Thayumanasamy v. Dhanalakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 27.06.2017

CORAM

THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN SA.No.384/2017 Thayumanasamy ..Appellant/ Appellant/defendant

Versus

1.Dhanalakshmi 2.Thulasiammal ..Respondents/ Respondents /Plaintiffs Prayer:

Second Appeal filed under section 100 of the Code of Civil Procedure against the judgment and decree dated 03.01.2017 made in A.S.No.39/2015 on the file of the learned Subordinate Court, Sathyamangalam and also confirming the Decree and Judgment dated 22.12.2014 made in O.S.No.58/2010 on the file of learned District Munsif Court, Saythyamangalam with costs. For Appellant :

Mr.R.Vijayan

JUDGMENT

The 1st defendant, who had lost before the Courts below, is the appellant herein.

The respondents 1 and 2 along with one Poovaathal filed a suit in O.S.No.58/2010 on the file of the Court of District Munsif, Sathyamangalam, against the appellant / 1st defendant herein and one Mr.Velusamy for the relief of partition and separate possession and other consequential reliefs and subsequently, the plaint came to be amended, praying for relief of 1/2 share in favour of the plaintiffs. A preliminary decree came to be passed in the said suit after contest. The appeal suit filed by the defendants 1 and 2 was also dismissed by the Lower Appellate Court and hence, this Second Appeal. Facts leading to the filing of the Second Appeal are briefly narrated as follows:- [a] The plaintiff would aver among other things that the suit property was originally belonged to their father viz., Komarasamy Gounder, by virtue of the Sale Deed dated 25.06.1958

(Ex.A1) and he died on 09.02.1965, leaving behind him, his wife viz., Rangammal and his children namely Masiriammal @ Maragatham, Palanisamy, Kolandaivel and the plaintiffs 1 to 3 herein as well as the 1st defendant as his legal heirs. Rangammal died on 07.12.1992 and Masiriammal @ Maragatham died during the year 2009 without any issues. Her husband Velappa Gounder died 10 years ago, Palanisamy died on 27.05.2001 and Kolandaivel died on 06.08.1995 respectively and at the time of their demise, they remained unmarried. Since, the plaintiff would contend that as on the date of filing the suit, the plaintiffs and the defendants are the only legal heirs and each of them are entitled to 1/4th share in the suit property and originally, they filed a suit for partition and separate possession of 3/4th share and on pendency of suit, 3rd defendant died on 10.04.2013 and since, they have not left with any legal issues, amendment of the plaint was sought and it was ordered, accordingly claiming 2/4th share in the suit property.

[b] The 1st defendant had filed the written statement denying the averments and would contend that it is not correct to state that Masiriammal @ Maragatham died without any legal heirs and her husband Velappa Gounder died 10 years ago and would further aver that the marriage of Masiriammal @ Maragatham with Velappa Gounder has not been consummated and therefore, she was given in marriage to one Velusamy, son of Nanjappa Gounder [2nd defendant] and after the demise of Masiriammal @ Maragatham on 28.01.2009, her husband Velusamy was there to succeed to her estates. The 1st defendant would further aver that even during the lifetime of their father, the plaintiffs were given marriage in a grand manner and as such, they are not entitled to claim any share in the suit property and also took a stand that admittedly, Komarasamy Gounder died 40 years back and after a long lapse of time, they are not entitled to come with a suit for partition and other consequential reliefs and therefore, prays for dismissal of the suit.

[c] The 2nd defendant also filed a written statement stating among other things that he married Masiriammal @ Maragatham and both of them lived as husband and wife. On 28.01.2009, she died leaving behind him as only legal heir and as such, he is entitled to 1/4th share in the suit property. The Trial Court on consideration of pleadings has framed the following issues:- ● Whether the suit properties belong to Komarasamy gounder absolutely?

● Whether the Plaintiffs and the Defendants are the only surviving legal heirs of Komarasamy gounder? ● Whether the Plaintiffs and the Defendants are the only surviving legal heirs of Komarasamy gounder? ● Whether the Plaintiffs are entitled for a

Preliminary decree as prayed for?

● To what other relief the Plaintiffs are entitled to? Subsequently, after amendment of plaint the following additional issues were framed:

● Whether the 2nd defendant is the husband of Masiriammal @ Maragatham and is entitled to a share in the suit properties?

● Whether the 3rd plaintiff has died without leaving any heirs?

● Whether the shares claimed in the plaint after amendment is true and correct?

During the course of trial, the 1st plaintiff examined herself as PW.1 and marked Exs.A1 to A10. The 1st defendant examined himself as DW.1 and 2nd defendant examined himself as DW.2 and on behalf of defendants, Exs.B1 to B5 were marked.

The Trial Court on a consideration of the pleadings and appreciation of oral and documentary evidences vide judgment and decree dated 22.12.2014 granted preliminary decree as prayed for.

The defendants 1 and 2, aggrieved by the granting of preliminary decree by the Trial Court, filed an appeal in AS.No.39/2015 on the file of learned Subordinate Judge, Sathyamangalam. The Lower Appellate on perusal of grounds of appeal had formulated the following points for determination:- ● Whether the 2nd defendants is entitled to share in the suit property?

● Whether the appeal is to be allowed?

● To what other relief the plaintiffs are entitled to? The Lower Appellate court on appreciation of oral and documentary evidences found that Masiriammal @ Maragatham was given in marriage to Velappa Gounder and on the subsistence of the marriage, she was given marriage to 2nd defendant and concurred with the findings rendered by the Trial Court that in the absence of any valid decree for divorce, marriage of Masiriammal @ Maragatham with 2nd defendant cannot be said to be valid in the eye of law and the 2nd defendant cannot claim any share in the property devolved upon with the said person. The Lower Appellate Court had further found that they died without any legal issues and therefore, the plaintiffs are entitled to get the preliminary decree as prayed for and thereby, confirming the findings rendered by the Trial Court vide impugned judgment and decree dated 03.01.2017.

The 1st defendant aggrieved by the judgment and decree passed by the Lower Appellate Court by confirming the judgment and decree passed by the Trial Court has filed the Second Appeal.

It is to be noted at this juncture that on pendency of the appeal suit, the 2nd appellant/2nd defendantVelusamy died and therefore, cause title was also amended suitably.

In memorandum of grounds of appeal, the following substantial questions of law are raised by the appellant/1st defendant:- ● On the available facts and circumstances of the case, whether the Learned Judge is right in granting a preliminary decree for partition, when the plaintiffs were finally ousted, form their interest over the suit property after their mother died on 1992 wherein the succession opened?

● When the Trial Court finding is that the 2nd defendant Velusamy, was not the husband of Masiriammal @ Maragatham whether the 1st appellant Court is right in confrming decree of the trial court without remanding the case to the Trial Court for framing the issue on the ouster plea taken by the 1st defendant?

● Whether the judge is right in the decreeing the suit without any evidence about the possession and enjoyment of the suit property by the plaintiff in as much as the plaintiff served with their parent family long ago in the year 1968-1969 and lived permanently in their husbands family and the right and interest over the suit property finally adverse to them in the year 1992 when the succession opened on the demise of their mother Rangammal?

It is the primordial submission of the learned counsel appearing for the appellant/1st defendant that admittedly, the father of the respondents 1 and 2 as well as the appellant died about 40 years back and the plaintiffs 1 and 2 and defendants 1 and 2 did not demand partition and therefore, they are ousted from claiming any right in the suit property and he would further contend that unfortunately, the Trial Court as well as the Lower Appellate Court did not frame any issue as well as points for determination with regard to the said aspect and therefore, prays for setting aside of the impugned judgment and decree passed by the Courts below and remanding the matter

for the Trial Court to frame an appropriate issue and thereafter, proceed with the trial.

In the considered opinion of this Court, the points raised on behalf of appellant/1st defendant, lacks merit and subsistence for the following reason. The 1st defendant in his written submission made the following averment: thjpfspd; je;ijahh; ,we;J 40 Mz;LfSf;F nkw;gl;L. ghfk; nfhu thjpfSf;F chpikapy;iy/ and the translated version is as follows:

"The father of the plaintiffs died 40 years above and as such, they are not entitled to claim partition".

In the considered opinion of this Court, a mere specific pleading has been put forth by the appellant/1st defendant as to the plea of ouster and as a consequence, the Trial Court did not frame any issue and also not beyond any findings. The Lower Appellate Court also did not formulate any point for determination with regard to the plea of ouster. The Honble Supreme Court in the decision reported in AIR 1957 SC 314 [P.Lakshmi Reddy vs. L.Lakshmi Reddy] referred to the decision in Corea v. Appuhamy reported in 1912 AC 230 [c]. In the said case, the principle of law has been clearly enunciated and it is relevant to extract the same:- "5.

It is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one of them is in sole possession or enjoyment of the profits of the properties. Ouster of the non-possessing co- heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title.

It is a well settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."

Admittedly, no plea has been raised by the appellant/1st defendant with regard to the plea of ouster and no evidence has also been put forth. The appellant for the first time before this Court has raised the substantial questions of law with regard to the plea of ouster. In the considered opinion of this Court, the said plea is wholly unsustainable before the law for want of pleading.

The Courts below had recorded concurrent findings that the sister of the appellant as well as the respondents 1 and 2, Masiriammal @ Maragatham during the subsistence of marriage with Velappa Gounder, married the 2nd defendant and recorded the findings that in the absence of any valid decree, her marriage with the 2nd defendant is not valid under law and as such, he is not entitled to any share.

It is not even the claim of the appellant/1st defendant that the partition took place on an earlier occasion and the only plea arise is that since, their father died 40 years back, the respondents/plaintiffs 1 and 2 cannot claim the relief of partition. The Courts below had went into the said issue elaborately and recorded the concurrent findings that the said plea put forth by the appellant/1st defendant is unsustainable.

In the considered opinion of this Court, the findings rendered by the Courts below are based upon the correct application of law and proper appreciation of oral and documentary evidences and as such, no perversity has been attached to the said findings.

Therefore, no substantial questions of law arise for consideration in the Second Appeal. The Second Appeal lacks merit.

In the result, the Second Appeal is dismissed at the admission stage itself, confirming the judgments and decree passed by the Courts below. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.

Sd/- Asst.Registrar (CCC) /true copy/ Sub Asst. Registrar To 1.The Subordinate Judge, Sathyamangalam, Erode.

2.The District Munsif, Sathyamangalam, Erode.

Copy to:

The Section Officer VR Section, High Court, Madras.

+1cc to M/s.R.Vijayan,Advocate sr.44456 SA.No.384/2017 rsk(co) ss(5/9/2017)