S.Meenakshi Sundaram v. Valliammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:13.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1665 of 2008andM.P.No.1 of 2008S.Meenakshi Sundaram... Appellant/Plaintiffvs.Valliammal... Respondent/Defendant This second appeal is filed against the judgement and decreedated 11.9.2008 passed in A.S.No.41 of 2008 by the SubCourt,Rasipuram, Namakkal District, confirming the judgement anddecree dated 1.10.2004 passed in O.S.No.174 of 1998 by the DistrictMunsif, Rasipuram, Namakkal District.For Appellant : No appearanceFor Respondent : No appearanceJUDGMENTThis second appeal is focussed by the original plaintiff,animadverting upon the judgement and decree dated dated 11.9.2008passed in A.S.No.41 of 2008 by the Sub Court,Rasipuram, NamakkalDistrict, confirming the judgement and decree dated 1.10.2004 passedby the District Munsif, Rasipuram, Namakkal District, in O.S.No.174of 1998, so as to get declared the plaintiff's title over the suitproperties and to restrain the defendant from interfering with thepeaceful possession and enjoyment of the suit properties by theplaintiff. For convenience sake, the parties are referred tohereunder according to their litigative status before the trial Court.2. The plaintiff filed the suit for declaration of title and forinjunction in respect of his alleged half share in the suit propertybased on his plea that he purchased the property as per the saledeed dated 08.02.1990 executed by one Saroja, in his favour.3. Per contra, denying and refuting, remonstrating and gainsayingthe claim of the plaintiff, D1 filed the counter that the suit of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff was totally untenable, as it was based on fabricateddocuments. 4. During trial, the plaintiff examined himself as P.W.1., apartfrom examining one Periyaswamy as P.W.2 and Exs.A1 to A8 were marked.On the defendant's side, the defendant examined herself as D.W.1 andEx.B1 was marked.5. Ultimately the trial Court dismissed the suit, as againstwhich first appeal was filed by the plaintiff, for nothing but to bedismissed. Being disconcerted and aggrieved by the judgments of boththe Courts below, this Second Appeal is focussed by the plaintiff onvarious grounds and also by suggesting the proposed followingsubstantial questions of law:"1.Whether the learned Subordinate Judge was correcthin dismissing the appeal filed by the appellant withoutfollowing the mandatory provisions of law as per O.41 R.31of C.P.C.as held in the judgment reported in 2008(1)C.T.C.778.2. Whether the registration is necessary to prove aWill.3. Whether the learned District Munsif was correct inframing an issue that was not pleaded by the respondentwith regard to the genuineness of the Will dated 25.1.1982?4.Whether the Court could substitutes its own theoryto grant a relief with out any pleading by the respondent?6. Despite printing the names concerned, none appeared.7. A bare poring over and perusal of the typed set of papersincluding the certified copies of the judgments of both the Courtsbelow would display and demonstrate that the plaintiff sought to getdeclared his alleged title to the suit properties based on the saledeed-Ex.A2 dated 8.2.1990, executed by one Saroja in favour of theplaintiff on the strength of Ex.A1-an unregistered Will-dated25.1.1982, alleged to have been executed by one Pitchamuthu in favourof Saroja.8. The lower Court correctly observed that absolutely there is noreference to the said Will-Ex.A1 in the plaint. Normally whiledrafting the plaint, there should be reference to the antecedenttitle deed to the sale deed, based on which the suit is laid. Eventhough the present suit was filed based on Ex.-A2-the sale deed dated8.2.1990, its antecedent deed namely, Ex.A1 was not referred to inthe plaint and as such, its absence in the pleadings was correctlycommented upon by the lower Court. https://hcservices.ecourts.gov.in/hcservices/

9. In the memorandum of second appeal, the plaintiff/appellanttries to raise his accusative finger as against the lower Court forhaving framed the issue relating to Ex.A1-the Will, forgetting for amoment that the plaintiff himself, as per law, ought to have averredin the plaint about the Will, in addition to praying suo motu thelower Court to frame an issue relating to the validity of the Will.However, the lower Court au fait with law appropriately andcorrectly, in accordance with Order 14 Rules 3 and 4 of C.P.C.framed, in the facts and circumstances of the case, the issuerelating to the validity of the Will because that alone, according tothe plaintiff was the bedrock for filing the suit, even though,apparently he might rely upon the sale deed-Ex.A2. At this junctureI would like to extract here under Order 14 Rules 3 and 4 of C.P.C."3. Materials from which issues may be framed- TheCourt may frame the issues from all or any of the followingmaterials:-(a) allegations made on oath by the parties, or by anypersons present on their behalf, or made by thekl pleadersof such parties;(b) allegations made in the pleadings or in answersto interrogatories delivered in the suit;(c) the contents of documents produced by eitherparty.4. Court may examine witnesses or documents beforeframing issues- Where the Court is of opinion that theissues cannot be correctly framed without the examinationof some person not before the Court or without theinspection of some document in the suit, it may adjourn theframing of the issues to a day not later than seven daysand may (subject to any law for the time being in force)compel the attendance of any person or the production ofany document by the person in whose possession or power itis, by summons or other process."(emphasis supplied)10. A bare perusal of those Rules 3 and 4 and also the otherRules under Order XIV of C.P.C. would unambiguously and unequivocallyhighlight and spotlight, exemplify and evince that the Court, in thefacts and circumstances of a particular case, has got the right toframe necessary issues, which are relevant for the just decision ofthe case, de hors what the parties have stated and averred in theplaint and written statement. 11. Here Ex.A1 is the Will, which was produced by the plaintiffhimself and I am at a loss to understand as to how the plaintiff https://hcservices.ecourts.gov.in/hcservices/ could challenge and impugne the very framing of the issue relatingto the Will. As such, the very approach of the plaintiff in filingthe second appeal is fraught with misconception and misgiving inaddition to misunderstanding of the law and fact involved in thiscase. As such, the substantial question of law (iii) as suggestedabove by the appellant cannot be countenanced and it is totallyuntenable.12. The lower Court elaborately dealt with the issue relating toWill and rendered its finding that the plaintiff miserably failed toprove the genuineness of Ex.A1-the Will. The suggested substantialquestion of law No.(ii) is once again based on misunderstanding ofthe purport of the judgment of the lower Court, which did notbelieve the Will solely because it was an unregistered Will, but onthe other hand, it dealt with the evidence of P.Ws.1 and 2 andarrived at the conclusion that the very execution and emergence ofthe Will itself, was fraught with falsity and it was an unbelievabledocument. The fact remains that the plaintiff came forward with thecase as though his vendor Saroja's husband's name as well as herfather's name were one and the same, namely, Pitchamuthu. But thetrial Court correctly pointed out that the name Saroja, as found inEx.A1, refers to a lady by name Saroja, wife of Muthugounder, in viewof the fact that one of the attesting witnesses to Ex.A1, namely,P.W.2 categorically stated that he is the son of Muthugounder andbrother of the beneficiary Saroja under Ex.A1 and in such a case, theplaintiff's vendor Saroja's father cannot be Pitchamuthu. As such,the evidence of P.W.2 goes against the evidence of P.W.1. 13. The lower Court also extracted the relevant portions of theevidence of P.W.1 as well as P.W.2 and correctly highlighted thecontradictions and thereby arrived at the conclusion that Ex.A1 is anunbelievable document.14. The plaintiff forgetting for the moment that the burden ofproof is on him to prove the Will strictly in accordance with Section68 of the Indian Evidence Act, had failed to prove the due executionof the Will and the concerned law point has been correctly applied bythe lower Court and accordingly decided the lis.15. Both the Courts below also correctly understood the realcontroversy and gave its findings that the suit properties originallybelonged to Pitchamuthu-the husband of the defendant and he did notexecute any Will in favour of the plaintiff's alleged vendor-Sarojaand that the plaintiff had not produced any evidence to prove thatthe defendant's husband Pitchamuthu executed such Will in favour ofhis alleged vendor Saroja. Put simply, the evidence on plaintiff'sside is nothing but a mishmash of artificial and unbelievableversions.16. The said Saroja-the vendor of the plaintiff was not examined https://hcservices.ecourts.gov.in/hcservices/ for reasons best known to the plaintiff. Trite, the proposition oflaw is that the plaintiff has to prove his case, but surprisingly andshockingly, the plaintiff in his case had not chosen to prove hiscase, but tried to fob off the burden on the defendant artificiallyand in untenable manner, quite antithetical to the well establishedprinciple of law, governing 'burden of proof'. There is absolutely noiota or shard, shred or miniscule extent of evidence to highlightthat the plaintiff's vendor-Saroja acquired right over the suitproperty.17. En passant, I would like to point out that the verydescription of the suit property in the plaint and the averments inthe plaint are far from satisfactory. There is nothing to indicateand convey as to what was the basis for claiming half share in theundivided joint properties described in the schedule of the plaint.It is also not known as to how injunction consequently could beprayed for such undivided property, which was not divided by metesand bounds into two halves. How there could be a suit for baredeclaration without a prayer for partition? There is also noindication in the plaint as in which half portion of the suit largerextent of land, the plaintiff is in possession and enjoyment, so asto get injunction from the Court.18. Curiously, in paragraph 4 of the plaint, the plaintiff setout thus:@tHf;F brhj;jpy; gpujpthjpf;F vt;tpj ghj;jpankh mDgtnkh my;yJvt;tpj chpiknah vf;fhyj;jpYk; ,Ue;jjpy;iy/ gpujpthjp tHf;F brhj;jpy; Ehjdghj;jpak; bfhz;lhLtjhy; tHf;F brhj;ij bghWj;J tsk;g[if ghpfhuk;nfhhptHf;F jhf;fy; bra;a ntz;oa[s;sJ/ nkw;go hpbtd;a{ upf;fhh;Lfspy; fle;j 3/9/98njjpapy; thjp rpl;lh ml';fYf;F tpz;zg;gpj;jnghJ mjpy; gpujpthjp bgah; ,Ug;gjhy; thjpapd; tHf;F brhj;jpy; cs;s ghj;jpaj;jpw;F Fe;jfk; Vw;gl;Ls;sJ/nkYk;. thjp tHf;F brhj;jpy; gpujpthjpf;F ghjp ghfk;ju ntz;Lk; vd;W gpujpthjpthjpia nfl;lnghJk;. fle;j xU khj fhy mstpy; thjpapd; mDgtj;ijgpujpthjp ,il";ry; bra;a Kad;w fhyj;jpYk;. thjp gpujpthjpapd; nghpy; tsk;g[ifkw;Wk; epue;ju cWj;Jf;fl;lis ghpfhuj;jpw;F tHf;F jhf;fy; bra;a ntz;oaJmtrpakhdjha; cs;sJ/ ,y;yhtpoy; thjpapd; mDgtk; kw;Wk; ghj;jpak;bgUj;j ,il";rYf;F cs;shfptpLk;/@19. The above excerpt from the plaint would assumingly convey theidea as though the plaintiff sought for half share in the suitproperty on the ground that the chitta stands in the name of thedefendant. No owner of a property would demand for half share in thesuit property because erroneously the defendant's name is in thechitta. It is a trite proposition of law that preponderance ofprobabilities would govern the adjudication in civil cases. The https://hcservices.ecourts.gov.in/hcservices/ trial Court, after considering the pro et contra, correctly andappositely arrived at the conclusion that the plaintiff's case is afalse one. Accordingly, the suggested substantial question of lawNo.(ii) does not arise at all.20. The suggested substantial question of law No.(i) would setforth as though the lower Court violated Order 41 Rule 31 of C.P.C.,which is relating to writing of judgement by the first appellateCourt. A plain reading of the judgeent of the first appellate Courtin no way would show that it violated Order 41 Rule 31 of C.P.C., asthe lower Court narrated the facts and also recorded the point forconsideration and thereafter rendered its judgment applying its mindon the case before it. Hence, I could see no force in the suggestedsubstantial question of law No.(i) and it does not arise a all.21. There is nothing to indicate as suggested under the proposedsubstantial question of law that the Courts below inducted their owntheory in deciding the case and such a remark by the appellant is anunkindest act levelled as against the lower Courts. Both the Courtsbelow au courant with facts and applying the correct proposition oflaw highlighted as to how the plaintiff's case is a false one,warranting no interference with the judgements of the Courts below bythis Court.22. In the result, the second appeal is dismissed confirming thejudgement and decree of the court below. No costs. Consequently,connected miscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Subordinate Court,Rasipuram, Namakkal District.2. The District Munsif, Rasipuram, Namakkal District.1 CC To Mr.P.Valliappan, Advocate, SR NO.7784 S.A.No.1665 of 2008vsv(co)pmk/24.3.2009.