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2018 DIGILAW 553 (SC)

Murugesan v. P Sivanandam

2018-04-03

R.BANUMATHI, RANJAN GOGOI

body2018
ORDER 1. Leave granted. 2. We have heard the learned counsels for the parties. 3. One Palani Gounder had a first wife Palniammal through whom she had a daughter one Subbathal. The present appellants are the legal heirs of Subbathal. Palani Gounder married for the third time. The third wife was one Chinnammal who had a son and two daughters. 4. Chinnammal and her three children were the defendants in the said suit. The learned trial Court decreed the suit which decree was affirmed in First Appeal. The said decree has been reversed in Second Appeal by the High Court giving rise to the present appeal. 5. The plaintiff, Subbathal, to bring home her case and her claim to partition relied on three documents, viz., Exhibit A- 1, Exhibit A-2 and Exhibit A-3 which are the death certificate of Palniammal; death certificate of Palani Gounder and the heir- ship certificate issued by the Village Tahsildar. In addition, the plaintiff had examined P.W.2 Muthusamy who is the son of the brother of Palani Gounder. P.W. 2 in his deposition had stated that being a family member he was aware of the marriage between Palani Gounder and Palniammal and the birth of the plaintiff Subbathal from that marriage. The defendants introduced Exhibit B-4 on record which is a heir-ship certificate issued by Coimbatore North Revenue Divisional Officer to the effect that they are the legal heirs of Palani Gounder. 6. The learned trial Court took the view that neither the birth certificate nor the heir-ship certificate relied upon by the plaintiffs were proved to be a part of the village revenue records. However, accepting the version put forward by P.W.2 the learned trial Court thought it appropriate to decree the suit for partition. The First Appellate Court concurred with the said view. In Second Appeal the High Court questioned the concurrent findings of fact firstly on the ground that if the documents relied upon by the plaintiffs had not been proved and, in fact, had been held to be fraudulent by the Forums below, the claim of partition could not have been decreed on the basis of the oral evidence of P.W.2 alone. The High Court also deemed it proper to rely on Exhibit B-4 document which certifies the defendants to be the legal heirs of Palani Gounder. 7. The High Court also deemed it proper to rely on Exhibit B-4 document which certifies the defendants to be the legal heirs of Palani Gounder. 7. Having considered the matter we are of the view that the High Court while hearing a Second Appeal and seeking to answer a substantial question(s) of law within the meaning of the said expression as appearing in Section 100 of the Code of Civil Procedure, 1908 ought not to have disturbed the concurrent findings of fact recorded by the two Forums below. If two Courts, on an elaborate consideration of the materials on record, had thought it proper to take the view that the claim of the plaintiffs stood proved by the oral evidence of P.W. 2, notwithstanding the defects in the documents Exhibit A-1, Exhibit A-2 and Exhibit A-3, we do not see how the learned trial Court and the First Appellate Court could have been understood by the High Court to have erred on a substantial question of law in relying on the oral evidence of P.W. 2. That apart, Exhibit B-4 document relied upon by the High Court in favour of the defendants only certifies the defendants to be the legal heirs of Palani Gounder, an issue on which there was hardly any dispute inasmuch as the plaintiffs had only claimed one- fifth share of the property leaving the balance i.e. fourth-fifth share of the suit property to the defendants. Exhibit B-4, while it may have proved the defendants to be the legal heirs of Palani Gounder, in no way disproved the claim of the plaintiffs to be the legal heir of Palani Gounder through his first wife Palniammal. 8. In view of what we have stated above we are of the opinion that the High Court exercising jurisdiction under Section 100 CPC ought not to have disturbed the concurrent views expressed by two Forums in the absence of any error committed by the said Forums on a substantial question of law. We, therefore, allow this appeal; set aside the order of the High Court and restore the decree passed by the learned trial Court as affirmed by the First Appellate Court.