R. Banumathi, J.@mdashChallenge in this appeal is the preliminary decree for partition passed in C.S. No. 215 of 1996 dated 27.04.2009 directing partition of the suit property and allotting 1/3rd share to each of the Respondents/Plaintiffs. Unsuccessful, 2nd Defendant is the Appellant in this appeal.
2. Suit property is the self acquired property of A. Parthasarathy who died intestate on 12.11.1975. The genealogy of A. Parthasarathy is as under:
Parthasarathy
(died on 12.11.1975)
= Selvanayagi (D1)
(died on 04.09.1998)
|
Devasenapathy (died on 07.09.1988) |
Bhuvaneswari (P1) |
Shenbagavalli (P2) |
Shenbagavalli (D2) |
3. Case of Plaintiffs is that after the death of their father, Defendants 1 and 2 have been living in the suit property and have also let out some portion of the property on lease and are appropriating the rental income to themselves. Inspite of Plaintiffs'' request for partition of the suit property, Defendants 1 and 2 have evaded their demands and hence, 1st Plaintiff issued Ex.P1-legal notice (30.04.19820 to the Appellant/2nd Defendant not to let out the suit property or altering the physical features of the suit property and 2nd Defendant was reluctant to partition the suit property. 1st Plaintiff had also sent Ex.P2 another legal notice (18.09.1995) demanding for partition of the suit property by metes and bounds and render accounts of the rental income derived from the property. Appellant/2nd Defendant had sent Ex.P3-reply notice (09.10.1995). Alleging that Plaintiffs are entitled to 1/4th share, Respondents/Plaintiffs have filed the suit for partition and separate possession and also rendition of accounts. During the pendency of the suit, 1st Defendant-D. Selvanayaki, mother of Plaintiffs and 2nd Defendant died on 04.09.1998 intestate and the Court has also recorded that Plaintiffs and 2nd Defendant are the legal representatives of the deceased 1st Defendant.
4. Resisting the suit, 2nd Defendant filed written statement adopted by his mother deceased 1st Defendant. In the written statement, it is alleged that after the death of his father, 2nd Defendant was only looking after his mother and his elder brother Devasenapathy who was mentally retarded. 2nd Defendant incurred huge expenditure towards the medical expenses of his mother till her death and also meeting the medical expenses of the mentally retarded elder brother. In the suit property, 2nd Defendant has constructed two shops out of his own sources of income in the year 1983 and also carried out periodical repairs to the said property. 2nd Defendant further alleged that the marriage of 1st Plaintiff-Bhuvaneswari was performed by his father and the 2nd Defendant in the year 1975 and from out of his own income, 2nd Defendant himself performed the marriage of 2nd Plaintiff-Shenbagavalli in the year 1981. Case of 2nd Defendant is that at the time of marriage, Plaintiffs were given gold jewels, Sridhana and cash and both the Plaintiffs have relinguished their right infavour of 2nd Defendant. Even after such settlement was made, Plaintiffs have demanded huge amount from the 2nd Defendant and when the 2nd Defendant refused to make any payment to the 1st Plaintiff, she had issued Ex.P1-notice and that 2nd Defendant chosen to ignore Ex.P1-notice since the matter was already settled. As such Plaintiffs have No. right to inherit any share in the suit property as the Plaintiffs have already received their share by way of gold jewels, Sridhana and cash given at the time of their marriages and relinguished their right.
5. On the above pleadings, the learned Judge framed the issues (i) Whether the Plaintiffs are entitled to a preliminary decree for partition and whether 2nd Defendant is liable to render account? (ii) Whether there was any family settlement between the parties in the year 1981?
6. 1st Plaintiff-Bhuvaneswari examined herself as PW1. Exs.P1 to P4 were marked. Appellant/2nd Defendant-Karthikeyan examined himself as DW1. V. Krishnan, who was formerly a P.W.D. Contractor was examined as DW2. Exs.D1 to D15 were marked.
7. Upon consideration of oral and documentary evidence, learned Judge held that it is for the Appellant/2nd Defendant to prove the relinquishment, but the Appellant/2nd Defendant has not established the defence plea of relinguishment. Learned Judge further held that the suit property being the self-acquired property of Late Parthasarathy, Plaintiffs are lawfully entitled to 1/3rd share and after Ex.P1-notice long silence of Plaintiffs 1 and 2 cannot be a ground for refusal of their lawful share. On those findings, the learned Judge passed preliminary decree for partition allotting 1/3rd share to each of the Plaintiffs.
8. Challenging the impugned judgment, Mr. A.R. L. Sundaresan, learned Senior Counsel appearing for Appellant/2nd Defendant has contended that trial Court ought to have taken note that the 1st Plaintiff''s marriage was conducted by the father of the Plaintiff and 2nd Plaintiff''s marriage was conducted by 2nd Defendant himself and that Plaintiffs were given gold jewels, Sridhana and cash at the time of their marriage. It was further submitted that Plaintiffs having accepted the gold jewels, Sridhana and cash in pursuance to the family settlement, Plaintiffs have relinguished their share in the suit property which aspect was not property appreciated by the learned Judge. Learned Senior Counsel for Appellant would submit that even though plea of relinquishment was stated in the written statement of the Defendants, Plaintiffs have not filed any reply-statement or rejoinder thereby denying the plea of relinguishment. It was further contended that after issuing Ex.P1-notice, Plaintiffs remained silent for more than 13 years and their right of share if any was extinguished and that Plaintiffs are not entitled to any share in the suit property.
9. Mr. R. Mukundan, learned Counsel appearing for Respondents has submitted that 1st Plaintiff employed as Professor in a Government college and 2nd Plaintiff''s marriage being inter-caste marriage, all expenses for the marriage was borne by themselves and No. jewels or any Sridhana were given to the Plaintiffs at the time of their marriage. It was further submitted that 2nd Defendant had No. sources to perform the marriage of 2nd Plaintiff. Learned Counsel for Respondents would contend that defence plea of relinquishment is unacceptable and the learned Judge has rightly negatived the plea of relinguishment. Drawing our attention to the evidence, learned Counsel for Respondents would further submit that even in the year 1983, two shops were constructed in the front portion of the suit property and 2nd Defendant was collecting the rental income from the shops and 2nd Defendant is bound to render the accounts.
10. Admittedly, the suit property is the self-acquired property of late Parthasarathy. It is not in dispute that 1st Defendant-mother Selvanayagi was mentally deranged and the eldest son-Devasenapathy was also mentally deranged. Devasenapathy died on 07.09.1988. After the death of Devasenapathy, Plaintiffs 1 and 2 and Defendants 1 and 2 were entitled to 1/4th share each. Marriage of 1st Plaintiff was performed on 16.03.1975 even during the life time of the father. Inter-caste marriage of 2nd Plaintiff was performed in the year 1981 at Uppiliappan temple, Kumbakonam.
11. 1st Plaintiff sent Ex.P1-legal notice (30.04.1982) calling upon the 2nd Defendant not to convert the house for non-residential purpose without the consent or knowledge of 1st Plaintiff and calling upon the 2nd Defendant not to make any change or alteration in the building or effecting any demolition. Appellant/2nd Defendant did not respond to the notice Ex.P1. According to 2nd Defendant, he did not respond Ex.P1, since Plaintiffs have already received gold jewels, Sridhana and cash. After issuing Ex.P1-notice, Plaintiffs have also did not pursue the matter. Again Plaintiffs have issued Ex.P2-notice dated 18.09.1995 calling upon the 2nd Defendant to divide the suit property by metes and bounds and allot 1/4th share each to the Plaintiffs.
12. As pointed out earlier, marriage of 1st Plaintiff was performed in the year 1975. In her evidence, PW1 has stated that 9 months prior to the death of their father Parthasarathy, her marriage was performed. PW1''s marriage thus performed even during the life time of her father. 2nd Plaintiff got married in 1981 at Uppiliappan temple, Kumbakonam and the marriage of 2nd Plaintiff being inter-caste marriage. Ex.D12 is the letter written by the 2nd Plaintiff to the 2nd Defendant wherein 2nd Plaintiff has indicated that her brother (2nd Defendant) had arranged for her marriage.
13. In his evidence, DW1 has stated that Plaintiffs have relinquished their right infavour of the 2nd Defendant accepting their share by way of gold jewels, Sridhana and cash given at the time of marriage. As rightly pointed out by the learned Judge, it is for the Appellant/2nd Defendant to prove the defence plea of relinguishment. Excepting the oral evidence of DW1, No. other evidence was adduced to substantiate the plea of giving gold jewels, Sridhana and cash and also the family settlement. Ex.D12-letter written by the 2nd Plaintiff that 2nd Defendant had arranged for her marriage would not go to show that 2nd Plaintiff was given gold jewels, Sridhana and cash at the time of her marriage. Absolutely, there is No. material to show that gold jewels, Sridhana and cash were given to the sisters (Plaintiffs).
14. In his evidence, 2nd Defendant (DW1) had stated that a panchayat was held before the elders during the end of 1981 and their relatives Kalathi Mudaliar, Ranganathan, Ramachandran, Govindarajan and Ors. were present during such panchayat in which Plaintiffs have orally agreed to give up their rights in the suit property. To corroborate the evidence of DW1, none of the panchayatdars were examined to show that there was any such panchayat held in 1981. It is pertinent to note that holding of any such panchayat and the settlement arrived at during the panchayat has not been stated in Ex.P3-legal notice issued by 2nd Defendant. DW1 has stated that Plaintiffs have agreed for settlement and even though they told that they will given it in writing, inspite of request, Plaintiffs have declined to give in writing giving up their right. Evidence of DW1 that there was a panchayat in which settlement was arrived at is not corroborated by any contemporaneous material evidence. In fact, 2nd Defendant had not issued any reply to Ex.P1-notice dated 30.04.1982. If at all there was any panchayat and settlement arrived at in such panchayat, 2nd Defendant would not have remained quite. Conduct of 2nd Defendant in not responding to the notice Ex.P1 weakens the evidence of convening a panchayat and settlement being arrived at in the said panchayat. Since gifting of gold jewels, Sridhana and cash to the Plaintiffs and the plea of relinquishment has not been established, learned Judge has rightly held that Plaintiffs are entitled to 1/3rd share each in the suit property.
15. Rendition of Accounts - In his evidence, DW1 has stated that in the year 1983, he had constructed two shops out of his own sources of income and that he had also carried out periodical repairs to the suit property and let out the shops. DW1 has further stated that originally the rent was Rs. 200/-per month and thereafter, it was increased to Rs. 300/-per month. 2nd Defendant had examined DW2-Krishnan, a contractor who had done plastering work and also repairs in the ceiling. In his evidence, DW2 has stated that he had done the plastering work in the walls of kitchen and made repairs in the stair case. In so far as the expenditure towards the construction of shops, DW2 has stated that he issued Ex.P13-bills and DW2 has stated that he received Rs. 1,36,573.50 for the said works from the 2nd Defendant. In his evidence, DW2 has stated that totally he had received Rs. 1,55,703.50 from the 2nd Defendant and issued the stamped receipt.
16. In her evidence, PW1 has stated that 2nd Defendant has not put up any additional construction, but only modified the front portion. PW1 would further state that 2nd Defendant did not have any source of income for construction of the shops. Stand of Plaintiffs is that 2nd Defendant did not have any source of income during the relevant period does not merit acceptance. From the evidence of DW1 and from Ex.D14-series, it is seen that during the year 1977, DW1 was employed as stenographer in Sell Sign Advertising Consultants and earned Rs. 170/-per month. DW1 had also employed in short spell in Small Causes Court, Chennai from 27.12.1978 to 18.04.1979 and thereafter employed in various private companies. 2nd Defendant got employment in Tuberculosis Research Centre, Chennai in 1983. In fact in Ex.D15-conduct certificate, it is seen that while 2nd Defendant was so working, he joined in the evening college in Pachaiyappa''s College during the academic year 1975 to 1979. In her evidence, PW1 herself has admitted that 2nd Defendant was employed in Small Causes Court, Chennai from 1978 and thereafter working in private company and then got employment in Tuberculosis Research Centre, Chennai in 1983. While so, it is futile to contend that the 2nd Defendant had No. independent income to construct the shops.
17. In his evidence, DW1 has stated that initially he was getting the rental income of Rs. 200/-per month and thereafter at Rs. 300/-per month from the shops. DW1 would say that from out of the rental income, he was maintaining his mother and the elder brother-Devasenapathy. In his evidence, DW1 has further stated that after the death of his father, he was the only person to look after his mother and also the mentally retarded elder brother and that he had incurred huge amount towards the medical expenses both to his mother till her death and also for his elder brother. Admittedly, late Devasenapathy was mentally ill.
18. Even though, PW1 has stated that she was also taking care of the mother-deceased 1st Defendant and elder brother-deceased Devasenapathy by sending money for their maintenance and for medical expenses, PW1 has not produced any documents to show such payments. Admittedly after her marriage in 1975, 1st Plaintiff (PW1) was living with her husband. Like wise, after her marriage in 1981, 2nd Plaintiff was also living with her husband. Even though Plaintiffs have alleged that they have spent money for maintenance and medical expenses of the deceased mother and the elder brother, Plaintiffs have not produced any documents. However, the question regarding the rental income and the expenses towards maintenance and medical expenses of deceased mother (1st Defendant) and the elder brother (Devasenapathy) remained to be seen.
19. Evidently, mother and brother of Plaintiffs and 2nd Defendant were living with the 2nd Defendant and 2nd Defendant has taken care of the mother and mentally retarded brother. It was stated that since 2nd Defendant has shouldered responsibility of maintaining the aged mother and mentally retarded brother, 2nd Defendant has got married only on 19.01.1995 at the age of 39 and it was thereafter, the 1st Plaintiff appears to have issued Ex.P2-notice on 18.09.1995. However, the income derived from the suit property and the expenditure incurred by the 2nd Defendant towards maintenance of mother and mentally retarded brother and their medical expenses are to be worked out at the final decree stage.
20. Upon consideration of evidence, the learned Judge has rightly held that Plaintiffs are entitled to partition and separate possession of their 1/3rd share each and passed preliminary decree for partition. Even though the learned Judge has passed the decree for rendition of accounts for the rental income derived from the suit property from the date of death of their father till handing over possession, the same will have to be examined in the light of the findings in this appeal.
21. M.P. No. 2 of 2009 in O.S.A. No. 303 of 2009 - This application has been filed by the Appellant-2nd Defendant under Order 14, Rule 8 of Original Side Rules read with Order 41, Rule 27 of CPC to receive the additional documents.
22. By consent of both sides, the application M.P. No. 2 of 2009 was taken up along with the appeal. 2nd Defendant sought to produce the (i) muhurtha pathirikkai; (ii) marriage invitation of the 1st Plaintiff and other documents to show that the marriage was performed during the life time of his father. Where No. reasons are stated as to why the documents were not produced before the trial Court, the application for production of such documents as additional evidence is liable to be rejected. Moreover, valid reasons must be shown why the documents sought to be produced were not produced before the trial Court. In the instant case, 2nd Defendant had not shown any ground as to why those documents were not filed during the trial itself. In the absence of any convincing reasons, the application to receive additional documents cannot be entertained and this application is liable to be dismissed.
23. In the result, the appeal is dismissed. Consequently, connected M.P. No. 1 of 2009 is closed. M.P. No. 2 of 2009 is also dismissed. No. costs.
