Chinnammal2.Kumarasamy v. Valliammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 10.02.2010CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.383 of 20031.Chinnammal2.Kumarasamy .. Appellants/Plaintiffs 2 & 3 Vs 1.Valliammal3.The state of Tamil Nadu, Rep. By District Collector, Perambur Town and Munsif.3.The Tahsildar, Talk Office, Veppanthattai, Perambalur District & Munsif. .. Respondents/3rd Defendant and Defendants 1 & 2 SECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 30.04.2002 made in A.S.No.80 of2001 on the file of the Principal District Judge, Perambalur inreversing the Judgment and Decree dated 27.06.2000 passed inO.S.No.12 of 1993 on the file of the District Munsif Court,Perambalur For Appellant :Mr.R.SubramaniamFor Respondent : Mr.V.Udayakumar– for R1MR.R.Muthaian, G.A. – for R2 & R3J U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.80 of 2001 on the file of Principal District Court, https://hcservices.ecourts.gov.in/hcservices/ Perambalur reversing the Judgment and Decree in O.S.No.12 of 1993on the file of District Munsif Court, Perambalur. 2. The plaintiffs 2 and 3 in the suit are the appellants inthe above second appeal. The third defendant is the first respondentand the defendants 1 and 2 are the respondents 2 and 3 in theabove second appeal.3. The plaintiffs filed the suit in O.S.No.12 of 1993 onthe file of District Munsif Court, Perambalur for declaration oftitle and mandatory injunction against the defendants 1 and 2 totransfer the pattas of the suit properties in the name of 2nd and3rd plaintiffs. 4. The brief case of the plaintiffs in the suit are asfollows:- (i) According to the plaintiffs, the suit properties belong tothem. Under the sale deed dated 4.6.1966, the first plaintiffpurchased the first item of the suit property from one Namanan sonof Namanan. Since the date of purchase, the first plaintiff is inpossession and enjoyment of the first item of the suit property. (ii) According to the plaintiffs, the first plaintiffpurchased the second item of the suit property from one Perumal sonof Undukatti Raman on 12.9.1966. Since the date of purchase, thefirst plaintiff is in possession and enjoyment of the second itemalso. The patta for these properties were transferred in the name ofthe first plaintiff. From the date of purchase, the plaintiffs arein possession and enjoyment of the suit properties. Subsequently,the plaintiffs learnt that the patta for the suit properties weretransferred in favour of the first defendant without any notice tothe plaintiffs. (iii) According to the plaintiffs, the third defendant norher vendors had any title or interest over the suit properties andshe is not in possession and enjoyment of the same. The thirddefendant alleges that she purchased the suit properties from oneNamanan son of Nallan in respect of first item of the suit propertyand in respect of the second item of the suit property, she allegesthat she purchased the said property from one Perumal son of Ramasamyin the year 1987. The alleged sale deeds are not true and valid inlaw. The first plaintiff has taken several steps to get the pattastransferred in his name. But, there is no response from thedefendants 1 and 2. The third defendant colluding with the revenueofficials got pattas transferred in her name without notice to theplaintiffs. Therefore the plaintiffs filed the suit. 5. The brief case of the defendants 1 and 2 are asfollows: https://hcservices.ecourts.gov.in/hcservices/ (i) According to the defendants 1 and 2, item No.1 ofthe suit property was originally a Government Poramboke land and itwas assigned in favour of one Namanan son of Namanan on 18.7.1962.Violating the assignment conditions, the said Namanan sold theproperties to the first plaintiff on 4.6.1966. Therefore, theassignment automatically got cancelled. The purchase by the firstplaintiff in respect of first item of the property is not valid andgrant of patta transfer in respect of item No.2 of the suit propertywill be decided after enquiry. Therefore, defendants 1 and 2prayed for dismissal of the suit.6. The brief case of the third defendant is as follows:(i) According to the third defendant, sale deeds dated4.6.1966 and 12.9.1966 are not true. The same cannot convey anytitle, interest or possession of the plaintiffs in respect of thesuit properties. One of the vendors of the plaintiffs namely,Namanan seems to have got the first item of the suit property by wayof assignment in the year 1962. As per the conditions of the saidassignment, the alleged sale in favour of the first plaintiff by thesaid Namanan in respect of item No.1 of the suit property is invalid.(ii) According to the third defendant, he is a bonafidepurchaser in respect of item No.2 of the suit property havingpurchased the same from one Perumal son of Ramasamy by means ofregistered sale deed dated 23.7.1987. From the date of the saidpurchase, the third defendant has been in exclusive possession andenjoyment of the property. The Will dated 18.8.1991 produced bythe plaintiffs 2 and 3 are not true and valid. The third defendantdenied the execution, attestation and due registration of the Will.The suit is bad for non-joinder of necessary parties namely, thealleged vendors of the plaintiffs. Therefore, he prayed fordismissal of the suit.7. In the reply statement, the first plaintiff has statedthat the alleged assignment dated 18.7.1962 in favour of Namananis false. No document whatsoever is filed to prove the defendants'version. There was no cancellation proceedings on the allegedassignment dated 18.7.1962. The third defendant is not residing inthe suit village nor she is in possession and enjoyment of the suitproperties. No enquiry for the issuance of patta was conducted by thesecond defendant. The plaintiff's vendor and later the firstplaintiff had been in exclusive possession of the suit propertiesfor the statutory period.8. Before the trial court, on the side theplaintiffs, five witnesses were examined and 40 documents, Ex.A-1 to Ex.A-40 were marked and on the side of the defendants, two https://hcservices.ecourts.gov.in/hcservices/ witnesses were examined and 15 documents, Ex.B-1 to Ex.B-15 weremarked.9. The trial court after taking into consideration, the oraland documentary evidences of both sides, decreed the suit as prayedfor. 10. Aggrieved over the judgment and decree of the trialcourt, the third defendant preferred appeal in A.S.No.80 of 2001on the file of Principal District Court, Perambalur and the lowerappellate court reversed the judgment and decree of the trial courtand allowed the appeal. 11. Aggrieved over the judgment and decree of the lowerappellate court, the plaintiffs 2 and 3 have preferred the abovesecond appeal. 12. Heard Mr.R.Subramaniam, learned counsel appearing forthe appellants, Mr.V.Udayakumar, learned counsel for the firstrespondent and Mr.R.Muthaian, learned Government Advocate for therespondents 2 and 3.13. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:- "a. Whether the lower appellate court canreverse the judgment of the trial court withoutassigning any reason for not agreeing the judgment anddecree of the trial court?b. Whether in lower appellate court is right inholding that the joint Will comes into force only onthe death of both the testators?c. Whether the oral evidence can prevail, insteadof the documentary evidence?" 14. Learned counsel for the appellants contended that ajoint Will comes into effect after the death of any one of thetestators; that the lower appellate court as a final court of fact isexpected to give its reasons for not agreeing with the findings ofthe trial court, but, the lower appellate court failed to give itsreasons for not agreeing with the findings of the trial court; thatthe the lower appellate court erred in reversing the entire judgmentof the trial court in the absence of any appeal by respondents 2 and3; that the lower appellate court erred in going into the question ofvalidity of Exs. A-1 when the same was not denied by therespondents; that the lower appellate court was not justified inconsidering the oral evidence of P.W.2, which runs counter to therecitals in Ex.A-1 registered document. https://hcservices.ecourts.gov.in/hcservices/

15. Learned counsel appearing for the appellants, in supportof his contentions, relied upon the following judgments:(i) AIR 1971 Mysore 143 (Leo Sequiera v. Magdalene SeqieraBai and others), wherein it is held that joint Will becomesoperative immediately after death of any one testator so far as hisproperties are concerned and the operation is not postponed till thedeath of all.(ii) 2001(1) Supreme 642(Santhosh Hazari v. PurushottamTiward (dead) by LRs), wherein, the Apex Court held that whilereversing finding of fact, the appellate court must come into closequarters with the reasoning assigned by the trial court and thenassign its own reasons for arriving at a different finding.(iii) 2008 (1) MLJ 810 (Govindaraja Naidu and others v.Meenatchi Sundaram and others), wherein this court held that whenthe courts have ignored the material evidence or acted on noevidence or drawn wrong interference from proved facts by applyingthe law erroneously or the courts have wrongly cast the burden ofproof, the High court can interfere in the second appeal.16. Countering the submission made by the learned counselfor the appellant, leaned counsel for the first respondent submittedthat the vendor of the first plaintiff was not having title to thefirst item of the suit property, since the property was assigned bythe Government to him in the year 1962; that the Will made by thevendor of the first plaintiff is in violation of the assignmentconditions; that the first respondent purchased the second item ofthe suit property from one Perumal son of Ramasamy by a registereddeed of sale dated 23.7.1987; and that the alleged Ex.A-38 sale deeddated 18.8.1991 is not true and valid one. Therefore, prayed fordismissal of the appeal. 17. Learned Government Advocate appearing for therespondents 2 and 3 submitted that since the first item of the suitproperty was assigned to the first plaintiff in the year 1962, thevendor of the first plaintiff had no title to sell the property tothe first plaintiff.18. On a careful consideration of the materials available onrecord and the submissions made by the respective counsels, itcould be seen that the appellants are the wife and son of deceasedSellappa Gounder, who is the first plaintiff in the suit. UnderEx.A-1 sale deed dated 4.6.1966, the first plaintiff purchased thefirst item of the property from one Namanan son of Namanan. By Ex.A- https://hcservices.ecourts.gov.in/hcservices/ 2 sale deed dated 12.9.1966, the first plaintiff purchased the seconditem of the suit property from one Perumal son of Undukatti Raman.According to the first respondent, she purchased the first item ofthe suit property on 16.7.1987 from one Namanan and she purchasedthe second item of the suit property from one Perumal on 23.7.1987under Ex.B-1 sale deed. 19. Though the first respondent pleaded that she purchasedthe first item of the suit property on 16.7.1987 from one Namanan,she did not produce the sale deed to prove her case. The purchaseof land made by the first plaintiff under Exs. A-1 and A-2 were inthe year 1966. The first respondent/third defendant failed to provethat the Exs. A-1 and A-2 documents are fabricated documents. Fromthe Exs. A-6 to A-24 and Exs. A-22 to A-29, it could be seen that thetax receipts in respect of suit properties stood in the name of thefirst plaintiff. These documents will prove that the first plaintiffis in possession and enjoyment of the suit properties for severalyears. Though the defendants have stated that the first item ofthe suit was assigned in favour of the vendor of the firstplaintiff, they have not produced any document to prove the same.20. In the reply statement filed by the first plaintiff, hehas specifically denied the alleged assignment in the year 1962.While so, the respondents 2 and 3 ought to have produced a copy ofthe assignment deed to prove their case. But they failed to produceany document to show that there was assignment in the year 1962 infavour of Namanan. In the absence of any such document, the standtaken by the respondents have to be rejected. As already stated, thefirst respondent/third defendant failed to produce the alleged saledeed dated 16.7.1987, in respect of the first item of the suitproperty. There is nothing on record to prove that the first item ofthe suit property belongs to the first respondent. 21. So far as the second item of the suit property isconcerned, the first respondent/third defendant marked Ex.B-1 saledeed dated 23.7.1987. Under Ex.B-1 sale deed, she purchased thesecond item of the suit property from one Perumal son of Ramasamyunder Ex.B-7 sale deed. The first plaintiff purchased the seconditem of the suit property from Perumal son of Undukatti Raman underEx.A2 sale deed dated 12.9.1966. Ex.A-3 is the patta pass bookstanding in the name of Perumal son of Undukatti Raman. The firstrespondent failed to produce any document or let in any evidence toshow that Perumal son of Ramasamy was the owner of the second item ofthe suit property. On the contrary, Ex.A-3 patta pass book standingin the name of Perumal son of Undukatti Raman supports the case ofthe appellant. Ex.A-2 sale deed is much prior to Ex.B-1 sale deed.The husband of the first respondent, who was examined as D.W.1 has https://hcservices.ecourts.gov.in/hcservices/ also admitted that there was some misrepresentation in execution ofthe sale deed in favour of the first respondent. The D.W.1 alsoadmitted that in respect of the second item of the suit property, thename of Perumal son of Undukatti Raman has been mentioned in therevenue records. From the evidence of D.W.1, it could be seen thatone Namanan son of Nallan and Perumal son of Ramasamy, were notthe owners of the suit properties. Therefore, the case of the firstrespondent/third defendant with regard to the purchase in respect ofthe suit properties cannot be believed. The vendor of the firstplaintiff in respect of the first item of the suit property wasexamined as P.W.2. His evidence cannot be looked into in view ofsection 92 of the Indian Evidence Act. He deposed against therecitals found in Ex.A-1 sale deed, which is hit by section 92 of theIndian Evidence Act. Further, the appellants have clearly provedtheir title and possession over the suit property by oral anddocumentary evidence. On the contrary, the first respondent failedto prove her case by any acceptable evidence. The alleged purchasemade by the first respondent/third defendant was not from the realowners of the suit properties. In such circumstances, she cannotclaim any right or title over the suit properties.22. With regard to Ex.A-38 Will dated 18.8.1991 executed bythe first plaintiff and his wife in favour of the secondappellant/3rd plaintiff, the plaintiffs have examined P.W.5, who isthe attestor to the Will. P.W.5 has clearly deposed with regard tothe due execution of the Will by the testators. By examining P.W.5,the appellants/plaintiffs have proved their execution of Ex.A-38Will. Admittedly, Ex.A-38 Will is a joint Will executed by the firstplaintiff and his wife, the first appellant herein. In a joint Will,the Will comes into effect immediately after the death of any one ofthe testators. The findings of the lower appellate court that thejoint Will comes into effect only after the death of both thetestators is not correct. The lower appellate court withoutassigning any reason for not agreeing with the findings of thetrial court, reversed the judgment and decree of the trial court.The lower appellate court ought to have assigned reasons for notagreeing with the judgment and decree of the trial court. Sincethe appellants have produced documentary and oral evidences to provetheir case, the oral evidence let in by the respondents cannotprevail over documentary evidences produced by theappellants/plaintiffs. 23. In these circumstances, I am of the view that thejudgment and decree of the lower appellate court made in A.S.No.80of 2001 is liable to be set aside. Accordingly, the judgment anddecree of the lower appellate court is set aside. The judgment anddecree of the trial court made in O.S.No.12 of 1993 is restored. Thesubstantial questions of law are decided in favour of the https://hcservices.ecourts.gov.in/hcservices/ appellants/plaintiffs. The above second appeal is allowed.However, there shall be no order as to costs. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.rj To1.The Principal District Judge, Perambalur.2.The District Munsif, PerambalurCopy to The Section Officer, VR Section, High court, Madras.+ 1 cc to Mr.R.Subramanian, Advocate, Sr 8649+ 1 cc to Mr.V.Udayakumar, ADvocate Sr 8837+ 1 cc to Spl. Govt., Pleader, High Court, Madras. SR 8465 order in S.A. No.383 of 2003KS (CO)RH (6.3.10)