Madras High Court
Rajaboopathy vs Kanaga .. 1St on 5 January, 2021
S.A (MD) No.709 of 2020 and
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A (MD) No.709 of 2020 and
C.M.P(MD)No.7286 of 2020
1.Rajaboopathy
2.Kannan
3.Asokan .. Appellants / defendants 8, 10 and 11
Vs.
1. Kanaga .. 1st respondent / plaintiff
2.Shanmugaraj
3.Arirajan
4.Veni
5.Amutha
6.Moorthy
7.Prabhu
8.Radha
9.Muthunachiyar
10.Susila
11.Thillainayagi
12.Selvakumar
13.Naganatha Sethupathi
14. Malaiyarasu ... Respondents 2 to 14 / defendants
Prayer: Second Appeal filed under Section 100 CPC against the Judgment
1/8
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S.A (MD) No.709 of 2020 and
and Decree made in O.S.No.75 of 2014 on the file of the District Munsif
Court, Paramakudi, dated 06.12.2018 confirmed in Judgment and Decree
made in A.S.No.06.2019 on the file of the Sub Court, Paramakudi, dated
19.11.2019.
For Appellants : Mr.P.R. Prithiviraj
For 1st respondent : Mr. D.Sasikumar
JUDGMENT
The appellants, who are the defendants 8,10 and 11 in
O.S.No.75 of 2014, on the file of the District Munsif Court, Paramakudi,
have come up with this Second Appeal challenging the decree for
partition, which was concurrently granted by the Courts below in favour of
the first respondent / plaintiff declaring that she got 1/8th share in the suit
properties.
2. The suit was filed by the first respondent herein claiming
1/8th share contending that Item Nos.1 and 2 of the suit properties were
purchased by her mother viz., Ulagammal in the year 1954 and the Item
Nos. 3 and 4 belonged to the mother ancestrally. It is also pleaded that
Ulagammal married one Chella Thevar and she had four children out of
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S.A (MD) No.709 of 2020 and
the said marriage. The said Ulagammal after the death of Chella Thevar,
married one Venguchamy Thevar and the defendants 8 to 11 were born
out of the said marriage. One of the daughters of Ulagammal and
Chellathevar viz., Ponnuthai died and her legal heirs were impleaded as
defendants 2 to 6. On the death of Ulagammal, she claimed 1/8th share in
the suit properties.
3. The defendants 1,2,4 and 7 filed written statement claiming
that they are also entitled to the share in the suit properties. The
defendants 8, 10 and 11 filed separate written statement contending that
Ulagammal was entitled to only ½ share in the Item No. 1 of the suit
property. It was further claimed that Ulagammal herself during her life
time partitioned the properties in favour of the children of two husbands.
4. In the above said partition, Item Nos.1 and 2 were allotted
to the children born through the second husband viz., Venguchamy Thevar
and the Item Nos.3 and 4 were allotted to the children born through
Chella Thevar. It is their further contention that after the death of
Ulagammal, there was an agreement between the parties to continue to
enjoy the properties as per the allotments made by Ulagammal. Certain
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S.A (MD) No.709 of 2020 and
statements made by the defendants, after the death of Ulagammal were
also cited as proof of the partition.
5. At trial, the plaintiff was examined as PW.1 and Exs.A1 to
A7 were marked. The 8th defendant was examined as DW.1; 12th
defendant was examined as DW.2; 1st defendant was examined as DW.3
and 7th defendant was examined as DW.4 and Exs.B1 to B8 were marked.
6. During trial, the 8th defendant introduced a Will dated
29.01.1991, said to have been executed by Ulagammal bequeathing her ½
share in the first item to him absolutely and the said Will was marked as
Ex.B5. Apart from the Will, Exs.B1 to B4, B6 to B8 were also marked.
Exs. B4 and B6 are revenue records and the Exs.B7 and B8 are sale deeds
executed by the 8th defendant.
7. The trial Court upon the consideration of the evidence on
record concluded that the 8th defendant has miserably failed to prove the
Will by examining any one of the attesting witnesses. The absence of plea
regarding the existence of the Will in the written statement filed by the 8th
defendant has also been taken as a ground by the Trial Court to disbelieve
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S.A (MD) No.709 of 2020 and
the Will. The oral partition set up by the 8th defendant was also
disbelieved, in view of the finding in earlier suit filed by the 9th defendant,
in the present suit. On the above conclusion, the trial Court decreed the
suit in respect of ½ share in the item No. 1 and in the item Nos. 2 to 4
granting 1/8th share to the plaintiff. Aggrieved, the defendants 8, 10 and
11 preferred an appeal in A.S.No. 6 of 2019 and the plaintiff preferred a
cross objection. The lower appellate Court upon the reconsideration of
the evidence on record agreed with the conclusion of the trial Court and
dismissed the appeal. Hence, the Second Appeal.
8. I have heard Mr. Prithivi Raj learned counsel appearing for
the appellants.
9. The learned counsel appearing for the appellants would
vehemently contend that the Courts below were not right in disbelieving
the claim of the oral partition. He has also pointed out that the revenue
records has been mutated in the name of the 8th defendant and therefore,
the Courts below should have accepted the oral partition.
10. The Courts below have considered the revenue records as
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S.A (MD) No.709 of 2020 and
well as finding of the trial Court in the previous suit in O.S.No.60 of 2014
and reached the conclusion that the oral partition pleaded by the
appellants has not been established. In the absence of any other
supporting evidence, mutation of revenue records in the name of the
sharers cannot constitute sufficient evidence to establish the oral partition.
The lower Appellate Court also considered the evidence and accepted the
findings of the trial Court. Despite his best efforts, the learned counsel
appearing for the appellants is unable to demonstrate that the factual
findings of the Courts below are perverse. He is unable to point out any
questions of law, much less a substantial question of law in this appeal.
11. Accordingly, this Second Appeal is dismissed without
being admitted. No costs. Consequently, the connected Miscellaneous
Petition is closed.
05.01.2021
Index : yes/no
Internet : yes/no
trp
http://www.judis.nic.in
S.A (MD) No.709 of 2020 and
To
1. The District Munsif Court, Paramakudi,
2. The Sub Court, Paramakudi.
http://www.judis.nic.in
S.A (MD) No.709 of 2020 and
R.SUBRAMANIAN,J.,
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S.A (MD) No.709 of 2020
and
C.M.P(MD)No.7286 of 2020
05.01.2021
http://www.judis.nic.in
