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2021 DIGILAW 3622 (MAD)

M. Saraswathiammal v. A. Esakki Velar

2021-12-23

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : The concurrent Judgments and decrees passed in O.S.No.249 of 2010 by the Principal District Munsif Court, Tirunelveli and in A.S.No.59 of 2013, by the Principal Sub Court, Tirunelveli, are being challenged in the present Second Appeal. 2. The respondent/plaintiff has instituted a suit in O.S.No.249 of 2010, on the file of the trial Court, directing the defendant to handover the vacant possession of the plaint schedule property to the plaintiff; directing the defendant to pay a sum of Rs.1,500/- being the monthly rent from September 2009 to February 2010 together with interest thereon at the rate of 12% per annum till the date of realization and also directing the defendant to pay a sum of Rs.400/- per month as damages from March 2010 upto the date of handing over the vacant possession of the suit schedule property by the defendant to the plaintiff for his unauthorized use and occupation of the suit schedule property together with interest at the rate of 12% per annum till the date of realization, wherein, the present respondent has been shown as defendant. 3. The case of the plaintiff is that the plaintiff is the absolute owner of the suit property, which is a residential building. The defendant was a tenant in the suit property from 01.04.2004 for a monthly rent of Rs.250/-. As the defendant had failed to pay the rent from the month of September 2009 onwards and as the plaintiff's husband had retired from service, the plaintiff wanted the building for her own use and occupation. Hence, the plaintiff asked the defendant to vacate the suit property. Since the defendant failed to do so, the plaintiff issued a legal notice, dated 13.10.2010, to the defendant terminating the tenancy and calling for the defendant to vacate and deliver the vacant possession on 28.02.2010. The defendant, after receiving the notice, has not vacated the property. Since the defendant did not vacate from the suit property, the plaintiff has filed the suit with the above prayer. 4. The defendant had filed a written statement denying all the averments made in the plaint and submitted that the plaintiff is not the owner of the property and the defendant has not paid a monthly rent of Rs.250/-. For the notice, dated 13.01.2010, the defendant sent a reply notice on 11.02.2010. 4. The defendant had filed a written statement denying all the averments made in the plaint and submitted that the plaintiff is not the owner of the property and the defendant has not paid a monthly rent of Rs.250/-. For the notice, dated 13.01.2010, the defendant sent a reply notice on 11.02.2010. Originally, the suit schedule property and other properties were owned by the defendant's father Arumuga Velar and he executed a Will on 30.09.1991. After the death of Arumuga Velar, the defendant got bequeathed the property through a Will and on 31.12.2009, he had executed a settlement deed in favour of his son Krishnamoorthy. Suppressing the above said facts, the plaintiff has filed the suit with false averments and the same has to be dismissed. 5. Before the trial Court, on the side of the plaintiff, P.W.1 to P.W.3 were examined and Exs.A1 to A6 were marked. On the side of the defendant, D.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.9 was marked and also Ex.X.1 was also marked. 6. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, has dismissed the suit. 7. Aggrieved by the Judgment and decree passed by the trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.59 of 2013. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and confirmed the Judgment and decree passed by the trial Court. 8. Challenging the said concurrent Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff, as appellant. 9. At the time of admitting the present second appeal, this Court had framed the following substantial question of law for consideration: "1) Whether the Courts below are correct in believing Ex.B.6, when the suspicious circumstances are not dispelled with, especially, in the light of Section 111 of the Indian Evidence Act and when there are so many contradictions in the testimony of attesting the witnesses; in such away not satisfying the legal requirements of proving attestation both under the Indian Succession Act and under the Indian Evidence Act?" 10. The learned counsel appearing for the appellant/plaintiff would submit that the Courts below failed to note of the fact that the partition pleaded by the plaintiff has been admitted by D.W.1 and D.W.4 and also further, it was proved through P.W.2 and P.W.3. The Courts below have failed to note that the possession of the original partition with D.W.1 has not been specifically denied by D.W.1 and his failure to produce the original partition deed even though notice has been given to him. The Courts below ought to have taken into consideration Ex.A.2 and Ex.A.5, wherein, the series of tax receipts will prove the possession of the suit schedule house by the plaintiff and further no explanation had been given for the same by the defendant. The Courts below have failed to note that D.W.2 and D.W.4 are none other than the sisters of the defendant, who have categorically admitted the partition, dated 25.09.1978 and further it was admitted by D.W.6, the son of the defendant. 11. The learned counsel appearing for the appellant/plaintiff would further submit that the Courts below have erred in arriving at the conclusion that Ex.B.1 plan relates to the suit schedule property since the said plan is dated 06.11.1979, which dates long before the alleged Will, dated 30.09.1991 said to have been executed by Arumuga Velar in favour of the defendant. The Courts below ought to have come to the conclusion that Ex.B.1 to Ex.B.4 are created for the purpose of the case. The Courts below failed to note that it was the case of the defendant that till 30.09.1991 only Arumuga Velar was the absolute owner of the suit property and hence, Ex.A.1 to Ex.A.4 are the documents created for the purpose of the case. The Courts below have taken into consideration Ex.A.1 to Ex.A.5 which states that the material facts in advancing the case of the defendant, were not pleaded in the written statement and hence those documents ought not to have been taken into consideration. 12. The learned counsel appearing for the appellant/plaintiff would further submit that the Courts below failed to note that the documents marked through D.W.6, dated 23.0.2009 does not relate to the suit property and further D.W.6 was not a proper and relevant witness to advance such pleading. 12. The learned counsel appearing for the appellant/plaintiff would further submit that the Courts below failed to note that the documents marked through D.W.6, dated 23.0.2009 does not relate to the suit property and further D.W.6 was not a proper and relevant witness to advance such pleading. The Courts below ought to have come to the conclusion that there exists landlord and tenant relationship on the basis of Ex.A.1, Ex.A.2 and Ex.A.5 and the evidence of P.W.2 and P.W.3, who are the Village relatives would prove the same. The Courts below have erred in coming to a conclusion that Ex.B.6-document is a true and genuine Will, when no bonafide reason has been stated for non-allotment of properties to all the sons. The defendant was in a dominating possession over Arumuga Velar and the suspicious circumstance has not been dispelled with for arriving at the conclusion that the Will is a genuine one. The Courts below have failed to note that the statutory requirement under the Indian Evidence Act and Indian Succession Act have not been properly complied with according to the legal requirement of proving attestation by the attesting witness and hence, Ex.B.6 has to be discarded and prayed for allowing the Second Appeal. 13. Though notice has been served and the name of the respondent has been printed in the cause-list, none appeared on behalf of the respondent either in person or through counsel. 14. Heard the learned counsel for the appellant and also perused the records carefully. 15. The claim made by the plaintiff is that she is the absolute owner of the suit property, but there is absolutely no pleading as to how the plaintiff had acquired the suit property. There is only a statement in the plaint that the plaintiff is the owner of the suit property. From Ex.A.1, it is seen that originally the suit property belongs to one Manthiramoorthy, who is the husband of the plaintiff. On a perusal of Ex.A.1, it is seen that plaintiff's husband had executed a gift deed with respect to the suit property on 14.03.1984 in favour of the plaintiff. In Ex.A.1-Gift Deed, it is narrated that P.W.1-Manthiramoorthy was allotted the property by virtue of a partition deed, dated 25.09.1978. Admittedly, the above said partition deed was not produced before the trial Court as well as the first Appellate Court. In Ex.A.1-Gift Deed, it is narrated that P.W.1-Manthiramoorthy was allotted the property by virtue of a partition deed, dated 25.09.1978. Admittedly, the above said partition deed was not produced before the trial Court as well as the first Appellate Court. In the absence of any partition deed being produced before the Courts below to prove the said partition, the plaintiff tired to prove her case by examining P.W.2 and P.W.3 as witnesses. P.W.1 to P.W.3, the alleged attesting witnesses in the partition deed had stated in their proof affidavit that there was an oral family partition between the plaintiff's husband Manthiramoorthy, defendant and defendant's father and the decision made on the above said oral partition was subsequently got reduced into writing on 25.09.1978. 16. Further, P.W.2 in his evidence, has stated that in the presence of the Panchayathars, a partition was effected and the same was reduced into writing and in that deed, he affixed his signature and as per the arrangement, vacant land of a defined extent was allotted to Mandiramoorthy and the existing hut was allotted to the defendant and another extent of the vacant land has been allotted to one Paramasivam and the defendant was allotted totally two houses, accordingly, as per the said partition, the suit properties were allotted to the plaintiff and the defendant and P.W.2 has admitted that he has signed in the said document. According to P.W.2, partition was effected in the presence of Panchayatars and on that day, document was prepared. The version of the plaintiff that the partition was orally effected earlier and subsequently, it was reduced into writing could not be accepted, as no valid evidence to the effect. Admittedly, the alleged partition deed was not a registered one. It is well settled law that when a partition is reduced into writing, it shall be registered as per the value. Even if there is such a partition deed, dated 25.09.1978, since it is an unregistered one, the same cannot be relied upon and accepted as there is a dispute. Admittedly, the alleged partition deed was not a registered one. It is well settled law that when a partition is reduced into writing, it shall be registered as per the value. Even if there is such a partition deed, dated 25.09.1978, since it is an unregistered one, the same cannot be relied upon and accepted as there is a dispute. According to P.W.2, the partition was effected and document was executed in the presence of Pancahyathars, but another witness to the said partition viz., P.W.3, has stated that the partition deed was executed in the house of one Chakkaram Asari and that he has signed as a witness in the partition deed, but the said Chakkaram Asari was not examined as a witness. When P.W.2 and P.W.3 has given a contradictory evidence, the same has not been considered by the trial Court as well as the first Appellate Court. 17. Further, it is the case of the plaintiff that the original partition deed is in the hands of the defendant and a notice to produce the document was given to the defendant. Even after that, the defendant did not produce it. But during the cross-examination of D.W.1, a document was shown to D.W.1 suggesting that it was the copy of the partition deed and the original of the partition deed was available with the defendant, but no fruitful answer is brought out. According to the plaintiff, the original deed was available with the defendant, the plaintiff could have marked the copy of the said partition deed as a secondary evidence. But on the side of the plaintiff, she failed to produce the copy of the partition deed. P.W.1 to P.W.3-the alleged attesting witnesses in the partition deed stated in their proof affidavit that there was an oral family partition between the plaintiff's husband Manthiramoorthy, defendant and the defendant's father and the above said oral partition was subsequently reduced into writing, the said document was not produced before the Courts below to decide the issue. 18. On going through the statement of D.W.2, it is seen that D.W.2 has pleaded ignorance about the partition deed. D.W.4 in his cross-examination admitted the partition deed and later, she has refuted the said evidence. If there was a partition on 25.09.1978, since it is unregistered one, it cannot be taken as an admissible evidence. 18. On going through the statement of D.W.2, it is seen that D.W.2 has pleaded ignorance about the partition deed. D.W.4 in his cross-examination admitted the partition deed and later, she has refuted the said evidence. If there was a partition on 25.09.1978, since it is unregistered one, it cannot be taken as an admissible evidence. In the absence of any document produced to prove that the suit property was allotted to the plaintiff's husband, he has got no right to gift it to the plaintiff. The defendant claimed title over the suit property through Ex.B.6-Will. It is seen that the above Will was executed on 30.09.1991, which is a registered document. As per the Will, the suit property is on the South of the East-West pathway. Under the Will, the present suit property was bequeathed to the defendant and East of the house bearing No.11B, a property with house bearing No.11A was bequeathed in favour of the plaintiff's husband. Eastern side property was given to the defendant's brother Paramasivan. On the side of the defendant, to prove Ex.B.6-Will, D.W.2 and D.W.4, who are the sisters of the plaintiff's husband, were examined. Both of them have clearly deposed that their father signed in the Will and they signed as attesting witness in the presence of their father. They have further deposed that their father was in a sound state of disposing mind at the time of execution of the Will. There is some contradictions in the evidence of D.W.2 and D.W.4. During cross-examination of D.W.2 and D.W.4, they have stated that the Document Writer had written the Will in hand and then they signed it. It is seen from Ex.B.6-Will that the document is type written. The evidence of D.W.2 and D.W.4 except that the Will was hand written or type written was not clearly proved, in all other aspects, both the witnesses have clearly deposed about the execution of the Will. Therefore, it is clear that the Will was proved according to law. 19. When the plaintiff contended that the Will is not genuine and suspicious, the plaintiff has to prove the same and any suspicious circumstances, under which, the same was executed. Therefore, it is clear that the Will was proved according to law. 19. When the plaintiff contended that the Will is not genuine and suspicious, the plaintiff has to prove the same and any suspicious circumstances, under which, the same was executed. But during trial, wherein D.W.1 to D.W.3 clearly admitted that they are sisters of the plaintiff and the defendant and their father Arumuga Velar has executed the Will, but the plaintiff submitted that the suit property is an ancestral property and their father has got no right to execute a Will. In the absence of any pleading by the plaintiff that the suit property is an ancestral property, the plaintiff has to prove and plead that the suit property is an ancestral property. The plaintiff's case is that the suit property was allotted to his father in the partition and the plaintiff now cannot claim that the suit property is an ancestral property and the father of the plaintiff cannot execute a Will with respect to ancestral properties which is not proved. Hence, Ex.B.6-Will cannot be held that it was executed without any right. Only as per the partition, the plaintiff's father has got the suit property. That being the case, the plaintiff cannot now come and state that it was an ancestral property and also further admitted that after the partition, dated 25.09.1978, he constructed a house in the suit property. The construction was made in the year 1983, but no document was filed to prove that he had obtained permission for construction of the house. The plaintiff's claim that the property is in a Panchayat area, he needs no permission is not accepted. But on the side of the defendant, Ex.B. 1-plan for construction of the house was produced and it is in the name of the father of the plaintiff and defendant namely, Arumuga Velar and it was of the year 1979 would prove that the defendant had valid point for consideration and he is in possession. 20. On a perusal of Ex.B.1-plan, it is seen that on the east of the proposed site, there is passage and North is a street. P.W.1 and P.W.2 have clearly admitted that there is a passage on the East of the schedule property. 20. On a perusal of Ex.B.1-plan, it is seen that on the east of the proposed site, there is passage and North is a street. P.W.1 and P.W.2 have clearly admitted that there is a passage on the East of the schedule property. Hence, it is clear that Ex.B.1-plan was obtained in the name of the defendant's father for the construction of the house in the suit schedule property. On the side of the plaintiff, no documents have been produced to prove that only the plaintiff's husband had constructed the house. The house-tax receipts produced on the side of the plaintiff are after the year 2009 and 2011. If the plaintiff's husband constructed a house in the year 1983 itself, he would have paid tax and in possession of some tax receipts and documents relating to his possession of the land. From the above, it is seen that the plaintiff had failed to prove that she is the owner of the suit property and she is in possession of the same. 21. The landlord and tenant relationship was not at all proved. In the plaint, it is stated that the defendant had neglected to pay the rent from the month of September, 2009, but other than the evidence of P.W.2 during cross-examination on 07.12.2011 that before two months of cross-examination P.W.1 had received rent from the defendant and not proved otherwise. The evidence of P.W.2 is contradictory to the version of the plaintiff stated in the plaint. In the absence of any documentary evidence, the Court has come to the conclusion that the plaintiff had failed to prove the landlord and tenant relationship between the plaintiff and the defendant. 22. In the plaint, there is only a pleading to the effect that the plaintiff is the absolute owner of the suit property. Only at the time of trial, she produced Ex.A.1-gift deed executed by her husband P.W.1- Manthiramoorthy. There is no pleading as to how she has acquired the property, in the plaint. Ex.A.3 is the notice sent by the plaintiff to the defendant and for that, the defendant sent Ex.B.8-reply notice on 11.02.2010. In that notice itself, the defendant has clearly disputed the title of the plaintiff and stated that the defendant acquired the property by way of Ex.B.6-Will. 23. Ex.A.3 is the notice sent by the plaintiff to the defendant and for that, the defendant sent Ex.B.8-reply notice on 11.02.2010. In that notice itself, the defendant has clearly disputed the title of the plaintiff and stated that the defendant acquired the property by way of Ex.B.6-Will. 23. It is the submission of the learned counsel for the appellant/plaintiff that whether the Courts below are correct in believing Ex.B.6 when the suspicious circumstances are not dispelled with, especially, in the light of Section 111 of the Indian Evidence Act and when there are so many contradictions in the testimony of attesting witnesses, in such a way not satisfying with the legal requirements of proving attestation, both under Indian Succession act and under the Indian Evidence Act. 24. Section 111 of the Indian Evidence Act reads as follows:- 111. Proof of good faith in transactions where one party is in relation of active confidence. –– Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Illustrations (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney. (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. 25. In the case on hand, attesting witnesses were examined and the Will is proved and the plaintiff has miserably failed to prove his case. The defendant has proved his case and both the Courts below have correctly dismissed the suit and the substantial question of law is answered as against the appellant/plaintiff and in favour of the respondent/defendant. 26. In fine, this second appeal is dismissed, without any order as to costs and the judgment and decree, dated 11.08.2018 passed in A.S.No.59 of 2013, on the file of the Principal Sub Court, Tirunelveli is confirmed. Consequently, connected Miscellaneous Petition is closed.