The case of the plaintiff as set out in the plaint is as follows:-
The Plaintiff and the Defendants 1 and 2 are the children of late K.T.Sambandam, who died intestate on 16.4.1998 at Madras and they are Hindus and governed by the Hindu Succession Act. The said K.T.Sambandam had worked as the Assistant Director of Small Industries Services Institute, Guindy, Chennai-32 and he died leaving behind his Wife S.Sakuntala, Daughter Maragatham, the Plaintiff herein and two sons, the Defendants 1 and 2 herein as his legal heirs. Ex.P1 is the legal heir certificate dated 10.6.1998. His wife also died intestate on 14.5.1998. Item (1) of the suit property is the dwelling house and item (2) is a piece of vacant land. K.T.Sambandam had no ancestral property and purchased the said item (1) of the suit property under sale deed dated 19.7.1985, Ex.P2 and item (2) under sale deed dated 11.7.1973, Ex.P3, from and out of his own earnings. The Plaintiff got married in the year 1985 to one G.Balasubramaniam, who is an Engineer by profession and at the time of their marriage, no dowry and costly gifts were given, as her father believed in discipline. The Plaintiff is living with her husband and her children in the Flat, which was purchased by her from and out of her own earnings and the financial assistance given by her husband. Since, she was a working women, she kept all her jewels and that of her children, weighing more than 40 sovereigns in the house of her parents and she used to take those jewels from her parents house, as and when she needed. Till the death of her parents, the jewels were in their custody and she had not removed them from the house. However, she had not included the jewels as a subject matter of the suit. Since her father and mother died intestate, she is entitled to 1/3rd share in the suit properties. She made several requests to the Defendants 1 and 2 for settlement of her claim over the suit properties and for amicable division of assets of their late father, but the Defendants herein are not willing to give the due share to the Plaintiff and are raising all sorts of untenable and unreasonable contentions. Therefore, the Plaintiff had sent a legal notice dated 17.2.1999 to the Defendants 1 and 2 under Ex.P4, for which the Defendants 1 and 2 also issued a reply dated 20.2.1999 under Ex.P5. As she is the co-owner of the suit properties, she is deemed to be in joint possession of the suit properties and the possession of the Defendants 1 and 2 is deemed to be on behalf of the Plaintiff as a co-owner. Since the Defendants 1 and 2 are not willing to give the due share to the Plaintiff, she has come forward with this suit, claiming her 1/3rd share in the suit properties.
2. The case of the Defendants 1 and 2 herein as set out in the Written Statement is as follows:-
The fact that the suit properties are self-acquired properties of the father of the Plaintiff and the Defendants herein is admitted. But, even during his life time, he had made oral partition, by allotting item (1) of the suit properties to the Defendants 1 and 2, who were put in possession in pursuance of the said oral partition and they are in occupation of the same even during the life time of their father and they continue to reside in the dwelling house, i.e. item (1) of the suit properties, with their families. In the said oral partition, the Plaintiff was allotted the item (2) of the suit properties. The Plaintiff got married in the year 1985 and she is residing with her husband separately from that time onwards. As the Defendants 1 and 2 are the only two male members of the family of late K.T.Sambandam and since they are in continuous possession of the item (1) of the suit properties, the Plaintiff is not entitled to claim for any partition of the same, in view of Section 23 of the Hindu Succession Act, 1956 (herein after referred to as the Act). Further, pursuant to the oral partition, the Defendants had agreed among themselves to divide the item (1) of the suit properties in such a manner, so as to enable the 1st Defendant to occupy the Ground Floor and the 2nd Defendant to occupy the First Floor. In view of Section 23 of the Act, the Plaintiff suffers from legal incapacity to maintain the suit. Their father gave good education to the Plaintiff and now, she is employed in a private concern. The contention of the Plaintiff that she kept the jewels in the safe custody of the Defendants is an imaginary fiction, just made to claim a benefit out of that statement in this case. The Plaintiff never demanded for settlement of her claims and at the instigation of her husband, she has come forward with this suit for partition. Without the knowledge of the Defendants 1 and 2, she has obtained the death certificate and the legal heir certificate, only with a mala fide intention to file the present suit, just to harass the Defendants and to defeat the oral partition made by their father and the Plaintiff is not justified in claiming a share in the item (1) of the suit properties and item (2), being a small piece of vacant, cannot be divided into shares as claimed by the Plaintiff and the Plaintiff has no cause of action and hence, the suit is liable to be dismissed.
3. The following issues were framed for determination:-
(a)Whether the Plaintiff being one of the legal heirs of late K.T.Sambandam, the deceased father of the Plaintiff is entitled to 1/3rd share in the suit properties?
(b)Whether the claim of oral partition pleaded by the Defendants is genuine and valid in law?
(c)Whether there was any family arrangement prior to the death of the deceased father of the Plaintiff?
(d)Whether the partition claimed by the Plaintiff is barred under Section 23 of the Hindu Succession Act, 1956 and
Section 4 of the Partition Act?
(e)Whether the Plaintiff is entitled to mesne profits from the date of plaint for use and occupation of A-Schedule property?
4. On the side of the Plaintiff, the Plaintiff examined herself as PW.1 and marked as many as six documents as Exs.P1 to P6. On the side of the Defendants 1 and 2, The 1st Defendant herein examined himself as DW.1 and examined one V.Udayakumar as DW.2 and marked as many as ten documents as Exs.D1 to D10.
5. Issues (a) to (c):- The Plaintiff claims 1/3rd share in the suit properties, since her father died intestate on 16.4.1998 and her mother died on 14.5.1998, leaving behind the Plaintiff and the Defendants 1 and 2 as his legal heirs. She has stated that in spite of the demand, the Defendants 1 and 2 are evading to effect partition, which necessitated her to issue a legal notice dated 17.2.1999 under Ex.P4, for which the Defendants sent a reply notice dated 20.2.1999 under Ex.P5.
6. The Plaintiff has stated that there was no oral partition, as pleaded by the Defendants 1 and 2 and such a plea was taken by them only with a view to prevent the Plaintiff from taking the legitimate share in the suit properties. Per contra, the Defendants 1 and 2 would submit that there was an oral partition during the life time of their father and that the 1st Defendant was allotted Ground Floor and the 2nd Defendant was allotted First Floor. It is further stated that their parents lived with them till their death. It is their case that the Plaintiff was also present during the oral partition effected by their father and she is not entitled to claim any partition in respect of item (1) of the suit properties, in view of Section 23 of the Hindu Succession Act, 1956 as well. Thus, the Defendants repudiated the claim of the Plaintiff.
7. The pleadings and the prayer of the plaintiff in the suit are simple and straight forward in the sense that the Plaintiff has filed the suit, claiming that her father died intestate and she is entitled to 1/3rd share in the suit properties in accordance with the Hindu Succession Act, 1956, but for the oral partition pleaded by the Defendants 1 and 2, the Plaintiff is entitled to claim 1/3rd share in the suit properties as claimed by her. We have to see as to whether the oral partition pleaded by the Defendants 1 and 2 has been established in order to divest the right of the Plaintiff in respect of item (1) of the suit properties.
8. No doubt, under the Hindu Law, it is not necessary that partition should be effected by a registered partition deed. It is open to the parties to effect an amicable partition and no instrument in writing is necessary for the said purpose. However, unless and until there has been a valid and effective partition, the right of the parties subsists. When the plea of the Defendants is that the partition is oral, it must be proved by circumstantial evidence. Circumstantial evidence consists of not only the property and its users, but also it has to be confirmed or affirmed by the persons known in the locality and the relatives. It is also pertinent to point out that separate living in different houses, specified shares recorded in revenue papers and mutation of records are also additional factors, which are sufficient to prove oral partition.
9. In this case, the Defendants in the Written Statement have pleaded that the oral partition took place in the presence of the relatives. The 1st Defendant, while he was examined as DW.1 has deposed that at the time of oral partition, his father in law and mother in law, the 2nd Defendant's father-in-law and mother-in-law and DW.2 were present and after deliberation, item (1) of the suit properties was allotted to the brothers and the item (2) to the Plaintiff. This is an important circumstance, relied upon by the Defendants to show the division of properties orally and the aforesaid relatives witnessed the oral partition. DW.1 in his evidence has categorically deposed that at the time of his marriage, oral partition took place i.e. in June 1993, but he is unable to give the exact date of partition. However, his brother had got married only in the year 1996 and therefore, his statement that the father and the mother in law of the 2nd Defendant were present at the time oral partition cannot be true.
10. Another infirmity is also there. It is also deposed by DW.1 that till 16.4.1998, his father was living in the item (1) of the suit properties, as his own property and after his death, the mother was staying as a co-owner in the said item. If really the plea of the Defendants is true, then after partition the father would ceased to have his right as co-owner. DW.1 admitted that his father was residing till his death as owner of the suit property, which would clearly prove that there was no partition till his death. In case there was any oral partition and item (1) was allotted to the Defendants 1 and 2, the mother cannot be a co-owner. Further during the life time of the father, when partition was effected, he would not have omitted to make a provision to his wife after his life time. It is also admitted that the revenue records were in the name of their father till his death. Ex.D2 is in the name of the father. Exs.D3 to 9th Defendant are in the name of the Plaintiff and others. Though the Defendants claimed to have paid the property tax, water tax and electricity charges, the same would have been paid only as a co-owners. Admittedly mutation of records have not taken place till date.
11. One other remarkable piece of evidence is Ex.P6, a photograph of a stone embedded with letters "RAJMARG C-300". According to the plaintiff, it denotes two brothers' last names and the first part of the Plaintiff's name. The Plaintiff would submit that the said marking on the stone would clearly exhibits the intention of the father of the Plaintiff and the Defendants that he wanted his children to reside in the property jointly. The same is not specifically denied by the Defendants.
12. The Defendants examined one Udayakumar as DW.2 to speak about oral partition. The proof affidavit filed by DW.2 would reveal that he came to know about the oral partition in the year 1996, when he negotiated with the parents of the 2nd Defendant for the marriage of the 2nd Defendant. According to him, at that time, the Plaintiff's father told him that he had effected division amongst the children regarding the suit properties and he has further stated that the Plaintiff has filed the suit at the instigation of her husband, G.Balasubramaniam and he has always been very keen in taking the entire property for himself. He would further state that the above said G.Balasubramanian is a greedy person and reference was made to an article published in the Tamil Magazine viz. Junior Vikadan, in which it is reported that he has performed the death ceremony of his mother, even though she was alive. The said magazine has been marked as Ex.D10. Ex.D10 has no relevance to this suit. It is about a person by name Balasubramanian and it cannot be said that it is a reliable news item in the absence of any other material to substantiate the said news item. Based on some report published in the Weekly Magazine, we cannot presume that the said Balasubramanian is an aggrieved person and on his inducement, the Plaintiff has filed the suit.
13. Admittedly, the Plaintiff is one of the legal heirs to the deceased K.T.Sambandan and she has got right to claim a share in the suit properties. The evidence of DW.2, which is only a hearsay evidence is of no avail to the Defendants to prove oral division. There is no reliable oral and documentary evidence to prove that there was oral partition and the division was effected in the manner put forth by the Defendants 1 and 2 herein. The plea made by the Defendants and the evidence adduced show that the oral partition pleaded by the Defendants is quite unreasonable and has been made only to deprive the Plaintiff from having her due share in item (1) of the suit properties, which she is entitled to. Neither there was any family arrangement prior to the death of the Plaintiff's father. Therefore, I hold that the Defendants have failed to establish the oral partition as pleaded by them. Accordingly, the issues (a) to (c) are answered in favour of the Plaintiff.
14. Issue (d):- A plea is raised by the Defendants in the Written Statement that under Section 23 of the Hindu Succession Act, 1956, when the dwelling house is wholly occupied by the male members, the Plaintiff is debarred from claiming partition, until the male members chose to divide their respective shares. In view of the amendment of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), Section 23 of the Act has been deleted with effect from 9.9.2005. In view of the said amendment, the plea made by the Defendants cannot be sustained.
15. Nevertheless, the Defendants having raised a plea of oral partition, now they cannot contend that the Plaintiff is debarred from claiming a share in the family dwelling house, as a right to claim a share in the family dwelling house would automatically enure to the benefit of the family heirs, when male heirs intend to effect division among them. However, in view of the deletion of Section 23 of the Hindu Succession Act, 1956, the defence that the Plaintiff cannot seek for partition in the dwelling house cannot be sustained. Accordingly, issue (d) is also answered in favour of the Plaintiff.
16. Issue (e):- The Plaintiff has raised a question of mesne profits, since she is denied a share in the item (1) of the suit properties, i.e. the dwelling house, which is in occupation of the Defendants 1 and 2. As they are in personal occupation, no portion is let out to any tenants. Though, she has claimed mesne profits from the date of plaint for use and occupation of the suit properties by the Defendants, she has not quantified the mesne profits. The mesne profits if any the Plaintiff is entitled to in respect of her share would be agitated in the final decree proceedings. Therefore, this issue is delegated to final decree proceedings. Accordingly, the issue (e) is answered.
17. In the result, the suit is allowed in part and the Plaintiff is granted a preliminary decree for partition and separate possession of her 1/3rd share in the items (1) and (2) of the suit properties. However, considering the relationship of the parties and the facts and circumstances of the case, there will be no order as to costs.
Srcm