Allowed

Pappal v. Periathambi @ Muthuvel(Died)

Madras HC21 Dec 2022SA/174/1999

Case brief

AI extract

What is this about?

The High Court set aside the lower appellate court's judgment and confirmed the trial court's decree in a dispute over property partition. The court held that documentary evidence established a prior partition among brothers, validating the father's settlement deed in favor of his daughter.

What did the court decide?

Set aside the judgment of the lower appellate court; confirm the judgment and decree of the trial court.

Pappal Vs Periathambi @ Muthuvel(Died) — Partition | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 21.12.2022

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.174 of 1999

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1.Pappal 2.Ganesan

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3.Muthukannu 4.Senji Lakshmi

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5.Saraswathi ...Appellants Vs.

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1.Periathambi @ Muthuvel (Died)

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2.Chinnathambi @ Diraviyam

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3.Subramaniam @ Saravanan (Deceased)

4.Murugesan (Died)

5.S.Ponvel

6.Santha

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7.Kumutha

8.Geetha

9.Kuppayee

10.Pappa

11.Vasantha

12.D.Nagaraj

13.D.Kanagaraj

14.M.Rukmani

15.Parthipan

16.Sivashanmugam

17.Thamayanthi

18.R.Gomathi

19.J.Vijaya

20.P.Janaki

21.S.Selvi

22.K.Kavitha

23.P.Manokaran

24.R.Vasanthi

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25.D.Priyadharshini

26.D.Karthikayini

27.K.Solaiyammal

28.K.Sathishkumar

29.P.Saranya ...Respondents

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(Respondents 5 to 8 brought on record as LRs of the deceased R3 vide order of the Court dated 13.02.2015 made in C.M.P.Nos.80 to 82 of 2015 in S.A.No.174 of 1999)

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(Respondents 9 to 13 brought on record as LRs of the deceased R2 vide order of the Court dated 06.01.2020 made in C.M.P.Nos157, 159 & 160 of 2020 in S.A.No.174 of 1999)

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(Respondents 14 to 18 brought on record as LRs of the deceased R4 vide order of the Court dated 10.02.2021 made in C.M.P.No.6323 of 2020 in S.A.No.174 of 1999)

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(Respondents 19 to 29 brought on record as LRs of the deceased R1 vide order of the Court dated 24.08.2021 made in C.M.P.No.13261 of 2021 in S.A.No.174 of 1999)

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Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 15.03.1994 in A.S.No.75 of 1989 of the Subordinate Judge, Sankagiri reversing the Judgement and Decree dated 29.07.1989 in O.S.No.128 of 1988 of the District Munsif, Sankagiri and restore the Judgement and Decree in the said O.S.No.128 of 1988.

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For Appellants : Mr.AR.L.Sundaresan Mrs.A.L.Ganthimathi

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For Respondents : Died 1 to 4 For Respondents : Mr.B.Balavijayan 5 to 29 for M/s.C.S.Associates.

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JUDGMENT

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The plaintiffs are the appellants before this Court challenging the

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reversing Judgement. The facts which has culminated in the filing of the above Second Appeal is herein below narrated and the parties are

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referred to in the same array as before the Trial Court.

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Plaintiffs' case:

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The suit has been filed by the plaintiffs for a declaration of their title to the suit schedule property and for recovery of possession as also for mesne profits. The suit schedule property is described herein below:

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“ehkf;fy; o. kUl";rhto rg;/up/o/. flYhu; fpuhkk;. ru;nt bek;gu; 97-4 g[";ir Vf;fu; 3/23f;F jPu;it U:/5/04 ,jpy; g[/V 1/34f;F brf;Fge;jp tpugk; Cup ej;j;jpu;f;Fk; fpHf;F. fe;jrhkp gps;is enlrd; ,tu;fs; epyj;jpw;Fk; tlf;F. o/tp/Mu;/gh!;fud; ghf epyj;jpw;Fk; gidkurhpf;Fk; nkw;F. r/be/97-4y; kw;w ghf';fSf;Fk; bjw;F. ,jd; kj;jpapy; cs;s g[/V/1/34 g{uht[k; nkw;go bek;gupy; cs;s fpzu; 1y; bghJtpy; 5y; 1 ghfk; jz;zPu; ghj;jpak;. ic& fpzw;wpy; cs;s 5 vr;gp. Vbyf;l;upf; nkhl;lhu; gk;g[ brl; 1 g{uhghj;jpak; ,jpy; cs;s

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khtil. kutilfs; g{uht[k; khK:y; jl ghj;jpaKk; ,d;Dk; ,jw;F rk;ke;jg;gl;l rfy <!;bkz;l; ghj;jpa';fSk;/

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It is the case of the plaintiffs that the 1^st plaintiff is the mother, plaintiffs 2 to 5 are children. The defendants are the brothers of the 1^st plaintiff. It is the case of the plaintiffs that the suit property and other properties belonged to one Nalla Pillai, the father of the 1^st plaintiff and the defendants. This property had been alloted to the share of Nalla Pillai in a partition that had been effected nearly 22 years ago. The said Nalla Pillai had executed a settlement deed dated 22.02.1982 settling the suit properties on the 1^st plaintiff and on the very same day, the possession of the property had also been handed over to the 1^st plaintiff. The said Nalla Pillai passed away on 10.10.1982 and as soon as his obsequies had been concluded the defendants had forcibly trespassed into the suit schedule property. Despite the request of the plaintiffs to the defendants to vacate and handover vacant possession of the suit

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property they had refused.

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The plaintiffs had issued a legal notice dated 28.10.1982 calling upon the defendants to vacate and handover possession of the property. However, the defendants had not vacated the premises but had issued a reply notice dated 15.11.1982 containing false allegations. Therefore, the plaintiffs have been constrained to file the above suit for the relief stated above.

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Written Statement:

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The defendants had filed a written statement inter alia denying the allegations in the plaint. It is their case that the property continued to be an undivided joint family properties and further it is their case that long ago their father Nalla Pillai had orally sold his share in favour of the defendants for a consideration of Rs.95/-. The defendants would contend that they are in possession and enjoyment of the property.

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It is the further case of the defendants that for the past 2 or 3

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years, the plaintiffs used to visit Nalla Pillai and take him away. The

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plaintiffs had exerted undue influence, threat, coercion to get the settlement deed executed in their favour. In fact, on 15.02.1982 a settlement deed had been executed and the defendants on coming to know about that had informed Nalla Pillai that he could not execute such settlement deed and Nalla Pillai immediately handed over the settlement deed to the defendants and did not get the same registered.

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However, thereafter according to the defendants, the plaintiffs

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had threatened and got the settlement deed executed and registered on 22.02.1982. It is the case of the defendants that the said Nalla Pillai had no right over the suit property as he had already sold the same to the defendants and therefore the settlement deed executed by him was invalid. Therefore, the defendants had sought for the dismissal of the suit.

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Additional Written Statement:

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In the additional written statement, the defendants would

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submit that the settlement deed dated 22.02.1982 had not been acted

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upon.

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Trial Court :

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The learned District Munsif, Sankagiri had framed the

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following issues:

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“1.thjpfs; jhth ngupy; vGjp bfhLf;fg;gl;l brl;oy;bkd;l; gj;jpukhdJ cz;ikahtjh> 2/thjpfSf;F tHf;Fr; brhj;jpy;

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cupika[s;sjh>

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3/tHf;fpy; nfhupathW thjpfs; rthjPdk; bgw mUfij cilatuh> 4/tHf;fpy; nfhupathW thjpfSf;F Mesne Profit bgw mUfij cilatuh>

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5/tHf;fpy; thjpfSf;F fpilf;ff;Toa gupfhuk; ahJ>

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An additional issue was later framed which reads as follows:

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“tHf;Ff; brhj;jhtJ gpujpthjpfSf;F ghj;jpag;gl;l g{u;tPf Tl;L FLk;g brhj;J vd;gJ rupah>

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The 1^st plaintiff had examined herself as P.W.1 and one

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Mariyappan as P.W.2. Ex.A.1 to Ex.A.9 were marked on the side of the plaintiffs. The 1^st defendant had examined himself as D.W.1 and one Arumugam as D.W.2 and Ex.B.1 and Ex.B.2 were marked on their side.

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The learned District Munsif, Sankagiri, had ultimately

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decreed the suit as prayed for.

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Lower Appellate Court:

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Aggrieved by the said Judgement and Decree, the defendants had filed A.S.No.75 of 1989 on the file of the Subordinate Court, Sankagiri. In the appeal the defendants had filed I.A.No.83 of 1990

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from framing additional issues. The said application was allowed on 03.05.1990 and the following additional issue was framed:

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“ey;yh gps;isf;Fk; mtUila kfd;fSf;Fk; Vw;gl;l ghfg; gpuptpid cz;ikahdjh>

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Thereafter, the matter was remitted back to the Trial Court for giving findings on the newly drafted issue. The parties were given liberty to let in fresh evidence. After the remand, the 1^st plaintiff had once again adduced evidence as P.W.1 and marked Ex.A.10 to Ex.A.13. On the side of the defendants, the 1^st defendant was examined as D.W.1 and the 4^th defendant was examined as D.W.3. The defendants had marked Ex.B.3 to Ex.B.7. The legal notice dated 05.08.1983 issued by the plaintiff to the defendant was marked as Ex.C.1.

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After the remand, once again the Trial Court had returned a finding by Judgement dated 31.12.1993, that the partition pleaded by the plaintiffs was true and the matter was sent back to the Lower

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Appellant Court. The learned Subordinate Court, Sankagiri on considering the evidence proceeded to allow the appeal.

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Aggrieved by the said Judgement and Decree the plaintiffs

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are the appellants before this Court.

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Second Appeal:

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The above Second Appeal has been admitted on the following Substantial Questions of law:

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“1.Whether the Lower Appellate Court has failed to

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consider the relevant evidence and has thus arrived at a

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wrong finding that there has been no partition among late Nalla Pillai and the respondents;

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2.Whether Lower Appellate Court has committed an

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error in holding that a gift by a Hindu male of his undivided interest in family property is void irrespective of

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the recipient of the gift and the circumstances for the gift;

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and

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3.Whether the Lower Appellate Court has completely

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mis stated the rule of burden of proof.

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The learned senior counsel appearing on behalf of the learned

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counsel for the appellants / plaintiffs would submit that the Lower Appellate Court has clearly not applied its mind to the evidence on record and has therefore reversed the Judgement and Decree of the Trial Court holding that the plaintiffs have not proved the partition.

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The learned senior counsel would submit that Ex.A.4, patta,

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Ex.A.6, Ex.A.7, Ex.A.12 and Ex.A.13 sale deeds and Ex.A.10 and

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Ex.A.11 settlement deeds are ample proof to prove the partition amongst Nalla Pillai and his sons, the defendants herein. The learned senior counsel would submit that the schedule in Ex.A.1 settlement deed in favour of the plaintiffs would also show one boundary as the properties of the other sharers. The learned senior counsel would submit that these factors have not been considered by the Lower Appellate Court.

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That apart, the defendants had taken a plea that an earlier settlement deed dated 15.02.1982 had been executed and Nalla Pillai decided not to go ahead with settlement on hearing objections of the defendants and that he had handed over the original settlement deed to the defendants. However, the same has not been produced before this Court, which would itself show that the defense is nothing but a sham defense.

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Further, the defendants would contend that the father Nalla

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Pillai had sold his share to them. However, except for the pleadings no other documentary evidence or oral evidence has been let in to prove the above sale.

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In fact, after the remand, D.W.3 in his cross examination on 28.06.1993 has categorically stated that his father has not sold his share to any person. Therefore, it is the contention of the learned senior counsel that once the sale by Nalla Pillai stands disproved and the

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defendants had admitted the various transactions effected by them as evidenced by the plaintiff's document it is clearly evident that Nalla Pillai and his sons had partitioned the property with each of them enjoying their respective shares. Nalla Pillai has executed the settlement deed in favour of his daughter and her children in respect of his share.

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The learned senior counsel would submit that the defendants have also made a statement that the plaintiffs had forcibly taken away Nalla Pillai from the 1^st defendant's house and compelled him to execute the settlement deed. However, in his cross examination the 1^st defendant would himself admitted that no one has forcibly taken his father away.

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It was also stated by the learned senior counsel that Nalla Pillai was staying with the 1^st plaintiff as she was a daughter who had been deserted by her husband. Therefore, in order to make provisions

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for her and her children the settlement deed has come into effect. The 15/22

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1^st plaintiff as P.W.1 has deposed to this effect in her chief examination, which has not been rebutted by the defendants. The learned senior counsel would therefore submit that the Judgement of the Lower Appellate Court requires to be set aside, the Judgement of the Trial Court be restored and the Second Appeal be allowed.

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Per contra, the learned counsel appearing for the respondents

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/ defendants would submit that the plaintiffs have not been able to prove the partition of the joint family properties between Nalla Pillai and his sons. Even in the documents that have been pointed out by the appellants the property has only been described as an ancestral property, which would reinforce the case of the defendants that the joint family continued to be in existence and each of them were entitled to a share in the suit schedule property.

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The learned counsel would further submit that Nalla Pillai was not in good health and the plaintiffs have exercised undue influence on Nalla Pillai to have settlement deed executed in favour of

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the 1^st plaintiff. Further, the settlement deed was never acted upon as possession continues with the defendants. The learned counsel would therefore submit that the Judgement and Decree of the Lower Appellate Court be confirmed.

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Heard the learned senior counsel for the plaintiffs, learned counsel for the defendants and perused the records.

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The case of the plaintiffs is that 22 years or thereabouts there was a partition, in which apart from the suit property Nalla Pillai had been alloted other properties. The factum of the oral partition can be evidenced from the very description of the property in Ex.A.1 settlement deed. A perusal of the schedule in Ex.A.1 would clearly show that on the north of the property, the subject matter of the settlement, properties of the other sharers in the same survey number was situate. The suit property is an extent of 1.34 acres, from out of the total extent 3.23 acres.

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The plaintiffs have marked Ex.A.4 patta dated 10.08.1984, which is issued in respect of the entire extent of 3.23 acres in S.No.97/4. This patta stands in the name of the defendants 1 to 4 and the 1^st plaintiff as also the children of the 1^st plaintiff and others. On the very next day of the settlement deed being executed in favour of the 1^st plaintiff a caveat appears to have been lodged by the defendants against the 1^st plaintiff and Nalla Pillai on 23.02.1982, which gives rise to presumption that the defendants were aware about the settlement deed.

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Further, the 1^st defendant has executed two settlement deeds under Ex.A.6 and Ex.A.7 in which the eastern boundary is shown as the lands of defendants 1 to 4. The recitals would clearly read as e/Kj;Jnty;. jputpak;. Rg;gpukzpad;. KUnfrd; epyj;jpw;F nkw;F. A similar recital is also found in Ex.A.10, Ex.A.11, which are the settlement deeds executed by the 2^nd defendant in favour of his sons, where the recital would state that the property are

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in the possession of the 2^nd defendant and further one of the boundary

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is shown as the lands of the other sharers.

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In Ex.A.12 which is a sale deed executed by the 3^rd defendant

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in favour of one Mahalingam, the recitals clearly state that the schedule mentioned properties are ancestral and the western boundary is shown as the lands of the 1^st defendant and eastern boundary as the lands of the sons of the 2^nd defendant.

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Under Ex.A.13 the 1^st defendant and his sons have sold the property as late as on 08.04.1992 after the filing of the suit, wherein the eastern boundary is shown as the lands belonging to the 4^th defendant and the western boundary is shown as the land which has been sold under Ex.A.12. These documents would clinchingly prove that there has been a partition and the sharers have been enjoying the properties as their individual property and effecting various transactions thereon. Therefore, the contention of the plaintiffs that there has been a partition between defendants and their father Nalla Pillai stands proved.

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Ex.A.4, which is the joint patta granted as yearly as in the year 1984, within a year of the settlement in favour of the plaintiff, would go on to show that the settlement deed has been given effect to. The plea of the defendants that it has not been so given is totally false. The settlement deed Ex.A.1 clearly shows that the plaintiffs have been put in possession of the property and Ex.A.4 will further fortify the same. The case of the plaintiffs is that after the obsequies of the father the defendants had trespassed into the property. Once the Court finds that the settlement deed executed is valid one and conveys title to the plaintiffs they have to be necessarily put in possession of the suit property.

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The deceased Nalla Pillai has given reasons for executing the settlement deed in favour of his daughter, the 1^st plaintiff stating that out of love and affection and in order to provide security for her the settlement deed has been executed. P.W.1 in her evidence has clearly stated that she was deserted by her husband and has been living with her father. Therefore, it is but a natural that the father would like to 20/22

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provide for the destitute daughter and her children and with this view the said Nalla Pillai has executed the settlement deed.

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Therefore, the Substantial Questions of law Nos.1 and 2 are

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answered in favour of the plaintiffs. Similarly, the substantial question of law no.3 is answered against the defendants.

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In the result, the above Second Appeal is allowed. The Judgement and Decree of the Lower Appellate Court is set aside and

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the Judgement and Decree of the Trial Court is confirmed. No costs.

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21.12.2022

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Index : Yes/No Internet : Yes/No kan

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1.The Subordinate Judge, Sankagiri.

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2.The District Munsif,

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Sankagiri

P.T. ASHA, J,

kan

S.A.No.174 of 1999

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21.12.2022

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Pappal v. Periathambi @ Muthuvel(Died)

Case brief

What is this about?

What did the court decide?

Pappal v. Periathambi @ Muthuvel(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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