Madras High Court
Murugesan vs Murugan on 13 April, 2023
S.A No.651 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.04.2023
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A No.651 of 2013
M.P No. 1 of 2013
Murugesan
... Appellant
Vs.
1.Murugan
2.Murugammal
3.Rani
...Respondents
PRAYER: This Second appeal filed under Section 100 of the Code of Civil
Procedure against the Judgement and decree dated 19.07.2011 passed in
A.S No. 5 of 2009 by the Principal District Judge, Krishnagiri, Confirming
the judgment and decree dated 31.10.2008 passed in O.S No.200 of 2003
passed by the Subordinate Judge, Krishnagiri.
For Appellant: Mr. T.Panchatsaram
For R1 to R3 :Mr.S.Mukunth
1
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S.A No.651 of 2013
for M/s.Sarvabhauman Associates
JUDGMENT
This second appeal has been filed against the Judgement and
decree dated 19.07.2011 in A.S No. 5 of 2009 passed by the Principal
District Judge, Krishnagiri, Confirming the judgment and decree dated
31.10.2008 passed in O.S No.200 of 2003 by the Subordinate Judge,
Krishnagiri.
2.The brief facts of the plaintiff case are as follows:
The suit properties are originally belonged to the joint Hindu
Family consisting of first plaintiff's father Vedi and his two brothers who are
the defendants 1 and 2 and their father Ramar. The 2nd plaintiff is the
daughter and 3rd plaintiff is the wife of said Vedi respectively. The said Vedi
died 23 years back leaving the plaintiffs herein and his mother
Padavattammal as his legal heirs. At the time of death, the said Vedi was
entitled to 1/4 share in the suit properties. Vedi's father Ramar died 12 years
back leaving behind the plaintiffs and the defendants 1 to 3 and his wife
Padavattammal as his legal heirs. As per the Hindu Succession Act, the
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S.A No.651 of 2013
plaintiff's are entitled to 570/1920 shares. After the death of Ramar 1"
defendant had been acting as manager of the joint family consisting of the
plaintiffs and defendants and enjoying the properties and income from the
same amicably till the death of Padavattammal. After his death troubles
started and defendants creating false entries in the revenue records with the
connivance of revenue officials. Hence, the plaintiffs are constrained to
issue notice to the defendants and demanding partition of their shares in the
suit properties. Further, the plaintiffs came to know that properties were
conveyed transferred in the name of the defendants 4 and 5 and they have
been added as defendants.
3. The case of the defendants:
The defendants admitted relationship with regard to
relationship and coparcenary property and after the death of said Vedi, since
his heirs were not amicable with other joint family members, item No.9 of
the suit properties was allotted to them and they have been enjoying the
same separately and the defendants 1 and 2 and their father are allotted
remaining portions of the suit properties. In the year 1986 during the life
time of their father, except item No.9, properties were divided almost
equally and allotted to the defendants 1 and 2, and enjoying the same as a
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S.A No.651 of 2013
separate property. Since already the family properties have been divided by
way of family arrangement long back now the plaintiffs are not entitled for
partition. Further, the 4th defendant stated in his written statement that as
per the oral partition in the family property defendants 1 and 2 and their
father and his brother have divided the properties and enjoying the same
separately. From the 2 defendant, as his separate property by way of
partition, 4th defendant purchased. Hence, the suit has to be dismissed.
5. On the basis of averments in the plaint and the written
statement and on the basis of arguments of both the counsels, the learned
Subordinate Judge, Krishangiri has decreed the suit.
6. Aggrieved by the decree and judgment the defendants
preferred appeal in A.S No.5 of 2009 before the Principal District Court,
Krishnagiri, after considering oral and documentary evidence the lower
appellate Court dismissed the appeal. Challenging the same this appeal has
been filed by the defendants. Appellant herein is defendant and respondent
herein is plaintiff.
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S.A No.651 of 2013
7. This Court admitted the appeal with the following
substantial questions of law:
i. Whether the Courts below are correct in discarding the
exhibits B1 and B7 filed on the side of the defendants to prove his
possession, without assigning legal reasons.
ii. Whether the Courts below have propertly appreciated the
oral and documentary evidences adduced by the defendants.
8. The learned counsel for the appellants submitted that both
the Court below failed to take note of the fact that oral partition in the year
of 1986 proved by the defendants, in spite of that the suit was decreed in
favour of the plaintiffs such is unjust and liable to be set aside. Further the
Trial Court failed to take note of the fact that recitals of Ex.B2, B3 wherein
alleged oral partition was mentioned but in spite of that suit was decreed as
such is totally misconception of law and facts. Hence he prayed to allow this
petition.
9. The learned counsel for the respondents submitted that both
the Court below rightly allowed the suit which needs no interference. Hence
he prayed to dismiss this petition.
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S.A No.651 of 2013
10. The relationship between the parties are admitted and the nature of
the properties also admitted by both the parties. According to the
plaintiffs/respondents, Ramar have three sons and one daughter, after his
demise all his legal heirs entitled to each ¼ share. One of the legal heir is
Vedi and other legal heirs are defendants 1,2 and 3. The said Vedi died long
back leaving behind plaintiffs as legal heirs, the plaintiffs claiming ¼ share
in the suit property against the defendants 1,2 and 3. The suit property was
enjoyed without any division hence the plaintiffs prayed for partition. The
defendants 1, 2 and 3 admitted the relationship with the plaintiffs but they
denied joint enjoyment of the suit properties. As per the contention of the
defendants the suit properties was orally divided in the year 1986 in the oral
partition item No.9 of suit property was allotted to the first plaintiff's father
and other item belongs to the defendants 1, 2 and the revenue records stands
in their name. Thereafter gift deed and sale deed was executed those
documents were marked as Ex.B1 to B8. The defendants 1,2 contended that
as per the oral partition except item No.9 of the suit property other
properties are in their enjoyment and possession. Admittedly, the defendants
1 and 2 not adduced evidence to prove the said oral partition in the year
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S.A No.651 of 2013
1986, as rightly pointed out by the Court below and the revenue records are
still stands
in the name of the Raman, there is no records with regard to partition in
favour of the defendants 1 , 2.
11. Though the defendants 1,2 executed gift deed and
settlement deed among themselves which were marked as Ex.B1 to B4
wherein there is no recital about the alleged oral partition effected between
the family members. The Court below rightly appreciated this facts and also
the documents would not bind the plaintiff's. Thus findings of the Trial
Court needs no interference. It is settled proposition that to plead oral
partition party bound to prove the same but the defendants 1 and 2 contend
that oral partition effected in the year 1986 but it was not proved, if oral
partition is not proved properties deemed to be joint family properties the
court below rightly appreciated those facts which needs not interference.
Furthermore, since the properties are joint in nature therefore the alleged
gift deed and settlement deed would not bind the plaintiffs as rightly
concluded by the Trial Court hence the suit properties deemed to be joint
family properties plaintiff's entitled for partition. The Court below rightly
appreciated this fact and allotted the shares to the plaintiff's needs no
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S.A No.651 of 2013
interference. Accordingly question of law are answered.
12. In view of the above and for the reasons stated above, this
second appeal is dismissed as no merits, suit decreed as prayed for. No
costs. Consequently connected miscellaneous petition is closed.
13.04.2023
pbl
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S.A No.651 of 2013
T.V.THAMILSELVI,J.
Pbl
To
1. The Principal District Judge, Krishnagiri.
2.TheSubordinate Judge, Krishnagiri .
3.The Section Officer,
V.R Section,
SA.No.651 of 2013
M.P No. 1 of 2013
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S.A No.651 of 2013
13.04.2023
https://www.mhc.tn.gov.in/judis
