Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 289 (MAD)

Maruthandi Kone (Died) v. Seeni Ammal (Died)

2023-01-24

S.SOUNTHAR

body2023
JUDGMENT : Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 31.01.1995 made in A.S.No.113 of 1993 on the file of the District Court, Ramnad against the judgment and decree dated 30.09.1993 made in O.S.No.373 of 1989 on the file of the District Munsif's Court, Ramanathapuram. The legal representatives of the deceased 1st defendant are the appellants. The 1st respondent herein filed a suit for partition of her half share and the suit was decreed. The said decree was confirmed in the first appeal filed by the 1st defendant. Aggrieved by the concurrent judgments, the legal representatives of the deceased 1st defendant have come up by way of this second appeal. Pending second appeal, the 1st and 2nd appellants were dead and their legal representatives were brought on record as appellants 5 to 8. Likewise, the legal representatives of the deceased 1st respondent were brought on record as respondents 5 to 12 and the legal representatives of the deceased 2nd respondent were brought on record as respondents 13 to 18. 2. According to the 1st respondent/plaintiff, the suit properties are the joint family properties in joint enjoyment of the 1st respondent/plaintiff and the defendants. The suit properties originally belonged to Muthu Rakku Kone and he had two sons viz., Seenimuthu Kone and Vellaiseeni Kone. The 1st respondent/plaintiff is the daughter of Seenimuthu Kone. The predecessor in interest of the appellants viz., the 1st defendant and respondents 2 and 3/defendants 2 and 3 are the children of Vellaiseeni Kone. According to the 1st respondent, the suit properties have been in possession and enjoyment of the parties without any partition and the predecessor of the appellants viz., the 1st defendant, Maruthandi acted as Kartha of the family in his capacity as senior most member. It was also pleaded that since the said Maruthandi and respondents 2 and 3 failed to agree for amicable partition, the 1st respondent herein was constrained to file a suit for partition claiming her half share in the suit property. 3. The predecessor of the appellants viz., the 1st defendant, Maruthandi filed a written statement denying the averments found in the plaint. In his written statement, he contended that except suit Items 5, 7 and 8, all other items were ancestral properties. 3. The predecessor of the appellants viz., the 1st defendant, Maruthandi filed a written statement denying the averments found in the plaint. In his written statement, he contended that except suit Items 5, 7 and 8, all other items were ancestral properties. He specifically claimed that there was an oral partition between the father of the 1st respondent Seenimuthu and the father of Maruthandi and respondents 2 and 3 viz., Vellaiseeni. He also denied the claim made by the 1st respondent that Maruthandi acted as Kartha of the family. In respect of Item 7, it was contended by the appellants' predecessor that Government patta was issued to him in recognition of his possession and B-Memos were issued to him. In respect of Item 8, it was contended by him that it was his separate property, as he obtained Samasthana patta under Ex.B.25 from the erstwhile Ramanathapuram Samasthanam. In respect of Items 3 to 6, it was contended that the 1st respondent's father released his share over the same in favour of the said Maruthandi under Ex.B.2 release deed. As far as Items 1 and 2 are concerned, it was contended in the written statement that it was allotted to the said Maruthandi in an oral partition, which was referred to in Ex.B.19-Will. In respect of Item 9, it was contended that out of the total extent of 11 acres and 94 cents in Item 9, 3 acres and 60 cents lying on the southern side belonged to the 1st respondent's father and the said portion was bequeathed to the 1st respondent under a Will. The remaining 8 acres and 27 cents on the northern side belonged to the said Maruthandi and the 2nd respondent. On these pleadings, the predecessor of the appellants sought for dismissal of the suit. 4. The trial Court, on consideration of oral and documentary evidences, came to the conclusion that the 1st respondent proved her right over half share in the suit property and passed a preliminary decree for partition of her half share. Aggrieved by the same, the 1st defendant viz., the predecessor of the appellants filed a first appeal in A.S.No.113 of 1993 on the file of the District Court, Ramanathapuram. The learned appellate Judge confirmed the findings of the trial Court and dismissed the first appeal. Aggrieved by the same, the 1st defendant viz., the predecessor of the appellants filed a first appeal in A.S.No.113 of 1993 on the file of the District Court, Ramanathapuram. The learned appellate Judge confirmed the findings of the trial Court and dismissed the first appeal. Aggrieved by the same, the legal representatives of the 1st defendant Maruthandi had come up by way of this second appeal. 5. At the time of admission, this Court formulated the following substantial questions of law : “(i) When admittedly the shares of the defendants in the properties covered under Ex.A6 to A9 and A.21 and A.22 are expressly excluded in the said documents are the Courts below right in proceeding as if those documents stand as proof for the fact that there was no partition and they remained as joint property? (ii) Are the Courts below right in proceeding that the first defendant has admitted the vital facts relating to partition, joint family status etc., when there is no such admission and on the contrary specific denial? And (iii) When the appellant has obtained Samasthana patta and the Government patta of the Government land on the basis of his own possession and B-Memos issued to him and on his application and effort, is there any justification to treat those lands as family properties liable for partition?” 6.1. Mr. S. Natarajan, learned counsel for the appellants submitted that the 1st respondent/plaintiff, who filed a suit for partition, failed to prove that the suit properties are joint family properties. The learned counsel submitted that though there may be a presumption as to the existence of Hindu Undivided Family, there is no presumption as to the possession of joint family property by the Hindu Joint Family. In support of the said contention, the learned counsel relied on the judgment in Kuppala Obul Reddy Vs. Bonala Venkata Narayana Reddy (Dead) through LRs reported in AIR 1984 SC 1171 . 6.2. The learned counsel further submitted that in a suit for partition, the burden of proof is on the plaintiff to establish the existence of joint family properties and in support of the said contention, the learned counsel relied on the judgment of a Division Bench of this Court in Rajendran and 3 others Vs. R.V. Saravanan reported in 2021 (2) CTC 811 . R.V. Saravanan reported in 2021 (2) CTC 811 . The learned counsel, by taking this Court to the pleadings of the parties, submitted that there is no admission by the appellants' predecessor in his written statement regarding the joint family character of the suit properties, but however, the Courts below committed a grave error in assuming that there was an admission by him in his pleadings. 6.3. The learned counsel also, by taking this Court to the findings of the first appellate Court, submitted that the judgment rendered by the first appellate Court is vitiated by misreading of pleadings and misappreciation of documentary evidence available on record. In this connection, the learned counsel relied on the judgment of the Apex Court in Easwari Vs. Parvathi and others reported in 2014 (4) CTC 583 for the proposition that non-application of mind by the first appellate Court into the evidence available on record would amount to perversity in approach. The learned counsel, by taking this Court to the another decision of the Apex Court in State of Rajasthan and others Vs. Shiv Dayal and another reported in 2019 (5) CTC 843 , submitted that when concurrent finding of facts are assailed in second appeal, the appellant is entitled to point out that the judgments of the Courts below are bad in law, as it was recorded de hors the pleadings or it was based on no evidence. The learned counsel further relied on the judgment of the Apex Court in Union of India and others Vs. Vasavi Co-op. Housing Society Ltd. and others reported in 2014 (4) CTC 471 , for the proposition that in a suit for title, the plaintiff has to win or lose on his own strength. 6.4. In nutshell, it is the submission of the learned counsel for the appellants that the 1st respondent failed to prove the existence of joint family properties and hence, the suit for partition filed by her is liable to be dismissed. More specifically, in respect of Items 7 and 8, the learned counsel submitted that those two items of the properties were separate properties of the 1st defendant, the predecessor of the appellants, as he received patta from the Government under Ex.B.79 for Item 7 and patta from the erstwhile Ramanathapuram Samasthanam under Ex.B.25 in respect of Item 8. More specifically, in respect of Items 7 and 8, the learned counsel submitted that those two items of the properties were separate properties of the 1st defendant, the predecessor of the appellants, as he received patta from the Government under Ex.B.79 for Item 7 and patta from the erstwhile Ramanathapuram Samasthanam under Ex.B.25 in respect of Item 8. The learned counsel emphatically submitted that Ex.B.79 and Ex.B.25 were not at all taken into consideration by the Courts below and hence, the judgments and decrees are vitiated by non-consideration of material evidence available on record. 7.1. Per contra, Mr. S. Meenakshi Sundaram, learned Senior Counsel assisted by Mr. R.T. Arivu Kumar, learned counsel for respondents 5 to 12, submitted that as per the written statement filed by the predecessor of the appellants viz., the 1st defendant, he specifically admitted that except Items 5, 7 and 8, all other items were the ancestral properties and therefore, the citations relied on by the learned counsel for the appellants for the proposition that existence of joint family properties shall be proved by the plaintiff may not be applicable to the facts of this case, in the light of the admission made in the pleadings. The learned counsel further submitted that though in the pleadings, the predecessor of the appellants claimed that Items 5, 7 and 8 of the suit properties were his self acquired properties, in the pleadings he further admitted that in respect of Item 5, the father of the 1st respondent/plaintiff released his share in the property in favour of the predecessor of the appellants under Ex.B.2. Therefore, the joint family character in respect of Item 5 is also admitted by him. By taking this Court to Ex.B.79 and B.25, the learned Senior Counsel submitted that those exhibits viz., the pattas, were not issued in respect of Items 7 and 8 of the suit properties and hence, the contention of the predecessor of the appellants that he obtained pattas for Items 7 and 8 in his name also not proved. 7.2. The learned Senior Counsel further submitted that even though the predecessor of the appellants in his written statement specifically pleaded that there was an oral partition in the family and hence, the present suit for partition is not maintainable, absolutely, there is no evidence available on record to substantiate the said oral partition. 7.2. The learned Senior Counsel further submitted that even though the predecessor of the appellants in his written statement specifically pleaded that there was an oral partition in the family and hence, the present suit for partition is not maintainable, absolutely, there is no evidence available on record to substantiate the said oral partition. Therefore, it is the contention of the learned Senior Counsel that the joint family character of the suit properties except Items 5, 7 and 8 are admitted by the predecessor of the appellants in the pleadings and there is no evidence available on record to support their claim that Items 5, 7 and 8 are self acquired properties. The learned Senior Counsel by relying on the judgment of the Apex Court in Mallanaguoda and others Vs. Ninganagouda and others reported in 2021 (3) MLJ 652 , submitted that existence of substantial question of law is essential for interfering with the finding of facts by the Courts below and in the case on hand, the questions of law formulated at the time of admission are not really arising for consideration. 8. Mr. R. Senthil Kumar, learned counsel appearing for respondents 13 to 18 submitted that he adopts the submissions of the learned counsel for the appellants. 9. The first question of law to be decided in this second appeal is whether the 1st respondent/plaintiff proved the existence of joint family property in order to make a claim for partition. As submitted by the learned counsel for the appellants, the initial burden to prove the existence of joint family property is on the person who claims existence of joint family properties for claiming partition. In the case on hand, the 1st respondent in her plaint pleadings, specifically averred that the suit properties are joint family properties. In response to the said pleading, the predecessor of the appellants viz., the 1st defendant Maruthandi filed a written statement, wherein he specifically admitted that except Items 5, 7 and 8 of the suit properties, all other items are ancestral properties. In fact, he further pleaded that there was oral partition in the family and hence, the suit for partition filed by the 1st respondent is not maintainable. 10. In fact, he further pleaded that there was oral partition in the family and hence, the suit for partition filed by the 1st respondent is not maintainable. 10. When there is a specific admission in the pleadings that except Items 5, 7 and 8, all other items are ancestral properties and there was an oral partition in the family, it is for the appellants' predecessor to prove the alleged oral partition of the ancestral properties. In the case on hand, there is no acceptable evidence available on record either oral or documentary to prove the oral partition pleaded by the predecessor of the appellants. On behalf of the appellants, only one witness was examined as D.W.1 viz., the 1st defendant Maruthandi. Therefore, except the interested testimony of the 1st defendant, there is no other oral evidence in respect of the plea of oral partition. 11. The learned counsel for the appellants submitted that there is a reference about the oral partition in the release deed executed by the father of the 1st respondent Seenimuthu Kone in favour of Maruthandi. 12. Execution of release deed by Seenimuthu Kone was seriously disputed by the 1st respondent/plaintiff in the cross examination of D.W.1. A perusal of Ex.B.2 would suggest that Seenimuthu Kone affixed his thumb impression in the last page of the document. In other two pages, only his mark is available. In the first and second pages of the document, neither the signature nor the thumb impression of Seenimuthu Kone was found. The predecessor of the appellants, who was examined as D.W.1, during his cross examination admitted that Seenimuthu Kone used to sign and till his death, he was able to put his signature, but however, as rightly contended by the leaned Senior Counsel for respondents 5 to 12, in Ex.B.2 release deed, the signature of Seenimuthu Kone was not available and he put his thumb impression only in the last page and in first two pages, only his mark is found. The appellants also failed to examine the attestors of the document to prove due execution of the documents. Therefore, the recitals found in Ex.B.2 cannot be pressed into service by the appellants to prove the oral partition. 13. The predecessor of the appellants claimed in his pleadings that Items 3 to 6 of the suit properties were released by the 1st respondent's father under Ex.B.2. Therefore, the recitals found in Ex.B.2 cannot be pressed into service by the appellants to prove the oral partition. 13. The predecessor of the appellants claimed in his pleadings that Items 3 to 6 of the suit properties were released by the 1st respondent's father under Ex.B.2. As found earlier, without due execution of Ex.B.2, which is not proved, release of share by the 1st respondent's father cannot be accepted. Further, perusal of Ex.B.2 would show that only Items 2 and 6 were dealt with by the said document and there is no reference about other survey numbers of the suit items. In these circumstances, release pleaded by the predecessor of the appellants cannot be accepted when there is no plausible explanation for affixture of thumb impression by Seenimuthu Kone in the release deed. 14. In fact, the 1st appellate Court rejected both the release deed and Will allegedly executed by the father of the 1st respondent under Ex.B.2 and Ex.B19. As far as Ex.B.2 is concerned, for the reasons discussed above, the same is not acceptable to this Court. As far as Ex.B.19 Will allegedly executed by Seenimuthu Kone is concerned, the same has not been proved in accordance with Section 68 of the Indian Evidence Act by calling any one of the attestors to the document. Therefore, the Will relied on by the appellants also stands not proved. 15. As far as Items 5, 7 and 8 are concerned, as per the pleadings of the appellants' predecessor, the share of the 1st respondent's father in Item 5 was released by him under Ex.B.2. As discussed earlier, when this Court come to the conclusion that Ex.B.2 is not proved, the plea of the appellants as if Item 5 is the self acquired properties of their predecessor also falls to ground. 16. The learned counsel for the appellants contended that in recognition of the appellants' predecessor's possession, the Government granted patta to Item 7 in his name under Ex.B.79 and the erstwhile Ramanathapuram Samasthanam granted patta to him in respect of Item 8 under Ex.B.25. 17. A perusal of Ex.B.79 and Ex.B.25 would make it clear that those pattas were not issued to Items 7 and 8. The survey numbers mentioned in Ex.B.79 and Ex.B.25 are not relating to the survey number of Items 7 and 8 mentioned in the plaint. 17. A perusal of Ex.B.79 and Ex.B.25 would make it clear that those pattas were not issued to Items 7 and 8. The survey numbers mentioned in Ex.B.79 and Ex.B.25 are not relating to the survey number of Items 7 and 8 mentioned in the plaint. In the absence of any document to correlate the survey numbers mentioned in Ex.B.79 and Ex.B.25 with the present survey numbers mentioned in the plaint for Items 7 and 8, we cannot come to a definite conclusion that pattas for Items 7 and 8 were issued to the predecessor of the appellants in recognition of his long possession. In these circumstances, the plea raised by the appellants as if Items 7 and 8 are the self acquired properties of the predecessor of the appellants is also not proved. 18. The contention raised by the learned counsel for the appellants that the initial burden to prove the existence of joint family property is on the 1st respondent/plaintiff, is correct and this Court has no quarrel with the said proposition. In fact, the decisions relied on by the learned counsel for the appellants support his contention. However, in the light of the admission made by the appellants' predecessor in his written statement about the existence of ancestral properties, the said decisions relied on by the learned counsel for the appellants will not advance his case. 19.1. In view of the discussions made earlier, all the substantial questions of law, framed at the time of admission, are answered against the appellants and the second appeal stands dismissed. 19.2. In fine, (i) the Second Appeal stands dismissed by confirming the judgments and decrees passed by the Courts below; and (ii) in the facts and circumstances of the case, there shall be no order as to costs.