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2006 DIGILAW 2554 (MAD)

Kunchithapatham v. Dhanaplan & Others

2006-09-26

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: This Appeal has been fiiled against the Judgment and Decree dated 28.02.1992, passed in O.S.No.21 of 1990 on the file of the Subordinate Court, Chidambaram.) This appeal has been preferred against the decree and judgment passed in O.S.No.21 of 1990 on the file of the Subordinate Court, Chidambaram. 2. The brief facts of the case of the plaintiffs are as follows:- 2(a) The suit is filed for partition of the plaintiffs’ ¾th share in the suit property. The suit property is an house situated at South Vaaniya Street, Chidambaram. The suit property originally belonged to one Rathinam Padayatchi. His mother Parasakthi Ammal executed a settlement deed in respect of the suit property in favour of Rathinam Padayatchi on 15.06.1949. In pursuance of the settlement deed the said Rathinam Padayatchi was in possession of the property. The said Rathinam Padayatchi died in the year 1961 leaving the plaintiffs and first defendant as his heirs. 2(b) The first plaintiff and first defendant are the sons of the said Rathinam Padayatchi. The second plaintiff is the wife and the third plaintiff is the daughter of said Rathinam Padayatchi. As per the Hindu Succession Act, the plaintiffs 1 to 3 and the first defendant are each entitled to ¼th share in the suit property. The plaintiffs together are entitled to ¾th share in the suit property. Remaining 1/4th share belongs to the first defendant. After the death of the said Rathinam Padayatchi, the plaintiffs and the first defendant are in joint possession of the plaint schedule property upto the year 1985. Plaintiffs and Defendants are living separately. There is misunderstanding arose between the plaintiffs and the first defendant. In the month of April 1988, the plaintiffs demanded the first defendant to partition the suit property and to give a separate possession of the plaintiffs’ share in the suit property. On 15.08.1988, the plaintiffs issued a notice. Inspite of the notice, the first defendant has not come forward for partition of the suit property. Hence, the plaintiffs have filed the suit. 2(c) The defendants 2 to 5 are residing in the suit property. The defendants 2, 3 and 5 are tenants under the first defendant and fourth defendant is the tenant under the first plaintiff. Inspite of the notice, the first defendant has not come forward for partition of the suit property. Hence, the plaintiffs have filed the suit. 2(c) The defendants 2 to 5 are residing in the suit property. The defendants 2, 3 and 5 are tenants under the first defendant and fourth defendant is the tenant under the first plaintiff. The tenancy right of the defendants 2, 3 and 5 will not in any way obstruct the rights of the plaintiffs, but to avoid any complication the plaintiffs have impleaded defendants 2 to 5 also in the suit as formal parties. 3. The first defendant in his written statement has contended as follows: The plaint schedule property belonged to the joint family of Rathinam Padatchi and his two sons. The plaint schedule property was mortgaged by Rathinam Padatchi and his two sons in the year 1956 and in 1959 with Co-operative Urban Bank. In the year 1962 the said Rathinam Padayatchi was not well. Hence, he has instructed the first plaintiff and first defendant to partition the suit property among themselves and to enjoy their respective shares in the suit property peacefully. The said partition was not reduced to writing. On 20.12.1964, the first plaintiff and the first defendant have mortgaged their respective shares in the suit property with Urban Bank in order to raise funds to repair the building. After 1965 the southern portion of the suit property was enjoyed by the first defendant and the northern portion was enjoyed by the first plaintiff. A three feet passage was left on the eastern side of the suit property house. The said passage was being used by the first plaintiffs, the tenants and the first defendant to get ingress and egress to their respective shares. There are five tenants in the suit property. The rental portion is facing east. The tenants are being impleaded as Defendants 2 to 5. The first defendant is residing in two of the huts and also receiving rent from the tenants. The plaintiffs' house is situated adjacent to the said huts. The remaining tenants are paying rent to the first plaintiff. The defendants are in possession of the property for the past twenty four years. The first plaintiff's mother and son are residing with the plaintiffs. The first defendant is another son. The first plaintiff has married the sister's daughter. The plaintiffs' house is situated adjacent to the said huts. The remaining tenants are paying rent to the first plaintiff. The defendants are in possession of the property for the past twenty four years. The first plaintiff's mother and son are residing with the plaintiffs. The first defendant is another son. The first plaintiff has married the sister's daughter. Hence, the mother had decided to reside with the first plaintiff. The first defendant has spent so far Rs.10,000/- to carry out the repair work in the suit building. The said portion has been allotted to the first defendant during the life time of their father. The first defendant is paying house tax to the building and he has also obtained electricity connection. Hence, there is no necessity to partition the property. Already the suit property has been partitioned into two halves. In case of partition, the portion in which the first defendant is residing may be allotted to his share. The first defendant is residing in a portion measuring 90 feet and 15 feet and the suit portion is situated on the north of the property allotted to the first plaintiff. The defendant is also entitled to use the common passage with the width of three feet. The first defendant had prescribed titled to the suit property by his uninterrupted continuous possession of 24 years. The defendants 2 to 5 remain exparte. 4. After going through the pleadings of both the parties, the learned trial judge has framed six issues and three additional issues and on the basis of the documentary and oral evidence let in by both the parties has come to a conclusion that the plaintiffs are entitled to 3/4th share in the plaint schedule property and accordingly decreed the suit passing a preliminary decree for partition of the plaintiffs' 3/4th share with costs. Aggrieved by the findings of the learned trial Judge, the first defendant has filed this appeal. 5. Now the points for determination in this appeal are as follows: i) Whether the suit property is a joint family property or self occurred property of Rathinam Padayatchi. ii) Whether the suit for partition is maintainable in lieu of the oral partition already entered into between the parties and thereafter are in separate possession of their respective shares allotted to them in the said oral partition. 6. ii) Whether the suit for partition is maintainable in lieu of the oral partition already entered into between the parties and thereafter are in separate possession of their respective shares allotted to them in the said oral partition. 6. The Point (i):- The plaintiffs claimed that Rathinam Padayatchi, the father of the first plaintiff and the first Defendant, was the owner of the plaint schedule property and that the said Rathinam Padayatchi derived right, title and possession to the suit property through Ex.A.1-settlement deed dated 15.6.1949 executed by his mother Parasakthi Ammal. The said Rathinam Padayatchi died leaving two sons, viz, the first plaintiff and the first defendant. The second plaintiff is the wife of the said Rathinam Padayatchi and third plaintiff is the daughter of Rathinam Padayatchi. So, the plaintiffs claim that under Ex.A.1-settlement deed Rathinam Padayatchi became the owner of the plaint schedule property and since he died intestate, the plaint schedule property devolved in equal shares on plaintiffs 1 to 3 and the first defendant. Hence, the plaintiffs claimed 3/4th share in the suit property. 7. The learned counsel appearing for the appellant would contend that the suit property is a joint family property and not a self acquired property. But under Ex.A.1-settlement deed the suit property has been settled in favour of Rathinam Padayatchi by his mother. So, it cannot be said that the suit property is a joint family property. After execution of Ex.A.1 in favour of Rathinam Padayatchi by his mother, Rathinam Padayatchi became the owner of the said property and the plaint schedule property is only a self acquired property of Rathinam Padayatchi. The learned counsel would further contend that under Ex.B.9 in the year 1953, Rathinam Padayatchi along with his minor children viz, first defendant-Kunchithapatham and first plaintiff-Dhanapalan, had executed mortgage deed and hence, the learned counsel would contend that the property shall be construed only as a joint family property. Ex.B.10 to B.15 also stand in the name of the two sons and their father Rathinam Padayatchi. But, Ex.A.1 stands only in the name of Rathinam Padayatchi and not in the name of the first plaintiff and the first defendant. The mere fact that the father had included his minor sons in Ex.B.9 to B.15 will not derive as to a conclusion that the suit property is a joint family property. But, Ex.A.1 stands only in the name of Rathinam Padayatchi and not in the name of the first plaintiff and the first defendant. The mere fact that the father had included his minor sons in Ex.B.9 to B.15 will not derive as to a conclusion that the suit property is a joint family property. Under Ex.A.1-settlement deed the property has been settled only in favour of Rathinam Padayatchi and hence undoubtedly the conclusion to be arrived at is that the suit property is a self occurred property of Rathinam Padayatchi. The first point is answered accordingly. 8. The Point (ii):- In the written statement the first defendant would contend that there was already an oral partition entered into between Rathinam Padayatchi and his sons viz, the first plaintiff and the first defendant and that as per the oral partition the shares have been allotted in the plaint schedule property house and they are in possession of their respective shares in accordance with the oral partition. But, there is no revenue records produced by the appellant to show that in pursuance of the oral partition mutation have been effected in the revenue records. Not even a land tax receipt was produced to show that the first defendant/appellant herein is in exclusive possession of his share in the plaint schedule property. D.W.1 in his cross-examination would admit that municipal tax has been levied for the plaint schedule house in entirety. If the oral partition pleaded by the first defendant is true, then the municipal tax to the house would have been levied separately in the name of the first plaintiff and the first defendant. The first defendant/appellant would contend that there are tenants in the suit property house and that he is recovering the rents from them. But no tenant has been examined on the side of the first defendant to show that the tenancy in respect of a portion of the suit property house has been created by the first defendant and that the tenants are paying rent to the first defendant. Further, the appellant/first defendant in his written statement would raise a plea that he had prescribed title to the suit property by way of adverse possession. But being a co-sharer of the property the first defendant can only plead and prove ouster against the other co-sharers. Further, the appellant/first defendant in his written statement would raise a plea that he had prescribed title to the suit property by way of adverse possession. But being a co-sharer of the property the first defendant can only plead and prove ouster against the other co-sharers. But in this case, there is absolutely no evidence on record to show that the first defendant was in possession of the property against the interest of the first plaintiff and hostile to the interest of the plaintiffs. Under such circumstances, the trial Court has come to a correct conclusion that the plaintiffs are entitled to 3/4th share in the plaint schedule property. The finding of the learned trial Court requires no interference from this Court. The second point is answered accordingly. 9. In the result, this appeal is dismissed confirming the judgment and decree passed in O.S.No.21 of 1990 on the file of the Sub-Court, Chidambaram. Considering the close relationship of the parties, there is no order as to costs.