Sundaravadanam v. Saroja Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 06.07.2023 Pronounced on : 05.09.2023 CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

AND THE HONOURABLE MRS.JUSTICE R.KALAIMATHI C.M.P.No.3738 of 2019 Cross Objection No.46 of 2019 Sundaravadanam ... Appellant / 1st Defendant Versus

1.Saroja Ammal

2.Vijaya

3.Suguna

4.Sivakami ... Plaintiffs / Respondents 1 to 4

5.Sekar

6.Thangathurai ... Defendants 2 & 3/Respondents 5 & 6 PRAYER in

: Appeal is filed under Section 96 of C.P.C., against the judgment and degree dated 20.09.2018 in O.S.No.104 of 2013 on the file of the Principal District Court, Villupuram. For Appellant : Mrs.Hema Sampath, Senior Counsel for Mrs.R.Meenal

For Respondents : Mr.N.Suresh [R2 to R4] For R1, R5 and R6 : No Appearance. Cross Obj.No.46 of 2019 :

1.Saroja Ammal

2.Vijaya

3.Suguna

4.Sivakami ... Cross Objectors / Plaintiffs 1 to 4 Versus

1.Sundaravadanam

2.Sekar

3.Thangathurai ... Respondents / Defendants No.1 to 3 PRAYER in

Cross Obj.No.46 of 2019

: Cross Objection is filed under Order 41 Rule 23 read with Rule 33 of Civil ProcedureCode, against the findings of the learned Principal District Judge, Villupuram in para 20 of the Judgment in O.S.No.104 of 2013 dated 20.09.2018. For Cross Objectors: Mr.N.Suresh

For 1st Respondent : Mrs.Hema Sampath, Senior Counsel for Mrs.R.Meenal For R2 & R3 : No Appearance.

COMMON JUDGMENT (Judgment was delivered by R.KALAIMATHI, J.,) Aggrieved by the judgment and decree passed in O.S.No.104 of 2013 dated 20.09.2018 on the file of the Principal District Court, Villupuram, the eldest son of one Palanimalai Chettiar namely P.Sundaravadanam has preferred this appeal against the plaintiffs herein namely his mother (Tmt.Saroja Ammal) and three sisters (Tmt.Vijaya, Tmt.Suguna and Tmt.Sivakami) and his other two brothers Sekar and Thangathurai.

¶2The wife and three daughters of Thiru.Palani Malai Chettiar have preferred cross objection vide Cross Obj.No.46 of 2019. In fact, they filed a suit for partition claiming 1/7 share each, for rendition of accounts and for mesne profits.

¶3According to the plaintiffs, originally Palanimalai Chettiar, husband of the 1st plaintiff, the father of the plaintiffs 2 to 4 and defendants No.1 to 3 purchased the suit properties by way of registered sale deed dated 05.01.1981. He along with his children sold 0.07 cents of lands out of 0.58 cents and the remaining extent is shown as suit property. Palanimalai Chettiar constructed 14 shops towards the western and southern side of the suit property by borrowing loan from the State Bank of India, Manalurpettai Branch and let out for rents. Till his life time, he was remitting the loan by receiving rents. Thiru.Palanimalai Chettiar died intestate on 13.06.2008. The 1st and 3rd defendants are in possession and enjoyment of some of the shops by receiving the rents. The plaintiffs being class-1 legal heir of Thiru.Palanimalai Chettiar, have every right to claim 1/7 share each in the suit property. On oral demand and despite the legal notice issued to the defendants, as no steps towards effecting partition was taken, suit was laid for the relief of partition of 1/7 share for each plaintiff.

¶4Contending contra, the 1st defendant Sundaravadanam contends that during his father's old age, as his father was not in a position to manage the affairs of family, his father along with the 1st defendant by obtaining loan of Rs.5,00,000/- from State Bank of India, Manalurpetai Branch and Rs.2,00,000/- from third persons had constructed 14 shops in the suit properties. He would further claim that the 3rd defendant Thangathurai for his family expenses for his business purpose and to pay off his debts, demanded his share. On his demand, an extent of 4124 ½ sq.ft., of vacant plot situated at Angala Parameswari Amman Koil street was allotted to him and he sold it to one Ramesh S/o.Seethapathy Chettiar. As the purchaser demanded all the sharers to sign in the sale deed. He has also explained about the family transactions.

¶5At trial, the 2nd plaintiff Tmt.Vijaya, the 3rd plaintiff Tmt.Suguna and one John Kennady have been examined as PW1 to PW3. Exs.A1 to A23 have been marked. On the side of defendants, appellant/1st defendant Sundaravadanam has been examined as DW1 and Exs.B1 to B17 have been marked.

¶6Originally suit for partition was filed by the wife and 3 daughters of Palanimalai Chettiar for the relief of partition in O.S.No.104 of 2013 on the file of Principal District Court, Villupuram, by showing the properties of Palanimalai Chettiar inclusive of the sold properties and it was dismissed. Against which an appeal was preferred in A.S.No.396 of 2016 and it was disposed of by this Court on 15.09.2016, by directing the plaintiffs to amend the suit schedule properties and directed the trial Court to dispose of the suit in a time frame. Consequent upon the said judgment of this Court, after trial, suit was decreed, granting 1/7 share to each plaintiff.

¶7The following issues were framed by the trial Court:

¶1jhth brhj;Jf;fspy; thjpfSf;F jyh 1/7 ghfk; Fwpj;j Kjy;epiy jPh;g;ghiz thjpfSf;F fpilf;fjf;fjh?

¶21 k; gpujpthjp tN:y; bra;j thliff;F chpa fzf;Ffis xg;gilj;J mjpYk; thjpfSf;Fhpa 4/7 ghfj;ij thjpfSf;F gphpj;Jf; bfhLf;f flikg;gl;ltuh?

¶3thjpfs; nfhhpa[s;s kfN:y; ec&;l ghpfhuk; thjpfSf;F fpilf;fj;jf;fjh?

¶4jhth brhj;Jf;fs; bghWj;J 2000k; tUlj;jpy; gHdpkiy brl;oahh; kw;Wk; 1 Kjy; 3 gpujpthjpfSf;fpilna tha;bkhHp ghfk; Vw;gl;L gpd;dh; xU Th;rPl;L Vw;gLj;jpf;bfhz;ljhf TWk; gpujpthjp Tw;W cz;ikahdjh?

¶5gHdpkiy brl;oahUk; 1 Kjy; 3 gpujpthjpfSk; tha;bkhHp ghfg;gphptpid K:yk; fpilj;j brhj;Jf;fis mtuth;fs; mDgtpj;J te;jjhf TWk; Tw;W cz;ikahdjh?

¶6gHdpkiy brl;oahUk; 1k; gpujpthjpa[k; t';fp kw;Wk; 3k; egh;fsplkpUe;J fld; bgw;W jhth brhj;Jf;fspy; cs;s filfis fl;oajhf TWk; gpujpthjpapd; Tw;W cz;ikahdjh?

¶71k; gpujpthjp jhf;fy; bra;Js;s vjpUiuapy; Fwpg;gplg;gl;Ls;s fld;fs; cz;ikahdjh? mJ thjpfis fl;LgLj;Jkh?

¶8,j;jhth rhpahf kjpg;gPL bra;ag;gl;L ePjpkd;wf; fl;lzk; brYj;jg;gl;Ls;sjh?

¶9thjpfSf;F fpilf;f jf;f ,ju ghpfhu';fs; vd;d?

¶8The learned Senior Counsel Tmt.Hema Sampath, appearing for the appellant would strenuously argue that the suit properties were originally owned by one Dhanam Ammal and they were purchased by Thiru.Palanimalai Chettiar through a registered sale deed dated

05.01.1981 and he obtained patta vide Patta No.399 and had been in possession and enjoyment of the suit property. There was an oral partition. Thiru.Palanimalai Chettiar and his sons defendants 1 to 3 herein had partitioned through koorchit in the year 2000.

¶9It is her argument that in the oral partition, the properties allotted to Palanimalai Chettiar are as follows:

i) S.No.64/4

0.39 cents

ii) S.No.69/5

0.35 cents

iii) S.No.70/1

0.07 cents out of 0.58 cents.

¶10The Properties allotted to 1st defendant P.Sundaravadanam in Siddhapattinam Village, in Natham S.No.69, out of Acre 15.78 cents measuring 27 feet (east – west), 90 feet (north-south), with country tiled house measuring 27 X 30 feet. The properties allotted to the 2nd defendant – namely Sekar in Siddhapattinam Village in Natham S.No.69, out of Acre 15.78 cents, a vacant plot for an extent of 0.14 cents to the north of Mariamman Temple. The properties allotted to the 3rd defendant namely P.Thangathurai in dry S.No.70/1, out of 0.58 cents, a vacant plot measuring 31 feet (east-west) X 132 feet (north-south).

¶11It was further contended that Palanimalai Chettiar sold 0.07 cents out of 0.58 cents in order to repay the debt of 3rd defendant Thangathurai to one Elumalai. The 3rd defendant sold his share of vacant plot to one Sivakumar on 20.03.2000. Thereafter, on various dates, Palanimalai Chettiar sold vacant plots to various persons. In S.No.69/4 and S.No.69/5 in the plot measuring 0.11 cents, Palanimalai Chettiar along with the 1st defendant Sundaravadanam by obtaining a loan of Rs.5,00,000/- from State Bank of India, Manalurpettai Branch and by getting loan of Rs.2,00,000/- from third person, constructed 13 shops. Palanimalai Chettiar had been residing with his wife and Thangathurai(D3) as one family. Some of the shops were let out by Palanimalai Chettiar by receiving advance amounts and rents. It was further claimed that after the death of Palanimalai Chettiar, till the month of December 2009, the 3rd defendant Thangathurai has also let out some of the shops and he had been receiving advance and rent. She would stress upon the fact that it was only the 1st defendant namely the appellant herein administering some of the suit properties and hence prayed for dismissal of the suit.

¶12Per contra, the learned counsel appearing for the respondents 2 to 4 (3 daughters) of Palanimalai Chettiar, Thiru.N.Suresh would vehemently contend that their father purchased the suit property by way of sale deed dated 05.01.1981 from one Dhanam Ammal vagaiyara. He had disposed off 0.07 cents to a third person, the remaining extent is shown as suit property. It is the further case of the above said respondents that on the west and south side of the suit property, 14 shops were constructed and named as Kamadhenu Complex and let out for rent by Palanimalai Chettiar by obtaining loan from State Bank of India, Manalurpettai Branch, and he was receiving the rents and repaying the debt till his death(13.06.2008). It is his further argument that the rear side shop No.11 was demolished and in the rear side of shop Nos.10 and 11, a godown measuring 60 X 30 feet has been constructed by spending an amount of Rs.45,000/- by the 1st defendant. It was further contended that among 7 shops which are situate at the southern side and 3 shops situate at the eastern side, the 1st plaintiff has been living there and let out 3 Shops for a rent of Rs.1,000/- for each shop and has been eking her livelihood. All the remaining 8 shops and the godown are let out by the 1st defendant and he receives Rs.12,000/- as rent every month. But, it was further claimed that the 1st defendant does not repay the loan which was availed for the construction of shops and debt amount to the tune of Rs.7,00,000/- remains to be paid. As the plaintiffs demanded for partition despite the issuance of notice to the defendant as the properties were not partitioned, suit was filed by mother and the three daughters.

¶13With regard to Exs.B7 to B10 pronotes as no creditor was examined by the 1st defendant they cannot be considered as true documents. The learned counsel would further submit that as the 1st defendant has been receiving rent from 10 shops, he alone is liable to repay the loan which was obtained from State bank of India, Manalurpettai Branch to the tune of Rs.14,000/-.

¶141st plaintiff, Tmt.Saroja Ammal is the wife of Palanimalai Chettiar. The plaintiffs 2 to 4 and the defendants 1 to 3 are the children of Palanimalai Chettiar. The suit properties are situate in 1) Siddhapattinam Village, Manalurpettai sub-division in New S.No.177/1, to an extent of 1600 sq.metre and 2) in New S.No.177/2 to an extent of 1400 sq.metre, totally measuring about 3000 sq.metres of plot and 14 shops were constructed thereon along with godown and house roofed with cement sheets with electricity connection at Door Nos.268, 268/1 to

11.

¶15Heard the arguments of learned Senior Counsel Tmt.Hema Sampath appearing for the appellant and Mr.N.Suresh, learned counsel appearing for the respondents 2 to 4 and perused the materials available on record.

¶16Based on the aforesaid submissions made by both sides, the following points arise for consideration:

i) Whether the trial Court was incorrect in granting 1/7 shares each to the plaintiffs.

ii) Has 3rd defendant Thangathurai to be excluded from granting any share in view of the sale by the 3rd defendant, after the death of his father, the undivided property of their father situate in Siddhapattinam Village - a vacant plot situate in Angala Parameswari Amman Koil street in S.No.69/5 out of 0.35 cents to an extent of 4124 ½ sq.ft., to one Ramesh, Points No.1 and 2:

¶17The suit was laid by the wife and three daughters of Palanimalai Chettiar for the relief of partition of 1/7 share to each plaintiff against her three sons. There are two items shown in the suit properties. Schedule of property details are as follows: brhj;Jtpguk; 1) tpGg;g[uk; hp/o/. kzY}h;ngl;il rg;/o/. rpj;jg;gl;odk; fpuhkk;. g[";ir rh;nt vz;/69/4 0/16/0 –

Vh;rpw;F g[J ej;jk; rh;nt vz;/177/1 1600 r/kPl;lhpy; –

gHdpkiy brl;oahh; fpiuak; bfhLj;j kidfSf;Fk; jpUtz;zhkiy nuhow;Fk; fpHf;F. gHdpkiyr; brl;oahh; fpiuak; bfhLj;j kidfSf;Fk; bgUkhs; nfhapy; bjUtpw;Fk; bjw;F. fPH;f;fz;l 2 tJ mapl;lj;jpw;Fk; nkw;F. m';fhsgunk!;thp tPjpf;Fk; tlf;F. ,jd; kj;jpapy; 1326 r/kPl;lh; kid/ 2) tpGg;g[uk; hp/o/ kzY}h;ngl;il rg;/o/. rpj;jg;gl;odk; fpuhkk;. g[";ir rh;nt vz;/69/5 0/14/0 –

A.S.No.96eofe2019 CrosseObj.No.46eeofe2019 Vh;rpw;F gJ[ ejj; k; rh;nt vz/;177/2 – 1400 r/kPll; UfF; 1 tJ mapll; jj; pw;Fk; fpHf;F. m'f; hs gunk!t; hp nfhtpy; tPjpfF; k; tlfF; . VGkiy kw;Wk; unkc&; fpiua kidf;Fk; nkw;F. bgUkhs; nfhapy; tPjpf;Fk.; gukrptk; tPlo; w;Fk; bjw;F. ,jd; kjj; papy; 1016/82 r/kP/ kida[k.; nkwg; o ,uz;L mapll; 'f; spYk; nrhe; J; nkwg; [wk; nuhl;il xlo; 7 filfSk.; bjdg; [wk; 7 filfSk.; Mf 14 filfSk.; tlgw[ k; css; 12. 13. 14 filfspd; gpdg; [wk; 30'exe20'emstpy; fll; gg; l;Lss; FnlhDk.; Mf ,itfs; Mh/;rp/rp/ bkj;ij flo; l'f; 'f; Sk; ,jpYss; kpd; ,izgg; f[ Sk.; 1 tJ filfF; fPHg; [wk; bj/t/19. fp/nk/35 mstpy; flo; as[ s; rpbkzl; ; c&Pl; nghll; tPLk.; ,jpy; css; kpd; ,izgg; [k.; Mf bkhjj; kjpgg; [ U/:63.00.000/-e MFk/; Foreeasyeunderstanding,etheegenealogyedetailseofeThiru.Palanimalaie Chettiareisegivenehereunder: ooooooooooPalanimalaioChettiaro ooooooooooodo oooSarojaoAmmal oooooooooooo(Diedoono13.06.2008)oooooo ooooooooP-1/R-1 oooo ------------------------------------------------------------------------------------------- ooooooo|o oooooo| oooooooooooo| oooooooooooooooo|oooooooooooooooooo|oooooooooooooo|ooooooooooooooooooooooooooo oVijayaooooSugunaoooooooSivakamiooooSundaraooooSekarooThangadurai vadanam P2/R2 P3/R3 P4/R4 D1/A D2/R5 D3/R6

¶18The suit property was originally purchased by Palani Malai Chettiar from one Dhanam Ammal Vagaiyara in 1981 and he was in possession and enjoyment of the said property by obtaining patta in Patta No.399 is not in dispute. After disposing a portion of the property by all the family members, the suit property remains undivided. It is also evident that already an oral partition had taken place between Palanimalai Chettiar and his three sons namely Sundaravadanam, Sekar and Thangathurai. Palanimalai Chettiar died intestate on 13.06.2008. But, without any arrangements, the sons of Palanimalai Chettiar have dealt with the property. This is quite evident from the detailed evidence of PW1 Smt.Vijaya and PW2-Suguna and DW1 – Sundaravadanam. During the life time of Palanimalai Chettiar and thereafter also there were very many land and money transactions have been made in the family. PW1 Tmt.Vijaya though she was given in marriage in the year 1986, her evidence in toto gives a clear picture about the money transactions and land transactions that had taken place in the family.

¶19It is the case of the plaintiffs that during the life time of Palanimalai Chettiar, he obtained loan for construction of shops in the suit property from State Bank of India, Manalurpettai Branch and an amount of Rs.7,00,000/- is due to the Bank. For which, the 1st defendant namely DW1 claimed that till the last breath of Palanimalai Chettiar, he was in possession and enjoyment of the shops by letting out the shops and was receiving the rents. After his death, a portion of suit property was converted as a house and it is being enjoyed by the 1st plaintiff Saroja Ammal and 3rd defendant Thangathurai. From the evidence of PW1, PW2 and DW1, it is evident that DW1 and his brother Thangathurai have been enjoying the suit properties. The 2nd defendant on receipt of summon neither appeared before the Trial Court nor chose to contest the suit and remains exparte. The 3rd defendant has submitted to decree before the trial Court.

¶20On the side of the plaintiffs, Ex.A4 to A8 namely Pronotes which are said to have been repaid by the said Palanimalai Chettiar to his son namely Sundaravadanam and they have been marked as Exs.A5 to A8. Ex.A4 Pronote is a pronote executed by Palanimalai Chettiar in favour of Tmt.Aadhilakshmi Ayyasamy and the other pronotes are executed by Palanimalai Chettiar in favour of his 1st son Sundaravadanam. These pronotes have been filed by the plaintiffs' side contending that Palanimalai Chettiar obtained loan from his son Sundaravadanam and he himself repaid the said loan amounts. With regard to Ex.A4, the connected party was not examined. It is the evidence of PW1 Tmt.Vijaya that her father obtained loan from Siddhapattinam Ayyasamy Gounder on 17.03.2005 for the purpose of constructing the shops and he executed a pronote-Ex.A4 in favour of Smt.Aadilakshmi Ayyasamy and it was repaid by him. On the contrary, DW1 states that the said amount along with the loan amount, he has repaid to the State Bank of India towards loan and the legal heirs are liable to pay the same. But, no counter claim is filed by the 1st defendant.

¶21The appellant herein claims that after the death of Palanimalai Chettiar, the 3rd defendant Thangathurai demanded for partition and in S.No.69/5 out of 0.35 cents, which is their father's undivided property, he got vacant plot-measuring 4124 ½ sq.ft., and sold the same. He would further claim that Thangathurai has sold the property through Ex.B6, more than what he would get as a share in the suit properties, besides, instigated his sister Vijaya to file the suit again to get 1/7 share in the suit property by endorsing that he has no objection to decree the suit as prayed for by the plaintiffs. The said details were affirmed by PW1 during her cross-examination which is extracted hereunder: ''vd; mg;gh ,we;j gpwF j';fJiu brhj;jpy; ghfk; gphpj;Jf; bfhLf;f nfl;lhh; vd;why; rhpjhd;/ mjdhy; r/vz;/69-5 y; 4124-1-2 rJuo ,lk; j';fJiuf;F bfhLf;fg;gl;lJ vd;why; rhpjhd;/ me;j brhj;ij kzY}h;ngl;ilia nrh;e;j rPj;jhgjp brl;oahh; Fkhuh; unkc&; vd;gtUf;F fpiuak; bfhLj;Jtpl;lhh; vd;why; rhpjhd;/ mij U:/17 yl;rj;jpw;F fpiuak; bfhLj;jhh;fsh vd;why; "hgfk; ,y;iy/ 13/10/2011y; v';fs; FLk;g cWg;gpdh;fs; midtUk; nrh;e;J xU fpiuak; bfhLj;Js;nshk; vd;why; rhpjhd;/ me;j fpiuag; gj;jpuk; gp/th/rh-M6/''

¶22On a perusal of Ex.B6, it is discernible that it was executed by all the legal representatives of Palanimalai Chettiar. It reads that : ''gHdpkiy brl;oahh; capUld; ,Uf;Fk;nghJ 05-03-1981-y;. gj;jpu vz;/639-81 bek;gh;go fpiuak; bgw;W mth; $Ptjpirf;Fg;gpwF v';fSf;nf chpikahfp v';fspy; 4 yf;fkpl;ltUf;F tha;bkhHp ghfkhf fpilj;j brhj;jpy; mDgtpj;J tUk; gFjpahfpa ,jdoapw;fz;l brhj;ij/ fpiua tptuk;: eh';fs; ehsJ njjpapy; j';fsplk; buhf;fk; bgw;Wf;bfhz;l U:/3.50.000/00-f;F Rj;j tpw;fpiuak; bra;J bfhLj;J mjd;nghpy; v';fspy; 4 yf;fkpl;lthpd; Flk;ghh;j;j brytpw;fhft[k;. tpahghu brytpw;fhft[k;. btz;zpiy fld;fis igry; bra;tjw;fhft[k; v';fspy; 4 yf;fkpl;lth; ehsJ njjpapy; j';fsplk; buhf;fk; bgw;Wf;bfhz;l U:/3.50.000/00 ,e;j U:gha; K:d;W yl;rj;J Ik;gjhapuKk;///''.

¶23It is pellucid that already oral partition took place between father and sons. After the death of Palanimalai Chettiar, the 3rd defendant Thangathurai had got a plot to an extent of 4124 ½ sq.ft., in S.No.69/5 - suit property and sold it through Ex.B6. Details of suit properties as follows:

i) In New S.No.177/1 - Old S.No.69/4 - Out of 0.16.0 ares - 1326 sq.metre = 14267.76 sq.ft.,

ii) In New S.No.177/2-Old S.No.69/5 - Out of 0.14.0 ares – 1016.82 sq.metre = 10940.98 sq.ft., ----------- ------------- Total 2342.82 sq.metre = 25208.74 sq.ft., ----------- ------------- Therefore, in view of execution of Ex.B6 sale deed that too after the death of Palanimalai Chettiar, the 3rd defendant Thangathurai is not entitled for partition of suit property at all.

¶24Therefore, as the plaintiffs are the wife and daughters of Palanimalai Chettiar, each person is entitled 1/6th share in the suit properties. The 3rd defendant Thangathurai had the benefit of selling his share through Ex.B6 as early as on 13.10.2011 before 12 years.

¶25Therefore, in all fairness, except 3rd defendant Thangathurai, it has to be divided into six shares. Based on the aforesaid discussions, we are of the considered opinion that the plaintiffs are entitled for each 1/6 share i.e., 4/6 share in the suit properties.

¶26In the plaint, there is a prayer for 4/7 share in the rent collected by the 1st defendant and also for past and future mesne profits. As both the prayers are one and the same, the plaintiffs are entitled to lay a separate claim under Order 20 Rule 12 CPC.

¶27In fine, this appeal stands partly allowed. The plaintiffs are entitled to 1/6th share each in the suit properties. The cross objection stands dismissed. Considering the relationship between parties, there is no order as to costs. Consequently, connected miscellaneous petition is closed. [R.S.M., J.,] [R.K.M., J.,]

05.09.2023 Index : Yes / No Internet : Yes / No : Yes / No Speaking Order / Non-Speaking Order ssn To The Principal District Court, Villupuram. R.SUBRAMANIAN, J., R.KALAIMATHI,

J.,

ssn A.S.No.96eofe2019 CrosseObj.No.46eeofe2019 Pre-deliveryejudgmentein A.S.No.96eofe2019 C.M.P.No.3738eofe2019 CrosseObjectioneNo.46eofe2019

05.09.2023