Madras High Court
S.Sukumaran vs S.Eswaran on 24 February, 2022
C.M.A.No.2647 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
C.M.A.No.2647 of 2018
and
C.M.P.No.19986 of 2018
S.Sukumaran .. Appellant
vs.
S.Eswaran .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 104 of the
Civil Procedure Code praying to set aside the fair and decreetal order dated
09.10.2018 in I.A.No.476 of 2017 in O.S.No.303 of 2016 on the file of the III
Additional District Court, Salem.
For Appellant : Ms.M.N.Preeti Rajan
for Mr.K.Selvaraj
For Respondent : Ms.V.Janaranjani
for Mr.N.Damodaran
JUDGMENT
The plaintiff in O.S.No.303 of 2016 pending on the file of III
Additional District Court, Salem is the appellant herein.
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C.M.A.No.2647 of 2018
2. The suit in O.S.No.303 of 2016 has been filed seeking partition
and separate possession of 1/3rd undivided share in the suit property and also
to pass final decree in accordance with the preliminary decree granted.
3. The property is situated at Salem and included land and building
totally measuring an extent of 1710 sq.ft at Thathakapatty, Salem in
T.S.Nos.2223 and 2226. In the plaint, it was claimed that Sulochana, the
mother of the plaintiff, who was also the mother of the defendants, had
purchased the suit property by way of a registered sale deed dated
22.04.1964. She had then put up a small house in the said property. She died
intestate on 05.03.2009, leaving behind the plaintiff/son, first defendant/son
and the second defendant/daughter as her legal heirs. She had also left behind
her husband T.Sambalingam. The said father T.Sambalingam died intestate
on 30.07.2015. Therefore, claiming undivided 1/3rd share in the suit property,
the suit had been instituted for partition and separate possession. It was
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C.M.A.No.2647 of 2018
claimed that a notice had been issued but since the defendants did not come
forward to partition the property, necessity arose to institute the suit.
4. Written statement had been filed by the first defendant, wherein
he claimed that the mother Sulochana had bequeathed the suit property to her
husband T.Sambalingam by an unregistered Will dated 27.07.2007.
Therefore, after her death the father got the property in entirety. It was further
stated that he had also executed a Will on 06.04.2014 in favour of the first
defendant/respondent herein. It was therefore stated that a suit for partition is
not maintainable and has to be dismissed.
5. Thereafter, the plaintiff issued a notice, calling upon the counsel
for the first defendant to produce the Will dated 27.07.2007 executed by the
mother Sulochana and the Will dated 06.04.2014 executed by the father
T.Sambalingam for inspection. Since there was no response, though the Court
had directed production of the documents, the plaintiff had filed an
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C.M.A.No.2647 of 2018
application under Order XI Rule 18 of C.P.C., calling upon the
respondent/first defendant to offer the said documents for inspection. The
documents were the two Wills mentioned above. Again the learned trial
Judge directed production of documents. The application was adjourned for
nearly about 2 years and finally on 21.11.2017, the following order was
passed:
“ 21.11.2017
To produce documents
Documents not produced.
Respondent called absent.
No representation. Petition Closed.”
6. This order has to be necessarily interfered with. A petition
cannot be just closed without indicating what that actually means. Thereafter,
the petitioner herein/plaintiff filed a further application in I.A.No.476 of 2017
under Order XI Rule 21 of C.P.C. seeking to strike out the defense of the first
defendant, since the Wills had not been produced.
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C.M.A.No.2647 of 2018
7. An order was passed in the said application on 09.10.2018
dismissing the said application necessitating filing of the present appeal.
8. The entire proceedings aforementioned of the trial Court requires
scrutiny. The plaintiff has every right to call upon the defendants, if there is a
mention about documents, in this case to Wills, for which, dates have also
been given, to produce the same. The appellant herein following due
procedure issued notice to produce documents. The documents had not been
produced. Therefore, an application was filed calling upon the
respondent/first defendant to make available the documents for inspection.
Though, more than sufficient opportunity had been granted, the documents
were again not produced.
9. Section 114(g) of the Indian Evidence Act, 1872 is very clear on
this aspect. If a party does not produce a particular document then an adverse
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C.M.A.No.2647 of 2018
interference can be drawn, that the document has not been produced only
because the document is adverse to the party, who in possession of the
document and who claims to lay his case on the document. In the present
case, the first defendant in the written statement has clearly stated about two
separate Wills, one Will executed by mother Sulochana and another executed
by father T.Sambalingam. Those two Wills were called upon to be produced
by the respondent herein.
10. Notice to produce the documents was issued and an application
was also filed. Further application was filed to strike out the defense, since
Wills were not produced. The learned III Additional District Judge, Salem
has dismissed the said application stating that the documents had not been
produced and therefore such order cannot be passed. This order certainly
required to be interfered with.
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C.M.A.No.2647 of 2018
11. However, before this Court, the learned counsel appearing for
the respondent stated that the two Wills will be produced. Let me record that
particular statement and direct the respondent/first defendant to produce the
two Wills executed by the mother Sulochala dated 27.07.2007 and by father
T.Sambalingam dated 06.04.2014 for inspection by the appellant herein.
Necessary explanation should also be given by way of an affidavit as to why
he did not produce it for inspection, when notice to produce documents was
issued.
12. The above particular statement made by the learned counsel for
the respondent is recorded. The order under appeal is not interfered with. Let
the defense stand, but the respondent/first defendant should produce both the
copies of the Wills and file them in O.S.No.303 of 2016 on the file of III
Additional District Court, Salem by 18.03.2022. If the documents are not
produced and filed in the Court by that date, then, the defense of the
respondent/first defendant must be automatically struck off.
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C.M.A.No.2647 of 2018
C.V. KARTHIKEYAN, J
rsi
With the above directions, the Civil Miscellaneous Appeal is
disposed of. No costs.
24.02.2022
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
rsi
To
The III Additional District Judge,
Salem.
C.M.A.No.2647 of 2018
and
C.M.P.No.19986 of 2018
https://www.mhc.tn.gov.in/judis
