Madras High Court
Thirumoorthy @ Duraisamy vs Chinnaponnnan @ Arumugamn (Died) on 11 August, 2021
1 S.A.(MD)Nos.50 & 51 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.50 & 51 of 2012
In S.A.(MD)No.50 of 2012
1. Thirumoorthy @ Duraisamy
2. Shanmugam
3. Samikannu
4. Chandran
… Appellants / Appellants / Plaintiffs
Vs
1.Chinnaponnnan @ Arumugamn (Died)
2. Saroja
… Respondents / Respondents / Defendants
(Appellants 1 to 4 are recorded as Lrs of the deceased R1 as
per memo VSR No.568/12 dated 02.03.2012 is recorded
vide order dated 21.03.2012)
Prayer: Second appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 27.09.2011 made in A.S.No.24 of 2010 on the
file of Additional District Judge cum Fast Track Court, Dindigul,
confirming the judgment and decree dated 12.01.2010 made in O.S.No.
435 of 2003 on the file of Sub Court, Palani.
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For Appellants : Mr.R.Vijayakumar,
For R2 : Mr.S.Rajasekar
In S.A.(MD)No.51 of 2012
1.Chandran
2.Samikannu
3.Duraisamy … Appellants / Appellants / Defendants 2 to 4
Vs
1.Saroja ... Respondent / 1st Respondent / Plaintiff
2.Chinnaponnnan @ Arumugamn (Died)
… Respondents / 2nd Respondent / 1st Defendant
(Appellants 1 to 3 are recorded as Lrs of the deceased R2 as
per memo VSR No.869/12 dated 02.03.2012 is recorded
vide order dated 21.03.2012)
Prayer: Second appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 27.09.2011 made in A.S.No.25 of 2010 on the
file of Additional District Judge cum Fast Track Court, Dindigul,
confirming the judgment and decree dated 12.01.2010 made in O.S.No.
196 of 2008 on the file of Sub Court, Palani.
For Appellants : Mr.R.Vijayakumar,
For R1 : Mr.S.Rajasekar
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COMMON JUDGMENT
These second appeals are inter-connected. The appellants herein
filed O.S.No.435 of 2003 on the file of the Sub Court, Palani seeking
preliminary decree declaring that each of the plaintiffs are entitled to
1/5th share in the suit properties.
2. It is a suit for partition. The plaintiffs had arrayed their father as
first defendant and their aunt as second defendant. The suit properties
are comprised in two schedules namely 'A' and 'B'. 'A' schedule
properties are ancestral properties. The plaintiffs would contend that
apart from the agricultural income from 'A' schedule properties, the first
defendant did not have any other source of income. The second
defendant is the sister of the first defendant and they had purchased 'B'
schedule properties out of the income generated from the 'A' schedule
properties. While so, the first defendant executed a sale deed-Ex.B5
dated 22.08.2003 conveying his ½ share in schedule 'B' properties in
favour of the second defendant. The plaintiffs would contend that this
sale can be valid only to the extent of the first defendant's 1/5th share in
schedule 'B' property and that it cannot bind the plaintiffs. With these
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averments, while the plaintiffs filed O.S.No.435 of 2003 seeking
partition, the second defendant filed O.S.No.196 of 2008 seeking
permanent injunction. Both the suits were tried together. The father of
the appellants remained exparte. The second defendant in O.S.No.435 of
2003 filed written statement controverting the plaint averments.
Likewise, the appellants herein filed written statement contesting the
prayer for permanent injunction. Based on the divergent pleadings, the
trial court framed the necessary issues. The 3rd plaintiff Samikannu
examined himself as P.W.1. Ex.A1 to Ex.A4 were marked. The second
defendant Saroja examined herself as D.W.1. One Thangavel was
examined as D.W.2. Ex.B1 to Ex.B7 were marked. After consideration
of the evidence on record, the trial court by judgment and decree dated
12.01.2010 granted preliminary decree only in respect of 'A' schedule
properties. As regards 'B' schedule properties, the trial court dismissed
the suit. Aggrieved by the same, the plaintiffs filed A.S.Nos.24 & 25 of
2010 before the Additional District Judge cum Fast Track Court,
Dindigul. By the impugned judgment and decree dated 27.09.2011, the
first appellate court confirmed the decision of the trial court and
dismissed both the appeals. Challenging the same, these second appeals
came to be filed. Though these second appeals were filed way back in
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the year 2012, till date, they have not been admitted and only notice was
ordered.
3. The learned counsel appearing for the appellants reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial question of law and admit these appeals
and then, take them up 'for disposal'.
4. Per contra, the learned counsel appearing for the contesting
respondents submitted that the impugned judgments and decrees do not
call for any interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. As already pointed out, the contest is only regarding 'B' schedule
properties. The 'B' schedule properties were purchased in the joint names
of the first defendant and the second defendant under Ex.B1-sale deed
dated 21.10.1999. Later, the first defendant executed a sale deed-Ex.B5
dated 22.08.2003 conveying his ½ share in 'B' schedule item. The suit
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was filed on 25.11.2003. The only question that arises for consideration
is whether Ex.B5-sale deed is valid? There cannot be any dispute that
the first defendant as the kartha of the joint family had the power to
alienate the joint family property. The alienation has to be for family
necessity and such alienation would bind the interests of all the
undivided members of the family whether they are adults or minors
((2008) 16 SCC 785 (Baljinder Singh Vs. Rattan Singh))
6. The second defendant in her written statement had pleaded that
her son Raj had advanced a sum of Rs.60,000/- as loan to the first
defendant and only with that amount, 'B' schedule property was
purchased under sale deed dated 21.10.1999. The first defendant was
unable to repay the said loan. Thereafter, for family expenses and to
liquidate sundry deposit, a further sum of Rs.40,000/- was received from
the first defendant. Instead of repaying the said amount, the first
defendant sold his ½ share in schedule 'B' items under sale deed-Ex.B5
dated 22.08.2003. According to the second defendant, Ex.B5-sale deed
was executed for due consideration. The second defendant pleaded that
the first defendant alienated 'B' schedule property only for family
necessity. The second defendant also marked Ex.B3 and Ex.B4 and it
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can be seen therefrom that the fourth appellant Chandran had borrowed
money from one Karuppasamy who filed O.S.No.402 of 2002 on the file
of the Sub Court, Palani. He also filed I.A.No.855 of 2002 and attached
the suit properties. In I.A.No.1235 of 2002, it was found that the
schedule 'B' items belonged to the defendants herein in their independent
capacity and hence, attachment effected in respect of schedule 'B'
properties was raised. It is safe to assume that the plaintiffs 1 to 3 were
very much aware of the said finding as well as the stand taken by the
parties in O.S.No.402 of 2002 filed by the said creditor Karuppasamy. If
in a third party suit, schedule 'B' property belonged to the defendants
only and that the appellants did not have any share, the character of the
said property will remain the same in the partition suit filed by the
appellants also. The ½ share of the 1st defendant will not now acquire a
joint family character. In these circumstances, the courts below came to
the conclusion that the schedule 'B' properties are the self acquired
properties of D1 and D2 and that the first defendant can very well convey
his ½ share to the second defendant. This is a pure finding of fact and it
is not erroneous or un-sustainable. No substantial question of law arises
for consideration.
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7. Both the second appeals stand dismissed. No cost.
11.08.2021
Index : Yes / No
Internet : Yes/ No
rmi
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Additional District Judge cum Fast Track Court, Dindigul.
2.The Sub Court, Palani.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
rmi
S.A.(MD)Nos.50 & 51 of 2012
11.08.2021
https://www.mhc.tn.gov.in/judis
