Meenakshisundaram v. Sundaravalli

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.08.2017

CORAM:

THE HONOURABLE MR.JUSTICE R. SUBRAMANIAN A.S.No.26 of 2012 and M.P.No.1 of 2012 Meenakshisundaram ... Appellant ..Vs..

1.Sundaravalli 2.Natarajan (deceased) 3.Madheswaramurthy 4.Saravanan 5.Selvarani 6.Manoranjitham 7.Kanchara .. Respondents (R-7 brought on record as LRS of the deceased 2nd respondent vide order of Court dt.24.07.2017). Prayer:

Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 & 2 of the Code of Civil Procedure, as against the Judgement and Decree, dated 25.08.2011 made in O.S.No.165 of 2010 on the file of the Principal District Judge, Namakkal District. For Appellant : Mr.R.Sivaraman For R-1 : Mr.R.Rajesh For R- 3 to 6 : Mr.G.Sudhakar For R-7 : Mr.S.Vijay Anand

JUDGEMENT The third defendant in O.S.No.165/2010 is the appellant. The said suit was filed by the first respondent/plaintiff seeking partition and separate possession of her 1/7th share in the suit properties. 2.According to the plaintiff, the suit properties belonged to one Ramasamy Mudaliar who had purchased the same from and out of his own income. The said Ramasamy Mudaliar died on 07.05.1976, and his wife Deivanai also died on 06.09.2008. Ramasamy Mudaliar had 5 sons and 3 daughters. The first daughter Padmavathy died issueless during 1982, leaving behind her husband Lakshmanan. The said Lakshmanan died subsequently. Therefore, according to the plaintiff, she would be entitled to 1/7th share in the suit properties. 3.All the defendants, except the third defendant supported the case of the plaintiff.

The third defendant filed a written statement admitting that Ramasamy Mudaliar was the purchaser of the suit properties, that they are self acquired properties of Ramasamy Mudaliar and that he died intestate. The deaths of one of the daughters viz., Padmavathi and her husband were also admitted.

Ramasamy Mudaliar-Sundararajan died in 1999, and his wife Manoranjitham was impleaded as 6th defendant. 4.According to the third defendant, the plaintiff and the sixth defendant were in possession of one of the suit properties and the rental income for the other two properties is being collected by the defendants 1, 2 and 4 who are the other sons of Ramasamy Mudaliar. He would also contend that the plaintiff and the other sisters were given marriage after spending huge amounts. Therefore, the plaintiff is not entitled to seek partition.

5.On the above pleadings, the learned trial Judge framed the following issues:

1.Whether the plaintiff is entitled to 1/7th share in the properties?

2.Whether the 3rd defendant spent the marriage expenses to the plaintiff and the 5th defendant?

3.Whether the defendants 1, 2, 4 and 6 receiving the monthly rent of Rs.5,000/- and enjoying the properties?

4.To what other relief, the plaintiff is entitled to?

6.The plaintiff examined herself as P.W-1 and Exs.A-1 to A-7 were marked on the plaintiff's side. The third defendant examined himself as D.W-1. No exhibits were marked on the defendants' side. 7.Upon consideration of the evidence on record and the admissions made by the third defendant as D.W-1, the trial Court has come to the conclusion that the plaintiff is entitled to a decree as prayed for. Aggrieved over the same, the third defendant is on appeal. 8.I have heard Mr.R.Sivaraman, learned counsel appearing for the appellant, Mr.R.Rajesh, learned counsel appearing for the 1st respondent, Mr.G.Sudhakar, learned counsel appearing for the respondents 3 to 6, and Mr.S.Vijay Anand, learning counsel appearing for the 7th respondent.

9.Mr.R.Sivaraman, learned counsel for the appellant would contend that the trial Court erred in dis-believing the evidence of D.W-1, with reference to the marriage expenses incurred by him. He

would also contend that the plaintiff being in a possession of a portion of the suit property would not be entitled to mesne profits. 10.Per contra, Mr.R.Rajesh, learned counsel for the first respondent/plaintiff would contend that the trial Court was right in dis-believing the evidence of the third defendant with reference to the marriage expenses. According to him, marriage expenses were also incurred from and out of the income from the suit properties. He would also contend that the claim of the plaintiff on the question of quantum of mesne profits will have to be decided by way of separate proceedings.

11.On the above rival pleadings, the following issues arise for determination in the appeal:

1.Whether the claim of the third defendant that he spent monies for the marriage of the plaintiff and other daughters of Ramasamy Mudaliar is true?

2.Whether the plaintiff is entitled to mesne profits?

POINT NO.1:- Though the third defendant would contend that he spent for the marriage of the daughters of Ramasamy Mudaliar he has totally failed to establish the same. Except the interested testimony of D.W-1, nothing is forthcoming from the third defendant in proof of the said plea. The trial Court had taken note of the fact that the other brothers of the 3rd defendant viz., the defendants 1 to 4 have not taken such a stand and they have admitted the case of the plaintiff. In view of the same, I do not find any error in the conclusion of the trial Court. POINT NO.2:- As regards the grant of mesne profits is concerned, the trial Court had rightly held that the plaintiff would be entitled to a share in the income from the suit properties.

But, if it is shown that the plaintiff is also in possession of a property capable of yielding income, the same could be deducted from the share of the mesne profits of the plaintiff in the proceedings for determination of the mesne profits. Hence, I do not find any reason to interfere with the findings of the trial Court, and the appeal is liable to be dismissed.

12.In fine, the appeal is dismissed, confirming the judgement and decree of the trial Court. Considering the relationship between the parties there will be no order as to costs in this appeal. Consequently, the connected miscellaneous petition is closed. 29.08.2017 Index: No Internet:Yes KP To 1.The Principal District Court, The Principal District Judge, Namakkal.

2.The Section Officer, V.R.Section, High Court, Madras.

R.SUBRAMANIAN,. J.

KP A.S.No.26 of 2012 29.08.2017