Madras High Court
K.Rajaram vs K.Ramakrishnan on 29 January, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.Nos.189 & 143 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.Nos.189 & 143 of 2019
and
C.M.P.Nos.7207, 7210 & 5669 of 2019
A.S.No.189 of 2019:
K.Rajaram ..Appellant
vs.
1.K.Ramakrishnan
2.Usha
Both residing at
No.3, Raghuraman Street
(Via Panchali Amman Koil street)
Arumbakkam, Chennai – 600 106 ..Respondents
Appeals filed under Section 96 of the Civil Procedure Code
r/w Order XLI Rule 1 of C.PC., to set aside the judgment and decree
dated 31.08.2018 passed in O.S.No.82 of 2013 by the learned District
Judge, District Court No.II, Kanchipuram.
For Appellants : Mr.N.M.Siddhardhudu
For Respondents : Mr.N.Nagu Sah
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A.S.No.143 of 2019:
Rajaram ..Appellant
vs.
1.Ramakrishnan
2.Kasthuri
3.R.Palani
Shanthi(Died)
4.Elumalai
5.Sasikumar
6.Karthick
Both 5th & 6th residing at
No.33/48, Mankandeeswarar Koil Street,
Kanchipuarm Taluk & District. ..Respondents
Appeals filed under Section 96 of the Civil Procedure Code
r/w Order XLI Rule 1 of C.PC., to set aside the judgment and decree
dated 31.08.2018 passed in O.S.No.46 of 2012 by the learned District
Judge, District Court No.II, Kanchipuram.
For Appellants : Mr.N.M.Siddhardhudu
For Respondents : Mr.N.Nagu Sah
[For R1, R3 to R6]
Mr.D.Anantha Krishnan
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A.S.Nos.189 & 143 of 2019
[For R2]
COMMON JUDGMENT
The appeal suit in A.S.No.189 of 2019 is filed against the judgment and decree dated 31.08.2018 passed in O.S.No.82 of 2013 and the appeal suit in A.S.No.143 of 2019 is filed against the judgment and decree dated 31.08.2018.
2. The plaintiff is the appellant in both the appeal suits and the defendants are the respondents. The appeal suit is filed against O.S.No.82 of 2013 and the trial Court passed a common judgment in respect of other suits filed in O.S.No.46 of 2012 and O.S.No.81 of 2013. As far as O.S.No.82 of 2013 is concerned, the facts in brief set out in the plaint are that the suit properties are belonged to the father of plaintiff namely Kullapillai. He was died in the year 1952, leaving behind two sons namely Kandasamy Pillai and Veerasamy Pillai. On 02.03.1996, both the brothers partitioned the properties under registered partition deed. The 1st defendant is elder son and the plaintiff is younger son of Kandasamy Pillai. The 2 nd defendant is wife of 1st defendant. The serial Nos.5 and 6 in item No.1 are purchased by 3/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 mother Selvanayagi under sale deed dated 21.09.1964. Item Number II of the plaint schedule property was acquired by father Kandasamy Pillai under exchange deed dated 31.05.1967. Kandasamy pillai died in the year 1982 and Selvanayagi died on 22.06.2006. Both of them were executed a unregistered will with a condition to inherit the suit properties only to the male issues of Ramakrishnan and Rajaraman. The patta regarding the suit properties stands in the name of plaintiff. The 1st defendant has not opposed the sale. The plaintiff is illiterate. Taking advantage of this, the 1st defendant has taken away all the original documents including unregistered will executed by plaintiff's parents.
3. The 1st plaintiff had worked in the Revenue Department. Due to his influence and by virtue of influence, he changed a patta as joint patta. He sent complaint against the plaintiff in respect of poultry farm. The 1st defendant purchased a flat and constructed a house in the name of 3rd defendant at Chennai from the income of suit properties. The 1st and 2nd defendant having assaulted the plaintiff on several occasions. They are trying to sell the properties suppressing the unregistered will. The plaintiff constructed a house in item No.1 and on 4/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 18.08.2012, the defendants 1 and 2 came with their rowdy elements and tried to disposes the plaintiffs by saying that they are going to enter lease agreements for harvesting coconut trees. The defendants 1 and 2 said that they are making arrangements to sell the suit properties and informed the plaintiff that they may come again and again. On account of the fact that the situation became worsen and the defendant had not come forward to divide the suit properties as well as the item No.3 of the suit property purchased by the 1st defendant in favour of the 2nd defendant, the plaintiff instituted a suit claiming half share in all the suit properties. The plaintiff arranged a poultry farm in the item No.1 by entering contract with M/s.Charoen Pokhand (India) Private Limited and for that he spent three lakhs and more including for obtaining EB connection for rendering the business. Thus, the plaintiff is entitled to half share in all the suit schedule properties.
4. The defendants 1 and 2 disputed the contentions in the plaint and filed a written statement, stating that the property measuring 1.12 Acre out of 2.24 Acre in Serial No.4, S.No.97/3 in item Number 1 of the schedule and 0.70 cents out of 1.41 Acres in serial number 5 S.No.97/04 in item no.1 are absolutely belonged to Selvanayagi 5/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 ammal. The serial No.6 of item No.1 S.No.97/5 not belonged to Selvanayagi ammal. It is the property of Kandasamy Pillai obtained in the partition deed. The late Kandasmy pillai and Selvanayagi ammal had not left any unregistered will as stated by the plaintiff. They died interstate. These defendants residing at Chennai in connection with employments and settled at Chennai. Taking advantage of the absence of these defendants, the plaintiff fraudulently obtained patta in his name. These defendants objected the transfer of patta after enquiry, the patta transferred in the name of plaintiff and 1 st defendant. It is denied by the defendants that the 1st defendant has taken the original documents including unregistered will. The father of the 1 st defendant Mr.Kandasamy pillai mortgaged the properties on 04.08.1964 in favour of one Natrajan naykar. After demise of his father, the 1st defendant discharged the mortgage on 21.06.1982 and received back the original documents. Further, on 05.08.1982, the 1st defendant had also discharged the loans raised by his father from one Natrajan Naicker to develop the scheduled properties. The 1st defendant alone settled the money decree out of his own fund. The plaintiff, who is looking after the family properties on behalf of others by living in the village misappropriating the entire income being derived from the schedule 6/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 properties. The plaintiff has not paid any share to the 1 st defendant. The 1st defendant joined service in the Revenue Department on 07.09.1973 and retired on 30.06.2008. His wife, the 2nd defendant was also working under various private companies and was drawing handful salary. The Chennai property was purchased by 2nd defendant in the year 1980 out of her own income from teaching profession and sale of her Sridhana jewels and amounts gifted by her father. That property was purchased during the lifetime of Kandasamy pillai and Selvanayagi ammal. In the year 1980, there was no income from the joint family properties and has no fund even to discharge the mortgaged loan and money decree in OS.No.184 of 1978. The 1st defendant celebrated the marriage of plaintiff out of his own income. The Chennai property is absolutely belonged to 2nd defendant. The revenue records also in the name of 2nd defendant. She mortgaged the property in M/s.Chintadripet Co-operative bank under registered mortgage deed dated 16.12.1982.
5. The 1st defendant never intended to sell any of the suit properties. The 1st defendant allowed the plaintiff to cultivate the suit properties on his behalf. Thus, he has to give accounts for the income 7/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 from the suit properties and other particulars. However, he has not submitted any such accounts nor given any share from the income. There was no will executed by the parents of the 1 st defendant. The house available in the item No.1 was constructed by the 1st defendant out of his own fund in the year 1999. The plaintiff did not contribute any amount for the same. At that time, the plaintiff was a minor. The 1st defendant alone saved them by sending his own money. The 1st defendant educated the sons of plaintiff. For the past 7 years, the poultry business was yielding very good income, but the plaintiff was trying to take away the entire income. When the 1st defendant questioned the same, he set up his sons and filed another frivolous suit. The plaintiff never in possession of suit properties and at the relevant point of time, these defendants are in Chennai. The plaintiff is enjoying the suit property and he is liable to submit accounts regarding the income being derived from the suit properties. The 1 st defendant has filed another suit in O.S.No.46 of 2012 for partition. The 2nd defendant is no way connected with any of the suit items 1 and 2. Thus, the suit is bad for mis-joinder of the parties. The 3rd item is absolute property of 2nd defendant. The plaintiff has no right over the 3rd item of suit property. Thus, the plaintiff is not entitled to the relief 8/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 of permanent injunction against the 1st defendant, who is also the co- owner in respect of the suit property.
6. The trial Court framed the issues as to Whether the plaintiff is entitled to relief of partition; Whether the Kandasamy pillai and Selvanayagi ammal left out any will as alleged by the plaintiff; Whether the plaintiff has any right in the suit item No.3; Whether the suit is bad for non-joinder of necessary party; Whether the plaintiff is entitled to decree for partition and injunction and To what relief the parties are entitled.
7. It is an admitted fact that Mr.Kullapillai had two sons namely Kandasamy pillai and Veerasamy pillai. Now, the dispute is between the family members of Kandasamy pillai. Kandasamy pillai had two sons namely Ramakrishnan and Rajaram. Relationship between the parties are admitted. Mr.Ramakrishnan filed a suit for partition in O.S.No.46 of 2012 in which he has stated that two sisters namely Sarojammal and Kasthuri. Sarojammal already died. Her legal heirs are plaintiffs No.3, 4 and defendants 2 to 4 in the respective suits in O.S.Nos.82 of 2013 and 46 of 2012. Thus, the above said 9/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 Ramakrishnan claimed partition including sisters also. But, one of the son namely Rajaram filed O.S.No.82 of 2013, saying that there is no female issues to Kandasamy pillai. He and his brother Ramakrishnan alone legal heirs to Kandasamy pillai. The O.S.No.82 of 2013 also partition suit. O.S.No.81 of 2013 is filed by sons of Rajaram for permanent injunction. Therefore, the parties, properties and reliefs are one and the same. Therefore, the trial Court has tried all the suits jointly as the evidence, documents in respect of the claim of the parties are one and the same.
8. On the side of the plaintiffs, the 1 st plaintiff examined as PW1. The 2nd plaintiff examined as PW2 and the 3rd plaintiff examined as PW3. Ex.A1 to Ex.A22 were marked on the side of plaintiff. On the side of defendant, the 1st defendant examined as DW1. One Raguram and kumar @ Ramkumar who are plaintiffs in O.S.No.81 of 2013 were examined as DW2 and DW3. Ex.B1 to Ex.B8 marked on the side of the defendant.
9. The issues both in O.S.No.46 of 2012 and O.S.No.82 of 2013 are mostly common. Thus, the trial Court jointly considered the issues 10/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 and as far as the present appeal suit in A.S.No.189 of 2019 is concerned, the trial Court considered Issue No.1 and Issue No.4 jointly with reference to the documents and evidences filed by the respective parties. The relationship between the parties were admitted by both the parties. The trial Court made a finding that on perusal of Ex.A7, Ex.A8, Ex.A21, Ex.A22 and Ex.B4, it is evident that 1 st document Ex.A7 is death certificate of Selvanayagi ammal. Death certificate shows she was died on 22.06.2006. Ex.A8 is legal heir certificate issued by Tahsildar, Kanchipuram on the petition given by the 2 nd plaintiff Kasthuri. The Tahsildar, Kanchipuram has given legal heir certificate for Selvanayagi that one Sarojamal, V.K.Ramakrishnan, R.Kasthuri and K.Rajaram are legal heirs to Selvanayagi ammal. Ex.B4 is objection given by Rajaram for cancellation of legal heir certificate. Ex.A21 is a requisition given by Ramakrishnan under RTI Act about genuineness of legal heir certificate issued for Selvanagi Ammal. Ex.A22 is the reply given by Tahsildar, Kanchipuram that the legal heir certificate of Selvanayagi ammal is genuine and the person mentioned in the legal heir certificate are genuine and the above certificate was issued after due enquiry in the village. From the documentary evidence, the trial Court found that there are two daughters born to Kandasamy pillai and 11/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 Selvanagi ammal. Though the above said Rajaram denied the relationship of Sarojammal and Kasthuri, in the written statement at Page 4, Para 9, he has stated that the “2 to 4 plaintiffs are already released their shares under Hindu Rights and Custom and they are not entitled to any share in the plaint schedule properties”. The pleadings shows that they are legal heirs and share holders in the suit properties. If they are 3rd parties, it is not necessary to release their shares. It shows that the contention of above said rajaram is false and unacceptable. The document shows that Sarojammal and Kasthuri also sisters of Rajaram and Ramakrishnan.
10. The trial Court in unambiguous terms held that the female heirs of Kandasmy pillai and Selvanayagi ammal were not properly impleaded in the suit and the suit was filed with non-joinder of the necessary parties. The said fact was proved beyond doubt in view of the fact that the legal heir certificate was established before the trial Court as well as the statement made by the plaintiff that the female heirs have already allotted some sharers and relying on the statement, the trial Court arrived conclusion that the said Sarojammal and Kasthuri are the sisters of Ramakrishnan and Rajaram and they are 12/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 not impleaded as party in the suit filed for partition. The trial Court then proceeded with reference to the question, whether the parties are entitled to share in the suit properties. The schedule of properties were extracted as below:
Item 1 OS 46/2012 OS 82/2013 OS 81/2013 A Schedule: SL.1 S.No:97/4-0.70 cent SL.5 SL.5 SL.2 S.No:97/5-1.41 acre SL.6 SL.6 SL.3 S.No:98/1-0.80 cent SL.7 SL.7 SL.4 S.No:98/2B-0.32 cent SL.8 SL.8 SL.5 S.No:80/1-0.90 cent SL.1 SL.1 SL.6 S.No:80/2-1.04 acre SL.2 SL.2 SL.7 S.No:80/3-0.53 cent SL.3 SL.3 SL.8 S.No:99/1-0.50 cent SL.9 SL.9 SL.9 S.No:97/3-1.12 acre SL.4 SL.4 Item 2 S.No:301/53/A1 -5 ½ 16ft X real 16ft cent length plot Xreal S.No:30/53-3 ½ cent in length S.No:301/53 plot in A S.No:301/ 53A B 1.S.No:97/3-1.12acre schedule 2.S.No:97/4-0.70 cent Item 3: A house door no:3 in raguram street at arumbakam, chennai – 106 13/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019
11. Regarding the title of the suit properties, it is an admitted case by the parties to the civil suit that Kandasamy pillai obtained item No.1 of the A schedule properties under Partition deed dated 02.03.1996. The above document also marked as Ex.A1. It is submitted that the item No.2 in A schedule properties obtained by purchase and also under exchange deed. Ex.A4 Exchange deed and Ex.A17 Sale deed proved the same. Thus, admittedly, the item Nos.1 and 2 in A schedule properties are ancestral properties and out of income, the item No.2 came into the family.
12. With reference to B schedule property, there are two items mentioned in the B schedule. It is admitted by the parties that they are in the name of Selvanayagi ammal. S.No.97/3 and 97/4 are also mentioned as SL.No:9 and 1 in item No:1 in A schedule property. The 1st plaintiff contended that his mother purchased the property under Ex.A3 in S.No:97/3-1.12 cents out of 2.24 acre and in S.No:97/4-0.70 cents out of 1.41 acre. The remaining properties are family properties. On seeing Ex.A1 partition deed, it is evident that S.No:97/4-0.70 14/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 mentioned as one of the item. B schedule properties are in the name of Selvanayagi ammal. If the same property mentioned in item No:1, it will be decided at the time of final decree proceedings.
13. Considering the above documents, the trial Court arrived a conclusion that items 1 and 2 in the A schedule properties are ancestral properties. Admittedly, Kandasamy pillai died on 04.04.1982. Accordingly, the 1st plaintiff Ramakrishnan and Rajaraman entitled to 5/12 share each and Sarojammal and Kasthuri ammal entitled to 1/12 each in both items in A schedule properties. As far as B schedule properties are concerned, they are the properties of Selvanayagi ammal and hence, Ramakrishnan, Rajaram, Sarojammal and Kashthuri ammal are entitled to ¼ share each in the B schedule properties. Sarojammal died on 25.02.1995. Her share devolves to the plaintiffs 3 and 4 in the other suit in O.S.No.46 of 2012 and subsequently, M/s.Shanthi also died. Hence, her proportionate share devolves to defendants 2 to 4 in the other suit. Thus, the trial Court held that in respect of O.S.No.46 of 2004, the 1st plaintiff is entitled to 5/12 share, the 2nd plaintiff is entitled to 1/12 share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4 th plaintiff jointly entitled to 15/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 1/12 share and 1st defendant entitled to 5/12 share in item 1 and 2 A schedule properties. Further, the 1st plaintiff is entitled to ¼ share, the 2nd plaintiff is entitled to ¼ share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4 th plaintiff jointly entitled to ¼ share and 1st defendant entitled to ¼ share in both B schedule properties. Accordingly, the issues 1 and 4 in O.S.No.46 of 2012 is also answered by the trial Court.
14. With reference to Issue No.2, Whether Mr.Kandasamy pillai and Selvanayagi ammal left out any will as alleged by the plaintiff, the trial Court arrived a conclusion that the plaintiff Mr.Rajaram has not proved the availability of will. In the absence of any evidence to establish the will, the issue decided against the plaintiff and accordingly, the trial Court arrived a conclusion that the plaintiff had not established any will, so as to consider the same.
15. Issue No.3, Whether the plaintiff has any right in item No.3, the trial Court considered the documents, more specifically, Ex.A12 Sale deed stands in the name of Usha / 2nd defendant. It is an admitted fact that there is a house plot and the house is available at 16/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 Arumbakkam, Chennai. Further, it is admitted that the property stands in the name of Usha, wife of Mr.Ramakrishnan. Ex.A12, Sale deed and Ex.A16, Tax receipt proved the said title. It is contended by Mr.Ramakrishnan that he was a Government servant from the year 1973 and after serving 34 years of service in Revenue Department, retired from service on 30.06.2008.
16. Further, he has stated that out of his own income from the employment, he developed the agricultural properties by planting coconut trees and started poultry farm in the field. Further, he constructed a new house in the land. He developed his brother Rajaram and his family by giving amount from his salary. However, the said facts were denied by Mr.Rajaram in the written statement. However, Mr.Rajaram admitted in the evidence that he is managing the properties on the instruction and direction given by his elder brother Ramakrishnan. However, it is contended that the Chennai property belongs to the wife of Mr.Ramakrishnan, namely Usha. Admittedly, the said property at Chennai was purchased during the year 1980 and Mr.Kandasamy pillai died on 04.04.1982. Ex.A13 and Ex.A14 shows that the properties are mortgaged even from the year 17/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 1964 and discharged around 1982 and there is no evidence to establish that the family possessed sufficient means to purchase the said property from and out of the family income. On the other hand, Mr.Ramakrishnan worked in the Government service in a higher post and he had sufficient means to purchase any property out of his own income. This apart, the 2nd defendant is the wife, was also working in a Private company and the father-in-law of Ramakrishnan have contributed some amount for the purchase of the said property at Arumbakkam. This being the facts established, the trial Court arrived a conclusion that the plaintiffs and the defendants are not entitled to any share in the property of Usha and the said property in Item No.3 stands in the name of the 2nd defendant namely Smt.Usha in O.S.No.82 of 2013.
17. With reference to Issue No.4, the trial Court held that Sarojammal and Kasthuri are the daughters of Kandasamy pillai and they are the necessary parties to the suit.
18. With reference to Issue No.5, the Court made a finding that the properties mentioned in O.S.No.82 of 2013 ad O.S.No.81 of 2013 18/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 are covered in O.S.No.46 of 2012, except Chennai property as the trial Court decided that the Chennai property belongs to Usha, the 2nd defendant in O.S.No.82/2013 and the said property is absolutely belonged to Smt.Usha. Accordingly, the trial Court has decided that the 1st plaintiff is entitled to 5/12 share, the 2nd plaintiff is entitled to 1/12 share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4th plaintiff jointly entitled to 1/12 share and 1st defendant entitled to 5/12 share in item No.1 and 2 A schedule properties. Further, the 1st plaintiff is entitled to ¼ share, the 2 nd plaintiff is entitled to ¼ share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4th plaintiff jointly entitled to ¼ share and 1st defendant entitled to ¼ share in both B schedule properties. Item No.3 that is Chennai property mentioned in O.S.No.82/2013 belongs to wife of Ramakrishnan and she is the absolute owner and the said fact was established through Ex.A12 and Ex.A14. Thus, it is not a joint family property for division. Accordingly, the parties are not entitled to any share in respect of Chennai property. In respect of other properties, the sharers were allotted as stated above by the trial Court. As far as permanent injunction is concerned, Mr.Rajaram, in his suit in O.S.No.82/2013, sought for injunction against Ramakrishnan and 19/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 Usha, not to encumber the suit property and not to interfere with enjoyment of poultry farm and EB connection. His sons as plaintiffs in O.S.No.81/2013, also sought for injunction against Ramakrishnan, Rajaram, Usha, not to interfere with peaceful possession and enjoyment of the suit properties and not to encumber the suit properties.
19. The trial Court has stated that the parties are entitled to share in the properties mentioned in A and B schedule properties. As far as Chennai property is concerned, they are not entitled to any share. It is an admitted fact that Mr.Ramakrishnan is residing at Chennai and after retirement, Mr.Rajaram and his sons managing the property by residing in the village. Mr.Rajaram also admitted that he is doing the work as stated by Ramakrishnan. Thus, the enjoyment of the properties by Rajaram and his sons that is plaintiffs in O.S.No.81/2013 and O.S.No.82/2013 is for themselves and on behalf of other co- sharer. However, the trial Court declined to grant injunction sought for not to interfere in possession and enjoyment of suit properties. However, the trial Court granted injunction not to encumber the suit properties till the passing of the final decree, as far as suit schedule 20/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 properties A and B are concerned. As far as C schedule property is concerned, it is held as an absolute property of the 2 nd respondent, Smt.Usha and there is no injunction as against Item No.3, which is Chennai property.
20. Accordingly, a preliminary decree was passed that the 1st plaintiff is entitled to 5/12 share, the 2nd plaintiff is entitled to 1/12 share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4th plaintiff jointly entitled to 1/12 share and 1st defendant entitled to 5/12 share in item 1 and 2 A schedule properties. Further, the 1 st plaintiff is entitled to ¼ share, the 2nd plaintiff is entitled to ¼ share and the 3rd plaintiff and the defendants 2 to 4 being legal heirs of 4th plaintiff jointly entitled to ¼ share and 1st defendant entitled to ¼ share in both B schedule properties. Accordingly, O.S.No.82 of 2013 is decreed partly. The defendants are directed not to encumber the suit properties that is item 1 and 2 till passing of the final decree(A & B Schedule property). The suit stands dismissed with regard to Item No.3 of the property that is Chennai property stands in the name of Smt.Usha.
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21. This Court is of the considered opinion that the trial Court proceeded in the right perspective with reference to the documents placed and the evidences adduced by the respective parties. As rightly contended by the trial Court, the female legal heirs were not impleaded as party defendants in the original suit. This apart, the property in A schedule property is being managed by the 1 st plaintiff Mr.Rajaraman and his sons. However, they cannot take any undue advantage in respect of the family property, wherein the 1st defendant is also a co-sharer, who also contributed for the development of the property by contributing his own funds. However, the rights of the parties are considered with reference to the Succession Law and there is no perversity or infirmity as such in respect of the findings arrived by the trial Court. The trial Court proceeded in a right perspective and accordingly, ascertained the rights of the parties and granted the relief of Partition by fixing the arrears. As far as item No.3 Chennai property is concerned as the same stands in the name of Smt.Usha and she became the absolute owner of the property. The said property cannot be a subject matter of division between the family members.
22. This being the factum, this Court do not find any infirmity or 22/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 perversity in respect of the preliminary decree passed by the trial Court and the respective parties are entitled for the shares as fixed by the trial Court and accordingly, the trial Court is at liberty to proceed with the final decree at the earliest possible, so as to give quietus to the entire issue regarding the partition of family property between the parties to the suits.
23. With these observations, the judgment and decree dated 31.08.2018 in O.S.No.82/2013 is confirmed. Consequently, A.S.No.189 of 2019 stands dismissed. As far as A.S.No.143 of 2019 is concerned, the judgment and decree passed in O.S.No.46 of 2012 dated 31.08.2018 is also confirmed and consequently, A.S.No.143 of 2019 stands dismissed. No costs. Connected miscellaneous petitions are closed.
29.01.2020 Index : Yes Speaking Order Kak 23/24 http://www.judis.nic.in A.S.Nos.189 & 143 of 2019 S.M.SUBRAMANIAM, J.
kak To The learned District Judge, District Court No.II, Kanchipuram.
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