoyment of the suit properties. When that is the position, on 20.02.2001 the defendant has given advertisement in Dinamalar Newspaper for sale of the suit 1st and 2nd items of properties. On 22.02.2001, the 2nd plaintiff has given a reply notice for the same stating that the suit properties are the joint family properties of the plaintiffs as well the defendant and the defendant has no right to sell the joint family properties. Since, the defendant has attempted to sell the joint family properties, the plaintiffs have filed the suit for partition. 4. The defendant filed a written statement, in which it is averred as follows: The suit filed by the plaintiffs is not maintainable in law. The plaintiffs have not mentioned in the plaint that what are all the properties allotted to the defendant in the partition deed, dated 08.08.1938 and which property has been allotted as per the decree passed O.S. No. 37 of 1959. The contention of the plaintiffs that the suit properties are the ancestral properties of the defendant is not true. The plaintiffs have not mentioned in the plaint that what are all the properties allotted to the defendant in the partition deed, dated 08.08.1938 and which property has been allotted as per the decree passed O.S. No. 37 of 1959. The contention of the plaintiffs that the suit properties are the ancestral properties of the defendant is not true. The defendant was allotted 3rd schedule property mentioned in O.S. No. 37 of 1959 and therefore, the 3rd schedule property is not the ancestral property. The defendant has purchased the 3rd schedule property out of his own earnings and in the year 1983, the defendant has constructed two thatched houses bearing Door Nos. 114-A and B respectively in the 3rd schedule property with 4 toilets. On 09.08.1972, Shanmugasundara Mudaliar has received Rs. 20,000/- from the defendant and given a receipt and from that onwards, the defendant was in separate possession by paying kists and that considering the family circumstances of the 2nd plaintiff, the defendant has allowed the 2nd plaintiff to reside in his house bearing door No. 114/B from 17.09.1994 onwards. Hence, the defendant prays for the dismissal of the suit. 5. The trial court, after considering the rival evidence adduced on either side, has decreed the suit as prayed for. Against the judgment and decree passed by the trial court, the defendant as appellant has preferred A.S. No. 115 of 2004 on the file of the first appellate court. The first appellate court, after hearing both sides and upon reappraising the evidence available on record, has partly allowed the appeal. Against the judgment and decree passed by the first appellate court, this second appeal has been preferred at the instance of the defendant as appellant. 6. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration: 1. Whether Ex.B2, B10, B11 and B14 prove that the appellant’s son was residing elsewhere and release his interest, whether the courts below were correct in holding that there is a Hindu Undivided Family (HUF) and joint possession? 2. Whether the respondents/plaintiffs were estopped and prevented from challenging Ex.B16 Will, a 68 year old document particularly when they admit Ex.A1, which is based on Ex.B16 Will? 3. Can the respondents/plaintiffs approbate and reprobate in saying that they would accept Ex.A1 but would not accept Ex.B16 Will? 7. 2. Whether the respondents/plaintiffs were estopped and prevented from challenging Ex.B16 Will, a 68 year old document particularly when they admit Ex.A1, which is based on Ex.B16 Will? 3. Can the respondents/plaintiffs approbate and reprobate in saying that they would accept Ex.A1 but would not accept Ex.B16 Will? 7. It is argued on the side of the appellant/defendant, the first appellate court, without appreciating the evidence on record and on the main question of law, partly allowed the appeal and the suit property originally belonged to the mother of the appellant/defendant Avudaiammal as life interest under Ex.A1, Partition Deed, dated 08.02.1938 and her life estate became absolute estate under Section 14(1) of the Hindu Succession Act and therefore, the the trial court ought to have dismissed the suit and the first appellate court also erred in holding that Ex.A1 partition deed was written on the basis of Ex.B16, Will dated 11.08.1933. 8. The learned counsel for the appellant/defendant further argued that the respondents/plaintiffs have estopped from challenging the Ex.B16 Will, because the Will is followed by the subsequent Partition Deed and the both the courts below have not come to the definite conclusion that the Partition Deed stands proved and therefore, the second appeal filed by appellant/defendant has to be allowed. 9. In this case, the trial Court has passed the decree as follows: 9i). The first appellate Court has passed the decree as follows: Against the judgment and decree of the trial Court, the plaintiffs have not preferred any appeal or cross-appeal and after the judgment and decree passed by the first appellate court also, the plaintiffs have not preferred any appeal or cross-appeal. 9ii). On the other hand, it is mainly argued on the side of the respondents/plaintiffs that even though Ex.B16 Will was 68 years old, the document was not proved as per Indian Evidence Act. But the appellant/defendant has not taken any effort to prove his liability. 10. 9ii). On the other hand, it is mainly argued on the side of the respondents/plaintiffs that even though Ex.B16 Will was 68 years old, the document was not proved as per Indian Evidence Act. But the appellant/defendant has not taken any effort to prove his liability. 10. It is further argued on the side of the respondents/plaintiffs that Ex.B16 Will has not been proved and proving of Will is the mere question of fact and therefore, the fact findings of the first appellate court cannot be questioned in the second appeal stage, since the question of fact has been already decided by both the courts below and in support of his contention, he relied upon the decisions reported in S. Narayana Reddy and Others v. S. Sai Reddy AIR 1990 AP 263 ; and Prema v. Nanje Gowda and Others AIR 2011 SC 2077 : (2011) 6 SCC 462 : LNIND 2011 SC 513. 11. Further, the learned counsel for the respondents/plaintiffs relied upon a judgment of this court reported in the case of Tmt. Nallammal v. Dhanshkodi, 2000 (IV) CTC 513 : LNIND 2000 MAD 733 in support of her contention, wherein it has been held that: “Code of Civil Procedure, 1908, Section 100-Lower appellate Court’s finding of fact should not be interfered with in second appeal so long as there is some material for arriving at suit finding by lower appellate court. “10. The lower appellate Court, as the final court of fact, has come to a proper conclusion with regard to the non-genuineness of the agreement, Ex.A2. As has been pointed out in the Supreme Court decision Taherakhatoon v. Salambin Mohammed, AIR 1999 SC 1104 that as long as there was some material for the rejection of the document, the Second Appellate Court ought not to interfere with the above said finding of fact reached by the lower Appellate Court.” 12. From the reading of the above said rulings, it is made clear that when the question of fact is decided by the first appellate court, the High court should not interfere with the above question of fact, which has become final. 13. From the reading of the above said rulings, it is made clear that when the question of fact is decided by the first appellate court, the High court should not interfere with the above question of fact, which has become final. 13. Further, it is an admitted fact that Ex.16 Will is 68 years old document and the same has to be proved according to Indian Evidence Act and there are so many modes available to prove the Will and even though, the original Will is available, it was not produced and therefore the certified copy of the Will alone was marked as Ex.B16 by summoning Sub-Registrar. 14. Further, nobody has been examined on the side of the appellant/defendant to prove that who has signed in the Will and who are the attesting witnesses etc., But on the side of the appellant/defendant, the certified copy of the Will has been marked by summoning the officials from the Sub Registrar Office and therefore, the Ex.B16 Will has not been proved according to Indian Evidence Act. 15. Further, the argument of the learned counsel for the appellant/defendant is that Ex.A.1 Partition Deed is no way connected to Ex.B16 Will. The said contention of the learned counsel for the appellant/defendant is not at all accepted since Ex.A1 is written only based on the Ex.B16. Therefore, the question of law raised by the appellant/defendant that since Ex.B16 Will is mentioned in Ex.A1 Partition Deed, Ex.B.16 Will stands proved is not at all acceptable. 16. Further, with regard to release deed alleged to have been executed by the appellant/defendant, it is contended that since one of the son relinquished his share and is residing somewhere and therefore, the properties are undivided joint family properties, is not acceptable one and there is no documents was produced on the side of the appellant/defendant to prove the above fact. Hence, this court is of the considered view that the both the courts below after analysing both oral and documentary evidence available on record have correctly come to the conclusion and therefore, no illegality or infirmity in the concurrent findings of the courts below and the second appeal is liable to be dismissed. 17. Accordingly, the substantial questions of law are answered. 18. In the result, the second appeal is dismissed and the judgment and decree of the first appellate court is confirmed. 17. Accordingly, the substantial questions of law are answered. 18. In the result, the second appeal is dismissed and the judgment and decree of the first appellate court is confirmed. Considering the facts and circumstances of the case, both the parties are bear their own costs. Appeal dismissed.