1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.03.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD) No.107 of 2011 Elangamony ... Appellant/Defendant Vs. 1.E.Suresh Kumar 2.E.Sumitha Devi ... Respondents/Plaintiffs Prayer: Appeal filed under Section 100 of the Civil Procedure Code, 1908 against the judgment and decree dated 30.11.2007 passed in O.S.No.320 of 1998 on the file of the Additional District Munsif Court, Padmanabhapuram, confirmed by the judgment and decree made in A.S.No.14 of 2008 dated 12.11.2008 on the file of the Subordinate Judge, Padmanabhapuram. For Appellant : Mr.D.Sadiq Raja For Respondents : Mr.R.Vijaya Kumar J U D G M E N T The concurrent judgments and decrees passed in O.S.No.320 of 1998 by the Additional District Munsif Court, Padmanabhapuram and in A.S.No.14 of 2008 by the Sub-Court, Padmanabhapuram are being challenged in the present second appeal. 2. The respondents herein as plaintiffs have instituted O.S.No.320 of 1998 on the file of the trial Court for the reliefs of partition and separate possession of their shares, wherein, the present appellant has been shown as defendant. 3. It is averred in the plaint that the plaintiffs are the sons of the defendant. The paternal grandfather of the plaintiffs has executed a will in respect of the suit property in favour of the defendants and he passed away and in the suit properties, the plaintiffs in aggregation are having 2/3 shares. Since the defendant is not amenable for having amicable partition, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that it is true that Sudalaimuthu, father of the https://hcservices.ecourts.gov.in/hcservices/ 2 defendant has executed a will dated 18.10.1976. It is false to say that the said Sudalaimuthu is the paternal grandfather of the plaintiffs. The defendant is a Christian and the plaintiffs are not the sons of the defendant. In the year 1965, the defendant has married one Suganthi. The said Suganthi has given birth to four sons and one daughter. It is false to say that the plaintiffs are the sons of the defendant and they are entitled to claim any right over the suit properties and there is no merit in the suit and the same deserves to be dismissed. 5. In the replication statement filed on the side of the plaintiffs, it is stated that all the averments made in the written statement are false. 6. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendant as appellant has preferred A.S.No.14 of 2008 on the file of the first appellate court. 7. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal, and thereby confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments passed by the courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 8. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 9. On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: “1. Whether any person can claim partition during the life time of a Hindu converted to Christianity with respect to the property is whether self acquired or ancestral? 2. Whether the courts below are right in shifting the burden on the defendant with respect to paternity? 3. Whether son can have an equal right with the father when the grandfather's property have devolved upon his father by way of registered will? 4. Whether the judgment and decree passed by the courts below suffers from the vice of non-joinder of necessary parties? 5. Whether source of a property is a criterion for treating a property either ancestral or absolute? https://hcservices.ecourts.gov.in/hcservices/ 3 6. Whether the property acquired by a registered Will by a Christian is governed by Hindu Law or Indian Succession Act? 7. Whether the courts below are right in ignoring Exs.B.1 to B.3 which are statutory documents where there is a presumption as to their genuineness?” 10. The crux of the case of the plaintiffs is that the plaintiffs are the sons of the defendant and the paternal grandfather of the plaintiffs has executed a will in the name of the defendant in respect of the suit properties and therefore the suit properties are the joint family properties of the plaintiffs and defendant. Since the defendant is not amenable for having amicable partition, the present suit has been instituted for the reliefs sought for in the plaint. 11. The consistent case of the defendant is that the defendant has become Christian in the year 1968 and he married one Suganthi in the year 1965 and she has begotten four sons and one daughter and the plaintiffs have had no connection whatsoever with the defendant and therefore the plaintiffs are not entitled to get the reliefs sought for in the plaint. Under the said circumstances, the present suit deserves to be dismissed. 12. As stated earlier, the courts below have concurrently rejected the defence taken on the side of the defendant. 13. The learned counsel appearing for the appellant/defendant has endeavoured to attack the concurrent judgments and decrees passed by the courts below on the following grounds: a) The plaintiffs have not proved to the effect that they are the sons of the defendant. b) The defendant has married one Suganthi in the year 1965 and she has begotten four sons and one daughter and therefore the question of marrying the mother of the plaintiffs does not arise. c) The defendant has got all the suit properties by virtue of the Will dated 18.10.1976 and therefore the same are his separate properties and therefore the plaintiffs are not entitled to get partition. 14. In order to fizzle out the points raised on the side of the appellant/defendant, the learned counsel appearing for the respondents/plaintiffs has befittingly contended that the plaintiffs are the sons of the defendant and the paternal grandfather of the plaintiffs has executed a will dated 18.10.1976 in respect of the suit properties and therefore the suit properties are nothing but joint family properties of the plaintiffs and defendant and the plaintiffs are having 2/3 shares and since the defendant has failed to effect partition, the present suit has been instituted and further https://hcservices.ecourts.gov.in/hcservices/ 4 on the side of the plaintiffs, replete documentary evidence has been let in so as to prove the status of the plaintiffs and the courts below, after considering all the evidence available on the side of the plaintiffs, have rightly rejected the defence taken on the side of the defendant and therefore the concurrent judgments and decrees passed by the courts below do not warrant interference. 15. On the basis of the divergent submissions made by either counsel, the court has to look into as to “Whether the plaintiffs are the sons of the appellant/ defendant?” 16. The consistent case of the plaintiffs is that they are the sons of the appellant/defendant. But the consistent case of the appellant/defendant is that he has no connection whatsoever with the plaintiffs. Since the paternity of the plaintiffs has been clearly denied on the side of the appellant/defendant, a primordial duty is cast upon the plaintiffs to prove their status as averred in the plaint. 17. On the side of the plaintiffs, various documents have been filed. Ex.A.2 is a document which shows the alleged marriage in between the mother of the plaintiffs and defendant. Exs.A.3 and A.4 are the birth certificates of the plaintiffs. Exs.A.13 and A.14 are the Transfer Certificates of the plaintiffs. From the cumulative reading of the documents mentioned supra, the court can unflinchingly come to a conclusion that the plaintiffs are the sons of the defendant. 18. The learned counsel appearing for the appellant/defendant has advanced his argument on the basis of Ex.B.1 and also on the basis of the evidence given by the mother of the plaintiffs as P.W.1. Ex.B.1 is nothing but a birth certificate of one Kanagaraj, wherein, it has been stated that his date of birth is 20.01.1969. 19. In the written statement, it has been specifically averred that in the year 1965, the defendant has married one Suganthi and even now, he is living with her. But except Ex.B.1, no other clinching document has been filed so as to prove that on the date of Ex.A.2, the marriage between the defendant and alleged Suganthi is in existence. Of course, it is true that the mother of the plaintiffs has been examined as P.W.1 and she admits in her evidence about the existence of the sons of the defendant and that itself is not sufficient to come to a conclusion that on the date of Ex.A.2, the marriage between the defendant and alleged Suganthi is in existence. Therefore, the main attack made on the side of the appellant/defendant goes out without merit. 20. It is an admitted fact that the father of the defendant has executed a will dated 18.10.1976 in favour of the defendant and a registration copy of the same has been marked as Ex.A.1. The learned counsel appearing for the appellant/defendant has also made an inert https://hcservices.ecourts.gov.in/hcservices/ 5 attempt to the extent that since the suit properties have been obtained from the father of the defendant, the suit properties are nothing but his separate properties and in which the plaintiffs are not having right of partition. 21. It is a settled principle of law that properties acquired through paternal side can also be treated as joint family properties. In the instant case on the side of the plaintiffs, evidence has been adduced in galore so as to prove the status as well as paternity of the plaintiffs to the effect that they are the sons of the defendant. Since the plaintiffs are the sons of the defendant and since the properties obtained through Ex.A.1 can also very well be treated as joint family properties, it is needless to say that the plaintiffs are having right of partition. 22. The courts below, after considering all the contentions raised on either side, have rightly rejected the defence taken on the side of the appellant/defendant. In view of the discussion made earlier, this Court has not found any error in the concurrent judgments and decrees passed by the courts below and all the substantial questions of law raised on the side of the appellant/defendant are not at all relevant for the purpose of deciding the real dispute that exists between the parties and altogether, the present second appeal deserves to be dismissed. 23. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is also dismissed. The concurrent judgments and decrees passed in O.S.No.320 of 1998 and in A.S.No.14 of 2008 by the courts below are confirmed. Sd/- Deputy Registrar (LA) /True Copy/ Assistant Registrar To 1. The Subordinate Judge, Padmanabhapuram. 2. The Additional District Munsif, Padmanabhapuram. Copy to: The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.R.Vijayakumar, Advocate (SR.No.7292) S.A.(MD).No.107 of 2011 21.03.2011 vs NSV/30.5.11/5P/5C https://hcservices.ecourts.gov.in/hcservices/