Madras High Court
C.Priyadharshini vs I.Chokkanathan on 6 January, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.62 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2025
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.62 of 2023
and
C.M.P.Nos. 1980 & 1986 of 2023
C.Priyadharshini ... Appellant
Vs.
1. I.Chokkanathan
2. C.Kishore Kumar .. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 11.04.2022 passed
in A.S.No.41 of 2019 on the file of III Addl. District Judge, Salem
dismissing the entire suit by reversing the judgment and decree dated
01.10.2018 passed in O.S.No.303 of 2016 on the file of Principal
Subordinate Court, Salem.
1/12
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S.A. No.62 of 2023
For Appellant : Mr.S.Kishore Kumar
For Respondents : Mr.A.G.Rajan for R1 & R2
JUDGMENT
The appellant, who is the plaintiff filed a suit in O.S. No. 303 of 2016
against the defendants seeking for the relief of partition and separate
possession as well as permanent injunction and the same was partly decreed
in favour of him. Against which, the defendants preferred an appeal suit in
A.S.No. 41 of 2019 and on analysing the facts and evidence on record, the
first appellate judge allowed the appeal suit and the findings of the trial
judge was set aside. Challenging the reversal findings of first appellate
court, the plaintiff preferred this Second Appeal.
2. For the sake of convenience, the parties are denoted as per the
ranking in the suit before the trial court.
3. Before the trial court, the plaintiff filed a suit seeking for the relief
of partition claiming 1/3rd share in 'A' and 'B' schedule properties stating that
out of income derived from the ancestral property, 'A' and 'B' schedule
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properties were purchased through two sale deeds in the name of her parents
viz. 1st defendant and Vijayalakshmi. The said Vijayalakshmi died leaving
behind her husband, daughter and son viz., plaintiff and defendants 1 and 2.
Thereafter, they enjoyed the properties jointly. While so, the plaintiff
married one Veeraragavan against the wish of her father/1st defendant.
Hence, the dispute arose and they have also attempted to sell the 'B'
schedule property. The defendants 1 and 2 admits the relationship, but
denied the nature of properties as alleged by the plaintiff and submitted that
there is no ancestral property. He is mechanic by profession and having
workshop at Dharmapuri and out of his own income, he purchased the
properties from the same vendors through two sale deeds, however, out of
love and affection, 'B' schedule property was purchased in the name of his
wife Vijayalakshmi on the same day dated 15.12.1993 from the same
vendor and there is no separate income for his wife. Though sale deed
stands in the name of Vijayalakshmi, he is the absolute owner of both 'A'
and 'B' schedule properties. Accordingly, he prayed to dismiss the suit as it
is not a joint family property.
4. Before the trial court, plaintiff examined herself as P.W.1 and 1st
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defendant was examined as D.W.1. On the side of plaintiff, documents
Ex.A1 to Ex.A9 were marked. On the side of defendants, no document was
adduced. Considering both side submissions, the trial judge framed two
issues and the foremost issue is whether the suit properties are the separate
properties of 1st defendant?
5. On considering the evidence on record, the trial judge held that as
per the recital of sale deed Ex.A1, it stands in the name of 1 st defendant and
Ex.A2 sale deed stands in the name of his wife Vijayalakshmi. Thereafter,
the said Vijayalakshmi died in the year of 1995 leaving behind her husband
(D1), son (D2) and daughter (plaintiff) as her legal heirs. As per the recital
of Ex.A2, the sale consideration was paid by Vijayalakshmi and she
purchased the property. However, there is no contra evidence on the side of
1st defendant to prove that he purchased the 'B' schedule property in the
name of his wife nor he adduced any evidence to that effect. Therefore, the
trial judge held that 'A' schedule property is the self-acquired property of 1 st
defendant, in which the plaintiff has no right to claim partition, thereby the
suit was partly dismissed in respect of 'A' schedule property and in respect
of 'B' schedule property, it was held that it is the absolute property of
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plaintiff's mother Vijaylakshmi. As she died, her legal heirs, plaintiff and
defendants 1 and 2 are entitled for 1/3rd share. Accordingly, the suit decreed
in respect of 'B' schedule property.
6. Challenging the said findings, the appeal suit was preferred by the
1st defendant in A.S.No.41 of 2019 before the III Addl. District Judge,
Salem, wherein the first appellate judge, on considering evidence on record
held that both the suit properties are purchased by 1st defendant by himself
and there is no proof that the plaintiff's mother Vijayalakshmi had source of
income to purchase the 'B' schedule property nor plaintiff specifically
pleaded about the source of income of her mother, thereby the plaintiff not
established that her mother purchased the property independently, on the
other hand, both properties were purchased by 1st defendant from the same
vendor and registered the sale deeds in his name as well as his wife's name
out of love and affection. Furthermore, there is no proof that Vijayalakshmi
had separate source of income, thereby both 'A' and 'B' schedule properties
absolutely belong to 1st defendant, in which plaintiff has no right to claim
partition. Accordingly, the appeal suit was allowed and the findings of trial
judge was set aside. Challenging the reversal findings of first appellate
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court, the plaintiff preferred this Second Appeal.
7. The learned counsel for plaintiff argues that the first appellate court
ought to have appreciated the fact that after demise of mother
Vijayalakshmi, all her legal heirs viz., plaintiff and defendants1 and 2 have
jointly sold portion of suit properties to third party. To that effect she
produced the sale deed marked as Ex.A3, which itself shows that the said
property was treated as absolute property of Vijayalakshmi, but the first
appellate court failed to appreciate the said document and erroneously held
that Vijayalakshmi had no source of income and the plaintiff's father
purchased the property in her name out of love and affection. The said
findings is perverse and the same is liable to be set aside. The learned
counsel would also submit that as per the sale deed Ex.A2, 'B' schedule
property stands in the name of her mother Vijayalakshmi. If the 1 st
defendant disputing the written recitals of document, he is bound to prove
the same by adducing contra evidence, but before the trial court, no such
evidence was adduced. Inspite of that, the first appellate judge allowed the
appeal suit in favour of 1st defendant as such is illegal and the same is liable
to be set aside.
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8. Considering his submissions, this Second Appeal is admitted on
the following question of law :-
“(1) Is not the findings of the lower appellate court as regards the
payment of sale consideration by the 1st defendant is perverse,
especially when the recitals of sale deed is contrary?
(2) Whether only the oral evidence of 1st defendant can be
considered to negate the recitals of the registered documents, in
one of which the 1st defendant himself is a party?
9. By way of reply, the learned counsel for respondents/defendants
argues that the 1st defendant used to do mechanic work at Dharmapuri by
traveling nearly about 75 kms. away and out of his own earnings, he
purchased the suit properties through sale deeds Ex.A1 and Ex.A2 and out
of love and affection, he purchased the 'B' schedule property in the name of
his wife, who had no source of income, but he alone enjoyed both suit
properties as absolute owner. His wife Vijayalakshmi had no source of
income and the same was rightly appreciated by the trial judge, but the first
appellate court erroneously granted the relief in favour of plaintiff holding
that 'B' schedule property is the absolute property of her mother as such is
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erroneous one. Hence, this Second Appeal is liable to be dismissed by
confirming the findings of trial judge.
10. Heard and considered rival submissions of both learned counsel
for appellant as well as respondents and perused the materials available on
record.
11. The plaintiff is the daughter of 1st defendant and sister of 2nd
defendant. The 1st defendant married one Vijayalakshmi and they begotten
the plaintiff and 2nd defendant as their children. The relationship between
them is undisputed one. As per Ex.A1 and Ex.A2, sale deeds written
recitals, it reveals that 'A' schedule property stands in the name 1 st defendant
and 'B' schedule property stands in the name of plaintiff's mother
Vijayalakshmi. In respect of 'A' schedule property, the suit was dismissed.
Against which, the plaintiff had not preferred any appeal. In respect of 'B'
schedule property, the claim of the plaintiff is that the said property was
purchased by her mother out of her own income by mortgaging jewels and
paid the sale consideration. Per contra, the 1st defendant contested the case
stating that his wife Vijayalakshmi had no independent income and out of
love and affection, he alone purchased the said property in her name, but as
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rightly observed by the first appellate judge, as per the recitals of Ex.A2,
sale consideration was paid by Vijayalakshmi not by the 1st defendant. As
per Sec.92 of Indian Evidence Act, parties are not entitled to adduce oral
evidence against written recitals. However, he is entitled to adduce contra
evidence by disproving the said circumstances. The 1st defendant denied the
plaintiff's claim stating that he alone purchased the property in the name of
his wife, but there is no proof to establish the same before the trial court.
Therefore, the 1st defendant failed to adduce any contra evidence to disprove
the written recitals of Ex.A2 sale deed. Moreover, as per the sale deed
Ex.A2, it stands in the name of Vijayalakshmi and the recitals clearly shows
that the sale consideration was paid by her. Therefore, 'B' schedule proeprty
is the absolute property of plaintiff's mother as rightly held by the trial
judge, which needs no interference by this court. On one occasion, the
plaintiff as well as defendants jointly sold portion of suit property to third
party. To that effect, the sale deed marked as Ex.A3 was produced.
Therefore, after the demise of Vijayalakshmi, 'B' schedule property was
commonly enjoyed by the plaintiff, her father/1st defendant and her
brother/2nd defendant. By way of reply, the learned counsel for respondents
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would submit that at the instance of purchaser, signature from the plaintiff
was obtained, except that, 'B' schedule property was treated as absolute
property of 1st defendant. As discussed above, as per Ex.A2 sale deed, it is
the absolute property of mother of plaintiff Vijayalakshmi and she died
intestate, it is an admitted fact. As it is a self-acquired property of
Vijayalakshmi, all her legal heirs including plaintiff and defendants 1 and 2,
each entitled to 1/3rd share, which was rightly upheld by the trial judge,
which needs no interference. Accordingly, the question of law (1) and (2) is
answered. Therefore, in respect of 'B' schedule property, the plaintiff is
entitled for 1/3rd share. Accordingly, the preliminary decree is passed. In the
result, this Second Appeal is allowed and the findings of first appellate
judge in A.S.No. 149 of 1999 is set aside and the suit is partly allowed in
respect of 'B' schedule property alone, accordingly, plaintiff is entitled 1/3rd
share and the suit is partly dismissed in respect of 'A' schedule property. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
06.01.2025
Index : Yes / No
Internet : Yes / No
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Speaking/Non-speaking order
rpp/mps
To
III Addl. District Judge, Salem.
T.V.THAMILSELVI, J.
rpp/mps
https://www.mhc.tn.gov.in/judis
06.01.2025
https://www.mhc.tn.gov.in/judis
