Revathi vs Natarajan
2022 Latest Caselaw 6028 Mad

                                                                               SA.No.238/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 24.03.2022

                                                    CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                 SA.No.238/2022

                    Revathi                                                  .. Appellant /
                                                                                  Plaintiff

                                                        Vs.


                    1.Natarajan
                    2.Ganesan
                    3.Suresh
                    4.The Manager,
                      Ind Bank Housing Limited.,
                      Corporate Office : No.480, Annai Salai 3rd Floor,
                      Nandanam, Chennai – 35.                              .. Respondents /
                                                                              Defendants


                    Prayer:- Second Appeal preferred under 100 of CPC against the decree and

                    judgment dated 20.12.2018 passed in AS.No.52/2018 on the file of the

                    learned III Additional District Judge, Salem, confirming the decree and

                    judgment dated 04.07.2018 passed in OS.No.328/2009 by the learned I

                    Additional Subordinate Judge at Salem.


https://www.mhc.tn.gov.in/judis                          1
                                                                                          SA.No.238/2022




                                         For Appellant              :   Mr.R.Nalliyappan


                                                         JUDGMENT

(1) The plaintiff in the suit in OS.No.328/2009 on the file of the

learned I Additional Subordinate Judge, Salem, is the appellant in

the above Second Appeal.

(2) The appellant herein filed the suit in OS.No.328/2009 for granting

preliminary decree for partition and separate possession of 1/4th

share of plaintiff in the suit properties. The suit is also for

permanent injunction restraining the defendants from in any way

alienating or auctioning the suit property to anyone.

(3) It is the case of the plaintiff that the suit properties belonged the

plaintiff 's grandfather by name Thiru.P.Palanisamy. The plaintiff

described the suit properties as ancestral properties even though it

is admitted that the properties were purchased in the name of the 1st

defendant, the father of the plaintiff. It is the further case of the

plaintiff that the plaintiff came to know that the 1st defendant

SA.No.238/2022

obtained a loan from the UCO Bank of Puducherry by pledging the

1st item of the suit properties and that the said property is now put

to auction by the other defendants. Similarly, as regards 2 nd item, it

is stated that the same was purchased by the 1st defendant out of

joint family income. The 1st defendant mortgaged the suit 2nd item

for the loan borrowed for the business activities of a concern by

name M/s.Space Makers Pvt. Ltd., in which the plaintiff 's father/1st

defendant is not a partner or Director. Since the 1st defendant has

signed the loan papers as a guarantor, it is contended that the loan

obtained from the 5th defendant is not binding on the plaintiff.

Since defendants 1, 2 and 3 are not amenable for partition, it is

stated that the plaintiff was constrained to file the suit for partition.

(4) The suit was not contested by defendants 1, 2 and 3 / father and

other brothers of plaintiff. The 5th defendant filed a written

statement specifically contending that the suit is engineered by the

1st defendant who is the borrower and mortgagor in respect of the

suit property and that the suit is filed only to thwart the legal action

taken by the 5th defendant to proceed against the property of the 1 st

SA.No.238/2022

defendant to recover the amounts due. The plaintiff's father

namely, the 1st defendant filed a Writ Petition in

W.P.No.25816/2008 before this Court and it was dismissed on

01.10.2009 with a direction to the 1st defendant to prefer an appeal

before the Debt Recovery Tribunal within 10 days of receipt of the

order. However, the 1st defendant did not file any application

before the Debt Recovery Tribunal. It is contended that the present

suit is therefore filed by the plaintiff to save the 1st defendant and

the property from the provisions of SARFAESI Act and that the

suit is barred by limitation.

(5) The Trial Court after framing necessary issues found that the suit

property is the absolute property of the 1st defendant and hence the

1st defendant had every right to mortgage the suit property in

favour of the 5th defendant. The Trial Court further observed that

the suit is intended to defeat the rights of mortgagees who have

initiated action to recover the loan which was given to the 1st

defendant on the basis of securities furnished by the 1st defendant.

The Trial Court also found that the plaintiff/appellant has not

SA.No.238/2022

produced any document to show that the suit properties were

purchased by the 1st defendant out of the joint family property or

joint family income from the other properties. It is to be noted that

one of the items in the suit property is said to have been acquired

by the 1st defendant by virtue of a Settlement Deed executed by his

brother by name Thiru.Shanmugasamy. Therefore, it cannot be said

that the property obtained by a Settlement Deed executed by the

brother of the 1st defendant is the joint family property. The

properties have already been mortgaged in favour of the 5th

defendant and the 5th defendant is having substantial right to

proceed against the property in case money advanced to the 1st

defendant or to the 4th defendant cannot be recovered. Since the

plaintiff has not proved his case that the properties are joint family

properties, the Trial Court had no option except to dismiss the suit.

(6) Aggrieved by the judgment and decree of the Trial Court, the

appellant has preferred an appeal in AS.No.52/2018 before the

learned III Additional District Judge, Salem. The Lower Appellate

Court also held that the plaintiff is not entitled to the relief for

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partition. Aggrieved by the judgments and decrees of the Courts

below the above appeal is preferred by the plaintiff.

(7) In the Memorandum of Grounds of Appeal, the appellant has raised

the following substantial questions of law:-

1. Whether the Court below is dismissing the above suit for partition by holding that mere sale deed stands in the name of the 1st defendant, hence it cannot be declared that ancestral property?

2. Whether the Court below is correct in holding that the suit properties are not ancestral properties, especially when the 1st defendant had no capacity to purchase the suit property?

3. Whether the lower Court in dismissing the suit for partition especially when the defendants were set exparte, under such circumstances the plaintiff had established that suit properties were purchased from the income of the ancestral properties?

(8) When the property stands in the name of an individual, the

presumption is that the person who is shown as the alienee is the

exclusive owner of the property. In the present case, no document

SA.No.238/2022

or oral evidence let in to show that the existence of any Joint

family property or nucleous. It is not even indicated that the

plaintiff 's father had other joint family properties under his control

and that the other properties in which the plaintiff 's father is in

enjoyment are capable of yielding substantial income and that out

of such income the suit property could have been purchased. In the

present case, without establishing the factual contention that the

suit properties are ancestral in character, the plaintiff has come

forward to stall the proceedings initiated by the 5th defendant with

whom an equitable mortgage is created by deposits of title deeds by

the 1st defendant. Both the Courts have concurrently held that there

is no iota of evidence to show that the suit property is the ancestral

property of the plaintiff to be divided along with her father. It is

admitted that defendants 1 and 3 who are the plaintiff 's father and

brother remained ex-parte through out the proceedings. However,

the fact that the plaintiff 's father and brothers remained ex-parte

cannot be taken advantage by the plaintiff in the present suit. In

other words, by mere plea that the suit properties are the ancestral

SA.No.238/2022

property of plaintiff and his father, it cannot be accepted that the

suit properties are the joint family properties.

(9) The Courts below have applied their mind independently and

rendered findings on the basis of admitted facts and evidence on

record. This Court does not find any irregularity or illegality in the

findings of the Courts below. In view of the factual findings of the

Lower Courts this Court does not find any substance in any of the

substantial questions of law raised by the appellant.

(10) In the result, the Second Appeal is dismissed.

24.03.2022 cda Internet : Yes

To

1.The I Additional Subordinate Judge, Salem.

2.The III Additional District Judge, Salem.

3.The Section Officer VR Section, High Court Chennai.

SA.No.238/2022

S.S.SUNDAR, J.,

cda

SA.No.238/2022

24.03.2022

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