Madras High Court
Palanisamy vs Palaniammal (Died) on 25 November, 2021
A.S.No.1214 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 31.03.2022
ORDERS PRONOUNCED ON : 06.04.2022
CORAM:
THE HON'BLE MRS. JUSTICE N.MALA
A.S.No.1214 of 2015
1.Palanisamy
2.Nagappan ... Appellants
vs.
1.Palaniammal (Died)
2.Rathinam
3.S.Sakunthala
4.R.Sasikala
(R3 to R4 brought on record as Lrs. of the
deceased 1st respondent (Palaniammal)
viz., vide Court order dated 25.11.2021,
made in CMP.Nos.8532 & 8537 of 2019
in A.S.No.1214 of 2015 (AANJ) ... Respondents
Prayer: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 and 2 of the
Code of Civil Procedure, 1908, against the Judgment and Decree dated
16.04.2015 made in O.S.No.205 of 2013 on the file of the I
Additional District Court, Erode.
1/11
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A.S.No.1214 of 2015
For Petitioner : M/s. Zeenath Begum
For R3 & R4 : Mr.V.S.Kesavan
*****
JUDGMENT
The unsuccessful defendant Nos.1 and 2 are the appellants in the above
appeal filed against the Judgment and Decree dated 16.04.2015 made in
O.S.No.205 of 2013 on the file of the I Additional District Court, Erode.
2.The appellants will be referred to as defendants one and two and the
first respondent referred to as plaintiff for the sake of convenience.
3.The plaintiff filed the suit for partition of her 1/4 th share in the suit
properties and other reliefs.
4.The case of the plaintiff is that the defendants one and two are her
brothers and third defendant is her sister. The plaintiff and the defendants are
the children of one Periyathambi Goundar and Chinnammal. According to
the plaintiff the two items of suit property along with one other property in
Gobichettipalayam Taluk were purchased by her father. The plaintiff’s father
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A.S.No.1214 of 2015
purchased item number one of the suit property under Ex.A1 on 25.09.1960
and item number two on 26.09.1966 under Ex.A2. The plaintiff's father
purchased the property in Gobichettipalayam on 21.02.1974. The plaintiff's
father died intestate on 04.01.2007 and therefore, after his death, the property
devolved on his legal heirs viz., the plaintiff and defendants thus the plaintiff
claimed 1/4th share in the suit properties. The plaintiff requested the
defendants orally on 05.04.2013 for division of her 1/4th share the
defendant's having refused the plaintiff filed the present suit for partition of
her 1/4th share in the suit properties.
5.The first defendant filed a written statement denying all the
averments in the plaint. The first defendant contended that the suit properties
and also another property in Gobichettipalayam were not the self-acquired
properties of Periyathambi Gounder and that though the name of
Periyathambi Gounder is reflected in the sale deed , it was the defendants 1
and 2 who paid the sale consideration and therefore the suit properties
belonged to them. The sale consideration was paid by them, Periyathambi
Gounder was a name giver only and hence the sale deed was sham and
nominal. The first defendant’s further case was that the plaintiff and the third
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A.S.No.1214 of 2015
defendant had absolutely no right to the properties and that he had perfected
title by adverse possession also as the plaintiff and the third defendant were
married long back and never in possession of the properties. As far as joint
sale of the land in Gobichettipalayam is concerned, the defendant's
explanation was that the plaintiff received the entire sale consideration and
that the defendants one and three did not take any benefit from the sale. The
first defendant also referred to certain expenses incurred by him for the
maintenance of his parents and also for the marriage expenses and
agricultural loans incurred by him. On the said averments the defendant
prayed for dismissal of the suit.
6.The plaintiff has examined herself as PW-1, marked Ex.A1 to A-5
on her side and the second defendant examined himself as DW-1 and marked
Exhibits B-1 to B-4.
7.The trial Court framed the following issues:
“1.Whether the plaintiff is entitled for partition of
1/4th share in the both items of the plaint schedule
properties by metes and bounds and separate possession
as prayed for?
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A.S.No.1214 of 2015
2.Whether the first and second defendants alone
are in possession and enjoyment of the both items of
the plaint schedule properties is true?
3.What other reliefs?”
8.The trial Court on appreciation of the pleadings and the evidence on
record returned a finding that the suit properties were the self acquired
properties of Periyathambi Gounder and passed a preliminary decree for
partition of the plaintiff's 1/4th share in the suit properties. Aggrieved by the
judgment and decree of the trial Court, the defendants one and two have
preferred the above appeal.
9.POINT FOR DETERMINATION IN THE APPEAL:
(i) Whether the suit properties are the self
acquired properties of the plaintiff's father and whether
the plaintiff is entitled to the relief of partition of 1/4 th
share in the suit properties.
10.The learned counsel for the defendant mainly contended that the
burden was on the plaintiff to prove that the suit properties are the separate
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A.S.No.1214 of 2015
property of their father. The learned counsel further argued that merely
because the plaintiff joined in sale of the property in Gobichettipalayam, she
cannot claim the suit properties as self-required property of their father.
11.The counsel for the plaintiff supported the judgment of the trial
Court and prayed for the dismissal of the appeal.
12.Heard the learned counsel for the appellants and the respondent.
13.The plaintiff's specific case is that the suit properties were
purchased by her father Periyathambi Gounder vide Document in Ex.A1 and
Ex.A2 and that on his death intestate on 04.01.2007 as the Legal heir of the
deceased Periyathambi Gounder, the plaintiff and the defendant Nos.1 to 3,
who are her brothers and sister are equally entitled to the suit property.
Whereas the defendants claim that the suit properties though stand in the
name of the father i.e. Periyathambi Gounder ,it was the defendant’s 1 and 2,
who paid the sale consideration and Periyathambi Gounder's name was
added as sham and nominal. It is not disputed that Ex.A1 and Ex.A2, the sale
deeds dated 29.09.1960 and 26.09.1966 stand in the name of the father
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A.S.No.1214 of 2015
Periyathambi Gounder hence the burden is on the defendants to show that
the sale is only sham and nominal and that the consideration for the sale was
paid by them.
14.It is pertinent to note here that the second defendant who was
examined as DW1 has deposed that at the time of purchase of Item NO.1 of
the suit property by his father in the year 1960 he was aged about four years
and his brother was aged about two years. He further deposed that at the
time of purchase of item No.2 of the suit property DW1 was aged about ten
years and his brother was aged about eight years. He admits that he was born
in the year 1956 and his brother was born in the year 1958. The relevant
portion is extracted as under:
@ehd; 1956k; Mz;oy; gpwe;njd; vd;why; rhpjhd;/ 1k; gpujpthjp 1958y;
gpwe;jhh; vd;whh; rhpjhd;/ Muk;gj;jpy; vdJ je;ij ifj;jwp
nghl;oUe;jhuh vd;why; ,y;iy. Njhl;l ntiyf;Fr; brd;W
bfhz;oUe;jhh;/ vdf;F epidt[ ,Uf;Fk; tiu njhl;l ntiyf;Fj;jhd;
brd;W bfhz;oUe;jhh;/ ehd; nk$uhdjpw;F gpd;dh; vdJ je;ij
tpirj;jwp nghl;lhh;/ tHf;Fiu 1tJ mapl;l brhj;J vdJ je;ij 1960k;
tUlk; fpuak; bgw;whh; vd;why; rhpjhd;/ nkw;Twpa brhj;J th';Fk;nghJ
vdf;F 4 taJ. 1k; gpujpthjpf;F 6 taJ ,Uf;Fk; (Actual Age two
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A.S.No.1214 of 2015
years). 2tJ mapl;l brhj;ij vdJ je;ij 1966y; tpiybgw;whh;/
nkw;Twpa brhj;J th';Fk; th';Fk; nghJ vdf;F 10 taJ. 1k;
gpujpthjpf;F 12 taJ ,Uf;Fk; (Actual Age eight years). thjp
jug;g[ tHf;Fiu"h; ntz;L nfhSf;fpz';f FWf;F tprhuiz epWj;jp
itf;fg;[email protected]/
15.Therefore it is crystal clear that the claim of the defendants is
unbelievable. At such tender age it is improbable that the defendants could
have paid the sale consideration. Even otherwise there is no iota of evidence
in support of the defendants claim. One other aspect which creates a
suspicion on the defendants plea is that the plaintiff and the third defendant,
who are the daughters of Periyathambi Gounder joined in the execution of
the sale deed for sale of the property at Gobichettipalayam under Ex.A4 on
01.02.2007. If really the plaintiff and the third defendant as the daughters
had no share in the suit properties and the same exclusively belonged to the
defendant Nos.1 and 2 there was no reason why they were joined in
execution of the sale. The explanation given by defendants 1 and 2 that at
the request of the vendee they joined in execution of sale is frivolous and
untenable. It is also seen from the records that the house tax receipts and the
land tax receipts stood in the name of Periyathambi Gounder under Ex.B1
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and Ex.B2. The fact that the defendants 1 and 2 did not mutate the revenue
records even after the father’s death falsifies the defendants claim.
16.The trial Court has rightly considered the evidence on record
and come to a conclusion that the plaintiff has proved that the suit properties
are the self-acquired properties of Periyathambi Gounder and as such she is
entitled to one 1/4th share in the same.
17.Though the plea of ouster was raised by the defendants the same
is not supported by any documentary evidence. No other grounds were
urged before me. I find that the trial court has appreciated the evidence on
record properly and has given its findings correctly on the the issues raised
before it. I confirm the findings of the trial Court and see no justifiable
grounds for interference.
18.I therefore hold that the Judgment and Decree of the trial Court
has to be affirmed and the appeal has no merits and the same deserves to be
dismissed.
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A.S.No.1214 of 2015
19.I find that there is no merits in the appeal and the same is
dismissed, confirming the Judgment and the Decree of the trial Court. There
shall be no order as to costs.
06.04.2022
Index : Yes / No
Internet : Yes / No
ah
To
The I Additional District Judge,
I Additional District Court,
Erode.
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A.S.No.1214 of 2015
N.MALA, J.
ah
PRE DELIVERY JUDGMENT
IN A.S.No.1214 of 2015
06.04.2022
https://www.mhc.tn.gov.in/judis
