The plaintiffs failed to prove their claims of ownership based on oral partition and a will, leading to the dismissal of their suit.

ORDER :

1. This application is filed by the applicant(s)/respondent(s) seeking recall of judgment dated 03.01.2024 passed in the instant Civil Appeal on the ground that the respondents in the appeal were not served.

2. Having considered the grounds taken for nonappearance, we are of the view that the application deserves to be allowed. Accordingly, the application is allowed and the judgment dated 03.01.2024 is recalled.

3. The appeal is taken on board.

4. Having heard both sides, we allow the Civil Appeal, in terms of the signed reportable judgment.

JUDGMENT :

VIKRAM NATH, J.

1. Leave granted.

2. This appeal, by the defendants, assails the correctness of the judgment and order dated 28.07.2022 of the High Court of Judicature at Madras whereby the Second Appeal No.351/2021 filed by the plaintiff was allowed and the concurrent judgments of the Trial Court and the Sub-Judge dismissing the suit of the plaintiff-respondents were set aside and the suit was decreed.

3. Facts in nutshell are :

3.1 The respondent instituted a suit before the Munsiff Court, Tiruchengode registered as OS No.200/2011 claiming relief of declaration that the sale deed dated 10.02.2011 executed by the first defendant in favour of second defendant was null and void and to declare that suit property belonged to the plaintiffs and further for relief of an injunction against the defendants.

3.2 According to the plaint case, the property in question originally belonged to one Avinashi Gounder who had four sons namely, Arunachalam, Arumugam, Ramasamy and Palaniyappan. Plaintiff No.1 is the wife and plaintiff no.2 is the adopted son of Arunachalam. The first defendant is the daughter of Palaniyappan and the second defendant is the vendee of the suit property from defendant no.1.

3.3 According to the plaintiffs, the four brothers had entered into an oral partition and the suit property came to the share of Arunachalam. Subsequently Arunachalam on 16.07.2003, had executed a will whereby the suit property and other properties belonging to Arunachalam were bequeathed in favour of the plaintiffs. Upon the death of Arunachalam on 30.04.2006, the plaintiffs became the absolute owners of the property in suit. Further case of the plaintiffs was that plaintiff no.2 and defendant no.2 were running a partnership business and the property in suit was offered as a security to the Karur Vysya Bank. It was the second defendant who had signed the loan papers and the security papers with the Bank. As the loan amount could not be repaid by defendant no.2, it was plaintiff no.2 who had cleared the outstanding loan of the Bank. Further it is claimed that defendant no.2 clandestinely obtained the sale deed on 10.02.2011 in respect of the suit property from the first defendant. It was further the case of the plaintiff that the entire property which was allotted to Palaniyappan (father of defendant no.1) had been sold by defendant no.1 on 15.07.1981 with specific boundaries to one Mathiyalagan. It was thus the claim of the plaintiffs that the defendants would not have any right over the properties of Avinashi Gounder and that the plaintiffs were in possession and were cultivating the land in suit but as the defendant no.2 tried to trespass the suit property on 24.07.2011, the necessity for filing the suit arose.

3.4 The defendants filed their written statement denying that there was any oral partition between the sons of Avinashi Gounder with respect to the suit property. They also denied that plaintiff no.2 was the adopted son of Arunachalam. The defendants had further pleaded that survey number in question had a total area of 2.17 cents in which Avanashigounder’s family had 1/3rd share i.e. 72 cents. These 72 cents were partitioned amongst the three sons of Avanashigounder namely, Arunachalam, Ramasamy and Palaniyappan. The fourth son Arumugam had died issueless and his share was equally shared by the three brothers. Thus, each brother became entitled to 24 cents. Palaniyappan, father of defendant