IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:04/11/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.700 of 2000 1.Chellathuraichi (D1) 2.Thiruvalar Selvi (D2) ... Appellants / D1 and D2 vs. 1.Nachiar (1st Plaintiff) 2.Chinna Thai (2nd plaintiff) 3.Veluthai (3rd plaintiff) 4.Kasithai (D3) ... Respondents / 1st to 3rd plaintiff and 3rd defendant Prayer This second appeal has been filed under Section 100 of CPC against the decree and Judgment dated 24.09.1998 in A.S.No.80 of 1997 passed by the Additional Subordinate Judge, Tenkasi, confirming the decree and Judgment dated 28.02.1997 in O.S.No.350 of 1989 on the file of the Principal District Munsif, Sankaran Koil. !For Appellants ... Mr.K.Sellathurai, Advocate ^For respondents ... Mr.S.Meenakshi Sundaram, Advocate (For R1 to R3) ----- :JUDGMENT
This appeal has been directed against the decree and Judgment in A.S.No.80
of 1997 on the file of the Court of Additional Subordinate Judge, Tenkasi. The
defendants 1 & 2 in O.S.No.350 of 1989, against which A.S.No.80 of 1997 was
preferred, are the appellants in this second appeal, against the concurrent
findings of the Courts below. The suit is for partition of plaintiffs’ 3/5 share
(each 1/5th ) in the plaint schedule property and also for mesne profits.
2,The short facts in the plaint relevant for the purpose of deciding this
appeal are as follows:-
The plaint schedule property originally belonged to Thirupathiya Devar.
The plaint schedule properties are the self-acquired properties of the said
Thirupathiya Devar. He had married Shanmugathai Ammal and through her gave
birth to one son by name Senthurpandiyan and daughters plaintiffs 1 to 3 and D3.
The first defendant is the widow of Senthurpandiyan, The 2nd defendant is her
daughter. The plaint schedule property was enjoyed in common by Shanmugathai
Ammal – wife of Thirupathiya Devar, their son Senthurpandiyan, their daughters
plaintiffs 1 to 3 & D3. Some 11 years back Thirupathiya Devar died leaving the
plaintiffs, D3, Shendurpandiyan – husband of D1, and his wife Shanmugathai Ammal
as his legal heirs. Senthurpandiyan also pre-deceased his mother Shanmugathai
Ammal about 10 years back. Thereafter, Shanmugathai Ammal and other daughters
viz. Plaintiffs 1 to 3 & D3 were enjoying the plaint schedule property in
common. After the death of Shanmugathai Ammal, the defendants failed to give
their due share in the income derived from the plaint schedule property to the
plaintiffs. When the plaintiffs made a demand for partition of the plaint
schedule property in the year 1989, the defendants even though agreed for
partition, without any reason are delaying the same. Hence, the suit for
partition for plaintiffs’ 3/5 share in the plaint schedule property and for
mesne profits.
3.The defendants 1 & 2 have filed a joint written statement, which was
adopted by the defendants, as follows:-
The plaint schedule property is the ancestral property of Thirupathiya
Devar and his son Senthurpandiyan. Thirupathiya Devar died on 18.10.1976. His
son Senthurpandiyan also died some 9 . years back. The first defendant is the
widow of the said Senthurpandiyan. The second defendant is the only daughter of
Senthurpandiyan and Chellathuraichi (D1). The marriages of plaintiffs 1 to 3
and D3, who are the daughters of Thirupathiya Devar, were celebrated by
Thirupathiya Devar during his life time. During their marriage jewels and other
movable properties like utensils etc., were given by Thirupathiya Devar as
‘Shreedhanam’ and all of them were living with their husband in their house.
Thirupathiya Devar’s wife Shamugathai Ammal died in the year 1978. Thirupathiya
Devar while he was alive had executed a Will dated 19.07.1976 in favour of his
only son Senthurpandiyan bequeathing all his movable and immovables. The said
Will dated 19.07.1976 is the last Will and Testament of Thiurpathiya Devar.
After the death of Thirupathiya Devar, Senthurpandiyan became entitled to all
the movable and immovable properties of Thirupathiya Devar as per the terms of
the said Will. Till his death, Senthurpandiyan was maintaining his mother
Shanmugathai Ammal, who died in the year 1978. The last rites of Shanmugathai
Ammal was performed by Senthurpandiyan. After the death of Senthurpandiyan, D1 &
D2 became entitled to the plaint schedule properties as the legal heirs of
Senthurpandiyan and were in possession and enjoyment of the suit properties. The
claim of the plaintiffs that the plaint schedule properties are the self-
acquired properties of Thiurpathiya Devar and that they are each entitled to
1/5th share in the suit properties are all claimes of vexatious nature. The
plaintiffs are also not entitled to claim any mesne profits in the suit. After
the execution of the Will on 19.07.1976 in respect of the suit properties in
favour of his son Senthurpandiyan, the plaintiffs are not entitled to claim any
share in the plaint schedule properties. The defendants are in possession and
enjoyment of the plaint schedule properties without any interruption for more
than the statutory period of 12 years and thus have prescribed title to the
plaint schedule property by way of adverse possession. The plaintiffs have no
cause of action to file the suit. The Court fee paid by the plaintiffs is not
correct. Hence, the suit is liable to be dismissed with costs.
4.On the above pleadings the learned trial Judge has framed 8 issue for
trial. On the side of the plaintiffs, 3rd plaintiff has examined herself as
P.w.1 and exhibited Ex.A.1 and Ex.A.2. The first defendant was examined as
D.W.1 besides examining D.W.2 and D.W.3, the two attestors to the alleged Will
executed by Thiurpathiya Devar dated 19.07.1976. Ex.B.1 to Ex.B.22 were marked
on the side of the defendants. The learned trial Judge, after meticulously
going through the evidence both oral and documentary, has decreed the suit in
part thereby declaring the plaintiffs’ 25/180th share in the plaint schedule
property and relegated the question of mesne profits to a separate proceedings.
Aggrieved by the findings of the learned trial Judge, the defendants 1 and 2
have preferred A.S.No.80 of 1997 before the first appellate judge, who, after
giving due deliberations to the submissions made by the learned counsel on both
sides, finding no ground for interfering with the findings of the learned trial
Judge, has dismissed the appeal thereby confirming the decree and judgment of
the learned trial Judge, which necessitated the defendants 1 & 2 to prefer this
second appeal.
5.The following Substantial Questions of law are involved for
determination in this second appeal?
(1)In the presence of valid Will, whether the partition suit is
maintainable?
(2)Whether the exclusive and uninterrupted possession for more then
statutory period will confer title by Adverse possession?
The following additional Substantial Question of law has been formulated for
determination on 04.11.2008:-
To what share the paties are entitled?
6.Heard the learned counsel Mr.K.Sellathurai appearing for the appellants
and learned counsel Mr.S.Meenakshi Sundaram appearing for the respondents and
considered their rival submissions.
7.Substantial Question of law No.1:-According to the defendants 1 & 2 the
plaint schedule property is the ancestral property of Thirupathiya Devar, the
father of the plaintiffs and third defendant and father-in-law of the first
defendant and the grand-father of the second defendant. Per contra, it is the
case of the plaintiffs that the plaint schedule perperty is the self-acquired
properties of late Thirupathiya Devar. Having admitted in their written
statement as to the effect that the plaint schedule property is the ancestral
property of Thirupathiya Devar and his son Senthurpandiyan, the contesting
defendants 1 & 2 would claim that Thirupathiya Devar while he was alive had
bequeathed the plaint schedule property under his last Will and Testament dated
19.07.1976, Ex.A.22, in favour of his only son Senthurpandiyan, the husband of
the first defendant and the father of the second defendant. To prove Ex.A.22 –
unregistered Will on the side of the defendants, D.W.2 & D.W.3, the testators of
the Will Ex.A.22, were examined. D.W.3 is the father of D1 and the father-in-
law of late Senthurpandiyan. Even though he would depose that he has attested
Ex.A.22-Will, his evidence was not corroborated by the other attestors to
Ex.A.22- Will viz., D.W.2. According to D.W.2, the testator viz., Thirupathiya
Devar had scheduled the property which is the subject matter of Ex.A.22-Will in
Ex.A.22-Will showing the survey number and extent. But there is no schedule of
property to Ex.A.22-Will and there is no survey number or extent for the
property bequeathed mentioned in the Will. Further there are many
contradictions in his deposition as regards Ex.A.22-Will were pointed out by the
Courts below and the concurrent findings of the Courts below is that the
contesting defendants have failed to prove Ex.A.22-Will in accordance with law.
Admittedly Ex.A.22 is an unregistered Will and the burden is heavily on the
contesting defendants 1 & 2 to prove Ex.A.22-Will, beyond any reasonable doubt.
But the defendants have not discharged their onus required for proving the Will
– Ex.A.22 as per the provisions contemplated under Section 68 of the Evidence
Act. Hence, I hold on Substantial Question of Law No.1 that since the Will
– Ex.A.22 is not proved in accordance with law, the suit for partition is
maintainable.
8.Substantial Question of Law No.2:- To show their possession in respect
of the plaint schedule property, the defendants 1 and 2 have filed Ex.B.12 to
Ex.B.15 – tax receitps and Ex.B.16-patta and also Ex.B17 to Ex.B.21, house tax
receipts. Ex.B.12 to Ex.B.15 – land tax receipts are for the fasali 1393-94
and for 1395 only. One of the land tax receipts in the name of Senthurpandiyan
is for the fasli 1386-87. Ex.B.17 to Ex.B.21 – house tax receipts also show
that house tax was paid for Door NO.83 by D1 for the period 1987-88, 1988-89 &
1989-90 and one house tax receipt for 1978-79 stands in the name of
Senthurpandiyan. So apart from these tax receipts, there are no tax receipts
produced by the defendants 1 & 2 to show that they in continuous, uninterrupted
possession of the plaint schedule property for more than the statutory period to
claim that they have prescribed title by way of adverse possession to the plaint
schedule property. Hence, I hold on Substantial Question of Law No.2 that the
defendants 1 & 2 have failed to prove that they are in exclusive uninterrupted
and continuous possession of the plaint schedule property for more than the
statutory period to claim title by way of adverse possession.
9.Additional Substantial Question of Law:- Even according to D1 & D2, the
suit property is the ancestral properties of Thirupathiya Devar and his son
Senthurpandiyan. So Thirupathiya Devar is entitled to one half share and his son
Senthurpandiyan is entitled to one half share. Thirupathiya Devar died on
18.10.1976 as evidenced under Ex.A.1-death extract. So the father’s one half
share devolved on his wife Shanmugathai Ammal and his daughters plaintiffs 1 to
3 & D3 and his son Senthurpandiyan equally. So, the mother Shanmugathai Ammal,
plaintiffs 1 to 3, D3 and son Senthurpandiyan are all each entitled to 1/12
share, besides this, Senthurpandiyan was also entitled to one half share. So,
the share to which Senthurpandiyan was entitled to in the plaint schedule
property come to 7/12th share (1/2 + 1/12 = 7/12). D1 as D.W.1 in her
evidence would admit that her husband Senthurpandiyan pre-deceased her mother-
in-law Shanmugathai Ammal. There is no contra evidence adduced by the parties to
show that Senthurpandiyan died after the death of Shanmugathai Ammal on 3.5.1980
as seen from Ex.A.2, death extract relating to Shanmugathai Ammal. So, the
7/12th share of Senthurpandiyan devolved on his mother Shanmugathai Ammal, his
wife D1 and his daughter D2 in equal moieties i.e, mother is entitled to 7/36th
share (1/3 of 7/12), D1 is entitled to 7/36th share (1/3 of 7/12), D2 is
entitled to 7/36th share (1/3 of 7/12). Shanmugathai Ammal, mother, was already
entitled to 1/12th share and after the death of her son Senthurpandian, she also
derived 7/36th share. So the total share to which Shanmugathai Ammal was
entitled comes to 5/18 [1/12 + 7/36 = 10/36 = 5/18]. After the death of the
mother Shanmugathai Ammal, under section 15 of the Hindu Succession Act, her
daughters plaintiffs 1 to 3 & D3 are each entitled to 1/4th share of 5/18th
share (=5/72). The first plaintiff is thus became entitled to 11/72nd share
(1/12 + 5/72 = 11/72), the second plaintiff is entitled to 11/72nd share
(1/12 + 5/72 = 11/72), the third plaintiff is entitled to 11/72nd share (1/12
+ 5/72 = 11/72) and D3 is entitled to 11/72nd share (1/12 + 5/72 = 11/72) and
D1 is entitled to 7/36th share = 14/72nd share. D2 is entitled to 7/36th share
= 14/72nd share. Under such circumstances, the preliminary decree for
partition of plaintiffs’ 11/72nd share each is to be passed since the other
defendants have not paid the Court fee. On payment of Court fee before the
trial Court at the time of passing of final decree, they are also entitled to
the above said of shares.
10.In fine, the appeal is allowed in part and the decree and judgment of
the learned first appellate Court in A.S.No.80 of 1997 on the file of the
Additional Subordinate Judge, Tenkasi, is modified as follows:- A preliminary
decree for partition of plaintiffs’ 11/72nd share each is passed. In other
respects the appeal is dismissed confirming the decree and judgment of the
learned first appellate Court in A.S.No.80 of 1997 on the file of the Additional
Subordinate Judge, Tenkasi. No costs.
ssv
To,
1.The Additional Subordinate Judge, Tenkasi,
2.The Principal District Munsif, Sankaran Koil.