Madras High Court
Pazhaniammal vs Ramanathan on 9 August, 2021
SA NO.303 OF 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SA NO.303 OF 2016
AND
CMP NO.5683 OF 2016
Pazhaniammal ... Appellant
Vs.
1.Ramanathan
2.Pushparaj
3.Krishnan
4.D.Murugan
5.G.Deepa ... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil
Procedure Code against the Decree and Judgment passed in A.S.No.34 of
2013 dated 30.10.2015 on the file of the First Additional District &
Sessions Judge, Vellore, reversing the Decree and Judgment passed in
O.S.No.296 of 1997 dated 13.08.2012 on the file of the Additional District
Munsif Court, Vellore.
For Appellant : Ms.R.T.Sundari
For Respondents : Mr.G.Poongundran
https://www.mhc.tn.gov.in/judis
1/10
SA NO.303 OF 2016
JUDGMENT
This Second Appeal has been preferred against the reversing
judgment of the lower Appellate Court.
For the sake of convenience, the parties are called with respect
to their status in the Suit.
2.The plaintiff is the appellant herein. The plaintiff filed a Suit
for declaration and injunction on the basis of the Settlement Deed
executed by her husband in her favour. The defendants have filed a written
statement claiming the Suit property as a joint family property and
contested the case. The Trial Court has framed appropriate issues and
decreed the Suit in favour of the plaintiff. Against which, the defendants
preferred an appeal, wherein, the Lower Appellate Court has reversed the
decree holding that the property is a joint family property. Against which,
the present Second Appeal has been filed.
3.The short facts leading to the Suit are as follows:-
According to the plaintiff, the Suit property in Survey No.87/7
in Perumugai Village, measuring an extent of 0.20.0 Hec. was assigned in
favour of her husband by the Tahsildar, Vellore, on 10.10.1988 and Patta
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
was issued in his favour vide Patta No.383. He settled the property in
favour of the plaintiff by a registered Settlement Deed dated 12.03.1996.
Ever since, she was in possession and enjoyment, whereas, the defendants,
who are the brothers-in-law of the plaintiff, trespassed into the property
and damaged the trees. Thereafter, the plaintiff issued a legal notice on
18.02.1997, which was replied by the defendants denying her title, on
05.03.1997. Hence, she filed a Suit for declaration and injunction.
4.The defendants filed a written statement that the property is a
joint family property belonging to the plaintiff's husband as well as the
defendants. According to them, originally, the property was possessed and
enjoyed by the father of the plaintiff's husband and defendants 1 to 4 and
husband of the 5th defendant. He was issued with a B Memo. After his
demise, the assignment was given in favour of the plaintiff's husband, who
was the eldest son and Kartha of the family. The property was in joint
possession and enjoyment of the family. The plaintiff's husband has orally
partitioned the property. Therefore, the Suit property is a joint family
property and the Settlement Deed executed in favour of the plaintiff is
invalid and un-executable. The possession is with them and therefore, the
plaintiff is not entitled to the relief.
5.The Trial Court considering the assignment patta dated dated
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
10.10.1988 marked as Ex.A1 , Ex.A2 – Chitta and Adangal extracts,
Ex.A3 – Kist receipts and the Settlement executed in favour of the
plaintiff vide Ex.A4 and Patta Passbook marked as Ex.A5, has granted
decree in favour of the plaintiff. However, the Lower Appellate Court,
considering the admission made by the plaintiff as P.W.1 that the land was
alloted to her father-in-law as village menial and patta was issued in
favour of her husband as head of the family and that they were living as
joint family for 30 years. The Lower Appellate Court also considered
Ex.B1 – “B” Memo issued in the name of the father of the parties, for the
same extent in the same survey number and also the account books,
discharge of debt through promissory notice vide Exs.B3, B4 and B6, has
arrived at a conclusion that it was a joint family property and therefore,
reversed the judgment of the trial Court.
6.I have heard the rival submissions made by the learned
counsel on either side.
7.The admitted fact remains that the property in S.No.87/7,
Perumugai Village, was originally in occupation of the plaintiff's father-
in-law and the defendants' father and “B” Memo was also issued in his
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
favour. On 10.10.1988, an assignment was given in the name of the
plaintiff's husband, namely, Saminathan. Chitta, Patta and Kist Receipts
vide Ex.A2 and Ex.A3 stood in the name of Saminathan. Therefore, what
is to be proved is whether that property was allotted to him as a Kartha of
the family and it belongs to the joint family or not? Even though the
defendants have claimed the property as a joint family property, they have
not filed any document to prove their possession after the division of
status from the year 1992.
8.The first defendant who deposed as D.W.1 in his evidence
would state that the plaintiff's husband and his family members were sent
out of the joint family three years after the father's death. Their father died
in the year 1984. Admittedly, from 1992, the plaintiff and her family and
the defendants were living separately. Once the division of status has
come in, burden is cast upon the defendants to show that they were also
jointly enjoying the suit property as joint family property. However, the
defendants have marked only the documents, which were prior to 1988,
namely, Kist Receipts of the year 1980 as Ex.B1, Ration Card as Ex.B2
and discharge of Promissory Note of the year 1986 and 1988 as Ex.B3 and
Ex.B3. These documents, which were prior to 1992 would only show that
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
all the parties were living together as joint family.
9.The crux of the issue is as to whether after the division of the
status in the year 1992, the defendants were in joint possession of the
property or not? Ex.B5 is the complaint given by fifth defendant and
mother of defendants 1 to 4 to the Village Panchayat's President dated
15.06.1997, wherein it is categorically stated that the plaintiff's husband
was in possession of the property and in spite of the several requests, they
refused to agree for partition of the same. He would state that the Patta
stands in the name of his wife and that he was not agreeing for partition.
From Ex.B5, it is clear that the property was not partitioned and the same
was in possession of the plaintiff's husband and he refused to agree for
partition. Furthermore, patta stands in the name of his wife, the plaintiff
herein. Once the defendants got the knowledge about the execution of the
Settlement Deed and for transfer of patta, they should have taken steps to
challenge the transaction. Apart from this, the legal notice dated
18.02.1997 - Ex.A7 and reply notice dated 05.03.1997 - Ex.A9 clearly
disclose the fact that the Settlement Deed was executed in favour of the
plaintiff by her husband in the year 1996. Therefore, the defendants, ought
to have taken legal action against the plaintiff and her husband, for
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
transferring the alleged joint family property in favour of his wife,
whereas, no such steps were taken. Only when the Suit was filed for
declaration, they have taken the defense that it was a joint family property.
10.As discussed above, the documents marked as Ex.B1 to
Ex.B6, which are the Kist Receipts of the year 1980, Ration Card,
Promissory Note of the year 1988 will not prove any possession of the
defendants, after 1992. Ex.B5 - “B” Memo on the other hand proves the
possession of the plaintiff's husband over the period. Insofar as Ex.A4 -
Settlement Deed is concerned, it was registered and acted upon. Patta was
also granted in favour of the plaintiff vide Ex.A5. This Patta Passbook as
well as the Settlement Deed were not challenged till date in spite of having
knowledge about the same.
11.Now that, it is to be seen as to whether the Settlement is valid
and enforceable. The plaintiff's husband, who deposed as P.W.3 would
clearly state that the property is his personal property and it was not
assigned as a joint family property and that he was in separate possession
and enjoyment and settled it in favour of his wife on 12.03.1996. Once the
settlement is proved, the plaintiff becomes the owner of the property. By
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
Ex.A5 and Ex.A6, it is proved that the Settlement was acted upon and
possession was taken over by the plaintiff. In that event, the plaintiff will
be entitled to declaration of title and injunction restraining the defendants
from interfering with her possession.
12.The finding of the Lower Appellate Court that the ration card
and discharged promissory notes when conjointly considered in Ex.B1,
“B” Memo is concerned, the documents are prior to 1988 when all the
parties were living as a joint family. After the death of the father of the
defendants, the assignment was given to the husband of the plaintiff.
There is a long gap of four years between the death of the father of the
defendants and the assignment in favour of the plaintiff's husband.
Thereafter, after the division of joint family in the year 1992, the plaintiff's
husband started enjoying the property in his individual capacity and there
was no proof on the side of the defendants to show that on and after 1992,
they were in joint possession and enjoyment of the suit property. In the
absence of the same, the finding of the Lower Appellate Court that it is a
joint family property holds no water. D.W.3, who deposed about the status
of the joint family, did not speak about the possession and enjoyment of
joint family. This evidence does not fortify the claim of the defendants.
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
Therefore, the finding of the Trial Court that it is a separate property of the
plaintiff's husband and it is validly settled in favour of the plaintiff is
correct. Therefore, the question of law No.1 that whether it is a self
acquired property of the person in whose favour it is granted by the
Government is concerned, it is answered in favour of the appellant /
plaintiff. In view of the above finding, the second question of law is also
answered in her favour.
13.It is hereby declared that the Suit property is not a joint
family property and the finding of the Lower Appellate Court is liable to
be set aside and accordingly, the judgment and decree dated 30.10.2015
passed in A.S.No.34 of 2013 by the learned First Additional District and
Sessions Judge, Vellore is set aside and the suit is decreed as prayed for.
14.In fine, the Second Appeal is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
09.08.2021
Index : Yes/No
Internet : Yes/No
TK
https://www.mhc.tn.gov.in/judis
SA NO.303 OF 2016
M.GOVINDARAJ, J.
TK
To
1.The First Additional District & Sessions Judge
First Additional District & Sessions Court
Vellore.
2.The Additional District Munsif
Additional District Munsif Court
Vellore.
SA NO.303 OF 2016
09.08.2021
https://www.mhc.tn.gov.in/judis
