C. Thiagarajan v. C. Durai (dead) & Ors.

IN THE HIGH COURT OF JUDICIATURE AT MADRASDATED: 20.06.2008 C O R A MTHE HONOURABLE MR.JUSTICE G.RAJASURIAA.S.NO.242 of 1994C.Thiagarajan .. Appellant/DefendantVs.1.C.Durai (dead)2.D.Ramalingam . . Respondent /Plaintiff (second respondent impleaded as legal representatives of the deceased sole respondent vide order dated 06.11.2007 made in C.M.P.No.336 of 2007)The First Appeal is filed U/Sec.96 of the C.P.Cagainst thejudgment and decree dated 25.08.1993 made in O.S.No.170 of 1988 onthe file of the Subordinate Judge, Thiruvannamalai.For Appellants : Mr.T.R.RajaramanFor Respondents : Mr.N.SriramJUDGMENTThis appeal is focussed as against the judgment and decree inO.S.No.170 of 1988 dated 25.08.1993 passed by the learned SubordinateJudge, Thiruvannamalai. For convenience sake, the parties arereferred to here under according to their litigative status beforethe trial Court. 2. The quintessence of the case of the plaintiff as stoodexposited from the plaint could be set out thus;The plaintiff and the defendant are brothers being the sons ofthe deceased Chinnasamy Pillai and Angammal. During the life time ofthe plaintiff's parents a partition was effected. However, at thattime, the jewels were left with the mother of the plaintiff with theunderstanding that after her death, the jewels were to be sharedequally between the plaintiff and the defendant. After suchpartition, the parents of the plaintiff and defendant were livingwith the defendant. The mother died on 08.02.1984. The father died on16.03.1988, whereupon, the defendant came into possession of jewels https://hcservices.ecourts.gov.in/hcservices/ as set out in the schedule of the plaint as well as in Ex.A1 whichwere earlier entrusted to the mother; even during the life time ofthe father, the plaintiff made a demand for partitioning the saidjewels. But the father responded by observing that the plaintiff anddefendant could share those jewels after his death. The father gaveone pair of pearl bangles weighing 0.7½ grams to the plaintiff andthe defendant. The plaintiff prepared a list of jewels to bepartitioned (Ex.A1). However, the defendant added to the list somemore items, which according to him were left out and the list soprepared were left with the plaintiff. After the death of the fatherof the plaintiff and the defendant, the request made by the plaintiffwas turned down by the defendant. Whereupon, Panchayat was convenedon 17.07.1988 consisting of S.Annamalai Pillai, N.Pandurangan,M.Chakkarai, G.Venkatesan, A.Ellapa Pillai, N.Shankar,V.Radhakrishanan and A.Panchaksharam and during the Panchayat theplaintiff and the defendant were present and the Panchayatdars andthe defendant accepted the list Ex.A1 as correct. But, the defendantdemanded 0.40 gms of gold jewels more than a share in view of hehaving maintained his parents for which, the plaintiff also agreed.In the panchayat the defendant was directed to produce 110 grams ofgold jewels and get it shared equally between the plaintiff and thedefendant and in the absence of it, the defendant was directed to paya sum of Rs.37,111/- to the plaintiff. Even though the defendantpromised to hand over the jewels to the extent of the share of theplaintiff, nonetheless he failed to do so. Hence the suit.3. Per contra, denying and refuting, impugning and challenging,the allegations/averments in the plaint, the defendant filed thewritten statement, the warp and woof of it would run thus;The jewels as found set out in the plaint of the schedule, areavailable with the plaintiff. Ex.A1 is not a true list but it is animaginary one. No panchayat as alleged in the plaint was conductedand he did not agree to produce any jewels much less than ones as inEx.A1 and share them with the plaintiff. As per the partition deedEx.B1, dated 30.06.1975 which emerged among the plaintiff, thedefendant and their parents, it was recited there that there were nomovable properties to be shared between the plaintiff and thedefendant. Accordingly, he prayed for the dismissal of the suit.4. The trial Court framed the relevant issues. During trial onthe side of the plaintiff, PW1 was examined along with PW2 to PW5 thepanchayatdars and Ex.A1 to Ex.A4 were marked. The defendants examinedas DW1 along with DW2 on his side and Ex.B1 to Ex.B7 were marked.Ultimately the trial Court decreed the suit for partition.Consequently, the preliminary decree was passed as prayed for by theplaintiff.5. Being aggrieved by and dissatisfied with the judgment anddecree of the trial Court, the defendant filed this appeal on the https://hcservices.ecourts.gov.in/hcservices/ various grounds, the quintessence of them would run thus; The judgment and decree of the trial Court is against law,weight of evidence and all probabilities of the case. Ignoring therecitals in the Ex.B1, the partition deed, the trial Court decreedthe suit. The trial Court erred in holding that the mother of theplaintiff and the defendant had her jewels till her death, whenabsolutely there were no evidence to that effect. Ex.A1 was wronglyrelied on by the trial Court. Ex.A1 which is alleged to have emergedanterior to Ex.B1 cannot have any enforceability after the emergenceof Ex.B1. Accordingly he prays for the dismissal of the suit.6. The points for consideration are as under;1) Whether the jewels as found in the plaintschedule as well as in Ex.A1 existed at any pointof time at all and if so whether the jewels are inthe possession of the defendant?2) Whether the plaintiff is entitled to claima share in these jewels? 3) Whether there is any infirmity in thejudgment and decree of the trial Court?7. Points 1 and 2 are taken together for discussion as they areinter-linked and inter-woven with each other.8. The learned counsel for the defendant animadverting upon thefinding of the trial Court based on Ex.A1 but after ignoring Ex.B1,would develop his arguments that the recital in Ex.B1 wouldunambiguously and incontrovertibly highlight the fact that theplaintiff himself admitted candidly and categorically that there wereno movable properties to be partitioned between the plaintiff and thedefendant; there is no iota or shred of evidence to demonstrate thatthe mother of the plaintiff and defendant, possessed the jewelsmentioned in the plaint till her death and that they were taken awayby the defendant, the mother was living away from the defendant andthat he had no opportunity of coming into possession of the jewels atall.9. Per contra, by way of torpedoing of the arguments of thelearned counsel for the appellant/defendant, the learned counsel forthe respondent/plaintiff would spotlight the available evidence tothe effect that PW2 to PW5 the Panchayatdars, who had no axe to grindin the matter, without any embellishment detailed and delineated thefacts to the effect that there emerged a Panchayat, during suchproceedings the defendant agreed to share the jewels as found set outin Ex.A1, with the plaintiff and the defendant's request for taking40 grams of jewels more than the plaintiff's share in view of thedefendant having maintained his parents also was acceded to Ex.A3 thereply notice given by the defendant would speak volumes that headmitted the existence of the jewels in his possession. https://hcservices.ecourts.gov.in/hcservices/

10. A perusal of the evidence, would demonstrate that thedefendant in one breath would contend that no Panchayat took place atall as alleged in the plaint; Whereas in another breath in hisdeposition he would admit that a Panchayat took place in connectionwith the land dispute relating to an extent of 5 cents which eruptedbetween the plaintiff and the defendant.11. It is therefore crystal clear that a Panchayat took place inconnection with the dispute between the plaintiff and the defendant.It is not the case of the defendant that PW2 to PW5 were notPanchayatdars at all. No doubt DW1 would raise his accusative fingeragainst the Panchayatdars as they were all close relative to theplaintiff. I am at a loss to understand as to how the defendant beingthe brother of the plaintiff could take such a plea. The relatives ofthe plaintiff would be the relatives of the defendant also. Thecumulative reading of the deposition of PW2 to PW5 would convey andexemplify that during the Panchayat the defendant without mincingwords admitted that he would share the jewels as found set out in theEx.A1 along with the plaintiff; moreover, the defendant's claim for40 grams of gold jewels more than the share of the plaintiff was alsoaccepted by the plaintiff and accordingly out of the 260 grams ofgold jewels, 40 grams of jewels were permitted to be taken by thedefendant exclusively and the remaining 220 grams of jewels wereagreed to be divided between the plaintiff and the defendant at therate of 110 grams each. The evidence also would clearly prove that onthe date of Panchayat itself, physical partition of the jewels couldnot take place because the defendant had to come forward with a pleathat the jewels were in the bank locker and that he would give later.12. The contention of the defendant is that Ex.A1 is aninadmissible piece of document as it does not bear the signature ofany one. No doubt if Ex.A1 is considered in isolation, without anyhesitation, the Court has to hold that it is nothing but a mere pieceof paper having no evidentiary value and it is not even worth thepaper on which it is written. But in this case, the position isentirely different. In Ex.A3, the reply notice, the defendant himselfcategorically averred thus;"At the time of the partition it was stated byyour client that certain jewels have been left withthe mother and a list was prepared. My clientstated that apart from the jewels included in thelist there were some other jewels also and he alsoshowed it in the list."(emphasis supplied)It is therefore clear that the defendant himself admitted theunsigned list in which he also added some more items. A perusal ofEx.A1 would fit into the description as given by the defendant in thehis reply notice. Moreover, the evidence of Panchayatdars would https://hcservices.ecourts.gov.in/hcservices/ clearly demonstrate that Ex.A1 was shown before the Panchayatdars andthe defendant, before them agreed to the contents of Ex.A1. Hence inthis factual matrix, Ex.A1 has evidentiary value of its own and thetrial Court cannot be faulted with for having placed reliance onEx.A1.13. Relying on Ex.B1, the registered partition deed dated30.06.1975, the learned counsel for the defendant would advance hisarguments that the recitals in it would unambiguously andunassailably spotlight that there were no movables to be partitioned.Ex.B1 emerged during the year 1975 whereas the mother of the partiesto the proceedings, died in the year 1984; consequent upon the deathof the mother alone partition relating to the jewels of themother would arise. Hence, Ex.B1 can never be taken as the one whichwould be an embargo as against the claim of the plaintiff for thejewels.14. The learned counsel for the defendant would raise a pointthat absolutely there is no certainty that the mother of the partiesat the time of her death possessed those jewels, even assuming thatsuch jewels were entrusted to her in and around the time of emergenceof Ex.B1. It is a trite proposition of law that preponderance ofprobabilities would govern the adjudication in civil cases. Thedefendant has come forward with prevaricative stands as highlightedsupra. He had put forth the plea that the parents of the parties werenot living with him at the time of the death of the mother. However,Ex.B2 and Ex.B3 the death certificates of the parents of the partieswould clearly evince and evidence that at the relevant time of theirdeaths, they were living at Door No.11, Valayalkara Street,Thiruvannamalai and the defendant clearly admitted that he residedonly in that address and the place of death was also the same. Afortiori, the defendant had the opportunity of coming into thepossession of the jewels of his mother. In the wake of the clinchingevidence, absolutely there in no necessity to interfere with thejudgment and decree of the lower Court. Accordingly, the judgment anddecree of the Court below is confirmed and the appeal is dismissed.However, in the circumstances of the case, the respective parties aredirected to bear their costs.Sd/-Deputy Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ jikrTo1. The Subordinate Judge, Thiruvannamalai, (with records)2. The Section Officer, VR Section, High Court, Madras.+ 1 CC To Mr.M.Sriram, Advocate SR NO.31752+ 1 CC To Mr.T.R.Rajaraman, Advocate SR NO.31730A.S.NO.242 OF 1994KSK(CO)SRA(12/07)