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2022 DIGILAW 3511 (MAD)

Vanajatchiammal (died) v. Muniyendrian

2022-09-27

P.T.ASHA

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code to set aside the Judgment and decree dated 02.01.2020 passed by the learned Subordinate Judge, Gudiyattam, Vellore District in A.S.No.4 of 2017 reversing the Judgment and Decree dated 21.03.2017 passed by the learned District Munsif, Gudiyattam, in O.S.No.99 of 2009.) 1. The defendant is the appellant before this Court challenging the Judgment and Decree of the Subordinate Judge, Gudiyattam, in A.S.No.4 of 2017, in and by which, the learned Judge has reversed the Judgment and Decree of the District Munsif, Gudiyattam in O.S.No.99 of 2009. It is necessary to elude to the facts of the case preceding the filing of this second appeal in order to appreciate the objection to the Judgment and Decree under appeal. While so doing, the parties are referred to in the same array as before the Trial Court. 2. The plaintiff had filed O.S.No.99 of 2009 on the file of the District Munsif's Court, Gudiyattam, to declare his title to the property and for a permanent injunction restraining the defendant, her men, servants, agents, etc., from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that the suit property and other properties belonged to his father Naduppivadan @ Chinnappa Naidu (hereinafter, referred to 'Chinnappa Naidu'). The properties had fallen to his share under an oral partition. On 28.12.1978, the Chinnappa Naidu executed a Will bequeathing the suit property to the plaintiff. In the year 1980, the said Chinnappa Naidu died and the Will came into force. The plaintiff would submit that he has his house abutting on the eastern side of the suit property and the suit property was used as front courtyard by the plaintiff. The suit property and the plaintiff's property form an inseparable unit. While so, the defendant, who is an utter stranger to the property started to claim title over the same. In the first week of February, 2009, she had attempted to unlawfully take the possession. In view of the above, the plaintiff was constrained to issue a legal notice dated 09.02.2009, but however, there was no response to the same. Therefore, left with no other alternative, the plaintiff has come forward with the suit in question. 3. In the first week of February, 2009, she had attempted to unlawfully take the possession. In view of the above, the plaintiff was constrained to issue a legal notice dated 09.02.2009, but however, there was no response to the same. Therefore, left with no other alternative, the plaintiff has come forward with the suit in question. 3. The suit property has been described as a vacant site in Bakkalapalli Village within the following boundaries:- On the West by Ambur Road On the East by vacant site of plaintiff North by defendant's house South by Elappalli Govindan's house 4. The defendant had filed a written statement inter-alia denying the contentions raised by the plaintiff and contending that the Will executed by the plaintiff's father is not a valid Will, since he had no right to the property. Further, the defendant would contend that the property belonged to the sons of Munusamy Naidu, namely Kuppusamy Naidu, Duraisamy Naidu, Raji Naidu. They had sold the suit property to their sister Thulasiammal under a registered sale deed dated 12.11.1943. Thereafter, the said Thulasiammal had got the revenue records mutated in her name and had been enjoying the same from the date of purchase. Thereafter, on 28.02.1986, the said Thulasiammal has sold the property to the defendant. The defendant would further contend that although they had a sale deed in respect of the suit property, however, it is also to be taken note that the defendant and his predecessors in title have been in possession and enjoyment of the suit property for over several decades and therefore, they had also prescribed title to the property through adverse possession. 5. The Trial Court had framed the following issues:- The plaintiff had examined himself as P.W.1 and one T.S.Murali as P.W.2 and marked Ex.A1 to A8. On the side of the defendant, the defendant had examined herself as D.W.1 and one P.Ramanandhini, Block Additional Tahsildar as D.W.2. They had marked Ex.B1 to B5. That apart, Court documents has been marked as Ex.C1 to C4. 6. The learned District Munsif on an elaborate consideration of evidence on record had proceeded to dismiss the suit. Aggrieved by the same, the plaintiff had filed A.S.No.4 of 2017 on the file of Subordinate Court, Gudiyattam. The Trial Court however proceeded to reverse the Judgment and Decree of the Trial Court. Aggrieved by the same, the defendant is before this Court. 7. Aggrieved by the same, the plaintiff had filed A.S.No.4 of 2017 on the file of Subordinate Court, Gudiyattam. The Trial Court however proceeded to reverse the Judgment and Decree of the Trial Court. Aggrieved by the same, the defendant is before this Court. 7. The above Second Appeal has been admitted on the following substantial questions of law :- "(1) Whether the presumption under Section 90 of the Indian Evidence Act is applicable to Ex.A2, an unregistered Will dated 28.12.1978 ? (2) Whether the execution of the Will is required to be proved under Section 68 and 69 of the Indian Evidence Act by the Plaintiff ? (3) Whether there is any perversity or illegality in the judgment and decree passed by the Trial Court ?" 8. Mr.P.Ravi Shankar Rao, learned counsel appearing for the defendants would submit that the plaintiff has come to Court with a contention that the property belonged to his father Chinnappa Naidu, who had executed the Will, Ex.A2, under which, the property had been bequeathed to him. He would argue that the plaintiff has not given the Survey Number of the property and after the filing of the suit, two amendments had taken place. The first of which is the insertion of paragraph (2)(a), which would read as follows :- “2(a) The plaintiff, submits that one Manickam and Munirathinam are his younger brothers. They died intestate long back behing the plaintiff's father alone as their legal heir. Subsequently, the plaintiffs father died leaving behind only the plaintiff as his legal heir. As such the schedule mentioned property devolves upon the plaintiff. Hence in case the will dated 28.12.1978 is not proved, even then the plaintiff is entitled to get title of the schedule mentioned property as per succession.” 9. In the second amendment, in the schedule of property, the plaintiff had introduced the word Gramanathan. However, the amendments did not mention the survey number. Further, it is the specific case of the plaintiff that the plaintiff's house property abuts the eastern side of the schedule mentioned property. 10. Further, he would submit that under Ex.B2, the entire property had been sold to Thulasiammal and the plaintiff's father has signed the deed as a witness. This would clearly prove that the properties did not belong to the plaintiff's father. The plaintiff has not proved the Will in the manner known to law. 10. Further, he would submit that under Ex.B2, the entire property had been sold to Thulasiammal and the plaintiff's father has signed the deed as a witness. This would clearly prove that the properties did not belong to the plaintiff's father. The plaintiff has not proved the Will in the manner known to law. The plaintiff has come to Court with a specific case that he is entitled to the property under the Will, Ex.A2. Having come to the Court with a definite case, it is the bounden duty of the plaintiff to prove the same. 11. The learned counsel would further submit that the plaintiff has not given any reason for proceeding under Section 90 of the Indian Evidence Act and the Lower Appellate Court has failed to appreciate the fact that the Will has to mandatorily comply with the provisions of Section 63(c) of the Indian Succession Act and Section 68 of Indian Evidence Act and there cannot be waiver of this mandatory provision. The Lower Appellate Court has exceeded its jurisdiction by stating that since the Will is over thirty years old and an ancient document, therefore, its contents are presumed to be true. He would rely upon the judgment reported in 2022 (3) SCC 209 in the case of Murthy & Ors. Vs. C.Saradambal & Ors., where the Hon'ble Supreme Court dealt with the role of an Appellate Court while reversing the judgment and decree of the Trial Court. 12. He would further submit that the suit is bad for non-joinder for necessary party in as much as the plaintiff has not chosen to implead his siblings, especially when he claims an exclusive right on the basis of a Will. He also submitted that in view of the fact that the Will had not been proved and the plaintiff has not produced documents to show his continued possession of the property from the year 1978 onwards, the Lower Appellate Court has committed a grave error in declaring the plaintiff's title to the property and granting an injunction. In fact, the documents, which have been filed on the side of the plaintiff to show possession, which are Ex.A6 to A8 are post the filing of the suit. 13. In fact, the documents, which have been filed on the side of the plaintiff to show possession, which are Ex.A6 to A8 are post the filing of the suit. 13. Further, he would submit that being the final Court of fact, the Lower Appellate Court ought to have considered the evidence afresh and given reasons for differing with the view taken by the Trial Court. He would argue that the plaintiff is aware of the sale in favour of Thulasiammal originally and thereafter, the defendants has not taken any steps whatsoever to have those sale deeds, Ex.B1 and B2 set aside. 14. Per contra, Mr.K.A.Ravindran, learned counsel appearing on behalf of the plaintiff would submit that the defendant by taking the plea of adverse possession has in effect accepted the title of the plaintiff to the suit property. He would rely upon the admissions of the defendant in her cross examination, which reads as follows:- This would go a long way to show that the defendants have not been able to establish their plea of adverse possession. 15. Further, he would submit that the plaintiff has produced Ex.A6 to A8 to prove the possession of the property by the plaintiff. However, no such documents have been filed on the side of the defendant. He would also submit that the suit has to be necessarily decreed and the same has been so done by the Lower Appellate Court. 16. Heard the counsels on both sides and perused the materials available on record. Pending the appeal, the defendant has died and her legal representatives have been brought on record. 17. The plaintiff has come to the Court with a case that the property belongs to his father under an oral partition and that his father executed a Will in his favour on 28.12.1978, that from the date of the death of his father the plaintiff has been in exclusive possession and enjoyment of the property using it as front yard for his house. The plaintiff's property is situated to the east of the suit property. The defendant on the other hand would submit that the property never belonged to the plaintiff's father and that the properties were the joint family properties of Munusamy Naidu and his sons, Kuppusamy Naidu, Duraisamy Naidu and Raji Naidu. The plaintiff's property is situated to the east of the suit property. The defendant on the other hand would submit that the property never belonged to the plaintiff's father and that the properties were the joint family properties of Munusamy Naidu and his sons, Kuppusamy Naidu, Duraisamy Naidu and Raji Naidu. After the father's death, the said brothers had sold the property to their sister, Thulasiammal under a sale deed dated 12.11.1943. Thereafter, the said Thulasiammal has sold the property to the appellants herein nearly 43 years after her purchase. The defendant had taken out a categoric stand that the Will was not a valid one as the plaintiff's father did not have the authority to execute the Will as he did not have any right to the said property. A perusal of Ex.A2 Will indicates that the Testator has not described the properties that were bequeathed, but had stated that the bequest consists of all ancestral properties. The recitals of the Will would reads as follows:- 18. Even, according to the testator, the property is an ancestral property. Therefore, the contention of the plaintiff that the property was the exclusive property of his father appears to ring hollow. Further, the plaintiff rests his entire case upon Ex.A2, Will. The Will has to be proved in the manner known to law as per the provisions of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. A perusal of the judgment of the Trial Court regarding the same would clearly show that neither the attesting witness nor the scribe have been examined. Therefore, the finding of the Trial Court that the Will has not been proved in the manner known to law has to necessarily be upheld. The Appellate Court has held the Will to be valid only on the ground that the Will is over 30 years old and an ancient one. This presumption is not available in the case of Wills in respect of the provisions of Section 63(c) of the Succession Act and Section 68 of the Indian Evidence Act. 19. The next argument is that the plaintiff has not proved possession of the property, since the same continues to be in the possession of the defendant. This presumption is not available in the case of Wills in respect of the provisions of Section 63(c) of the Succession Act and Section 68 of the Indian Evidence Act. 19. The next argument is that the plaintiff has not proved possession of the property, since the same continues to be in the possession of the defendant. The plaintiff in support of his contention that he is in possession of the property has filed Ex.A6 to A8, which are all documents post the filing of the suit. Therefore, the Trial Court has rightly found against the plaintiff. The sale deed in favour of the defendant is executed way back in the year 1986 by Thulasiammal. That apart, she has purchased the property in the year 1953. The mutation has also taken place in her name and in the name of the defendant. The plaintiff has not been able to prove his possession and that of his predecessor in title. 20. In the circumstances, the substantial question of law Nos.2 and 3 have to be answered against the plaintiff. As regards the substantial question of law No.1, the plaintiff has not produced the original of the Will, but has only produced the xerox copy of the same. There is no explanation for the non-filing of the original Will. Section 90 of the Indian Evidence Act will not apply in the case of a Will. How a Will has to be proved is set out in Section 63(c) of the Indian Succession Act and Section 68 of Indian Evidence Act. Therefore, the substantial question of law No.1 is answered against the plaintiff. 21. In the result, the Second appeal is allowed and the Judgment and Decree of the Courts below is set aside. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.