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2012 DIGILAW 503 (MAD)

Thailammal v. Minor Easwari

2012-02-01

M.VENUGOPAL

body2012
Judgment :- 1. The Appellants/Defendants 1, 3 to 6 have preferred this Second Appeal as against the Judgment and Decree dated 18.08.1998 in A.S.No.29 of 1997 passed by the Learned Sub Judge, Bhavani in confirming the Judgment and Decree dated 28.08.1997 in O.S.No.262 of 1996 on the file of the Learned Additional District Munsif, Bhavani. 2. The First Appellate Court, viz., the Learned Sub Judge, Bhavani, while passing the Appeal in A.S.No.29 of 1997 filed by Appellants/Defendants 1, 3 to 6, on 18.08.1998, has interalia observed that in the Partition Deed dated 18.06.1984, the property not concerned with the joint family in O.S.No.1547 of 1973 has been allotted to the Respondents/Plaintiffs father and later this property owner has taken possession through Court from Parvathi Gounder and the Partition Deed dated 18.06.1984 is a partition which has taken place in an unfair manner and the Court has decided to set aside the same and accordingly, set aside the Partition Deed dated 18.06.1984, thereby confirming the Judgment and Decree passed by the trial Court in the main suit. 3. Earlier, in the main suit, the trial court has framed one to three issues for determination. On the side of the Respondents/Plaintiffs, witness P.W.1 has been examined and Exs.A1 to A4 have been marked. On the side of the Appellants/Defendants 1, 3 to 6, witness D.W.1 has been examined and Exs.B1 to B12 have been marked. 4. The trial Court, after analysing and scrutinizing the entire oral and documentary evidence, has come to a definite conclusion that the property effected in the partition and given to Parvathi Gounder has already been mortgaged and although the suit property has been enjoyed by the family of Parvathi Gounder, the said property is the mortgaged property obtained from Gopal Chettiar and others. 5. 5. Also, the trial Court opines that, later the said Gopal Chettiar, for redemption of mortgage, filed O.S.No.1547 of 1973, which is filed before the partition and Parvathi Gounder and Defendants 2 and 3 and their father, Sengoda Gounder have come to know that the property is a mortgaged property before the partition and further, the D-Schedule property allotted to Parvathi Gounder is not an ancestral property belonging to Parvathi Gounder, Defendants 2 and 3 and his father Sengoda Gounder and consequently has come to a conclusion that the properties concerned in O.S.No.1547 of 1973 obtained through Partition Deed dated 18.06.1984 and allotted to Parvathi Gounder is an unfair one and resultantly set aside the Partition Deed dated 18.06.1984. Moreover, it has allotted 8/28 share to the Respondent/Plaintiff and passed a preliminary decree with costs. Further, the Defendants have been directed to pay the Court Fee to the Government. 6. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Question of Law : "Whether the suit to cancel the Partition Deed can be decreed in the absence of the Partition Deed being placed before Court?" The Contentions, Discussions and Findings on Substantial Questions of Law : 7. The Learned Counsel for the Appellants/Defendants 1, 3 to 6 submits that the Partition Deed dated 18.06.1984 being the subject matter in issue has not been produced either before the trial Court or the First Appellate Court and even though a xerox copy of the said Deed has been filed as a plaint document and in the absence of such Partition Deed being available before the Court, both the Courts ought not to have granted the relief as prayed for by the Respondents/Plaintiffs. 8. Advancing his arguments, the Learned Counsel for the Appellants/Defendants 1, 3 to 6, urges before this Court that the concluded Partition cannot be reopened by minors when their father has been a party to the Partition and has not questioned the same during his lifetime. 9. Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants 1, 3 to 6, that there is no evidence of fraud or misrepresentation being played by Parvathi Gounder and in the absence of such proof, both the Courts below should have dismissed the suit. 10. 9. Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants 1, 3 to 6, that there is no evidence of fraud or misrepresentation being played by Parvathi Gounder and in the absence of such proof, both the Courts below should have dismissed the suit. 10. Per contra, it is the submission of the Learned Counsel for the Respondents/Plaintiffs that both the Courts below have concurrently held that Parvathi Gounder has not been allotted with properties belonging to the ancestral joint family and as such, the Partition Deed dated 18.06.1984 is an unfair one and viewed in that perspective, the trial Court has granted a Decree in favour of the Respondents/Plaintiffs in respect of the suit properties of 8/28 share and the First Appeal has been rightly dismissed by the First Appellate Court, which need not be interfered with by this Court sitting in Second Appeal. 11. The Respondents/Plaintiffs before the trial Court in their plaint have averred that they are the only legal heirs of Parvathi Gounder (deceased) and their father Parvathi Gounder and the Defendants 2 and 3 are brothers and that Defendants 4 to 6 are sisters of their father. Their fathers mother is the first Defendant and their father and Defendants 1 to 6 are the legal heirs of Sengoda Gounder. 12. According to the case of the Respondents/Plaintiffs, the plaint schedule properties belong to the joint family of their father, Defendants 2 and 3 and their father, Sengoda Gounder. Therefore, they are entitled to 8/28th share in the suit properties. The second and third Defendants are entitled to 8/28th share. The first Defendant and Defendants 4 to 6 are entitled to 1/28th share each. 13. Continuing further, the Respondents/Plaintiffs have stated that on 18.06.1984, a Registered Partition Deed has been entered into between their father, Defendants 2 and 3 and their father Sengoda Gounder. In the said Partition Deed, their father has been allotted the D-Schedule properties and their father has been fully in charge of the whole affairs of the family. The Respondents/Plaintiffs father learnt in recent years only prior to his death and also before filing of the suit in O.S.No.283 of 1989, that one S.N.Gopalan, son of Nanjappa Chettiar of Siruvalur filed a suit for redemption of S.F.No.242/A of Oddarpalayam Village measuring 5.26 acres. 14. The Respondents/Plaintiffs father learnt in recent years only prior to his death and also before filing of the suit in O.S.No.283 of 1989, that one S.N.Gopalan, son of Nanjappa Chettiar of Siruvalur filed a suit for redemption of S.F.No.242/A of Oddarpalayam Village measuring 5.26 acres. 14. Also, the Respondents/Plaintiffs father has come to know that the suit has been filed in the year 1973 and finally disposed of by the High Court during August 1984. The said Gopalans legal heir conducted the proceedings and ultimately obtained a decree for redemption. Based on the redemption decree, their father, through Court has been dispossessed on 25.08.1988 by the Decree Holder. 15. Only after dispossession, the Respondents/Plaintiffs father has come to know that the property allotted to their father and the Partition Deed dated 18.06.1984 does not belong to the family at all, but belonged to the third party. Therefore, their father has come to know about the fraud and misrepresentation played by Defendants 2 and 3, etc only when he has been dispossessed on 25.08.1988. Therefore, the Respondents/Plaintiffs have laid the present suit claiming 8/28 shares in respect of the suit properties. 16. In the Written Statement filed by the third Defendant adopted by Defendants 1, 2, 5 and 6, it is mentioned that it is his father, Parvathi Gounder and Palanisamy Gounder, who brought about the Partition dated 18.06.1984 and his father directed him and Palanisamy Gounder to discharge the family debts, and Parvathi Gounder was allotted property free of any encumbrance as it stood then. But, Parvathi Gounder has been aware of the pending Appeal and he has taken the property allotted to him willingly on his own accord. The next friend Madammal and Parvathi Gounder are well aware of the breaking burden of family debts. In fact, he has filed a suit for declaration and permanent injunction in O.S.No.285 of 1989 even during the lifetime of Parvathi Gounder and Parvathi Gounder has not filed any Written Statement impeaching the allotment made to him. Since Parvathi Gounder has not opted to share the burden of debts, himself or his legal representatives are estopped in law from reopening the partition. 17. Since Parvathi Gounder has not opted to share the burden of debts, himself or his legal representatives are estopped in law from reopening the partition. 17. In the additional Written Statement filed by the third Defendant, it is stated that immediately after Partition, only for one year, Parvathi Gounder has cultivated the land allotted to him personally, and later, he left the land to be cultivated by the third Defendant and his brother for three years on receipt of advance rent, though the rent Deed itself was executed in favour of one Perianna Gounder. After letting the land, Parvathi Gounder left for Mysore to the home Village of his father-in-law, where he is said to have died during the year. A sum of Rs.30,000/-towards the discharge of his share of the debts has been paid by him. Further, he borrowed heavily from the Creditors and Co-operative Bank to deepen the Well and instal Electric Motor and Pumpset and he has incurred a sum of Rs.2,00,000/-including the expenditure for reclamation of the land. 18. Also that, he and his elder brother have purchased the property allotted to the deceased brother and portion allotted to his father from Gopal Chettiar and others, each in moiety for a sum of Rs.25,000/- though stamps were paid on the value of Rs.18,000/-only during the year 1988. After the purchase, the third Defendant caused improvement over the land. The property purchased from the heirs of Gopal Chettiar is his separate property, in which nobody could make any claim for partition. The joint family consisting of the father and three sons came to an end. There has already been a division of properties among the coparceners, which is challenged now. The female heirs of Late Sengoda Gounder have no right to claim any share. 19. P.W.1 has categorically deposed before the trial Court that the mother of minor Plaintiffs, Madammal is his brothers daughter and Parvathi Gounder has died after snake bite and that ten years have lapsed after the demise of Sengoda Gounder and the property allotted to Parvathi Gounder because of the suit filed by Gopalan. Possession has been taken by Parvathi Gounder through Court and the said Gopalans legal heirs have taken the possession and therefore, the land allotted to the Plaintiffs father has vanished. 20. Possession has been taken by Parvathi Gounder through Court and the said Gopalans legal heirs have taken the possession and therefore, the land allotted to the Plaintiffs father has vanished. 20. D.W.1, in his evidence has candidly and tacitly admitted that the property has been allotted to Parvathi Gounder, but he has stated that he and his brother have purchased the property allotted to Parvathi Gounder by paying Rs.60,000/-, but the value of the sale consideration has been shown as Rs.17,000/-and that the two acres which have been allotted to his brother and elder brother have been enjoyed by them separately. 21. In Law, a Second Appeal cannot be decided on Equitable grounds. A Second Appeal against a confirming Judgment which is based on the concurrent findings of fact is liable to be dismissed. Ordinarily, the concurrent findings of the trial Court and that of the first Appellate Court cannot be set aside in Second Appeal by a Court of Law. 22. It cannot be in dispute that the property that has been allotted to Parvathi Gounder has already been mortgaged and the said property has been in enjoyment of Parvathi Gounders family yet. But, the said property has been obtained through mortgage from Gopal Chettiar and later, the suit for redemption in O.S.No.1547 of 1973 has been filed by Gopal Chettiar and the said suit has been filed prior to the partition and this factum of the property, which is a mortgaged one has come to be known to Parvathi Gounder and Defendants 2 and 3 and their father Sengoda Gounder. Therefore, it is quite evident that the properties allotted in D-Schedule of the Partition Deed to Parvathi Gounder are not the ancestral properties belonging to Parvathi Gounder, Defendants 2 and 3 and their father Sengoda Gounder. 23. As seen from the suit Extract Register, Ex.A4, dated 14.08.1997, these properties have been taken possession through Court by Gopal Chettiar from Parvathi Gounder. As such, this Court comes to an irresistable and inevitable conclusion that the properties allotted to Parvathi Gounder by means of partition cannot be made or effected in that fashion because of the reasons mentioned by this court earlier and consequently, this Court is left with no option but to set aside the Partition Deed dated 18.06.1984. As such, this Court comes to an irresistable and inevitable conclusion that the properties allotted to Parvathi Gounder by means of partition cannot be made or effected in that fashion because of the reasons mentioned by this court earlier and consequently, this Court is left with no option but to set aside the Partition Deed dated 18.06.1984. In this regard, the trial Court as well as the First Appellate Court have taken note of the sufficient, adequate, oral and documentary evidence available on record and has come to a definite conclusion that the Partition Deed dated 18.06.1984 is liable to be set aside and is accordingly set aside by granting the relief of 8/28 shares to the Respondents/Plaintiffs and thereby passed a preliminary Decree in favour of the Respondents/Plaintiffs and dismissed the First Appeal. 24. To put it shortly, there is no material irregularity or perversity or patent illegality or there is no misreading of evidence by both the Courts below. In the present case, since the parties have admitted their Partition Deed dated 18.06.1984 and although the same has not been marked before the trial Court as a document, the same is not fatal. Also, an admission is the best piece of evidence. It will not preclude the trial Court or the Appellate Court in dealing with the merits of the case. Accordingly, the Substantial Question of Law is answered against the Appellants/Defendants 1, 3 to 6. 25. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 18.08.1998 passed in A.S.No.29 of 1997 and that of the trial court dated 28.08.1997 in O.S.No.262 of 1996 are confirmed for the reasons assigned in this Appeal.