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2019 DIGILAW 3268 (MAD)

Muthulakshmi v. Thangaraj (died)

2019-11-27

P.T.ASHA

body2019
JUDGMENT : Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 07.08.2013 made in A.S.No.253 of 2011 on the file of the II Additional District Judge, Trichy, partly confirming the judgment and decree dated 21.03.2011 made in O.S.No.426 of 2000 of the II Additional Subordinate Judge, Trichy. Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 07.08.2013 made in A.S.No.253 of 2011 on the file of the II Additional District Judge, Trichy, partly confirming the judgment and decree dated 21.03.2011 made in O.S.No.426 of 2000 of the II Additional Subordinate Judge, Trichy. 1. S.A.(MD) No.104 of 2015 is filed by the plaintiff in the suit O.S.No.426 of 2000 on the file of the learned II Additional Subordinate Judge, Tiruchirappalli, challenging the judgment and decree in A.S.No.253 of 2011 on the file of the learned II Additional District Judge, Tiruchirappalli insofar as the decree of the trial Court is confirmed with reference to the 'B' schedule property. 2. S.A.(MD) No.487 of 2015 is filed by the defendants in the above suit, challenging the judgment and decree in A.S.No.253 of 2011 insofar as the decree of the trial Court is set aside with reference to the 'A' schedule property. 3. Since both the appeals emanate from a single suit, a common judgment is being pronounced and the parties are herein below referred to in the same litigative status as in the trial Court. PLAITNIFF'S CASE: 4. The plaintiff had filed a suit O.S.No.426 of 2000 on the file of the II Additional Subordinate Judge, Trichirappalli for a partition of her 1/2 share in the 'A' schedule property and a 1/3rd share in the 'B' schedule property apart from seeking rendition of accounts in respect of the properties by relegating the same to a separate proceeding under Order XX Rule 12 of the Code of Civil Procedure. 5. The 'A' schedule property belonged to the plaintiff's mother, Nachammal and the 'B' schedule property is the ancestral property of her father, Ramasamy. Given below is a genealogy showing the relationship between the plaintiff and the defendants. “IMAGE” 6. It is the case of the plaintiff that the 'A' schedule property belonged to the plaintiff's mother's family and her mother had two brothers, Palanisamy and Arunachalam. Given below is a genealogy showing the relationship between the plaintiff and the defendants. “IMAGE” 6. It is the case of the plaintiff that the 'A' schedule property belonged to the plaintiff's mother's family and her mother had two brothers, Palanisamy and Arunachalam. On 06.05.1968, the plaintiff's mother had executed a partition release deed in favour of her mother and brothers in respect of their family properties and the 'A' schedule property fell to the share of the plaintiff's mother, Nachammal. Nachammal was in open, continuous and peaceful uninterrupted possession till her life time and had therefore, prescribed title to the same as well. The said Nachammal died intestate on 30.05.1996 leaving behind the plaintiff and the 1st defendant as her legal heirs since her husband, Ramasamy, had predeceased her. The plaintiff would contend that the 'B' schedule property is the joint family property of the plaintiff's parents and the 1st defendant, her brother. On the death of the plaintiff's father, Ramasamy, his 1/3 share devolved on the plaintiff, 1st defendant and her mother. On the death of the plaintiff's mother, Nachammal, her share devolved on the plaintiff and the 1st defendant. As a result, the plaintiff became entitled to a 1/3rd share in the 'B' schedule property and the 1st defendant became entitled to a 2/3rd share. 7. The plaintiff would contend that though she had been demanding partition of the suit property since misunderstanding arose between her and the 1st defendant, the 1st defendant has failed to comply with the request, but on the other hand was trying to create bogus and sham documents in favour of his relatives on his wife side so as to defeat the rights of the plaintiff. Therefore, left with no other alternative, the plaintiff had come forward with the suit in question. DEFENDANTS' CASE: 8. A written statement was filed by the deceased 1st defendant contending that the 1st defendant and plaintiff's mother, Nachammal had executed a Will dated 24.01.1994 bequeathing the 'A' schedule property in favour of the 1st defendant. The 1st defendant would contend that the plaintiff was very much aware about the Will since one of the recitals in the Will was that the 1st defendant should pay a sum of Rs.15,000/- to the plaintiff. The 1st defendant would contend that the plaintiff was very much aware about the Will since one of the recitals in the Will was that the 1st defendant should pay a sum of Rs.15,000/- to the plaintiff. As regards the 'B' schedule property, the 1st defendant would contend that there was a registered partition dated 22.04.1985 between the 1st defendant and his father, Ramasamy. Under this deed item Nos.1 to 4 of the 'B' schedule property in the suit O.S.No.426 of 2000 was allotted to the share of the 1st defendant and the 5th item, which is described in the 'B' schedule, is the self acquired property of the 1st defendant. It was therefore, the contention of the 1st defendant that the suit for partition deserves to be dismissed as there is no property available for partition. 9. Pending the suit, the 1st defendant died and his wife and children were brought on record as defendants 2 to 4. After being impleaded in the suit, the 2nd defendant had filed a written statement reiterating the contentions raised by the 1st defendant and further contending that the suit was not valued properly as the plaintiff was not in joint possession of the property and therefore, the payment of Court fee ought not to have been under Section 37 (2) of the Tamilnadu Court Fees and Suits Valuation Act. The 2nd defendant would further contend that the plaintiff was very much aware about the Will and the partition and despite such knowledge, she has filed the suit and therefore, she prayed for dismissing the suit. TRIAL COURT: 10. The learned II Additional Subordinate Judge, Kulithalai, Trichirapalli, had framed the following issues: “TAMIL” 11. Further, the II Additional Subordinate Judge, Kulithalai, Trichirapalli, had also framed an additional issue and the same is extracted hereunder: “TAMIL” 12. On the side of the plaintiffs, the plaintiff had examined herself as P.W1, one Kandasamy was examined as P.W2 and one Arunachalam, who is the brother of said Nachammal, was also examined as P.W3 and in support of her contentions, 9 documents were marked as Ex.A1 to Ex.A9. On the side of the defendants, the 2nd defendant had examined herself as D.W1 and one Periyasamy, the Scribe and one Selvaraj the attesting witness of Ex.B6 Will, were examined as D.W2 and D.W3 respectively. The summons issued to P.W3 has been marked as C1. 13. On the side of the defendants, the 2nd defendant had examined herself as D.W1 and one Periyasamy, the Scribe and one Selvaraj the attesting witness of Ex.B6 Will, were examined as D.W2 and D.W3 respectively. The summons issued to P.W3 has been marked as C1. 13. The learned II Additional Subordinate Judge, Kulithalai, Trichirapalli, on considering the evidence on record dismissed the suit O.S.No.104 of 2015. APPELLATE COURT: 14. Challenging the said judgment and decree, the plaintiff had filed A.S.No.253 of 2011 on the file of the learned II Additional District Judge, Trichy. The learned II Additional District Judge, Trichy, by his order dated 07.08.2013, was pleased to partly allow the appeal by decreeing the suit with reference to the 'A' schedule property, allotting a 1/2 share to the plaintiff and confirming the judgment and decree of the trial Court with reference to the 'B' schedule property apart from decreeing that the plaintiff was entitled to the past and future mesne profits. SECOND APPEAL: 15. Challenging the judgment and decree of the lower appellate Court insofar as it is against the plaintiff, she has preferred S.A.(MD) No.104 of 2015. 16. S.A.(MD) No.104 of 2015 has been admitted on the following substantial questions of law: 1. Whether the Courts below are correct in coming to the conclusion that Ex.A3 partition deed is valid? 2. Whether the Courts below are correct in coming to the conclusion that the item 5 of schedule property is the absolute property of deceased 1st defendant? 17. Challenging the judgment and decree of the lower appellate Court insofar as it is against the defendants, they have preferred S.A.(MD) No.487 of 2015. 18. S.A.(MD) No.487 of 2015 has been admitted on the following substantial questions of law: 1. When the genuineness of the Will, Ex.B6 is proved in accordance with Section 63 of the Indian Succession Act is not a perverse finding by the lower appellate Court that Ex.B6 Will is not true and valid and not binding on the parties? 2. When the Ex.B6 Will is proved by the appellant/respondent/defendant in the manner known to law is it correct for the lower appellate Court to reverse the trial Court judgment by applying preponderance of probabilities and is it not perverse to apply the said proposition to modify the trial Court decree and judgment? SUBMISSIONS: 19. 2. When the Ex.B6 Will is proved by the appellant/respondent/defendant in the manner known to law is it correct for the lower appellate Court to reverse the trial Court judgment by applying preponderance of probabilities and is it not perverse to apply the said proposition to modify the trial Court decree and judgment? SUBMISSIONS: 19. As regards S.A.(MD) No.487 of 2015, Mr.Raguvaran Gopalan, learned counsel appearing on behalf of the plaintiff would support the judgment of the lower appellate Court insofar as it relates to the 'A' schedule property by contending that the learned II Additional District Judge, Trichy, had taken note of the suspicious circumstances surrounding the execution of the Will, Ex.B6 and the active role played by the defendants 1 and 2 with reference to its execution. He would further draw the attention of this Court to a recital in the Will wherein it states that the bequest was being made in favour of the 1st defendant since he being the only son he had to perform the obsequies of his parents, whereas, on the date of the alleged execution, the father was no more. Further, the testatrix had played active and prominent role in the execution of the Will. 20. The learned counsel would further contend that the appellate Court has rightly reversed the judgment of the trial Court insofar as it relates to the 'A' schedule property and no exception can be taken to the same. As regards S.A.(MD) No.104 of 2015, he would contend that the learned Judge has erred in confirming the judgment and decree of the trial Court totally overlooking the fact that the 'B' schedule property is an ancestral joint family property in which the plaintiff also has a share and therefore, S.A.(MD) No. 104 of 2015 should be allowed. 21. As regards S.A.(MD) No.487 of 2015, Mr.M.Subash Babu, learned counsel appearing for the defendants would contend that the Courts below have erred in coming to the conclusion that the plaintiff is entitled to a 1/2 share in the 'A' schedule property totally overlooking Ex.B8-Will. 22. The learned counsel appearing for the defendants would further contend that the plaintiff had not filed any reply statement denying the Will and that the Will was shrouded in suspicious circumstances. He would further argue that the plaintiff as P.W1 has clearly admitted that there is no enmity between herself and D.Ws., 2 and 3. 22. The learned counsel appearing for the defendants would further contend that the plaintiff had not filed any reply statement denying the Will and that the Will was shrouded in suspicious circumstances. He would further argue that the plaintiff as P.W1 has clearly admitted that there is no enmity between herself and D.Ws., 2 and 3. He would therefore contend that the defendants have discharged their onus to prove their Will by examining one attesting witness, D.W2 as well as the Scribe of Ex.B8, Will. The judgment and decree in respect of the 'A' schedule property should be reversed. 23. As regards S.A.(MD) No.104 of 2015, the learned counsel would further contend that the partition deed between the father of the plaintiff, Ramasamy and the 1st defendant had taken place in the year 1985 under Ex.B1. The said Ramasamy died only in the year 1993 nearly 8 years after the execution of the partition deed. At no point of time, the said Ramasamy stated that the partition deed has been fraudulently created. On the contrary, the parties have acted upon the said partition. Therefore, the judgment and decree insofar as it relates to the 'B' schedule property does not require any interference. DISCUSSION: 24. S.A.(MD) No.104 of 2015 arises against the dismissal of the plaintiff's suit with reference to the 'B' schedule property. The 'B' schedule property had fallen to the share of the 1st defendant under Ex.B1, partition deed. Under the said deed, the 1st defendant was allotted item Nos.1 to 4 and thereafter, under Ex.A4, the 1st defendant has purchased item No.5 from out of his own funds in the year 1994. 25. The revenue records stand in the name of the 1st defendant. Further, Ex.B1, partition deed was executed between the 1st defendant and the plaintiff's father in the year 1985. The plaintiff's father, Ramasamy, died only in the year 1993. However, in the interregnum, he has not taken any steps whatsoever to question the partition deed and on the contrary, the partition deed has been acted upon since all the revenue records have been transferred in the name of the 1st defendant. In these circumstances, the plaintiff who claims under the father cannot seek to question the said deed. However, in the interregnum, he has not taken any steps whatsoever to question the partition deed and on the contrary, the partition deed has been acted upon since all the revenue records have been transferred in the name of the 1st defendant. In these circumstances, the plaintiff who claims under the father cannot seek to question the said deed. I find no infirmity in the judgment and decree in A.S.No.253 of 2011 insofar it relates to the suit 'B' schedule property and consequently, the questions of law in S.A.(MD) No.104 of 2015 are found against the plaintiff. 26. As regards the 'A' schedule property, which is the subject matter of S.A.(MD) No.487 of 2015, the lower appellate Court has reversed the judgment and decree of the trial Court taking into account of the fact that the Will in question appears to have been created in suspicious circumstances. The appellants in S.A.(MD) No.487 of 2015 would attempt to dispel the doubts regarding the execution of Ex.B8, Will. On perusal of Ex.B8, Will read with the evidence gives rise to the suspicion that the Will has not been executed in the manner pleaded by the defendants for the following reasons:- (a) D.W2 would depose that Nachammal had dictated the contents of the Will directly to the Scribe, D.W3 and it was directly written on the stamp paper. A perusal of Ex.B8 would show that there is no overwriting or corrections in the deed in the form of striking or adding words found in Ex.B8. This appears to be too unreal especially when the deed is directly taken down on dictation. (b) There is a discrepancy with reference to the execution of Ex.B8, Will since D.W3 would contend that the Will was read over to Nachammal by D.W2, whereas, D.W2 would state that the Will was directly executed on the stamp paper on Nachiammal's instructions. (c) D.W3 is an interested witness being the uncle of the 2nd defendant. (d) D.W1 was an active participant in the execution of the Will though initially she would state that she did not have any knowledge about the Will and its contents, would later state in the chief examination that a sum of Rs. 15,000/- was offered even during the life time of testatrix. (e) Further, the defendants have not taken steps to examine the other witnesses in Ex.B8. 15,000/- was offered even during the life time of testatrix. (e) Further, the defendants have not taken steps to examine the other witnesses in Ex.B8. (f) The active participation of the defendants in the execution of the Will, which is alleged to be executed by the testatrix at the residence of the defendants, cannot be ruled out as the Will has come into existence within a period of 2 months from the demise of the testatrix's husband. 27. Therefore, the lower appellate Court has rightly considered the discrepancies in the oral evidence to show the suspicious circumstances in the execution of Ex.B8, Will and held the same to be a fabricated one. I find no infirmity in the judgment and decree passed in A.S.No.253 of 2011 insofar as it relates to the 'A' schedule property and the substantial questions of law in S.A.(MD) No.487 of 2015 are answered against the defendants. 28. In the result, these Second Appeals are dismissed and the judgment and decree in A.S.No.253 of 2011 on the file of the II Additional District Judge, Trichy, is hereby confirmed. No costs. Consequently, connected miscellaneous petition is also closed.