IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03 .11.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A. No.679 of 2002 and C.M.P. No.5594 of 2002 Lakshmi .. Appellant Vs. T.S.Sivarajan .. Respondent Second Appeal under Section 100 of Code of Civil Procedure Code, against the judgment and decree, dated 21.09.2001 passed by the Principal Sub-Court, Gobichettipalayam in A.S.No.19 of 2000, reversing the judgment and decree, dated 27.01.2000 passed by the District Munsif Court, Gobichettipalayam in O.S.No.461 of 1997. For Appellant : Mr.P.K.Muthukumar For Respondent : Mr.R.T.Doraisamy JUDGMENT
This appeal is filed against the Judgment and decree dated 21.09.2001 passed by the Principal Sub-Court, Gobichettipalayam in A.S.No.19 of 2000, reversing the Judgment and decree dated 27.01.2000 passed by the District Munsif Court, Gobichettipalayam in O.S.No.461 of 1997.
2.The averments made in the plaint are as follows:
The suit properties were originally belonging to one Ponnammal @ Thayammal, wife of Perumal Chettiar and she bequeathed the suit properties in favour of this plaintiff under registered Will dated 24.03.1992 and she died on 28.09.1997. As a legatee, the plaintiff was under possession from the date of death of Ponnammal @ Thayammal. During the lifetime of Ponnammal @ Thayammal, she was in possession and enjoyment of the same by way of paying house tax. After her death, the plaintiff was in possession and enjoyment of the same and paying the house tax and patta also stands in her name. Now, the defendant without any right or title, attempted to interfere with the peaceful possession and enjoyment of the plaintiff and he has also gave an application before the Periyakodivery Panchayat Union for transferring patta in his name stating that he had purchased the property from one Seeranga Chettiar and the said Seeranga Chettiar having no right or title over the property. On 19.11.1997, when the plaintiff was carried out the repairs, the defendants were attempted to restrain the work. Hence, the plaintiff constrained to file the suit for declaration of title and injunction and prayed for any decree.
3. Written statement filed by the defendant is as follows:-
The suit property is a separate property of Seeranga Chettiar, who is the father of the defendant. The said Seeranga Chettiar is having two sisters namely, Beriammal and Ponnammal. Seeranga Chettiar’s father is Govinda Chettiar and mother is Thayammal and the said Thayammal was died 30 years back. The defendant’s father Seeranga Chettiar was in possession and enjoyment of the Door Nos.30 and 14, Sarojini Street and patta also stands in his name. The defendant had purchased the property from his father and he has been in possession and enjoyment of the same. Beriammal daughter is the plaintiff. She is residing with her husband in Door No.13 at D.G.Pudur. The plaintiff’s son Senthilkumar is a councillor and by using his official capacity, he had changed the patta and house tax in the name of Ponnammal @ Thayammal, who was on receipt of old age pension after the death of her husband. Seeranga Chettiar, who is the brother of said Ponnammal, has permitted her to reside in his house at Door No.30, Sarojini Street and he has also taken steps to obtain pension for her. She died on 30.05.1998. So, Ponnammal was never called as Thayammal and the voter list also proved the same. Therefore, the plaintiff has obtained a fabricated false patta in the name of Thayammal, wife of Perumal Chettiyar. But, patta has been changed in the name of defendant on 24.03.1997 itself. The plaintiff and his son Senthilkumar has taken away the house tax receipts has been in the name of Thayammal, who is the grand mother of plaintiff as well as defendant and they also filed the same before the Court. They removed the lock and key of the suit property, which the defendant had locked on 24.11.1997 and put up another lock and key as if she was in possession and enjoyment of the property in the presence of the Commissioners visit. Hence, the defendant prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed necessary issues and considering the oral and documentary evidence, decreed the suit. Against the decree and the Judgment passed by the trial Court, the respondent/defendant preferred an appeal. The learned first Appellate Judge has considered the arguments and setting aside the decree and Judgment passed by the trial Court and dismissed the suit and allowed the appeal, against which, the present Second Appeal has been preferred by the plaintiff as the appellant.
5. At the time of admission, the following substantial questions of law was framed for consideration:
“1. Whether the first appellate Court erred in law in reversing the well considered Judgment and decree of the trial Court by not giving any independent finding with regard to the possession and enjoyment of the suit property especially when the trial Court has categorically found in favour of the plaintiff that she is in possession and enjoyment of the suit property?
2. Whether the first appellate Court erred in law in discussing the question of adoption in the absence of any specific plea by the respective parties to that effect and in the absence of any such issue being framed warranting such discussion and finding.
3. Whether the first appellate Court erred in law in not appreciating the evidence under Ex.A1, A2, A43 to A47 in a proper and perspective manner especially when the defendant failed to let in any evidence contra to these documents either by documentary or oral?”
6. The learned counsel appearing for the appellant would submit that the appellant/plaintiff herein filed a suit for declaration of title and injunction, on the basis of the Will executed by Ponnammal @ Thayammal. The suit properties were originally owned by Ponnammal @ Thayammal and to prove the same, she has filed Exs.A3 to A49. Ex.A2 is the Will, executed by Ponnammal @ Thayammal was marked and P.Ws.2 and 3 are the attestors of the said Will were examined. The death certificate of Ponnammal @ Thayammal was marked as Ex.A1. As per the said Will, the appellant is the beneficiary and in pursuance of the said Will, she was and is in possession and enjoyment of the suit property. The trial Court had considered the same in proper perspective and decreed the suit. But the first Appellate Court had without considered the documentary evidence and came to the conclusion that Thayammal is entirely different from Ponnammal and since the plaintiff failed to prove that the properties were owned by Ponnammal, the suit was dismissed by the first appellate Court, which is against law and hence, he prayed for allowing this appeal.
7. The learned counsel appearing for the respondent/defendant would submit that originally the properties were owned by the paternal grand mother Thayammal and the paternal grand father Govinda chettiar. They are having one Son and two daughters namely, Seeranga Chettiar and Beriammal and Ponnammal. Ponnammal has no issues and Beriammal has one daughter namely, Lakshmi, who is the appellant/plaintiff herein. Seeranga Chettiar has one son namely, Sivarajan, who is the defendant/respondent herein. The appellant herein is not filed any document to show that Ponnammal is also known as Thayammal and both Ponnammal and Thayammal are one and the same person. From 1977 till her death, Ponnammal has received old age pension and she was residing separately in the suit house on the permission given by Seeranga Chettiar, who is none other than the brother of Ponnammal. After her death, the appellant/plaintiff, with the help of her son Senthilkumar, who is politically influenced, had fabricated the document and filed the suit. Hence, he prayed for dismissal of the present appeal.
8. Considered the rival submissions made on either side.
9. Now, this Court has to decide whether the suit property was owned by Ponnammal and whether Ponnammal was also known and called as Thayammal. Since the suit was filed by the appellant, it is her duty to prove that Ponnammal was also known as Thayammal and the suit properties were separate properties of Ponnammal. Even though she has filed documents as Exs.A1 to A55, she has not filed any document to show that Thayammal was known as Ponnammal and Thayammal and Ponnammal are one and the same, except Exs.A1 and A2. Exs.A3 to A20, A22 to A42 and A44 to A46 are house tax receipts, which stand in the name of Thayammal. Those documents were from 1956 onwards, but none of the document was mentioned as Thayammal @ Ponnammal or Ponnammal @ Thayammal and in those documents, it was mentioned only as Thayammal. Ex.A21 is the house tax receipt, which stands in the name of one Muniappa Chettiar.
10. At this juncture, it is appropriate to consider Ex.A43 is the Family I.D. Card, dated 21.11.1989, in which, it was mentioned as Thayammal, Sarojini Street and it has been given for issuing family card. But in that document, no signature has been find place, which is irrelevant. Ex.A49 is the Family Card from 1990 to 1995, in which, it was mentioned as Thayammal. But in that document also, it was never mentioned as Thayammal @ Ponnammal. Now, it is appropriate to consider Ex.A53-a voter census card was issued on 17th September, in which, it was mentioned as Ponnammal, wife of Perumalsamy.
11. On the side of the respondent/defendant, Ex.B1-a Voter I.D. Card issued by the Election commissioner of India was marked, in which, it was mentioned as Ponnammal, wife of Perumalsamy and as on 01.01.1995, she was aged about 81 years and her address was mentioned as No.29, Sarojini Street, Periyakodiveri Town Panchayat, Gobichettipalayam Taluk, Erode District. There is no dispute that the said voter card has been issued to the testator of Ex.A2-the Will. As per the Death Certificate Ex.A1, she died on 28.09.1997. But in the said Will Ex.A2, it was executed on 24.03.1992, in which, it was stated as Ponnammal @ Thayammal. But in Ex.B1, it was mentioned only as Ponnammal, wife of Perumalsamy. Ex.B7 is the certificate, which was issued by the Village Administrative Officer and the same was marked to prove that the deceased Ponnammal had received an old age pension. Ex.B8 is the voter list for the year 1996, in which, it was mentioned in serial No.446 at part No.2 as Ponnammal, wife of Perumalsamy, 81 years, residing at D.No.29, Sarojini Street. Ex.B10 is the certified copy of the voter list for the year 1966, in which, it was mentioned as serial No. 429, Ponnammal, wife of Perumalsamy and serial No.430, Thayammal, wife of Govinda Chetty and their names have been find place in Sarojini Street, Periyakodiveri Town Panchayat. As per Ex.B10, the document filed by both sides shows that the property belonging to Thayammal. But there is no document to show that Ponnammal is also known as Thayammal and she is having the alias name of Thayammal, like that in Exs.A1 and A2. In absence of the same, I am of the view that the suit property is not belonging to this Ponnammal and to grab the property only, it was mentioned as Ponnammal @ Thayammal in the said Will Ex.A2. After the execution of the Will only, the death certificate was recorded as Ponnammal @ Thayammal, wife of Perumalsamy. But the voter I.D. Card issued by the Election Commissioner of India i.e. Ex.B1 has clearly proved that Ponnammal, wife of Perumalsamy is not known as Ponnammal @ Thayammal.
12. It is pertinent to note the genealogy between the parties as follows:
Govinda Chettiar
|
= wife
Thayammal
|
|—————– |———————–|
| | |
Seeranga Chettiar Beriammal Ponnammal
| | |= husband
Sivarajan | (daughter) |
(defendant) Lakshmi Perumalsamy
(plaintiff)
The suit property is belonging to the family of both the plaintiff and the defendant. But at the time of filing the suit, the appellant/plaintiff is not mentioned their relation ship and only the respondent/defendant alone has mentioned their relationship and stating that since Ponnammal husband was died, she was permitted to reside in the said suit property by his father Seeranga Chettiar and till her death, she was residing there. Further, Seeranga Chettiar has made an arrangement to her sister for getting her old age pension. Ex.X1 is the File relating to the issuance of old age pension to Ponnammal, wife of Perumal Chettiar and the said order has been passed on 23.04.1977, in which, it was specifically mentioned that Perumal Chettiar’s wife is Ponnammal, aged about 65 years and she is a widow and she has no issues, no property, no income yielding source and she has also poor sight, so she was unable to work. The said order is extracted hereunder:
@nfhgp tl;lk;. bghpabfhonthp fpuhkk;. jhrg;g ft[z;ld; g[JhhpypUf;Fk; bgUkhs;brl;o kidtp bghd;dk;khs; taJ 65/ fztid ,He;jth;/ brhj;Jf;fs; VJkpy;iy/ thhpRfSkpy;iy/ tUkhd Mjhuk; VJkpy;iy/ fz; ghh;it k’;fp vt;tpj ntiya[k; bra;a ,ayhjth;/ Chpy; bjhpe;j kdpjh;fspd; jatpdhy; $Ptpj;J tUfpwhh;/ nfhgp tl;l tpepnahf mjpfhhp nehpy; ghh;itapl;L. Kjpnahh; cjtpj; bjhif tH’;fg; ghpe;Jiu bra;Js;shh;/ Kd;bkhHpf; fl;Lfs; ,j;Jld; mDg;gg;gLfpd;wd/ jpUkjp/bghd;dk;khSf;F Kjpnahh; cjtpj; bjhif tH’;fg; ghpe;Jiu bra;ag;gLfpwJ/@
The above said order shows that she has not possessed any property. Ponnammal has also given an application stating the above facts , which was received on January 1977. While perusing the entire file, the Doctor has also given certificate that her age is about 65 years. The deposition has also been obtained from Ponnammal and villagers, then only the above said order has been passed. The documents in Ex.X1 came into effect much prior to this litigation and in that it was specifically mentioned that Ponnammal has not possessed any property. So, I am of the view that the document Exs.A.3 to A.20 and A.22 to A.41–house tax receipts, which stands in the name of Thayammal, only related to Thayammal, wife of Govinda Chettiar, who is the grandmother of both the appellant and respondent and not related to this Ponnammal. So, the first Appellate Court has considered this aspect in proper perspective.
13. It is true that whether the appellant is an adopted daughter of Ponnammal is an immaterial, since she is claiming her title under the Will executed by Ponnammal @ Thayammal. As per Ex.A2, in which, it was specifically mentioned that only daughter of her sister was under the care and custody of her and the same is extracted as hereunder:
@vdJ cld; gpwe;j j’;ifapd; xnu kfshd yl;Rkp vd;gtis ehd; mtsJ rpWtaJ Kjy;bfhz;L mtis vdJ tsh;g;g[ kfshf Vw;W ehnd jpUkzk; kw;Wk; ekJ Fyhr;rhug;go rPh;rpwg;g[ tifawhf;fisa[k; bra;J itj;njd;/ jtput[k; nkw;go yl;Rkp vd;gtns ehsJ tiu vd;id ed;F guhkhpj;Jk; ghJfhj;Jk; tUfpwhs;/@
So, in the above statement, it was not stated that the appellant/plaintiff is an adopted daughter of Ponnammal and furthermore, she has not claiming the suit property as an adopted daughter of Ponnammal.
14. Per contra, the appellant/plaintiff has claimed her title to the suit property only on the basis of the Will i.e. Ex.A2. So, the first appellate Court has, in para-19 in the judgment, discussed about whether Ponnammal is a step mother of the appellant and the same has been considered. But it is immaterial that whether she is an adopted daughter of Ponnammal @ Thayammal.
15. Ex.A2 only came into existence in the year 1992 and in Ex.A43-one ID chit was marked and in that it was stated as @FLk;g ml;il bgw;Wf;bfhz;ljw;fhd xg;gk;@. but there is no signature was found place in the said ID chit and nothing has been mentioned and therefore, it is not reliable. Under these circumstances, no reliance can be placed on Ex.A43. Ex.A44 is a demand notice for payment of house tax and it is the year of 1957. Admittedly, it stands in the name of Thayammal, who is none other than the mother of Ponnammal. Exs.A45 and A46 are also the demand notices for payment of house tax, which stand in the name of Thayammal in the year 1959 and 1958 respectively. So, those documents are only stand in the name of Thayammal and in those documents, it was never mentioned as Ponnammal @ Thayammal. Ex.A47 is the patta issued only on 27.07.1992. In that it was mentioned as Thayammal, wife of Perumal Chettiar. While perusing Exs.A.1 and A.47, those documents were fabricated with a view to grab the suit property by this appellant. Exs.A.44 to A.46 are only house tax payment receipts stands in the name of Thayammal.
16. On considering the entire oral and documentary evidence, it has not clearly proved that property is owned by Ponnammal @ Thayammal and Ponnammal is also known as Thayammal. Under such circumstances, I am of the opinion that the appellant/plaintiff has miserably failed to prove that the property is belonging to Ponnammal, who is also known as Thayammal, wife of Perumalsamy.
17. Per contra, the learned counsel for the respondent herein has to prove that Ponnammal has no issues and she has no property and she received the old age pension. He has also to prove that Ponnammal was permitted to reside at the suit property by his brother till her death. So, the appellant/plaintiff has failed to prove this case and hence, she is not entitled for declaration of title. Since she has not entitled to declaration of title, she has not entitled injunction as prayed for.
18. It is pertinent to note that the Will will not confer any title, unless the testator has valid title over the property. Since the appellant herein has failed to prove that the testator in Ex.A2 has valid title over the property, I am of the view that the appellant has not entitled any declaration of title to the suit property and injunction. Hence, the second appeal deserves to be dismissed.
19. In fine:
(a) The Second appeal is dismissed.
(b) The Judgment and decree passed by the first appellate Court in A.S.No.19 of 2000 dated 21.09.2001, on the file of the Principal Sub-Court, Gobichettipalayam, are hereby confirmed.
(c) No costs.
(d) Consequently, connected Civil Miscellaneous Petition is closed.
kj
To
1. The Principal Sub-Court, Gobichettipalayam.
2. The District Munsif Court, Gobichettipalayam.
3. The Record Keeper
VR Section, High Court,
Madras