SUPREME COURT OF INDIA

Case Status
Status : DISPOSED
 
Status of : Appeal Civil    7106 -7108    OF   2002
 
JANE MERRY ALIAS JAYA MERRY   .Vs.   MERLYN & ORS.
 
Pet. Adv. : MR. NIRAJ SHARMA   Res. Adv. : MR. PRAVEEN SWARUP
 
Subject Category : PERSONAL LAW MATTERS - MATTERS RELATING TO PARTITION
 
Appealed Against : SA 701/99 OF HIGH COURT OF M.P AT JABALPUR
 
Date of Disposal : 24/02/2010

 
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NIC

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.7106-7108 of 2002

Jane Merry alias Jaya Merry ... Appellant

Versus

Merlyn and others ... Respondents

ORDER

1. 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.12-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.

2. 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
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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.
3. After 27 years of purchase of suit land by the appellant, respondent

No.1 filed Suit No.12-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
3

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.

4. On the pleadings of the parties, the trial Court framed the following

issues:

No. Issues
1. 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?

1b. 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?

2. 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?
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3b. If yes, then whether defendant No.3 has become owner of the
suit land in accordance with principle of adverse possession?

4. 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?

6. What are the shares of plaintiff, defendant Nos.1 to 3 in the

suit land?

7. Relief and costs

5. 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.

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6. 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."

7. 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
6

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.
8. 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
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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 Code of Civil Procedure 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
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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.

9. 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.

..................................J.
[G.S. Singhvi]

..................................J.
[Asok Kumar Ganguly]
New Delhi
February 24, 2010.
9

ITEM NO.104 COURT NO.8 SECTION IV

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 7106-7108 OF 2002
JANE MERRY ALIAS JAYA MERRY Appellant (s)

VERSUS

MERLYN & ORS. Respondent(s)

(With office report )

Date: 24/02/2010 These Appeals were called on for hearing

today.

CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE ASOK KUMAR GANGULY

For Appellant(s) Mr. S.K. Dubey, Sr. Adv.

Mr. Niraj Sharma,Adv.-on-record
Mr. Yogesh Tiwari, Adv.

For Respondent(s)
R4 Mr. Praveen Swarup,Adv.

Mr. S.B. Sanyal, Sr. Adv.

Mr. Akshit Shrivastava, Adv.
Mr. Inderjeet Yadav, Adv.
Mr. P.P. Singh, Adv.-on-record

Rr-Ex-Parte.

UPON hearing counsel the Court made the following

ORDER
The appeals are allowed in terms of the
signed order.
The parties are left to bear their own costs.

(Sheetal Dhingra) (Phoolan Wati Arora)

Court Master Court Master
[Signed order is placed on the file]