Madras High Court
Swaminathan (Died) vs Uma Maheshwari on 31 March, 2022
A.S. (MD) No. 75 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 75 of 2016
1. Swaminathan (died)
2. Lakshmipriya ... Appellants / Plaintiffs
(1st appellant died and the 2nd appellant, who
is already on record is recorded as legal heir
of the deceased 1st appellant vide Court
order dated 20.01.2022 made in A.S. (MD)
No. 75 of 2016 by SAIJ)
Vs.
1. Uma Maheshwari
2. Cholamandalam Finance,
Represented by its Branch Manager,
South Street,
Thanjavur Town,
Thanjavur District.
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A.S. (MD) No. 75 of 2016
3. The Regional Transport Officer,
Regional Transport Office,
No.1, Vallam Road,
Thanjavur Town,
Thanjavur District.
4. Nichalson Co-operative Town Bank,
Represented by its Special Officer,
East Street,
Thanjavur Town,
Thanjavur District.
5. M.Jayanthi ... Respondents / Respondents
PRAYER: Appeal Suit filed under Section 96 r/w under Order 41 Rule 1 of
the Civil Procedure Code, 1908 against the judgment and decree of the
learned II Additional District and Sessions Judge, Thanjavur, dated
22.09.2015 in O.S. No. 65 of 2010.
For Appellants : Mr.K.Guhan
For Respondents : Mr.K.K.Senthil for R1
Mr.C.Satheesh
Government Advocate for R3
No appearance for R2,R4&R5
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A.S. (MD) No. 75 of 2016
JUDGMENT
This Appeal has been preferred challenging the judgment and decree of the
learned II Additional District and Sessions Judge, Thanjavur, dated
22.09.2015 made in O.S. No. 65 of 2010.
2. The appellants are the plaintiffs; the 1st plaintiff is the father of the 2nd
plaintiff; the 1st defendant is the wife of the deceased son of the 1st plaintiff;
the other defendants are formal parties; the case of the plaintiffs is that the
suit properties are joint family properties of the plaintiffs and the deceased
son of the 1st plaintiff, namely, Mahendran; the 1st plaintiff and his wife, late
Jamunabai were working in the Government Department and got retired;
from and out of their retirement benefits, Item Nos.1 to 3 of the 'A' schedule
properties and 'C' schedule properties were purchased; 'B' schedule
properties are the jewels belonged to the wife of the 1st plaintiff and the
mother of the 2nd plaintiff; the said jewels were pledged by the deceased
Mahendran for purchasing a Van and he received a loan of Rs.1,85,000/-
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A.S. (MD) No. 75 of 2016
(Rupees One Lakh and Eighty Five Thousand only) from the 2nd and 5th
defendants; the 2nd plaintiff had paid the jewel loan; during the life time of
Mahendran, he used to hire the vehicle for rent by appointing a driver, one
Murali and was paying the loan installments to the 2nd defendant; after his
demise, the 2nd plaintiff paid the installments through the said Murali; the 'A'
schedule properties were purchased before the marriage of Mahendran with
the 1st defendant; the plaintiffs and the deceased Mahendran were living in
the 'A' schedule properties as joint family; after his marriage with the 1st
defendant, they lived as joint family with the plaintiffs; after the demise of
Mahendran, the 1st defendant claimed exclusive right over the suit
properties; hence, the plaintiffs have filed the suit for partition; since the 1 st
defendant did not come forward to effect the partition, the plaintiffs have
filed the suit for claiming the relief of partition and other reliefs.
3. The 1st defendant resisted the suit by stating that Item Nos.1 and 2 of 'A'
schedule properties were the self-acquired properties of her deceased
husband Mahendran; the 1st defendant was living with the deceased
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A.S. (MD) No. 75 of 2016
Mahendran in the said house only till his life time; the deceased Mahendran
did not avail any money from the 5 th defendant; hence, the plaintiffs are not
entitled to get any share in the suit properties; the jewels shown in the 'B'
schedule properties belonged to the 1st defendant and they were given by her
father during her marriage and the same were pledged by her deceased
husband with the 4th defendant; it is false to state that the 2nd plaintiff has
repaid the loan; since the 1st defendant could not go out immediately after
the death of her husband, the money was sent through the 2 nd plaintiff in
order to pay in the Bank; the 2nd plaintiff denied the above claim that the
jewels were belonged to her mother Jamunabai; after producing the legal
heirship certificate of Mahendran and the legal opinion to the Bank, the
1st defendant got back the jewels from the Bank; in respect of the Van, the
plaintiffs did not give any financial assistance to the late Mahendran;
Mahendran died in the road accident on 18.12.2008; it is false to state that
he has sold the Van in the morning of the said date; by making use of the
sudden death of Mahendran, the plaintiffs concocted some documents and
claimed right over the suit properties and filed the suit; hence, the suit
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A.S. (MD) No. 75 of 2016
should be dismissed; there is another suit in O.S. No. 43 of 2010 filed by
one Jeyanthi against the 1st defendant namely, Uma Maheshwari for the
recovery of money; both the suits were tried together and evidence was let
in O.S. No. 65 of 2010.
4. On the basis of the above pleadings, the learned trial Judge framed the
following issues:
(i) jhth *V* ,yf;f brhj;Jf;fspy;
thjpfSf;F 2-3 ghfj;Jf;F ghfg;gphptpid gyd;
fpilf;ff;Toajh>
(ii) jhth *gp* gl;oay; brhj;Jf;fspy;
thjpfSf;F 2-3 ghf ghj;jpak; cs;sjh>
(iii) 2Mk; thjp eif fld; jPh;f;f
bjhif brYj;jpa[s;shuh> mjpy; 1-3 g';F
bjhif 1Mk; gpujpthjp 2Mk; thjpf;F
bfhLf;f flikg;gl;ltuh>
(iv) jhth *rp* gl;oay; brhj;Jf;fs;
(thfdk;) 2Mk; thjpf;F ghj;jpag;gl;ljh>
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A.S. (MD) No. 75 of 2016
(v) thjpfSf;F mth;fs; nfhUk;
ghfg;gphptpidfs;. bjhif kw;Wk; braYWj;Jf;
fl;lisfs; fpilf;ff;Toajh>
(vi) vj;jF epthuzk; thjp
milaj;jf;fth;>
5. During the course of trial, on the side of the plaintiffs, four witnesses
were examined as PW1 to PW4 and Exs.A1 to A35 were marked. On the
side of the defendants, three witnesses were examined as DW1 to DW3 and
Exs.B1 to B17 were marked.
6. On conclusion of the trial, the learned Judge dismissed both the suits; the
plaintiff in O.S. No. 43 of 2010 did not prefer any appeal challenging the
said judgment. However, the plaintiffs in O.S. No. 65 of 2010 have
preferred this appeal.
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A.S. (MD) No. 75 of 2016
7. The learned counsel appearing for the appellants submitted that despite
the properties in 'A' Schedule was purchased in the name of the deceased
Mahendran, the funds for the purchase were settled by his parents, i.e.,
1st plaintiff and the deceased Jamunabai; and they had purchased the
properties before the marriage of Mahendran; hence, the wife of
Mahendran, i.e., 1st defendant is in no way connected to the suit properties;
the appellants / plaintiffs and the deceased Mahendran were living as a joint
family until his death along with the 1st defendant; the Maruthi Van was also
purchased by the plaintiffs and given to Mahendran; it is the 2nd plaintiff,
who had paid the advance amount for purchasing 'A' schedule properties.
The learned trial Judge has failed to consider the character of 'A' schedule
properties as joint family properties; the learned trial Judge has also failed
to consider the plaintiffs' possession and enjoyment of the suit properties;
Ex.A10 – jewel loan receipt and Ex.A11 – repayment of loan receipt
produced by the plaintiffs to show that the loan was repaid by them, was
also not considered. The suit properties stood in the name of Mahendran and
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they were the joint family properties, in which, the plaintiffs and the 1st
defendant have got equal share. The learned trial Judge ought to have
granted preliminary decree for partition in respect of 2/3 shares of the
plaintiffs and hence, the appeal should be allowed.
8. The learned counsel for the 1st respondent submitted that the sale deed in
respect of 'A' schedule properties stood in the name of Mahendran and they
were self-acquired properties. Mahendran had dealt with the above said
properties in his personal capacity and it is false to state that it is the joint
family properties. Mahendran was working in a Private Company and was
earning money and with his savings only, he has purchased the suit
properties in his name. Since Mahendran died in a road accident, his father
and sister have filed the suit on the pretext that the properties are joint
family properties. There is no evidence produced to show that the suit
schedule properties are joint family properties and the joint family income
was utilized to purchase the same. The learned trial Judge has rightly
appreciated the evidence on record and dismissed the suit.
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9. On the basis of the rival submissions, the following points for
consideration are found to be relevant for the purpose of this appeal:
(i) Whether the suit scheduled properties are the joint
family properties?
(ii) Whether the plaintiffs are entitled to get 2/3 share in
respect of the suit properties?
10. The fact that the relationship between the parties is not disputed. The 1st
defendant is the daughter-in-law of the 1st appellant. The son of the 1st
appellant, by name, Mahendran was wedded to the 1st defendant. Due to the
sudden road accident, the said Mahendran died. The wife of the 1st
appellant, namely, Jamunabai was also pre-deceased him. It is the
contention of the appellants / plaintiffs that the suit properties were
purchased with the income of the joint family, though it stood in the name of
the deceased Mahendran.
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11. It is not seen from the evidence available on record that the 1st plaintiff
had any joint family business or joint family properties in order to generate
joint family income to purchase the suit properties in the name of
Mahendran. Though it is claimed by the appellants / plaintiffs that the joint
family stock was utilized for purchasing 'A' schedule properties in the name
of Mahendran, the plaintiffs' witness - PW1 has stated in her evidence that
her husband alone had given money to purchase the properties in the name
of Mahendran. The 2nd plaintiff was examined as PW1. She is the daughter
of the 1st appellant and sister of the deceased Mahendran. Her above
evidence would show that there is no joint family income and for the
purpose of purchasing the properties in the name of the members of the joint
family.
12. Admittedly, the sale deed stood in the name of late Mahendran. In order
to show that the property stood in the name of Mahendran, the 1st
respondent / 1st defendant has produced Exs.B1 and B3. Ex.B3 is the house
site situated in one Gowriamman Nagar. The recital of Ex.B3 would show
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A.S. (MD) No. 75 of 2016
that the sale consideration for the above property was paid by Mahendran in
a savings scheme by contributing monthly instalments. Ex.B5 – salary
certificate is produced to show that Mahendran was working in a Private
Company and he was earning Rs.5,000/- (Rupees Five Thousand only) per
month. If the title deeds stand in the name of a person, it has to be
necessarily presumed that, the properties are owned by him. It is needless to
state that Exs.B1 and B3 were the registered sale deeds standing in the name
of late Mahendran. During the life time of Mahendran, the 1st item of the 'A'
schedule properties was mortgaged to the 4th defendant, i.e., Nichalson Co-
operative Town Bank Limited. Despite the signatories of the above said
mortgage deed, where the deceased Mahendran and his mother Jamunabai
and his father Swaminathan, i.e., 1st plaintiff, the recitals would read that the
properties were purchased by the 1st defendant on 26.02.2002 and they are
the self-acquired properties. The self-acquired nature of Item Nos. 1 and 2
in 'A' schedule properties has been proved by the 1st defendant by producing
title deeds and other registered documents through which Mahendran dealt
with those properties.
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13. Hence, it is right for the trial Judge to hold that the 'A' schedule
properties are the self-acquired properties of the late Mahendran. In respect
of 'B' schedule properties, which were jewels, the 2nd appellant / 2nd plaintiff
has claimed that those jewels were belonged to her mother Jamunabai. But,
the 1st respondent / 1st defendant has stated that the jewels were given by her
father during her marriage and it was pledged by the late Mahendran to meet
out some financial crisis. In the pre-suit notice issued by the plaintiffs, the
jewels were stated to be belonged to the 2nd plaintiff. So, the statement of
PW1 in her evidence and the contents of the legal notice of the appellants
would show that there are contradictory statements in respect of 'B' schedule
jewels. If the jewels belong to anyone else other than the 1st defendant, those
jewels need not be in the custody of the 1st defendant or her husband late
Mahendran. So far as the immovable properties are concerned, the person
who is in possession of the same is presumed to be its owner. Any other fact
contra to that should be proved by the person who claims otherwise. The
plaintiffs in the suit did not prove to the satisfaction before the trial Court
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A.S. (MD) No. 75 of 2016
that 'B' schedule jewels were belonged either to the mother of the 2nd
plaintiff or to the 2nd plaintiff herself. In the absence of such proof, it is right
for the trial Judge to hold that the jewels seen in the 'B' schedule properties
are the jewels belonged to the 1st defendant.
14. In respect of 'C' schedule properties which is a Mahendra Maxi Cab, it
is claimed by the appellants / plaintiffs that the money to purchase the said
Van was given from and out of the retirement benefits of the 1st plaintiff and
his wife. But no documentary proof is produced to show the same. No
doubt, the Registration Certificate of the Mahendra Van is seen to be
standing in the name of the deceased Mahendran only.
15. It is the claim of the 2nd appellant that the loan instalments for
purchasing of the Mahendra Van was paid by her through one Murali, who
was its driver. By producing Exs.A15, A18, A19 and A20, it is claimed by
the appellants that they had contributed money for the purchase of the 'C'
schedule vehicle. The 'C' schedule vehicle was a passenger vehicle which is
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A.S. (MD) No. 75 of 2016
used for commercial purposes. So it is inevitable to appoint a driver to
manage the Van. It is not denied by the 1 st respondent / 1st defendant that
Murali was appointed by her husband - late Mahendran as driver for
handling the Mahendra Van.
16. It is submitted by the 1st respondent / 1st defendant that the driver Murali
had colluded with the plaintiffs and helped them to raise false claims by
giving the installment receipts. Admittedly, there is no name transfer in
respect of the Van to anyone's name. On the other hand, Ex.A20 would
show that the permit in respect of the said Van was transferred from the
name of one Noor Mohamed to the name of Mahendran. The driving licence
of Mahendran is produced as Ex.A22. These documents would only show
that Mahendran was the owner of the said vehicle.
17. It is submitted by the 1st respondent / 1st defendant that since the driver
Murali was handling the Van, her husband late Mahendran would give the
monthly installments through him to be paid to the financiers. It is quite
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natural that the vehicle was maintained and the receipts for paying the
instalments were with the custody of the driver. The driver of the vehicle
has been examined as PW2 and he has stated in his evidence that the
deceased Mahendran had purchased the 'C' schedule vehicle by utilising a
sum of Rs.3,10,000/- (Rupees Three Lakhs and Ten Thousand only) given
by his mother and raised further loan of Rs.1,50,000/- (Rupees One Lakh
and Fifty Thousand only) from the 2nd defendant Finance Company. But the
cross-examination would show that the vehicle was purchased for a sum of
Rs.3,10,000/- (Rupees Three Lakhs and Ten Thousand only). If the whole of
the said amount was settled by the mother of the deceased Mahendran, there
is no necessity for him to raise any further loan. The evidence of PW2 in
this regard is self-contradictory with reference to the repayment of loan. He
has stated in his cross-examination that he did not know anything. Though
PW2 has stated the details about the raising of money for the purchase of
Van, he did not know that the 1st defendant is the person who had stood as
the co-obligant for the loan availed by late.Mahendran from the 2nd
defendant.
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A.S. (MD) No. 75 of 2016
18. So, this would show that PW2 was only working as a driver and he
deposed the evidence in support of the plaintiffs due to some reason. When
the Registration Certificate stands in the name of Mahendran, no other
person could claim that the vehicle belonged to any other person other than
Mahendran. The learned trial Judge has rightly appreciated the evidence
available on record and arrived at a conclusion that the suit properties
belonged to the deceased Mahendran as self-acquired properties. After his
death, his one and only legal heir (his wife), i.e., 1st defendant is entitled to
inherit the same. Under such circumstances, the appellants / plaintiffs who
are the father and sister of the late Mahendran cannot claim any right in the
properties belonged to Mahendran. The learned trial Judge has rightly
denied the shares claimed by the appellants / plaintiffs by holding that they
are not entitled to any share in the suit properties. In my considered opinion,
there is no reason for interference. Thus the points are answered against
the appellants.
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A.S. (MD) No. 75 of 2016
19. In the result, this Appeal Suit is dismissed and the judgment and decree
in O.S.No. 65 of 2010 on the file of the II Additional District and Sessions
Court, Thanjavur, dated 22.09.2015, is hereby confirmed. However, there
shall be no order as to costs.
31.03.2022
Index : Yes / No
Speaking Order : Yes / No
vji
To
1. The II Additional District and Sessions Court,
Thanjavur,
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No. 75 of 2016
R.N.MANJULA, J.
vji
A.S. (MD) No. 75 of 2016
31.03.2022
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