Leelavathi v. Ganesan

JUDGMENT The plaintiffs before the Courts below are the appellants before this Court, challenging the judgment and decree passed against them.

¶2The facts which have culminated to the filing of the above second appeal are hereinbelow set out and the parties are referred to as before the Trial Court. FACTS OF THE CASE:

2.1. The above suit was filed by the plaintiffs for partition of their half share in the suit schedule properties. It is their contention that the suit properties belonged to one Veerasamy, son of Perumal, and it was his ancestral properties. Some other properties had been purchased by the said Veerasamy by selling the ancestral properties and these properties have been purchased in the name of the said Veerasamy and the second defendant. Veerasamy had two sons viz., Mukesh Ayodhi and Ganesan who is the first defendant. Mukesh Ayodhi is the father of the first plaintiff and the husband of the second plaintiff. He died on 22.03.2000 leaving behind him the surviving plaintiffs as his legal representatives.

2.2. The plaintiffs would submit that apart from them, there are no other legal representatives for Mukesh Ayodhi. The mother of Mukesh Ayodhi, one Amaravathi died 30 years ago. After the death of Mukesh Ayodhi, with a view of grabbing the property, the first defendant had executed a settlement deed dated 26.03.2002 in favour of the second defendant. In the recitals of the said settlement deed, it has been stated that the first defendant and his father Veerasamy were enjoying the property. Veerasamy died intestate in the year 2004.

2.3. The plaintiffs would submit that the suit properties were being enjoyed as joint family properties and they are entitled to 1/12th share in the suit properties being the legal representatives of the other son of the deceased Veerasamy viz., Mukesh Ayodhi.

2.4. The defendants had filed a written statement inter alia contending that the first defendant had gone to Mumbai in search of job and he had worked in various capacities at Mumbai. Mukesh Ayodhi had only studied upto 8th standard and had refused to go to school and was leading a wayward life. Thereafter, the first defendant had asked the said Mukesh Ayodhi to come to Bombay where he joined the first defendant and worked as a vegetable vendor, coolie, assistant in electrical shop, etc. The said Mukesh Ayodhi had also got into bad company and was involved in petty thefts, Kandhu vatti business, etc., and he had also got arrested and had served term in jail. Thereafter, the first defendant asked him to return to the native village. He had returned to the native village and was in illegal relationship with one Devagi. She had taken him outside the village and lived with him for three days.

2.5. The first defendant would submit that it is at this juncture, when the second plaintiff, who was of a questionable character, had come come in contact with his brother Mukesh Ayodhi. It is his contention that she was already married and was having a child who is the first plaintiff. In the year 2000, Mukesh Ayodhi returned to the Sembalakurichi Village along with the plaintiffs and was in a live-in relationship with the second plaintiff. The second plaintiff is not the legally wedded wife of Mukesh Ayodhi and the first plaintiff is not his child. The said Mukesh Ayodhi, once again, left for Mumbai leaving his earnings with the second plaintiff. The income from the agricultural land was also taken by the second plaintiff. On returning from Mumbai, the said Mukesh Ayodhi asked the second plaintiff to give some money which she refused and therefore, he, on account of her threats, had committed suicide. Therefore, the defendants would submit that neither the second plaintiff nor the first plaintiff had any right, title or interest to the suit properties. The plaintiffs were not the legal representatives of Mukesh Ayodhi and therefore, the defendants sought for the dismissal of the suit. TRIAL COURT:

¶3The Trial Court had framed the following issues. "1.Whether the plaintiff is entitled for preliminary decree for partition as prayed for?

2.Whether the plaintiff is entitled for permanent injunction as prayed for?

3.To what other reliefs the plaintiff is entitled to?"

¶4The second plaintiff had examined herself as P.W.1 and marked Exs.A1 to A7. The first plaintiff had examined herself as P.W.2 and had examined two other witnesses and marked Ex.A8 to A22. The defendants had examined the first defendant as D.W.1 and marked Exs.B2 to B5 through the first defendant. The first exhibit on the side of the defendants is the passport of the second plaintiff and it was marked during the cross-examination of P.W.1. The second defendant had examined himself as D.W.2 and marked two other documents.

¶5The learned Judge had come to the conclusion that the plaintiffs were not entitled to the relief claimed by them as the second plaintiff was not the wife of Mukesh Ayodhi and neither was the first plaintiff, his daughter. The Court had noticed several discrepancies in the evidence of P.W.1. Ultimately, the learned Judge dismissed the suit. LOWER APPELLATE COURT:

¶6Challenging the same, the plaintiffs had filed an appeal in A.S.No.9 of 2022 on the file of the III Additional District Court, Virudhachalam.

¶7The Lower Appellate Court had also confirmed the judgment and decree of the Trial Court and therefore, the plaintiffs are before this Court.

¶8Heard Mrs.R.T.Shyamala, learned counsel for Mr.S.P.Harikrishnan, learned counsel appearing on behalf of the appellants. DISCUSSION:

¶9The plaintiffs have come to Court seeking partition on the ground that the first plaintiff was the daughter and the second plaintiff is the wife of one Mukesh Ayodhi who was the son of the Veerasamy and the brother of the first defendant herein, and they are entitled to an equal half share in the suit properties. The documents which have been marked on the side of the plaintiffs are family card, gas book, PAN card, voter ID, etc. The second plaintiff who claims as the wife of the deceased Mukesh Ayodhi has nowhere given the details of the date of marriage between her and the said Mukesh Ayodhi and also the date on which the first plaintiff was born to them.

¶10That apart, P.W.1 – the second plaintiff had clearly deposed that the first plaintiff had birth certificate. However, the same had not been produced. In response to specific questions, she had stated that she does not know the date on which she and the deceased Mukesh Ayodhi got married, but, would say that it had taken place 30 years ago in a temple. However, there is nothing on record to show her as his wife.

¶11That apart, the first plaintiff, who produced her passport, had failed to submit her Birth Certificate which is the best evidence to prove that she is the daughter of the said Mukesh Ayodhi. She would rely upon the Succession Certificate to prove that she is the daughter of Mukesh Ayodhi. In response to the question regarding her birth and Birth Certificate, P.W.2 – the first plaintiff had deposed as follows: th/rh/M/10 gh!;nghu;l;oy; ehd; gpwe;j Cu; brk;gsf;Fwpr;rp "

vd;W nghlg;gl;Ls;sJ/ ehd; jhf;fy; bra;Js;s Flk;g ml;il. ngd; fhu;L. thf;fhsu; milahs ml;il Mfpaitfs; 2005f;F gpwF bgwg;gl;litfs; vd;W brhd;dhy; rupjhd;/ ehd; Me;jpuh "

khepyj;jpy; Fz;LPu; khtl;lk;. gpoFuy;yh vd;w Cupy; gpwe;njd;/ vd;Dila gpwg;g[ rhd;wpjH; ,Uf;fpwjh vd;why; ,y;iy/ me;j gpwg;g[ rhd;wpjiH jhf;fy; bra;jhy; vd;Dila cz;ikahd mg;gh bgau; bjupe;JtpLk; vd;gjhy; jhd; ehd; mij itj;J bfhz;L jhf;fy; bra;atpy;iy vd;W brhd;dhy; rupay;y/ mnahj;jpf;F ehd; gpwe;jpUe;jhy; ,e;j njjpapy; ,e;j ,lj;jpy; gpwe;njd; vd;W Fwpg;gpl;oUg;ngd; vd;whYk; mjdhy; gpuhjpy; me;j tpgu';fis Fwpg;gpltpy;iy vd;whYk; rupay;y/"

¶12The Court had also taken note of the passport of the second plaintiff which was marked through her as Ex.B1. The name that was found in the plaint document does not reflect in Ex.B1. She has in Ex.B1 declared that she has no children. Except for her, ipse dixit regarding her having married the said Mukesh Ayodhi, there is no other document to prove the same. The description of her residence in Ex.B1 is also different. The plaintiffs have kept away the best evidence viz., Birth Certificate of the first plaintiff. The defendants have also produced Ex.B5 - notes which have been written by Mukesh Ayodhi to his brother which would throw doubts with regard to the legality of his relationship with the second plaintiff. The suit properties being ancestral properties and the first plaintiff having failed to prove that she is the offspring of the said Mukesh Ayodhi, the Courts below have not committed any error in non suiting the plaintiffs. I see no reason to hold otherwise. Accordingly, this second appeals stands dismissed. Consequently, the connected C.M.P. stands closed. No costs.

04.03.2024 Index: Yes/No Speaking order/non-speaking order ssa To

¶1The III Additional District and Sessions Judge, Virudhachalam.

2.The Additional Subordinate Court, Virudhachalam.

3.The Section Officer, V.R.Section, High Court, Madras. P.T.ASHA, J., ssa

and C.M.P.No.4661 of 2024

04.03.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2024 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA and C.M.P.No.4661 of 2024 1.Leelavathi 2.Pravamba @ Pravambal ... Appellants Vs. 1.Ganesan 2.Sanjeevikumar ... Respondents PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside the judgment and decree dated 30.01.2023 in A.S.No.9 of 2022 on the file of the III Additional District and Sessions Court, Virudhachalam, confirming the judgment and decree dated 22.12.2021 in O.S.No.316 of 2014 on the file of the Additional Subordinate Court, Virudhachalam. For appellants : Mrs.R.T.Shyamala for Mr.S.P.Harikrishnan *****