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2019 DIGILAW 1307 (MAD)

Annamalai Padayachi (Deceased) v. Muthulakshmi

2019-04-26

T.RAVINDRAN

body2019
JUDGMENT : 1. Challenge in this Second Appeal is made to the judgment and decree dated 16.04.2004 passed in A.S.No.75 of 2002 on the file of the Additional Subordinate Court, Vridhachalam reversing the judgment and decree dated 18.06.2002 passed in O.S.No.84 of 1997 on the file of the District Munsif cum Judicial Magistrate Court, Thittagudi. 2. 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. 3. For the sake of convenience, the parties are referred to as per the rankings in the trial court. 4. The suit has been admitted on the following substantial questions of law. 1. Whether the settlement deed executed by the respondent's husband is valid in the absence of evidence and proof for the oral partition based on which he claimed title over the suit properties? And 2. Whether patta alone will create the title to the respondent over the property while the appellant having title over the property is in possession and enjoyment? 5. The suit has been laid by the plaintiff against the defendant for the reliefs of declaration and permanent injunction or in the alternative for the recovery of possession. 6. The plaintiff is the daughter-in-law of the defendant. Of the four items of the suit properties as described in the plaint schedule, the plaintiff claims title to the first item of the plaint schedule properties on the basis of the settlement deed dated 04.05.1979 executed by the defendant and her husband Paramasivam in her favour and according to the plaintiff, since then, it is only she who has been in the possession and enjoyment of the abovesaid item of the plaint schedule properties by obtaining patta, paying Kists etc., and the defendant is not entitled to interfere with her possession and enjoyment of the same and on the other hand, inasmuch as, the defendant attempted to cause interference to her enjoyment with reference to the said item, hence she has been necessitated to lay the suit against the defendant for appropriate reliefs. 7. 7. As regards the first item of the plaint schedule properties, though the defendant at the first instance would dispute the settlement deed dated 04.05.1979 said to have been executed by him and the plaintiff's husband in favour of the plaintiff, however, later has admitted that he along with the plaintiff's husband had executed the abovesaid deed in favour of the plaintiff in respect of the first item of the plaint schedule properties and however would contend that apart from the property comprised in the abovesaid settlement deed, the plaintiff is not in the possession and enjoyment of the other properties and accordingly prayed for the dismissal of the plaintiff's suit. In fact, the defendant has clearly admitted that the property comprised in the abovesaid deed is in the possession and enjoyment of the plaintiff. 8. In the light of the abovesaid factors, the defendant virtually submitting to the decree in favour of the plaintiff as regards the first item of the plaint schedule properties, accordingly the Courts below had also upheld the plaintiff's suit as regards the first item of the suit properties and granted the reliefs prayed for with reference to the same. 9. The dispute between the parties is only as regards the items 2 to 4 of the plaint schedule properties. 9. The dispute between the parties is only as regards the items 2 to 4 of the plaint schedule properties. As regards the abovesaid items, the plaintiff claims title to the said properties on the footing that the defendant and her husband had effected an oral partition in respect of the other properties belonging to the family i.e., the items 2 to 4 of the plaint schedule properties in entirety and accordingly it is the case of the plaintiff that on 10.06.1979 in the presence of the Panchayathars, according to her, the defendant and his son effected the oral partition of the family properties and accordingly it is putforth by the plaintiff that the items 2 to 4 of the plaint schedule properties had been allotted to the share of her husband Paramasivam and the other half share in the items 2 to 4 of the plaint schedule properties had been allotted to the defendant and it is also further putforth by the plaintiff that following the aboveaid oral partition, her husband Paramasivam has been in the possession and enjoyment of the items 2 to 4 of the plaint schedule properties and thereafter according to the plaintiff, her husband had settled the items 2 to 4 of the plaint schedule properties in her favour by way of a registered settlement deed dated 07.08.1979 and by virtue of the same, according to the plaintiff, she has obtained the possession of the items 2 to 4 of the plaint schedule properties and enjoying the same as the absolute owner thereof, by obtaining patta, paying Kists etc., and it is only the plaintiff who is the title holder of the abovesaid items and inasmuch as, the defendant without any authority attempted to lay the claim of title to the abovesaid items without any basis and thereby interfered with her possession and enjoyment with reference to the same, hence the plaintiff has been necessitated to institute the suit for appropriate reliefs. 10. 10. The defendant has stoutly resisted the plaintiff's case as regards her claim of title, possession and enjoyment of the abovesaid items of the plaint schedule properties on the basis of the oral partition dated 10.06.1979 and the settlement deed dated 07.08.1979 as putforth by the plaintiff and according to the defendant, the items 2 to 4 of the plaint schedule properties belong to him and disputed the claim of partition of the family properties inclusive of the items 2 to 4 of the plaint schedule properties between him and the plaintiff's husband on 10.06.1979 in the presence of the Panchayathars orally as pleaded by the plaintiff and according to him, no such oral partition had been effected between him and his son at any point of time and also disputed that since then, the plaintiff's husband had been in the possession and enjoyment of the properties allotted to him under the alleged oral partition and also disputed that the items 2 to 4 of the plaint schedule properties had been allotted to the plaintiff's husband in the abovesaid oral partition and accordingly challenged the truth and validity of the settlement deed dated 07.08.1979 said to have been executed in favour of the plaintiff by her husband in respect of the abovesaid items and also refuted the case of the plaintiff that since then, she has been enjoying the abovesaid items as the absolute owner thereof by obtaining patta, paying taxes, Kists etc., and accordingly contended that the plaintiff has no title, possession and enjoyment of the items 2 to 4 of the plaint schedule properties and not entitled to seek and obtain the reliefs prayed for with reference to the same. 11. Based on the materials placed on record by the respective parties and the submissions made, the trial court was pleased to dismiss the plaintiff's suit as against the items 2 to 4 of the plaint schedule properties. However the appellate court reversed the abovesaid determination of the trial court and granted the reliefs in favour of the plaintiff as regards the items 2 to 4 of the plaint schedule properties. Impugning the same, the present second appeal has been preferred by the defendant. 12. However the appellate court reversed the abovesaid determination of the trial court and granted the reliefs in favour of the plaintiff as regards the items 2 to 4 of the plaint schedule properties. Impugning the same, the present second appeal has been preferred by the defendant. 12. As abovenoted, for claiming title to the items 2 – 4 of the plaint schedule properties, at the first instance, the plaintiff would putforth the plea of oral partition dated 10.06.1979 said to have been effected between the defendant and her husband Paramasivam. When the materials placed on record and the documents marked as Exs.B1 and B2 would go to show that the items 3 and 4 in particular, are the separate properties of the defendant and the item 2 is also not shown to be the joint family property belonging to the defendant and his son Paramasivam and accordingly the said item also belonging to the defendant absolutely and even the plaintiff having not come forward with any case that her husband had any right in respect of the items 2 to 4 of the plaint schedule properties by birth, in such view of the matter, the plea putforth by the plaintiff that the defendant and her husband had effected oral partition in respect of the family properties belonging to them inclusive of the items 2 -4 of the plaint schedule properties, as such, cannot be believed and accepted. No material has been placed by the plaintiff to evidence that before 10.06.1979, her husband Paramasivam had exercised any right, title or interest in respect of the items 2-4 of the plaint schedule properties. Therefore, the further case putforth by the plaintiff that the defendant and her husband had effected an oral partition in respect of the items 2 – 4 of the plaint schedule properties as well as the other family properties cannot be readily accepted. Be that as it may, the plaintiff has putforth the case that the oral partition held on 10.06.1979 took place in the presence of the Panchayathars between the defendant and her husband, and the items 2-4 of the plaint schedule properties had been allotted to her husband's share. The abovesaid fact has been stoutly challenged by the defendant. Be that as it may, the plaintiff has putforth the case that the oral partition held on 10.06.1979 took place in the presence of the Panchayathars between the defendant and her husband, and the items 2-4 of the plaint schedule properties had been allotted to her husband's share. The abovesaid fact has been stoutly challenged by the defendant. Despite the same, the plaintiff has not placed any material to hold that any partition much less oral partition had taken place between the defendant and her husband on 10.06.1979 as pleaded by her. When in specific, according to the plaintiff, the abovesaid oral partition had been effected in the presence of named Panchayathars as pleaded in the plaint and when the said fact has been controverted by the defendant tooth and nail, at the foremost, to establish that such a partition has been effected between the defendant and her husband on 10.06.1979, as rightly found by the trial court, the plaintiff should have endeavored to examine the Panchayathars named by her in the plaint to establish that such a partition had been effected between the defendant and her husband as pleaded by her. Despite the challenge made by the defendant to the abovesaid oral partition in toto, the plaintiff has not evinced interest to examine anyone of the Panchayathars for evidencing the factum of the oral partition as putforth in the plaint. Other than the plaintiff examined as P.W.1, no other witness has been examined on the part of the plaintiff. Though the plaintiff would claim during the course of evidence that some of the persons who had effected the partition are alive still, but for the reasons best known to the plaintiff, she has not chosen to examine any one of the Panchayathars, who are claimed to have mediated between the parties for effecting the partition and in such view of the matter, the claim of the plaintiff that the defendant and her husband had effected the oral partition in respect of the family properties on 10.06.1979 and in the said oral partition, the items 2 -4 of the plaint schedule properties had been allotted to her husband, as such, cannot be countenanced in any manner. Therefore the plea of oral partition putforth by the plaintiff is false. 13. Therefore the plea of oral partition putforth by the plaintiff is false. 13. Furthermore, atleast to establish that thereafter her husband had been in the possession and enjoyment of the items 2-4 of the plaint schedule properties in his own right by obtaining patta, paying Kists etc., absolutely there is no material worth acceptance placed on the part of the plaintiff. When there is nil material on the part of the plaintiff evidencing her husband's possession and enjoyment of the items 2-4 of the plaint schedule properties at any point of time either prior to the alleged oral partition on 10.06.1979 or thereafter, as rightly putforth by the defendant's counsel, inasmuch as, no such oral partition had been effected between the defendant and the plaintiff's husband at any point of time much less on 10.06.1979 and the items 2 – 4 of the plaint schedule properties had not been allotted to the share of the plaintiff's husband and the abovesaid items had continued to remain as the separate properties of the defendant, it is found that the plaintiff is unable to establish her husband's exclusive possession and enjoyment of the abovesaid items of the plaint schedule properties in his own right. Therefore, the case projected by the plaintiff that her husband had acquired title to the items 2-4 of the plaint schedule properties based on the alleged oral partition dated 10.06.1979 falls to the ground and rightly rejected by the trial court. 14. When the plaintiff has failed to establish her husband's title, right or interest in respect of the items 2-4 of the plaint schedule properties in any manner, her further case that her husband had transferred the said items in her favour by virtue of the settlement deed dated 07.08.1979 cannot be legally sustained and therefore, it is found that the abovesaid settlement deed projected by the plaintiff for claiming title to the items 2-4 of the plaint schedule properties does not have any legal validity as such and by virtue of the same, the plaintiff cannot be granted the relief of declaration of title to the abovesaid items. In such view of the matter, as rightly determined by the trial court, the plaintiff has miserably failed to establish her claim of title to the items 2-4 of the plaint schedule properties and thereby had rightly dismissed the plaintiff's suit with reference to the same. 15. In such view of the matter, as rightly determined by the trial court, the plaintiff has miserably failed to establish her claim of title to the items 2-4 of the plaint schedule properties and thereby had rightly dismissed the plaintiff's suit with reference to the same. 15. It is found that the defendant had executed certain Wills in respect of the properties belonging to him and the same had been exhibited in the matter as Exs.A34, A35 and B3. However, as rightly putforth by the defendant's counsel, inasmuch as, the properties belong to the defendant, he is entitled to execute the Wills with reference to the same and the plaintiff cannot take advantage of the earlier Wills executed by him marked as Exs.A34 and A35 for claiming title to the items 2-4 of the plaint schedule properties, particularly when the defendant has putforth the case that Ex.B3 is the last Will executed by him. Accordingly, as rightly determined by the trial court, when the testator himself has come forward and admitted that it is he, who has executed Ex.B3 Will revoking the earlier Wills executed by him and when he is competent and legally entitled to execute the abovesaid Will in respect of the properties belonging to him, in such view of the matter, the earlier Wills executed by the defendant cannot be allowed to be taken advantage of the plaintiff for sustaining her case in any manner. 16. The plaintiff would also putforth the plea of adverse possession for claiming title to the plaint schedule properties. However by taking the abovesaid plea, it is found that impliedly thereby she has accepted the title of the defendant in respect of the properties in dispute i.e., the items 2-4 of the plaint schedule properties. Considering the documents projected by the plaintiff namely the patta and the Kist receipts and house tax receipts and certain adangals, they by themselves would not enable the plaintiff to claim title to the items 2-4 of the plaint schedule properties by way of the adverse possession. Considering the documents projected by the plaintiff namely the patta and the Kist receipts and house tax receipts and certain adangals, they by themselves would not enable the plaintiff to claim title to the items 2-4 of the plaint schedule properties by way of the adverse possession. When the abvoesaid documents taken together would not be sufficient to uphold the plea of adverse title projected by the plaintiff and when as could be seen from the pleas putforth by the respective parties and the materials placed on record, the defendant has been all along asserting his title, interest, possession and enjoyment in respect of the items 2-4 of the plaint schedule properties to the knowledge of the plaintiff by executing the Wills projected in the matter, particularly Exs.A34 and A35 Wills marked on the side of the plaintiff and furthermore when the plaintiff has failed to establish that she and her husband had been exercising any absolute ownership over the items 2-4 of the plaint schedule properties by enjoying the same as the full owners thereof openly, continuously and uninterruptedly beyond the statutory period to the knowledge of one and all including the defendant and when the documents projected by the plaintiff with reference to the same do not advance the case of the plaintiff in any manner for sustaining the plea of adverse title putforth and on the other hand, the documents projected by the defendant would go to show that he had been all along asserting his title to the properties in dispute, in such view of the matter, the claim of adverse title putforth by the plaintiff with reference to the items 2-4 of the plaint schedule properties cannot at all be countenanced and the first appellate court has committed a total error in upholding the plaintiff's case qua the claim of title to the properties in dispute. The first appellate court is found to have placed some reliance on the recitals found in Ex.A1 settlement deed and thereby proceeded to hold that the properties in dispute are the joint family properties of the defendant and his son. The first appellate court is found to have placed some reliance on the recitals found in Ex.A1 settlement deed and thereby proceeded to hold that the properties in dispute are the joint family properties of the defendant and his son. However, the recitals contained in Ex.A1 do not point to any such inference as regards the nature of the properties in any manner, and on the other hand, when the materials placed on record go to point out that the properties in dispute are only the separate properties of the defendant, in such view of the matter, the first appellate court has erred in determining that the plaintiff has title to the suit properties as pleaded by her without considering the well considered convincing reasonings and conclusions of the trial court and had erroneously set aside the judgment and decree of the trial court and thereby wrongly upheld the plaintiff's case which cannot be legally sustained. The revenue documents projected by the plaintiff would not by itself be sufficient to create title to the plaintiff in respect of the properties in dispute. None would be sufficient to hold that the plaintiff has the legal possession and enjoyment of the properties in dispute. When the plaintiff has failed to establish the plea of partition projected by her, her husband's entitlement to the properties in dispute and the validity of the settlement said to have been executed by her husband in her favour and when the revenue documents projected by the plaintiff are found to be based upon the alleged invalid settlement deed executed in her favour by her husband, in such view of the matter, no credence at all, could be given to the revenue documents projected by the plaintiff for accepting her case in any manner. 17. The counsel for the defendant in support of her contentions placed reliance upon the decisions reported in 2014 (1) CTC 797 [ Singaravel Vs. Murugesa Udayar (Died) and others] and 2014 (6) MLJ 674 [N.Thirumuppa Gowder Vs. Ponnusamy and others]. The principles of law outlined in the abvoesaid decision are taken into consideration and followed as applicable to the case at hand. 18. Murugesa Udayar (Died) and others] and 2014 (6) MLJ 674 [N.Thirumuppa Gowder Vs. Ponnusamy and others]. The principles of law outlined in the abvoesaid decision are taken into consideration and followed as applicable to the case at hand. 18. In the light of the abovesaid discussions, the settlement deed said to have been executed in favour of the plaintiff by her husband is found to be an invalid document in the absence of any proof or evidence on the part of the plaintiff establishing the alleged oral partition between the defendant and her husband by virtue of which her husband is claimed to have acquired title to the items 2-4 of the plaint schedule properties and accordingly, the revenue documents projected by the plaintiff such as patta, Kist receipts etc., would not be sufficient and adequate by themselves to uphold the plaintiff's claim of title to the suit properties or her claim of legal possession and enjoyment of the suit properties. The first appellate court has failed to appreciate the controversy between the parties in the right perspective by analyzing the materials placed on record properly and without giving any convincing reasons and conclusions, committed a serious miscarriage of justice in setting aside the well considered judgment and decree of the trial court dismissing the plaintiff's suit as against the items 2-4 of the plaint schedule properties. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendant. 19. For the reasons aforestated, the judgment and decree dated 16.04.2004 passed in A.S.No.75 of 2002 on the file of the Additional Subordinate Court, Vridhachalam are set aside and the judgment and decree dated 18.06.2002 passed in O.S.No.84 of 1997 on the file of the District Munsif cum Judicial Magistrate Court, Thittagudi are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.