Madras High Court
Thulasiammal vs Muniammal on 23 September, 2021
SA NO.334 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.334 OF 2017
AND
CMP NO.7878 OF 2017
Thulasiammal ... Appellant
VS.
Muniammal ... Respondent
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree dated 09.12.2016 made in
A.S.No.57 of 2013 on the file of Subordinate Judge, Vellore, in reversing
the well considered judgment and decree dated 30.09.2013 made in
O.S.No.110 of 2003 on the file of Additional District Munsif Court,
Vellore, Vellore District.
For Appellant : Mr.A.Gouthaman
For Respondent : Mr.M.Mariappan
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SA NO.334 OF 2017
JUDGMENT
The plaintiff is the appellant in the Second Appeal. The
plaintiff filed a Suit for partition in respect of 62 1/2 cents of land in
S.No.310/2C at Anpoondi Village, Vellore Taluk, Vellore District.
Aggrieved over the reversal of decree granted by Trial Court, the present
Second Appeal has been preferred.
2.According to the plaintiff, one Chinnayya Gounder was
the owner of the landed property measuring an extent of 5.00 Acres in
S.No.310/2 at Anpoondi Village. He had five sons namely Angamuthu
Gounder, Perianna Gounder, Poongavana Gounder, Thandavaraya
Gounder and Sadaya Gounder. After the death of Chinnayya Gounder,
Angamuthu Gounder being the eldest son managed the family and he
kept 2.5 Acres of land as his own and divided the remaining 2.50 Acres
and given it to his four brothers in equal moiety and executed nominal
sale deed in favour of Thandavaraya Gounder in the year 1942.
Thereafter, the four brothers divided the said lands orally in 1945 and
have taken 0.62 1/2 cents each. But, Sadaya Gounder created a nominal
sale deed in favour of him in the year 1988 as having purchased 0.70
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SA NO.334 OF 2017
cents from Thandavaraya Gounder without any consideration. The other
brothers were in possession of the lands till their death. After their death,
their legal representatives were in possession and enjoyment of the same.
Thus, the plaintiff's father-in-law Poongavana Gounder inherited 0.62
cents of land. The said Poongavana Gounder had two wives and through
them, two sons born to him, namely Murugesan and Subramani. The said
Murugesan and Subramani were jointly enjoying the suit property as
joint family property till their death. After their death, the wives of
Murugesan and Subramani, namely, the plaintiff and the defendant are in
possession and enjoyment of the Suit property till the date of filing of the
Suit. Due to the misunderstanding between themselves, the plaintiff
issued a legal notice on 24.12.2002 demanding partition which was
refused by the defendant. On the basis of the same, the plaintiff filed the
Suit for partition.
3.In the written statement, the defendant denied all the
averments made in the plaint. According to the defendant, one Chinnayya
Gounder was the owner of the property measuring an extent of 5.00
Acres in S.No.310/2. But the property was purchased by Angamuthu
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SA NO.334 OF 2017
Gounder. The said Angamuthu Gounder, on 16.11.1942 sold 2.5 Acrse of
land out of the total extent of 5.00 Acres in S.No.310/2 to Thandavaraya
Gounder @ Mottai Thalayan S/o. Chinnayya Gounder. The said
Thandavaraya Gounder became the owner of the property and he was in
possession and enjoyment of the same. Poongavana Gounder had two
wives. Through his first wife, he had one son namely Murugesan. When
the said Murugesan was a small child, his mother died. After the death of
the first wife, Poongavana Gounder married one Bagyammal as second
wife. Immediately after the second marriage, within a short time,
Poongavana Gounder died and no child was born to Bagyammal.
Therefore, it is false to state that Subramani was born to Poongavana
Gounder and Bagyammal and the plaintiff is the wife of Subramani is
also denied. After the death of Murugasan's mother, the first wife of
Poongavana Gounder, he was adopted by Thandavaraya Gounder. After
the death of Thandavaraya Gounder, his sons namely, Mani and
Govindasamy and the adopted son Murugesan have divided the
properties into three shares. Thus, all the three were entitled to 0.60 cents
of land in S.No.310/2. The defendant as a wife of Murugesan derived
title to 0.60 cents of land in S.No.310/2 which was subsequently
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SA NO.334 OF 2017
sub-divided as S.No.310/2C and joint patta was also issued in the name
of the defendant vide Patta No.313. Thus, she is the absolute owner of
the property measuring 0.60 Cents in S.No.310/2C and the plaintiff is not
entitled to any share in the property at all.
4.Based on the pleadings, the Trial Court framed appropriate
issues and decreed the Suit in favour of the plaintiff. Aggrieved over the
same, the defendant preferred an appeal, which was allowed by the First
Appellate Court and the decree passed by the Trial Court was set aside.
Against the judgment and decree of the First Appellate Court, the
plaintiff preferred the above Second Appeal.
5.The Second Appeal was admitted by this Court on
06.06.2017 on the following substantial questions of law:
"1.Whether the Lower appellate court right in
dismissing the suit, ignoring the law that when the
defendant failed to prove the adoption of her husband by
Thandavaraya Gounder and not examining the sons of
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SA NO.334 OF 2017
Thandavaraya Gounder, Is the lower appellate court
right in not drawing adverse inference as against the
defendants?
2.Whether the lower appellate court was right in
dismissing the suit ignoring the well settled preposition of
law that even a member of coparceners resides in
somewhere from the suit property and even though the
patta granted in favour of one of the coparceners is it not
mean that all of the coparceners are in joint possession of
the property?
3.Whether the lower appellate court right in
ignoring the well settled preposition of law that the oral
partition is valid in law and in view of the oral partition
not only the father in law of the plaintiff and defendant
namely Poongavana gounder and also the brothers of
Poongavana gounder had been allotted equal share and
they got patta in view of oral partition in their respective
names?"
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SA NO.334 OF 2017
6. I have heard the submissions made on either side and
perused the materials available on record.
7.The relationship between the parties are admitted. The
plaintiff is the wife of Subramani, who is the second son of Poongavana
Gounder and the defendant is the wife of first son of Poongavana
Gounder namely Murugesan. According to the plaintiff, the property
originally belonged to Chinnayya Gounder. After his death, the eldest
son Angamuthu Gounder retained 2.50 Acres of land as his share and
divided the remaining 2.50 Acres of land equally in favour of his four
brothers. Thus, the father-in-law of the parties, derived 62 1/2 cents of
land from his father. But the plaintiff has not produced any documents to
prove that her father-in-law derived title to the said 62 1/2 cents of land.
8.It is admitted that the Suit property over which the
partition is sought for situates in S.No.310/2 measuring an extent of 60
cents. But, Ex.A1, the certified copy of the sale deed dated 16.11.1942
shows that one Angamuthu Gounder, sold 2.50 Acres of land in favour of
his brother Thandavaraya Gounder. The recitals of the said document
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SA NO.334 OF 2017
does not disclose that the property was purchased from the joint family
funds by his father in his name. On the other hand, it recites that he
derived title by way of sale deed which gives an impression that it is an
absolute property of Angamuthu Gounder. Eventhough the plaintiff has
examined himself as P.W.1, she would categorically state that she does
not have any title deed pertaining to the property. She would speak about
the relationship of the parties and about the oral partition alleged to have
taken place between them. But to substantiate her statement, she could
not produce any credible evidence or marked any documents to prove
that her father-in-law derived title to the Suit property.
9.It is admitted that the defendant's husband derived title to
60 cents of land through his adopted father Thandavaraya Gounder and
the said property is enjoyed by the defendant in S.No.310/2C and patta
was also issued in her favour. The witness, who examined as P.W.2 also,
could not substantiate the case of the plaintiff. He would state that he was
not aware of the purchase made by Angamuthu Gounder and that he had
not seen the patta issued to the brothers namely Perianna Gounder,
Thandavaraya Gounder and Poongavana Gounder and even his father.
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SA NO.334 OF 2017
Thus, the case of the plaintiff that through oral partition, the brothers
have derived 62 1/2 cents of land was not proved, particularly that her
father-in-law had derived title to the Suit property over which this
partition was sought for.
10.In the cross examination, D.W.1 would state that the Suit
property lies in two places and it was derived from the partition of the
sons of Chinnayya Gounder and that each one of the sons got 60 cents of
land and that they were in possession and enjoyment of the property
separately. But, there is no specific question put to D.W.1 as to the
property in S.No.310/2. A general statement is sought to be taken to
prove the case of the plaintiff. It is well settled that the plaintiff shall
prove her case on her own strength and she shall not find pitfalls on the
case of the defendant.
11.In so far as the defendant is concerned, the title to 60
cents of land enjoyed by her is borne out by records. The registered sale
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SA NO.334 OF 2017
deed marked as Ex.B1 (Ex.A1 also) clearly shows that her husband's
adopted father had purchased 2.50 Acres of land from his brother
Angamuthu Gounder. It is not in dispute that he sold 70 Cents to his
younger brother Sadaya Gounder and retained 1.80 Acres of land with
him. It is also not disputed that the three sons including the adopted son,
namely, the husband of the defendant, partitioned it and had taken 60
cents each. After his death, the defendant inherited the property and a
patta was also issued in her favour. To prove the same, the pattas issued
in favour of her husband were marked as Ex.B4 and Ex.B5 and after his
death, the patta issued in favour of the defendant as Ex.B6. The Kist
receipts issued in the name of Murugesan husband of the defendant as
well as the defendant herself were marked as Exs.B7 and B8.
12.When the derivation of title in favour of the defendant is
categorically proved, onus is cast on the plaintiff to prove as to how 60
more Cents of land was derived and enjoyed by her through her father-in-
law Poongavana Gounder. No such case was projected. The First
Appellate Court analysing the evidence, has given a finding that P.W.1
has admitted that patta in respect of the Suit property in S.No.310/2C
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SA NO.334 OF 2017
stands in the name of the defendant and that the derivation of title
through Thandavaraya Gounder was also admitted. Further, it is
categorically admitted by P.W.1 that the property in S.No.310/2 does not
belong to Poongavana Gounder. Therefore, the First Appellate Court has
given a categorical finding that the plaintiff has failed to prove her
entitlement to claim partition in the Suit property and declined the relief
sought for.
13. I do not find any discrepancy in the finding of the First
Appellate Court. The appellant has failed to establish the right to claim
partition. The question of law that the defendant has failed to prove
partition and derived title to the property is irrelevant as long as it is
admitted by all the parties that he has derived the share through
Thandavaraya Gounder. It is true to state that the oral partition is valid in
law. But the oral partition should be proved in the manner known to law
and that it was acted upon by the conduct of parties. There is no evidence
adduced by the plaintiff to prove that there was oral partition and it was
acted upon by the brothers. In the absence of any substantiating evidence,
the questions of law are answered against the appellant.
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SA NO.334 OF 2017
14.In fine, the Second Appeal stands dismissed. No costs.
Consequently, connected civil miscellaneous petition is closed.
15.The written arguments filed by the parties shall form part
of the record.
23.09.2021
Index : Yes/No
Internet : Yes/No
TK
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SA NO.334 OF 2017
To
1.The Subordinate Judge
Subordinate Court
Vellore.
2.The Additional District Munsif
Additional District Munsif Court
Vellore,
Vellore District.
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SA NO.334 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.334 OF 2017
23.09.2021
https://www.mhc.tn.gov.in/judis
