{"id":128066,"date":"2010-01-19T00:00:00","date_gmt":"2010-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kasinathan-vs-paulraj-on-19-january-2010"},"modified":"2018-09-04T04:13:24","modified_gmt":"2018-09-03T22:43:24","slug":"kasinathan-vs-paulraj-on-19-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kasinathan-vs-paulraj-on-19-january-2010","title":{"rendered":"Kasinathan vs Paulraj on 19 January, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Kasinathan vs Paulraj on 19 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 19\/01\/2010\n\nCoram\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nS.A.No.283 of 2004\n\n1.Kasinathan\t\t\t\t\t\t\t\t\n2.Palani\t\t\t\t\t    .. Appellants\n\nVs\n\n1.Paulraj\n2.Muniyandi\n3.Mayalagu\n(since Respondents 2 and 3 are set\nexparte in the suit and the First\nAppeal and notice to them is not\nnecessary)\t\t\t\t            .. Respondents\n\nPRAYER\n\nThis Second Appeal filed under Section 100 of The Civil Procedure Code\nagainst the Judgement and decree dated 08.03.2004 passed in A.S.No.6\/2004 on the\nfile of the Principal District Court, Ramnad, reversing the Judgement and Decree\ndated 5.11.2003 made in O.S.No.55 of 2000 on the file of the Principal District\nMunsif Court, Ramnad.\n\n!For Appellants\t  ... Mr.A.Arumugam for\n\t\t      M.Ajmal Khan\n^For Respondents  ... Mr.V.Sitharanjandas for R1\t\n\n:JUDGMENT\n<\/pre>\n
\t\tThe first and second Plaintiffs are  the appellants. The second
\nappeal is filed against the Judgment and Decree dated 08.03.2004, passed in
\nA.S.No.6 of 2004 on the file of the Principal District Court, Ramnad, reversing
\nthe Judgement and Decree dated 5.11.2003, made in O.S.No.55 of 2000 on the file
\nof the Principal District Munsif Court, Ramnad.\n<\/p>\n
\t\t2.The suit is filed for partition of `A’ schedule property into
\nthree equal shares, allotting two shares to the plaintiffs and dividing the `B’
\nschedule property into six shares and allotting two shares to the plaintiffs.\n<\/p>\n
\t\t3.The brief facts of the case is as follows:-\n<\/p>\n
\t\tThe suit property originally belonged to one Vellaiyan. The
\ndefendants one and two are the sons of said Vellaiyan and they inherited the
\nsuit properties and were in enjoyment and possession.  There was a partition
\nbetween the defendants 1 and 2 in the presence of the village elders by which
\nthe `A’ schedule was allotted to the first defendant and some other properties
\nwas allotted to the second defendant, which are not shown as suit properties.
\nThe `B’ schedule properties were not divided between the defendants 1 and 2.
\nThe plaintiffs are the sons of the first defendant. The first defendant was
\nsharing the income from cutting the trees with the plaintiffs.  However, when
\nthe trees were cut recently the plaintiffs were not given due share.  On
\nenquiry, it was found that the defendants have sold the property to the third
\ndefendant.  As far as `A’ schedule is concerned, the plaintiffs and the first
\ndefendant have equal share and therefore it has to be divided into three equal
\nshares and two shares have to be allotted to the plaintiffs. As far as the `B’
\nschedule is concerned, the plaintiffs are entitled for 2\/6 shares along with
\nfirst and second defendants.\n<\/p>\n
\t\t4.The first and second defendants have remained exparte and the suit
\nwas resisted  by third defendant. It was admitted that the suit properties and
\nsome other properties originally belonged to one Vellaiyan and the defendants 1
\nand 2 are the his legal heirs.  It was denied that in the oral partition, `A’
\nschedule  and some other properties were divided and `A’ schedule was allotted
\nto the first defendant and the `B’ schedule remained undivided. It was submitted
\nthat even during the life time of their father, the properties were divided and
\nthe `B’ schedule and some other properties were allotted to the second defendant
\nand he was given possession.  Therefore `B’ schedule has become the absolute
\nproperty of the second defendant and he has sold the property by a sale deed
\ndated 25.01.1996 to one Gurusamy.  The recitals there  under would show that
\nthere was a partition between the brothers and from the said Gurusamy the third
\ndefendant has purchased the property by a sale deed dated 11.3.1997 and he is in
\npossession and enjoyment.\n<\/p>\n
\t\t5.Based on the above averments, the District Munsif, Ramnadapuram,
\nframed triable issues and found that the plaintiffs have proved the case and
\nthere was no partition of the `B’ schedule property and has decreed the suit for
\npartition.  Aggrieved by the decree and judgment, the third defendant preferred
\nan appeal before the Principal District Court, Ramnadapuram and the learned
\nPrincipal District Judge found that the suit has been filed collusively by the
\nplaintiff and the first and second defendants and there is no cause of action
\nfor the suit. Therefore allowed the appeal and suit was dismised.  Aggrieved by
\nthe reversing decree and judgment, the plaintiffs have preferred the present
\nappeal on various grounds, more particularly, on the ground that the learned
\nfirst appellate court ought to have seen that in the absence of any documentary
\nevidence for the proof of partition of `B’ schedule property, the burden is
\nheavily on the third defendant to prove oral partition of the `B’ schedule
\nproperty.\n<\/p>\n
\t\t6.On admission, this Court framed the following substantial
\nquestions of law for consideration.\n<\/p>\n
\t1.Whether the lower appellate Court is correct in dismissing the suit
\nholding that the appellants\/plaintiffs have no cause of action for instituting
\nthe suit in so far as `A’ schedule property is concerned, while admitting that
\nthe appellants\/plaintiffs are entitled to `A’ schedule property as prayed for?\n<\/p>\n
\t2.Whether the lower appellate Court is correct in holding that the 3rd
\ndefendant is entitled to `B’ schedule property as there was a oral partition
\nbetween the co-owners in the absence of any specific pleadings as to ouster of
\nother co-owners?\n<\/p>\n
\t3.Whether the lower appellate Court is correct in shifting the burden of
\nproof on the appellants\/plaintiffs to prove that there was no oral partition
\nbetween the co-owners as claimed by the third defendant?\n<\/p>\n
\t\t7.Mr.A.Arumugam the learned counsel for the appellant submitted that
\nthe contesting defendant had admitted that the properties originally belonged to
\none Vellaiyan and the first and second defendants are the legal heirs.   The
\nlearned  counsel pointed out that it is the admitted case that there was a oral
\npartition between the parties as far as `A’ schedule is concerned and as far as
\n`B’ schedule is concerned, it was kept in common and the claim of the purchaser
\nthat it was allotted to the second defendant is unfounded and the first
\nappellate court is wrong in holding that a presumption has to be drawn that the
\nproperties were divided among the sharers. The learned counsel also pointed out
\nthe first appellate court is wrong in holding that there is no cause of action
\nfor the suit holding that the suit is filed collusively to defeat the  right of
\nthe third defendant.\n<\/p>\n
\t\t8.Mr.V.Sitharanjandas the learned counsel for the first
\nrespondent\/third defendant would submit that the plaintiffs have admitted that
\nthere was a partition in the family and the `A’ schedule was allotted to the
\nshare of first defendant.  The learned counsel pointed out that the `B’ schedule
\nwas allotted to the second defendant from whom one Gurusamy has purchased the
\nproperty and the recitals of the deed would show that there was a partition
\nbetween the brothers.  Therefore, the learned counsel pointed that it is a
\ncollusive suit only do defeat the right of the third defendant and it has been
\nrightly dismissed by the first appellate court.\n<\/p>\n
\t\t9.Heard, the learned counsel for the appellants and the respondents.\n<\/p>\n
\t\t10.It is the  admitted fact that the suit properties and some other
\nproperties belonged to one Vellaiyan, the father of the defnedants 1 and 2. It
\nis also admitted that there was a oral partition between the brothers  regarding
\nthe joint family properties.  The plaintiffs who are sons of the first defendant
\nwould contend that the said partition relates to only `A’ schedule property
\nwhich was allotted to the first defendant and the `B’ schedule property was kept
\nin common and it was not partitioned. The contention of the third defendant who
\nis the subsequent purchaser of the `B’ schedule property is that the `B’
\nschedule property was allotted to the third defendant from whom one Gurusamy
\npurchased under Ex.B-2 on 25.1.1996 and thereafter he sold the property to him
\nunder Ex.B.1. The trial court believed the version of the plaintiffs and decreed
\nfor partition.\n<\/p>\n
\t\t11.As far as `A’ schedule property is concerned there is no dispute
\nbetween the parties. The dispute is only with regard to `B’ schedule.\n<\/p>\n
\t\t12.The first appellate court disagreed with the plaintiffs on two
\ngrounds. (1) that according  to  Hindu law, when a partition is admitted or
\nproved, the presumption is that all the properties were divided. When a person
\nis alleging that family property in the exclusive possession of one of the
\nmembers, after the partition, is the joint family property and it is liable to
\nbe partitioned,theburden is on him to prove the same. Therefore the first
\nappellate court proceeded on the basis that  the burden is heavily on the
\nplaintiffs to prove that  the `B’ schedule is divided in the earlier partition.\n<\/p>\n
\t\t13.The first appellate court found, that the  first plaintiff who
\nwas examined as P.W.1 was totally ignorant of the earlier partition and
\ndiscarded his oral evidence.  The first appellate court also considered the
\nrecitals solely in Ex.B.2 wherein the first and second defendants have joined
\nfor selling the property.  The first appellate court found that the recitals
\nwould show that the `B’ schedule  property has already been allotted the second
\ndefendant.\n<\/p>\n
\t\t14.The first appellate court had also found that merely, the second
\ndefendant has joined in  the sale will not amount to that there was no division
\nof the property.\n<\/p>\n
\t\t15.The second ground on which the first appellate court dismissed
\nthe suit is that as far as `A’ schedule is concerned the plaint is bereft of
\nnecessary particulars with regard to cause of action for effecting partition of
\n`A’ schedule property.  The first appellate court has found there is no dispute
\nwith regard to `A’ schedule property between the plaintiffs and the first
\ndefendant and `A’ schedule property has been included in the suit schedule only
\nto  a make belief that there is dispute between the sharers.\n<\/p>\n
\t\t16.As stated earlier, prior partition between the first and second
\ndefendants was admitted by the plaitiffs. As rightly pointed out by the first
\nappellate court, when a partition is admitted and proved, the presumption is
\nthat the properties were divided between the joint family members.  Since the
\nplaintiffs contend that `B’ schedule was kept in common, the burden is heavily
\nupon the plaintiffs to prove.  The plaintiffs would state that `A’ schedule was
\nallotted to the first  defendant and some other properties were allotted to the
\nsecond defendant.  It is a vague statement and they have not given particulars
\nabout some other properties which were allotted to the second defendant.
\nTherefore, the presumption is that the `A’ schedule was allotted to the first
\ndefendant and the `B’ schedule was allotted to the second defendant.\n<\/p>\n
\t\t17.The only impediment is that while selling the `B’ schedule
\nproperty under Ex.B2, the second defendant and his sons  were also added as
\nparties and the recitals would read that “fhyk; brd;WBghd ek; jfg;gdhh;
\nbts;isad; tHpapy; ekf;F ghj;jpakhdJk; ek; jfg;gdhh; fhyj;jpByBa 2tJ egUf;F
\nghfkhf xJf;fp” It doesn’t stop there, but, further states that “ehsJ Bjjp tiu
\nehA;fBs rh;f;fhh; thptifawhit brYj;jpf;bfhz;L vA;fsJ iftrk; itj;J mDgtk; bra;J
\ntUk; fPH;f;fz;l g[d;bra; epyj;ij vA;fspd; bghJf;FLk;g Bjitf;fhf buhf;fkha;
\nbgw;Wf;bfhz;lgo.”\n<\/p>\n
\t\t18.The recitals would show as if the `B’ schedule was allotted to
\nthe second defendant and further show that they were still in common enjoyment
\nby the joint family.  Even assuming  that it was kept in common, the sale is for
\nthe family necessity. The minor children of the first and second defendants were
\nrepresented by the father guardian, so the sale is by the joint family members.\n<\/p>\n
\t\t19.The instrument has to be read in whole and the intension of the
\nvendors seems to be that though the properties were allotted to the share of the
\nsecond defendant, it was held in common and was sold for family necessity. The
\nminors’ shares in a joint family property can be alienated if it is soled for
\nfamily necessity.  The plaintiffs have not objected that it was not for the
\nfamily necessity. Therefore, the sale under Ex.B2 is a valid sale and it was for
\nfamily necessity and the plaintiffs have no right in the `B’ schedule property.\n<\/p>\n
\t\t20.As far as `A’ schedule is concerned the first defendant has not
\nobjected for the partition.  It is admitted that `A’ schedule was allotted to
\nthe first defendant and the plaintiffs have also shares in the property.
\nTherefore the plaintiffs are entitled for a partition as far as `A’ schedule is
\nconcerned. The substantial questions of law are answared accordingly.\n<\/p>\n
\t\t21.As far as `A’ schedule property is concerned the plaintiffs are
\nentitled for partition as prayed for and as far as `B’ schedule is concerned it
\nwas sold for a family necessity for the joint family members including the
\nminors and therefore, they are  not entitled for a share.  The partition for `A’
\nschedule is granted. The relief claimed for partiion of `B’ schedule is
\ndismissed.\n<\/p>\n
\t\t22.In the result, the second appeal is partly allowed and the decree
\nand judgment of the first appellate court is modified. Partition for `A’
\nschedule is granted in favour of the plaintiffs.  No costs.\n<\/p>\n
am<\/p>\n
To<\/p>\n
1.The Principal District Court,
\n  Ramnad.\n<\/p>\n
2.The Principal District Munsif,
\n  Ramnad.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kasinathan vs Paulraj on 19 January, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-128066","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKasinathan vs Paulraj on 19 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kasinathan-vs-paulraj-on-19-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kasinathan vs Paulraj on 19 January, 2010 - 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