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High Court of Judicature at Madras
T. MATHIVANAN, J.
N. Thirumuppa Gowder
Versus
Ponnusamy & Others
S.A. No. 1574 of 2005
Decided On : 01-08-2014
oral partition - property dispute - [Indian Evidence Act 1872, Section 154(1), Section 114] - The court analyzed the evidence and found that the alleged oral partition in 1959 was not proved. The court also found that the plaintiff was entitled to a ½ share in the suit property. The court further held that the first defendant's unilateral sale of the entire property was impermissible as he could only sell his ½ share. The court also noted that the defendants' inconsistent pleas and failure to establish their claims weakened their case. The court allowed the second appeal, set aside the lower appellate court's judgment, and restored the trial court's judgment.
Fact of the Case:
The plaintiff filed a suit for partition of his ½ share in the suit property. The trial court granted a preliminary decree in favor of the plaintiff, but the lower appellate court reversed the judgment and dismissed the suit. The second appeal challenged the lower appellate court's decision.
Finding of the Court:
The court found that the alleged oral partition in 1959 was not proved, and the plaintiff was entitled to a ½ share in the suit property. The court also held that the first defendant's unilateral sale of the entire property was impermissible. The court noted the defendants' inconsistent pleas and failure to establish their claims. The court allowed the second appeal, set aside the lower appellate court's judgment, and restored the trial court's judgment.
Issues: The court analyzed whether the alleged oral partition in 1959 was proved, whether the plaintiff was entitled to a ½ share in the suit property, and whether the first defendant's unilateral sale of the entire property was permissible.
Ratio Decidendi: The court held that the alleged oral partition in 1959 was not proved, and the plaintiff was entitled to a ½ share in the suit property. The court also found that the first defendant's unilateral sale of the entire property was impermissible. The court noted the defendants' inconsistent pleas and failure to establish their claims.
Final Decision: The court allowed the second appeal, set aside the lower appellate court's judgment, and restored the trial court's judgment.
1. Judgment and decree, dated 21.4.2005 and made in A.S.No.1 of 2005 on the file of the learned Principal Subordinate Judge, Gobichettipalayam, reversing the judgment and decree, dated 24.6.2002 and made in O.S.No.283 of 1995 on the file of the learned District Munsif, Sathyamangalam, have been challenged in this memorandum of second appeal.
2. The appellant is the plaintiff in the suit in O.S.No.283 of 1995, whereas the respondents 1 to 6 are the defendants 2 to 4, D1 and D5 and D6 in the suit, respectively.
3. The appellant/plaintiff is the younger brother of fourth respondent/D1. The third respondent/D4 is the wife of the fourth respondent/D1 and the respondents 5 and 6/D5 and D6 are the son and daughter of the respondents 3 and 4/D4 and D1.
4. The respondents 1 and 2/D2 and D3, though they are related to the third respondent Marammal, in so far as the family of the appellant/plaintiff and the fourth respondent/D1 is concerned, they are strangers. However, they claim exclusive right over the suit property saying that they have purchased the same through the Power of Attorney of the fourth respondent/D1 on 7.8.1995 for a valuable consideration.
5. D.W.2 is none other than the elder brother of the respondents 1 and 2/D2 and D3.
6. The appellant/plaintiff has filed the above suit for partition in respect of his ½ share in the suit property as well as for future mesne profits.
7. Originally the suit was filed as against the respondents 1 and 2 as well as the fourth respondent/D2, D3 and D1.
8. Since the respondents 1 and 2/D2 and D3 had taken a stand that the whereabouts of fourth respondent/D1 (their vendor) are not known for more than ten years and that unless and until the wife and the children of D1 are impleaded as the parties to the suit, the suit is not maintainable, the appellant/plaintiff had proceeded to amend the plaint and subsequently, the third respondent/D4 and the respondents 5 & 6/D5 and D6 were impleaded as the defendants 4 to 6 in the suit. The respondents 1 and 2/D2 and D3 alone had contested the suit as the third respondent/D4 had simply adopted their written statement.
9. On appreciation of the evidences both oral and documentary, the trial Court had passed a preliminary decree on 24.6.2002 in favour of the appellant/plaintiff.
10. Challenging the correctness of the judgment and decree, the respondents 1 to 3/D2 to D4 have preferred an appeal in A.S.No.1 of 2005 on the file of the learned Principal Subordinate Judge, Gobichettipalayam.
11. After hearing both sides and on appreciation of the evidences, the lower appellate court has allowed the appeal on 21.4.2005 reversing the judgment and decree of the trial Court and subsequently, the suit was dismissed.
12. Having been aggrieved by the impugned judgment, dated 21.4.2005 and made in A.S.No.1 of 2005, the appellant, being the plaintiff in the suit, has filed this second appeal.
13. The second appeal came to be admitted on the following substantial questions of law:-
a. Whether the lower appellate court is correct in holding there was an oral partition in 1959 and the suit property was allotted to the first defendant and the house situate in Nalroad was allotted to the plaintiffs without considering the fact that the house site was allotted to the plaintiff only in 1975 under Ex.A.17?
b. Whether the lower Appellate Court is correct in believing the oral partition in the absence of examining the witnesses who were participated in the partition?
14. It is obvious to note here that both the substantial questions of law are overlapping with each other and therefore, they can be answered in single Unit based on Ex.A.17 and the evidence of P.W.1 as well as D.W.4, however, it requires a well-considered reasoning. Conspectus of facts:-
15. For the sake of convenience and easy reference the appellant may hereinafter be referred to as the plaintiff, whereas the respondents be referred to as the defendants in accordance with their rank in the suit
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