In a second appeal, the High Court of Judicature at Madras dismissed the appeal and upheld the First Appellate Court's order setting aside the trial court's decree regarding joint family property and settlement deeds, rejecting claims of adverse inference against non-testifying defendants.
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S.A.No.821 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.02.2024
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.No.821 of 2017
1.Jayanthi 2.Vasanthi
3.Santhi 4.Chitra
5.Vimala
...Appellants
Vs.
1.Tmt.Selvi 2.S.Saravanan 3.Minor Gomathy Minor by next friend mother/R1
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the judgment and decree passed in A.S. No.65 of 2013 on the file of the II Additional District Judge, Salem, dated 15.04.2014 reversing the judgment and decree passed in O.S. No.115 of 2009 on the file of the Subordinate Judge, Mettur, dated 26.06.2013.
For Appellants : Mr.R.Babu
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For Respondents : Mr.P.Jagadeesan for R1 to R3
JUDGMENT
The unsuccessful plaintiffs are the appellants before me. The plaintiffs filed a suit in O.S. No.115 of 2009 seeking the relief of declaration that the suit property was a Hindu undivided Joint Family Property; to declare that the settlement deed dated 25.06.1993 executed by the first defendant in favour of the third defendant is null and void; for a permanent injunction to restrain defendants 1 to 3 from alienating or encumbering the suit property; and for a preliminary decree declaring the plaintiffs' 1/7th share in the suit property.
2 filed a written statement denying the plaintiffs' claims stating that the suit property was settled on the first and second defendants by registered settlement deeds dated 25.06.1993 and 12.03.2004 executed by the first defendant and that the plaintiffs were given 10 sovereigns of gold jewels each, apart from house hold Articles as sridhana, even 2/10
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during the lifetime of the 1st wife of the 1st defendant and therefore, they were not entitled to any of the reliefs as prayed for.
evidence adduced by the parties, decreed the suit and granted a preliminary decree for partition, by declaring that the settlement deeds are null and void.
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him were valid and moreover, the plaintiffs had failed to establish that the suit property was purchased out of the sale proceeds of the jewels of their mother viz., first wife of the first defendant.
Appellate Court, the plaintiffs have filed the present Second Appeal. This Court, while admitting the above Second Appeal, framed the following substantial questions of law:-
" a. Whether the first appellate Court was right in overturning the adverse inference drawn by the trial Court against the 2nd and 3rd defendants for not getting into the witness box?
b. Whether purchase of the land by 1st defendant can be termed as self acquired property in the light of oral and documentary evidence available on record.
c. Is the judgment of the first appellate Court is correct in not holding that the settlement deeds in favour of the defendants 2 and 3 are not valid and acted upon when the defendants 2 and 3 have not given evidence in this case and then they have not produced any revenue records or any other credible to prove that they are in
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separate possession of the portions of the suit property settled upon them?"
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Appellate Court being set aside and judgment and decree of the trial Court being restored.
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adverse inference being drawn against defendants 2 and 3, I am unable to accept the contentions of the appellants for the simple reason that the execution of the settlement deeds have not been denied by the plaintiffs at any point of time. If the execution of the settlement deeds had been denied, then probably the 2nd and 3rd defendants not entering the witness box would have had some bearing. However, when the second and third defendants were not required to prove the settlement deed in their favour, no adverse inference can be drawn from the mere fact that they did not enter the witness box.
14.As regards the second substantial question of law regarding the self acquisition of the property by the first defendant, having already found that there is no illegality or perversity in the findings of the First Appellate Court, I am unable to agree with the said contention of the learned counsel for the appellants that the property has to be treated as joint family property.
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16.In this regard, I do not find it is necessary for the defendants 2 to 3 to have produced revenue records or other documents to show that they were in separate possession of the portions settled upon them. Hence, it is not the case of the plaintiffs themselves the settlement deed were not acted upon. In the light of the same, I do not find the
P.B.BALAJI, J,
rkp
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substantial questions of law to be answered in favour of the appellants and consequently, the Second Appeal is dismissed. There shall be no order as to costs.
06.02.2024
Index : Yes/No Internet : Yes/No rkp To
1.The II Additional District Judge, Salem 2.The Subordinate Judge, Mettur,
S.A.No.821 of 2017
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1 provisions across 1 enactments
Jayanthi
Vasanthi
Santhi
Chitra
Vimala
Tmt.Selvi
P.B. Balaji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
