Madras High Court
S.Kumarasamy (Died) vs P.Saravanan on 5 October, 2023
S.A.No.100 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.10.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.100 of 2017
and
CMP.No.2014 of 2017
1.S.Kumarasamy (Died)
2.Tamilselvi
3.Vigneswaran
4.Naveeneshwaran ...Appellants
(sole appellant died appellants
2 to 4 brought on record as LRs
of the deceased sole appellant
viz., Kumarasamy vide Court order
dated 15.06.2021 made in
CMP.Nos.8086, 8087 & 8088/2021
in S.A.No.100 of 2017)
Vs.
1.P.Saravanan
2.S.Raja
3.Chellammal ...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree passed in A.S.No.67 of 2013 dated
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1/12
S.A.No.100 of 2017
24.03.2016 on the file of the Sub-Court, Namakkal, confirming the judgment
and decree passed in O.S.No.1498 of 2004 dated 15.07.2013 on the file of the
Additional District Munsif Court, Namakkal.
For Appellants : Mr.P.Navaneethakrishnan
For Respondents : Mr.S.Senthil for R1
No appearance – R2
Mr.M.Premkumar for R3
JUDGMENT
The first defendant in the suit is the first appellant. The first
respondent filed a suit for partition claiming 1/12th share in the suit property.
The suit was decreed by the trial Court. The appeal filed by the first defendant
was also dismissed. Aggrieved by the concurrent findings of the Courts below,
the first defendant has come by way of this Second Appeal. Pending Second
Appeal the first defendant died and his legal representatives were brought on
record as appellants 2 to 4.
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S.A.No.100 of 2017
2. According to the first respondent/plaintiff the suit property
originally belonged to maternal grand father of the plaintiff namely one
Sellappan @ Sellappa Gounder @ Sevitturaja. The first defendant in the
suit/first appellant and the second respondent/second defendant are the sons of
the said Sellappan through his second wife Sellammal. The third defendant in
the suit namely, the third respondent is the daughter born to said Sellappan
through his first wife Kaliyammal. The first respondent/plaintiff is the son of
the third respondent Chellammal. After birth of the third respondent her
mother and the first wife of Sellappan passed away. Hence, Sellappan married
another Sellammal as his second wife. The appellant and the second
respondent are the sons born to the second wife of Sellappa Gounder. The suit
properties are the ancestral properties of the said Sellappan and after his death
his 1/3rd share in the property devolved on his sons namely the first appellant
and the second respondent. The third respondent his daughter and his second
wife Sellammal are entitled to 1/12th share each. The second wife of Sellappan
namely Sellammal executed a gift deed on 19.04.2004 in favour of the plaintiff
in respect of her 1/12th share in the suit property. Thus, the plaintiff claims
1/12th share in the suit property and laid the present suit seeking preliminary
decree for partition.
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S.A.No.100 of 2017
3. The appellant/first defendant filed a written statement and
raised a plea that the second wife of Sellappan namely Sellammal orally
released her 1/12th share in his favour even before the execution of gift
settlement deed in favour of the first respondent. Therefore, it is his specific
case that Sellammal had no right over the property at the time of execution of
gift settlement deed in favour of the first respondent.
4. The appellant also filed additional written statement raising a
plea that the gift deed in favour of the first respondent/plaintiff was obtained
by misrepresentation. The second respondent/second defendant filed a written
statement agreeing for partition. The third respondent/third defendant filed a
written statement claiming equal share along with her brothers namely, the
appellant and the second respondent by virtue of Central Act 39 of 2005.
5. At the time of trial, the first respondent was examined as PW1
and attetstor to the gift deed relied on by him, which was marked as Ex.A1,
was examined as PW2. Five documents were marked on behalf of the first
respondent as Ex.A1 to Ex.A5. The appellant and the third respondent were
examined as DW1 & DW5. The appellant also examined three other witnesses
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S.A.No.100 of 2017
as DW2 to DW4. One document was marked as Ex.B1 on the side of the
appellant.
6. The trial Court on appreciation of oral and documentary
evidence came to the conclusion that the first respondent/plaintiff succeeded in
proving the execution of gift deed in his favour by Sellammal. Therefore, the
trial Court granted a decree for partition 1/12th share in favour of the first
respondent. Aggrieved by the same, the appellant herein filed an appeal in
A.S.No.67 of 2013 on the file of the Sub Court, Namakkal. The first Appellate
Court concurred with the findings of the trial Court and dismissed the appeal.
Aggrieved by the concurrent findings, the first defendant has filed this Second
Appeal.
7. At the time of admission, this Court formulated the following
substantial questions of the law:
“1.Whether the Courts below are right in law
decreeing the suit for partition when the settlement deed
marked as Ex.A1, based on which the right to the suit
property is claimed by the first respondent, stood cancelled by
Ex.B1?
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S.A.No.100 of 2017
2. Whether the Courts below are right in law in
decreeing the suit even without framing any issue as to
pleading raised in the additional written statement that the
settlement deed in favour of the plaintiff has been cancelled
and rendering a finding upon it?
3. Whether the Courts below are right in law in
decreeing the suit when the plaintiff had failed to discharge
the burden cast upon him to prove that settlement deed was
not obtained fraudulently by examining the author of Ex.A1
especially when it is pleaded that the plaintiff get Ex.A1
fraudulently?”
8. The learned counsel appearing for the appellant submitted that
the first respondent failed to prove execution of Ex.A1 deed by any acceptable
evidence. The learned counsel further submitted that the property covered by
the gift deed is situated at Muthalaipatti Village, Namakkal Taluk. However,
the document was typed by a Typist at Bhavani. The Courts below without
taking into consideration the factual aspect erroneously came to the conclusion
that the first respondent proved the execution of gift deed. The learned counsel
further submitted that the appellant raised a specific plea in the additional
written statement regarding the cancellation of the gift deed executed in favour
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S.A.No.100 of 2017
of the first respondent and the misrepresentation employed by the first
respondent at the time of execution of gift deed in his favour and the same had
not been considered by the Courts below.
9. The learned counsel for the contesting first respondent by
taking this Court to the evidence of PW1 & PW2 submitted that the execution
of gift deed has been proved by the first respondent by leading acceptable
evidence. The learned counsel further submitted that the Courts below on
appreciation of evidence of attestor to Ex.A1 had given factual findings that
the execution is proved. Therefore, the appellants have not made out any case
to interfere with the concurrent findings of the Courts below.
10. The first respondent/plaintiff filed the present suit for partition
based on the gift deed executed by his grand father's second wife Sellammal.
In order to prove the execution of gift deed he examined one Jeevanantham,
who attested the gift deed. The attestor to Ex.A1 in his evidence clearly
deposed that at the time of execution of gift deed in favour of the first
respondent, the settlor namely, Sellammal was in sound state of mind and she
voluntarily executed the documents.
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S.A.No.100 of 2017
11. In the original written statement filed by the appellant on
28.03.2005 the appellant had not pleaded any misrepresentation on the part of
the first respondent. On the contrary, he raised a specific plea that Sellammal
orally released her share in favour of his father and therefore, he disputed title
of Sellammal to execute a gift deed on the date of execution of the document.
The plea of misrepresentation was not at all raised in the original written
statement filed by the appellant. The plea of misrepresentation was raised by
the appellant only in his additional written statement which was filed on
29.11.2011.
12. In the mean time, the settlor of the plaintiff namely Sellammal
executed a document on 25.05.2010 cancelling the settlement deed in favour
of the plaintiff. Unilateral cancellation of gift deed is unknown to law. In the
gift deed executed by Sellammal in favour of the first respondent/plaintiff she
had not reserved her right to cancel the gift deed. Therefore, the subsequent
cancellation of the gift deed by Sellammal pending present suit has no legal
sanctity and the same has to be ignored. Further, there is no whisper about the
alleged misrepresentation in the cancellation deed executed by Sellammal on
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S.A.No.100 of 2017
25.05.2010. For the first time only in the additional written statement, the
appellant raised the plea of misrepresentation. It is settled law that when a
person alleges misrepresentation it is for him to prove the same by leading a
cogent evidence.
13. In the case on hand, the appellant failed to prove the plea of
misrepresentation by leading any acceptable evidence. First of all, he failed to
mention about the misrepresentation in the original written statement.
Secondly, in the cancellation deed executed by Sellammal, there is no whisper
about the alleged misrepresentation. Hence, in such circumstances, the plea of
misrepresentation raised by the appellant in his additional written statement is
not acceptable to this Court in the absence of convincing evidence. Therefore,
the conclusion reached by both the Courts below based on the appreciation of
attestor's evidence that execution of Ex.A1 gift deed in favour of the first
respondent was proved need not be interfered with. Once this Court comes to
the conclusion that Ex.A1 gift deed in favour of the first respondent is a valid
document, he is entitled to 1/12th share in the suit properties.
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S.A.No.100 of 2017
14. The third respondent herein raised a plea by claiming equal
share in the suit property by virtue of Act 39 of 2005. Since 1/12th share of
Sellammal was gifted to the first respondent by registered document even prior
to coming into force of the said Act, the Courts below has rejected the plea
raised by the third respondent. The third respondent being satisfied with the
decree has not chosen to file any appeal. In these circumstances, the said
finding of the Courts below also need not be disturbed. In view of the
discussions made earlier, all the substantial questions of law are answered
against the appellant and consequently, the Second Appeal is dismissed by
confirming the judgment and decree passed by the Courts below.
15) a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the First Appellate Court.
b) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
05.10.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
dna
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S.A.No.100 of 2017
To
1.The Sub-Court, Namakkal.
2.The Additional District Munsif Court, Namakkal.
https://www.mhc.tn.gov.in/judis
S.A.No.100 of 2017
S.SOUNTHAR, J.
dna
S.A.No.100 of 2017
and
CMP.No.2014 of 2017
05.10.2023
https://www.mhc.tn.gov.in/judis
