IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 20.06.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.242 of 1994 C.Thiagarajan .. Appellant/Defendant Vs. 1.C.Durai (dead) 2.D.Ramalingam . . Respondent /Plaintiff (second respondent impleaded as legal representatives of the deceased sole respondent vide order dated 06.11.2007 made in C.M.P.No.336 of 2007) The First Appeal is filed U/Sec.96 of the C.P.Cagainst the judgment and decree dated 25.08.1993 made in O.S.No.170 of 1988 on the file of the Subordinate Judge, Thiruvannamalai. For Appellants : Mr.T.R.Rajaraman For Respondents : Mr.N.Sriram JUDGMENT This appeal is focussed as against the judgment and decree in O.S.No.170 of 1988 dated 25.08.1993 passed by the learned Subordinate Judge, Thiruvannamalai. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The quintessence of the case of the plaintiff as stood exposited from the plaint could be set out thus; The plaintiff and the defendant are brothers being the sons of the deceased Chinnasamy Pillai and Angammal. During the life time of the plaintiff's parents a partition was effected. However, at that time, the jewels were left with the mother of the plaintiff with the understanding that after her death, the jewels were to be shared equally between the plaintiff and the defendant. After such partition, the parents of the plaintiff and defendant were living with the defendant. The mother died on 08.02.1984. The father died on 16.03.1988, whereupon, the defendant came into possession of jewels https://hcservices.ecourts.gov.in/hcservices/ as set out in the schedule of the plaint as well as in Ex.A1 which were earlier entrusted to the mother; even during the life time of the father, the plaintiff made a demand for partitioning the said jewels. But the father responded by observing that the plaintiff and defendant could share those jewels after his death. The father gave one pair of pearl bangles weighing 0.7½ grams to the plaintiff and the defendant. The plaintiff prepared a list of jewels to be partitioned (Ex.A1). However, the defendant added to the list some more items, which according to him were left out and the list so prepared were left with the plaintiff. After the death of the father of the plaintiff and the defendant, the request made by the plaintiff was turned down by the defendant. Whereupon, Panchayat was convened on 17.07.1988 consisting of S.Annamalai Pillai, N.Pandurangan, M.Chakkarai, G.Venkatesan, A.Ellapa Pillai, N.Shankar, V.Radhakrishanan and A.Panchaksharam and during the Panchayat the plaintiff and the defendant were present and the Panchayatdars and the defendant accepted the list Ex.A1 as correct. But, the defendant demanded 0.40 gms of gold jewels more than a share in view of he having maintained his parents for which, the plaintiff also agreed. In the panchayat the defendant was directed to produce 110 grams of gold jewels and get it shared equally between the plaintiff and the defendant and in the absence of it, the defendant was directed to pay a sum of Rs.37,111/- to the plaintiff. Even though the defendant promised to hand over the jewels to the extent of the share of the plaintiff, nonetheless he failed to do so. Hence the suit. 3. Per contra, denying and refuting, impugning and challenging, the allegations/averments in the plaint, the defendant filed the written statement, the warp and woof of it would run thus; The jewels as found set out in the plaint of the schedule, are available with the plaintiff. Ex.A1 is not a true list but it is an imaginary one. No panchayat as alleged in the plaint was conducted and he did not agree to produce any jewels much less than ones as in Ex.A1 and share them with the plaintiff. As per the partition deed Ex.B1, dated 30.06.1975 which emerged among the plaintiff, the defendant and their parents, it was recited there that there were no movable properties to be shared between the plaintiff and the defendant. Accordingly, he prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During trial on the side of the plaintiff, PW1 was examined along with PW2 to PW5 the panchayatdars and Ex.A1 to Ex.A4 were marked. The defendants examined as DW1 along with DW2 on his side and Ex.B1 to Ex.B7 were marked. Ultimately the trial Court decreed the suit for partition. Consequently, the preliminary decree was passed as prayed for by the plaintiff. 5. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendant filed this appeal on the https://hcservices.ecourts.gov.in/hcservices/ various grounds, the quintessence of them would run thus; The judgment and decree of the trial Court is against law, weight of evidence and all probabilities of the case. Ignoring the recitals in the Ex.B1, the partition deed, the trial Court decreed the suit. The trial Court erred in holding that the mother of the plaintiff and the defendant had her jewels till her death, when absolutely there were no evidence to that effect. Ex.A1 was wrongly relied on by the trial Court. Ex.A1 which is alleged to have emerged anterior to Ex.B1 cannot have any enforceability after the emergence of Ex.B1. Accordingly he prays for the dismissal of the suit. 6. The points for consideration are as under; 1) Whether the jewels as found in the plaint schedule as well as in Ex.A1 existed at any point of time at all and if so whether the jewels are in the possession of the defendant? 2) Whether the plaintiff is entitled to claim a share in these jewels? 3) Whether there is any infirmity in the judgment and decree of the trial Court? 7. Points 1 and 2 are taken together for discussion as they are inter-linked and inter-woven with each other. 8. The learned counsel for the defendant animadverting upon the finding of the trial Court based on Ex.A1 but after ignoring Ex.B1, would develop his arguments that the recital in Ex.B1 would unambiguously and incontrovertibly highlight the fact that the plaintiff himself admitted candidly and categorically that there were no movable properties to be partitioned between the plaintiff and the defendant; there is no iota or shred of evidence to demonstrate that the mother of the plaintiff and defendant, possessed the jewels mentioned in the plaint till her death and that they were taken away by the defendant, the mother was living away from the defendant and that he had no opportunity of coming into possession of the jewels at all. 9. Per contra, by way of torpedoing of the arguments of the learned counsel for the appellant/defendant, the learned counsel for the respondent/plaintiff would spotlight the available evidence to the effect that PW2 to PW5 the Panchayatdars, who had no axe to grind in the matter, without any embellishment detailed and delineated the facts to the effect that there emerged a Panchayat, during such proceedings the defendant agreed to share the jewels as found set out in Ex.A1, with the plaintiff and the defendant's request for taking 40 grams of jewels more than the plaintiff's share in view of the defendant having maintained his parents also was acceded to Ex.A3 the reply notice given by the defendant would speak volumes that he admitted the existence of the jewels in his possession. https://hcservices.ecourts.gov.in/hcservices/ 10. A perusal of the evidence, would demonstrate that the defendant in one breath would contend that no Panchayat took place at all as alleged in the plaint; Whereas in another breath in his deposition he would admit that a Panchayat took place in connection with the land dispute relating to an extent of 5 cents which erupted between the plaintiff and the defendant. 11. It is therefore crystal clear that a Panchayat took place in connection with the dispute between the plaintiff and the defendant. It is not the case of the defendant that PW2 to PW5 were not Panchayatdars at all. No doubt DW1 would raise his accusative finger against the Panchayatdars as they were all close relative to the plaintiff. I am at a loss to understand as to how the defendant being the brother of the plaintiff could take such a plea. The relatives of the plaintiff would be the relatives of the defendant also. The cumulative reading of the deposition of PW2 to PW5 would convey and exemplify that during the Panchayat the defendant without mincing words admitted that he would share the jewels as found set out in the Ex.A1 along with the plaintiff; moreover, the defendant's claim for 40 grams of gold jewels more than the share of the plaintiff was also accepted by the plaintiff and accordingly out of the 260 grams of gold jewels, 40 grams of jewels were permitted to be taken by the defendant exclusively and the remaining 220 grams of jewels were agreed to be divided between the plaintiff and the defendant at the rate of 110 grams each. The evidence also would clearly prove that on the date of Panchayat itself, physical partition of the jewels could not take place because the defendant had to come forward with a plea that the jewels were in the bank locker and that he would give later. 12. The contention of the defendant is that Ex.A1 is an inadmissible piece of document as it does not bear the signature of any one. No doubt if Ex.A1 is considered in isolation, without any hesitation, the Court has to hold that it is nothing but a mere piece of paper having no evidentiary value and it is not even worth the paper on which it is written. But in this case, the position is entirely different. In Ex.A3, the reply notice, the defendant himself categorically averred thus; "At the time of the partition it was stated by your client that certain jewels have been left with the mother and a list was prepared. My client stated that apart from the jewels included in the list there were some other jewels also and he also showed it in the list." (emphasis supplied) It is therefore clear that the defendant himself admitted the unsigned list in which he also added some more items. A perusal of Ex.A1 would fit into the description as given by the defendant in the his reply notice. Moreover, the evidence of Panchayatdars would https://hcservices.ecourts.gov.in/hcservices/ clearly demonstrate that Ex.A1 was shown before the Panchayatdars and the defendant, before them agreed to the contents of Ex.A1. Hence in this factual matrix, Ex.A1 has evidentiary value of its own and the trial Court cannot be faulted with for having placed reliance on Ex.A1. 13. Relying on Ex.B1, the registered partition deed dated 30.06.1975, the learned counsel for the defendant would advance his arguments that the recitals in it would unambiguously and unassailably spotlight that there were no movables to be partitioned. Ex.B1 emerged during the year 1975 whereas the mother of the parties to the proceedings, died in the year 1984; consequent upon the death of the mother alone partition relating to the jewels of the mother would arise. Hence, Ex.B1 can never be taken as the one which would be an embargo as against the claim of the plaintiff for the jewels. 14. The learned counsel for the defendant would raise a point that absolutely there is no certainty that the mother of the parties at the time of her death possessed those jewels, even assuming that such jewels were entrusted to her in and around the time of emergence of Ex.B1. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. The defendant has come forward with prevaricative stands as highlighted supra. He had put forth the plea that the parents of the parties were not living with him at the time of the death of the mother. However, Ex.B2 and Ex.B3 the death certificates of the parents of the parties would clearly evince and evidence that at the relevant time of their deaths, they were living at Door No.11, Valayalkara Street, Thiruvannamalai and the defendant clearly admitted that he resided only in that address and the place of death was also the same. A fortiori, the defendant had the opportunity of coming into the possession of the jewels of his mother. In the wake of the clinching evidence, absolutely there in no necessity to interfere with the judgment and decree of the lower Court. Accordingly, the judgment and decree of the Court below is confirmed and the appeal is dismissed. However, in the circumstances of the case, the respective parties are directed to bear their costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ jikr To 1. The Subordinate Judge, Thiruvannamalai, (with records) 2. The Section Officer, VR Section, High Court, Madras. + 1 CC To Mr.M.Sriram, Advocate SR NO.31752 + 1 CC To Mr.T.R.Rajaraman, Advocate SR NO.31730 A.S.NO.242 OF 1994 KSK(CO) SRA(12/07) https://hcservices.ecourts.gov.in/hcservices/