Madras High Court
R.Balu vs T.Girija on 1 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.Nos.164 and 200 of 1989
in A.S.No.164 of 1989:-
R.Balu S/o.Late M.K.Ramaswami ... Appellant
vs.
1.T.Girija
2.R.Venu (died)
3.R.Sekar
4.R.Ramalingam (died)
5.Janaki Ammal
6.Mariammal (Died)
7.N.Devika
8.V.Sarveswari
9.V.Kannan
10.V.Kalaichelvi
11.V.Sabarinathan
12.V.Rajeswari (minor)
Represented by R8
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1/26
2
(R8 was appointed as guardian for
minor R12 and RR8 to 12 were
brought on record as Lrs of the
deceased 2nd respondent as
per order dated 27.03.2003)
13.R.Kaliammal
14.R.Anandhan
15.R.Balaji
16.R.Ananthi
17.R.Shanthi
18.R.Jayanthi
19.R.Jotheeswari
(RR13 to 19 were brought on
record as Lrs of deceased R4
vide court order dated 16.06.2017)
20.K.Alagar
21.S.Sathiya Priya
(RR20 and R21 were impleaded
vide court order dated 30.07.2021).
in A.S.No.200 of 1989:-
T.Girija ... Appellant
v.
1.R.Venu (Died)
2.R.Sekar
3.Balu
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4.Ramalingam(Died)
5.Janakiammal(Died)
6.Mariammal (Died)
(RR 2 to 4, 6 & 7 recorded as LRs
of the deceased 1st and 5th respondent
vide order of Court dated 05.02.2001)
7.N.Devika
8.Sarveswari
9.V.Kannan
10.V.Sabari
11.V.Rajesh
Minor represented by R8
(R8-V.Sarveswari appointed as Guardian of
Minor (R11) V.Rajesh vide as per
order of Court dated 05.02.2002)
12.V.Kalaichelvi
(RR8 to 12 have been brought on record as
LRs of the deceased first respondent vide
order of the court dated 05.02.2002)
(R11- declared as major and R8 was
discharged from guardianship vide
court order dated 28.06.2019)
13.R.Kaliammal
14.R.Anandan
15.R.Balaji
16.R.Anandhi
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17.R.Shanthi
18.R.Jayanthi
19.R.Jotheeswari
(R13 to R19 were brought on record
as LRS of the deceased R4.
vide order dated 16.06.2017
20.K.Alagar
21.S.Sathiya priya
(R20 and 21 impleaded vide court
order dated 30.07.2021)
Common Prayer: First Appeals filed under Section 96 of C.P.C against
the decree and judgment of the Subordinate Judge, Thanjavur made in
O.S.No.105 of 1985 dated 29.08.1988.
Counsel appeared in A.S.No.164 of 1989 : -
For Appellant : Mrs.S.Srimathy
For Respondents : Mr.P.Thiyagarajan for R1
No appearance for R3
Mr.M.Saravanan for R6 & R7
Mr.K.Govindarajan for R8 to R12.
(R12 minor rep. by R8)
: Mr.N.Sivakumar for R14
: Ms.Chithra Sampath, Senior Counsel
for Mr.R.V.Rajkumar for R20 & R21
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Counsel appeared in A.S.No.200 of 1989 : -
For Appellant : Mr.P.Thiyagarajan
For Respondents : No appearance for R2
Mrs.S.Srimathy for R3.
Mr.M.Saravanan for R6 & R7
Mr.K.Govindarajan for R8 to R12.
(R12 minor rep. by R8)
Mr.N.Sivakumar for R14
Ms.Chithra Sampath Senior Counsel
for Mr.R.V.Rajkumar for R20 & R21
COMMON JUDGMENT
These appeals arise out of a partition suit in O.S No.105 of 1985
on the file of the Sub Court, Thanjavur. The plaintiff in the suit is the
appellant in A.S No.200 of 1989. The other appeal, namely, A.S No.164
of 1989 was filed by the third defendant Balu. The genealogy is as
under :
“Ramaswamy Pathar - Visalakshi (W-1)
Janakiammal (W-2)
| | | | | | |
Ramalingam Bala Girija Venu Deviga Mariammal Sekar
41 36 34 32 26 25 24”
2.Ramaswamy Pathar who is mentioned in the above genealogy
married one Vishalakshi who came from an affluent family. She
passed away without giving birth to any children. Ramaswamy Pathar
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thereafter married one Janaki Ammal and through her begot four sons
and three daughters. One of the daughters, namely, T.Girija filed the
above suit seeking partition and separate possession of her 1/8th share
in the suit properties. The suit properties were divided into two
schedules, namely, “A” and “B”. “B” schedule comprises immovable
properties worth Rs.1.50 lakhs. “B” schedule can as well be ignored.
The primary focus is only on the “A' schedule which comprises 19
items. The case of the plaintiff is as follows :
3.Ramaswamy Pathar was a self-made man and by his efforts,
industry and enterprise, acquired “A” schedule properties. He died
intestate on 16.08.1982. He left behind his wife Janaki Ammal (5th
defendant), the plaintiff and the other defendants as his surviving legal
heirs. Each heir is entitled to 1/8 th share in each of the suit properties.
Item 1 is a lodging house known as Safire Lodge. It was settled in
favour of the defendants 3 and 4 for income tax purposes. Actually, it
continues to be the joint family property. Two of the items stand in the
names of the wives of the first defendant and fourth defendant
Ramalingam. But they are also joint family properties. Since the four
brothers, namely, D1 to D4 are not coming forward for an amicable
partition, the plaintiff had to file the partition suit.
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4.The suit was resisted by all the four brothers. Two of the
brothers, namely, R.Venu and R.Sekar (D1 and D2) joined with the
mother Janaki Ammal and filed written statement controverting the
plaint averments. The fourth defendant also filed written statement
contending that the first item of “A” schedule known as Safire Lodge
exclusively belonged to the third and fourth defendants and that
neither the plaintiff nor the other defendants can have any claim
thereon. He also claimed that the fourth item of “A” schedule was gifted
to him orally. Item 10 of “A” Schedule is also the absolute property of
his wife, namely, S.R.Kaliammal. Item 12 of “A” schedule belonged to
Sarveswari, the wife of the first defendant Venu. According to him,
these items, namely, Items 1, 4, 10 and 12 of the “A” suit schedule are
not available for partition. The sixth defendant Mariammal and the
seventh defendant Devika, the sisters of the plaintiff sailed with her
and called for passing of a decree for 1/8th share in the suit properties.
5.Based on the divergent pleadings, the trial court framed as
many as 13 issues. The plaintiff examined herself as PW.1 and marked
Exs.A1 to A13. The first defendant examined himself as DW.1 and the
fourth defendant examined himself as DW.2. On the side of the
defendants, Exs.B1 to B46 were marked. After consideration of the
evidence on record, the trial court by judgment and decree dated
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29.08.1988 held that except Items 4, 10, 11, 12, 16, 17 and 19, all
other properties in suit “A” schedule were joint family properties and a
preliminary decree was passed granting 1/40th share to the plaintiff in
those items. The defendants 5 and 6 who were also granted 1/40 th
share in the suit properties. The sons, namely, D1 to D4 were granted
9/40th share. In suit items 1 and 2, the eastern half was declared as
joint family properties and 1/40th share was granted to the plaintiff.
Aggrieved by the same, the third defendant filed A.S No.164 of 1989
claiming exclusive right over the first item of “A” schedule along with
the fourth defendant. The plaintiff filed A.S No.200 of 1989 with
respect to the disallowed portions ie., Items 4, 10, 11, 12, 16, 17 and
19 and the western half portions in Items 1 and 2 in suit “A” schedule.
6.The trial court dismissed the suit with respect to items.11, 16,
17, 19 and western half portions in items 1 and 2 in suit “A” schedule
since those properties stood in the name of Janaki Ammal, the fifth
defendant. During the pendency of the appeal, she passed away. It
was claimed that Janaki Ammal had executed two Wills dated
28.07.1988 and 09.02.1989. CMP No.12562 of 1999 was filed for
bringing them on record. Since objections were made, the trial court
was called upon to render a finding as regards the genuineness of the
Wills. The parties adduced evidence before the trial court which after
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a detailed enquiry held that both the Wills said to have been executed
by the deceased Janaki Ammal are not genuine. It was also found that
the plaintiff Girija and the defendants 1 to 4 and 6, 7 are her legal
heirs. The finding was submitted to this Court vide report dated
19.04.2000. Objections were filed by the second respondent to those
findings. It is seen that all the parties were given opportunity to
adduce both oral and documentary evidence. D1 Venu examined
himself as RW.1. D2 Sekar examined himself as RW.2. Three other
witnesses were examined on the side of R.Sekar. A number of
documents were marked. Janaki Ammal passed away on 01.05.1999.
The Will dated 28.07.1988 marked as Ex.P1 was propounded by D1
Venu. It was attested by one Ramalingam and Annamalai. One
Muthu Mahalingam was the scribe. The attestor Annamalai had
already passed away. The scribe Muthumahalingam had also passed
away. Though one other attesting witness, namely, Ramalingam was
alive he was not examined by D1 Venu on the ground that he was
bedridden. The trial court noted that no convincing explanation was
given by the propounder of the Will for non-examination of the attesting
witness Ramalingam who was alive. If Ramalingam was bedridden, a
commission ought to have been taken and his evidence obtained. The
propounder of the Will failed to do it. The trial court rightly came to the
conclusion that Section 69 of the Indian Evidence Act cannot be
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pressed into service. When the attesting witness is available, this
provision cannot have any application. Merely because the Will was
registered, it would not acquire a higher sanctity so as to come to the
conclusion that the Will dated 28.07.1988 said to have been executed
by the deceased Janaki Ammal was proved.
7.After a careful consideration of the entire evidence on record, I
am satisfied that the reasons given by the trial court are sound and
convincing and I find that the Will dated 28.07.1988 is not genuine.
As regards the other Will dated 09.02.1989, a similar finding has been
rendered. The trial court has dealt with the issue regarding the
genuineness of the Will from Paragraphs 20 to 33. The contentions
advanced on either side have been dealt with in detail. The second Will
was not registered. Instead, it was deposited in a sealed cover and
produced later. The trial court has also set out a host of suspicious
circumstances. There is no appearance on the side of R.Sekar
challenging these findings. Therefore, the findings of the trial court
submitted vide report dated 19.04.2000 are accepted in toto.
8.The learned counsel appearing for the appellant/plaintiff
submitted that the settlement deeds executed by Ramaswamy Pathar
and Janaki Ammal under Exs.B15 and B16 respectively were sham
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and nominal. They were executed for tax purposes. They are very
much joint family properties amenable to partition. Item 4 was
purchased under Ex.A1 sale deed dated 08.04.1942. The property
stands in the name of Ramaswamy Pathar. The fourth defendant
claimed it as his exclusive property on the strength of oral gift. The
said plea could not be established. The trial court also erroneously
concluded that item 4 stands in the name of Janaki Ammal and that
items 4 and 17 are one and the same. Item 17 is a different property
purchased in the name of Janaki Ammal under Ex.B7 sale deed dated
08.02.1956. Though items 10 and 12 stand in the names of Kaliammal
and Sarveshwari, they are also equally amenable to partition because
the purchase was made only by Ramaswamy Pathar out of his own
funds. In view of the march of law, particularly, the pronouncement of
the Hon'ble Supreme Court in the decision reported in (2020) 9 SCC 1
(Vineeta Sharma vs. Rakesh Sharma), each of the children of
Ramaswamy Pathar and Janaki Ammal will be entitled to 1/7th share in
the suit properties. The learned counsel pressed for modification of the
impugned judgment and decree and for allowing A.S No.200 of 1989.
9.The learned counsel for the appellant in A.S No.164 of 1989
submitted that she would sail with the plaintiff for grant of partition in
respect of the items except the first item of “A” schedule. It is known
as Safire lodge. The site on which it is standing belonged to one Gopal
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Chettiar. The parents, namely, Ramaswamy Pathar and Janaki Ammal
purchased the site in two parcels in the year 1967. After the
construction was completed, vide settlement deed dated 20.05.1972
the father and mother executed two settlement deeds in favour of the
defendants 3 and 4. The case of the appellant in A.S No.164 of 1989 is
that the defendants 3 and 4, he and his brother Ramalingam
constructed the building which was opened on 14.09.1972. The license
for the building is standing in their names. The property tax
assessment register reflected their names. The electricity connection
stood in their names. To substantiate this plea, D3 and D4 marked
Exs.B20 to B28 and B40 to B42. The learned counsel heavily relied
on the income tax assessment order made vide Ex.46 in which it was
held that Ramaswamy Pathar could not be called as Benamidar. The
trial court without taking note of the fact that Ex.B15 and B16 are
registered documents and that they were acted upon erroneously came
to the conclusion that it is a joint family property. Without considering
the terms of the settlement deed and without assigning any proper
reason, the trial court came to an erroneous finding that Item 1 of “A”
schedule is also amenable to partition. The learned counsel firmly
contended that the suit item 1 of “A” schedule is the absolute property
of the third and fourth defendants and that the decree of partition
passed by the trial court has to be reversed in this regard.
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10.The learned counsel also submitted that the fifth defendant
Janaki Ammal who sailed with the other sons and pleaded that the
settlement deed was sham and nominal document kept away from the
witness box. Therefore, adverse inference has to be drawn against her.
The learned counsel placed reliance on the decisions reported in (1999)
3 SCC 573 and (2010) 10 SCC 512 and an unreported decision made
in SA No.109 of 2005 dated 14.08.2012. She also submitted that
when the contention is that the registered documents are sham and
nominal, burden of proof to show that it is so lies on the person putting
forth the contention. He cannot rest content with picking holes in the
defence of the other. She would also point out that the Safire lodge is
being managed by a partnership firm. The contesting parties are not
partners in the partnership firm. Therefore, non-production of the
accounts will not affect their case. She also drew my attention to the
testimonies of PW.1 and DW.1 to show that they were absolutely
unaware of the transactions and therefore, they cannot idly contend
that Safire lodge is joint family property amenable to partition. She
strongly pressed that the first item of suit “A” schedule property must
be kept out of the purview of partition. In all other respects, she sailed
with the plaintiff.
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11.I also heard Ms.Chithra Sampath, the learned Senior Counsel
appearing for the 20th and 21st respondents and the other learned
counsel for the remaining respondents. They would also contend that
Exs.B15 and B16 settlement deeds were not acted upon and they are
sham and nominal documents.
12.I carefully considered the rival contentions and went through
the evidence on record. The points for consideration are as follows :
“a)Whether Exs.B15 and B16 are sham and
nominal documents ?.
b)Whether items 4 and 17 are one and the
same ?.
c)Whether items 10 and 12 are amenable to
partition ?.
d)What are the shares to be allotted to the
parties herein in the various suit items ?.”
Some of the legal heirs have passed away and their legal heirs have
come on record. For the purpose of easy reference, each of the original
legal heirs of Ramaswamy Pathar and Janaki Ammal are referred as
units 1 to 7. If a legal heir has passed away, the children of the legal
heir would fall within the concerned unit. I must also note that though
the third and fourth defendants sailed together before the trial court,
only the third defendant Balu filed an appeal against the judgment of
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the trial court. Ramalingam, the fourth defendant did not file any
appeal. He passed away during the pendency of the appeal
proceedings. His legal heirs were set exparte. Though they did not
contest the appeal, the counsel for Mr.Balu took care of the interests of
the legal heirs of the fourth defendant Ramalingam also.
13.Let me take up the properties item-wise. The first item of the
“A” schedule is known as Safire lodge. The land on which it is standing
belonged to one Gopal Chettiar. Ramaswamy Pathar and Janaki Ammal
have purchased the same independently in two parcels (Exs.B1 and
B2). From a perusal of Exs.B45 and B46 income tax proceedings, it is
seen that Ramaswamy Pathar applied for plan approval on 27.10.1970.
It was granted on 20.02.1971. Ramaswamy Pathar borrowed a sum of
Rs.1,30,000/- from Lakshmi Vilas Bank for putting up construction. A
few private sources were also named. It is so obvious that the entire
cost of construction was borne by Ramaswamy Pathar. During the
relevant time, neither the third defendant nor the the fourth defendant
had the wherewithal to fund the transaction. One of them was
occupying a clerical post in Lakshmi Vilas Bank. After the
construction was completed, Ramaswamy Pathar and his wife executed
Exs.B15 and B16 on 20.05.1972 in the joint names of the third and
fourth defendants. It is interesting to mention that though according to
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the recitals, the construction was raised by the third and fourth
defendants out of their own funds, in the schedule only a vacant site
was shown. It was also indicated that the object of executing the
settlement deed was to obtain license to run the lodge in the names of
the third and fourth defendants. Based on the same, the third and
fourth defendants obtained license in their names on 23.09.1972.
Even though there were other children at home, there was absolutely
no reason to give preferential treatment to the third and fourth
defendants. The only explanation can be that it was for tax purposes.
As anticipated, tax proceedings were initiated for the assessment year
1972-73 and the question arose as to whether the cost of construction
has to be reckoned in the account of Ramaswamy Pathar. The
assessing authority noted that Ramalingam was working as Cashier in
the bank and that his basic pay was Rs.303/- and the D.A was Rs.
164/ in December 1975. D3 Balu was not even employed. Though
Ramaswamy Pathar suffered an adverse order under Ex.B45, the
appellate authority under Ex.B46 held that there are no strong grounds
to hold that Safire lodge was Benami concern of Ramaswamy Pathar.
The appellate authority observed that it was no doubt true that the
assessing authority had a natural suspicion about the affairs of
Ramaswamy Pathar and that there were also certain pointers in the
direction. However, the appellate authority held that there was no
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tangible evidence to clinch the issue. In that view of the matter, the
appellate authority under Ex.B46 substantially allowed the appeal of
the assessee. I need hardly add such a finding of the appellate
authority cannot be binding on the civil court. In fact, the contents of
Ex.B45 and B46 clinchingly show that the entire funding came only
from Ramaswamy Pathar and neither Balu nor Ramalingam (D3 and
D4) had any contribution to make. Janaki Ammal was the author of
the settlement deed (Ex.B15). In her written statement, she
categorically stated that her husband Late Ramaswamy Pathar advised
her to execute Ex.B15 with a view to avoid heavy taxation and for
facilitating easy accounts. She took a categorical stand that both the
settlement deeds are sham and nominal. The documents were never
intended to be acted upon She also asserted that they were not acted
upon. It is true that the fifth defendant did not enter the witness box.
But the question of drawing adverse inference against the fifth
defendant does not arise. This court cannot lose sight of the fact that
she was the author of Ex.B15 and she was the mother of the settlees.
She had not chosen to support D3 and D4. The civil court was in a
better position to appreciate the true nature of the transaction than the
income tax appellate authority.
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14.A document will be 'sham' if it ostensibly creates
rights/obligations, which are not intended to be acted upon by the
parties to the deed, and is executed in pursuance of a secret
arrangement, with the ulterior motive of securing an undisclosed
advantage to the owner (or executant as the case may be). It involves
collusion between the parties to the document to achieve an illegal
objective [(2011 )15SCC 756 V.M. Salim vs. Fathima Muhammed and
Ors] vide P.Ramanatha Aiyar's Advanced Law Lexicon, 5th Edition]. In
other words, though the document bear a certain semblance when it
was never to be acted upon, it is called as a sham and nominal
document. Of course, the burden to show that it is a sham and
nominal document is on the persons characterising it to be one.
Ramaswamy Pathar had four sons and three daughters. The
settlement deeds Exs.B15 and B16 stand in the name of two of the
sons. The remaining sons and daughters challenged those documents
as sham and nominal. The question is as to whether they have
discharged the burden cast on them. I am of the view that they have
clearly discharged the said burden. The following circumstances will
make it evident :
15.From a perusal of Exs.B45 and B46, one can come to the
conclusion that the construction was funded in its entirety by
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Ramaswamy Pathar and D3 and D4 lacked financial capacity to put up
the construction. Though Exs.B15 and B16 were executed by
Ramaswamy Pathar and Janaki Ammal, in the written statement
Janaki Ammal had categorically pleaded that they were executed to
avoid taxation. Ramaswamy Pathar lived for almost ten years
thereafter. D3 and D4 could not file a scrap of paper to show that they
managed the lodging house. On the other hand, the specific stand of
the plaintiff as well as the other defendants was that Ramaswamy
Pathar managed the lodging house till the very end. Ex.B3 is the
invitation card issued by Ramaswamy Pathar in connection with the
wedding of his son Venu. Ramaswamy Pathar was described as a
proprietor of the Safire lodge. Ramalingam who was examined as DW.
62 was confronted with Ex.B13 and he admitted its contents and also
stated that he did not object such a description. DW.2 was an income
tax assessee. Safire lodge obviously generated income. If it had gone to
the kitty of D3 and D4, it would have been reflected in their tax
returns. No such return was filed by the third and fourth defendants.
Ramalingam was a bank employee during the relevant time. Later,
Balu also became a bank employee. If really Safire lodge was treated
as their property, they would have declared it as a capital asset in their
income tax returns. No such document was filed. Though the fourth
defendant in the written statement claimed that gift tax was paid, no
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document was produced. Though D3 and D4 claimed that Safire lodge
was managed by a partnership firm comprising the wives of D3 and D4
and their mother, there is complete absence of evidence in that regard.
16.The contention of the plaintiff and the other defendants was
that Exs.B15 and B16 were not acted upon. The defence of D3 and D4
was that they were acted upon. In that event, D3 and D4 must
produce the evidence in their custody. Section 106 of the Indian
Evidence Act states that when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him.
It has been held in case after case that if a party in possession of best
evidence which would throw light on the issue on controversy withholds
it, court ought to draw adverse inference against him notwithstanding
that the onus of proof does not lie on him. The person withholding the
document cannot fall back on the fact that he was not called upon to
produce it. The abstract doctrine of onus of proof also will not come to
his rescue. [AIR 1968 SC 1413 & 2016-2-LW.88]. When DW.2
Ramalingam was questioned as to the number of rooms in Safire lodge,
he pleaded ignorance. Even though Exs.B15 and B16 were executed in
1972, till 1985 the revenue records for the land reflected the names of
the parents. This was admitted by DW.2 in his evidence. The best
evidence to show that the suit item 1 became the exclusive property of
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D3 and D4 would be that they enjoyed the income generated by lodging
business. The income tax returns would have clearly established the
same. D3 and D4 were bank employees and they were income tax
assessees. Their income tax returns were withheld from the court.
That is why, the trial court rightly held that Exs.B15 and B16 were not
acted upon and continued to be owned by the parents till their death.
After a careful appreciation of the entire evidence on record, I confirm
the finding of the trial court that the first item of suit “A” schedule is a
joint family property. In view of the amendment made to Hindu
Succession Act in the year 2005 and as laid down by the Hon'ble
Supreme Court in Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1,
each of the units (legal heirs of Ramaswamy Pathar and Janaki Ammal)
will have 1/7th share in the suit first item of “A” schedule.
17.Item No.2 is known as Ajantha building. The eastern portion
stood in the name of Ramaswamy Pathar while western portion stood in
the name of Janaki Ammal. Admittedly, Ramaswamy Pathar died
intestate. The Wills attributed to Janaki Ammal have been found to be
not genuine. Hence, each of the units will be entitled to 1/7 th share in
the second item of “A” schedule property.
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18.Item 3 stood in the name of Ramaswamy Pathar and therefore
each of the units will be entitled to 1/7th share. Item 4 also stood in
the name of Ramaswamy Pathar. The finding of the trial court in this
regard is incorrect and there is consensus among all the counsel in this
regard. Though the fourth defendant claimed that the fourth item was
orally gifted to him, it has not been established and in any event, such
a oral gift is not contemplated in law. Hence, each of the units will be
entitled to 1/7th share in the 4th item also. The trial court has held
that items 5 to 9 stood in the name of Ramaswamy Pathar. Hence,
each of the units will be entitled to 1/7th share in them.
19.Item 10 stands in the name of Kaliammal, the wife of the
fourth defendant. She was not shown as a party before the trial court.
However, her husband Ramalingam pleaded before the trial court that
the said item exclusively belonged to his wife Kaliammal. I can safely
conclude that Kaliammal was fully aware that item 10 is very much
become the subject matter of the suit. She did not chose to file any
petition for impleading herself. Since the fourth defendant passed
away, she has come on record before this court. However, she has not
chosen to contest the appeal proceedings. She knows that the plaintiff
filed this appeal challenging the exclusion of item 10 from the purview
of partition. Yet, she has chosen to remain quiet. A mere perusal of
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Ex.B16 sale deed dated 25.01.1983 would show that the sale
consideration to the tune of Rs.40,000/- was paid before the end of
1972. Kaliammal never had any independent source of income. Her
husband was drawing a few hundred rupees as his monthly salary.
Rs.40,000/- was a huge sum during those days. It is obvious that the
entire sale consideration was paid by the Kartha of the joint family. For
reasons which are not quite clear he did not choose to take any sale
deed in his name. Following his demise on 16.08.1982, the fourth
defendant obtained the sale deed in favour of his wife. I hold that item
10 is also a joint family property even though it stands in the name of
Kaliammal and that each of the units will have 1/7th share therein.
20.Item 11 stands in the name of Janaki Ammal and each of the
units will be entitled to 1/7th share therein. Item 12 was also left out of
partition. It stands in the name of wife of Mr.Venu, the first defendant.
Venu has since passed away and Sarveswari has come before this
Court. Just as the fourth defendant Ramalingam contended that Item
10 standing in the name of his wife is not amenable to partition, Venu
also took a similar stand. Like Kaliammal, Sarveswari also knew that
item 12 is the subject matter of suit. She did not choose to get herself
impleaded. In any event she is before this Court. Though the learned
counsel appearing for her would contend that item 12 is her exclusive
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property, the circumstances appearing on record impel me to conclude
otherwise. Item 12 was purchased under Ex.B5 sale deed dated
10.07.1976 for a sum of Rs.9,000/-. Though it is claimed that the fund
was provided by Sarveswari's father, there is absolutely no evidence in
support of the same. Sarveswari was not having any independent
source of income. Venu also did not have the capacity to mobilise
such huge amount. On the other hand, there is ample evidence to show
that Ramaswamy Pathar used to purchase properties in the names of
the family members. Ramaswamy Pathar passed away only in the year
1982. It is therefore safe to conclude that item 12 is also a joint family
property. Therefore, each of the units will be entitled to 1/7th share
therein. Items 13, 14 and 15 stood in the name of Ramaswamy Pathar
and therefore, each of the units will be entitled to 1/7th share therein.
Item 16 also stood in the name of the parents and therefore, each of
the units will be entitled to 1/7th share therein. Item 17 stood in the
name of Janaki Ammal and therefore, each of the units will be entitled
to 1/7th share therein. Item No.18 stands in the name of Ramaswamy
Pathar and therefore each of the units will have 1/7th share. As
regards item 19, the trial court has given a finding that it could not be
identified. No additional evidence has been adduced before this Court
to identify the said property. I therefore confirm the finding of the trial
court in this regard.
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21.The impugned judgment and decree of the trial court is
modified accordingly and the appeals are disposed of in the above
terms. No costs.
01.09.2021
Index : Yes / no
Internet : Yes / No
skm
To
The Subordinate Judge, Thanjavur.
Copy to :
The Record Clerk,
Vernacular Records,
Madurai Bench of the Madras High Court.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
A.S.Nos.164 and 200 of 1989
01.09.2021
https://www.mhc.tn.gov.in/judis/
