Madras High Court
Gulli Alias Gavaran vs Molagu Alias Chellan on 7 June, 2022
S.A.No.384 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.384 of 2022
and C.M.P.No.8178 of 2022
Gulli alias Gavaran ...Appellant
Vs
1. Molagu alias Chellan
2. Madheswari
3. Shanthi
4. Ambika
5. Chelli
6. Elango
7. Ramamoorthy
8. Chinnathambi ... Respondents
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgement and decree of the learned Principal District Judge,
Krishnagiri dated 03.07.2017 in A.S.No.38 of 2016 partly allowing the
appeal and modifying the judgement and decree of the learned
Principal Subordinate Judge, Krishnagiri dated 20.07.2016 in
O.S.No.153 of 2013.
1/12
https://www.mhc.tn.gov.in/judis
S.A.No.384 of 2022
For Appellant : Mr.J.Hariharan
for Mr.V.Nicholas
JUDGEMENT
The second defendant in a suit O.S.No.153 of 2013 on the file of
the Subordinate Court, Krishnagiri is the appellant before this Court.
2. The parties are referred in the same rank as before the Trial
Court.
3. The plaintiffs have filed the suit O.S.No.153 of 2015 seeking
the relief of partition and separate possession of their 6/20 share in the
suit properties and for declaring the Partition Deed dated 04.05.2010
standing in the name of the defendants 2 and 5 as null and void.
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S.A.No.384 of 2022
4. The suit had been filed with reference to the following
properties:
1. S.No.757/1 Dry Hec.1-17-50 Asst Rs.0-72.
2. S.No.757/2 Dry Hec.1-21-50 Asst Rs.1-32.
5. It is the case of the plaintiffs that the suit properties and
other properties belong to the first plaintiff's grandmother one
Muniammal. The said Muniammal had a son, named, Periyannan and
three daughters, named, Mari, Chelli and Bothiri. Nearly 60 years prior
to the institution of the suit, the suit properties and other properties
were orally divided between the children of Muniammal after her death
and in this partition, the suit properties fell into the share of the said
Periyannan. The parties had taken separate possession of their
respective shares. The said Periyannan was in enjoyment of the said
properties from the date of the partition till his death on 01.03.1977.
On his demise, the suit properties devolved on the first plaintiff, the
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S.A.No.384 of 2022
defendants 1, 2, the mother of the defendants 3 and 4, named, Susila
and the 5th defendant. Periayannan's wife Chinnathai had died on
28.09.2011. The first defendant had been married as early as in the
year 1970 and the mother of the defendants 3 and 4 was married in the
year 1980 and both of them had been living in their matrimonial home
since then. On the death of the said Periyannan, the first plaintiff and
the defendants 2 and 5 were enjoying the share of Periyannan without
any partition being effected among themselves and the Revenue
records have also not been mutated. The first plaintiff, defendants 2
and 5 and Periyannan were each entitled to a 1/4th share in the suit
properties, they being coparceners. On the demise of Periyannan, his
1/4th share has to be divided amongst his children, each being entitled
to 1/20 share. By reason of this, the daughters became entitled to an
extent of 1/20 share and 3 sons were entitled to a 6/20 share.
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S.A.No.384 of 2022
6. It is also the case of the plaintiffs that the defendants 1 to 5,
who had no separate title to the suit property, all of a sudden colluded
together to de-fraud the first plaintiff of his share. To achieve this end,
they had executed a bogus Partition Deed dated 04.05.2010 in respect
of land situated in Survey Nos.757/1 and 757/2. The first plaintiff
would submit that despite his being a co-owner, no steps have been
taken to include him in the above Sale Deed. Therefore, the Sale Deed
was not binding on the first plaintiff. In the light of the above acts of
the defendants, the plaintiffs had come forward with the suit.
7. The second defendant had filed a written statement inter-
alia denying the claim of the plaintiffs and submitting that the suit
properties are his absolute properties. The second defendant would
submit that he has been in possession and enjoyment of the suit
properties, since the date of his purchase from the first plaintiff,
namely, 08.10.2009. The second defendant had filed a suit for specific
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S.A.No.384 of 2022
performance in O.S.No.175 of 2013. It is also the case of the second
defendant that originally, the first plaintiff had attempted to sell the suit
properties to some third party for a consideration of Rs.1,90,000/-. The
third party, who was also from the same locality, had conveyed the
news to him. It is also the case of the second defendant that the entire
sale consideration was paid to the first plaintiff, who however, had not
come forward to execute the Sale Deed. The second defendant would
therefore contend that the suit for partition and separate possession is
not maintainable, since the properties had already been sold to the
second defendant. Therefore, the second defendant had sought for
dismissal of the suit.
8. The defendants, 1, 3 to 5 had filed a written statement
inter-alia also seeking a partition, who claiming 1/5th share each along
with the plaintiffs. The second defendant and one Chennammal had
filed a suit O.S.No.175 of 2013 against the first plaintiff for specific
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S.A.No.384 of 2022
performance, directing the first plaintiff to execute the registered Sale
Deed in favour of them in respect of the suit properties on the basis of
the Sale Deed dated 08.10.2009.
9. The first plaintiff had denied the execution of the alleged
Sale Deed, which is sought to be projected as an Agreement of Sale by
the second defendant. The very execution of the deed has been denied
as a forged one.
10. The two suits were tried together and the learned Principal
Subordinate Judge, Krishnagiri, by a common judgment dated
20.07.2016, decreed the suit O.S.No.153 of 2013 holding that the
plaintiffs are entitled to 6/20 share in the suit properties and declare
the Partition Deed dated 04.05.2010 as null and void. The suit
O.S.No.175 of 2013 filed by the second defendant and Chennammal
was dismissed.
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S.A.No.384 of 2022
11. The learned Principal Subordinate Judge, Krishnagiri had
held that both the parties had admitted the fact that the suit properties
were the ancestral properties of one Muniammal. The first plaintiff, the
defendants 1 and 2 and the defendant-5 were the legal representatives
of Muniammal and the Partition Deed dated 04.05.2010 executed
between the second defendant and the fifth defendant under Ex.A2
without including the other family members was not binding on the
others. The Court had also observed that the alleged Sale Deed, which
is sought to be specifically enforced in the other suit O.S.No.175 of
2013, was executed before the execution of Ex.A2-Partition Deed.
12. The learned Judge had also taken into account the recitals
of Ex.B1 dated 08.10.2009, where in the schedule of properties, the
share of vendor has been described as an 1/3rd undivided share each,
which would go to show that the partition pleaded was non-existent.
Challenging the said judgment and decree, the second defendant had
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S.A.No.384 of 2022
filed A.S.No.38 of 2016 before the learned Principal District Judge,
Krishnagiri and the Appellate Court had also confirmed the judgment
and decree of the trial Court, by a common judgment dated 03.07.2017.
Challenging the judgment and decree, the second defendant is before
this Court.
13. Heard the learned counsel for the appellant and perused the
records available on record.
14. The second defendant has claimed an exclusive right to the
suit properties on the basis of an un-registered Sale Deed dated
08.10.2009 (Ex.B1) and an earlier oral partition that has been effected
between the first plaintiff and the second defendant and other family
members. The judgments of the Courts below would clearly show that
the second defendant has not been able to establish the partition and
further Ex.B1-Sale Deed has been executed even prior to the Partition
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S.A.No.384 of 2022
Deed dated 04.05.2010. Even in the un-registered Sale Deed, the
property has been described as an undivided share. Therefore, the very
basis on which the second defendant claims a right is found to be
non-existent. The Courts below have at length dealt with the evidence
and come to the conclusion that the plaintiffs were entitled to a
partition. The appellant has not made out any question of law
warranting interference by this Court and has also not been able to
establish the perversity in the concurrent judgment and decree of the
Courts below.
15. In the result, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
07.06.2022
Index : Yes/No
Speaking order/non-speaking order
srn
https://www.mhc.tn.gov.in/judis
S.A.No.384 of 2022
To
1. The learned Principal District Judge, Krishnagiri
2. The learned Principal Subordinate Judge, Krishnagiri
3. The Section Officer, V.R.Section, High Court, Madras
https://www.mhc.tn.gov.in/judis
S.A.No.384 of 2022
P.T.ASHA, J.,
srn
S.A.No.384 of 2022
and
C.M.P.No.8178 of 2022
07.06.2022
https://www.mhc.tn.gov.in/judis
