Madras High Court
Francis Robert vs G.Isabella on 26 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.1189 of 2009
and
MP(MD)No.2 of 2009
1.Francis Robert
2.Mary Kamalam
3.C.Willington
4.C.Manimaran
5.C.Ellamchezian ...Plaintiffs / Appellants / Appellants
Vs.
Savariammal (died)
A.Devasahayam Nadar (died)
1.G.Isabella
2.A.D.Maria Dean Rusk
3.Y.Vasuki
4.D.Parthiban
5.D.Brown Kala
6.D.Washington ... Defendants / Respondents /
Respondents
(cause title was amended vide
order dated 12.07.2013)
https://www.mhc.tn.gov.in/judis
1/9
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree made in A.S No.139 of 2003
dated 04.11.2006 on the file of the Principal District Judge, Tuticorin
confirming the judgment and decree passed in O.S No.64 of 2001
dated 01.10.2002 on the file of the Principal District Munsif, Tuticorin.
For Appellants : Mr.T.Lajapathi Roy
For Respondents : Mr.P.Jessi Jeeva Priya
for Mr.G.Aravindhan for R1 to R6
JUDGEMENT
The defendants in O.S No.64 of 2001 on the file of the Principal
District Munsif, Tuticorin are the appellants in this second appeal.
The suit was one for partition. It was filed by one Savariammal. The
case of the plaintiff was that the suit properties belonged to one
Dharmar Gnanaprakasam. Dharmar Gnanaprakasam had a wife by
name, Gnanaprakasi Ammal. The plaintiff Savariammal, the first
defendant Francis Robert and T.M.Chandran were born to them.
Dharmar Gnanaprakasam Nadar passed away in the year 1985. The
mother Gnanaprakasi Ammal also passed away on 14.02.2000.
Chandran had passed away on 09.01.1993 leaving behind the
defendants 2 to 5 as his surviving legal heirs. According to the
plaintiff, she is entitled to 1/3rd share in the suit properties. The first
defendant Francis Robert opposed the suit claim by contending that
https://www.mhc.tn.gov.in/judis
the II Schedule property stood in the name of Gnanaprakasi Ammal
and that she had settled the same in his favour vide Ex.B3 dated
12.10.1999. Based on the divergent pleadings, the trial court framed
the necessary issues. The plaintiff Savariammal examined herself as
PW.1 and the attestors to the document Ex.B3 as PW.2 and PW.3.
Exs.B1 to 10 were marked. After consideration of the evidence on
record, the trial court decreed the suit and passed preliminary decree
on 01.10.2002 granting 1/3rd share in favour of the plaintiff in both
the suit schedules. Aggrieved by the same, the defendants filed A.S
No.139 of 2003 before the Principal District Court, Tuticorin. Vide
judgment and decree dated 04.11.2006 the first appellate court
dismissed the appeal. Challenging the same, this second appeal came
to be filed. The second appeal was admitted on the following
substantial questions of law :
“1.Whether the courts below are right in granting
the relief of partition to the respondent/plaintiff without
seeking the relief of setting aside the settlement deed and
gift deed executed in favour of the appellant/defendants in
respect of the suit properties?
2.Whether the courts below are right in holding
that the validity of the Will executed in favour of the
appellants/defendants cannot be accepted since it has not
got probate under Indian Succession Act ?”
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2.During the pendency of the appeal, defendants 2 to 6
(appellants 2 to 5 herein) settled the matter with the plaintiff and they
are no longer interested in pursuing this appeal. The appeal is being
conducted by the first appellant Francis Robert alone. The learned
counsel for the first appellant reiterated all the contentions set out in
the memorandum of grounds and wanted this Court to answer the
substantial questions of law in favour of the appellants and set aside
the judgment and decree.
3.Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference. She would submit that the “A” Schedule property
admittedly belonged to Dharmar Gnanaprakasa Nadar. However, “B”
schedule property is a Natham. According to her, the trial court
rightly held that even though Gnanaprakasi Ammal settled “B”
Schedule property in favour of the first defendant Francis Robert, still,
she could not have done so because she was not the owner of the
property. Following the demise of Dharmar Gnanaprakasa Nadar, “B”
Schedule property which is a Natham property devolved on
Gnanaprakasi Ammal and on all the three children. She submitted
that no substantial question of law arises for consideration.
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4.I carefully considered the rival contentions and went through
the evidence on record. The second schedule property is a dwelling
house. It is located in a site that was originally classified as Natham.
There is no doubt that Gnanaprakasi Ammal had executed Ex.B3
dated 12.10.1999 in favour of the first defendant. The courts below
have held that Gnanaprakasi Ammal could not have claimed absolute
title over the entire property. In my view, this conclusion is well
founded. It is nobody's case that Gnanaprakasi Ammal acquired the
suit properties in her independent capacity. Gnanaprakasi Ammal
could not have bequeathed the entire property in favour of the first
defendant. But then, Gnanaprakasi Ammal being a Christian widow
would have got 1/3rd share in the second suit schedule property while
other legal heirs would have each got 2/9th share. Vide Ex.B3
Gnanaprakasi Ammal had settled her interest in favour of the first
defendant. Thus, her 1/3rd share also would get added to the share
of the first appellant/first defendant. Thus, the first appellant would
have 5/9th share in the “B” Schedule property. The courts below failed
to take note of the fact that Gnanaprakasi Ammal would get 1/3rd
share following her husband's demise and in view of the execution of
Ex.B3, the said 1/3rd share would get added to the pre-existing share
of the first defendant. To this extent, the judgments and decrees
passed by the courts below warrant interference and modification.
https://www.mhc.tn.gov.in/judis
5.The defendants had filed written statement claiming that
Dharma Nadar executed a Will dated 03.04.1983 and the same was
marked as Ex.B1. It is true that Section 213 of Indian Succession Act,
1925 was amended and as per Amendment Act 26 of 2002 with effect
from 27.05.2002, it applies to all pending proceedings relating to Wills
executed by Christians. Failure to probate Ex.B1 cannot be held
against the defendants. But the delay in making the Will public can
be taken into account while examining the genuineness of the Will.
Admittedly, Dharma Nadar passed away in the year 1985. The
amendment was brought in in the year 2002. Thus, for 17 long
years, the Will was not probated. The courts below concurrently
disbelieved Ex.B1. Even though I answer the second substantial
question of law in favour of the appellants, the other reasons given by
the courts below for disbelieving Ex.B1 find favour with me. It was
certainly open to the plaintiff to maintain a partition suit by
proceeding on the premise that Ex.B3 dated 12.10.1999 does not bind
her. The first substantial question of law is answered against the
appellants. Since Ex.B3 is to be held as valid to the extent of her
1/3rd share in the second item in the “B” schedule property, the
judgments and decrees passed by the courts below are modified as
follows :
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(i)the first appellant, the LRs of Chandran
and the LRs of the Savariammal will each be entitled to
1/3rd share in the first item.
(ii)the first appellant will be entitled to 5/9th
share in the “B” Schedule property. The LRs of
Savariammal and LRS of Chandran will be entitled to
2/9th share each in the “B” Schedule property which is a
dwelling house.
(iiI)the LRs of the plaintiff will also be
entitled to benefit under any amicable arrangement that
may have been arrived at during the pendency of the
appeal.
6.The second appeal is partly allowed. No costs. Connected
miscellaneous petition is closed.
26.07.2021
Index : Yes / no,
Internet : yes / no
skm
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 Principal District Judge, Tuticorin.
2. The Principal District Munsif, Tuticorin.
https://www.mhc.tn.gov.in/judis
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
skm
SA(MD)No.1189 of 2009
and
MP(MD)No.2 of 2009
26.07.2021
https://www.mhc.tn.gov.in/judis
