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2013 Supreme(Mad) 1764
High Court of Judicature at Madras
G. RAJASURIA, J.
Mohanavathy
Versus
Punyakodi
S.A.No. 1207 of 1999
Decided On : 29-04-2013
Advocate Appeared:
For the Appellant:M.S. Subramanian, Advocate.
The main legal point established in the judgment is the requirement for evidence-based findings on the genuineness of a will and the misconceived real question in controversy.
Headnote:
Will - Property Dispute - Indian Evidence Act - Sections 68, 69, 73 - Adverse Possession - (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another] - 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]
Fact of the Case:
The case involved a property dispute between the wife and daughter of the second defendant and the first defendant. The first plaintiff, the wife, had been in possession of the property granted to her by the Government, but the defendants claimed adverse possession and refused to hand over the property.
Finding of the Court:
The court found that the judgments of the lower courts regarding the genuineness of the will were not based on evidence. It also held that the courts below misconceived the real question in controversy and wrongly held that the will was not proved. The court decreed the suit, declaring the title of the second plaintiff over the property and ordering the defendants to hand over vacant possession to the second plaintiff.
Issues: The issues involved the genuineness of the will, the misconceived real question in controversy, and the proof of the will.
Ratio Decidendi: The court found that the judgments of the lower courts regarding the genuineness of the will were not based on evidence. It also held that the courts below misconceived the real question in controversy and wrongly held that the will was not proved.
Final Decision: The court decreed the suit, declaring the title of the second plaintiff over the property and ordering the defendants to hand over vacant possession to the second plaintiff.
1. This Second appeal is focussed animadverting upon the judgment and decree dated 02.11.1998 passed in A.S.No.83 of 1997 by the Sub Court, Tiruvallur, thereby confirming the judgment and decree dated 14.10.1996 in O.S.No.150 of 1986 passed by the District Munsif Court, Tiruvallur.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Despite printing the name of the respondent, there is no representation on his behalf.
4. In a few broad strokes, the picture that conjures up in my mind from the averments as found set out in the plaint, could summarily and succinctly be set out thus:
(a) The first plaintiff is the wife of the second defendant and mother of the first defendant and the second plaintiff is the daughter of the first plaintiff. They belong to scheduled caste community. The Government of Tamil Nadu through its Collector, Chengalput, conferred house site pattas to each of the defendants as well as the first plaintiff in respect of the property described in the schedule of the plaint as under:
"Schedule of Property
House site in No.82, Punnapattu village, Tiruvallur Sub District and Tiruvallur Taluk, Chengalpattu District.
Plot No.6-A measuring about three cents in S.No.71/2, measuring east to west 97' links and north to south 35 links.
Boundaries:
Bounded on the north by Plot No.6-C on the east by S.No.70, on the south by Plot No.6-B and on the west by Plot No.18."
Ever since the grant of patta, the first plaintiff had been in possession and enjoyment of the said area by putting up a hut thereon. However, the defendants started giving her trouble which made her to leave that hut and start staying with her daughter, the second plaintiff in Ayalur Harijan colony. When the first plaintiff wanted back the suit property, the defendants refused to hand over the same. The first plaintiff died on 21.07.1996 pending litigation. However, even before that, she executed a Will in favour of her daughter bequeathing the suit property in her favour.
(b) Per contra, the defendants filed the written statement challenging and impugning the averments/allegations in the plaint. The first plaintiff had no right over the suit property and she was also not living in that suit property under the alleged patta issued in her favour. The defendants have been in possession and enjoyment of the suit property for more than 12 years' and they acquired title also over the suit property. Accordingly, they prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues.
6. Up went the trial, during which the second plaintiff/Mohanavathy examined himself as P.W.1 along with P.Ws.2 to 4 and marked Exs.A1 to A3; and the first defendant/Punniyakoti examined himself as D.W.1 along with D.W.2 and Exs.B1 to B13 were marked.
7. Ultimately the trial Court dismissed the suit, as against which the appeal was filed for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial Court in dismissing the suit.
8. Challenging and impugning the judgments and decrees of both the fora below, this Second Appeal has been focussed on various grounds and also suggesting various substantial questions of law.
9. My learned Predecessor framed the following substantial questions of law.
"(1) Whether the findings of the courts below regarding the genuineness of the will are not based on evidence on record and an error of jurisdiction to compare the signatures in the vakalath and the will?
(2) Whether the judgment of the courts below are vitiated as they have misconceived the real question they had to try?
(3) Even if the will is held not proved to be genuine, is not the second plaintiff entitled to a share and a declaration granted to that extent?
(extracted as such)
10. The learned counsel for the plaintiffs would pyramid his argument, which could succinctly and precisely be set out thus:
(a) The first plaintiff during her life time got p
