SHANTHA MANI Vs. PALANIAMMAL

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 241 of 1993 on the file of the Court of i Additional District Court, Salem. The plaintiffs in o. S. No. 69 of 1985 on the file of Court of Sub Court, sankari are the appellants herein. The plaintiffs who have lost their case before the Courts below have preferred this second appeal.

(2.) THE short facts of the case of the plaintiffs in the plaint relevant for the purpose of deciding this appeal are as follows: the plaintiffs are the daughters of Ramasamy Chettiar, who is the brother of the first defendant. The first defendant had two more brothers by name Venkatappa Chettiar and rangasamy Chettiar. The said four brothers were members of a joint family. The plaintiffs' father and his brothers partitioned their joint family properties on 9. 12. 1940 under a registered partition deed. Thus,the status of the joint family between the said brothers came to an end and thereafter they have been doing business of their own and were acquiring properties in their own names. The plaint schedule property was purchased by the plaintiffs' father ramasamy Chettiar for proper and valid consideration on 14. 1. 1953 under a registered sale deed from one Subramania chettiar and his sons. From the date of purchase, Ramasamy chettiar was paying land tax to the suit property and was also in possession and enjoyment of the same and has improved the suit property considerably. The first defendant who is none other than the paternal uncle of the plaintiffs owns two houses bearing Door Nos. 3 and 5 in seeranga Chettiar Street in Komarapalayam and is living there with his family. The said houses are situate in a narrow street with no proper access for vehicular use. The two houses of the first defendant are not contiguous and the houses were not sufficient for the accommodation of the first defendant and his family. The first defendant approached the plaintiffs' father in or about January 1972 requesting him to permit the first defendant to occupy the suit property,which is a house, till lthe first defendant could construct a convenient house of his own for his family use. Considering the relationship and the fact that the suit property was vacant, the plaintiffs' father permitted the first defendant in January 1982 to occupy the suit house, and the first defendant in pursuance of the said permission occupied the suit house and promised to vacate the suit house as and when he put up a separate house. Thus, the first defendant was inducted in possession of the house as a licensee.

(3.) DEFENDANTS 1 and 2 have filed a joint written statement contending as follows: the plaintiffs are the daughters of Ramasamy Chettiar, who is the brother of the defendant. The defendant has two more brothers by name Vengadappa Chettiar and Rangasamy Chettiar. The said four brothers including their father v. R. Sikkappaiah Chettiar of Komarapalayam were members of a joint Hindu undivided family which owned certain properties. The defendant and his two brothers were doing business in malaysia and making regular remittance out of their business earnings in Malaysia to the said Ramasamy Chettiar who was at that time at Komarapalayam in India. The said ramasamy Chettiar was also simultaneously doing business at komarapalayam purely out of the funds received from his brothers on behalf of the joint family. For convenience, most of the properties were purchased in the name of the said Ramasamy Chettiar. Thus, they were holding all such properties as tenants-in-common. Each member of the joint family held certain properties in their possession and continued to enjoy the same. In this manner, the defendant had two houses in Seeranga Chettiar Lane in his possession. Similarly the suit property at Door No. 18, Cauvery Street, komarapalayam was also one of the properties that was in the defendants' possession and peaceful enjoyment. Thus, the defendant has been in an uninterrupted possession continuously and peaceful possession enjoyment of the same right from 1955 till now. The defendant had entered into an agreement with his neighbour M. S. Sabapathy Mudaliar for making some additions and alterations in their premsies on 24. 11. 1956. He has been regularly paying the land tax of the suit house to the Appurajarpalayamchatram Trustees at komarapalayam to whom the land belongs. He has also been regularly paying the house tax in respect of the suit property to the Komarapalayam Town Panchayat and later to municipality. There was oral partition in 1968, according to which the shares of each member of the joint family including the said Ramaswamy Chettiar was expressed clearly in equal numerical divisions in the form of schedule as prepared at that time. As such the suit property was one of the properties that come to the defendant's share and thus he acquired and became the absolute owner of the suit property and has been in continuous possession and enjoyment of the same till now. The defendant has thus acquired right, title or interest over the suit property and nobody else. The partition was subsequently confirmed by a panchayat Award given on 13. 4. 1973 among the four brothers including the plaintiffs' father. Therefore, the defenant is only the absolute owner of the suit property and nobody else.