Appeal against a partition decree. Trial Court held alleged oral partition relinquishment invalid, granting plaintiffs 4/5 share and dismissing injunction. High Court allowed plaintiffs, confirming trial judgment.
Appeal suit dismissed; trial court decree confirming partition of 4/5 share to plaintiffs confirmed; no costs.
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.
A.S(MD)No.256 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 31.01.2024
Pronounced on: 25 .03.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
A.S(MD)No.256 of 2021
and CMP(MD) No.8748 of 2021
(The 2nd appellant become a major on 25.01.2016 filed this appeal suit without the power)
.Vs.
(Cause title accepted vide court order dated 23.09.2021 in CMP(MD) No.7816 of 2021)
Prayer : This Appeal Suit has been filed under Section 96 of C.P.C.,
against the judgment and decree dated 21.07.2020 made in O.S.NO. 52 of 2011 on the file of the I Additional District Judge, Tirunelveli
For Appellants : Mr.S.Mani For Respondent : Mr.G.Thalaimutharasu
JUDGMENT
This Appeal Suit has been filed as against the judgment and decree passed in O.S. No. 52 of 2011 on the file of the I Additional
A.S(MD)No.256 of 2021
District Jude, Tirunelveli, Wherein respondents 1 to 4 herein have filed a suit for the relief of partition and the same was decreed.
2.As against the decree and judgment passed by the trial Court, the second and third defendants have preferred this present appeal.
4 . The gist of the plaint averments are as follows:
Originally the suit properties belongs to one Kannan @ Sudalaikan, S/o.Balaiya Thevar. The first scheduled property is residential house and second schedule property is agricultural land and the same was purchased by the said Kannan @ Sudalaikan through sale deed dated 12.07.2001. The said Kannan @ Sudalaikan died intestate on 23.06.2006 leaving behind his wife first plaintiff and his daughters 2 to 4 plaintiffs and first defendant as his legal heirs to succeed his estate. The plaintiffs and the first defendants are in joint possession and enjoyment of the suit property. The plaintiffs are entitled to 4/5 share and the first defendants is entitled
A.S(MD)No.256 of 2021
to 1/5 share over the suit properties. The first defendant colluded with the second defendant sold the second schedule of the property on 30.06.2011 through sale deed. Based on that sale deed the second defendant attempted to interfere with the plaintiffs peaceful possession and enjoyment over the property. The plaintiffs 1 and 3 have plantained banana plantains in the second schedule of the property. The first defendants settled at Mumbai and even during the life time of his father itself had never raised any crops in the second schedule property. The second defendant along with their henchmen created a fence over the second schedule property .Thereafter the plaintiffs came to know that the first defendant executed sale deed in favour of the third defendant who is the minor son of the second defendant. Therefore he is also added as party. Hence the plaintiffs filed the suit for partition of their 4/5 share over the suit properties.
5 . The brief averments of the written statement filed by the first defendant are as follows:
The suit is not maintainable either in law or on facts and the same is liable to be dismissed. The relationship of the parties and the nature of properties are admitted . It is denied that the plaintiffs are in joint possession with the defendants and they have 4/5
A.S(MD)No.256 of 2021
shares over the property. Infact the plaintiffs have no right over the suit properties At any point of time during the life time of his father the first defendant left from the matrimonial home and stayed separately with another person. The defendants 2 to 4 are under the maintenance of the first defendant and he only performed marriage to them. Therefore the father of the first defendant during his life time in the presence of relatives and plaintiffs 2 to 4 orally relinquished the properties to him, thereafter the first defendant alone is in possession and enjoyment of the properties till 23.06.2006. The first defendant sold the property to third defendant through second defendant on 30.06.2011 and the possession was also given to them on the date of sale itself. The plaintiffs have no right over the property and thereby they are are not entitled to any share over the property.
6. The written statement filed second defendant are as follows.
The suit is not maintainable either in law or on facts and the same is liable to be dismissed. limine. The plaintiffs have not come to this Court with clean hands. The relationship between the parties are admitted. The father of the first defendant during his life time in the presence of 2 to 4 plaintiffs orally partitioned the properties and
A.S(MD)No.256 of 2021
allotted the property to the first defendant. The first plaintiff was living with another man for the past so many years. The first defendant alone was in possession and enjoyment from 23.03.2006. Since the property was allotted to the first defendant through oral partition the plaintiffs have no right over the property. The revenue records also stands in the name of the first defendant. Whileso, on 30.06.2011 this defendant purchased the property and she has been in possession and enjoyment of the property. She purchased the property for good and valuable consideration therefore she is a bonafide purchaser. The plaintiffs are not entitled to any share over the suit property, therefore the suit is liable to be dismissed.
the trial Court has framed the following issues:
mth;fSf;Fhps gq;if nghWj;J Kjy; epiy jPh;g;ghiz ngwj;jf;fth;fsh?
A.S(MD)No.256 of 2021
A.S(MD)No.256 of 2021
Additional Issues
gpuhJ jgrpy; nrhj;Jf;fis 1k; gpujpthjpapdl jfg;gdhh;> 1k;
gpujpthjpf;F ,;lkhd tha;nkhop tpLjiy nra;J nfhLj;Jtpl;ljhfTk; me;j ,;lkhd tpLjiy 23.06.2006 ehspNyNa nraYf;Fk; te;Jtpl;lJ vd;Wk; 1k; gpujpthjp $WtJ rhpah?
8.Before the trial Court on the side of plaintiff, P.W.1 was examined and documents Ex.A1 to A7 were marked. On the side of the defendants D.W.1 to D.W 3 were examined and four documents were marked as Ex.B.1 to B4.
Grounds of Appeal
A.S(MD)No.256 of 2021
the proceedings. As such the judgment and decree has to be set aside and remanded to the trial Court for a fresh consideration.
3)The lower court ought to have held that the plaintiffs are not entitled for partition as they claimed. The 1st respondent/1st plaintiff divorced the said deceased Sudalaikan under the customary law and she married another man. The facts completely ignored by the trial Court. The second respondent/1st plaintiff did not enter into the witnesses box to rebuttal evidence of defendants.
A.S(MD)No.256 of 2021
the suit schedule property under law.
A.S(MD)No.256 of 2021
appellant/defendants 2 and 3 have purchased the suit properties from the fifth respondent/first defendant for good and valuable consideration and after the sale deed they are in exclusive possession and enjoyment of the suit properties. In this context on the side of defendants they have D.W.1 to 3 and marked exhibits B.1 to B.4. But the trial court without considering the evidences erronesouly decreed the suit in respect of partition and correctly dismssied the relief of permant injunction. At the time of filing of suit the third defendants i.e.,second appelant herein was not represented by any guardian and court also not appointed Court guardian to conduct the trial proceedings thereby the entire trial is vitiated. Thereore the decree and judgement passed by the trial Court are liable to be set aise by allowing this appeal.
A.S(MD)No.256 of 2021
defendants and fifth respondent/first plaintiff. The said Kannan died intestate on 23.06.2006 leaving behind the plaintiffs and the first defendant as legal heirs. The first defendants has taken plea that the properties were orally granted to him and thereby he was in exclusive possession of the properties and he sold the property to the second and third defendants on 30.07.2011 but the trial Court after elaborate discussion considering the evidence granted for the relief of partition by holding that the alleged oral grant of the father of the first defendant is not valid in the eye of law. The second appellant/third defendant was minor at the time of institution of the suit and he was represented through his mother first appellant/second defendant. Initially the suit was filed against the defendants 1 and 2 and the third defendant represented through her guardian mother and thereafter the plaint was amended on 04.09.2013 and the third defendant minor was represented through his mother/guardian therefore the minor was represented and thereby the trial Court also correctly decreed the suit in respect of partition, hence the present appeal is liable to be dismissed.
A.S(MD)No.256 of 2021
through guardian ?
2)Whether the respondents 1 to 4/ plaintiffs are entitled to the relief of partiton over suit properties?
3)Whether the appel has to be allowed or not?
4)To what relief the appellants are entitled to?
Point No.1
A.S(MD)No.256 of 2021
on 12.06.2015. Thereafter the record shows that the minor attained majority on 25.01.2016. Thereafter the suit was decreed on 21.07.2020 i.e after the minor attaining majoriy, therefore from the above it is clear that the minor 3rd defendant was duly represented before the trial Court, thereby the contention of the appellants that the minor was not represented property is not acceptable. The learned counsel appearing for the respondents 1 to 4 has relied judgment of this Court in the case of P.Suresh Vs R.Rengasamy and others in S.A.No.224 of 2007 . On careul perusal of the above said judgment it clear that if the interest of the minor was ably defended by the natural guardian then guardian was not formally appointed by the Court and the decree passed against him is not void. In the case on hand also the minor was duly represented through his guardian amother and thereafter he was represented through power agent and after four year from the date of attaining majority the decree was pased by the trial Court. There is no any objection raised before the trial Court in respect of the alleged non representation of minor through guardian and now at the appellate stage they have taken the new plea. Therefore the contention of the appellant in this regard is not acceptable and this Court holds that the minor was duly represented through guardian . Thus the point is answered.
A.S(MD)No.256 of 2021
Point No.2
A.S(MD)No.256 of 2021
The oral grant is not valid. The appellants/defandants 2 and 3 are admitted that they are the legal heirs of the deceased Kannan therefore the plaintiffs being the legal heirs of the deceased Kannan @ Sudalaikan and the first defendant are equally entitled to suit properties. The first defendant is only entitled to 1/5 share over the properties and thereby he could alienate the property to an extent of 1/5 share only. Therefore the appellants each are only entitled to 1/5 share over the property and the respondents 1 to 4/ plaintiffs 1 to4 are entitled to 4/5 share over the property. Therefore the plaintiffs are entitled to 4/5 share over the suit property. Thus the point is answered.
Point No.3
A.S(MD)No.256 of 2021
evidence decreed the suit in respect of partition and dismissed the suit in respect of permanent injunction. The trial Court in its judgment elaborately discussed about the rights of the parties and there is no dispute in respect of relationship of the parties and the defendants has taken plea of oral relinquishment and the same has not been proved by the defendants and the said oral relinquishment is not valid in the eye of law and thereby the trial Court correclty granted partition to the plaintiffs . Therefore the decree and judgment passed by the trial Court are reasoned one and warrants no interference. Thus the point is answered.
16.Therefore as discussed supra, this Court is of the opinion that the present appeal has no merits and deserves to be dismissed.
25.03.2024
NCC : Yes/No Index : Yes/No Internet: Yes/No aav
A.S(MD)No.256 of 2021
To:
A.S(MD)No.256 of 2021
P. DHANABAL,J.
aav
A.S(MD)No.256 of 2021
25.03.2024
3 issues framed by the court
Whether the minor third defendant was duly represented by a guardian during the trial proceedings?
Whether the plaintiffs and first defendant are equally entitled to shares in the deceased father's property despite claims of oral partition?
Whether the alleged oral relinquishment of property to the first defendant is valid in law?
Colour shows how this judgement treated each authority
P.Suresh Vs R.Rengasamy and othersRelied on¶98
P.Suresh Vs R.Rengasamy and others in S.A.No.224 of 2007
1 provisions across 1 enactments
Kalaiarasi
Subbien
Esakiammal
Malliga
Balammal
Shanmugathai
P. DHANABAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P. DHANABAL
Parties & counsel
