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V.D.RANGACHARI versus MYTHILI

High Court of Madras

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V.D.Rangachari v. Mythili - APPEAL SUIT NO.810 OF 1991 [2002] RD-TN 693 (11 September 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 11/09/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

APPEAL SUIT NO.810 OF 1991

AND

APPEAL SUIT NOS. 517 OF 1992 AND TR.APPEAL SUIT NO.153 OF 2000 AND CROSS OBJECTION IN TR.APPEAL SUIT NO.153 OF 2000. A.S.NO.810 OF 1991

1.V.D.Rangachari

2.Devarajan

3.Sampath

4.Tmt.Janaki

5.Minor Lakshmi Narasimhan

(rep.by his mother and

guardian 4th appellant)

6.Aravamudhan. .. Appellants -Vs-

1.Mythili

2.Thulukkanam

3.K.T.Srinivasan

4.Arumugam

5.Arjunan

6.Annakkiliammal .. Respondents A.S.NO.517 OF 1992

1.Thulakanam

2.Annakiliammal. .. Appellants Vs.

1.Mythili

2.K.t.Srinivasan

3.Arumugam

4.Arjun

5.V.D.Rangachari

6.Devarajan

7.Sampath

8.Tmt.Janaki

9.Lakshmi Narasimhan (Minor)

(rep.by his mother Tmt.Janaki,

the 8th respondent herein)

10.Aravamudhan. .. Respondents.

TR.A.S.NO.153 OF 2000

1.Devarajan

2.Sampath

3.Janaki

4.Lakshmi Narasimhan,

minor by mother and

guardian Janaki.

5.Aravamudhan. .. Appellants

Vs.

1.C.P.Mythali.

2.Thulukanam

3.K.T.Srinivasan

4.Arumugham

5.Arjunan

6.Annakili Ammal. .. Respondents. CROSS-OBJECTION IN TR.A.S.NO.153 OF 2000

Arumugham .. Cross-Objector. Vs.

1.Mythili

2.Thulukanam

3.K.t.Srinivasan

4.Arjun

5.Annaniliammal

6.Devarajan

7.Sampath

8.Tmt.Janaki

9.Lakshmi Narasimhan (Minor)

(rep.by his mother Tmt.Janaki,

the 8th respondent herein)

10.Aravamudhan. .. Respondents.

Appeal Suit No.810 of 1991 and 517 of 1992 have been filed against the judgment and decree dated 13.8.1991 made in O.S.No.82 of 1982 by the Court of Subordinate Judge, Kancheepuram.

Tr.Appeal Suit No.153 of 2000 and Cross-Objection have been filed against the fair and decretal order dated 20.1.1997 made in I.A.No.39 0 of 1992 in O.S.No.82 of 1982 by the Court of Subordinate Judge, Kancheepuram. For Appellants : Mr.R.Subramanian in A.S.No.810 of 1991,

Tr.A.S.No.153 of 2000 and

for respondents in

A.S.No.517 of 1992.

For Respondents : Mr.S.Subbiah

in A.S.No.810 of

1991, Tr.A.S.No.153 of 2000.

:J U D G M E N T



Appeal Suit Nos.810 of 1991 and 517 of 1992 have been preferred against the judgment and decree dated 13.8.1991 made in O.S.No.82 of 19 82 by the Court of Subordinate Judge, Kancheepuram.

Transfer Appeal Suit No.153 of 2000 and Cross-Objection have been filed against the fair and decretal order dated 20.1.1997 made in I.A.No.390 of 1992 in O.S.No.82 of 1982 by the Court of Subordinate Judge, Kancheepuram.

2. Defendants 7 to 12 in O.S.No.82 of 1982 are the appellants, the plaintiff and defendants 2 to 6 in the above suit are the respondents in A.S.No.810 of 1991. Defendants 2 and 6 in O.S.No.82 of 1982, the plaintiff and defendants 3,4,5,7 to 12 in the above suit are the respondents in A.S.No.517 of 1992. Likewise, defendants 8 to 12 in O. S.No.82 of 1982 are the appellants in Tr.A.S.No.153 of 2000, the plaintiff and defendants 2 to 6 in the above suit are the respondents. The fourth defendant in the above suit is the cross-objector, the plaintiff, defendants 2,3,and 5 to 12, in the above suit, are the respondents.

3. The plaintiff has filed the above suit for partition and to allot 7/8 shares to the plaintiff and for Rs.3000/- towards mesne profits and for the future profits. The case of the plaintiff, in brief, is that the suit properties are the ancestral joint family properties of one C.P.Rajagopalachari; that he died on 3.2.1962, leaving behind him his second wife by name Chinnammal, who died in the year 1974, his only daughter Rukmani Amal, the 1st defendant herein through his first wife Maragadham, who predeceased her husband and the plaintiff herein, the daughter and one Narasimhan the son, both through his second wife Chinnammal, out of whom, Narasimhan died in the year 1981; that the properties being ancestral joint family properties and Narisimhan being the son of C.P.Rajagopalachari became entitled to ę share by birth; that the share of C.P.Rajagopalachari was inherited by his surviving heirs viz., his second wife Chinnammal and his children Rukmani ammal, Narasimhan and the plaintiff herein, each becoming entitled to 1/8th share; that Rukmani Ammal, the first defendant herein, sold her undivided 1/8th share in all the suit properties, in favour of the 2nd defendant herein, under a sale deed dated 6.12.1962; that the second wife of C.P.Rajagopalachari, Chinnammal, who inherited 1 /8th share died in the year 1974 and on her demise, her right devolved on her children Narasimhan and the plaintiff herein viz. 1/16th each; thus Narasimhan became entitled to 11/16th share and the plaintiff herein became entitled to 3/16th share; that on the demise of Narasimhan in the year 1981, his rights devolved on the plaintiff as his sole surviving heir; thus the plaintiff became entitled to 14/16 i.e. 7 /8 share in all the suit properties.

4. The further case of the plaintiff is that the 3rd defendant herein is a tenant living in a portion of the suit house; that he was paying the rent to Rajagopalachari and after his demise to his 2nd wife Chinnammal till her death in 1974,who have been managing the properties on behalf of the joint family, for and on behalf of its members including the plaintiff; that after the demise of Chinnammal, the rents were collected by Narasimhan till his death in 1981; that defendants 2,4 and 5 have been the lessees of the suit lands and they were also paying the rents for the land to C.P.Rajagopalachari and after his demise to Chinnammal for the remaining share belonging to the joint family; that after Chinnammal's demise, Narasimhan was collecting the rent till his life time and was paying the share to the plaintiff herein; that the 2nd defendant, being the purchaser from the first defendant, is entitled to 1/8th share, the plaintiff being entitled to the remaining 7/8th share.

5. The further case of the plaintiff is that the plaintiff has been demanding partition and for allotment of her 7/8th share in all the suit properties, ever since the demise of Narasimhan in 1981, the 2nd defendant is postponing such division on false pretext; that the 6th defendant is added as a party as she claims under sham and nominal document from her husband the 2nd defendant; that the first defendant died pending suit leaving the defendants 7 to 12 as her legal representatives who have succeeded to the cause of action and the estate of the first defendant. Hence the plaintiff has filed this suit praying to pass a decree in favour of the plaintiff for partition and to allot 7/8th share in the suit properties with due regard to the convenience of enjoyment, easements etc., for past profits of Rs.3,000/- to be paid by the defendants and for future profits from the date of plaint till delivery of possession appurtenant to the plaintiff's share.

6. In the written statement filed by the first defendant, she would submit that on the demise of C.P.Rajagopalachari, the properties left behind by him came to be shared by this defendant, the 2nd wife Chinnammal and her 2 children, each being entitled to ¨ shares; that on the demise of Chinnammal, her ¨ share again came to be divided among her 3 children viz. this defendant, the plaintiff and Narasimhan; thus this defendant became entitled to an additional 1/12 share in the properties, and thus, her share became 4/12 i.e. 1/3; that on the demise of Narasimhan, the properties have tobe shared by this defendant and the plaintiff in equal moieties; that the allegation that this defendant became entitled only to 1/8 share in the properties is unsustainable; that this defendant sold her undivided share in the property to the 2nd defendant herein in and by a registered sale deed dated 6.1 2.1962 and the 2nd defendant executed a promissory note for the sum of Rs.4,000/- being the balance of sale consideration; that since the 2nd defendant failed to pay the amount due under the promissory note, this defendant filed O.S.No.83 of 1971 on the file of the Court of Subordinate Judge, Kancheepuram and the suit was decreed against the 2 nd defendant; that this defendant filed E.P.No.10 of 1978 and brought the properties purchased by the 2nd defendant to sale and took the properties in Court sale in part satisfaction of the decree obtained against the 2nd defendant; thus the properties sold by this defendant to the 2nd defendant has been regained by this defendant over which the plaintiff has no claim; that the 2nd defendant was cultivating the lands as a tenant and paying the 'waram' and 'Guthagai' to Chinnammal during her life time and subsequently on some occasions to this defendant and on some occasions to Narasimhan; that defendants 4 and 5 are not in possession of any of the suit properties and that they are the brothers of the 2nd defendant and they have been purposely added as defendants with ulterior motives and to complicate matters, the 2nd defendant alone had been cultivating the lands and one or other of the owners has been collecting the waram.

7. The first defendant would further submit that the 2nd defendant herein has purported to sell the lands covered by the plaint schedule in favour of his wife Annakili Ammal in 1972 and the said sale is neither legal nor valid and is a sham and nominal one; that the said transaction does not in any way affect the rights of this defendant and of the plaintiff in the suit properties; that the 2nd defendant herein filed O.S.No.470 of 1980 on the file of the District Munsif, Kancheepuram praying for an injunction restraining this defendant from interfering with his alleged possession of the suit lands; that injunction was not granted and the suit is pending disposal; that the plaintiff at the best will be entitled to only a 1/4th share in the lands described as item No.1, in the plaint mentioned properties except S.No.1156/1, which absolutely belongs to this defendant; that the plaintiff is not entitled to any share in item No.2 in the plaint schedule, for the reasons already mentioned above.

8. In the written statement filed by the 2nd defendant, he would submit that late C.P.Rajagopalachari, the father of the plaintiff, died leaving behind no joint family property as such the suit properties as well as the other property at Madras which are not subject matters of present suit, are his separate and self acquisitions and enjoyed by him and therefore, the plaintiff is entitled to only 1/4th share and Rukmani Ammal, the first defendant herein is entitled to another 1/4th share, and Narasimhan and his second wife Chinnammal are respectively entitled to 1/4th share therein; that this defendant has validly purchased for due consideration the share of the first defendant Rukmani Ammal by a deed of sale dated 6.12.1962 and since then in sole and undisputed possession of the entire suit property, as a whole, in his own right as owner; that the allegation in the plaint that this defendant or defendants 3,4 and 5 are tenants is totally false and invented for the purpose of filing the present suit; that on the other hand, the defendant is in sole and exclusive possession of the suit properties in his own right as full owner prescribing adverse and hostile title and ouster to the knowledge of the plaintiff as well as other heirs of the later Rajagopalachariar and duly communicated from the date of sale and as such the plaintiff has lost her title in toto, if any, in the suit properties and suit has to be dismissed in limini on that ground alone; that the further allegations in the plaint that the defendants are tenants and that they were paying the rents to Smt.Chinnammal till her death in 1974 and thereafter to Narasimhan till 1981 or any other period and that Chinnammal was managing the properties are totally false; that the further allegation in the plaint that defendants 4 and 5 were also lessees and that they were paying rents for the lands as lessees is also untrue either to Chinnammal or to her son Narasimhan or her daughter Smt.Mythili or anyone else is not true; that the plaintiff never made demand for partition from this defendant or any one else for her alleged 7/8th share or any other share as such; that the plaintiff herein as well as her mother Chinnammal and brother Narasimhan filed O.S.No.122 of 1963 on the file of the District Munsif Court, Kancheepuram for injunction and the said suit was withdrawn by her and dismissed and in view of the same the present suit is barred; that by a valid registered deed of sale dated 4.2.1972 this defendant has conveyed the entire lands except an item of 99 cents in survey No.1154/1 as well as the house properties in Uthiramerur, in favour of his wife one Smt.Annakili Ammal and since then she is in sole and exclusive possession of the properties in her own right exclusively for herself, and adversely to the plaintiff and other heirs of Rajagopalachariar and on that ground alone the suit has to be dismissed.

9.In the written statement filed by the third defendant, he would submit that he was a tenant in occupation of a portion of the house from 1959 to 1969; that the plaint allegation that this defendant was paying monthly rents to Chinnammal up to 1974 and after her death to Narasimhan till his death in 1981 are false; that this defendant is unnecessarily dragged in this suit for the reasons best known to the plaintiff; that this defendant is neither necessary nor a proper party and hence this suit is not maintainable against this defendant, and therefore, he would pray to dismiss the suit against him with compensatory costs of Rs.500/- under Section 35.A of C.P.C.

10. In the written statement filed by the 6th defendant, she would submit that it is not true to state that the sale in favour of this respondent by registered sale deed dated 4.2.1972 from the 2nd defendant is a sham and nominal document; that the sale was for consideration of Rs.3,000/- and after the sale, this defendant exercised all acts of ownership over the items mentioned in the schedule except survey No.1156/1, 0.99 cents and also her items mentioned in the schedule; that the patta has been transferred in her name and she is paying kist for the lands; that she has also obtained loan from Uthiramerur Cooperative Agriculture Bank Ltd.; that it will be clearly seen that the sale in favour of this defendant is a real, genuine transaction and this cannot be disputed by the plaintiff; that this defendant is a bonafide transferee for valuable consideration; that the suit is barred by limitation and adverse possession, since this defendant has been in exclusive possession and enjoyment of the properties purchased by her from the 2nd defendant since 1972; that the plaintiff is not entitled to any share in the said properties as claimed by her; that the defendant would pray to dismiss the suit against her.

11. In the additional written statement, the 9th defendant would submit that his name is Sampath; that he has been wrongly impleaded as Srinivasan alias Sampath; that similarly the 8th defendant's name is Devarajan and he has no alias name as Pattumani; that the 12th defendant's name is Aravamudan and he has no alias name as Baby; that the defendant would pray to delete the alias names given for defendants 8 ,9 and 12; that this defendant adopts the written statement filed by the first defendant in the suit; that the plaintiff is not entitled to any share in the suit property much less 7/8th share in the suit property; that in any event, the plaintiff has been ousted from possession; that Rajagopalachari died in the year 1962; that the plaintiff did not come anywhere near the suit properties all those years; that this 7,8,9,10 and 12th defendants and their mother have perfected their title by adverse possession and ouster. Thus he would pray to dismiss the suit.

12. In consideration of the pleadings by parties, the learned Subordinate Judge has framed the following issues for determination: (i)Whether the suit properties are the self acquired properties of Rajagopalachari?

(ii)Whether the plaintiff is entitled partition of 7/8th share? (iii)Whether the 2nd defendant is exclusively entitled to get the properties in the 2nd item and the land in survey No.1157/1? (iv)Whether the decree in O.S.No.83/71 passed by the Court of Subordinate Judge is binding on the plaintiff?

(v)Whether the 2nd defendant is entitled to get the suit properties by adverse possession?

(vi)Whether the plaintiff is entitled to get past and future profits? (vii)Whether the suit is liable tobe dismissed against the defendants 1 to 5? (viii)To what relief the plaintiff is entitled to? The learned Subordinate Judge has also framed one Additional Issue for determination as to whether the plaintiff is the foster daughter of Kothainayagiammal?

13. To determine the issues framed, the Court of Subordinate Judge has conducted a full trial, during which, the plaintiff herself has been examined as P.W.1 for oral evidence and has marked exhibits A1 to A4, for documentary evidence. Likewise, the part of the defendants they would examine two witnesses, for oral evidence as D.W.1 and D.W.2 and would mark exhibits B1 to B8, for documentary evidence.

14. In consideration of the oral and documentary evidence, and upon hearing the learned counsel for both, the Subordinate Judge appreciating the evidence placed on record would arrive at the conclusion that the suit properties are the ancestral properties of late Rajagopalachari; that the 2nd defendant has filed written statement in O.S. No.122/63 on the file of the Court of District Munsif, Kancheepuram admitting that the first defendant is entitled to 1/8th share since she is the daughter of Rajagopalachari and as such the contention of the 2nd defendant that the plaintiff is entitled to only 1/4th share is not sustainable and the plaintiff is entitled to partition for 7/8 th share in the suit properties; that since the first defendant is entitled to 1/8th share, the first defendant is not entitled to sell the entire portion of the house property and hence the plaintiff is entitled to partition in the house property; that the 2nd defendant is not entitled to get the suit property by adverse possession; that there is no proper evidence regarding the past and future profits and therefore, the plaintiff is not entitled to past and future profits; that the plaintiff is not the foster daughter of Kothainayagiammal and finally the learned Subordinate Judge has come to the conclusion that the plaintiff is entitled to partition of the suit properties into 8 shares by metes and bounds and as such passed a preliminary decree in favour of the plaintiff for partition and separate possession of 7/8 share in the suit properties with costs, further disallowing the past and future profits remarking that the same to be decided under Order 20 Rule 12 of C.P.c. by separate proceeding granted liberty to the plaintiff to file an application for a final decree.

15. Accordingly, the plaintiff filed I.A.No.390 of 1992 in O.S.No.82 of 1982 on the file of the Court of Subordinate Judge, Kancheepuram praying to appoint an advocate commissioner to effect partition of the suit properties into 8 shares and to allot 7/8th shares to the plaintiff and to estimate the past and future profits from the date of filing of the Original Suit till the date of possession by the plaintiff.

16. The learned Subordinate Judge, having taken on file the above Interlocutory Application, had appointed Mr.T.V.D.Vengusha, Advocate as Commissioner to effect partition of the suit properties as per the preliminary decree and as such the Advocate Commissioner filed a report and after the receipt of the report of the Advocate Commissioner, the learned Subordinate Judge had passed a final decree in favour of the plaintiff to the effect that defendants 8 to 12 shall pay a sum of Rs.13,513.50 in so far as the paddy yielding is concerned, Rs.7,7 70/- in so far as the rent is concerned and Rs.12,285/-in so far as the coconut trees yielding is concerned, thus totaling a sum of Rs.33,568.50; that defendants 2 to 7 shall pay a sum of Rs.1,56,686.50 in so far as the paddy yielding is concerned and Rs.8,400/- in so far as groundnut yielding is concerned, thus totaling a sum of Rs.1,65,08 6.50 within a period of two months; that the plaintiff/petitioner shall receive the same after depositing the proportionate Court Fee on the above said amounts.

17. Aggrieved by the said decree and judgment in O.S.No.82 of 1982, the defendants have preferred A.S.No.810 of 1991 and A.S.No.517 of 1 992 before this Court.

18. Aggrieved by the fair and decretal order in I.A.No.390 of 1992 in O.S.No.82 of 1982, the defendants 2,3,5, 6 and 8 to 12 have preferred Appeal Suit 66 of 1997 and the 4th defendant has filed a CrossObjection on the file of the Court of District Judge, Chengalpattu and the same had been transferred to this Court to consider along with the connected Appeal Suits in A.S.Nos.810 of 1991 and 517 of 1992 and renumbered as Tr.A.S.No.513 of 2000.

19. During arguments, the learned counsel for both would only reiterate the facts pleaded respectively in the plaint and the written statements with no new facts nor legality having been brought forth and therefore, tracing the same would only be a repetition of the same facts and circumstances already extracted and will be a wasteful exercise and hence they have not been traced vividly herein.

20. The points that arise for determination in the above Appeal Suits and Cross-Objection are:

(i) Whether the trial Court is right in decreeing the suit in O.S.No.82 of 1982 and passing a fair and decretal order in I.A.No.390 of 1992? (ii) What reliefs, parties in the above Appeal Suits and Cross-Objection are entitled to?

21. In consideration of the facts pleaded by parties in the lower Court and in further consideration of the grounds of all the above appeals, having regard to the materials placed on record and upon hearing the learned counsel for all the parties concerned, what comes to be known is that the suit filed in O.S.No.82 of 1982 by the first respondent namely, Mythili, has given way for all the above appeals to come into being and the same has to be given paramount consideration. It is a suit for partition and separate possession of the suit properties into 8 shares and to allot 7/8 shares in favour of the plaintiff and to grant a sum of Rs.3,000/- towards past and future mesne profits on grounds that the suit properties are ancestral joint family properties of her father C.P.Rajagopalachari and her brother Narasimhan; that her father died on 3.2.1962 and her brother Narasimhan also died in 1981; that the suit properties being ancestral having ancestral nucleus, the said C.P.Rajagopalachari and Narisimhan having had no other avocation, job, business or trade, the suit properties devolved on these two, each one becoming entitled to half share in the whole of the suit properties i.e. 4/8 shares in favour of the father C.P. Rajagopalachari and the other 4/8 shares in favour of his only son Narasimhan and on the death of the father on 3.2.1962, his second wife Chinnammal and children Rukmani ammal, the first defendant herein, the only son Narasimhan and the plaintiff, the daughter, each becoming entitled to 1/4 share from out of 1/2 share that was belonging to their father from the whole of the suit properties i.e. each one of them becoming entitled to 1/8 share of the whole of the suit properties excepting Narasimhan, who was entitled to 5/8 share of the suit properties in common; that the first defendant sold her undivided 1/8 share in favour of the second defendant on 6.12.1962 and since the second wife of C.P.Rajagopalachari, the mother of the plaintiff also died subsequently in the year 1972, her rights devolved on her children the said Narasimhan and the plaintiff, thus Narasimhan became entitled to 11/16 shares and the plaintiff became entitled to 2/16 shares; that on the demise of Narasimhan in the year 1981, all his rights since devolved on the plaintiff as his sole surviving heir, the plaintiff ultimately became entitled to 14/16 shares i.e. 7/8 shares in all the suit properties, barring only the 1/8 share of the 1st defendant which had been sold in favour of the 2nd defendant, as per sale deed dated 6.12.1962.

22. It is a straight case projected by the plaintiff regarding partition of the suit properties on the ground that the suit properties are ancestral in nature which is neither rebutted nor any alternative plea has been taken on the part of any of the defendants much, less, by the first defendant to the effect that any of the suit properties or the whole of the same are self acquired to her father C.P. Rajagopalachari, nor any evidence let in to that effect, as a result of which, absolutely there is no ambiguity involved in the straightforward case put up in a clear manner and therefore, the only question that is involved in the suit is quite legal regarding the division of shares and hence if declaration of the shares, as it is claimed on the part of the plaintiff and confirmed by the lower Court in its judgment and decree, has been done in accordance with law, there is no other dispute to be solved so far as the said suit is concerned.

23. The issues framed by the lower Court regarding these points discussed, particularly, the first issue pertaining to the nature of the suit properties to C.P.Rajagopalachari, whether they were self acquired properties to him, the third issue regarding the entitlement of the second defendant, the 4th issue regarding the binding nature of the decree passed in O.S.No.83 of 1971 by the Court of Subordinate Judge on the plaintiff, are sufficient to cover up the whole dispute raised in the suit which has been perfectly done on the part of the lower Court besides even determining the claim of the second defendant by adverse possession including the plaintiff's claim of past and future mesne profits and the status of the other defendants to the suit claim.

24. In this regard, it is relevant to consider whether the lower Court has properly appreciated the evidence placed on record, both oral and documentary? A careful perusal of the judgment of the lower Court would show that the trial Court has not only traced the facts and circumstances as pleaded by parties from paragraphs No.1 to 9 of its judgment dated 13.8.1991, but also having framed 8 issues and one additional issue based on the pleadings, has ordered for the trial, thus allowing parties to record their evidence both oral and documentary, in which the plaintiff would examine herself as the sole witness and would speak to the facts pleaded in the plaint. In the course of examination of her evidence, in chief she would also mark exhibits A1 to A4 on her side, Ex.A1 being the copy of the plaint, Exs.A2 and A3 being the copies of written statements of D1 and D2 respectively, and Ex.A4 being the copy of the judgment in O.S.No.122 of 1963.

25. So far as the defence evidence is concerned, the 9th defendant and the 2nd defendant respectively would examine themselves as D.Ws.1 and 2 and through them, 8 documents would also be marked for documentary evidence as exhibits D1 to D8, Ex.D1 being the copy of the Rent Control O.P.No.5390 of 1981, Ex.D2 being the copy of deposition of P.W.1 in the said case, Ex.D3 and D4 both dated 19.4.1965, are respectively the judgment and decree made in O.S.No.122 of 1963, Ex.D5 is the copy of I.A.No.961 of 1964; Ex.D6 dated 4.2.1972 is the copy of sale deed executed by the second defendant in favour of the 6th defendant, Ex.D7 is the copy of the report of the mediator and Ex.D8 dated 3 0.7.1975 is the copy of the mortgage deed executed by the 6th defendant in favour of one Thambiran.

26. With all the above evidence placed on record and appreciating the same issue-wise in the context of the facts and circumstances of the case, the trial Court would take up issue No.1 namely whether the suit properties were the self acquired properties of late Rajagopalachari and would find that the first defendant did not at all plead in her written statement that the suit properties were the self acquired properties of Rajagopalachari and though the second defendant, the purchaser of the share of the first defendant had pleaded to the effect that those properties were the self acquisition of Rajagopalachari, still, there is no mention to the effect in his evidence as D.W.2 nor has he deposed to the effect as to how those properties were acquired by Rajagopalachari and therefore, easy conclusions have been arrived at by the trial Court that as pleaded by the plaintiff, the suit properties were ancestral properties to late Rajagopalachari.

27. At this juncture, it is relevant to have a little discussion about the propositions of law as propounded by different upper forums including the Honíble Apex Court. Courts have held that unless preliminarily it is proved by the party taking the plea that the properties in dispute are ancestral in nature, on the part of the party taking such a plea of giving the colour of Ďancestral to propertiesí the burden does not shift to the other side for proof of the nature of the property being self acquired since it is presumed that they are self acquired in nature Once preliminarily it is proved that the suit properties are ancestral, then the burden shifts to the shoulders of the other party to disprove the contentions of the plaintiff to the effect that they are not ancestral but the self acquired properties of to the deceased.

28. In the case in hand, a strong plea would be put up on the part of the plaintiff to the effect that the suit properties are ancestral to the late C.P.Rajagopalachari which had not even been denied in the written statement of the first defendant, nor proved positively to the effect that the properties were the self acquired properties of Rajagpalachari and so far as the contest is keen in between the plaintiff and the first defendant alone, at this stage itself, it could be presumed that the first defendant had admitted the plea of the plaintiff regarding the suit properties being ancestral in nature and this is sufficient proof to hold preliminarily that the plaintiff has proved to the effect that the suit properties are ancestral properties and therefore the burden definitely shifts to the defendants to prove as to how they are the self acquired ones of late Rajagopalachari. As already pointed out even though the second defendant, purchaser of the share of the first defendant, comes forward to take up a plea that the suit properties were the self acquired properties of the Rajagopalachari, still in his evidence, nothing is deposed to the said effect nor proved with preponderance of probability. Further more, when the second defendantís vendor, the first defendant herself has not taken such a plea, the purchaser taking such a plea is only artificial without any valid proof and therefore, it could be easily held that the burden cast on the defendants has not been discharged with rebuttal evidence in a valid manner and therefore, the trial Court deciding that the suit properties were the ancestral properties of late Rajagopalachari is quite acceptable and sustainable in law.

29. Regarding issues No.2 and 3 whether the plaintiff is entitled to 7/8 shares and whether the second item of the suit properties and Survey No.1156/1 could go to the first defendant, the trial Court has extracted the relationship of parties, the first defendant being the daughter of Rajagopalachari through his first wife Maragathammal, the plaintiff and Narasimhan being the daughter and son of Rajagopalachari through the second wife Chinnammal and that not only his first wife but the second wife and the only son Narasimhan having died one by one and the plaintiff being the direct heir to inherit the shares of her mother and brother, she becomes entitled to not only her share but also to that of her mother and brother and therefore, the claim of the second defendant that the first defendant was entitled to 1/4 share of the suit properties as a whole which had been sold in his favour as per sale deed dated 6.12.1962 and that those properties are in his possession and enjoyment which later on he sold in favour of his wife, the 6th defendant and that they are entitled to the same by means of adverse possession are not accepted by the lower Court. At this juncture, the lower Court would discuss about the suit filed in O. S.No.122 of 1963 on the file of the Court of District Munsif, Kancheepuram marked as

Ex.A1 and the written statement filed by the second defendant therein marked as Ex.A2 wherein the second defendant had admitted that the first defendant in the present suit i.e. the second defendantís vendor was only entitled to 1/8 share in the suit properties and therefore, he is not entitled to 1/4 share of the suit properties as it is argued which is only as a result of after thought and therefore, the lower Court was able to arrive at the valid conclusion that the plaintiff is entitled to get 7/8 shares in the suit properties.

30. When the main issues have been decided in the above manner, the lower Court would also have its own discussion regarding issues No.4,5 and 6 and the additional issue and would arrive at the conclusions for issue No.4 that the first defendant is tled to 1/8 share in the house property mentioned in item No.2 and that the sale of the entire house by her is not acceptable and that therefore, the plaintiff is entitled to seek for a partition in the second item of suit properties also.

31. For issue No.5 regarding part and future mesne profits claimed by the plaintiff, the lower Court would find

that on the part of the second defendant since he became entitled to only 1/8 share of the suit properties and in the absence of the said sale deed dated 6.12.1962 which has not been marked in evidence, the sale deed registered by the second defendant in the name of the 6th defendant, his wife, is equally not binding on the plaintiff and would decide the issue against the second defendant, further asserting that the plaintiff is entitled to her share in all the properties.

32. Since the plaintiff has not put up valid evidence as P.W.1 regarding the mesne profits and further since no evidence comes forth in this regard, the past mesne profits of Rs.3,000/- claimed by the plaintiff was without proof and the trial Court did not accept this claim of the plaintiff and has decided issue No.6 against the plaintiff. For the additional issue whether the plaintiff is the foster daughter of one Kothainayakiammal, the trial Court would have its own discussion and would validly arrive at the conclusion that she is not the foster daughter of one Kothainayakiammal. Ultimately, in answering issue Nos.7 and 8, the trial Court would validly arrive at the conclusion that the plaintiff is entitled to partition of the suit properties into 8 equal shares and to get 7/8 shares for herself and that she is not entitled to the past mesne profits of Rs.3000/- and for future mesne profits separate proceeding could be initiated under Order 20 Rule 12 of the C.P.C. and would pass a preliminarily decree in favour of the plaintiff to the said effect.

33. Not only the above decision arrived at by the trial Court, but also the manner in which it has been arrived at by extracting all the relevant facts and circumstances of the pleadings, having framed proper issues for determination of all the questions which arose in the suit and having conducted a full trial with due opportunity for parties to be heard and appreciating the evidence placed on record in the manner required by law, since the trial Court has validly and legally arrived at the conclusion to the effect that the plaintiff is entitled to partition of the suit properties into 8 shares by metes and bounds and is further entitled to get 7/8 shares to be allotted to her, besides being put in separate possession of the same thus passing a preliminary decree in favour of the plaintiff, the trial Court acted rightly and no interference needs to be made into the same.

34. Regarding the future mesne profits, the trial Court has properly calculated the same after perusing the report of the Advocate Commissioner as found in paragraph 3 of its order dated 20.1.1997 for the reasons assigned therein, since being acceptable on facts and law, this Court has no reason to interfere with the said order. Hence this Court delivers the following judgment.

In result,

(i)the above Appeal Suit Nos.810 of 1991 and 517 of 1992, fail and they are dismissed confirming the judgment and decree dated 13.8.1991 made in O.S.No.82 of 1982 by the Court of Subordinate Judge, Kancheepuram; (ii)the above Tr.A.S.NO.153 of 2000 and the Cross Objection also fail and they are dismissed confirming the fair and decretal order dated 20.1.1997 made in I.A.No.390 of 1992 in O.S.No.82 of 1982 by the Court of Subordinate Judge, Kancheepuram;

(iii)however, in the circumstances of the case, there shall be no order as to costs.

Index:Yes

Internet:Yes

gr.

To

The Subordinate Judge, Kancheepuram.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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