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2022 DIGILAW 1230 (MAD)

B. Gopu v. A. Punniakotti

2022-06-06

S.KANNAMMAL

body2022
JUDGMENT (Prayer: Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 of the Civil Procedure Code against the Judgment and Decree passed in O.S.No.62 of 2008 dated 30.06.2011 on the file of the Additional District Judge, Fast Track Court No.1, Poonamallee.) 1. The plaintiff, in O.S.No.62 of 2008, having suffered a decree before the trial court, has come forward with this appeal. 2. The plaintiff has filed the suit for partition. According to the plaintiff, his father Balu Naicker and the 1st defendant namely A.Punniakotti are brothers. It is stated that the plaintiff's father and the 1st defendant have purchased the suit property jointly by means of a registered sale deed dated 15.10.1956. Therefore, his father is entitled to half share in the suit property and another half share belongs to the 1st defendant. However, the 1st defendant, inspite of demands made by the plaintiff, has refused to part with half share in the suit property. Even otherwise on 23.12.2005, the mother of the plaintiff by name Saradha had executed a settlement deed in favour of the plaintiff, by virtue of which the plaintiff is entitled to half share belonged to his father and for the remaining half share, the present suit is filed. It is stated that his sister Prabha had already orally relinquished her share in the suit property and therefore, there is no impediment for the plaintiff to get a share in the suit property. As the 1st defendant failed and neglected to part with the share in the suit property, the plaintiff had sent a notice dated 24.11.2007 calling upon the 1st defendant to come for an amicable partition. Though the notice dated 24.11.2007 was received by the 1st defendant, he did not issue any reply notice. Therefore, the suit was filed. 3. On notice, the 1st defendant filed a Written Statement stating that the suit property was jointly purchased by plaintiff's father Balu Naicker, 1st defendant and their mother Kamatchi Ammal on 15.10.1956. Kamatchi Ammal died leaving behind the plaintiff's father Balu Naicker and the 1st defendant as legal heirs and therefore they both are equally entitled to 17 cents out of 35 cents of the property covered in the sale deed dated 15.10.1956. Kamatchi Ammal died leaving behind the plaintiff's father Balu Naicker and the 1st defendant as legal heirs and therefore they both are equally entitled to 17 cents out of 35 cents of the property covered in the sale deed dated 15.10.1956. According to the 1st defendant, the father of the plaintiff by name Balu Naicker died as a Bachelor and therefore, the plaintiff's mother can at best be treated as concubine of Balu Naicker. While so, the plaintiff cannot, as a matter of right, seek for partition of the suit property. It was also stated that the mother of the plaintiff has no legal right to execute the settlement deed dated 23.12.2005 in favour of the plaintiff and it is a sham and nominal document. It was stated that the father of the plaintiff had already executed documents conveying the suit property in favour of the 3rd parties and therefore, the suit property is not available for partition. It is the definite defence of the 1st defendant that the plaintiff is a stranger as far as the suit property is concerned and therefore he prayed for dismissal of the suit. 4. Pending suit, the defendants 2 to 5 have impleaded themselves as parties by order passed in I.A.No.1441 of 2009. After impleadment, the 2nd defendant filed a Written Statement. According to the 2nd defendant, the father of the plaintiff had executed a registered Will dated 12.09.2001 in favour of her husband by name Krishnan. On the death of Balu Naicker, the Will came into force on 12.09.2001 and the husband of the 2nd defendant namely Krishnan has become the owner of the suit property. On the death of Krishnan, the defendants 2 to 5 who are his legal heirs, have become lawful owners of the suit property. In the Written Statement of the 2nd defendant, a reference was made to the suit in O.S.No.688 of 2005 filed by the plaintiff for a declaratory relief as against the husband of the 2nd defendant Krishnan and two others. In the suit, the plaintiff had sought for a declaration of the plaintiff's title and for consequential injunction. However, the filing of the suit in O.S. No. 688 of 2005 has been suppressed by the plaintiff in the present suit. In the suit, the plaintiff had sought for a declaration of the plaintiff's title and for consequential injunction. However, the filing of the suit in O.S. No. 688 of 2005 has been suppressed by the plaintiff in the present suit. In any event, the defendants 2 to 5 are in possession of the suit property on their own right and the Will dated 12.09.2001 executed by father of the plaintiff has been acted upon. Therefore, the plea of joint possession made by the plaintiff as if he is also in joint possession of the suit property is legally not sustainable. Consequently, the valuation of the suit under Section 37(2) of the Tamil Nadu Court Fee and Suit Valuation Act is not proper and the suit ought to have been valued under Section 37(1) of the said Act. Therefore, the 2nd defendant prayed the trial Court to decide the valuation of the suit as a preliminary issue. With the above pleadings the parties went for trial. 5. During the course of trial, on behalf of the plaintiff, he examined himself as P.W.1 and Ex.A1 to A7 were marked. On behalf of the defendants the 2nd defendant examined herself as D.W.1 and three other witnesses were examined as D.W.2 to D.W.4 and Exs.B1 to B16 were marked as documents on their side. 6. The trial Court framed the following issues for consideration in the suit:- 1. Whether the plaintiff is entitled for partition and separate possession of ½ share in the suit property? 2. Whether the alleged settlement deed executed by plaintiff's mother in favour of the plaintiff is true? 3. To what relief the plaintiff is entitled? 7. The trial Court, on analyzing the oral and documentary evidence had dismissed the suit on the following grounds:- (i) The filing of the suit in O.S.No.688 of 2005 has been suppressed by the plaintiff while filing the plaint. (ii) While seeking partition, the plaintiff did not choose to implead his sister Prabha as one of the plaintiffs and therefore the suit is liable to be dismissed for non-joinder of necessary party. (iii) The Will dated 12.09.2001 has been filed by the 2nd defendant showing that the suit property was already bequeathed in favour of Krishnan, husband of the 2nd defendant. (iv) The father of the plaintiff namely Balu Naicker died and therefore, the Will dated 12.09.2001 Ex.B6 came into force. (iii) The Will dated 12.09.2001 has been filed by the 2nd defendant showing that the suit property was already bequeathed in favour of Krishnan, husband of the 2nd defendant. (iv) The father of the plaintiff namely Balu Naicker died and therefore, the Will dated 12.09.2001 Ex.B6 came into force. By virtue of Ex.B6, the plaintiff is estopped from filing the suit for partition as against the defendants. (v) The defendants 2 to 5 have clearly proved that they are in possession of the suit property and the plea of joint possession raised by the plaintiff has not been proved in the manner known to law. (vi) In the plaint, the plaintiff had averred that his father Balu Naicker died intestate, but Ex.B6 disproved the same. (vii) In the written statement of the 1st defendant, it was clearly stated that Balu Naicker died. However, the plaintiff claimed himself to be the son of Balu Naicker and filed the instant suit. Further more, Balu Naicker had already executed a Will dated 06.09.2001 in favour of the plaintiff in respect of some other property. But, even that was also suppressed by the plaintiff while filing the plaint. 8. In effect, it was concluded by the trial Court that the plaintiff has not come forward with clean hands while filing the present suit and therefore, dismissed the suit filed by the plaintiff for partition. 9. Mr. A. Kumar, learned counsel for the appellant/plaintiff would vehemently contend that under Ex.A4-registered settlement deed dated 23.12.2005, the mother of the plaintiff Saradha had settled half share in the suit property belonged to her husband Balu Naicker in favour of the plaintiff. His sister Prabha orally relinquished her share in the suit property. While so, the trial Court dismissed the suit on the ground that the plaintiff's sister is a necessary party and non-joinder of the plaintiff's sister is fatal to his case. According to the learned counsel, a suit for partition cannot be dismissed on the ground of non-joinder of parties because whatever the shares available to the other co-owners will be decided only at the time of final decree proceedings. Therefore, it is his contention that non-joinder of his sister Prabha will not be a ground for dismissal of the suit. Further, it is contended that Ex.B6-Will in favour of Krishnan, the husband of 2nd defendant has not been proved in the manner known to law. Therefore, it is his contention that non-joinder of his sister Prabha will not be a ground for dismissal of the suit. Further, it is contended that Ex.B6-Will in favour of Krishnan, the husband of 2nd defendant has not been proved in the manner known to law. The learned counsel for the appellant had taken this Court to the contents of Ex.B6-Will and submitted that in page No.5 of the Will, the word has been omitted. To be precise, in the Will, it was only stated thus. 10. This, according to the learned counsel for the plaintiff/ appellant, is one of the suspicious circumstances surrounding the Will under Ex.B4. Further more, the learned counsel for the appellant also submitted that the trial Court failed to consider as to why the father of the plaintiff has to execute two Wills namely, Ex.B6 dated 12.09.2001 and Ex.A8 Will dated 06.09.2001. Further, the defendants failed to examine the Scribe or attesting witness of the Will to clear the air of controversy surrounding the Will. In any event, the trial Court did not discuss as to why Balu Naicker has to execute two different Wills on two different dates instead of writing a single Will and to settle all his properties owned by him. This is yet another suspicious circumstances surrounding the Will but the same was lost sight off by the trial Court. In any event, the defendants 2 to 5 did not discharge their initial burden of proving the genuineness of Ex.B6-Will and therefore the trial Court ought to have decreed the suit for partition instead of dismissing it. 11. On the other hand, Mr. A. Jenasenan, learned counsel for the respondents 2 to 5 would contend that the suit was filed for partition and it is for the plaintiff to prove that the suit properties are available for partition as on the date of filing the suit. The plaintiff had earlier filed O.S.No.688 of 2005 against the husband of the 2nd defendant Krishnan and two others seeking for declaration and consequential injunction. In that suit, the plaintiff had categorically admitted that he is out of the possession of the suit property. On the other hand, in the present suit the plaintiff claimed that he is in joint possession of the suit property and therefore, valued the plaint under Section 37 (2) of Tamil Nadu Court Fee and Suit Valuation Act. In that suit, the plaintiff had categorically admitted that he is out of the possession of the suit property. On the other hand, in the present suit the plaintiff claimed that he is in joint possession of the suit property and therefore, valued the plaint under Section 37 (2) of Tamil Nadu Court Fee and Suit Valuation Act. Even otherwise the plaintiff has to first prove that he is the legal heir Balu Naicker especially when the said Balu Naicker died as a Bachelor. The trial Court has rightly pointed out that Prabha, sister of the appellant was not impleaded as a party to the suit while the plaintiff pleaded that his sister had orally relinquished her share in the suit property. Such a pleading is not sufficient for the plaintiff to maintain the suit and he ought to have formally impleaded his sister Prabha. The trial Court, pointing out the above insufficiency in the pleading of the plaintiff in the plaint coupled with the averment that Balu Naicker died intestate, has rightly held that Ex.B6 executed by Balu Naicker in favour of the husband of the 2nd defendant-Krishnan will render the suit not maintainable and liable only to be dismissed. In effect, the trial Court had throughly appreciated the oral and documentary evidence filed on behalf of both sides and come to a correct conclusion to dismiss the suit. The learned counsel, therefore prayed this Court to dismiss the appeal by confirming the decree and judgment passed by the trial Court. 12. Heard the learned counsel on either side and perused the materials placed on record. The following points emerges for consideration in this appeal:- (i) Whether the plaintiff has proved that the suit properties are available for partition as on the date of institution of the suit? (ii) Whether Ex.B6, Will in favour of the husband of the second defendant would be a bar for the plaintiff to institute the present suit? (iii) Whether the non-joinder of sister of the Plaintiff namely Prabha will render the suit as not maintainable and for dismissal of the suit for nonjoinder of necessary party? 13. The plaintiff had filed the suit for partition. Originally the suit was filed only as against the 1st defendant. (iii) Whether the non-joinder of sister of the Plaintiff namely Prabha will render the suit as not maintainable and for dismissal of the suit for nonjoinder of necessary party? 13. The plaintiff had filed the suit for partition. Originally the suit was filed only as against the 1st defendant. Subsequently on coming to know about the pendency of the present suit, the defendants 2 to 5 have themselves impleaded as parties to the suit and contested it. 14. The plaintiff is the son of Balu Naicker. The 1st defendant is the brother of Balu Naicker. It is an admitted fact that the suit property was purchased jointly by Balu Naicker, the 1st defendant and their mother Kamatchi Ammal by means of a registered sale deed dated 15.10.1956. Even the 1st defendant did not dispute the fact that the father of the plaintiff is also having half share in the suit property. However, he claimed that Balu Naicker during his life time, had executed various documents and successfully alienated the suit property in favour of third parties. This defence of the 1st defendant has been proved to be correct by virtue of Ex.B6 registered Will produced by the defendants 2 to 5. As per Ex.B6-Will, Balu Naicker bequeathed the suit property in favour of Krishnan, husband of the 2nd defendant who is none other than the son of Balu Naicker's elder sister. The husband of the 2nd defendant died and thereafter the defendants 2 to 5 are in possession and enjoyment of the suit property as their own. To prove the execution of Ex.B6-Will, the defendants have examined Jayaraman and Palani D.W.2 and D.W.3. They have categorically deposed that Balu Naicker had executed the Will under Ex.B6 in favour of Krishnan in which they signed as Attestors. Thus, it has to be held that the existence of Ex.B6 has been proved by the 2nd defendant by examining D.W.2 and D.W.3. 15. It is vehemently contended by the learned counsel for the appellant that there are suspicious circumstances surrounding the will, Ex.B6, which were discorded by the trial Court. One of the suspicious circumstances, according to the learned counsel for the appellant, is that the word “TAMIL” has not been mentioned in the Will under Ex.B6. At the risk of repetition, the recitals in Ex.B6 are once again re-produced here under: 16. One of the suspicious circumstances, according to the learned counsel for the appellant, is that the word “TAMIL” has not been mentioned in the Will under Ex.B6. At the risk of repetition, the recitals in Ex.B6 are once again re-produced here under: 16. This Court is of the considered view that the word “TAMIL” has not been purportedly omitted rather it would have been a typographical mistake. This could be inferred from the subsequent recitals contained in the Will which read as follows: 17. Therefore, the subsequent recitals in Ex.B6-will would demolish the argument advanced by the learned counsel for the appellant. Even otherwise, in the Will under Ex.B6, the testator had referred to another Will executed on 06.09.2001 in favour of the plaintiff Gopu and another son Shanmugam. Therefore, it is abundantly clear that the testator had intended to settle the suit property in favour of Krishnan, husband of the 2nd defendant. The Will was also registered as document No.66 of 2001 on the file of Sub- Registrar, Kundrathur. Such a registered Will partakes the character of a valid Will and it also come into force after the death of the beneficiary namely Krishnan. On going through the entire recitals contained in the Will, this Court is of the view that there is no attendant suspicious circumstances surrounding the Will. The recitals in the Will have to be read as a whole and not in isolation by taking advantage of omission of a word “,y;iy”. On reading the Will under Ex.B6, this Court is wholly satisfied that it was validly executed in favour of the husband of the 2nd defendant and upon the death of husband of the 2nd defendant, the defendants 2 to 5 are in possession and enjoyment of the suit property. 18. In the plaint, the plaintiff had stated that his father Balu Naicker died intestate but this was disproved by Ex.B6-Will as also the Will dated 12.09.2001 in favour of the plaintiff and his brother Shanmugam. In all fairness, the plaintiff ought to have disclosed about the existence of two Wills referred to above, but he omitted to refer to the same. Further, the plaintiff had already filed the suit in O.S. No. 688 of 2005 in which Krishnan, the husband of the 2nd defendant was arrayed as 3rd defendant. In all fairness, the plaintiff ought to have disclosed about the existence of two Wills referred to above, but he omitted to refer to the same. Further, the plaintiff had already filed the suit in O.S. No. 688 of 2005 in which Krishnan, the husband of the 2nd defendant was arrayed as 3rd defendant. The said suit was filed for the very same property but for the relief of declaration and consequential permanent injunction. In that suit, the plaintiff had gone on record by stating that he is out of possession and that the possession of the defendants in that suit is illegal. On the other hand, in the present suit, the plaintiff had come forward with a plea that he is joint possession of the suit property along with the 1st defendant and valued the suit under Section 37 (2) of the Tamil Nadu Court Fee and Suit Valuation Act. The trial Court after pointing out the short comings in the pleadings of the plaintiff, had correctly dismissed the suit filed by the plaintiff. On the whole, this Court does not find any illegality or infirmity in the judgment and decree passed by the trial Court. Thus, the points for determination framed in this appeal are answered against the plaintiff appellant and in favour of the respondents. 19. Accordingly, the judgment and decree dated 30.06.2011 passed in O.S.No.62 of 2008 on the file of the Additional District Judge, Fast Track Court No.1, Poonamallee stands confirmed. Consequently, the Appeal Suit fails and it is dismissed. The connected Miscellaneous Petition is closed. No Costs.