Dismissed

Nidhiya v. Vairakannu Ammal, (Died)

Madras HC17 Feb 2014AS(MD)/187/2011

Case brief

AI extract

What is this about?

This is an appeal against a trial court decree in a suit for partition. The appellants argued the suit was bad for partial partition and that specific properties were the separate property of deceased relatives. The High Court rejected these contentions due to lack of evidence, upheld the trial court's finding of partition, and dismissed the appeal.

What did the court decide?

The appeal suit is dismissed; the connected miscellaneous petition is allowed, and other miscellaneous petitions are dismissed.

Nidhiya Vs Vairakannu Ammal, (Died) — Partition | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.02.2014 CORAM:

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THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM

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A.S(MD)No.187 of 2011 and M.P(MD)Nos.2 of 2011, 1 of 2013 & 1 of 2014

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1.Nidhiya 2.Pushpa

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.. Appellants/Defendant Nos.4 & 5 Vs.

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1.Vairakannu Ammal (died) 2.M.Hemavathy 3.S.V.Lalitha

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.. Respondent Nos.1 to 3/Plaintiffs

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4.Krishnaveni 5.Dhanalakshmi 6.Subbulakshmi 7.Sundari

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8.Venu Savithri

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9.Loganayaki

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10.Shanmughasundara Pandian (died) 11.Meenakshi

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12.Kalyanasundara Valli .. Respondent Nos.4 to 12/ Defendant Nos.1 to 3, 6 to 11

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(Memo in USR No.329/2014, dated 21.01.2014 recorded vide order, dated 21.01.2014)

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Prayer:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and decree dated 24.09.2010 passed in Original Suit No.161 of 2008 by the I Additional District Court, Madurai.

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For Appellants : Mr.A.Sivasubramanian

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For R – 1 : Died For RR 2 & 3 : Mr.A.Saravanan For RR 4 to 9, 11 & 12 : Mr.J.Suresh Kumar For R – 10 : Died

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JUDGMENT

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(Judgment of the Court was delivered by A.SELVAM,J.)

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The Judgment and Decree dated 24^th day of September, 2010 passed in Original Suit No.161 of 2008 by the I Additional District Court, Madurai are being challenged in the present Appeal Suit.

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The respondents 1 to 3 herein as plaintiffs have instituted Original Suit No.161 of 2008 on the file of the trial Court for the reliefs of partition and separate possession of their shares, wherein the https://hcservices.ecourts.gov.in/hcservices/ present appellants and remaining respondents have been shown as defendants.

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In the plaint it is averred that suit item Nos.1 to 3 have been purchased by one Shanmugam Pillai. The suit item Nos.4 and 5 have been purchased by one Sivapackiathammal, who is none other than the wife of Shanmugam Pillai. The said Shanmugam Pillai has passed away in the year 1933, leaving behind him his wife by name Sivapackiathammal and his two sons, namely Balasubramania Pillai and Venkatachalam Pillai and one daughter, by name, Alamelumanghai. The said Balasubramania Pillai has passed away on 28.07.1995 leaving behind him his wife Rathinam Ammal and defendants D1 to D11. The said Venkatachalam Pillai has passed away on 11.04.1993 leaving behind him, his wife and children, who have been arrayed as plaintiffs. Since the defendants are not amenable for partition and tried to act against the interest of the plaintiffs, the present suit has been instituted for the reliefs sought for in the plaint.

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In the written statement filed on the side of the defendants it is averred that suit item Nos.1 to 3 have been purchased in the name of Shanmugam Pillai and he passed away in the year 1933 and his eldest son by name Balasubramania Pillai out of his own earnings has purchased suit item Nos.4 and 5 in the name of mother Sivapackiathammal and therefore suit item Nos.4 and 5 are his separate properties. The another son by name Venkatachalam Pillai has mortgaged suit item Nos.1 to 3 for his own benefit and subsequently a suit has been laid, wherein an executable decree has been passed and the decreetal amount has been settled by Balasubramania Pillai and therefore, the plaintiffs are not entitled to get the relief of partition in respect of suit item Nos.1 to 3. Further, the present suit is bad for partial partition and therefore, the same is liable to be dismissed.

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On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the present Appeal Suit has been preferred at the instance of the defendants 4 and 5 as appellants on the file of this Court.

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Before contemplating the rival submissions made on either side, it would be more useful to look into the following admitted facts.

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It is an admitted fact that suit item Nos.1 to 3 have been purchased in the name of Shanmugam Pillai. It is also equally an admitted fact that suit item Nos.4 and 5 have been purchased in the name of Sivapackiathammal.

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The consistent case putforth on the side of the plaintiffs is that in all the suit properties the plaintiffs are having half share, whereas, the defendants are entitled to get remaining half share.

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The defence putforth on the side of the defendants is that the present suit is bad for partial partition and further suit item Nos.4 and 5 have been purchased by utilising separate funds of Balasubramania Pillai in the name of mother by name Sivapackiathammal and therefore, suit item Nos.4 and 5 are the absolute properties of defendants 1 to 11. Further, it is stated on the side of the defendants that one of the sons https://hcservices.ecourts.gov.in/hcservices/ by name Venkatachalam Pillai has mortgaged suit item Nos.1 to 3 for his own benefit and subsequently a suit has been laid, wherein an executable

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decree has been passed and the decretal amount has been settled by Balasubramania Pillai by utilising his own funds and therefore, suit item Nos.1 to 3 are also his separate properties and altogether, the plaintiffs are not having any partible interest over the same.

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The trial Court, after considering the rival pleadings putforth on eider side and also after considering the available evidence on record, has decreed the suit as prayed for.

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The learned counsel appearing for the appellants/defendants 4 and 5 has contended that the present suit is bad for partial partition and further suit item Nos.1 to 5 are the separate properties of Balasubramania Pillai. Under the said circumstances, the plaintiffs are not entitled to get the relief of partition, but the trial Court, without considering the nature of defence putforth on the side of the defendants, has erroneously decreed the suit as prayed for and therefore, the Judgment and Decree passed by the trial Court are liable to be interfered with.

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Per contra, the learned counsel appearing for the respondents 1 to 3/plaintiffs has contended that for the purpose of proving partial partition, no document has been filed on the side of the defendants with regard to existence of some properties which have not been included in the present suit. Further, suit item Nos.1 to 3 have been purchased in the name of Shanmugam Pillai. Further, one of the sons, by name Balasubramania Pillai has mortgaged suit item Nos.1 to 3, wherein another son, by name Venkatachalam Pillai has stood as security and subsequently a suit has been laid, wherein an executable decree has been passed against Balasubramania Pillai, Venkatachalam Pillai and their mother Sivapackiathammal and subsequently, Balasubramania Pillai has paid his share. Under the said circumstances, the said contention putforth on the side of the appellants/defendants 4 and 5 cannot be accepted and further suit item Nos.4 and 5 have been purchased in the name of mother and there is no acceptable evidence on the part of the defendants so as to conclude that for purchasing suit item Nos.4 and 5, the said Balasubramania Pillai has advanced money and the trial Court, after considering the overall evidence available on record, has rightly decreed the suit and therefore, the Judgment and Decree passed by the trial Court are not liable to be interfered with.

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During pendency of the present Appeal Suit, on the side of the appellants/defendants 4 and 5 an application in M.P(MD)No.1 of 2014 has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 wherein seven documents have been filed.

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Considering the nature of documents filed along with M.P(MD)No.1 of 2014 and also considering the contention putforth on the side of the defendants M.P(MD)No.1 of 2014 is allowed and the documents filed thereon are marked as Exs.B1 to B7.

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The first and foremost contention putforth on the side of the appellants/defendants 4 and 5 is that the present suit is bad for partial partition. https://hcservices.ecourts.gov.in/hcservices/

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The learned counsel appearing for the appellants/defendants 4 and 5 has relied upon evidence given by P.W.1. During the course of crossexamination P.W.1 has stated to the effect that the property situates in Sammatipuram Village has already been sold and there is no property in South Masi Street. As rightly pointed out on the side of the plaintiffs for the purpose of showing that the present suit is bad for partial partition, no acceptable and trustworthy documents have been forthcoming on the side of the appellants/defendants 4 and 5. Under the said circumstances, the first contention urged on the side of the appellants/defendants 4 and 5 is sans merit.

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The second contention putforth on the side of the appellants/defendants 4 and 5 is that one of the sons by name Venkatachalam Pillai has mortgaged suit item Nos.1 to 3 for his own use and subsequently a suit has been laid, wherein an executable decree has been passed and another son by name Balasubramania Pillai, who is the father of the defendants 1 to 11, has discharged the entire mortgaged loan and therefore, the plaintiffs are not entitled to claim any partible interest over suit item Nos.1 to 3.

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The argument putforth on the side of the respondents 1 to 3/plaintiffs is that the said Balasubramania Pillai, his brother, by name Venkatachalam Pillai and their mother Sivapackiathammal have jointly executed a mortgage deed. Further, the said Venkatachalam Pillai has shown his LIC policy as security and since they failed to discharge mortgage debt, a suit has been laid, wherein an executable decree has been passed and subsequently decretal amount has been settled by Balasubramania Pillai.

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As per Ex.B.6, Original Suit No.100 of 1961 has been instituted by Life Insurance Corporation of India against Balasubramania Pillai, Venkatachalam Pillai and Sivapackiathammal, wherein an executable decree has been passed.

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The entire argument putforth on the side of the appellants/defendants 4 and 5 is based upon Ex.B.7. Ex.B.7 is nothing but a receipt alleged to have been given by one Advocate Desikachariar in the name of Balasubramania Pillai. Simply because, the said receipt stands in the name of Balasubramania Pillai, the Court cannot automatically come to a conclusion that the said Balasubramania Pillai has paid the entire decretal amount. Under the said circumstances, the second contention putforth on the side of the appellants/defendants 4 and 5 also goes out without merit.

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The third contention putforth on the side of the appellants/defendants 4 and 5 is that the father of Balasubramania Pillai and Venkatachalam Pillai by name Shanmugam Pillai has passed away in the year 1933 and subsequently, his eldest son by name Balasubramania Pillai has looked after the entire family in question. By using his own funds, he purchased suit item Nos.4 and 5 in the name of mother by name Sivapackiathammal and therefore, the said item Nos.4 and 5 are the separate properties of Balasubramania Pillai.

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https://hcservices.ecourts.gov.in/hcservices/ 22. Even though such plea has been raised on the side of the defendants, no worthwhile evidence has been forthcoming. It is an

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admitted fact that suit item Nos.4 and 5 are standing in the name of Sivapackiathammal. It is a settled principle of law that a property stands in the name of a woman, the law presumes that the same is her separate property. In the instant case, as pointed out earlier, no acceptable evidence has been adduced on the side of the defendants 1 to 11 for the purpose of coming to a conclusion that the said items have been purchased in the name of Sivapackiathammal. Therefore, viewing from any angle, the contention putforth on the side of the appellants/defendants 4 and 5 cannot be accepted.

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The trial Court, after considering the rival pleadings putforth on either side and also after evaluating the available evidence on record, has rightly decreed the suit and in view of the discussion made earlier, this Court has not found any force in the contention putforth on the side of the appellants/defendants 4 and 5 and altogether the present Appeal Suit deserves to be dismissed.

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In fine, this Appeal Suit deserves dismissal and accordingly is dismissed without costs. Consequently, connected Miscellaneous Petition (MD)No.1 of 2014 is allowed and Miscellaneous Petition(MD)Nos.2 of 2011 & 1 of 2013 are dismissed.

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The documents filed along with MP(MD)No.1 of 2014 are marked hereunder:

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Ex.B1 .. sale deed dated 12.06.1922

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Ex.B2 .. sale deed dated 09.07.1928

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Ex.B3 .. sale certificate issued in favour of Shanmugam Pillai

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Ex.B4 .. sale deed dated 13.09.1946

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Ex.B5 .. premium receipt dated 15.12.1954

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Ex.B6 .. judgment in O.S.No.100 of 1961 dated 05.12.1961

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Ex.B7 .. receipt issued in favour of Balasubramania

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Pillai dated 29.08.1966

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ps Sd/-

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Assistant Registrar[CO]

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/True copy/

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Sub Assistant Registrar

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The I Additional District Court, Madurai.

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+1cc to Mr.H.Thayumanasamy, Advocate SR.No.9906.

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+1cc to Mr.A.Saravanan, Advocate SR.No.10340.

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+1cc to Mr.J.Suresh Kumar, Advocate SR.No.9740.

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https://hcservices.ecourts.gov.in/hcservices/ 5P/5C RPB 07.03.2014

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A.S(MD)No.187 of 2011 Dated:17.02.2014

Nidhiya v. Vairakannu Ammal, (Died)

Case brief

What is this about?

What did the court decide?

Nidhiya v. Vairakannu Ammal, (Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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