Madras High Court

S.Chandrasekaran vs A.S.Chinnamuthu (Died) on 18 April, 2022

                                                                                S.A.No.588 of 2010
                                                                              and M.P.No.1 of 2010


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 18.04.2022

                                                     CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                               S.A.No.588 of 2010
                                                       and
                                                M.P.No.1 of 2010

                     S.Chandrasekaran                                 ...Appellant
                                                        Vs.
                     1.A.S.Chinnamuthu (Died)
                     2.M.Senthilkumar
                     3.P.Kulandaivelu
                     4.P.Sellakumar
                     5.A.Prabakaran
                     6.C.Govindammal
                     7.C.Balamurugan
                     8.C.Sudha
                     9.C.Boopathi Rajan                              ... Respondents

                     (R1 died RR6 to 9 brought on record as legal heirs of the deceased R1
                     vide Court order dated 31.03.2022 made in C.M.P.No.6332 of 2021 in
                     S.A.No.588 of 2010 )

                     (Respondents 2 to 5 have been given up in the first appeal hence they are
                     also not necessary parties for the present second appeal. They are hereby
                     given up in the second appeal)




                     Page 1 of 13

https://www.mhc.tn.gov.in/judis
                                                                                  S.A.No.588 of 2010
                                                                                and M.P.No.1 of 2010


                     Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the
                     decree and judgment dated 19.06.2008 passed in A.S. No.14 of 2008,
                     on the file of the Principal District Court, Salem, upholding the decree
                     and judgment dated 19.01.2007 passed in O.S. No.524 of 1993, on the
                     file of the Additional Sub Court, Salem.


                                  For Appellant           : Mr.J.Hariharan
                                                           for M/s.V.Nicholas
                                  For RR6 to 9            : Mr.K.Bijai Sundar

                                  For RR2 to 5            : Given up

                                                     JUDGMENT

The appellant is the first defendant in O.S.No.524 of 1993 on

the file of the Additional Sub Court, Salem. The first respondent (since

deceased) filed the suit for partition of suit properties into two equal

shares and to allot one such share to him and also for rendition of

accounts and for costs.

2. During the pendency of the present second appeal the first

respondent/plaintiff died and his legal heirs were brought on record as

respondents 2 to 5.

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

3. For the sake of convenience, the parties are referred to as per

their ranking before the trial Court and at appropriate places, their rank in

the present appeal would also be indicated.

4. The plaintiff and the first defendant are brothers and the

other defendants in the suit in O.S.No.524 of 1993 are tenants in the suit

properties. The suit properties were purchased by the plaintiff and the

first defendant through two registered sale deeds dated 31.05.1976

(Ex.A1) and 12.08.1978 (Ex.A2).

5. The case of the plaintiff is that though the first defendant is

receiving rents from the tenants, did not pay the share of the plaintiff and

that the legal notice dated 07.06.1993 (Ex.A3) issued by the plaintiff to

the defendants in this regard, did not evoke any response from the first

defendant. Therefore, he filed the suit for partition of the suit properties

into two equal shares and to allot one such share to him and also for

rendition of accounts.

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

6. The first defendant filed a written statement contending that

the suit properties absolutely belonged to him and that the plaintiff is

only a name lender. According to him, he paid the entire sale

consideration and also put up a superstructure in the suit properties and

that no amount was paid by the plaintiff for the same. It is also his

contention that ten years prior to the filing of his written statement, the

defendant paid a sum of Rs.30,000/- for the educational expenses of the

plaintiff's children and another sum of Rs.20,000/- for purchase of a land

by the plaintiff and that when the defendant insisted the plaintiff to return

the said amount to him, the plaintiff had filed the present suit with false

allegations. Therefore, he prayed for the dismissal of the suit.

7. The trial court after framing appropriate issues and after full

contest decreed the suit vide its decree and judgment dated 19.01.2007

on the following grounds :

i. Both the plaintiff and the first defendant were working as teachers

and a perusal of the sale deeds (Ex.A1 & Ex.A2) clearly shows

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

that the plaintiff and the first defendant are co-owners of the suit

properties.

ii. Though the first defendant alleged that he put up a superstructure

in the suit properties, from out of his own funds he did not

substantiate the same by adducing acceptable evidence.

iii. Even though the plaintiff has not been receiving rents from the

tenants, he is deemed to be in constructive possession of the suit

properties as a co-owner.

iv. Though the suit was filed by the plaintiff in the year 1993, the

defendant filed his written statement only in the year 2001 and that

too after passing of an ex parte preliminary decree in the suit.

v. The first defendant protracted the suit proceedings as far as

possible even though the plaintiff was aged 70 years and therefore

he is liable to pay exemplary costs of Rs.5,000/- to the plaintiff.

8. The other defendants who are all the tenants in the suit

properties remained absent and were set ex parte.

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

9. Aggrieved over the decree and judgment passed by the trial

Court, the first defendant filed an appeal in A.S. No.14 of 2008 before

the Principal District Court, Salem. The learned Principal District Judge,

after analysing the oral / documentary evidence adduced on both sides,

upheld the findings recorded by the trial court and dismissed the appeal.

10. Notice of motion was ordered to the respondents and after

several adjournments, the case was posted for hearing today. In the

Memorandum of grounds, the appellant has raised the following

substantial questions of law.

i & ii. When the defendant states that he purchased the suit

properties and also put up a superstructure over there whether the Courts

below were right in holding that the plaintiff is also a co-owner of the

suit properties?

iii. Whether the Courts below are correct in granting the relief

of partition in favour of the plaintiff?

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

11. Heard Mr. J.Hariharan for M/s.V.Nicholas, learned

counsel for the appellant and Mr.K.Bijai Sundar, learned counsel for the

respondents 6 to 9.

12. Mr. J.Hariharan, learned counsel for the appellant drew the

attention of this Court to the evidence of the plaintiff (P.W.1) and

contended that the plaintiff could not state as to who are all the tenants in

the suit properties and also when was the superstructure put up.

According to him, both the Courts below did not take this aspect into

consideration before passing a decree in favour of the plaintiff. It is also

his contention that both the Courts below merely based on the sale deeds

(Ex.A1 & Ex.A2) had held that the plaintiff is a co-owner, especially,

when the tenants have been continuously paying the rents only to the first

defendant and not to the plaintiff. He therefore, prayed for allowing this

appeal.

13. Per contra, Mr.K.Bijai Sundar, learned counsel for the

respondents 6 to 9 contended that the first defendant though filed the

present second appeal did not bring on record the legal heirs of the

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

deceased plaintiff and only at instance of the legal heirs of the plaintiff

they were brought on record as respondents 6 to 9. He also contended

that the first defendant, as rightly pointed out by the trial Court, did not

file the written statement and only after passing ex parte preliminary

decree of partition, he filed a petition to set aside the ex parte decree

along with a condone delay petition and filed the written statement after

a lapse of 14 years. Thus, he succeeded in protracting the proceedings. It

is further contended that when the first defendant is admittedly a teacher

by profession, it is stated in the written statement that the plaintiff, taking

advantage of the ignorance of the first defendant, had filed the suit in

order to grab the property of the first defendant. According to him, both

the Courts below had concurrently held that the plaintiff is entitled to

half share in the suit properties and that there is no substantial question

of law involved in the present second appeal. Therefore, he prayed for

the dismissal of the present second appeal.

14. The plaintiff and the first defendant are brothers.

Admittedly, the suit properties were purchased in the name of the

plaintiff and the first defendant and this is evidenced by the sale deeds

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

(Ex.A1 & Ex.A2). The first defendant's contention is that he purchased

the suit properties and included the name of the plaintiff in the sale deeds

since he (the plaintiff) is the eldest member of the family. According to

him, he paid the entire sale consideration and also put up a superstructure

in the suit properties. Both the Courts below had concurrently held that

when the sale deeds are in the names of two brothers, they are considered

to be co-owners and the burden of proof lies on the first defendant to

substantiate that he paid the entire sale consideration and that the first

defendant did not discharge this burden by adducing acceptable oral /

documentary evidence. The first defendant also did not adduce any

evidence to show that he put up the superstructure over the suit

properties. In fact, the first appellate Court in paragraph No. 7 of its

judgment had observed as follows :

"The contention of the first defendant that the plaintiff being elder member of the family, his name was nominally included in the sale deeds, cannot be accepted. Further, if really the property absolutely belongs to the first defendant, property tax receipts need not be in the joint name. Though

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

the building was constructed in the year 1985, tax was collected in the joint names of the plaintiff and the first defendant. The first defendant who set up title on himself has not even filed the building plan and permit. The non-production of the building plan and permit show that it was obtained in the joint names of the plaintiff and the first defendant. The first defendant has examined two witnesses to prove that he alone provided consideration for purchase of the property and constructed building at his own costs. There is no supporting document to show that purchase of materials was done by the defendant himself for construction of the building.

There is also no explanation from the first defendant for the issue of property tax receipts in the name of himself and the plaintiff. The property tax was paid by the plaintiff and the first defendant. Further, the sale deeds for the property are also in the name of the plaintiff and the first defendant. Sale deeds and the tax receipts show that the property belongs to the plaintiff and the first defendant and they are in enjoyment of the property as co-owners. Therefore, the plaintiff is

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010

entitled to half share. In view of the above discussion it is held that the property is not the self-acquired property of the first defendant and it is the joint property belonging to the plaintiff and the first defendant and it is the co-ownership property and the plaintiff is entitled to half share over the property, and these points are answered accordingly."

All the above observations of the first appellate Court are based on the

proper appreciation of evidence and by no stretch of imagination they

can be said to be perverse. Since it is admitted by the first defendant that

he is receiving the entire rents from the tenants, he has to render accounts

to the plaintiff. The plaintiff, as a co-owner of the suit properties, is

entitled to half share in the suit properties. Moreover, the oral evidence is

also excluded under Section 92 of the Indian Evidence Act for

contradicting the terms of a contract where the deed is proved. The

substantial questions of law raised in the present second appeal are only

with regard to factual aspects of the case. In fact, there is no substantial

question of law involved in the present second appeal and therefore, the

https://www.mhc.tn.gov.in/judis S.A.No.588 of 2010 and M.P.No.1 of 2010