Madras High Court
Jeya Soundarajan @ J.Stalin .. 1St ... vs J.L.A.Pandian .. Plaintiff/1St on 25 March, 2022
SA.No.243/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.243/2022
Jeya Soundarajan @ J.Stalin .. 1st Defendant/Appellant/
Appellant
Vs.
J.Joyslin Navamanickaraj (Since Deceased)
1. J.L.A.Pandian .. Plaintiff/1st Respondent/
1st Respondent
2. Jeevananda Jothi Loganayagi
3. J.Jeya Kalyani
4. Jeva Chandrakanthi
5. Rajarathinam
6. Godwin Issac Jabaselvam
7. Hearwin Mary Jebamony
8. J.Edwin Christian Samuvel Raj .. Defendants 3 to 9/
Respondents 3 to 9/
Respondents 3 to 9
9. Rathnaprabha
10.Sherlin Prasanna Marry
11.Amala Elavarasi .. Respondents 10 to 12/
Respondents 10 to 12
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SA.No.243/2022
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree in AS.No.446/2013 dated
31.10.2019 passed by the learned VI Additional Judge City Civil Court,
Chennai dismissing the appeal and confirming the judgment and decree of
dismissal of suit in O.S.No.2026/2009 dated 30.08.2013 on the file of the
learned III Assistant Judge, City Civil Court, Chennai.
For Appellant : Mr.S.Jaganathan
JUDGMENT
(1) The unsuccessful 1st defendant in the suit in O.S.No.2026/2009
before the learned III Assistant Judge, City Civil Court, Chennai is
the appellant in the above Second Appeal.
(2) The 1st respondent in this appeal, as plaintiff, filed the suit in
O.S.No.2026/2009 for partition of his 1/7th share in the suit
properties.
(3) The suit properties consists of two items. The 1st item of the suit
properties is a house and land measuring 1200 sq.ft., and the 2 nd item
is a flat belonged to the Tamil Nadu Housing Board. The 2nd item
property is a LIG flat. The case of the 1st respondent/plaintiff in the
plaint is that both the suit properties belonged to the father of the
plaintiff and the defendants by name, Thiru.A.D.Jebamani. While
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the suit 1st item was acquired by the father of the plaintiff and the
defendants under a Deed of Gift dated 21.08.1981, the suit 2nd item
was obtained by an order of allotment in favour of their father
during the year, 1967. It is also stated that after the demise of their
father on 23.10.1988, the plaintiff and the defendants are residing in
the flat namely, the suit 2nd item. There is no dispute with regard to
the suit 1st item.
(4) However, the 1st defendant filed a written statement specifically
stating that the 1st defendant was remitting the instalments which are
due to the Tamil Nadu Housing Board and that his father promised
to get transfer of allotment of the said flat in the name of the 1 st
defendant. In other words, it is contended by the 1st defendant that
the ownership over the suit 2nd item vested with the 1st defendant on
the ground that the entire consideration for the flat was paid by the
appellant and that the plaintiff and other daughters of
Thiru.A.D.Jebamani have relinquished their rights over the suit
properties. It is contended that the plaintiff left the family
relinquishing her right over the properties of father.
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(5) The 2nd defendant who is the another brother of the plaintiff,
contended that his father settled the 1st item of the suit property
orally in his favour and that the plaintiff has no right over the 1st
item of the suit property.
(6) The 3rd defendant filed a written statement supporting the case of
defendants 1 and 2. However, defendants 4 to 6 supported the case
of the plaintiff and claimed equal share in the suit properties.
(7) The Trial Court after framing necessary issues, specifically held that
the suit items 1 and 2 were acquired by the father and that the 1 st
defendant had no right either in the suit 1st item or the suit 2nd item.
As regards the suit 1st item, there is no document by which the father
had conveyed his right over the suit 1st item to the 2nd defendant.
Therefore, the Trial Court came to the conclusion, that the suit 1st
item is the exclusive property of the father and that the plaintiff and
the defendants are entitled to equal share. As regards the suit 2nd
item, the Trial Court found that the father of the plaintiff was a
retired headmaster and getting pension from the year, 1979. From
the documents, it is established that the allotment of the suit 2 nd item
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in favour of the plaintiff 's father was made in the year, 1964 and the
payment started from the year, 1967. Since the passbook stands in
the name of the plaintiff 's father and the entire consideration had
been remitted by the father to the Tamil Nadu Housing Board till his
death in the year, 1988 as per the passbook under Ex.B13, the Trial
Court found that the 1st defendant had no right to claim exclusive
title over the suit 2nd item property. The Trial Court did not accept
the case of the 1st defendant assigning reasons. Since, the Trial Court
has found that both the suit items 1 and 2 belonged to the father of
the plaintiff, it is held that the plaintiff and the defendants are
entitled to equal share and the suit was decreed by the Trial Court as
prayed for. Aggrieved by the same, the appellant preferred an appeal
in AS.No.446/2013 before the learned VI Additional Judge, City
Civil Court, Chennai.
(8) The Lower Appellate Court also confirmed the findings of the Trial
Court and dismissed the appeals. As against the judgment and
decree in AS.No.446/2013, the above Second Appeal is preferred by
the 1st defendant/appellant.
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(9) The appellant has not raised any substantial question of law in the
Memorandum of Grounds of Appeal.
(10) Learned counsel appearing for the appellant submitted that the
plaintiff left the family in the year, 1974 and defendants 3 to 5
relinquished their rights of shares in the suit properties of their
father in lieu of substantial properties given to them at the time of
their marriage. Learned counsel also submitted that the property
described in the suit 2nd item in the plaint became the property of the
appellant as he was paying all the instalments from the income
earned by him by getting employment in abroad. Learned Counsel
also submitted that the suit is bad for non-joinder of necessary
parties. Pointing out that the defendants 2 and 3 have filed a written
statement supporting the case of the appellant the learned counsel
submitted that the suit properties were settled in favour of
defendants 1 and 2 by his father namely, Thiru.A.D.Jebamani.
Learned counsel also submitted that the Courts below have failed to
consider several documents which would show that the instalments
for the suit 2nd item was paid only by the appellant to the Tamil
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Nadu Housing Board and none of other defendants or the plaintiff
contributed any money towards sale consideration for the flat
allotted by Tamil Nadu Housing Board.
(11) This Court is unable to find any substance in the arguments
advanced in this Appeal, in view of the specific findings of the
Courts below. The appellant has not disputed the plaintiff 's right in
respect of the suit 1st item. The appellant claimed title only to the
suit 2nd item based on the remittance of instalments payable to the
Tamil Nadu Housing Board. It is to be seen that the allotment of flat
namely, the suit 2nd item in favour of the plaintiff 's father was in the
year, 1964 and the payment started from the year, 1967. The
plaintiff 's father was working as a teacher and retired from his
service long after the allotment.
(12) There is no evidence indicating or suggesting that the 1st defendant
was working abroad even at the time when the property was allotted
in favour of his father. There is ample documentary evidence in this
case to indicate that the property is the absolute property of the
father. Admittedly, the father has not executed any deed of
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conveyance in favour of appellant regarding suit 2nd item.
(13) From the nature of pleadings and evidence and having regard to
scope Section 100 of CPC this Court is unable to find any error or
illegality in the judgments and decrees of the Courts below. Finding
that the suit properties are the properties of plaintiff 's father the
Courts below have concurrently held that the plaintiff is entitled to
equal share in the suit 2nd item. This Court is unable to find any
perversity either in the approach of the Lower Courts or in the
findings given by the Courts below, this Court is unable to find any
substantial question of law.
(14) In the result, the Second Appeal is devoid of merits and hence,
dismissed.
25.03.2022
cda
Internet : Yes
S.S.SUNDAR, J.,
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SA.No.243/2022
cda
To
1.The VI Additional Judge,
City Civil Court, Chennai.
2.The III Assistant Judge,
City Civil Court, Chennai.
3.The Section Officer, VR Records,
High Court, Chennai.
SA.No.243/2022
25.03.2022
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