Madras High Court
P.Eswaramoorthy vs Kumudham on 1 December, 2022
A.S.No.286 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.286 of 2016
and C.M.P.No.5062 of 2016
1. P.Eswaramoorthy
2. E.Palaniammal .. Appellants
Versus
1. Kumudham
2. Minor Deepika
Minor rep. by her next friend mother Kumudham
3. Arjunan
4. Sellammal
5. Malleeswari .. Respondents
Prayer : Appeal Suit filed under Section 96 r/w Order XLI Rule 1 of Civil
Procedure Code to set aside the judgment and decree, dated 08.10.2015
passed in O.S.No.18 of 2014 by the learned I Additional District Judge,
Erode.
For Appellants : Mr.A.Prabakaran
for Mr.K.Muthu Ganesa Pandian
For Respondents : Mr.Kaithamalai Kumaran, for R1
R2 minor rep. by R1
RR-3 to 5 - Notice served
https://www.mhc.tn.gov.in/judis
1/16
A.S.No.286 of 2016
https://www.mhc.tn.gov.in/judis
2/16
A.S.No.286 of 2016
JUDGMENT
A. The Appeal Suit :
This Appeal Suit is filed against the judgment and decree, dated
08.10.2015 passed by the learned I Additional District Judge, Erode, in
O.S.No.18 of 2014, in and by which, the suit, filed by the plaintiffs for
partition in respect of two items of the suit properties, was allowed and a
preliminary decree granting 2/6th share to the second plaintiff in the item
No.1 of the suit properties and 1/2 share in the item No.2 of the suit
properties, besides, directing the first defendant to pay maintenance of a
sum of Rs.5,000/- per month to the first plaintiff and also creating a charge
over the share of the first defendant for regular payment of the maintenance
to the first plaintiff and granted permanent injunction restraining the
defendants, their men and agents from in any manner alienating or
encumbering the suit properties till final partition is effected.
2. The defendants 4 and 5, who are the purchasers of the item No.2 of
the suit schedule property are on appeal before this Court inasmuch as the
impugned judgment and decree grants a preliminary decree of 1/2 share in
the item No.2 of the suit properties in favour of the second plaintiff.
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
B. The Plaint :
3. The brief facts leading to filing of the Appeal Suit are that the first
plaintiff namely, Kumudham, is the wife of one Arjunan. The second
plaintiff namely, minor Deepika, represented by her mother, Kumudham, is
the daughter of Arjunan. The said Arjunan is the first defendant in the suit.
The said Arjunan was born to one Nachimuthu Goundar and Sellammal.
Nachimuthu Goundar had since passed away and Sellammal is the second
defendant in the suit. Arjunan has got a sister by name Malleeswari, who is
the third defendant in the suit. The fourth defendant, P.Eswaramoorthy and
the fifth defendant, E.Palaniammal, are the persons who purchased the item
No.2 of the suit properties by a registered sale deed, dated 30.10.2013 from
the first defendant, Arjunan.
4. It is the case of the plaintiffs that item No.1 of the schedule
mentioned properties is the ancestral property and the first defendant's
father, Nachimuthu Goundar was allotted the same under a registered
partition deed, dated 09.11.1966. The same was enjoyed jointly by the said
Nachimuthu Goundar and his son Arjunan and as such is an ancestral
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
property. While so, on 08.03.2002, a portion of the ancestral property was
sold by the first defendant, Arjunan, the second defendant, Sellammal and
the third defendant, Malleeswari and out of the said funds, another property
was purchased which is described as item No.2 of schedule properties in the
plaint. The property was purchased a day prior to the sale i.e., on
07.03.2002. While so, in or about the year 2010, the relationship between
the first plaintiff-wife and the first defendant-husband got strained and the
plaintiff and her daughter/the second plaintiff were sent out of the house. In
order to leave the first plaintiff and the minor daughter in lurch, the first
defendant had sold the property to the defendants 4 and 5. Hence the suit.
C. The Written Statement :
5. The suit was not contested by the first defendant, Arjunan, the
second defendant, Sellammal and the third defendant, Malleeswari. Only
the purchasers of the schedule-II property namely, P.Eswaramoorthy and
E.Palaniammal contested the suit by filing a written statement. Their case
is that, even though a dispute is alleged between the husband and wife, no
petition before Court is filed and pending. Further, it is their case that when
the property is allotted to Nachimuthu Goundar by virtue of the registered
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
partition deed, it was his self-acquired property and after his life time,
Arjunan inherited the same along with Sellammal and Malleeswari under
Section 8 of the Hindu Succession Act, 1956. Therefore, item No.1 of the
schedule properties cannot be termed as ancestral properties. In any event,
the title to the item No.2 of the schedule properties stands in the name of
Arjunan alone, he having purchased the same by a sale deed, dated
07.03.2002. Thereafter, for a valid and proper consideration, the property
was sold to the defendants. They are in possession and enjoyment of the
same. They are bonafide purchasers entitled to equity. The suit is filed only
to defeat their rights.
D. The Issues :
6. On the above pleadings, the Trial Court framed the following
issues:-
1. Whether the 'D' schedule properties has
been already allotted to the share of one
Nachimuthu who is the father of D1, 3 and
husband of D2 through registered partition which
is effected on 9.11.1966 among with his brothers
as alleged?
2. Whether the suit is bad for non joinder of
necessary parties?
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
3. Whether the D4 and D5 are the bonafide
purchasers for a valuable consideration in
respect of the Item No.2 of the schedule property
as alleged?
4. Whether the 2nd plaintiff is entitled for
partition of respective shares in the plaint 1, 2
items of schedule properties by metes and bounds
as prayed for?
5. Whether the 1st plaintiff is entitled for the
life time maintenance amount of Rs.5000/-p.m.
from the 1st defendant as prayed for?
6. Whether the 2nd plaintiff is entitled for
the injunction relief against D1 to D5 as prayed
for?
7. What other reliefs the plaintiffs are
entitled for?
8. What order as to costs?
Additional Issues :
1. Whether the suit properties are the
ancestral properties or the individual properties
of D1?
2. Whether the sale deed dated 3.10.2013
in favour of D4 and D5 is binding in nature to P2
as alleged?
3. Whether the suit is collusive one? or
not?
E. The Evidence :
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
7. On the said issues, parties let in evidence. The first plaintiff
examined herself as P.W.1 and Exs.A-1 to A-12 were marked. On behalf of
the defendants, the fifth defendant examined herself as D.W.1 and Exs.B-1
to B-3 were marked.
F. The Findings of the Trial Court :
8. The Trial Court, thereafter, proceeded to consider the case of the
parties and by a judgment, dated 08.10.2015, held that once the properties
are allotted to Nachimuthu Goundar by a deed of partition, it cannot be
termed as his separate properties in the hands of Nachimuthu Goundar and
it continued to be coparcenary property and subsequently, when the other
coparceners are born and the shares were vested in them also and held that
the plaintiffs' suit is bound to succeed in respect of item No.1 of the suit
properties. As far as the item No.2 of the suit properties is concerned, the
Trial Court, considering the recital in the sale deed, dated 08.03.2002,
which specifically stated that a portion of the ancestral property is sold only
to purchase the other property and considering that the purchase of the other
property also happened just a day prior to the sale i.e., on 08.03.2002, held
that the item No.2 of the suit properties was purchased out of joint family
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
nucleus and as such, held that the item No.2 of the suit properties is also
coparcenary property and held that the minor Deepika is also entitled to a
share in the said property. The Trial Court further held that the purchase of
the defendants 4 and 5 is not bonafide and that they are not entitled to any
equity. Aggrieved by the same, the present Appeal Suit is laid by the
defendants 4 and 5.
G. The Submissions :
9. Heard Mr.A.Prabakaran, the learned Counsel appearing on behalf
of the appellants and Mr.Kaithamalai Kumaran, the learned Counsel
appearing on behalf of the first respondent.
10. Mr.A.Prabakaran, the learned Counsel appearing on behalf of the
appellants, would contend that firstly, in this case, the property which came
to Nachimuthu Goundar cannot itself be termed as an ancestral property.
Be that as it may, as far as the item No.2 of the suit properties is concerned,
it is purchased by the first defendant, Arjunan. In the sale deed, dated
30.10.2013, by which, the property was sold to her, it is absolutely
described as "Rau;$pj" property. Therefore, when the item No.2 of the suit
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
properties was independently purchased by Arjunan, it cannot be said to be
an ancestral property. Further, it can be seen that under the sale deed, dated
08.03.2002, the total sale consideration received was only Rs.3,14,000/- and
even in the sale deed itself, multiple purposes are mentioned like family
expenses etc., and purchase of another property is also mentioned as one of
the purposes. On the other hand, a perusal of the deed of purchase by
Arjunan, dated 07.03.2002, would reveal that the total sale consideration is
Rs.4,27,000/- and therefore, by a mere recital contained in Ex.A-5 alone, it
cannot be held that that the properties will be ancestral in nature. The
finding of the Trial Court that the appellants' purchase is not bonafide is
without any material and therefore, they will be entitled to equity.
11. Per contra, Mr.Kaithamalai Kumaran, the learned Counsel
appearing on behalf of the first respondent, would submit that in this case,
the concerned persons who can contest about the share of the second
plaintiff are the defendants 1 to 3. They have remained exparte. The first
defendant, Arjunan, had not chosen to come before the Court and contest
that he had independent income to purchase the item No.2 of the suit
properties. It is not even the case of the defendants 4 and 5 that the first
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
defendant had any independent income. Therefore, once the item No.1 of
the suit properties and the larger extent which was also sold are proved to be
ancestral property, then the item No.2 of the suit properties, which is
purchased out of the said nucleus, has rightly been held to be of joint family
property and a share has been allotted to the second plaintiff, minor
Deepika. He would further submit that even in the plaint, it is pleaded that
the sale is collusive and only to defeat the rights of the minor after the
relationship got estranged in the year 2010. The sale was effected on
30.10.2013 and immediately upon coming to know of the same, the suit was
filed in the year 2014 itself. Therefore, he would submit that the Trial Court
has rightly decreed the suit and he has no objection whatsoever in granting
the defendants 4 and 5, the protection as to the 1/2 share which belongs to
the first defendant.
H. Points for consideration :
12. Upon considering the rival submissions made on either side and
perusing the material records of the case, the following questions arise for
consideration:-
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
(i) Whether the item No.2 of the suit schedule property is the
separate/self-acquired property of the first defendant, Arjunan and whether
the second plaintiff is entitled to claim a share in the said property even
during the life time of the first defendant, Arjunan?
(ii) If the second plaintiff is entitled to a share in the item No.2 of the
suit properties, whether or not the purchasers namely, the defendants 4 and
5 are entitled to protection being bonafide purchasers and if so, to what
extent?
I. Question No.1 :
13. It is the admitted case of the parties that the item No.1 of the
schedule properties along with the larger extent, which is sold by a sale
deed, dated 08.03.2022 was the subject matter of the partition deed, dated
09.11.1966 marked as Ex.A-3. Upon a perusal of the said deed, it is clear
that those properties are ancestral in nature. Therefore, upon allotment to
Nachimuthu Goundar, it remained so and initially, the said Nachimuthu
Goundar along with his son, Arjunan, continued to be the coparceners.
Therefore, once the part of the said property is sold on 08.03.2002 and the
item No.2 of the suit properties is purchased, then, the same being
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
purchased out of the joint family nucleus, has the character of joint family
property. Even if the entire sale consideration cannot be said to be from and
out of the sale deed, dated 08.03.2002, still, even if a portion of the sale
consideration is proved to be from and out of the joint family nucleus and
when the parties have thrown their independent income or property along
with joint family property, the character of the property will only be the
joint family property and therefore, to that extent, the findings of the Trial
Court that the item No.2 of the suit properties is the joint family property,
purchased from and out of the joint family nucleus, cannot be found fault
with and I also hold accordingly. In view thereof, the second plaintiff,
being the daughter, is entitled to a share in the item No.2 of the suit
properties by her birth. Therefore, in the absence of claim from the sister of
Arjunan namely, the third defendant and since it is represented that she has
no claim against her brother by the learned counsel appearing on behalf of
the first defendant, the second plaintiff will be entitled to 1/2 share and the
first defendant will be entitled to 1/2 share. I answer the question
accordingly.
J. Question No.2 :
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
14. Even though the Trial Court has held that the purchase of the
defendants 4 and 5 is not bonafide, even the allegation in the plaint is that
the first defendant had willfully alienated the property, no allegation, as
against the defendants 4 and 5, has been proved that they had willfully
entered into the transaction. In that view of the matter, they are entitled to
protection to the extent of the share by their vendor namely, Arjunan. Since
it is held that the first defendant, Arjunan, is entitled to 1/2 share in item
No.2 of the suit properties, to that extent, the sale deed dated 30.10.2013
shall be valid and the defendants 4 and 5 will be entitled to the said 1/2
share of the said Arjunan. Accordingly, I answer the question.
K. The Result :
15. In the result,
(a) This Appeal Suit in A.S.No.286 of 2016 is partly allowed;
(b) The judgment and decree, dated 08.10.2015, in O.S.No.18 of 2014
on the file of the learned I Additional District and Sessions Judge, Erode
shall stand modified inasmuch as the clause (ii) & (iv) relating to the second
item of the suit property is concerned as follows:-
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
(i) That the second plaintiff is entitled to 1/2 share in the item No.2 of
the suit properties by metes and bounds. The purchase of the
defendants 4 and 5 by a sale deed, dated 30.10.2013 shall be valid in
respect of the remaining 1/2 share; and similarly;
(ii) If any amount of maintenance remains unpaid the same shall be a
charge over the first defendant's share in item No.1 of the suit
schedule properties;
(c) The decree is confirmed in all the other aspects;
(d) However, there shall be no order as to costs.
(e) Consequently, connected miscellaneous petition is closed.
01.12.2022
Index : yes
Speaking order
grs
To
1. The I Additional District Judge,
Erode.
2. The Section Officer,
VR Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
A.S.No.286 of 2016
D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.286 of 2016
and C.M.P.No.5062 of 2016
01.12.2022
https://www.mhc.tn.gov.in/judis
