Madras High Court
V.R. Subramaniyam vs V.R. Sengodan on 3 April, 2013
Author: T. Mathivanan
Bench: T. Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 3.4.2013 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.S.No.679 of 2007 V.R. Subramaniyam ... Appellant Versus 1. V.R. Sengodan 2. R. Chinnannan 3. R. Natarajan 4. Perumayye Ammal 5. R. Alamelu 6. C. Kamalam 7. S. Nirmala ..Respondents Prayer: Appeal filed under Section 96 C.P.C. against the judgment and decree, dated 13.4.2007 and made in O.S.No.26 of 2004 on the file of the learned Additional District Judge-cum-Fast Track Court NO.II, Salem. For Appellant : Mr.B.Ramamurthy For Respondents : Ms.Asha JUDGMENT
The judgment and decree, dated 13.4.2007 and made in O.S.No.26 of 2004 on the file of the learned Additional District Judge (FTC No.2), Salem are under challenge in this appeal.
2. The plaintiff is the appellant hereunder. For the sake of evidence and for easy reference the ranking of the parties to the suit may hereinafter be referred as it is in the suit.
3. The plaintiff in the suit in O.S.No.26 of 2004, as against the defendants 1 to 7 has sought the following reliefs:-
a. To pass a preliminary decree in their favour for partition and separate possession of 7/30 share in the suit properties.
b. To appoint an Advocate Commissioner to effect a division and allot 7/30 share to them.
and c. To pass a decree against the defendants for mesne profits derived from the suit properties.
4. The facts which are germane for the disposal of this appeal are as under:-
(i) Rangaiya Gounder had died on 25.12.1990 intestate leaving behind the plaintiff and the defendants 1 to 5 as his legal heirs to succeed his estate. During his life time, he had improved his agricultural lands. The plaintiff and the defendants have divided themselves only in respect of movable properties left by the deceased Rangaiya Gounder. But the joint family immovable properties were not able to be divided on account of the attitude of the defendants.
(ii) The plaintiff and the defendants 1 to 3 were enjoying the joint family agricultural lands during the life time of their father in common without any division.
(iii)The fifth defendant is a married sister of the plaintiff and the defendants 1 to 3. Her marriage was taken place about ten years before and therefore, she is not entitled to any share in the joint family properties.
(IV) The plaintiff and the defendants 1 to 3 and the deceased father Rangaiya Gounder were all equally entitled to 1/5th share in the joint family properties described in the schedule. Since Rangaiya Gounder had died intestate his lawful 1/5th share devolves upon the plaintiff and the defendants and therefore, each of them are entitled to 1/25th share as his legal heirs in the properties left by the deceased Rangaiya Gounder and at present the plaintiff and the defendants 1 to 3 are each entitled to get 7/30 share and the defendants 4 and 5 are each entitled to 1/30 share in all the properties.
(V) The second defendant had obtained a settlement deed from their father Rangaiya Gounder by playing fraud taking advantage of his old age depriving the lawful share of the plaintiff and the defendants 1 and 3 to 5. The settlement deed is void ab initio and it will not bind upon the plaintiff. Their father Rangaiya Gounder has also no right to execute any settlement deed in respect of the joint family properties.
(VI) The second defendant, who was living with the parents for some time, had clandestinely purchased two items of the suit properties in the name of his wife out of the joint family funds as he was maintaining the joint family properties. Hence, the properties standing in the name of the second defendant's wife, who is the sixth defendant herein, are absolutely joint family properties as the second defendant or his wife (D6) were having no independent source of income.
(VII) Originally, the second defendant had agreed to divide all the properties into five equal shares and now is refusing to have the properties partitioned. The plaintiff and the defendants 1 to 3 are still continued to be in joint possession of all the suit properties.
5. In the year 1995, the plaintiff had convened a panchayat wherein the defendants had agreed for an amicable settlement. But now they are abruptly refusing to come forward for such an amicable settlement in respect of the joint family properties and therefore, the plaintiff is constrained to file the present suit for partition and separate possession.
6.The defendants 1, 3 and 4 have adopted the written statement filed by the second defendant. They have denied the allegations made in the plaint and contended that they were not enjoying the joint family agricultural lands in common during the life time of Rangaiya Gounder. They have also contended that virtually there was an oral partition during the year 1987 and as per oral partition, the plaintiff and the first defendant were allotted the properties comprised in Re.Survey Nos.140/1A, 1C, 1G, 1E, 1F, 1L, 1R and 1M (old S.No.140/1) measuring 6.78 acres and it has been specified as item No.1 under the description of the properties in the plaint.
7. The plaintiff and the first defendant have been paying kist and other taxes due to the Government for their respective shares as per oral partition. Their father had executed a registered settlement deed, dated 17.5.1988 in favour of the second defendant in respect of the properties allotted as per oral partition. Even prior to the execution of the settlement deed, dated 17.5.1988, the second defendant had been in possession and enjoyment of the properties, viz., the total extent of 2.671/2 acres comprised in Re.Survey No.50/1A, 50/1C, 50/1D, 50/1E and 50/1F and an extent of 6.80 acres (old Survey No.12w7/1) comprised in Re.Survey Nos.127/1B and 127/1A which have been more fully described in items 4, 5 and 6 of the plaint schedule. Patta has also been issued in favour of the second defendant and he has also been paying kist and other taxes due to the government and his name has also been entered in the relevant records.
8. The second defendant's wife Kamalam, who is the 6th defendant herein had also purchased the properties comprised in Survey No. 127/1A to the extent of 1.19 acres and in Re-Survey No.128/B to the extent of 1.90 acres and 128/c to the extent of 0.06 acres with a well portion of 0.02 = acres and in Re-S.No.128/A to the extent of 0.76.0hectares and 128/1 to the extent of 0.01.0n hectares with half share in the well therein under two registered sale deeds dated 29.11.1990 and 03.06.1994 which are specifically mentioned in Item 6 and 7 of the plaint schedule and as such the 6th defendant being the wife of the second defendant is the absolute owner of the same as the said properties are herself acquired properties.
9. As per the oral partition, the 3rd defendant was also allotted with the properties in Old Survey No.30,31/2,31/3, 32/3 which are also morefully described in Item No.2 and 3 of the plaint schedule. There is also a tiled house in Re-S.No.30.3 and the 3rd defendant has also been paying house tax and electricity charges and he has been in exclusive possession and enjoyment of the same.
10. The properties specified in Item Nos.8 and 9 of the plaint are the self-acquired properties of the 1st defendant and his wife Nirmala, who is the 7th defendant herein . Even before the oral partition in the joint family the plaintiffs father Rangaiya Gounder had purchased a workshop in S.No.52/1 in Vellalappatty Village out of the joint family funds in the name of the plaintiff to the extent of 625 sqft. with a terraced house therein. The plaintiff has been in possession and enjoyment of the said workshop as well as the terraced house.
11. The 4th defendant being the mother of the plaintiffs/defendants 1 to 3 and 5 has not been allotted any property and therefore, she has been living with her sons and there is no question of allotment of fund to the 5th defendant. She was given in marriage on 03.06.1978 and therefore, she has been living separately with her family and even during the life time of her father she was given enough money and jewels and therefore she is not entitled to any share.
12. The plaintiff has already filed a suit in O.S.No.781 of 1995, for partition against these defendants on the file of the learned Principal Subordinate Judge, Salem and the second defendant in the year 1998, taking a specific plea that the learned Principal Subordinate Court, had no territorial jurisdiction to try the suit and thereafter the suit was dismissed on the ground of jurisdiction.
13. The second defendant had sold 3.14acres of land in S.No.127/1B (New Sub-division No.127 /1B1) in Vellalappatty Village under a Registered Sale Deed dated 20.11.1998 in favour of the Tamil Nadu Government for Backward Class Welfare Department. After purchase the Government of Tamilnadu has also constructed houses for the Backward class welfare Department in a portion of the suit property and therefore, the plaintiff has no right over the property belonging to the Government.
14. Further the suit is also not maintainable for misjoinder of the necessary parties, since there was a dispute regarding the wells and pipelines in S.No.140/1F and S.No.140/1L. A Panchayat was convened and in subsequent there of a Panchayat Muchalika was also executed on 29.01.2002.
15. The 5th defendant in her statement has contended that there was an oral partition in the year 1987 and in the said oral partition all the parties had agreed to give a sum of the 1,50,000/- to the 5th defendant as she was not then entitled to any share either in ancestral or in self acquired properties of Rangaiya Gounder.
16. At the time of oral partition the properties described in Item No.1 and the properties described in four items in Item No.2 and an extent of 0.53cents comprised in S.No.32/3 alone were belonged to Rangaiya Gounder as his ancestral property. The remaining properties in Item No.2 of the properties specified in Item Nos.3 to 5 of the plaint schedule are belonged to Rangaiya Gounder as self acquired properties. The ancestral properties of Rangaiya Gounder were not sufficient to maintain the family which consisted of his wife, 4 sons and one daughter. Besides this he was having the responsibility of performing marriages of his sisters. For maintaining his family Rangaiya Gounder was running a sugar-cane crushing plant through this business he was making money. Out of his self earning he had purchased properties consisting of Item No.2 part and Item Nos.3 to 5 of the schedule.
17. In purchasing these properties no money from any ancestral nucleus was used. Though the brothers viz., the plaintiff and the defendants 1 to 3 had agreed to an oral partition as suggested by Panchyadars they subsequently had turned back. It was the plaintiff above who had re-sailed from the oral partition and the other brothers did not resail and that is why each of the sons of Rangaiya Gounder are in separate possession of lands.
18. In respect of his self acquired properties, Rangaiya Gounder had executed a settlement deed on 17.05.1995 in favour of the second defendant. This settlement deed has been attested by the 3rd defendant also, hence there is no question of fraud in the execution of the settlement deed. Since the settlement deed is related only to the self acquired properties of the RangaiyaGounder and not acquired with the hold of any joint family members it is perfectly valid. A portion of the property was acquired by the Government of Tamilnadu on 20.11.1978 under a sale deed which was not even objected to by the plaintiff. But this property has also been shown in Item No.5 of the plaint schedule.
19. Item Nos.6 and 7 were purchased by the second defendant as well as by his wife who is the 6th defendant through their self earning. The 1st defendant who was having a Lathe workshop in Karumbalai area of Karuppur Village even from the year 1974 earned money and before that from the year 1968 he was working as a mechanic in a workshop at Salem. He had purchased Item No.8 of the plaint schedule under a registered sale deed dated 03.02.1983 and another portion in the name of his wife Nirmala, who is the 7th defendant herein. Hence the plaintiffs cannot claim any right of partition over the items 6 to 8 of the plaint schedule.
20. Any rights the plaintiffs might have had in respect of the properties which are in possession of the defendant are lost by adverse possession in any event. The plaintiff is also not in joint family of the suit properties as alleged.
21. Based on the pleadings of the defendants 1 to 5, the defendants 6 and 7 have been impleaded in the suit in pursuant to the order passed in I.A.No.227 of 2003 dated 10.10.2003 on the file of the learned Additional District Judge(FTC-II) Salem.
22. Based on the material propositions of the facts as well as the pleadings of the parties to the suit, the trial court has formulated the following issues;
1.Whether the plaintiff is in joint possession of the suit property ?
2.Whether the plaintiff is entitled to get partition of 7/30 shares in the suit properties ?
3.Whether the description of properties is correctly mentioned ?
4.Whether the suit is valued properly for the purpose of court fees ?
5.Whether the suit is bad for non-joinder ?
6.To what releif ?
23. In order to facilitate the parties to the suit to project their respective cases they were directed to face trial. Accordingly, the plaintiff had examined himself as PW 1. During the course of his examination Exs.A1 to A 18 were marked. On the other hand Exs.D1 to D3 had examined themselves as DW 1 to 3 respectively. Besides this three witnesses were examined as DW 4 to 6. During the course of their examination Exs.B1 to B26 were marked.
24. On appreciation of the evidences both oral and documentary and on hearing the submissions made on behalf both sides the learned trial judge had proceeded to dismiss the suit on 13.04.2007 with costs, finding all the issues against the plaintiffs. Being aggrieved by the judgment and decree dated 13.04.2007, the plaintiff now stands before this court with this appeal.
25. On perusal of the grounds of appeal in harmony with the judgment of the trial court and other materials available on record the following crucial points arise for the consideration of this court.
1.Whether the remaining properties in Item No.2 bearing Item No.1 to 4, and the properties specified in Item Nos.3 to 5 were purchased by the deceased Rangaiya Gounder from the joint family nucleus ?
2.Was there no oral partition effected in the family till the death of Rangaiya Gounder ?
3.Whether the deceased Rangaiya Gounder had no right to settle the property under Ex.B9 in favour of the second defendant more than the share he had got under Ex.B2 Panchayat Muchalika ?
4.Is it correct to say as to whether the properties specified in Item Nos.6 to 9 were also purchased from the income derived from the joint family properties or purchased by D2 and D6 as well as by D1 and D7 from their personal earnings ?
Point No.1 and 226. No other oral evidence is adduced by the plaintiff excepting his examination as PW 1. Having been brought the suit for partition in respect of the properties specified in the plaint schedule, it is the prime obligation on the part of the plaintiff to substantiate his case through the better evidence both oral and documentary and he shall not take the advantage of the lacuna or the weakness which is purported to be in existence in the defendant's case.
27. It is the specific case of the plaintiff that the entire properties specified in the suit first item, and the properties specified in sub-items 1 to 3 and 4, Item No.2 are the ancestral properties of their father Rangaiya Gounder. The properties specified in sub-item No.5 of Item No.2 comprised in S.No.32/3, was purchased by their father from the joint family nucleus. Similarly, sub-items 6 to 9 of Item No.2 were purchased by their father from the income derived from their ancestral property. It also the specific case of the plaintiff that sub-item No.10 of Item No.2 comprised in s.No.30 is their father's ancestral property. The plaintiff has also claimed that the property specified under Item No.3 and 5 were purchased by their father from the income derived from their ancestral property. Besides this he has also claimed that the property specified in Item Nos.6 and 7 were purchased in the name of the 6th defendant who is the wife of the second defendant from the income of the ancestral joint family property. Apart from this he has also claimed that Item No.8 was purchased from the income derived from the ancestral joint family property in the name of the first defendant and in Item.No.8 139sqft., as well as 4180sqft., comprised in S.No.14/4 was also purchased in the name of the 7th defendant who is the wife of the first defendant from the joint family nucleus. He has stated in his evidence that accepting the agricultural income their father Rangaiya Gounder had no other income.
28. It may be more relevant to note here that originally the suit was filed as against the defendants 1 to 5. With the defendants have claimed that the properties specified under Item Nos.6 and 7 were purchased from the personal income, of the second defendant and his wife and the properties described in Item No.8 and 9 were purchased by the first defendant and his wife Nirmala from their personal income, the defendants 6 and 7 who are the wifes of the defendants 1 and 2 have subsequently been impleaded by the plaintiffs in the suit.
29. Contrary to the claim of the plaintiffs, the defendant have specifically claimed that Item No.1 of the sub-item No.1 to 4 in Item No.2 and the property measuring 0.53 cents comprised in Survey No.32/3 alone are the ancestral property of their father Rangaiya Gounder. The remaining properties in Item No.2 and the properties specified in Item No.3 to 5 are the self acquired properties of Rangaiya Gounder. Besides this the defendant's father also claimed that the property specified in Item No.6 and 7 were purchased by the second defendant and his wife kamalam who is the 6th defendant, out of their joint earnings and as such the properties in Item No.6 and 7 are self acquired properties of D2 and D6 respectively and besides this they have also claimed that Item No.8 and 9 have been purchased by the defendants 1 and 7 out of their personal earnings and as such these properties are their self acquired properties and therefore, excepting the properties specified in sub-item Nos.1 to 4 in Item No.2 the remaining items and the items 3 to 5 are the self acquired properties of their father Rangaiya Gounder and similarly, the properties specified under item 6 and 7 are the self acquired properties of defendant 2 and his wife 6th defendant and item 8 and 9 are the self acquired properties of the defendant and his wife 7th defendant.
30. Having been claimed that the properties specified in Item No.1 and sub-item 1 to 4 in Item No.2 and 0.53 cents in S.No.32/3 are the ancestral properties of their father, and that the remaining properties were purchased from the joint family nucleus, the plaintiff has to prove by dispelling the shadow of doubt.
31. This court has carefully perused the evidence adduced by PW 1 and the other evidences adduced by DW 1 to 5 as well as the documentary evidences ranging from Exs.A1 to A18 and B1 to B26. Admittedly their father Rangaiya Gounder had passed away intestate on 25.12.1990. Both the plaintiff and the defendants have admitted that the properties specified in Ite,No.1 and the sub-item 1 to 4 in Item No.2 and the ground cites measuring 0.53 cents comprised in S.No.32/3 are the ancestral properties of their father Rangaiya Gounder. This can be understood from Ex A1 and A2 certified copies of registered partition deed dated 25.06.1958 and 07.04.1969. As admitted by PW 1 in his evidence Ex.A1 dated 25.06.1951 was executed between his father Rangaiya Gounder and his senior paternal grand fathers and sons of another senior paternal grandfather in respect of properties situated at Mylampalayam Village. He has also admitted that Ex.A2 dated 07.04.1969 was executed between his father and sons of his senior paternal grandfather in respect of the properties situated at Vellalappatty Village.
32. DW 1 who is the first defendant is the elder son of Rangaiya Gounder and 4th defendant. In his proof affidavit he has stated that their parents ''viz''., Rangaiya Gounder and the 4th defendant Permaiammal had begotten 4 sons ''viz., the plaintiff, defendants 1 to 3 and 5 and apart from this Rangaiya Gounder was having 5 sisters. Of them he was under the responsibility to perform marriage for his three sisters. Besides the burden of maintaining his family, it is also revealed from the proof affidavit of DW 1 that their father Rangaiya Gounder had been conducting a strenuous life as the income derived from his ancestral properties were not sufficient to maintain the family and therefore, he had to run a sugar cane crushing plant through which he was making money.
33. He has also stated that out of his earned money from the running of sugar cane crushing plant, he had purchased the properties specified in sub-items 3 to 5 in Item No.2. According to DW 1 these properties shall not be described as the properties purchased from joint family nucleus. His evidence in chief has been with stood the test of cross-examination.
34. DW 2 and 3 are none other than the defendants 2 and 3 who are the brothers of the plaintiffs and the first defendant. They have supported the case of their elder brother DW 1. Both of them have categorically stated that their father Rangaiya Gounder had not spent any amount derived from joint family property for the purchase of the properties specified under Item No.2 excepting Itme Nos.1 to 4. The 5th defendant who is the only sister of the plaintiff and the defendants 1 to 3 does not claim any share from the plaint schedule properties excepting a sum of Rs.1,50,000/- from the plaintiff and the defendants 1 to 3. Based on Ex.B2 she has also joined the case of PW 1 to 3 and stated that the properties described in the remaining sub-items of Item No.2 excepting sub-items 1 to 4 and the other properties described in Item No.3 to 5 were purchased by their father Rangaiya Gounder from his hard earned money derived from sugar cane crushing plant.
35. Exs.A3 to A6 are the certified copies of the registered sale deeds which stand in the name of Rangaiya Gounder. This has been accepted by the defendants also. But the question is as to whether the properties purchased under Ex.A3 to A6 in the name of Rangaiya Gounder were from the joint family income? or from the self earned money of Rangaiya Gounder ? Admittedly excepting the oral evidence of PW 1 no other evidence is available to substantiate his case.
36. In his evidence PW 1 would state that out of the total extent of ancestral property derived by their father, an extent of 2.50 acres is nanja land and the remaining land is punja land having irrigation facility. Particularly, the land measuring 1.25 acres is having irrigation facility. PW 1 is stated that his grandfather was having no income and therefore, the properties were purchased from the joint family agricultural income.
37. PW 1 has further stated that one Muthu Gounder who is the son of his senior paternal grandfather had sold his share in favour of Rangaiya Gounder in the year 1956. Ex.A4 is the sale deed dated 16.04.56 registered in favour of Rangaiya Gounder. With regard to Ex.A4, PW 1 has admitted in his cross-examination that Ex.A4 did not have any reference to show that the property purchased there under was not belonged to Rangaiya Gounder's ancestral property. It is stated that 1/8th share of the vendor Muthu Gounder has been transferred in favour of Rangaiya Gounder. It is pertinent to note here that Ex.A4 appears to have been executed two years prior to the execution of Ex.A1 partition deed. In respect of properties purchased under Ex.A4 no legal proceedings were initiated by the senior paternal uncle of PW 1 or his sons.
38. PW 1 has specifically admitted that Ex.A1 partition deed was executed including the 1/8th share of Muthu Gounder. PW 1 has specifically stated in his cross-examination that his father was not running any sugar cane crushing plant. It may be relevant to note here that Ex.B2 being the Panchayat Muchulika has not been abruptly denied by PW 1. Ex.B2 is said to be the Panchayat Muchulika dated back to 16.06.1985 wherein the plaintiff V.R.Subramanian and the defendants 1 to 3 and their father Rangaiya Gounder are said to have signed. Though PW 1 has simply denied his signature in Ex.B2, he has admitted the signatures of his father and the second defendant Chinnammal. Their signatures have been marked as Ex.P2 series. But DW 1 ,2,3 along with DW 5 have categorically stated about the genuineness of Ex.B2. The circumstance under which Ex.B2 was executed would be discussed in detail in the later paragraphs. Insofar as the denial of PW 1 with regard to the running of sugar cane crushing plant by their father, the last paragraph in page of Ex.B2 can be taken in to consideration. In the last paragraph of page 5 of Ex.B2 it is stated that the sugar cane crushing plant was belonged to their parents. It has also been stated that who ever wants to use the said sugar cane crushing plant they have to necessarily pay the rent charges to the parents. From this observation as admitted by the defendants particularly DW 1 to 4 (DW 4 Subramanian is one of the attesting witnesses in the above said Panchayat Muchalika) this court could find that Rangaiya Gounder was running a sugar cane crushing plant and was earning money for the purchase of property as well as for the maintenance of the family.
39. PW 1 has also admitted that his grandfather and his brothers had partitioned their family properties orally and in pursuant to the said oral partition they had executed a legal partition deed in the year 1958. He has also admitted that the property specified in Ex.A4 has not been included in Ex.A1 partition deed.
40. In his cross-examination at page 11, he has admitted that the properties settled under Ex.B9 in favour of second defendant by their father were purchased separately under the registered sale deeds in the name of their father. However, he has claimed that though the properties were purchased from the joint family income but there is no evidence either oral or documentary to show that those properties were purchased from the joint family income.
41. At page 12 of his cross-examination in second paragraph he has stated that in the year 1969, his father had got separate properties through their family partition and in that property the sugar cane crushing plant was installed. But the installation of sugar cane crushing plant was not mentioned in the partition deed (Ex.A2 dated 07.04.1969). He has also stated that the said plaint was in existence in the year 1977 and a case was also registered in Crime No.3 of 1977 as against one Perumal alleging that he had set fire on the said sugar cane crushing plant.
42. From the testimonies of PW 1, 2 3, and 4 and from the documents under Exs.A3 to A6 and Exs.B1 to B12 it is found that the remaining properties in item No.2 except Item No.1 to 4 of the properties described in Item No.3 to 5 are the self acquired properties of Rangaiya Gounder. This court also find that the properties described in Item No.1, sub-items 1 to 4 in Item No.2 and the other property comprised in S.No.32/3 measuring 0.53 cents alone are the ancestral properties of Rangaiya Gounder.
Point No.2 With regard to the alleged oral partition.
43. It is the definite case of the defendants that in the year 1985 it was proposed among the brothers i.e., among the plaintiff and the defendants 1 to 3 that the family properties should be partitioned and accordingly a Panchayat Muchalika was executed on 15.06.1985. When the alleged Panchayat Muchalika dated 15.06.1985 was confronted with PW 1 during the course of his cross-examination he had simply denied the execution of that documents and even the signatures of his father as well as second elder brother viz., the second defendant were also denied. Therefore, the admitted signatures of his father and the second defendant have been marked as Ex.B2 series. In fact the alleged Panchayat Muchalika dated 15.06.1985 has not been marked. The defendants 1 to 3 who ever examined as Dws 1 to 3 have categorically stated in their respective evidences that in the year 1985 all the brothers had consented for the division their family properties and in order and to ratify this an agreement was entered in to.
44. This agreement was followed by an oral partition in the year 1987 in the presence of panchayatdars and the properties were also partitioned and their respective shares were entrusted with the share holders. They have also stated that all the brothers have been in possession and enjoyment of their respective shares. Accordingly the plaintiff has also been in possession and enjoyment of his share, In order to add more dimension to their case they have marked Ex.B3 agreement, with regard to laying of pipelines between the first defendant and the plaintiff. The properties of the plaintiff and the defendants are located in two places namely; Mylampalayam and Vellalapatti. DW 1 says that the properties in Vellalapatti were allotted to him as well as to the plaintiff whereas the properties located at Maylampalayam Village were allotted to 3rd defendant and he has been in possession and enjoyment of his share and DW 1 has also stated that from the allotted property the 3rd defendant had alienated some portion to 3rd parties. It is also revealed from the evidence that while allotting the properties no separate properties were allotted to Rangaiya Gounder and it was agreed between the brothers that he can cultivate certain portions of the lands allotted to his brother till his life-time. It is also revealed from their evidence that they had decided that a partition deed could be executed at the appropriate time, but since the plaintiff had not turned up for the execution of the written partition deed, their father Rangaiya Gounder had developed anger and proceeded to excute a settlement deed under Ex.B9 in favour of the second defendant in respect of his self acquired properties in 17.05.1998. But the plaintiff has vehemently denied the alleged oral partition as well as the allotment of separate shares. In his evidence in chief he has stated that till the life time of their father he had been maintaining the suit properties and after his death the second defendant has been maintaining the family properties as he has been working as Village Administrative Officer. But he has admitted that all the brothers are residing separately and that the second defendant has been cultivating 15 acres of land, while he has been cultivating 3 acres of land.
45. Under this circumstance this court finds that it may be better to refer paragraph 5 of the written statement filed by the 5th defendant wherein she has ascertained that there was an attempt for partition in the year 1987 and that there was an oral partition effected between the parties and in that partition it was decided by the parities that she should be given a sum of Rs.1,50,000/- by the main members of the family as she was not then entitled to any share in the properties either ancestral or self acquired of Rangaiya Gounder. She (D5) has also stated in her written statement that though her brothers had agreed for a oral partition as suggested by the Panchayatdars in the year 1987, they subsequently, had turned back. Besides this she has also stated that the properties as per the oral partition was taken by the sons of Rangaiya Gounder. It is also her case that the plaintiff alone had resiled from the oral partition and that the other brothers did not resile and therefore, each of the sons of Rangaiya Gounder are in separate possession of that land. But this has also been strongly denied by PW 1 in his cross-examination. He has stated that no oral partition was effected in the year 1987 and that it was not at all agreed by the brother to pay 1,50,000/- to the 5th defendant. However, his evidence is left uncorroborated or unsupported.
46. PW 1 in his cross-examination has admitted that he has been in possession of 3.15acres in Survey No.140/1 and approximately 50 or 60 cents in Survey No.50/1. He has also admitted that 60cents in Sub-Item No.3 of Item No.1 has been in possession of the first defendant and he has been in possession of the remaining portion i.e., in 1acre 15cents. He has further admitted that two tiled houses are located in his portion and he has been residing in the respective half portion of those two houses and the other half in the said two houses are in the possession of the first defendant. He has shown only one house in the plaint and the other house has not been shown. This fact has also been admitted by him in his cross-examination.
47. With regard to execution of Panchayat Muchilika dated 15.06.1985, the evidence of DW 4 assumes more importance. He says that he knew the family of Rangaiya Gounder and that he was having close contact with his family. He says that Rangaiya Gounder after borrowing loan had installed a sugarcane crushing plant and thereby crushed sugarcane on charges. He has also stated that in the year 1985, Rangaiya Gounder had decided to effect division in respect of their family properties and therefore, he and his brother one Gurunathan along with one Palaniappan were called by Rangaiya Gounder to the Panchayatdars to effect division. Accordingly, the document was executed and it was also decided that a separate document would be executed later. He has also stated that he had signed in the Panchayat Muchilika dated 15.06.1985, as the witness along with Gurunathan and Palaniappan.
48. From the evidence of DW 4 Subramanian this court finds that the claim of oral division set up by the defendants has been ratified by DW 1. It is also pertinent to note here that at the time of his examination DW 4 Subramanian was aged about 80 years. His evidence in chief has also not been shaken in the cross examination. It may be more significant to note here that he has stated that the 4th signature found place in the Panchayat Muchilika is belonged to the plaintiff. However, the plaintiff in his evidence has not specifically denied this fact. The evidence of DW 4 sheds more light on the case of the defendant.
49. Admittedly, no separate partition deed has been executed in pursuant to the alleged oral partition, DW 1 in his cross examination has stated that as per the Panchayat Muchilika wherein Ex.B2 series are found place, second defendant as well as the plaintiff were each allotted with 4 acres of lands whereas the second defendant was allotted with 4 acres and 80 cents. He has also stated that as per the Panchayat Muchilika their father Rangaiya Gounder was allotted with 2 acres and 1cents along with sugarcane crushing plant. But subsequently, the second defendant had got 9 acres of land from their father through the settlement deed under Ex.B9. He would further state that since the brothers had not turned up to execute a partition deed for the second time they had effected division orally in respect of their properties. But no separate deed was executed in respect of second partition which was effected in the year 1987. However, the brothers viz., D1 to D3 and sister D5 have admitted the evidence given by DW 1.
50. As claimed by the 5th defendant no amount much less Rs.1,50,000/- was given to her. It has been admitted by DW 1 that both the second defendant and his wife 6th defendant are having 16 acres of land. The plaintiff has been cultivating 3.15cents of land while he (DW 1) has been cultivating 3 acres of land. He has also stated that the 3rd defendant has also been cultivating 4.8 acres of land. After the death of their father Rangaiya Gounder his share measuring 2 = acres which was allotted under Panchayat Muchilika was divisioned proportionately among the brothers.
51. The evidences available on the part of the defendants are having overwhelming effect rather than the evidence adduced on behalf of the plaintiff. From the evidence available on record this court finds that the plaintiff has miserably failed to establish his case.
Point No.3
52. Ex.B9 is the copy of settlement deed dated 17.05.1988. It is alleged that Rangaiya Gounder had executed this document in favour of the second defendant settling his self acquired properties measuring 8 acres 74 cents. In this connection DW 1 to DW 3 have categorically stated that since, the plaintiff had not turned up to execute a separate partition deed in pursuant to Panchayat Muchilika dated 15.06.1985 his father developed anger and settled his self acquired properties in favour of the second defendant. In this connection the defendants have stated in their testimonies that the properties settled under Ex.B9 was originally allotted to second defendant and no objection was raised among the brothers accepting the plaint. The second defendant in his evidence has also stated that thought Ex.B9 settlement deed was executed as early as on 17.05.1988 till the date of filing of the suit, no objection was raised by the plaintiff.
53. On the other hand the defendants 1, 3 and 4 have also not raised any objection as they had accepted the plaint. In fact the 3rd defendant has signed in Ex.B9 as one of the witnesses. The settlement deed under Ex.B9 is a registered document and in pursuance thereof, the second defendants name was entered into in the related revenue records and he has also produced the documentary evidences ranging from Ex.B11 to 14 to show that he had been paying necessary taxes to the Government. It is also revealed from the evidences of the defendants that both the second defendant and his wife, the 6th defendant had sold a portion of the land to the Government for putting up houses for the most backward class under two sale deeds viz.Ex.B15 dated 20.11.1998 and Ex.B16 dated 18.11.1998. This has also been substantiated by DW 1, DW 3, DW 4 and 5 respectively. DW 5 and DW 6 are the Revenue Village Administrative Officers and they have spoken to about the sale of land belonging to the second defendant as well as the 6th defendant of the Tamil Nadu Government under Ex.B15 and B16.
54. Having made a meticulous analysis on the evidence available on record this court finds that substantive evidence is available on record to show that the properties settled under Ex.B9 were purchased by Rangaiya Gounder, through his own fund. In respect of the settlement of those properties no objection was raised either by the plaintiff or by the defendants 1, 3 and 4 including Ex.D5 till the filling of the suit and therefore all of a sudden this cannot conclude as if their father Rangaiya Gounder had settled more property than what he had got. This contention raised by the learned counsel for the plaintiff is not substantiated and therefore it is rejected.
Point 4
55. Regarding the properties specified in Item No.6 to 9 evidences are available to prove the fact that the second defendants wife 6th defendant had purchased the properties which were been marked under Ex.A7 and A8. These properties have been specified under Item No.6 and 7 in the plaint schedule. It is the specific case of the defendant that the 6th defendant is the absolute owner of the above said properties. It is also the specific case of the defendants that the properties specified in Item No.8 and 9 of the plaint schedulde are the self acquired properties of the first defendant and his wife 7th defendant and that both of them are the exclusive owners of the property set out in Item No.8 & 9.
56. In this connection DW 1 has stated that he had put up a separate lath workshop and out of the money given by his wife after pledging her jewels, he had purchased these items and similarly out of the money earned and from the money derived by pledging jewels his wife had purchased the above said properties. As already discussed excepting the plaintiff the other parties have not resisted the claim of the defendant. It is also obvious to note that under Ex.B15 and 16, the second defendant had sold a portion of the property to the Government and this has also not been objected to by the plaintiff till the filing of the suit.
57. DW 5 and 6 Village Administrative Officer have also supported the the case of the defendant. Under these circumstances this court finds that the finding of the trial court in this connection does not require any interference.
In the result the appeal is dismissed. The judgment and decree of the trial court are confirmed. No order as to costs.
prm 03.04.2013
T. MATHIVANAN, J.
prm
Judgment in
A.S. No.679 of 2007
DATE:3.4.2013