V.Raman Vs Kali

Second Appeal filed under Section 100 C.P.C. against the judgment and decree dated 22.03.2013 passed in A.S.No.17 of 2012 on the file of the III Additional District Court, Vellore at Tiruppattur, confirming the judgment and decree dated 11.11.2011 made in O.S.No.2 of 2009 on the file of the Sub Court, Tiruppattur.

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For Appellant : Mr.T.M.Hariharan For RR 1 and 2 : Mr.PA.Sudesh Kumar For R3 : No appearance

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J U D G M E N T

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This Second Appeal has been filed to set aside the judgment and decree

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dated 22.03.2013 passed in A.S.No.17 of 2012 by the learned III Additional District Judge, Vellore at Tiruppattur, confirming the judgment and decree dated 11.11.2011 made in O.S.No.2 of 2009 by the learned Subordinate Judge, Tiruppattur.

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2. Heard M r.T.M.Hariharan , learned counsel for the appellant and

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Mr.PA.Sudesh Kumar, learned counsel for the respondents 1 and 2 and perused

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the materials available on record.

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3. For the sake of convenience, the parties are referred to as per their rank in the suit as plaintiffs and defendants.

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4. The 2^nd defendant is the appellant. The plaintiffs have filed the suit for partition of their ½ share in the suit properties. The trial Court had allowed the suit and passed a preliminary decree for partition of ½ share and on the first appeal preferred by the 2^nd defendant, the first appellate Court dismissed the first appeal and confirmed the judgment and decree of the trial Court. Aggrieved over that, now, the 2^nd defendant has preferred this second appeal.

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5. The short facts pleaded by the plaintiffs in their plaint are as

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under :

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5.1. The plaintiffs 1 and 2 are sisters and unmarried daughters of the 1^st defendant. The 2^nd defendant is the son of the 1^st defendant. The plaintiffs and the defendants are members of the joint family.

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5.2. The suit properties and other properties originally belonged to the plaintiffs' great grandfather Periya Vellai Gounder and he died intestate. After the demise of Periya Vellai Gounder, his two sons viz ., Raman/2^nd defendant and Govindan had partitioned the family properties orally and in the oral partition, an extent of 18 acres and 40 cents in S.No.113 was allotted to the share of the 2^nd defendant, who is the father of the 1^st defendant and grandfather of the plaintiffs.

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5.3. Ramasamy, Tirupati, Govindasamy and 1^st defendant are the sons of

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one Raman. Pursuant to the oral parition that occurred amongst the 1^st defendant and his brothers, an extent of 3 acres in S.No.113 was allotted to the share of the joint family, comprising the plaintiffs and the defendants. Hence, the suit properties are ancestral properties of the plaintiffs and defendants and they are in joint enjoyment of the same.

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5.4. The suit items No.2 to 4 were purchased from and out of the joint family income derived from the 1^st item of the suit property. The 2^nd defendant has been managing the properties on behalf of the joint family and he also purchased other properties from the income derived from the joint family. As

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the plaintiffs are unmarried daughters, they are also coparcenars to the ancestral https://www.mhc.tn.gov.in/judis 3/15

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properties and have equal rights. As the 2^nd defendant acted against the interest of the plaintiffs and refused to allot their shares, they filed a suit seeking

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partition and separate possession along with the relief of permanent injunction.

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6. The 2nd defendant defended the suit by making the following

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contentions in his written statement :

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6.1. The land measuring 18 acres and 40 cents in S.No.113 situated in Yelagiri Village was acquired by Periya Vellai Gounder through purchase, by virtue of a sale deed dated 01.05.1930. He had other properties also. It is false to state that after the demise of Periya Vellai Gounder, his sons viz ., 2^nd defendant and Govindan orally partitioned the properties and in the said partition, the lands measuring 18 acres and 40 cents in S.No.113 were allotted to the share of 2^nd defendant.

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6.2. There was a partition in which 3 acres in S.No.113 was allotted to the share of the 2^nd defendant and an extent of 10 cents was given to the 1^st plaintiff, in which a house was constructed and an extent of 7 cents was allotted to the 2^nd plaintiff and she has constructed a house for her.

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6.3. The 2^nd defendant, who was in exclusive enjoyment of the suit properties, had sold a portion of the property in S.No.113 measuring 7 cents each to the third-parties viz. , Rajendran, Thavamani and Manikodi, by executing sale deeds in their favour. It is false to state that the 1^st item of the suit property is a joint family property and that the suit items No.2 to 4 were purchased from and out of the income derived from the 1^st item of the suit property. The other properties were purchased by the 2^nd defendant. Hence, the plaintiffs do not have any share in the same.

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7. On the basis of the pleadings, the trial Court has framed the following

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issues :

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thjp tHf;Fiuapy; nfhhpago ghfg;gphptpidg; ghpfhuk; bgw chpik cilatuh >

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tHf;F 1k; ,dr; brhj;jhdJ 1/ 2 gpujpthjpfs; kw;Wk; thjpfs; ml';fpa Tl;L FLk;gr; brhj;Jf;fs; vd;gJ rhpah >

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2k; gpujpthjp mtuJ kfd; nfhtpe;jrhkpapd; tUkhdj;ijf; bfhz;L tHf;F 2tJ mapl;l brhj;ij fl;odhh; vd;gJ rhpah >

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thjpfs; uhn$e;jpud;/ jtkzp kw;Wk; kzpf;bfho Mfpnahh;fs; tHf;fpy; jug;gpdh;fshfr; nrh;f;fhjjhy; tHf;F epiyf;fj;jf;fjy;y vd;gJ rhpah >

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tHf;fpw;F tHf;F \yk; ,y;iy vd;gJ rhpah >

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thjpf;F fpilf;ff;Toa ghpfhuk; vd;d >

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8. During the course of the trial, on the side of the plaintiffs, two

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witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A4 were marked.

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On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and Ex.D1 to Ex.D4 were marked.

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9. At the conclusion of the trial and on considering the evidence

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available on record, the Trial Court has decreed the suit and passed a preliminary decree for ½ share of the plaintiffs in the suit property. The first appeal preferred by the 2 nd defendant was also dismissed by confirming the judgment of the trial Court. Now, the 2 nd defendant had filed this second appeal,

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by claiming that the following substantial questions of law arise in the second

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appeal :

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Whether the suit for partition is not bad for non-joinder of alienees of portions of suit item 1, long prior to suit under Exhibits B1 to B3 ?

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Whether the suit is not bad for non-joinder of Govindasmay son of the appellant and a co-owner of suit items 2 to 4 with the appellant ?

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Have not the Courts below completely misdirected themselves in placing the burden on the appellant to show that suit items 2 to 4 are his separate properties ?

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Is not the burden on respondents 1 and 2 to plead and prove that the joint family had substantial properties with considerable nucleus yielding sufficient surplus at the relevant time for

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5.

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construction/acquisition of suit items 2 to 4 ?

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Have not Courts below grievously erred in decreeing suit with respect to suit items 2 to 4 as well, even in the absence of required pleading, leave alone proof in this regard ?

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10. Appellant's arguments :

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Though the 2 nd defendant had asserted that there was an oral partition and

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that he had been in enjoyment of the properties by encumbering the same, the

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plaintiffs have not chosen to implead them as parties in whose favour the 2nd defendant had sold portions of the suit property through Ex.D1 to Ex.D3. Therefore, the suit is bad for non-joinder of necessary parties. The tractor and trailer which is shown as suit items No.3 and 4 respectively, stand in the name of the 2 nd defendant. The third parties have come into possession in the year 1996 and the sale made to the said third parties have not been challenged so far and hence, the suit is barred by limitation. But, the Courts below did not consider these aspects before decreeing the suit.

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11. The learned counsel for the respondents submitted that the oral partition pleaded by the 2 nd defendant has no proof. There is no such oral partition in the year 1995 and the suit item No.1 was allotted in favour of the 2nd defendant. The best person who has to speak about the alleged oral partition

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of the year 1995 is the father of the 2 nd defendant, who has been arrayed as the

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1st defendant. The 1 st defendant in the plaint was set ex parte by the trial Court and he did not support the case of the 2 nd defendant. So, the trial Court and the first appellate Court has rightly appreciated the evidence and accepted that the plaintiffs and the 1 st defendant constituted a joint family and they are entitled to the shares as prayed. It is evident that the 2 nd defendant did not know the month and date during which the oral partition had taken place in the year 1995. Even the sale deeds executed in favour of the third parties by the 2nd defendant also do not make any mention about the alleged partition in the year 1995. The 2 nd defendant who was examined as D.W.1, is not able to state what was the share given to his father in the alleged oral partition of the year 1995. So, the Courts below have rightly rejected the claim of oral partition of the 2 nd defendant.

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12. The fact that the relationship between the plaintiffs and the defendants is admitted. The further fact that the suit item No.1 has been allotted to the share of the 1 st defendant in the family partition entered into between the brothers was also denied. While the plaintiffs claim that the suit property is a joint family property and they are also entitled to an equal share in

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the same along with the defendants, the 2 nd defendant claims that the suit

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property has been allotted to his individual share, in pursuance of the alleged oral partition taken place in the year 1995.

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13. It is claimed by the 2 nd defendant that he has executed the sale deeds in favour of third parties and alienated portions of the suit property in the year 1996 itself and those sale deeds have not been challenged and the purchasers have also been not impleaded as parties. As the suit item No.1 was originally owned by the great grandfather of the plaintiffs, viz ., Periya Vellai Gounder and after his demise, a portion of the property owned by Periya Vellai Gounder has been allotted to the share of the 2 nd defendant.

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14. There is no quarrel about the character of the suit property that it is an ancestral property. The plaintiffs are the unmarried daughters of the 1st defendant and hence, they are also coparceners in their capacity as joint family members. This fact cannot be denied in view of the subsequent amendment brought to the Hindu Succession Act in the year 2005. So, there cannot be any disagreement with regard to the position of law by accepting the daughters also as coparceners in the joint family properties.

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15.

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15. The specific contention of the 2 nd defendant is that an oral partition

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had already taken place in the family and he has been allotted with the whole of 3 acres and the first and second plaintiff were given with 10 cents and 3 cents respectively and in which, houses were constructed and given to them. To substantiate this contention, the 2 nd defendant has not produced any documentary evidence.

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16. When the plaintiffs have established that the property is an ancestral property, the burden would shift upon the 2 nd defendant to prove that it was an ancestral property which has been allotted to his exclusive share in an oral partition. Much stress was made in respect of the sale deeds executed by the 2nd defendant in favour of third parties in the year 1996 by alienating portions of the suit property measuring 7 cents each. So, it is claimed that the purchasers viz. , Rajendran, Thavamani and Manikodi are also necessary parties, but, they have not been impleaded in the suit.

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17. It is the further contention of the 2 nd defendant that the tractor and trailer which have been described as suit items No.3 and 4 respectively, stand in the name of the 2 nd defendant and that would also prove the factum of oral partition. As the 2 nd defendant claims oral partition in the partition suit filed by

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the plaintiffs viz ., his great granddaughters and in which their father (Vellai/ 1st defendant) has also been arrayed as the 1 st defendant, the best person who could speak about the claim of oral partition can be the 1 st defendant.

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18. The 1 st defendant remained ex parte and he did not come forward to vouch the statement of the 2 nd defendant claiming oral partition. The plaintiffs being unmarried granddaughters, it could be possible that the 2 nd defendant, as their grandfather, was in management of the suit properties. The parties did not dispute the fact that the 2 nd defendant has been managing the suit properties, but, still, it can be construed as management on behalf of the joint family.

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19. No doubt, the 2 nd defendant alientated portions of the suit property in favour of third parties. But, the third parties can acquire title only to the extent of title possessed by their vendors. If the plaintiffs can establish that the properties remain undivided, then, whatever interest alienated by the 2nd defendant in favour of third parties would represent his undivided share and the third parties. After determining the shares of the parties, the purchasers from the 2 nd defendant, can very well be impleaded as parties to the final decree and get their respective portion allotted from and out of the shares determined for the 2 nd defendant.

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20.
viz.,

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20. The other contention is that the son of the 2 nd defendant,

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viz., Govindasamy, also is a co-owner, but he has not been made as a party in the suit for partition. The plaintiffs and the 2 nd defendant would stand as one branch of the respective parents and hence, non-inclusion of the other son of the 2 nd defendant does not affect the suit for partition, as the 2 nd defendant is very much a party who represents his branch. The substantial question of law

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No.1 and 2 are answered against the appellant/2 nd defendant.

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21. It is not the contention of the 2 nd defendant that he had sold the above portions for meeting the expenses of the joint family in his capacity as manager of the 1 st item of the suit property. All along, the 2 nd defendant claims that he has been allotted the whole of the 1 st item of the suit property and he has acquired absolute title over the same. The 1 st defendant has not been examined, and in fact, he has been set ex parte and the 2 nd defendant, who has been examined as D.W.1, has stated that he is not aware as to when the alleged oral partition had taken place.

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22. It is right for the Courts below to reject the claim of oral partition. Admittedly, no sub-division had taken place in the suit item No.1 and the 2nd defendant did not have any exclusive revenue records in his name in respect

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of 1 st item of the suit property. The failure on the part of the 2 nd defendant to

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prove the oral partition, would only give an inference that the suit item No.1 remained as a joint family property and he was in joint enjoyment of both the plaintiffs and the defendants. It was also not established that the 2 nd item of the suit property viz. , the house situated in suit item No.1, was put up by the 2nd defendant with his own income. As the house stands in the 1 st item of the suit property, it can be presumed that it forms part of the joint family property.

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23. The Courts below had shifted the burden on the 2 nd defendant, only after the plaintiffs could establish that the 1 st item of the suit property is a joint family property and that the 2 nd defendant was managing the properties from the income derived from the agricultural lands. The 2 nd defendant himself has stated that he is in possession of the suit property and hence, an admitted fact need not be proved. The Courts below have rightly shifted the burden on the 2nd defendant only after the plaintiffs have proved their case that the suit properties are joint family properties and that it was in enjoyment of the 2nd defendant and he was managing the income derived from the same. So there is no mistake in shifting of burden on the appellant/2 nd defendant. Thus, the

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substantial questions of law No.3 and 4 are answered against the appellant/

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2nd defendant .

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In the result, this Second Appeal is dismissed and the judgment and

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decree dated 22.03.2013 of the first Appellate Court in A.S.No.17 of 2012 on the file of the III Additional District Court, Vellore at Tiruppattur, confirming the judgment and decree dated 11.11.2011 made in O.S.No.2 of 2009 on the file of the Sub Court, Tiruppattur, is confirmed. No costs.

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22.01.2025

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Index : Yes/No Neutral Citation : Yes/No gya

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To 1.III Additional District Court Vellore at Tiruppattur

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