Thanikachalam v. Karuppayee @ Valliammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 13.06.2018 PRONOUNCED ON : 27.06.2018

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.1746 of 2004

1. Thanikachalam

2. Arunachalam

3. Govindan

4. Saradambal

5. Amirthavali ...Appellant/Defendants Vs.

1. Karuppayee @ Valliammal

2. Elumalai

3. Arunachalam

...Respondents/Plaintiffs

Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 18.12.2001 passed in A.S.No.139 of 2000 on the file of the Principal District Court, Villupuram, reversing the Judgment and Decree dated 07.08.2000 passed in O.S.No.26 of 1997 on the file of the Principal District Munsif Court, Ulunthurpettai.

For Appellants : Mr.R.Vasudevan Respondents : No appearance Set exparte Vide order dated.04.06.2018

JUDGMENT

In this second appeal, challenge is made to the Judgement and Decree dated 18.12.2001 passed in A.S.No.139 of 2000 on the file of the Principal District Court, Villupuram, reversing the Judgment and Decree dated 07.08.2000 passed in O.S.No.26 of 1997 on the file of the Principal District Munsif Court, Ulunthurpettai.

2. The second appeal has been admitted on the following substantial questions of law:

" (a). Whether the plaintiffs having traced their title to the suit schedule property based on an alleged will executed by Annamalai under Ex.A1 dated 1.2.61 and

the courts below having rightly held that the will is not proved and in the absence of any other document filed by the appellants to establish their entitlement to the entire suit schedule properties, is it justified on the part of the lower appellate court to grant a decree for declaration of title to the suit schedule properties in favour of the plaintiffs?

(b). Whether the lower appellate court is right in granting a decree for declaration of title to the suit schedule properties based on kist receipts filed under Exs.A5 to A18 especially when there is no reference of suit schedule properties in those kist receipts?

(c). Whether the lower appellate court is justified in granting a decree for permanent injunction against the appellants who are all coowners with the respondents in respect of the suit schedule properties as per the joint patta issued under Ex.A4 and the lower appellate court having held that the appellants are in possession of the suit schedule properties on the date of suit?"

3. Considering the scope of controversy involved in this matter lying in a narrow compass, it is found that the facts involved in the matter need not be dwelt in extenso.

4. The parties are referred to as per their rankings in the trial Court.

5. Suffice to state that the plaintiffs had laid the suit for the reliefs of declaration and permanent injunction.

6. The plaintiffs have laid the suit mainly claiming title to the suit property based on the will dated 01.02.1961 said to have been executed by Annamalai Padaiyachi S/o. Kuppa Padaiyachi and accordingly, it is the case of the plaintiffs that the three daughters of Annamalai Padayachi derived title to the suit property and after further transactions with reference to the same as detailed in the plaint, it is the case of the plaintiffs that the suit property is in their possession and enjoyment and as the defendants had attempted to interfere with their possession and enjoyment of the suit property, they had been necessitated to lay the suit for appropriate reliefs.

7.

The defendants have disputed the claim of title of the plaintiffs in respect of the suit property as put forth in the plaint and on the other hand, according to the defendants, Kuppa Padayachi and Namachivayam are brothers and accordingly, it is their contention that the suit property and the other properties belonged to the abovesaid brothers in common and accordingly, each inherited half share and it is thus contended that Annamalai S/o Kuppa Padayachi had inherited only half share in the suit property and similarly, Arunachalam S/o Namachivayam inherited the other half share and it is further stated that accordingly, the defendants being the legal heirs of Arunachalam through his son Annamalai, similarly, it is their contention that they had been enjoying the half share in the suit property by putting up a house therein and thus, it is their case that the plaintiffs, at the most, would be entitled to claim only half share belonging to Annamalai S/o.

Kuppa Padayachi and therefore, the further sale transactions effected by the daughters of Annamalai S/o. Kuppa Padaiyachi are not legally sustainable and hence, it is stated that the reliefs sought for by the plaintiffs cannot be granted and prayed for the dismissal of the suit.

8. In support of the plaintiffs' case, it is found that PWs 1 to 4 were examined and Exs.A1 to A38 were marked. On the side of the defendants, DWs 1 & 2 were examined and Exs.B1 to B12 were marked.

9. The trial Court, on an appreciation of the materials placed on record and the submissions made, was pleased to dismiss the plaintiffs' suit. On appeal, the first appellate Court set aside the judgement and decree of the trial Court and granted the reliefs as prayed for by the plaintiffs. Challenging the same, the present second appeal has been laid.

10. The plaintiffs trace their title to the suit property by way of the will dated 01.02.1961 said to have been executed by Annamalai Padaiyachi in favour of his three daughters and the same is seriously contested by the defendants. The plaintiffs having not clearly averred in the plaint as to how Annamalai Padaiyachi had acquired title to the suit property so as to entitle him to bequeath the same in favour of his daughters by way of the will dated 01.02.1961, the copy of which has come to be marked as Ex.A1. It has not been averred by the plaintiffs that the suit property is the ancestral property of Annamalai Padaiyachi inherited by him from his ancestors as such. Be that as it may, on a perusal of Ex.A1 Will, it is found that Annamalai Padaiyachi claims that the property described therein as belonging to him absolutely. Further, as rightly determined by the trial Court, there is no valid reason projected by the plaintiffs as to what happened to the original Will dated 01.02.1961. The original Will has not been placed before the

Court for consideration and the non production of the same has also not been properly explained. That apart, the Will in question marked as Ex.A1 has not been established in the manner known to law. None associated with the Will has been examined by the plaintiffs to show its authenticity. As regards the same, there is no proper explanation offered by the plaintiffs and there is no material on the part of the plaintiffs to hold that the attestors to the Will and the scribe of the same are not available or dead. As such, it is found that the Will Ex.A1 has not been established in the manner known to law. The witnesses examined on the side of the plaintiffs are unable to throw any light on the genuineness of the said Will. That apart, there is no reference about the suit property, in particular, in the said Will.

When the description of the suit property has not been mentioned in the said Will, as rightly found by the trial Court, based on the same, no inference could be made that the same pertains only to the suit property as projected by the plaintiffs.

Accordingly, it is found that the trial Court, on a proper appreciation of the abovesaid aspects of the matter, finding that the title, through which, the plaintiffs lay a claim to the suit property having not been established by the plaintiffs, as above discussed, rightly determined that the Will projected by the plaintiffs is not a true and valid document, accordingly, further proceeded to hold that the other transactions projected by the plaintiffs following the Will cannot be legally countenanced and accordingly, held that the other transactions said to have been effected by the beneficiaries under the alleged Will, would not have the colour of law for upholding their validity and accordingly, disbelieved the plaintiffs' case as such.

11. Even the first appellate Court has come to the conclusion that the plaintiffs have failed to establish the Will projected by them marked as Ex.A1. However, the first appellate Court, on the footing that inasmuch as the suit property belonged to Annamalai padaiyachi dehors the Will Ex.A1, according to the first appellate Court, his daughters would be entitled to the suit property as such, they being the legal representatives of Annamalai Padaiyachi. However, the fact remains that the plaintiffs have not averred as to how Annamalai Padaiyachi had derived the title to the suit property as such, as above seen in the plaint, the plaintiffs have not averred as to how Annamalai Padaiyachi had acquired title to the suit property. Ex.

A1 recites, as if the suit property had been acquired by Annamalai Padayachi, it is stated that the suit property is the self acquired property of Annamalai Padayachi. However, on what basis the suit property had come to be acquired by Annamalai Padaiyachi, there is no material forthcoming on the part of the plaintiffs. Thus, it is found that the reasonings of the first appellate Court that dehors Ex.

property as such cannot be accepted in any manner.

12. The other document on which, the first appellate Court placed reliance is the patta marked as Ex.A3. However, when Ex.A3 patta cannot be construed as a document of title, it is found that the reliance placed on the said document by the first appellate Court for upholding the claim of title of the plaintiffs in respect of the suit property does not merit acceptance in any manner. Barring Ex.A3, we have the UDR patta marked as Ex.A4 and on a perusal of Ex.A4 UDR patta, it is found that the same contains even the name of the defendants and it is thus found that as rightly put forth by the defendants, inasmuch as they also have a right in the suit property, accordingly, in the UDR patta, their names have been included in respect of the suit property and accordingly, it is found that there is no proper explanation on the part of the plaintiffs as to how come the name of the defendants had come to be included in Ex.A4 UDR patta.

13. Based on the patta, it is found that the documents of possession viz., the kist receipts have come to be marked by the plaitnffs and equally, it is found that the defendants have also produced the kist receipts in respect of the suit property on their side. Thus it is found that both the plaintiffs as well as the defendants have marked the kist receipts and such being the position, it is found that the suit property is found to be in the joint possession and enjoyment of the plaintiffs as well as the defendants. However, the first appellate Court, on the footing that the defendants have not placed any document of possession prior to 1986, on that basis, seem to have accepted the plaintiffs' case and rejected the defence version.

However, when as seen from the materials placed on record both the plaintiffs as well as the defendants are able to place the kist receipts, which had come into existence prior to the institution of the suit as well as after the suit, merely because, the defendants had failed to place the kist receipts prior to 1986 that by itself would not entitle the plaintiffs to claim any exclusive title to the suit property as projected by them. In any event, as rightly put forth, the kist receipts cannot be equated to the documents of title and at the most, they could only be construed as a piece of evidence for proving the factum of possession to some extent.

that, the suit property is in their valid possession and enjoyment.

14. Accordingly, on an analysis of the materials placed on record, it is found that when the plaintiffs have based their title to the suit property only by way of the Will dated 01.02.1961 marked as Ex.A1 and when the plaintiffs have miserably failed to establish the genuineness and validity of the said Will as per law and when there is no other valid document projected by the plaintiffs to show their entitlement to get the suit property as such, when the revenue records projected in the matter prima facie show the entitlement of the plaintiffs as well as the defendants to the suit property as well as their possession, it is found that the first appellate Court is not justified in granting the reliefs of declaration and permanent injunction in favour of the plaintiffs.

Accordingly, it is seen that when it is noted that both the plaintiffs as well as the defendants are the co-owners in respect of the suit property and also when it is noted that both the parties had established their possession and enjoyment in respect of the suit property, the first appellate Court is found to have erred in granting the relief of permanent injunction in favour of the plaintiffs as against the other co-owners viz.

, the defendants and in toto, it is found that the first appellate Court has failed to appreciate the materials placed on record in the proper perspective and resultantly, it is seen that the reasonings and conclusions arrived at by the first appellate Court for upholding the plaintiffs' case are totally perverse and illogical and therefore, the judgement and decree of the first appellate Court in favour of the plaintiffs cannot be allowed to stay any further. The substantial questions of law formulated in the second appeal are accordingly answered in favour of the defendants.

In conclusion, the Judgement and Decree dated 18.12.2001 passed in A.S.No.139 of 2000 on the file of the Principal District Court, Villupuram, are set aside and the Judgment and Decree dated 07.08.2000 passed in O.S.No.26 of 1997 on the file of the Principal District Munsif Court, Ulunthurpettai are confirmed and accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.

s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar

sms To

1. The Principal District Court, Villupuram.

2. The Principal District Munsif Court, Ulunthurpettai.

3. The Section Officer, V.R.Section, High Court, Madras. +1 CC to Mr.R. Vasudevan, Advocate sr 40585.

S.A.No.1746 of 2004 SKV(CO) SP(17/07/2018)