Ananthavalli vs S.Alagarsamy
2021 Latest Caselaw 20169 Mad

                                                                           S.A.(MD)No.1201 of 2008

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 01.10.2021

                                                      CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)No.1201 of 2008
                                                     and
                                             M.P.(MD)No.1 of 2010

                   Ananthavalli                   ... Appellant / Respondent / Plaintiff



                                                      -Vs-


                   S.Alagarsamy                    ... Respondent / Appellant / Defendant


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree dated 24.03.2008 passed in A.S.No.
                   12 of 2008 on the file of the District Judge, Sivagangai by setting aside the
                   judgment and decree dated 23.11.2006 passed in O.S.No.136 of 2005 on the
                   file of the Principal District Munsif Court, Manamadurai.


                                      For Appellant          : Mr.M.Ponniah
                                      For Respondent         : Mr.S.Natarajan




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


                   1/12
                                                                        S.A.(MD)No.1201 of 2008

                                                    JUDGMENT

The plaintiff in O.S.No.136 of 2005 on the file of the Principal

District Munsif Court, Manamadurai is the appellant in this second appeal.

2. The appellant herein filed the said suit seeking the relief of

declaration and recovery of possession. The case of the plaintiff is that the

suit property bearing door No.106 belonged to her by virtue of the

settlement deed dated 01.12.2003 executed in her favour by her husband

namely Sonaimuthu. The plaintiff pleaded that since the defendant who is

none other than the brother of the plaintiff's husband did not have any home

on his own, he was permitted to reside therein. Since the plaintiff required

the said premises for own use and occupation, she issued notice dated

06.07.2005. After receiving the same, the defendant issued reply dated

15.07.2005 projected a rival claim. Hence, the plaintiff was constrained to

file the said suit. The defendant filed a detailed written statement

controverting the plaint averments. Based on the divergent pleadings, the

trial court framed the necessary issues. The plaintiff examined herself as

P.W.1 and two other witness on her side. She marked Ex.A1 to Ex.A6. The

defendant examined himself as D.W.1 and two other witnesses on his side.

Ex.B1 to Ex.B4 were marked. After considering the evidence on record, the

trial court by judgment and decree dated 23.11.2006 decreed the suit as https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1201 of 2008

prayed for. Aggrieved by the same, the defendant filed A.S.No.12 of 2008

before the District Judge, Sivagangai. By the impugned judgment and

decree dated 24.03.2008, the appeal filed by the defendant was allowed and

the suit was dismissed. Challenging the same, this second appeal came to

be filed. Initially notice was ordered and the records were called for. On

the last hearing date ie. 24.09.2021, it was formally admitted and the

following substantial questions of law were framed:-

“(1) Whether the finding of the first appellate court that Ex.A1 does not convey title to the plaintiff is perverse?

(2) Whether the finding of the first appellate court that Ex.B1 had been proved by the defendant is correct?

(3) Whether on a consideration of evidence on record, the interference of the first appellate court with regard to the finding of the trial court that the plaintiff had established better title is justified?”

3. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds. He also submitted that

the appellant had filed M.P.(MD)No.1 of 2010 for adducing additional

evidence. The learned counsel for the appellant submitted that in the

interest of justice and to render a proper judgment, the additional evidence

may be allowed to come on record. He called upon this court to answer the

substantial questions of law in favour of the appellant and set aside the

impugned judgment and decree and restore the decision of the trial court.

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

S.A.(MD)No.1201 of 2008

4. Per contra, the learned counsel appearing for the respondent

submitted that the impugned judgment and decree do not call for

interference. He pointed out that the suit property is situated in natham

poromboke. The suit property along with the adjacent site totally measured

728 square feet. It was originally occupied by his father Sangu. Sangu had

three sons namely Sonaimuthu, the defendant herein and Pandi. Even in the

year 1987 itself, there was a family arrangement between the plaintiff's

husband and the defendant. It was subsequently reduced into writing and

marked as Ex.B1. As per the terms of the agreement, the plaintiff's husband

was to reside in Door No.104, while the defendant was to reside in Door

No.106 which is the suit property. The plaintiff's husband had no authority

whatsoever to include the suit property in the so called settlement deed

Ex.A1. The learned counsel would point out that the defendant had

impeached the genuineness of the settlement deed said to have been

executed in favour of the appellant. A deed of settlement requires

registration and attestation by two witnesses. In the case on hand, Ex.A1

had been registered. But it was not proved in the manner known to law.

None of the attesting witnesses were examined. The plaintiff's husband

also did not enter the witness box and that is why, the first appellate court

applying the mandate set out in Section 68 of the Indian Evidence Act, 1872

brushed it aside. Ex.B1 being a record of an antecedent evident does not https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1201 of 2008

require registration. It is not a compulsorily registrable document under

Section 17 of the Registration Act, 1908. The defendant had adduced

evidence to show that it was he who had been remitting the property tax in

respect of the suit house. He also would submit that non-joinder of the

other brother namely Pandi is fatal to the case of the plaintiff. It is not

enough if the plaintiff merely predicates her case on Ex.A1. She

should have further proved that the plaintiff's husband had title over the suit

property so that he could convey the same in favour of the plaintiff. No

such effort was never undertaken. The plaintiff cannot try to make good in

the second appeal what she failed to do so in the trial court. M.P.(MD)No.1

of 2010 can be allowed if the requirement set out in Order 41 Rule 27 of

C.P.C., are fulfilled. In the case on hand, the appellant had miserably failed

to establish that the requirements under Order 41 Rule 27 of C.P.C., have

been met.

5. The learned counsel for the respondent submitted his written

argument and took me through its contents. He relied on the decision

reported in 2014 (4) CTC 471 (Union of India and others Vs. Vasavi Co-

operative Housing Society Ltd.,) for the proposition that when the plaintiff

seeks declaration of title and possession, she can succeed only on the

strength of her own title and that could be done only by adducing sufficient

evidence to discharge the onus cast on her irrespective of whether the https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1201 of 2008

defendant had proved his case or not. Even if the title set up by the

defendant is found against, in the absence of establishment of the plaintiff's

own title, the plaintiff must be non-suited. He also referred to the decision

reported in AIR 1969 (SC) 1147(M.L.Abdul Jabbar Sahib Vs. H.Venkata

Sastri and sons) for the proposition that scribe cannot be considered as

attesting witness. He called upon this Court to answer the substantial

questions of law against the appellant and dismiss the appeal.

6. I carefully considered the rival contentions and went through the

evidence on record. The first question that I have to consider is whether

Ex.A1 has been proved by the appellant or not. There is no dispute that the

deed of settlement will have to be registered and attested by atleast two

witnesses. Ex.A1 has been registered. The plaintiff however did not

examine any attesting witness. She examined only the scribe. It is trite law

that scribe cannot be considered as attesting witness. Now the question that

falls for consideration is whether the plaintiff can still be said to have

proved Ex.A1. To answer this question, one has to look at Section 68 of

the Indian Evidence Act. Section 68 of Indian Evidence Act is as follows:-

68: Proof of execution of document required by law to be attested:-

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, it there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

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

S.A.(MD)No.1201 of 2008

7. The plaintiff need not call the attesting witness in proof of

execution of Ex.A1, unless its execution is specifically denied. The learned

counsel appearing for the appellant initially submitted that since the

plaintiff's husband has not denied having executed Ex.A1, there is no need

to call his attesting witness in proof of execution of Ex.A1. This contention

is erroneous. It is open to anybody against whom such a document is

projected to deny the execution of the same. Ex.A1 is projected against the

defendant. Now the question that calls for consideration is whether the

defendant had denied the execution of Ex.A1. I went through the written

statement filed by the defendant. The defendant has not denied the

execution of Ex.A1. All that the defendant would plead in the written

statement is that the plaintiff and her husband have conspired together and

fraudulently prepared the document. In other words, the defendant had not

denied the execution of Ex.A1 by Sonaimuthu, husband of the plaintiff.

Since execution of Ex.A1 by Sonaimuthu has not been specifically denied

by the defendant, there was no need for the appellant to examine the

attesting witness to prove its due execution. The first appellate court erred

in holding that execution of Ex.A1 has not been proved in the manner

known to law. I answer the first substantial question of law in favour of the

appellant.

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S.A.(MD)No.1201 of 2008

8. The defence of the defendants is predicated entirely on Ex.B1.

Ex.B1 reads as follows:-

“1987Mk; tUlk; [{d; khjk; 15Mk; Njjp khdhkJiu Nky;fiu 5tJ fpU\;zuh[Guk; njUtpy; ,Uf;Fk; Nyl; rq;F kf;fs; NrhidKj;J> jk;gp mofu;rhkp ,uz;LNgh;fSk; Nrh;e;J gQ;rhaj;jhh;fs; igry;gb fl;Lg;gl;L rk;kjpj;J ,e;j xg;ge;jk; nra;J nfhz;bUf;fpNwhk;.

                                        Ekf;F ghj;jpakhd            khdhkJiu 5tJ thh;L cwh;
                       [d;        fhydpapy;      cs;s       fhyp     kidaplj;ij       gpr;ir    kfd;

NtYTf;F fpiuak; nra;J nfhLj;J fpiua njhifia itj;J ek;kspy; ,uz;lhtJ egUf;F fy;ahzk; nra;Jnfhz;l gbahYk; ehk; ,UtUk; MSf;F xU tPl;by; FbapUe;J tUtjhYk; ek;kspy; jk;gp ghz;bf;F ,d;Dk; fy;ahzk; Mftpy;iy mtDf;F fy;ahzk; MdJk; ek;Kila ,lj;jpy;

                       xU         tPL     fl;b       G>h;j;jp    nra;J        ghz;b       FbapUg;Gf;F
                       tpl;L;f;nfhL;g;gnjd;Wk;           ehk;      fl;Lg;gl;L    rk;kjpj;J      fpuhk

gQ;rhaj;jhh;fs; igry;gbf;Fk; ehk; ,e;j xg;ge;j mf;hpnkz;l;

nra;J nfhz;bUf;fpNwhk;.”

9. If the document is a mere record of antecedent evident, then, it

does not require registration. If on the other hand by virtue of the very

document itself, a right is created, extinguished or limited, then, as per

Section 17(1)(b) of the Registration Act, it would require registration. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1201 of 2008

From a reading of Ex.B1, one can come to the conclusion that only by

virtue of Ex.B1, right was conferred on the defendant. I hold that Ex.B1 is

a compulsorily registrable document as per Section 17(1)(b) of the

Registration Act. The second substantial question of law is answered in

favour of the appellant.

10. As rightly pointed out by the learned counsel appearing for the

respondent, the plaintiff will have to establish her case. It will not be open

to the appellant to pick holes in the defence. Admittedly, the suit property

is a natham property. The case of the defendant is that the property was

occupied by their father and that after his demise, it was divided between

the suit property and the adjacent site which formed a single portion which

was divided between the two brothers namely Sonaimuthu and Alagarsamy.

Sonaimuthu was residing in Door No.104, While Alagarsamy was residing

in Door No.106. The question that arises for consideration is whether the

plaintiff has proved that she is the owner of the suit property also. The

plaintiff traces her title by virtue of Ex.A1 dated 01.12.2003. By the said

document, Sonaimuthu had conveyed the title in respect of the suit property

in favour of the plaintiff. The core question is whether the plaintiff's

husband himself had title over the suit property for executing Ex.A1. In

this regard, the plaintiff had marked Ex.A2 to Ex.A4. Ex.A2 to Ex.A4 are https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1201 of 2008

the property tax receipts issued by the local body. The local body happens

to be a town panchayat. It is governed by the provisions of the Tamil Nadu

District Municipalities Act, 1920. The statutory scheme set out therein

would indicate that the property is assessed only in the name of the owner

of the property. Of-course, any occupier can pay the property tax and

collect the same. The assessment of a land or building is normally in the

name of the owner. In the case on hand, the defendant also has marked

quite a few documents such as Ex.B6 to Ex.B11. A reading of the same

would show that Alagarsamy only remitted the tax. Assessment never

stood in the name of Alagarsamy. Assessment stood only in the name of

Sonaimuthu. Since the assessment made in favour of Sonaimuthu, prima

facie one can come to the conclusion that he is the owner of the suit

property. It is well settled that in a civil suit, the plaintiff needs only to

show that he has a better title than the defendant. The plaintiff need not

establish any absolute title. In the case on hand, by marking Ex.A1 and the

other property tax receipts, the plaintiff has established that she has a far

better title than the defendant. The third substantial question of law is also

answered in favour of the appellant. The impugned judgment and decree

passed by the first appellate court are set aside. The decision of the trial

court is restored.

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S.A.(MD)No.1201 of 2008

11.The appeal is allowed. No costs. Consequently, connected

miscellaneous petition is closed.

01.10.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The District Judge, Sivagangai.

2.The Principal District Munsif Court, Manamadurai.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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

S.A.(MD)No.1201 of 2008

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.1201 of 2008 and M.P.(MD)No.1 of 2010

01.10.2021

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