Madras High Court
R.Chinnan vs Theda Selvam on 26 September, 2019
A.S(MD) No.223 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.03.2022
DELIVERED ON : 15.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.223 of 2019
and C.M.P(MD)No.11955 of 2019
1.R.Chinnan
2.R.Kannan ... Appellants/Plaintiffs
Vs.
1.Theda Selvam
2. Samudhram
3. Mayakkal
4. Kavi
5.Palraj
6.Amaravathy
7. Thangamani
8.Mokket @ Mayandi
9.Palpandi
10.Thangam
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A.S(MD) No.223 of 2019
11. Pechiyammal
12. Amaravathy
13. Valarmathi
14. Lakshmi ... Respondents/Defendants
Prayer : This Appeal Suit is filed under Section 96 of the Civil
Procedure Code against the judgment and decree dated 26.09.2019 made
in O.S.No.182 of 2014 on the file of the V Additional District Judge,
Madurai.
For Appellants : Mr.R.Suryanarayanan
For R7 to R10 : Mr.J.Barathan
for Mr.A.K.Manikkam
For R2, 4 to 6, 11 to 14 : Exparte
For R3 : No appearance
J U D G M E N T
This Appeal Suit has been preferred challenging the judgment and decree passed by the learned 5th Additional District Judge, Madurai, dated 26.09.2019 made in O.S.No.182 of 2014. The appellants are the plaintiffs.
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2. The case of the appellants/plaintiffs is that the suit properties were the self acquired properties of their father Rasu Peyandi Thevar by virtue of a sale deed dated 08.06.1951 and through an another oral sale in respect of the suit property in item No.1; the plaintiffs' father had executed a settlement deed in favour of his wife Mayakkal on 02.08.1968; in pursuance of the settlement deed, the said Mayakkal took possession of the item No.1 and was in enjoyment till her life time; after her death, her children namely, Rasu Peyandi, Mokka Chinna Peyandi, Govindhan, Virumandi and Mayandi had acquired title; the settlement executed in favour of Mayakkal was conditional one and she had given with limited interest of enjoyment till her life time and after her death, her sons would become entitled for the same; after death of Mayakkal, her five sons had partitioned item No.1 and got 1/5 undivided share in each. 2.1. Subsequently, the father of the plaintiffs and defendants also died. One of the sons of Mayakkal namely Govindhan also died; the defendants are the children of Chinnapeyandi; the defendants 5 and 6 are the children of Virumandi and the plaintiffs are the children of Rasu Peyandi; all the above had become co-owners and they are in joint 3/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 enjoyment and possession of the suit property till today; since Govindhan died without any issues, the share of each branch maximized to 1/5 to 1/4. Though in the sale deed dated 08.06.1951 the first item was shown as 2 acres 69 cents out of 4 acre 14 cents, the property was in fact measuring 4 acres 14 cents in Survey No.90/1.
2.3. The second item is comprised in Survey No.90/3 and it measures 40 cents and the said property was owned by the father of the plaintiffs as his self acquired property without any interference from anyone; after his demise, the plaintiffs, their sisters and mother inherited the same and they are in possession and enjoyment; since the mother and sister of the plaintiffs executed a settlement on 08.04.2014 in respect of their shares in item No.2, the plaintiffs have become exclusive owners of item No.2 and were enjoying the same; since the defendants were causing interference with the plaintiffs’ enjoyment over the suit properties, misunderstanding arose between them; hence, the plaintiffs have filed the suit for partition of their ¼ share in item No.1 and declared that the plaintiffs are the absolute owners of item No.2 and consequential permanent injunction.
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3. The defendants contested the suit by stating that Mayakkal is the wife of Muthu Peyandi Thevar. The said Mayakkal had five sons namely, Rasu Peyandi Thevar, Mokks Chinna Peyandi, Govindhan @ Kaluva Thevar, Virumandi and Mayandi; Rasu Peyandi had two sons by name Chinnan and Kannan who are the plaintiffs herein; Mokka Chinna Peyandi had two wives by name Rakammal and Ochammal; He had 3 daughters by name, Theda selvam, Samuthiram and Mayandi (D1 to D3) through his first wife Rakkammal and one son and daughter by name Kasi (D4) and Pechiammal through his second wife Ochammal; The said Pechiammal was not added as a party to the suit; Virumandi Thevar had one son and daughter by name Palraj and Amaravathy (D5 and D6). Mayandi Thevar had three sons (D8 to D10) and one daughter by name Thangamani (D7).
3.1 The suit item No.1 was purchased in the name of Rasu Peyandi Thevar by virtue of a registered sale deed dated 08.06.1951; an extent of 72 ½ cents in Survey No.90/1 was purchased in the name of Mayakkal 5/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 W/o Muthu Peyandi Thevar through registered sale deed dated 03.03.1958; the suit item No.1 consists of 2 acres 69 cents in Survey No. 90/1; the plaintiffs wantonly suppressed the sale deed dated 02.08.1968 executed in favour of Mayakkal by Rasu Peyandi; Mayakkal became entitled to 3 acres 41 cents in Survey No.90/1; the second item of the suit property comprised in Survey No.90/3 measuring 40 cents also belonged to Mayakkal and hence, she was entitled to 3 acres 81 ½ cents in Survey Nos.90/1 and 90/3; after the death of Mayakkal, the family properties were divided between her five sons, in which, Survey No.90/1 was allotted to the shares of Rasu Peyandi, Govindhan and Mayandi; the property in Survey No.90/3 along with 90/1 were alotted to the Chinna Peyandi Thevar and his brother Virumandi; hence, the property in Survey No.90/1 and 90/3 were sub divided; in such a way each of the five brothers were in possession and enjoyment of their respective shares allotted to them.
3.2. One of the brothers by name Govindhan registered a Othi Deed on 26.12.1973 in favour of his brother Mayandi Thevar in respect of an extent of 83 ¼ cents. In the recitals of the said Othi Deed, it is mentioned 6/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 that he got the said property through partition and the boundaries would also show that the property is surrounded by the shares allotted to other brothers; the said property was subsequently purchased by Mayandi Thevar by virtue of a sale deed dated 10.06.1975 and in the sale deed also, the boundaries were shown in the same fashion; Mayakkal purchased another extent of 75 cents in Survey No.90/1 on 16.09.1979 from Sivanandi and Karuppa Thevar; in the property details, northern side boundary is shown as the share belonged to Mayandi Thevar an extent of 74 ¼ cents was allotted to Mayandi Thevar in partition; hence, Mayandi Thevar is entitled to a total extent of 2 acres and 31 ½ cents in Survey No.90/1; the father of the plaintiff had also executed an Othi Deed on 30.03.2017 in favour of his brother Virumandi and he executed another Othi Deed on 02.08.1977 in favour of Mokks @ Chinna Peyandi Thevar; the property details of these Othi Deeds would also show the boundaries of other sharers; the father of the plaintiff Rasu Peyandi Thevar purchased an extent of 304 sq. ft from Mayandi Thevar through a registered sale deed dated 21.06.1993; this was the property allotted to the share of Govindhan and later purchased by Mayandi Thevar on 21.06.1975; the above documents would show that the plaintiffs and their 7/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 father knew about the fact of partition in the year 1970 itself. 3.3. Despite the plaintiffs claim right by virtue of a registered gift deed dated 08.07.2014, the executants of the gift deed had no right over the second item.Since Rasu Peyandi Thevar was a elder member, patta was issued in his name in respect of item No.2 of the suit property; the plaintiffs had taken advantage of the same and created a gift settlement deed in their favour; the second defendant Samuthiram, who is daughter of one of the sons of Mokka Chinna Peyandi Thevar constructed a pucca tiled roof property in a portion of the suit property and he is in possession of the same; the construction of the house by the second defendant in item No.2 of the suit property would show that the item No.2 was allotted to Chinna Peyandi Thevar and he had absolute right over the same; the plaintiffs were never in possession of the item No.2 of the suit property and hence, the suit has to be dismissed in respect of the prayer for declaration and permanent injunction.
4. On the basis of the above pleadings, the learned trial Judge has framed the following issues:
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i) jhth 1-k; ,yf;f brhj;J ¼ ghfk; bgWtjw;F thjpfs; jFjpa[ilatuh?
ii) jhth 2tJ ,yf;f brhj;J thjpfSf;F jdpj;J
ghj;jpag;gl;ljh?
iii) jhth 1k; ,yf;f brhj;ijg; bghWj;J ¼ ghfk; thjpfSf;F Kjy;epiyj; jPh;g;ghiz tHq;fj;jf;fjh?
iv) jhth 2tJ mapl;l brhj;ijg; bghWj;J thjpfs; nfhhpa[s;s thW tpsk;g[if kw;Wk; epue;ju cWj;Jf;fl;lis ghpfhuk; bgw thjpfSf;F chpik cs;sjh?
v) thjpfSf;F ntW VnjDk; ghpfhuq;fs; fpilf;fj;jf;fjh?
5.. During the course of trial, on the side of the plaintiffs, one witness was examined as P.W.1 and seven documents were marked as Ex.A.1 to Ex.A.7. On the side of the defendants, one witness was examined as D.W.1 and sixteen documents were marked as Ex.B.1 to Ex.B.16.
6. At the conclusion of the trial and after considering the materials available on record, the learned trial Judge had dismissed the suit in entirety. Aggrieved over that, the plaintiffs have preferred this Appeal Suit.
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7. The learned counsel for the appellants/plaintiffs submitted that the dispute is only with regard to item No.2 measuring 40 cents in Survey No.90/3; patta for the above said property stands in the name of the plaintiffs and their sisters; the respondents/defendants did not produce any document to show that the oral partition alleged by them; in the Othi deed produced by the defendants vide Ex.B.1 to Ex.B.10, there is no sub division or demarcation; hence, it is right on the part of the trial court to dismiss the suit on the basis of the documents produced by the defendants; the oral partition has to be proved without any room for doubt by way of showing subsequent mutation of Patta Deeds; without that, the partition cannot be presumed; though the patta is not conclusive proof for title, it is prima facie proof for title and possession; when Ex.A. 5 to Ex.A.7 shows the name of the plaintiffs and the defendants, the defendants did not produce any single document to show that it belonged to Mayakkal; hence, the trial court ought to have weighed the preponderance of probabilities in respect of suit item No.2 in favour of the appellants/plaintiffs. Hence, the appeal should be allowed.
8. The learned counsel for the respondents/defendants submitted that 10/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 though the suit has been filed in respect of item Nos. 1 and 2, the dispute revolves only item No.2 alone; there cannot be any oral sale deed and it is hit by Section 17 of the Registration Act; hence, the claim of plaintiffs that the father of the plaintiffs has purchased item No.2 by virtue of a sale deed, cannot be countenanced; just because the father of the plaintiffs, namely, Rasu Peyandi Thevar was an elder member of the family, patta for item No.2 stood in his name and the plaintiffs cannot be allowed to take advantage of the same; in order to claim title through patta, it should be shown that the revenue records continuously stood in favour of the plaintiffs in pursuance of the oral sale in favour of their father; Ex.A.5 and Ex.A.7, which are of the recent origin and no title can be conferred on the plaintiffs on the basis of the same; though the defendants did not produce any partition deed to prove the oral partition, the documents of the defendants produced as Ex.B.2 to Ex.B.10 would show that all the sons have a common ancestor, namely, Muthu Peyandi Thevar and they are enjoying a portion of the suit properties in the capacity as sharers; they had dealt with their respective shares on various dates; since the plaintiffs did not prove their title of their father through oral sale in respect of item No.2, the trial Judge had recorded a finding 11/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 against the plaintiffs; since item No.1 was already partitioned along with item No.2 and the brothers were in enjoyment of their separate shares and dealing with the same from time to time, it is right for the trial Judge to non-suit the plaintiffs for the reliefs claimed by them.
9. On the basis of the above submissions made by the respective parties, I feel that the following points for consideration are essential to appreciate the merits of this Appeal Suit:
i)Whether the second item of the property was self acquired property of the father of the plaintiffs?
ii) Whether the judgment of the trial court in dismissing the suit in entirety and denying the reliefs prayed by the appellants/plaintiffs is fair and proper?
10. The relationship between the appellants/plaintiffs and the respondents/defendants was not denied. The identity of the suit properties was also not in dispute. There is no dispute between the parties in respect of item No.1. The appellants/plaintiffs claim individual right in respect of item No.2 comprised in Survey No.90/3 12/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 measuring 40 cents. The respondents/defendants claim that they also form part of the joint family properties and it was partitioned between themselves along with the property comprised in Survey No. 90/1. The plaintiffs tried to trace their individual right in respect of the item No.2 by virtue of an oral sale said to have been executed in favour of their father namely, Rasu Peyandi Thevar. It is not the case of the plaintiffs that at the time when the item No.2 was purchased by their father through the alleged oral sale deed, the value of the property was below Rs.100/- and hence, the oral sale was valid. Even if it is presumed in favour of the plaintiffs that the value of the suit item No.2 is below Rs.100/- (Rupees one hundred only) at the time of the alleged oral sale in favour of their father namely Rasu Peyandi Thevar, the burden to prove the oral sale is on the plaintiffs. The appellants/plaintiffs have not produced any other documents except Ex.A.5 and Ex.A.7 with regard to their claim over the item No.2 of the suit property. Thus, point No.1 is answered.
11. Even in the plaint filed by the appellants/plaintiffs, the date of the oral sale was not mentioned. Whatever may be the type of the sale, it is 13/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 incumbent on the plaintiffs to prove that the sale was acted upon by way of taking possession of the suit item No.2 by the father and he was enjoying the same exclusively and thereafter, his wife and the children had continued to enjoy the same by having its possession. The appellants/plaintiffs did not show any such continuous documents or the revenue records to show that the father of the plaintiffs was in exclusive possession and enjoyment of item No.2 and the revenue records stood in his favour and later it got mutated in favour of their mother and other children. The first document, which had the details of item No.2 and filed by the appellants/plaintiffs was Ex.A.3. Ex.A.3 is the settlement deed executed by the mother and the sisters of the plaintiffs in their favour.
12. There is no document to show that before 08.07.2014, item No.2 was in the enjoyment of the plaintiff's father, mother or their children. For a property, which is said to have been acquired and enjoyed by the father for more than 62-70 years, it is not sufficient to produce a single title deed dated 08.07.2014. Without establishing that the executants of the settlement deed had title to transfer the right, no legal validity can be attached to Ex.A.3. It is submitted by the appellants/plaintiffs that when 14/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 the defendants did not produce any document in respect of item No.2, he had produced the patta in their favour, which is marked as Ex.B.5 to Ex.B.7 and hence, the court ought to have believed that prima facie title and possession was in favour of the plaintiffs.
13. But in order to prove the preponderance of probabilities with regard to title by virtue of the revenue records like patta and other documents of enjoyment, the documents pertaining to possession should show the continuous possession and enjoyment for a considerable number of years. As already discussed, the appellants/plaintiffs did not produce any other document to show that there was continuous enjoyment and possession and hence, the oral sale in favour of their father in respect of item No.2 is found to be false.
14. In the background of these facts, it is right for the trial court to non-suit the plaintiffs for the reliefs claimed by them. Since the Judgment of the trial court does not suffer from any factual or legal infirmity, it 15/17 https://www.mhc.tn.gov.in/judis A.S(MD) No.223 of 2019 does not warrant any interference. In my opinion, it does not warrant interference. Thus, point No.2 is also answered.
In the result, this Appeal Suit is dismissed and the judgment of the learned V Additional District Judge, Madurai, dated 26.09.2019 made in O.S.No. 182 of 2014 is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
15.03.2022
Index : Yes/No
Internet : Yes/No
CM
To
1.The V Additional District Judge, Madurai.
2.The Section Office,VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S(MD) No.223 of 2019
R.N.MANJULA, J.
CM
Pre-delivery Judgment in
A.S(MD).No.223 of 2019
and C.M.P(MD)No.11955 of 2019
15.03.2022
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