Dismissed

Ganesan v. Asupathy

Madras HC21 Mar 2022SA/101/2015

Case brief

AI extract

What is this about?

In this second appeal, the Madras High Court dismissed the appellant's claim for recovery of possession based on an alleged 1990 oral partition. The Court held that separate enjoyment of property for convenience does not constitute a partition by metes and bounds, noting the lack of pleadings and corroborative evidence.

What did the court decide?

The second appeal was dismissed with no order as to costs.

Ganesan Vs Asupathy — Partition | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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ORDERS RESERVED ON : 17.03.2022

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PRONOUNCING ORDERS ON : 21.03.2022

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Coram:

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THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH

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Second Appeal No.101 of 2015

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Ganesan

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..Plaintiff/Respondent/Appellant

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..Vs..

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Asupathy

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..Defendant /Appellant/Respondent

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Prayer: Second Appeal filed Under Section 100 r/w Order 42, Rule 1 of C.P.C., as against the decree and judgment dated 27.08.2014 made in A.S.No.15 of 2013 on the file of Subordinate Court, Chidambaram, reversing the judgement and decree dated 28.09.2012 made in O.S.No.41 of 2006 on the file of District Munsif Court at Kattumannarkoil.

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For Appellant : Mr.Srinath Sridevan

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For Respondent : Mr.A.Muthukumar

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JUDGMENT

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The plaintiff is the appellant in this second appeal.

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The case of the plaintiff is that the suit property was a part of a larger extent of property measuring about 6 cents. The further case of the plaintiff is that there was a oral partition between him and the defendant who is his brother in the year 1990 and the plaintiff constructed a house in the year 1995 under the Group House Scheme of the Government. It is stated that the defendant was staying abroad and he came back in the year 2004. He also got married on 09.04.2004. The plaintiff further states that the defendant requested the plaintiff to permit him to stay in the construction put up by the plaintiff for a period of three months till he constructs his house in the vacant land that was allotted in his favour in the oral partition. The plaintiff allowed the defendant to

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reside in his property. Thereafter, the defendant refused to vacate the property. Hence, a legal notice was issued on 21.02.2005, marked as Ex.A1 calling upon the defendant to vacate and handover possession of the property. Even after the receipt of the notice, the defendant did not vacate the property and he in turn gave a reply notice on 21.01.2006, marked as Ex.A3. Aggrieved by the same, the plaintiff filed the suit seeking for the relief of recovery of possession.

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The defendant filed a written statement and took a stand that the suit property formed part of the ancestral family properties of his father Kumarasamy, Plaintiff, defendant and his other brother Arjunan. On the demise of Kumarasamy, each brother became entitled to a share and they were the joint owners of the property. The defendant took a further stand that by mutual agreement and for convenience purposes, the plaintiff agreed to reside in the front portion and the defendant agreed to reside on the northern portion. The defendant had also constructed walls with Mangalore tiled roofing and also constructed bath rooms on the northern corner and he is living along with his family. Similarly, the other brother Arjunan was residing on the eastern portion by putting up a hut. Thus, the defendant took a stand that the property was enjoyed by the joint owners more by way of mutual agreement and there was no partition by metes and bounds as claimed by the plaintiff. The defendant therefore sought for the dismissal of the suit.

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The Trial Court on appreciation of the oral and documentary evidence and on considering the facts and circumstances of the case, decreed the suit and directed the defendant to vacate and handover possession of the suit property within three months. Aggrieved by the same, the defendant filed an appeal before the Sub Court, Chidambaram in A.S.No.15 of 2013. The learned Appellate Judge on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court, allowed the appeal by a judgement and decree dated 27.08.2014 and thereby, the judgement and decree of the Trial Court was setaside. Aggrieved by the same, the plaintiff has filed this Second Appeal.

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This Court while admitting the second appeal framed the following Substantial questions of law :-

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(a) Whether the Lower Appellate Court went wrong in not assigning cogent reasons while reversing the judgment of the Trial Court, as mandated under Order XLI Rule 31 (c) of the Code of Civil Procedure?

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(b) Whether the Lower Appellate Court was right in completely disregarding the evidence of P.W.2 and

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also the additional evidence that was taken on file at the time of final hearing of the Appeal?

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(c) Where the plaintiff bases his claim on an oral partition and the defendant pleads a mutual arrangement for convenience purposes, whether the Lower Appellate Court should have dealt with the claim based on the stand taken by the defendant and looked for corroboration from the other materials that were available by way of evidence?

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(d) Whether the findings of Lower Appellate Court can be termed as perverse due to improper appreciation of the oral and documentary evidence that was available on record?

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Heard Mr.Srinath Sridevan, learned counsel for the appellant, Mr.A.Muthukumar, learned counsel for the respondent and this Court also carefully perused the materials available on record and the findings of both the Courts below.

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There is no dispute with regard to the fact that the suit property along with larger extent of property, totally measuring 6 cents belonged to the father Kumarasamy. It is submitted that he died leaving behind three sons and one daughter. Apart from the plaintiff and the defendant, there was one more brother named Arjunan who also had a share in the property. The specific case of the plaintiff is that there was a oral partition in the year 1990 and by virtue of the oral partition, the plaintiff claims that two cents was allotted to each brother during oral partition and that the plaintiff had put up a construction under the Group House Scheme of the Government in his portion and allowed the defendant to reside in the property. The further case of the plaintiff is that the defendant wanted to put up a construction in the portion that was allotted to him in the oral partition and till then, he sought for the permission to reside in the suit property.

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The Learned counsel for the Appellant mainly focussed his submissions on the stand taken by the defendant in the written statement and the evidence of PW2. The learned counsel also found fault with the judgement of the Lower Appellate Court on the ground that the reasoning given by the trial Court was not properly considered and the appeal has been allowed without proper appreciation of evidence. It was further contended that the convenient enjoyment of the respective property by the brothers in specific portions, is nothing but the consequence of the oral partition that took place in the year 1990. The learned counsel also relied upon the judgement of the Hon'ble Supreme Court in [M/s.Kalloomal Tapeswari Prasad

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(HUF), Kanpur Vs. The Commissioner of Income Tax, Kanpur] in 1982 1 SCC 447 and the relevant portions that were relied upon are extracted hereunder :-

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Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended — whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity. Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement, or (3) by a suit or arbitration. A declaration of intention of a coparcener to become divided brings about severance of status. As observed by the Privy Council in Appovier v. Rama Subba Aiyan “when the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided”. A physical division of the property which is the subject-matter of partition is not necessary to complete the process of partition insofar as that item of property is concerned under Hindu law. The parties

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to the partition may enjoy the property in question as tenants-in-common. In Appovier case , the Privy Council further laid down that “if there be a conversion of the joint tenancy of an undivided family into a tenancy-in-common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right”.

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It is thus clear that Hindu law does not require that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes referred to above and it is open to the parties to enjoy their share of property as tenants-in-common in any manner known to law according to their desire.

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Per contra, the learned counsel for the respondent submitted that oral partition is not a matter of assumption and it has to be pleaded and proved by the plaintiff. The learned counsel submitted that the plaintiff has not even pleaded as to how the properties were divided by metes and bounds and in whose presence it was done. It was further submitted that apart from Ex.A1 to A3, there was not a single document available to substantiate the plea of oral partition.

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The learned counsel further submitted that the enjoyment of property on the basis of convenience arrangement between the parties does not amount to a partition. To substantiate this submission, the learned counsel relied upon the judgement of this Court in [Guruvammal and another Vs. Subbiah Naicket and 5 others] in 2000 1 Law weekly pg.448. The relevant portions relied upon by the learned counsel for the respondent are extracted hereunder :-

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Conceding that there was a separate enjoyment by the brothers, that will not by itself show that there was any completed partition between the brothers. The legal aspect is well settled. In Appavu @ Lakshmanan Pillai and another v. Manikkam Pillai and four others (ILR 1946 Madras 557 = 58 L.W. 621) it has been held as follows:

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“The fact that the members of a Hindu joint family divide among themselves some of the family assets,

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such as income from agricultural lands, outstandings and other movable property, does not in itself mean a division in status. In deciding whether the joint family has become divided the Court must have regard to the terms of any instrument bearing on the question and the subsequent conduct of the parties. Statements made by members of the family on certain occasions for certain purposes that they are joint or divided in status are not of much consequence. It is not their statements but their relations with the estate that must be taken into consideration in determining the issue.”,

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In P. Kaliappa Gounder and others v. Muthuswami Mudaliar (AIR 1987 Madras 24 = (1985) 98 L.W. 773) it has been held by a Bench of this Court, that “Separate possession for the sake of convenience is no partition. The fact of separate enjoyment of specified portions for making improvements over such portions and of obtaining loans will not turn joint ownership into ownership in severalty and in specie in the eye of law.

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I am clearly of the view that the partition set up by the appellant's has not been established. The substantial question of law raised in SA. No. 104/87 is therefore answered against the appellant's and the Second Appeal is dismissed. There will, however, be no order as to costs.

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The learned counsel further submitted that the additional documents that were marked during the pendency of the appeal by the appellant does not in any way help the case of the appellant since these are all documents which came into existence after the filing of the suit. The learned counsel questioned the procedure that was adopted by the appellate Court wherein these documents should have been marked only by way of letting in evidence under Order 41 Rule 28 of CPC. The learned counsel also relied upon the judgement of this Court in [Govindammal (died) and three others Vs.Arumugham] reported in 1998 2 MLJ 354 and the relevant portions relied upon are extracted hereunder :-

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The learned counsel appearing on either side could not succeed insufficiently explaining before this Court on the basis of the materials as to the manner of partition of the property, though it is admitted even by the plaintiff that the original owners and their successors-in-interest got the property divided

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into three shares. Except, the conflicting oral evidence and recitals in one or other of the documents, there is absolutely no documentary evidence to prove the divisions by metes and bounds and any proof of such divisions fixing up of boundaries for their respective portion. In the above circumstances their rights would and could be got indicated by having recourse to a suit for partition only wherein the claims of both parties could be effectively adjudicated. If any such suit for partition is filed, the court dealing with the same shall consider the same and adjudicate the issue raised in such proceedings on the materials placed before it and in accordance with the law uninfluenced by the observations made in judgments of the Courts below. If the property has been so got divided into three shares, the parties on either side can claim possession from one or other of the three shares.

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The said Court dealing with any such claim of party also, if need be direct is and to the extent permissible in law to work out the equities also wherever found necessary. Whatever may be the justification for the parties to do so, there is no justification to countenance the claim for recovery of possession straightaway in the teeth of the seriously disputed facts relating to the enjoyment of both parties to any specified shares by the other party as claimed by the respective parties.

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Before answering the substantial

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questions of law, it is important to take note of the pleadings of the plaintiff and the defendant concerning partition. The pleadings of the plaintiff is extracted hereunder :-

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rK:fk; ePjpkd;w Ms;tiu vy ; iyf;Fl;gl ; l Fkhuf;Fo fpuhkj;jpy; cs;s ,e;j jhthtpy; tpthpf;fg;gl;Ls;s brhj;J ,dp jhth brhj;jhFk ; / ,e;j jhth brhj;J thjpf;F 1990 k; tUlj;jpy; Vw;gl;l tha;bkhHp ghfj;jpy; fpilj;J mjpy; tPL fl;o FoapUe;J tUfpwhh;/ Mjpjpuhtpl kf;fSf;F jkpHf murhy; fl;o jug;gLk; bjhFg;g[ tPL jpl;lj;jpy; thjpf;F 1995y; bjhFg;g[ tPl;od; nky;g[wk; tphpthf;fk; bra;J rPik xL nta;e;J mDgtpj;J tUfpwhh;/ jhth brhj;J mjpy; cs;s tPL vdJ fl;rpfhuhUf;F ghj;jpakhdJ MFk;/ jhth brhj;jpy; cs;s tPl;ow;F brYj;jp tUfpd;whh;

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The pleadings of the defendant in the written statement is extracted hereunder :-

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This defendant submits that the suit property and the property are the ancestral family properties of Kumarasamy and his three sons viz., Plaintiff, Arjunan and Asupathi(defendant). On the death of Kumarasamy each of the 3 brothers are joint owners of the suit property. By mutual arrangement and for convenient purposes, plaintiff agreed to reside in the front portion and defendant agreed to reside the property on the northern side with alone on the west. The front portion on the southern side is occupied by the Plaintiff. In the northern portion, which was actually a vacant site defendant had constructed walls with mangalore tiled roofing and also put up bathrooms and latrine in the northern corner and he is residing in the property along with his family members. Arjunan agreed to reside on the eastern portion end he had put a hut in the eastern side. Thus, each of the property for convenient purposes without any division by metes and bounds. There was no oral partition in 1990 alleged. The oral partition alleged by plaintiff is false and denied. Plaintiff is put strict proof of the same. There was no partition among the family members till date.

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It is also relevant to take note of evidence of DW2 who was one of the brother who is also entitled to a share in the property. The relevant portions from the deposition is extracted hereunder :-

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“1995 y; bjhFg;g[ tPL muR thjpf;F fl;obfhLj;J vd;W brhd;dhy; thjpf;F vd; jfg;gdhh; fl;obfhLj;jJ/ brhj;J gphpf;fg;glhky; ,Uf;ifapy; thjpf;F tPL fl;of;bfhLf;fg;gl;lJ/ thjp FoapUf;Fk; tPl;ow;F nky;g [ wk; Rlhj br';fy; itj;J nkny Xlg;nghl;L cs;shh; vd;W brhd;dhy; rhpay;y/ 1997 y; fl;lpdhh; vd;why; rhpay;y/ mij vd; jk;gpjhd; fl;odhh;/ 2004y; jhd; fl;odhh; fl;Lkhdk; fl;oajw;F vd; jk;gp Mjhuk; itj;Js;shuh vd;wy; mth;jhd; itj;Js;shh;/ ,J vdJ jk;gpapd; jdpg;gl;l ghfj;jpy;jhd; fl;lg;gl;lJ/ gpujpthjpahd me;j tPL fl;lg;gl;lJ bgha; vd;W brhd;dhy; rhpay;y/ tHf;F brhj;jpw; fpH;g[wk; vdJ jk;gp tPL fl;o nghh;nghl;L mDgtpj;J tUfpwhh; vd;why; mth; bghJ brhj;Jjhd; mth; rt[fhpaj;jpw;F nghh; nghl;Ls;shh;/ fPH;g[wk; cs;s 2 brd;oyy; thjpia mDgtk; bra;a mDkjpg;gPh;fsh vd;W nfl;lhy; thjpapd; kfd; ed;kuhd; bgaupy; vd; jkgp th';fpa brhj;ij jpUg;gpf;bfhLf;f brhd;dhy; ,e;j brhj;ij mDkjpf;f mDkjpj;jhy; mDkjpg;nghk;”

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The plea of oral partition is not a matter of assumption and it has to be pleaded and proved. On carefully reading the pleadings of the appellant, there is absolutely no indication as to when exactly the oral partition took place, what were the portions allotted to each sharer and in whose presence such a oral partition had taken place. The

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plaintiff seems to have made an attempt to improve his case in the course of evidence. Any amount of evidence without proper pleadings cannot be looked into or relied upon and the law on this issue is too well settled. One more important factor that must be taken into consideration is that if really the partition had taken place in the year 1990, there is absolutely no reason as to why the plaintiff was not able to produce even a single document during the period between 1990 – 2006, when the suit was filed to establish such a partition and the division of property among the brothers. Even the additional documents that are sought to be relied upon by the plaintiff and which were marked at the appellate stage, does not help the case of the plaintiff, since these are documents which came into existence after the filing of the suit.

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The Learned counsel for the appellant was harping upon the stand taken by the defendant in the written statement, which according to the learned counsel is an admission of the oral partition that took place between the parties. The relevant portions extracted supra from the written statement, merely states that the parties are enjoying the property by mutual agreement and for convenience purposes and they continued to be the joint owners of the property. The question is whether such mutual arrangement for convenience purposes can be construed as a partition. This issue was considered by this Court in Subbiah Naicker case referred supra and it was categorically held that separate possession for the sake of convenience is no partition. The above judgement had taken note of all the earlier judgements on the issue. This judgement will squarely apply to the facts of the present case. The pleading in the written statement that the parties are enjoying the properties by mutual agreement and for convenience purposes, cannot get the status of a partition.

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It is also relevant to take note of the judgement in Govindammal case referred supra wherein this Court held that the availability of conflicting evidence without any clinching material to prove the division of the property by metes and bounds, cannot be acted upon by the Court to hold that there was a partition among the parties. In the present case, the evidence of DW2 who was the other brother, entitled for a share, at the best substantiates that the parties were enjoying the property more by way of convenience and mutual understanding and there was never a oral partition as claimed by the plaintiff.

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Even in sofar as the evidence of PW2 is concerned, it cannot be considered to be a clinching evidence to

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prove the oral partition as claimed by the plaintiff. He himself says in the evidence “ njhuhakhf gphpj;Jf; bfhz;lhh;fs; rh;nt itj;J msf;ftpy;iy“.

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Insofar as the judgement relied upon by the learned counsel for the appellant is concerned, it makes it very clear that disruption of status of a joint property can be brought about by various modes and it is not necessary that there must be a partition by metes and bounds or physically into different portions in every case. There is no difficulty in understanding the scope of this judgement. In the present case, the requisite pleadings to substantiate oral partition is completely absent in the plaint. Therefore, the very basis for claiming that a partition had taken place is very shaky. There are conflicting oral evidence available and they do not in any way help the plaintiff to substantiate his stand that there was a oral partition. The plaintiff was not able to produce even a single document from 1990 upto 2006 to prove that there was a oral partition and that it has been acted upon. Under such circumstances, the judgement relied upon by the learned counsel for the appellant cannot come to the aid of the plaintiff.

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In the present case, what has been established is that there was some mutual arrangement for convenience purposes for enjoying the property and there was no oral partition as claimed by the plaintiff. In any case, enjoyment of the property for the sake of convenience cannot be held to be a partition. The 3^rd substantial questions of law is answered accordingly.

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Insofar as 1^st , 2^nd and 4^th substantial questions of law are concerned, the Lower appellate Court had taken into consideration the pleadings, evidence available on record and the findings of the Trial Court, before allowing the appeal and setting-aside the judgement and decree of the Trial Court. This Court does not find any ground to interfere with the findings of the Lower Appellate Court. These substantial questions of law are answered against the appellant.

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It will be left open to the appellant to initiate separate proceedings for partition and for division of the property by metes and bounds. Only by resorting to such a process, the dispute among the brothers will attain a finality and each of them will be able to separately enjoy the portion of the property allotted to them.

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In the result, this second appeal is dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs.

s/d-

Assistant Registrar

True Copy

Sub-Assistant Registrar

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rka To 1.The Subordinate Court, Chidambaram.

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2.The District Munsif Court, Kattumannarkoil.

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+1 CC to Mr.A.Muthukumar, Advocate sr 18751.

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Second Appeal No.101 of 2015

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RSV(CO) SP(28/04/2022)

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Ganesan v. Asupathy

Case brief

What is this about?

What did the court decide?

Ganesan v. Asupathy

Case brief

What is this about?

What did the court decide?

What the court decided

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