Madras High Court
Sasikala vs Baby Ammal on 30 June, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.06.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.59 of 2010
and
CMP.No.1 of 2010
1.Sasikala
2.Minor Punitha
3.Minor Santhosh
... Appellants
Vs
1.Baby Ammal
2.Selvaraj
3.Tamil Nadu Electricity Board,
rep. by its Superintending Engineer,
Nethaji Road, Cuddalore,
Cuddalore Taluk.
4.Life Insurance Corporation of India
rep. by its Branch Manager,
Kumbakonam Road,
Panruti.
5.Arumugam ... Respondents
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2
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.65 of 2007 dated 26.08.2009 on the
file of the District Court, Cuddalore partly allowing the appeal and setting
aside the judgment and decree made in O.S.No.104 of 2004 dated
31.07.2007 on the file of the Sub Court, Panruti.
For Appellants : Mr.R.Gururaj
For Respondents : No Appearance
JUDGMENT
The 1st 2nd and 3rd defendants in O.S.No.104 of 2004 on the file of the
Sub Court, Panruti, are the appellants herein. The said suit in O.S.No.104 of
2004 has been filed by the 1st respondent Baby Ammal, with respect to three
immovable properties which were shown as item Nos.1, 2 and 3 in the
schedule to the plaint and a Life Insurance Corporation policy which was
shown as item No.4 in the plaint and also with respect to the death benefits
of her son shown as item No.5. The son was employed in the Tamil Nadu
Electricity Board and unfortunately died in an accident. She had impleaded
in the said suit, the widow of the son and his minor daughter and minor son
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as the 1st, 2nd and 3rd defendants and her husband as the 4th defendant. The
5th defendant in the suit was Tamil Nadu Electricity Board and the 6th
defendants in the suit was the LIC and the 7th defendant in the suit was said
to be the sister's husband of the 1st defendant and he had been impleaded
since the document relating to item Nos.2 and 3 stood in his name.
2.As a matter of fact, the document with respect to item No.1 stood
in the name of the 4th defendant / husband of the plaintiff / father of the
deceased. The suit was filed seeking a preliminary decree and to partition
into four shares the aforementioned items as shown in the schedule to the
plaint and to allot one share to her.
3. This suit came up for consideration before the Sub Court, Panruti
and by judgment dated 31.07.2007, after analyzing evidence recorded the
suit was dismissed.
4.The following were the issues and additional issues framed in the
said suit for consideration.
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“1.Whether the plaintiff is entitled to 1/4 share in the suit
properties?
2.Whether the 5th defendant is not a necessary party to
the suit?
3.To what relief the plaintiff is entitled to?”
Additional Issues:-
“1.Whether the 1st item of property was purchased by the
4th defendant out of his own income in the name of his son
Somasundaram?
2.Whether the plaintiff is entitled to 1/4 share in 2 nd and 3rd
items?
3.Whether the plaintiff has valued the suit property and
paid the correct court fees?”
5.During Trial, the 1st respondent herein / plaintiff had examined
herself as PW-1 and she marked one document as Ex.A1, a copy of a Sale
Deed dated 27.03.2002. The defendants appear to have contested the claim
of the plaintiff seeking 1/4 share in the suit schedule property and on behalf
of the defendants two witnesses were examined. The 1st defendant / widow
was examined as DW-1 and another witness was examined as DW-2. On
the side of the defendants Exs.B1 to B15 were marked. The Sale Deed
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which was marked by the plaintiff dated 27.03.2002 was also marked as
Ex.B1. Another sale deed dated 07.08.2003 was marked as Ex.B2. Letters
and statement issued by the LIC were marked as Exs.B6, B7 and B8. The
correspondences with the Electricity Board were marked as Exs.B11 and
B12. The exchange of Advocate notices were marked as Exs.B13 and B14.
6.On analysis of the oral and documentary evidence adduced, the
learned Sub Judge, Panruti held that the plaintiff was not entitled to 1/4
share in item Nos.1, 2 and 3. With respect to item Nos.4 and 5 the plaintiff
was given a right to file a fresh suit on the same cause of action. The
reasoning of the learned Sub Judge, with respect to item Nos.1, 2 and 3 are
quite obvious. Item Nos.1 and 2 stood in the name of the 7 th defendant,
Arumugham and item No.1 was in the name of the husband of the plaintiff /
Selvaraj. It is quite obvious that unless the plaintiff had let in substantial
evidence to prove that consideration under the said sale deeds had been
provided by her and that owing to various circumstances, she had permitted
the names of the purchasers to be 3rd parties, a written document can never
be re-examined by the Court, on the basis of oral evidence. The Indian
Evidence Act, 1872, is quite clear on that. Section 92 of the Act, which
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provides that no amount of oral document can be let in overriding the
covenants in a written document.
7.With respect to the amounts which are receivable from LIC, it is
stated by the learned counsel for the appellant that the 1 st appellant herein
had received the said amount quite long back in her capacity as widow and
therefore permitting the plaintiff to institute a fresh suit on the same cause of
action would be quite unreasonable. But let me come back to that aspect a
little later.
8. Thereafter a First Appeal came to filed in A.S.No.65 of 2007. This
came up before the Principal District Court, Cuddalore. The learned
Principal District Judge, Cuddalore, had framed points for consideration to
examine whether the judgment and decree of the Trial Court could be
sustained. Thereafter, the First Appellate Judge also examined the
endorsement made by the plaintiff that she is not claiming any right or for
partition or any share in item Nos.2 and 3 and had therefore, straight away
noted that the plaintiff herein would not entitled to any share in item Nos.2
and 3. Thereafter, it was held that the appeal would survive only with
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respect to item No.1 which was the property in the name of the husband / 4 th
respondent herein and item Nos.4 and 5 / amounts receivable under the LIC
policy and the death benefit of the deceased.
9.With respect to item No.5 namely the death benefits, it had been
stated that the plaintiff had issued a no objection certificate letter stating that
the 1st appellant herein can receive the said amount, viz., the death benefits
and on that basis, the First Appellate Court had dismissed the appeal with
respect to the 5th item also.
10.This leaves out item Nos.1 and 4. With respect to the 1st item, the
First Appellate Court went into a detailed discussion and found fault with
the reasoning of the learned Trial Judge and stated that the plaintiff would
be entitled to an undivided 1/4 share in the 1st item of suit property.
11.I do not think that reasoning can interfered with in the Second
Appeal since, the reasoning is correct. The mother is a class I heir of her
deceased son. The property standing in the name of the deceased son would
also in accordance with the ratio devolve upon her as a class I heir.
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Therefore, I would hold that this appeal would not stand with respect to item
No.1.
12.These leaves out item No.4 which is the LIC amount received by
the 1st appellant herein under the LIC policy. That was an amount of
Rs.1,50,000/-. Mr.Gururaj, learned counsel, stated that amount had been
paid to the 1st appellant. The 1st respondent as plaintiff, has not paid any
Court fees seeking recovery of her 1/4 share. Even otherwise I do not think
that such a minute division should be entered into upon members of the
family, who have already suffered the loss of the husband / son. Let that
aspect remain as it is. The 1st appellant had received the amount and I am
confident that towards looking after her mother-in-law in her advanced age,
she would repay more than what she had received from the LIC policy by
way of affection showered.
13.Therefore, in the Second Appeal, I do not think that it would be
worthwhile to issue notice to the respondents as no substantial question of
law arises for consideration.
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14.The Second Appeal is dismissed with respect to item No.1 which
would indicate that the 1st respondent / mother is entitled to a preliminary
decree of 1/4 share in item No.1 alone. With respect to item No.4, the
Second Appeal is allowed and the 1st appellant who had received the
amount from LIC can retain the fruits of such amount. Let there not be a
minute partition of the each and every item of the deceased.
15.In the result, the Second Appeal is partly allowed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
30.06.2022
Index:Yes/No
Internet:Yes/No
smv
To
1.The Principal District Court, Cuddalore.
2.The Sub Court, Panruti.
3.The Section Officer, VR Section, Madras High Court.
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C.V.KARTHIKEYAN,J.
Smv
S.A.No.59 of 2010
30.06.2022
https://www.mhc.tn.gov.in/judis
