Madras High Court
A.Ramasamy Mooper vs A.Ramamoorthy on 7 January, 2011
Author: R.S. Ramanathan
Bench: R.S. Ramanathan
BEFORE THE MADURAI BENCH MADRAS OF HIGH COURT Dated: 07/01/2011 CORAM THE HON'BLE MR. JUSTICE R.S. RAMANATHAN Second Appeal (MD) No.648 of 2005 & C.M.P.No.4579 of 2005 A.Ramasamy Mooper .. Appellant Vs. 1.A.Ramamoorthy 2.A.Lakshmana Mooper .. Respondents SECOND APPEAL filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 15.09.2004 made in A.S.No.101 of 2003 on the file of the I Additional Subordinate Court, Madurai, partly confirming the Judgment and Decree dated 11.02.2003 passed in O.S.No.518 of 1997 on the file of the District Munsif Court, Tirumangalam. !For Appellant ... Mr.R.G.Sankar Ganesh ^For Respondents... Mr.M.V.Venkataseshan :JUDGMENT
The plaintiff is the appellant. The appellant filed the suit in O.S.No.518 of 1997 on the file of the District Munsif Court, Tirumangalam, for declaration and for injunction.
2. The case of the plaintiff was that item Nos.1 to 8 of the plaint schedule properties belonged originally to Perumal Mooper, who was the Junior paternal grandfather of the plaintiff and defendants and his wife was Nachiammal and the said Perumal Mooper executed a registered will dated 31.08.1963 and bequeathed item Nos.1 to 3 in favour of his wife namely, Nachiammal and item Nos.4 to 8 to the plaintiff and the said Perumal Mooper died on 08.12.1963. Thereafter, the will came into effect and the plaintiff and Nachiammal took possession of the respective properties and under a sale deed dated 22.03.1972, the said Nachiammal sold item Nos.1 to 3 which she got under the will to the plaintiff and under a registered sale deed dated 31.08.1963, Nachiammal sold item Nos.9 and 10 to the plaintiff and item Nos.11 and 12 were purchased by the plaintiff from one Srinivasa Achari under a registered sale deed dated 20.04.1965. Item No.13 was purchased by the plaintiff from one Seethalaskhmi Ammal under a registered sale deed dated 22.03.1969. Therefore, the plaintiff became the absolute owner of entire 13 items of property and the defendants attempted to interfere with the possessions and therefore, filed a suit for declaration and for injunction.
3. The defendants contested the suit disputing the will dated 31.08.1963 and also contended that the sale deed dated 22.03.1972 was created by the plaintiff for the purpose of getting right over the property. Nachiammal had no right or title over the item Nos.9 and 10 of the suit properties and therefore, the alleged sale of item Nos.9 and 10 by Nachiammal in favour of the plaintiff will not confer any right on the plaintiff and item Nos.11 and 12 were purchased from Srinivasa Achari and the sale consideration was paid out of the joint family funds and the property was purchased in the name of the plaintiff and on 11.07.1980 there was a partition between the plaintiff and defendants and under that partition, the plaint schedule properties were divided among the three sons namely, the plaintiff and defendants and item No.7 was sold by the plaintiff and defendants on 18.03.1994, to Kalaimagal Sabha and the defendants are in possession and enjoyment of item Nos.1, 4, 5, 6, 8 and 9 and therefore, the plaintiff is not entitled to the relief prayed for.
4. The trial court dismissed the suit holding that the will Ex.A.14 alleged to have been executed by Perumal Mooper was not executed, while he was in a sound deposing state of mind and the will is not a valid one. Therefore, the plaintiff cannot claim any right in respect of item Nos.1 to 8 and in respect of item Nos.9 and 10, Nachiammal had no right to execute the said sale deed in favour of the plaintiff and therefore, the plaintiff cannot claim any right under Ex.A.8, sale deed in respect of item Nos.9 and 10. Item Nos.11 and 13 were purchased out of the income from the joint family and therefore, the plaintiff cannot claim any right over the same.
5. The First Appellate Court partly allowed the appeal holding that the plaintiff is entitled to declaration in respect of item Nos.11, 12 and 13 and in respect of the remaining items namely, item Nos.1 to 10, the plaintiff has no right and confirmed the findings of the trial court in respect of item Nos.1 to
10.
6. Aggrieved by the same, the Second Appeal has filed by the plaintiff/appellant.
7. The Second Appeal was admitted on the following substantial questions of law:-
"1. Whether the sales under Ex.A.8 and Ex.A.15 do not confer any right to the plaintiff/purchaser, so as to enable him to claim the relief of declaration of title?
2. Whether the registered will Ex.A.14 is not conclusive in nature, irrespective of lack of oral evidence for its execution?
3. Whether the Revenue Records alone are sufficient to prove the factum of title and possession?"
8. Admittedly, the plaintiff and defendants 1 and 2 are brothers. They are the sons of Alazhgu Mooper. It is admitted that Periyakaruppa Mooper was the common ancestor and he had three sons by name, Alazhgu Mooper, Solaimalai Mooper and Perumal Mooper. The plaintiff and defendants are the grand sons of Alazhgu Mooper through his son Alazhgu Mooper. The other two sons of Periyakaruppa Mooper, Solaimalai Mooper and Peruaml Mooper died without leaving any heirs and the case of the plaintiff is that Perumal Mooper the son of Periyakaruppa Mooper was in possession and enjoyment of item Nos.1 to 8 of this properties and under the will Ex.A.14 dated 31.08.1963, he bequeathed item Nos.1 to 3 in favour of his wife Nachiammal and item Nos.4 to 8 in favour of the plaintiff. Ex.A.8 is the sale deed executed by Nachiammal in favour of the plaintiff in respect of item Nos.1 to 3 which she got under will Ex.A.14 and Ex.A.15 is the sale deed by Nachiammal in favour of the plaintiff in respect of item Nos.9 and 10. Therefore, we will have to see whether the will Ex.A.14 was executed by Perumal Mooper.
9. It is contended by the learned counsel for the appellant that Ex.A.14 is a registered will, executed in the year 1963 and it is more than 30 years old and therefore, the presumption under Section 90 of the Indian Evidence Act, 1872 can be drawn in favour of the said document. Therefore, it must be presumed to have been duly executed and attested by the persons by whom is purported to be executed and attested and therefore, the Courts below erred in rejecting the Ex.A.14.
10. On the other hand, the learned counsel appearing for the respondent submitted that though presumption can be drawn regarding due execution and attestation of the Ex.A.14 as per Section 90 of the Indian Evidence Act, 1872 it has to be proved by the appellant that Perumal Mooper was the owner of the property and he had right over the properties and without proving the same, the plaintiff/appellant cannot claim any right under the will.
11. Mr.M.V.Venkataseshan, learned counsel appearing for the respondents further submitted that the item Nos.1 to 8 could not have been enjoyed by the appellant under the will and it is admitted that in respect item No.7, the plaintiff and defendants jointly executed the sale deed under Ex.A.18 and if really the appellant got item Nos.4 to 8 under the will from Perumal Mooper there is no necessity for the appellant to execute the sale deed along with the respondents/defendants. In respect of item No.7 it was proved that the property was enjoyed by the parties in common and it was not enjoyed by the plaintiff exclusively to the exclusion of the defendants. It is seen from the recital in Ex.A.18 that the property belonged to them ancestrally and they are selling the same to Kalaimagal Sabha. There is no mention about the will Ex.A.14 in the sale deed Ex.A.18. The plaintiff also, did not file any document to prove their possession of items Nos.1 to 8.
12. On the other hand the respondents/defendants filed Exs.B.5 to B.32 Kist receipts to prove that they are in possession of the property. Further, except oral evidence of P.W.1 the plaintiff has not proved his possession by producing Kist receipt or Patta or Adangal or by examining any other witnesses. Having regard to the fact that in the sale deed Ex.A.18, the will was not mentioned and the sale was executed by all the parties, it is made clear that the plaintiff would not have got the properties under the will Ex.A.14. Therefore, the findings of the Courts below, that Ex.A.14 was not executed by the testator Perumal Mooper and it was not acted upon and the plaintiff did not get any right or title under Ex.A.14 is correct and does not call for any interference. Therefore, the second substantial question of law is answered against the plaintiff/appellant.
13. The plaintiff claims right over item Nos.1 to 3 under Ex.A.8 and in respect of item Nos.9 and 10 under Ex.A.15. Under the will Ex.A.14 item Nos.1 to 3 was given to Nachiammal and she in turn sold the property to the plaintiff under Ex.A.8. It has been held that Ex.A.14 was not a valid will and it was not acted upon and therefore, Nachiammal would not have obtained any right or title under the will in respect of item Nos.1 to 3 and therefore, the plaintiff also will not get any right in respect of item Nos.1 to 3 under Ex.A.8. Ex.A.15 is a sale deed by Nachiammal in favour of the plaintiff in respect of item Nos.9 and
10. Except Ex.A.15, no documents were filed by the plaintiff to prove his possession and enjoyment of the said property. The plaintiff has also not proved how Nachiammal got items No.9 and in the sale deed Ex.A.15 also he has not stated how Nachiammal got title to the properties. Further the plaintiff also did not file any document to prove his possession in respect of item Nos.9 and 10 to prove that after the said sale he is in possession of the said property.
14. Considering all these aspects, both the Courts below, rightly held that Nachiammal did not have any right or title over the item Nos.9 and 10 and therefore, the plaintiff also did not get any right under Ex.A.15. I am in complete agreement with the said findings of the Courts below and the substantial question of law No.1 is also answered against the plaintiff/appellant.
15. As regards the third substantial question of law, it is no doubt true that Revenue Records will not prove title. But, at the same time when the plaintiff is not able to prove his title over the property and the defendants are able to prove that they are in possession of the properties by producing Revenue Records, the Court cannot accept the case of the plaintiff regarding declaration of title to that property. In this case except the sale deed Ex.A.15 the plaintiff has not filed any document to prove his possession subsequent to Ex.A.15 in respect of item Nos.9 and 10.
16. On the other hand, the respondents/defendants filed patta and adangal and also Kist receipts in respect of those items and that would prove that they are in possession of the said property, though the said patta and adangal will not prove title in favour of the defendants.
17. Having regard to the fact that the defendants proved that the properties were the joint family properties of the plaintiffs and defendants and under Ex.B.1 and Ex.B.2 the plaint schedule properties 1 to 6 and 8 to 10 were allotted to their share and the plaintiff has not proved his possession, the Courts below rightly disbelieved the case of the plaintiff in respect of item Nos.9 and 10 also and according to me, the findings of the Courts below, is proper and there is no need to interfere with the said findings. Hence, the substantial question of law No.3 is also answered against the plaintiff/appellant.
18. In the result , the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
smn To
1.The I Additional Subordinate Court Madurai
2.The District Munsif Court Tirumangalam