Madras High Court
M.Ganapathy vs M.Kandan on 24 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.07.2018
CORAM
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.(MD)No.846 of 2010
and
CROS. OBJ.[MD]No.5 of 2011
S.A.[MD]No.846 of 2010:
M.Ganapathy : Appellant
Vs.
M.Kandan : Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree passed in Cross Appeal in
A.S.No.23 of 2008, on the file of the Principal District Court,
Srivilliputtur dated 30.10.2009, confirming the Judgment and Decree passed in
O.S.No.7 of 2007 on the file of the Sub-Court, Aruppukottai dated 06.02.2008.
!For Appellant : Mr.C.Vakeeswaran
^For Respondents : Mr.S.Natarajan
CROS. OBJ.[MD]No.5 of 2011:
M.Kandan : Appellant
Vs.
M.Ganapathy : Respondent
PRAYER: Cross Objection is filed under Order XLI Rule 22 of the Code of Civil
Procedure, against the Judgment and Decree passed in Cross Appeal No.23 of
2008, on the file of the Principal District Court, Srivilliputtur dated
30.10.2009, confirming the Judgment and Decree passed in O.S.No.7 of 2007, on
the file of the Sub-Court, Aruppukottai dated 06.02.2008.
For Appellant : Mr.S.Natarajan
For Respondents : Mr.C.Vakeeswaran
:COMMON JUDGMENT
This case is an exception to the age old maxim 'Blood is thicker than water'. It is a good but unfortunate exception. It is a good exception because it is difficult to find closer exceptions. Unfortunate exception because the adversaries in the instant case are blood brothers. In other words, the adversaries are siblings.
2.This litigation commenced one decade and one year ago. To be precise, it commenced on 28.02.2007, when one Ganapathy, filed a suit against his elder brother Kandan, being O.S.No.7 of 2007, on the file of 'Sub Court, Arupukottai', which shall hereinafter be referred to as 'trial Court', for the sake of convenience and clarity.
3.Prayer in the suit was for partition of plaint schedule property and separate possession of half share in the same. Plaint schedule property is a piece of land admeasuring 10 cents or thereabouts and it is situate in Aruppukottai Village, Aruppukottai Sub District in West Ramanathapuram Registration District. This property as described in the plaint mentions that there is a superstructure thereon at the time of filing of suit and it is as follows:
?nkw;F ,uhkehjg[uk; hpo> mUg;g[f;nfhl;il rg;o mUg;g[f;nfhl;il fpuhkj;jpy; igkh]; ek;gh; 963f;F rh;nt ek;gh;.102/15 g[Q;ir bkhj;jk; brz;L 0.2.0y; bjd;g[wk; brz;L 0.10 (10 brz;L) ,jpy; fpHnky; 150 moa[k;> bjd;tly; 30 moa[k; MWKfk; epyj;jpw;Fk; tlf;F> K.rp.kh.uhkK:h;j;jp brl;oahh; ghf epyj;Jf;Fk; fpHf;F> Rg;gpukzpak; epyj;Jf;Fk; bjw;F> bjd;tlyhd tPjpf;Fk; nkw;F> ,jw;Fs;shdJ. ,J mUg;g[f;nfhl;il efuhl;rp vy;iff;Fl;gl;lJ. jgrpy;brhj;jpy; jw;nghJ M];bg];lh]; fl;olk;> Xl;L fl;olk;> kpd; ,izg;g[> efuhl;rp FoePh; FHha; ,izg;g[ bfhz;lJ. giHa fjt[ vz;.9(6) g[jpa fjt[ vz;.30 MFk;.?
4.Aforesaid property shall hereinafter be referred to as 'suit property', for the sake of convenience and clarity.
5.Prayer for partition and half share is predicated on the ground that the suit property was purchased originally as vacant land by the plaintiff and defendant jointly, under a sale deed dated 13.05.1971 (Ex.A.1 = Ex.B.1).
6.Elder brother i.e., sole defendant entered appearance, filed written statement and completed pleadings. Sheet anchor plea of the defendant elder brother is that there was a oral family partition between the plaintiff and the defendant and an ancestral property at Door No.187, Virudhunagar Main Road, Aruppukottai Twon, Virudhunagar District, where the plaintiff is now residing was allotted absolutely to the plaintiff and the suit property was allotted to the defendant. It is further case of defendant that he has put up a superstructure admeasuring 70 feet East West, on the eastern portion of the suit property, at his cost and with the full knowledge of the plaintiff.
7.On the aforesaid rival pleadings, parties went to trial.
8.In the trial Court, plaintiff examined himself as P.W.1 and three documents were marked. On the side of defendant, sole defendant examined himself as D.W.1 and one Gurusamy, in whose presence the aforesaid alleged oral partition is said to have taken place was examined as D.W.2. As many as seven documents i.e., Exs.B.1 to B.7, were marked on the side of the defendant.
9.After full contest, the trial Court vide judgment and decree dated 06.02.2008, passed a preliminary decree for partition, holding that the plaintiff will be entitled to half share with a rider that the partition by metes and bounds shall be done without affecting the superstructure put up by the defendant in the suit property.
10.Defendant carried the matter in appeal by way of regular first appeal under Section 96 of 'Code of Civil Procedure, 1908', [hereinafter referred to as 'CPC' for brevity]. This first appeal is A.S.No.23 of 2008, on the file of 'Principal District Judge's Court, Virudhunagar District at Srivilliputhur', which shall hereinafter be referred to as 'first appellate Court', for the sake of convenience and clarity. Plaintiff filed Cross Objection.
11.There was full contest.
12.After full contest, vide common judgment and decree dated 30.10.2009, first appellate Court dismissed both the first appeal as well as the cross objection.
13.Aggrieved, plaintiff has filed the instant second appeal i.e., S.A.[MD]No.846 of 2010. Instant second appeal was admitted by this Court on 02.02.2011, on two substantial questions of law, which read as follows:
?1. Whether the first appellate Court has committed an error in holding that the respondent is entitled to the allotment of the area over which the construction stands towards his half share?
2. Whether the Courts below have committed an error in holding that the appellant is not entitled to a share in the superstructure??
14.Defendant has filed a cross objection in CROS. OBJ.[MD]No.5 of 2011.
15.In the memorandum of grounds of cross objection, no substantial question of law was proposed / propounded by the cross objector, in his capacity as protagonist. However, subsequently, four questions styled as substantial questions of law have been proposed and the same read as follows:
?i) From the facts and circumstance of the case whether the courts below are right in ignoring the defendant's case that there was already partition before Panchattars and the plaintiff was allotted the other ancestral property at Door No.187-A, Main Road, Virudhunagar Main Road, Aruppukottai in which he is residing as exclusive owner?
ii) When admittedly there is another family ancestral property in which the plaintiff and defendant are having their shares, whether the suit for partial partition is maintainable?
(iii)As seen from the deposition of PW1/Plaintiff and the admission therein, should not have the courts below applied the principle that admission is the best evidence and dismiss the suit for partition of the suit property alone?
(iv) At any rate, are not judgment and decree of courts below, justified in appreciating the relevant facts and circumstance and allotting the Eastern 1/2 portion to the defendant and whether that needs interference by this Hon'ble Court??
16.A perusal of the judgments of the trial Court as well as that of the first appellate Court reveals that the entire matter turns on a very narrow compass. The reason is, the plaintiff who deposed as P.W.1 in the trial Court has categorically admitted that the defendant will retain the suit property and that the house in which the plaintiff is now residing [ancestral property] shall be retained by the plaintiff. The express and explicit statement of plaintiff, deposing as P.W.1 in the trial Court, as can be culled out from the deposition placed before me as part of the records of the Court below reads as follows:
?ehd; jw;nghJ FoapUf;Fk; tPl;il ehd; itj;Jf;bfhz;L> gpujpthjpf;F mth; ,Uf;Fk; tPl;il itj;J bfhs;tJ vd;W Kothfptpl;lJ.?
17.This is on the teeth of plaintiff, denying the oral partition that reads as follows:
?vd; jfg;gdhh; capUld; ,Uf;Fk;nghnj brhj;J rk;ke;jkhf gpur;rid Vw;gl;L gQ;rhaj;J Vw;gl;;lJ vd;why; rhpay;y.?
18.This aspect of the matter has been dealt with by the trial Court and the same is articulated in paragraph No.9 of the judgment of the trial Court. The relevant portion in paragraph No.9 of the judgment of the trial Court reads as follows:
?nkYk; th.rh.1d; FWf;F tprhuiz rhl;rpaj;jpy;> ?gpujpthjp mth; ,Uf;Fk; tPl;il itj;J bfhs;tJ vd;W Kothfptpl;lJ.? vd;Wk; xj;Jf;bfhz;Ls;shh;. ,jpypUe;J thjpf;Fk;> gpujpthjpf;Fk; ,ilapy; gQ;rhaj;jhh;fs; Kd;dpiyapy; FLk;gr; brhj;Jf;fisg; gphpj;J ghfk; tha;bkhHpahf Kof;fg;gl;Ls;sJ vd;Wk;> mjpy; thjpf;F g[{h;tPf tPLk;> gpujpthjpf;F jhthr; brhj;J KGtJk; bfhLf;fg;gl;ljhf Kot[ bra;ag;gl;Ls;sJ bjhpfpd;wJ. th.rh.1d; FWf;F tprhuiz rhl;rpaj;jpy;;' mtUf;F 1970k; Mz;L jpUkzkhdJ Kjy; g[{h;tPf tPl;oy; FoapUe;J tUtjhft[k;> 1973 Kjy; gpujpthjp jhthr; brhj;jpy; tPL fl;o FoapUe;J tUtjhft[k; xj;Jf;bfhz;Ls;shh;. mt;thwhf ,UtUf;Fk; ,ilapy; tha;bkhHpahf ghfk; Vw;gl;oUe;jhYk; mjidg; bghWj;J ,UtUf;Fk; ,ilapy; ve;j Mtzk; vGjpf;bfhs;shj epiyapy; kPz;Lk; jhthr; brhj;jpy; thjp ghfk; nfhhp gpur;rid Vw;gLj;jpa[s;shh;. ,UtUf;Fk; ,ilapy; ek;g[jpl;g[ ghh;j;J ghfk; gphpj;J Kiwahf xU Mtzk; vGjpf;bfhs;sg;glhj epiyapy; Kiwahd ghfg; gphptpid xd;W bra;ag;gl ntz;oaJ mtrpakhdJ MFk;.?
19.Furthermore, the fact that plaintiff is actually residing in the aforesaid ancestral property which according to the defendant has been allotted to the plaintiff is buttressed by the very plaint itself. The address of plaintiff as in long cause title of the plaint reads as follows:
?tpUJefh; khtl;lk;> mUg;g[f;nfhl;il lt[d;> tpUJefh; bkapd; nuhL> fjt[ vz;.187 vd;w tpyhrj;jpy; FoapUf;Fk; khlrhkp kfd; ,e;J Rkhh; 60 taJs;s fzgjp.?
This establishes that plaintiff is actually residing in the aforesaid ancestral property.
20.One other aspect to be borne in mind is though one Gurusamy, who is said to be the Panchayatdhar and in whose presence the oral partition is said to have taken place is examined as D.W.2, the written statement is bereft of pleadings with regard to oral partition. Date of oral partition has also not been given. Other determinants which are necessary to constitute an oral partition as permissible in Hindu Law has not been set out. It is in this scenario that the Courts below have disbelieved the oral partition.
21.With regard to the judgment of the first appellate Court, the first appellate Court under Order XLI Rule 31 CPC, has framed four points for determination / consideration, which read as follows:
?1. thjpf;F jhthr; brhj;jpy; + ghfk; fpilf;ff; ToaJ vd;W tprhuiz ePjpkd;wk; bra;j Kot[ rhpahdjh?
2. ,e;j tHf;Fj; njitahd brhj;Jf;fisr; nrh;f;ftpy;iy vd;w njh\j;jpw;Fs;shfpa[s;sjh?
3. thjpf;F + ghfk; fpilf;ff; ToaJ vd;W Kot[ bra;j tprhuiz ePjpkd;wk;
ghfk; gphpf;Fk; nghJ jhthr; brhj;jpy; fpHf;Fg; gf;fk; gpujpthjp tPL fl;of; FoapUf;Fk; mDgtj;jpw;F ghjfk; ,y;yhjthW ghfk; gphpf;fg;gl ntz;Lbkd;WKot[ bra;J jtW vd thjp / FWf;F nky;KiwaPl;lhsh; Twpa[s;sJ rhpahdjh?
4. ,e;j nky;KiwaPL kw;Wk; FWf;F nky;KiwaPl;oy;> jug;gpdh;fSf;F fpilf;ff; Toa epthuzk; vd;d??
22.This second appeal and cross objection are before me today, for final disposal.
23.Mr.C.Vakeeswaran, learned Counsel is before this Court on behalf of appellant in the second appeal and Mr.S.Natarajan, learned Counsel is before this Court on behalf of cross objector. Cross objector is the respondent in second appeal and the appellant in the second appeal is the respondent in cross objection.
24.Mr.C.Vakeeswaran's submissions are broadly on the following lines:
?a) The trial Court has virtually passed a final decree as it has decided which part of the suit property should be allotted to the defendant.
b) The decree of the trial Court as confirmed by the first appellate Court would lead to difficulty in partition by metes and bounds. ?
25.Submissions of Mr.S.Natarajan, are broadly on the following lines:
?a) Oral partition which is permissible in Hindu Law should not have been disbelieved in the light of the admission by plaintiff who deposed as P.W.1.
b) On a demurrer, there is no illegality or infirmity in the decree passed by the trial Court [as confirmed by the first appellate Court] as it is a preliminary decree.?
26.I have considered the rival submissions and perused the records that have been placed before me. To be noted, as far as deposition of P.W.1 (plaintiff) is concerned, the same has not been filed as part of typed set of papers, but the same was available as part of the records of the Courts below, which were available for perusal and which were placed before me.
27.With regard to the oral partition, as noticed supra in this judgment, it is bereft of pleadings. Even the date of alleged oral partition has not been given. Therefore, it is not even clear as to whether the oral partition occurred prior to Ex.A.1 = Ex.B.1 i.e., prior to 1971 or after that. Besides this critical aspect of the matter, other determinants necessary for valid oral partition permissible in Hindu Law have not been set out. Therefore, the oral partition cannot be established by mere deposition of D.W.2, who is said to be one of the two panchayatdhars. To be noted, even the names of both the panchayatdhars have not been set out in the pleadings. Therefore, there is no infirmity in the Courts below disbelieving the oral partition.
28.With regard to admission of P.W.1, learned Counsel Mr.S.Natarajan, pressed into service a judgment of the Hon'ble Supreme Court reported in 2010 (5) CTC 364 [S.R.Srinavasa and others Vs. S.Padmavathamma] and referred to paragraphs 31 and 32, which read as follows:
?31.It is undoubtedly correct that a true and clear admission would provide the best proof of the facts admitted. It may prove to be decisive unless successfully withdrawn or proved to be erroneous. The legal position with regard to admissions and their evidentiary value has been dilated upon by this Court in many cases. We may notice some of them.
32.In the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1960 (1) SCR 773 : AIR 1960 SC 100, it was observed as follows:
?An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.??
29.The above judgment was pressed into service to buttress the principle that when there is admission, it need not be proved in trial. The basis for this legal principal is in Section 58 of the Indian Evidence Act, 1872, which reads as follows:
?58. Facts admitted need not be proved.- No fact need be proved in any proceeding which the parties thereto their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.?
30.Though there can be no dispute about this principle, this does not help the cross objector, as the oral partition cannot be established by mere admission as the oral partition is being propounded by the defendant and denied by the plaintiff. The moment the defendant sets up oral partition as a defence and propounds an oral partition, the onus shifts from the plaintiff to the defendant and it is for the defendant to establish in a manner known to law the alleged oral partition. Therefore, the aforesaid case law or Section 58 of the Indian Evidence Act does not aid the cross objector. In other words, the Courts below were correct in disbelieving the oral partition. Furthermore, this case is where proviso to Section 58 may operate but as Courts have not called upon the parties to establish the same, it is not necessary to delve into this. However, suffice to say that it follows as a sequitur that the onus with regard to proving the oral partition is on the defendant.
31.With regard to the argument regarding difficulty in division of suit property projected by learned Counsel for appellant, this Court has very carefully perused the decrees of the Courts below. It is necessary to extract the decree of the trial Court. The decree of the trial Court is in two limbs and the two limbs read as follows:
?Kjy; epiyj; jPh;g;;ghiz 1 jhthr; brhj;jpy; fpHf;Fg; gf;fk; gpujpthjp jd; brhe;jr; brytpy;
thjpapd; rk;kjj;jpd; nghpy; Rkhh; 35 Mz;LfSf;F Kd;ng jdpahf tPL fl;of; FoapUf;Fk; mDgtj;jpw;Fg; ghjfk; ,y;yhj epiyapy; jhth brhj;jpy; + ghfj;ij thjp ghfk; gphpj;Jg; bgWtjw;F thjpf;F rhjfkhf Kjy;epiyj; jPh;g;ghiz tHq;fg;gLfpwJ.
2.mtuth; bryt[j; bjhifia mtutnu Vw;Wf; bfhs;s ntz;Lk;. thjp jug;g[ bryt[j; bjhif U:.8>890/-I mtnu bghWj;Jf; bfhs;s ntz;Lk;. gpujpthjp jug;g[ bryt[j; bjhif U:.5>005/-I mtnu bghWj;Jf; bfhs;s ntz;Lk;.?
32.A perusal of the decree reveals that it is clearly a preliminary decree. Besides this, the decree is only to the effect that partition of the suit property for dividing the same as two half shares should be done without affecting the superstructure put up by the defendant. It is the categoric case of the defendant that he has put up superstructure only in 70 feet east- west on the eastern side of the suit property. In other words, there is no superstructure of the defendant beyond 70 feet on the eastern side of the suit property. Under such circumstances, there is no ambiguity or difficulty in executing the decree.
33.It goes without saying that in a final decree application, a Commissioner will have to be appointed under Order XXVI Rule 13 CPC. Once a Commissioner is appointed for partition of suit property under Rule 13 of Order XXVI CPC, the procedure to be followed by the Commissioner has been categorically adumbrated in various sub-rules of Rule 14 of Order XXVI CPC. These sub-rules are clearly mandatory and not directory, as they mandate the consequence in case of non-adherence.
34.In the light of the narrative and discussion supra, this Court has no difficulty in answering both the aforesaid substantial questions of law by holding that the first appellate court has not committed an error in holding that the defendant is entitled to that portion of the suit property where the superstructure stands. As alluded to supra, all that the trial Court has set out is that the partition shall take part in such a manner that it does not affect the superstructure.
35.With regard to substantial question of law No.2, the same is answered by holding that the Courts below have not committed error in holding that the plaintiff is not entitled to a share in the superstructure as it has been established by evidence in Courts below that the superstructure was put up by defendant and that it was put up with the knowledge of plaintiff. There is nothing to show that there is any perversity in appreciating evidence in this regard. Therefore, both the substantial questions of law are answered against the appellant.
36.With regard to substantial questions of law propounded by the cross objector, it has already been discussed supra as to why there is no error in the Courts below in disbelieving the oral partition.
37.Therefore, proposed substantial question of law No.1 does not arise for consideration.
38.With regard to proposed substantial questions of law 2, 3 and 4, the same pertain to the manner in which partition has been ordered, in the light of the discussion supra and in the light of the same being alluded to supra, there is no difficulty in holding that substantial questions of law 2 to 4 proposed by cross objector also do not arise for consideration in the instant case.
39.In the result, both the second appeal and the cross objection are dismissed, confirming the judgments and decrees of the Courts below. Considering that the adversaries are blood brothers, the parties are left to bear their respective costs.
To
1.The Principal District Judge, Srivilliputtur.
2.The Subordinate Judge, Aruppukottai.
3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.
.