Sundaram vs Christalip Suseela Bai

R. Mahadevan, J.—This Second Appeal has been filed challenging the Judgment and Decree dated 26.10.2006 passed in A.S. No. 13 of 2004 on the file of the sub-court, Kulithurai, in confirming the Judgment and Decree dated 29.1.2004 passed in O.S. No. 681 of 1996, on the file of the Principal District Munsif, Kulithurai.

For the sake of convenience, the parties are referred to according to their litigative status before the Trial Court.

The case of the Plaintiff as averred in the Plaint, is thus:

3.1. The Plaintiff is the wife of the Defendant. The Suit property is a plot having an extent of 2� cents comprised in Old Sy. Nos.2695 (R.Sy. No. 194/8) and 2704 (R.S. No. 194/9) of Pacode Village, wherein there is a shop building bearing Door No. 16/49. It belonged to one Selvaraj son of Thankayyan of Pacode Village and on 28.7.1988, the Plaintiff purchased the Suit property with her own fluids in her name and in the name of her husband, the Defendant herein. Therefore, the Plaintiff and the Defendant got title and possession over the Suit property.

3.2. Though the Suit property was purchased with the funds of the Plaintiff alone, the Defendant is also entitled to � share since the document stands in his name also and the Plaintiff is entitled to � share and the Defendant is entitled to the other � share in the Suit property. The Plaintiff and the Defendant were staying in the house of the Defendant in another property. About 4� years ago, the Defendant deserted the Plaintiff and their three children and they were driven out from the house of the Defendant. The Plaintiff and the children are now residing in a rented building.

3.3. After desertion, the Plaintiff and the children are put to starvation as the Defendant refused to maintain the Plaintiff and the children and hence, they filed a Petition for Maintenance before the Judicial First Class Magistrate''s Court of Kuzhithurai, which is pending. The Suit building, which is a Shop, is an old one and also in a dilapidated condition. The Plaintiff has no other house of her own to reside except the Suit property. Repair works have to be carried out and the Shop building has to be converted into a Residential house. However, the Defendant is not allowing the Plaintiff to make the same. He is also attempting to sell away his half share so as to render the Plaintiff and her children homeless. He has no right to sell away his share since that share and his other assets are the subject to the maintenance of the Plaintiff and her children.

3.4. According to the Plaintiff, the joint possession of the Suit property causes much inconvenience in the matter of effecting repairs and improvements of the Suit property. Therefore, the Plaintiff is entitled to get her half share partitioned and she is entitled to have separate possession of the same the Plaintiff is also entitled to have the other half share of the Defendant allotted to her in lieu of her maintenance. The Kuzhithurai-Melpuram Road runs just east of the Suit property. Therefore, at the time of partition, the Plaintiffs � share may be allotted with proportionate road frontage. In spite of repeated demands made by the Plaintiff, finally on 3.10.1996, the Defendant is not amenable to settle the matter out of Court. Hence, the present Suit.

In the Written Statement filed by the Defendant, it is, inter alia, averred thus:

4.1. The Suit is a vexatious one and the same is not maintainable. The Plaintiff has no manner of right of possession over the Suit property the Suit property originally belonged to Japamony, son of Joseph and he was in possession of the same. From Japamony, the Defendant purchased in the name of Selvaraj son of Thankayyan in 1987. As a matter of fact, the entire amount was given to Selvaraj by the Defendant. With the amount given by the Defendant, the said Selvaraj purchased the property. On 28.7.1988, the Defendant took the document in the name of the Defendant and his wife, the Plaintiff. Out of love and affection alone, the name of the Plaintiff was included. The amount of Rs. 4,000 was paid by the Defendant in the year 1987 when the parent document was taken in the name of Selvaraj. The original document was taken by the Plaintiff when she left the house of the Defendant. On 28.7.1988, only a sum of Rs. 100 was paid to Selvaraj. The Plaintiff did not spend even a single pie for purchasing the Suit property. The Defendant met out the expenses for executing the Sale Deed. It was presented by the Defendant for registration. The entire Sale Consideration was paid only by the Defendant and the same was reflected in the Sale Deed also. It was not purchased with the fund of the Plaintiff, but only by the Defendant out of his own funds and therefore, the Plaintiff is not entitled to get any share in the Suit property. She has no right at all in the Suit property.

4.2. The Defendant admitted that the Plaintiff is his wife and three children were born to them. The Defendant denied the fact that he deserted the Plaintiff, however, made an allegation that she has lived in adultery for some years. According to him, one female child aged 11, is living with the Defendant. She ran away from the house of the Defendant. The Plaintiff has no right over the Suit building or the Suit property. One soosaiappan demolished the wall of the building. The wall and other portions fell down. So the Defendant filed a Suit for damages against Soosaiappan in O.S. No. 15 of 1996 before the Sub-Court and the Suit is still pending for disposal. To restore the wall and other structures to its original position, at least, a sum of Rs. 50,000 have to be spent. The Plaintiff has no right, or possession over the Suit property and in the Sale Deed, there is a recital, which proves that the Defendant alone paid the entire consideration for executing the document. Since he is a Government servant and out of love and affection, he took the document in the name of two persons. By inclusion of the name of the Plaintiff, she cannot claim any right over the Suit property. The entire Sale Consideration was paid only by the Defendant. The Defendant is in possession of the Suit property. The Plaintiff has no right to claim Partition. Hence, he prayed for the dismissal of the Suit.

In reply, the Plaintiff filed a Rejoinder stating that the contentions raised in the Written Statement against the Plaint claim are vexatious and devoid of merit. The allegation that the Defendant purchased the property in the name of Selvaraj, are denied as baseless. The Defendant did not pay even a single pie to purchase the property. Such contentions are raised to defame the Plaintiff. The Defendant is an adulterer and be is living in adultery and also denied the allegations made in the Written Statement and prayed for decreeing the Suit.

On the above pleadings, the Trial Court framed two issues.

During trial, the Plaintiff examined herself as PW1 and marked Ex.A1. On the side of the Defendant, the Defendant examined himself as DW1 along with DW2 and also marked Exs.B1 & B2. Ex.C1 was also marked as court document.

On consideration of the materials available on record, the Trial Court decreed the Suit as prayed for. Aggrieved over the same, the Defendant filed the Appeal in A.S. No. 13 of 2004 on the file of the Sub-Court, Kulithurai. The First Appellate Court dismissed Appeal filed by the Defendant and confirmed the Judgment and Decree passed by the Trial Court.

Challenging the same, the Defendant has filed the present Second Appeal.

At the time of admitting the Second Appeal, this Court framed the following Substantial Questions of Law:

"(1) Whether the findings of the Courts below to the effect that the facts which have not been pleaded cannot be taken as evidence and the same cannot be accepted to prove the contentions which is contrary to the pleadings of the Appellant are perverse ?

(2) Whether the Courts below are correct in coming to the conclusion that the Appellant has not proved the purchase from out of his own funds which the Appellant has proved the same by the recitals in Ex.A1 relied on by the Respondent ?

(3) Whether the Courts below are correct in not considering the evidence of DW2 which resulted in grave miscarriage of justice ?

(4) Whether the Courts below are correct in decreeing the Suit for Partition of � share while the Respondent has miserably failed to prove the means to purchase the Suit property ?

(5) Whether the Plaintiff must loose or win on his own pleadings ?"

The learned Counsel for the Appellant/Defendant, by drawing the attention of this Court to the Judgments of both the Courts below, made the following submissions:

11.1. Both the Courts below failed to appreciate the fact that the Defendant alone paid the entire Sale Consideration to execute Ex.A1 - the Sale Deed, relating to the shop building, in the name of one Selvaraj, but the same has not been considered by the Courts below, despite he deposed as DW2.

11.2. The fact that the Appellant/Defendant is the Owner of the Suit property is proved by the Judgment rendered in O.S. No.15 of 1996, wherein the said Suit came to be decreed in favour of the Appellant/Defendant herein.

11.3. Due to love and affection alone, the Appellant Defendant got executed the Sale Deed in the name of his wife also and no amount has been spent by her at the time of registration of the Suit property.

11.4. Though the Appellant/Defendant proved his case by way of recitals in Exs.A1, the Court below failed to consider the same and erred in decreeing the Suit.

11.5. Both the Courts below, without considering the evidence of DW2, found that the Respondent/Plaintiff is entitled to her half share by way of partition, which, is not tenable in law.

11.6. Hence, he prayed for setting aside the Judgments of both the Courts below and for allowing this Second Appeal.

Whereas the learned Counsel for the Respondent/Plaintiff refuted the claim of the Appellant Defendant and contended thus:

12.1. The Trial Court has considered the materials available on record and found that the Plaintiff has proved her case and accordingly, decreed the Suit as prayed for.

12.2. At the same time, the Defendant failed to prove his case that he had paid the entire Sale Consideration to purchase the Suit property and therefore, the Trial Court has rightly rejected his plea.

12.3. On Appeal, the First Appellate Court confirmed the findings of the Trial Court and dismissed the same.

12.4. Since the Appellant/Defendant did not adduce any iota or shred of evidence in support of his claim, the Courts below have rightly rejected his claim and accordingly, upheld the case of the Respondent/Plaintiff and therefore, no interference is warranted by this Court in exercise of Section 100 of the Civil Procedure Code and prayed for the dismissal of the Second Appeal.

Heard the learned Counsel for the Appellant Defendant as well as the learned Counsel for the Respondent/Plaintiff and perused the materials available on record.

It is the case of the Plaintiff that she has contributed to purchase the Suit property and in such an event, the plea of the Defendant that the Plaintiff did not contribute any amount to purchase the Suit property is to be weighed in the light of the evidence available on record. The Trial Court has considered the evidence of DW1 & DW2 in detail and rightly held that the Plaintiff is entitled to claim � share in the Suit property based on the recitals in Exs.A1, wherein the names of the Plaintiff as well as the Defendant were found.

The first Appellate Court has also appreciated the evidence adduced by both sides and gone through the documentary evidence and rightly confirmed the Judgment and Decree passed by the Trial Court, which, in the opinion of this Court, is sustainable in law. No valid documentary evidence has been produced by the Appellant/Defendant to defend his case that the Respondent Plaintiff did not spend any amount to purchase the Suit property and in the absence of the same, the plea of the Appellant/Defendant is not admissible. On an overall assessment of the materials available on record, both the Courts below have rightly come to the conclusion that the Respondent Plaintiff is entitled to her � share in the Suit property and therefore, the Appellant Defendant miserably failed to prove his case that the Respondent Plaintiff is not entitled to the relief of Partition.

Moreover, on a perusal of the Judgment of the Trial Court, this Court, finds that the Trial Court has dealt with the material evidence, both oral and documentary, in an elaborate manner and decreed the Suit as prayed for. The entire Judgment of the Trial Court is based upon facts.

No doubt, the Trial Court is a fact finding Authority and the Trial Court has rightly held that the Plaintiff is entitled to the relief as claimed by her, and the First Appellate Court also confirmed the findings of the Trial Court and dismissed the Appeal. The reasons given by the Courts below are clear, cogent, convincing and acceptable.

The Trial Court as well as the First Appellate Court considered the material evidence placed before it in their proper perspective and granted the relief sought for by the Plaintiff. In a case, where from a given set of circumstances, two inferences on fact are possible, one drawn on by the First Appellate Court will be preferred and the High Court, in exercise of its jurisdiction under Section 100 of the Civil Procedure Code, is not justified in interfering with those findings. It is only when the conclusion drawn by the First Appellate Court is found to be contrary to the mandatory provisions of law applicable to a particular matter or is against the settled position on the basis of decisions of the Honourable Apex Court or is based upon inadmissible evidence or arrived at by ignoring material evidence that the High Court is expected to interfere in the findings of the Courts below:

The Judgment of the Trial Court as well as the first Appellate Court are found to be perfectly correct and the findings cannot be termed to be erroneous either in law or on facts requiring interference in the Second Appeal. Thus, this Court finds no merit in the contentions of the Appellant and accordingly, all the Substantial Questions of Law are answered as against the Appellant.

In the result, the Second Appeal fails and the same is, accordingly, dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition is dismissed.