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2017 DIGILAW 1276 (MAD)

Mohan v. Ponnan @ Muniraj

2017-04-27

M.S.RAMESH, R.SUBBIAH

body2017
JUDGMENT : R. Subbiah, J. This appeal has been filed as against the judgment and decree dated 12.11.2010 passed in O.S.No.18 of 2009, wherein and whereby the learned Principal District Judge, Dharmapuri dismissed the suit filed by the appellants in respect of the relief for declaration of the Sale Agreement dated 13.02.2008 entered into between the respondents 2 & 3 as null and void, and decreed the suit in respect of the relief of partition of the suit schedule property with regard to the share of the 1st respondent alone. 2. The appellants herein are the plaintiffs and the respondents herein are the defendants before the Trial Court. For easy reference, hereinafter the parties will be referred to as per their rankings in the suit. 3. The case of the plaintiffs, in brief, is as follows :- 3-1. The plaintiffs are the children of the 1st defendant Ponnan @ Muniraj. Originally the suit schedule properties belonged to one Muniammal. The said Muniammal is the wife of one Rangappa Chetty. The said Muniammal executed a Will dated 28.02.1948 in favour of her son Perumal. The 1st defendant is the son of the said Perumal. After the death of the said Muniammal, as per the Will, the said Perumal, who is the father of the 1st defendant, got the suit schedule property and he had also taken possession of the property. The said Perumal married one Chinnammal. The 1st defendant was born to them. When the 1st defendant was 3 years old, his father Perumal died. After the death of the said Perumal, his wife Chinnammal (mother of the 1st defendant) created problems to her father-in-law and eloped with one Palani and they started to live as husband & wife at Dhadhagapatti in Salem. The 2nd defendant Durai and one Rajendran were born to the said Chinnammal and Palani. Since the said Chinnammal eloped with the said Palani, the grandfather of the 1st defendant took care and custody of the 1st defendant. Due to the cohabitation between the Chinnammal and Palani, the said Chinnammal ceased of her legal right and thus, lost all rights over her first husband's properties. The said Chinnammal and her second husband Palani and their children viz., the 2nd defendant and one Rajendran were living at Dhadhagapatti. 3-2. Due to the cohabitation between the Chinnammal and Palani, the said Chinnammal ceased of her legal right and thus, lost all rights over her first husband's properties. The said Chinnammal and her second husband Palani and their children viz., the 2nd defendant and one Rajendran were living at Dhadhagapatti. 3-2. While so, some 33 years ago, at the time of 1st defendant's marriage, the 1st defendant invited his mother Chinnammal to attend the marriage; the said Chinnammal came to Nallampalli, along with 2nd defendant Durai to attend the marriage. After the marriage, the 1st defendant's mother Chinnammal as well as the 2nd defendant stayed with the 1st defendant at Nallampalli. Subsequently, after some time, the 1st defendant's mother Chinnammal died. Now, the 2nd defendant is also claiming that he is also a son of late Perumal and thereby, attempting to alienate the suit schedule property in favour of the 3rd defendant. According to the plaintiffs, the 2nd defendant is not entitled to any share in the suit schedule property. In fact, when the 2nd defendant was a minor, he was involved in a criminal case and he was convicted by the Juvenile Court at Salem and sent to a Rehabilitation Home at Chengalpet. In the records of the criminal case, name of the father of the 2nd defendant was mentioned only as Palani. The plaintiffs are entitled to 1/8 share in the entire suit schedule property. While so, the 2nd defendant, who has no right over the suit schedule property, has entered into a sale agreement with the 3rd respondent on 13.02.2008 in respect of 1/2 share of the suit schedule property. Hence, the plaintiffs have filed the suit for the following reliefs - (a) dividing the suit properties into 8 (eight) equal shares and allot 7 (seven) such shares to the plaintiffs with separate possession and pass preliminary and final decree. (b) declaring the sale agreement dated 13.02.2008 entered between the 2nd and 3rd defendant as null and void. (c) declare that the 2nd defendant is not legal heir of the deceased said Perumal. (d) granting permanent injunction restraining the defendants 2 & 3 and their men from any way making encumbrance or interfering with the plaintiffs peaceful possession and enjoyment of the suit property. (e) awarding the cost of the suit to the plaintiffs by the defendants (f) granting such other relief or reliefs" 4. (d) granting permanent injunction restraining the defendants 2 & 3 and their men from any way making encumbrance or interfering with the plaintiffs peaceful possession and enjoyment of the suit property. (e) awarding the cost of the suit to the plaintiffs by the defendants (f) granting such other relief or reliefs" 4. Before the Trial Court, the 1st defendant was set exparte. The case of the plaintiffs was resisted by the 2nd defendant by filing a written statement, stating that it is incorrect to state that the 1st defendant alone is the son of the said Perumal and Chinnammal. It is also false to state that the said Perumal died, while the 1st defendant was three years old. The 2nd defendant was also born to the said Perumal and Chinnammal. The 1st defendant is the brother of the 2nd defendant. The allegation made in the plaint that the Chinnammal had eloped with one Palani and was living with him at Dhadgagapatti in Salem, is utter falsehood. It is equally false to state that the 2nd defendant and one Rajendran are the legal heirs of the said Chinnammal and Palani. The allegation that Chinnammal eloped with Palani was purposely introduced by the plaintiffs to lend support to the case of the plaintiffs, in order to deny the rights of the 2nd defendant over the suit schedule property. The defendants 1 & 2 were living along with their mother Chinnammal till her death. As the sons of the deceased Chinnamal and Perumal, the defendant 1 & 2 are having equal right over the suit property. The 2nd defendant has sold only his 1/2 share in the suit property, situated on the southern portion of the property, to the 3rd defendant. The 2nd defendant has no objection for the plaintiffs to get a decree for partition in respect of the remaining 1/2 share on the northern side of the property. Thus, the 2nd defendant sought for dismissal of the suit. 5. On the above pleading, the Trial Court has framed the following issues :- (1) Whether the plaintiffs are entitled to 7/8 shares in suit properties as prayed for? (2) Whether the sale agreement deed dated 13.02.2008 is null and void? (3) Whether the plaintiffs are entitled to get declaratory decree in respect of that the 2nd defendant is not a legal heir of the deceased Perumal? (2) Whether the sale agreement deed dated 13.02.2008 is null and void? (3) Whether the plaintiffs are entitled to get declaratory decree in respect of that the 2nd defendant is not a legal heir of the deceased Perumal? (4) Whether the plaintiffs are entitled to get permanent injunction in respect of suit properties? (5) Is it true to say that the 2nd defendant has executed the sale deed in favour of the 3rd defendant dated 29.05.2009 and it is binding on plaintiffs and 1st defendant? (6) Is it true to say that the deceased Perumal said that the 1st and 2nd defendant have no right over the 2nd schedule of suit property? (7) Whether the suit is hit under Order 2 Rule 2 of CPC? (8) To what any other relief is entitled to? 6. Before the Trial Court, on the side of the plaintiffs, the 1st plaintiff examined himself as P.W.1, besides examining one Dhanasekara Pandian as P.W.2 and four documents were marked as Ex.A.1 to Ex.A.4. On the side of the defendants, the 2nd defendant examined himself as D.W.1, besides examining three other witnesses as D.W.2 to D.W.4 and marked 25 documents as Ex.B.1 to Ex.B.25. 7. After considering both the oral and documentary evidence adduced on either side, the Trial Court has partly allowed the suit in favour of the plaintiffs to the effect that the plaintiffs are entitled to 7/8 shares in the 1st defendant's 1/2 share in the suit schedule property and granted permanent injunction with regard to the 1/2 of share of the 1st defendant in the suit schedule property, and dismissed the prayer of the plaintiffs in respect of declaration reliefs, on the following reasons - (i) the plaintiffs failed to prove that the 2nd defendant is not the legal heir of the deceased Perumal. (ii) the oral partition pleaded by the 2nd defendant is true since the 1st defendant did not appear and contest the oral partition put forward by the 2nd defendant. (iii) in the oral partition the southern half share in the suit property was allotted to the 2nd defendant and the northern half share in the suit property was allotted to the 1st defendant. (iv) since the 3rd defendant purchased the part of the suit property from the 2nd defendant under Ex.A.3, Sale Deed, the same need not be declared as null and void. (iv) since the 3rd defendant purchased the part of the suit property from the 2nd defendant under Ex.A.3, Sale Deed, the same need not be declared as null and void. (v) the plaintiffs are entitled to partition of 7/8 shares in the northern half share in the suit property. Aggrieved over the said judgment and decree passed by the Trial Court, the plaintiffs have preferred the present appeal. 8. The learned counsel appearing for the appellants/plaintiffs submitted that the suit schedule property originally belonged to their paternal great-grandmother Muniammal. The said Muniammal settled her properties in favour of her son Perumal by way of a Will dated 28.02.1948. The said Perumal married one Chinnammal and the 1st defendant was born to them. The 1st defendant alone is the legal heir of the said Perumal. When the said Perumal died, the 1st defendant was only three years old. After the death of the said Perumal, his wife Chinnammal (mother of the 1st defendant) eloped with one Palani and stayed at Dhadhagapatti in Salem and gave birth to the 2nd defendant and one Rajendran. The said Palani is the father of the 2nd defendant. Therefore, the 2nd defendant cannot be considered as a legal heir of the said Perumal, father of the 1st defendant. The 1st defendant alone, who is the father of the plaintiffs, is the legal heir of the said Perumal. Therefore, the 2nd defendant has no right over the suit schedule property. But, in spite of the same, the 2nd defendant has entered into a sale agreement on 13.02.2008 with the 3rd respondent in respect of 1/2 share of the suit property. 9. It is further submitted by the learned counsel appearing for the appellants/plaintiffs that in order to prove that the 2nd defendant is the son of the said Palani and not the legal heir of the said Perumal, on the side of the plaintiffs a certificate from the Rehabilitation Home at Chengalpet was marked as Ex.A.4 and one Dhanasekar Pandian, Superintendent of the Rehabilitation Home at Chengalpet, was examined as P.W.2. In this regard, the learned counsel for the appellant would submit that when the 2nd defendant was a minor, he was involved in a criminal case and he was convicted by the Juvenile Court and sent to Rehabilitation Home at Chengalpet. In this regard, the learned counsel for the appellant would submit that when the 2nd defendant was a minor, he was involved in a criminal case and he was convicted by the Juvenile Court and sent to Rehabilitation Home at Chengalpet. The register maintained in the said Rehabilitation Home was marked as Ex.A.4, in which the name of the father of the 2nd defendant was mentioned as Palani. The said document would go to show that the 2nd defendant is not the legal heir of the said Perumal. Further, the Superintendent of the said Rehabilitation Home was examined as P.W.2 to speak about the contents in Ex.A.4. But, without considering Ex.A.4 and evidence of P.W.2, by placing reliance upon the documents produced on the side of the 2nd defendant, which are self-serving in nature, the Trial Court has erroneously rejected the case of the plaintiffs, holding that the plaintiffs have failed to prove that the 2nd defendant is not the son of the said Perumal. 10. In this regard, the learned counsel appearing for the appellants/plaintiffs further submitted that the burden of proving the fact is only on the person, who claims a particular right and a person cannot be called upon to prove the negative. It is for the person, who affirms particular facts, to prove the same by letting in positive evidence. In support of his contention, the learned counsel for the appellants/plaintiffs has also relied upon the judgment reported in 2006 (4) MLJ 1758 [Vasanthi vs. Pechianna]. 11. Further, the learned counsel appearing for the appellants submitted that according to Section 112 of the Evidence Act, the paternity of the child could be conclusively presumed if the child was born during the existence of the marriage. In the instant case, the 2nd defendant failed to produce his birth certificate and the death certificate of the said Perumal to prove that he was born while the said Perumal was alive and during the existence of the marriage between Perumal and Chinnammal. 12. As a next fold of submission, the learned counsel appearing for the appellants submitted that the Trial Court has also rendered a finding, as though an oral partition was effected between the 1st defendant and the 2nd defendant. In fact, the 2nd defendant did not plead any oral partition in his written statement. 12. As a next fold of submission, the learned counsel appearing for the appellants submitted that the Trial Court has also rendered a finding, as though an oral partition was effected between the 1st defendant and the 2nd defendant. In fact, the 2nd defendant did not plead any oral partition in his written statement. He has also not proved the oral partition by sufficient oral and documentary evidence. Above all, the 2nd defendant in his cross-examination admitted that there was no oral partition effected between himself and the 1st defendant till the year 2009 as well as after the filing the present suit. The admission of the 2nd defendant is the best evidence to prove that there was no oral partition of the suit property. But, inspite of the same, by rendering an erroneous finding that there was an oral partition between the defendants 1 and 2, the Trial Court dismissed the declaration prayer of the plaintiffs. Thus, the learned counsel for the appellants/plaintiffs submitted that by setting aside the findings of the Trial Court, the suit has to be decreed in respect of unallowed portion also. 13. Countering the submissions made by the learned counsel appearing for the appellants/plaintiffs, the learned counsel appearing for the 2nd respondent/D2 submitted that it is false to state that the 2nd defendant was born to one Palani. Only in order to defeat the right of the 2nd defendant, the plaintiffs have introduced a false case as though the 2nd defendant was born to one Palani, through the mother of the 1st defendant viz., Chinnammal. In order to prove that the 2nd defendant is the brother of the 1st defendant and born to same mother and father, the defendants have filed several document particularly Ex.B.Nos.9, 10, 18, 19, 22, 23 & 24, which are all revenue records and the contents of the said documents would show that the defendants 1 & 2 are brothers. Apart from the above, the 2nd defendant has also produced the voter card and voter list issued by the Election Commission, which were marked as Ex.B.12 & 13, which would also show that the father of the defendants 1 & 2 are one and the same person viz., Perumal. 14. Apart from the above, the 2nd defendant has also produced the voter card and voter list issued by the Election Commission, which were marked as Ex.B.12 & 13, which would also show that the father of the defendants 1 & 2 are one and the same person viz., Perumal. 14. Further, the learned counsel for the 2nd respondent has also invited the attention of this Court to the xerox copy of the judgment and decree passed in A.S.No.12/2007, Xerox copy of the written statement, vakalats, plaint, interlocutory petition and certified copy of the judgment in O.S.No.98/2007 respectively, and certified copy of the decree in C.M.A.No.9/2008, which were marked as Ex.B.1 to B.8 and pertaining to the legal proceedings initiated by the 1st defendant as against the 2nd defendant, to show that the 2nd defendant is the son of the said Perumal. Relying upon the said documents, the learned counsel for the 2nd defendant submitted that the 2nd defendant had established the fact that the defendants 1 & 2 are the brothers and they were born to the same person viz., Perumal. Considering all these facts, the Trial Court by correctly rejecting the case projected by the plaintiffs, has dismissed the prayer of declaration made by the plaintiffs. 15. With regard to the finding rendered by the Trial Court that there was an oral partition between the defendants 1 & 2, the learned counsel for the 2nd respondent/D2 submitted that it is for the 1st defendant to deny that there was no oral partition between him and the 2nd defendant, but the 1st defendant has not chosen to appear before the Trial Court and he was set ex-parte. 16. In fact, the 1st defendant herein had earlier filed a suit against the 2nd defendant herein in O.S.No.91 of 2002 before the District Munsif Court at Dharmapuri for declaration and injunction for the very same property and the said suit was dismissed on merit, against which the 1st defendant filed an appeal in A.S.No.12 of 2007 before the Sub-Court, Dharmapuri and the same was dismissed on 30.03.2009 on merits, against which no second appeal was filed. 17. 17. Similarly, in the year 2007, based on the oral partition, the 2nd defendant had earlier filed a suit in O.S.No.98/2007 against the 1st defendant and the plaintiff 1 & 3 herein; accepting the case of the 2nd defendant that there was an oral partition between the defendants 1 and 2 therein, the District Munsif Court at Dharmapuri has also decreed the suit in O.S.No.98 of 2007. 18. Now, the plaintiffs/appellants herein, colluding with their father 1st defendant, have filed the present suit in O.S.No.18 of 2009 with the false claim, by suppressing all the earlier court proceedings, alleging that the 2nd defendant is not a son of the said Perumal and not the brother of the 1st defendant. However, considering all the above facts, the Trial Court has dismissed the declaration prayer sought for by the plaintiff. Absolutely, there is no need for reversing the judgment of the trial Court dismissing the declaration prayer of the plaintiffs. Thus, the learned counsel for the 2nd defendant sought for dismissal of the appeal. 19. But, by way of reply, the learned counsel appearing for the plaintiffs/appellants submitted that it is incorrect to state that in the earlier legal proceedings, there was a finding to the effect that there was an oral partition between the defendants 1 and 2. In fact, in O.S.No.98/2007 which was filed by the 2nd defendant before the District Munsif Court at Dharmapuri, the 1st defendant, father of the plaintiffs herein, had filed a specific written statement denying the case projected by the 2nd defendant that there was an oral partition between him and the 2nd defendant. Further, the learned counsel for the plaintiffs submitted that since the 2nd defendant in his evidence had categorically admitted that there was no oral partition effected till the year 2009, based on the said piece of evidence, the lower Court ought to have decreed the suit in respect of the declaration prayer also. Further, the learned counsel appearing for the plaintiffs submitted that during the pendency of the suit, the 2nd defendant has sold 1/2 portion of the property on 29.05.2009 under Ex.A.3 to the 3rd defendant, who was aware of the pendency of the suit. Hence, the 3rd defendant cannot be considered as a bona fide purchaser. The 3rd defendant cannot purchase the property as the property has not been partitioned. Hence, the 3rd defendant cannot be considered as a bona fide purchaser. The 3rd defendant cannot purchase the property as the property has not been partitioned. Thus, the learned counsel for the appellants/plaintiffs sought for setting aside the findings of the Trial Court and consequently, to decree the prayer for declaration also. 20. We have given our anxious consideration to the submissions made on either side and perused the materials available on record. 21. The plaintiffs are the children of the 1st defendant. The father of the plaintiffs was born to one Perumal and Chinnammal. It is further case of the plaintiffs that when their father 1st defendant was three years old, his father died and after sometime, his mother Chinnammal eloped with one Palani. The 2nd defendant and one Rajendran were born to the said Chinnammal and Palani. But, now, the 2nd defendant is claiming himself as the brother of the 1st defendant born to the same father Perumal, entered into a sale agreement with the 3rd respondent in respect of 1/2 share of the suit schedule property situated in S.No.27/1 & 27/2 at Nallampalli Village, Dharmapuri District. Hence, the plaintiffs, who are the children of the 1st defendants, have come forward with the present suit for the above mentioned prayers, contending that the 2nd defendant is not the legal heir of the said Perummal and as such, he has no right in the suit schedule property. 22. But, the Court below has decreed the suit in part, by granting a decree in favour of the plaintiffs in respect of the first prayer alone, to the effect that the plaintiffs are entitled to 7/8 share in the 1st defendant's 1/2 share in the suit schedule property, by assigning reason that the revenue records filed on the side of the 2nd defendant would show that northern side of the suit property was allotted to the 1st defendant and the 2nd defendant has got the southern portion of the suit property; therefore, if any partition relief is granted to the plaintiffs, they are entitled for their share only in respect of their father's share alone; thus, the Trial Court partly decreed the first prayer and dismissed the rest of the prayers claiming declaration, stating that the plaintiffs have miserably failed to establish that the 2nd defendant is not the legal heir of the said Perumal. 23. 23. Now, in the present appeal, it is the submission of the learned counsel appearing for the plaintiffs that in order to prove that the 2nd defendant is not the son of the said Perumal and he was born to one Palani through Chinnammal i.e., the mother of the 1st defendant, the plaintiffs have filed the extract of the Register maintained in rehabilitation Home at Chengalpet, which was marked as Ex.A.4. By relying upon Ex.A.4, it was contended by the learned counsel for the plaintiffs that when the 2nd defendant was a minor, he was convicted in a criminal case and sent to Rehabilitation Home and in the register maintained in the Rehabilitation Home, the name of the father of the 2nd defendant was mentioned as Palani. To speak about the same, the Superintendent of the Rehabilitation Home was examined as P.W.2; but, the Court below did not consider the same in a proper perspective. 24. But, from a perusal of the judgment of the Trial Court, We find that the Trial Court has considered the said document Ex.A.4 and rejected the same, on the ground that in Ex.A.4, the 2nd defendant's native place was mentioned as Nallampalli; but, it is the case of the plaintiffs that the 2nd defendant was residing along with his mother at Dhathagapatti at Salem; therefore, the said document cannot be relied upon; thus, the Trial Court rejected the said document viz.,Ex.A.4. Further, though the Superintendent of the Rehabilitation Home, as P.W.2, has spoken about the contents of the document, his evidence is also not sufficient enough to come to the conclusion that the name mentioned in the said document is only referable to the 2nd defendant. On the other hand, on the side of the 2nd defendant, he has filed Ex.B.9, 10, 12, 17, 18, 22, 23 & 24, which are all revenue records, in which it has been stated that the defendants 1 & 2 are brothers and they are the sons of one Perumal. Further, Ex.B.13, 19 & 20 are voter card and voter lists issued by the Election Commission, which were marked on the side of the 2nd defendant. In the said documents also, the name of the defendants 1 & 2 were mentioned as the sons of the said Perumal. Further, Ex.B.13, 19 & 20 are voter card and voter lists issued by the Election Commission, which were marked on the side of the 2nd defendant. In the said documents also, the name of the defendants 1 & 2 were mentioned as the sons of the said Perumal. Therefore, the Trial Court by placing reliance on those documents has correctly rejected the case projected by the plaintiffs, holding that they have failed to establish that the 2nd defendant is not the legal heir of the said Perumal. Absolutely We do not find any infirmity in the said findings rendered by the Trial Court. 25. It is the next fold of submission of the learned counsel appearing for the appellants/plaintiffs that the 2nd defendant has executed a sale Deed in favour of the 3rd respondent on 29.05.2009 in respect of a portion of the suit property. According to the learned counsel for the plaintiffs, since the property was not divided, the 2nd defendant has no right to enter into the sale agreement in respect of a portion of the suit property. Moreover, the 3rd defendant cannot purchase a specific portion of the property when admittedly the property was not partitioned. But, in our considered opinion, since the Court has come to the conclusion that the appellants have failed to establish that the 2nd defendant is not the legal heir of the said Perumal, moreover when the documents produced on the side of the 2nd defendant would clearly show that the defendants 1 & 2 are brothers and sons of the same Perumal, the 2nd defendant is also entitled to an equal share in the property as that of the 1st defendant, no significance could be attached to the admission made by the 2nd defendant in his evidence that there was no oral partition till the suit filed in the year 2009, since the share of the 1st defendant in the property is available to the plaintiffs for partition. Moreover, it is also not the case of the plaintiffs that the 2nd defendant has executed the sale deed in favour of the 3rd respondent in respect of entire portion of the suit schedule property. The 2nd defendant has executed the sale deed only in respect of 1/2 share of the suit property. Under such circumstances, We find no infirmity in the sale agreement entered into between the defendants 2 and 3. The 2nd defendant has executed the sale deed only in respect of 1/2 share of the suit property. Under such circumstances, We find no infirmity in the sale agreement entered into between the defendants 2 and 3. Moreover, the revenue records produced on the side of the 2nd defendant would also show that he is already in possession of the southern portion of the suit properties and he entered into the sale agreement in respect of the property which is in his possession. Hence, by considering all these facts, the Trial Court has rightly decreed the suit by allotting 7/8 share to the plaintiffs in the 1/2 share of the first defendant, who is the father of the plaintiffs and dismissed the other prayers of the plaintiffs with regard to declaration. Absolutely, We do not find any infirmity in the findings of the Trial Court, warranting interference from this Court. The appeal is devoid of any merit and the same is liable to be dismissed. In fine, the appeal fails and the said is dismissed. No costs.