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2017 DIGILAW 763 (MAD)

R. Varadhan v. B. Saraswathi

2017-03-23

N.SATHISH KUMAR

body2017
JUDGMENT : N. SATHISHKUMAR, J. 1. Aggrieved over the preliminary decree passed by the learned III Additional Judge, City Civil Court, Chennai, the present appeal came to be filed by the first and fourth defendants. The parties are arrayed as per their own ranking before the trial Court. 2. The plaintiffs have filed the suit for partition and separate possession of their 2/5 share in the schedule property and for a declaration to declare that the settlement deed dated 25.11.2002 executed by the first defendant in favour of the fourth defendant is null and void in so far as plaintiffs 2/5 share in the schedule property. 3. Brief facts of the plaintiffs case is as follows:- The plaintiffs and defendants 1 to 3 are the daughters and son of one Palayammal fourth defendant is the son of first defendant. The suit property was originally owned by Smt. Palayammal @ Saran Palayammal, mother of the plaintiffs and defendants 1 to 3. The said Palayammal died intestate on 1.7.1993, leaving behind her the plaintiffs and defendants 1 to 3 as her heirs. The first and fourth defendants are residing in the suit property and the first defendant with mala-fide intention to defraud the plaintiffs, had executed a settlement deed dated 25.11.2002 in favour of his son-fourth defendant. The said settlement is invalid and not biding on the plaintiffs' share. The plaintiffs being the daughters of Palayammal, are entitled to 2/5 share in the suit property. The plaintiffs being the co-owners of the property are also entitled to joint possession of the same. In spite of several demands made by the plaintiffs for partition, the defendants have not come forward for partition of the property. Hence the plaintiffs issued legal notice dated 29.3.2007. The first defendant declined to do so by a reply dated 9.4.2007. The defendants 2 and 3 also joined hands with the first defendant and sent a reply dated 16.4.2007. Hence, the plaintiffs have come forward with this suit for partition and hand over the possession of the plaintiffs' 2/5 share in the suit property. 4(a). Brief facts of the defendants case is as follows:- The first defendant denied the allegations of the plaintiffs that the suit property is the absolute property of Palayammal alias Saran Palayammal mother of the plaintiffs and defendants 1 to 3. 4(a). Brief facts of the defendants case is as follows:- The first defendant denied the allegations of the plaintiffs that the suit property is the absolute property of Palayammal alias Saran Palayammal mother of the plaintiffs and defendants 1 to 3. It is the contention of the first defendant that he inherited the property from his great grandfather, as the only male legal heir for his great grandfather. All taxes and assessments are made only in the name of the first defendant. His mother never had any legal right to claim ownership of the property. He had invested his own earnings and savings and he had legally executed a settlement deed on 25.11.2002 in favour of his son-4th defendant herein, retaining life-interest for him and his wife. The property liable for partition was an entirely different property bearing Door No. 15/19, Varadapuram 1st Street, Kottur, Chennai-85 and all the legal heirs had received their shares from a builder M/s Babu and Associates, Chennai-34 in October 2005 and had already sold the property. The first defendant is the owner of the property for the last 56 years, by way of birth and succession and has been uninterrupted possession and enjoyment of the property from the date of his birth till date. He has been asserting himself as ostensible owner and he had perfected title by adverse possession. It is the contention of the first defendant that Palayammal never had any title to the suit property and she never purchased the suit property. The suit for partition is not maintainable because the title of Palayammal has not been established by the plaintiffs. The prayer for declaration that the settlement deed dated 25.11.2002 is null and void is not maintainable because the relief is contingent and dependent upon the establishment of title to be vested in Palayammal. Mere legal notice is not substitute for the title. The plaintiffs lack title, possession and legal right to file the suit. The suit has been filed after 15 years after the death of their mother which is barred by limitation. The suit is vexatious lacking support of documents. Hence, he prayed for dismissal of the suit. 4(b). The second and fourth defendants have adopted the written statement filed by the first first defendant. The suit has been filed after 15 years after the death of their mother which is barred by limitation. The suit is vexatious lacking support of documents. Hence, he prayed for dismissal of the suit. 4(b). The second and fourth defendants have adopted the written statement filed by the first first defendant. The third defendant filed her written statement stating that the first defendant have no right to execute the settlement deed and the same is invalid in the eye of law. It is the contention of the third defendant that the plaintiffs were married long time ago and the entire marriage expenses was spent by Late Palayammal. The grandson and granddaughters of Late. Palayammal are the only legal heirs who will inherit her properties. The plaintiff were never in possession of the property and they have no right in law to claim joint possession of the property. In fact the third defendant along with the 1st and 2nd defendants were living jointly in the suit property. The Court fee paid is incorrect. Hence, she prayed for dismissal of the suit. 5. On the basis of the above pleadings, the following issues were framed for consideration by the learned trial Judge:- 1. Whether the plaintiffs are entitled to 2/5 share in the suit property? 2. Whether the suit property is absolute property of the first defendant? If so, the plaintiffs are entitled for partition? 3. Whether the Settlement Deed dated 25.11.2002 is binding on the plaintiffs? 4. Whether the plaintiffs are entitled to declaration to declare the Settlement Deed as null land void? 5. Whether the suit property is the absolute property of Palayammal? 6. To what relief? 6. On the side of the plaintiffs first plaintiff examined herself as PW-1 and documents Ex.A1 to A9 were marked. Ex.A1 is the Settlement Deed dated 25.11.2002 executed by the first defendant in favour of his son fourth defendant; Ex.A2 is the lawyer's notice dated 29.03.2007 sent by the plaintiffs to the first defendant; Ex.A3 is the reply dated 9.4.2007; Ex.A4 is the rejoinder dated 15.4.2007 by the plaintiffs; Ex.A5 is the reply dated 16.4.2007 sent by the defendants 2 and 3; Ex.A6 is the reply dated 19.4.2007 sent by the plaintiffs; Ex.A7 Ex.A8 and A9 are the copy of Encumbrance Certificates in respect of the suit property. 7. 7. On the side of the defendants, the first defendant examined himself as DW-1 and documents Exs.B1 to B8 were marked. Ex.B1 is the Electricity consumption card; Ex.B2 is the receipt for payment of Electricity consumption charges; Ex.B3 is the receipt for payment of tax; Ex.B5 is the card issued by the Chennai Metropolitan Authorities, for consumption of water supply and drainage services; Ex.B6 is the receipt for payment of water supply and drainage service charges; Ex.B7 is the death certificate of Palayammal; Ex.B8 is the Voter enumeration card. 8. On the basis of the oral and documentary evidence and the materials, the learned trial Judge has come to the conclusion that the suit property originally belongs to one Gopal and after his death, it devolved upon his son Ekambaram and after his death, it devolved upon the only legal heir Late Palayammal, mother of plaintiffs and defendants 1 to 3 and after the death of Palayammal, the suit property devolved upon the plaintiffs and defendants 1 to 3 who are her legal heirs. Since Palayammal died intestate the plaintiffs and defendants 1 to 3 are each entitled to 1/5 share in the suit property. Ultimately, the learned trial Judge has passed a preliminary decree for partition of the suit property holding that the plaintiffs are entitled to 2/5 share in the suit property and further holding that the settlement deed executed by the first defendant in favour of the fourth defendant is null and void and not binding on the plaintiffs and defendants 2 and 3. 9. It is the contention of the learned counsel for the appellants that the suit is filed after 6 years of the settlement deed executed by the first defendant in favour of the fourth defendant and 15 years after the death of their mother Palayammal. It is the contention of the learned counsel for the appellants that the first defendant has been all along in possession of the suit property and he had put up construction of house building out of his own earnings and savings and he has been enjoying the property as absolute owner of the same. The plaintiffs and defendants 2 and 3 had never in possession of the suit property. The evidence of PW-1 itself would prove that she had never in possession of the suit property. The ouster can be inferred from the circumstances and pleadings. The plaintiffs and defendants 2 and 3 had never in possession of the suit property. The evidence of PW-1 itself would prove that she had never in possession of the suit property. The ouster can be inferred from the circumstances and pleadings. Therefore, once the plaintiffs are out of possession for more than 35 years, they cannot claim any share in the suit property. The evidence of PW-1 itself clearly show that the plaintiffs had lost their right due to passage of time. All the documents namely Property Tax Assessment, Electricity Consumption Card, Water Supply and Drainage Consumption Card are stand in his name and he has been paying the property tax, electricity consumption charges and water supply and drainage service charges. All these facts clearly show that the plaintiffs are not certainly entitled to any share in the suit property. It is further contention of the learned counsel for the appellants that though the specific plea of ouster is not available in the written statement it can be inferred from the circumstances. Hence, he prayed for allowing the appeal. In support of his arguments he also relied upon the judgment of this Court reported in Sinnaraj Pillai and Others vs. Ramayee Ammal and Another, 1981 Law Weekly 281. 10. Learned counsel for the Respondents submitted that originally the suit property was owned by one Gopal-grandfather of Palayammal and after his demise, the suit property devolved upon his legal heir Ekambaram and after his demise, the property devolved upon his only legal heir Palayammal who is the mother of the plaintiffs and defendants 1 to 3. Admittedly the property was enjoyed by the mother of the plaintiffs and defendants 1 to 3 and till her life time and she had never executed any document in favour of anybody with regard to the suit property. Hence, it is submitted that merely because one of the co-owners is in possession of the suit property, there cannot be adverse possession as against the other co-owners in the absence of plea of ouster in the written statement. It is further contention of the learned counsel for the Respondents that one of the co-owners namely the second defendant is also residing in the suit property. Therefore, the question of adverse possession as against the other co-owners and ouster the other co-owners from the suit property will not arise at all. It is further contention of the learned counsel for the Respondents that one of the co-owners namely the second defendant is also residing in the suit property. Therefore, the question of adverse possession as against the other co-owners and ouster the other co-owners from the suit property will not arise at all. Hence, submitted that the judgment and decree of the learned trial Judge is well balanced and it does not require any interference. 11. In the light of the above submissions, now, the points that arise for consideration are: 1. Whether the plaintiffs are entitled to claim partition in the suit property? 2. Whether the plaintiffs are ousted from the suit property to claim share in the property? 3. Whether the first defendant is the absolute owner of the suit property? 4. To what relief? 12. Points 1 to 4:- The suit has been laid by the plaintiffs for partition and separate possession of their 2/5 share in the suit property and for a declaration to declare that the settlement deed dated 25.11.2002 executed by the first defendant in favour of the fourth defendant is null and void in so far as the plaintiffs 2/5 share in the suit property. It is not in dispute that the plaintiffs and defendants 1 to 3 are daughters and son of one Palayammal. It is the contention of the plaintiffs that the suit property originally came from their ancestors to their mother and their mother was enjoying the property as the absolute owner and since Palayammal died intestate on 1.7.1993, all of them are entitled to have equal shares in the suit property. Therefore, the plaintiffs are entitled to 2/5 share in the suit property. 13. Whereas it is the contention of the first defendant that he is the absolute owner of the suit property by way of inheritance from his great grandfather as he is the only male legal heir to his great grandfather. The plaintiffs had no title to the suit property and the plaintiffs have also not established the title of their mother. Further it is the contention of the first defendant that he is in possession and enjoyment of the property for more than 56 years by putting up construction of pucca house building. The plaintiffs had no title to the suit property and the plaintiffs have also not established the title of their mother. Further it is the contention of the first defendant that he is in possession and enjoyment of the property for more than 56 years by putting up construction of pucca house building. The Property Tax Assessment, Electricity Consumption Card, Water Supply and Drainage Consumption Card are all stand in his name and he has been paying the property tax, electricity consumption charges and water supply and drainage service charges. He had perfected title by way of adverse possession. It is further contention of the first defendant that the suit has been filed after six years from the date of execution of settlement deed by the first defendant in favour of his son fourth defendant and after 15 years from the date of death of his mother and hence the suit is barred by limitation. 14. The first plaintiff-Saraswathy examined herself as PW-1 and in her evidence she has stated that till the death of her mother Palayammal, she was enjoying the property. The first defendant is also residing in the suit property from his birth. She herself admitted that she has filed the present suit after 15 years from the date of death of her mother. 15. The first defendant Varadhan examined himself as DW-1 and in his evidence he has stated that he is residing in the suit property from his birth, for more than 56 years. The plaintiffs are residing elsewhere with their husband and they are not in possession of the suit property. He has developed the property by putting up construction of pucca house building long back. All the records are in his name. Whereas, he has admitted in the cross-examination that originally the property was owned by the grandfather of his mother one Gopal. It is also admitted that after the death of his grandfather, his mother was enjoying the property. His evidence also clearly shows that he also does not have any document to show that the suit property is the absolute property of himself. From the evidence of DW-1 and PW-1, it could be seen that the property in fact originally came from the grandfather of the plaintiffs and defendants to their mother Palayammal and Palayammal was enjoying the property till her death and died intestate. From the evidence of DW-1 and PW-1, it could be seen that the property in fact originally came from the grandfather of the plaintiffs and defendants to their mother Palayammal and Palayammal was enjoying the property till her death and died intestate. Ex.A1-copy of the Settlement Deed dated 25.11.2002 when carefully perused, it could be seen the first defendant had executed a Settlement Deed in favour of the fourth defendant. The recital in the Settlement Deed clearly show that the property was originally enjoyed by one Gopal and thereafter his son Ekambaram and thereafter the father and mother of the plaintiffs and defendants were also residing there. Therefore, it is very clear that the plaintiffs and defendants were born in the suit property. 16. The recital in Ex.A1 also shows that in fact originally the suit property was in the name of his great grandfather Gopal and after the demise of Gopal, it was in the name of his grandfather Ekambaram and after the demise of Ekambaram the property devolved upon his mother Palayammal. Under Ex.A2 the plaintiffs sent a legal notice dated 29.03.2007 to the first defendant claiming their 2/5 share in the suit property besides questioning the settlement deed Ex.A1 executed by the first defendant in favour of the fourth defendant, wherein he has claimed independent ownership of the property and he has also pleaded that the property liable for partition was entirely different, bearing Door No. 15/19, Varadapuram 1st Street, Kottur, Chennai-85 and the said property was already sold and all the legal heirs had received their shares from the builder in the year 2005. A rejoinder was given by the plaintiffs under Ex.A4. Under Ex.A5, the second and third defendants also sent a reply, wherein they have supported the case of the first defendant. It was also replied by the plaintiffs under Ex.A6. Exs.A7, A8 and A9 are the Encumbrance Certificates in respect of the suit property. Ex.B1 is the Electricity Consumption Card in the name of the 4th defendant, which would show that from the year 2008 he has been paying Electricity Consumption Charges in his name. Ex.B2 is the receipt for payment made by him for the same. Ex.B3 is the property tax assessment in the name of the first defendant from the year 1999. Ex.B4 is the property tax receipt dated 26.02.2008. Ex.B2 is the receipt for payment made by him for the same. Ex.B3 is the property tax assessment in the name of the first defendant from the year 1999. Ex.B4 is the property tax receipt dated 26.02.2008. Ex.B5 is the water consumption card to show the water connection stands in his name from the year 2005. Ex.B6 is the receipt for the year 2009 to show the payment made by the first defendant for the same. Ex.B7 is the cash bill for a sum of Rs. 450/- and Ex.B8 is the report of death of Palayammal dated 31.5.1993. 17. From the above documents filed on both sides, it is very clear that both sides have not produced any document to prove their title to the suit property. But the fact remains that both have not disputed that originally the property came from their ancestors to their mother and their mother was enjoying the property as the absolute owner. From the recital of Ex.A1 it is very clear that the property originally owned by one Gopal and thereafter it came to one Ekambaram and then it came to Palayammal-mother of the plaintiffs and defendants 1 to 3. Therefore, this Court is of the view that once Palayammal was enjoying the property as the sole legal heir of Ekambaram at the relevant time, she was only having absolute right over the property. Therefore, after her death, all her children are equally entitled to share in the suit property. 18. Though it is the contention of the first defendant that he is absolute owner of the property, except some documents filed on his side to show that he has paid some property tax, electricity consumption charges and water consumption charges, no other documents whatsoever has been filed by him to show that he has exercised his rights as absolute owner of the property. Of course, the documents filed by the first defendant are all of recent years. Further to countenance his evidence that he has constructed the house absolutely, there is no materials available on record. In fact in the written statement he has not even pleaded that he has constructed the house. Whereas, he has introduced this plea only first time in his evidence that he has put up construction. Further to countenance his evidence that he has constructed the house absolutely, there is no materials available on record. In fact in the written statement he has not even pleaded that he has constructed the house. Whereas, he has introduced this plea only first time in his evidence that he has put up construction. Even to substantiate his evidence absolutely there is no document available on record to show that he has only put up construction in the suit property. Therefore, merely because he was born and brought up in the suit property, where his father and mother were living, it cannot be said that he had perfected his title by adverse possession. To exclude other co-owners specific overt act is not only to be pleaded but also to be proved. However, no specific plea has been made in the written statement with regard to the ouster. 19. Therefore, merely because one of the co-owners is residing in the suit property from the date of his birth such a long possession will not automatically amount to ouster of the other co-owners from the suit property. Possession of one co-owner is always deemed to be in possession of others. The possession of the co-owner is possession of all the co-owners and for possession to become adverse, there must be something more than exclusive occupation, there must be, as it is termed, ouster. Of course to sustain the plea of ouster there must be categorical pleadings in the written statement coupled with corroborative evidence. In the absence of any plea and evidence the contention of the appellants counsel that ouster can be inferred from the circumstances cannot be sustained in law. Mere possession without establishing the factum of hostile intention with knowledge of the other co-owners the ouster cannot be inferred. Further there is nothing available on record to show that the first respondent has repudiated the right of the other co-owners from the beginning and he excluded them from the suit property. That apart he has pleaded that other properties available for partition in a different survey number. But that also has not been established in evidence. Therefore, when the property is derived from the mother, all of them equally entitled to share the same. That being the case, the plaintiffs being the co-owners certainly entitled to the share. That apart he has pleaded that other properties available for partition in a different survey number. But that also has not been established in evidence. Therefore, when the property is derived from the mother, all of them equally entitled to share the same. That being the case, the plaintiffs being the co-owners certainly entitled to the share. The first defendant in fact had no right whatsoever to execute the settlement deed in respect of the entire property in favour of his son fourth defendant. 20. It is the contention of the appellants' counsel that the suit should have been filed within three years from the date of settlement deed. Therefore, the suit is not maintainable. It is to be noted that the suit is filed for partition and one of the prayers is for declaration. The plaintiffs have continuous cause of action for filing the suit for partition. This Court is of the view even declaratory relief is not at all necessary as the settlement itself is not binding on the plaintiffs. The judgment cited by the learned counsel for the appellants is not applicable to the facts of this case. This Court on a perusal of the entire evidence and the materials, does not find any infirmity in the findings of the learned trial Judge. Accordingly, all the points are answered against the appellants. 21. In the result, the appeal is dismissed. No costs. Consequently, M.P. No. 1 of 2010 is closed.