Subbarayan vs Murugesan and 3 others

M. Karpagavinayagam, J.—Subbarayan, the plaintiff is the appellant herein. He filed the suit for declaration and permanent injunction. The

trial Court dismissed the suit. Aggrieved by the same, the plaintiff filed an appeal. The lower appellate Court also has confirmed the same by

dismissing the appeal. Hence, this second appeal. The case of the plaintiff, the appellant herein as follows:

The suit property belonged to one Natesa Pillai. He executed a deed on 1.2.1989 under Ex.A-17 in favour of one Kuppammal, P.W.2 conferring

his rights in respect of the said property. The said Kuppammal thereafter effected mutation in the Revenue records and had patta issued in her

name. On 11.9.1995, Subbarayan, the plaintiff purchased the suit property for a valuable consideration from Kuppammal. From then onwards, the

plaintiff has been in possession and enjoyment of the property. He received the lawyer''s notice from the defendants stating that the suit property

belonged to the first defendant, which was purchased from the second defendant. Though it was suitably replied by the plaintiff, there was a

constant disturbance to his possession. Therefore, he filed the suit for declaration and permanent injunction.

The case of the defendants/ respondents is as follows:

The suit property as well as other properties were purchased by one Ramasamy Pillai in the name of his brother Muthusamy. Since Muthusamy

was in foreign country, he allowed Ramasamy to enjoy the properties. After the death of the said Muthusamy and Ramasamy, Natesa Pillai, the

son of Muthusamy came to India and received some amount from Ramasamy''s three daughters, viz., Kuppammal, Thaiyalnayagi and Jayalakshmi

and relinquished his right in their favour. Accordingly, the properties were enjoyed by all the three daughters jointly. These properties were divided

among themselves. Thereafter, they sold the portions of the properties allotted to them to various parties. The deed stated to have been executed

by Natesa Pillai in the year 1989, that is, Ex.A-17 is not a valid document. The suit property was purchased by the first defendant from the second

defendant, who is the husband of Thaiyalnayagi, one of the sisters, on 11.9.1995. Therefore, the plaintiff cannot claim any title or relief of

injunction.

On the basis of these pleadings, issues were framed. On behalf of the plaintiff, P.W.1, the plaintiff, P.W.2 Kuppammal and P.W.3 Kanna Pillai

were examined and Exs. A-1 to A-17 were marked. On the side of the defendants, the second defendant was examined as D.W.1 and the first

defendant was examined as D.W.2 and Exs. B-1 to B-15 were marked.

On considering the materials on record, the trial Court concluded that the deed Ex.A-17 executed by Natesa Pillai in favour of Kuppammal is a

Will and since it was not proved that the said Natesa Pillai died, Kuppammal would not be entitled to get the right of selling the property and

consequently, the plaintiff''s reliefs sought for in the suit cannot be granted. The lower appellate Court also while confirming the judgment and

decree passed by the trial Court would hold that there is no evidence to show that Natesa Pillai, who was the owner of the suit property, died and

therefore, the sale deed executed not only by P.W.2 in favour of the plaintiff but also the other sale deeds executed by other sisters are not valid.

Challenging these concurrent findings, the plaintiff has filed this second appeal.

Mr. Raghavachari, the learned Counsel for the appellant would attack both the judgments by raising the following contentions:

Both the Courts below upheld that Ex. A-17, the Will executed by Natesa Pillai in favour of Kuppammal, P.W.2 is a true and valid document,

though it was contended by the defendants that the said deed was not executed by the said Natesa Pillai. Having held so, the Courts below should

not have declined to uphold the claim of the plaintiff/appellant, especially when the claim of the defendants that the property had been purchased

benami by Ramasamy in favour of Muthusamy, father of Natesa Pillai, had been rejected. After execution of Ex.A-17 dated 1.2.1989 for over

seven years, none had heard about the said Natesan including the rival claimants. Under such circumstances, the Courts below should have applied

the principles u/s 108 of the Evidence Act and declared the said Natesan is civilly dead. That apart, both the Courts have accepted the case of the

plaintiff and placed reliance on P.W.2 Kuppammal, rejected the relief of permanent injunction, despite the fact that the Revenue records produced

before the Court on behalf of the plaintiff would show that the properties stood in the name of Kuppammal and she had been in possession and

enjoyment of the properties and after the sale deed Ex.A-12, the plaintiff has been in enjoyment of the suit property. The appellant has a good

claim against the entire world than the respondents. If at all, the legal representatives of the said Natesan alone are entitled to challenge: the title of

the appellant.

In elaboration of the above point, the learned Counsel for the appellant would argue at length.

As correctly pointed out by the learned Counsel for the appellant, Ex.A-17 has been held to be a true and valid document. But, it shall be stated

that it cannot be construed as a settlement deed. Both the Courts below considering the evidence of P.W.3, one of the attesters of the Will and the

evidence of P.W.2, a legatee and on the basis of the recitals contained in Ex.A-17, would give the clear finding that it is not a settlement deed, but

it is a Will. Therefore, the entire right over the suit property would devolve upon the legatee, viz. P.W.2 only after the death of the testator.

The leaned Counsel would point out Sections 107 and 108 of the Indian Evidence Act (hereinafter called as ''the Act''). There is not even a

shred of evidence to hold that the requirements of Section 107 or 108 of the Act have been complied with.

As per Section 107 of the Act, when the question is whether a man is alive or dead, and is shown that he was alive within thirty years, the

burden of proving that he is dead is on the person who affirms it. u/s 108, if it is the case of a party that person is alive who has not been heard of

for seven years, the burden of proving that he is alive is on the person who affirms it.

So, the conjoint reading of Sections 107 and 108 of the Act would make it clear that the initial burden would lie on the plaintiff to say that

Natesa Pillai is dead, who was alive within thirty years. P.W.1, the plaintiff would not state anything about it.

The proper party, who has to adduce evidence with reference to Section 107 of the Act is P.W.2 Kuppammal, who got the right over the

property after the death of Natesa Pillai. But, she would imply state:

This statement would not show that the burden, which is referred to in Section 107 of the Act has been discharged. On the other hand, it is the

case of the plaintiff that the said document Ex.A-17 should be construed as a settlement rather than a Will.

As correctly pointed out by both the Courts below, the plaintiff ought to have taken some steps to find out whether Natesa Pillai was alive in

Australia before claiming the right as per the Will. As a matter of fact, the Will was executed on 1.2.1989. But, within seven years, even without

verification whether the said Natesa Pillai was alive or not, P.W.2 sold the suit property to the plaintiff on 11.9.1995 under Ex.A-12. in such

circumstances, the submission made on the basis of Section 108 of the Act, cannot be accepted.

Similarly, the patta and other records have been produced by both the parties. In fact, one portion of the suit property had already been sold

by another sister in favour of one Natesan. As admitted by the defendants, the different portions of the properties were sold to various parties

claiming that those properties were allotted to them in the partition effected between the sisters.

Under those circumstances, the Revenue records have been produced by both the parties in order to prove their respective pleas. In such a

situation, the documents produced by the plaintiff would not be sufficient to hold mat Kuppammal, P.W.2 was the exclusive owner of the suit

property and that she had right to sell the said property in favour of the plaintiff.

As indicated above, the reliefs claimed by the plaintiff in the suit are mainly on the basis of Ex.A-17, the Will and Ex.A-12, the sale deed

executed by the legatee in favour of the plaintiff. When it is held on facts by both the Courts below that Ex.A-17 has not been acted upon, since

the testator has not been proved to be dead, the reliefs sought for by the plaintiff in pursuance of those documents cannot be granted. Under those

circumstances, I am not able to persuade myself to hold that the factual findings rendered by both the Courts below are wrong and as such, the

second appeal is liable to be dismissed as there is no substantial question of law and accordingly, the same is dismissed. Consequently, C.M.P.

No. 7779 of 2001 is also dismissed.