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2022 DIGILAW 125 (MAD)

A. Tamilselvi v. Chinnammal

2022-01-12

PARESH UPADHYAY, S.SATHI KUMAR SUKUMARA KURUP

body2022
JUDGMENT : S. Sathi Kumar Sukumara Kurup, J. Prayer: Appeal filed under Section 96 r/w. Order XLI Rule 1 of Civil Procedure Code, praying to set aside the judgment and decree dated 17.09.2019 made in O.S.No.65 of 2015 on the file of I Additional District Judge, Coimbatore. 1. This is an appeal filed by the plaintiffs against the judgment in O.S.No.65 of 2015 on the file of the learned First Additional District Judge, Coimbatore. 2. Heard Mr.S.B.Viswanathan, learned Counsel for the appellants, Ms.A.Dhanwanthi, learned Counsel for the first respondent, Mr.K.Govi Ganesan, learned Counsel for the second respondent and Ms.R.Rajashama Gayathri, learned Counsel for the Respondents 3, 5 and 6. 3. Learned Counsel for the appellants submitted that the suit was filed by the plaintiffs/appellants for partition. The learned Counsels for the appellants assailed the judgment of the learned First Additional District Judge, Coimbatore, stating that the trial Court committed error on the face of record in respect of settlement deed under Ex.A-4 given to Mrs.Lakshmiammal by her husband Late.Chinnia Gounder in lieu of maintenance, as a Will. The trial Court had drawn adverse inference against the appellants for non-production of Death Certificate of Late Mrs.Lakshmiammal especially when the defendants 3 to 6 had admitted the factum of the year of death of Late Mrs.Lakshmiammal in the year 1990. The findings of the learned trial Judge in paragraph 12 are based on the surmises and conjectures. The learned trial Judge committed a grave error by giving a finding that Mrs.Lakshmiammal had acquired only restricted estate by virtue of settlement deed dated 02.11.1962. It has misconceived that the case of the plaintiffs falls under Section 14(2) of the Hindu Succession Act whereas it actually comes within the purview of Section 14(1) of the Hindu Succession Act. The learned trial Judge had committed a grave error by failing to differentiate between Section 14(2) and Section 14(1) of the Hindu Succession Act. When the properties given in lieu of maintenance which is a pre-existing right and a female is in possession of the same, then in such cases, restricted rights ripened into an absolute right. It also failed to consider that Section 14(2) of the Hindu Succession Act does not contain restrictions imposed under explanation appended to Section 14(1) of the Act. In other words, there is omission of words in lieu of maintenance under Section 14(2) of the Act. It also failed to consider that Section 14(2) of the Hindu Succession Act does not contain restrictions imposed under explanation appended to Section 14(1) of the Act. In other words, there is omission of words in lieu of maintenance under Section 14(2) of the Act. The trial Court failed to apply the principles contained in Section 21 of the Hindu Succession Act. The finding of the trial Court in paragraph 13 of the judgment wrongly applying various judgments cited on behalf of the defendants and erroneously held that the settlement deed dated 02.12.1962 under Ex.A-4 in lieu of maintenance should be construed only as a gift deed and holing Late Mrs.Lakshmiammal had not become absolute owner of the property covered under Item No.1 of the suit properties. The trial Court committed error in shifting the burden of proof on the plaintiffs with regard to the genuineness of execution of the alleged Will. The learned trial Judge failed to consider that the profounder of the alleged Will dated 10.11.1982 under Ex.B-25 had not dispelled the existence of suspicious circumstances by adducing legally acceptable evidence. The learned trial Judge failed to consider the recitals contained in the partition deed dated 27.05.2009 under Ex.A-11 entered into between the defendants 1, 2, 3 and 4 in which, there was conspicuous absence of mentioning the alleged Will dated 10.11.1982 under Ex.B-25. The learned Trial Judge had committed an error in holding that the plaintiffs have not pleaded with regard to the question of sound and health condition of the alleged Testator of the alleged Will dated 10.11.1982 under Ex.B-25 totally overlooking the reply statement filed by the plaintiffs. The findings of the learned trial Judge in paragraphs 18 and 20 are unsustainable and not based on evidence and was based on conjectures and surmises. The findings of the learned trial Judge in paragraph 25 of the judgment are incorrect and perverse. The findings of the learned trial Judge in paragraph 21 are contrary to the findings given in paragraphs 18 to 20. 4. Point for determination: “Whether the trial Court can be said to have committed any error in dismissing the suit for partition, as prayed for by the plaintiffs/appellants?” 5. Perused the judgment of the learned trial Judge and evidence of the witnesses of P.W-1 and D.W-1 to D.W-5 and Ex.A-1 to A-18 and Exs.B-1 to B-38. 4. Point for determination: “Whether the trial Court can be said to have committed any error in dismissing the suit for partition, as prayed for by the plaintiffs/appellants?” 5. Perused the judgment of the learned trial Judge and evidence of the witnesses of P.W-1 and D.W-1 to D.W-5 and Ex.A-1 to A-18 and Exs.B-1 to B-38. On perusal of the judgment of the learned First Additional District Judge, Coimbatore and the evidence of P.W-1, the suit is for the relief of partition by grand-children of Chinnia Gounder through his first wife Late Mrs.Lakshmiammal. Mrs.Lakshmiammal’s daughter Poovathal died in 2000. The plaintiffs are the children of Poovathal. The third defendant Kaliappan is also the son of Chinnia Gounder through his first wife Mrs.Lakshmiammal. On perusal of the judgment of the learned trial Judge, it is found that based on the pleadings of the respective parties, the learned Judge had framed the following issues: (i) Whether the first wife of Chinnia Gounder Mrs.Lakshmiammal had absolute right in Item No.1 of the suit properties? (ii) Whether the alleged Will dated 10.11.1992 of Late Chinnia Gounder is true and valid? (iii) Whether the plaintiffs are entitled to half share in the first schedule of the suit properties? (iv) Whether the plaintiffs are entitled to relief of partition in Items 2 and 3 of the schedule of suit properties? If so, to what share? (v) To what other reliefs the plaintiffs are entitled to? 6. The first plaintiff Tamil Selvi had examined herself as P.W-1. In her cross-examination, she had admitted that the third defendant Kaliappan had constructed a house and living there. Three years prior to filing of the suit, the third defendant had built a new house, which had been admitted by her and she had stated that she does not know about the enjoyment of the properties for the past thirty years. P.W-1 had admitted the fact that Mrs.Lakshmiammal had died after the death of Chinnia Gounder. The mother of the plaintiffs’ Poovathal died in the year 2000 was also admitted by her. She had admitted that she came to know that there had been a partition after applying for Encumbrance Certificate and that Encumbrance Certificate had not been marked on her side. 7. The mother of the plaintiffs’ Poovathal died in the year 2000 was also admitted by her. She had admitted that she came to know that there had been a partition after applying for Encumbrance Certificate and that Encumbrance Certificate had not been marked on her side. 7. The learned trial Judge had discussed elaborately the evidence of plaintiffs and defendants regarding the second issue, whether the alleged Will dated 10.11.1982 of Late Chinnia Gounder is true and valid? Therefore, the entire case rest on that issue. On perusal of the evidence in cross-examination of P.W-1, it is found that either her mother Poovathal or her maternal grand-mother Mrs.Lakshmiammal had not questioned the Will executed by Late Chinnia Gounder in the year 1982. Further, it was a registered Will and the attestor to the Will on the date of trial was not alive. Therefore, the son of the attestor was examined as D.W-2. Based on the Will, the first defendant, who is the second wife of Chinnia Gounder, had limited rights through her life-time and defendants 2 and 3 had absolute right after her life. Therefore, the defendants 2 and 3 are the beneficiaries of the Will and hence, rightly the learned trial Judge had stated that the burden to prove the Will rest on the beneficiaries of the Will. Therefore, Ex.P-25 the Will had to be proved by them. Late Chinnia Gounder had purchased the properties in Item Nos.1 to 3 through sale deed under Ex.B-22 to Ex.B-24. The same had been admitted by both parties. As per Ex.A-4, it was executed in favour of Mrs.Lakshmiammal -first wife of Chinnia Gounder, after her death automatically it would vest with the said Chinnia Gounder. Chinnia Gounder had executed the Will dated 10.11.1982. As per Ex.B-25, it was registered as Doc. No.43/82 for which the Registration Certificate had been marked as B-33. The left thumb impression of the author of the Will -Chinnia Gounder had been recorded in the Register which was marked as Ex.B-34. In the Register, it is registered as Sl.No.43/3. The attestor of the Will is identified as Ramana Gounder. The signature of the said attestor is under Ex.B-25. The Death Certificate of Ramana Gounder had also been marked as Ex.B-18. In the Register, it is registered as Sl.No.43/3. The attestor of the Will is identified as Ramana Gounder. The signature of the said attestor is under Ex.B-25. The Death Certificate of Ramana Gounder had also been marked as Ex.B-18. Therefore, as per Section 68 of the Indian Evidence Act, the signature of Ramana Gounder had to be proved only through his son Subramanian who was examined as D.W-2. The legal heir certificate of Subramanian was marked as Ex.B-14 to B-16. The plaintiffs had not disputed the fact of death of Ramana Gounder and the fact that D.W-2 Subramanian is the son of Ramana Gounder or the documents under Ex.B-4, B-25, B-19, B-14 to B-16. Further, the learned trial Judge had relied on the rulings of this Court in the case of R.Vasanthi vs. Janaki Devi and other reported in 1999 (III) CTC 378 wherein it has been held as under: “Evidence Act, 1982, Section 47, 59, 69 - Will –Proof - Attesting witnesses died -Method of proving of Will - If none of the attesting witnesses are available, witness identifying signature of attestor may be examined under Section 69 - Evidence of identifying witness has to be taken as valid execution and attestation.” 8. In yet another decision of this Court in the case of Selvasubramaniam vs. Subbu Rathinam reported in 2015 (4) MLJ 452 wherein it had been held as under: “The Will is a registered document -The attestors are not available but persons have identified signatures of one of attestors and the scribe - There is no pleading that Mrs.’K’ being 80 years old would not have been in sound state of mind - Will is found to be proved.”” 9. Accordingly, on the basis of the entire evidence available before the Court, the learned trial Judge had arrived at a conclusion that the defendants, who have the burden to prove the Will, had accordingly proved the Will. When the Will had been proved and based on the Will, the defendants had partitioned among themselves, the claim of the plaintiffs had been defeated and nothing survives for further consideration. 10. Therefore, the issue No.(ii) framed by the learned trial Judge had been answered in favour of the defendants. When the Will had been proved and based on the Will, the defendants had partitioned among themselves, the claim of the plaintiffs had been defeated and nothing survives for further consideration. 10. Therefore, the issue No.(ii) framed by the learned trial Judge had been answered in favour of the defendants. Further, there is a clear admission by P.W-1 in her cross-examination that she had obtained Encumbrance Certificate and from the Encumbrance Certificate, she came to know about the partition and the Will. Therefore, it was an exercise in futility to have filed the suit for partition. She had clearly admitted that she is the grand-daughter of Chinnia Gounder through his first wife Mrs.Lakshmiammal and her mother Poovathal died in the year 2000. Poovathal is presumed to have knowledge of all these facts. That is why, during her life time, she had not questioned the Will or had not sought partition. The first wife of Chinnia Gounder, Mrs.Lakshmiammal had also not challenged the execution of the Will by Chinnia Gounder during her life time. She had also not challenged the cancellation of the alleged settlement deed in her favour by her husband during her life time. Therefore, the mother of plaintiffs -Poovathal could not question it. It is because those who are married after 1989 alone can agitate it. Those who are married before 1989 cannot agitate it. In this case, the admission of the evidence of first plaintiff in the cross-examination is against her claim. Therefore, based on the evidence available before the learned trial Judge, the learned trial Judge had answered the issue No. (ii) in favour of the defendants which is not based on the evidence of plaintiffs and it is based on the evidence of defendants 1 and 2 themselves. Under those circumstances, the contention of the learned Counsel for the appellants that the judgment of the learned trial Judge is based on surmises and conjectures cannot at all be accepted. Further, the question of limitation also is attracted as what had not been agitated either by Mrs.Lakshmiammal or by Poovathal, the daughter of Mrs.Lakshmiammal, cannot now be agitated by the plaintiffs. It is an exercise in futility. P.W-1 had clearly admitted that she had sought money in the legal notice sent by her in lieu of partition among defendants but that legal notice was suppressed by her, had been admitted in cross-examination. It is an exercise in futility. P.W-1 had clearly admitted that she had sought money in the legal notice sent by her in lieu of partition among defendants but that legal notice was suppressed by her, had been admitted in cross-examination. In those circumstances, if the appeal is admitted, it would amount to harassment of the defendants/respondents who had been enjoying the property. Therefore, there is no merit in admitting the appeal. 11. As per the decision of the Hon’ble Supreme Court of India, when the learned trial Judge had appreciated the evidence on the basis of the provisions of Indian Evidence Act and arrive at a just conclusion, the Appellate Court shall not interfere in the findings of the learned trial Judge, unless it is perverse. This is because the trial Judge had the benefit of observing the demeanour of the witnesses which is not available to the appellate Judge. Therefore, the findings of the learned trial Judge if it is based on proper appreciation of evidence as per Indian Evidence Act, the same will not be reversed by the Appellate Court. Here, the learned trial Judge had properly appreciated the evidence available before him as per the Indian Evidence Act. Under those circumstances, it is not considered as perverse. The argument of the learned Counsel for the appellants/plaintiffs that the judgment of the learned trial Judge is perverse is only because the judgment is not in their favour. Just because the judgment is not in their favour, they considered it as perverse. Hence, the said argument is rejected. The judgment of the learned trial Judge is found to be not on surmises and conjectures but based on strong evidence in favour of the defendants. Under those circumstances, the claim of the appellants/plaintiffs is not at all acceptable based on law of limitation. A Will that is alleged to have been executed by maternal grandfather in the year 1982 which was registered and based on which the defendants had been enjoying the property and full knowledge of the surviving children and grand-children of Chinnia Gounder. In those circumstances, the suit for partition by the grand-children of Chinnia Gounder through his first wife through their daughter Poovathal is found to be misconceived. Therefore, the claim is rejected as not maintainable. 12. The point for determination is answered against the appellants/plaintiffs and in favour of the respondents/defendants. In those circumstances, the suit for partition by the grand-children of Chinnia Gounder through his first wife through their daughter Poovathal is found to be misconceived. Therefore, the claim is rejected as not maintainable. 12. The point for determination is answered against the appellants/plaintiffs and in favour of the respondents/defendants. The trial Court cannot be said to have committed any error in dismissing the suit for partition, as prayed for by the plaintiffs/appellants. In the result, the Appeal Suit is dismissed. The judgment and decree dated 17.09.2019 made in O.S.No.65 of 2015 passed by the First Additional District Judge, Coimbatore, is confirmed. No costs. Consequently, the Civil Miscellaneous Petition is closed.