Madras High Court
A.K.C.Murugan vs Selva Seethalakshmi on 15 July, 2021
S.A.(MD)No.748 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.748 of 2007 and
M.P.(MD)No.1 of 2007
A.K.C.Murugan ... Appellant/Appellant/
1st Defendant
Vs.
1. Selva Seethalakshmi ... Respondent/Respondent/
Plaintiff
2. Jeyakodi
3. Jegathambal
4. Ramathilagam
5. Jeyakumar ... Respondents 2 to 5/
Respondents 2 to 5/
Defendants 2 to 5
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.2 of
2007 on the file of the Subordinate Judge, Kovilpatti, dated
20.04.2007 confirming the Judgment and Decree passed in
O.S.No.258 of 2004 on the file of the District Munsif Court,
Kovipatti, dated 27.07.2006.
For Appellant : Mr.Venugopal,
for Mr.M.P.Senthil.
For R-1 : Mr.V.Meenakshisundaram
For R-2 & R-3 : Mr.M.Jothi Basu
For R-4 & R-5 : Mr.G.Vidhya Maheswaran
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***
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S.A.(MD)No.748 of 2007
JUDGMENT
The contesting defendant in O.S.No.258 of 2004 on
the file of the District Munsif Court, Kovilpatti, is the appellant
in this second appeal.
2. The said suit for partition was instituted by one
Selva Seethalakshmi, the first respondent herein. The case of
the plaintiff was that the suit properties belonged to one
Chellaiya Thevar. Chellaiya Thevar had two sons, namely,
A.K.C.Murugan and A.K.Kaliyappan and two daughters,
namely, Jeyakodi and Jagathambal. The plaintiff Selva
Seethalakshmi was the daughter of A.K.Kaliyappan who died
in the year 1993. A.K.Kaliyappan is said to have married the
fourth defendant Ramathilagam after the demise of the
plaintiff's mother and begotten a son by name Jeyakumar who
was impleaded as the fifth defendant. The specific case of the
plaintiff is that Chellaiya Thevar died intestate in the year
1968 and that the suit items have not been partitioned.
3. The appellant herein who was shown as the first
defendant filed written statement contending that the suit
item No.1 which is a dwelling house was bequeathed in his
favour by a registered will dated 13.12.1967(Ex.B.1). He also
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controverted the other averments put forth by the plaintiff.
S.A.(MD)No.748 of 2007
The learned trial Munsif framed the necessary issues. The
plaintiff examined herself as P.W.1 and also examined two
other witnesses on her side as P.W.2 and P.W.3. Ex.A.1 to
Ex.A.12 were marked. The appellant examined himself as
D.W.2 and three other witnesses were examined on the side of
the defendants. Ex.B.1 to Ex.B.29 were marked on their side.
After considering the evidence adduced on either side, the
trial Court by judgment and decree dated 27.07.2006 granted
preliminary decree in favour of the plaintiff granting her 1/12th
share. Defendants 4 and 5 who were the second wife and son
of the plaintiff's father were granted 1/12th share each.
Aggrieved by the same, the first defendant/appellant herein
filed A.S.No.2 of 2007 before the Sub Court, Kovilpatti.
4. The first appellate Court by judgment and decree
dated 20.04.2007 dismissed the appeal and confirmed the
decision of the trial Court. Challenging the same, this second
appeal came to be filed.
5. This second appeal was admitted on the following
substantial question of law:-
“Whether the findings of the Courts
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below are vitiated by its failure to consider the
S.A.(MD)No.748 of 2007
evidence of D.W.1 and D.W.3 with reference to
Ex.B.1 will and the proof by the evidence of
D.W.3 as contemplated under Section 63 of
the Indian Succession Act?”
6. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and he took me through the testimony of D.W.1.
According to him, Suit item No.1 was bequeathed in favour of
the appellant herein vide an unregistered will dated
13.12.1967. The original will formed part of the documents.
Since the original will was with the bank, the appellant
examined the bank official/D.W.1 who categorically deposed
before the Court below that the photocopy was compared with
the original. Therefore, his contention is that the Court below
erred in holding that the appellant's case has to fail for
non-production of the original will. He submitted that Section
65 of the Indian Evidence Act, 1872 contemplates cases in
which secondary evidence relating to documents may be
given. The Courts below failed to take note of the aforesaid
provision. He therefore called upon this Court to answer the
substantial question of law in favour of the appellant and allow
this appeal by setting aside the impugned judgment and
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decree.
S.A.(MD)No.748 of 2007
7. Per contra, the learned counsel appearing for the
respondent submitted that the impugned judgment does not
call for any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. The suit for partition was resisted by the appellant
herein on the strength of the will dated 13.12.1967 said to
have been executed by Chellaiya Thevar. Therefore, the
burden to prove the same lay squarely on the appellant. The
question is whether the appellant had discharged his burden.
The appellant could have discharged the burden only by
producing the original will before the Court below and by
examining the attestors. The appellant had failed to produce
the original will before the Court below. Of course there is
evidence through D.W.1 that the original will had been
deposited by the appellant before the local bank; the bank
official had also deposed that they had compared the original
will with the photocopy.
10. I am afraid that this testimony of D.W.1/bank
official cannot come to the rescue of the appellant. The
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original will ought to have been produced before the Court
S.A.(MD)No.748 of 2007
below and if at all the comparison could have been done only
by the Court and not by the bank official. Section 65 of the
Indian Evidence Act, 1872 reads as follows:-
“ 65. Cases in which secondary
evidence relating to documents may be
given.––
Secondary evidence may be given of the
existence, condition or contents of a document in
the following cases: ––
(a) when the original is shown or
appears to be in the possession or power ––
of the person against whom the
document is sought to be proved, or
of any person out of reach of, or not
subject to, the process of the Court, or of any
person legally bound to produce it,
and when, after the notice mentioned in
section 66, such person does not produce it;
(b) when the existence, condition or
contents of the original have been proved to be
admitted in writing by the person against whom
it is proved or by his representative in interest;
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(c) when the original has been
S.A.(MD)No.748 of 2007
destroyed or lost, or when the party offering
evidence of its contents cannot, for any other
reason not arising from his own default or
neglect, produce it in reasonable time;
(d) when the original is of such a nature
as not to be easily movable;
(e) when the original is a public
document within the meaning of section 74;
(f) when the original is a document of
which a certified copy is permitted by this Act,
or by any other law in force in [India] to be given
in evidence;
(g) when the originals consist of
numerous accounts or other documents which
cannot conveniently be examined in Court and
the fact to be proved is the general result of the
whole collection.
In cases (a), (c) and (d), any secondary
evidence of the contents of the document is
admissible.
In case (b), the written admission is
admissible.
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In case (e) or (f), a certified copy of the
S.A.(MD)No.748 of 2007
document, but no other kind of secondary
evidence, is admissible.
In case (g), evidence may be given as to
the general result of the documents by any
person who has examined them, and who is
skilled in the examination of such documents. ”
11. The case on hand does not fall under any of the
circumstances set out in Section 65 of the Indian Evidence
Act, 1872. More than anything else, the suit was instituted on
17.07.2002. The first defendant must have been served with
the said summons shortly thereafter. The appellant had fairly
admitted in his evidence that only in the year 2004, he
mortgaged the suit item No.1 with the local bank and also
filed the said document as a part of the mortgage transaction.
He also admitted that in the year 2001, he mortgaged the
property. But then, redemption was made in the very same
year. In other words, only two years after the filing of the suit,
the document left the hands of the first defendant/appellant
herein. The first defendant should have filed the original will
along with the written statement. He could have filed an
application to compel the bank to produce the original will
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before the Court. He had not done so. Therefore, the Courts
S.A.(MD)No.748 of 2007
below had rightly declined to permit the appellant to take
shelter behind Ex.B.1.
12. That apart, there are few other circumstances
that throw some doubt on the defence of the appellant. The
will is said to have been executed on 13.12.1967. Some eight
months thereafter, a mortgage was executed jointly by the
father of the plaintiff and the first defendant. The registered
Othi deed was marked as Ex.A.12. In Ex.A.12, the recitals read
that following the demise of Chellaiya Thevar, suit item No.1
had devolved jointly on the executants. If really the Will had
come into force, the first defendant should have mortgaged
the property on his own and there was no need to join his
brother Kaliyappan.
13. It is also admitted that the ' Will ' does not appear
to have surfaced for almost twenty eight years. Chellaiya
Thevar passed away on 13.02.1968. Till 1996, the taxes were
remitted in respect of the suit items only in the name of
Chellaiya Thevar. Only in the year 1998, mutation appears to
have been made in favour of the first defendant. These
circumstances led the Courts below to hold that the plaintiff
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had made out a case for partition. Therefore, the approach of
S.A.(MD)No.748 of 2007
the Courts below cannot be said to be erroneous. I answer the
substantial question of law against the appellant.
14. At this stage, the learned counsel appearing for
the appellant states that suit item No.1 is a dwelling house in
which the appellant had been residing for several decades. He
also took me through the evidence of the other witnesses from
which it can be seen that the appellant as the eldest son of
Chellaiya Thevar had performed the marriages of the sisters
also. Therefore, in the final decree proceedings, this equity
obtaining in favour of the appellant will be borne in mind by
the Courts below and suit item No.1 will be allotted to the
appellant. But then, valuation exercise must be done and the
appellant will have to give up his share in the remaining suit
items correspondingly and proportionately.
15. With this direction, the judgment and decree
passed by the first appellate Court are confirmed and the
second appeal is dismissed. No costs.
15.07.2021
Index : Yes / No
Internet : Yes/ No
https://www.mhc.tn.gov.in/judis/
PMU
S.A.(MD)No.748 of 2007
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 Subordinate Judge,
Kovilpatti.
2. The District Munsif,
Kovipatti.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.748 of 2007
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.748 of 2007
15.07.2021
https://www.mhc.tn.gov.in/judis/
