AP AND TELANGANA HIGH COURT – MOTOR ACCIDENT CLAIM – In the instant case, there is also a dispute with regard to the age of the deceased. Though the learned counsel for the appellants contends that the age of the deceased was 27 years, the appellants have not produced any proof in that regard, therefore, the Tribunal has taken the age of the deceased as 35 years notionally basing on the age of his children.= the appropriate multiplier for the age group of the deceased at 35 years is 16. If the income of the deceased is taken as Rs.2,500/- per month, after deducting 1/5th towards personal expenses of the deceased, the contribution to the family will come to Rs.2,000/- per month and Rs.24,000/- per annum. If the same is multiplied by the appropriate multiplier 16, it comes to Rs.3,84,000/-. Therefore, the appellants are entitled for a sum of Rs.3,84,000/- towards loss of dependency. Besides the same, the Tribunal has awarded non-pecuniary damages of Rs.15,000/- and if the same is added, it comes to Rs.3,99,000/-.

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HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

M.A.C.M.A.No.213 OF 2006

06-10-2017

Giddaluri Kasthuramma (died) Giddaluri Naga Jyothi and others. Appellants

K. Sivaprakasam and another Respondents

 

Counsel for the appellants:Sri M. Venkata Narayana

Counsel for the respondents :None appeared

<GIST:

>HEAD NOTE:

? Cases referred

1. MANU/SC/7089/2008
2. MANU/SC/7776/2007
3. MANU/SC/7915/2007
4. (2007) 3 SCC 538
5. 2009 (6) SCC 121

 

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

 

M.A.C.M.A. No.213 of 2006

 

JUDGMENT :

This Civil Miscellaneous Appeal, under Section 173 of the
Motor Vehicles Act, 1988 (for brevity the Act), is preferred by
the appellants/petitioners seeking enhancement of
compensation challenging the order and decree dated
26.10.2005 in O.P.No.585 of 2003 passed by the Motor
Vehicles Accident Claims Tribunal (Principal District Judge),
Nellore (for brevity the Tribunal), awarding compensation of
Rs.1,70,000/- with interest at 7.5% per annum as against the
claim of Rs.4,00,000/- laid by them under Section 166 of the
Act, for the death of the deceased Nagaraju in a motor
accident that occurred on 27.05.2003.

2. The brief facts of the case are that the appellants are the
petitioners, who filed O.P.No.585 of 2003 claiming
compensation of Rs.4,00,000/- against respondent Nos.1 and
2, who are owner and insurer, respectively, of the offending
Lorry, for the death of the deceased Nagaraju, aged 27
years, in a motor accident that occurred on 27.05.2003 at 2.10
a.m., stating that while the deceased was running a Hotel at
Ananthavaram village, the driver of the lorry bearing
No.NL.01/A-5843 drove it in a rash and negligent manner and
dashed against the hotel, as a result of which, the deceased
died instantaneously.

3. Before the Tribunal, respondent No.1 owner of the
offending vehicle remained exparte and the 2nd respondent
insurer alone contested the claim by filing counter denying its
liability and contending that the quantum of compensation
claimed is highly excessive and untenable.

4. After considering the pleadings and evidence available on
record, vide order and decree dated 26.10.2005, the Tribunal
awarded a compensation of Rs.1,70,000/- with proportionate
costs and interest @ 7.5% per annum from the date of petition
till realization payable by respondent Nos.1 and 2 jointly and
severally. Having dissatisfied with the said compensation, the
petitioners have filed the present Civil Miscellaneous Appeal
seeking enhancement of compensation.

5. Heard Sri M. Venkatanarayana, learned counsel for the
appellantspetitioners. Though notice is served on the 2nd
respondent insurer, none appeared on their behalf. Perused
the order under challenge and also the evidence on record.

6. The only point that arises for consideration in this appeal
is, whether the appellants are entitled for enhancement of
compensation?

7. Learned counsel for the appellants submitted that
though the age of the deceased was 27 years old by the date of
accident and he was earning Rs.150/- per day, the Tribunal
has taken the income of the deceased @ Rs.40/- per day and @
Rs.1,200/- per month, which is very meager. His main
argument is with regard to the notional income of the deceased
adopted by the Tribunal at Rs.1,200/- per month in assessing
the compensation.

8. At the outset, it is obvious that the Tribunal has
answered issue No.1 in favour of the appellants holding that
the accident occurred due to the rash and negligent driving of
the driver of the crime lorry. The said fact has not been
disputed by the insurer of the crime vehicle by filing any appeal
or cross-objections. Therefore, there is no dispute with regard
to the liability of the 2nd respondent insurer. The dispute is
only with regard to the quantum of compensation awarded by
the Tribunal.

9. The Tribunal has taken the notional income of the
deceased as Rs.1,200 per month @ Rs.40/- per day, as he was
working as daily wage labourer. No doubt, there is no proof
with regard to the income of the deceased and hence the
Tribunal has taken his income at Rs.1,200/- per month, which
appears to be on lower side. Therefore, in the light of the
catena of decisions rendered by the Apex Court in Ramesh
Singh v. Satbir Singh , New India Assurance Company
Ltd. v. Smt. Shanti Pathak , Oriental Insurance Co. Ltd.
v. Syed Ibrahim , New India Assurance Co. Ltd., v.
Kalpana (Smt) , a minimum of Rs.3,000/- per month can be
taken as the monthly income of a person working in an
unorganized Sector.

10. In the instant case, there is also a dispute with regard to
the age of the deceased. Though the learned counsel for the
appellants contends that the age of the deceased was 27
years, the appellants have not produced any proof in that
regard, therefore, the Tribunal has taken the age of the
deceased as 35 years notionally basing on the age of his
children. However, this Court is not inclined to delve into the
said aspect of fixing the age of the deceased, since the Tribunal
has already taken the age of the deceased as 35 years,
which in my considered view is probable age of the deceased
having grown up children of 13 years old. As per the decision
in Smt. Sarla Verma and others Vs. Delhi Transport
Corporation and another , the appropriate multiplier for the
age group of the deceased at 35 years is 16. If the income of
the deceased is taken as Rs.2,500/- per month, after deducting
1/5th towards personal expenses of the deceased, the
contribution to the family will come to Rs.2,000/- per month
and Rs.24,000/- per annum. If the same is multiplied by the
appropriate multiplier 16, it comes to Rs.3,84,000/-.
Therefore, the appellants are entitled for a sum of
Rs.3,84,000/- towards loss of dependency. Besides the same,
the Tribunal has awarded non-pecuniary damages of
Rs.15,000/- and if the same is added, it comes to
Rs.3,99,000/-.

11. Thus the compensation awarded by the Tribunal is
enhanced as mentioned below:
—————————————————————————
Compensation towards Amount awarded Amount awarded
by the Tribunal by this Court
Rs. Rs.
—————————————————————————
1. Loss of dependency 1,53,600.00 3,84,000.00
2. Non-pecuniary damages 15,000.00 15,000.00
————— —————
TOTAL : 1,68,600.00 3,99,000.00
————— —————

12. In the result, the Civil Miscellaneous Appeal is allowed in
part, enhancing the amount of compensation from
Rs.1,70,000/- to Rs.3,99,000/- (Rupees three lakhs ninety
nine thousand only) with proportionate costs and the enhanced
amount also shall carry interest @ 7.5% per annum from the
date of petition till the date of realization. The respondents are
directed to deposit the compensation amount within two
months from the date of receipt of a copy of this judgment. On
such deposit, the appellants are permitted to withdraw the
same as per the apportionment made by the Tribunal. No
order as to costs.

13. As a sequel, miscellaneous petitions pending, if any, shall
stand closed.
_______________________________
GUDISEVA SHYAM PRASAD, J
06.10.2017.

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AP AND TELANGANA HIGH COURT – QUASHING OF FIR AND CHARGE SHEET – Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961.= On consideration of the material on record and in view of the fact that there are specific allegations against the petitioners/A.2 to A.5 in the complaint and also in the charge sheet, I do not see any valid grounds to quash the proceedings against them in C.C.No.184 of 2011.

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HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

CRIMINAL PETITION No.10207 of 2011

 

05-10-2017

Thumma Uma Rani and others. Appellant

State, rep. by Public Prosecutor High Court of A.P. and another. Respondents

Counsel for the petitioners : Smt. S.A.V. Ratnam

Counsel for the respondents: Public Prosecution for R.1
Sri E.Venkata Reddy for R.2

 

<GIST:

>HEAD NOTE:

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

 

CRIMINAL PETITION No.10207 of 2011

 

ORDER :

This Criminal Petition is filed under Section 482 Cr.P.C.,
to quash the proceedings initiated against the petitioners/A.2
to A.5 in C.C.No.184 of 2011 on the file of the Court of IV
Additional Munsif Magistrate, Warangal District, registered for
the offences punishable under Section 498-A IPC and Sections
3 and 4 of Dowry Prohibition Act, 1961.

2. The brief facts of the case are that A.1 is husband, A.2 is
mother-in-law, A.3 is brother-in-law, A.4 and A.5 are sister-in-
laws of respondent No.2 defacto complainant. The marriage
of the 2nd respondent was performed with A.1, who is the eldest
son of petitioner No.1 (A.2) on 14.12.2006 as per Hindu
Customs and Rights at Paradise Function Hall, Subedari,
Hanamkonda. After the marriage, the 2nd respondent and her
husband-A.1 lived happily for sometime in the house of the
petitioners. At the time of marriage, as per the demand of A.1
to A.5, net cash of Rs.2.00 Lakhs, Fixed Deposit amount of
Rs.1,50,000/-, Gold ornaments worth Rs.1.00 Lakh and other
household articles worth Rs.50,000/- were given to A.1
towards dowry in the presence of the marriage elders – LWs.4
and 5. After the marriage the 2nd respondent joined the
company of the accused at FCI Colony, Julaiwada,
Hanamkonda. They led their conjugal life amicably for about 4
months. Thereafter the accused started harassing her mentally
and physically on the ground that she is in black complexion
and brought less amount of dowry and also demanded to bring
additional dowry of Rs.2.00 Lakhs. Later A.1 left respondent
No.2 at her parents house, where she stayed for about 8
months. During that period, LWs.2 and 3, who are mother and
father of respondent No.2, went to the house of the accused
and expressed their inability to provide such a huge amount of
additional dowry. Later on 20.11.2007 the father of A.1 died
and the death intimation was given to respondent No.2 by A.1.
On such intimation, respondent No.2 went to her matrimonial
house. Thereafter, A.1 to A.5 again started harassing her
mentally and physically demanding to bring additional dowry.
On coming to know about the same, LWs.2 and 3 brought her
back to their house and the 2nd respondent stayed at her
parents house for 3 months, but A.1 did not turn up to take
her back. Therefore, on 13.03.2008 the 2nd respondent lodged
a complaint at P.S. Subedari, on which the S.I. of Police
advised to settle the matter through Panchayat and Panchayat
was held before the elders on 30.03.2008, where A.1 to A.5
admitted their guilt and promised that they will not harass the
2nd respondent for additional dowry and took her to
matrimonial house on 17.04.2008. One week thereafter, A.1 to
A.5 again started harassing her mentally and physically on
flimsy issues for additional dowry. Subsequently on
27.08.2008, LWs.2 and 3 went to the house of the accused and
on demand of the accused to provide additional dowry, they
brought back the respondent No.2 to their house. Since then
the 2nd respondent is staying at her parents house and by the
date of lodging the complaint, she was carrying 3
months pregnancy. On the complaint lodged by the 2nd
respondent, a case in Crime No.409/2008 was registered
against A.1 to A.5 for the offences punishable under Sections
498-A IPC and Sections 3 and 4 of Dowry Prohibition Act. After
investigation, the police filed charge sheet against A.1 to A.5 for
the said offences. Aggrieved by the same, the petitioners, who
are A.2 to A.5 filed the present Criminal Petition seeking to
quash the proceedings in C.C.No.184 of 2011.

3. Heard the arguments of Sri S.A.V. Ratnam, learned
counsel for the petitioners/A.2 to A.5 as well as the learned
Public Prosecutor appearing for 1st respondent State and Sri
E. Venkata Reddy, learned counsel for the 2nd respondent
defacto complainant and perused the material on record.

4. Learned counsel for the petitioners mainly submitted that
petitioner Nos.3 and 4, who are A.4 and A.5, respectively, are
married and are living separately and hence they have not
committed any offence and they were falsely implicated in the
present case. Learned counsel would further submit that there
are no specific allegations against A.2 to A.5 in the charge sheet
and, therefore, the proceedings against them may be quashed.

5. On the other hand, learned Public Prosecutor appearing
for 1st respondent State as well as Sri E. Venkata Reddy,
learned counsel for the 2nd respondent defacto complainant
submits that there are specific allegations against A.2 to A.5 in
the complaint as well as in the charge sheet and hence there
are no grounds to quash the proceedings against them and
that they have to face the trial.

6. On consideration of the material on record and in view of
the fact that there are specific allegations against the
petitioners/A.2 to A.5 in the complaint and also in the charge
sheet, I do not see any valid grounds to quash the proceedings
against them in C.C.No.184 of 2011.

7. Accordingly, this Criminal Petition is dismissed. As a
sequel, miscellaneous petitions pending, if any, shall stand
closed.
______________________________
GUDISEVA SHYAM PRASAD, J
05.10.2017

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MADURAI BENCH OF MADRAS HIGH COURT – all sisters, seeking partition and separate possession of 1/5th undivided share to each one of the Plaintiffs and for a direction against the Defendants 1 and 2 to pay future mesne profits from the date of the plaint till the date of realisation and for costs. =As pointed by the Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC 2134}, a Will of a man is the aggregate of his testamentary intentions manifested in writing and is not a transfer.; Sangaiah Servai died only on 25.11.2010. On that date, he had an undivided 1/6th share in the suit properties. By the definition of ‘will’ he could bequeath only his property, which naturally means that he could only bequeath 1/6th undivided share. Consequently, the Appellant, who already has an existing 1/6th share, would be entitled to an additional 1/6th share in view of the bequeath made by his father Sangaiah Servai through Ex.B4. In such circumstances, the Appellant herein would be entitled to an undivided 2/6th share and the Respondents, who are the Plaintiffs would be entitled to only 1/6th share each in the suit properties. Similarly, the 4th Defendant, who was the 1st Defendant in the suit, would also be entitled to an undivided 1/6th share. This naturally means that the judgement and decree appealed against this does not warrant any interference since the Trial Court had also granted an undivided 1/6th share to each one of the Plaintiffs.

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 30.08.2017

RESERVED ON : 27.06.2017

PRONOUNCED ON : 30.08.2017

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

AS(MD)No.25 of 2014
CMP(MD)No.12128 of 2016

S.Narayanan Appellant

Vs

1.V.Meenakshi
2.M.Saraswathi
3.A.Indira
4.S.Mariappan
5.H.Zaheer Hussain
6.M.Karunakaran Respondents

Prayer:- This Appeal Suit is filed against the judgement and decree dated
5.1.2013 made in OS.No.232 of 2010 on the file of the IV Additional District
Judge, Madurai.

For Appellant : Mr.C.Sundaravadivel

For Respondent : Mr.K.P.Narayanakumar-RR1to3

:JUDGEMENT

This appeal suit has been filed by the 2nd Defendant in OS.No.232
of 2010 on the file of the IV Additional District Court, Madurai, aggrieved
by the judgement and decree dated 5.1.2013.
2. The suit had been filed by the three Plaintiffs, namely,
V.Meenakshi, M.Saraswathi and A.Indira, who are all sisters, seeking
partition and separate possession of 1/5th undivided share to each one of the
Plaintiffs and for a direction against the Defendants 1 and 2 to pay future
mesne profits from the date of the plaint till the date of realisation and
for costs.
3. In the plaint Schedule, there were two items of suit
properties. Item (1) is the land and building in Door No.202, TS.No.783/1
and 783/2, Old Ward No.4, New Ward No.13, Madurai Town and Item (2) is the
land and building in Door No.200, in TS.No.783/5, Madurai Town.
4. As stated above, the Plaintiffs are sisters. The 1st
Defendant, S.Mariappan, and the 2nd Defendant, S.Narayanan are brothers. The
3rd Defendant, H.Zakeer Hussain and the 4th Defendant, M.Karunakaran are the
tenants in the suit properties. It has been stated that the suit property
originally belonged to one Ayyasamy Servai, who had two sons, Sangaiah Servai
and Balusamy Servai. There was a partition suit between them in OS.No.430 of
1983 and finally, the suit properties had been allotted to Sangaiah Servai.
The wife of Sangaiah Servai died 13 years prior to the filing of the suit and
Sangaiah Servai died on 14.9.2010. The Plaintiffs and the Defendants 1 and 2
are his legal representatives. The Plaintiffs claimed that the 2nd Defendant
is trying to alienate the suit properties. In such circumstances, claiming
their individual 1/5th undivided share, the Plaintiffs have filed the suit.
5. The 2nd Defendant has filed his written statement. According
to him, the father, Sangaiah Servai had executed a will dated 5.12.2001,
bequeathing his properties to him. Consequently, he claimed that both the
suit properties devolved on to him through the will and therefore, stated
that the suit should be dismissed.
6. The Defendants 3 and 4, who are the tenants, had also filed a
written statement. They stated that they are the tenants in the suit
properties. According to them, the 2nd Defendant had been receiving the
monthly rents. They claimed that they cannot be evicted except under due
process of law. The 1st Defendant had filed a written statement and did not
participate during the trial proceedings and he was set exparte.
7. On consideration of the pleadings, the court below had framed
the following issues for trial:-
1.Whether Sangaiah Servai executed a registered will in favour of the 2nd
Defendant on 5.12.2001?

2.Whether the Plaintiffs valued the suit property and proper court fee paid?

3.Whether the plaint is bad for mis joinder and non joinder of proper and
necessary parties?

4.Whether the Plaintiffs are entitled to 1/5th share and for mesne profits
from the Defendants 1 and 2?

5.To what further relief the parties are entitled to?

8. during the trial, the 1st Plaintiff was examined as PW.1 and
she marked Ex.A1 to Ex.A4. Ex.A2 is the death certificate of Sangaiah
Servai. Ex.A2 is the legal heirship certificate. Ex.A3 dated 12.6.1985 is
the copy of partition deed. Ex.A4 is the copy of election identity card. On
the side of the Defendants, three witnesses were examined. The 2nd
Defendant, S.Narayanan was examined as DW.1 and two independent witnesses,
S.M.Kamaludheen and Rajamani were examined as DW.2 and DW.3. The Defendants
marked Ex.B1 to Ex.B12. Ex.B1 dated 16.3.1950 is the copy of the will and
Ex.P2 dated 4.4.1962 is the settlement deed in favour of the Sangaiah Servai.
Ex.B3 is the death certificate of Nallammal and Ex.B4 dated 5.12.2001 is the
will executed by Sangaiah Servai. Ex.B5 to Ex.B9 are the revenue documents
and Ex.B10 to Ex.B12 are the marriage invitation cards of the three
Plaintiffs.
9. On consideration of the oral and documentary evidence, the
Trial Court had held that the suit properties were ancestral in nature and it
was further held that the will of Sangaiah Servai dated 5.12.2001, marked as
Ex.B4 had been proved in accordance with law. The Trial Court further held
that since Sangaiah Servai died on 25.11.2010, as seen from Ex.A1, death
certificate, and during the intervening period in 2005, the Succession Act
had been amended bringing about the shares in ancestral property to the
daughters of a family. Consequently, the Trial Court found that the
Sangaiah Servai’s will, which came into effect on his death on 25.11.2010,
was operative only with respect to 1/6th share. The Trial Court further
found that as on the date of death of Sangaiah Servai, the three Plaintiffs
and the two Defendants and Sangaiah Servai were entitled to undivided 1/6th
share. Consequently, the Trial Court had granted a judgement and decree in
favour of the the Plaintiffs for an individual 1/6th undivided share each and
held that the 1st Defendant was also entitled to an undivided 1/6th share and
the 2nd Defendant was entitled to an undivided 2/6th share in the suit
properties. With respect to the future mesne profits, the Trial Court had
held that the Plaintiffs were at liberty to proceed under Order 12 Rule 13 of
CPC. The suit was dismissed as against the Defendants 3 and 4. As against
the said judgement and decree, the 1st Defendant had filed the present
appeal.
10. This court heard the learned counsel on either side and also
perused the materials placed on record.
11. The main issue, which arises for consideration in the appeal
is whether the will dated 5.12.2001, marked as Ex.B4, executed by Sangaiah
Servai, the father of the Plaintiffs and the Defendants 1 and 2, but which
came into operation on his death on 25.11.2010, will have the force of
bequeathing the suit properties on the 2nd Defendant in entirety or whether
the will can be operative only with respect to the share of Sangaiah Servai
as on the date of his death.
12. Both the learned counsel contended that the will marked as
Ex.B4 had been proved in accordance with law. They also admitted that both
the suit properties were ancestral properties. The will was executed on
5.12.2001. Sangaiah Servai died on 25.11.2010.
13. In 2009 4 CTC 440 (K.V.Ramasamy Vs. K.V.Raghavan and others)
B, this court had held that after the enactment of the Hindu Succession Act,
1956 as amended to Act 39 of 2005, the daughters are to be treated equally as
coparceners along with the sons. Consequently, in this case, when the Act
came into force and when the will was not produced or revealed, the three
Plaintiffs and the Defendants 1 and 2 and their father Sangaiah Servai became
entitled to an undivided 1/6th share in the suit properties.
14. In this connection, Section 2(h) of the Indian Succession
Act, 1925 defines ‘will’ as ?the legal declaration of the intention of a
testator with respect to his property which he desires to be carried into
effect after his death.? It is pertinent to pointed out that through a
will, a person can bequeath only his properties. This naturally means that
if an ancestral property is bequeathed, the will can take effect only with
respect to the share of the testator in the said property. In this case,
Section 6 of the Hindu Succession Act, had been amended in 2005. Subsequent
to the said amendment, Section 6 of the Hindu Succession Act reads as
follows:-
?6. Devolution of interest in coparcenary property:- (1) On and from the
commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener shall,-

a. by birth become a coparcener in her own right in the same manner as the
son.

b. have the same rights in the coparcenary property as she would have had if
she had been a son.

c. be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub section shall affect or
invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the 20th
day of December 2004.?

15. In this connection, the learned counsel for the Appellant has
stated that since there has been a testamentary disposition of the property
even prior to the amendment of the Hindu Succession Act and since the will
Ex.B4 had been proved in accordance with law, the property must devolve only
to the Appellant in accordance with the will. In this connection, the point,
which arises for determination, is whether mere execution of a will prior to
the amendment of Hindu Succession Act was sufficient to make the will come
within purview of expression, ‘testamentary disposition’, particularly, since
the testator died much later only on 25.11.2012.
16. A careful look at Section 6(1) would show that by the
amendment brought forth by Central Act No.39/2005, the daughter of a
coparcener in a joint Hindu family governed by the Mitakshara law was made a
coparcener by birth, in the same manner as the son and was vested with the
same rights and obligations in respect of the coparcenery property, as a son
would have. But the proviso to sub-section (1) makes it clear that nothing
therein would affect or invalidate any disposition or alienation including
any partition or testamentary disposition which had taken place before
20.12.2004.
17. Two expressions appearing in the proviso to sub-section (1)
of Section 6 are of significance. They are (1) disposition and (2)
alienation. These two expressions are followed by a rider to the effect that
any partition or testamentary disposition is also included within the purview
of these two expressions.
18. While there is no difficulty in understanding the purport of
the expression alienation, there is some difficulty in expounding the meaning
of the expression disposition. This difficulty is compounded by the inclusion
of testamentary disposition, within the meaning of the expression
disposition. Normally one would understand the expression testamentary
disposition to mean the execution of a testamentary instrument, the bequest
under which is to take effect in future, while alienation takes place in
praesenti. Therefore the confusion or difficulty posed by the proviso to
Section 6(1) is as to whether it includes a testamentary disposition that has
come into effect due the death of the testator before the crucial date or a
bequest which has not yet come into effect, due to the testator being alive
as on the crucial date.
19. The question as to whether, the Hindu Succession (Amendment)
Act, 2005 will have retrospective effect or not, has been answered by the
Supreme Court in Prakash v. Phulavat (2016)2 SCC 36. The Supreme Court held
therein that the rights under the amendment are applicable to living
daughters of living coparceners as on 9th September, 2005 irrespective of
when such daughters were born. The Supreme Court further held that
disposition or alienation including partition, which may have taken place
before 20.12.2004 as per the law applicable prior to the said date, will
remain unaffected.
20. In Pavitri Devi v. Darbari Singh, (1993) 4 SCC 392, the
Supreme Court referred to the expression ‘testamentary disposition’ appearing
in Section 30 (1) and went into the scope and ambit of the said expression in
paragraph 3. Paragraph-3 of the said decision reads as follows:
Webster in Comprehensive’ Dictionary in international edition at page 1298,
stated the meaning of the word ‘testamentary’ thus: (i) derived from,
bequeathed by, or set forth in a will; (ii) appointed or provided by, or done
in accordance with, a will; (iii) pertaining to a will, or to the
administration or settlement of a will, testamental. In the Law Lexicon by P.
Ramanatha Aiyar, reprint edition 1987 at P. 1271 testamentary instrument was
defined to mean a “testamentary instrument” is one which declares the
present will of the maker as to the disposal of his property after death,
without attempting to declare or create any rights therein prior to such
event. Black’s Law Dictionary [6th Ed. 1991] defines “testamentary
disposition” at page 1475 thus – “the passing of property to another upon the
death of the owner. A disposition of property by way of a gift, Will or deed
which is not to take effect unless the grantor dies or until that event.”
Section 123 of the Transfer of Property Act provides disposition by a gift
which takes effect even during the lifetime of the donor and effective as
soon as it is registered and normally given possession of the property
therein. Section 30 of the Act is merely declaratory of the law not only as
it stood before the Act, but as it now stands modified by the provisions of
the Act. It declares that any Hindu may dispose of by a will or other
testamentary disposition his property or interest in coparcenary which is
capable of being so disposed of by him in accordance with the provisions of
the Indian Succession Act, 1925 or any other law for the time being in force
applicable to the Hindus. Its explanation is really material. The
testamentary disposition, therefore, would mean disposition of the property
which would take effect after the death, instead of co-instentine on the
execution of the document. A testamentary disposition is generally effected
by a will or by a codicil which means an instrument made in relation to a
will extending, altering or adding to its disposition arid is to be deemed to
form part of the will. Will as defined in Section 2(h) of the Indian
Succession Act, 1925 means legal declaration of the intention of the testator
with respect to his property which he desired to carry into effect after his
demise. It limits alienation intra vivos. While the gift being a disposition
in presenting, it becomes effective on due execution and registration and
generally delivery of the possession. Section 30 makes it clear that
testamentary disposition under the Act would be dealt with in accordance with
the Indian Succession Act. Section 55 and Schedule 3 of the said Act
prescribe procedure effecting succession amongst Hindus by testamentary
succession by will or codicil. Section 30 employs non-obstinate clause and
excludes from the operation of pre-existing or any other law applicable to
coparcenery property governed by Mitakshara law and introduced fiction in its
explanation and empowers the Hindu male or female to dispose of his or her
interest by a will or any other testamentary disposition known to law-which
would be effective after the demise. It would, therefore, be difficult to
envisage that disposition by gift partakes the character of testamentary
succession under Section 30 of the Act.
21. However, the Honourable Supreme Court was concerned in
Pavitri Devi with a gift deed and not a Will. A gift is actually a transfer
of property, while a Will is not. By its very nature, a testamentary
disposition is one which does not take effect and which does not become
final, unless and until the testator dies. It is not only the bequest under a
Will, which is subject to various uncertainties, dependent upon the life and
wish of the testator, but even the right of the testator to bequeath a
particular property may undergo a change before he dies. Take for instance a
case where the testator begets a child after the execution of Will. If his
undivided share in the joint family property had been the subject matter of
the Will, his own share may undergo a change with the birth of a son after
the execution of the Will. In peculiar cases it may even happen with the
birth of a sibling to the testator. Therefore, a testamentary disposition can
never be an actual disposition in the true sense of the term, since its
coming into effect as well as the extent to which it takes effect, are always
subject to the uncertainties of time and mind, apart from birth and death. As
pointed out by the Supreme court in Mathai Samuel Vs. Eapen Eapen {(2012) 13
SCC 80}, a Will is merely a legal declaration of the testators intention
and its essential characteristic is its ambulatoriness and revocability.
22. Unfortunately, the word disposition itself emerged from the
English language and law and hence the manner in which law dictionaries have
expounded the term, is in tune more with linguistics than with law. This is
perhaps why the Supreme court pointed out in Goli Eswariah vs. Commissioner
of Gift Tax {AIR 1970 SC 1722} that the word disposition is not a term of
law, having a precise meaning and that its meaning has to be gathered from
the context in which it is used.
23. Blacks Law Dictionary defines disposition to mean the fact of
transferring something to anothers care or possession especially by deed or
will; the relinquishing of property. The same dictionary defines testamentary
disposition to mean a disposition to take effect upon the death of the person
making it, who retains substantially entire control of the property until
death. P. Ramanatha Aiyars the Law Lexicon (3rd Edition 2012) deals with the
definition of the word disposition in a variety of circumstances. One of the
several connotations given in the Law Lexicon is as follow:
The word disposition in relation to property means disposition made by deed
or will and also disposition made by or under a decree or under order of a
Court as the qualifying phrase used in Section 21(2), viz., including any
transfer in execution of a decree or order of a Court, Tribunal or authority
(Sanjay v. State of Maharashtra AIR 1986 SC 414).
24. The right of a Hindu to dispose of his property by will or
other testamentary disposition is recognised by Section 30 of the Hindu
Succession Act. It is that in Section 30, the expression testamentary
disposition is used. A careful look at the manner in which Section 30 is
worded would show two things, viz., – a) that a testamentary disposition
could be either by way of will or otherwise; and b) that what is sought to be
done through will or other testamentary disposition is considered by Section
30 to be a disposal.
25. Interestingly the Oxford English Dictionary defines the word,
whenever used as a noun in the branch of law, to mean the distribution or
transfer of property or money to someone especially by bequest. The origin
and etymology of the word disposition, as indicated in Merriam Webster
Dictionary shows that the word evolved in the 14th century from the Latin
word Disposition and from the word disponere. Though no disposition or
disposal or distribution of property takes place at the time of execution of
the Will, the word disposition has come to be associated even with
testamentary instruments.
26. But the Proviso to section 6(1) does not merely use the
expression testamentary disposition. It starts with the word disposition,
then proceeds to include testamentary disposition within its ambit and then
qualifies it with the words which had taken place. Therefore, we think that
the proviso to Section 6(1) has to be split into 3 parts
(i) the first part containing the words disposition or alienation

(ii) the second part containing the words including any partition or
testamentary disposition and

(iii) the third part containing the words which had taken place before 20-
12-2004.
27. Therefore, if a case is to be brought within the purview of
the proviso to section 6(1), especially in relation to a Will, 2 things are
to be proved namely (i) that there was a valid Will and (ii) that the
disposition under the Will had taken place before the date specified. The
disposition under a Will would take place only when the testator dies and not
otherwise. This is not only due to
the very nature of testamentary disposition but also due to the fact that
during the period between the date of execution of the Will and the date of
death of the testator, many things may happen, even beyond the control of the
testator, that would make the bequest invalid, wholly or partially.
Therefore, the expression testamentary disposition appearing in the proviso
to section 6(1) should be understood to mean only a Will which had taken come
into effect before 20-12 2004. The words which had taken place should be
understood to mean which had taken effect.
28. There is one clue available in Section 6 itself, for anyone
to come to the same conclusion as we have. It is in sub-section (5) and the
Explanation following the same. Sub-section (5) of section 6 and the
Explanation following the same, read as follows:
(5) Nothing contained in this section shall apply to a partition, which has
been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section partition means any partition
made by execution of a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908) or partition effected by a decree of a
Court.
29. While the proviso under sub-section (1) of section 6 excludes
from the operation of sub-section (1), any alienation or disposition,
including any partition or testamentary disposition that has taken place
before the appointed day, sub-section (5) excludes from the operation of
section 6 in entirety, a partition made by a registered deed or a partition
effected by a decree of court. It is important to note that the proviso to
sub-section (1) is confined in its applicability to sub-section (1). In
contrast, the prescription contained in sub-section (5) and the Explanation
there under, are applicable to the entirety of section 6.
30. The prescription contained in sub-section (5) and the
Explanation following the same, give a clear indication to the fact that the
law makers did not want parties to plead oral partition effected before the
appointed day, for the purpose of defeating the right created by the
Amendment Act. An oral partition or a Memorandum recording past partition,
had always been accepted by courts, subject to proof. But the Explanation to
section 6, makes it clear that unless a partition had been effected by a
registered deed or by a decree of court, the benefit of sub- section (5) may
not be available.
31. It is needless to point out that in a partition, mutual
transfers take place in presenti. Even then, the benefit of sub-section (5)
will not be available unless the partition had been effected by a registered
deed or a decree of court. Therefore, the intention of the law makers is very
clear to the effect that no one should be allowed to create documents, after
the advent of the Amendment Act of 2005, to defeat the rights conferred by
the amendment. In order to prevent the creation of ante dated documents, the
Amendment ensures that even reliance upon such documents is impermissible.
In such circumstances, if the expression testamentary disposition is taken to
mean the mere execution of a Will, the rights conferred by section 6 can be
easily defeated by parties by setting up a Will, which is not required to be
compulsorily registered.
32. Therefore, I am of the considered view that in cases where
the testator was alive as on 20-12-2004, the Will, even if any executed by
him genuinely before the said date, would not make it a case of testamentary
disposition which had taken place, so as to make the case fall under the
proviso and to take it out of the application of section 6(1). In other
words, a case will fall under the proviso to section 6(1), only if 2 things
had taken place before 20-12 2004 namely (i) execution of a Will and (ii) the
death of the testator. The execution of the Will before 20-12 2004 alone is
not sufficient to take a case out of the operation of section 6(1), as no
disposition under the Will would have taken place, if the testator was alive.
As pointed by the Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC
2134}, a Will of a man is the aggregate of his testamentary intentions
manifested in writing and is not a transfer.
33. In the present case, it is seen that Sangaiah Servai died
only on 25.11.2010. On that date, he had an undivided 1/6th share in the
suit properties. By the definition of ‘will’ he could bequeath only his
property, which naturally means that he could only bequeath 1/6th undivided
share. Consequently, the Appellant, who already has an existing 1/6th share,
would be entitled to an additional 1/6th share in view of the bequeath made
by his father Sangaiah Servai through Ex.B4. In such circumstances, the
Appellant herein would be entitled to an undivided 2/6th share and the
Respondents, who are the Plaintiffs would be entitled to only 1/6th share
each in the suit properties. Similarly, the 4th Defendant, who was the 1st
Defendant in the suit, would also be entitled to an undivided 1/6th share.
This naturally means that the judgement and decree appealed against this does
not warrant any interference since the Trial Court had also granted an
undivided 1/6th share to each one of the Plaintiffs.
34. In the result, this appeal suit is dismissed. With respect
to the mesne profits, I also hold as held by the Trial Court that the
Plaintiffs 1 to 3 are at liberty to proceed under Order 12 Rule 13 of PC. No
costs. Consequently, the connected MP is closed.

 

To:

1.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.

2.The IV Additional District Judge, Madurai.
.

Posted in Uncategorized

MADURAI BENCH OF MADRAS HIGH COURT – Section 16(1) of the Hindu Marriage Act =the plaintiffs have miserably failed to establish that there has been a valid marriage between Rajammal and Rathinam Pillai and that the plaintiffs have been born out of the said wedlock or even born to him through Rajammal illegally, it is found that the plaintiffs as such are not entitled to claim any share in the suit properties even on the footing that they are the illegitimate children of Rathinam Pillai and accordingly, it is found that the plaintiffs are not entitled to invoke Section 16(1) of the Hindu Marriage Act for claiming the limited reliefs as prayed for in the plaint.= I hold that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai, I further hold that the plaintiffs are not the children of the deceased Rathinam Pillai. Consequently, I hold that the plaintiffs are not entitled to claim any partition and separate possession of their respective shares in the suit properties as prayed for. I further hold that Rajeswari is the legally wedded wife of the deceased Rathinam Pillai and the defendants are the children of the deceased Rathinam Pillai. Accordingly, Point Nos.I to IV are answered against the plaintiffs and in favour of the defendants.

 

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 17.08.2017

Date of Reserving the Judgment
Date of Pronouncing the Judgment
02.08.2017
17.08.2017

 

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN

A.S.No.276 of 2004
and
M.P.(MD) Nos.1 of 2011 & 1 of 2013
and
C.M.P.(MD) No.6506 of 2017

 

1.Rajaselvi
2.Maheswari … Appellants

-vs-

 

1.Meenatchi

2.Ponnu Velammal

3.Karthigairani … Respondents

PRAYER: Appeal is filed under Section 96 of the Code of Civil Procedure to
set aside the Judgment and Decree, dated 27.09.2002 made in O.S.No.66 of
1985, on the file of the Sub Court, Periyakulam.

!For Appellants : Mr.M.Thirunavukkarasu

^For Respondents : No appearance for R1
Mr.R.Vijayakumar for R2 & R3

:JUDGMENT

Impugning the Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of
1985, on the file of the Sub Court, Periyakulam, the first appeal has been
preferred by the plaintiffs.

2. The suit in O.S.No.66 of 1985 has been laid by the plaintiffs for
partition and separate possession of the suit properties.

3. The averments contained in the plaint are briefly stated as follows:
3.1. The suit properties originally belonged to Murugapillai alias Rathinam
Pillai and he died intestate on 24.11.1976 and when he was alive, he had
taken Rajammal as his wife and through her, the plaintiffs were born and all
along Rajammal was living with Rathinam Pillai and Rathinam Pillai had two
elder sisters, namely, Palaniammal and Sakunthala and at the instance of his
sisters, Rathinam Pillai had married Rajeswari, who is the daughter of
Sakunthala, as his second wife and through Rajeswari, the defendants 1 to 3
were born to Rathinam Pillai. Rathinam Pillai had shown equal affection to
all his daughters and he spent for their eduction and after his death, the
second wife Rajeswari had developed contact with one Viputhi Veeramuthuswamy
and thereby, she eloped with him and also took away the first defendant along
with her and subsequently, the plaintiffs learnt that Rajeswari married
Viputhi Veeramuthuswamy and the two other daughters of the deceased Rathinam
Pillai, namely, defendants 2 and 3, were under the care and custody of their
aunt Palaniammal. Hence, Rajeswari as such is not entitled to any share in
her husband’s properties on account of her above said conduct and as
misunderstandings had arisen between the parties and the plaintiffs finding
that it is no longer possible to be in the joint possession of the suit
properties and thereby demanded partition and separate possession and
inasmuch as the defendants did not come forward to effect amicable partition
of the same, according to the plaintiffs, they had been necessitated to lay
the suit for partition claiming their 2/5th share in the same. Further,
according to the plaintiffs, if the Court for any reason comes to the
conclusion that the marriage of Rathinam Pillai with Rajammal is not proved,
still she being kept as the exclusive mistress of the deceased Rathinam
Pillai, the plaintiffs should be treated as his illegitimate children and
thus, would be entitled to 1/4th share in the suit properties.

4. The averments contained in the written statement filed by the defendants 2
and 3 in brief are as follows:
4.1. The suit properties originally belonged to Murugapillai alias Rathinam
Pillai and it is correct to state that Rathinam Pillai died intestate on
24.11.1976. It is false to state that he had taken Rajammal as his wife when
he was alive and the plaintiffs were born through Rajammal out of the above
said alleged marriage between Rajammal and Rathinam Pillai and it is false to
state that Rajammal was all along living with Rathinam Pillai. The date of
marriage has not been given in the plaint for the reasons best known to the
plaintiffs. It is true that Rathinam Pillai had two sisters, namely,
Palaniammal and Sakunthala. It is false to state that Rathinam Pillai had
married Rajeswari, who is the daughter of Sakunthala, as his second wife, on
the other hand, Rajeswari was the only wife of Rathinam Pillai and out of the
said wedlock, the defendants were born to Rathinam Pillai and Rajeswari. The
plaintiffs are not the daughters of Rathinam Pillai and he expired on
24.11.1976. It is false to state that after his death, Rajeswari developed
contact with one Vibuthi Veeramuthuswamy and eloped with him and took the
first defendant along with her. It is true that she married Vibuthi
Veeramuthuswamy and leading a married life with him. It is false to state
that Rajeswari is not entitled to claim any share in suit properties. The
plaintiffs not being the legal heirs of the deceased Rathinam Pillai, they
cannot be deemed to be in joint possession of the suit properties and it is
false to state that the plaintiffs demanded partition of the suit properties
and the defendants failed to effect amicable partition. Rathinam Pillai
never married Rajammal and the same had also been described by Rathinam
Pillai in the settlement deed effected by him in favour of Rajammal and the
plaintiffs are, thus, not entitled to claim share in the suit properties as
the legal heirs of the deceased Rathinam Pillai and the Court fee paid is
incorrect and hence, the suit is liable to be dismissed.

5. On the basis of the pleadings set out by the respective parties, the
following issues were framed by the Trial Court:

i. Whether the plaintiffs are entitled to obtain the decree as prayed for
in the plaint?
ii. Whether the plaintiffs are the legal representatives of the deceased
Rathinam Pillai?
iii. Whether the suit is maintainable?
iv. Whether the Court fee paid by the plaintiffs is correct? and
v. To what relief the plaintiffs are entitled to?

6. In support of the plaintiffs’ case, P.Ws.1 to 4 were examined and Exs.P1
to P17 were marked and on the side of the defendants’ D.Ws.1 and 2 were
examined and Exs.D1 to D13 were marked.

7. On a consideration of the oral and documentary evidence adduced by the
respective parties, the Court below was pleased to dismiss the suit.
Challenging the same, the present appeal has been preferred.

8. Pending first appeal, the appellants have filed M.P.(MD) No.1 of 2011,
under Order XLI Rule 27 C.P.C., for reception of certain documents as
additional evidence in support of their case.
9. The averments contained in the affidavit appended to the said
miscellaneous petition are briefly stated as follows:
9.1. The appellants have preferred the appeal impugning the Judgment and
Decree of the Court below rendered in their suit for partition and separate
possession and according to them, they were unaware of the legal issues
involved in the suit and the school transfer certificate of the first
appellant got misplaced and thereby, she preferred a complaint to the S.I. of
Police, Uthamapalayam Police Station, who issued a non-traceable certificate
to her on 31.07.2011 and they are now able to get the four documents detailed
in the petition being marriage invitation card of the second appellant, birth
certificate of a female child born to Rajammal and Rathinam Pillai on
20.12.1970, school transfer certificate issued to the first appellant by
Mohamed Fathima Girls High School, Uthamapalayam and the certificate issued
by S.I.of Police, Uthamapalayam Police Station, which would clinchingly
establish the appellants / plaintiffs case that they are the legal heirs of
the deceased Rathinam Pillai and hence, according to them, the said documents
should be received as additional documents in this appeal and hence, the
miscellaneous petition.

10. The averments contained in the counter affidavit of the respondents 2 and
3 / defendants 2 and 3 to the said miscellaneous petition are briefly stated
as follows:
10.1. The said miscellaneous petition is not maintainable either in law or on
facts. The documents sought to be produced as additional documents cannot be
received in evidence as such. The alleged birth certificate of the second
appellant / second plaintiff shows that she was born in Madurai. However,
there is no pleading in the plaint that at any point of time, Rajammal and
the deceased Rathinam Pillai were residing in Madurai and further the said
document being obtained during the pendency of the appeal cannot be received
in evidence and it is not admissible in evidence. The marriage invitation
card of the second appellant / second plaintiff is inadmissible as in the
settlement deed marked as Ex.D1, it has been clearly averred by the deceased
Rathinam Pillai that the second plaintiff is the daughter of Rajammal and not
his daughter and hence, the said document is also inadmissible. Further, the
school transfer certificate of the first appellant / first plaintiff shows
the date of birth as 17.03.1962, whereas the school transfer certificate
already produced and marked as Ex.D11 shows her date of birth as 04.05.1962
and the name of her parents as Shanmugavel and Rajammal and further in Column
No.19, it is shown as the first appellant has studied 6th to 8th Standards
during the academic year 1973 ? 1974, which is unbelievable and hence, the
said document is also not genuine and inadmissible in evidence. Further, the
certificate issued by S.I.of Police, Uthamapalayam Police Station, is not
genuine and would not in any manner advance the case of the appellants /
plaintiffs and further inasmuch as the ingredients of Order XLI Rule 27
C.P.C., have not been complied with and the documents sought to be produced
are found to be in contravention of the pleadings and the evidence already
adduced, the above said miscellaneous petition is liable to be dismissed.

11. In addition to the above said miscellaneous petition, the appellants /
plaintiffs have also filed C.M.P.(MD) No.6506 of 2017 under the same
provision of law for reception of the marriage registration certificate of
the first appellant / first plaintiff as an additional document in support of
their case.

 

12. The averments contained in the affidavit appended to the said
miscellaneous petition are briefly stated as follows:
12.1. The petitioners / appellants have laid the first appeal impugning the
Judgment and Decree rendered by the Court below in the suit laid by them for
partition and separate possession. It is stated that the marriage of the
first appellant / first plaintiff was solemnized with P.W.4 at Arulmigu
Meenakshi Sundareswarar Temple, Madurai, on 21.01.1977 and the same was
registered, wherein her father’s name was mentioned as M.R.P.Rathinam Pillai
and the name of the village was mentioned as Uthamapalayam and further, the
deceased Rathinam Pillai had put his signature in the marriage register and
the marriage registration certificate had come to the knowledge of the first
appellant / first plaintiff only recently and obtained the certificate of the
same from the Officer concerned and hence, the said document should be
received in evidence as additional document to substantiate her case and
hence, the petition.

 

13. The averments contained in the counter affidavit of the respondents 2 and
3 / defendants and 3 to the said miscellaneous petition are briefly stated as
follows:
13.1. The miscellaneous petition is not maintainable either in law or on
facts and as per the oral evidence tendered on the side of the plaintiffs,
the marriage of the first appellant / first plaintiff took place at
Thiruparankundram Temple, however, the present additional document sought to
be marked states that her marriage had taken place at Arulmigu Meenakshi
Sundareswarar Temple, Madurai, which goes to show the contradictions in the
case of the plaintiffs and further, the deceased Rathinam Pillai, who is
alleged to have signed in the marriage register for the marriage of the first
appellant / first plaintiff at Meenakshi Amman Temple, Madurai, which took
place on 21.01.1977, but the fact remains that Rathinam Pillai died on
24.11.1976 as averred in Paragraph No.4 of the plaint and hence, the
projected additional document is false and it is a forged document and not
admissible in evidence and further, the ingredients of Order XLI Rule 27 have
not been complied with and hence, the petition is liable to be rejected.

14. The following points arise for consideration in this first appeal:
i. Whether Rajammal is the legally wedded wife of the deceased Rathinam
Pillai?
ii. Whether the appellants / plaintiffs are the legal heirs of the deceased
Rathinam Pillai born to him out of the lawful wedlock with Rajammal?
iii. Whether the appellants / plaintiffs are entitled to claim partition and
separate possession of their respective shares in the suit properties as
claimed in the plaint?
iv. Whether Rajeswari is the legally wedded wife of the deceased Rathinam
Pillai and whether the respondents / defendants are the children of the
deceased Rathinam Pillai?
v. To what relief the appellants / plaintiffs are entitled to? and
vi. Whether the miscellaneous petitions in M.P.(MD) No.1 of 2011 and
C.M.P.(MD) No.6506 of 2017, under Order XLI Rule 27 C.P.C., are entitled for
acceptance?

 

POINT NOS.I TO IV:
15. The plaintiffs have laid the suit claiming partition and separate
possession in the suit properties on the footing that Rathinam Pillai married
their mother Rajammal and out of the said wedlock, they were born and thus,
they are the legal heirs of the deceased Rathinam Pillai, who died on
24.11.1976 and further, it is the case of the plaintiffs that Rathinam Pillai
had married one Rajeswari, who is none other than the daughter of his elder
sister, namely, Sakunthala, as his second wife and out of the said wedlock,
the defendants were born and thus, according to the plaintiffs, they and the
defendants are the children of the deceased Rathinam Pillai and thus, it is
the case of the plaintiffs that they are entitled to their respective shares
in the suit properties as the legal heirs of the deceased Rathinam Pillai and
hence, the suit for the above mentioned reliefs. The plaintiffs have also
taken a plea in the plaint itself that in case the Court holds that Rajammal
is not married to Rathinam Pillai and that she had been kept as the exclusive
mistress of the deceased Rathinam Pillai, the status of the plaintiffs shall
be treated as the illegitimate children of the deceased Rathinam Pillai and
thus, they are entitled to get their respective shares in the suit properties
and accordingly, the relief should be moulded in their favour.

 

16. The defendants have taken a specific defence that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai as projected by the
plaintiffs and at no point of time, Rajammal lived with Rathinam Pillai as
his wife and it is the further case of the defendants that the plaintiffs are
not the children born to Rathinam Pillai through Rajammal and the plaintiffs
are not the legal heirs of the deceased Rathinam Pillai. It is the further
case of the defendants that the deceased Rathinam Pillai married only
Rajeswari during his lifetime and out of the said wedlock, the defendants
were born to him and Rajeswari and thus, it is contended that it is only the
defendants, who are the legal heirs of the deceased Rathinam Pillai and
therefore, the plaintiffs cannot lay any claim or share in the suit
properties.

17. It is not in dispute that the suit properties belonged to the deceased
Rathinam Pillai. Originally, when the suit had come to be laid, the second
plaintiff, being a minor, it is found that Rajammal was shown as the mother
and guardian of the minor second plaintiff. It is therefore found that on
the date of laying of the suit, Rajammal was alive. Therefore, the immediate
question that arises for consideration is, if according to the plaintiffs
Rajammal is the legally wedded wife of the deceased Rathinam Pillai, then she
would also be entitled to claim her due share in the suit properties left
behind by the deceased Rathinam Pillai. However, it is found that only the
plaintiffs have chosen to lay the suit for partition and separate possession
leaving their mother away. This itself raises a suspicion as to whether
Rajammal is the legally wedded wife of the deceased Rathinam Pillai.

18. Be that as it may, though the plaintiffs in the plaint would claim that
the deceased Rathinam Pillai had married Rajammal, as put forth by the
defendants, it is strange that the plaintiffs have not whispered anything in
the plaint averments as to when the marriage between Rathinam Pillai and
Rajammal had taken place, the venue of the marriage and the persons, who had
attended the marriage etc. All that has been stated in the plaint is that
Rajammal was taken as the wife of Rathinam Pillai and through Rajammal, the
plaintiffs were born. As adverted above, the defendants have taken a
specific plea in the written statement that Rajammal is not the legally
wedded wife of the deceased Rathinam Pillai and that no marriage took place
between Rathinam Pillai and Rajammal as per law and further, they have also
taken a specific plea that the plaintiffs were not born to the deceased
Rathinam Pillai and Rajammal and hence, the plaintiffs are not the legal
heirs of the deceased Rathinam Pillai. Such being the defence projected by
the defendants, it could be seen, as rightly argued by the learned counsel
for the defendants 2 and 3, that the best person, who could throw light on
the factum of the marriage between Rathinam Pillai and Rajammal, would be
only Rajammal. If according to the plaintiffs Rajammal was the legally
wedded wife of the deceased Rathinam Pillai and if she is his first wife as
pleaded in the plaint, the defendants having repudiated the same in black and
white, it is for the plaintiffs to examine their mother Rajammal to establish
their case, but peculiarly, they have not chosen to examine Rajammal to
substantiate their case. This would only go to show as rightly determined by
the Court below that inasmuch as the plaintiffs’ case that Rajammal married
Rathinam Pillai is not true and the plaintiffs were not born to Rathinam
Pillai through Rajammal, it is found that the plaintiffs though were in
possession of the best evidence, did not evince any interest to project the
same for the reasons best known to them. This further raises a strong
suspicion in the case projected by the plaintiffs.

19. The plaintiffs, in order to establish the factum of marriage between
Rajammal and the deceased Rathinam Pillai, have adduced oral evidence through
P.Ws.1 to 4. P.W.1 is the first plaintiff and as seen from the evidence
tendered by her during both chief as well as the cross-examination, as
rightly found the Court below, admittedly her evidence regarding the factum
of the marriage of Rajammal and Rathinam Pillai being only a hearsay evidence
and when further according to P.W.1, she had derived the knowledge of the
same only through her mother Rajammal, it is rightly held by the Court below,
the evidence of P.W.1 would not in any manner serve the case of the
plaintiffs. Therefore, it is found that the evidence of P.W.1 cannot be
taken into consideration for upholding the plaintiffs’ case.

20. The next witness P.W.2 ? Rajangam would claim to have attended the
wedding reception of the marriage between Rajammal and Rathinam Pillai at
Uthamapalayam. It is, therefore, found that he had not attended the alleged
marriage between Rajammal and Rathinam Pillai. According to P.W.2, as seen
from his evidence that the marriage between Rajammal and Rathinam Pillai took
place during 1959 or 1960. However, based upon the above said oral evidence
of P.W.2, as rightly held by the Court below, we cannot safely conclude that
a valid marriage had taken place between Rajammal and Rathinam Pillai as
deposed by P.W.2 when the fact remains that he has not witnessed the
marriage. That apart, it is also found that P.W.2 was under the employment
of P.W.4 ? Manikandan, who is none other than the husband of P.W.1.
Therefore, it could be seen that the evidence of P.W.2 has to be accepted
only with the pinch of salt and cannot be relied upon straightaway to accept
the case of the plaintiffs.

 

21. P.W.3 ? Munusamy has also admitted that he has only heard about the
marriage, which took place between Rajammal and Rathinam Pillai. However,
according to him, he had attended the wedding reception, which took place at
the Karnam house at Uthamapalayam and on the basis of the above piece of
evidence, the plaintiffs have endeavoured to establish the factum of marriage
between Rajammal and the deceased Rathinam Pillai. However, as rightly found
by the Court below, his evidence cannot also be accepted as the same being in
the nature of the hearsay evidence. Further, P.W.3 has also admitted that he
is cultivating the lands of P.W.4 ? Manikandan on othi basis. Therefore, it
is found that P.W.3 is also an interested evidence and his evidence, without
any basis or material, cannot be relied upon to accept the plaintiffs’ case.

22. From the evidence of P.Ws.2 and 3, it is found that the plaintiffs’ case
is that the wedding reception of Rajammal and Rathinam Pillai took place at
the Karnam house, Uthamapalayam. As seen earlier, according to them, the
marriage took place during 1959 or 1960. In this connection, Manikandan, who
is the husband of P.W.1 and examined as P.W.4, has deposed that the marriage
between Rajammal and Rathinam Pillai took place at Srivilliputtur Krishnan
Temple in 1959 and further he has clearly admitted that Rathinam Pillai
married Rajarajeswari on 08.02.1962 and the marriage invitation card
pertaining to the said marriage is Ex.D6 and further, he has also admitted
that on the previous day i.e., on 07.02.1962, reception was held and the
above said function was conducted in Karnam house at Uthamapalayam. A
perusal of Ex.D6 coupled with the admission of P.W.4 would go to show that on
08.02.1962, the marriage between Rathinam Pillai and Rajarajeswari took place
in the newly constructed house of Rathinam Pillai at Uthamapalayam and it is
also found that on the same date, the housewarming ceremony of the newly
constructed house was also celebrated and in such view of the matter, when
the housewarming ceremony of the newly constructed house i.e., Karnam’s house
at Uthamapalayam was celebrated only on 08.02.1962 along with the marriage of
Rathinam Pillai and Rajarajeswari, the case of the plaintiffs as spoken to
through P.Ws.2 and 3 that the wedding reception of Rathinam Pillai and
Rajammal took place in Karnam house at Uthamapalayam cannot be believed as
the Karnam house had been completely constructed only on 08.02.1962.
Therefore, the above aspect of the matter also throws a serious doubt in the
case projected by the plaintiffs that Rajammal had been taken as the wife of
Rathinam Pillai through a lawful wedlock. It is not out of place to mention
here that P.W.4 is none other than the brother of Rajarajeswari and
therefore, as rightly found by the Court below, P.W.4 is competent to depose
about the marriage of his sister Rajarajeswari with Rathinam Pillai and
therefore, it is found that through the evidence of P.W.4 and the document
marked as Ex.D6 i.e., wedding invitation card, the lawful marriage between
Rajarajeswari and Rathinam Pillai had been duly established. As regards the
evidence of P.W.4 with reference to the alleged marriage between Rajammal and
the deceased Rathinam Pillai, it could be seen that he is also not in the
know of things directly and in such view of the matter, his evidence cannot
also be relied upon to hold that there has been a valid marriage between
Rajammal and Rathinam Pillai.

23. In the light of the above said discussions, it is found that the case of
the plaintiffs that Rathinam Pillai had taken Rajammal as his first wife and
only thereafter, he married Rajeswari as the second wife is not true. On the
other hand, the oral evidence tendered by the plaintiffs to establish the
alleged marriage between Rajammal and the deceased Rathinam Pillai being of
the above nature, which could not be safely relied upon for the reasons
afore-stated and when there is no convincing material to hold that there has
been a valid lawful marriage between Rajammal and the deceased Rathinam
Pillai, it is found that the case of the plaintiffs as regards the above fact
cannot be upheld, particularly, solely based on the oral evidence of P.Ws.1
to 4.

 

24. The defendants have examined Rathinam Pillai’s sister, namely,
Palaniammal as D.W.1. As rightly found by the Trial Court, D.W.1 being the
eldest person in the family, would be in the know of things about the marital
status of Rathinam Pillai, he being her brother, it is found that the
evidence of D.W.1 requires consideration in this matter. As seen from the
evidence of D.W.1, it is found that Rajammal and her husband, namely,
Shanmugavel were in the employment at the house of Rathinam Pillai and in
such circumstances, according to D.W.1, there has been an illegitimate
relationship between Rajammal and Rathinam Pillai and as the said issue had
cropped up at one point of time, according to D.W.1, Rajammal was taken by
her husband to her native place at Rajapalayam and therefore, it is found
from the evidence of D.W.1 that there has been some illegitimate connection
or relationship between Rajammal and Rathinam Pillai at that point of time
and the same had not developed into any valid marriage as such between them
and it is further found that Rajammal even at that point of time was married
to one Shanmugavel. Therefore, it is found that Rajammal being the legally
wedded wife of Shanmugavel and when it is further found that the plaintiffs
have miserably failed to establish the factum of marriage between Rajammal
and Rathinam Pillai as projected by them and when it is found that Rathinam
Pillai was having only illicit relationship with Rajammal, it is seen that
Rajammal at no point of time has been taken or treated as the wife of
Rathinam Pillai either by Rathinam Pillai or by the Society at large.
25. In this lis, the letters said to have been sent by Rajammal to Rathinam
Pillai have been marked as Exs.D8 to D10 and that the said letters are
written only by Rajammal has been admitted and her signatures in the said
letters had come to be marked as Exs.D3 to D5. Therefore, the Court below
has taken into consideration the contents of the above said letters to assess
the merits of the case at hand. It is not the case of the plaintiffs that
the above said letters have not been written by Rajammal. Further, to
controvert that the above said letters have not been written by Rajammal, the
plaintiffs have not chosen to examine their mother Rajammal with reference to
the same. Therefore, no fault could be attributed on the part of the Court
for relying upon the contents of the above said letters for determining the
issues involved in the matter. It is found from Ex.D8 that there is a clear
reference by Rajammal herself that her husband is only Shanmugavel and such
being the position, the case of the plaintiffs that Rajammal had married
Rathinam Pillai as such cannot be accepted in any manner. Further, as seen
from the contents of Ex.D10, it is found that only the illicit relationship
of Rajammal with Rathinam Pillai was adverted to and the said letter, dated
03.04.1963, would only probablize the case as spoken to by D.W.1 that during
the stay of Rajammal at Rathinam Pillai’s house, when she was in employment,
there has been some illicit relationship between them and therefore, it is
found that the same had been adverted to by Rajammal in Ex.D10. Therefore,
the contents of Ex.D10 would also only improbablize the case of the
plaintiffs that she is the legally wedded wife of the deceased Rathinam
Pillai. That apart, the contents of Ex.D9 would go to show that following
the estrangement between the couples i.e., Rajammal and Shanmugavel, it is
found that Shanmugavel and his family members demanded the custody of the
first plaintiff from Rajammal and she had refused to accede to the request
stating that she cannot handover the custody of the first plaintiff, she
being the girl baby. From the contents of Ex.D9, it is found that the demand
for the custody of the first plaintiff was made by Shanmugavel and his family
members on the footing that the first plaintiff was born to Shanmugavel
through Rajammal. This piece of evidence would only go to show that inasmuch
as Rajammal was the wife of Shanmugavel and the first plaintiff was born to
them through the said wedlock, it is found that Shanmugavel as a matter of
right demanded the custody of the first plaintiff following the difference of
opinion between them. Therefore, the contents found in Exs.D8 to D10, which
had not been repudiated by Rajammal or by the plaintiffs as the case may be,
only go to establish the falsity of the plaintiffs’ case that Rathinam Pillai
had married Rajammal and taken her as his wife and that the plaintiffs are
the children born to Rathinam Pillai through Rajammal.

26. In addition to that it is found that Rathinam Pillai had executed a
settlement deed in favour of Rajammal, which has come to be marked as Ex.D1
and on a perusal of the same, would only go to show that therein Rathinam
Pillai has only described Rajammal as his ?mgpkhd!;jphp? and not his wife as
such and further, he has described the plaintiffs in the said settlement deed
as only the daughters of Rajammal and not as his daughters. This also would
only strengthen the defence version put forth by the defendants that Rathinam
Pillai had never taken Rajammal as his wife at any point of time and further,
inasmuch as the plaintiffs were not born to Rathinam Pillai through Rajammal,
he has described the plaintiffs as the daughters of Rajammal and not as his
daughters. The above said averments contained in Ex.D1 cannot be repudiated
by the plaintiffs inasmuch as the plaintiffs thereafter along with their
mother had alienated the subject property under Ex.D2 and therefore, it is
found that through Ex.D1, the defendants have exposed the falsity of the
plaintiffs’ case. That apart, on the same date of Ex.D1, Rathinam Pillai had
executed settlement deeds marked as Exs.D12 and D13 in favour of
Rajarajeswari and her children, namely, defendants, wherein he has clearly
described Rajarajeswari as his wife and the defendants as his children and
therefore, Rathinam Pillai being fully aware about the status of
Rajarajeswari and the defendants born to him through her has clearly spelt
out the said relationship in the above said documents and accordingly, he
also being aware of the status of Rajammal has clearly described her as his
?mgpkhd!;jphp? in Ex.D1. Therefore, the above documents marked as Exs.D1,
D12 and D13 cumulatively would only go to establish that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai and that the plaintiffs
were not born to the deceased Rathinam Pillai through Rajammal.

27. The marriage between Rajammal and Shanmugavel having come to be
established or in other words, Rajammal being the wife of Shanmugavel, which
fact having been admitted by Rajammal herself in Ex.D8 and when the said
marriage has not been annulled in the manner known to law, it is found that
as rightly determined by the Court below and also invoking Section 112 of the
Indian Evidence Act, inasmuch as it is only Rajammal and Shanmugavel, who had
been having access to each other during the continuance of their marriage, it
is found that even the second plaintiff born to Rajammal is only an offspring
through Shanmugavel and therefore, it cannot be held that the second
plaintiff was born to Rajammal through Rathinam Pillai without any basis or
material.

28. However, the plaintiffs have projected the transfer certificate of the
second plaintiff as Ex.P2 to show that Rathinam Pillai was the father of the
second plaintiff. However, a perusal of Ex.P2 would only go to show that the
second plaintiff therein has been described as Maheswari.R, thereby alone it
cannot be construed that the initial ?R? stands for Rathinam Pillai without
any material or hold. As rightly found by the Court below, ?R? may also
denote her mother Rajammal and therefore, by Ex.P2 alone it cannot be
construed that there bas been a valid marriage between Rajammal and Rathinam
Pillai as put forth by the plaintiffs and that the second plaintiff Maheswari
was born to Rathinam Pillai through Rajammal. Therefore, Ex.P2 would not in
any manner support of the plaintiffs’ case. The marriage invitation card of
the first plaintiff with P.W.4 has been marked as Ex.P3 and this document is
relied upon by the plaintiffs on the footing that in the same, the deceased
Rathinam Pillai has been shown as the father of the first plaintiff. As
rightly found by the Court below, the said invitation card has come be
printed after the death of Rathinam Pillai and it has not been established as
to who had been instrumental in bringing the above said printing card.
Therefore, the mere reference of Rathinam Pillai as the father of the first
plaintiff in the invitation card marked as Ex.P3 after his death alone would
not in any manner lead to the conclusion that Rajammal had been taken as the
lawful wedded wife by the Rathinam Pillai and that the first plaintiff was
born out of the said wedlock. On the other hand, when it is found that
Shanmugavel is the husband of Rajammal and when it is not clear on what basis
the above said description had come to be incorporated in the invitation
card, it is found that the same cannot be the deciding factor for upholding
the plaintiffs’ case.

29. The other document on which the plaintiffs have placed reliance is Ex.P8,
which is the proposal given to the Insurance Corporation by Rathinam Pillai
in respect of the first plaintiff. Merely on the basis of the same, when it
has not been established that the contents found in the same are mooted by
Rathinam Pillai and further when any further action has been initiated
thereupon, as rightly determined by the Court below, the same having not been
established to have emanated from deceased Rathinam Pillai, in my opinion,
the said document cannot be considered as a valid piece of evidence to accept
the plaintiffs’ case.

30. On the other hand, it is seen from Ex.D11, the birth certificate of the
first plaintiff, which document is not in dispute, it is found that the first
plaintiff is stated to have been born on 03.05.1962 at Uthamapalayam South
Street and the name of the parents of the first plaintiff has been clearly
stated as Shanmugavel and Rajammal. Therefore, when it is found from Ex.D11
that the first plaintiff is shown to have been born only to Shanmugavel and
Rajammal, the whole case of the plaintiffs get belied on the above said
document also and therefore, the reference about Rathinam Pillai as the
father of the first plaintiff in Exs.P3 and P8 could not in any manner be
believed and equally, the reference of the second plaintiff as R.Maheswari in
Ex.P2 also would not serve any purpose to establish the plaintiffs’ case.
Coupled with the facts that as discussed above, when Rajammal herself has
admitted that she is only the wife of Shanmugavel as seen from Ex.P8 and also
refused to handover the custody of the first plaintiff to Shanmugavel as
being the female daughter and when Rathinam Pillai himself has described
Rajammal only as his ?mgpkhd!;jphp? and the plaintiffs as the daughters of
Rajammal in Ex.D1, all these facts cumulatively would only go to establish
that there has been no marriage at all muchless a valid marriage between
Rajammal and the deceased Rathinam Pillai and consequently, it is found that
the plaintiffs are not the children born to Rathinam Pillai through Rajammal
out of the said wedlock.

31. In support of his contentions, the learned counsel for the plaintiffs
placed reliance upon the decisions reported in 2004-TLNJ-383 [V.V.Kannan and
another vs. K.Sridhar], 2008 (3) LW 471 [Chandrammal and others vs. S.Sankar
(died) and others], 2009 (3) CTC 760 [Balamani and another vs.
S.Balasundaram], 2009 (4) CTC 440 [K.V.Ramasamy vs. K.V.Raghavan and others],
2009 (9) SCC 52 [R.Mahalakshmi vs. A.V.Anantharaman and others] and 2010 (2)
CTC 622 [Kuppan vs. Muniammal and another]. Similarly, the learned counsel
for the defendants 2 and 3 placed reliance upon the decisions reported in
2008(1) MLJ 1253 (SC) [K.R.Mohan Reddy vs. Net Work INC.], 2017 (1) MWN(C)
225 [S.K.P.Subramaniam and another vs. S.K.Chinnarsaj (Deceased) and others],
2015 (4) LW 509 [Baby @ Rohini (Deceased) and others vs. Kamalam Kumerasan
and others], 1995 (1) LW 487 [K.Munuswami Gounder and another vs.
M.Govindaraju and others] and 1989 (2) LW 197 (DB) [Mohan and another vs.
Santha Bai Ammal and others]. The principles of the law outlined in the
above said decisions are taken into consideration and followed as applicable
to the facts and circumstances of the case at hand.

32. Considering the fact that the plaintiffs have miserably failed to
establish that there has been a valid marriage between Rajammal and Rathinam
Pillai and that the plaintiffs have been born out of the said wedlock or even
born to him through Rajammal illegally, it is found that the plaintiffs as
such are not entitled to claim any share in the suit properties even on the
footing that they are the illegitimate children of Rathinam Pillai and
accordingly, it is found that the plaintiffs are not entitled to invoke
Section 16(1) of the Hindu Marriage Act for claiming the limited reliefs as
prayed for in the plaint.

33. In the light of the above discussions, I hold that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai, I further hold that the
plaintiffs are not the children of the deceased Rathinam Pillai.
Consequently, I hold that the plaintiffs are not entitled to claim any
partition and separate possession of their respective shares in the suit
properties as prayed for. I further hold that Rajeswari is the legally
wedded wife of the deceased Rathinam Pillai and the defendants are the
children of the deceased Rathinam Pillai. Accordingly, Point Nos.I to IV are
answered against the plaintiffs and in favour of the defendants.

POINT NO.VI:
34. During the appeal proceedings, the plaintiffs have chosen to file two
miscellaneous petitions for the reception of additional evidence, under Order
XLI Rule 27 C.P.C., in order to substantiate their case. Under M.P.(MD) No.1
of 2011, they seek to produce four documents as additional evidence. As
regards the first document, namely, marriage invitation of the second
plaintiff dated 15.12.1985, as rightly argued by the learned counsel for the
defendants 2 and 3, the said document / invitation card has come into
existence after the death of Rathinam Pillai and therefore, it could be seen
that Rathinam Pillai cannot be construed as the author of the said document.
That apart when Rathinam Pillai has described the plaintiffs as the daughters
of Rajammal in Ex.D1, it is found that the above said document would not in
any manner advance the case of the plaintiffs and that apart no valid reason
has been adduced by the plaintiffs as to why they have not chosen to mark the
said document before the Court below.

35. The second document, namely, birth certificate, dated 28.07.2011, which
according to the plaintiffs would show that Rathinam Pillai was the father of
the female child mentioned therein through Rajammal, has come to be issued by
Madurai Corporation and when there is no plea in the plaint that at that
point of time, Rajammal was living as the wedded wife of Rathinam Pillai at
Madurai and on the other hand, when the evidence disclose as pointed out
earlier that Rajammal was the wife of Shanmugavel, it is found that the above
said document / birth certificate would also not in any manner be helpful to
sustain the case of the plaintiffs.

36. The third document, namely, the school transfer certificate projected by
the plaintiffs would only go to show that the date of birth of the first
plaintiff is 17.03.1962, whereas her birth certificate had also been marked
as Ex.D11, wherein her date of birth is shown as 04.05.1962 and her parents
are described as Shanmugavel and Rajammal. On the other hand, the projected
document shows that her date of birth is 17.03.1962 and described her father
as P.Rathinam and further it is also mentioned that during one academic year,
the first plaintiff had studied Standards VI to VIII. This also is found to
be against the pleadings already set out in the plaint and evidence of the
parties and hence, the same cannot be countenanced and no explanation
whatsoever is placed as to why the said document has not been marked in the
Court below.

37. The fourth document, namely, the certificate issued by the Police
Department regarding loss of transfer certificate. However, as rightly
argued by the learned counsel for the defendants 2 and 3, the said document
not shown to be established by the due authority as per law, by producing the
other connected documents, it is found that the said document also cannot be
accepted as additional document in support of the plaintiffs’ case.

38. Through C.M.P.No.6506 of 2017, the plaintiffs are endeavouring to mark
the marriage certificate of the first plaintiff and P.W.4, which would only
go to that the marriage had taken place at Meenakshi Amman Temple, Madurai.
But, in the evidence deposed in the matter, the marriage is said to have been
taken place at Thirupparankundram Temple and therefore, on the face of it,
the said projected document is found to be unacceptable. That apart, when it
has been admitted in black and white in the plaint that Rathinam Pillai had
died on 24.11.1976, the case of the plaintiffs that Rathinam Pillai had
signed in the marriage register of the first plaintiff, which took place on
21.01.1977 also would expose the falsity of the document and therefore, as
rightly put forth by the learned counsel for the defendants 2 and 3, the said
document also does not merit acceptance for reception of the same as
additional evidence.

39. The above documents sought to be produced as additional evidence during
the course of this appeal are not marked during the original suit
proceedings. It has not been explained by the plaintiff properly as to why
the said documents had not been marked before the Court below. The case of
the plaintiffs that they had come to know about the said documents only
recently as such cannot be straightaway accepted. When the case of the
plaintiffs has been stoutly resisted by the defendants in all aspects, the
plaintiffs knowing about their status even at that point of time should have
endeavoured to mark all the documents in support of their case before the
Court below. On the other hand, failing to do and subsequently when their
case has been thrown out by the Trial Court and the plaintiffs now coming
forward with the plea that only recently they had come to know of the above
said documents and therefore, the same should be received as additional
evidence, cannot be accepted without any material to substantiate their case.
That apart, as rightly argued by the learned counsel for the defendants 2 and
3, when the above said documents are not referred to in the plaint and
further also not disclosed during the course of evidence tendered by the
plaintiffs one way or the other and on the other hand, when the documents
projected are found to be inconsistent with the pleadings set out in the
plaint and also the evidence adduced in the matter and further, when it is
found that the above said petitions for the reception of the additional
evidence also do not comply with the ingredients of Order XLI Rule 27 C.P.C.,
as rightly put forth by the learned counsel for the defendants 2 and 3, the
above said petitions preferred for the reception of the additional evidence
cannot be accepted and hence, they are dismissed. Accordingly, Point No.VI
is answered.

POINT NO.V:
40. In conclusion,
i. The Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of 1985,
on the file of the Sub Court, Periyakulam, are confirmed and resultantly, the
first appeal is dismissed with costs;
ii. M.P.(MD) No.1 of 2011 and C.M.P.(MD) No.6506 of 2017 are also
dismissed; and

iii. Consequently, the other connected M.P.(MD) No.1 of 2013 is closed.

 

To:
The Sub Judge,
Periyakulam.

 

 

.

Posted in Uncategorized

Apex court – A preliminary decree once passed could not be set aside unless and until the appeal was filed. Mere allowing an impleading petition, and that too during the final decree proceedings, would not entitle respondent No.4 to plead that the preliminary decree has to be reopened.; Unless in a case of subsequent event or change of law , Preliminary Decree can not be reopened = In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit. Accordingly, we restore the order passed by the Civil Judge and set aside the order passed by the High Court in the revision petition. The appeals are allowed to the aforesaid extent. It is made clear that we have not adjudicated on the rights of Nima Kaur while deciding this matter and we have prima facie made the observations to decide whether any share she could claim in the final decree proceedings. Therefore, fresh suit, if any, to be filed by her, be decided unfettered by any observations made by us in the order or in the final decree.

 

1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).319-320 OF 2009
SARDAR SURJEET SINGH Appellant(s)
VERSUS
JUGUNA BAI (SINCE DEAD) & ORS. Respondent(s)
O R D E R
1. Heard the learned counsel for the parties.
2. These appeals have been preferred against the judgment
and order dated 30.11.2007 passed by the High Court of Andhra
Pradesh in Civil Revision Petition Nos.3914 and 3144 of
2007, whereby the High Court allowed the impleadment of
respondent No.3 in the final decree proceedings on the basis
of deed of settlement dated 30.12.1978.
3. The facts indicate that defendant Nos.2 and 3 are
sisters. Late Sardar Santh Singh, with the consent of his
wives, adopted the appellant herein-Sardar Surjeet Singh,
when he was three years old. After the adoption, Smt. Juguna
Bai gave birth to one daughter-Sathnam Kaur, defendant No.3.
Later on, one adoption deed was executed on 7.7.1978.
4. A suit for partition was filed in which the Trial
Court passed a preliminary decree on 11.10.1990 giving 1/3rd
share to the appellant, 1/3rd share to be shared between two
wives-Rama Bai and Juguna Bai, with 1/6th share each and
2
remaining 1/3rd to Sathnam Kaur-daughter.
5. The appeal against the final decree was ultimately
withdrawn by the plaintiff after the death of Rama Bai,
during the pendency of the appeal. Thereafter, an application
was filed in the year 1993 for passing of the final decree.
Nima Kaur, the foster daughter of Sardar Santh Singh, filed
I.A. No.1491 of 1993 under Order 1 Rule 10 CPC for impleading
her as defendant No.4, claiming herself to be foster daughter
of Sardar Santh Singh and, in view of the settlement deed
dated 30.12.1978, she claimed 1/3rd share.
6. The appellant resisted the application. It was
contended that she was not having any right as the
preliminary decree, which had been passed in civil suit, had
attained finality. The existence of the settlement deed dated
30.12.1978 was denied. On 12.7.1996, the Civil Judge
dismissed the application filed by Nima Kaur. She preferred
a revision in the High Court in C.R.P.No.3124 of 1996, to be
impleaded as defendant No.4 in the Suit being O.S. No.54/81,
which was allowed vide order dated 28.7.1997.
7. The Trial Judge, by a docket order dated 26.11.2002,
directed the plaintiff to carry out the amendment and ordered
that the final decree proceedings be closed. Against the
said order, C.R.P.No.6088/2002 in O.S.No.54/81 and C.R.P.
No.620/2003 in I.A.No.697/93 in O.S.No.54/81 were filed
before the High Court.
8. The High Court allowed both the CRPs and directed the
3
Trial Court to proceed with the final decree proceedings only
and dispose of the same in accordance with law. The High
Court opined that it was evident that admittedly no challenge
was made as against the preliminary decree by respondent
No.4, the preliminary decree passed on 11.10.1990 had become
final and even the appeal filed by the plaintiff had been
dismissed on 6.4.1993 confirming the said decree. A
preliminary decree once passed could not be set aside unless
and until the appeal was filed. Mere allowing an impleading
petition, and that too during the final decree proceedings,
would not entitle respondent No.4 to plead that the
preliminary decree has to be reopened. Vide order dated
8.12.2003, the High Court opined that if at all respondent
No.4 has any say, within legal parameter, the same is open to
her to be agitated.
9. Nima Kaur thereafter, filed an application being
I.A.No.1258 of 2004 in I.A.No.697/93 in O.S.No.54/81 to
receive a document dated 12.8.1979 purported to be a
relinquishment deed but the said application was rejected by
the Civil Judge vide order dated 8.12.2004. Aggrieved
thereby, C.R.P. No.86/05 was preferred by Nima Kaur, which
was dismissed by the High Court. The High Court observed that
these rights have to be considered by the executing court, if
any, during final decree proceedings.
10. On 5.2.2007, the Civil Judge passed the final decree
allotting half share to the appellant, 1/6th share to Juguna
4
Bai and 1/3rd share to Satnam Kaur. It was also held by the
said Court that Nima Kaur was not entitled for any share in
the suit property and her remedy was to file a separate suit.
It would not be possible for the Court to determine her
share in the final decree proceedings on the basis of the
deed dated 30.12.1978. Aggrieved thereby, Juguna Bai and
Satnam Kaur filed C.R.P.No.3914/07 and Nima Kaur filed C.R.P.
No.3114/07. The High Court vide impugned order dated
30.11.2007 directed the Trial Court to examine the claim of
Nima Kaur independently so that she would be able to
establish her claim over the property left by Sant Singh.
preliminary decree shall be modified to the extent needed and
shall also decide as to who succeeded to the estate of the
deceased and re-determine the shares accordingly. The said
order has been questioned before us in this appeal.
11. It was submitted by the learned counsel appearing on
behalf of the appellant that once a preliminary decree has
been passed, determining the shares, during the final decree
proceedings, the shares could not have been altered as has
been ordered by the High Court. Preliminary decree had
attained finality. It was not an intervening event which has
taken place after passing of the preliminary decree and
before passing the final decree which can only be taken into
consideration for redeterrmining of shares. The only remedy
available to workout any right, if at all available to Nima
Kaur, was to file an independent suit to establish her
5
right, title or interest on the basis of deed dated
13.10.1978 or relinquishment deed of 1979 and not by way of
filing application in a final decree proceedings to get rid
of the preliminary decree, which has attained finality.
12. Learned counsel further submitted that Nima Kaur
otherwise would not have any right, title or other interest
in the property left by the deceased. Document itself was
doubtful. Thus, the High Court has erred in violating its
own earlier order laying down that preliminary decree would
not be reopened. The High Court has ordered reopening of
the preliminary decree which was not permissible.
13. Learned counsel appearing on behalf of the respondent
has strenuously urged that during the final decree
proceedings, the extent of the share to be allotted to each
of the respondent parties can be worked out. Once the gift
deed has been executed, in the form of settlement deed in
favour of respondent No.3 – Nima Kaur, she was entitled to
press her claim for settlement of the said property during
the final decree proceedings. To that extent, the shares of
other members were rightly required to be reduced. Learned
counsel has relied upon various decisions of this Court to be
referred later.
14. After hearing the learned counsel for the parties, we
are of the opinion that the question whether preliminary
decree can be reopened, has been considered by this Court
in T. Ravi V. B Chinna Narasimha [2017(3) SCALE 740], in
6
which reliance has been placed on Venkata Reddy & Ors. v.
Pethi Reddy {AIR 1963 SC 992] and in view of section 97 of
CPC it has been laid down that once the matter has been
considered in preliminary decree, it cannot be reagitated in
the appeal against the final decree. Preliminary decree is
final with respect to the shares. In T. Ravi V. B Chinna
Narasimha this Court held as under:
“37. In the instant case preliminary decree was
passed in the year 1970 and the shares were
declared to the aforesaid extent of the
respective parties therein who were the heirs of
Late Nawab Jung. Hamid Ali Khan, defendant No.1,
had only 14/104th share in the disputed property.
Preliminary decree dated 24.11.1970 has attained
finality which was questioned in appeal on
limited extent in the High Court which has
attained finality by dismissal of LPA on
12.10.1977. Thus the determination of shares as
per preliminary decree has attained finality,
shares of the parties had been crystalised in
each and every property. Purchaser pendente lite
is bound by the preliminary decree with respect
to the shares so determined and it cannot be
re-opened and whatever equity could have bee
claimed in the final decree proceedings to the
extent of vendor’s share has already been
extended to the purchasers.
38. In Venkata Reddy & Ors. v. Pethi Reddy AIR
1963 SC 992, it has been laid down that the
preliminary decree for partition is final. It
also embodies the final decision of the Court.
The question of finality has been discussed thus
:
“6. The new provision makes it clear that
the law is and has always been that upon the
father’s insolvency his disposing power over
the interest of his undivided sons in the
joint family property vests in the Official
Receiver and that consequently the latter
7
has a right to sell that interest. The
provision is thus declaratory of the law and
was intended to apply to all cases except
those covered by the two provisos. We are
concerned here only with the first proviso.
This proviso excepts from the operation of
the Act a transaction such as a sale by an
Official Receiver which has been the subject
of a final decision by a competent Court.
The short question, therefore, is whether
the preliminary decree for partition passed
in this case which was affirmed finally in
second appeal by the High Court of Madras
can be regarded as a final decision. The
competence of the Court is not in question
here. What is, however, contended is that
in a partition suit the only decision which
ca be said to be a final decision is the
final decree passed in the case and that
since final decree proceedings were still
going on when the Amending Act came into
force the first proviso was not available to
the appellants. It is contended on behalf
of the appellants that since the rights of
the parties are adjudicated upon by the
Court before a preliminary decree is passed
that decree must, in so far as rights
adjudicated upon are concerned, be deemed to
be a final decision. The word ‘decision’
even in its popular sense means a concluded
opinion (see Stroud’s Judicial Dictionary –
3
rd ed. Vol. I, p. 743). Where, therefore,
the decision is embodied in the judgment
which is followed by a decree finality must
naturally attach itself to it in the sense
that it is o longer open to question by
either party except in an appeal, review or
revision petition as provided for by law.
The High Court has, however, observed :
“The mere declaration of the
rights of the plaintiff by the
preliminary decree, would, in our
opinion not amount to a final
decision for it is well known that
even if a preliminary decree is
passed either in a mortgage suit or
in a partition suit, there are
certain contingencies in which such
a preliminary decree can be modified
or amended and therefore would not
8
become final.”
It is not clear from the judgment what the
contingencies referred to by the High Court are
in which a preliminary decree can be modified or
amended unless what the learned Judges meant was
modified or amended in appeal or in review or in
revision or in exceptional circumstances by
resorting to the powers conferred by Sections 151
and 152 of the Code of Civil Procedure. If that
is what the High Court meant then every decree
passed by a Court including decrees passed in
cases which do not contemplate making of a
preliminary decree are liable to be modified and
amended. Therefore, if the reason given by the
High Court is accepted it would mean that no
finality attaches to decree at all. That is not
the law. A decision is said to be final when, so
far as the Court rendering it is concerned, it is
unalterable except by resort to such provisions
of the Code of Civil Procedure as permit its
reversal, modification or amendment. Similarly,
a final decision would mean a decision which
would operate as res judicata between the parties
if it is not sought to be modified or reversed by
preferring an appeal or a revision or a review
application as is permitted by the Code. A
preliminary decree passed, whether it is in a
mortgage suit or a partition suit, is not a
tentative decree but must, in so far as the
matters dealt with by it are concerned, be
regarded as conclusive. No doubt, in suits which
contemplate the making of two decrees – a
preliminary decree and a final decree – the
decree which would be executable would be the
final decree. But the finality of a decree or a
decision does not necessarily depend upon its
being executable. The legislature in its wisdom
has thought that suits of certain types should be
decided in stages and though the suit in such
cases can be regarded as fully and completely
decided only after a final decree is made the
decision of the Court arrived at the earlier
stage also has a finality attached to it. It
would be relevant to refer to S.97 of the Code of
Civil Procedure which provides that where a party
aggrieved by a preliminary decree does not appeal
from it, he is precluded from disputing its
correctness in any appeal which may be preferred
from the final decree. This provision thus
clearly indicates that as to the matters covered
9
by it, a preliminary decree is regarded as
embodying the final decision of the Court passing
that decree.”
15. In the case of Phoolchand and Anr. vs. Gopal Lal, AIR
1967 SC 1470, this Court has laid down that there can be
variation in shares in the preliminary decree. Variation itself
is a Decree. In a case for partition, if any event transpires
after preliminary decree, which necessitates the change in
shares, same can be considered. This Court laid down thus :
“6. The next contention is that there
cannot be two preliminary decrees and
therefore when the trial court varied the
shares as indicated in the preliminary
decree of August 1, 1942 there was no fresh
preliminary decree passed by the trial
court. It is not disputed that in a
partition suit the court has jurisdiction
to amend the shares suitably even if the
preliminary decree has been passed if some
member of the family to whom an allotment
was made in the preliminary decree dies
thereafter : (Parshuram v. Hirabai “AIR
1957 Bom 59′). So the trial court was
justified in amending the shares on the
deaths of Sohan Lal and Smt. Gulab Bai. The
only question then is whether this
amendment amounted to a fresh decree. The
Allahabad High Court in Bharat Indo v.
Yakub Hassan (1913 ILR 35 All 159) the Oudh
Chief Court in Kedemath v. Pattu Lal (ILR
20 Luck 557 (AIR 1945 Oudh 312), and the
Punjab High Court in Joti Parshad v.
Ganeshi Lal (AIR 1961 Punj 120) seem to
take the view that there can be only one
preliminary decree and one final decree
thereafter. The Madras, Bombay and Calcutta
High Courts seem to take the view that
there can be more than one preliminary
decree : (Kasi v. V. Ramanathan
Chettiar(1947-2 Mad LJ 523) Raja Peary
Mohan v. Manohar (27 Cal WN 989 (AIR 1924
Cal 160), and Parshuram v. Hirabai. AIR
10
1957 Bom 59.
7. We are of opinion that there is nothing in
the Code of Civil Procedure which prohibits
the passing of more than one preliminary
decree if circumstances justify the same and
that it may be necessary to do so particularly
in partition suits when after the preliminary
decree some parties die and shares of other
parties are thereby augmented. We have already
said that it is not disputed that in partition
suits the court can do so even after the
preliminary decree is passed. It would in our
opinion be convenient to the court and
advantageous to the parties, specially in
partition suits, to have disputed rights
finally settled and specification of shares in
the preliminary decree varied before a final
decree is prepared. If this is done, there is
a clear determination of the rights of parties
to the suit on the question in dispute and we
see no difficulty in holding that in such
cases there is a decree deciding these
disputed rights; if so, there is no reason why
a second preliminary decree correcting the
shares in a partition suit cannot be passed by
the court. So far therefore as partition suits
are concerned we have no doubt that if an
event transpires after the preliminary decree
which necessitates a change in shares, the
court can and should (1) A.I.R. 1957 Bom. 59.
(3) (1945) I.L.R. 29 Luck, 557. (5) [1947] II
Mad. L.J. 523. (2) (1913) I.L.R. 35 All. 159.
(4) A.I.R. 1961 Puni. 120. (6) [1923] 27 Cal.
W.N. 989. do so; and if there is a dispute in
that behalf, the order of the court deciding
that dispute and making variation in shares
specified in the preliminary decree already
passed is a decree in itself which would be
liable to appeal. We should however like to
point out that what we are saying must be
confined to partition suits, for we are not
concerned in the present appeal with other
kinds of suits in which also preliminary and
final decrees are passed. There is no
prohibition in the Code of Civil Procedure
against passing a second preliminary decree in
such circumstances and we do not see why we
should rule out a second preliminary decree in
such circumstances only on the ground that the
Code of Civil Procedure does not contemplate
11
such a possibility. In any case if two views
are possible-and obviously this is so because
the High Courts have differed on the
question-we would prefer the view taken by the
High Courts which hold that a second
preliminary decree can be passed, particularly
in partition suits where parties have died
after the preliminary decree and shares
specified in the preliminary decree have to be
adjusted. We see no reason why in such a case
if there is dispute, it should not be decided
by the court which passed the preliminary
decree, for it must not be forgotten that the
suit is not over till the final decree is
passed and the court has jurisdiction to
decide all disputes that may arise after the
preliminary decree, particularly in a
partition suit due to deaths of some of the
parties. Whether there can be more than one
final decree does not arise in the present
appeal and on that we express no opinion. We
therefore hold that in the circumstances of
this case it was open to the court to draw up
a fresh preliminary decree as two of the
parties had died after the preliminary decree
and before the final decree was passed.
Further as there was dispute between the
surviving parties as to devolution of the
shares of the parties who were dead and that
dispute was decided by the trial court in the
present case and thereafter the preliminary
decree al- ready passed was amended, the
decision amounted to a decree and was liable
to appeal. We therefore agree with the view
taken by the High Court that in such
circumstances a second preliminary decree can
be passed in partition suits by which the
shares allotted in the preliminary decree
already passed can be amended and if there is
dispute between surviving parties in that
behalf and that dispute is decided the
decision amounts to a decree. We should
however like to make it clear that this can
only be done so long as the final decree has
not been passed. We therefore reject this
contention of the appellant.“
The decision is distinguishable and cannot be said to
be applicable in view of the factual matrix of the instant
12
case where the right has been asserted, which came into
existence before the preliminary decree was passed and Nima
Kaur was not a party to suit. It also appears that it was
not the plea that was taken by any of the parties during the
course of preliminary decree that she was having right, title
or interest on the basis of settlement/gift deed dated
30.12.1978.
16. Learned counsel has also relied upon the decision of
this Court in SS Reddy vs. Narayan Reddy, (1991) 3 SCC 647,
in which there was change of law after passing of the
preliminary decree. In that context, this Court has laid down
that since Hindu daughter’s rights in coparcenary property
were not recognized earlier, it should be taken on the basis
of the law which prevails on the date of final decree
proceedings. In the meanwhile, after passing of preliminary
decree the amendment that has been taken place by way of
Amending Act was taken into consideration and the final
decree was modified, accordingly. It was also a case of
subsequent event after passing of the preliminary decree
which necessitated re-determination of the shares, otherwise
preliminary decree was final. Factual matrix is not the same
in the instant case. In S. Sai Reddy vs. S. Narayana Reddy &
Ors. (supra), this Court laid down thus:
“7. The question that falls for our
consideration is whether the preliminary
decree has the effect of depriving
respondents 2 to 5 of the benefits of the
13
amendment. The learned counsel placed
reliance on clause (iv) of Section 29-A to
support his contention that it does. Clause
(ii) of the section provides that a daughter
shall be allotted share like a son in the
same manner treating her to be a son at the
partition of the joint family property.
However, the legislature was conscious that
prior to the enforcement of the amending
Act, partitions will already have taken
place in some families and arrangements with
regard to the disposition of the properties
would have been made and marriage expenses
would have been incurred etc. The
legislature, therefore, did not want to
unsettle the settled positions. Hence, it
enacted clause (iv) providing that clause
(ii) would not apply to a daughter married
prior to the partition or to a partition
which had already been effected before the
commencement of the amending Act. Thus if
prior to the partition of family property a
daughter had been married, she was
disentitled to any share in the property.
Similarly, if the partition had been
effected before September 5, 1985 the date
on which the amending Act came into force,
the daughter even though unmarried was not
given a share in the family property. The
crucial question, however, is as to when a
partition can be said to have been effected
for the purposes of the amended provision. A
partition of the joint Hindu family can be
effected by various modes, viz., by a family
settlement, by a registered instrument of
partition, by oral arrangement by the
parties, or by a decree of the court. When a
suit for partition is filed in a court, a
preliminary decree is passed determining
shares of the members of the family. The
final decree follows, thereafter, allotting
specific properties and directing the
partition of the immovable properties by
metes and bounds. Unless and until the final
decree is passed and the allottees of the
shares are put in possession of the
respective property, the partition is not
complete. The preliminary decree which
determines shares does not bring about the
final partition. For, pending the final
decree the shares themselves are liable to
14
be varied on account of the intervening
events. In the instant case, there is no
dispute that only a preliminary decree had
been passed and before the final decree
could be passed the amending Act came into
force as a result of which clause (ii) of
Section 29-A of the Act became applicable.
This intervening event which gave shares to
respondents 2 to 5 had the effect of varying
shares of the parties like any supervening
development. Since the legislation is
beneficial and placed on the statute book
with the avowed object of benefiting women
which is a vulnerable section of the society
in all its stratas, it is necessary to give
a liberal effect to it. For this reason
also, we cannot equate the concept of
partition that the legislature has in mind
in the present case with a mere severance of
the status of the joint family which can be
effected by an expression of a mere desire
by a family member to do so. The partition
that the legislature has in mind in the
present case is undoubtedly a partition
completed in all respects and which has
brought about an irreversible situation. A
preliminary decree which merely declares
shares which are themselves liable to change
does not bring about any irreversible
situation. Hence, we are of the view that
unless a partition of the property is
effected by metes and bounds, the daughters
cannot be deprived of the benefits conferred
by the Act. Any other view is likely to
deprive a vast section of the fair sex of
the benefits conferred by the amendment.
Spurious family settlements, instruments of
partitions not to speak of oral partitions
will spring up and nullify the beneficial
effect of the legislation depriving a vast
section of women of its benefits.
8. Hence, in our opinion, the High Court has
rightly held that since the final decree had
not been passed and the property had not
been divided by metes and bounds, clause
(iv) to Section 29-A was not attracted in
the present case and the
respondent-daughters were entitled to their
share in the family property.”
15
18. Reliance has also been placed on a decision of this
Court in S. Satnam Singh and Ors vs. Surender Kaur and Anr.
[(2009) 2 SCC 562] in which this Court laid down thus:
“18. In certain situations, for the purpose of
complete adjudication of the disputes between the
parties an appellate Court may also take into
consideration subsequent events after passing of
the preliminary decree.
In Ct. A. Ct. Nachiappa Chettiar & Ors. V.
Ct. A. Ct. Subramaniam Chettiar [(1960) 2 SCR 209],
it was held :
“20 It would thus be seen that the
respondent’s share in the family
properties was not in dispute nor was his
share in the properties in Burma seriously
challenged. The only plea raised in
respect of the latter claim was that the
court had no jurisdiction to deal with it.
This state of the pleadings in a sense
truly reflected the nature of the dispute
between the parties. It is common ground
that the family is a trading family and
there could be no doubt that the assets of
the family were partible between the
members of the family. It was on these
pleadings that the trial judge framed
fifteen issues and set down the case for
hearing.”
19. While dealing with the application under
Section 21 of the Arbitration Act, 1940 where
one of the questions was as to whether an
immoveable property situated in Burma could be a
subject matter of reference, in Phoolchand & Anr.
v. Gopal Lal [(1967) 3 SCR 153], it was held :
“7. We are of opinion that there is
nothing in the Code of Civil Procedure
which prohibits the passing of more than
one preliminary decree if circumstances
justify the same and that it may be
necessary to do so particularly in
partition suits when after the
preliminary decree some parties die and
16
shares of other parties are thereby
augmented. We have already said that it
is not disputed that in partition suits
the court can do so even after the
preliminary decree is passed. It would in
our opinion be convenient to the court
and advantageous to the parties,
specially in partition suits, to have
disputed rights finally settled and
specification of shares in the
preliminary decree varied before a final
decree is prepared. If this is done,
there is a clear determination of the
rights of parties to the suit on the
question in dispute and we see no
difficulty in holding that in such cases
there is a decree deciding these disputed
rights; if so, there is no reason why a
second preliminary decree correcting the
shares in a partition suit cannot be
passed by the court. So far therefore as
partition suits are concerned we have no
doubt that if an event transpires after
the preliminary decree which necessitates
a change in shares, the court can and
should do so; and if there is a dispute
in that behalf, the order of the court
deciding that dispute and making
variation in shares specified in the
preliminary decree already passed is a
decree in itself which would be liable to
appeal. We should however like to point
out that what we are saying must be
confined to partition suits, for we are
not concerned in the present appeal with
other kinds of suits in which also
preliminary and final decrees are passed.
There is no prohibition in the Code of
Civil Procedure against passing a second
preliminary decree in such circumstances
and we do not see why we should rule out
a second preliminary decree in such
circumstances only on the ground that the
Code of Civil Procedure does not
contemplate such a possibility.”
Thus, subsequent event can be taken consideration while
working out the preliminary decree into the shape of final
17
decree. It was also a case of subsequent event. As such, it
is quite distinguishable. In the instant case, the
preliminary decree has attained finality. The High Court has
earlier rightly observed that preliminary decree would not be
reopened due to impleadment which had been ordered.
19. In our opinion, the High Court has erred in law while
directing that further preliminary decrees can be passed. It
was not a case of subsequent event or change of law. The
only remedy available to Nima Kaur was to file a separate
suit. Accordingly, we restore the order passed by the Civil
Judge and set aside the order passed by the High Court in the
revision petition. The appeals are allowed to the aforesaid
extent. It is made clear that we have not adjudicated on the
rights of Nima Kaur while deciding this matter and we have
prima facie made the observations to decide whether any share
she could claim in the final decree proceedings. Therefore,
fresh suit, if any, to be filed by her, be decided unfettered
by any observations made by us in the order or in the final
decree.
…………………..J.
(ARUN MISHRA)
…………………..J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
AUGUST 2, 2017.
18
ITEM NO.115 COURT NO.11 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).319-320/2009
SARDAR SURJEET SINGH Appellant(s)
VERSUS
JUGUNA BAI (SINCE DEAD) & ORS. Respondent(s)
Date : 02-08-2017 These appeals were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
For Appellant(s) Mr. K. Maruthi Rao, Adv.
Ms. K. Radha, Adv.
Ms. Anjani Aiyagari, AOR
For Respondent(s) Mr. Jeetendra Mohan Sharma, Sr. Adv.
Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
Mr. Anil Kumar Tandale, AOR

UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the signed
order.
(B.PARVATHI) (TAPAN KUMAR CHAKRABORTY)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)

Posted in Uncategorized

MADRAS HIGH COURT – Under valuation of suit – Powers of court – To ascertain the correct market value of the property, the court has power under Section 19 of the Tamil Nadu Court Fees and Suits Valuation Act and Order XXVI Rule 9 CPC to appoint a Commissioner in this regard.

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.08.2017

CORAM

THE HONOURABLE MS.JUSTICE V.M.VELUMANI

C.R.P. PD No.3686 of 2016
and C.M.P.No.18699 of 2016

 

Judgment reserved on
18.07.2017
Judgment pronounced on
21.08.2017

 

S.N.Balapattabi … Petitioner

Vs

Mrs.Balanagalakshmi … Respondent

Civil Revision Petition is filed under Article 227 of the Constitution of India against the fair order and decreetal order dated 26.09.2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007 on the file of the III Additional District & Sessions Judge at Gobichettipalayam.

For Petitioner : Mr.V.Raghavachari for
M/s.M.Narayanasamy

For Respondent : Mr.S.Parthasarathy,
Senior Counsel for
M/s.Kumar & Baskar

O R D E R
This Civil Revision Petition is filed against the fair order and decreetal order dated 26.09.2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007 on the file of the III Additional District & Sessions Judge at Gobichettipalayam.

2. The petitioner is the defendant and the respondent is the plaintiff in O.S.No.2 of 2007 before the Fast Track Court No.2, Gobichettipalayam. The respondent filed suit in O.S.No.2 of 2007 for partition into two shares and allot one share to the respondent and for mense profits. The petitioner filed I.A.No.250 of 2015 under Order VII Rule 11 CPC for rejection of the plaint. According to the petitioner, the title of the respondent is denied and she ought to have filed suit for declaration. The suit is barred by limitation as respondent is not in possession of the suit property, plaint does not discloses any cause of action, the respondent suppressed the material facts and has not impleaded necessary parties as the two daughters of the petitioner are also co-parceners, non-production of documents based on the cause of action and the respondent has not properly valued Item Nos.8 & 9 of the suit property and has not paid proper court fee.

 

3. According to the petitioner, the respondent is claiming partition of ancestral properties, joint family properties as well as separate properties. In view of these facts, three separate nature of properties, the respondent has to value the properties at the market value and pay the court fee on the said value as per Section 37 (1) of the Tamil Nadu Court Fees & Suits Valuation Act and not as per Section 37 (2) of the Act. The respondent is not in joint possession of all the properties and therefore she has to pay the court fee at Ad valorem on the market value of the suit properties.

4. The respondent filed counter affidavit, additional counter affidavit and denied various allegations made by the petitioner. According to the respondent, the suit was initially filed in Sub Court, Gobichettipalayam and was taken on file as O.S.No.9 of 2004 and pending suit, the petitioner filed I.A.No.125 of 2005 on the ground that Sub Court, Gobichettipalayam has no pecuniary jurisdiction to entertain and pass orders on the suit. After enquiry, it was held that Sub Court, Gobichettipalayam has no pecuniary jurisdiction and after valuing the properties, the suit was represented before District Court, Erode and numbered as O.S.No.177 of 2006. The said suit was transferred to the III Additional District Court No.3, Gobichettipalayam and re-numbered as O.S.No.2 of 2007.

5. According to the respondent, she is claiming partition as per the provision of Hindu Succession Act as amended and she is liable to pay court fee only under Section 37 (2) of Tamil Nadu Court Fees and Suits Valuation Act and Section 37 (1) of the Tamil Nadu Court Fees and Suits Valuation Act is not applicable to the facts of the case. She also further stated that the suit is not undervalued, the plaint cannot be rejected under Order VII Rule 11 (b) CPC. If court comes to the conclusion that the suit is undervalued, the respondent must be given time to pay the court fee and only when she fails to pay the deficit court fee, plaint can be rejected. Already Sub Court, Gobichettipalayam has enquired into the value of the property and returned the plaint on the ground that the property is undervalued. The respondent, after return of the said plaint, valued the properties at the market rate and has represented the plaint before the District Court, Erode and it has been numbered as O.S.No.177 of 2006 and subsequently it was transferred to Fast Track Court, Gobichettipalayam and re-numbered as O.S.No.2 of 2007. In view of the said fact, the petitioner has no right to raise the said issue once again.
6. Before the learned Judge, the petitioner examined himself as PW1 and marked eight documents as Exs.P1 to P8. The respondent did not let in any oral or documentary evidence. The learned Judge, considering all the materials on record and documents filed by the petitioner, dismissed the application holding that the reasons given by the petitioner for rejection of plaint are not valid and also held that the properties mentioned as Item No.9 in the plaint is owned by the respondent and petitioner’s wife and at this stage, it is not necessary to decide how much share the petitioner’s wife is entitled to and the same can be decided only at the time of trial of the suit.

7. Against the said order of dismissal dated 26.09.2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007, the present Civil Revision Petition is filed.

8. The learned counsel appearing for the petitioner submitted that the respondent has been ousted from the suit properties for more than statutory period, the respondent was not in possession of the suit properties from 1990 and suit is filed after 12 years and the same is barred by limitation. She is not in joint possession with the petitioner. In view of the ouster, it cannot be said that she is deemed to be in joint possession of the suit properties with the petitioner. The suit filed by the respondent is not only for ancestral and joint family properties but also for separate properties and also properties alleged to have been inherited by her. The respondent has to pay the court fee under different heads as provided under Tamil Nadu Court Fees and Suits Valuation Act. The value of the properties in Item Nos.8 to 10 are not valued even as per the guideline value. The value of the properties are more than Rs.10 lakhs and Rs.12 lakhs whereas the respondent has valued the suit properties only at Rs.60,000/- and Rs.80,000/- respectively.

9. The learned Judge erred in dismissing the application holding that the petitioner has not filed documents now filed, before Sub Court, at the time of enquiry in I.A.No.125 of 2004 in O.S.No.9 of 2004. The learned Judge erred in dismissing the application on the ground that the petitioner is challenging the value in respect of Item Nos.8 to 10 only and not all the properties. The learned Judge, having held that the properties in Item No.9 is in the names of the petitioner’s wife and respondent, ought to have ordered enquiry with regard to market value of the property and directed the respondent to pay court fee under Section 37 (1) of the Tamil Nadu Court Fees and Suits Valuation Act. The learned Judge erred in holding that the share of the petitioner’s wife can be determined only at the time of trial. The learned Judge failed to see that Item Nos.8 to 10 are separate properties and respondent has to pay the court fee only under Section 37 (1) of the Tamil Nadu Court Fees and Suits Valuation Act, at the market value as she is not in joint possession of the suit properties or deemed to be in joint possession with the petitioner. The learned Judge has committed irregularity in dismissing the application on the ground that the suit is eight years old. The learned Judge failed to see that as per Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, the Court has power to decide the value of the suit before evidence is recorded.

10. In the present case, trial has not commenced. No evidence is recorded. The petitioner has raised the issue of undervaluation of properties before recording of evidence and the learned Judge ought to have decided the issue on merits as per Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. The Court has power under Section 19 of the Tamil Nadu Court Fees and Suits Valuation Act and under Order XXVI Rule 9 of CPC to appoint a Commissioner to ascertain the market value of the properties. In support of his contention, the learned Counsel for the petitioner relied upon the following judgments –

(i) AIR 2003 MADRAS 290 [George Thomas v. Smt.Srividya]
26. However, the disentitlement of the defendant to raise the plea of under valuation will not absolve the liability of the plaintiff to pay proper Court fee. In the event, on facts, this Court comes to the conclusion that the suit is undervalued, even in the absence of any plea, it can direct the plaintiff to pay the deficit court fee.

(ii) 2010 (5) L.W. 334 [Regila Prem v. Chellappan & others]
19. As per the said judgment, when an application is filed disputing the valuation of the property, the court has to consider the same and the same shall be considered as per the section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and the learned Judge has held the provision of section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act is a substantial law, which will prevail over Order 14, Rule 2 CPC, which is a procedural law. Nevertheless, having regard to the facts of that case, the learned Judge dismissed the revision petition filed by the tenant for deciding the matter as a preliminary issue.

24. Therefore, in the light of the observation of the Honourable Supreme Court and the law laid down by this Court in the judgment reported 2002(2) CTC 513, in the case of V.R.Gopalakrishnan vs. Andiammal, referred to above, I am of the opinion that when a question of jurisdiction is raised by filing an application under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act by stating that the property was not properly valued and if properly valued, the court will have no jurisdiction, the same must be tried as a preliminary issue and court has to direct the parties to lead in evidence in that aspect, otherwise there is no purpose in enacting section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act.

(iii) 2016 (4) MLJ 765 [N.Ganesan v. Vadivel]

8. It is also quite well settled in law that the payment of Court Fee cannot be made according to the whims and fancies of the Plaintiff and Section 149 of C.P.C cannot be taken as a license to justify the inordinate delay on the part of the Plaintiff.

(iv) 1992 (1) SCC 731 [Sujir Keshav Nayak v. Sujir Ganesh Nayak]

3. ……………………………………………………. Competency refers to jurisdiction territorial or pecuniary, of limited or unlimited limits. In courts of limited pecuniary jurisdiction valuation assumes great importance. A plaintiff may over or under-value the suit for purposes of avoiding a court of a particular grade. In the former the plaint may be returned under 0.7 Rule 10 for presentation in proper court but in latter it is liable to be rejected. Since under-valuation goes to the root of maintainability of the suit a defendant is entitled to raise the objection irrespective of the nature of the suit. That is why this Court in Abdul Hamid Shamsi v. Abdul Majid And Ors. while upholding the right of the plaintiff to value the suit for accounting according to his own estimate held that he “has not been given the absolute right or option to place any valuation whatever in such relief.” But that was a case of limited pecuniary jurisdiction in which the defendant could object as arbitrary under-valuation could result in rejection of the plaint. ………………………………………………………………………………………………………………….. But in suits of such nature filed before courts of unlimited jurisdiction the valuation disclosed by the plaintiff may be accepted as correct. This, however, does not mean that the courts power to examine the correctness of valuation is taken away. If on perusal of plaint the court is prima facie satisfied that the plaintiff has not been fair and valued the suit or relief arbitrarily it is not precluded from directing the plaintiff to value it properly and pay court fee on it.

(v) 1987 (4) SCC 71 [E.Achuthan Nair v. P.Narayanan Nair & Anr.]

4. ……………………………………………It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. The plaintiff has valued the lease hold interest on the basis of the rent. Such a valuation, as has been rightly held by the Courts below, is reasonable and the same is not demonstratively arbitrary nor there has been any deliberate underestimation of the reliefs.

 

11. Per contra, the learned Senior Counsel appearing for the respondent submitted that plaint can be rejected only when any one of the ingredients of Order VII Rule 11 (a) to (d) of CPC is satisfied. In the present case, objection raised by the petitioner are not as per Order VII Rule 11 (b) of CPC. Even if the Court comes to the conclusion that the suit is not properly valued, the plaint cannot be straightaway rejected. The Court has to direct the plaintiff to pay the deficit court fee within the time granted. If the plaintiff pays the court fee as directed by the Court, then the suit must be proceeded with. Only if the plaintiff fails to pay the deficit court fee as directed by the Court, the plaint can be rejected. In the present case, already Sub Court, Gobichettipalayam has decided the question of valuation and it was found that the plaint was not properly valued and the same was returned to be represented before the proper court.

12. The respondent valued the suit and presented the same before District Court on payment of proper court fee and the same was taken on file accepting the valuation given by the respondent as correct. It is not open to the petitioner now to raise the same issue once again. The respondent has stated in the plaint that she is in joint possession of the suit property including the properties inherited from her mother. The learned Senior Counsel submitted that the petitioner has also admitted the joint possession. In the application for rejection of plaint, only the averments in the plaint and documents filed alongwith the plaint can be considered. The averments in the written statement or documents relied on by the petitioner or averments filed in support of the rejection of plaint cannot be taken into consideration. The plaint discloses cause of action and also as to how the suit is not barred by limitation. The learned Senior Counsel also submitted that the respondent is in joint possession of the suit property and therefore the court fee paid under Section 37 (2) of the Tamil Nadu Court Fees and Suits Valuation Act is correct. The learned Judge has considered all the facts and law and has dismissed the application.

13. In support of this contention, the learned Senior Counsel for the respondent relied upon the following judgments –

(i) 2006 (4) L.W. 896 [Ramesh B. Desai & ors. v. Bipin Vadilal Mehta and ors.]

14. The principle underlying Clause (d) of Order VII Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was held as under in para 10 of the report: –

“10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.”

It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by sub-rule (d) of Order VII Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the Company Petition was barred by limitation has to be examined by looking into the averments made in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannot at all be looked into.

(ii) 2015 (3) CTC 671 [M.K. Mala v. M.K.Ravi]

7.2. In order to appreciate this answer, it is necessary to look into the basis of claim made for partition. It is the case of the plaintiff that in the partition between the mother and the legal heirs, namely, the plaintiff and the defendants, suit property was allotted to the share of the mother, K.Saroja Bai in the partition that took place on 02.12.1994; that Saroja Bai died on 02.06.1999; that after the death of Saroja Bai, the plaintiff and the defendants became entitled to the property as legal representative and each of them are entitled to 1/4th share. The sum and substance of the pleadings would go to show that after the death of the mother, the plaintiff and the defendants are deemed to be in joint possession of the property. When it is stated in the evidence that nobody is in possession of the property and when the pleadings indicate presumptive joint possession, the evidence must be interupted as the plaintiff having meant the actual physical residence as possession. In other words, the plaintiff has understood that actual physical entry into the property alone would mean possession, which is the understanding of a common man. But the Court should not be carried away by the language used by the common man and the Court is duty bound to interpret the same legally. Therefore, the evidence adduced would show that the plaintiff and the defendants must be deemed to be in joint possession of the property.

(iii) 99 L.W. 711 [P.Ramaswamy Gounder v. Ambujan & Ors.]

4. The three cardinal principles that should be borne in mind while disposing of a question relating to court-fee are : (1) The Court shall accept the plaint averments as correct and apply the appropriate provision in the Act, (b) the court shall not be carried away by the form in which the plaint is dressed but shall peep into the substance to ascertain the base for reliefs claimed and the reliefs really asked for in the action, and (c) the Court is not concerned with the legality or maintainability of the claim as that relates to the merits and falls outside the purview of the Act.

7. According to the Learned Counsel for the petitioner, a reading of the plaint as a whole will disclose that the plaintiff is not even in constructive possession of both movable properties in respect of which she had claimed partition and therefore the court-fee has to be paid under Section 37(1) of the Act. In this context great reliance is made on the allegations in the plaint that the plaintiff had claimed accounting in respect of these properties as well. According to the learned Advocate General, that will imply that there was an ouster and therefore, the appropriate provision is Section 37(1) but not Section 37(2). I am unable to agree. The plaint has categorically stated that she is one of the heirs to her father and that all the properties were the separate and absolute properties of her father and that she claims a share as a heir to her father. ‘The law presumes that the possession and enjoyment of one co-owner is on behalf of others as well. It may be open to one of the co-owners to plead ouster and if she were to succeed, it is a different matter. But when considering the question of court-fee, as already pointed out by me, the relevant data to be noticed is the averments in the plaint. I have already referred to the fact that the plaintiff has claimed a share as heir to her father and that she stated that because she was denied the share in the income, she was constrained to ask for accounting in respect of her share in the income. That by itself will not necessarily imply that she is out of legal possession of the properties in respect of which the relief for partition is claimed. It is true that “the plaintiff is deemed to be in joint possession of the properties” is written in ink later in the body of the original plaint. I am at a loss to understand as to how such as insertion will in any way alter the position of law. It is always open to the plaintiff to amend the plaint in any manner he or she likes, before it is presented. Therefore, when the matter is taken up for consideration by court, it has to take the averments as a whole as found in the plaint albeit there, was correction or addition before it was presented. I am to reiterate that there is enough indication in the plaint that the possession of others is on behalf of all the sharers entitled to the property and therefore, as rightly pointed out by the plaintiff, she shall be deemed to be in joint possession of the property. If so, the claim for partition as valued under Section 37(2) is quite correct.

(iv) AIR 1978 SC 1607 [Lakshmi Ammal v. K.M.Madhavakrishnan and ors.]

3. In this particular case there is hardly any difficulty in holding that the plaintiff in paragraph 14 of the plaint has clearly alleged that sh., is in joint possession and is seeking partition and separate possession of her half share in the suit properties as heir of deceased, Paramayee. Obviously, the court fee that is payable is as she has claimed, namely under sec. 37(2) which corresponds to Art. 17(b) of the Central Act, which is the predecessor legislation on the subject. We allow the appeal and send the case back to the trial court and direct that court to proceed with the suit expeditiously. We make it clear that our decision on the question of court fee does not have any implications on the merits including the validity or otherwise of the Will. No costs.

(v) 1980 (2) SCC 247 [Neelavathi & Ors. v. N.Natarajan & Ors.]

8. …………………………………………………….. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that. he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under S. 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. The averments in the plant that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession.

14. Heard the learned counsel appearing for the petitioner as well as the learned Senior Counsel appearing for the respondent, perused the materials available on record and also the judgments relied on by the parties.
15. The petitioner, in Interlocutory Application for rejection of plaint raised various grounds. In the Civil Revision Petition, the petitioner has restricted his contention for rejection of plaint under Order VII Rule 11(b) CPC. According to the petitioner, the respondent is seeking partition on three different heads, i.e. ancestral properties, succession and separate properties. The respondent was never in possession of the suit property even during the life time of their grandfather and parents. In such circumstances, the respondent cannot claim deemed possession in respect of her claim by succession and in respect of separate properties. On the other hand, the learned Senior Counsel appearing for the respondent submitted that the respondent is in joint possession alongwith the petitioner as the petitioner is enjoying the property on behalf of the respondent and on his behalf. The said contention is untenable as the respondent is claiming share in some of the properties by succession and on separate possession. To decide the issue whether the court can ascertain the market value of the properties and direct the plaintiff to pay the deficit court fee, if any, the relevant provisions are Section 12 (2) and 19 of the Tamil Nadu Court Fees and Suits Valuation Act and Order VII Rule 11 (b) of CPC. These provisions are extracted hereunder for appreciation of the issue in question.

Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act.

12. Decision as to proper fee in other courts. –

(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

Section 19 of the Tamil Nadu Court Fees and Suits Valuation Act.

19. Inquiry and commission. –

For the purpose of deciding whether the subject-matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such inquiry as it considers proper and may, if it thinks fit, issue a commission to any proper person directing him to make such local or other investigation as may be necessary and to report thereon to the Court.

Order VII Rule 11 (b) of CPC

11. Rejection of plaint – The plaint shall be rejected in the following cases :-
(b) Where the relief claimed is under-valued, and the plaintiff, on being required bythe Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

16. From the materials available on record, I hold that it cannot be said that the respondent is in joint possession i.e. deemed possession alongwith the petitioner. The contention of the learned Senior Counsel for the respondent is that the petitioner himself has admitted in Para 7 of the affidavit that the respondent is in joint possession. A reading of the said paragraph shows that the petitioner did not admit joint possession by the respondent. On the other hand, he has stated that the plaint speaks about joint possession. Once as per law, it cannot be said that the respondent is in deemed possession, she has to pay the ad-valorem court fee on the market value as per Section 37 (1) of the Act. The contention of the learned counsel for the petitioner in this regard has considerable force. The learned Judge has held that the property mentioned in Item No.9 belongs only to the respondent and petitioner’s wife. The petitioner has no share in the said property. Having held so, the learned Judge erred in holding that the share of the petitioner’s wife can be decided only during the trial. The learned Judge failed to see that the respondent is claiming = share in the said property also. In view of the finding that item No.9 belongs to the respondent and petitioner’s wife, the respondent cannot contend that she is deemed to be in joint possession alongwith the petitioner.

17. Having held that in Item No.9, the petitioner’s wife has a share, the learned Judge ought to have passed orders for ascertaining the market value of the property. Similarly, the learned Judge having held that value of the properties in Item Nos.8 to 10 is more than what is stated in the plaint even as per the document and having held that respondent must be given an opportunity to pay the additional court fee, if any, ought to have passed order for ascertaining the market value of those properties and directed the respondent to pay additional court fee, if any. The learned Judge failed to consider Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act wherein it has been clearly stated that before recording evidence, if defendant raises the plea on undervaluation of the suit, the Court has to decide such plea after hearing the parties. If Court comes to the conclusion that the property is undervalued, the Court has to fix the date before which the plaint has to be amended in accordance with law with court’s decision and deficit court fee has to be paid. If the plaintiff fails to amend and pay the deficit court fee, the plaint has to be rejected. To ascertain the correct market value of the property, the court has power under Section 19 of the Tamil Nadu Court Fees and Suits Valuation Act and Order XXVI Rule 9 CPC to appoint a Commissioner in this regard. The learned Judge failed to consider these provisions and failed to exercise his powers conferred on him. The learned Judge committed an irregularity in dismissing the application on the ground that the suit is eight years old and petitioner has not made any case for rejection of plaint.

18. In view of the above, the order of the learned Judge dated 26.09.2016 made in I.A.No.250 of 2015 in O.S.No.2 of 2007 is liable to be set aside and is hereby set aside. All the judgments relied on by the learned counsel for the petitioner as well as the learned Senior Counsel for the respondent had decided about the consideration for rejection of plaint, ascertaining the market value of the property and payment of additional court fee, if any. The judgments relied on by the learned counsel for the petitioner are squarely applicable to the facts of the present case. In the said circumstances, the learned Judge is directed to appoint an Advocate Commissioner as per Section 19 of the Tamil Nadu Court Fees and Suits Valuation Act and Order XXVI Rule 9 CPC to ascertain the correct market value of the properties mentioned in Item Nos.8 to 10 and if the market value is more than what is mentioned in the plaint and the respondent has not paid proper court fee, the respondent may be directed to pay the deficit court fee within the time limit fixed by the Court and pass consequential order as per Section 12 (2) of the Tamil Nadu Court Fees and Suit Valuation Act and Order VII Rule 11 (b) CPC.

19. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.

21.08.2017
Index : Yes/No
rgr

To
The III Additional District & Sessions Judge,
Gobichettipalayam.

 

V.M.VELUMANI, J.

rgr

 

 

 

 

Order in
C.R.P. PD No.3686 of 2016

 

 

 

 

 

21.08.2017

 

 

Posted in Uncategorized

BOMBAY HIGH COURT AT NAGPUR BENCH NAGPUR – Whether the Family Settlement dated 20th November, 1982 (Exh.244) and oral partition reduced to Memorandum Fard dated 9th January, 1983 (Exh.243) require compulsory registration under Section 17 of the Registration Act? held that the plaintiff having accepted and acted upon family settlement as well as the memorandum of partition, she was estopped from challenging the same. Said documents even otherwise did not require any compulsory registration under Section 17 of the Registration Act, 1908.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.109 OF 2015
APPELLANT:
(Ori. Defendants)
1. Smt.   Madankuwar   wd/o   Rekhchandji
Parakh,   aged   about   96   years,   Occ.
Household,   r/o   Dhanraj   Plaza,   Main
Road, Chandrapur.
2. Smt.   Shardkuwar   wd/o   Pannalaji
Talera,   aged   about   78   years,   Occ.
Household,   r/o   Pawan   Building,   Ekori
ward, Chandrapur.
3. Smt.   Shantakuwar   wd/o   Gulabchandji
Shishodiya, aged about 74 years, Occ.
Household, r/o Bogulkanta, Hyderabad
(Telangana) A.P.

­VERSUSRESPONDENTS:
(Ori. Plaintiff)
1. Smt. Sushila w/o Gyanchand Katariya,
Aged about 67 years, Occ. Household,
r/o   Near   Bank   of   India,   Main   road,
Chandrapur.
(Ori. Deft. No.4) 2. Shri   Deepakkumar   S/o   Rekhchandji
Parakh,   aged   about   49   years,   Occ.
Business,   R/o   Dhanraj   Plaza,   Main
Road, Chandrapur.

Mr. K. H. Deshpande, Senior Advocate with Mr. Akshay Sudame,
Advocate for the appellants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. Tapadia, Advocate
for the respondent no.1.
Mr. V. R. Choudhari, Advocate for the respondent no.2.
::: Uploaded on – 24/08/2017 ::: Downloaded on – 15/10/2017 11:13:29 :::
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 03­08­2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24­08­2017
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of
Civil Procedure, 1908 is at the instance of the original defendant
nos.1 to 3 who are aggrieved by the judgment and decree passed
by the first appellate Court decreeing the suit for partition and
separate possession filed by the respondent no.1.
2. Facts   found   necessary   for   deciding   this   appeal   are
stated thus:
3. One Jethmalji Parakh was married to Smt. Hirabai.
Said Jethmalji died in November, 1956.  Thereafter, his step­son
Rekhchand and Hirabai constituted joint Hindu family possessing
various properties.  Rekhchandji was married to one Madan Kuwar
– defendant no.1.  They had three daughters namely the plaintiff
and the defendant nos.2 and 3.  The defendant no.4 was taken in
adoption as son of late Rekhchandji.   According to the plaintiff,
Hirabai had executed a will in her favour on 18­10­1981.   Said
Hirabai also executed a lease deed in favour of the plaintiff on
30­7­1982.  Though the defendant nos.1 to 3 sought to rely upon a
partition that took place on 9­1­1983, this partition was denied by
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the plaintiff.  On that basis, the plaintiff filed suit for partition and
separate   possession   of   various   properties   as   described   in   the
Schedule to the plaint.
4. The defendant nos.1 to 4 filed their written statement
and admitted the relationship between the parties.  It was denied
that Hirabai had executed any will in favour of the plaintiff on
18­10­1981.  They relied upon an oral partition that took place on
31­12­1982 which was later on reduced to writing on 9­1­1983.
According to the defendants, this partition was acted upon by all
the parties including the plaintiff. The defendants relied upon will
dated 26­5­1983 executed by Hirabai and according to them, the
earlier will dated 18­10­1981 could not be acted upon. It was thus,
prayed that the suit be dismissed.
5. After the parties led evidence, the trial Court held that
the plaintiff had failed to prove that Hirabai had executed a will in
her favour on 18­10­1981.  The partition dated 9­1­1983 was also
held to be not proved by the defendant nos.1 to 4.  The subsequent
will dated 26­5­1983 was also not accepted. The suit accordingly
came to be dismissed.
The first appellate Court in the appeal filed by the
plaintiff confirmed the finding that the plaintiff had failed to prove
the execution of will dated 18­10­1981.  Similarly, the finding that
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the   defendant   nos.1   to   3   had   failed   to   prove   the   Will   dated
26­5­1983   was   affirmed.   The   first   appellate   Court,   however,
granted the alternate prayer and held the plaintiff as well as the
defendant nos.1 to 3 entitled to 1/4th share each by virtue of the
decree for partition.
6. The   defendant   nos.1   to   3   being   aggrieved   by   this
adjudication   have   preferred   the   present   second   appeal.   The
plaintiff being aggrieved by the finding recorded with regard to the
will dated 18­10­1981 and the family settlement dated 20­11­1982
has also filed cross objections.
7. This Court on 4­4­2016 allowed the second appeal and
dismissed the cross objections.  After setting aside the judgment of
the appellate Court, the judgment of the trial Court was restored.
This judgment in the second appeal was then challenged by the
original plaintiff before the Hon’ble Supreme Court.  Civil Appeal
Nos.2568/2017 and 2569/2015 were disposed of on 10­2­2017.
It was found that this Court while deciding the second appeal had
reframed the substantial questions of law that had been originally
framed while admitting the appeal.  It was held that the procedure
as laid down by provisions of Section 100(5) of the Code of Civil
Procedure,   1908   (for   short,   the   Code)   while   reframing   said
substantial   questions   of   law   had   not   been   followed.     On   that
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ground,   the   judgment   of   this   Court   was   set   aside   and   the
proceedings were remitted for reconsideration in accordance with
law.   It was observed that the appeal be decided within two or
three months. In view of aforesaid order, the appeal was taken up
for hearing.
8. After hearing the learned Counsel for the appellants
and the respondents the following substantial questions of law
were framed on 27­7­2017:­
(1) Whether the findings of fact recorded by both
the   Courts   below   for   rejecting   the   Will
(Exh.202) dated 28th October, 1981, projected
by the plaintiff are perverse?
(2) Whether   the   plaintiff   having   accepted,
admitted and acted upon the Family Settlement
dated 20th  November, 1982 (Exh.244) would
be   estopped   by   conduct   in   setting   up   a
challenge to the same Family Settlement as not
receivable in evidence for want of registration?
(3) Whether the plaintiff did not receive any share
from   the   share   of   Hirabai   under   the   Family
Settlement dated 20th  November, 1982 (Exh.
244)   and   consequently   whether   she   was
entitled   to   claim   partition   in   the   undivided
estate of Hirabai?
(4) Whether   the   Family   Settlement   dated   20th
November, 1982 (Exh.244) and oral partition
reduced   to   Memorandum   Fard   dated   9th
January,   1983   (Exh.243)   require   compulsory
registration   under   Section   17   of   the
Registration Act?
9. I have heard Shri K. H. Deshpande, learned Senior
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Advocate   with   Mr.   A.   M.   Sudame,   learned   Advocate   for   the
appellants and Shri Anil Mardikar, learned Senior Advocate with
Mr. S. Tapadia for the respondent no.1.   Shri V. R. Choudhari,
learned Advocate appeared for the respondent no.2.
10. Shri K. H. Deshpande, learned Senior Counsel for the
appellants – defendant nos.1 to 3 made the following submissions:
(a) Both the Courts were justified in holding the will dated
18­10­1981 Exhibit­202 to be not duly proved.  According to him,
there   were   various   suspicious   circumstances   on   record   which
supported the aforesaid conclusion.  It was submitted that though
it was claimed that this will was executed on 18­10­1981, it was
not at all referred to in the earlier suit that was filed by the present
plaintiff.  Regular Civil Suit No.238/1984 was filed by  the plaintiff
against   some   of   the   present   defendants   on   13­8­1984   seeking
mandatory   and   perpetual   injunction   with   regard   to   the   suit
properties   by   relying   upon   the   family   settlement   dated
20­11­1982. Existence of said will was not pleaded in that suit.
Similarly, there was also no reference to the said will in the lease
deed   dated   31­7­1982   (Exhibit­214)   as   well   as   in   the   family
arrangement   dated   22­11­1982   (Exhibit­244)   as   well   as   the
partition   deed   dated   9­1­1983   (Exhibit­243).   It   was   then
submitted that the manner in which the said will was executed
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coupled with the active participation of the plaintiff’s husband
therein also cast a doubt on its execution. Said will saw the light of
the day only in the year 1987 when the present suit was filed on
13­11­1987.  The thumb impression of the executant Hirabai was
also   not  duly  proved   and   therefore   these   findings   which  were
findings of fact recorded by both the Courts could not be termed to
be perverse.  According to the learned Senior Counsel, this finding
therefore did not require any interference.
(b) The   plaintiff   having   accepted   and   acted   upon   the
family settlement dated 20­11­1982 (Exhibit­244) was estopped by
her conduct from challenging this settlement on the ground that it
was   not   registered.    Referring   to   the   pleadings   of   the  present
plaintiff in Regular Civil Suit No.238/1984, it was submitted that
the family arrangement dated 20­11­1982 as well as the partition
deed dated 9­1­1983 were relied upon by the said plaintiff.  The
family arrangement dated 20­11­1982 was  in fact scribed by the
plaintiff’s husband Shri Gyanchand Kataria.  It was prepared with
the consultation of all family members.  Referring to the judgment
in Regular Civil Appeal No.2 of 2001 that was filed by the present
plaintiff challenging dismissal of Regular Civil Suit No.238/1984,
it was submitted that the appellate Court in para 7 of its judgment
had   recorded   a   finding   that   said   family   arrangement   dated
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20­11­1982   did   not   require   registration   and   was   admissible  in
evidence.     As   the   family   settlement   dated   20­11­1982   merely
recorded  what was already agreed, said document did not require
registration.  On the aspect of estoppel on account of conduct in
accepting such family arrangement, the learned Senior Counsel
placed reliance on the decisions in Kale and others Vs. Dy. Director
of Consolidation (1976) 3 SCC 119 and in P. N. Wankudre vs. C. S.
Wankudre   AIR   2002   Bombay   129.  It   was   thus   submitted   that
having accepted and acted upon the said family settlement, the
plaintiff was estopped from laying a challenge to the same.
(c) The plaintiff having received share from the estate of
Hirabai under the family settlement dated 20­11­1982, she was
not entitled to claim partition in the undivided estate of Hirabai.
The plaintiff had accepted the family settlement as well as the
partition and had also acted upon the same.  No grievance in that
regard was made by her in the earlier suit.  Having accepted said
arrangement, she was precluded from again demanding partition
from the share of Hirabai.
(d) The   family   settlement   dated   20­11­1982   as   well   as
partition deed dated 9­1­1983 were not required to be registered
as they did not create any right in immoveable property for the
first  time. These  documents  merely recognized  the  pre­existing
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rights of the parties and they did not by themselves transfer any
right or property. Referring to the pleadings in the earlier suit, it
was contended that the plaintiff had in fact admitted the family
settlement and partition and therefore, it was not at all necessary
to again prove the same.  The averments in the plaint in Regular
Civil Suit No.238/1984 as well as documents filed in that suit were
not at all considered by the appellate Court. Reference was also
made to the adjudication in Regular Civil Appeal No.2/2001 in
that regard. In any event, it was submitted that the proviso to
Section 49 of the Indian Registration Act, 1908 could be taken into
consideration to hold that there was severance of the joint family.
In that regard, reliance was placed on the decisions in  Roshan
Singh and Others Vs. Zile Singh and others AIR 1988 SC 881.
It was thus, submitted that for aforesaid reasons, the
judgment of the first appellate Court was liable to be set aside and
the judgment of the trial Court dismissing the suit ought to be
restored.
11. Per   contra,   Shri   Anil   Mardikar,   learned   Senior
Advocate for the respondent no.1 – plaintiff opposed aforesaid
submissions by contending as under:
(a) The will dated 18­10­1981 (Exhibit­202)was the last
will that was duly executed by Hirabai bequeathing her properties
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in favour of the plaintiff.  It was submitted that execution of this
will was not denied and in paragraph 4 of the written statement
it was merely pleaded that the executant was not in good health or
sound   mind.     No   suspicious   circumstances   were   pleaded   for
denying the validity of the aforesaid will. The will at Exhibit­404
also executed by Hirabai was undated, but it was prepared prior to
the   will   at   Exhibit­202.    Reference   was   made   to   the   letter   at
Exhibit­198 to point out the nature of relations Hirabai had with
other family members and it was on that basis that they had been
excluded from being granted any share as per that will. The thumb
impression of Hirabai on the said will had been duly proved and
on account of death of the attesting witness Dr. Dave, his son was
examined   under   Section   69   of   the   Indian   Evidence   Act.   The
husband   of   the   plaintiff   was   in   the   office   of   the   District
Government Pleader in the year 1983­84 which was subsequent to
the execution of said will on 18­10­1981.  The circumstances relied
upon for discarding said will could hardly be termed as suspicious.
The typewriter was brought merely to facilitate preparation of the
will   and   the   contents   of   that   will   were   prepared   as   per   the
directions   of   Hirabai.   The   contents   were   then   read   over   and
explained to Hirabai who had put her thumb impression on the
same. According to the learned Senior Counsel as the property that
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was the subject matter of the earlier suit being Regular Civil Suit
No.238/1984 was different from the property bequeathed under
the will at Exhibit­202, there was no reference made to the same
in   the   earlier   suit.    Similarly,   the  lease   at   Exhibit­214   was   to
operate during the life time of Hirabai and hence, there was no
reason to refer to it in the said will.   Exhibit­232 being a photo
copy   of   the   will   at   Exhibit­202   and   the   thumb  impressions   of
Hirabai having been obtained separately, there was bound to be
some difference in that regard.  Hirabai was in good physical and
mental condition  as was deposed by DW­1.  Failure on the part of
PW­2 in  identifying  the  photograph  of Hirabai  was also not a
suspicious   circumstance   inasmuch   as   the   will   having   been
executed in the year 1981 and said witness having deposed after
almost twenty years, there was bound to be some difficulty in
identifying the executor of the will.  In any event neither were the
negatives   of   the   photographs   placed   on   record   nor   was   any
photographer examined.  As the plaintiff was already in possession
of the suit  property as a lessee pursuant to the lease deed at
Exhibit­214, there was no occasion for the plaintiff to refer to the
said will at any earlier point of time.  It was only on account of the
dispute   being   raised   by   the   defendants   that   the   plaintiff   was
required to file the suit by referring to the said will in the year
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1987. It was thus submitted that the will was duly proved in the
light of provisions of Sections 61 and 63 as well as Section 69 of
the Indian Evidence Act and therefore both the Courts recorded a
perverse finding while discarding said will.   In that regard the
learned   Senior   Counsel   placed   reliance   on   the   following
judgments:
(1) Madhukar D. Shende vs. Tarabai Aba Shedage (2002)
2 SCC 85.
(2) Leela Rajagopal and Ors. v. Kamala Menon Cocharan
and Ors. AIR 2015 SC 107.
(3) Rajgopal vs. Kishan Gopal and anr AIR 2003 SC 4319.
(4) Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora
and anr. AIR 1974 SC 1999.
(5) Mahesh Kumar V Vinod Kumar and ors. AIR 2012 SCW
2347.
(6) Naresh Charan Das Gupta v. Paresh Charan Das Gupta
and anr. AIR 1955 SC 363.
(7) Laxman Ganpati Khot and others v. Anusuyabai and
anr. AIR 1976 Bom. 264.
(8) Ramdas Bhatu vs. Anant Chunilal 2006 (6) Mh.L.J.
571.
(b) In   addition   to   the   aforesaid,   the   learned   Senior
Counsel   referred   to   the   observations   in   paragraph   17   of   the
judgment of the appellate Court to the effect that the plaintiff had
failed to refer the will at Exhibit­202 to the Finger Print Expert for
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verifying the thumb impression of Hirabai.   For said purpose he
referred to Civil Application Nos.293/2017 that was filed on behalf
of   the   original   plaintiff   seeking   permission   to   file   additional
documents in the form of the opinion of the Finger Print Expert.
Alternatively, it was prayed that the thumb impression on Exhibit­
202 be directed to be examined by the Thumb Impression Expert.
According to the learned Senior Counsel before the trial Court
there  was  no  serious  dispute  raised with regard  to  the  thumb
impression   of   Hirabai   and   hence,   the   plaintiff   did   not   feel
it necessary to make such application before the trial Court.  As the
first appellate Court had taken into consideration absence of any
evidence being led with regard to the said thumb impression and
had   treated   the   same   as   a   suspicious     circumstance,   this
application was moved by relying upon the provisions of Order XLI
Rule 27 of the Code.  If such evidence was permitted to be brought
on record, the same would enable the Court to adjudicate this
question in a better manner.
(c) It could not be said that the plaintiff had accepted,
admitted and acted upon the family settlement dated 20­11­1982.
Hence, there was no question of she being estopped by conduct in
challenging the same.  Referring to various clauses of this family
settlement, it was submitted that the property therein was that of
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Rekhchand.  Hirabai’s property remained with her which could be
gathered   from   the   documents   at   Exhibit­216,   221   and   222.
Referring to the judgment of the appellate Court in Regular Civil
Appeal No.2 of 2001 that arose out of the earlier suit filed by the
plaintiff, it was submitted that the family arrangement was on
record   of   those   proceedings   and   it   was   held   therein   that   the
property of Rekhchand was the subject matter of that suit.  As no
relief was sought with regard to said properties, there was no
question of any estoppel operating.  As 1/8th share was given to
the plaintiff in the said family arrangement, it was clear that the
property of Rekhchand was its subject matter.  This arrangement
also took place during the life time of Hirabai who was shown as
party no.3 therein.  As the plaintiff did not receive any share in the
property of Hirabai, she was entitled to seek partition from her
undivided estate.   Reference was made to the judgment of the
Hon’ble   Supreme   Court   in  Seethalakshmi   Ammal   v.
Muthuvenkatarama AIR 1998 SC 1692 in that regard.
(d) That the trial Court while answering issue no.5 had
held that the defendants had failed to prove the partition dated
9­1­1983 between them and Hirabai.  Though the said defendants
as   respondents   in   Regular   Civil   Appeal   No.60/2012   had   filed
application below Exhibit 22 for challenging these findings, the
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appellate Court by order dated 16­1­2014 had rejected the said
application filed under provisions of Order XLI Rule 22 of the
Code.  It was therefore not permissible for the said defendants to
challenge said findings of the trial Court. It was however fairly
submitted by the learned Senior Counsel that the findings recorded
in paragraph 7 of the judgment of the appellate Court in  Regular
Civil Appeal No.2/2001 that the family settlement dated 9­1­1983
being a document of family arrangement was not compulsorily
registrable and therefore, admissible in evidence had become final.
It was, therefore, submitted that in the light of the
cross objections filed by the plaintiff, the will dated 18­10­1981
(Exhibit­202) deserves to be accepted.  However, if that will was
held to be not validly proved, the plaintiff would be entitled to rely
upon the family settlement dated 20­11­1982 (Exhibit­244) for
claiming a share in the joint family property.
12. Shri V. R. Choudhari, learned Counsel appearing for
respondent no.2 who was the original defendant no.4 adopted the
arguments   of   learned   Senior   Counsel   for   the   appellants   –
defendant nos.1 to 3.
13. In   reply   to   the   aforesaid   arguments,   Shri   K.   H.
Deshpande, learned Senior Advocate submitted that there were no
pleadings on behalf of the plaintiff that the undated will at Exhibit­
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404   was   executed   prior   to   the   will   at   Exhibit­202.     As   the
document of family arrangement dated 20­11­1982 was scribed by
the plaintiff’s husband, a reference to the will dated 18­10­1981
was   necessary.     Absence   of   such   mention   indicated   that   the
plaintiff was satisfied with what she had received.  Hirabai being a
party to the partition deed at Exhibit­243, it could not be said by
the plaintiff that Hirabai had disowned this document.  Once the
will   dated   18­10­1981   was   discarded,   this   document   become
relevant. Relying upon the decision in Union of India vs. Ibrahim
Uddin and another (2012) 8 SCC 148 it was submitted that no case
for leading additional evidence was made out by the plaintiff.
14. I have heard the learned Counsel for the parties at
length  and  with  their  able  assistance, I  have  also  perused  the
records of the case.
AS TO SUBSTANTIAL QUESTION OF LAW NO.1:
15. This substantial question of law pertains to the validity
of   the   will   dated   28­10­1981   (Exhibit­202).     According   to   the
plaintiff, this will was executed by Hirabai and her property was
bequeathed in favour of the plaintiff.  It was pleaded that this will
was executed when Hirabai was in good health and in sound mind.
As the defendants were selling some of the properties that were
bequeathed to the plaintiff, it  became necessary to file the present
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proceedings.   In   the   written   statement   filed   on   behalf   of   the
defendant nos.1 to 4, it was denied that Hirabai in good health
and   sound   mind   and   that   she   had   executed   a   last   will   dated
18­10­1981.  It was pleaded that the properties sought to be sold
were within their own rights and the plaintiff had no concern with
the   same.   It   was   pleaded   that   the   alleged   will   was   false   and
fabricated.   The defendants then relied upon a subsequent will
dated 26­5­1983 executed by Hirabai and thus contended that the
will dated 18­10­1981 was a false and fabricated document.
Both the Courts have after considering the evidence on
record   referred   to   various   suspicious   circumstances   for   not
accepting   the   claim   of   the   plaintiff   based   on   the   will   dated
18­10­1981.   It has been found that though it was claimed that
such will was executed on 18­10­1981, it found no reference in the
documents prepared subsequently being the lease deed dated 30­
7­1982   (Exhibit­214),   family   arrangement   dated   20­11­1982
(Exhibit­244)   and   the   partition   deed   dated   9­1­1983   (Exhibit­
243).  It   was  then   found  that   the   will   had  been   got   typed  by
bringing a typewriter at the place of its preparation.  It was scribed
in Hindi while Hirabai was illiterate and could neither  read nor
write Hindi. The presence of PW­2 – Shaineshchandra was found
to be a bit unnatural as he was not well acquainted with  Hirabai.
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Said PW­2 also could not identify the photograph of Hirabai when
he was confronted with the same in his cross­examination.   The
appellate Court further observed that the plaintiff did not take any
steps to have the thumb impression of Hirabai examined by an
expert.
16. On behalf of the plaintiff, Civil Application No.293/
2017 has been moved seeking permission to file on record a copy
of the opinion of an Hand Writing expert.  An alternate prayer is
also made to have the thumb impression of Hirabai examined by
an   expert.   This   application   is   purportedly   under   provisions   of
Order XLI Rule 27 of the Code. According to the plaintiff, the
defendants had not seriously disputed that the thumb impression
on the will dated 18­10­1981 was that of Hirabai.  In view thereof,
this application was not moved before the first appellate Court nor
was it found necessary by the plaintiff to have the opinion of such
expert   before   the   trial   Court.   For   showing   her   bonafides,   the
plaintiff intended to dispel all doubts about the will bearing the
thumb   impression   of   Hirabai   and   hence,   this   application   was
moved.
According   to   the   defendants,   the   plaintiff   had   not
satisfied the ingredients of Order XLI Rule 27 of the Code and that
the application was moved for delaying the proceedings.
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17. On hearing the learned Counsel in that regard, I find
that this application moved by the plaintiff does not deserve to be
allowed.   The plaintiff being the propounder of the will dated
18­10­1981, it was for her to remove all circumstances that could
cast a doubt on the execution of the will.  In the written statement,
it had been denied that such will was executed by Hirabai. The
reasons   furnished   for   not   obtaining   the   opinion   of   Thumb
Impression expert either before the trial Court or first appellate
Court   do   not   appear   to   be   convincing.   The   ingredients   for
permitting the plaintiff to rely upon the additional evidence under
provisions of Order XLI Rule 27 of the Code also are not satisfied.
On considering the entire evidence on record, I do not find the
necessity   to   rely   upon   such   additional   evidence   for   a   proper
adjudication of the appeal. After considering the law laid down in
Ibrahim Uddin and another (supra) I find that the prayer made in
the   application   for   relying   upon   the   opinion   of   the   Thumb
Impression expert dated 9­3­2017 as well as the alternate prayer
for   obtaining   such   opinion   does   not   deserve   to   be   granted.
Accordingly, said application stands rejected.
18. It   is   necessary   to   briefly   refer   to   the   suspicious
circumstances that have been  taken into consideration by both the
Courts.  An important circumstance that has gone unexplained is
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the absence of any reference to the will dated 19­10­1981 in the
lease   deed   dated   30­7­1982,   family   arrangement   dated
20­11­1982   and   the   deed   of   partition   dated  9­1­1983.   Besides
these documents, Regular Civil Suit No.238/1984 had been filed
by   the   present   plaintiff   seeking   the   relief   of   removal   of
encroachment along with a prayer for perpetual injunction.  This
relief was sought with regard to the properties referred to in the
Schedule of the plaint. Reference in that plaint was made to the
family   arrangement   dated   20­11­1982   as   well   as   the   partition
dated 9­1­1983.   However, there was no reference made in that
plaint to the will dated 18­10­1981. Be it noted that Hirabai was a
party to all these documents and it would have been  natural for
her to have referred to the will executed by her on 18­10­1981 in
the   documents   executed   subsequently.   There   is   no   justifiable
reason for the absence of any reference to the will in the aforesaid
documents. Moreover, by executing said will as alleged, rights had
been conferred on the plaintiff by Hirabai.  In such situation, if the
will was already executed on 18­10­1981 then there was no reason
for executing lease dated 30­7­1982 again by Hirabai in favour of
the plaintiff with regard to the same property.  Said lease was for a
period of sixty years and Hirabai was aged about 75 years when
the lease deed was executed.  The reason furnished that the lease
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was executed to enable Hirabai to receive lease amount does not
appear to be very convincing.
The   aforesaid   aspects   are   clearly   evident   from   the
record and absence of reference to the execution of the will in the
subsequent documents dealing with the right in said properties to
which the executant was the party does not appear to be very
natural.
19. The will at Exhibit­202 has been type written in Hindi.
It has come on record that Hirabai was illiterate and was speaking
Marwadi language. PW­2 in his deposition has further admitted
that the portion marked ‘D’ was not narrated by Hirabai when the
rough notes were being taken by him.   The exclusion of other
relatives including defendant nos.1 to 3 which is sought to be
justified on account of strained relations by referring to the letter
at Exhibit­198 also does not appear very convincing.  This letter at
Exhibit­198 is dated 19­3­1977 written by the defendant no.1 to
the plaintiff.  Similarly, the thumb impression of Hirabai appears
only on the first and third page of the will. Absence of the thumb
impression on the second page of the will is sought to be explained
by stating that as the thumb impression was put on the first and
third page, its absence on the second page was not very material.
Further the description of the property sought to be bequeathed
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has not been mentioned in the said will and it is stated in general
terms   that   all   properties   in   which   Hirabai   had   a   right   stood
bequeathed. Though it is true that the photographs with which
PW­2 was confronted were not duly proved as required in view of
the law laid down in  Laxman Ganpati Khot and Ramdas Bhatu
Chaudhary (supra), that aspect by itself would not assist the case
of the plaintiff.
20. I find that both the Courts on consideration of the
entire   evidence  on   record   have   found  that  there   were   various
suspicious circumstances surrounding the alleged execution of  will
dated 18­10­1981.   The plaintiff has been found to have been
unable to remove those suspicious circumstances by leading cogent
evidence.  The plaintiff as propounder of the will failed to prove its
execution in a manner that would warrant its acceptance as the
last will of Hirabai. As held in Dhannulal vs. Ganeshram (2015) 12
SCC 301, proof of a will stands on a higher degree in comparison
with   other   documents.   On   a   consideration   of   the   cumulative
effective of the entire material on record and after scrutinizing the
same in the light of the ratio of the decisions cited by both parties,
I do not find any reason to disregard the findings concurrently
recorded by both the Courts as regards invalidity of will dated 18­
10­1981. The appreciation of evidence in that regard cannot be
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said to be perverse nor can it be said that such conclusion arrived
at by both the Courts was an impossible conclusion not warranted
by the evidence on record.   Substantial question of law No.1 is
answered   by   holding   that   the   rejection   of   the   will   dated
18­10­1981 projected by the plaintiff is not a perverse conclusion.
AS TO SUBSTANTIAL QUESTION OF LAW NOS.2 & 4:
21. On 20­11­1982 a family arrangement at Exhibit­244
was entered into between the parties. The need for this family
arrangement was felt on account of the death of the husband of
the defendant no.1 as well as aunt of the husband of defendant
no.1. The joint property of the Hindu undivided family had not
been   partitioned   after   the   death   of   Rekhchand,   husband   of
defendant no.1.  The defendant no.1 intended that a male child be
adopted to continue the family tree.  Hence, with a view to avoid
any dispute pursuant to such adoption, it was resolved to make an
arrangement of the family properties before hand.   The plaintiff
who had 1/8th share in the joint family property was given various
properties   in   lieu   of   that   share.     Hirabai   had   consented   for
adoption of a male child and on that count also she gave some
properties from her half share to the plaintiff.  In lieu thereof the
defendant nos.1 to 3 each agreed to pay Hirabai Rs.100/­ per
month. On receiving various properties in the family arrangement,
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the   plaintiff   no.1   relinquished   all   her   rights   over   the   other
properties of the joint family. The plaintiff, defendant nos.1 to 3 as
well as Hirabai were signatories to this family arrangement that
was scribed by the husband of the plaintiff.
On 31­12­1982, there was an oral partition between
Hirabai and defendant nos.1 to 3. This oral partition was then
scribed on 9­1­1983 (Exhibit­243).  In this document a reference
has been made to the family arrangement dated 20­11­1982 and
the rights given to the plaintiff therein. Excluding those properties
in which the plaintiff had been given her rights, Hirabai and the
defendant nos.1 to 3 partitioned the remaining properties.
22. The   plaintiff   on   16­8­1984   filed   Regular   Civil   Suit
No.238/1984 pleading that on 20­11­1982 she was given certain
properties   exclusively.   The   said   suit   was   filed   against   present
defendant no.1 and defendant no.4 praying that they be directed
to remove encroachment in the properties to which the plaintiff
had an absolute right.  It is pertinent to note that in the plaint of
that suit at Exhibit­203 there is a clear reference to the family
arrangement   dated   20­11­1982   with   further   pleading   that   the
plaintiff had become the absolute owner of those properties by
virtue   of   said   family   arrangement.     This   document   of   family
arrangement as well as copy of the partition deed dated  9­1­1983
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were filed on record along with the plaint.  The averments of the
plaintiff in that suit, therefore, clearly indicate that the plaintiff
had accepted, admitted and acted upon the family settlement at
Exhibit­244 as well as memorandum of partition dated 9­1­1983.
In that view of the matter, it was open for the defendants to
canvass that the findings recorded against issue no.5 by the trial
Court were incorrect.   In any event, the appellate Court while
rejecting   application   below   Exhibit   22   had   observed   that   said
grounds could be argued in the appeal.
23. The aspect of estoppel in the matter of accepting a
family arrangement   and  subsequently trying  to  resile  from  the
same   has   been   considered   in  Kale   and   others   (supra)  by   the
Hon’ble   Supreme   Court.     The   following   observations   in   said
decision apply to the case in hand:
“9.           By   virtue   of   a   family   settlement   or
arrangement   members   of   a   family   descending
from a common ancestor or a near relation seek to
sink   their   differences   and   disputes,   settle   and
resolve their confrlicting claims or disputed titles
once for all in order to buy peace of mind and
bring about complete harmony and good will in
the family.  The family arrangements are governed
by   a   special   equity   peculiar   to   themselves   and
would be enforced if honestly made.
The   object   of  the   arrangement   is   to
protect the family from long­drawn litigation or
perpetual   strifes   which   mar   the   unity   and
solidarity of the family and create hatred and bad
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blood between the various members of the family.
The Courts have, therefore, leaned in
favour of upholding a family arrangement instead
of   disturbing   the   same   on   technical   or   trivial
grounds.   Where the Courts find that the family
arrangement   suffers   from   a   legal   lacuna   or   a
formal defect the rule of estoppel is pressed into
service   and   is   applied   to   shut   out   plea   of   the
person who being a party to family arrangement
seeks to unsettle a settled dispute and claims to
revoke   the   family  arrangement   under   which   he
has himself enjoyed some material benefits.”
24. The   evidence   on   record   indicates   that   initially   on
20­11­1982, the family members before the adoption of defendant
no.4 gave share of the joint family property to the plaintiff.  The
remaining property was then partitioned between the defendant
nos.1 to 3. In other words, those properties that were not allotted
to   the   plaintiff   as   per   Exhibit­244   were   subsequently   divided
between other family members as per Exhibit­243.   The plaintiff
enjoyed  the  properties  received  by  her  as  per  Exhibit­244  and
made no grievance in that regard till the year 1987 when she came
up with her stand that by virtue of will dated 18­10­1981, she was
the   owner   of   the   suit   property.     Absence   of   any   grievance
immediately   after   the   family   arrangement   was   scribed   by   her
husband and which was signed by the plaintiff is a factor that
cannot be ignored. The aforesaid conduct of the plaintiff clearly
estops her from contending that both these documents did not
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deserve to be taken into consideration for want of registration.
Moreover, in Regular Civil Appeal No.2/2001 that arose out of
dismissal of Regular Civil Appeal No.238/1984, the learned 2nd
Additional   Sessions   Judge,   Chandrapur   while   considering   the
family arrangement dated 20­11­1982 has in paragraph seven of
the   judgment   recorded   a   finding   that   said   document   was   not
compulsorily   registrable   and   therefore   admissible   in   evidence.
This finding has attained finality in the proceedings to which the
present   plaintiff   and   the   defendant   nos.1   and   4   are   party.
Similarly, on a plain reading of the memorandum of partition at
Exhibit­243, it can be found that it refers to the oral partition that
had taken place on 31­12­1982 between the defendant nos.1 to 3
and   Hirabai.  It   was   only  scribed   on   9­1­1983.  As   observed   in
Roshansingh  (supra), the subsequent list of properties prepared
pursuant to earlier agreement of partition does not require any
registration. The first appellate Court committed an error when
it held that the family settlement at Exhibit­244 was improperly
stamped and   unregistered due to which it could not be read in
evidence. The trial Court had rightly found that the plaintiff had
acted   upon   these   documents   and   was   thus   estopped   from
challenging the same.
Accordingly, substantial question of law Nos. 2 and 4
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are answered by holding that the plaintiff having accepted and
acted   upon   family   settlement   as   well   as   the   memorandum   of
partition,   she   was   estopped   from   challenging   the   same.     Said
documents   even   otherwise   did   not   require   any   compulsory
registration under Section 17 of the Registration Act, 1908.
AS TO SUBSTANTIAL QUESTION OF LAW NO.3:
25. Perusal   of   the   family   settlement   dated   20­11­1982
(Exhibit­244)   indicates   the   purpose   of   making   the   family
arrangement.  The adoption of a male child was being pondered
over as the defendant no.1 had three daugthters. After recognizing
the 1/8th share of the plaintiff in the joint family property, various
properties were given to the plaintiff in lieu of her share in the
joint family property. Hirabai from her half share had also given
some property to the plaintiff as mentioned in clause (6) of this
family arrangement. In lieu thereof  the plaintiff gave up her rights
in   other   properties.   These   remaining   properties   were   then
partitioned on 31­12­1982 and scribed accordingly on 9­1­1983.
Thereafter,   on   21­4­1983   the   defendant   no.4   was   taken   in
adoption.   As   referred   to   earlier,   the   document   of   family
arrangement   has   to   be   given   due   importance   as   it   was   got
executed to enable adoption of a male heir to continue the family
tree. It was in lieu thereof that the plaintiff got certain properties
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from the undivided share of Hirabai after which she gave up her
rights in the remaining estate of Rekhchand and Hirabai.   This
document having been scribed by her husband and no grievance in
that regard having been made shortly thereafter, it cannot be said
that the plaintiff did not receive any share in the property from the
share of Hirabai. She was, therefore, not entitled to claim partition
in the undivided   estate of Hirabai.   The first  appellate Court
misconstrued both the documents at Exhibits­244 and 243 when it
held otherwise.   On a plain reading of both these documents, it
cannot be said that the plaintiff was deprived of her share in any
manner whatsoever. Hence, the ratio of the decision relied upon
by the learned Senior Counsel for the plaintiff cannot be applied to
the facts of the case. The substantial question of law No.3 stands
answered accordingly.
26. Thus, as a result of the answers given to the aforesaid
substantial questions of law, the judgment of the first appellate
Court to the extent it has granted 1/4th share in the suit property
to the plaintiff is liable to be set aside. The finding with regard to
the non­acceptance of will dated 18­10­1981 is however liable to
be   confirmed.     As   a   result   thereof,   the   judgment   of   the   first
appellate Court to that extent  is set aside.   As a consequence
thereof, the judgment of the trial Court dismissing the suit has to
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be restored.
27. In the result, the following order is passed:
(a) The second appeal is allowed.
(b) The cross­objection filed by the original plaintiff stands
dismissed.
(c) The judgment of the first appellate Court in Regular
Civil Appeal No.60 of 2012 dated 18­9­2014 is quashed and set
aside.
(d) The judgment of the trial Court in Special Civil Suit
No.129 of 1987 is restored.  There would be no order as to costs.
JUDGE
/MULEY/
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