A.S. No.809 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2022
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY, J.
A.S. No.809 of 2012
1.P.Konreddy (Deceased)
S/o. Perumal Reddy
2.P.Chinnaponnu
S/o. Perumal Reddy
3.Chinnamaily
W/o.P.Konreddy …Appellants/ Defendants
(3rd Appellant is brought on record as Lrs of the deceased 1 st appellant vide
order of this Court dated 06/06/2018 made in C.M.P. No.8258 of 2018 in
A.S.No.809/2012 by RPSJ and CSNJ)
Vs.
P.Sellammal
W/o. Poppy Reddy …Respondent/ Plaintiff
PRAYER: First Appeal filed under Section 96 of Civil Procedure Code to
set aside the judgment and decree dated 08.03.2011 in O.S.No.169 of 2009
on the file of Additional District Judge (Fast Track Court No.1), Salem.
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A.S. No.809 of 2012
For Appellants : Mr. P.Jagadeesan
For Respondent : Mr. G.K.Sekar
JUDGMENT
The defendants in the Suit aggrieved by the judgment and decree of the learned Additional District Judge, Fast Track Court-I, Salem dated 08.03.2011 in O.S.No.169 of 2009 have filed the present Appeal Suit. The Suit filed by the respondent plaintiff for partition of the suit properties and allotment of 1/3rd share and for separate possession was partly decreed by the Trial Court. In this judgment, the parties are referred to in the same ranking as before the Trial Court.
2. The case of the plaintiff is that the plaintiff is the daughter of one Perumal Reddy and Poppammal; the first and the second defendants are her brothers. The suit properties belong to their father Perumal Reddy and their mother Poppammal. Some of the properties came to her mother by way of release deed dated 26.10.1970 and some of the properties were purchased through two sale deeds dated 09.10.1970 and 20.08.1981 respectively. The said Perumal Reddy died in the year 2000 and Poppammal died on 2/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 21.06.2008 intestate leaving behind the plaintiff and the defendants as their legal heirs. Thereafter, misunderstanding arose between the plaintiff and the defendants. The plaintiff is living in her husband's place and therefore she demanded the defendants to divide the suit property into 3 equal shares, however the defendants did not accept. The plaintiff issued notice dated 08.07.2009 and thereafter filed the suit for partition in O.S.No.169 of 2009.
3. The suit was resisted by the defendants by filing a written statement. It is their case that as far as one of the items in the suit schedule property namely Survey No.223/1A is concerned, the same is not an exclusive property of the plaintiff's father but the property was purchased along with one Reggi Reddy. In the absence of Reggi Reddy as one of the party in the suit, partition cannot be prayed for in the Survey No.223/1A. It is therefore the further case that in respect of another survey number namely S.No.221/1, a part of the same was also purchased by the first defendant and therefore that is also wrongly included in the suit schedule property.
4. As far as the other properties are concerned, it is the case of the defendants that even during the lifetime of their father by way of oral 3/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 partition, their father had divided the entire suit property into two between both the brothers i.e., defendants 1 and 2 herein. Pursuant to the oral partition, they are in separate possession and enjoyment of the same and paying the kist. It is the further case of the defendants that there is one more property in Survey No.223/3 which is not included in the suit schedule property. This apart, there are also two wells and a 5 HP motor and a 3 HP motor in Survey No.223/1A and one tiled house and one thatched house in Survey Nos.300/2K and 300/2M respectively, which are left in the suit schedule property and therefore since the suit schedule is incomplete, the suit for partial partition to be dismissed.
5. On the said pleadings of the parties, the Trial Court framed the following issues:
i) Whether the plaintiff is entitled for partition and separate possession of 1/3rd shares in the suit properties?
ii) Whether the father of the plaintiff and defendants orally divided the suit properties after the marriage of the plaintiff in favour of the defendants?
iii) Whether the defendants have spent 50 lakhs of rupees for 4/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 levelling the suit properties and put up the houses separately?
iv) Whether the value of the suit properties is not correct?
v) Whether the description of properties is not correct?
vi) Whether the defendants are in possession and enjoyment of the suit property as per oral partition?
vii) To what relief, the plaintiff is entitled?
6. On the said issues, the plaintiff examined herself as P.W.1 and the pattas standing in the name of the plaintiff's father were marked as Ex.A1, the Adangal extract and Chitta for the fasli 1418 were marked as Ex.A2. The photocopy of the sale deed executed in favour of the plaintiff's mother Poppammal dated 19.10.1970 was marked as Ex.A3. Similarly, the certified copy of the partition / release deed executed in favour of Poppammal dated 26.10.1970 was marked as Ex.A4. The advocate notice dated 08.07.2009 was marked as Ex.A5 and the returned postal covers were marked as Ex.A6. Thereafter, the second defendant examined himself as D.W.1 and one Gopal Reddy, a neighbour was examined as D.W.2. On behalf of the defendants the sale deed executed in favour of Poppammal dated 19.10.1970 was marked as Ex.B1. Similarly, the partition / release deed executed in favour 5/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 of Poppammal dated 26.10.1970 was marked as Ex.B2. It can be seen that Ex.B1 and Ex.B2 are none other than Ex.A3 and Ex.A4. The sale deed executed by the 3rd party in favour of the first defendant is marked as Ex.B4. The receipts for payment of kist, totally 7 in numbers were marked as Ex.B5 series. The house tax receipts and electricity receipts were marked as Ex.B6 and Ex.B7 respectively.
7. Thereafter, the Trial Court proceeded to hear the learned counsel on either side and by the judgment and decree dated 08.03.2011, firstly accepted the case of the defendants in respect of Survey No.223/1A and held that on a perusal of the sale deed in respect of the property in Survey No.223/1A, it stands jointly in the name of Reggi Reddy and in the absence of Reggi Reddy as a the party to the suit, the same cannot be the subject matter for partition. Similarly, the Trial Court accepted the case of the defendants in respect of 9.9 ares in Survey No.221/1 as the same was purchased by the first defendant informed vide Ex.B3 and therefore excluded the said extent of property as not available for partition.
8. The Trial Court rejected the defence of the defendants in respect of 6/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 the other items of the property there was oral partition, as it was not by including their sister. It was neither proved nor will be binding on the plaintiff. Similarly, the Trial Court also rejected the contention of the partial partition by stating that the defendants had not produced any document and proved that there is one more property in Survey No.223/3 standing in the name of Poppammal. As far as the contention that the well and the motor were not expressly mentioned, the Trial Court held that in a Suit for partition, it is not possible to describe each and every item of the things available in a particular land and concluded that the suit property cannot be considered as a suit of partial partition. For all the above reasons, the Trial Court answered the issues in favour of the plaintiff and decreed the suit except in Survey No.221/1A and a part of 9.9 ares in Survey No.221/1 .
9. Aggrieved by the same, the present Appeal Suit is filed before this Court.
10. Heard Mr. P.Jagadeesan, learned counsel for the appellants/ defendants and Mr.G.K.Sekar, learned counsel for the respondent/ plaintiff. 7/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012
11. The learned counsel for the appellant/ defendants taking this Court through the pleadings as well as the evidence on record submitted that in this case, the father during his lifetime made the family arrangement by which the entire suit properties were divided between the brothers. As a matter of fact, the two brothers were allotted 2 equal shares and were enjoying the same, even during the lifetime of the father. Both the brothers are living in the suit properties, one in the existing tiled house and the other by putting up a hut.
12. The learned counsel further submitted that the first plaintiff was married away by giving jewels and other articles and the same was not duly taken into account by the Trial Court. This apart, the learned counsel would further submit that the defendants have specifically pleaded that there is yet another property in Survey No.223/3 which was omitted to be included even after filing of the written statement by the parties. The said Survey No.223/3 and the house and the wells etc., were omitted to be brought in the suit schedule property and the suit is hit as partial partition and ought to have been dismissed by the learned Judge.
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13. Per contra, the learned counsel appearing on behalf of the plaintiff would submit that it is not even the case of the defendants that the plaintiff was either present or consented for oral partition. The said oral partition is not at all proved by the defendants. The plaintiff is not a privy to any such oral partition and therefore the same would not in any manner bind her. The learned counsel would submit that the Trial Court has already excluded one item of the property and also a part of the property which is standing in the name of the first defendant and rightly decreed the suit in respect of the rest of the property. Without the description of the agricultural land, it goes without saying that it includes the well and electric motors which were present and attached there to.
14.1. It is further submitted that as far as the partial partition is concerned, firstly, the Trial Court has found that it has not been proved by the defendants that there is yet another property. In any event, he would submit that the latest judgment of this Court in the case of P.Arunachalam and others vs. M.Kalaimmal and another reported in (2022) 5 CTC 204, wherein this Court has taken a view that after partition suit should not be dismissed on the ground of partial partition and instead Court can pass a 9/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 decree for partition of those properties and prohibiting the plaintiff to file a second suit for partition in respect of other properties omitted to be claimed in the first Suit. The learned counsel relied upon paragraph no.11.2 of the said judgment and it is useful to extract the same, which reads as follows:
“11.2 The solution to this malady is not beyond reach:
The judicial patronage, a sort of a freebie of judicial time, hitherto provided for preserving the rule on Partial Partition must be revisited and redesigned to address the contemporary challenges facing judiciary. If judiciary has to acquire a certain degree of professionalism, it must start with a plan of action for conserving its time, and spending it well. This will provide the cutting-edge to its efficiency. Therefore, the present rule on Partial Partition is re-visited and modified, and it is as follows: Where the Plaintiff has the notice about the availability of certain properties not included in a Suit for Partition, and faces resistance to the Suit with a Defense founded on the rule of Partial Partition, and still omits to include the omitted properties, then in appropriate cases, the Courts must, instead of dismissing the Suit, pass a Decree for Partition of those properties which are before the Court, and simultaneously foreclose all options for a Suit for Partition of the properties omitted in the First Suit.” 10/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 14.2. The learned counsel also relied upon the judgment of the Madurai Bench of this Court in the case of J.Mahalakshmi (Died) and others vs. M.Gurunathan (Died) and others reported in 2021 (4) CTC 142 (Mad) for the proposition that the oral partition said to have been happened between the brothers unless acknowledged by the human conduct of sister by being present and sanctioned in her presence at the relevant point of time, it will not be binding on the plaintiff. The learned counsel more fully relied upon paragraphs nos.22 and 23 of the said judgment.
15. I have heard the rival submissions made on either side and perused the materials on record.
16. It may be seen that the defendants' plea in respect of Survey No.223/1A and the part of 9.9 ares of property in Survey No.221/1 has been accepted by the Trial Court and there is no cross appeal by the plaintiff in this regard. As far as the remaining properties are concerned, the relationship between the parties and the ownership of the property being that of Perumal Reddy and Poppammal is agreed by the parties. The only defence raised on behalf of the defendants is that even during the lifetime of 11/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 the father, there was an oral partition. Firstly, there is no evidence whatsoever regarding the same. Secondly, the said defence will not lead the defendants' case anywhere as it is not even the case of the defendants that the plaintiff was a party to the oral partition or family arrangement. Thirdly, when the properties were obtained by way of a sale deed even during the lifetime of their parents was to be in the name of Poppammal also, the pleading that Perumal Reddy made an oral arrangement will not in any manner advance the case of the defendants. Therefore, the said plea is liable to be rejected.
17. As far as the contention with regard to Survey No.223/3 is concerned, firstly, it may be seen that for the mere non-inclusion of the said Survey number, the entire suit need not be dismissed and as held in the latest judgment of this Court in the case of P.Arunachalam cited supra, it can be held that the plaintiff will not be permitted to bring in any fresh suit for the said Survey No.223/3 and the entire suit need not be dismissed. Secondly, as far as the non-inclusion of wells and electric motors are concerned, as rightly pointed out by the learned counsel appearing on behalf of the respondent / plaintiff, the agricultural land was added in the 12/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 suit schedule property. The non-inclusion of super structure and any improvements made thereto will not make the suit as one for partial partition and therefore the submission made on behalf of the learned counsel for the appellant is liable to be rejected. Further, structures such as house, hut, well and electric connections etc., can be taken into account appropriately at the time carrying out the partition of the property in the final decree proceedings. Therefore, none of the grounds raised by the appellants are with substance and therefore the Appeal Suit is liable to be dismissed.
18. This apart, the Trial Court has also categorically gone into the relevant patta and the title deeds of every item of the suit property and given its findings. As a matter of fact, there is no grievance raised in the Appeal Suit regarding the findings in respect of suit properties. In that view of the matter, I am in agreement with the findings of the Trial Court.
19. i) In view of my above findings, I answer the Issue No.1 that the plaintiff will not be entitled for a partition and separate possession of the suit properties including Survey No.223/1A and an extent of 9.9 ares in 13/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 Survey No.221/1.
ii) I answer the Issue No.2 that the defendants failed to prove that there was an oral partition during the lifetime of the father or otherwise, which would be binding on the plaintiff.
iii) For the finding third stated supra, the contention of the defendants that they have spent Rs.50 lakhs for levelling the suit property is also rejected.
iv) I answer that the plaintiff has correctly valued the suit properties as far the Issue No.5 is concerned merely because the omission to mention the wells and the electric motors by itself would not amount to mis- declaration of the suit property and the same can be taken into account at the time of valuation/ allotment of shares in the suit properties, in final decree proceedings.
v) For the answers given in respect of Issue No.2 and Issue No.6 are answered against the defendants and in favour of the plaintiff, in view thereof I am of the opinion that the Trial Court has rightly partly decreed the Suit.
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20. In the result:
i) The present Appeal Suit filed by the appellants/ defendants is without any merits and is accordingly dismissed;
ii) The judgment and decree dated 08.03.2011 made in O.S.No.169 of 2009 on the file of the Additional District Judge, (Fast Track Court No.1), Salem is confirmed;
iii) The respondent/ plaintiff will be precluded from bringing any further suit for partition in respect of any further properties of Perumal Reddy and Poppammal;
iv) The parties shall bear their own costs. Consequently, connected miscellaneous petitions, if any, are closed.
23.09.2022 Speaking (or) Non Speaking Order Index : Yes/ No mka To:
Additional District Judge, Fast Track Court No.1, Salem.
15/16 https://www.mhc.tn.gov.in/judis A.S. No.809 of 2012 D. BHARATHA CHAKRAVARTHY, J.
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