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2011 DIGILAW 173 (MAD)

Ponniammal @ Ponnammal v. Kuppusamy Kounder

2011-01-12

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful Plaintiff is the Appellant. 2. The Plaintiff filed the suit for declaration and injunction in respect of the `A’ scheduled property and claimed the right of easement over the `B’ schedule property. 3. The case of the Plaintiff was that originally the properties were owned by one Thoppai and after his death, his three sons Nadupayyan, Oomaiyan and Velli equally divided the properties among themselves and under the said division, Nadupayyan got the property on the Southernmost side and Oomaiyan got the property in “the middle and Velli got the property on the Northernmost side. The said Oomaiyan got 1.55 acres in the middle and he sold Southern 1 acre to the Defendants and the remaining 55 cents to the Plaintiff under document dated 09.11.1979. The other co-owner Velli also sold his share 1.55 acres situate on the Northern extreme to the Plaintiff under the Sale Deed dated 09.01.1979 and the Plaintiff got title in respect of 2.10 acre and therefore, filed Suit for declaration and injunction. 4. The Defendants contested the Suit stating that the properties were owned by one Thoppai and after his death, his sons partitioned the properties and Nadupayyan, who undertook to discharge the loans, was given 2.65 acres on the Southern side and immediately North of the 2.65 acres, 1 acre was allotted to Oomaiyan and North of that property remaining 1 acre was allotted to the share of Velli and Nadupayyan became the owner of 2.65 acres and thereafter, the Defendant’s father purchased 2.65 acres from Nadupayyan and from Oomaiyan, his share of property viz., 1 acre was purchased by the Second Defendant under Sale Deed dated 07.11.1979 and even in the Sale Deed dated 07.11.1979 executed by Oomaiyan, it has been clearly mentioned that the Northern boundary is the property belonging to Velli and therefore, it has been admitted by Oomaiyan that he got only 1 acre and therefore, the Plaintiff cannot claim title to 2.10 acres and the Plaintiff can only claim title in respect of 1 acre. 5. Both the Court below accepted the case of the Defendants and dismissed the Suit holding that after the death of the father, the Defendants’ Vendors viz., Nadupayyan got 2.65 acres on the Southernmost share and North of that property, the 1 acre was allotted to Oomaiyan and further. 5. Both the Court below accepted the case of the Defendants and dismissed the Suit holding that after the death of the father, the Defendants’ Vendors viz., Nadupayyan got 2.65 acres on the Southernmost share and North of that property, the 1 acre was allotted to Oomaiyan and further. North to that, property, the remaining 1 acre was allotted to Velli and that was also proved by Ex.B.3 and hence, the Plaintiff is not entitled to the relief prayed for and the Plaintiff did not prove his possession. Aggrieved by the same, this Second Appeal is filed. 6. At the time of admission, the following substantial questions of law were framed: 1. Whether the Courts below have not erred in accepting the plea of Defendant as regards unequal partition in the absence of proof and evidence? 2. Whether the Courts below have failed to appreciate the evidence of DW1 when he had expressed his ignorance in respect of the document under Ex.B1 and Ex.B2? 3. Whether the Courts below ought not to have held that the partition among the co-owners is presumed to be equal unless evidence to the contrary is proved and established and in the present, case when the Defendant had failed to prove that Nadupaiyyan had been allotted excess share, whether the Courts below ought not to have rejected the case of the Defendant and decreed the Suit of the Plaintiff as prayed for? 4. Whether the order of the Court is not opposed to the general and elementary principles that the Division among co-owners is equal? 5. Whether the Courts below ought to have declared the rights of the Plaintiff particularly in view of the admission made by the Defendant? 6. Whether the order of the Court below is not against Section 47 of the Transfer of Property Act? 7. Whether the Courts below ought not to have held that the Plaintiff is entitled to a declaration in respect of B schedule property, particularly when the same had been granted to them under the document in Ex.A.1 and Ex.A.2? 7. Though 7 substantial questions of law were framed at the time of admission, according to me, the substantial questions of law already framed can be re-drafted as follows: 1. Whether the Courts below are right in accepting Ex.B.3 to hold that the Partition pleaded by the Defendants was proved? 2. 7. Though 7 substantial questions of law were framed at the time of admission, according to me, the substantial questions of law already framed can be re-drafted as follows: 1. Whether the Courts below are right in accepting Ex.B.3 to hold that the Partition pleaded by the Defendants was proved? 2. Whether the Courts below have committed error in not presuming that when the properties are inherited by three persons they take the properties equally? 3. Whether the Courts below committed error in accepting the plea of the Defendants as regards unequal partition in the absence of proof of evidence? 8. It is submitted by Mr. Raghavachari, learned Counsel appearing for the Appellant that it is the admitted case of both the parties that the common ancestors Thoppai was in possession on 4.65 acres and he had three sons by name Nadupayyan, Oomaiyan and Velli and after his death, his properties were inherited by three sons and therefore, the natural presumption is the three sons inherited the properties equally and when the Defendants pleaded that one of the sons viz., Nadupayyan was given 2.65 acres and the other two sons were given 1 acre each, he has to prove the same and in the absence of any proof, it cannot be contended that the Plaintiff is not entitled to declaration as prayed for. He further submitted that under Ex.A.1, the Plaintiff purchased 1.55 acres from Velli and under Ex.A.2, she purchased 55 cents situated on the Southern side of the property owned by Velli and therefore, the Plaintiff got title in respect of 2.10 acre and the same was not appreciated by the courts below. He further submitted that when the defendants pleaded unequal partition it is for them to prove the same and in the absence of any proof to that effect, the case of the Plaintiff has to be accepted. 9. On the other hand, Mr. Valliappan, learned Counsel for the Respondents submitted that the Defendants need not prove their case and the Plaintiff cannot take advantage of the defects in the pleading of the Defendants and she cannot pick up holes in the Defendants’ case and the Plaintiff has to succeed only on her pleadings and even assuming the Defendants have not proved their case the Plaintiff is not entitled to get any decree without proving her title. He further submitted that Ex.B.3 proved the case of the Defendants about the unequal partition and in Ex.B.3, the vendor Oomaiyan has specifically admitted that the Southern boundary belongs to the Second Defendant and Northern Boundary belongs to Velli, the vendor of the Plaintiff and if really, Oomaiyan was allotted 1.55 acres as contended by the Appellant and if he had sold 1 acre out of 1.55 acres, he would have got the remaining 55 cents of property either on the South or North and in that case, he would have mentioned his property as situate in the North or South and when he specifically stated in Ex.B.3, the Southern property belongs to the second Defendant and the Northern property belongs to the Plaintiff’s vendor, he admitted that he was the owner of the only 1 acre of land and that was sold under Ex.B.3 and that would probabilise the case of the Defendants regarding the unequal partition. 10. He further submitted that the Plaintiff has admitted in evidence that the three sons did not partition the properties and they were cultivating the properties in respect of their share of property approximately and he has not measured the property before filing the Suit. He, therefore, contended that Ex.B.3 would prove that Oomaiyan got 1 acre of property and that was sold to the Second Defendant and that also would probabilise the case of the Defendants that the Southern properties were owned by Nadupayyan and the same was sold under Ex.B1 to the First Defendant and therefore, the Plaintiff is not entitled to the relief prayed for. 11. He also relied upon the Judgment in Balraj Taneja and another v. Sunil Madan and another, AIR 1999 SC 3381 (1) and submitted that the Court has to satisfy about the case of the Plaintiff and the Court should not proceed to pass Judgments blindly merely because a Written Statement has not been filed by the Defendants believing the facts stated by the Plaintiff and unless this Court is satisfied about the Plaintiff’s case, the decree cannot be passed. 12. Heard the learned Counsel on either sides. 13. In this case as stated supra it is not in dispute that 4.65 acres of land was owned by Thoppai. It is also admitted that he had three sons by name Nadupayyan, Oomaiyan, and Velli. 12. Heard the learned Counsel on either sides. 13. In this case as stated supra it is not in dispute that 4.65 acres of land was owned by Thoppai. It is also admitted that he had three sons by name Nadupayyan, Oomaiyan, and Velli. The case of the Appellant/Plaintiff is that the three sons partitioned the property equally and the Southern portion of 1.55 acres was taken by Nadupayyan, middle 1.55 acres was taken by Oomaiyan and the Northern 1.55 acres was taken by Velli, Ex.A.1 and Ex.A.2 are the two Sale Deed under which the Plaintiff purchased the Southern 1.55 acres from Velli and 55 cents from Oomaiyan. 14. On the other hand, the case of the Defendants is that having regard to the fact that Nadupayyan had undertaken to discharge the loan, he was given 2.65 acres of land on the Southern side and the remaining 2 acres were equally shared by the two sons Oomaiyana and Velli and the Northern 1 acre was taken by Velli and the middle 1 acre was taken by Oomaiyan. In order to substantiate the case of the Defendants, the learned Counsel for the Defendants/Respondents relied upon Ex.B.3. No doubt, in Ex.B.3, it has been stated that the Northern boundary belonged to Velli, the vendor of the Plaintiff and the Southern boundary belonged to the Second Defendant. Ex.B.3 is dated 07.11.1979 and Ex.A.2 is dated 09.11.97. According to Ex.A.2, the said Oomaiyan sold 55 cents to the Plaintiff and while describing the 55 cents, he has mentioned that the Northern boundary is the property belonging to Velli and the Southern boundary is the property belonging to the Defendants. 15. It is seen from Ex.B.1 that 2 acres of land was sold by Nadupayyan in favour of the father of the Defendants. While describing the 2 acres of land, it was stated that the Northern boundary is the property of Velli and the Southern boundary is the property of Amirthammal. The Sale Deed was of the year 1968 and as per Ex.B.1, Velli was the owner of the Northern portion of 2 acres covered under Ex.B.1. This recital is also wrong as according to the Defendants, Oomaiyan was the owner of 1 acre immediately North of Nadupayyan. Under Ex.B.2, Sadaya Rounder purported to have purchased 65 cents from Nadupayyan. The Sale Deed was of the year 1968 and as per Ex.B.1, Velli was the owner of the Northern portion of 2 acres covered under Ex.B.1. This recital is also wrong as according to the Defendants, Oomaiyan was the owner of 1 acre immediately North of Nadupayyan. Under Ex.B.2, Sadaya Rounder purported to have purchased 65 cents from Nadupayyan. While describing the 65 cents, it has been stated that the Northern boundary is Velli’s property and the Southern boundary is the property belonging to the purchaser. The case of the defendants was that 2.65 acres was allotted to the share of Nadupayyan and he sold the same under Ex.B.1 and Ex.B.2 to the father of the Defendants. While selling 65 cents under Ex.B.2, the Northern boundary was stated to be the property owned by Velli. Further under Ex.B.1, the Northern boundary was stated to be the property belonging to Velli and South of that property was purchased by the purchaser. Ex.B1 was of the year 1968. Even according to Defendants, the North of the property of Nadupayyan belongs to Oomaiyan and Velli owned property further North. Therefore, under Ex.B.2 dated 23.12.1974, when the Defendant’s father purchased 65 cents the Northern property cannot be the property belonging to Velli. I am pointing out this to highlight that one cannot confer title to a property on the basis of the boundary recitals. Therefore, merely because under Ex.B.3 it has been stated that the Northern property belongs to Velli and the Southern property belongs to the Defendants one cannot presume that Oomaiyan, the vendor under Ex.B.3 possessed only one acre of property. As stated supra, when the three sons inherited the property, the normal presumption is then inherited property equally and when any one of the sons pleaded that one son was given more extent than the others it is for him to prove. Unfortunately, both the Courts below relied upon Ex.B.3 and held that the Defendants have proved the unequal partition and therefore, the Plaintiff is not entitled to the relief as prayed for. 16. It is contended by the learned Counsel for the Respondents that though the presumption can be raised in respect of the inheritance, the same presumption cannot be raised in respect of the partition. 16. It is contended by the learned Counsel for the Respondents that though the presumption can be raised in respect of the inheritance, the same presumption cannot be raised in respect of the partition. According to me, when the sons inherited the property they must have inherited the property equally and therefore, they must be in enjoyment of the property in equal shares. When one of the sons pleaded that he was allotted more extent than the others, the burden is on him to prove and in this case, the Defendants contended that their vendors were allotted more extent on the ground that he had undertaken to discharge loans and that was not proved by the Defendants. Therefore, having regard the presumption that all the sons inherited the property equally, I hold that Nadupayyan, Oomaiyan and Velli, equally got 1.55 acres and Velli sold 1.55 acres to the Plaintiff under Ex.A.1 and Oomaiyan sold 55 cents under Ex.A.2 to the Plaintiff and thus, the Plaintiff got title in respect of 2.10 acres. The Courts below without appreciating the same wrongly placed the burden on the Plaintiff and dismissed the suit. Hence, the Judgments and Decrees of the Courts below erred in holding that the Plaintiff is not entitled to decree and the Judgments and Decrees of the courts below are set aside and the substantial questions of law are answered in favour of the Appellant. The courts below committed serious error in accepting the plea of the Defendants as regards unequal partition in the absence of any proof by the defendants and the Courts below ought to have presumed that the three sons equally inherited the property and the Plaintiff got 2.10 acres of land under Ex.A.1 and Ex.A.2. Hence, the Judgments and Decrees of the Courts below are set aside and the Appeal is allowed partly in respect of the title of the Appellant/Plaintiff insofar as `A’ schedule property alone is concerned. As regards, the other relief of easement right, there is no proof adduced by the Plaintiff and hence, the Plaintiff is not entitled to the relief of easement. In the result, this Second Appeal is partly allowed. No costs. Civil Miscellaneous Petitions are filed to condone the delay, set aside the abatement and to bring on record the Legal Representatives of the deceased Second Respondent. In the result, this Second Appeal is partly allowed. No costs. Civil Miscellaneous Petitions are filed to condone the delay, set aside the abatement and to bring on record the Legal Representatives of the deceased Second Respondent. I am satisfied with the reasons state in the Affidavit and the Civil Miscellaneous Petition are allowed.