Madras High Court
Manikandan vs /8 on 28 October, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.657 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.657 of 2024
and
C.M.P.No.20939 of 2024
Kishtappa Naicker (died)
1. Manikandan
2. Bhavani
Valliammal (died)
3. Maari
4. Egavalli
5. Sanker
6. Saravanan
Pavun (died)
7. Kanniammal
8. Mariammal
9. Sarala
10. Sulochana
11. Poovarasan ... Appellants
Vs.
1/8
https://www.mhc.tn.gov.in/judis
S.A. No.657 of 2024
1. M.Rani
2. Saravanan .. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 18.04.2023 made in
A.S.No.13 of 2019 on the file of Subordinate Judge, Arakkonam
confirming the judgment and decree dated 28.09.2018 passed in
O.S.No.213 of 2008 on the file of District Munsif Court, Sholinghur.
For Appellants : Mr.A.Gouthaman
For Respondents : Mr.A.K.Raghavan for R1
JUDGMENT
The appellants, who are the defendants 2 to 4, 5, 7, 8, 9 and legal
heirs of 10th defendant have preferred this Second Appeal. Challenging the
concurrent findings of the courts below rendered in A.S.No. 13 of 2019 by
the Subordinate Judge, Arakkonam arising out of trial court findings in
O.S.No.213 of 2008 on the file of District Munsif Court, Sholinghur, this
Second Appeal was preferred by defendants 2 to 4, 5, 7 to 9 as well as legal
heirs of 10th defendant.
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2. For the sake of convenience, the parties are denoted as per the
ranking in the suit.
3. Before the trial court, the plaintiff filed a suit for partition praying
to allot 1/3rd share in the entire suit properties. According to her, the suit
property belong to his father Manicka Naicker, who purchased the suit
properties by way of registered sale deeds dated 21.03.1955 and
01.05.1943. Those sale deeds were marked as Ex.A1 and Ex.A2 on the side
of plaintiff. Till his death, upto 1972, he possessed and enjoyed the
properties and thereafter, he died leaving behind two sons and one daughter
viz., Kishtappa Naicker, 1st defendant and one Thulasi Naicker and Rani,
plaintiff herein. The said Thulasi Naicker died in the year of 1992 leaving
behind the defendants 2 to 4. During the pendency of proceedings, the 1st
defendant Kishtappa Naicker died leaving behind defendants 7 to 10 as his
legal heirs. Before the trial court, on the side of plaintiff, she was examined
as P.W.1 and the documents Ex.A1 to Ex.A13 were marked. On the side of
defendants, D.W.1 to D.W.5 were examined and documents Ex.B1 to Ex.B9
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were marked. Before the trial court, both sons have contested the suit
stating that during the life time of Manicka Naicker, there was a oral
partition held in the family. Accordingly, each of the parties are entitled for
equal share in the suit properties. The plaintiff being a daughter, she has no
right in the suit properties, since because she got married long back. So
also, she was not in possession of the property. Therefore, the plea of ouster
of co-sharer was claimed. Considering that, the trial court framed four
issues and the foremost issue is whether the plaintiff is entitled for 1/3 rd
share in the suit properties, whether the oral partition is true and valid one
and whether the defendants have conferred their right as well as possession.
Before the trial court, the plaintiff proved her claim through title deeds
stand in the name of his father and established that it is his self-acquired
properties. On the other hand, the defendants have to prove the plea of
ouster of co-sharer nor they proved that they have right over the suit
properties, however, the possession claimed by the plaintiff was not
accepted and accordingly, the suit was partly decreed granting 1/3rd share in
respect of item Nos.1 and 4 of suit properties. Against which, the
defendants preferred an Appeal Suit in A.S.No. 13 of 2019, wherein the
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first appellate court also confirmed the findings of the trial court and held
that they have not proved the plea of oral partition as well as plea of ouster
of co-sharer. Accordingly, the appeal was dismissed. Challenging the said
findings, the contesting defendants have preferred this Second Appeal.
4. The learned counsel for appellants would submit that the courts
below failed to take note of the fact that the patta passbook stands in the
name of 1st defendant viz., Thulasi Naicker under Ex.B1. But, without
appreciating the documentary evidence adduced on the side of defendants,
the courts below erroneously granted 1/3rd share in favour of plaintiff, as
such is liable to be set aside.
5. Considering the facts and circumstances and on perusal of records,
it would clearly reveals that the suit properties are self-acquired properties
of father of plaintiff and 1st defendant. It is an undisputed fact that plaintiff
also produced title deeds of his father, which clearly proves that the suit
property is a self-acquired properties of plaintiff's father. Her father died
intestate leaving behind his sons and one daughter, who is plaintiff herein.
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It is an undisputed fact that there is no Will executed by father of plaintiff
during his life time. As the suit properties are self-acquired properties, in
which the plaintiff is entitled for 1/3rd share. On the other hand, the
defendants plead that a oral partition was held in the family and
accordingly, they are entitled for equal share in the suit properties, but it
was not proved. Moreover, they took the plea of adverse possession and the
same was also not proved. They have also took a specific plea that she has
got married long back and hence, she is not entitled for the relief as
claimed. Therefore, there is no proof on the side of defendants in respect of
oral partition as well as the plea of ouster of co-sharer. So, the courts below
rightly observed that the defendants not proved their claim, which needs no
interference of this court. Hence, I do not find any merit in this Second
Appeal as there is no question of law involved for consideration as claimed
by the appellants. Accordingly, this Second Appeal is dismissed as no
merit. Moreover, the learned counsel for appellant produced a plan before
this court, but the 1st respondent/plaintiff is not inclined to accept the said
proposal for the reason that there is no facility and no such road in the
property. However, as the 1st respondent/plaintiff is aged about 70 years
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old, she is entitled to initiate final decree proceedings. Hence, she is
directed to file a final decree application before the trial court within a
period of three months from the date of receipt of copy of this order and if
any deviation, it will be viewed seriously. No costs. Consequently, the
connected Civil Miscellaneous Petition is closed.
28.10.2024
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
Sub-Judge,
Arakkonam.
T.V.THAMILSELVI, J.
https://www.mhc.tn.gov.in/judis
rpp
28.10.2024
https://www.mhc.tn.gov.in/judis
