Kondappan vs Shankar (Died)
2022 Latest Caselaw 11557 Mad

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 30.06.2022

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                             A.S(MD) No.71 of 2005


                     Kondappan                                       ... Appellant

                                                        Vs.




                     1.Shankar (died)
                     2.Krishnan
                     3.Sundaribai
                     4.Radhabai
                     5.Lalibai alias Kalavathi
                     6.Kesaribai
                     7.Chakrapani
                     8.Saraswathi
                     9.Ratnabai
                     10.Lakshminarayanan
                     11.Saraswathi
                     12.S.Gowribai
                     13.S.Prakash
                     14.S.Mohanram


                     1/18
https://www.mhc.tn.gov.in/judis
                     15.S.Dharmendar

                     (Respondents 12 to 15 are brought on record as LRs of the deceased
                     first respondent vide Court order dated 08.06.2018 made in CMP(MD)
                     Nos.4727 of 2018)                                         ... Respondents


                     PRAYER: Appeal Suit filed under Section 96 of Civil Procedure Code,

                     to call for the records of the II Additional Sub Judge, Tirunelveli, in his

                     judgment and decree dated 07.02.2003 in O.S.No.63of 1996 and set aside

                     the judgment and decree and dismiss the suit of the plaintiff.



                                        For Appellant            : Mr.P.Thiyagarajan

                                        For Respondents          : No appearance



                                                          JUDGMENT

************

For the sake of convenience, the parties are referred to as per their

ranking before the trial Court.

2.The appellant is the third defendant. The first and second

respondents are the plaintiffs. They have filed the suit in O.S.No.63 of

https://www.mhc.tn.gov.in/judis 1996 on the file of the II Additional Sub Judge, Tirunelveli, for partition

and separate possession. After trial, the trial Court decreed the suit and

passed the preliminary decree. Challenging the said judgment and decree,

the third defendant in the suit has filed the present appeal.

3.The averments made in the plaint, in brief, are as follows:-

(i) The plaintiffs and the defendants 1 and 2 and deceased

Saraswathy Bai are the children of Late Kesavaram Bansilal and Late

Lakshmi Bai. The said Saraswathy Bai was working as Staff Nurse in

the Government Hospital and retired on 30.06.1987 as Nursing

Superintendent at Government Hospital, Nagercoil. After retirement,

she was living in her own house mentioned as item No.1 in the

Ist schedule. Within a short period thereafter, she died on 19.02.1990.

During her life time, she did not marry. She died intestate. She left

behind the immovable properties mentioned in schedule I and movable

and cash amounts mentioned in Schedule II. The plaintiffs and the

defendants 1 and 2, who are the legal heirs, equally entitled to the

schedule properties. The plaintiffs are entitled to 3/5th share in all the

schedule properties. Besides the plaintiffs and the defendants 1 and 2,

the deceased Saraswathy Bai had three sisters, who are the defendants

https://www.mhc.tn.gov.in/judis 4 to 6 herein and their whereabouts were not known and unheard off till

date to any of the plaintiffs or their relatives.

(ii) The first defendant and her family members went to the house

of the deceased Saraswathy Bai immediately after her death and they

took custody of all the second schedule movable properties and the

documents of title deeds relating to the first schedule immovable

properties. The plaintiffs are in joint possession with the defendants

1 and 2 over the plaint schedule properties. The plaintiffs demanded the

defendants to have an amicable partition of their shares by metes and

bounds for which the first defendant and her family members are evading

under some pretext or other. Hence, the suit for partition and separate

possession of the plaintiffs 2/5th share in the schedule mentioned

properties by metes and bounds.

(iii) The third defendant has been claiming share in the estate of

deceased Saraswathi Bai alleging that he had contact with the deceased

till her death and that he had also parted with money for purchase of the

1st schedule properties by the said Saraswathy Bai. His claim for a share

in any portion of the schedule properties is totally unfounded and illegal.

https://www.mhc.tn.gov.in/judis Hence, he has been added as a party in this suit. During the pendency of

the suit, the third plaintiff and second defendant passed away and their

respective heirs have been impleaded as defendants 7 and 8 and 9 to 11.

4.The averments made in the written statement filed by the third

defendant, in brief, are as follows:-

(i) The suit for partition though not sustainable, without bringing

all the sisters before the Court, is not maintainable and it is bad for

non-joinder of necessary parties. It is false to state that Saraswathi Bai

did not marry. She married one N.M.Menon, a clerk in the Special

Investigation Branch in the Office of the Commissioner of Income Tax

Department at Madras and she lived with him. The misunderstanding

between them caused entrancement of the spouses and Saraswathi Bai

got separated from her husband in the year 1965. Saraswathi Bai

purchased a vacant site measuring 9.02 cents in NGO A colony from the

Cooperative Building Society 0.1847, Jawahar Nagar, Tirunelveli-7. The

plaintiffs and the defendants 1 and 2 did not know anything about her

and they never joined her at any time. The relationship between this

defendant matured into a bondage of inseparable, mutual love and this

https://www.mhc.tn.gov.in/judis defendant moved to the house of Saraswathi Bai on her request in 1973.

Saraswathi Bai and this defendant had joint accounts in their names.

A fixed deposit certificate was also taken in their names in the Indian

Overseas Bank, Palayamkottai. They purchased the properties jointly

and in individual names in Kottapatti village in Pallapathi Panchayat,

Dindigul Taluk. The said properties are also in the actual possession and

enjoyment of this defendant. Neither the plaintiff nor the defendants 1

and 2 bothered about Saraswathi Bai till the demise of Saraswathi Bai,

excepting the first defendant who very rarely came to her and they had no

access to her on any occasion.

(ii) Saraswathi Bai was frequently affected with fever and strong

head-ache along with giddiness and she used to take pills and medicines

of her choice, but later complained of abdominal pain. On 30.01.1990,

she executed a Will, when the relatives of this defendant came home

expressing to them of her decision. She handed over the said Will to this

defendant, to the knowledge of the first defendant. On 03.02.1990,

Saraswathi Bai complained of acute pain in her abdomen and this

defendant got her admitted into Tirunelveli Medical College Hospital.

She was given the best and required treatment, but she died in the

https://www.mhc.tn.gov.in/judis hospital on 19.02.1990. This defendant arranged cremation of her body.

Soon after the cremation was over, on 21.02.1990, the husband of the

first defendant and her sons came to the house of this defendant and

forced this defendant by stealth with a view to drive him away. Since the

defendant had no other alternative, he went police station and gave a

complaint to Perumalpuram police to protect him.

(iii) The fact that the plaintiffs and the defendants 1 and 2 are in

joint possession of the schedule of properties, is absolutely false. This

defendant alone is in possession and enjoyment of the properties. They

have no right to claim partition in the properties scheduled to the plaint

and there is no cause of action for the suit. They are not entitled to any

share muchless 3/5th shares. The plaintiffs are not in possession of any

of the item of immovable property and the plea of joint possession is

absolutely false. The suit is not maintainable either in law or on facts.

Hence, the suit is liable to be dismissed with costs.

5.The averments made in the additional written statement filed by

the third defendant, in brief, are as follows:-

Vasantha Bai had no right in the properties. Chakrapani's first wife

https://www.mhc.tn.gov.in/judis is alive and through her, he has two children. They are necessary parties

and the defendant No.11 is not a major and he is only a minor. None of

the defendants succeeded to the estate of the third plaintiff and she had

no properties in Tirunelveli to claim legal heirship to it. Neither the

plaintiffs 1 and 2 nor other defendants are entitled to any share in the

properties muchless at the ratio of 2/5 and the entire calculation is wrong

and misconceived.

6.On the basis of the above pleadings, the learned trial Judge

framed the following issues:

(i) Whether the plaintiffs are entitled to get 2/5 share in the

plaint schedule property?

(ii) Whether the necessary parties were impleaded in the suit?

(iii) To what relief, the plaintiffs are entitled?

7.In order to substantiate the case, on the side of the plaintiffs one

witness was examined as PW1 and one document was marked as Ex.A1.

On the side of the defendants, three witnesses were examined as DW1 to

DW3 and 21 documents were marked as Ex.B1 to B21.

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

8.On completion of trial and on hearing of arguments advanced on

either side, the learned trial Judge considered the evidence available on

record, decreed the suit and passed the preliminary decree for partition

and separate possession of plaintiffs' 2/5th share in the suit properties.

Aggrieved over that, the third defendant filed the present appeal.

9.The learned counsel for the appellant would submit that the

properties in items No.3 and 4 of 1st schedule, were jointly purchased in

the name of Saraswathi Bai and the appellant. She died without any

issue and the husband also deserted. The appellant is the friend of the

said Late Saraswathi Bai. The said Sarawathi Bai was living along with

the appellant and she executed the Will in favour of the appellant. As

per the Will Ex.B7, the appellant is the owner of the property and he is

entitled to the property mentioned in the Will. The trial Court failed to

consider the documents Ex.B4, Ex.B6 and Ex.B7. The documents in

Ex.B4, Ex.B6 and Ex.B7 clearly stated that the appellant is the joint

purchaser with the Saraswathi Bai. The recitals in the sale deed Ex.B4

and Ex.B6 are not stated anything about the special contribution or

regarding the shares in the property. Therefore, in the absence of the

same, as per Section 45 of the Transfer of the Property Act, the joint

https://www.mhc.tn.gov.in/judis purchaser is entitled to equal share in the property mentioned in the

document and no contra evidence has been established contrary to the

recital of the said document. Further, under Ex.B7, the said Saraswathi

Bai executed the Will in favour of the appellant.

10.The learned counsel for the appellant further submitted that one

of the attestor of the Will was examined as D.W.2 and the son of the

another attestor to the Will was examined as D.W.3-Jawarangir, since

the another attestor to the Will was no more during the trial. The son of

the attestor also identify the signature of his father. Therefore, the Will

was executed in the manner known to law under Section 63 of the Indian

Succession Act and the Will was also proved in the manner known to law

as per Section 68 of the Indian Evidence Act. Once the Will is proved,

then the plaintiffs are out of the suit and they are not entitled to any share

as Saraswathi Bai executed the Will and bequeathed the properties

mentioned in the Will and therefore, the plaintiffs are not entitled to get

any share in the property. The trial Court failed to appreciate the same

and decreed the suit. In support of his contention, the learned counsel

also placed reliance on the Judgment of this Court reported in 1973-86

LW462 in the case of Guruswami Asari vs Raju Asari, reported in 1976

https://www.mhc.tn.gov.in/judis 0 AIR(Mad) 222 in the case of Tehmina Dinshaw Tehrani vs Official

Assignee, reported in 1978 91 LW 246 in the case of C.V.Ramaswami

Naidu and others Vs C.S.Shyamala Devi and others.

11.The learned counsel for the respondents 2 and 12 to 15 has

filed written arguments stating that the appellant has been claiming share

in the estate of the deceased Saraswathi Bai alleging that the appellant

had contacted with deceased Saraswathi Bai till her death and that he had

also parted with money for purchase of the first scheduled properties.

The appellant claims for the share in any portion of the scheduled

property, which is totally unfounded and illegal. The appellant claims to

have paid to buy the property of the deceased Saraswathi Bai, but no

records of the payment have been submitted to this Court or the trial

Court. Moreover, the Will written by Saraswathi Bai was not signed by

any of the outside individuals except the appellant relations. The

appellant was just in helping the deceased Saraswathi Bai due to her ill

health. The relationship between the deceased Saraswathi Bai and the

appellant was null. There is no documentary evidence that the deceased

Saraswathi Bai was accepted the appellant as husband. The appellant

cannot claim share over the suit properties. Further, DW2 is the brother

https://www.mhc.tn.gov.in/judis of the appellant's wife and now he is claiming the lease holder of the first

scheduled properties of the deceased Saraswathi Bai. The appellant and

DW2 jointly colluding and created fake and forged documents with the

help of others to claim share over the suit properties. Hence, he prayed

to dismiss the appeal.

12.Heard the learned counsel appearing for the appellant, perused

the pleadings, issues framed by the trial Court and oral and documentary

evidence adduced and produced by both parties.

13.Admittedly, Saraswathi Bai died intestate and without any first

class legal heirs. Therefore, the brother and sister of Saraswathi Bai as

second class legal heirs has filed the suit for partition. The appellant has

filed the written statement stating that Saraswathi Bai jointly purchased

the item Nos.3 and 4 in the name of both the appellant and her name and

they are each entitled to half share in the item Nos.3 and 4 as per the sale

deed Ex.B4 and Ex.B6. The Sarawathi Bai also executed the Will Ex.B7

bequeathing her half share in the said properties and the other movable

properties in favour of the appellant. The said Will has also been proved

in the manner known to law. The trial Court has stated that Saraswathi

https://www.mhc.tn.gov.in/judis Bai was working as nurse and having the means and source to purchase

the property and at the time of purchasing the property, the appellant was

jobless and he has no means to contribute the fund to the same and

therefore, only Saraswathi Bai alone included the name of the appellant

and the entire property belongs to the Saraswathibai. Since the

Saraswathi Bai died issueless and there is no first class heirs to the

Saraswathibai, the plaintiffs are entitled to share, whereas the documents

Ex.B4 and Ex.B6 clearly show that Saraswathi Bai and appellant jointly

purchased the property. The recitals do not show that Saraswathi Bai

alone contributed the fund and she alone paid the sale consideration and

the appellant is only the name lender and the appellant has no right or

share or lessor share in the property. Therefore, in the absence of the

same, as per Section 45 of the Transfer of Property Act, if any property

jointly purchased in the names of two or more persons, they are entitled

to equal share in the said property. In this case, the respondents have not

proved that the appellant has not contributed the fund and even

otherwise, the Saraswathibai alone contributed the fund to purchase the

property.

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

14.The appellant was shown as joint purchaser and during the

lifetime of the Saraswathibai, she has not disowned the rights of the

appellant and also she has not parted with the properties and further

during the lifetime of the Saraswathibai, she executed the Will Ex.B7 in

favour of the appellant which clearly shows the intention of the

Saraswathi Bai and on a reading of the entire evidence, the Will has been

proved in the manner known to law, but the trial Court has given the

finding that the appellant has no means and he has not contributed, the

Will has not been proved in the manner know to law and disbelieved the

evidence of the attestors.

15.The trial Court failed to consider the legal proposition that once

the property purchased in joint name, all the joint owners are equally

entitled to the property. When the recital is absent regarding

consideration and proposition of share and two persons jointly purchased

the property, both are entitled to equal share. Therefore, a reading of

Ex.B4 and Ex.B6, would prove that Item Nos.3 and 4 jointly purchased

in the names of Saraswathi Bai and the appellant. Further Ex.B7-Will

also confirmed the same that Saraswathi Bai bequeathed her share to the

appellant and not only that property and the movable properties.

https://www.mhc.tn.gov.in/judis Therefore, the appellant is entitled to get the benefit of the Will. The trial

Court failed to consider the same since the appellant is not a relative to

the Saraswathi Bai and disbelieved the case of the appellant and decreed

the suit. However, this Court as first appellate Court can re-appreciate

the entire evidence and give independent findings.

16.A reading of the pleadings and evidence, clearly shows that

both the appellant and the Saraswathi Bai were living together for some

time and he was only taking care of the Saraswathi Bai and at that time,

the Saraswathi Bai jointly purchased the property both in the name of the

Saraswathi Bai and the appellant. She also executed the Will in favour of

the appellant and the Will has also been proved in the manner known to

law.

17.Considering the facts and circumstances of case, the appellant

jointly purchased the item Nos.3 and 4 with the Saraswathi Bai.

Therefore, in the absence of the any specific recitals regarding the

quantum of the shares, as per Section 45 of Transfer of Property Act, the

appellant is the joint purchaser and they are entitled to equal share.

Though the respondents have not proved their case, the appellant has

https://www.mhc.tn.gov.in/judis proved his defence and in a suit for partition is concerned, both the

plaintiffs are defendants and the defendants are plaintiffs and they have

to establish their respective case. In this case, the appellant is not a

relative to the Saraswathi Bai and the respondents are the sisters of the

Saraswathi Bai, but the recitals of the documents clearly show that the

appellant jointly purchased the properties with the Saraswathi Bai.

Therefore, as per Ex.B4 and ExB6, the appellant is entitled to half share

in item Nos.3 and 4 of the suit properties and as per the Will Ex.B7 the

appellant is entitled to entire share in item Nos.3 and 4. Therefore, as far

as the Will mentioned property is concerned, the appellant proved the

Will in the manner known to law. The reason stated by the trial Court for

disbelieving the Will, is not sustainable either under law or on facts.

18.Therefore, under the said circumstances, the Appeal Suit is

allowed and the judgment and decree dated 07.02.2003 passed by the

trial Court in O.S.No.63 of 1996 with reference to the Will mentioned

properties under Ex.B7 is set aside. No costs.

30.06.2022 Index:Yes Internet:Yes

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

1.The II Additional Sub Judge, Tirunelveli.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis P.VELMURUGAN,J.

cp

A.S(MD) No.71 of 2005

30.06.2022

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