Madras High Court
K.Balasubramanian vs Sumithra Devi ..1St on 28 March, 2022
A.S. (MD) No. 122 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 122 of 2016
and
C.M.P. (MD) No. 8378 of 2016
K.Balasubramanian ... Appellant / 5th Defendant
Vs.
1. Sumithra Devi ..1st Respondent / Plaintiff
2. O.Vikramathithan
3. Revathy
4. G.Kaladevi
5. Mekala Devi ... Respondents 2 to 5 / Defendants 2 to 5
6. Catholic Syrian Bank,
Dindigul Branch,
Through its Branch Manager,
Having its office Palani Road,
Dindigul. .. .6th Respondent / 6th Defendant
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A.S. (MD) No. 122 of 2016
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code
against the judgment and decree dated 12.04.2016 made in O.S. No. 2 of
2014 on the file of the Additional District Court, Dindigul dated 12.04.2016.
For Appellant : Mr.V.Meenakshi Sundaram
for Mr.R.Ramadurai
For Respondents : Mr.J.Lawrance for R1
Mr.P.Pandivel for R6
No appearance for R2 to R5
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree,
dated 12.04.2016 passed by the learned Additional District Judge, Dindigul
in O.S. No. 2 of 2014.
2.The appellant is the fifth defendant; the plaintiff has filed a suit for
partition by alleging that the suit properties were originally belonged to her
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A.S. (MD) No. 122 of 2016
father Ocha Thevar by virtue of a registered sale deed, dated 22.08.1983;
subsequent to the sale, he took possession of the sale property and was in
enjoyment of the same till his lifetime; Ocha Thevar passed on 19.10.2002
leaving behind his two sons and one daughter, the plaintiff therein; wife of
Ocha Thevar namely, Thinniyammal had predeceased him in the year 1991;
1st defendant is one of the brother of the plaintiff and defendants 2 to 4 are
the legal heirs of the other brother by name Karnan, who died on
10.06.1988; after the demise of Ocha Thevar, the plaintiff and defendants 1
to 4 inherited the suit properties and they are in enjoyment of the same; after
the death of Ocha Thevar, the first defendant who is the elder son was
managing the suit property; however his possession was jointly along with
other defendants 1 to 4 and the plaintiff; as the legal heir of the deceased
father Ocha Thevar, the plaintiff is entitled to 1/3rd in the suit property; the
plaintiff came to know that the first defendant had colluded with the fifth
defendant and created a sham and nominal sale deed in respect of the suit
property and hence she is ignoring the same; since the defendants did not
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A.S. (MD) No. 122 of 2016
come forward for partition and separate possession of the plaintiff's 1/3rd
share, she has filed a suit for partition; the fifth respondent after purchasing
the suit property from the first defendant, had mortgaged the same in favour
the sixth defendant and hence the sixth defendant is also added as a party.
3.The first defendant has filed a written statement by admitting the sale deed
in favour of his father in respect of the suit property and that the plaintiff is
his sister; the defendants 2 to 4 are the legal heirs of his predeceased brother
namely, Karnan; the plaintiff was was given Sridhana and gold jewels at the
time of marriage; hence she orally relinquished her share in the suit property
in favour of the first defendant; only because the first defendant's entire
interest in the suit property, he alienated the same in favour of the fifth
respondent; the fifth respondent, who purchased from the first defendant
has stated that the plaintiff is not entitled to get any share in the suit
property and she had never been in enjoyment of the same; the first
defendant was enjoying the property under his exclusive possession and
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A.S. (MD) No. 122 of 2016
enjoyment from 07.02.2000; even if the plaintiff is having any share in the
suit property, the same is barred by limitation; the fifth defendant is a
bonafide purchaser and hence, the suit should be dismissed; however, the
plaintiff had filed the suit for partial partition without adding the other
properties of her father, hence, the suit itself is not maintainable.
4. On the basis of the above pleadings, the learned trial Judge has framed
the following issues:
(i) Whether the plaintiff is entitled for 1/3rd share in
the suit property?
(ii) Whether the 5th defendant is bonafide purchaser of
the suit property?
(iii) Whether the suit claim is barred by limitation?
(iv) Whether the plaintiff is entitled for partition as
prayed for?
(v) To what other relief as prayed for?
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A.S. (MD) No. 122 of 2016
5.During the course of trial, on the side of the plaintiff, the plaintiff,
examined herself as P.W.1 and three documents were marked as Ex.A.1 to
Ex.A.3. On the side of the defendants, two witnesses were examined as
D.W.1 and D.W.2 and ten documents were marked as Ex.B.1 to Ex.B.10. On
conclusion of the trial, the learned Judge allowed the suit and passed a
preliminary decree for partition of the plaintiff's 1/3rd share in the suit
property. It is also observed that the fifth defendant interest's would bind the
first defendant in his 1/3rd share that would be allotted to him. Aggrieved
over the same, the fifth defendant has preferred an Appeal.
6.The learned counsel for the appellant / 5th defendant submitted that the
appellant is a bonafide purchaser and he believed the oral partition said to
have been taken place, in which, the property was allotted to the share of the
first defendant; the plaintiff, who was examined as PW1, stated that she was
given with some other properties of the father and that would show the oral
partition; the evidence would further reveal that she did not include the
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A.S. (MD) No. 122 of 2016
properties of Ocha Thevar and hence, the suit is bad for partial partition; in
fact the suit itself has been filed in collusion with the first defendant to
defeat the interest of the fifth defendant; hence, the appeal should be
allowed.
7.The learned counsel for the first respondent/ plaintiff submitted that the
fifth defendant knowing fully well that the suit property belonged to Ocha
Thevar had purchased the same without verifying with the other legal heirs
of Ocha Thevar; he had purchased the suit property in collusion with the
first defendant which would defeat the interest of plaintiff and others; the
appellant / fifth defendant being an alienee, he cannot claim that the suit is
barred for partial partition and that some of the properties of Ocha Thevar
were not included in the suit; the appellant is not a bonafide purchaser and
he had purchased the property by knowing very well that it would affect the
interest of other legal heirs of the deceased Ocha Thevar; hence, the appeal
should be dismissed.
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A.S. (MD) No. 122 of 2016
8.Considering the rival submissions of the parties, I feel that the following
point for consideration is relevant for the purpose of this Appeal Suit:
Whether the appellant is a bonafide purchaser for
consideration?
9.The matter lies in a narrow campus because of the fact that the origin of
the title of the suit property vested with the father of the plaintiff, was
accepted. It is also not denied that the plaintiff is one of the legal heirs in
her capacity of daughter of the deceased Ocha Thevar. Ocha Thevar has
purchased the suit property by virtue of a sale deed, dated 22.08.1983,
which is marked as Ex.A.2. Ocha Thevar died intestate on 19.10.2002 and
his wife also pre deceased him. Ocha Thevar had two sons and one
daughter, who is the plaintiff herein. The first defendant is one of the sons
of Ocha Thevar and other son by name Karnan died on 10.06.1988, leaving
behind his wife and children as his legal heirs. They are arrayed as
defendants 2 to 4.
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A.S. (MD) No. 122 of 2016
10.The suit property being the self acquired property of late Ocha Thevar
and Ocha Thevar died intestate, his sons and daughter would get equal share
in the suit property. Accordingly, the plaintiff, the first defendant and the
deceased Karnan would get 1/3rd share each. Since the defendants 2 to 4 are
the legal heirs of Karnan, their branch would get 1/3rd share of Karnan.
11.There is no dispute on the point of entitlement. However, the appellant
has submitted that there was an oral partition in the family, under which, the
suit property was allotted to the share of the first defendant and the first
defendant was in exclusive possession and enjoyment of the suit property
and after verifying its genuineness the appellant had purchased the suit
property.
12.The learned counsel for the appellant invited the attention of this Court
to the evidence of PW1. In the evidence of PW1, she has stated about
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A.S. (MD) No. 122 of 2016
getting some more properties from her father and she also admitted about
the existence of other properties, which were not included in the suit. So, it
is claimed by the appellant / fifth defendant that there was an oral partition
and the suit is barred for partial partition. It is to be noted that the above
statement given by PW1 in the cross examination did not contain anything
as to the other shares if any, allotted to other brothers in the alleged oral
partition. Though it is stated by PW1 that she has got some other properties,
she cannot state in unequivocal term that there was an oral partition, in
which, all the sharers have been given their respective shares of properties.
The appellant, being alienee of the first defendant, he can stand in the shoes
of the first defendant. But he cannot plead partial partition. The execution
of the decree is also possible, because the entitlement between the sharers is
not in dispute.
13.Being a purchaser, the fifth defendant ought to have verified the records
in order to confirm whether he purchased the suit property in a bonafide
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A.S. (MD) No. 122 of 2016
belief that the properties belonged to his vendor. The evidence of DW1
would show that he had seen the Encumbrance Certificate from which he
learnt that the suit property was purchased by Ocha Thevar by virtue of sale
deed dated 22.08.1983. Having known about the sale deed in the name of
the father of the first defendant, it would be obligatory on the part of the
appellant to verify whether Ocha Thevar was alive or died and if he died,
who were his legal heirs.
14.The cross examination of DW1 would show that he did not verify these
material aspects. He knew pretty well that the title deed did not stand in the
name of the first Defendant but stood in the name of Ocha Thevar. He has
produced Ex.B.5 - patta in the name of the first defendant in order to
canvass his point that he believed that the property was allotted to his
vendor and revenue records stood in his name.
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A.S. (MD) No. 122 of 2016
15.On a perusal of Ex.B.5, it is seen that it was subsequent to the suit and
hence, it cannot be relied on. At any stretch, the appellant / fifth defendant
cannot be considered as a bonafide purchaser by verifying the entitlement of
the other legal heirs of Ocha Thevar. Since he has purchased the suit
property from one of the legal heirs, who had an undivided 1/3 rd share
alone in the suit property, the vendor namely, the first defendant could have
passed title in favour of him only to that extent.
16.The learned trial Judge has rightly appreciated the facts and evidence and
applied the law suitable to the facts of the case. It is also observed that the
fifth defendant, being the purchaser from the first defendant, can derive the
share of the first defendant and participate in the final decree proceedings.
In my considered view, there is no legal or factual infirmity in the judgment
of the trial court warranting any interference by this Court.
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A.S. (MD) No. 122 of 2016
In the result, this Appeal Suit is dismissed and judgment and decree of the
learned Additional District Judge, Dindigul dated 12.04.2016, made in O.S.
No. 2 of 2014 is confirmed. No costs. Consequently, connected
Miscellaneous Petition is closed.
28.03.2022
Index : Yes / No
Speaking Order : Yes / No
vji
To
1. The learned Additional District Judge,
Dindigul
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No. 122 of 2016
R.N.MANJULA, J.
vji
A.S. (MD) No. 122 of 2016
and
C.M.P. (MD) No. 8378 of 2016
28.03.2022
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