Madras High Court
Prema Suryanarayanan vs S.Venkataraman on 21 March, 2018
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS JUDGMENT RESERVED ON : 09.03.2018 JUDGMENT PRONOUNCED ON : 21.03.2018 CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.S.No.104 of 2007 1.Prema Suryanarayanan 2.Meenakshi Raman ... Plaintiffs Vs. 1.S.Venkataraman 2.S.Rajaraman 3.K.Madhavan 4.M.Sriram ... Defendants PRAYER : Plaint filed under Order IV Rule 1 of O.S. Rules read with Order VII Rule 1 of Code of Civil Procedure, praying for the following judgment and decree:- (a)partitioning and dividing by metes and bounds the Schedule mentioned properties in equal 1/5th shares between the first and second plaintiffs, the firs and second defendants and 1/5th share jointly for the 3rd and 4th defendants respectively; in the event the said schedule mentioned property is indivisible to sell the same and distribute the proceeds from such sale in equal shares in the manner aforementioned and (b)directing the defendants to pay the costs of the suit. For Plaintiffs : Mr.Ragul Balaji for M/s.Satish Parasaran For Defendants : Mr.Yashodhavardhan, Senior Counsel for Mr.P.Sesubalan Raja for D1 Mr.P.B.Balaji for D3 and D4 J U D G M E N T
The plaintiffs who were the daughters of one Sambasivam who died intestate on 05.11.1971 have come forward with the present suit seeking partition and separate possession of their 2/5th [1/5th each] share in the suit property.
The brief averments in the plaint are as follows:-
2. The suit property belonged to one Sambasivam, the father of the plaintiffs, defendants 1 and 2, father-in-law of the 3rd defendant and grandfather of the 4th defendant. The said Sambasivam died intestate on 05.11.1971 leaving behind his wife Jayalakshmi, three daughters viz., Prema - 1st plaintiff, Meenakshi - 2nd plaintiff, Subbalakshmi who died in 1990 and two sons viz., Venkataraman - 1st defendant and Rajaraman - 2nd defendant. According to the plaintiffs, Jayalakshmi W/o. Sambasivam died intestate in 1998. Therefore, according to the plaintiffs, the plaintiffs and the defendants 1 and 2 would each be entitled to 1/5th share and the remaining 1/5th share of Subbalakshmi would devolve on the defendants 3 and 4 being her husband and only son. On the above averments the plaintiffs seek a preliminary decree for partition of the suit properties. It is also claimed that the 1st defendant being the eldest son is in possession of the properties.
3. The 1st defendant filed a written statement resisting the suit contending that there was an oral partition between the parties in 1993 and according to the said oral partition, the suit property which is the only immovable property left behind by late Sambasivam was agreed to be taken by the two sons. It is also claimed by him that Sambasivam when he died was carrying on business as railway contractor and he had left lot of contract works incomplete. Therefore, the 1st defendant being the eldest son had to give up his studies to take over the business.
4. It is also claimed that the 1st defendant had sold the property which stood in his name in order to carry on the business and complete the contract works. The 1st defendant was about 23 years old at the time when his father Sambasivam died, the 2nd defendant was 21 years old and the 2nd plaintiff was about 15 years old. It was the 1st defendant who had carried on the business and performed the marriage of 2nd plaintiff out of the funds.
5. It is also claimed that the 1st defendant had filed O.P.No.8 of 1972 before this Court seeking letters of administration. While granting letters of administration, the assets of Sambasivam including the property subject matter of the present suit were valued and the 1st defendant was directed to deposit a sum of Rs.16,532/- being 1/6th share of minor Meenakshi, the 2nd plaintiff into the Court. The said amount was deposited on 30.03.1972 and subsequently the same was kept in fixed deposit in Indian Overseas Bank, T.Nagar Branch. Upon attaining majority, it is claimed that, the 2nd plaintiff withdrew the said amount after obtaining permission of the Court. Thus, according to the 1st defendant, the 2nd plaintiff had obtained her due share in the properties left by Sambasivam as early as in the year 1972 and hence, she is not entitled to any share in the suit properties.
6. The 1st defendant would also claim that he had purchased the property at Balaji Avenue at T.Nagar in the year 1969 and also put up a building in 2000 sq.ft in the said land. The said property was sold on 04.11.1976 for a consideration of Rs.90,000/- and the funds were used for discharging the debts of Sambasivam and for performance of the marriage of the 2nd defendant in the year 1978. Therefore, according to the 1st defendant, the oral arrangement in the year 1993 was entered into taking into account all the circumstances including the sale of the property belonging to the 1st defendant. As per the said oral arrangement, the plaintiffs as well as the other sister Subbalakshmi had agreed not to claim any share in the suit property.
7. It is also contended that the 1st and 2nd defendants have been in possession of the property exclusively for a period of 35 years. Therefore, the plaintiffs had lost their right to claim partition by ouster. It is also claimed that the mother Jayalakshmi, who died in 1998 had left a registered Will dated 20.01.1989, which is also attested by the 1st plaintiff Prema, bequeathing all her rights over the property in favour of the 1st defendant. It is claimed that the said Will was not probated in view of the partition which was agreed to be reduced to writing. Therefore, the 1st defendant seeks dismissal of the suit.
8. The 2nd defendant, the other son did not participate in the proceedings and remained exparte.
9. The defendants 3 and 4 viz., the husband and son of the deceased daughter Subbalakshmi had filed a written statement accepting the claim of the plaintiffs with reference to the 1/6th share. But the defendants 3 and 4 would claim no knowledge of any other movable property left by the parents viz., Sambasivam and Jayalakshmi. The defendants 3 and 4 would also deny knowledge of any attempt for an amicable division of the property in 1993. In fact it is claimed that the dispute was amongst the brothers viz., the defendants 1 and 2 and the sisters including the mother of the 4th defendant were only silent spectators. Therefore, the defendants 3 and 4 would also contend that they never stood in the way of any amicable division of the property and claim that it is actually a dispute between the brothers viz., the defendants 1 and 2 which had delayed the process for all these years.
10. On the above pleadings the following issues were framed by this Court on 10.07.2008:
1. Whether the plaintiffs are entitled to 1/5th share in the suit property?
2. Whether the plaintiffs are entitled to partition and separate possession as claimed in the plaint?
3. To what other relief, the parties are entitled to?
The following additions issues were framed by this Court on 02.07.2009:
1. Whether the oral partition dated 29.07.1993 as pleaded by the 1st defendant is true and valid and acted upon?
2. Whether the plaintiffs and other female heirs were ousted from enjoying the suit property, which was alleged to have been allotted to the share of the 1st defendant and if so, whether 1st defendant acquired prescriptive title by adverse possession also over it?
3. Whether the 2nd defendant was allotted her 1/6th share as per the order of this Court in O.P.No.8 of 1972?
4. Whether the purpose of solemnising the marriage of the 2nd plaintiff and for discharging the debts of late Sambasivam, the defendant sold his personal property, viz., Balaji Avenue property and met those marriage expenses and discharged the debt respectively?
5. Whether D1 spent a sum of Rs.5 lakhs for making additions, alterations and for re-construction of the schedule mentioned property?
11. Based on the above issues in the suit, the parties went to trial. At trial the plaintiffs 1 and 2 were examined as PW1, PW2 respectively and the 1st defendant was examined as DW1. Exs.P1 to P4 were marked on the side of the plaintiffs and Exs.D1 to D7 were marked on the side of the defendants.
12. Before dealing with the issues that are raised in the suit, it should be pointed out that the registered Will dated 20th January 1989 said to have been executed by Jayalakshmi W/o. Sambasivam has been marked as Ex.D2 in cross examination of PW1. The said Will has been executed at Chennai within the original jurisdiction of this Court and the same has been registered in the Office of Sub-Registrar, T.Nagar. It is seen that no probate or letters of administration has been obtained for the said Will and in view of the prohibition contained in Section 213 of the Indian Succession Act, the said Will cannot be relied upon by the 1st defendant in order to establish his right under the same.
Issue Nos.1, 2 and Additional Issue No.1:-
13. These issues are taken up together as they are interlinked. The primary defence of the 1st defendant is that there was an oral partition between the parties in the year 1993 and as per the same the suit property was agreed to be taken by the sons of Sambasivam alone. The claim of the 1st defendant is that the daughters viz., plaintiffs 1 and 2 and the mother of the 4th defendant had given up their rights over the suit property under the said oral arrangement. The relationship between the parties is admitted. The fact that the property is self-acquired property of late Sambasivam is also admitted. The shares that the parties would legally be entitled to, in the event of intestacy of Sambasivam and his wife Jayalakshmi is also admitted by the parties. Therefore, it is for the 1st defendant who pleads the oral partition to establish the same.
14. Insofar as the claim of the 1st defendant that there was an oral partition, his pleading is to the effect that considering the sacrifice made by him in taking over the business of the father, discontinuing his education, it was decided by the parties that the suit property viz., Usman Road house should be taken by him and the 2nd defendant absolutely and the daughters viz., plaintiffs as well as the deceased daughter Subbalakshmi will not have any right over the same.
15. Apart from his oral evidence the 1st defendant would rely upon two documents to strengthen his case of oral partition. The 1st of the documents is Ex.P1 which is a letter by the maternal uncle of the plaintiffs and the defendants 1 and 2 Shri.R.Mahadevan a lawyer from Tanjavur accompanied by a suggested family arrangement. This letter is addressed to Surya Narayanan the husband of the 1st plaintiff and it seeks the approval of the parties for the arrangement suggested by him.
16. The said unsigned arrangement records the fact that there was an earlier oral partition even during the life time of late Jayalakshmi Sambasivam in the year 1993 and the same was given effect to at that time itself. It also suggests that some of the parties attempted to wriggle out of the oral partition as the same was not reduced to writing. It is this attempt to wriggle out which necessitated intervention of the Panchayatdars and the said memorandum evidences the allotment of the house to the defendants 1 and 2 and it also states that the parties No.3 to 6 to the said document viz., two daughters and the heirs of the deceased daughter i.e., plaintiffs and defendants 3 and 4 herein will not make any claim over the properties that are allotted to the defendants. This suggestion of the maternal uncle has not been accepted by the parties and the document was not signed by them.
17. The other document which is sought to be relied upon by the 1st defendant to show that there was infact an oral partition in the year 1993 is Ex.D3 which is the power of attorney executed by the 4th defendant in favour of his father 3rd defendant on 4th August 1993. The said power of attorney empowers the father viz., Mr.Madhavan, the 3rd defendant to execute all documents pertaining to the suit property and to confirm and affirm the oral partition.
18. The recitals in the power of attorney shows that the oral partition was entered into on 29.07.1993 among the parties and it was also agreed to record the same. The said document does not divulge the details of the said oral partition or the so called arrangement made between the parties. It does not even record the fact that the parties had agreed to a particular manner of division or the parties have given up any right over the properties of Sambasivam. The document is in the form of general power of attorney which authorizes the agent to execute whatever document that is required for development or partition of the property.
19. Mr.Yashodhvaradhan, learned Senior Counsel appearing for the 1st defendant would rely upon the above two documents to contend that the 1st defendant had in fact established that there was an oral partition amongst the members of the family in July 1993 as claimed by him. Mr.Yashodhvaradhan, learned Senior Counsel would also draw my attention to certain portion of the cross examination of PW1 to contend that the 1st defendant as the eldest son had to sacrifice his studies in order to complete the work left incomplete by his father.
20. He would also point out that, PW1 had admitted the Will executed by the mother on 20.01.1989 marked as Ex.D2. The relationship between Mr.Mahadevan, the author Ex.P1 is also admitted by PW1. Relying upon the above admissions of PW1 and the fact that PW1 had admitted that the 1st defendant had sold the house property that stood in his name at the time of performance of the marriage of the 2nd plaintiff, Mr.Yashodhvaradhan, learned Senior Counsel would vehemently contend that the oral partition that happened in the year 1993 has been established and therefore, the plaintiffs cannot claim a share in the property.
21. The 1st defendant had filed a proof affidavit and in his cross examination, he had admitted that the defendants 1 and 2 had purchased various properties after the death of their father. The 1st defendant would admit that the land of an extent of 10 acres was purchased in Mahabalipuram sometime in the year 1983 84 by the firms M/s.S.Venkatraman and S.Venkatraman and Co., in which the 1st defendant, his wife, the mother Jayalakshmi Sambasivam, brother Rajaraman, 2nd defendant and 2nd defendants wife were partners.
22. It is also claimed that from and out of the income from the business the brothers had purchased a residential apartment at Parsn Paradise, a flat in Anna Nagar, land and a Bunglow in Tiruvanmiyur, a flat in Wingate gardens, Mandaiveli, properties at Maraimalai Nagar, a flat in SriNagar Colony. All these properties were purchased in the name of the 1st defendant, wife of the 1st defendant, 2nd defendant or the wife of the 2nd defendant and the 1st defendant in his cross examination would admit that all these properties were acquired out of the share of profits/income from the respective partnership firms.
23. It is also in evidence that the partnership firms were mere continuance of the business viz., the railway contract work which was carried on by the father. Therefore, it cannot be said that the 1st defendant had sacrificed his education and because of the said sacrifice he had lost an opportunity to make money. The acquisition of the above properties from the profits of the said business itself would go to show that the business left behind by the father was a flourishing business. The plaintiffs, of course, are not seeking any share in the properties that stand in the name of the 1st defendant, the 2nd defendant or their spouses.
24. Of course, a partition can be oral, but, a party pleading oral partition has to establish the same by producing convincing evidence. A careful examination of the evidence on record in the case on hand would show that except the Exs.P1 and D3 there is no other evidence to show that there was an oral partition and the properties were divided in a particular manner in the said oral partition. The claim of the 1st defendant is that the sisters had agreed to give up their shares in the suit property. Such giving up would amount to a release of right in immovable property which has to be by way of a registered instrument. A partition can be oral and it could be unequal also but when a release is claimed it has to be by way of a registered instrument. No such registered instrument has been produced and it is not the case of the 1st defendant that the sisters had in fact executed a registered instrument relinquishing their rights over the properties.
25. The attempted division of the properties made by the maternal uncle through Ex.P1 in the year 2003 has also failed, therefore, I am of the considered opinion that the 1st defendant has not made out the case of oral partition pleaded by him. Hence, the additional issue No.1 is answered against the 1st defendant and in favour of the plaintiffs holding that the 1st defendant had failed to prove the oral partition dated 29.07.1993 and the issue Nos.1 and 2 are answered in favour of the plaintiffs concluding that they are entitled to partition and separate possession of their 1/5th share each as claimed in the plaint.
Additional Issues No.2:-
26. The 1st defendant had also pleaded that pursuant to the said oral partition, he and the 2nd defendant had been in possession of the property for nearly 35 years as absolute owners and therefore, the plaintiffs are ousted from enjoyment of the property and hence, they cannot claim any share in the property at this distant point of time. In order to prove ouster there must be concrete evidence to show that the sharer who claims ouster had excluded the other sharers by positive assertion of title. In the case on hand such a positive assertion of title to the knowledge and detriment of the other shares is totally absent.
27. The 1st defendant had actually pleaded an alternative case of ouster. He rested his case on the twin pleas of the prior partition as well as ouster. He should have elected any one of them at the trial since these two pleas are mutually exclusive. From the evidence on record, I am unable to find such election having been made by the 1st defendant. He had chosen to ride on both the horses viz., an assertion of title as per the oral partition as well as on the ground of the ouster. Even assuming that the plea of ouster can be taken as an alternative plea, very strong evidence is required to show actual ouster.
28. The claim of ouster of the 1st defendant is belied by Ex.P1 itself. Ex.P1 very clearly shows that the plaintiffs have been demanding a partition even in the year 2003 which prompted the maternal uncle Mr.Mahadevan to intervene in order to find an amicable solution to the dispute. Unfortunately, for the 1st defendant the said attempted intervention did not bear desired results. Therefore, the irresistible conclusion is that the 1st defendant has not made out a case of ouster as claimed by him. Additional Issue No.2 is answered against the 1st defendant in favour of the plaintiffs.
Additional Issue No.3:-
29. It is claimed by the 1st defendant that, the 2nd plaintiff was allotted a 1/6th share as per the order of this Court in O.P.No.8 of 1972 and therefore, she is not entitled to any share in the suit property. O.P.No.8 of 1972 was filed by the 1st defendant for grant of letters of administration in order to enable him to manage the business of his father. This Court had directed to deposit a sum of Rs.16,532/- in the name of the 2nd plaintiff, since, she was a minor at that point of time. The said sum of Rs.16,532/- represented the value of her share in the properties as stated by the 1st defendant in his original petition.
30. Further, it is seen from the Ex.D7 that the then minor viz., the 2nd plaintiff had applied for payment out of the said sum of Rs.16,333.62/- which was lying in the fixed deposit in the Indian Overseas Bank, T.Nagar Branch during the year 1975. PW2 in her evidence has stated that, of course, a cheque was issued in her name and the same was encashed and the money was drawn by the 1st defendant as the eldest male member of the family at that point of time. It is also seen that the same counsel who represented the 1st defendant in O.P.No.8 of 1972 has also represented the 2nd plaintiff in her application seeking withdrawal.
31. I do not see any reasons to disbelieve the evidence of 2nd plaintiff with reference to the payment of the amount to the 1st defendant at that point of time. In cross examination, with reference to this particular aspect, the 1st defendant had claimed that he does not remember, since the matter is 40 years old. Therefore, the payment of the sum of Rs.16,532/- which represented 1/6th of the asset value of the father in the name of the 2nd plaintiff will not dis-entitle her from claiming a share in the properties of her father, more so, in the absence of any document to show that she had relinquished the said right. Hence, the additional issue No.3 is answered against the 1st defendant and in favour of the 2nd plaintiff.
Additional issue No.4:-
32. Though the 1st defendant would claim that he had sold the property at Balaji Avenue to meet the expenses of the marriage, the 1st defendant has not satisfactorily explained as to how he purchased the said property. He would claim that he had purchased the property in 1969, he would also claim that he was 23 years at the time of the death of his father in 1971. Therefore, in the year 1969, the 1st defendant was only aged 21 years. It is also his specific case in the written statement as well as in his evidence that he was actually studying chartered accountancy during the said period. Therefore, it is in all probability that the property at Balaji Nagar was purchased by the father in the name of the 1st defendant, that is the reason why the 1st defendant came forward to alienate the property in 1978 in order to perform the marriage of the 2nd plaintiff.
33. It could be seen from the evidence of the 1st defendant that by selling the property at Balaji Avenue apart from performing the marriage of the 2nd plaintiff he had also discharged the debts owed by the father. Therefore, it cannot be said that the entire sale proceeds at Balaji Avenue had been spent on the family of the 2nd plaintiff. I also conclude that, the 1st defendant had not established that the property at Balaji Avenue was acquired by him out of his own earnings. Hence, the Additional Issue No.4 is answered against the 1st defendant and in favour of the plaintiffs.
Additional Issue No.5:-
34. The 1st defendant had claimed that he had spent a sum of Rs.5,00,000/- for doing additions, alterations and for reconstruction of the schedule mentioned property. I find absolutely no evidence to establish the said claim of the 1st defendant. No documents have been produced in order to buttress the claim of the 1st defendant regarding the expenditure incurred by him in developing the property. No particulars of development have been given in the proof affidavit also. It should be pointed out that the proof affidavit is totally silent about the claim of the 1st defendant that he had incurred an expenditure of Rs.5,00,000/- for developing the property. Therefore, this issue has to necessarily be answered against the 1st defendant and in favour of the plaintiffs.
To what other reliefs?
35. To sum up, I find that the plaintiffs are entitled to partition and separate possession of their 1/5th share each in the suit properties. The plaintiffs have not prayed for any mesne profits. Therefore, the plaintiffs are not entitled to any past mesne profits till date of the decree.
36. In the result, the suit is decreed granting a preliminary decree declaring that the plaintiffs 1 and 2 are entitled to 1/5th share each in the suit property. However, bearing in mind the relationship between the parties, the parties are directed to bear their own costs in the suit.
21.03.2018 dsa List of the Witnesses examined on the side of the Plaintiffs:
PW1 Mrs.Prema Suryanarayanan PW2 Mrs.Meenakshi Raman List of Exhibits marked on the side of the Plaintiffs:
Sl.No. Exhibits Description of documents Date 1 Ex.P1 Original letter from 1st defendant's counsel enclosing draft family arrangement.
11.06.2003 2 Ex.P2 Xerox copy of the legal notice issued to the defendants.
16.03.2006 3 Ex.P3 Xerox copy of the reply from the 1st defendant, reply for the Ex.P2.
24.04.2006 4 Ex.P4 Xerox copy of the legal notice by plaintiff counsel for the reply for Ex.P3.
09.07.2006 List of the Witnesses examined on the side of the Defendants:
DW1- Mr.S.Venkataraman List of Exhibits marked on the side of the Defendants:
Sl.No. Exhibits Description of documents Date 1 Ex.D1 The letter from the defendant's father to the Indian Overseas Bank.
15.02.1971 2 Ex.D2 Original Will.
20.01.1989 3 Ex.D3 Original power of Attorney.
04.08.1993 4 Ex.D4 Certified copy of the petition in OP.No.8 of 1972.
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5Ex.D5 Accounts of the estate of S.Sambasivan.
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6Ex.D6 Certified copy of the order in OP.No.8 of 1972.
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7Ex.D7 Certified copy of the Affidavit in OP.No.8 of 1972.
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21.03.2018 dsa To The Sub Assistant Registrar, Original Side, High Court, Madras.
R.SUBRAMANIAN,J.
dsa Pre-Delivery Judgment in C.S.No.104 of 2007 21.03.2018