Court holds that plaintiffs failed to establish joint possession, could not prove the father’s Will under Section 68 of the Evidence Act, and omitted essential parties in the suit for partition.
The Madras High Court has allowed a second appeal filed by a brother and set aside the concurrent findings of the trial court and first appellate court in a family partition dispute, holding that the suit was not maintainable in its present form.
Justice Dr. G. Jayachandran delivered the judgment in the case concerning a dispute between a brother and his two sisters over ancestral and family properties left behind by their parents, Late Sundarathachi and Late Murugaiah Pillai.
According to the plaintiffs, the three siblings were entitled to equal shares in the properties left by their parents. They claimed that their mother died intestate in 1991 and their father died intestate in 2009, leaving behind properties in two villages. They sought partition and separate possession of 1/3rd share each.
The defendant, however, denied the claim and relied on two Wills — one executed by the maternal grandmother Subbammal in 1953 and another by Murugaiah Pillai in 2005. He also argued that several properties included in the plaint were either not owned by the parents or had already been sold during their lifetime. He further contended that the plaintiffs had been ousted from possession long ago and had failed to implead necessary parties, including beneficiaries under the Will.
The trial court had initially granted a preliminary decree in favour of the sisters after excluding certain properties found to have been sold or purchased in the names of the defendant’s children. The first appellate court affirmed that decision. However, the High Court found serious errors in both factual appreciation and legal reasoning.
On the issue of the mother’s side properties, the Court examined the Will of Subbammal and held that its intention was clear: the property was meant to devolve upon her daughter Sundarathachi and thereafter upon Sundarathachi’s children, whether male or female. Even so, the Court found that the plaintiffs had not been in joint possession or enjoyment of the properties for decades. The first plaintiff herself admitted in cross-examination that after her marriage in 1971, she had not been in joint enjoyment of the properties and had no documentary proof of joint possession. The Court concluded that the plaintiffs were ousted from the properties and had lost the right to seek partition in respect of the ‘A’ schedule properties.
The Court also noted that some of the documents relied on by the plaintiffs, such as Chitta and Adangal, stood in the name of a deceased person and were therefore of little evidentiary value.
On the father’s Will, the Court held that the document, marked as Ex.B17, had not been properly proved as required under Section 68 of the Indian Evidence Act, 1872. The attesting witnesses had not clearly stated that they saw the testator sign the Will. This created a lacuna in proving execution of the Will.
However, the Court went on to observe that the suit was still defective because the plaintiffs had not impleaded the beneficiaries under the father’s Will, including the defendant’s children, who had interests in the ‘B’ schedule properties. Since the partition suit involved their rights as well, their absence rendered the suit bad in law.
Relying on settled principles relating to ouster among co-owners and the requirement of proving a Will through attesting witnesses, the High Court held that the plaintiffs’ claim could not survive. It concluded that the suit was barred by ouster in relation to the ‘A’ schedule properties and was non-maintainable for want of necessary parties in relation to the ‘B’ schedule properties.
Accordingly, the Second Appeal was allowed, and the judgments of the courts below were set aside. The Court made no order as to costs, noting the family relationship between the parties.
Bottom Line :
Partition suit - Plaintiffs ousted due to lack of joint possession and non-impleading of necessary parties - Failure to prove genuineness of the Will under Section 68 of the Indian Evidence Act - Suit dismissed for factual inaccuracies and non-maintainability.
Statutory provision(s): Section 63 of the Indian Succession Act, 1925, Section 68 of the Indian Evidence Act, 1872
M. Pandiarajan v. Andal, (Madras) : Law Finder Doc id # 2979414
