Madras High Court
Dhanabal vs Srinivasan ...Plaintiff/ on 22 October, 2021
A.S.No.520 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
A.S.No.520 of 2018
1.Dhanabal
2.Ravichandran
3.Rajendran
4.N.Nagalakshmi ...Defendants 1 to 3 and 5/Appellant
Vs
Srinivasan ...Plaintiff/Respondent
PRAYER Appeal Suit filed under Section 96 of the Code of Civil
Procedure to set aside the Judgement and decree passed by the
learned III Additional District Judge, Salem in O.S.No.185 of 2014
dated 30.06.2011.
For Appellant : Mr.M.Devaraj
For Respondents : Mr.P.Hari babu
for sole respondent
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A.S.No.520 of 2018
JUDGMENT
The defendants have filed this appeal challenging the
judgment and decree passed by the learned III Additional District
Judge, Salem in OS.No.185 of 2014. Parties are being referred to in
the same rank as before the Trail Court for an ease of understanding.
2.The said suit is filed by the 1st respondent herein seeking a
partition and separate possession of his 1/4th share in the suit 1st item
of property and 1/5th share in the items 2nd and 3rd of the suit
schedule properties. The suit has been decreed only with reference to
the 1st item of suit property and dismissed with reference to the items
2nd and 3rd of the suit schedule properties.
3.The facts which has culminated in the filing of the above
appeal is herein below narrated and parties are referred to the same
litigative status as before the District Court.
4.The plaintiff and defendants 1 to 3 are siblings. The 4th and
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5th defendants are their father and mother respectively. The 5th
defendant was added as a party to the proceedings on the death of
the 4th defendant. It is the case of the plaintiff that the suit 1st item of
the property has been purchased jointly in the name of the plaintiff
and defendants 1 to 3 herein and they have been in joint possession
and enjoyment of the same. The plaintiff and the defendants were
running a power loom jointly and out of the said business, they have
purchased the 2nd and 3rd items of the suit scheduled properties in the
name of the 4th defendant.
5.It is the case of the plaintiff that the 4th defendant who was
aged 81 years had no independent occupation or separate business
income and he had not earned any amount separately to purchase the
2nd and 3rd items of the schedule properties. The plaintiff would
therefore submit that he is entitled to a share in all the properties.
Since the defendants were not coming forward to partition the
property, he was constrained to issue a legal notice on 28.07.2014
which, though received by defendants, was not responded to nor the
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A.S.No.520 of 2018
partition effected.
6.Pending the suit the 4th defendant had died leaving behind
him surviving the plaintiff and defendants 1 to 5. Since, the
defendants were not coming forward for a partition, the plaintiff
filed the above suit.
7.The 1st defendant filed a written statement which has been
adopted by the 2nd and 3rd defendants wherein they contented that, as
regards the 1st item of the suit property it was purchased out of the
loan borrowed from the bank, financial institution and private parties
by the defendants 1 to 3 who had spent huge amounts to develop the
property and to settle the debts. It is therefore their specific case that
although the property was purchased in the name of the plaintiff as
well, the plaintiff had not contributed any amount towards this
purchase nor towards its development. Hence, they would contend
that the plaintiff is not entitled to any share in the 1st item of the suit
property.
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A.S.No.520 of 2018
8.As regards the other items, their contention is that the
father/4th defendant was a textile manufacturer and merchant
engaged in huge textile business and out of his own earnings, he had
purchased 2nd item of the suit property under a registered sale deed
dated 04.05.1994 and constructed 24 houses in the 2nd item of the
suit property by obtaining loan from the LIC Housing finance Ltd.
Though the plaintiff and defendants 1 to 3 and their respective wives
stood as guarantors to the loan, it is the 1st defendant who was
paying the monthly instalments to the LIC Housing finance Ltd out
of his own income. Since, the 1st defendant was paying the loan, the
4th defendant had bequeathed the 2nd item of the suit property in
favour of this defendant under a registered will dated 24.12.2012
which came into effect on the demise of the 4th defendant. The 4th
defendant had purchased the 3rd item of the suit property out of his
own earnings under the registered Sale deed dated 08.02.2006 in
which he constructed houses in the said property by borrowing loans
from financial institution and private parties. The 3rd item of the
property was also settled on the 1st defendant under registered Gift
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A.S.No.520 of 2018
Settlement deed dated 04.08.2014 and the possession was also
handedover to the 1st defendant. Therefore the 3rd item of the
property is also not available for partition. Hence, the plaintiff is not
entitled to any share in the same.
9.The 1st defendant is running three power loom factories in
his own properties and the 3rd defendant is running a power loom
factory in the land standing in his name. Therefore it only the 1st and
3rd defendant who are running power loom in their respective
properties. The plaintiff had never run the power loom factory along
with the defendants 1 and 3. It is also the case of the defendants that
they and the plaintiff were living separately in separate houses and
have acquired properties separately and hence, there is no joint
status between the parties. Therefore they sought to have the suit
dismissed.
10.After the 5th defendant was impleaded, an additional written
statement came to be filed reiterating the contentions in the original
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written statement.
11.The III Additional District Judge, Salem had framed the
following issues:-
1.Whether the plaintiff is entitled for 1/4th share in the 1st
item of suit property as prayed for ?
2.Whether the plaintiff is entitled for partition as 1/5th share
in the 3rd item of the suit property as prayed for ?
3.Whether the plaintiff is entitled for permanent injunction
as prayed for ?
4.To what other relief ?
5.Whether the 3rd item of the suit property absolutely belong
to the 1st defendant by way of settlement deed dated
04.08.2014 ?
6.Whether the 2nd item of the suit property absolutely
belongs to 1st defendant by way of registered Will dated
24.12.2012 ?
The learned III Additional District Judge on perusing both
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A.S.No.520 of 2018
the documentary and oral evidence came to the conclusion that
2nd and 3rd items were the exclusive properties of the 4th
defendant and considering the Will settlement deed held that the
1st defendant was entitled to the 2nd item of the property
exclusively and the plaintiff had no right to the same. Likewise
in respect of the 3rd item of the property the learned District
Judge had considered the settlement deed Exhibit B8 executed
by 4th defendant in favour of the 1st defendant held that the 2nd
item of the property also belonged to the 1st defendant and
therefore rejected the claim of the plaintiff with reference to the
suit items 2 and 3. However, as regards the suit 1st item of the
property, the learned Judge held that since, the property had
been purchased in the name of the plaintiff and defendants 1 to
3, the plaintiff was entitled to 1/4th share in respect of the suit
property.
12.The plaintiff has not challenged the disallowed portion
of the decree and therefore the suit attained finality with regard
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A.S.No.520 of 2018
to items 2 and 3. The defendants have challenged the decree
only in respect of the 1st item of the suit property.
13.Mr.M.Devaraj, the learned Counsel who appeared on
behalf of the appellant would submit that though the land in the
1st item of the suit property has purchased in the name of the
plaintiff, however, the defendants have borrowed the loan for
putting up construction and for the development of the said
property. This loan has been incurred only by the defendants and
the plaintiff had not contributed a single penny to the same.
Therefore, the plaintiff is not entitled to any share in the said
properties.
14.He would further argue that the plaintiff has not
established his contention that he has contributed for the
purchase of the land in the 1st item of the suit property and
therefore not entitled to any share in the same. That apart, he
was never in enjoyment of item 1 of the suit property and only
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A.S.No.520 of 2018
the defendants are in the enjoyment and possession of the said
properties.
15.The learned Counsel appearing for the plaintiff
/respondent would submit that the document under which the
property had been purchased namely Exhibit A1 clearly shows
that the plaintiff is also not entitled to any share in the properties
and according to him, the decree passed is right in respect of the
1st item of the suit property.
16.On hearing the Counsels, the only point for
consideration in the appeal is that,
'Whether the findings of the Court below regarding suit 1st
item of property is correct?'
17.In the Written statement filed by the 1st defendant which
has been adopted by the defendants 2 and 3, the defendants have
stated as follows,
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A.S.No.520 of 2018
“The 1st item of the suit properties was purchased out of the
loan borrowed from bank, financial institutions and private
parties by the defendants 1 to 3. The defendants 1 to 3 spent
huge money to develop the said property and settled the debts
received for purchasing it. Though the sale deed stands in the
name of the defendants 1 to 3 and the plaintiff, the plaintiff has
not contributed any amount during the purchase of the said
property and he has not spent any amount to improve the said
property. Hence the plaintiff is not entitled to any share in the
1st item of the suit property.”
Therefore, a reading of the above would clearly prove that suit
1st item of the property is also purchased in the name of the plaintiff
and therefore the plaintiff is entitled to a share in the said property.
Exhibit A1 is the document under which the property has been
purchased and a perusal of the same, would clearly prove that the
said property has been purchased in joint name of the plaintiff and
defendants 1 to 3.
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18.In the above circumstances, there cannot be any quarrel in
the findings of the Court below and accordingly the appeal stands
dismissed. The Judgment and decree passed by the learned III
Additional District Judge, Salem in OS.No.185 of 2014 is therefore
confirmed. However, considering the circumstances, there shall be
no order to cost. Consequently, connected Miscellaneous Petition is
also closed.
22.10.2021
Index : Yes/No
Internet : Yes/No
Speaking Order/Non Speaking Order
gd
To
1. III Additional District Judge,
Salem
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A.S.No.520 of 2018
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A.S.No.520 of 2018
P.T.ASHA, J,
gd
A.S.No.520 of 2018
22.10.2021
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