BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07/07/2009
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.No.755 of 1997
and
C.M.P.No.12746 of 1997
A.Arokiamary ... Appellant/6th defendant
Vs.
1.C.Sesuraj
2.A.Vedamanickam
3.A.Soosairaj
4.A.Savarimuthu
5.L.Danamary
6.Minor L.Christina
7.Minor Jenatha
[Minors-Respondents 6 & 7
represented by their mother
and guardian next friend
the 5th respondent]
... Respondents/
Defendants 2 to 5, 7 to 9
Prayer
This Appeal has been filed under Order 41 Rule 1 of C.P.C., against the
judgment and decree dated 06.04.1993 made in O.S.No.67 of 1989 on the file of
the Sub Judge, Thanjavur.
!For Appellant ... Mr.C.Sundaravadivel
^For Respondents ... No appearance
:JUDGMENT
The 6th defendant in O.S.No.67 of 1989 on the file of the Sub Court,
Thanjavur, is the appellant herein.
2.The plaintiff filed a suit for partition claiming 7/36th share in the
suit properties. The plaintiff is the son of Chinniah @ Arokkiasamy Odayar, the
deceased first defendant and A.Arokiamary, the appellant herein, who is the 6th
defendant in the lower Court was the wife of Chinniah @ Arokkiasamy. The said
Arokkiasamy Odayar had 5 sons, the plaintiff and the defendants 2 to 5 and the
3rd defendant Lourdusamy, died pending trial and his legal-heirs are defendant
Nos.7 to 9. The first defendant, Chinniah @ Arokkiasamy also died and the 6th
defendant was recorded as his legal-heir.
3.The case of the plaintiff is that his father got 2 acres of ‘punja’
lands and 100 ‘Kulis of Manaikat’ lands from his mother and he sold 2 acres in
the year 1979. Thereafter, the father of the plaintiff got lease of ‘cashew
tope’ and out of their joint exertion and from the joint income, 20 acres of
lands were purchased and they were the joint properties of the plaintiff and the
first defendant. The plaintiff further stated that for the education of the 2nd
defendant, 9 acres were sold and for establishing a medical shop at Chennai for
the 2nd defendant, another 4 acres were sold and out of the sale consideration,
Rs.10,000/- was spent for the plaintiff’s marriage. Further, for the marriage
of the 2nd defendant, 4.55 acres of lands were sold and at the instance of the
plaintiff, a tractor was purchased on loan and after selling 4.55 acres of lands
the dues of tractor was paid and in the panchayat held in the month of April
1987, the tractor was transferred in the name of the 1st and 6th defendant and
at that time, it was assured that the plaintiff would be given his due share and
as the defendants refused to give the plaintiff’s share, he filed the suit for
partition.
4.As the 1st defendant died on 18.08.1990, the plaint was amended and the
plaintiff claimed 7/36th share in the suit properties.
5.The defendant Nos.2 to 5, 7 to 9 filed a written statement denying the
allegations made in the plaint and contended that the suit properties were
absolute properties of the 1st defendant and they have also spent various
expenses as mentioned in the plaint and the plaintiff suppressed the income from
the tractor, which belonged to the 1st defendant. Hence, the plaintiff is not
entitled to any share. The 6th defendant, the mother, filed a separate written
statement stating that under a Will dated 31.05.1990, the 1st defendant
bequeathed all his properties in her favour and the Will had come into force on
18.08.1980, after the death of the 1st defendant and therefore, she became the
absolute owner of the property and also claimed that the suit is bad for partial
partition and the plaintiff, defendant Nos.2 to 5 have no right in the suit
properties.
6.On the side of the plaintiff, 67 documents were marked and he examined
three witnesses including himself as P.W.1. On the side of the defendants, 13
documents were marked and the 6th defendant examined herself as D.W.1 and the
2nd defendant examined himself as D.W.2
7.On the basis of the above pleadings and evidence, the following issues
framed by the lower Court:
1.Whether the suit properties were purchased by the joint exertion of the
plaintiff and the first defendant?
2.Whether the suit properties were the absolute properties of the first
defendant?
3.Whether the first defendant executed a Will dated 31.05.1990 in favour
of the 6th defendant?
4.Whether the 6th defendant is having exclusive right over the suit
properties?
5.Whether the plaintiff is entitled to any share in the suit properties
and if so, whether the share claimed by the plaintiff is correct?
6.To what relief the plaintiff is entitled to?
and an additional issue was framed and it is as follows:
1. Whether the suit is bad for mis-joinder of necessary party?
8.The lower Court tried the Issue Nos.1 and 2 and after elaborately
discussing various documents and evidence held that the suit properties were the
absolute properties of the 1st defendant. While answering the Issue Nos.3 and
4, the lower Court held that the 6th defendant failed to produce the Will dated
31.05.1990 alleged to have been executed by the 1st defendant and therefore, the
Will has not been properly proved and hence, the 6th defendant will not get any
exclusive right over the suit properties as the Will has not been produced and
proved. The lower Court also held that the suit is not bad for mis- joinder of
parties and finally, the lower Court held that the plaintiff is entitled to
2/15th share in the suit properties and accordingly, passed a preliminary decree
declaring that the plaintiff is entitled to 2/15th share in the suit properties.
Aggrieved over the same, the 6th defendant filed the above appeal.
9.As stated supra, during trial the 1st defendant, the father, died
leaving behind his wife, the 6th defendant, sons, viz., the plaintiff and the
defendant Nos.2 to 5. Therefore, the lower Court has calculated the share of
the plaintiff holding that the entire properties belonged to the 1st defendant
and the plaintiff had no right over the same., during his life time.
10.The points for consideration in this appeal are:
1.Whether the suit properties were purchased jointly by the plaintiff and
the first defendant from and out of the income from the ‘cashew tope’?
2.Whether the Will dated 31.05.1990 is legally valid?
3.Whether the 6th defendant gets any right in the appeal?
4.What is the share, the plaintiff is entitled to?
11.Point No.2: Though the 6th defendant, the appellant herein, claimed
that her husband executed a Will dated 31.05.1990 bequeathing all the properties
in her favour and after the death of the 1st defendant, she became entitled to
the properties under that Will, the alleged Will was not produced before the
lower Court and it was not validly proved by the 6th defendant. It is well
settled that any person claiming right under a Will, has to produce the original
Will and prove the due execution of the Will by examining at least one attesting
witness. In this case, admittedly the Will was not produced and no witness was
examined and therefore, as rightly held by the lower Court, this point is
answered against the appellant holding that the appellant/6th defendant will not
get any right under the alleged Will as the same was not produced and proved in
accordance with law.
12.Point No.1: It is alleged by the plaintiff that in the year 1970, he
and his father obtained a lease of ‘cashew tope’ and he and his father jointly
put their labour and from and out of the said earnings the suit properties were
purchased. It is stated in the plaint that at the time of filing the plaint in
the year 1989, the age of the plaintiff was shown as 31 years. In the year 1970,
he must be 12 years old and therefore, it cannot be believed that at that age,
the plaintiff contributed his labour with his father and from and out of the
joint exertion the suit properties were purchased. Except the oral evidence of
the plaintiff, no other evidence has been adduced by the plaintiff to prove that
from and out of the joint exertion of himself and the first defendant, the suit
properties were purchased. Though, P.W.2 was examined by the plaintiff to prove
that the suit properties were purchased by the joint exertion of plaintiff and
the first defendant, his evidence did not inspire confidence and no details have
been stated about the joint exertion of the plaintiff along with his father.
Further, P.W.2 is aged about 55 years and he is a Carpenter and he is not able
to say the details of properties purchased by the plaintiff. Similarly P.W.3,
was examined for the purpose of proving that Rs.40,000/- was paid to the 2nd
defendant for his business purpose and even according to P.W.3, he did not say
that the plaintiff and the 1st defendant worked together and purchased the
properties. Therefore, there is no evidence except the evidence of P.W.1 to the
effect that he contributed his physical labour along with his father and the
properties were purchased out of their joint exertion. Further, he was not able
to produce any sale deed in respect of Item Nos.1 and 2 of the suit properties.
The lower Court discussed all these aspects in the judgment and correctly come
to the conclusion that the properties are the absolute properties of the 1st
defendant and the plaintiff had no right over the suit properties and the
properties were not purchased out of the joint exertion of the plaintiff and the
1st defendant.
13.Points No.3 and 4: The lower Court having regard to the religion, to
which the parties belonged to viz., Christianity, rightly held that the 6th
defendant become entitled to 1/3rd share as widow and the remaining 2/3th share
is to be divided among the sons. While holding so, the lower Court held that
the plaintiff is entitled to 2/15th share in the suit properties. In my opinion,
the shares allotted by the lower Court in favour of the plaintiff is not
correct. Admittedly, the 3rd item of the suit property was purchased in the
joint names of the 1st and 6th defendant viz., Exs.A1 and B2. Therefore, in the
3rd item of the suit property, the 6th defendant has half share and 1st
defendant had half share and 1st defendant’s half share devolved on the 6th
defendant and her children and the 6th defendant got 1/3rd of half share from
her husband’s share in the 3rd item of the suit property and she has half share
in the 3rd item of the suit property in her own right. Therefore, in the 3rd
item of the suit property the 6th defendant gets 2/3rd share and the plaintiff
gets 1/15th share. In the 1st and 2nd item of the suit properties, the
plaintiff gets 2/15th share as held by the lower Court.
14.In the result, the appeal is partly allowed holding that in respect of
plaint 1st and 2nd items, the preliminary decree passed by the lower Court is
confirmed and in respect of the 3rd item of the suit property, the plaintiff is
entitled to 1/15th share only and the 6th defendant is entitled to 2/3rd share.
In other aspects, the order of the lower Court is confirmed. Consequently,
connected C.M.P. is closed. No costs.
er
To,
The Subordinate Judge,
Thanjavur.