Madras High Court
Arjun Gounder vs Swaminathan on 31 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.472 of 2015
and
MP No.1 of 2015
1. Arjun Gounder
2. Paranthaman
3. Ramu
4. K.Govindan ... Appellants
Vs.
Swaminathan ... Respondent
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the Judgement and decree dated
12.09.2014 made in A.S.No.79 of 2011 on the file of Sub Court,
Gudiyattam, the judgement and decree dated 26.09.2011 made in
O.S.No.161 of 2008 on the file of the District Munsif Court,
Gudiyattam,Vellore District.
For Appellants : Mr.T.Dhanyakumar
For Respondent : Mr.K.Govi Ganesan
for Mr.C.Vinoth Kumar
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2
JUDGMENT
The defendants are the appellants in this second
appeal.
2. The respondent / plaintiff filed a suit seeking
for the relief of declaration of title with respect to Item Nos.2
and 3 of the suit properties or in the alternative for the relief of
partition and for allotment of ¼ share in Item Nos.2 and 3 of the
suit properties.
3. The case of the plaintiff is that the 1st
defendant is his father and the 2nd and 3rd defendant are his
brother and sister and the 4th defendant is his brother-in-law.
According to the plaintiff, item No.1 of the suit property
belonged to his grand father and this property was bequeathed in
favour of the plaintiff and the 2nd defendant. On the demise of
the grand father, the Will came into force and therefore, the
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plaintiff is claiming for ½ share in Item No.1 of the suit property.
4. The further case of the plaintiff is that he was
working in CISF and he retired from service in the year 2003.
According to him, he was sending money to the 1st defendant
regularly and the 1st defendant had purchased item 2 of the suit
property in his name through six sale deeds. Similarly, the money
sent by the plaintiff was also utilized by the 2nd defendant and he
had purchased the property mentioned in Item 3 of the suit
property in his name. The plaintiff took a stand that the earnings
from the 1st item of the suit property was also utilized while
purchasing the properties mentioned in Item 2 and 3 of the suit
properties.
5. The grievance of the plaintiff is that defendants
1 to 3 were acting against the interest of the plaintiff and were
not inclined to divide the properties. Left with no other
alternative, the suit was filed seeking for the reliefs mentioned
supra.
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6. The 1st defendant filed a written statement and
took a stand that item 2 and 3 of the suit properties was not
purchased from the earnings of the plaintiff. He took a stand that
the 2nd item of the suit property was purchased from his own
earnings and it is the exclusive property of the 1st defendant.
Similarly, item 3 of the suit property was purchased exclusively
out of the earnings of the 2nd defendant. Therefore, the 1st
defendant completely denied the right of the plaintiff in item 2
and 3 of the suit properties and took a stand that the plaintiff is
not entitled for any share in the suit property. Accordingly, the 1st
defendant sought for the dismissal of the suit.
7. The Trial Court on considering the facts and
circumstances of the case and after analyzing the oral and
documentary evidence decreed the suit through judgment and
decree dated 26.09.2011 and granted the relief of partition and
allotment of ¼ share with respect to all the properties in Item 2
except Serial Nos.1, 3 and 4 and similar relief was granted for
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item 3 of the suit property also. The Trial Court also granted the
consequential relief of permanent injunction restraining the 1st
defendant from dealing with the properties for which the relief
of partition was granted. The suit was dismissed with respect to
the relief of declaration of title.
8. Aggrieved by the judgement of the Trial Court,
the defendants filed an appeal before the Sub Court, Vellore in
A.S.No.79 of 2011. The Lower Appellate Court through judgment
and decree dated 12.09.2014 modified the decree passed by the
Trial Court and granted the relief of partition and allotment of ¼
share for all the properties in item 2 and item 3 of the suit
properties. Aggrieved by the same, the defendants have filed
this second appeal.
9. When the second appeal was admitted, the following
substantial questions of law were framed by this Court :-
a) Whether both the Courts below erred in finding that
the 'B' and 'C' schedule properties which stood in the
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names of the 1st and 2nd defendants was acquired
through the income earned from the 'A' schedule
property, without there being any evidence to
substantiate this stand taken by the plaintiffs?
b) Whether the lower appellate Court had assigned
cogent reasons for modifying the findings of the trial
Court and re-assigning the shares in favour of the
parties, as mandated under Order 41 Rule 31(c) of the
Code of Civil Procedure?
c) Whether the finding of both the Courts below can be
termed as perverse due to improper appreciation of the
evidence available on record and for shifting the
burden of proof on the defendant without the plaintiffs
being able to discharge their burden?
9. Heard the learned counsel for the Appellants
and the learned counsel for the respondent and this Court has
also carefully perused the materials available on record and the
findings rendered by both the Courts below.
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10. It is an admitted case that item 2 of the suit
property stood in the name of the 1st defendant and item 3 of the
suit property stood in the name of the 2nd defendant. The
specific case of the plaintiff is that item 2 and 3 of the suit
properties were purchased out of the money sent by him and
from the revenue yielded by first item of the suit property.
11. Both the Courts categorically held that the
plaintiff has not proved the fact that item 2 and 3 of the suit
properties were purchased out of the money sent by the
plaintiff. There is also no proof that item 2 and 3 of the suit
properties was purchased from the excess revenue available from
the first item of the suit property. The plaintiff did not discharge
his burden and hence, item 2 and 3 of the suit properties can
only be held to be the exclusive properties of defendants 1 and
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12. Very curiously, the Courts below went on a
tangent and shifted the burden on the side of the defendants and
expected the defendants to prove that item 2 and 3 of the suit
properties were purchased from their income. This procedure
adopted by both the Courts below is against the principles of law.
That apart, the lower appellate Court went into irrelevant facts
and rendered a finding as if items 2 and 3 of the property were
purchased from the income derived from the 1st item of the suit
property and this finding is not based on any evidence and it is
based on surmises.
13. Both the Courts below erred in finding that item
2 and 3 of the suit properties were purchased from the income
derived from the 1st item of the suit property. The 1st substantial
question of law is answered accordingly in favour of the
appellants.
14. The relief that was granted by both the Courts
below in favour of the plaintiff based on surmises and improper
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appreciation of evidence and hence, those findings must be held
to be perverse. The 2nd and 3rd substantial questions of law are
accordingly answered in favour of the appellants.
15. In view of the above discussion, this Court has
no hesitation to interfere with the judgment and decree passed
by both the Courts below and the same is hereby set-aside.
Consequently, the suit filed by the respondent is dismissed.
16. In the result, this second appeal is allowed.
Considering the facts and circumstances of the case, there shall
be no order as to costs.
31.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH.,J
rka
To
1. The Sub Court, Gudiyattam
2. The District Munsif Court, Gudiyattam, Vellore District
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.472 of 2015
31.03.2022
https://www.mhc.tn.gov.in/judis
