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Judgment
A. Selvam, J.—The appellant calls in question the legality of the judgment and decree dated 11/3/1992 passed in Original Suit No. 9 of 1985 by The Principal Sub-Court, Madurai.
The appellant herein as plaintiff has instituted the original suit No. 9 of 1985 on the file of the Principal Sub-Court, Madurai for the reliefs of declaration, partition, rendition of account and also for future profit, wherein the present respondents have been arrayed as defendants. The trial Court after contemplating both the oral and documentary evidence has dismissed the suit without costs. The judgment and decree passed by the trial Court are now being challenged in the present appeal at the instance of the plaintiff.
The nubble of the averments made in the plaint may be stated like thus:
The plaintiff and the defendants 2 to 4 are the daughters of one P.Ponnusamy Nadar and Amrutha Valliammal and the first defendant is their only son. The suit properties have been purchased by one Periyakaruppa Nadar @ Vellaikannu, the paternal grandfather of the plaintiff and the defendants. The said Periyakaruppa Nadar @ Vellaikannu has married three wives and he passed away on 14/12/1956. After his demise, the father of the plaintiff and the defendants by name Ponnusamy Nadar and his brother Ramasamy have effected a partition betwixt themselves by virtue of a partition deed dated 30/6/1954 and subsequently, another partition has been effected between Ponnusamy Nadar and the first defendant under a partition deed dated 25/11/1959. In the said partition, the properties mentioned in A and B Schedules have been allotted to the share of Ponnusamy Nadar. The said Ponnusamy Nadar has passed away and therefore, in the property of the deceased Ponnusamy Nadar, the plaintiff is having 1/5th share. The marriage of the plaintiff has been performed on 29/8/1965 and her husband is working in Indian Railways and due to that she lived in various places. On 28/8/1974, the plaintiff and her sisters viz., defendants 2 to 4 have assembled so as to attend the marriage of one Vijayakumar. At that time, the first defendant has insisted the plaintiff and the defendants 2 to 4 to put their signatures on a document by saying that it is necessary for the purpose of income tax, wealth tax and estate duty etc. The plaintiff and her sisters viz., defendants 2 to 4 have reposed confidence upon the first defendant and subsequently put their signatures. No talk of partition has been made at the time of obtaining their signatures. The first defendant has obtained their signatures on blank papers and also on printed forms. After some time, the plaintiff has come to know that the said document has been attested by her cousin brother viz., B. Rathinasamy. The first defendant has not given proper opportunity to the plaintiff to know about the character of the document. In order to deprive the right of the plaintiff, the first defendant has fraudulently created the said document styled as a partition deed and the same has been obtained by exercising fraud and misrepresentation. The separate properties of the mother of the plaintiff and the defendants have been described in C and D schedule. The plaintiff has approached the first defendant to get her share in the suit properties. But the first defendant has refused to partition the suit properties. Under the said circumstances, the plaintiff has filed the present suit for the reliefs indicated supra.
The material averments made in the written statement filed by the first defendant may be summarised as follows:
It is false to say that the partition deed in question has been obtained by exercising fraud and misrepresentation. It is also false to say that the plaintiff and the defendants 2 to 4 have signed on the partition deed without knowing its contents. The properties available for partition have already been divided. As per partition deed in question, each sharer has taken his or her separate share. The plaintiff is an educated lady and therefore, it is false to contend that she has put her signature on the partition deed without knowing its contents. The plaintiff and her husband have fully known the terms of the partition deed. It is also equally false to say that the plaintiff has come to know about the partition deed only at a later point of time. It is also false to allege that the plaintiff has approached the first defendant subsequently to effect partition. The first defendant is alone entitled to get the properties described in C schedule and no properties are available as mentioned in the D schedule. There is no merit in the suit and the same deserves to be dismissed.
The plaintiff has also filed a reply statement and thereby refuted most of the averments mentioned in the written statement filed by the first defendant.
The material averments made in the additional written statement filed by the first defendant may be stated like thus:
It is false to say that the plaintiff has put her signature on blank forms and papers. The partition deed dated 23/8/1974 is not a fraudulent document. The Court fee paid by the plaintiff is not correct. There is no merit in the suit and the same deserves to be dismissed.
The material averments made in the written statement filed by the second defendant are summarised as follows:
The partition deed dated 23/8/1974 is null and void and therefore, the suit may be decreed as prayed for.
The material averments made in the written statement filed by the third defendant can be stated like thus:
The first defendant has exercised fraud and misrepresentation so as to get the signature of the third defendant on the partition deed dated 23/8/1974.
The third defendant is entitled to get 1/5 share in the properties mentioned in the plaint and therefore, the suit may be decreed as prayed for.
The material averments made in the written statement filed by the fourth defendant can be stated like thus:
The first defendant has obtained the signature of the fourth defendant only for the purpose of income tax. The fourth defendant has put her signature without knowing the contents of the partition deed. Therefore, the suit may be decreed as prayed for.
On the basis of the divergent pleadings raised by either party, the trial Court has framed necessary issues and after pondering the rival evidence adduced on either side has dismissed the suit without costs.
Before analysing the argument advanced by either counsel, it has become shunless to perorate something about the relationship that exists betwixt the parties. The plaintiff and the defendants 2 to 4 are the daughters of one Ponnusamy Nadar and Amruthavalli and the first defendant is their son.
The learned Counsel appearing for the appellant has strenuously contended that the properties mentioned in A and B schedules and some other properties originally belonged to one Periyakaruppa Nadar @ Vellaikannu Nadar and he married three wives and passed away on 14/12/1956 and after his demise, the father of the plaintiff and the defendants viz., Ponnusamy and his brother Ramasamy Nadar have effected partition between themselves on 30/6/1954 and subsequently, another partition has been effected between Ponnusamy Nadar and the first defendant under a registered partition deed dated 25/11/1959 and in the said partition, the suit properties described in A and B schedules have been allotted to the share of Ponnusamy Nadar and the same are nothing but his separate properties and in which the plaintiff is entitled to get 1/5 share. On 28/8/1974, the plaintiff and the defendants 2 to 4 have assembled in the house of the first defendant so as to attend the marriage of one Vijaya Kumar and at that time, the first defendant has obtained the signatures of the plaintiff and the defendants 2 to 4 on blank papers and also on blank forms by saying that their signatures are very much essential for the purpose of income tax, wealth tax etc., and since the plaintiff and the defendants 2 to 4 have reposed confidence upon the first defendant, they put their signatures and the first defendant has also obtained their signatures on typed papers and all of them have put their signatures without knowing its contents and subsequently the first defendant with oblique motive has created the partition deed dated 23/8/1974 as if a partition has been effected betwixt the parties and the said partition deed is nonest in law and the same is also void and the plaintiff has come to know the evil design of the first defendant only after some time and the plaintiff has frequently asked the first defendant to effect a partition. But the first defendant has not conceded the demand of the plaintiff and under the said circumstances, the plaintiff has come forward with the present suit for the reliefs sought for in the plaint. But the trial Court without accepting the contentions raised on the side of the plaintiff has erroneously dismissed the suit and therefore, the suit is liable to be decreed as prayed for.
In order to remonstrate the argument advanced by the learned Counsel appearing for the appellant, the learned Counsel appearing for the first respondent has laconically contended that on 23/8/1974, a partition has been effected between the plaintiff and the defendants in respect of the separate properties of their father and the terms of partition have been reduced into writing and subsequently, all the parties have put their signatures on the partition deed and the same has also been duly registered and it is false to say that the first defendant has created the partition deed in question by exercising fraud and misrepresentation and the plaintiff is a graduate and only after reading the entire partition deed, the plaintiff and the defendants 2 to 4 have put their signatures and under the said circumstances, the plaintiff is not entitled to get the reliefs sought for in the plaint and the trial Court after considering the divergent submissions made by either party has rightly dismissed the suit and there is no inkling nor vantage to make interference with the well merited judgment passed by the trial Court.
On the basis of the rival submissions made by either counsel, the Court can deduce the following points for determination at this juncture.
a. Whether the partition deed dated 23/8/1974 is nonest in law? and
b. Whether the said partition deed is valid and binding upon the parties?
The alleged original partition deed has been marked as Ex.B.3 and a registration copy of the same has been marked as Ex.A.69. The sheet anchor of the present case is Ex.B.3. Therefore, the Court has to closely analyse the genuineness of Ex.B.3. In Ex.B.3, the names of the plaintiff, defendants and their mother by name Amruthavalliammal have been mentioned as parties.
The properties mentioned in the A schedule have been allotted to the share of the said Amruthavalliammal. The property mentioned in the B schedule have been given to the first defendant. The properties found in C schedule have been allotted to the second defendant. The properties mentioned in D schedule have been allotted to the plaintiff and the properties mentioned in E schedule have been allotted to the third defendant and the properties found in F schedule have been allotted to the share of the fourth defendant.
The main contention urged on the side of the plaintiff is that the plaintiff and defendants 2 to 4 have put their signatures on Ex.B.3 without knowing its contents and therefore, Ex.B.3 is nonest in law and in short it is a void document and the same is not binding upon the parties. The specific contention urged on the side of the first defendant is that Ex.B.3 is a valid document.
Since the specific case of the plaintiff is that Ex.B.3 is nonest in law and the same is void it behoves upon the plaintiff to prove the same. In the plaint in so many places, it has been mentioned that the first defendant by way of exercising fraud and misrepresentation, obtained the signatures of the plaintiff and the defendants 2 to 4.
At this juncture, the learned Counsel appearing for the first respondent has meticulously drawn the attention of the Court to the decision reported in AIR 1981 Jammu and Kashmir - 26 (Yog Raj v. Kuldeep Raj Gupta and Anr.), wherein it has been held like thus:
The plaintiff seeking the annulment of a decree on the ground of fraud is under an obligation to specifically state the particulars as to how he was kept out of knowledge of his rights by the fraudulent acts of the defendants, and the time when he discovered it.
The Court has perused the lengthy evidence given by the plaintiff and found that the plaintiff is a graduate. She has categorically admitted that at the time of putting her signature, she has not questioned the first defendant as to why he has obtained so many signatures from her. Further, she has stated that she has not asked about the signatures obtained by the first defendant from her mother. Further, she has stated that till the demise of her mother, she has not stated to anybody about the signatures put by her. Further, she has candidly admitted that she has put her signature in the register maintained by The Sub-Registrar office. Since the plaintiff being a graduate, might not have put her signatures without reading the contention of Ex.B.3. Further, the plaintiff has given only artificial evidence and the same cannot be given weight to.
From the evidence of the plaintiff, the Court can easily discern that she has put her signature only after knowing the contents of Ex.B.3 and therefore, the question of nonest factum doesn''t arise in this case.
In order to prove the due execution and registration of Ex.B.3, on the side of the first defendant, D.Ws.2 and 3 have been examined. The concerned Sub-Registrar has been examined as D.W.2. He has categorically stated in his evidence that Ex.B.3 has been registered on 28/8/1974 and after obtaining permission of all the parties, the same has been registered. One of the attesting witnesses by name, Subramanian has been examined as D.W.3. He has also candidly stated that he knows Amruthavalliammal and her children and with regard to their properties, Ex.B.3 has come into existence and each party therein has read the same. Therefore, from the conjoint reading of the evidence given by D.Ws.2 and 3, it is needless to say that the first defendant has clearly established the due execution and registration of Ex.B.3.
The learned Counsel appearing for the first respondent has also meticulously drawn the attention of the Court to the decision reported in 1958 2 Madras Law Journal Reports - 110 (Ponnusami Nadar v. Athi Nadar and Anr.), wherein this Court has held that
In record to public records which are maintained with regularity in the ordinary course of routine they must be presumed to show official acts regularly and correctly performed until the contrary is proved.
In the instant case, on the side of the first defendant, the due execution as well as registration of Ex.B.3 have been clearly proved. But no contra evidence has been adduced on the side of the plaintiff. Under the said circumstances, as per the dictum given in the said decision, the Court can very well come to a conclusion that Ex.B.3 is a valid document.
The plaintiff has sought the main relief to the effect to declare that Ex.B.3 is null and void. The plaintiff has not proved that Ex.B.3 is null and void. Since the first defendant has proved its genuineness to the satisfaction of the Court, the same is a voidable document. The plaintiff has subsequently paid necessary Court fees. At this juncture, a nice legal question arises as to whether the present suit has been filed so far as the first relief is concerned within the period of limitation.
The learned Counsel appearing for the first respondent has befettingly drawn the attention of the Court to the decision reported in 1953 1 Madras Law Journal Reports - 476 (Jami Appanna v. Jami Venkatappadu and Ors.), wherein this Court has held that in a case of voidable transactions, a suit might be filed so as to set aside the same within the period of limitation prescribed under Article 91 of the Limitation Act. The old Article 91 is corresponding to new Article 59 wherein it has been clearly stated that a suit to cancel or set aside an instrument, or decree or for the rescission of a contract must be filed within three years when the facts entitle the plaintiff to have an instrument or decree cancelled etc.
Admittedly, Ex.B.3 has come into existence on 23/8/1974. The present suit has been instituted in the year 1985. Therefore, in view of Article 59 of the Limitation Act, the present suit is clearly barred by limitation so far as the first relief sought for in the plaint is concerned.
The learned Counsel appearing for the appellant has advanced his second limb of argument stating that the property mentioned in the A schedule in Ex.B.3 has been allotted to the share of the deceased mother of the plaintiff and the defendants in lieu of her maintenance and as per Section 14(1) of the Hindu Succession Act, the limited right granted in her favour has become absolute right and she has become the full owner of the same and both the plaintiff and the defendants are her legal heirs and each is entitled to get 1/5 share in the said property and likewise, the properties mentioned in the C and D schedule are her separate properties and in which also the plaintiff and the defendants are each entitled to get 1/5 share. But the trial Court without considering the above aspects has erroneously dismissed the suit in toto and therefore, the relief of partition can be granted in respect of the said properties and the suit may be decreed to that extent.
Per contra, the learned Counsel appearing for the first respondent has equally contended that A schedule property found in Ex.B.3 has been allotted to the deceased Amruthavalliammal and she is entitled to enjoy the same till her life time and after her demise, the same must go to the first defendant and his legal heirs and accordingly, after her demise, the first defendant and his legal heirs have got the same and in which neither the plaintiff nor the defendants 2 to 4 is or are having any right and further, the properties mentioned in the C schedule are not the separate properties of the said Amruthavalliammal and the same have been purchased by Ponnusamy Nadar, the father of the plaintiff and the defendants in her name and the properties mentioned in the D schedule are not in existence and further, in Ex.B.3, it has been clearly mentioned that if any properties left out, the first defendant should get the same and therefore, altogether, the argument advanced by the learned Counsel appearing for the appellant is totally erroneous and the same is liable to be rejected.
On the basis of the rival submissions made by either counsel, the Court must first analyse with regard to the property mentioned in the A schedule in Ex.B.3. It is seen from Ex.B.3 that the second item of plaint A schedule property has been allotted to the share of the deceased Amruthavalliammal in lieu of her maintenance. In Ex.B.3, it is recited that the said Amruthavalliammal should enjoy the same till her life time and after her demise, the same should go to the first defendant and his legal heirs.
At this juncture, a nice legal question has arisen as to whether the limited right created in favour of the deceased Amruthavalliammal has become the absolute right by virtue of Section 14(1) of the Hindu Succession Act?
In 1999 3 LW SC 902 (Srimathi Benibai v. Ragubir Prasad, the Apex Court has held as follows:
The limited interest granted to the widow being in lieu of maintenance, was in recognition of her pre-existing right and got transformed into an absolute estate.
Therefore, in view of the decision referred to earlier, it is made clear to the Court that the property mentioned in the A schedule in Ex.B.3 has become the absolute property of the deceased Amruthavalliammal by virtue of Section 14(1) of the said Act.
Of course it is true that a restricted estate has been created in favour of the deceased Amruthavalliammal. The said property has been given to her only in lieu of maintenance. Further, she is having pre-existing right. At this juncture, it would be more useful to look into the decision reported in Smt. Palchuri Hanumayamma Vs. Tadikamalla Kotlingam (D) by L.Rs. and Others, , wherein the Apex Court has held as follows:
A bequest of property to a wife in lieu of maintenance with a further bequest of distribution of the property amongst the daughters after the lifetime of the wife would make the wife an absolute owner of the property.
In the instant case also as noted down earlier only a restricted estate has been created in favour of the deceased Amruthavalliammal. Since she is having pre-existing right in respect of the property allotted to her by virtue of Section 14(1) of the said Act, she has become the absolute owner and the subsequent restriction made in Ex.B.3 has become nonest in law. Therefore, in view of the foregoing elucidation of both the factual and legal premise, the property allotted to the deceased Amruthavalliammal is her absolute property and in which the plaintiff and the defendants are each entitled to get 1/5 share.
Now, coming to C and D schedule properties of the plaint, the specific case of the plaintiff is that the properties mentioned therein are the separate properties of the deceased Amruthavalliammal. But the specific contention urged on the side of the first defendant is that the properties mentioned in C schedule have been purchased by the father of the plaintiff and the defendants by name Ponnusamy Nadar in the name of his wife viz., Amruthavalliammal. Admittedly, the properties mentioned in C schedule are standing in the name of Amruthavalliammal. Therefore, the entire burden lies upon the first defendant to prove the same. But the first defendant has not discharged his burden. Under the said circumstances, the contention urged on the side of the plaintiff remains unchallenged. Further, it is an axiomatic principle of law that the properties acquired or standing in the name of female member of the family, the female member need not prove how she acquired it and the Court can presume that the same belongs to female member. Therefore, with regard to C schedule properties, the contention urged on the side of the first defendant is sans merit.
At this juncture, the learned Counsel appearing for the first respondent has also advanced a flimsy argument stating that the items 2 and 3 mentioned in C schedule have already been acquired by the Government and therefore, the same are not liable for partition. The Court has closely perused the plaint and found that only 0.38 cents in item number 2 and 0.20 cents in item number 3 have been acquired by the Government. The remaining extent has not been acquired. Therefore, the argument advanced by the learned Counsel appearing for the first respondent is of no use.
It has been contended on the side of the first defendant that the properties mentioned in the D schedule are not in existence. The plaintiff has given acceptable evidence to the effect that the properties mentioned in the D schedule are the separate properties of the deceased Amruthavalliammal. Since the properties mentioned in the D schedule are the separate properties of the deceased Amruthavalliammal, the plaintiff is entitled to get her 1/5 share in what ever the properties are available.
In view of the foregoing narration of both the factual and legal premise, the plaintiff is not entitled to get the relief of declaration sought for in the plaint whereas she is entitled to get the relief of partition with regard to item 2 mentioned in A schedule as well as the properties mentioned in C and D schedules and to that extent, the Court can pass a decree in her favour.
In fine, the present appeal is allowed in part without costs. The judgment and decree passed by the trial Court are modified as follows:
The plaintiff is entitled to get a decree for partition of her 1/5 share in respect of item 2 of A schedule, C and D schedule properties and to that extent, the suit is decreed without costs. In other respect, the judgment and decree passed by the trial Court are confirmed.