M/S.Mohan Breweries ... vs K.Moorthy
2022 Latest Caselaw 11195 Mad

                                                                                    A.S.No.21 of 2000


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 27.06.2022

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                                 A.S.No.21 of 2000

                     M/s.Mohan Breweries Distilleries (P) Ltd.,
                     rep. by M.D.Nandagopal,
                     having its administrative Office at
                     IInd Floor, Royala Towers,
                     Anna Salai, Chennai-2.                     ... 3rd Defendant/Appellant

                                                       Vs.
                     1.K.Moorthy
                     2.Subbulakshmi
                     3.Thurachi
                     4.Suseela
                     5.Durai
                     6.Kalai Selvan
                     7.Kannan
                     (Minor respondents 5 to 7 declared as major and
                     guardianship of their brother and natural
                     guardian (1st respondent) is discharged vide
                     Court Order dated 24.02.2022 made in
                     C.M.P(MD) No.5537/2017 in
                     A.S.No.21/2000)                            ...Plaintiffs/Respondents 1 to 7
                     8. Rajammal                                 ...1st Defendant/8th Respondent
                     9.K.Muthupandian                            ... IInd Defendant/9th Respondent




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                                                                                     A.S.No.21 of 2000


                     PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
                     against the judgment and decree dated 19.07.1999 made in O.S.No.
                     114/1995, on the file of the Principal Subordinate Judge, Nagercoil.

                                           For Appellant     : Mr.R.Devaraj
                                           For R2 to R4      : M/s.S.Hemalatha


                                                  JUDGMENT

The respondents are the plaintiffs. The appellant is the third

defendant and the respondents 8 & 9 are the defendants 1 & 2. The

respondents 1 to 7 filed a suit in O.S.No.114 of 1995, on the file of the

Principal Subordinate Court, Nagercoil for partition against the appellant

and the respondents 8 and 9 and separate possession. After trial, the trial

Court came to the conclusion that the plaintiffs are entitled to partition and

decreed the suit and passed the preliminary decree. Challenging the said

judgment and decree, the third defendant in the said suit has filed the

present appeal.

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2. According to the case of the plaintiffs, as per the plaint that the

plaintiffs 1 to 7 and the second defendant are the children of

Kalyanasundara Thevar, the first defendant is his wife. The said

Kalyanasundara Thevar purchased the first item of the suit property under a

registered sale deeds, dated 16.11.1967 and 12.06.1968 and from the date of

purchase, he was in possession and enjoyment of the property. He paid the

Tax also. The suit items Nos.2 to 5 are the ancestral properties. The said

Kalyanasundara Thevar died on 21.03.1988. The plaintiffs 1 to 7 and the

defendants 1 & 2 are the legal heirs of the Kalyanasundara Thevar and

therefore, they are subject to the Hindu Succession Act. After the death of

Kalyana Sundara Thevar, the plaintiffs 1 to 7 and the defendants 1 & 2 are

coparceners under the Hindu Succession Act. The plaintiffs 5 to 7 are the

minors. The plaintiffs are entitled to 7/9th share and the defendants 1 & 2

are entitled to 2/9th share in the suit schedule property. The plaintiffs and

the defendants 1 & 2 are jointly enjoying the suit schedule property. It has

now come to light that the defendants 1 & 2 have wasted the joint family

property with an intention of committing acts which are offensive or

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harmful to the plaintiffs. On 21.09.1994 the defendants 1 & 2 have sold the

item No.1 of the suit schedule property to the third defendant and at that

time the plaintiffs 5 to 7 are minors. They have sold the property without

any permission from the Court. The defendants 1 & 2 have no right to sell

the joint family property. The sale was not made for the welfare of the joint

family or for the welfare of the minors. The sale is not legally valid because

it is fraudulent. The value of the first item of the suit schedule property is

very high but they have sold the property at a low price. The above said

sale is not binding on the 7/9th share of the plaintiffs, therefore, the

plaintiffs are entitled to 7/9th share in the suit schedule property. The

plaintiffs seeks for partition from the defendants but they have refused.

Therefore, they have filed the suit for partition and for permanent

injunction.

3. The defendants 1 & 2 are exparte before the trial Court. The

third defendant resisted the suit by filing a written statement stating that the

averments contained in the plaint are all false. Further, it is stated that the

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first item of the suit schedule property is a joint family property. The said

property was purchased by Kalyanasundara Thevar and he maintaining the

property along with joint family property as a Kartha. After the death of the

Kalyanasundara Thevar, his eldest son the second defendant has

maintaining the suit property as a Kartha of the family. The plaintiffs and

the defendants 1 & 2 are not entitled to any share in the first item of the suit

schedule property. It is false to state that the defendants 1 & 2 are jointly

enjoying the suit schedule property. From the date of purchase on

21.09.1994 the third defendant has enjoying the property and after the date

of purchase the plaintiffs and defendants 1 & 2 are not entitled to joint

possession. After the date of purchase, the third defendant has got the

revenue records and Patta.

4. It is not correct to state that the defendants 1 and 2 sold the

joint family properties in order to make harm to the plaintiffs. After the

demise of Kalyanasundara Thevar, his eldest son, the second defendant took

care of the plaintiffs and as a Manager, he also maintained the properties.

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Kalyanasundara Thevar died on 21.03.1988. Since the second defendant did

not get enough income from the joint family properties to maintain the

family, he borrowed loans and gave education, food and meet out other

expenses. Hence, the second defendant sold the item No.1 to the third

defendant for valid consideration of Rs.1,54,071/- to repay the loan

borrowed for family expenses and to maintain the family. Since the said

property was sold for valid consideration and for the welfare of the

plaintiffs, the plaintiffs are not entitled to question the same. The first

defendant is also a party to the said sale. The young members of the joint

family are well known about the sale of the said property. No one objected

for the sale of the property. It is not correct to state that without prior

permission of the Court, the properties belonged to the minors could not be

sold. It is not correct to state that the said property was not sold for the

family expenses and also for the welfare of the minors and legal necessity.

It is not correct to state that in order to defeat the rights of the defendants 1

and 2, the sale deed has been forged. It is not correct to state that the said

property was sold for low price. The said property was sold by authorised

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persons for valid consideration for the welfare of the family members

including minors. Since the plaintiffs also availed the benefits of the sale

consideration through the sale deed dated 21.09.1994, the said sale deed

will bind the plaintiffs also. Therefore, the plaintiffs are not entitled to any

share in the item No.1 of the property. The second defendant is empowered

to sell the property. The plaintiffs have no locus standi to file a suit against

the second defendant in respect of item No.1 of the suit properties. The suit

was not valued properly. The Court fees was not properly paid. The item

No.1 of the suit property was under valued. Since the item No.1 of the suit

property is in possession of the third defendant, the suit for recovery of

possession ought to have been filed. The suit for partition is not

maintainable in law. The plaintiffs are not entitled to the reliefs sought for in

the suit. The third defendant is the owner of the property from 21.09.1994.

Since the plaintiffs did not seek for cancellation of the sale deed and also

did not seek for recovery of possession, the suit is not maintainable against

the third respondent in respect of the item No.1 of the suit property and

hence, the suit is liable to be dismissed. The plaintiffs, in collusion with the

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defendants 1 and 2 filed the suit for higher profits. Since the third defendant

purchased the suit property for valid consideration, the sale deed will bind

the plaintiffs. The plaintiffs did not file the suit for bona fide reasons. For

the aforesaid reasons, the suit is liable to be dismissed against the third

defendant in respect of the item No.1 of the suit property.

5. On the basis of the above pleadings, the learned trial Judge

framed the following issues for consideration:

(i) Whether the plaintiffs are entitled to get a 7/9 share in the

plaint schedule property?

(ii) Whether the plaintiffs are entitled to permanent injunction?

(iii) Whether the third defendant is a bonafide purchaser?

(iv)What is the remedy available to the plaintiffs?

6. In order to substantiate the case of the plaintiffs, on the side of

the plaintiffs, one witness was examined as P.W.1 and 14 documents were

marked as Ex.A1 to Ex.A14. In order to substantiate the case of the third

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defendant, 2 witnesses were examined as D.W.1 and D.W.2 and 11

documents were marked as Ex.B1 to Ex.B11.

7. After completing the trial and on hearing of arguments

advanced on either side, the learned trial Judge, considered the evidence

available on record, decreed the suit as mentioned above.

8. The learned counsel for the appellant would submit that the

first item of the suit property purchased by one Kalyanasundaram, who is

none other than the father of the respondents 1 to 7 & 9 and husband of the

8th respondent. He purchased the property in his name on 16.11.1967 and

item Nos.2 to 5 are all ancestral properties. The said Kalyanasundara

Thevar died on 21.03.1988 leaving behind the respondents as legal

representatives of the said Kalyanasundaram. The appellant purchased the

first item of the suit schedule property from the respondents 8 & 9 for

valuable consideration under a registered sale deed, dated 21.09.1994.

From the date of the sale deed, he took the possession and also enjoying the

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property. Now he is in possession of the first item of the suit property. On

the date of filing of the suit, first item of the property was in possession of

the appellant and the respondents 1 to 7 filed the suit for partition and they

have not paid the court fee under Section 37(1) of the Court Fee Act and

paid the fixed Court Fee under Section 37(2) of the Court Fee Act as if they

are in joint possession.

9. Further, it is submitted that the suit property is ancestral

property and it is joint family properties of respondents. The respondents 8

& 9 sold the property to the appellant and since the Kalyanasundaram died,

the 9th respondent is the eldest son and who is the Kartha as well as Manager

of the joint family and the respondents 8 & 9 sold first item of the property

to the appellant for the benefit of the joint family and interest of the minors

and also the marriage expenses of the daughters of the Kalyanasundaram.

Therefore, even though in the recital of the sale deed it is not specifically

stated, but it is stated that for the inevitable expenses of the family.

Therefore, the appellant is the bonafide purchaser with valuable

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consideration without any notice of defeat in title. Since the appellant's

property surrounded with the first item of the property on three sides except

northern side and he purchased the property for erecting the Wind Mill and

after purchasing the property, he has also erected the windmill. After the

death of the Kalyanasundara Thevar the land was kept as fallow land and

there was no cultivation carried out and there is no income. The first item

of the suit schedule property is the adjacent land of the appellant and he has

established the Wind Mill, since it is adjacent to Wind Mill, after the

purchase, he fenced the first item of the property annexed with his existing

property, where, already Wind Mill was established. Since the suit property

is ancestral property and the respondents 8 & 9 sold the property for the

legal necessity, therefore, it binds on the other coparceners, now, after

selling the property, all the respondents colluded together with each other

and the respondents 8 & 9 set up the respondents 1 to 7 and instigated to file

the present suit for partition including the property sold to the appellant.

Therefore, the sale made in favour of the appellant will bind all the

respondents. The trial Court failed to appreciate that after the death of the

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Kalyanasundaram Thevar, his wife and eldest son are managing the property

and for legal necessity for the benefit of the members and interest of the

minors, in order to run the family in a peaceful manner and also educate the

minor children and give a marriage to the daughters sold the property, it will

bind all the members of the joint family and held that the sale made in

favour of the appellant will not bind and therefore, the suit was decreed and

preliminary decree was passed which is erroneous. Therefore, the appeal

has to be allowed regarding first item of the suit property.

10. The learned counsel for the respondents 1 to 7 would submit

that admittedly, the suit properties are joint family properties. After the

death of the Kalyanasundara Thevar on 21.03.1988, the appellant without

the knowledge of the respondents 1 to 7 purchased the property from the

respondents 8 & 9. They are not entitled to any exclusive right over the

property. Further, he would submit that the first item of the property was

not sold by the respondents 8 & 9 for the benefit of joint family or the

interest of the minors or to meet out the marriage expenses of the female

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members. The sale is not for legal necessity of the joint family. Even, the

recital does not shows that the 9th respondent as the Kartha as well as

Manager of the family and for the interest of the minors or the benefit of the

joint family sold the property. The recital does not show that on behalf of

the other coparceners, he sold or on behalf of the minors he executed the

sale deed or they have obtained any permission from the Court for selling

the minors share. Therefore, the appellant is not the bonafide purchaser for

valuable consideration and hence, the sale in favour of the appellant made

by the respondents 8 & 9 would not bind the other respondents 1 to 7 and

they were not party to the sale deed. Even at the time of sale, the

respondents 1 to 4 were major and respondents 5 to 7 were minors and they

did not obtain the signature from the respondents 1 to 4 and the respondents

1 to 4 were never aware of the sale made by the respondents 8 & 9 in favour

of the appellant on behalf of the respondents 1 to 4. Therefore, the sale

made by 8th and 9th respondents will not bind the respondents 1 to 7 since

at the time of sale, respondents 5 to 7 are the minors, therefore, without

permission of the Court, the minors share cannot be sold. He would further

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submit that even during the life time of Kalyanasundara Thevar, he dugged

the well. The daughters of the Kalyanasundara Thevar married much earlier

to the sale, therefore, they have not spent any marriage expenses. In this

case, the respondents 8 & 9 as first and second defendants in the suit

remained ex-parte before the trial Court and they have not filed written

statement. They have not come to the witness box and stated that the first

item of the suit schedule property was sold for the benefit of the joint family

or interest of the minors or for the legal necessity. Therefore, in the absence

of any recital regarding the benefit of the joint family he sold the property

which will not bind and even the property was sold at a very low price and

on the date of filing of the suit, the possession was with the respondents in

common enjoyment. The appellant never took the possession. The appellant

has not established that he was in possession. The documents filed by the

appellant for proving the possession is not for the suit item No.1 of the

property. Even otherwise the documents have been obtained for the purpose

of filing the suit, the same also no binding the respondents 1 to 7. The trial

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Court has rightly appreciated the oral and documentary evidence and

decreed the suit for partion and separate possession.

11. Heard the learned counsel appearing for the appellant and the

respondents, perused the pleadings, issues framed by the trial Court and oral

and documentary evidence adduced and produced by both parties.

12. The suit items 1 to 5 are the joint family property of one

Kalyanasundara Thevar and he died on 21.03.1988 leaving behind the

respondents in the appeal as his legal representatives and he died intestate

and also after the death, the respondents as coparcener of the joint family

they are entitled to share in the item Nos.1 to 5 of the suit property.

Admittedly, under Ex.B2, the appellant purchased the first item of the suit

property from the respondents 8 & 9 alone. Since all the suit properties are

joint family properties, the appellant has purchased only one item of the

property from the wife of the Kalyanasundara Thevar and one the sons of

the Kalyanasundara Thevar and other legal heirs not party to the sale deed.

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No doubt, it is a settled proposition of law that if it is a joint family ancestral

property and if the Kartha or Manager of the joint family sells the property

for the benefit of the members of the joint family or legal necessity to the

family, all the coparcener need not be a party to the sale deed, but one

condition is that the suit property has to be sold for the legal necessity of the

family. As a Kartha or Manager of the family, the elder member of the

family can sell the property, but, whereas, in this case, recital does not show

that the respondents 8 & 9 sold the property as Kartha or Manager of the

joint family for the benefit of the family or for the interest of the

respondents 5 to 7, who were minors at the time of sale by obtaining the

permission from the Court as a guardian of the minors.

13. Therefore, in the absence of the same the sale will not bind the

respondents 1 to 7, who were not party to the said sale deed. Though the

appellant claimed that he is the bonafide purchaser for valuable

consideration, the second respondent sold as Kartha which is against the

recital. Further, the first and second defendants remained ex-parte and they

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colluded with the other respondents, at the instigation of the respondents 8

& 9 the other respondents filed the suit. But however, the appellant has not

established the said fact. Though the appellant has stated that he has taken

the possession and erected Wind Mill but he has not established the said

fact. Even though there is no cultivation, but whereas, the respondents

established that there was a well, electricity connection, pumbset room. The

photographs filed by the respondents clearly show that there is no Windmill

and there is electricity connection and Well, therefore, the case of the

appellant is not true. The appellant has not established that though it is a

settled proposition of law that the plaintiffs have to prove their case on their

own strength, they cannot take advantage of the loop-holes of the

defendants, when it is a suit for partition. Both the parties are plaintiffs as

well as defendants each other. Both are equally liable to establish their

respective cases.

14. Admittedly, the properties are the ancestral properties. The

respondents are the coparcener of the joint family property and the

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properties admittedly not sold for the benefit of the members of the joint

family. Though the appellant tried to establish that it was sold only for the

benefit of the members of the joint family, he admitted that for the marriage

expenses of the female coparcener, the respondents 8 & 9 sold the property,

but whereas, he could not establish that at the relevant point of time any

female members or coparceners marriage took place. He has not established

the fact that the consideration paid by him was utilised for the education

expenses of minors or for purchasing the property for the welfare of the

joint family to meet out the family expenses or for construction of any

house. Admittedly, 9th respondent was residing in Chennai. The 8th

respondent also residing along with son the second respondent in Chennai,

but the respondents 1 to 7 are in the Village and therefore, even the

respondents 1 to 7 were not aware of the sale and they have not benefited

out of the sale consideration. When a person pleads that the property was

sold for the benefit of the joint family or for the interest of the minors, the

person, who pleads has to prove it. The respondents 1 to 7 denied that the

properties were sold for the interest of the minors or compelling

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circumstances of the family to meet out the expenses or any legal necessity

arises, then the person claims that it is sold for the benefit of the joint

family, has to prove it. Though the respondents 1 to 7 as a plaintiffs

established their case, when the appellant pleads that the sale is for the

benefit of joint family, it is absolutely Ex.B2 sale deed, does not show that

the respondents 8 & 9 sold as a Kartha and Manager of the joint family and

the property was sold for the benefit of the joint family or interest of the

minors or for the legal necessity and in the absence of the same, it is for the

appellant to establish the case contrary to the recital and the recital is silent

about the purpose for which sold or under what capacity the vendors sold

the property. Admittedly, in this case, the appellant has not established even

though there was no recital in the sale deed, but during the evidence had

attempted to establish, but he failed to establish and the respondents 1 to 7

have proved that the appellant is not bonafide purchaser without any notice

for valuable consideration and therefore, in this case, the appellant failed to

establish that he was the bonafide purchaser for valuable consideration

without any notice, his sale bind all the respondents including the

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respondents 1 to 7 and therefore, in the absence of the same, he is not

entitled to get any equitable relief.

15. The trial Court rightly appreciated the pleadings, oral and

documentary evidence and found that the respondents have established their

case for partition and separate possession, the appellant has not established

his defence. Further, as far as the payment of Court fee is concerned though

the appellant has stated that from the date of sale deed he was in possession,

but he has not established that he is in possession. Even patta stands in his

name only from 1997. The suit filed in the year 1995, the documents relied

on by the appellant for establishing the possession are during the pendency

of the suit, therefore, it will not bind the respondents. In this case, the

appellant has not established that as on the date of filing of the suit, he was

in possession and the plaintiffs were in out of possession, therefore payment

of court fee under Section 37(1) would not arise. The respondents 1 to 7

have filed the suit for partition claiming joint possession either physical or

constructive, are liable to pay the Court fee under Section 37(2) of the Tamil

Nadu Court Fees and Suits Valuation Act. Therefore, the appellant has not

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established their case and the respondents 1 to 7 are the plaintifs they have

established the case and as far as items Nos.2 to 5 is concerned, there is no

dispute, therefore, the respondents each are entitled to 1/9 share. As far as

the first item is concerned, the appellant has not established that the

respondents 8 & 9 sold the property for the benefit of the members of the

joint family and interest of the minors and bind all the coparceners.

Therefore, in the absence of the same, the plaintiffs have established that the

sale is not binding the respondents 1 to 7, therefore, the respondents 1 to

7 /plaintiffs are entitled to 7/9 share in all the item of the property.

Therefore, the preliminary decree passed by the trial Court is in order. The

first appellate Court is a fact finding Court and this Court also re-appreciate

the pleadings, both oral and documentary evidence and finds that the

respondents 1 to 7 as plaintiffs have proved their case and they are entitled

for 7/9 share and each are entitled to 1/9th share and therefore, this Court

does not find any grounds to set aside the judgment rendered by the trial

Court and there is no reason to interfere with the judgment of the trial Court.

Therefore, this appeal is liable to be dismissed.

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16. In the result, the appeal fails and the same is dismissed and the

judgment and decree of the trial Court is confirmed. In a recent judgment of

the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549,

Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil

Valsan and others, it has been held as follows:-

''33.We are of the view that once a preliminary decree is

passed by the Trial Court, the court should proceed with the case

for drawing up the final decree suo motu. After passing of the

preliminary decree, the Trial Court has to list the matter for taking

steps under Order XX Rule 18 of the CPC. The courts should not

adjourn the matter sine die, as has been done in the instant case.

There is also no need to file a separate final decree proceedings.

In the same suit, the court should allow the concerned party to file

an appropriate application for drawing up the final decree.

Needless to state that the suit comes to an end only when a final

decree is drawn. Therefore, we direct the Trial Courts to list the

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matter for taking steps under Order XX Rule 18 of the CPC soon

after passing of the preliminary decree for partition and separate

possession of the property, suo motu and without requiring

initiation of any separate proceedings.

34. We direct the Registry of this Court to forward a

copy of this judgment to the Registrar Generals of all the High

Courts who in turn are directed to circulate the directions

contained in paragraph ‘33’ of this judgment to the concerned

Trial Courts in their respective States.''

17.As per the above latest decision of the Hon'ble Supreme Court,

a party need not file a final decree application separately. The Court itself

can suo motu initiate final decree proceedings after passing the preliminary

decree. Therefore, the appellant is directed to divide the property by metes

and bounds and hand over the possession to the respondents as per the

preliminary decree passed by the trial Court, within a period of two months

from the date of receipt of a copy of this judgment, otherwise, the trial Court

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is directed to initiate suo motu final decree proceedings and appoint an

advocate commissioner and proceed with the same and pass a final decree.

Since already the suit is pending from 1995, all the final decree proceedings

shall be completed within a period of six months from the date of its

initiation. Registry is directed to send the original records to the trial Court

concerned along with the judgment and decree made in this appeal within a

period of fifteen days from the date of this judgment. No costs.

27.06.2022 Index : Yes / No Speaking Order : Yes / No am

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To

1. The Principal Subordinate Judge, Nagercoil.

2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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P.VELMURUGAN, J.

am

A.S. No.21 of 2000

27.06.2022

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