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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.ANAND VENKATESH, J.
R.Nagarajan - Appellants
Vs.
A.Ramasamy Gounder - Respondents
SA.No.34 of 2013
Decided On : 22-02-2022
Indian Evidence Act - Section 68 - Registered Will executed - Suit seeking for relief of partition - Sale agreement - Whether Lower appellate Court is right in holding that suit in absence of prayer for cancellation of sale deed a certified copy of which was produced as Ex.A3 was maintainable - Respondents 1 and 2 / plaintiffs filed a suit seeking for relief of partition and for allotment of 1/4th share in suit property - Case of plaintiffs is that they are brothers of defendants 3 and 4 - Defendant is son of 4th defendant and 2nd defendant is agreement holder from 1st defendant - According to plaintiffs suit properties belonged to one - She is none other than sister of plaintiffs and defendants - Executed a Will bequeathing suit properties to plaintiffs and Defendants 3 and 4 to be enjoyed by them equally after her life time – document was executed by a person who had a right over the property. However, the plaintiffs are questioning the circumstances under which this document was executed by Athayammal four days prior to her death. Under such circumstances, this document only becomes voidable and such a voidable transaction requires to be set aside, if a party wants to avoid such a document. In the absence of the same, that document can never be disregarded. Para 16.
Finding of the Court:
Will executed by and which was marked as EX.A1 gets automatically cancelled by virtue of sale deed executed by marked as Ex.A4 - Will can always be cancelled either expressly or through conduct of party during life time of executor of Will - Sale deed executed by in favor of 1st defendant automatically canceled Will that was executed earlier - In view of above discussion Lower Appellate Court was not right in allowing suit in absence of a prayer for cancellation of Sale deed - Substantial question of law is answered accordingly - Insofar a substantial question of law is concerned there was no dispute with regard to execution of sale deed in favor of 1st defendant - Hence non production of original document does not in any way affect or take away rights which flowed in favor of 1st defendant in suit property - Admittedly certified copy was available before Court and plaintiffs did not dispute this document.
Result: Second Appeal is Allowed.
JUDGMENT :
The defendants 5 and 6 are the appellants in this second appeal.
2. The respondents 1 and 2 / plaintiffs filed a suit seeking for the relief of partition and for allotment of 1/4th share in the suit property.
3. The case of the plaintiffs is that they are the brothers of the defendants 3 and 4. The 1st defendant is the son of the 4th defendant and the 2nd defendant is the agreement holder from the 1st defendant. According to the plaintiffs, the suit properties belonged to one Athayammal. She is none other than the sister of the plaintiffs and the defendants 3 and 4. The said Athayammal executed a Will dated 10.09.1971 bequeathing the suit properties to the plaintiffs and Defendants 3 and 4 to be enjoyed by them equally after her life time.
4. The further case of the plaintiffs is that the 1st defendant in a clandestine manner managed to get a Sale deed executed in his favour by Athayammal on 26.07.2006. According to the plaintiffs, the sale deed was obtained under suspicious circumstances and four days prior to the death of the said Athayammal. Thereafter, the 1st defendant entered into a Sale agreement with the 2nd defendant.
5. The plaintiffs took a stand that the sale deed is fraudulent and there was already a registered Will executed by the said Athayammal and based on the said Will, the plaintiffs sought for the relief of partition and for allotment of 1/4th share to each of the plaintiffs. 6. The 1st defendant took a stand that on the execution of the sale deed in his favour by Athayammal, the Will no longer survives and hence, the plaintiff is not entitled for any share in the suit property. The 1st defendant also took a stand that the sale deed executed in his favour by Athayammal was not put to challenge at any point of time and hence, sought for the dismissal of the suit.
7. The Trial Court on appreciation of the oral and documentary evidence, came to a conclusion that the Will executed by Athayammal automatically seized to exist on the execution of the sale deed in favour of the 1st defendant and since this Sale deed has not been challenged, the relief sought for by the plaintiff cannot be granted and accordingly, the suit came to be dismissed.
8. The plaintiff filed an appeal before the Principal District Judge, Namakkal, and the Lower Appellate Court by a judgment and decree dated 24.11.2012 allowed the appeal and set aside the judgment and decree of the Trial Court. Thereby, the suit was decreed as prayed for. Aggrieved by the same, the present second appeal has been filed before this Court.
9. This Court framed the following substantial questions of law :-
2. Whether the Lower Appellate Court is right in non-suiting the appellants on the ground of nonproduction of the original sale deed dated 26.07.2006, when the execution of the same had not been specifically denied.
3. Whether the Lower appellate Court has committed an error in holding that the complaince with the requirements stipulated in Section 68 of the Indian Evidence Act was not necessary for the proof of Ex.A1 Will?
10. Heard the learned counsel for the Appellants and Respondents and this Court also carefully considered the materials available on record and the findings rendered by the Lower Appellate Court.
11. In the present case, the Trial Court took pains to analyze the entire evidence in order to come to a conclusion that the plaintiffs will not be entitled to rely upon the Will by virtue of the execution of the Sale Deed by Athayammal on 26.07.2006 in favour of the 1st defendant. The Trial Court also found that the suit itself cannot be maintained without challenging the sale deed executed in favour of the 1st defendant. The trial Court also independently assessed the genuineness of the Will and found that the plaintiffs failed to pro
The burden of proving the validity of a Settlement Deed lies with the beneficiary, particularly when it deprives other legal heirs of their shares, and evidence must substantiate voluntary execution.
Co-owner not party to sale deed need not cancel it to claim partition of undivided share in joint family property.
Failure to challenge a sale deed standing in the name of a defendant may render a suit claim for partition not maintainable.
A registered Sale Deed carries a presumption of validity, and the burden lies on the challengers to prove it invalid through credible evidence.
The court emphasized that evidence cannot be adduced contrary to the arguments in a written document and held that the relief of partition cannot be granted in the face of a document registered lawfu....
The Court can entertain a second appeal only if substantial questions of law are involved, and the Lower Appellate Court must assign proper reasons while rendering findings as mandated under the Civi....
A suit for annulment of a sale deed is barred by limitation if not filed within three years, and claims of fraud must be substantiated with evidence.
Legal necessity must be proven to invalidate a sale deed executed for minors' benefit, with the burden of proof on defendants to contest authenticity.
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