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2006 Supreme(Mad) 2535
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
Kunchithapatham - Appellant
Versus
Dhanaplan & Others - Respondents
A.S.No.488 of 1992
Decided On : 26 September 2006
The plaintiffs are entitled to their share in the property as there was no valid oral partition and the property was self-acquired by Rathinam Padayatchi.
Headnote:
Hindu Succession Act - The plaintiffs claimed their share in the property based on the provisions of the Hindu Succession Act, which entitled them to 3/4th share as heirs of Rathinam Padayatchi.
Fact of the Case:
The plaintiffs filed a suit for partition of their share in a property originally owned by Rathinam Padayatchi. The defendants claimed that there was an oral partition and they were in separate possession of their respective shares. The trial court found in favor of the plaintiffs, granting them 3/4th share in the property. The first defendant appealed against this decision. The appellate court upheld the trial court's decision, stating that there was no evidence of an oral partition and the plaintiffs were entitled to their share.
Finding of the Court:
The court analyzed the settlement deed, oral partition claim, revenue records, and evidence of possession. It concluded that the property was a self-acquired property of Rathinam Padayatchi and there was no valid oral partition. The court also rejected the first defendant's claim of adverse possession.
Ratio Decidendi: The plaintiffs are entitled to 3/4th share in the property as there was no valid oral partition and the property was self-acquired by Rathinam Padayatchi.
Result: The appeal is dismissed, confirming the judgment and decree of the trial court. No costs are awarded.
(Prayer: This Appeal has been fiiled against the Judgment and Decree dated 28.02.1992, passed in O.S.No.21 of 1990 on the file of the Subordinate Court, Chidambaram.)
This appeal has been preferred against the decree and judgment passed in O.S.No.21 of 1990 on the file of the Subordinate Court, Chidambaram.
2. The brief facts of the case of the plaintiffs are as follows:-
2(a) The suit is filed for partition of the plaintiffs’ ¾th share in the suit property. The suit property is an house situated at South Vaaniya Street, Chidambaram. The suit property originally belonged to one Rathinam Padayatchi. His mother Parasakthi Ammal executed a settlement deed in respect of the suit property in favour of Rathinam Padayatchi on 15.06.1949. In pursuance of the settlement deed the said Rathinam Padayatchi was in possession of the property. The said Rathinam Padayatchi died in the year 1961 leaving the plaintiffs and first defendant as his heirs.
2(b) The first plaintiff and first defendant are the sons of the said Rathinam Padayatchi. The second plaintiff is the wife and the third plaintiff is the daughter of said Rathinam Padayatchi. As per the Hindu Succession Act, the plaintiffs 1 to 3 and the first defendant are each entitled to ¼th share in the suit property. The plaintiffs together are entitled to ¾th share in the suit property. Remaining 1/4th share belongs to the first defendant. After the death of the said Rathinam Padayatchi, the plaintiffs and the first defendant are in joint possession of the plaint schedule property upto the year 1985. Plaintiffs and Defendants are living separately. There is misunderstanding arose between the plaintiffs and the first defendant. In the month of April 1988, the plaintiffs demanded the first defendant to partition the suit property and to give a separate possession of the plaintiffs’ share in the suit property. On 15.08.1988, the plaintiffs issued a notice. Inspite of the notice, the first defendant has not come forward for partition of the suit property. Hence, the plaintiffs have filed the suit.
2(c) The defendants 2 to 5 are residing in the suit property. The defendants 2, 3 and 5 are tenants under the first defendant and fourth defendant is the tenant under the first plaintiff. The tenancy right of the defendants 2, 3 and 5 will not in any way obstruct the rights of the plaintiffs, but to avoid any complication the plaintiffs have impleaded defendants 2 to 5 also in the suit as formal parties.
3. The first defendant in his written statement has contended as follows:
The plaint schedule property belonged to the joint family of Rathinam Padatchi and his two sons. The plaint schedule property was mortgaged by Rathinam Padatchi and his two sons in the year 1956 and in 1959 with Co-operative Urban Bank. In the year 1962 the said Rathinam Padayatchi was not well. Hence, he has instructed the first plaintiff and first defendant to partition the suit property among themselves and to enjoy their respective shares in the suit property peacefully. The said partition was not reduced to writing. On 20.12.1964, the first plaintiff and the first defendant have mortgaged their respective shares in the suit property with Urban Bank in order to raise funds to repair the building. After 1965 the southern portion of the suit property was enjoyed by the first defendant and the northern portion was enjoyed by the first plaintiff. A three feet passage was left on the eastern side of the suit property house. The said passage was being used by the first plaintiffs, the tenants and the first defendant to get ingress and egress to their respective shares. There are five tenants in the suit property. The rental portion is facing east. The tenants are being impleaded as Defendants 2 to 5. The first defendant is residing in two of the huts and also receiving rent from the tenants. The plaintiffs' house is situated adjacent to the said huts. The remaining tenants are paying rent to the first plaintiff. The defenda
