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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Ramasamy – Appellant
Versus
Kumar @ Saravanan & Others – Respondent
S.A. No. 1158 of 2008 & M.P. No. 1 of 2008
Decided On : 11-02-2021
PARTITION - SUBJECT - JOINT FAMILY PROPERTIES - ACT SECTION LIST - Hindu Marriage Act, 1955 (25 of 1955), Section 16 - Evidence Act, 1872 (1 of 1872), Sections 101 to 103 & 114 - SUMMARY - The plaintiffs filed a suit for partition and mesne profits. The first defendant resisted the plaintiffs' suit contending that the plaint schedule properties are not the joint family properties of Kuppusamy Gounder, the plaintiffs and the defendants and also false to state that the plaintiffs are the sons of Kuppusamy Gounder. The courts below were pleased to declare that the plaintiffs are entitled to 3/8 share in the suit properties and directed them to take a separate proceeding for mesne profits under Order 20 Rule 12 CPC. Aggrieved over the judgment and decree of the courts below, the second appeal has been preferred by the first defendant. The substantial questions of law formulated for consideration were: 1) Whether the courts below are correct in law in believing Ex.A71 especially in the light of Ex.B2 and more particularly when the courts below themselves admit that there is the evidence to show the dissolution of marriage between Raju Gounder and Vanamayil? 2) Whether the courts below are right in passing a preliminary decree in favour of respondents 1 to 3 especially when they had failed to discharge the burden of proving the marriage between Kuppusamy and Vanamayil in the manner known to law? 3) Whether the courts below are right in solely relying of Ex.A71 a unregistered document in the nature of a letter to hold that the marriage between Raju Gounder and Vanamayil was dissolved especially when the respondents 1 to 3 had failed to discharge the burden of proving the prevalance of custom or practice of such divorce amongst their community? 4) Is not the presumption of the death of Kuppusamy Gounder by the courts below contrary to the provisions of Section 108 of the Evidence Act? The court held that the plaintiffs are entitled to 3/8 share in the suit properties and directed them to take a separate proceeding for mesne profits under Order 20 Rule 12 CPC.
Fact of the Case:
The plaintiffs filed a suit for partition and mesne profits. The first defendant resisted the plaintiffs' suit contending that the plaint schedule properties are not the joint family properties of Kuppusamy Gounder, the plaintiffs and the defendants and also false to state that the plaintiffs are the sons of Kuppusamy Gounder.
Finding of the Court:
The courts below were pleased to declare that the plaintiffs are entitled to 3/8 share in the suit properties and directed them to take a separate proceeding for mesne profits under Order 20 Rule 12 CPC.
Issues: 1) Whether the courts below are correct in law in believing Ex.A71 especially in the light of Ex.B2 and more particularly when the courts below themselves admit that there is the evidence to show the dissolution of marriage between Raju Gounder and Vanamayil? 2) Whether the courts below are right in passing a preliminary decree in favour of respondents 1 to 3 especially when they had failed to discharge the burden of proving the marriage between Kuppusamy and Vanamayil in the manner known to law? 3) Whether the courts below are right in solely relying of Ex.A71 a unregistered document in the nature of a letter to hold that the marriage between Raju Gounder and Vanamayil was dissolved especially when the respondents 1 to 3 had failed to discharge the burden of proving the prevalance of custom or practice of such divorce amongst their community? 4) Is not the presumption of the death of Kuppusamy Gounder by the courts below contrary to the provisions of Section 108 of the Evidence Act?
Ratio Decidendi: The court held that the plaintiffs are entitled to 3/8 share in the suit properties and directed them to take a separate proceeding for mesne profits under Order 20 Rule 12 CPC.
Final Decision: The substantial questions of law formulated for consideration were answered in favour of the plaintiffs and against the defendants. Resultantly, the second appeal was dismissed with costs.
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the judgment and decree of the District Judge's court at Tiruvannamalai dated 15.02.2008 in A.S. No.43 of 2006, confirming the judgment and decree of the Principal Subordinate Judge's Court at Tiruvannamalai dated 16.10.2006 in O.S.No.396 of 2001).
1. Challenge in this second appeal is made to the judgment and decree dated 15.02.2008 passed in A.S. No.43 of 2006 on the file of the District court, Tiruvannamalai, confirming the judgment and decree dated 16.10.2006 passed O.S.No.396 of 2001 on the file of the Principal Subordinate Court, Tiruvannamalai.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. The first defendant in O.S. No.396 of 2001 is the appellant in this second appeal.
4. Suit for partition and mesne profits.
5. The case of the plaintiffs as per the amended plaint, in brief, is that the plaint schedule properties are the joint family properties of Kuppusamy Gounder, the plaintiffs and the defendants and Kuppusamy Gounder inherited about 4 acres of land from his father Muthu Gounder and out of the income from the ancestral lands, he had purchased the remaining properties in his name as the manager of the joint family and all the suit properties are treated as the joint family properties of the plaintiffs and the defendants. Kuppusamy Gounder married the defendants' mother Poongole Ammal and begot the defendants and Poongole Ammal died in or about 1968. Thereafter, in the year 1971, Kuppusamy Gounder married the plaintiffs' mother Vanamayil at Tanipadi village according to Hindu Rites and customs. Out of the said lawful wedlock, the plaintiffs are born to Kuppusamy Gounder and Vanamayil and the plaintiffs' mother died about 12 years back. The daughters of Kuppusamy Gounder were married prior to 1975. Before marrying Kuppusamy Gounder, the plaintiffs' mother Vanamayil married one Raju Gounder and their marriage was dissolved as per the caste and custom in the panchayat during January 1971 and the said dissolution of marriage is evidenced by the dissolution letter executed by Raju Gounder on 27.01.1971 and the same had been attested by the panchayatars and hence the marriage between Kuppusamy Gounder and the plaintiffs' mother is valid and legal one. The first plaintiff is called Saravanan, the second plaintiff is called Suburayan and the third plaintiff is called Viswanathan. However, for the reasons best known to the plaintiffs' father, their names have been changed as Kumar, Arul and Murugayyan. The plaintiffs' father Kuppusamy Gounder became unseen and his whereabouts are not known for the past two years. There was a family arrangement between the plaintiffs and the defendants about four years back in the presence of Kuppusamy Gounder and the plaintiffs and their father Kuppusamy Gounder were residing in the house constructed by the father in Item No.22 of the suit properties and 3/4 share of the lands and the defendant is in the possession of ancestral house in Item No.23 of the suit properties and 1/4 share of the lands. It was agreed that a full pledged partition deed has to be entered into between the plaintiffs and the defendants. As per the family arrangement, the plaintiffs are tentatively in the possession of 3/4 share of the lands and the defendants are in the possession of 1/4 share of the lands. The plaintiffs got employment at Hosur and taking advantage of their absence, the defendants, with the help of the sister's husband attempted to take the forcible possession of the entire lands and prevented the plaintiffs from raising the crops and hence, the plaintiffs are constrained to issue a notice to the first defendant on 20.06.2001 and the first defendant failed to send any reply despite the receipt of notice. The first defendant had taken the possession of the entire lands during July 2001. Further according to the plaintiffs since the whereabouts of their father is not known
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