Kannan vs Subramaniyan
2022 Latest Caselaw 15429 Mad

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 16.09.2022

                                                         CORAM:

                                   THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

                                                 S.A No.607of 2013

                     Kannan                                                     ... Appellant
                                                           Vs.
                     1.Subramaniyan
                     2.Poova
                     3.Sumathi
                     4.Minor Tamilarasan                                        ...Respondents

PRAYER: This Second appeal filed under Section 100 of the Code of Civil Procedure against the judgement and decree of the Subordinate Judge's Court at Kallakurichi, dated 12.07.2012 in A.S No.2 of 2008 confirming the judgement and decree of the Principal District and Munsif Court at Kallakurichi, dated 31.10.2006 in O.S No.677 of 2001.

                                         For Appellant      : Mr.P.Valliappan

                                         For R2             : Mr.C.Prabakaran
                                         For R1,R3,R4       : No appearance






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

The appellant herein is the plaintiff in O.S No.677 of 2001

before the Principal District Munsif Court, Kallakurichi as against the

defendants/respondents herein for the relief of partition and separate

possession in the suit property situated at Sankarapuram taluk,

Risivandiyam Village in survey No.292/21A, to the extent of 8 2/3 cents

with other rights. The first defendant is the purchaser of the suit property

from the third defendant, other defendants are legal heirs of deceased

Selvam, who is the brother of the plaintiff/appellant herein. The plaintiff

contended that the suit property was purchased by his father in the name of

the plaintiff and his brother Selvam under a registered sale deed dated

09.10.1984. At that time, they were minors thereafter they enjoyed the suit

property jointly and his brother selvam died leaving behind wife/third

defendant and son/fourth defendant as legal heirs, without dividing the suit

property. While being so, plaintiff's brother's wife Sumathi/third defendant

sold her husband's share to the first defendant for and on behalf of his minor

son Tamilarasan/fourth defendant also. Hence the plaintiff filed the suit for

partition and separate possession by claiming that there was no partition

https://www.mhc.tn.gov.in/judis held between the plaintiff and his brother deceased Selvam. Before the

Court below, the learned counsel for the third and fourth defendant

submitted that during the life time of the Selvam, there was oral partition

held between the plaintiff and her husband/selvam, and the half share was

allotted to her in the suit property. Thereafter, which was sold to the first

defendant in order to settle the loan borrowed by her for medical expense

and funeral expenses of her husband/selvam. Following which, the first

defendant enjoyed the said property by running welding unit. The first

defendant contended that he purchased the property from the third

defendant with four boundaries. From the year of 2001, he enjoyed the suit

property absolutely and also denied the joint possession along with the

plaintiff. The mother of the plaintiff/second defendant submitted that as per

the first class legal heir of the deceased Selvam, she is entitled to 1/3 share

in the suit property which was allotted to the share of her deceased son

Selvam. The Trial Court framed 6 issues and also considering the evidence

on either side concluded that the suit property is undivided joint family

property and also observed that already out of 8 2/3 cents, during the life

time of the Selvam, plaintiff and the deceased selavam sold 4 cents to third

party. In the remaining 4 2/3 cents, there was oral partition held between

https://www.mhc.tn.gov.in/judis them and accordingly ½ share i.e., 2 cents was allotted to the plaintiff and

remaining 2 2/3 cents was allotted to the share of Selvam and the same was

sold by the third defendant to first defendant with four boundaries and the

plaintiff is separately enjoyed his share and also allotted 1/3 share to the

mother /second defendant, as she is first class legal heir of the deceased

Selvam. Thereby, the trial Court declined to grant relief of partition in

favour of the plaintiff and dismissed the suit with allotting 1/3 share to the

second defendant.

2. Aggrieved over that, the plaintiff preferred an appeal in

A.S No.2 of 2008 on the file of the Sub Court, Kallakurichi by contending

that without appreciating all the evidences, the trial Court erroneously

dismissed his claim. Hence, he prayed to set aside the same by granting

relief of partition. The Lower appellate Judge independently analysed the

facts and evidence arriving conclusion that already out 8 2/3 cents, 4 cents

was sold during the life time of the plaintiff's brother Selvam by both the

parties and in the remaining 4 2/3 cents out of oral partition ½ share i.e two

cents was allotted to the wife of Selvam/third defendant, and she sold to the

first defendant and the remaining 2 cents was enjoyed by the plaintiff and

he admitted his possession, thereby, there is no joint possession of the

https://www.mhc.tn.gov.in/judis property, since the properties are already partitioned, the findings rendered

by the trial Court is confirmed by dismissing the appeal and with regard to

1/3 share allotted by the Trial Court to the mother of the Selvam/Second

defendant, the lower appellate Judge made observations that second

defendant has to work out her remedy by filing separate suit for partition.

3. Challenging the same the plaintiff preferred this second

appeal and it is admitted with the following questions of law:

(A) when the suit property measuring an extent of 8 2/3 cents

had been purchased under Ex.A2 registered sale deed dated 09.10.1984 in

the name of the appellant and his deceased brother selvam and the appellant

& his deceased brother selvam had sold a total extent of 4 cents under

Ex.A4 and A5 dated 17.07.1996 and 04.06.1990 respectively, and the

remaining extent of 4 2/3 cent is yet to be partitioned, whether the Courts

below are justified in law in dismissing the suit for partition filed by the

appellant?

(b) Whether the respondents 3 and 4 are entitled to execute

Ex.B1 sale deed dated 04.04.2001 in favour of the first respondent, as legal

heirs of the deceased Selvam especially when the 2nd respondent is also

https://www.mhc.tn.gov.in/judis entitled to 1/3rd share over the property of deceased Selvam and she had not

joined in execution of the said sale deed, even assuming without admitting

that the respondents 3 and 4 had right to execute the same?

(c ) Whether the lower appellate Court is correct in law in

holding that the 2nd respondent has to file a separate suit for partition

especially when it is not disputed that she has 1/3rd share in the property of

deceased Selvam?

(d) Whether the Courts below are correct in law in ignoring the

admissions made by DW's 1 to 3, which would categorically establish the

case pleaded by the appellant.

(e ) Whether enjoyment of portions of the property by co-

sharers for convenience, would imply that there has been actual division by

metes and bounds as required under law?

(f) Whether the Court below are correct in law in concluding

that there has been partition on the basis of the recitals contained in the self

serving document under Ex.B1 sale deed dated 04.04.2001?

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

4.The suit property belongs to the plaintiff and his brother

Selvam through Ex.A2, which is an undisputed facts. Though the suit

property is described as 8 2/3 cents, but, both the parties concerned admitted

that during the life time of the Selvam, both the plaintiff along with the

Selvam sold 4 cents to the third party. Hence, the present suit is only for

remaining 4 2/3 cents alone. The plaintiff also enjoyed his half share in that

remaining four cents. As per the plaintiff case, after the death of his

brother/selvam the property was enjoyed and owned by his brother's

wife/third defendant, who sold 2 ¾ cents to the first defendant. Due to

which, mess arouse between the parties. Hence, the plaintiff filed the suit

for partition.

5. Per contra the wife of selvam/ third defendant contended that

already property was orally divided and the share allotted to her husband

was sold by her to the first defendant in order to discharge debt which

arouse due to the medical expenses and funeral expenses of her husband.

Thereafter, the first defendant enjoyed the property and on the other side

plaintiff enjoyed his share separately. Further, the first defendant submitted

that after that purchase, he enjoyed the property with four boundaries by

https://www.mhc.tn.gov.in/judis welding shop. Thereby, the defendants 1 and 3 denied the joint nature of the

property. But the mother of the plaintiff /second defendant claimed her

lawful share in the share allotted to her deceased son Selvam. The plaintiff

was represented through his power agent i.e., his father, who denied the oral

partition but adduced no evidence to prove the joint possession of the

property, however, during the cross examination, he admitted that he

enjoyed the half share as follows:

.............. jhth brhj;jpy; vdf;Fs;s ghfk; vd; mDgtj;jpy; cs;sJ. MlkhLfis fl;o

tUfpnwd. Mjpy; bfhl;lha[k; cs;sJ/ Rkhh; 5. 6 tUl';fshf bfhl;lha; cs;sJ//////

6. Further in the evidence of P.w.1 he admitted as follows

..... Vw;fdnt tpw;gid bra;;ag;gl;l 4 brd;l; jhthtpy; brhy;;yg;gltpy;iy/ jhth g[y vd;dpy;

4 brd;l; Vw;fdnt fpuak; bfrhLf;fg;gl;Ls;ssJ/ jhth vd;dpy; kPjKs;;s 4 ¼ brd;oy;

Rkjp fpuak; bfhLj;jjpy; mtU;fFhpa ghfk; bghUj;J gpujpthjp mDgtk; bra;tjpy; vdf;F

Ml;nrgid ,y;iy/////

7. So the plaintiff has no objection with regard to the share

purchased by the first defendant from the third defendant and also his

enjoyment of the property as per the sale deed dated 04.04.2001. But the

https://www.mhc.tn.gov.in/judis counsel for the plaintiff pointed out that by relying the recitals of Ex.B1/sale

deed, wherein, the Court below erroneously concluded that the share

allotted to the husband was sold by the third defendant without considering

that it is self serving document. On seeing the evidence oral partition is

completed by the third defendant which has not been proved with the

independent witnesses and on the other hand, she relied the recitals of

Ex.B1 sale deed. Wherein, it is mentioned that

vdJ fhyk; brd;w fztUf;Fk; mtuJ jk;gp fz;zDf;Fk; ghrg;go ghfk; fpilj;J

mtw;wpy; vd; fzth; ghfj;ij mth; mDgtk; bra;Jte;J mth; fhyk; brd;wgpd; ,d;W njjp

tiu vd; mDgtj;jpy; cs;sJkhd fPH;fz;l brhj;J tptuj;jpy; cs;s V brl;oa[y;

fhypkidfis ,d;W j';fsf;F brhj;J tpw;fpiuak; bra;J bfhLj;Jtpl;nld;;/////

8. Admittedly, it is self serving documents and proved the oral

partition. But, it requires some independent evidence, however, the

defendants failed to adduce. Hence, based upon the Ex.B1 alone both the

Court below arrived at a conclusion that already property was partitioned

which is unacceptable. Accordingly, the questions of law f is answered.

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

9. However, as discussed above the plaintiff has no objection

with regard to the purchase made by the first defendant with boundaries and

enjoyed the same, but, he wants partition of his remaining ½ share ( two

cents) in the suit property. The learned counsel for the plaintiff submitted

that mere enjoyment of the property would not imply that there has been

actual division with metes and bounds as required under law.

10. As discussed above except Ex.B1, there is no proof for oral

partition but evidence of the parties reveals that after purchase of the

property, the first defendant enjoyed it as per the sale deed and in the

remaining half share the plaintiff is enjoyed by using it as a cattle shed. But

there is no actual division with metes and bounds. Though the Court below

accept that the plaintiff is entitled for remaining two cents. But declining the

relief by believing the oral partition. But the facts reveals that properties

were mere conveyed and enjoyed without any actual division. Hence, the

Court below failed to appreciate this aspects which needs interference

accordingly, question of A is answered.

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

11. Further, the Second defendant herein is mother of the

deceased Selvam and she claim 1/3 share in entire property. Admittedly, she

is residing along with her son but she has not raised any objection at earliest

point of time. Though, she is entitled for 1/3 share in the share belongs to

deceased Selvam. But she has to work out her remedy by filing separate suit

to that effect findings rendered by the lower appellate Court is acceptable

and needs no interference. Accordingly question of law C is answered.

12. Both the Court below accept that only 4 2/3 cents was for

partition in which plaintiff is entitled for ½ share i.e 2 cents remaining 2 2/3

cents belongs to the first defendant by purchase. Accordingly, out of 4 2/3

cents the plaintiff is having ½ share i.e two cents share and the remaining ½

share 2 2/3 cents allotted to the share of the first defendant as per the

description found in the sale deed Ex.B1 on 04.04.2021 under equity. The

remaining half share under the enjoyment of the plaintiff is allotted to his

share. Accordingly, final decree is passed as the plaintiff have no objection

to allot the property to the first defendant under equity to that effect and the

questions of laws are answered . Hence, the appeal is allowed by set aside

Judgements of the both the Court and the property covered under Ex.B1 sale

https://www.mhc.tn.gov.in/judis deed purchased by the first defendant is allotted to the first defendant under

equity and the remaining share is allotted to the plaintiff. Accordingly, final

decree is passed as plaintiff has no objection to allot property purchased by

the first defendant under equity.

16 .09.2022

pbl

https://www.mhc.tn.gov.in/judis T.V.THAMILSELVI,J.

Pbl

To

1. The Subordinate Judge's Court, Kallakurichi.

2. The Principal District and Munsif Court, Kallakurichi.

SA.No.607 of 2013

https://www.mhc.tn.gov.in/judis 16.09.2022

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