Appeal Suit No.947 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :22.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Appeal Suit No.947 of 2015
1.Thangaraj
2.T.Rajavel ... Petitioners
Versus
1.Sarasu
2.P.Neela
3.S.Saroja
4.Vetrivel
5.R.Periyamma ... Respondents
First Appeal is filed under Section 96 of the Code of Civil
Procedure, against the Judgment and Decree of the Learned I-Additional
District Judge, Salem in O.S.No.151 of 2011, dated 19.12.2014.
For Appellants : Ms. J. Prithivi
For Respondents : Mr. P. Jagadeesan
https://www.mhc.tn.gov.in/judis
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Appeal Suit No.947 of 2015
JUDGMENT
The Appeal Suit is directed against the Judgment and decree dated 19.12.2014 in O.S. No.151 of 2011, on the file of the I-Additional Court, Salem, in and by which the suit was filed by the respondents herein, for partition of the suit property and to allot 2/10 share each to the plaintiffs was decreed by the Trial Court.
2.The case of the plaintiffs is that the first plaintiff/Sarasu, the second plaintiff/ Neela, late Subramani represented by his legal heirs the third and fourth plaintiffs, and the first defendant/Thangaraj, second defendant Periamma and along with other one more person namely Ammasi (since deceased as a bachelor), were the children of Periyanna Nadar and Pappathi Ammal. The suit property was purchased by Pappathi Ammal, by a registered Sale Deed dated 07.12.1967. The said Periyanna Nadar died and thereafter, Pappathi Ammal passed away on 03.06.1968. The suit property was in joint possession and enjoyment of the plaintiffs and the defendants 1 & 2. In the year 2011, the plaintiffs came to know that the first defendant is attempting to settle the property on the third defendant, his Son. Therefore, they issued a legal notice on 22.04.2011 demanding the partition and separate possession of the suit https://www.mhc.tn.gov.in/judis 2/14 Appeal Suit No.947 of 2015 property. However, there was no positive response. However, on verification from the Sub-Register Office, they came to know that without any right over the title whatsoever, a Settlement Deed dated 02.02.2011 was executed by the first defendant in favour of his son i.e., the third defendant. Hence the present suit.
3.The suit is resisted by the defendants. The first defendant filed a written statement. It is the case of the defendants is that Periyanna Nadar married one Pappathi Ammal. There were only three children to this couple. The first defendant/Thangaraj and two other brothers by name Periyannan and Kaliyaperumal were only born to them. However, the said Periyannan and Kaliyaperumal, died in the year 1966 and 1975 respectively. Periyanna Nadar had an extra-marital relationship with one Pappu @ Parvathi, and the first plaintiff/Sarasu, the second plaintiff/ Neela, one late Subramani, the husband of the third plaintiff and the father of the fourth plaintiff, and the second defendant / Periyamma, are all born to the said Pappu @ Parvathi. Therefore, the suit property being the absolute property of Pappathi Ammal, the plaintiffs, as well as the second defendant, are not at all legal heirs of the deceased Pappathi Ammal. The first defendant was only in absolute possession and enjoyment of the https://www.mhc.tn.gov.in/judis 3/14 Appeal Suit No.947 of 2015 property and he had settled the property in favour of his son namely T.Rajavelu, the third defendant in the suit. Therefore, he prayed for the dismissal of the suit.
4.On the above pleadings, the following issues were framed by the Trial Court :-
"1) Whether the plaintiffs 1 and 2, defendants 1 and 2, 3rd plaintiff's husband Subramani are the sons and daughters of the Pappathi Ammal?
2) Whether the plaintiffs are having 6/10 shares in the suit properties?
3) Whether the 1st defendant is alone is the legal heir of the Pappathi as stated by the defendant No.1?
4) Whether the settlement deed executed in favour of defendant No.3 is valid?
5) Whether the plaintiffs are entitled for declaration and partition as prayed for?
6) To what other relief the plaintiffs are entitled to? "
5.On behalf of the plaintiffs, the first plaintiff was examined as P.W.1. One Kuppusamy, who is the neighbour and resident of the Village was examined as P.W.2. One Rameshkumar, the Tahsildar, who issued the https://www.mhc.tn.gov.in/judis 4/14 Appeal Suit No.947 of 2015 legal heir certificate, was examined as P.W.3. On behalf of the plaintiffs, the Sale Deed dated 17.12.1967 by which the suit property was purchased by Pappathi Ammal, was marked as Ex.A-1. The Settlement Deed, dated 02.02.2011, executed by the first defendant in favour of his son, the third defendant, was marked as Ex.A-2. The legal notice issued on behalf of the plaintiffs and the acknowledgment cards were marked as Exs.A-3 to Ex.A-
5. The copy of the legal heir certificate of the deceased Pappathi Ammal, was marked as Ex.A-6. The Family Card of PW2 evidencing his address, was marked as Ex.A-7.
6.On behalf of the defendants, the first defendant examined himself as D.W.1. The transfer of Patta proceedings in and by which, the Patta in respect of the suit property transferred in the name of the first defendant on 07.04.1997, was marked as Ex.B-1. The consequent Patta No.1343, issued in the name of the first defendant/D.W.1, on 21.02.2011, was marked as Ex.B-2. Yet another Patta, issued in the name of Periyannan, on 13.01.2006, is marked as Ex.B-3. The Chitta extract is marked as Ex.B-4. A certified copy of Decree in O.S.No.185 of 1990, dated 12.01.1996, was marked as Ex.B-5. A true copy of Patta, which was granted in the name of https://www.mhc.tn.gov.in/judis 5/14 Appeal Suit No.947 of 2015 the first defendant, is marked as Ex.B-6. The Kists receipts being 12 in number, evidencing the payment of kists of the first defendant, is marked as Ex.B-7. After execution of the Settlement Deed, the third defendant had paid kists on 18.12.2012, which was marked as Ex.B-8. The file maintained by the Taluk Office, Vazhapadi, regarding the issue of a legal heir certificate in respect of the deceased Pappathi Ammal, was summoned and marked as Ex.X-1.
7.The Trial Court considered the above evidence on record and after hearing the learned counsel for the parties, by Judgment dated 19.12.2014, held that the plaintiffs, by giving oral evidence of P.W.1, supported by evidence of P.W.2, and on yet another circumstance wherein the first defendant had admitted in his cross-examination that the deceased Subramani, was his brother in the complaint given by him to the police, took the circumstances cumulatively and held that the plaintiffs have proved the relationship with the said Pappathi Ammal, to the level of preponderance of probability. It is further held that the case of the defendants, that one Pappu @ Parvathy, with whom Periyanna Nadar, having extramarital relationship, being the case of the defendant 1 & 3, was not at all proved by the defendants and taking into consideration the https://www.mhc.tn.gov.in/judis 6/14 Appeal Suit No.947 of 2015 totality of the circumstances, passed a preliminary decree in the suit, by dividing the property into 10 equal shares and allotting 6 shares to the plaintiffs. Aggrieved by the same present appeal suit is laid before this Court.
8.Heard Ms.Prithivi, Learned Counsel for the appellants and Mr.P.Jagadeesan, Learned Counsel appearing on behalf of the respondents.
9.The learned counsel appearing for the appellants taking this Court through the pleadings and the evidence on record would submit that in this case, the entire geneology and the relationships as pleaded by the plaintiffs, are specifically denied by the defendants. In that view of the matter, it is the bounden duty of the plaintiffs to prove their case. The plaintiffs had produced the legal heir certificate, which is a document Pendente lite. Therefore, the Trial Court itself has discredited the same. The first plaintiff/P.W.1, had examined only P.W.2. The defendants had successfully discredited the evidence of P.W.2, by duly marking Ex.B-5, the suit between the first defendant and the son of P.W.2, and therefore, established their previous enemity and motive, and thus discredited the https://www.mhc.tn.gov.in/judis 7/14 Appeal Suit No.947 of 2015 evidence of P.W.2. Once the evidence of P.W.2 goes, then, there is nothing on record before the Trial Court to decree the suit. Even the third circumstance, relied upon by the Trial Court that as if the defendant had admitted the late Subramani, as his brother itself is not a proper reading of evidence and the first defendant/D.W.2, in his evidence had categorically stated that only upon the insistence of the police he had stated so. Even then the plaintiffs also did not produce the said complaint so as to prove what was stated in the said complaint. In that view of the matter, she would contend that the Trial Court cannot decree the case on the weakness of the case of the defendant, when the plaintiffs had miserably failed to prove their case. She would rely upon Section 50 of the Evidence Act, that neither any member of the family was examined. Nor P.W. 2 can be regarded as an expert as he, in the cross-examination was thoroughly exposed. He did not know about the particulars of the marriage, residence of the daughters etc., and she would submit that therefore, the evidence would not pass in the muster of Section 50 of the Evidence Act. Therefore, she would pray that the Appeal Suit be allowed, especially, when the defendant had categorically proved his exclusive possession of the suit property by producing the Patta and Chitta extract. The Trial Court had only on flimsy reason discredited the Patta, which is standing in https://www.mhc.tn.gov.in/judis 8/14 Appeal Suit No.947 of 2015 the name of the first defendant.
10.Per contra, the learned counsel for the respondent would submit that the plaintiffs have proved their case by examining the first plaintiff/P.W.1 and by examining another resident of the village, who had personal knowledge, who was 85 years old as P.W.2 and marking the legal heirship certificate as a document. The Tahsildar, who issued the legal heirship certificate was examined as P.W.3. It can be seen from Ex.X1, that the legal heirship certificate was duly issued after conducting a proper enquiry. Therefore, by virtue of the legal heirship certificate, even though pending the suit, the relationship of the parties is further established. He would also submit that about the two other factors, that for the pre suit notice there was no reply; and admission of D.W.1 in his cross- examination that he has mentioned that the deceased Subramani, the husband of the third plaintiff, as his brother, in the said Police complaint, would further buttress the case of the plaintiff. Therefore, he would submit that the Trial Court has rightly decreed the suit.
11.I have considered the rival submissions made on both sides and perused the material records of this case.
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12.The only question, which has to be decided is whether or not the plaintiffs 1 & 2, late Subramani, who is the husband of the third plaintiff and the father of the fourth plaintiff and the second defendant Periyamma are all born to the late Periyanna Nadar, through his wife Pappathi Ammal or by another lady Pappu @ Parvathi. It is the case of the plaintiffs that, they are all born to one Pappathi Ammal, along with the first defendant and one more person by name Ammasi, who also since passed away. Towards the claim of the plaintiffs, the first plaintiff examined herself as P.W.1. A cumulative reading of the evidence of P.W.1 along with the entire cross-examination, except for the mere suggestion that the plaintiff was only born to Pappu @ Parvathi, not even any suggestion has been made about the whereabouts or identity of the said Pappu @ Parvathi. On the other hand, P.W.1, had cogently deposed that she was born to Pappathi Ammal. To corroborate the evidence of P.W.1, P.W.2 was examined. Even though his evidence is sought to be as discredited, on account of the previous enmity, mere imputation of motive alone will not be enough, to totally discredit the evidence of P.W.2, in respect of the facts spoken to by him.
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13.Even other submissions made by the learned counsel for the appellants that he is unable to pinpoint the other particulars have to be considered from the fact that P.W.2, was aged about 85 years, at the time of examination, therefore, it is quite but natural, he is unable to remember all the details. However, as far as the maternity of the plaintiffs is concerned, he clearly and categorically had deposed that Periyanna Nadar, had only one wife by name Pappathi Ammal, and the parties are all progenies of the said marriage. To that extent, I find that inspite of the previous civil litigation between D.W.2 and P.W.2, P.W.2 is still reliable.
13.This apart, even though Ex.A-6/legal heirship certificate was issued only pending the suit, but, it can be seen that Tahsildar, who issued the legal heirship certificate, was examined as P.W.3. It has been mentioned that after due enquiry, the legal heirship certificate is issued. To that extent, even though the legal heirship certificate was obtained after filing of the suit, the said certificate can also be taken as a corroborative piece of evidence. As a matter of fact, the entire file leading to the issue of the certificate was summoned and marked as Ex. X1. The defendants are unable to point out any infirmity in the said proceedings. https://www.mhc.tn.gov.in/judis 11/14 Appeal Suit No.947 of 2015
14.Further, there are two other circumstances in this case, the first circumstance being that the admission of D.W.1, in his cross-examination that had mentioned that the deceased Subramani, who met with an accident, as his brother. It was not specifically denied by D.W.1 that he mentioned him only as step-brother. This apart, when a pre-suit notice was issued no reply, was also forthcoming. Therefore, I hold that the plaintiffs have proved their case about the relationship of the parties/genealogy. On the other hand, it is the defendant 1 & 3's specific case, that the plaintiffs are not at all sisters and the deceased Subramani, is not at all his brother and they were only step-brother and step-sisters. Except for the said ipse- dixit of D.W.1, absolutely, no evidence whatsoever has been brought on record in support of the case of the defendants. In that view of the matter, I hold that the relationship between the parties are categorically proved. Patta has been changed in the name of the first defendant, but it is only a bill enabling to pay a revenue will not confer any title of the first defendant. Once the first defendant does not have the title, the Settlement Deed executed by him, in favour of the third defendant, will not in any manner bind the plaintiffs.
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15.In that view of the matter, I answer issue No.1, in the affirmative that the plaintiffs 1 & 2, the defendants 1 & 2, and the third plaintiff's husband Subramani are the sons and daughters of the said Pappathy Ammal. The answer to issue No.2, is that the plaintiffs are having 6/10 shares in the suit property. In view of the answer to issue No.1, issue No.3 is also answered against the defendants 1 & 3. In view of my above findings, the Settlement Deed executed by the first defendant in favour of his son, the third defendant is invalid . In view of my above findings, the plaintiffs will be entitled for the declaration and the partition as prayed for. The Trial Court has granted the reliefs of partition as well as declaration.
16.In the result the Appeal Suit is without any merits and accordingly, it is dismissed. No costs.
22.09.2022 Index : yes/no Speaking/Non-speaking order klt To
1.The I-Additional District Court, Salem.
2.The Section officer, Original side, High Court of Madras. https://www.mhc.tn.gov.in/judis 13/14 Appeal Suit No.947 of 2015 D.BHARATHA CHAKRAVARTHY, J.
klt A.S. No.947 of 2015 22.09.2022 https://www.mhc.tn.gov.in/judis 14/14