Madras High Court
Shanmugaraja vs Ayyadurai Nadar (Died) on 22 December, 2022
A.S.(MD)No.48 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:22.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE SUNER MOHAN
A.S.(MD)No.48 of 2009
and
M.P(MD)Nos.1 & 2 of 2011
1.Shanmugaraja
2.Ponnusamy .. Appellants/Defendants
Vs.
1.Ayyadurai Nadar (died)
2.Ganesan .. Respondents/Plaintiffs
3. Rajkumar
4.Sugumar
5.Selvi
6.Rajakumari
7.Shekar
8.Durai
9.Suganthi
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10.Vasanthi
11.Jayanthi
12.Santhi
13.Indira Sujatha
14.Chandra Tomas .. Respondents
[R3 to R14 are brought on record as
LRs of the deceased R1 vide order
dated 14.02.2002 made in
C.M.P(MD)No.11313/2021]
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment and decree, dated 06.03.2007 made in O.S.No.60 of 2005,
on the file of the Additional District Judge/Fast Track Court No.1, Tirunelveli.
For Appellants : Mr.T.Antony Arulraj
For Respondents :Mr.S.Rangasamy for R2
:Mr.S.Kumar for R3, R5 & R6
:No appearance
for R4,R7, R9, R11 R12 & R13
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A.S.(MD)No.48 of 2009
JUDGMENT
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
This Appeal suit is arising out of preliminary decree passed by the
Court below in a partition suit preferred by the respondents.
2. The sum and substance of the pleadings runs as follows:
The suit schedule property belongs to Subbiah Nadar. He had four
sons and four daughters. Subbiah Nadar died in the year 1976 intestate leaving
behind his wife and sons. Later, his wife died in the year 1992. Among the legal
heirs of Subbiah Nadar, initially a suit was filed for partition. Later, the female
heirs entered into a settlement with the male heirs and relinquished their right in
the suit property. Thus, all the four members are entitled 1/4th share each in the
suit property. While so, in the year 2001, in respect of building in item No.1 of
the suit schedule, an oral partition was effected between the parties. But it was
not given effect due to non cooperation of the defendants. In respect of the
remaining properties described in the schedule to the plaint, attempts were
made for amicable division through mediators but all the attempts went in
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A.S.(MD)No.48 of 2009
futile, which has forced the plaintiffs, who are the two sons of Subbiah Nadar,
to file the suit against the remaining two sons after casting pre suit notice dated
22.07.2005.
2.1. The suit was resisted by the defendants stating that the
arrangement between the sharers in the year 2001 is true, but the averment that
it did not given effect to, is incorrect. The first plaintiff is carrying a business at
Chennai and settled permanently at Chennai with all wealth and assets. The
second plaintiff is working as a Senior Officer in Indian Bank also beneficially
affluent. Taking note of this fact, the parties have arrived at settlement that the
plaintiffs have no right in the residential premises in Tirunelveli, which is more
fully described in item No.1 in the plaint schedule. In the year 2005, a family
arrangement was arrived at between the sons and daughters of Subbiah Nadar at
the instance of the first plaintiff in which the sons and daughters participated
and arrived at a settlement. In terms of the said family arrangement, the
plaintiffs had taken their share of the property and left the suit schedule
property to be enjoyed by the defendants. Suppressing the fact, a suit has been
filed as if no division among the legal heirs been effected. It is further
contended in the written statement that in terms of the family arrangement,
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A.S.(MD)No.48 of 2009
which claim to be acted upon by them, a sum of Rs.4,14,000/- has to be paid by
the first defendant to the first plaintiff and an identical amount to be paid by the
second defendant to the second plaintiff, thereafter, they have to register the
deeds on or before 30.10.2005 as per the family arrangement. When the
defendants inform the plaintiffs to receive the money and honour the family
arrangement by executing the deed, but they gave lame excuses and avoided
and thereafter cast a notice through their lawyer. Interim reply was given by the
defendants. Despite interim reply, the plaintiffs have rushed to the Court
suppressing the fact that the income derived from the joint family property been
properly shared by all the four sons of Subbiah Nadar every year in the month
of May after performing the annual obsequies till the year 2005. To this written
statement, a reply statement by the plaintiffs denying the averments made in the
written statement was filed.
3.After the additional written statement filed on the side of the
defendants, the Court below framed the following issues.
“1. Whether the plaintiffs are entitled to 1/4th share each in the
schedule mentioned properties?
2. Whether it is true to alleged that both the plaintiffs and
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defendants entered into a family arrangement on 27.05.2005
and same was acted upon?
3. What other relief the plaintiffs are entitled to?”
4. On behalf of the plaintiffs, both the first and second plaintiffs
mounted the witness box as P.W-1 and P.W-2, on their behalf 17 exhibits were
marked. The defendants on their part mounted witness box as D.W-1 and
D.W-2 and marked 5 exhibits.
5.The trial Court, after appreciating the evidence placed by the
respective parties, allowed the suit for partition seeking 1/4th share to each of
the parties and preliminary decree passed to that effect.
6. The trial Court, in the course of appreciating the evidence, has
observed that it is an admitted fact that the properties belonged to Subbiah
Nadar and after excluding the female heirs in view of the compromise entered
between the male heirs and female heirs, the entire suit schedule property
devolved on the parties. Ex.A1, dated 11.06.2001, the memo of arrangement in
respect of first item property not been acted upon since there is no supportive
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documents to infer that the said arrangement came into effect and relying upon
Ex.B4 and Ex.B5 letters and photographs to substantiate the plea that the shares
of the income been regularly divided among the parties, the trial Court drawn
an inference that this would only substantiate the claim of the plaintiffs that
there was no family arrangement dated 27.05.2005 as pleaded.
7. Aggrieved by the judgment and decree, the appeal suit is filed on
the ground that the trial Court erred in rejecting the plea taken by the appellants
and the documentary evidence and the oral evidence adduced on behalf of the
defendants ought to have been appreciated properly. Instead, holding that the
defendants failed to prove the family settlement arrived in the month of May
2005 is erroneous and contrary to the evidence. The trial Court ought not to
have drawn an adverse inference for not replying the pre suit notice. Further, it
erred in drawing the adverse inference for not producing the alleged family
arrangement dated 27.05.2005 inspite of the plea that the original is with the
plaintiffs and notice to produce the same was caused to the plaintiffs but they
failed to produce the documents.
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8. The points for determination is as follows:
1.Whether the Court below erred in holding that the family
arrangement dated 27.05.2005 alleged to have been entered
between the parties not given effect?
2. Whether the trial Court right in allowing the suit ascertaining
1/4th share to each of the parties in all the suit schedule
properties?
9. The admitted facts in this case is that the plaintiffs as well as the
defendants are entitled to have an equal share in the property left by Subbiah
Nadar. It is also an admitted fact that the suit schedule property are the property
left by Subbiah Nadar. In the said circumstances, since Subbiah Nadar died
intestate, the apportionment of the property as accepted by the parties, in the
normal course, each of them are entitled for 1/4th share. However, the
defendants has put forth case of family arrangement between the members first
originally in the year 2001 and reduced into writing, which is marked as Ex.A1,
but it was not acted upon. Subsequently, they arrived at an arrangement on
27.05.2005. Though the defendants were ready to perform their part of
agreement as per the family arrangement and tendered Rs.4,14,000/- each to
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both the plaintiffs, same was not received by them. Any event, they already
enforce the family arrangement but not seek for partition.
10. The issue therefore boils down as to whether the said family
arrangement dated 27.05.2005 was acted upon or enforceable.
11. The parties have not produced the said family arrangement. The
defendants are supposed to produce the document who has rely upon the
document claims that they caused notice to the plaintiffs alleging that the
original is with the plaintiffs and they should produce the same. The plaintiffs
denied the existence of such documents in their possession. Even assuming that
the document is in possession of the plaintiffs and for some reason, they have
not produced it, the defendants ought to have let evidence to show that in terms
of the family arrangement dated 27.05.2005, they have tendered Rs.4,14,000/-
each and performed their part of compromise. When it is pleaded that as per the
family arrangement, they are supposed to pay Rs.4,14,000/- each, to both the
plaintiffs, there is no material placed by the defendants to substantiate this plea.
The five documents relied by the defendants are the courier receipts, postal card
and photographs. These documents are not relevant for the Court to test and
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uphold the contention of the defendants that the family arrangement dated
27.05.2005 entered and acted upon atleast by the defendants. To be noted that
the exhibits marked as B series on behalf of the defendants are all subsequent to
the suits. Only in this context, the trial Court has made some observation that
the failure of the defendants not replying to the pre suit notice to be drawn
adverse to the defendants. The burden of proof is on the party, who pleads the
fact.
12. In this case, the factum of family arrangement dated 27.05.2005
has not proved through document, atleast the defendants ought to have let in
evidence that pursuant to the family arrangement, they have acted upon and it is
the failure of the plaintiffs to honour the terms of family arrangement. From the
records, this Court finds that the defendants have miserably failed to prove that
they compromised as per the terms of family arrangement and therefore, it
should be deemed to have been acted upon. Under these circumstances, this
Court finds that the reasoning given by the trial Court for allowing the suit for
partition is consonance with the law and facts and there is no reason to interfere
with the trial Court judgment and decree. The points for consideration is
answered accordingly.
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13. The learned counsel for the appellants would submit that pending
appeal, the first respondent/1st plaintiff died and there is some dispute between
the LRs of the deceased first respondent and the matter is now seized of by the
Hon'ble High Court in TOS No.7/2013. This Court is of the view that the
pendency of TOS has no bearing to this partition suit since this partition suit is
in respect of the share which Ayyadurai Nadar is entitled and if there is any
dispute between the LRs of Ayyadurai Nadar regarding the property inherited
by Ayyadurai Nadar, it is an independent cause of action which has to be
worked out by the legal heirs and the beneficiary of the so called Will.
14. In the result, this appeal suit is dismissed. However, there shall be
no order as to costs. Consequently, connected miscellaneous petitions are
closed.
[G.J., J.] & [S.M., J.]
22.12.2022
Index : Yes/No
Internet : Yes
PJL
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A.S.(MD)No.48 of 2009
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
PJL
To
The Additional District Judge,
Fast Track Court No.1,
Tirunelveli.
Judgment made in
A.S(MD)No.48 of 2009
22.12.2022
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