Madras High Court
Arumugam vs Murugan on 23 August, 2023
SA(MD)No.476 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 23.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.476 of 2017
and
C.M.P.(MD)No.10048 of 2017
Arumugam ... Appellant/ Respondent / Defendant
Vs.
Murugan ... Respondent / Appellant / Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 07.03.2017 passed in
A.S.No.6 of 2016 on the file of the Principal District Court, Tirunelveli,
reversing the judgment and decree dated 30.11.2015 passed in O.S.No.219
of 2012 on the file of the Principal Sub-Court, Tirunelveli.
For Appellant : Mr.V.Meenakshisundaram
For Respondent : Mr.P.Selvan
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SA(MD)No.476 of 2017
JUDGMENT
The appellant herein is the defendant before the Court below.
The respondent herein is the plaintiff before the trial Court. The plaintiff
and respondent are brothers.
2.For the sake of convenience, the parties will be referred to as
per their rank before the trial Court.
3.The brief averments of the plaint, are as follows:
Originally the suit property belonged to one Andi Kudumban.
Through his wife Lakshmiammal, he had three sons and three daughters.
Whileso on 04.01.1971, the plaintiff and the defendant along with their
mother Lakshmiammal entered into a partition. In which, the second
schedule property of the partition deed dated 04.01.1971 was jointly
allotted to the plaintiff and the defendant. The said property is shown as
first schedule property in the suit. Likewise, in the very same partition
deed, the other brother namely, Eswaran was allotted the first schedule of
the partition deed, which is referred herein as second and third schedule in
the suit. According to the plaint averments, the said Eswaran had sold
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SA(MD)No.476 of 2017
item Nos.2 and 3 of the suit property to Esakki Thevar, who in turn sold the
same to the plaintiff and the defendant on 20.12.1971. Thus according to
the plaintiff, the suit property is the joint property of the plaintiff and the
defendant. Hence, he filed a suit for partition to divide the suit property
into two equal share and for allotment of one such share.
4.The brief facts of the written statement, are as follows:
The suit was resisted by the defendant by contending that the
alleged partition deed dated 04.01.1971 is fabricated and cooked up
document, and that he never signed in any of the partition deed much less
one dated 04.01.1971. According to the defendant, the partition deed dated
04.01.1971 is nothing but a rank one forged document. The defendant also
disputed the purchase of the property from Esakki Thevar vide sale deed
dated 20.12.1971, and would submit that when the very partition deed itself
is a forged one, the question of purchasing the property from other sharer
qua from Eswaran does not arise. He also pleaded that, since the suit
property was originally belonged to Andi Kudumban, after his demise, all
his first class legal heirs are entitled to have share. However in the plaint,
the plaintiff did not include the other sharers namely, the female legal heirs
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SA(MD)No.476 of 2017
and the legal heirs of deceased Eswaran. Therefore, he would submit that
apart from other ground, the suit is hit by the principle of non-joinder of
necessary parties. He also further contended that, the instant suit is also hit
by the principle of partial partition. Hence, he prayed for dismissal of the
suit.
5.Before the trial Court, the plaintiff examined 2 witnesses as
P.W.1 and P.W.2 and marked 6 documents as Ex.A1 to Ex.A6. On behalf of
the defendant, 2 witnesses were examined as D.W.1 and D.W.2 and no
document was marked.
6.After considering the pleadings, material on record and
evidence, the trial Court has dismissed the suit with the finding that the
very partition deed / Ex.A1 has not been proved in a manner known to law
and it was also held that the suit is hit by the principle of non-joinder of
necessary party and also barred by partial partition.
7.Aggrieved with the order of the trial Court, the plaintiff /
appellant has filed an appeal in A.S.No.6 of 2016. The first Appellate Court
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SA(MD)No.476 of 2017
reversed the judgment and decree of the trial Court, and found that when
the defendant had purchased the property from Esakki Thevar, he indirectly
admits Ex.A1/ partition deed, and ultimately decreed the suit.
8.Aggrieved with the said finding of the first Appellate Court, the
defendant filed this Second Appeal.
9.After hearing either side, this Court has admitted the Second
Appeal, on 10.11.2017, on the following substantial questions of law:
“1) Whether the plaintiff / respondent herein fails
to prove the alleged partition deed dated 04.01.1971 (Ex-
A1) in the manner known to law, whether the first Appellate
Court is correct in accepting the recitals in the subsequent
sale deed (Ex-A2 & A3) and granting partition decree to
the plaintiff?
2) When PW1 (plaintiff) admitted that the
defendant had not signed the alleged partition deed dated
04.01.1971 (Ex-A1) and failed to produce the original
deed, whether the first Appellate Court is correct in
accepting the factum of partition projected by the plaintiff?
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SA(MD)No.476 of 2017
3) When admittedly suit schedule properties are
either self acquired properties of Late.Lakshmiammal or
ancestral properties of the family, non-joinder of other
legal heirs in the alleged partition deed dated 04.01.1971
cuts the root of the case put forth by plaintiff and as such
whether the first Appellate Court is correct in decreeing
the suit for partition as prayed for?
4) When PW1 admitted that the house in Door
No.3/137, Easwary Amman Kovil Street, Muneerpalayam
in which he is residing was belonged to
Late.Lakshmiammal and the same was not included in the
present suit, whether the First Appellate Court is correct in
decreeing the suit for partition by overlooking the Doctrine
of partial partition?”
10.The learned counsel for the appellant / defendant would
vehemently submit that the entire case revolves around the proof of
Ex.A1 / partition deed. Wherein the defendant had categorically pleaded in
the reply notice, as well as in the written statement that he had not signed in
Ex.A1 / partition deed. He would further submit that, when the property is
the absolute property of his father / Andi Kudumban, all the legal heirs
needs to be impleaded, and that all the properties of Andi Kudumban needs
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SA(MD)No.476 of 2017
to be included in the suit. However, admittedly the plaintiff did not include
all the legal heirs and all the the properties. It is also contended by the
learned counsel for the appellant that the defendant was minor at that time
of execution of Ex.A1 / partition deed, and that in Ex.A1 / partition deed,
there was some responsibility cast upon the minor and that minor cannot be
party to onerous contract. Therefore, contended that, Ex.A1 / partition deed
cannot be used against the defendant so as to bind him. Therefore, prayed
to allow the second appeal.
11.Per contra, the learned counsel for the respondent / plaintiff
would submit that, at the time of execution of Ex.A1 / partition deed, the
defendant was major, and that even in the registration copy of Ex.A1 /
partition deed, there is a proof that the defendant had signed the document
as well as signed in the registers of the Sub Registrar Office. He would
also submit that, on the date of filing of the suit, the defendant was aged
about 60 years, therefore, naturally on the date of the execution of the
partition deed, he must have been major. It is also the submission of the
learned counsel for the respondent that the very defence putforth by the
appellant herein that the defendant was minor at the time of the execution
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SA(MD)No.476 of 2017
of Ex.A1 / partition deed was never pleaded and has not been raised as
substantial of question of law. Therefore, contended that, the very order
passed by the first Appellate Court is justifiable and prayed for dismissal of
the second appeal.
12.I have given my anxious consideration to the either side
submissions and also perused the materials available on records.
13.All the substantial questions of law revolves around the
enforceability and validity of Ex.A1 / partition deed. According to the
defendant, he was minor then, and never signed in Ex.A1 / partition deed.
If that being the case, then the suit must fail.
14.In order to appreciate the said defence, the learned counsel for
the appellant / defendant draws the attention of this Court in respect of the
admission made by the plaintiff during cross examination. Wherein he has
stated as follows:-
“Ex.A.1y; cs;s ifaOj;ij kw;Wk; jw;NghJ
gpujpthjp ifaOj;ij ty;Ydh; mDg;gyhk; vd;why;
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SA(MD)No.476 of 2017
th.rh.M.11 (sic) jk;gp ikdh; vd;gjhy; ifaOj;J
nra;atpy;iy;.”
Here, though the above admission denotes about Ex.A11, admittedly, there
were only six documents marked in this case. Therefore, it is illogical and
no possibility for referring Ex.A11 and the word Ex.A11 denotes only
Ex.A1. This aspect has been fairly conceded by either side. As such,
according to the above admission of the plaintiff, the defendant was not
party to Ex.A1 / partition deed.
15.However, the learned counsel for the respondent would
strenuously object the said stand, and would contend that the above
admission is nothing but slip short admission, which cannot be given undue
weight-age in isolation to the other part of the evidence. In this regard, he
drew the attention of this Court in respect of certain endorsements made by
the Sub-Registrar in Ex.A1 / partition deed. Wherein, the learned counsel
for the respondent would submit that there is reference by the word “fPwy;”
in Ex.A1, which denotes the putting up of thumb impression of the
individual qua the defendant. While looking at the entry in Ex.A1, as
rightly pointed out by the learned counsel for the respondent, there is
reference “fPwy;; - MWKfk;”. He would also draw the attention of this
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SA(MD)No.476 of 2017
Court about the endorsements made by the Sub-Registrar at the bottom of
Ex.A1 wherein the following endorsement is found:-
“(2) A.Murugan ,lJ ngUtpuy; (Fwp) (3) x fPwy;
MWKfk; Mz;bf; Flk;gd; kf;fs; gaph; fUq;Fsk;
njg;gf;Fsk; njU Nkyg;ghisak; (5) ,lJ ngUtpuy;
(Fwp) (4) x nyl;Rkp mk;khs; ghhp njU \a+h; ,d;dhh;
vd;W ePUg;gpj;jth;”
16.On a perusal of the above endorsement, there is a reference
about the existence of the thumb impression of one Arumugam qua
defendant. At this juncture, the learned counsel for the appellant invited
the attention of this Court in respect of the reply notice which has been
marked herein as Ex.A6. Wherein, he draws the attention of this Court
about the specific denial as to the affixing of signature in the said partition
deed, and he would also submit that, according to the defendant, the very
Ex.A1 / partition deed is fabricated one.
17.Therefore, the learned counsel for the appellant / defendant
contended that, unless the original document of Ex.A1 / partition deed is
produced, the question of reliance on certain endorsements made by the
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SA(MD)No.476 of 2017
Sub-Registrar cannot be given due weight-age. At this juncture, this Court
would like to again recollect the admissions made by the plaintiff. Wherein
he had categorically admitted that the defendant had not signed in Ex.A1 /
partition deed.
18.When the plaintiff himself had admitted that the defendant had
not signed in Ex.A1 / partition deed, the question of finding the defendant
as a party to the partition deed cannot arise. The above finding further
vindicated by the conduct of the plaintiff from avoiding to submit the
original of Ex.A1 / partition deed. Had he submitted the original of Ex.A1,
this issue could have been sorted out in no time. The non submission of the
original of Ex.A1 / partition deed gives serious doubt in the plaintiff's case.
Hence, this Court inclined to draw adverse inference against the plaintiff.
19.Therefore, this Court is of the view that, the plaintiff has
miserably failed to prove as to whether the defendant is party to the very
Ex.A1 / partition deed. Hence, the Ex.A1 / partition deed will not bind the
defendant. If that being the case, as rightly submitted by the learned
counsel for the appellant, the property which alleged to have been divided
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SA(MD)No.476 of 2017
among the male heirs, ignoring female line of descendants of Andi
Kudumban became illegal. If that being the case, as rightly pointed out by
the trial Court, the very suit is hit by non-joinder of necessary parties. As
such all the substantial questions of law are answered in favour of the
appellant.
20.In view of the above detailed discussion, this Second Appeal
is allowed by setting aside the judgment and decree dated 07.03.2017
passed by the first Appellate Court in A.S.No.6 of 2016 on the file of the
Principal District Court, Tirunelveli, and restoring the order of dismissal of
suit dated 30.11.2015 passed in O.S.No.219 of 2012 on the file of the
Principal Sub-Court, Tirunelveli. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
23.08.2023
NCC : Yes/No
Index :Yes/No
ias
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SA(MD)No.476 of 2017
To:-
1.The Principal District Court,
Tirunelveli.
2. The Principal Sub Court,
Tirunelveli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.476 of 2017
C.KUMARAPPAN.,J.
ias
Judgment made in
S.A.(MD)No.476 of 2017
23.08.2023
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