Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1166 (MAD)

A. Pethaperumal v. Vetriselvi & Another

2005-07-25

R.BANUMATHI

body2005
Judgment :- This Second Appeal arises out of the Judgment and Decree dated 11.12.2000 passed by the Subordinate Judge, Thiruvarur made in A.S.No.27 of 2000, confirming the Judgment and Decree dated 28.04.2000 passed by the District Munsif, Nannilam in O.S.No.48 of 1999. The unsuccessful Defendant is the Appellant. 2. The parties are related as under:- Arumuga Udayar | | ------------------------------------------------------- | | | | | Amsavalli Thaiyalnayagi Padma Pethaperumal Manickam | (Defendant) = Vetriselvi | | | | | Abirami --------------------------------- | | | | | Indira Vetriselvi D D D 3. Arumuga Udayar died in 1973-74. His Wife pre-deceased him. The Suit in O.S.No.48 of 1999 relates to "A” and "B” Schedule Property viz., Door Nos.32 and 33 of Nallamangudi Village. Case of the Plaintiffs is that the Three Daughters of Arumuga Udayar has relinquished the right and share in the family properties in favour of their Brothers. The Panchayat Assignment and other records for the Suit Houses stand in the joint name of Manickam and the Defendant. The Defendant – Pethaperumal has been residing in Chennai. Amsavalli – Mother of the First Plaintiff has been residing in Door No.32. To prevent any differences in the family, Amsavalli had shifted her residence to Door No.31 about three years prior to the filing of the Suit. Door No.32 remaining vacant under the Control of the Plaintiffs. Door No.33 had been let out to Indira-Daughter of Amsavalli by First Plaintiff’s Husband Manickam. After the death of Manickam, the Tenant Indira had become a Tenant under the First Plaintiff under an Oral Lease Agreement. Indira had purchased another house in the same street and she vacated Door No.33 on 09.02.1998. Thereafter, one Tamilselvan became the Tenant in Door No.33 on 23.03.1999. The Tenant – Tamilselvan informed that the Court Ameen had come to the premises to effect delivery of possession of Door No.33. Only then, the First Plaintiff came to know about the R.C.O.P.No.7 of 1996. The First Plaintiff was not informed about R.C.O.P.No.7 of 1996 by the Tenant – Indira. Only to grab the joint family property, the Defendant has filed R.C.O.P.No.7 of 1996. The Plaintiffs are entitled to half share in Door No.32 and 33. Since the Defendant has been acting against the interest of the joint family, the Plaintiffs have filed the Suit for Partition of Door Nos.32 and 33. Only to grab the joint family property, the Defendant has filed R.C.O.P.No.7 of 1996. The Plaintiffs are entitled to half share in Door No.32 and 33. Since the Defendant has been acting against the interest of the joint family, the Plaintiffs have filed the Suit for Partition of Door Nos.32 and 33. According to the Plaintiffs, Door No.33 has been let out to the Tenant and hence, Section 23 of the Hindu Succession Act is not applicable. Both the houses are available for partition. When the Plaintiffs requested the Defendant to effect partition on 05.02.1999, the Defendant had refused. Hence, the Suit for Partition. 4. The Defendant has filed the Written Statement contending the share of the Plaintiffs in the suit houses. According to the Defendant, his Brother – Manickam had gone in adoption to one Manickam Udayar and Anjugathammal. the said Manickam Udayar executed a Will on 13.11.1972 and the said Anjugathammal bequeathed her properties by executing a Will dated 20.06.1973. Manickam-Husband of the First Plaintiff was the Son of the said Manickam Udayar. Manickam had actually orally relinquished his right in the family properties. The First Plaintiff is the Daughter of Amsavalli. The said Amsavalli has Five Daughters. Only the Defendant has actually helped the Daughters of Amsavalli to come up in life. The First Plaintiff’s Sister – Indira was a Tenant in Door No.33 and she has not paid the rent. Hence, the Defendant had taken steps for vacating Indira by filing R.C.O.P.No.7 of 1996 and Eviction was ordered. Manickam was ousted from the Suit Properties. The Plaintiffs have perfected his Title by long possession and enjoyment. Hence, the Plaintiffs are not entitled to claim any share in the Suit Properties. 5. On the above pleadings, in the Trial Court, two issues were framed. To substantiate the contention of the parties, the First Plaintiff was examined as P.W.1. Onbehalf of the Plaintiff, Exs.A.1 to A.22 were marked. The Defendant has examined as D.W.1. Onbehalf of the Defendant, Exs.B.1 to B.30 were marked. 6. Upon consideration of the evidence adduced by both parties, learned District Munsif found that both the items of the properties are available for Partition. Finding that the Defendant is residing in Chennai, learned District Munsif held that the Defendant may not know the real facts. Onbehalf of the Defendant, Exs.B.1 to B.30 were marked. 6. Upon consideration of the evidence adduced by both parties, learned District Munsif found that both the items of the properties are available for Partition. Finding that the Defendant is residing in Chennai, learned District Munsif held that the Defendant may not know the real facts. Finding that the Plaintiffs have been in joint enjoyment and possession of the Suit Properties, learned District Munsif negatived the plea of the Defendant that he had been in exclusive possession of the Suit Property. 7. By the Judgment dated 11.12.2000 in A.S.No.27 of 2000, learned Subordinate Judge, Thiruvarur (First Appellate Court) has confirmed the findings and the Judgment and Decree of the Trial Court. The First Appellate Court held that there has been already partition is not substantiated by evidence. 8. Aggrieved over the concurrent findings of the Courts below, the Defendant has preferred this Second Appeal. On 08.05.2001, while admitting this Second Appeal, this Court has framed the following substantial questions of law:- (1) Whether the Courts below are right in holding that the Suit is not barred by Limitation? and (2) Whether the Courts below are right in rejecting Ex.A.1-Will executed by the adopted Father of the Deceased Manickam, the First Plaintiff’s Husband? 9. Learned Counsel for the Appellant / Defendant has submitted that when Manickam has gone in adoption to the family of Manickam Udayar, it ought to have been held the Deceased-Manickam was ousted from the possession of the family properties. Submitting that in number of documents, Manickam had been shown as the Adopted Son of Manickam Udayar and Anjugathammal, learned counsel for the Appellant has submitted that the Courts below have not properly appreciated the evidence adduced by the Defendant and his oral evidence. It is further submitted that the findings of the Courts below that the Plaintiffs are entitled to half share in the Suit Properties suffer from serious and substantial error and the same is to be set aside. 10. Drawing the attention of the Court to the number of documents particularly the House Tax receipts which stand in the joint name of Arumuga Udayar, Defendant – Pethaperumal and Manickam, learned counsel for the Respondents / Plaintiffs has submitted that the defence plea of adotpion has not been proved. 10. Drawing the attention of the Court to the number of documents particularly the House Tax receipts which stand in the joint name of Arumuga Udayar, Defendant – Pethaperumal and Manickam, learned counsel for the Respondents / Plaintiffs has submitted that the defence plea of adotpion has not been proved. It is further submitted that even in Exs.A.1 and A.2 Will, Manickam is only shown to be the Son of Arumuga Udayar. Learned counsel for the Respondents / Plaintiffs has also drawn the attention of the Court to number of other documents, wherein the Defendant himself has admitted Manickam as the Son of Arumuga Udayar. Reiterating the findings of the Courts below, learned counsel for the Plaintiffs submitted that the conclusion of the Courts below are well balanced and there is no reason warranting interference. 11. "A” and "B” Schedule Properties are the properties of Arumuga Udayar. Arumuga Udayar had Two Sons - the Defendant – Pethaperumal and Manickam – Husband of the First Plaintiff and Three Daughters. Admittedly, Arumuga Udayar died intestate. It is not in dispute that Three Daughters of Arumuga Udyar do not claim any share in the Suit Properties. Denying the share of Manickam, the Defendant has mainly put forth two fold defence: i. that Manickam had gone in adoption to the Family of Manickam Udayar and Anjugathammal; ii.Manickam, having gone in adoption to the family of Manickam Udyar was ousted from the possession and enjoyment of the Suit Property. The Defendant had been in long possession and enjoyment of the Suit Houses and had perfected his title to the Suit Houses. 12. To substantiate the defence plea that Manickam had gone in adoption to the family of Manickam Udayar, reliance is placed upon Exs.A.1 and A.2 – Registered Will executed by Manickam Udayar (Dated 13.11.1972) and Anjugathammal (Dated 20.06.1973). The recitals in Exs.A.1 and A.2 falsifies the defence plea that Manickam had gone in adoption to the family of Manickam Udayar. In Exs.A.1 and A.2, Manickam had been referred only as the Son of Arumuga Udayar. The recitals in Exs.A.1 and A.2 falsifies the defence plea that Manickam had gone in adoption to the family of Manickam Udayar. In Exs.A.1 and A.2, Manickam had been referred only as the Son of Arumuga Udayar. The recital in Ex.A.1 reads as follows:- "....vd;Dila fphpiafis vd; jk;gp kfd; nfhtpe;jrhkpapd; gps;isfspy; xUtUk; vd; rk;rhuk; m";Rfj;jpd; cj;jpufphpiafis MWKf cilahh; Fkhud; khzpf;fKk; bra;antz;oaJ....” The recital in Ex.A.2 reads as follows:- "....C bcl;a{y; brhj;ij ey;ykh';Fo MWKf cilahh; Fkhud; khzpf;fKk; vd; $Pt jirf;F gpwF mile;J bfhs;sntz;oaJ....” It is made clear that Manickam was not treated as the adopted son of Manickam Udayar. Perhaps, P.W.1’s Husband - Manickam might have been the foster son of the said Manickam Udayar and Anjugathammal. But, there is nothing to show that Manickam had relinquished his right of his share in the joint family property. In appreciation of the recitals in Exs.A.1 and A.2, the Courts below have recorded concurrent findings that Manickam was not the adopted son of Manickam Udayar and Anjugathammal. That finding is based on the records and the same is to be confirmed. 13. Manickam being the Son of Arumuga Udayar is strengthened by overwhelming documentary evidence. Ex.A.4 is the Legal Heir ship Certificate issued to the Plaintiffs. In Ex.A.4-Manickam is stated to be the Son of Arumuga Udayar. Ex.A.5 is the Invitation for the performance of obsequies of Manickam, in which Late Manickam is said to be the son of Arumuga Udayar. Ex.A.6 is the Patta for S.No.115/10 of Natham, Nallamangudi Village. Ex.A.6 has been granted in the joint name of Pethaperumal and Manickam, sons of Arumuga Udayar. Absolutely there is no basis for the defence plea that Manickam had gone in adoption and that he had relinquished his right in his share in the family properties. 14. In 1960 – 1970s, the Defendant himself had written letters and sent money orders to Manickam. In all those letters and sending money orders, the Defendant had addressed Manickam as "A.MANICKAM”. Exs.A.20 and A.21 are the Letters written by the Defendant to Manickam. In the letters, Manickam has been addressed as "...M/khz[pf;fj;J[f;F....”. These letters have been addressed to "Mr.A.Manickam, 32, New Street, Nallamangundi, Nannilam....”. Exs.B.1 to B.28 are the Money Order Coupons for sending money to Manickam by the Defendant. All those Money Orders have been addressed to "A.Manickam”. The said Manickam had received the Money Orders by signing as "A.Manickam”. In the letters, Manickam has been addressed as "...M/khz[pf;fj;J[f;F....”. These letters have been addressed to "Mr.A.Manickam, 32, New Street, Nallamangundi, Nannilam....”. Exs.B.1 to B.28 are the Money Order Coupons for sending money to Manickam by the Defendant. All those Money Orders have been addressed to "A.Manickam”. The said Manickam had received the Money Orders by signing as "A.Manickam”. The conduct of the parties clearly show that Manickam very well remained as family member of Arumuga Udayar. In proper appreciation of the overwhelming evidence, the Courts below have rightly held that Manickam is the Son of Arumuga Udayar. The contention advanced by the Defendant on the basis of Exs.A.1 and A.2 – Wills executed expressing intention of the Testator that Manickam has to perform the obsequies and that Manickam was treated as the adopted son of Manickam Udayar has no force. There is no reason to reverse the concurrent findings of the Courts below on this score. 15. The main plea urged by the Defendant is that Manickam has been ousted from possession and that the Defendant had been in long possession and enjoyment of the houses. Plea of adverse possession against the co-owner must have characteristics of adequacy, continuity and exclusiveness. There must be evidence of open assertion of hostile title coupled with the exclusive possession. In the absence of evidence for assertion of hostile title and exclusive possession, there cannot be any adverse possession. Overwhelming documentary evidence has been adduced showing that Manickam was in joint possession of the Suit houses. As noted earlier, Ex.A.6-Patta for the suit property Natham S.No.115/10 had been issued in the joint name of Pethaperumal and Manickam – Sons of Arumuga Udayar. The house tax receipts stand in the joint name of Arumuga Udayar and Manickam as is clear from the following:- Exs.A.8 to A.19 .... In the name of Arumuga House Tax Receipts Udayar, Pethaperumal and Manickam Exs.B.3,B.4, B.6, .... In the name of Arumuga B.7 to B.18, B.20 Udayar, Pethaperumal and House Tax Receipts Manickam Ex.B.5 ....In the name of Pethaperumal House Tax Receipt and Manickam The Defendant being the resident of Chennai could not have been in exclusive possession. There is no evidence showing assertion of hostile title. From the above, it is amply made clear that the Suit Houses are the joint family properties and jointly enjoyed by the Brothers. 16. There is no evidence showing assertion of hostile title. From the above, it is amply made clear that the Suit Houses are the joint family properties and jointly enjoyed by the Brothers. 16. In the cross-examination, the Defendant has admitted that so far no partition was effected. He has also stated that he is not willing for partition since the suit properties are his exclusive properties. Absolutely there is no evidence substantiating the plea of adverse possession. In that view of the matter, the defence set forth by the Defendant that he has perfected title to the Suit Property by long possession is bereft of merits. 17. In proper appreciation of the evidence and materials available on record, the Court recorded the findings that the Plaintiffs are entitled to half share (¼ + ¼). In appreciation of the evidence, the defence plea set forth by the Defendant on the plea of ouster and adverse possession have been negatived. The concurrent findings of the Courts below do not suffer from any serious and substantial error, calling for interference. This Second Appeal has no merits and is bound to fail. 18. For the foregoing reasons, the Judgment and Decree dated 11.12.2000 of the Subordinate Judge, Thiruvarur made in A.S.No.27 of 2000, confirming the Judgment and Decree dated 28.04.2000 of the District Munsif, Nannilam in O.S.No.48 of 1999 is confirmed and this Second Appeal is dismissed. In view of the relationship of the parties and circumstances of the case, there is no order as to costs.