High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:2.4.2007CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIS.A.No.707 of 1995 A.S.Murugan... Appellant[Plaintiff]Versus1.Neelavathi2.Rajaram3.Suresh...Respondents[Defendants]Second Appeal filed under Section 100 of the Civil Procedure Codeagainst the Judgment and Decree of the learned Additional SubordinateJudge of Chengalpattu dated 24.01.1994 in A.S.No.49 of 1993 confirmingthe Judgment and Decree of the learned District Munsif of Maduranthakamdated 29.07.1993 in O.S.No.335 of 1992. For Appellant : Mr.V.Sanjay for V.Nicholas. For Respondents : T.V.KrishnamachariJ U D G M E N TThe short point of legal issue involved in this case is as towhether the will marked as Ex.A9 dated 04.08.1986 said to have beenexecuted by one Raji Gounder in favour of Dhanalakshmi, who is thevendor of the plaintiff is valid and the same has been proved andalternatively, if there are any defects in the will, can a lesser reliefbe granted in respect of some of the properties forming part of thewill, since in respect of few items of properties there has been arectification regarding Survey Numbers.2.The unsuccessful plaintiff in both the Courts below is theappellant herein. He stated to have purchased four items of suitproperties from one Dhanalakshmi under a sale deed dated 20.07.1992marked as Ex.A12. The four items of properties said to have beenpurchased by the plaintiff under the sale deed are all situated inAmayapattu Village, Maduranthakam Taluk as follows: 1. Wet Survey No.11/3 to the extent 0.32 cents together withwell 3 H.P.Pumpset and shed and electric service connection.2. Wet Survey No.13/8 to the extent of 0.19 cents https://hcservices.ecourts.gov.in/hcservices/

3. Wet Survey No.13/10 to the extent of 0.144. Dry Survey No.20/1 to the extent of 0.66, to the total extentof 1.31 acres as stated in the plaint, however stated as 1.35acres in the Ex.A12.3.The case of the plaintiff was that originally, the propertybelonged to Raji Gounder, who purchased the four items of propertiesunder various documents and enjoyed the same as his own. The firstdefendant is the wife of Raji Gounder, the second defendant is the sonand the third defendant is the son of the second defendant. During thelast days, the said Raji Gounder was living with one Dhanalakshmi, whois his mother's sister's daughter. Raji Gounder is stated to haveexecuted a will in favour of Dhanalakshmi on 04.08.1986 in respect offour items marked as Ex.A9. It was based on the said will, the saidDhanalakshmi has executed the sale deed in favour of the plaintiff asEx.A12. The suit was resisted by the defendants on the ground that theproperty was ancestral property and the said Raji Gounder had no rightto dispose of the entire properties. The defendant has filedO.S.No.38/88 for partition and the same is pending. Raji Gounder himselfhas filed a suit for injunction against the defendant in O.S.No.2/87 andthat was dismissed. Suppressing the pendency of the partition suit, thepresent suit is filed. On an analysis of the entire evidence, theTrial Court has come to a conclusion that the will stated to have beenexecuted by Raji Gounder has not been properly proved and therefore theWill is not valid and consequently the purchase stated to have been madeby the plaintiff from Dhanalakshmi, which was itself based on thedisposition given under the will was also held to be not valid. 4.It was as against the said Judgment of the Trial Court, theplaintiff has filed first appeal. The First Appellate Court also onanalysis of the entire evidence and having concurred with the TrialCourt that the Will has not been proved dismissed the appeal, againstwhich, the present second appeal is filed by the plaintiff. 5.While admitting the second appeal the following substantialquestion of law was framed for consideration: "When the attestors of the Will executed by Raji Gounder wereno more and that the plaintiff examined the identifying witnessand the scribe of the Will which is a registered one and thusproved the will in a manner known to law whether the courts beloware correct in holding the issue against the plaintiff."6.While it is the case of the plaintiff that he seeks thedeclaration in respect of the four items of the properties based on thesale deed marked as Ex.A12 dated 20.07.1992 stated to have been executedby Dhanalakshmi in his favour, Dhanalakshmi herself got right in respectof these properties under a Will stated to have been executed by RajiGounder in her favour dated 04.08.1986 marked as Ex.A9. It is based onthe Will, Dhanalskhmi claims title and consequently it is theplaintiff's responsibility to prove the genuineness of the Will Ex.A9.On fact, it is seen and as also admitted by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ appellant Mr.N.E.A.Dinesh that the Will contained four items ofproperties. In respect of items No.1 and 2, the Will itself contains awrong Survey Number and it was based on the said Will, Dhanalakshmi hasexecuted Ex.A12 sale deed in favour of the plaintiff. It was only aftersome years, the mistake was realised and it is an admitted case of theplaintiff that his vendor Dhanalakshmi has executed a rectification deedin his favour on 05.08.1992 marked as Ex.A17. But it remains the facton a reference to Ex.A12 shows that in respect of Item No.1 of the saidproperties, the original sale deed Ex.A12 has mentioned the SurveyNumber as 8/11 to the extent of 0.36 cents along with 3 Hp Electricmotor pumpset which was modified as Survey No.11/3 to the extent of 0.32cents with 3 HP Electric Motor. Likewise, in respect of Item No.2 ofthe property mentioned in Ex.A12 which was stated as Nanja SurveyNo.13/8 measured as 0.19 cents was modified as Survey No.10/8 to theextent of 0.19 cents. However, there is no change in the third andfourth items. It remains the fact that while Ex.A12 has been executedby Dhanalakshmi based on Ex.A9 Will of Raji Gounder dated 04.08.1986, areference to the Will marked as Ex.A9 shows that it contains the sameSurvey Number in respect of items No.1 and 2 as it is seen under Ex.A12sale deed. In view of the above said factual position, it is clear thatby rectification deed, dated 05.08.1982 marked as Ex.A17 given byDhanalakshmi in favour of the plaintiff, the plaintiff cannot get anytitle atleast in respect of Items No.1 and 2 of the properties sincethere is a difference between the document relied upon by the plaintifffor his title in respect of those items namely Ex.A12 and Ex.A17 and theoriginal Will which is basis for such document. It is also true that inrespect of Items No.3 and 4 there is no change. Therefore, before goinginto the aspect as to whether Raji Gounder has got any competency toexecute the Will or even assuming that the Will has been executed, thesame has been proved in the manner known to law, the issue which has tobe decided is as to whether the documents relied upon by the plaintiffnamely Ex.A12 and Ex.A17 can give any title to the plaintiff at all. Itis in view of this situation, Mr.N.E.A.Dinesh, learned counsel appearingfor the appellant would submit that the Court has got power to givelesser relief. 7.To substantiate his contention, he would rely upon theJudgment of this Court rendered in Kesavalu Naidu V. Doraiswami Naidu(died) and Others (1958 1 MLJ 189). That was a case wherein, a suit fordeclaration of joint ownership of property set apart for and used as apassage while, there was a finding that claim to ownership has not beenproved. The question arose as to whether a restricted relief of user ofpassage can be granted. It was in those circumstances, this Court hasheld granting lesser relief. While the plaintiff claims more than whathe is entitled to, the Court will not dismiss the suit but give therelief to which he is entitled to. This Court has also held that it isthe duty of the Court to mould the relief to be granted to the partiesaccording to the facts proved. The relevant portion of the Judgment areas follows:"c. Where the plaintiff claims more than what he is entitledto, the Court will not dismiss the suit but give the plaintiffonly such relief as he is entitled to. Pitambar v. Ram Joy; https://hcservices.ecourts.gov.in/hcservices/ Lakshman v. Hari; Venkataramana v. Verabalu; Khamta Mandalassiv. Hem Kumari.The fact that plaintiff asked for relief larger than the factsasserted by him would warrant is no ground for refusing himthe lesser relief to which on the facts found he is entitled:Bhihu v. Puttu. In fact as Odgers put it, where a party cannotbe exact, it is wiser to claim too much rather than too littleas a Judge does not give more than that which the plaintiffrequires – Judex non Reddi injuriam subi datam punire.d) But where the plaintiff claims less than what he is entitledto, the Court will not grant him any relief he has notspecifically claimed unless the plaint is amended before thejudgment: Sooriah Row v. Cotaghery, Pereival V. Collector ofChittagong. But the Court should not refuse to grant a reliefnot specifically claimed in the plaint, if such relief isobviously required by the nature of the case and is notinconsistent with the relief specifically claimed and raised bythe pleadings: Gulabgir v. Nathmal. Too much insistence shouldnot be laid on the technicalities of pleadings. It is the dutyof the Court to mould the relief to be granted to the partiesaccording to the facts proved which, however, should not beinconsistent with the pleadings, Mehar Chand v. Milkhi Ram."8.While absolutely there is no quarrel about the proposition aslaid by this Court in the said Judgment, I do not think that fact of thepresent case can be taken as an instance for the purpose of grantingrelief to the plaintiff. The reliance placed on by the learned counselfor the applicant on the Division Bench of this Court rendered inPentapati Venkataramana and Others V. Pentapati Varahalu and Others(A.I.R.1940 Madras 308) is also not applicable to the facts of thepresent case. That was again a case where in respect of dissolution ofpartnership when the plaintiff has claimed a wider relief which cannotbe granted, but at the same time, it was held that it will not deprivehim to restrict his right to a limited relief. 9.The one other Judgement of the Honourable Supreme Court citedby the learned counsel, in my considered view has no application to thefacts of the present case. That was the case rendered by the SupremeCourt in Kedar Lal Seal and another Vs. Hari Lal Seal (A.I.R.(39) 1952SC 47). That was a case relating to suit for contribution under theTransfer of Property Act in which it was held that the Courts will beslow in throwing out a claim on a mere technicality, while decidingabout Order 6 Rule 2 of Civil Procedure Code, regarding method ofcomputation. The Honourable Supreme Court has held that it is a matterof law and it is for the Judge to apply the law to the facts and givethe plaintiff such relief as appropriate to the case. The operativeportions of the Judgement reads as follows:"The learned counsel for the plaintiff-respondent urged that thedefendants are shut out from relying on S.82 because that wasnot their case and the question was never raised by them in theHigh court. Such reference as there is to the section was with https://hcservices.ecourts.gov.in/hcservices/ reference to an argument urged on behalf of the plaintiff. I amnot impressed with this objection. On the facts set out by theplaintiff it is evident that he is entitled to contribution.The method of computation is a matter of law and it is for theJudges to apply the law to the facts stated and give theplaintiff such relief as is appropriate to the case."10. Again in the context of this Suit, one has to remember thatthe very basis of Dhanalakshmi to convey title to the plaintiff underEx.A12 as rectified under Ex.A17 was the Will stated to have beenexecuted by Raji Gounder on 04.08.1986 marked as Ex.A9. When the basicWill itself is defective in its nature, since it contains differentSurvey Numbers and different extent of lands, I do not think that thesaid defect is curable in nature or any relief can be given to a partyin respect of other properties of the Will, since the basis of the Willis in stake.11. Therefore, the contention raised on behalf of the appellantthat a limited relief can be given to the plaintiff in respect of ItemNos.3 and 4 under Ex.A9 will is not sustainable.12. Now coming to the validity of the Will, it is true that onappreciation of the Judgment of both the Courts below, it is made veryclear that factually the Courts below have come to the conclusion thatthe Will has not been proved on the appreciation of witness includingthe attesting witness and scribe and in such circumstances at theoutset, I have no hesitation to hold that this is only a factualsituation and therefore the question of this Court interfering underSection 100 of the Civil Procedure Code does not arise. 13. The contention raised by the learned counsel for theappellant that the validity of the will executed by Raji Gounder hasnever been questioned cannot be accepted for the simple reason that itis for the plaintiff who comes to the Court on the basis of a document,which in its turn totally depends upon the Will executed by RajiGounder, to prove that the Will was properly executed and it was a validWill. It is the case of the defendant that the suit properties arejoint family properties and infact the defendants have filed suit forpartition as seen in O.S.No.38/1998 under Ex.B8. Under suchcircumstances, the onus of proof is certainly heavy on the plaintiff toprove the genuineness of the will Ex.A9. A reference to the evidenceof the attesting witness P.W.1 and P.W.5 scribe is discussed by both theCourts below would show that those witnesses are not worthy witnessesand they were in fact found to be either document writer or theidentifying witness P.W.4 as a person always loitering in the Registeroffice as rightly contended by the learned counsel for the respondent.It is for the plaintiff to prove the genuineness of the Will and hecannot take advantage of the defects or weakness on the other side aslaid down by the Division bench of this Court in P.Panneerselvan Vs.A.Baylis S/o V.Anbumani (2005 5 CTC Pg 17). As held by this Courtwhile referring to Order 39 Rule 1 of Civil Procedure Code in S.Ramesh https://hcservices.ecourts.gov.in/hcservices/ Babu Vs. R.Bhaskar and another (2003 (1) CTC 345), the burden is on theplaintiff to prove and cannot take advantage of the weakness in defenceand the relevant portion of which reads as follows:" 15.The learned counsel for the revision petitioner contendsthat the lease deed has not been produced by the firstdefendant and as such adverse inference can be drawn againsthim. The burden is only upon the petitioner to prove his caseand he cannot take advantage of the weakness in defence. Infact, the first defendant already filed O.S.No.2494/99 forpermanent injunction relating to the entire property and hecould have filed the lease deed in that suit. The learnedcounsel for the first defendant also relied on Chellathurai andfive others v. Perumal Nadar, 1998 (3) M.L.J 567 that in a suitfor injunction, it is the duty of the plaintiff to prove thathe continued to be in possession on the date of the suit. Onlywhen evidence on both sides are let in title to the propertywill have some relevance, Merely because the defendant hasfailed to prove his case, it does not follow that the plaintiffis in possession."14. The mere fact that Ex.A9 Will is a registered document doesnot stand in a better footing. In view of the factual finding about theveracity of the attesting witness and also the scribe examined as P.W.4and P.W.5 found by both the Courts below, I do not think that it is fitcase where any substantial question of law arises for consideration.15. In view of the same, the second appeal fails and the same isdismissed. There will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. Additional Subordinate Judge, Chengalpattu.2. The District Munsit, Maduranthakam.3. The Section Officer, V.R.Section, High Court, Chennai.+ 1 CC To Mr. V.Nicholas, Advocate SR NO.20850+ 2 CCs To Mr. T.V.Krishnamachari, Advocate SR NO.20921, 20739S.A.No.707 of 1995jrg[co]Gp/19.4