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2024 DIGILAW 1420 (MAD)

Jeeva Arulraj v. Sornam

2024-06-26

S.SRIMATHY

body2024
JUDGMENT : S. SRIMATHY, J. 1. The Second Appeal in S.A.(MD)No.16 of 2024 is filed against the Judgment and Decree, dated 18.03.2017 in A.S.No.18 of 2016 on the file of the 1 st Additional Sub Court, Nagercoil, reversing the Judgment and Decree, dated 30.03.2016 passed in O.S.No.319 of 2012 on the file of the District Munsif-cum-Judicial Magistrate Court, Boothapandy. 2. The plaintiff in the suit is the appellant herein, the 1 st defendant in the suit is the 1 st respondent herein and the defendants 2 to 4 in the suit is the respondents 2 to 4 herein. For the sake of convenience, the rank of the parties shall be referred as plaintiff and defendants as stated in suit. 3. The suit in O.S.No.319 of 2012 was filed for injunction against the 1 st defendant not to disturb the peaceful possession of the plaintiff and for mandatory injunction to defendants 2 to 4 to reissue patta which was cancelled by them. The brief facts are that the 1 st defendant is the mother of the plaintiff and the 1 st defendant have six daughters and one son being the plaintiff. The father of plaintiff died 10 years back. The plaintiff had married a lady belongs to another community, hence the 1 st defendant refused to take the plaintiff and his wife in their home. Bur due to the intervention of the elders and village people, the plaintiff was permitted to live in a thatched house in the corner of the vacant site of the plaint schedule property, which is an ancestral property. The 1 st defendant along with last daughter, who is sick, was residing in the concrete family house. The plaintiff is a coolie and has two children. The sisters of the plaintiff are married and are well settled. After the demise of the father, the mother and sisters of the plaintiff are trying to send the plaintiff out of the schedule property. On 02.10.2011 one of the sisters of plaintiff had damaged the belongings of the plaintiff and dismantled the thatched house and threatened the plaintiff to vacate the place immediately. The plaintiff's aunt, Annapooranam on hearing this has sold her half share over the schedule property in R.S.No.341/15A admeasuring 75.0297 square meter and R.S.No.341/7B admeasuring 75.04992 square meter in favour of the plaintiff through sale deed dated 28.10.2011 in Document No. 2120/2011. The plaintiff's aunt, Annapooranam on hearing this has sold her half share over the schedule property in R.S.No.341/15A admeasuring 75.0297 square meter and R.S.No.341/7B admeasuring 75.04992 square meter in favour of the plaintiff through sale deed dated 28.10.2011 in Document No. 2120/2011. Based on the same revenue records were mutated in the name of the plaintiff. When the plaintiff went to the 2 nd defendant office to pay property tax, the 2 nd defendant replied that he could pay the tax only in the name of his grandfather and father. Further the patta in the name of plaintiff was cancelled by the 2 nd defendant at the instigation of 1 st defendant. And on 25.08.2012 the sisters of the plaintiff along with their husbands trespassed into the plaintiff house and tried to kill the plaintiff, his wife and children. The plaintiff rescued them and admitted to the hospital. Criminal complaint was registered in Crime No.53/2012 and the same is pending in the court. Hence this suit for injunction against the 1 st defendant not to disturb his peaceful possession and enjoyment over the suit property and also for mandatory injunction against 2 to 4 defendants to reissue the Patta which was cancelled by them. 4. The 1 st defendant had stated that the suit is not maintainable, there is no cause of action and the plaintiff has not approached the court with clean hands. The allegation in the plaint is the story invented by the plaintiff to create hardship to the 1 st defendant. The suit is bad for non-joinder of necessary parties.The particulars of property are not correct. The suit property along with other properties comprised in new S.No.341/15A and 341/7B originally belongs to Jeevanantham and after his demise it devolved on Kanagasundaram, the husband of 1 st defendant. After the demise of the said Kanagasundaram the properties devolved around his wife, the 1 st defendant herein and their children Sheela Manorathy, Pushparani, Jeeva Arulraj, Jothy, Aji Indiravathy, Dany Reji Flora, and Jessykala equally and they are in joint possession and enjoyment of the same. The suit properties were not partitioned. Hence, they are all necessary party to the suit, hence the suit ought to be dismissed for not impleading the necessary parties. Further the property in S.No.341/15A admeasuring 8 cents and 341/7B admeasuring 7.41 cents in Thazhakudi Village was Hindu Joint Family property of Kanagasundaram. The suit properties were not partitioned. Hence, they are all necessary party to the suit, hence the suit ought to be dismissed for not impleading the necessary parties. Further the property in S.No.341/15A admeasuring 8 cents and 341/7B admeasuring 7.41 cents in Thazhakudi Village was Hindu Joint Family property of Kanagasundaram. As per section 29A of the amended Hindu Succession Act, 1990 and amended Act 2005, the women who were married prior to 25.03.1989 are not entitled to the property from the Hindu Joint Family property. The said Annapooranam was married in the year 1955 and hence she has no right in the property and consequently she has no right to sell the property to the plaintiff. Hence the alleged sale deed is false, fraud and hence the alleged sale is illegal and the sale will not bind on the other legal heirs. The plaintiff is not entitled to get any relief from the court and the suit has to be dismissed. The 1 st defendant had filed I.A.No.260 of 2014 to amend written statement which was allowed vide order dated 25.09.2014. In the amended written statement, the 1 st defendant had stated that the plaintiff and the 1 st defendant profess Christianity and it is incorrect to state that the parties belong to Hindu Undivided family and the properties belong to Hindu Joint Family. 5. The written statement of the 3 rd defendant is adopted by 2 nd and 4 th defendants wherein it is stated that the Plaintiff has to prove the contention in the plaint. The patta for the S.No.341/15A stands in the name of Kanagasundaram son of Jeevanantham and not in the name of Jeevanantham. As per the proceedings of the Deputy Tahsildar dated 11.05.2012 the plaintiffs name was added in the Patta No.3792 and 1423 along with Kanagasundaram as joint Patta. As the 1 st defendant has preferred appeal against the issuance of joint patta in favour of the plaintiff, the 3 rd defendant after enquiry has cancelled the order issued for patta and hence the plaintiff’s name could not be entered in the village records. Further the plaintiff has appellate remedy before the Revenue Divisional Officer and District Revenue Officer. Hence the plaintiff’s name cannot be entered again. The plea of land grabbing is illegal. There is no cause of auction for the plaintiff to file the suit. Further the plaintiff has appellate remedy before the Revenue Divisional Officer and District Revenue Officer. Hence the plaintiff’s name cannot be entered again. The plea of land grabbing is illegal. There is no cause of auction for the plaintiff to file the suit. Hence the suit ought to be dismissed. 6. After perusing the pleadings and evidence the suit in O.S.No.319 of 2012 was allowed. Aggrieved over the same, the 1 st defendant had filed the appeal in A.S.No.18 of 2016 and the same was allowed by dismissing the suit. Aggrieved over the same, the plaintiff had preferred the present second appeal in S.A.(MD)No.16 of 2018 raising various substantial questions of law. However, the second appeal was not admitted on any of the substantial questions of law. 7. The plaintiff had raised the following substantial questions of law: “A. When the 1 st Defendant not specifically denied the title of the plaintiff and his vendor, the First Appellate Court is justified in dismissing the suit for want of declaration? B. When the 1 st Defendant admitted that the plaintiff is in possession of the property the First Appellate Court is right to dismiss the suit for bare injunction for want of prayer for declaration? C. When the plaintiff is not asking injunction against the property of co-owner, whether the First Appellate Court is right in dismissing the suit for injunction for non-joining of sisters of the plaintiff? D. When the 1 st defendant not proved the oral partition between her husband and husband's sister, whether the 1 st appellate court is justified in shifting the burden on the plaintiff to disprove the same?” This Court has farmed additional substantial questions of law and the same are stated as under: “E. Whether the plaintiff is entitled to partition for the other portion of the land which belongs to the father of the plaintiff, Kanagasundaram? F. Whether the suit is bad under Order 2 Rule 2?” 8. The first substantial question of law “A” is “when the 1 st Defendant not specifically denied the title of the plaintiff and his vendor, the First Appellate Court is justified in dismissing the suit for want of declaration? F. Whether the suit is bad under Order 2 Rule 2?” 8. The first substantial question of law “A” is “when the 1 st Defendant not specifically denied the title of the plaintiff and his vendor, the First Appellate Court is justified in dismissing the suit for want of declaration? It is seen that the 1 st defendant had filed written statement specifically denying the fact that the plaintiff’s vendor namely Annapooranam was not having any right over the property since the said Annapooranam was married 65 years ago and had left the parent’s home and living with her husband. 9. Further the 1 st defendant had admitted in cross examination that the 1 st defendant’s father-in-law namely Jeevanantham was professing Christianity who died intestate and he was having two children Kanagasundaram and Annapooranam. The 1 st defendant also admitted that her husband Kanagasundaram also professed Christianity. In such circumstances, under section 33 read with 37 of Indian Succession Act, 1925 it is stated that as per intestate succession, when there is no widow, then the children of Jeevanantham namely Kanagasundaram and Annapooranam would be entitled to equal share. The issue of intestate succession by Christians is dealt with by the Hon’ble Division Bench in A.S.No.596 of 2019 vide Judgement dated 07.11.2023, wherein it is held as under: “7. Since the respondent mother was not represented by a counsel and considering the importance of the question of law, we had requested Ms.B.S.Mitra Neshaa, learned counsel to assist us and appointed her as Amicus Curiae. The learned Amicus has placed a brief note before us detailing the position of law under the Indian Succession Act. Sections 33 and 33-A deal with succession to the estate where the intestate has left a widow and a lineal descendant or a widow and kindred or the widow only. 8.As per the rules under Section 33 & 33-A where the Christian dies intestate leaving behind a widow and lineal descendants 1/3rd of the property would go to the widow and remaining 2/3rd will go to the lineal descendants. If an intestate dies leaving behind a widow and a kindred 1/3rd of the property will be taken by the widow and the remaining will go the kindred. If there is neither lineal descendants nor kindred, the entire property will go to the widow. If an intestate dies leaving behind a widow and a kindred 1/3rd of the property will be taken by the widow and the remaining will go the kindred. If there is neither lineal descendants nor kindred, the entire property will go to the widow. Section 33-A provides for certain rules regarding succession and we do not see any situation where provisions of 33-A would apply in this case. 9. Section 43 of the Indian Succession Act deals with Distribution of Assets when there are no lineal descendants and a widow. Section 42 makes the father a heir and Section 43 provides that if the father is not alive on the date of the death of the intestate, his mother and brothers and sisters would be heirs. The provisions of Sections 41 to 45 of the Indian Succession Act would apply only when the heirs mentioned in Section 33 namely, the widow and lineal descendants are not available.” The aforesaid judgment is followed in W.P.No.14333 of 2023 and the Hon’ble Court vide order dated 08.04.2024. In the present, there is no widow and hence the children of Jeevanantham, namely Kanagasundarm and Annapooranam are entitled to equal share. The entire judgment of the Learned Sub Judge is flawed as the Learned Judge had overlooked the fact that it is Indian Succession Act that would apply to the parties and under the said Act the intestate succession would be the widow, the lineal descendant, kindred or father. In such circumstances, the Appellate Court has erred in holding that there is title dispute and consequently erred in declining the relief of injunction to the suit property. The substantial question of law “A” is answered in favour of the plaintiff and against the 1 st defendant. 10. The next substantial question of law “D” is when the 1 st defendant not proved the oral partition between her husband and husband's sister, whether the 1 st Appellate Court is justified in shifting the burden on the plaintiff to disprove the same? It is seen that the 1 st defendant had raised the plea that there were oral partition between the said Kanagasundarm and Annapooranam, but has not filed an iota of evidence. Infact the defendants had filed “NIL” evidence. It is settled principles of law that the party who raises the plea is bound to prove the same. It is seen that the 1 st defendant had raised the plea that there were oral partition between the said Kanagasundarm and Annapooranam, but has not filed an iota of evidence. Infact the defendants had filed “NIL” evidence. It is settled principles of law that the party who raises the plea is bound to prove the same. In the present case the 1 st defendant had raised the plea, hence the initial burden in on the 1 st defendant. If the 1 st defendant discharges his burden then only the burden would shift to the plaintiff to disprove the same. The Appellate Court had erred in placing the burden on the plaintiff to prove the 1 st defendant plea. The substantial question of law “D” is held in favour of plaintiff and against the 1 st defendant. 11. The next substantial question of law “B” is “when the 1 st Defendant admitted that the plaintiff is in possession of the property, the First Appellate Court is right to dismiss the suit for bare injunction for want of prayer for declaration?”. The 1 st defendant had not deny that the plaintiff is in possession of the suit property. Further the criminal complaint and the patta and other Exhibits A5 to A12 would prove that the plaintiff is in possession of the property. Further the 1 st defendant had only stated that the plaintiff had purchased the half of the suit property through Annapooranam and is residing in the said property, but the said Annapooranam is not having any right over the property and the 1 st defendant had not specifically deny the possession. In such circumstances, it is evident that the plaintiff is in possession of the suit property based on the sale deed executed by Annapooranam and consequent patta. Therefore the plaintiff is entitled to the relief of injunction. Therefore this substantial question of law is held in favour of the plaintiff and against the 1 st defendant. 12. However the Appellate Court had held that the title is declined by the 1 st defendant and hence the plaintiff ought to have filed the suit for declaration by adding the other co-sharers. Therefore this substantial question of law is held in favour of the plaintiff and against the 1 st defendant. 12. However the Appellate Court had held that the title is declined by the 1 st defendant and hence the plaintiff ought to have filed the suit for declaration by adding the other co-sharers. This Court is of the considered opinion that the Appellate Court failed to consider the issue of Christian partition between the children of Jeevanantham namely Kanagasundarm (the plaintiff’s father) and Annapooranam (the plaintiff’s Aathai) under section 33 and 37 of Indian Succession Act. Therefore the Appellate Court had erred in not considering the real issue between the parties. 13. The next substantial question of law is “When the plaintiff is not asking injunction against the property of co-owner, whether the First Appellate Court is right in dismissing the suit for injunction for non-joining of sisters of the plaintiff?”. The plaintiff is seeking the relief of injunction from eviting him from the portion of the property which he had purchased from the Annapooranam. And not from the portion which the plaintiff’s father Kanagasundaram is entitled to and consequently the widow of Kanagasundaram (the 1 st defendant) and the lineal descendants (sisters of the plaintiff) are entitled to. If the plaintiff is seeking injunction against the Kanagasundaram’s share of the property, then the same would amount to seeking injunction against co-owner. The Appellate Court had totally misconstrued the issue raised by the parties. Therefore this substantial question of law also held in favour of the plaintiff and against the 1 st defendant. 14. The next substantial questions of law whether the plaintiff is entitled to partition to other portion belonging to Kanagasundaram and whether the suit is bad for not including the whole claim under Order 2 Rule 2 of Civil Procedure Code. The provision of Order 2 Rule 2 is extracted hereunder: “2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” If a person is filing a suit for any claim, then a comprehensive prayer ought to be stated covering all reliefs between the parties. When there is omission to sue for one of the several reliefs then he shall not afterwards sue for any relief so omitted. If the person has intention to seek the said relief later on, then the said person ought to have sought the leave of the Court and reserved their rights to sue for all such reliefs on a later date. In the present suit the plaintiff had prayed for injunction against the 1 st defendant not to disturb the peaceful possession based on the fact that there were no partition between Kanagasundaram and Annapooranam and there was no further partition between the legal heirs of Kanagasundaram. When the plaintiff has right to seek partition of the other portion and when the plaintiff had not sought the prayer of partition against that portion of the property belonging to Kanagasundarm, then the plaintiff cannot sue for the said relief, since the same is hit by Order 2 Rule 2. Therefore this Court is of the considered opinion that the other portion of the land belonging to Kanagasundarm is available for partition to the defendant Mrs. Therefore this Court is of the considered opinion that the other portion of the land belonging to Kanagasundarm is available for partition to the defendant Mrs. Sornam and other daughters of Kanagasundaram Sheela Manorathy, Pushparani, Jothy, Aji Indiravathy, Dany Reji Flora, and Jessykala. But the said portion belonging to the Kanagasundaram is not available to the plaintiff, since the plaintiff had has not reserved the right to sue, thereby lost his right to sue. The substantial question of law is against the plaintiff and in favour of the 1 st defendant. 15. Therefore all the substantial questions of law are held in favour of the plaintiff and against the 1 st defendant except E and F. For the reasons stated above, the present second appeal in S.A.(MD)No.16 of 2018 is allowed by setting aside the Judgment and Decree, dated 18.03.2017 passed in A.S.No.18 of 2016 on the file of the 1 st Additional Sub Court, Nagercoil and the Judgment and Decree, dated 30.03.2016 passed in O.S.No.319 of 2012 on the file of the District Munsif-cum-Judicial Magistrate Court, Boothapandy is confirmed. No costs. 16. Consequently, connected miscellaneous petition is closed.