Madras High Court
Ramalingam vs Devaki on 9 December, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.12.2021
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.105 of 2012
and
M.P.No.1 of 2012
Ramalingam .. Appellant
Versus
Devaki .. Respondent
PRAYER:This Second Appeal has been filed under Section 100 of C.P.C.,
against the judgment and decree dated 25.08.2011 made in A.S.No.19 of
2011 on the file of the Principal Sub-Court Erode District, confirming the
judgment and decree dated 23.02.2011 made in O.S.No.708 of 2008 on
the file of the IInd Additional District Munsif Court, Erode District.
For Appellant :: Mr.I.C.Vasudevan
For Respondent :: Mr.M.Guruprasad
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
Notice of motion was ordered by this Court, on 30.01.2012.
2. The respondent/plaintiff and the appellant/defendant are
husband and wife. During the subsistence of marriage, they purchased
the suit property as joint owner. Subsequently, due to the difference of
opinion that arose between them, wife filed H.M.O.P.No.172 of 2005
before the Principal Sub Court, Erode. After contest, O.P was decreed and
divorce was granted on 12.12.2006. Hence, the divorced wife filed suit
for partition of her undivided share and the same was decreed.
On appeal, in A.S.No.19 of 2021, the said appeal was dismissed. Hence,
the Second Appeal.
3. Learned counsel for the respondent contended that pending
second appeal, in the absence of final decree, proceedings have been
initiated and Advocate Commissioner was appointed who also filed report
after inspecting the site. Since in Miscellaneous Petition, the stay of
passing of final decree has been granted, no final decree has been
passed so far.
4. The respondent/plaintiff wife filed the above suit in
O.S.No.17/2008 claiming partition on the strength Ex.A1 sale deed dated
26.02.2000 wherein, both the plaintiff and the defendant have purchased
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the property.
5. The case of the plaintiff is that the respondent/plaintiff and
appellant/defendant are husband and wife and they purchased the
property in the joint name and got married on 01.12.1988 and separated
on 26.02.2000. Subsequently, wife has filed H.M.O.P.No.172/2005 for
divorce and the same was allowed. During the subsistence of the
marriage, the first petitioner purchased property under Ex.A1 and now he
seeks partition of the same.
6. The relief of partition was resisted by the appellant/defendant
on the ground that sale consideration has been paid by the husband.
No document has been adduced or produced before the Court, except
the oral evidence of D.W.1 and D.W.2. Both the Courts below, applying
the principles of Section 19 of the Indian Evidence Act, the oral evidence
cannot be accepted against the terms of the documentary evidence. In
the absence of any explanation to show that the sale consideration in
respect of the suit property, was exclusively made by the appellant-
husband, and allowed the relief.
7. After perusing the evidence of D.W.1 and D.W.2, I find that the
oral evidence of D.W.1 runs contrary to the plea. Furthermore, in Ex.A1,
it is a joint purchase and hence the respondent/plaintiff is entitled for
half share and hence the preliminary decree granted by both the Courts
https://www.mhc.tn.gov.in/judis
below does not warrant interference.
8. In the result,
(i) This Second Appeal is dismissed. No costs.
(ii) The judgment and decree of the First Appellate Court are
confirmed. Consequently, connected M.P is closed.
09.12.2021
nvi
To
1. The Principal Sub-Court Erode District
2. The IInd Additional District Munsif Court, Erode District.
https://www.mhc.tn.gov.in/judis
RMT.TEEKAA RAMAN,J.,
nvi
S.A.No.105 of 2012 and
M.P.No.1 of 2012
https://www.mhc.tn.gov.in/judis
09.12.2021
https://www.mhc.tn.gov.in/judis
