Madras High Court
M.Sundarajan vs Tmt.Vasantha .. 1St on 8 December, 2021
AS.No..334/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.12.2021
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AS.No.334/2018
1.M.Sundarajan
2.Tmt.A.Selvakumari .. Appellants /
Defendants 3 & 5
Versus
1.Tmt.Vasantha .. 1st Respondent
/ Plaintiff
2.Tmt.Periyanayagam
3.Kalairani
4.M.Chandrasekaran
5.Kannan
6.Mohan
7.Prema
8.Padmanaban
9.Anand
10.The Sub Registrar,
O/o.The Sub Registrar Office
Tharamangalam
Salem District. .. RR2 to 10 /
Defendants 1,2,4,6
to 11
https://www.mhc.tn.gov.in/judis 1
AS.No..334/2018
Prayer:- Appeal Suit filed under Section 96 and Order XLI Rule 1 CPC
against the judgment and decree dated 04.11.2017 passed in
OS.No.108/2014 on the file of the learned II Additional District Judge,
Salem and dismiss the same.
For Appellants : Mr.B.Manivannan
For R1 : Mr.T.Murugamanickam
Senior Counsel for
M/s.Zeenath Begum
For RR2 to 4 : Mr.Balan Rangasamy
For RR5 to 10 : No appearance
JUDGMENT
(1) Defendants 3 and 5 in the suit in OS.No.108/2014 on the file of the
learned II Additional District Judge, Salem, are the appellants
herein.
(2) The 1st respondent in this Appeal, as plaintiff filed the suit in
OS.No.108/2014 for partition of 1/6th share in the suit properties
and for other consequential reliefs. The suit is also for permanent
injunction restraining defendants 3 and 5 from in any manner
alienating or encumbering the properties and for mandatory
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injunction directing defendants 8 and 11 to deposit the monthly
rent payable by them to the credit of the suit.
(3) The plaintiff and defendants 1 to 4 and the husband of the 5th
defendant by name Thiru.Venkatesan are the daughters and sons of
late Thiru.Marimuthu Mudhaliar and Saradhambal. Defendants 6
and 7 are the sons of the deceased brother of plaintiff and
defendants 8 to 11 are the tenants in the suit properties.
(4) Suit properties consist of two items. While first item is the land
with building in Sannathi Street, Tharamangalam Village, the
second item is also another building in Periyamariyamman Street.
(5) The case of the plaintiff is that the suit properties belonged to late
Thiru.Marimuthu Mudhaliyar who died intestate on 17.05.2011,
leaving behind the plaintiff and other legal heirs. It is admitted that
the plaintiff's mother Tmt.Saradhambal also died on 26.04.2012. It
is stated by the plaintiff that she demanded the 3rd defendant who is
the eldest son of late Thiru.Marimuthu Mudhaliyar orally and that
the 3rd defendant though received rents from all the tenants after the
demise of late Thiru.Marimuthu Mudhaliyar, did not agree either
AS.No..334/2018
to divide the property into six equal shares or to share the income
with the plaintiff and other legal heirs. It is stated that a legal notice
was issued by the plaintiff and the 3rd defendant sent a reply. It is
contended by the plaintiff that the contentions of the 3rd defendant
in the reply are false. Even in the plaint, it is stated that the 3 rd
defendant is receiving a sum not less than Rs.25,000/- per month as
on the date of filing the suit by way of rent from the tenants.
(6) The suit was contested by the 3rd defendant by filing a written
statement which was adopted defendants 5, 6 and 7. In the written
statement, the defendants disputed the plaintiff's case that the
properties belonged to late Thiru.Marimuthu Mudhaliyar, It is
contended that late Thiru.Marimuthu Mudhaliyar was declared as
an insolvent in an Insolvency proceedings in the year 1967 and died
without acquiring any property. Though it is admitted that the suit
first item of property was purchased in the name of the deceased
brother Thiru.M.Venkatesan by virtue of the Sale Deed dated
16.02.1990, it is contended that the property was purchased out of
the funds provided by the 3rd defendant. Even in the written
AS.No..334/2018
statement, it is admitted that the legal heirs of the plaintiff's
deceased brother Thiru M.Venkatesan, executed a Sale Deed on
10.10.2008 in favour of his father late Thiru.Marimuthu
Mudhaliyar. As regards second item of suit property, it is the case
of the 3rd defendant that the 3rd defendant spent huge amount of
Rs.6,00,000/- for carrying out several repairs and additional
constructions and for painting house. It is also stated by the
contesting defendant in the written statement that the building in
the first item was constructed by the 3rd defendant out of his own
money. In sum and substance, it is the case of the defendants that
the first item of the suit property is the self acquired property of the
3rd defendant and that the 3rd defendant is entitled to the
expenditure that he has incurred for the additional works and
repairs carried out in the suit second item.
(7) The Trial Court after framing necessary issues found that both
items of suit properties belonged to the father late
Thiru.Marimuthu Mudhaliyar and that the plaintiff is entitled to
1/6th share. As regards the case of the 3rd defendant that he had put
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up the entire construction in the suit first item and carried out
repairs in the building in the suit second item, the Trial Court found
that the 3rd defendant failed to prove his case. Hence, suit was
decreed as prayed for by granting 1/6th share in all the suit
properties to the plaintiff. The other reliefs regarding permanent
injunction and mandatory injunction were also granted by directing
the tenants to deposit the monthly rent till a final decree is passed.
Aggrieved by the judgment and decree, defendants 3 and 5 have
preferred the above Appeal Suit.
(8) The learned counsel for the appellants/defendants 3 and 5 referring
to the grounds, made the following submissions:-
(a) The suit first item was purchased under the document Ex.B4 dated
10.10.2008 in the name of father. However, late Thiru.Marimuthu
Mudhaliyar was declared as an insolvent in the year 1967 and the
plaintiff has miserably failed to prove the source of income of their
father to purchase the property.
(b) The Lower Court failed to consider the fact that the building in the
suit first item was constructed by the 3rd defendant at a huge cost of
AS.No..334/2018
nearly Rs.25 lakhs in the year 2009 and the evidence adduced by the
3rd defendant was not considered by the Trial Court.
(c) The plaintiff in the course of evidence admitted that she did not
contribute any money towards construction of the building in the suit
first item and that the plaintiff has not let in any evidence to show
that consideration for the property purchased under Ex.B4 was from
their father late Thiru.Marimuthu Mudhaliyar.
(d) The appellants examined DW2, the Contractor and marked
vouchers to prove that money was spent by the 3rd defendant to
construct the building in the suit first item. Similarly, the Contractor
has given oral evidence to the effect that he constructed the building
with the money paid to him by the 3rd defendant. However, the Trial
Court ignored the evidence of DW2 on the ground that the
Contractor has failed to give evidence as to the commencement and
conclusion of construction in suit first item.
(9) Per contra, the learned counsel appearing for the respondent
contended that the burden lies heavily on the 3 rd defendant to prove
his contentions and that the evidence adduced by the 3rd defendant
AS.No..334/2018
alone is not sufficient to come to the conclusion that the first item of
the suit properties was purchased out of the money provided by the
3rd defendant. Learned counsel also referred to the statements
found in the written statement and the nature of evidence let in by
the defendants and submitted that the findings of the Trial Court
are wll founded and there is no irregularity or perversity in the
findings of the Lower Court.
(10) This Court has considered the rival submissions and also perused
the materials placed.
(11) Having regard to the nature of the pleadings and the arguments, the
following points arise for consideration in this Appeal Suit:
i. Whether the suit first item was purchased out of the funds
provided by the 3rd defendant?
ii. Whether the building in the suit first item was constructed
by the 3rd defendant out of his own funds without any
contribution from any of the sharers and whether the 3rd
defendant can recover the amount stated to have been
spent by him for the construction of the building in the
suit first item in the present suit for partition?
AS.No..334/2018
iii. Whether the 3rd defendant proved his claim that he had
spent Rs.6 lakhs for the suit second item and what relief
the 3rd defendant can be given if the expenses incurred by
him is proved?
(12) From the facts admitted, it is seen that the suit first item originally
belonged to the family of late Thiru.Marimuthu Mudhaliyar.
However, it was attached and sold in execution of a decree obtained
by a third party. Subsequently, the first item of property was
purchased in the name of Thiru M.Venkatesan under Ex.B3 dated
16.02.1990. The same property was later sold to the father late
Thiru.Marimuthu Mudhaliyar, under Ex.B4 dated 10.10.2008, by
the legal heirs of Thiru.M.Venkatesan, who pre-deceased late
Thiru.Marimuthu Mudhaliyar. When the property stands in the
name of late Thiru.Marimuthu Mudhaliyar,there is a presumption
that the property was purchased out of the funds provided by
father, Marimuthu Mudhaliyar. This Court is unable to find a
reason as to why the property was not purchased in the name of the
3rd defendant if really the funds were provided only by the 3rd
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defendant. Absolutely there is no explanation from the 3rd
defendant in the course of evidence, why the property was
purchased in the name of deceased brother and subsequently sold
in favour of father.
(13) The 3rd defendant has not produced any evidence to show his
independent income at the time of acquiring the property originally
under Ex.B3 in the year 1990. As a matter of fact, there is no
pleading with regard to the business conducted or the income of the
3rd defendant. Even in the written statement, it is admitted that the
parents of the plaintiff and defendants 1 to 5 were receiving rents
from the tenants to maintain themselves. This admission is crucial
and very much relevant in the context of further pleadings raised by
the 3rd defendant in the written statement.
(14) The 11th defendant also filed a written statement. He is a tenant in
respect of the suit property. The 11th defendant is the Sub Registrar
of Tharamangalam. Therefore, it is seen that a portion of the suit
property was leased/rented out to the Sub Registrar's office for a
sum of Rs.4700/- per month. It is stated that the tenancy was
AS.No..334/2018
between the 11th defendant and late Thiru.Marimuthu Mudhaliyar.
It is also stated that none of the heirs of late Thiru.Marimuthu
Mudhaliyar claimed rent amount from the 11th defendant and
therefore, the 11th defendant expressed his willingness to pay the
monthly rent at the rate of Rs.4700/- from March 2011. The
statement of tenant that the property was let out by father disproves
the case of the appellants.
(15) Having regard to the facts admitted as borne out from records, this
Court is unable to find any reason to hold that the suit property is
the self acquired property of the 3rd defendant. Assuming that the
3rd defendant has contributed for the purchase of the property, this
Court cannot consider him as the owner of the property.
(16) As regards the contention of the 3rd defendant that he has put up the
entire construction in the suit first item out of his own funds, the 3 rd
defendant cannot claim proprietory right over the property. At best,
he is entitled to claim contribution from the other sharers. When
admittedly, the father has collected rents from the suit properties till
his death and that the mother was receiving rent till her death, this
AS.No..334/2018
Court is of the view that the contentions of the 3rd defendant is not
probable.
(17) As regards the suit first item of property, it is held that the property
is the property of father late Thiru.Marimuthu Mudhaliyar.
However, the 3rd defendant who claimed to have spent a sum of
Rs.25 lakhs, has to prove his case. Though a contractor by name
Thiru.Ramasamy, was examined as DW2, his evidence can be
believed to the extent that the money was paid to DW2 by the 3 rd
defendant. As the elder son of the family, the 3rd defendant might
have arranged for the construction. It is also in evidence that the
property was originally purchased in the name of
Thiru.M.Venkatesan, son of late Thiru.Marimuthu Mudhaliyar,
and that the said Venkatesan, had executed a Power of Attorney in
favour of his father late Thiru.Marimuthu Mudhaliyar. It was after
the death of Venkatesan, his legal heirs had executed a Sale Deed
in favour of late Thiru.Marimuthu Mudhaliyar. It is in this factual
background, this Court is unable to accept the contention of the 3 rd
defendant regarding his contribution or ownership over the suit first
AS.No..334/2018
item.
(18) The 3rd defendant cannot claim ownership if he has just contributed
the money for the purchase. It is not the case of the parties that
their father late Thiru.Marimuthu Mudhaliyar and his sons
constituted a Hindu Undivided Joint Family. In such
circumstances, the acquisition of properties in the name of
Thiru.M.Venkatesan cannot be treated as a property of the 3rd
defendant in view of the Benami Prohibition Act. Further, the
property was subsequently sold in favour of father making him in
law, the absolute owner of the property. For the contention that the
3rd defendant spent for the whole construction, absolutely there is
no evidence as to the amount spent by the 3rd defendant and the
value of construction at the time when the construction was
completed. The construction was during the life time of father. As
stated by the Trial Court, the evidence of DW2 is not specific with
regard to several factors regarding purchase of materials,
commencement and completion of building. There is no
authenticated record or municipal approval for the plan etc., to
AS.No..334/2018
show that the construction from the beginning till the completion
was in the name of the 3rd defendant. The records produced to
show the expenditure incurred towards construction, are all self
serving which cannot be believed. The constructions according to
the 3rd defendant, was during the life time of his father late
Thiru.Marimuthu Mudhaliyar. Therefore, the 3rd defendant, at best
can demand the value of construction from his father during his life
time if he proves his case. It is not his plea that the father treated
the property as the property of the 3rd defendant. Unless he
establish the fact that he did the construction with the consent of
his father with an acknowledgment from him that money will be
paid back to the 3rd defendant or on the understanding that the
entire property was treated by father as the property of the 3 rd
defendant, the defence raised by the 3rd defendant cannot be
sustained. The Trial Court also found that the case of appellants
that the 3rd defendant spent a sum of Rs.6 lakhs for repairing or
improving the building in suit second item is not established after
proper appreciation of evidence. The findings of the Trial Court are
AS.No..334/2018
well founded and based on proper appreciation of evidence. There
is no irregularity or perversity or illegality in the decision of the
Lower Court.
(19) In the result, the Appeal Suit fails and the same is dismissed
confirming the judgment and decree dated 04.11.2017 passed in
OS.No.108/2014 by the learned II Additional District Judge, Salem.
No costs.
08.12.2021
AP
Index : Yes / No
Internet : Yes
To
1.The II Additional District Judge
Salem.
2.The Section Officer
VR Section, High Court
Chennai.
AS.No..334/2018
S.S.SUNDAR, J.,
AP
AS.No.334/2018
08.12.2021
https://www.mhc.tn.gov.in/judis 16
