Back
IN THE HIGH COURT OF MADRAS
G.Rajasuria J
Ponnusamy v. Muthu Gounder and others,
S.A.No.153 of 2009 dated 13.3.2009
Ratios:
a. Concept of oral partition is recognized and it is valid.
b. After oral partition, there cannot be further partition of the same property.
c. There can an oral temporary arrangement till regular partition.
Headnote:(A) Hindu law-Partition-Oral partition-Plaintiff filed suit for partition-Defendants contested it-Defendant pleaded oral partition and his construction of a hut in his allotted portion-Did not plead separate share to him-Trial Court ordered preliminary decree favouring plaintiff-1st defendant appealed praying for one third share-Appeal dismissed-Second appeal by him-Contended that one third share should have been allotted to him-Held-Appellant, in his statement, did not pray for allotment of his share and never paid court fees-Oral partition differs from oral temporary arrangement-Without pleadings relief cannot be given-Appeal dismissed.
(B) Hindu law-Oral partition-Oral temporary arrangement-Oral partition is recognized-After oral partition, there cannot be further partition-It differs from oral temporary arrangement.
The concept oral partition is recognised under law. Once there is an oral partition, the question of again partitioning the property would not arise. However, at this juncture, I would like to clarify that oral temporary arrangement till regular partition is entirely a different concept in Hindu Law. Para 7
(C) Hindu law-Partition-Improvements made by co-sharer-Benefit goes to all.
Improvement made by one co-sharer in the joint property would enure to the benefit of all. Para 8
2. The plaintiff filed the suit for partition seeking the following reliefs:
"a) directing the division of suit property into 3 equal shares with reference to good and bad soil by metes and bounds, to allot one such a share to the plaintiff either by appointing a commissioner or otherwise;
b) putting plaintiff in separate possession of his 1/3rd share so to be allotted vide Ref. Col. No.(a) above;
c) awarding the costs of the suit; and
d) granting plaintiff such other and further suitable reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice."
The defendants entered appearance and filed the counter. The trial Court ultimately passed the preliminary decree allotting one-third share in favour of the plaintiff and the finding of the trial Court was to the effect that another one-third share could be allotted to D2 and yet another one-third share in favour of D3 to D6, representing the share of deceased Thandava Gounder. The first defendant filed appeal expressing his grievance that the trial Court failed to allot the portion under his possession towards his one-third share. The appellate Court dismissed the appeal. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal has been preferred on various grounds and also by suggesting the following substantial question of law:
"Whether the judgments of the Courts below are vitiated in that they have not given suitable directions when passing the preliminary decree for adjusting equities as per admitted possession of parties?"
3. Despite printing the names concerned, none appeared.
4. A plain poring over and perusal of the typed set of papers including the judgments of both the Courts below would demonstrate and display that the findings of both the Courts below are that the suit property has to be partitioned. However, the trial Court in paragraph 12 of its judgment without any evidentiary and legal basis observed as under:
",e;j tHf;fpy; jhth brhj;jpid thjp. 1k; gpujpthjp kw;Wk; 2 Kjy; 6 gpujpthjpfs; tha;bkhHpahf vt;thW mDgtpj;J tUfpwhh;fnsh mnj epiyapy; mth;fs; ghfk; gphpj;Jf;bfhs;s ntz;Lk; vd Kot[ bra;ag;gLfpwJ/ nkYk; mtuth;fs; tPL fl;o mDgtpj;J tUk; ghfj;ij mtuth;fSf;F xJf;fPL bra;antz;Lk; vdt[k; nkYk; thjpf;F 1-3 ghfk; fpilf;fj;jf;fJ vd Kot[ bra;ag;gl;L thjpf;F Mjuthf Kjy;epiyj; jPh;g;ghiz tH';fyhk; vd Kot[ bra;ag;gLfpwJ/"
Nevertheless, in the preliminary decree of the lower Court, only one-third share was allotted in favour of the plaintiff. En passant, I would like to observe that in the written statement filed by D1, ultimately he prayed only for dismissal of the suit and there is no indication that he paid any Court fee for allotment of his share.
5. Pithily and precisely, tersely and briefly, the written statement of D1 is to the effect that based on oral partition he has been in possession of a portion of the suit property by raising a hut. D1 has not filed any suit for enforcement of the oral partition and even in the written statement, there is no prayer for enforcement of the alleged oral partition and for allotment of the portion which is within his occupation, including the hut which he alleged to have constructed towards his 1/3 share.
6. It is a trite proposition of law that any amount of evidence without pleadings should be eschewed. The first appellate Court correctly observed in its judgment at paragraph 12 that absolutely there was no iota or shred, shard or miniscule, molecular or
