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2008 DIGILAW 3292 (MAD)

Kunnumal Madhavi & Others v. Karthiyayini

2008-09-08

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- Today, the learned counsel appearing for the appellants is present and argued the appeal, which was posted under the caption dismissal. 2. This appeal has been directed against the decree and judgment in O.S.No.36 of 1998 on the file of the Court of Subordinate Judge, Mahe. .3. The averments in the plaint relevant for the purpose of deciding this appeal are as follows: The plaint schedule property originally belonged to Koodathil Kalliadan Lakshmi Amma as per the document No.118/1954 of Sub Registrar Office, Mahe. Thereafter the plaint schedule property was gifted to her son, Koodathil Kalliadan Damodharan as per the document No.172/1969 of Sub Registrar Office, Mahe. Subsequently, the plaint schedule property was assigned to Melathoor Nanu, the father-in-law of the plaintiff, husband of the first defendant and father of defendants 2 to 5 as per the document No.25/1971 of Sub Registrar Office, Mahe. In the life time of the said Nanu, he acquired some other properties also. He married one Janu as per the customary rites prevailed their community. The husband of the plaintiff was born in that wedlock. After the death of Janu, he married the first defendant and the defendants 2 to 5 born in that wedlock. After the death of the said Nanu, a partition took place among legal heirs of him under the document No.108/1983 of Sub Registrar Office, Mahe. As per the said partition, the plaint schedule property was allotted to the share of the defendants and husband of the plaintiff with their separate possession and enjoyment. The said Padmanabhan married the plaintiff on 19. 1992 as per the customary rites prevailed in their community from the house of the plaintiff. Thereafter, they lived together as husband and wife. There is no issues in the said wedlock. The said Padmanabhan died on 11. 1996. After the death of the said Padmanabhan, the plaintiff and defendants are jointly enjoying and possessing the plaint schedule property. The plaint schedule property contains a house and well. The plaintiff is not willing to enjoy and possess the plaint schedule property jointly with the defendants. As the plaintiff wanted to divide the property and to keep separate possession, a notice was issued to the first defendant and others on 3. 1997 demanding partition. On receipt of the said notice, the first defendant sent a reply dated 13. 1997. The plaintiff is not willing to enjoy and possess the plaint schedule property jointly with the defendants. As the plaintiff wanted to divide the property and to keep separate possession, a notice was issued to the first defendant and others on 3. 1997 demanding partition. On receipt of the said notice, the first defendant sent a reply dated 13. 1997. In the said reply notice, she admitted the right of the plaintiff, but denies the extent of the share of the plaintiff. Hence the suit for partition of plaintiffs 1/6th share in the plaint schedule property. .4. Defendants 1 to 5 have filed a joint written statement contending as follows: The plaint schedule property originally belonged to Lakshmi Amma as per document No.118/1954 of Sub Registrar Office, Mahe. Thereafter the property was gifted to Damodharan and Damodharan in turn assigned the same to Melathur nanu, husband of the first defendant and father of defendants 2 to 5. Padmanabhan was born to late Nanu in his first wife Janu. Since Janu died Nanu married first defendant and in the wedlock defendants 2 to 5 were born. There was a partition in 1983 between the defendants and Padmanabhan, s/o Nanu. The said partition deed was executed by Padmanabhan, through a Muktiyar. Padmanabhan married the plaintiff on 19. 1992 as per family custom. It is not true to say that Padmanabhan and the plaintiff lived together for long time. Because of difference of opinion, the plaintiff was always residing in her house at Chokli. The fact in reality was that Padmanabhan was doing Tea Business at the time of his marriagte in Andra Pradesh. He used to visit his native place only on rare occasion. Due to difference of opinion with the plaintiff, he left the place and permanently decided to reside in Andhra Pradesh. The statement in the plaint that Padmanabhan died on 11. 1996 is absolutely false. Padmanabhan is now alive at Andhra Pradesh and he is reluctant to come to the native place since he is having no link with the plaintiff. Padmanabhan was desirous to divorce the plaintiff and steps also was taken for the same. Due to some pressure, the legal proceedings were not completed. Since Padmanabhan is alive, there is no question of partition arises. Only to grab at the property illegally, the plaintiff has come forward with this suit. Padmanabhan was desirous to divorce the plaintiff and steps also was taken for the same. Due to some pressure, the legal proceedings were not completed. Since Padmanabhan is alive, there is no question of partition arises. Only to grab at the property illegally, the plaintiff has come forward with this suit. Padmanabhan used to contact the defendants over phone. If at all it is true that Padmanabhan is dead, the plaintiff is not entitled to any share in the plaint schedule property. Hence the suit is liable to be dismissed. 5. On the above pleadings, the learned trial Judge has framed six issues for trail. Before the trial Court, the plaintiff has examined herself as P.W.1 and exhibited Exs A1 to A3. The second defendant was examined as D.W1 and no exhibits were marked on the side of the defendants. After meticulously going through both oral and documentary evidence ,the learned trial Judge has come to a conclusion that the plaintiff is entitled to 1/6th share in the plaint schedule property and had passed a preliminary decree for partition of plaintiffs 1/6th share and has relegated the question of mesne profits to a separate proceedings. Aggrieved by the findings of the learned trial Judge, the defendants have preferred this appeal. 6. The point for determination in this appeal are i) Whether Padmanabhan, the husband of the plaintiff was alive on the date of filing of the suit and if so, the suit filed by the plaintiff for partition of 1/6th share as the wife of the above said Padmanabhan is maintainable, while her husband Padmanaban alive? ii) Whether the decree and Judgment in O.S.No.36 of 1998 on the file of the Court of Subordinate Judge, Mahe is liable to be set aside for the reasons stated in the memorandum of the appeal? .7. Point No.1:- .Even though the defendants in their joint written statement would take a stand that the plaintiffs husband Padmanabhan was born to the father-in-law of the plaintiff Nanu through his first wife, is dead on the date of filing of the suit, the said stand is diametrically opposite to the stand, they took in their reply notice Ex A3. Point No.1:- .Even though the defendants in their joint written statement would take a stand that the plaintiffs husband Padmanabhan was born to the father-in-law of the plaintiff Nanu through his first wife, is dead on the date of filing of the suit, the said stand is diametrically opposite to the stand, they took in their reply notice Ex A3. In Ex A3, the defendants would admit that the first defendant is the second wife of the above said Nanu and that defendants 2 to 5 are the children born to Nanu through his second wife of Nanu. In categorical terms, the defendants would admit that the plaintiffs husband Padmanabhan is dead. As correctly observed by the learned trial Judge only to grab at the plaint schedule property without giving due share to the plaintiff who is the widow of Padmanabhan who was none other than the son born to Nanu through is first wife, the defendants took a different stand while filing their written statement contending that Padmanabhan was not alive at the time of filing of the suit which is quite contrary to the stand taken by them in their written statement. The defendants would further contend that Padmanabhan was conducting a tea shop at Andhra Pradesh and had taken steps to divorce the plaintiff. The plaintiff while deposing before the Court as P.W.1 would admit in the cross examination that her late husband Padmanabhan had presented a petition before Subordinate Court, Mahe for divorce but the matter was settled out side the Court in the year 1995 itself. There is absolutely no material placed before the Court to show that the said Padmanabhan had divorced the plaintiff. It is pertinent to note that the second defendant, the second wife of Nanu had not chosen to appear before the Court to swear that Padmanabhan is dead even at the time of filing of the suit by the plaintiff. The second defendant has examined herself as D.W.1 who would depose that even in 1997, Padmanabhan had contacted her over phone from Andhra Pradesh. If it is so, nothing prevented the defendants from producing the said Padmanabhan in the Court to prove their case that the said Padmanabhan is alive. The second defendant has examined herself as D.W.1 who would depose that even in 1997, Padmanabhan had contacted her over phone from Andhra Pradesh. If it is so, nothing prevented the defendants from producing the said Padmanabhan in the Court to prove their case that the said Padmanabhan is alive. Under such circumstances, as the wife of Padmanabhan the plaintiff is entitled to 1/6th share in the plaint schedule property, which is admittedly allotted to her father-in-law Nanu under Ex A1 partition deed. Having admitted in Ex A3 that the said Padmanabhan is dead, it is not open to the defendants to raise a contention in the written statement that the said Padmanabhan is dead. Hence I hold on point No.1 that Padmanabhan is not alive on the date of filing of the suit. Point No.1 is answered accordingly. .8. Point No.2: .In view of my findings and discussions in the earlier paragraph, I hold on point No.2 that the decree and Judgment in O.S.No.36 of 1998 on the file of the Court of Subordinate Judge, Mahe need not be set aside for the reasons stated in the memorandum of appeal. 9. In fine, this appeal is dismissed confirming the decree and Judgment of the trial Court in O.S.No.36 of 1998 on the file of the Court of Subordinate Judge, Mahe. No costs.