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MADRAS HIGH COURT
R. Subramanian, J.
Prema Suryanarayanan and Anr. —Plaintiffs
versus
S. Venkataraman and Ors. —Defendants
C.S. No.104 of 2007
Decided on 21.3.2018
Counsel for the Parties:
For the Plaintiffs:Mr. Ragul Balaji for M/s. Satish Parasaran, Advocate
For the Defendant No.1:Mr. Yashodhavardhan, Senior Counsel for Mr. P. Sesubalan Raja, Advocate
For the Defendant Nos.3 and 4:Mr. P.B. Balaji, Advocate
IMPORTANT POINT
A partition can be oral and it could be unequal also but when a release is claimed it has to be by way of a registered instrument.
Headnote:Partition Suit—Daughters-plaintiffs claimed partition in suit property left by their father who died intestate—Defendants, brothers contested suit on plea that an oral partition of properties took place during life time of their father where in two brothers, defendants were given ownership right in suit property—Defendant who pleaded oral partition was to establish the same when facts that suit property was self parties would legally be entitled to in the intestacy of their father were undisputed—Defendant claimed that plaintiff sisters had agreed to give up their share in suit property—Such giving up of share would amount to a release of right in immovable property which could only be by registered instrument—Defendant also pleaded ouster of plaintiffs since 35 years but to prove ouster there must be concrete evidence to show that sharers who claimed ouster had excluded other sharers by positive assertion of title—Twin pleas of prior partition and ouster could not go together—Plaintiffs were entitled to partition and separate possession of their share in suit property.
Held: Of course, a partition can be oral, but, a party pleading oral partition has to establish the same by producing convincing evidence. A careful examination of the evidence on record in the case on hand would show that except the Exs.P1 and D3 there is no other evidence to show that there was an oral partition and the properties were divided in a particular manner in the said oral partition. The claim of the 1st defendant is that the sisters had agreed to give up their shares in the suit property. Such giving up would amount to a release of right in immovable property which has to be by way of a registered instrument. A partition can be oral and it could be unequal also but when a release is claimed it has to be by way of a registered instrument. No such registered instrument has been produced and it is not the case of the 1st defendant that the sisters had in fact executed a registered instrument relinquishing their rights over the properties.
The 1st defendant had also pleaded that pursuant to the said oral partition, he and the 2nd defendant had been in possession of the property for nearly 35 years as absolute owners and therefore, the plaintiffs are ousted from enjoyment of the property and hence, they cannot claim any share in the property at this distant point of time. In order to prove ouster there must be concrete evidence to show that the sharer who claims ouster had excluded the other sharers by positive assertion of title. In the case on hand such a positive assertion of title to the knowledge and detriment of the other shares is totally absent.
The 1st defendant had actually pleaded an alternative case of ouster. He rested his case on the twin pleas of the prior partition as well as ouster. He should have elected any one of them at the trial since these two pleas are mutually exclusive. From the evidence on record, I am unable to find such election having been made by the 1st defendant. He had chosen to ride on both the horses viz., an assertion of title as per the oral partition as well as on the ground of the ouster. Even assuming that the plea of ouster can be taken as an alternative plea, very strong evidence is required to show actual ouster. (Paras 24, 26 and 27)
Result: Suit decreed.
R. Subramanian, J.—The plaintiffs who were the daughters of one Sambasivam who died intestate on 05.11.1971 have come forward with the present suit seeking partition and separate possession of their 2/5th [1/5th each] share in the suit property.
The brief averments in the plaint are as follows:-
2. The suit property belonged to one Sambasivam, the father of the plaintiffs, defendants 1 and 2, father-in-law of the 3rd defendant and grandfather of the 4th defendant. The said Sambasivam died intestate on 05.11.1971 leaving behind his wife Jayalakshmi, three daughters viz., Prema - 1st plaintiff, Meenakshi - 2nd plaintiff, Subbalakshmi who died in 1990 and two sons viz., Venkataraman - 1st defendant and Rajaraman - 2nd defendant. According to the plaintiffs, Jayalakshmi W/o. Sambasivam died intestate in 1998. Therefore, according to the plaintiffs, the plaintiffs and the defendants 1 and 2 would each be entitled to 1/5th share and the remaining 1/5th share of Subbalakshmi would devolve on the defendants 3 and 4 being her husband and only son. On the above averments the plaintiffs seek a preliminary decree for partition of the suit properties. It is also claimed that the 1st defendant being the eldest son is in possession of the properties.
3. The 1st defendant filed a written statement resisting the suit contending that there was an oral partition between the parties in 1993 and according to the said oral partition, the suit property which is the only immovable property left behind by late Sambasivam was agreed to be taken by the two sons. It is also claimed by him that Sambasivam when he died was carrying on business as railway contractor and he had left lot of contract works incomplete. Therefore, the 1st defendant being the eldest son had to give up his studies to take over the business.
4. It is also claimed that the 1st defendant had sold the property which stood in his name in order to carry on the business and complete the contract works. The 1st defendant was about 23 years old at the time when his father Sambasivam died, the 2nd defendant was 21 years old and the 2nd plaintiff was about 15 years old. It was the 1st defendant who had carried on the business and performed the marriage of 2nd plaintiff out of the funds.
5. It is also claimed that the 1st defendant had filed O.P.No.8 of 1972 before this Court seeking letters of administration. While granting letters of administration, the assets of Sambasivam including the property subject matter of the present suit were valued and the 1st defendant was directed to deposit a sum of Rs.16,532/- being 1/6th share of minor Meenakshi, the 2nd plaintiff into the Court. The said amount was deposited on 30.03.1972 and subsequently the same was kept in fixed deposit in Indian Overseas Bank, T.Nagar Branch. Upon attaining majority, it is claimed that, the 2nd plaintiff withdrew the said amount after obtaining permission of the Court. Thus, according to the 1st defendant, the 2nd plaintiff had obtained her due share in the properties left by Sambasivam as early as in the year 1972 and hence, she is not entitled to any share in the suit properties.
6. The 1st defendant would also claim that he had purchased the property at Balaji Avenue at T.Nagar in the year 1969 and also put up a building in 2000 sq.ft in the said land. The said property was sold on 04.11.1976 for a consideration of Rs.90,000/- and the funds were used for discharging the debts of Sambasivam and for performance of the marriage of the 2nd defendant in the year 1978. Therefore, according to the 1st defendant, the oral arrangement in the year 1993 was entered into taking into account all the circumstances including the sale of the property belonging to the 1st defendant. As per the said oral arrangement, the plaintiffs as well as the other sister Subbalakshmi had agreed not to claim any share in the suit property.
7. It is also contended that the 1st and 2nd defendants have been in possession of the property excl
