Madras High Court
Kolandayammal (Died) vs Ponnayal on 18 August, 2021
S.A. No.844 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
S.A. No.844 of 2007
and M.P.No.3 of 2015
1. Kolandayammal (died)
2.Guruvaiyammal
3.Ramayee
4.Lakshmi
5.Sundararaja N.
6.Muthusamy
7.Ramachandran
(Appellants 2 to 7 are brought on record as
LRs of the decased appellant vide order dt
10.07.2019 made in M.P No.3 of 2015 in
S.A.No.844 of 2007) .... Appellants
Versus
1.Ponnayal
2.Krishnammal
3.Murugavel ... Respondents
Second Appeal filed under Section 100 of the Civil Procedure code,
against the decree and judgment passed in A.S. No.80 of 2004 dated
28.06.2007 on the file of Sub Court, Bhavani, reversing the judgment and
decree dated 30.06.2003 in O.S.No.96 of 2002 on the file of I Additional
District Munsif, Bhavani.
1/15
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S.A. No.844 of 2007
For Appellants : Mr.K.Sathish Kumar
For Respondents 1 and 2 : Served
For Respondent No.3 : Affixed
JUDGMENT
This Second Appeal is filed challenging the reversal finding of the lower
appellate Court viz.,Sub Court, Bhavani in its judgment and decree dated
28.06.2007 in A.S.No.80 of 2004 by reversing the findings of the trial Court
dated 30.06.2003 in O.S.No.96 of 2002 rendered by I Additional District
Munsif, Bhavani.
2.The parties are described as per their litigative status in the suit.
3. The legal heirs of the deceased plaintiff are the appellants in this
second appeal. The suit in O.S.No.96 of 2002 was filed by Kolandayammal,
seeking for declaration and consequential permanent injunction in respect of the
suit schedule property. According to her, by virtue of sale deed dated
19.05.1980 (Ex.A.2), she became the absolute owner of the suit schedule
property and further, according to her, the defendants have attempted to
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S.A. No.844 of 2007
interfere with the her peaceful possession and enjoyment of the suit schedule
property and therefore, she was constrained to file the suit in O.S.No.96 of 2002
on the file of I Additional Munsif Court, Bhavani.
4. The respondents are the defendants in the suit.
5. According to the plaintiff, the suit property originally belonged to
Ponnusamy Gounder. He had purchased the same, out of his own funds,
through a Sale Deed registered as Document No.247/79 (Ex.A.1) dated
12.02.1979. Thereafter, the suit schedule property was sold to the plaintiff and
her husband Nanjan @ Nanjappan by a Sale Deed Document No.926/1980
(Ex.A.2) dated 19.05.1980. Thereafter, the husband of the plaintiff Nanjan @
Nanjappan had executed a registered Will (Ex.A.3) dated 20.11.1998 in
Document No.76/1998 bequeathing his absolute right and interest in the suit
schedule property in favour of the plaintiff.
6. According to the plaintiff, her husband Nanjan @ Nanjappan died on
23.01.1999 and thereafter, she became the absolute owner of the entire suit
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S.A. No.844 of 2007
schedule property. According to the plaintiff, the defendants are the relatives of
the plaintiff's vendor's vendor viz., Ponnusamy Gounder and they have illegally
attempted to interfere with the plaintiff's peaceful possession and enjoyment of
the property and therefore, she was constrained to file a suit in O.S.No.96 of
2002 before the I Additional District Munsif Court, Bhavani.
7. However, it is the case of the defendants that the suit schedule
property was owned by their deceased mother Selambaiammal. According to
them, they are the legal representatives of the deceased Selambaiammal and
since they are the legal representatives of the deceased Selambaiammal, they are
entitled to inherit the suit schedule property as owners. In the written statement,
they have disputed the sale deed dated 12.02.1979 registered as Document
No.247/79 (Ex.A.1) executed in favour of Ponnusamy Gounder.
8. Issues were framed by the trial Court and after trial, by judgment and
decree dated 30.06.2003 in O.S.No.96 of 2002, the learned I Additional District
Munsif, Bhavani decreed the suit in favour of the plaintiff. Aggrieved by the
judgment and decree dated 30.06.2003 passed in O.S.No.96 of 2002, the
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S.A. No.844 of 2007
defendants in the suit preferred a regular first appeal in A.S.No.80 of 2004
before the lower appellate Court, viz., the Subordinate Court, Bhavani.
9. By judgment and decree dated 28.06.2007 in A.S.No.80 of 2004, the
lower appellate Court viz., Subordinate Court reversed the findings of the trial
Court by allowing the appeal filed by the defendants and thereby dismissed the
suit. Aggrieved over the same, the plaintiff has filed the present Second Appeal.
10. This Court, while admitting the Second Appeal on 23.08.2007, ,
formulated the following substantial questions of law:-
" 1. Whether the approach of the Lower
Appellate Court on deciding the
genuineness of Ex.A.11 Will dated
24.12.1972 was in accordance with the
principle contemplated under Section 90 of
Indian Evidence Act? and whether the said
Will being a registered one, said to be not
proved merely because the Attestators and
Scribe were not examined, when those
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S.A. No.844 of 2007
persons were no more at the time of
examination?
2. Whether the defendants/respondents can
be permitted to agitate against the title of
the Plaintiff/Appellant who is only a
subsequent purchaser from the original
owners, without challenging the first sale
made in favour of the plaintiff's vendor
under Ex.A.1 dated 12.02.1979 especially
when such sale has become final and
conclusive and binding on the respondents
as they have not chosen to challenge the
same at any point of time much less within
the statutory period of limitation?
11. During the pendency of the second appeal, the plaintiff
Kolandayammal died on 15.04.2014 and the appellants, who are the children of
the deceased plaintiff Kolandayammal, have been brought on record as the legal
representatives of the deceased plaintiff vide order dated 10.07.2019 made in
M.P No.3 of 2015 in S.A.No.844 of 2007.
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S.A. No.844 of 2007
12. Learned counsel for the appellant drew the attention of this Court to
the documents which were marked as exhibits before the trial Court and also the
findings of the trial Court as well as the lower appellate Court. According to
him, the trial Court has rightly given a finding based on the materials and
evidence available on record that Ex.A.1 Sale deed dated 12.02.1979, standing
in the name of Ponnusamy Gounder and subsequent Sale deed (Ex.A.2) dated
19.05.1980, standing in the name of plaintiff and her husband are genuine
documents and has rightly decreed the suit in favour of the plaintiff. He submits
that the Sale Deed dated 12.02.1979 (Ex.A.1) as well as the Sale Deed dated
19.05.1980 (Ex.A.2) have not been challenged by the defendants. He also drew
the attention of this Court to the findings of the trial Court and submits that the
property tax receipt (fe;jhak;) dated 16.07.2002 which was marked as Ex.B.1
has been obtained by the defendants only after filing of the suit. Therefore, he
submits that the trial Court has rightly rejected the same.
13. The learned counsel also drew the attention of this Court to the patta
which stands in the name of the husband of the plaintiff and also submits that
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the plaintiff has proved his case beyond reasonable doubt that she is the
absolute owner of the suit schedule property.
14. Learned counsel also drew the attention of this Court to the findings
of the lower appellate Court in the impugned judgment and decree dated
28.06.2007 in A.S.No.80 of 2004 and would submit that the lower appellate
court, has rendered a perverse and an erroneous finding that the plaintiff has
suppressed the execution of the Will dated 24.12.1972, marked as Ex.A.11,
executed in favour of the brothers of the defendants. According to him, the
plaintiff has purchased the property not based on the Will (Ex.A.11), but, based
upon the parent Sale Deed dated 12.02.1979 (Ex.A.1), standing in the name of
Ponnusamy Gounder. Therefore, according to him, there was no suppression of
any material fact by the plaintiff. 3
15. Admittedly, the Sale Deed Document No.247/79 (Ex.A.1) dated
12.02.1979, standing in the name of Ponnusamy Gounder, remains
unchallenged till date by the defendants. Subsequently, the Sale Deed Document
No.926/1980 (Ex.A.2) dated 19.05.1980 executed in favour of the plaintiff and
her husband Nanjan @ Nanjappan also remains unchallenged.
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S.A. No.844 of 2007
16. The plaintiff has purchased the suit schedule property only based on
the Sale Deed Document No.247/79 (Ex.A.1) dated 12.02.1979 and has not
traced his title based on the Will (Ex.A.11) dated 24.12.1972 executed by
Selambaiammal. The plaintiff has traced the title over the suit schedule property
only based on the Sale Deed (Ex.A.1) dated 12.02.1079 and the Sale Deed
(Ex.A.2) dated 19.05.1980. Only during the course of trial, the Will dated
24.12.1972 was marked as Ex.A.11. In the deposition of the plaintiff, a
categoric statement was made that only after filing of the suit, the plaintiff was
aware of the Will (Ex.A.11). If there was suppression of any material document
before the trial Court, the plaintiff would not have filed the Will dated
24.12.1972, which was marked as Ex.A.11 before the trial Court.
17. Admittedly, under the Will (Ex.A.11) dated 24.12.1972, alleged to
have been executed by Selambaiammal, the defendants were not allotted any
share in the suit schedule property. The patta No.197, issued subsequent to the
purchase of the suit schedule property by the plaintiff, was also issued only in
his favour which has been marked as Ex.A.6. The only documents filed by the
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defendants before the trial Court were Ex.B.1 property tax receipt (fe;jhak;);;
Ex.B.2 Registrar's Certificate and Ex.B.3 Chitta. All the exhibits are dated
16.07.2002 which were marked as Exs.B.1 to B.3 respectively and have been
filed in the year 2002, whereas, the property was purchased by the plaintiff and
her husband in the year 1980 itself under the Sale Deed dated 19.05.1980.
18. The trial Court has duly considered the materials available on record
and only thereafter decreed the suit in favour of the plaintiff. The oral and
documentary evidence produced by the plaintiff will categorically prove that the
plaintiff Kolandayammal is the absolute owner of the suit schedule property.
However, the lower appellate Court has reversed the findings of the trial court
and dismissed the suit on the following grounds:-
(a) The plaintiff has not deposed by herself, but, instead has deposed
through her son Ramachandran (P.W.1) who has also not produced any medical
certificate to prove the plaintiff's illness.
(b) The plaintiff suppressed the Will dated 24.12.1972, which was
marked as Ex.A.11, by which, Selambaiammal had bequeathed the suit schedule
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property in favour of her three sons.
19. The reasons given by the lower appellate court for reversing the
findings of the trial court are erroneous and have been given by total non-
application of mind to the pleadings in the plaint as well as the title deeds
produced by the plaintiff which were marked as Ex.A.1 and Ex.A2 before the
trial court.
20. The Sale Deed dated 12.02.1979(Ex.A.1) standing in the name of
Ponnusamy Gounder as well as the sale Deed dated 19.05.1980 standing in the
name of plaintiff and her husband remains unchallenged by the defendants.
21. The Will dated 24.12.1972 (Ex.A.11), which the defendants are
relying upon, also does not give them any share in the suit schedule property. As
per the said Will, the beneficiary are only the male children of the deceased
Selambaiammal.
22. Admittedly, Ramachandran is the son of the plaintiff. The
defendants have not raised any dispute with regard to the same. In his oral
evidence also, PW1 has deposed that only due to his mother's illness, she has
been unable to depose by herself. No contra evidence has been produced by the
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defendants to disprove the statement of PW1 Ramachandran that his mother
was ill. Hence, the lower appellate court's rejection of evidence of PW1 is
erroneous and cannot be accepted by this Court. No contra evidence has also
been produced by the defendants to prove that deliberately the plaintiff has not
been examined as a witness.
23. Under the Will dated 24.12.1972(Ex.A.11), the defendants are not the
beneficiaries, but, it is only their brothers. When they are not beneficiaries under
the said Will and that too when the brothers in the said Will are very much
alive, during the pendency of the suit, the defendants raising a defence relying
upon the said Will dated 24.12.1972 cannot be accepted by this Court.
However, the lower appellate court misappreciated the evidence available on
record and has erroneously by total non application of mind to the evidence
available on record, reversed the findings of the trial court by dismissing the
suit.
24. For the foregoing reasons, I am of the considered view that the
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findings of the trial court will have to be restored and the findings of the first
appellate court under the impugned judgment and decree has to be set aside.
The substantial questions of law formulated by this Court at the time of
admission of this Second Appeal are answered in favour of the Appellants for
the following reasons namely, a) the Plaintiff has proved her title through
Ex.A.1, Ex.A.2, Ex.A.12 to Ex.A.14 and she has also proved her possession
through Ex.A.5 to Ex.A.10. On the contra, the defendants have not filed any
document to prove their possession, at the time and after the execution of Ex.A1,
Ex.A2, Ex.A12 to Ex.A14. b) Exhibits marked on the side of the defendants
namely Ex.B1, Ex.B2 & Ex.B3, admittedly, came into existence only after the
filing of the suit. Further when the plaintiff has filed title deeds which have been
marked as Ex.A1 & Ex.A2 to prove her title, Ex.B1 to Ex.B3 which are not title
deeds has no evidenciary value. c) The defendants are also not beneficiaries
under the Will dated 24.12.1972 (Ex.A11) and the sale deeds dated 12.02.1979
(Ex.A1) and 19.05.1980 (Ex.A2) by which the plaintiff claims ownership
remains unchallenged.
25. For the foregoing reasons, there is no merit in the contentions raised
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by the respondents/defendants and hence, the Second Appeal stands allowed.
Accordingly, the findings of the lower appellate court in A.S.No.80 of 2004 is
hereby quashed and the findings of the trial court in O.S.No.96 of 2002 is
confirmed. No costs. Consequently, connected miscellaneous petition is closed.
18.08.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
sr
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S.A. No.844 of 2007
ABDUL QUDDHOSE,J.
sr
To
1. The Subordinate Court, Bhavani
2. The I Additional District Munsif Court, Bhavani
S.A.No.844 of 2007
18.08.2021
http://www.judis.nic.in
