The Family Manager, v. Ramasamy Gounder(Deceased

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 15.11.2016 PRONOUNCED ON : 22.11.2016

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Second Appeal No.856 of 1998 Family Manager, Muthusamy Gounder ..Appellant/Plaintiff 1st Respondent Vs 1.Ramasamy Gounder (deceased) 2.Shanmugham 3.Kandasamy 4.Valliammal 5.Sivagami 6.Rangasamy 7.Palanisamy RR 6&7 brought on record as LRS of deceased 1st respondent vide order dated 10.01.2014 in CMP.1853 to 1855 of 2010.

... Respondents Prayer:- Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree of the I Additional District Judge cum Chief Judicial Magistrate, Erode in A.S.No.257 of 1996 dated 24.11.1997 preferred against the judgment and decree of the Subordinate Court, Gobichettipalayam in O.S.No.2 of 1990 dated 14.10.1996.

For Appellants :

Mr.A.K.Kumarasamy For R.1 :

Died For RR2 to 5 :

Given up For RR6 & 7 :

No Appearance

JUDGMENT

The suit for partition and permanent injunction filed by the appellant herein was allowed by the trial Court but, reversed by the First Appellate Court. Aggrieved by this, the appellant has preferred the present second appeal.

2.The brief facts, involved in this case, are as under:- The suit property originally owned by one Mr.Masa Gounder and his brother Mr.Sankara Gounder. The defendants are sons of Mr.Masa Gounder. The plaintiff and his father have purchased the property from Mr.Masa Gounder and his sons. The portion of the suit property was also purchased from one Mr.Veerapa Gounder @ Chinnapa Gounder who is one of the brothers of the defendants in the suit and Mr.Devana Gounder. Thus, vide sale deeds dated 25.08.1952, 10.06.1953 and 09.06.1971, the plaintiff is entitled to 3.47 1/12 cents of land in the suit schedule property along with identical share in the common well. The plaintiff's brother and father have bestowed their shares on the suit properties by way of sale deed and release deed respectively in favour of the plaintiff on 30.08.1988. Since, it is no longer convenient for the plaintiff to enjoy the suit property without demarcating by metes and bounds, hence, the present suit.

3.The first defendant has filed written statement alleging that the plaintiff and the defendants are not co-sharers of the suit property and the suit survey number was divided by metes and bounds long back by the predecessors of the plaintiff and the defendants. For the past 75 years, the predecessors in title of plaintiff and the defendants have their separate possession and enjoyment of their respective specific shares. As a consequence, sub division of the suit property was also made in re-survey and separate patta were also given. Hence, the plaintiff is not entitled for any partition. The defendants have denied the averment made in the plaint that the parties were enjoying separate portions of the suit land for convenient sake and there was no explicit partition, among themselves. Since, there is no cause of action for the suit, the defendants have prayed for the dismissal of the suit.

4.Based on the pleadings of the respective parties, the trial Court has framed the following issues:- "(i)Whether the suit property has been sub divided to partition earlier ?;

(ii)Whether the plaintiff is entitled for any share in the suit property?;

(iii)Whether the plaintiff is entitled for permanent injunction as prayed for ?;

(iv)What other reliefs, the plaintiff is entitled to ?"

5.The trial Court, after considering Exs.A.1 to A.7, marked on behalf of the plaintiff and Exs.B.1 to B.41, marked on behalf of the defendants and based on the evidence of the witnesses examined on either side, has found that from Exs.A.1 to A.3, the plaintiff and his father Mr.Chennimalai Gounder has purchased properties which form part of the suit property. In all these documents, the extent of the land has been shown in common (bghJtpy; ). Through the recital of these documents, the trial Court has accepted the case of the plaintiff that there was no partition effected 75 years ago as pleaded by the defendants and if it is true, there is no necessity to show the properties as in common(bghJtpy; ) while executing the sale deed - Ex.A.1 dated 25.08.1952 and Ex.A.3 dated 09.06.1971.

Further, the trial Court has held that the parent document of these properties conveyed as a common property. On this score, disbelieving the case of the defendants, the trial Court allowed the suit and passed a preliminary decree holding that the plaintiff is entitled for 1/24th share in the suit property which shall be to an extent of 3.47 7/12 cents.

6.On appeal, the First Appellate Court, pointing out even before Ex.A.1 that the parties have divided the property and acted upon it, by selling their shares to the third parties through various sale deeds, with specific metes and bounds. Therefore, the plea of oral partition has to be accepted. The First Appellate Court contra to the finding of the trial Court has held that just because in the recital of Exs.A.1, 3 & 4, the properties were shown as in common (bghJtpy; ), one cannot say that the partition was not effected.

7.The First Appellate Court taking note of the fact that the parties have put up construction and had developed the land in their respective portion of the property doubted if the division is only for convenient enjoyment, nobody would allow the other man to put up permanent structure and permanent development in the undivided portion. Further, in the recital of the the extent of the land (bghJtpy; ) but with four boundaries of those properties, so, it is shown as in common should be construed as divided and separate properties of the respective title holders. So for these reasons, the First Appellate Court has reversed the finding of the trial Court and dismissed the suit. 8.At the time of admission of this Second Appeal, this Court has formulated the following substantial question of law:- "Whether the Lower Appellate Court is justified in accepting the plea of oral partition pleaded by the the first defendant, overlooking that he has miserably

failed to prove the case by examining persons present at the time of oral partition ?"

9.In this case, the earliest document touching upon the suit property appears to be Ex.A.5 dated 06.08.1940 in which, the suit property bearing S.No.201 and another property at S.No.200 are shown as 11.6 acres un-divided portion in common. Through this document, un-divided portion of land, un-divided right in Well were sold. Similarly, in Exs.A.1 to A.3, a similar extent of land in S.No.201 from out of larger extent of 10.83 cents has been sold. For identification of the respective portion, the boundaries are also been mentioned. These by itself cannot lead to an inference that there is a distinct separation of property by metes and bounds by the co owners. What can at the most inferred is that, boundaries are provided to identify the portion of the land which has been conveyed through these exhibits.

It is now well settled proposition of law that partition by metes and bounds can be effected orally only when parties themselves voluntarily agrees upon that and act upon such oral partition. It is for the parties who pleaded oral partition to prove that through acceptable evidence that oral partition was effected by consent and voluntarily and also acted upon.

10.This Court in Mutha Mudali v. Karupanna Goundan (1956 II MLJ 168) has held as early as in the year 1959, that "there could be an oral partition between the members of the joint family, since, it is neither extreme nor it is involved in a transfer of property no writing is necessary to effect the partition". To prove the factum of oral partition, two main ingredients are required: (i)the joint owners voluntarily agrees to divide their properties by metes and bounds and (ii)as a consequence, they have taken up their respective portion and acted upon such oral partition.

11.In the present case, though, it is pleaded that there was a oral partition, there is nothing to show on record that the property under S.Nos.200, 201 and 202 were divided among the owners by metes and bounds. Contrarily all throughout, the properties are mentioned as undivided part of the larger extent. 12.In this regard, the defendants have examined two witnesses Mr.Ramasamy Goudner and Mr.Mani Gounder. Mr.Ramasamy Gounder is the the first defendant in the suit. In his evidence, he claims that the suit property originally owned by Mr.Veerapa and Mr.Masa Gounder which extends to 11.6 cents and 17 years ago, the suit property was divided among them. His father Mr.Sankara Gounder got share from Mr.Veerapa Gounder and whereas Mr.Masa Gounder's share was devolved upon his two sons. The

further evidence is that he and his brothers, divided their shares 45 years ago and each got 1.84 acres. For both these partitions, the first defendant admits that there is no written document. He has purchased 6 1⁄2 acres of land from one Mr.Soundaya Gounder and Mr.Soundaya Gounder right over the property not explained away by the witness and he admits that he has not seen the title deed of Mr.Soundaya Gounder claiming right over 6 1⁄2 acres of land in the suit mentioned property. The defendants claim that there is no property left over in S.No.201 as claimed by the plaintiff.

13.The claim of the defendants that there was partition of the suit property among co-sharers by metes and bounds is neither supported by any collateral document nor by clinching oral evidence. It is contrary to the recital of written documents such as Exs.A.1 to A.3. Therefore, this Court finds force in the submission made by the appellant when all the title deeds indicates that only undivided interest in the suit schedule has been purchased just because parties were enjoying separate portion for long time cannot lead to an inference that there was oral partition. Such an inference made by the First Appellate Court is baseless.

14.Since, the parties have allowed to put up construction in their respective portions, possessed by the owner for convenient enjoyment cannot carry ingredient of an oral partition. One should bear in mind that the concept of oral partition itself is a deviation to the Registration Act and could be extended only in proven and admitted case.

15.When it is not admitted and no proof to show oral partition was effected, either 75 years ago between the predecessor in title of the plaintiff and the grand father of defendants, such an inference cannot be drawn. Therefore, the second appeal is allowed on the ground that the plaintiff has proved the documents relied on by him that the properties he purchased were undivided share of a larger extent lying on S.Nos.200 & 201 whereas, the first defendant has failed to prove oral partition and therefore, as per the title deeds of the plaintiff, the property has to be divided by metes and bounds. Accordingly, the judgment and decree passed by the First Appellate Court is set aside and the decree passed by the trial Court is restored.

16.It is borne by record that some superstructures have been put up by the respective parties, in the suit land. In such case, while passing final decree, the Court may take note of the fact and apportion the property in such a way that the superstructures put up by respective parties fall within the portions allotted to them. No costs.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar jbm To 1.The I Additional District Judge cum Chief Judicial Magistrate, Erode.

2.The Subordinate Court, Gobichettipalayam.

Copy to: The Section Officer, VR Section, High Court, Madras.

+ 1 cc to M/s. A.K. Kumarasamy, Advocate sr.67997 Second Appeal No.856 of 1998 UG(CO) EU 03.2.17