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Judgment
P.R. Shivakumar, J.—The defendants 1 to 5 in the original suit are the appellants in the second appeal. The plaintiffs in the original suit are
the respondents 1 and 2 in the second appeal. Defendants 6 to 8 in the original suit are the respondents 3 to 5 in the second appeal. The first
respondent Baby Animal and the second respondent Devadass as plaintiffs, filed the suit O.S. No. 40 of 2005 on the file of the District Munsif,
Tambaram for the relief of partition claiming 1/9th share in the suit property to each one of them. The claim of the plaintiffs was based on their
contention that the suit property was the absolute property of one Gopal to whom, Baby Ammal was legally wedded and he died intestate. It is the
further case of the respondents 1 and 2/plaintiffs that, Devadass (2nd respondent), Rajendran (3rd respondent), Padma (4th respondent) and
Anand (5th respondent) were the legitimate children born to Gopal and Baby Ammal; that Navaneedam Ammal, the first appellant, due to her
cohabitation with Late Gopal, gave birth to Saravanan, Ravi, Janaki and Amudha, the appellants 2 to 5 herein. As such, Baby Ammal, being the
legally wedded wife of Gopal, Devadass, Rajendran, Padma and Anand were being the legitimate children of Gopal born out of lawful wedlock
and Saravanan, Ravi, Janaki and Amudha, being the children born to Late Gopal due to the cohabitation of Navaneedam Ammal, which might give
rise to a presumption that they were living as husband and wife, all the above said 10 persons, namely all the parties to the appeal, excepting the
first appellant Navaneedam Ammal, are entitled to succeed to the properties of Late Gopal, as he died intestate. Thus, the plaintiffs had prayed for
a decree for partition directing division of the suit property into nine equal shares and allotment of two consecutive shares, out of the nine shares, to
the plaintiffs.
The suit was resisted by the appellants herein/defendants 1 to 5 contending that Baby Ammal was not the legally wedded wife of Gopal and on
the other hand, Navaneedam Ammal was the legally wedded wife of Gopal with a consequence that Saravanan, Ravi, Janaki and Amudha alone
were the legitimate children of Gopal. The further contention of the Appellants/Defendants 1 to 5 is that the said Gopal, during his life time, gifted
the suit property to Navaneedam Ammal, Saravanan and Ravi, namely the appellants 1 to 3 herein/defendants 1 to 3, by executing a registered
Settlement Deed dated 10.12.2003 and hence, the defendants prayed for the dismissal of the suit.
In the light of the said pleadings, the trial Court initially framed 12 issues and ultimately identified only three issues as the issues involved in the
suit and recast the same, which are as follows:
i) Whether the first plaintiff is the legally wedded wife of the deceased Mr. Gopal?
ii) Whether the settlement deed dt. 10.12.2003 is proved?
iii) Whether the plaintiffs are entitled to the partition of 1/9th share each and for separate possession of shares?
Based on the identification of those issues, the parties went for trial and in the trial, three witnesses were examined as P.Ws. 1 to 3 and eight
documents were marked as Exhibits A-1 to A-8 on the side of the plaintiffs, whereas two witnesses were examined as D.Ws. 1 and 2 and two
documents were marked as Exhibit B-1 and B-2 on the side of the defendants (appellants herein).
The learned trial judge, at the conclusion of trial, after hearing the arguments advanced on both sides, considered the pleadings and evidence and
upon such consideration, the trial Court held that Baby Animal, the first plaintiff was the legally wedded wife of Gopal; that the settlement deed
dated 10.12.2003 produced as Exhibit B-1 was not proved in accordance with law and that Baby Ammal and Devadass were entitled to 1/9th
share each. Accordingly a preliminary decree was passed. As against the same, the appellants herein/defendants 1 to 5 preferred an appeal on the
file of the learned Subordinate Judge, Tambaram (lower appellate judge). The learned lower appellate judge, after hearing both sides and on re-
appreciation of evidence, concurred with the said findings of the trial Court and dismissed the appeal confirming the preliminary decree passed by
the trial Court in all respects. Hence, the appellants herein/defendants 1 to 5 have knocked at the doors of this Court by filing the present second
appeal questioning the correctness of the decree passed by the lower appellate Court confirming the preliminary decree passed by the trial Court
on various grounds set out in the memorandum of grounds of second appeal.
At the time of admission of the second appeal, the following question was identified and formulated as the substantial question of law involved in
the second appeal.
When the execution and recital of settlement deed under Exhibit B-1 is not denied by the plaintiffs or the Courts below justified in ignoring the
same?
The arguments advanced by Mr. S. Nandivarman, learned counsel for the appellants and by Mr. T. Velumani, learned counsel for the contesting
respondents, namely respondents 1 and 2, are heard. The materials available on record and the records sent for from the Courts below are also
perused and taken into consideration.
The admitted facts are as follows:
The first appellant Navaneedam Ammal is the own sister of the first respondent Baby Ammal. Appellants 2 to 5, namely Saravanan, Ravi, Janaki
and Amudha are the children of Navaneedam Ammal. Respondents 2 to 5, namely Devadass, Rajendran, Padma and Anand are the children of
Baby Ammal. Though Baby Ammal and Navaneedam Ammal are sisters in relation by full blood, each one of them contends that she alone is the
legally wedded wife of deceased Gopal. Respondents 1 and 2/plaintiffs contend that Baby Ammal is the legally wedded wife of Gopal and
Devadas, Rajendran, Padma and Anand are the legitimate children born to them out of lawful wedlock. Even though an initial stand was sought to
be taken by them that Gopal did not marry Navaneedam Ammal, subsequently they conceded that their long cohabitation would give rise to a
presumption that they underwent a form of marriage and hence the children, born out of such cohabitation, would also be the legal heirs of Late
Gopal as per Section 16 of the Hindu Marriage Act, 1955. The Respondents 1 and 2/plaintiffs conceded the right to succeed to the properties of
Gopal in equal proportion with the other children of Gopal and Baby Ammal, who is claimed to be the legally wedded wife of Gopal. Though the
defendants 1 to 5 would have contended before the trial Court that Navaneedam Ammal alone was the legally wedded wife of Gopal and Baby
Ammal had no connection with Gopal and hence Baby Ammal and her children could not claim a right to succeed to the properties of Gopal, the
learned trial judge, on an appreciation of evidence held that it was Baby Ammal, who was the legally wedded wife of Gopal and even if there was
any marriage between Gopal and Navaneedam Ammal, the same was void, as it was contracted during the life time of Baby Ammal and during the
subsistence of her marriage with Gopal. The said finding is supported by the admission made in the reply notice marked as Exhibit A-4. The
relevant part of which reads as follows:
It is pertinent to mention for more than 35 years your client had abandoned Gopal and co-habiting with another married man and my client has
been living with Gopal for the last 33 years.
The same will go to show that Baby Ammal had a conjugal relationship with Gopal and she abandoned her husband Gopal and that two years after
such abandonment, Navaneedam Ammal joined with Gopal and started living with him. The said admission itself shall be enough to hold that the
marriage between Late Gopal and Baby Ammal was earlier in point of time and even before Navaneedam Ammal started living with Gopal, Baby
Ammal was cohabiting with Gopal under the same roof as his wife. In addition, a copy of the Voter''s identity card produced by the plaintiffs as
Exhibit A-5, also describes her to be the wife of Gopal. As such, the finding regarding issue No. 1 framed in the suit is based on proper
appreciation of evidence. The lower appellate Court has also on re-appreciation of evidence, concurred with the said finding. The said concurrent
finding regarding the marital status of Baby Ammal, cannot be termed perverse to elevate it as a substantial question of law. That is the reason why
no question regarding the said finding has been formulated as a substantial question of law at the time of admission of the second appeal.
Since the relationship of each one of the parties with the deceased Gopal is either admitted or proved, in the absence of Exhibit B-1-Gift
settlement deed, the plaintiffs claim for 1/9th share for each one of them, is bound to be upheld. Therefore, the success or failure of the suit solely
depends upon the outcome of issue No. 2 framed in the suit. As it has been contended by the Appellants/Defendants 1 to 5 that there was no
specific denial of the execution of Exhibit B-1-Settlement Deed and the plaintiffs had taken a plea that the said deed was obtained by coercion, the
Courts below ought to have held that Exhibit B-1-Settlement Deed was proved in the absence of any evidence in proof of the vitiating factor
coercion. Based on that contention alone, the above said substantial question of law has been formulated. Now, let us consider the contention of
the parties regarding the said question.
It is an admitted fact that the suit property was the absolute property of Late Gopal and he had absolute right of disposition over the same.
Learned counsel for the Appellants/Defendants 1 to 5 contends that though the Respondents 1 and 2/plaintiffs had chosen to deny the execution of
Settlement Deed (Exhibit B-1) relied on by the Appellants/Defendants 1 to 5 in their plaint and in the proof affidavits of P.Ws. 1 and 2, such a
denial got diluted and nullified by the admissions made by them during cross-examination and also by the suggestion made to the witnesses
examined on the side of the defendants suggesting that the said document was obtained by coercion; that the above said aspect was not
considered by the Courts below in proper perspective and that the same has led to an erroneous and perverse finding that Exhibit B-1-Settlement
deed was not proved to be genuine.
Per contra, learned counsel for the contesting respondents/plaintiffs contends that, since none of the attesters to Exhibit B-1-Settlement Deed
was examined on the side of the appellants, Exhibit B-1 cannot be used in evidence in support of their case. Learned counsel for the contesting
respondents/plaintiffs contends further that since specific denials have been made not only in the pleadings, but also in the testimonies of P.Ws. 1
and 2 in their chief examination, the same shall be enough to hold that the execution of the document relied on by the Appellants/Defendants 1 to 5,
namely Exhibit B-1-Settlement Deed was specifically denied and that in such circumstances, unless one of the attesters of the said document, at
least, has been called as a witness, if alive and subject to the process of the Court and also capable of giving evidence, Exhibit B-1 cannot be
looked into.
As an answer to the above said contention of the learned counsel for the contesting respondents/plaintiffs, learned counsel for the
Appellants/Defendants 1 to 5 drew the attention of the Court to proviso to Section 68 of the Indian Evidence Act, 1872 which says that in case of
a registered document registered in accordance with the provisions of the Indian Registration Act, 1908, there will not be any necessity unless the
execution of the document has been specifically denied. The learned counsel for the Appellants/Defendants 1 to 5 contends that the initial denial
may not be conclusive and the pleading as a whole, which will include the evidence also, should be considered in totality to decide whether there
has been any specific denial or not and that, if such a consideration is made, the Court can come to the only conclusion that the plaintiffs had not
denied the execution of the document Exhibit B-1-Settlement Deed by Late Gopal and on the other hand, they pleaded the vitiating factor, namely
coercion. Upon considering the materials available on record, especially the evidence of P.Ws. 1 and 2 and also the suggestion put to D.W. 1, this
Court comes to the conclusion that the above said contention of the learned counsel for the appellants is bound to be countenanced. At the cost of
repetition, it is pointed out that both P.Ws. 1 and 2 had chosen to deny Gopal having executed any Settlement Deed in favour of the appellants 1
to 3. But, the answers given by them in the cross-examination have completely diluted the denial and nullified the same. P.W. 2 in his evidence in
cross-examination, has pleaded absence of knowledge regarding the Settlement Deed executed by Gopal. He has further admitted that even after
a plea was taken in the written statement based on the Settlement Deed, he did not take any efforts to find out whether there was any such
Settlement Deed or not. The same will show that there was no specific denial and if at all there was any at the earlier point of time, the same got
diluted and nullified by such answer. In addition, while cross-examining D.W. 1, a suggestion was put to him by the counsel for the plaintiffs to the
effect that the Settlement Deed was obtained by Defendants 1 to 3 (Appellants 1 to 3) from Gopal by causing a threat and using a coercion. From
such a suggestion put to D.W. 1, we can infer an admission that the Settlement Deed was executed by Late Gopal. Admitting the execution of
settlement deed, the contesting respondents/plaintiffs have chosen to take a stand that the said document was obtained by coercion. When the
execution of the document is not specifically denied and the persons entitled to deny it, pleads coercion as a vitiating factor, then the burden shifts
on the person pleading such a vitiating factor. Unfortunately, there is no evidence adduced on the side of the plaintiffs to prove alleged coercion by
which Exhibit B-1-Settlement Deed was brought into existence. Hence, this Court comes to the conclusion that there was no specific denial of the
fact that Exhibit B-1-Settlement Deed was executed by Late Gopal. Even if there was any denial at the preliminary stage of the case, the same was
diluted and the denial was converted into one which cannot be termed a specific denial. Hence, the non-examination of any of the attesters of
Exhibit B-1 is not fatal to the case of the contesting respondents.
In this regard, learned counsel for the contesting respondents/plaintiffs made his submissions based on the observations made by this Court in
Seenappa v. R. Krishnappa and Others (2009) 6 MLJ 1113. Of course, in the said case, this Court has held that when there is a specific denial,
the burden on the person relying on the document to examine at least one of the attesters, shall not be dispensed with and non-examination of
attesters was fatal to the case of the party relying on the document. This Court held that when the proof of execution was not made in accordance
with law, there was no question of shifting the burden of proving the vitiating factor on the person disputing it. With due regard to the Hon''ble
Judge, this case can be distinguished from the case dealt with in the judgment cited by the learned counsel for the contesting respondents/plaintiffs.
Therein there was total absence of any kind of admission and the denial was specific. In addition to the denial, the additional plea of vitiating factor
was also taken. Only in those circumstances, this Court held that the burden of proof, did not stand shifted on the person against whom the
document was sought to be used and the person, who disputed the document.
In the case on hand, as pointed out supra, there is no specific denial. The contesting respondents/plaintiffs have not come forward with a
categorical denial that Exhibit B-1-Settlement Deed was not the document executed by Late Gopal. On the other hand, at one place P.W. 1
pleads ignorance and at another place a suggestion was made to a witness of the defendants as if that document was brought into existence by
using coercion. That will be enough to hold that there was no specific denial of the execution of Exhibit B-1-Settlement Deed by Late Gopal. Both
the Courts below have committed a serious error in holding that there was specific denial of the execution of Exhibit B-1-Settlement Deed by
deceased Gopal and hence, the necessity to examine one of the attesters could not be dispensed with. The substantial question of law is answered
accordingly. In line with the answer given to the substantial question of law holding that there was no specific denial of the execution of Exhibit B-
1-Settlement Deed, this Court comes to the conclusion that the Appellants/Defendants 1 to 5 had proved by other evidence, the due execution of
Exhibit B-1-Settlement Deed. As per Exhibit B-1-Settlement Deed, the Appellants 1 to 3/Defendants 1 to 3 have become entitled to the suit
property in its entirety to the exclusion of others. Hence, the claim of the contesting respondents/plaintiffs that they have got 1/9th share each in the
suit property and the prayer for partition, are bound to be negatived. This Court does have no hesitation in holding that the decree passed by the
trial Court, which was confirmed by the lower appellate Court is discrepant and the same is liable to be reversed with the result that the suit shall
stand dismissed.
In the result, the second appeal is allowed. The judgment and the decree of the lower appellate Court, namely Subordinate Judge, Tambaram
dated 30.1.2010 made in A.S. No. 35 of 2008 (CPT SC AS 78/2007) confirming the judgment and decree of the District Munsif, Tambaram
dated 28.4.2006 made in O.S. No. 40 of 2005, is set aside and consequently the suit O.S. No. 40 of 2005 shall stand dismissed. However, there
shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.