Chandrahasan v. N.Ramachandran Died

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.12.2023 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.Nos. 123 & 124 of 2018 S.A.No.123 of 2018

1.Chandrahasan

...Appellant Vs. N.Ramachandran (died)

1.Nandagopal

2.Navanarayanan

3.Rajakumari

4.Kasturi

5.Kolanji

6.Thailammal

...Respondents PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree of the learned Principal District Judge of Cuddalore dated 27.07.2015 and passed in AS.No.90 of 2012 dismissing the appeal confirming the judgment and decree of the learned Sub-ordinate Judge of Panruti dated 01.10.2012 and passed in O.S.No.24 of 1996. For Appellant : M/s.R.Gururaj For Respondents 2 to 6 : Mr.V.Radhakrishnan Senior Counsel for M/s.S.Kadarkarai For Respondent 1 : Died S.A.No.124 of 2018 Chandrahasan

...Appellant Vs.

1.Nandagopal

2.Navanarayanan

...Respondents PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree of the learned Principal District Judge of Cuddalore dated 27.07.2015 and passed in AS.No.91 of 2012 dismissing the appeal confirming the judgment and decree of the learned Sub-ordinate Judge of Panruti dated 01.10.2012 and passed in O.S.No.70 of 2005. For Appellant : M/s.R.Gururaj For Respondents 1 &2 : Mr.V.Radhakrishnan Senior Counsel for M/s.S.Kadarkarai COMMON JUDGEMENT S.A.No.123 of 2018 is arising out of suit for partition filed by the appellant/plaintiff in respect of 14 items of suit property. The suit was dismissed by the Trial Court and the findings of the Trial Court were affirmed by the First Appellate Court. Aggrieved by the same, the unsuccessful plaintiff has come up with S.A.No.123 of 2018.

¶2S.A.No.124 of 2018 is arising out of suit of declaration and injunction filed by respondents 1 and 2. The suit was decreed by the Trial Court and the appeal filed by the appellant/defendant was also dismissed. Aggrieved by the concurrent findings against him, the appellant has come up with S.A.No.124 of 2018.

¶3The items 5, 6 and 10 in S.A.No.123 of 2018 are shown as suit properties in S.A.No.124 of 2018. For the sake of convenience, the parties are referred to as per their ranking in O.S.No.24 of 1996 out of which S.A.No.123 of 2018 arises.

¶4According to the appellant/plaintiff in O.S.No.24 of 1996, the suit properties were allotted to the share of plaintiff and first defendant in a registered family partition dated 19.06.1978 marked as Ex.A1. The second defendant is the wife of first defendant and defendants 4 to 9 are children of first and second defendants. The third defendant is the paternal aunt of plaintiff and first defendant. It was claimed by the appellant that first defendant indigenously hatched a plan by inviting third defendant to file a collusive suit to set aside the settlement deeds executed by her in favour of first defendant. In the said suit, the first defendant conveniently remained exparte and suffered a collusive decree. The properties settled in favour of first defendant under the settlement deeds executed by Uchitham Ammal were subject matter of partition between plaintiff and first defendant dated 19.06.1978. Therefore, any decree obtained by Uchitham Ammal against first defendant collusively would not bind the appellant/plaintiff. Since there was some misunderstanding between plaintiff and first defendant regarding enjoyment of the suit properties, the appellant/plaintiff was constrained to file a suit for partition.

¶5The respondents filed a written statement and resisted the suit mainly on the ground that items 5, 6 and 10 do not belong to the family and they were exclusive properties of third defendant. The third defendant settled the items 5, 6 and 10 in favour of first defendant. With regard to the other items of the suit properties, the first defendant contended that immediately after partition in which the suit properties were allotted to the share of plaintiff and first defendant, there was a oral partition between plaintiff and first defendant and the other items of suit properties were divided by metes and bounds and they have been enjoying respective shares allotted to them. In such circumstances, the second suit for partition was not maintainable.

¶6The third defendant filed a separate written statement and contended that items 5, 6 and 10 were purchased by her and those items were her separate properties. It was further contended that taking advantage of the fact that she was living away from her husband, the first defendant managed to get two settlement deeds in his favour. Those settlement deeds were admitted. The third defendant filed a suit in O.S.No.44 of 1992 for a declaration that she was entitled to for a declaration of her title in respect of items 5, 6 and 10 and for recovery of possession and the said suit was decreed exparte in her favour and she had taken possession through Court. Thus, she claimed exclusive right over the items 5, 6 and 10 of the suit properties.

¶7Before the Trial Court, the appellant/plaintiff was examined as P.W.1 and on behalf of the plaintiff, 10 documents were marked as Ex.A1 to Ex.A10. The first defendant was examined as D.W.1 and on behalf of respondents/defendants, 5 other witnesses were examined as D.W.2 to D.W.6. 62 documents were marked on behalf of the respondents as Ex.B1 to Ex.B62.

¶8The Trial Court, after taking into consideration the sale deed in the name of Uchitham Ammal, third defendant and the decree passed in the earlier suit filed by her in O.S.No.670 of 1991 marked as Ex.A6 and O.S.No.441 of 1992 marked as Ex.A10, came to the conclusion that items 5, 6 and 10 were separate properties of Uchitham Ammal and as such, the plaintiff was not entitled to maintain a suit for partition in respect of those properties. As far as other items of the suit properties were concerned, the Trial Court, based on admission of appellant as P.W.1 that the other suit properties were partitioned orally between plaintiff and first defendant and he had been in possession and enjoyment of the 1/2 of the suit properties, dismissed the suit on the ground that suit for partition would not lie when there was earlier oral partition between plaintiff and first defendant.

¶9Aggrieved by the same, the appellant preferred two first appeals in A.S.No.90 of 2012 and A.S.No.91 of 2012 on the file of Principal District Judge, Cuddalore. The First Appellate Court concurred with the findings of the Trial Court and dismissed the first appeals. Aggrieved by the concurrent findings against him, the appellant has come by way of second appeal.

¶10The learned counsel for the appellant submitted that under Ex.A1, partition deed, the suit properties were jointly allotted to the share of plaintiff and first defendant and hence, the respondents are not entitled to deny the plaintiff's 1/2 share in the suit properties. The learned counsel further submitted that earlier suits O.S.No.670 of 1991 and O.S.No.441 of 1992 filed by third defendant against first defendant was not binding on the appellant when he was not arrayed as a party in the earlier suits. Therefore, the judgment and decree passed by the Courts below based on the findings in the earlier suits to which the appellant was not a party is liable to be set aside.

¶11It is seen from Ex.B17 and Ex.B18, the suit items 5, 6, and 10 were purchased in the name of third defendant, Uchitham Ammal. It is the case of the plaintiff that father of the plaintiff and first defendant purchased the properties in the name of third defendant, Uchitham Ammal. However, there is no evidence available on record to support the said contention of the appellant except the interested testimony of P.W.1. When a registered sale deed stands in the name of third defendant, female member of the family, the same shall be presumed to be her property unless there is a concrete evidence available on record to show that consideration for the same was paid by father of the parties. Therefore, based on Ex.B17 and Ex.B18, both the Courts below rightly came to the conclusion that Uchitham Ammal, third defendant was the owner of items 5, 6 and 10 of the suit properties. It is also seen from records that third defendant executed two settlement deeds dated 01.06.1966 and 31.10.1970 under Ex.B19 and Ex.B20 in favour of first defendant. However, those settlement deeds were cancelled in a suit filed by third defendant under Ex.A6. Subsequently, third defendant filed a suit for declaration of her title and recovery of possession against first defendant and the same was decreed. In pursuance of the said decree, third defendant had taken possession of the property namely items 5, 6 and 10 through Court. The appellant herein claiming himself in joint possession of the said items of property, failed to object for delivery of said items in favour of 3rd defendant, when the possession of items 5, 6 and 10 were taken by Uchitham Ammal (D3) through Court. The tax receipts filed by the respondent as Ex.B30 to Ex.B55 clearly proves that Uchitham Ammal continued to pay tax to Government in respect of those properties.

¶12Though, there is some force in the argument of the learned counsel for the appellant that decree obtained by third defendant against first defendant would not bind him, as seen from Ex.17 and Ex.18, Uchitham Ammal purchased items 5, 6 and 10 by way of registered sale deed in her name. The subsequent suit filed by her for setting aside settlement deeds, declaration of her title, recovery of possession etc., though not inter parties, it will have some evidentiary value. The failure of appellant to raise any objection when possession of item 5, 6 and 10 were taken by 3rd defendant, creates serious doubt about his claim as if he is in joint possession of said items. The tax receipts in name of 3rd defendant clearly proves she has been in effective control of said items. In such circumstances, the findings reached by the Courts below that Uchitham Ammal was exclusive owner of items 5, 6 and 10 is based on the evidence available on record and the same requires no interference by this Court.

¶13As far as other items of the suit properties are concerned, the appellant, when he was examined as P.W.1 clearly admitted that there was a oral partition between him and first defendant and he had been in possession and enjoyment of 1/2 of the suit properties allotted to him. He also admitted that items 5, 6 and 10 were purchased by Uchitham Ammal. The relevant portion of his evidence reads as follows:- S.A.Nos.123o&o124oofo2018 ",ej; tHfF; jhff; y; braJ; ss; jhth brhjJ; ff; spy; midjj; pYk; css; ghjp ghfj;ij ehd; mDgtpj;J tUfpnwd/; vdf;Fk; 1?k; gpujpthjpfF; k; tha;bkhHpahf ghfk; gphpj;Jf; bfhz;nlhk/; tHfF; 4?tJ mapll; jj; py; css; 1 Vff; h; 72 brzo; y; ehd; ghjpa[k; vd; mz;zd; 1?k; gpujpthjp ghjpahftk[ ; mDgtpj;J tUfpnwhk/; 3?k; gpujpthjp crr; pjk; mk;khis nehzh';Fgg; jj; py; jpUkzk; bra;JbfhLjj; hhf; s/; mth; vd;Dila mj;ij/ mej; nehzh';Fgg; k; fpuhkk; KGtija[k; vd;vy;rp epWtdjj; hh; epyj;ij ifgg; w;wpf; bfhzl; hhf; s; vd;why; rhpjhd/; mtt; hW vd;vy;rp epWtdjj; hh; nehzh';Fgg; k; fpuhkj;ij ifgg; w;wpf; bfhzl; tl[ d; cr;rpjk;khs; vd; mj;ij nkypUgg; [ fpuhkjj; py; teJ; Fonawptpll; hhf; s; vd;why; rhpjhd/; jhth 5. 6. 10 mapll; 'f; is bghUj;J 3?k; gpujpthjp crr; pjk;khshy; fpuak; bgwgg; ll; brhjJ; vd;why; rhpjhd/; mej; brhj;ij vd; je;ijjhd; fpuak; vd; mj;ijnghpy; th'f; pf; bfhLjj; hh/; nkwg; o brhj;Jff; isg; bghUj;J vd; je;ij 3?k; gpujpthjpahd vd; mj;ijgn; gUf;Fk; fpuak; th'f; pf; bfhLff; tpy;iy 3?k; gpujpthjp jpUkzk; bra;Jf; bfhLjj; nehzh';Fgg; k; fpuhkj;ij vd;vy;rp me;j fpuhkj;ij vLj;Jf;bfhz;ljhy; vd;vy;rp epWtdj;jhh; vLj;Jf;bfhz;L gzk; bfhLj;jhh;fs; vd;why; rhpjhd;/ jhth 7?tJ mapl;l brhj;J 1 Vf;fh; 8 brz;oYk; ehDk; 1?k; gpujpthjpa[k; ghjp ghjpahf mDgtpj;J tUfpnwhk;/ ehDk; 1?k; gpujpthjpa[k; jhth brhj;Jf;fis ghjp ghjp ghfkhf 1978?k; Mz;oy; gphpj;Jf; bfhz;L mJ Kjy; mDgtpj;J tUfpnwhk; ".

¶14A reading of the above evidence of P.W.1 would clearly indicate that there was a oral partition between appellant and first defendant subsequent to the registered partition marked as Ex.A1 and they have been in possession and enjoyment of the properties allotted to their share. When appellant himself as P.W.1 clearly admitted the suit properties were divided between him and first defendant and they had been in possession of their respective 1/2 share from the year 1978, the Courts below rightly found that the suit for partition filed by appellant was not maintainable. The said conclusion reached by the Courts below is based on well pronounced admission of the appellant as P.W.1.

¶15I do not find any perversity in the factual conclusions reached by the Courts below and consequently, the second appeals are deserved to be dismissed as it does not involve any substantial question of law.

¶16Accordingly, both the second appeals are dismissed. a) by affirming the judgment and decree passed in A.S.No.90 of 2012 and A.S.No. 91 of 2012 on the file of Principal District Judge, Cuddalore dated

27.07.2015 confirming the judgment and decree passed in O.S.No.24 of 1996 and O.S.No. 70 of 2005 on the file of the learned Sub-ordinate Judge, Panruti dated 01.10.2012. b)In the above facts and circumstances of the case, there will be no order as to costs.

13.12.2023 Index : Yes

Internet : Yes : Yes nr To

1.The Principal District Judge, Cuddalore.

2.The Sub-ordinate Judge, Panruti. S.SOUNTHAR

, J.

nr S.A.No. 123 & 124 of 2018

13.12.2023