Madras High Court
Ulaganayaki vs Nallathai on 21 November, 2016
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.11.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
S.A.(MD)No.757 of 2005
1.Ulaganayaki
W/o.Late Balasubramanian
2.Palani Shanmugavel,
S/o. Late Balasubramanian .. Appellants/Appellants/Plaintiffs
Vs.
1.Nallathai, D/o.Muthiah Othuvar
2.Minor Sankaralingam, S/o.Nallathai
3.Minor Muthu Mala, D/o.Nallathai
4.The Manager,
Indian Overseas Bank,
Aikudi, Shencottah,
Tirunelveli District. .. Respondents/Respondents/Defendants
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 03.02.2005 made in A.S.No.124 of 2004
on the file of the Principal District Court, Tirunelveli, confirming the
Judgment and decree dated 18.08.2004, made in O.S.No.48 of 2003 on the file
of the Additional Subordinate Court, Tenkasi.
!For Appellants : Mr.N.Ga.Natraj
for Mr.T.S.Mohamed Mohideen
^For R1 to R3 : Ms.J.Maria Rubit
for Mr.G.Prabhu Rajadurai
For R4 : Mr.S.Meenakshisundaram
:JUDGMENT
This Second Appeal has been filed against the judgment and decree dated 03.02.2005 made in A.S.No.124 of 2004 on the file of the Principal District Court, Tirunelveli, confirming the Judgment and decree dated 18.08.2004, made in O.S.No.48 of 2003 on the file of the Additional Subordinate Court, Tenkasi.
2. The appellants are the plaintiffs, who lost in both the Courts below. The respondents are the defendants.
3. Facts of the case:
(i) The first appellant/first plaintiff is the first wife of one Balasubramanian. The second appellant/second plaintiff is the son born through the first appellant and Balasubramanian. The said Balasubramanian led a wayward life and therefore, in the presence of elders, the second appellant and the said Balasubramanian partitioned the suit property orally in the year 1980 and the first schedule of the suit property, house and lands were allotted to the second appellant and agricultural lands were allotted to the said Balasubramanian, who sold the agricultural lands allotted to him.
The said Balasubramanian subsequently, sold the jewels of the first appellant and from the amounts contributed by the second appellant, he deposited a sum of Rs.30,000/- in the fourth respondent Bank in a Fixed Deposit. On 15.10.2002, the said Balasubramanian died. On 30.10.2002, the first respondent came to the house of the appellants, claiming to be the second wife of Balasubramanian and the respondents 2 and 3 are the children of said Balasubramanian. Therefore, she claimed share in the suit properties. On 27.01.2003, she gave a false complaint to the police. Hence, the appellants have filed the suit for the relief stated supra.
(ii) The respondents 1 to 3 filed written statement and denied various averments mentioned in the plaint and submitted that the first respondent got married to the said Balasubramanian in the year 1985 and they were residing in the suit properties along with the respondents 2 and 3. The appellants are residing separately in Anaikarai Theru, Tenkasi in the first appellant's mother's house. The respondents 2 and 3 are born in the wedlock between the first respondent and the said Balasubramanian. The said Balasubramanian by the Will, dated 21.08.2001, registered as Document No.32/2001, on the file of the Sub-Registrar, Shengottai, bequeathed the first schedule of the suit property to the second appellant and the respondents 2 and 3 equally. In the said Will, the said Balasubramanian has admitted that the first appellant is his first wife and the first respondent is his second wife. He also admitted that the second appellant and the respondents 2 and 3 are his children. After the death of Balasubramanian, the appellants refused to give share to the respondents 1 to 3 and were disturbing their possession in respect of first schedule of the suit property. Therefore, the first respondent gave a complaint on 27.01.2003 to the concerned police.
(iii) The fourth respondent filed separate counter affidavit and stated that the said Balasubramanian deposited a sum of Rs.30,000/- in the 4th respondent bank in a Fixed Deposit on 20.12.2001 for three years and he opened Savings Bank Account vide No.6878 and directed the fourth respondent to credit the interest in the S.B. Account and in both the accounts, the first respondent ? Nallathai is shown as Nominee and further stated that the amounts will be paid as per order of the Court.
(iv) Based on the pleadings, the learned Additional Subordinate Judge, Tenkasi, framed necessary issues.
(v) Before the Trial Court, the second appellant examined himself as P.W.1 and marked four documents as Exs.A.1 to A.4. On behalf of the respondents, the first respondent examined herself as D.W.1 and one Valangaiah, attesting witness of Will was examined as D.W.2 and Jeyakumar, the Manager of Indian Overseas Bank, Aikudi Branch, was examined as D.W.3 and marked three documents as Exs.B.1 to B.3.
(vi) The learned Additional Subordinate Judge, Tenkasi, considering the pleadings, oral and documentary evidence and the arguments of the learned counsel for the parties, dismissed the suit holding that the appellants failed to prove their case.
(vii) Against the said judgment and decree, dated 18.08.2004, the appellants have filed A.S.No.124 of 2004 before the Principal District Court, Tirunelveli.
(viii) The learned Principal Judge, Tirunelveli, framed necessary points for consideration and independently considering all the pleadings, oral and documentary evidence, the judgment of the Trial Court and arguments of the learned counsel appearing for the parties and the judgments relied on by the learned counsel for the appellants, dismissed the first appeal filed by the appellants.
4. Against the said judgment and decree, dated 03.02.2005, the appellants have filed the present second appeal.
5. At the time of admitting the second appeal, this Court framed the following substantial questions of law:
1. Whether the Courts below are correct in deciding that the second marriage is valid?
2. Whether the findings of the Courts below that Ex.B.2 Will created upon ancestral property, is valid in law is sustainable?
6. The learned counsel for the appellants submitted that the Courts below failed to appreciate the contention of the parties in proper perspective and erroneously dismissed the suit and the first appeal on assumption and presumption. The Courts below have failed to consider whether the first respondent proved her alleged marriage with the deceased Balasubramanian. The Courts below failed to see that the first item of the suit schedule property is ancestral property and therefore, the respondents 1 to 3 have no right in the property. The Courts below have erroneously dismissed the suit and the first appeal.
7. In support of his submissions, the learned counsel for the appellants relied on the judgment of this Court in Kanthasamy and another Vs. Annammal and another reported in CDJ 2014 MHC 1478 : 2014 (2) MWN (Civil) 180, wherein at paragraph 27, it has been held as follows:
?27. ..... a son born through the second marriage is a legitimate son only for the purpose of claiming share in the father's property and he is not entitled to claim any share in the ancestral property of the father and therefore, the plaintiff, being the daughter of the first defendant, through the first wife, is entitled to claim half share in the property. Therefore, the trial Court has rightly held that the plaintiff is entitled to half share. I do not find any reason to interfere with the judgment and decree of the trial Court.?
8. The learned counsel for the respondents 1 to 3 submitted that the appellants have failed to prove that the said Balasubramanian led a wayward life and the alleged oral partition took place in the year 1980. On the other hand, the first respondent has proved her marriage with Balasubramanian by producing a registered Will Ex.B.2, dated 21.08.2001 and by examining D.W.2, attesting witness. In the Fixed Deposit and the Savings Bank Account, the first respondent is shown as wife and Nominee of Balasubramanian. D.W.3, the Manager of the Indian Overseas Bank deposed that the first respondent is shown as wife and Nominee of Balasubramanian in the Fixed Deposit and the Savings Bank Account.
9. The learned counsel for the fourth respondent submitted that the said Balasubramanian deposited a sum of Rs.30,000/- in a Fixed Deposit on 20.12.2001 for three years in the fourth respondent Bank and he opened Savings Bank Account, vide No.6878 and directed the fourth respondent to credit the interest in the S.B. Account and in both the accounts, the first respondent ? Nallathai is shown as Nominee. He further submitted that the amounts will be paid as per order of the Court and prayed for dismissal of the second appeal.
10. I have carefully perused all the materials available on record and the judgments of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.
11. The case of the appellants is that the said Balasubramanian led a wayward life and therefore, the properties were orally partitioned between the second appellant and the said Balasubramanian in the year 1980, in the presence of the elders. The first item of the suit schedule property was allotted to the share of the second appellant. Agricultural lands were allotted to Balasubramanian, who sold the agricultural lands. To substantiate this case, the second appellant was examined as P.W.1. In the cross-examination, the second appellant stated that the oral partition was effected in the year 1980 and the agricultural lands were sold by Balasubramanian in the year 1978. The appellants have not examined any elders in whose presence the oral partition was effected. Even though the second appellant deposed that oral partition was effected in the presence of one Palaniappa Pillai and others, the appellants did not examine the said Palaniappa Pillai. The first appellant did not give evidence to prove that Balasubramanian led a wayward life. The Courts below rejected the evidence of P.W.1 holding that the evidence of P.W.1 does not substantiate their case and also the first appellant did not give any evidence. The Courts below took note of the fact that the first appellant did not examine herself to prove that the wayward life of Balasubramanian and rejected the evidence of the second appellant on the ground that no independent witness was examined to prove the oral partition. On the other hand, the respondents 1 to 3 produced Ex.B.2, registered Will, dated 21.08.2001, wherein the said Balasubramanian admitted the second marriage with the first respondent and the respondents 2 and 3 are his children. The registered Will was proved by the respondents 1 to 3 by examining D.W.2, attesting witness. Further, from the evidence of D.W.3, it is clear that the deceased Balasubramanian admitted that the first respondent is his wife and she was shown as nominee in both the Fixed Deposit and the Savings Bank Account. The Courts below have properly appreciated the pleadings, oral and documentary evidence and have rightly rejected the contention of the appellants and dismissed the suit and the first appeal. No question of law much less substantial question arises for consideration in the second appeal.
12. In the result, the second appeal is dismissed confirming the judgment and decree of the Courts below. No costs.
To
1.The Principal District Judge, Tirunelveli.
2.The Additional Subordinate Judge, Tenkasi.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. .