Madras High Court
V.Pooliah vs S.Velmurugan
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 14.12.2017 Delivered on: 27.09.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.BASKARAN
S. A.(MD) No.568 of 2010
1.V.Pooliah
2.P.Velammal … Appellants/Defendants
Versus
1. S.Velmurugan
2.Selvasundaram ... Respondents/Plaintiffs
Prayer : The Second Appeal filed Under Section 100 of C.P.C against the
Judgment and decree dated 17-12-2009 made in A.S.No.60 of 2009 on the
file of Additional Subordinate Judge of Tirunelveli confirming the judgment
and decree dated 02-07-2009 made in O.S.No.22 of 2001 on the file of 1st
Additional District Munsif Court, Tirunelveli.
For Appellants : M/s. B.S.G.Firm S.Nates Rajaa
For Respondents : M/s. S.Meenakshi Sundaram, Senior Counsel
For S.Yasar Arafath
*********
http://www.judis.nic.in
2
JUDGMENT
The Defendants are the Appellant in this Second Appeal. The Plaintiffs are the respondent in this Second Appeal. The plaintiff filed a Suit before the 1st Additional District Munsif Court, Tirunelveli in O.S.No.22 of 2001 praying declaration that the suit property belongs to the plaintiffs and consequential relief of permanent injunction restraining the defendants from interfering the peaceful possession and enjoyment of the suit property.
2. Parties are referred to as per their ranking in the suit.
3. Suit for declaration and consequential relief of permanent injunction.
4. Plaintiff’s case in brief :
The suit property originally belonged to Kombathevar. He has got three sons namely Murugan, Esaki Muthu and Vallinayagam and two daughters namely Polaiah and Velammal the defendants herein. The above said Komba Thevar executed a registered last will dated 09-01-1999 allotting the suit property in favour of above said his three sons. The Kombaiya Thevar died on 14-05-1993. As per the will deed the suit property belonged to the above said three sons immediately after the death of Kombaiya Thevar. The above said three sons of Kombaiya Thevar sold the suit http://www.judis.nic.in 3 property infavour of the plaintiffs on 12-06-1996 and 18-02-1997 after getting due consideration for the same. From the date of purchase the plaintiffs have got title, possession and enjoyment of the suit property. Since the defendants were proclaiming that they have got right over the suit property, the plaintiffs are constrained to issue notice through their counsel on 24-11-2000. The defendants issued a reply notice dated 01-12-2000 through their counsel with false allegations. The contention in the reply notice that there was a oral partition and Kaithadi was effected and the suit property was allotted to the share of Vallinayagam and the said Vallinayagam executed a power of attorney in favour of 1st defendant on 01-08-1994 and the 1st defendant executed a sale deed in favour of 2nd defendant on 13-12-1994 on the basis of the power of attorney are absolutely false. In fact, the said 13-12-1994 sale deed is legally not valid, no such oral partition was effected and no such Kaithadi was executed. The plaintiffs are bonafide purchaser of the suit property. Hence the suit.
5.The case of the defendants in brief:
The suit property and other properties were self acquired properties of the deceased Kombaiya Thevar. The plaintiffs have to strictly prove that the deceased Kombaiya Thevar executed the alleged will. After the death of Kombaiya Thevar, his sons and daughters partitioned the properties of http://www.judis.nic.in 4 Kombaiya Thevar by way of oral partition. In that partition Kulavanigapuram Survey Number 995/1 and house sites were allotted to them and they are enjoying the same as per the allotment and consequent to the oral partition on 22-08-1993 a Kaithadi was executed. In that Kaithadi Plots Nos. 30,32,34 were allotted to Vallinayagam and the said Vallinayagam executed a registered General Power of Attorney on 01-08-1994 in favour of 1 st defendant. Thereafter on 13-12-1994 the first defendant executed a sale deed in respect of the above said property in favour of the 2nd defendant and thereby the 2nd defendant has got absolute right, title, possession and enjoyment of the suit property. The sale deeds in favour of the plaintiffs will not bind the defendants. Hence, the suit may be dismissed.
6. The trial court framed the following issues:
1) Whether will dated 09-01-1991 is valid,
2). Whether the plaintiffs are the bonafide purchasers,
3). Whether Kaithadi Dated 22-08-1993 is valid,
4) Whether the Registered General Power of Attorney dated 01-08-1994 is valid,
5). Whether the sale deed dated 13-12-1994 in favour of 2nd defendant is valid,
6). Whether the suit property is in enjoyment of the 2nd defendant, http://www.judis.nic.in 5
7).Whether the plaintiff is entitled to the relief of declaration,
8).Whether the plaintiff is entitled to the relief of permanent injunction,
9). To what relief the plaintiffs are entitle.
On the side of the plaintiffs, the 1st plaintiff was examined as PW-1 and one M.Liyakath Alikan was examined as PW.2 and exhibits A1 to A7 were marked. On the side of the defendants, the 1st defendant was examined as DW-1 and one P.Ravindranaiar was examined as DW-2 and exhibits B-1 to B15 were marked.
7. On a consideration of the oral and documentary evidence adduced and submissions made by the respective parties, the trial court by its decree and judgment dated 02-07-2009 made in O.S.No.22 of 2001 on the file of 1st Additional District Munsif Court, Tirunelveli decreed the suit in favour of the plaintiffs as prayed for with cost finding the issues No. 1 to 8 in favour of the plaintiff and no other relief is entitled in respect of issue No.9.
8. Aggrieved over the judgment and decree of the trial court dated 02-07-2009 made in O.S.No.22 of 2001 on the file of 1 st Additional District Munsif Court, Tirunelveli, the appellants/defendants in the suit preferred the first appeal in A.S.No.60 of 2009 on the file of Additional Subordinate Judge of Tirunelveli.
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9. The first appellate court, after hearing both side and considering the materials on record raised following points for consideration:-
1). Whether the will dated 09-01-1991 is valid,
2).Whether the sale deed in favour of the 2nd defendant dated 13-12-1994 is valid,
3).Whether the plaintiff is entitled to the relief of declaration
4).Whether the plaintiff is entitle to the relief of permanent injunction,
5) Whether the appeal is to be allowed.
Before the 1st appellate court, the appellants/ defendants filed I.A.No.96 of 2009 under order 41 Rule 27 CPC to receive two documents as additional evidence. The first appellate court on appreciation of the materials placed on record, was pleased to dismiss the first appeal preferred by the defendants as per its judgment, dated 17-12-2009 made in A.S.No.60 of 2009 and I.A.No.96 of 2009 without cost finding all the points raised in favour of the respondents/plaintiffs in the first appeal confirming the judgment and decree dated 02-07-2009 made in O.S.No.22 of 2001.
10. Aggrieved over the same the defendants/ appellants in the first appeal preferred this second appeal. For the sake of the convenience the parties herein will be called as per the cause tile in the plaint. http://www.judis.nic.in 7
11. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:-
1.Whether the courts below have committed an error in holding that the will of Komba Thevar propounded by the plaintiffs need not be proved in accordance with section 68 of Indian Evidence Act, 1872 simply because the existence of the will not denied or disputed by the opposite party?
2.Whether the courts below have committed an error in not framing an issue regarding the genuineness of Ex.B-1-Power of Attorney?
3. Whether the first appellate court has committed an error in not projecting the question of validity of Ex.B-1-Power of Attorney as a point for consideration in the appeal, even though such question had been framed by the trial court as an issue and decided in the negative on the simple ground that the partition chit (kaithadi) was not produced by the defendants?
4. Whether the first appellate court has committed an error in holding that the partition chit (Kaithadi) dated 22-08-199, sought to be produced as additional evidence before the first appellate court was not admissible for want of registration, when it was the case of the defendants that the said document was nothing but a document reducing the terms of family arrangement, which took place earlier, into writing?
5. Whether the courts below have rendered a perverse finding to the effect that Ex.B-2-Sale deed came into existence subsequent to the http://www.judis.nic.in 8 execution of Ex._B-3-Sale deed and thus no valid transfer of title under Ex.B-3 in respect of the suit property could have been effected?.
6. Whether the courts below have committed an error in not considering the second defendant/second appellant as a purchaser of a share of one of the sharers in the suit property and thus the plaintiffs would not have acquired absolute title to the entirety of the suit property?.
12. (i) The learned counsel for the appellants in the second appeal argued that the both the courts below are legally not correct in holding that the Will has been proved when the original has not been produced and none of the witnesses were examined to prove the execution of the Will as required under section 68 of the Evidence Act. He further argued that even if the Will is admitted as acted upon one of the son of Kombaiya Thevar is also having one third share in the suit property and so the power deed under Ex.B.1 executed by the said Vallinayagam is valid and the above facts has not been appreciated legally by the both the courts below. The learned counsel for the appellants submitted that the courts below have not properly read the sequence of the Will which disclose the intention of the testator that by selling the suit properties and other plots, the marriage of one of his daughter has to be performed and the condition was attached to the enjoyment of the property, the family members decided not to give effect to the Will and orally partitioned the properties and in that the suit property, http://www.judis.nic.in 9 the plot No.32 was allotted to Vallinayagam, who has given power of attorney under Ex.B.1 to the first defendant who in turn sold to the 2nd defendant under Ex.B-2. It is further argued that both the courts below even without perusing Ex.B-1 to B-3 have held that Ex.B-2 is subsequent to Ex.B-3 which is also factually not correct. Further, both the courts below have failed to consider Ex.B-4 mortgage deed dated 04-04-1995 which is executed long prior to the alleged sale deed Ex.A1 & A2. He further contented that the first appellate court failed to appreciate the partition list dated 22-08-1993 is true and legally valid and ought not have dismissed the petition to receive additional documents on the ground that the same is unregistered one which is not correct as Family Arrangement recording the earlier partition does not require registration and both the courts below are not legally correct in granting decree as prayed for on the basis of Ex.A1 & A2 which are subsequent to Ex.B-3. In the said circumstances, it is stated that the appeal may be allowed and seeks to set aside the judgment and decree of the both the courts below and further prays that the suit be dismissed.
(ii) Whereas, on the other hand, the learned counsel for the respondents in the second appeal would contend that the courts below have correctly and properly appreciated the oral and documentary evidence http://www.judis.nic.in 10 available on records and come to the correct conclusion which cannot be assailed. He further argued that both the courts below properly appreciated the evidence of proving Ex.A7-Will, since it is specifically admitted by DW-1. Both the courts below have properly discussed the validity of Ex.B-1 to B3 and came to the correct conclusion that they are not valid documents and in these circumstances, the argument advanced by the learned counsel for the appellants in the second appeal is not sustainable under law. Further it is argued that when no title is passed in favour of the 2nd defendant Ex.B-4/Registered mortgage deed has no value at all. In the circumstances, the judgment and decree of the both the courts are legally sustainable and further the appellants herein attempted to file document in the first appellate stage under order 41 Rule 27 which are all Xerox copies and the same has been correctly dismissed by the first appellate court and in such circumstances, the argument advanced by the learned counsel for the appellants herein also is not legally sustainable and the present appeal may be dismissed.
13. Considering the submissions made by both sides and materials on record, the following points arise for consideration in the second appeal.
(1) Whether the judgment and decree of the court belows are against http://www.judis.nic.in 11 law and the same is to be interfere with and the same is to be set- aside and suit is to be decreed.?
(2) Whether the 2nd Appeal is to be allowed?
14. (a) Admitted facts are that the suit property and other properties originally belonged to Kombaiah Thevar and he is survived by three sons namely Murugan, Esaiki Muthu and Vallinayagam and two daughters who are defendants in the suit (appellants herein) and the said Kombaiah Thevar died on 14-05-1993.
(b) The plaintiffs produced Ex.A7 copy of Will dated 9-1-1991 said to have been executed by Kombaiah Thevar in which the suit property and some other properties were allotted to his three sons, which is challenged by the defendants. The trial court found that the said Ex.A.7-Will was admitted by DW-1 in his cross examination and as such, the execution of the Will is proved. The first appellate court also came to the conclusion that the defendant’s side witness admitted that Ex.A.7-Will was executed by Kombaiah Thevar and thus the admitted documents need not be proved and arrived at the conclusion that Ex.A7 Will is true document.
15. Now it is to be seen whether the decisions of the courts below are sustainable or not?
(i) The original Will has not been produced, but the copy of the Will has http://www.judis.nic.in 12 been produced. The first defendant who was examined as DW-1 has specifically admitted during cross examination that Ex.A7 was executed by Kombaiah Thevar and some of the properties allotted to his daughter as per the Will and she also read the Will and the copy of the Will is also available with her and the said Will is the last Will of Kombaiah Thevar. The specific and clear admission of DW-1 that Ex.A.7 Will was executed by Kombaiah Thevar and the same was acted upon would clearly go to show that the Will is proved. Admission is the best evidence even in respect of the proof of Will is concerned. Only when the Will is denied or suspicious circumstances are created by other parties, the proof of will by examining one of the attesting witnesses is absolutely necessary. When the other party specifically admits the Will, there is no need or necessary of examining the attesting witnesses and in such circumstances, there is no legal infirmity in the findings of the both the courts below that the will is proved.
(ii) As per Ex.A-7 Will, three brothers Murugan, Esaiki Muthu and Vallinayagam have got equal share in the suit property, but the defendants have come forward to say one way that the Will was not proved and another way, the Will was not acted upon, since there is condition incorporated in the Will and one another way that if it taken as proved Vallinayagam has got 1/3 (one by three) share in the suit property and so he executed a power of attorney in favour 1st defendant under Ex.B1 and the first defendant as a http://www.judis.nic.in 13 power of attorney of Vallinayagam, executed a sale deed Ex.B-3 in favour of the 2nd defendant and so, the 2nd defendant has got right in the suit property.
(iii) The plaintiffs have come forward with Ex.A1 and A2, the two sale deeds in respect of entire suit property, said to have been executed by the three sons of Kombaiha Thevar. Ex.A-1 is dated 12-06-1996 and Ex.A-2 is 18-02-1997 whereas Ex.B-1 is dated 01-08-1994, Ex.B-2 and B-3 are one and the same dated 13-12-1994. As such, Ex.B1 to B3 are earlier than Ex.A1 and A2. Now it is to be seen whether there was an oral partition and the suit property was allotted to Vallinayagam. Though the defendants have come forward to contend that oral partition has taken place and subsequent to that Kaithadi was effected, they have not clearly stated the date in which oral partition took place and the alleged Kaithadi which is said to have been executed subsequent to the oral partition has not been produced before the trial court and further the defendants have not produced the original of the alleged Kaithadi before the first appellate court and the first appellate court also rightly dismissed the application since the original was not produced and further it was sought to be produced belatedly in the appellate stage. Once the defendants pleaded there was a Kaithadi subsequent to oral family arrangement and the Kaithadi was not registered, it is the duty of the defendants to produce the original Kaithadi before the trial court itself, but http://www.judis.nic.in 14 they have failed to do so and in the circumstances, the dismissal of application I.A.No.96 of 2009 by the first appellate court, in my considered view is appropriate and correct.
(iv) The defendants have not proved the oral partition by specifically mentioning the date, place and witnesses who are all present. Further, they have not produced the original of Kaithadi which would go to show that the alleged oral family arrangement is not proved. In such circumstances, it is clear that as per the Will only, the three sons of Kombaiya Thevar only had got right and they are having equal shares in the suit property and thereby Vallinayagam had 1/3 share in the suit property. However, contrary to his 1/3 share, he executed a power of attorney Ex.B-1 in favour of 1 st defendant in respect of entire suit property. Though he has executed for entire suit property , it can be taken to be in respect of his 1/3 share in the suit property.
16. Now it is to be seen whether his 1/3 share in the suit property has been conveyed in favour of 2nd defendant. Ex.B-3 is the document registered Parasalai at Sub-Registrar Office in Kerala State, which is not the place having the jurisdiction of the suit property, but in the sale deed Ex.B-3 another property within Parasalai jurisdiction situated Karumanoor Desam 200 Jenmam, Survey No.149/5, out of Acre 8 and 94 cents in north portion, http://www.judis.nic.in 15 6 acre and 17 cents in east portion cents, out of 45 cents and out of 20 cents 10 Sq.ft site was shown as second item of the property in Ex.B-3 and sale deed is executed. So, the defendants would contend that Parasalai property is also sold under Ex.B-3 and as such, the Parasalai Sub-Registrar office has jurisdiction to register Ex.B-3 which includes suit property as well as the property within Parasalai Jurisdiction. It is pertinent to note that Ex.B-2 is the document relating to purchase of property in item-II of Ex.B-3 and the same was purchased by the first defendant on the same date of Ex.B-3 i.e., 13-01-1994. The Ex.B-3 document Number is 12542/1994 and Ex.B-2 is 12541/1994 and both the documents are registered at Parasalai Sub- Registrar Office. So Ex.B-2 is the earlier document. It seems that item-II in Ex.-B-2 was registered earlier and Ex-B-3 was registered subsequent to Ex- B-2, but contrary to the same, in the trial court judgment Ex.B-2 document number is mentioned as 2186 whereas Ex.B-3 document is mentioned as 1931. Thus, the trial court held that the first defendant has no valid title in respect of Survey Number 149/5 property. The trial court finding in this aspect is not correct and the correct registration numbers are 12541 and 12542 of 1994 for Ex.B-2 and B3 respectively. The date and time of registration is not a criteria for passing on title under a document, but the date and time of execution of a document is the main criteria, hear Ex.B-2 and B-3 are executed on one and the same day and Ex.B-2 was registered earlier than Ex.B-3. So it cannot be said that no title passed in respect of II- http://www.judis.nic.in 16 item of B-3 property, to first defendant at the time of execution of Ex.B-3 document.
17. Now it is to be seen whether 2nd item of B-3 property was available at the place mentioned. In this aspect the VAO of Parasalai viz. Liyakath Alikan was examined as PW-2 and as per his evidence, no 200 village number is available to Karmanoor Desam and in Parasalai village only upto 50 numbers were available to Karmanoor Desam and in Karmanoor Desam total extent available for Survey Number 149/5 is 30 cents only and no extent of 8 acres 94 cents is available in S.No.149/5 and particularly Karmanoor Desam 200 jenmam, S.No.149/5 out of 8 acres 94 cents northern side, out of 6 acres 17 cents eastern side, 45 cents property was not available. Another VAO-DW-2 was examined and he deposed contrary to PW-2 and he deposed that the total extent for S.No.149/5 is 233.2 acres. So the evidence of PW-2 and DW-2 are contradictory to each other and on the side of the defendants, they produced Ex.B-14 copy of sale deed of Bakiyanathan Nadar dated 06-03-1993 and Ex.B-15 is the A-register of the Neiyatrankarai, Parasalai Village, DW-1 admits that Ex.B-15 will not reflect true version, further Ex.B-14 was marked subject to an objection that the same should have been marked through the party concerned. Here Ex.B-14 was marked through DW-1 who is not party to Ex.B-14 and when contra evidence is available between PW-2 and DW-2 in respect of 2nd item of http://www.judis.nic.in 17 Ex.B-3 property and item-II of Ex.B-3 property was purchased by the 1st defendant on 13-12-1994 under Ex.B-2 and on the same day Ex B-2 property as well as suit property was sold by 1st defendant in his individual capacity for Ex-B-2 property and as a power of attorney of Vallinayagam in respect of suit property under Ex.B-3 dated 13-12-1994 in favour of 2 nd defendant, it is the duty of the defendants to prove the existence of Ex.B-2 property through the party to the document under Ex.B-14. But Party to Ex.B-14 document was not examined to prove the existence of Ex.B-2 property. Further, the parties to the suit property are in Tirunelveli District, but they went to Parasalai on 13-12-1994 and purchased Ex.B-2 property by 1st defendant and on the same day it was sold as a next document along with suit property under Ex.B-3, would go to show that the properties under Ex.B-2 was not in existence and fictitious property was purchased under Ex.B-2 in order to invoke the jurisdiction of Parasalai SRO, for the purpose of execution of Ex.B-3 and so when Parasalai has no jurisdiction to register document in respect of suit property since item-II of Ex.B-3 property is considered to be fictitious property and so Ex.B-3 document though it could be taken into the right of Vallinayagam to the extent of 1/3 share only, that too has not been conveyed in favour of the 2nd defendant and that is why Vallinayagam along with his two brothers executed sale deeds Ex.A1 and A2 in favour of plaintiffs and so the plaintiffs have got title over the suit http://www.judis.nic.in 18 property. Though the trial and first appellate court found Ex.B-1 power of attorney is not valid and Ex.B-2 and B-3 also not valid on a different ground. I find that Ex. B-1 is valid only to the extent of 1/3 share in the suit property and that too has not been legally conveyed to the 2 nd defendant and so the execution of sale deeds Ex.A1 and A2 by Murugan, Esaiki Muthu and Vallinayagam are the valid documents and the plaintiffs have got title over the suit property and the suit property is the vacant site and so the dictum that title follows possession will come into play and thus it is held that the possession is also with the plaintiffs. As far as Ex.B-4 mortgage deed is concerned, when title is passed in favour of the 2nd defendant, Ex.B-4 will not give any title to the 2nd defendant. Whatever be the transactions under Ex.B-4, will not prove the title of the 2nd defendant.
18. In the light of the above said discussion and considering all the materials available on record, the substantial questions of law raised by the appellants/defendants have already been answered by the courts below and the findings rendered by the courts below which does not suffer from any infirmity does not warrant any interference. Thus, the substantial questions of law formulated in the Second Appeal is answered against the appellants/defendants. In view of the reasons stated above, the appeal cannot be entertained and the Point is answered accordingly. http://www.judis.nic.in 19
19. In the result, the Second Appeal is dismissed. The Judgment and decree passed in A.S.No.60 of 2009 dated 17.12.2009 on the file of Additional Subordinate Court, Tirunelveli, is confirmed. No costs.
27.09.2018 Index:Yes/No nvsri To
1.The Additional Subordinate Judge, Tirunelveli
2.The 1st Additional District Munsif Court, Tirunelveli. http://www.judis.nic.in 20 S.BASKARAN, J.
nvsri/vs Judgment in S. A.(MD) No.568 of 2010 27.09.2018 http://www.judis.nic.in