Madras High Court
Amirtham vs Muthusamy on 13 September, 2022
A.S.No.508 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.508 of 2015
Amirtham ... Appellant
Versus
1. Muthusamy
2. Major Jeeva
*Respondent No.2 declared as Major and his
guardianship discharged viz (Vijayalakshmi)
as per memo, dated 15.02.2022 in S.R.No.5138
vide Court order, dated 07.03.2022 made in
A.S.No.508 of 2015 ... Respondents
Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure to
set aside the judgment and decree, dated 01.09.2014 passed in O.S.No.231 of
2022 on the file of the learned III Additional District Judge, Salem.
For Appellant : M/s.J.Prithvi
for Mr.A.K.Kumaraswamy
For R1 : Exparte
For R2 : Notice refused
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A.S.No.508 of 2015
JUDGMENT
This Appeal Suit arises out of the judgment of the learned III Additional
District and Sessions Judge, Salem, dated 01.09.2014 in O.S.No.231 of 2012,
in and by which, the suit filed by the appellant herein for partition of the two
items of the suit property and to declare that the settlement deed, executed by
the first defendant in favour of the second defendant in respect of the part of
the first item of the suit property, as null and void, was dismissed by the Trial
Court.
2. The case of the appellant is that she is the daughter of one Chinna
Gounder. The said Chinna Gounder and the first defendant Muthusamy are
both sons of one Chinna Tambi Gounder. All the three of them formed the
Hindu undivided joint family. While so, thirty years ago, the appellant's father
went missing and his whereabouts are not known continuously from then on.
The appellant's mother also died long back. While so, the appellant's grand-
father, the first defendant and the appellant jointly sold their ancestral property
at Thukkiyampalayam on 27.04.1981 vide Ex.A-5, sale deed and out of the sale
proceeds, the A-schedule property in the suit was purchased on 14.05.1981,
however in the name of the first defendant. Even though the property was
purchased in the name of the first defendant, the property was under the joint
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A.S.No.508 of 2015
possession and cultivation of the joint family. Since the appellant was married
and living with her husband in or about the year 2012, she issued a legal notice,
dated 30.07.2012 as the first defendant was not forthcoming for partition of the
suit properties. Only during the first week of June, 2012, she came to know
that the first defendant also executed a deed of settlement, dated 02.12.2003 in
favour of the second defendant. The same is without any right by the first
defendant and therefore liable to be declared as null and void.
3. Similarly, it is the case of the appellant that the B-schedule property in
the suit is also assigned by the Government in the name of the first defendant
and at that time, even the grand-father was alive and the same was also only in
the cultivation and enjoyment of the joint family and therefore, both the
properties, being the joint family properties and since the appellant's grand-
father having died thirteen years ago, the appellant is entitled for the half share
belonging to her father, being the sole legal heir of the Chinna Gounder, whose
whereabouts are not known for the past thirty years ago.
4. The first defendant, Muthusamy, remained exparte and did not contest
the suit. The second defendant, namely Jeeva, who was minor during the
pendency of the suit and was represented by his mother, Vijayalakshmi, filed a
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A.S.No.508 of 2015
written statement. In the written statement, it is only pleaded that the property
was purchased by the first defendant. But, it is specifically pleaded that on
02.12.2003, to the knowledge of everybody, an extent of about one acre was
settled in the name of the second defendant and she was in cultivation of the
same. Therefore, he prayed for dismissal of the suit.
5. The Trial Court framed the following five issues:-
(i) Whether the plaintiff (appellant herein) is
entitled for a share in the suit properties?
(ii) Whether the settlement deed, dated
02.12.2003 is valid?
(iii) Whether the suit properties are the separate
properties of the first defendant?
(iv) Whether the plaintiff (appellant herein) is
entitled for preliminary decree as prayed for by the
plaintiff (appellant herein)?
(v) To what other reliefs, the plaintiff (appellant
herein) is entitled to?
6. On the said issues, the appellant examined herself as P.W.1. One of
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A.S.No.508 of 2015
the purchasers of the joint family properties, namely Kumaravel, who is aged
about 77 years, was examined as P.W.2. The seller of the A-schedule
mentioned property to the suit, namely Sivaprakasam, who is aged about 63
years, was examined as P.W.3. On behalf of the appellant, the sale deed, by
which, A-schedule property was purchased in the name of the first defendant,
dated 14.05.1981, as Ex.A-1. The settlement deed, executed by the first
defendant, in favour of the second defendant, dated 02.12.2003, was marked as
Ex.A-2. The legal notice, issued by the appellant, dated 30.07.2012, is marked
as Ex.A-3 and the acknowledgment card as Ex.A-4. The sale deed, in respect
of the sale of the joint family property, dated 27.04.1981, is marked as Ex.A-5.
On behalf of the second defendant, Vijayalakshmi, the mother of the second
defendant, was examined as D.W.1. Again, the same Ex.A-1 is marked as
Ex.B-1 and Ex.A-2 is marked as Ex.B-2 and the order for change of patta,
dated 28.10.2005 is marked as Ex.B-3 and the patta in the name of the second
defendant in respect of the extent of one acre settled on the second defendant is
marked as Ex.B-4.
7. Thereafter, the Trial Court proceeded to hear the learned Counsel on
either side and after appraisal of the evidence on record, by a judgment and
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decree, dated 01.09.2014, found that as regards the B-schedule property, since
the assignment of that land is done by the Government in favour of the first
defendant, the same cannot be held to be joint family property. As far as the A-
schedule property is concerned, the Trial Court found that since the appellant
got married and was living with her husband in a different village, it cannot be
said that she was in joint possession and considering the fact that the first
defendant has built house in the A-schedule property, it cannot be believed that
the property was a joint family property. Further, the Trial Court, considering
the contradiction in the evidence of the appellant and the contents of her legal
notice as to the date of knowledge of the settlement deed, coupled with the
evidence of D.W.1 that everybody knew about the settlement deed, held that
the appellant's version that she came to know only recently about the settlement
deed cannot be believed and therefore, in view of the settlement deed, being
dated 02.12.2003 and the suit being filed in the year 2012, held that the relief of
declaration of the settlement deed is barred by limitation and cannot be granted.
On the above findings, the entire suit is dismissed by the Trial Court.
Aggrieved by the same, the appellant is on appeal before this Court.
8. Heard Ms.J.Prithvi, learned Counsel appearing on behalf of the
appellant. Even though notices are served, there is no appearance on behalf of
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A.S.No.508 of 2015
the respondents.
9. The learned Counsel for the appellant, taking this Court through the
evidence on record, would submit that in this case, the case of the appellant is
that the schedule mentioned properties are joint family properties. The
competent person to deny the same is the first defendant. The first defendant
remained exparte. However, even though the appellant, by marking Ex.A-5,
the sale deed for sale of joint family properties, which is dated 27.04.1981 and
the immediate subsequent purchase of the A-schedule property on 14.05.1981,
had proved that even though the A-schedule property was purchased in the
name of the first defendant, it was purchased out of the joint family nucleus.
This apart, the first defendant did not file any written statement claiming any
independent income. Even D.W.1, the mother of the second defendant, who
was only the daughter-in-law, who came into the family subsequently, had
denied any knowledge about the affairs of the family and she has also not
deposed about any independent income of the first defendant. Even in the
written statement, except for the bare denial, there is no specific averment as to
the source of income or the independent purchase by the first defendant. Over
and above this documentary evidence and circumstances on record, the
appellant also examined P.W.2, one of the purchasers of the joint family
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A.S.No.508 of 2015
property, who had clearly and categorically deposed that the sale consideration
was passed on and out of the sale consideration, the A-schedule property was
purchased and the appellant's grand-father, the first defendant and the appellant
were in joint possession and cultivation of the same. Similarly, the person, who
sold the A-schedule property to the first defendant was also examined as
P.W.3, who had also spoken to on the same lines that the purchase was made
on behalf of the joint family and that after the purchase, the joint family was in
joint possession and cultivation. Therefore, he would submit that this is a case,
in which, the appellant has proved that the suit schedule property is from the
joint family nucleus.
10. The learned Counsel also relied upon the judgment of this Court in
Malla Naicker @ Singar and Ors. Vs. Jeeva (minor) and Ors.1, more-fully
relying upon the paragraph Nos.17 and 18 and it is useful to extract the same
which reads as hereunder:-
" 17. Therefore, having regard to the presumption
as per the law laid down by the Hon'ble Supreme
Court as well as our High Court as referred to above,
and as stated in Mulla's Hindu Law that when a
Kartha claims certain properties as a separate
properties and the joint family admittedly possessed of
some nucleus, the burden is on the Kartha to prove
that the properties are his separate properties and not
1 2012 (1) CTC 128
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A.S.No.508 of 2015
purchased out of the joint family properties' income.
On the other hand, if the co-parcener claims certain
properties as his separate properties, then the burden
is cast on the other co-parcener, who claims that the
property is a joint family property to prove that
property purchased in the name of one of the co-
parceners was purchased out of the joint family
properties' income and it was not a separate property.
18. Therefore, the law recognizes two standards
of burden of proofs, one for the Kartha of the joint
family and another for a co-parcener, when they claim
that certain properties are their separate properties
and not joint family properties. Admittedly, the joint
family possessed of some nucleus, eventhough no
evidence was adduced by the respondents/plaintiffs
about the nature of income from that nucleus, in the
absence of any source of independent income by the
other co-parcener, in whose name, the property was
purchased, it can be presumed that the joint family
properties would have provided the consideration for
the purchase of the suit properties."
11. The learned Counsel would submit that the factum as to in whose
name the property stands is not conclusive and it is only the burden of proving
otherwise which is material. The appellant alleged that the property in the
name of the first defendant, being the coparcenary property, the appellant had
discharged her onus and burden of proof, especially when the first defendant
had not contested the suit and there is no other contra evidence on record.
12. I have considered the said submissions and perused the material
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records of this case. As far as the B-schedule property is concerned, except for
a settlement in the complaint, there is absolutely no other evidence to suggest
that B-schedule property was in joint possession or cultivation. Even as per the
case of the plaintiff, B-schedule property was granted in the name of the first
defendant by way of assignment patta. It cannot be contended that said
assignment/patta granted by the Government is on behalf of the undivided
family and therefore, the Trial Court has rightly dismissed the suit in respect of
the B-schedule property.
13. As far as the A-schedule property is concerned, there are two prayers.
Firstly, the plaintiff prays that the settlement deed in respect of the second
defendant be set aside and it is prayed that the entire property be partitioned.
As far as the settlement deed is concerned, admittedly, the deed of settlement is
dated 02.12.2003. In this regard, as rightly taken into account by the Trial
Court, the plaintiff, in her legal notice, had claimed that in the first week of
July, 2012, she came to know that the settlement deed is executed. But, in her
evidence, she has deposed that she came to know of the same about four or five
years ago. This apart, it is also on record that the plaintiff's husband's property
is also the adjacent property and she is in cultivation of the same. The patta in
respect of the settled extent of land has been mutated in the name of the second
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defendant. If all these circumstances are taken in the record, the appellant
cannot be believed to say that she came to know the settlement deed only
recently or in the first week of July, 2012 and therefore, when the settlement
deed is executed in favour of the second defendant and pursuant to which, the
second defendant is in possession and enjoyment of the same and especially,
when D.W.1, the widow submits that she was also ostracized by the family and
is not in talking terms with the first defendant, it cannot be held that the
plaintiff was not in the knowledge of the things, being the close relative.
Therefore, as far as the extent of one acre in the A-schedule property, which is
conveyed by the settlement deed is concerned, since the settlement deed was
not questioned within the limitation period of three years and the same is in the
separate possession and cultivation of the second defendant, I hold that the
prayer of the plaintiff to declare the settlement deed as null and void is
unsustainable, barred by limitation and therefore, the one acre extent of land,
being part of the A-schedule property absolutely belongs to the second
defendant and will not be available for partition.
14. Now, coming to the remaining extent of 2.8 acres is concerned, I am
of the view that the decision of the Trial Court is unsustainable for the
following reasons:-
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(i) The plaintiff has categorically pleaded that the joint family property
was sold on 27.04.1981 and out of the sale proceeds, A-schedule property is
purchased. There is no contrary pleading even in the written statement filed by
the second defendant. The first defendant remained exparte;
(ii) In discharge of her burden, the plaintiff has got into the box and since
she was also one of the sellers who signed Ex.A-5, had categorically deposed
that they got the money and have purchased the property;
(iii) P.W.2, who is one of the purchasers under Ex.A-5, the elderly
person has got into the box and has categorically deposed that he purchased the
property from the joint family and the money was used by them to purchase A-
schedule property and that the A-schedule property under joint cultivation;
(iv) Similarly, P.W.3, the seller of A-schedule property was also
examined on behalf of the plaintiff, who also categorically deposed that he
accepted the sale consideration on behalf of the joint family property and after
purchase of the property, the same was under joint cultivation and possession;
(v) Above all, the recital in Ex.A-5 clearly states about the purpose of the
purchase of another land for the first defendant. Therefore, on a cumulative
reading of all the evidence on record, it can be seen that the plaintiff has
discharged her onus, establishing that even though the remaining extent of the
A-schedule property stands in the name of the first defendant, it is not his
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individual property, but, being the joint family property, purchased out of the
joint family nucleus. It is once again necessary to reiterate that the first
defendant had remained exparte before the Trial Court as well as before this
Court. In that view of the matter, to that limited extent, the plaintiff is entitled
to succeed.
15. The Appeal Suit is accordingly partly allowed on the following
terms:-
(i) The judgment and decree, dated 01.09.2014 of the learned III
Additional District Judge, Salem in O.S.No.231 of 2012 is confirmed inasmuch
as it dismissed the suit in respect of the B-schedule property;
(ii) The judgment and decree, inasmuch as it refuses the relief of
declaration that the settlement deed, dated 02.12.2003 as void and
unenforceable, and holding that the said one acre extent of A-schedule property
will not be available for partition, is also upheld;
(iii) The decision and findings in respect of the rest of the 2.8 acres of A-
schedule property are set aside and it is held that the plaintiff be entitled for one
half share in the 2.8 acres of the A-schedule property, leaving out the one acre
extent covered by the Ex.A-2 and the preliminary decree is be and hereby
granted; and the plaintiff will be entitled to move such application for final
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A.S.No.508 of 2015
decree for partition and separate possession of the same;
(iv) The suit in respect of the relief of permanent injunction also stands
dismissed;
However, there shall be no order as to costs.
13.09.2022
Index : yes/no
Speaking order/Non-speaking order
grs
To
The III Additional District Judge, Salem.
D.BHARATHA CHAKRAVARTHY. J.,
grs
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A.S.No.508 of 2015
A.S.No.508 of 2015
13.09.2022
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