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2022 DIGILAW 2672 (MAD)

K. Sadhasivam v. N. Ramani

2022-08-12

R.N.MANJULA

body2022
JUDGMENT (Prayer in A.S.No.499 of 2017:- Appeal Suit is filed under Section 96 r/w Order XLI Rule 1 of C.P.C., to set aside the judgment and decree dated 22.03.2017 passed in O.S.No.142 of 2013 on the file of the III Additional District Judge, Salem. In A.S.No.221 of 2017:- Appeal Suit is filed under Section 96 r/w Order XLI Rule 1 of C.P.C., to set aside the judgment and decree dated 22.03.2017 passed in O.S.No.142 of 2013 on the file of the III Additional District Judge, Salem, so far as it relates to granting a preliminary decree for partition in favour of the plaintiff in respect of Item Nos. 1 to 3 of the 'A' schedule suit properties.) Common Judgment: 1. A.S.No.499 of 2017 has been preferred challenging the judgment of the learned III Additional District Judge, Salem dated 22.03.2017 made in O.S.No.142 of 2013. 2. A.S.No.221 of 2017 has been preferred challenging the judgment of the learned III Additional District Judge, Salem dated 22.03.2017 made in O.S.No.142 of 2013, so far as it relates to granting a preliminary decree for partition in favour of the plaintiff in respect of Item Nos. 1 to 3 of the 'A' schedule suit properties. 3. The shorts facts of the case are as under:- The appellant in A.S.No.499 of 2017 is the second defendant in the suit and the defendants 4 to 6 are the appellants in A.S.No.221 of 2017. The suit has been filed by the first respondent/Ramani for partition and separate possession. The plaintiff, 2nd and 3rd defendants are the daughters of the deceased first defendant/Kandasamy. Kandasamy had a son, by name Kanikachalam and he also died. The defendants 4 to 6 are the legal heirs of late Kanikachalam. The suit items 1 to 3 of 'A' schedule properties originally belong to plaintiff's mother Chellammal by virtue of sale deeds dated 07.02.1965, 07.09.1978 and 17.07.1981. The fourth item of the suit properties was purchased by Chellammal on 27.08.1973 in the name of her son Kanikachalam. Chellammal was in enjoyment of all the four items in the suit 'A' schedule properties and she later executed a Will on 18.04.1991 in favour of her son, but later revoked the same on 22.05.2006. Kanikachalam predeceased Chellammal on 31.07.2003 and Chellammal also died on 21.07.2007. In 'B' schedule property, Chellammal was conducting a grocery shop while she was alive. Chellammal was in enjoyment of all the four items in the suit 'A' schedule properties and she later executed a Will on 18.04.1991 in favour of her son, but later revoked the same on 22.05.2006. Kanikachalam predeceased Chellammal on 31.07.2003 and Chellammal also died on 21.07.2007. In 'B' schedule property, Chellammal was conducting a grocery shop while she was alive. After her demise, the shop was run by her children who are the plaintiff and defendants 2 and 3. Subsequent to the death of Chellammal, the father of the plaintiff, namely the first defendant has filed the suit in O.S.No.223 of 2008 on the file of the Fast Track Court - II, Salem, but later, it was dismissed for default. Since the defendants did not come forward to partition the properties, the plaintiff who is the co-sharer, has filed this suit for partition. 4. The second defendant resisted the suit by stating that the plaintiff got married in the year 1976 and at that time itself, she had orally released her rights, if any, in the suit properties. It is not correct to state that Chellammal died without executing any documents. The Provision Stores in 'B' schedule property, run in the name of “Chellam Provision Stores”, belongs to the second defendant. The plaintiff has no right over the same. The first defendant has filed the suit for partition in respect of item Nos.1 to 3 and the same was dismissed. Even though the deceased/Chellammal has executed an unregistered Will in respect of 'A' schedule property in favour of the second defendant, the other parties objected to the same and filed the suit unnecessarily and hence the plaintiff is not entitled to the relief as prayed for. 5. The defendants 4 to 6 have stated that the 4th item of the suit property was purchased in the name of Kanikachalam and he was only conducting the Grocery shop. After the demise of Kanikachalam, the fourth defendant, who is his wife, was conducting the Provision Store. The deceased/Chellammal has executed a Will dated 07.07.2007 and the plaintiff has got married many years ago and has no title or interest in the suit properties. 6. On the basis of the above pleadings, the learned trial Judge has framed the following five issues. 1. Whether the plaintiff is entitled to 1/4th share over the suit properties? 2. The deceased/Chellammal has executed a Will dated 07.07.2007 and the plaintiff has got married many years ago and has no title or interest in the suit properties. 6. On the basis of the above pleadings, the learned trial Judge has framed the following five issues. 1. Whether the plaintiff is entitled to 1/4th share over the suit properties? 2. Whether the plaintiff is entitled to permanent injunction? 3. Whether the plaintiff is entitled to preliminary decree as prayed for? And 4. To what other relief the plaintiff is entitled to? Additional Issues:- Whether the Will dated 07.07.2007 is genuine and reliable? 7. During the course of the trial, one witness was examined on the side of the plaintiff as PW1 and Exhibits Ex.A1 to Ex.A9 were marked. On the side of the defendants, two witnesses were examined as DW1 and DW2 and Exhibits Ex.D1 to Ex.D10 were marked. 8. At the conclusion of the trial and on considering the evidence available on record, the learned trial Judge had passed a preliminary decree in respect of 1/4th share of the plaintiff in suit Items 1 to 3 of the 'A' schedule property and the suit was dismissed as against Item No.4 of the suit 'A' schedule and also in respect of 'B' schedule properties. Aggrieved by the same, the defendants 4 to 6 have filed A.S.No.221 of 2017 and the second defendant has filed A.S.No.499 of 2017. 9. The learned counsel for the appellant in A.S.No.499 of 2017 submitted that the learned trial Judge has omitted to take note of the earlier suit filed in O.S.No.223 of 2008 and it was dismissed for default. The Will Ex.B.10 dated 07.07.2007 was proved through DW2 and the first respondent/plaintiff had never been in possession and enjoyment of the suit properties. The appellant has proved the execution of the Will in his favour on 07.07.2007 (Ex.B.10) but however the learned trial Judge has not considered the same. Hence, the judgment and decree of the learned trial Judge has to be set aside. 10. The appellant has proved the execution of the Will in his favour on 07.07.2007 (Ex.B.10) but however the learned trial Judge has not considered the same. Hence, the judgment and decree of the learned trial Judge has to be set aside. 10. The learned counsel for the appellants in A.S.No.221 of 2017 has submitted that even in Item Nos.1 to 3 of "A" schedule property, the first respondent/plaintiff does not have any right, as she is not a member of the joint family; the first respondent/plaintiff has got married in the year 1976 and has relinquished her rights in the suit properties; the Will executed by the deceased/Chellammal on 07.07.2007 ought to have been taken into consideration; hence the judgment and decree passed by the trial Court has to be revised. 11. Points for consideration:- Whether the preliminary decree passed by the learned trial Judge in respect of 1/4th share of the plaintiff in Items 1 to 3 of suit 'A' schedule is fair and proper? 12. The first respondent is the daughter of the deceased P.Kandasamy and his wife Chellammal. The second defendant is the son of Chellammal and the third defendant is the one more daughter of first defendant/Kandasamy and Chellammal. Defendants 4 to 6 are wife and children of the deceased Kanikachalam, who is the another son of the first defendant and Chellammal. 13. The above relationship between the parties is not in dispute. To put it simply, the deceased first defendant/Kandasamy and his wife Chellammal had four children, namely two daughters and two sons. The first respondent/plaintiff and the third defendant are the daughters, and the second defendant and the deceased Kanikachalam are his sons. The items 1 to 3 of suit 'A' schedule property were purchased in the name of the mother of first respondent/plaintiff/Chellammal by virtue of three registered sale deeds dated 07.02.1965, 07.09.1978, 17.07.1981. The said fact is not in dispute. The fourth item of the suit 'A' schedule property stands in the name of the deceased Kanikachalam who is the husband and father of the defendants 4 to 6, who are the appellants in A.S.No.221 of 2017. 14. The contention of the first respondent/plaintiff in the suit was that even the fourth item was purchased by Chellammal in the name of Kanikachalam. 14. The contention of the first respondent/plaintiff in the suit was that even the fourth item was purchased by Chellammal in the name of Kanikachalam. According to the first respondent/plaintiff, the fourth item of suit 'A' schedule property was also purchased with the money given by Chellammal, and Kanikachalam is only a name lender. However, the trial Court has chosen to grant a preliminary decree in respect of 1/4th share of the first respondent/plaintiff only in respect of items 1 to 3 of suit 'A' schedule properties. The suit was dismissed in respect of item 4 of the suit 'A' schedule property and also suit 'B' schedule property. The first respondent/plaintiff has not filed any appeal challenging the same and so there need not be any dispute in respect of item No.4, which has been purchased in the name of Kanikachalam. 15. Even though it is claimed by the first respondent/plaintiff that the item 4 of suit 'A' schedule property was purchased in the name of Kanikachalam while he was a student, the sale deed did not show that Kanikachalm was a minor at the time of the purchase. Apart from item No.4 some other properties were also purchased in the name of Kanikachalam in the year 1976. Item No.4 was purchased in the year 1973. The other sale deed Ex.D7 shows that Kanikachalam had purchased the property in his own name with his own money and he was not a student at the time of those sale deeds. 16. In fact, suit 'B' schedule grocery shop was also conducted by Kanikachalm. The property in which the grocery shop was run, was also purchased by Kanikachalam by virtue of Ex.D7 sale deed. The learned trial Judge has rightly appreciated the evidence on record and arrived at a conclusion that the fourth item of 'A' schedule property was the self-acquired property of Kanikachalm and in which, the first respondent/plaintiff has got no right or share. Even though the second defendant has claimed that Chellammal has executed a Will in his favour in respect of the suit properties on 07.07.2007, the said Will was not proved. 17. From the discussion of the learned trial Judge about the Will on the basis of the evidence available before the Court it would only show that the alleged Will dated 07.07.2007 is a created one. 17. From the discussion of the learned trial Judge about the Will on the basis of the evidence available before the Court it would only show that the alleged Will dated 07.07.2007 is a created one. Further, at the time when the alleged Will was said to have been executed by Chellammal she was admitted in the hospital, as she was not well. In fact, the Will executed by Chellammal in respect of items 1 to 3 of 'A' schedule property on 18.04.1991 in favour of her sons, was subsequently cancelled on 22.05.2006. The said documents have been produced as Ex.A5 and Ex.A6. The above facts were not denied by the second defendant. In fact, the deed for cancellation of the Will i.e., Ex.A6, was executed namely by Chellammal in which she has specifically stated that she opted to cancel the Will, since her sons were not taking care of her. 18. Under such circumstances, Chellammal would not have executed another Will in the next year itself in favour of the second defendant. The learned trial Judge has examined the admitted signatures of Chellammal in Ex.A6 and the Will dated 07.07.2007 produced by the second defendant. The Court has given a categorical finding that there is a vast difference in the signatures of Chellammal in Ex.B.10. Since the second defendant has failed to prove the genuineness of Ex.B.10 Will, he cannot claim any exclusive right in respect of items 1 to 3 of 'A' schedule property on the basis of the Will. So, it has to be construed that Chellammal is the owner of items 1 to 3 of 'A' schedule property and she had died interstate leaving behind her one son and two daughters and the legal heirs of her pre-deceased Son Kanikachalam alone as her legal heirs. 19. In such circumstances, both the daughters and the sons of Kanikachalm will get equal share in suit items 1 to 3 of 'A' schedule property. In accordance thereof and the learned trial Judge has allotted ¼th share in respect of suit items 1 to 3 in 'A' schedule property. Since 'B' schedule property was self-acquired property of the deceased Kanikachalam and the Provision Store was being run by the deceased Kanikachalam and thereafter by his legal heirs, the learned trial Judge has rightly dismissed the suit as against 'B' schedule property as well. Since 'B' schedule property was self-acquired property of the deceased Kanikachalam and the Provision Store was being run by the deceased Kanikachalam and thereafter by his legal heirs, the learned trial Judge has rightly dismissed the suit as against 'B' schedule property as well. Since the first respondent/plaintiff did not challenge the preliminary decree passed in her favour in respect of 1/4th share in items 1 to 3 of suit 'A' schedule and the second defendant also failed to prove the Ex.B10 Will dated 07.07.2007, there is no scope for interfering with the preliminary decree passed by the learned trial Judge. Since the origin and entitlement of the parties in respect of the suit properties have been rightly analysed and the share of the first respondent/plaintiff is rightly fixed as 1/4th in respect of items 1 to 3 in the suit 'A' schedule property, I find no reason for any interference with the trial Court's judgment. 20. Accordingly, both the Appeal Suits are dismissed and the judgment of the learned III Additional District Judge, Salem dated 22.03.2017 passed in O.S.No.142 of 2013 is hereby confirmed. No costs. Consequently connected miscellaneous petition is also closed.