IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 -10-2008 CORAM: THE HON'BLE MR.JUSTICE K.KANNAN A.S.NO.110 OF 1990 1.Chinnian(died) 2.Samiammal 3.Venkatesan 4.Ramamoorthy 5.Poosamani ...Appellants/Defendants 1 & 2 Appellants 3 to 5 brought on record as LRs. of the deceased first appellant vide order of Court dated 25.6.2008 made in CMP.No.3526 of 2007 Vs. 1.Muthayyan @ Muniyandi (died) 2.Ramaraj 3.Devaraj 4.Gopal 5.Sridharan 6.Annaman 7.Siva .....Respondents/Plaintiff RR2 to 7 brought on record of LRs. of dead 1st respondent as per order of Court in CMP.4103 of 1997 dated 12.6.1997 The first appeal filed against the Judgment and decree dated 7.12.1989 made in O.S.No.111 of 1985 on the file of the Court of the Subordinate Judge, Vridhachalam. For Appellants : Mr.A.G.Rajan Respondents 1 and 2 died For respondents : 3 to 6: Mr.R.Aravind https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T I. Facts in brief The defendants who have suffered a decree for partition and separate possession in the suit properties are the appellants herein. 2. The suit had been laid by the respondent for partition on the ground that the suit properties had been purchased in the name of his father Muthan @ Perumal and after his father, the plaintiff and the first defendant who are brothers are each entitled to half share. The second defendant who is the wife of the first defendant claimed title to some of the items by virtue of the settlement from the first defendant and therefore she had also been made as a party. 3. The suit was contested by the defendants on the ground that Muthan did not have an alias by name Perumal, but Muthan and Perumal are two different persons who are brothers. The defendants contended that Muthan had married one Nallammal, through whom two children were born viz., The plaintiff and a daughter named Paanchayee. Muthan died about 45 years back, and Nallammal married her husband's own brother Perumal. According to the defendants, Nallammal, had two children through Perumal, one was the first defendant and another daughter was born by name Mariammal. II Mode of disposition by Trial Court 4. The parties went to trial to establish whether Muthan and Perumal were the same persons or were brothers and also the fact whether the plaintiff had the alias by name Muthayyan. The trial Court relied on an entry in the patta made on 13.3.1985 referring to the plaintiff as the son of Perumal and the petition alleged to have been given by the 1st defendant on 10.6.1964 referring to Ex.A9 to the effect that his brother viz., the plaintiff had been living away at Ceylon (Srilanka) and that Visa could be caused to be given to his brother. The Court also relied on certain telegraphic messages received at Ceylon referring his name as Muthayyan and referring to the fact of death of Perumal. The Court found that Muthayyan and Muniandi referred to the same person and the former name was the plaintiff at Srilanka and latter was the name by which he was called in India. The Court found references in the patta and the application given to the Tahsildar referring to plaintiff as the brother of the defendant as constituting conclusive proof that they were born to the same father Perumal. The contention regarding the non- impleadment of the sisters as parties to the suit was rejected by the trial Court on the ground that according to the plaintiff, the sisters did not stake any claim to the properties and therefore they were not required to be made as parties. https://hcservices.ecourts.gov.in/hcservices/ III Contentions in Appeal 5. It is vehemently argued by the appellants that the Court below had not properly considered the fact that Muthan and Perumal were two different persons and the Court's reliance in the patta referring the plaintiff as the son of Perumal was clearly a mistake and that it was a recent entry before the institution of suit. The appellant also contended that admittedly the plaintiff was living away in foreign country in Srilanka . The father's name of the plaintiff would have been definitely referred to in his passport and it was deliberately not filed and hence adverse inference had to be drawn. It was the further contention of the appellant that even the witness PW2 did not specifically deny the suggestion that Perumal and Muthan were two different persons and no positive evidence had been given that the plaintiff was the son of Perumal and not of Muthan and that they were not two different persons. IV. Consideration of the issue of paternity 6. The properties admittedly stand in the name of Perumal and the plaintiff would be entitled to a share only if he establishes that he was the son of Perumal or Muthan and Perumal refer to the same person. The two documents which were relied on by the trial Court are of considerable significance viz the money order receipt marked as Ex.A.7 and acknowledgment for the money order marked as Ex.A8. Alongside the thumb impression found in EX.A8 is written thus : "left hand thumb impression of Perumal of Peruvangur". The document was produced by the plaintiff . There would have been no occasion for the plaintiff to send money to Perumal, if he was not his father. This might not perhaps conclusively establish the issue. If the defendants contentions were true, Perumal would be the step-father and the money could have been sent to such step-father. What perhaps concludes so decisively is the reference in Ex.A5 about the plaintiff's name as Muthian S/o Perumal. Again in Ex.A9, the petition was presented to the Taluk Office in the name of the defendant Chinnayan on 10.6.1964, he refers himself as the son of Muthan and makes a further reference to the plaintiff as his elder brother Muniandi, S/o Muthan. The document could not have been merely fabricated by the plaintiff for the case because, it contains endorsement of the Tahsildar of the year 1964. The file also makes reference to the certificate of Village Munsif referring the plaintiff as the son of Muthan and in the same exhibit, a statement has been recorded by Karnam referring to Chinnayan (defendant) as the son of Muthan and further making reference to the plaintiff as the elder brother and also son of Muthan. The defendant himself signs the documents as Mu.Chinnayan and the statement recorded by the Tahsildar further refers to the fact that the plaintiff is his brother, also son of Muthan. The file concludes with an endorsement from Tahsildar that the enquiry for issue of passport revealed that the plaintiff and the defendant are the sons of Muthan. https://hcservices.ecourts.gov.in/hcservices/ 7. The appellants brings my specific attention to certain answers elicited in the cross-examination of the plaintiff that he had a sister by name Paanchayee and the defendant had a sister by name Mariammal and such an admission amounted to endorsing the defence case. I fail to see how it could make such reference for, the answer has been brought out in the manner that the questions would have been put to him. It is not be denied that Paanchayee was sister of plaintiff nor that Mariammal was the sister of the defendant. There is no specific suggestion or question that Mariammal was not the plaintiff's sister also, nor was a question that Paanchayee was not the sister of the defendant. The non-filing of passport is of no relevance because, the plaintiff's specific contention is that he had been referred to only as son of Muthan and that Muthan was called as Perumal in India and Muthan in Srilanka. The trial court has relied on a money order acknowledgment, the entries in passport verification by Tahsildar and other revenue officials as well as the patta, as concluding the issue relating to the plaintiff as the elder brother of the first defendant and that they were the sons of the same father Muthan @ Perumal. I am not persuaded to take a finding contrary to the finding rendered by the trial court. V. What is the entitlement of plaintiff's share? 8. The only remaining issue seems to be therefore to see if the plaintiff could claim 1/2 share, although they were also sisters in the family being the daughters of Muthan @ Perumal. The mode of dealing with the issue that the sisters had not staked their claim and therefore there were not necessary parties, does not appear to be sound. The Court could not have decided about a particular sharer without arraigning all the heirs as parties to the suit. The suit properties are immovable properties of agricultural lands. There could not have been an oral release of the rights in immovable properties. If the plaintiff's sisters had been added as parties to the suit and if the finding had been entered that the sisters had been ousted from their claim to any share, it might have been possible to hold the claim for only 1/2 share. But, in their absence, it is not possible to predicate a 1/2 share in the property for the plaintiff. VI Conclusion 9. The suit has been filed in the year 1985 and it would seem harsh to the parties to consign them to an independent action for working out their rights afresh or remit the matter to the lower court by directing the impleadment of the sisters. The plaintiff's entitlement to a 1/4th share itself cannot be denied on the basis of discussion made above. The plaintiff will be entitled only to a 1/4 share and the decree for 1/2 share granted by the trial court is set aside. The defendant shall hold his 1/4th share and the half share of his sisters as a trustee of his sisters Paanchayee and Mariammal. The decree of the trial https://hcservices.ecourts.gov.in/hcservices/ Court is accordingly modified and the appeal is allowed in part. Having regard to the fact that success is split between the parties, they shall bear their respective costs in appeal. But, in the circumstances, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1. The Subordinate Judge, Vridhachalam. 2. The Section Officer, V.R.Section, High Court, Madras 1 cc To Mr.A.G.Rajan, Advocate, SR.58050. A.S.NO.110 of 1990 JSV(CO) RVL 04.11.2008 https://hcservices.ecourts.gov.in/hcservices/