BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.06.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.879 of 1997 1.Sandanammal 2.P.V.Murugesan 3.P.V.Krishnamoorthy .. Appellants / D1 to D3 Vs. 1.P.V.Suiyarajam 2.Palaniammal .. Respondents / Plaintiff and D4 Prayer :- This appeal has been preferred under Section 96 of CPC agaisnt the judgment and decree dated 27.6.1997 in O.S.No.8 of 1993 on the file of the Subordinate Judge, Krishnagiri. For Appellants : Mr.V.Nicholas, Advocate For Respondents : Mr.M.A.Sadanand, Advocate (for R1) JUDGMENT This appeal has been preferred by D1 to D3 in O.S.No.8 of 1993 on the file of the Court of Subordinate Judge, Krishnagiri. The plaintiff has filed the suit for partition of his 1/5th share in the plaint schedule properties. 2.The averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows:- The plaintiff and D4 are the daughters of one P.M.Viswanatha Chettiar. D1 is the wife and D2 & D3 are the sons of said P.V.Viswanatha Chettiar, who died in or about the year 1989 intestate. The father of Viswanatha Chettiar was Andi Chetti alias Munisami Chettiar. There was a partition effected during the life time of said Viswanatha Chettiar between himself and D2 & D3 under a registered partition deed dated 7.7.1971. Viswanatha Chettiar was allotted specific items of properties described in 'A' schedule of the said partition deed dated 7.7.1971. D2 & D3 were also allotted specific items of properties under the said partition deed dated 7.7.1971 with a description as schedule 'B' & 'C' respectively in the said partition deed. After the said https://hcservices.ecourts.gov.in/hcservices/ partition, the sharers are enjoying the same without any hindrance from any quarters after obtaining separate patta for their respective shares. The properties of said Viswanatha Chettiar have devolved upon the plaintiff and Defendants on his death. After the death of the said Viswanatha Chettiar the plaintiff and the defendants have been in joint possession and enjoyment of the properties left by Viswanatha Chettiar and they have been sharing the expenses and income from the properties jointly. The suit properties being the separate properties of the said Viswanatha Chettiar, the plaintiff and defendants are each entitled to 1/5 share in the suit properties. After the death ceremonies of said Viswanatha Chettiar are over D1 to D3 have been promising to effect a division of the suit properties and deliver separate possession of the properties to the plaintiff of her 1/5 share. But D1 to D3 were postponing to effect division of the suit properties under some pretext or other. The plaintiff issued registered notice dated 2.11.1992 demanding D1 to D3 to effect division of the suit properties into five equal shares and to allot one such share to the plaintiff. D1 to D3 have received the notice but kept quite without sending any reply. Hence, the suit for partition and for mesne profits. 3.The defendants 1 to 3 have filed a joint written statement with the following contentions:- The suit is not maintainable. There was a partition effected between the plaintiff's father and D2 & D3 on 7.7.1971 and specific shares have been allotted through the said partition. But they would deny that after the death of Viswanatha Chettiar his share devolved upon the plaintiff and D1 to D4. According to defendants 1 to 3, Viswanatha Chettiar even during his life time paid a cash of Rs.1 lakh and 50 soverigns of gold ornaments to the plaintiff on the specific understanding that she will not claim any share in the share allotted to her father in the partition deed dated 7.7.1971. The plaintiff having received Rs.1 lakh in cash and 50 soverigns of gold jewels in lieu of her getting any share in the joint family property is not estopped from claiming any share in the suit properties. The plaintiff after receiving the above sum and jewels did not enjoy the suit properties in common along with the other defendants. The 4th defendant has also no right to claim any share in the suit properties. Only defendants 1 to 3 are entitled to 1/3 share each in the suit properties. It is false to state that D1 to D3 will be getting an annual income of more than Rs.1 lakh from the suit property. The annual income from the suit property including the shares allotted to defendants 2 and 3 will not be more than Rs.15,000/-. Hence, the plaintiff is not entitled to claim mesne profit. There is no cause of action. Hence, the suit is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 4.The 3rd defendant in his additional written statement would contend that the plaintiff having chosen to file the suit for partition has purposely omitted to include one of the family properties which is the house property situate in Pannandoor Village in Pochampalli Taluk and in the above tiled house after the demise of P.M.Viswanatha Chettiar who is the father of this defendant and the plaintiff, both the plaintiff and defendants are each entitled to an equal share even as per the admitted case of the plaintiff. The plaintiff with a view to make an unlawful gain taking advantage of the fact that she is in permissive possession and enjoyment of the above house property by leasing out it on rent has purposely omitted to include it and show it as one of the items in the suit filed by her which is liable for partition alongwith the other properties described in the plaint schedule. The plaintiff is also not entitled to partition in respect of items 1 to 5 in A schedule in Pochampalli village and item 1 in schedule II of Plaint 'A' schedule in Pulliampatti village and item 13 in schedule II of the plaint schedule in Bandarapalli village in Palacode Taluk as they have not fallen to the share of late P.V.Viswanatha Chettiar in the partition that took place between him and defendants 2 and 3 under the partition deed dated 7.7.1971. The suit is bad for non-joinder and non-inclusion of the House property mentioned above. The suit is bad for partial partition. Hence, the suit is liable to be dismissed. 5.The plaintiff in his reply statement would state that there is a house property belonging to the plaintiff's husband P.S.Sivam in Pannandur village and the same is being enjoyed by her husband Sivam by letting out to a tenant. The plaintiff's husband has also made lot of improvements in the said house spending about Rs.20,000/-. The said house was not allotted to the plaintiff's father Viswanatha Chettiar. So the suit is not bad for partial partition. The plaintiff and the defendants are not entitled to any share in the said house. The said house is absolute property of the plaintiff's husband P.S.Sivam. The plaintiff is not in permissive possession and enjoyment of the above said house property. Even patta for Item Nos.1 to 5 in 'A' schedule property and in item 1 of schedule II and item 13 of schedule III was in the name Viswanatha Chettiar in the partition, and he was in possession and enjoyment of those properties. 6.On the above pleadings the learned trial Judge has framed 6 issues and two additional issues for trial. The plaintiff has examined herself as P.W.1 and exhibited Ex.A.1 to Ex.A.3. The 3rd defendant was examined as D.W.1 and no document marked on the side of the defendants. After scanning the evidence both oral and documentary and after giving due consideration to the submissions made by the learned counsel on both sides, the learned Trial Judge has decreed the suit and passed a preliminary decree for partition https://hcservices.ecourts.gov.in/hcservices/ of plaintiff's 1/5 share in the plaint schedule properties and also granting other reliefs as prayed for. Aggrieved by the findings of the learned trial Judge D1 to D3 have preferred this appeal. 7.Following points arose for consideration in this appeal:- 1)Whether the plaintiff is entitled to 1/5th share in the property allotted to Viswanatha Chettiar under Schedule 'A' to Ex.A.2? 2)Whether the decree and judgment passed in O.S.No.8/93 on the file of the Subordinate Judge, Krishnagiri is liable to be dismissed for the reasons stated in the memorandum of appeal? 8.Point No.1:- The learned counsel for the appellant would state that in the suit for partition the plaintiff has not only scheduled the properties allotted to the share of Viswanatha Chettiar under Ex.A.2 to the plaint schedule but also included other properties to which she is not entitled to ask for partition. In Ex.A.2 Viswanatha Chettiar has been allotted the following survey number properties in Pulliampatti village: Item No.1 in schedule 'A' to Ex.A.2 is S.No.222/3 measuring 4 acres 50 cents, but that was not included in schedule 'A' to the plaint schedule. Item Nos. & S.Nos. in Ex.A.2 Relevant Item Nos. in Plaint schedule A(II) 2. S.No.219 3 to 5 stated as S.Nos.219/2A, 219/2B & 219/2C 3. S.No.220 6 shown as S.No.220/2 4. S.No.221/1 7 shown as S.No.221/1D 5. S.No.358 13 6. S.No.359/3 14 7. S.No.395/1 15 8. S.No.501 16 9. S.No.502/1 17 10. S.No.61 1 stated as S.No.61/3 11. S.No.280 10 stated as S.No.280/6B The other survey numbers in Pulliampatti Village have also been included in the plaint schedule A-II. The following Survey Numbers which are not included in Ex.A.2-partition deed and allotted to Viswanatha Chettiar, have been included in the plaint schedule A-II. 1.S.No.218/4 included as Item No.2 2.S.No.222/2m included as Item No.8 https://hcservices.ecourts.gov.in/hcservices/ 3.S.No.222/2m included as Item No.9 4.S.No.444/15 included as Item No.11 5.S.No.223/3 included as Item No.12 In Ex.A.2 Viswanatha Chettiar has been allotted the following Survey number property in Ponnandur Village:- Item Nos. & S.Nos. in Ex.A.2 Relevant Item Nos. in Plaint schedule A(II) 1. S.No.289 6 and 7 2. S.No.291 8 3. S.No.292 12 4. S.No.293 13 5. S.No.294 15 6.S.No.297 16 7. S.NO.305 17 8. S.No.307 18 9. S.No.301 19 10.S.No.146 20 11.S.No.143 9 Item No.1, 2,3,4,5,10,11,14 to Plaint Schedule A-I do not find a place in A schedule to Ex.A-2 that is the properties allotted to Viswanathan Chettiar. As far as Bandarapalli village is concerned Viswanatha Chettiar has been allotted the following survey number properties in Ex.A.2:- Item Nos. & S.Nos. in Ex.A.2 Relevant Item Nos. in Plaint schedule A(II) 1. S.No.58 1 to 4 2. S.No.48/02 18 3. S.No.57 19 4. S.No.49/2 20 But the plaintiff has included the following survey number properties in plaint schedule A-III, which do not find a place in the schedule 'A' to Ex.A.2, (allotted to Viswanatha Chettiar), they are:- 1.S.No.162/2B included as Item No.5 2.S.No.163/2 included as Item No.6 3. S.No.164/B included as Item No.7 4. S.No.165/1 included as Item No.8 https://hcservices.ecourts.gov.in/hcservices/ 5. S.No.165/2 included as Item No.9 6. S.No.318/1 included as Item No.10 7. S.No.319 included as Item No.11 8. S.No.324/5 included as Item No.12 9.S.NO.357/6 included as Item No.13 10.S.No.373/1 included as Item No.14 11.S.No.377/5 included as Item No.15 12.S.No.508 included as Item No.16 13. S.No.509 included as Item No.17 So, the plaintiff is not entitled to a preliminary decree for partition of 1/5 share in the above said survey number properties scheduled to the plaint since those properties are not included in schedule 'A' to Ex.A.2, allotted to Viswanatha Chettiar, the father of the plaintiff. Schedule 'B' to the plaint is a house in S.No.222/2, which has been allotted to Viswanatha Chettiar under schedule 'A' to Ex.A.2. Even though the appellant would contend that at the time of marriage of the plaintiff a sum of Rs.1 lakh and 50 soverigns of gold jewels were given to the plaintiff in lieu of her due share in the joint family properties, the plaintiff is not entitled to a shre in the properties allotted to the father Viswanatha Chettiar under Ex.A.2 – partition deed. But absolutely there is no material on record to show that even during the life time of Viswanatha Chettiar the plaintiff was paid Rs.1 lakhs and 50 soverigns of god jewels in lieu of her share in the joint family properties. Under such circumstance, the findings of the learned trial judge in Issue No.4 as to the effect that the plaintiff is entitled to 1/5th share in the share allotted to her father Viswanatha Chettiar under Ex.A.2-partition deed cannot be interfered with. Hence, I hold on Point No.1 that the plaintiff is entitled to her 1/5th share in the properties allotted under schedule 'A' to Ex.A.2 to her father Viswanatha Chettiar alone and not in respect of other properties mentioned above in this Judgement. 9.Point No.2:- In fine, the appeal is partly allowed and the judgment in O.S.No.8 of 1993 on the file of the Subordinate Judge, Krishnagiri is modified as to the effect that the plaintiff is entitled to a preliminary decree for a partition of 1/5 share in respect of the properties allotted to her father Viswanatha Chettiar under schedule 'A' to Ex.A.2 alone and the suit is dismissed in respect of other properties scheduled to the plaint. The mode of partition is relegated to the final decree proceedings only in respect of 1/5 share of the plaintiff in schedule 'A' properties to Ex.A.2 alone. The learned counsel for the appellant would contend that another property viz., a tiled house in Pannathur village belongs to Viswanatha Chettiar is also to be partitioned. This point was raised by the learned counsel for the appellant on the ground of admission made by the plaintiff in the https://hcservices.ecourts.gov.in/hcservices/ cross-examination. It is left open to the plaintiff to take appropriate steps to include the said property also. At this juncture the learned counsel for the responent would contend that the said house was gifted to the plaintiff at the time of her marriage in the year 1967 and she is residing there and there cannot be a partition of that house. No costs. Sd/- Deputy. Registrar. /true copy/ Sub Asst. Registrar. ssv To, The Subordinate Judge, Krishnagiri. Copy to The Section Officer VR Section, High Court, Madras. 1 cc to Mr.N.A.Ravindran, Advocate, SR. 30077 1 cc to Mr.V. Nicholas, Advocate, SR. 30042 A.S.No.879 of 1997 SSV (CO) kk 4/8 https://hcservices.ecourts.gov.in/hcservices/