{"id":17399,"date":"2008-11-04T00:00:00","date_gmt":"2008-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chellathuraichi-d1-vs-nachiar-1st-plaintiff-on-4-november-2008"},"modified":"2017-08-19T08:09:43","modified_gmt":"2017-08-19T02:39:43","slug":"chellathuraichi-d1-vs-nachiar-1st-plaintiff-on-4-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chellathuraichi-d1-vs-nachiar-1st-plaintiff-on-4-november-2008","title":{"rendered":"Chellathuraichi (D1) vs Nachiar (1St Plaintiff) on 4 November, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Chellathuraichi (D1) vs Nachiar (1St Plaintiff) on 4 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated:04\/11\/2008\n\nCoram\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nS.A.No.700 of 2000\n\n1.Chellathuraichi\t(D1)\t\n2.Thiruvalar Selvi\t(D2)\t \t ... Appellants \/ D1 and D2\n\nvs.\n\n1.Nachiar (1st Plaintiff)\n2.Chinna Thai (2nd plaintiff)\n3.Veluthai (3rd plaintiff)\n4.Kasithai (D3)\t\t\t\t ... Respondents \/ 1st to 3rd plaintiff and\n\t\t\t\t\t     3rd defendant\n\nPrayer\n\nThis second appeal has been filed under Section 100 of CPC against the\ndecree and Judgment dated 24.09.1998 in A.S.No.80 of 1997 passed by the\nAdditional Subordinate Judge, Tenkasi, confirming the decree and Judgment dated\n28.02.1997 in O.S.No.350 of 1989 on the file of the Principal District Munsif,\nSankaran Koil.\n\n!For Appellants  ...   Mr.K.Sellathurai, Advocate\n\n^For respondents ...   Mr.S.Meenakshi Sundaram, Advocate (For R1 to R3)\n\n-----\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal has been directed against the decree and Judgment in A.S.No.80
\nof 1997 on the file of the Court of Additional Subordinate Judge, Tenkasi.  The
\ndefendants 1 & 2 in O.S.No.350 of 1989, against which A.S.No.80 of 1997 was
\npreferred, are the appellants in this second appeal, against the concurrent
\nfindings of the Courts below. The suit is for partition of plaintiffs’ 3\/5 share
\n(each 1\/5th ) in the plaint schedule property and also for mesne profits.
\n\t2,The short facts in the plaint relevant for the purpose of deciding this
\nappeal are as follows:-\n<\/p>\n
\tThe plaint schedule property originally belonged to Thirupathiya Devar.
\nThe plaint schedule properties are the self-acquired properties of the said
\nThirupathiya Devar.  He had married Shanmugathai Ammal and through her gave
\nbirth to one son by name Senthurpandiyan and daughters plaintiffs 1 to 3 and D3.
\nThe first defendant is the widow of Senthurpandiyan, The 2nd defendant is her
\ndaughter. The plaint schedule property was enjoyed in common by Shanmugathai
\nAmmal – wife of Thirupathiya Devar, their son Senthurpandiyan, their daughters
\nplaintiffs 1 to 3 & D3.  Some 11 years back Thirupathiya Devar died leaving the
\nplaintiffs, D3, Shendurpandiyan – husband of D1, and his wife Shanmugathai Ammal
\nas his legal heirs.   Senthurpandiyan also  pre-deceased his mother Shanmugathai
\nAmmal about 10 years back. Thereafter, Shanmugathai Ammal and other daughters
\nviz. Plaintiffs 1 to 3 & D3 were enjoying the plaint schedule property in
\ncommon.  After the death of Shanmugathai Ammal, the defendants failed to give
\ntheir due share in the income derived from the plaint schedule property to the
\nplaintiffs.  When the plaintiffs made a demand for partition of the plaint
\nschedule property in the year 1989, the defendants even though agreed for
\npartition, without any reason are delaying the same. Hence, the suit for
\npartition for plaintiffs’ 3\/5 share in the plaint schedule property and for
\nmesne profits.\n<\/p>\n
\t3.The defendants 1 & 2 have filed a joint written statement, which was
\nadopted by the defendants, as follows:-\n<\/p>\n
\tThe plaint schedule property is the ancestral property of  Thirupathiya
\nDevar and his son Senthurpandiyan.  Thirupathiya Devar died on 18.10.1976.  His
\nson Senthurpandiyan also died some 9 . years back.  The first defendant is the
\nwidow of the said Senthurpandiyan.  The second defendant is the only daughter of
\nSenthurpandiyan and  Chellathuraichi (D1).  The marriages of plaintiffs 1 to 3
\nand D3, who are the daughters of Thirupathiya Devar, were celebrated by
\nThirupathiya Devar during his life time.  During their marriage jewels and other
\nmovable properties like utensils etc., were given by Thirupathiya Devar as
\n‘Shreedhanam’ and all of them were living with their husband in their house.
\nThirupathiya Devar’s wife Shamugathai Ammal died in the year 1978.  Thirupathiya
\nDevar while he was alive had executed a Will dated 19.07.1976 in favour of his
\nonly son Senthurpandiyan bequeathing all his movable and immovables.  The said
\nWill dated 19.07.1976 is the last Will and Testament of Thiurpathiya Devar.
\nAfter the death of Thirupathiya Devar, Senthurpandiyan became entitled to all
\nthe movable and immovable properties of Thirupathiya Devar as per the terms of
\nthe said Will.  Till his death, Senthurpandiyan was maintaining his mother
\nShanmugathai Ammal, who died in the year 1978.  The last rites of Shanmugathai
\nAmmal was performed by Senthurpandiyan. After the death of Senthurpandiyan, D1 &
\nD2 became entitled to the plaint schedule properties as the legal heirs of
\nSenthurpandiyan and were in possession and enjoyment of the suit properties. The
\nclaim of the plaintiffs that the plaint schedule properties are the self-
\nacquired properties of Thiurpathiya Devar and that they are each entitled to
\n1\/5th share in the suit properties are all claimes of vexatious nature.  The
\nplaintiffs are also not entitled to claim any mesne profits in the suit. After
\nthe execution of the Will on 19.07.1976 in respect of the suit properties in
\nfavour of his son Senthurpandiyan, the plaintiffs are not entitled to claim any
\nshare in the plaint schedule properties.  The defendants are in possession and
\nenjoyment of the plaint schedule properties without any interruption for more
\nthan the statutory period of 12 years and thus have prescribed title to the
\nplaint schedule property by way of adverse possession.   The plaintiffs have no
\ncause of action to file the suit.  The Court fee paid by the plaintiffs is not
\ncorrect.  Hence, the suit is liable to be dismissed with costs.\n<\/p>\n
\t4.On the above pleadings the learned trial Judge has framed 8 issue for
\ntrial.  On the side of the plaintiffs, 3rd plaintiff has examined herself as
\nP.w.1 and exhibited Ex.A.1 and Ex.A.2.  The first defendant was examined as
\nD.W.1 besides examining D.W.2 and D.W.3, the two attestors to the alleged Will
\nexecuted by Thiurpathiya Devar dated 19.07.1976.  Ex.B.1 to Ex.B.22 were marked
\non the side of the defendants.  The learned trial Judge, after meticulously
\ngoing through the evidence both oral and documentary,  has decreed the suit in
\npart thereby declaring the plaintiffs’ 25\/180th share in the plaint schedule
\nproperty and relegated the question of mesne profits to a separate proceedings.
\nAggrieved by the findings of the learned trial Judge, the defendants 1 and 2
\nhave preferred A.S.No.80 of 1997 before the first appellate judge, who, after
\ngiving due deliberations to the submissions made by the learned counsel on both
\nsides, finding no ground for interfering with the findings of the learned trial
\nJudge, has dismissed the appeal thereby confirming the decree and judgment of
\nthe learned trial Judge, which necessitated the defendants 1 & 2 to prefer this
\nsecond appeal.\n<\/p>\n
\t5.The following Substantial Questions of law are involved for
\ndetermination in this second appeal?\n<\/p>\n
\t(1)In the presence of valid Will, whether the partition suit is
\nmaintainable?\n<\/p>\n
\t(2)Whether the exclusive and uninterrupted possession for more then
\nstatutory period will confer title by Adverse possession?
\nThe following additional Substantial Question of law has been formulated for
\ndetermination on 04.11.2008:-\n<\/p>\n
\tTo what share the paties are entitled?\n<\/p>\n
\t6.Heard the learned counsel Mr.K.Sellathurai appearing for the appellants
\nand learned counsel Mr.S.Meenakshi Sundaram appearing for the respondents and
\nconsidered their rival submissions.\n<\/p>\n
\t7.Substantial Question of law No.1:-According to the defendants 1 & 2 the
\nplaint schedule property is the ancestral property of Thirupathiya Devar, the
\nfather of the plaintiffs and third defendant and father-in-law of the first
\ndefendant and the grand-father of the second defendant.  Per contra, it is the
\ncase of the plaintiffs that the plaint schedule perperty is the self-acquired
\nproperties of late Thirupathiya Devar.  Having admitted in their written
\nstatement as to the effect that the plaint schedule property is the ancestral
\nproperty of Thirupathiya Devar and his son Senthurpandiyan, the contesting
\ndefendants 1 & 2 would claim that Thirupathiya Devar while he was alive had
\nbequeathed the plaint schedule property under his last Will and Testament dated
\n19.07.1976, Ex.A.22, in favour of his only son Senthurpandiyan, the husband of
\nthe first defendant and the father of the second defendant.   To prove Ex.A.22 –
\nunregistered Will on the side of the defendants, D.W.2 & D.W.3, the testators of
\nthe Will Ex.A.22, were examined.   D.W.3 is the father of D1 and the father-in-
\nlaw of late Senthurpandiyan.  Even though he would depose that he has attested
\nEx.A.22-Will, his evidence was not corroborated by the other attestors to
\nEx.A.22- Will viz., D.W.2.  According to D.W.2, the testator viz., Thirupathiya
\nDevar had scheduled the property which is the subject matter of Ex.A.22-Will in
\nEx.A.22-Will showing the survey number and extent.  But there is no schedule of
\nproperty to Ex.A.22-Will and there is no survey number or extent for the
\nproperty bequeathed mentioned in the Will.  Further there are many
\ncontradictions in his deposition as regards Ex.A.22-Will were pointed out by the
\nCourts below and the concurrent findings of the Courts below  is that the
\ncontesting defendants have failed to prove Ex.A.22-Will in accordance with law.
\nAdmittedly Ex.A.22 is an unregistered Will and the burden is heavily on the
\ncontesting defendants 1 & 2 to prove Ex.A.22-Will, beyond any reasonable doubt.
\nBut the defendants have not discharged their onus required for proving the Will\n<\/p>\n
– Ex.A.22 as per the provisions contemplated under Section 68 of the Evidence
\nAct.  Hence,     I hold on Substantial Question of Law No.1 that since the Will\n<\/p>\n
– Ex.A.22 is not proved in accordance with law, the suit for partition is
\nmaintainable.\n<\/p>\n
\t8.Substantial Question of Law No.2:- To show their possession in respect
\nof the plaint schedule property, the defendants 1 and 2 have filed Ex.B.12 to
\nEx.B.15 – tax receitps and Ex.B.16-patta and also Ex.B17 to Ex.B.21, house tax
\nreceipts.   Ex.B.12 to Ex.B.15 – land tax receipts are for the fasali 1393-94
\nand for 1395 only.  One of the land tax receipts in the name of Senthurpandiyan
\nis for the fasli 1386-87.  Ex.B.17 to Ex.B.21 – house tax receipts also show
\nthat house tax was paid for Door NO.83 by D1 for the period 1987-88, 1988-89 &
\n1989-90 and one house tax receipt for 1978-79 stands in the name of
\nSenthurpandiyan. So apart from these tax receipts, there are no tax receipts
\nproduced by the defendants 1 & 2 to show that they in continuous, uninterrupted
\npossession of the plaint schedule property for more than the statutory period to
\nclaim that they have prescribed title by way of adverse possession to the plaint
\nschedule property. Hence, I hold on Substantial Question of Law No.2 that the
\ndefendants 1 & 2 have failed to prove that they are in exclusive uninterrupted
\nand continuous possession of the plaint schedule property for more than the
\nstatutory period to claim title by way of adverse possession.\n<\/p>\n
\t9.Additional Substantial Question of Law:- Even according to D1 & D2, the
\nsuit property is the ancestral properties of Thirupathiya Devar and his son
\nSenthurpandiyan. So Thirupathiya Devar is entitled to one half share and his son
\nSenthurpandiyan is entitled to one half share.  Thirupathiya Devar died on
\n18.10.1976 as evidenced under Ex.A.1-death extract. So the father’s one half
\nshare devolved on his wife Shanmugathai Ammal and his daughters plaintiffs 1 to
\n3 & D3 and his son Senthurpandiyan equally.  So, the mother Shanmugathai Ammal,
\nplaintiffs 1 to 3,  D3 and son Senthurpandiyan are all each entitled to 1\/12
\nshare, besides this, Senthurpandiyan was also entitled to one half share.   So,
\nthe share to which Senthurpandiyan was entitled to in the plaint schedule
\nproperty come to 7\/12th  share (1\/2 + 1\/12  = 7\/12).  D1 as D.W.1 in her
\nevidence would admit that her husband Senthurpandiyan pre-deceased her mother-
\nin-law Shanmugathai Ammal. There is no contra evidence adduced by the parties to
\nshow that Senthurpandiyan died after the death of Shanmugathai Ammal on 3.5.1980
\nas seen from Ex.A.2, death extract relating to Shanmugathai Ammal.  So, the
\n7\/12th share of Senthurpandiyan devolved on his mother Shanmugathai Ammal, his
\nwife D1 and his daughter D2 in equal moieties i.e, mother is entitled to 7\/36th
\nshare (1\/3 of 7\/12),  D1 is entitled to 7\/36th share (1\/3 of 7\/12), D2 is
\nentitled to 7\/36th share (1\/3 of 7\/12).  Shanmugathai Ammal, mother, was already
\nentitled to 1\/12th share and after the death of her son Senthurpandian, she also
\nderived 7\/36th share. So the total share to which Shanmugathai Ammal was
\nentitled comes to 5\/18 [1\/12  + 7\/36 = 10\/36 = 5\/18].  After the death of the
\nmother Shanmugathai Ammal, under section 15 of the Hindu Succession Act, her
\ndaughters plaintiffs 1 to 3 & D3 are each entitled to 1\/4th share of 5\/18th
\nshare (=5\/72).  The first plaintiff is thus became entitled to 11\/72nd  share
\n(1\/12 + 5\/72 = 11\/72),  the second plaintiff is entitled to 11\/72nd  share
\n(1\/12 + 5\/72 = 11\/72), the third plaintiff is entitled to 11\/72nd  share  (1\/12
\n+ 5\/72 = 11\/72) and D3 is entitled to 11\/72nd  share  (1\/12 + 5\/72 = 11\/72) and
\nD1 is entitled to 7\/36th share = 14\/72nd share.  D2 is entitled to 7\/36th share
\n= 14\/72nd share.   Under such circumstances, the preliminary decree for
\npartition of plaintiffs’ 11\/72nd share each is to be passed since the other
\ndefendants have not paid the Court fee.  On payment of Court  fee before the
\ntrial Court at the time of passing of final decree, they are also entitled to
\nthe above said of shares.\n<\/p>\n
\t10.In fine, the appeal is allowed in part and the decree and judgment of
\nthe learned first appellate Court in A.S.No.80 of 1997 on the file of the
\nAdditional Subordinate Judge, Tenkasi, is modified as follows:-  A preliminary
\ndecree for partition of plaintiffs’ 11\/72nd share each is passed.  In other
\nrespects the appeal is dismissed confirming the decree and judgment of the
\nlearned first appellate Court in A.S.No.80 of 1997 on the file of the Additional
\nSubordinate Judge, Tenkasi. No costs.\n<\/p>\n
ssv<\/p>\n
To,\n<\/p>\n
1.The Additional Subordinate Judge, Tenkasi,<\/p>\n
2.The Principal District Munsif, Sankaran Koil.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chellathuraichi (D1) vs Nachiar (1St Plaintiff) on 4 November, 2008 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) […]<\/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-17399","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChellathuraichi (D1) vs Nachiar (1St Plaintiff) on 4 November, 2008 - 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\/chellathuraichi-d1-vs-nachiar-1st-plaintiff-on-4-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chellathuraichi (D1) vs Nachiar (1St Plaintiff) on 4 November, 2008 - 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