IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 14.06.2010 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.Nos.676 and 857 of 2002 A.S.No.676 of 2002 Mrs.Parameswari @ Gnanasakthi ..Appellant/Plaintiff Vs. 1.Raja Ratinam 2.Bala Ganesan 3.Mrs.Santhi w/o.Mr.Ganesan ..Respondents/Defendants Appeal filed under section 96 of the Civil Procedure Code against the Judgment and Decree of the Additional District Judge, Chidambaram dated 16.04.2002 made in O.S.No.9/2002. For Appellant : Mr.Gopinath for Mr.C.Chandrabose For Respondents : Mr.A.P.Surya Prakash (for R1) Mr.Srinath Sridevan (for R3) A.S.No.857 of 2002 Raja Ratinam ..Appellant/1st Defendant Vs. 1.Mrs.Parameswari @ Gnana Sakthi 2.Bala Ganesan 3.Mrs.Santhi w/o.Mr.Ganesan ..Respondents/Plaintiff & Defendants Appeal filed under section 96 of the Civil Procedure Code against the Judgment and Decree of the Additional District Judge, Chidambaram dated 16.04.2002 made in O.S.No.9/2002. For Appellant : Mr.A.P.Suryaprakash https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr. Gopinath for R1 Mr. Srinath Sridevan for R3 J U D G M E N T The plaintiff in O.S.No.9/1992 on the file of the Additional District Judge (FTC) Chidambaram has come forward with A.S.No.676/2002 as against the disallowed portion of her claim made in the plaint. The first defendant therein has filed A.S.No.857/2002 against the preliminary decree for partition passed by the trial court in the above said suit. Therefore, for the sake of convenience, the parties are referred to in accordance with their rankings in the suit. 2. Parameswari @ Gnanasakthi, the plaintiff filed the original suit raising the following contentions:- Suit 'A' schedule property originally belonged to Kalyanasabesa Deekshidhar. As he died on 20.10.1995 without leaving any Will, his daughter, namely the plaintiff and his son, namely the second defendant (Bala Ganesan) became entitled to the suit 'A' schedule property as the legal heirs of Kalyanasabesa Deekshidhar, each one being entitled to 1/2 share. The first defendant Raja Rathinam is the brother of Kalyanasabesa Deekshidhar. One Sivakami is a tenant in respect of suit 'A' schedule property and hence no relief is sought against her. There was no cordial relationship between Kalyanasabesa Deekshidhar and his son Bala Ganesan. Therefore, Kalayanasabesa Deekshidhar was looked after by his brother, namely the first defendant Raja Rathinam. As Kalayanasabesa Deekshidar was the hereditary trustee of Sri Sabanayagar temple, Chidambaram, he was having kattalaidhars during his life time. As the trustee of the Sri Sabanayagar temple he earned the movables like jewels, silver vessels which are described as suit 'B' schedule properties. After the death of Kalayanasabesa Deekshidhar, taking advantage of the fact that the plaintiff was residing elsewhere, the second defendant secreted all the movables of his father Kalayanasabesa Deekshidhar and the properties described in plaint 'B' schedule are in his custody. The right Kalayanasabesa Deekshidhar to perform kattalais and receive of remuneration for the same from the kattalaidhars is a heritable right. The plaintiff and the second defendant are having equal shares in the right to perform kattalais. Such a right of the plaintiff has been declared in O.S.No.280/1994 on the file of District Munsif, Chidambaram. The said kattalai is described as plaint 'C' schedule property. Thus the plaintiff is entitled to a common 1/2 share in all the suit properties described in A, B and C schedule to the plaint. The demand made for partition and separate possession of the plaintiff's share in the suit properties by issuing a notice dated 26.05.1997 evoked a reply notice https://hcservices.ecourts.gov.in/hcservices/ containing false allegations. Therefore, the plaintiff has to approach the court for the relief of partition of her half share in the properties described as A, B and C schedule in the plaint:- 3. Raja Rathinam, the first defendant contested the suit by filing a written statement containing the following allegations. The plaintiff's suit is liable to be dismissed, as not maintainable. It is true that the first defendant is the brother of Late Kalyanasabesa Deekshidhar. But, it is not correct to state that the suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar, which devolved upon the plaintiff and the 2nd defendant as his legal heirs on the death of Kalyanasabesa Deekshidhar. On the other hand, suit 'A' schedule property was the joint family property of Kalyanasabesa Deekshidar and his brothers Thiyagaraja Deekshidhar and Rajarathina Deekshithar(D1). As there arose a dispute between the brothers, a suit was filed on the file of District Munsif Court as O.S.No.332/1957 by Kalayanasabesa Deekshidhar for partition claiming 1/3 share in the suit 'A' schedule property. A preliminary decree was passed and when the matter was pending for passing final decree in I.A.No.211/1960, a settlement was arrived at before the panchayatdars, pursuant to which it was agreed that Thiyagaraja Deekshidhar, the other brother of Kalyanasabesa Deekshidhar should be paid the value of his share. Kalyanasabesa Deekshidhar wanted the first defendant also to consent for receiving the value of his share as one of the terms of the compromise. However, it was promised by Kalyanasabesa Deekshidar that after the value of the share of Thiyagaraja Deekshidhar would be paid, Kalyanasabesa Deekshidar and the first defendant would continue to enjoy the property jointly as before. Furthermore, though Thiyagaraja Deekshidhar was paid for his 1/3 share, the first defendant was not paid any amount for his share and thus he continued to be the owner of his 1/3 share of suit 'A' schedule property. The first defendant continued to be in joint possession of the suit property even after a compromise was worked out in O.S.No.332/1957 and still the first defendant is residing in the suit 'A' schedule property with his family. Thus, Kalyanasabesa Deekshidhar was entitled to 2/3 share alone (his share 1/3 and the share of Thiyagaraja Deekshidhar 1/3) and the share of the first defendant was kept in tact. The first defendant claims no interest in the properties described as 'B' and 'C' schedule properties. The first defendant being a co-owner entitled to 1/3 share in the suit 'A' schedule property is also entitled to the right of pre-empting. He has decided to purchase the shares of other share, if they choose to sell. As the second defendant has executed a sale deed in favour of the third defendant, the first defendant is entitled to purchase the same in exercise of his right of pre-emption. He is prepared to pay the value of the share of the second defendant as recited in the sale deed executed by him in favour of the third defendant. In any event, the first defendant is entitled to claim his 1/3 share to be https://hcservices.ecourts.gov.in/hcservices/ allotted separately to him in the event of relief of partition being granted. 4. The second defendant filed a written statement containing allegations, the summary of which is given as under:- It is incorrect to state that the plaintiff and the second defendant are entitled to equal moieties in suit 'A' schedule property. As per the final decree dated 14.04.1960 passed in O.S.No.332/1957 on the file of the District Munsif, Chidambaram, the suit 'A' schedule property became the property of Kalyanasabesa Deekshidhar to the exclusion of his brother. As such, the suit 'A' schedule property was a property belonging to the joint family consisting of Kalyanasabesa Deekshidhar and his son/second defendant, each one entitled to 1/2 share as coparceners. On the death of Kalyanasabesa Deekshidhar intestate, his 1/2 share equally devolved upon the plaintiff and the second defendant. Thus the plaintiff is entitled to 1/4 share alone in suit 'A' schedule property. There is no property as described in plaint 'B' schedule. The kattalais described in 'C' schedule are not available for partition. In addition to that, the plaintiff being a woman, cannot perform the kattalais. As there was no cordial relationship between the second defendant and his father Kalyanasabesa Deekshidhar, the plaintiff took away the golden articles and silver vessels worth Rs.2,00,000/- from her father. In order to blackmail the second defendant and to pre-empt him from taking steps to claim his share in the golden articles and silver vessels of Kalyanasabesa Deekshidhar, which the plaintiff had taken, she has chosen to file the vexatious suit. A portion of the suit 'A' schedule property has been leased out by the second defendant to a tenant, by name Chandrasekaran. Further, on 06.09.1999, the second defendant has sold suit 'A' schedule property to the third defendant. 5. The third defendant has filed a written statement containing allegations similar to those that are found in the written statement of the second defendant. The third defendant has also claimed that she purchased 3/4 share of the second defendant in suit 'A' schedule property and has prayed for a decree for partition and separate possession of her 3/4 share in the suit 'A' schedule property. 6. The following were the issues framed by the trial court based on the above said pleadings:- i)Whether the first defendant is entitled to 1/3 share in 'A' schedule properties as per O.S.No.332/1957? ii)Whether the 'B' and 'C' schedule properties are presently available for partition? https://hcservices.ecourts.gov.in/hcservices/ iii)Whether the plaintiff is entitled to half share in 'A' schedule property? iv)Whether the plaintiff is entitled to the relief sought for by him? v)To what other relief the plaintiff is entitled? 7. Two witnesses were examined as P.W.1 and P.W.2 and seven documents were marked as Exs.A1 to A7 on the side of the plaintiff. Three witnesses were examined as D.Ws.1 to 3 and thirty one documents were marked as Exs.B1 to B31 on the side of the defendants. The report of the Advocate-Commissioner appointed by the trial court has been marked as Ex.C1. The trial court considered the pleadings and evidence in the light of the arguments advanced on either side and upon such a consideration, decreed the suit in part passed a preliminary decree for partition in respect of suit 'A' schedule property holding that the plaintiff is entitled to 1/4 share alone in it and dismissed the suit regarding the other properties described in plaint schedule 'B' and 'C'. 8. Aggrieved by the same, the plaintiff has come forward with A.S.No.676/2002 against the disallowed portion of her claim on various grounds set out in the memorandum of grounds of appeal. Similarly, the first defendant has come forward with A.S.No.857/2002 challenging the preliminary decree for partition passed in respect of suit 'A' schedule property holding him not entitled to any share in it. 9. The points that have arisen for consideration in these appeals are as follows:- 1.Whether the suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar, as claimed by the plaintiff or the joint family property of Kalyanasabesa Deekshidhar and the second respondent/second defendant as claimed by the defendants 2 and 3? 2.Whether the first defendant is having any share in the suit 'A' schedule property? 3.Whether the plaintiff's share in suit 'A' schedule property is half as claimed by the plaintiff and not 1/4 as contended by the defendants 2 and 3? 4.Whether the plaintiff is entitled to the relief of partition in respect of suit 'A' schedule property? https://hcservices.ecourts.gov.in/hcservices/ 5.Whether the plaintiff is entitled to a decree for partition in respect of the articles described in plaint 'B' schedule? 6.Whether the plaintiff is entitled to a decree for partition in respect of the kattalais described in plaint 'C' schedule? 10. The arguments advanced by Mr.Gopinath, learned counsel representing Mr.C.Chandrabose, learned counsel for the appellant in A.S.No.676/2002, by Mr.A.P.Suryaprakasam, learned counsel for the first respondent and by Mr.Srinath Sridevan, learned counsel representing the third respondent were heard. The entire materials available on record including the judgment and decree of the trial court were perused. 11. The plaintiff has claimed partition of properties described in three schedules annexed to the plaint. 'A' schedule is shown to be an immovable property, the existence of which is not in dispute. 20 sovereigns of gold jewels, 8 kilos of silver articles, Rs.50,000/- cash deposits in bank, Rs.2,00,000/- in cash and brass and ever-silver vessels worth Rs.26,000/- have been shown to be the 'B' schedule property. Kattalais in Sri Sabanayagar temple, Chidambaram valued at Rs.30,000/- is described to be plaint 'C' schedule property. The trial court has granted a preliminary decree for partition of the plaint 'A' schedule property alone and dismissed the suit in respect of plaint 'B' schedule and 'C' schedule properties. Even in respect of plaint 'A' schedule property, the plaintiff's claim that she is entitled to 1/2 share has been negatived by the trial court and she has been held to be entitled to 1/4 share alone. As against the reduction of the share in respect of suit 'A' schedule property and as against the dismissal of the suit in respect of suit 'B' and 'C' schedule properties, the plaintiff has filed A.S.No.676/2002. The second defendant claims that he is entitled to 1/3 share in the suit 'A' schedule property. The said claim has been rejected by the trial court. Therefore, the first defendant has come forward with A.S.No.857/2002. 12. Let us, at the first instance, consider the claims of the plaintiff, first defendant and the second defendant in respect of the suit 'A' schedule property before ever going to the question of the claims of the plaintiff and the second defendant in respect of the properties described in other two schedules. Points 1 to 4:- 13. A tiled house with brick walls bearing door No.70, East Car street in Ward No.5, Block No.2, Chidambaram Town, comprised in T.S.No.120 having a total area of 3668 sq.ft. land is the suit 'A' schedule property. Claiming that the suit property was the absolute https://hcservices.ecourts.gov.in/hcservices/ property of her father Kalyanasabesa Deekshidhar, the plaintiff has claimed 1/2 share in it, as the plaintiff and the second defendant had become legal heirs of Kalyanasabesa Deekshidhar. The above said contention of the plaintiff has been refuted not only by the second defendant but also by the first defendant, who is none other than the brother of late Kalyanasabesa Deekshidhar. Admittedly, suit 'A' schedule property was not the property purchased by Kalyanasabesa Deekshidhar. On the other hand, the plaintiff's husband who was examined as P.W.1, has admitted that the suit 'A' schedule property originally belonged to three brothers Thyagaraja Deekshidhar, Kalyanasabesa Deekshidhar and Raja Rathinam Deekshidhar (first defendant), all sons of Chakravarthy Deekshidhar, as their ancestral property. Before 1957, Chakravarthi Deekshidhar died leaving his three sons. In 1957, Kalyanasabesa Deekshidhar filed a suit on the file of the District Munsif Court, Chidambaram as O.S.No.332/1957 against his two brothers, namely Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar for partition of his 1/3 share in the suit 'A' schedule property. In the said suit, Thyagaraja Deekshidhar alone entered appearance and a preliminary decree was passed directing division of the property into three equal shares and allotment of one such share to Kalyanasabesa Deekshidhar. The said preliminary decree was passed on 13.03.1958. Ex.B7 is the certified copy of the said preliminary decree. Subsequently, Kalyanasabesa Deekshidhar filed final decree application in I.A.No.29/1960 in O.S.No.332/1957 on the file of District Munsif Court, Chidambaram for getting a final decree. In the said final decree application, both Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar entered appearance in person and filed a joint memo along with Kalyanasabesa Deekshidhar agreeing for getting a sum of Rs.4008.33P each in lieu of their shares in suit 'A' schedule property. Based on the said compromise memo a final decree was passed on 14.04.1960 allotting the entire 'A' schedule property to Kalyanasabesa Deekshidhar and directing payment of ovalty at a sum of Rs.4008.33P each to Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar. The plaintiff has admitted that the property came to her father in the partition suit filed by him, namely O.S.No.332/1957 on the file of the District Munsif Court, Chidambaram. However, she would claim that in view of the division effected between Kalyanasabesa Deekshidhar and his brothers, the suit 'A' schedule property allotted to Kalyanasabesa Deekshidhar became his absolute property and hence the plaintiff, on the death of Kalyanasabesa Deekshidhar, became entitled to 1/2 share in it. 14. On the other hand, the first defendant has contended that though he also agreed for receiving a sum of Rs.4008.33P in lieu of his share in suit 'A' schedule property, it was promised by Kalayanasabesa Deekshidhar that, after getting rid of Thyagaraja Deekshidhar by making payment of the value of his share, both of them would continue to jointly hold the property; that pursuant to such promise only the amount stipulated in the compromise as payable to the first defendant was not paid to him and that Kalyanasabesa https://hcservices.ecourts.gov.in/hcservices/ Deekshidhar and the first defendant continued to jointly enjoy the suit 'A' schedule property. At the same time, he does not claim that the share of Thyagaraja Deekshidhar for which the value was paid under the final decree passed in O.S.No.332/1957 also became a common property of himself and his other brother Kalyanasabesa Deekshidhar and thus each one of them had become entitled to half share. On the other hand, it is his contention that his 1/3 share did not get enlarged and Kalyanasabesa Deekshidhar became entitled to 2/3 share (1/3 as coparcener and the other 1/3 having been obtained from Thyagaraja Deekshidhar). The first defendant claims absence of disruption of joint family between himself and his brother Kalyanasabesa Deekshidhar. Then it is surprising that the first defendant has conceded that Kalyanasabesa Deekshidhar had become entitled to the 1/3 share of Thyagaraja Deekshidhar to the exclusion of the first defendant, simply because he had paid the value of the share of Thyagaraja Deekshidhar. Moreover, it is the contention of the first defendant as D.W.1 that the amount that was paid to Thyagaraja Deekshidhar was raised by joint borrowing made by the first defendant and Kalyanasabesa Deekshidhar under a promissory note and the said loan was subsequently discharged by them jointly. If such a contention of the first defendant is true, he would have naturally made a claim that he and his brother Kalyanasabesa Deekshidhar became entitled to equal moieties in suit 'A' schedule property and would not have chosen to be content with claiming 1/3 share alone. 15. Furthermore, Ex.B28-final decree makes it clear that the entire plaint 'A' schedule property was allotted to the share of Kalyanasabesa Deekshidhar and that Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar (first defendant) would get a sum of Rs.4008.33P each from Kalyanasabesa Deekshidhar, which amount was to be paid within three months from the date of final decree and in case of default, the amount was to be paid along with an additional sum of Rs.100/- and that Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar could recover the said sum from Kalyanasabesa Deekshidhar for which they would have a charge over the said property. It has also been stated in the final decree that within one month from the date of payment of the said amount, Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar should vacate the entire house and deliver it to Kalyanasabesa Deekshidhar and in default of delivery of possession, Kalyanasabesa Deekshidhar could take possession through court with cost. A reading of the said final decree will show that no power was given either to Thyagaraja Deekshidhar or Raja Rathinam Deekshidhar (first defendant) to revoke the settlement incorporated in the final decree on the ground of non-payment of the amount directed to be paid as ovalty and that they had been given only a right to have a charge over the property for the recovery of the amount. As against the said clear and unambiguous terms, the first defendant seems to have taken a novel stand that they wanted to get rid of Thyagaraja Deekshidhar by paying the value of his share and thereafter to keep https://hcservices.ecourts.gov.in/hcservices/ the property as joint property of Kalyanasabesa Deekshidhar and Raja Rathinam Deekshidhar (first defendant). 16. Per contra, it is the case of the plaintiff that the terms of the final decree was fully complied with and the first defendant was paid the entire amount directed to be paid to him under Ex.B28-final decree and that he had issued a receipt acknowledging the payment of the said amount to him. It is the further case of the plaintiff that subsequently, Raja Rathinam Deekshidhar (first defendant) being the brother of Kalyanasabesa Deekshidhar and a person helping Kalyanasabesa Deekshidhar, who had lost his wife, was allowed to reside in the suit 'A' schedule property along with Kalyanasabesa Deekshidhar and that hence, he was residing in the said house by virtue of such permission granted and not by virtue of any right of his own. In this regard, P.W.1, husband of the plaintiff, has given clear evidence to the effect that the first defendant was permitted by Kalyanasabesa Deekshidhar to reside with him in the suit 'A' schedule property, as he was helping Kalyanasabesa Deekshidhar and that he resided there by virtue of such permission alone. 17. The second defendant, being the son of Kalyanasabesa Deekshidhar has supported the case of the plaintiff in this regard and contended that the first defendant did not have any right in the suit 'A' schedule property after the passing of the final decree under Ex.B28. Except the interested testimony of the first defendant, who deposed as D.W.1, there is no other document to show that he remained a co-owner along with Kalyanasabesa Deekshidhar even after the division made under Ex.B28-final decree or that the amount directed to be paid to him in the said final decree was not paid. On the other hand, there is the clear testimony of the second defendant, who deposed as D.W.2, to the effect that the amount directed to be paid to the first defendant under Ex.B28 was paid and the same was acknowledged by the first defendant by issuing a receipt for the same. The said testimony of D.W.2 has been corroborated by D.W.3, the husband of the third defendant. 18. Admittedly, the amount payable under Ex.B28-final decree to Thyagaraja Deekshidhar was borrowed from one Nataraja Deekshidhar. It is the contention of the first defendant that the said amount was borrowed by himself and Kalyanasabesa Deekshidhar jointly by executing a promissory note in favour of the creditor and the said amount borrowed was subsequently repaid and the debt was discharged jointly by himself and Kalyanasabesa Deekshidhar. The said contention of the first defendant is falsified not only by the clear and cogent testimonies of D.Ws.2 and 3, but also by the contents of Ex.B7. Admittedly, Ex.B7 is the promissory note under which a sum of Rs.4,000/- was borrowed for making payment to Thyagaraja Deekshidhar as per the terms of Ex.B28-final decree. It is quite obvious from Ex.B7 that the amount was borrowed and the https://hcservices.ecourts.gov.in/hcservices/ promissory note was executed by Kalyanasabesa Deekshidhar alone and not jointly by the first defendant and Kalyanasabesa Deekshidhar. It should also been noticed that in all the first four endorsements made on the promissory note are for the purpose of limitation and for evidencing part payments, were made by Kalyanasabesa Deekshidhar alone. The fifth endorsement evidencing discharge of entire promissory note debt, was made by Nataraja Deekshidhar. It is noticed from Ex.B7-promissory note that though the first defendant has also signed the promissory note, his signature is appended by an explanatory note by himself as a witness "rhl;rp". It is quite obvious from the contents of Ex.B7 and the endorsements contained therein that the amount needed for making payment to Thyagaraja Deekshidhar was borrowed by Kalyanasabesa Deekshidhar alone and Kalyanasabesa Deekshidhar alone repaid it to the creditor Nataraja Deekshidhar. 19. Ex.B6 is the receipt issued by the first defendant acknowledging the receipt of a sum of Rs.4008.33P in accordance with the final decree dated 14.04.1960 made in I.A.No.211/60 in O.S.No.332/1957 on the file of the District Munsif, Chidambaram. The first defendant, while deposing as D.W.1 has candidly admitted that a compromise final decree was passed in the previous suit filed by Kalyanasabesa Deekshidhar for partition, in which the value of the share of each one of the three brothers was fixed at Rs.4008.33P; that it was also agreed that a sum of Rs.4008.33P should be paid to him as the value of his share and that in terms of the compromise, the final decree was passed.