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2022 DIGILAW 2742 (MAD)

Shantha v. I. Edward Gayton

2022-08-16

P.VELMURUGAN

body2022
JUDGMENT (Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 30.01.2020 passed in O.S.No.76 of 2011, by the learned Additional District Judge, Dindigul.) 1. The original suit has been filed by the first respondent as a plaintiff for partition of his 1/10th share in the suit properties and for mesne profits. The said suit was dismissed by the trial Court by judgment and decree dated 30.01.2020. Challenging the said dismissal judgment and decree dated 30.01.2020, the defendant Nos.2, 3, 9 to 14 as appellants have filed the present appeal. 2. The brief averments in the plaint are as follows : The suit 'A' schedule property and its adjacent properties belonged to one Pappa @ Lourdhu Mariyammal, wife of Lourdhu Pillai. Lourdhu Mariyammal had four children namely, L.P.Paneer @ Irudhayasamy, L.P.Joseph Anthonysamy, Chinnammal and Amalorpamary. The suit 'A' schedule property and its adjacent properties were bequeathed by Pappa @ Lourdhu Mariyammal by way of registered Will, dated 30.10.1975 and accordingly, suit 'A' schedule property was allotted to L.P.Paneer @ Irudhayasamy and suit 'B' schedule property was allotted to L.P.Joseph Anthonysamy and suit 'C' schedule property was allotted for common enjoyment of all the legal heirs. Pappa @ Lourdhu Mariyammal died on 10.10.1978 and the daughters have no right over the properties allotted as per the Will. L.P.Paneer @ Irudhayasamy has six daughters, who are the defendants 1 to 3 and 9 to 11 and four sons are namely, one Charles, defendants 7 and 8 and the plaintiff. Charles is the husband of the fourth defendant and father of defendants 5 and 6. The said L.P.Paneer @ Irudhayasamy died on 08.09.1988 and his wife died in the year 2000 leaving behind the above said persons as their legal heirs. After their death, the suit properties were enjoyed jointly by the plaintiff and defendants. Hence, in the suit 'A' schedule property, the plaintiff is entitled to 1/10th share. 3. The plaintiff, defendants 7 and 8 and Charles, husband of fourth defendant jointly run a partnership firm called, L.P.I. Industries in item No.1 of suit 'A' schedule property. They have purchased the other properties from the income from the above said firm and also the income from the joint family properties. The machineries in the L.P.I. Industries were commonly enjoyed by the above said persons. The plaintiff has 1/4th share in the said machineries. They have purchased the other properties from the income from the above said firm and also the income from the joint family properties. The machineries in the L.P.I. Industries were commonly enjoyed by the above said persons. The plaintiff has 1/4th share in the said machineries. The first person Lourdhusamy has been given the power to sign in the documents and to obtain loan on behalf of partnership firm. It was agreed that the shareholders of the company are each entitled to get Rs.2,000/- (Rupees Two Thousand only) as monthly salary and the other funds are to be kept in the general fund common and to divide the same at the end of the year. After the death of Charles on 28.03.2011, the other partners, who are defendants 4, 7 and 8 failed to show the income of the partnership firm to the plaintiff and the fourth defendant who was in-charge of the firm after the death of Charles denied the share of the plaintiff from the said firm. Hence, a complaint was given on 01.06.2011 to the Police and accordingly, they have agreed to give the share to the plaintiff. The said firm derives monthly income of not less than Rs.2,00,000/- (Rupees Two Lakhs only) apart from the rental income of Rs.15,000/- (Rupees Fifteen Thousand only) received from the shop belonged to joint family. Since the defendants 4, 7 and 8 failed to give the plaintiff's share in the above said firm and properties, he has sent a legal notice on 01.08.2011, for which the defendants 1, 3, 4, 8, 10 and 11 failed to send any reply. Hence, the suit. Pending suit, the first defendant died and hence, the defendants 12 to 14 were impleaded as the legal heirs of the deceased first defendant. 4. Brief averments in the written statement filed by the defendants 1, 3, 10 and 11 are as follows: The plaintiff is not entitled to any relief as prayed in the plaint. It was admitted that the suit properties were bequeathed to the defendants father Panner @ Irudhayasamy and his brother Joseph Anthonysamy, by way of a Will and the defendants and the plaintiff are the legal heirs of the above said persons. Hence, the plaintiff, defendants 1 to 3, 7 to 11 and Charles are having equal rights in the suit schedule properties. Hence, the plaintiff, defendants 1 to 3, 7 to 11 and Charles are having equal rights in the suit schedule properties. The allegation that it was enjoyed only by the male legal heirs is denied. The above said defendants have 4/10th share in the suit properties and they have also paid proper Court fee. The plaintiff has no cause of action to file the suit and hence, the suit is liable to be dismissed with costs. 5. The defendants 2, 4, 5, 7 and 8 have filed a written statement which reads as follows: It is denied that after the demise of Santhanamary, wife of Panner @ Irudhayasamy, the plaint 'A' schedule property was in joint possession. Charles Lourdhusamy and his brothers run a business in the name and style of 'L.P.I. Industries' jointly in a portion of the suit properties. Lourdhusamy rented out the vacant site to four persons and received the advance amount and rent and divided it to his brothers. The building area was divided into four parts and enjoyed by four brothers. The eighth defendant rented out his portion to one Mohammed Jalal. Nelson was doing business separately in his share. The fifth defendant – son of Charles Lourdhusamy was running 'L.P.I. Industries'. The plaintiff rented out his portion to one Amalraj. Before filing the suit, the business run by them got weak. Before filing the suit, the plaintiff removed the machineries from the suit properties. Since the business was closed with the consent of the plaintiff and accounts were also closed, the plaintiff is not entitled to the relief sought for. The fourth defendant was working as a Teacher in a Philominal Middle School for about 13 years and out of her income, she purchased a property measuring an extent of 1032 ½ sq. ft. in T.S.No.820/6 situated at Dindigul Mettupatti Sandhai Road, on 21.08.2006. The wife of the eighth defendant, namely, Michael Nirmala, was working as a Teacher in Chathirapatti, Pudukkottai. The property in T.S.No.820/9 measuring an extent of 1 Acre 3 cents, was sold as plots, of which, she purchased Plot Nos.15 and 16 out of her own income on 29.04.2009. The inclusion of the said property in the suit schedule is not maintainable in law. 6. Further, the eighth defendant purchased Plot No.28 measuring an extent of 1529 sq. ft., in S.No.243/6, 8, at Thottanoothu Village, on 07.02.2005. The inclusion of the said property in the suit schedule is not maintainable in law. 6. Further, the eighth defendant purchased Plot No.28 measuring an extent of 1529 sq. ft., in S.No.243/6, 8, at Thottanoothu Village, on 07.02.2005. Similarly, the fourth defendant purchased the Plot Nos.29 and 30 which were shown as item Nos.7 in the suit 'A' schedule property, out of her own income on 23.02.2004. The inclusion of these properties also in the suit schedule is not maintainable in law. After the demise of Charles, the plaintiff raised dispute with others and based on his complaint given in the Dindigul South Police Station, a panchayat was done before the Panchayatdars among the plaintiff and the defendants 4, 7 and 8 and they agreed to divide the properties into four shares by a lot system and they also agreed to take care of their business and R.C., separately and after fixing the value of the machinery dyemaker, they have to keep it themselves and also concluded that there is no connection between the L.P.I Industries and the plaintiff and the defendants 4, 7 and 8 and the plaintiff agreed for the same and put signatures thereon after showing it to the Panchayatdars. On 09.07.2011, the defendants 4, 7, 8 and the plaintiff permitted the fifth defendant to enjoy the property situated at Door No.93 having E.B.Service Connection No.1754, measuring east-west 30 ft., south-north 50 ft., without any rent and the fifth defendant agreed to permit the eighth defendant to enjoy the said property and an agreement was entered into on 14.07.2011 that the plaintiff can enjoy the property measuring 1500 sq. ft., situated near the east side Well to the Shop owned by Murugan, son of Paraman at Door No.37, Mettupatti Sandhai Road, south to the 10 feet east-west Odai pathway, west and north to the joint property and run the business therein. All these agreements were reduced into writing and the parties to the agreement and other sharers put their signatures in the unregistered document. The property allotted to the plaintiff remained closed. The defendants 4, 7 and 8 rented their respective properties allotted to them. The plaintiff is not entitled to file the suit. The averments in the plaint are false. The plaintiff is not entitled to the relief sought for by him. Hence, the suit may be dismissed. 7. The property allotted to the plaintiff remained closed. The defendants 4, 7 and 8 rented their respective properties allotted to them. The plaintiff is not entitled to file the suit. The averments in the plaint are false. The plaintiff is not entitled to the relief sought for by him. Hence, the suit may be dismissed. 7. The defendants 2, 4, 5, 7 and 8 have filed a additional written statement which reads as follows: In the plaint schedule, 225 sovereigns of gold jewels and TVS Scooty bearing Registration No.TN-57-J-7926 were mentioned. However, nowhere in the plaint, they were stated. The defendants were not in possession of the jewels and the said vehicle. It is not correct to state that the vehicle is a common property as the fourth defendant, who was working as a Teacher, purchased out of her own income. 8. The plaintiff has filed a reply statement which reads as follows: The averments stated in the written statement as well as in the additional written statement are denied as false. The suit properties were undivided and in joint possession. The joint venture is in force till date. The brother of the plaintiff – Charles purchased the properties in the name of the fourth defendant and the wife of the eighth defendant from and out of the joint family income. Similarly, the eighth defendant purchased the Plot No.28 in S.No.243/6 at Thottanoothu Village, out of the joint family income. There were no separate properties for the defendants. All the properties were purchased from and out of the joint family income. The brother of the plaintiff – Charles purchased the properties in seriatim for the family members and built the houses. He assured that if he is alive, he will purchase the property and build a house for the plaintiff. It is not correct to state that in the plaint, there were no descriptions about 225 sovereigns of jewels and TVS Scooty. It is clearly stated that the suit schedule properties were purchased from and out of the joint family income. It is not correct to state that after the demise of Charles, the properties were partitioned among the defendants 4, 7, 8 and the plaintiff and others in a Panchayat. It is not correct to state that the plaintiff put signature in the agreement. No panchayat was held and the plaintiff did not put signatures. It is not correct to state that after the demise of Charles, the properties were partitioned among the defendants 4, 7, 8 and the plaintiff and others in a Panchayat. It is not correct to state that the plaintiff put signature in the agreement. No panchayat was held and the plaintiff did not put signatures. The defendants have forged the agreement. The signature found in the agreement was not that of the plaintiff. It is not correct to state that there were agreements made on 09.07.2011 and 14.07.2011 and the plaintiff put signatures therein. The written statement has been filed in order to defeat the plaintiff to get his share. 9. Based on the above pleadings, the trial Court framed the following issues for consideration:- 1. Whether the plaintiff is entitled to 1/10th share in the suit 'A' schedule properties, separate possession and for preliminary decree ? 2. Whether the plaintiff is entitled to get accounts of L.P.I. Industries from the defendants 7 and 8 ? 3. Whether the plaintiff is entitled to get amount from 28.03.2011 from L.P.I. Industries by the defendants ? 4. To what other relief, the plaintiff is entitled to? 5. Whether the defendants 1, 3, 10 and 11 are entitled to 4/10th share in the suit schedule properties ? 10. In order to substantiate the case, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and 23 documents were marked as Ex.A1 to Ex.A23. On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and 33 documents were marked as Ex.B.1 to Ex.B33. 11. The trial Court, considering the pleadings, oral and documentary evidence, by judgment and decree, dated 30.01.2020, dismissed the suit. Challenging the said judgment and decree, the defendants 2, 3, 9 to 14 have filed the present appeal as appellants. 12. Heard the learned counsel on either side and perused the materials available on record. 13. The learned counsel appearing for the appellants submitted that though the appellants have filed the written statement and they have also paid separate court fee for claiming shares for themselves, the trial Court had dismissed the suit. The parties claiming title under a Will. Though the parties referred to the Will, dated 31.10.1975, none of them have produced the original Will and the Will is a peculiar document, which has to be proved in the manner known to law. The parties claiming title under a Will. Though the parties referred to the Will, dated 31.10.1975, none of them have produced the original Will and the Will is a peculiar document, which has to be proved in the manner known to law. Since either of the parties have produced the copy of the Will or taken steps to bring the registered copy of the Will from the Sub-Registrar's Office, Dindigul, the trial Court had dismissed the suit. Now the defendant Nos. 2, 3, 9 to 14 have filed the appeal along with a petition under Order 41 Rule 27 of the Code of Civil Procedure to receive the certified copy of the Will, dated 31.10.1975 as additional document. Since the parties have pleaded about the Will and they have not produced the Will before the Trial Court, now the petition filed under Order 41 Rule 27 of CPC. cannot be taken up and decided as it is filed only to fill up the lacuna. However, in the interest of justice, since it is a suit for partition and the Will is a registered one, the copy of the original Will might be with the Sub Registrar Office, Dindigul. 14. Since the original registered Will is available with the Sub Registrar Office, if the matter is remanded to the trial Court for fresh consideration to prove the Will in the manner known to law, no party would be prejudiced. In order to give an opportunity to the parties to prove the Will in the manner known to law, the appeal is allowed the decree and judgment of the trial Court is set aside and the matter is remitted back to the trial Court. The trial Court is directed to conduct a fresh trial after giving opportunity to both the parties and both the parties are at liberty to produce all the documents and after giving opportunity to both the parties to produce oral and documentary evidence the trial Court is directed to dispose the suit purely on merits and in accordance with law and the appellants are directed to take effective steps to bring the registered Will from the Sub Registrar's Office, Dindigul, and prove its execution in the manner know to law. 15. With the above observation and direction, this Appeal Suit is allowed. Considering the relationship between the parties, there is no order as to costs. 15. With the above observation and direction, this Appeal Suit is allowed. Considering the relationship between the parties, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.