M.Sam Viswaraja vs M.Sam Livingston
2021 Latest Caselaw 20789 Mad

                                                                               S.A.(MD)No.799 of 2013

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 08.10.2021

                                                        CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.799 of 2013


                   M.Sam Viswaraja                     ... Appellant / Respondent/Cross Appellant/
                                                                          Defendant


                                                        -Vs-


                   M.Sam Livingston           ... Respondent / Appellant / Respondent / Plaintiff


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
                   against the judgment and decree passed in A.S.No.80 of 2006, dated 23.08.2013
                   on the file of the Principal Sub Court, Nagercoil reversing the judgment and
                   decree passed in O.S.No.161 of 2001 dated 03.07.2006 on the file of the Principal
                   District Munsif Court, Nagercoil.
                                        For Appellant          : Mr.V.Meenakshi Sundaram
                                                                  for Mr.D.Nalla Thambi
                                        For Respondent         : Mr.A.V.Arun
                                                                 for Mr.T.Arunan


                                                       JUDGMENT

The defendant in O.S.No.161 of 2001 on the file of the Principal

District Munsif Court, Nagercoil is the appellant in this second appeal. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

2. The respondent herein namely Sam Livingston filed the said suit

seeking the relief of declaration of his title and possession over the suit

property and for consequential permanent injunction restraining the

appellant herein from interfering with the same. The case of the plaintiff /

respondent herein is that the suit property originally belonged to his mother

Asanath Victoria Muthiah. The defendant / appellant is none other than his

younger brother. Asanath Victoria Muthiah executed the settlement deed

dated 14.07.2000 in his favour. Since the plaintiff was employed abroad, he

had to leave India on 04.08.2000. Thereafter, the plaintiff's mother fell

seriously ill. She was admitted in Jeyasekharan Hospital on 30.10.2000.

She was discharged on 10.11.2000. During this period, the defendant

managed to gain access to the mother and by playing fraud, obtained a sale

deed dated 07.11.2000 from her as if the suit property was purchased by

him for consideration from the mother. Earlier also, the defendant by

playing fraud managed to obtain a will deed dated 23.06.2000 from the

mother and the same was duly cancelled by the mother, when she executed

the settlement deed dated 14.07.2000. After the defendant came to know

about the execution of the settlement deed, he filed O.S.No.422 of 2000

against the plaintiff and their mother for permanent injunction. In the said

suit, the mother filed written statement clearly stating that she had cancelled https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

the will deed dated 23.06.2000 and executed the settlement deed dated

14.07.2000. O.S.No.422 of 2000 came to be dismissed on 28.11.2000.

Apprehending trespass by the defendant based on the fraudulent sale deed

dated 07.11.2000, the plaintiff was constrained to file the said suit. The

defendant / appellant herein filed written statement controverting the plaint

averments. Based on the rival pleadings, the trial court framed the

following issues:-

“(i) Whether the plaintiff has got possession as per the settlement deed dated 14.07.2000?

(ii) Whether the settlement deed is valid?

(iii) Whether the sale deed dated 07.11.2000 in favour of the defendant is valid?

(iv) Who is in possession of the suit property?

(v) To what relief the plaintiff is entitled for ?

(vi) To what alternative relief, the plaintiff is entitled to?”

3. On the side of the plaintiff, his power agent was examined as

P.W.1. Two other witnesses were examined on the side of the plaintiff.

Ex.A1 to Ex.A23 were marked. The defendant examined himself as D.W.1.

Six other witnesses were examined on his side. Ex.B1 to Ex.B27 were

marked. Court exhibits 1 to 3 were also marked. After a consideration of

the evidence on record, the trial court dismissed the suit by judgment and

decree dated 03.07.2006. Aggrieved by the same, the plaintiff filed A.S.No.

80 of 2006 before the Principal Sub Court, Nagercoil. The defendant also https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

filed cross appeal. The first appellate court by the impugned judgment and

decree dated 23.08.2013 reversed the decision of the trial court and allowed

the appeal and decreed the suit, while the cross appeal suffered dismissal.

Aggrieved by the same, this second appeal came to be filed. The second

appeal was admitted on the following substantial questions of law:-

“1. Whether the first appellate court is correct in accepting Ex.A1(Gift) merely on the basis of the oral evidence of P.W.1 and P.W.2 more particularly P.W.1 (Power of attorney of plaintiff) cannot depose about the fact regarding acceptance of gift within the knowledge of the plaintiff who kept himself away from the witness box and thus the judgment and decree of the first appellate court warrants interference under Section 100 of Civil Procedure Code?

2. When it is proved from oral evidence of P.W.1 and P.W.2 that the plaintiff and his wife went back to abroad on August, 2000 and the gift Ex.A1 is not acted upon and thereafter late.Asanath Victoria (mother of both parties) execute Ex.B10 registered cancellation deed and conveyed the suit property to this appellant under Ex.B11 sale deed, whether the first appellate court is correct in dismissing the cross appeal and thus the judgment and decree of the first appellate court warrants interference under Section 100 of Civil Procedure Code?

3. when the trial court disbelieved the evidence of attesting witness to Ex.A1 namely P.W.1 and P.W.2 regarding the point of registration and drawn adverse inference against the plaintiff and rejected the claim of the plaintiff, whether the first appellate court is correct in upholding Ex.A1 gift by overlooking the contra evidence of P.W.1 and P.W.2 on record and thus the judgment and decree of the first appellate court in A.S.No.80 of 2006 and Cross Appeal warrants interference before this Court under Section 100 of Civil Procedure Code? ” https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

4. The learned counsel appearing 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 set aside the impugned judgment and decree and sustain Ex.B11

executed in his favour.

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

submitted that the impugned judgment and decree do not call for any

interference. The learned counsel for the respondent submitted that there is

no dispute that the suit property originally belonged to their mother Asanath

Victoria Muthiah. The execution of the settlement deed dated 14.07.2000

(Ex.A1) is proved by the defendant himself. According to the defendant, by

executing Ex.B11 dated 07.11.2000, the settlement deed has been cancelled.

The plaintiff therefore need not adduce any further proof to show the

execution of Ex.A1 settlement deed in his favour. He pointed out that it is

too well settled that a deed of settlement cannot be unilaterally cancelled by

the executant. He also would point out that since the plaintiff was

employed abroad, he had to leave India on 04.08.2000. Immediately,

thereafter, the defendant filed O.S.No.422 of 2000 against their mother and

the plaintiff. The written statement filed by the mother was marked as https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

Ex.A6. On a perusal of the contents of Ex.A6, one can come to the

conclusion that Asanath Victoria Muthiah had not only affirmed the

execution of the settlement deed Ex.A1, but also the fact that she had

cancelled the will deed dated 23.06.2000.

6. The learned counsel appearing for the respondent submitted that

while it is true that the plaintiff did not enter the witness box, in the facts

and circumstance of the case, it would not make any difference. He pointed

out that P.W.1 was not only the power agent of the plaintiff but also one of

the attestors of Ex.A1 and also a close relative. Therefore, he is very much

competent to depose on behalf of the plaintiff. P.W.2-Thangaiya is a

another witness of Ex.A1 and thus, the plaintiff had more than proved his

case by examining these two witnesses. He submitted that the question of

drawing adverse inference against the plaintiff because he kept away from

the witness box will not arise at all in this case. The learned counsel also

submitted that immediately after execution of Ex.A1, the plaintiff took steps

to have the revenue records changed in his favour. This has been duly

proved by marking Ex.A8. Ex.A8 is the communication sent by the

jurisdictional Tahsidhar calling the plaintiff for effecting mutation. The

mutation of revenue records of-course was made little later. But then, steps

were taken even during the life time of their mother. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

7. The learned counsel for the respondent submitted that the

execution of Ex.B11 is riddled with several suspicious circumstances. He

pointed out that originally, the sale deed was not at all produced before the

Court. Only the certified copy was marked. The signature of Asanath

Victoria Muthiah would reflect the full name. But in Ex.B11, she does not

appear to have signed in her usual manner. Admittedly, Ex.B11 came into

existence, when the mother was seriously ill and was admitted in the

Hospital. She died some 10 days later. The claim that the defendant

purchased the property for valuable consideration after paying a certain sum

of money to the mother is shockingly improbable.

8. The learned counsel also took me through the court exhibits

marked in this regard. He pointed out that in Ex.B11, there are two many

interlineations. He also commented on the fact that the registering official

who appears to have played a major role in registering Ex.B11, was later

thrown out of service for lack of integrity. The learned counsel submitted

that the first appellate court re-appreciated the entire evidence on record

and gave a finding that execution of Ex.A1 has been duly established, while

the defendant failed to prove the due execution of Ex.B11. Such findings of

fact properly arrived at by the first appellate court need not be interfered by https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

this Court, while exercising jurisdiction under Section 100 of C.P.C. The

learned counsel for the respondent relied on the decisions reported in

(2013) 2 SCC 606 (Gian Chand and brothers Vs. Rattan Lal @ Rattan

Singh), 2014 (4) CTC 572 (Renikuntla Rajamma (D) by LRs Vs.

K.Sarwanamma) and 2009 (5) CTC 558 (S.Ganesan Vs. Bharathirajan).

He submitted that no substantial question of law arises for consideration.

The learned counsel also filed a detailed notes of argument and took me

through its contents.

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

evidence on record. The appellant and the respondent are brothers. The

suit property belonged to their mother Asanath Victoria Muthiah. Asanath

Victoria Muthiah had obviously executed a will deed dated 23.06.2000

bequeathing 32 cents of land in favour of the plaintiff and 28 cents in

favour of the defendant. This Will was later cancelled and Ex.A1-

settlement deed dated 14.07.2000 came into existence. Under Ex.A1, the

property had been settled in its entirety in favour of the plaintiff.

Thereafter, under Ex.B11-sale deed dated 07.11.2000, the settlement deed

was cancelled and the property was sold for valuable consideration in

favour of the defendant. The trial court after a consideration of the

evidence on record disbelieved the settlement deed as well as the sale deed https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

and held that both the parties are entitled to the suit property by way of

inheritance. The plaintiff filed regular appeal before the first appellate

court, while the defendant filed cross appeal. The first appellate court

dismissed the cross appeal but allowed the plaintiff's appeal by holding that

the execution of settlement deed had been duly established.

10. Let me first consider if the defendant had succeeded in

establishing Ex.B11. As rightly pointed out by the learned counsel

appearing for the respondent, the circumstances that surrounded the

execution of Ex.B11 are highly suspicious. Admittedly, Asanath Victoria

Muthiah mother of the parties herein was seriously ill and was admitted in

the Hospital. It is true that even in such circumstances, Wills are executed.

But I find it impossible to believe that a person lying in death bed would

execute a sale deed in favour of one of the sons. The original sale deed

was not produced before the court below.

11. I carefully went through the contents of the court exhibits.

Registration itself appears to have taken place only in the Hospital. There

are two many interlineations. It is obvious that the executant was not even

in a position to put her signature. It is highly improbable that the executant

would have received sale consideration from the defendant and executed https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

Ex.B11. For the reasons set out by the courts below, I hold that the

execution of Ex.B11 has not at all been established.

12. The next question that calls for determination is whether

execution of Ex.A1 had been established. The suit itself has been filed

based on Ex.A1-settlement deed dated 14.07.2000. The defendant had filed

a detailed written statement controverting the plaint averments. In

paragraph No.8, the defendant had pleaded that the mother had executed a

Will dated 23.06.2000 and that the same has been registered. Under the

said will, the mother had bequeathed 32 cents to the plaintiff and 28 cents

to the defendant. The defendant would of-course make a further claim that

on the same day, the mother entered into an agreement with him and handed

over physical possession of the suit property based on which he also made

improvements. The defendant in paragraph No.5 had pleaded that

07.07.2000, the plaintiff and his wife came to Nagercoil and forcibly took

their mother to the plaintiff's house and that after 07.07.200, she was in the

custody of the plaintiff and that the defendant and others were not even

allowed to see the mother who was at the house of the plaintiff.

The categorical assertion of the defendant was that their mother was in the

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S.A.(MD)No.799 of 2013

plaintiff's house from 07.07.2000 to 04.08.2000. He further alleged that

during this period, the mother was physically weak and taking advantage of

the situation, the plaintiff brainwashed the mother and exerted undue

influence on her. It has been further alleged that the plaintiff played fraud

and that is how, Ex.A1 was obtained.

13. Though the learned counsel for the respondent would contend

that the burden to prove the allegations rests only on the defendant by

relying on the decision reported in (2013) 2 SCC 606 (Gian Chand and

brothers Vs. Rattan Lal @ Rattan Singh), I must hold that the plaintiff

ought to have deposed to deny the allegations made against him. The

defendant got into the witness box and reiterated all the allegations made

against the plaintiff in this regard. But the plaintiff stayed away from the

witness box. Of-course, the learned counsel for the respondent would state

that the plaintiff was abroad and that therefore he was not in a position to

participate in the trial court physically. I am not convinced by this

explanation. It was the plaintiff who filed the suit in the year 2001. The

suit itself came to be disposed of only on 03.07.2006. Definitely, the

plaintiff would have visited India on quite a few occasions during this

period. The examination of power agent of the plaintiff as P.W.1 was

absolutely insufficient to deny the allegations made by the defendant in his https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

written statement. That the mother Asanath Victoria Muthiah was a pawn in

the hands of her sons is obvious and evident. She was admitted in the

Hospital on 18.06.2000. A registered Will dated 23.06.2000 came into

existence. She was discharged on 03.07.2000. On 14.07.2000, a settlement

deed was executed favouring the plaintiff. Thereafter, the mother once

again fell ill and the sale deed dated 07.11.2000 was executed in favour of

the defendant.

14. From these circumstances, one can safely come to the conclusion

that the mother was made to write documents as per the desires of the

persons in whose custody she was placed. When she was in the custody of

the defendant, she executed the Will and the sale deed. When she was in

the custody of the plaintiff, she executed the settlement deed-Ex.A1. That

is why, the trial court which also had the benefit of seeing the witnesses in

person refused to believe either of the documents. Ex.A1 was propounded

only by the plaintiff. Therefore, he had the duty and burden to rebut all the

suspicious circumstances surrounding its execution.

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

appellant, one of the attesting witness in Ex.A1 is Thangaiya. Thangaiya is

none other than the brother-in-law of the executant. It had been established https://www.mhc.tn.gov.in/judis

S.A.(MD)No.799 of 2013

in the cross examination that all was not well between Asanath Victoria

Muthiah and her husband. Thangaiya P.W.2 had filed a case against

Asanath Victoria Muthiah by acting as the power agent of her husband. It

was further suggested that Thangaiya was the true reason for

misunderstanding between the couple. It is therefore inconceivable that

Asanath Victoria Muthiah could have summoned such a person be an

attesting witness.

16. There are two many discrepancies between the testimonies of

P.W.1 and P.W.2. The trial court rightly held that Ex.A1 has not at all been

proved. The substantial questions of law are therefore answered in favour

of the appellant. The impugned judgment and decree passed by the first

appellate court is set aside. But the judgment and decree passed by the trial

court cannot be restored as such. Even according to the appellant, the will

dated 23.06.2000 was actually executed only by the mother. He does not

challenge its contents. Therefore, instead of restoring the decision of the

trial court as such, there shall be a preliminary decree for partition in terms

of the Will dated 23.06.2000. The plaintiff will take 32 cents of land in the

suit property, while the defendant will take 28 cents of land therein.

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S.A.(MD)No.799 of 2013

17. The second appeal is partly allowed. No costs.

18. At this stage, it is brought to the notice of the Court that the

appellant had alienated 7 cents along with a house in favour of one Saroja

and Rajathi vide sale deed dated 11.02.2002. It is seen that the suit was

filed in 2001 itself. In other words, the alienation made by the appellant

had taken place after the filing of the suit. It is further stated by the learned

counsel for the respondent that the subject matter of alienation is a part of

the property that has now been allotted to the respondent. I make it clear

that the alienation made by the appellant is subject to the outcome of this

appeal. I refrain from saying anything more or even invalidating the sale

deed only for the reason that the purchaser/Saroja is not before this Court.

It is open to the respondent herein to file a certified copy of this judgment

before the appropriate Court and in appropriate proceedings for enforcing

the rights conferred on him under this judgment.

08.10.2021

Internet : Yes/No Index : Yes/No rmi / ias

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S.A.(MD)No.799 of 2013

To

1.The Principal Sub Court, Nagercoil.

2.The Principal District Munsif Court, Nagercoil.

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.799 of 2013

G.R.SWAMINATHAN.J., rmi/ias

Judgment made in S.A.(MD)No.799 of 2013

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

S.A.(MD)No.799 of 2013

08.10.2021

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