Madras High Court
Rajeswari vs Marimuthu on 20 June, 2023
S.A.(MD).No.677 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.677 of 2021
Rajeswari ... Appellant/Appellant/Plaintiff
Vs.
1.Marimuthu
2.Saroja ...Respondents/Respondents/Defendants
Prayer: Second Appeal is filed under Section 100 of CPC to allow the appeal
setting aside the judgment and decree of Principal Sub Court, Thenkasi in
A.S.No.87 of 2018 dated 16.10.2020 confirming the judgment and decree of
Additional District Munsif Court, Thenkasi in O.S.No.209 of 2013 dated
17.07.2018 .
For Appellant : Mr.Sankararamasubramanian
for Mr.P.T.Thiraviam
For Respondents : Mr.I.Robert Chandrakumar
1/12
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the Courts below. The plaintiff in the suit O.S.No.209 of 2013 on the file of the
Additional District Munsif Court, Tenkasi is the appellant herein. The
respondents are the defendants in the said suit. In the forthcoming paragraphs,
the parties are described as per their litigative status in the suit.
2. The plaintiff claims to have purchased the suit schedule property under
two sale deeds, one executed by Velliammal and her daughter Dhuraichy and
the other executed by Velu and his son Santhanakumar dated 08.02.2006 and
13.02.2006 respectively. According to the plaintiff, the defendants are the
co-owners of the suit schedule properties. It is also the case of the plaintiff that
her vendors are having half share in the suit schedule property. In such
circumstances, the plaintiff has filed a suit for partition claiming half share in
the suit schedule property. The plaintiff's vendors are the children of the first
wife of the deceased Mookan. The first defendant and Pechimuthu are the
children of the second wife of the deceased Mookan. The second defendant is
the wife of the first defendant.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
3. However, as seen from the written statement filed by the defendants,
they have categorically pleaded that the plaintiff does not have any share in the
suit schedule properties and the suit for partition is not maintainable without
seeking for a declaratory relief that the plaintiff is the owner of the suit
schedule property. They contend that the plaintiff is not a legal heir of the
deceased Mookan and hence, the suit for partition is not maintainable.
4. Based on the pleadings of the respective parties, the Trial Court,
namely, the Additional District Munsif Court, Tenkasi framed the following
issues:
a) Whether the suit is bad for misjoinder of parties?
b) Whether the plaintiff is entitled for half share in the suit schedule
properties?
c) To what other reliefs?
5. Before the Trial Court, the plaintiff filed four documents which were
marked as exhibits A1 to A4, the details are as follows:
Exhibits Date Details
Ex.A1 24.04.1946 Certified copy of the sale deed executed by
Subbammal in favour of Mookan and
Santhanathammal
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
Ex.A2 08.02.2006 Sale deed executed by Velliammal and
Dhuraichy in favour of the plaintiff
Ex.A3 13.02.2006 Sale deed executed by Velu and
Santhanakumar in favour of the plaintiff
Ex.A4 - Family chart
The plaintiff herself was examined as a witness (P.W.1). On the side of the
defendants, 12 documents were filed which were marked as exhibits B1 to B12,
the details are as follows:
Exhibits Date Details
Ex.B1 24.04.1946 Sale deed executed by Subbammal in favour
of Mookan and Santhanathammal
Ex.B2 03.02.1992 Sale deed executed by Velu in favour of the
plaintiff's husband Samuthiram
Ex.B3 - Property tax receipts in the name of the first
defendant
Ex.B4 - EB receipts in the name of the first defendant
Ex.B5 - Drinking water receipts in the name of the
first defendant
Ex.B6 28.04.2003 Sale executed by Gandhimathi in favour of
the first defendant Marimuthu
Ex.B7 15.07.2003 Mortgage deed executed by the first
defendant in favour of Veerakeralampudur
Housing Society Limited
Ex.B8 20.09.2013 Discharge deed by Veerakeralampudur
Housing Society Limited to the first
defendant
Ex.B9 21.02.2005 Decree passed in O.S.No.215 of 2003 by the
Additional District Munsif Court, Tenkasi
Ex.B10 21.02.2005 Judgment passed in O.S.No.215 of 2003 by
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
the Additional District Munsif Court, Tenkasi
Ex.B11 28.02.2018 Adangal extract in favour of the first
defendant
Ex.B12 08.09.2017 Survey plan of Survey No.1752, Surandai
Village, Tenkasi Division.
The first defendant was examined as a witness (D.W.1) on the side of the
defendants.
6. The plaintiff is not a legal heir of the deceased Mookan. The plaintiff's
claim is based on an oral partition entered into between the plaintiff's vendors.
However, the claim for oral partition made by the plaintiff to prove her title has
not been supported by any document of title, patta, chitta, tax receipts or any
other witness to speak as regards the oral partition. The vendors of the plaintiff
was also not examined as a witness to prove the oral partition entered into
between the legal heirs of the deceased Mookan. Ex.A2 is the sale deed dated
08.02.2006 which is executed in favour of the plaintiff by Velliammal and her
daughter Dhuraichy. Ex.A3 is the sale deed dated 13.02.2006 executed in
favour of the plaintiff by Velu and Santhanakumar. Based on the two sale
deeds, Ex.A2 and Ex.A3, the plaintiff claims half share in the suit schedule
properties. Ex.B2 is the sale deed dated 03.02.1992 executed in favour of the
plaintiff's husband by Velu. Through Ex.B2, the plaintiff's husband had
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
purchased the property lying south of the suit schedule property. In Ex.B2, the
oral partition shown in Ex.A2 and Ex.A3 was not mentioned. In Ex.B2, in the
boundaries mentioned in the schedule, it is disclosed that in the north, the
property belongs to Marimuthu (first defendant). Therefore, it is clear that the
property purchased by the plaintiff's husband lies in the southern part of the suit
schedule property. Even though in the sale deeds dated 08.02.2006 and
13.02.2006 (Ex.A2 and Ex.A3), the recitals contained therein mention about an
oral partition, the sale deed dated 03.02.1992 (Ex.B2) executed in favour of the
plaintiff's husband by the very same Velu, who is the vendor of the plaintiff, is
silent about the oral partition.
7. The northern portion of the property shown in Ex.B1 was allotted to
the first defendant and his brother Pechimuthu. The property shown in Ex.B2
was allotted to Velu and others. In Ex.B2 dated 03.02.1992, the name of the
first defendant is disclosed in the boundaries of the schedule property.
Therefore, Ex.B2 sale deed has been executed in favour of the plaintiff's
husband by Velu with the knowledge that the suit schedule property is the
property of the first defendant. The plaintiff's husband has admitted as seen
from Ex.B2 sale deed dated 03.02.1992 in his favour that the title of the suit
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
schedule property is with the first defendant. However, the plaintiff has taken a
different stand as seen from the pleadings in her plaint. The plaintiff's husband,
who had purchased the property by sale deed dated 03.02.1992 (Ex.B2) in
which he has acknowledged that the suit schedule property belongs to the first
defendant, has also not been examined as a witness by the plaintiff to prove her
case.
8. It is also an admitted fact that the suit schedule property was sold to
one Poolpandi on 10.06.1999 by the first defendant and Poolpandi subsequently
sold the same to one Mr.Thangaraj on 20.10.1999 and thereafter, Gandhimathi,
wife of Thangaraj has sold the same to the first defendant once again by sale
deed dated 28.04.2003 (Ex.B6). Ex.B7 is the mortgage deed dated 15.07.2003
executed by the first defendant in favour of Veerakeralampudur Housing
Society Limited and the said mortgage was also discharged by the first
defendant through the discharge deed dated 20.09.2013 (Ex.B8). Ex.B3 is the
property tax receipt, Ex.B4 is the electricity bill receipt and Ex.B5 is the
drinking water receipt over the suit schedule property which all stands in the
name of the first defendant. Ex.B11 is the adangal extract which also stands in
the name of the first defendant in respect of the suit schedule property.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
9. In the suit O.S.No.215 of 2003 filed by the plaintiff's husband
Samuthiram, he has admitted as seen from his pleadings that the first defendant
is the owner of the suit schedule property as the boundaries in the suit schedule
in O.S.No.215 of 2003 makes it clear that the first defendant is the owner of the
suit schedule property, which is the subject matter of O.S.No.209 of 2013.
Ex.A2 and Ex.A3, the sale deeds dated 08.02.2006 and 13.02.2006 respectively
standing in the name of the plaintiff are subsequent to Ex.B9 and Ex.B10 dated
21.02.2005, which is the judgment and decree passed in O.S.No.215 of 2003 in
the suit filed by the plaintiff's husband, who has admitted that the suit schedule
property in O.S.No.209 of 2013 is owned by the first defendant. Even though
the suit O.S.No.215 of 2003 was filed with regard to a pathway dispute, when
the plaintiff has not produced any other documentary evidence to prove that
there was oral partition by the legal heirs of the deceased Mookan by which the
plaintiff's vendors were allotted the suit schedule property, adverse inference
can be drawn against the plaintiff from the dismissal of the suit O.S.No.215 of
2003 in which the plaintiff's husband in his suit schedule has disclosed that the
present property which is in dispute is owned by the first defendant in the suit
O.S.No.209 of 2013.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
10. The documentary evidence produced by the defendants in the suit
makes it clear that the defendants are in possession of the suit schedule
property. The defendants have produced adangal, chitta, house tax receipts,
water tax and electricity bill receipts which have been marked as exhibits (B
series) to prove that they are in possession of the suit schedule properties.
Further, the plaintiff is said to have purchased the suit schedule properties
under two sale deeds dated 08.02.2006 and 13.02.2006 (Ex.A2 and Ex.A3)
respectively. Even though she had purchased the properties in the year 2006
itself, she has chosen to file the suit seeking for partition only in the year 2013.
Further, she is not a legal representative of the deceased Mookan from whom
she derives title. Being not a legal representative, a suit for partition is not
maintainable as rightly held by the Courts below. Even though the defendants
have not taken a specific stand in their written statement that the suit for
partition is not maintainable, this Court does not find any infirmity in the
findings of the Courts below that the plaintiff being not a legal heir of the
deceased Mookan, the suit for partition is not maintainable as it is only a legal
issue and there is no necessity for a specific pleading by the defendants in their
written statement to that effect.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
11. The Trial Court, after giving due consideration to the fact that the
plaintiff is not a legal heir of the deceased Mookan from whom she derives title
and also taking note of the fact that the suit has been filed belatedly after a
lapse of seven years and the defendants have also transferred the property and
had also mortgaged the same between the date of purchase of the suit schedule
property by the plaintiff till the date of filing of the suit and the documentary
evidence placed on record will prove that the defendants are in possession of
the suit schedule property, has rightly held that the suit filed by the plaintiff
seeking for partition is not maintainable by its judgment and decree dated
17.07.2018 in O.S.No.209 of 2013.
12. The Lower Appellate Court, namely, the Principal Sub Court, Tenkasi
by its judgment and decree dated 16.10.2020 in A.S.No.87 of 2018 has also
rightly confirmed the findings of the Trial Court by dismissing the first appeal
filed by the plaintiff. The substantial questions of law raised by the
appellant/plaintiff in the grounds of the Second Appeal are all issues which
have been rightly considered by the Courts below only based on oral and
documentary evidence available on record and only in accordance with law.
There are no debatable issues of fact or law involved for further consideration
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
by this Court in this Second Appeal under Section 100 of CPC. In the result,
there is no merit in this Second Appeal.
13. Accordingly, this Second Appeal is dismissed. There shall be no
order as to costs.
20.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Principal Sub Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.677 of 2021
ABDUL QUDDHOSE, J.
Lm
S.A.(MD).No.677 of 2021
20.06.2023
https://www.mhc.tn.gov.in/judis
