Madras High Court
Sakkamma vs Jayalakshmi on 25 January, 2021
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
S.A.No.142 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
S.A.No.142 of 2017
1.Sakkamma
2.Kumar
3.Radha
4.Ravi
5.Vijaya
6.Prabhu
7.Sekar .... Appellants
Vs
1.Jayalakshmi
2.Savitha
3.Kavitha
... Respondents
Second Appeal filed under Section 100 of C.P.C. against the
judgment and decree dated 07.01.2016 in A.S.No.11 of 2014 on the file
of Sub Court, Udhagamandalam, confirming the judgment and decree
dated 03.02.2014 in O.S.No.231/2007 before the District Munsif Court,
Udhagamandalam.
For Appellants : Mr.Kingston Jerold
For Respondents : Ms.R.Anitha
1/14
https://www.mhc.tn.gov.in/judis/
S.A.No.142 of 2017
JUDGMENT
Challenging the judgment and decree passed by the Subordinate Judge, Nilgiris at Udhagamandalam in A.S.No.11 of 2014 dated 07.01.2016 confirming the judgment and decree passed by District Munsif, Udhagamandalam dated 03.02.2014 in O.S.No.231 of 2007, the defendants have filed the present Second Appeal, suggesting the following substantial questions of law:-
a) Whether the Judgment and Decree of the Courts below are vitiated by its failure to apply the presumptions that when the whereabouts of Devarajan, son of first appellant are not known continuously for a period of seven years, Devarajan legally presumed to be dead?
b) Whether Decree for Partition could be granted on mere surmises and assumptions especially when the respondents are strangers to the family?
c) Whether the oral evidence of the respondents could be relied for granting decree 2/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 for partition in respect of properties left behind by Late L.Raman, the husband of the first appellant and father of the other appellants.
2. Learned counsel for the appellants/defendants submitted that they are not related to the respondents/plaintiffs and they are all strangers to the appellants and the first plaintiff is the wife of deceased Devarajan and the other plaintiffs are the legal representatives of deceased Devarajan, According to the appellants/defendants, the said Devarajan left the house at the age of 12 and his whereabouts were not known and therefore, he is presumed to be dead.
3. Learned counsel for the appellants further submitted that P.W.1 in her evidence has not at all deposed with regard to the original village of Devarjan i.e., Finger Post, Udhagamandalam and the marriage of the first respondent/first plaintiff with Devarajan has not been proved and the person “Devarajan”, referred by the first plaintiff is entirely a different person. Learned counsel further submitted that though the appellants have elaborately made submissions on this aspect, it was not considered by both the Courts below in a proper perspective and due to reason of failure to consider both oral and documentary evidence in a proper 3/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 perspective, the judgment of both the Courts below are vitiated and they are liable to be rejected on per se and therefore, the appellants pray for allowing the appeal.
4. This Court, at this juncture, feels that it would be appropriate to extract the findings of the trial court:-
“ 9. Having heard both sides along with the materials on record, admittedly, there is no dispute on the fact that an extent of 7.32 acres of land with house in R.S.No.4808 of Ootacamund town was purchased by the sons of M. Lingae Gownder viz., 1.L.Puttusamy,
2.L.Sivalingam, 3.L.Byriah Gownder,
4.L.Raman and 5.L.Kempiah, by virtue of Sale deed dated 15.2.1968. When it is the case of the plaintiffs that as per oral partition on 15.2.1972 and by an affidavit of declaration dated 25.3.1994 executed by the sons of M.K. Lingae Gownder and legal heirs of one of the sons of M.Lingae Gownder, viz., L.Kempiah since deceased, L.Raman was allotted an extent of 1.56 acres of land in S.No.4808 of Ootacamund and one of the house in D.No.17 4/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 was also allotted to the said L.Raman, the said fact has not been denied by the defendants.
The defendants while admitting the above facts, contended that the plaintiffs are strangers to them as well as to the suit property and it is only the defendants are in exclusive possession of the property.
While so, before going into the issue as to whether the plaintiffs are entitled to share in the suit property, when the claim of the plaintiffs is only on the strength that they are the legal heirs of late Devaraj, alleging that the said Devaraj is one of the sons of late Raman. In this regard, when it is the case of the plaintiffs that the first plaintiff' is the wife and the other plaintiffs are children of late Devaraj, by denying the said fact, it is the specific case of the defendants, they are not aware of the plaintiffs and they never seen the plaintiffs. Though the defendants contended so, it is their stand that the first defendant had a son who was called at home as “Dev” and in school records, his name has been given as Devarajan and when he was a boy of about 12 years of age, in the year 1975 had run away 5/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 from the house and thereafter his whereabouts were not known to anyone, the first defendant as well as her husband late L.Raman and the defendants 2 to 7 all had taken him as dead from 1982 onwards, which is not acceptable by this Court, if really the first defendant's son viz., Dev alias Devaraj was ran away from the house in the year 1975. No documentary evidence was produced by them viz., any complaint and thereafter, only they had taken him as dead from 1982. Merely by contending that his son Devaraj was ran away when he was a boy of about 12 years, which fact has not been proved by them, this court is of the view that their own version itself enough to this Court's conclusion that the defendants themselves admitted that the late Devaraj who is the husband of first plaintiff and father of other plaintiffs is the son of L.Raman and first defendant and brother of other defendants.
10.In this regard, the plaintiffs, in order to prove that they are the legal heirs of late.Devaraj, who is one of the sons of late.L.Raman and first defendant, apart from the evidence of first plaintiff, who was 6/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 examined as PW1, they have chosen to examine as many as 5 witnesses as PW2 to PW6, PW1 in his evidence deposed that she got married with the first defendant's son late Devaraj in the year 1988 and thereafter they went to defendants house for all celebrations and for the death ceremony of late L.Raman. Further deposed that the plaintiffs were went to the marriage of 4th defendant. P.W.1 in her evidence has also marked Ex.A.17 photograph to show that in the marriage of second plaintiff, the first defendant and wife of fourth defendant and third defendant were participated. The said vital portion of evidence, enabling this Court to come to a right conclusion with regard to the relationship in between the parties herein is extracted hereunder for better appreciation.
“ th.rh.M.17y; 4tJ g[ifg;glj;jpy; ahUila jpUkzj;jpd; bghGJ vLj;jJ vd;W nfl;lhy; vd; kfs; rtpj;jhtpd; jpUkzj;jpd; bghGJ vLf;fg;gl;lJ. Mjpy; ahh; ahh; ,Uf;fpwhh;fs; vd;W nfl;lhy; vd;Dila mj;ij 4tJ gpujpthjpapd; kditp nej;uh vd; fzthpd; mf;fh uhjh Mfpnahh;f;s ,Uf;fpwhh;fs; kw;Wk; mtUila kfs;fs; Mfpnahh;fs; ,Uf;fpwhh;fs;. nkYk; vd; fzthpd; j';if tp$aht[k; mjpy; ,Uf;fpwhh;/ me;j g[ifg;glj;jpy; vd; kfis jhiu 7/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 thh;j;J bfhLg;gJ vd; mj;ij kw;Wk; vd; fzthpd; rnfhjuh; kw;Wk; mtUila FLk;gj;ij rhh;e;jth;fs; Mthh;fs;. me;j g[ifg;glj;jpy; ehd; mj;ij vd;W Fwpg;gpl;lJ vd; khkpahh; rhf;fk;khitj;jhd;” .
P.W.2 who is the cousin brother of late.Devaraj has categorically deposed that the plaintiffs are the wife and children, respectively of late.Devaraj, who is one of the sons of late.L.Raman and first defendant. P.W.2 while admitting that the said Devaraj ran away from the home when he was aged about 13 years, he deposed that the said Devaraj was returned to home after some time, Further he also deposed about the marriage of the first plaintiff that he came to know about the marriage of late.Devaraj with first plaintiff through the father of late.
Devaraj.P.W.3,P.W.4,P.W.5, who are the brothers of late L.Raman and P.W.6 who is the sister of the first defendant have categorically deposed that late.Devaraj is the son of late.L.Raman and first defendant and who is the brother of other defendants and that the first plaintiff is the wife and other plaintiffs are children of late.Devaraj. It is pertinent to note that P.W.6 who is the own sister of first 8/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 defendant she herself deposed that plaintiffs are the legal heirs of late Devaraj, who is the son of the first defendant and in order to prove the said fact through P.W.6, the plaintiffs have also taken steps to telecast the video cassette, showing the marriage of second plaintiff before this Court, which was marked as Ex.A.17. By pointing out the photographs in Ex.A.17, P.W.6 has deposed as follows and the said evidence is the vital evidence, so as to decide the relationship of parties herein.
“ th.rh.M.17y; cs;s Kjy; g[ifg;glj;jpy; ,lk; bgw;wth;fs; ahh; ahh; vd;why; b$ayl;Rkp/ ftpjh/ kw;Wk; njtuh$; Mthh;fs;. me;j g[ifg;glj;jpy; njtuh$; vd;W TWk; egh;jhd; rhf;fk;kh kw;Wk; uhika;ah kfdh vd;why; Mk;. ftpjhtpd; jpUkzj;jpy; ehd; brd;wpUe;njdh vd;why; brd;wpUe;njd;. ,e;j jpUkzj;jpy; rhf;fk;kh cs;spl;nlhh; te;jpUe;jhh;fsh vd;why; rhf;fk;kh/ uhjh/ nrfh;/ tp$ah kw;Wk; uhjhtpd; 2 gps;isfs; te;jpUe;jhh;fs;”.
11. While being son of the side of the defendants, the second defendant was examined as D.W.1, who deposed that he was not aware as to whether there was any complaint or paper publication given by the defendants to search his brother Devaraj and 9/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 also deposed that they themselves taken him as dead person without getting any legal relief of declaration. Further it is to be noted that the first defendant and his sisters are in the photograph Ex.A.17. Though DW1 in his evidence denied the photographs produced by the plaintiff, which are the vital documentary evidence strengthen the relationship in between the parties herein, in order to disprove the above oral and documentary evidence of the plaintiff, no evidence, either by oral or documentary produced by the defendants before this Court and it is pertinent to note that if really the defendants are having valid defence to disprove the clam of the plaintiff, the first defendant, can very well subject herself to give evidence instead of his son. While so, the evidence of D.W.1 itself not supported the stand taken by the defendants. Under these circumstances, this Court comes to the conclusion that the plaintiffs are the legal heirs of late.Devaraj, who is the one of the sons of late L.Raman and first defendant and brother of the other defendants.
10/14https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017
5. A perusal of the above would show that the trial court, after scanning all the documents and evidences had come to the conclusion that both the plaintiffs are the legal representatives of late Devarajan and thereby, they are entitled for share in the suit property.
6.Aggrieved by the finding of the trial court, the defendant preferred an appeal in A.S.No.11 of 2014 and the first appellate Court has confirmed the judgment of the trial court on the same line holding that the plaintiffs are the legal representatives of late Devarajan and they are entitled for share in the suit property. Both the trial Court and the first appellate Court had come to the conclusion that the plaintiffs have proved their case both by oral and documentary evidence and the appellants/defendants have not proved their case.
7. Though the appellants herein contended that the said Devarajan left at the age of twelve (12) years and thereafter, his whereabouts were not known, the appellants had treated him as Dead, the findings of the trial Court was that no documentary evidence was produced viz., any police complaint.
11/14https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017
8. In order to prove the case of the plaintiffs, the first plaintiff was examined as P.W.1 and and had chosen to examine P.W.2 to P.W.6 and marked Exs.A.1 to A.24. On the side of the defendants/appellants 2 nd defendant was examined as D.W.1 and Ex.B.1 was marked.
9. P.W.1 in her evidence has deposed that she got married with the first defendant's son late Devaraj in the year 1988 and thereafter, they went to defendants/appellants house for all celebrations and the death ceremony of her father-in-law L.Raman. P.W.1 further deposed that the plaintiffs attended the marriage of the 4th defendant/4th appellant. P.W.1 in her evidence had marked Ex.A.17 photograph to show that in the marriage of the second plaintiff, the first defendant, the wife of the fourth defendant and the third defendant had participated. P.W.6 is none other than the sister of the first defendant, who deposed about the marriage of the first plaintiff with the first defendant's son Devaraj. Therefore, most of the relatives of the plaintiffs have deposed about the marriage between the first plaintiff and the first defendant's son Devaraj and some of the defendants attended the marriage of the second plaintiff.
12/14https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017
10. Therefore, I find that no question of law much less substantial question of law arises for consideration in this case and both the courts below have rightly rejected the case of the defendants, with which, I find no infirmity or irregularity, more particularly, in the absence of any substantial question of law arising for consideration. Accordingly, the Second Appeal does not have any merit and the same is dismissed. No costs.
25.01.2021 Index: Yes/No Internet:Yes/No Speaking order/Non-speaking order sr To:
1.The Sub Court, Uthagamandalam
2.The District Munsif, Uthagamandalam 13/14 https://www.mhc.tn.gov.in/judis/ S.A.No.142 of 2017 KRISHNAN RAMASAMY,J.
sr S.A.No.142 of 2017 25.01.2021 14/14 https://www.mhc.tn.gov.in/judis/