Madras High Court
Muniammal (Died) vs Murugammal on 23 November, 2023
S.A.No.41 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.41 of 2018
and
CMP.No.734 of 2018
1.Muniammal (Died)
2.Gopal
(A1-Died, A2 and RR1 to 6 already
on record are recorded as LR's of the
deceased A1 vide Court order
dated 23.11.2023 made in S.A.No.41/2018
& CMP.No.734/2018) ... Appellants
Vs.
1.Murugammal
2.Lakshmi
3.Yasotha
4.Rajam
5.Shanthi
6.Manjula ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 26.10.2016 made in
A.S.No.358 of 2015 passed by the learned XV Additional Judge, City Civil
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1/8
S.A.No.41 of 2018
Court, Chennai, reversing the judgment and decree dated 21.08.2015, made in
OS.No.1593 of 2014, passed by the XVIII Assistant Judge, City Civil Court,
Chennai.
For Appellants : Mr.V.Ramana Reddy
For Respondents : Mr.V.Balaji for R1 to R6
JUDGMENT
The unsuccessful defendants 1 and 4 are the appellants. Pending
Second Appeal, the first appellant died and her legal heirs namely second
appellant and other respondents (R1 to R6) were recorded as her legal
representatives. The daughters and son of the deceased first appellant, namely
respondents 1 to 4 filed a suit for partition seeking 1/8th share each in the suit
property. The suit was dismissed by the trial Court and the appeal filed by the
respondents 1 to 4 was allowed by the first Appellate Court. Aggrieved by the
same, the defendants 1 and 4 have come up with this Second Appeal.
2. According to the respondents 1 to 4, they are all daughters of
Ganesan and deceased first appellant. The respondents 5 and 6 are other
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daughters of Ganesan and deceased first appellant. The second appellant is the
son of the said Ganesan and first appellant. It was the case of the respondents
1 to 4 that the suit property belonged to Arulmighu Valleeswaran Temple,
Mylapore and their father Ganesan was lessee of the suit property. He
constructed superstructure in the site belonged to the temple and had been
living there till his death. After the death of Ganesan, all of his legal
representatives namely wife and children were entitled to 1/8th share and the
respondents 1 to 4 demanded partition during July 2014 and the same was
refused by the appellants and hence they were constrained to file a suit seeking
partition of their 1/8th share in the suit property.
3. The appellants/defendants 1 & 4 filed a written statement and
resisted the suit on the ground that originally thatched superstructure was put
up by his father and later on out of his own earnings the second appellant
herein converted the thatched superstructure with the tiled house and he has
been living there along with first appellant. It was averred by the second
appellant that during the life time of his father Ganesan, he expressed his
desire to give entire suit property to the second appellant and as such he has
been in possession and enjoyment of the suit property.
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4. The trial Court on appreciation of oral and documentary
evidence available on record came to the conclusion that the suit property
belonged to the temple and therefore, the suit filed by the respondents 1 to 4
without impleading the owner of the site was bad for non- joinder of necessary
parties and consequently, dismissed the suit. Aggrieved by the same, the
respondents 1 to 4 preferred an appeal in A.S.No.358 of 2015 on the file of the
XV Additional City Civil Court, Chennai. The first Appellate Court reversed
the findings of the trial Court and granted a preliminary decree for partition of
1/8th share in respect of lease hold right over the suit site and superstructure
standing thereon. Aggrieved by the same, the defendants 1 & 4 have come up
with this Second Appeal.
5. The learned counsel for the appellants submitted that the site of
the suit property belonged to the temple and therefore, the same is not
available for partition. As far as the superstructure standing in the suit site is
concerned, the same was built by the second respondent and all revenue
records stand in his name. Therefore, the First Appellate Court erred in coming
to the conclusion that that the superstructure was put up by the father of the
parties.
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6. It is not disputed that site of the suit property belongs to
Arulmighu Valleeswarar Temple, Mylapore and the father of the parties
namely Ganesan was lessee of the site. It is also admitted by the appellants in
the written statement that the father of the parties Ganesan had put up the
thatched superstructure in the suit property. The appellants claim that thatched
structure was subsequently converted as tiled house by the second appellant
out of his own earnings
7. Though the second appellant pleaded that the tiled house
standing in the suit property was put up by him, he has not produced any
documents to show that the tiled house was put up by him. He could have
produced permission obtained from local authorities for constructing tiled
house to prove that he had put up the tiled house superstructure. Further, he
has not examined any independent witness to prove that the present
superstructure was put up by him out of his own earnings. The learned counsel
for the appellants by relying on the property tax receipt, metro water card and
Tamil Nadu Electricity Board card etc., submitted that all these documents
stand in the name of the second appellant and therefore, he should be
construed as the owner of the superstructure.
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8. It is seen from the facts of the case that the second appellant is
the only son of the deceased Ganesan and all respondents are his daughters. In
these circumstances, merely because property tax receipt and metro water card
etc., were mutated in the name of the second appellant, it cannot be presumed
that he had put up the construction. When he specifically raised a plea that the
thatched superstructure put up by the father Ganesan was removed and new
tiled house was put up by him out of his own earnings he has to prove the
same. In the case on hand, he failed to establish through any oral and
documentary evidence that he had put up new superstructure in the suit
property out of his own earnings. The interested testimony of the second
appellant is not sufficient to support the said fact.
9. In such circumstances, the first Appellate Court rightly came to
the conclusion that the superstructure that stands in the suit site was built by
father of the parties namely Ganesan and hence, the respondents 1 to 4 were
entitled to 1/8th share each in the suit property. I do not find any substantial
question of law arising for consideration in the Second Appeal to interfere
with the said findings arrived by the First Appellate Court. Accordingly, this
Second Appeal stands dismissed.
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10. a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the Courts below.
b) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
23.11.2023
(2/2)
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
dna
To
1.The XV Additional Judge, City Civil Court, Chennai
2.The XVIII Assistant Judge, City Civil Court, Chennai.
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S.SOUNTHAR, J.
dna
and
(2/2)
23.11.2023
https://www.mhc.tn.gov.in/judis
