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2017 DIGILAW 451 (MAD)

Lakshmi v. K. N. S. Nammalvar

2017-02-21

TEEKAA RAMAN

body2017
JUDGMENT : Teekaa Raman, J. 1. The unsuccessful plaintiffs are the appellants herein. 2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court. 3. The plaintiffs filed the suit, in O.S. No. 39 of 1999, before the learned District Munsif, Kovilpatti, for the relief of declaration and injunction. 4. After contest, the learned District Munsif, Kovilpatti, by Judgment and Decree, dated 22.01.2003, dismissed the suit. 5. Aggrieved by the Judgment and Decree passed by the learned District Munsif, Kovilpatti, the plaintiffs preferred an appeal, in A.S. No. 22 of 2003, before the learned Subordinate Judge, Kovilpatti. 6. After contest, the learned Subordinate Judge, Kovilpatti, by Judgment and Decree, dated 12.11.2005, dismissed the appeal and confirmed the Judgment and Decree passed by the learned District Munsif, Kovilpatti. 7. Challenging the correctness of the Judgment and Decree passed by the learned Subordinate Judge, Kovilpatti, the unsuccessful plaintiffs have preferred the present second appeal. 8. The brief averments of the plaint that are necessary to decide this appeal are as follows: The suit property and other properties were initially owned and possessed by one Lakshmi Ammal, wife of Gopalsamy. On 15.09.1943, the said Lakshmi Ammal settled the said properties to her daughter's sons, namely, Seenivasan, Alavandar, Gopalsamy and Nammalvar. During April, 1969, they had orally partitioned the said properties and by which, the suit property and other properties were allotted to Gopalsamy. He died intestate leaving the plaintiffs as his legal heirs. They are enjoying the said properties. The first defendant had sold the properties allotted to him under the oral partition and spent the sale consideration also. But, he had requested for some shares in the suit property. Since the plaintiffs refused the same, the first defendant trespassed into the suit property by breaking the lock of the suit property. Hence, the suit. 9. The brief averments of the written statement filed by the defendants that are necessary to decide this appeal are as follows: The suit filed by the plaintiffs is not maintainable on legal and factual aspects. The defendants are in possession and enjoyment of the suit property and other properties. As per the Settlement Deed, dated 15.09.1943, Seenivasan, Alavandar and Gopalsamy had never enjoyed the suit property. It is false to state that the suit property was allotted to Gopalsamy under the oral partition. The defendants are in possession and enjoyment of the suit property and other properties. As per the Settlement Deed, dated 15.09.1943, Seenivasan, Alavandar and Gopalsamy had never enjoyed the suit property. It is false to state that the suit property was allotted to Gopalsamy under the oral partition. It is an admitted fact that Gopalsamy died intestate leaving the plaintiffs as legal heirs. He started to live in Chennai 40 years back itself. He has no share in the suit property. Though the properties stated in the Settlement Deed, dated 15.09.1943, stood in the name of Seenivasan, Alavandar, Gopalsamy and Nammalvar, the said Alavandar and Gopalsamy started to live in Chennai 40 years back. The said Seenivasan, Alavandar and Gopalsamy orally released their shares in the suit property and other properties in favour of the first defendant. Since then, the second defendant is in possession and enjoyment of the same. The plaintiffs, who had never raised any objections when Gopalsamy was alive, have now filed the suit. The said Alavandar, who was a party in the Settlement Deed, has not been impleaded as a party to the suit and hence, the suit is liable to be dismissed. 10. Based upon the above pleadings, the Trial Court had framed four issues for consideration. 11. On the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A24 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B16 were marked. 12. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs have not established their case properly and hence dismissed the suit. 13. As stated supra, the unsuccessful plaintiffs preferred first appeal in A.S. No. 22 of 2003, before the learned Subordinate Judge, Kovilpatti and before the First Appellate Court Exs.A25 to A27 were marked on the side of the appellants as additional documents and the learned First Appellate Judge, after contest, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Trial Judge. Hence, the second appeal. 14. Hence, the second appeal. 14. At the time of admission, the following substantial questions of law were framed for consideration: (i) Whether the findings of the Courts below are vitiated by failure to consider the evidence of P.W.1 corroborated by Exs.A9 and A10 and A3 to A7 especially when the respondents failed to establish the oral release? And (ii) Whether the Courts below is correct in not granting the relief of injunction after having found that the appellants are entitled to their share in the property as heirs of Gopalsamy one of the donee's under Ex.A1? 15. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents 2 to 7 and perused the records. 16. The appellants/plaintiffs filed the suit for declaration of title and recovery of possession of the suit property from the defendants. The suit property is a portion of house. The plaint proceeds on the basis that the suit property along with other properties were originally belonged to Lakshmi Ammal, who is the wife of Gopalsamy (senior Gopalsamy) and she settled the said properties in favour of her grandsons, namely, Seenivasan, Alavandar, Gopalsamy and Nammalvar. Thereafter, during April, 1969, there was an oral partition among them and the properties have been divided among themselves and it is a specific case that in the said oral partition, a portion of the house in the suit property was allotted to Gopalsamy and he used the same whenever he and his family members visited the native village and after his demise, his wife and daughter have filed the suit seeking the relief as stated above. 17. Per contra, the defendants filed a written statement stating that the appellants/plaintiffs are not entitled to the relief sought for and as per the Settlement Deed, dated 15.09.1943, the other brothers have not enjoyed the suit property and among other things, they have specifically averred that it is false to state that the suit property was not allotted to Gopalsamy under the oral partition and he has no share in the suit property. 18. After examination of both oral and documentary evidence, the Trial Court came to the conclusion that the suit property is one of the properties covered under Ex.A1 Settlement Deed executed by the grandmother Lakshmi Ammal in favour of her four grandsons. 18. After examination of both oral and documentary evidence, the Trial Court came to the conclusion that the suit property is one of the properties covered under Ex.A1 Settlement Deed executed by the grandmother Lakshmi Ammal in favour of her four grandsons. Though D.W.1 has admitted that there was an oral partition, he has specifically denied that the suit property was not allotted to the share of Gopalsamy, who is the husband of the first plaintiff and father of the second plaintiff and he has no share in the suit property. Both the Trial Court as well as the First Appellate Court, after going into the evidence of D.Ws.1 and 2 coupled with Exs.A1 and A2 and B1 to B16, have gave a categorical finding that the appellants/plaintiffs, who had pleaded oral partition, have not proved the same in the manner known to law nor they have proved whether the suit property was allotted to the share of Gopalsamy or not? If so, what portion was allotted to him. Further, non-examination of one of the living brothers, namely, Alavandar was also cited by the Trial Court. In short, both the Courts below have categorically held that oral partition in respect of the suit property as alleged by the appellants/plaintiffs has not been proved in the manner known to law and no document has been filed before the Court to substantiate the fact that Gopalsamy was allotted share in the suit property and accordingly, rejected the relief of declaration of title and recovery of possession as well. 19. The above stated two substantial questions of law have been framed at the time of admission of this appeal. 20. 19. The above stated two substantial questions of law have been framed at the time of admission of this appeal. 20. The learned counsel for the appellants/plaintiffs would contend that the oral evidence of D.W.1 coupled with Exs.A3 to A7 proves the case of the appellants/plaintiffs that there was an oral partition among the four brothers and further, the oral evidence of D.W.1 coupled with Exs.A11 to A24 proves the fact that the eldest brother, namely, Seenivasan, who had also share in the suit property, was residing in the house bearing Door No. 126 and D.W.1 has admitted, in the cross-examination, that under Ex.A1 Settlement Deed, the house mentioned therein is the subject matter of the suit property and further submitted that in Exs.A25 and A27, which were marked before the Lower Appellate Court, the name of Gopalsamy has been mentioned, which goes to show that the suit property has been jointly allotted to Seenivasan, Alavandar and Gopalsamy. 21. This Court has given its anxious consideration to the contentions of the learned counsel for the appellants/plaintiffs and on perusal of the evidence of Exs.A3 to A7 along with evidence of D.W.1, this Court finds that the first defendant Nammalvar dealt with some of the properties and sold it under Exs.A3 to A7. However, that is not the subject matter of the suit. At this juncture, it is relevant to refer the plaint schedule, which reads as follows: xxx xxx xxx xxx xxx 22. According to the plaintiffs, the door number of the suit property is 126. 23. On perusal of Exs.A9 and A10, which have been marked during the cross-examination of D.W.1, it is seen that Ex.A9 is the Voters Enrolment Sheet for the Legislative Assembly of Kovilpatti, wherein at Serial No. 1781, in respect of Door No. 126A, the voters' name have been mentioned as Nammalvar Naicker, Andalammal, Seenivasan, Rajasekar and Vijayalakshmi and Ex.A10 is the Property Tax Demand Register issued by Kovilpatti Taluk of Tuticorin District, for the years 1998-1999, 1999-2000 and 2000-2001, which go to show that Door No. 126/2 stands in the name of Seenivasan, while 126A/2 stands in the name of Nammalvar. Therefore, this Court finds hard to accept the contentions of the appellants/plaintiffs that a portion in the suit property was allotted to Gopalsamy, while Exs.A9 and A10 clearly demonstrate the fact that Seenivasan and Nammalvar were the resident of the said house by paying property tax and also their names are reflected in the Electoral Roll Enumeration List published by the Government of Tamil Nadu. It remains to be stated that one of the brothers, namely, Seenivasan, who died issueless, was residing along with the first defendant Nammalvar also stands fortified from Ex.A10 Property Tax Demand Register. Though Ex.A9 shows that the first defendant Nammalvar was residing in Door No. 126A, that does not go to the extent of saying that it belongs to the appellants/plaintiffs in the absence of any independent document or revenue document to support their case that Door No. 126 was allotted to her husband Gopalsamy. 24. At this juncture, it is relevant to state that the appellants/plaintiffs have come forward with the specific case that the suit property, as extracted above, was allotted to the share of Gopalsamy in the oral partition said to have been taken place during the month of April, 1969. For almost 30 years, no suit has been filed by Gopalsamy during his lifetime. After his demise, the appellants/plaintiffs alleged that the first defendant has trespassed into the suit property by breaking the lock of the suit property. The defendants filed written statement specifically denying the averment that the suit property was allotted to Gopalsamy and therefore, the appellants/plaintiffs, who have come forward with the plea of oral partition have to substantiate their plea that there was an oral partition in the year 1969 and in the said partition, the suit property was allotted to the share of Gopalsamy. However, to the dismay, there is no scrap of documentary evidence placed by the appellants/plaintiffs before the Courts below to substantiate the said plea. 25. Per contra, marking of Exs.A9 and A10 through D.W.1 goes to show that the first defendant is residing in Municipal Door No. 126A/2, while his brother Seenivasan, who died issueless, was residing in 126/2. However, to the dismay, there is no scrap of documentary evidence placed by the appellants/plaintiffs before the Courts below to substantiate the said plea. 25. Per contra, marking of Exs.A9 and A10 through D.W.1 goes to show that the first defendant is residing in Municipal Door No. 126A/2, while his brother Seenivasan, who died issueless, was residing in 126/2. So also Ex.B1 Family Card issued to the first defendant duly stands corroborated by Exs.A9 and A10 and hence, based upon the evidence of D.W.1 and documentary evidence of Exs.A9, A10 and B1, the Trial Court has come to the conclusion that the first defendant and his brother Seenivasan, who died issueless, were residing in Door No. 126A/2 and 126/2 and there is no document from the appellants/plaintiffs to substantiate the plea of oral partition and by which, the suit property was said to have allotted to the share of Gopalsamy and if so, what portion was allotted to him. There is no legally acceptable evidence. There is no dispute with regard to the fact that the first plaintiff is the widow of Gopalsamy and the second plaintiff is his daughter. It is to be stated that the appellants/plaintiffs, who have specifically averred that there was an oral partition among Gopalsamy, Alavandar, Seenivasan and Nammalvar and of whom, Seenivasan died issueless and one of the brothers, namely, Nammalvar is the first defendant. Admittedly, Alavandar, who is the another brother, is very much alive. However, for the reasons best known, the appellants/plaintiffs have not examined the said Alavandar to elicit the alleged factum of oral partition as projected by them. It remains to be stated that neither of the plaintiffs have entered the witness box to substantiate their plea. P.W.1 is the brother of the first plaintiff. In other words, the appellants/plaintiffs, who have averred the oral partition have not entered the witness box to depose evidence in support of their contentions or examined Alavandar to substantiate their plea of oral partition, which assumes more significance. 26. P.W.1 is the brother of the first plaintiff. In other words, the appellants/plaintiffs, who have averred the oral partition have not entered the witness box to depose evidence in support of their contentions or examined Alavandar to substantiate their plea of oral partition, which assumes more significance. 26. Both the Courts below have, after analysing the oral evidence of D.W.1 and Exs.A9 and A10 coupled with Exs.A3 to A7 came to the conclusion that though as per Ex.A1 the suit property and other properties have been devolved upon the four brothers and they have been divided among themselves, there is no scrap of evidence to show that the subject matter of the suit property was allotted to Gopalsamy and what portion was allotted to him. As stated supra, Exs.A9 and A10 go to show that in the house having Door Nos.126/2 and 126A/2, Seenivasan, who died issueless and Nammalvar/first defendant were residing and there is no evidence to show that this property either in full or in part was allotted to Gopalsamy as alleged by the appellants/plaintiffs. 27. The learned counsel for the appellants/plaintiffs drawn the attention of this Court to Exs.A25 to 27 marked before the First Appellate Court. On perusal, it is seen that pending appeal, the appellants/plaintiffs filed interlocutory application, under Order 41, Rule 27 C.P.C., to receive additional documents, namely, FMB Sketch in respect of Survey Nos. 960/38 and 42, Patta No. 317 in respect of Survey No. 960/42 and Patta No. 601 in respect of Survey No. 960/38, wherein the name of Gopalsamy is found place. 28. The First Appellate Court has taken into consideration of the additional documents that were received at the first appeal stage and come to the conclusion that though these Pattas have been produced, no link document to show that these Exs.A25 to A27 relate to the suit property has been produced. In fact, the Lower Appellate Court has discussed the matter in detail and held that though the appellants/plaintiffs filed additional documents, they have not filed any document or let in evidence to correlate the same with the suit property either by door number or by survey number. In fact, the Lower Appellate Court has discussed the matter in detail and held that though the appellants/plaintiffs filed additional documents, they have not filed any document or let in evidence to correlate the same with the suit property either by door number or by survey number. In the absence of any correlation and since no survey number has been mentioned in the plaint schedule so also in Exs.A25 to 27 no door number has been mentioned, this Court is of the view that the findings of the Lower Appellate Court that for want of correlation with the suit property, Exs.A25 to A27 cannot advance the case of the appellants/plaintiffs is well considered and well merited and it does not warrant interference by this Court. 29. As stated supra, though as per Ex.A1 the suit property and other properties have been devolved upon the four brothers and they have been divided among themselves, which property was allotted to whom and whether the suit property was allotted to Gopalsamy and if so, what portion have not been projected by the appellants/plaintiffs in the manner known to law and thus, both the Courts below have concurrently held that the appellants /plaintiffs failed to prove the oral partition among the brothers and the suit property was allotted to Gopalsamy in that alleged oral partition and therefore, the appellants/plaintiffs are not entitled to the relief of declaration of title. Further, both the Courts below have held that based upon Exs.A9 and A10, the first defendant and Seenivasan were alone the resident of the suit property and in the absence of any title to the suit property by the appellants/plaintiffs, they are not entitled to the relief of recovery of possession. These findings of the Courts below are well considered and well merited and the same does not warrant interference by this Court. 30. For the reasons stated in the preceding paragraphs, both the substantial questions of law are held against the appellants/plaintiffs and the appeal is devoid of merits and it is liable to the dismissed. 31. In the result, the second appeal is dismissed and the Judgment and Decree, dated 12.11.2005, made in A.S. No. 22 of 2003, by the learned Subordinate Judge, Kovilpatti, confirming the Judgment and Decree, dated 22.01.2003, made in O.S. No. 39 of 1999, by the learned District Munsif, Kovilpatti, are confirmed. No costs.