Madras High Court
Mahendran vs M.Sivakumar on 2 November, 2022
1 A.S.No.235 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:02.11.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
A.S.No.235 of 2019
1.Mahendran
2.M.Murthy
...Appellants/defendants 1 and 3
Versus
1.M.Sivakumar
2.Maheswari
3.Chinnaponnu (died)
...Respondents/plaintiffs
Prayer: First Appeal filed under Section 96 of Civil Procedure Code, r/w
Order XLI Rule 1 of CPC 1908, praying to set aside the judgment and decree
dated 31.01.2019 made in O.S.No.10 of 2011, on the file of District Judge,
District Court – II, Kanchipuram.
For Appellant : Mr.T.Karunakaran
For Respondent : Mr.M.A.Sivakumaran
for M/s.G.Gnanasundaram for R1
R2-not residing at present
R3-died
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2 A.S.No.235 of 2019
JUDGMENT
The defendants 1 and 3 are the appellants. The first respondent
herein filed a suit for partition claiming 5/20th share in the suit schedule
properties. The suit was decreed in part by granting 1/5th share in the first
item of the suit property and 1/4th share in the second item of suit property.
The suit was dismissed, in respect of the 3rd item and other reliefs. Aggrieved
by the same, the defendants 1 and 3 have come up by way of this appeal.
2. The learned counsel for the appellants even at the beginning
of the arguments submitted that he has no objection for the decree, in respect
of item 2 of suit property and he confines his arguments with respect to first
item of the suit property.
3. The first item of the suit property consists of 750 sq.ft land
together with superstructure thereon bearing new Door No.1/5 and old Door
No.1/19. The appellants and the first respondent are the sons of late
Murugesan. The second respondent is the daughter of said Murugesan. The
deceased 3rd respondent is the wife of said Murugesan. All legal
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representatives of deceased 3rd respondent are already on record as appellants
and respondents 1 and 2.
4. Plaint Averments:
According to the first respondent, deceased Murugesan was the
Kartha of Hindu Joint Family of which the appellants and respondents were
members. It was specifically alleged by him that all the parties lived together
as Coparceners of the joint family. It was alleged that the said
Murugesan/father of the parties during his lifetime had started an Aluminum
Polishing Industry at Kundrathur Main Road and all of his sons including
first respondent and appellants had worked there right from their childhood.
It was alleged that as a Kartha of the family, out of the profits of the said
business, he purchased the suit properties. The first respondent also alleged
that Murugesan died on 17.11.2009 intestate and thereafter, the appellants
were not ready for amicable partition. Consequently, the first respondent was
constrained to issue a legal notice to appellants claiming their share in the suit
property. The appellants and deceased 3rd respondent issued a reply denying
the share of the first respondent and hence he was constrained to file a suit for
partition.
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5. The appellants and deceased 3rd respondent filed a written
statement, wherein, generally denied the averments contained in the
paragraph 3 to 7 of plaint. It was averred in the written statement of the
appellants that item one of the suit property was purchased by Murugesan,
through a registered sale deed dated 15.04.1985 and subsequently,
Murugesan had executed a Will in respect of said property, in favour of the
appellants and 3rd respondent. Therefore, it was contended that the first
respondent had no right over the first item of the suit property. As far as
second item of suit property is concerned, the appellants had not questioned
the correctness of decree. As far as, item three is concerned, the suit was
dismissed and the respondents have not preferred any appeal challenging the
said findings. Therefore, we are concerned with first item only in this suit.
6. On these pleadings, the parties went to the trial, the first
respondent/plaintiff was examined as PW.1 and five documents were marked
on his side as Exs.A1 to A5. On behalf of appellants, the first appellant/D1
was examined as DW.1 and the attestor to the Will relied on by the appellants
namely Thirunavukkarasu was examined as DW.2. The four documents were
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marked on behalf of the appellants as Exs.B1 to B4.
7. On consideration of oral and documentary evidence, the trial
Court held that the first item of suit property was joint family property and
the property was purchased out of income from joint family business and
consequently the Will executed by deceased Murugesan, in favour of
appellants was valid only to the extent of his 1/5th share. Therefore, the trial
Court held that the first respondent is entitled to 1/5th share in the first item of
the suit property. The trial Court, further held that the first respondent is
entitled to 1/4th share in the second item of the suit property. As far as the
third item of suit property is concerned, the suit was dismissed.
8. Aggrieved by the said judgment, the first and 3rd defendants
have come up by way of this appeal. As I stated earlier, the learned counsel
for the appellants confined his arguments, with regard to the first item of the
suit property.
9. The learned counsel for the appellants/D1 and D3 submitted
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that the contention of the first respondent/plaintiff that he also contributed to
the suit item one by participating in the joint family business cannot be
accepted in view of the fact that the first item was purchased by father
Murugesan under Ex.B2, dated 15.04.1985.
10. The learned counsel for the appellants contended that on the
date of purchase of item one, the age of first respondent/plaintiff was only 17
years, therefore his contention that he contributed to the joint family business
along with his father and contributed to the purchase of said property at the
age of 17 years cannot be accepted. The learned counsel further submitted
that a person, who alleges the existence of joint family shall prove the same
and he relied on judgments reported in 2018 (1) LW 221 in M.Subramaniam
Vs. S.Ravichandran and others.
11. Per contra, the learned counsel for the first
respondent/plaintiff had taken this Court to the admissions made by first
appellant as DW.1 and submitted that in view of the admissions made by first
appellant, the participation of the first respondent in the joint family business
stood proved and therefore, the first item of the suit property should be
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treated as a one purchased out of joint family business income.
12. On the basis of the pleadings of the parties, the evidence
available on record and also contentions of the learned counsel, the following
points arise for consideration:
(a) Whether the first item of the suit property is the self
acquired property of deceased Murugesan or the property purchased out of
income from joint family business?;
(b) Whether the judgment and decree passed by the Court
below, requires any interference by this Court?.
13. Point Nos.1 and 2:
The first respondent in his pleadings specifically averred that
there was a joint family consisting of the deceased father Murugesan, the
appellants and respondents. It was specifically averred that the parties were
living together as coparceners in the joint family and deceased Murugesan
during his lifetime had started an Aluminum Polishing Industry, Kundrathur
Main Road and all of his sons including the appellants and first respondent
had worked there right from the childhood. It was also further averred that
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they had also played a part in uplifting industry by working in the industry
and said Murugesan, as the Kartha of the family, out of the profits of the
business purchased the suit properties. The said specific averments of the
first respondent in the plaint were not controverted specifically by the
appellants in the written statement. The close scrutiny of the written
statement would suggest in paragraph 4 of the written statement, they
generally denied the averments made in the plaint. The extract of the relevant
averment found in the plaint as follows:
4. The plaintiff further submits that late M.Murugesan
started industry and latter on expanded the industry and named it as
Murugesan Steel Grinding and Polishing Industry with the help of the
plaintiff. Though the industry was started only as a polishing aluminum
vessels, but later on it was developed into steel drilling and polishing
stainless steel and aluminum vessels. Since all the people have worked
in the factory, the factory was developed into a standard industry. Now
the industry is having its own goodwill. The plaintiff after attending the
school, used to work as a worker and became a full time worker and
spent most of his time to develop the industry and assisting his father
late M.Murugesan as the eldest son of the family. Out of the profits
earned through the industry the other properties were purchased in his
name as well as on others name. The following area the assets held at
the lifetime of late M.Murugesan.
Therefore, the specific averment of the first respondent that he
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participated in the joint family business from the childhood and out of the
income from joint family business, Murugesan purchased the suit property
was not at all denied. However, the appellants denied the right of the first
respondent to claim partition by relying on the Will allegedly executed by
said Murugesan. The Trial Court based on the evidence of attestor to the
Will held that the Will was proved and based on the said findings, the Trial
Court held that the Will is valid only to the extent of 1/5th share of the said
Murugesan. The first respondent has not filed any appeal, challenging the
decree granting 1/5th share in the first item of the suit property. It is settled
law, a successful party in a suit can very well assail the adverse finding
against him in an appeal filed by the opposite party, even without filing any
independent appeal or cross appeal.
14. In this case, though the first respondent prayed for 5/20h
share in the suit property, the trial Court granted a lesser share by passing a
decree for 1/5th share in the first item of the suit property. The said decree
passed by the trial Court, in respect of first item of the suit property is based
on the findings that Will was true and valid to the extent of 1/5th share of
deceased Murugesan. In view of the fact that the first respondent has not
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questioned the decree passed by the trial Court granting a lesser share, I am
of the view, it is not open to him to assail the findings of the trial Court
upholding the Will. If he is allowed to assail the said finding then it would
amount to assailing the decree granting lesser share even without filing
appeal. Therefore, the findings as to Will has become final and the only
question which remains to be answered is, whether the finding of the trial
Court that the suit item one was purchased out of income from joint family
business is correct.
15. As I mentioned earlier, the specific averments of the first
respondent in his plaint that the suit property was purchased out of income
from joint family business was not at all controverted in the pleadings of the
appellants. In this regard, it would be appropriate to refer to Order VIII Rule
3 to 5 of CPC, which reads as follows:
3. Denial to be specific
It shall not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the
truth, except damages.
4. Evasive denial
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Where a defendant denies an allegation of fact in the plaint, he must not
do so evasively, but answer the point of substance. Thus, if it is alleged
that he received a certain sum of money, it shall not be sufficient to deny
that he received that particular amount, but he must deny that he received
that sum or any part thereof, or else set out how much he received. And if
an allegation is made with diverse circumstances, it shall not be sufficient
to deny it along with those circumstances.
5. Specific denial
[(1)] Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not admitted in
the pleading of the defendant, shall be taken to be admitted except as
against a person under disability :
Provided that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission.
16. The harmonious reading of above provisions would suggest
that the pleading in the plaint should be specifically denied in the written
statement. In the case on hand, the specific plea of the first respondent that
the suit property was purchased out of income from joint family business was
not at all denied. Therefore, the Court can even take the same as admission
on the part of the appellants. Even in cases as per proviso to Rule 5(i) of
Order VIII CPC, where, the Court required the plaintiff to prove his
averments the burden on the plaintiff is very very light in view of the absence
of specific denial of the defendant.
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17. In the light of the above legal position, I would like to
scrutinize oral evidence available on record. The first respondent entered the
box as PW.1 and he deposed that he has been associated with the Aluminium
business with his father from his childhood. He also averred that the suit
properties were purchased out of income from the joint family business and
from the date of purchase, they have been enjoying the same jointly.
18. In the cross examination, he deposed that he had been
associated with his father in the joint family business from 1980, he withstood
the cross examination and his evidence was in tune with his pleadings. The
first appellant was examined as DW.1 and he made fatal admission in his
cross examination as follows:
(1) vd; FLk;g bjhHpy; mYkpdpa ghj;jpuk; jahh;
bra;tjhFk;/ 10 mo. 15 mo cs;s ,lj;jpy; jfL th';fp
te;J jahh; bra;J bfhLj;njhk;/ ,Jjhd; v';fs; FLk;g
bjhHpyhFk;/ thjpa[k; 10k; tFg;g[ tiuapy; epd;W tpl;lhh;/
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(2) KUnfrd; mYkpdpa gl;liu vd;w bgahpy; elj;jp
te;njhk;/ ntW bgah; khw;wtpy;iy/ eh';fs; gs;spf;F
brd;Wbfhz;oUe;jnghnj fhiy. khiyapy; vd; mg;ght[ld;
ntiy bra;J te;njhk;/ nkw;go gl;liuapy; fpiuz;o';
kpc&d;. ghypc;& kpc&d;. gpu!; kpc&d; ,Ue;jJ/ kpd;,izg;g[
KUnfrd; gl;liu bgahpy; ,Ue;jJ/
(3) ehd; ,d;Wtiu Tl;L Flk;gj;jpy;jhd;
,Uf;fpnwd;/ vd; mg;gh bjhHpy; bra;a[k; tiu eh';fs;
xd;whf ,Ue;njhk;/ vd; mz;zd; jpUkzk; MdgpwF
mth;jdpahf brd;Wtpl;lhh;/
(4) vd; mg;gh g[{h;tPfkhf brhj;J ,y;iy/
tUkhdk; ,y;iy/ ,e;j bjhHpy;jhd; tUkhdk;/ ,e;j
bjhHpypy; ,Ue;J te;j tUkhdj;ij bfhz;Ljhd; Kjy;
mapl;l brhj;ij th';fpdhh;/
Therefore, DW.1 in his cross examination clearly admitted that
there was a family business. He specifically admitted that it was family
business. He also admitted that the first respondent stopped his studies in 10th
standard. He specifically admitted that all of them used to do work in the
Aluminium business during morning and evening times, while they were
studying in school. Till father was engaged in Aluminium Business all of
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them lived as joint family. The first item of the suit property was purchased
from the income of the joint family business. The admission made by the first
appellant as DW.1 is well pronounced that there was a joint family business
and first item of suit property was purchased from the income of joint family
business. Therefore, there is every probability, when first item of suit
property purchased under Ex.B2 on 15.04.1985, the first respondent would
have contributed his efforts in the joint family business even though, he was
only 17 years old on that day, in view of the specific admission by the first
respondent as DW.1 that the first respondent stopped his study when he was
in 10th standard.
19. I have no hesitation in holding that the first respondent by
his own evidence and through admissions of DW.1 proved that he
participated in the joint family business and contributed to the purchase of
first item of suit property.
20. In view of the above discussion, the finding of the trial
Court that the suit item one was a joint family property and consequently the
Will executed by deceased Murugesan was valid only to the extent of his 1/5th
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share is correct and it requires no interference by this Court.
21. Therefore, the first appeal is dismissed. In the facts and
circumstances of the case, there is no order as to costs. Consequently,
connected miscellaneous petition is closed.
02.11.2022
Index: Yes/ No
Speaking Order / Non-Speaking Order
ub
To
The District Judge, District Court – II,
Kanchipuram.
S.SOUNTHAR, J.
ub
https://www.mhc.tn.gov.in/judis
A.S.No.235 of 2019
02.11.2022
https://www.mhc.tn.gov.in/judis
