Madras High Court
Murugesan vs Subash Chandrabose on 13 October, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 13.10.2017
Reserved on: 22.02.2017
Delivered on: 13.10.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Appeal Suit (MD) No.206 of 2008
and
M.P.(MD)No.1 of 2015
Murugesan : Appellant / Plaintiff
-Vs-
1.Subash Chandrabose
2.Tamilarasi
3.Thilagavathi : Respondents /Defendants 1 to 3
Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment and decree dated 11.04.2007 passed in O.S.No.12 of 2005
on the file of the learned District Judge, Sivagangai.
!For Appellant :Mr.T.Krishnamoorthy
^For Respondent 1 :Mr.S.Natarajan
For Respondent 2 :Mr.R.Devaraj
For Respondent 3 :Mr.K.Kumaravel
:JUDGMENT
The plaintiff in O.S.No.12 of 2005, on the file of the District Court, Sivagangai, is the appellant in this appeal.
2.The appellant filed a suit in O.S.No.12 of 2005, for partition of his 5/12 share in all the suit properties and for separate possession of 5/12 share in all the suit properties.
3.The case of the plaintiff / appellant can be summarized as follows:
3(1).The suit properties and other properties originally belonged to one Veerapathiran Servai. He had five sons, by names, Vellaisamy, Arunachalam, Panchavarnam, Ganesan and Arumugam. After the death of Veerapathiran Servai, his sons entered into an oral partition about 50 years back and all the suit properties were allotted to one, Panchavarnam, the father of the plaintiff.
3(2).Panchavarnam, died about 10 years back. The plaintiff and the defendants are his heirs. Defendants 2 and 3 were given in marriage, by the plaintiff's father during his life time and they were living separately. The suit first item is a house and vacant site. In the main portion of the house, the first defendant is residing and the plaintiff is residing in the back side of the tiled roof structured building. In the other portion of the back side, the second defendant is residing. The plaintiff and the defendants are in joint enjoyment. As per the Hindu Succession Act, the plaintiff and the first defendant are entitle to 5/12 share, whereas, 2nd and 3rd defendants are entitled to 1/12 share each.
3(3).The first defendant tried to alienate the suit property first item as if the entire property belongs to him, even though the first defendant has no such right. It was in the said circumstances, the plaintiff was constrained to file the suit for partition of his 5/12 share.
4.The first defendant filed a written statement admitting the fact that the suit property originally belonged to one Veerapathiran Servai. However, it was further stated that there was a registered partition deed on 15.12.1957 among the five sons of Veerapathiran Servai. It is admitted that the suit properties were allotted to the father of the plaintiff and defendants, namely, Thiru.Panchavarnam. It is the case of the first defendant that his father Panchavarnam, tried to alienate the properties and hence, the first defendant had issued a legal notice on 20.03.1989, demanding partition.
5.The first defendant specifically pleaded that there was an oral partition in the year 1989, on the advice of elders and advocates, during the life time of father, Thir.Panchavarnam and that the first defendant was allotted a building bearing D.No.18 in the suit first item. It is also stated that D.No.14 was allotted to the plaintiff and the building bearing D.No.12 and the vacant site were allotted to the defendants 2 and 3. It is stated that the suit second item was exclusively allotted to the first defendant. It was therefore contended that the suit for partition once again is not maintainable, as the parties are enjoying the suit properties as exclusive owners as per the oral partition. It was further stated that the plaintiff executed a document fraudulently by creating a mortgage deed in respect of suit second item in favour of second defendant on 31.08.1994. It is stated in the written statement that the plaintiff himself had admitted the oral partition in the mortgage deed. It is further stated that the first defendant issued a notice, claiming exclusive ownership, in respect of suit second item and that the second defendant had also given a reply on 28.10.1994.
6.It is also the case of the first defendant that the second defendant issued a notice, claiming the mortgage amount. It is stated further that the first defendant went to the second defendant and redeemed the property after discharging the entire mortgage money. Since the second defendant had paid the mortgage amount for redemption, it is stated that he is having the original documents. The first defendant has referred to the suit which was filed in O.S.No.273 of 1999, on the file of District Munsif Court, Sivagangai, by stating that the said suit filed by the first defendant was allowed in part.
7.It is stated further that the suit filed by the first defendant was also based on the first defendant's exclusive ownership and enjoyment. It is the case of the first defendant that items 3 and 4 of the suit properties were allotted to the plaintiff and that he is in exclusive possession and enjoyment of the properties. Sum and substance, the suit was contested mainly on the ground that there was an oral partition by which the plaintiff and first defendant got properties from their father and that the present suit for partition is not maintainable.
8.The defendants 2 and 3 in the suit, who are the sisters of the plaintiff, did not contest the suit and remained ex parte. The trial Court, framed necessary issues and the main issues that were considered by the trial Court was whether the suit properties have already been partitioned as contented by the first defendant and whether the suit second item is the absolute property of the first defendant, who got the same exclusively for himself as per the oral partition.
9.P.W.2 is one Dhakshinamoorthi, who is the son of Vellaisamy. Vellaisamy is none else than the brother of Panchavarnam, father of the plaintiff and defendants. The plaintiff produced a document Ex-A1, namely, the Patta stands in the name of plaintiff's father regarding the suit properties. The defendants examined D.W.1 and D.W.2 and stated in his proof affidavit that the plaintiff and defendants have partitioned the suit properties orally in the year 1989 and that they were enjoying the properties separately. The defendants have also produced Ex-B1 to B8.
10.The trial Court relied upon the document Ex-B1, dated 31.08.1994, namely, the mortgage deed, executed by the plaintiff in favour of the second defendant, relating to the suit second item and came to the conclusion that the plaintiff himself admitted in this document that there was an oral partition. The trial Court also recorded the findings that the plaintiff also admitted that he is in possession and enjoyment of suit items of 3 and 4 and that therefore, the oral partition pleaded by the first defendant is true. The trial Court has observed that no other document was filed by the plaintiff to corroborate the case of the plaintiff regarding the joint enjoyment and possession of the suit properties by the plaintiff and defendants.
11.The trial Court on the basis of further admission that the plaintiff and other defendants are residing in separate portion of the building having different door numbers, came to the conclusion that the parties are living separately and the allotment of the properties as claimed by the first defendant is true. Since the first defendant had sent a legal notice on 20.03.1989, for partition to his father, the case of the first defendant is that there was an oral partition among the plaintiff and the defendants in the presence of elders in the year 1989, during the life time of father. Ultimately, based on the contents of the document in Ex-B1, namely, the mortgage deed, where the plaintiff has stated that the portion of the suit properties described in the suit second schedule was allotted to him in the oral partition, the trial Court has accepted the case of the first defendant and held that the oral partition is true. The trial Court has believed the case of the plaintiff that the mortgage money was paid only by the first defendant as contended by him and held that the second item of suit property was allotted to the first defendant in the oral partition as contended by the first defendant.
12.The trial Court also referred to the evidence of P.W.1 and found that P.W.1 admitted that he leased out the 3rd and 4th items of the suit properties. Since the oral partition is valid in law, the trial Court relied upon the judgment of this Court, reported in 1979 L.W. 126, in the case of Peddu Reddiyar vs Gothanda Reddi, wherein it has held that an oral partition is valid. Thus, the suit was dismissed by the trial Court only on the ground that there was an oral partition in respect of the suit properties and that the plaintiff is not entitled to seek for partition as prayed for, in the suit. Aggrieved by the judgment and decree of the trial Court, the plaintiff has preferred the above appeal.
13.The learned Counsel appearing for the appellant contended that the oral partition pleaded by the first defendant was not proved in the manner known to law. When the first defendant has categorically pleaded that the mortgage deed under Ex-B1 is a fraudulent document, the trial Court ought not to have relied upon the document Ex-B1 to accept the case of the first defendant that there was an oral partition in the year 1989. The learned Counsel for the appellant further submitted that the trial Court misconstrued the evidence of P.W.1, as if the plaintiff has admitted the oral partition by the first defendant. The learned Counsel for the appellant referred to the evidence of P.W.1 and P.W.2 and D.W.1 and D.W.2 and submitted that the trial Court committed a grave error while appreciating the evidence of witnesses examined on both sides.
14.It was further contended that there was no documents to show that there was an earlier partition. The first defendant himself admitted that the Patta for suit properties stands only in the name of his father and that therefore, there was no documents witnessing such oral partition. The trial Court failed to consider the admission of the first defendant in the course of evidence. The learned Counsel for the appellant further submitted that merely because the parties are residing separately in different portion of the first schedule property, the oral partition can not be presumed. Having regard to the stand taken by the first defendant regarding Ex-B1, the learned Counsel for the appellant submitted that the first defendant is estopped from relying upon the recitals in Ex-B1. Since the findings of the trial Court is based on misconstruction of evidence of PW-1, the learned Counsel for the appellant submitted that the judgment and decree of the trial Court are unsustainable and hence, liable to be reversed.
15.The learned Counsel for the second respondent also advanced the arguments supporting the case of appellant. Since the second defendant is also the daughter of Panchavarnam, it was further submitted by the learned Counsel for the second respondent that the second respondent is also entitled to equal share in the suit properties and the suit need not be decreed as prayed for in the plaint and there should be a decree for partition declaring the right of , share to all four children of Panchavarnam, in view of Hindu Succession (Amendment) Act, 2005, and the State Amendment.
16.The learned Counsel for the first respondent mainly relied upon the recital in Ex-B1 and submitted that there is a categorical admission by the plaintiff regarding the oral partition. It was further submitted that the admission by the plaintiff is the best evidence and that therefore, the findings of the trial Court regarding the oral partition cannot be assailed. Since the plaintiff and the defendants are enjoying the first item separately as pleaded by the first defendant, there is no scope for interfering with the judgment of trial Court.
17.Having regard to the specific pleadings and submission of the learned Counsel for the respective parties, the main question before this Court is whether the oral partition pleaded by the first defendant is true and proved in the manner known to law. If the oral partition pleaded by the first defendant is proved it has to be seen whether the allotment of properties as pleaded by the first defendant is proved. Except the recitals of the document Ex-B1 and the oral evidence of P.Ws.1 and 2, no other evidence is produced by the first defendant. This Court is able to see that the plea of first defendant is about the oral partition during the life time of Thiru.Panchavarnam, the father of the defendants. From the oral partition pleaded by the first defendant, it can be seen that there was no mention about any allotment in favour of the the father of the plaintiff and the first defendant in the oral partition. Hence, the oral partition pleaded by the first defendant is quite unnatural.
18.The plaintiff has admitted the execution of mortgage deed under Ex- B1 which was only in respect of a small portion of property in suit second item. The recital of mortgage deed under Ex-B1 shows that in an oral partition between the plaintiff and the first defendant, a portion of the property in suit second item, which was described in the schedule, was allotted to the plaintiff and that he is in enjoyment and possession of the same. The said mortgage deed was executed in favour of the second defendant for a sum of Rs.10,000/- on 31.08.1994. Hence, the recital of Ex-B1 regarding oral partition is not an admission of oral partition, pleaded by the first defendant. The first defendant has taken a stand that the document in Ex-B1 is a fraudulent document, created only to make a claim in the suit second item.
19.The learned Counsel for the first respondent relied upon a judgment of the Hon'ble Supreme Court in the case of Avtar Singh and others vs. Gurdial Singh and others reported in (2006) 12 SCC 552, wherein the Hon'ble Supreme Court has held as follows:
?...... 8.Admission, it is well known, forms the best evidence. It may be that admission does not create any title, but the nature of the land can form subject matter of admission.
9.Section 58 of the Evidence Act postulates that things admitted need not be proved.....?
20.The learned Counsel for the first respondent also relied upon a judgment of the Hon'ble Supreme Court in the case of Ahmedsaheb and others vs. Syed Ismail reported in (2012) 8 SCC 516, wherein the Hon'ble Supreme Court has held that admission of the parties in the proceedings made either in pleadings or orally is the best evidence and the same does not need any further corroboration.
21.The learned Counsel for the first respondent also relied upon a judgment of the Hon'ble Supreme Court in the case of Darshan Singh vs. Shamsher Singh reported in (1988) 1 Scale 391 for the the proposition that the oral partition is valid as the partition can be effected orally and that it should be registered only if the terms of the documents are reduced in writing to effect the division and to record the terms of bargain under the document.
22.The learned Counsel for the first respondent also relied upon a judgment of the Bombay High Court in the case of Tarabai Prabhakararrao Nalawade and others vs. Kesharbai Alias Pushpabai Eknathrao Nalawade and others reported in AIR 2009 (NOC) 1917 (BOM), to support the proposition that the party who has acted and treated property allotted to him as his exclusive property by dealing with the same is estopped from challenging the existence and validity of earlier oral partition.
23.The judgments relied upon by the learned Counsel for the first respondent are not applicable to the facts of this case. ?First of all, the admission pointed out by the first respondent under Ex-B1 refers to an oral partition, as between the plaintiff and the first respondent alone?. Even if there is an oral partition between the plaintiff and the first respondent, without the presence or consent of others, the same is not valid. However, in this case, the admission in Ex-B1 is not about the oral partition, pleaded by the first defendant. The case of first defendant in the written statement as well as his evidence is that an oral partition was effected during the life time of Panchavarnam, the father of the first defendant. The document Ex-B1, as such is described by the first defendant himself as a fraudulent document and the trial Court also did not accept the document to confer any right on the plaintiff to claim a share in the suit second item, which is the subject matter of mortgage deed under Ex-B1. The admission in a deed may be conclusive in certain circumstances. But in this case, neither the first defendant nor the trial Court accept the oral partition as stated in the document Ex-B1. The law does not permit the admission to be truncated and taken on piecemeal and it should be read as a whole or reject as a whole. That is the position of law, reiterated in various judgments of the Hon'ble Supreme Court and this Court.
24.The burden to prove partition is on the persons who assert the same. There is no evidence of actual partition having taken place. Merely because the parties are living separately, having separate mess cannot established that a partition had taken place. This Court is of the firm view that the oral partition cannot be accepted in this case as except Ex-B1 absolutely there is no evidence in this case to accept the plea of first defendant. The first defendant himself admits that Patta for the suit properties stands only in the name of his father. He also admits that no other document was executed after the oral partition recording such oral partition.
25.The case of the first defendant that the money, discharging the mortgage deed under Ex-B1, was paid by him is not supported by any evidence. Even the evidence of PW-1 would only indicate that the mortgage money was paid by the plaintiff and the first defendant. Merely because the original document is produced by the plaintiff, it can not be concluded that the suit second item was allotted to the first defendant in the oral partition. The trial Court has recorded a finding that the plaintiff has admitted his possession and enjoyment in respect of suit third and fourth items by leasing out the properties. It is not even the case of the first defendant that the suit third and fourth item were leased out by the plaintiff in favour of third parties.
26.Having regard to the specific case in the evidence of PW-1 that the suit properties are being enjoyed in common, the trial Court has not considered the evidence in a proper prospective. It is the admitted case of both plaintiff and the defendants that the parties are in enjoyment of specific portions in the tiled house, which is described as first item in the suit. Merely because they were residing separately in the same house and the parties have separate mess, it cannot be presumed that there is an oral partition. As stated earlier, the oral partition in this case as pleaded by the first defendant is a partition that was effected among the father and sons during his life time. This would only indicate that the oral partition pleaded by the first defendant is unnatural. The evidence of P.W.2 has not been considered by the trial Court. P.W.2 seeks about joint enjoyment and he is an independent witness. The evidence of D.W.2 does not support the case of oral partition pleaded by first defendant. D.W.2 admits that he is a relative of first defendant's wife. His version of oral partition is the division of properties by the plaintiff and the first defendant, after the death of father. Therefore, the evidence of D.W.2 abut the oral partition does not corroborate the case of oral partition pleaded by the first defendant and spoken by D.W.1. These aspects have not been considered by the trial Court.
27.Having regard to the position that there is no other evidence except the ipse dixit of D.W.1 and the recitals in Ex.B1 regarding the oral partition, this Court is not in a position to subscribe to the view of the trial Court that there was an oral partition in the year 1989. Since the first defendant himself admits that Patta for the suit properties still stands in the name of father of the plaintiff and the defendants, the plaintiff cannot be expected to prove by any other documents that the properties are being enjoyed in common. The Trial Court ought to have held that the parties are enjoying the property jointly as established by Ex.A1 and the admission of D.W.1. However the trial Court has recorded a finding that no document is produced to show joint enjoyment. Hence, the judgement and decree of trial Court in O.S.No.12 of 2005 dismissing the suit is set aside. The suit properties are stated to be joint family properties. The plaintiff claimed 5/12 share in all the suit properties. The plaintiff and the first defendant being the sons of Panchavarnam are entitled to 5/12 share each. The defendants 2 and 3, who are the daughters of Panchavarnam and sisters of plaintiff are entitled to 1/12 share each.
28.It is argued by the the learned Counsel for the second respondent that the defendants 2 and 3 are entitled to equal share by virtue of the State Amendment, 1989 and the Hindu Succession Act, 2005. It is to be stated that the father died some time in 1989, the actual date of death was not stated either by the plaintiff in the plaint or by any of the parties. The defendants 2 and 3 remained ex parte and did not come forward with any specific plea demanding equal share. Even in the written submission, the date of death of father of the plaintiff and first defendant is not stated. The defendants 2 and 3 have not filed any individual appeal even though the suit for partition was dismissed. Even in the plaint, it was stated that the plaintiff's father had given defendant 2 and 3 in marriage by spending huge money by providing 'Seethanam'. Married defendants are not entitled to the benefits of State Amendment. Since father died long before the amendment to Section 6 of Hindu Succession Act, in 2005, there is no scope for the defendants to claim equal share. Hence, in the appeal, the contention of the second respondent that she is entitled to equal share cannot be accepted. Hence, the suit in O.S.No.12 of 2005 on the file of District Judge, Sivagangai, is decreed as prayed for and the appeal is therefore allowed. No costs. Consequently, the connected miscellaneous petition is closed.
To
1.The District Judge, Sivagangai.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.