Madras High Court
Devaraj vs Paramasivam ... 1St on 17 August, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 A.S.(MD)NO.28 OF 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.28 of 2018
and
C.M.P.(MD)No.12400 of 2018
Devaraj ... Appellant/2nd Defendant
Vs.
1. Paramasivam ... 1st respondent/Plaintiff
Chandrakasu(Died)
2. S.Akilambal
3. Kanagavalli
4. C.Vasantha ... Respondents 2 to 4/
Defendants 3 to 5
Prayer: Appeal suit filed under Section 96 of C.P.C., to set aside
as against the judgment and decree dated 29.06.2017 in O.S.No.
26 of 2014 on the file of the II Additional District and Sessions
Judge, Thanjavur.
For Appellant : Mr.K.K.Ramakrishnan
For R-1 : Mr.S.Palani Velayutham
For R-2 to R-4 : No appearance.
https://www.mhc.tn.gov.in/judis
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2 A.S.(MD)NO.28 OF 2018
JUDGMENT
The appellant herein was the second defendant in O.S No.26 of 2014 on the file of the II Additional District and Sessions Judge, Thanjavur.
2.The suit was for partition. The first respondent herein, namely, Paramasivam filed the said suit seeking preliminary decree for partition and separate possession of ½ share in the suit properties. He also sought decree for permanent injunction restraining the appellant herein from interfering with his peaceful possession over the first item of the suit second schedule till the final division by meats and bounds takes place. The suit properties are comprised in two schedules. The first schedule is a house site. The second schedule contains two items. The first item of the second schedule is a coconut grove in which 85 trees are standing and measures 2.2 acres and 11 cents. The second item of the second schedule is a house property.
3. The case of the plaintiff is as follows:-
The first defendant Chandrakasu is his father. The first defendant sold the ancestral properties and out of the sale https://www.mhc.tn.gov.in/judis 2/13 3 A.S.(MD)NO.28 OF 2018 consideration, purchased the suit first item on 03.04.1946. The plaintiff was born some time in the year 1956 and has been assisting his father right from the year 1971. Out of the income generated by their joint labour, the house was constructed and they also purchased the first item of the second schedule. The plaintiff got married in the year 1984. The plaintiff had five sisters. Two of them, namely, Saroja and Lakshmi had already passed away. The appellant is the son born to the last daughter, namely, Lakshmi. The other three sisters, namely, Akilambal, Kanagavalli and Vasantha are very much alive. Vasantha is presently residing in the suit second schedule second item. The specific case of the plaintiff is that he is entitled to ½ share in all the three items. Since 1990, the plaintiff is residing separately and he is jointly cultivating the coconut grove. In the year 2005, the first defendant developed certain health problems and underwent surgery. Taking advantage of the unstable mental condition of the first defendant, the appellant obtained a settlement deed from the first defendant on 07.03.2014 (Ex.A.1). Since the appellant was also interfering with the plaintiff's peaceful possession of the suit items, he was constrained to issue notice dated 20.03.2014(Ex.A.2). The appellant refused to receive https://www.mhc.tn.gov.in/judis 3/13 4 A.S.(MD)NO.28 OF 2018 the suit notice. In the said notice, the plaintiff had demanded his share in the properties. Since there was no reply, he was constrained to institute the aforesaid suit for partition of his ½ share in the three items.
4.The plaintiff's father, namely, the first defendant died during the pendency of the suit. Before his demise, the first defendant filed his written statement controverting the plaint averments. The first defendant specifically contended that there were no ancestral properties or nucleus available to fund the purchase of any of the suit items. According to the first defendant, all the three items were purchased by him out of his own income and that it was he who constructed the house also. He also denied that there was joint cultivation and sharing of agricultural income. The first defendant also stated that he had settled all the properties in favour of the appellant Devaraj on 07.03.2014 on his own volition, since the appellant was taking care of him while the plaintiff had deserted him. That is why, the first defendant settled the suit items in favour of the appellant. The first defendant called for dismissal of the suit. The appellant who was shown as the second defendant adopted the written statement filed by the first https://www.mhc.tn.gov.in/judis 4/13 5 A.S.(MD)NO.28 OF 2018 defendant. Though the other daughters did not independently file any written statement, they deposed in favour of the appellant during the trial.
5.The trial Court framed the necessary issues. The plaintiff examined himself as P.W.1. Five other witnesses were examined on his side. Ex.A1 to Ex.A10 were marked. The appellant examined himself as D.W 1 and the plaintiff's sisters, namely, Akilambal and Kanagavalli were examined as D.W.2 and D.W.3 in support of the appellant. No documentary evidence was adduced on the side of the defendants. After a consideration of the evidence on record, the trial Court by the impugned judgment and decree dated 29.06.2017 granted preliminary decree as prayed for. The relief of permanent injunction was denied. Aggrieved by the same, this appeal came to be filed by the second defendant herein.
6.The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds. He also filed written submissions. He submitted that the trial Court ought to have sustained the settlement deed Ex.A1 https://www.mhc.tn.gov.in/judis 5/13 6 A.S.(MD)NO.28 OF 2018 executed by the first defendant. He submitted that the trial Court ought to have dismissed the suit in toto. After making such submissions, the learned counsel appearing for the appellant on written instructions stated that even if the appellant succeeds in the appeal, the appellant is ready to part with 75 cents in the first item of the suit second schedule. He filed a sketch earmarking 75 cents of land in the first item of the suit second schedule where the coconut trees are also presently standing. The appellant is also ready to give 2 cents of land in the first schedule that has also been independently earmarked in a separate sketch. This concession made by the appellant's counsel on instructions is placed on record.
7.Per contra, the learned counsel appearing for the plaintiff/first respondent submitted that the impugned judgment and decree do not warrant any interference. He pointed out that the plaintiff was born before the Hindu Succession Act, 1956 came into force. The plaintiff by virtue of birth became a member of the coparcenery comprising himself and his father, namely, the first defendant. The first defendant had not pleaded that the plaintiff was born after the Act came into force. The first https://www.mhc.tn.gov.in/judis 6/13 7 A.S.(MD)NO.28 OF 2018 defendant was the best person to speak as to when the plaintiff was born. He passed away before the commencement of trial. The learned counsel also pointed out that the evidence on record is more than sufficient to show that the first defendant was not mentally or physically stable. The second defendant/appellant herein had made use of the dominant position which he had over the first defendant. Taking me through the evidence of the appellant/D.W.1, he submitted that it is improbable that the first defendant could have instructed the counsel at Pondicherry to prepare the written statement. He was not even in a position to move out. One cannot infer anything in favour of the appellant merely because the written statement was filed in the name of the first defendant. The learned counsel would contend that it was the appellant who had made ready the written statement and the first defendant was made to put his signature. The first defendant died before the commencement of the trial. The appellant cannot take advantage of the fact that the written statement came to be filed in his favour by the first defendant. He submitted that the trial Court carefully analysed the entire facts and evidence and that no case has been made out for interference. He pressed for dismissal of the first appeal.
https://www.mhc.tn.gov.in/judis 7/13 8 A.S.(MD)NO.28 OF 2018
8.I carefully considered the rival contentions and went through the evidence on record. The point for consideration is whether the suit items were the self-acquired properties of the first defendant and whether Ex.A.1 settlement is valid.
9.There are three items in all, namely, i) House site, ii) House property and iii) Coconut grove. As rightly pointed out by the learned counsel appearing for the appellant, there is nothing on record to show that the properties are ancestral in character. Merely because the joint family comprised the first defendant and plaintiff, there is no automatic presumption that the suit items are also joint family properties. The specific case of the first defendant is that all the three items are self-acquired properties. The plaintiff had not adduced any evidence to show that the house property or the house site were purchased out of the joint family nucleus. Therefore, I have to necessarily sustain the contention of the appellant's counsel that these two items were the self- acquired properties of the first defendant. As regards the coconut grove, though the title document has not been produced, the plaintiff has marked Ex.A.10 dated 07.04.1982. Ex.A.10 is a deed of mortgage executed in favour of Thiruvaiyaru Co-operative Bank https://www.mhc.tn.gov.in/judis 8/13 9 A.S.(MD)NO.28 OF 2018 jointly by the first defendant and the plaintiff. When a deed of sale or mortgage is executed, it is not uncommon for the purchaser or mortgagee to insist that the adult members of the family should also join as co-executants or attestors. This is for the purpose of assurance of title. Therefore, from this solitary evidence, I am unable to hold that the coconut grove should be treated as a joint family property.
10.The Court below had committed a serious error in casting the entire burden of proof on the appellant and the first defendant. The case of the plaintiff is that all the three suit items are ancestral properties. The case of the first defendant was that the suit items are self-acquired properties. A person who claims that the properties are ancestral properties, is obliged to prove the same. The burden of proof lies only on him. But in the case on hand, the Court below had relieved the plaintiff totally of all burden and placed the same squarely on the shoulder of the first defendant and the appellant herein. This misdirection in law has led the Court below to pass the impugned preliminary decree for partition. Casting the burden of proof wrongly has vitiated the impugned judgment.
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11.The Court below has given a further finding that Ex.A. 1 settlement deed dated 07.03.2014 did not come into effect. Such a finding has been given without taking note of the terms of the settlement deed. The settlement deed is a registered document. A presumption of validity attaches to it. In the settlement deed, the first defendant had averred that he had handed over possession of the suit items to the appellant. This averment found in the settlement deed is highly significant. Therefore, the learned counsel appearing for the appellant is right in his contention that the settlement deed came into force instantaneously the moment it was executed. The settlement deed was executed on 07.03.2014 and the suit notice was issued on 20.03.2014 and the suit also came to be instituted shortly thereafter. In view of the dispute raised by the plaintiff, the appellant could not move the revenue authorities for effecting mutation in his favour. The Court below had without any justification brushed aside the testimony of defendants 2 and 3, namely, Akilambal and Kanagavalli. They are none other than the sisters of the plaintiff. One of them is residing in the second item of the suit second schedule. They are not the beneficiaries under Ex.A.1. Yet they have chosen to support the appellant. When the disinherited legal heirs speak in support of https://www.mhc.tn.gov.in/judis 10/13 11 A.S.(MD)NO.28 OF 2018 the settlement deed, there cannot be a better assurance regarding its validity. In order to satisfy my conscience, I called upon the sisters of the plaintiff to appear before me. They categorically stated that their father, namely, the deceased first defendant executed Ex.A.1 settlement deed in favour of the appellant out of affection and in a sound disposing state of mind. I am therefore satisfied that Ex.A.1 is valid.
12.I have found that the case of the plaintiff as regards the character of the suit properties cannot be accepted. I have also found that Ex.A.1 settlement deed is a valid document. Hence, the judgment and decree of the Court below is set aside. The wife of the first defendant passed away some time in the year 2015. The other sisters of the plaintiff have categorically stated before the Court that Ex.A.1 can be upheld as such. However, in view of the undertaking given by the appellant, this appeal is disposed of as follows:-
(i) the judgment and decree dated 29.06.2017 in O.S.No.26 of 2014 on the file of the II Additional District and Sessions Judge, Thanjavur, is set aside.
(ii) the first respondent / plaintiff is given 75 cents of land in the first item of the suit second https://www.mhc.tn.gov.in/judis 11/13 12 A.S.(MD)NO.28 OF 2018 schedule and 2 cents of land in the suit first schedule as per the enclosed sketch.
No costs. Consequently, connected miscellaneous petition is closed.
17.08.2021
Index : Yes / No
Internet : Yes/ No
PMU/skm
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. Issue order copy by 28.03.2022 To:
1. The II Additional District and Sessions Judge, Thanjavur.
2. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 12/13 13 A.S.(MD)NO.28 OF 2018 G.R.SWAMINATHAN,J.
PMU/skm A.S.(MD)No.28 of 2018 17.08.2021 https://www.mhc.tn.gov.in/judis 13/13