P. Vasudevan vs Suresh
2022 Latest Caselaw 16815 Mad

                                                                                   A.S. No.756 of 2012


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 26.10.2022

                                                         CORAM

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY, J.

                                                    A.S. No.756 of 2012

                     A.Perumal (died)

                     1. P. Vasudevan
                     2. P. Ramesh                            …Appellants/ Defendants

                     (Cause title accepted vide order of this Court dated 14.06.2012 made in
                     M.P.No.1 of 2012 in A.S.SR.No.13880/12)

                                                             Vs.
                     1.Suresh
                     2.Poongodi
                     3.Hema (given up)
                     4.Manivel (given up)                    …Respondents/ Plaintiffs

                     (R3 and R4 given up as per order dated 05.09.2022 in A.S.No.756 of 2012
                     by DBCJ)

                     PRAYER: First Appeal filed under Section 96 of Civil Procedure Code to
                     set aside the judgment and decree dated 29.08.2011 on the file of the
                     Principal District Judge, Dharmapuri passed in O.S.No.50 of 2009.
                                   For Appellants      : Mrs.Sasikala Ramadoss

                                   For Respondent      : Served (R1 and R2)
                                                         Given up (R3 and R4)

                     1/12

https://www.mhc.tn.gov.in/judis
                                                                                           A.S. No.756 of 2012
                                                          JUDGMENT

The second and the third defendants in O.S.No.50 of 2009 on the file

of Principal District Judge, Dharmapuri has laid this Appeal Suit aggrieved

by the judgment and decree in the said Suit dated 29.08.2011 in and by

which the prayer for partition of the suit properties made by the plaintiffs/

respondents 1 and 2 herein was decreed by the Trial Court. In this judgment,

the parties are referred to in the same ranking as before the Trial Court.

2. The case of the plaintiffs is that the first defendant Perumal is the

father and the first plaintiff Suresh, the second plaintiff Poongodi, the second

defendant Vasudevan, the third defendant Ramesh and one deceased

Jayamala (represented by her legal heirs, the defendants 4 and 5 in the Suit)

are the children of Perumal.

3. The Suit schedule properties are the ancestral properties of the said

Perumal. The first defendant namely, the father-Perumal, had become unwell

at the time of filing of this Suit and therefore the plaintiff felt that the other

defendants are acting in a manner so as to cause loss to the plaintiffs and to

deprive them of their lawful share in the suit schedule properties and

therefore they issued a legal notice requesting the defendants including the

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 father, for partition and separate possession of the suit properties on

29.10.2009. For the said legal notice, the second defendant Vasudevan, the

third defendant Ramesh and the minor 4th defendant representing the

deceased Jayamala issued a reply notice dated 06.11.2009 stating as if there

is an oral partition already made, which is factually incorrect. Hence, the

Suit for partition and separate possession of 2/6 th share to the plaintiffs and

for mesne profits and costs.

4. The Suit was resisted by the second defendant by filing a detailed

written statement. It is the case of the second defendant that in the year

1999, the first defendant himself, after all the children got married,

partitioned all the properties belonging to the joint family since it became

impossible to carry on with the joint family. Thereafter each of the 5 children

were allotted specific properties as mentioned in paragraph 5 of the written

statement.

5. As far as the first defendant is concerned, he did not take any share

in any of the suit properties. On the other hand, cash of Rs.1,50,000/- and

the family jewels of 30 sovereigns were left with him as his share. This

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 apart, all the three sons were required to give a sum of Rs.200/- per week

which was being given by all the sons thereafter. As a matter of fact,

subsequent to the oral partition, nobody took care of the mother and it is

only the second defendant Vasudevan, who took care of the mother, namely

Devagi and treated her for Brain tumour by spending more than Rs.2 lakhs.

Even thereafter, she has lost her vision and her limbs and legs have become

disabled and she has become bedridden and it is only the second defendant

who is taking care of her. Therefore, the suit filed as if no partition had taken

place is liable to be dismissed. The first defendant also filed a separate

written statement and the first defendant supported the plaintiff and denied

any oral partition had taken place.

6. On the strength of the said pleadings, the Trial court framed the

following issues:

1. Whether the plaintiffs are entitled to get 2/6th shares in suit

properties as prayed for?

2. Whether the suit is bad for non-joinder of necessary party?

3. Is it true to say that oral partition has already been effected?

4. To what any relief the plaintiff is entitled to?

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012

7. On the said issues, the first plaintiff examined himself as P.W.1 and

Ex.A1 to A3 were marked on the side of the plaintiffs. The first defendant

examined himself as D.W.1. The second defendant examined himself as

D.W.2 and one Viswanathan, father-in-law of the second defendant who is

said to have been present during the oral partition was examined as D.W.3

and one Arumugam, brother of the first defendant who is also said to have

been present during the oral partition is examined as D.W.4. On the side of

the defendants, Ex.B1 to B10 were marked.

8. The Trial Court thereafter proceeded to consider the issue and by a

judgment dated 29.08.2011, found that the first defendant, the father

himself, had denied such an oral partition. The defendants 2 to 5 are

asserting such an oral partition. When the Suit for partition is resisted by the

defendants 2 to 5 by claiming oral partition, it is their bounden duty to prove

such oral partition. The Trial Court thereafter by relying on the admission of

D.W.2 in the cross-examination that after the oral partition in the year 1999,

there was no document in writing including Panchayat Muchalika and that

no steps were taken either by the second defendant or by any other brother

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 or sister to carry out any mutation in the revenue records or effect change of

patta etc., in favour of the concerned allottee of the oral partition and held

that there is absolutely no evidence at all for such oral partition. The Trial

Court found that D.W.4 who is the witness examined in support of the case

of the second defendant that there was an oral partition, actually in the

cross-examination, admitted that it was only the sons who were conveniently

enjoying the properties as per their avocation and actually no partition took

place. On the strength of the said findings, the Trial Court answered the

issues in favour of the plaintiffs and held that the suit schedule property is

liable for partition. Aggrieved by the same, the defendants 2 and 3 are before

this Court.

9. Mrs.Sasikala Ramadoss, learned counsel appearing on behalf of the

appellants taking this Court through the pleadings and the evidence on

record and the grounds of appeal would submit that in this case, the Trial

Court ought to have considered that the properties are distributed equally

among all the children. The said fact is the first and foremost supporting

circumstance that there was an oral partition which had taken place.

Secondly, she would submit that in support of the contention of the second

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 defendant, the second defendant had let in oral evidence in which he had

clearly stated about the oral partition. This apart, D.W.3 and 4 who are the

relatives, who were present during such oral partition have also been

examined and have also deposed in support of the second defendant. As a

matter of fact, the brother of the second defendant and the legal heirs of the

deceased Jayamala also supported this fact. It is only the first defendant who

had joined hands along with the plaintiffs, since the first defendant was

living with the plaintiffs. The learned counsel for the appellants would

submit that the careful perusal of the Suit Schedule Properties as contended

by the defendants in Paragraph 5 of the written statement would show that

Survey Nos.73 and 74 were left out in common, to be used as a common

pathway which also clearly demonstrates that the oral partition has taken

place. The Trial Court even though had answered the issues, did not take

into consideration that Survey Nos. 73 and 74 were to be left in common.

Therefore, she would submit that the Trial Court erred in passing a

preliminary decree. Even though notices were served through substituted

service on the respondents, they have not appeared before this Court.

10. I have considered the submissions made by the learned counsel

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 appearing on behalf of the appellants and perused the material records of the

case.

11. On a consideration of the case of the respective parties, it is clear

that suit properties are joint family properties. There is no dispute that the

first plaintiff, the second plaintiff, the first defendant, the second defendant

and the third defendant and the 4th and 5th defendants jointly are entitled to

1/6th of the share. However, the only contention that is raised on behalf of

the appellants is that already the exercise has been carried out in the year

1999 and accordingly properties are being enjoyed by the respective brothers

and sisters. Therefore, if the suit for partition is resisted on the plea of an

oral partition, it is the bounden duty of defendants 2 to 5 who have raised

such a contention to prove the same.

12. In the instant case, admittedly there is no other document to prove

such an oral partition. There was neither any Panchayat Muchalika or

revenue records pursuant to the oral partition. It is also to be considered that

the oral partition is claimed to be in the year 1999 and the Suit was filed

only in the year 2009. For 10 long years, no steps were taken by even one of

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 the brother or sister to mutate the revenue records or create any

communication / document in writing. This apart, the oral partition was

sought to be proved by oral evidence who are the relatives, who are said to

have been present during the partition. Of the two witnesses, D.W.3 is the

father-in-law of the second defendant himself. The only other independent

witness is D.W.4. Even though D.W.4 supported the case of the defendants

2 to 5 in the chief examination, in the cross-examination, he has gone back

and he has admitted as follows:

"....1999k; tUlj;jpy; ghfg;gpuptpid vJt[k; Vw;gltpy;iy vd;whYk;

ehsJ njjptiuapy; jhth brhj;Jf;fspy; vt;tpj ghfg;gpuptpida[k;

Vw;glhky; mtutu;fs; bra;fpd;w bjhHpypy; cs;s ,lj;ij mDrhpj;J

mDgtpj;J tUfpd;wdh;fs; vd;why; rupjhd;..."

13. Therefore in that view of the matter, I hold that the appellants

herein have not discharged their onus to prove that there was an oral

partition/ family arrangement in the year 1999. That being so, the Trial

Court is right in answering the issues in favour of the plaintiffs and passing a

preliminary decree. The only other contention of the learned counsel for the

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 appellants is that there are two Survey Nos.73 and 74 which have been left

out as common pathway. The Trial Court ought to have left out Survey

Nos.73 and 74 as common pathway, as otherwise the convenient enjoyment

or partition of any of the properties will not be possible. Therefore, the Trial

Court erred in ordering partition and separate possession of the said Survey

Numbers also.

14. In my considered view, merely because the Trial Court has held

those Survey Numbers also to be available for partition, that will not in any

manner foreclose the above said contentions of the learned counsel for the

appellants that those Survey Nos.73 and 74 have to be left as common

pathway for the convenient enjoyment of the parties and such a contention

shall very well be raised during the final decree proceedings and the said

question is expressly left open during the final decree proceedings to be

considered by the Trial Court. The said contention will not in any manner

affect the preliminary decree passed by the Trial Court. Therefore, I am of

the view that this Appeal Suit is without any merits. I accordingly confirm

the finding of the Trial Court in respect of Issues 1 to 4 in favour of the

plaintiffs and against the defendants.

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012

15. In the result:

i) This Appeal Suit in A.S.No.756 of 2012 stands dismissed.

ii) In view of the judgment of the Hon'ble Supreme Court of India in

the case of Kattukandi Edathil Krishnan and other vs. Kattukandi Edathil

Valsan and others reported in 2022 SCC Online SC 737, the matter is

posted for hearing before the Trial Court on 24.11.2022, and the Trial Court

shall continue the proceedings irrespective of whether any application for

final decree is filed by the parties. It is made clear that the parties shall

appear before the Trial Court without any further service of notice and the

Trial Court will proceed with the final decree.

iii) There shall be no order as to costs.

Consequently, connected miscellaneous petitions, if any, are closed.

26.10.2022

Speaking (or) Non Speaking Order Index : Yes/ No mka

https://www.mhc.tn.gov.in/judis A.S. No.756 of 2012 D. BHARATHA CHAKRAVARTHY, J.

mka

To:

The Principal District Judge, Dharmapuri.

A.S. No.756 of 2012

26.10.2022

https://www.mhc.tn.gov.in/judis