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2012 DIGILAW 2679 (MAD)

Mary Jecintha v. Joseph Mary

2012-06-27

S.PALANIVELU

body2012
Judgment :- 1. The appeal is preferred against the judgment and decree of the learned II Additional Subordinate Judge, Villupuram made in O.S.No.24 of 1998 dated 27.02.2003. 2. The following are the allegations in short available in the plaint:- The suit property belonged to one Periyanayagam, who died intestate on 9.2.1984. His legal representatives are his wife, the first defendant , his daughters namely, the plaintiff and defendants 2 to 4 and 3 sons namely, defendants 5 to 7. The schedule property situate at villupuram,purchased by periyanayagam under the registered Sale deed dated 21.1.1976. After the death of father, the plaintiff and the defendants 1 to 7 (legal heirs) are each entitled to 1/8th share in the schedule property as they are Christians. The suit property is managed by the 5th defendant who is residing at Villupuram and the mother is living with the 7th defendant at Mugaioor. The plaintiff had been insisting the 5th defendant to effect an amicable division of property by meats and bounds and allot her legitimate 1/8th share in the schedule mentioned properties, but the 5th defendant with ulterior motive had beed dodging to effect the division of the properties under one pretext or other. The plaintiff learns that the 5th defendant is making arrangements to alienate the property colluded with 1,6 and 7th defendants to the 8th defendant and hence the plaintiff is coming forward with this suit for partition and separate possession of her 1/8th share in the suit property and for rendition of accounts. 3. The plaintiff learns that the 5th defendant is making arrangements to alienate the property colluded with 1,6 and 7th defendants to the 8th defendant and hence the plaintiff is coming forward with this suit for partition and separate possession of her 1/8th share in the suit property and for rendition of accounts. 3. In the written statement filed by the 2nd defendant it is averred as under: 3.(a) This defendant denies the allegation that after the death of her father the plaintiff and the defendants 1 to 4 are having 1/8th share each in suit property, that after the death of the late Perianayagam, the 5th defendant was looking after the business of the bus and the suit property, that in the presence of His Eminence, D.Simon Cardinal Lourdusamy, the paternal uncle of this defendant on the 9th day of Febuary 1995 a family arrangement was entered into by the defendant Nos: 1,5,6 and 7 whereby the earlier agreement dated 21-8-1985 which also took place in his presence was confirmed and the suit property was acknowledged to be the absolute property of the 5th defendant and the defendants 1,6 and 7 admitted and accepted the right and title of the 5th defendant over the suit property and that the plaintiff has no cause of action as she has no share in the suit property. 3.(b) Even during the life time of late Perianayagam, he wanted the suit property to be enjoyed by the 5th defendant and the 7th defendant to take the bus service, rice mill, residential house and a vacant land at Mugaiyur absolutely after his life time, that in deference to the wishes of late Periyanayagam, the family members viz., the plaintiff and defendants 1 to 4, 6 and 7 in the presence of His Eminence Simon Cardinal Lourdusamy and Rev.Fr.D.S Amalorpavadoss on the Christmas day of 1984, orally relinquished their respective rights in the suit property in favour of 5th defendant and in respect of the bus business and other properties relinquished their respective rights in favour of 7th defendant and that the daughters were already provided and the other son was in the Seminary at the time and therefore the plaintiff and the defendants 1 to 4 and 6 did not claim any share or right in the properties of the family. 3.(c) In conformity with the earlier arrangement on 21-8-1985, the plaintiff, the defendants 1 to 4 and 6 and 7 gave consent letter for transferring the liscense of the lodge which was run in the suit property in favour of the 5th defendant, that from 21-8-1985, the 5th defendant is enjoying the suit property as his absolute property and neither the plaintiff nor the defendants 1 to 4, 6 and 7 claimed any right of share in the suit property, that, the plaintiff and the defendants 1 to 4, 6 and 7 accepted and admitted the 5th defendant’s right, title over the suit property, that the Bus business, Rice Mill, house and vacant land at Mugaiyur, though was in the name of the 1st defendant, they were the properties of late Perianayagam, since, late Perianayagam was a Government servant, he could not purchase immovable properties without getting the permission from the authorities and that the 1st defendant, at no point of time claimed any right over the same. 3.(d) As per the understanding, the 7th defendant got those properties that, the 3rd defendant has also accepted the oral relinquishment of the shares by the sisters and brothers in favour of the 5th defendant and has sent a letter dated 02-05-2002 to this defendant and that would also confirm the title of the 5th defendant over the suit property and that the suit property is managed by the 5th defendant and that is in pursuance of the oral relinquishment and understanding as referred to above. 4. The following are the contents contained in the written statement filed by the 5th defendant:- 4.(a) The plaintiff is not entitled to the relief prayed for and the plaint is to be dismissed in limine, that the plaint schedule properties were purchased by his father in the name of the 1st defendant herein, as this defendant’s father was a Government Servant and he could not purchase immovable property without getting permission from the authorities, that his father was also the owner of a bus bearing No. TN-31-Z-3636 and the registration for that bus also was in the name of the 1st defendant for the reasons stated above, that he also owned a rice mill, that after his father’s death as the eldest son, he was looking after the business of the bus and also the plaint schedule property. This defendant states that in the plaint schedule property the father was running a lodge by the name “Annal Lodge” and after the death of the father the plaintiff/defendant1 to 4,6 and 7 gave consent and a “no objection” letter to the Commissioner of Villupuram Municipality on 21.8.1985 for transferring the licence of the lodge in the name of the defendant, and that the plaint schedule property is enjoyed by him in his own individual capacity as an absolute owner to the knowledge of the plaintiff and defendants 1 to 4, 6 and 7 since August 1985 and therefore this defendant has perfected title to the plaint schedule property and the plaintiff and other defendants have no claim over the same. 4.(b) In the first week of February 1995 in the presence of the Most Rev. Cardinal Lourdhusamy, the 1st defendant this defendant and defendants 6 and 7 orally divided the properties belonging to their father in furtherance of an earlier agreement that took place on 21-08-1985 which was also in the presence of the most Rev. Cardinal Loourdhusamy, that in conformity with the agreement, the 1st defendant, defendants 6 and 7 accepted and admitted the rights and title of this defendant over the plaint schedule property, that as per the said agreement the permit of the bus and which was in the name of the 1st defendant was agreed to be transferred to the 7th defendant and that the plaintiff and defendants 2,3 and 4 had already relinquished their rights, if any, in the plaint schedule property and other properties which were owned by their father and therefore the defendants 2, 3, 4 and the plaintiff did not object to the agreement that took place on the 1st week of February 1995 in the presence of the most Rev. Cardinal Lourdhusamy and they are also aware of the terms of the agreement. Cardinal Lourdhusamy and they are also aware of the terms of the agreement. 4.(c) In pursuance of the oral understandings that took place in the 1st week of February 1995, the defendants 6 and 7 and the 1st defendant in recognition of this defendant’s right to the plaint schedule property entered into a partition dated 9.2.1995 with this defendant under which this defendant’s right and title to the plaint schedule property was confirmed and he was recognized as an absolute owner of the plaint schedule property and therefore, he denies the allegations that after the death of Periyanayagam the property devolved upon the plaintiff and defendants 1 to7 and the plaintiff and defendants 1 to 7 are each entitled to 1/8th share in the plaint schedule property and that it is also denied that this defendant managing the plaint schedule property and was giving the plaintiff a paltry sum towards her share in the property and was dodging the plaintiff from effecting division of property under one pretext or another. 4.(d) This defendant is enjoying the property ever since 21.8.1985 in his individual rights as an absolute owner and he had not given any amount to the plaintiff or to other defendants representing any share in the plaint schedule property as alleged by the plaintiff and as this defendant is enjoying the plaint schedule property absolutely and the plaintiff and defendants are aware of the same, the question of effecting division does not arise, that the plaintiff and defendants 1,2,4,6 and 7 are estopped by their conduct in claiming any share in the plaint schedule property, that the suit is also bad for misjoinder of parties and also bad for partial partition and that even while his father was alive, a house property was purchased in the name of the plaintiff and the entire cost of the house was borne by his father and therefore, the plaintiff has no right to claim any share in the suit property, that the plaintiff is not in joint possession of the plaint schedule property along with this defendant and it has not been alleged in the plaint and hence, the suit may be dismissed with cost. 5. 5. In the written statement by the 8th defendant the following are alleged: The defendant No.5 representing that the suit property belonged to him absolutely had entered into a valid deed of agreement of sale with this defendant society on 25-8-96 and he had received a sum of Rs,15,00,000/-advance on the same date, that subsequently, there was change of circumstances, the 5th defendant had failed to honour the agreement, that , though he had first attended the office of this defendant and offered to settle the matter amicabily, later he had deliberately avoided with a view to cheat the amounts and enrich himself unlawfully and hence this defendant society have filed the suit in 270 of 1999 on the file of Principle Sub-Judge at Villuppuram, which is still pending, that the 5th defendant had made a representation earlier to sell the suit item to this defendant to the effect that the suit property belongs to him absolutely but now, the present suit is laid for the partition of the suit property, that the 5th defendant had failed to return the amounts received by him, that in total, this defendant strongly apprehends that the very suit would have been a camouflage and tool to delay and deny the claim of the defendant, that this defendant specifically denies the right of the plaintiff in the suit and the plaintiff is put to strict proof of the allegations in the plaint, that without making any provision to discharge the suit amount due to this defendant, the property cannot be divided in any manner and that the court may be pleased to dismiss the suit with costs and thus render justice. 6. In the reply statement filed by the plaintiff it is averred as follows: 6.(a) The allegations that the plaint schedule properties were purchased by the father in the name of the first defendant as the father was a Government Servant and that the Bus bearing Registration Number TN 31/Z-3636 was also in the name of the first defendant are false, that as admitted by the defendant all the properties are the properties of late Perianayagam, that the plaintiff has not given any consent or no objection letter to the Commissioner, Villupuram municipality and allegation that the defendants 1 to 4, 6 and 7 gave a consent letter for transfer of the liscence to the name of the 5th defendant is equally false. that the 5th defendant is enjoying the property is absolute owner to the knowledge of the plaintiff and that he had perfected a title are all false, that it is denied that the 1st defendant and defendants 5,6,7 had orally divided the properties in the presence of His Eminence Cardinal Lourusamy in the first week of February 1995, that the permit of the bus was transferred to the name of the 7th defendant, and that the plaintiff and the defendant 2 to 4 had relinquished their rights are all false. 6.(b) The alleged agreement was made on the first week of February 1995 is false and fabricated document by the 5th defendant and it will not be binding on the plaintiff, that the alleged partition dated 9.2.95 is not true and valid and it is not binding on the plaintiff, that the 5th defendant wants to knock away the entire property without giving the due share of the plaintiff, that the allegation that the 5th defendant is enjoying the property ever since 21.8.85 is absolute owner is false and it has been invented for the purpose of sustaining the false case , that his enjoyment is only in behalf of the entire family and not in the individual capacity and that, the 5th defendant is bound to agree for the division of all the properties and therer is no question on any estoppel. 6.(c) The allegations that suit is bad for mis-joinder and bad for partial partition are very vague. The plaintiff is in joint possession of the entire suit property and the allegations to the contra are false, that, a house was purchased in the name of the plaintiff by the father and so plaintiff has no right to claim for share in the suit property is false and unsustainable and that the marriage of the sister Mary Celin was celebrated in the year 1994 and only thereafter there was a change in the attitude of the 5th defendant. 7. After scrutiny of the pleadings and evidence on record, the learned II Additional Sub-Judge, Villupuram has dismissed the suit without cost observing that the plaintiff is not entitled for relief of partition. Hence, she is before this Court with this appeal. Following are the points which have arisen for consideration: 1. Whether the partitions pleaded by 2nd and 5th defendants are binding upon the plaintiff? 2. Hence, she is before this Court with this appeal. Following are the points which have arisen for consideration: 1. Whether the partitions pleaded by 2nd and 5th defendants are binding upon the plaintiff? 2. Whether the 5th defendant has perfected title by adverse possession? 3. Whether the suit is bad for partial partition? 4. Whether the suit is bad for misjoinder of parties? 5. Whether the Court fee paid on the plaint is correct? 6. Whether the plaintiff could be made liable for the contract between 5th and 8th defendants? 7. To what relief are the parties entitled to? Point No.1 8. The suit property is a building known as "Annai Lodge" situate in Pandit Jawaharlal Nehru Road at Villupuram. One Perianayagam purchased the property by means of original of Ex.A.1 on 21.1.1976 from one Sherifa Begum. His wife is first defendant. The plaintiff and 2 to 7 defendants are their daughters and sons. 8th defendant is a private body which entered into an agreement for sale with the 5th defendant for the purchase of the suit property on payment of a sum of Rs.15 lakhs. 9. It is the case of the plaintiff that Perianayagam died 9.12.1984 and after his death, his heirs, viz., the plaintiff and defendants 1 to 7 have got undivided 1/8th share in the suit property and her 1/8th share has to be divided and possession be delivered to her. On the contrary, it is the case of the 5th defendant that by means of oral relinquishment by all the heirs of Perianayagam in favour of 5th defendant, he has become the absolute owner of the suit property, that the daughters were sufficiently provided and that she is not entitled for partition. 10. The 5th defendant has pressed into service Ex.B.26, an unregistered agreement for partition between the defendants 1, 5, 6 and 7 dated 9.2.1995 and registered partition deed dated 9.2.1995 Ex.B.27 entered into between 5th, 6th and 7th defendants. Simon Cardinal Lourdusamy is the brother of Perianayagam who is holding an high position known as Cardinalate in city of Vatican, Rome. He was ordained as a Priest in 1951 and consecrated as a Bishop in 1962 and was lifted to the position of Cardinalate in 1985. 11. Simon Cardinal Lourdusamy is the brother of Perianayagam who is holding an high position known as Cardinalate in city of Vatican, Rome. He was ordained as a Priest in 1951 and consecrated as a Bishop in 1962 and was lifted to the position of Cardinalate in 1985. 11. When he came down to India on the demise of his brother Perianayagam, as per his version in his affidavit dated 17.10.2002, marked as Ex.B.28, the children of late Perianayagam approached him and sought advice in respect of the properties owned by him. The said Lourdusamy claims that in his presence all the properties of the family were divided among the sons and daughters as mentioned in his affidavit. In Para 5 and 6 he has mentioned the events of oral partition which read as follows: "5. Late Perianayagam died on 09.12.1984 and immediately I came down to Indian and Burial Ceremony was done by me. Thereafter as per the wish of my brother late Perianayagam and with the consent of his children and widow, late Perianayagam's properties were divided and under which the property known as Annai Lodge in Nehruji Road, Villupuram Town was allotted to the share of Dominic Savio and the bus transport, rice mill, house and land at Mugaiyur were allotted to Stanley Lourdes Xavier. The widow was allowed to reside in the house Raja Palace along with the son Stanley Lourdes Xavier. The daughters of Perianayagam were already provided and therefore they did not claim any share and the other son of Perianayagam by name John Bosco was not given any property as he entered into priesthood. This oral orangement was made in the presence of the children of late Perianayagam and his widow and all of them consented to the same. 6. I state in pursuance of the said oral arrangement, the widow and the other children of late Perianayagam gave consent and no objection letter to transfer the license of Annai Lodgein the same Dominic Savio and from 1985 onwards Dominic Savio is enjoying the Annai Lodge property as his absolute property. Likewise Stanley Lourdes Xavier is enjoying the other properties allotted to him as his absolute properties." 12. The learned counsel for the plaintiff Mr.R. Balakrishnan would contend that in the absence of examination of the said Lourdusamy, Ex.B.28 could not be relied upon. Likewise Stanley Lourdes Xavier is enjoying the other properties allotted to him as his absolute properties." 12. The learned counsel for the plaintiff Mr.R. Balakrishnan would contend that in the absence of examination of the said Lourdusamy, Ex.B.28 could not be relied upon. But it is contended by Mr.M.V. Venkataseshan, learned counsel for 5th defendant that the said Lourdusamy is a creditable personality who could not come down to India for the examination before the Court, that the trial Court has considered his affidavit as a genuine one and there was no necessity to examine him for proving Ex.B.28. In the considered view of this Court, even though the deponent of Ex.B.28 is holding a responsible position in the office of the Pope, Vatican City, Rome, for the formal proof of Ex.B.28 he should have been examined by 5th defendant. Since he was not available for cross examination, the plaintiff had got no opportunity to cross examine as to her alleged oral relinquishment in the properties and oral partition of the same. The alleged oral relinquishment remains unproved. In Ex.B.26 unregistered partition agreement, it is stated that in the presence of the said Lourdusamy in Kalleri Village of Chengi Taluk, the agreeement was brought about among defendants 1,5,6 and 7. The other family members agreed to transfer in favour of 7th defendant and the bus bound for Tindivanam to Kallakurichi has also to be taken by the 7th defendant and the other members in Ex.P.26 have to give their consent in favour of 5th defendant for change of license with respect to the suit property. Insofar as Ex.B.28 registered partition deed is concerned, 5th, 6th and 7th defendants have agreed to allot the suit properties to 5th defendant and a sum of Rs.25,000/- has to be allotted to 6th defendant. 13. The learned counsel for the plaintiff would assail the above said Ex.P.26 stating that since the document has not been registered, it is not admissible in evidence. For this proposition, he placed reliance upon a decision in AIR 1988 SC 1381 [Smt.Sudha Devi v. M.P. Narayanan and others]. 14. This point is answered by this Court that the above said partitions are not binding upon the plaintiff for the reason that she is not a party to these documents. In the evidence, she pleads ignorance of the above said transactions. 14. This point is answered by this Court that the above said partitions are not binding upon the plaintiff for the reason that she is not a party to these documents. In the evidence, she pleads ignorance of the above said transactions. The daughters have been excluded from the partition and hence they are not binding upon them. Since the plaintiff is not a party to these transactions neither the oral relinquishment nor partition under Exs.P.26 and 27 are not binding upon her. This point is answered in negative. Point No.2 15. It is pleaded by 5th defendant in his statement that he has prescribed title to the schedule property, he claims adverse possession to the property. But there is no specific pleading of ouster. In order to prove adverse possession, the defendant has to establish long, uninterrupted and continuous possession of the property with the knowledge of the plaintiff over statutory period. In this case, it is not specifically pleaded when the possession of 5th defendant became adverse to plaintiff. She had been out of picture as to the alleged partition transaction between the brothers. On 21.8.1985, the plaintiff and defendants 1 to 4, 6 and 7 have given consent to the Commissioner of Villupuram Municipality for transfer of license of the lodge in the name of 5th defendant under Ex.B.5. But expressing no objection for the transfer of name in the licence, would not amount to relinquishment of right in the property by others. In this context, the learned counsel for the plaintiff would draw attention of this Court to a decision of this Court in 2003 CTC 29 [Lakshmiammal and another] in which the learned judge has observed in para 16 following the citations referred to by him in para 15. They are as follows: "15. Learned senior counsel for the respondents has referred to the following decisions in this context: (i) P.LakshmiReddy v. L.Lakshmi Reddy, A.I.R.1957 S.C.314 (ii) ShambhuPrasad Singh v. Most Phool Kumari, (iii) S. S. Gulam Ghouse v. S.S.A.M.Kamisul Qadri, (iv) MayavaKoundar v. Subbaraya Koundar, 1977 (1) M.L.J.. 113 (V) Gopathy and others v. Seshachala Naidu and others, 1995 (1) M.L.J 213 . 16. 113 (V) Gopathy and others v. Seshachala Naidu and others, 1995 (1) M.L.J 213 . 16. All the above mentioned decisions undoubtedly lay down the following well accepted propositions:- (a) There should be a pleading of ouster and it would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession. (b) The possession should be open with assertion of hostile title and to the knowledge of the co-owner. (c) Adverse possession will commence only from the the date of ouster. (d) The single circumstance of either mutation of records, or payment of taxes, non-participation in the rents or in management of the properties, appropriation of income etc., each of these facts will not by itself establish ouster or adverse, possession as against co-owner. But the cumulative effect of the circumstances have to be properly weighed." 16. The pleadings and evidence adduced by the 5th defendant with respect to adverse possession are vague. There is no clinching evidence for the proof of adverse possession. In this juncture, it has to be necessarily observed that the plea of adverse possession has not been established by the 5th defendant. This point is answered in the negative. Point No.3 17. It is also a pleading available in the written statement of the 5th defendant, that the suit is bad for partial partition. The suit property stands in the name of Perianayagam as per Ex.A1 and the other properties are standing in the name of first defendant, his wife. There is no cause of action for claiming share in the properties belonging to first defendant for the plaintiff. Sufficient pleadings are available in the written statement of the second defendant that the other properties are standing in the name of her mother. Further it is the admitted fact by the 5th defendant in his evidence that the other properties are belonging to his mother. In his cross examination he would state that he admits that the suit property [Annai Lodge] belongs to his father. In view of the above, it could not be stated that the suit bad for partial partition. This point is answered in negative. Point No.4 18. Yet another pleading available in the written statement of 5th defendant is that the suit is also bad for misjoinder of parties. In view of the above, it could not be stated that the suit bad for partial partition. This point is answered in negative. Point No.4 18. Yet another pleading available in the written statement of 5th defendant is that the suit is also bad for misjoinder of parties. But there is no specific pleading to the effect that who are all the unnecessary parties in this suit. In view of this Court all the parties are necessary parties in the suit. Hence this point is also answered in negative. Point No.5 19. It is argued that since the plaintiff is out of possession, suit should have valued under Section 37(2) of the Court Fees Act and payment of Court fees under Section 37 (1) of the Act is not sustainable. But from the pleadings and evidence on record it is shown that the property is still in joint possession of the plaintiff and the defendants 1 to 7 and hence the payment of Court fee u/s 37(1) of the Act is proper. This point is answered in the affirmative. Point No.6 20. It is contended by the 8th defendant in their statement that they have entered an agreement for sale with 5th defendant on payment of Rs.15 lakhs. They have filed suit in O.S.No.270/99 on the file of the Pincipal Sub-Judge, Villupuram for recovery of the amount. The 5th defendant appears to have entered into the agreement for sale representing that he is the absolute owner of the property. But in this case, it has been held that the plaintiff is a joint owner of the property and whatever be the transaction entered into by the 5th defendant, is not binding upon her. The 8th defendant is always at liberty to proceed against the 5th defendant for necessary relief and the properties belonging to them can also be proceeded with. This point is answered accordingly. Point No.7 21. In the plaint it is pleaded that after the expiry of Perianayagam, his wife, sons and daughters are each entitled 1/8th share in the suit property. Such ascertainment of share is wrong in view of the provision in Section 33 of the Indian Succession Act 1925, which goes thus: "33. This point is answered accordingly. Point No.7 21. In the plaint it is pleaded that after the expiry of Perianayagam, his wife, sons and daughters are each entitled 1/8th share in the suit property. Such ascertainment of share is wrong in view of the provision in Section 33 of the Indian Succession Act 1925, which goes thus: "33. Where intestate has left widow and lineal descendants or widow and kindered only, or widow and no kindered – Where the intestate has left a widow (a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained." 22. In view of the above said provision 1/3rd share in the property shall go to first defendant and the remaining 2/3rd share would be taken by the plaintiff and defendants 2 to 7 equally. In this context, this point is answered that the plaintiff is entitled for 2/21 share in the suit property. 23. In the result the appeal as allowed in part passing preliminary decree for partition for 2/21 share of plaintiff in the schedule property. 8th defendant is at liberty to proceed against 5th defendant and the properties belonging to him. No costs.