IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.385 of 2008 Sengoda Goundar .. Appellant/Plaintiff Vs 1.Arunachalam 2.Sellammal .. Respondents 1 and 2/ Defendants 1 and 2 Prayer: This Appeal Suit has been preferred under Section 96 C.P.C., praying to set aside the judgment and decree passed in O.S.No.40 of 2005, dated 12.10.2007 on the file of the Additional District Court, Fast Track Court No.II, Salem. For Appellant : Mr.N.Srinivasan For Respondents 1 & 2 : served JUDGMENT This appeal has been arising out of the judgment and decree dated 12.10.2007 made in O.S.No.40 of 2005, on the file of the Additional District Court, Fast Track Court No.II, Salem. 2.The averments made in the plaint are as follows: (i) The plaintiff and the first defendant are own brothers. The second defendant is the wife of the first defendant. 'A' schedule properties are belonging to the plaintiff and 'B' schedule properties are belonging to the first defendant. Their father Kandappa Goundar allotted above said properties to the plaintiff and the first defendant in an oral partition, which was effected in the joint family in the year 1982. For past 23 years, the plaintiff and the first defendant are in possession and enjoyment of their respective shares separately in their own right without any let or hindrance. Both the parties are paying kisths to their respective shares separately. https://hcservices.ecourts.gov.in/hcservices/ (ii) After partition, the plaintiff, out of his own funds, has purchased 'C' schedule properties along with one Kandasamy Goundar, son of Ramasamy Goundar on 11.10.1984. He alone is in possession and enjoyment of his ½ share in his own right by paying kisths and mutation of revenue records. (iii) Now the first defendant is making false claims and started to cause disturbance to the plaintiff in respect of his shares in 'A' schedule properties as against the family arrangements made in the year 1982. So the plaintiff is constrained to file the suit for declaration of 'A' schedule properties and in the alternative for general partition of 'A' and 'B' schedule properties and also for permanent injunction in respect of his own 'C' schedule properties. (iv) Originally, 'A' and 'B' schedule properties are belonging to one Ramaiya Goundar. He had two sons, one is Kandappa Goundar, father of the plaintiff and the first defendant and another one is Sengoda Goundar. After the death of Ramaiya Goundar, his two sons Kandappa Goundar and Sengoda Goundar divided the properties equally. Kandappa Goundar has purchased some properties under a registered sale deed dated 20.02.1957 on behalf of joint family i.e. portion of the 'A' schedule properties. 'B' schedule properties were purchased out of the joint family nucleus by the first defendant and the first defendant has played fraud in obtaining the sale deeds. The first defendant vindictively and fraudulently had taken the sale deeds one in his name and another in the name of his wife Sellammal, the second defendant. Then only, a difference of opinion arose and the partition has been effected. 'A' schedule properties are allotted to the plaintiff and 'B' schedule properties purchased in the name of the first defendant and the second defendant are allotted to the shares of the first defendant. Their father Kandappa Goundar has not taken any share in the properties. (v) Prior to partition in the year 1982, the first defendant resided only in the joint family and doing agricultural operations only. He has no individual income at any point of time to purchase the property. After the partition, due to the controversy, the defendants shifted their family to Manivailunthan village, Athur and residing permanently. Right from 1982, there is no joint family and joint family properties belonging to Kandappa Goundar. 'A' schedule properties are in possession and enjoyment of the plaintiff. 'B' schedule properties are in possession and enjoyment of the first defendant and they are paying kisths separately to their respective shares. (vi) Brother of Kandappa Goundar by name Sengoda Goundar died. After his death, the legal heirs of Sengoda Goundar viz., his wife Muthayammal and her minor son Athiyappa Goundar sold their shares to one Ramasamy Goundar, son of Nanjappa Goundar under a registered sale https://hcservices.ecourts.gov.in/hcservices/ deed 15.09.1954. The said Ramasamy Goundar died leaving behind his two sons viz., Sengoda Goundar and Kandasamy Goundar. They partitioned the properties and Sengoda Goundar sold his share to his brother Kandasamy and the plaintiff under a registered sale deed dated 11.10.1984 with specific boundaries. The properties purchased by the plaintiff has been described as 'C' schedule properties. (vii) The plaintiff submits that he is in separate, constrictive, uninterrupted continuous possession and enjoyment of the 'A' schedule properties for more than statutory period. So he perfected his title and adverse possession also. (viii) The first defendant has also created an agreement in favour of the third parties in respect of 'A' schedule properties in order to create encumbrance behind back of the plaintiff and also he has got right over the same. So the plaintiff is constrained to file the suit for declaration of 'A' schedule properties and alternatively partition of ½ share of 'A' and 'B' schedule properties and also for permanent injunction in respect of 'C' schedule properties and prayed for a decree. 3.The gist and essence of the written statement filed by the defendants is as follows:- (i) 'A' schedule properties are not belonging to the plaintiff. 'B' schedule properties are belonging to the defendants. There is no partition in the year 1982. A family arrangement was only taken place in the year 2000. The plaintiff on a malafide intention, adopted foul play and prevented from partition of 'A' schedule joint family properties. But the plaintiff purchased 'C' schedule properties and for his own and enjoying the same. (ii) 'A' schedule properties are undivided Hindu joint family properties of the plaintiff and the first defendant. 'B' schedule properties are self acquired individual properties of the defendants. 'C' schedule properties are self acquired properties of the plaintiff as such the question of declaration of 'A' schedule properties and partition of 'A' and 'B' schedule properties does not arise. (iii) The father of the second defendant out of his love and affection, out of his money and out of srithana amount of his daughter purchased 'B' schedule properties, which are situated adjoining his lands. Since 'B' schedule properties are self acquired absolute properties of the defendants as such the question of partition and division of 'B' schedule properties does not arise. The father of the first defendant Kandappa Goundar live separately till 1990 and afterwards live both with the plaintiff and the defendants' family alternatively 6 months. (iv) The plaintiff has not prescribed title by adverse possession in respect of 'A' schedule properties. 'A' schedule properties are the undivided Hindu joint family properties of the plaintiff and the first defendant. Both of them are in joint https://hcservices.ecourts.gov.in/hcservices/ possession and enjoyment and both of them are paying kisths and other taxes to the Government regularly as such the question of adverse possession does not arise in respect of co-sharers and co-owners property. (v) The plaintiff is residing in the house bearing D.Nos.1/22 and 1/23 is using as power loom shed. Their father Kandappa Goundar and his wife residing only in the house bearing D.No.1/25 along with the defendants. The plaintiff with an ulterior motive to evict the defendants from their house. Kandappa Goundar did not execute any unregistered will dated 19.01.1995 in respect of 'A' schedule properties. It is a forged one. Even though patta has been effected, the R.D.O. and D.R.O. after perused the forged Will and other records and find out that the order passed by Tahsildar on the basis of the forged will is wrong and set aside the order of him. The plaintiff with a view to encumber the 'A' schedule properties and to create records, created an alleged partition deed dated 06.09.2001 between him and his son, which is a created one and never acted upon and not at all bind the defendants. (vi) The defendants are having ½ share in the 'A' schedule properties, but only the plaintiff with a view to grab the ½ share of the defendants giving all sorts of unnecessary troubles and also created forged records. (vii) The plaintiff and his son Kandasamy and the first defendant jointly executed a sale agreement in favour of one Rajamanickam on 14.04.1997. So the plaintiff with a view to defeat and defraud the lawful share in 'A' schedule properties, now falsely saying that the plaintiff created the above said agreement. The plaintiff's son Kandasamy received Rs.20,000/- and endorsed on the back of the agreement on 17.09.1998. The plaintiff's father-in-law Kailasam and his elder brother Palanisamy signed as attestors of the agreement. (viii) No cause of action for the suit. There was no such trespass and no Panchayat was convened on 27.01.2005. 'A' schedule properties alone are undivided Hindu joint family properties as such the plaintiff ought to have filed the suit only in Namakkal. As such the suit is liable to be dismissed on the ground jurisdiction point of view. No cause of action for the suit. The defendants are paying kisths, house tax, electricity charges and other charges to the Government regularly in respect of 'A' and 'B' schedule properties. But the plaintiff with a view to come to his terms with the help of rowdy elements demolished the house of the defendants situated in 'A' schedule properties and the same was reported to Vennathur police station on 13.04.2002. Hence he prayed for the dismissal of the suit. 4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed six issues and considering the oral evidence of P.Ws.1 to 6 and D.Ws.1 to 4 and Exs.A1 to A28 and Exs.B1 to B27, dismissed the suit stating that the will is forged one. So the plaintiff is not entitled to the declaration of 'A' schedule properties and he is not https://hcservices.ecourts.gov.in/hcservices/ entitled to the partition of 'B' schedule properties. There is no cause of action for 'C' schedule properties and hence, dismissed the suit. Against which, the present appeal has been preferred by the appellant/plaintiff. 5.After hearing the arguments of the learned counsel for the appellant/plaintiff, the following points for determination are framed: 1.Whether the trial Court is correct in held that the will dated 19.01.1995 is forged one? 2.Whether the trial Court is correct in held that the appellant/plaintiff is failed to prove the oral partition in the year 1982? 3.Whether the trial Court is correct in held that 'B' schedule properties are separate properties of the respondents 1 and 2? 4.Whether the trial Court is correct in dismissing the suit in respect of 'C' schedule properties? 5.Whether the trial Court is correct in dismissing the suit in respect of 'A' schedule properties, even though the respondents/defendants admit that 'A' schedule properties are available for partition.? 6.Whether the trial Court is correct in dismissing the grant of partition in respect of 'A' and 'B' schedule properties? 7.To what relief, the appellant/plaintiff is entitled to? 6.Points No.1 and 2: (i)The admitted facts are as follows: 'A' schedule properties are belonging to Ramaiya Goundar, who is having two sons namely, Kandappa Goundar and Sengoda Goundar. Kandappa Goundar had two sons namely, Sengoda Goundar, the appellant/plaintiff and Arunachalam, the first respondent/first defendant. Arunachalam's wife is Sellammal, the second respondent/second defendant. (ii)The case of the appellant/plaintiff is that the suit properties were allotted to the share of Kandappa Goundar and he also purchased the properties under Ex.A6 and in the year 1982, the oral partition has been effected. In the said oral partition, 'A' schedule properties were allotted to the appellant/plaintiff and 'B' schedule properties were allotted to the first respondent/first defendant herein. (iii)He further submitted that as if Kandappa Goundar executed the will under Ex.A10 on 19.01.1995, he died on 01.02.1995. So as per the will, the appellant/plaintiff is the absolute owner of 'A' schedule properties. He further pleaded that he is in possession and enjoyment of the properties from the year 1982 onwards. So he prescribed the title by adverse possession. (iv) Per contra, in the written statement filed by the https://hcservices.ecourts.gov.in/hcservices/ defendants that 'A' schedule properties are ancestral properties and they are treated as joint family properties. There was no oral partition and the properties were never partitioned. Hence both the appellant/plaintiff and the first respondent/first defendant are equally entitled to their ½ share in 'A' schedule properties. (v) In respect of 'B' schedule properties, some properties are purchased in the name of the first respondent/first defendant and some of them are in the name of his wife, the second respondent/second defendant, purchased by his father-in-law. So 'B' schedule properties are separate properties, which are not treated as joint family properties. Hence he prayed for the dismissal of the suit in respect of 'B' schedule properties. (vi) The first respondent/first defendant has fairly conceded that 'C' schedule properties are separate properties of the appellant/plaintiff. So he never interfered with his possession. Hence there is no cause of action for filing the suit for injunction in respect of 'C' schedule properties and hence, he prayed for the dismissal of the suit in respect of 'C' schedule properties. (vii)The first respondent/first defendant has stated that 'A' schedule properties are joint family properties of himself and his brother, the appellant/plaintiff and they are entitled to equal share in 'A' schedule properties. The suit properties are situated within the jurisdiction of Namakkal Court. (viii)Considered the arguments of the learned counsel for the appellant/plaintiff. (ix)Now this Court has to decide whether 'A' schedule properties are allotted to the appellant/plaintiff in the oral partition and whether he has obtained the same by way of bequeathed under un- registered will dated 19.01.1995 under Ex.A10. Admittedly, the appellant/plaintiff pleaded only an oral partition in the year 1982. Till 2001, no mutation of revenue records in pursuance of oral partition. P.Ws.2,3 and 6 were examined to prove the oral partition. Considering their oral evidence, their oral evidence is not trustworthy. They never stated that they are personally aware of the oral partition. In such circumstances, the evidences of P.Ws.2,3 and 6 are not reliable. One more adding point is if really oral partition was effected in the year 1982, what prompt Kandappa Goundar to execute the will dated 19.01.1995. Even though the respondents/defendants were served, no one appeared on behalf of them. (x) But the learned counsel appearing for the appellant/plaintiff submitted that on 19.01.1995, his father has executed the will. While perusing Ex.A10-will, it is specifically mentioned that the properties were situated in Namakkal District. Admittedly, Namakkal District has been formed in the year 1998. That factum has been considered by the trial Court in para-6 of its judgment and came to the correct conclusion that the appellant/plaintiff has miserably failed to prove that the will as well as the oral partition alleged to be effected in the year 1982. (xi) One more adding point is on the basis of the will alone, the appellant/plaintiff has sought for a change in patta and he sent https://hcservices.ecourts.gov.in/hcservices/ an application for the same before the R.D.O. in Ex.A15 and R.D.O. and D.R.O. have been passed orders in Exs.A16, A17 and A18. The appellant/plaintiff has created a partition deed between himself and his son under Ex.A14. In that partition deed, the first respondent is not a party. So the trial Court has considered this aspect in proper perspective and came to the correct conclusion that Ex.A14-partition deed has been created only to prove as if there was an oral partition in the year 1982. In the partition deed, 'A' schedule properties were allotted to the appellant/plaintiff herein. In such circumstances, I am of the view that the trial Court has elaborately considered the same and came to the correct conclusion that the appellant/plaintiff has failed to prove that the will as well as oral partition. So I do not want to interfere with the findings of the trial Court. Points No.1 and 2 are answered accordingly. 7.Point No.3: In respect of 'B' schedule properties, the respondents/ defendants were marked the sale deeds in favour of the respondents/defendants under Exs.B22 and B23. While considering the evidence of P.W.1-appellant/plaintiff, he stated that 'B' schedule properties were in possession and enjoyment of the respondents/defendants. He has not aware of the extents of the properties. He gone to the extent of saying that he does not know who sold the properties and how much amount has been paid for the agreement. He further stated that he has not signed the agreement and does not know whether his father has put his signature in the document. He gone to the extent of saying that he does not know how many sale deeds the respondents/defendants executed in respect of 'B' schedule properties. The first and second respondents/defendants have also got electricity connection in their name. So considering the cross-examination of P.W.1 in page-3 of his deposition, it has clearly proved that the appellant/plaintiff has not aware of anything about 'B' schedule properties. So the trial Court came to the correct conclusion that the appellant/plaintiff herein has failed to prove 'B' schedule properties are joint family properties. Point No.3 is answered accordingly. 8.Point No.4: (i) The learned counsel appearing for the appellant/plaintiff submitted that he sought for an injunction in respect of 'C' schedule properties, even though the respondents/defendants herein have accepted and admitted the title of the 'C' schedule properties, which are belonging to the appellant/plaintiff. But the trial Court committed an error in dismissing the suit. (ii) Considering the above arguments, the respondents/defendants herein have not claimed any right over 'C' schedule properties. In their written statement, they have clearly mentioned that they have not shown any interest or claiming right over 'C' schedule properties. They have not interfered with the possession of the appellant/plaintiff in respect of 'C' schedule properties. They https://hcservices.ecourts.gov.in/hcservices/ further stated in their written statement is that there is no cause of action for filing the suit. Considering the written statement filed by the respondents/defendants, the title and possession of 'C' schedule properties are not disputed. So there is no cause of action for filing the suit. So the trial Court is correct in held that the appellant/plaintiff herein has not entitled injunction in respect of 'C' schedule properties. Point No.4 is answered accordingly. 9.Point No.5: (i) The learned counsel appearing for the appellant/plaintiff mainly focussing upon the partition of ½ share in 'A' schedule properties. To substantiate his argument, he culled out some portions of the defence raised by the respondents/defendants in their written statement and oral evidence of D.W.1. (ii) It is true, in the written statement as well as oral evidence of D.W.1-Arunachalam, the first respondent/first defendant herein, he candidly admits that 'A' schedule properties are joint family properties and they are available for partition. But those properties were situated in Namakkal District. But the suit was filed in Salem District. However, 'B' and 'C' schedule properties were situated in Salem and Namakkal Districts respectively. In such circumstances, while filing the suit, both Namakkal and Salem Courts are having territorial jurisdiction. Hence, I am of the view that the appellant/plaintiff is entitled to file the suit either before the Courts at Namakkal District or before the Courts at Salem District. Since the appellant/plaintiff filed the suit before Salem District, the suit in respect of 'A' , 'B' and 'C' schedule properties are dismissed. Even though 'A' schedule properties are situated at Namakkal District, the appellant/plaintiff is entitled to ½ share in the suit properties. Because the first respondent/first defendant himself admitted in the written statement that 'A' schedule properties are available for partition. (iii) To avoid multiplicity of future legal proceedings, I am of the view that instead of directing the appellant/plaintiff to file a separate suit before the Courts at Namakkal District, it is a fit and proper case to grant a preliminary decree of partition of ½ share in respect of 'A' schedule properties. Point No. 5 is answered accordingly. 10.Points No.6 and 7: In view of the answers given to points No.1 to 5, the decree and judgment passed by the trial Court in respect of 'B' and 'C' schedule properties are confirmed. It does not warranted any interference. But the appellant/plaintiff is entitled a preliminary decree of partition of ½ share in 'A' schedule properties and the respondents/defendants are entitled to the remaining ½ share in 'A' schedule properties. Points No.6 and 7 are answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 11.In fine, • The First Appeal is partly allowed. • Considering the relationship of both the parties, both the parties are directed to bear their costs throughout. • The decree and judgment passed by the trial Court are hereby modified as below: (a) The suit in respect of 'B' and 'C' schedule properties are dismissed. (b) The appellant/plaintiff is entitled to a preliminary decree of partition of ½ share in 'A' schedule properties. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kj To 1.The Additional District Court Fast Track Court No.II, Salem. 2.The Record Keeper V.R. Section, High Court, Madras. 1 cc To Mr.N.Srinivasan, Advocate, SR.8174 Judgment in Appeal Suit No.385 of 2008 PUR (CO) RH (22.2.11) https://hcservices.ecourts.gov.in/hcservices/