Madras High Court
M.Sivasamy vs P.Neelamani on 4 February, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.1346 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2025
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A.No.1346 of 2010
and
CMP.Nos. 1 of 2010 & 3379 of 2022
1.M.Sivasamy
2.M.Mohankumar ... Appellants
Vs
1.P.Neelamani
2.P.Chandrasekar
3.P.Yuvaraj
4.Papathi Alias Subbulaxmi ... Respondents
*A3 transposed as R4 vide Court Order dated 24.01.2022 made in
CMP.Nos.21814 & 21815 of 2021 in S.A.No.1346/10 (RPAJ).
PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure
Code, against the Judgment and decree dated 21.04.2010 in A.S.No.134 of
2009 on the file of First Additional District Court, Coimbatore, confirming
the judgement and decree dated 06.04.2009 in O.S.No.283 of 2006, on the
file of the II Additional Subordinate Court, Coimbatore.
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S.A. No.1346 of 2010
For Appellants : Mr.S.Jaganathan
For R1 to R3 : Mr.K.Krishna kumar
for M/s. Sarvabhavam Associates
For R4 : Mr.R.Dilli Kumar
JUDGMENT
The appellants have filed this Second Appeal against the judgment
and decree dated 21.04.2010 in A.S. No. 134 of 2009 on the file of the First
Additional District Court, Coimbatore, confirming the judgment and decree
dated 06.04.2009 in O.S. No. 283 of 2006 on the file of the II Additional
Subordinate Court, Coimbatore.
2. Heard Mr. S. Jaganathan, learned counsel for the appellants,
Mr.K.Krishna Kumar, learned counsel appearing for M/s. Sarvabhavam
Associates for R1 to R3, and Mr. R. Dilli Kumar, learned counsel appearing
for R4, and perused the material available on record.
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3. For the sake of convenience, the parties herein are referred to as
they were ranked in the suit.
4. The appellants are the defendants in O.S. No. 283 of 2006, filed by
the respondents 1 to 3 /plaintiffs seeking partition and claiming 1/4th share
in the suit property. The plaintiffs contended that the suit property was the
absolute property of the late Angathal, who died intestate, leaving behind
three sons, one daughter, and the legal heirs of her predeceased son,
Prammalingam.
5. The defendants D1 and D2 disputed the plaintiffs' claim, asserting
that Angathal did not die intestate but had executed a settlement deed dated
13.02.1995 in favor of D1 and D2 (appellants 1 and 2) during her lifetime.
They further contended that they had been in possession and enjoyment of
the property ever since and, therefore, denied the plaintiffs' right to any
share.
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6. Both parties adduced oral and documentary evidence. Upon
considering the arguments and evidence from both sides, the learned Trial
Judge decreed the suit, holding that the settlement deed relied upon by the
defendants was suspicious and not voluntarily executed by the alleged
settlor, Angathal. Consequently, the court held that the plaintiffs were
entitled to 1/4th share as prayed for.
7. Challenging the said findings, the defendants filed A.S. No. 134 of
2009 before the First Additional District Judge, Coimbatore. However, the
First Appellate Judge confirmed the findings of the Trial Court and
dismissed the appeal. Aggrieved by the concurrent findings of both courts,
the unsuccessful defendants have preferred this Second Appeal.
8. The brief facts of the case are as follows:
Late Angathal, wife of Marappan, had three sons namely, Sivasamy
(D1), Prammalingam (deceased), and Mohankumar (D2) and a daughter,
Pappathi @ Subbulaxmi (D3). The first plaintiff is the wife of
Prammalingam, while the second and third plaintiffs are their children.
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Prammalingam predeceased his mother, Angathal, on 04.01.2000, leaving
behind the plaintiffs as his legal heirs. The relationship between the
plaintiffs and the defendants is admitted. It is an undisputed fact that the
suit property absolutely belonged to Late Angathal by virtue of a registered
sale deed dated 04.06.1973, which was marked as Ex.A1 and is identical to
Ex.B1.
9. The case of the plaintiffs is that the Angathal died interstate on
22.03.2006 leaving behind them as legal heris of predeceased
Prammalingam and defendants 1 to 3, as her legal heirs to succeed her
property, as defendants not amicable for partition they come forward with
the suit, claiming 1/4th share in the property.
10. However, the contesting defendants, namely, Sivasamy (D1) and
Mohankumar (D2), denied the plaintiffs' claim, stating that during her
lifetime, Angathal voluntarily executed a registered settlement deed dated
13.02.1995 in their favor regarding the suit property. They contended that
they accepted the settlement deeds and had been in possession and
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enjoyment of the suit property as absolute owners ever since.
11. In response, the plaintiffs filed a reply statement, disputing the
genuineness of the settlement deed. They alleged that fraud was committed
upon Late Angathal, who was an illiterate elderly woman, aged about 75
years, and that the settlement deed was obtained by ignoring the other legal
heirs, namely, the plaintiffs and her daughter (D3).
12. To support their contention, the plaintiffs relied on the following
legal authority before the trial court:
(i) AIR 1970 Supreme Court 37, which stated:
“Contract Act (1872) Section 16: Deed of Settlement
Entire property settled in favor of one of the grandsons by
executants to the exclusion of his own issues and other grand
children - Negligible provision made for wife, who was his
third wife, the first two having died before executants married
her no provision made regarding her right to reside in the
residential house till her death - Executants himself debarred
from dealing with property as an owner during life time
Executants' found to be of advanced age and in state of
senility and suffering from diabetes and other ailments. Facts
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and circumstances leading to execution of deed raising grave
suspicion as to genuineness of execution - Grandson, the
settlee, failing to discharge the burden of establishing that
deed was executed by executants voluntarily and without any
external pressure or influence while he was not of infirm mind
ad was fully aware of dispositions - Held that settlement deed
was invalid. Decision of Kerala High Court, Reversed.”
(ii) AIR 1993 SUPREME COURT 956:
Contract Act (1872) S.23:
Undue influence Onus to prove -Sale deed by tribal
woman, who was old, illiterate and blind, in favor of her
relative with whom she was living till her death and was
dependent on him - no consideration passed at time of sale
-Purchaser in position to dominate and take advantage over
her - Onus lies on him to prove that sale deed was not
executed under undue influence.
(iii) 1992 (2) LAW WEEKLY PAGE.209;
Contract Act Ss 15 to 18 and Evidence Act 102:
Non est factum -Suit by a women alleging that she was
illiterate and that the defendant has played fraud upon her
and exercised under influence, mis representation and
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coercion. Onus upon the defendant to show that there has
been no fraud, under influence or coercion, not on the plaintiff
to prove the misrepresentation or fraud."
13. The legal principle established in the aforementioned cases
emphasizes that the burden of proof lies on the person claiming the
settlement deed to demonstrate that it was executed voluntarily and without
undue influence.
14. Before the trial court, both parties adduced oral and documentary
evidence. On the side of the plaintiffs, the first plaintiff was examined as
P.W.1, and exhibits Ex.A1 to Ex.A4 were marked. On the side of the
defendants, the first defendant was examined as D.W.1, and two other
persons were examined as D.W.2 and D.W.3. Exhibits Ex.B1 to Ex.B11
were marked in support of their case.
15. The learned trial Judge framed four issues, with the primary ones
being: (i) Whether the plaintiffs are entitled to claim partition in the suit
property? (ii) Whether defendants 1 and 2 are the absolute owners of the
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suit property as per the settlement deed?
16. Upon considering both oral and documentary evidence, the
learned trial Judge held that the plaintiffs had prima facie established that
the original owner, Angathal, had excluded them being the widow,
daughter-in-law, and grandchildren of Angathal, as well as her daughter,
the 3rd defendant, while allegedly executing the document in favour of her
two sons, D1 and D2 alone. This itself raised suspicion, thereby shifting the
burden upon defendants 1 and 2 to prove that the settlement deeds, Ex.B3
and Ex.B4, were executed by Angathal voluntarily and of her own free will.
17. The evidence adduced by the defendants revealed that one of the
attesting witnesses, Selvaraj, was a close relative specifically, the brother-
in-law of D.W.1. Furthermore, the attesting witness failed to convince the
Court that Angathal executed the documents of her own free will. Similarly,
the document writer, D.W.3, contradicted the testimony of D.W.1 regarding
the place of attestation of the documents. Additionally, the evidence of
D.W.1 disclosed that he and his brother played a crucial role in the
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execution of the said settlement deeds. It also became evident that Angathal
had not voluntarily executed the settlement deeds, nor were the plaintiffs
made aware of them. These facts and circumstances created suspicion
regarding the authenticity and genuineness of the settlement deeds.
18. Accordingly, the learned trial Judge declared that the settlement
deeds lacked any justifiable reason to exclude the other legal heirs.
Consequently, defendants 1 and 2 failed to discharge the burden of proving
that Ex.B3 and Ex.B4 were executed voluntarily by Angathal. Therefore,
the settlement deeds were deemed non-existent in the eyes of the law. As a
result, the plaintiffs were entitled to claim a share in the property, and the
suit was decreed in their favor.
19. Challenging this judgment, the defendants preferred an appeal
A.S.No.134 of 2009, before the learned First Additional District Judge,
Coimbatore. Upon hearing all submissions, the learned First Appellate
Judge independently analyzed the evidence on record and framed the
following issues: (i) Whether the settlement deeds executed by the late
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Angathal in favor of D1 and D2 were valid and proved in accordance with
the law. (ii) Consequently, whether the plaintiffs were entitled to partition.
20. The learned First Appellate Judge, while considering the
evidence adduced by the defendants in support of the settlement deeds,
relied upon the testimony of D.W.1 (the first defendant). D.W.1 stated that
Angathal's signatures and thumb impressions were obtained in the presence
of their father and that, at the time, their sister and her husband were also
present. Consequently, their brother-in-law signed as one of the witnesses.
However, no signature was obtained from their father.
21. On the contrary, D.W.2, an attesting witness, deposed that before
writing the settlement deed, they had gone to the office of the scribe, where
the deed was drafted and read over to Angathal. However, his testimony
contradicted that of D.W.1. Furthermore, D.W.3, the scribe, did not
corroborate that Angathal had affixed her thumb impression at the
registrar’s office.
22. Due to these inconsistencies in the evidence of D.W.1, D.W.2,
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and D.W.3 regarding the execution of the documents, the learned First
Appellate Judge concluded that D1 and D2 had actively participated in
creating the alleged settlement deed. They had taken advantage of their
mother’s old age, with the help of close relatives, and had deliberately
excluded one of the sons. This clearly indicated that the settlement deeds
were surrounded by suspicious circumstances, and their execution had not
been proved beyond a reasonable doubt.
23. Therefore, defendants 1 and 2 had not perfected any right based
on the settlement deed, Ex.B3 & Ex.B4. Consequently, the suit property
was deemed to belong absolutely to Angathal. As first-class legal heirs of
one of her sons, the plaintiffs were entitled 1/4th share in the suit property.
Accordingly, the appeal was dismissed, and the findings of the trial Court
were confirmed. Challenging these concurrent findings, the defendants
have now preferred the present appeal.
24. The learned counsel for the respondents argues that both the
Courts below failed to consider both factual and legal aspects in the proper
perspective. The scribe was examined as D.W.3, and the attesting witness
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was examined as D.W.2, complying with the requirements under Section 68
of the Indian Evidence Act to prove the truth and genuineness of the
settlement deeds dated 13.02.1995. Despite this, the suit was decreed in
favor of the plaintiffs, which is erroneous and liable to be set aside.
25. The learned counsel further contends that the initial burden upon
the appellants was discharged by examining D.W.2 and D.W.3 to prove the
execution of the settlement deeds. However, the learned First Appellate
Judge considered the concept of non est factum, despite the fact that the
plea was not raised by the executant of the settlement deeds dated
13.02.1995, which is a mandate of law. The learned counsel for the
plaintiffs neither specifically pleaded nor sought any relief of declaration in
respect of the settlement deeds, even after coming to know about them.
Nevertheless, the Courts below erroneously granted such relief concerning
the settlement deeds, which is totally illegal and liable to be set aside. The
decision was based on probability and assumptions, therefore, the findings
of the First Appellate Court should be set aside.
26. The Second Appeal was admitted on 03.11.2010, with the
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following substantial questions of law:
“ a) Whether the Courts below were right in granting
the decree for partition when there was a cloud over the title,
and the respondents had not chosen to plead, prove, and
amend the prayer for declaration and possession of their due
shares, if any?
b) Whether the Courts below were right in considering
the principle of non est factum in proper perspective under
Sections 101 and 102 of the Indian Evidence Act, given that
the plea was raised by the respondents and not by the
executant of the settlement deeds dated 13.02.1995 (late Mrs.
Angathal)?
c) Whether the Courts below properly considered the
provisions under Section 68 of the Indian Evidence Act in
their entirety and correctly applied them to the case at
hand?”
27. In response, the learned counsel for the respondents/plaintiffs
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argues that the Courts below rightly shifted the burden upon defendants 1
and 2, who relied on the settlement deeds said to have been executed
voluntarily by the original owner, Angathal. However, they failed to prove
that the settlement deeds were executed by her out of her free will through
the witnesses D.W.2 and D.W.3. The Courts below rightly appreciated this
fact, which requires no interference. Further, the learned counsel pointed
out that defendants 1 and 2, who were the beneficiaries of the settlement
deeds, also signed as witnesses alternately in each settlement deed.
Moreover, one of the witnesses was a close relative, the brother-in-law of
D1. Additionally, D1 and D2 actively participated in creating the said
settlement deeds, taking advantage of the old age of their mother, which
was rightly inferred by the Courts below. Considering the evidence on
record, no interference is needed, and the appeal should be dismissed as it
lacks merit.
28. To support their arguments, the respondents relied on the
following legal authority: (i) 2023 (4) CTC 831.
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Indian Succession Act, 1925 (39 of 1925), Section
63(c) - Validity of Will - Discrepancy between Chief-
examination and Cross-examination of Attesting Witness
Attesting Witness is Interested Witness, being Maternal Uncle
of 2nd Defendant's Husband Other Attesting Witness who had
produced Will after death of Testator, not examined 1st
Defendant, who is Son of Testator, had not entered Witness
Box to support case of 2nd Defendant - Entire circumstances
surrounding execution of Will appear to be suspicious - First
Appellate Court rightly held that Will was not duly proved -
Second Appeal dismissed.
29. It is an undisputed fact that the relationships between the parties
are admitted. It is also acknowledged that the suit property absolutely
belonged to Angathal. The plaintiffs’ case is that Angathal died intestate,
leaving behind two sons, one daughter, and the legal heirs of her
predeceased son, Prammalingam. Since the property was her absolute
property, the plaintiffs claim entitlement to a 1/4th share as legal heirs of
Prammalingam.
30. On the other hand, defendants 1 and 2, the two sons of Angathal,
challenged the plaintiffs' claim, stating that during her lifetime, Angathal
executed settlement deeds in their favor. However, no reason was assigned
for excluding the other legal heirs of Angathal in the said settlement deeds.
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Having come to know about the said plea, the Courts below rightly inferred
that the settlement deeds were not voluntarily executed and granted relief to
the plaintiffs.
31. By way of a reply statement, the plaintiffs challenged the validity
of the said settlement deeds, stating that it was a fabricated and fraudulent
document created by defendants 1 and 2. Therefore, both the Courts below
rightly shifted the burden upon defendants 1 and 2 to prove the genuineness
of the settlement deeds. By filing the reply statement, the plaintiffs rightly
questioned the authenticity of the settlement deeds, as well as another
Varthamana relied upon by them.
32. Considering the objections raised by the plaintiffs, the Courts
below correctly framed separate issues and shifted the burden of proof upon
defendants 1 and 2. However, the evidence adduced by the defendants was
not sufficient to establish that the settlement deeds was voluntarily
executed by Angathal. Accordingly, the Courts below rightly held that the
defendants had not discharged their burden of proof regarding the
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execution of the settlement deed as a true and valid document. Therefore,
the Courts below were correct in granting the decree of partition, as the
plaintiffs had specifically pleaded against the genuineness of the settlement
deeds in their reply statement. Consequently, question of law A is
answered.
33. Furthermore, when the plaintiffs specifically pleaded that the
settlement deeds were fabricated and fraudulent, the Courts below, while
deciding on the genuineness of the said settlement deed and the intention of
the settlor, rightly relied on the proposition laid down in 1985 Allahabad
160 Mallo v. Bakhtawari, wherein it was held:
"Burden of proof – Donor, an illiterate lady, filing suit
for cancellation of a gift deed on the ground that it was
obtained by fraud. Burden of proving that the gift deed was
valid lay on the donees. Admission by the executant about the
existence of the gift deed obtained by fraud did not dispense
with the proof of attestation."
34. In respect of the non est factum principle, the Court rightly
concluded that since the settlor, Angathal, was 75-year-old illiterate woman
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under the custody of defendants 1 and 2, who actively participated in
executing the settlement deed in their favor alone, the defendants failed to
prove that the settlement deed was executed without their undue influence.
Furthermore, the evidence of D.W.1 to D.W.3 contradicted each other and
failed to prove the valid execution of the settlement deeds. Therefore, the
first appellate Court rightly applied the non est factum principle, which
requires no interference by this Court. Accordingly, question of law B is
answered.
35. The learned counsel for the appellants/defendants submitted that
to prove the execution of the settlement deed, they complied with the
requirements under Section 68 of the Indian Evidence Act by examining the
attesting witness (D.W.2) and the scribe (D.W.3), thereby discharging the
initial burden cast upon them. However, the Court erroneously held that
they had not proved the genuineness of settlement deeds Ex.B3 and Ex.B4.
The Courts below rightly appreciated the evidence of D.W.2, who revealed
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that he was a close relative of D.W.1 and was present in the house where
Angathal resided with defendants 1 and 2. However, D.W.1 gave contrary
evidence regarding the place and execution of the settlement deed.
Additionally, D.W.1 admitted that he and his brother decided to obtain the
settlement deeds from their mother, which clearly implies that the execution
of the settlement deeds was not voluntarily intended by the settlor,
Angathal.
36. Apart from this, the evidence of D.W.3, the scribe, also
confirmed that only a thumb impression was obtained. However, D.W.3’s
testimony did not support D.W.1’s statement regarding the execution of the
settlement deed. Due to these contradictions, the Courts below rightly held
that the document suffered from suspicion and was not proved beyond a
reasonable doubt. Therefore, merely examining the attester and the scribe is
not sufficient to prove that the document was true and genuine. The
evidence must inspire the confidence of the Court, which, in this case, it
failed to do. Hence, the Courts below rightly held that defendants 1 and 2
had not proved the execution and the intention of the settlor beyond a
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reasonable doubt, requiring no interference by this Court. Accordingly,
question of law C is answered.
37. Moreover, after the execution of the settlement deeds, the
mutation of records was not effected. It was only in the year 1996 that steps
were taken for mutation, which creates further doubt regarding whether the
alleged deeds were ever acted upon. The Courts below rightly concluded
the same, which requires no interference. The findings of the Trial Court
are confirmed, and the suit is decreed. There is no merit in this appeal.
38. Accordingly, this Second Appeal is dismissed. Consequently, the
connected miscellaneous petitions are closed. There shall be no order as to
costs.
39. The plaintiffs are entitled to 1/4th share. Since the suit has been
pending before the Court since 2006, for nearly 20 years. If any final decree
application is filed, the Trial Court is directed to dispose of the same within
three months from the date of receipt of a copy of this order, without
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granting unnecessary adjournments.
04.02.2025
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non Speaking order
rri
To
1. The I Additional District Court, Coimbatore.
2. The II Additional Subordinate Court, Coimbatore.
3.The Section Officer, VR Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri
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and
CMP.Nos. 1 of 2010 & 3379 of 2022
04.02.2025
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