Neelaveni vs Rani
2021 Latest Caselaw 22844 Mad

                                                                               S.A. No. 73 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          RESERVED ON        : 10.01.2022

                                          PRONOUNCED ON : 28.02.2022

                                                    CORAM

                             THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                               S.A. No. 73 of 2013

                     1. Neelaveni
                     2. Kanageswaran @ Kanagesan
                     3. Major Thirumagal
                     4. Major Thirugunam                                       ... Appellants

                     (Appellants 3 & 4 declared as major and next friend
                     their mother viz Neelaveni discharged from the natural
                     guardianship vide Court order dated 23.11.2021 made in
                     C.M.P. Nos. 20338 and 20339 of 2017 in S.A. No. 73 of
                     2013 by TKRJ)

                                                     Vs.

                     1. Rani
                     2. Rajeswari
                     3. Suguna
                     4. Ambica
                     5. Sivakumar
                     6. R.Geetha
                     7. Minor R.Vikram
                     8. Minor R.Sushmitha                                     ... Respondents


                     _________
                     Page 1 of 14


https://www.mhc.tn.gov.in/judis
                                                                                       S.A. No. 73 of 2013

                     PRAYER: Second Appeal filed under Section 100 of the Code of Civil
                     Procedure against the decree and judgment dated 26.09.2012 passed in
                     A.S. No. 46 of 2011 by the Subordinate Judge, Vaniyambadi, confirming the
                     decree and judgment dated 01.08.2011 passed in O.S. No. 38 of 2009 by
                     the Additional District Munsif Court, Vaniyambadi.


                                  For Appellants      :         Mrs.R.T.Sundari
                                                                for Mr.P.Jayaprakash

                                  For Respondents     :         Mr.Anand Venkatesh for R6,R7,R8
                                                                for Mr.L.K.Manjunath
                                                                No appearance for R1, R2 & R3
                                                                R4 & R5 - given up

                                                     JUDGMENT

Defeated unsuccessful plaintiffs are the appellants herein. For the

sake of convenience, the parties are referred as per ranking before the trial

Court.

2. The plaintiffs filed the suit for partition. According to plaint,

the 1st plaintiff is the legally wedded wife of Sivalingam and other plaintiffs

are sons and daughter born to the 1st plaintiff through the said Sivalingam.

Hence, she claims declaration of title to declare the sale deed dated

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

06.12.2006 in favour of the defendants 1 and 2 and sale deed dated

02.03.2009 in favour of the 7th defendant as null and void.

3. The contesting 3rd defendant filed written statement stating that

the 2nd item of the suit property originally belongs to one Periyasamy. He

has executed a gift deed with regard to the said properties in favour of his

son, namely, Sivalingam on 20.01.2006. The said Sivalingam was in

possession and enjoyment over the said properties along with the

defendants. The defendants 4 to 6 are the son and daughters of the said

Sivalingam born through the 3rd defendant. She is only the wife to the said

Sivalingam. It is false to state that the said Sivalingam as per the caste

customs divorced the 3rd defendant in the Village Panchayat. It is also

further false to state that the said Sivalingam and his father allotted the

property near Kanganachiamman Temple for maintenance to the defendants

as alleged in the plaint. It is also not correct to state that the defendants sold

the alleged property to Advocate Subramani. It is undiluted falsehood to

state that the defendants settled at Periyakammiyampattu Village about 38

years ago.

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

4. Further, she submits that, the 1st plaintiff is not the alleged 2nd

wife of Sivalingam. She is only the wife to the said Sivalingam. The said

Sivalingam during his life time never married either the 1 st plaintiff or any

other lady as his 2nd wife. The plaintiffs in order to grab the suit properties

had shown wrongly in the long cause title and in the plaint that she is the 2 nd

wife of Sivalingam. On the other hand, the 1st plaintiff is the wife of one

Perumal, S/o.Chinnapaiyan of Pallathoor Village. The plaintiffs and the said

Perumal are living together at Pallathoor Village. The 1 st item of the suit

property originally belongs to one Rajammal who is the mother of the

Sivalingam. The said Rajammal on 01.04.1976 executed a gift deed

bequeathing the 1st item of the suit property in favour of Sivalingam. From

the date of gift deed, the said Sivalingam was in possession and enjoyment

over the 1st item of the suit properties along with the defendants 4 to 6. Her

husband Sivalingam sold the 1st item of the suit properties to one

Manickam, S/o.Munisamy Gounder on 19.06.2000. Further, her husband on

26.12.2005 repurchased the above said properties from the said Manickam.

Her husband Sivalingam died on 03.11.2006. The said Sivalingam and the

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

defendants were lived together in the suit properties. The said Sivalingam

never divorced the 3rd defendant at any point of time. The said Sivalingam

never allotted any property towards maintenance. When there is no divorce,

then the question of allotting properties to the 3rd defendant for maintenance

does not arise. The 3rd defendant alone performed the death ceremonies of

Sivalingam as a wife. The plaintiffs never participated in any of the

proceedings. After the death of Sivalingam, the defendants alone were in

possession and enjoyment over the suit properties and they are residing in

the suit properties itself. The defendants are paying due kist to the

Government and are paying house tax to the Panchayat. All the revenue

records pertaining to the suit properties stand only in favour of the

3rd defendant.

5. The learned District Munsif, Vaniyambadi has dismissed the

suit before the trial Court. The plaintiffs examined themselves as PW1 to

PW5 and Exs.A1 to A21 were marked. On behalf of the defendants, DW1 to

DW3 were examined and Exs.B1 to B16 were marked. On behalf of the

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

3rd plaintiff, another set of Exs.A1 to A7 were marked and on behalf of

4th defendant, Ex.A8 was marked and on behalf of 5th defendant Ex.A9 and

A10 were marked. The trial Court dismissed the suit in A.S. No. 46 of 2011

on the file of the Subordinate Judge, Vaniyambadi. Hence, the second

appeal. Notice of motion was ordered in the Second Appeal.

6. When the matter is taken up for final disposal, the learned

counsel appearing for the appellants / plaintiffs filed two additional typed

set of documents viz., voter list for the year 1995, photographs, Transfer

Certificate of Kanakesan, Death Certificate of Sivalingam, voter list for the

year 2006, Patta, Nativity Certificate, Transfer Certificate of Thirugunam,

etc.

7. The learned counsel appearing for the appellants / plaintiffs

submits that relying on Exs.A2 to A10 and A12, they sought for the relief of

declaration of title in entirety. The 1st plaintiff claims to be the second wife

of the deceased Sivalingam after divorce with the 3rd respondent /

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

3rd defendant and placed reliance upon Ex.B10. Ex.B10 is the divorce

petition between deceased Sivalingam and the 3rd respondent / 3rd defendant

which appears to be dismissed for default. The explanation was offered by

the PW1 plaintiff that in view of the compromise arrived at between the

parties regarding allotment of land near the Temple, the case was dismissed

for default.

8. On perusal of Exs.B1, B2 and B4, this Court finds that the 2nd

item of the suit property was initially owned by the family members of

Sivalingam. Subsequently, it was sold to the third parties and it was again

purchased back by the said Sivalingam. After his death, the defendants 3, 4

and 5 sold under Ex.A12 and thereafter, the 2nd item of the suit property was

sold to the defendants 1 and 2 under Exs.A10 and A11. With regard to the

Item No.1 of the suit property, it was purchased by the Sivalingam under

Ex.A1. In fact, it was repurchased and the defendants 3 to 6 have sold the

property to the 7th defendant under Ex.A12 dated 02.03.2009. Thus,

Exs.A10 and A12 are the documents.

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

9. The case of the plaintiffs is that the 1st plaintiff is the wife and

other plaintiffs are the sons and daughter born to the land owner

Sivalingam. In this connection, I find that the Service Register of the said

Sivalingam was marked through PW5 Deputy Tahsildar. But there is no

endorsement regarding the legal heir in the Service Record. The 1st plaintiff

admitted that the said Annammal is the first wife of Sivalingam. Since the

said Annammal died after the judgment of the trial Court and the legal heirs

are brought on record in the appellate stage. No positive evidence has been

let in to prove the alleged marriage between the 1st plaintiff - Neelaveni with

Sivalingam. At the Second Appeal stage, two photographs and the voter list

of the year 1995 were filed and Transfer Certificate of Kanakesan dated

31.05.2001 is also filed. The aadhar card of the plaintiffs also have been

filed.

10. Heard the learned counsel appearing for the respondents. The

plaintiffs relied upon Ex.A3. Both the Courts below rejected the case since

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

no connected documents were examined by the appellants / plaintiffs. The

1st plaintiff and Sivalingam got married according to the Hindu Rights and

Customs on 22.02.1983. In this connection, Ex.A13 was marked and it was

issued by the Temple authorities. Both the Courts below have not assigned

any reason for rejecting the said document.

11. At the outset, I could state that the learned District Munsif,

Vaniyambadi has not even properly numbered the documents. Exs.A1 to

A21 were marked. Subsequently, I find that through the 3rd plaintiff, again

A1 to A7 were marked. Subsequently, the defendants have marked Exs.B1

to B16. Again I find that on behalf of the 4th defendant, Ex.A8 was marked.

On behalf of the 5th defendant, Exs.A9 and A10 were marked. It has created

a lot of confusion in dealing with the documents. Since both Judicial

Officers are removed from service on domestic enquiry, I am not proposed

to pass any adverse remarks as they are no longer in service. The lower

appellate Court has not given any findings with regard to the Exs.B7 and

B9, whether they are related to the suit property or not, so also Exs.B13 and

B14.

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

12. Per contra, I find that Exs.A5 to A7, A16 and A17 are receipts

and Exs.A8 and A9 are EB receipts as to the possession of the plaintiffs and

these documents are not appraised by the Courts below probably, due to the

wrong ranking of the exhibits as noted supra. It is a specific case of the

appellants / plaintiffs that Exs.A1 and B16 are the conclusive proof to

establish divorce between Sivalingam and the 3rd defendant and

consequently, the marriage between 1st plaintiff with Sivalingam.

13. Placing reliance upon the documents now filed in the

additional typed set of documents, the learned counsel appearing for the

appellants / plaintiffs would contend that they, being the sons of the

Sivalingam, are entitled for share. However, Exs.A13 and B13 are taken

into consideration along with Ex.A13 temple receipt and Ex.B16 is the

Civil Court proceedings. If the divorce between Sivalingam and 3rd

defendant is proved, then the plaintiffs would be entitled for 4/7th share and

the defendants 4 to 6 will be entitled for 3/7th share. In alternative, if the

marriage of the 1st plaintiff and Sivalingam is not proved, the 1st plaintiff is

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

not entitled for any share. However, if the plaintiffs 2 to 4 are the legal heirs

of the Sivalingam, they are entitled for 3/7th share. In otherwords, whether

the alleged divorce between Sivalingam and the 3rd defendant is proved,

then the plaintiffs will get 4/7th share. If the divorce is not proved, the

plaintiffs 2 to 4 are entitled for 3/7th share subject to the proof of paternity.

Nevertheless the lower appellate Court has not dealt with the matter in the

proper perspective.

14. Hence, I am of the considered view that it is a fit case for

remitting the matter to the appellate Court. Hence, the Second Appeal

stands allowed and the judgment and decree passed in A.S. No. 46 of 2011

is set aside and the matter is remitted back to the learned Subordinate Judge,

Vaniyambadi and A.S. No. 46 of 2011 is ordered to restore. The additional

documents that are now filed as indicated in the above paragraph, i.e.,

voters list, photographs, Transfer Certificate of Kanakesan and Transfer

Certificate of Thirugunam are to be marked with an opportunity to be given

to other side to cross-examine the same and thereafter, the findings have to

be rendered by the lower appellate Court as the paternity of the plaintiffs 2

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

and 3 are the legal heirs of the deceased Sivalingam. Besides, the another

specific finding as to whether the alleged divorce between the 3rd defendant

with the said Sivalingam has to be given. Hence, in view of the document

filed at the typed set, viz., voters list and school certificate in connection

with same already the plaintiffs have let in oral evidence, but not marked

any documentary evidence. Hence, before marking the documents, an

opportunity has to be given to other side to challenge the same by way of

cross-examination. Hence, when liberty is given to the appellants / plaintiffs

for having necessary applications before the lower appellate Court for

marking the documents at the appellate stage with an option to cross-

examine by the defendants side.

15. Accordingly, the matter is remitted back to the Sub Court,

Vaniyambadi for reconsideration with liberty to the appellants to mark

additional documents with the cross-examination of the defendants and

thereafter, the lower appellate Court shall pass an order keeping in mind

observation given in the preceding paragraph regarding alleged divorce

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

between the deceased Sivalingam and the original 3rd defendant and

establishment of plea of paternity by the plaintiffs and specific findings has

to be rendered therein and the time for disposal of the first appeal is four

months from the date of receipt of a copy of this order. However, there shall

be no order as to costs.

28.02.2022

Index : Yes / No Speaking order : Yes / No

vji

To

1. The learned Subordinate Judge, Vaniyambadi.

2. The learned Additional District Munsif, Vaniyambadi.

3. The Section Officer, V.R.Section, High Court, Madras.

_________

https://www.mhc.tn.gov.in/judis S.A. No. 73 of 2013

RMT.TEEKAA RAMAN,J.

vji

S.A. No. 73 of 2013

28.02.2022

_________

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