Thennarasu vs Ramayee Ammal (Died)
2021 Latest Caselaw 14504 Mad

                                                             S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 20.07.2021

                                                   CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                          S.A.(MD)No.157 of 2013
                                                  and
                                           S.A.(MD)No.8 of 2014

                Thennarasu                                            ... Appellant in both S.A.

                                                      Vs.

                1.Ramayee Ammal (Died)
                2.Thiravidamani
                3.Subramani                                           ... Respondents in both S.A.

Prayer in S.A.(MD)No.157 of 2013 : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 13.08.2012 made in A.S.No.9 of 2012 on the file of the District Court, Karur, reversing the judgment and decree dated 18.10.2011 made in O.S.No.27 of 2006, on the file of the Principal Subordinate Court, Karur.

Prayer in S.A.(MD)No.8 of 2014 : Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree made in cross appeal in A.S.No.9 of 2012, dated 13.08.2012 on the file of the District Court, Karur, confirming the judgment and decree of the Principal Subordinate Court, Karur, in O.S.No.27 of 2006 dated 18.10.2011.

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

(In both Second Appeal) For Appellant : Mr.Raguvaran Gopalan For Mr.K.Prabhakar

For Respondents : No appearance

COMMON JUDGEMENT

The plaintiff in O.S.No.27 of 2006 on the file of the learned Principal

Sub Court, Karur is the appellant in these second appeals. They arise out of

partition suit proceedings.

2.The case of the plaintiff is that the suit items which are two in number

were purchased by his father/Mariyappan. The first item was purchased in his

own name in the year 1996 while the second item was purchased later in the

name of the plaintiff's mother namely., Ramayee Ammal. According to the

plaintiff, his mother/Ramayee Ammal was only a name lender and that she had

no wherewithal to purchase the second item. Mariyappan passed away on

13.12,1990 interstate. At the time of his demise, he left behind his wife

Ramayee Ammal, two sons namely., Thennarasu/plaintiff and Subramani and

one daughter namely., Thiravidamani. Therefore, the plaintiff claimed 1/4th

share in the said two items. The case of the plaintiff was resisted by the

defendants on two grounds. The second item which stands in the name of the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

mother/Ramayee Ammal is her absolute property and that it is not available for

partition. Mariyappan even during his life time had executed Will dated

18.09.1988 in respect of the first item, in which he had given 1/4th share in

favour of all the four legal heirs. However, Ramayee Ammal was also given

life interest over the first item till her demise and it was open to her to bequeath

her 1/4th share in the said item in the manner she deemed fit.

3.The plaintiff examined himself as P.W.1 and marked Exs.A1 to A10.

Ramayee Ammal was examined as D.W.1 and marked Exs.B1 to B17.

4.After consideration of the evidence on record, the learned trial judge by

judgment and decree dated 18.10.2011 upheld the contentions of the

defendants that the second item was the absolute property of Ramayee Ammal.

However, the trial court held that Ex.B10/will dated 18.09.1988 had not been

proved by the defendants and granted preliminary decree allotting 1/4th share to

the plaintiff in the first item. Aggrieved by the same, the plaintiff filed

A.S.No.9 of 2012 before the District Court, Karur., since his claim in respect of

the second item was rejected. Aggrieved by the preliminary decree passed by

the trial court in favour of the plaintiff in respect of the first item, the

defendants filed cross appeal.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

5.By the impugned judgment and decree dated 13.08.2012, the first

appellate court dismissed the appeal filed by the plaintiff and allowed the cross

appeal filed by the defendants. That necessitated filing of these two appeals.

S.A.(MD)No.157 of 2013 is directed against the judgment and decree made in

A.S.No.9 of 2012, while S.A.(MD)No.8 of 2014 is directed against the

judgment and decree made in the cross appeal. Since they inter-related, they

are heard and disposed together.

6.S.A.(MD)No.157 of 2013 was admitted on the following substantial

questions of law:-

(a) Whether the first appellate court is right in coming to the conclusion that the unregistered Will dated 18.09.1988 marked as Ex.B10 was proved in accordance with law under Section 68 of the Evidence Act? and

(b) Whether the first appellate court is right in placing the burden of proof on the plaintiff to prove in that the Will dated 18.09.1988 is correct in view of the subsequent admission made by the defendant?

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

7.S.A.(MD)No.8 of 2014 was admitted on the following substantial

questions of law:-

(a) Whether the courts below are right in coming to a conclusion that the second item of the suit property is the absolute property of Ramayee Ammal, the 1st defendant more so when it has been established that she had no independent source of income? and

(b) Whether the courts below are right in coming to a conclusion that the second item of the property is the absolute property of Ramayee Ammal when the appellant/plaintiff had let in cogent evidence and thereby rebutting initial presumption?

8.Though the respondents have been served and their names were printed

in the cause title, there is no representation on their behalf.

9.The learned counsel for the appellant 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 appellant and allow both the

second appeals.

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

10.I carefully considered the rival contentions. Since the respondents are

not represented before me, I undertook an independent examination of the

evidence on record. As already noted, the suit items are two in number. The

first item was admittedly purchased by Marriyappan in his name. When he

passed away, he left behind the appellant, respondents herein and his wife as

surviving legal heirs. If Marriyappan died intestate, the plaintiff will be

entitled to 1/4th share in the first item of the suit property. The case of the

plaintiff is that Mariyaapan died intestate. The case of the defendants is that

Mariyappan executed Ex.B10/Will dated 18.09.1988. The trial court had held

that the defendants had failed to prove the genuineness of the Will. The trial

court had set out a host of reasons to come to the said conclusion. The first and

foremost circumstance is that the Will was not filed by the defendants along

with the written statement. It required direction from the Court to cause

production of the Will. It was specifically noted by the trial court that even

after issuing such a direction, the defendants took several adjournments to

produce the original Will. Coupled with the fact that the Will is an unregistered

Will, the conduct of the defendants rightly aroused the suspicion of the trial

judge.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

11.Even though, the brother and sister of the plaintiff have also been

shown as defendants in the suit, it was the mother who alone was examined as

the witness. Ramayee Ammal, the mother of the plaintiff also admitted in the

cross examination that it was at her instance that her husband/Mariyappan

wrote the suit Will. Ramayee Ammal is primary beneficiary under the suit Will.

The trial court took into account the prominent role placed by the prime

beneficiary.

12.The defendant witnesses have also admitted that Mariyappan was not

in good health, when he executed the Will. Some serious discrepancies were

also noticed between the testimony of the attesting witnesses. More than

anything else, one of the witnesses was a close relative of Ramayee Ammal.

All these aspects led the trial court to hold that Will had not been proved by the

defendants.

13.The first appellate court had not dealt with the aforesaid reasons

assigned by the trial court for coming to the conclusion that the suit will was

not proved. Strangely, the first appellate court cast the burden of proof on the

plaintiff/appellant herein. It is too well settled that it is the propounder of Will

who has burden to prove it. In this case, the defendants particularly Ramayee

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

Ammal had performed the suit Will/Ex.B10. Therefore, the burden lays only

on her. But the first appellate court erroneously cast the burden on the plaintiff.

That apart, as rightly pointed out by the learned counsel for the appellant, the

approach of the first appellate court suffers from an internal contradiction. At

one place, the first appellate court would remark that the plaintiff had disputed

the signature of Mariyappan found in Ex.B10/Will. At another place, it would

observe that in response to the written statement, the plaintiff failed to file any

reply statement. It is well settled that failure to file reply statement cannot lead

to any adverse interference. The first appellate court had not borne the

aforesaid well settled principle in mind while interfering with the conclusion

arrived at by the trial court as regards the suit Will/Ex.B10. Therefore, I

answer the substantial questions of law framed in S.A.(MD)No.157 of 2013 in

favour of the appellant.

14.Coming to the second item of the suit property, I am of the view that

the courts below have correctly approached the issue. The second item stood in

the name of Ramayee Ammal, the mother of the plaintiff. It is quite possible

that the funds for purchasing the suit item came from the father/Mariyappan.

But that would not make any difference. It is open to a husband to purchase

a property in the name of the wife for her benefit. Merely because, the wife

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

did not have financial capacity to make the purchase, that would not have only

bearing on the ownership. It also depends on the intention of the parties. At no

point of time, Mariyappan had ever asserted that the suit second item belonged

to him. All along it was treated as the property of Ramayee Ammal. Therefore

exercising jurisdiction under Section 100 of Civil Procedure Code, I do not

deem it necessary to interfere with the concurrent findings of the courts below.

The substantial questions of law framed in S.A.(MD)No.8 of 2014 are

answered against the appellant.

15.In this view of the matter, the judgment and decree of the first

appellate court is is interfered with to the extent mentioned above and the

decision of the trial is restored in toto.

16.In view of the above, S.A.(MD)No.157 of 2013 is allowed and

S.A.(MD)No.8 of 2014 is dismissed. No costs.

                                                                                    20.07.2021
                Index              : Yes / No
                Internet           : Yes/ No
                ias

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.

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S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

G.R.SWAMINATHAN, J.

ias

To:

1.The District Court, Karur.

2.The Principal Subordinate Court, Karur.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

S.A.(MD)No.157 of 2013 and S.A.(MD)No.8 of 2014

20.07.2021

https://www.mhc.tn.gov.in/judis/