Sakkubai Ammal and Others vs M. Ganesan

A. Ramamurthi, J.—Plaintiff in O.S.No. 458 of 1996 and the defendant in O.S.No. 430 of 1996 on the file of District Munsif Court,

Chengam have preferred the Second Appeal Nos. 456 and 457 of 2000 respectively aggrieved against the judgment and decree made in

A.S.Nos. 39 and 38 of 1999 on. the file of Principal District Court, Tiruvannamalai, dated 24.12.1999 setting aside the judgment and decree of

the trial Court dated 24.12.1998.

The case in brief for the disposal of both the second appeals is as follows: Plaintiff in O.S.No. 430 of 1996 filed the suit for declaration and

consequential injunction relating to the suit property. The suit property originally belonged to one Muthu Mudaliar alias Ganesan. Patta also stood

in his name and he was paying the kist. The plaintiff purchased the property from him for a sum of Rs. 32,000 under a registered document dated

15.11.1988. Ever since the date, the plaintiff is in possession and enjoyment of the property and patta also got transferred in his name and paying

the kist. There was already a mortgage in respect of the suit property. The defendants are only the sisters of the vendor of the plaintiff. They have

not right whatsoever in the suit property. They attempted to interfere in the possession of the plaintiff. Hence, the suit.

The defendants resisted the suit denying the title of the plaintiff and also the sale deed dated 15.11.1988. There was no oral partition between

Muthu Mudaliar and his brothers and hence, Muthu Mudaliar has no right to convey and property to the plaintiff. By virtue of the Will dated

11.10.1958, the first defendant got title and enjoyment of the suit property. The sale deed is also not binding on these defendants.

The trial Court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-9 were marked. On the side of the

defendants. D.Ws.1 and 2 were examined and no documents was marked. The trial Court dismissed the suit and aggrieved against this, the plaintiff

preferred A.S.No. 38 of 1999 on the file of District Court, Tiruvannamalai and the learned Judge after hearing the parties, allowed the appeal, set

aside the judgment and decree of the trial Court and decreed the suit and aggrieved against this, the defendants have come forward with the

present second appeal.

The first defendant in O.S.No. 430 of 1996 filed O.S.No. 458 of 1996 claiming the same relief of declaration and injunction relating to the same

suit property. The plaintiff in O.S.No. 430 of 1996 is the defendant in O.S.No. 458 of 1996. Since the parties raised the very same contentions

raised by them in O.S. 430 of 1996, it is unnecessary to reproduce the same. The plaintiff in O S.458 of 1996 examined P.Ws.1 and 2, and

marked Exs.A-1 and A-2. The defendant examined D.Ws.1 to 3 and no document was marked. The trial Court decreed the suit and aggrieved

against this, the defendant preferred A.S.No. 39 of 1999 and the learned Judge after hearing the parties, allowed the appeal, set aside the

judgment and decree of the trial Court and dismissed the suit. Aggrieved against this, the plaintiff has preferred S.A.No. 456 of 2000.

The appellant viz., Sakkubai Ammal, has raised the following same substantial questions of law in both the second appeals separately:

(1) Whether the lower appellate Court is correct in law in declaring the title of the respondent with reference to the suit property especially when

the oral partition under which the respondent claims has not been established by letting in any evidence?

(2) Whether the judgment of the lower appellate Court which has upheld the oral partition without there being any evidence thereforth is

sustainable in law?

(3) Whether the lower appellate Court is correct in law in eschewing the scribe of the Will Ex.A-1 who has also spoken regarding the attestation of

the Will by the Attestors?

(4) Whether on the facts and circumstances of the case, the lower appellate Court is correct in non suiting the appellant overlooking the various

circumstances which probabilities of the case of the appellant as worthy of acceptance than that of the respondent?

(5) Whether the lower appellate Court is correct in law inquiring stringent proof of the execution of the Will especially when the scribe has given

the evidence and being a Civil Court the Court is duty bound only to look into the probabilities of the case?

The parties and the subject matter in both the second appeals are one and the same and as such, a common judgment is pronounced. The

parties will be hereinafter referred to as they are described in O.S.No. 430 of 1996 to avoid confusion.

Heard the learned Counsel of both sides.

The points that arise for consideration in both that appeals are:

(1) Whether the plaintiff is entitle to the relief of declaration and permanent injunction?

(2) Whether the first defendant is entitled to the relief of declaration and permanent injunction?

(3) Whether the sale deed dated 15.11.1988 is true, valid and binding on the parties?

(4) Whether the unregistered Will dated 11.10.1958 is true, valid and binding on the parties?

(5) To what relief?

Points: The suit property is in Survey No. 323/1 measuring 4.00 acres out of the total extent of 6.78 acres. The plaintiff claimed that the suit

property originally belonged to Muthu Mudaliar alias Ganesan and from him, he had purchased the property for a consideration of Rs. 32,000

under a registered sale deed dated 15.11.1988. The plaintiff further stated that this vendor got the property in the oral partition in the family and

after the sale, patta was transferred in his name and he had also paid the kist. The property was already under mortgage dated 25.6.1970 and the

same was cleared by the plaintiff and obtained a receipt on 15.11.1988. The plaintiff had also produced the kist receipts, chitta extract and a lease

deed in favour of one third party. These documents have been pressed into service in order to prove that he has got title to the property and

possession is also with him.

Per contra, the defendants denied the title of the vendor of the plaintiff. There was no oral partition between Muthu Mudaliar and his brother as

alleged by the plaintiff. They relied upon an unregistered Will dated 11.10.1958 executed by the father of the defendants. He also died two months

after 11.10.1958 and according to the defendants, they have got title to the property and they are in possession of the same and, as such, sought

the relief of declaration and injunction with reference to the same subject matter. The defendants also produced the Will dated 11.10.1958 and kist

receipt in the other suit and apart from these two documents, no other document was filed on either side.

As adverted to, the plaintiff as well as the first defendant claim the relief of declaration and permanent injunction with reference to the same

property and, as such, the burden of proof is upon each of them to establish that they have got title and possession. Although the two suits were

filed separately, unfortunately the trial Court has recorded the evidence in each case separately and judgment was also pronounced separately.

Similarly, the lower appellate Court had also separately given the judgment. It is pertinent to state that the Will dated 11.10.1958 was not marked

in O.S.No. 430 of 1996, but, however, there is a reference about the said Will in that suit. The Will dated 11.10.1958 was filed and marked only

in O.S.No. 458 of 1996 and if that be so, it is not known how the contents and other particulars in the document marked in one case was

discussed in the other suit and I am of the view that the approach made by the trial Court as well as the lower appellate Court is not proper and

correct. It is settled position of law that the evidence oral and documentary marked in one case cannot be treated as evidence in the other cases

unless there is joint trial of both the cases.

Learned Counsel for the appellants in both the second appeals contended that the plaintiff has miserably failed to prove the oral partition and in

the absence of the same, the sale in favour of the plaintiff has to fail. The appellants have let in sufficient evidence and in the non examination of the

attestors relating to the Will, the evidence of the scribe was sufficient to prove the same. The documents produced by the plaintiff are subsequent

to the filing of the suit and no reliance can be place on them. There is absolutely no mention in the sale deed dated 15.11.1988 that the suit

property was obtained under oral partition.

Learned Counsel for the appellants relied upon the decision of the Apex Court in Santosh Hazari v. Purushottam Tiwari (dead) by L.Rs.

(2001)2 M.L.J. (S.C.) 69 : (2001)1 Supreme 642 of Civil Procedure Code, wherein it has been observed as follows:

The phrase substantial question of law as occurring in the amended Section 100 is not defined in the Code. The word substantial as qualifying

question of law, means of having substance, essential, real, of sound worth, important or considerable.... A point of law which admits of no two

opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not

previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way,

in so far as the rights of the parties before it are concerned...An entirely new point raised for the first time before the High Court is not a question

involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a

question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious

balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

The same view has also been followed in an unreported judgment of this Court in Second Appeal No. 853 of 1988, dated 24.7.2001. There is no

dispute about this principle. The appellant has raised substantial questions of law in both the appeals that the lower appellate Court came to the

conclusion that the Will has not been proved since none of the attestors were examined and only scribe was examined. It is further stated that the

Will dated 11.10.1958 was not brought out to the world for a period of nearly 40 years. The scribe of the Will has given the evidence and

according to the learned Counsel for the appellant, there is no reason to discredit the same. It is further stated that the oral partition put forward by

the plaintiff has not been established and if that be so, the plaintiff is not entitled to claim right, title and interest by virtue of the sale deed dated

15.11.1988.

Learned Counsel for the appellants/ defendants mainly contended that the oral partition alleged by the respondent/ plaintiff has not been proved

and on the other hand, the Will dated 11.10.1958 was duly proved in accordance with law. The plaintiff by virtue of the sale deed claims to be in

possession and enjoyment of the property and after transfer of patta, he had been paying the kist. The revenue records filed on the side of the

plaintiff clearly and clinchingly established that he continued to be in possession and enjoyment of the property. In fact, the first appellant had no

personal knowledge about the Will projected by her and she came to know about the same though one third party in the year 1968. Even then,

she did not take any steps to get possession of the property or transfer patta in her name or to probate the Will. None of these things have been

done by the appellants. It is only under such circumstances, the lower appellate Court came to the conclusion that the Will dated 11.10.1958 has

not been duly proved in accordance with law. The evidence in this case also indicates that the testator was laid up with paralytic attack even one

year prior to the death and under the circumstance, whether the Will was executed while he was in a sound and disposing state of mind itself is a

doubtful question. It is admitted that out of the two attestors, one is alive and the other is not available. Even assuming that one of the attestors,

who is alive, is unable to move out, nothing prevented the appellants from taking out a commission to examine him. No doubt, the scribe of the Will

was examined, but that is not sufficient to prove the Will. Considering the fact that the appellants failed to examine anyone of the attestors to the

Will coupled with the fact that the Will dated 11.10.1958 was not relied upon in any proceedings for a period of nearly 40 years, there is no

difficulty in coming to the conclusion that the Will was not proved.

There are materials to come to the conclusion that the oral partition alleged by the respondent/plaintiff could be true. The sale deed is dated

15.11.1988, but there is no reference about the oral partition. On the other hand, it is no doubt stated that the vendor had obtained right

ancestrally. But the Will relied upon by the first appellant herself provide a clue that there must have been an earlier oral partition. A plain reading

of the Will dated 11.10.1958 clearly indicates that there was a panchayat and there was oral partition also and it is extracted as follows:

When the appellants place reliance upon the Will, now it is not open to them and deny the oral partition. In fact, the appellants are estopped from

putting forward a plea against the oral partition. In pursuance of the transfer of patta, admittedly the respondent has been paying tax and prior to

that, his vendors have paid the same. In pursuance of the sale deed, it is proved that the respondent also cleared the earlier encumbrance and got

back the document.

Considering the overwhelming documentary evidence filed on the side of the respondent/ plaintiff, it is clearly proved that the vendor of the

respondent has got title and by virtue of the sale deed, the plaintiff has also acquired title to the property. I am unable to agree with the contention

of the learned Counsel for the appellants that there was non-application of mind on the part of the lower appellate Court and the other grounds

have not been substantiated. There is no reasonable explanation on the part of the appellants for not relying on the Will at least from the year 1968

to 1996. No reason had also been assigned on the part of the appellants to disinherit the other heirs by executing the Will. In my view, the lower

appellate Court has correctly considered various contentions of the parties and there is no illegality of infirmity calling for interference. Hence, the

points are answered accordingly.

For the reasons stated above, both the second appeals fail and accordingly dismissed. There will be no order as to costs. Consequently,

C.M.P. Nos. 3803 and 3804 of 2000 are also dismissed.