Madras High Court
N.Sundera Rajan @ K.N.Durai vs N.Thangaraj on 31 October, 2022
A.S.No.8 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N. MALA
A.S.No.8 of 2013
and
M.P.No.1 of 2013 & C.M.P.No.1763 of 2019
N.Sundera Rajan @ K.N.Durai ... Appellant
Vs.
1.N.Thangaraj
2.N.Natarajan
3.Madurai's
4.N.Velmani
5.Saraswathi
6.J.Gangadharan
7.J.Loganathan
8.N.Subbalakshmi
9.N.Ruckmani
10.N.Kannammal
11.Smt.Mani
12.Arunbabu
13.Roobini
14.Vijaya
15.Harish Babu
16.Amrish Babu ... Respondents
Page 1 of 10
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A.S.No.8 of 2013
Prayer : Appeal Suit filed under Section 96 of Code of Civil Procedure
against the judgment and decree dated 17.08.2012 in O.S.No.20 of 2009 on
the file of the District Court, Nilgiris at Udhagamandalam.
For Appellant : M/s.R.Meenal
For R1 to R7 : Mr.A.R.Suresh
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
The 1st defendant in the suit in O.S.No.20 of 2009 on the file of the
District Court, Nilgiris at Udhagamandalam, is the appellant in the above
appeal.
2.Notice sent to the 8th respondent has returned with an endorsement
“not found”. Notice sent to the 9th respondent has returned with an
endorsement “no such person”. Notice sent to the 10 th respondent has
returned with an endorsement “vacated”. Notices sent to the respondents 11
to 13 have returned with an endorsement “left”. Notices sent to the
respondents 14 to 16 have returned with an endorsement “unclaimed”.
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A.S.No.8 of 2013
3.The contesting respondents 1 to 7 herein, as plaintiffs, have filed the
suit in O.S.No.20 of 2009 for partition of the suit properties and allotment of
5/9 shares and 5/11 shares out of 1/9 share of their father K.Nanja Gowder
by metes and bounds by appointing an Commissioner and for other
consequential reliefs.
4.The case of the plaintiffs is that the suit property belonged to
Sri.K.Nanjan, who is the father of plaintiffs 1 to 4, father-in-law of the 5th
plaintiff and grandfather of plaintiffs 6 and 7. The said K.Nanjan died
leaving behind plaintiffs 1 to 4, husband of 5th plaintiff, namely N.Joghee
(deceased), defendants 1 to 5, and husband of 6th defendant, namely
Krishnamurthy (deceased). It is the case of the plaintiffs that they are
entitled to their respective shares in the suit properties which belonged to the
said K.Nanjan.
5.The suit was contested by the 1st defendant/appellant only on the
ground that the plaintiffs and defendants are liable to pay him a sum of
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A.S.No.8 of 2013
Rs.4,80,000/- being the total debt payable by the joint family as per the
terms of the Family Panchayat held on 23.05.1999. It was stated by the 1st
defendant/appellant that the plaintiffs and defendants had agreed to settle
the said amount by selling any of the suit properties or by arranging their
own funds. The 1st defendant/appellant, in the written statement, has made a
statement in unequivocal terms that the 1st defendant/appellant has no
objection in allotting the plaintiffs with their respective shares in the suit
properties, if the plaintiffs and other defendants arrange for the funds to
which the 1st defendant/appellant is entitled to. The appellant relied upon
the Family Panchayat, dated 23.05.1999, in which a sum of Rs.4,80,000/- is
admitted by the signatories and not as a sum incurred by the 1st
defendant/appellant towards family necessities or settled by appellant.
6.The trial Court, after framing issues, examined the evidence of
plaintiffs and the defendants and also considered the defence in the light of
the pleadings and evidence. The trial Court observed that the 1st defendant
did not produce any evidence to prove that the 1 st defendant had discharged
the family debt of Rs.4,80,000/- and accordingly, partly decreed the suit,
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A.S.No.8 of 2013
aggrieved by which, the 1st defendant is before this Court.
7.Heard the learned counsel on either side and perused the entire
materials available on record.
8.The burden of proof lies on the 1st defendant/appellant regarding the
amount spent by him towards the education of the 4 th plaintiff, as stated by
him in the written statement. The written statement of appellant is contrary
to the recitals about the existence of family debt in Ex.B1. The appellant,
having admitted that he has incurred the family debt of Rs.4,80,000/-, has
not produced any account to show the expenditure towards the family debt
of Rs.4,80,000/-. It is stated by the appellant/1st defendant during cross-
examination that the said amount was spent towards the education of the 4 th
plaintiff, who is the 4th respondent before this Court. Similarly, it was
contended that the appellant had spent further amount towards medical
expenses of another brother by name N.Krishnamurthy. Though the
document Ex.B1, Family Panchayat or the family arrangement according to
the plaintiffs was produced, it is admitted that the 4th plaintiff and another
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A.S.No.8 of 2013
brother, by name Krishnamurthy, have not signed the document Ex.B1,
acknowledging the debt of Rs.4,80,000/-. The 4th plaintiff as well the said
Krishnamurthy are not signatories to the document Ex.B1. It is only on the
basis of the recital in the document Ex.B1 to the effect that the members of
the family have jointly incurred a debt of Rs.4,80,000/-, the appellant has
taken a defence for getting contribution from the other sharers. Nowhere in
the document Ex.B1, the details of persons to whom the amount is payable
is given. Ex.B1 does not indicate a complete partition of all properties. The
present suit is filed 10 years later and hence, there should be independent
evidence.
9.The trial Court specifically rendered a finding that the document
Ex.B1 was never acted upon and it is not binding on all the legal heirs,
particularly the 4th plaintiff and the said Krishnamurthy. When the debt is
stated to be not incurred for the joint family but for the education of one of
the co-owners, the appellant cannot claim the amount to be disbursed to him
out of the family property. In the present case, the document Ex.B1 is not
signed by the two brothers. When there is no independent evidence to prove
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A.S.No.8 of 2013
existence of family debt as on the date of suit, the findings of trial Court
cannot be interfered with.
10.It is true that the law settled by this Court and the Hon'ble Supreme
Court gives protection to one of the members of the family to get
contribution from other sharers if he had paid on behalf of all other members
towards discharge of family debt or had incurred family expenses. It is to be
noted that, to get reimbursement of the money which a member of the family
had discharged, the person has to prove that he had not paid such amount
gratuitously; secondly, the debt which was stated to be discharged by him is
acknowledged by other persons as one incurred for family necessities and
thirdly, the other members have enjoyed the benefit. The pleadings and
evidence do not indicate the existence of debt at the time of filing suit.
Without these ingredients, it may not be possible for a person to prevent
partition of family property. No charge is created in respect of the properties
if money is paid by one of the co-owners without the consent of other co-
owners to treat the same as family debt.
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A.S.No.8 of 2013
11.In the present case, above all, the appellant/1st defendant himself
has admitted in the course of evidence that the educational expenses of the
4th plaintiff were incurred by his father during his lifetime. Merely because
some of the plaintiffs and others, who are co-owners, are parties to the
document Ex.B1, the recitals of the document cannot be put against the
other members of the family who are either plaintiffs or defendants in the
suit for partition. As pointed out by the trial Court, except the recital in the
document Ex.B1, no independent evidence is let in to prove such discharge
of debt by the appellant, so as to get contribution from other members of the
family.
12.In view of the position that the 1st defendant/appellant has not
proved his case regarding the expenses he had incurred for any family
necessity, this Court is unable to sustain any of the grounds raised by the 1 st
defendant/appellant before this Court.
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A.S.No.8 of 2013
13.The appeal is therefore, dismissed, confirming the judgment and
decree of the trial Court. No costs. Consequently, connected miscellaneous
petitions are closed.
(S.S.S.R., J.) (N.M., J.)
31.10.2022
mkn
Internet : Yes
Index : Yes / No
To
The District Judge,
Nilgiris at Udhagamandalam.
https://www.mhc.tn.gov.in/judis
A.S.No.8 of 2013
S.S. SUNDAR, J.
and
N. MALA, J.
mkn
A.S.No.8 of 2013
31.10.2022
https://www.mhc.tn.gov.in/judis
