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2019 DIGILAW 2197 (MAD)

Kothai Nachiyar v. S. Renganathan

2019-08-28

SENTHILKUMAR RAMAMOORTHY

body2019
JUDGMENT : (Prayer: Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 11.07.2014 made in I.A. No.178 of 2014 in O.S.No.48 of 2012 on the file of the Principal District Judge, Tirunelveli.) 1. This Civil Revision Petition is filed by the second and third Defendants in O.S. No.48 of 2012, i.e. the original suit before the Trial Court, in order to set aside the order dated 11.07.2014 in I. A. No. 178 of 2014 in O. S. No. 48 of 2012 whereby the said interlocutory application was dismissed. The said interlocutory application was filed under Section 151 CPC by the Revision Petitioners to direct the first Respondent herein/Plaintiff to open the trial by leading evidence. 2. The facts that are relevant for the purposes of disposal of this Civil Revision Petition are stated briefly herein. The first Respondent herein/Plaintiff, i.e. S.Ranganathan, filed a suit for partition through his wife, suing in the capacity of guardian and next friend (the Present Suit). The Present Suit was filed on the basis that the father and mother of the first Respondent/Plaintiff died intestate and that the plaintiff jointly inherited the suit schedule properties on the demise of his parents and that he is in joint possession of said properties. It is relevant to state that the first Respondent/Plaintiff stated, in the plaint, that an earlier suit, namely, O.S.No.70 of 2011 (the Earlier Suit), was filed fraudulently by the first Revision Petitioner in the name of the first Respondent/Plaintiff and was also withdrawn by the said first Revision Petitioner when the wife of the first Respondent/Plaintiff filed an application to implead herself in the Earlier Suit. It is further stated in the plaint that the first Respondent/Plaintiff and the first and third Defendants, who are the brothers of the Plaintiff, are of unsound mind. 3. An interim application was taken out in the Present Suit by the Revision Petitioners under section 151 CPC for a direction to the 1st Respondent/Plaintiff to open the trial by leading evidence. The said application was filed on the basis that the burden of proof is on the Plaintiff and, therefore, the Plaintiff should open the trial by leading evidence. An interim application was taken out in the Present Suit by the Revision Petitioners under section 151 CPC for a direction to the 1st Respondent/Plaintiff to open the trial by leading evidence. The said application was filed on the basis that the burden of proof is on the Plaintiff and, therefore, the Plaintiff should open the trial by leading evidence. Such an application was necessitated in view of the direction by the Trial Court to the Revision Petitioners to open the trial by leading evidence notwithstanding the fact that the Revision Petitioners are the second and third Defendants in the Present Suit. 4. In this regard, it is relevant to state that a written statement was filed jointly by the first, second and third Defendants wherein it was stated that the suit is not maintainable on account of Respondent-judicata because the Earlier Suit was filed by the first Respondent/Plaintiff and the Earlier Suit was dismissed. In addition, it was stated that Defendants 1-3 had relinquished their rights in the suit schedule properties in favour of their mother for consideration and that a registered Will was executed by the mother of the Revision Petitioners, Janakiammal. By the said Will, it is stated that the 2nd suit schedule property was bequeathed by way of a life estate in favour of her sons, Subramanian and Ranganathan, and by way of an absolute estate in favour of her daughter, i.e. the first Revision Petitioner, Kothai Nachiyar. Moreover, as per the said written statement, the 4th schedule property shall devolve on the first Revision Petitioner if the 2nd Revision Petitioner/third Defendant dies without children. It is further stated in the said written statement that the allegations in the plaint that the Plaintiff and the first and third Defendants are persons of unsound mind is not correct and that the said allegation has been made for the purposes of the case. Furthermore, it is stated that the suit is filed fraudulently by the wife of the first Respondent/Plaintiff by holding out as the next friend with a mala fide intention to grab the suit schedule properties. 5. Furthermore, it is stated that the suit is filed fraudulently by the wife of the first Respondent/Plaintiff by holding out as the next friend with a mala fide intention to grab the suit schedule properties. 5. In the affidavit filed in support of the application to direct the first Respondent/Plaintiff to open the trial, the Revision Petitioners also stated that the burden of proof is on the first Respondent herein to prove the allegation that the Earlier Suit was filed fraudulently by the first Revision Petitioner in the name of the first Respondent herein. It was further stated that in view of the dismissal of the Earlier Suit as "not pressed", the first Respondent herein is not entitled to file the suit for partition on the same cause of action. On that basis, it was stated that the first Respondent herein should open the trial by leading evidence because the maintainability of the suit is under question. In the counter to the said application, the first Respondent herein stated that the alleged non-maintainability of the suit is a question of law whereas the question of fact is the alleged Will of the mother. On that basis, the first Respondent submitted that the first Revision Petitioner should open the trial by leading evidence in accordance with Section 104 of the Evidence Act read with Order XVIII Rule 1 of CPC. 6. The above-mentioned application was rejected by the Trial Court by holding that the Earlier Suit was not filed through a guardian and next friend and that it is not stated therein that the plaintiff is of unsound mind whereas the Present Suit is filed through the guardian and next friend. In addition, the Trial Court held that the person who relies upon the Will should open the trial by leading evidence so as to prove the Will under Section 68 of the Indian Evidence Act. 7. At the hearing, the learned counsel for the Revision Petitioners, Mr.V.Thiyagarajan, submitted that the burden of proof is on the first Respondent/Plaintiff to establish that the Present Suit is maintainable in spite of the filing of the Earlier Suit on the same cause of action. In this regard, the learned counsel adverted to the averments in the plaint with regard to the alleged unsound state of mind of the first Respondent/Plaintiff and the 1st and 3rd Defendants. In this regard, the learned counsel adverted to the averments in the plaint with regard to the alleged unsound state of mind of the first Respondent/Plaintiff and the 1st and 3rd Defendants. He also referred to the averments in the said plaint with regard to the Earlier Suit and, in specific, to the statement that the Earlier Suit was filed fraudulently by the first Revision Petitioner in the name of the first Respondent/Plaintiff. According to the learned counsel for the Revision Petitioners, these allegations are required to be proved by the first Respondent/Plaintiff. In this connection, he also referred to the written statement of the Revision Petitioners wherein it is denied that the first Respondent/Plaintiff and Defendants 1 and 3 are of unsound mind. In order to substantiate the submission that the burden of proof is on the first Respondent/Plaintiff, the learned counsel referred to the order in Vanjiammal vs. Mylsamy, C.R.P.(PD)No. 330 of 2012, wherein, in paragraph 6, this court interpreted Order XVIII Rule 1 of CPC and held that the defendant cannot be compelled to lead evidence against his/her will before the plaintiff leads evidence. It was further held therein that if the defendant is not inclined to exercise the right to lead evidence under Order XVIII Rule 1 of CPC, the plaintiff shall lead evidence and reserve the right to lead additional evidence to rebut the evidence adduced by the defendants. In order to establish that the burden of proof is on the first Respondent/Plaintiff with regard to the suit not being barred under Order II, Rule 2 CPC, the learned counsel also referred to and relied upon the judgment of a Division Bench of this Court in Bajaj Auto Ltd vs. TVS Motor Co Ltd 2010 (6) CTC 225 . In the said judgment, paragraphs 42, 43 and 52 were relied upon wherein the court held that the general principle is that the plaintiff should win or lose the case on the basis of the case set up by the plaintiff and that, therefore, the defendant has a right to insist that he should not be compelled to disclose his evidence first. In addition, it was also held that if the plaintiff admits to the filing of the earlier suit, it is the plaintiff's duty to establish that the first suit was on the basis of a different cause of action. In addition, it was also held that if the plaintiff admits to the filing of the earlier suit, it is the plaintiff's duty to establish that the first suit was on the basis of a different cause of action. By relying on the said judgments, the learned counsel for the Revision Petitioners concluded his submissions by stating that the Trial Court committed a material irregularity in directing the Revision Petitioners to open the trial by leading evidence before the first Respondent/Plaintiff. 8. In response, the learned counsel for the first Respondent, Mr.T.S.R.Venkataraman, opened his submissions by stating that the Revision Petitioners have abused the process of law and that this petition is liable to be dismissed with costs. In order to substantiate the submission, the learned counsel set out the relevant facts. In specific, he pointed out that the Revision Petitioners and the Respondents herein are siblings. He further submitted that all the male siblings are of unsound mind. Accordingly, he submitted that the Present Suit was filed on behalf of one of the male siblings through his wife, who is also his guardian and next friend. Similarly, he submitted that the male Defendants in the suit are also represented through their respective guardians and next friends. By contrast, he submitted that the first Revision Petitioner herein, who is of sound mind and is the sister, fraudulently filed the Earlier Suit purportedly in the name of the first Respondent herein, who, as stated earlier, is a person of unsound mind. Thereafter, the Earlier Suit, which is a nullity, was withdrawn when the wife of the first Respondent herein attempted to implead herself in the said suit. Consequently, he submitted that the Present Suit is properly framed and is, undoubtedly, maintainable. In particular, he submitted that the Earlier Suit was not decided on merits and, therefore, it is not barred by res judicata. Likewise, he contended that the first Respondent/Plaintiff has not relinquished the right to sue for partition on account of the Earlier Suit. In this connection, he adverted to Order II, Rule 2 CPC and pointed out that the said provision is intended to apply in cases where a party sues for certain remedies that arise out of a particular cause of action but fails to sue for other remedies arising out of the same cause of action. In this connection, he adverted to Order II, Rule 2 CPC and pointed out that the said provision is intended to apply in cases where a party sues for certain remedies that arise out of a particular cause of action but fails to sue for other remedies arising out of the same cause of action. In such event, he submitted that such a plaintiff would not be permitted to sue for the other remedies by a later suit unless leave was obtained in the earlier suit. On the contrary, in this case, he submitted that the Earlier Suit was fraudulently instituted by the first Revision Petitioner in the name of the first Respondent herein and, therefore, the Earlier Suit is non est and a nullity in the eye of law. 9. He further submitted that the suit is for partition of the assets that were inherited by the first Respondent herein from his parents and that in light of the admitted position that all the parties to the suit are the children of the owners of the property, in the absence of a Will, the first Respondent/Plaintiff would be entitled to a decree for partition and to a 25% share in the property. As a result, the first Respondent/Plaintiff is not required to lead evidence in the suit for partition. On the other hand, the Revision Petitioners allege that the first Respondent/Plaintiff is not entitled to a decree for partition because some of the properties in question were bequeathed to the Revision Petitioners under a Will executed by the mother of the parties to the suit. Therefore, the first Revision Petitioner is liable to open the trial by leading evidence so as to establish the existence of and validity of the Will. In this connection, he further submitted that a suit for partition is a departure from the general rule of dominus litis and that all defendants in such a suit are, in effect, plaintiffs. Thus, he submitted that the Trial Court correctly appreciated the facts and the applicable law and rejected the application filed by the Revision Petitioners to direct the first Respondent/Plaintiff to open the trial. 10. The pleadings, impugned order and oral submissions were considered carefully. As stated above, on perusal of the plaint, it is evident that the first Respondent/Plaintiff refers to the Earlier Suit. 10. The pleadings, impugned order and oral submissions were considered carefully. As stated above, on perusal of the plaint, it is evident that the first Respondent/Plaintiff refers to the Earlier Suit. In specific, the first Respondent/Plaintiff alleges that the Earlier Suit was fraudulently filed by the first Revision Petitioner in the name of the first Respondent herein and that, therefore, the Earlier Suit is a nullity in as much as it was filed in the name of a person of unsound mind, without such person being represented by a guardian and next friend. Moreover, it is stated that all the male siblings are of unsound mind. The allegation that the first Respondent/Plaintiff and the other male siblings are of unsound mind is refuted and denied by the Revision Petitioners in the written statement. Similarly, the allegation that the Earlier Suit was filed fraudulently by the first Revision Petitioner in the name of the first Respondent is also denied. 11. In this factual context, it is necessary to first establish that the first Respondent/Plaintiff is of unsound mind and also that he was of unsound mind at the time of filing of the Earlier Suit. If the said fact is proved, needless to say, the Earlier Suit would be a nullity. As a corollary, the question that arises for consideration is with regard to the burden of proof for this purpose. The answer is fairly straightforward because the suit was filed in the name of the first Respondent/Plaintiff by his next friend and guardian and the Plaintiff expressly adverts to the Earlier Suit and asserts that the Earlier Suit was filed fraudulently in the name of a person of unsound mind and is a nullity. Therefore, the initial burden of proof on this aspect would be on the first Respondent/Plaintiff. The learned counsel for the first Respondent/Plaintiff contended, in this regard, that an application was filed in the present suit, under Order XXXII Rule 15 CPC read with Rule 1 thereof, for leave to represent the first Respondent/Plaintiff through a guardian and next friend and the said application was allowed. On that basis, the learned counsel contended that the Trial Court has already considered as to whether the first Respondent/Plaintiff is a person of unsound mind and has answered the said question in the affirmative. Consequently, he submitted that it is unnecessary to prove this fact by leading evidence. On that basis, the learned counsel contended that the Trial Court has already considered as to whether the first Respondent/Plaintiff is a person of unsound mind and has answered the said question in the affirmative. Consequently, he submitted that it is unnecessary to prove this fact by leading evidence. The relevant application and the order passed therein are not on record in this proceeding and, therefore, I am unable to draw any conclusions or inferences with regard to this issue. There is also nothing in the impugned order of the Trial Court to indicate that such an application was filed and allowed. However, on this aspect, it is relevant to note that the first Respondent/Plaintiff filed, as a suit document, a photocopy of a Certificate dated 10.01.2005 from a medical doctor certifying that the first Respondent/Plaintiff is of unsound mind. Consequently, if the first Respondent/Plaintiff had filed an application and established prima facie that the first Respondent/Plaintiff was of unsound mind from 10.01.2005 and if the next friend and guardian application was allowed on that basis, the burden of proof to rebut the said presumption would shift to the Revision Petitioners/Defendants 2-3. 12. The law, on this issue, was considered by a Division Bench of this Court in G.V. Lakshminarayanan vs. G.V. Nagammal 2007 (3) CTC 1 and it was held that the Court has the jurisdiction to enquire into the dispute as to whether the plaintiff is of unsound mind. Similarly, a Division Bench of the Bombay High Court in Somnath Mahapure vs. Tipanna Jannu AIR 1973 Bom 276 examined the procedure to be followed under Order XXXII Rule 15 CPC and held that the Court should hold an initial enquiry when the suit is filed by a next friend and guardian on behalf of a person of unsound mind and that such preliminary enquiry does not preclude the defendant in such suit from alleging that such plaintiff is of sound mind and proving the same. Consequently, if no preliminary enquiry was held with regard to the mental unsoundness of the first Respondent/Plaintiff, it becomes necessary for the first Respondent/Plaintiff to open the trial and lead evidence on this aspect. On the other hand, if the conclusion of such preliminary enquiry is sought to be rebutted by the Revision Petitioners/Defendants 2-3, the burden of proof would be on them. On the other hand, if the conclusion of such preliminary enquiry is sought to be rebutted by the Revision Petitioners/Defendants 2-3, the burden of proof would be on them. As regards res judicata, the contention of the learned counsel for the first Respondent/Plaintiff that the Earlier Suit was not decided on merits and, therefore, the Present Suit is not barred by res judicata is liable to be accepted. As regards the applicability of Order II Rule 2 CPC, definitive conclusions are not recorded herein because it would become a non-issue if the question as to whether the first Respondent/Plaintiff is and was of unsound mind had been or is decided. 13. On merits, the conclusion of the Trial Court that the Revision Petitioners/Defendants 2 &3 should lead evidence with regard to the Will cannot be faulted. In this connection, the order of this Court in C.R.P. No. 330 of 2012 (cited supra) can be distinguished on facts in as much as, in that case, the case was listed for recording the evidence of the plaintiff on more than one occasion and, thereafter, the trial court called upon the defendant to open the trial. Indeed, the said facts are recorded in paragraph 3 of the said order wherein it is also stated that the said procedure of directing the defendants to open the trial cannot be faulted. By contrast, in this case, the Trial Court had directed the Revision Petitioners/Defendants 2 & 3 to open the trial by appraising the nature of the dispute and the defence taken by the said defendants in their written statement. In fact, a Division Bench of this Court in Ramakka vs. V. Nagasam AIR 1925 Mad 145 held that the 4th defendant therein is liable to open the trial by leading evidence by applying Order XVIII Rules 1-3 CPC. I do not see any reason to interfere with the decision of the Trial Court to direct the Revision Petitioners to open the trial on the merits of the dispute. 14. I do not see any reason to interfere with the decision of the Trial Court to direct the Revision Petitioners to open the trial on the merits of the dispute. 14. In light of the foregoing discussion, the order of the Trial Court is affirmed subject to the following directions: (a) If a preliminary enquiry was held wherein it was established that the first Respondent/Plaintiff is of unsound mind, the burden of proof would shift to the Revision Petitioners/Defendants 2-3 in that regard; (b) On the other hand, if such preliminary enquiry was not held, the first Respondent/Plaintiff should first discharge the burden of proving that the suit is filed in the name of and on behalf of a person of unsound mind by the next friend and guardian; and (c) As regards the merits of the suit, the Revision Petitioners shall open the trial and lead evidence on the existence of and validity of the Will and any other documents that the said Revision Petitioners/Defendants rely upon in order to defeat the claim of the first Respondent/Plaintiff for partition. Needless to say, the first Respondent/Plaintiff should be permitted to lead rebuttal evidence, if necessary, thereafter. 15. In the result, this Civil Revision Petition is disposed of on the above terms. No costs. Consequently, connected miscellaneous petitions are closed.