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2018 DIGILAW 3264 (MAD)

M. Ramakrishnan v. Ramasamy Nadar (Died)

2018-09-26

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. Karthikeyan, J. S.A.No.1422 of 1996 had been filed by the plaintiff in O.S.No.68 of 1987 on the file of the Subordinate Court, Kuzhithurai. The said suit was dismissed by the Judgment and Decree dated 20.12.1993. The appeal filed against the Judgment in A.S.No.41 of 1994 had also been dismissed by Judgment and Decree dated 07.11.1995 by the District Court, Nagercoil. 2. S.A.No.1423 of 1996 had been filed by the plaintiff in O.S.No.19 of 1990. The said suit has been decreed by the Judgment and Decree dated 20.12.1993 by the Subordinate Court, Kuzhithurai. The appeal filed against the said Judgment in A.S.No.38 of 1994 had been dismissed by the District Court, Nagercoil by the Judgment and Decree dated 07.11.1995. 3. Cmp No.14053 of 1996 had been filed by the appellant in SA.No.1422 of 1996, seeking interim injunction restraining the respondents from alienating the suit properties pending disposal of the Second appeal. 4. O.S. No. 68 of 1987 and A.S.No.41 of 1994 and S.A. No. 1422 of 1996 : O.S. No. 68 of 1987 had been filed by Ramakrishnan Nadar S/o. Manuel Nadar, seeking partition and separate possession of his share in the suit properties. This suit had been filed against his father Manuel Nadar, paternal uncle Ramasamy Nadar, mother Ronickam, brother Chinna Nadar, sister Ammukutty and other similarly placed relatives. 5. According to the plaintiff, the plaint schedule properties originally belonged to Kochan Nadar S/o.Padmanaban Nadar. He died leaving behind Manuel Nadar/first defendant and Ramasamy Nadar/second defendant. It was stated that Kochan Nadar was born as a Hindu and died as a Hindu. His properties devolved upon his two sons, the first and second defendants. The first defendant also purchased properties for the income derived from the family properties. The second defendant moved out of the joint family after his marriage. It was stated that the first defendant was a born Hindu. It was also stated that at the time of filing suit he was not mentally sound for the past seven years due to his old age and diseases. In the plaint, the plaintiff stated that he understood that the first defendant had created some documents in favour of defendants-4 to 9. The plaintiff claimed that he was entitled to 1/3 share to all the plaint schedule properties except in item Nos.7 & 8. He claimed that he had demanded partition. In the plaint, the plaintiff stated that he understood that the first defendant had created some documents in favour of defendants-4 to 9. The plaintiff claimed that he was entitled to 1/3 share to all the plaint schedule properties except in item Nos.7 & 8. He claimed that he had demanded partition. Since the defendants did not accede to it, the suit had been filed, seeking partition and separate possession. 6. The third defendant Chinna Nadar and the fourth defendant Ammukutty filed their written statements. They were the brother and sister of the plaintiff. By the time, they had filed written statement the first defendant/father had died. It was claimed that he died as a Christian. He converted to Christianity at the time of his marriage to the third defendant which was conducted at Ilavilai Roman Catholic Church. Both the first defendant and his father Kochan Nadar converted to Christianity. It was therefore stated that the properties were not coparcenary properties. The averments in the plaint about the existence of an undivided Hindu joint family was denied. It had also been specifically denied that the first defendant was a mentally and physically affected person at the time of the suit. It was further stated that the first defendant died leaving behind a Will. It was also stated that the Will had become effective and the legatees were holding the properties in accordance with the same. It was stated that since the first defendant was a Christian, the claim of the plaintiff for partition has to be rejected. 7. The second defendant Ramasamy Nadar and his wife Gnanasoundari, seventh defendant had also filed their written statement. In the written statement, they disputed the claim of the plaintiff for partition and separate possession. It was stated that item No.8 of the suit schedule properties was not liable to be partition in the suit. It was claimed that item No.8 exclusively belonged to the second defendant. It was stated that the suit should be dismissed. 8. The third defendant Ronickam wife of first defendant and the mother of the plaintiff also filed her written statement. She stated that her father-in-law Kochan Nadar died as a Christian. She got married with the first defendant at Ilavilai Roman Catholic Church. The first defendant had converted to Christianity. It was specifically stated that the first defendant did not have any mental infirmity. She stated that her father-in-law Kochan Nadar died as a Christian. She got married with the first defendant at Ilavilai Roman Catholic Church. The first defendant had converted to Christianity. It was specifically stated that the first defendant did not have any mental infirmity. It was also stated that the plaintiff did not even participate in the funeral ceremony of his father. It was stated that the first defendant had dealt with the properties and that he had also executed a Will. It was therefore stated that the plaint should be dismissed. 9. A joint trial was conducted along with O.S.No.19 of 1990 which had been filed by Chinna Nadar and Ammukutty, the son and daughter of Manuel Nadar against Ramakrishnan their brother, seeking declaration of title and injunction and seeking protection of possession. 10. During the trial, O.S.No.68 of 1987 was dismissed and O.S.No.19 of 1990 was decreed. As against the dismissal of O.S.No.68 of 1987, A.S.No.41 of 1994 was filed. That appeal was dismissed leading to the filing of S.A.No.1422 of 1996. 11. O.S.No.19 of 1990, A.S.No.38 of 1994 and S.A.No.1423 of 1996 : O.S.No.19 of 1990 was originally filed as O.S.No.408 of 1985 before the District Munsif Court, Kuzhithurai. It was subsequently transferred to the Subordinate Court, Kuzhithurai and renumbered as O.S.No.19 of 1990. The said suit had been filed by Chinna Nadar and Ammukutty, both children of Manuel Nadar against their brother Ramakrishnan. They sought declaration of title with respect to the suit schedule properties and injunction restraining the defendant from interfering with their peaceful possession. It was stated that the suit properties in Nattalam Village originally belonged Aron Nadar from whom their father Manuel Nadar purchased the properties under document No.3697 dated 26.01.1944. He had executed a gift deed in favour of the plaintiff. The plaintiff is in possession. The plaintiff claimed declaration of title and injunction, hence the suit had been filed. 12. The defendant had filed written statement. He claimed that the property was an ancestral property. He further claimed that he was entitled to 1/3 share in the property. He denied allegations that a gift deed had been executed by the father with respect to the propety. He stated that the suit should be dismissed. 13. As stated above, this suit was decreed and the appeal filed by the defendant was also dismissed leading to file S.A.No.1423 of 1996. 14. He denied allegations that a gift deed had been executed by the father with respect to the propety. He stated that the suit should be dismissed. 13. As stated above, this suit was decreed and the appeal filed by the defendant was also dismissed leading to file S.A.No.1423 of 1996. 14. O.S.No.68 of 1987 and O.S.No.19 of 1990 : It must be mentioned that witnesses were examined in O.S.No.68 of 1987 consequently the term plaintiff would mean the plaintiff in O.S.No.68 of 1987 and the term defendants would mean the defendants in O.S.No.68 of 1987. 15. On the basis of the pleadings which had been mentioned above, the following issues were framed by the Subordinate Court, Kuzhithurai. 1. Whether the plaintiff and the defendants were Hindus or Christians by birth? 2. Whether the suit schedule properties were self-acquired properties of the Manuel Nadar? 3. Whether the plaintiff is entitled to partition and seprate possession as claimed in O.S.No.68 of 1987.? 4. Whether the relief of declaration and permanent injunction should be granted to the plaintiff in O.S.No.19 of 1990? 5. What are the shares of the parties in the suit properties? 6. To what relief’s of the parties entitled to? 16. During trial, the plaintiff has examined himself as P.W.1. The defendants-2, 5, 9, 6 and 3 were examined as D.W.1 to D.W.5 and an independent witness Father Joseph was examined as D.W.6. The plaintiff marked Ex.A.1 to Ex.A.12. Ex.A.2 is the community certificate of the plaintiff. Ex.A.3 is the transfer certificate of the sixth defendant. Ex.A.4 is the transfer certificate of the tenth defendant. Ex.A.5 is the community certificate of the fifth defendant. Ex.A.6 is the certificate issued by the School of the fifth defendant. Ex.A.7 is the marriage invitation of the sixth defendant. 17. On the side of the defendants Ex.B.1 to Ex.B.60 were marked. Ex.B.8 is the marriage certificate of Manuel Nadar. Ex.B.9 is the Tasildar certificate Ex.B.55 is the photograph and Ex.B.56 is the negative and Ex.B.57 is the receipt for taking photograph of the cemetery of Manuel Nadar. Ex.B. 60 is the marriage register extract. The other documents related to dealing with the property by Manuel Nadar and revenue tax documents. 18. Ex.B.8 is the marriage certificate of Manuel Nadar. Ex.B.9 is the Tasildar certificate Ex.B.55 is the photograph and Ex.B.56 is the negative and Ex.B.57 is the receipt for taking photograph of the cemetery of Manuel Nadar. Ex.B. 60 is the marriage register extract. The other documents related to dealing with the property by Manuel Nadar and revenue tax documents. 18. On the basis of the oral and documentary evidence, the learned Subordinate Judge held, appreciating the evidence of D.W.5 Ronickam who was the third defendant and wife of Manuel Nadar and the mother of the plaintiff that her marriage was solemnized according to Christian rituals in a Roman Catholic Church and also held that it was proved that Manuel Nadar was buried as a Christian. Therefore, the learned Subordinate Judge came to the conclusion that Manuel Nadar was a Christian by conversion. He rejected the school certificates of the children of Manuel Nadar and stated that they cannot be relied upon to determine the religion of a person. In view of the same, O.S.No.68 of 1987 was partially allowed and partition was granted and shares were allotted on the basis that the family was a Christian family and not as Hindus as sought for in the plaint. O.S.No.19 of 1990 was decreed. 19. The Judgment and Decree in both suits were taking up in appeal before the District Court, Nagercoil. A common Judgment was delivered on 07.11.1995. The learned District Judge observed that the primary point to be determined was whether the parties were Hindus or Christians. The learned District Judge reappraised the evidences and found that Manuel Nadar was a Hindu by birth. His father Kochan Nadar was also Hindu. The third defendant was his wife. He also considered Ex.B.8 which reflected that the marriage between Manuel Nadar and the third defendant was conducted according to Christian Religion Rites. He also held that Manuel Nadar converted to Christianity at the time of marrige. It was found that in the said marriage that the name of the third defendant was given as Therasammal and he relied on Ex.B.9 which was a certificate given by the Tahsildar that Ronickam and Therasammal were one of the same person. He also found that Manuel Nadar was buried according to Christian Rites. He also agreed that the learned Subordinate Judge that the religion of a person cannot be determined from the school certificates. He also found that Manuel Nadar was buried according to Christian Rites. He also agreed that the learned Subordinate Judge that the religion of a person cannot be determined from the school certificates. He therefore, held that the Manuel Nadar was a Christian at the time of his death and consequently upheld the priliminary decree for partition as granted by the learned Subordinate Judge in O.S.No.68 of 1987. He also confirmed the decree in O.S.No.19 of 1990. 20. Challenging the said common Judgment the plaintiff in O.S.No.68 of 1987 who was the defendant in O.S.No.19 of 1990 had filed the present Second appeals. 21. C.M.P. No.14053 of 1996 had also been filed by the plaintiff in S.A.No.1422 of 1996. This petition has been filed, seeking an order of injunction restraining the respondents from dealing with the properties. Since Judgment is delivered in the main Second appeal itself this petition does not survive any longer. Hence this petition is dismissed. 22. The second appeal were admitted on the following substantial questions of law : 1. When all the documents produced by the plaintiff and the defendants except the documents which were obtained after suit show that the deceased Manuel Nadar as 'Hindu' is the learned Subordinate Judge right in holding that the said Manuel Nadar is only a Christian? 2. When the Priest examined on behalf of the defendants as D.W.6 having admitted that the marriage register does not contain the signature of the parties and the witnesses still is the learned Subordinate Judge right in considering the said document in coming to the conclusion that Manuel Nadar is a Christian? 3. When almost all the documentary evidence including the plaint filed by the defendants clearly show Manuel Nadar only as a Hindu is the learned Subordinate Judge right in granting relief on the basis of Manuel Nadar died as a Christian?. 23. It must be mentioned that the three substantial questions of law revolved around re-appreciation of the evidences already on record. The trial Court and the first Appellate Court have established the following facts. 1. that Manuel Nadar was born a Hindu; 2. that Manuel Nadar married the third defendant Ronickam; 3. that Manuel Nadar and Ronickam are parents of the plaintiff in O.S.No.68 of 1987 and the plaintiff in O.S.No.19 of 1990; 4. The trial Court and the first Appellate Court have established the following facts. 1. that Manuel Nadar was born a Hindu; 2. that Manuel Nadar married the third defendant Ronickam; 3. that Manuel Nadar and Ronickam are parents of the plaintiff in O.S.No.68 of 1987 and the plaintiff in O.S.No.19 of 1990; 4. that the Manuel Nadar died a Christian and his death ceremonies were performed according to Christian Rites. 24. The only issue now to be addressed is whether the marriage certificate Ex.B.8 which signifies marriage between Manuel Nadar and Therasammal and Ex.B.9 which indicates that Therasammal and Ronickam are one and the same person have been properly considered by the trial Court and the First Appellate Court. The evidence of D.W.6/Father Joseph would also have to be appreciated in its proper perspect. 25. The substantial questions of law revolved around the interpretation of Ex.A.2 dated 06.07.1961 which is the community certificate of the plaintiff, Ex.A.3 dated 13.04.1966 transfer certificate of Gowri Amma, Ex.A.4 dated 05.09.1964 is the transfer certificate of Thangammal, Ex.A.5 dated 13.07.1964 is the community certificate of Ammukutty. Ex.A.6 dated 09.11.1988 is the School joining certificate of Chinna Nadar. Ex.A.7 dated 22.04.1985 is the marriage invitation of Gowri Amma. 26. These documents revealed that the said individuals were Hindus. A substantial question has been raised around these documents. Both the Courts below had stated that these documents would indicate that the individuals mentioned would have been Hindus at the time of the documents were issued. But it cannot be presume that the said individuals continued to be Hindus. The primary purpose for issue of all these documents were to indicate that they studied in a particular school. The significant aspects on which the religion of a person can be determined are the ceremonies performed at the time of his birth, marriage and death. In so far as, marriage is concerned Ex.B.8 had been produced, This document was dated 11.09.1929. There need not be witnesses to speak about the said document. The actual bride herself is available. She was the third defendant. She was examined as D.W.5. She clearly stated that she got married in a Roman Catholic Church at Ilavilai with Manuel Nadar. This evidence by her/the mother of the plaintiff has to be taken as convincing and acceptable evidence. The lady had with stood cross examination. The actual bride herself is available. She was the third defendant. She was examined as D.W.5. She clearly stated that she got married in a Roman Catholic Church at Ilavilai with Manuel Nadar. This evidence by her/the mother of the plaintiff has to be taken as convincing and acceptable evidence. The lady had with stood cross examination. Issues were raised over the genunity of Ex.B.8 by the learned Senior Counsel by pointing out the name of the village and the name given in the certificate. This had been explained by the learned counsel for the respondents who stated that it is a custom in Kanyakumari District that any individual would be identified by the name of their house and also by the name of the village. "Illam" would indicate the name of the house and the village name would be different. Ex.B.9 is the certificate issued by the Tahsildar, in which he had stated that the Ronickam and Therasammal are one and the same person. There is no reason to doubt the said certificate. Moreover, the evidence of D.W.6/Father Joseph is very clearl and lucid. He had produced the marriage register which was dated 11.09.1929 and marked as Ex.B.60. This clearly shows the performance of the marriage between Manuel Nadar and Therasammal at the Church. 27. It is very painful to note that the plaintiff in his greed for more share in the property had challenged the religion and name and identity of his own mother. This cannot be permitted. It is prevented. Ex.B.55 is the photograph of the cemetery of Manuel Nadar which clearly shows that he was buried as a Christian. Ex.B.56 is the negative of the photo and Ex.B.57 is the receipt for taking the photograph. 28. In view of the above discussion on facts, I hold that both the Second appeals must suffer an order of dismissal and the Judgement and Decree of both the trial Court and the lower Appellate Court does not require any interference. 29. In the result, (i) S.A.Nos.1422 and 1423 of 1996 are dismissed with costs. (ii) The common Judgment and Decree dated 07.11.1995 in A.S.Nos.38 and 41 of 1994 passed by the learned District Judge, Nagercoil is confirmed. (iii). The common Judgement and Decree dated 20.12.1993 made in O.S.Nos.68 of 1987 and 19 of 1990 passed by the learned Subordinate Judge, Kuzhithurai is confirmed. (iv). (ii) The common Judgment and Decree dated 07.11.1995 in A.S.Nos.38 and 41 of 1994 passed by the learned District Judge, Nagercoil is confirmed. (iii). The common Judgement and Decree dated 20.12.1993 made in O.S.Nos.68 of 1987 and 19 of 1990 passed by the learned Subordinate Judge, Kuzhithurai is confirmed. (iv). CMP No.14053 of 1996 is dismissed.