Madras High Court
Manickam vs Govindan on 27 November, 2023
Author: P.T.Asha
Bench: P.T.Asha
S.A.No.846 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.846 of 2023
1. Manickam
2. Muthuvedi Ammal
3. Rajeswari
4. M.Sathiyan
5. M.Aruna ...Appellants
Vs.
Govindan ... Respondent
Prayer:- This Second Appeal has been filed under Section 100 of
Civil Procedure Code against the Judgment and decree dated
30.07.2019 made in A.S.No.09 of 2016 on the file of the Principal
Subordinate Judge, Krishnagiri, confirming the judgment and
decree dated 19.11.2015 made in O.S.No.87 of 2010 on the file of
the District Munsif Court, Krishnagiri.
For Appellant : Mr.R.Bharath Kumar
https://www.mhc.tn.gov.in/judis
1/10
S.A.No.846 of 2023
JUDGMENT
The defendants are the appellants before this Court. The
second appeal is filed challenging the judgment and decree passed
in A.S.No.9 of 2016 by the learned Principal Subordinate Judge,
Krishnagiri confirming the judgment and decree of the learned
District and Sessions Judge, Krishnagiri in O.S.No.87 of 2010.
2. The brief facts which are necessary for disposing of this
appeal are herein below set out. The parties are referred to in the
same ranking as before the trial Court.
3.The plaintiff has filed the above referred suit for declaration
and injunction against the defendants. It is their contention that the
plaintiff and the first defendant are the brothers and sons of late
Bosikutty @ Chinnapaiya Gounder. After the death of their father,
the plaintiff, the first defendant and other co-sharers have
partitioned and divided the ancestral properties in the year 1981
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and since then, they have been living separately and enjoying their
respective shares. The plaintiff is living separately and the
defendants have no right over his property. The plaintiff would
submit that after the partition, he has worked hard and has
purchased the suit properties under 11 separate sale deeds and
these properties are separate self acquired and independent
properties. One of the suit properties comprised in S.No.373
measuring 0.07 ½ cents was purchased by the plaintiff from his
own brother, Vadivelu under a registered Sale Deed dated
14.12.1984. The deed clearly states that the properties are
ancestral properties which have been got in a family partition and it
will go a long way to prove that the plaintiff and his siblings have
partitioned the property.
4. The first defendant, who is the brother of the plaintiff, has
been educated and is working in the Revenue Department as
De,puty Tahsildar. After purchasing the properties, the plaintiff had
entrusted all the original documents to the first defendant for the
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purpose of mutating the revenue records. The first defendant has
two wives. The second defendant is his first wife and the fourth
defendant is her son. The third defendant is his second wife, and
the fifth defendant is her son.
5. While so, three months ago, the defendants had been going
around in the village, proclaiming that the suit properties belonged
to them and that the patta stands in the name of the first defendant.
On 01.03.2010, defendants 2 to 5 had enmassed and alienated the
suit property and attempted to trespass into it. This attempt was
successfully prevented by the plaintiff and it was only then that he
has come to learn that his brother, the Deputy Tahsildar has
conveniently used the original documents to claim the title to the
property. Therefore, the plaintiff has come forward with the suit.
6. The defendants have filed the written statement inter-alia,
denying the contentions of the plaint and admitting the oral
partition of the year 1981, but contending that the plaintiff and the
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first defendant continued to be joint even after the oral partition.
He would submit that all the other properties have been purchased
only from out of the income of the joint family. The first defendant
would submit that since he is in a transferable job and not able to
manage the joint family properties, it was the plaintiff who was
managing the same both for himself and on behalf of the first
defendant. The properties were purchased from out of the income
arrived from the agricultural operations and the ancestral
properties. Therefore, all the properties partook the character of a
joint ancestral properties. Therefore, the defendant would submit
that the plaintiff is not entitled to a declaration.
7. The trial Court had framed the following issues:
1/ thjpf;F jhth brhj;Jf;fspy; jdpg;gl;l
chpikK:yk; Vw;gl;Ls;sjh>
2/ thjp nfhhpa[ss
; epue;ju cWj;Jf;fl;lis ghpfhuk;
thjpf;F fpilf;fj;jf;fjh>
3/ ntW vd;d ghpfhuk; thjpf;F fpilf;fj;jf;fJ>
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8. The plaintiff had examined himself as P.W1 and one
Govindan as P.W2. On the side of the defendants, the first
defendant had examined as D.W1 and one Ponnusamy,
Chinnapaiyan and Samikannu as D.Ws.2 to 4. The plaintiff had
marked as Exs.A1 to 12 and defendants had marked B1 to B6.
9. The learned Judge, on considering the evidence, both oral
as well as documentary and on sifting through the evidence had
come to the conclusion that a perusal of Exs.A1 to A10 would
clearly demonstrate that the plaintiff is the absolute owner of the
properties and that they are not the joint family properties, as the
defendants have miserably failed to prove the same. The learned
Judge had taken note of the revenue records which clearly showed
that the plaintiff is in possession of the property. Ultimately, the
suit was decreed as prayed for. Challenging the said judgment and
decree, the defendants have filed A.S.No.9 of 2016 on the file of
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the Principal Subordinate Court, Krishnagiri. The learned
Principal Subordinate Judge also confirmed the judgment and
decree of the trial Court and dismissed the appeal. Challenging the
same, the defendants are before this Court.
10. Heard the learned counsel for the appellant and perused
the materials available on record.
11. The defendants, while admitting the oral partition in the
year 1981, would contend that despite the partition, the first
defendant and the plaintiff continued to be joint. Therefore, it is for
the first defendant to prove that he and the plaintiff continued to be
a joint family and that out of the income of the joint family
property, the other properties were purchased, which are the subject
matter of Exs.A1 to A10. Further, the Courts below have observed
the fact that under Ex.A10-Sale Deed, in and by which the plaintiff
has sold 7 ½ cents to a third party and the property has been
described to the east of the first defendant's property, which would
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clearly prove that in the year 1981, the parties had equally divided
the properties in favour of the plaintiff as well as the first
defendant and the first defendant's contention that they continued to
be joint is totally wrong. The Courts below have chosen to ignore
Exs.B2 and B3-patta since the documents appear to have been
created by the defendants by taking advantage of the fact that he
was an official in the Revenue Department. The Court has also
observed that the first defendant has not proved his right to the
properties covered under Exs.A1 to A10-Sale Deeds. The
defendants have not been able to convince this Court otherwise.
Therefore, the judgment and decree of the Courts below are
confirmed. Accordingly, the second appeal is dismissed. No costs.
27.11.2023
Index :Yes/No
Internet:Yes/No
srn
To
1. The Principal Subordinate Judge, Krishnagiri,
2. The District Munsif Court, Krishnagiri.
https://www.mhc.tn.gov.in/judis
3. The Section Officer, V.R.Section, Section, High Court.
P.T.ASHA.J
srn
https://www.mhc.tn.gov.in/judis
27.11.2023
https://www.mhc.tn.gov.in/judis
