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2021 DIGILAW 1441 (MAD)

R. Uma Devi v. C. Jeyachandran

2021-04-23

P.T.ASHA

body2021
JUDGMENT : 1. The plaintiff in the suit O.S.No.327 of 2004 is the appellant before this Court. The parties are arrayed in the same ranking as in the suit. 2.The facts in brief which are necessary for disposing of the above Second Appeal are hereinbelow narrated: PLAINTIFF'S CASE: The plaintiff has filed the suit for a Partition and separate possession of her 1/4th share in the suit schedule properties which consisted of 5 items of the properties. It is the case of the plaintiff that the properties in question were the ancestral joint family properties of her father-in-law Chinaraji (father of her husband Ravi). The said Chinaraji died leaving behind him surviving wife, the 2nd defendant, his sons, Ravi, the plaintiff's husband, Jeyachandran and his daughter Jayalakshmi as his legal representatives to succeed to the joint family properties. The case of the plaintiff is that her husband was suffering from AIDS and was totally bedridden and undergoing treatment. The 1st defendant has appeared to have got a Release Deed dated 15.06.2004 executed as if the same was executed by her husband Ravi. The plaintiff is not aware of such Deed and within a few days of filing the divorce application, her husband Ravi died. The plaintiff would submit that the Release Deed is created by fraud and undue influence and is therefore not a valid document and being the wife of the deceased Ravi, she is entitled to a share in the suit properties along with the defendants. Since the 1st defendant had taken a defence that the daughter Jayalakshmi had not been impleaded the plaintiff had filed an application to implead the said Jayalakshmi and she had been impleaded in the proceedings vide order dated 05.09.2006 in I.A.No.664 of 2005. The plaintiff would submit that despite her request for amicable partition, the defendants had not come forward to partition the properties, hence, they instituted the suit. WRITTEN STATEMENT OF THE 1st DEFENDANT: 3.The 1st defendant had filed a Written Statement inter alia contending that the suit properties were not the ancestral joint properties of his father Chinaraji and some of the properties have been purchased by himself, deceased Ravi and the other brother Sekar from third parties. The 1st defendant had stated that his father had died leaving behind his wife, the 2nd defendant, his sons Ravi, the 1st defendant and one Sekar and daughter Jayalakshmi. The 1st defendant had stated that his father had died leaving behind his wife, the 2nd defendant, his sons Ravi, the 1st defendant and one Sekar and daughter Jayalakshmi. It was also stated that Sekar thereafter died issueless as bachelor. 4.The defendants admitted the plaintiff's case that her husband was suffering from AIDS and was completely bedridden. He however denied the allegations that he had exercised undue influence and fraudulently created the Release Deed. He would contend that the said Ravi was unable to meet his medical expenses and hence, he received a sum of Rs.90,000/- on 15.06.2004 and executed a registered Release Deed and relinquished his share in favour of the 1st defendant and therefore, the 1st defendant is the absolute owner of the properties. The 1st defendant would further submit that the plaintiff has deserted her husband immediately on coming to know that he was suffering from AIDS and she has also initiated criminal proceedings against her husband and the said Ravi was forced to pay a sum of Rs.37,000/- on two occasions, i.e., Rs.25,000/- on 03.03.2004 and a sum of Rs.12,000/- on 22.04.2004. 5.The criminal complaint filed by the plaintiff was taken on file in C.S.R.No.36/2004 by the All Women Police Station, Thirupattur. The 1st defendant would submit that while executing the Release Deed, the deceased Ravi had received a sum of Rs.90,000/- only for the purpose of meeting his medical expenses and for paying the amounts to the plaintiff. He would also submit that the said Ravi had filed H.M.O.P.No.43 of 2004 on the file of the Sub Court, Thirupattur seeking dissolution of his marriage with the plaintiff. TRIAL COURT: 6.The plaintiff had examined herself as P.W.1 and her father was examined as P.W.2. She had not filed any documentary evidence on her side. The 1st defendant had examined himself as D.W.1 and one Shanmugham and Suharaj who were examined as D.W.2 and D.W.3 were the witnesses to the Ex.B.1 - Release Deed. D.W.4 is the Scribe of Ex.B.1 and D.W.5 is the Sub Inspector of Police of the All Women Police Station, Thirupattur. The documents were marked on the side of the defendants as Ex.B.1 to Ex.B.9. 7.The learned District Munsif, Thirupattur, on analysing of the oral and documentary evidence decreed the suit. D.W.4 is the Scribe of Ex.B.1 and D.W.5 is the Sub Inspector of Police of the All Women Police Station, Thirupattur. The documents were marked on the side of the defendants as Ex.B.1 to Ex.B.9. 7.The learned District Munsif, Thirupattur, on analysing of the oral and documentary evidence decreed the suit. The learned District Munsif rendered a finding that the deceased Ravi was not physically and mentally fit to execute the Release Deed and even according to the 1st defendant, the said Ravi was bedridden few months prior to his death. The learned Judge also found that the signature affixed in Ex.B.1 – Release Deed appeared suspicious and it had no resemblance of the signature which was executed three years prior to that. The learned Judge also took note of the fact that D.W.5 has not supported the case of the defendants that the amounts have been paid to the plaintiff at the Police Station. The learned Judge therefore decreed the suit. APPELLATE COURT: 8.Aggrieved by the said Judgment and Decree, the defendants had filed A.S.No.4 of 2011 on the file of the learned Subordinate Judge, Thirupattur. The learned Sub Judge reversed the Judgments and Decree of the trial Court on the ground that the deceased Ravi had executed Ex.B.1 - Release Deed after receiving amounts from the defendants. The learned Sub Judge was of the view that the Release Deed had been executed by the deceased Ravi and D.W.4 in his deposition has given reasons as to why there were two signatures in Ex.B.1. The learned Judge has also taken into consideration the evidence of D.W.1 and D.W.2 to come to the conclusion that the Release Deed had been executed and amounts have been given to the said Ravi. The learned Judge also considered the fact that the plaintiff had deserted her husband and also received a sum of Rs.37,000/- by filing a complaint before All Women Police Station. The learned Judge, considering the fact that the deceased Ravi owed money to the third parties as he had borrowed money for his treatment and as he required money to pay the maintenance to the plaintiff, accepted the case of the defendants and allowed the Appeal setting aside the Judgment and Decree of the trial Court. The learned Judge, considering the fact that the deceased Ravi owed money to the third parties as he had borrowed money for his treatment and as he required money to pay the maintenance to the plaintiff, accepted the case of the defendants and allowed the Appeal setting aside the Judgment and Decree of the trial Court. SUBMISSIONS: 9.Ms.A.L.Gandhimathi, learned counsel appearing on behalf of the appellant would first draw the attention of this Court to the recitals of the Ex.B.1 - Release Deed which would show that a sum of Rs.90,000/- has been paid by the 1st defendant to the said Ravi on 15.06.2004, the date on which the Release Deed is said to have been executed in favour of the 1st defendant. She would then invite the Courts notice to the evidence of D.W.1, D.W.2 and D.W.3 to substantiate her plea that a sum of Rs.90,000/- had not been paid since each of the witnesses has taken contradictory stand. The 1st defendant as D.W.1 would submit that Rs.90,000/- was paid on 15.06.2004 to Ravi on the date of execution of the Release Deed, however, in his cross examination, he would state that out of a sum of Rs.90,000/-, Rs.60,000/- was paid to one Narayana Rao and the remaining Rs.30,000/- was paid to the others from whom the amounts have been borrowed by Ravi and there is no clarity to whom the amounts have been paid. D.W.2 - Shanmugam, one of the witnesses to the Release Deed - Ex.B.1 would submit that a sum of Rs.90,000/- was paid three days prior to the registration of documents and that out of Rs.90,000/-, Rs.10,000/- was taken by him which was the sum that Ravi owed him and Rs.80,000/- was paid to Perumal. D.W.3-Suharaj yet another witness of Ex.B.1 - Release Deed took the stand that on the very same day on which the Release Deed was executed Rs.10,000/- was given to D.W.2 - Shanmugam and the remaining of Rs.80,000/- was paid to Perumal. Therefore, the allegation that a sum of Rs.90,000/- paid for consideration for Ex.A.1 appears to be a false statement. In the face of the evidence of D.W.1, D.W.2 and D.W.3., she would further submit that the deceased Ravi was in the habit of putting his initials in the English language however in Ex.B.1, the entire name and initials have been signed in the vernacular. In the face of the evidence of D.W.1, D.W.2 and D.W.3., she would further submit that the deceased Ravi was in the habit of putting his initials in the English language however in Ex.B.1, the entire name and initials have been signed in the vernacular. 10.A perusal of the Release Deed would substantiate the arguments of the learned counsel, in Ex.B.2, Ravi has signed in English language and signed in the vernacular. The learned counsel would submit that there are suspicious circumstances to show that the person who had executed the Deed before the Sub Registrar may not have been cited the said Ravi. She would submit that the learned Appellate Judge has failed to consider the evidence of D.W.5, who is in her cross examination agreed that she was not aware that any amounts were paid to the plaintiff herein. She would therefore argue that once the 1st defendant is not able to prove the genuineness of Ex.B.1 and that the consideration has passed to the said Ravi under the Deed, the Release Deed fails and she being the legal heir of the deceased Ravi is entitled for partition. 11.Per contra, Mr.V.Manohar, learned counsel appearing on behalf of the defendants would submit that it is an admitted fact that the said Ravi was suffered from AIDS and was in need of money to meet his medical expenses. He would further submit that DW2 and DW3 have adduced evidence to show that the Release Deed had been executed and the amounts have been given to the said Ravi and the execution has also been proved by DW4. The fact that the document is a registered one would show the same to be a genuine one. DISCUSSION: 12.Heard the learned counsels appearing on either side and perused the records. 13.The sole defence which has been put forwarded by the defendants to the suit for partition is that the deceased Ravi had executed a Release Deed in favour of the 1st defendant on 15.06.2004. Therefore, it is necessary to briefly examine the recitals contained in the said Release Deed. 14.The recitals in the Ex.B.1-Release Deed would read as follows: Image 15.Therefore, the Deed would read that on the date of the execution of the Release Deed, a sum of Rs.90,000/- in cash has been paid to the said Ravi. Therefore, it is necessary to briefly examine the recitals contained in the said Release Deed. 14.The recitals in the Ex.B.1-Release Deed would read as follows: Image 15.Therefore, the Deed would read that on the date of the execution of the Release Deed, a sum of Rs.90,000/- in cash has been paid to the said Ravi. When the oral evidence in this regard is considered, in his chief examination, the 1st defendant as D.W.1 would reiterate the contents of the Release Deed i.e., he would submit that on the date of the Release Deed, a cash of Rs.90,000/- has been given to the said Ravi so as to enable him to meet his medical expenses as debts, however, in his cross examination, the 1st defendant would submit that Rs.60,000/- was paid to one Narayana Rao and the remaining Rs.30,000/- has been paid to meet the other expenses. He would say that this amount was paid by him and Ravi, in the residence of Narayana Rao. The evidence of DW2 in this regard is that a sum of Rs.30,000/- was paid three days prior to the execution of the Deed and out of this Rs.90,000/-, he had taken Rs.10,000/- which is due to him and the remaining Rs.80,000/- paid to Perumal. DW2, the other witness to Ex.B.1 would initially state that Rs.90,000/- was paid to Ravi in cash and thereafter, he would also state that Rs.10,000/- was paid to DW2 and Rs.80,000/- to Perumal. From the evidence, it is therefore clear that a sum of Rs.90,000/- as stated in the Release Deed had not been paid and there is a contradiction in the evidence of DW1, DW2 and DW3. 16.The next ground on which the defendants would deny the partition to the plaintiff is that she has been paid a sum of Rs.37,000/- before the All Women Police Station pursuant to the complaint lodged by her. In the Written Statement filed by the 1st defendant, he would submit that a sum of Rs.25,000/- was paid to the plaintiff by Ravi on 03.03.2004 and a further sum of Rs.12,000/- was paid on 22.04.2004. The complaint against Ravi has been lodged by the plaintiff on 03.03.2004. In the Written Statement filed by the 1st defendant, he would submit that a sum of Rs.25,000/- was paid to the plaintiff by Ravi on 03.03.2004 and a further sum of Rs.12,000/- was paid on 22.04.2004. The complaint against Ravi has been lodged by the plaintiff on 03.03.2004. DW5, the Sub Inspector of All Women Police Station though in her chief examination would reiterate the contents of the Written Statement, however, in her cross examination, she would submit that there is no proof to show that a sum of Rs.37,000/- as pleaded has been paid to the said plaintiff. Therefore, the defendants had not been able to substantiate this contention as well. 17.It is therefore clear that although a petition for divorce has been instituted by the husband divorce has not been granted since the said Ravi had died within a few days of filing the said application on 23.06.2004. The HMOP has been instituted on 16.06.2004. A reading of the petition which has been marked as Ex.P.5 would show that the deceased Ravi was due and owing the balance amount of nearly Rs.30,000/- to his wife. A reading of the petition would further indicate that the deceased husband had acknowledged the fact that he owed money to his wife and the same had not been paid. Therefore, considering the fact that the said Ravi had died intestate leaving behind him surviving his wife, she is entitled to a share in the suit properties. Since the defendants have not been able to prove the passing of consideration as contained in the Release Deed the execution of the Release Deed is shrouded in suspicious circumstances an therefore cannot be relied upon. In these circumstances, the Second Appeal is allowed, the Judgment and Decree of the learned Sub Judge, Thirupattur in A.S.No.4 of 2011 dated 25.04.2012 is set aside and the Judgment and Decree in O.S.No.327 of 2004 on the file of the learned District Munsif, Thirupattur is restored. However, there shall be no order as to costs.