IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/12/2010
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Appeal Suit No.1 of 2007
1.Sakkaravarthy
2.Srinivasan .. Appellants
Vs
Thillaivanam .. Respondent
Prayer: This Appeal Suit has been preferred under Section 96 C.P.C., praying to set aside the Judgment and decree dated 28.04.2005 in O.S.No.9 of 2002, on the file of the Additional District and Sessions Court (Fast Track Court) at Kallakurichi.
For Appellants : Ms.Asha for
M/S.Sarvabhauman Associates
For Respondent : Mr.R.Sunil Kumar
JUDGMENT
This appeal has been arising out of the Judgment and decree dated 28.04.2005 made in O.S.No.9 of 2002, on the file of the Additional District and Sessions Court (Fast Track Court) at Kallakurichi.
2.The averments made in the plaint are as follows:
The suit properties are ancestral and joint family properties of the plaintiffs and the defendant and his father Muniyan. Muniyan died intestate in the year 1960. After his death, the plaintiffs and the defendant inherited the properties and was in possession and enjoyment of the same. The defendant is the manager and kartha of the family and he managed the properties. Muniyan’s daughter Sivapayee got married 25 years ago. So, the plaintiffs and the defendant alone are each entitled to 1/3 share in the suit properties. The defendant as a kartha of the family, purchased some properties from the income of the joint family nucleus. Even the plaintiffs demanded a partition, the defendant has not given the proper share in the joint family properties. A partition deed was executed on 04.04.1992, which does not contain the properties in the name of the defendant, which was purchased out of the income from the joint family nucleus. So all the properties are in joint possession of the plaintiffs and the defendant. The defendant has not given any share of the income from the suit properties. Even though a partition deed was executed on 04.04.1992, it was not accepted and acted upon. Even though the plaintiffs demanded a partition through the Panchayatar, the defendant refused to give the share. Hence the plaintiffs are constrained to file a suit for partition of 2/3rd share in the suit properties.
3.The gist and essence of the written statement filed by the defendant is as follows:-
The registered partition deed was executed and effected on 04.04.1992. One month prior to the date of execution of partition deed dated 04.04.1992, there was a panchayat. In that panchayat, all the properties were divided and a fair division has been effected. Then only the registered partition deed has been executed. In the partition, 5 acres 46 = cents was allotted to the defendant, 5 acres 8 = cents was allotted to the first plaintiff and 4 acres 76 = cents was allotted to the second plaintiff. Since the plaintiffs were allotted with terraced houses, the defendant was allotted with 0.08 cents in Survey No.107/1 and 0.22 cents in Survey No.105/5A. Since the plaintiffs demanded a cattle shed, the defendant has given 7 cents each to the plaintiffs. 0.30 cents in Re-survey No.55/13 and 0.19 cents in Re-survey No.55/17 were absolutely owned by Kaliammal, a cousin sister of the defendant, who had executed the settlement deed in favour of the defendant on 11.05.1981. The plaintiffs have no right over those properties. But the defendant has given 0.19 cents in Re-survey No.55/17 to the plaintiffs. After the partition, the plaintiffs and the defendant accepted the partition and enjoying the properties and dealt with the properties by way of alienating the properties. So the sharers are accepting the partition and acted upon the same. Now, the suit is barred by limitation and the suit properties are not properly valued. The suit ought to have valued under Section 37(2) of Court Fees Act. Hence, he prayed for dismissal of the suit.
4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed six issues and considering the oral evidence of P.W.1 and D.W.1 and Exs.A1 & A2 and B1 to B3, dismissed the suit. Against which, the present appeal has been preferred by the appellants/plaintiffs.
5.After hearing the arguments of both sides counsel, the following points for determination are framed:
1.Whether the trial Court is correct in held that the partition deed dated 04.04.1992 was accepted and acted upon?
2.Whether the trial Court is correct in dismissing the suit?
3.To what relief, the appellants are entitled to?
6.Points No.1 to 3:
The learned counsel for the appellants submitted that the properties described in the plaint are originally ancestral and joint family properties. Both the appellants and respondent’s father Muniyan inherited the properties by way of succession. Muniyan having three sons, viz., the appellants 1 and 2, respondent and one daughter name Sivapayee. Sivapayee has not impleaded as a party to the proceedings. The appellants as the plaintiffs filed a suit for partition stating that since the respondent/defendant was the kartha and manager of the joint family, he managing the properties. He purchased the properties in his name out of the income derived from the ancestral joint family properties. At the time of partition, those properties were not divided. Since the partition deed Ex.B3 was not accepted and acted upon, the appellants demanded a partition. Since the respondent/defendant gave an evasive reply, the appellants/plaintiffs constrained to file a suit for partition and prayed for a decree and for allowing the appeal.
7.(i) Per contra, the learned counsel for the respondent raised his plea that the partition was effected as per the partition deed under Ex.B3 on 04.04.1992, the appellants accepted the partition and dealt with the properties by sale deeds under Exs.B1 and B2, in the year 1999. The appellants issued a notice to the defendant under Ex.A1 on 08.07.1999.
(ii) The trial Court after considering the oral and documentary evidence, dismissed the suit stating that Ex.B3-partition deed is true and genuine and accepted and acted upon. In pursuance of Ex.B3, the appellants herein have dealt with the properties by way of alienation. The appellants are referred the partition deed in Ex.B2.
(iii) Further, the learned counsel for the respondent submitted that since the registered partition deed was executed on 04.04.1992, the suit was filed only in the year 2002 under Section 92 of the Indian Evidence Act. The appellants are excluded to let in oral evidence contrary to the recital of partition deed under Ex-B3. Hence he prayed for dismissal of the suit.
8.Considered the rival submissions made on both sides.
9.On the side of the appellants, the first appellant/first plaintiff was examined as P.W.1-Sakkaravarthy. He issued a notice dated 08.07.1999 to the defendant, which was marked as Ex.A1 and the reply dated 09.07.1999 by the defendant, which was marked as Ex.A2. In the chief-examination, P.W.1 has stated that his brother/respondent has taken fertile lands whereas the appellants have allotted to inferior quality of lands. In his cross-examination, P.W.1 has fairly conceded that the partition deed Ex.B3 dated 04.04.1992 was executed in the presence of the Panchayatar wherein the lands were measured and then it was divided. Further he stated that the second appellant has executed a sale deed in favour of one Rajendran under Ex.B1. In Ex.B1, P.W.1 is one of the attestors. Ex.B2 is a sale deed, in which, the second appellant has executed in favour of the first appellant. In Ex.B2, it was specifically mentioned by the second appellant as follows:
“ehd; vdf;Fr; brhe;jkha[k;. vdJ mz;zhh; jpy;iytdk; bgahpy; D.No.1-920/89 goa[k; mjd;gpwF. Vd; FLk;g tifauh 3/4/92 y; bra;J bfhz;l ghfg;gphptpidg; gj;jpu vz;=406-92 go vdf;F @rp@ brl;a{y; brhj;jhf fpilj;Jk; ehd; ,Jehs; tiu jPh;it brYj;jp mDgtpj;J tUfpnwd;/@
The properties mentioned in Ex.B2 are the ‘C’ schedule properties in Ex.B3. The second appellant was in possession of the ‘C’ schedule properties and then only he sold the same to his brother, the first appellant, which shows that both the appellants are accepting the partition deed. In fact, Ex.B2 came into existence on 11.03.2004, during the pendency of the suit in O.S.No.9 of 2002. D.W.1-Thillaivanam/respondent in his evidence stated that after the partition, both the appellants were taken possession of their respective shares and was in possession and enjoyment of the same. They purchased the properties in their name out of the income derived from the properties allotted to them under Ex.B3. In his cross-examination, D.W.1 stated that his father Muniyan died in the year 1959. At the time of his death, his family owned 2 acres Punja land. One acre land is having irrigational facility and the other one acre land is manavary land. After his father’s death, both the parties had purchased 7 acres of land in various dates. After panchayat only, the properties were divided. The properties have been divided in accordance with the standard of the lands. After partition, mutation of revenue records were effected.
10.Admittedly, at the time of death of Muniyan, the family owns only 2 acres of land. One acre is for irrigational facility and the other one is a manavary land. Admittedly, the partition was effected on 04.04.1992 and it was a registered one. Before partition, the panchayat was conducted. In the said panchayat, as per the version of P.W.1, Panchayatar measured the properties and divided the properties. Then only the partition deed has been executed and registered. After that, the appellants dealt with the properties, which were evidenced by Exs.B1 and B2.
11.In such circumstances, I am of the view that the trial Court has considered this aspect in proper perspective and came to the correct conclusion that Ex.B3-partition deed is true and genuine and it was not a fraudulent one. It is accepted and acted upon by the appellants. Furthermore, the appellants herein have dealt with the properties. P.W.1 himself purchased a property from his brother which was marked as Ex.B2, even during the pendency of the original suit. In Ex.B2, it was specifically mentioned by the second appellant is as follows:
“ehd; vdf;Fr; brhe;jkha[k;. vdJ mz;zhh; jpy;iytdk; bgahpy; D.No.1-920/89 goa[k; mjd;gpwF. Vd; FLk;g tifauh 3/4/92 y; bra;J bfhz;l ghfg;gphptpidg; gj;jpu vz;=406-92 go vdf;F @rp@ brl;a{y; brhj;jhf fpilj;Jk; ehd; ,Jehs; tiu jPh;it brYj;jp mDgtpj;J tUfpnwd;/@
The above paragraph shows that both the parties are accepted the partition and dealt with the properties allotted under Ex.B3 partition deed. In such circumstances, the plea raised by the learned counsel for the appellants that the partition deed-Ex.B3 is not accepted is, does not merit acceptance. As already stated that prior of Ex.B3, a panchayat was conducted. The Panchayatar measured the properties and divided the same and allotted to the sharers. In pursuance of that only, Ex.B3 was executed and registered. In pursuance of that, the appellants dealt with the properties under Exs.B1 and B2. Hence I am of the view that the properties are already partitioned. Nothing is available for further partition. Hence, the trial Court is correct in held that the appellants/plaintiffs are not entitled any reliefs. Points No.1 to 3 are answered accordingly.
12.In fine,
The appeal suit is dismissed.
The Judgment and decree passed by the Additional District and Sessions Court (Fast Track Court) at Kallakurichi in O.S.No.9 of 2002 dated 28.04.2005 is hereby confirmed.
No costs.
.12.2010
Index :Yes
Internet:yes
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R.MALA,J.
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To
1.The Additional District and Sessions Court
(Fast Track Court), Kallakurichi.
2.The Record Keeper
V.R. Section, High Court, Madras.
Pre-delivery Judgment in
Appeal Suit No.1 of 2007
.12.2010