Madras High Court
Amul Raj vs Irana Abraham on 23 June, 2021
S.A.No.353 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.353 of 2008
and
M.P.No.1 of 2008
1. Amul Raj
2. Pushparani
3. Maria Arputharaj
4. Selvan George Stephen
5. Nany Rani
...Appellants
versus
Irana Abraham
...Respondent
Second Appeal filed to set aside the judgment and decree dated
07.01.2008 made in A.S.No.75 of 2006 on the file of the learned
Principal Subordinate Judge, Tiruvannamalai reversing the judgement
and decree dated 28.04.2006 and made in O.S.No.926 of 1996 on the
file of Principal District Munsif Court, Chengam.
For Appellants : Mr. R. Rajaraman
For Respondent : Mr. R. Rajarajan
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S.A.No.353 of 2008
JUDGMENT
The unsuccessful defendant in the Court below is the first
appellant before this court.
2. The parties are referred to in the litigative status in which
they have been arrayed in the suit.
3. The brief facts necessary for disposing of the above
Second Appeal are as follows:
Plaintiff's Case:
3.1. The suit O.S.No.926 of 1996 was instituted on the file
of the District Munsif, Chengam by Selvaraj Naidu, Catharina and
Irana Abraham, of the three plaintiffs, first two are no more and
the third plaintiff is none other than the daughter of the plaintiffs
1 and 2.
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S.A.No.353 of 2008
3.2. The suit has been instituted against the defendant
Amulraj, who is none other than the son of the first plaintiff's
brother Joseph Kamburaj.
3.3. The case of the plaintiff was that the suit schedule
property and other properties belonged to the family consisting of
the plaintiff, his mother Mariyammal, the defendant and one
Lurdhumeri Ammal, sister of the defendant. They had been in
joint possession and enjoyment of the suit schedule property as
joint owners.
3.4. On 17.12.1793, the first plaintiff, his mother
Mariyammal, the defendant and his sister Lurdhumari ammal had
entered into a registered partition deed. Under this partition, the
suit schedule property and other properties were alloted to the
share of the first plaintiff who since then has been in separate
possession and enjoyment of the same by mutating the revenue
records and paying the kist thereafter.
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S.A.No.353 of 2008
3.5. The plaintiff would further submit that under an UDR
Scheme, patta No.71 has been alloted in the name of the first
plaintiff in respect of the suit property. The defendant who had
no right over the suit schedule property had started making claim
over the suit properties stating that the properties were
purchased in the name of his father and therefore, it belonged to
him exclusively.
3.6. The plaintiff would submit that the suit schedule
property had been purchased out of the joint exertion of the
defendant's father Joseph Kamburaj, the first plaintiff and their
mother Mariyammal. Besides the suit property, other properties
were also purchased by them and they were enjoying the same
as co-owners.
3.7. The defendant's father died in the year 1948 leaving
behind him his son the defendant and daughter Lurdhumeri
Ammal. After the death of Joseph kamburaj the properties were
being jointly enjoyed by the first plaintiff, defendant,
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S.A.No.353 of 2008
Mariyaaamal and Lurdhmeri Ammal and it is in these
circumstances that the partition deed had entered into between
the parties.
3.8. Since the defendants had started asserting a right over
the suit schedule properties, the plaintiffs have come forward
with the instant suit.
3.9. Pending the suit, plaintiffs 1 and 2 passed away and
the suit was continued by their daughter, the third plaintiff.
4. Defendant's Case:
4.1. The defendant had filed a written statement inter alia
contending that the first plaintiff was employed in the army and
the father of the defendant in the air force. Out of their separate
income, they had purchased properties in their name. There was
no joint exertion for the purchase of the suit schedule property.
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S.A.No.353 of 2008
4.2. The defendant would further submit that when his
father passed away both defendant and his sister were very
young and gullible and they had implicit faith in their parental
uncle and had therefore not questioned the actions taken by the
first plaintiff. It is the case of the defendant that he had signed
the partition deed without comprehending its contents.
4.3. He would further argue that the first plaintiff had
cleverly kept out the properties purchased in his name in the
partition. He would further submit that though the partition is
said to have been effected in the year 1973, the defendant
continued to be in possession and enjoyment of the suit
properties and therefore the partition in question was only a
sham and nominal one.
5. Trail Court:
5.1. The District Munsif, Chengam had framed the following
issues:
"1. Whether the allegation of the
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S.A.No.353 of 2008
plaintiff that the family of plaintiff at his
mother the defendant and his sister
Lourdmary wherein joint possession and
enjoyment of suit property as co-owner is
true?
2. Whether partition deed dated
17.12.1973 is true and genuine ?
3. Whether the plaintiff is in
possession of suit property ?
4. Whether the plaintiff has perfected
his title by adverse possession to this suit
property?
5. Whether the plaintiff is entitled for
suit claim?
6. To what relief ?"
5.2. On the side of the plaintiff, three witnesses were
examined and Exs. A1 to A.17 were marked. On the side of the
defendant, six witnesses were examined and Exs. B1 to B8 were
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S.A.No.353 of 2008
marked.
5.3. The learned District Munsif at the outset took note of
the fact that the parties to the suit were Christians to whom the
concept of joint family was alien. Ultimately the Court had held
that the property was being enjoyed by the first plaintiff, his
mother, defendant and sisters, the learned Judge upheld the
Partition deed which had not been questioned by the defendant.
5.4. He further observed that the plaintiff has not proved
possession to the suit property. The Court had also held that the
defendant has proved possession and the suit was dismissed.
6. Appellate Court:
6.1. Challenging the same, the plaintiff had filed A.S.No.75
of 2006 on the file of the Principal Subordinate Judge,
Tiruvannamalai.
6.2. The learned Subordinate Judge considering the
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S.A.No.353 of 2008
evidence on record, both oral and documentary, held that the
dismissal of the suit in toto by the Trial Court was erroneous and
contrary to the evidence on record.
6.3. The learned Judge had observed that the Partition Deed
has been proved by the plaintiff and consequently her title has
been proved and that apart she had also filed revenue documents
to show possession. Therefore, the judgment and decree of the
Trail Court was reversed and the Appeal allowed. It is
challenging this judgment and decree, the appellant is before this
Court.
7. Submission:
7.1. Heard Mr. T.R. Rajaraman, learned counsel for the
defendant/appellant. He would contend that the suit property is
the property of his father that had been partitioned. The first
plaintiff being the paternal uncle had taken advantage of the age
of the defendant and his sister to create the partition deed
marked as Ex.A.1.
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S.A.No.353 of 2008
7.2. He would further contend that the defendant at that
point of time was not wordily wise and the partition deed entered
into by the defendant was on account of the position of trust the
first plaintiff was placed by the plaintiffs and by
misrepresentation. Further, it is his argument that possession of
the property continued to remain with the defendant since the
plaintiffs were living away from the suit property. He would also
draw the attention of the Court to the oral evidence of the
plaintiffs' witnesses who would admit that the plaintiffs are not
residing in the suit village but elsewhere. He would therefore
submit that since possession continued to be with the defendant,
the only presumption that can be drawn is that the partition deed
was non est and not acted upon. Therefore, the finding of the
Lower Appellate Court was totally erroneous. He would argue
that the Appellate Court had erred in reversing the well
considered judgment and decree of the Trail Court.
7.3. The said arguments have been refuted by the learned
counsel for the plaintiff who would contend that the partition
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S.A.No.353 of 2008
deed has not been challenged to date and the same has been
acted upon. It does not lie in the mouth of the defendant to now
question the partition that had taken place as early as in the year
1973.
8. Heard the counsel and perused the papers.
9. Discussion:
9.1. Admittedly, the partition deed has been entered into as
early as in the year 1973 and that same had not been called in
question earlier and for the first time it is only in this suit that the
deed is said to be a sham and nominal one.
9.2. A perusal of the signature of the defendant in the
partition deed would clearly show that the same has been affixed
by a educated person. The signature is in the English language
and well formed. Be that as it may, the defendant has not
chosen to question the deed till the institution of this suit by the
plaintiffs. Even in the suit, there is no counter claim by the
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S.A.No.353 of 2008
defendant. Therefore, the execution of the partition deed is with
the full knowledge and consent of the defendant and no exception
can be taken to the same. His sister has also not questioned the
same though she is a signatory to the said deed. This can only
lead us to the logical conclusion that the Partition Deed was
entered into with the full knowledge and consent of its
signatories.
9.3. The plaintiffs had filed documents to show mutation of
revenue records in their name and the fact that they have been
paying the kist receipts in respect of the suit property which
clearly proves their possession of the property. The defendant
has filed the kist receipt which is of the year 1996 that is the year
of the suit. The Lower Appellate Court has rightly considered the
evidence. The partition deed having been executed by the
plaintiff with open eyes and not having been challenged to date,
question of law No.1 is answered against the
defendant/appellant. The documentary evidence let in on the side
of the plaintiff substantiate their claim of possession and the
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S.A.No.353 of 2008
defendant who claims to be in continuous possession has not
produced any documents to prove the same. Therefore, the
substantial question of law No.2 is also answered against the
appellant. The Lower Appellate Court has rightly upheld the right
of the plaintiffs to the suit property based on Ex.A.1, taking into
account the fact that no contrary evidence has been let in by the
defendant to disprove the contents of the Partition Deed Ex.A.1
as well as possession. The Lower Appellate Court has rightly set
aside the observation of the Trial Court invoking Section 37 of
the Specific Relief Act. Therefore, substantial question of law
No.3 is also answered against the plaintiff.
9.4. In fine, the Second Appeal stands dismissed.
Consequently, connected Miscellaneous Petition is closed. No
costs.
23.06.2021
Index: Yes/no
mrn
https://www.mhc.tn.gov.in/judis/
S.A.No.353 of 2008
To
1. The Principal Subordinate Judge, Tiruvannamalai
2. The Principal District Munsif Court, Chengam.
https://www.mhc.tn.gov.in/judis/
S.A.No.353 of 2008
P.T.ASHA, J.
(mrn)
S.A.No.353 of 2008
and
M.P.No.1 of 2008
23.06.2021
https://www.mhc.tn.gov.in/judis/
