Dharanibai @ Prema vs Tharangaraman and Hamsabai (given up)

G. Rajasuria, J.—The parties are referred to here under according to their litigative status and ranking before the trial court.

A recapitulation and resume of facts which are absolutely necessary and germane for disposal of the second appeal wound run thus:

(a) The Plaintiff Dharanibai filed the suit in O.S. No. 7792 of 1997 before the trial court seeking the following reliefs:

(a) Dividing the property described in the plaint schedule hereto into three parts and to allot one such share to the Plaintiff by passing a preliminary

decree

(b) Appoint an advocate commissioner to effect division by metes and bounds in implementation of the preliminary decree

(c) Directing the Defendant herein to pay the Plaintiff the cost of the suit

(d) Granting such further or other reliefs as would be deemed appropriate in the circumstances of the case (Extracted as such)

(b) Written statement was filed by the first Defendant resisting the suit,

(c) Whereupon, the trial court framed the relevant issues.

(d) The Plaintiff Dharanibai @ Prema examined herself as PW1 and Exs. A1 to A7 were marked. On the side of the Defendants, Dharagaraman,

the first Defendant was examined as DW1 and Exs. B1 to B4 were marked.

(e) Ultimately, the trial court dismissed the suit as against which the Plaintiff filed an appeal before the first appellate Court for nothing but to be

dismissed confirming the judgment and decree of the trial court. Challenging and impugning the decree and judgment of both the courts below, the

Plaintiff has come forward with this second appeal on various grounds inter alia to the effect that the courts below failed to take into account the

factual as well as legal issues.

My learned predecessor, at the time of admission of this second appeal, framed the following substantial questions of law:

(i) When the Appellant has denied the execution of the Release deed and when the Respondent contends that there is a written registered Release

deed without production of the written statement as required u/s 92 of the Indian Evidence Act, 1872, can the Courts below rely upon the oral

evidence tendered by the first Respondent?

(ii) When the Respondent has not produced the registered Release Deed and the Will executed by the mother either after probate or without

probate can the Courts below dismiss the suit for partition by a legal heir?

(iii) Without admitting and assuming that such release deed is valid is not Appellant entitled to 1/3rd share out of the mother''s interest in the suit

property who is entitled to half share in the property and died after execution and registration of the release deed. (Extracted as such)

Heard both sides. The incontrovertible or at least the undeniable facts would run thus:

(a) The Plaintiff is the sister of the Defendants. The Plaintiff and the Defendants are children of Govindasamy Naidu and Pushpavathi Ammal. The

said Govindasamy Naidu was the owner of the suit property and it was his self-acquired property. He died on 01.10.1964 leaving behind his wife

Pushpavathi Ammal and the three children, the Plaintiff and Defendants. According to the first Defendant, at the time of arranging the marriage of

the Plaintiff, release deeds were obtained from the Plaintiff and the second Defendant in favour of himself and Pushpavathi Ammal as such they

became absolute owners of the suit property. Subsequently, on 11.09.1994, Pushpavathi Ammal died after executing a Will, as per the contention

of the first Defendant, in his favour. But the said Will was not probated and it was also not produced before the Court and proved as per Section

68 and 69 of the Indian Evidence Act.

The gist and kernel of the arguments of the counsel for the Plaintiff/ Appellant would run thus:

(a) The Plaintiff, while she was in unmarried state and that too under the custody of her mother, was asked to sign a document during the year

1977 making her to believe that she was signing a mortgage deed. Only on receipt of Ex.A5, the reply notice dated 26.08.1997 to her notice

demanding share in the suit property, she came to know about the document that she signed in the year 1977 was not a mortgage deed but a

release deed as such, she being the legal heir of Govindasamy Naidu and Pushpavathi Ammal, she is entitled to 1/3 share in the suit property. Both

the Courts below failed to consider it and allot share in favour of the Plaintiff and therefore interference of this Court is warranted.

Per contra, in a bid to torpedo and pulverse the arguments as putforth and set forth on the side of the Plaintiff/Appellant, the learned senior

counsel for the first Defendants/first Respondents herein would advance his arguments, which could tersely and briefly be set out thus:

(a) It is too late in the day on the part of the Plaintiff to contend as though she signed only a mortgage deed in the year 1977 and not a release deed

and virtually it is too big a pill to swallow. The Courts below correctly and properly discarded the plea of the Plaintiff and dismissed the suit

(b) The learned senior counsel for the first Defendant would point out that the release deed itself was not produced in the Court since there was no

prayer on the part of the Plaintiff for getting the release deed set aside and in such case, non-production of the release deed by the first Defendant

cannot be taken as fatal to his defence.

While admitting the non-production of the Will or probating the same, the learned senior counsel for the first Defendant would point out that if

liberty is given to the parties concerned to get the Will probated and prove it, the same would be carried out; and for that course, he seeks for

remanding the matter to the lower court, for which the learned senior counsel for the Plaintiff would submit that since much water has flown under

the bridge, it is too late in the day on the part of the first Defendant to make such a prayer and thereby try to set the clock back.

I would like to observe that the Plaintiff herein has not chosen to dispute the very validity of the release deed executed in the year 1977, but she

would contend that it was signed on the belief that it was a mortgage deed. In that event, the Plaintiff ought to have made a specific prayer to the

effect and paid appropriate court fee, but for the reasons best known to her, she has not chosen to do so. The contention of the Plaintiff that the

release deed is a void document and therefore she need not seek such a prayer, cannot be countenanced. Law is well settled that if a party is a

signatory to a particular document and the said party contends subsequently that the document is bad for fraud etc., then the document is certainly

to be treated as a avoidable document and its voidability at his instance should be proved and get the document set aside legally.

I would like to put it differently also. But for the Plaintiff questioning the validity of release deed, the release deed is exfacie and prima facie a

valid document and it does not suffer from any infirmity. Unless there is a specific prayer in the plaint to get the release deed set aside on the

ground of fraud, misrepresentation etc., the release deed has to be construed as a valid document but that was not done so by the Plaintiff. As

such, I am of the considered view that the Plaintiff did not discharge her initial burden cast upon her in challenging the release deed. As such the

release deed should be taken as a valid one.

The factor of not getting the Will probated and also producing the same to prove it in accordance with Section 68 and 69 of the Indian

Evidence Act is fatal to the case of the first Defendant, because, the first Defendant cannot contend that as per the Will, he became the absolute

owner of the entire extent of the suit property after his mother relinquished her half share in the suit property. No more elaboration in this regard is

required.

In the litigative process, once a party fails to take appropriate steps at the appropriate stage, then the question of giving one more opportunity

so as to capitalise the defaulting parties own lapses would not arise. There is no rhyme or reason on the part of the first Defendant in getting the

Will probated and producing it before the Court to prove it as per Section 68 and 69 of the Indian Evidence Act. In this context, I recall the legal

maxim Affirmanti non negating incumbit probation: The burden of proof lies upon him who asserts and not upon him who denies.

It is the first Defendant who claims full ownership over the suit property and in such circumstances, he ought to have adduced evidence

establishing that consequent upon the release deed of the year 1977, the mother of the parties to the lis namely Pushpavathi Ammal and the first

Defendant became owners of the suit property and that his mother settled her half share in his favour, but he failed to do so. The first Defendant is

entitled to half share originally and on the death of Pushpavathy Ammal, her three children namely the Plaintiff and Defendants 1 and 2 are entitled

to 1/3 share in the half share of Pushpavathy Ammal. As such, the Plaintiff is entitled to 1/6 share, the second Defendant is entitled to 1/6 share and

the first Defendant is entitled to 4/6 share.

The learned senior counsel for the first Defendant would raise a legal question as to what would happen to the share of the second Defendant,

who had given up her share before this Court because she was set exporter before the trial court. I would like to observe and hold that this is a suit

for partition. As revealed from the representation of both sides, the second Defendant died leaving behind her legal heirs. Since the second

Defendant did not choose to contest the matter, whatever be her share in the property, her legal heirs would be entitled to the same on the death of

the second Defendant. During the final decree proceedings, the same would be allotted to them by metes and bounds. Therefore, it is open to the

Plaintiff to implead the legal heirs of the second Defendant in the final decree proceedings and it is for the Court to allot the share of the second

Defendant in favour of her legal heirs and they have no independent right to contest the suit because partition suit is entirely on a different footing.

Accordingly, the final decree proceedings should follow.

In the result, the judgment and decree of both the Courts below are set aside and the original suit is decreed to the effect that the Plaintiff is

entitled to 1/6th share, the first Defendant is entitled to another 1/6th share and the second Defendant is entitled to the remaining 4/6 share in the

suit property. Accordingly, the second appeal is allowed. No costs. I make it clear that since the second Defendant died, their legal heirs are

entitled to her share and it is for the Plaintiff to implead them in the final decree proceedings for allotting shares in the suit property to them.

During the pendency of the second appeal, C.M.P. No. 1288 of 2006 was filed for reception of additional documents under Order 41 Rule

27 of CPC. In view of the findings rendered in this second appeal, I feel that the documents sought to be marked are unnecessary and accordingly,

CMP No. 1288 of 2006 is dismissed.