Vathsalsamanickavasagam & Ors vs N. Ganesan & Anr

2. Originally the suit for partition was filed by one late Mrs.Nagarathnam, along with her two sons late Manickavasagam and Saravanamurthi as well as her daughter Sethulakshmi as plaintiffs 3, 2 and 4. The present first appellant is the wife of the late Manickavasagam, the third plaintiff, along with her sons, the second appellant and the third appellant. The fourth appellant is the second plaintiff and the fifth appellant is the fourth plaintiff. The first defendant who is the first respondent herein is also the son of the first plaintiff. The second respondent was the second defendant in the suit, who purchased the property from one Barnabass Nadar, to whom the first defendant earlier sold the suit property on 11.11.1978.

5. So far as the first item of the property was concerned, according to the first defendant, the said property was gifted to him by his father and that the second item of the property was purchased by him by selling the jewels of his wife, as well as from the money advanced by his father-in-law to him.

7. The first item of the suit property is a house property, in a site measuring 10,000/- sq.ft. in T.S.No.2951/3, at Arulananda Nagar, Thanjavur. The said house site was allotted by a Housing Society called Little Flower Colony House Building Co-operative Society, and the same was purchased by late Nithyanandam, in the name of his eldest son viz., the first defendant/first respondent herein.

11. The appellants and the first respondent are the descendants of late Nithyanandham, who died intestate on 22.09.1956. His wife, the first plaintiff, along with her deceased son Manickavasagam, 4th and 5th appellants, filed a suit for partition, as against the first respondent herein. During the pendency of the litigation before the High Court, the first plaintiff viz., the wife of the late Nithyanandham, as well as one of her sons, the third plaintiff Manickavasagam also died. The wife and the children of late Manickavasagam viz., appellants 1 to 3, therefore, came to be impleaded along with appellants 4 and 5.

15. The trial Court while granting the relief in favour of the appellants, considered the oral evidence of P.W.1, the mother and Ex.A-17 in particular. The High Court while reversing the judgment of the Trial Court placed reliance upon the release deed executed by the first respondent in the year 1959 viz., Ex.A-3 and partition deed of the year 1973, which was entered into between the four plaintiffs in which document the first respondent affixed his signature. The High Court took the view that having regard to the release deed of the year 1959 viz. Ex.A-3 and the partition deed of the year 1973 viz., Ex.A-28, it was established that the first and second items of the suit scheduled properties which were purchased in the name of the first respondent were the exclusive properties of the first respondent and therefore, the appellants were not entitled for partition in those properties.

14. As already stated, the trial Court rejected the stand of the first respondent and held that the appellants were entitled for partition in respect of all the three properties, as they were joint family properties. The High Court however, held that except the suit third item of the property, the first and second items of properties were exclusive properties of the first respondent herein and therefore, the preliminary decree was restricted to the third item of property and in other respects the judgment of the trial Court was set aside.

41. In the light of our above conclusions, the judgment of the Division Bench cannot be sustained. The appeal stands allowed and the judgment of the Division Bench is set aside and the judgment and decree of the Trial Court shall stand restored.

July 02, 2013.