A.Gopala Krishnan vs A.Krishnaveni ...1St
2023 Latest Caselaw 859 Mad

                                                                             A.S.(MD)No.53 of 2012

                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated : 23.01.2023

                                                      CORAM

                                    THE HONOURABLE MRS.JUSTICE N.MALA

                                               A.S.(MD)No.53 of 2012
                                                       and
                                             C.M.P(MD)No.7968 of 2022


                A.Gopala Krishnan                                  ... Appellant/1st Defendant

                                                         Vs

                1.A.Krishnaveni                                    ...1st Respondent/1st Plaintiff

                2.A.Tharangini                                     ...2nd Respondent/2nd Plaintiff

                3.T.Maheswari (Died)                               ...3rd Respondent/3rd Plaintiff
                (Memo presented before the Court
                on 07.11.2022 is recorded as third
                respondent died vide Court order
                dated 7.11.2022 in A.S.(MD)No.53
                of 2012)

                PRAYER: Appeal Suit filed under Section 96 of Code of Civil Procedure, to
                set aside the judgment and decree passed in O.S.No.136 of 2007 dated
                06.02.2012 on the file of the learned Additional District and Sessions Court
                Cum Fast Track No.2, Trichi.

                                  For Appellant    : Mr.S.Meenakshi Sundarambal
                                                     Senior Counsel
                                                     For Mr.M.S.Sengu Vijay
                                  For R1           : Mr.G.Sridharan
                                  For R2           : Mr.R.Aravindraj

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                                                                               A.S.(MD)No.53 of 2012

                                                     JUDGMENT

The appeal suit arises out of a judgment and decree, dated 06.02.2012

passed by the trial Court declaring the plaintiff's ¼ share in the suit A and B

scheduled properties. The unsuccessful 1st defendant is the appellant in the

appeal.

2. The facts in brief of the case are that the plaintiffs are the sisters of

the first defendant and the second defendant's deceased husband. The suit A

and B scheduled property originally belonged to one late V.Muthuachari who

had two sons Angamuthu Achari and Raju Achari. The late Muthuachari

executed a will dated 24.06.1961 bequeathing the A schedule property to

Angamuthu Achari and the B Schedule Property to Raju Achari. The said

Raju Achari died issueless and so he sold the B Schedule property before his

death to his brother Angamuthu Achari vide sale deed dated 22.08.1977.

According to the plaintiffs, after the death of Angamuthu Achari intestate the

plaintiffs, the first defendant and the husband of the second defendant each

were entitled to 1/4th share in the same. The C Schedule properties were gold

jewel and silver items worth Rs.1,00,000/- and so the plaintiffs claimed 1/4th

share in the same also. The plaintiffs therefore prayed for partition of their

1/4th share in the suit properties among other reliefs.

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A.S.(MD)No.53 of 2012

3. The second defendant, the widow of the predeceased brother though

filed a written statement remained, ex parte.

4. The first defendant filed a written statement generally denying all the

plaint averments. The first defendant further stated that though the plaintiff

referred to the Will of Muthuachari, they did not divulge the vital recitals of

the Will, dated 24.06.1961, wherein, it was clearly stated that only the male

members of Angamuthu Achari would succeed to the said scheduled

properties. As far as the C schedule property was concerned, it was the

defendant's case that it was the plaintiffs, who took away the same after their

mother's demise. The first defendant further submitted that though the

plaintiffs had no right in the suit properties, the first defendant out of good

will tried to negotiate through Panchayathars for an amicable settlement, but

the plaintiffs failed to co-operate. The defendant's specific case was that only

A and B schedule properties were available for partition and that C schedule

movables were not available. The first defendant on these and other grounds

prayed for the dismissal of the suit.

5. In the trial Court, the plaintiffs examined themselves as P.W.1 and

P.W.2 and marked Exhibit A1 to A4 and the first defendant examined himself

and did not mark any documents.

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A.S.(MD)No.53 of 2012

6. The trial Court framed the following issues:

1. thjpfs; jhthtpy; Nfhhpatz;zk; ghpfhuk; ngw mUfijAilatuh?

2. thjpfSf;F cs;s ,ju ghpfhuq;fs; vd;d?

7. The trial Court on an appreciation of the evidence both oral and

documentary on record decreed the suit as regards A and B schedule

properties alone.

8. Aggrieved by the judgment and decree of the trial Court, the first

defendant has filed the above appeal.

9. The parties will be referred to as per their rank in the suit for the sake

of convenience.

10. During the pendency of the appeal, the third defendant died, a

memo was presented to record her death as she died issueless and her husband

predeceased her.

11. The first defendant filed an application in C.M.P(MD)No.7968 of

2022 for receipt of additional evidence at the time of final hearing of the

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A.S.(MD)No.53 of 2012

appeal. The defendant in the said application prayed to receive the original

Will, dated 24.06.1961 executed by his grand father in favour of his father the

copy of which was marked as Exhibit A2 by the plaintiffs in the suit.

12. The learned counsel for the first defendant submitted that the

additional evidence was absolutely necessary to decide the controversy in the

appeal. According to the learned counsel, he was not able to get the original

Will earlier as it was in the possession of his deceased brother. The second

defendant, the wife of his deceased brother did not co-operate with him and

chose to remain exparte in the trial Court and further refused to search for the

Will inspite of his requests. Only recently that is in the month of June, she

searched and found the Will and handed it over to him. Soon thereafter, she

passed away on 24.10.2022. The learned counsel further submitted that the

plaintiffs would not be prejudiced in any way because they had already filed a

copy of the same as Exhibit A2. The learned counsel for the plaintiffs did not

dispute the above facts by filing a counter and further did not object to the

receipt of additional evidence.

13. The short point to be considered in the appeal is whether the

plaintiffs are entitled to 1/4th share in A and B Schedule properties.

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A.S.(MD)No.53 of 2012

14. At the time of hearing both the learned counsels agreed that the Will

was a vital document as it would have a bearing on the ratio of shares of the

respective parties . The learned counsels further submitted that this Court may

itself decide on the validity of the Will by taking evidence in appeal or

remand the matter to the trial Court restricting the enquiry to the validity and

genuineness of the Will.

15. I have gone through the pleadings of the parties and the entire

materials on record. In my view, the finding of the trial Court that the Suit A

Schedule properties are joint family properties and as such the plaintiffs are

entitled to 1/4th share by virtue of 2005 Amendment to Section 6 of the Hindu

Succession Act, 1956 is erroneous in the light of the recitals in the Will, dated

24.06.1961. The trial Court failed to note that it was admitted by the plaintiff

in their pleadings that A Schedule property was bequeathed by the plaintiffs'

grandfather Muthuachari to their father Angamuthu Achari under Exhibit A2,

Will dated 24.06.1961. This will also recites that the properties covered under

the Will are the self acquired properties of the testator and the same would go

to the male members. Therefore, the Will is a vital document which would

throw light on the entitlement of the plaintiff to the suit 'A' Schedule property.

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A.S.(MD)No.53 of 2012

16. As far as the B schedule properties are concerned, it is the admitted

case of both parties that it was purchased by Angamuthu Achari from his

brother, who was allotted the B Schedule property under the Will, dated

24.06.1961. Therefore, there can be no quarrel on the entitlement of the

plaintiffs to 1/4th share in B schedule property. The evidence of D.W.1, the

first defendant in this regard is note worthy.

“,e;j v2 Mtzj;jpd;gb thjpfSf;Fk;> vdf;Fk; V> gp ml;ltiz nrhj;jpy; rhprk gq;F cz;L vd;W nrhd;dhy; rhpay;y. gp nrl;A+y; kl;Lk; jhd; rhprk gq;F cz;L.”

17. In the light of the admission of D.W.1 as regards B schedule

property there is no impediment to declare the plaintiffs' 1/4th share in B

schedule property. Further, the finding of the trial Court that C schedule

properties are not available for partition and as such no decree can be passed

as regards C schedule properties is not challenged by the plaintiffs.

18. Therefore, the only issue is as regards the plaintiffs' right to A

schedule properties. The Will is not disputed by the plaintiffs as they trace the

title of Angamuthu Achari to the Will and have also produced a copy of the

same and marked it as Exhibit A2. It is the defendant's case that as per the

recitals of the Will, the plaintiffs would not be entitled to a share in the suit A

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A.S.(MD)No.53 of 2012

schedule property. In my view, the Additional evidence filed now which is the

original Will is necessary to decide the real controversy surrounding the A

schedule property. The Additional evidence is therefore admitted and taken on

record. C.M.P(MD)No.7968 of 2022 is allowed.

19. I am of the further view that the first defendant should be given an

opportunity to prove the Will in a manner known to law. I am therefore of the

opinion that the matter needs to be remanded to the trial Court for giving an

opportunity to the first defendant to mark the original Will and lead evidence

on the same. Needless to say that the plaintiffs will be given an opportunity to

contest the same by leading contra evidence.

20. In fine, the judgment and decree of the trial Court is confirmed as

far as B and C Schedule properties are concerned. The judgment and decree

of the trial Court as regards A scheduled property is set aside for the reasons

stated supra. The suit is remanded to the trial Court in so far as A schedule

property is concerned with a direction to the trial Court to reconsider the same

in the light of the additional evidence admitted by this Court by affording

opportunity to both the parties to lead evidence on the same. Considering the

limited purpose for which the remand is ordered, the trial Court is further

directed to dispose of the suit within a period of six months from the date of https://www.mhc.tn.gov.in/judis

A.S.(MD)No.53 of 2012

receipt of copy of the judgment and decree. The appeal is allowed.There shall

be no order as to costs.

23.01.2023 Index : Yes / No Internet : Yes / No sn

Note: Registry is directed to mark additional document, namely, Will, dated 24.06.1961 as Exhibit B1.

To

1.The Additional District and Sessions Court Cum Fast Track No.2, Trichy.

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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A.S.(MD)No.53 of 2012

N.MALA, J sn

A.S.(MD)No.53 of 2012

23.01.2023

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