Madras High Court
Dhanalakshmi vs Soliyappan on 23 July, 2021
S.A.(MD)No.954 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.954 of 2011
1.Dhanalakshmi
2.Subramani ... Plaintiffs 1 & 2 / Respondents 1 & 2/
Appellants
-Vs-
1.Soliyappan
2.Rajeswari ... Defendants 1 & 2 / Respondents 3 & 4/
Respondents 1 & 2
3.Palaniappan @ Palanisamy
4.Kaliyammal ... Defendants 3 & 4 / Appellants 1 & 2/
Respondents 3 & 4
5.Selvi
6.Ramadurai ... Defendants 5 & 6 / Respondents 5 & 6/
Respondents 5 & 6
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 15.02.2011 in A.S.No.12 of
2010 on the file of the District Judge, Karur in reversing the judgment and
decree dated 04.12.2009 made in O.S.No.177 of 2006 on the file of the
Principal Subordinate Judge, Karur.
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S.A.(MD)No.954 of 2011
For Appellant : Mr.M.P.Senthil
For R1 : No appearance
For R2 to R6 : Mr.Suresh
for Mr.E.K.Kumaresan
JUDGMENT
The plaintiffs in O.S.No.177 of 2006 on the file of the Principal
Subordinate Judge, Karur, are the appellants in this second appeal.
2. The suit was filed for the relief of partition. The genealogy is as
follows:
Muthusamy Gounder (Died)
Palaniappa Gounder Periyasamy Gounder(died)
Ramayee
Soliyappan (D1) Palaniappan (D3) Pappayee (Died)
Kaliyammal (D4) Rajeswari (D2)
Dhanalakshmi Subramani
(P1) (P2) Selvi Anandraj Ramadurai
(D5) (Died) (D6)
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S.A.(MD)No.954 of 2011
3.The plaintiffs are the son and daughter of Soliyappan. The
contention of the plaintiffs is that the suit properties originally belonged to
Muthusamy Gounder / their great-grandfather. Muthusamy Gounder had
two sons namely Palaniappa Gounder and Periyasamy Gounder. There was
a partition between the two sons. Palaniappa Gounder is no longer in the
scene. According to the plaintiffs, they are also coparceners and that they
are entitled to 4/36th share each in the suit items which are 29 in number.
According to them, the properties of Periyasamy Gounder were not divided
at all. Of-course, for the sake of convenience, there has been a sort of
separate enjoyment. But then, there was no formal partition by metes and
bounds. With these averments, the suit came to be instituted. The first
defendant, the father of the plaintiffs remained exparte and did not contest
the proceedings. The second defendant Rajeswari who is the daughter of
Pappayee also remained exparte and did not contest the proceedings. The
other defendants filed their written statement controverting the plaint
averments. Their defence was that a oral partition took place between
Soliyappan / first defendant and Palaniappan / third defendant way back in
the year 1977. It was pleaded that certain items were allotted to the first
defendant Soliyappan and certain items were allotted to Palaniappan. A few
items such as well and pathway were kept in common. After partition,
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S.A.(MD)No.954 of 2011
separate pattas were also issued in their respective names. Since the
partition had already taken place, the present suit is not maintainable.
Based on the rival pleadings, the trial Court framed the necessary issues.
The first plaintiff Dhanalakshmi examined herself as P.W.1 and one
Periyasamy was examined as P.W.2. Ex.A1 to Ex.A3 were marked. Ex.A1
is the genealogy, while Ex.A2 is the wedding invitation card of the first
plaintiff. Ex.A2 was probably marked to show that she was an unmarried
daughter, when Tamil Nadu Act 1 of 1990 came into force whereby an
unmarried daughter was also recognized as coparcener. On the side of the
defendants, the third defendant examined himself as D.W.1 and one
Rajendran examined himself as D.W.2. Ex.B1 to Ex.B14 were marked.
After considering the evidence on record, the trial Court passed preliminary
decree granting 8/36th share in the suit property. Liberty was given to work
out the mesne profits in separate proceedings to be filed under Order 20
Rule 12 of C.P.C., Challenging the judgment dated 04.12.2009 granting
preliminary decree, the contesting defendants 3 and 4 filed A.S.No.12 of
2010 before the District Judge, Karur. By judgment and decree dated
15.02.2011, the appeal was allowed and the suit was dismissed.
Challenging the same, this second appeal came to be filed.
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S.A.(MD)No.954 of 2011
4. The second appeal was admitted on the substantial questions of
law:-
“(a) Whether the finding of the learned Appellate Judge in
reversing the well considered judgment of the trial Court without
assigning reasons for not accepting the finding of the trial Court is
sustainable in law? and
(b) Whether in law the learned Appellate Judge is right in
placing the burden on the plaintiff and by picking holes in the
plaintiff's case and taking adverse inference against the plaintiff and
giving finding in favour of the third defendant in respect of the oral
partition pleaded by him?”
5. Heard the learned counsel on either side.
6. The learned counsel appearing for the appellants submitted that the
plaintiffs are very much members of the coparcenary comprising the
descendants of Periyasamy and all that they had asked for was only their
share in the properties. It is true that the revenue records in respect of most
of the items are standing in the individual names of the first defendant and
the third defendant. But he would urge that the right of partition cannot be
defeated on the strength of entries in the revenue records. He would state
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S.A.(MD)No.954 of 2011
that the first appellant being a daughter, her right cannot be defeated by
invoking oral partition. He pointed out that though the oral partition is
said to have taken place in the year 1977 in the presence of panchayadhars,
not even a single independent witness was examined.
7. The learned counsel placed reliance on the decisions reported in
1999 (3) CTC 650 (Guruvammal and another Vs. Subbiah Naicker),
2009(3) L.W. 622 (Ramulu Ammal Vs.Ramachandra Reddy) and 2020 (5)
CTC 302 (Vineeta Sharma Vs. Rakesh Sharma and others) in support of his
contentions.
8. The learned counsel appearing for the contesting respondents
submitted that no substantial question of law really arises for determination
in this appeal.
9. I carefully considered the rival contentions and went through the
evidence on record. It is true that the defence taken by the contesting
defendants is one of oral partition. There can be no dispute that law
recognizes oral partition. However, the said plea will have to be
affirmatively established through convincing evidence. The only question
that arises for determination is whether the defendants have really proved
that the oral partition took place between Soliyappan and Palaniyappan in
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S.A.(MD)No.954 of 2011
the year 1977. The appellants / plaintiffs are the children of Soliyappan.
The other party to the oral partition namely Palaniappan had examined
himself as D.W.1. But Soliyappan did not enter the witness box to contest
the theory of oral partition pleaded by the defendants.
10. The learned counsel appearing for the respondents pointed out
that the plaintiff/P.W.1 herself had admitted that items 4 to 6, 11 to 14, 22,
25, 26 and 28 are in the names of her father Soliyappan. In fact, from the
boundary description given in the suit schedule, one can very easily come to
the conclusion that the properties are in the separate enjoyment of the
parties. For instance, Item No.10 is described as lying to the west of
Soliyappan's land. Item No.4 is described as lying to the south of
Palanisamy @ Palaniappan's land / D3. Thus, from the description given in
respect of the items, one can safely come to the conclusion that the
properties had been divided between the first defendant and the third
defendant. The revenue records also indicate that pattas have been
separately issued in the names of the first defendant and the third defendant.
It is easy to remark that the revenue records cannot be decisive of the issue.
11. But then, I fail to understand what other document can be
produced before the Court to show that there was oral partition between
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S.A.(MD)No.954 of 2011
them and that after partition, the properties are being enjoyed separately.
The learned counsel appearing for the contesting respondents would show
that a simple arithmetic would indicate that the first defendant was totally
given 4.44 acres, while the third defendant was allotted 4.66 acres. There
appears to have been a broad equality in the matter of division of the
properties. Of-course, some items are still kept in common. But they are
none other than the pathways and the wells. The first appellate Court had
given clear reasons for differing with the approach of the trial Court. The
first appellate Court had noted that the first defendant chose to remain
exparte and therefore, the plaintiffs could not rebut the defence taken by the
defendants by examining D.W.1 to prove the oral partition. The first
appellate Court has also stated that the plaintiffs cannot raise the plea that
Pappayee daughter of Periyasamy Gounder was totally ignored in the oral
partition that is said to have been taken place in the year 1997. If that be so,
Pappayee during her life time could have challenged even Pappayee's
daughter Rajeswari who was impleaded as the second defendant chose to
remain exparte. When Rajeswari chose to remain silent, it is not for the
plaintiffs to bat for her. The first appellate Court has also rightly observed
that failure to examine the panchayatdars will not invalidate the defence of
oral partition. Admittedly, the suit was filed only in the year 2006. The
oral partition is said to have taken place in the year 1977, that is some 29
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S.A.(MD)No.954 of 2011
years prior to the filing of the suit. Therefore, non examination of
Panchayatdars is not fatal. In any event, D3 who claimed to be a party to
the oral partition entered the witness box and faced cross examination at the
hands of the plaintiffs.
12. The first appellate Court rightly came to the conclusion that oral
partition has been proved by the third defendant. I answer the substantial
questions of law against the appellants. I do not find any merit in the
appeal. The second appeal stands dismissed. No costs.
23.07.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The District Judge, Karur.
2.The Principal Subordinate Judge, Karur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.954 of 2011
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.954 of 2011
23.07.2021
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