Madras High Court
Pappammal (Died) vs Ariyamala (Died) on 25 February, 2021
S.A.No.1655 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.1655 of 2000
and
C.M.P.No.15494 of 2000
1.Pappammal (died) ...Appellant/Appellant/1st Defendant
2.Rajamanickam
3.Nagarathinam
4.Poongothai
5.Malathi
6.Arivukodi
7.Sivakamai ..Appellants
(appellants 2 to 7 were impleaded as legal heirs of the deceased sole appellant)
Vs.
1.Ariyamala (died)
2.Murugan
3.Subbiah Chettiar
4.Saroja ... Respondents/Respondents/Defendants
5.Krishnarengaraja @ Raju
6.Dhanalakshmi
(R5 and R6 were brought on record as legal heirs of the deceased first respondent)
PRAYER: This Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree made in A.S.No.82 of
1996 dated 18.12.1997 on the file of the Principal District Judge, Madurai
confirming the judgment and decree made in O.S.No.207 of 1986 dated
30.03.1992 on the file of the II Additional Sub Judge, Madurai.
For Appellants : Mr.A.Saravanan
1/11
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S.A.No.1655 of 2000
JUDGMENT
As against the concurrent findings of the Courts below granting
declaration in respect of 'A' Schedule property and in respect of other
properties, the present second appeal came to be filed.
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
The plaintiff and the first defendant are the sisters and their
mother, one Ariyamala left a Will dated 09.06.1965, by which 'A' Schedule
property was bequeathed in favour of the plaintiff and the other properties
('B' Schedule) were bequeathed in favour of the first defendant. The mother
of the plaintiff died on 10.02.1974. After the death of the mother of the
plaintiff, the plaintiff and the first defendant were residing in their shares as
per the Will along with their father. The 'A' Schedule property was included
in the Will but the 'B' Schedule property was not included in the will. 'C'
schedule property was gifted by the father of the plaintiff to the first
defendant. Hence, the plaintiff claims that the plaintiff is entitled to a half
share in the 'B' and 'C' Schedule properties. Hence, the suit.
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S.A.No.1655 of 2000
4. Before the trial Court, on the side of the plaintiffs P.W.1 was
examined and Exs.A1 to A6 were marked and on the side of the defendants
D.W.1 and D.W.2 were examined and Exs.B1 to B62 were marked. Based on
the materials and evidences.
5. The first defendant admitting the Will executed by the mother
submitted that there was a family arrangement in the family and the first
defendant was asked to maintain the father and in lieu of the said
maintenance, entire house was given to the first defendant. As far as 'C'
Schedule property is concerned, the father has settled the property in
favour of the first defendant on 23.07.1990.
6. It is the contention of the first defendant that though the Will is
admitted by the first defendant, other properties except house property
were already sold and the plaintiff is not absolute owner of the ‘A’ schedule
property and she is not entitled to any share in ‘B’ schedule property also.
It is the contention that there was a family arrangement and the plaintiff
has expressed inability to maintain thier father. Therefore, the Panchayat
decided that the first defendant has to maintain her father and to meet his
medical and funeral expenses and the plaintiff has to relinquish her interest
in the property and the entire property should be given to the first
defendant. Accordingly, the first defendant was in possession of the ‘B’
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S.A.No.1655 of 2000
schedule property and also perfected title in respect of ‘A’ schedule
property. It is the further contention of the first defendant that she is
entitled to the ‘C’ schedule property absolutely by virtue of the settlement
deed dated 23.07.1980 executed by her father.
7. Based on the above pleadings the trial Court has framed the
following issues:-
1)Whether the plaintiff is in the absolute owner of the suit
properties?
2) Whether the plaintiff is entitled to a half share in 'B' and 'C'
schedule properties?
3) Whether the family arrangement binds on the plaintiff?
4) Whether the plaintiff is barred to file the suit?
5) To what other reliefs?
Additional issues:-
1) Whether the settlement deed dated 23.07.1980 is true, virtual
and limit the plaintiff?
2) Whether the first defendant perfected title by long possession
beyond the period of limitation?
3) Whether the first defendant has done any development in the
property, if so, whether the first defendant is entitled for refund of the said
amount?
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S.A.No.1655 of 2000
8. The trial Court on appreciation of evidence on record found that
the Will has not been seriously disputed; Ex.B1, gift deed was not proved
and no attestors have been examined. Accordingly, the trial Court has
negatived the claim of the first defendant and granted declaration in
respect of ‘A’ schedule property in favour of the plaintiff and granted decree
in respect of ‘B’ and ‘C’ schedule properties allotting half share each to the
plaintiff and the first defendant. The first appellate Court has also
confirmed the findings of the trial Court. As against which, the present
second appeal is filed.
9. While admitting the second appeal, the following substantial
question of law had been framed:-
(1) Whether the lower Court erred in not relying upon Ex.B1 in
deciding the case of the appellant for partition of the 'A' schedule of the suit
property?
10. In addition to that the following additional substantial question
of law is also framed, which also required to be answered:-
(1) Whether mere admission of the execution without admitting the
title of the plaintiff will prove the truth of the Will as mandated under
Section 68 of the Indian Evidence Act?
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S.A.No.1655 of 2000
11. The learned counsel appearing for the appellant submitted that
the Will has not been established in the manner known to law and further,
though Ex.B1, registered document, was proved, the Court below has not
accepted the same and various other documents filed on the side of the
defendant was also not considered. Long possession clearly shows that the
possession of the first defendant was open, continuous, uninterrupted and
hostile to the plaintiff. This fact had also not been taken into consideration
by the Courts below.
12. The learned counsel appearing for the respondents mainly
contended that the Will has been admitted. Therefore, there is no need to
examine the attesting witnesses. It is also submitted that the Court cannot
go beyond the pleadings of the parties. Hence, prayed for dismissal of this
second appeal. In respect of his submissions, he relied upon the following
judgment:-
1. Union of India vs. E.I.D., Parry (India) Ltd. [AIR 2000 SC
831]
13. Admittedly, the plaintiff and the first defendant are none other
than sisters. The plaintiff has claimed right over the ‘A’ schedule property
on the basis of the Will, Ex.A1 dated 09.06.1965 said to have been executed
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S.A.No.1655 of 2000
by her mother. Though the first defendant had not disputed the pleadings
of the plaintiff, he denied the title in respect of the ‘A’ schedule property.
The Courts below mainly relying upon the pleadings of non-denial of the
Will held that Ex.A1 is proved and granted declaration. The Courts below
also held that Ex.B1 is not genuine on the ground that signature found in
Ex.B1 and Ex.A1 is not similar and further, the attesting witnesses have also
not been examined.
14. We are dealing with the testament left by the mother of the
plaintiff and the first defendant. Though Section 58 of the Indian Evidence
Act deals with admission of fact, which can be used against the party
making it, Section 68 of the Act, which deals with the proof of execution of
document required to by law to the attested and its admissibility in
evidence, makes it very clear that if the document is required by law to be
attested, the same shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution. Proviso to
Section 68 of the Act gives exemption to the non-testamentary documents,
which are required by law to be attested, when its execution is not denied
by other side.
15. Similarly, Section 69 of the Act deals with the manner in which
the Will can be proved when the attesting witness cannot be found or not
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S.A.No.1655 of 2000
alive. Similarly Section 71 deals with the manner in which the documents
to be proved when the attesting denies execution. Therefore, to prove the
testamentary of document like Will and the admit in evidence, compliance
of Section 68 of the Act is mandatory, when the attesting witness was alive.
If the attesting witnesses were not alive or could not be found, the signature
of one of the attesting witnesses and signature of the person executing the
document has to be proved, by examining any of the persons, who is
acquainted with the signature of those persons. Therefore, only on proper
compliance of this procedure, Will itself can be admitted in evidence.
16. Though Section 58 of the Act deals with the admission,
Sections 68 to 71 of the Act deals with the procedure of proof of execution
of document required to be attested. Therefore, without proving the
document as mandated under Sections 69 to 71 of the Act, one cannot
merely on the basis of some admission of document in written statement,
contend that no attesting witness is required to be examined. In this case,
admittedly, the plaintiff has not chosen to examine any of the attesting
witnesses or taken any steps to prove the document either under Section 69
or 71 of the Act.
17. It is also to be noted that the original Will has not been filed.
Certified copy of the Will alone is filed. For admitting secondary evidence,
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S.A.No.1655 of 2000
no foundation is made during trial of the case as required under Section 65
of the Act. Without making out the case for receiving secondary evidence,
production of a certified copy is not valid. The said fact has also not been
taken note by the Courts below. The courts below infact committed an error
in upholding the Will, which has not been proved in the manner known to
law. It is the contention of the defendant that there was a gift deed in
respect of 'C' schedule property under Ex.B1. None of the attesting
witnesses have been examined and except contending that the attesting
witnesses left the village, no efforts whatsoever was taken to prove the
document by other mode as contemplated under Sections 69 and 71 of the
Act. Such view of the matter, the finding of the Courts below negativing
Ex.B1 cannot be found fault with.
18. Though other documents prove the fact that the defendant is in
long enjoyment of the property, it is to be noted that mere long enjoyment of
the property cannot be termed as adverse possession unless hostile
intention is established. The long possession of the parties will not be
sufficient to hold that they have perfected title as against the real owner. As
far as co-owners are concerned, possession of one co-owner is deemed to be
on behalf of the others also. Such view of the fact, this Court holds that the
findings of the Courts below in disbelieving Ex.B1 and the plea of adverse
possession do not require any interference. Accordingly, the points are
answered.
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S.A.No.1655 of 2000
19. In the result, this appeal is partly allowed and the decree and
judgment of the Courts below granting declaration in respect of ‘A’ schedule
property is set aside. Since the plaintiff and the first defendant are the
sisters, each entitled to half share in the property. Accordingly, preliminary
decree is passed for dividing 'A' schedule property in two equal shares to
the plaintiff and the first defendant, who is also entitled to half share on
payment of Court fee, if any, which shall be worked out in the final decree
proceedings. No costs. Consequently, connected miscellaneous petition is
closed.
25.02.2021
Index : Yes/No
Internet : Yes/No
ta
To
1.The Principal District Judge, Madurai.
2.The II Additional Sub Judge, Madurai
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1655 of 2000
N.SATHISH KUMAR, J.
ta
Judgment made in
S.A.No.1655 of 2000
25.02.2021
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