Madras High Court
Petchimuthu vs Ramu Ammal on 24 March, 2025
SA(MD)No.376 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 24/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.376 of 2004
1.Petchimuthu
2.Sudalai : Appellants/Appellants/
Defendants
Vs.
1.Ramu Ammal
2.Pitchaiammal
3.Alagumuthu : Respondents/Respondents/
Plaintiffs
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
of the Principal District Judge, Tuticorin, in AS No.74
of 2003, dated 23/03/2004 confirming the judgment and
decree of the District Munsif of Srivaikundam in OS No.40
of 2002, dated 22/01/2003.
For 1st Appellant : Mr.J.Ashok
For 2nd Appellant : Mr.M.Mohammed Asif
For 1st Respondent : Dismissed as default
For R2 and R3 : Mr.S.Siva Thilakar
J U D G M E N T
This Second Appeal is filed against the judgment and
decree of the Principal District Judge, Tuticorin, passed
in AS No.74 of 2003, dated 23/03/2004 confirming the
judgment and decree of the District Munsif, Srivaikundam
in OS No.40 of 2002, dated 22/01/2003.
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2.The plaint:- The suit property originally belongs
to one Subbiah Pillai @ Ayyapillai Thevar. The first
plaintiff is the wife. The plaintiffs 2 and 3 and the
defendants are the childrens. Subbiah Pillai @ Ayyapillai
Thevar died on 20/10/1999 intestate. The plaintiffs and
the defendants are the legal heirs. They inherited the
property and in possession as joint family. On
13/05/2000, the defendants tried to interfere into the
possession. The defendants have 1/5th share in the
property. So, the suit is laid for partition and separate
possession of the plaintiffs 3/5th share and for permanent
injunction, costs.
3.The statement filed by the second defendant
adopted by the first defendant:- It is denied that the
property originally belongs to Subbiah Thevar @
Ayyapillai Thevar. The suit is bad for partial partition,
since the house where the second defendant residing is
not included in the plaint. The plaint 1st item in the 4th
schedule situated in Survey No.170/2A/2 measuring about
0.36.0 Hectares belongs to the defendants by way of
purchase, in which the plaintiffs and others have no
right or interest. After the death of Subbiah Thevar @
Ayyapillai Thevar, there was a family arrangement in the
first week of November 1999. By that family arrangement,
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the first plaintiff agreed that she is not entitled any
share and she must be maintained by the defendants till
her life time. In so far as the second plaintiff is
concerned, even during the lift time of Subbaih Thevar @
Ayyapillai Thevar, she was provided with sufficient
sreedhana and married. So, she agreed that she is not
having any share. The third plaintiff converted to
Muslim, married a Muslim girl and living with her. He
also relinquished his share in the property. So, by that
family arrangement, the entire properties owned to the
Subbiah Thevar @ Ayyapillai Thavar belongs to the
defendants. Apart from that, other customary denials
were made.
4.Additional statement:-The particulars of amendment
and the suit property is not properly valued.
5.On the pleading of both parties, The trial court
framed the following issues:-
(1)Whether the plaintiffs are
entitled to 3/5th share in the suit
properties?
(2)Whether the plaintiffs are
entitled to permanent injunction?
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(3)Whether the 1st item in the 4th
schedule exclusive belongs to the 2nd
defendant?
(4)Whether the suit properties are
undervalued?
(5)to what relief, the plaintiffs
are entitled to?
6.Before the trial court, on side of the plaintiffs,
one witness was examined and 10 documents marked. On the
side of the defendants, one witness was examined and one
document marked. Through Court, CW1 was examined and
Ex.X1 has been marked.
7.At the conclusion of the trial process, the trial
court dismissed the suit without costs. Against which,
Appeal in AS No.176 of 2008 was filed before the
Principal District, Tiruchirappalli, which also came to
be dismissed, concurred with the judgment and decree of
the trial court.
8.Against which, this second appeal is preferred by
the appellants.
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9.At the time of admission, the following
substantial questions of law were framed:-
(1)Whether the court below are justified
in holding that as the defendants had failed
to prove his title to the suit properties,
the title of the plaintiffs has to be
accepted?
(2)Whether the courts below are
justified in holding that the trial court is
having pecuniary jurisdiction to try the suit
without considering the material evidence
available in the suit?
(3)Whether the courts below are
justified in holding that the parties to the
suit were in joint possession on no evidence?
10.The 1st substantial question of law was wrongly
framed, so, it is recasted as follows:-
(1)Whether the finding of the trial
court and the appellate court that the
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oral family arrangement pleaded by the
appellants was not proved?
11.Heard both sides.
12.A simple suit for partition. The relationship
between the parties is admitted. Similarly, the ownership
of the properties, except the 1st item in 4th schedule is
also admitted. The meaning thereby that those properties
belonged to Subbiah Thevar @ Ayyapillai Thevar. It is
also admitted that the properties are self-acquired
properties of Subbiah Thevar @ Ayyapillai Thevar. Being
the first class legal-heirs, the plaintiffs and the
defendants are equally entitled to get 1/5th share in
respect of all those properties.
13.Now a plea is raised by the defendants 1 and 2
that after the death of Subbiah Thevar @ Ayyapillai
Thevar, a family arrangement took place in the month of
November 1999. We will see that family arrangement was
properly brought on record by the defendants by
acceptable evidence. DW1 is the 2nd defendant. During the
course of cross examination of DW1, it was suggested by
him that on the day of the ceremony of the deceased, a
family arrangement took place. But the date in whose
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presence, the family arrangement took place is not
stated.
14.Now we will go to the evidence of DW1. According
to him, on the 11th day of the death of the father, family
arrangement was made. As mentioned above, he has not
stated any particulars regarding the arrangement. So,
except the evidence of DW1 on this aspect, no other
evidence is available.
15.More-over, the properties are all immovable
properties. If any release of share is made, by any of
the sharers, it can be effected only by way of a
registered document. But no such document was executed by
the persons. Even though, the family arrangement can be
made orally, but when the valuable rights are involved
that too release is subject matter, then mere oral
release is not permissible in law. With this in mind, we
will go further.
16.Now, according to the defendants, as per the
above said arrangement, he would say that the house
property was given to him. The first plaintiff was not
given any share in the property, but her maintenance was
ordered to be taken care and the defendants must take
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care. Similarly in respect of the second plaintiff, it is
stated that during the life time of the father, she was
given in marriage by providing sufficient properties. So,
the second plaintiff is also not entitled for any share
in the property. Absolutely, this sort of contention or
plea without proper proof, either oral or documentary
cannot be taken into account at all. The plea raised by
the defendants on that score is rejected outright not
only by the trial court, but also the appellate court for
valid reasons. Since it is a factual finding, unless the
appellant is not able to brought on record, perversity or
illegality in those findings, the second appellate court
cannot interfere. So, prima facie, the first plaintiff
and the second plaintiff are entitled equal share.
17.Now coming to the third plaintiff, it is admitted
that he converted himself to Islam. After that, he
married. Even on the death of the father, he did not
attend. Later for the 11th day ceremony, he attended.
Except the oral evidence of the parties, no other
documentary evidence is available. In fact, he was also
not examined as a party witness to deny those specific
pleas. So, naturally adverse inference has to be drawn
against the third plaintiff.
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18.In this context, we will go to the evidence of
PW1. She would say that the third plaintiff did not
attend the funeral rites. 18th day ceremony was performed
whether on that day, the third plaintiff participated,
there is no evidence. Even at the time of argument, it
was submitted by the respondents that in view of the
specific finding recorded by the trial court and the
appellate court, naturally the third plaintiff cannot get
any share in the property after conversion as it is
disqualified as per the Hindu Succession Act. According
to him, the share must be modified, accordingly, he got
automatically 1/4th share instead of 1/5 share.
19.In view of the above said specific argument
advanced by the respondents, no more discussion is
required. On that account, the third plaintiff is not
entitled any share in the property.
20.During the course of trial process, a stand was
taken by the defendants that as if the suit property
never belonged to Subbiah Thevar @ Ayyapillai Thevar.
There is specific admission in the written statement to
the effect that except the first item in the 4th schedule,
all the properties originally belongs to Subbiah Thevar @
Ayyapillai Thevar. But during the course of the evidence,
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as mentioned above, a new stand has been taken. The
defendants ought to have permitted to withdraw the
specific attempt and even, they have not stated that an
attempt was made without verifying the proper
particulars. So, the belated attempt made on the part of
the appellant during the course of the evidence cannot be
taken into account at all.
21.But however, to set the records right, the
evidence of PW7 may be recorded, since the right of the
father was denied. During the course of the cross
examination, PW1 was recalled and examined in chief
further on 05/12/2001. At that time, she produced
documents showing the purchase made by Subbiah Thevar @
Ayyapillai Thevar. Those documents were marked as Exs.A5
to A7. The certified copies of the sale deed standing in
his name. She has given the detailed description of the
properties. She was not cross examined with reference to
those documents by the defendants. So, this itself
clearly indicates that a plea was taken by the defendants
to the attempt made by the defendants during the course
of the evidence was not considered by the trial court and
the appellate court.
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22.So, the concurrent finding of the trial court as
well as the appellate court regarding the oral
arrangement, I find absolutely no perversity or illegally
has been committed, either by the trial court or the
appellate court in appreciating the evidence. So, the
substantial questions of law are answered accordingly.
23.The trial court has framed the issue regarding
the valuation of the property and recorded a finding that
it was not established on record that the plaintiffs have
valued the suit for lessor amount. In this regard, the
evidence of CW1 was rejected by the trial court for valid
reasons. Before the appellate court, that plea was not
properly raised. So, the finding recorded by the trial
court is corrected. So, no discussion is required in the
second appellate stage.
24.But as mentioned above, the third plaintiff is
not entitled for the property. But neither the trial
court, nor the appellate court has taken that into
account. Accordingly, a preliminary decree was passed by
the trial court, as confirmed by the appellate court
requires to be modified to the effect that except the
first item in the 4th schedule, the plaintiffs are
entitled for 1/4th share each.
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25.With the above said modification, this second
appeal stands dismissed with costs.
24/03/2025
Index:Yes/No
Internet:Yes/No
er
To,
1.The Principal District Judge,
Tuticorin.
2.The District Munsif,
Srivaikuntam,
Tuticorin.
3.The Section Officers,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
24/03/2025
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