Madras High Court
Sathiavani vs Krishnaradjou (Deceased) on 16 October, 2012
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras
Dated 16.10.2012
Coram
The Honourable Mrs.Justice R.BANUMATHI
and
The Honourable Mr.Justice R.SUBBIAH
Appeal Suit No.877 of 2009
and M.P.Nos.2 and 3 of 2011
Sathiavani .. Appellant
..vs..
1. Krishnaradjou (deceased)
2. Govindammalle @ Susila
3. Kavitha
4. V.F.Sridharan
5. S.Vijayanand
6. S.Sivaraja Muruga
7. The Union of India,
rep.by Chief Secretary,
Government of Pondicherry,
Pondicherry,
Having Office at Chief Secretariat,
Goubert Avenue
(Beach Road), Pondicherry.
8. The Excise Department,
Government of Pondicherry,
rep.by its Secretary and Having
Office at Chief Secretariat,
Goubert Avenue,
(Beach Road), Pondicherry.
9. The Registrar of Firms & Companies,
Pondicherry,
The Statutory Authority,
Under the Indian Partnership Act &
Indian Companies Act,
Having Office at
Third Cross Street, Illango Nagar,
Pondicherry-605 011.
(Sole Appellant and R2 and R3 recorded
as LRs.of deceased R1 vide Order of
Court dt.20.09.2012 made in Appeal
Suit). .. Respondents
Appeal suit filed under section 96 of the Code of Civil Procedure, against the judgment and decree dated 08.06.2009 made in O.S.No.11 of 2007 on the file of Principal District Judge, Puducherry.
For Appellant : Mr.R.Natarajan for Mr.A.V.Arumugam
For Respondents : Mr.Rajendra Kumar for
M/s.Norton & Grant for R2 and R3
Mr.M.Arvindan for
Mr.S.Thiruvengadam for R4 to R6
Ms.N.Mala, A.G.P., (Pondicherry)
for R7 to R9
JUDGMENT
R.SUBBIAH, J., This Appeal has been preferred against the impugned judgment and decree dated 08.06.2009 passed by the Principal District Court of Puducherry, by which it has dismissed the suit (O.S.No.11 of 2007) for partition and separate possession of 1/3rd share in the suit properties.
2. Appellant is Plaintiff and Respondents 1 to 9 are Defendants 1 to 9. For easy reference, parties are hereafter referred to as per their ranking in the original suit.
3. Facts and circumstances giving rise to this Appeal are as follows:
Plaintiff filed the suit in O.S.No.649 of 1996 before the Additional Sub Court, Pondicherry for the following reliefs:
a) to pass a preliminary decree for partition and separate possession of 1/3rd share in the suit properties,
b) to direct delivery of possession of such share to the plaintiff;
c) to declare that the purported Partnership Deed dated 08.03.1996 between D1, D5 and D6 with regard to License in Item No.3 of 'B' schedule property is void, ab-initio and non-est in eye of law;
4. The parties are related as under:
Pacquirisamy (died) = Thaiyalnayagi (died without issues) = Uttirandammal (died in 1970) | |
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| | |
| | |
Amsavalli Vidhyabushani Krishnaradjou @
=Vijayarangam =Sundaram (died Kichenassamy (D1)
| without issues) =Govindhammalla @
| Susila (D2)
V.F.Sridharan (son) |
(D4) |
| |
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| | | |
| | | |
Vijay Anand Sivaraja Muruga Kavitha Sathiavany
(D5) (D6) (D3) (Plaintiff)
5. Plaintiff's grandfather one Paquirisamy Cramany originally hailed from Pottour Village of erstwhile Madras Province (present Tamil Nadu) of India. He moved over to the Town of Kottuchery in Karaikal of Pondicherry Territory. Paquirisamy Cramany was a dynamic businessman and he voyaged to Rangoon on business and on return, did good business at Pondicherry and thus, purchased valuable properties.
6. Paquirisamy married one Thaiyalnayagy. She died without issues. Thereafter, he married one Uthirandammal and they have two daughters, by name, Amsavalli and Vidhyabushani and one son Krishnaradjou alias Kichenassamy (D1). Paquirisamy purchased item No.1 of 'B' schedule property by a sale deed dated 06.07.1933. All these persons lived as one family.
7. While so, Paquirisamy died at Pondicherry in 1942, leaving his wife and children in joint possession and enjoyment of all his several properties. Since two daughters of Paquirisamy are married and only son D1 was not capable of administering all the properties, most of the properties were disposed of gradually in times of needs and necessities for the joint family. In the said situation, Uthirandammal, mother of D1 died in 1970. Amsavalli was married to one Vijayarangam and they have ten children including V.F.Sridharan, eldest son (D4). Vidhyabushani was married to one Sundaram and they had no issues. D1 married one Govindammalle @ Susila (D2) and begot two daughters Kavitha (D3) and Sathiyavany (plainitiff).
8. An oral partition was entered into all the heirs of Paquirissamy in 1974, in which, the rights of Amsavalli were all settled and discharged by funds left by her father. Since the husband of Vidhyabushani passed away and they had no issues, she was given certain funds and was permitted to reside in a portion of family dwelling house described as item No.1 of 'B' schedule. D1 and his family were allotted and given absolute title of said family dwelling house apart from jewels, movable properties, immovables, funds, etc, of his father. Thereafter, parties were leading separate family. D1 and his family were living in item No.1 of 'B' schedule dwelling unit as a joint Hindu family.
9. In pursuance of partition, D1 purchased item No.3 of 'B' Schedule property from the funds of ancestral nucleus in his hand, and set up a business in the name and style of "Vijaya Wines" in item No.2 of 'B' schedule property. Then, by deriving income emanating from the said business, item No.4 of 'B' schedule property was purchased in 1987. As such, all properties described in 'B' schedule are all belonging to joint family comprising D1 to D3 and plaintiff and thus, all said properties are equitably partible amongst them.
10. While so, D1 could not handle affairs of said business and since his eldest sister, Amsavalli's eldest son D4 is only educated person in family, D1 reposed confidence on D4 and thus, left the business with him. Having enjoyed such unjust enrichment and thus lured by income and value of properties and business of family, D4 planned to unjustly enrich himself further. It was gradually revealed that the holding of D4 are growing disproportionate to his means and that D1's family could not at all prosper even though said family businesses are doing extremely well and when it was enquired, disputes arose between the parties, which resulted an oral family arrangement as amongst them. As per the said oral family arrangement, License referred as item No.4 of 'B' schedule is given for the use of D3 and another license referred as item No.3 of 'B' schedule is given for the use of plaintiff, which were reduced into writing. While so, D1 had entered into a valid Partnership Deed dated 18.03.1996 forming a Partnership Firm under the name and style of "S.V.Wines" comprising himself and his 2nd daughter (plaintiff) and had duly caused the registration of the firm with the Registrar of Firms, Pondicherry. But, at the instigation of D4, D1 made defamatory allegations against his own daughter (plaintiff) and son-in-law. D4 had obtained signature of D1 in blank non-judicial stamp papers and such unlawful papers are being put to use in the concerned Offices & Departments, namely, D7 to D9, to stall and prevent the effects of the said family arrangements. Similarly, he prepared a partnership deed dated 06.03.1996 allegedly as between D1 and D5 and D6 and sought to register the same in order to pre-empt and defeat the interest of plaintiff and D1 to D3. Since plaintiff is entitled for her rights and interests as per the family arrangements and by way of a partition and since D1 to D6 are frivolously evading the claim of plaintiff by creating purported void documents, plaintiff filed the present suit for the reliefs stated supra.
11. Resisting the said case, D1 to D6 filed a common written statement admitting the relationship of the parties but emphatically denied that 'B' schedule property originally belonged to Pakkirisamy Gramany. Present suit has been filed by the plaintiff at the instance of her husband, who was working in Tamil Nadu Government Service as Cane Inspector and now he is doing lorry transport business by availing loan from Union Bank of India, Pondicherry Branch and D1 had offered the 'B' schedule property as security to the bank. D1's father died in 1941 while D1 was 8 years old. Hence, D1 was actually brought up by his sister Amsavalli. 'B' schedule property devolved on D1 as he is the only son, succeeded to the estate of the father as per the law prevailing at that time. D1 was compelled to sell some of the properties even in the year 1954 to discharge debt due to the Government in the course of doing business in toddy and arrack shop. D4 helped D1, his wife and daughters by obtaining loan from third parties to start a business and thereafter discharged the same. D1 is the absolute owner of 'B' schedule property as the exclusive heir of his father. It is denied that there is any joint family as stated in the plaint.
12. D1 was originally doing business in hiring and repairing cycles and subsequently with the monetary help rendered by D4, started a business in the sale of Indian Made Foreign Liquor under the name and style of "Vijaya Wines" as sole proprietor. Since D1 was getting old and has no male heir to help him in the business and D4 is the Government Servant working in Electricity Department, he wanted to run his business M/s.Vijaya Wines in the partnership with his grandchildren D5 and D6 (sons of D4) and has, in fact, prepared a Partnership Deed and presented it to the Registrar of Firms for registration. It was at that stage, plaintiff's husband forged the signature of D1 and presented a partnership deed purported to comprise D1 and the plaintiff. After coming to know this fraud, D1 immediately gave an objection letter to D9 requesting him not to register the partnership deed presented by plaintiff's husband in the name of the plaintiff as the signature found therein does not belong to D1 and he never signed.
13. M/s.Vijaya Wines is of exclusive business as a proprietor in which neither plaintiff nor any of his children have any right. It is denied that D1 wanted to start a new partnership business under the name and style of 'S.V.Wines' and that he had signed in a deed on 18.03.1996. Thus, they prayed for the dismissal of the suit.
14. D7 and D8, official defendants, filed a written statement stating that D1 is a licensee of one FL.2 Bar licence vide No.4/FL.2/95-96 in the name and style of "M/s.Vijaya Wines" and the said licence had been renewed upto 31.03.1996 and is yet to be renewed for 1996-97. In the meantime, the licensee-D1 submitted a letter on 15.03.1996 stating that his daughter-plaintiff had formed a forged partnership deed, using his name and signature without his knowledge at the wrong guidance of her husband and requested D9 not to accept any letter from the plaintiff or change in the name and style of licence and inclusion of partners. D8 the Excise Department, Government of Pondicherry, had received another letter from D1 on 19.03.1996 reiterating the same request in the letter dated 15.03.1996. Hence, D8 had not made any change in the licence and the licence still remains in the name of M/s.Vijaya Wines and D1 as the licensee.
15. D9 - The Registrar of Firms & Companies filed a written statement stating that D1, D5 and D6 have submitted Form No.1 dated 08.03.1996 to D9 for registration of Firm by name and style of "Vijaya Wines" along with xerox copy of the partnership deed dated 06.03.1996 entered into among D1, D5 and D6. When the matter was pending before D9, plaintiff and D1 submitted Form No.1 dated 11.03.1996 to D9 for registration of the firm by name and style of "Sathiavany Wines" on the strength of the copy of the Partnership Deed dated 11.03.1996 entered into between plaintiff and D1. Subsequently, plaintiff had filed objections vide letter dated 11.03.1996 for registration of the firm "Vijaya Wines". D1 had also submitted his objections by letter dated 12.03.1996 for the registration of Firm 'Sathiavany Wines' stating that his signatures in Form No.1 and also in the partnership deed were forged. Therefore, D9 has neither registered the firm 'Vijaya Wines' nor 'Sathiayavani Wines' and no certificate of registration was issued.
16. On the said pleadings, the Additional Sub Court has framed the following issues:
1)Whether the suit has been properly valued and correct court fee has been paid ?
2)Whether the plaintiff was one among the legal heirs of deceased Paquirisamy Cramany as on the date of his death? or Whether the 1st defendant was the only legal heir of the deceased Paquirisamy ?
3) Whether Uthirandammal, the 2nd wife of deceased Paquirisamy was administering the properties left behind by Paquirisamy ? How the suit properties emerged and who acquired them ?
4)Whether the plaintiff and 1st defendant entered into the Partnership Deed dated 18.03.1996 in respect of the business i.e. 3rd item of the suit properties or is it a fabricated one taking undue advantage of the confidence reposed on the plaintiff and her husband ?
5)Whether the Partnership Deed entered into between the 1st defendant on the one side and defendants No.5 & 6 on the other side is invalid in respect of business referred to in the item No.3 of 'B' schedule properties ?
6)Whether the licence in connection with the business referred to in item No.4 of 'B' schedule of the plaint was given to the 3rd defendant ?
7)Whether there was any family arrangement among the plaintiff and the defendants No.1 to 3 in respect of the suit properties ?
8)Under which law the plaintiff claims right over the properties and whether the plaintiff is entitled to 1/3rd share in the suit properties ?
9)Whether the plaintiff is entitled for partition and separate possession and for other relief regarding partnership as prayed in the suit ?
17. In order to prove her claim, the husband of plaintiff was examined as P.W.1 and 10 documents were marked as Exs.A-1 to A-10. D1 was examined on the side of defendants as D.W.1 and a certified copy of sale deed dated 18.03.1975 executed by one Rajaram in favour of D2 was marked as Ex.B-1. After examination of D.W.1 was over, plaintiff has filed I.A.No.2150 of 2004 for amendment stating that during pendency of the suit, plaintiff was informed that D4 had caused a purported sale deed No.796 of 1996 between himself and D2 in respect of item No.2 of 'B' schedule property; the said purported sale deed does not possess any independent transferable title or interest in the property and thus, the plaint has to be amended by adding the following prayer:
"To declare that the purported sale deed dated 29.03.1996 executed by D2 to D4, registered as Doc.No.796 of 1996 at S.R.O., Villianur is void, ab-initio and non-est in eye of law.
18. The said amendment petition was allowed by order dated 23.08.2006. While so, the suit was transferred to the Court of Principal District Judge, Pondicherry on account of the amendment to the Civil Courts Act, enabling the District Courts to try suits with pecuniary jurisdiction exceeding Rs.5,00,000/- and the suit was re-numbered as O.S.No.11 of 2007. Before the Principal District Court, D4 to D6 engaged the same counsel, who appeared for them before the Additional Sub Court, Pondicherry; but D1 to D3 engaged different counsels.
19. Before the Principal District Court, D4 to D6 filed additional written statement on 12.10.2007 stating that the property covered by 29.03.1996 (item No.2 of 'B' schedule) was purchased by D4 in favour of D2, wife of D1, for Rs.700/-. In fact, the sale consideration was provided by D4, which is disclosed in the registration endorsement before the Sub-Registrar. Subsequently, D4 constructed a building in that property for running the bar and helped D1 and D2 financially to run the business since D1 and D2 who were aged and were otherwise suffering blood pressure. Then, D2 had decided to sell the property to D4, who, in turn, purchased the same covered by Ex.B-1 dated 18.03.1975 for a valid consideration. Plaintiff has absolutely no semblance of legal right to claim any share in the said property as her paternal grandfather died in 1940 and the rights of the parties are covered by Coromandal Hindu Law and in any event both the sister and grand daughter have no right by birth to the property left by her paternal grandfather. Thus, in the additional written statement filed by D4 to D6, a new plea was introduced with regard to item 2 of 'B' schedule as if D4 had purchased the property i.e. item 2 of 'B' schedule in the name of D2 on 18.03.1975. Later, by a sale deed dated 29.03.1996, D4 had purchased the same from D2.
20. The Principal District Court has framed the following additional issues for consideration, apart from 9 issues already framed by the Additional Sub Court.
1) Whether the suit is bad for non-joinder of necessary party, viz., Amsavalli, the daughter of Paquirisamy ?
2) Whether the relief of partition is maintainable in this case ?
21. On the side of plaintiff, P.W.1 was further examined and Exs.A-1 to A-16 were marked and on the side of defendants, one document dated 13.09.2004 - certified copy of sale deed dated 18.03.1975 executed by one Rajaram in favour of D2 was marked as Ex.B-1. Trial court, upon consideration of entire evidence both oral and documentary, has dismissed the suit on the following findings:-
i.Law of succession applicable to Pacquirsamy (grandfather of plaintiff and D3) is only Hindu Succession Act, subject to other allied laws applicable to his estate relevant to the date of his death. At the time of death of Pacquirsamy, the relevant law which was in force is the Hindu Women's Right to Property Act, 1937. At that time, the daughters were not heirs to succeed the estate of the deceased; hence, the widow of Pacquirisamy is entitled for half share and his son (D1) is entitled for another half share. But the limited estate of second wife of Pacquirsamy got enlarged under section 14(1) of the Hindu Succession Act 1956 and the said Uthirandammal expired only in the year 1970. On the death of said Uthirandammal, as per Section 15 of Indian Succession Act, her half share devolved on her son D1 and daughters Amsavalli and Vidhyabhushani. D1 is entitled for 4/6th share and D1's two daughters are entitled for each 1/6th share. Therefore, if there is any partition after the demise of Uthirandammal, the same between D1 and his two sisters. Plaintiff and D3 (daughter of D1) are not co-owners and as such, they cannot claim partition. Hence, case of plaintiff that there was a partition between all rthe parties in the year 1974 is not legally sustainable;
ii.The evidence of P.W.1 - husband of plaintiff with regard to family arrangement took place in the year 1974 cannot be looked into. P.W.1 has no personal knowledge about the same. Since his marriage with the plaintiff took place only in the year 1990, his evidence is only a hearsay evidence. Plaintiff, who had knowledge about the family arrangement has not come forward to adduce evidence. Hence, an adverse inference has to be drawn as per section 114 of Evidence Act;
iii.Contention of plaintiff that second item of 'B' schedule property was purchased in the name of D2 by utilising the funds of joint family cannot be accepted and as such, it has to be held that second item of the property is the exclusive property of D2, in which the members of the family can claim no right. Case of D4 that property was sold by D2 in his favour has been established by evidence in this case.
iv.Suit is bad for non-joinder of parties since D1's sister Amsavalli was not added as a party ?
Aggrieved over the same, the present appeal is filed by plaintiff.
22. It is the main submission of plaintiff that before the trial court, it was the specific case of the plaintiff that originally there was a partition in the year 1974. In the said partition, the rights of one of the sisters, viz., Amsavalli were settled and discharged by funds left by Pakkirisamy and Uthirandammal. In respect of other sister Vidhyabushani, since her husband passed away and she has no issues, she was given certain funds and liberty to reside until permitted by D1 in a portion of family dwelling house. Thereafter, in the year 1996, there was an oral family arrangement, by which, licence referred to item 4 of 'B' schedule was given to D3 and licence referred to item 3 of 'B' schedule was given to the plaintiff. In order to speak about the family arrangement, husband of plaintiff was examined as P.W.1 in support of the case of the plaintiff. D4, who is the nephew of D1 and claiming right over the 'B' schedule, has not chosen to examine himself as a witness before the trial court. Under such circumstances, when there is no contra evidence, the trial court ought to have accepted the case of the plaintiff. Though originally D1 to D6 filed a common written statement, in the said written statement it was categorically admitted by all the defendants that 'B' schedule property belongs to D1. After amendment of the plaint filed by plaintiff to set aside the sale deed dated 29.03.1996 said to have been executed by D2 in favour of D4, D4 to D6 have segregated themselves from other defendants i.e. D1 to D3, have filed separate written statement saying that item 2 of 'B' schedule property was sold by D2 in favor of D4. Since D4 to D6 had taken a totally different stand, D1 and D2 have also filed additional written statement on 01.06.2009 along with an application in I.A.No.226 of 2009 for reception of the additional written statement denying the case projected by the D4 in the additional written statement. But the said application was dismissed by the trial court. Since additional written statement of D1 to D3 was not accepted, D1 and D2 were not in a position to putforth their case as against D4. Further learned counsel for plaintiff submitted that the trial court, without making proper discussion with regard to the evidence adduced on the side of the plaintiff in respect of the family arrangement, on evasive reasons, had rejected the case of the plaintiff. That apart, the trial court at the time of disposing the suit has framed additional issue namely, whether the suit is bad for misjoinder of necessary parties viz., Amsavalli and answered the same against the plaintiff. In this regard, it is the submission of the plaintiff that non-joinder of necessary parties is not a defence taken out by none of the defendants. Under such circumstances additional issues framed by the District Court at the time of disposing the suit, without giving an opportunity to the plaintiff to adduce evidence on that issues, are not legally sustainable. On that ground itself, the impugned judgment and decree are liable to be set aside and consequently, the matter has to be remanded to the trial court with a direction to accept the additional written statement of D1 and D2 and permit them to adduce evidence and decide the case afresh. In support of his contention with regard to remand, learned counsel has relied upon the judgments reported in Venkatasubramaniya Chettiar (died) .vs. Perumal Chettiar (2012(3) CTC 160) and Y.Nagaraj .vs. Jalajakshi and others ((2012) 2 SCC 161).
23. That apart, it is the further submission of learned counsel for plaintiff that the trial court has discarded the evidence of P.W.1 stating that the evidence of P.W.1 is a hearsay evidence. But PW.1 is none other than the husband of the plaintiff. Plaintiff married P.W.1 in the year 1990 and the suit was filed in the year 1996. P.W.1 adduced evidence on the strength of power of attorney given by plaintiff and as such, the finding of the trial court that the evidence of P.W.1 is a hearsay evidence is not legally sustainable. In support of this contention, learned counsel has relied on the decision reported in the case of Kailash Devi .vs. Matadeen Agrawal (AIR 2001 Rajasthan 306) and submitted that evidence of Power of Attorney holder cannot be refused to take into consideration on the ground of non-appearance of the plaintiff. In support of the same submission, learned counsel has also relied upon the decision reported in K.Saroja .vs. Valliammal Ammal (1997 A I H C 1959), wherein it has been held that husband being competent witness for wife in civil proceedings, non-examination of wife would of no consequence.
24. It is yet another submission of the learned counsel for plaintiff that the trial court had rendered a finding that plaintiff is not entitled for partition by applying the repealed law, viz., Hindu Women's Right to Property Act. Thus, on misrepresentation of facts, the trial court dismissed the suit for partition. In support of his contention that amendment of written statement could be done at any stage if it is necessary for the purpose of determination of real question in controversy between the parties at any stage of the proceedings, learned counsel has also relied upon the decisions reported in Pradeep Singhvi and another .vs. Heero Dhankani and others ((2004) 13 SCC 432), Kailash .vs. Nanhku and others ((2005) 4 SCC 480) and Man Kaur .vs. Hartar Singh Sangha ((2010) 10 SCC 512). Thus, he prayed for order of remand.
25. On the contrary, learned counsel for D4 to D6 advanced his arguments, supporting the finding rendered by the trial court. It is the specific contention of learned counsel for D4 to D6 that D2 and D3 had chosen to file additional written statement in the trial court only after the trial court had reserved the judgment on completion of trial. Under such circumstances, no infirmity could be found in dismissing the application. It is the further submission that Power of Attorney holder cannot depose for principal in respect of matter of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross examined. In support of his contention, learned counsel has relied on the decision reported in Janki Vashdeo Bhojwani and another .vs. IndusindBank Ltd., (2005(3) ctc 128) and submitted that in the instant case, marriage between plaintiff and P.W.1 took place in the year 1990. P.W.1 has no personal knowledge about the alleged partition that took place in the year 1974. Under such circumstances, finding arrived at by the trial court that P.W.1 is not a competent witness to speak about the partition that took place in the year 1974 does not suffer from any infirmity. Thus, he prayed for the confirmation of the finding rendered by the trial court.
26. It is the further submission of learned counsel for D4 to D6 that even if the business is standing in the name of any member of the joint family and if that member is the manager of the joint family, unless it could be shown that the business in the hands of the co-parcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Business carried on by D1 in the property cannot be treated as joint family business and the said property remained separate property of D1. Therefore the question of claiming partition does not arise in this case. Learned counsel has relied on the decisions reported in G.Narayana Raju .vs. G.Chamaraju (AIR 1968 SC 1276), Heeralal .vs. Kalyan Mal and others ((1998) 1 SCC 278) and P.S.Sairam .vs. P.S.Rama Rao Pissey ((2004) 11 SCC 320).
27. This Court has given anxious consideration on the submissions made by the learned counsel on either side and perused the materials available on record.
28. There is no dispute about the relationship of the parties. Trial Court has dismissed the suit on the following grounds;
(1) Pacquirisamy Cramany, grandfather of plaintiff died in the year 1941 and at that time, the law of Hindu Women's Right to Property Act was in force. Thus, applying the provisions of the said Act, Trial Court has held that plaintiff and defendants 1 to 6 cannot be construed as co-owners or co-sharers to the properties;
(2) suit is bad for non-joinder of Amsavalli, one of the daughters of Pacquirsamy.
(3) The evidence of P.W.1, Prabhu, who is the husband of plaintiff is only hearsay evidence and there is no direct evidence from the plaintiff and as the plaintiff having not tendered to give evidence to prove partition, the defence broughtforth through P.W.1 cannot be accepted.
29. Bone of the submission of plaintiff is that the matter has to be remitted to the trial court for fresh trial. For which, plaintiff has projected two grounds i.e. originally written statement was jointly filed by D1 to D6 by taking uniform stand that 'B' schedule property belongs to D1.
Thereafter, D4 to D6 separately filed additional written statement to the effect that D2 sold item No.2 of 'B' schedule property to D4.
30. The relevant portion from the said original written statement dated 04.10.1996 filed before the Additional Sub Court, Pondicherry reads as follows:
"2. ..... The first defendant is the absolute owner of 'B' schedule property as the exclusive heir of his father....."
D1 is none other than the father of plaintiff. D2 is the wife of D1. D3 is the another daughter of D1. D4, the contesting defendant is the sister's son of D1. It appears from the records that when the case was pending before the Sub Court, evidence of P.W.1 was recorded. On behalf of D1 to D6, D1 had adduced evidence supporting the plea taken in the original written statement, in which alienation of item No.2 of 'B' schedule was not mentioned. But, after the case was transferred to the District Court, Pondichery, D4 to D6 segregated themselves from D1 to D3 and filed additional written statement, in which a new plea was introduced as if item 2 of 'B' schedule was sold to him by D2. It is to be pointed out that though D4 to D6 have filed additional written statement, D4 has not chosen to examine himself as a witness before the District Court, Pondicherry. But the trial court, based on the pleading in the additional written statement, had rendered a finding in favour of D4 saying that item 2 of 'B' schedule property is the absolute property of D4 since he had purchased the same from D2. It is a well settled legal principle that mere pleading is not an evidence unless it is recorded in the manner known to law. In the instant case, as found earlier, D4 has not adduced evidence. Further we find, D1 and D2 have filed additional written statement denying the case of D4 along with an application for reception of additional written statement in I.A.No.226 of 2009, but the same was dismissed for non-prosecution. Perhaps D1 would have come to know the alleged fraud played on the part of D4 in obtaining the document which necessitated him to file additional written statement thereafter. Since earlier D1 to D6 have filed single written statement and the counsel who was appearing for D1 to D6, subsequently appeared only D4 to D6, after the case was transferred to District Court, it might have taken some time for D1 to engage the other lawyer and file additional written statement.
31. In our considered opinion, when the trial court has chosen to accept the additional written statement of D4, which contains a new plea and which is totally inconsistent to the plea taken in the original written statement, it ought to have accepted the additional written statement of D1 and D2, in which they denied the very case projected by D4 in the additional written statement. But, without accepting the additional written statement of D1 and D2 and without examining D4 as a witness, trial court had rendered a finding that item 2 of 'B' schedule property belongs to D4, which is not proper and correct. In the present appeal, plaintiff has filed M.P.Nos.2 and 3 of 2011 to raise additional grounds and to produce additional documents, namely, Form-A and Form-V of "Vijaya Wines" issued by the Registrar of Firms, Partnership Deed, letters from D1 to Deputy Commissioner, Excise, etc. The only objection raised by defendants is that since these petitions were filed after dismissal of the suit, at this juncture, additional written statement cannot be accepted. But it is the reply of the plaintiff that all the rules of procedure are the handmaid of justice and for doing substantial justice, a direction could be given at this appellate stage to the trial court to accept the additional written statement filed by D1 and D2.
32. Additional written statement was filed by D1 and D2 on 01.06.2009 after the arguments were heard. Though at the fag end of the trial additional written statement was filed, the facts and circumstances of the case justified in receiving additional written statement. Original written statement was filed by D1 and D2 and D4 to D6 on 04.09.1996. In the original written statement, defence plea was taken that the entire suit properties belong to D1. On application filed by the plaintiff (I.A.No.2150 of 2004), plaint was amended to declare the sale deed dated 29.03.1996 as null and void and not binding upon the plaintiff. After the amendment, the suit was transferred to the District Court, where D4 to D6 through the same counsel filed additional written statement on 12.10.2007. In the additional written statement so filed by D4 in respect of suit property item No.2, plea of benami was taken that D4 is the real owner of the suit property item No.2. In the additional written statement, D4 had also taken the stand that D1 and D2 were aged and therefore, they wanted to sell the suit property item No.2 to D4 and thus, D4 had taken the inconsistent plea.
33. As pointed out earlier, D1 and D2 have engaged a separate counsel. In the light of the stand taken by D4 in the additional written statement, D1 and D2 have filed additional written statement raising the plea that the sale deed dated 29.03.1996 was obtained from them by fraud and that they were defrauded. In the light of the inconsistent stand taken by D4 and since D1 and D2 have engaged a separate counsel, this Court is justified in receiving the additional written statement even though it was filed at the fag end of the trial. Trial Court has not kept in view the shift in the stand of D4 in the additional written statement. In the interest of justice and procedural prescriptions, we are of the view that to meet the ends of justice the additional written statement is ordered to be received and opportunity has to be given to the parties to adduce further oral and documentary evidence by remitting the matter. We are conscious that order of remand is not a matter of course and that it should be exercised sparingly. In this regard, we may usefully refer to the decision relied upon by the plaintiff reported in the case of Kailash .vs. Nanhku and others ((2005)4 SCC 480) and the relevant paragraphs in the said judgment are extracted hereunder:
"27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive.
29. In State of Punjab v. Shamlal Murari ((1976) 1 SCC 719) the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India (1984) 3 SCC 46) the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.
30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words shall not be later than ninety days but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form".
The principles enunciated in the said judgment are squarely applicable to the facts of the case on hand. When the trial court has chosen to accept the additional written statement of D4, it ought to have accepted the additional written statement of D1 and D2 also and ought to have given opportunity to D1 and D2 to adduce further evidence both oral and documentary. By dismissing I.A.No.226 of 2009 and refusing to receive additional written statement, D1 and D2 were put to irreparable hardship. Therefore, we are of the opinion, procedural law should not stand in its way to do substantial justice. Hence, in the interest of justice and to render substantial justice between the parties, the additional written statement filed by D1 and D2 is to be received and the matter has to be remanded to the trial court.
34. Further, after the matter was posted for judgment, trial court itself framed an additional issue "Whether the suit is bad for non-joinder of necessary parties, viz., Amsavalli, daughter of Pacquirisamy" and held that the suit is bad for non-impleading of Amsavalli. It is pertinent to state that none of the defendants had raised the defence with regard to the plea of non-joinder of necessary party. When the trial court has chosen to frame additional issue at the time of disposing the suit with regard to the plea of non-joinder of necessary party, it ought to have given an opportunity to adduce evidence in respect of the said additional issue, but it has failed to do so. Therefore, in the interest of justice, the finding rendered by the trial court it to be set aside and the matter is to be remitted back to the trial court. Since we are inclined to remand the matter, we are not dealing with the other submissions made by the learned counsel for plaintiff.
35. It is the further contention of the D4 to D6 that additional evidence cannot be received in the appeal at this length of time. In this regard, it would be appropriate to place reliance on the judgment reported in NORTH EASTERN RAILWAY ADMINISTRATION ..vs.. BHAGWAN DAS ((2008) 8 SCC 511), wherein it has been held as follows:
"The High Court was bound to consider the application under Order 41 Rule 27 CPC before taking up the appeal on merits. The question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. The appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted, but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC".
Following the dictum laid down in the said judgment, we are of the view, the trial court may be directed to receive the additional documents subject to the admissibility of the said documents.
For the reasons stated above, the judgment and decree of the Principal District Court, Pondicherry in O.S.No.11 of 2007 is set aside and the Appeal is allowed and the matter is remitted back to the trial court with a direction to accept the additional written statement filed by D2 and to frame additional issues including the applicability of Hindu Succession Act, 1956, afford sufficient opportunity to both parties to adduce further oral and documentary evidence and proceed with the matter afresh. Considering the fact that originally Suit is of the year 1996 and D1 died and D2 is a senior citizen aged about 76 years, trial court is directed to take up the matter and dispose of the same as early as possible, preferably, not later than December, 2013. Connected M.Ps.are closed. However, there is no order as to costs.
gl Copy to:
The Principal District Judge, Pondicherry