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2019 DIGILAW 1261 (MAD)

Rathinam @ Rathinasamy Padayachi v. Dravidamani

2019-04-24

T.RAVINDRAN

body2019
JUDGMENT : 1. Challenge in this second appeal is made to the judgment and decree dated 03.08.2001 passed in A.S.No.165 of 1994 on the file of the Subordinate Court, Ariyalur confirming/modifying the judgement and decree dated 18.08.1994 passed in O.S.No.477/1989 on the file of the District Munsif Court, Jayangondam. 2. The second appeal has been admitted on the following substantial question of law: Whether the judgments of the Courts below are sustainable in the absence of any finding with reference to family partition and the allotment of share of to Palanivel to an extent of 95 cents which he has already sold, still he is entitled to get eighty cents which he has sold to the respondent/defendant. 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the suit has been laid by the plaintiff for declaration and permanent injunction. 5. From the materials placed on record, it is found that Sengamuthu Padayachi had four sons namely the plaintiff, Govindhasamy, Vadivel and Palanivel. Vadivel had died in the year 1969 and he is succeeded by his wife Manonmani ammal. No issue was born to them. According to the plaintiff, Manonmani ammal had obtained certain properties and executed the release deed in respect of the said properties and accordingly it is purtforth by the plaintiff that the family properties came to be divided amongst the remaining three sons namely the plaintiff, Govindhasami and Palanivel and accordingly various properties were allotted to the abovesaid three sons. According to the plaintiff, Manonmani ammal had obtained certain properties and executed the release deed in respect of the said properties and accordingly it is purtforth by the plaintiff that the family properties came to be divided amongst the remaining three sons namely the plaintiff, Govindhasami and Palanivel and accordingly various properties were allotted to the abovesaid three sons. It is also stated that the father had not been allotted any property and it is further putforth by the plaintiff that subsequently, in respect of the properties left undivided in survey No.214/4 – 99 cents, Survey No.214/5 – 92 cents and survey No.214/10 - 52 cents totally measuring 2 acres and 43 cents, according to the plaintiff in the oral partition effected amongst the abovesaid three items, the northern share measuring 1.21 ½ extent was allotted to Govindhasamy and southern share measuring 1.21 ½ acres has been allotted to the plaintiff and it is stated that in the abovesaid three items of the properties, the brother Palanivel had not been allotted any share and instead, he had been entrusted the other properties and accordingly claiming that the suit properties had been allotted to the plaintiff as abovestated and further putforth the case that the defendant has no right to the suit properties, accordingly the suit has come to be laid by the plaintiff against the defendant for appropriate reliefs. 6. The defendant has disputed the alleged partition said to have been effected between the plaintiff and the brother Govindhasamy in respect of the three items of properties comprised in survey Nos.214/4, 214/5, and 214/10 as alleged in the plaint. According to the defendant, the aboveasid survey numbers and the properties comprised therein had been divided amongst the three brothers namely the plaintiff, Govindhasamy and Palanivel and according to him, Palanivel was allotted to 0.31 ½ ares , the plaintiff was allotted to 0.35.9 ares and Govindhasamy was allotted 0.32.0 ares and in the resurvey, Gonvindhasamy share was comprised in survey No.214/A, the plaintiff's share was comprised in survey Nos.214/4B and 214/5A and Palanivel's share was comprised in survey No.214/5B and 214/10A and according to the defendant, he had acquired the share of Palanivel by way of a sale deed dated 26.06.1989 and enjoying the same and therefore the plaintiff is not entitled to claim any right to the same and sought for the dismissal of the plaintiff's suit. 7. 7. Based on the materials placed on record and the appreciation of the same, the trial court was pleased to dismiss the plaintiff's suit. However, the first appellate court though had confirmed the judgment and decree of the trial court, modified the same to a certain extent and disposed of the appeal. Impugning the same, the present second appeal has been preferred by the plaintiff. 8. The plaintiff claims title to the suit properties based on the partition said to have been effected in respect of the undivided properties belonging to the family. According to the plaintiff, in respect of the family properties belonging to the family comprising of the father Sengamuthu and the four sons, the various properties had been allotted to the three sons and according to him, the wife of Palanivel namely Manonmaniammal relinquished her share in respect of the family properties in favour of the father Sengamuthu. In this connection, the said document has come to be marked as Ex.A1. It is further putforth by the plaintiff that another partition took place orally in respect of the properties comprised in survey No.214/4 – 99 cents, survey No.214/5 – 0.92 cents and survey No.214/10 – 0.52 cents and according to the plaintiff, in the said partition, northern 1.21 ½ acres was allotted to Govindhasamy and the southern 1.21 ½ acres was allotted to his share and the same are the suit properties. It is the case of the plaintiff that in the abovesaid partition, the brother Palanivel was not allotted any share and he was given some other properties towards his share. The aboveasid case projected by the plaintiff is repudiated by the defendant. According to the defendant, in respect of the abovesaid three items, the three sons were granted definite distinct shares and according to him, he had purchased the share allotted to Palanivel in the abovesaid three survey numbers by way of the sale deed dated 26.06.1989 and therefore the plaintiff is not entitled to obtain the reliefs prayed for. 9. In the light of the defence projected by the defendant, as rightly determined by the Courts below, it is for the plaintiff to establish that in respect of the three items of the properties above referred to only he and his brother Govindhasamy were allotted the shares as putforth by him. 9. In the light of the defence projected by the defendant, as rightly determined by the Courts below, it is for the plaintiff to establish that in respect of the three items of the properties above referred to only he and his brother Govindhasamy were allotted the shares as putforth by him. However, to evidence the same, there is no acceptable and reliable material putforth on the part of the plaintiff. On the other hand, it is seen from the release deed executed by Manonmani ammal in favour of Sengamuthu marked as Ex.A1, the properties comprised in survey No.214/4 and 214/10 had been dealt with under Ex.A1 and furthermore, the property of an extent of 46 cents in survey No.214/5 had also been dealt with under Ex.A1. Thus the properties are found to be allotted to Vadivel, the other brother and in turn, his wife Manonmani ammal had relinquished the same in favour of Sengamuthu. In such view of the matter, the case of the plaintiff that thereafter the two sons namely he and Govindha samy alone had partitioned the three items amongst themselves as such cannot be accepted, sans any reliable material pointing to the same. On the other hand, as rightly found by the Courts below, the three sons are found to have divided the remaining undivided properties and accordingly each were granted separate shares and accordingly it is found that the shares allotted to Palanivel had been acquired by the defendant by way of Ex.B1 sale deed and in such view of the matter, as rightly determined by the first appellate court, when the plaintiff has not established the plea of partition in respect of the three items amongst him and Govindhasamy alone, and on the other hand, when the materials placed on record go to show that the three brothers namely the plaintiff, Govindhasamy and Palanivel had divided the said properties and thereafter the defendant had purchased the shares allotted to Palanivel, in such view of the matter, when the subject matter of the oral partition had already been dealt with under Ex.A1 transaction, in all, it is found that the Courts below had rightly disbelieved the plea of oral partition as projected by the plaintiff in respect of the abovesaid three items as referred to. 10. 10. In the light of the above position, the oral partition putforth by the plaintiff having not been established and on the other hand the defendant is found to have acquired the shares allotted to Palanivel under Ex.B1 sale deed, in such view of the matter, it is found that as determined by the first appellate court, at the most the plaintiff would be entitled to claim only right to the extent of 0.41 ½ cents lying on the northern side of the extent of 0.80 cents as described in Ex.B1 and accordingly the Courts below having dealt with the issues involved between the parties on factual matrix as above noted, particularly, the claim of title to the suit properties based on oral partition having been not established by the plaintiff in any manner, in all, it is found that no valid ground has been made out for disturbing the judgment and decree of the first appellate court. 11. Considering the above position, in my view, there is no substantial question of law involved in the second appeal. Be that as it may, the substantial question of law formulated in the second appeal is accordingly answered against the plaintiff and in favour of the defendant. 12. In conclusion, the second appeal fails and is accordingly is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.