Madras High Court
Sankar @ Barma Sankar vs Sivasekaran @ Barma Sekar on 27 August, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
S.A.(MD)No.333 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 27.08.2019
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal(MD)No.333 of 2019
and
C.M.P.(MD)No.6808 of 2019
Sankar @ Barma Sankar : Appellant/1st Respondent/
1st Defendant
-Vs-
1.Sivasekaran @ Barma Sekar
2.Dhanalakshmi
3.Periyanayagi
4.Loganadevi
5.Manimaran
6.Mahendran
7.Sampathkumar : 1 to 7 Respondents/Appellants/Plaintiffs
8.Prema : 8th Respondent/2nd Respondent/
2nd Defendant
Prayer: Second Appeal filed under Section 100 of Civil
Procedure Code, 1908, praying to set aside the judgment and
decree dated 12.02.2019 made in A.S.No.73 of 2017 on the file
of the Learned Additional District Court (Fast Track Court),
Kumbakonam reversing the judgment and decree passed dated
25.05.2017 in O.S.No.53 of 2014 on the file of Learned Principal
Sub Judge, Kumbakonam.
For Appellant : Mr.G.Gomathi Sankar
For Respondent : Mr.K.Govindarajan
***
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S.A.(MD)No.333 of 2019
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S.A.(MD)No.333 of 2019
JUDGMENT
The first defendant in the suit in O.S.No.53 of 2014 on the file of the Principal Sub Court, Kumbakonam, is the appellant in this second appeal. The respondents 1 to 7 in this second appeal filed the suit in O.S.No.53 of 2014 for partition of their 4/6 share in the suit property. The suit property is a house with a plot of 12 cents with all features in Survey No.200/3 in Maathi Village, Kumbakonam Registration District, Kumbakonam Taluk, Thanjavur District.
2.The case of the plaintiffs is that the suit property was purchased by Muniammal, the mother of respondents 1 to 3 and grand-mother of respondents 4 to 7 under a registered sale deed dated 12.12.1971. The first plaintiff is the son and plaintiffs 2 and 3 are the daughters of the said Muniammal. One of the sons of Muniammal by name Marimuthu @ S.M.Kumar died in 2006, leaving behind plaintiffs 4 to 7 who are the wife and children of the said Marimuthu @ S.M.Kumar. Though Muniammal had another son by name Kamaraj, it is admitted that he died as a bachelor on 13.12.2012. The relationship is not disputed. It is also admitted that the husband of the Muniammal namely one Sivagnanam died on 20.04.1987 and Tmt.Muniammal died on http://www.judis.nic.in 3/13 S.A.(MD)No.333 of 2019 04.04.1999. The plaintiffs 1 to 3 being the children of the Muniammal entitled to 1/6 share each and the plaintiffs 4 to 7 being the wife and children of one of the sons of the Muniammal are entitled to 1/6 share in the suit property. It is the case of the plaintiffs that the male heirs of the Muniammal though entered into a Karavolai, the said Karavolai was not acted upon. It is further stated that the said Karavolai is not legally valid as the female heirs were not made as parties. Though a suit for injunction was filed by the first defendant in O.S.No.67 of 2014 on the file of the Principal District Munsif Court, Kumbakonam, the result of the said suit is not disclosed either in the plaint or in the course of the proceedings. The suit was contested by the first defendant relying upon the said Karavolai dated 13.06.2001. It is the specific case of the appellant that the male heirs of Muniammal entered into the said Karavolai by way of family arrangement and that one of the sons of Muniammal by name Kamaraj and the fourth plaintiff orally agreed that the defendant can enjoy the property in respect of 3½ cents of the suit property. The first defendant also contended that the suit for partition without cancelling the Karavolai is not maintainable. It is further stated that the first defendant is running a stainless steel factory covering ½ share as per http://www.judis.nic.in 4/13 S.A.(MD)No.333 of 2019 Karavolai. The first defendant also pleaded ouster.
3.The trial Court after framing necessary issues dismissed the suit holding that the Karavolai was acted upon and that the same is binding on the plaintiffs and defendants. The trial Court further held that the first defendant ousted the other sharers by relying upon the Karavolai which was executed in the year 2001. The suit being filed only in the year 2014, the trial Court was of the view that the plea of ouster raised by the first defendant can be accepted. As against the judgment and decree of the trial Court, the plaintiffs preferred an appeal in A.S.No.73 of 2017 on the file of the District Munsif Court (Fast Track Court) Kumbakonam. The appellate Court, however, after considering the entire pleadings and evidence, came to the conclusion that the Karavolai is not binding on the female heirs since female heirs are also entitled to the share in the property which was purchased by the mother Muniammal. The appellate Court is of the view that the said Karavolai is not binding on female heirs and that it was not acted upon. The lower appellate Court considered the documents and found that the said Karavolai though was executed on 13.06.2001, there was no material placed before the Court to hold that the said Karavolai was acted http://www.judis.nic.in 5/13 S.A.(MD)No.333 of 2019 upon. Though the only document to show that the assessment of the property tax was changed in the name of the first defendant, since the assessment continues to be in the name of Muniammal till 2013, the lower appellate Court was of the view that the document namely Karavolai cannot be accepted as a valid document to oust the female heirs. Written statement was filed by the second defendant supporting the case of the first defendant. The second defendant accepted the Karavolai and contended that they have not given any property at the time of partition as they had received enough money and articles at the time of their marriage. Considering the fact that the second defendant was not a signatory to Ex.B1 and the daughters of Muniammal are not parties to the document, the lower appellate Court, specifically held that the case of the defendants cannot be accepted merely because one of the female heirs of Muniammal had accepted the Karavolai. As a result, the lower appellate Court allowed the appeal and decreed the suit in O.S.No.53 of 2014 granting a decree for partition as prayed for. Aggrieved by the same, the first defendant has preferred the above Second Appeal.
4.In the memorandum of grounds, the appellant has raised http://www.judis.nic.in 6/13 S.A.(MD)No.333 of 2019 the following questions of law:
a) Whether the lower Appellate Court decreed the suit is correct when the suit property already partitioned between the plaintiffs and first defendant for which “karaivolai” in Ex.B1 was executed and it was admitted by the plaintiffs?
b) Whether the Courts below came to conclusion that the plaintiffs are not ousted the suit property is correct when the first defendant is in possession and enjoyment of the suit property for more than 12 years with knowledge of plaintiffs?
c) Whether the plaintiffs are not barred by Section 110 of Limitation Act to claim the partition?
5.The learned Counsel appearing for the appellant submitted that the document Ex.B1 namely Karavolai was executed in the year 2001 and the execution of the document is categorically admitted by the plaintiffs even in the plaint. The learned Counsel appearing for the plaintiffs further submitted that Karavolai under Ex.B1 was acted upon and the trial Court categorically found in their favour. Since the suit has been field only in the year 2014, the learned Counsel for the appellant http://www.judis.nic.in 7/13 S.A.(MD)No.333 of 2019 submitted that the Karavolai is binding on plaintiffs 1 and 4 to 7 and that the suit for partition ought to have been dismissed on the ground that the first defendant had acquired title by ouster. The learned Counsel also submitted that the suit is barred by Section 110 of the Limitation Act. The learned Counsel then relied upon a judgment of this Court in the case of Venkataramana and others v. N.Munuswamy Naidu and others reported in 2010 (4) CTC 640. The learned Counsel relied upon the following portions which runs as follows:
“16.It can be easily inferred and observed that the Plaintiffs have been excluded from the enjoyment of the property atleast from 1969. There is no material to show that they had been in joint possession of the property. It is true, that mutation in Revenue Records would not confer any title to the persons whose name is found in them. But they would serve as an evidence to show that he is enjoying the property. If his enjoyment continues over the statutory period, his right becomes absolute and he becomes absolute owner of the property. In case, if there had been no claim from the other joint owners of the property, the person who claims exclusive possession must show that his possession was continuous, uninterrupted, open and he was holding the right to the knowledge of the other joint owner. The oral evidence on record would indicate http://www.judis.nic.in 8/13 S.A.(MD)No.333 of 2019 that the Plaintiffs are residing in the suit village or in the nearby places. Hence, they have been having knowledge of possession by the First Defendant. By the pleadings and evidence, it could be seen that the fact of exclusion strikes the knowledge of the Plaintiffs only in 1993, after 24 years from the date of issuance of patta in the name of the First Defendant.”
6.The judgment relied upon by the learned Counsel for the appellant can be distinguished on facts. The case that was dealt with by the learned Judge in the said judgment is a case where the plaintiffs were excluded from enjoyment of the property from 1969. It was not disputed therein that settlement patta was granted long back in favour of the defendant and that the plaintiffs had filed the suit only after 22 years in the name of the first defendant. It was in the said context, this Court observed that mutation of records would serve as evidence to show that the contesting defendant is enjoying the property in his right as absolute owner.
7.In the present case, the first defendant does not dispute the rights of the male heirs as per the Karavolai. No material is produced before this Court to show that there was a partition by metes and bounds as per Karavolai. The admissibility of the http://www.judis.nic.in 9/13 S.A.(MD)No.333 of 2019 document namely Ex.B1 has not been considered by the Courts below. From the pleadings and evidence, the document by which the parties have agreed to divide the properties is required to be registered. The said document is not stamped and hence, the admissibility of the document cannot be accepted as a matter of course. Secondly, the male heirs of Muniammal are alone parties to Ex.B1. The suit is filed by the brother of first defendant and two sisters and legal heirs of another brother. The Karavolai pleaded by the first defendant is not binding on the plaintiffs 2 and 3 who are not parties to it. The property admittedly belonged to the mother of the first defendant. After her death, the property devolve on all her children including plaintiffs 2, 3 and second defendant. Though the second defendant filed a written statement admitting Karavolai and stated that she had no objection for her brothers to divide the property among themselves, the said written statement is not binding on the plaintiffs 2 and 3. The question of ouster in this case does not arise as the first defendant was never in exclusive possession of the property. As long as the first defendant admit the share of his brothers particularly first plaintiff and the husband of the fourth plaintiff, the possession of the first defendant is only permissive. So the plea of ouster in the http://www.judis.nic.in 10/13 S.A.(MD)No.333 of 2019 present case has no legal basis. The lower appellate Court found that the first defendant has not established his plea of ouster based on the documents. From the documents that were filed before the trial Court, the property tax assessment stood in the name of Muniammal till 2013. There is no document produced except one document where the assessment was changed in the name of the first defendant. When the property even according to the first defendant belonged to the male heirs of Muniammal as per Karavolai, the change or mutation of name of property tax assessment in the name of the first defendant cannot be taken as evidence of ouster. The appellate Court after appreciation of evidence has come to the conclusion that the first defendant has failed to establish his case of ouster. This Court do not find any illegality or irregularity in the findings of the lower appellate Court. The judgment of lower Appellate Court is well founded and supported by reasons. Going by the documents filed by the plaintiffs and defendants, this Court has no hesitation to hold that in the suit for partition, the plaintiffs are entitled to the share as pleaded by them. Having regard to the factual findings and the discussions of this Court in the previous paragraphs, this Court is of the view that the trial Court has miserably failed to consider the documents http://www.judis.nic.in 11/13 S.A.(MD)No.333 of 2019 and the principles of law applicable to the present case.
8.As a result, this Second Appeal is devoid of merits and hence, dismissed. No costs. Consequently, the connected civil miscellaneous petition is closed.
Index : Yes/No 27.08.2019
Internet : Yes/No
SRM
To
1.The Additional District Court (Fast Track Court), Kumbakonam.
2.The Principal Sub Court, Kumbakonam.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
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