Madras High Court
C.Lakshmi vs A.Gowri on 11 October, 2023
S.A.Nos.379 and 380 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.Nos.379 and 380 of 2017
and C.M.P.No.8863 of 2017
S.A.No.379 of 2017:
1.C.Lakshmi
2.C.Janaki
3.C.Madhanraj (died)
4.Meena
5.Minor Akash
Rep by his next friend/mother/natural guardian
S/o. C.Madhanraj
6.Minor M.Delfina Angel
Rep by her next friend/mother/Natural guardian
D/o. C.Madhanraj ... Appellants
(A4 to A6 bring on record as Legal Representatives of
the deceased A3 viz., C.Madhanraj vide Court order
dated 21.02.2022 made in C.M.P.Nos.12217 and 12236
of 2021 in S.A.Nos.379 and 380 of 2017)
vs.
1.A.Gowri
1/16
https://www.mhc.tn.gov.in/judis
S.A.Nos.379 and 380 of 2017
2.A.Kavitha
3.Amul
4.Jyothi ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and decree dated 07.10.2016 passed in
A.S.No.83 of 2015 on the file of the XV Additional City Civil Judge,
Chennai confirming the Judgment and decree dated 24.11.2014 made in
O.S.No.6392 of 2012 on the file of XVI Assistant City Civil Judge,
Chennai.
For Appellants : Mr.S.Mukunth
Senior Counsel
for Mr.K.Venkatasubban
For Respondents : No Appearance
S.A.No.380 of 2017:
1.C.Lakshmi
2.C.Janaki
3.C.Madhanraj (died)
4.Meena
5.Minor Akash
Rep by his next friend/mother/natural guardian
S/o. C.Madhanraj
https://www.mhc.tn.gov.in/judis
S.A.Nos.379 and 380 of 2017
6.Minor M.Delfina Angel
Rep by her next friend/mother/Natural guardian
D/o. C.Madhanraj ... Appellants
(A4 to A6 bring on record as Legal Representatives of
the deceased A3 viz., C.Madhanraj vide Court order
dated 21.02.2022 made in C.M.P.Nos.12217 and 12236
of 2021 in S.A.Nos.379 and 380 of 2017)
vs.
1.C.Saraswathi
2.A.Gowri
3.A.Kavitha
4.Amul
5.Jyothi ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and decree dated 07.10.2016 passed in
A.S.No.84 of 2015 on the file of the XV Additional City Civil Judge,
Chennai confirming the Judgment and decree dated 24.11.2014 made in
O.S.No.4864 of 2012 on the file of XVI Assistant City Civil Judge,
Chennai.
For Appellants : Mr.S.Mukunth
Senior Counsel
for Mr.K.Venkatasubban
For Respondents : No Appearance
https://www.mhc.tn.gov.in/judis
S.A.Nos.379 and 380 of 2017
COMMONJUDGEMENT
These second appeals are arising out of suit for partition and suit for
declaration that the Settlement Deed allegedly executed by the appellants in
favour of the 1st respondent is null and void and for consequential
injunction.
2. The appellants herein filed a suit for partition claiming 1/6 share in
the suit property in O.S.No.6392 of 2012 on the file of the XVI Assistant
City Civil Court, Chennai. The said suit was dismissed by the Trial Court
and the findings of the Trial Court was confirmed by the First Appellate
Court. Aggrieved by the concurrent findings against them, the appellants
have filed S.A.No.379 of 2017.
3. The appellants also filed a suit for declaration that the Settlement
Deed allegedly executed by them dated 07.03.2003 in favour of the 1st
respondent was null and void and for consequential injunction restraining
the respondents from interfering with their possession in O.S.No.4864 of
2012 on the file of the XVI Assistant City Civil Court, Chennai. The said
suit was dismissed by the Trial Court and the findings of the Trial Court was
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S.A.Nos.379 and 380 of 2017
affirmed by the First Appellate Court. Aggrieved by the same, the appellants
have filed S.A.No.380 of 2017.
4. When the second appeals came up for hearing on 09.10.2023, there
was no representation for the respondents. This Court after hearing the
arguments of learned Senior Counsel appearing for the appellants,
adjourned these matters to today (i.e.,11.10.2023) in order to give an
opportunity to the respondents to putforth their arguments. Even today,
when the matters are called, there was no representation for the respondents
in the morning. Therefore, the matters are passed over and called in the
afternoon. Even in the afternoon, there is no representation for the
respondents. Therefore, this Court proceeds to dispose of these second
appeals based on the materials available on record.
5. According to the appellants/plaintiffs, the suit property was
purchased by father of the appellants 1 to 3 namely M.Chandrakesan in the
name of appellants 1 to 3 and children of his second wife namely
respondents 4 and 5 and deceased Maragatham. The children of the
deceased Maragatham are arrayed as respondents 2 and 3. The second wife
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S.A.Nos.379 and 380 of 2017
of M.Chandrakesan is arrayed as 1st respondent. Since the property was
purchased in the name of appellants 1 to 3 and children of 1st respondent,
the appellants are entitled to 1/6 share each in the suit property. It is
specifically alleged by the appellants that the respondents created a
Settlement Deed as if, the undivided share of the appellants were settled by
them in favour of 1st respondent by executing a gift settlement on
07.03.2003. Since the said document was concocted and forged one, the
appellants 1 to 3 were constrained to file a suit for declaration and
injunction as mentioned above, apart from seeking the relief of partition.
6. The respondents herein filed a written statement and resisted the
suits on the ground that the Settlement Deed was executed by appellants 1
to 3 out of their own wish and therefore, the appellants are not entitled to
relief prayed for by them. The respondents also claimed that 1st respondent
is the legally wedded wife of said M.Chandrakesan and mother of the
appellants was not a legally wedded wife of M.Chandrakesan.
7. Before the Trial Court a simultaneous trial was conducted and
common judgment was passed in both the suits. The 1st appellant was
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S.A.Nos.379 and 380 of 2017
examined as PW.1 in both the suits. In the partition suit filed by the
appellants 1 to 3 in O.S.No.6392 of 2012, 11 documents were marked on
behalf of the appellants as Exs.A1 to A11. In the declaration and injunction
suit filed by the appellants 1 to 3 in O.S.No.4864 of 2012, 7 documents
were marked on behalf of the appellants as Exs.A1 to A7. On behalf of the
respondents, no witnesses were examined and no documents were marked.
8. The Trial Court on appreciation of oral and documentary evidences
available on record, came to the conclusion that appellants 1 to 3 failed to
prove that Settlement Deed impugned by them was a forged document and
consequently, by upholding the validity of the Settlement Deed dismissed
both the suits. Aggrieved by the same, the appellants filed two appeals in
A.S.Nos.83 and 84 of 2020 on the file of the XV Additional City Civil
Court, Chennai. The First Appellate Court by affirming the findings of the
Trial Court, dismissed both the appeals. Aggrieved by the same, the
appellants are before this Court.
9. At the time of admission, my predecessor formulated the following
substantial question of law:-
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S.A.Nos.379 and 380 of 2017
“(1) Whether the courts below are right in granting
relief to the plaintiff on the basis of settlement deed, which is
specifically disputed without even shifting the burden on the
defendant to prove the settlement Deed by examining an
attesting witness?”
10. After considering the question of law framed at the time of
admission, this Court finds a typographical error in the question, therefore,
it shall be read as follows:-
“(1) Whether the courts below are right in refusing
relief to the plaintiff on the basis of settlement deed, which is
specifically disputed without even shifting the burden on the
defendant to prove the settlement Deed by examining an
attesting witness?”
11. The learned Senior Counsel appearing for the appellants
elaborating the substantial question of law framed at the time of admission,
submitted that the Settlement Deed is a document, which requires attestation
and hence, as per Section 68 of the Indian Evidence Act, 1872, the same can
be proved only by calling one of the attestor to the document. In the case on
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S.A.Nos.379 and 380 of 2017
hand, the respondents, who claim right under the Settlement Deed failed to
prove the same by examining any one of the attestor. In such circumstances,
the Settlement Deed pressed into service by the respondents has not been
proved in the manner known to law and consequently, both the Courts
below ought not to have non-suited the appellants.
12. It is not in dispute the suit property was purchased in the name of
the appellants 1 to 3, the respondents 4, 5 and deceased Maragatham. The
legal representatives of deceased Maragatham are shown as respondents 2
and 3. With regard to purchase of the property in the name of appellants 1 to
3 and above mentioned respondents are not in dispute. The specific case of
the respondents is that the appellants 1 to 3 already settled their undivided
interest in the suit property in favour of the 1st respondent. In such
circumstances, the person, who claims right under Settlement Deed has to
prove the same. Only if the Settlement Deed under which the respondents
are claiming right is proved in the manner known to law, the burden will
shift to the appellants/plaintiffs to prove alleged forgery.
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S.A.Nos.379 and 380 of 2017
13. Section 68 of the Indian Evidence Act, 1872, reads as follows:-
“68. Proof of execution of document required by law to
be attested.- If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document, not
being a Will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purpose to have
been executed is specifically denied.]”
14. A reading of above provision would make it clear that if a
document other than a Will which requires attestation is disputed by any
person, the person, who claims right under the said document shall prove
due execution of the same by calling any one of the attestor to the
document. The Settlement Deed is a document, which requires attestation as
per Section 123 of the Transfer of Property Act, 1882.
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S.A.Nos.379 and 380 of 2017
15. A perusal of the pleadings of the parties would make it clear that
the execution of the Settlement Deed was specifically disputed by the
appellants in their pleadings. It is their specific stand that the respondents by
committing forgery and impersonation concocted settlement deed in their
favour as if, the same had been executed by the appellants 1 to 3. In such
circumstances, it is incumbent on the respondents to prove due execution of
Settlement Deed as per the provisions of Section 68 of the Indian Evidence
Act, 1872, by calling any one of the attestor to the document.
16. In the case on hand, the respondents failed to examine any
witnesses and they also failed to produce any documents. It is stated that
pending first appeal, the appellants filed an application in C.M.P.No.87 of
2015 for production of original of the Settlement Deed relied on by the
respondents. The said application was considered by the First Appellate
Court along with appeals and the same was also dismissed.
17. The Trial Court as well as the First Appellate Court by
overlooking Section 68 of the Indian Evidence Act, 1872, erroneously
casted the burden on the appellants 1 to 3 and observed that the appellants 1
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S.A.Nos.379 and 380 of 2017
to 3 failed to prove the forgery pleaded by them. Even assuming the
appellants 1 to 3 failed to prove the forgery pleaded by them, that will not
confer any right on the respondents as they miserably failed to prove the
Settlement Deed by examining one of the attestor to the document. The
question of proving forgery will arise only if settlement deed is proved in
the manner known to law.
18. This Court in Beryl Dhinakaran vs. D. Albert reported in 2016
(1) MWN (Civil) 518 and Tamilkodi v. N. Kalaimani reported in 2015 (4)
CTC 771, while considering the scope and ambit of Section 68 of the Indian
Evidence Act, 1872, categorically held that it is the duty of the beneficiary
of the Settlement Deed to prove the execution of the same by calling any
one of the attestor to the document, especially when execution of settlement
is disputed.
19. In the case on hand, as mentioned earlier, the respondents failed
to prove the Settlement Deed dated 07.03.2003 in the manner known to law.
In such circumstances, conclusion reached by both the Courts below that
appellants are not entitled to relief prayed for on the assumption that the
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S.A.Nos.379 and 380 of 2017
settlement was proved is vitiated by error of law and hence, liable to be set
aside.
20. The appellants are found to be co-owners of property along with
respondents 2 to 5, if settlement deed is ignored. Hence, respondents are not
entitled to alienate suit properties including the share of appellants. Hence,
there shall be a decree for injunction restraining respondents from alienating
suit property by including share of appellants.
21. In view of the discussions made earlier, the substantial question
of law framed at the time of admission is answered in favour of the
appellants and against the respondents. Accordingly, both the second
appeals are allowed.
In Nutshell:-
(i) The Second Appeal in S.A.No.379 of 2017 is allowed by setting
aside the judgment and decree passed by both the Courts below and the
preliminary decree for partition is granted in favour of the appellants by
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S.A.Nos.379 and 380 of 2017
declaring 1/6 share each. As far as the prayer for mesne profits are
concerned, the parties are relegated to the separate proceedings.
(ii) The Second Appeal in S.A.No.380 of 2017 is allowed by setting
aside the judgment and decree passed by both the Courts below and the
appellants/plaintiffs are entitled to declaration as prayed for. The appellants
are also entitled to consequential relief of injunction against alienation as
indicated above.
(iii) Consequently, the connected civil miscellaneous petition is
closed.
(iv) In the facts and circumstances of these cases, there will be no
order as to costs.
11.10.2023
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
dm
https://www.mhc.tn.gov.in/judis
S.A.Nos.379 and 380 of 2017
To
1.The XV Additional City Civil Court,
Chennai.
2.The XVI Assistant City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.Nos.379 and 380 of 2017
S.SOUNTHAR, J.
dm
S.A.Nos.379 and 380 of 2017
11.10.2023
https://www.mhc.tn.gov.in/judis
