Madras High Court
A.C.Ramani vs A.R.Geetha on 5 September, 2023
AS. No.209 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09. 2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
AS. No. 209 of 2017
A.C.Ramani
...Appellant
Vs.
1.A.R.Geetha
2.A.C.Ashokumar
3.A.C.Prabu
4.A.C.Hemavathi
5.A.S. Anand Babu
...Respondents.
PRAYER : This first appeal is filed under section 96 read with Order XLI
Rule 1 of the Civil Procedure Code, praying to set aside the judgment and
preliminary decree passed in O.S No. 2094 of 2013 on the file of the XV
Additional City Civil Court, Chennai dated 18.04.2015.
For Petitioners : Ms.K.Dhanalakshmi
For R1 : Refused
For R2 to R5 : No appearance
1
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AS. No.209 of 2017
JUDGMENT
Challenging the impugned judgment and preliminary decree passed
by the XV Additional City Civil Judge, Chennai, in O.S No. 2094 of 2013,
fourth defendant in the suit preferred this appeal.
2. Originally suit in O.S No. 2094 of 2013 was filed by the first
respondent herein/plaintiff for the relief of partition in respect of suit
properties and the same was decreed in her favour by allotting 1/3 share in
the suit property. Aggrieved over the same, the fourth defendant in suit
preferred this appeal.
3. The learned counsel for the appellant submitted that the plaintiff's
father Ramamurthy along with his two brother namely Srinivasan, Chinniah
are sons of C.Rajagopal Naidu each having 1/3 share in the properties as
per the Will dated 09.11.1966, out of two properties one is suit property and
another property is bearing Door No. 1, Pulianthope, 5th lane (Cattle Shed).
In the year 1999 plaintiff's father sold the said property i.e., Door No.1,
Pulianthope, 5th lane (Cattle shed) and utilized the entire sale proceeds.
Hence, in oral partition among the brothers plaintiff's father Ramamurthy
given up his 1/3 share in the suit property in favour of the defendants
thereby the plaintiff is not entitled for share in the suit property but the Trial
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AS. No.209 of 2017
Court without appreciating above facts illegally decreed the suit as such is
unfair and liable to be set aside. Hence prays to allow this appeal.
4. By way of reply, the learned counsel for the respondent/plaintiff
submitted that the plaintiff's father Ramamurthy was having 1/3 share in the
suit property so also 1/3 share in Door No.1, Pulianthope, 5th lane (Cattle
shed) was sold by all of them and equally shared the sale proceeds hence
there was no such oral partition was effected as alleged by the appellant.
Besides, they failed to prove oral partition. Hence he prays to dismiss this
appeal.
5. Considering the submissions on either side, the issue to be decided
is whether the plaintiff is entitle for 1/3 share in the suit property and
whether the defendant proved their plea of oral partition?
6. For the sake of convenience parties are denoted as per the suit.
Considering the submissions on either side and also the facts reveals that
the suit property was originally belongs to one Rajagopal Naidu who is
grand father of the plaintiff and the defendants 1 to 3 and 5, father-in-law of
the fourth defendant. The said Rajagopal Naidu executed a Will dated
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AS. No.209 of 2017
09.11.1966 by bequeathing his second item of the property in favour of his
sons who are fathers' of the respondents herein (Ramamurthy plaintiff's
father, Srininvasan fourth respondent's father, and Chinnaih 1 to 3
respondents' father). Thereafter, Will was probated accordingly three sons
became the absolute owner of the property these facts are not disputed by
the parties. The contention of the plaintiff was that one of the property in
bearing Door No. 1, Pulianthope, 5th lane (Cattle Shed) was sold by the
plaintiff's father and his brother in the year 1999 and he received 1/3 share
in sale proceeds. After the plaintiff's father death the plaintiff collecting rent
from one shop portion so also defendants collecting rent from other shops.
With regard to suit property the plaintiff claiming 1/3 share based on her
deceased father's 1/3 share as per the Will as his only legal heir and she
demanded amicable partition from the defendants who are the legal heirs of
her father's brother but they refused hence he filed suit for partition. The
contention of the defendant is that they denied the share of the plaintiff's
father stating that entire sale proceeds obtained by selling the property
bearing Door No. 1, Pulianthope, 5th lane (Cattle Shed) was utilized by the
plaintiff's father and as per the oral partition deed the plaintiff's father given
up his 1/3 share in the suit property hence they refused the right of the
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AS. No.209 of 2017
plaintiff. Since the defendants pleaded oral partition the burden is on them
to prove the oral partition before the Trial Court but the defendants not
produced any independent witness to prove their oral partition. Furthermore,
in the written statement filed by the defendants there is no specific
averments with regard to oral partition mere allegation is not sufficient to
conclude that oral partition was effected. Therefore defendant not produced
the alleged oral partition. Accordingly, issue is answered. As discussed
above the Trial Court rightly decreed the suit which needs no interference.
Moreover, D.W.1 also admits in his proof affidavit that the sale proceeds
taken up by the plaintiff's father, 4 and 5 respondent's father. If really the
fourth defendant not received the sale proceeds she should have examined
herself as witness to disprove the said contention but she was not entered
into witness box thereby the Trial Court rightly drawn adverse inference
against her which needs no interference of this Court. Hence the defendants
failed to prove the oral partition thereby the plaintiff deemed to be an co-
sharer. Thus she is entitled for share in the suit property. Hence suit
decreed as prayed for.
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AS. No.209 of 2017
10. In result, this appeal is dismissed. No cost. Consequentially
connected miscellaneous petition is closed.
05.09.2023
pbl
https://www.mhc.tn.gov.in/judis
AS. No.209 of 2017
T.V.THAMILSELVI,J.
Pbl
To
1. The XV Additional City Civil Court, Chennai.
2.The Section Officer,
V.R Section.
AS. No.209 of 2017
05.09.2023
https://www.mhc.tn.gov.in/judis
