IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.09.2022
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A No.607of 2013
Kannan ... Appellant
Vs.
1.Subramaniyan
2.Poova
3.Sumathi
4.Minor Tamilarasan ...Respondents
PRAYER: This Second appeal filed under Section 100 of the Code of Civil Procedure against the judgement and decree of the Subordinate Judge's Court at Kallakurichi, dated 12.07.2012 in A.S No.2 of 2008 confirming the judgement and decree of the Principal District and Munsif Court at Kallakurichi, dated 31.10.2006 in O.S No.677 of 2001.
For Appellant : Mr.P.Valliappan
For R2 : Mr.C.Prabakaran
For R1,R3,R4 : No appearance
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https://www.mhc.tn.gov.in/judis
JUDGMENT
The appellant herein is the plaintiff in O.S No.677 of 2001 before the Principal District Munsif Court, Kallakurichi as against the defendants/respondents herein for the relief of partition and separate possession in the suit property situated at Sankarapuram taluk, Risivandiyam Village in survey No.292/21A, to the extent of 8 2/3 cents with other rights. The first defendant is the purchaser of the suit property from the third defendant, other defendants are legal heirs of deceased Selvam, who is the brother of the plaintiff/appellant herein. The plaintiff contended that the suit property was purchased by his father in the name of the plaintiff and his brother Selvam under a registered sale deed dated 09.10.1984. At that time, they were minors thereafter they enjoyed the suit property jointly and his brother selvam died leaving behind wife/third defendant and son/fourth defendant as legal heirs, without dividing the suit property. While being so, plaintiff's brother's wife Sumathi/third defendant sold her husband's share to the first defendant for and on behalf of his minor son Tamilarasan/fourth defendant also. Hence the plaintiff filed the suit for partition and separate possession by claiming that there was no partition 2 https://www.mhc.tn.gov.in/judis held between the plaintiff and his brother deceased Selvam. Before the Court below, the learned counsel for the third and fourth defendant submitted that during the life time of the Selvam, there was oral partition held between the plaintiff and her husband/selvam, and the half share was allotted to her in the suit property. Thereafter, which was sold to the first defendant in order to settle the loan borrowed by her for medical expense and funeral expenses of her husband/selvam. Following which, the first defendant enjoyed the said property by running welding unit. The first defendant contended that he purchased the property from the third defendant with four boundaries. From the year of 2001, he enjoyed the suit property absolutely and also denied the joint possession along with the plaintiff. The mother of the plaintiff/second defendant submitted that as per the first class legal heir of the deceased Selvam, she is entitled to 1/3 share in the suit property which was allotted to the share of her deceased son Selvam. The Trial Court framed 6 issues and also considering the evidence on either side concluded that the suit property is undivided joint family property and also observed that already out of 8 2/3 cents, during the life time of the Selvam, plaintiff and the deceased selavam sold 4 cents to third party. In the remaining 4 2/3 cents, there was oral partition held between 3 https://www.mhc.tn.gov.in/judis them and accordingly ½ share i.e., 2 cents was allotted to the plaintiff and remaining 2 2/3 cents was allotted to the share of Selvam and the same was sold by the third defendant to first defendant with four boundaries and the plaintiff is separately enjoyed his share and also allotted 1/3 share to the mother /second defendant, as she is first class legal heir of the deceased Selvam. Thereby, the trial Court declined to grant relief of partition in favour of the plaintiff and dismissed the suit with allotting 1/3 share to the second defendant.
2. Aggrieved over that, the plaintiff preferred an appeal in A.S No.2 of 2008 on the file of the Sub Court, Kallakurichi by contending that without appreciating all the evidences, the trial Court erroneously dismissed his claim. Hence, he prayed to set aside the same by granting relief of partition. The Lower appellate Judge independently analysed the facts and evidence arriving conclusion that already out 8 2/3 cents, 4 cents was sold during the life time of the plaintiff's brother Selvam by both the parties and in the remaining 4 2/3 cents out of oral partition ½ share i.e two cents was allotted to the wife of Selvam/third defendant, and she sold to the first defendant and the remaining 2 cents was enjoyed by the plaintiff and he admitted his possession, thereby, there is no joint possession of the 4 https://www.mhc.tn.gov.in/judis property, since the properties are already partitioned, the findings rendered by the trial Court is confirmed by dismissing the appeal and with regard to 1/3 share allotted by the Trial Court to the mother of the Selvam/Second defendant, the lower appellate Judge made observations that second defendant has to work out her remedy by filing separate suit for partition.
3. Challenging the same the plaintiff preferred this second appeal and it is admitted with the following questions of law:
(A) when the suit property measuring an extent of 8 2/3 cents had been purchased under Ex.A2 registered sale deed dated 09.10.1984 in the name of the appellant and his deceased brother selvam and the appellant & his deceased brother selvam had sold a total extent of 4 cents under Ex.A4 and A5 dated 17.07.1996 and 04.06.1990 respectively, and the remaining extent of 4 2/3 cent is yet to be partitioned, whether the Courts below are justified in law in dismissing the suit for partition filed by the appellant?
(b) Whether the respondents 3 and 4 are entitled to execute Ex.B1 sale deed dated 04.04.2001 in favour of the first respondent, as legal heirs of the deceased Selvam especially when the 2nd respondent is also 5 https://www.mhc.tn.gov.in/judis entitled to 1/3rd share over the property of deceased Selvam and she had not joined in execution of the said sale deed, even assuming without admitting that the respondents 3 and 4 had right to execute the same?
(c ) Whether the lower appellate Court is correct in law in holding that the 2nd respondent has to file a separate suit for partition especially when it is not disputed that she has 1/3rd share in the property of deceased Selvam?
(d) Whether the Courts below are correct in law in ignoring the admissions made by DW's 1 to 3, which would categorically establish the case pleaded by the appellant.
(e ) Whether enjoyment of portions of the property by co- sharers for convenience, would imply that there has been actual division by metes and bounds as required under law?
(f) Whether the Court below are correct in law in concluding that there has been partition on the basis of the recitals contained in the self serving document under Ex.B1 sale deed dated 04.04.2001? 6 https://www.mhc.tn.gov.in/judis
4.The suit property belongs to the plaintiff and his brother Selvam through Ex.A2, which is an undisputed facts. Though the suit property is described as 8 2/3 cents, but, both the parties concerned admitted that during the life time of the Selvam, both the plaintiff along with the Selvam sold 4 cents to the third party. Hence, the present suit is only for remaining 4 2/3 cents alone. The plaintiff also enjoyed his half share in that remaining four cents. As per the plaintiff case, after the death of his brother/selvam the property was enjoyed and owned by his brother's wife/third defendant, who sold 2 ¾ cents to the first defendant. Due to which, mess arouse between the parties. Hence, the plaintiff filed the suit for partition.
5. Per contra the wife of selvam/ third defendant contended that already property was orally divided and the share allotted to her husband was sold by her to the first defendant in order to discharge debt which arouse due to the medical expenses and funeral expenses of her husband. Thereafter, the first defendant enjoyed the property and on the other side plaintiff enjoyed his share separately. Further, the first defendant submitted that after that purchase, he enjoyed the property with four boundaries by 7 https://www.mhc.tn.gov.in/judis welding shop. Thereby, the defendants 1 and 3 denied the joint nature of the property. But the mother of the plaintiff /second defendant claimed her lawful share in the share allotted to her deceased son Selvam. The plaintiff was represented through his power agent i.e., his father, who denied the oral partition but adduced no evidence to prove the joint possession of the property, however, during the cross examination, he admitted that he enjoyed the half share as follows:
.............. jhth brhj;jpy; vdf;Fs;s ghfk; vd; mDgtj;jpy; cs;sJ. MlkhLfis fl;o tUfpnwd. Mjpy; bfhl;lha[k; cs;sJ/ Rkhh; 5. 6 tUl';fshf bfhl;lha; cs;sJ//////
6. Further in the evidence of P.w.1 he admitted as follows ..... Vw;fdnt tpw;gid bra;;ag;gl;l 4 brd;l; jhthtpy; brhy;;yg;gltpy;iy/ jhth g[y vd;dpy; 4 brd;l; Vw;fdnt fpuak; bfrhLf;fg;gl;Ls;ssJ/ jhth vd;dpy; kPjKs;;s 4 ¼ brd;oy; Rkjp fpuak; bfhLj;jjpy; mtU;fFhpa ghfk; bghUj;J gpujpthjp mDgtk; bra;tjpy; vdf;F Ml;nrgid ,y;iy/////
7. So the plaintiff has no objection with regard to the share purchased by the first defendant from the third defendant and also his enjoyment of the property as per the sale deed dated 04.04.2001. But the 8 https://www.mhc.tn.gov.in/judis counsel for the plaintiff pointed out that by relying the recitals of Ex.B1/sale deed, wherein, the Court below erroneously concluded that the share allotted to the husband was sold by the third defendant without considering that it is self serving document. On seeing the evidence oral partition is completed by the third defendant which has not been proved with the independent witnesses and on the other hand, she relied the recitals of Ex.B1 sale deed. Wherein, it is mentioned that vdJ fhyk; brd;w fztUf;Fk; mtuJ jk;gp fz;zDf;Fk; ghrg;go ghfk; fpilj;J mtw;wpy; vd; fzth; ghfj;ij mth; mDgtk; bra;Jte;J mth; fhyk; brd;wgpd; ,d;W njjp tiu vd; mDgtj;jpy; cs;sJkhd fPH;fz;l brhj;J tptuj;jpy; cs;s V brl;oa[y; fhypkidfis ,d;W j';fsf;F brhj;J tpw;fpiuak; bra;J bfhLj;Jtpl;nld;;/////
8. Admittedly, it is self serving documents and proved the oral partition. But, it requires some independent evidence, however, the defendants failed to adduce. Hence, based upon the Ex.B1 alone both the Court below arrived at a conclusion that already property was partitioned which is unacceptable. Accordingly, the questions of law f is answered. 9 https://www.mhc.tn.gov.in/judis
9. However, as discussed above the plaintiff has no objection with regard to the purchase made by the first defendant with boundaries and enjoyed the same, but, he wants partition of his remaining ½ share ( two cents) in the suit property. The learned counsel for the plaintiff submitted that mere enjoyment of the property would not imply that there has been actual division with metes and bounds as required under law.
10. As discussed above except Ex.B1, there is no proof for oral partition but evidence of the parties reveals that after purchase of the property, the first defendant enjoyed it as per the sale deed and in the remaining half share the plaintiff is enjoyed by using it as a cattle shed. But there is no actual division with metes and bounds. Though the Court below accept that the plaintiff is entitled for remaining two cents. But declining the relief by believing the oral partition. But the facts reveals that properties were mere conveyed and enjoyed without any actual division. Hence, the Court below failed to appreciate this aspects which needs interference accordingly, question of A is answered.
10 https://www.mhc.tn.gov.in/judis
11. Further, the Second defendant herein is mother of the deceased Selvam and she claim 1/3 share in entire property. Admittedly, she is residing along with her son but she has not raised any objection at earliest point of time. Though, she is entitled for 1/3 share in the share belongs to deceased Selvam. But she has to work out her remedy by filing separate suit to that effect findings rendered by the lower appellate Court is acceptable and needs no interference. Accordingly question of law C is answered.
12. Both the Court below accept that only 4 2/3 cents was for partition in which plaintiff is entitled for ½ share i.e 2 cents remaining 2 2/3 cents belongs to the first defendant by purchase. Accordingly, out of 4 2/3 cents the plaintiff is having ½ share i.e two cents share and the remaining ½ share 2 2/3 cents allotted to the share of the first defendant as per the description found in the sale deed Ex.B1 on 04.04.2021 under equity. The remaining half share under the enjoyment of the plaintiff is allotted to his share. Accordingly, final decree is passed as the plaintiff have no objection to allot the property to the first defendant under equity to that effect and the questions of laws are answered . Hence, the appeal is allowed by set aside Judgements of the both the Court and the property covered under Ex.B1 sale 11 https://www.mhc.tn.gov.in/judis deed purchased by the first defendant is allotted to the first defendant under equity and the remaining share is allotted to the plaintiff. Accordingly, final decree is passed as plaintiff has no objection to allot property purchased by the first defendant under equity.
16 .09.2022 pbl 12 https://www.mhc.tn.gov.in/judis T.V.THAMILSELVI,J.
Pbl To
1. The Subordinate Judge's Court, Kallakurichi.
2. The Principal District and Munsif Court, Kallakurichi.
SA.No.607 of 2013 13 https://www.mhc.tn.gov.in/judis 16.09.2022 14 https://www.mhc.tn.gov.in/judis