Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 1488 (MAD)

Deivalakshmi v. Anitha

2023-03-30

V.BHAVANI SUBBAROYAN

body2023
JUDGMENT (Prayer:Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order in I.A.No.2 of 2019 in O.S.No.354 of 2014 dated 21.11.2019 on the file of the I Additional Sub Court, Erode.) 1. This Civil Revision Petition has been filed against the fair and decreetal order dated 21.11.2019 passed by the Learned I Additional Sub Judge, Erode in I.A.No.2 of 2019 in O.S.No.354 of 2014. 2. The brief facts of the case of the petitioners are as follows: i) The petitioners and 2ndrespondent herein are the defendants in the suit in O.S.No.354 of 2014. The suit was filed for partition and separate possession of the suit properties. The defendants filed written statement in the suit and thereafter, 1st respondent / plaintiff filed I.A.No.2 of 2019 to examine the Secretary of Nasiyanur Agricultural Co-operative Society and the Registrar of Births and Deaths, Erode, to mark certain documents through them. ii) It was stated in the application that the 1st and 2nd defendants are the sisters of the plaintiff''s father and the 3rd defendant is the sister of the plaintiff. The suit property is belonging to both plaintiff and defendants. They engaged in the sale of the said property through Tulasimani who is the husband of the 2nd defendant. He is an educated person in their family and also has a good job. At the time of sale of the above properties, he was working as a Secretary in Nasiyanur Primary Agricultural Cooperative Bank. He opened savings accounts in the said bank in the name of the plaintiff, defendants and in the name of his family. He has overstated the age of the plaintiff in the above savings accounts. iii) During the year 2003, when he had deposited the sale consideration, he deposited less amount in the name of the plaintiff, her grandmother Sellammal, 1st respondent and 3rd respondent and more amount in the name of Tulasimani, his wife 2 nd respondent and her children. In this regard, if the manager of the said bank is interrogated and documents are filed, the details of the fraud committed by the 2nd respondent and her husband will be known to the Court. For the above reason, it is necessary and reasonable to grant permission to the plaintiff to examine the Secretary and Manager of Nasiyanur Co-operative Bank as witnesses along with the documents. For the above reason, it is necessary and reasonable to grant permission to the plaintiff to examine the Secretary and Manager of Nasiyanur Co-operative Bank as witnesses along with the documents. When the sister of the plaintiff, 3rd respondent, complained to the higher authority of the said bank, they told to her that they would hand over the said documents if they receive a summon from the court and they have given letters in this regard. Therefore, it is necessary and justifiable to issue an order to investigate them. iv) Further, Erode Municipal Birth and Death Officers have issued the certificate only after examining the relevant documents regarding plaintiff''s birth. The plaintiff can prove her case only if the Court orders them to testify with relevant documents provided by them of correct age. Otherwise, she will suffer a lot of trouble and loss. Therefore, she prays that the Court may order the witnesses found in the petition to be examined as witnesses on her behalf in the said original case to bring the documents and to issue summons to them. 3. The petitioners / defendants 1 and 2 have resisted the application by stating that it is not true that they are the siblings of the plaintiff''s father. The 1st defendant has nothing to do with this case. It is not valid in law to add a person who was not a party to the original suit and mention that she has a share in the said suit property without any explanation as to how she is involved in the said suit. Also, the documents sought in the petition have nothing to do with this case and no one has the right to ask the financial details of others in the bank and such filing of documents is not legally valid. The plaintiff has procured and filed the document without mentioning her name in the documents with the Birth and Death Officer in Erode Municipal Corporation. The Birth and Death Officer cannot say whether the said birth certificate is of the plaintiff. The age of the plaintiff cannot be ascertained by producing that document. 4. The 2nd respondent / 3rddefendant has also resisted the application by stating that she did not deny the averments made in the application. The Birth and Death Officer cannot say whether the said birth certificate is of the plaintiff. The age of the plaintiff cannot be ascertained by producing that document. 4. The 2nd respondent / 3rddefendant has also resisted the application by stating that she did not deny the averments made in the application. The defendants 1 & 2 and their husbands conspired to defraud this defendant, plaintiff and her grandmother Sellammal of their share in the common property. Also, when the sale deed was executed, the plaintiff was a minor. Since this defendant was married to Iswaran who is the eldest son of the 1st defendant, she was behaved as stated by the 1st and 2nd defendants, and later, she had given a complaint in connection with the fraud committed by the defendants 1 & 2 and their family. As the husband of the 2 nd defendant has defrauded the 3rd defendant of several lakhs of rupees, the said Tulasimani has deposited in the said bank in the name of his wife, son, daughter and relatives. In this regard, when the 3rd defendant filed a complaint with the Registrar of Co-operatives, he gave a letter stating that he can file the above documents only after an order from the court. Therefore, as requested by the plaintiff, it is necessary for the case to examine the witnesses mentioned in the petition regarding the fraud committed by the 1st and 2nd defendants and their families. Hence, the petition should be allowed. 5. The Trial Court, upon consideration of the facts and hearing the arguments on both sides, allowed the application filed by the 1 st respondent / plaintiff. Aggrieved by the same, the petitioners / defendants 1 & 2 have filed this CRP before this Court. 6. The learned counsel for the petitioners would submit that the 1 st respondent filed the suit for partition during the year 2014 and this application is filed only in the year 2019 after completion of the pleadings, belatedly after a period of 5 years, the 1strespondent is now trying to introduce new facts by way of this application and hence it has to be dismissed. Further, he would submit that the 1 st respondent filed this application without giving any clear reason and sufficient cause to convince the Court to grant such a relief to her after closing of her evidence, which needs to be interfered by this Court. 7. Heard the learned counsel for the petitioners and the respondents, and perused the materials available on record. 8. On perusal of the records, it is seen that, originally, the suit properties were owned by the petitioners'' father Subramani Gounder. After his demise, the petitioners, their mother Sellammal and brother Shanmugam had owned the suit properties. The respondents are the daughters of the said Shanmugam. According to the petitioners, they have not sold any property along with the plaintiff and have not deposited any amount in the name of the plaintiff and her grandmother Sellammal in the said Cooperative Bank through the husband of the 2nd petitioner. In fact, the petitioners are unnecessary party to the suit and they have nothing to do with this case. Further, the witnesses who are sought to be examined by the plaintiff from the Cooperative Bank have no rights to give the financial details of the account holder of the bank and therefore they should not be permitted to examine as witness on the side of the plaintiff. Moreover, the plaintiff has filed the documents and obtained the birth certificate without mentioning her name in the Erode Municipal Corporation and therefore, the Officers of the said Corporation cannot give any evidence in respect of the correct age of the plaintiff. 9. Whereas, the learned counsel for the 1st respondent / plaintiff submits that the 2nd petitioner and her husband have committed fraud in depositing the amount which had been received from the sale of the suit properties in the name of the 1st respondent and her grandmother Sellammal, and only if the Secretary and Manager of the said Cooperative Bank are permitted to be examined and filed documents, the fraud played by the 2nd petitioner and her husband will be known to the Court and therefore she seek for dismissal of this petition. 10. It is an admitted fact that the 2nd petitioner''s husband was working as Secretary in the Nasiyanur Cooperative Bank and he used to deposit money in the said bank in the name of his family members and also in his name. 10. It is an admitted fact that the 2nd petitioner''s husband was working as Secretary in the Nasiyanur Cooperative Bank and he used to deposit money in the said bank in the name of his family members and also in his name. Further, in the additional written statement filed in the suit, the petitioners have clearly stated that the 1st respondent along with the petitioners have executed various sale deeds in respect of the suit property and received sale consideration. Now, whether the amount deposited by the 2nd petitioner''s husband in the name of his family members is of the amount received as sale consideration or is of the amount earned out of his own income can be known only if the Manager or Secretary of the said bank are examined by the Court. Further, the Birth and Death Officers of the Erode Municipal Corporation are sought to be examined by the plaintiff only to prove the veracity of the document filed by the plaintiff in respect of her age and therefore, this Court is of the view that the Trial Court was right in allowing the application filed by the 1st respondent / plaintiff to examine the above said witnesses. 11. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.