A.S.No.74 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.74 of 2013
and
M.P.No.1 of 2013
1.P.A.Kolandaivel
2.Vijayakumar ... Appellants
Versus
1.Kavitha
2.Natarajan (died)
3.N.Bakkiam
4.N.Senthil Kumar ... Respondents
[R3 & R4 brought on record as Lrs of the deceased R2
vide order of Court dt. 16.12.2019 made in
C.M.P.Nos.23549, 23550 & 23551 of 2019]
Prayer : Appeal Suit filed under Section 96 of C.P.C against the Judgment and
Decree of the Principal District Judge, Namakkal in O.S.No.116 of 2011, dated
26.09.2012.
For Appellant : Ms.T.Surekha
For R1, R3 & R4 : Notice served – No appearance
For R2 : Died
https://www.mhc.tn.gov.in/judis
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A.S.No.74 of 2013
JUDGMENT
The unsuccessful 1st and 2nd defendants are the appellants in the Appeal Suit.
2.For the sake of convenience, the parties are referred to as per their array of parties in the suit.
3.The plaintiff is the daughter of the 1st defendant, the 2nd defendant is the son of the 1st plaintiff, the 3rd defendant is the co-brother of the 1st defendant. While so, the daughter/plaintiff filed a suit for partition claiming a 1/6 th share in Item No.1 of the suit schedule property and 1/3 rd share in Item No.2 of the suit schedule property and for an injunction not to disturb her possession and enjoyment in respect of Item No.2 of the suit schedule property.
4.The case of the plaintiff is that the 1st defendant's father being the Kartha of the family had sold joint family properties in the year 1971. Out of the funds received from the said sale, had purchased Item No.1 of the suit schedule property jointly by a sale deed dated 23.10.1973. Thereafter, again from the income arising out of the joint family property, he purchased Item No.2 of the suit schedule property on 25.06.1993. Even though the plaintiff is https://www.mhc.tn.gov.in/judis 2/12 A.S.No.74 of 2013 the daughter entitled for a share, without partitioning and giving her due share, the 1st and 2nd defendants being the father and brother of the plaintiff attempted to alienate the property without giving any share to the plaintiff and therefore, the plaintiff filed the present suit.
5.A written statement was filed by the 2nd defendant, namely the brother of the plaintiff. The said written statement was adopted by the 1st defendant/father. The contention of the defendants 1 and 2 is that the property in Item No.1 of the schedule was purchased out of the self-earned money along with the 3rd defendant, who was the co-brother of the 1st defendant and therefore, was not a joint family property. Item No.2 of the suit schedule property was alloted to the 1st defendant being the Ex-Serviceman and the same was purchased by him by his own earning and therefore, it was also not a joint family property and therefore, they prayed for dismissal of the suit.
6.The 3rd defendant filed a separate written statement, in which, he claimed that as far as second Survey No.57/2 mentioned in Item No.1 of the suit schedule property is concerned, though the said two properties along with other properties were brought jointly by himself and the 1st defendant, after selling a few items of the properties purchased by them in the year 1973, two https://www.mhc.tn.gov.in/judis 3/12 A.S.No.74 of 2013 items i.e., S.Nos.105 & 57/2 remained. Since they could not jointly enjoy the property, initially S.No.105/2 was alloted to the 3rd defendant by way of oral arrangement and S.No.57/2 was alloted to the 1st defendant. Since there were difficulties in enjoying the property thereafter also they exchanged both the items and therefore, S.No.57/2 belongs exclusively to him. He is in enjoyment and possession of the same. On the said pleadings, the Trial Court framed the following issues :-
“1.Whether the Plaintiff is entitled to 1/6th share in item 1 of the property and 1/3rd share in the 2nd item properties ?
2. Whether the properties are joint family properties of the 1st defendant ?
3. Whether the properties are self acquired properties to the 1st defendant ?
4. To what relief if any the plaintiff is entitled to ?”
7.On the said issues, the parties let in evidence. The plaintiff examined herself as P.W.1. The sale deed dated 07.06.1971 selling the joint family properties was marked as Ex.A1. The sale deed for purchase of Item No.1 of the suit schedule property dated 23.10.1973 was marked as Ex.A2. The sale deed dated 25.06.1993 for purchase of Item No.2 of the suit schedule property was marked as Ex.A3. The sale deed by which, the 1st and 3rd defendant sold part of the properties purchased by them in the year 1973 dated 09.10.2000 was https://www.mhc.tn.gov.in/judis 4/12 A.S.No.74 of 2013 marked as Ex.A4. The release deed being in the nature of partition between the 1st and 3rd defendants in respect of the properties was marked as Ex.A5.
8.Thereafter, on behalf of the defendants, 2nd defendant i.e., the brother of the plaintiff was examined as D.W.1. The 3rd defendant examined himself as D.W.2. One Thiru.Subramanian, who is acquainted with the family of the parties, was examined as D.W.3, who spoke the fact about the exchange of land between the defendants 1 and 3. On behalf of the defendants, Gift/ Settlement deed dated 22.10.2010 was marked as Ex.B1 and the electricity receipt was marked as Ex.B2. The deed of exchange between the defendants 1 and 3 dated 22.12.2000 was examined as Ex.B3. The plaint filed in the connected suit between the defendants 1 and 3 in O.S.Nos.54 & 79 of 2011 were marked as Ex.B4 and B5. The sale deed dated 08.02.1993 for purchase of some more properties was marked as Ex.B6. The written statement filed in O.S.No.79 of 2011 was marked as Ex.B7.
9.Thereafter, the Trial Court proceeded to hear the learned counsel on either side and by a judgment dated 26.09.2013, after appraising the evidence on record held that the second extent of property mentioned in Item No.1 of the https://www.mhc.tn.gov.in/judis 5/12 A.S.No.74 of 2013 suit schedule property, namely S.No.57/2, belonged to the 3rd defendant and therefore, is not a joint family property and it is not available for partition. The Trial Court held that on a perusal of Ex.A1, sale deed that the joint family properties were sold and from the fact that the 1st defendant being the Kartha did not get into the box and adduce evidence that it is a self acquired property, found that the other extent of land in Item No.1, that is, S.No.105 belonged to the joint family. Similarly, the Trial Court held that since the Item No.1 of the property is a joint family property, being the land, since income has also arisen out of it, Item No.2 of the property purchased by the 1st defendant will also be a joint family property. Accordingly, it decreed the suit in part by granting 1/3rd share to the plaintiff in the said items of the property. Aggrieved by the same, the defendants 1 and 2 are before this Court by way of filing the present appeal.
10.Heard Ms.T.Surekha, learned Counsel appearing on behalf of the appellants.
11.Even though the notice is served, none appeared on behalf of the respondents.
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12. The learned Counsel taking this Court through Ex.A1, sale deed, would submit that firstly even under Ex.A1, sale deed, it cannot be concluded that what is sold is a joint family property, the sale deed also says that the property sold are the self acquired properties of the vendors. Even otherwise, it may be seen that the total sale consideration in Ex.A1, sale deed was Rs.18,000/-. As per the sale deed itself, the entire property sold towards the payment of debts. The purchasers themselves had advanced a sum of Rs.10,000/- by way of a promissory note and Rs.10,000/- of the sale consideration is adjusted towards the same and it is expressly mentioned in the sale deed that the balance sum of Rs.8,000/- is towards miscellaneous debts of the vendors. Therefore, she would submit that on the face of the document under Ex.A1, it cannot be contended firstly that there was nucleus from joint family property and secondly, the sale consideration was there for the 1st defendant to purchase out of the same.
13. She would further submit that it is the admitted case of the parties that the 1st defendant is an Ex-Serviceman, therefore, having his independent income, viz., salary as well as pension, the 1st defendant need not get into the box and establish. He can otherwise establish also. Only because the 1st defendant was aged 75 years at the time of trial, he was unable to get into the https://www.mhc.tn.gov.in/judis 7/12 A.S.No.74 of 2013 box and the 2nd defendant being the son was examined, that does not mean that the 1st defendant did not defend this issue, when a written statement is duly filed and the plaintiff was cross examined and other evidence has been let in on behalf of the 1st defendant also, the Trial Court erred as if the 1st defendant did not contest the issue.
14.Further, the learned Counsel would submit that in this case, the property was also jointly purchased with the 3rd defendant. The 3rd defendant has also let in evidence to the fact that the properties were purchased from their own funds and they were in exclusive enjoyment and the property in question. S.No.105 was obtained by way of deed of exchange dated 22.12.2000 and therefore, cannot be said to be of coparcenary in character. Therefore, she would submit that the Trial Court erred in decreeing the suit.
15.I have considered the submissions made on behalf of the appellants and perused the material records of the case.
16.Firstly, in this case, evidently the title in respect of both the properties stands in the name of the 1st defendant. The plaintiff has filed the suit alleging that the properties were purchased out of the joint family nucleus. Therefore, it https://www.mhc.tn.gov.in/judis 8/12 A.S.No.74 of 2013 is for the plaintiff to discharge initial onus to prove that no joint family nucleus was available and once that initial onus is discharged, the 1st defendant being the Kartha, it is his onus to prove that it is his separate property and not joint family property. With that background in mind, it can be seen from Ex.A1 itself, as rightly pointed out by the learned counsel for the appellants, there was no any joint family nucleus left out of Ex.A1. This apart, the property in schedule Item No.1 was purchased two years after the said sale and admittedly, in this case, 1st defendant is an Ex-Serviceman having his independent salary as well as pension.
17.In that view of the matter, in this case, I am of the view that the plaintiff has not discharged her onus to prove the availability of the joint family nucleus. As a matter of fact, the evidence produced by the plaintiff in the form of Ex.A1 would only nullify the case of the plaintiff. Therefore, when the initial onus itself is not discharged, there was no question of the 2nd defendant proving that the property was his separate property and not a joint family property.
18.In that view of the matter, the finding of the Trial Court that the 1st defendant did not get into the box and prove that the properties were separate properties is erroneous and I am not in a position to agree with the same. https://www.mhc.tn.gov.in/judis 9/12 A.S.No.74 of 2013 Admittedly, the 1st defendant had independent income. As a matter of fact, 2nd item of the suit property is alloted to the 1st defendant under the Ex-Serviceman quota and therefore, under no stretch of imagination, it can be held to be joint family property. In that view of the matter, the findings of the Trial Court that there was joint family nucleus and that the 1st defendant did not get into the box and prove his case are unsustainable.
19.In view of my aforesaid findings, I am of the view that the answers of the Trial Court in respects of issue Nos.1 to 4 are liable to be interfered with. I answered Issue No.1 that the plaintiff is not entitled to any share in the Item Nos.1 and 2 of the properties in the suit. I answered Issue No.2 that the property in S.No.105, Kurukapuram Village as well as Item No.2 of the suit schedule property being plot No.16, Thirumangalam Village, Anna Nagar, Chennai are absolute properties of the 1st defendant and not joint family properties. The said answers covers the issue No.3 also. In view of my answers for the issue Nos.1 to 3, the Issue No.4 is answered that the plaintiff is not entitled for any relief.
20.In the result, the Appeal Suit is allowed and the judgment and decree of the learned Principal District Judge, Namakkal dated 26.09.2012 in https://www.mhc.tn.gov.in/judis 10/12 A.S.No.74 of 2013 O.S.No.116 of 2011 is set aside and consequently, the suit in O.S.No.116 of 2011 shall stands dismissed. However, considering the facts and circumstances of the case and the relationship between the parties, there shall be no order as to costs.
15.09.2022 Index : yes/no Speaking/Non-Speaking order sp To The Principal District Judge, Namakkal.
https://www.mhc.tn.gov.in/judis 11/12 A.S.No.74 of 2013 D.BHARATHA CHAKRAVARTHY, J., sp A.S.No.74 of 2013 15.09.2022 https://www.mhc.tn.gov.in/judis 12/12