Srinivasan & Anr vs Minor S. Sanjai

Challenging the judgment and decree passed in O.S.No.16 of 2009 on the file of I Additional District Court, Coimbatore, the defendants have filed the above appeal.

The plaintiff filed the suit in O.S.No.16 of 2009 for partition, separate possession and for mesne profits.

The brief case of the plaintiff is as follows:-

(i) The plaintiff is the minor son of the 1st defendant and the 2nd defendant is his grand mother.

(ii) According to the plaintiff, the suit properties were ancestral properties. and on 31.01.2003, the suit properties were partitioned among the family members of the defendants. The plaintiff was not made as a party in the partition deed dated 31.01.2003. In the said partition deed, schedule 3 properties were given to the 2nd defendant till her life time and ''D'' scheduled properties were allotted to the 1st defendant and A3 properties were given to the 1st defendant after the life time of the 2nd defendant. The plaintiff requested his half share in the suit properties and also sent a legal notice on 09.04.2008. Since the 1st defendant did not come forward for amicable partition, the plaintiff has filed the suit.

The brief case of the defendants is as follows:-

(i) According to the defendants, the suit properties were partitioned on 31.01.2003. The 1st item of the suit property would go to the 1st defendant after the life time of the 2nd defendant. The plaintiff has no right to claim partition in respect of 1st item of the suit property. The mother of the plaintiff is not interested in living with the 1st defendant and often left the 1st defendant''s house to her parents house. She has also given a police complaint against the 1st defendant. In spite of the compromise made by the police, the mother of the plaintiff refused to live with the 1st defendant. As a result, the 1st defendant has filed a petition for divorce. The plaintiff''s mother demanded huge sum for divorce. Since the 1st defendant could not mobilize funds, he has withdrawn the the petition against his wife.

(ii) The 1st defendant mortgaged the 2nd item of the property with the Syndicate Bank, Pollachi Branch, on 23.01.2008 to develop the properties and also for the welfare of the plaintiff. If the plaintiff wants to divide the 2nd item of the property, he has to pay the proportionate mortgage amount to the creditor. At the time of division of the suit properties, there was a mortgage of Rs.70,000/- which was proportionately paid by the other sharers of Govindasamy Naidu and 2nd defendant , for which, the plaintiff has to pay the proportionate share to them.

(iii) According to the defendants, the plaintiff has no right to claim partition against the 1st item of the suit property. The suit has been filed at the instigation of the mother of the plaintiff. The 1st defendant is ready to live with the plaintiff''s mother and he has no intention either to alienate or encumber the suit properties. In these circumstances, the defendants prayed for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, P.W.1 was examined and 5 documents, Ex.A-1 to Ex.A-5 were marked and on the side of the defendants, D.W.1 was examined and Ex.B1 was marked.

The trial Court, after taking into consideration, the oral and documentary evidences let in by the parties, passed a preliminary decree in respect of item Nos. 1 and 2 and a decree for injunction was also granted in favour of the plaintiff. So far as the 1st item of the property is concerned, the trial Court has passed a preliminary decree observing that the plaintiff is entitled to get his half share in the 1st item of the property only after the demise of the 2nd defendant.

Aggrieved over the judgment and decree of the trial Court, the defendants have filed the above appeal.

Heard Mr.N.Manokaran, learned counsel appearing for the appellants and Mr.J.Hariharan, learned counsel appearing for the respondent .

It is not in dispute that the plaintiff is the son of the 1st defendant and the 2nd defendant is his grand mother. Under Ex.A1 partition deed dated 31.01.2003, the suit properties were divided among the sharers. Under the said partition deed, ''A'' schedule was allotted to the 2nd defendant and her husband Govindasamy Naidu, ''B'' schedule was allotted to the 1st son of Govindasamy and the 2nd defendant, viz., Navaneetham, ''C'' schedule was allotted to 2nd son Lakshmanan, ''D'' schedule was allotted to the 1st defendant , ''E'' schedule was allotted to the 1st defendant''s son Suresh and ''F'' schedule was allotted to their daughter Jayanthi. Now the suit has been filed in respect of ''A'' schedule and ''D'' schedule.

The trial Court passed a preliminary decree in respect of ''D'' schedule and postponed the plaintiff''s right to get half share in ''A'' schedule till the life time of the 2nd defendant.

From the evidence of P.W.1 and D.W.1, it could be seen that there is a dispute between them and that they are living separately. Admittedly, the minor plaintiff is in the custody of his mother. In respect of A3 property mentioned in Ex.A1 partition deed, the life interest was given to the 2nd defendant and after her life time, absolute right was given to the 1st defendant. The parties did not dispute the same in respect of schedule A3 mentioned in Ex.A1.

It is not in dispute that the properties are ancestral properties and that the plaintiff is a co-owner and acquired the right by birth. The contention of the defendants is that even the 1st item of the suit properties would go to the 1st defendant only after the life time of the 2nd defendant. The recitals made in Ex.A1 partition deed would establish that the properties are ancestral in nature and the life interest was given to the 2nd defendant in respect of schedule A3.

The properties mentioned as schedule A3 is item No.1 of the suit properties. As already stated, the 1st defendant would get absolute right in respect of item No.1 of the suit properties only after the life time of the 2nd defendant. Only after the 1st defendant gets absolute right in the 1st item of the suit properties, the plaintiff can claim a share in his father''s share. Though the 1st defendant has contended that the property was mortgaged with the Syndicate Bank for the welfare of the plaintiff, he has not let in any evidence in support of the said contention. Merely because the 1st defendant had mortgaged loan that does not mean that it was obtained for the benefit of the minor son. Therefore, the 1st defendant cannot ask the plaintiff to pay the proportionate loan amount. Since the plaintiff had acquired the right by birth, he is entitled to get half share along with the 1st defendant in the 2nd item of the suit properties.

So far as the 1st item of the suit properties is concerned, the plaintiff is entitled to get half share along with his father after the life time of the 2nd defendant.

The trial Court has rightly held that during the life time of the 2nd defendant, the right to claim partition does not arise. Taking into consideration the oral and documentary evidences, the trial Court has rightly passed a preliminary decree in respect of 2nd item of the suit properties and also held that the plaintiff is entitled to claim partition in the 1st item of the suit properties along with his father only after the life time of the 2nd defendant. Further, the trial Court also granted a decree for permanent injunction restraining the defendants from making any encumbrance in the suit property till final allotment is made to the sharers.

For the reasons stated above, I do not find any reason to interfere with the judgment and decree of the trial Court. The appeal liable to be dismissed. Accordingly, the appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.