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2015 DIGILAW 3041 (MAD)

A. Venkatachalam v. Parvatham

2015-09-09

M.DURAISWAMY

body2015
JUDGMENT : The Second Appeal in S.A.(MD)No.771 of 2011 arises against the judgment and decree passed A.S.No.8 of 2010, on the file of the District Court, Sivagangai confirming the judgment and decree passed O.S.No.8 of 2008, on the file of the Subordinate Court, Devakottai. The defendants 1 and 2 in the suit have filed the above Second Appeal. 2.The Second Appeal in S.A.(MD)No.97 of 2014 arises against the judgment and decree passed in A.S.No.7 of 2010, on the file of the District Court, Sivagangai confirming the judgment and decree passed in O.S.No.8 of 2008, on the file of the Subordinate Court, Devakottai. The fourth defendant in the suit has filed the above Second Appeal. 3.Since the issues involved in both the Second Appeals are one and the same and both the Second Appeals arise from a single suit, the lower Appellate Court had disposed of both the appeals by a common judgment. Therefore, the above Second Appeals are disposed of by this common judgment. 4.The brief case of the plaintiff is as follows: According to the plaintiff, herself and the defendants 1 to 3 are the children of Andiyappan Ambalam. Further according to the plaintiff, Andiyappan Ambalam owned item No.1 and Item No.2 of the suit properties as his family ancestral properties and also acquired one property on his own. After the death of Andiyappan Ambalam in the year 1958, the first defendant, who is the eldest male member got the suit item No.3 for the family under the exchange deed dated 10.11.1981. The plaintiff has got undivided 1/4th share in the suit properties as one of the legal heirs of Andiyappan Ambalam. But the first defendant acting against the interest of the family, sold the third item of the suit property in favour of the fourth defendant under a sale deed dated 18.03.1997. The plaintiff came to know about the purchase made by the fourth defendant only in the year 2007. In these circumstances, the plaintiff filed the suit for partition. 5.The brief case of the defendants 1 and 2 are as follows: (i)According to the defendants there was an oral family arrangement in the year 1967 and in the said oral family arrangement, the defendant was given the vacant site, adjacent to the ancestral house in item No.1. In these circumstances, the plaintiff filed the suit for partition. 5.The brief case of the defendants 1 and 2 are as follows: (i)According to the defendants there was an oral family arrangement in the year 1967 and in the said oral family arrangement, the defendant was given the vacant site, adjacent to the ancestral house in item No.1. Further in the said oral family arrangement, the second defendant had given ½ (half ) share in the lands in suit item No.2 and in the ancestral house. Further it was agreed that the defendants should do customary Murais to their sisters i.e., the Plaintiff and the third defendant. As per the family arrangement, the first defendant did all customary Murais to the plaintiff and the third defendant. The plaintiff and the third defendant are not entitled to claim any share in the suit properties. Item No.3 of the suit properties is not an ancestral property. The first defendant exchanged the property allotted to him in the oral family arrangement of the year 1967 and got the suit item No.3 and sold the same in the year 1987 in favour of the fourth defendant. (ii) After the exchange of notices between the parties, there was an oral family arrangement during Thai 2001 and it was agreed that the first defendant should pay a sum of Rs.75,000/-to the plaintiff and the third defendant and that there would be no further claim by any of them for any shares of the properties. Accordingly by means of two demand drafts dated 27.02.2000, paid a sum of Rs.75,000/-each to the plaintiff and the third defendant. The plaintiff and the third defendant having received the said amounts cannot claim a share in the properties. In these circumstances, the defendants 1 and 2 prayed for dismissal of the suit. 6.The brief case of the fourth respondent is as follows: According to the fourth defendant, she is abonafide purchaser for value without notice of the alleged claim of the plaintiff. Further the fourth defendant contended that in the event of the Court coming to the conclusion that the plaintiff has no share in the properties, the property purchased by her may be allotted to her by adjusting the sale to the shares of the first defendant. In these circumstances, the fourth defendant prayed for dismissal of the suit. Further the fourth defendant contended that in the event of the Court coming to the conclusion that the plaintiff has no share in the properties, the property purchased by her may be allotted to her by adjusting the sale to the shares of the first defendant. In these circumstances, the fourth defendant prayed for dismissal of the suit. 7.Before the trial Court, on the side of the plaintiff P.W.1 was examined and five documents Exs.A.1 to A.5 were marked. On the side of the defendants, D.W.1 was examined and six documents Exs.B.1 to B.6 were marked. The trial Court, after taking into consideration the case of both parties, passed a preliminary decree allotting 1/4th share to the plaintiff. Aggrieved over the judgment and decree of the trial Court, the defendants 1 and 2 filed an appeal in A.S.No.8 of 2010 and the fourth defendant preferred an appeal in A.S.No.7 of 2010. The lower Appellate Court, after taking into consideration the case of both parties modified the judgment and decree passed by the trial court by allotting 1/12th share in item Nos.1 and 2 of the suit properties to the plaintiff and 1/4th share in item No.3 of the suit properties to her. Further the lower Appellate Court observed that the request of the fourth defendant to allot item No.3 of the suit property in her favour can be considered on equity in the final decree proceedings. The lower Appellate Court dismissed the suit in respect of the other claims made by the plaintiff. 8.Aggrieved over the judgments and decrees of the Courts below, the defendants 1 and 2 have filed the Second Appeal in S.A.(MD)No. 771 of 2011 and the fourth defendant has filed the Second Appeal in S.A.(MD)No.97 of 2014. 9.Heard Mr. A. Thirumurthy, learned Counsel appearing for the appellants in S.A.(MD)No.771 of 2011, Mr. R. Sundar Srinivasan, learned Counsel appearing for the appellant in S.A.(MD)No.97 of 2014 and the third respondent in S.A.(MD)No.771 of 2014 and Mr. M. Thirunavukarasu, learned Counsel appearing for the first respondent in both appeals. 9.Heard Mr. A. Thirumurthy, learned Counsel appearing for the appellants in S.A.(MD)No.771 of 2011, Mr. R. Sundar Srinivasan, learned Counsel appearing for the appellant in S.A.(MD)No.97 of 2014 and the third respondent in S.A.(MD)No.771 of 2014 and Mr. M. Thirunavukarasu, learned Counsel appearing for the first respondent in both appeals. 10.At the time of admission the above Second Appeals, the following Substantial Questions of law arose for consideration: (a) When the third schedule property stands in the name of the first appellant/first defendant through Exs.A.1 and A.2 and the same was transferred to fourth defendant/third respondent through Ex.A.3, whether the Courts below are correct in granting a preliminary decree of partition of ¼ share in favour of the plaintiff/first respondent and hence warrants interference. (b) When it is the evidence of P.W.1 that he was already aware of the said deed of exchange dated 10.11.1981 and there was no objection therefor and that the relationship was then cordial, whether the Courts below are justified in not holding that the plaintiff is estopped from claiming share in the said property which has been purchased by the appellant herein by means of registered sale deed dated 18.03.1997 and construction has been made therein. (c) when the plaint schedule for item No.3 does not mention about the existence of house of the appellant and the same was shown as a vacant site, whether the Courts below are justified in granting the relief of partition in respect of item No.3 also overlooking the fact that there is a house building thereon? (d) Whether the Courts below are justified in not applying the principle of Ostensible ownership when the appellant herein has purchased the item No.3 which stood registered in the name of the first respondent and there was no objection by the plaintiff even though they had knowledge about the transaction of exchange by the first defendant treating the said property as separate property?” 11.On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing either side, it could be seen that there is no dispute that the plaintiff is the sister of the defendants 1 to 3 and the plaintiff and the defendants 1 to 3 are the children of Andiyappan Ambalam who died in the year 1958. The fourth defendant purchased the item No.3 of the suit properties from the first defendant. The fourth defendant purchased the item No.3 of the suit properties from the first defendant. According to the defendants 1 and 2, as per the oral family arrangement of the year 1967, they possessed and enjoyed the suit item Nos.1 to 3 as their own properties and that by ouster and adverse possession derived absolute title in the suit properties. Ex.B.1 – patta, Ex.B.2 – sales tax receipt and Ex.B.3 – kist receipt issued in the name of the defendants 1 and 2 in respect of the item Nos.1 and 2 of the suit properties were produced before the trial Court. The exchange deeds dated 10.11.1981 were marked as Exs.A.1 and A.2. The first defendant executed the exchange deeds in respect of item No.3 of the suit properties. In the absence of any evidence on the side of the defendants 1 and 2 that they asserted their title and right to the knowledge of the other legal heirs of Andiyappan Ambalam by possessing the suit properties for more than the statutory period, the lower Appellate Court rightly came to the conclusion that Ex.A.3 sale deed dated 18.03.1997 executed in favour of the fourth defendant would not enure any benefit in favour of the defendants 1 and 2. 11.In the absence of any acceptable evidence with regard to the ouster and adverse possession by the defendants 1 and 2, the lower Appellate Court rightly held that the sale made in Ex.A.3 sale deed dated 18.03.1997 in favour of the fourth defendant in respect of Item No.3 of the suit property cannot be accepted. The lower Appellate Court has rightly found that the plaintiff is entitled to 1/12th share in item Nos. 1 and 2 and 1/4th share in item No.3. In these circumstances, the plaintiff is entitled to 1/12th share in item Nos.1 and 2 of the suit properties and 1/4th share in item No.3 of the suit property. The lower Appellate Court has rightly modified the judgment and decree of the trial Court finding that the plaintiff is entitled to 1/12th share in item Nos. 1 and 2 and 1/4th share in item No.3 of the suit property. The lower Appellate Court also rightly observed that the allotment of item No.3 of the suit properties in favour of the fourth respondent can be considered on equity in the final decree proceedings. 1 and 2 and 1/4th share in item No.3 of the suit property. The lower Appellate Court also rightly observed that the allotment of item No.3 of the suit properties in favour of the fourth respondent can be considered on equity in the final decree proceedings. The judgment and decree of the lower Appellate Court are just and proper. I do not find any reason to interfere with the findings of the lower Appellate Court. 12.In these circumstances, I find no ground much less any substantial question of law to interfere with the judgment and decree of the lower Appellate Court. The Second Appeals are liable to be dismissed. Accordingly, the same are dismissed. However there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is also dismissed.