Madras High Court
Thangaraj vs Sarasu on 22 September, 2022
Appeal Suit No.947 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :22.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Appeal Suit No.947 of 2015
1.Thangaraj
2.T.Rajavel ... Petitioners
Versus
1.Sarasu
2.P.Neela
3.S.Saroja
4.Vetrivel
5.R.Periyamma ... Respondents
First Appeal is filed under Section 96 of the Code of Civil
Procedure, against the Judgment and Decree of the Learned I-Additional
District Judge, Salem in O.S.No.151 of 2011, dated 19.12.2014.
For Appellants : Ms. J. Prithivi
For Respondents : Mr. P. Jagadeesan
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Appeal Suit No.947 of 2015
JUDGMENT
The Appeal Suit is directed against the Judgment and decree dated
19.12.2014 in O.S. No.151 of 2011, on the file of the I-Additional Court,
Salem, in and by which the suit was filed by the respondents herein, for
partition of the suit property and to allot 2/10 share each to the plaintiffs
was decreed by the Trial Court.
2.The case of the plaintiffs is that the first plaintiff/Sarasu, the
second plaintiff/ Neela, late Subramani represented by his legal heirs the
third and fourth plaintiffs, and the first defendant/Thangaraj, second
defendant Periamma and along with other one more person namely
Ammasi (since deceased as a bachelor), were the children of Periyanna
Nadar and Pappathi Ammal. The suit property was purchased by
Pappathi Ammal, by a registered Sale Deed dated 07.12.1967. The said
Periyanna Nadar died and thereafter, Pappathi Ammal passed away on
03.06.1968. The suit property was in joint possession and enjoyment of the
plaintiffs and the defendants 1 & 2. In the year 2011, the plaintiffs came to
know that the first defendant is attempting to settle the property on the
third defendant, his Son. Therefore, they issued a legal notice on
22.04.2011 demanding the partition and separate possession of the suit
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Appeal Suit No.947 of 2015
property. However, there was no positive response. However, on
verification from the Sub-Register Office, they came to know that without
any right over the title whatsoever, a Settlement Deed dated 02.02.2011
was executed by the first defendant in favour of his son i.e., the third
defendant. Hence the present suit.
3.The suit is resisted by the defendants. The first defendant filed a
written statement. It is the case of the defendants is that Periyanna Nadar
married one Pappathi Ammal. There were only three children to this
couple. The first defendant/Thangaraj and two other brothers by name
Periyannan and Kaliyaperumal were only born to them. However, the said
Periyannan and Kaliyaperumal, died in the year 1966 and 1975
respectively. Periyanna Nadar had an extra-marital relationship with one
Pappu @ Parvathi, and the first plaintiff/Sarasu, the second plaintiff/
Neela, one late Subramani, the husband of the third plaintiff and the father
of the fourth plaintiff, and the second defendant / Periyamma, are all born
to the said Pappu @ Parvathi. Therefore, the suit property being the
absolute property of Pappathi Ammal, the plaintiffs, as well as the second
defendant, are not at all legal heirs of the deceased Pappathi Ammal. The
first defendant was only in absolute possession and enjoyment of the
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Appeal Suit No.947 of 2015
property and he had settled the property in favour of his son namely
T.Rajavelu, the third defendant in the suit. Therefore, he prayed for the
dismissal of the suit.
4.On the above pleadings, the following issues were framed by the
Trial Court :-
"1) Whether the plaintiffs 1 and 2, defendants
1 and 2, 3rd plaintiff's husband Subramani are the
sons and daughters of the Pappathi Ammal?
2) Whether the plaintiffs are having 6/10
shares in the suit properties?
3) Whether the 1st defendant is alone is the
legal heir of the Pappathi as stated by the defendant
No.1?
4) Whether the settlement deed executed in
favour of defendant No.3 is valid?
5) Whether the plaintiffs are entitled for
declaration and partition as prayed for?
6) To what other relief the plaintiffs are
entitled to? "
5.On behalf of the plaintiffs, the first plaintiff was examined as
P.W.1. One Kuppusamy, who is the neighbour and resident of the Village
was examined as P.W.2. One Rameshkumar, the Tahsildar, who issued the
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Appeal Suit No.947 of 2015
legal heir certificate, was examined as P.W.3. On behalf of the plaintiffs,
the Sale Deed dated 17.12.1967 by which the suit property was purchased
by Pappathi Ammal, was marked as Ex.A-1. The Settlement Deed, dated
02.02.2011, executed by the first defendant in favour of his son, the third
defendant, was marked as Ex.A-2. The legal notice issued on behalf of the
plaintiffs and the acknowledgment cards were marked as Exs.A-3 to Ex.A-
5. The copy of the legal heir certificate of the deceased Pappathi Ammal,
was marked as Ex.A-6. The Family Card of PW2 evidencing his address,
was marked as Ex.A-7.
6.On behalf of the defendants, the first defendant examined himself
as D.W.1. The transfer of Patta proceedings in and by which, the Patta in
respect of the suit property transferred in the name of the first defendant on
07.04.1997, was marked as Ex.B-1. The consequent Patta No.1343, issued
in the name of the first defendant/D.W.1, on 21.02.2011, was marked as
Ex.B-2. Yet another Patta, issued in the name of Periyannan, on
13.01.2006, is marked as Ex.B-3. The Chitta extract is marked as Ex.B-4.
A certified copy of Decree in O.S.No.185 of 1990, dated 12.01.1996, was
marked as Ex.B-5. A true copy of Patta, which was granted in the name of
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Appeal Suit No.947 of 2015
the first defendant, is marked as Ex.B-6. The Kists receipts being 12 in
number, evidencing the payment of kists of the first defendant, is marked
as Ex.B-7. After execution of the Settlement Deed, the third defendant
had paid kists on 18.12.2012, which was marked as Ex.B-8. The file
maintained by the Taluk Office, Vazhapadi, regarding the issue of a legal
heir certificate in respect of the deceased Pappathi Ammal, was summoned
and marked as Ex.X-1.
7.The Trial Court considered the above evidence on record and after
hearing the learned counsel for the parties, by Judgment dated 19.12.2014,
held that the plaintiffs, by giving oral evidence of P.W.1, supported by
evidence of P.W.2, and on yet another circumstance wherein the first
defendant had admitted in his cross-examination that the deceased
Subramani, was his brother in the complaint given by him to the police,
took the circumstances cumulatively and held that the plaintiffs have
proved the relationship with the said Pappathi Ammal, to the level of
preponderance of probability. It is further held that the case of the
defendants, that one Pappu @ Parvathy, with whom Periyanna Nadar,
having extramarital relationship, being the case of the defendant 1 & 3,
was not at all proved by the defendants and taking into consideration the
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Appeal Suit No.947 of 2015
totality of the circumstances, passed a preliminary decree in the suit, by
dividing the property into 10 equal shares and allotting 6 shares to the
plaintiffs. Aggrieved by the same present appeal suit is laid before this
Court.
8.Heard Ms.Prithivi, Learned Counsel for the appellants and
Mr.P.Jagadeesan, Learned Counsel appearing on behalf of the
respondents.
9.The learned counsel appearing for the appellants taking this Court
through the pleadings and the evidence on record would submit that in this
case, the entire geneology and the relationships as pleaded by the
plaintiffs, are specifically denied by the defendants. In that view of the
matter, it is the bounden duty of the plaintiffs to prove their case. The
plaintiffs had produced the legal heir certificate, which is a document
Pendente lite. Therefore, the Trial Court itself has discredited the same.
The first plaintiff/P.W.1, had examined only P.W.2. The defendants had
successfully discredited the evidence of P.W.2, by duly marking Ex.B-5,
the suit between the first defendant and the son of P.W.2, and therefore,
established their previous enemity and motive, and thus discredited the
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Appeal Suit No.947 of 2015
evidence of P.W.2. Once the evidence of P.W.2 goes, then, there is nothing
on record before the Trial Court to decree the suit. Even the third
circumstance, relied upon by the Trial Court that as if the defendant had
admitted the late Subramani, as his brother itself is not a proper reading of
evidence and the first defendant/D.W.2, in his evidence had categorically
stated that only upon the insistence of the police he had stated so. Even
then the plaintiffs also did not produce the said complaint so as to prove
what was stated in the said complaint. In that view of the matter, she would
contend that the Trial Court cannot decree the case on the weakness of the
case of the defendant, when the plaintiffs had miserably failed to prove
their case. She would rely upon Section 50 of the Evidence Act, that
neither any member of the family was examined. Nor P.W. 2 can be
regarded as an expert as he, in the cross-examination was thoroughly
exposed. He did not know about the particulars of the marriage, residence
of the daughters etc., and she would submit that therefore, the evidence
would not pass in the muster of Section 50 of the Evidence Act.
Therefore, she would pray that the Appeal Suit be allowed, especially,
when the defendant had categorically proved his exclusive possession of
the suit property by producing the Patta and Chitta extract. The Trial
Court had only on flimsy reason discredited the Patta, which is standing in
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Appeal Suit No.947 of 2015
the name of the first defendant.
10.Per contra, the learned counsel for the respondent would submit
that the plaintiffs have proved their case by examining the first
plaintiff/P.W.1 and by examining another resident of the village, who had
personal knowledge, who was 85 years old as P.W.2 and marking the
legal heirship certificate as a document. The Tahsildar, who issued the
legal heirship certificate was examined as P.W.3. It can be seen from
Ex.X1, that the legal heirship certificate was duly issued after conducting a
proper enquiry. Therefore, by virtue of the legal heirship certificate, even
though pending the suit, the relationship of the parties is further
established. He would also submit that about the two other factors, that for
the pre suit notice there was no reply; and admission of D.W.1 in his cross-
examination that he has mentioned that the deceased Subramani, the
husband of the third plaintiff, as his brother, in the said Police complaint,
would further buttress the case of the plaintiff. Therefore, he would submit
that the Trial Court has rightly decreed the suit.
11.I have considered the rival submissions made on both sides and
perused the material records of this case.
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Appeal Suit No.947 of 2015
12.The only question, which has to be decided is whether or not the
plaintiffs 1 & 2, late Subramani, who is the husband of the third plaintiff
and the father of the fourth plaintiff and the second defendant Periyamma
are all born to the late Periyanna Nadar, through his wife Pappathi Ammal
or by another lady Pappu @ Parvathi. It is the case of the plaintiffs that,
they are all born to one Pappathi Ammal, along with the first defendant
and one more person by name Ammasi, who also since passed away.
Towards the claim of the plaintiffs, the first plaintiff examined herself as
P.W.1. A cumulative reading of the evidence of P.W.1 along with the
entire cross-examination, except for the mere suggestion that the plaintiff
was only born to Pappu @ Parvathi, not even any suggestion has been
made about the whereabouts or identity of the said Pappu @ Parvathi. On
the other hand, P.W.1, had cogently deposed that she was born to Pappathi
Ammal. To corroborate the evidence of P.W.1, P.W.2 was examined. Even
though his evidence is sought to be as discredited, on account of the
previous enmity, mere imputation of motive alone will not be enough, to
totally discredit the evidence of P.W.2, in respect of the facts spoken to by
him.
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Appeal Suit No.947 of 2015
13.Even other submissions made by the learned counsel for the
appellants that he is unable to pinpoint the other particulars have to be
considered from the fact that P.W.2, was aged about 85 years, at the time
of examination, therefore, it is quite but natural, he is unable to remember
all the details. However, as far as the maternity of the plaintiffs is
concerned, he clearly and categorically had deposed that Periyanna
Nadar, had only one wife by name Pappathi Ammal, and the parties are all
progenies of the said marriage. To that extent, I find that inspite of the
previous civil litigation between D.W.2 and P.W.2, P.W.2 is still reliable.
13.This apart, even though Ex.A-6/legal heirship certificate was
issued only pending the suit, but, it can be seen that Tahsildar, who issued
the legal heirship certificate, was examined as P.W.3. It has been
mentioned that after due enquiry, the legal heirship certificate is issued. To
that extent, even though the legal heirship certificate was obtained after
filing of the suit, the said certificate can also be taken as a corroborative
piece of evidence. As a matter of fact, the entire file leading to the issue of
the certificate was summoned and marked as Ex. X1. The defendants are
unable to point out any infirmity in the said proceedings.
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Appeal Suit No.947 of 2015
14.Further, there are two other circumstances in this case, the first
circumstance being that the admission of D.W.1, in his cross-examination
that had mentioned that the deceased Subramani, who met with an
accident, as his brother. It was not specifically denied by D.W.1 that he
mentioned him only as step-brother. This apart, when a pre-suit notice was
issued no reply, was also forthcoming. Therefore, I hold that the plaintiffs
have proved their case about the relationship of the parties/genealogy. On
the other hand, it is the defendant 1 & 3's specific case, that the plaintiffs
are not at all sisters and the deceased Subramani, is not at all his brother
and they were only step-brother and step-sisters. Except for the said ipse-
dixit of D.W.1, absolutely, no evidence whatsoever has been brought on
record in support of the case of the defendants. In that view of the matter, I
hold that the relationship between the parties are categorically proved.
Patta has been changed in the name of the first defendant, but it is only a
bill enabling to pay a revenue will not confer any title of the first
defendant. Once the first defendant does not have the title, the Settlement
Deed executed by him, in favour of the third defendant, will not in any
manner bind the plaintiffs.
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Appeal Suit No.947 of 2015
15.In that view of the matter, I answer issue No.1, in the affirmative
that the plaintiffs 1 & 2, the defendants 1 & 2, and the third plaintiff's
husband Subramani are the sons and daughters of the said Pappathy
Ammal. The answer to issue No.2, is that the plaintiffs are having 6/10
shares in the suit property. In view of the answer to issue No.1, issue No.3
is also answered against the defendants 1 & 3. In view of my above
findings, the Settlement Deed executed by the first defendant in favour of
his son, the third defendant is invalid . In view of my above findings, the
plaintiffs will be entitled for the declaration and the partition as prayed for.
The Trial Court has granted the reliefs of partition as well as declaration.
16.In the result the Appeal Suit is without any merits and
accordingly, it is dismissed. No costs.
22.09.2022
Index : yes/no
Speaking/Non-speaking order
klt
To
1.The I-Additional District Court, Salem.
2.The Section officer, Original side, High Court of Madras.
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Appeal Suit No.947 of 2015
D.BHARATHA CHAKRAVARTHY, J.
klt
A.S. No.947 of 2015
22.09.2022
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