2024:MHC:2910S.A.No.1900 of 2002

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12.07.2024

CORAM

THE HON'BLE MR.JUSTICE S.SOUNTHAR

S.A.No.1900 of 2002

1.Kaliaperumal @ Kaliaraj (Died) ... Appellant/3rd Respondent

3rd Defendant

2.Malarvizhi

3.Shanmugaveni

4.Killivalavan

5.Lakshmi

6.Minor Kavitha ... Appellants 2 to 6

Represented by Mother & Guardian

/ 2nd Petitioner.

(Appellants 2 to 6 brought on record as

legal heirs of deceased sole appellant vide

Court order, dated 17.03.2016 made in

M.P(MD)No.1 of 2015 in S.A.No.1900 of

2002)

Vs.

1.Thamaraiselvi ... 1st Respondent/Appellant

Plaintiff

2.Dhanakodi Ammal (Died) ... 2nd Respondent/2nd Respondent

2nd Defendant

3.Valarmathi

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S.A.No.1900 of 2002

4.Karunanithi

5.Annadurai

6.Indiraganthi ... Respondents 3 to 6

(Respondents 3 to 6 are brought on record as

LRs of the deceased second respondent vide

Court order, dated 15.02.2022 made in

C.M.P.Nos.2998 to 3000 of 2019 in S.A.No.

1900 of 2002)

PRAYER : Second Appeal filed under Section 100 of the Civil

Procedure Code, against the judgment and decree, dated 29.10.2001

made in A.S.No.77 of 2001 on the file of the Principal District Judge at

Thanjavur reversing the judgment and decree, dated 28.01.1998 made in

O.S.No.489 of 1996 on the file of the District Munsif Court at Thanjavur.

For Appellants : Mr.V.K.Vijayaraghavan

For R-1 : Mr.C.Sundaravadivel

For R-2 to R-6 : No appearance

JUDGMENT

The third defendant in the suit is the appellant herein.

2. The first respondent herein filed a suit for declaration of title

and injunction in respect of suit 'B' and 'D' Schedule properties with

alternative prayer for partition of 1/3

rd

share in respect of all the suit

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S.A.No.1900 of 2002

properties, namely, suit 'A' to 'D' Schedules. The suit was dismissed by

the Trial Court and on appeal filed by the first respondent / plaintiff, the

First Appellate Court allowed the appeal and decreed the suit and granted

declaration and injunction as prayed for. Aggrieved by the same, the

third defendant has come before this Court.

3. According to the first respondent / plaintiff, the suit properties

originally belonged to one Natesa Merkondar, husband of first defendant

and father of plaintiff and second defendant. He died in the year 1957

leaving the plaintiff and defendants 1 and 2 as heirs to succeed to his

estate. After marriage of the plaintiff and second defendant, the suit

properties and other properties which were not subject of the suit were

divided in an oral partition in the presence of Villagers. The suit 'A'

Schedule properties were allotted to the share of second defendant. The

suit 'B' Schedule properties were allotted to the share of plaintiff. The

suit 'C' Schedule property, dwelling family house was kept as a common

property. It was also agreed that the plaintiff and second defendant shall

pay five bags of paddy each to the first defendant annually and Rs.100/-

per year towards her maintenance. The said arrangement was accepted

and acted upon by the parties. Some of the properties allotted to the

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S.A.No.1900 of 2002

plaintiff and defendant were sold to third parties by plaintiff, first

defendant and second defendant jointly as per the wish of the purchasers.

Recently, there was mis-understanding between the first defendant and

her daughters, namely, plaintiff and second defendant. She made

attempts to act against the interest of the plaintiff and second defendant.

Therefore, a legal notice was issued on 14.05.1985. It appears first

defendant sold some of the suit properties to third defendant through a

registered sale deed, dated 29.05.1985 and the same was not binding on

the plaintiff and second defendant as first defendant had no right or title

to sell the entire property to third defendant. The first defendant in

collusion with third defendant made attempts to trespass in to the suit

property and hence, plaintiff was constrained to file a suit for above said

relief.

4. The second defendant, sister of plaintiff filed a written statement

supporting the plaint averments.

5. The first defendant remained ex parte and the third defendant,

purchaser of the portion of the suit properties from first defendant filed a

written statement and denied the oral partition pleaded by the plaintiff.

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S.A.No.1900 of 2002

He also claimed that Natesa Merkondar died on 28.03.1956 prior to

coming into force of Hindu Succession Act. Therefore, it was the claim

of the third defendant that first defendant, wife of Natesa Merkondar, got

the properties as a limited owner and the same got enlarged into absolute

estate after coming into force of the Act. It was also pleaded that first

defendant executed a Will in favour of third defendant on 28.05.1992

bequeathing 2 cents of land in R.S.No.89B/60 and 8 cents of plot in

R.S.No.89B/8E in favour of the third defendant. After death of first

defendant, the third defendant has been enjoying the property purchased

by him and also the properties he got under the Will as an absolute

owner. Therefore, he sought for dismissal of the suit.

6. Before the Trial Court, the plaintiff was examined as P.W.1 and

yet another witness was examined as P.W.2. 12 documents were marked

on the side of the plaintiff as Exhibits A.1 to A.12. The third defendant

was examined as D.W.1. The attestor to the sale deed in favour of third

defendant was examined as D.W.2. The attestor to the Will in favour of

third defendant was examined as D.W.3. On behalf of the defendants, 18

documents were marked as Exhibits B.1 to B.18.

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7. The Trial Court on appreciation of oral and documentary

evidence available on record came to the conclusion that, Natesa

Merkondar died on 28.03.1956 prior to coming into force of Hindu

Succession Act and hence, his entire estate would go to his wife first

defendant on the date of his death and after enlargement of the limited

estate, first defendant sold portions of the suit properties, namely, items

1, 2 and 3 in 'B' Schedule, items 2, 3 and 4 in 'A' Schedule and properties

in 'D' Schedule to the third defendant. The properties described in 'C'

Schedule was bequeathed in favour of third defendant. Therefore, the

Trial Court dismissed the suit filed by the plaintiff by holding that

plaintiff was not entitled to any of the reliefs prayed for. Aggrieved by

the same, plaintiff preferred an appeal before the First Appellate Court in

A.S.No.77 of 2001. The First Appellate Court reversed the findings of

the Trial Court on the ground that, death of Natesa Merkondar prior to

coming into force of Hindu Succession Act was not proved. The First

Appellate Court also found that, Will executed in favour of third

defendant under Exhibit B.12 was not proved in accordance with law. As

a necessary consequence, the First Appellate Court decreed the suit by

granting declaration and injunction as prayed for. Aggrieved by the

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same, the third defendant has come by way of this Second Appeal.

8. At the time of admission, this Court formulated the following

substantial question of law by an order, dated 29.11.2002:

"a) Whether the reversing judgment of the

Lower Appellate Court is sustainable in law as it has

not considered the entire evidence available on record

and the relevant provision of law applicable to the

facts of the case?"

9. The learned Counsel appearing for the appellant submitted that

death extract marked as Exhibit B.1 would clinchingly prove that, first

defendant's husband and plaintiff's father Natesa Merkondar died on

28.03.1956 prior to coming into force of Hindu Succession Act and

therefore, daughters cannot claim any right in the property of male

Hindu, who died prior to coming into force of 1956 Act. The learned

Counsel for the appellant submitted that the reasoning given by the First

Appellate Court for ignoring Exhibit B.1 death extract is not sustainable

in law. The learned Counsel for the appellant also submitted that even

assuming Natesa Merkondar died after coming into force of 1956 Act as

a clause 1 heir, first defendant is entitled to 1/3

rd

share in the suit

property. The defendants being purchaser of property from the first

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defendant is entitled to claim equity in respect of 1/3

rd

share of the first

defendant.

10. In the light of the arguments made by the learned Counsel for

the appellant, the following additional substantial question of law is

taken up for consideration in this second appeal:

"b) Whether the finding of the First Appellate

Court that Exhibit B.1 death extract is not a

conclusive proof to prove that Natesa Merkondar died

prior to coming into force of Hindu Succession Act is

legally sustainable?

11. The learned Counsel appearing for the respondents was heard

on both the substantial questions of law. He submitted that D.W.1 in his

evidence clearly admitted there was a partition between Natesa

Merkondar and his father in the year 1962. Therefore, the death of

Natesa Merkondar should have taken place only after 1962. In the light

of the admission of D.W.1, Exhibit B.1 death extract produced by the

third defendant cannot be treated as conclusive proof and in the absence

of corroborating evidence, the same cannot be accepted. In support of his

contention, the learned Counsel for the respondents relied on the

judgment in Satpal Singh Vs. State of Haryana reported in 2010 (8)

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SCC 714. The learned Counsel for the respondents further submitted

that, the third defendant had taken a lead role in execution of Exhibit

B.12 Will, dated 28.05.1992 in his favour. When the said suspicious

circumstance is not dispelled by the propounder, the Will relied on by the

third defendant will not advance his case. In support of the said

contention, the learned Counsel for the respondents relied on AIR 1959

SCC 443 [H.Venkatachala Iyengar Vs. B.N.Thimmajamma and

Others].

12. The plaintiff in the plaint averment pleaded oral partition.

However, there is no enough material evidence available on record to

prove the oral partition pleaded by the plaintiff. In such circumstances,

we have to consider the alternative case set up by the plaintiff.

Alternatively plaintiff contended Natesa Merkondar died subsequent to

1956. Therefore, on his death, the plaintiff was entitled to 1/3

rd

share in

the suit property along with her mother and sister, who were arrayed as

D.1 and D.2. The said claim of plaintiff was mainly resisted by the third

defendant, purchaser of the property from mother on the ground that

Natesa Merkondar died on 28.03.1956 as per death register extract

marked as Exhibit B.1. The learned Counsel for the appellant vehemently

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contended that the death extract produced as Exhibit B.1 conclusively

proves Natesa Merkondar died prior to coming into force of 1956 Act

and in the absence of any contra evidence, the Trial Court rightly relied

on the same to come to the conclusion that Natesa Merkondar died prior

to coming into force of Hindu Succession Act and the said finding was

erroneously reversed by the First Appellate Court. In the normal

circumstances, based on death extract certificate issued by the competent

authority, we can come to the conclusion that death had occurred on the

date mentioned in the said certificate. In the peculiar circumstances of

the case, when appellant / third defendant was examined as D.W.1, he

admitted there was a partition between Natesa Merkondar and his father

in the year 1962. Therefore, even as per the admission of D.W.1, Natesa

Merkondar was alive in the year 1962. In such circumstances, the entry

in Exhibit B.1 with regard to date of death of Natesa Merkondar pales

into insignificance and the presumption created by death extract is

rebutted by the fatal admission made by D.W.1. Therefore, the findings

reached by the First Appellate Court that Exhibit B.1 is not conclusive is

sustainable in law and the question of law b) is accordingly answered

against the appellant.

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13. Once we come to the conclusion that, Natesa Merkondar died

subsequent to coming into force of Hindu Succession Act, plaintiff, first

and second defendants are entitled to 1/3

rd

share each in the suit property.

The third defendant purchased the portion of the suit property from the

first defendant. The other portion was bequeathed to third defendant

under Exhibit B.12 Will. Therefore, it is the contention of the third

defendant that under Exhibit B.2 sale deed and Exhibit B.12 Will, third

defendant is entitled to 1/3

rd

of property covered by the document,

namely, interest of the first defendant in the said property. Therefore, the

1/3

rd

property available to first defendant may be allotted to the share of

third defendant. In order to prove Exhibit B.12 Will, the attestor to said

document was examined as D.W.3. A perusal of the evidence of D.W.3

would suggest that he had clearly deposed about the execution of the

Will and signing of the Will by the testatrix. Therefore, based on

evidence of D.W.3 attestor, we can safely come to the conclusion that

due execution of Will was proved by the third defendant. However, the

First Appellate Court dis-believed the Will by pointing out suspicious

circumstances. The First Appellate Court pointed out two suspicious

circumstances. Firstly, absence of any reasoning for excluding the

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daughters, namely, plaintiff and second defendant in the Will executed

by first defendant. Secondly, it was pointed out that the Will was not

pleaded by third defendant in his original written statement and the same

was pleaded only in the additional written statement filed by him.

14. As far as the exclusion of daughters is concerned, the very

purpose of executing the Will is to tinker with a normal rule of

succession. Therefore, failure to give any reason to exclude the daughters

per se may not be treated as a serious suspicious circumstance

surrounding the Will. On the other hand, it is seen from the records, suit

was filed by the plaintiff claiming partition on 17.07.1986 against mother

and her sister. The Will came to be executed by first defendant mother on

28.05.1992 nearly six years after filing of the suit. Therefore, very filing

of suit for partition by daughter proves mis-understanding between

daughter and mother. Therefore, at the time of execution of Will, there

was no good relationship between testatrix and plaintiff. In such

circumstances, exclusion of daughters in the Will cannot be treated as

un-natural. The same has been over-looked by the First Appellate Court.

As far as additional written statement is concerned, the same was filed

with a leave of the Court and it has become part and parcel of the

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pleadings. Therefore, non-mentioning of the Will in the original written

statement cannot be put against third defendant. Therefore, the finding of

the First Appellate Court with regard to the proof of Will is liable to be

set aside and I hold, Will relied on by the third defendant, dated

28.05.1992 stood proved.

15. In view of the discussion made earlier, I hold that after death

of Natesa Merkondar, plaintiff, 1st defendant and 2nd defendant each

were entitled to 1/3

rd

share in the suit property and the third defendant

being a purchaser / legatee of property from the first defendant is entitled

to work out his equity in respect of 1/3

rd

share of the first defendant. The

sale and Will executed by first defendant in favour of third defendant is

valid to the extent of her 1/3

rd

share alone. The third defendant is entitled

to work out equity in final decree proceedings.

16. In fine,

a) The Second Appeal stands partly allowed by setting aside the

judgment and decree passed by the First Appellate Court.

b) The suit is dismissed regarding prayer for declaration and

injunction.

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c) The plaintiff is entitled to alternative prayer of partition and a

preliminary decree for partition of 1/3

rd

share in the suit property.

d) The sale and Will executed by the first defendant in favour of

third defendant is valid to the extent of 1/3

rd

share of first defendant and

third defendant is entitled to work out his equity in the final decree

proceedings. There shall be no order as to costs.

12.07.2024

NCC : Yes

Index : Yes

Internet : Yes

BTR

To

1.The Principal District Judge,

Thanjavur.

2.The District Munsif Court,

Thanjavur.

3.The Section Officer,

Vernacular Record Section,

Madurai Bench of Madras High Court,

Madurai.

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S.A.No.1900 of 2002

S.SOUNTHAR , J.

BTR

Judgment made in

S.A.No.1900 of 2002

Dated:

12.07.2024

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