Madras High Court
Mahalingam vs Jayalakshmi on 6 September, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
A.S.No.687 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2024
CORAM
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
AND
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
A.S.No.687 of 2017
and
C.M.P.No.21923 of 2017
and
C.M.P.Nos.18988 & 18991 of 2018
Mahalingam,
S/o Rethinavelu ..Appellant
Vs.
1. Jayalakshmi,
D/o Rethinavelu
2. Kamalambal,
W/o Rethinavelu
3. Rajendran,
S/o Rethinavelu
4. Rajakumari,
D/o Rethinavelu
5. Valarmathi,
D/o Rethinavelu
6. Chozharajan,
S/o Rathinavelu ..Respondents
https://www.mhc.tn.gov.in/judis
Page 1/9
A.S.No.687 of 2017
Prayer: Appeal filed under Section 96 r/w Order 41 Rule 1 of CPC
against the judgment and decree of the District Court, Nagapattinam,
dated 28.07.2017 made in O.S.No.25 of 2013.
For Appellant : Mr.Arun Babu
For Respondents : Ms.A.Devagi
for R1
R2-No appearance
Mr.M.Arun for R3 to R6
JUDGMENT
(The order of the Court was made by Mrs.J.Nisha Banu,J.)
The above appeal has been filed challenging the judgment and
decree dated 28.07.2017 made in O.S.No.25 of 2013 passed by the
learned District Court, Nagapattinam, decreeing the suit for 1/7th share
in respect of schedule 'A' property and dismissing the suit with regard to
the properties in schedule 'B' and schedule 'C.
2. The suit has been filed by the 1st respondent herein for partition
against her mother, brothers and sisters. The appellant herein is the 2nd
defendant in the suit.
3. The averments in the plaint is that the husband of the 1st
defendant, Rethinavelu who is the father of the plaintiff and defendants
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2 to 6, died on 27.08.1988. Some items of the suit properties are joint
family properties and the rest are self acquired properties of Rethinavelu,
which were purchased by utilizing the income from the joint family
properties. The schedule 'A' properties were obtained by Rethinavelu by
way of Partition Deed dated 14.10.1961 that took place between
Rethinavelu and his brother and out of the income from the said
properties and from own earnings, Rethinavelu purchased other items of
schedule 'A' from third parties by way of two sale deeds dated
24.11.1965 and 17.03.1983. The items of the schedule 'A' properties are
the self acquired properties by Rethinavelu. The items in Schedule 'C'
properties belong to Santhammal Trust, a charity trust run by the family
members. The items in Schedule 'B' properties are poramboke lands. In
the said B schedule properties, the appellant/2nd defendant had
constructed a multi storeyed complex and is running a photo studio. In
the said properties also, the plaintiff is entitled to 1/7th share. There was
an old house in New Survey No.77/5 of an extent of 21 cents in the
schedule 'B' properties which was demolished and a complex was
constructed. All the properties are under the control of the appellant/ 2nd
defendant and he is enjoying the same on his free will though the
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plaintiff requested him to give her share. The 2nd defendant was evading
partition stating some reason or the other and was not taking any steps
for partition. Hence, the suit.
4. The 2nd defendant has filed a written statement denying the
averments stated in the plaint. He would state that the items in Schedule
'C' properties belong to Santhammal Trust, a charity trust run by the
family members and no one can claim share in the same. In the 'B'
schedule property, the 2nd defendant had constructed the building from
his own earnings and enjoying the same. The averment made in the plaint
that father had constructed the building and enjoying the income out of
the same is not correct. After the death of their father, the 4th and 5th
defendants got married and the same was arranged by the 2nd defendant
only. As per the Family Arrangement Deed dated 05.06.1986, their father
Rethinavelu had given shares to all the family members and all the
family members were enjoying the same. The plaintiff cannot claim the
property which is in possession and enjoyment of the 2 nd defendant
which was given to him by way of Family Arrangement Deed dated
dated 05.06.1986. Hence, prayed for dismissal of the suit.
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5. The trial court framed the following issues.
i) Whether the plaintiff is entitled for preliminary
decree of 1/7th share in the suit schedule properties?
ii) Whether the suit properties were partitioned as
per the Family Arrangement Deed dated 05.06.1986?
iii) Whether 'B' schedule property is a separate
property of the 2nd defendant?
iv) Whether 'C' schedule property is the property
belongs to the trust and not for partition?
v) To what other relief the plaintiff is entitled to?
6. Before the Trial Court, the plaintiff/1st respondent herein
examined two witnesses viz.,P.W.1 and P.W.2 and marked nineteen
documents viz., Exs.P1 to P19. The 2nd defendant examined himself as
RW1 and marked five documents viz., Exs.R1 to R5.
7. The trial Court, on examination of the pleadings and documents
on record, passed a preliminary decree for 1/7th share in respect of
schedule 'A' properties and dismissed the suit with regard to the
properties in schedules 'B' and 'C'. Aggrieved over the same, the
appellant has preferred the above appeal.
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8. Heard the learned counsel for the appellant and the learned
counsel appearing for 1st, 3rd to 6th respondents.
9. When the appeal is taken up for hearing, the learned counsel
for the appellant would state that the appellant has filed the appeal only
with regard to 'A' Schedule properties and now, the appellant agreed to
give share in respect of item Nos.1 to 7 in 'A' Schedule properties and
claimed the entire property in item No.8 of 'A' schedule property alone.
10. It is also brought to the notice of this court that the mother 2nd
respondent herein/1st defendant died on 29.05.2021 pending the appeal.
A copy of the death certificate of Kamalabal, 1st defendant is also
produced by the 1st respondent.
11. It is an admitted fact that the 'A' Schedule properties were
obtained by father, Rethinavel by way of Partition Deed that took place
on 14.10.1961 between him and his brother. The trial Court has also
given a finding in respect of issue No.1 that though the 2nd
defendant/appellant herein has categorically stated that their father
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Rethinavelu had made Family Arrangement Deed dated 05.06.1986 and
as per the said Family Arrangement deed, the 1st respondent
herein/plaintiff cannot claim the property which is in possession and
enjoyment of the appellant/2nd defendant, in an earlier suit in
O.S.No.158/2003 in respect of the same properties, the appellant had
stated that there was no partition of the schedule properties. Thus, the
trial court had come to the conclusion that as there was contradictory
statement made by the appellant/2 nd defendant, the contention of the
appellant/2nd defendant that there was Family Arrangement Deed dated
05.06.1986 and only based on the family arrangement, he is in
possession and enjoyment of 'A' schedule properties, cannot be
countenanced.
12. Further, the appellant has not let in any evidence with regard
to the document, Family Arrangement Deed dated 05.06.1986. Merely
based on the statement made by the appellant, the said document cannot
be accepted unless it is substantially proved by proper evidence. Further,
the 1st respondent/plaintiff has also denied the said document. Therefore,
the burden of proof lies on the part of the appellant and the same has not
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been done by him. No independent witness was examined to prove the
said document. Therefore, we are not inclined to interfere with the
judgment and decree passed by the Trial Court as we do not find any
illegality or infirmity in the judgment of the Trial Court.
13. In the result, the Appeal is dismissed. Since the 2nd respondent/
1st defendant died during the pendency of the appeal, the judgment and
decree dated 28.07.2017 passed by the District Judge, Nagapattinam,
shall be modified to the extent that the 1st respondent/plaintiff is entitled
to 1/6th share instead of 1/7th share in 'A' Schedule properties. Except the
said modification, the judgment and decree dated 28.07.2017 passed by
the Trial Court is confirmed. No costs. Consequently, connected
miscellaneous petitions are closed.
(J.N.B,J.) (R.K.M., J.)
06.09.2024
Index : Yes / No
Internet : Yes
vsi
To
The District Court,
Nagapattinam.
https://www.mhc.tn.gov.in/judis
J. NISHA BANU, J.
and
R.KALAIMATHI,J.
vsi
06.09.2024
https://www.mhc.tn.gov.in/judis
