Madras High Court
Unknown vs Dhatchanamoorthy on 23 June, 2022
A.S. (MD) No.152 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :23.06.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.152 of 2008
1.J.V.Kothari
2.A.Kiran
3.A.Megha Kothari
4.A.Poram Kothari
5.A.Thrisha Kothari
6.V.Sabitha Devi
(Memo recorded in Court and recorded as A6 died and A1, who is already
on record and recorded as LR of the deceased A6 vide order of this Court
made in A.S.No.152 of 2008, dated 4.2.2020)
(A5 declared as major and discharged from the guardianship vide order of
this Court made in C.M.P.No.1592 of 2020 in A.S.No.152 of 2008, dated
13.2.2020) :Appellants/Defendants 2 and 7 to
11
Vs.
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1.Dhatchanamoorthy
2.Vedamoorthy
3.Ramamoorthy
4.Gurumoorthy
5.Sundaramoorthy
6.Raganbalamoorthy
7.Thirumalaimoorthy :Respondents 1 to 7/Plaintiffs
8.Periannan
9.K.P.M.S.Rajesh
10.Manoj Kumar
11.Kamala Devi ... Respondents 8 to 11/Defendants 1
and 4 to 6
(Respondents 8 and 9 remained ex-parte in the suit)
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
1908 against the judgment and decree made in O.S.No.302 of 2004, dated
11.5.2007, on the file of the Additional District Judge, Fast Track Court
No.II, Madurai.
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A.S. (MD) No.152 of 2008
For Appellants : Mr.M.Rajaraman
For Respondents : No appearance
JUDGMENT
The Appeal Suit is directed against the judgment and decree
made in O.S.No.302 of 2004, dated 11.5.2007, on the file of the Additional
District Judge, Fast Track Court No.II, Madurai.
2.The respondents 1 to 7 are the plaintiffs and the appellants are
the defendants 2 and 7 to 11 in O.S.No.302 of 2004, on the file of the
Additional District Judge, Fast Track Court No.II, Madurai.
3.The respondents have filed the suit for partition of 7/8th share in
the suit properties and for permanent injunction as against the defendants 2
and 7 to 11. The trial Court, after trial, decreed the suit and passed a
preliminary decree for 7/8th share and granted permanent injunction.
Challenging the said judgment and decree passed by the trial Court, the
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A.S. (MD) No.152 of 2008
defendants have filed the present appeal suit.
4.The brief facts of the plaint reads as follows:
The suit properties are situated in Madakulam, Nagari, Karadikal,
Puthu Thamaraipatti village in Madurai north and south Taluks and in
Thirumangalam Taluk, Madurai District. The Plaintiffs and the first
defendant are the members of the Hindu joint family. The first defendant is
the Kartha and Manager of the joint family and items 1,2,5 to 9 and 13 and
some other properties belonged to the joint family of the first defendant and
his elder brother K.S.Kumar Kone and in the partition in 1938, the above
said properties were allotted to the first defendant. Item Nos. 3,4 10 to 12
are purchased in the name of the first defendant out of the income from the
ancestral joint family properties and from the sale proceeds of item No. 1
and 2. All Items of properties are joint family properties of plaintiffs and the
first defendant. The first defendant had fallen prey to the evil design
hatched by Sivasubramanian Chettiar, father of defendants 4 and 5 and
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A.S. (MD) No.152 of 2008
husband of the sixth defendant and at his instance, the first defendant had
executed a sale deed in favour of the defendants 2 and 3 in respect of item
Nos.3 and 4 on 25.9.92 and thereafter, it was repurchased by the first
defendant. The first defendant and the plaintiffs are the co-parcenors to the
entire extent of land and the plaintiffs are entitled to 1/8th share in the suit
properties. Due to misunderstanding between the plaintiffs and the first
defendant, they got separated without causing disruption to the joint family
nucleus. Hence the plaintiffs have sent a registered notice to the defendants
1 to 6 with a copy to the Tahsildar, Vadipatty and the defendants 2 and 3
sent a reply with false allegations. Pending suit, third defendant died on
13.12.2005 and defendants 7 to 11 were impleaded as legal heirs .Suit items
1 to 14 are joint family properties of the first defendant and the plaintiffs
and the present suit is filed to convert the joint possession into separate
possession and as such the plaintiffs are entitled for partition. Hence the
suit for partition and for permanent injunction.
5.The defendants 2 and 3 have filed a written statement and the
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brief facts of the same reads as under:
The suit is not maintainable either under law or on facts. It is false
to state that all the suit properties are joint family properties and suit items
1,2 and 5 to 9 are ancestral properties. Items 6 to 9 are house properties and
they cannot yield any income. The sale of lands in S.Nos.11/2 and 12/2 of
Nagari village to the defendants 2 and 3 should have been signed by the
plaintiffs instead the first defendant alone signed the same. The first
defendant has no right over the said lands and hence the first defendant
agreed to repurchase the same. In the year 1992, the defendants 2 and 3
purchased the suit properties for valuable consideration of Rs.2,60,000/-
The sale consideration was given to the first defendant. The second and
third defendants have leased out the same to the third party. The first
defendant with connivance of the plaintiffs have created a mortgage deed
dated 3.4.1996 for having obtained a loan of Rs.4 lakhs from one
Karuppasamy showing the properties which was sold to the above said
defendants on 25.9.1992 as mortgaged properties even after registration of
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sale deeds by the first defendant in favour of these defendants. For the
notice sent by the plaintiffs, these defendants sent a suit reply with true facts
The suit has not been properly valued and proper court fee has not been
paid. Hence the suit has to be dismissed with costs.
6.The averments in brief in the additional written statement of the
second defendant, which was adopted by defendants 7 to 11, are as follows:
The plaint allegation that suit items 1 and 2 are joint family
properties of the first defendant and other properties are purchased by the
sale proceeds of the items 1 and 2 and the suit properties are acquired in the
name of the first defendant are all false. Suit items 3 and 4 are self acquired
properties and it has nothing to do with the joint family property and the
plaintiffs have no right over the same. The above defendant and the
deceased third defendant purchased the suit items 3 and 4 for valuable
consideration and they are bona-fide purchasers for valuable consideration
and hence the same cannot be questioned and those properties are not liable
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A.S. (MD) No.152 of 2008
for partition. The sale proceeds from the suit items 1 and 2 are not sufficient
to acquire the other items. Since the plaintiffs have not impleaded the other
purchasers, the suit is bad for non-joinder of necessary parties and the suit
may be dismissed with costs.
7.On the above said pleadings, the trial Court has framed the
following issues:
1.Whether the plaintiffs are entitled for preliminary decree for
partition of the Plaintiffs' 7/8 share as prayed for in the plaint?
2.Whether the plaintiffs are entitled to permanent injunction in
respect of items 3 and 4?
3.Whether the allegation that the properties comprised in S.No.
11/2 and 112/2 are self acquired properties of defendants 2 and 3 as stated in
the Written statement are correct?
4.To what relief the plaintiffs are entitled?
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8. In order to substantiate the case of the parties, during trial on
the side of the plaintiffs, one Vedhamoorthy was examined as P.W.1 and
Ex.A1 to A10 were marked. On the side of the defendants, one J.V.Kothari
was examined as D.W.1 and Ex.B1 to Ex.B10 were marked. After trial, and
upon hearing the arguments advanced on either side, the suit is decreed as
prayed for as aforesaid, with costs.
9.Challenging the same, the defendants have failed the present
appeal suit on the following grounds:
The appellants have stated that items 3 and 4 of the suit
properties are self acquired properties of the first defendant in the suit .The
second and third defendants are the bona-fide purchasers without any notice
for valuable consideration and the trial Court had erred in holding that
items 3 and 4 are the ancestral properties which was purchased from the
income derived from the joint family nucleus and the first defendant is the
father of the respondents/plaintiffs. Even assuming that the properties are
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the ancestral properties, the first defendant as kartha of the family has got
every right to sell the properties for the benefit of the family. Therefore the
sale was made by the Kartha of the family and by the other co-parcenors.
There fore they cannot question the sale made by the first defendant in
favour of the defendants 2 and 3 and they also subsequently sold the said
properties to the third party and also rented out the properties. Therefore
the trial Court had failed to consider that the item Nos.3 and 4 which were
purchased by the second and third defendants for valuable consideration
without notice and they also got other items of properties. Therefore as per
equity, items 3 and 4 come to the share of the plaintiffs. They raised a
ground that the other defendants who are purchasers from the first
defendant were not added as parties to the suit and hence the suit is bad for
non joinder of necessary parties and therefore, the respondents plaintiffs are
entitled to partition over item Nos.3 and 4 of the suit schedule properties.
10.The learned counsel for the appellants mainly contended that
the defendants especially the defendants 2 and 3 are the bona-fide
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purchasers of item Nos.3 and 4 of the suit properties for valuable
consideration without notice of the defect and they are entitled for the
relief of equity and further he would submit that item Nos.3 and 4 are the
self acquired properties of the first defendant and therefore he sold the
properties to the defendants 2 and 3 and the plaintiffs and the first
defendant have colluded with each other to defeat the claim of the
defendants 2 and 3 and filed the suit and hence they are not entitled for
partition. It is the self acquired property of the first defendant and even
otherwise, he is the Kartha of the family of the plaintiffs and as the Kartha
of the family, he has got power to sell the property for the interest of the
joint family and the defendants 2 and 3 purchased items 3 and 4 for valuable
consideration ,therefore, the equitable relief has to be granted.
11.The learned counsel for the respondents/Plaintiffs would
submit that the suit properties are joint family properties of the first
defendant and the plaintiffs and the first item of the suit properties came to
the hands of the first defendant and he got the joint family property and as
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Kartha of the family he has developed the properties with the ancestral
nucleus and sold the items 3 and 4 to the defendants 2 and 3 under Ex.B1
and ExB2, Sale deed executed by the first defendant and out of the joint
family nucleus, the first defendant purchased items 3 and 4 of the suit
properties. Since the item Nos.3 and 4 are purchased from the income of
the joint family nucleus, therefore, items 3 and 4 are also ancestral
properties and the first defendant had no independent income and he has
the source only from the agricultural land and he had purchased the
properties only from the ancestral nucleus and therefore, all the properties
stand in the name of the first defendant are the ancestral properties and the
first defendant and the plaintiffs are the co-parcenors of the properties.
However, the second and third defendants with the connivance of one
Sivasubramanian arranged for loan transaction by way of conditional sale
deed. However, for one reason or other with the connivance of the said
Sivasubramanian the first defendant sold the properties under Ex.B1 and
Ex.B2, however, Ex.B5 clearly shows that item No.3 and 4 are purchased
from the joint family nucleus.
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12.Though the learned counsel for the appellants would submit
that Ex.B1 and Ex.B2 shows that item No.3 and 4 of the properties are self
acquired properties of the first defendant, however, Ex.B5 clearly shows
that the first defendant purchased item Nos.3 and 4 from the sale proceeds
of the ancestral properties. Therefore, once it is stated that under Ex.B5
item Nos. 3 and 4 are purchased from the joint family nucleus and as the
first defendant is the father of the plaintiffs, the plaintiffs and the first
defendant are the co-parcenors and all the properties stand in the name of
the Kartha and it cannot be stated since the properties stand in the name of
Kartha of the family it is a self acquired property of the Kartha. It is the
burden on him to prove that the properties standing in his name is only self
acquired properties and it has to be established. It is the presumption that
all the properties standing in the name of co-parcenors are only ancestral
properties and that all the co-parcenors have share in the said properties,
whereas, in this case Ex.B1 and Ex.B2 shows that item Nos.3 and 4 are self
acquired properties of the first defendant. On the other hand, Ex.B5 clearly
shows that item Nos 3 and 4 purchased from the joint family nucleus and
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unless it is contrarily proved and the first defendant has not come to the
witness box to adduce that those properties are self acquired properties.
Therefore in the absence of any evidence to show that item Nos.3 and 4 are
self acquired properties or purchased from the independent income of the
first defendant, this Court found that all the properties are ancestral
properties and even item Nos. 3 and 4 are purchased from the ancestral
nucleus though it stands in the name of the first defendant, it is also an
ancestral property. Therefore, even otherwise, the property owned by the
co-parcenors stand in the individual name and purchased from the own
income thrown into common hutch pot, it become an ancestral property.
13.Further, in this case, the plaintiffs proved that all the
properties are ancestral properties and either the first defendant or the other
defendants have not proved that they are not purchased from the joint
family nucleus and the same are self acquired property of the first
defendant. Therefore all the properties including item Nos.3 and 4 of the
suit properties are also ancestral properties.
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14.Now the point for consideration is that whether the defendants
2 and 3 are the bona-fide purchasers for valuable consideration without any
notice of defect?
15.It is the consistent case of the respondents/Plaintiffs that the
suit items 3,4,10 to 12 and 14 were acquired by the first defendant with the
income of ancestral joint family properties and with the sale proceeds of
items 1 and 2 and hence, the properties acquired in the name of the first
defendant as Manager of the joint family had become the joint family
properties in the hands of the first defendant and the plaintiffs. All the items
are joint family properties of the plaintiffs and first defendant.
16.The learned counsel for the appellants would submit that all
the properties are self acquired properties of the first defendant and even
otherwise, the second and third defendants have purchased the said
properties for valuable consideration without notice. Therefore, they are
entitled for equitable remedy, whereas, Ex.B5 clearly shows that it is an
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ancestral property and that item Nos.3 and 4 were purchased from the sale
proceeds of the ancestral properties under Ex.B5. Therefore once it is shown
that item Nos. 3 and 4 are purchased from the ancestral nucleus, they are
also ancestral properties. The appellants have admitted during the cross
examination that they are aware of the recital of Ex,B5. The parent
document of item No.3 and 4 is Ex.B5 and based on the said sale deed, the
defendants 2 and 3 purchased item Nos.3 and 4 of the suit schedule
properties. Ex.B5 recital clearly shows that item Nos.3 and 4 purchased
from the ancestral nucleus and the sale proceeds of the ancestral joint family
properties. If that be the case, defendants 2 and 3 ought to have made an
enquiry about the character of the properties and they also should have
obtained consent from the other co-parcenors, the plaintiffs. In this
case,after seeing the recital of Ex.B5, they have not made any enquiry and
therefore respondents 2 and 3 are not bona-fide purchasers and the
appellants have not proved that the first defendant sold item No.3 and 4 of
the suit property for the legal necessity of the joint family or for the
interest and benefit of the joint family. In the absence of the same, the
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appellants cannot say that they are the bona-fide purchasers and therefore
they are not entitled for the relief of equity. There is no necessity for the
plaintiffs to sell the items 3 and 4 of the suit properties to the 2 and 3
defendants. Therefore the sale of items 3 and 4 is not for the interest of the
joint family. At the best, the defendants 2 and 3 have purchased the
undivided half share from the first defendant and they cannot claim any
exclusive right over item Nos.3 and 4 and even though the revenue records
transferred in the name of defendants 2 and 3,they are not the absolute
owners and they are only entitled to claim share of first defendant alone
and not more than that. Therefore, the trial Court has rightly decreed the
suit and rejected the claim of the appellants/defendants and held that all the
properties are ancestral properties including item No.3 and 4 and also found
that the respondents 2 and 3 are not bona-fide purchasers for valuable
consideration without notice and further Ex.B5 amply make it clear and
D.W.1 also admit in his evidence that item Nos.3 and 4 are purchased based
on Ex.B5 which clearly shows that item No.3 and 4 are purchased from the
ancestral nucleus ie., by selling items 1 and 2 of the suit properties. The
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appellants are not entitled to any relief much less the relief of equitable
remedy. Since because the sale deeds are executed in favour of defendants
2 and 3 and they have also rented out and leased out the property to third
parties, it cannot be stated that they are entitled for the relief.
17.Though the learned counsel for the appellants would submit
that the first defendant sold the property by way of Ex.A10 in favour of
third party, they have not been impleaded as party to the lis and hence, the
suit is bad for non-joinder of necessary parties. It is a very clear case of the
plaintiffs that the first defendant is Kartha of the joint family and
defendants 2 and 3 are aware of the fact that under Ex.B5 and Ex.B6, items
3 and 4 were purchased from the sale proceeds of ancestral properties.
Therefore the appellants are aware of the fact that these properties are
ancestral properties and the first defendant had sold some of the properties
and the appellants have not established that the first defendant sold the
property only for necessity of the joint family and with the consent and
knowledge of the co-parcenors. Though the Kartha of the family has got
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every right to sell the property for the family necessities, but the first
defendant has not come to the witness box and stated anything about the
sale is for the necessity and benefit of the joint family. It is for the appellants
to establish that some of the properties are sold by the Kartha of the family
only for the benefit of the joint family or out of necessity Kartha has sold
the same and hence the appellants are not entitled for any relief much less
an equitable relief. Moresoever, the respondents/Plaintiffs, especially P.W.1
in his evidence stated that there is no necessity arose to sell the property for
the benefit of the joint family. Further, he reiterated that there was no need
to sell any of the property for the benefit of the joint family. Therefore the
suit is not bad for non-joinder of necessary party. A reading of the entire
pleadings, oral and documentary evidence and judgment of the trial
Court,the Court below has rightly appreciated the entire oral and
documentary evidence and come to a correct conclusion and the appellant
does not make out any ground for interference. Thus the first appeal is
devoid of merits and liable to be dismissed.
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18.Accordingly, the first appeal stands dismissed and the
judgment and decree of the Court below is hereby confirmed. No costs.
Index : Yes / No 23.06.2022
Internet:Yes/No
vsn
To
1.The Additional District Judge,
Fast Track Court No.II,
Madurai.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No.152 of 2008
P.VELMURUGAN, J.
vsn
JUDGMENT MADE IN
A.S. (MD) No.152 of 2008
23.06.2022
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