Madras High Court
Ramasamy Karayalar vs Sudalai @ Chellakutti Karayalar on 26 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD).No.732 of 2013
Ramasamy Karayalar ... Appellant
Vs
Sudalai @ Chellakutti Karayalar ... Respondent
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
against the reversing Judgement and Decree passed in A.S.No.67 of 2011 on
the file of the Additional District Judge Cum Fast Track Court No.II,
Thoothukudi dated 19.10.2011 filed against the Judgement and Decree in
O.S.No.206 of 2008 on the file of the District Munsif Srivaikuntam dated
29.06.2010.
For Appellant : Mr.Gangai Amaran
For Respondents : No appearance
JUDGMENT
The plaintiff in O.S.No.206 of 2008 on the file of the learned District
Munsif, Srivaikuntam, is the appellant in this Second Appeal. The plaintiff
filed a suit against his brother Sudalai.
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2. According to the plaintiff, the suit 'A' Schedule properties are the
ancestral properties of the parties. The second schedule property was
purchased by the plaintiff out of his own earnings vide Ex.A3 dated
16.07.1979. Muthaiya Karayalar, the father of the parties passed away in
the year 1969, without writing any Will. The specific stand of the plaintiff is
that the mother and sister have relinquised their share in the properties. The
plaintiff filed the said suit seeking allotment of his half share in the 'A'
Schedule property and for permanent injunction in respect of 'B' Schedule
property.
3. The defendant filed written statement controverting the plaint
avernments. The plaintiff examined himself as P.W.1 and one Arumugam
was examined as P.W2 and Exs. A1 to A10 were marked. The defendant
examined himself as DW1 and two other witnesses were also examined and
Exs.B1 to B7 were marked.
4. After a consideration of the evidence on record, the trial Court vide
judgment and decree dated 29.06.2010 granted preliminary decree allotting
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half share in schedule 'A' property. As regards schedule 'B' property, the
defendant was restrained from interfering with the plaintiff's possession and
enjoyment. Aggrieved by the same, the defendant filed A.S.No.67 of 2011
before the learned Additional District Judge, Devakottai. By the impugned
judgment and decree dated 19.10.2011, the appeal was allowed and the suit
was dismissed. Questioning the same, the Second Appeal came to be filed.
5. The second appeal was admitted on the following substantial
questions of law:
(i) Whether the First Appllate Court is right in
dismissing the suit for partition on the ground of non-joinder
parties and for partial partition?
(ii) Whether the oral relinquishment of mother and sister
pleaded by the appellant/plaintiff is true and valid?
(iii) Whether the oral partition pleaded by the
respondent/defendant in the written statement, is true and
valid?
(iv) Whether the First Apellate Court is right in
dismissing the suit in property described in the second
schedule as joint family property?
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6. Heard the learned counsel appearing for the appellant. Though the
respondent was served through Court notice on 20.12.2013, he has not
chosen to enter appearance through counsel. His name is printed in the
cause list.
7. The learned counsel appearing for the appellant reiterated all the
contentions set out in the affidavit and wanted to answer the substantial
questions of law in favour of the appellant and allow this appeal by
restoring the judgment and decree passed by the trial Court.
8. Since, there is no representation on the side of the respondent, I
independently scrutinized the evidence on record.
9. The specific case of the appellant is that the suit items set out in
schedule 'A' are the joint family properties. It is seen that there was a
partition between the father of the parties herein namely Muthaiya Karailyar
and his brother Perumal Karaiyur and items 1 and 2 of 'A' Schedule were
allotted to the father of the parties vide Ex.A1 on 01.11.1950. By marking
Ex.A4 dated 09.06.1980 and Ex.A5 dated 19.08.1983, the plaintiff has
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shown that the 'A' Schedule properties are the joint family properties and
amenable to partition. As regards schedule 'B' property, it was sold by one
Subbaiya Kariyalar vide sale deed dated 06.11.1963 (Ex.A2) in favour of
Sundara Konar and Sundara Konar sold the same in favour of the plaintiff
vide sale deed dated 16.07.1977 (Ex.A3). It is true that Ex.A5 shows that
the properties stood in the joint names of the plaintiff and the defendant.
But this entry in Ex.A5 cannot take away the character of the property as the
absolute property of the plaintiff. Ex.A3 sale deed was executed by
Sundara Konar only in favour of the plaintiff. The defendant does not figure
in the said sale deed. Ex.A5 will not confer any right in favour of the
defendant. Therefore, the trial Court rightly granted the relief of permanent
injunction in favour of the plaintiff in respect of 'B' Schedule property and
partition in respect of 'A' Schedule properties.
10. The First Appellate Court allowed the appeal only on two
grounds. The first ground is that the suit suffers from partial partition. From
a mere reading of evidence on record that has been referred to in paragraph
No.15 of the trial Court judgment, one can notice that even though such a
stand was taken by the defendants, the details have not been placed. If there
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are other properties that belong to the joint family, then the relevant
documents should have been marked. But, no such document has been
marked. No details have been furnished. Therefore, the finding of the first
appellate court that the suit suffers from partial partition has to be
necessarily interfered with.
11. The first appellate court had also non-suited the plaintiff for not
impleading the mother and sister. Again this finding has to be set aside on
the ground that the appellant had pleaded that the mother as well as the
sister have relinquished their share in the suit property and that the contest
is only between the plaintiff and the defendant. If this statement was false,
the defendant would have filed a petition for impleading the mother and the
sister. It is stated that the mother and sister are also residing in the very same
village. When a partition case is going on between the sons, the mother
would be in the know of things. The sister had also not chosen to file an
application for impleading herself in the suit proceedings. The plaintiff
contends that they have given up their rights in the suit properties.
Therefore, the finding of the first appellate court that the suit suffers from
non joinder of necessary parties is also incorrect. I answer all the substantial
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questions of law in favour of the appellant and judgment and decree of the
first appellate Court are set aside and the decision of the trial Court is
restored.
12. Accordingly, this Second Appeal is allowed. No costs.
26.07.2021
Index : Yes / No
Internet : Yes/ No
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To:
1. The District Munsif Srivaikuntam
2. The Additional District Judge Cum Fast Track Court No.II, Thoothukudi
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN,J.
kmm
S.A.(MD).No.732 of 2013
26.07.2021
https://www.mhc.tn.gov.in/judis/
