1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.134 of 2011 and MP(MD)No.2 of 2011 M.Sankaran .. Appellant/Defendant Vs. 1.M.Sudalaimuthu @ Muthukutti 2.Subbammal 3.Avudaiammal .. Respondents/Plaintiffs Second Appeal filed under section 100 of CPC against the Judgment and decree dated 15.10.2009 passed in Appeal Suit No.14 of 2009 by the Additional Sub Court, Tirunelveli confirming the Judgment and decree dated 20.12.2005 passed in Original Suit No.917 of 2004 by the Principal District Munsif Court, Tirunelveli. For Appellant : Mr.H.Arumugam For Respondents : Mr.M.V.Krishnan JUDGMENT This second appeal has been directed against the concurrent Judgmnets and decrees passed in Original Suit No.917 of 2004 by the Principal District Munsif Court and in Appeal Suit No.14 of 2009 by the Additional Sub Court, Tirunelveli. 2. The respondents herein as plaintiffs have instituted Original Suit No.917 of 2004 on the file of the trial Court for the reliefs of partition and separate possession of their 7/12 share, wherein the present appellant has been shown as sole defendant. 3. In the plaint it is averred that all the suit properties are originally belonged to Sankaralinga Konar and after his demise his three sons have succeeded his estate. The father name of the plaintiffs 1 and 3 and defendant is Mooka Konar. The suit properties are ancestral in character. The said Mooka Konar has passed away leaving behind him the plaintiffs and defendant as his legal heirs. Amongst the sons of Sankaralinga Konar, a partition has been effected on 29.08.1986, wherein the suit properties have been allotted to the share of Mooka Konar. Since he passed away leaving behind the plaintiffs and defendant as his legal heirs, the plaintiffs in aggregation are entitled to 7/12 share in all the suit properties. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant it is averred that the third plaintiff has been given in marriage on 11.02.1987. Prior to marriage it has been agreed that the marriage expenses should be borne by the first plaintiff and defendant and in lieu of that the plaintiffs 2 and 3 should relinquish their shares. Accordingly, the marriage of the third plaintiff has been conducted by the first plaintiff and defendant and the plaintiffs 2 and 3 have relinquished their shares in the suit properties. The fourth schedule of https://hcservices.ecourts.gov.in/hcservices/ 2 property has already been sold. Therefore, the plaintiffs 2 and 3 are totally estopped from claiming any share in the suit properties and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has granted a preliminary decree stating that the plaintiffs 1 and 2 are in aggregation entitled to get 2/3 share. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.14 of 2009 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 7. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/defendant the following substantial questions of law have been raised for consideration: (a) When the relief sought for in the plaint itself only 7/12 share for all the plaintiffs and when the Courts below have concurrently found that the 3rd plaintiff is not entitled to claim partition and negatived her share of 1/12, whether the Courts below are justified in granting 2/3 share which comes 8/12th i.e more than the claim in the suit? (b) Whether the civil Courts have jurisdiction to grant larger relief than the relief sought for? (c) When the appellant pleaded oral relinquishment of the rights of respondents 2 and 3 over the suit schedule properties and disposed the same in evidence whether Courts below are right in giving a finding that oral relinquishment is not proved without considering that the respondents 2 and 3, who are competent person to deny oral relinquishment did not enter into the witness box and denied same? (d) Whether the Courts below have committed error is not taking adverse interference against the respondents 2 and 3 as contemplated under 114(g) of Indian Evidence Act for not entering into the witness box to deny the oral relinquishment? 9. The sum and substance of the case of the plaintiffs is that the suit properties and some other properties are originally belonged to one Sankaralinga Konar and he passed away leaving behind him his three sons and on 29.08.1986 a partition has been effected, wherein the suit properties have been allotted to the share of the father of the plaintiffs 1 and 3 and defendant by name Mooka Konar and he passed away leaving behind the plaintiffs and defendant and since the defendant is https://hcservices.ecourts.gov.in/hcservices/ 3 not amenable for having partition, the present suit has been instituted for the reliefs sought for in the plaint. 10. The defence taken on the side of the defendant is that the marriage of the third plaintiff has been conducted on 11.02.1987 and prior to marriage it has been agreed that the marriage expenses should be borne by the first plaintiff and defendant and in lieu of that, the plaintiffs 2 and 3 have to relinquish their shares in the suit properties and accordingly the first plaintiff and defendant have conducted the marriage of the third plaintiff by way of spending their amounts and subsequently the plaintiffs 2 and 3 have relinquished their shares. Under the said circumstances, the plaintiffs 2 and 3 are estopped from claiming any share in the suit properties and now the first plaintiff is having half share and the defendant is having remaining half share and therefore, the present suit deserves to be dismissed. 11. The trial Court after making elaborate discussion has come to a definite conclusion that the suit properties are the separate properties of Mooka Konar, father of the plaintiffs 1 and 3 and defendant. Further the trial Court has given a finding to the effect that since the fourth schedule of property has been sold so as to conduct the marriage of third plaintiff, the third plaintiff is not entitled to get the relief of partition and finally the trial Court has given a preliminary decree to the effect that the plaintiffs 1 and 2 in aggregation are entitled to get 2/3 share, whereas the defendant is entitled to get 1/3 share and the first appellate Court has also conceded the quantum fixed by the trial Court. 12. The learned counsel appearing for the appellant/defendant has attacked the concurrent Judgments and decrees passed by the Courts below on the following grounds: (a) In the plaint at paragraph-6 it is mentioned that the plaintiffs in aggregation are entitled to get 7/12 share in all the suit properties and therefore, the plaintiffs have waived their right of claiming correct quantum of their shares. Under the said circumstances, the Judgments and decrees passed by the Courts below are totally erroneous. (b) As per agreement entered into in between the plaintiffs and defendant the first plaintiff and defendant have spent their money so as to conduct the marriage of the third plaintiff and subsequently the plaintiffs 2 and 3 have orally relinquished their shares and the Courts below have failed to consider the same. 13. As adverted to earlier, the trial Court after making elaborate discussion has come to a definite conclusion to the effect that the suit properties are the separate properties of Mooka Konar. Since the suit properties are separate properties of Mooka Konar, the plaintiffs as well as defendant are each having 1/4 share. The trial Court has given a finding to the effect that since fourth schedule of suit property has been sold so as to conduct the marriage of the third plaintiff, the third plaintiff is not entitled to get the relief of partition and subsequently the trial Court has fixed quantum of shares of the plaintiffs as 2/3 share. https://hcservices.ecourts.gov.in/hcservices/ 4 14. Considering the fact that the suit properties are the separate properties of Mooka Konar and also considering that the third plaintiff is not entitled to any share in the suit properties, quantum of shares fixed by the trial Court in preliminary decree is perfectly correct. Of course it is true that in the plaint at paragraph-6 it is averred to the effect that the plaintiffs in aggregation are entitled to get 7/12 share. Even though in the plaint it has been averred as mentioned supra, the trial Court after considering the nature of the properties has come to a definite conclusion that the suit properties are the separate properties of Mooka Konar. Therefore, question of waiver does not arise in the present case. 15. Now the Court has to look into the second ground urged on the side of the appellant/defendant. The second ground is that as per agreement alleged to have been entered into in between the plaintiffs and defendant, the first plaintiff and defendant should conduct the marriage of the third plaintiff by way of spending their own money and accordingly they conducted the marriage of the third plaintiff and the plaintiffs 2 and 3 have orally relinquished their shares in the suit properties. Considering the fact that oral relinquishment has been put forth on the side of the defendant, it is needless to say that the said plea is totally inadmissible in law and further there is no sufficient evidence available on the side of the defendant so as to encrust the said plea and therefore, the second ground urged on the side of the appellant/defendant also goes out without merit. 16. The Courts below after considering the divergent contentions raised on either side have rightly rejected the defence taken on the side of the appellant/defendant. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and altogether the present second appeal deserves to be dismissed and since the present second appeal deserves to be dismissed, the substantial questions of law raised on the side of the appellant/defendant are not having substance at all. 17. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous Petition is also dismissed. The concurrent Judgments and decrees passed by the Courts below are confirmed. Sd/- Assistant Registrar /True copy/ Sub Assistant Registrar To 1.The Additional Sub Court, Tirunelveli 2.The Principal District Munsif Court, Tirunelveli. +1cc to Mr.H.Arumugam, Advocate, SR.No.21309 mj : GH : 26.07.2011 : 4p/4c SA (MD) No.134 of 2011 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/