Madras High Court
Damodara Naicker (Died) And 10 Ors. vs Collector Of Chengalpattu District At ... on 28 February, 2003
Equivalent citations: 2003(2)CTC551
Author: M. Chockalingam
Bench: M. Chockalingam
ORDER A.S.Venkatachalamoorthy, J.
1. The legal representatives of the first claimant in A.C.No. 3 of 1983 on the file of District Judge, Chengalpet are the appellants herein.
2. An extent of 9 acres and 6 cents comprised in survey No. 29 in Mukthapudupet village, Saidapet Taluk, Chengalpet District was acquired for defence purposes i.e, for Central Vehicles Depot, In fact, originally this land was requisitioned by the Military Department during the second world war in 1944-45 and that was held till the date of acquisition. The Special Deputy Collector, Land Acquisition, Ambattur, in his enquiry found that the said land stands registered in Patta No. 70 in the name of Damodara Naicker. However, during enquiry, Harikrishna Naicker, brother of Damodara Naicker and Varadammal, wife of late Balakrishna Naicker (another brother of Damodara Naicker) also claimed a share. Thus, while Damodara Naicker claimed that he is absolute owner of the property, the two other brothers viz., Harikrishna Naicker and Varadammal, wife of Balakrishna Naicker (another brother, of Damodara Naicker) claimed that they are also entitled for a share. The Collector of Chengalpet in his letter dated 6.5.1982 took the view that the compensation amount has to be apportioned among the three claimants. Damodara Naicker did not agree and he filed objections. Ultimately, as per the order in W. P. 6211 of 1982 on the file of this Court, the dispute was referred to Arbitrator for decision. The Government appointed the District Judge, Chengalpet as Arbitrator to settle the dispute. Thus, the matter came to the file of the District Judge, Chengalpet as Arbitration Case and the same is numbered as A.C.No. 3 of 1983.
3. Before the lower Court, on behalf of Damodara Naicker, it was contended that an oral partition in the family took place in the year 1932 and thereafter, the property in question was purchased by him under a sale deed dated 1.8.1934 and ever since he has been in possession and enjoyment of the property. It is further claimed that the land was originally requisitioned and later on acquired under R.A.I.P. Act, 1952. Patta in respect of the land stood only in the name of the first claimant Damodara Naicker. Harikrishna Naicker and Balakrishna Naicker, two brothers of Damodara Naicker, never enjoyed this property and it was never treated as joint family property. The rent was paid from 1943 only to the first claimant and it was not shared by the three brothers.
4. On the other hand, the two brothers of the Damodara Naicker would claim that the land in question belong to all the three of them and that they were members of the Joint Hindu Family and the property was purchased out of the income from joint family nucleus and joint family properties (i.e.,) lands in Papparambakkam village, Saidapet Taluk. At the time of purchase, second claimant was unmarried and the first claimant was married. Balakrishna Naicker was mentally unsound. Hence the property was purchased in the name of the first claimant. According to them, the first claimant himself given a statement to the authorities at the time of requisitioning to the effect that all the three brothers are having equal share in it. Their further case is that the family is still a joint one and the second claimant Harikrishna Naicker and Varadammal, wife of Balakrishna Naicker are each entitled to l/3rd share.
5. During enquiry, all the Claimants deposed before the Court and marked several documents,
6. The learned District Judge, after elaborately considering the materials available on record came to the conclusion that all the three Claimants would be entitled for l/3rd share as the property was acquired by the joint family out of the income from the joint family funds. Being aggrieved by the said judgment, the present appeal has been filed by the first claimant Damodara Naicker.
7. The learned counsel appearing for the appellants reiterated the stand of Damodara Naicker contending that there was an oral partition in the year 1932 and that thereafter Damodara Naicker purchased the property in question after a couple of years, that is to say, in August 1984 under a registered sale deed Ex.A-6. Further submission is made to the effect that only Damodara was paid rental by the defence department and that the same was not shared by all the brothers. Reliance was placed on revenue documents viz., Patta so also the admission made by Harikrishna Naicker to the effect that in 1932, leaving out the mortgaged property, the other properties were partitioned.
8. On the contrary, the counsel for the Claimants 2 and 3 contended that the oral partition claimed in the year 1932 is not true and that Claimants 2 and 3 have been receiving their share out of the rent paid by the Defence Department. The learned counsel further argued that the oral partition pleaded by the appellant has not been proved, but on the other hand Damodara Naicker has clearly admitted in his statement before the authorities that his two brothers are entitled for a share in the land.
9. Even according to Damodara Naicker prior to 1932, himself and his two brothers constituted Joint Hindu Family and the joint family owned 10 acres of land in Papparambakkam village. Damodara Naicker would plead oral partition in the year 1932. It is for him to prove the same.
Admittedly he has not examined any witness in this regard Damodara Naicker in the evidence has deoosed as Ex.B-5 is the Birth Register extract in respect of the first son and the same would show that he was born in the year 1949. Ex.B-6 is the Birth Register extract in respect of the second son, according to which the second son was born in the year 1952. If that is so, the first girl child was born somewhere in the year 1946. In which case, the marriage should have taken place in the year 1944. He has deposed that one year after the marriage, partition took place. If that is so, the partition should have taken place in the year 1945. Whereas, the claim is that there was an oral partition in the year 1932. Thus it could be seen that Damodara Naicker has two different versions on the question when such oral partition took place.
10. Admittedly the Joint family mortgaged the property on 12.2.1929 and that was subsisting at least till 1935. That being so, certainly if there was a partition in the year 1932, provision would have been made for discharge of this mortgage, in the sense, that the brothers would have decided as to who should discharge the mortgage. Damodara Naicker has nothing to say on this aspect.
11. Yet another circumstance which should go against the claim of Damodara Naicker is that under the original of Ex.B-4, the three brothers sold a property on 7.11.1935. The question would immediately arise as to how was that all the three joined to execute a sale deed, if really the brothers had divided their properties by then.The learned counsel appearing for the appellant would argue that all the three brothers signed the sale deed since the amount was utilised to discharge the mortgage that was executed in 1929 (i.e.,) prior to the partition. We are not inclined to accept this explanation put forth on behalf of the appellants.
12. There is yet another important piece of evidence which would go very much against the appellants. Before the authorities, the Claimants had given statements. Ex.B-1 is the statement given by Damodara Naicker, wherein he had stated as under,
13. The learned counsel for the appellants then vehemently contended that the second Claimant Harikrishna Naicker had in his statement made before the Court clearly admitted that there was an oral partition in the year 1932, leaving out the mortgaged property. This statement was made on 11.10.1984. But when, he was called for the second time and further examined on 20.10.1984, Harikrishna Naicker clarified stating that he had made the statement by slip and that may be ignored and that is not his case. What is to be remembered is that when Damodara Naicker claims oral partition in the year 1932, it is for him to prove the same. In his signed statement Ex.B-1 before the authorities he had admitted that the brothers are entitled for a share. That being so, it has to be held that Damodara Naicker has not proved his case and in which case the factual finding has to be that when the property in question was acquired, it was a joint family property and hence all the three brothers are entitled for a share.
14. In this view of the matter there are no merits in the appeal and the same is dismissed. No costs.