Madras High Court
Lakshmi … vs P.Ponnusamy on 2 August, 2024
A.S.No.241 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.07.2024
PRONOUNCED ON : 02.08.2024
CORAM
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
A.S.No.241 of 2007
Lakshmi … Plaintiff/Appellant
Vs
1.P.Ponnusamy
2.P.Kaliappan
3.K.Selvaraj
4.K.Sundarrajan
5.Bakyam
6.Kasiappan (Died)
7.Nanjammal … Defendants/Respondents
R3 to R5 who were already on record, are recorded as Lrs of deceased R6
and R7 is brought on record as Lrs of deceased R6, vide order of Court
dated 12.07.2024 made in M.P.No.1 of 2011 in A.S.No.241 of 2007.
PRAYER: This First Appeal has been filed Under Section 96 of the Civil
Procedure Code, against the judgment and decree of the Additional District
Cum Sessions Court at Coimbatore, dated 29.12.2006 in O.S.No.76 of
2005.
For Appellant : Mr.P.S.Seetharaman
For Respondents : Mr.M.Kalyanasundaram Sr. Counsel for
Mr.R.Vasudevan for RR1 to 5 and 7
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1/15
A.S.No.241 of 2007
R6- Died
JUDGMENT
The Appeal Suit had been filed by the unsuccessful plaintiff
challenging the judgment and decree made in O.S.No.76 of 2005, wherein
her claim for a partition of the scheduled mentioned property had been
rejected.
2. The brief facts of the case are that the plaintiff, defendants 1&2 are
brothers and sister and defendants 3 to 6 are the legal heirs of their
pre-deceased sister.
3. The case of the plaintiff is that the scheduled mentioned property
belonged to her father one Pache Gounder and that after his demise, the
defendants 1 and 2 have been denying the rightful share to the plaintiff on
one protext or another. She had originally initiated a Suit in O.S.No.454 of
1992, which after a settlement between the parties was withdrawn by the
plaintiff as being settled out of Court. The settlement that was arrived at
between the parties was that they would give her rightful shares in the
properties. However, even after a long time, the defendants 1 and 2 have
been evading the partition of the properties. While that being so, in the
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year 2002, a partition deed was sought to be registered by the defendants 1
and 2 in which they had also obtained the signature from the plaintiff by
giving misleading statements. Just before the registration, the plaintiff had
found that she had been only allotted 0.46.5 acres of land. Upon knowing
that she had been given a lesser share than that what she is entitled to, the
plaintiff had refused to present the same for registration and also made
objection to the concerned Registrar. Therefore, the said partition deed had
not been registered. Thereafter, she had filed the present Suit. The said
claim had been opposed by the first and second defendants by contending
that their father Pache Gounder had executed settlement deeds in respect of
certain of the properties during his life time and that he had also executed a
registered Will in their favour. Originally, when the plaintiff had filed a Suit
for partition, the same was also resisted to by the defendants by relying
upon a receipt that had been issued by the plaintiff, as also the defendants 3
to 6, wherein they have recognised the Will that had been executed by the
father and were also given exgratia payment of Rs.25,000/- each.
Suppressing all these facts, the plaintiff had filed the Suit for partition.
4. To substantiate her claim, the plaintiff had examined herself as
PW1 and marked documents as Ex.P.1 to Ex.P.10; defendants 1 & 2 had
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examined themselves as DW-1 and DW-3; the 4th defendant was examined
as DW-5; the attesting witness of the Will (Ex.B.9) was examined as DW-2
and the Doucment Writer of the said Will was examined as DW-4. They
had also marked exhibits as Ex.D1 to Ex.D9.
5. The Trial Court after considering the facts of the case based upon
the pleadings had framed issues with regard to the validity of the Will and
whether the plaintiff was entitled for a share in the property, apart from that
one more issue was also framed, as to whether any cause of action. The
Trial Court after trial based upon the said issues framed, had come to a
conclusion that the Will was genuine and that the plaintiff was not entitled
for any share in the property and had dismissed the Suit. Against which,
the present Appeal Suit had been preferred.
6.Heard Mr.P.S.Seetharaman, learned counsel appearing for the
appellant and Mr.M.Kalyanasundaram, learned Senior counsel appearing
for Mr.R.Vasudevan, learned counsel appearing for the respondents 1 to 5
and 7.
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7. The learned counsel appearing for the plaintiff had contended that
the Pache Gounder had died interstate and the alleged Will relied upon by
the defendants cannot be said to be a true Will, as even the attesting witness
and the scribe, who were examined to substantiate the said Will had
deposed inconsistently. He would submit that the sister of the plaintiff,
defendants 1 & 2 had died much before, but however, DW-3 in his evidence
has categorically stated that he had seen both the daughters of Pache
Gounder. He would further submit that the Pache Gounder was ill and
indisposed and there was no possibility for him to go to Registration Office
for registering the document. It has been admitted by DW-2 and
DW-4 that the Pache Gounder by himself had gone to the Registration
Office and instructed the DW-4 to prepare the Will and had called upon the
DW-2 to be the witness to the Will. Since he was very old he could not
independently all do it by himself, much less move out of his home and
therefore, even assuming that he had gone to the Registration office, it
could be only under the compulsion of DW-1 & DW-3 and the Will could
not have been executed out of his free will. He would further submit that
the Pache Gounder used to sign the documents and but in the Will, he had
only affixed his left thumb impression. There is no evidence as to why he
had affixed his left thumb impression. He would further submit that the
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original Will had not been produced before the Court. Had it been
produced, the plaintiff would have proved that the said alleged thumb
impression does not belong to Pache Gounder. He would further submit
that the reliance of Ex.B.1 relied upon by the defendants cannot be put
against the plaintiff, as it is only a receipt for a sum of Rs.25,000/-. Even if
it is admitted, then the same cannot be a document, which could be said to
be a document of relinquishing her right with the property, as it is under
law, that any property could be relinquished could only be by was of a
registered document, since admittedly, the value of the property is more
than Rs.100/-. Therefore, such document is compulsory registable
document and the Ex.B.1 cannot have been relied upon by the Court to
deny the claim of the plaintiff. He would further contend that when the
defendants have admitted to the execution of a partition deed in the year
2002, they have not explained as to why inspite of the Will executed by the
father, under which they had inherited all the properties, there was a
necessity for execution of a partition deed including all the properties. The
Court below had erroneously appreciated the facts of the case and had not
considered the relevant evidences and had erroneously come to a conclusion
that there was no cause of action for the plaintiff to institute the Suit.
Hence, he would seek interference of the judgment and decree of the Court
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below and seek grant of partition of the Suit Scheduled Properties in favour
of the plaintiff.
8. Countering his arguments, the learned Senior counsel appearing
for the respondents would contend that the plaintiff had originally filed a
Suit in the year 1992 and having come to know of the fact of the execution
of the Will by the father, she had executed Ex.B.1 indicating that she had
accepted the Will and had also received a sum of Rs.25,000/-. The plaintiff
based upon the said understanding had also withdrawn the Suit, as settled
out of the Court. This factor of executing the Ex.B.1 had been suppressed
by the plaintiff in the Suit. He would further contend that under Ex.B.1,
the plaintiff had the knowledge of the Will, but she had not chosen to seek
any declaration with regard to the validity of the Will. The defendants have
also in the written statement fortified their rights of inheritence of the Suit
Scheduled Properties based upon the Will, even thereafter the plaintiff had
not chosen to seek any amendment of the prayer to challenge the Will. That
apart, he would submit that the Will is a registered Will and the defendants
were examined as DW-1 and DW-3, the attestor and the scribe of the Will
were also examined as DW-2 and DW-4 to prove the Will. There has been
no inconsistency in the deposition of DW-2 and DW-4 as regards to the
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execution of the Will by the Pache Gounder and therefore, the Will had
been proved and when the Will had been proved, the plaintiff even though
a legal heirs of Pache Gounder would not be entitled to any share in the suit
schedule property. He would further contend that the plaintiff had
contended that she had only withdrawn the Suit based upon the promise
made by the defendants to give her the share in the property. The plaintiff
had all along waited till 2002, to institute the Suit. She had neither made
any claim immediately thereafter nor she had not taken any steps to
approach the Court concerned to recall the judgment and decree, as the
settlement that had been reached outside the Court, had not been honoured
by the defendants.
9. He would also further contend that defendants 3 to 6, who are the
legal heirs of the pre-deceased sister have also executed a similar receipt
and they were also parties to the Suit in the year 1992 filed by the plaintiff.
D-4 was examined as DW-5 and he has also supported Ex.B.9 and had
clearly indicated that there is no claim against the Suit Schedule Properties
as they have given up their right by accepting the Will executed by the
Pache Gounder. The plaintiff having accepted the same, has now turned
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upon to claim the property to which she was not entitled to in view of the
raising market value of the lands.
10. The learned Senior counsel appearing for the respondents would
vehemently contend that the Suit itself had been filed suppressing Ex.B.1
and only thereafter, the plaintiff had been trying to give reasons as to why
Ex.B.1 had been executed, and had concocted the reason for withdrawal of
the Suit. Therefore, he would submit that there is no infirmity or illegality
in the judgment and decree made by the Court below, which warrants
interference by this Court.
11. I have considered the rival submissions made by the learned
counsels appearing on either side and perused the materials available on
record.
12. The following issues now arise for consideration:-
(i)Whether Ex.B.8 the said Will executed by the Pache Gounder
had been proved?
(ii)Whether the plaintiff would be entitled for a share in the Suit
Schedule Property?
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13. Since the issues that had been framed by this Court are
interconnected i.e., if the Will is held to be proved then the plaintiff would
not be entitled for any share in the property, but on the other hand, if the
Will is held to be not proved, then the plaintiff would be entitled for a share
in the property.
14. The claim for partition had been resisted by the defendants 1 and
2 on the strength of the Will executed by Pache Gounder under Ex.B.8,
dated 10.09.1986. Apart from the same, the Suit was also resisted based
upon the Ex.B.1, dated 21.01.1994, executed by the plaintiff in favour of
the defendants 1 and 2 and under Ex.B.9, dated 21.02.1994, executed by
defendants 3 to 6.
15. It is to be noted that the defendants 3 to 6 are the legal heirs of
the pre-deceased sister and they have admitted Ex.B.9. To prove Ex.B.8,
Will, the defendants have examined DW-2 one of the attesting witness and
DW-4 who was the document writer. It is also to be noted that Ex.B.8 is a
registered Will. The learned counsel appearing on behalf of the
plaintiff/appellant had vehemently contended that there has been
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contradictions particularly on the facts relating to the family of Pache
Gounder and the statments made by the witnesses particularly DW-2 and
DW-4 cannot be taken as a valuable evidence to substantiate the execution
of Will.
16. I have also perused the evidences of both DW-2 and DW-4. As
rightly pointed out by the learned counsel appearing for the
plaintiff/appellant there were some contradictions as to the family of Pache
Gounder. Even though such contradiction is explicit, both the witnesses
have spoken about the execution of the Will by Pache Gounder in clear
terms. Further, their evidences with regard to the execution of Will cannot
also be brushed aside for the simple reason that the said Will had been
registered in the manner known to law. The plaintiff had not dislodged the
evidences of DW-2 and DW-4 by drawing any contradictions in the
execution or registration of the Will. When that being so, I do not propose
to discard the Will that had been held to be proved by the Court below.
Therefore, I find no reasons to interfere with the findings of the Trial Court
as regards to the validity of the Will.
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17. It is also to be noted that the plaintiff had originally filed a Suit
in O.S.No.454 of 1992 and the same had been withdrawn by her by filing a
memo indicating that the matter had been settled out of Court. Prior to
withdrawal of the Suit, the plaintiff had also executed a receipt (Ex.B.1) of
Rs.25,000/-, as exgratia. The said receipt also indicates that she
acknowledges various settlement deeds and the Will executed by her father
Pache Gounder. Even though she has made a claim that the said receipt
had been fradulently obtained by the defendants 1 and 2, she had not
produced any evidence to substantiate such claim. If it was a claim that the
same had been obtained fradulently, there was no necessity for her to
withdraw the Suit as being settled out of Court.
18. Be that as it may, it is also to be noted that she had not taken any
steps whatsoever, till in the year 2005, when she had initiated the present
Suit. Even though she claims that in the year 2002, there was a partition
deed that had been made, she had not also produced any substantial
evidence both oral and documentary to drive home her contentions, the
reasons for which such document was sought to be made and why the same
had not fructified. Even if this Court is to be accept the reasons assigned
by her, there is no reason elucidated by the plaintiff as to why she had
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initiated the Suit after more than three years of the alleged partition in the
year 2002.
19. For the foregoing reasons, I do not find any infirmity which
warrants interference by this Court in the well considered judgment and
decree that is impugned herein.
20. In fine, the Appeal Suit fails and is accordingly dismissed.
However, there shall be no order as to costs.
02.08.2024
Index: Yes/No
Speaking Order/Non Speaking Order
Neutral Citation:Yes/No
pbn
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To
Additional District cum Sessions Court, FTC No.II, Coimbatore.
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K.KUMARESH BABU,J.
pbn
02.08.2024
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