Aggrieved by the judgment and decree dated 22.10.2009 passed by the First Additional District Judge, Coimbatore in A.S.No.40 of 2009 modifying the judgment and decree dated 05.09.2008 passed by the Subordinate Judge, Pollachi in O.S.No.54 of 2001, defendants 1 and 2 are before this Court by way of the present Second Appeal.
2. Originally, the plaintiff, who is the 1st respondent herein, filed a suit for partition in O.S.No.54 of 2001 for partition of A, B and C schedule properties into four equal shares by appointing an Advocate Commissioner for division of properties by metes and bounds and allot one such share to her and pass a decree of partition of properties of D schedule into eight equal shares and allot five shares to her and mesne profits of Rs.5,000/- per month and future mesne profits as per the rate fixed by this Court.
3. According to the plaintiff, her father viz. one Nanjappa Gounder purchased the suit schedule property as his own self-acquired property. In order to make some improvement and with an ulterior motive, a deed of exchange has been created between the plaintiff's father and two other persons, viz. Marappa Gounder and his son, Kandasamy Gounder and as such, the suit property has been handed over to her father. It is the case of the plaintiff that fraud was done by the defendants 1 and 2, who are none other than her brothers. The 3rd defendant in the suit is the sister of the plaintiff. The plaintiff's father died intestate in the year 1984 and her mother Chinnammal died on 19.06.1995.
4. The 'B' schedule property was purchased by the father of the plaintiff by a sale deed dated 17.05.1970 and the plaintiff was provided with 1/5th share in the produce in the 'B' schedule properties. The 'C' schedule property was purchased by the father of the plaintiff as a self-acquired property and the plaintiff was separately getting her share. The 'D' schedule property was jointly purchased by the plaintiff and her father Nanjappa Gounder out of their respective money and that both of them have got equal share in the said property. After the death of Nanjappa Gounder, the plaintiff is entitled to 5/8th share in the 'D' schedule property and the defendants are entitled to 1/8th share in the 'D' schedule property and that the plaintiff is ready to give up respective share to the defendants, since the properties are transferred in the names of the plaintiff and Nanjappa Gounder.
5. It is the further case of the plaintiff that the total property yield worth is Rs.2,40,000/- and her 1/4th share comes to Rs.60,000/- and there is no possibility for jointly owing the suit property. Since, according to the plaintiff, the defendants 1 to 3 designed an illegal plan to sell the entire suit properties, she caused a lawyer's notice to the defendants on 01.09.1997. In the meanwhile, defendants 1 to 3 hurriedly attempted to sell the entire suit properties. Hence, the plaintiff filed a suit for partition.
6. Denying the plaint averments, the defendants in their written statement have stated that the plaintiff got married in the year 1967 and at that time, she was provided with seer taking into account the family status. The suit properties are joint family properties consisting of the defendants 1 and 2 and their father Nanjappa Gounder. They ran tobacco business and from the income derived from the same, the properties were purchased in the name of Nanjappa Gounder as the Kartha of the joint family. Therefore, according to the defendants 1 and 2, 'A' and 'B' schedule properties absolutely belong to them and that the plaintiff and the 3rd defendant have no right in the same.
7. It is the further case of defendants 1 and 2 that the plaintiff was aware of the Exchange Deed executed by them and their father, Nanjappa Gounder and that the properties are joint family properties belonging to them and their father and not the absolute property of their father. According to them, out of the income derived from tobacco business, an extent of 13.87 acres of land was purchased at Varappatti in the name of Nanjappa Gounder as a Kartha of joint family and the land at Patchapalayam was legally exchanged. Subsequently, an extent of 3.51.1/6 acres of land was purchased in 1970. Nanjappa Gounder never exercised independent right over the properties and the plaintiff was never in possession of the suit properties and she was never given 1/5th share in the produce. Thereafter, an extent of 2.80 acres of land was purchased at Vadavalli in the name of the plaintiff and Nanjappa Gounder out of the income derived from the joint family properties and that defendants 1 and 2 have also right in that property. A property was also purchased in the name of the plaintiff's husband Easwaramoorthy. When Nanjappa Gounder was alive, a family arrangement was made in the presence of Nachimuthu Gounder and Marappa Gounder in 1981. As per the family arrangement, the lands at Varapatty and Panapatti were alloted to the defendants and the land in the name of the plaintiff and Nanjappa Gounder was allotted to the plaintiff. It was agreed that defendants 1 and 2 have to look after their parents and do necessary seer to the plaintiff and the 3rd defendant. Therefore, according to defendants 1 and 2, the plaintiff is estopped from disputing the family arrangement and claiming partition.
8. The Trial Court, on a consideration of the entire oral and documentary evidence, dismissed the claim of the plaintiff for partition and other reliefs and passed a preliminary decree for partition of 1/4th share in the 'C' schedule property, 1/12th share in 'A', 'B' and 'D' schedule properties in favour of the 3rd defendant, viz. Palaniammal. Aggrieved by the said judgment, defendants 1 and 2 filed an appeal before the First Additional District Judge, Coimbatore in A.S.No.40 of 2009, and the First Appellate Court, by a judgment dated 22.10.2009, partly allowed the appeal, setting aside the judgment of the Trial Court. For better understanding, relevant portion of the judgment of the First Appellate Court is extracted hereunder:
30. It is not the case of the defendants 1 and 2, and plaintiff that they ousted other co-owner from the property. The ouster and adverse possession has not been specifically pleaded. Therefore, merely on the basis of the revenue records without the pleadings of ouster and adverse possession, the possession cannot be termed as adverse to the third defendant. Unless, the ouster is established, the possession of the other co-owners is deemed to be in possession of all co-owners. Further, the defendant in additional written statement dated 06.01.2006 also pleaded in para 11 that in the event of family arrangement is not believed, all the shares has to be divided as per law. Therefore, considering the entire fact in issue, and also the nature of the properties, even though the possession of D1 and D2 and plaintiff was established and also they made some improvements by digging well in the properties and made improvements, those things can be worked out only in the Final Decree proceedings, taking into consideration of the improvements made by D1 and 2 and plaintiffs. Therefore, legally the plaintiff is entitled to 1/12 share in the entire suit properties in all the schedules. Likewise, the third defendant is also entitled to 1/12 share in the suit properties by paying proper court-fee as per law, and the defendants 1 and 2 are entitled to 1/3 share each in the suit properties plus 1/12 share from the father's share, i.e. 5/12 in all the properties on payment of proper court fees. Even though, the plaintiff has not filed appeal considering the rights of the parties in the partition suit, this Court holds that the judgment of the Lower Court giving effect to the family arrangement is not valid. Accordingly, this appeal is partly allowed and the judgment of the Lower Court is set aside and the preliminary decree for partition is passed, allotting 1/12 share in the suit properties in favour of the plaintiff, and this point is answered accordingly.
In the result, the defendants 1 and 2 are each entitled to 5/12 share in the suit properties on payment of court-fees, likewise, the 3rd defendant is entitled to 1/12 share in entire suit properties. Above shares were worked out considering the joint family status of properties. Being the daughter, plaintiff and third defendant are entitled only from the share of their father. Accordingly, this appeal is partly allowed and preliminary decree for dividing the suit properties is passed aforesaid.
9. Learned counsel for the appellants contended that the Courts below failed to see that the materials on record clearly establishes that there was a family arrangement in the year 1981 even during the life time of Nanjappa Gounder, whereunder the properties in Varapatti and Panapatti were given to defendants 1 and 2 and the property in Vadavalli was given to the plaintiff and also with further understanding that the defendants 1 and 2 should maintain the parents and also provide necessary seer to the plaintiff and the 3rd defendant. It is his further contention that the Courts below failed to see that the defendants 1 and 2 and the plaintiff were enjoying Schedule A, B and C properties and the D Schedule property, respectively, pursuant to the family arrangement and therefore, neither the plaintiff nor the 3rd defendant could claim any partition in respect of Schedule A, B and C properties.
10. Per contra, learned counsel appearing for the respondents submitted that the family arrangement has not at all been proved and that the 2nd respondent/3rd defendant was not a party to the alleged family arrangement and no provisions were made in the family arrangement to the mother of the appellants and also the 3rd respondent. According to the learned counsel, the so-called family arrangement cannot be given any effect and that no document was produced to show that there was a family arrangement. It is his contention that the judgments of the Courts below believing the family arrangement is not valid.
11. The only substantial question of law that arises for consideration in this appeal is as follows:
When there is a family arrangement which was accepted by the Trial Court and shares have been allotted to the parties concerned, whether the First Appellate Court is right in modifying the order of the Trial Court by rejecting the family arrangement and granting the relief of shares?
12. According to the appellants/defendants 1 and 2, there are four Schedule properties viz. A, B, C and D purchased by their father and that the said properties are ancestral properties and that their sisters, i.e. the respondents herein, who are the plaintiff and the 3rd defendant in the suit are not entitled to any share as demanded by them. Though the Trial Court rejected the claim of the plaintiff, the grievance of the appellants/defendants 1 and 2 is that the Trial Court has passed a preliminary decree in favour of the 3rd defendant. It is the case of the appellants that there was a family arrangement, based on which properties have devolved on them in the year 1981. But the said plea has not been accepted by the First Appellate Court on the ground that there was a Partition Deed, which does not reflect the family arrangement between the parties.
13. In any event, the First Appellate Court has observed that in the family arrangement, the 2nd respondent/3rd defendant is not a party and that admittedly, her parents were alive at that point of time and she did not get any share in the property. The First Appellate Court, disbelieving the version of defendants 1 and 2 that family arrangement is said to have been in existence, granted 1/12th share of the entire suit properties each in favour of the 1st respondent/plaintiff and the 2nd respondent/3rd defendant and 5/12th share of the entire suit properties each to appellants/defendants 1 and 2.
14. Admittedly, based on the evidence let in by the parties and taking into account the entire documentary evidence, the suit schedule properties have rightly been demarcated and allotted to the parties, i.e. the appellants and respondents. Also, in view of the ruling of the Hon'ble Apex Court in the case of Syeda Rahimunnisa vs. Malan Bi (dead) represented by L.Rs. reported in (2016) 10 SCC 315, this Court cannot go into the finding of fact in the absence of perversity and that the paramount consideration for the High Court while hearing a Second Appeal is the exercise of powers of High Court as per Section 100 C.P.C. Hence, this Court finds no reason to interfere with the finding rendered by the First Appellate Court and accordingly, the same is confirmed. The substantial question of law is answered accordingly.
In fine, the Second Appeal stands dismissed. No costs. Consequently, connected M.P.No.1 of 2011 is closed.