Rajamani vs Renu

B. Rajendran, J.—The Plaintiffs in O.S. No. 336 of 2000 on the file of the learned Subordinate Judge, Vellore are the appellants in this appeal. The suit was filed by them for a preliminary decree of partition and for separate possession of 33/45 share in the plaint described property. The trial court passed a preliminary decree of partition, which was reversed by the first appellate Court on appeal by the defendants. Aggrieved by the decree and judgment of the first appellate Court, the present second appeal has been filed.

According to the plaintiffs, the defendants 1 to 3 are sons and daughters of late. Munusamy and Ammaniammal. The said Munusamy married the 4th plaintiff as his second wife, through whom, the plaintiffs 1 to 3, 5 and 6 have born. The deceased Munusamy owned properties of his own which were in joint possession and enjoyment by the family of Munusamy. The said Munisamy died on 02.06.1981 leaving behind the plaintiffs and defendants as his legal heirs. Even after the death of Munusamy, the plaintiffs and defendants were in joint possession and enjoyment of the properties without dividing it by metes and bounds. During the year 1998, the plaintiffs asserted a right over the properties and sought for partition, but it did not fructify due to the inimical attitude of the first defendant. Thereafter, due to difference of opinion, the plaintiffs left the joint family property and residing separately. As the first defendant and other defendants refused to give share in the joint family property left by late. Munusamy, the plaintiffs filed the suit for partition.

The suit was resisted by the first defendant by filing a written statement. The written statement of the first defendant was also adopted by the 2nd and 3rd defendants. According to the first defendant, the suit property is not the self-acquired property of Munusamy and it was allotted to his share in a family partition. Even before the death of his father, a partition took place by executing a Kurchit dated 25.03.1973 in the presence of Panchayatars of Virinjipuram Village. The Kurchit was signed by the first wife Ammaniammal and second wife Irusammal Therefore, when the properties left by Munusamy were already partitioned, the question of any further partition will not arise. In fact, as per the Kurchit, second item of the property in the Schedule to the plaint was in common enjoyment by the plaintiffs and defendants and a joint patta No. 285 was issued by the revenue authorities. Similarly, the third item of the suit property in Survey No. 31/3A measuring 33 cents has been allotted to the first plaintiff and patta No. 232 was issued in his favour and the defendants have not objected to the enjoyment of the same. Similarly, the fourth item is allotted to the first defendant and he is in enjoyment of the same. The fifth item of the suit property was allotted to defendants 2, 3, 5 and 6. The 6th item is absolutely enjoyed by the first defendant. The 7th item of the suit property is the self acquired property of the first defendant and it ought not to have been included in the schedule of the plaint. Therefore, it was contended by the first defendant that when the properties mentioned in the plaint have already been subjected to partition, the relief sought for in the suit cannot be granted.

Before the trial court, the first plaintiff examined himself as PW1 and Exs. P1 to P10 were marked. On the side of the defendants, the first defendant Thiru. Renu examined himself as DW1 along with other witness Narayanan as DW2 and Exs. B1 to B3 have been marked. The trial court, on appreciation of the oral and documentary evidence pointed out that even though the defendants have alleged that a Kurchit dated 25.03.1973 was executed by which the suit properties have been partitioned and allotted to the respective plaintiffs and defendants, the defendants did not produce the kurchit as a document before the trial court. The trial court also pointed out that had there been a partition by executing a Kurchit, as alleged, the defendants could have produced tax receipts from 1973, however, such receipts have been produced only from the year 1988 under Ex.B3 series. Therefore, the trial court took an adverse inference against the defendants and held that the suit properties are not subjected to partition and the relief of preliminary decree for partition sought for by the plaintiffs is well founded. Accordingly, the trial court passed a preliminary decree of partition on 16.11.2006.

As against the decree and judgment passed by the trial court, the defendants preferred A.S. No. 3 of 2007 before the first appellate Court. The first appellate Court found that even though the defendants did not produce the Kurchit as a document, in Ex.B1, sale deed dated 27.05.1982 executed by the deceased Munusamy along with the plaintiffs 1 and 3, there was a recital to the effect that the properties covered under Ex.B1 was allotted to the plaintiffs as per the Kurchit. In one the boundaries given in Ex.B1, it was described that it is situate on the Southern side of the property of Renu (first defendant). Therefore, on the basis of this recital in Ex.B1, the first appellate Court reversed the decree and judgment of the trial court and allowed the first appeal.

The learned counsel for the appellants would contend that the first appellate Court failed to appreciate that the defendants, in order to defend the suit for partition, mainly relied on the Kurchit said to have been executed among the family members of the plaintiff and defendants. However, the alleged Kurchit has not been produced by the defendants and therefore, the trial court has rightly drawn an adverse inference against the defendants. The first appellate Court failed to note that when the defendants asserts that the plaint schedule properties have already been subjected to partition, a burden is cast on them to prove the same. DW2, in his evidence, has also categorically stated that to his knowledge, there was no partition took place among the properties. However, the first appellate Court, on the basis of few recitals in Ex.B1 reversed the well considered decree and judgment passed by the trial court and prayed for allowing this second appeal.

The learned counsel for the respondents/defendants, on the other hand, contend that merely because the Kurchit is not produced, it will not vitiate the defence pleaded by the defendants. Though the Kurchit was not produced before the trial court, the existence of it and the consequential partition took place among the parties was proved by producing Ex.B1, sale deed which was executed by none else than the plaintiffs 1 to 3 along with the deceased Munusamy. When the documentary evidence, Ex.B1 clearly spells out the partition took place among the legal heirs of the deceased Munusamy, the first appellate Court is right in reversing the decree and judgment passed by the trial court.

I heard the counsel for both sides and perused the materials placed on record. The plaintiffs 1 to 6 have filed the suit for partition and during the pendency of the suit, the second plaintiff died and his legal heirs were brought on record as plaintiffs 7 to 11 on 25.01.2006. At the time of admission of this second appeal, only notice was ordered to the respondents and substantial question of law has not been framed.

Having regard to the above facts and circumstances, the only substantial question of law arise for consideration in this second appeal is whether the defence pleaded by the defendants that there was a partition took place between the family members of Munusamy is proved by legally acceptable evidence.

On careful consideration of the pleadings, judgment rendered by the courts below and the documentary evidence placed on record, it is seen that plaintiffs have instituted the suit for partition and it was resisted by the defendants by contending that already the properties described in the plaint have been partitioned by executing a Kurchit. Thus, it is the categorical assertion and defence pleaded by the defendants that the properties are already subjected to partition among the legal heirs of Munusamy. Admittedly, the defendants did not file the Kurchit, however, they pleaded that the existence of the Kurchit and the consequential division of property could be evident from the recitals in Ex.B1 a sale deed executed by the plaintiffs 1 to 3 along with their father Munusamy.

A perusal of Ex.B1 sale deed would indicate that there was a reference to the Kurchit entered into among the family members of the plaintiffs and defendants. The recitals would further indicate that one the boundaries given in Ex.B1 was described as "Southern side by the property of canal and Northern side by the property of Renu (first defendant )" meaning thereby there was a division of the property in which plaintiffs as well as defendants were allotted share. There was also a recital to the effect that patta was granted on the basis of the Kurchit executed among the members of the family. These recitals do suggest that there was a division of the property among the legal heirs. If really there was no partition or division of the properties, as alleged by the plaintiffs, there would be no occasion to refer the boundaries as such or the reference would not have been made to the Kurchit. Ex.B1 is a sale deed dated 27.05.1981 which came into existence few years after the execution of "Kurchit". Therefore, on the basis of such recitals in Ex.B1 Kurchit indicating that there was a division of the property among the legal heirs, the first appellate Court, in my view, is right in reversing the decree and judgment passed by the trial court. Even though the defendants did not produce the Kurchit based on which they have laid their defence, the non-production of the Kurchit will not in any way weaken their defence especially when the existence of Kurchit was proved by producing Ex.B1, a sale deed executed by none other than the plaintiffs 1 to 3 along with their father Munusamy. Even though Ex.B1 was executed by the plaintiffs, it was not marked by the plaintiffs, rather, it is the defendants who have marked it on their side to substantiate their defence. Thus, the defendants have proved the existence of Kurchit by producing Ex.B1, sale deed and dislodged the claim of the plaintiffs. The first appellate Court also rightly relied on the recitals in Ex.B1 to conclude that the properties described in the plaint have already been subjected to partition. I do not find any reason to interfere with such well considered decree and judgment passed by the first appellate Court. Consequently, I hold that the only question of law framed in this second appeal has to be answered against the appellants.

In the result, the second appeal is dismissed confirming the decree and judgment passed by the first appellate Court. No costs.