Madras High Court
Saratha Amma vs Savithiri Amma on 11 August, 2021
1 S.A.(MD)NO.224 OF 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.224 of 2011 and
M.P.(MD)No.1 of 2011
1. Saratha Amma
2. Latha Kumari
3. Sugathakumari(Died) ... Appellants/Appellants/
Defendants 4 to 6
4. S.Subhadhra Devi
5. A.S.Shreejith (Minor)
6. Athira (Minor)
(Appellants 4 to 6 are brought on record as LRs. of the
deceased 3rd appellant vide Order dated 17.03.2016 in M.P.
(MD)No.1 of 2013.)
(Appellants 5 and 6 Minors are represented by
their father R.J.Ajaynath) ... Appellants 4 to 6
Vs.
1. Savithiri Amma
2. Santhakumari Amma ... Respondents/Respondents 1&2/
Plaintiffs 1 & 2
3. Bhakulan Nair
4. Prabhavathi Amma
5. Lekshmi Bai ... Respondents/Respondents 3 to 5/
Defendants 1 to 3
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree passed in
A.S.No.26 of 2007 dated 26.11.2009 on the file of the Sub
Judge, Kuzhithurai, confirming the Judgment and Decree
passed in O.S.No.431 of 2004 dated 11.10.2006 on the file of
the Principal District Munsif, Kuzhithurai and allow the
second appeal.
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2 S.A.(MD)NO.224 OF 2011
For Appellants : Mr.C.Kishore,
for Mr.K.Sreekumaran Nair.
For R-1 & R-2 : Ms.J.Anadhavalli
***
JUDGMENT
The contesting defendants in O.S.No.431 of 2004 on
the file of the Principal District Munsif, Kuzhithurai, are the
appellants in this second appeal.
2. Respondents 1 and 2 herein filed the said suit
seeking the relief of partition. The case of the plaintiffs is that
the suit property measuring 34½ cents belonged to the
tarward of Bhasurangi Amma who is the mother of the
plaintiffs and defendants 1 to 5. Bhasurangi Amma had passed
away. Since she left behind the son(first defendant) Bhakulan
Nair and six daughters, each of them will be entitled to 1/7th
share in the suit property. The plaintiffs came to know that an
illegal alienation was made in favour of the sixth defendant
Sugatha Kumari and therefore she was also made as the
defendant. Since the request for partition was not complied
with, the suit came to be laid.
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3 S.A.(MD)NO.224 OF 2011
3. Defendants 4 to 6 contested the suit and filed their
written statement. They controverted all the suit averments.
According to them, the suit property is not the tarward
property of Bhasurangi Amma. According to them, this was
her independent self-acquired property and that she had
settled the same in favour of defendants 4 and 5 vide
settlement dated 03.03.1976(Ex.B.3). In turn, defendants 4
and 5 have alienated the property in favour of the sixth
defendant vide Ex.B.5 dated 28.04.1997. The contesting
defendants have been enjoying the suit property in their
independent and exclusive capacity since 1976 and therefore,
the suit is also hit by adverse possession.
4. Based on the rival pleadings, the trial Court framed
the necessary issues. The second plaintiff examined herself as
P.W.1 and marked Ex.A.1 to Ex.A.7. On behalf of the sixth
defendant, her husband was examined as D.W.1. Ex.B.1 to
Ex.B.30 were marked. After considering the evidence on
record, the trial Court by judgment and decree dated
11.10.2006 granted preliminary decree allotting 2/7th share
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4 S.A.(MD)NO.224 OF 2011
among the total extent of 17¼ cents in the suit property.
Aggrieved by the same, the contesting defendants filed
A.S.No.26 of 2007 before the Sub Court, Kuzhithurai.
5. The plaintiffs also filed cross appeal therein. After
considering the rival contentions, the first appellate Court by
the impugned judgment and decree dated 26.11.2009,
dismissed the appeal as well as the cross appeal. Challenging
the same, this second appeal came to be filed.
6. The learned counsel appearing for the appellants
submitted that the Court below erred in holding that 17 ¼
cents in the suit property is a tarward property. According to
him, the entire suit property was the absolute property of
Bhasurangi Amma. He pointed out that Bhasurangi Amma had
dealt with the property vide Ex.B.1. According to
Marumakkathayam Law that prevailed during the relevant
time, consent of the members would be required for selling
the immovable property or mortgaging the possession for
more than twelve years or leasing out for more than twelve
years. The learned counsel appearing for the appellants would
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5 S.A.(MD)NO.224 OF 2011
point out that in Ex.B.1 no such consent from the members of
the tarward was taken. Bhasurangi Amma had been described
as Karnavathi. The suit property that is covered under Ex.B.1
was not referred to as tarward property. From this single
circumstance, the learned counsel would contend that the
property in question is not the tarward property. He would
also point out that Marumakkathayam Law was abolished by
Kerala Joint Hindu Family System (Abolition) Act, 1975. He
contended that the Courts below erred in granting even
partial relief to the plaintiffs.
7. Per contra the learned counsel appearing for the
plaintiffs/contesting respondents submitted that the impugned
judgment and decree do not call for any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. The suit property presently measures 31 cents. The
Courts below noted that Bhasurangi Amma got only 17¼ cents
in the partition vide Ex.A.2 partition deed(07.09.1110 M.E.).
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6 S.A.(MD)NO.224 OF 2011
The remaining extent of the land in the suit schedule came to
her by virtue of relinquishment made by the sister and son of
Bhasurangi Amma. Therefore, the Courts below rightly treated
that the remaining extent of property as an independent
property of Bhasurangi Amma. The plaintiffs have not filed any
second appeal, questioning the same.
10. Therefore, the only question which concerns this
Court is whether Courts below were correct in holding that
17¼ cents of the suit property is the tarward property or not.
As rightly pointed out by the learned counsel appearing for
the respondents, in the partition suit filed by Bhakulan Nair in
O.S.No.17 of 1998, the present appellants filed written
statement on 08.10.1998(Ex.A.6 and Ex.A.7) in which they
took the stand that the property in question is a tarward
property. Since they have taken such a categorical stand in
the proceedings between the first defendant Bhakulan Nair
and Karnavathi Bhasurangi Amma, it is not open to the
appellants to take a contra stand in the present proceedings.
11. The learned counsel appearing for the appellants
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7 S.A.(MD)NO.224 OF 2011
would contend that an erroneous concession on an aspect of
law cannot operate as an estoppel. I cannot agree with the
said contention. Whether the property in question is a tarward
property or not is predominantly a question of fact. Therefore,
the Courts below were justified in anchoring their conclusion
on the stand taken by the appellants vide Ex.A.6 and Ex.A.7.
12. As rightly pointed out by the learned counsel
appearing for the respondents, the plea of adverse possession
now canvassed before this Court also does not have any merit.
In the written statement filed by the appellants, the
ingredients which make out a case for adverse possession are
wholly absent. That apart, defendants 4 and 5 had not entered
the witness box to sustain the plea of adverse possession. Only
the husband of the sixth defendant examined himself as P.W.1.
Admittedly, the sixth defendant obtained right in the suit
property only by virtue of Ex.B.5 sale deed dated 28.04.1997.
Therefore, the testimony of D.W.1 cannot in any way make out
a case for adverse possession. The Courts below have
correctly approached the issue. No substantial question of law
arises for consideration. I do not find any merit in this second
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8 S.A.(MD)NO.224 OF 2011
appeal. This second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
11.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Sub Judge,
Kuzhithurai.
2. The Principal District Munsif,
Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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9 S.A.(MD)NO.224 OF 2011
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.224 of 2011
11.08.2021
https://www.mhc.tn.gov.in/judis
