Second appeal filed to set aside lower court judgments dismissing a suit for partition. The High Court found no substantial questions of law and dismissed the appeal, confirming the lower decision.
Appeal dismissed; judgment and decree dated 06.02.2016 and confirmation dated 08.08.2022 are confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.144 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.144 of 2023 and C.M.P.No.4139 of 2023
A.M.Sivakumar
...Appellant
Vs.
1.Kaaliammal @ Manoramma
2.Sujatha
3.Vimala
4.A.G.Radhakrishnana
...Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 06.02.2016 made in OS.No.134 of 2011 on the file of the Subordinate Judge, Udhagamandalam, Nilgiris which has been confirmed by the judgment and decree dated 08.08.2022 made in AS.No.29 of 2016 on the file of District Judge, Nilgiris at Udhagamandalam and consequently to allow the above second appeal. For Appellant : M/s.R.Gouri
JUDGMENT
This second appeal is directed as against the judgment and
decree dated 06.02.2016 made in OS.No.134 of 2011 on the file of the Subordinate Judge, Udhagamandalam, Nilgiris which has been confirmed by the judgment and decree dated 08.08.2022 made in AS.No.29 of 2016 on
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the file of District Judge, Nilgiris at Udhagamandalam, thereby dismissed the suit for partition.
their ranking in the trial Court.
and the defendants have become absolute owners of the suit property. No partition had taken place either orally or by any document or by any court decree regarding the bequeathed property. Hence, the suit for partition.
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4.
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entitled for any partition since already due to family arrangement, the entire
properties were alloted in favour of the husband of the first defendant.
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2/ 1966k; Mz;onyna n$hfpft[lh; jdJ ghf chpikia tpl;Lf; bfhLj;Jtpl;lhuh>
3/ jhth brhj;jpy; rp';fphpft[lh;jhd; tPLfs; fl;odhuh>
4/ rp';fphpft[lhpd; kfd;fs; Vw;fdnt ghfk; gphpj;Jf;bfhz;lduh>
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6/ ePjpkd;w fl;lzk; gphpt[ 37(1)d;go brYj;jg;gl ntz;Lkh>
documents were marked as Ex.A.1 to Ex.A.6. On the side of the defendants,
D.W.1 & D.W.2 were examined and Ex.B.1 to Ex.B.7 were marked. Ex.X.1
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and Ex.X.2 were marked as Court documents. After analysing the facts and evidences, the trial Court dismissed the suit for partition with costs. Aggrieved over the judgment and decree of the trial Court, the second plaintiff/ the appellant preferred appeal suit in AS.No.29 of 2016 before the learned District Judge, Nilgiris at Udhagamandalam. The first appellate Court on appreciating the materials placed on records, dismissed the appeal by confirming the judgment and decree passed by the trial Court. Challenging the same, the second plaintiff has come forward with the present second appeal on the following substantial questions of law:
a) Whether the courts below have erred in dismissing the suit for partition when admittedly the suit property was purchased in the name of the minor children by their fathers Singiri Gowder and H.Joghee Gowder respectively who were own brothers and ever since from the date of purchase the property was in joint possession and enjoyment over generation and on record there is no partition which took place between the descendants at any point of time?
b) Whether the courts below have erred in not decreeing the suit for partition since admittedly the plaintiffs and defendants are the common descendants of Johee Gowder and Singiri Gowder who are own brothers and ever since from the date of purchase the property was
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in joint possession and enjoyment over generation and on record there is no partition which took place between the descendants at any point of time?
c) Whether the courts below have erred in not discarding the defence taken by the defendants that family arrangement has been entered between Singiri Gowder and H.Johee Gowder and that the suit property was allotted to Singiri Gowder and H.Joghee Gowder relinquished his right over the suit property in 1966 as the same is absolutely false, after thought and the allegations is against the principles of law as minor's share over the suit property cannot be relinquished without the permission of the court?
d) Whether courts below are right in not applying the proposition of law that minor's share over the suit property cannot be relinquished without the permission of the court which is very vital for adjudication in the present facts and circumstances of the case?
e) Whether the courts below are right in not appreciating in proper perspective that since the property remain as joint nucleus and no effective partition took place between the parties, the plaintiff is entitled to succeed over the suit property and the defendants physical possession over the suit property will not disentitle the plaintiff's right over the same and the concept of ouster raised by the defendant is untenable and against law?
f) Whether the courts below are right in not applying
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the proposition of law that the defendants physical possession over the suit property is deemed to be in possession on behalf of the plaintiff who are co sharer over the joint nucleus suit property which was not subjected to partition by metes and bounds at any point of time from the date of purchase?
no documents have been produced by the defendants in order to prove that there was family arrangement or oral partition between the Singiri Gowder and Joghee Gowder. Admittedly, the property was purchased by their grandfather when they were minors. Therefore, without permission of the Court, the father of the first plaintiff's husband had no right to relinquish the minor son's right over the property. Therefore, even assuming that there was a family arrangement, it is not valid one since at the time of relinquishment of their right of undivided share over the suit property, it cannot be relinquished without the permission of the court. Therefore, they
are entitled for half share over the property. Mere delay in filing the partition suit cannot deny the right over the property. Both the courts below unfortunately dismissed the suit on the ground of delay and they never claimed the suit property till the year 2011.
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8.
9. On perusal of records, revealed that originally the suit property
purchased by the grandfather of the husband of the first plaintiff and the husband of the first defendant in the year 1959 in the name of the minor sons i.e. A.J.Mallan and S.Gopal. The first plaintiff is the wife of A.J.Mallan and the first defendant is the wife of S.Gopal. It was purchased on 07.10.1959 by the registered sale deed. Thereafter, the husband of the first plaintiff died even in the year 1966 itself. There was family arrangement between both the family, in which the suit property was allotted in favour of Singiri Gowder. Thereafter, the said Singiri Gowder had constructed 14 houses in the suit property. The said Singiri Gowder had four sons and they had partitioned the suit property. Accordingly, they are in possession and enjoyment of their respective shares of the suit property. Original sale deed dated 07.10.1959 was marked as Ex.A1. It revealed that the suit property was purchased from one Arulraj in the name of A.J.Mallan and S.Gopal. They were minors at the time of purchasing the suit property. Only after the death of the husband of the first plaintiff, the plaintiffs have come forward with the suit for partition. In fact, the defendants also
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examined DW2, who is the Deputy Block Development Officer, who categorically deposed that the houses were constructed in the year 1969 and since 1970, the houses in door Nos.239 to 252 stood in the name of the said Singiri Gowder and the same was marked as Ex.X1. The tax receipts also stand in the name of the said Singiri Gowder.
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01.03.2023
Index : Yes/No Internet : Yes/No Speaking order/Non-speaking order
lok
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To
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G.K.ILANTHIRAIYAN, J.
lok
S.A.No.144 of 2023
01.03.2023
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3 issues framed by the court
Whether the courts below erred in dismissing the partition suit given the property was purchased by grandfathers for minor children and remained in joint possession?
Whether the other substantial questions of law regarding family arrangement and relinquishment of minor's share warrant interference?
Whether the lack of partition in metes and bounds entitles the appellant to recover their share despite long delay and defendants' possession?
1 provisions across 1 enactments
A.M. Sivakumar
Kaaliammal @ Manoramma
Sujatha
Vimala
A.G. Radhakrishnana
G.K. Ilanthirayan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
