BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2010 Coram THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A.No.283 of 2004 1.Kasinathan 2.Palani .. Appellants Vs 1.Paulraj 2.Muniyandi 3.Mayalagu (since Respondents 2 and 3 are set exparte in the suit and the First Appeal and notice to them is not necessary) .. Respondents PRAYER This Second Appeal filed under Section 100 of The Civil Procedure Code against the Judgement and decree dated 08.03.2004 passed in A.S.No.6/2004 on the file of the Principal District Court, Ramnad, reversing the Judgement and Decree dated 5.11.2003 made in O.S.No.55 of 2000 on the file of the Principal District Munsif Court, Ramnad. !For Appellants ... Mr.A.Arumugam for M.Ajmal Khan ^For Respondents ... Mr.V.Sitharanjandas for R1 :JUDGMENT
The first and second Plaintiffs are the appellants. The second
appeal is filed against the Judgment and Decree dated 08.03.2004, passed in
A.S.No.6 of 2004 on the file of the Principal District Court, Ramnad, reversing
the Judgement and Decree dated 5.11.2003, made in O.S.No.55 of 2000 on the file
of the Principal District Munsif Court, Ramnad.
2.The suit is filed for partition of `A’ schedule property into
three equal shares, allotting two shares to the plaintiffs and dividing the `B’
schedule property into six shares and allotting two shares to the plaintiffs.
3.The brief facts of the case is as follows:-
The suit property originally belonged to one Vellaiyan. The
defendants one and two are the sons of said Vellaiyan and they inherited the
suit properties and were in enjoyment and possession. There was a partition
between the defendants 1 and 2 in the presence of the village elders by which
the `A’ schedule was allotted to the first defendant and some other properties
was allotted to the second defendant, which are not shown as suit properties.
The `B’ schedule properties were not divided between the defendants 1 and 2.
The plaintiffs are the sons of the first defendant. The first defendant was
sharing the income from cutting the trees with the plaintiffs. However, when
the trees were cut recently the plaintiffs were not given due share. On
enquiry, it was found that the defendants have sold the property to the third
defendant. As far as `A’ schedule is concerned, the plaintiffs and the first
defendant have equal share and therefore it has to be divided into three equal
shares and two shares have to be allotted to the plaintiffs. As far as the `B’
schedule is concerned, the plaintiffs are entitled for 2/6 shares along with
first and second defendants.
4.The first and second defendants have remained exparte and the suit
was resisted by third defendant. It was admitted that the suit properties and
some other properties originally belonged to one Vellaiyan and the defendants 1
and 2 are the his legal heirs. It was denied that in the oral partition, `A’
schedule and some other properties were divided and `A’ schedule was allotted
to the first defendant and the `B’ schedule remained undivided. It was submitted
that even during the life time of their father, the properties were divided and
the `B’ schedule and some other properties were allotted to the second defendant
and he was given possession. Therefore `B’ schedule has become the absolute
property of the second defendant and he has sold the property by a sale deed
dated 25.01.1996 to one Gurusamy. The recitals there under would show that
there was a partition between the brothers and from the said Gurusamy the third
defendant has purchased the property by a sale deed dated 11.3.1997 and he is in
possession and enjoyment.
5.Based on the above averments, the District Munsif, Ramnadapuram,
framed triable issues and found that the plaintiffs have proved the case and
there was no partition of the `B’ schedule property and has decreed the suit for
partition. Aggrieved by the decree and judgment, the third defendant preferred
an appeal before the Principal District Court, Ramnadapuram and the learned
Principal District Judge found that the suit has been filed collusively by the
plaintiff and the first and second defendants and there is no cause of action
for the suit. Therefore allowed the appeal and suit was dismised. Aggrieved by
the reversing decree and judgment, the plaintiffs have preferred the present
appeal on various grounds, more particularly, on the ground that the learned
first appellate court ought to have seen that in the absence of any documentary
evidence for the proof of partition of `B’ schedule property, the burden is
heavily on the third defendant to prove oral partition of the `B’ schedule
property.
6.On admission, this Court framed the following substantial
questions of law for consideration.
1.Whether the lower appellate Court is correct in dismissing the suit
holding that the appellants/plaintiffs have no cause of action for instituting
the suit in so far as `A’ schedule property is concerned, while admitting that
the appellants/plaintiffs are entitled to `A’ schedule property as prayed for?
2.Whether the lower appellate Court is correct in holding that the 3rd
defendant is entitled to `B’ schedule property as there was a oral partition
between the co-owners in the absence of any specific pleadings as to ouster of
other co-owners?
3.Whether the lower appellate Court is correct in shifting the burden of
proof on the appellants/plaintiffs to prove that there was no oral partition
between the co-owners as claimed by the third defendant?
7.Mr.A.Arumugam the learned counsel for the appellant submitted that
the contesting defendant had admitted that the properties originally belonged to
one Vellaiyan and the first and second defendants are the legal heirs. The
learned counsel pointed out that it is the admitted case that there was a oral
partition between the parties as far as `A’ schedule is concerned and as far as
`B’ schedule is concerned, it was kept in common and the claim of the purchaser
that it was allotted to the second defendant is unfounded and the first
appellate court is wrong in holding that a presumption has to be drawn that the
properties were divided among the sharers. The learned counsel also pointed out
the first appellate court is wrong in holding that there is no cause of action
for the suit holding that the suit is filed collusively to defeat the right of
the third defendant.
8.Mr.V.Sitharanjandas the learned counsel for the first
respondent/third defendant would submit that the plaintiffs have admitted that
there was a partition in the family and the `A’ schedule was allotted to the
share of first defendant. The learned counsel pointed out that the `B’ schedule
was allotted to the second defendant from whom one Gurusamy has purchased the
property and the recitals of the deed would show that there was a partition
between the brothers. Therefore, the learned counsel pointed that it is a
collusive suit only do defeat the right of the third defendant and it has been
rightly dismissed by the first appellate court.
9.Heard, the learned counsel for the appellants and the respondents.
10.It is the admitted fact that the suit properties and some other
properties belonged to one Vellaiyan, the father of the defnedants 1 and 2. It
is also admitted that there was a oral partition between the brothers regarding
the joint family properties. The plaintiffs who are sons of the first defendant
would contend that the said partition relates to only `A’ schedule property
which was allotted to the first defendant and the `B’ schedule property was kept
in common and it was not partitioned. The contention of the third defendant who
is the subsequent purchaser of the `B’ schedule property is that the `B’
schedule property was allotted to the third defendant from whom one Gurusamy
purchased under Ex.B-2 on 25.1.1996 and thereafter he sold the property to him
under Ex.B.1. The trial court believed the version of the plaintiffs and decreed
for partition.
11.As far as `A’ schedule property is concerned there is no dispute
between the parties. The dispute is only with regard to `B’ schedule.
12.The first appellate court disagreed with the plaintiffs on two
grounds. (1) that according to Hindu law, when a partition is admitted or
proved, the presumption is that all the properties were divided. When a person
is alleging that family property in the exclusive possession of one of the
members, after the partition, is the joint family property and it is liable to
be partitioned,theburden is on him to prove the same. Therefore the first
appellate court proceeded on the basis that the burden is heavily on the
plaintiffs to prove that the `B’ schedule is divided in the earlier partition.
13.The first appellate court found, that the first plaintiff who
was examined as P.W.1 was totally ignorant of the earlier partition and
discarded his oral evidence. The first appellate court also considered the
recitals solely in Ex.B.2 wherein the first and second defendants have joined
for selling the property. The first appellate court found that the recitals
would show that the `B’ schedule property has already been allotted the second
defendant.
14.The first appellate court had also found that merely, the second
defendant has joined in the sale will not amount to that there was no division
of the property.
15.The second ground on which the first appellate court dismissed
the suit is that as far as `A’ schedule is concerned the plaint is bereft of
necessary particulars with regard to cause of action for effecting partition of
`A’ schedule property. The first appellate court has found there is no dispute
with regard to `A’ schedule property between the plaintiffs and the first
defendant and `A’ schedule property has been included in the suit schedule only
to a make belief that there is dispute between the sharers.
16.As stated earlier, prior partition between the first and second
defendants was admitted by the plaitiffs. As rightly pointed out by the first
appellate court, when a partition is admitted and proved, the presumption is
that the properties were divided between the joint family members. Since the
plaintiffs contend that `B’ schedule was kept in common, the burden is heavily
upon the plaintiffs to prove. The plaintiffs would state that `A’ schedule was
allotted to the first defendant and some other properties were allotted to the
second defendant. It is a vague statement and they have not given particulars
about some other properties which were allotted to the second defendant.
Therefore, the presumption is that the `A’ schedule was allotted to the first
defendant and the `B’ schedule was allotted to the second defendant.
17.The only impediment is that while selling the `B’ schedule
property under Ex.B2, the second defendant and his sons were also added as
parties and the recitals would read that “fhyk; brd;WBghd ek; jfg;gdhh;
bts;isad; tHpapy; ekf;F ghj;jpakhdJk; ek; jfg;gdhh; fhyj;jpByBa 2tJ egUf;F
ghfkhf xJf;fp” It doesn’t stop there, but, further states that “ehsJ Bjjp tiu
ehA;fBs rh;f;fhh; thptifawhit brYj;jpf;bfhz;L vA;fsJ iftrk; itj;J mDgtk; bra;J
tUk; fPH;f;fz;l g[d;bra; epyj;ij vA;fspd; bghJf;FLk;g Bjitf;fhf buhf;fkha;
bgw;Wf;bfhz;lgo.”
18.The recitals would show as if the `B’ schedule was allotted to
the second defendant and further show that they were still in common enjoyment
by the joint family. Even assuming that it was kept in common, the sale is for
the family necessity. The minor children of the first and second defendants were
represented by the father guardian, so the sale is by the joint family members.
19.The instrument has to be read in whole and the intension of the
vendors seems to be that though the properties were allotted to the share of the
second defendant, it was held in common and was sold for family necessity. The
minors’ shares in a joint family property can be alienated if it is soled for
family necessity. The plaintiffs have not objected that it was not for the
family necessity. Therefore, the sale under Ex.B2 is a valid sale and it was for
family necessity and the plaintiffs have no right in the `B’ schedule property.
20.As far as `A’ schedule is concerned the first defendant has not
objected for the partition. It is admitted that `A’ schedule was allotted to
the first defendant and the plaintiffs have also shares in the property.
Therefore the plaintiffs are entitled for a partition as far as `A’ schedule is
concerned. The substantial questions of law are answared accordingly.
21.As far as `A’ schedule property is concerned the plaintiffs are
entitled for partition as prayed for and as far as `B’ schedule is concerned it
was sold for a family necessity for the joint family members including the
minors and therefore, they are not entitled for a share. The partition for `A’
schedule is granted. The relief claimed for partiion of `B’ schedule is
dismissed.
22.In the result, the second appeal is partly allowed and the decree
and judgment of the first appellate court is modified. Partition for `A’
schedule is granted in favour of the plaintiffs. No costs.
am
To
1.The Principal District Court,
Ramnad.
2.The Principal District Munsif,
Ramnad.