Jane Merry @ Jaya Merry vs Merlyn and Others

These appeals are directed against judgment dated 11.2.2002 of the learned Single Judge of Madhya Pradesh High Court whereby he allowed Second Appeal Nos. 139, 348 and 701 of 1999 preferred by the parties to Suit No. l2-A/1992 filed by Respondent No. 1 and declared that the Appellant and Respondent Nos. 1 to 4 herein will have 1/5th share in the suit property.

Victor Richardson (husband of the Appellant and father of Respondent Nos. 1 to 4) was employed in the railways. He contracted two marriages. He first married Josephin and from her he had two children - a son, namely, John Richardson and a daughter (Respondent No. 1 - Smt. Merlyn). After the death of Josphin, Victor Richardson married the Appellant and they had three children, Smt. Liliyan (Respondent No. 2), Smt. Mari (Respondent No. 3) and Garnet (Respondent No. 4). Victor Richardson is said to have retired from service and died on 30.8.1947. After his death, the Appellant purchased suit property bearing Mourisi No. 198 admeasuring 19 acres 30 decimals with one house situated in village Kulhards, Tehsil Harda District Hoshangabad (M.P.) for a sum of Rs. 7000/- vide sale deed dated 4.8.1948 in her name and the names of John Richardson and Garnet Richardson.

After 27 years of purchase of suit land by the Appellant, Respondent No. 1 filed Suit No. l2-A/1992 for partition and possession. She pleaded that the suit property was purchased from the retiral benefits received by Victor Richardson and, as such, all his children are entitled to equal share. Respondent No. 1 further pleaded that the Appellant cannot claim any right in the property of Victor Richardson because she had remarried. In her written statement, the Appellant pleaded that after the death of Victor Richardson, she was looking after the children of both the marriages along with the son of her brother Anthony Francis, whose wife had died. The Appellant further pleaded that Victor Richardson was habitual drunkard and whatever amount was received after his retirement had been spent on his medicines and repayment of loan and that the suit property was purchased by her from the money provided by her brother Anthony Francis. According to her, the names of two sons were included in the sale deed out of sheer love and affection. She also claimed that even though the names of two sons were included in the sale deed, she was the exclusive owner and no other person has a right to receive share in the property. Garnet Richardson (Respondent No. 4 herein), who was impleaded as Defendant in the suit pleaded that he is entitled to 2/3rd share in the property.

On the pleadings of the parties, the trial Court framed the following issues:

No. Issues

Whether suit land Khasra No. 198 was purchased by Defendant No. 5 on 4.8.48 their money of her former husband Victor Richardson''s money and of her own and in the name of John and Garnet? If yes, then effect ?

lb. Whether suit land Khasra No. 198 was purchased by Defendant No. 4 with money given by her brother Anthony Francis and that of her own and in the name of John and Garnet? If yes, then effect?

Whether Defendant No. 5 has title in this suit land, if yes, then whether rights of Defendant No. 5 got extinguished due to second marriage with Antony Michel?

3a. Whether Defendant No. 3 has continuous unobstructed possession over the suit land for a period of 30 years?

3b. If yes, then whether Defendant No. 3 has become owner of the suit land in accordance with principle of adverse possession?

Whether suit is not maintainable being beyond limitation.

5a. Whether Defendant No. 5 is absolute owner of suit land?

5b. Whether John Richardson had title in the suit land? If yes then to what extent?

5c. After death of John Richardson who were legal representatives of his portion?

What are the shares of Plaintiff, Defendant Nos. 1 to 3 in the suit land?

Relief and costs

After considering the rival pleadings and evidence, the trial Court held that the Plaintiff has not been able to prove that Victor Richardson had received the particular amount by way of retiral benefits and the suit property was purchased from the amount allegedly received by him. The trial Court further held that Defendant No. 5 (Appellant herein) had been able to prove that the suit property was purchased from her own money and she cannot be said to have lost her right over the property only on account of performing second marriage. The trial Court rejected the plea of Respondent No. 4 that he had acquired title by prescription but, at the same time, held that Appellant cannot claim to be absolute owner of the suit property.

The lower appellate Court dismissed the appeals preferred by the parties and confirmed the decree passed by the trial Court by recording the following observations:

It is clear from the aforesaid analysis that suit property has been acquired by Defendant No. 5 Jane Mary only by purchase and she alone has title over it. She has only voluntarily got name of her step-son John and Defendant No. 3 Garnet who were minor at that time as children in the sale deed and said John and Garnet do not acquire any interest and title therefrom. Suit property being of exclusive ownership of Defendant No. 5 her counter claim deserves to be decreed and respective suit and counter claim of Plaintiff and Defendant No. 1 deserves dismissal with costs.

The original Plaintiff Smt. Liliyan did not challenge the appellate judgment but Respondent No. 1 did so by filing two Second Appeals bearing Nos. 139/1999 and 348/1999. Respondent No. 4 Garnet Richardson also filed Second Appeal No. 709/1999. By the impugned judgment, the High Court allowed all the appeals and granted declaration to which reference has been made in the opening paragraph of this judgment. Although, the learned Single Judge did not find any patent error or perversity in the appreciation of evidence made by the trial Court and the lower appellate Court, he accepted the plea put forward by Respondent No. 1 by relying upon the oral statements made by three sisters i.e., Respondent Nos. 1, 2 and 3 that the suit property was purchased from the retiral dues of their father Victor Richardson. The learned Single Judge also gave importance to the alleged failure of the Appellant to prove that her brother Anthony Francis was an affluent person and he could provide money to her for purchasing the suit property. In the opinion of the learned Single Judge, inclusion of the names of late John Richardson and Garnet Richardson in the sale deed was indicative of the fact that Anthony Francis had not gifted the property to his sister i.e., the Appellant.

We have heard learned Counsel for the parties and carefully scanned the record. In our view, the impugned judgment is liable to be set aside because the High Court committed a jurisdictional error by reversing the concurrent findings of fact recorded by the trial Court and the lower appellate Court on the issue of source of money from which the suit property was purchased in the names of the Appellant, John Richardson and Garnet Richardson. The two Courts analysed the oral and documentary evidence produced by the parties and concluded that the Plaintiff (Respondent No. 1 herein) failed to prove that the suit property was purchased from the retiral benefits received by Victor Richardson. In paragraph 10 of its judgment, the trial Court made a pointed reference to the contents of notice Ex. P1 got issued by Plaintiff-Respondent No. 1 wherein she claimed that her father had purchased the suit property during his life time, constructed bungalow and used and enjoyed the agricultural land with his family and observed that the said assertion is falsified by the contents of the sale deed (Ext. P10), which was executed on 4.8.1948 i.e., after almost one year of the death of Victor Richardson. The lower appellate Court independently evaluated the pleadings and evidence of the parties and agreed with the trial Court that the Plaintiff has failed to prove the factum of purchase of property from the retiral dues of Victor Richardson. The learned Single Judge overlooked that the onus to prove issue No. 1 was on Plaintiff-Respondent No. 1 which she had miserably failed to discharge inasmuch as no document was produced to prove that as a sequel to his retirement, Victor Richardson had received a particular amount and the said amount was used for purchasing the suit property. Notwithstanding this, the learned Single Judge reversed the findings of fact by simply relying upon the oral testimony of the three daughters of Victor Richardson (Respondent Nos. 1, 2 and 3 herein). This was clearly impermissible in view of the plain language of Section 100 of the CPC as amended by Act No. 104/1976 in terms of which the High Court is required to frame substantial questions of law and decide the same. The finding recorded by the trial Court and the lower appellate Court that the Plaintiff failed to prove that the suit property was purchased from the retiral benefits of Victor Richardson was pure finding of fact and the learned Single Judge was legally not entitled to overturn the same merely because he felt that a different view was possible. The so called failure of the Appellant to adduce the concrete evidence to prove that the money for purchase of the suit property was made available by her brother Anthony Francis also could not be made basis for reversing the judgments and decrees of the two Courts.

In the result, the appeals are allowed. The impugned judgment is set aside and those of the trial Court and the lower appellate Court are restored. However, the parties are left to bear their own costs.