Madras High Court
Parvathi vs Paramasivam on 27 July, 2021
SA.No.(MD)No.360 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA.(MD.No.360 of 2011
Parvathi ...Appellant
Vs
1. Paramasivam
2. Muthammal
3. Bommuthai
... Respondents
Prayer: Appeal filed against the decree and judgment passed by the
learned Additional District Judge cum Fast Track Court, Dindigul, in
A.S.No.3 of 2010, dated 28.02.2011 allowing the appeal and reversing
the decree passed by the learned Additional Subordinate Judge, Dindigul,
in O.S.No.102 of 2006 dated 15.12.2009.
For Appellant : Mr.A.H. Hariharan
For Respondents : Mr. V. Palanichemy
For R1
Mr. S. Anand Chandrasekar,
For M/s. Sarvabhauman Associates
For R2 and R3
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SA.No.(MD)No.360 of 2011
JUDGMENT
The plaintiff in O.S.No.102 of 2006 on the file of the
Additional Subordinate Court, Dindugal is the appellant in this
Second Appeal. The suit was one for partition. According to the
plaintiff Parvathi, the suit property originally belonged to
Kanagasabathi Servai. Kanagasabathi Servai had two sons namely
Gurusamy and Palanivel. Gurusamy passed away leaving behind
his wife Ramayee and three children namely Arumugam, Murugan
and Paramasivam and the plaintiff Parvathi as his legal heirs. Since
Kanagasabathi Servai wanted to make provision for the Guruswamy
Branch, he partitioned the properties between his son, Palanivel and
daughter in law, Ramayee. In the said partition, the suit properties
were alloted to Ramayee. Ramayee also passed away sometime in
the year 2005. It is not in dispute that the elder Son, Arumugam
died leaving behind his wife Muthammal and daughther Bommuthai
as his legal heirs. Murugan suffered from insanity and died without
leaving behind any issues. Therefore, according to the plaintiff, the
properties that were alloted to Ramayee ought to be divided into
three shares, one share for her, one share for Arumugam Branch
and the third share for Paramasivam. With these averments she
filed the said suit for partition and seperate possession of her 1/3 rd
share.
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SA.No.(MD)No.360 of 2011
2. The second and third defendants filed written statement
controverting the plaint averments. Paramasivam supported the
case of the plaintiff. According to the contesting defendants, oral
partition took place between Arumugam on the one hand and
Paramasivam on the other. This partition was duly reflected in the
subsequent mutation of the revenue records. The families of
Armugam and Paramasivam are independently and sepearately
enjoying the suit items which are 11 in number. Items 1 to 5 are in
the exclusive possession of Paramasivam. Items 6 to 11 are in the
exclusive possession of Arumugam Branch. Therefore, the defense
of D2 and D3 was that the plaintiff had lost her rights due to ouster.
3. Based on the divergent pleading, the Trial Court framed
the following issues:
1) thjp Nfhhpagb jhthr; nrhj;Jf;fspy; 1/3 ghf
chpik thjpf;F rpj;jpj;Js;sjh?
2) 1984 k; Mz;L MWKfj;jpw;Fk;> 1 k;
gpujpthjpf;Fk; ,ilNa jhthr; nrhj;Jf;fisg;
nghWj;J Vw;fdNt gphptpid Mfptpl;ljh?
3) NtW vd;d ghpfhuk; thjpf;F
fpilf;fj;jf;fJ?“
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SA.No.(MD)No.360 of 2011
4. The plaintiff Parvathi examined herself as P.W.1.
Palanivel Servai, son of Kanagasabarhi was examined as P.W.2. Exs.
A1 to A5 were marked on the side of the plaintiff. On the side of
the defendants, Muthammal examined herself as D.W.1. One
Karuppiah was examined as D.W.2. Exs.B1 to B6 were marked on
the side of the defendants. After the consideration of evidence on
record, the Trial Court passed preliminary decree granting 1/3 rd
share in favour of the plaintiff. Aggrieved by the same, Muthammal
and Bommuthai filed A.S.No. 3 of 2010 before the Fast Track Court,
Dindugal. By the impugned judgment and decree dated
28.02.2011, the judgment of the Trial Court was reversed and the
suit came to be dismissed. Challenging the same, this Second
Appeal was filed by the plaintiff.
5. The Second Appeal was admitted on the following question
of law.
''1. Whether the decree and judgment
of the lower appellate court in allowing the
appeal and reversing the decree of the Trial
Court is legally sustainable ?
2. Whether the decree and judgment
of the lower Appellate Court is legally
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SA.No.(MD)No.360 of 2011
sustainable in as much as it has not framed the
issues properly to be decided in the Appeal?
3. Whether the decree and judgment
of the lower Appellate court is legally
sustainable in as much as it has rejected the
case of the appellant even though she has
established through oral and documentary
evidence that the suit properties are the joint
family properties and that no partition has
taken place in respect of the suit properties?
4. When the respondents 2 and
3/defendants 2 and 3 have not proved 'ouster'
of the appellant/plaintiff from the suit
properties, whether the approach of the lower
appellate court in considering and upholding
ouster in favour of respondents 2 and
3/defendants 2 and 3 is correct in law?
5. Whether the lower appellate court
has considered the evidence both oral and
documentary in their proper perspective when
the trail court has had the benefit of observing
the demeanor of the witnesses examined on
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SA.No.(MD)No.360 of 2011
either side.“
6. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this court to answer the subsequent
questions of law in favour of the appellant and set aside the
impugned judgment and decree passed by the First Appellate Court
and restore the decision of the Trial Court.
7. Per contra, learned counsel for the contesting
respondent submitted that the impugned judgment does not call for
any interference.
8. I carefully considered the rival contentions and went
through the evidence on record. There is no dispute that the suit
properties were alloted to Gurusamy Branch. There is again no
dispute about the relationship of the parties. Since the mother
Ramayee as well as the brother Murugan had passed away, the
question is whether the suit property had to be divided into three
shares and alloted. The stand of the contesting defendants was that
plaintiff had lost her rights on account of ouster. I went through the
reply statement filed by the contesting defendants. Except raising a
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SA.No.(MD)No.360 of 2011
formal plea of ouster, the details have not been specifically set
forth. It is well settled that the plea of ouster requires strong proof
for the court to accept the same. The defendants have not pleaded
as to when the oral partition took place between Arumugam and
Paramasivam. They must also have pleaded that the partition that
took place in the family was well within the knowledge of the
plaintiff Parvathi and that she kept quiet beyond the expiry of the
statutory period. Such pleading is not available in the written
statement filed by the contesting defendants. It is true that the
revenue documents in respect of the suit properties are in the name
of Paramasivam or in the names of the defendants but then it has
been held in several decisions that prayer for partition cannot be
defeated by relying on revenue documents. In the decision
reported in (2017) 8 MLJ 471, Ammasiammal vs M.
Karuppanna, after referring to several earlier decisions, it was held
that the plea of ouster cannot be substantiated merely with
reference to revenue records. Ouster also cannot be infered by
mere enjoyment of the properties for over a period of 12 years.
Respectfully following the said decision, I hold that the trial Court
had correctly approached the issue and on the other hand, the first
appellate court, had completely misdirected itself in law. The
substantial questions of law answered in favour of the appellant, the
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SA.No.(MD)No.360 of 2011
impugned judgment of the first appellate court is set aside. The
decision of the Trial Court is restored. The Second Appeal is
allowed. No costs.
27.07.2021
Index : Yes / No
Internet : Yes/ No
mnr
To:
1. The Additional District Judge cum Fast Track Court, Dindigul,
2. The learned Additional Subordinate Judge, Dindigul,
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SA.No.(MD)No.360 of 2011
G.R.SWAMINATHAN,J.
mnr
SA.(MD.No.360 of 2011
27.07.2021
https://www.mhc.tn.gov.in/judis/
