Madras High Court
Panchatcharam vs Jayakodi on 10 December, 2021
S.A.No.469 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.469 of 2017
and C.M.P.No.11673 of 2017
Panchatcharam ... Appellant
Vs.
1. Jayakodi
2. Rajendran ... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree in A.S.No.53 of 2016 on the file of the III
Additional District and Sessions Judge, Cuddalore at Vridhachalam, dated
27.04.2017 in confirming the judgment and decree in O.S.No.40 of 2012 on the
file of the Additional Subordinate Judge, Vridhachalam, dated 03.08.2016.
For Appellant : Mr.V.Raghavachari
For Respondents : Mr.J.Antony Jesus
-----
Page 1 of 10
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
JUDGMENT
Aggrieved over the concurrent findings of the Court below, the
appellant / plaintiff has preferred the above Second Appeal.
2. The property originally belonged to the plaintiff's father Kandhan.
Kandhan had three sons viz., the plaintiff, Kadhirvel and Somasundaram.
Somasundaram died intestate in the year 2004 and he was unmarried. After the
death of their father Kandhan, the elder son, Kadhirvel was acting as Manager
of the family and purchased a property in S.No.42/2 out of the income of the
joint family. Like that, he has purchased a property in S.No.202/7 in the name
of his wife. The first defendant is the wife of Kadhirvel and she has no
independent income to purchase the suit properties. The properties were
purchased from and out of joint family income. On 13.07.1995, Kadhirvel
purchased a house property in S.No.112/1A in Ma.Pudaiur Village, Thittakudi
Taluk. Those properties were considered as joint family properties and jointly
enjoyed by all the brothers.
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
3. While the matter stood thus, the wife of the plaintiff filed a suit in
O.S.No.82 of 1996 for maintenance. On appeal in A.S.No.62 of 2003, she got
an order from the Appellate Court and created charge over the suit properties to
an extent of 1/3rd share of the plaintiff. In other words, the Court has decided
that the brothers are entitled to 1/3rd share each in the suit properties, but, there
is no further appeal. Since their brother Somasundaram died intestate his 1/3rd
share devolved on other two brothers. Thus, the plaintiff is entitled to one half
of the shares in all the properties. In spite of demand, the first defendant has
refused to divide the property and allot the share to the plaintiff. Therefore, he
filed a suit for partition.
4. In the written statement, the first defendant denied the averments
and contended that the properties mentioned as 1 to 4 in Item No.1 were sold by
the plaintiff and his brother Somasundaram to the extent of 2/3rd of the share in
favour one Azhagammal by virtue of a registered sale deed dated 26.06.1986.
On 29.11.1991, she purchased the property from the said Azhagammal and that
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
she is an independent owner insofar as the properties mentioned as 5 and 6 of
Item No.1 were purchased in the name of her son on 13.08.2001 out of the
money by selling her jewels. Item 7 of the first schedule was sold by father of
the plaintiff as early as in the year 1940 in favour of one Marikutti. That
property was not available for partition. Insofar as the Item No.2 of the schedule
property, it was allotted to the share of her husband/Kathivel in the partition
happened in the year 1986 before the Panchayathars of the Village and was sold
by the plaintiff. In respect of the 3rd item of the schedule property, it was
purchased by the first defendant on 13.07.1995 from one Papa. The 4th item of
the property was in possession of her husband and he built up a stone house
and obtained electricity connection and was continuously enjoying the same by
paying Kists to the Government and thus, she is entitled to 4th item of the
property also and the plaintiff is not entitled to any share in the properties and
he cannot claim any partition.
5. The Trial Court framed appropriate issues and after considering the
elaborate evidence, dismissed the suit. On appeal, the same was confirmed.
Aggrieved over the same, the present Second Appeal has been preferred.
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
6. Heard the learned counsel appearing for both the parties.
7. The admitted facts are that the suit properties were originally
owned by one Kandhan. In the year 1986, the plaintiff and his late brother sold
four properties in the first item to one Azhagammal vide Ex.B1 to the extent of
1 Acre 37 Cents. The sale was admitted by the plaintiff. However, the property
was repurchased by the first defendant by virtue of a registered sale deed dated
29.11.1991 vide Ex.B3. Even though it is contended by the plaintiff that the
property was purchased in the name of the first defendant by his brother after a
period of five years, absolutely, there is no evidence to show that it was
purchased out of the joint family income. In fact, there is no evidence to show
that there was income to the joint family. On the other hand, the sale on
26.06.1986 vide Ex.B1 itself shows that the property was partitioned and the
plaintiff and his brother sold their respective shares to a third party. The
division of status in the joint family is well proved vide Ex.B1. Therefore, the
contention that it was purchased out of their joint family income in the name of
the first defendant, who is the wife of the elder brother does not augur well. In
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
respect of properties in Serial Nos. 5 and 6 and item No.1, they were purchased
vide Ex.B4 and Ex.B5, dated 13.08.2001 in the name of the first defendant's
son. He died intestate and therefore, the first defendant inherited the property
and was enjoying. This factum is also not denied. In respect of property in
Serial No.7 of Item No.1, it was sold in the year 1940 itself in favour of one
Mani by the original owner namely, Kandhan, father of the plaintiff. That
property is not available for partition. Thus, Item No.1 of the properties is not
available for partition.
8. Insofar as, Item No.2 of the suit schedule, it is contended by the
first defendant that out of the partition happened in the year 1986, this property
was allotted to her husband Kadhirvel in lieu of the property sold by the
plaintiff in Venganoor Village. Even though the statement was denied by the
plaintiff, no evidence was produced by him that it still lies with joint family
without there being any partition. Insofar as Item No.3 of the properties, it was
purchased by the defendant on 13.07.1995 vide Ex.B6, a registered sale deed.
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
There is no evidence by the plaintiff to show that this property was also
purchased out of the joint family income. But, from the evidence, it is seen that
there was division of status in the joint family in the year 1986 itself and the
brothers had parted ways. Therefore, it cannot be presumed that these
properties were purchased by the first defendant from and out of joint family
income. Insofar as the income of the first defendant is concerned, it is
categorically deposed that the first defendant was working as Junior Engineer in
Highways Department and was earning salary and that she was working in the
Leather Factory and earning a monthly salary and that they have purchased the
properties from their income. Apart from that, there is evidence to show that she
hails from well off family and her father supported to purchase the property.
9. In that view of the matter, it is categorically proved that the
properties in Item Nos.1 to 3 are independent properties of the first defendant.
In respect of Item No.4 of the suit properties, Ex.B12 to Ex.B20 were marked to
prove the continuous possession and enjoyment of the first defendant. Her
husband Kathirvel had put up the stone house and obtained electricity
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
connection and was paying Kists vide Ex.B12 to Ex.B20. This factum also is
not disproved by the plaintiff to claim that this property was available for
partition and in the absence of any evidence to show that it is a joint family
property, the claim for partition is sustainable.
10. The learned counsel for the appellant would place his reliance on
Ex.A5, which is the judgment given by the First Appellate Court in a suit filed
by the plaintiff's wife for maintenance, wherein, a charge was created in respect
of 1/3rd share of the plaintiff in the joint family properties. But on a perusal of
the judgement, it is noted that the first defendant's husband has stated the fact
that the property was sold as early as in 1986 by the plaintiff himself which was
not considered and the First Appellate Court has mechanically created the
charge over the property which was sold by the plaintiff in favour of third
parties. Therefore, this judgment will not come in aid to the case of the
appellant.
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
11. In the considered opinion of this Court, the Court below had
rightly arrived at a concurrent conclusion on facts that the plaintiff has failed to
prove that the properties belonged to the joint family and that he is not entitled
to partition. Therefore, I do not find any merits in the Second Appeal for
admitting the same and hence, the Second Appeal stands dismissed at the
admission stage itself. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
10.12.2021
asi
To
1. The III Additional District and Sessions Judge,
Cuddalore at Vridhachalam.
2. The Additional Subordinate Judge, Vridhachalam.
https://www.mhc.tn.gov.in/judis
S.A.No.469 of 2017
M. GOVINDARAJ, J.
asi
S.A.No.469 of 2017
and C.M.P.No.11673 of 2017
10.12.2021
https://www.mhc.tn.gov.in/judis
