Madras High Court
Krishnammal vs Veerasamy Naidu on 27 October, 2006
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No.90 of 1995 Krishnammal ... Appellant Vs. Veerasamy Naidu ... Respondent Second Appeal is filed against the Judgment and Decree dated 07.04.1994 and made in A.S.No.21 of 1991 on the file of Subordinate Court, Tenkasi, confirming the Judgment and Decree, dated 21.01.1991 made in O.S.No.234 of 1985 on the file of the District Munsif Court, Sankarankoil. !For Appellant ... Mr. M.O.Thevankumar for M/s.A.Sivaji ^For Respondent ... Mr.S.Manohar :JUDGMENT
The plaintiff in the suit is the appellant in the Second Appeal. This Second Appeal has been preferred against the judgment and decree dated 07.04.1994, made in A.S.No.21 of 1991 on the file of the Subordinate Judge, Tenkasi, confirming the judgment and decree, dated 22.01.1991, passed in O.S.No.234 of 1985 on the file of the District Munsif, Sankarankoil
2. The brief facts of the case are as follows :
According to the appellant / plaintiff, originally one Veerappa Naidu and others had 2/3rd share in the first item of the plaint schedule property and they were in possession and enjoyment of the property. On 07.11.1949, they sold the property to one Swami Naidu under a Registered sale deed, Ex.A1 and also handed over the possession and enjoyment of the property to him and after his death, his only son Dr.Boopathi Raj inherited the property and enjoyed the same as his absolute property and sold the same on 15.09.1983 to the plaintiff along with his sons for a valuable consideration under Ex.A2. In the said sale deed, instead of stating the correct S.No.1249/2 of the suit property, the survey number had been stated as S.No.1043/1 by mistake. The same was corrected by Ex.A3, dated 02.07.1985 and as it was inconvenient to enjoy the property jointly, in the presence of mediators, the plaintiff and other sharer Krishnaswamy Naidu, the father of the defendant who was entitled to 1/3rd share in the property had partitioned and accordingly, the plaintiff was allotted 2/3rd share on the southern side and Krishnaswamy Naidu was allotted 1/3rd share on the northern side. The southern part of the 2/3rd share, said to have been in the possession and enjoyment of the plaintiff is the second item of the schedule of property and the entire property has been stated as the first item of the suit property. On the above pleadings, the appellant / plaintiff filed a suit, seeking declaration of title and for permanent injunction against the respondent / defendant. According to the respondent / defendant, the suit property originally belonged to one Kondama Naidu. As per Ex.A1, dated 22.10.1949, one Perumal Naidu and others executed a release deed, Ex.A1 in favour of the said Kondama Naidu. As per Ex.B3, dated 07.05.1985, the defendant Veerasamy purchased the suit property from Krishnaswamy Naidu, son of Kondama Naidu and others.
3. The trial court after considering the oral and documentary evidence and after hearing the arguments advanced by both sides had dismissed the suit without costs. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal in A.S.No.21/1991 on the file of the Subordinate Judge, Tenkasi, which confirming the Judgment and Decree, passed by the trial court, dismissed the appeal, aggrieved by the same, Second Appeal has been preferred.
4. The Second Appeal has been admitted on the following Substantial Question of Law :
" Whether the courts below are correct in holding that Kondama Naidu was the owner of the entire plaint first schedule property, in view of the release deed, Ex.B.1, when the releasers themselves had only 1/3rd share in the said property."
5. The learned counsel appearing for the appellant / plaintiff contended that the plaintiff has established 2/3rd share of the plaint first schedule of property, which was originally belonged to the family of one Veerappa Naidu, son of Ketti Moorthy Naidu and that the said family was in possession and enjoyment of the property till the same was conveyed under the Sale Deed, Ex.A.1 to Swamy Naidu, father of Dr.Boopathi Raj, vendor of the plaintiff and then the plaintiff became the absolute owner of the said 2/3rd share of the plaint first schedule of property by virtue of Exs.A.2 and A3 and also in possession and enjoyment of the property. According to him, Ex.B.2, the sale deed, under which the respondent / defendant claiming the right is not a valid document. According to him, had the property not belonged to the family of the said Veerappa Naidu, there could be no necessity for Kondama Naidu for getting the release deed, Ex.B.1, from the legal heirs of the said Veerappa Naidu which would establish that Veerappa Naidu had salable interest in the property.
6. The learned counsel for the appellant would further contend that the defendant who examined himself as D.W.1 has admitted that the release deed was executed under Ex.B.1, by the legal heirs of the said Veerappa Naidu and hence, Kondama Naidu had acquired title only for 1/3rd share in the property and not more than that. Therefore, according to him, the respondent / defendant could claim only 1/3rd share in the first item of the suit property under the sale deed marked as Ex.B.2 and not for the entire property.
7. According to the respondent / defendant, one Metta Kuppusamy Naidu was the original owner of the entire property and after his demise, by partition, the suit property was allotted to his son Metta Krishnasamy Naidu and he sold the same to Kondama Naidu on 08.07.1949 under original of Ex.B.2, that after his demise, the property was inherited by his sons Krishnasamy Naidu and Rama Naidu and on 07.05.1995 under Ex.B.3 for a valuable consideration of Rs.1,125/-, the respondent / defendant purchased the same from them. The learned counsel for the appellant contended that the above pleadings of the respondent is contrary to the document, Ex.B.1, dated 22.10.1949 marked on the side of the respondent / defendant, as it would probablise the case of the appellant . plaintiff. Had the entire property belonged to Metta Kuppusamy Naidu and his descendants as stated by the respondent, there could be no possibility for Kondama Naidu, the predecessor in title of the respondent / defendant for getting any release deed from P.W.2, Perumal Naidu and others, under Ex.A.1.
8. The learned counsel appearing for the appellant drew the attention of this Court to the evidence of P.W.4, who is none other than the father of the respondent / defendant, he has stated that Swamy Naidu had purchased 2/3rd share in the first item of the property from the sons of Veerappa Naidu, son of Ketti Moorthy Naidu, under Ex.A.1, registered sale deed, dated 07.11.1949. It is not disputed that P.W.4, the father of the respondent / defendant was the village munsif of the suit village. As per his evidence, Ketti Moorthy Naidu had three sons by name 1. Pappu Naidu 2. Veerappa Naidu and 3. another Veerappa Naidu. It has been admitted that P.W.2, Perumal Naidu, son of Veerappa Naidu was one of the signatories to the release deed, Ex.B.1, executed in favour of Kondama Naidu. P.W.2, Perumal Naidu has deposed in his evidence that he was one of the grand sons of Veerappa Naidu, son of Ketti Moorthy Naidu and as such, his father Perumal Naidu, through his father Veerappa Naidu had inherited 1/3rd share of the first item of the property, which was released by Perumal Naidu and others in favour of Kondama Naidu, through whom the respondent / defendant is claiming title to the property.
9. The learned counsel appearing for the appellant contended that the courts below are incorrect in holding that Kondama Naidu was the owner of the entire first schedule of property, as he had only 1/3rd right in the property to execute the release deed, Ex.B.1. No other document was produced to substantiate that Perumal Naidu and others had absolute right for the entire property to execute the release deed in favour of Kondama Naidu.
10. There was no sustainable reason to decide that P.W.4, the father of the respondent / defendant had any malafide intention to depose evidence against his own son. The respondent / defendant who was examined as D.W.1, has stated that he did not know about Metta Kuppusamy Naidu and Ketti Moorthy Naidu and his descendants. He has not denied the fact that P.W.2, Perumal Naidu was a signatory to the release deed, Ex.B.1, dated 22.10.1949.
11. As contended by the learned counsel appearing for the appellant, I am of the view that the finding of the courts below is not based on the evidence recorded by the trial court. Both the courts below have held that the schedule of properties as described in the documents, tally with the suit property, which is not in dispute. It is seen that Exs. A1, B1 and B2 are ancient documents. The evidence of P.W.2 and P.W.4 with reference to Ex.B1 would show that Perumal Naidu (P.W.2) and others had only 1/3 right to the first item of the schedule of property.
12. Mr.S.Manohar, the learned counsel appearing for the respondent contended that there is no error or perverse finding by the courts below to interfere with the same in the second appeal and in support of his contention, he relied on the following decisions.
1. 2006 (1) CTC 675 (Madan Lal v. Bal Krishan)
2. 2006 (2) CTC 545 (S.Parthasarathy v. Durai @ Govindasamy) 3. 2005 (3) CTC 292 (Pappayammal v. Palanisamy & others)
13. The Honourable Supreme Court of India has held in the decision reported in 2006 (1) CTC 675 (Madan Lal v. Bal Krishan), that a memorandum of Appeal shall precisely state substantial question of law or substantial questions of law involved in second appeal as required under sub-section (3) of Section 100 of the Code of Civil Procedure. When High Court is satisfied that substantial question of law is involved it shall formulate that question under sub-section (4) and the Second Appeal has to be heard on the question or questions so formulated, as contemplated under sub-section 5 of Section 100 C.P.C and as such any Judgment rendered by the High Court in Second Appeal without framing substantial question of law, to be decided, has to be held as not maintainable. Here, in this case, the appellant / plaintiff has clearly stated the substantial question of law involved in the Second Appeal, apart from other grounds and this Court has admitted the Second Appeal on the aforesaid Substantial Question of Law. Therefore, the decision referred to by the learned counsel for the respondent is not applicable for the facts and circumstances of the case on hand.
14. In the case reported in 2006 (2) CTC 545 (S.Parthasarathy v. Durai @ Govindasamy), this Court has held that there was no substantial question of law involved and hence no interference of this court was warranted. If there is no substantial question of law involved, the Second Appeal has to be dismissed as held by the Honourable Apex Court and there is no dispute with regard to the said legal aspect.
15. In the decision reported in 2005 (3) CTC 292 (Pappayammal v. Palanisamy & others), this Court has held that when there is concurrent findings recorded by two courts below, which are based on proper appreciation of evidence and if there is no perversity or irregularity in the findings of the courts below in the Second Appeal preferred under Section 100 of the C.P.C, this Court cannot interfere with the same.
16. Per contra, the learned counsel for the appellant cited the decision rendered by the Honourable Apex Court reported in 2005 (5) CTC 282 (Ramlal v. Phagua), wherein the Honourable Supreme Court has held that the High Court can interfere in exercise of second Appellate Jurisdiction, if there was unreasonable and unjust findings of Courts below especially where such Courts have not appreciated evidence on record both oral and documentary. With regard to scope of interference and exercise of jurisdiction by the High Court in Second Appeal, the Apex Court has given its ruling as follows :
" 22... In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the Courts below. The High Court is right in exercising its duty, rightly so in interfering with an unreasonable and unjust findings by both the Courts below."
"23. On a careful perusal of the materials on record, it will be clear that both the Courts below did not appreciate the evidence on record both oral and documentary and, therefore, the findings arrived at by the High Court, in our opinion, does not call for any interference under Article 136 of the Constitution of India and the civil appeal deserves to be dismissed."
17. The learned counsel appearing for the appellant / plaintiff relying on the above decision would contend that the appellant / plaintiff is claiming right to the property through the legal heirs of Swamy Naidu. As per the sale deed, Ex.A2, executed by Dr.Boopathi Raj, he had inherited the 2/3 share in the first item of the property through his father Swamy Naidu who had derived title under the sale deed, Ex.A1, dated 07.11.1949 executed by Veerappa Naidu son of Ketti Moorthy Naidu. The document, Ex.A1 relates to the suit property is not in dispute. Further, both Exs.A1 and B1 are original ancient documents. Both the appellant and respondent have filed Genealogy tree in order to highlight the source of origin, through which the property was acquired by them.
18. The learned counsel appearing for the appellant contented that though the respondent / defendant would contend that Metta Kuppusamy Naidu was the original owner of the entire suit property and his son Krishnaswamy Naidu inherited the same, contrary to the said pleadings, defendant has taken another plea that Kondama Naidu had acquired title by way of sale deed, dated 08.07.1949 marked as Ex.B2. The respondent / defendant has also produced Ex.B1, dated 22.10.1949, release deed executed by aforesaid Perumal Naidu and his sons Ayyavu Naidu and Perumal Naidu (P.W.2).
19. The respondent / defendant as D.W.1 has admitted in his cross examination that Perumal Naidu who executed the release deed, Ex.B1 in favour of Kondama Naidu was the son of Veerappa Naidu. P.W.2, Perumal Naidu has deposed in his evidence that he himself and his brother, along with his father Perumal Naidu had executed release deed in respect of their 1/3rd share in favour of Kondama Naidu, under Ex.B1. It is not disputed by the respondent / defendant that P.W.2 was not the Perumal Naidu, one of the signatories to Ex.B1, dated 22.10.1949.
20. The courts below disbelieved the evidence of P.W.2, without any reason. It has been clearly stated by P.W.2 , that his brother Ayyavu Naidu and their father Perumal Naidu had jointly released their 1/3 right in the first item of the property in favour of Kondama Naidu through whom the respondent / defendant is claiming title to the property. The said Perumal Naidu has stated in his evidence that Ketty Moorthy Naidu was the original owner of the property, who had three sons by name Pappu Naidu, Veerappa Naidu and another Veerappa Naidu. His father Perumal Naidu was one of the grand sons of the said Ketty Moorthy Naidu and his branch was entitled to 1/3rd share in the property. Ketty Moorthy Naidu's other son Pappu Naidu and another Veerappa Naidu, each were entitled to 1/3rd share in the property. The said other Veerappa Naidu and Pappu Naidu had sold their 2/3 share of property under Ex.A1 to Swamy Naidu, through whom the appellant / plaintiff is claiming title to the property. The valuable evidence of P.W.2, who was one of the executors of Ex.B1, release deed, dated 22.10.1949, relied on by the respondent / defendant cannot be simply brushed aside by the courts below. Further, it has been admitted that P.W.4 is none other than the father of respondent / defendant, who was aged about 80 years on the date of deposing evidence and that he was also the former village munsif of the suit village, which are not disputed. There is no strong motive attributed against the said witness that he had deposed evidence against his own son, the respondent / defendant.
21. Having obtained the release deed from Perumal Naidu, P.W.2 and his brother Ayyavu Naidu and their father Perumal Naidu, one branch of the three sons of Ketty Moorthy Naidu, the respondent is estopped from disputing the right of the other sons of the said Ketty Moorthy Naidu, namely Pappu Naidu and Veerappa Naidu, who had executed the sale deed, Ex.A1 in favour of Swamy Naidu, father of Dr.Boopathi Raj, who conveyed 2/3 share in the property under Ex.A2, dated 15.09.1983 in favour of the appellant / plaintiff.
22. As contented by the learned counsel for the appellant, Ex.B1 and the evidence of P.W,2, one of the executors of the release deed, Ex.B1 and the evidence of P.W.4, the father of the respondent / plaintiff could not have been ignored by the courts below. As per the oral and documentary evidence, it has been established that Pappu Naidu and Veerappa Naidu, had 2/3rd right in the schedule of property, which was conveyed by them in favour of Swamy Naidu, the predecessor in title of the appellant / plaintiff under Ex.A.1.
23. Therefore, in the light of the decision rendered by the Apex Court reported in 2005 (5) CTC 282 (Ramlal v. Phagua), I am of the considered view to hold that the courts below have not given their finding on the basis of the evidence available on record with reference to Ex.B1, release deed executed by P.W.2 and others in favour of Kondama Naidu, father of Krishnaswamy Naidu and Ram Naidu, through whom the respondent claims title.
24. The learned counsel for the appellant / plaintiff contented that Perumal Naidu, P.W.2, Ayyavu Naidu and their father Perumal Naidu had only 1/3rd share in the suit property, but without mentioning their 1/3rd share, they have wrongly executed the sale deed, as if the entire property belonged to them.
25. The evidence of P.W.2, one of the executors of Ex.B1 and evidence of P.W.4, the father of the respondent / defendant would establish that the other two branches of Ketty Moorthy Naidu, namely Pappu Naidu and Veerappa Naidu had 2/3rd share in the suit property, which was conveyed by them to Swamy Naidu, under Ex.A1. His son Dr.Boopathi Raj inherited 2/3 share of the property and executed the sale deed, Ex.A2 in favour of the plaintiff. It is pertinent to note that Kondama Naidu, as per original of Ex.B2, had allegedly purchased the property from Krishnaswamy Naidu son of Metta Kuppuswamy Naidu. But, the said Kondama Naidu had subsequently obtained a release deed from P.W.2, Perumal Naidu, his brother Ayyavu Naidu and their father Perumal Naidu under Ex.B1 on 22.10.1949.
26. Had Krishnaswamy Naidu son of Metta Kuppuswamy Naidu been the absolute owner of the property, there could have been no need for Kondama Naidu for getting the release deed from P.W.2 and others under Ex.B1 in the year 1949 and that too, within 3 r months from the date of Ex.B2. Therefore, the normal legal presumption would be that though Kondama Naidu had got the sale deed, the original of Ex.B2, executed from Krishnaswamy Naidu, son of Metta Kuppuswamy Naidu, subsequently, as the property belonged to Ketty Moorthy Naidu family, he got the release deed from P.W.2, Perumal Naidu and others, being the one branch of Ketty Moorthy Naidu. The evidence of P.W.2 and P.W.4 would clearly corroborate the fact that the original owner of the property was only Ketty Moorthy Naidu, who had three sons. P.W.2 and others were one branch of the said Ketty Moorthy Naidu and as such, they had only 1/3 rd right to execute the release deed, but without specifying their share correctly, they executed Ex.B1 in favour of Kondama Naidu, through whom the respondent claims title. In view of Ex.B1, release deed, Kondama Naidu had disowned the genuineness of the sale deed, Ex.B2. Therefore, the sons of Kondama Naidu, namely Krishnaswamy Naidu and Ram Naidu could have executed the sale deed in favour of the defendant only in respect of 1/3rd share. As it has been admitted that the suit property is a vacant site, it has to be decided on the basis of the principle that possession follows title. But for the alleged partition pleaded by the appellant, except the oral evidence, there is no other supporting materials available to establish that there was oral partition as stated by the appellant. Therefore, in the light of the decision of the Honourable Supreme Court reported in 2005 (5) CTC 282 (Ramlal v. Phagua), I hold it reasonable to allow the Second Appeal and declare that the appellant / plaintiff is entitled to 2/3rd share in the suit first item of property, and as the appellant has not established the alleged oral partition, it has to be decided that the appellant and the respondent are in joint possession and enjoyment of the property and therefore, the appellant / plaintiff has to work out her remedy only by way of partition, as per procedure known to law.
27. In the result, the Second Appeal is allowed and the Judgment and Decree passed by the courts below are set aside and the suit is decreed only in respect of the declaratory prayer, thereby, declaring that the appellant / plaintiff is entitled to 2/3 share in the first item of the suit property and as such she is at liberty to workout her remedy, by way of partition before the appropriate forum, as per procedure known to law. The appeal is disposed of accordingly. No order as to costs.
tsvn To
1. The Subordinate Court Tenkasi.
2. The District Munsif Court Sankarankoil.