Madras High Court
Nagan vs Chennammal .. Plaintiff/ on 28 February, 2022
SA.No.142/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.142/2022 and CMP.No.2899/2022
1.Nagan
2.Raman
3.Mangammal .. Defendants/Appellants
Vs.
Chennammal .. Plaintiff/Respondent
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the decree and judgment dated 19.07.2021 made in
AS.No.09/2019 on the file of the learned Subordinate Judge, Palacode as
confirming the judgment and decree dated 29.08.2011 made in
O.S.No.46/2008 on the file of the District Munsif Court, Palacode.
For Appellant : Mr.V.R.Anna Gandhi
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SA.No.142/2022
JUDGMENT
(1) The defendants in the Suit in O.S.No.46/2008 on the file of the
learned Subordinate Judge, Palacode are the appellants in this
Second Appeal.
(2) The respondent as plaintiff filed the Suit in O.S.No.46/2008 on the
file of the District Munsif Court, Palacode for partition of her 1/5 th
share in all the Suit properties.
(3) The Suit properties are described as Item Nos. 1 and 2. It is admitted
that the plaintiff and defendants 2 to 4 are the children of one
Venkatan. The 1st defendant is the wife of Venkatan and mother of
plaintiff and defendants 2 to 4.
(4) The Suit properties were purchased by the said Venkatan by virtue
of a registered Sale Deed dated 19.06.1968 and another Sale Deed
dated 28.04.1978. The said Venkatan died on 13.03.1992 leaving
behind the plaintiff and defendants as his legal heirs. It is the case of
plaintiff that the 3rd defendant was managing the Suit property as
Kartha on behalf of all and the plaintiff was also contributing her
assistance in the development of the Suit properties. Stating that the
3rd defendant refused to pay her share in the income from the Suit
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properties for about one year before the Suit, the plaintiff filed the
Suit for partition and separate possession of her 1/5 th share in all the
Suit properties and for consequential injunction restraining the
defendants from alienating the properties.
(5) The 3rd defendant filed a Written Statement, setting up a oral
partition between defendants 2 and 3 who are the sons of Venkatan.
It is stated by the 3rd defendant that defendants 1 and 4 have
relinquished their right in all the Suit properties. In the Written
Statement, a specific plea was also raised to the effect that the father,
Venkatan after giving the plaintiff and 4th defendant in marriage by
spending a lot of money, orally divided the properties between
defendants 2 and 3. The plaintiff 's case of joint possession is also
specifically disputed by the 3rd defendant.
(6) The Trial Court framed an issue whether the plaintiff is entitled for
partition and held that the plaintiff is a legal heir to the
father/Venkatan under Section 8 of the Hindu Succession Act and
therefore, she is entitled to 1/5th share. As regards the oral partition
pleaded by the plaintiff, the Trial Court found that the oral partition
is not proved. Though the defendants produced before the Lower
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Court a document under Ex.B1 to prove that defendants 1 to 4 have
relinquished their right, the document Ex.B1 is held not binding on
the plaintiff to refuse her any share.
(7) The Trial Court held that the defendants had not proved the case of
division by examining any one of the panchayatars or any
independent witness. Though the 4th defendant was examined as
DW1 and deposed that there was an oral partition between
defendants 2 and 3 and that the properties were divided during the
life time of father, the Trial Court disbelieved her evidence
assigning reasons.
(8) The 4th defendant had already relinquished her right in favour of
defendants 2 and 3. Therefore, her evidence was not given much
importance by the Trial Court. The Suit was therefore decreed as
prayed for. Aggrieved by the judgment and decree of the Trial
Court, the appellants preferred an Appeal in AS.No.09/2019 before
the Sub Court, Palacode. The Lower Appellate Court also concurred
with the findings of the Trial Court and held that the oral partition
which was 20 years before the Suit is not proved by the appellants.
Since, the Suit property is the self acquired property of father, as
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SA.No.142/2022
admitted by the parties, the Lower Appellate Court also found that
the plaintiff is entitled to 1/5th share. Though it was contended that
the oral partition is proved by Ex.B1 namely the release deed
executed by defendants 1 and 4 in favour 3rd defendant, the Lower
Appellate Court found that the plea of oral partition itself is
contrary to the recitals of document under Ex.B1.
(9) Aggrieved by the concurrent judgments and decrees of the Courts
below the defendants have preferred the above Second Appeal.
(10) The appellants have raised the following substantial questions of
law in the Memorandum on Grounds of Appeal.
1.Whether the Suit filed after 25 years from the date
of death of Venkatan is maintainable in Law?
2.Whether the decree and judgment of Courts below
for partition sustainable when the appellant has
established oral partition even during life time of
Venkatan supported/evidenced by mutation of
revenue records?
(11) Learned counsel appearing for the appellants submitted that the Suit
for partition is filed 25 years after the death of Venkatan and the
plaintiff has not proved her joint possession all these years. Learned
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counsel then submitted that by virtue of the oral partition during the
life time of father, the plaintiff is not entitled to sue for partition.
The submission of learned counsel appearing for the appellants is
unsustainable having regard the factual findings against the
appellants by the Courts below.
(12) As regards the oral partition, the Courts below specifically found
that the defendants/appellants have not proved the alleged oral
partition. There is no document to prove oral partition. Except the
evidence of PW1 and PW2 who are defendants 3 and 4, no other
independent witness was examined to prove the oral partition. As a
matter of fact, the Lower Appellate Court found that the oral
partition alleged by the 3rd defendant is contrary to the recitals of the
Ex.B1 under which the defendants 1 and 4 had relinquished their
right in favour of defendants 2 and 3.
(13) The evidence of DW2 cannot be relied as she was always with the
3rd defendant and had already relinquished her right in favour of
defendants 2 and 3. When defendants 2 and 3 have obtained a
release deed from defendants 1 and 4, that itself indicates that there
was no division nor a partition among other members of the family.
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Even if a partition had taken place, the same is not binding on the
plaintiff. The case of the appellants that their father during his life
time, had effected partition and allotted specific shares to defendants
2 and 3 cannot be believed as it is quiet unnatural especially when
the father was enjoying the property as his own till his death.
(14) There is no evidence produced before the Courts below to show that
defendants 2 and 3 were enjoying the property during the life time of
father. The revenue documents filed by defendants are of recent
origin, obtained just after the Suit. In the absence of any independent
evidence or document, this Court is unable to accept the case of
appellants that there was a oral partition in the family during the life
time of father, Venkatan. The Courts below have rendered findings
concurrently against the appellants by proper appreciation of
pleadings and evidence. This Court is unable to find any irregularity
or illegality either in the findings or in the decision making process.
(15) It is not brought to the notice of this Court that the findings of the
Courts below are contrary to any material document which had
escaped the eyes of Courts below. This Court after going through the
judgments of Court below is unable to find any perversity. In the
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above circumstances this Court find no merits in the appeal. Hence,
Second Appeal is dismissed. Considering the relationship between
the parties, there shall be no order as to cost. Consequently
connected Civil Miscellaneous Petition is closed.
28.02.2022
cda
Internet : Yes
To
1. The Subordinate Judge, Palacode.
2. The District Munsif Court, Palacode.
3. The Section Officer, VR Records,
High Court, Chennai.
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SA.No.142/2022
S.S.SUNDAR, J.,
cda
SA.No.142/2022
28.02.2022
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