The plaintiff in OS. No.30 of 2007 has come forward with this appeal, challenging the dismissal of the suit for partition in respect of the suit two items alone.
The case of the plaintiff is follows:-
2. The suit properties, comprising of two items, according to the plaintiff, belonged to one Muthu Gounder @ Nachimuthu Gounder, who died about 40 years prior to the filing of the suit leaving behind the plaintiff and his elder brother Ramasami Gounder. The said Ramasami Gounder died on 30.11.2005 leaving behind the defendants 1 to 3. The 3rd defendant Nallammal wife of Ramasamy died on 16.03.2007 pending the suit. According to the plaintiff the suit properties belonged to Muthu Gounder @ Nachimuthu Gounder, and after the death of said Muthu Gounder @ Nachimuthu Gounder, there is no partition between the brothers though they were enjoying the properties separately as per convenience and having separate Mess. Therefore, the plaintiff claimed a half share in both the items of the suit properties.
3. The said suit was resisted by the 1st defendant, son of Ramasami Gounder contending that the suit first item belonged to Muthu Gounder @ Nachimuthu Gounder, and the second item belonged to his father Ramasami Gounder absolutely in view of Ex.B1 which is draft patta issued by the Natham Settlement Officer. He would further contend that there was a partition between the brothers about 30 years ago and therefore the plaintiff is not entitled to any share in the suit properties.
4. The 2nd defendant daughter of Ramasamy filed a separate written statement claiming share in the properties. After the death of Nallammal the wife of Ramasamy Gounder the 1st defendant filed additional written statement contending that the said Nallammal had executed a Will on 06.10.2006, which was also duly registered bequeathing the suit properties in his favour. Therefore, according to him he is entitled to the properties to the exclusion of 2nd defendant. The 2nd defendant daughter paid Court Fees and sought for a decree declaring her share also.
5. On the above pleadings, the learned Trial Judge framed the following issues:
1. Whether the plaintiff is entitled to partition as prayed for?
2. To what other relief is the plaintiff is entitled to?
The following additional issues were also framed:
1. Whether the 1st defendant is entitled to 2/3 share of the properties of Ramasami Gounder as per the Will dated 06.10.2006 executed by the 3rd defendant?
2. Whether the 2nd defendant is entitled 1/4th share in the suit properties?
3. Whether the Will dated 06.10.2006 is executed by the 3rd defendant is true and valid?
4. To what other relief is the Plaintiff is entitled to?
6. The plaintiff examined himself as P.W.1 and Exhibits A.1 to 22 were marked. D.W.1 to D.W.3 were examined on the side of the defendants and Ex.B1 to B7 were marked.
7. On a consideration of the oral and documentary evidence, the learned Trial Judge rejected the claim of oral partition pleaded by the 1st defendant. The learned Trial Judge also came to the conclusion that the suit 1st item is the ancestral property and therefore, the plaintiff is entitled to a half share in it. The learned Trial Judge rejected the claim of the plaintiff in respect of Item No.2 concluding that the same belongs to Ramasami Gounder, in view of the patta granted under Ex.B6. The trial Court also disbelieved the Will dated 06.10.2006 said to have been executed by Nallammal and granted equal share in the properties allotted to Ramasami Gounder to the 2nd defendant. Aggrieved by the rejection of the claim in respect of 2nd item the plaintiff is on appeal.
8. Aggrieved by the grant of lesser share the 2nd defendant has filed cross objection in Cross Objection No.60 of 2017.
9. I have heard Mr.V.P.Sengottuvel, learned counsel appearing for the appellant/plaintiff, Mr.I.C.Vasudevan, learned counsel appearing for the 1st respondent/cross objector and Ms.K.Indupriya, learned counsel appearing for the 2nd respondent/cross objector.
10. The following points arise for determination in this appeal:-
1. Whether the trial Court was right in rejecting the claim of the plaintiff in the suit 2nd item.
2.Whether the trial Court was right in disbelieving the Will dated 06.10.2006?
3. What will be the share that the parties will be entitled to?
Point No.1:
11. Insofar as item No.1 is concerned there is no dispute as between the plaintiff and the 1st defendant and the decree of the trial Court granting in half share to the plaintiff in Item No.1 is not appealed against by the defendants and the dispute is only with reference to Item No.2. Item No.2 is admittedly a Natham property. The 1st defendant would claim that this exclusively belongs to his father solely based on Ex.B1 which is the draft patta issued under the Natham Settlement Scheme. The said Ex.B1 itself shows that an enquiry was contemplated to be held on 22.05.1991 in the office of the Village Administrative Officer. The result of the said enquiry is not known. Apart from the above Ex.A1 contains the name of one Subayee apart from the name of the Ramasami Gounder father of the 1st defendant. The 1st defendant is unable to explain the presence of the name of one Subayee in the said exhibit. The plaintiff had in fact claimed that the suit 2nd item actually belonged to his grandmother and it devolved on his father after death of his grandmother.
12. The plaintiff is unable to produce any document of title relating to the said property. This being a partition suit, I do not think that we should go strictly by the law relating to the burden of proof and the entire evidence will have to be considered. Mr.V.P.Sengutuval, learned counsel appearing for the appellant would draw my attention to the evidence of the 1st defendant as D.W.2 and submit that in the light of the admissions made in cross examination the trial Court was not right in holding that the 2nd item belonged to only Ramasami Gounder solely on the basis of draft patta. The learned counsel would draw my attention to the following deposition of the 1st defendant in his cross examination:-
....me;j brhj;J Fwpj;J jhth 2tJ mapl;l ml;lltizapy; vd; jfg;gdhuhy; fpuak; th';fg;gl;lJ MFk;/ gpwF rhl;rp mr;brhj;J gl;lh bgw;wjhf TWfpwhh;/ me;j tPL ehd; gpwe;J tsh;e;j ehs; Kjy; ,Uf;fpwJ vd;why; ehd; gpwg;gjw;F Kd;djhfnt ,Uf;fpwJ/ mr;brhj;J bghWj;J vd; jfg;gdhUf;F bfhLf;fg;gl;l Mtzk; jhd; gp/th/rh/M/1 MFk;/ mjdhy; jhd; vd; jfg;gdhUf;F ghj;jpag;gl;lJ/ vd; mg;ghtpd; mg;gj;jhtpd; bgah; vdf;Fj; bjhpahJ/ gp/th/rh/M/1y; Rg;ghap vd;W bgah; Fwpg;gpl;Ls;sJ mth; ahh; vd;W vdf;Fj; bjhpahJ/... He further deposed as follows:
....me;j tPL ,UgFjpahf ,Ue;jJ/ vd; jpUkzj;jpw;F gpwF mt;tPl;oy; fh';nfaj;jpd; Iad; xU gFjpapYk; ehd; xU gFjpapYk; FoapUe;njhk; vd;why; xUth; FoapUe;jhh;/ mth;jhd; fh';nfaj;jpd; Iad; vd;W vdf;Fj; bjhpahJ/ ehd; mt;tPl;oy; Fo brd;w ,uz;L Mz;Lfspy; kw;bwhU gFjpapy; FoapUe;jth; btspnawptpl;lhh;/ ,d;W tiu ahh; vd;W mth; bgah; vd;dbtd;W vdf;Fj; bjhpahJ/ mg;gFjpapy; vd; rpj;jg;ghjhd; fh';nfaj;J Iaid Fo itj;J thlifapid th';fpf; bfhz;lhh; vd;why; bjhpahJ/ mr;brhj;J v';fs; FLk;gj;jpw;Fkk thjp FLk;gj;jpw;Fk; bghJ ghj;jpag;gl;lJ vd;W brhd;dhy; rhpay;y/ vd; jfg;gdhh; kw;Wk; vd; rpj;jg;ghtpw;Fk; gphptpid Mftpy;iy vd;whYk; vd; jfg;gdhh; bghpath; vd;gjhy; mth; bgahpy; gl;lh th';fg;gl;lJ vd;W brhd;dhy; rhpjhd;/ vd; mg;ghtpd; ghfj;jpw;F mth; bgahpy; gl;lh th';fg;gl;lJ/ /...
13. Relying upon the aforesaid evidence Mr.V.P.Sengottuvel, learned counsel appearing for the appellant would contend that the 1st defendant as D.W.2 had in fact admitted that the property belongs to the joint family. Mr.I.C.Vasudevan, learned counsel appearing for the 1st defendant would contend that the appellant being the plaintiff ought to have proved the case pleaded by him and he cannot rely upon the weakness of the case of the defendant to claim that item No.2 is also joint family. I do not think the said position of law that the plaintiff has to stand or fall on his own legs can be applied to a partition suit in such general terms. In a suit for partition all are plaintiffs and all are defendants.
14. Therefore, this Court is concerned only with the nature of the properties and as to what share the parties will be entitled to. This Court in Annapoorni v. Janaki reported in [1995 (1) LW 141] has held that even in suit for partition even if the defendant remained ex-parte, the Court has to grant a decree that will be in accordance with law. This Court had in fact interfered with the decree during execution proceedings invoking power under
Article 27 of the Constitution of India. Therefore, the claim that the plaintiff having failed to prove his plea cannot be rely on the defendant's weakness and seek a decree cannot be accepted. I am inclined to agree with the learned counsel for the appellant on the effect of the above extracted evidence of D.W.2 and the said evidence clearly goes to show that the suit 2nd item was also in possession of the joint family and patta was granted in favour of Ramasami Gounder, the father of the 1st defendant in the year 1991, based on the fact that he is eldest member of the family. Moreover, D.W.2 is unable to explain the presence of the name of Subbayee in Ex.B1. Yet another factor which has to be taken note is that Ex.B1 is a draft patta and further enquiry is contemplated. Therefore, Ex.B1 cannot be taken as a document which proves the exclusive tittle of the 1st defendant's father Ramasamy Gounder to Item No.2 of the suit properties.
15. In view of the above, the conclusion of the trial Court that Item No.2 of the suit properties is a separate property of Ramasamy Gounder and the plaintiff is not entitled the share in the same cannot be sustained.
Point No.2:
16. The 1st defendant has claimed that his mother Nallammal namely the 3rd defendant in the suit had executed a Will on 06.10.2006 bequeathing the suit properties to him and therefore her share in the suit property should be allotted to him. The Will is a registered document and attestor to the Will Thangavel has been examined as D.W.3. D.W.3 has deposed about the execution of the Will by Nallammal and its registration. He also signed as identifying witness in the office of the Sub Registrar and the evidence in chief examination has not been in any manner discredited in the cross examination. Of course there are, minor contradictions in his evidence, which do not in my opinion dilute the effect of his evidence with reference to the execution of Will by Nallammal and her mental capacity.
17. The learned Trial Judge has disbelieved the Will solely on the ground that the Will deals with the entirety of the properties. Therefore, the same cannot be taken as valid. In my considered opinion the approach of the trial Court in this regard is not correct. If a person bequeathes properties in excess of what she or he is entitled, to the validity of the document does not depend on the share in the property that Nallammal is found to be entitled to. If she is found to be entitled to a particular share and under the Will the said share will go to the 1st defendant who is the legatee. Therefore, the conclusion of the trial Court that the Will executed as Ex.B6 is not true and valid cannot also be sustained.
18. Now, the question that remains to be considered is with regard to the share to be allotted to the parties. Since I have held that the suit 2nd item also belongs to a joint family. The plaintiff will be entitled to half share in both items of suit properties. Admittedly Ramasami Gounder died on 30.11.2005 after coming into force of the Hindu Succession Act, 39 of 2005, and therefore, the 2nd defendant becomes a co-parcener along with the 1st defendant and Ramasami Gounder on and from 9.9.2005. Hence the half share of Ramasami Gounder will have to be divided between the 1st defendant, deceased Ramasami Gounder and the 2nd defendant and each of them would be entitle to 1/6th share. On death of Ramasamy Gounder his 1/6th share will devolve on the defendants 1 to 3. Each of them will get 1/18th (1/3 of 1/6). Therefore, the 1st defendant and 2nd defendant will get 1/6 + 1/18, that is 4/18th, the 3rd defendant will get 1/18th and the plaintiff however will get 9/18th share.
19. In view of the Will executed by Nallammal marked as Ex.B6, 1/18th share of the 3rd defendant will go to the 1st defendant. Therefore, the plaintiff would be entitled to 9/18th share and the 2nd defendant would be entitled to 4/18 share in the suit properties.
20. In the result the appeal is allowed and the judgment and decree of the trial Court are set aside and there will be a preliminary decree for partition declaring that the plaintiff is entitled to 9/18th share in both items of suit properties and the 2nd defendant daughter of Ramasami Gounder would be entitle to 4/18th share in both items of the suit properties. The Cross objections will stand allowed to the extent indicated above and the Cross Objectors are directed to pay the deficit Court fee of Rs.2000/- in the Cross Objection within a period of four (4) weeks from today. The decree in the cross objection will be drafted only on payment of such Court fee. Considering the relationship between the parties there will be no order as to costs. Consequently, the connected miscellaneous petition is closed.
01.08.2017 Index: No Internet: Yes Speaking order jv To The Additional District Judge cum Fast Track Court-I, Erode.
R.SUBRAMANIAN,J.
Jv A.S.No.680 of 2009 & MP.No.1 of 2011 and Cross Obj. No.60 of 2017 01.08.2017