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2019 Supreme(Mad) 1686
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. Ravindran, J.
Amsaveni - Appellant
Versus
Viswanathan - Respondent
S.A. No. 28 of 2016 & C.M.P. No. 871 of 2016
Decided On : 26-07-2019
For the Appellant : J. Hariharan, M/s. V. Nicholas, Advs.
For the Respondent: D. Shivakumaran, Adv.
Headnote:
Civil Procedure Code - Section 100 - share in the suit properties - For the sake of convenience - challenge is made to the judgment - trial court - case of the plaintiff in brief is that the plaintiff is the daughter and the second defendant is the son of the first defendant and the plaintiff was married to one Rajaram in the year 1987 and they had two children and the plaintiffs husband began to ill-treat the plaintiff and therefore the plaintiff had left the company of her husband six years ago and came to her parents house along with the male child and subsequently the male child had been taken away by the plaintiffs husband and the plaintiff was provided separate residence by the defendants and accordingly the plaintiff was also enjoying the suit properties as the joint family member of the defendants and the suit properties are the joint family properties of the plaintiff and the defendants and accordingly – Held, It is seen that the plaintiff prior to the institution of the suit had issued a pre-suit notice claiming partition. Nodoubt the same had not been repudiated by the defendants. But considering the facts and circumstances of the case in toto, it is seen that as determined by the first appellate court, the non-issuance of the reply to the presuit notice issued by the plaintiff, would not mount to- cannot be held to be the admission on the part of the defendants i.e., that the plaintiff is entitled to claim share in the suit properties as putforth by her - Considering the import of the partition deed Ex.B1 and the settlement deeds marked as Exs.B2 and B4 in toto, it is found that the second defendant is the absolute owner of the item Nos.3,4,6,7 and 8 of the plaint schedule properties on the strength of the documents marked as Exs.B1 and B2 and the absolute owner of the item (2) of the plaint schedule properties on the strength of Ex.B4 deed. Furthermore, as determined by the first appellate court, the second defendant had failed to establish that the schedule II and III of the plaint schedule properties had been allotted in his favour and therefore it is seen that with reference to the abovesaid items and as the first defendant had admitted that item 1 had been allotted in favour of the plaintiff, accordingly it is seen that the first appellate court had held that the plaintiff being not the coparcener, at the most, would be entitled to claim only the share due to her as the legal heir of her father and accordingly the first appellate court had determined that the plaintiff is entitled to obtain only item 1 and ¼ share in item No.5, II and III of the plaint schedule properties and accordingly disposed of the second appeal - In the light of the above position of law as outlined in the abovesaid decision of the Apex Court, considering the factum that the plaintiff having failed to object to the admissibility of the abovesaid documents, it is seen that the plaintiff cannot at a later point of time challenge the same on the footing that they are only secondary evidence and that the second defendant had failed to place the original documents for consideration – appeal dismissed
JUDGMENT :
Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated of the Principal District Judge of Krishnagiri, dated 11.09.2009 in A.S.No.18 of 2008 reversing the judgment and decree of the Principal Subordinate Judge of Krishnagiri, dated 11.08.2008 in O.S.No.32 of 2000.
1. In this Second Appeal, challenge is made to the judgment and decree dated 11.09.2009 passed in A.S.No.18 of 2008 on the file of the Principal District Court, Krishnagiri, partly modifying the judgment and decree dated 11.08.2008 passed in O.S.No.32 of 2000 on the file of the Principal Subordinate Court, Krishnagiri.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for partition, possession and mense profits.
4. The case of the plaintiff in brief is that the plaintiff is the daughter and the second defendant is the son of the first defendant and the plaintiff was married to one Rajaram in the year 1987 and they had two children and the plaintiff's husband began to ill-treat the plaintiff and therefore the plaintiff had left the company of her husband six years ago and came to her parents house along with the male child and subsequently the male child had been taken away by the plaintiff's husband and the plaintiff was provided separate residence by the defendants and accordingly the plaintiff was also enjoying the suit properties as the joint family member of the defendants and the suit properties are the joint family properties of the plaintiff and the defendants and accordingly, the plaintiff is entitled to obtain her share in the suit properties and further according to the plaintiff, during the pendency of the suit, the first defendant had died and the plaintiff and the second defendant alone are his legal heirs and the wife of the first defendant had already predeceased him and hence according to the plaintiff, she is entitled to obtain half share in the suit properties and hence the suit.
5. The defendants resisted the plaintiff's suit contending that the plaintiff was married to one Rajaram in the year 1987 and they were living separately in Krishnagiri. Out of their wedlock, they got two children. Though it had been admitted by them that the plaintiff is residing in the suit properties, however contended that the plaintiff was not enjoying the suit properties along with the defendants as a member of the joint family and further according to the defendants, the suit properties are not the joint family properties of the plaintiff and the defendants and according to the defendants, at the time of marriage of the plaintiff with Rajaram, she had been given 60 cents of land with 10 coconut trees, a mangalore tiled house, 15 sovereign jewels and sum of Rs.25,000/- towards her share and now with ulterior motive, the plaintiff and her husband are making false claim over the suit properties and had come forward with the suit and therefore the suit laid by the plaintiff is liable to be dismissed.
6. In the additional written statement, the second defendant putforth the case that except item 2, all other suit properties are the joint family properties of the second defendant and the first defendant and the plaintiff is not a member of the joint family and the plaintiff having married in the year 1987, she ceases to be a member of the joint family as well as not entitled to claim any share in the suit properties and further according to the second defendant, there was a partition between him and the first defendant by way of a registered partition deed dated 05.06.1995 and as per the same, the suit item 6 land S.No.124/3 dry 0.61 acres 0.24.5 hectares and the suit item 7 land S.No.177/1 dry 1.49 acres or 0.60.0 hectares were allotted to the share of the first defendant and the second defendant was allotted the suit item 3 land S.No.123/2 wet 1.18 acres or 0.46.5 hectares suit item 4 land S.No.124.2B wet 0.70 acres or 0.28.0 hectares and suit item 8 land S.No.178/3A d
