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2018 DIGILAW 3984 (MAD)

MARAPPA GOUNDER v. N. M. DURAISAMY

2018-10-29

T.RAVINDRAN

body2018
JUDGMENT T. Ravindran, J. Challenge in this second appeal is made to the Judgment and Decree dated 21.07.2014 passed in A.S.No.17 of 2011 on the file of the Subordinate Court, Gopichettipalayam, Erode District, reversing the Judgment and Decree dated 27.04.2011 passed in O.S.No.38 of 2008 on the file of the District Munsif Court, Gopichettipalayam, Erode District. 2. The parties are referred to as per their rankings in the trial Court. 3. Suit for Declaration and Permanent injunction. 4. The case of the plaintiff, in brief, is that the first defendant is his father and the second defendant is his sister and according to the plaintiff, the suit properties are the ancestral properties of the plaintiff and the first defendant and further, according to the plaintiff, the suit properties were in the joint possession and enjoyment of the plaintiff and the defendants and in the month of April, 1990, the plaintiff and the first defendant orally partitioned the suit properties and as per the oral partition effected, the entire suit properties were allotted to the share of the plaintiff and as the first defendant was unable to work in the lands due to his old age, he relinquished his share in the suit properties in favour of the plaintiff by receiving a sum of Rs. 1,00,000/- from the plaintiff and the plaintiff had also agreed to discharge the family debts to the tune of Rs. 1,50,000/- and accordingly, repaid the same and the second defendant was given in marriage before 25 years with sufficient Sridhana and she had also relinquished her share in the suit properties and from the date of the oral partition in April 1990, the plaintiff is in the possession and enjoyment of the suit properties by making improvements in the same and thereby, incurred expenditure in a considerable sum of Rs. 2,00,000/- and also paying kist to the Government and after the oral partition, the defendants do not have any right in the suit properties and on coming to know that the plaintiff has taken steps to get the patta transferred to his name in respect of the suit properties, the first defendant demanded a sum of Rs. 2,00,000/- and also paying kist to the Government and after the oral partition, the defendants do not have any right in the suit properties and on coming to know that the plaintiff has taken steps to get the patta transferred to his name in respect of the suit properties, the first defendant demanded a sum of Rs. 50,000/- from the plaintiff again and as the plaintiff was unable to accept the demand of the first defendant, according to the plaintiff, the defendants started to interfere with his possession and enjoyment of the suit properties and thereby, denied the title of the plaintiff to the suit properties and also the first defendant has filed a suit in O.S.No.2 of 2008 on the file of the District Munsif Court, Gobichettipalayam against the plaintiff with false averments and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. The case of the defendants, in brief, is that after admitting that the items 1, 2, 3, 5, 8, 10, 11 are all the ancestral properties, according to the defendants, the items 4, 6, 7, 9 are all acquired by the first defendant and they are all the self acquired properties of the first defendant and the plaintiff led a wayward life, used to steal things, ranaway from home and later returned home and the allegation that the suit properties were divided orally in April 1990 is false and the further allegation that in the said oral partition, the first defendant relinquished his right in the suit properties by receiving a sum of Rs. 1,00,000/- is also false and the further allegation that the plaintiff discharged the family debts to the tune of Rs. 1,00,000/- is also false and the further allegation that the plaintiff discharged the family debts to the tune of Rs. 1,50,000/- is also false and the first defendant has already filed O.S.No.2 of 2008 on the file of the District Munsif Court, Gobichettipalayam for the relief of permanent injunction restraining the plaintiff and his men from obstructing or interfering with his possession and enjoyment of the suit properties and it is true that the second defendant was married 25 years ago, however, it is false to state that she had been provided sufficient sridhana and thereby, she had also relinquished her share in the suit properties at the time of the alleged oral partition and the description of the suit properties is incorrect, the plaintiff has never been in the possession and enjoyment of the suit properties in his own right and there is no cause of action for the suit and hence, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to 29 were marked. On the side of the defendants, DW1 was examined and no document has been marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the plaintiff's suit. The first appellate Court, on an appreciation of the materials placed on record both oral and documentary, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff, decreed the suit as prayed for. Impugning the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration. "(a) Whether the learned Judge is right in granting a decree for declaration of title to the suit properties on the basis of the alleged oral partition? (b) Whether the first respondent/plaintiff has filed a suit for declaration of title to the suit properties and for consequential injunction on the basis of alleged oral partition between him and his father, without any document of title in favour of the plaintiff, whether the learned Judge is right in decreeing the suit by reversing the well considered findings of the trial court? (c) Whether the learned Judge is right in accepting the alleged oral partition, when admittedly, no properties were allotted to the appellant being the father of the plaintiff/first respondent and (d) Whether the learned Judge is right in observing that the entire burden lies on the defendant/appellant to disprove the claim of the alleged oral partition, without adverting to the fact that as per the settled law reported in 1996 (2) MLJ 553 ; 2005(5) CTC 17 and AIR 2014 Supreme Court 937, only the person who comes with the claim seeking for declaration of title to the suit properties, independent to the defence of the defendants, the plaintiff alone to prove his claim?" 9. The plaintiff is the son of the first defendant and the second defendant is the daughter of the first defendant. It is thus found that the plaintiff and the defendants are closely related to each other. Materials placed on record go to show that the suit properties are the joint family properties of the plaintiff and the defendants. Even as per the case of the plaintiff, the suit properties had been in the joint possession and enjoyment of the plaintiff and the defendants till the month of March, 1990. Now, according to the plaintiff, during April 1990, the suit properties were orally divided between the plaintiff and the defendants and in the said oral partition, the suit properties were allotted to the share of the plaintiff and the first defendant, on account of his old age, did not seek any share in the suit properties and accordingly, received a sum of Rs. 1,00,000/- from the plaintiff and thereby, relinquished his share or right in the suit properties. Further, it is also stated by the plaintiff that he had agreed to discharge the family debts to the tune of Rs. 1,50,000/- at the time of the oral partition and also discharged the same. It is further stated that as the second defendant was provided with adequate seer at the time of her marriage, which took place about 25 years ago and thereby, she had also relinquished her share or interest in the suit properties at the time of the oral partition. Thus, it is found that the plaintiff claims title to the suit properties based on the oral partition said to have been effected during April 1990. Thus, it is found that the plaintiff claims title to the suit properties based on the oral partition said to have been effected during April 1990. According to the plaintiff, developing enmity, the defendants attempted to interfere with his possession and enjoyment of the suit properties without any authority and questioned his title and hence, according to him, he has been necessitated to lay the suit for appropriate reliefs. 10. The defendants have contested the plaintiff's claim of oral partition of the suit properties during April 1990 and also contested his further claim that the entire properties had been allotted to the plaintiff during the said oral partition and that the first defendant had relinquished his share in the suit properties on account of his old age by receiving a sum of Rs. 1,00,000/- from the plaintiff. Equally, the defendants had also disputed the claim of the plaintiff that he had discharged the family debts to the tune of Rs. 1,50,000/- as agreed to at the time of the oral partition. On the other hand, according to the defendants, the suit properties had not been divided as projected by the plaintiff and it is stated that the plaintiff had been leading a wayward life and accordingly, it is also putforth that the suit properties are in the possession and enjoyment of the first defendant and as the plaintiff attempted to interfere with his possession and enjoyment, according to the defendants, the first defendant was necessitated to lay the suit in O.S.No.2 of 2008 against the plaintiff for the relief of permanent injunction and accordingly, prayed for the dismissal of the plaintiff's suit. 11. As abovenoted, the parties are closely related. The character of the suit properties is not in dispute as such. Now, the plaintiff claims exclusive title to the suit properties based on the oral partition said to have been taken place during April 1990 and the said fact is stoutly disputed by the defendants. The plaintiff, in such view of the matter, has to establish that an oral partition took place between the parties as claimed by him during April 1990 and in the said oral partition, the entire suit properties were allotted to him and that, the first defendant as well as the second defendant had relinquished their share or right in the suit properties. Now, according to the plaintiff, the first defendant had received a sum of Rs. 1,00,000/- at the time of the oral partition and relinquished his share or right in the suit properties. If that be so, as to how the abovesaid plea could be accepted sans any document, with reference to the same, when the relinquishment projected by the plaintiff is said to be effected for a consideration of Rs. 1,00,000/- and as rightly putforth, the said transaction should have been done only by way of a written registered instrument. On the other hand, the claim of the plaintiff that the first defendant relinquished his share or right in the suit properties by receiving a sum of Rs. 1,00,000/- orally at the time of the partition as such, cannot be believed and accepted. Furthermore, the plaintiff has not whispered in the plaint, as to who were present at the time of the oral partition, what were the properties which had been subjected to oral partition and with whom the family owed the debts and to whom debts were to be paid etc., with reference to the abovesaid factors, there is no plea made in the plaint and very vaguely, it has been averred in the plaint that during April 1990, the suit properties were orally divided and by way of the same, the entire suit properties were allotted to the share of the plaintiff. The reason projected by the plaintiff for not allotting any share in the suit properties to the first defendant is, in particular, on account of his old age. However, equally it has been averred that the first defendant had been paid a sum of Rs. 1,00,000/- for his relinquishing his share or right in the suit properties. However, as abovenoted, the said plea of oral relinquishment for a sum of Rs. 1,00,000/- cannot be accepted as per law without a written and registered instrument pointing to the same. Be that as it may, if really an oral partition had been effected amongst the family members, the plaintiff would have named the parties, who had effected the oral partition as projected by him, but the plaintiff has not come forward with the names of the mediators and the panchayatars, who had effected the oral partition amongst the parties. 12. Be that as it may, if really an oral partition had been effected amongst the family members, the plaintiff would have named the parties, who had effected the oral partition as projected by him, but the plaintiff has not come forward with the names of the mediators and the panchayatars, who had effected the oral partition amongst the parties. 12. For the first time, the plaintiff has chosen to examine PW2 Marappa Gounder as a person, who had effected partition between the parties during April 1990. PW2 would claim that he and Others had effected oral partition between the plaintiff and the defendants during April 1990 and also would aver that the first defendant had received a sum of Rs. 1,00,000/-from the plaintiff for the relinquishment of his share or interest in the suit properties. He would also claim that the plaintiff had agreed to discharge the family debts to the tune of Rs. 1,50,000/-. However, if really, PW2 Marappa Gounder and the others named by him had effected the partition between the parties during April 1990, the plaintiff would have averred their names in the plaint to buttress his claim of oral partition. In such view of the matter, merely from the oral assertion of PW2, we cannot straightaway come to the conclusion that the suit properties had been orally divided amongst the parties and in the said oral partition, the entire suit properties were allotted to the share of the plaintiff. 13. Pw2 during the course of his evidence and the plaintiff in the plaint has not averred that the first defendant had borrowed debts from the third parties in connection with the family affairs to the sum of Rs. 1,50,000/-. If that be so, the plaintiff would have averred in the plaint as to from whom the first defendant had borrowed and what is the amount to be paid by them to the first defendant etc., Furthermore, even PW2 who is said to have effected partition has not clearly spelt out the particulars of the family debts said to have been incurred by the first defendant and the names of the persons, from whom, the first defendant had borrowed the amount and even during the course of his evidence, he has not stated any person to whom the family owed sum. For the first time, the plaintiff has chosen to examine one Rakkiannan as PW3 and PW3 would claim that the first defendant had borrowed a sum of Rs. 1,00,000/- from him and it is only the plaintiff, who had repaid the said amount and discharged the said debt. If really, the family had owed debt to PW3 in a sum of Rs. 1,00,000/- by way of a promissory note the plaintiff would have averred the name of PW3 in the plaint. Furthermore, to evidence that the plaintiff had really repaid the sum of Rs. 1,00,000/- to PW3 and discharged the said debt, nothing prevented the plaintiff from producing the discharged promissory note said to have been executed by the first defendant in favour of PW3. In such view of the matter, merely from the oral evidence of PW3 without any particulars pointing to the same, it cannot be construed that the first defendant had borrowed a sum of Rs. 1,00,000/- from PW3 and it is the plaintiff, who had discharged the said debt as per the understanding reached at the time of the alleged oral partition. Though PW3 would claim that he was also present at the time of effecting the oral partition, however, PW2, during the course of his evidence, has not averred anything about the presence of PW3 at the time of oral partition. In such view of the matter, as rightly putforth by the defendants' counsel, no safe reliance could be attached to the evidence of PW3 for arriving at the conclusion that a valid oral partition had been effected between the parties in respect of the suit properties. 14. If really, a valid oral partition had been effected, whereunder, the entire suit properties had been allotted to the plaintiff and the first defendant had been paid a sum of Rs. 1,00,000/- for the relinquishment of his share or interest in the suit properties and the plaintiff had agreed to discharge the family debts to the extent of Rs. 1,50,000/-, as rightly determined by the trial Court, the parties would have endeavoured to bring about the said arrangement or understanding by way of a written document to evidence that such an arrangement had really come into effect amongst them. 1,50,000/-, as rightly determined by the trial Court, the parties would have endeavoured to bring about the said arrangement or understanding by way of a written document to evidence that such an arrangement had really come into effect amongst them. Furthermore, to establish that following the oral partition, the suit properties had been in the exclusive possession and enjoyment of the plaintiff, there is no acceptable and reliable material projected by the plaintiff. Now, according to the plaintiff, the oral partition is alleged to have been taken place during April 1990, however as averred in the plaint, he would state that only recently when he admitted to effect mutation of his name for obtaining patta in respect of the suit properties, the first defendant demanded a further sum of Rs. 50,000/- to be paid and as the plaintiff refused to accept the same, the defendants started to interfere with his possession and enjoyment of the suit properties. Thus, it is found that eventhough the plaintiff claims that the suit properties had been orally divided even during April 1990, despite the same, the act of the plaintiff in seeking the change of patta in his name only during 2008 would itself go to show that inasmuch as no such partition had been effected amongst the family members and on the other hand, the suit properties had been jointly enjoyed by one and all without effecting partition as such and enjoying the suit properties conveniently in piecemeal, that by itself, would not lead to the conclusion that the parties had endeavoured to effect a pucca division of the properties owned by them in the manner known to law. If that be so, immediately after the division of the suit properties orally even during April 1990, the plaintiff would have endeavoured to seek mutation of his name in the revenue records in respect of the suit properties. If that be so, immediately after the division of the suit properties orally even during April 1990, the plaintiff would have endeavoured to seek mutation of his name in the revenue records in respect of the suit properties. On the other hand, when it is the case of the plaintiff that he had endeavoured to seek patta with reference to the suit properties only during 2008, the same would only be pointing to the fact that the suit properties had been in the joint possession and enjoyment of the parties and accordingly, it is found that the plaintiff is unable to place any acceptable and reliable materials to show that he had been enjoying the suit properties separately and independently on his own from April 1990. At this juncture, it is also to be noted that as admitted by the plaintiff himself, the first defendant asserting his title, possession and enjoyment of the suit properties is also found to have laid a suit against the plaintiff in O.S.No.2 of 2008 for the relief of permanent injunction. Furthermore, there is acceptable proof placed on the part of the plaintiff to evidence that he had spent a sum of Rs. 2,00,000/- for the improvement of the suit properties. 15. The first appellate Court seems to have accepted the plaintiff's case based on certain admission made by the first defendant during the course of his evidence. Even as per the case of the plaintiff, the first defendant is an aged person and the first defendant is found to be aged about 75 years, accordingly, it is found that he, during the course of his evidence, at the time of cross examination, had averred that on account of his old age, he had entrusted the documents of title to the plaintiff for safe custody and the abovesaid evidence adduced by the first defendant had been taken into consideration by the first appellate Court to hold that inasmuch as the parties had effected partition of the suit properties, the first defendant had entrusted the title documents pertaining to the same to the plaintiff. However, on a reading of the evidence of the first defendant examined as DW1 in toto would go to show that he has not admitted the case of the partition projected by the plaintiff. However, on a reading of the evidence of the first defendant examined as DW1 in toto would go to show that he has not admitted the case of the partition projected by the plaintiff. On the other hand, he would only state that he had granted permission to the plaintiff to enjoy the suit properties and accordingly, the suit properties had been enjoyed by the plaintiff and on that basis, we cannot construe that a valid partition by metes and bounds had been effected amongst the parties as sought to be projected by the plaintiff. At this juncture, it has to be noted that the parties are very close related, the plaintiff is the son of the first defendant. Such being the relationship between the parties, as rightly argued, on account of convenience and understanding effected between them, the first defendant, being the father, would have permitted the plaintiff to enjoy the properties and the same cannot be taken ipso facto that the plaintiff is in the possession and enjoyment of the sit properties only pursuant to the oral partition projected by him. Thus, it is found that when the evidence of the first defendant is taken and assessed cumulatively as adduced both during the course of chief examination and the cross examination, it is found that he has not admitted the alleged partition projected by the plaintiff during April 1990 and on the other hand, he would only assert that on his permission and consent, the plaintiff is in the possession of the suit properties and not by way of any partition effected between them. Therefore, as rightly found by the trial Court on account of certain arrangement between the family members, the separate possession of one family member of the family properties for the greater convenience of the family members cannot be construed that a partition had been effected amongst the family members. Therefore, as rightly found by the trial Court on account of certain arrangement between the family members, the separate possession of one family member of the family properties for the greater convenience of the family members cannot be construed that a partition had been effected amongst the family members. It is the intention with which the parties had been enjoying the properties should be taken into consideration in determining the issue whether the partition had been really effected between the parties as regards the family properties and when it is found that the plaintiff is unable to place any material worth acceptance to hold that the suit properties are in his exclusive possession and enjoyment right from April 1990 and on the other hand, when it is the case of the plaintiff himself that he had endeavoured to obtain patta in respect of the suit properties only during 2008 and at that point of time, on account of misunderstanding between the parties, problems had erupted between the parties and when the plaintiff's case of the oral relinquishment said to have been made by the first defendant as well as the second defendant cannot be legally acceptable, particularly, the oral relinquishment said to have been made by the first defendant by receiving a sum of Rs. 1,00,000/- it is seen that the first defendant cannot be said to have voluntarily and orally relinquished his share in the suit properties as projected by the plaintiff. On the other hand, it is found that on account of the cordial relationship which had existed between the parties at one point of time, the first defendant, being the eldest member of the family, had permitted his only son viz., the plaintiff to look after the suit properties and by way of the same alone, the plaintiff cannot be allowed to take advantage of the said position to contend that he had been allotted the entire suit properties in the alleged oral partition. 16. Though the plaintiff has marked Exs.A1 to A29, it is found that most of the documents marked as Exs.A1 to A29 are all found to be after the institution of the suit, therefore, they would not be useful to sustain the case of the plaintiff. 16. Though the plaintiff has marked Exs.A1 to A29, it is found that most of the documents marked as Exs.A1 to A29 are all found to be after the institution of the suit, therefore, they would not be useful to sustain the case of the plaintiff. The documents marked as Exs.A1, 2, 8 to 11 are all the title documents of the suit properties and they all remain in the name of the first defendant. Therefore, those documents would not be serve any purpose to sustain the plea of oral partition projected by the plaintiff. That apart, it is seen that the plaintiff has filed 4 kist receipts and the receipts issued by Sakthi Sugars Limited in his favour marked as Exs.A12 to 14, and on the basis of the abovesaid documents, it cannot be construed that the oral partition had taken place between the parties during April 1990, in which, the entire suit properties had been allotted to the plaintiff. When it is found that as per the evidence of the first defendant, he, as the father had permitted the plaintiff, his only son, to enjoy the properties during their cordial relationship and on that basis it is found that the abovesaid documents in the name of the plaintiff could have been obtained and on that basis, we cannot safely construe that a valid and effective oral partition had been made in respect of the suit properties during April 1990 as sought to be projected by the plaintiff. If that be so and if the suit properties had been in the exclusive possession and enjoyment of the plaintiff right from the alleged oral partition till the date of the suit to the exclusion of the defendants, the plaintiff would have taken the plea of adverse possession as against the defendants. However, the plaintiff has not pleaded any adverse title against the defendants. Furthermore, as abovenoted, when it is found that the plaintiff himself has endeavoured to obtain patta with reference to the suit properties only during 2008 and accordingly, when the plaintiff's endeavour to seek patta is not legally made, it is seen that naturally the defendants had putforth their resistance to the same. Furthermore, as abovenoted, when it is found that the plaintiff himself has endeavoured to obtain patta with reference to the suit properties only during 2008 and accordingly, when the plaintiff's endeavour to seek patta is not legally made, it is seen that naturally the defendants had putforth their resistance to the same. In such view of the matter, viewed at any angle, it is found that the plea of oral partition projected by the plaintiff cannot be given credence to and in such view of the matter, the claim of title to the suit properties, possession and enjoyment of the suit properties by the plaintiff based on the alleged oral partition has to fail. 17. In support of his various contentions, the defendants counsel placed reliance upon the decisions reported in (P.Panneerselvan Vs. A.Baylis, (2005) 5 CTC 17 ), (Anil Rishi Vs. Gurbaksh Singh, (2006) 4 CTC 524), (Union of India and Others Vs. Vasavi Co-op. Housing Society Ltd., (2014) AIR SC 937 and Others) and the judgment of this Court dated 12.04.1996 in S.A.No.316 of 1983 (Arulmigu Visweswaraswami and Veeraraghava Perumal Temples represented by its Executive Officer, Tiruppur, Coimbatore Distgrict Vs. R.V.E.Venkatachala Gounder and another). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand. 18. In the light of the above discussions, the plaintiff having failed to establish the oral partition projected by him, it is seen that he cannot be granted the declaration of title to the suit properties based on the same and equally, when it is found that sans partition, the suit properties continued to remain in the joint possession of the plaintiff as well as the defendants, it is found that the plaintiff cannot seek the relief of permanent injunction as against the defendants. That apart, as rightly putforth, when the plaintiff as well as the defendants are equally entitled to the suit properties as such, the claim of the plaintiff that he had the exclusive right and enjoyment of the entire suit properties also cannot be easily accepted, particularly, when there is no material worth acceptance pointing to the same. As abovenoted, the oral relinquishment projected by the plaintiff being legally unsustainable, in all, it is seen that the oral partition projected by the plaintiff has not been established. As abovenoted, the oral relinquishment projected by the plaintiff being legally unsustainable, in all, it is seen that the oral partition projected by the plaintiff has not been established. The first appellate Court, failing to appreciate the case of the plaintiff, particularly the burden of proof to establish the factum of partition squarely lies on the plaintiff, without directing the plaintiff to discharge the said burden, is found to have accepted the plaintiff's case based on the weakness of the defendants' case and in such view of the matter, it is seen that the first appellate Court has erroneously set aside the Judgment and decree of the trial Court and proceeded to grant the reliefs in favour of the plaintiff as prayed for. However, when in the light of the decisions of the Supreme Court as well as our High Court, the party who has come forward with the case has to establish his pleas by projecting acceptable and reliable materials, independent of the defence version, the plaintiff having failed to establish his case, cannot be allowed to seek the reliefs sought for based on the weakness of the defence version. Accordingly, the substantial questions of law formulated in the second appeal are answered against the plaintiff and in favour of the defendants. In conclusion, the Judgment and Decree dated 21.07.2014 passed in A.S.No.17 of 2011 on the file of the Subordinate Court, Gopichettipalayam, Erode District are set aside and the Judgment and Decree dated 27.04.2011 passed in O.S.No.38 of 2008 on the file of the District Munsif Court, Gopichettipalayam, Erode District are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.