Madras High Court
Sirumbayee vs Chellammal on 17 April, 2024
S.A.(MD)No.654 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.(MD)No.654 of 2007
Sirumbayee ...Appellant
-Vs-
Chellammal ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 28.06.2006 made in
A.S.No.134 of 2005 on the file of the District Judge Court at Karur, confirming
the judgment and decree, dated 30.11.2004 and made in O.S.No.13 of 2001 on the
file of the Subordinate Judge Court, Kulithalai, Karur District.
For Appellant : Mr.S.Sridharan
For Respondent : Mr.D.Kirubakaran
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S.A.(MD)No.654 of 2007
JUDGMENT
The defendant in the suit is the appellant. The respondent, who is the sister
of the appellant filed a suit for partition claiming half share in the suit property.
The suit was decreed by the trial Court and the findings of trial Court were was
affirmed by the first appellate Court. Aggrieved by the concurrent findings, the
appellant/defendant has preferred the above appeal.
2.According to the respondent/plaintiff, the suit “A” schedule property
belonged to her father, Theetha Gounder and he executed a Will, dated
30.09.1983 under Ex-A1 bequeathing the suit properties equally to the plaintiff
and the defendant. It was claimed by the respondent that the suit 'B' schedule
property was purchased by Theetha Gounder out of the income from the suit “A”
schedule property. The suit 'C' schedule property belonged to the mother of the
parties, namely, Patchaiammal and after her death, both the appellant the
respondent were entitled to half share.
3.The appellant/defendant herein filed a written statement claiming that
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respondent/plaintiff was ousted from the suit property, as she was living away
from the suit property for the past 20 years. It was also claimed by the respondent
that the cattles described in the suit 'B' schedule property were purchased by her
husband, Manickkam out of his own money and therefore, the
respondent/plaintiff was not entitled to any share in the suit properties.
4.Before trial Court, the respondent/plaintiff was examined as PW-1. The
Advocate Commissioner, who visited the suit property, was examined as PW-2
and the attestor to the Will relied upon by the respondent/plaintiff was examined
as PW-3. On behalf of the respondent/plaintiff, two documents were marked as
Ex-A1 and Ex-A2. On behalf of the appellant/defendant, she was examined as
DW-1 and no documentary evidence was let in on behalf of the
appellant/defendant. The Advocate Commissioner's report and plan were marked
as Ex-C1 and Ex-C2.
5.The trial Court, on appreciation of oral and documentary evidence
available on record, came to the conclusion that the appellant/defendant failed to
prove the plea of ouster raised by her. The trial Court also gave a factual finding
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that the appellant/defendant failed to prove that the cattles described in the suit
“B” schedule property were purchased by her husband, Manikkam, out of his own
earnings and therefore, the trial Court was pleased to grant a decree for partition
of half share in favour of the respondent/plaintiff. Aggrieved by the same, the
appellant preferred an appeal in A.S.No.134 of 2005 on the file of the District
Court, Karur. The first appellate Court affirmed the findings of the trial Court.
Aggrieved by the concurrent findings, the defendant is before this Court.
6.The learned Counsel for the appellant submitted that the
respondent/plaintiff was failed to lead any evidence to prove her joint possession
in respect of the suit property and hence, the Courts below ought not to have
presumed joint possession and granted decree for partition. The learned Counsel
submitted that the respondent is living separately for more than 20 years and
therefore, she has been ousted from the enjoyment of the suit property for more
than statutory period and the said fact has not been properly appreciated by the
Courts below.
7.The appellant and the respondent are sisters. It is the admitted fact that
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both of them are the daughters of one Theetha Gounder. The Will executed by
Theetha Gounder, dated 30.09.1983 was marked as Ex-A1 and the same was
proved by examining one of the attestor to the document, who was examined as
PW-3. The Courts below on appreciation of oral evidence of PW-3 came to the
factual finding that Ex-A1, Will, was proved. Therefore, as per the terms of the
Will, the parties are entitled to equal share in suit 'A' schedule property.
8.As far as the suit 'B' schedule property is concerned, the
appellant/defendant has set up a defence, as if the cattles in the suit 'B' schedule
property were purchased by her husband, Manickkam, out of his own money.
However, she failed to lead any evidence in support of the plea, except her own
interested testimony. In such circumstances, the Courts below have rightly
rejected the plea regarding suit 'B' schedule property.
9.The suit 'C' schedule properties are the properties owned by the mother of
the parties, namely, Patchaiammal. After her death, both the appellant the
respondent are entitled to half share each. Though the appellant/defendant
pleaded ouster, she failed to prove the same by leading any independent and
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acceptable evidence, except her interested testimony. In such circumstances, both
Courts below have given a factual finding that the appellant failed to prove the
plea of ouster and negatived her claim. I do not find any questions of law much
less a substantial questions of law to interfere with the findings of fact reached by
the Courts below. Accordingly, the Second Appeal stands dismissed. No costs.
17.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cmr
To
1.The Subordinate Judge, Kulithalai, Karur District.
2.The District Judge at Karur.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SOUNTHAR, J.
cmr
17.04.2024
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