Madras High Court
A.S.M.Balasubramanian vs A.S.M.Radhakrishnan .. R1 In ... on 13 March, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 13.03.2012
CORAM:
THE HONOURABLE MR. JUSTICE G.RAJASURIA
A.S.Nos.249 and 420 of 2007
A.S.M.Balasubramanian .. Appellant in A.S.249 of 2007
& R1 in A.S.No.420 of 2007
Vs.
1. A.S.M.Radhakrishnan .. R1 in A.S.No.249 of 2007
& Appellant in A.S.No.420 of 2007
2. A.S.M.Muthiah (deceased)
3. Avaiyambal
4. J.Sulochana Devi
5. S.Vedanayaki
6. Prabavathi
7. S.Sukumaran
8. D.K.Rangaraj
9. S.D.Amerendran
10.S.D.Karthikeyan
11.S.D.Harikrishnan Raj
12. M.Vijayalakshmi
13.R.Thenmozhi
14.K.Kalaivani
15.A.M.Palanikumar .. R2 to R15 in both appeals
RR12 to 15 brought on record as LRs of deceased R2 vide order of Court dated 07.12.2011.
These appeals are focussed as against the judgment and decree passed in O.S.No.2074 of 1996 dated 31.07.2006 on the file of the II Additional Judge, City Civil Court, Chennai.
IN A.S.No.249 OF 2007:
For appellant : Mrs.Hema Sampath, Sr.Counsel
for Mr.S.Venkateswaran
For Respondents : Mr.M.S.Subramanian for R1
Mr.V.Bhiman for R3 to R6, R8 to R11
Mr.V.R.Shanmuganathan for R12 to R15
IN A.S.No.420 OF 2007:
For appellant : Mr. M.S.Subramanian
For Respondents : Mr. S.Venkateswaran for R1
Mr.V.Bhiman for R3 to R6, R8 to R11
Mr.V.R.Shanmuganathan for R12 to R15
JUDGMENT
A.S.No.249 of 2007 is focussed by the first defendant and A.S.No.420 of 2007 is focussed by the plaintiff, as against the judgment and decree dated 31.07.2006 passed in O.S.No.2074 of 1996, which was one for partition, on the file of the II Additional Judge, City Civil Court, Chennai.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A recounting and recapitulation of the relevant facts absolutely necessary and germane for the disposal of these two appeals would run thus:
(i) The plaintiff - Radhakrishnan filed the suit for partition with the following prayers:
"(a) For partition and separate possession of his 66/280 share in the suit property
(b) On the defendants failing to do so, the Court itself by appointing an Advocate Commissioner to divide the suit property by metes and bounds and allot the plaintiff's 66/280 share and to deliver possession of the same and pass a final decree in terms thereof." (extracted as such)
(ii) The suit property comprised of five items of lands bearing Survey Nos.53, 40, 51 and 54/2, measuring an extent of 0.50 cents, 0.79 cents, 3.35 cents and 0.35 cents respectively and 0.9 cents on the southern side of Survey No.64, totally measuring an extent of 2.16 acres.
(iii) D1 filed the written statement contending that the suit was bad for partial partition, in view of the fact that the following properties were left out:
"........ 28 cents in S.No.58, 9 cents in S.No.64, 8 cents in S.No.43/2, 4 cents in S.No.46/2, 13 cents in S.No.48, 11 cents in S.No.50 and 13 cents in S.No.238/2, totalling to 86 cents."
(iv) The plaintiff also filed reply statement to the contention raised by D1 as under:
"Land measuring 9 cents in S.No.64 is already included in this suit. The other lands namely 8 cents in S.No.43/1, 4 cents in S.No.46/2, 13 cents in S.No.48 and 11 cents in S.No.50 were kept as common as they did not exclusively belong to the family of Murukesa Mudaliar. These properties were kept common for the bigger joint family consisting of Murukesa Mudaliar and his heirs, Deiva Sigamani Mudaliar, Subramania Mudaliar, Arumuga Mudaliar & Vedantam Mudaliar and therefore the said properties cannot be divided."
(v) D2 filed the written statement admitting the claim of the plaintiff. Pendente lite D2 died and D2 is represented by his legal heirs, namely D12 to D15 and they fall in line with the plaintiff; D3 remained absent and set ex parte; D4 filed a separate written statement. Even though D5, D7 and D8 filed written statements, they did not participate in the trial. D6 filed memo adopting the written statement of D8.
(vi) The trial Court, framed the relevant issues.
(vii) During trial, the plaintiff-Radhakrishnan examined himself as P.W.1 and Exs.A1 to A24 were marked. The first defendant-Balasubramanian examined himself as D.W.1 and no document was exhibited on the defendants' side.
(v) Ultimately the trial Court decreed the suit granting the following reliefs:
"In the result preliminary decree is passed in favour of the plaintiff, D1, D2 and D5 declaring that the plaintiff, D1, D2 are entitled to 37/168 share and D5 is entitled to 9/168 share."
(extracted as such)
4. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, the two appeals emerged. The plaintiff-Radhakrishnan filed A.S.No.420 of 2007; whereas, D1-Balasubramanian filed the separate appeal in A.S.No.249 of 2007.
5. Keeping in mind the limited scope of both the appeals and the arguments advanced thereon, only the germane facts necessary for the effective adjudication, are narrated thus.
6. The indubitable and indisputable or atleast the undeniable facts would run thus:
One Singaravelu had five sons namely (1) Deivasigamani, (2) Subramania, (3) Arumugha, (4) Murugesa and (5) Vedantham. Sampoornammal happened to be the wife of the said Murugesa. During the year 1951, the said Murugesa died leaving behind his legal heirs, namely, his wife Sampoornammal, his children Singaravelu, Balasubramaniam (D1), Anandavelu, Radhakrishnan, Muthiah (D2), Saraswathi (D3), Avayambal (D4) and Sulochana (D5). Singaravelu had two wives namely Soundarammal and Vedanayaki (D6). Soundarammal died in the year 1954, so to say, she pre deceased Singaravelu who died in 1974 leaving behind Vedanayaki (D6) his second wife and his daughter Prabavathy (D7) and Sukumaran (D8). Anandavelu, one of the sons of Murugesa and Sampoornammal died in unmarried state on 02.11.1958. Muthiah (D2) died pending appeal on 01.11.2010 leaving behind his legal heirs Vijayalakshmi (D12), Thenmozhi (D13), Kalaivani (D14) and Palanikumar (D15). Saraswathi (D3) died on 26.08.2003. Her husband Durairaj pre deceased her. Saraswathi's legal heirs are Rangaraj (D9), Amarendran (D10), Karthikeyan (D11) and Harikrishnaraj (D12).
7. Unarguably and unassailably the suit properties except the suit item bearing S.No.58, happened to be the properties of the original propositus Singaravelu referred to supra, so to say, the father of the five sons namely (1) Deivasigamani, (2) Subramania, (3) Arumugha, (4) Murugesa and (5) Vedantham. The item bearing S.No.58 originally belonged to Gnanambal who donated it to her grand children namely (1) Singara Mudaliar (2) Manicka Mudaliar (3) Rajeswaran Mudaliar and (4) Kumarasamy Mudaliar, of whom the said original propositus Singaravelu Mudaliar got the S.No.58 and virtually both parties in the suit treated that item of the property also as part and parcel of the joint family properties of Singaravelu Mudaliar.
8. O.S.No.37 of 1925 was filed by Vinayaka Mudaliar, seeking partition and in that various items of properties were allotted to him, as evidenced by the final decree dated 19th November 1943 in I.A.No.454 of 1942 in O.S.No.37 of 1925; the operative portion of it is extracted hereunder for ready reference:
"(a) That the petitioners and respondents 2 and 3 do get possession of Lot I and Lot II properties, Ist respondent do get possession of Lot IV and respondents 4 and 5 do get possession of Lot III properties detailed hereunder:
(b) That the petitioners and respondents 2 and 3 who get the house specified in Lot II do pay Rs.25/- to Ist respondent and Rs.25/- to respondents 4 and 5;
(c) That the three different sharers (Petitioners and Respondents 2 and 3 going together) do keep in common for their use the following plots:
S.No.43/0-8 cents used as a road;
S.No.48 0-13 cents wherein there is a Kalothumedu S.No.258/2 0-13 cents wherein there is a road S.No.50 0-11 cents wherein there is a raised ground.
Survey No.46. 0-4 cents wherein there is a road.
(d) .........."
9. At this juncture it is just and necessary to point out from the above decree that the item bearing S.No.58 was divided into three parts as under:
(1) The first part (Lot I) measuring 20 cents and the second part (Lot III) measuring 1.62 acres, both were allotted to Arumuga Mudaliar, Murugesa Mudaliar, Manickammal and Thirupurammal.
(2) The third part (Lot IV) measuring 1.61 acres was allotted to the share of the plaintiff therein, the said Vinayaka Mudaliar.
10. As such, the total extent of S.No.58 was 3 acres 43 cents only. The significance of mentioning the total extent here is to find out as to whether the total extent is 3 acres 43 cents as asserted by the first defendant herein or 3 acres 23 cents as asserted by the plaintiff herein based on the description in the said Gnanamabal's donation deed Ex.A11. The contention on the side of the learned counsel for the plaintiff herein is that when Gnanambal herself donated only 3 acres 23 cents in S.No.58 in favour of his four grand children, there could not be an extent of 3 acres 43 cents in the same survey number which could be partitioned as per the final decree in O.S.No.37 of 1925 and as such, there was 20 cents of land in excess in the description in the final decree. This would be further discussed infra at the appropriate stage.
11. One fact is clear that by metes and bounds the extent of 1.61 acres was not found set out in the said final decree proceedings and that paved the way for lot of difficulties and discomfitures.
12. One other suit O.S.No.431 of 1955 was filed by the sons of deceased Murugesa Mudaliar, namely Singaravelu Mudaliar, Anandavelu Mudaliar, Balasundara Mudaliar, Radhakrishnan and Muthia Mudaliar (minor) and Sivakamiammal as against Arumugha Mudaliar and Selva Ammal, and in that the following decree was passed on 25.04.1957:
"i) That the plaint-scheduled properties (described hereunder) be divided into five equal shares by metes and bounds and that the plaintiffs be allotted two such shares;
ii) That a commissioner will be appointed to partition the two fifth share of the plaintiffs;
iii) That the amount spent towards charities and kist alleged by the 1st defendant will be gone into at the time of the final decree proceedings; and
iv) That the costs of this suit will be borne out from the estate:
Schedule of property LOT :1 @ (Kodungaiyur Village Saidapet Taluk) Nanja Lands bearing survey No.47, 3.69 cents survey No.53 0.58 cents survey No.40 0.79 cents and survey No.58 0.28 cents total 5.26 cents and 0.83-1/2 cents of punja Tope with trees on southern side.
LOT II: Nanja lands bearing survey No.51 4-70 cents and survey No.64 0.45 cents, total 5-15 cents and 0.81 -1/2 cents of punja tope next to lot 1 with the trees thereon. Total land allotted to them is thus 10 acres 41 cents of Nanja and 1 acre 67 cents punja tope ..."
13. The final decree was passed on 27.02.1960 in I.A.No.87 of 1959 in O.S.No.431 of 1955 and the relevant portion of the final decree is extracted hereunder:
"(i) That the plaintiffs 1 to 5 be and are hereby allotted 0.58 cents in S.No.53 0.79 cents in S.No.40 0.28 cents in S.No.58 0.35 cents in the north western portion of S.No.51 0.35 cents in S.No.54/2 and 0.9 cents in the southern portion of S.No.64, which are respectively indicated in the sketches No.7, 5 plot marked A B C D in sketch 6 plot 4 in sketch 3, plot 5 in sketch 4 and plot 5 in sketch 2 of the Commissioner's report hereto attached the total extent being 2 acres 44 cents.
(2) .......
(3) .......
(4) ......."
The said extent of 28 cents in S.No.58 referred to supra was allotted to the share of the plaintiffs 1 to 5 therein namely (1) Singaravelu Mudaliar, (2) Anandavelu Mudaliar, (3) Balasundara Mudaliar, (4) Radhakrishnan and (5) Minor Muthiah.
14. Both sides in unison would state that the exact location of the 28 cents of land in S.No.58 was not found spelt out in the earlier final decree in O.S.No.37/1925, however in the final decree dated 27.02.1960, the said 28 cents in S.No.58 is shown on the northern most portion as A B C D portion.
15. Here the learned counsel for the plaintiff would contend that the entire extent of S.No.58 was measuring only 3.23 acres and in such a case, excluding 28 cents still one cannot have the same 3.23 acres of land on ground. In other words, if at all the 28 cents of land has to be located as per the version of D1, then within that 3.23 acres alone that should be located, for which there is no evidence because according to him the entire 3.23 acres was divided into two, so to say 1.61 acres was allotted to the share of Vinayaka Mudaliar and the remaining 1.62 was allotted to the share of Manickammal and Tirupurammal and their heirs as per the decree in O.S.No.37 of 1925.
16. The learned counsel for the plaintiff placing reliance on the records would detail and delineate that the said Vinayaka Mudaliar was indebted to the Madras Kachaleeswarar Division Co-operative Bank and in that process of recovering the debt, the Bank proceeded against his property, namely the S.No.58 measuring an extent of 1.61 acres and got an award and ultimately with the help of the Court, delivery was obtained. Thereafter, the said Co-operative Bank sold the same in auction, in which Sampoornammal, wife of said Murugesa purchased the extent of 1.61 acres in the undivided S.No.58. Whereupon, Sampoornamal filed O.S.No.5 of 1968 as against the other co-sharers of that S.No.58 namely (1) Thavamani Mudaliar, (2) Damodara Mudaliar, (3) Balasubramania Mudaliar and (4) Vettipalayam, wherein the final decree was passed as under; the operative portion is extracted hereunder for ready reference:
"(i) that the Wet S.No.61 measuring 3 acres 68 cents be and is divided into two equal shares and that the petitioner/plaintiff be and is allotted the RED SHADED portion measuring 1 acre 84 cents for her share, as per plan attached herewith.
(ii) that the wet S.No.62 measuring 3 acres 60 cents, as per plaint and 3 acres and 70 cents as per the Commissioner, be and is divided into two equal shares and that the plaintiff be and is allotted the RED SHADED portion measuring 1 acre 85 cents for her share, as per plan attached herewith.
(iii) that the wet S.No.58 measuring 3 acres 23 cents be and is hereby divided into two equal shares and that the plaintiff be and is hereby allotted the RED SHADED portion measuring 1 acre and 61-1/2 cents for her share, as per plan attached herewith.
(iv) ..........
(v) ...........
(vi)............
(vii)..........."
17. A mere running of the eye over it would indicate and exemplify that the red coloured portion measuring 1 acre 61-1/2 cents in the plan attached was allotted to Sampoornammal. However, both sides in unison would submit that they could not get that plan bearing the red coloured portion.
18. The learned counsel for the plaintiff would express and expatiate that the said extent of 1.61-1/2 acres of land in S.No.58 was donated by Sampoornammal by virtue of a settlement deed executed in favour of the plaintiff and the plaintiff's sons, who in turn sold it to a third party and that is not the subject matter of the present suit. However, the learned Senior Counsel for D1 would raise a technical point that non inclusion of the extent of the said 28 cents of land in S.No.58 was fatal to the partition suit, as it could be labelled or dubbed as one falls foul of partial partition. Whereas, the learned counsel for the plaintiff would reply by pointing out that the plaintiff filed the suit based on his own pleadings and evidence and it is for the defendants to prove clinchingly that over and above an extent of 3.23 acres in S.No.58, there existed additionally 28 cents of land as now claimed by D1.
19. D4 Avaiyambal would claim that she is entitled to more share in the suit property than what the plaintiff projected in her favour in the plaint. According to her, Sampoornammal was referred to in the plaint as though consequent upon the death of Singaravelu and Anandavelu her sons, she got some shares only, and such shares in turn on her death was allottable to her heirs including Avaiyambal. But according to Avaiyambal on the death of Murugesa, she became one of the legal heirs along with Murugesa's sons by virtue of Hindu Women's Rights to Property Act, 1937, as got enlarged in the year 1947 which ultimately got evolved into an absolute one by virtue Section 14(2) of the Hindu Succession Act.
20. The plaintiff's appeal bearing A.S.No.420 of 2007 is precisely focussed by stressing the points to the effect that the trial Court was not justified in holding that Sampoornammal was one of the legal heirs of the deceased Murugesa and that she got as per the aforesaid cited provisions of law more shares than what the plaintiff had projected. As per plaintiff, Sampoornammal waived her right over her shares without claiming any right over them.
21. Whereas, D1 filed an appeal in A.S.No.249 of 2007 on the main ground that the said extent of 28 cents in S.No.58 was not included as one of the suit properties and that the suit itself was bad for partial partition, which the trial Court failed to take note of.
22. As such the points for consideration in both the appeals are as under:
(1) Whether the trial Court was justified in treating Sampoornammal as one of the legal heirs on par with her sons to Murugesa, consequent upon his death during the year 1951, by virtue of Hindu Women's Rights to Property Act 1937, as got enlarged in the year 1947, which ultimately got evolved into an absolute one by virtue of Section 14(2) of the Hindu Succession Act?
(2) Whether the plea of the plaintiff that Sampoornammal by her non assertion of her right over her shares lost her right over them?
(3) Whether the trial Court was justified in rejecting the contention of D1 that in view of an extent of 28 cents in S.No.58 having been not included as one of the suit properties, the suit was bad for partial partition?
(4) Whether there is any perversity or illegality in the jugment and decree of the trial Court?
23. All these points are taken together for discussion as they are inter linked and inter woven, entwined and inter twined with one another.
24. I would like to fumigate my mind with the following provisions of law:
(1) Hindu Women's Rights to Property Act XVIII of 1937 (2) The Madras Hindu Women's Rights to Property (Extension to agricultural land) Act XXVI of 1947 w.e.f. 26.11.1946.
25. Ex facie and prima facie it is clear that Section 3 of the Hindu Women's Rights to Property Act 1937 would confer only limited estate on the widow of a deceased co-parcener and by virtue of the Madras Hindu Women's Rights to Property (Extension to agricultural land) Act 1947, in respect of non agricultural lands also the said right accrued in favour of the widow. Incontrovertibly and indubitably, Murugesa died in the year 1951, so to say, obviously and axiomatically after 1947. Sampoornammal died only on 12.01.1991, so to say, long after coming into vogue of Section 14 of the Hindu Succession Act. As such, the trial Court au fait with law and au courant with facts appropriately and appositely held that Sampoornammal was to be treated as one of the legal heirs of Murugesa along with his five sons. As such in Murugesa's joint family properties, Sampoornammal was entitled to 1/6th share, Anandavelu, son of Murugesa and Sampoornammal, died on 02.11.1958 and it is quite obvious that as on the date of death of Anandavelu, Hindu Succession Act was in vogue. Accordingly, the mother should be treated as the Class I heir of her deceased son Anandavelu who died in unmarried state. As such, the 1/6th share of Anandavelu also devolved upon Sampoornammal. The one other unarguable and indisputable fact is that Singaravelu one other son of Murugesa and Sampoornammal, died on 17.02.1974 leaving behind his widow Vedanayaki (D6), his children Prabavathy (D7) and Sukumaran (D8) and also his mother Sampoornammal. As such, she was once again entitled to 1/4th share in the 1/6th share of Singaravelu. The trial Court was keen as mustard in analysing all these details and allotted the shares to the parties concerned over which they could not find fault with. Accordingly, I am of the considered view that absolutely there is no reason to interfere with the findings of the trial Court.
26. The contention on the side of the plaintiff that Sampoornammal virtually by her non assertion of her right over her shares lost her right over them in my considered opinion is neither here nor there. In support of his contention, he would develop his argument by pointing out that while Sampoornammal filed the suit O.S.No.5 of 1968, she had not chosen to lay claim over these suit properties other than S.No.58.
27. In my considered opinion, such an argument fails to carry conviction with this Court for the simple reason that the suit filed by Sampoornammal was purely for the purpose of getting her extent of 1.61-1/2 acres in S.No.58 carved out from the rest of the land in that survey number by arraying only the other co-owners of that property, i.e. the L.Rs. of deceased, namely Manickammal and Tirupurammal. As such, the plaintiff cannot try to make a mountain out of a mole hill, throwing to winds the scope of the earlier suit filed by Sampoornammal. The contention of the plaintiff that Sampoornammal at no point of time asserted her right over the other suit properties, fails to hold water for the reason that the mother's soft attitude towards her sons cannot be capitalised by them to her detriment and they cannot pit it as against her interest in the suit properties. What is vested cannot be said to have been divested unless it could clinchingly be proved that she relinquished her right over the joint family properties.
28. I hark back to the decision of the Andhra Pradhesh High Court reported in AIR 1964 ANDHRA PRADESH 380 (Vol.51, C.93); an excerpt from it would run thus:
"12. It is manifest that Sec.3 proprio vigore creates the right in the widow and it is not an assertion or demand of it that would clothe her with this right. The demand is only for working out the rights conferred by the statute. The non-assertion or failure to make a demand of such rights would not in any way impair the rights vested in the widow under the repealed enactment. The section does not require an assertion or a demand, before the right vests in her...."
Absolutely there is no shred or shard, miniscule or molecular extent of evidence in that regard. The trial Court considering the oral and documentary evidence rejected such a plea of the plaintiff and recognised the right of Sampoornammal in the joint family properties, warranting no interference in this appeal.
29. As such I could see no substance in the appeal filed by the plaintiff. Accordingly the said appeal A.S.No.420 of 2007 is liable to be dismissed and accordingly dismissed.
30. The learned Senior Counsel for D1 in respect of the appeal of her client in A.S.No.249 of 2007, would contend that in fact S.No.58 is comprised of 3.43 acres and not merely 3.23 acres of land.
31. My mind is redolent and reminiscent of the following maxims:
(1) Affirmantis est probare : The person who affirms must prove.
(2) Affirmanti, non neganti, incumbit probatio: The proof is incumbent on the one who affirms, not on the one who denies.
32. Trite the proposition of law is, that in a partition suit the plaintiff is the defendant and vice versa. Here the plaintiff filed the suit on his own pleadings keeping in mind the evidence to be adduced on his side. The defendant cannot dictate terms in a partition suit to the plaintiff as to what the plaintiff should do, because the law is so clear that it is open for the defendant to make claims by including new items and seeking for partition of all the items. Here, D1 has not even raised his little finger in specifying the said extent of 28 cents in S.No.58 as an item to be included in the suit by specifying it as a schedule in his written statement and he had not paid any Court fee as some other defendants did in this case. In such a case, it would not lie in the mouth of D1 to find fault with the scope of the plaintiff's suit. While narrating the facts supra, I have adverted to the fact that in the donation deed - Ex.A11 executed by Gnanambal, she described the property bearing S.No.58 as one measuring 3 acre 23 cents.
33. Obvious and axiomatic as it is that during the year 1880 the extent in S.No.58 was only 3.23 acres and D1 could not substantiate as to how holus bolus the said extent got enlarged not marginally but to a mammoth extent of 20 cents more. I am fully aware of the fact that every time when there is measurement of a large extent of land there would be some slight difference but that difference would not go to the extent constituting 20 cents. Simply because in the decree in O.S.No.37 of 1925 such an extent of 3.43 acres is specified in S.No.58, it cannot be taken for gospel truth that in fact in S.No.58 there existed such an extent.
34. The learned counsel for the plaintiff would trenchantly point out that without any rhyme or reason, some how or other in the decree in O.S.No.431 of 1955, 20 cents in S.No.58 got enlarged into one of 28 cents. As such this sort of enlargement of the extent from time to time cannot be countenanced and the plaintiff was not obliged to note all those defects and specify the same in his plaint. To the risk of repetition and pleonasm, but without being tautologous, as pointed out supra, it is for D1 who asserts a larger extent to prove it. But he has not chosen to establish or demonstrate it, however he has simply filed this appeal finding fault with the plaintiff as well as the trial Court, which in my considered opinion is totally untenable.
35. Over and above that, the contention on the side of D1 was to the effect that Sampoornammal purchased the said extent of 1.61 acres in the auction sale from the Co-operative Bank from out of his contribution. It is quite obvious that D1 was bound to prove his plea, but absolutely there is no pint or jot, molecular or scintilla of evidence to demonstrate and establish such plea also. Wherefore, the trial Court in the absence of any positive evidence adduced on the side of D1, that it was he who funded Samboornammal to purchase the property in the auction sale, appropriately and correctly negatived the plea of D1, warranting no interference in the appeal.
36. On balance, I am of the considered view that no interference with the appeal in A.S.No.249 of 2007 is required with regard to the finding given by the trial Court.
37. A fortiori the aliquot shares allotted to the parties by the trial Court, require no interference. In the result, both the appeals are liable to be dismissed and accordingly dismissed with the following observation:
Inasmuch as this is a partition suit and the learned Senior Counsel for D1 persistent plea echoes her clients' that there exists an extent of 28 cents in S.No.58, over and above (1.61-1/2 acres + 1/61-1/2 acres) 3.23 acres, it is for D1 to trace out that excess 28 cents and locate it. If that be so, even in the final decree proceedings it is open for D1 to get it added, in respect of which the plaintiff's contention was that the plaintiff would have no claim over such excess. Recording the same, both the appeals are dismissed. However, there shall be no order as to costs.
gms To The II Additional Judge, City Civil Court, Chennai