Mathialagan, Sarkar Uduppam vs P. Kandasamy Gounder and Chellayee

K. Sampath, J.—The first defendant in O.S. No. 278/92 on the file of the Sub Court, Namakkal, is the appellant in the appeal. The first

respondent herein filed the suit for partition and separate possession of his share in various items of properties. He is the father of the appellant/first

defendant. His wife is the second defendant in the suit/second respondent herein. The 4th defendant has 1/4th share in items 6 and 7, the 3rd

defendant has 3/4th share in item 1 and the 4th and the 5th defendants claim 3/6th share in items 6 and 7.

The case of the plaintiff is as follows:

The first defendant is the son of the plaintiff. The second defendant is his wife. He had another son by name Shanmugam and he died in an

accident. Except for suit item 2, the other items were purchased for family benefit and are being enjoyed as joint family properties. Since the first

defendant along with the second defendant tried to create threat of his life, the plaintiff had to leave the place. The second defendant had joined

hands with the first defendant and denying the plaintiff''s rights and had created documents, she had therefore been made a party in the suit.

The plaintiff asked for his share of the property on 15-8-1990 and since the first defendant refused and attempted to beat him and kill him, the

plaintiff went away and stayed with his relatives in Kalathur. The tractor purchased by the plaintiff and in his enjoyment TCM-5067 was forcibly

removed by the first defendant and others after beating up the plaintiff. There were complaints and the matter went up to this Court and in this

Court, the first defendant claimed that there was a family arrangement on 15-4-1988, pursuant to which the plaintiff and the second defendant

agreed to receive Rs. 4000/- and 6 bags of paddy per year and to evidence the same, two receipts were shown in the Court and only pursuant to

the family arrangement, the properties were in the possession of the first defendant. There was no such family arrangement. It was a collusive one

being brought about by defendants 1 and 2. In these circumstances, the suit came to be filed.

Defendants 1 and 2 filed a written statement denying the ill treatment meted out to the plaintiff and the creation of documents and stating further

that the plaintiff married a second time on 28-5-1990 and left the family, that the family arrangement was a true document and ever since the first

defendant was in possession and enjoyment of the suit properties and that all the properties belonged to the first defendant absolutely.

On the above pleadings, the trial Court framed the following issues:

Whether the plaintiff is entitled to partition and separate possession of 1/12th share in item 1, 1/3rd share in items 2 to 5 and 1/6th share in items

6 and 7, all of A Schedule, and 1/3rd share in B Schedule?

Whether there is cause of action for the suit?

Whether the Court fee paid is correct?

Whether defendants 1 and 2 have improved the properties by spending Rs. 70,000/-? And

To what relief the plaintiff is entitled to?

On the side of the plaintiff, he examined himself and marked Exs.A-1 to A-7. On the side of defendants 1 and 2, the second defendant

examined herself as D.W.1, the first defendant as D.W.2 and two other witnesses as D.Ws.3 and 4. Exs.B-1 to B-7 were marked on their side.

Exs.C-1 to C-10 were marked as Court documents.

On the materials placed, the learned Subordinate Judge found that the family arrangement set up by defendants 1 and 2 was not true and valid,

that there was cause of action for the suit, that the plaintiff was entitled to 1/6th share in A Schedule items 6 and 7 and 1/3rd share in B Schedule

tractor, that in respect of the other properties, he had not filed the necessary documents and therefore, he was not entitled to any share, that proper

Court fee had been paid, that defendants 1 and 2 had not established that they had improved the properties by spending Rs. 70,000/- and so

holding by judgment and decree dated 23-1-1995 decreed the suit for partition and separate possession of plaintiff''s 1/6th share in items 1 and 6

and 1/3rd share in B Schedule and directed him to take out separate proceedings for mesne profits under Order 20 Rule 12 of the Code of Civil

Procedure.

It is as against that, the first defendant has filed the appeal.

In so far as the lower Court has refused relief to the plaintiff for items 1 to 5, the plaintiff has filed cross objection in Cross Objection No. 17/96.

The cross objector/plaintiff has also filed an application for reception of additional evidence for the purpose of showing that the items in respect of

which the relief was refused by the lower Court on the ground that he had not produced any documents, were also joint family properties.

The petition for reception of additional evidence is opposed and the decision of the Supreme Court in Roop Chand Vs. Gopi Chand Thelia, is

relied on.

Mr. R. Gandhi, learned Senior Counsel appearing for the appellant, submitted that the lower Court was in error in rejecting the family

arrangement, that if the family arrangement was accepted, then the plaintiff would not be entitled to any share and he has to rest content with Rs.

4000/- and 6 bags of paddy to be shared along with his second wife. The learned Senior Counsel also submitted that the lower Court was in error

in granting decree in respect of items 6 and 7 in A Schedule property without applying its mind and that it belonged to one Sivagami Ammal and

she was in possession of the same; so far as B Schedule property tractor is concerned, the lower Court had not applied its mind to the fact that the

first defendant had been in continuous possession and enjoyment of the same and that he was the rightful owner.

Per contra, Mr. R. Subramanian, learned Counsel for the first respondent, submitted that the lower Court had rightly found that the family

arrangement set up was not a true document and it did not contain the signature of the plaintiff and once the family arrangement got rejected, then

on the basis of the vital admission in the written statement that the properties were joint family properties, the lower Court ought to have granted

relief of partition in respect of all the items. The learned Counsel further submitted that in as much as the lower Court had commented that the

plaintiff had not produced documents to substantiate his case that items 1 to 5 belonged to him and in those circumstances, the present application

for reception of additional evidence had been taken out. So far as the original documents are concerned, they were with the first defendant and

only because of that the plaintiff could not produce certified copies before the Court.

In our view, the matter can be decided with regard to the various items on the pleadings in the case. So far as suit item 1 is concerned, the

plaintiff''s case is that it was purchased out of joint family nucleus and the compensation received for the death of his other son Shanmugam in the

name of the second defendant in Court auction on 10-10-1984. He claimed 1/4th undivided share. The defence is that the second respondent

purchased it in Court auction and therefore it is her absolute property. No doubt, no document was filed before the lower Court. The sale

certificate issued by Namakkal District Munsif''s Court in E.P. No. 35/82 is sought to be filed as additional document No. 1 before this Court. It is

seen from that document that the plaintiff in the present suit was a decree holder before the Namakkal District Munsif''s Court. However, in his

oral evidence, the plaintiff as P.W.1 in cross-examination has stated that he does not want a share in item 1, though the first defendant as D.W.2

has admitted that item 1 of A Schedule was purchased out of family funds in the name of the second defendant. Apparently, the first defendant was

not sure whether he would get the property ultimately from the second defendant. It is also in evidence that the first defendant married against the

wishes of his parents and there was also some problem in that regard. He strangely disowned his wife. The matter went up to the Supreme Court

and ultimately he had to relent and accept the marriage and take back his wife. This, of course, is outside the point. In as much as the plaintiff has

stated in no unclear terms that he does not want a share in plaint item 1, the dismissal of the suit by the lower Court in this regard is upheld.

Let us now dispose of the question relating to the validity of Ex.B-3 family arrangement, which had come into existence on 15-4-1988. The

lower Court found that there were vital discrepancies in the oral evidence of D.Ws.1 to 4. The first defendant as D.W.2 in his oral evidence stated

that the document was executed on 15-4-1988 as the plaintiff was not behaving properly. However, in cross-examination he had stated that some

differences between him and his father arose in 1990, that 4 or 5 months prior to that the plaintiff had intimacy with one Banumathy and if really no

document had come into effect, it could have been only after 1990, that the first defendant''s wife had in her evidence stated that the muchalika

came into existence in respect of the compensation received for her other son''s death and spent by them and that she did not know as to who

wrote that document nor its contents. The second defendant had also said that the document did not contain the plaintiff''s signature. One of the

witnesses to the document, D.W.3, in his evidence had said that the plaintiff and defendants 1 and 2 were all living together and that there was no

quarrel between them, that 4 or 5 days prior to the date of the document, she was summoned to write the document. P.W.3, another witness, has

also given conflicting versions as to what happened. He could not also say anything clearly about the contents and the affixing of thumb impression

or the signing of the document. We cannot fault the lower Court for coming to the conclusion that the document had been brought about for the

purpose of the suit. The conclusion reached by the lower court that Ex.B-3 is not true or valid has to be upheld and accordingly it is upheld.

Suit item 2 is claimed to be the ancestral property of the plaintiff. There is no denial in the written statement. The lower Court dismissed the suit

with regard to suit item 2 only on the ground that the plaintiff had not produced any document. When there was no denial in the written statement

as to the character of the property and there is no cross-examination as regards the nature of suit item 2, the lower Court was in error in refusing

relief to the plaintiff on the ground that he did not produce any document. It is claimed that suit item 3 was purchased out of joint family nucleus.

The sale deed dated 29-3-1988 is sought to be produced as additional document. It shows that the property stands in the name of the plaintiff.

Even with regard to this, there is no denial in the written statement. There is no cross-examination. Suit item 3-A is covered by a sale deed dated

30-3-1988 which is sought to be marked as additional document No. 4. Suit items 4 and 5, it is claimed, were purchased out of joint family

nucleus. The sale deed in respect of suit item 4 is sought to be marked as additional document No. 1. The sale deed stands in the name of the

plaintiff. An extent of 1 acre 86 cents is covered by the sale deed. There is no denial in the written statement. There is no cross-examination. Suit

items 4 and 5 are the same excepting 4 cents in S. No. 110/5-C. It is claimed that it was purchased out of joint family nucleus. It was not denied.

There was also no cross-examination.

So far as suit items 6 and 7 are concerned, the lower Court has granted a decree accepting the case of the plaintiff that they were purchased

out of joint family funds. Ex.A-6 relates to suit item 6. It is a sale deed dated 10-3-1986. Ex.A-7 relates to suit item 7. It is also dated 10-3-1986.

So far as suit B Schedule property is concerned, the plaintiff''s case is that it was purchased out of joint family funds. The R.C. Book stands in the

name of the plaintiff. D.W.1 admits that the loan was repaid by the plaintiff. The lower Court has rightly granted a decree in respect of suit items 6

and 7 and B Schedule properties on the basis of the documents produced by the plaintiff.

The sheet anchor of the defendants'' case is Ex.B-3, the alleged family arrangement. We have found that it is a fraudulent document brought

about for the purpose of the case to claim absolute rights in the suit properties. The lower Court has in paragraph 11 of its judgment thoroughly

and exhaustively considered the document and held that it is not a true document, that it had not been written on the date it bears.

As regards reception of additional evidence, the appellant relied on the judgment of the Supreme Court in Roop Chand Vs. Gopi Chand

Thelia, . In that case the Supreme court in deciding the application for reception of additional evidence observed that even if the respondent in that

case was not able to file the documents before the trial Court, he could have filed the documents before the Appellate Court and sought its

permission to file them as additional evidence, that even before the High Court, there was no attempt in this behalf and that there was no

satisfactory explanation offered by the respondent for having failed to produce the documents before the Courts below or the High Court and in

those circumstances, there was no justification to allow the petition and permit the respondent before it to file the documents in question as

additional evidence.

In the present case, the plaintiff had definitely stated that the original documents were only with the first defendant and therefore he could not

produce them before the trial Court. Even otherwise, when the case of the plaintiff had been practically admitted by defendants 1 and 2 with

regard to the character of the properties, it was wholly unnecessary for them to substantiate the obvious by filing any document. Now that the

plaintiff seeks to mark the documents and has also given satisfactory explanation for not producing the documents before the lower Court and no

counter is also filed, there is a clear case made out for receiving the documents as additional evidence. The C.M.P. is allowed. The documents are

received in evidence and marked as Exs.A-8 to A-12.

Consequently, we dismiss the appeal by the first defendant and allow the cross objection by the plaintiff except with regard to suit item 1.