A.M.Sivakumar vs Kaaliammal @ Manoramma
2023 Latest Caselaw 1611 Mad

                                                                                 S.A.No.144 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated : 01.03.2023

                                                         CORAM

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                  S.A.No.144 of 2023
                                              and C.M.P.No.4139 of 2023

                   A.M.Sivakumar                                             ...Appellant
                                                          Vs.

                   1.Kaaliammal @ Manoramma
                   2.Sujatha
                   3.Vimala
                   4.A.G.Radhakrishnana                                     ...Respondents

                   Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
                   Code to set aside the judgment and decree dated 06.02.2016 made in
                   OS.No.134 of 2011 on the file of the Subordinate Judge, Udhagamandalam,
                   Nilgiris which has been confirmed by the judgment and decree dated
                   08.08.2022 made in AS.No.29 of 2016 on the file of District Judge, Nilgiris
                   at Udhagamandalam and consequently to allow the above second appeal.
                                         For Appellant     : M/s.R.Gouri

                                                    JUDGMENT

This second appeal is directed as against the judgment and

decree dated 06.02.2016 made in OS.No.134 of 2011 on the file of the

Subordinate Judge, Udhagamandalam, Nilgiris which has been confirmed

by the judgment and decree dated 08.08.2022 made in AS.No.29 of 2016 https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

on the file of District Judge, Nilgiris at Udhagamandalam, thereby dismissed

the suit for partition.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial Court.

3. The petitioner is the second plaintiff and the respondents are

the defendants. The case of the plaintiffs is that the first plaintiff's husband

and the second plaintiff's father A.G.Mallan and the husband of the first

defendant / the father of the other defendants had jointly purchased the suit

property from one, Arulraj. Since the property was purchased by them, they

became the absolute joint owners and they were in possession and

enjoyment of the said property. On 11.10.2007, the husband of the first

plaintiff died intestate leaving behind the plaintiffs as his legal heirs to

succeed his undivided half share in the suit property. Prior to the death of

the first plaintiff's husband, the husband of the first defendant died intestate

leaving behind the defendants as his legal representatives to succeed his

undivided half share of the suit property. After their demise, the plaintiffs

and the defendants have become absolute owners of the suit property. No

partition had taken place either orally or by any document or by any court

decree regarding the bequeathed property. Hence, the suit for partition. https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

4. The defendants resisted the plaintiffs' case by way of filing

written statement stating that the suit property was purchased by Singiri

Gowder and H.Joghee Gowder in the name of their minor sons i.e. the

husband of the first plaintiff and the husband of the first defendant

respectively. The plaintiffs had never been in joint possession and

enjoyment of the suit property at any point of time. Even after the death of

the husband of the first plaintiff, they had never claimed any share over the

property. Only in the year 2011, they filed the present suit. Originally, the

suit property was purchased as vacant land. As per the family arrangement

between Singiri Gowder and Joghee Gowder, the suit property was allotted

in favour of Singiri Gowder. The said Joghee Gowder relinquished his right

over the suit property even in the year 1966 itself. Thereafter, the Singiri

Gowder, out of his own source of income, had constructed 14 dwelling

houses bearing door Nos.239 to 252 after getting approval from the local

body. The husband of the first plaintiff died in the year 2007 and the

husband of the first defendant died in the year 2002. During the life time of

the husband of the first plaintiff, they never claimed any share in the suit

property. After his demise, the plaintiffs have come forward with the present

suit for partition with false allegations. Therefore, they are not entitled for https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

any partition since already due to family arrangement, the entire properties

were alloted in favour of the husband of the first defendant.

5. Based on the above pleadings, the trial court framed the

following issues:

1/ thjpfSf;F jhth brhj;jpy; 1-2 ghf chpik bghWj;J Kjy;epiy jPhg; g; hiz bgw jFjpa[ilath;fsh> 2/ 1966k; Mz;onyna n$hfpft[lh; jdJ ghf chpikia tpl;Lf; bfhLj;Jtpl;lhuh> 3/ jhth brhj;jpy; rp';fphpft[lh;jhd; tPLfs; fl;odhuh> 4/ rp';fphpft[lhpd; kfd;fs; Vw;fdnt ghfk;

                              gphpj;Jf;bfhz;lduh>
                                   5/     thjpfs;       jhth       brhj;jpy;     RthjPdj;jpy;
                              ,y;iyah>

6/ ePjpkd;w fl;lzk; gphpt[ 37(1)d;go brYj;jg;gl ntz;Lkh> 7/ thjpfSf;F fpl;Lk; ,ju jPht ; [ vd;d>

6. In support of the plaintiffs' case, P.W.1 was examined and six

documents were marked as Ex.A.1 to Ex.A.6. On the side of the defendants,

D.W.1 & D.W.2 were examined and Ex.B.1 to Ex.B.7 were marked. Ex.X.1 https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

and Ex.X.2 were marked as Court documents. After analysing the facts and

evidences, the trial Court dismissed the suit for partition with costs.

Aggrieved over the judgment and decree of the trial Court, the second

plaintiff/ the appellant preferred appeal suit in AS.No.29 of 2016 before the

learned District Judge, Nilgiris at Udhagamandalam. The first appellate

Court on appreciating the materials placed on records, dismissed the appeal

by confirming the judgment and decree passed by the trial Court.

Challenging the same, the second plaintiff has come forward with the

present second appeal on the following substantial questions of law:

a) Whether the courts below have erred in dismissing the suit for partition when admittedly the suit property was purchased in the name of the minor children by their fathers Singiri Gowder and H.Joghee Gowder respectively who were own brothers and ever since from the date of purchase the property was in joint possession and enjoyment over generation and on record there is no partition which took place between the descendants at any point of time?

b) Whether the courts below have erred in not decreeing the suit for partition since admittedly the plaintiffs and defendants are the common descendants of Johee Gowder and Singiri Gowder who are own brothers and ever since from the date of purchase the property was https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

in joint possession and enjoyment over generation and on record there is no partition which took place between the descendants at any point of time?

c) Whether the courts below have erred in not discarding the defence taken by the defendants that family arrangement has been entered between Singiri Gowder and H.Johee Gowder and that the suit property was allotted to Singiri Gowder and H.Joghee Gowder relinquished his right over the suit property in 1966 as the same is absolutely false, after thought and the allegations is against the principles of law as minor's share over the suit property cannot be relinquished without the permission of the court?

d) Whether courts below are right in not applying the proposition of law that minor's share over the suit property cannot be relinquished without the permission of the court which is very vital for adjudication in the present facts and circumstances of the case?

e) Whether the courts below are right in not appreciating in proper perspective that since the property remain as joint nucleus and no effective partition took place between the parties, the plaintiff is entitled to succeed over the suit property and the defendants physical possession over the suit property will not disentitle the plaintiff's right over the same and the concept of ouster

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

S.A.No.144 of 2023

raised by the defendant is untenable and against law?

f) Whether the courts below are right in not applying the proposition of law that the defendants physical possession over the suit property is deemed to be in possession on behalf of the plaintiff who are co sharer over the joint nucleus suit property which was not subjected to partition by metes and bounds at any point of time from the date of purchase?

7. The learned counsel appearing for the appellant submitted that

no documents have been produced by the defendants in order to prove that

there was family arrangement or oral partition between the Singiri Gowder

and Joghee Gowder. Admittedly, the property was purchased by their

grandfather when they were minors. Therefore, without permission of the

Court, the father of the first plaintiff's husband had no right to relinquish the

minor son's right over the property. Therefore, even assuming that there was

a family arrangement, it is not valid one since at the time of relinquishment

of their right of undivided share over the suit property, it cannot be

relinquished without the permission of the court. Therefore, they are entitled

for half share over the property. Mere delay in filing the partition suit cannot

deny the right over the property. Both the courts below unfortunately

dismissed the suit on the ground of delay and they never claimed the suit https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

property till the year 2011.

8. Heard, the learned counsel appearing for the appellant.

9. On perusal of records, revealed that originally the suit property

purchased by the grandfather of the husband of the first plaintiff and the

husband of the first defendant in the year 1959 in the name of the minor

sons i.e. A.J.Mallan and S.Gopal. The first plaintiff is the wife of A.J.Mallan

and the first defendant is the wife of S.Gopal. It was purchased on

07.10.1959 by the registered sale deed. Thereafter, the husband of the first

plaintiff died even in the year 1966 itself. There was family arrangement

between both the family, in which the suit property was allotted in favour of

Singiri Gowder. Thereafter, the said Singiri Gowder had constructed 14

houses in the suit property. The said Singiri Gowder had four sons and they

had partitioned the suit property. Accordingly, they are in possession and

enjoyment of their respective shares of the suit property. Original sale deed

dated 07.10.1959 was marked as Ex.A1. It revealed that the suit property

was purchased from one Arulraj in the name of A.J.Mallan and S.Gopal.

They were minors at the time of purchasing the suit property. Only after the

death of the husband of the first plaintiff, the plaintiffs have come forward https://www.mhc.tn.gov.in/judis

S.A.No.144 of 2023

with the suit for partition. In fact, the defendants also examined DW2, who

is the Deputy Block Development Officer, who categorically deposed that

the houses were constructed in the year 1969 and since 1970, the houses in

door Nos.239 to 252 stood in the name of the said Singiri Gowder and the

same was marked as Ex.X1. The tax receipts also stand in the name of the

said Singiri Gowder.

10. Though the plaintiffs had taken specific stand that they along

with the defendants are in joint possession and enjoyment of the suit

property, all the tenants were inducted by the defendants and they are

collecting rent from the respective houses. The plaintiffs did not even

examine any one of the tenants in order to prove that they inducted tenants

in respect of their share over the property. There is also no evidence to show

that they are collecting rent for the suit property. Having been kept mum

from the year 1966 to 2011, that too after the demise of the husband of the

first plaintiff, the present suit has been filed for partition. Even it is curious

to note that when the husband of the first plaintiff was alive till 2007, he did

not seek for any partition or claim any right over the suit property. It shows

that they had family partition and the suit property was allotted in favour of

the husband of the first defendant.

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

S.A.No.144 of 2023

11. Therefore, this Court does not find any valid reason to interfere

with the findings rendered by the Courts below as such the Courts below

have analyzed the evidences both the documentary and oral in detail,

adduced by the parties and by giving cogent reasons, concluded rightly and

dismissed the suit filed by the plaintiffs. As such, this Court is of the

considered opinion that no substantial questions of law involved in this

appeal.

12. Accordingly, the judgment and decree dated 06.02.2016 made

in OS.No.134 of 2011 on the file of the Subordinate Judge,

Udhagamandalam, Nilgiris confirming the judgment and decree dated

08.08.2022 made in AS.No.29 of 2016 on the file of District Judge, Nilgiris

at Udhagamandalam is confirmed and this Second Appeal is dismissed.

Consequently, connected miscellaneous petition is closed. There shall be no

order as to costs.

01.03.2023 Index : Yes/No Internet : Yes/No Speaking order/Non-speaking order

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

S.A.No.144 of 2023

lok

To

1.The Subordinate Judge, Udhagamandalam, Nilgiris

2.The District Judge, Nilgiris at Udhagamandalam

3. The Section Officer, V.R. Section, Madras High Court, Chennai.

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

S.A.No.144 of 2023

G.K.ILANTHIRAIYAN, J.

lok

S.A.No.144 of 2023

01.03.2023

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