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Judgment
Honourable Mr. Justice G. Rajasuria
This Second Appeal is focussed by the original 1st defendant animadverting upon the judgment and decree dated 23.02.2007, passed in A.S.No.176 of 2005 by the learned Principal Subordinate Judge, Tenkasi in reversing the judgment and decree dated 28.09.2005, passed in O.S.No.3 of 2004 by the learned District Munsif, Senkottai. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
A recapitulation and re''sume'' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The first respondent/plaintiff herein, filed the suit, seeking the reliefs of declaration and injunction in respect of two schedules of properties comprising of various items in each Schedule.
The gist and kernel of the averments as found set out in the plaint would run thus:
One Paul Vannam Nadar had two sons, namely Ramalinga Nadar and Ganapathy Nadar and they were jointly in enjoyment of the ancestral properties. Paulvannam Nadar died interstate leaving behind his two sons Ramalinga Nadar and Ganapathy Nadar. Ramalinga Nadar had two wives. Through his first wife he begot all the defendants, namely Sankaravelsamy, Pappathi, Ganthimathi and Velammal and through his second wife he begot Paul Vannam, the plaintiff herein. It so happened that there emerged a partition between Ramalinga Nadar and his brother Ganapathy Nadar in respect of their ancestral properties. Subsequently, the said Ramalinga Nadar during his life time got the ancestral properties partitioned among himself and his two sons, namely Paul Vannam and Sankaravelsamy. Thereafter, a part of the 1/3rd share of Ramalinga Nadar obtained in the said partition was settled by him vide settlement deed dated 23.05.1985, in favour of the first defendant. A partition deed dated 10.03.1997, emerged between Ramalinga Nadar and his deceased brother Ganapathy Nadar''s son Thangavelsamy, in respect of the items 6 and 7 and other additional items and in that items 6 and 7 of the 1st Scheduled properties of the plaint were allotted to Ramalinga Nadar, who by virtue of the two settlement deeds dated 12.04.2000 and 12.04.2000 settled items 6 and 7 of the I Scheduled property in favour Paul Vannam, the plaintiff. Ramalinga Nadar died leaving no properties to be inherited by his children. The grievance of the plaintiff is that after the death of Ramalinga Nadar, the defendant No. 1 being not satisfied with the II Scheduled properties, which were exclusively allotted to him in the partition as well as by way of settlement deed dated 23.09.1985, started giving disturbances to the exclusive possession and enjoyment of the 9 items of properties as described in the I Scheduled property by the plaintiff. Hence, the suit for declaration and permanent injunction.
Per contra, denying and refuting the averments and allegations made in the plaint, the first defendant alone filed the written statement, the pith and marrow of them would run thus:
Items 6 and 7 could not have been validly settled by Ramalinga Nadar in favour of Paul Vannam, because those items 6 and 7 also form part of the ancestral nucleus and at the time of earlier partition dated 18.09.1985, those two items were not partitioned because Ramalinga Nadar and his deceased brother Ganapathy Nadar''s son Thangavel Samy, were jointly enjoying those items and they got it partitioned only during the year 1997. As such relating to item 6 and 7 of the I Scheduled properties, the plaintiff is having no right to seek declaration and permanent injunction and those two items are necessarily be the subject matter of partition to be effected between the plaintiff and the first defendant.
Whereupon, the relevant issues were framed by the trial Court.
During trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.11 on his side. On the side of the defendants, the 1st defendant examined himself as D.W.1 and marked Exs.B.1 and B.2.
Ultimately, the suit was decreed by the trial Court except in respect of items 6 and 7 of the I Scheduled properties because those items of properties were not partitioned between the plaintiff and the first defendant and as against which the appeal was filed by the plaintiff.
Whereupon the first appellate Court reversed the judgment and decree of the trial Court in respect of items 6 and 7 of the I Scheduled property and decreed the suit in toto.
Challenging and refuting the correctness of the judgment of the first appellate Court, the Second Appeal has been focussed by the first defendant on various grounds and also suggesting the following substantial questions of law:
(a) Whether the finding of the lower appellate court that the properties inherited by Ramalinga Nadar, his father is not an ancestral properties in nature is incorrect and hence warrants interference?
(b) Whether the finding of the lower appellate court that item No. 6 and 7 of the 1st schedule properties are separate properties of Ramalinga Nadar, when all the properties were treated as common property of the family by Ramalinga Nadar and when there is no intention on the part of Ramalinga Nadar to treat item No. 6 and 7 as his separate property and when under Ex.A.8 it is mentioned that those properties were jointly enjoyed by the family members is wrong and hence warrants interference?
(c) When the lower appellate court has not discussed nowhere in its judgment how the finding of the trial court in respect of item No. 6 and 7 is wrong whether its judgment is vitiated and warranting interference?
(Extracted as such)
My learned predecessor at the time of admitting the Second Appeal, framed the following substantial questions of law:
(a) Whether the finding of the lower appellate court that the property inherited by Ramalinga Nadar, father of the appellant is not an ancestral property is perverse on account of its failure to consider the pleadings as well as the evidence in their proper perspective?
(b) Whether the finding of the lower appellate court that item No. 6 and 7 of the first schedule properties are separate properties of Ramalinga Nadar, when all the properties were treated as common property of the family by Ramalinga Nadar and when there is no intention on the part of Ramalinga Nadar to treat item No. 6 and 7 as his separate property and when under Ex.A.8 it is mentioned that those properties were jointly enjoyed by the family members is wrong and hence warrants interference?
(Extracted as such)
The aforesaid substantial questions of law are taken up together for discussion as they are inter-linked and interwoven, entwined and intertwined with each other.
Heard the learned counsel for the appellant/first defendant and the learned counsel for the first respondent/plaintiff.
The learned counsel for the appellant/first defendant reiterating the grounds of appeal has put forth and set forth his arguments, which could tersely and briefly be set out thus:
The first appellate Court has failed to take into account the fact that absolutely there were no pleadings in support of the case as put forth by the plaintiff in the course of trial. The plaintiff was silent as silence could be, relating to the fact as to how items 6 and 7 had come into the possession of Ramalinga Nadar. Nothing could be presumed unless law envisages such presumption in favour of the plaintiff. The plaintiff assumed as though Ramalinga Nadar''s mother Velammal inherited items 6 and 7 of the I Scheduled properties from her brother Kulathuran Nadar, who allegedly died without any issues and that consequently Velammal, his only legal heir inherited the property and in turn the said property came into the hands of family of Paul Vannam Nadar, not as the ancestral property but the property inherited from the female side. Any amount of evidence without pleadings should be eschewed, but in this case the first appellate Court ignoring the well settled proposition of law simply, decreed the suit in favour of the plaintiff in toto. No doubt Ex.A.11, the mortgage deed and even the additional document referred to in the M.P.(MD) No. 1 of 2011 would exemplify and demonstrate that Kulathuran Nadar had some right over the property, but that does not mean that he died issueless and on his death, the properties devolved upon Velammal and thereafter, it came into hold of the family of Paul Vannam Nadar. There is no smidgeon of evidence as to when Kulathuran Nadar and Velammal died and whether she died before the coming into vogue of the Hindu Succession Act, 1956 or after that. The first appellate court simply assumed and presumed as though items 6 and 7 of the suit I Scheduled Properties are the properties of Velammal and decreed the suit without any pleadings and proof. Accordingly, he prayed for setting aside the judgment and decree of the first appellate Court and to restore the judgment and decree of the trial Court.
At the outset, I would like to fumigate my mind with the following maxim "Judicis est judicare secundum allegata et probata." [It is the proper role of a judge to decide according to the allegations and proofs.]
Accordingly, if seen, it is crystal clear that the plaint does not disclose anything about the origin of the title to items 6 and 7 of the I Scheduled properties. In paragraph 6 of the plaint, it is found set out by the plaintiff that all the scheduled properties are ancestral properties of the family of Paul Vannam Nadar, the grandfather of the plaintiff and when such is candid and categorical admission of the plaintiff, I am at a loss to understand as to how P.W.1 could put forth a new case during trial as though items 6 and 7 in the I Scheduled properties should not be treated as ancestral properties and that they allegedly came into the family through the female heir, namely Velammal. The fact also remains that the grand-father of the plaintiff and the first defendant, namely Paul Vannam Nadar was in possession and enjoyment of ancestral property and even according to the plaintiff herein during the life time of Paul Vannam Nadar, through his wife Velammal the said items 6 and 7 of the I Scheduled properties came into the family; whereupon Paul Vannam Nadar and Velammal jointly mortgaged part of those properties.
Doctrine of blending was applied by the trial Court but it was not at all considered by the appellate Court. In paragraph 6 of the plaint, it is found set out that the plaint I and II Scheduled properties constitute the ancestral properties coupled with the self-acquired properties of Ramalinga Nadar.
There can be no presumption that the said Kulathuran Nadar died issue less and there is no iota or shred, shrad or jot, miniscule or molecular extent of evidence to establish and prove as in which year Kulathuran Nadar died and how Kulathuran Nadar''s sister Velammal became his legal heir and that anterior to the emergence of Hindu Succession Act, 1956, the law was to the effect that on the male dying issueless, his sister would come into the picture as legal heir entitled to enjoy it for her life and not as absolute owner and on her death the property would revert back to the distant male heir of the deceased original owner. These are complicated facts which ought to have been pleaded and proved. Simply because items 6 and 7 of the I Scheduled properties came into the family of Paul Vannam Nadar, it does not mean that those properties came into the family through Velammal.
I recollect and call up the maxim "In re dubia magis infitiatio quam affirmatio intelligenda" [In a doubtful matter, the negation is to be understood rather than the affirmation.], which means that when evidence is lacking, the negative should be presumed and not the affirmative. The first appellate Court has clearly fell into error ignoring the above maxim warranting interference in the Second Appeal.
Apart from P.W.1, the plaintiff, no one was examined to prove any thing touching upon the aforesaid circumstances, which have been discussed supra. The preponderance of probabilities would govern the adjudication in civil cases. Ex.A.8 would indicate and exemplify, demonstrate and display that Ramalinga Nadar and his deceased brother Ganapathy Nadar''s son Thangavelsamy, got partitioned items 6 and 7 in the I Scheduled properties along with other items treating them as ancestral properties. There is nothing to indicate that Ramalinga Nadar and Ganapathy Nadar''s son Thangasamy Nadar were inimical towards the plaintiff and his family. During the year 1997 consciously Ramalinga Nadar and Ganapathy Nadar''s son Thangasamy Nadar treating the said items 6 and 7 in I Scheduled properties as ancestral properties, got partitioned them and in that partition items 6 and 7 of the I Scheduled property were allotted to the share of Ramalinga Nadar, who got them in his representative capacity alone because the ancestral properties could not be got partitioned in one''s individual capacity, in the event of off springs being in existence to the parties to the partition. As such in the wake of the aforesaid documentary evidence and the circumstances stood exemplified and proved, I am of the view that the first appellate Court was wrong in holding that items 6 and 7 should be declared as the absolute properties, which allegedly belonged to the plaintiff. Ramalinga Nadar in the settlement deeds Ex.A.2 and A.3 while settling the other properties also settled items 6 and 7 in the I Scheduled properties in favour of Paul Vannam, which itself is indicative of the fact that Ramalinga Nadar was not against the interest of his son, the plaintiff Paul Vannam. In the year 1997 at the time emergence of Ex.A.8, Ramalinga Nadar candidly and categorically labelled, dubbed and portrayed items 6 and 7 as the ancestral properties of his father Paul Vannam Nadar, while so quite antithetical to his commitments in the earlier partition deed, he was not justified in simply settling those items in favour of the plaintiff as though they were his own properties.
In the light of the above discussions, the additional documents sought to be filed by the plaintiff, could not be entertained at this stage.
Accordingly, the substantial questions of law are answered to the effect that the finding of the lower appellate court that item Nos. 6 and 7 of the 1st schedule properties are separate properties of Ramalinga Nadar, was perverse. On balance, the Second Appeal is allowed and the judgment and decree of the Principal Subordinate Judge, Tenkasi dated 23.02.2007, made in A.S.No.176 of 2005 are set aside and the judgment and decree of the District Munsif, Senkottai dated 28.09.2005, made in O.S.No.3 of 2004 are restored. However, there is no order as to the costs. Consequently, connected M.P. (MD) Nos. 2 of 2008 and 1 of 2011 are closed.