Madras High Court
Pavuliammal vs Deiva Malar @ Sarasu on 27 October, 2022
AS(MD)No.59/2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
AS (MD)No.59 of 2013
1.Pavuliammal
2.Vasantha
3.Rasammal
4.Mallika .. Appellants/
Plaintiffs
Vs.
1.Deiva Malar @ Sarasu
2.Ilavarasi
3.Angammal : Respondents/
defendants
Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure
against the judgment and decree dated 08.11.2011 made in O.S.No.4/2009
on the file of the Additional District Judge, Fast Track Court, Dindigul.
For appellants : Mr.G.Gomathi Shankar
For respondents : Mr.V.Janakiramulu
Page 1 of 10
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AS(MD)No.59/2013
JUDGMENT
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
The plaintiffs are the appellants in this appeal and they have
challenged the judgment and decree passed by the Additional District Judge,
Fast Track Court, Dindigul, made in O.S.No.4 of 2009 dated 08.11.2011,
dismissing the suit filed seeking for the relief of partition and for allotment
of 4/5th share in the suit properties.
2.The case of the plaintiffs is that the suit property was purchased by
Pitchaimuthu Goundar, who is the father of plaintiffs 1 to 3, grandfather of
the 4th plaintiff and the father-in-law and grandfather of the defendants, by
virtue of an unregistered sale deed dated 12.12.1966.
3.The further case of the plaintiffs is that the said Pitchaimuthu
Goundar executed a gift settlement deed dated 15.12.2008 in favour of the
plaintiffs and defendants 2 and 3 in and by which the suit property was
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AS(MD)No.59/2013
gifted in their favour. The suit property measures an extent of 1 acre and 11
cents and it consists of 2 houses and agricultural land. According to the
plaintiffs, the house tax and electricity service connection stood in the name
of Pitchaimuthu Goundar.
4.The plaintiffs sought for the division of the suit property amicably
and they claimed 4/5th share. Since the first plaintiff was not coming
forward for an amicable division of property, the suit came to be filed
seeking for the relief of partition and allotment of 4/5th share in the suit
property.
5. The defendants filed a written statement and took a stand that the
suit property belongs absolutely to the husband of the first defendant,
namely, Periyasamy and father of the second and third defendants. To
substantiate the same, they relied upon the assignment patta that was
granted in favour of Periyasamy. Ex.B23 was filed to substantiate that the
Special Tahsildar had passed an order and given assignment patta in favour
of Periyasamy. They also marked Ex.B1, which is the order passed granting
the assignment patta in favour of Periyasamy. Ex.B2 patta No.3427 was
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AS(MD)No.59/2013
also filed by them to show that the suit property stood in the name of
Periyasamy.
6. In view of the above, the defendants took a specific stand that
Pitchaimuthu Goundar did not have any right or title over the suit property
and consequently the plaintiffs are not entitled for any share in the suit
property.
7.The Court below on considering the pleadings framed the following
issues:
“(1) thjpfSf;F tof;Fr; nrhj;jpy; ghfk; cs;sjh?
(2) thjpfSf;F tof;Fr; nrhj;jpy; ghfk; gphpj;Jj;
ju Ntz;Lkh?”
8.The plaintiffs examined P.W.1 to P.W.4 and marked Ex.A1 to A11.
The defendants examined D.W.1, D.W.2 and marked Exs.B1 to B.23.
9.The Court below, after appreciation of oral and documentary
evidence, came to a conclusion that Pitchaimuthu Goundar had no right
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AS(MD)No.59/2013
over the suit property and that the suit property exclusively belongs to
Periyasamy by virtue of the assignment patta granted in his favour and
accordingly, the suit was dismissed. Aggrieved by the same, the plaintiffs
have filed this appeal.
10. Heard the learned counsel for the appellants and the learned
counsel appearing on behalf of the respondents.
11. On carefully considering the submissions made on either side and
the materials available on record, the following points for consideration
arises in this case:
“(a) Whether Pitchaimuthu Goundar was the owner of
the suit property?
(b)Whether the right and title over the suit property
vests upon Periyasamy by virtue of the assignment patta
granted in his favour?
(c)Whether the plaintiffs are entitled for any share in
the suit property and
(d) Whether the judgment and decree passed by the
Court below requires the interference of this Court.”
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AS(MD)No.59/2013
12. The plaintiffs have relied upon Ex.A1, which is an unregistered
sale deed said to have been executed in favour of Pitchaimuthu Goundar.
The very admissibility of the document is under question since the sale deed
is a document, which is compulsorily registrable. Even assuming that this
document can be looked into for collateral purposes, the relevant portion in
the said document is extracted hereunder for proper appreciation:
“ehd; tpy;gl;b fpuhkk;> ml;Ltk; gl;bapy;
fTe;jbg;gs;sj;jpy; Rkhh; 1-12 Vf;fh; epyj;ij ntl;bg;
gad;gLj;jp Rkhh; 35 tUlfhykhf mDgtj;Jk;> Nkw;gb
epyj;jpy; $iu tPL fl;bAk;> Nkw;gb epyj;jpy; gpsk;];>
Nghpfha; fdpkuq;fs; itj;J gapy; nra;J tUk; epyj;ij
jhq;fs; jq;fs; RthjPdj;jpy; Ntz;Lnkd;W Nfl;Lf;
nfhz;lgbahYk; jhq;fs; vdf;F neUq;fpa nrhe;jf;fhuh;
vd;gjpdhYk;> ehd; mbapy; fz;l epyj;jpw;F ntl;b
gad;gLj;jpa $yp tifawh nryTfSf;F $iu tPL
fl;b itj;Jk;> fdp kuq;fs; itj;J tpUj;jp nra;j
tiff;Fkhf ehsJ Njjpapy; jq;fsplj;jpy; &.2500/-
ngw;Wf; nfhz;L epyj;ijAk; tPl;ilAk; jq;fsJ
RthjPdj;jpy; tpl;Ltpl;lgbahy; jhq;fNs kf#y; nra;Jk;>
tPl;by; FbapUe;J mDgtpj;Jf; nfhs;s Ntz;baJ”
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AS(MD)No.59/2013
13. On carefully going through the unregistered sale deed, it is seen
that one Karuntheva Goundar was enjoying the property and he has
permitted Pitchaimuthu Goundar to take possession of the property, after
receiving a sum of Rs.2,500/-. There is absolutely no flow of title in favour
of Pitchaimuthu Goundar and this document cannot, by any stretch, be
called as title document of Pitchaimuthu Goundar. The house tax receipts,
electricity service connection and the patta issued in the name of
Pitchaimuthu Goundar do not in any way enhance the title of Pitchaimuthu
Goundar in the suit property. In view of the same, Ex.A1 document does not
create any title in the suit property in favour of Pitchaimuthu Goundar.
Since Pitchaimuthu Goundar cannot be considered to be the owner of the
property, the settlement deed executed by him under Ex.A2 is of no
consequence and it will not create any right or title in favour of the
plaintiffs. The first point for consideration is answered accordingly.
14. It is clear from Ex.B1, Ex.B2 and Ex.B23 that the Special
Tahsildar has given an assignment patta in favour of Periyasamy for the suit
property and two other properties. The assignment patta should be
considered to be the title document insofar as Periyasamy is concerned,
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AS(MD)No.59/2013
since the property belongs to the Government. In view of the same,
Periyasamy will have exclusive title over the suit property and the same
cannot be denied just because his father Pitchaimuthu Goundar was
enjoying the property and the property tax and the electricity service
connection was standing in his name. On the demise of Periyasamy, his
wife and children will be entitled to claim for the right and title over the suit
property. The second point for consideration is answered accordingly.
15. This Court has held that there is no title for Pitchaimuthu Goundar
in the suit property. In view of the same, the plaintiffs, who are his legal
heirs, cannot claim any share in the suit property by virtue of Ex.A2
settlement deed. The third point for consideration is answered accordingly.
16. The Court below has carefully considered and appreciated the oral
and documentary evidence and has come to the correct conclusion that
Pitchaimuthu Goundar does not have any title over the suit property and
consequently, the plaintiffs cannot claim for share through Ex.A2 settlement
deed. There is no perversity or infirmity in the findings rendered by the
Court below and it does not require the interference of this Court.
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AS(MD)No.59/2013
17. In view of the above discussion, this Court does not find any
ground to interfere with the judgment and decree passed by the Court below
in O.S.No.4 of 2009 dated 08.11.2011 and accordingly, this appeal suit
stands dismissed. However, there shall be no order as to costs.
(J.N.B.,J.) (N.A.V.,J.)
27.10.2022
Index : Yes/No
Internet : Yes
RR
To
1.The Additional District Judge,
Fast Track Court,
Dindigul.
2.The VR Section
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
AS(MD)No.59/2013
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
RR
AS (MD)No.59 /2013
27.10.2022
https://www.mhc.tn.gov.in/judis
