Madras High Court
C.Sekar vs Ragini on 15 February, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.02.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.127 of 2009 1.C.Sekar 2.Rajammal ... Appellants vs. Ragini ... Respondent This second appeal is filed against the judgement and decree dated 27.10.2004 passed by the learned Additional Subordinate Judge, Chingleput in A.S.No.10 of 2004 in reversing the judgment and decree dated 22.12.2003 passed by the learned District Munsif, Chingleput in O.S.No.440 of 1995. For Appellants : Mr.S.Arunachalam For Respondent : Mr.V.Nicholas JUDGMENT
This second appeal is focussed by the defendants, inveighing the judgement and decree dated 27.10.2004 passed by the learned Additional Subordinate Judge, Chingleput in A.S.No.10 of 2004 in reversing the judgment and decree dated 22.12.2003 passed by the learned District Munsif, Chingleput in O.S.No.440 of 1995.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus:
a. The plaintiff filed the suit seeking the following reliefs:
- for a permanent injunction restraining the respondents, their men, agents, representatives friends and others from in any manner, interfering with the peaceful possession and in enjoyment of the suit property by the plaintiff.
- for cost of this suit.
(extracted as such) in respect of the following schedule mentioned property.
"Chengalpattu MGR District, Chengalpattu Taluk, Thirupporur firka 122, Sembakkam Village Gramanatham Survey No.269/22 (Old Survey No.194 A part) within the following boundaries.
On the North by Parthasarathy's house site;
On the East by Defendant's house site;
On the West Ranganathan, S/o Elumalai's house site;
measuring 7.2 M. East West and 12.6 M. North-South."
b. The defendants resisted the suit.
c. Whereupon issues were framed by the trial court.
d. Up went the trial, during which, the plaintiff examined herself as PW1 along with Ekammal PW2 and marked Exs.A1 to A7. On the side of the defendants, D1 examined himself as DW1 and marked Exs.B1 to B26.
e. Ultimately, the trial court dismissed the suit as against which, the appeal was filed. Whereupon the first appellate court reversed the judgment and decree of the trial court and decreed the suit as prayed for by the plaintiff.
f. Challenging and impugning the judgment and decree of the first appellate court, this second appeal has been focussed on various grounds and also suggesting the following substantial questions of law:
a. When the defendant is class I heir of the original title holders of his father and elder father, can it be presumed that he is not in possession of that property more so when the first defendant's father and elder father died intestate and his elder father had no surviving legal heir except his concubine.
b. Whether the sale deed and patta possessed (A1, A2) by the plaintiff is legally valid by way of adverse possession especially what it is not established as her right before the trial court for the property which belongs to Cheri Natham and more different survey Nos.mentioned in patta and document (A1 and A2).
c. Whether non-mentioning of the correct measurement of the suit property in the plaint and wrong mentioning of survey No.in the sale deed (A1) as S.No.194/13 instead of 194/4 can deprive the defendant of whole of the area as mentioned in the original sale deed B1 which measures 5 = cents (4275 sq.ft)?
(extracted as such)
4. After hearing both sides, I thought fit to formulate the following substantial questions of law:
1. Whether the courts below were justified in not framing an issue relating to the marital status of Ekammal, who claimed to be the wife of the deceased co-owner of the property, viz., Pandian and whether the courts below were justified in not framing an issue relating to the capacity of Ekammal as legal heir of Pandian to execute the sale deed Ex.A1 in favour of the plaintiff Ragini?
2. Whether the courts below were justified in deciding the issue without taking note of the fact that there was any partition between Pandian and Chinna Pillai relating to the property covered under Ex.B1 the sale deed dated 27.08.1970, which constituted the antecedent title to Ex.A1?
3. Whether there is any perversity and illegality in the judgment and decree of the first appellate court?
5. Both sides advanced arguments in respect of the substantial questions of law formulated supra.
6. The warp and woof of the arguments as put forth on the side of the appellants/defendants would run thus:
(i) Absolutely there was no miniscule or molecular extent of evidence to highlight and spotlight the fact that there was partition between Pandian and Chinna Pillai relating to the property covered under Ex.B1 the sale deed dated 27.08.1970, and in such a case, the courts below were not justified in assuming and presuming as though Pandian was allotted half share in that property on the western side.
(ii) In the absence of proving Ex.A7, the alleged letter executed in the presence of Panchayatars, the courts below were not justified in placing reliance on it.
(iii) Simply because the plaintiff stated Ekammal was a concubine of Pandian, it cannot be inferred or understood as though she lived continuously with Pandian and that she should be given the status of the wife of Pandian.
(iv) Her own self-serving recitals in Ex.A1 cannot be taken as sufficient proof of her marital status as the wife of Pandian.
(v) Pending litigation alone, the said Ragini started raising construction in the property and that cannot be pitted as against the legal claim of the defendants over the suit property.
Accordingly, he would pray for the dismissal of the suit.
7. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would advance his arguments, which could succinctly and precisely be set out thus:
(i) The law is zealous in safe-guarding the status of women.
(ii) A woman cannot be simply labelled or dubbed as concubine when, in fact, she happened to be the wife.
(iii) The presumption is always in favour of legitimacy and not in favour of branding a lady as a concubine.
(iv) The fact remains that Ekammal, after the death of Indrani, the first wife of Pandian, lived with him. No doubt, the couple did not give birth to any child and that it does not mean that there was no legitimate relationship between them.
(v) Ex.A7, the letter executed before the Panchayatars bespeaks and connotes that during the life time of D2, the said Pandian pulling no punches, candidly and categorically acknowledged Ekammal as his wife. In such a case, it is not open for D1- the son and D2-the widow of Chinna Pillai to challenge those facts.
(vi) Patta as contained in Ex.A2 was issued in favour of Ragini and at that time, the defendants did not object.
(vii) Ex.B2, the mortgage deed, which was relied on by the defendants was not proved.
(viii) The very mortgage deed itself would portray and project that it is nothing but a cooked up one, purely for the purpose of laying unjustified claim over the suit property.
(ix) The first appellate court taking into account the pro et contra, correctly decided the lis warranting no interference in second appeal and there is no substantial question of law involved in this matter.
Accordingly, he would pray for the dismissal of the second appeal.
8. I would like to re-collect and call-up the following maxims:
(i) affirmantis est probare He who affirms must prove.
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
Accordingly, if viewed, the burden of proof is on the plaintiff, who is the purchaser of the suit property, which forms almost the western part of the property covered under Ex.B1 the sale deed dated 27.08.1970 which would evince and evidence that Pandian and Chinna Pillar purchased near about an extent of 10 cents of land.
9. The learned counsel for the defendants would raise a pertinent point to the effect that absolutely there is nothing to evince and evidence, convey and portray, demonstrate and display that there was any partition or atleast an oral partition between those two brothers, viz., Chinna Pillai and Pandian. In such a case, the courts below were not justified in assuming as though there was oral partition and in that the western portion was allotted to Pandian.
10. In this context, my mind is reminiscent and redolent of the maxim in re dubia magis infitiatio quam affirmatio intelligenda In a doubtful matter, the negation is to be understood rather than the affirmation. The party who adduces better evidence would have better claim.
11. Wherefore, I could see considerable force in his submission. There should be evidence available on the side of the plaintiff to indicate and exemplify that there was partition at least orally in dividing the property covered under Ex.B2 into two moities; but absolutely, there is no jot or pint of evidence in this regard.
12. No doubt, the learned counsel for the plaintiff would vehemently argue by accusing the defendants that they deliberately brought about Ex.B2 just to project and portray as though there was some mortgage etc over the suit property.
13. I would like to observe that onus probandi or burden of proof is ambulatory. Initial burden is always on the plaintiff in matters of this nature. The plaintiff without discharging her burden, cannot call upon the defendants to prove their case. The defendants did not make any counter claim. In such a case, by picking holes in the case of the defendants, the plaintiff cannot try to achieve success in the litigative process.
14. At this juncture, I would like to recollect the maxim - Favorabiliores rei potius quam actores habentur Defendants are held to be in a more favourable position than pursuers.
Accordingly, if viewed, it is the plaintiff who should prove her case and she cannot call upon the defendants to prove their case.
15. Simply because, the said Ekammal was described as the concubine of Pandian, it cannot be taken that the defendnats impliedly accepted the long co-habitation between Pandian and Ekammal. These are all matters to be proved and nothing could be presumed, unless the law enables the court to presume as per Section 3 of the Indian Evidence Act. Ex.A7 was challenged at the time of marking, whereupon, the plaintiff should have taken steps to prove it in the way known to law.
16. I would like to cite the decision of the Hon'ble Apex Court reported in (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ].
"10. .....................An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
17. It is not as though Ex.A7 was challenged by a stranger to Pandian. Indubitably and indisputably, admittedly and incontrovertibly, the relationship of the defendants with that of Pandian, is an admitted one. If Ekammal is not the wife of Pandian, then D1-Sekar would be the legal heir of Pandian. Inasmuch as such a person challenges the genuineness of Ex.A7, which is more or less in the form of a Will, certainly the propounder of the Will, in this case, viz., the plaintiff is enjoined to adduce evidence adhering to Sections 68 or 69 of the Indian Evidence Act, as the case may be. But no steps were taken in that regard. No document also has been produced on the side of the plaintiff to establish and prove that Ekammal and Pandian lived together. Ration card, voters card etc to buttress and fortify the argument of the learned counsel for the plaintiff that there was long co-habitation, which would lead to the presumption that there was legitimate marital relationship between Pandian and Ekammal were not produced.
18. If according to the learned counsel for the plaintiff, there is any clinching evidence to show that Ekammal is the wife of Pandian, then the question of placing reliance on Ex.A7 may not at all be necessary; but it appears that the plaintiff relied upon Ex.A7 as an evidence to prove the marital relationship of Ekammal with Pandian and in that context alone, this court has to make its observation supra.
19. Scarcely, could it be stated that the issues were framed, properly in this case. Without having the best evidence before the court, the first appellate court simply holus bolus accepted the case of the plaintiff for gospel truth warranting interference in second appeal. Accordingly, I would like to set aside the judgment and decree of the first appellate court and remit the matter back to the first appellate court, which happens to be the last court of fact to frame the additional issues as contemplated in the substantial question of law and entertain evidence both oral and documentary from both sides and after hearing both sides, the first appellate court is enjoined to render a reasoned judgment untrammelled and uninfluenced by any of the observations made by this court in this second appeal. The first appellate court shall do well to see that the matter is disposed of within a period of six months from the date of receipt of a copy of this order.
20. On balance, the substantial questions of law are answered to the following effect:
1. The substantial question of law No.1 is decided to the effect that the courts below were not justified in not framing an issue relating to the marital status of Ekammal, who claimed to be the wife of the deceased co-owner of the property, viz., Pandian and were not justified in not framing an issue relating to the capacity of Ekammal as legal heir of Pandian to execute the sale deed Ex.A1 in favour of the plaintiff Ragini.
2. The substantial question of law No.2 is decided to the effect that the courts below were not justified in deciding the issue without taking note of the fact that there was any partition between Pandian and Chinna Pillai relating to the property covered under Ex.B1 the sale deed dated 27.08.1970, which constituted the antecedent title to Ex.A1.
21. Accordingly, this second appeal is disposed of. No costs.
vj2 15.02.2013
Note: Issue order copy on or before 01.03.2013
Index: Yes/No
Internet: yes/No
To
1. The Additional Subordinate Judge, Chingleput
2. The District Munsif, Chingleput
G.RAJASURIA,J.
vj2
S.A.No.127 of 2009
15.02.2013