Sethuraman vs Rajamarthandan (Died) ... ...
2021 Latest Caselaw 18498 Mad

                                                                             S.A.No.1639 of 2001

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 09.09.2021

                                                    CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.No.1639 of 2001

                   1.Sethuraman

                   2.Karikalan

                   3.Markandan                     ... Defendants / Respondents / Appellants

                                                    -Vs-


                   Rajamarthandan (Died)              ... Plaintiff / Appellant / Respondent
                   2.Saraswathi
                   3.Thanajayan
                   4.Sivagami
                      (R2 to R4 are brought on record
                       as Lrs of the deceased sole respondent
                      vide order dated 19.02.2021 made
                        in C.M.P.(MD)Nos.9218 and 9219 of 2017)
                   5.A.Ramesh
                      (R5 is impleaded vide order dated 09.08.2021
                        made in C.M.P(MD)No.3496 of 2021)
                                                                           ... Respondents
                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decreetal order passed by the Sub-Judge,
                   Devakottai in A.S.No.43 of 1999, dated 06.09.2000, reversing judgment
                   and decreetal order passed by the District Munsif, Devakkottai, in O.S.No.
                   72 of 1998, dated 26.08.1999.
https://www.mhc.tn.gov.in/judis/


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                                                                              S.A.No.1639 of 2001



                                        For Appellants    : Mr.D.Malaichamy
                                        For Respondents   : Mr.S.Manikandan


                                                   JUDGMENT

The defendants in O.S.No.72 of 1998 on the file of the District

Munsif Court, Devakottai, are the appellants in this appeal.

2.The suit was filed by the respondent herein Rajamarthandan

seeking the relief of declaration that the suit properties belonged to him.

He also sought the consequential relief of permanent injunction restraining

the defendants from interfering with the peaceful possession and enjoyment

of the suit properties. The appellants herein filed written statement

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

trial Court framed the necessary issues. The plaintiff examined himself as

P.W.1. Two other witnesses were also examined on his side. Ex.A1 to

Ex.A25 were marked. The first defendant Sethuraman examined himself as

D.W.1. Two other witnesses were examined on his side. Ex.B1 to Ex.B5

were marked. After a consideration of the evidence on record, the trial

court by judgment and decree dated 26.08.1999 dismissed the suit. The

plaintiff filed A.S.No.43 of 1999 before the Sub Court, Devakottai. The

first appellate court by the impugned judgment and decree dated 06.09.2000 https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

set aside the decision of the trial court and allowed the appeal and decreed

the suit as prayed for. Aggrieved by the same, the second appeal came to be

filed.

3. The second appeal was admitted on the following substantial

questions of law:-

(a) Whether an earlier Will of the testator prevail over the

subsequent and last Will, merely because the earlier Will is registered?

(b) For a Will to be effective, is registration a must?

(c) Whether reasons must be set out for revoking an earlier Will

whilst executing subsequent Will?

(d) Can issuance of separate tax receipt conclusively prove

partition of joint family properties?

(e) Can change of name in joint patta establish possession over

specific properties?

(f) Can separate enjoyment of joint family properties change the

character of the properties as individual properties?

(g) Without plaintiff discharging his onus of proof of fact

asserted by him, will it be legal to ask the defendant to prove his

assertion?

(h) Is not the plaintiff stand or fail on his own pleaded case?

4. Heard the learned counsel on either side.

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S.A.No.1639 of 2001

5. The learned counsel appearing for the defendants / appellants

pointed out that the plaintiff had laid the suit on the strength of Ex.A1 dated

08.10.1993 Will executed by Chidambaram Ambalam. The said

Chidambaram Ambalam is none other than the younger brother of the first

appellant Sethuraman. The suit properties are not the separate properties of

Chidambaram Ambalam. They are properties of the joint family comprising

father Narasappan and his two sons namely Chidambaram Ambalam and

Sethuraman. The learned counsel appearing for the appellants submitted

that the execution of Ex.A1 is shrouded in suspicious circumstances. He

would point out that the deceased Chidambaram Ambalam did not have any

children. The plaintiff Rajamarthandan was the nephew of Chidambaram's

wife. Though the Will is dated 08.10.1993, it appears to have been

presented only on 03.11.1993 and endorsement was made on 04.11.1993

and registered on 05.11.1993. There is sufficient evidence on record to

show that on 05.11.1993 Chidambaram was admitted in Wellington

Hospital at Chennai. This is proved by Ex.A16 to Ex.A25 marked by the

plaintiff himself. Though in Ex.A1, it is claimed that the plaintiff

Rajamarthandan was taking care of him, it was actually not a fact.

Rajamarthandam was employed in Chidambaram Annamalai University

right from 1983 onwards. The appellants would go to the extent of https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

contending that the plaintiff was not even aware of the demise of

Chidambaram Ambalam and only after getting intimation, he attended

funeral and other ceremonies. According to the appellants, in any event,

Ex.A1 cannot be pressed into service. On 05.10.1993 under Ex.B2,

Chidambaram had bequeathed his properties in favour of D2 and D3 who

are the sons of the first defendant Sethuraman. He would point out that the

trial Court had carefully appreciated the entire evidence on record and

without any justification and assigning proper reasons, the first appellate

court had categorically set aside the judgment of the trial Court and decreed

the suit. He also would point out that the suit properties are joint family

properties and that they are not the separate properties of Chidambaram

Ambalam.

6. Per contra, the learned counsel appearing for the respondent /

plaintiff submitted that the impugned judgment and decree passed by the

first appellate court do not call for any interference. He would point out

that a mere perusal of the testimony of D.W.1-Sethuraman would show that

even during the life time of Narasappan/father of Chidambaram and

Sethuraman, there was a division of properties. Mutation was effected in

the revenue records. Therefore, the suit properties are very much the

separate properties of Chidambaram Ambalam. Ex.A1 is a registered Will.

The plaintiff was not a stranger to Chidambaram. He was a close relative https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

being Chidambaram's wife's nephew. Therefore, Chidambaram executed a

registered Will in his favour. He would repel the contention that the

execution of Ex.B1 is shrouded in suspicious circumstances. He would

point out that the medical records were marked by the plaintiff himself. If

really, these medical records would cast doubt on the mental condition of

testator/Chidambaram, the plaintiff would not have marked those

documents which were in his custody and possession. The learned counsel

took me through the decision of the first appellate court and strongly

contended that since the suit properties were the separate properties of

Chidambaram Ambalam and since the execution of Ex.A1 has been duly

established, the suit was rightly decreed and that the second appeal deserves

to be dismissed.

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

evidence on record. The first question that calls for consideration is

whether the execution of Ex.A1 had been proved and whether Ex.B2 was

the last Will and testament of Chidambaram Ambalam. Though contentions

were advanced on the side of the appellants in this regard, in my view, this

is a pure question of fact. The first appellate court has given a categorical

finding that Ex.A1 has been proved. It is relevant to note here that Ex.A1

propounded by the plaintiff is a registered document. On the other hand,

Ex.B2 dated 05.10.1993 is an un-registered document. The first appellate https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

court has given convincing reasons to show that Ex.B2 must have been

fabricated only with an intention to overcome Ex.A1. This being a pure

factual finding and since it has not been shown to be perverse, I sustain the

same. The next question that arises for consideration is regarding the

character of the suit properties.

8. The learned counsel for the appellants would contend that the suit

properties are the joint family properties in which Chidambaram Ambalam

was a member. The learned counsel for the plaintiff on the other hand

would contend that they might have had the character of joint family

property originally. But then, they were exclusively allotted to

Chidambaram Ambalam in a partition among the members of the family.

Though I went through the contents of the plaint, the plaintiff has nowhere

pleaded that partition took place among the members of the joint family

comprising Narasappan and his two sons namely Chidambaram Ambalam

and Sethuraman. The plaintiff is rather falling back on the answers given

by Sethuraman in the course of his cross examination. As rightly pointed

out by the learned counsel appearing for the appellants, the appellants had

nowhere admitted that there was any oral partition among the members of

the joint family.

9. The specific stand of the defendants was that after Chidambaram

Ambalam got married in the year 1958, he wanted to live separately and https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

that for convenient enjoyment, the properties came to be allotted to

Chidambaram Ambalam. The specific stand of the defendants was that the

properties were to be later partitioned. The plaintiff being only a nephew of

Chidambaram Ambalam's wife, he could not be expected to adduce any

evidence in that regard. There is absolutely no evidence to show that

partition had taken place among the members of the joint family. The

reliance placed by the plaintiff on the admission made by D.W.1 in the

course of cross examination will not also advance his case. The stand of the

defendants was that the properties were enjoyed separately only for

convenient enjoyment and that no partition had taken place. It is not the

case of the plaintiff that these suit items were purchased by Chidambaram

Ambalam in his name through any sale deed. No such document has been

marked before the Court. Except the revenue records, there is no other

piece of evidence. Therefore, I sustain the contention of the learned counsel

appearing for the appellants that the suit properties are the joint family

properties and that, they were never divided. Merely because the suit items

stood in the name of Chidambaram Ambalam, that will not make them his

separate properties.

10. As I have already upheld the validity of Ex.A1-Will, the plaintiff

though may not be entitled to declaration that they are his exclusive https://www.mhc.tn.gov.in/judis/

S.A.No.1639 of 2001

properties, he would still be entitled to a preliminary decree declaring his

1/2 share in all the suit items. As rightly pointed out by the learned counsel

appearing for the respondents and as conceded by the defendants

themselves, this property was originally in the enjoyment of Chidambaram

Ambalam. Following his demise, the revenue records were changed in the

name of the plaintiff. Therefore, till final decree separating the shares by

metes and bounds is passed, the defendants will not be entitled to interfere

with the respondent's possession and enjoyment of the suit properties. In

other words, the status quo that is obtaining as on date will hold good till

the final decree is passed. I am also satisfied that the suit properties were in

the possession and enjoyment of the plaintiff Rajamarthandan.

11. Therefore, the substantial questions of law are answered

accordingly. Preliminary decree is passed declaring the plaintiff's 1/2 share

in the suit properties. The second appeal is disposed of accordingly. No

costs.

09.09.2021

Internet : Yes/No Index : Yes/No rmi

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

S.A.No.1639 of 2001

G.R.SWAMINATHAN.J.,

rmi

To

1.The Sub-Judge, Devakottai.

2.The District Munsif, Devakkottai.

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

Judgment made in S.A.No.1639 of 2001

09.09.2021

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