Madras High Court
M.Saraswathiammal vs A.Esakki Velar on 23 December, 2021
S.A(MD)No.159 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.159 of 2020
and
C.M.P(MD)No.2316 of 2020
M.Saraswathiammal ... Appellant/Appellant/Plaintiff
Vs.
A.Esakki Velar ... Respondent/Respondent/Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 11.08.2018 passed
in A.S.No.59 of 2013, on the file of the Principal Sub Court, Tirunelveli,
confirming the judgment and decree dated 12.03.2013 passed in
O.S.No.249 of 2010 on the file of the Principal District Munsif Court,
Tirunelveli.
For Appellant : Mr.R.T.Arivukumar
for Mr.N.Ga.Natraj
1/18
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S.A(MD)No.159 of 2020
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.249 of
2010 by the Principal District Munsif Court, Tirunelveli and in A.S.No.59
of 2013, by the Principal Sub Court, Tirunelveli, are being challenged in
the present Second Appeal.
2. The respondent/plaintiff has instituted a suit in O.S.No.249 of
2010, on the file of the trial Court, directing the defendant to handover
the vacant possession of the plaint schedule property to the plaintiff;
directing the defendant to pay a sum of Rs.1,500/- being the monthly
rent from September 2009 to February 2010 together with interest
thereon at the rate of 12% per annum till the date of realization and
also directing the defendant to pay a sum of Rs.400/- per month as
damages from March 2010 upto the date of handing over the vacant
possession of the suit schedule property by the defendant to the
plaintiff for his unauthorized use and occupation of the suit schedule
property together with interest at the rate of 12% per annum till the
date of realization, wherein, the present respondent has been shown
as defendant.
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S.A(MD)No.159 of 2020
3. The case of the plaintiff is that the plaintiff is the absolute
owner of the suit property, which is a residential building. The
defendant was a tenant in the suit property from 01.04.2004 for a
monthly rent of Rs.250/-. As the defendant had failed to pay the rent
from the month of September 2009 onwards and as the plaintiff's
husband had retired from service, the plaintiff wanted the building for
her own use and occupation. Hence, the plaintiff asked the defendant
to vacate the suit property. Since the defendant failed to do so, the
plaintiff issued a legal notice, dated 13.10.2010, to the defendant
terminating the tenancy and calling for the defendant to vacate and
deliver the vacant possession on 28.02.2010. The defendant, after
receiving the notice, has not vacated the property. Since the defendant
did not vacate from the suit property, the plaintiff has filed the suit with
the above prayer.
4. The defendant had filed a written statement denying all the
averments made in the plaint and submitted that the plaintiff is not the
owner of the property and the defendant has not paid a monthly rent
of Rs.250/-. For the notice, dated 13.01.2010, the defendant sent a
reply notice on 11.02.2010. Originally, the suit schedule property and
other properties were owned by the defendant's father Arumuga Velar
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S.A(MD)No.159 of 2020
and he executed a Will on 30.09.1991. After the death of Arumuga
Velar, the defendant got bequeathed the property through a Will and on
31.12.2009, he had executed a settlement deed in favour of his son
Krishnamoorthy. Suppressing the above said facts, the plaintiff has
filed the suit with false averments and the same has to be dismissed.
5. Before the trial Court, on the side of the plaintiff, P.W.1 to
P.W.3 were examined and Exs.A1 to A6 were marked. On the side of
the defendant, D.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.9
was marked and also Ex.X.1 was also marked.
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, has dismissed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.59
of 2013. The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, has dismissed the
appeal and confirmed the Judgment and decree passed by the trial
Court.
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S.A(MD)No.159 of 2020
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
9. At the time of admitting the present second appeal, this Court
had framed the following substantial question of law for consideration:
"1) Whether the Courts below are correct in
believing Ex.B.6, when the suspicious circumstances
are not dispelled with, especially, in the light of Section
111 of the Indian Evidence Act and when there are so
many contradictions in the testimony of attesting the
witnesses; in such away not satisfying the legal
requirements of proving attestation both under the
Indian Succession Act and under the Indian Evidence
Act?"
10. The learned counsel appearing for the appellant/plaintiff
would submit that the Courts below failed to note of the fact that the
partition pleaded by the plaintiff has been admitted by D.W.1 and
D.W.4 and also further, it was proved through P.W.2 and P.W.3. The
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S.A(MD)No.159 of 2020
Courts below have failed to note that the possession of the original
partition with D.W.1 has not been specifically denied by D.W.1 and his
failure to produce the original partition deed even though notice has
been given to him. The Courts below ought to have taken into
consideration Ex.A.2 and Ex.A.5, wherein, the series of tax receipts will
prove the possession of the suit schedule house by the plaintiff and
further no explanation had been given for the same by the defendant.
The Courts below have failed to note that D.W.2 and D.W.4 are none
other than the sisters of the defendant, who have categorically
admitted the partition, dated 25.09.1978 and further it was admitted
by D.W.6, the son of the defendant.
11. The learned counsel appearing for the appellant/plaintiff
would further submit that the Courts below have erred in arriving at
the conclusion that Ex.B.1 plan relates to the suit schedule property
since the said plan is dated 06.11.1979, which dates long before the
alleged Will, dated 30.09.1991 said to have been executed by Arumuga
Velar in favour of the defendant. The Courts below ought to have come
to the conclusion that Ex.B.1 to Ex.B.4 are created for the purpose of
the case. The Courts below failed to note that it was the case of the
defendant that till 30.09.1991 only Arumuga Velar was the absolute
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owner of the suit property and hence, Ex.A.1 to Ex.A.4 are the
documents created for the purpose of the case. The Courts below have
taken into consideration Ex.A.1 to Ex.A.5 which states that the
material facts in advancing the case of the defendant, were not
pleaded in the written statement and hence those documents ought
not to have been taken into consideration.
12. The learned counsel appearing for the appellant/plaintiff
would further submit that the Courts below failed to note that the
documents marked through D.W.6, dated 23.0.2009 does not relate to
the suit property and further D.W.6 was not a proper and relevant
witness to advance such pleading. The Courts below ought to have
come to the conclusion that there exists landlord and tenant
relationship on the basis of Ex.A.1, Ex.A.2 and Ex.A.5 and the evidence
of P.W.2 and P.W.3, who are the Village relatives would prove the same.
The Courts below have erred in coming to a conclusion that
Ex.B.6-document is a true and genuine Will, when no bonafide reason
has been stated for non-allotment of properties to all the sons. The
defendant was in a dominating possession over Arumuga Velar and the
suspicious circumstance has not been dispelled with for arriving at the
conclusion that the Will is a genuine one. The Courts below have failed
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to note that the statutory requirement under the Indian Evidence Act
and Indian Succession Act have not been properly complied with
according to the legal requirement of proving attestation by the
attesting witness and hence, Ex.B.6 has to be discarded and prayed for
allowing the Second Appeal.
13. Though notice has been served and the name of the
respondent has been printed in the cause-list, none appeared on behalf
of the respondent either in person or through counsel.
14. Heard the learned counsel for the appellant and also perused
the records carefully.
15. The claim made by the plaintiff is that she is the absolute
owner of the suit property, but there is absolutely no pleading as to
how the plaintiff had acquired the suit property. There is only a
statement in the plaint that the plaintiff is the owner of the suit
property. From Ex.A.1, it is seen that originally the suit property
belongs to one Manthiramoorthy, who is the husband of the plaintiff.
On a perusal of Ex.A.1, it is seen that plaintiff's husband had executed
a gift deed with respect to the suit property on 14.03.1984 in favour of
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the plaintiff. In Ex.A.1-Gift Deed, it is narrated that
P.W.1-Manthiramoorthy was allotted the property by virtue of a
partition deed, dated 25.09.1978. Admittedly, the above said partition
deed was not produced before the trial Court as well as the first
Appellate Court. In the absence of any partition deed being produced
before the Courts below to prove the said partition, the plaintiff tired to
prove her case by examining P.W.2 and P.W.3 as witnesses. P.W.1 to
P.W.3, the alleged attesting witnesses in the partition deed had stated
in their proof affidavit that there was an oral family partition between
the plaintiff's husband Manthiramoorthy, defendant and defendant's
father and the decision made on the above said oral partition was
subsequently got reduced into writing on 25.09.1978.
16. Further, P.W.2 in his evidence, has stated that in the presence
of the Panchayathars, a partition was effected and the same was
reduced into writing and in that deed, he affixed his signature and as
per the arrangement, vacant land of a defined extent was allotted to
Mandiramoorthy and the existing hut was allotted to the defendant and
another extent of the vacant land has been allotted to one
Paramasivam and the defendant was allotted totally two houses,
accordingly, as per the said partition, the suit properties were allotted
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to the plaintiff and the defendant and P.W.2 has admitted that he has
signed in the said document. According to P.W.2, partition was effected
in the presence of Panchayatars and on that day, document was
prepared. The version of the plaintiff that the partition was orally
effected earlier and subsequently, it was reduced into writing could not
be accepted, as no valid evidence to the effect. Admittedly, the alleged
partition deed was not a registered one. It is well settled law that when
a partition is reduced into writing, it shall be registered as per the
value. Even if there is such a partition deed, dated 25.09.1978, since it
is an unregistered one, the same cannot be relied upon and accepted
as there is a dispute. According to P.W.2, the partition was effected and
document was executed in the presence of Pancahyathars, but another
witness to the said partition viz., P.W.3, has stated that the partition
deed was executed in the house of one Chakkaram Asari and that he
has signed as a witness in the partition deed, but the said Chakkaram
Asari was not examined as a witness. When P.W.2 and P.W.3 has given
a contradictory evidence, the same has not been considered by the
trial Court as well as the first Appellate Court.
17. Further, it is the case of the plaintiff that the original partition
deed is in the hands of the defendant and a notice to produce the
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document was given to the defendant. Even after that, the defendant
did not produce it. But during the cross-examination of D.W.1, a
document was shown to D.W.1 suggesting that it was the copy of the
partition deed and the original of the partition deed was available with
the defendant, but no fruitful answer is brought out. According to the
plaintiff, the original deed was available with the defendant, the plaintiff
could have marked the copy of the said partition deed as a secondary
evidence. But on the side of the plaintiff, she failed to produce the copy
of the partition deed. P.W.1 to P.W.3-the alleged attesting witnesses in
the partition deed stated in their proof affidavit that there was an oral
family partition between the plaintiff's husband Manthiramoorthy,
defendant and the defendant's father and the above said oral partition
was subsequently reduced into writing, the said document was not
produced before the Courts below to decide the issue.
18. On going through the statement of D.W.2, it is seen that
D.W.2 has pleaded ignorance about the partition deed. D.W.4 in his
cross-examination admitted the partition deed and later, she has
refuted the said evidence. If there was a partition on 25.09.1978, since
it is unregistered one, it cannot be taken as an admissible evidence. In
the absence of any document produced to prove that the suit property
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was allotted to the plaintiff's husband, he has got no right to gift it to
the plaintiff. The defendant claimed title over the suit property through
Ex.B.6-Will. It is seen that the above Will was executed on 30.09.1991,
which is a registered document. As per the Will, the suit property is on
the South of the East-West pathway. Under the Will, the present suit
property was bequeathed to the defendant and East of the house
bearing No.11B, a property with house bearing No.11A was
bequeathed in favour of the plaintiff's husband. Eastern side property
was given to the defendant's brother Paramasivan. On the side of the
defendant, to prove Ex.B.6-Will, D.W.2 and D.W.4, who are the sisters
of the plaintiff's husband, were examined. Both of them have clearly
deposed that their father signed in the Will and they signed as
attesting witness in the presence of their father. They have further
deposed that their father was in a sound state of disposing mind at the
time of execution of the Will. There is some contradictions in the
evidence of D.W.2 and D.W.4. During cross-examination of D.W.2 and
D.W.4, they have stated that the Document Writer had written the Will
in hand and then they signed it. It is seen from Ex.B.6-Will that the
document is type written. The evidence of D.W.2 and D.W.4 except that
the Will was hand written or type written was not clearly proved, in all
other aspects, both the witnesses have clearly deposed about the
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execution of the Will. Therefore, it is clear that the Will was proved
according to law.
19. When the plaintiff contended that the Will is not genuine and
suspicious, the plaintiff has to prove the same and any suspicious
circumstances, under which, the same was executed. But during trial,
wherein D.W.1 to D.W.3 clearly admitted that they are sisters of the
plaintiff and the defendant and their father Arumuga Velar has
executed the Will, but the plaintiff submitted that the suit property is
an ancestral property and their father has got no right to execute a
Will. In the absence of any pleading by the plaintiff that the suit
property is an ancestral property, the plaintiff has to prove and plead
that the suit property is an ancestral property. The plaintiff's case is
that the suit property was allotted to his father in the partition and the
plaintiff now cannot claim that the suit property is an ancestral
property and the father of the plaintiff cannot execute a Will with
respect to ancestral properties which is not proved. Hence, Ex.B.6-Will
cannot be held that it was executed without any right. Only as per the
partition, the plaintiff's father has got the suit property. That being the
case, the plaintiff cannot now come and state that it was an ancestral
property and also further admitted that after the partition, dated
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25.09.1978, he constructed a house in the suit property. The
construction was made in the year 1983, but no document was filed to
prove that he had obtained permission for construction of the house.
The plaintiff's claim that the property is in a Panchayat area, he needs
no permission is not accepted. But on the side of the defendant, Ex.B.
1-plan for construction of the house was produced and it is in the name
of the father of the plaintiff and defendant namely, Arumuga Velar and
it was of the year 1979 would prove that the defendant had valid point
for consideration and he is in possession.
20. On a perusal of Ex.B.1-plan, it is seen that on the east of the
proposed site, there is passage and North is a street. P.W.1 and P.W.2
have clearly admitted that there is a passage on the East of the
schedule property. Hence, it is clear that Ex.B.1-plan was obtained in
the name of the defendant's father for the construction of the house in
the suit schedule property. On the side of the plaintiff, no documents
have been produced to prove that only the plaintiff's husband had
constructed the house. The house-tax receipts produced on the side of
the plaintiff are after the year 2009 and 2011. If the plaintiff's husband
constructed a house in the year 1983 itself, he would have paid tax and
in possession of some tax receipts and documents relating to his
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possession of the land. From the above, it is seen that the plaintiff had
failed to prove that she is the owner of the suit property and she is in
possession of the same.
21. The landlord and tenant relationship was not at all proved. In
the plaint, it is stated that the defendant had neglected to pay the rent
from the month of September, 2009, but other than the evidence of
P.W.2 during cross-examination on 07.12.2011 that before two months
of cross-examination P.W.1 had received rent from the defendant and
not proved otherwise. The evidence of P.W.2 is contradictory to the
version of the plaintiff stated in the plaint. In the absence of any
documentary evidence, the Court has come to the conclusion that the
plaintiff had failed to prove the landlord and tenant relationship
between the plaintiff and the defendant.
22. In the plaint, there is only a pleading to the effect that the
plaintiff is the absolute owner of the suit property. Only at the time of
trial, she produced Ex.A.1-gift deed executed by her husband P.W.1-
Manthiramoorthy. There is no pleading as to how she has acquired the
property, in the plaint. Ex.A.3 is the notice sent by the plaintiff to the
defendant and for that, the defendant sent Ex.B.8-reply notice on
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11.02.2010. In that notice itself, the defendant has clearly disputed the
title of the plaintiff and stated that the defendant acquired the property
by way of Ex.B.6-Will.
23. It is the submission of the learned counsel for the
appellant/plaintiff that whether the Courts below are correct in
believing Ex.B.6 when the suspicious circumstances are not dispelled
with, especially, in the light of Section 111 of the Indian Evidence Act
and when there are so many contradictions in the testimony of
attesting witnesses, in such a way not satisfying with the legal
requirements of proving attestation, both under Indian Succession act
and under the Indian Evidence Act.
24. Section 111 of the Indian Evidence Act reads as follows:-
111. Proof of good faith in transactions where one party is in
relation of active confidence. –– Where there is a question as to the good
faith of a transaction between parties, one of whom stands to the other in a
position of active confidence, the burden of proving the good faith of the
transaction is on the party who is in a position of active confidence.
Illustrations
(a) The good faith of a sale by a client to an attorney is in question
in a suit brought by the client. The burden of proving the good faith of the
transaction is on the attorney.
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(b) The good faith of a sale by a son just come of age to a father is
in question in a suit brought by the son. The burden of proving the good
faith of the transaction is on the father.
25. In the case on hand, attesting witnesses were examined and
the Will is proved and the plaintiff has miserably failed to prove his
case. The defendant has proved his case and both the Courts below
have correctly dismissed the suit and the substantial question of law is
answered as against the appellant/plaintiff and in favour of the
respondent/defendant.
26. In fine, this second appeal is dismissed, without any order as
to costs and the judgment and decree, dated 11.08.2018 passed in
A.S.No.59 of 2013, on the file of the Principal Sub Court, Tirunelveli is
confirmed. Consequently, connected Miscellaneous Petition is closed.
23.12.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.159 of 2020
V.BHAVANI SUBBAROYAN, J.
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized 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.
To
1.The Principal Sub Court,
Tirunelveli.
2.The Principal District Munsif Court,
Tirunelveli.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.159 of 2020
23.12.2021
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