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2013 DIGILAW 2342 (MAD)

Neelakandan @ Stalin v. Jaya

2013-07-05

R.S.RAMANATHAN

body2013
Judgment :- 1. The defendants 1 to 4 in O.S.No.318 of 1988 on the file of the Sub-Court are the appellants. The plaintiffs 1 and 2 are the respondents 1 and 2 herein and the 5th defendant is the 3rd respondent in this appeal. The plaintiffs 1 and 2 / respondents 1 and 2 herein has filed the suit for partition of 7/18 share and the suit was decreed and the preliminary decree was passed. Aggrieved by the same, this appeal is filed by the defendants 1 to 4 / appellants 1 to 4. 2. It is seen from the plaint allegation that one Periyasamy had two wives and the 1st wife was Chinnammal and 2nd wife was Janaki, the 2nd defendant in the suit. Through the 1st wife, Periyasamy had a son by name Chandran, who died in the year 1965 and Chandran married the 1st plaintiff and the 2nd plaintiff was his daughter, and Periyasamy died intestate on 02.12.1970 and the defendants 1, 3 to 5 are the children of periyasamy through his 2nd wife Janaki and the suit properties are the ancestral properties in the name of Periyasamy and therefore, the plaintiffs are entitled 7/18 share and filed the suit for partition. 3. The appellants/defendants filed a statement admitting that Periyasamy had two wives and through 1st wife, he had a son by name Chandran, who predeceasedst Periyasamy and through 2nd wife, periyasamy had a son, 1 defendant and daughters, the defendants 3 to 5. Nevertheless, they denied the status of the plaintiffs and contended that Chandran died unmarried, and the 1st plaintiff was not his wife and the 2nd plaintiff was not born through 1st plaintiff and the plaintiffs are not the legal representatives of the deceased and they are not entitled to any share. The trial Court framed the following issues: "1. whether the 1st plaintiff was the wife of the deceased Chandran ? 2. Whether the 2nd plaintiff was the daughter of the deceased Chandran ? 3. Whether Chandran predeceased his father periyasamy ? 4. Whether Chandran died unmarried ? 5. Whether item Nos.8 and 10, in the suit properties, are in the possession of the defendants ? 6. Whether muchalika of panchayat dated 02.11.1975 was true ? 7. Whether the defendants were having debt of Rs.40,000/- ? 8. Whether the plaintiffs are entitled to partition and rendition of accounts ? 9. 4. Whether Chandran died unmarried ? 5. Whether item Nos.8 and 10, in the suit properties, are in the possession of the defendants ? 6. Whether muchalika of panchayat dated 02.11.1975 was true ? 7. Whether the defendants were having debt of Rs.40,000/- ? 8. Whether the plaintiffs are entitled to partition and rendition of accounts ? 9. To what relief the plaintiffs are entitled to ? " 4. On the side of the plaintiffs, the 1st plaintiff examined herself as PW1 and 1st plaintiff's sister was examined as PW 2 and 21 documents were exhibited on the side of the plaintiffs. On the side of the defendants, 1st defendant examined himself as DW1 and marked 5 exhibits on his side. The trial court tried issues 1 to 4 and 6 together and held that Chandran predeceased Periyasamy and the 1st plaintiff was married to Chandran in the year 1961 and 2nd plaintiff was born to Chandran through 1st plaintiff and therefore, they are the legal representatives of Chandran and the panchayat held on 02.11.1975, was true and answered issues 1 to 4 and 6, in favour of the plaintiffs/respondents 1 and 2. The issues 5, 7 and 8 were tried together and the trial court held that the defendants failed to prove that the family of Periyasamy was having Rs.40,000/- debts and the family members are liable to discharge Rs.40,000/- and item Nos.8 and 10 also are belonging to joint family of periyasamy and therefore, the plaintiffs are entitled to a share in those properties and also passed preliminary decree of 7/18 share. Aggrieved by the same, the 1st appeal is filed by the defendants 1 and 4. 5. Mr.P.Mani, learned counsel for the appellant submitted that though the appellants admitted that Chandran was born to Periyasamy through his 1st wife Chinnammal, the appellant, denied the case of the respondents/plaintiffs that Chandran got married the 1st plaintiff and through him, she gave birth to the 2nd plaintiff and hence, the respondents 1 and 2 /plaintiffs are not entitled to claim any share. He also submitted that the trial Court on the basis of the panchayat held on 02.11.1975, ought to have held that as per the decision of the panchayat, the plaintiffs are entitled to claim only Rs.4,500/- and they have no right over the properties and ought to have dismissed the suit for partition. He also submitted that the trial Court on the basis of the panchayat held on 02.11.1975, ought to have held that as per the decision of the panchayat, the plaintiffs are entitled to claim only Rs.4,500/- and they have no right over the properties and ought to have dismissed the suit for partition. He would further submit that without discharging the loan payable by the family for paying their respective shares, the plaintiffs are not entitled to partition in respect of other properties. He also submitted that items 8 and 10 are not joint family properties and they are not liable for partition. 6. On the basis of the learned counsel for the appellant, the following points for consideration arise in this appeal: "1. Whether the plaintiffs/respondents are the legal representatives of Chandran ? 2. Having regard to Ex.A5, whether the plaintiffs are entitled to claim any share in the property even assuming that they are the legal heirs ? 3. Whether items 8 and 10 are liable for partition ? 4. whether the defendants/appellants proved that the family has to pay Rs.40,000/-in the event of granting partition and the respondents/plaintiffs are liable to pay the proportionate share ?" 7. The 1st plaintiff examined herself as PW 1 and examined her sister as PW2, to prove her marriage with Chandran. Ex.A4 is the birth certificate of the 2nd plaintiff, wherein the 1st plaintiff is described as the wife of Chandran. PW 1 and PW 2 have given cogent evidence regarding marriage and their evidence was not shattered by the appellants and considering all these aspects, the trial court held that the 1st plaintiff was married to Chandran and 2nd plaintiff was born through her to Chandran. 8. Further, the 1st appellant also admitted in evidence that he used to right letters to the plaintiffs, wherein he addressed the 1st plaintiff as ANNI (mz;zp), which means elder brother’s wife, and admitted Exs.A9, 10 and 13, the letters addressed to the 1st plaintiff. Therefore, the findings of the trial court that the 1st plaintiff was married one chandran and 2nd plaintiff was born to chandran through 1st plaintiff are correct. Therefore, the point for consideration No.1 is answered against 2nd the appellant and I hold that the 1st plaintiff was married to Chandran and 2 plaintiff was born to Chandran through the 1st plaintiff. 9. Therefore, the point for consideration No.1 is answered against 2nd the appellant and I hold that the 1st plaintiff was married to Chandran and 2 plaintiff was born to Chandran through the 1st plaintiff. 9. Ex.A5 is Panchayat muchalika and that was produced by PW 1, in support of her case and the 1st appellant also admitted that the panchayat was held at thest instance of 1st plaintiff. In Ex.A5, the 1 plaintiff was described as wife of late Chandran, it is the contention of the learned counsel for the appellant that if Ex.A5 is accepted, then the plaintiff cannot claim any share in the properties as they have relinquished their rights over the movable and immovable properties by agreeing to receive Rs.4,500/- and therefore, the present suit for partition is not maintainable. No doubt in Ex.A5, the 1st plaintiff agreed to receive Rs.4,500/- and agreed to relinquish her right over the movable and immovable properties and also accepted to Rs.200/- as advance. But, there was no evidence that the balance sale consideration at Rs.4,300/- was paid by the 1st defendant to the 1st plaintiff and a reading of Ex.A5 also makes it clear that the parties agreed to enter into a relinquishment deed whereby, the 1st plaintiff agreed to release her right over the properties and admittedly, no relinquishment deed was executed by the 1st plaintiff, in favour of the 1st defendant. Therefore, it cannot be contended by the appellants that under Ex.A5, the respondents relinquished their right over the properties and therefore, they are not entitled to claim any share in the properties. Hence, the 2nd point is also answered against the appellant. 10. Though Exs.B1 to B4 were marked by the appellants to prove that the family incurred debts of Rs.40,000/- and the debts were incurred for family necessities and therefore, the plaintiffs are liable to pay their respective shares, the trial court has rightly rejected the contention holding that no evidence was let in to prove that the loans were incurred for family necessities and the plaintiff agreed to share the burden. Hence, the point for consideration No.4 is answered against the appellant and I hold that the plaintiffs are not liable to pay any amount towards debts incurred by the appellants. 11. Hence, the point for consideration No.4 is answered against the appellant and I hold that the plaintiffs are not liable to pay any amount towards debts incurred by the appellants. 11. As regards item 8 and 10, no documents were produced by the appellants to prove that item 10 was sold and item 8 was settled in favour of one Pushpammal and therefore, those 2 items cannot be excluded from partition. Hence, I do not find any infirmity in the findings of the trial court in that regard. Therefore, the point for consideration No.3 is also against the appellant. 12. The trial Court has rightly decreed the suit as prayed for as the respondents are entitled to 7/18 share in the joint family property. 13. In the result, the judgment and decree of the trial court are confirmed and the appeal is dismissed. No costs.