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2018 DIGILAW 2513 (MAD)

Sellappan (died) v. Ramaswamy

2018-08-13

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge, in this second appeal, is made to the Judgment and Decree dated 30.11.2004 passed in A.S.No.195 of 2002 on the file of the Principal District Court, Namakkal, reversing the Judgment and Decree dated 26.08.1997 passed in O.S.No.426 of 1990 on the file of the Additional District Munsif, Namakkal. 2. The second appeal has been admitted on the following substantial questions of law: “(i). Whether the learned Principal District Judge failed to follow the provisions of Order 41 Rule 25 C.P.C when new points were raised for the first time in appeal regarding the truth and genuineness of the Will, Ex.A2, the Court without giving an opportunity to the appellants to prove the same cannot decide the issue against the appellants? (ii). Whether the learned Principal District Judge was in error in overlooking that Section 65(c) of the Evidence Act which provides for letting in secondary evidence has been satisfied?” 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The appellants are the plaintiffs and they had laid the suit against the defendant for the reliefs of declaration and permanent injunction. 5. In brief, according to the plaintiffs' case, the suit property originally belonged to one Angayee by virtue of the sale deed dated 19.01.1924 and it is stated that Angayee had bequeathed the suit property in favour of the second plaintiff by way of a Will dated 20.06.1942. The second plaintiff is the son of Angayee's brother and accordingly, it is the further case of the plaintiffs' that the suit property has been in the possession and enjoyment of the plaintiffs as such and they had effected a partition in respect of the suit property and other properties belonging to them by way of a partition deed dated 21.04.1952 and it is stated that in the said partition, the suit property had been allotted in equal shares in favour of the plaintiffs 1 & 2 and accordingly, they had been enjoying the same as above stated jointly and while so, inasmuch as the defendant, without any authority, had interfered with their possession and enjoyment of the suit property, it is stated that they have been necessitated to lay the suit for appropriate reliefs. 6. 6. The defendant, in the written statement, has disputed the title of Angayee in respect of the suit property and according to him, Angayee has never owned the suit property nor enjoyed the same and according to the defendant, the suit property belonged to one Veerappa Gounder and he had mortgage the same in favour of one Kaliammal by way of the registered mortgage deed dated 27.10.1938 and entrusted the possession to the mortgagee i.e. Kaliammal and failed to redeem the mortgage and it is the further case of the defendant that he had taken the suit property on lease from Kaliammal by way of the registered lease deed dated 04.05.1972 and since then it is only the defendant, who has been in the possession and enjoyment of the suit property by paying kist etc., and therefore, the Will said to have been executed by Angayee in favour of the second plaintiff on 20.06.1942 is a concocted document and also contended that Angayee had no right to execute the Will in respect of the suit property in favour of the second plaintiff and further, stated that with a view of to grab the suit property, the plaintiffs have fraudulently included the suit property in the partition effected amongst themselves and also contended that as the original owner Kaliammal is no more and her LR's are now stationed at Malysia, it is stated that the plaintiffs, taking advantage of the same, had obtained patta in their absence and thereby, falsely claiming title to the suit property and hence, according to the defendant, there is no cause of action for the suit and the suit is liable to be dismissed. 7. Based on the materials placed on record by the respective parties, the trial Court was pleased to decree the suit as prayed for. Aggrieved over the same, the defendant preferred the first appeal and the first appellate Court, on an appreciation of the materials placed on record, was pleased to allow the appeal and thereby, dismissed the plaintiffs' suit and aggrieved over the same, the present second appeal has been preferred. 8. Aggrieved over the same, the defendant preferred the first appeal and the first appellate Court, on an appreciation of the materials placed on record, was pleased to allow the appeal and thereby, dismissed the plaintiffs' suit and aggrieved over the same, the present second appeal has been preferred. 8. The plaintiffs claim title to the suit property on the strength of three documents viz., the sale deed dated 19.01.1924 in favour of Angayee, the Will dated 20.06.1942 said to have been executed by Angayee in favour of the second plaintiff and the partition deed dated 21.04.1952 entered into amongst the plaintiffs. As rightly pointed out by the first appellate Court, the plaintiffs have not produced the original sale deed dated 19.01.1924 and also not produced the original Will dated 20.06.1942 and with reference to the same, the plaintiffs have not adduced any acceptable cause for the non production of the original documents. Particularly, when the second plaintiff is stated to have derived title to the suit property from Angayee by way of the above said Will, the original Will said to have been executed by Angayee in favour of the second plaintiff should have been produced. However, though PW1 examined on behalf of the plaintiffs would claim that the original Will had been produced before the Court, PW3, the son of the second plaintiff has admitted that the original Will is not in his custody and he and his father and others also enquired about the original Will. Thus, it is found that the main title deed, on the basis of which, the plaintiffs claim title to the suit property i.e. the Will had not been produced and only the copy of the same had been produced. From the evidence of PW1, as determined by the first appellate Court, it is seen that he has no direct knowledge about the above said Will. Even PW2 examined on behalf of the plaintiffs is found to have no direct knowledge about the same. The second plaintiff, upon whom, the suit property is stated to have been bequeathed under the said Will has not been examined. His son, who has been examined as PW3 is also not found to have any direct knowledge about the execution of the Will. The second plaintiff, upon whom, the suit property is stated to have been bequeathed under the said Will has not been examined. His son, who has been examined as PW3 is also not found to have any direct knowledge about the execution of the Will. It is thus found that all the witnesses examined on behalf of the plaintiffs are not competent to speak about the Will, the title document of the plaintiffs. Though PW3 has admitted that his father could be brought to the Court by arranging a car, however no effort had been taken by the plaintiffs to examine the second plaintiff in support of their case, particularly, as regards the proof of the Will. No effort has also been taken to examine the second plaintiff by way of a commission. With reference to the same, no plausible explanation is offered. 9. As regards the proof of Will marked as Ex.A2, according to the plaintiffs, on enquiry, they came to understand that the attestors as well as the scribe of the Will are not alive. It is stated by PW3 that with reference to the availability of the attestors and the scribe of the Will, they had enquired and enquired at the Registrar's office and was informed that they are not aware of the attestors of the Will. However, according to the plaintiffs, the scribe and attestors of the Will are not alive. However, with reference to the above said case of the plaintiffs, other than the mere assertion of PW3 and the plaintiffs, there is no proof to hold safely that the scribe and the attestors of the Will are not alive and therefore, the plaintiffs had been unable to examine them in support of the proof of the Will. Be that as it may, when the plaintiffs are able to identify the attestors, who had signed as witnesses in the Will, as rightly determined by the first appellate Court, the plaintiffs should have examined the family members of the attestors to, at least, prove the signatures of the attestors available in the Will as to the fact that the attestors' signatures are really available in the said document. However, the plaintiffs had not endeavoured to examine any person associated with the signatures of the attestors of the Will and thus, it is found that in toto, there is no acceptable evidence adduced on the side of the plaintiffs to establish the genuineness and validity of the Will, their title deed, rightly it has been held by the first appellate Court thereby that the plaintiffs have miserably failed to establish the proof of the Will as contemplated under law. In such view of the matter, when the plaintiffs have failed to establish that Angayee had a valid claim to the suit property other than marking the copy of the sale deed in the name of Angayee as Ex.A1 and when it has not been established that Angayee had acquired the suit property from the competent title holder and even assuming for the sake of arguments that Angayee had title to the suit property, when the plaintiffs have failed to establish that Angayee had bequeathed the suit property in favour of the second plaintiff by way of the Will dated 20.06.1942 and when the original Will has not been produced and no explanation with reference to the same is forthcoming on the part of the plaintiffs and furthermore, as above discussed, when the plaintiffs have failed to establish the authenticity and validity of the abovesaid Will in the manner known to law, the irresistible conclusion that could be arrived at is that the plaintiffs have miserably failed to establish their claim of title to the suit property as projected in the plaint. In such view of the matter, as rightly determined by the first appellate Court, the partition deed marked as Ex.A3 being a self serving document effected amongst the plaintiffs themselves by including the suit property also in the said deed, that by itself would not entitle to the plaintiffs to lay a valid claim of title to the suit property. No doubt, the plaintiffs have produced the patta documents marked as Exs.A4 & 26 in the name of the plaintiffs and also certain kist receipts as Exs.A5 to 24. No doubt, the plaintiffs have produced the patta documents marked as Exs.A4 & 26 in the name of the plaintiffs and also certain kist receipts as Exs.A5 to 24. However, when it is found that the plaintiffs have failed to establish the genuineness and validity of their alleged title deeds as above pointed out, it is found that the revenue documents, which had been issued consequence thereof, cannot be treated as equivalent to the title deeds, accordingly, it is seen that the first appellate Court has rightly not placed reliance upon the revenue documents projected by the plaintiffs for sustaining their claim of title to the suit property. The plaintiffs, as rightly pointed out by the first appellate Court, had also not endeavoured to examine any one of the neighbours of the suit property to establish that it is only the plaintiffs, who are in the possession and enjoyment of the suit property as projected by them. In toto, it is seen that the plaintiffs have miserably failed to establish their claim of title, legal possession and enjoyment of the suit property and in such view of the matter, the first appellate Court is justified in rejecting the plaintiffs' case for the reasons afore stated. 10. The first appellate Court had also gone into the claim of title to the suit property as projected by the defendant. According to the defendant, the suit property originally belonged to Veerappa Gounder and he had mortgage the same in favour of one Kaliammal on 27.10.1938, the registration copy of the mortgage deed has been marked as Ex.B4. It is further stated by the defendant that he had taken the suit property on lease from Kaliammal by way of the registered lease deed and the said document has come to be marked as Ex.B1. It is claimed by the defendant that inasmuch as the original owner Veerappa Gounder had failed to redeem the mortgage, thereby, the mortgagee Kaliammal had became the owner of the suit property and on the abovesaid document projected by the defendant plus the receipts issued by Kaliammal in favour of the defendant marked as Exs.B2 & B3 and the other documents of possession, the first appellate Court held that in the preponderance of probabilities, it is only the defendant, who is in the possession and enjoyment of the suit property. In any event, as rightly determined by the first appellate Court, the failure of the defendant in establishing his claim of title to the suit property would not automatically entitle the plaintiffs to obtain the reliefs sought for, without the plaintiffs establishing their claim of title to the suit property as projected in the plaint. Even as per the defence version, according to the defendant, he has set up title in favour of Veerappa Gounder and as also the mortgagee Kaliammal and according to the defendant, her legal heirs are settled at abroad and when the plaintiffs have failed to establish their claim of title or their predecessor in title viz., Angayee and when the defendant had set up a rival claim in the name of third parties and further when the plaintiffs have failed to establish their claim of legal possession and enjoyment of the suit property and particularly, when the plaintiffs have miserably failed to establish their title deed viz., the Will as above discussed, in toto, it is found that the plaintiffs are not entitled to obtain the reliefs of declaration and permanent injunction as prayed for. In such view of the matter, it is seen that the first appellate Court has analysed the materials placed on record by the parties concerned in the right perspective and after holding that the plaintiffs have miserably failed to establish their claim of title, legal possession and enjoyment of the suit property, is found to have rightly rejected the plaintiffs' case. 11. In the light of the above discussions, the contention of the plaintiffs' counsel that the first appellate Court has taken into consideration the new facts for rejecting the plaintiffs' case without providing an opportunity to the plaintiffs to buttress their version as such cannot be accepted in any manner. 11. In the light of the above discussions, the contention of the plaintiffs' counsel that the first appellate Court has taken into consideration the new facts for rejecting the plaintiffs' case without providing an opportunity to the plaintiffs to buttress their version as such cannot be accepted in any manner. When the plaintiffs have failed to establish the title deed viz., the Will as provided under law and even the authenticity of the same, it is found that the first appellate Court is justified in rejecting the plaintiffs' case and the first appellate Court has not rejected the plaintiffs' case merely on the footing that the plaintiffs have not produced the original Will and had only produced the copy of the same, on the other hand, the non production of the original Will was also taken as a ground by the first appellate Court for rejecting the plaintiffs' case and the same is not the sole ground for the first appellate Court to disbelieve the plaintiffs' case. The reasons and conclusions of the first appellate Court for rejecting the plaintiffs' case therefore do not warrant any interference. The substantial questions law formulated in the second appeal are accordingly, answered. In conclusion, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.