Madras High Court
M.Subramanian vs Karuppayee on 7 June, 2023
S.A.(MD)No.812 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.812 of 2022
and
C.M.P.(MD)No.12442 of 2022
1.M.Subramanian
2.Jothimani
3.Praveena
4.Mathavan
5.Aravind ... Appellants
(cause title amended vide Court order dated 10.08.2017 made in C.M.P.
(MD)No.1966 of 2017 in S.A.(MD)No.SR40649 of 2015.)
/Vs./
1.Karuppayee
2.Jeyalakshmi
3.Periathambi ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to call for the records in the Judgment and Decree dated
27.10.2014 made in A.S.No.4 of 2014 on the file of the District Court,
Sivagangai, confirming the judgment and decree dated 07.10.2013 made
in O.S.No.25 of 2009 on the file of the Sub Court, Devakottai, and set
aside the same.
1/12
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S.A.(MD)No.812 of 2022
For Appellants : Mr.P.Muthusamy
For Respondents : Mr.S.Sivathilakar
For M/s.B.Muruganandam (R1 & R2)
Mr.V.Muthuvelan (R3)
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The plaintiffs in the suit in O.S.No.25 of
2009 on the file of the Sub Court, Devakottai are the appellants herein.
The respondents are the defendants in the said suit. The plaintiffs are the
children of the first respondent / first defendant.
2. The plaintiffs have filed the suit for partition claiming that the
suit schedule property is a joint family property and that they are entitled
for 2/3rd share therein. However, the contentions of the plaintiffs were
disputed by the first respondent / first defendant, as she has contended
that the suit schedule property is her self acquired property. The first
respondent / first defendant has also sold the property to the second
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S.A.(MD)No.812 of 2022
respondent / second defendant under a registered sale deed and the
second respondent / second defendant has subsequently agreed to sell the
suit schedule property to the third respondent / third defendant. Based on
the pleadings of the respective parties, the trial Court, namely the Sub
Court, Devakottai, framed issues. In the forthcoming paragraphs, the
parties are described as per their litigative status in the suit.
3. Before the trial Court, the plaintiffs filed 9 documents, which
were marked as Exs.A1 to A9 and four witnesses were examined on the
side of the plaintiffs, namely Subramanian as P.W.1, Backiyam as P.W.2
and Kasinathan as P.W.3 and Allimuthu as P.W.4. On the side of the
defendants, eight documents were filed, which were marked as Exs.B1 to
B8 and three witnesses were also examined on the side of the defendants,
namely, Karuppayee as D.W.1, Jeyalakshmi as D.W.2 and Valli as D.W3.
Apart from the documents marked through the defendants, two
documents were marked as exhibits as Exs.X1 and X2.
4. The trial Court, namely, the Sub Court, Devakottai, by its
judgment and decree dated 07.10.2013 passed in O.S.No.25 of 2009
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S.A.(MD)No.812 of 2022
dismissed the suit filed by the plaintiffs by rendering the following
findings:-
(a) The first plaintiff, who was examined as P.W.1 has categorically
admitted as follows:
“jhth brhj;J vd; jhahh; bgahpy; mird;bkd;l; gl;lh
nghlg;gl;Ls;sJ vd;why; rhpjhd; vd;W xg;g[f; bfhs;tJ bjhpa
tUfpd;wJ. cijahr;rp vd;w fpuhkj;jpy; 1-k; gpujpthjpapd;
jfg;gdhh; bgahpy; brhj;J cs;sJ vd;why; rhpjhd; vd;Wk;> mJ
1-k; gpujpthjpapd; jfg;gdhuhd nrhiyapd; g{h;tPf brhj;J
cijahr;rp fpuhkj;jpy; cs;sJ vd;Wk; th.rh.1 mtuJ
rhl;rpaj;jpd; nghJ xg;g[f; bfhs;fpwhh;. th.rh.M 1 Kjy; 5
tiuahd Mtzq;fs; midj;Jk; 1-k; gpujpthjpapd; bgahpy;
cs;s urPJfs; vd;why; rhpjhd; vd;Wk; xg;g[f; bfhs;fpwhh;.
mird;bkd;l; thq;fpa fhyj;jpy; Xiy Foir ,Ue;jJ vd;Wk;
jhth brhj;jpYs;s tPL 1976-y; fl;lg;gl;lJ vd;Wk;> me;j tPL
fl;Ltjw;F th.rh.1d; jhahuhd fUg;ghap Tl;Lwt[ tq;fpapy; fld;
thq;fp fl;odhh; vd;why; th.rh.1f;F bjhpahJ vd;W rhl;rpak;
mspj;Js;shnu jtpu mjid kWf;ftpy;iy vd;gJ
bjhpatUfpd;wJ. vy;yh fhyj;jpYk 1-k; gpujpthjpapd; bgahpy;
jhd; gl;lh tHq;fg;gl;lJ vd;why; rhpjhd; vd;Wk; mtuJ
rhl;rpaj;jpd; nghJ xj;Jf; bfhs;fpwhh;.”
As seen from the above admission of the first plaintiff, it is clear that the
suit schedule property is the self acquired property of the first defendant;
(b) P.W.1 has also admitted in his cross examination that the first
defendant has agreed to sell the suit schedule property for a sum of
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S.A.(MD)No.812 of 2022
Rs.2,94,000/- and thereafter has executed a sale deed dated 05.02.2008 in
favour of the second defendant (Ex.A8) and he cannot take advantage of
the fact that the property was devolved upon through her husband;
(c) P.W.2 has also admitted that he knows about the suit schedule
property, which was a thatched shed earlier and thereafter a tiled house
was put up and patta was granted in favour of the first defendant,
Karuppayee and he has also admitted that the suit schedule property
situated at Udayachi Village is an ancestral property of Solai, father of
the first defendant;
(d) P.W.3 has also admitted that he knows about the parties and the
suit schedule property is situated next to the land of Solai in the locality
and he has also admitted that during the settlement, patta was granted in
favour of Solai and Karuppayee;
(e) P.W.4, Zonal Tahsildar in the Taluk Office has also
categorically admitted that in the Adangal Register, Patta No.11 has been
issued in the name of Karuppayee marked as Ex.X1 and A-Register for
S.No.68/8 measuring to an extent of 27 cents is also in the name of
Karuppayee, which is evident from Ex.X2. Thus, the first defendant
(Karuppayee) is in possession and enjoyment of the suit schedule
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S.A.(MD)No.812 of 2022
property of an extent of 27 cents, since the lands were classified as ryot
punja lands;
(f) The first defendant has been examined as D.W.1 and she has
categorically denied that the suit property belonged to her husband,
namely, Munian who died 40 years back. She has deposed that she never
resided with her husband in the house and she herself made improvement
in the house 15 years back and the electricity service connection was also
obtained in her name and the property tax was also being levied in her
name and it is stoutly denied that the first plaintiff paid kist and
electricity bills in the name of the first defendant. She has also admitted
that in 1970, assignment patta was also granted in her name for the said
survey number and subsequently, she availed loan from the Cooperative
Housing Board Society in the year 1976 and constructed a tiled house.
She has also deposed that a separate patta was granted in her name and
the property was never treated as a joint family property, which is evident
from Exs.B7 and B8, loan documents availed from Cooperative Housing
Board Society;
(g) The first defendant has deposed that since she was unable to
maintain herself, she sold the property to the second respondent by sale
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S.A.(MD)No.812 of 2022
deed dated 05.02.2008 (Ex.A8);
(h) D.W.2 has also deposed that for the marriage of the first
defendant's daughter, the suit schedule property was sold by the first
defendant to the second defendant;
(i) D.W.3, sister of the first defendant, has also admitted in her
deposition that the suit schedule property is situated next to the land of
Solai in the locality and his father died, when they were children and she
supported the case of the first defendant.
5. Based on the aforesaid findings, the Sub Court, Devakottai,
(trial Court) dismissed the suit on the ground that on the date of the suit,
the property was not vested with the first defendant as she had already
sold the property and therefore, there was no cause of action for the
plaintiffs to file a suit for partition and further, the trial Court has held
that the suit property was not a joint family property, but was the absolute
property of the first defendant, prior to the sale in favour of the second
defendant. Aggrieved by the judgment and decree of the trial Court
dated 07.10.2013 in O.S.No.25 of 2009, the plaintiffs in the suit filed the
first appeal before the District Court, Sivagangai in A.S.No.4 of 2014.
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S.A.(MD)No.812 of 2022
The lower appellate Court, namely, the District Court, Sivagangai, also
confirmed the findings of the trial Court by dismissing the first appeal.
Aggrieved by the concurrent findings of the Courts below, this second
appeal has been filed by the plaintiffs in the suit.
6. Admittedly, as seen from the documents marked as exhibits
both on the side of the plaintiffs as well as on the side of the defendants,
it is clear that no iota of evidence has been produced by the plaintiffs to
show that the suit schedule property is a joint family property and it is
not a self acquired property of the first defendant, the mother of the
plaintiffs. The Zonal Tahsildar in the Taluk Office, who was examined as
one of the witnesses on the side of the plaintiffs as P.W.4 has also
confirmed that the patta for the suit schedule property was exclusively
standing in the name of the first defendant (Karuppayee) and the
documents to that effect were marked as Court exhibits namely, Ex.X1
and X2. P.W.1, the first plaintiff in the suit has also categorically
admitted during his cross examination, which has been extracted supra
that the suit schedule property is the self acquired property of the first
defendant (Karuppayee).
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S.A.(MD)No.812 of 2022
7. Admittedly, the suit schedule property was also sold by the first
defendant to the second defendant under a sale deed dated 05.02.2008
(Ex.A8). Subsequent to the sale deed dated 05.02.2008 (Ex.A8), the
second defendant has also entered into the agreement for sale with the
third defendant and the sale agreement was also marked as Ex.A9. The
first defendant, prior to the sale in favour of the second defendant by the
sale deed dated 05.02.2008 had also mortgaged the suit schedule
property in favour of the Cooperative Housing Board Society under
Exs.B7 and B8 and had availed loan in her individual capacity and the
property was never treated as joint family property, as alleged by the
plaintiffs. All the revenue records, which have been marked as exhibits
both on the side of the plaintiffs as well as on the side of the defendants,
prior to the sale by the first defendant in favour of the second defendant
on 05.02.2008, stand in the name of the first defendant (Karuppayee).
8. D.W.1, Karuppayee has also deposed that the suit schedule
property is her self acquired property and that she had sold the property
to the second defendant under a sale deed dated 05.02.2008. Her sister,
D.W.3 has also deposed that the suit schedule property was the self
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S.A.(MD)No.812 of 2022
acquired property of the first defendant, who had sold the property to the
second defendant under a sale deed dated 05.02.2008 (Ex.A8). The
second defendant, who was examined as D.W.2, has deposed that since
the first defendant was unable to maintain herself and was in need of
money, she has sold the suit schedule property to the second defendant
by a sale deed dated 05.02.2008.
9. The initial burden of proving the suit claim is on the plaintiffs
as per Section 101 of the Indian Evidence Act, 1872. They claim that the
suit schedule property is a joint family property. Therefore, it is for them
to prove through oral and documentary evidence that the suit schedule
property was purchased out of the joint family income.
10. However, as seen from the oral and documentary evidence
available on record, they have miserably failed to prove their claim that
the suit schedule property is a joint family property and the Courts below
have rightly held that the suit schedule property was self acquired
property of the first defendant and therefore, the plaintiffs are not entitled
for the relief of partition as claimed in the plaint.
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S.A.(MD)No.812 of 2022
11. Only based on the oral and documentary evidence available on
record, both the Courts below have concurrently held that the plaintiffs
are not entitled for partition as sought for in the plaint. The substantial
questions of law raised by the appellants in the grounds of appeal have
already been considered by the Courts below against the appellants, only
in accordance with law based on the oral and documentary evidence
available on record. There are no debatable issues of law or fact
involved for further consideration by this Court under Section 100 of
CPC and hence, there is no merit in this second appeal. Accordingly, this
Second Appeal is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
07.06.2023
Index : Yes / No
NCC : Yes / No
Sm
TO:
1.The District Court, Sivagangai.
2.The Sub Court, Devakottai.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.812 of 2022
ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.812 of 2022
Dated:
07.06.2023
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