Madras High Court
Ponnnappan vs Balakrishnan on 30 August, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 30.08.2018
RESERVED ON : 21.08.2018
PRONOUNCED ON : 30.08.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Second Appeal No.1175 of 2002 and
C.M.P.No.18372 of 2003
Ponnnappan :Plaintiff / Appellant / Appellant
-Vs-
1.Balakrishnan
2.Rosili
3.Saraswathi
5.Rathinabai
6.Raj : Defendants 1, 3 to 7 / Appellants 1, 3 to 7
/ Respondents
Prayer: Second Appeal filed under Section 100 of the Code of the Civil
Procedure, to set aside the judgment and decree dated 06.08.2001 made in
A.S.No.74 of 2000 and cross objection on the file of the Sub Court,
Padmanabhapuram, confirming the judgment and decree dated 27.06.2000 made in
O.S.No.554 of 1996 on the file of the Additional District Munsif Court,
Padmanabhapuram.
!For Appellants :Mr.M.A.Abdul Wahab
^For R1 :Mr.PT.S.Narendraasan
for Mr.R.Nandakumar
For R2 to R5 : No Appearance
For R6 : Exparte
:JUDGMENT
The plaintiff in O.S.No.554 of 1996 on the file of the Additional District Munsif Court, Padmanabhapuram, is the appellant herein. The said suit was dismissed by judgment and decree dated 27.06.2000. As against the same, A.S.No.74 of 2000 had been filed by the present appellant, which came up for consideration before the Subordinate Court, Padmanabhapuram. The said Court, by judgment and decree dated 06.08.2001, confirmed the judgment and decree of the trial Court and dismissed the appeal.
2.O.S.No.554 of 1996 had been filed by Ponnappan, S/o.Thangaiya Nadar. The first defendant, Balakrishnan was his brother. The property given in schedule 'D' of the plaint originally belonged to the Grandfather, Gnanamani. He died in 1972. Thereafter, the plaintiff claimed that the 'D' schedule property devolved on to him and to the first defendant in two equal parts. In 1985, the plaintiff and the first defendant divided all other properties, but did not divide the house. The other properties given in 'A' schedule was allotted to the plaintiff and given in 'B' schedule was allotted to the first defendant. The first defendant had sold a portion of 'B' schedule property. He also sold about 14 cents to the defendants 2 and 3. There were disputes with respect to the pathway. The plaintiff claimed that the first defendant had demanded that fresh pathway must be constructed. The first defendant also threatened to interfere with the peaceful possession of the plaintiff's share.
3.The plaintiff, thereafter, filed the suit seeking declaration of title with respect to the 'A' schedule property and also for permanent injunction restraining the defendants from interfering with his peaceful possession. In the alternate, it has also prayed he should be allotted 1/2 share in the 'D' schedule property. Since the fourth defendant had purchased a portion of the 'D' schedule property, she was impleaded as defendant in the suit. The plaintiff also sought damages from the first defendant to a sum of Rs.5,000/-.
4.In the written statement of the first defendant, it was stated that after the death of Grandfather, Gnanamani, his son, namely, the father of the plaintiff and the first defendant, Thangaiya Nadar, inherited the properties. After his death, his properties devolved on to his sons and daughters. It was pointed that two of the daughters Saraswathi and Rathnabai, were not joined as parties to the suit. It was claimed that they are necessaries parties. The partition said to have been effected in 1985, by the plaintiff was denied. The allotment of 'A' schedule property to the plaintiff and 'B' schedule property to the first defendant was disputed. It was stated that there was a partition only on 16.01.1996. A rough sketch was also prepared. The plaintiff and the first defendant enjoyed the property in accordance with the partition, which was effected on 16.01.1996. 'A' schedule was not allotted to the plaintiff. It was stated that the plaintiff was quarrying sand with the help of 3rd parties damaging the topography of the lands. It was stated that to escape from the payment of damages on that account, the suit had been filed. It was specifically stated that the plaintiff had no right to claim declaration of title over the 'A' schedule property. It was stated that the suit should be dismissed.
5.The defendants 5 and 6 also filed their written statement, they stated that they also have a share in the property. It must be mentioned that they are the sisters of the plaintiff and the first defendant. They had been impleaded as defendants 5 and 6, on the strength of the written statement of the first defendant, who had claimed that the suit was bad for non-joinder of the sisters, who also had a share in the property. The defendants 5 and 6 in their written statement also challenged the claim of the plaintiff seeking declaration of title over 'A' schedule property. It had also been denied that the Grandfather, Gnanamani, had executed a Will. It had been stated that their share should be allotted to them.
6.The first defendant also filed an additional written statement. In the additional written statement, the first defendant sought damages to be paid to him. He claimed damages against the plaintiff to a total sum of Rs.15,780/-.
7.The defendants 5 and 6 also filed additional written statement. They also sought damages against the plaintiff.
8.On the basis of pleadings, the Additional District Munsif Padamabhapuram, framed the following issues:
1)Whether the 'A' schedule property and 1/2 share in the 'C' schedule property had been allotted to the plaintiff by oral partition in the years 1985 and 1996?
2)Whether the plaintiff was entitled for the relief of declaration of title?
3)Whether plaintiff is in enjoyment and possession of the 'A' schedule property and has owning enjoying over 'C' schedule property?
4)Whether the plaintiff had incurred any loss because of the first defendant?
5)Whether the plaintiff is entitled to damages from the first defendant?
6)Whether the plaintiff is entitled to partition and separate possession of 'D' schedule property?
7)Whether the plaintiff is entitled 1/2 share in the 'D' schedule property?
8)Whether the plaintiff is entitled to for relief of permanent injunction?
9)to what other reliefs, the plaintiff is entitled to?
9.The following additional issues were also framed:
1)Whether the first defendant is entitled to for damages to a sum of Rs.15,750/- from the plaintiff?
2)Whether the first defendant is entitled to for relief of partition?
3)Whether the defendants 5 and 6 were entitled to for damages of Rs.4,500/- from the plaintiff?
4)Whether the defendants 5 and 6 are entitled to for the relief of partition?
10.On consideration of the oral and documentary evidence, the learned Additional District Munsif, Padmanabhapuram, dismissed the suit with respect to the relief of declaration of title and grant of injunction. However, the learned Additional District Munsif granted the alternative relief of partition and held that the plaintiff was entitled to 1/4 share in the 'D' schedule property. It was also held that the defendants 1, 5 and 6 were also entitled to 1/4 share in the 'D' schedule property. The learned Additional District Munsif had negatived the claims of oral partition either in the year 1985 or in the year 1996. It was held that the properties had devolved from Gananamani, to his son, Thangaiya Nadar and consequently on his death, his children, namely, the plaintiff, defendants 1, 5 and 6 were entitled to equal 1/4 share in the suit properties. The learned Additional District Munsif rejected the claim of the plaintiff for declaration of exclusive title. The relief of damages sought by either party against others was also negatived.
11.This judgment and decree was taken up in appeal in A.S.No.74 of 2000. Pending the appeal, the second defendant had died and her legal heir was brought on record as 7th respondent. The appeal came up for consideration before the Subordinate Judge, Padmanabhapuram. Cross objection had also been filed by the first defendant. Both the appeal and the cross objection were considered together and the learned Subordinate Judge, once again examined the evidence on record. He however, dismissed the appeal. During the course of his findings, the learned Subordinate Judge held that there was no evidence for oral partition either in the year 1985 or in the year 1996. It was held that after Ganamanai, the property was devolved on to his son, and thereafter his four children were entitled to claim an equal share. It had been stated that the plaintiff, defendants 1, 5 and 6 were entitled to an undivided 1/4 share in the suit property.
12.Challenging this judgment and decree, the plaintiff had filed the present second appeal. At the time of admission, this Court had framed the following substantial question of law:
?Being in the nature of coparcenary property, whether the decree of the Courts below in giving equal share to the female member also in the suit for partition along with the males is in violation of Section 6 of the Hindu Succession Act, 1956??
13.It is seen that the controversies had narrowed down to the allotment of shares to the 5th and 6th defendants, who have been shown as 4th and 5th respondents in this appeal.
14.Heard arguments advanced on either side.
15.It had been the contention of the learned Counsel for the appellant that the 4th and 5th respondents were married before the year 1980. It had been stated that the property originally belonged to Gnanamani, the paternal Grandfather. He died in the year 1972. He executed a registered Will, Ex-A1 on 22.11.1968, in favour of the plaintiff and the first defendant. Thereafter, the plaintiff and the first defendant effected an oral partition in the years 1985 and 1996. There was a dispute with respect to pathway. Again a settlement was effected. A sale deed was executed in Ex-A12 and in that it was mentioned that and oral partition had been effected.
16.However, the first respondent denied the oral partition said to have been effected in the year 1985 and insisted that there was an oral partition only in the year 1986. Both the Courts below had rejected the contentions that there were oral partition either in the year 1985 or in the year 1996. Consequently, the alternative relief of partition was granted.
17.The only issue to be now is decided whether the 4th and 5th respondents, who are daughters in the family and who had been impleaded subsequently in the suit on the strength of the written statement filed by the first respondent, would also be entitled to a share. They were originally not shown as defendants. The first respondent, who was the first defendant in the suit had filed a written statement and claimed that they were necessary parties. Thereafter, the plaintiff filed I.A.No.285 of 1999. By order dated 20.07.1999, they were impleaded as 5th and 6th defendants.
18.It is seen that the appellant and the first respondent claimed exclusive title to the suit property through a Will said to have been executed by the grandfather, Gnanamani. However, the Will was not produced before the Court. Even, if they had produced the Will, it would have to be proved in manner known to law. It is also seen that there is no evidence that by an oral partition in 1985, the 'A' schedule property had been allotted to the plaintiff and the 'B' schedule property had been allotted to the first defendant. As a matter of fact, there is a clear finding by the Courts below that there was no oral partition in the year 1985. That being a finding on fact, it cannot be reopened for consideration. Similarly, both the Courts below had also rejected the contention that there was an arrangement between the plaintiff and the first defendant in the year 1996. Again that being a finding on fact, it cannot be reopened for consideration by this Court. It is also seen that the plaintiff had not produced any document to show that there had been a mutation in the revenue records to his name insofar as 'A' schedule property is concerned. If the 'A' schedule property and 'B' schedule property had been divided between the plaintiff and the first defendant, then they would have certainly muted their names in the revenue records. It is also seen from the evidence of the plaintiff that the respondents 4 and 5 were not parties to the alleged oral partition. The Will of the Grandfather, Gnanamani, had also not been produced. Consequently, the claim by the appellant and the first respondent through the Will said to have been executed by Gnanamani has to be rejected. It is, therefore, clear that the appellant cannot be granted exclusive title to the 'A' schedule property.
19.Ex-A9, during trial, had been relied on as a partition deed. However, it is seen that it had been prepared only in white paper and is also a xerox copy. Consequently, it is inadmissible as evidence. The stamp duty had also not been paid on the said document. Ex-A2 to Ex-A4 are copies of plans. There are no signatures of the parties. It is also not known, who had prepared the said plans. Consequently, the said documents cannot also be considered by this Court. In the result, owing to the rejection of all the above documents, it has to be held that the appellant and the first respondent cannot claim exclusive right to the suit property. Ex-B1 and Ex- B2, dated 01.08.1997, are documents executed by respondents 5 and 6, asserting right over the suit property. The Grandfather, Gnanamani, died in the year 1975, after the promulgation of the Hindu Succession Act, 1956, on 17.06.1956. The property devolved to his son Thangaiya Nadar. On the death of Thangaiya Nadar, it devolved on to his wife Chellamma Naattachi and to the appellant and the 1st, 5th and 6th respondents in equal share.
20.I hold there is no infirmity in the judgment of the trial Court and the first appellate Court in granting equal share as that of the appellant and the 1st respondent to the 5th and 6th respondents.
21.Consequently, I find no reason to differ with the judgment and decree of the trial Court and the first appellate Court. The judgment and decree granted in O.S.No.554 of 1996, dated 27.06.2000 by the learned Additional District Munsif, Padmanabhapuram, which was confirmed in A.S.No.74 of 2000 by the Subordinate Judge, Padmanabhapuram, by judgment and decree dated 06.08.2001 does not require any interference.
22.The substantial question of law is answered that the Courts below have not committed any error in granting equal share to the female members, as that of the male members. Consequently, the second appeal stands dismissed, in the circumstances of the case without costs. Consequently, connected miscellaneous petition is closed.
To
1.The Subordinate Judge, Padmanabhapuram.
2.The Additional District Munsif, Padmanabhapuram.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.