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2022 DIGILAW 839 (MAD)

Palanisamy v. Palaniammal (Died)

2022-04-06

N.MALA

body2022
JUDGMENT (Prayer: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 and 2 of the Code of Civil Procedure, 1908, against the Judgment and Decree dated 16.04.2015 made in O.S.No.205 of 2013 on the file of the I Additional District Court, Erode.) 1. The unsuccessful defendant Nos.1 and 2 are the appellants in the above appeal filed against the Judgment and Decree dated 16.04.2015 made in O.S.No.205 of 2013 on the file of the I Additional District Court, Erode. 2. The appellants will be referred to as defendants one and two and the first respondent referred to as plaintiff for the sake of convenience. 3. The plaintiff filed the suit for partition of her 1/4th share in the suit properties and other reliefs. 4. The case of the plaintiff is that the defendants one and two are her brothers and third defendant is her sister. The plaintiff and the defendants are the children of one Periyathambi Goundar and Chinnammal. According to the plaintiff the two items of suit property along with one other property in Gobichettipalayam Taluk were purchased by her father. The plaintiff’s father purchased item number one of the suit property under Ex.A1 on 25.09.1960 and item number two on 26.09.1966 under Ex.A2. The plaintiff’s father purchased the property in Gobichettipalayam on 21.02.1974. The plaintiff’s father died intestate on 04.01.2007 and therefore, after his death, the property devolved on his legal heirs viz., the plaintiff and defendants thus the plaintiff claimed 1/4th share in the suit properties. The plaintiff requested the defendants orally on 05.04.2013 for division of her 1/4th share the defendant’s having refused the plaintiff filed the present suit for partition of her 1/4th share in the suit properties. 5. The first defendant filed a written statement denying all the averments in the plaint. The first defendant contended that the suit properties and also another property in Gobichettipalayam were not the self-acquired properties of Periyathambi Gounder and that though the name of Periyathambi Gounder is reflected in the sale deed, it was the defendants 1 and 2 who paid the sale consideration and therefore the suit properties belonged to them. The sale consideration was paid by them, Periyathambi Gounder was a name giver only and hence the sale deed was sham and nominal. The sale consideration was paid by them, Periyathambi Gounder was a name giver only and hence the sale deed was sham and nominal. The first defendant’s further case was that the plaintiff and the third defendant had absolutely no right to the properties and that he had perfected title by adverse possession also as the plaintiff and the third defendant were married long back and never in possession of the properties. As far as joint sale of the land in Gobichettipalayam is concerned, the defendant’s explanation was that the plaintiff received the entire sale consideration and that the defendants one and three did not take any benefit from the sale. The first defendant also referred to certain expenses incurred by him for the maintenance of his parents and also for the marriage expenses and agricultural loans incurred by him. On the said averments the defendant prayed for dismissal of the suit. 6. The plaintiff has examined herself as PW-1, marked Ex.A1 to A-5 on her side and the second defendant examined himself as DW-1 and marked Exhibits B-1 to B-4. 7. The trial Court framed the following issues: “1. Whether the plaintiff is entitled for partition of 1/4th share in the both items of the plaint schedule properties by metes and bounds and separate possession as prayed for? 2. Whether the first and second defendants alone are in possession and enjoyment of the both items of the plaint schedule properties is true? 3. What other reliefs?” 8. The trial Court on appreciation of the pleadings and the evidence on record returned a finding that the suit properties were the self acquired properties of Periyathambi Gounder and passed a preliminary decree for partition of the plaintiff’s 1/4th share in the suit properties. Aggrieved by the judgment and decree of the trial Court, the defendants one and two have preferred the above appeal. 9. POINT FOR DETERMINATION IN THE APPEAL: (i) Whether the suit properties are the self acquired properties of the plaintiff’s father and whether the plaintiff is entitled to the relief of partition of 1/4th share in the suit properties. 10. The learned counsel for the defendant mainly contended that the burden was on the plaintiff to prove that the suit properties are the separate property of their father. 10. The learned counsel for the defendant mainly contended that the burden was on the plaintiff to prove that the suit properties are the separate property of their father. The learned counsel further argued that merely because the plaintiff joined in sale of the property in Gobichettipalayam, she cannot claim the suit properties as self-required property of their father. 11. The counsel for the plaintiff supported the judgment of the trial Court and prayed for the dismissal of the appeal. 12. Heard the learned counsel for the appellants and the respondent. 13. The plaintiff’s specific case is that the suit properties were purchased by her father Periyathambi Gounder vide Document in Ex.A1 and Ex.A2 and that on his death intestate on 04.01.2007 as the Legal heir of the deceased Periyathambi Gounder, the plaintiff and the defendant Nos.1 to 3, who are her brothers and sister are equally entitled to the suit property. Whereas the defendants claim that the suit properties though stand in the name of the father i.e. Periyathambi Gounder, it was the defendant’s 1 and 2, who paid the sale consideration and Periyathambi Gounder’s name was added as sham and nominal. It is not disputed that Ex.A1 and Ex.A2, the sale deeds dated 29.09.1960 and 26.09.1966 stand in the name of the father Periyathambi Gounder hence the burden is on the defendants to show that the sale is only sham and nominal and that the consideration for the sale was paid by them. 14. It is pertinent to note here that the second defendant who was examined as DW1 has deposed that at the time of purchase of Item NO.1 of the suit property by his father in the year 1960 he was aged about four years and his brother was aged about two years. He further deposed that at the time of purchase of item No.2 of the suit property DW1 was aged about ten years and his brother was aged about eight years. He admits that he was born in the year 1956 and his brother was born in the year 1958. The relevant portion is extracted as under: 15. Therefore it is crystal clear that the claim of the defendants is unbelievable. At such tender age it is improbable that the defendants could have paid the sale consideration. Even otherwise there is no iota of evidence in support of the defendants claim. The relevant portion is extracted as under: 15. Therefore it is crystal clear that the claim of the defendants is unbelievable. At such tender age it is improbable that the defendants could have paid the sale consideration. Even otherwise there is no iota of evidence in support of the defendants claim. One other aspect which creates a suspicion on the defendants plea is that the plaintiff and the third defendant, who are the daughters of Periyathambi Gounder joined in the execution of the sale deed for sale of the property at Gobichettipalayam under Ex.A4 on 01.02.2007. If really the plaintiff and the third defendant as the daughters had no share in the suit properties and the same exclusively belonged to the defendant Nos.1 and 2 there was no reason why they were joined in execution of the sale. The explanation given by defendants 1 and 2 that at the request of the vendee they joined in execution of sale is frivolous and untenable. It is also seen from the records that the house tax receipts and the land tax receipts stood in the name of Periyathambi Gounder under Ex.B1 and Ex.B2. The fact that the defendants 1 and 2 did not mutate the revenue records even after the father’s death falsifies the defendants claim. 16. The trial Court has rightly considered the evidence on record and come to a conclusion that the plaintiff has proved that the suit properties are the self-acquired properties of Periyathambi Gounder and as such she is entitled to one 1/4th share in the same. 17. Though the plea of ouster was raised by the defendants the same is not supported by any documentary evidence. No other grounds were urged before me. I find that the trial court has appreciated the evidence on record properly and has given its findings correctly on the issues raised before it. I confirm the findings of the trial Court and see no justifiable grounds for interference. 18. I therefore hold that the Judgment and Decree of the trial Court has to be affirmed and the appeal has no merits and the same deserves to be dismissed. 19. I find that there is no merits in the appeal and the same is dismissed, confirming the Judgment and the Decree of the trial Court. There shall be no order as to costs.