Madras High Court
Savariammal vs Michael Ammal ..1St on 17 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 17.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.303 of 2021
and
C.M.P.(MD)No.4096 of 2021
1.Savariammal
2.Sahayam
...Appellants/ Appellants/Defendants 1 and 4
vs.
1.Michael Ammal ..1st respondent/1st respondent/ plaintiff
2.Kannan
3.Jeevaraj ..2 &3 respondents/2&3 respondents/
2 &3defendants.
Prayer: Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 11.12.2020 in A.S. No.48 of 2018 on the
file of the learned Sub Court, Ambasamudram confirming the judgment
and decree in O.S. No.106 of 2012 dated 31.07.2018 on the file of the
learned Additional District Munsif Court, Ambasamudram, seeking for
partition.
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2
For Appellants : Mr.A.Sankararamasubramanian
JUDGMENT
This second appeal has been filed against the Judgment and
Decree dated 11.12.2020 in A.S. No.48 of 2018 on the file of the
learned Sub Court, Ambasamudram confirming the judgment and
decree in O.S. No.106 of 2012 dated 31.07.2018 on the file of the
learned Additional District Munsif Court, Ambasamudram seeking
partition.
2. The case of the plaintiff is that the suit property and
northern side of the suit property originally belonged to one Lurdu and
he also paid house tax for the same and in possession and enjoyment
of the same. Sebastial is the wife of the said Lurdu. They had four
children, namely, Savari Ammal, Antony Ammal, Alphonse Savari
Anandan and Michael. The said Lurdu, who was born as a Christian,
died intestate. After the demise of Lurdu, his wife and children were
jointly in possession and enjoyment of the same. In an oral settlement
in the family, the suit property alone was allotted to Sebastial Ammal
and the northern side of the suit property was allotted to Alphonse
Savari Anandan, who is the son of the said Lurdu and father of the
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defendants 2 and 3 and both of them were in separate possession and
enjoyment of the same. In another family settlement, the first
defendant and the plaintiff, who are the daughters of the said Lurdu,
were settled separately. Sebastial Ammal executed a registered gift
deed in favour of one of her daugthers, namely, Antony Ammal.
Sebastial Ammal died. Antony Ammal, unmarried daughter of Sebastial
Ammal, also died intestate on 18.01.2006. The suit properties were
devolved upon the sisters of Antony Ammal, namely, the plaintiff and
the first defendant and the children of Alphonse Savari Anandan,
namely, the defendants 2 and 3 as per the Indian Succession Act and
they were in joint possession and enjoyment of the same. The plaintiff
and the first defendant are residing in the suit property. The fourth
defendant has no right over the suit property. She was not the legal
heir of Antony Ammal. The first defendant along with the fourth
defendant declared themselves as legal heirs of Antony Ammal.
Therefore, the plaintiff sent a legal notice dated 06.03.2012 to the
Vikramasingapuram Municipality and the Branch Office of the Tamil
Nadu Electricity Board. Thereafter, on 15.03.2012, when the plaintiff
sought for partition, the first defendant had not co-operated. Hence,
the suit for partition claiming her 1/3rd share in the suit property.
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3. The first defendant filed the written statement contending
inter alia that the averments contained in the plaint are false. The suit
property did not belong to Lurdu, but it belonged to his wife –
Sebastial Ammal. On 03.05.1985, Sebastial Ammal had given
possession of the same by executing a gift deed in favour of her
daughter – Antony Ammal. On 06.01.2006, Antony Ammal executed a
Will in favour of the fourth defendant. On 18.01.2006, the Will came
into force on the demise of Antony Ammal. Hence, the fourth
defendant had the absolute right over the suit property. Therefore, the
relief sought for partition by the plaintiff is not maintainable. The
northern side of the suit property measuring 2 cents, belonged to
Lurdu. The said Lurdu died 30 years back. There was no partition
among the legal heirs of Lurdu with regard to his properties. The
plaintiff has not included the said property in the suit. The suit is bad
for partial partition. The plaintiff had no joint possession over the suit
property. The plaintiff had not paid the proper Court fees as per the
Tamil Nadu Suit Valuation and Court Fees Act and prayed for the
dismissal of the suit.
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4. The fourth defendant filed the written statement stating that
the address of the plaintiff is false. The plaintiff is not residing in the
suit property. On 06.01.2006, Antony Ammal executed a Will in favour
of the fourth defendant. Antony Ammal died and thereafter on
18.01.2006 and the Will came into force. Thereafter, the fourth
defendant is in independent possession and enjoyment of the suit
property. Hence, the plaintiff is not entitled to the relief of partition.
Since the fourth defendant is residing in outstation and the first
defendant is also aged, the plaintiff with a view to grab the suit
property, filed the present suit. The plaintiff had not paid the proper
Court fees. The suit is bad for partial partition. The plaintiff had no
joint possession over the suit property and prayed for the dismissal of
the suit.
5. Before the trial Court, the plaintiff was examined as PW.1 and
Exhibits A1 to A9 were marked. On the side of the defendants fourth
defendant was examined as DW.1 and six documents were marked as
Exhibits B1 to B6. One Sridhar was examined as DW.2 and one
Thavamani was examined as DW.3.
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6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, had decreed the suit in favour of
the plaintiff and dismissed the claim made by the defendants.
7. Aggrieved by the Judgment and Decree passed by the trial
Court, the defendant had filed an Appeal Suit in A.S. No.48 of 2018, on
the file of the Sub court, Ambasamudram. The first appellate Court,
after hearing both sides and upon reappraising the evidence available
on record, had dismissed the appeal and thereby confirmed the
Judgment and Decree passed by the trial Court.
8. Challenging the said concurrent Judgments and Decrees
passed by the Courts below, the present Second Appeal has been
preferred.
9. The learned counsel appearing for the appellants / defendants
1 and 4 would submit that the partial partition was proved by the
defendants and the recitals of Ex.A1, which would clearly shows that
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the remaining property is under the hands of Sebasthiyalammal, which
is situated on northern side of the suit property. Therefore, the oral
partition in respect of the properties of Loorthu not proved by the
plaintiff by adducing any evidence. The courts below failed to note that
the defendants clearly proved Ex.B1, Will, dated 06.01.2006, through
the evidence of D.W.3, as per Section 69 of Indian Evidence Act.
Because, D.W.2 one of the attested witness turned hostile even
admitted his signature, therefore the Defendants have no other option
to examine of D.W.3, since the other attested witness namely Gomu
separated with his wife (D.W.3). The courts below erroneously
disbelieved Ex.B6, Mortgage deed, by assuming the possession of the
same without considering the fact that Ex.B6 is a registered document
and also its recitals clearly shown about the factum of Ex.B1, Will,
dated 06.01.2006. Therefore, the courts below wrongly come to the
conclusion about Ex.B6, on the basis of possession of documents.
10. The learned counsel for the defendants 1 and 4 would further
submit that the courts below failed to discuss about the factum of
partial partition as pleaded by the Defendants 1 & 4/Appellants, but
the courts below erroneously rejected the said plea with un-discussed
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manner in the findings of the judgment is not acceptable in the eye of
law. The courts below, without considering the fact that the D.W.3 is
the wife of another attested witness of Ex.B1, Will and D.W.3 was
examined to prove her husband signature as well as the thumb
impression (LIT of Anthonyammal) and therefore, the rejection finding
of the courts below with regard to the evidence of D.W.3 is not correct
either in law or on facts. As per the provision of Section 69 of Indian
Evidence Act, since one of the attested witness of Ex.B1, Will turned
hostile, the next option of examining the known witness of attested
witness signature examined as D.W.3 is acceptable one. The courts
below erroneously given finding by believing the revenue tax receipts
stands in the name of said Loorthu, which is marked as Ex.A6 in the
year 2004-2005. It is settled principles of law that the revenue
documents will not create any title with regard to the property,
Therefore, the courts below failed to consider about Ex.B3 & Ex.B4
with proper-perspective manner.
11. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
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12. In the Memorandum of Grounds, the defendants 1 and 4 /
appellants raised the following substantial question of law for
consideration:-
a) Whether the Courts below are correct
in decreeing the suit for partition when the
Ex.B.1 was proved by the evidence of DW.3 as
per Section 69 of Evidence Act?
b) Whether the Courts below rightly
rejected the plea of partial partition raised by
the defendants 1 and 4 when the plaintiff's not
produced any documents to disprove the
same?
c) Whether the Courts below correctly
rejected the document/ Ex.B.6 by assuming
possession of Mortgage deed with 4th
defendant?
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d) Whether the Courts below rightly
accepted the evidence of PW.1 by believing the
possession of the suit property even the
plaintiff not marked any document to prove the
joint possession in the suit property?
13. According to the plaintiff, the suit property and northern side
of the suit property originally belonged to one Lurdu and he was in
possession and enjoyment of the same. Sebastial is the wife of the
said Lurdu. They had four children, namely, Savari Ammal, Antony
Ammal, Alphonse Savari Anandan and Michael. The said Lurdu, died
intestate. After the demise of Lurdu, his wife and children were jointly
in possession and enjoyment of the same. In an oral settlement in the
family, the suit property alone was allotted to Sebastial Ammal and the
northern side of the suit property was allotted to Alphonse Savari
Anandan, who is the son of the said Lurdu and father of the defendants
2 and 3 and both of them were in separate possession and enjoyment
of the same.
14. In another family settlement, the first defendant and the
plaintiff, who are the daughters of the said Lurdu, were settled
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separately. Sebastial Ammal executed a registered gift deed in favour
of one of her daughters, namely, Antony Ammal. Antony Ammal, who
is an unmarried daughter of Sebastial Ammal, died intestate on
18.01.2006. As per India Succession Act, the suit property devolved
upon the sisters of Antony Ammal, namely, the plaintiff and the first
defendant and the children of Alphonse Savari Anandan, namely, the
defendants 2 and 3 and they were in joint possession and enjoyment
of the same. The plaintiff and the first defendant are residing in the
suit property. The fourth defendant has no right over the suit property.
She was not the legal heir of Antony Ammal. The first defendant along
with the fourth defendant declared themselves as legal heirs of Antony
Ammal. Therefore, the plaintiff sent a legal notice dated 06.03.2012 to
Vikramasingapuram Municipality and the Branch Office of the Tamil
Nadu Electricity Board. Thereafter, on 15.03.2012, when the plaintiff
sought for partition, the first defendant had not co-operated. Hence,
the suit for partition claiming her 1/3rd share in the suit property.
15. According to the first defendant, the suit property did not
belong to Lurdu, but it belonged to his wife – Sebastial Ammal. On
03.05.1985, Sebastial Ammal had given possession of the same by
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executing a gift deed in favour of her daughter – Antony Ammal. On
06.01.2006, Antony Ammal executed a Will in favour of the fourth
defendant. On 08.01.2006, the Will came into force on the demise of
Antony Ammal. Hence, the fourth defendant had the absolute right
over the suit property. Therefore, the relief sought for partition by the
plaintiff is not maintainable. The northern side of the suit property
measuring 2 cents, belonged to Lurdu. The said Lurdu died 30 years
back. There was no partition among the legal heirs of Lurdu with
regard to his properties. The plaintiff has not included the said
property in the suit. The suit is bad for partial partition. The plaintiff
had no joint possession over the suit property.
16. According to the fourth defendant, the plaintiff is not residing
in the suit property. On 06.01.2006, Antony Ammal executed a Will in
favour of the fourth defendant. Antony Ammal died on 18.01.2006 and
the Will came into force. Thereafter, the fourth defendant is in
independent possession and enjoyment of the suit property. Hence,
the plaintiff is not entitled to the relief of partition. Since the fourth
defendant is residing in outstation and the first defendant is also aged,
the plaintiff, with a view to grab the suit property, filed the suit.
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17. On persual of the documents filed it is found that Ex.P1,
dated 03.05.1985 is the registered Gift Deed, executed by one
Sebastial Ammal in favour of her unmarried daughter Antony Ammal.
P.W.1 in her cross-examination deposed that Ex.P6, House Tax Receipt
issued for the year 2004-2005, in respect of the property in Door No.
109, initially was in the name of her grandmother Sebastial Ammal.
Though the defendants 1 and 4 submitted that they have documents
refuting the claim of the plaintiff in respect of the property in Door No.
109, they have not produced any evidence before the Court and have
not given any explanation to that effect. There are contradictions in
the evidence of D.W.3. Therefore, this Court have no other option,
except to believe that the property, bearing Door No.109, is in joint
possession of the parties.
18. According to the plaintiff, Ex.P1, was executed by one
Sebastial Ammal in favour of her daughter Antony Ammal. According
to the defendants 1 and 4, the said Antony Ammal executed the Will in
favour of the 4th defendant. Ex.D2 and Ex.P2 are the Death Certificate
of Antony Ammal. As per Ex.D2 and Ex.P2, Death Certificate the said
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Antony Ammal died on 18.01.2006. Ex.D1 is the unregistered Will,
dated 06.01.2006. According to the plaintiff, the Will was a forged one
created by the defendant, but according to the defendants, the Will
was proved as genuine by the evidence of D.W.3, as per Law. It is
seen from the records that the Will was executed just 12 days before
the death of said Antony Ammal. As per Section 69 of Indian Evidence
Act, if no attesting witness could be found to be examined to prove
the Will, as mandated under Section 68, the Will must be proved by
establishing that at least the signature of one attesting witness is in his
handwriting and the signature of the testator is in his handwriting. The
question is whether there is sufficient evidence to prove that the
signature of at least one of the attesting witnesses seen in Ex.P1 &
Ex.D1 Will, is in the handwriting of that witness. Normally, a signature
is to be proved by the person, who is acquainted with the signature, as
provided under Section 47 or by the evidence of an expert, as provided
under Section 45 of Indian Evidence Act on the identity of the
signature.
19. The only evidence let in on the side of the defendants to
prove the execution of the Will is one Sridhar / DW2. But D.W.2 in his
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evidence though he had admitted that the signature found in the Will,
but deposed against the the defendants stating that he was not
aware what is written on the Will, who wrote the Will and admitted
that it was not written in his presence. Therefore, D.W.1 and 4 filed a
petition before the trial Court to declare him as hostile witness. One
Komu / D.W1 also singed in the Will as witness, but, he has not been
examined as witness. D.W.3 in his evidence deposed that he did not
know who is D.W.2. It is seen from the records that the testator of the
Will was not examined. Further, the defendants 1 and 4 have not
taken any steps to examine the husband of D.W.3, who is the witness
to Ex.D1. When that being the case, this Court has no hesitation to
hold that the Will is not proved by the defendants 1 and 4 to be
interfered with. The defendants have not produced the alleged gift
settlement executed by Sebasthiyammal to Anthoniammal.
20. This partition is sought for the properties of Anthoniammal.
The gift deed is accepted by both the parties. But DW.1 was not
available and his evidence has not thrown light when the Will was
executed. No mutation of records were also done by the defendants
earlier point of time and only after suit was filed they have mutated.
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21. The contention of the defendants 1 and 4 that the northern
side of the suit property ought to have been added in the suit property,
but has not been done, and hence, the suit is affected by partial
partition, is concerned, the 4th defendant in his cross-examination
deposed that it is not necessary to add the northern side of the suit
property in the suit. When that being the case, the question that the
suit is affected by partial partition does not arise at all. Further, the
defendants 1 and 4 not proved that they are in joint possession and
enjoyment of the suit schedule properties. Hence, the valuation of
the suit is proper and the Court fee paid is correct. The dispute is
regarding the property, which stood in the name of Anthoniammal and
hence, the claim of partial partition is rejected. Regarding the
mortgage deed alleged to have been executed by the first defendant
to his sister is also creating doubt, as the Will was exeucted only on
06.01.2006 but on 17.01.2006,, the Will came into froce, on the
demise of Antony Ammal, but the original is in his custody has also
created a doubt. The defendants' case was rightly rejected by the
Courts below, holding that the plaintiff is also entitled to 1/3rd share in
the suit property and this Court finds no reason to interfere with the
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well reasoned Judgments of the Courts below and also there is no
question of law much less substantial question of law involved in this
Second Appeal for consideration.
22. In view of the forgoing discussions, this Court is of the view
that the findings rendered by the trial court and upheld by the first
appellate Court, do not warrant any interference by this Court, as the
findings given on the issues framed by the Courts below as well as
specifically taken up by this Court to reach the root of the controversy,
appears to be based upon correct appreciation of oral as well as
documentary evidence. Hence, the present appeal fails and is
dismissed, accordingly. No costs. Consequently connected
miscellaneous petitions are closed.
17.12.2021
Index: Yes/No.
Internet: Yes/No.
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Note: In view of the present lock down owing to COVID 19 pandemic,
a web copy of the order may be utilised for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate/litigant concerned.
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To
1. The Sub Court, Ambasamudram
2. The Additional District Munsif, Ambasamudram
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V. BHAVANI SUBBAROYAN, J.
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S.A.(MD) No.303 of 2021
and
C.M.P.(MD)No.4096 of 2021
17.12.2021
https://www.mhc.tn.gov.in/judis
2016(3)TNCJ 552 (MAD) Smt.Krishnavei and another vs.R.Vanja ETC
“ As per Section 68 of the Indian Evidence Act and Section 63 of
the Indian Succession Act, it would be suffice to examine at least one
attestor to prove the Will, but when the evidence of RW2 creates a
doubt, with regard to the execution of the Will, inorder to prove the
Will, the petitioners should have examined the other attestor
viz.,Vasanthi RW2 went to the extent of saying that he was not in a
position to confirm the signature of the testator in the alleged Will. As
alreagy stated the petitioner have not re-examined RW2 with regard
to this aspect. In these circumstances the Executing Court had no
option except to reject the Will dated 29.01.2001. In view of the
evidence of RW 2 and RW.3, I am of the view that the Executing Court
has rightly rejected the Will and allowed the application, filed by the
first respondent in E.A.No.641/2002 in E.P.No.143/2001”
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