Mariyayee (Died) vs Malaiyappan
2022 Latest Caselaw 17383 Mad

                                                                               SA(MD)No.440 of 2004


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED: 08.11.2022

                                  CORAM: JUSTICE N.SESHASAYEE

                                           S.A(MD).No.440 of 2004


                1.Mariyayee (Died)                           ...Appellant/Respondent/Plaintiff
                2.Karuppiah
                3.Rajakumar
                4.Renganathan                                ....LR's of 1st Appellant


                [Appellants 2 to 4 are brought on record as LR's of the deceased sole
                appellant vide order dated 18.07.2012 made in M.P(MD).No.1 of 2012
                in S.A(MD).No.440 of 2004]

                                                      Vs.


                Malaiyappan                                 ...Respondent/Appellant/Defendant




                Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure,
                against the judgment and decree of the Subordinate Court, Pudukottai passed
                in A.S.No.7 of 2003 and Cross Appeal No.7 of 2003 dated 24.12.2003
                reversing the decree and judgment of the District Munsif Court, Aranthangi
                passed in O.S.No.120 of 1988 dated 31.01.2001.

                                     For Appellants     : Mr.N.Balakrishnan

                                     For Respondent     : Mr.K.Baalasundharam


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https://www.mhc.tn.gov.in/judis
                                                                                SA(MD)No.440 of 2004


                                                JUDGMENT

1.1. The plaintiff in O.S.No.120 of 1988 is the appellant herein. The suit was

laid by her for declaration of her life estate in six items of the suit properties

based on Ext.A.3-Will dated 29.08.1985 executed by her husband.

1.2. The trial Court vide its judgment dated 13.09.1993 partially decreed the

suit. As against the same, the plaintiff preferred A.S.No.180 of 1993. The First

Appellate Court vide its judgment and decree dated 24.11.1994 remanded the

matter back to the trial Court. Thereafter, on 31.01.2001, the trial Court

dismissed the suit as regards item No.2 but granted a decree declaring her right

over item Nos.1, 4 and 5 of the properties in entirety and partially over item

Nos.3 and 6 of the properties. This decree came to be challenged before the

first appellate Court by the defendant. As regards the decree dismissing the suit

pertaining to item No.2, the plaintiff had preferred the cross-objection. The

first appellate Court allowed the appeal and dismissed the cross-objection.

Hence, the plaintiff is before this Court.

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

2. The brief facts are:-

● The suit properties and others originally belonged to a certain

Adhimoola Konar and his brother Ramakonar. On 19.08.1935, under

Ext.B1, they entered into a partition in which Adhimoola Konar was

allotted some properties. Subsequently, on 17.07.1952, Ramakonar

borrowed a sum of Rs.500/- from his brother Adhimoola Konar and

executed Ext.A.1 document which is styled as 'Varthamana kai

kaditham'. In this document, Ramakonar had made a statement that in

case of his failure to repay the amount, the lender would be entitled to

take his entire share of properties. According to the plaintiff, Ramakonar

never paid the money and Adhimoola Konar came to enjoy the

properties as his own properties.

● Adhimoola Konar was married twice. His first wife was one Malayathal

through whom he had two daughters and a son, the defendant herein.

After the demise of Malayathal, Adhimoola Konar married the plaintiff

as his second wife through whom he had two sons and a daughter.

● While so, Adhimoola Konar and his three sons including the defendant

herein have entered into an oral partition in which the properties he held

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

were partitioned and allotted to all the parties. And, the properties

involved in the present litigation were allotted to the share of Adhimoola

Konar.

● While so, on 29.08.1985, Adhimoola Konar executed an unregistered

Will as regards the properties allotted to him (suit properties). This Will

was marked as Ext.A.3. Under this Will, Adhimoola Konar had granted

life estate to his second wife, the plaintiff herein and thereafter directed

that the properties would go absolutely to his two sons born through the

plaintiff. When the plaintiff faced certain obstruction to her enjoyment

of the properties, she laid the suit for declaration of her life estate over

the properties.

3. In his written statement, the defendant inter alia disputed the genuineness of

Ext.A.3-Will.

4. The dispute went to trial Court before which both sides adduced oral and

documentary evidence. For proving the Will-Ext.A.3, the plaintiff had

examined both the attestors as P.W.2 and P.W.3. On appreciating the evidence,

the trial Court had upheld the Will. Turning to the right claimed by the

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

plaintiff, the trial Court found that the plaintiff would not be entitled to a

declaratory relief as regards the item No.2 of the properties and dismissed the

suit. Of the remaining items, the trial Court granted a decree regarding item

Nos.1, 4 and 5 of the properties upholding her life estate over the same based

on Ext.A.3. So far as item Nos.3 and 6 of the properties are concerned, the trial

Court declared the plaintiff's right only to the extent of 21.5 cents in item No.3

and 18 cents in item No.6. When the matter reached the First Appellate Court,

the First Appellate Court disbelieved the genuineness of Ext-A.3-Will.

5. This appeal was admitted for considering the following substantial questions

of law:-

i. On the facts and circumstances, in view of the contentions of parties and evidence adduced by them was the dismissal of suit filed by the appellant for declaration and injunction by the Lower Appellate Court sustainable in law?

ii. Was the finding of Lower Appellate Court that the Will under Exhibit A-3 was not proved tenable in law when P.W.2 and P.W.3 were examined to prove due execution?

iii. Whether the Lower Appellate Court was correct in holding that Exhibit A-1 was invalid and unenforceable?

iv. Whether the finding of the Lower Appellate Court that the suit filed by the appellant in respect of item No.4 was barred as

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

per Order 22 Rule 9 CPC sustainable?

5. Was the Lower Appellate Court right in concluding that certain items of properties shown in the suit schedule remain undivided as contended by the respondent when the contention was not proved by him and when the said contention was against the presumption in respect of partition under Hindu Law?

6. This Court does not consider it necessary to hear the matter elaborately for

the reasons that the First Appellate Court has blindly lifted paragraph after

paragraph of the notes of argument provided by the learned counsel for the

defendant from paragraph Nos.11 to 33 of its judgment and paragraph Nos.34

and 35 alone were its original making. It essentially conveys nothing because

the plaintiff has preferred a cross-objection. What the learned Subordinate

Judge intends to convey possibly is only he can explain. Only the decree

conveys what the learned Subordinate Judge intended to convey, but then, the

decree ought to reflect and the judgment cannot operate independently. In these

circumstances, this Court is left with no option but to set aside the judgment

and remand the case back to the First Appellate Court for de novo

consideration.

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

7. In the meantime, there is a change of circumstance in that the plaintiff has

passed away. Admittedly, the suit was laid only for declaration of the plaintiff's

life estate. As already indicated, she claims this based on Ext.A.3-Will. Now if

Ext.A.3-Will is genuine, then the properties will devolve on the plaintiff's two

sons, namely, Renganathan and Karuppiah. If Ext.A.3-Will is not genuine, then

the defendant may also have a claim over the properties. And the daughters of

Adhimoola Konar may not be ignored. Since the dispute pertaining to these

properties is pending adjudication from 1988, and inasmuch as a finding as to

the genuineness of the Will has to be made, this Court only deems it

appropriate that the parties are allowed to amend their pleadings within a time

to be stipulated herein, and the first appellate Court may decide the issue and

take evidence on its record if it becomes necessary and dispose of the appeal

again within a time to be stipulated herein.

8. In fine, this appeal is allowed and the judgment and decree of the

Subordinate Court, Pudukottai passed in A.S.No.7 of 2003 and Cross Appeal

No.7 of 2003 on 24.12.2003 is set aside and the matter is remanded back to the

Subordinate Court, Pudukottai. Both sides are required to appear before the

Subordinate Court, Pudukottai on 05.12.2022 and are required to amend their

pleadings if they are so interested within 60 days from 05.12.2022. The

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

Subordinate Court, Pudukottai, is required to dispose of the matter within a

period of six months after filing the written statement. No costs.

08.11.2022 ssb

Note: Registry is directed to issue order copy on 14.11.2022.

To

1. Sub Court, Pudukottai

2. District Munsif Court, Aranthangi

3.The Section Officer, VR Section, Madurai Bench of Madras High Court.

https://www.mhc.tn.gov.in/judis SA(MD)No.440 of 2004

N.SESHASAYEE., J.

ssb

S.A(MD).No.440 of 2004

08.11.2022

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