D. Thulasi vs D. Srinivasan

T. Mathivanan, J.—This Memorandum of grounds of Appeal has been directed against the Judgment and Preliminary Decree dated 5.8.2008 and made in O.S. No. 5845 of 2007, on the file of the learned VI Additional Judge, City Civil Court, Chennai.

The Appellant herein us the Third Defendant in the Suit in O.S. No. 5845 of 2007. Whereas, the First Respondent is the Plaintiff and the Respondents 2 and 3 are the Defendants 1 and 2 respectively.

The Appellant and the Respondents are the sons and daughters of K. Dillibabu and D. Sarojini. The First Respondent herein has filed the Suit in O.S. No.5845 of 2007 against the Respondents 2 and 3 and the Appellant as the Defendants 1 to 3 seeking the relief of partition of A and B Schedule properties specified in the Plaint and to allot 1/4th share and hand over it''s separate possession or in the alternative to sell the Suit properties specified in Schedule-A and B and give his share, from the sale proceeds.

He has also sought a direction to the Appellant herein to render statement of account for the rental income accrued from the B-Schedule property and to pay 1/4th share from the rental income and also for costs.

As per the averments of the Plaint, their father K. Dillibabu has acquired the House property bearing No.57/25, Jubilee Road, West Mambalam, Chennai-600 033, which has been described in the Plaint A-Schedule property through a Judgment and Decree dated 18.8.1996 and made in C.S. No. 278 of 1975, on the file of this Court. It is pertinent to note here that the above Suit in C.S. No. 278 of 1975 was filed before this Court for partition and besides A-Schedule property, their father K. Dillibabu has purchased a Flat bearing No.4. Mahalakshmi Flats, Ground floor, Door Nos. 19 and 20, Giri Street, West Mambalam, Chennai-600 033 in the name of his wife D. Sarojini, being the mother of the Appellant as well as the Respondents, under a registered Sale Deed dated 15.2 1996 and registered as Document No. 1058 of 1996, which has been described in the B-Schedule of the Plaint.

The Appellant is said to have not been in good terms with her husband and as such their parents had permitted her to occupy the Flat premises described in B-Schedule.

Their father K. Dillibabu had died on 28.6.1999 and then mother D. Sarojini had also predeceased their father on 14.12.1998. After the demise of their parents, the properties described in A and B-Schedule have been devolved on the First Respondent, the Appellant and the Respondents 2 and 3 as they being the surviving Legal Heirs.

The Appellant, who was permitted by their parents to occupy the flat premises described under B-Schedule had joined with her husband and let out the some for rent and receiving the rental income at the rate of Rs. 2,500/- per mensum.

The house property described in Plaint A-Schedule is consisting of ground and first floor. The Third Respondent and the Appellant are in occupation of the ground floor, whereas the Second Respondent/First Defendant has been in occupation of the first floor.

The First Respondent, who is the Plaintiff in the Suit has claimed that since he being the elder son of K. Dillibabu and D. Sarojini, is entitled for his legitimate 1/4th share both in A and B Schedule premises and he is also entitled to have 1/4th share in the rental income accrued from the flat premises described in the Plaint B-Schedule. Therefore, the First Respondent was constrained to file the above Suit for partition as afore stated.

The Respondents 2 and 3/Defendants 1 and 2 in their respective Written Statement have stated that they have no objection to pass a Preliminary Decree for partition in respect of Suit Schedule properties by metes and bounds as requested by the First Respondent/Plaintiff.

But, the Appellant, who is the Third Defendant has given a strong contest to the case of the Plaintiff by filing her Written Statement saying that pursuant to the Compromise Decree dated 18.8.1976 and made in C.S. No. 278 of 1975, the following properties were allotted to her father. They are :

(i) Agricultural lands measuring a total extent of 5.35 Acres, comprised in Survey No. 156/1 (9 Cents); 151/1 (56 Cents); 121/2 (7 Cents), 121/3 (7 Cents); 121/4 (11 Cents); 152/3 (90 Cents); 196/1A2 (45 Cents); 196/1A1 (45 Cents); 220/4 (44 Cents); 152/1 (1 Acre 60 Cents; 152.2 (19 Cents) and 150 (93 Cents) situated at Thaniyampoondi Village.

(ii) Three house sites situated at Thaniyampoondi Village.

(iii) House, vacant site situated at Door No. 16-B, Jubile Road, West Mambalam, Chennai-33 (Suit Schedule ''A'' Property).

Besides the above properties, their father Dillibabu had also purchased a Flat bearing Flat No. 10, Second Floor, Lakshmi Street, Postal Colony, West Mambalam, Chennai-600 033 out of his own funds. Their mother Sarojini Ammal had also purchased a Flat bearing No.4 Door Nos. 19 and 20, Giri Street, West Mambalam, Chennai-33 (Suit Schedule-B Property) out of her own funds.

During the lifetime of their parents, they had invested the money by getting shares of various reputed Companies and debentures.

Considering her condition as she had been living separately from her husband their parents had given a Flat bearing No.4, Door Nos. 19 and 20, Giri Street, West Mambalam, Chennai (B-Schedule property) for her livelihood with full knowledge of all the Defendants and the Plaintiff.

Prior to the above settlement, their parents had also given a Flat bearing No. 10, Second Floor, Lakshmi Street, Postal Colony, West Mambalam, Chennai-600 033 to the Third Respondent/Second Defendant in view of the fact that she is a spinster.

Right from 1988, the First Respondent Plaintiff had never participated in any kind of family activities as he had eloped with his colleague one Vasumathy.

The First Respondent/Plaintiff had also never paid any amount towards the welfare of the family as well as the parents. However, their father with his generous mind had permitted the First Respondent/Plaintiff to take some of his deposits made as shares in I.T.C., and Hindustan Lever Limited (H.L.L.) with a condition that he should relinquish his claim.

The Appellant/Third Defendant has also contended in her Written Statement that during the lifetime of their parents, the Second Respondent/First Defendant was given a lump sum by their parents when he was proceeding to purchase a flat at Ramapuram. Apart from this, in the year 1990, the parents had also settled the permanent alimony to the former wife of the Second Respondent/First Defendant one Mrs. Pramila.

She has also contended that she is the sole and absolute owner in respect of B-Schedule property and therefore, she was in peaceful possession and absolute enjoyment over the same for more than a decade as it''s lawful owner.

Since she is the absolute owner of B-Schedule property, it cannot be the subject of the partition of the properties left by their father. Moreover, the Appellant/Third Defendant had already alienated the B-Schedule property and therefore, neither the First Respondent nor the Respondents 2 and 3 are entitled to putforth any kind of claim over the B-Schedule property.

In fact, the First Respondent and the Respondents 2 and 3 have mutually agreed for the absolute enjoyment of the Appellant/Third Defendant in respect of ''B'' Schedule property prior to the consent Affidavit given in O.P. No.692 of 2005 pending on the file of this Court. For the reasons afore-mentioned the Claim of Partition and of account of the rent received by the Appellant/Third Defendant with regard to the Schedule-B property does not arise.

The Appellant/Third Defendant has also contended in her Written Statement that she is in occupation of a portion of Schedule-A property and the major portion of the house in A-Schedule has been occupied by the Respondents 2 and 3/Defendants 1 and 2.

Under this circumstance, she has claimed 1/4th share in the Schedule-A property, and also contended that since this Suit is based on the piecemeal partition, it cannot be acceded to.

In his reply statement, the First Respondent/Plaintiff has contended that the Suit B-Schedule property viz., Flat bearing No. 4, Mahalakshmi Flats, Ground floor, bearing Door Nos. 19 and 20, Giri Street, West Mambalam, Chennai-600 033, was purchased by the father K. Dillibabu in the name of the mother D. Sarojini under a Sale Deed dated 15.2.1996, registered as Document. No. 1058 of 1996. Their mother D. Sarojini was a housewife and therefore, she was not having any independent source of income to purchase the property in her name.

The Appellant/Third Defendant is one of the co-owners of the B-Schedule property and as such she had only 1/4th share in the said flat premises. She had not acquired any absolute ownership or title in respect of the Schedule-B property and hence, she had no manner of right to alienate or encumber the property as stated in her Written Statement. If at all there is any alienation in respect of the Schedule-B property, it is void and not landing on the First Respondent/Plaintiff. The alleged created document in respect of B-Schedule property will not give any sanctity and the same could not be enforced under the law.

The allegation with regard to the contribution for the purchase of shares is absolutely false. On account of strained relationship between the Appellant/Third Defendant and her husband, she was permitted to reside in B-Schedule property without paying rent. The permission so granted could not be interpreted as transfer of ownership in her favour in any event as she had not been acquired any ownership or title in respect of the B-Schedule property.

As far as the flat premises given to the Second Defendant/Third Respondent is concerned, it was given under a registered Deed of Settlement by the parents as she being the spinster.

The Appellant/Third Defendant had been living separately for some time from her husband and thereafter she had reunited with her husband, which could not be the reason for her to make the claim in respect of the B-Schedule property on par with the Third Respondent/Second Defendant. The allegation with regard to the taking away of the deposits made as shares in I.T.C., and Hindustan Lever Limited (H.L.L.) are absolutely false.

Further, he has stated in his reply statement that the payment of tax has nothing to do with the ownership of the property. If the Third Defendant has really alienated the B-Schedule property, it is deemed to be a fraudulent transaction and the Appellant/Third Defendant is liable to be prosecuted in accordance with the law.

Based on the pleadings of the parties to the Suit and material proposition of facts, the Trial Court has formulated the following issues :

(i) Whether the Plaintiff is entitled to get partition in A and B-Schedule property ? If so, what is the ratio ?

(ii) Whether the Suit is bad for non-joinder of other properties ?

(iii) Whether B-Schedule property is not portionable ? And, Whether B-Schedule property is the absolute property of the Third Defendant ?

(iv) Whether the Defendants 1 and 2 are entitled to get partition ? If so what is the ratio ?

(v) To what other relief the Plaintiff and the Defendants are entitled to ?

In order to substantiate their respective cases, the parties to the Suit were directed to face the trial. The First Respondent being the Plaintiff had examined himself as PW1 and during the course of his examination Exs. A1 to A7 were marked. On the other hand, the Second Respondent herein, who is the First Defendant in the Suit had examined himself as DW1. However, no documentary evidence was adduced on his behalf.

On appreciation of the evidences both oral and documentary and other materials available on record, the learned Trial Judge had proceeded to pass a Preliminary Decree as prayed for on 5.8.2008.

Challenging the Judgment and Decree dated 5.8.2008, the Third Defendant alone has preferred this Appeal.

Heard Mr. S. Bharath, learned Counsel appearing for the Appellant, Mr. L. Damodharan, learned Counsel appearing for the First Respondent, Mr. R. Bharath Kumar, learned Counsel appearing for the Second Respondent and Mr. K. Bijai Sundar, learned Counsel appearing for the Third Respondent.

Mr. S. Bharath learned Counsel appearing for the Appellant has projected his arguments mainly on the following two grounds :

(i) Though a specific plea has been taken out by the Appellant/Third Defendant in her Written Statement that the Suit was filed for partial partition without inclusion of several properties purchased by father, the Trial Court without analysing the intrinsic value of the contention raised on behalf of the Appellant/Third Defendant had proceeded to pass a Preliminary Decree as prayed for by the First Respondent/Plaintiff, which is in the eyes of law liable to be set aside. And

(ii) The Trial Court had indeed decided the Suit ex parte as against the Appellant/Third Defendant while the Respondents 2 and 3/Defendants 1 and 2 have been sailing along with the First Respondent/Plaintiff.

Before going into the merits of the case, at the outset this Court would like to place it on record that despite filing of Written Statement by the Appellant/Third Defendant, she never participated in the trial. The First Respondent being the Plaintiff was examined as PW1., on 15.4.2008.

The Respondents 2 and 3 herein being the Defendants 1 and 2 have categorically stated in their respective Written Statement that a Preliminary Decree as prayed for by the First Respondent/Plaintiff might be passed allotting each 1/4th share both in A and B-Schedule properties.

The Second Respondent being the First Defendant had also examined himself as DW1 and in his proof Affidavit he has stated that since there is no dispute regarding the status of the parties to the Suit, this Court might pass a Preliminary Decree for Partition of Suit Schedule properties by metes and bounds into four equal shares and allot one such share to him.

Further, he has stated that after passing of Preliminary Decree, if the parties fail to divide their shares by metes and bounds, an Advocate Commissioner be appointed for the purpose of effecting division of properties as per the Preliminary Decree.

In so far as the Respondents 2 and 3/Defendants 1 and 2 are concerned, they have no objection or they have no dispute with regard to the claim of the First Respondent/Plaintiff.

But, in so far as the Appellant/Third Defendant is concerned, she has claimed that she has been in occupation of a portion of Plaint A-Schedule property and that on considering her helpless position living separately from her husband, along with her son, their parents had given the B-Schedule property to her and thereby she had become the absolute owner of the B-Schedule property.

But, as argued by the learned Counsel appearing for the Respondents, the Appellant/Third Defendant has not chosen to produce any acceptable legal evidence, to substantiate her case.

On verification of the records it is apparent that the First Respondent/Plaintiff was examined as PW1 as early as on 15.4.2008. During the course of his examination Exs.A1 to A7 were marked and for the cross-examination of D1 to D3, the Suit stood posted to 22.4.2008. Thereafter, it appears that PW 1 was cross-examined by D1 and D2 i.e., Respondents 2 and 3 on 28.4.2008. Thereafter for the purpose of cross-examination of the Appellant/D3, the Suit was posted to 4.6.2008, 10.6.2008, 17 6.2008. Even after adequate chances were given to the Appellant/Defendant she had not chosen to cross-examine PW 1 and therefore, the Trial Court had no other go excepting to close the evidence of PW1 on 17.6.2008. It is also revealed that the Second Respondent/First Defendant was examined as DW1. Then on 24.7.2008 the Suit stood posted for examination of the Witnesses on the part of the Appellant/D3. Since they had not turned up to examine on either side, their was not other go for the Trial Court excepting to close their side of evidence on 24.7.2008. Then on 28.7.2008 arguments were heard on both sides and Judgment was pronounced on 5.8.2008.

Having been contested and projected a strong objection to the claim of the First Respondent/Plaintiff, it is incumbent on the part of the Appellant/Third Defendant to prove her case.

On the other hand, the case of the First Respondent/Plaintiff has been very well supported by the Respondents 2 and 3 being the Defendants 1 and 2 as they are the sons and daughters born to K. Dillibabu and D. Sarojini.

It is obvious to note here that the Flat bearing No.4, Mahalakshmi Flats, Ground floor, Door Nos. 19 and 20, Giri Street, West Mambalam, Chennai-600 033 was, as per the evidence given by PW1, purchased by their father K. Dillibabu in the name of his wife D. Sarojini under a Sale Deed dated 15.2.1996 and registered as Document No.1058 of 1996. The copy of the Sale Deed was marked as Ex.A2.

It appears from the Judgment of the Trial Court that the Appellant/Third Defendant had not only cross-examined, PW1, but also not appeared and contested the Suit. It is also revealed that the Respondents 2 and 3/Defendants 1 and 2 had alone contested the Suit. The laxity on the part of the Appellant/Third Defendant in abstaining herself from cross-examining PW1 as well as DW1, can not be taken advantage to come and say before this Court being the Appellate Court that she was not given an opportunity to cross-examine PW1.

Mr. S. Bharath, learned Counsel appearing for the Appellant/Third Defendant has argued that the Decree dated 5.8.2008 is nothing but an ex parte Decree, which is liable to be set aside and that the Appellant/Third Defendant be given an opportunity to putforth her case.

This argument is not able to be countenanced.

With regard to the other contention that several properties were omitted to be included in the Suit and that the Suit for partial partition is not maintainable, the learned Counsel appearing for the First Respondent/Plaintiff has argued that while their father was alive he had alienated other properties and that the properties specified under A and B-Schedule alone are available for partition, and excepting these two properties, no other properties are available for partition.

He has also argued that in pursuant to the Preliminary Decree, a Petition to pass the Final Decree was filed and in that Application an Advocate Commissioner was appointed. The learned Advocate Commissioner after visiting the Suit property had filed a report saving that the properties are not feasible for division and therefore the First Respondent/Plaintiff had filed an Application before the Trial Court to sell the properties.

In his Proof Affidavit, PW1 has stated that the Appellant/Third Defendant was permitted to occupy the Flat premises, which has been described under B-Schedule in the Plaint and after joining with her husband, she had been living in the said Flat, which has been described under B-Schedule and subsequently she had let out the B-Schedule property and has been collecting the rent at the rate of Rs. 2,500/- per mensum.

She has also stated that the House property bearing No.57/25, Jubilee Road, West Mambalam, Chennai-600 033 is consisting of ground floor and first floor and that the Second and Third Defendants have been residing in the ground floor, and that the Third Defendant had let out a portion occupied by her for rent and receiving the rents.

He has also stated that the First Defendant, who is the Second Respondent herein has been in occupation of the first floor of A-Schedule property.

On perusal of the Judgment of the Trial Court, it would go to show that it is a final Judgment and not an ex parte Judgment as claimed by the Appellant/Third Defendant. It is also revealed that the Appellant Third Defendant had wantonly allowed the Suit to be decreed as prayed for and having been remained silent in exercising her right of participation of trial and to cross-examine PW3, now the Appellant/Third Defendant cannot conveniently project her contention saying that the Decree is an ex parte one.

As it reveals from the Written Statement of the Appellant/Third Defendant as well as from the averments of Paragraph No.4 of the Reply Statement of the First Respondent Plaintiff, the Appellant/Third Defendant has admitted herself that she had alienated the B-Schedule property in favour of her husband. Though no documentary evidence has been adduced to that effect, since she is one of the co-sharers in respect of B-Schedule properties and she is having only 1/4th share in the said flat premises, she does not have any right to sell the B-Schedule properties in favour of her husband as she is not the absolute owner.

Further if at all there is an alienation, it will bind only in respect of her 1/4th share and not the remaining 3/4th share.

Keeping in view of the above facts and having regard to all the facts and circumstances, this Court finds that the Appeal is liable to be dismissed.

Accordingly the Appeal is dismissed, confirming the Judgment and Decree dated 5.8.2008 and made in O.S. No. 5845 of 2007, on the file of the learned VI Additional Judge, City Civil Court, Chennai. Considering the relationship of the parties to the Appeal there shall be no order as to costs.