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2014 DIGILAW 11 (MAD)

Kannan v. Om murugan

2014-01-03

PUSHPA SATHYANARAYANA

body2014
JUDGMENT 1. The unsuccessful defendants aggrieved by the unanimous decisions of the Courts below, preferred this second appeal. 2. The case of the plaintiffs is that the suit property belonged to Kesavan, Kenayan @ Arumugam and Manickam, all are sons of one Kedayan. All the three persons jointly sold the properties to one Anjalai, wife of Veeran on 12.8.1922. From the date of purchase, the suit properties were enjoyed by the said Anjalai Ammal and she died intestate about 55 years back, leaving behind her husband Veeran as her only heir. After the death of said Anjalai Ammal, her husband Veeran was enjoying the property absolutely. The said Veeran married one Thailammal as second wife, through whom, a daughter by name Chinthamani was born. The suit properties were in the enjoyment of said Veeran and Thailammal. After the death of Veeran and his wife Thailammal, their daughter Chinthamani became an absolute owner of the property. The said Chinthamani married one Manickam, who is her uncle and the son of Kedayan. The first plaintiff was born to the said Manickam and Chindhamani. As there was some interference from the brothers of Manickam, some portions of the suit properties were purchased from the sharers on 20.9.1977 and the first plaintiff namely Sarathammal has become an absolute owner and got the property by way of a Gift Settlement Deed from her brothers Govindasamy, Chinnapaiyan and Chinnaiyan on 7.5.1978 under Ex.A3. The said settlement deed was accepted and acted upon. 3. The defendants, who are the legal heirs of the sharers in the sale deed dated 12.8.1922 under Ex.A1, are making claim in the suit properties. The defendants do not have any right over the suit property, after the sale under Ex.A2 on 20.9.1977 in favour of the first plaintiff. As the defendants were making unlawful claim in the properties, the suit was filed for declaration and permanent injunction restraining them from interfering with the suit properties. The suit was resisted by the defendants on the ground that if really the first plaintiff has got rights under Ex.A1 dated 12.8.1922, there was no necessity for the first plaintiff to purchase the same under Ex.A2 on 20.9.1977 from the other shareholders. The suit was resisted by the defendants on the ground that if really the first plaintiff has got rights under Ex.A1 dated 12.8.1922, there was no necessity for the first plaintiff to purchase the same under Ex.A2 on 20.9.1977 from the other shareholders. According to the defendants, the said act of purchasing the portion of the properties covered under Ex.A1 shows that the other sharers also have rights in the properties, which was accepted by the first plaintiff by her act before the Trial Court. 4. The plaintiffs have marked Exs.A1 to A16 and the defendants have marked Exs.B1 to B22. The second and third plaintiffs examined themselves as PW1 and PW2, besides examining PW 3 and PW4. Similarly on the side of the defendants, the 2nd and 4th defendants examined themselves as DW2 and DW1. 5. On appreciation of documents and evidence, the courts below have decreed the suit declaring the title of the plaintiffs. Aggrieved by the same, the second appeal is filed by the defendants and the following substantial questions of law were framed at the time of admission of this second appeal: "1. Whether in law the Courts below are right in granting a decree for declaration of title to a vast extent when admittedly Ex.A2 conveyed only 50 cents? 2. Whether in law the Courts below are right in over looking that even otherwise as the properties were undivided, there could be no decree for injunction against co-owners? 3. Whether in law the Courts below are right in failing to advert to the various admissions of the witnesses of the Plaintiffs regarding their title and possession?" 6. Pending suit, the first plaintiff died and her legal heirs, the other plaintiffs, were brought on record. It is the concurrent judgements by the Courts below that the plaintiffs have claimed rights under the sale deeds Ex.A1 dated 12.8.1922, Ex.A2 dated 20.9.1977 and Gift Settlement Deed Ex.A3 dated 7.5.1978, whereas the defendants have produced documents, which are patta and kist receipts, which were subsequent to the filing of the suit and therefore, they are all have no significance. 7. No doubt, it is the bounden duty of the plaintiffs to establish their case before the Court of law, when they came with a specific case that they are absolute owners of the suit property. 7. No doubt, it is the bounden duty of the plaintiffs to establish their case before the Court of law, when they came with a specific case that they are absolute owners of the suit property. From the reading of the Ex.A1 sale deed, which is of the year 1922, it can be seen that the sons of Kedayan, namely Kesavan, Kenayan @ Arumugam and Manickam had executed the said sale deed in favour of Anjalai, who was none else than their sister and it is not in dispute that the properties mentioned therein are the suit properties. But, the extent is little less. As there were disputes and disturbances between the plaintiffs and defendants, the first and third plaintiffs purchased a portion of the properties in 1977 under the sale deed Ex.A2 from the defendants 1 to 3. The said sale deed is now taken advantage by the defendants for making their claim that they also have shares in the suit properties. 8. Even assuming that they have shares by the said sale deed under Ex.A2, they have given up their rights in the same. The further contention of the defendants is that after the death of Anjalai, the properties would revert to the brothers, namely Kesavan, Kenayan @ Arumugam and Manickam as the said Anjalai did not have any issues. It may not be correct, because on the date of death of Anjalai, her husband Veeran was surviving. Therefore, any property held by Anjalai would devolve upon the said Veeran. After the death of the first wife Anjalai, the said Veeran married Thailammal as second wife, to whom Chinthamani was born and the said Chinthamani had married Manickam, one of the sons of Kedayan. The first plaintiff is the daughter of the said Manickam and Chinthamani and therefore, after the death of Anjalaiammal, the property devolved upon her husband Veeran. After the death of Veeran and his second wife Thailammal the property devolved on their only daughter Chinthamani The said Chinthamani and her husband Manickam settled the property in favour of the first plaintiff Sarathambal. These facts are not disputed by the defendants. The other sons who are born to Chinthamani, namely Govindasamy, Chinnapaiyan and Chinnaiyan had released their rights by way of the Gift Settlement Deed under Ex.A3 in favour of Sarathambal. Therefore, the said Sarathambal was the absolute owner of the suit property. These facts are not disputed by the defendants. The other sons who are born to Chinthamani, namely Govindasamy, Chinnapaiyan and Chinnaiyan had released their rights by way of the Gift Settlement Deed under Ex.A3 in favour of Sarathambal. Therefore, the said Sarathambal was the absolute owner of the suit property. The said facts could not be disputed and disproved by the defendants. 9. The defendants are also related to the plaintiffs and the documents filed by them have been rejected by the Courts below as they were subsequent to the filing of the suit. Whereas the plaintiffs have established their rights over the suit properties by way of documents and proved their continuous possession in the suit properties. Therefore, the plaintiffs are entitled to the decree as prayed for. 10. In view of the above findings, the substantial questions of law raised in the second appeal are answered in negative and the second appeal fails confirming the decree passed in the O.S.164 of 1997 on the file of the District Munsif Court, Panruti. No costs.