Madras High Court
J. Raman vs Mrs.Vimala on 12 September, 2024
S.A.No.247 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2024
CORAM
THE HON'BLE MR. JUSTICE R.SAKTHIVEL
S.A.No.247 of 2018
and C.M.P.No.6259 of 2018
J. Raman ... Appellant/1st Respondent/1st Defendant
Vs.
1. Mrs.Vimala
2. B.Geetha ... Respondents No.1 & 2/Appellants/Plaintiffs
3. The Executive Officer,
Jagathala Panchayat Board,
Jagathala, Coonoor Taluk,
in the District of Nilgris.
4. The Collector of Nilgris,
Udhagamandalam.
... Respondents No.3 & 4/Respondents No.2 & 3/Defendants No. 2 & 3
PRAYER: Second Appeal is filed under Section 100 of Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
30.01.2018 passed in A.S.No.57 of 2017 by the Sub Court, Coonoor
reversing the Judgment and Decree dated 24.07.2017 passed in O.S.No.8
of 2015 by the District Munsiff Court at Coonoor.
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1/20
S.A.No.247 of 2018
For Appellant : Mr.R.Subramanian
For R1 & R2 : Mr.L.Mouli
For R3 : Mr.M.Elumalai
For R4 : Mrs.R.Anitha
Special Government Pleader
JUDGMENT
This Second Appeal is directed against the Judgment and Decree
dated January 30, 2018 made by the Subordinate Judge, Coonoor' [First
Appellate Court' for short] in A.S.No.57 of 2017, reversing the Judgment
and Decree dated July 24, 2017 made by the District Munsiff, Coonoor'
['Trial Court' for short] in O.S.No.8 of 2015.
2. The appellant herein is the 1st defendant, while the respondents 1
& 2 herein are the plaintiffs 1 & 2 and the respondents 3 & 4 herein are
the defendants 2 & 3 in O.S.No.8 of 2015 respectively. For the sake of
convenience, the parties are hereinafter referred to according to their
litigative status in the Original Suit.
Case of the plaintiffs in brief:
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3. The first plaintiff is the mother of the second plaintiff. The first
plaintiff's husband – J. Bhojan and the first defendant are brothers, their
father being Jevana Gowder. The suit property is a house property
bearing Door No.1/72 situate in Survey No.622/14 of Bettatty Revenue
Village. As per the family oral partition held in 1980, the suit property
was allotted to the first plaintiff's husband – J. Bhojan. The marriage
between J. Bhojan and the first plaintiff was solemnised in September
1988. The 2nd plaintiff was born on August 2, 1993. After the said oral
partition, J. Bhojan was in possession and enjoyment of the suit property
by paying house tax.
3.1. Bhojan passed away on July 7, 2000 leaving behind the
plaintiffs as his only legal heirs to succeed the suit property. After the
demise of Bhojan, the plaintiffs were residing in the suit property for
some time and thereafter, they shifted to the first plaintiff's maternal
house giving permissive possession of the suit property to the first
defendant with a condition that the 1st defendant shall pay house tax
regularly in the name of Bhojan. However, the first defendant, being a
member of the Jaganthala Panchayat Board, with an ulterior motive to
defeat and defraud the plaintiff's rights over the suit property, used his
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influence to forge a letter in Bhojan's name and changed the House Tax
Assessment Records in his own name.
3.2. On January 15, 2012, the first defendant refused to hand over
the vacant possession of the suit property upon demand by the 1st
plaintiff. Thereafter, the 1st plaintiff learnt about the fraudulent mutation
in House Tax Assessment records. Hence, the Suit for Declaration of
Title, Recovery of Possession and for directing the second and third
defendants to transfer the House Tax Assessment Records in the name of
plaintiff.
Case of the 1st defendant in brief:
4. According to the first defendant, he acquired right and title over
the suit property by virtue of inheritance and succession followed by an
inter se oral partition held in the year 1974. His name has been mutated in
the revenue records as early as 1999. Since then, he has been in exclusive
possession and enjoyment of the same. Hence, the question of permissive
possession as claimed by the plaintiffs does not arise at all. Patta also
confirms his possession and enjoyment of the suit property. First
plaintiff's husband – Bhojan, himself has given a No Objection Letter
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dated January 8, 1997 with respect to mutating the House Tax
Assessment records in the name of first defendant. Accordingly, the first
defendant being the absolute owner of the suit property, has been paying
House Tax without default. The plaintiffs' suit has no cause of action, is
barred by limitation and liable to be dismissed.
Case of the 2nd and 3rd defendants in brief:
5. The second defendant filed a written statement and the same was
adopted by the third defendant. It has been stated that the plaintiffs and
the first defendant have personal dispute and rival claims upon the suit
property, hence, the 2nd and 3rd defendants are neither admitting nor
refuting the plaint allegations; that the first defendant vide letter dated
January 27, 1999 requested the Executive Authority of Jagathala Town
Panchayat for mutation of House Tax Assessment Records in his name
along with a No Objection Letter dated January 8, 1997 purportedly
written by J.Bhojan; that the first defendant also enclosed a 'muchalika'
dated January 24, 1999 issued by the Village Headman and other
Panchayatdars of Bettatty Village vouching that the first defendant has
been in actual possession and enjoyment of the suit property for more
than 2.5 decades and has renovated the building at his expenses. Further
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that, the house building had been constructed on a Village Natham Land
and that no title document exist with respect to the building for the
relevant period. Further that, only after scrutinising the documents,
holding field inspection and enquiry, the executive authority passed an
order vide its proceedings Po.Ma.Pa.6/99 dated February 4, 1999 thereby
transferring the assessment records of the suit property in the name of the
first defendant; that there is no infirmity with the said proceedings; that,
however, the 2nd and 3rd defendants are ready to abide the Order of the
Court.
Trial Court and First Appellate Court
6. Based on these pleadings, the Trial Court framed the following
issues:
“1. Whether the plaintiffs are entitled for the relief of
declaration as prayed for?
2. Whether the plaintiffs are entitled for the
directions against defendant No.1 as prayed for?
3. Whether the plaintiff entitled for the Mandatory
Injunction as prayed for?
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4. To what relief parties entitled?”
7. At trial, On the side of the plaintiffs, 1st plaintiff was examined
as P.W.1 and Ex-A.1 to Ex-A.15 were marked. On the side of the 1st
defendant, the 1st defendant was examined as D.W.1 and Ex-B.1 to Ex-
B.6 were marked. On the side of the 2nd and 3rd defendants, neither any
documents were marked nor any witnesses were examined.
8. Upon hearing either side and considering the materials available
on record, the Trial Court held that the plaintiffs have not proved the Oral
Partition alleged by them nor their title over the Suit Property and that
plaintiffs have also failed to prove that the first defendant is in permissive
possession of the suit property. Accordingly, the suit was dismissed.
9. Upon dismissal, the plaintiff preferred an appeal before the First
Appellate Court. The First Appellate Court held that Ex-B.1 and Ex-B.2 –
Photocopies of the alleged Letter written by Bhojan and Muchalika are
inadmissible in law; that the Trial Court failed to consider the fact that
until 1998, the House Tax Assessment records stood in the name of
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Bhojan; that the Oral Partition alleged by the first defendant is not proved
by him; that the Trial Court failed to consider the plaintiff side
documents. Accordingly, the Suit was decreed as prayed for. The
aggrieved first defendant has filed this Second Appeal.
Substantial Question of Law:
10. This Second Appeal was admitted on the following substantial
questions of law on December 7, 2023:
“Whether the findings of the First Appellate Court
that respondents/plaintiffs proved oral partition is vitiated
by perversity?”
Arguments:
11. Mr.R.Subramanian, learned Counsel for the appellant / first
defendant has submitted that First Appellate Court has not appreciated the
oral and documentary evidence, especially Ex-B.1 - Letter and Ex-B.2 –
Muchalika, in the right perspective. The plaintiffs failed to establish that
the Suit Property was allotted to Bhojan in the Oral Partition alleged by
them. In such a scenario, the First Appellate Court ought not to have
decreed the suit as prayed for. Accordingly, he prayed to allow the
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Second Appeal and dismiss the Suit.
11.1. As an alternate argument, he has submitted that, even while
assuming that the 1st defendant has failed to establish the Oral Partition
alleged by him, the first defendant and the first plaintiff's husband –
Bhojan are entitled to equal share in the Suit Property after the demise of
Jevana Gowder, as per Section 8 of the Hindu Succession Act, 1956, as
the plaintiffs failed to establish the Oral Partition alleged by them. He
made an alternate prayer to pass a preliminary decree to that extent.
12. Per contra, Mr.L.Mouli, learned Counsel for the respondent 1
and 2 / plaintiffs, has submitted that Ex-A.4 to Ex-A.11 documents prove
the Oral Partition and the pursuant plaintiffs' possession and enjoyment of
the Suit Property. Exs.B1 and B2 are inadmissible documents created for
the purpose of defeating and defrauding the rights of the first plaintiff
who is a widow. He further submitted that, the First Appellate Court,
after considering the entire facts and circumstances as well as the
evidence, allowed the appeal and decreed the Suit as prayed for. There is
no perversity in the Judgment and Decree of the First Appellate Court.
Accordingly, he prayed to dismiss the Second Appeal and confirm the
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First Appellate Court's Judgment and Decree.
13. Mrs.R.Anitha, learned Special Government Pleader for the
Respondent No.4 has submitted that the plaintiffs and the first defendant
have personal dispute and rival claims upon the Suit Property. The third
respondent / Executive Officer issued the proceedings dated February 4,
1999 in Po.Ma.Pa.6/99 only after due enquiry and full inspection as per
the procedures. Hence, there is no infirmity with the proceedings issued
by the third respondent. She has further submitted that, the 4th respondent
is ready to obey the Order of this Court.
Discussion:
14. This Court has considered the submissions made on either side
and perused the materials available on record.
15. As alternative argument, the learned counsel for the appellant /
first defendant has submitted that, the plaintiffs and the first defendant are
co-owners of the Suit Property. Plaintiffs are collectively entitled to 1/2
share while the first defendant is entitled to 1/2 share. Since the Original
Suit is interalia for the relief of declaration of title, with a view to avoid
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multiplicity of proceedings, he alternatively prayed to pass preliminary
decree accordingly.
16. This Court has perused the deposition of D.W.1. Cross
examination of D.W.1 reads as follows:-
“vd; je;ij brtdh ft[lh; vd;gtUf;F 6
Mz; thupRfs; Mthh;fs; mth;fSs; ehd;jhd;
K:j;j kfd; vd;why; rhpjhd;/// v';fSf;Fs;
tha;K:ykhd ghfg;gphptpid vg;nghJ
Vw;gl;lJ vd;why; vd; je;ij ,we;jgpwF
tha;K:ykhd ghfg;gphptpid Vw;gl;lJ/ vd;
je;ij 1981?k; Mz;L ,we;jhh;/// nkw;go
tha;K:ykhd ghfg;gpuptpid ahh; ahh;
Kd;dpiyapy; Vw;gl;lJ vd;why; vd;
rnfhjuh;fSf;F ,ilapy; kl;Lk;jhd; Vw;gl;lJ/
ehd; nkw;Twpa K:ykhd ghfg;gpuptpidapd;go
ahh; ahUf;F ve;j brhj;J xJf;fg;gl;lJ
vd;why; v';fs; 6 rnfhjuh;fSf;Fs; brhj;Jf;fs;
xJf;fg;gl;ld/ Mdhy; ahh; ahUf;F
vd;bdd;d brhj;Jf;fs; xJf;fg;gl;lJ vd;w
tpguk; epidtpy; ,y;iy////“
16.1 A perusal of D.W.1, would show that, Jevana Gowder died
leaving six sons as his legal heirs. They are all necessary parties to the
Suit, and hence, ought to have been impleaded, but, they have not been
impleaded. In such a scenario, this Court cannot pass a preliminary
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decree as alternatively prayed for by the learned Counsel for the 1st
defendant, for the reason that the Suit is bad for non-joinder of necessary
parties and to be dismissed. [vide T. Panchapakesan (died) and others
Vs. Peria Thambi Naicker (died) and others, reported in AIR 1973
Madras 133 and A. Ramachandra Pillai V. Valliammal (died),
reported in (1987) 100 LW 486].
17. Admittedly, the Suit Property is a House Property situated in
Survey No.622/14. The Suit Property was originally owned by Jevana
Gowder, who is none other than the father of the first defendant and
father-in-law of the first plaintiff. Admittedly, Jevana Gowder passed
away in the year 1981. On perusal of the records, it is learnt that, Ex-A.4
- House Tax Receipt for the year 1980 stands in the name of Jevana
Gowder. Ex-A.5 to Ex-A.11 – House Tax Receipts stands in the name of
J.Bhojan. Ex-A.5 to Ex-A.11 – House Tax Receipts, would reveal the fact
that Bhojan had been paying the House Tax from 1981 to 1998. Mere
mutation in Revenue Records and Payment of House Tax are not
sufficient to prove the plea of Oral Partition. In this regard, it is apposite
to cite the Judgment of this Court in P. Kaliappa Gounder and others
Vs. Muthuswami Mudaliar, reported in 1985 SCC OnLine Mad 89 :
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(1985) 98 LW 773 : AIR 1987 Mad 24, wherein this Court explained
what amounts to partition. Relevant extract runs thus:
“7. Before we do the analysis of factual materials, we
would like to recapitulate the concept of 'partition' of a joint
family. The joint ownership of a thing is the right of two or
more persons to possess and use it to the exclusion of
others; and the thing, with regard to which there is the joint
ownership, is called 'the joint property'. In this joint
property, the joint owners do not own anything in specie
and every joint owner has got right, title and interest over
every piece and parcel of the joint property, subject to the
qualification that the quantum of his share in the whole
property stands defined in theory and not on ground.
Though joint owners may be content with owning lands in
common, yet subsequently one joint owner or some joint
owners may conceive the idea of owning the property
referable to his or their share for himself or for themselves
to the exclusion of the other or the others. This is the reason
which motivates the move to get joint property partitioned.
The legal term 'partition' is applied to the division of lands
or properties belonging to joint owners and the allotments
amongst them of the parts referable to their shares so as to
put an end to community ownership or joint ownership.
Mayne says:
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“In England ownership as a rule is single, independent and
unrestricted. In India on the contrary, joint ownership is the
rule and will be presumed to exist until the contrary is
proved.”
While individual property appears to be the rule in the West,
corporate property appears to be the rule in the East.
Though passage of time and change of notions have shaken
up this concept both in theory and in practice, yet, in our
country and in particular in rural areas, joint ownership is
allowed to persist by sufferance of custom and convenience
until the bone of contention crops on.
8. Partition is the intentional severance of the joint
ownership by an unequivocal expression of an intention to
bring out severance in the eye of law and further
implementing it by actual division by metes and bounds.
What was held in common as a single property gets
converted into a holding in severalty and in specie. Joint
ownership turns into ownership in severalty and in specie. It
is true that 'partition' is not a transfer. But there must be the
element of conversion as the joint ownership into ownership
in severalty and in specie. Therefore, the essence of
partition is that the joint ownership is put an end to and the
joint owners come to hold the property in severalty and each
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in his own individual right. In this country, it is common
that not only coparceners of a joint Hindu family but also
individuals join or continue together to own property in
common. If this common ownership is to be put an end to
not only in theory but also in practice, there must be
primarily severance of the joint ownership in the eye of law,
followed up by actual physical division. We make it clear
that in the present case, we are not concerned with the
concept of a bare unequivocal expression of an intention to
separate to bring about a division in status in a joint Hindu
family. It is not unusual for parties holding properties
jointly or in common to have separate enjoyment of portions
for the sake of sheer convenience. But such separate
enjoyment of convenience cannot be equated to partition in
the eye of law and in fact, so as to say that the joint
ownership has been put an end to and in its place ownership
in severalty or in specie has come into existence. Separate
enjoyment for the sake of convenience is one thing and
partition in the eye of law is another. The latter carried with
it the legal incidents of mutating the joint ownership. The
latter has to pass through and satisfy a more rigorous test in
law and on facts.”
18. It is settled law that the burden of proving the plea of Oral
Partition falls on the person who brings it up. In such a scenario, after the
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demise of Jevana Gowder, the 1st plaintiff's husband and the first
defendant along with the other legal heirs would have been co-owners
and post the demise of first plaintiff's husband, the plaintiffs would have
become co-owners in the place of J.Bhojan. All the co-owners are
deemed to be in joint possession and enjoyment of the Suit Property
unless it is specifically pleaded and proved that one co-owner has been
expelled from the joint possession. Mere House Tax Receipts standing in
the name of one co-owner, does not confer exclusive title to that co-
owner excluding the other co-owners.
19. In this case, the first defendant, very much relied on Ex-B.1 -
Letter allegedly executed by Bhojan in favour of him. Ex-B.1 is the
photocopy and its' original has not been marked. A bare reading of Ex-
B.1 would show that Bhojan has given consent to effect name transfer in
the House Tax Assessment Records in favour of the first defendant. That
document alone, assuming that it is admissible as evidence in law, does
not confer title to the first defendant. A title over immovable property
worth more than Rs.100/- can be extinguished only by way of a registered
instrument.
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20. Hence, the findings of the Trial Court that the plaintiffs have
not proved that the first defendant is in permissive possession of the Suit
Property, is incorrect. The findings of the First Appellate Court that, Ex-
A.4 to Ex-A.11 prove the Oral Partition alleged by the plaintiff and the
title of the plaintiff, is also incorrect. They both are liable to be interfered
with. Accordingly, the substantial question of law is answered in favour
of the appellants.
21. In this case, the plaintiffs miserably failed to establish their
case of oral partition. The first defendant also failed to establish his case.
Further, the Suit is bad of non-joinder of necessary parties. Hence, the
First Appellate Court has erred in allowing the appeal and decreeing the
suit as prayed for. Hence, this Court is inclined to allow the second
appeal.
22. Before parting, since the plaintiffs, first defendant and other
legal heirs of Bhojan are entitled to share in the Suit Property, it is made
clear that this judgment shall not be a bar for any claim for partition over
the Suit Property by the legal heirs including the plaintiffs and the first
defendant.
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23. Resultantly, the Second Appeal is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
12.09.2024
raja
Index : yes/no
Internet : yes/no
Speaking Order / Non-Speaking Order
To
1. The Sub Court, Coonoor
2. The District Munsif Court, Coonoor.
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R.SAKTHIVEL, J.
raja
https://www.mhc.tn.gov.in/judis
12.09.2024
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