Madras High Court
K.Sankaran vs K.Kasthuri on 10 October, 2022
A.S.No.167 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE N.MALA
A.S.No.167 of 2016
and C.M.P.No.1920 of 2016
1.K.Sankaran
2.K.Saravanan ...Appellants /
Defendants 1 & 2
-Vs-
1.K.Kasthuri
2.K.Prema
3.K.Sakthivel ...Plaintiffs /
Respondents 1 to 3
4.K.Jayanthi ...3rd Defendant /
4th Respondent
Prayer:- Appeal Suit filed under Section 96 C.P.C., against the judgment and
decree dated 01.10.2015 made in O.S.No.9 of 2015 passed by the learned
Principal District Judge, Krishnagiri.
For Appellants : Mr.V.Nicholas
For Respondents – 1 to 3 : Mr.P.M.Duraisamy
For Respondent – 4 : No appearance
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A.S.No.167 of 2016
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.,]
Defendants 1 and 2 in the suit in O.S.No.9 of 2015 on the file of
the learned Principal District Judge, Krishnagiri are the appellants in the above
appeal.
2. Respondents 1 to 3 herein, as plaintiffs, filed the suit in O.S.No.9
of 2015 for partition in respect of their 3/6th shares in the suit property and for
other consequential reliefs.
3. The case of the plaintiffs in the plaint is as follows:
4. The suit property is a residential house with a site measuring an
extent of 7680 Sq.ft. in Dasharadharama Chettiar Street, Boganapalli,
Krishnagiri Town.
5. It is the case of the plaintiffs that the suit property originally
belonged to Sri.A.V.Krishnamoorthy who is the father of plaintiffs and
defendants as per the Registered Sale Deed dated 22.01.1970.
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Sri.A.V.Krishnamoorthy died leaving behind the plaintiffs and defendants who
are the only legal heirs. Defendants 1 and 2 are receiving the rent from two
shops in the suit property on behalf of the joint family consisting of plaintiffs
and defendants.
6. The remaining portion of the vacant site is also let out by
defendants 1 and 2 for Tamarind Mundy for a sum of Rs.1,000/- per month.
When the plaintiffs demanded partition of their respective shares in the suit
property, defendants 1 and 2 who are in possession and enjoyment of the suit
property did not come forward for any amicable partition. When the 1 st plaintiff
issued a legal notice dated 07.11.2014 calling upon defendants 1 and 2 to divide
the suit property, defendants 1 and 2 issued a reply notice dated 13.11.2014
with false averments. Since joint possession is not conducive, the plaintiffs have
no other option but to file a suit for partition and separate possession.
7. In the plaint, the plaintiffs specifically denied the averments made
in the reply notice issued by the defendants 1 and 2 to the effect that the 1 st
plaintiff took 40 sovereigns of the gold jewels which belonged to the mother of
defendants and that defendants 1 and 2 had taken care of the 2nd plaintiff who is
unmarried and spent certain amounts towards her educational expenses and
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A.S.No.167 of 2016
maintenance.
8. A written statement was filed by the appellants/defendants 1 and 2
and no written statement was filed by the 3rd defendant. In their written
statement, the Defendants 1 and 2 stated that a sum of Rs.1,50,000/- was
borrowed by mortgaging the suit property to purchase another property for the
2nd plaintiff and it was the Defendants who had discharged the loan. It is also
stated that the 1st plaintiff took 40 sovereigns of the gold jewels which should
have been shared among the daughters and that she did not come forward to
share the same among the sisters. It was contended by the appellants that 40
sovereigns of gold jewels as well as a sum of Rs.1,50,000/- with interest should
be placed before effecting partition. It was also contended by appellants that
they contributed for putting up the building in the suit property.
9. Before the Trial Court, the 1st plaintiff examined herself as P.W.1
and marked Exs.A1 to A4. On the appellants' side, the 1 st appellant was
examined as D.W.1 and one S.Amudha was examined as D.W.2. The Trial
Court after framing proper issues found that the suit property belonged to
Sri.A.V.Krishnamoorthy who is the father of plaintiffs and defendants, and that
the plaintiffs are entitled to get equal share along with the defendants. With
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A.S.No.167 of 2016
regard to the plea raised by the defendants in the written statement that the
construction was put up in the suit property with the contribution of
Defendants, the Trial Court gave a specific finding that the construction in the
suit property was put up by the father when the appellants were minors and that
therefore, they cannot claim any right on equity over the suit property. With
regard to the jewels, and the Trial Court specifically found that the appellants
have not proved their case regarding the existence of gold jewels. Even
assuming that the mother had left 40 sovereigns of gold jewels, it is admitted by
the defendants themselves in their pleadings that the said jewels were taken by
the 1st plaintiff on the pretext that the jewels should be shared among the
daughters.
10. The Trial Court then found that the payment of a sum of
Rs.1,50,000/- pleaded in the written statement is true. But, the defendants who
may be entitled to recover the money from the 2nd plaintiff cannot seek recovery
of the same in the suit for partition after the lapse of 12 years. Other issues
framed by the Trial Court were also answered as against the defendants and the
suit was decreed by granting 3/6th shares to the plaintiffs. Aggrieved by the
judgment and decree of the Trial Court, the appellants preferred the above
appeal.
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A.S.No.167 of 2016
11. The learned counsel appearing for the appellants submitted that the
Court below having found that a sum of Rs.1,50,000/- was paid to the 2nd
plaintiff for the purchase of some other property, the Trial Court ought to have
granted decree subject to the payment of Rs.1,50,000/- to the appellants. The
learned counsel further submitted that the Trial Court has not properly
appreciated the defence taken by the appellants regarding availability of 40
sovereigns of the gold jewels given by their mother.
12. From the pleadings of parties before the Trial Court and the
grounds raised by the learned counsel appearing for the appellants, the points to
be considered and determined in the above appeal are as follows:-
(i) whether the appellants proved the existence of
jewels owned by the mother?
(ii) whether the right of plaintiffs to seek partition is
affected by the existence of jewels?
(iii) whether the appellants are entitled to a sum of
Rs.1,50,000/- before granting a decree for partition in
favour of the plaintiffs?
13. In the written statement, the pleadings of the appellants with regard
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A.S.No.167 of 2016
to the payment of a sum of Rs.1,50,000/- and the availability of jewels, are as
follows:-
“5. It is further submitted that to purchase property
for 2nd plaintiff, the suit properties were mortgaged to co-
operative house building society and provided
Rs.1,50,000/- to her in or about the year 2000. The
defendants 1 and 2 discharged the loan. While providing
said plaintiff quarreled with defendants 1 and 2 and their
father.
6. It is further submitted that when their mother
Valliammal died in the year 2007, her 40 sovereigns of
jewels took away by 1st plaintiff stating that the same
could be shared among the daughters. But she did not
come forward to share the same. Therefore in the interest
of justice, the 1st plaintiff must place the jewels of her
mother so as to share, and the 2nd plaintiff must provide
the said sum of Rs.1,50,000/- with interest, and consider
cost of super stricter on the suit properties. Only the
plaintiffs did not cooperate to place the above jewels and
cash, rent amounts to effect partition amicably.”
14. The suit for partition is contested only by the appellants as
defendants 1 and 2 in the suit. The fact that the property belonged to the father
of parties is not in dispute. Though the plaintiffs are entitled to claim equal
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A.S.No.167 of 2016
share over the suit property, the only defence taken by the appellants in the
written statement as extracted above would indicate that the plaintiffs should
agree to share the jewels as well as a sum of Rs.1,50,000/- before seeking
partition. However, the pleading in the written statement does not indicate the
defence in the way as it was projected by the learned counsel appearing for the
appellants before this Court.
15. The case of the appellants in the written statement would indicate
that their mother left 40 sovereigns of the gold jewels and the same was taken
by the 1st plaintiff under the pretext of sharing the same with the other
daughters. Merely because the 1st plaintiff took the jewels for dividing the same
among the three daughters, the appellants cannot defend the suit for partition on
the ground that the other daughters were not given any share of the jewels. In
the present case, the Trial Court has found that the appellants have not proved
the existence of the jewels. Having regard to the specific findings of the Trial
Court, this Court is unable to sustain the arguments of the learned counsel
appearing for the appellants especially when no evidence is let in to prove the
existence of the jewels. Hence point nos.(i) and (ii) are answered against the
appellants.
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A.S.No.167 of 2016
16. With regard to the payment of a sum of Rs.1,50,000/- alleged to
have been given by the appellants to the 2nd plaintiff, this Court is unable to find
any agreement with the 2nd plaintiff or other plaintiffs indicating that such
money is accepted towards their share in the suit property. In the absence of any
evidence to show that a sum of Rs.1,50,000/- was agreed to be paid by the 2 nd
plaintiff or any other plaintiffs as a debt to be shared by all the plaintiffs, this
Court is unable to countenance the argument of the learned counsel appearing
for the appellants especially when the appellants are enjoying the income from
the entire building for several years.
17. The learned counsel appearing for the appellants pointed out before
this Court that a sum of Rs.1,50,000/- was borrowed by mortgaging the suit
property to purchase property in favour of the 2nd plaintiff. Assuming that the 2nd
plaintiff had borrowed some money from appellants and other co-sharers,
unless there is specific pleading of any agreement enforceable against all the
plaintiffs as against their shares in the suit property, this Court is unable to
justify the stand of the appellants. Unless a debt is incurred for the family as a
whole, the appellants cannot seek adjustment while granting preliminary decree.
In other words, the money paid by appellants to the 2nd plaintiff though can be
recovered separately, the same cannot be an issue in a suit for partition unless
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A.S.No.167 of 2016
there is an agreement among the parties. In the said circumstances, the specific
finding of the Trial Court that the money claim is time barred cannot be faulted.
The plaintiffs and defendants are entitled to claim equal share and the liability
of any of the individual co-sharer to another co-owner cannot be treated as
family debt to burden every other co-owner.
18. As a result, this first appeal stands dismissed as devoid of merits.
No costs. Consequently, connected miscellaneous petition is closed.
[SSSRJ] [NMJ]
10.10.2022
cda
Index : Yes/No
Speaking/Non Speaking order
To
1.The Principal District Judge, Krishnagiri.
2.The Section Officer, VR Records,
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A.S.No.167 of 2016
High Court, Chennai.
S.S.SUNDAR, J.,
AND
N.MALA, J.,
cda
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A.S.No.167 of 2016
A.S.No.167 of 2016
10.10.2022
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