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2005 DIGILAW 155 (MAD)

Panchalai Ammal v. Vibhashanan & Others

2005-02-01

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been preferred by one Panchalai Ammal being the second plaintiff in O.S.No.464 of 1984 on the file of the District Munsif Court, Kallakurichi against the judgment and decree of the Principal Sub Court, Cuddalore in A.S.No.68 of 1992 in and by which the Sub Court, Cuddalore has allowed the said appeal and set aside the judgment and decree of the District Munsif Court, Kallakurichi. 2. The said suit was filed by the said Panchalai Ammal and his mother Muniammal against the defendants viz., Innasi, one Vibushnan respectively being the first and second defendants for the reliefs of partition and separate possession of 1/6 share along with future mesne profits in respect of the plaint schedule properties with the following allegations. The first plaintiff viz., Muniammal is the second wife of one Ramapillai and the second plaintiff viz., Panchalai Ammal is the daughter of the said Ramapillai through the first plaintiff. The plaint schedule items 1 to 4 are the ancestral properties of Ramapillai and his sons and brothers of the second plaintiff viz., Viapillai and Manipillai. The fifth item of the plait schedule properties is the property purchased from and out of income from the ancestral properties. So, the plaint schedule properties are ancestral and joint family properties of the said Viapillai and Manipillai and the plaintiffs. The said Ramapillai died in the year 1963 and so, the plaintiffs and the said Viapillai and Manipillai are entitled to get 1/3 share each and thereby after the death of Ramapillai, the plaintiffs are entitled to get 1/6 share belonging to the deceased Ramapillai. The plaintiffs, the said Viapillai and Manipillai are enjoying the suit properties. Whileso, the said Viapillai and Manipillai who are brothers of the second plaintiff and sons of the first plaintiff have sold the suit properties in favour of defendants 1 and 2 without the knowledge of the plaintiffs. So, the said sale in favour of defendants 1 and 2 is not binding upon the plaintiffs' right. Defendants 1 and 2, on the strength of their purchase, began to trespass into the suit properties in the year 1982. Therefore, the plaintiffs have filed this suit for partition of 1/6 share along with future mesne profits. 3. The said suit was resisted by the defendants with the written statement of the second defendant with the following allegations. Defendants 1 and 2, on the strength of their purchase, began to trespass into the suit properties in the year 1982. Therefore, the plaintiffs have filed this suit for partition of 1/6 share along with future mesne profits. 3. The said suit was resisted by the defendants with the written statement of the second defendant with the following allegations. The suit filed by the plaintiffs is not maintainable. The 5th item of the plaint schedule properties is not ancestral and joint family property of Ramapillai and his sons. In fact, the said 5th item was purchased by the sons of Ramapillai viz., Viapillai and Manipillai separately. After the death of Ramapillai, there was a family arrangement and in that family arrangement, items 1 to 4 of the plaint schedule properties were allotted to Viapillai and Manipillai and that a land called as Erankadu was allotted to the plaintiffs and as per that family arrangement, the parties were enjoying the suit properties separately. Thereafter, Viapillai and Manipillai partitioned the suit properties allotted to them in the family arrangement and are enjoying their respective shares separately and therefore, the plaintiffs have no right of share upon the suit properties. Since, the plaintiffs were never in common enjoyment of the suit properties and Viapillai and Manipillai alone were separately enjoying the suit properties, the suit is barred by limitation. Further, the suit, without impleading the said Viapillai and Manipillai, who are none other than the brothers of the second plaintiff and sons of the first plaintiff, is not maintainable. In fact, the second defendant has purchased half share of Manipillai upon the plaint schedule properties through a registered sale deed on 21.3.1984 and from that date, he alone is in possession and enjoyment of the purchased properties. Hence, the plaintiffs have no manner of right for partition of the plaint schedule properties and the suit is liable to be dismissed. 4. On trial, the District Munsif, Kallakurichi has examined the second plaintiff Panchalai Ammal as PW1 and the second defendant Vibushanan as DW1 and marked Ex.A1 for the plaintiffs and Exs.B1 to B5 for the defendants and then came to the conclusion that the plaintiffs are entitled to claim 1/6 share upon the plaint schedule properties along with future mesne profits and decreed the suit. 5. 5. On appeal by the second defendant Vibushanan in A.S.No.68 of 1992, the Sub Court, Cuddalore, after enquiry, has come to the conclusion that the plaintiffs cannot have possession of any share and the sale made by Viapilai and Manipillai in favour of defendants 1 and 2 is valid and it cannot be found fault by the plaintiffs and consequently, allowed the appeal and dismissed the suit. 6. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side in detail and I am able to see the following important aspects for appreciation. There is no dispute between the parties upon the fact that Ramapillai was having two wives and he was having two sons through his first wife (Solaiapillai and Muniapillai) and two sons and one daughter through his second wife Muniammal who is the first plaintiff herein viz., Viapillai, Manipillai and the second plaintiff herein. There is also no dispute upon the fact that the said Ramapillai died in the year 1963. On perusal of Ex.B1 which is a registration copy of the partition deed dated 10.9.1964, I am able to see that it is between Ramapillai's first wife's sons viz., Solaiapillai and Muniapillai and the second wife's sons viz., Viapillai, Manipillai and as per the said partition deed, A schedule properties described therein were allotted to the said first wife's sons and B schedule properties described therein were allotted to the said second wife's sons. So, it goes without saying that the properties covered under B schedule therein were allotted in common to the sons of the second wife viz., Viapillai and Manipillai. No doubt, no property appears to have been allotted for the first plaintiff or the second plaintiff and particularly, there is no reference of allotment of a land called as Erankadu to the plaintiffs. Further, it is to be noted that even as per the pleading in the plaint, no land called as Erankadu appears to have been allotted to the plaintiffs in pursuance of any family arrangement subsequently also. In such circumstances, the plaint schedule properties, as such, stand as ancestral and joint family properties of the family containing the first plaintiff being mother and the second plaintiff being the sister of Viapillai and Manipillai. 7. In such circumstances, the plaint schedule properties, as such, stand as ancestral and joint family properties of the family containing the first plaintiff being mother and the second plaintiff being the sister of Viapillai and Manipillai. 7. Moreover, even according to Ex.B2 viz., registered sale deed dated 21.3.1984, executed by Manipillai in favour of the second defendant Vibushanan, six items of properties have been sold (undivided half extent in each item). So, it goes without saying that even in the year 1984, the properties were being held in common between Viapillai and Manipillai. If really there was no right for the plaintiffs upon these properties, Ex.B2 could have included a recital as if properties are separate properties of himself and his brother Viapillai without any reference to the right of the plaintiffs or it would have mentioned about the earlier allotment of land called as Erankadu to the plaintiffs' share. In this context, it is also to be noted that the second defendant, in line with his pleading in the written statement, has not attempted or chosen to examine his vendor Manipillai or the brother of the vendor Manipillai viz., Viapillai or anybody else to show that there is a land called as Erankadu and it was allotted to the share of the plaintiffs in the family arrangement and eversince the said land called as Erankadu was being enjoyed by the plaintiffs alone separately and thereby they cannot have any manner of right upon the plaint schedule properties that too when it is denied by the second plaintiff in the evidence that there was no such family arrangement and there was no allotment of land called as Erankadu to the share of the plaintiffs. No doubt, the plaintiffs have not impleaded Viapillai and Manipillai as parties to the suit and yet, such failure itself does not mean that the plaint schedule properties exclusively belong to Manipillai and his brother Viapillai alone and the second defendant is entitled to purchase those properties without any reference to the plaintiffs that too when the plaintiffs are making an allegation that the sale in favour of the second defendant without their knowledge and consent is not valid so far it relates to their share of the plaint schedule properties. 8. 8. It is more significant to point out that the second defendant has not pleaded specifically that there is ouster of the plaintiffs by Viapillai and Manipillai and there was no partition and separate possession and enjoyment of the suit properties along with the brothers by the second plaintiff or by her mother for such a prolonged period of years from the year 1964 and thereby the possession and enjoyment of Viapillai and Manipillai has become adverse to the plaintiffs to their knowledge that too when the plaintiffs have pleaded in the plaint that they were in common enjoyment of the plaint schedule properties. So, unless and until there is specific pleading of ouster and adverse possession, it cannot be construed as if the suit is barred by limitation and the plaintiffs cannot have right of share upon the plaint schedule properties. The question of law raised in the second appeal also appears to be that without specific pleading of ouster and long and adverse possession, the Sub Court, Cuddalore cannot be justified to conclude as if the suit was barred by limitation and thereby it cannot be construed that the suit is bad for partial partition when there is no evidence to show that late Ramapillai was owning other properties also that too when there is specific recital in Ex.B1 itself as In other words, there was no other properties except the properties mentioned in Ex.B1 document for Ramapillai himself. Consequently, it goes without saying that there was no partial partition also. Taking note of all the above observed aspects, it has to be necessarily held that without valid reason and justification, the Sub Court, Cuddalore has allowed the appeal and set aside the judgment and decree of the Trial Court and that on the other hand, the plaintiffs are having right of share upon the plaint schedule properties as claimed in the plaint and it cannot be denied by the second defendant and the sale deed obtained by the second defendant cannot be binding upon the share of the plaintiffs. In all, I am of the considered view that the second appeal has to be necessarily allowed and the judgment and decree of the Sub Court, Cuddalore has to be set aside and the judgment and decree of the Trial Court viz., the District Munsif Court, Kallakurichi has to be restored. 9. In all, I am of the considered view that the second appeal has to be necessarily allowed and the judgment and decree of the Sub Court, Cuddalore has to be set aside and the judgment and decree of the Trial Court viz., the District Munsif Court, Kallakurichi has to be restored. 9. In the result, the second appeal is allowed with costs and the judgment and decree of the Sub Court, Cuddalore is set aside and the judgment and decree of the Trial Court viz., the District Munsif Court, Kallakurichi is restored.