Madras High Court
M.Srinivasan vs Annamalai on 6 January, 2022
AS.No.858/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AS.No.858/2018
[Virtual Mode]
1.M.Srinivasan
2.B.Annapoorani .. Appellants
Vs.
1.Annamalai
2.Hari .. Respondents
Prayer:- Appeal Suit filed under Section 96 CPC and Order 41 Rule 1 CPC
against the judgment and decree passed in OS.No.260/2009 by the learned
Principal District Judge, Kancheepuram District at Chengalpattu dated
12.12.2017.
For Appellants : Ms.Anitha for Mr.R.Iyappan
For Respondents : Mr.V.Ramana Reddy
JUDGMENT
(1)The above Appeal Suit has been preferred by the defendants in the suit
in OS.No.260/2009 on the file of the learned Principal District Judge,
Kancheepuram.
AS.No.858/2018
(2)The respondents herein, as plaintiffs filed the suit in OS.No.260/2009
for partition and separate possession of their 2/4th share in the suit
property. The suit property is an extent of about 58 cents comprised in
S.Nos.192/3 and 192/4 in Pudupakkam Village, Thiruporur Sub
Registration District.
(3)It is the case of the plaintiffs that the suit property which is described as
a Nanja land, is the absolute property of the plaintiffs' mother
Tmt.Amma Kannammal and that she acquired the said property by
virtue of a Sale Deed dated 16.02.1970. Stating that Tmt.Amma
Kannammal died intestate in the year 1998, the plaintiffs came forward
with the suit for partition as the legal heirs of the deceased Tmt.Amma
Kannammal.
(4)The suit was contested mainly by the 2nd defendant by filing a detailed
written statement which was adopted by the 1st defendant. It is the case
of the 2nd defendant that the father of plaintiffs and defendants died in
the year 1982 while the 2nd defendant was very young. Though
Tmt.Amma Kannammal had managed her family and celebrated
marriages of the 2nd plaintiff and defendants, it is stated that the 2nd
defendant had some physical problem, for which the mother was always
AS.No.858/2018
worrying.
(5)It is the further case of the 2nd defendant that their mother had advised
all her sons that the suit property should be given to the 2nd defendant
as sridhana. It is further stated that all the three brothers agreed to this
course and that therefore, they handed over the suit property to the 2nd
defendant immediately after the death of their mother Tmt.Amma
Kannammal.
(6)It is further stated that the marriage of the 2nd defendant was celebrated
later on 23.06.1993. It is on the basis of such oral arragement, the 2nd
defendant contested the suit on the ground that the suit property is under
the exclusive possession and enjoyment of the 2nd defendant and that
she is alone the absolute owner of the property. It is also stated by the
2nd defendant that she had settled the suit property to her minor
daughter by a registered document dated 06.07.2009. It was further
contended that the daughter of the 2nd defendant has filed another suit
in OS.No.401/2009 before the District Munsif Court, Chengalpattu,
against the plaintiff.
(7)The Trial Court framed a specific issue, whether the suit property was
given as sridhana to the 2nd defendant at the time of marriage, and
AS.No.858/2018
found that the 2nd defendant miserably failed to prove her case
regarding the settlement / arrangement as pleaded by the 2nd defendant.
Though no ground was raised in the written statement, during the course
of argument, it was suggested before the Court that Tmt.Amma
Kannammal had one more son by name Shankar and that, he had not
been impleaded as a party. The Trial Court, by relying upon the
admission of PW1 during his cross-examination that the plaintiffs had
one more brother by name Shankar and that he was not impleaded as a
party as his whereabouts are not known, granted a decree for 2/5th share
by stating that such course would meet the ends of justice. Except
granting the decree for partition, the suit was dismissed as regards the
prayer for permanent injunction restraining the defendants from
alienating the suit property. Aggrieved by the said judgment and decree,
the present Appeal Suit is preferred by the defendants.
(8)It is unfortunate to note that in the Memorandum of Grounds, several
grounds are raised without touching the issues on the basis of which the
decree is challenged. Except stating that the 2nd appellant herein is in
continuous possession of the suit property for more than 16 years and
that the daughter of the 2nd appellant had not been impleaded as a party
AS.No.858/2018
in the suit, no other specific ground is raised challenging the findings of
the Trial Court.
(9)In the said circumstances, this Court has to consider the following
points:-
[i]Whether the suit property was given as sridhana to the 2nd
defendant at the time of her marriage?
[ii]Whether the suit is bad for non joinder of the daughter of the 2nd
defendant?
(10)Regarding the first point, the Trial Court has discussed the available
evidence and found that the 2nd defendant has failed to prove her case
regarding delivery of property to the 2nd defendant as sridhana by the
other members of the family. It is not the case of the appellants that the
property was given to the 2nd defendant by the mother herself during
her lifetime. The 1st defendant was examined as DW1. Even the 2 nd
defendant did not go to box to substantiate her case. It appears that the
1st defendant is the author of the written statement. Except the
document-Ex.B1, which is the Sale Deed executed in favour of
Tmt.Amma Kannammal and the patta under Ex.B2 in the name of
Tmt.Amma Kannammal, no other document is produced before the
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Court below by the defendants. The documents produced on the side of
the defendants, namely, Exs.B1 to B3, are only the Xerox copies. Ex.B3
is the Xerox copy of the Settlement Deed executed by the 2nd defendant
in favour of her daughter. None of these documents will show the
exclusive possession of the 2nd defendant over the suit property or the
relinquishment by brothers. It is to be seen that the Settlement Deed
was executed just few days prior to the filing of the suit. Though four
witnesses were examined, no ground is raised relying upon the nature of
evidence given by the witnesses. In such circumstances, this Court has
no valid reason to interfere with the findings of the Lower Court.
(11)As regards the second point, the suit is for partition of plaintiffs' 2/4th
share in the suit property. It is not a suit for declaration of title in
respect of the whole property. The alleged Settlement Deed under
Ex.B3 was executed only by the 2nd defendant in favour of her daughter.
The plaintiffs are not parties to the document and hence, they are not
bound by the recitals in the Settlement Deed – Ex.B3. The 2nd defendant
as a co-owner, is entitled to 1/4th share and hence, she is entitled to
dispose of her interest in favour of her daughter. Since the Settlement
Deed-Ex.B3 may be valid in respect of the share of the 2nd defendant, the
AS.No.858/2018
plaintiffs cannot be non-suited on the ground of non-joinder of the
daughter of the 2nd defendant as a party to the suit.
(12)The learned counsel for the appellants submitted that the plaintiffs are
not in joint possession and therefore, the plaintiffs ought to have paid
ad-valorem Court fee in stead of fixed court fee.
(13)This Court is able to see that the point was never raised before the
Trial Court. The issue that was framed in the Trial Court was whether
the suit had been properly valued for the purpose of Court fees. Since
the issue itself was regarding valuation of the property and not Court fee
paid by the plaintiffs, this Court is unable to consider the issue without
proper pleadings. Even assuming that the plaintiffs are entitled to raise
a ground in this appeal, this Court is unable to consider the same as the
appellants/defendants have not proved the exclusive possession of the
2nd defendant over the suit property.
(14)By way of supplementary argument, the learned counsel for the
appellants submitted that the suit has been decreed in respect of 2/5th
share by accepting the case that the plaintiffs have failed to implead one
another brother of the plaintiffs by name Shankar.
AS.No.858/2018
(15)It is to be noted that there is no plea regarding non-joinder of any
sharer to the suit in the entire written statement. The argument appears
to have been developed taking lead from the deposition of PW1 during
cross-examination about one of the sons of Tmt.Amma Kannammal. It
is the case of PW1 that the whereabouts of the other brother is not
known to anybody. In the absence of any specific grounds raised in the
written statement, this Court is unable to consider the same in this
appeal suit to tilt the balance. If the appellants have raised a specific
ground in the Grounds of Appeal for 1/4th share, this Court would have
considered the issue more seriously. In the absence of any other valid
ground, this Court is unable to sustain any of the arguments advanced by
the learned counsel for the appellants.
(16)In view of the foregoing discussion, this Court has no hesitation to
hold that there is no merits in this Appeal. Hence, the Appeal Suit fails
and is liable to be dismissed. Accordingly, the same is dismissed
confirming the judgment and decree dated 12.12.2017 passed in
OS.No.260/2009 by the learned Principal District Judge, Kancheepuram
AS.No.858/2018
District at Chengalpattu. No costs. Consequently, connected
miscellaneous petition is closed.
06.01.2022
AP
Internet : Yes
To
1.The Principal District Judge, Kancheepuram at Chengalpattu.
2.The Section Officer, VR Section, High Court, Madras.
AS.No.858/2018
S.S.SUNDAR, J.,
AP
AS.No.858/2018
06.01.2022
https://www.mhc.tn.gov.in/judis 10
