A. TAMILSELVI Vs. CHINNAMMAL

JUDGEMENT

(1.) This is an appeal filed by the plaintiffs against the judgment in O.S.No.65 of 2015 on the file of the learned First Additional District Judge, Coimbatore.

(2.) Heard Mr.S.B.Viswanathan, learned Counsel for the appellants, Ms.A.Dhanwanthi, learned Counsel for the first respondent, Mr.K.Govi Ganesan, learned Counsel for the second respondent and Ms.R.Rajashama Gayathri, learned Counsel for the Respondents 3, 5 and 6.

(3.) Learned Counsel for the appellants submitted that the suit was filed by the plaintiffs/appellants for partition. The learned Counsels for the appellants assailed the judgment of the learned First Additional District Judge, Coimbatore, stating that the trial Court committed error on the face of record in respect of settlement deed under Ex.A-4 given to Mrs.Lakshmiammal by her husband Late.Chinnia Gounder in lieu of maintenance, as a Will. The trial Court had drawn adverse inference against the appellants for nonproduction of Death Certificate of Late Mrs.Lakshmiammal especially when the defendants 3 to 6 had admitted the factum of the year of death of Late Mrs.Lakshmiammal in the year 1990. The findings of the learned trial Judge in paragraph 12 are based on the surmises and conjectures. The learned trial Judge committed a grave error by giving a finding that Mrs.Lakshmiammal had acquired only restricted estate by virtue of settlement deed dtd. 2/11/1962. It has misconceived that the case of the plaintiffs falls under Sec. 14(2) of the Hindu Succession Act whereas it actually comes within the purview of Sec. 14(1) of the Hindu Succession Act. The learned trial Judge had committed a grave error by failing to differentiate between Sec. 14(2) and Sec. 14(1) of the Hindu Succession Act. When the properties given in lieu of maintenance which is a preexisting right and a female is in possession of the same, then in such cases, restricted rights ripened into an absolute right. It also failed to consider that Sec. 14(2) of the Hindu Succession Act does not contain restrictions imposed under explanation appended to Sec. 14(1) of the Act. In other words, there is omission of words in lieu of maintenance under Sec. 14(2) of the Act. The trial Court failed to apply the principles contained in Sec. 21 of the Hindu Succession Act. The finding of the trial Court in paragraph 13 of the judgment wrongly applying various judgments cited on behalf of the defendants and erroneously held that the settlement deed dtd. 2/12/1962 under Ex.A-4 in lieu of maintenance should be construed only as a gift deed and holing Late Mrs.Lakshmiammal had not become absolute owner of the property covered under Item No.1 of the suit properties. The trial Court committed error in shifting the burden of proof on the plaintiffs with regard to the genuineness of execution of the alleged Will. The learned trial Judge failed to consider that the profounder of the alleged Will dtd. 10/11/1982 under Ex.B-25 had not dispelled the existence of suspicious circumstances by adducing legally acceptable evidence. The learned trial Judge failed to consider the recitals contained in the partition deed dtd. 27/5/2009 under Ex.A-11 entered into between the defendants 1, 2, 3 and 4 in which, there was conspicuous absence of mentioning the alleged Will dtd. 10/11/1982 under Ex.B-25. The learned Trial Judge had committed an error in holding that the plaintiffs have not pleaded with regard to the question of sound and health condition of the alleged Testator of the alleged Will dtd. 10/11/1982 under Ex.B-25 totally overlooking the reply statement filed by the plaintiffs. The findings of the learned trial Judge in paragraphs 18 and 20 are unsustainable and not based on evidence and was based on conjectures and surmises. The findings of the learned trial Judge in paragraph 25 of the judgment are incorrect and perverse. The findings of the learned trial Judge in paragraph 21 are contrary to the findings given in paragraphs 18 to 20.