Madras High Court
A.Sivakumar vs A.Balasubramani on 5 October, 2021
1
]BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 5.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.No.5 of 2021
A.Sivakumar Appellant
vs.
1. A.Balasubramani
2. A.Kasthuri
3. A.Indira Gandhi Respondents
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 23.9.2019 passed in A.S.No.48 of 2018
on the file of the Principal District Judge, Dindigul confirming the
Judgment and decree dated 16.2.2018 passed in O.S.No.370 of 2014
on the file of the Additional Subordinate Judge, Dindigul.
For Appellant : Mr.M.Gnanagurunathan
For R1 : Mr.N.Rahamadullah
For RR2 and R3 : No appearance
JUDGMENT
The present Second Appeal has been filed by the plaintiff having
aggrieved over the concurrent findings of the courts below in declining
to grant the relief of partition and separate possession, declaration and
injunction sought for by him.
2. For the sake of convenience, the parties are referred to as per
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their litigative status in the suit.
3. The brief facts of the case are as under:-
The plaintiff filed the suit seeking for
(i) a declaration that the settlement deed dated 10.4.1991
registered in 371/91 on the file of the Sub Registrar, Natham as a
sham and nominal document and not biding upon the plaintiff;
(ii) to pass a preliminary decree for partition and separate
possession of ¼ share to the plaintiff in the suit schedule property;
(iii) to pass final decree for separate possession and allot the
respective share in the suit schedule property by metes and bounds;
and
(iv) to grant permanent injunction restraining the first defendant
and any one claiming through him from in any way in any manner
dealing with or encumbering, alienating the suit property.
4. The plaintiff and defendants are brothers and sisters. Their
father late Ayyachami was allotted the suit property in Natham
Scheme by the Government in which initially, a house with thatched
roof was constructed and electricity connection was obtained. On
16.10.1994, the said Ayyachami died. The mother of the plaintiff and
the defendants died on 20.11.2013. After the death of their father,
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the property continued to be in joint possession of the plaintiff and the
defendants. On 26.8.2014, the plaintiff came to know that his brother,
the first defendant had submitted an application for changing the
electricity connection in his name and thereby the plaintiff had given
an objection on the same day. Only when he was called for an enquiry,
the plaintiff came to know that his father had settled the property in
the name of the first defendant on 10.4.1991. Thereafter, the had
applied for copy of the deed dated dated 10.4.1991 and came to know
that within a short span of time of executing the settlement deed, his
father died on 16.10.1994. The father of the plaintiff was very sick
and not in a sound and disposing state of mind during the relevant
period, particularly at the time of the alleged execution of the
settlement deed and thereby contended that the settlement could not
be genuine. The father and mother of the plaintiff and defendants
chose to reside with the plaintiff and the first defendant . The plaintiff
was working as driver in Dheeran Chinnamalai Transport Corporation
from the year 1993 and thereafter, he left the job and went abroad in
2008 and returned to India only during the year 2011 and thereafter,
he concentrated on family affairs. The first defendant, as elder
brother, has utilised the position of the father and got the settlement
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deed in his name. Since the suit property was given to the father of
the plaintiff under the Natham Scheme, the plaintiff was entitled to ¼
share and that since the defendant did not come forward for partition
of the property and attempted to alienate the same, the plaintiff had
filed the suit for declaration and injunction.
5. The first defendant filed written statement admitting the
relationship between the parties and the allotment in his favour, but,
denying the allegations of the plaintiff as under:-
It is not correct to say that the father Ayyachamy died intestate.
It is also not correct to say that the suit property was in joint
possession of the plaintiff and the defendants. It is incorrect to say
that the plaintiff came to know about the settlement dated 10.4.1991
only on 26.8.2014 when the first defendant had applied for transfer of
electricity connection. The said Ayyachamy was in a sound and
disposing state of mind at the time of execution of the settlement deed
and in fact, he died after three years from the date of execution of the
settlement deed. From the date of settlement, the first defendant has
been in exclusive possession of the suit property and the plaintiff is not
entitled to any share in the suit property and at no point of time, it was
treated as joint family property.
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6. The third defendant filed written statement adopted by second
defendant and as per the third defendant, the patta to the suit
property was given in the name of their father by the Settlement
Tahsildar only as Kartha of the joint family and the property belongs
to all the heirs and they are entitled to joint possession. It is the
further case of the third defendant that the first defendant cannot
claim exclusive title on the basis of the settlement deed said to have
been executed by their father and as eldest member of the family, the
first defendant ought to have obtained patta in the name of all the
legal heirs and the first defendant has no locus standi to seek for
change of name in the records of the Electricity Board the on the basis
of the settlement deed and that the daughters of Ayyachamy have
right in the suit property as his heirs and that defendants 2 and are
entitled to 2/4 share in the suit properties.
7. Based on the pleadings, the Trial Court framed the following
issues:-
(i)Whether the first defendant has got title by settlement deed
dated 10.4.1991?
(ii)Whether such settlement deed is true, valid and conveys title to
the first defendant?
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(iii)Whether the plaintiff is entitled to partition and separate
possession of ¼ share in the suit property?
(iv)Whether the plaintiff is entitled to seek declaration and
settlement as null and void and permanent injunction against the
first defendant as prayed for?
8. During trial, on the side of the plaintiff, PW1 was examined
and Exs.A1 to A9 were marked. The tenant, who was running a
laundry shop was examined as PW2. On the side of the first
defendant, DW1 was examined and Exs.B1 to B7 were marked. After
completion of the trial and after perusal of the oral and documentary
evidence and upon hearing the argument, the Trial Court dismissed
the suit against which, the plaintiff preferred the first appeal.
9 The first appellate court framed the following points for
determination:-
"The settlement deed dated 10.4.1991 is valid and acted upon
and the appeal has to be allowed."
10. The Appellate Court, finding that the plaintiff himself had
admitted in his pleadings that the suit property is the only property
available and that in his proof affidavit, he had stated that the suit
property is a joint family property and that patta was issued in favour
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of their father as Kartha of the joint family held that that the plaintiff
had taken inconsistent pleas and the Appellate Court also held that a
perusal of Ex.B1 shows that the suit properties are Natham Poramboke
assigned in favor of the father Ayyachamy and it is only separate
property of Ayyachamy.
11. Further, both the courts below have held that that the
plaintiffs had not proved that their father was not with good health
and that he was not in a sound and disposing state of mind at the time
of partition. The Appellate Court also found that the father of the
plaintiff and the defendants had executed the settlement dated
10.4.1991, Ex.A2/B2 in favour of the first defendant and that he had
mutated the property tax in his name on 18.4.1991 under Ex.B4 and
he had been paying property tax in his name under Ex.P5 and and he
had constructed the building without any disturbance and that the
plaintiff had claimed right only after 20 years after noticing the
improvements made in the suit property which is unacceptable. The
appellate court also found that the plaintiff was aware of the
settlement and he was aware of the subsequent acts and thereby
concurred with the finding of the Trial Court and dismissed the appeal
against which the second appeal has been filed.
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12. At the time of admission, this court formulated the following
substantial questions of law:-
"(i) Whether the courts below were right in
concluding that the first defendant had proved
the execution of the settlement deed (Ex.A2) in
the absence of examination of any of the
attestors in in terms of Section 68 of the Indian
Evidence Act?
(ii) Whether the courts below were right in
concluding that the settlement deed stood proved
and that the plaintiff's father executed the same
without any influence by the first defendant?"
13. Learned counsel for the appellant would submit that the suit
property was allotted in favour of the father of the plaintiff and the
defendants by Ex.A1 and one of the conditions in Ex.A1 is that the
property should not be alienated within a period of 10 years from the
date of assignment. He would further submit that the suit schedule
property was assigned in favour of the father of the plaintiff only as
Kartha of the family and not individually, however, both the courts
below have failed to take into consideration that aspect and that the
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plaintiff has also got right over the property and the defendants had
failed to prove Ex.B2 settlement deed as contemplated under Section
68 to 71 of the Indian Evidence Act and thereby the judgment and
decree of the courts below have to be set aside.
14. Per contra, the learned counsel for the first respondent/first
defendant would submit that the plaintiff had examined himself as PW1
and marked Exs.A1 to A9 and it is the specific plea of the plaintiff in
the plaint that the suit properties are self-acquired properties of the
plaintiff and the defendants and when such a pleading has been taken
in the plaint, the plaintiff cannot go beyond the plea and take a
different stand stating that the property was assigned to their father as
Kartha of the joint family. He would further submit that both the
courts below, having found that the plaintiff had taken inconsistent
plea, held that the suit property is only self-acquired property of their
father Ayyachamy and further, the appellant/plaintiff has not let in any
evidence to prove that their father was not in a fit and sound state of
mind at the time of execution of the settlement deed.
15. The learned counsel for the first respondent would further
submit that Ex.B2 is a registered settlement deed. Ex.B2, being a
registered Settlement Deed and not a Will, there is no requirement for
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proving it by examining the attestor as contemplated under Section 68
of the Indian Evidence Act.
16. While it is the case of the plaintiff/appellant that the suit
property is the joint family property as it was allotted in the name of
his father as kartha of the joint family, it is claimed by the first
defendant that it was settled in his favour under Ex.B2. The allotment
of the suit property is proved by documentary evidence and it is, of
course, admitted by the first defendant, whereas, the concept of
allotment as kartha of the joint family is beyond imagination. Mere
allotment of a vacant site in one's favour will not make it as joint
family. It has to be proved that it was purchased through joint family
nucleus.
17. Both the courts below, finding on one hand that the burden
is on the plaintiff to prove that the suit property is the joint family
property and he had not discharged such a burden and on the other
hand that the plaintiff has not let in any evidence to disprove the
execution of the settlement deed, had dismissed the suit.
18. Proving of settlement deed is taken as a device to divert the
issue and claim that the suit property is a joint family property. It is
clear that the plaintiff has not discharged his burden to prove that the
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suit property was purchased by his father through the joint family
nucleus. Further, unlike the Will, the Settlement Deed need not be
proved by examining any attestor to the document.
19. It is relevant to refer to Section 68 of the Indian Evidence
Act, which reads as under:-
"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, if there be an attesting witness alive,
and subject to the process of the Court and
capable of giving evidence:
[Provided that it shall not be necessary to
call an attesting witness in proof of the execution
of any document, not being a will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports
to have been executed is specifically denied.]"
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20. The proviso to Section 68 of the Act referred to above makes
it clear that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a will, which has
been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically denied. The
execution of the settlement deed has not been disproved by the
plaintiff and therefore, there is no question of calling for an attestor to
the settlement deed to prove the same by the beneficiary viz., the first
defendant.
Therefore, this court is of the view that the courts below have
rightly dismissed the suit. The substantial questions of law are
answered accordingly. In the result, the second appeal is dismissed.
No costs.
5.10.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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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To
1. Principal District Judge,
Dindigul.
2. Additional Subordinate Judge,
Dindigul.
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A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.No.5 of 2021
5.10.2021.
https://www.mhc.tn.gov.in/judis/
