Madras High Court
K.Shanmugam vs Kangai Ammal on 22 February, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.02.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
A.S.(MD)No.13 of 2009
and
M.P.(MD)No.1 of 2009
K.Shanmugam ... Appellant 1 and 2 / Defendants 7 and 8
2.K.S.Ganapathy
3.S.Suseela
4.S.Senthilkumar
5.S.Jeyaganesh
6.S.Mayilvani ... Appellants 3 to 6
(Respondents 3 to 6 are brought on record as legal heirs of deceased first
appellante, vide Court order dated 03.02.2017, made in M.P.(MD)Nos.1 and 2 of
2015 in A.S.(MD)No.13 of 2009.
-Vs-
1.Kangai Ammal
2.P.Vennila
3.Anbu Thambu ...Respondents 1 and 2 / Plaintiffs
4.Chitturani
5.Mariammal @ Mary
6.Ajitha
7.Minor Arul Vinodhkumar
8.Minor Anuja ... Respondents 3 to 8
/ Defendants 1 to 6
PRAYER: Appeal Suit is filed under Section 96 of the Civil Procedure Code,
against the judgment and decree passed by the Additional District, Fast Track
Court No.1, Madurai, made in O.S.No.29 of 2005, dated 29.09.2008.
!For Appellants :Mr.PT.S.Narendravasan
^For R1 and R2 :MR.R.Suriya Narayanan
For R3 to R8 :Given up
:JUDGMENT
This appeal has been filed against the judgment and decree passed by the Additional District and Sessions Court, Fast Track Court No.1, Madurai, made in O.S.No.29 of 2005, dated 29.09.2008.
2.This appeal has been filed by the defendants 7 and 8 in O.S.No.29 of 2005, on the file of the Additional District and Sessions Court, Fast Track Court No.1, Madurai. Respondents 1 and 2, as plaintiffs have filed the suit in O.S.No.29 of 2005, for partition and separate possession of their 2/5 share in the suit properties and for mesne profits.
3.The case of the plaintiffs /respondents 1 and 2 is that the suit properties originally belonged to one K.P.Kuppusamy Mooppanar and the same are the self acquired properties of the said K.P.Kuppusamy Mooppanar. The first plaintiff is the first wife of the said Kuppusamy Mooppanar and the second plaintiff is her daughter. Defendants 1 and 2 are admittedly the children of Kuppusamy Mooppannar, through his second wife. Defendants 3 to 6 in the suit are the legal heirs of yet another brother of the second plaintiff. It is not in dispute that the defendants 1 to 6 remained ex-parte throughout the proceedings before the trial Court. The case was contested only by the defendants 7 and 8. The defendants 7 and 8, admittedly the purchasers of the suit properties from defendants 1 and 2.
4.The stand taken by the defendants 7 and 8 in the written statement is that the first plaintiff is a divorced wife of K.P..Kuppusamy Mooppanar and that therefore, she has no right to claim any share in the suit properties. Since the second plaintiff got married prior to 1989, it is further contended that she has no legal right over the suit properties. Thirdly, it was contended that the legal heirs of of the predeceased divided son, by name, Asaithambi is not entitled to any share in the suit properties, as he converted into Christianity. It is also contended by the appellants that several properties left by the deceased K.P.Kuppusamy Mooppanar, situated at Vilampatti Village of Nilakottai Taluk and Keezhaiyur Village of Melur Taluk, have not been included in the partition and that therefore, the suit for partial partition is not maintainable. The trial Court rejected the contention of the defendants and decreed the suit as prayed for. Aggrieved over the same, the defendants 7 and 8 have preferred the above appeal suit.
5.The main contention that was raised by the appellants is that the suit for partial partition is not maintainable. The learned Counsel for the appellants submitted that despite the specific stand taken by the defendants in the writ statement, the trial Court did not consider the same with reference to the documents filed by the appellants before the Court. The learned Counsel for the appellants relied upon document Ex-B7, which appears to be a Chitta extract, in respect of certain properties, showing some properties, which are left in the suit, registered in the name of K.P.Kuppusamy Mooppanar. Ex-B9, is an Encumbrance Certificate. This Encumbrance Certificate, of-course, would show that the said K.P.Kuppusamy Mooppanar, had entered into a sale agreement on 02.09.2001 with a third party.
6.It is the case of the appellants that the properties which are the subject matter of sale agreement have not been included in the suit for partition. Finally, another document, Ex-B14, a registered partition deed, dated 23.06.1982, was filed to show that there was a partition between the said K.P.Kuppusamy Mooppanar and his son Asaithambi. It is further stated that the property described as 'A' schedule property in the document, which was allotted to K.P.Kuppusamy Mooppnar is not included in the suit. The learned Counsel for the appellants relied upon the evidence of PW-1, who during the cross examination, admitted that the said K.P.Kuppusamy Mooppanar, had some other properties and that those properties were not included in the suit. From the documents filed by the appellants before the lower Court, it cannot be concluded that the said K.P.Kuppusamy Mooppanar, had several other properties and that all the properties owned by Kuppusamy Mooppanar, had not been included in the suit. In a suit for partition, the plaintiffs have to include all the properties, which are known to be the properties of the person through whom, the plaintiffs claim share. In the absence of any material or evidence to prove the existence of other properties, it is not possible for the plaintiffs to prove that there are no other properties left by K.P.Kuppusamy Mooppanar. However, the defendants have taken a specific stand in the written statement that they have not filed positive documents and oral evidence, to prove the existence of other properties, when the suit was filed.
7.The learned Counsel for the respondents relied upon a judgment of this Court in the case of Karuppiah and another vs C.Muniyappan and others, reported in 2014 (2) CTC 706 for the proposition that it is not open to alienee to contend that suit is bad for partial partition, as to the maintainability of the suit, on the ground of partial partition and that this plea is not available to the alienee of the property, from some of the co- owners, who have denied right of the non-alienating co-owner. The relevant portion of the order is extracted as follows:
?25. The defendants have stated in their written statement that after their purchase of the property in 2000, the seventh defendant had improved the land by constructing a tractor shed and a cattle shed and raised barbed wire fencing around the suit property. While so, when it is found that the seventh defendant is entitled to only 1/7th share that may be allotted to his vendor viz., sixth defendant if any improvement that has been made in the property either temporary or permanent, it is not binding on the plaintiffs. The seventh defendant having purchased an excess extent cannot claim equity on the ground that he has put up a structure in the property. Having purchased a portion of the property in an undivided share, the seventh defendant cannot have any claim of equity on the ground that he has improved the property and the same is also not binding on the plaintiff. It is the duty of the seventh defendant to deliver a vacant possession of the excess share in his possession in the final decree proceedings.
26. In the foregoing circumstances, it can be seen that the appeal filed by the alienee who is fighting the non-alienating co-owners cannot have any indulgence to raise objections which are open only to the joint owners or co-
owners or the tenants in common.?
8.In respect of the properties of the father, which are held to be his separate property, of course, all the properties which are admittedly or proved to be the properties of the father, should be included in the suit for partition. It is only to avoid multiplicity of proceedings, such principle was reiterated. Therefore, a suit for partial partition, is held to be not maintainable. However, it has to be established on facts that the plaintiffs purposely excluded certain other properties. Except, showing the Chitta extract, no other documents or evidence is produced before this Court to prove that the said K.P.Kuppusamy Mooppanar had other properties as well and that he had not dealt with those properties during his life time. Even the Encumbrance Certificate, is not produced to show that the father had not sold any other properties, which he had acquired. When it is stated that the properties are the self acquired property of the father, the contesting defendants who have raised plea that the suit is bad for partial partition should prove the existence of properties by documents of sale deed or other parental documents by which it can be stated that the said K.P.Kuppusamy Mooppanar had left those properties and that they are available for partition. The burden lies on the person who pleads partial partition to establish availability of other properties. Even otherwise, the plea is not available to the appellants.
9.The next submission of the learned Counsel for the appellants is that one of the sons of the first plaintiff by name, Asaithambi, is not entitled to any share, as he converted into Christianity. Though in the written statement filed by the defendants 7 and 8, it was contended that the said Asai Thambi is not entitled any other property, except the statement of the plaintiff as PW-1, no other evidence is produced before the trial Court to prove that the said Asai Thambi ceased to be a Hindu during the life time of the father, K.P.Kuppusamy Mooppanar. The other contention raised by the defendants before the lower Court, with regard to the entitlement of plaintiffs 1 and 2 are not pressed by the learned Counsel for the appellants. Having regard to the discussion made above, this Court does not find any merit in the above appeal, so as to interfere with the findings of the trial Court with regard to the entitlement of 2/5 share in the suit properties.
10.As a result, this appeal suit is dismissed and the judgment and decree passed by the Additional District, Fast Track Court No.1, Madurai, made in O.S.No.29 of 2005, dated 29.09.2008 is confirmed. No costs. Consequently, the connected, miscellaneous petition is closed.
To
1.The Additional District, Fast Track Court No.1, Madurai.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.