The defendants 5 and 6 in a suit for partition have preferred this Second Appeal. The suit was decreed by the trial court and the same was confirmed by the First Appellate Court. Parties would be referred to by their ranks before the Trial court.
2. One Sheikmaidean Maraikair was possessed of substantial immovable properties and also movable properties. He died leaving his widow, four sons and a daughter. One of his sons has filed the suit. The first defendant is the widow of Sheikmaidean Maraikair. The defendants 2 to 4 are his other sons. The fifth defendant is his only daughter. The sixth defendant is the husband of the fifth defendant. The parties are Muslims that even their names suggest.
3. The case of the plaintiff is straight forward and uncomplicated. The properties belong to his father and the father died interstate on 09.04.1998 leaving his heirs as stated above. As per Mohammedan law applicable to the parties, the first defendant-wife would be entitled to 1 upon 8 share, the plaintiff and the defendants 2 to 4 are entitled to 14/72 shares each and the fifth defendant is entitled to 7/72 share.
4.The second defendant is sick and infirm person. The third and fourth defendants were abroad, that the plaintiff is cultivating the land and the sixth defendant is helping him in the cultivation. While so, the sixth defendant demanded partition as regards his wife, the fifth defendant's share. The plaintiff too agreed for that. However, since the defendants 3 and 4 were abroad, the partition could not be taken place immediately. In the meantime, the defendants 5 and 6, in collusion with the mother-the first defendant, took possession of the second schedule property. They are also attempting to harvest the agricultural lands in the first schedule property. Hence, the suit.
5. The suit was contested only by fifth and sixth defendants. Admitting the relationship of the parties but denying the extent of share claimed by the plaintiff as well as the contention of the plaintiff that he was cultivating the lands, these defendants alleged in the written statement that the father Sheikmaidean Maraikair had leased the property orally to the sixth defendant for an annual rent of Rs.20,000/- and the sixth defendant has been enjoying the property as a cultivating tenant. He had been paying rent regularly and promptly to the lessor and after demise of his father-in-law, he was paying the rent to the first defendant, his mother-in-law. He also found a market for the sugarcanes he cultivated, the sixth defendant entered into an agreement with a sugar factory. He has also obtained agricultural loan from bank. These facts establish that the sixth defendant alone has been enjoying the property as a cultivating tenant. Out of the properties scheduled in the plaint, Item Nos. 6, 9 and 14 of the first schedule property do not belong to Sheikmaidean Maraikair. Item No.30 of the first schedule of the property and also the second schedule property belong exclusively to the sixth defendant.
6.1 Relying on Ex.A-5 Chitta, the Trial Court has held that Item Nos. 6, 9 and 14 of the first schedule property belong to Sheikmaidean Maraikair. So far as the item No.30 of first schedule is concerned, the trial court found on the basis of Ex.B-2 sale deed that it exclusively belonged to fifth and sixth defendants jointly and has held that the said property is unavailable for partition. As to the movables in second schedule property, the trial court relying on the evidence of the sixth defendant, who examined himself as D.W.1, has come to the conclusion that they do not belong to him as contended by him. Accordingly, it passed a preliminary decree declaring the plaintiff is entitled 14/72 share in all the first and second schedule properties except Item No.30 of the first schedule.
6.2 So far as the sixth defendant's contention that he is a lessee under his father -in-law is concerned, the trial court has held that the sixth defendant has not produced any evidence to establish that he had been paying rent. Further, it rejected the sixth defendant's contention that he is a lessee as Ext.B-4, the hypothecation bond executed in favour of Pandiyan Gram bank, went contra to the said contention. It also came to the conclusion that there is no evidence available to indicate that the sixth defendant has been contributing his physical labour to establish that he is a cultivating tenant to avail the advantage of the Tamil Nadu Cultivating Tenants Protection Act.
6.3 Challenging the said decree, the fifth and sixth defendants preferred A.S.No.2 of 2002 and the First Appellate Court confirmed the said findings.
7 . Challenging the above said decrees, the fifth and sixth defendant have preferred this Second Appeal. On admission the following substantial questions of law have been framed by this Court:
a) Whether the findings of the Courts below are vitiated by it's failure to consider the documentary evidence under Ex.B-3 and D.W.2 particularly with reference to the claim of the second appellant as ''Cultivating Tenant''?
b) Whether the Courts below is right in not adverting to the definition of cultivating tenant under Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act?
c) Whether the Courts below is right in granting a decree for partition in favour of the first respondent of 14/72 share as the same is in excess as per the Mohammedan Law?
8. Heard both sides. There is nothing on record to indicate that the sixth defendant is a cultivating tenant. Whether a person is a cultivating tenant is a pure question of fact and therefore, this court would be reluctant to interfere with the said fact unless it is established that the findings in this regard by the courts below is perverse. No such perversity in the matter of appreciation of evidence was demonstrated by the learned counsel for the appellant.
9. So far as the shares allotted to the parties under the preliminary decree there was no dispute. Therefore, in essence there is no merits in this appeal.
10. It is submitted that the first defendant's mother died during the pendency of this appeal and therefore, her 1/8th share has to be divided among her children namely the plaintiff and the defendants 2 to 5. Accordingly, the shares of the plaintiff and the defendants 2 to 4 in the property would enlarge to the 16/72 share each whereas the heirs of the fifth defendants 8 / 72.
11. In the result, the Second Appeal is dismissed. But the shares declared by the courts below is modified to accommodate the share of the deceased second respondent/first defendant and according preliminary decree is modified.
To:
1.The 1st Additional District Judge, Tirunelveli
2. The Subordinate judge, Sankarankoil .