Madras High Court
Govindasamy vs Kuppammal on 4 November, 2024
2024:MHC:3822
S.A.No.1091 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2024
CORAM:
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
S.A.No.1091 of 2015
and
MP.No.1 of 2015
Govindasamy ... Appellant /Defendant
Vs.
Kuppammal ...
Respondent/Plaintiff
PRAYER: Second Appeal is filed under Section 100 of C.P.C against the
Judgement and Decree dated 11.04.2014 made in A.S.No.22 of 2014 on the file
of the Principal District Judge, Dharmapuri in confirming the Judgement and
Decree dated 20.04.2012 made in O.S.No.8 of 2008 on the file of the Additional
Subordinate Judge, (Trainee District Judge) Dharmapuri.
For Appellant : Mr.J.Ramakrishnan
For Respondent : Mr.K.Gandhikumar
https://www.mhc.tn.gov.in/judis
1/12
S.A.No.1091 of 2015
JUDGEMENT
This Second Appeal has been preferred against the judgement and
decree passed in A.S.No.22 of 2014, on the file of the learned Principal District
Judge, Dharmapuri dated 11.04.2014 in confirming the judgement and decree
dated 20.04.2012 made in O.S.No.8 of 2008, on the file of the Additional
Subordinate Judge, (Trainee District Judge) Dharmapuri.
2. The sole defendant is the appellant. The plaintiff, the sister of the
appellant, has filed a suit for partition by claiming an equal share of the suit
property, and the same has been decreed by the Trial Court and confirmed by
the First Appellate Court as well. Now the defendant has filed this Second
Appeal.
3. The short facts of the plaint filed by the respondent /plaintiff are
as under:
The suit properties are the joint family properties of the plaintiff and the
defendant. One Boothala Gounder and Nanjammal, are the parents of the
plaintiff and the defendant. Boothala Gounder died about 20 years ago, and
https://www.mhc.tn.gov.in/judis
Nanjammal died before two years from the date of filing the suit. The plaintiff
and the defendant are the only legal heirs for their parents. After the death of
their parents, the plaintiff and the defendant were in joint possession of the suit
properties. The father of the plaintiff predeceased her mother. The mother of the
plaintiff had executed a settlement deed in respect of a portion of the suit
properties to the plaintiff on 15.05.1987 [Ex.B4]. As the defendant was
attempting to create encumbrances over the suit property in order to defeat the
rights of the plaintiff; the plaintiff has issued a legal notice on 22.12.2007
[Ex.A3=Ex.B8] for partition. The defendant received the notice and issued a
reply on 08.01.2008 with false allegations stating that partition has already been
effected on 21.02.1995 [Ex.A4=Ex.B9]. As the defendant is not amendable for
partition as claimed by the plaintiff, she has filed the suit for partition by
claiming half a share in the suit properties.
4.The avernments made in the written statement filed by the
defendant:
Though a portion of the suit properties stand in the name of the mother, it
is not her separate property, and the property has been purchased from the joint
family income, and the mother Nanjammal is only a name lender for the sale
deed. In fact, the said property has been allotted to the share of the plaintiff. But
https://www.mhc.tn.gov.in/judis
in order to avoid stamp duty expenses, a settlement deed was executed in
respect of the said property in favour of the plaintiff instead of executing a
partition deed. The plaintiff has one male child through her first marriage, which
was not successful. Hence, the plaintiff married one Raman and demanded a
partition. At that time the plaintiff has been allotted with some properties, and
hence the plaintiff is not entitled to another partition. As the plaintiff was
fighting with the defendant, a panchayat was convened in the presence of the
elders, and as per the panchayat, the defendant has paid a sum of Rs.18,000/-
and allotted 50 cents of land to the plaintiff through a Muchalika. The defendant
has been in exclusive possession of the suit property for more than 23 years,
and hence the plaintiff is not entitled to the relief.
5.On the basis of the above pleadings, the Trial Court has framed the
following issues:
"1. Whether the alleged oral partition some 23 years back as
alleged in the statement is true and valid?
2. Whether the Muchalikka alleged to have been executed by
the plaintiff as alleged in the statement is true and valid?
3 Whether the plaintiff and the defendant are jointly entitled to
https://www.mhc.tn.gov.in/judis
the suit properties?
4. Whether the plaintiff is entitled to share in the suit
properties?
5. Whether the plaintiff is entitled to partition and separate
possession?
6. Whether the plaintiff is entitled to permanent injunction?
7. What reliefs?
6. During the course of trial, on the side of the plaintiff, two witnesses
have been examined as PW.1 and PW.2 and Ex.A1 to A4 were marked. On the
side of the defendant, two witnesses have been examined as DW.1 and DW.2
and Ex.B1 to B9 were marked.
7. After the conclusion of the trial, the Trial Court has decreed the suit,
and the defendant has preferred a First Appeal. The First Appellate Court having
got convinced with the judgment of the Trial Court, confirmed the same. Now
the Second Appeal has been filed and it has been admitted on the following
substantial question of law:
https://www.mhc.tn.gov.in/judis
"Whether the Courts below were right in decreeing the suit
for partition when there is an admission on the part of the
plaintiff that there was already a partition effected 23 years
before filing of the suit?"
8. The learned counsel for the appellant submitted that the plaintiff, who
was examined as P.W.1, admitted in her evidence during the cross-examination
that already a partition was effected. She has stated [[jhd brl;oy; bkd;l;
md;W ghfg;gphptpid Vw;gl;ljh vd;why; Mk;]. In the deed of settlement
executed by the mother of the plaintiff in favor of the mother, the western
boundary is shown as the property allotted to Govindasamy, and that would
also confirm that the partition has already taken place. Even in the plaint, the
plaintiff has pleaded that her mother has settled the property 'allotted to her',
and hence the above words would show the impact of partition.
8.1. It is further submitted that admitted facts need not be proved. But
both the Trial Court and the First Appellate Court did not appreciate the above
legal position and had chosen to grant the relief sought by the plaintiff, which is
not correct.
https://www.mhc.tn.gov.in/judis
9.The learned counsel for the respondent submitted that both the Trial
Court and the First Appellate Court have appreciated the evidence on the basis
of the records produced before the Court and had decreed the suit and the
judgment of the First Appellate Court in confirming the judgment of the Trial
Court does not require any interference.
10. This Court heard the submissions made by both sides learned
counsels and perused the materials available on record.
11. The relationship between the appellant and the respondent is not in
dispute. When the plaintiff claims that both the plaintiff and the defendant were
in joint enjoyment of the suit property subsequent to the death of their parents,
it is claimed by the appellant/defendant that the respondent/plaintiff has already
been allotted her share in the joint family properties and the suit property
exclusively belongs to the share of the appellant/defendant. The appellant relied
on the settlement deed executed in favour of the plaintiff by her mother on
15.05.1987 [Ex.B4] in order to substantiate his argument that the settlement
deed has been executed in lieu of partition deed, in order to avoid the stamp
duty commitment.
https://www.mhc.tn.gov.in/judis
12. The further submission is that though the property comprised in the
settlement deed was the properties in the name of his mother and his mother is
only a name lender and the property has been purchased from and out of the
joint family income. It is needless to state that when a sale deed stands in the
name of a particular person the presumption is that the property belongs to the
person in whose favour the sale deed has been executed. When the disposition
of the private property is reduced into writing and if the documents so written is
produced before the Court, that would exclude for the oral evidence for the
purpose of proving the content of the same. However any contrary evidence can
be dealt by the party who disputes the same. Though the appellant/defendant is
not a party to the settlement deed, he questions the settlement deed stating that
the settlement deed was only a substitute to a family partition through which the
property conveyed through the settlement deed has been allotted to the share of
the plaintiff.
13. The one and only evidence which the plaintiff is attempting to rely to
substantiate the defendants is the one line statement of P.W.1 which she had
given in her evidence during the course of the cross examination. In the cross
examination P.W.1 [plaintiff] has stated that " jhd brl;oy; bkd;l; md;W
https://www.mhc.tn.gov.in/judis
ghfg;gphptpid Vw;gl;ljh vd;why; Mk; ". But in the preceding sentences it
has been specially asked to P.W.1 that there was a partition happened in the
family prior to the execution of the settlement deed and for which the PW.1 has
denied. So the evidence of P.W.1 has to be read comprehensively and not by
adopting pick and choose method.
14. Despite the settlement is of the year 1987 the appellant/defendant
never thought of challenging the same or to get a relief of declaration to the
effect that the property involved in the settlement deed is out of a family
partition. On perusal of the documents produced by the defendant himself it is
seen that there are joint pattas standing in the name of his mother and himself
[Ex.B5] and another patta is standing in the name of his mother, himself and
his sister. These pattas are dated 02.01.2012 and16.04.2010 respectively. Had
the property subjected to the settlement also considered as a family property and
the same has been allotted in favour of the plaintiff, the pattas of the subsequent
period would not have included the other shares namely the mother and the
sister of the defendant.
15. In the absence of any materials to show that the property conveyed
through the settlement deed [Ex.B4] is a joint family property or that the said
https://www.mhc.tn.gov.in/judis
property represents the share of the plaintiff in a family partition, it is right for
the trial Court to decree the suit for partition as prayed. As the trial Court has
rightly appreciated both the oral and documentary evidence and has decreed
the suit, the first Appellate Court though it fit to confirm the same. As the
appellant /defendant has filed the second appeal just by relying on an isolated
sentence in the evidence of PW.1 without adverting to read her evidence in a
comprehensive manner, the appeal lacks in merit.
16. In the result, this second Appeal stands dismissed and the Judgement
and Decree of the learned Principal District Judge, Dharmapuri dated
11.04.2014 made in A.S.No.22 of 2014 is confirmed. No costs. consequently,
the connected miscellaneous petition is closed.
04.11.2024
Index : Yes/No
Speaking/ Non-Speaking
Internet: Yes/No
Neutral: Yes/No
jrs
To,
1. The Additional Subordinate Judge,
(Trainee District Judge) Dharmapuri.
2. The Principal District Judge, Dharmapuri.
https://www.mhc.tn.gov.in/judis
3. The Section Officer, V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
jrs
and
04.11.2024
https://www.mhc.tn.gov.in/judis
