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In the Court of the IV Additional District Judge, Tirunelveli.
Present: Thiru Y. Gladstone Blessed Tagore, B.Sc., LL.B.,
IV Additional District Judge, Tirunelveli.
Friday, the 26th day of October 2018
Original Suit No. 44/2015
1) Kaleeswari
2) Ramalakshmi ... Plaintiffs
/Vs/
1) Ramakrishnan
2) M. Suresh
3) K. Sankar
4) Selvam ... Defendants
This suit coming before me on 06.10.2018 for final hearing in the
N. Mohamed Jamaludeen, Advocate for the first Defendant and the Defendants
documents and hearing arguments of both sides and having stood over till this
day for consideration this court today delivers the following:
JUDGMENT
The plaintiffs have filed this suit, for a preliminary decree for
partition, to declare, the sale deed executed by the 1 st defendant in favour of
the 2nd and 3rd defendants and the mortgage deed executed by the 1 st
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defendant in favour of the 4th defendant, as null and void, with cost and other
reliefs.
Gist of the averments contained in the plaint:
Durai Pandian and Nalayiram. 1st and 3rd schedule properties belongs to Durai
Pandian. Durai Pandian died intestate on 06.07.2007. Nalayiram, the mother
filed a suit before Principal Sub Court, Tirunelveli in O.S. No. 171/2009
against the present 1st defendant and plaintiffs for partition. Since the present
plaintiffs have decided to give the share of the mother, they have not appeared
deed in respect of her right over the 1 st and 2nd schedule properties in favour of
and 2nd schedule properties, plaintiffs and 1st defendant, each have 1/3 share.
Suppressing the share of the plaintiffs, the 1 st defendant executed a sale deed
regarding the plaint 3rd schedule property in favour of the 2nd and 3rd
defendants in the year 2011. The 1st defendant mortgaged, the plaint 4th
schedule property, a portion of the plaint 1 st schedule property, on 28.10.2011
in favour of the 4th defendant. The sale deed and the mortgage deed executed
by the 1st defendant will not bind the plaintiffs. Therefore, a preliminary decree
for partition is to be passed, in favour of the plaintiffs, for their 2/3 share and
property in favour of the 2nd and 3rd defendants and the mortgage deed
executed by the 1st defendant regarding the plaint 4th schedule property in
favour of the 4th defendant are to be declared as null and void.
3) The defendants 2 to 4 remained exparte.
Gist of the averments contained in the written statement filed by the 1st
defendant:
4) Plaintiffs were given in marriage, by the 1 st defendant and his
father, by giving jewels, more than the family status. After the death of the
father, plaintiffs have orally released their right over the properties, of their
father in favour of the 1st defendant. Since the plaintiffs have orally released
their right over the plaint schedule properties, they have not participated in the
suit filed by the mother in O.S. No.171/2009. The plaint 3 rd schedule property
Pandian, Kaliappa Thevar, Arumuga Thevar and Sankara Thevar, also have
right. Without impleading them, the suit is bad for non joinder of necessary
parties. After the oral release by the plaintiffs, they never enjoyed the suit
defendant. The allegation, that Nalayiram, the mother executed a settlement
deed in favour of the plaintiffs and 1 st defendant, is surprising. This document
was created by mischief. The suit is also bad for non joinder of necessary
parties, for not impleading Nalayiram.
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Gist of the averments contained in the reply statement:
enjoyment of the plaintiffs and the 1 st defendant. S.No. 679/1 is an ancestral
Kaliappa Thevar, Arumuga Thevar and Sankaran Thevar. Accordingly, S.No.
679 was sub divided as 1A1, 1A2, 2A1 and 2A2. S.No. 679/1A2 was given to
the share of Durai Pandian. Since Durai Pandian alone is entitled to the plaint
3rd schedule property, it is not necessary to implead the brothers of Durai
Pandian, as parties to the suit. Plaintiffs have not orally released their share in
the plaint schedule properties, during the relevant time of the death of their
father. Since, Nalayiram gave a settlement deed in favour of plaintiffs and the
1st defendant and delivered possession, it is not necessary to implead her as
party to the suit.
6) On the basis of these pleadings, the following issues were framed:
1. Is the suit bad for nonjoinder of necessary parties?
2. Whether the plaintiffs have released their right over the suit
properties in favour of the first defendant?
3. Whether the plaintiffs are entitled for a preliminary decree
for partition as prayed for?
4. Whether the plaintiffs are entitled for the relief of
declaration as prayed for, in respect of the sale deed No.
1781/2011 of Gangaikondan Sub Registrar's office?
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7) On the side of Plaintiffs, two witnesses were examined as P.W.1
and P.W.2, and 11 documents were produced and marked as Ex.A1 to Ex.A11.
On the side of the defendants, three witness were examined as D.W.1 to D.W.3
and two documents were produced and marked as Ex.B1 and Ex.B2.
plaintiffs.
Issue No.1:
9) According to the 1st defendant, the plaint 3rd schedule property
is an ancestral property, in which, brothers of Durai Pandian, Kaliappa Thevar,
necessary parties to the suit and without them the suit is bad for non joinder of
stated that,
belong to his father were partitioned among his brothers and accordingly
separate pattas were issued for those properties. Partition among the brothers
of Durai Pandian was admitted by D.W.1 himself. Therefore, it is not necessary
to implead the brothers of Durai Pandian or their legal heirs, as parties, to the
suit.
10) It is also the defence of the 1 st defendant that, the suit is bad
for non joinder of necessary parties, without impleading his mother Nalayiram,
as party to the suit. The mother Nalayiram was examined as P.W.2. In her
evidence she stated that,
plaintiffs and the 1st defendant was marked as Ex.A5. By way of Ex.A5
settlement deed, Nalayiram gave her right over the properties of her deceased
execution of the Ex.A5 settlement deed, Nalayiram did not have any right over
any of the properties. Therefore, it is not necessary to implead Nalayiram as
party, to the suit.
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11) For the reasons discussed above, the defence taken by the 1 st
defendant, that since the brothers of Durai Pandian and the wife of Durai
Pandian were not impleaded as parties to the suit, the suit is bad for non
defendant that the suit is bad for non joinder of necessary parties, fails.
Hence, Issue No.1 is decided against the 1st defendant.
Issue No.2:
12) According to the 1st defendant, his sisters, the plaintiffs have
orally released their right over the plaint schedule properties in his favour. The
1st defendant has not mentioned in his written statement, the specific date, on
which the plaintiffs have orally released their right over the plaint schedule
defendant examined two witnesses, D.W.2 and D.W.3. The 1 st defendant
executed a mortgage deed in respect of the plaint 4 th schedule property in
sisters. D.W.2 the release witness and the 4th defendant are very close relatives.
D.W.3 examined to prove the oral release is also a brother of D.W.2. Though
the 1st defendant examined D.W.2 Durai Pandian and D.W.3 Uchinimahali as
witnesses to speak about the oral release, it is very important to note that, it is
not mentioned in the written statement of the 1 st defendant that, plaintiffs
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orally released their right over the plaint schedule properties in the presence of
D.W.2 or D.W.3. D.W2 and D.W.3 are introduced as witnesses in this case,
only during the trial stage.
13) In the written statement of the 1 st defendant, it is mentioned
that,
tpl;ldh;."
It is the definite stand of the 1 st defendant that, only after the death of Durai
Pandian, plaintiffs released their right over the plaint schedule properties,
orally in his favour. During the cross examination, the 1 st defendant stated
that,
Qhgfkpy;iy."
released their share in his favour in the month of June 2007. In the written
statement, it is mentioned that only after the death of the father Durai
Pandian, plaintiffs orally released their share in his favour. Durai Pandian, the
father of the plaintiffs and the 1 st defendant died on 06.07.2007. But, D.W.1 in
his cross examination stated that in the month of June 2007, plaintiffs orally
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released their share in his favour. D.W.1 in his cross examination stated, as if,
in the month of June 2007, the plaintiffs orally released their share. Regarding
the date of alleged oral release, the 1st defendant took one stand in the written
statement that plaintiffs released their share orally after the death of his father.
But, in his cross examination, he stated that one month before the death of his
father, in the month of June 2007, plaintiffs orally released their share.
14) D.W.2 and D.W.3 in their evidence have stated that plaintiffs
have orally released their share in favour of the 1 st defendant during the death
ceremonial function of Durai Pandian. D.W.2 in his cross examination stated
that
vd;W njhpahJ.
D.W.3 in his examination stated that>
tpNr\k; ele;jJ."
According to D.W.2, the death ceremonial function would be performed on the
8th or 10th day. But, D.W.3 says that that death ceremonial function was held
on the 16th day. The evidence of D.W.2 and D.W.3 are not definite that, on
Releasing shares by sisters in favour of brother is a very important matter. On
what date, the properties were orally released is very important. But, it is not
certain from the evidence of D.W.2 and D.W.3 that, either on the 8 th day or on
the 10th day or on the 16 th day of the death ceremonial function of Durai
Pandian, the properties were orally released by the plaintiffs. But, it appears
from the evidence of D.W.1 that, D.W.1 takes a contrary stand that plaintiffs
orally released their share in the plaint schedule properties, one month before
the death of Durai Pandian, against the stand taken in the written statement.
15) The 1st defendant miserably failed to establish that plaintiffs
Hence, issue No.2 is decided against the 1st defendant.
Issue No.3:
16) The suit properties belonged to Durai Pandian, the father of
the plaintiffs and the 1st defendant. After the death of Durai Pandian, his wife
properties of her husband, in favour of the plaintiffs and 1 st defendant. So, the
plaintiffs and 1st defendant are each entitled for 1/3 share in the plaint 1 st, 2nd
and 3rd schedule properties. The plaintiffs 1 and 2 are together entitled for 2/3
shares in the plaint 1st, 2nd and 3rd schedule properties. Therefore, plaintiffs are
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entitled for a preliminary decree for partition for their 2/3 shares in the plaint
the plaintiffs.
Issue Nos. 4 and 5:
17) Plaintiffs have together entitled for 2/3 share in the plaint
schedule properties. The 1st defendant executed a sale deed in favour of the 2 nd
and 3rd defendants, regarding the plaint 3rd schedule property. The 1st
defendant has only 1/3 share in the plaint schedule properties. The sale deed
favour of the 2nd and 3rd defendants, is not valid, so far as the 2/3 shares of the
plaintiffs is concerned.
18) Similarly, 1st defendant executed a mortgage deed in respect
of a portion of the plaint 1st schedule property, the plaint 4th schedule property,
plaint schedule properties. The plaintiffs have 2/3 share in the plaint schedule
favour of the 4th defendant, is not valid, so far as the 2/3 share of the plaintiffs
is concerned.
19) Therefore, plaintiffs are entitled to a relief of declaration, that
the sale deed executed by the 1 st defendant, regarding the plaint 3rd schedule
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the plaintiffs is not valid. The plaintiffs are also entitled for the relief of
declaration that the mortgage deed executed by the 1st defendant in favour of
the 4th defendant, regarding a portion of a plaint 1 st schedule property, is also
not valid, so far as the 2/3 shares of the plaintiffs is concerned. Hence, issue
Nos. 4 and 5 are decided in favour of the plaintiffs.
Issue No.6:
20) Plaintiffs are entitled only for the reliefs specifically granted to
them. Except the reliefs, specifically granted, plaintiffs are not entitled for any
other reliefs. Issue No. 6 is answered accordingly.
21) In the result, a preliminary decree for partition is passed in
favour of the plaintiffs, for their total 2/3 shares, in the plaint 1 st, 2nd and 3rd
schedule properties. The plaintiffs are entitled to a decree of declaration, that,
the sale deed executed by the 1 st defendant in favour of the 2 nd and 3rd
defendants, regarding the plaint 3rd schedule property, so far as the 2/3 shares
defendant in favour of the 4th defendant, regarding a portion of the plaint 1 st
schedule property, so far as the 2/3 shares of the plaintiffs is concerned, are
not valid. Considering the facts and circumstances of the case, the parties shall
bear their own cost.
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Dictated by me to the stenotypist, transcribed and type written by
her, in the computer, corrected and pronounced by me, in the open court, on
this the 26th day of October 2018.
Sd/ Y. Gladstone Blessed Tagore,
IV Additional District Judge,
Tirunelveli.
Plaintiffs side witnesses:
1) P.W.1 Tmt. Ramalakshmi
2) P.W.2 Tmt. Nalayiram
Defendants side witnesses:
1) D.W.1 Thiru D. Ramakrishnan
2) D.W.2 Thiru A. Durai Pandian
3) D.W.3 Thiru A. Uchini Mahali
Plaintiffs side documents:
Defendants side documents:
Sd/ Y. Gladstone Blessed Tagore,
IV Additional District Judge,
Tirunelveli.