Madras High Court
G.Rajendrakumar vs S.Rani on 6 September, 2021
A.S.No.303 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.303 of 2017
and C.M.P.No.11459 of 2017
G.Rajendrakumar ...Appellant
Vs.
S.Rani ...Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure
against the Judgment and Decree of the Additional District Court, Hosur,
dated 28.02.2017 in O.S.No.9 of 2013.
For Appellant : Mr.S.Kanniah
For Respondent : Mr.J.Hariharan
JUDGMENT
The defendant has challenged the judgment and decree in the
OS.No.9 of 2013 passed by the Additional District Judge, Hosur, in and by
which the learned Judge has granted a half share to the plaintiff in the suit
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A.S.No.303 of 2017
schedule properties. The parties are referred to in the same litigative status
as before the trial Court.
2.The Plaintiff Case:
It is a case of the plaintiff that she and the defendant are the children
of one Govindan. The suit properties belonged to the said Govindan who
was in possession and enjoyment of the same, throughout his lifetime.
Three decades prior to the filing of the suit, the said Govindan had died
leaving behind him to survive his wife Govindammal and the plaintiff and
the defendant as his legal representatives. The plaintiff would submit that
she, her mother and the defendant were in possession and enjoyment of the
properties.
3.While so, the plaintiff was married on 02.09.1990. After the demise
of her father, the Revenue Record in respect of the suit properties was
mutated in the name of her mother Govindammal. However, the plaintiff and
defendant were also jointly enjoying the properties along with their mother.
The plaintiff's mother died on 11.07.1992 and thereafter, it was only the
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A.S.No.303 of 2017
plaintiff and the defendant who were jointly enjoying and in possession of
the suit properties.
4.In the meanwhile, the plaintiff came to learn that the defendant was
attempting to sell the suit properties, claiming to be the sole owner of the
same. On 20.01.2013, when the plaintiff questioned him, he proclaimed that
the patta has been mutated in his name and therefore, he was the exclusive
owner of the suit properties and would deal with it in the manner he deems
fit. This propelled the plaintiff to file the present suit.
5.Written Statement of the defendant:
The defendant had filed a written statement inter-alia denying the
right of the plaintiff to the suit properties. He would contend that the
properties originally belonged to his paternal grand father and grand mother,
Govindasami and Lakshmiammal, who had purchased the properties. On
their demise , the properties devolved to his father Govindan.
6.It was the case that only he and his father were in possession and
enjoyment of the properties. After the demise of his paternal grand father,
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A.S.No.303 of 2017
the defendant's mother had also passed away in the year 1992, after the
marriage of the plaintiff in the year 1990. After the demise of the mother, the
defendant has been in exclusive possession and enjoyment of the suit
properties. The defendant would refute the contention of the plaintiff that he
was making arrangements to sell the suit properties. It is also his further
case that the plaintiff was not entitled to institute the suit for partition, since
she has already been allotted a share in the joint family properties measuring
an extent of 22 ½ cents comprised in Survey No.167/3B of Chinnakanapalli
Village. The plaintiff had sold the said properties at which point of time she
had assured the defendant that she will not demand any share in the
properties of their father Govindan. Despite such an assurance the plaintiff
has came forward with the instant suit.
7. Trial Court:
After perusing the pleading, the trial Court has framed the following
issues:-
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2/ epue;ju cWj;Jf;fl;lis thjpf;F fpilf;fj;jf;fjh>
3/ ntW vd;d ghpfhuk;>
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A.S.No.303 of 2017
The plaintiff had examined herself as PW1 and marked Exs.A1 and
A2. On the side of the defendant, the defendant besides examined himself as
DW1 and also examined one Mr.Periyasamy and one Govindasamy as DW2
and DW3 respectively and marked Exs.B1 and B2.
8.The learned Additional District Judge, Hosur, on consideration of
the both oral and documentary evidence held that the plaintiff was entitled to
a half share in the suit schedule properties.
9.Challenging this judgment and decree, the defendant is now before
this Court. Mr.S.Kanniah, learned Counsel appearing on behalf of the
appellant would raise the following contentions:-
1. The property is ancestral, as admittedly the same
belonged to Govindasamy and his wife Lakshmiammal who
are the paternal grand parents of the plaintiff and the
defendant.
2. The plaintiff has sold a property namely the 4th
item of the suit schedule properties by exercising her rights
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A.S.No.303 of 2017
of absolute ownership which he would contend proves his
contention of the oral partition.
3. Non-joinder of necessary parties since the other
children of Govindasamy and Lakshmiammal have not been
made parities to the proceeding.
10.The learned counsel further would contend that the defendant has
in the written statement taken a definite stand that the properties are the
ancestral property, since it was originally purchased by their grand parents,
after their demise the properties had devolved on their son Govindan and his
sisters. He would contend that PW1, in her cross examination has clearly
admitted that besides her father Govindan, Govindasamy and
Lakshmiammal had 4 daughters who were Muniyamma, Govindamma,
Chinamma and Chinnapapa. Therefore each of them would inherit a 1/5th
share in the properties. Totally suppressing this, the plaintiff has filed the
suit claiming a half share in the entire suit properties. He would further
argue that there was an Oral partition and Survey No.167/3B, which is the
4th item of the suit schedule that had been sold by the plaintiff and her
husband without recourse to the defendant. This, according to the defendant
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A.S.No.303 of 2017
was done by the plaintiff asserting her exclusive right over the said property.
He would invite the Court's attention to the admission of the plaintiff in her
cross examination wherein she has stated as follows:-
@167-3gp rh;nt vz;Qqs;s tPL kw;Wk; khl;L bfhl;lif vd;Dila
jhahh; flDf;fhf tpw;gid bra;Jtpln; lhk;/ ehd;. vd; tPlL
; fhuUk;
nrh;eJ
; jhd; KDrhkp vd;gtUf;F tpw;gid bra;jtpl;nlhk;/ tPL
khl;Lbfhl;il Mfpatw;iw tpw;wij nghf vd;Dila eiffis tpw;W
kPjp flid milj;njhk;/ rh;nt vz; 167-3gp tpw;wnghJ gpujpthjp
4tJ goj;J te;jhh;/ vd; jk;gp ifbahg;gk; vJt[k; bgwtpy;iy/@
11.He would further submit that, from a perusal of the cross
examination of the plaintiff, it is clearly evident that, the properties are not a
self-acquired property of Govindan, the plaintiff and defendant's father but it
was a ancestral property. The same has been purchased by his father and
mother. Thereafter, on the death of Govindasamy and Lakshmiammal, their
legal heirs, namely the plaintiffs' father and his sisters would each be entitled
for 1/5th share in the suit properties. Therefore, their non impleadment in the
proceedings render the suit not maintainable. He would also argue that the
plaintiff has not come forward to file any document to substantiate her case
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A.S.No.303 of 2017
that the suit properties are the self-acquired property of their late father and
the only document that has been filed to establish a title was a xerox copy of
a Patta and Chitta, which at the most was only a proof of the possession. He
would submit that the defendant has filed a very sketchy written statement
in which although he has taken out the plea that the property in question are
ancestral. There is no definite reference to the other sharers and above the
oral partition. All of this has been elicited by the defendant only during the
cross examination of the plaintiff. He would therefore submit that in order to
bring about a quietus to the entire issue, it is necessary to remit the matter
back to the trial Court to conduct the suit, afresh.
12.Per Contra, Mr.J.Hariharan learned counsel appearing on behalf of
the plaintiff/respondent would submit that the properties have been in
possession and enjoyment of only the father of the plaintiff and her paternal
aunts have not made any claim to the same. However, he would fairly
submit that the plaintiff has not made them a party to the suit, although
they would also be entitled to a share in the suit properties if the Court come
to the conclusion that the properties are ancestral. He would submit that the
documents filed by the plaintiff / defendant particularly Ex.B1 is totally
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A.S.No.303 of 2017
unconnected with the suit properties and Ex.B2 is the document under
which the grand mother had purchased item 4 of the suit properties in the
year 1972.
13.Discussion:
After hearing the learned Counsels and on perusing the pleadings as
well as evidence, the following points emerge:-
(a) That the suit properties are admittedly not purchased by the father
of the plaintiff or defendant but on contrary by their paternal grand parents
Govindasamy and Lakshmiammal.
(b) Govindasamy and Lakshmiammal had died intestate and besides
the father of the plaintiff and defendant, Govindasamy and Lakshmiammal
had four other children who have not been made parties to the proceedings,
particularly when they are entitled to the share in the properties. It is also
seen that the plaintiff without reference to the defendant has proceeded to
dispose of item 4 of the suit properties, but however omitted to exclude this
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A.S.No.303 of 2017
from the schedule of the properties. Though the defendant had raised a plea
of non-joinder, he had however not elaborated on the same in his written
statement and has not insisted upon an issue in this regard being framed. An
issue with reference to the nature of property (whether ancestral or self-
acquired) has also not been raised, though there are specific pleadings in this
regard. However, it has now been brought to the notice of the court and
admitted by both parties that the properties originally belonged to
Govindasamy and Lakshmiammal who had five children i.e., the father of
the plaintiff and defendant and four others. It is also seen that Govindasamy
and Lakshmiammal both had died intestate. Therefore, their properties
would, as per law, devolve on all the children equally. It is also seen that
there has been no partition of the properties. In order to have a complete
adjudication in a suit for partition and in the interest of justice the suit has to
be remitted back to the Trial Court. On such remand, the plaintiff shall take
steps to implead the other legal heirs of Govindasamy and Lakshmiammal.
Thereafter, the parties shall be given an opportunity to file additional
pleadings and the suit shall be proceeded therefrom.
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14.In fine, the first appeal is allowed and the matter is remitted to the
trial Court. There shall be no order to cost. Consequently, connected
Miscellaneous Petition is also closed.
06.09.2021
Index : Yes/No
Internet : Yes/No
vkr/gd
To
The learned Judge,
Additional District Court, Hosur.
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A.S.No.303 of 2017
P.T. ASHA, J,
vkr/gd
A.S.No.303 of 2017 and
C.M.P.No.11459 of 2017
06.09.2021
http://www.judis.nic.in
