Madras High Court
P.P.Mathivanan vs P.P.Jayalakshmi on 14 October, 2022
AS.No..483/2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 14.10.2022
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N.MALA
AS.No.483/2011
P.P.Mathivanan .. Appellant
/ Defendant
Versus
1.P.P.Jayalakshmi
2.P.P.Sasikala
3.P.P.Malarkodi
4.P.P.Deepa .. Respondents
/ Plaintiffs
Prayer:- Appeal Suit filed under Order 41 Rule 1 and 2 read with Section
96 of CPC against the judgment and decree made in OS.No.6/2010 on the
file of the learned Principal District Judge at Dharmapuri dated 11.04.2011
and dismiss the said suit.
For Appellant : Mr.V.Ayyadurai
Senior counsel for
Mr.V.B.Perumal Raj
For Respondents : Mr.P.Mani
https://www.mhc.tn.gov.in/judis 1
AS.No..483/2011
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) The defendant in the suit in OS.No.6/2010 on the file of the
Principal District Court, Dharmapuri, is the appellant in the above
Appeal Suit.
(2) The respondents in the above Appeal as plaintiffs, filed the suit in
OS.No.6/2010 for partition and separate possession of 4/5th shares
in the suit schedule properties and for consequential reliefs.
(3) The appellant and the respondents are brother and sisters.
(4) The case of the plaintiffs in the plaint is that the suit properties are
the joint family properties of their father by name Thiru.Pandu and
that their father also purchased one of the items of the suit schedule
properties in S.NO.488/3 [an extent of 70 cents] in Kuppur Village
out of the income from the joint family properties. It is admitted
that the father of plaintiffs and appellant/defendant died on
25.08.2007 leaving behind the plaintiffs and the defendant who is
the brother of plaintiffs, as his legal heirs. It is admitted that their
mother predeceased their father. It is also alleged in the plaint that
AS.No..483/2011
the defendant who is only entitled to 1/5th share, swindled the
income from the suit properties and evaded to divide the properties
among all the heirs of late Thiru.Pandu.
(5) The suit for partition was defended by the defendant by filing a
written statement on the ground that their father had spent several
lakhs of rupees for the education of plaintiffs and to give them in
marriage. It is also contended by the defendant/appellant that a
sum of Rs.17 lakhs was spent for the 1st respondent/1st plaintiff and
a further sum of Rs.15 lakhs was spent on the 2nd respondent / 2nd
plaintiff. Stating that a sum of Rs.19 lakhs was spent on the 3rd
respondent / 3rd plaintiff and a sum of Rs.4 lakhs was spent for the
4th respondent / 4th plaintiff to complete her Diploma in Tteacher
Training, the defendant/appellant pleaded that the plaintiffs have no
legal or moral grounds to seek partition of the suit properties.
(6) The Trial Court, after framing a specific issue as to whether the
defendant had spent for the education of plaintiffs or their marriage,
found that no evidence is adduced by the defendant to support his
case that he or his father had spent several lakhs for the education
AS.No..483/2011
and marriage of the plaintiffs. Holding that the suit properties are
self-acquired properties of Thiru.Pandu and that the properties are
not partitioned, the Trial Court held that the plaintiffs are entitled to
get 4/5th shares in the suit properties. Even though the Trial Court
observed in one place that the suit properties are proved to be
ancestral properties, irrespective of the character of the properties,
the plaintiffs are entitled to 4/5th shares in respect of all properties
of Thiru.Pandu by virtue of 2005 Amendment to Hindu Succession
Act. Aggrieved by the judgment and decree of the Trial Court, the
defendant has preferred the above the Appeal Suit.
(7) Heard the submissions of the learned Senior counsel appearing for
the appellant/defendant and the learned counsel appearing for the
respondents/plaintiffs.
(8) Mr.V.Ayyadurai, learned Senior counsel appearing for the
appellant, after arguing elaborately on all issues, found himself in a
difficult situation to convince this Court as no document is
produced by the appellant before the Trial Court regarding the
expenses incurred by the defendant/appellant on any of the
AS.No..483/2011
plaintiffs/respondents after the death of their father. Assuming that
their father had spent some money on the plaintiffs for their
education or at the time of giving them in marriage, that will not
disentitle the plaintiffs/respondents from getting their share in the
joint family properties which are available and inherited by the
plaintiffs by virtue of their status as daughters of Thiru.Pandu.
(9) The learned Senior Counsel then pointed out to the evidence of
PW1 wherein she has stated in her cross-examination as follows:-
1 Kjy; 3 thjpfSf;F jpUkzk;
Mfptpl;lJ/ je;ij ,we;j gpd;g[ yhf;fhpy;
,Ue;j eifia vLj;J K:d;W ngUk;
gphpj;Jf;bfhz;nlhk;/ v';fs; gog;g[.
jpUkzk; Mfpatw;wpw;f;fhf v';fs; je;ij
btspapy; fld; th';fpdhh; vd;W brhd;dhy;
mt;thW ,y;iy/ gpujpthjpa[k; mtupd;
kidtp muR gzpapy; ,y;iy//////
(10) Based on the above evidence of PW1, the learned Senior counsel
submitted that PW1 has admitted the existence of jewels which are
available for partition and therefore, the suit is liable to be
dismissed for partial partition.
(11) First of all, the suggestion put to PW1 was denied and the evidence
AS.No..483/2011
is not explicit. Further, absolutely there is neither a pleading in the
written statement about the availability of jewels for partition nor a
plea questioning the maintainability of the suit on the ground of
partial partition. This issue is raised for the first time by the
learned Senior counsel appearing for the appellant before this
Court. It is to be noted that the plea of partial partition is not even
raised in the Memorandum of Grounds.
(12) The learned Senior counsel relied upon a judgment of a learned
Single Judge of this Court in the case of P.Arunachalam Vs.
M.Kaliyammal reported in 2022 [5] CTC 204, and submitted that
when a plea challenging the maintainability of suit seeking partial
partition is raised, it is the duty of the plaintiffs to seek amendment
of pleadings to include the properties which is left out. The said
judgment has no application to the facts of the case on hand as the
plea of partial partition is not raised by the defendant/appellant
anywhere in the written statement nor in the grounds of Appeal
before this Court. The learned senior counsel gets an idea of
raising this issue on the basis of the so-called admission of PW1/1 st
AS.No..483/2011
plaintiff about the partition of jewels by the female heirs
Thiru.Pandu. Had there been a plea of partial partition in the
written statement, the respondents/plaintiffs would have certainly
explained the same in the evidence.
(13) The learned Senior counsel then relied upon the judgment of the
Hon'ble Supreme Court in the case of V.Prabhakara Vs.
Basavanraj K [dead] by LRs and another reported in 2022 [1]
SCC 115. Paragraphs 14 and 21 of the said judgment was relied
upon by the learned Senior counsel which read as follows:-
''14. Section 3 of the Evidence Act defines “a
fact”. Conduct of a party would be construed as a
fact under Section 8. Such a conduct may either be a
previous or subsequent one. It is the product of a
motive or a preparation. When evidence is given on
the conduct of a party and if it is proved to the
satisfaction of the court particularly when it involves
an admission, adequate weightage is required to be
given. Such a conduct would include a silence
emanating from a party who is expected to speak and
express. When a party makes a claim based upon
revocation of the earlier will, as indicated in the
AS.No..483/2011
subsequent one, the said acknowledgment of the
former would form part of a conduct leading to a
relevant fact vis-à-vis a fact in issue.
.......
21. A relief can only be on the basis of the
pleadings alone. Evidence is also to be based on
such pleadings. The only exception would be when
the parties know each other's case very well and such
a pleading is implicit in an issue. Additionally, a
court can take judicial note of a fact when it is so
apparent on the face of the record. A useful reference
can be made to the following passage in Bachhaj
Nahar v. Nilima Mandal [Bachhaj Nahar v. Nilima
Mandal, (2008) 17 SCC 491 : (2009) 5 SCC (Civ)
927] : (SCC pp. 497 & 500, paras 15 & 23)
“15. The relevant principle relating to
circumstances in which the deficiency in, or
absence of, pleadings could be ignored, was
stated by a Constitution Bench of this Court
in Bhagwati
Prasad v. Chandramaul [Bhagwati
Prasad v. Chandramaul, AIR 1966 SC 735] :
(AIR p. 738, para 10)
AS.No..483/2011
‘10. … If a plea is not specifically made
and yet it is covered by an issue by
implication, and the parties knew that
the said plea was involved in the trial,
then the mere fact that the plea was not
expressly taken in the pleadings would
not necessarily disentitle a party from
relying upon it if it is satisfactorily
proved by evidence. The general rule no
doubt is that the relief should be
founded on pleadings made by the
parties. But where the substantial
matters relating to the title of both
parties to the suit are touched, though
indirectly or even obscurely, in the
issues, and evidence has been led about
them, then the argument that a
particular matter was not expressly
taken in the pleadings would be purely
formal and technical and cannot succeed
in every case. What the Court has to
consider in dealing with such an
objection is : did the parties know that
the matter in question was involved in
AS.No..483/2011
the trial, and did they lead evidence
about it? If it appears that the parties
did not know that the matter was in issue
at the trial and one of them has had no
opportunity to lead evidence in respect
of it, that undoubtedly would be a
different matter. To allow one party to
rely upon a matter in respect of which
the other party did not lead evidence
and has had no opportunity to lead
evidence, would introduce
considerations of prejudice, and in
doing justice to one party, the court
cannot do injustice to another.’
23. [Ed. : Para 23 corrected vide
Official Corrigendum No.
F.3/Ed.B.J./89/2009 dated 17-7-2009.]
It is fundamental that in a civil suit,
relief to be granted can be only with
reference to the prayers made in the
pleadings. That apart, in civil suits,
grant of relief is circumscribed by
various factors like court fee, limitation,
parties to the suits, as also grounds
AS.No..483/2011
barring relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of
action or parties, etc. which require
pleading and proof. Therefore, it would
be hazardous to hold that in a civil suit
whatever be the relief that is prayed, the
court can on examination of facts grant
any relief as it thinks fit. In a suit for
recovery of rupees one lakh, the court
cannot grant a decree for rupees ten
lakhs. In a suit for recovery possession
of property “A”, court cannot grant
possession of property “B”. In a suit
praying for permanent injunction, court
cannot grant a relief of declaration or
possession. The jurisdiction to grant
relief in a civil suit necessarily depends
on the pleadings, prayer, court fee paid,
evidence let in, etc.”
(14) This Court is able to find that the judgment cited by the learned
Senior counsel is not in favour accepting the principle on the basis
of which the learned Senior counsel press his plea of partial
AS.No..483/2011
partition in this appeal. Law is settled that no amount of evidence
can be let in or considered in the absence of any specific pleading.
The judgment relied upon by the learned Senior Counsel for the
appellant only reiterates the importance of pleadings before seeking
particular relief before the Civil Court. The illustration that was
quoted by the Hon'ble Supreme Court in Bachhaj Nahar Vs.
Nilima Mandal and Another reported in 2008 [17] SCC 491, is
against the argument advanced by the learned Senior counsel in this
case. Therefore, the argument advanced by the learned Senior
counsel now before this Court that the suit is bad for partial
partition, cannot be countenanced.
(15) The learned counsel for the respondents / plaintiffs has relied upon
the judgment of a learned Single Judge of this Court in the case of
G.Maharajan Asari Vs. G.Natarajan Asari reported in 2011 [2]
CTC 527 [Mad], wherein it is held as follows:
'' 14. With regard to the First question, it is the
contention of the learned Counsel appearing for the
Appellant/Defendant that the Respondent/Plaintiff
has admitted in his evidence that he has not included
AS.No..483/2011
one of the properties of his father measuring to an
extent of 3.5 cents in the suit scheduled properties
for partition. Hence, it is clear from the evidence of
P.W.1 that the Suit was filed only for partial partition
and therefore, the Lower Appellate Court ought to
have dismissed the Appeal filed by the
Respondent/Plaintiff since the Suit for partial
partition is not legally sustainable. But on a perusal
of the materials available on record, this Court finds
that the defence of partial partition had never been
an issue before the Trial Court and in fact, the
Appellant/Defendant has neither pleaded the defence
of partial partition nor adduced evidence that the
Suit is bad for partial partition. On the other hand, it
is the contention of the Appellant/Defendant before
the Trial Court that the Gift Deed executed by the
said Thapasiammal in favour of the
Respondent/Plaintiff is a fraudulent document. The
Trial Court has rendered a finding that the
Respondent/Plaintiff has not proved the Gift Deed in
the manner known to law and dismissed the Suit. But
on Appeal though the said finding was confirmed, the
Lower Appellate Court has rightly come to the
conclusion that the Respondent/Plaintiff is entitled
AS.No..483/2011
for half share in the Suit scheduled properties by way
of inheritance. Therefore, it is evident that the
defence of partial partition had never been raised as
an issue before the Courts below.
15. Though the learned Counsel appearing for
the Appellant/Defendant has relied upon two
decisions in support of his contentions that the
defence of partial partition is only question of law
and as such the same could be urged at the Appellate
stage, I am of the view, unless there is an evidence on
the side of the Appellant/Defendant, the issue with
regard to the partial partition cannot be considered
at the appellate stage since the issue of partial
partition is totally based on the pleading and the
evidence available in the case. Therefore, the
judgment relied upon by the learned Counsel for the
Appellant/Defendant cannot be made applicable to
the facts of this case. Hence, I am not inclined to
accept the submission made by the learned Counsel
for the Appellant/Defendant that the Appeal has to be
allowed since the Suit is bad in law for partial
partition.''
(16) A Division Bench of this Court in OSA.No.22/2011 [G.Geetha and
AS.No..483/2011
Another Vs. B.Santha and others] vide judgment dated
08.08.2016 has held as follows:-
“14.As rightly pointed out on the side of
the appellants/plaintiffs, no specific plea has
been raised with regard to partial partition and
no issue has also been framed with regard to
that aspect. Even though no specific plea has
been raised in the written statement and no
specific issue has been framed, the learned
Single Judge has erroneously dismissed the
entire suit mainly on the ground of partial
partition. Since no such plea has been raised in
the written statement and no issue has been
framed, the finding given by the learned Single
Judge with regard to partial partition cannot be
accepted.”
(17) The plea of partial partition cannot be allowed to be raised in the
Appeal without there being a pleading in the written statement and
it settled by this Court in several judgments. Merely on the basis of
some stray admission of PW1 as to the partition of some jewels
among the female heirs, the suit cannot be dismissed on the ground
AS.No..483/2011
of partial partition without there being any specific issue or
evidence adduced by parties with regard to partial partition before
the Lower Court. A plea of partial partition cannot be permitted at
the appellate stage. No doubt, it is true that in a suit for partition of
the joint family properties, all the movable and immovable
properties should be included so that there will be equitable division
of all the properties which are held to be joint properties of the
members of the family of co-owners. However, there are several
exceptions to the general rule and the Court may even allow partial
partition in certain cases. Where different portions of the family
properties are located in different places coming under the
jurisdiction of different Courts, separate suits for partition can be
maintained. When some of the joint family properties are incapable
of partition or a particular property from its nature cannot be
divided a suit for partition excluding such properties is
maintainable. There may be cases in which some of the properties
may be held jointly with strangers who need not be joined as parties
in the general suit for partition. Even in such cases, a suit is
AS.No..483/2011
maintainable excluding the properties which are to be shared with
strangers to the family. Even in a case where parties, by
inadvertence, omit to include a property in the previous suit for
partition, a second suit for partition can be maintained.
(18) In certain instances, the parties themselves can decide to make
partition of a particular item which is a joint family property, to be
divided at a later point of time. It is also to be noted that the cause
of action for the suit to seek partition survive till all the properties
are divided by metes and bounds. Having regard to the peculiar
nature of a right of co-owner or co-parcener to seek partition, this
Court has even held that a fresh suit for partition is still
maintainable even though the previous suit for partition is
dismissed for default. This Court has held that Order 9 Rule 9 of
CPC is not applicable to a suit for partition. A plea relating to
partial partition cannot be accepted to deny the shares of
plaintiffs/respondents as mere omission does not abrogate the rights
of co-owners to take their share in all the joint family properties.
Even though the general rule that the suit for partition should
AS.No..483/2011
embrace all the joint family properties, the same cannot be applied
to non-suit the plaintiffs/respondents after this length of time
without a plea regarding maintainability of suit for partial partition.
(19) In view of the settled position of law as reiterated by this Court in
various judgment above referred to and the view of this Court
expressed in previous paragraphs, the plea raised for the first time
before this Court regarding partial partition by the learned Senior
counsel for the appellant cannot be entertained and this Court finds
no merit in this Appeal Suit.
(20) Since the appellant/defendant relied upon the evidence of PW1
regarding admission of certain jewels, this Court is inclined to give
liberty to the appellant to file a separate suit for partition without
expressing any opinion on the merits of the so-called admission of
the plaintiffs through PW1 which may also be explained by the
plaintiffs/respondents if such a suit is filed. In other words, this
Court permit the respondents to raise any other plea that may be
available to them to defend such suit if filed.
(21) In the result, the Appeal Suit stands dismissed subject to the
AS.No..483/2011
liberty preserved to the appellant. Since the parties are sisters
and brother, there shall be no order as to cost.
[SSSRJ] [NMJ]
14.10.2022
AP
Internet : Yes
To
1.The Principal District Judge at Dharmapuri.
2.The Section Officer
VR Section, High Court
Chennai.
AS.No..483/2011
S.S.SUNDAR, J.,
AND
N.MALA, J.,
AP
Judgment in
AS.No.483/2011
14.10.2022
https://www.mhc.tn.gov.in/judis 20
