Madras High Court
Kuppayee vs Chinna Pillai @ Chinnaponnu on 18 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.624 of 2012
1. Kuppayee
2. Aanai Gounder ..Defendants / Appellants
Appellants
Vs.
1.Chinna Pillai @ Chinnaponnu
2. Vaithilingam ..Plaintiffs/Respondents/
Respondents
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure against the judgment and decree dated
16.02.2012 passed in A.S.No.14 of 2011 on the file of Sub Court,
Mettur, confirming the judgement and decree dated 23.12.2010
passed in O.S.No.25 of 2008 before the District Munsif's Court,
Mettur.
https://www.mhc.tn.gov.in/judis
For Appellant : Mr.C.Prabakaran
For Respondents : Mr.A.Sundaravadhanan
Judgement
The defendants are the appellants in this Second
Appeal.
2. The respondents/plaintiffs filed the suit seeking for
the relief of partition and for allotment of 6/12 share in the suit
property. The plaintiffs also claimed for the relief of declaration
to declare the partition deed dated 23.4.2007 as null and void.
3. The case of the plaintiffs is that the 1st plaintiff and
the 1st defendant are co-sisters. The 2nd plaintiff is the son of
the 1st plaintiff and the 2nd defendant is the son of the 1st
defendant. One Vaithi was the father-in-law of the 1st plaintiff
and the 1st defendant and he was the grandfather of the 2nd
https://www.mhc.tn.gov.in/judis
plaintiff and the 2nd defendant. The said Vaithi had two sons viz.
KolandaiGounder and Manthiram and also a daughter
Kolandaiyammal. The 1st plaintiff married KolandaiGounder and
the 1st defendant married Manthiram.
4. The further case of the plaintiffs is that the
properties in Survey Nos. 11/6 to 11/9 and 11/11 at Panapuram
Village are joint family properties to which Vaithi and his two
sons are entitled to 1/3rd share each. On 11.6.1962, a settlement
deed was executed, marked as Ex.A1, through which the said
KolandaiGounder gifted his 1/3rd share in the joint family
properties in Survey Nos. 11/6 to 11/9 and 11/11, in favour of
the 1st plaintiff. Subsequently, the 1st plaintiff got married to the
said KolandaiGounder and she gave birth to the 2nd plaintiff. The
father in law viz. Vaithi died intestate in the year 1963. The
husband of the 1st plaintiff viz. KolandaiGounder also died 13
years before the suit was instituted. The husband of the 1st
https://www.mhc.tn.gov.in/judis
defendant viz. Manthiram died 25 years before the suit was
instituted. Thereby the plaintiffs were claiming 6/12 share in the
suit property jointly.
5. The grievance of the plaintiffs is that the defendants
were not coming forward to effect the partition. In the
meantime, the plaintiffs came to know that the defendants
executed a partition deed dated 23.4.2007, marked as Ex.A2 and
they partitioned the suit property in excess of their share. Left
with no other alternative, a legal notice was issued by the
plaintiffs on 20.12.2007 marked as Ex.A3. Since the defendants
were not coming forward to effect the partition and to cancel
the partition deed executed on 23.4.2007, the present suit came
to be filed seeking for the relief of partition and for declaring
the partition deed dated 23.4.2007 as null and void.
6. The defendants filed a written statement. They took
a stand that there was already a partition among the family
members that took place in the year 1962 and the 1/3rd share
https://www.mhc.tn.gov.in/judis
that was allotted to KolandaiGounder was settled in favour of the
plaintiffs. This was the stand taken insofar as the suit properties
situated in Survey Nos.11/6 to 11/9 and 11/11. Insofar as the suit
properties situated at Survey Nos. 10/5D, 10/5F, 10/5H, 10/5I,
10/5C,10/5E and 10/5G are concerned, the defendants took a
specific stand that it exclusively belonged to the husband of the
1st defendant and that the plaintiffs cannot claim any share in
those properties. Accordingly, the defendants sought for the
dismissal of the suit.
7. Both the Courts below after considering the facts
and circumstances of the case and on appreciation of oral and
documentary evidence, concurrently held in favour of the
plaintiffs and the suit was decreed as prayed for. Aggrieved by
the same, the present Second Appeal has been filed by the
defendants.
8. When the Second Appeal was admitted, the following
substantial question of law was framed by this Court:
https://www.mhc.tn.gov.in/judis
Whether the Courts below were right in holding
that the joint family continued and there was no
earlier partition and hence the plaintiffs will be
entitled for the relief of partition sought for by
them after declaring the Partition Deed dated
23.04.2007 as null and void and Whether such a
finding is perverse and is contrary to the oral and
documentary evidence that are available on record ?
9. Heard Mr.C.Prabakaran, learned counsel for the
appellants and Mr.A.Sundaravadhanan, learned counsel for the
respondents. This Court also carefully went through the materials
available on record and the findings rendered by both the Courts
below.
10. There is no dispute with regard to the relationship
between the parties and also the nature of properties insofar as
Survey Nos.11/6 to 11/9 and 11/11 is concerned. Both the sides
agree that these properties are in the nature of joint family
https://www.mhc.tn.gov.in/judis
properties to which Vaithi and his two sons were entitled to
1/3rd share each. KolandaiGounder, who is the husband of the 1st
plaintiff had settled his 1/3rdshare in Survey Nos. 11/6 to 11/9
and 11/11 in favour of the 1st plaintiff. The only issue that
requires the consideration of this Court is as to whether at the
time of executing the settlement deed, the properties were
already divided among the father and his sons or what was
settled in favour of the 1st plaintiff was only the undivided 1/3rd
share of Kolandai Gounder.
11. Both the Courts below on appreciation of oral and
documentary evidence concurrently held that what was settled in
favour of the 1st plaintiff was the undivided 1/3rd share of
Kolandai Gounder. Both the Courts have assigned sufficient
reasons to come to such a conclusion. This Court does not find
any perversity in those findings. Hence, the preliminary Decree
passed in favour of the plaintiffs with regard to the properties
situated at Survey Nos:11/6 to 11/9 and 11/11 is hereby
https://www.mhc.tn.gov.in/judis
sustained and there is no ground to interfere with the same.
12. The second issue which is really in controversy in this
Second Appeal is with regard to the properties in Survey
Nos:10/5D, 10/5F 10/5H, 10/5 I, 10/5C,10/5E and 10/5G.
Admittedly, these properties stood in the individual name of the
husband of the 1st defendant. A careful reading of the plaint
shows that there is not even a single pleading available to justify
as to how the plaintiffs are claiming for a share in these
properties. Surprisingly, the Trial Court frames an issue in this
regard. The Trial Court misdirected itself in framing an issue with
regard to the nature of the property in Survey Nos: 10/5D, 10/5F
10/5H, 10/5 I, 10/5C,10/5E and 10/5G without understanding the
scope of Order XIV Rule 1 of CPC. An issue can be framed when a
material proposition of fact is affirmed by one party and denied
by the other. The plaintiffs have not even uttered a single word
as to how they are claiming for a share with regard to the
properties in Survey Nos: 10/5D, 10/5F 10/5H, 10/5 I,
https://www.mhc.tn.gov.in/judis
10/5C,10/5E and 10/5G. While so, there was no occasion for the
Trial Court to frame an issue even without a pleading.
13. A careful reading of the findings of both the Courts
below shows that the plaintiffs have developed their case in the
course of trial and started projecting a case as if the husband of
the 1st defendant had purchased the property in Survey Nos:
10/5D, 10/5F 10/5H, 10/5 I, 10/5C,10/5E and 10/5G only out of
the income of the joint family property in Survey Nos: 11/6 to
11/9 and 11/11. Both the Courts below give their findings only
based on assumptions and by relying upon the evidence of DW-1.
14. The learned counsel for the respondents submitted
that admission of a fact is the best form of proof and once DW-1
has admitted in the witness box about the non-availability of
sufficient income for the husband of the 1st defendant to
purchase the properties in Survey Nos:10/5D, 10/5F 10/5H, 10/5
I, 10/5C,10/5E and 10/5G, the natural consequence must be that
it was purchased only from the joint family income. To
https://www.mhc.tn.gov.in/judis
substantiate his submission, the learned counsel for the
respondents relied upon the judgment of the Hon’ble Supreme
Court in [Vathsala Manickavasagam and Others Vs.
N.Ganesan and Another] reported in (2013) 9 SCC 152.
15. It is now a settled law that where the plaintiffs are
claiming that certain properties standing in the name of the
husband of the 1st defendant must be treated as joint family
properties, they must establish the following:
a) That there was a joint family nucleus.
b) The same yielded income.
c) The income derived from the joint family
properties was used towards incurring the family
expenses.
d) There was surplus income after meeting the
family expenses sufficient enough to purchase the
properties in the individual name of the husband of
the 1st defendant and ;
https://www.mhc.tn.gov.in/judis e) That the husband of the 1st defendant did not
have sufficient independent income to purchase the
properties in his individual name.
16. The burden of proof lies on the plaintiffs to establish
the above ingredients. In the present case, the plaintiffs have
not even pleaded as to why the properties in Survey Nos: 10/5D,
10/5F 10/5H, 10/5 I, 10/5C,10/5E and 10/5G should be treated
as joint family properties. They have attempted to build up a
case in the course of evidence and both the Courts below held
that the properties in Survey Nos:10/5D, 10/5F 10/5H, 10/5 I,
10/5C,10/5E and 10/5G were purchased by the husband of the
1st defendant from the joint family nucleus, on mere surmises
and assumptions. These findings rendered by both the Courts
below goes against the settled law and it suffers from perversity.
Hence the same requires the interference of this Court.
17. Both the Courts below found that all the suit
https://www.mhc.tn.gov.in/judis
properties are in the nature of joint family properties and hence,
passed the preliminary Decree. The Lower Appellate Court
allotted 21/48th share in favour of the 1st plaintiff and 3/48th
share in favour of the 2nd plaintiff. The Appellate Court only
modified the shares allotted to the 1st and 2nd plaintiffs after
taking into consideration the status of the 1st plaintiff and the 1st
defendant qua their respective husbands and mother.
18. In view of the above findings, both the Courts below
interfered with the partition deed that was executed on
23.4.2007 between the 1st and 2nd defendants and held it to be
null and void. The partition deed is liable to be interfered only
insofar as it deals with Survey Nos:11/6 to 11/9 and 11/11 and
there is no ground to interfere with the same insofar as the
properties in Survey Nos:10/5D, 10/5F 10/5H, 10/5 I,
10/5C,10/5E and 10/5G are concerned. To that extent, the
Judgement and Decree passed by both the Courts below requires
modification. The substantial question of law framed by this
https://www.mhc.tn.gov.in/judis
Court is answered accordingly.
19. In the result, the Second Appeal is partly allowed.
The Judgement and Decree of the Trial Court insofar as granting
a preliminary Decree in favour of the plaintiffs for properties in
Survey Nos:10/5D, 10/5F 10/5H, 10/5 I, 10/5C,10/5E and 10/5G
is concerned, the same is set aside. The preliminary Decree
passed in favour of the plaintiff is confirmed insofar as the
properties situated in 11/6 to 11/9 and 11/11. Similarly, the
partition deed dated 23.4.2007 executed between the
defendants, is upheld insofar as it dealt with Survey Nos: 10/5D,
10/5F 10/5H, 10/5 I, 10/5C,10/5E and 10/5G. The declaratory
Decree passed by both the Courts below with respect to the
partition deed covering the properties in Survey Nos: 11/6 to
11/9 and 11/11 is concerned, the same is sustained. Considering
the facts and circumstances of the case, there shall be no order
as to costs.
18+.04.2022
https://www.mhc.tn.gov.in/judis
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
To
1. The Sub Court, Mettur,
2. The District Munsif's Court, Mettur
Copy To:-
The Section Officer
VR Section, High Court
Madras.
N.ANAND VENKATESH.,J
rka
https://www.mhc.tn.gov.in/judis
SA.No.624 of 2012
18.04.2022
https://www.mhc.tn.gov.in/judis
