IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.7.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.492 of 1998 Mahalingam .. Appellant/10th defendant -vs- 1. Mrs Rajalakshmi ..1st respondent/plaintiff 2. M.Ramakrishnan 3. Mrs.Karpagam 4. Mr.Moorthy 5. Kalaivani 6. Amirthavalli 7. Malarvishi 8. Minor J.Tamilvel represented by his mother and guardian adlitem Amirthavalli 9. Rajathi .. Respondents 2 to 9/D2 to D9 This appeal is filed under Section 96 of CPC against the Judgment and decree dated 6.4.1998 made in O.S.No.15 of 1995 on the file of the Court of Additional District Judge, Pondicherry at Karaikal. For appellant : : Mr.S.James, Advocate For respondents : : No appearance JUDGMENT This appeal has been directed against the decree and Judgment in O.S.No.15 of 1995 on the file of the Court of Additional District Judge,Pondicherry at Karaikal. 2. The admitted case of the parties is that one Kannusamy Padayachi had three sons by name Natesan, Thambusamy and Rangasamy and the plaintiff is the daughter of Rengasamy. The children of Thambusamy are defendants 1 to 5. The only contesting defendant is 5th defendant(now after amendment 10th defendant). 3. According to the plaintiff, Kannusamy Padayachi was the grand father of the plaintiff and the defendants. According to the plaintiff, Kannusamy Padayachi had executed a Will dated 14.10.1942 https://hcservices.ecourts.gov.in/hcservices/ in favour of her father Rengasamy Padayachi and after the execution of the said Will Kannusamy Padayachi died during 1944 and the original Will was produced in another suit in O.S.No.341 of 1993 on the file of the Court of Principal District Munsif, Karaikal. Under the said Will dated 14.10.1942, the plaintiff would claim that her father became entitled to all the properties of Kannusamy Padayachi. It is the further case of the plaintiff that her uncle Natesan died issueless and that her father Rengasamy Padayachi also died in the year 1979 at Singapore leaving her widow Mariammal and only daughter, the plaintiff. According to the plaintiff, she and her mother have inherited the estate of Rengasamy Padayachi. After his death,the mother of the plaintiff also died during 1993. Both the plaintiff and the defendants are dwelling in the plaint schedule house, after the death of her mother Mariammal, the plaintiff was isolated,insulted and humiliated. The plaintiff was married to one Natarajan who is a teacher by profession. Due to some compelling necessity, the plaintiff was residing in the plaint schedule house as the sole representative of her clan. During the year 1994, the defendants produced a registration copy of a sale deed dated 23.7.1956 purporting to be a sale of a portion of the suit property by Rengasamy Padayachi in favour of the father of the defendants viz., Thambusamy Padayachi. As per the description in the said sale deed, the western half of the brick built tiled house and eastern half of Valaikollai were sold under the sale deed. The recital in the sale deed reads that Rengasamy Padayachi became the owner of entire plaint schedule property through the sale deed dated 14.10.1942 said to have been executed by Kannusamy Padayachi in favour of Rengasamy Padayachi. There is also boundary description for the property sold under Ex A2 sale deed. But the present boundaries for the property sold under Ex A2 are different. The plaintiff reliably learns that the defendants have paid property tax for the property sold in favour of their father under the sale deed dated 23.7.1956. But the fruits in the Vallakollai were being enjoyed by the plaintiff and the defendants. The defendants filed a suit in O.S.No.341 of 1993 for injunction before the District Munsif, Karaikal alleging that the plaintiff is taking steps to forcibly evict the defendants from the suit property. But the plaintiff herein did not contest the said suit. The filing of the suit itself will indicate that the plaintiff cannot reside in the suit house any more. Even though, the properties sold under sale deed dated 23.7.1956 were shown to be on the west, actually there was no demarcation for the said property of land with specific measurements. The enjoyment is overlapping. The possession is not exclusive. Hence, actual ½ of the property is to be partitioned. Once the partition is effected then it will be possible for the plaintiff to demarcate her property to that of the property sold to the defendants. The defendants are legal representatives of Thambusamy Padayachi. Hence they are entitled for the distribution of share of Thambusamy Padayachi. Hence the suit for partition of plaintiff's ½ share in the plaint "A" schedule property and also in the plaint "B"schedule property. 4. Defendants 1 to 4 remained exparte. https://hcservices.ecourts.gov.in/hcservices/ 5. In the written statement of Mahalingam(D10) adopted by third defendant the 1oth defendant would contend that the averments in the plaint that the plaintiff's father became the absolute owner of plaint"A" and "B" schedule properties is denied. The house was very old one and it was a brick tiled house constructed by Thambusamy out of his own income during his life time. The defendants' father Thambusamy was exclusively in possession and enjoyment of both "A' and "B" schedule properties and he had paid the house tax and land tax and patta stands in the name of Thambusamy Padayachi. He was in open, continuous possession without any interruption and the reason is Rengasamy who is the son of Kannusamy Padayachi was all along abroad and he used to visit his wife Mariammal at Keezhakasakudi. He was no way in connection with the suit properties. He never visited the suit house and Vazakollai at any point of time. Rengasamy died at Singapore whereas his wife Mariammal died at Keelakasakudi in her house. After the marriage of the plaintiff, out of sympathy , a room in the back portion was given to her and she used to reside along with her husband Natarajan who has given troubles often to the fifth defendant and his family members and as a result, she had left the house of her own accord in the month of May 1994. Hence the plaintiff is not in possession of the suit property on the date of filing of the suit. No suit notice was also issued by the plaintiff to the defendants. The fifth defendant is not aware of the Will which was executed on 14.10.1942 said to have been executed by the grand father Kannusamy Padayachi in favour of the father of the plaintiff Rengasamy Padayachi . The Will was not acted upon and the same is invalid. The plaintiff is not aware of the fact that her father Rengasamy Padayachi had executed a sale deed in favour of Thambusamy Padayachi in respect of western half of"A" schedule property and eastern half of "B" schedule property of Thambusamy Padayachi. The said sale deed is dated 26.9.1956. So far the plaintiff has not taken any steps for partitioning the said property by metes and bounds. Rengasamy Padayachi had allowed his brother Thambusamy Padayachi and his son to occupy the entire" A" schedule and "B" schedule properties and as a result the defendants are in possession adverse to the interest of the plaintiff's father and the plaintiff. During the life time, the plaintiff's father Rengaswamy Padayachi has not taken any steps to get possession of the suit properties from the defendants. The defendant and his father have effected major repairs in "A" schedule property and the third defendant had electrified the entire house in the year 1975 from out of his own income. In the year 1955, the main walls of the house have been damaged and her father Thambusamy Padayachi have effected periodical repairs and in "B"schedule property , the fifth defendant had erected fences on all the sides and he had planted two coconut saplings and three mango saplings and one bamboo bush and he is in possession and enjoyment of usufruct of the those trees. Kannusamy Padayachi did not acquire any property of his own and the alleged Will dated 14.10.1942 is not a genuine one . Both "A" and "B" schedule properties are not liable for partition,since all the defendants have perfected title over the suit property by way of adverse https://hcservices.ecourts.gov.in/hcservices/ possession. The suit is time barred. The Court fee paid on the plaint is not correct. Hence the suit is liable to be dismissed. 6. Mahalingam,(10th defendant) in his additional written statement would contend that the suit for partition of "A" and "B" schedule properties by metes and bounds against all the defendants are not sustainable either in law or on facts. Instead of filing the suit for recovery of the suit property from the defendant, the plaintiff had cleverly filed the above suit for partition. To avoid paying huge amount towards Court fees, the plaintiff has filed this suit for partition as if, the schedule properties are joint and undivided. Kannusamy Padayachi , the grand father of 5th defendant and the plaintiff had executed a Will dated 14.10.1942, bequeathing the entire "A" schedule and"B" schedule properties in favour of his younger son Rengasamy Padayachi. After the death of Kannusamy Padayachi, Rengasamy Padayachi had become the absolute owner of both "A' schedule and "B" schedule properties situate at Thiruvettakudi Village. The plaintiff's father Rengaswamy had sold away western half of "A" schedule house property and the eastern half of "B"schedule Vazhakkollai by means of notarial sale deed dated 26.7.1956 to Thambusamy Padayachi who is the elder brother of Rengasamy Padayachi and the father of the defendants. Since the said Rengasamy Padayachi had specifically sold the western half in "A" schedule and eastern half in"B" schedule , the fifth defendant is already in separate possession and enjoyment of the property sold under the sale deed dated 26.7.1956 and hence the suit for partition in respect of a property already partitioned is not maintainable. The plaintiff has become owner of eastern half of "A" schedule properties and western half of "B" schedule properties only as such the suit for partition is not maintainable and hence the same is liable to be dismissed with costs of fifth defendant. 7. On the above pleadings, the learned trial Judge has framed as many as six issues and one additional issue for trial. The plaintiff has examined himself as P.W.1 and exhibited Exs A1 and A2. On the side of the defendants, 10th defendant Mahalingam was examined as D.W.1 and Exs B1 to B16 were marked. The learned trial Judge, after weighing the evidence both oral and documentary on record, and also after due deliberations on the submissions made by the learned counsels on both sides, the learned trial Judge has held that the plaintiff is entitled to a preliminary decree for partition of her ½ share in the suit property and accordingly decreed the suit . Aggrieved by the findings of the learned trial Judge, the 10th defendant Mahalingam had preferred this appeal. 8. Now the points for determination in this appeal are as follows: i) The alleged Will dated 14.10.1942 said to have been executed by Kannusamy Padayachi in favour of his son Rengaswamy Padayachi is valid under law? 2) Whether the sale deed dated 26.7.1956 said to have been executed by Rengaswamy Padayachi with regard to Plaint"A" schedule property in https://hcservices.ecourts.gov.in/hcservices/ favour of Thambusamy Padayachi, the father of the defendants is binding and whether the suit for partition is maintainable in lieu of the specific demarcation mentioned under the said sale deed dated 26.7.1956(Ex A2 = Ex B1)? 3) Whether the decree and Judgment in O.S.No.15 of 1995 on the file of the Court of Additional District Judge, Pondicherry at Karaikal is liable to be set aside for the reasons stated in the memorandum of appeal? 9. Point No.1: A Will is to be proved as per Section 68 of the Indian Evidence Act 1872 and also under Section 66 of the Indian Succession Act 1925. Section 68 of the Indian Evidence Act 1872 reads of follows:- "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution of the person by whom it purports to have been executed is specifically denied" The plaintiff has not filed the original Will before the trial Court. Ex A1 is only a photostat copy of the alleged Will dated 14.10.1942. According to P.W.1, the original Will dated 14.10.1942 is in the file of A.S.No.11 of 1995 of the same Court. No steps was taken by the plaintiff to send for the original Will from the file of A.S.No.11 of 1995 and no steps was taken to examine at least one of the attestators to Ex A1 Will to prove the same. Under such circumstances, the marking of Ex A1 Will by the trial Court itself is not proper. So I hold on point No.1 that the alleged Will dated 14.10.1942 said to have been executed by Kannusamy Padayachi in favour of Rengasamy Padayachi was not proved in accordance with law. Point No 1 is answered accordingly. 10. Point No 2: It is the case of the plaintiff that the plaint schedule properties were bequeathed by Kannusamy Padayachi in favour of Rengaswamy Padayacthi, the father of the plaintiff, who in turn, had sold ½ in plaint "A" schedule property and ½ in plaint "B" schedule property to Thambusamy, the father of the defendants under a sale deed dated 26.7.1956. The said sale deed was exhibited as Ex A2(Ex B1). Even though the contesting defendant D10 in his written statement had raised a defence that the defendants have prescribed title to the plaint "A" and "B" schedule properties by way of adverse https://hcservices.ecourts.gov.in/hcservices/ possession,in the additional written statement has given a go by to the defence taken in the earlier written statement has taken a new defence that the suit for partition is not maintainable,since the properties described under plaint"A" schedule and "B" schedule properties have been demarcated, which will go to show that the properties have already been partitioned and enjoyed by the respective parties with a definite boundaries. According to D.W.1, he and his father Thambusamy have carried out repairs in the plaint "A" schedule property and that he has put up fence in the plaint "B" schedule property and has also planted mango saplings and other trees in the plaint"B" schedule property and that the defendants are in possession and enjoyment of the plaint "A" and "B" schedule properties from the year 1956 ie. from the date of the execution of Ex A2(Ex B1) sale deed by Rengasamy Padayachi in favour of Thambusamy. But in the cross examination, D.W.1 would admit that before plaintiff and her mother(Widow of Rengasamy Padayachi) Mariammal was residing in the plaint "A" schedule property. Absolutely there was no material placed before the trial Court to show that the defendants have prescribed title in respect of plaint"A" and "B" schedule properties by way of long , continuous possession adverse to the interest of the plaintiff over the statutory period. A cursory glance of Ex A1 would go to show that apart from plaint "A" and"B" schedule properties, Kannusamy Padayachi, the grand father of both plaintiff and the defendants had other properties also. There is no material placed before the trial Court to show that apart from the plaint"A" and "B" schedule properties, Kannusamy Padayachi had disposed of other properties mentioned in Ex A1 during his life time. Under such circumstances, the suit filed for partition in respect of plaint "A" and "B" schedule properties alone is also not maintainable as correctly contended by the learned counsel appearing for the appellant because the suit is hit by the principles of " partial partition". Once the Will dated 14.10.1942 goes as the same was not proved in accordance with law ,the claim of the plaintiff under Ex A2 sale deed in respect of remaining portion under Ex A2 will not also be sustainable because according to the plaintiff, her father Rengasamy Padayachi got Ex A2 property only under Ex A1 Will which was not proved in accordance with law. Under such circumstances, I hold on point No.2 that the suit for partition on the basis of Ex A2 sale deed is not maintainable. Point No.2 is answered accordingly. 11. Point No.3: In view of my discussion and finding in the earlier paragraphs, I hold on Point No.3 that the decree and Judgment in O.S.No.15 of 1995 on the file of Court of Additional District Judge, Pondicherry at Karaikal is liable to be set aside for the reasons stated in the memorandum of appeal. Point No 3 is answered accordingly. 12. In fine, this appeal is allowed and the decree and Judgment in O.S.No.15 of 1995 on the file of the Court of Additional District Judge, Pondicherry at Karaikal is hereby set aside and the suit in O.S.No.15 of 1995 is dismissed. The remedy https://hcservices.ecourts.gov.in/hcservices/ open to the plaintiff is to file a separate suit for partition after scheduling the entire property as stated in Ex A1 Will belonging to Kannusamy Padayachi for partition. The parties are directed to bear their own costs. Sd/- Deputy. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Additional District Judge,Pondicherry at Karaikal 2. The Record Keeper, V.R.Section, High Court, Madras 1 cc to M/s. S. James, Sr. 41351 A.S.NO.492 of 1998 KSK (CO) kk 14/8 https://hcservices.ecourts.gov.in/hcservices/