Madras High Court
Thiyagarajan vs Selvaraj on 8 July, 2021
1 S.A.NO.650 OF 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.650 of 2003
1. Thiyagarajan
2. T.Dinakaran
3. T.Jeyaraman
4. Kathiresan
5. Minor Loganathan
(Rep. by his father and natural guardian
4th appellant Kathiresan) ... Appellants/Respondents/
Plaintiffs
Vs.
1. Selvaraj
2. Minor Dinesh
(Rep. by father and natural
guardian, 1st respondent herein) ... Respondents/Appellants/
Defendants 2 and 3
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 14.01.2003
passed by the Additional District and Sessions Judge cum
Chief Judicial Magistrate, Ramanathapuram in A.S.No.99 of
1999 partly confirming the Judgment and Decree dated
27.10.1998 passed by the Subordinate Judge,
Ramanathapuram in O.S.No.36 of 1995.
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For Appellants : Ms.Parkavi Sampath,
for Mr.M.Saravanan.
For Respondents: Mr.M.P.Senthil,
for Mr.Antony Jesus.
***
JUDGMENT
The plaintiffs in O.S.No.36 of 1995 on the file of the
Sub Court, Ramanathapuram, are the appellants in this second
appeal.
2. The said suit was filed by the appellants herein
seeking partition and separate possession of 2/3rd share in the
suit items. The case of the plaintiffs was that the joint family
originally comprised Chidambaram Chettiyar and his two sons,
namely, Thangasamy Chettiyar and Narayanan Chettiyar.
Partition took place between Narayanan Chettiyar and
Thangasamy Chettiyar in the year 1950 and the same was
reduced into writing vide partition deed dated
29.03.1950(Ex.A.1). When the said partition deed was
executed, the first plaintiff Thiyagarajan and the fourth
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3 S.A.NO.650 OF 2003
plaintiff Kathiresan had already been born. In fact they are
also parties to Ex.A.1. The third son Selvaraj was born in the
year 1957. Thangasamy Chettiyar died on 21.10.1994.
Thereafter, the partition suit was instituted by Thiyagarajan
and Kathiresan along with their sons. Mother Lakshmi Ammal
was shown as the first defendant. Selvaraj and his minor son
Dinesh were shown as defendants 2 and 3. A tenant by name
Kamakshi Ammal was shown as the fourth defendant. The case
of the plaintiffs was that the suit item No.1 was an ancestral
property and that therefore, the three sons have 1/3rd share
each. The second item is also a building. The land on which
the suit item No.2 was built was purchased by the father
Thangasamy Chettiyar through three sale deeds. The purchase
was funded by the income generated only from the joint family
nucleus. The funds for constructing the building came out of
the grocery business in which the father Thangasamy
Chettiyar and his sons Thiyagarajan and Kathiresan took part.
3. The suit claim was partly opposed by defendants 1
to 3. They conceded the ancestral character of suit item No.1.
However, their stand was that the suit item No.2 was the
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self-acquired property of Thangasamy Chettiyar. Thangasamy
Chettiyar had executed a Will dated 27.07.1992 in which he
had bequeathed his undivided share in the suit item No.1 and
the entire suit item No.2 in favour of Selvaraj. He had also
created life estate in favour of his wife Lakshmi Ammal.
Therefore, the contesting defendants pleaded that the suit
claim cannot be accepted in toto.
4. Based on the rival pleadings, the learned trial
Judge framed the necessary issues. The first plaintiff
Thiyagarajan examined himself as P.W.1. Ex.A.1 to Ex.A.24
were marked. The contesting defendant Selvaraj examined
himself as D.W.1. The attestor of the said Will dated
27.07.1992 was examined as D.W.2 and the scribe was
examined as D.W.3. Ex.B.1. to Ex.B.14 were marked on the
side of the defendants. After considering the evidence on
record, by judgment and decree dated 27.10.1998, the learned
trial Judge granted preliminary decree in favour of the
plaintiffs as prayed for. Aggrieved by the same, Selvaraj and
his son minor Dinesh filed A.S.No.99 of 1999 before the
Additional District and Sessions Judge, Ramanathapuram. By
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5 S.A.NO.650 OF 2003
judgment and decree dated 14.01.2003, the first appellate
Court while confirming the preliminary decree passed in
respect of the suit item No.1, reversed the same in respect of
the suit item No.2. Suit item No.2 was declared as the
self-acquired property of Thangasamy Chettiyar and since the
defendants had proved the due execution of the Will.
Challenging the same, this second appeal came to be filed.
5. The second appeal was admitted on the following
substantial questions of law:-
“ 1. Whether in law has not the lower
appellate Court failed to see that the Will has not
been proved as required under Section 63 of the
Indian Succession Act read with Section 68 of
the Evidence Act?”
2. Whether in law has not the lower
appellate Court overlooked that item 2 is joint
family property as admitted by D.W.1, as it was
mortgaged in favour of State Bank of India by
the father and his sons?
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3. Whether in law is not the lower
appellate Court wrong in omitting to see that the
plaintiffs have been in possession and enjoyment
of item 2 as evidenced by Exs.A.16 to A.23?
4. Whether in law has not the lower
appellate Court failed to see that under Sec.8 of
Hindu Succession Act, the plaintiffs along with
the second defendant are entitled to equal
share?”
6. Heard the learned counsel on either side.
7. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and restore the
judgment and decree passed by the trial Court.
8. Per contra the learned counsel appearing for the
respondents submitted that the judgment and decree passed
by the first appellate Court do not call for any interference.
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7 S.A.NO.650 OF 2003
9. I carefully considered the rival contentions and
went through the evidence on record.
10. Two issues arise for my consideration. Whether
the due execution of the suit Will dated 27.07.1992 had been
proved by the respondents and secondly, whether the finding
of the first appellate Court that the suit item No.2 is the
self-acquired property of Thangasamy Chettiyar is correct or
not.
11. As rightly conceded by the learned counsel on
either side, since Selvaraj is the propounder of the Will
(Ex.A.15 = Ex.B.12), the burden lay on him to prove the same.
The learned counsel appearing for the appellants submitted by
placing reliance on the decisions reported in AIR 1947 PC 189
(Randhi Appalaswami V. Randhi Suryanarayanamurti), (2003)
10 SCC 310 (D.S.Lakshmaiah V. L.Balasubramanyam) and
(2020) 6 SCC 387 (Bhagwat Sharan V. Purushotham) that the
execution of the second Will is shrouded in suspicious
circumstances and that the propounder of the Will has not
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8 S.A.NO.650 OF 2003
cleared the same. It is true that Thangasamy Chettiyar had
executed a Will dated 10.06.1987(Ex.A.14) in which all the
three sons were bequeathed with equal shares. But in the
second Will dated 27.07.1992, the plaintiffs have been
excluded. Thangasamy Chettiyar had chosen to bequeath
entirely in favour of the second defendant Selvaraj.
12. Since a Will requires attestation, the
requirements set out in Section 68 of the Indian Evidence Act
Will have to be complied with. In this case, D.W.2 Pattany who
attested the Will had been examined by Selvaraj. It is
important to note that the Will dated 27.07.1992 is a
registered document. The original Will has also been
produced. The learned counsel appearing for the respondents
drew my attention to the fact that the plaintiffs had issued
notice dated 17.09.1987(Ex.A.5) to Thangasamy Chettiyar
cautioning him to not to encumber or alienate the second
item. They had also issued a paper publication. Thangasamy
Chettiyar had issued reply notice dated 29.09.1987(Ex.A.8).
Thus, it is obvious that the relationship between the plaintiff
on the one hand and Thangasamy Chettiyar on the other had
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broken down by the end of 1987. The first Will was executed
on 10.06.1987 while the notice came to be issued on
17.09.1987. It is also apparent from the evidence that the
plaintiffs thereafter moved to Madurai. Thangasamy Chettiyar
was residing with the second defendant/younger son Selvaraj.
Therefore, it is quite natural that Thangasamy Chettiyar chose
to execute the Will in favour of Selvaraj to the exclusion of the
plaintiffs herein. That Thangasamy Chettiyar had shown due
application of mind is also evident from the fact that life estate
had been created in favour of Lakshmi Ammal, his wife. Only
after the lifetime of Lakshmi Ammal, Selvaraj was to enjoy the
property absolutely. Lakshmi Ammal was shown as the first
defendant in the suit. She passed away on 17.04.1997. She
also adopted the written statement filed by Selvaraj.
Therefore, considering the totality of these circumstances, I
find that the first appellate Court had rightly approached the
issue and given a finding that the Will had been duly proved
by the defendant Selvaraj. I answer the first substantial
question of law against the appellant.
13. The next question that arises for my consideration
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is whether the second item bears the character of a joint
family property or it can be called as self-acquired property of
Thangasamy Chettiyar. It has been conceded that the first
item is an ancestral property and that therefore it is amenable
to partition as claimed by the plaintiffs. The existence of the
joint family is not in dispute. It originally comprised
Chidambaram Chettiyar, Thangasamy Chettiyar and
Narayanan Chettiyar. Thangasamy Chettiyar and Narayanan
Chettiyar entered into partition in the year 1950. When the
said partition was entered into, Thiyagarajan, the first
plaintiff, and Kathiresan, the fourth plaintiff, were already
born. They were also shown as parties in Ex.A.1 partition
deed.
14. The learned counsel appearing for the appellants
drew my attention to the fact that apart from allotting the first
item in favour of Thangasamy Chettiyar and his sons, a sum of
Rs.2,990/- was to be collected by Thangasamy Chettiyar. It
appears that the said amount was also collected. Thiyagarajan
has studied only up to 11th standard. Selvaraj, the second
defendant herein who was born in the year 1957 studied only
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11 S.A.NO.650 OF 2003
8th standard. The family does not appear to be an educated
family. It is highly probable that Thiyagarajan as well as
Kathiresan were assisting their father Thangasamy Chettiyar,
when he was carrying on grocery business. The existence of
the joint family nucleus has been established beyond doubt by
Ex.A.1. The land on which the second item building is located
was purchased in the year 1964 through three sale deeds,
namely, Ex.A.2, Ex.A.3 and Ex.A.4. A sum of Rs.3,000/- in the
early 50s was a very substantial sum. Therefore, it is possible
that item No.2 was purchased by Thangasamy Chettiyar. In
any event, the plaintiffs have discharged the initial burden
cast on them. The onus shifted to the contesting defendant. In
the decision reported in 2009 (4) CTC 440 (K.V.Ramasamy
Vs. K.V.Raghavan), it was held as follows:-
“34. From the conjoint reading of the
decisions referred to supra, the following
aspects can be culled out easily:
a)The joint family nucleus must have
left sufficient surplus income so as to enable
acquisition.
b)Initially burden lies upon a member
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12 S.A.NO.650 OF 2003
who alleges that a particular property is a joint
family property to the extent that the alleged
joint family nucleus must have left sufficient
surplus income and by utilising the same, the
property in question could have been acquired.
c)If the initial burden as referred to
above is proved then the burden shifts to the
member of the joint family setting up claim that
it is his personal property and the same has been
acquired without any assistance from the joint
family property.
d)Failure to prove existence of nucleus,
the inevitable presumption is that the acquisition
in question is nothing but self acquisition.
e)Mere fact of existence of a joint family
does not lead to presumption that a property
held by any of its member is joint family
property unless the above aspect are proved.
f)If the property acquired is standing in
the name of the female member of a joint family,
she need not prove as to how she acquired it.”
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13 S.A.NO.650 OF 2003
15. In the very same decision in paragraph No.32,
there is a reference to an earlier decision of the Hon'ble
Supreme Court reported in AIR 1954 Supreme Court 379
(Srinivas Krishnarao Kango Vs. Narayan Devji Kango and
others) in which it was held that where it is established that
having possessed some joint family properties which from its
nature and relative value may have formed the nucleus from
which the property in question may have been acquired, the
burden shifts to the party alleging self-acquisition. To the very
same effect is the recent decision of the Hon'ble Supreme
Court reported in (2020) 6 SCC 387(Bhagwat Sharan (dead)
through legal representatives V. Purushottam and others). In
the case on hand, the learned counsel appearing for the
appellant took me through the cross examination of D.W.1.
D.W.1 was not born, when Ex.A.1 partition was entered into.
He was born many years later. He conceded that he was not
aware as to how the suit item No.2 was acquired. D.W.1 had
also fairly admitted that the second item was mortgaged with
the State Bank of India and a sum of Rs.1,00,000/- as loan was
obtained. If really the second item was the self-acquired
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14 S.A.NO.650 OF 2003
property of Thangasamy Chettiyar, there was no need for the
brothers to join in the mortgage transaction. The admissions
made by D.W.2 Selvaraj in his cross examination have been
totally lost sight by the first appellate Court. I hold that the
defendants have failed to discharge the onus that was shifted
to them. Therefore, the finding of the first appellate Court that
the second item is a self-acquired property has to be
necessarily interfered with.
16. In this view of the matter, I restore the finding of
the trial Court that suit item No.2 was purchased out of the
joint family nucleus and that it is not a self-acquired property.
In the result, substantial questions of law 2 and 3 are
answered in favour of the appellants. I have already held that
the defendants have established the genuineness of the suit
Will. Thus in the suit item Nos.1 and 2, the plaintiffs had equal
share along with their father Thangasamy Chettiyar and the
second defendant Selvaraj. Thangasamy Chettiyar had already
bequeathed his share in favour of Selvaraj. Therefore, the
plaintiffs 1 to 3 are entitled to 1/4th share in both the suit items
and the plaintiffs 4 and 5 are entitled to 1/4th share in both the
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suit items and the first respondent herein Selvaraj is entitled
to 1/2 share in both the suit items. The impugned judgment
and decree passed by the first appellate Court is accordingly
modified and the second appeal is partly allowed. No costs.
08.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
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 Additional District and Sessions Judge cum
Chief Judicial Magistrate, Ramanathapuram.
2. The Subordinate Judge,
Ramanathapuram.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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16 S.A.NO.650 OF 2003
G.R.SWAMINATHAN,J.
PMU
S.A.No.650 of 2003
08.07.2021
https://www.mhc.tn.gov.in/judis/
