Madras High Court
G.Manickaraj vs P.Manjula on 29 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.07.2021
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.636 of 2013
and
M.P.(MD) No.2 of 2013
G.Manickaraj ... Appellant/1st respondent/1st defendant
-vs-
1.P.Manjula
2.P.Thirupathi
3.P.Sudha ... Respondents/Appellants 1 to 3 /
Plaintiffs 1 to 3
4.K.Ravi
5.K.Parn @ Pethanan
6.K.Manikandan
7.K.Rajvel
8.G.Selvan
9.M.Selvan
10.T.Rengasamy
11.N.Sentrayan
12.S.Selvi
13.D.Murugan
14.G.Paulpandian ...Respondents / Respondents 2 to 11
https://www.mhc.tn.gov.in/judis
Defendants 2 to 12
1/7
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code to
set aside the Judgment and Decree dated 12.07.2011 made in A.S No.53
of 2010 on the file of the Sub Court, Uthamapalayam reversing the
judgment and decree dated 13.11.2009 made in O.S No.179 of 2008 on
the file of the District Munsif Court, Uthamapalayam.
For Appellant : Shri.R.Vijayakumar
For Respondents : Shri.C.Murugavel for Shri.N.Dilipkumar
for R1 to R3
R4 to R14 – No appearance.
******
The first defendant in O.S No.179 of 2008 on the file off the District
Munsif Court, Uthamapalayam is the appellant in this second appeal. The
suit was filed by the respondents 1 to 3 herein seeking partition in the suit
schedule four items. The suit properties belonged to Ganapathy
Gounder. The first defendant and the 12th defendant are his sons. The
plaintiffs were born to the 12th defendant. D2 to D11 had purchased
portions of the fourth item from the first defendant.
2.The case of the plaintiffs is that D1 and D12 entered into a
partition on 07.02.1970. It was reduced into writing and registered
(Ex.A1). The deed contained three schedules. “A” schedule properties
were allotted to their grand father. “B” schedule properties were allotted
https://www.mhc.tn.gov.in/judis
to the 12th defendant. “C” schedule properties were allotted to the first
defendant. The first defendant sold “C” schedule property (corresponding
to fourth item in the present suit schedule) to the 12th defendant vide sale
deed dated 22.03.1973. This was re-conveyed on 13.08.1981 by a
registered settlement deed (Ex.A2). The plaintiffs claimed that they
became aware of the reconveyance only in the year 2008. Since the suit
schedule fourth item is a joint family property of the plaintiffs and the 12th
defendant, the 12th defendant was not competent to convey the same to
the first defendant in any form, let alone by way of settlement. Seeking
their 3/4th share in all the four items in the suit schedule, the suit was
filed.
3.The 12th defendant remained ex parte. The appellant contested
the proceedings. Issues were framed. The second plaintiff examined
himself as PW.1. Exs.A1 to A13 were marked. The appellant examined
himself as DW.1 and Exs.B1 to B10 were marked. After considering the
evidence on record, the trial court dismissed the suit by judgment and
decree dated 13.11.2009. The plaintiffs filed A.S No.53 of 2010 before
the Sub Court, Uthamapalayam. By the impugned judgment and decree
dated 12.07.2011, the first appellate court reversed the decision of the
trial court and granted preliminary decree as prayed for in respect of the
fourth item. Aggrieved by the same, the first defendant filed this second
appeal.
https://www.mhc.tn.gov.in/judis
4.The second appeal was admitted after framing substantial
questions of law as to whether Central Act 39 of 2005 would be applicable
and whether the first appellate court was right in holding that the suit
fourth item was a joint family property at the hands of the 12th defendant.
5.The counsel for the plaintiffs contended that except what was
allotted to him under Ex.A1 partition, their father did not have any other
property or avocation ; the consideration paid by him to the first
defendant for purchasing the suit fourth item on 20.03.1973 thus came
only from joint family nucleus and therefore it should be treated as joint
family property ; once it is treated as joint family property, the 12th
defendant could not have settled the entire fourth item in favour of his
brother/the first defendant. Therefore, the first appellate court rightly
granted preliminary decree as regards the 3/4th share.
6.The answer to the first substantial question of law lies in the
statutory provision itself. It is beyond dispute that through a registered
instrument, the property had been dealt with and alienated in the year
1981 itself (Ex.A2). Therefore, the subsequent amendments made to the
Hindu Succession Act cannot have any application. Therefore, I answer
the first substantial question of law in favour of the appellant.
https://www.mhc.tn.gov.in/judis
7.The entire issue turns on the validity of the disposition made by
the 12th defendant in favour of the first defendant. The foundational
premise of the plaintiffs is that the suit fourth item is a joint family
property. To characterise a property purchased by the head of the family
as a joint family property, certain conditions must be satisfied. The
existence of a joint family nucleus must be established. These are
essentially matters of pleading and proof. The plaint is silent on these
aspects. What has not been pleaded cannot be proved. This is one
aspect of the matter. The second aspect is that the alienation has not
been formally questioned. The first plaintiff Manjula was born in the year
1971. The second plaintiff was born in the year 1976. The third plaintiff
was born in the year 1980. The suit came to be filed only in 2008. The
alienation was not questioned within twelve years or within three years
after the plaintiffs attained majority. The alienation was made on
30.01.1981. The revenue records were also mutated thereafter. The first
defendant had also parcelled the fourth item and made individual
alienations in favour of D2 to D11. The trial court had made an
observation that the 12th defendant was accompanying the plaintiffs and
attending almost all the suit hearings but he chose to remain conveniently
ex parte. The trial court rightly concluded that the suit was barred by
limitation. The first appellate court failed to deal with the reasons
assigned by the trial court for non-suiting the plaintiffs. The grounds of
https://www.mhc.tn.gov.in/judis
limitation and total want of pleading as regards the fulfillment of the
conditions to treat the fourth item as a joint family property cannot be
overcome at all by the plaintiffs. I answer the second substantial question
of law also in favour of the appellant. Since the appellant is concerned
only with the fourth item of suit property and not with items 1 to 3, the
impugned judgment and decree passed by the first appellate court is set
aside insofar as the fourth item is concerned. The second appeal is
allowed accordingly. No costs. Connected miscellaneous petition is closed.
29.07.2021
Index : Yes/No
Speaking/Non-Speaking Order
skm
Issue order copy on 08.04.2022
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 Sub Judge, Uthamapalayam.
2.The District Munsif, Uthamapalayam.
Copy to : The Record Keeper,
V.R.Section, Madurai Bench of the Madras High Court.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
skm
S.A.(MD) No.636 of 2013
and
M.P.(MD) No.2 of 2013
29.07.2021
https://www.mhc.tn.gov.in/judis
