Madras High Court
Perumalraj vs Pappammal .. 1St on 10 November, 2022
A.S(MD)Nos.117 of 2013 and 9 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:10.11.2022
CORAM :
THE HONOURABLE MR.JUSTICE M.S.RAMESH
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
A.S(MD)Nos.117 of 2013 and 9 of 2017
and
M.P(MD)No.2 of 2013 and C.M.P(MD)No.464 of 2017
Muthammal(died)
1.Perumalraj
2.Sumathi
3.Mariappan
4.T.Thangaraj
5.Krishnaveni
6.Ananthi
7.Thilagavathi .. Appellants /Respondents 3 to10
/ Defendant Nos.1 to 9
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A.S(MD)Nos.117 of 2013 and 9 of 2017
in both cases
-Vs-
1.Pappammal .. 1st Respondent / Petitioner /
1st Plaintiff
2.Perumal Ammal .. Respondent /1st Respondent /
2nd Plaintiff
in both cases
Prayer in A.S.(MD)No.117 of 2013: Appeal is filed under Section 96 of
the Civil Procedure Code, against the Judgment and Decree dated
27.03.2013 made in I.A.No.96 of 2011 in O.S.No.106 of 2009 on the file
of the IV-Additional District Judge, Tirunelveli.
Prayer in A.S.(MD)No.9 of 2017: Appeal is filed under Order 41 Rule 1
&2 r/w Section 96 of the Civil Procedure Code, against the Judgment
and Decree dated 01.12.2010 made in O.S.No.106 of 2009 on the file of
the Additional District Court cum Fast Track Court No.2, Tirunelveli.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
In both cases
For Appellants : Mr.Niranjan S.Kumar
For Respondents : Mr.J.David Ganesan
for M/s.Jeyapal Associates for R1
:Mr.V.Kabilan
for M.S.Jeyakarthick for R2
COMMON JUDGMENT
N.ANAND VENKATESH, J.
The issue involved is common in both the appeals and the
parties are also common. A.S.(MD)No.9 of 2017 has been filed against
the preliminary decree passed by the Court below and A.S.(MD)No.117
of 2013 has been filed against the final decree passed by the Court below.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
2. A.S.(MD)No.9 of 2017 has been filed by the defendants
aggrieved by the judgment and decree of the Additional District Court
cum Fast Track Court No.2, Tirunelveli, made in O.S.No.106 of 2009,
dated 01.12.2010, whereby a preliminary decree was passed and 2/5th
share was allotted in favour of the plaintiffs/respondents.
3. A.S.(MD) No.117 of 2013 has been filed against the final
decree passed in I.A.No.96 of 2011 in O.S.No.106 of 2009 by the IV-
Additional District Judge, Tirunelveli, dated 27.03.2013 allotting the
shares in favour of the plaintiffs in terms of Ex.C3-Report and Ex.C4-
Plans filed by the Advocate Commissioner.
4. The case of the plaintiffs is that the property originally
belonged to one Perumal Nadar. Thereafter, it was inherited by Thiruvadi
Nadar. Thiruvadi Nadar had two daughters and three sons viz. the
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A.S(MD)Nos.117 of 2013 and 9 of 2017
plaintiffs, one Alwar Nadar, Thangaraj and Shankar. The said Thiruvadi
Nadar died on 01.02.1984, leaving behind two daughters and three sons.
Alwar Nadar died on 12.03.1999 and defendants 1 to 4 are his legal
representatives. Shankar died on 02.07.1995 and defendants 6 to 9 are
his legal representatives.
5. It is stated that since Thiruvadi Nadar died intestate, each
son and daughter is entitled for 1/5th share in the suit properties and
accordingly, the plaintiffs were claiming for 2/5th share in the suit
properties.
6. The defendants filed a written statement and there was no
dispute with regard to the fact that the suit properties belonged to
Thiruvadi Nadar and that he died intestate. The defence taken is that on
10.04.1986, there was an oral partition among the brothers and sisters
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and during December 1986, the plaintiffs agreed to relinquish their share
in the suit properties, after receiving a sum of Rs.2,00,000/- each.
Accordingly, the amount was also paid to the plaintiffs and they gave up
their share. In the year 1990, there was an oral division of the suit
properties among the brothers and thereafter, there was mutation in the
revenue records with respect to the independent shares of the brothers. In
view of the same, the defendants completely denied the right of the
plaintiffs to get any share in the suit properties and accordingly, sought
for the dismissal of the suit.
7. The Court below based on the pleadings, framed the
following issues:
“1/thjpfs;. gpuhjpy; nfhhpa[s;s 2-5 ghfk;
jhthr; brhj;Jf;fisg; bghWj;J
el;g[ jpl;g[ ghh;j;J jdpj;J ghjpj;J bgw
chpatuh?
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A.S(MD)Nos.117 of 2013 and 9 of 2017
2/jhthr; brhj;J Tl;Lf; FLk;gj;jpdhpd;
bghJ mDgtj;jpy; cs;sjh?
3/thjp 1986 ork;ghpy; U:/2 yl;rk;
bgw;Wf;bfhz;L mth;fSila ghfj;ij
gpujpthjpfSf;F tpl;Lf; bfhLj;Jtpl;lhuh?
4/ 1990 ork;ghpy; gpujpthjpfSila jhthr;
brhj;ij bghWj;J ghfg;gphptpid Vw;gl;L
jdpj;jdpahf gl;lh Vw;gl;ljhff; TwtJ
cz;ikah?
5/thjpf;F fpilf;ff; Toa ghpfhuk;
vd;d?”
8. The Court below framed the following additional issue:
“brYj;jpa[s;s ePjpkd;w Kj;jpiuf;fl;lzk;
rhpahdjh?”
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A.S(MD)Nos.117 of 2013 and 9 of 2017
9. The first plaintiff examined herself as P.W-1 and Ex.A1 to
Ex.A3 were marked. The defendants examined D.W-1 and D.W-2 and
marked Exhibits B1 to B3 and B4 series. The Court below on
considering the facts and circumstances of the case and on appreciation
of evidence available on record, came to a conclusion that the plaintiffs
are entitled for 2/5th share in the suit properties and accordingly, passed
the preliminary decree.
10. After the preliminary decree was passed, the first
plaintiff filed an application under Order XXVI Rule 13 C.P.C in I.A.No.
96 of 2011 praying for appointment of Advocate Commissioner to divide
1/5th share of the first plaintiff by metes and bounds. The Court below
appointed an Advocate Commissioner and after hearing the objections
made on either side, the final decree was passed in terms of report and
plans submitted by the Advocate Commissioner subject to the result of
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A.S(MD)Nos.117 of 2013 and 9 of 2017
the appeal filed against the preliminary decree.
11. Heard Mr.Niranjan S.Kumar, learned counsel appearing
on behalf of the appellants and Mr.J.David Ganesan for M/s.Jeyapal
Associates, learned counsel appearing on behalf of R1 and Mr.V.Kabilan
for Mr.M.S.Jeyakarthick, learned counsel appearing on behalf of R2.
12. The points for consideration that arises in these appeals
are:
a) Whether the plaintiffs had relinquished their share in
the suit properties by receiving a sum of Rs.2,00,000/-
each as claimed by the defendants ?
b) Whether the mutation of the revenue records in the
names of the defendants by itself will amount to ousting
the possession of the plaintiffs and hence, they should
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have paid the court fees under Section 37 (1) of Tamil
Nadu Court Fees and Suit Valuation Act ?
c) Whether the preliminary decree passed by the Court
below granting 2/5th share in the favour of the plaintiffs
requires the interference of this Court? and
d) Does the final decree passed in terms of the Advocate
Commissioner’s report and plan requires the interference
of this Court?
13. There is no dispute with regard to the fact that the suit
properties belonged to Thiruvadi Nadar and he died intestate leaving
behind two daughters and three sons. There is no requirement for the
plaintiffs even to prove this fact since it has been admitted by the
defendants. The defendants took a stand that the plaintiffs have
relinquished their share in the suit properties by receiving a sum of
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A.S(MD)Nos.117 of 2013 and 9 of 2017
Rs.2,00,000/- each. It is therefore clear that the defendants were
asserting the existence of a fact and hence, the onus of proof is upon the
defendants to prove relinquishment under Section 101 of the Indian
Evidence Act.
14. The defendants examined D.W-1 and D.W-2 for this
purpose. D.W-1 is the 5th defendant in the suit and he is none other than
the brother of the plaintiffs. During cross examination, he states that the
discussion took place in the year 1986 and during the discussion, the
paternal uncles and other family members were present. He further states
that he paid a sum of Rs.1,00,000/- and odd and did not receive any
receipt.
15. D.W-2 was a person, who is said to be having a shop
adjoining the suit property. This witness states that at the time of
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A.S(MD)Nos.117 of 2013 and 9 of 2017
discussion, the plaintiffs, their brothers and he alone were there and there
was no one else. This evidence of D.W-2 goes contrary to the evidence of
D.W-1. This witness further states that Alwar Nadar paid a sum of
Rs.2,00,000/- to the first plaintiff and the second plaintiff was not paid
any amount.
16. It is clear from the evidence of D.W-1 and D.W-2 that
even on preponderance of probabilities, the defendants have not
established that the plaintiffs have relinquished their share after receiving
a sum of Rs.2,00,000/- each.
17. There is yet another factor which adds strength to the
above finding. It is admitted by the defendants that when a sale deed was
executed in the year 1996, when a portion of the property was sold in
Survey Nos. 1075 and 1077, the plaintiffs also joined in the execution of
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A.S(MD)Nos.117 of 2013 and 9 of 2017
the sale deed. If really the plaintiffs had given up their right in the suit
properties in the year 1986, there was no requirement for the plaintiffs to
be joint vendors in the sale deed that was executed in the year 1996.
18. The Court below has examined and appreciated the
evidence of D.W-1 and D.W-2 and also regarding the plaintiffs acting as
the joint vendors in the year 1996 and has clearly come to a conclusion
that the plaintiffs did not relinquish their shares in the suit properties.
This Court does not find any ground to interfere with such reasoned
finding of the Trial Court. The first point for consideration is answered
accordingly.
19. The specific case of the defendants is that there was an
oral partition among the brothers in the year 1990 after the plaintiffs
relinquished their share. D.W-1 in his cross-examination has
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A.S(MD)Nos.117 of 2013 and 9 of 2017
categorically admitted that only in the year 2006, the patta was mutated
independently for three shares. There was also no proof to show that the
revenue/tax was paid in the name of the respective sharers from 1990 to
2006. In the light of this evidence available on record, the Court below
came to the correct finding that if really there was a partition in the year
1990, there was no need to wait for the mutation of the revenue records
till the year 2006. This Court must not lose sight of the fact that during
the interregnum in the year 1996, plaintiffs had also executed document
as joint vendors along with their brothers. In view of the same, the
mutation of the revenue records in the year 2006 in the names of the
defendants by itself will not amount to ousting the possession of the
plaintiffs. The Court below while dealing with the additional issue was
perfectly right in coming to the conclusion that the court fees paid by the
plaintiffs under Section 37 (2) of the Tamil Nadu Court Fees and Suit
Valuation Act is in order. The second point for consideration is answered
accordingly.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
20. The learned counsel for the appellant, during the course
of arguments submitted that P.W-1 in her evidence has admitted about
the availability of other properties belonging to Thiruvadi Nadar and the
same not having been added in the schedule of properties. The learned
counsel therefore contended that the suit is vitiated by partial partition.
To substantiate the same, the evidence of P.W-1 during cross-
examination was pointed out.
21. In the first place, the defendants in their written
statement did not specifically raise the issue of partial partition by
providing the particulars of other properties belonging to Thiruvadi
Nadar. A case cannot be developed at the time of evidence and no
amount of evidence can be seen or taken into consideration without
establishing a base by way of pleadings. Therefore, some stray answers
given during the cross-examination by P.W-1 by itself will not vitiate the
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A.S(MD)Nos.117 of 2013 and 9 of 2017
suit on the ground of partial partition. In fact the survey numbers and
extent stated in the cross-examination tallies with Items 10 to 12 in the
schedule of property. P.W-1 was a lady, who was aged about 67 years
when she was examined and it is natural that she must have been
confused when she was questioned by quoting survey numbers and name
of village. Hence, the plea of partial partition raised by the learned
counsel for the appellant deserves to be rejected.
22. The defendants have not proved that the plaintiffs have
relinquished their share in the suit properties. In view of the same, the
plaintiffs are entitled for 2/5th share in the suit properties and the findings
of the Court below in this regard does not require the interference of this
Court. The third point for consideration is answered accordingly.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
23. The final decree that was passed by the Court below on
the application filed by the first plaintiff has been put to challenge. The
main ground that has been raised by the appellants is that there is an
inequitable distribution of share in favour of the plaintiff. Insofar as a
final decree is concerned, the Court appoints an Advocate Commissioner
to partition the property by metes and bounds. The Commissioner
appointed for such purpose acts as the authorised officer of the Court and
as such he is duty bound to distribute the property among the parties
taking into account their respective shares in the light of the direction
given by the Court in the warrant of appointment on the basis of the
preliminary decree. While undertaking the exercise, the Court is expected
to balance the equities. Hence, while testing a final decree, the Appellate
Court must be satisfied that the procedure adumbrated in Rules 13 and
14 of Order XXVI CPC has been adhered to.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
24. Keeping the above in mind, if the report of the Advocate
Commissioner is examined along with the final decree passed by the
Court below, it can be seen that the report marked as Ex.C3 and the plans
marked as Ex.C4 perfectly balance the equities between the parties and
the Court below was right in passing the final decree in terms of Ex.C3
and Ex.C4. The fourth point for consideration is answered accordingly.
25. In the light of the above discussion, this Court does not
find any ground to interfere with the preliminary decree and final decree
passed by the Court below.
26. In the result, both the appeals in A.S(MD)Nos.117 of
2013 and 9 of 2017 stand dismissed and the Judgment and Decree dated
27.03.2013 made in I.A.No.96 of 2011 in O.S.No.106 of 2009 on the file
of the IV-Additional District Judge, Tirunelveli and the Judgment and
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A.S(MD)Nos.117 of 2013 and 9 of 2017
Decree dated 01.12.2010 made in O.S.No.106 of 2009 on the file of the
Additional District Court cum Fast Track Court No.2, Tirunelveli are
hereby confirmed. Considering the relationship between the parties, there
shall be no order as to costs. Consequently, connected miscellaneous
petitions are closed.
[M.S.R, J.] & [N.A.V., J.]
10.11.2022
Index : Yes/No
Internet : Yes/No
PJL
To
1.The Additional District Court cum
Fast Track Court No.2, Tirunelveli.
2.The IV-Additional District Judge, Tirunelveli.
3.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,Madurai.
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A.S(MD)Nos.117 of 2013 and 9 of 2017
M.S.RAMESH, J
AND
N.ANAND VENKATESH, J
PJL
Judgment made in
A.S(MD)Nos.117 of 2013 and 9 of 2017
and
M.P(MD)No.2 of 2013
and C.M.P(MD)No.464 of 2017
10.11.2022
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