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Judgment
M. Chockalingam, J.—This second appeal is preferred from the judgment and decree of the learned District Judge, North Arcot at Vellore
dated 10-1-1990 made in A.S. No, 135/89 reversing the judgment and decree of the learned District Munsiff, Gudiyatham dated 20-3-1989
made in O.S. No. 552/82.
The first respondent herein filed a suit for delivery of the plaintiffs 1 /3rd share in the schedule mentioned Jewels in specie or in the alternative
pay him a sum of Rs. 10,859.70 being the value thereof with the following averments. The plaintiff first defendant and one Natesa Mudallar were
brothers. The plaintiffs father died in the year 1965 and mother Sivagami Animal died in or about 1976. Gold jewels of 22 carat more fully
described in the schedule to the plaint belonged to Sivagami Ammal and were being worn by her. Sivagami Ammal died at No. 120, Road Street.
Thiruvalam village. At the time of burrial, the first defendant re moved all the schedule mentioned Jewels from the body and kept them with him.
Sivagami Ammal desired that the Jewels possessed by her should be taken equally by her sons. During the end of January 1981, the third
defendant approached the plaintiff representing that lie was getting married and so required funds. The plain tiff asked him to approach the first
defend ant and take his share in the jewels and utilise the same. Thereupon the third de fendant went to the first defendant and re turned stating that
the first defendant had told him that the jewels were with the plain tiff. The plaintiff advised the third defend ant to approach the first defendant with
eld elderly relations and ask for the jewels since the jewels were not with the plaintiff as alleged by the first defendant. The plaintiff issued a
lawyer''s notice to the first defendant demanding his share in the schedule mentioned Jewels. The first defendant sent a reply through his counsel
making false allegations. A copy of the notice and reply are filed with the plaint. Subsequent to the receipt of the reply notice, the plaintiff learnt that
the defendants 2 and 3 had approached the first defendant on 5-2-1981 along with one Venu son of Rathnam of Kodaikal and Munirathnam, son
of Munisami Mudali of Ponnai and asked for their l/3rd share of their grandmother''s jewels and that the first defendant admitted the existence of
the schedule mentioned jewels with him in their presence and the first defendant fetched goldsmith Nataraja Achari from the bazaar and got the
schedule mentioned jewels weighed by the goldsmith in their presence and the Jewels weighed 2516 sovereigns. However, the first defendant
failed to deliver the defendants 2 and 3 their 1 /3rd share in the jewels. The plaintiff after becoming aware of these facts sent a rejoinder to the first
defendant''s counsel on 5-7-1981 and claimed l/3rd share in the jewels. The plaintiff and the first defendant were each entitled to 1 /3rd share in
the Jewels and the defendants 2 and 3 were together entitled to the remaining l/3rd share. The first defendant had failed to divide the jewels and
deliver the plaintiff his l/3rd share in spite of the lawyer''s notice. Hence the plaintiff has filed the suit for recovery of his share in the Jewels.
The first defendant contested the suit by alleging that the plaintiff is not entitled to the relief either in law or on facts; that it is true that the plaintiff
was the younger brother of the defendant; that Natesa Mudaliar was the youngest brother; that he was the father of the defendants 2 and 3; that
the plaintiffs father Govindappa Mudaliar died in the year 1965 and his wife Slvagami Ammal, the mother of the plaintiff died in the year 1968; that
Sivagami Ammal died in or about 1976 is not correct; that the Jewels described in the schedule to the plaint belonged to sivagami Ammal and they
were owned by her, which were all false; that Sivagami Ammal did not possess the alleged jewels described in the plaint schedule; that during her
last days she was wearing only a gold chain weighing only 4 sovereigns and one pair of gold kappu weighing about 2 sovereigns, one pair of gold
kammal and a gold nose screw both weighing 1/2 sovereigns; that excepting items 2, 3, 4 and 6 mentioned in the plaint schedule, the other plaint
schedule items did not belong to Sivagami Ammal and Sivagami Ammal was also not in possession of the plaint schedule items 1, 5, 7 and 8; that
Sivagami Ammal died on 19-4-1968 at Thiruvalam village; that at the time of her death, the defendant was at Madras, but at the time when the
defendant reached the place, the plaintiff had removed even the jewels owned by Sivagami Ammal i.e. is ems 2, 3, 4 and 6; that Sivagami Ammal
desired that the jewels possessed by her should be taken equally by her sons which was not correct; that Sivagami Ammal died Intestate leaving
behind her three sons and two daughters; that all of them are equally entitled to the Jewels of the said Sivagami Ammal; that in fact after the
ceremony, the defendant asked the plaintiff to give his l/5th share in the said jewels; that the plaintiff was evading to give 1 /5th share in the said
Jewels; that the above being the correct facts, the allegations to the contrary made in the plaint were all false; that the averments that the third
defendant approached the first defendant and asked the jewels were only false; that even to the knowledge of the third defendant, the jewels were
only with the plaintiff; and hence the question of the third defendant approaching and asking the first defendant for Jewels did not arise at all; that
the defendant was not aware of the third defendant approaching the plaintiff and asking him for the jewels, but the third defendant never
approached the first defendant and made any demand of his share; that the defendant was not in possession of any of the Jewels of Sivagami
Ammal: that the third defendant did not come to this defendant and asked for any of the Jewels; that the further allegation that on 5-2-1981, the
defendants 2 and 3 approached the defendant along with Velu and Munirathlnam and subsequently the alleged jewels were weighed by Nataraja
Achari were all false; that as the defendant was not in possession of any of the jewels of Sivagami Ammal. the question of the defendant fetching
the goldsmith and weighing them did not arise at all: that the defendants 2 and 3 were also entitled to their legitimate share in the Jewels possessed
and owned by Sivagami Ammal. but not in the alleged Jewels mentioned in the plaint schedule; that the defendant along with the defendants 2 and
3 claimed his legitimate share in the abovementioned items 2, 3. 4 and 6 in the plaint; that at the time when he received the notice dated 1-3-1981,
the defendant was ill; and hence he requested his son-in-law to go to Vellore and to give a suitable reply on his behalf; that the defendant came to
know through his counsel that the reply alleged to have been issued by an Advocate at Sholinghur that too containing false allegations; that the
reply dated 4-3-1981 was not issued according to the Instructions given by the defendant; that the defendant never Venu to issue reply notice
through the advocate at Sholinghur; that the said reply dated 4-3-1981 contained false allegations adverse to the interest of the defendant ;that the
defendant understood that Venu, brother-in-law of the third defendant deliberately caused a reply to be Issued with false allegations against the
interest of the defendant; that the defendant never admitted that Sivagaml Ammal possessed and was wearing all the plaint schedule Jewels; that in
any event if it was true that the defendant was in possession of the Jewels, he did not admit the same; that the suit claim was clearly barred by
limitation; that the plaintiff has filed the suit in collusion with the defendants 2 and 3 and Venu, the brother-in-law of the third defendant; that the
defendant was not in possession of any of the jewels of Sivagaml Ammal and hence he was not liable to give answer to the claim of the plaintiff as
found in the plaint; that Sivagami Ammal died on 19-4-1968 at the age of 85 and before her death, she was bed ridden for more than six months;
that she was residing all along with the defendants 2 and 3; that the conduct of the plaintiff positively proved that the suit was barred by time; that
the conduct of the plaintiff in coming to Court in 1981 while the mother died in 1968 proved that the case of the plaintiff was absolutely false and
was also hopelessly barred by time; or by abandonment, or relinquishment or ouster; that as a matter of fact for fear of the suit being barred by
time, the plaintiff instead of filing the suit for delivery of his share in the alleged jewels has styled the suit as one for partition; that in any event of the
matter, the suit was barred by time and liable to be dismissed in limine;
The trial Court framed the necessary issues, tried the suit and dismissed the same. Aggrieved over the same, the plaintiff filed an appeal on the
file of the District Court, Vellore, wherein the judgment and decree of the trial Court were set aside and a decree was granted allotting l/5th share
in the schedule mentioned jewels to the plaintiff, or Rs.6,515.80 towards its value with proportionate costs. Aggrieved over the same, the first
defendant preferred this second appeal. ''
At the time of admission, the following substantial questions of law were formulated by this Court for consideration.
1) Whether the finding of the lower appellate Court that the first defendant is in custody of 25 1/2 sovereigns of Jewels of Sivagaml Ammal is
correct in law and based on proper evidence?
2) Whether the finding of the lower appellate Court that the suit is in time is correct in law?
During the pendency of the second appeal the first appellant died and his LRs have been added as appellants 2 to 4 who have prosecuted this
second appeal. This second appeal has been preferred by the first defendant and subsequently prosecuted by the appellants 2 to 4, who are the
LRs against the judgment of the lower appellate Court granting a decree in favour of the first respondent herein allotting l/5th share in the plaint
mentioned jewels or is s value viz. Rs.6,515.80. The first respondent originally filed a suit in the trial Court seeking delivery of l/3rd share in the
gold Jewels mentioned in the schedule or its value alleging that the schedule mentioned jewels were owned and worn by his mother Sivagami
Ammal at the time of her death; that his elder brother the first defendant was in possession of the same all along and hence he was bound to deliver
his 1 /3rd share in the same. The said suit was vehemently contested by the first defendant/appellant that Sivagami Ammal owned items 2, 3, 4 and
6 only at the time of her death and not the other Jewels found in the schedule and those items of jewels owned by Sivagami Ammal were in the
possession of the plaintiff and not with the first defendant and hence the plaintiff was answerable to the shares of the defendants. Agreeing with the
said defence, the trial Court dismissed the suit. When it was appealed against the District Court reversed the judgment of the trial Court and
granted a decree directing the first appellant to give l/5th share in the plaint schedule jewels or its value viz. Rs.6,515.80. Aggrieved over the same,
the first appellant has brought forth this second appeal.
The learned counsel appearing for the appellant would submit that the trial Court after full appreciation of the evidence adduced has made a
considered judgment; that the first appellate Court should have confirmed the same: that the first appellate Court did not approach the question
arising for determination in the case from the proper perspective; that the correct and proper point for determination was not settled by the first
appellate Court; that the lower appellate Court has correctly found that Sivagami Ammal died in the year 1968 but has erred in accepting the
plaintiffs case that she left behind gold ornaments weighing 25 1/2 sovereigns; that in this connection it has failed to note that the claim was made
after a period of 13 years which would show the hollowness of the plaintiffs claim; that it is pertinent to point out that the burden of proof was
heavily on the plaintiff, but he miserably failed to discharge the same; that the first appellate Court has not acted upon the reply notice under Ex. A2
in coming to the conclusion that Sivagami Ammal left behind 25 1/2 sovereigns of gold; that the lower appellate Court should have accepted the
explanation put forth by the appellant regarding Ex.A2; that it was totally improbable that Sivagami Ammal would have been taken to cremation
ground with all the jewels on her body; since is was not in conformity with Hindu custom; that the plaintiff could not be granted with the decree on
the basis of the admission of the first defendant alone; that the lower appellate Court should have rejected the evidence of PWs 2 and 3 which
appear to be totally artificial; that PWs 2 and 3 were procured by the plaintiff to prove the case; that it was hardly acceptable that PW2
remembered the facts which took place more than 50 years ago and narrated the same in a parrot like manner which itself shows that the evidence
was highly artificial; that when the lower appellate Court has rightly found that the plaintiffs two sisters were also entitled to the share in the jewels,
it ought to have dismissed the suit on the ground of non Joinder of necessary parties; that the suit being one for partition, it should have been
dismissed since all the sharers have not been made parties to the suit even according to the finding of the lower appellate Court; that the lower
appellate Court should have confirmed the finding of the trial Court; that the suit was barred by limitation; that the article which was applicable to
the present facts of the case was article 69 and not article 70; that the lower appellate Court has erred in finding that the jewels were deposited
with the first defendant by Arunachala Mudaliar which was not the case of the plaintiff himself: that even on the plaintiffs own showing in the
pleading, the jewels were clandestinely and surruptiously removed by the first defendant and taken away by him without the knowledge of the
plaintiff and consequently Article 70 has absolutely no application to the facts of the case; that the lower appellate Court has erred in granting 1
/5th share of the jewels accepting the plaintiffs case and overlooking that even on their own showing the total weight of the gold ornament was only
12 sovereigns; that the finding of the lower Court that the other two daughters of Sivagami Animal was also entitled to the share was not correct;
that the suit was also barred by res-Judicata in view of the fact that no claim was made by the plaintiff in the previous litigation between the parties
and the certified copy of the decree filed as additional evidence in the appeal ought to have been received; that it is pertinent to note that in the
earlier litigation between the parties, the plaintiff has not raised any grounds in respect of the Jewels in question; that the reasons adduced by the
lower appellate Court to dismiss the application for additional evidence and to reject the documents were not at all correct in law and hence the
judgment of the first appellate Court has got to be set aside and the trial Court''s Judgment has got to be restored.
The learned counsel appearing for the first respondent would submit that the trial Court without proper appreciation of the evidence adduced by
the plaintiffs side rejected the claim; that when it was appealed against, the first appellate Court on proper consideration of the evidence and rival
submissions has come to the correct conclusion that the first defendant was entrusted with the jewels of his mother Sivagami Ammal; that the
plaintiff in the trial Court in order to substantiate the claim has examined two witnesses except himself to prove the entrustment of jewels to the first
defendant at the time of the death of their mother Sivagami Ammal and the other witness who weighed the Jewels which were in the custody of the
first defendant; that their evidence has clearly proved the existence of the jewels and the custody of the appellant/ first defendant; that when a
notice was issued by the first respondent making a demand of his share in the jewels, a reply was issued by the appellant/first defendant through his
counsel, wherein the existence of the jewels was admitted and all the averments in the written statement and the evidence of DW1 contra to the
averments found in the reply notice were rightly rejected by the lower appellate Court, since it was an after thought; that since there was a refusal
to return the jewels by the first defendant, a suit has been filed within three years therefrom and under such circumstances, the first appellate Court
has rightly pointed out Article 70 of the Limitation Act would apply to the present facts of the case and not article 69; that it is pertinent to note that
the first defendant was entrusted with the jewels and that he refused to give the shares to the plaintiff and other sharers and hence there arose a
necessity to file a suit and therefore what is applicable to the present facts of the case is Article 70 of the Limitation Act and thus the suit was well
within time; that though the plaintiff has claimed l/3rd share in the jewels in question, the first appellate Court has given only l/5th share taking into
consideration that the plaintiff has got two other sisters also who are entitled to l/5th share each; that though the first appellate Court has granted
only l/5th share to the plaintiff, the plaintiff has not preferred any appeal therefrom and under such circumstances, the Judgment of the first appellate
Court has got to be sustained and the second appeal has got to be dismissed.
What is challenged herein by the appellant is the judgment of the lower appellate Court granting a decree in favour of the plaintiff with a direction
to the first appellant/First defendant to deliver l/5th share in the gold Jewels mentioned in the plaint schedule or its value viz. Rs. 6,515.80. is is not
in dispute that the first respondent/plaintiff, first appellant/first defendant and one Natesa Mudaliar, father of the defendants 2 and 3, are brothers
and they are the sons of Govindappa Mudaliar and Sivagami Ammal. Govindappa Mudaliar died in the year 1965 leaving behind him his wife,
aforestated three sons and two other daughters also. is was pleaded by the plaintiff/ first respondent that Sivagami Ammal died in the year 1976
which contention was disputed by the first appellant stating that she, died in the year 1968. in order to prove his contention the defendant marked
Ex. B4 death certificate pertaining to Sivagami Animal and in view of the same, the first appellate Court has rightly held that Sivagami Ammal died
on 19-4-1968 as found under Ex. B4 and not in 1976 as contended by the plaintiff.
Seeking delivery of l/3rd share in the plaint mentioned gold jewels, the plaintiff in his pleading and evidence would state that at the time of the
death of his mother Sivagami Ammal she was owning and wearing those Jewels weighing 2 5 1/2 sovereigns of gold and those jewels were
removed and kept by the first defendant all along and subsequently demands were made by the third defendant at the time of his marriage; that the
same was weighed by PW2, but the first defendant did not give the respective shares to his sharers; that the plaintiff Issued a notice through his
lawyer under Ex. Al which was replied by the first appellant under Ex. A2 wherein he has categorically admitted the existence of the jewels and
thus the first defendant appellant was liable to deliver l/3rd share to the plaintiff. The said claim of the plaintiff was refuted by the first defendant/first
appellant on three grounds stating that Sivagami Ammal neither owned nor worn the plaint mentioned Jewels; that those jewels were only in the
custody of the plaintiff/first respondent and even assuming those jewels are in the custody of the first appellant, the claim is barred by limitation.
After careful consideration of both oral and documentary evidence, the first appellate Court has rejected the above contentions of the first
appellant/first defendant and has found in favour of the first respondent/plaintiff. in order to substantiate the fact that Sivagami Ammal was owning
and wearing the Jewels, the plaintiff has examined himself as PW1. The plaintiff has made a demand on the first defendant by Issuing a notice
through his lawyer under Ex. Al dated 1-3-1981. stating the aforestated facts and annexing as schedule therein containing all the details of Jewels
owned by Sivagami Ammal at the time of her death. The said notice resulted in a reply under Ex. A2 dated 4-3-1981. is is pertinent to point out
that in the said reply under Ex.A2 it is stated ""It is true that the jewels mentioned in your notice are belonging to Sivagami Ammal"". This would
clearly indicate that those jewels were available in the hands of Sivagami Ammal during her life-time. Having given such a reply notice, the first
defendant in his written statement and in his evidence made an attempt to state that the said averment was false and he did not Instruct the said
counsel to issue such a reply notice; that he asked the brother-in-law of the third defendant Mr. Venu to give a suitable reply through a counsel at
Vellore and Instead he has chosen to give such a reply notice through the counsel at Shollngur containing such false allegations and hence that
notice would not bind him. The first defendant examined neither the said Venue who was admittedly alive nor the counsel who issued the reply
notice. Under the stated circumstances the first defendant cannot be permitted to go against his admission made in Ex. A2 notice as to the
existence of the jewels.
The next contention of the appellant''s side was that though the jewels were available, they were taken away by the plaintiff and were in his
custody; and that he was to give share to all the children of Sivagami Ammal, This contention is thoroughly falsified by the evidence of PW3 one
Aruna-chalam. The first defendant as DW1 has categorically admitted that when the Jewels were removed from the body of Sivagami Ammal,
PW3 asked him what was to be done and the first defendant Instructed him to hand over to his younger brother viz. the plaintiff. PW3 has
categorically deposed that after the removal of the Jewels from the body they were all handed over to the first defendant. The plaintiff has
specifically stated in the plaint and his evidence also that when the third defendant came and asked him about the jewels, he advised him to
approach the first defendant and when the third defendant met the first defendant, he brought one Nataraja Achart with whose assistance the
jewels in the custody of the first defendant were weighed and found to be 25 1/2 sovereigns, but the first defendant without sharing the same
continued to keep is with him unlawfully. in order to prove the above said contention, the plaintiff has examined the said Nataraja Achari as PW2
who has categorically deposed that he weighed the Jewels which were with the first defendant and in the presence of the first defendant and others
and found them weighing 25 1/2 sovereigns. This evidence of PW2 would clinchingly prove that the Jewels of Sivagami Ammal were in the
custody of the first defendant and they weighed 25 1/2 sovereigns. The appellants are unable to show any reason or circumstance to disbelieve the
evidence either of PW2 or of PW2 and thus the first appellate Court was perfectly correct in accepting the evidence of PW2 for the fact that the
Jewels continued to be in the possession of the first defendant and of PW3 as to the fact of entrustment of the jewels to the first defendant.
The next contention that was raised by the first appellant''s side is that the suit was hit by law of limitation. The learned counsel for the
appellants would contend that the case would fall under Article 69 of the Limitation Act, since it was for the recovery of the specific movable
property and it was specifically pleaded that those jewels were wrongfully taken by the first defendant and hence the suit should have been filed
within three years from the time when those jewels were wrongfully taken by the first defendant and taking Into consideration the time of death of
Sivagami Ammal in 1968, the suit should have been filed in 1971. but the plaintiff has filed the suit only in the year 1982, and hence the suit is
barred by time. Contrary to the above it is contended by the learned counsel for the first respondent that the jewels of Sivagami Ammal were
deposited with the first defendant to be kept by him in custody for the benefit of the owners viz. the children of Sivagami Ammal and under the
stated circumstances Article 70 of the Limitation Act is applicable and hence the suit was filed within three years from the date of refusal by the first
appellant after the demand was made by the first respondent. After careful consideration of both the submissions, the court is of the view that
Article 70 is only applicable to the present facts of the case. Article 69 of the Limitation Act reads :
69 :-- For other specific movable property - Three years - When the property is wrongfully taken.
Article 70 of the Limitation Act reads :
70 :-- To recover movable property deposited or pawned from a depositary or pawnee -- Three years -- The date of refusal after demand.
A reading of the above two articles would make it clear that the words ""specific movable property"" occurring in the first column of Article 69 do
not find place in Article 70, but only the words ""movable property"" are employed in Article 70. But it has to be considered jointly that Article 70
also deals with the recovery of specific movable property. Article 69 does not deal with the deposit in any sense at all and so the question of the
applicability of Article 69, under the aforestated circumstances, would not arise. As rightly pointed out by the learned counsel for the first
respondent, the Jewels of Sivagami Animal were deposited to the first defendant to be kept by him for the benefit of the owners and to be shared
by the children of Sivagami Animal and under such circumstances, what is applicable to the present facts of the case is only Article 70 and in view
of the same, the suit filed by the plaintiff within three years from the date of refusal by the first defendant after the demand was made by the plaintiff
was well within time. The last contention that was raised by the learned counsel for the appellants was that the two of the daughters of Sivagami
Ammal were not made as parties to the suit. The Court has to necessarily agree with the respondents contention that merely on the ground of
nonjoinder of parties, the suit cannot be dismissed. The first appellate Court has taken into consideration that Sivagami Arnmal left behind her two
sons and two daughters and two grandsons through one pre-deceased son and they were all thus entitled to share the jewels and the plaintiff was
entitled to only l/5th share. Taking Into consideration of the above, the Court is of the considered view that there is nothing to interfere in the
Judgment of the first appellate Court that the plaintiff was entitled to l/5th share or its value. The Judgment of the first appellate Court has got to be
confirmed.
in the result, this second appeal would fall and the same is dismissed with costs. The Judgment and decree of the first appellate Court are
confirmed.