1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.204 of 2011 and MP(MD)No.1 of 2011 Jeyaraj .. Appellant/Defendant Vs. Chairman Nadar (died) 1.Ponnuthai .. Respondents/Plaintiffs Second Appeal filed under section 100 of CPC against the Judgment and decree dated 26.11.2010 passed in Appeal Suit No.27 of 2007 by the Sub Court, Tuticorin confirming the Judgment and decree dated 18.09.2006 passed in Original Suit No.775 of 2004 by the Additional District Munsif Court, Tuticorin. For Appellant : Mr.G.Prabhu Rajadurai For Respondent : No appearance JUDGMENT This second appeal has been directed against the concurrent Judgmnets and decrees passed in Original Suit No.775 of 2004 by the Additional District Munsif Court and in Appeal Suit No.27 of 2007 by the Sub Court, Tuticorin respectively. 2. The respondents herein as plaintiffs have instituted Original Suit No.775 of 2004 on the file of the trial Court praying to cancel the gift deed dated 31.03.1992, wherein the present appellant has been shown as sole defendant. 3. In the plaint it is averred that the first plaintiff is the father of the defendant. The defendant is the only son of the first plaintiff. Apart from the defendant, the first plaintiff is having three daughters and one of them is the second plaintiff by name Ponnuthai and her husband has passed away on 21.04.1985 leaving behind her and two children and now she is residing in a portion of the suit property. The first plaintiff is aged about 70 and having poor eye sight. Due to his poor eye sight and defective hearing he is not able to work from the beginning of 1992. The first plaintiff is the owner of the suit property. The defendant has represented to the first plaintiff on 30.03.1992 that the first plaintiff would execute a will in respect of the suit property in his favour and also in favour of the second plaintiff and on 31.03.1992 the defendant has got thumb impression of the first https://hcservices.ecourts.gov.in/hcservices/ 2 plaintiff on various stamp papers by way of representing that the first plaintiff is going to execute only a will as expressed by him. The first plaintiff has no intention to gift away the suit property to the defendant. The first plaintiff has come to know of the fraud committed by the defendant after two months and subsequently he sent legal notice to him. The defendant has sent a reply notice. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 4. In the written statement filed on the side of the defendant it is averred that the relationship mentioned in the plaint is correct. But it is false to say that the first plaintiff is aged about 70 and he is having poor eye sight. The first plaintiff has been working in salt grinding mill. It is false to say that only under the guise of executing a will, the first plaintiff has been taken to Registrar office by the defendant. The first plaintiff out of his own volition and also voluntarily executed the gift deed dated 31.03.1992. The present suit is barred by limitation and there is no merit in the suit and the same deserves to be dismissed. 5. In the additional written statement filed on the side of the defendant it is averred that the gift deed in question has acted upon and mutation has also taken place. There is no merit in the suit and the same deserves to be dismissed. 6. On the basis of the rival 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. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.27 of 2007 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 and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 8. Even though the respondent has been served with summons, appearance has not been made. Under the said circumstances, the present second appeal is disposed of on merits at the stage of admission on the basis of the contention urged on the side of the appellant/defendant. 9. On the side of the appellant/defendant the following substantial questions of law have been raised for consideration: (a) Whether the Courts below are correct in relying on the ex parte evidence given by the 1st plaintiff in deciding the case, even after the ex parte decree was set aside and that the 1st plaintiff was not subjected to cross examination? https://hcservices.ecourts.gov.in/hcservices/ 3 (b) Whether the Courts below are correct in law in cancelling the gift deed Ex.A1 merely on two grounds, which are not relevant when the document was sought to be impeached on the ground of undue influence and misrepresentation? (c) Whether the Courts below are correct in law in upholding a will, when the executant was admittedly not having proper mental and physical health? 10. Before analysing the argument advanced on the side of the appellant/defendant the Court has to narrate the following admitted facts on the basis of the averments made in the plaint. In the plaint it is stated that the suit property is the absolute property of the first plaintiff. The defendant is his only son. Apart from the defendant, the first plaintiff is having three daughters. In paragraph-7 of the plaint it has been specifically stated that the defendant has represented to the first plaintiff on 30.03.1992 that he would execute a will in respect of the suit property in favour of the defendant and one of his sisters by name Ponnuthai and accordingly on 31.03.1992, thumb impression of the first plaintiff has been taken on stamp papers and further it is stated that the defendant has represented to the first plaintiff that he has executed a will as expressed by him. 11. From the averments made in the plaint, it is made clear that on 31.03.1992 the first plaintiff has executed the deed in question. 12. The main contention urged on the side of the plaintiffs is that the first plaintiff has decided to executed a will in favour of the defendant and second plaintiff. But due to fraud and misrepresentation made by the defendant, the deed in question has been executed as gift deed and therefore, the same is liable to be cancelled. 13. In paragraph-11 of the plaint also it has been clearly stated that only due to fraud and misrepresentation of the defendant, the gift deed dated 31.03.1992 has come into existence. 14. Since a specific stand has been taken on the side of the plaintiffs to the effect that the gift deed dated 31.03.1992 has come into existence due to alleged fraud and misrepresentation committed by the defendant, entire burden lies upon the plaintiffs to prove the same. 15. In the instant case, the competent witness to speak about the alleged acts of fraud and undueinfluence is nothing but the first plaintiff. But the first plaintiff has passed away before deposing evidence in support of the averments made in the plaint. But however he has given evidence before decreeing the suit in ex parte. The trial Court has solely relied upon the evidence given by the first plaintiff at the time of passing ex parte decree. Since ex parte decree passed in the present suit has subsequently been https://hcservices.ecourts.gov.in/hcservices/ 4 set aside, the evidence given by the first plaintiff cannot be relied upon. 16. The consistent case of the defendant is that on 31.03.1992 the first plaintiff has voluntarily executed the gift deed in question. The gift deed alleged to have been executed by the first plaintiff has been marked as Ex.B1 and its registration copy has been marked as Ex.A1. In Ex.B1 two attesting witnesses namely Palanisamy and Murugesan have put their signatures and both of them have been examined as DWs.2 and 3 on the side of the defendant. Both of them have consistently stated in their evidence that on 31.03.1992 the gift deed in question has been executed by the first plaintiff in favour of his son viz., the defendant and he put his thumb impression and subsequently both of them have put their signatures. Therefore, on the basis of the evidence given by DWs.2 and 3 coupled with necessary averments made in the plaint to the effect that on 31.03.1992 the first plaintiff has executed a deed, the Court can very well come to a conclusion that Ex.B1 has been executed by the first plaintiff in favour of the defendant knowing fully well that the same is nothing but a gift deed. 17. The trial Court has accepted the contention urged on the side of the plaintiffs mainly on the basis of some recitals found in Ex.B1. In Ex.B1, the father name of the executant viz. the first plaintiff is shown as Sivalinga Nadar. In fact, the trial Court has come to a definite conclusion to the effect that since in Ex.B1 the father name of the first plaintiff is shown as Sivalinga Nadar, Ex.B1 is nothing but a will. 18. At this juncture, the learned counsel appearing for the appellant/defendant has drawn the attention of the Court to Ex.B5. In Ex.B5 it has been clearly stated that the father name of the first plaintiff is Sivalinga Nadar. Therefore, the reason given by the trial Court for coming to a conclusion that the first plaintiff has really intended to execute a will in favour of the defendant and second plaintiff is totally incorrect and further as stated in many places, it is not the case of the plaintiffs that the first plaintiff has not executed the indenture dated 31.03.1992. The consistent case of the plaintiffs is that due to fraud and misrepresentation made by the defendant, the first plaintiff has executed the gift deed dated 31.03.1992. Even though entire burden lies upon the plaintiffs to prove the same, no clinching and trustworthy evidence has been forthcoming on their side. 19. It has already been pointed out that for the purpose of proving the due execution and also attestation of Ex.B1 on the side of the defendant DWs.2 and 3 have been examined. Both of them have clearly stated in their evidence that Ex.B1 is nothing but a gift deed and the same has been executed by the first plaintiff in favour of his son viz, defendant and in Ex.B1, the first plaintiff has put his thumb impression and after that both of them have put their signatures. Therefore, from the cumulative reading of the evidence given by DWs.2 and 3 coupled with the fact that the https://hcservices.ecourts.gov.in/hcservices/ 5 plaintiffs have not at all proved the stand taken in the plaint, it is very clear that Ex.B1 is nothing but a gift deed and the same has been voluntarily executed by the first plaintiff in favour of the defendant. 20. The first plaintiff has executed a will on 27.10.1999 in favour of the second plaintiff. Considering the fact that after execution of Ex.B1, the first plaintiff has had no right so as to touch the property, Ex.A10 is nothing but a void document. 21. The present suit has been instituted so as to cancel the gift deed dated 31.03.1992. This Court after considering the evidence available on record has come to a definite conclusion that Ex.B1 is nothing but a valid document and the same has been executed by the first plaintiff in favour of the defendant. Since Ex.B1 is nothing but a valid document, the same cannot be cancelled. 22. The Courts below without considering the available evidence on record have erroneously come to the conclusion that Ex.B1 has been obtained by fraud and misrepresentation made by the defendant. The reasoning given by the Courts below for rejecting the defence taken on the side of the defendant is totally unreasonable. In view of the discussion made earlier this Court is of the view that the Judgments and decrees passed by the Courts below are totally erroneous and the same are liable to be set aside. Since the Judgments and decrees passed by the Courts below are liable to be set aside, the substantial questions of law raised in the present second appeal are decided in favour of the appellant/defendant. 23. In fine, this second appeal is allowed at the stage of admission without cost. Connected Miscellaneous Petition is closed. The concurrent Judgments and decrees passed by the Courts below are set aside and Original Suit No.775 of 2004 is dismissed without cost. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Tuticorin 2.The Additional District Munsif Court, Tuticorin mj ssk/21.07.2011 /3c-5p/- SA (MD) No.204 of 2011 01.07.2011 https://hcservices.ecourts.gov.in/hcservices/