Madras High Court
M.Sarala vs Seethaiyammal on 29 January, 2021
S.A.(MD).No.723 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:29.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD).No.723 of 2020 and
C.M.P(MD)No.80 of 2021
M.Sarala Appellant
Vs.
Seethaiyammal Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against judgment and decree dated 05.12.2019 made in A.S.No.65
of 2017, on the firl of Subordinate Court, Paramakudi, reversing the
judgment and decree dated 29.07.2016 in O.S.No.19 of 2014, on the file
of the District Munsif Court, Paramakudi.
For Appellant : Mr.H.Thayumanaswamy
JUDGMENT
The defendant in O.S.No.19 of 2014, on the file of the
District Munsif Court, Paramakudi has come up with this Second Appeal.
Challenge is to the Judgment and Decree of the Appellate Court made in
A.S.No.65 of 2017, in and by which, the Appellate Court reversed the
Decree granted in O.S.No.19 of 2014.
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S.A.(MD).No.723 of 2020
2. The Suit in O.S.No.19 of 2014 was filed by the plaintiff,
claiming the relief of declaration of title and injunction. According to the
plaintiff, the suit property originally belonged to one Janaki Ammal, who
had purchased the same under Sale Deed dated 05.09.1949 from one
Nagaiah vagayara. After the death of the said Janaki Ammal in the year
1955 (Wrongly mentioned as 1945 in the plaint), the property devolved
on her only son Muthiah Pillai. The said Muthiah Pillai died 20 years
prior to the suit, i.e around 1994, leaving behind the husband of the
plaintiff, namely, Karuppiah Pillai, who is his only son. Claiming that the
sisters of Karuppiah Pillai had accepted the title of Karuppiah Pillai, the
plaintiff would set up title in herself under the settlement deed, said to
have been executed by the said Karuppiah Pillai on 28.03.2003. It is
further case of the plaintiff that though the settlement deed dated
28.03.2003 described the property correctly, the survey number was
given as 43/2 instead of 43/11. This necessitated the said Karuppiah
Pillai to execute another instrument of settlement dated 19.01.2007, with
correct survey number. Claiming that the defendant attempted to interfere
with her possession, setting up title in her favour, under a Sale Deed
dated 03.02.2006, said to have been executed by the plaintiff's son
Nithyanantham, the plaintiff sued for the above reliefs.
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S.A.(MD).No.723 of 2020
3.The suit was resisted by the defendant contending that the
suit property is the ancestral property of Karuppiah Pillai and that an oral
partition between him and his son Nithyanantham, an extent of 43 cents
was allotted to Nithyanantham, which was sold by Nithyanantham to the
defendant under a Sale Deed dated 03.02.2006. It is claimed that the
Settlement Deeds dated 28.03.2003 and 19.01.2007 executed by
Karuppiah Pillai were created by the plaintiff to set up tittle in herself. It
should be pointed out that the execution of those documents by
Karuppiah Pillai, was not specifically denied in the written statement.
4.At trial, one Kasi Viswanathan was examined as PW 1 and
three other witnesses were examined as PWs 2 to 4. Exs.A1 to A13 were
marked. The defendant was examined as DW 1 and Karuppusamy was
examined as DW 2. Exs.B1 to B4 were marked. Exs.C1 to C4 were also
marked through witnesses.
5.The trial Court, upon consideration of the evidence on
record, concluded that the plaintiff has not established her case. The trial
Court accepted the claim of the defendant that the property being an
ancestral property of Karuppiah Pillai, the settlement deeds executed by
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S.A.(MD).No.723 of 2020
him are not valid. On the above conclusions, the learned trial Judge
dismissed the suit.
6.Aggrieved, the plaintiff preferred an appeal in A.S.No.65
of 2017, before the Subordinate Court, Paramakudi. The learned
Appellate Judge, upon reappreciation of the evidence on record,
concluded that the property having been inherited by Karuppiah Pillai
from his paternal grand mother cannot be termed as ancestal property in
his hands. If the property is self acquired in the hands of Karuppiah
Pillai, his son Nithyanantham would not get right by birth, so as to enable
him to alienate the property even during the life time of his father
Karuppiah Pillai. The lower Appellate Court allowed the appeal and
decreed the suit as prayed for. Hence, the Second Appeal.
7. I have heard Mr. H.Thayumanaswamy, learned counsel for
the appellant. He would vehemently contend that the lower Appellate
Court was not right in accepting the settlement deeds, which have been
marked as Ex.A2 and Ex.A3. Since no attesting witness was examined
and the documents were not proved under Section 68 of the Evidence
Act. He would also further contend that though the claim is made that
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S.A.(MD).No.723 of 2020
Janaki Ammal purchased the property under Ex.A1 Sale Deed in the year
1949, even according to the plaint, she had died in the year 1945. It is
further contention of the learned counsel for the appellant that the
property being an ancestral property of Karuppiah Pillai, his son
Nithyanantham would be entitled to a share in the property.
8.Considered the submissions of the learned counsel for the
appellant. The question of examination of attesting witnesses does not
arise, as there is no specific denial of the execution of settlement deeds
by Karuppiah Pillai. Section 68 of the Evidence Act, 1872 reads as
follows:-
68.Proof of execution of document required by law to
be attested.
If a document is required by law to be attested, it shall not
be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if
there be an attesting witness alive, and subject to the
process of the Court and capable of giving evidence:
1[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered
in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution
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S.A.(MD).No.723 of 2020
by the person by whom it purports to have been
executed is specifically denied]
9. In view of the Proviso of Section 68, the lower Appellate
Court can not be faulted for accepting the registered Settlement deed in
the absence of specific denial. It should also be pointed at this juncture
that the specific case of the defendant is that the settlement deed was not
acted upon. As regards the next contention of the learned counsel for the
appellant that Janaki Ammal could not purchase the property under
Ex.A1 Sale Deed dated 05.09.1949, since she had died even in the year
1945, according to the plaint. Answer to this contention of the learned
counsel for the appellant lies in the cross examination of PW 1 by the
counsel for the defendant, where a suggestion has been made to the effect
that, the said Janaki Ammal died, only in the year 1955. Therefore, the
contention of the learned counsel for the appellant does not merit
acceptance. Once it is found that the property was not ancestral property
of Karuppiah Pillai, his father Muthiah Pillai, having died after 1956, the
property is inherited by Karuppiah Pillai under Section 8 of Hindu
Succession Act will be separate property and not as ancestral property.
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S.A.(MD).No.723 of 2020
10.In view of the above, I do not find any question of law,
much less a substantial question of law to enable me to entertain the
Second Appeal. The Second Appeal fails and it is accordingly dismissed.
No costs. Consequently, connected Miscellaneous petition is closed.
29.01.2021
Index : Yes/No
Internet : Yes/No
vrn
To
1.The Subordinate Court, Paramakudi.
2.The District Munsif Court, Paramakudi.
3.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.723 of 2020
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD).No.723 of 2020 and
C.M.P(MD)No.80 of 2021
Dated 29.01.2021
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