A.M.D. Nagendran vs B. Shankunthala

Mr. R. Karuppiah, J.—This Appeal Suit has been filed as against the Judgment and Decree dated 22.09.2008 made in O.S.No.5 of 2008 on the file of the Additional District and Sessions Court / Fast Track Court, Virudhunagar.

For the sake of convenience, the parties arrayed in the suit is referred in this appeal.

The appellant, who is the 1st plaintiff, and respondents 3 to 5, who are plaintiffs 2 to 4 in the Suit, jointly filed a suit for partition of their half share in the suit properties. Briefly the case of the plaintiffs is that the suit properties originally belonged to one Rajammal by virtue of sale deed, dated 31.08.1970 and she died intestate on 13.09.1996. The Rajammal had two daughters viz., Leelavathi and the first defendant herein. The said Leelavathi already died intestate on 04.11.1982, leaving behind the plaintiffs and the 2nd defendant, as her legal heirs. Therefore, the plaintiffs along with 2nd defendant are jointly entitled to half share and the 1st defendant is entitled to remaining half share in the suit schedule properties. Hence, this Suit for partition of plaintiffs half share in the suit properties.

The first defendant filed written statement in which it is admitted that the suit properties originally belonged to Rajammal by virtue of sale deed, dated 31.08.1970 and the said Rajammal had two daughters viz., Leelavathi and the first defendant herein and the said Rajammal died on 13.09.1996. Further admitted that the said Leelavathi already died intestate on 04.11.1982, leaving behind the plaintiffs and the 2nd defendant, as her legal heirs. According to the first defendant, while the grandfather of the plaintiffs and father of the first defendant A.K.P.N.Natarajan i.e., husband of Rajammal, decided to divide his properties, which stand in his name by metes and bounds equally between his daughters Leelavathi and first defendant. The properties were indivisible in nature and for better use, allotted huge portion of properties to Leelavathi than the portion allotted to the 1st defendant. Hence the suit properties, which stands in the name of his wife N.Rajammal were allotted to the first defendant so as to equal the share allotted to Leelavathy. All the parties accepted the above said arrangement. Therefore, all the properties belonging to A.K.P.N.Natarajan and N.Rajammal have been already partitioned by metes and bounds among their legal heirs and also given effect to and acted upon such partition. Accordingly, the first defendant, has become the sole, absolute, exclusive title and possession over the suit properties and also enjoyed the properties from the date of partition. The L.Rs of the first defendant carrying on business in the suit properties. Therefore, the suit is barred under the principles of estoppel and limitation. Further, the plaintiffs have not paid proper court fee and the plaintiffs are not entitled to any relief as prayed for in the suit.

The 2nd defendant in the above said suit filed separate written statement in which it is averred as stated in the written statement filed by the first defendant.

The plaintiffs filed reply statement in which denied the averments stated in the written statements that during the life time of A.K.P.N.Natarajan had allotted the suit properties to the 1st defendant in order to equal share allotted to the mother of the plaintiffs and 2nd defendants. In fact, A.K.P.N.Natarajan during his life time had partitioned only his properties. The suit properties which belonging to Rajammal were kept in common without any partition. The suit properties stand only in the name of Rajammal in Municipal records. The plaintiffs 1 and 2 and defendants 1 and 2 and one A.M.Danushkodi constituted a partnership firm in the name and style of "M/s. A.K.P.N. Natarajan Nadar and doing the business in the Suit properties till 1999 but the firm was dissolved in the year 1999 since incurred a heavy loss. The above said fact clears shows that the suit properties were kept in common and not partitioned as stated by the defendants. Therefore, the plaintiffs are entitled to partition, as prayed for in the suit.

Considering the above said pleadings, the trial Court has framed the following issues and additional issue for consideration:-

Whether the plaintiffs are entitled for � share in the plaint schedule properties or not?

2.To what relief?

Additional Issue

3.Whether the Court fee paid by the plaintiffs is correct or not?

On the side of the plaintiffs, the first plaintiff deposed as P.W.1 and marked 4 documents as Exs.A1 to A4. On the side of the defendants, two witnesses were examined as D.Ws.1 and 2 and marked 8 documents as Exs.B1 to B8.

The trial Court discussed about the oral and documentary evidence adduced on either side and held that the plaintiffs were excluded from the possession of the schedule properties and the first defendant alone is in the exclusive possession in the schedule properties and therefore, the plaintiffs ought to have paid the Court fee under Section 37(1) of Tamil Nadu Court Fees and Suit Valuation act, 1955 and hence, the Court fee is not correctly paid by the plaintiffs and answered the additional issue accordingly.

The trial Court discussed regarding the issue No.1 and held that the suit properties is in continuous and exclusive possession of the first defendant and her son and the earlier partition through family arrangement alleged by the 1st defendant is true and since the schedule properties already partitioned between the parties, the plaintiffs are not entitled to for further partition as prayed for in the suit and answered the first issue accordingly. In view of answer in first issue and additional issue, the trial Court has answered, the 2nd issue, as the plaintiffs are not entitled to any relief as prayed for in the suit and finally dismissed the Suit with costs of the first defendant.

Aggrieved over the above said decree and judgment passed by the trial Court, the first plaintiff in the suit filed this Appeal Suit.

Both sides admitted that the suit properties originally belonged to one Rajammal, as per sale deed, dated 31.08.1970. The first plaintiff deposed as P.W.1 and he has clearly deposed that the suit properties originally belonged to Rajammal as per Ex.A1, sale deed, dated 31.08.1970. The first defendant deposed as D.W.1 and in his evidence he clearly admitted that the suit properties belonged to Rajammal. D.W.2, the sister''s son of the above said Rjammal viz., Dhanapalan also admitted at the time of evidence that the suit properties exclusively belonging to Rajammal. Therefore, it is not in dispute the suit properties originally belonging to Rajammal as per Ex.A1, sale deed. Both sides admitted that the above said Rajammal''s husband one A.K.P.N.Natarajan and he died on 11.12.1982 and they had two daughters viz., Leelavathi and the first defendant viz.,B.Shankunthala and the elder daughter Leelavathi died on 04.11.1982. It is also admitted that Leelavathi died leaving behind the plaintiffs and 2nd defendant as her legal heirs. Therefore, the above said relationship between the parties are not in dispute. The plaintiffs filed the suit for partition by stating that the plaintiffs and 2nd defendant, as legal heirs of the deceased Leelavathi, are entitled to half share and the first defendant, as daughter of Rajammal, entitled to half share.

Considering the dispute between the parties, the following points for consideration framed in this appeal:-

Whether the alleged oral partition, as pleaded by the first defendant, is true and valid?

Whether the plaintiffs and 2nd defendant are entitled to half share in the suit properties?

Whether the Court fee paid by the plaintiffs in the Suit is correct?

To what relief, the plaintiffs are entitled to?

The case of the defendants is that the husband of Rajammal viz., A.K.P.N.Natarajan, while he was alive, divided his properties by metes and bounds between his daughters viz., Leelavathi and the first defendant. But some properties were indivisible in nature and hence, he allotted major portion in his properties to Leelavathi and balance portion was allotted to the first defendant and to compensate the loss suffered by the first defendant, the suit properties stood in the name of his wife Rajammal was allotted to the share of the first defendant in order to equal share allotted to Leelavathi and therefore, the first defendant entitled to the suit properties as absolute owner and also the suit properties are in exclusive possession and enjoyment of the first defendant and his legal heirs from the date of the above said partition. Further, the claim of the plaintiff is not maintainable as barred by limitation and also barred under the principles of estoppels and no cause of action and therefore, the plaintiffs are not entitled for partition as prayed for in the plaint.

Since the defendants admitted that the suit properties originally belonged to Leelavathi but pleaded her husband divided the properties belonged to A.K.P.N.Natarajan and at that time, major portion was allotted to Leelavathi and so as to equal between his daughters, the suit properties was allotted to the first defendant and therefore, the onus is on the defendants to prove the above said allotment in the family arrangement by adducing reliable oral and documentary evidence.

In the instant case, the 2nd defendant, who is one of the son of deceased Leelavathi, brother of plaintiffs, has not come forward to give any evidence. On the side of the defendants, only the first defendant and her close relative viz one Dhanapalan deposed as D.Ws. 1 &2. In the written statement or at the time of evidence, the defendants have not stated when the alleged oral partition/arrangement was effected. Except the oral testimony of D.Ws.1 and 2, absolutely no evidence to prove the fact that the father of the first defendant viz., A.K.P.N.Natarajan allotted major portion to the deceased Leelavathi and hence, he allotted the suit properties to the first defendant in order to equal the share allotted to Leelavathi in the oral partition arrangement.

The learned counsel appearing for the appellant / 1st plaintiff pointed out that D.Ws.1 and 2 clearly admitted the case of the plaintiffs at the time of oral evidence, but the trial Court has not at all considered the above said admission. Further, the trial Court has come to conclusion on the grounds that the plaintiffs failed to issue legal notice to the first defendant prior to the suit and the 2nd defendant also filed written statement against the plaintiffs and supported the case of the 1st defendant and from 2002 to 2007, the suit properties were in possession of the first defendant and the 1st defendant satisfactorily proved the above said earlier partition / arrangement and therefore, the plaintiffs are not entitled to any share in the suit properties. The learned counsel appearing for the appellant / 1st plaintiff further submitted that the above said finding of the trial Court is perverse, illegal and unsustainable in law.

As already stated, both the plaintiffs and defendants admitted that the suit properties originally belonged to Rajammal, by virtue of Ex.A1, sale deed. In the above said circumstances, on the side of the defendants, the first defendant deposed as D.W.1 and examined his close relative one Dhanapalan as D.W.2. On the side of the defendants marked Exs.B1 to B4 property tax receipts. A perusal of the above said tax receipt reveals that all the tax receipts paid only in the name of original owner of the properties viz., Rajammal. The other documents viz., Ex.B5, Electricity receipts, dated 10.07.2008; Ex.B6, Telephone Bill receipt, dated 17.07.2008; Ex.B7, Municipal receipt, dated 14.12.2007; Ex.B8, Letter by Municipality, dated 18.12.2007 are after Suit or few days prior to Suit, since the Suit is filed on 02.01.2008. Except the above said oral and documentary evidence, no other oral and reliable evidence adduced on the side of the defendants to prove the oral partition / arrangement pleaded by them.

In the above said circumstances, a perusal of oral testimony of D.Ws.1 and 2 itself proved the case of the plaintiffs, as rightly contended by the learned counsel for the appellant / 1st plaintiff. D.W.1, who is the first defendant in the suit, deposed as under:-

ehd; vjph;tHfFiuapy; jhth brhj;J vd; jhahh; uh $k;khSf;F Mjpapy; ghj;jjpag;gl;lJ vd;W TwpapUf;fpwJ rhpjhd;. vd; jhahh; jhth brhj;J rk;k;ejkhf vJt[k; vGjpitf;fhJ 13.09.1996 md;W nwe;Jtpl;lhh; vd TwpapUf;fpBwd;. vdBt jhth brhj;ij vdJ jhahh; jhd; nwg;gJtiu mDgtpj;J te;jhh; vd;why; rhpjhd;. ehsJ Bjjptiu jhth brhj;J efuhl;rp gjpBtLfspd;go vd; jhahh; bgahpy;jhd; nUf;fpwJ vd;why; rhp. ehd; jhf;fy;bra;jpUf;Fk; gp.th Mtzk; 1 Kjy; 4 vd;jhahh; bgahpy;jhd; nUf;fpwJ vd;why; rhp. gp.th. Mtdk; 5d; go kpd;rhu fl;ldk; tHf;fpw;F gpd;dh;jhd; brYj;jpapUf;fpBwd;. bjhiyBgrp fl;lzKk; tHf;F jhf;fy; bra;j gpd;dh;jhd; brYj;jpapUf;fpBwd;. gp.th. Mtdk; 7y; vdJ bgah; ny;iy

D.W.2 deposed as under:-

jhth brhj;J uh$k;khs; vd;gtUf;F jdpj;J ghj;jpag;gl;l brhj;J vd;why; rhpjhd;"; ............. "gp.th. Mtdk; 1y; uh$k;khs; bgahpy;jhd; nUf;fpwJ. jhth brhj;ij uh$k;khs; bgahpy; nUe;J BtW vtUf;Fk; bgah; khw;wk; bra;jhy; mJ bry;yhJ vd;why; rhp jhd;

A perusal of the above said admission of the first defendant i.e., D.W.1 and his witnesses D.W.2 clearly proved that the suit properties originally belonging to Rajammal and the suit properties were in her possession till her death i.e., 13.09.1996 and also reveal that till date, the above said Rajammal name is registered in the revenue records. Therefore, the contention of the defendants that during the life time of A.K.P.N.Natarajan i.e., prior to 11.12.1982 the suit properties were allotted to the first defendant in a family arrangement / partition is not true, as rightly contended by the learned counsel for the appellant / 1st plaintiff.

On the side of the defendants, has not pleaded that the first defendant having prescribed title over the suit properties by way of ouster and adverse possession, since the plaintiffs and defendants are co-sharers in the suit properties. In the above said circumstances, one co-owner possession is deemed to be in possession of other co-owner as constructive possession. But the trial Court has held that, since the first defendant has paid tax under Exs.B1 to B4 in the name of original owner (Late)Rajammal from the year 2002 to 2007 and also relied on Ex.B5, Electricity receipts, dated 10.07.2008; Ex.B6, Telephone Bill receipt, dated 17.07.2008; Ex.B7, Municipal receipt, dated 14.12.2007; Ex.B8, Letter by Municipality, dated 18.12.2007 i.e, after suit and few days prior to the suit, the first defendant and his son are in possession in the suit properties and therefore, the plaintiffs are not entitled to the relief of partition. The above said finding is perverse and illegal, as rightly contended by the learned counsel for the appellant / 1st plaintiff. The trial Court has not considered the basic principles regarding possession of co-sharer in the joint family property and plea of adverse possession by way of ouster and also the trial Court has failed to consider the fact that the defendants have miserably failed to prove the alleged oral partition / arrangement. As already discussed, the date, month and year of the partition / arrangement has not stated in the written statement or at the time of evidence. Except the oral averments in the written statement and prof affidavit, no other documents to prove the above said alleged oral partition / arrangement or separate possession of the first defendant.

Further the case of the defendants is that only the father of the first defendant viz., A.K.P.N.Natarajan allotted the suit properties to the first defendant and not specifically stated the owner of the properties viz., Rajammal has allotted the properties to the first defendant or she relinquished her right in the suit properties in favour of the first defendant. Therefore, the contention of the defendants that the father of the first defendant viz., A.K.P.N.Natarajan allotted the suit properties to the first defendant in a oral family arrangement / partition is not all true and valid, as rightly contended by the learned counsel for the appellant / 1st plaintiff.

From the above said discussion, it is clear that the suit properties were originally belonged to Rajammal, as per Ex.A1, sale deed and till her death, she enjoined the suit properties as admitted by D.W.1 and 2 and therefore, the oral partition / family arrangement alleged by the first defendant is not proved as true and valid and hence, the plaintiffs and 2nd defendant are jointly entitled to half share in the suit properties and D1 is entitled to remaining half share and answered these two points for consideration accordingly in favour of the appellant / 1st plaintiff and as against the first respondent / first defendant.

With regard to 3rd point for consideration viz., whether the Court fee paid by the plaintiffs is correct or not is concerned, the trial Court has failed to consider the legal position. As already discussed, the first defendant has failed to prove the oral family arrangement or oral partition and also not proved the exclusive possession by way of ouster and adverse possession. In the above said circumstances, the possession of one coowner is deemed to be the constructive possession of another co-owner and therefore, the Court fee paid by the plaintiffs is correct and answered this point also in favour of the appellant / 1st plaintiff and as against the contesting 1st respondent / first defendant.

In view of the above said point for consideration viz., 1 to 3, preliminary decree has to be passed as the plaintiffs and 2nd defendant are entitled to half share in the suit properties and the first defendant is entitled to remaining half share and hence, the Appeal Suit is to be allowed and the decree and judgment passed by the trial Court is to be set aside and answered this fourth point for consideration accordingly.

In the result, the Appeal Suit is allowed and the decree and judgment passed in O.S.No.5 of 2008 by the Additional District and Sessions Court / Fast Track Court, Virudhunagar, dated 22.09.2008 is set aside and the plaintiffs and 2nd defendant are entitled to half share in the suit properties and the first defendant is entitled to remaining half share in the suit properties and preliminary decree is passed accordingly. Considering the relationship between the parties, there shall be no order as to costs.