Madras High Court
T.Rajmohan vs T.Jayaraman on 6 September, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.(MD) No.38 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.09.2024
CORAM
THE HON'BLE MR.JUSTICE P.VELMURUGAN
and
THE HON'BLE MR.JUSTICE JUSTICE K.K.RAMAKRISHNAN
A.S.(MD) No.38 of 2014
T.Rajmohan
... Appellant/Plaintiff
Vs.
T.Jayaraman
... Respondent/Defendant
Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, to set
aside the Judgment and Decree dated 15.03.2013 passed in O.S.No.21 of
2007 on the file of the II Additional District Court, Tiruchirappali and
pass a preliminary Decree in O.S.No.21 of 2007 as prayed for.
For Appellant : Mr.K.S.Sankhar Murali
For Respondent : M/s J.Maria Roseline
1/29
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A.S.(MD) No.38 of 2014
JUDGMENT
P.VELMURUGAN, J.
The plaintiff is the appellant in the appeal. The appellant filed a
suit for partition and separate possession of half share in the suit
properties. The suit was dismissed. Aggrieved against the same, he has
filed the present appeal.
2. The case of the appellant/plaintiff as set out in the plaint before
the Trial Court is as follows:-
The appellant and the respondent are the brothers and owners of the
suit properties. The suit properties originally belonged to one Ammani
Ammal, who obtained title through settlement deed, dated 24.10.1972 and
the said Ammani Ammal constructed a Cinema Theatre and while she was
in a sound and disposing state of mind, executed her last Will in favour of
the appellant and the respondent on 03.01.1975. Thereafter, the said
Ammani Ammal died on 19.03.1992. After her demise, her Will came
into force. Thereafter, the appellant and the respondent were managing
the property jointly and for their convenience “C” Form licence under the
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Tamil Nadu Cinema Regulations Act was obtained in favour of the
appellant's wife and the respondent's son Nandhakumar. The appellant
and the respondent have already entered into a partnership deed with their
respective family members. The said Partnership Firm was not registered
and the suit property was not at all transferred as the assets of the said
Partnership Firm. The said Partnership Firm was allowed to continue
without infringing the rights of the appellant in the suit property. The
appellant and his family members have already sent representations and
notice to the respondent and the family members of the respondent and
the District Collector and the Commercial Tax Officer, informing them
their intention to dissolve the Firm and their objections to the renewal of
the “C” Form licence. The appellant has also reserved his rights to file
the suit against the members of the respondent's family for rendition of
accounts of the dissolved Partnership Firm separately. Now, the
respondent is attempting to lease out the suit property and also attempting
to encumber the suit property. Since the appellant is in joint possession
and enjoyment of the suit property, he filed the suit for partition.
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3. The case of the respondent/defendant as set out in the written
statement before the Trial Court is as follows:-
(i) The vacant site of the suit property belonged to Ammani Ammal
and she acquired the title by virtue of a settlement deed dated 24.10.1972
and the said Ammani Ammal also executed a registered Will, dated
03.01.1975. The father of the respondent, Thangaraj Pillai was employee
of Southern Railways and he is the eldest son of Ammani Ammal. A
Touring Theatre was run at Vaiyampatti in the name and style of M/s Ram
Mohan Touring Talkies. Similarly, few other Touring Talkies were also
run at various places like Viralimalai, Puthanatham, Manapparai. All
those Touring Talkies were established and run only out of the investment
by Thangaraj Pillai. Since he was an employee of Southern Railways, the
licences were obtained in the name of Ammani Ammal and
Rathinathammal. Since the said Thangaraj Pillai wanted to establish a
permanent Cinema Theatre, he decided to construct a pucca Cinema
Theatre over the suit property and run the business as a Partnership Firm.
A Partnership Firm was constituted in the name and style of M/s Theatre
Thangaraja on 11.06.1975. Thangaraj Pillai had constructed a Theatre out
of his own resources and borrowings. The Partnership Firm had availed
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loan from Tamil Nadu Film Development Corporation Ltd. The licence
was obtained in the name of the mother of the appellant and the
respondent. Thangaraj Pillai was looking after the management and
running of the business with effective assistance of the respondent. After
his retirement, the father of the appellant and the respondent devoted his
full time in the said business till his death. The vacant site of the property
alone belonged to Ammani Ammal and the superstructures existing
thereon belongs to the Partnership Firm. At the time of the death of the
father of the respondent in the year 1993, the respondent was working in
Aranthangi as Assistant Divisional Engineer. Since no one was to take
care of the business and the management, the Theatre was leased out to
one Nagaraj, who was running the Theatre for one year. Thereafter, it was
leased out to one Mohan. Since no one has come forward to run the
Theatre, the Theatre remained closed for some time. Thereafter, one
Gowri offered to run the Theatre on lease. Despite the expiry of lease
period, the said Gowri did not surrender possession. After several
mediations, she surrendered the possession after receiving a sum of Rs.
9,00,000/-. Thereafter, the respondent and his mother decided not to lease
out the property.
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(ii) The Partnership Firm was reconstituted on 03.10.2005. The
respondent and his wife paid a sum of Rs.49,351/- to the Corporation and
thereby, the entire loan liability was discharged. The respondent and his
wife had spent Rs.13,90,351/- to release all the liabilities and
encumbrance. The respondent also paid Rs.9,00,000/- to the tenant
Gowri for recovering possession of the premises. The appellant accepted
the liability to the tune of Rs.7,00,000/- only. Therefore, when the Firm
was reconstituted, the appellant and his family members agreed to
reimburse half of the amount incurred by the respondent and his wife.
The appellant and other partners of his family agreed to pay the aforesaid
amount of Rs.6,00,000/- with interest. The appellant also received Rs.
5,000/- every month periodically from the account of the Firm. The
appellant had insisted the respondent to make arrangement for selling the
Cinema Theatre and divide the sale proceeds amongst the family
members. It has been specifically mentioned in the Partnership deed that
in the event of any dispute, the partners should resort to their remedies
through Arbitration by invoking clause. The appellant created all kinds of
troubles and hardships for running the Theatre. The appellant has no
right to claim partition in respect of superstructures which were
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constructed by the Partnership Firm and it belongs to the Firm only. The
suit is bad for non-joinder of necessary parties. The respondent is always
ready and willing to settle the claim of the appellant in terms of money.
The suit for partition is not maintainable.
4. Based on the pleadings, the Trial Court has framed the following
issues:
(1) Whether the vacant site of the property alone
belonged to Ammani Ammal as alleged by the defendant?
(2) Whether the superstructures were constructed by
the Partnership Firm as alleged by the defendant?
(3) Whether the plaintiff is entitled for mesne profits?
(4) To what relief, the plaintiff is entitled to?
5. During trial, on the side of the appellant, the appellant was
examined as P.W.1 and 19 documents were marked as Exs.A1 to A19. On
the side of the respondent, the respondent was examined as D.W.1 and 18
documents were marked as Exs.B1 to B18.
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6. After trial, the Trial Court, on hearing the arguments on either
side, considering the pleadings and oral and documentary evidence,
dismissed the suit. Aggrieved by the Judgment and Decree, the appellant
has filed the present appeal.
7. The learned counsel for the appellant would submit that the suit
property was originally vacant site which belonged to one Ammani
Ammal, who is none other than the paternal grandmother of the appellant
and the respondent, who derived the property by way of a settlement
deed, dated 24.10.1972. Subsequently, her son constructed a Cinema
Theatre. While so, she was in sound and disposing state of mind, she
executed a Will, dated 03.01.1975 in favour of the appellant and the
respondent and she died on 19.03.1992. Thereafter, the appellant and the
respondent alone are entitled to the suit property, the appellant demanded
for partition and separate possession. Since the respondent denied, the
appellant filed the suit for partition. He would further submit that the
respondent himself has admitted in his written statement that though the
vacant site stands in the name of Ammani Ammal, the son of Ammani
Ammal and the father of the appellant and the respondent viz, Thangaraj
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Pillai, who was working in the Southern Railways, obtained licence in the
name of his mother Ammani Ammal and wife Rathinathammal and also
he decided to construct a pucca Cinema Theatre over the suit property and
run the business. The said Thangaraj Pillai had constructed the Theatre
out of his own resources and borrowings. The vacant site of the suit
property alone belonged to Ammani Ammal and hence, the
superstructures belonged to the Partnership Firm, is denied. However, the
respondent has not produced any material to show that the property
belongs to the Partnership Firm.
8. The learned counsel would further submit that even in the recital
of the Will executed by Ammani Ammal itself, it is stated that the site
belongs to her and she derived title from the settlement deed, dated
24.10.1972, in which, the superstructures were constructed by his son
Thangaraj and she has not spent any money for the same. After her
demise, both the land and superstructures would go to the appellant and
the respondent and both are entitled to half share in the suit property.
Except these two persons, no one is having any right in the suit property.
He would further submit that in recital of the reconstitution of the
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partnership deed, dated 03.10.2005, which is an unregistered Partnership
Firm, it is admitted that the vacant site belonged to Ammani Ammal.
Though it is stated in one place that out of the funds of the Partnership
Firm, the Theatre was constructed, and also stated about the letting out
the Theatre and also the payment made to the lessee, even in the recital, it
is stated that both the appellant and the respondent are having equal right
in that vacant site and also superstructures. Even the family members of
the appellant and the respondent are equally entitled to that. Therefore,
except the appellant and the respondent, no other persons are entitled to.
Even though the said Thangaraj Pillai got female legal heirs, they have
not claimed any right over the suit properties. Since the properties are
treated as a partnership property and the partnership deed also is
unregistered and the property was never thrown into hotchpot of the
Partnership Firm, the defence taken by the respondent is not acceptable.
Once, it is admitted that Ammani Ammal is the owner of the vacant site
and her son constructed the building out of his own sources, it became a
property of Ammani Ammal and under the Will, the appellant and the
respondent are entitled to. Therefore, the appellant is entitled to half
share in the suit property. Unfortunately, the Trial Court failed to
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consider the pleadings and also recitals in the Will and the partnership
deed and also the oral evidence, dismissed the suit. Therefore, the
appellant is before this Court. In support of his contention, the learned
counsel has produced the following Judgments:
(i) Arjun Kanoji Tankar vs. Santaram Kanoji
Tankar reported in (1969)3 SCC 555;
(ii) M/s Gudiyattam Lungi Company vs.
G.Vasantha & others reported in 2021(2) LW 717; and
(iii) Bachhaj Nahar vs. Nilima Mandal & another
reported in 2009(2) LW 485 (SC).
9. The learned counsel for the respondent would submit that once
the property of the individual was thrown into the hotchpot of the
Partnership Firm, it is property of the Partnership Firm and except the
Partnership Firm, no one has got any right in the suit property. Since it is
the property of the Partnership Firm, the appellant, at the best, can file the
suit for dissolution of Partnership Firm and then, whatever the rights and
liabilities, he has to bear the same. Even in the previous occasion, on the
date of death of the father of the appellant and the respondent, the Theatre
was let out to the third party, namely, one Gowri. Therefore, there is a
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dispute. In order to settle her, the respondent and his wife spent huge
money and settled the lessee and took the possession and they have
decided not to let in the Theatre and therefore, the appellant also agreed
to share the said expenses and he had not repaid the same. The property
belongs to the Partnership Firm. Hence, the suit for partition is not
maintainable. The learned counsel would further submit that even in the
partnership deed, it is mentioned that if any dispute arises, it has to be
referred to the Arbitrator and the matter has to be settled through the
Arbitration proceedings. Therefore, the suit itself is not maintainable.
The Trial Court rightly appreciated the oral and documentary evidence
and dismissed the suit. There is no merit in the appeal. In support of her
contention, the learned counsel has produced the following Judgements:
(i) Sunil vs. Commissioner of Income Tax reported
in AIR 1986 SC 368; and
(ii) Ravi Prakash Goel vs. Chandra Prakash
Goel & another reported in CDJ 2007 SC 346.
10. Heard both sides and perused materials available on records.
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11. The specific case of the appellant is that the suit property
originally belonged to his paternal grandmother, one Ammani Ammal.
Though she obtained the said property under registered settlement deed,
dated 24.10.1972, and enjoyed as a vacant site and subsequently, the
Theatre building was constructed out of the fund of the father of the
appellant and the respondent, who is none other than the son of the said
Ammani Ammal. During the life time of Ammani Ammal, she
bequeathed the suit property to the appellant and the respondent. As per
the Will, both are entitled to half share. It is only an individual property
of Ammani Ammal and the property stands in the name of the female,
though it was constructed by the father, it is the property of Ammani
Ammal. Therefore, as per the Will, the appellant and the respondent are
entitled to half share. Though the respondent has taken the defence that
the suit property is the Partnership Firm, there is no material and the
respondent himself admitted that the suit property was the vacant site,
which belonged to Ammani Ammal and the construction was made by
their father Thangaraj Pillai out of his own source and borrowings.
There is no material produced to show that the property belongs to the
Partnership Firm and the construction was made out of the fund of the
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Partnership Firm and the suit property was thrown into the hotchpot of
the Partnership Firm.
12. The specific case of the respondent is that though the vacant
site belonged to Ammani Ammal, the said Ammani Ammal executed a
Will, however, the suit property was thrown into hotchpot of the
Partnership Firm. When the property was mortgaged with the Finance
Company, they settled the amount through the Partnership Firm.
Therefore, it is the property of the Partnership Firm. Subsequently, the
Partnership Firm was reconstituted after the death of Ammani Ammal and
the father of the appellant and the respondent, Thangaraj Pillai. As per
the partnership deed, the suit property belongs to the Partnership Firm
and therefore, as such, the suit framed for partition is not maintainable.
13. Since the first Appellate Court is the fact finding Court, this
Court has to re-appreciate the entire evidence and give independent
finding, for which, this Court has taken the following points for
determination:
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(1) Whether the suit property is the individual
property or the Partnership Firm?
(2) Whether the appellant is entitled to get a
preliminary decree as prayed for?
(3) Whether the finding of the Trial Court is
perverse?
Point No.1:
14. Insofar as Point No.1 is concerned, it is the case of the appellant
that the vacant site of the suit property originally belonged to the paternal
grandmother of the appellant and the respondent one Ammani Ammal,
who got the property by virtue of the settlement deed, dated 24.10.1972.
During her life time, while she was in sound and disposing state of mind,
she executed Will in favour of the appellant and the respondent under
registered Will, dated 03.01.1975. During her life time, the said Ammani
Ammal had constructed a Touring Talkies in the said vacant site. After
the death of the said Ammani Ammal, on 19.03.1992, the said Will came
into force. Therefore, the appellant is entitled to half share.
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15. According to the respondent, though the vacant site belonged to
Ammani Ammal, subsequently, it becomes the property of the
Partnership Firm and the building was constructed out of the source of the
Partnership Firm and the suit property was thrown into hotchpot of the
Partnership Firm. Therefore, the property belongs to the Partnership
Firm. Hence, the suit for partition is not maintainable.
16. In order to substantiate the case of the appellant before the Trial
Court, the appellant was examined as P.W.1 and marked 19 documents as
Exs.A1 to A19. The appellant has reiterated the averments made in the
plaint in his proof affidavit, which was filed for the chief examination. A
copy of the settlement deed, dated 24.10.1972 executed by
Rathinathammal in favour of Ammani Ammal was marked as Ex.A1.
From Ex.A1, it is seen that the said Ammani Ammal got the vacant site by
way of the registered settlement deed, dated 24.10.1972, and the
respondent has not denied the same. A copy of the Will, dated
03.01.1975, executed by Ammani Ammal in favour of the appellant and
the respondent was marked as Ex.A2, which shows that Ammani Ammal
bequeathed the suit property to the appellant and the respondent by way
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of the Will during her life time. Ammani Ammal died on 19.03.1992. A
copy of the death certificate was also marked as Ex.A3, which clearly
shows that Ammani Ammal is the owner of the vacant site of the suit
property and she is the Testator and the appellant and the respondent are
the beneficiaries.
17. The respondent has also admitted that Ammani Ammal is the
owner of the vacant site and she has also executed registered Will. The
only case of the respondent is that the property became a Partnership Firm
and once, it becomes property of partnership, the suit for partition based
on the Will is not maintainable. Once Exs.A1, A2 and A3 are not denied
by the respondent and even Ex.A2, which is not disputed by the
respondent and admitted that Ammani Ammal has stated in the Will that
the property was obtained under the registered settlement deed, dated
24.10.1972. The building was constructed by Thangaraj Pillai and she
has stated that she has not spent any money, however, during the life time
of Thangaraj Pillai, he has not claimed any right in the building.
Therefore, she bequeathed her property to the appellant and the
respondent being the male legal heirs of the said Thangaraj Pillai. From
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the recitals, it is further seen that except the appellant and the respondent,
no other legal heirs of the said Thangaraj Pillai are entitled to. Since this
Ex.A2 was not denied or disputed by the respondent, he cannot let
evidence contra to recitals of the Will. Even otherwise, in the written
statement filed by the respondent, the respondent himself admitted that
Ammani Ammal derived the property through the settlement deed, dated
24.10.1972. Further, the respondent has also admitted in the written
statement that the father of the appellant and the respondent was working
in Southern Railways and he is the eldest son of Ammani Ammal.
Further, from the recitals in the Will executed by Ammani Ammal, it is
seen that Touring Talkies were run at Vaiyampatti in the name and style of
Ram Mohan Touring Talkies. Similarly, four more Touring Talkies were
run at various places, like, Viralimaial, Puthanatham, Manapparai, etc.
All the Touring Talkies were established and run only out of the
investment by Thangaraj Pillai. Since he was an employee of the
Southern Railways, licences were obtained in the name of Ammani
Ammal and Rathinathammal. Thangaraj Pillai was carrying on these
business since 1964 onwards. Further, he has also admitted in the written
statement that Thangaraj Pillai decided to construct a permanent Cinema
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Theatre and he has also constructed a pucca Cinema Theatre over the suit
property and run the business of the Partnership Firm. He has also
admitted that Thangaraj Pillai has constructed a Theatre out of his own
sources and borrowings. After his retirement, Thangaraj Pillai devoted
his full time in the said business till his death. However, the respondent
has not stated in his written statement that out of the funds of the
Partnership Firm or the profits raised in the name of the Partnership Firm,
his father constructed the Theatre. Further, there is no material to show
that the original owner Ammani Ammal thrown the suit property into
hotchpot of the Partnership Firm.
18. Further, the respondent has filed another suit for recovery of the
amount which was said to have paid to one Gowri for getting the
possession of the Theatre from her, who was lessee/tenant. Even in that
plaint, he has averred that the first plaintiff's father, viz., the respondent's
father Thangaraj Pillai had invested a huge amount out of his own
sources. The Theatre was constructed out of the borrowings as well as
the loan availed from the Tamil Nadu Films Development Corporation
Limited. Further, he has stated that in fact, the father of the appellant and
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the respondent Thangaraj Pillai had invested a huge amount out of his
own sources. The licence was originally obtained in the name of Ammani
Ammal and after her demise, the licence was issued in the name of the
respondent's mother Rathinathammal. The appellant's and the
respondent's father Thangaraj Pillai alone was looking after the
management and business till his demise. After his demise, the Theatre
was let out to the third parties. In order to evict and get the person, they
spent money. Both the suits were tried jointly and also both the suits
were dismissed. The respondent has not filed any appeal against the said
dismissal of the other suit in O.S.No.176 of 2008. Even he has not filed
the suit against the Partnership Firm. If at all the Theatre belongs to the
Partnership Firm and if he spent any money from the profit of the
Partnership Firm or the properties of the Partnership Firm, he could have
filed the suit against the Partnership Firm for recovery of his money spent
for. Instead of filing suit against Partnership Firm, he has filed the suit
against the individual person. Therefore, the contention of the respondent
that the property of Ammani Ammal was thrown into hotchpot of the
Partnership Firm; the suit property has become the property of the
Partnership Firm and therefore, the suit is not maintainable, is not
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acceptable. Since Exs.A1 to A3 are not denied and from the oral and
documentary evidence, while re-appreciating the evidence, this Court
finds that Ammani Ammal got the property by way of registered
settlement deed under Ex.A1 and subsequently, his son Thangaraj Pillai
had constructed the building in the said property stood in the name of his
mother out of his own source. During the life time of Thangaraj, he has
not stated that it is the property of the Partnership Firm and also not
claimed any right in the property. Once the respondent himself admitted
that the vacant site belonged to Ammani Ammal, in which, her son
constructed the building out of his own source and Ex.A2, Will, which
was admitted by the respondent, shows that Ammani Ammal bequeathed
her property in favour of the appellant and the respondent, the appellant
has established his case that he is entitled to share as per the Will. When
the appellant has proved the initial burden, then the onus has been shifted
to the respondent. Therefore, it is for the respondent to discharge his onus
that the property is not an individual property and it is only a property of
Partnership Firm.
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19. Admittedly, the Partnership Firm is not registered one and even
according to the respondent, after death of his father, they let out the
building to the third party including one Gowri and for evicting them,
they also settled the amount. According to them, if it is Partnership
property, all the debts will bind the Partnership Firm and not the
individual and their liability to the extent of only their shares. But instead
of claiming that amount from the Partnership Firm, the respondent was
claiming from the individual. Since it is an unregistered document, the
respondent cannot claim as property of the Partnership Firm in the
absence of any specific proof. Admittedly, in this case, the respondent
has taken inconsistent pleadings and from the written statement and also
the averments made in the plaint in the other suit, though it is settled
proposition that any numbers of inconsistent defence can be taken but at
the same time, which should not contradict to each other. In this case,
one thing is clear and admitted by the parties that Ammani Ammal is the
original owner of the vacant site and the father Thangaraj Pillai
constructed the building and there is no material to prove that from the
fund and source of the Partnership Firm, it was constructed and
subsequently, the property was treated as Partnership property. In the
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reconstitution of the partnership deed, it is also admitted that the property
belonged to Ammani Ammal and the appellant and the respondent are
equally entitled to the share. Therefore, under these circumstances, Point
No.1 is answered accordingly in favour of the appellant.
Point Nos.2 and 3:
20. Once it is held that it is the property of the individual and the
appellant has proved his initial burden, this Court finds that the
respondent has not discharged his onus and established that it is the
property of the Partnership Firm and under these circumstances, the
appellant is entitled to get preliminary decree for his half share in the suit
property as sought for in the plaint.
21. As already stated, the claim of the appellant is that the property
belonged to the grandmother and she executed a registered Will and after
her death, the said Will came into force and after the death of the
grandmother Ammani Ammal and also their father Thangaraj, the
appellant has filed the suit. The respondent has not denied the fact. The
respondent has also admitted that the vacant site belonged to Ammani
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Ammal and also the superstructures were constructed by their father out
of his own source. Except an averment made in the written statement,
there is no proof to show that the suit property was thrown into the
hotchpot of the Partnership Firm and the property was treated as a
property of the Partnership Firm or the building was constructed out of
the source of the Partnership Firm. Even there is no material to show that
either Thangaraj or the wife of Thangaraj or even by Ammani Ammal
anywhere have stated that the superstructure was constructed from the
source of Partnership Firm. No document has been produced by the
respondent to show that the superstructure was constructed out of the
fund of the Partnership Firm. Admittedly, the Partnership Firm is also
not registered. It is admitted that it is the property of Ammani Ammal and
the superstructure was constructed by her son out of his own fund.
During his life time, the said Thangaraj Pillai has not claimed right in the
superstructure. During the life time of the said Thangaraj Pillai, Ammani
Ammal has executed a registered Will. Thangaraj Pillai was also aware
of that Will and in the said Will, it is not stated that it is the property of
the Partnership Firm or Thangaraj Pillai constructed the building out of
funds of the Partnership Firm or the property is treated as the property of
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the Partnership Firm. Once the respondent has admitted the Will or
otherwise, he has not disputed the Will and he has not challenged the Will
and recitals mentioned in the Will, he cannot take any contrary stand
against the recital in the Will. Therefore, from the facts and
circumstances of the case, the citations referred to by the learned counsel
appearing for the respondent are not applicable to the present case on
hand, in the absence of any material to show that the suit property is
treated as a partnership property.
22. It is settled proposition of law that under Section 14 of the
Partnership Act, 1932, in the absence of an agreement to the contrary, the
property exclusively belonging to a person, on his entering into the
partnership with others, does not become a property of the partnership,
merely because, it is used for the business of the said Partnership Firm.
Such property will become the property of the partnership only if there an
agreement, express or implied that the property was under the agreement
of the partnership, to be treated as property of the Partnership. The said
ratio was held in the decision in the case of Arm Group Enterprises Ltd
vs Waldorf Restaurant & Ors reported in 2003 (6) SCC 423.
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23. The burden of proof by the plaintiff in the civil suit is not as
that of the prosecution in the criminal case to prove beyond all the
reasonable doubt, if the plaintiff is able to prove the case with
preponderance of probabilities then the plaintiff is entitled to get the relief
as sought for. The Trial Court failed to appreciate the pleadings and also
contradictory stand taken by the respondent. Though the respondent can
take any number of inconsistent pleadings, however, which cannot be
mutually contradictory to each other.
24. In this case, the case of the appellant is that the suit property is
an individual property of the appellant and the respondent and as per the
Will, he is entitled to half share. Though the respondent states that it is a
Partnership Firm, but Exs.A1 to A3 would clearly show otherwise. Then,
it is for the respondent to discharge the onus and to prove that it is the
Partnership property. Therefore, once it is established that originally, the
property was the individual property then a person, who claims that it
becomes a Partnership property or change the characters of the property,
has to prove. It is well settled proposition that once onus has been shifted
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to the respondent and he has not discharged his onus, the appellant is
entitled to get decree, whereas the Trial Court has failed to appreciate the
same. This Court being the appellate Court, while re-appreciating the
evidence, finds that the finding of the trial Court is perverse.
Accordingly, Point Nos.2 and 3 are answered in favour of the appellant.
25. In the result, this Appeal Suit is allowed. The appellant is
entitled to half share in the suit property and the preliminary decree is
passed to that extent. In respect of mesne profits, the appellant is at
liberty to workout the remedy under Order 20 Rule 12 of C.P.C.
Considering the facts and circumstances of the case and relationship of
the parties, there is no order as to costs.
[P.V., J.] [K.K.R.K., J.]
06.09.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes
skn
https://www.mhc.tn.gov.in/judis
To:
1.The II Additional District Judge, Tiruchirappalli.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN, J.
skn
06.09.2024
https://www.mhc.tn.gov.in/judis
