Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1995 (MAD)

S. Selvarajan (Died) v. R. Saraswathi (died)

2019-08-01

R.PONGIAPPAN

body2019
JUDGMENT : R. PONGIAPPAN, J. Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree passed by the Principal District Judge at Madurai dated 26.08.1999, passed in A.S. No. 34 of 1998, reversing the judgment and decree in O.S. No. 1460 of 1993 dated 13.11.1997 on the file of the III Additional Sub-Judge, Madurai. 1. This second appeal is directed against the judgment and decree passed in A.S. No. 34 of 1998 on the file of the learned Principal District Judge, Madurai. In earlier, the respondents 1 to 5 in this appeal filed a suit in O.S. No. 1460 of 1998 on the file of the Third Additional Subordinate Judge, Madurai, seeking the relief of declaration declaring that the plaintiffs are entitled to western half in suit item 1 and undivided half of items 2 and 3 and consequently, restraining the first defendant from seeking the third defendant for transferring the registry in his name exclusively to the entire suit items 1 to 3 constituted as house bearing Door No. 20, Andavan Kovil Street, Tirumangalam and also to restrain the third defendant from effecting registry kept in his office exclusively in the name of the first defendant in respect of suit items 1 to 3. The Third Additional Subordinate Judge, Madurai, in its judgment and decree dated 13.11.1997, came to the conclusion that the plaintiffs are not entitled the relief as prayed and ultimately, dismissed the suit. 2. Aggrieved over the said findings, the respondents 1 to 5/plaintiffs filed an appeal in A.S. No. 34 of 1998 on the file of the learned Principal District Judge, Madurai. The learned Principal District Judge, Madurai, by judgment and decree dated 26.08.1999, allowed the appeal and granted the decree that the plaintiffs be and they are hereby entitled to western half in the suit item 1 and undivided half of items 2 and 3 be and hereby is declared. Further restrained the first defendant by means of a permanent injunction from seeking the third defendant for transferring in his name exclusively to the entire suit items 1 to 3 constituted as house bearing Door No. 20, Andavan Koil Street, Thirumangalam and also the third defendant to be and hereby is restrained from effecting the registry kept in his office exclusively in the name of the first defendant in respect of suit items 1 to 3. Against the said findings, the first defendant in the suit is before this Court with the present Second appeal. 3. For the sake of convenience, the parties are referred to as, as described before the trial Court. 4. The averments made in the plaint, in brief, are as follows:- (i) The suit property is a house bearing Door No. 20, Andavan Kovil Street, Thirumangalam lying east-west in three units. Originally, this property belonged to Solai Nadar and his brother Seeranga Nadar. A partition took place in the family of the above said two and this property was allotted to Solai Nadar. Solai Nadar is the father of the first defendant and paternal grandfather of the plaintiffs 2 to 5 and the second defendant. Solai Nadar executed a Will on 16.10.1971 with regard to his joint family properties. After the enactment of Hindu Succession Act 1956, Solai Nadar could execute a Will only in respect of his undivided share in the properties. The action of Solai Nadar was questioned by the defendants. (ii) The first defendant along with his sons entered into a family arrangement on 31.10.1971. In that family arrangement, the father of the plaintiffs 2 to 5, one Raman and the first defendant were allotted the suit properties. In the first item of the suit properties, the first defendant was allotted the eastern half and the father of the plaintiffs 2 to 5, namely Raman was allotted the western half of the suit properties. They were enjoyed 2nd and 3rd items in common. The family arrangement, dated 31.10.1971 is considered to be lost its value under Section 17 (1) (b) of Registration Act, to prove the possession and enjoyment it can be acceptable under Section 49 of the Registration Act. However, after the death of the father of the plaintiffs 2 to 5 the plaintiffs and the first defendant have enjoyed the properties jointly beyond the statutory period. Therefore, they have exercised their rights in full. (iii) The said Raman died in the year of 1972 intestate without executing any Will in favour of the plaintiffs and the second defendant. The second defendant to enjoy the rooms 2 and 3 within the western half of the built up portion. Except the keys of these rooms, all other keys are with the plaintiffs. (iii) The said Raman died in the year of 1972 intestate without executing any Will in favour of the plaintiffs and the second defendant. The second defendant to enjoy the rooms 2 and 3 within the western half of the built up portion. Except the keys of these rooms, all other keys are with the plaintiffs. Since the plaintiffs are now residing at Dindigul, the first defendant who is a resident of Thirumangalam, is managing the suit property for himself and on behalf of the plaintiffs. The first defendant also admitted that the house is also allotted to Raman on 31.10.1971. As per the unregistered deed dated 31.10.1971, when Seerangam and his brother Paramasamy partitioned the property, the first defendant and his mother Thenammal were signed as witnesses. (iv) It is mentioned in the unregistered deed, dated 31.10.1971, how Solai Nadar and his sons have got their shares in the suit property. But the first defendant with ulterior motive gave a petition to the Thirumangalam Municipality as if he is the owner of the property and to change his name in the register. Therefore, the plaintiffs sent a letter on 09.10.1991 to the first defendant. The first defendant replied the same with false allegations. The first defendant, as per the letter, dated 24.11.1993 sent a petition to the Thirumangalam Municipality as the representatives of the plaintiffs 1, 2, 4 and 5 to change the registry. The suit property so far is not partitioned. They are enjoyed in common till this date. Since the second defendant is refused to join with the plaintiffs, he has been added as the defendant in this suit. Therefore, without any alternative, the plaintiffs filed a suit for the reliefs referred as above. 5. The averments made in the written statement filed by the first defendant, in brief, are as follows:- It is admitted that the fact of partition between Solai Nadar and his brothers and also the right that Solai Nadar bequeathed a Will. The family arrangement through the un-registered deed, dated 31.10.1971, is denied. This defendant admitted that the plaintiffs and the second defendant are the legal heirs of Raman. There was a Will executed by Solai Nadar. But none else questioned the same. In that Will, the ancestral joint family properties and the properties belonged to Thenammal were included. Even it is styled as a Will, actually it is a partition deed. This defendant admitted that the plaintiffs and the second defendant are the legal heirs of Raman. There was a Will executed by Solai Nadar. But none else questioned the same. In that Will, the ancestral joint family properties and the properties belonged to Thenammal were included. Even it is styled as a Will, actually it is a partition deed. As per the Will, there is a Vardamanam was also written. According to the said Vardamanam, the partition was effected among the sharers. The house mentioned in the 'C' schedule was allotted to the share of this defendant. The brother Raman, father of the plaintiffs was also given some landed properties. After the Will, dated 16.10.1971 the second Will, dated 17.12.1971 was executed for certain alterations in the former Will. According to the said Will, one of the brothers Balakrishnan took the shop in D. No. 255 at East Masi Street, Madurai. There is no partition deed, dated 31.10.1971. The signature of Solai Nadar was not obtained in the deed, is proved that it is not a true one. The partition deed dated 31.10.1971 never came into force. Therefore, it is not acted upon. Therefore, this defendant is the sole owner of the property and the plaintiffs are not entitled the relief asked for. There is no cause of action to the suit and the suit is liable to be dismissed. 6. The averments made in the written statement filed by the third defendant, in brief, are as follows:- It is true that the first defendant applied to change the registry in his name. For that, the plaintiffs have objected. Therefore, the registry is not changed in the name of the first defendant and till date the Registry is standing in the name of Solai Nadar. This defendant is an unnecessary party to the suit. Since the third defendant is added in this suit, the suit is hit by adding unnecessary party. There is no cause of action to the suit. The payment of Court fee is not correct. Therefore, this suit is liable to be dismissed. 7. Based on the above said pleadings, the learned Third Additional Sub-Judge, Madurai, had framed the necessary issues and tried the suit. 8. Before the trial Court, on the side of the plaintiffs, two witnesses have been examined as PW-1 and PW-2 and marked 40 documents as Ex.A.1 to Ex.A.40. Therefore, this suit is liable to be dismissed. 7. Based on the above said pleadings, the learned Third Additional Sub-Judge, Madurai, had framed the necessary issues and tried the suit. 8. Before the trial Court, on the side of the plaintiffs, two witnesses have been examined as PW-1 and PW-2 and marked 40 documents as Ex.A.1 to Ex.A.40. On the side of the defendants, two witnesses have been examined as DW-1 and DW-2 and marked 12 documents as Ex.B.1 to Ex.B.12. 9. Having considered all the material placed before him, the learned Third Additional Sub-Judge, Madurai, came to the conclusion that the plaintiffs are not entitled the reliefs of declaration and injunction. Aggrieved over the said findings, the plaintiffs filed an appeal before the learned Principal District Judge, Madurai. During the pendency of appeal, the appellants/plaintiffs filed two petitions in I.A. Nos. 140 of 1998 and 46 of 1999 under Order 41 Rule 27 of CPC to receive the documents as additional documents. The learned Principal District Judge at time of disposing the appeal allowed the said applications and exhibited the documents produced along with those applications as Ex.A.41 to Ex.A.45 and conclusively, he allowed the appeal and granted the decree in favour of the plaintiffs. Feeling aggrieved over the same, the appellant/first defendant is before this Court. 10. At the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:- “Whether as per Hindu Law a Kartha of a Hindu Joint Family (i.e. Solai Nadar in this case) has a right to write a subsequent modified Will dated 17.12.1971 contrary to the terms of the alleged partition deed dated 31.10.1971?” Substantial Question of Law:- 11. The suit schedule properties are the house situated in Andavan Kovil Street, Thirumangalam bearing door No. 20. The suit first schedule property is the front portion of the said house. Similarly, the middle portion of the said house was second item of the property and the last portion situated in the eastern side, is the third schedule property. Admittedly, the suit schedule properties and other properties are Joint Hindu Family properties of one Rama Nadar. The said Rama Nadar is blessed with two sons namely Solai Nadar and Seeranga Nadar. Similarly, the middle portion of the said house was second item of the property and the last portion situated in the eastern side, is the third schedule property. Admittedly, the suit schedule properties and other properties are Joint Hindu Family properties of one Rama Nadar. The said Rama Nadar is blessed with two sons namely Solai Nadar and Seeranga Nadar. On 20.05.1957 vide Ex.A.1 partition deed, the sons of Rama Nadar for example Solai Nadar and Seeranga Nadar, partitioned the Joint Hindu Family property, in which the suit schedule properties and some other properties were allotted in favour of Solai Nadar. The said Solai Nadar is having the wife in the name of Thenammal. Due to the wedlock, they gave birth to eight sons and one daughter called as Muniammal. 12. As per the case of the plaintiffs, after the partition dated 20.05.1957, the suit schedule properties and some other properties are becomes the joint Hindu Family property of the Solai Nadar and the same was consisting of his sons and daughter. On 16.10.1971, after including the absolute property of his wife Thenammal, the said Solai Nadar executed a Will in favour of his sons Raman, Chinnamani, Jagathisan, Balakrishnan, Rathinam, Selvaraj, Seerangan and Paramasamy. From the above, Selvaraj is the first defendant in the suit. One son Rathinam has left away from his village and he has not returned for so many years. So the said Solai Nadar in respect to 'A' schedule property of Ex.A.1 executed a registered Will dated 17.12.1971, in which he handed over the house situated in Kilamasi street in favour of other sons Chinnamani, Balakrishnan, Jegathesan and Rathinam. Since the said Rathinam has not returned to his home, the said property was enjoyed by the other three sons. In Ex.B.4, it was specifically told that the share of the Rathinam should be go to Chinnamani, Balakrishnan, Jegathesan with the Raman who is the husband of the first plaintiff and father of the 2 to 5 plaintiffs, Selvaraj (First defendant), Seerengam and Paramasamy. Now the plaintiffs claim the right only through the partition deed dated 31.10.1971 (Ex.A.2) the suit properties are allotted in favour of the husband of the first plaintiff and father of the other plaintiffs, Raman. 13. On the other hand, it is the claim made by the first defendant that Ex.A.2 partition deed is fabricated. Now the plaintiffs claim the right only through the partition deed dated 31.10.1971 (Ex.A.2) the suit properties are allotted in favour of the husband of the first plaintiff and father of the other plaintiffs, Raman. 13. On the other hand, it is the claim made by the first defendant that Ex.A.2 partition deed is fabricated. Further the same was not executed as alleged by the plaintiffs. He claimed as in respect to the suit schedule properties his father Solai Nadar on 16.10.1971 executed a Registered Will (Ex.B.2). Further, it is claimed that on 17.12.1971 the very same Solai Nadar executed the another one Will after modifying some portion found in Ex.B.2. 14. In the said circumstances, since the case has been instituted by the plaintiffs, it is the duty cast upon the plaintiffs to prove their case that means, whether they have proved Ex.A.2 and the plaintiffs are legally entitled the right over the suit properties. In fact, Ex.A.2 partition deed was written on 31.10.1971, in which in respect to 'A' schedule property the value has not been mentioned in the said document. Further the same has not been registered. However, the plaintiffs have claimed that the said document has been used for collateral purpose for proving the title. In the said circumstances, since the plaintiffs prayed to take Ex.A.2 for proving his possession, the stand taken by the plaintiffs is contradictory in nature. In fact, in Ex.A.2 partition deed the property purchased by the wife of Solai Nadar has also been included along with the Joint Hindu Family Property. 15. In this occasion, it is to be noted that even after including the absolute property of the Thenammal, she has not signed in the said partition (Ex.A.2) as a party to the document. Further, as per the evidence of PW-1, Solai Nadar died in the year of 1972. On the other hand, Ex.A.2 was preferred on 31.10.1971. It concludes that on the date of execution of Ex.A.2, the Solai Nadar is alive. Further, it is the case of the plaintiffs that the suit schedule properties are the Joint Hindu Family properties of Solai Nadar and his sons. 16. In the said circumstances, if really the partition had happened as stated by the plaintiffs, definitely Solai Nadar would have signed as a party to the document. Further, it is the case of the plaintiffs that the suit schedule properties are the Joint Hindu Family properties of Solai Nadar and his sons. 16. In the said circumstances, if really the partition had happened as stated by the plaintiffs, definitely Solai Nadar would have signed as a party to the document. But in the plaint itself, it is admitted on the side of the plaintiffs that the Solai Nadar has not taken part in the partition. More than that, the daughter of Solai Nadar, one Muniammal has also not been made as a party in the said document. 17. In this regard, the learned counsel appearing for the respondents 1 to 5/plaintiffs would contend that after execution of Ex.A.2, on 26.05.1989 vide Ex.A.4 the two sons of Solai Nadar namely Seerangam and Paramasamy executed a registered partition deed, in which it was referred that Ex.A.2 is the registered family arrangement. Further, it was mentioned in Ex.A.4 as only through the registered family arrangement, the properties were partitioned and allotted to them. In the said circumstances, we cannot conclude that Ex.A.2 is not acted upon. 18. In this regard, it is relevant to see the crucial aspect that in Ex.A.4 it was mentioned that Ex.A.2 is a registered family arrangement deed. It is admitted on either side that Ex.A.2 is an unregistered document. So the very mentioning the details of Ex.A.2 in the partition deed, Ex.A.4 would create a doubt whether the details of partition in Ex.A.4 denotes Ex.A.2 or not. So it concludes that in Ex.A.4, the details of Ex.A.2 is not mentioned. Even though PW-2 has stated that as per Ex.A.2, partition was effected in the family of Solai Nadar, the said evidence is against the recital found in Ex.A.4. So under Section 92 of Indian Evidence Act, the evidence given by PW-2 cannot be accepted. In fact, now the question to be decided is as the Kartha of a Joint Hindu Family has a right to write the subsequent modified Will dated 17.12.1971 contrary to the terms of the alleged partition deed dated 31.10.1971 (Ex.A.2). 18.As rightly pointed out by the learned counsel appearing for the appellant/1st defendant that the alleged partition deed dated 31.10.1971 is not proved by the plaintiffs as secured by law. As already discussed, in the said document even Solai Nadar and his wife have not been signed. 18.As rightly pointed out by the learned counsel appearing for the appellant/1st defendant that the alleged partition deed dated 31.10.1971 is not proved by the plaintiffs as secured by law. As already discussed, in the said document even Solai Nadar and his wife have not been signed. So it cannot be concluded that the earlier partition dated 31.10.1971 is executed by the Kartha of the Hindu Joint Family. Without any signature, we cannot term that Solai Nadar executed, Ex.A.2, partition deed. Furthermore, even Ex.A.2 is termed as a family arrangement. Now looking upon the judgment of this Court reported in 2001 (1) CTC 112 in the case of A.C. Lakshmipathy and Others vs. A.M. Chakrapani Reddiar and Others, in which, it was held as follows:- ......Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. ....A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act. 20. So the two conditions required for the family arrangements, are not at all complied in respect to Ex.A.2. So in any way the plaintiffs have not proved the validity of Ex.A.2. While at the time of disposing the first appeal, the learned Principal District Judge held that the various letters addressed by the first defendant will prove that for developing the suit schedule property, the plaintiffs have also contributed some amounts from the year 1976 onwards. Further, it was held by the first appellate Judge that those documents will clear the rights of the plaintiffs in the suit property. 21. Now considering the said findings, it is necessary to see that the plaintiffs are claimed the title only through Ex.A.2. As already discussed, in the said document has not been proved according to the law which required. Yet another issue to be decided in this appeal is during the pendency of the appeal the plaintiffs filed two applications under Order 41 Rule 27 in I.A. No. 140 of 1999 and 46 of 1999. Through the said application, the plaintiffs prayed to receive the additional documents. 22. Yet another issue to be decided in this appeal is during the pendency of the appeal the plaintiffs filed two applications under Order 41 Rule 27 in I.A. No. 140 of 1999 and 46 of 1999. Through the said application, the plaintiffs prayed to receive the additional documents. 22. While at the time disposing the appeal, the learned Principal District Judge, Madurai has held that the documents produced along with the applications referred above, are necessary and relevant to the case of the plaintiffs and ultimately, allowed those applications and marked the documents annexed to the applications as Ex.A.41 to Ex.A.48. In fact, those documents have not been marked through the author of the documents. Further for testifying the genuinety of the said documents, opportunity was not given to other side. 23. At this juncture, it is relevant to see the judgment of our Hon'ble Apex Court reported in 2018 (3) CTC 883 in the case of Akhilesh Singh @ Akhileshwar Singh in which, it was held as follows:- Order 41, Rule 2 provides that the Appellant shall not, except by leave of the Court, be allowed to urge any ground in the Appeal, which is not set forth in the Memorandum of Appeal. The Proviso to Order 41, Rule 2 engrafts a Rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts Rule of Natural Justice and Fair Play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence under Order 41, Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were Registered Sale Deeds, which were executed by present Appellant and his other co-sharers and what was relied before the High Court was that the Appellant admitted in the Sale Deeds that the Partition has been taken place in the family. In the present case, additional evidence, which were brought on the record were Registered Sale Deeds, which were executed by present Appellant and his other co-sharers and what was relied before the High Court was that the Appellant admitted in the Sale Deeds that the Partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial Court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the Appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the Defendants. The mere fact that no Counter Affidavit was filed to the I.As was not decisive. Since I.As having not been admitted, occasion for Counter Affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 8.3.2017 has allowed the I.As. as well as the First Appeal. The fact that contesting Respondents to the First Appeal, who are Appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal. 24. Further, it is relevant to see the judgment of this Court reported in 2015 (5) CTC 78 in the case of Kaliyammal vs. Ganapathi, in which, this Court has held as follows:- In the event of the Appellate Court coming to the conclusion that the application seeking permission to adduce additional evidence under Order 41, Rule 27 of the Code of Civil Procedure, 1908 there cannot be any objection for proceeding with the pronouncement of Judgment, incorporating the Order of dismissal of the Application in the Judgment itself. Unfortunately the Lower Appellate Court, after coming to the conclusion that the respondent herein/defendant, who figured as Appellant before the Lower Appellate Court was to be granted permission to adduce additional evidence, did not follow the procedure contemplated under Rule 28 of Order 41 of the Code of Civil Procedure, 908. Unfortunately the Lower Appellate Court, after coming to the conclusion that the respondent herein/defendant, who figured as Appellant before the Lower Appellate Court was to be granted permission to adduce additional evidence, did not follow the procedure contemplated under Rule 28 of Order 41 of the Code of Civil Procedure, 908. It simply chose to mark the documents without being proved through a witness and thereby afford an opportunity to the opposite party to cross-examine such witness relating to the relevancy of the documents, contents of the documents and the nexus of the recitals with the points in issue. 25. Applying the said principals with the case in our hand, in this case also, the first appellate Court without giving opportunity to other side, received the document and marked the same. The said procedure adopted by the first appellate Court is nothing, but against the procedure laid down in the above observations. On this score alone, this second appeal has to be remitted back to the first appellate Court. 26. Even assuming that the plaintiffs are having the right over the properties, now on go through the prayer sought in the plaint, the suit has been filed for the relief of declaration in respect to undivided family property. Further, he prayed the relief of injunction. In this occasion, it is to be noted that without partitioning the properties, allowing the suit in respect to the relief of declaration is no way helpful to either party in respect to the properties owned by them. According to the case of the plaintiffs, so far the properties under dispute, is not partitioned between the plaintiffs and defendants. Further, the defendants are the co-owner with the plaintiffs in respect to the suit schedule properties. Hence, the relief of injunction against the co-owner cannot be granted. Therefore, the above quarries have to be solved only by way of filing the suit for the relief of partition. So without filing the suit for partition filing the suit for the relief of declaration in respect to the undivided property, is not at all maintainable. 27. Hence, the relief of injunction against the co-owner cannot be granted. Therefore, the above quarries have to be solved only by way of filing the suit for the relief of partition. So without filing the suit for partition filing the suit for the relief of declaration in respect to the undivided property, is not at all maintainable. 27. In the result, this Second Appeal is allowed, by setting aside the Judgment and Decree, dated 26.08.1999, passed in A.S. No. 34 of 1998, by the learned Principal District Judge, Madurai and the Judgment and Decree, dated 13.11.1997, passed in O.S. No. 1460 of 1993, by the learned Third Additional Subordinate Judge, Madurai, is restored. However, it is open to either side to file a partition suit since no limitation is prescribed for filing the partition suit.