Madras High Court
K.Arjunan vs K.Sagadevan (Died) on 7 December, 2023
S.A.No.174 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.174 of 2018
K.Arjunan
...Appellant
Vs.
K.Sagadevan (died)
1.S.Prakash
2.S.Rajesh
3.Tmt.Malliga
4.Mrs.Vanitha
...Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code,
praying to set aside judgment and decree dated 28.07.2017 made in A.S.No.8
of 2013 on the file of the Court of Additional Special Judge, Krishnagiri,
confirming the judgment and decree dated 30.11.2012 made in O.S.No.437 of
2008, on the file of the Court of the District Munsif, Krishnagiri by allowing
this second appeal.
For Appellant : Mr.R.Agilesh
For Respondents : Mr.G.Vigneshwar
for M/s.V.Nicholas
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S.A.No.174 of 2018
JUDGMENT
The Plaintiff in the suit is the appellant. He filed a suit seeking
declaration of title and also injunction in respect of suit 'A' schedule property.
He further claimed pending suit, the defendants trespassed into the portion of
suit 'A' schedule property and the encroached portion was shown as suit 'B'
schedule property and relief of recovery of possession was sought for in respect
of 'B' schedule property. The suit was dismissed by the trial Court. The First
Appeal filed by the appellant/plaintiff was also dismissed. Hence, he is before
this Court.
2. According to the appellant/plaintiff, the first respondent/first
defendant is his divided brother. The respondents 2 and 3/defendants 2 and 3
are sons of first respondent. He claimed that there was an oral partition in the
family on 28.10.1992 between the appellant and the first respondent and their
another brother Nagulan and the joint family properties were divided among
them. It was also claimed by the appellant that he purchased the present suit
property from one Veerammal under registered sale deed dated 14.12.1990.
The respondents without having any manner of legal right whatsoever
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attempted to trespass the suit property and hence he filed a suit for
declaration of title and permanent injunction. Pending suit, the defendants
encroached a portion of the suit property and hence the encroached portion
was shown as suit 'B' schedule property and a relief of recovery of possession
was sought for in respect of suit 'B' schedule property.
3. The first defendant/first respondent filed a written statement
denying the oral partition dated 28.02.1982 pleaded by the appellant. It was
the case of the respondent in the written statement that the appellant was the
senior most male member of the family and in that capacity he purchased the
suit property in his name out of joint family funds. Therefore, the suit property
was treated only as a joint family property all along. The respondents also
claimed that there was an oral partition in the family during August 1996 and
as per the oral partition the suit property was sub-divided into various sub-
divisions. The appellant was allotted sub-division Nos.51/2F3, 51/2F7
measuring total extent of 0.19.5 hectares out of 1.3 acres. The first defendant
was allotted sub-Division Nos.51/2F2, 51/2F4 and 51/2F6 measuring 0.16.5
hectares. The other brother by name Nagulan was allotted Sub-Division
Nos.51/2F1, 51/2F5 measuring 14 hectares. Thus the appellant and
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defendants have been in possession and enjoyment of their respective allotted
sub-divisions by cultivating the same. The respondents claimed that the oral
partition of the 'A' schedule suit property that had taken place during August
1996 was suppressed by the appellant and he laid the suit taking advantage of
the fact that sale deed in respect of the suit property stood in his name.
4. After the amendment of the plaint to include prayer for the
recovery of possession, the respondents also filed a additional written
statement denying the absolute title of the appellant over the suit property
based on the averments already made in the written statement.
5. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that the appellant failed to
prove the oral partition dated 28.10.1982. The trial Court also factually found
that the suit property was divided among brothers and different sub-division
numbers were assigned to the portions allotted to all three brothers and hence
dismissed the suit.
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6. Aggrieved by the same, the appellant preferred a First Appeal
in A.S.No.8 of 2013, on the file of the Additional Special Judge, Krishnagiri,
the First Appellate Judge also concurred the findings of the trial Court and
dismissed the appeal. Aggrieved by the same, the appellant has come up by
way of this second appeal.
7. The learned counsel appearing for the appellant submitted that
he also filed a petition for reception of additional evidence in CMP.No.4484 of
2018 for production of Panchayat Muchaliga dated 28.10.1982 as an
additional evidence in the Second Appeal. The learned counsel further
submitted that Panchayat Muchaliga dated 28.10.1982 was misplaced by the
appellant and the same could not be traced out during trial, therefore the
appellant could not produce the same before the Courts below. The learned
counsel further submitted that the respondents pleaded oral partition in the
year 1996. However, they have not produced any evidence in support of said
pleading. The sale deed for the suit property stands in the name of the
appellant and therefore it should be presumed that the suit property is the
absolute property of the appellant in the absence of any evidence to show that
the suit property was purchased out of joint family funds.
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8. It is not in dispute that the appellant/first respondent and one
Nagulan were brothers. The appellant has come to the Court with a specific
plea, there was a oral partition in the family on 28.10.1982 and the joint family
properties were divided. After partition, the suit property was purchased by
the appellant in the year 1990 in his own name and therefore, it should be
treated as his separate property.
9. The oral partition pleaded by the appellant dated 28.10.1982
was specifically disputed by the respondents in the written statement and they
further pleaded that the suit property was purchased in the name of the
appellant in his capacity as a senior most male member of the family.
10. It is settled law, if the property is purchased in the name of
senior most male member of the family, the presumption is it was purchased
out of joint family funds. In this regard, it would be appropriate to refer to the
decision in Mallesappa Bandeppa Desai and Ors. Vs. Desai Mallappa and
Ors reported in AIR 1961 SC 1268. In the said case law Aped Court
observed as follows:
“We do not know what the income of the said properties was;
obviously it could not be of any significant order; but, in our
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opinion, there is no doubt that where a manager claims that
any immovable property has been acquired by him with his
own separated funds and not with the help of the joint family
funds of which he was in possession and charge, it is for him
to prove by clear and satisfactory evidence his plea that the
purchase money proceeded from his separated fund. The onus
of proof must in such a case be placed on the manager and
not on his coparceners.”
Therefore, unless the appellant succeeds in proving that there was
a partition in the family in the year 1982 and the jointness of the family was
disturbed, the general presumption available to the acquisitions made by the
senior most male member of the family can very well be pressed into service in
this case.
11. Both the Courts below, on appreciation of oral and
documentary evidence available on record, came to the conclusion that the
appellant/plaintiff failed to prove the oral partition pleaded by him. In Ex.A6
release deed executed by the first defendant in respect of some other properties
purchased in the year 1974, no reference was made with regard to the oral
partition of the year 1982. Further, there is no evidence available on record to
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show that in pursuance of oral partition in the year 1982, revenue records were
mutated. In such circumstances, both the Courts below, correctly came to the
conclusion that the appellant failed to prove the oral partition pleaded by him.
12. As far as the petition to raise the additional evidence filed
by the appellant is concerned, the appellant in his affidavit had stated that the
document was misplaced in his house and he retrieved the same while
cleaning store room. The said averments made by the appellant in the
affidavit filed in support of petition to receive additional document
is not acceptable to this Court. The Panchayat Muchaliga
dated 28.10.1982 was very well available in the hands of the appellant when
the trial went on. Had he exercised due diligence, he could have produced the
said document before the trial Court itself. His failure to retrieve the document
from the store room points to a clear negligence on his part. Therefore, the
appellant has not stated any convincing reasons for his failure to produce the
said Panchayat Muchaliga before the trial Court. Further, the document now
produced by the appellant is the photo copy of the alleged Panchayat
Muchaliga dated 28.10.1982. A reading of the same would suggest as per the
terms of the said Panchayat Muchaliga, the appellant has to pay some amount
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to his brother said Nagulan and get a registered document executed within six
months. There is no evidence to show that as per the terms of said Panchayat
muchaliga, the appellant paid amount to Nagulan and any registered document
was executed in pursuance of the same.
13. Even the other brother Nagulan is not impleaded in the suit.
In such circumstances, reception of Panchayat Muchaliga dated 28.10.1982
will not be helpful to this Court to decide the appeal in a more satisfactory way.
Therefore, CMP.No.4484 of 2018 is dismissed.
14. Once this Court comes to a conclusion that the oral partition
pleaded by the appellant dated 28.10.1982 has not been proved the family is
presumed to be joint family. In such circumstances, any acquisition made in
the name of senior most male member shall be presumed to be out of joint
family funds. Therefore, merely because the sale deed of the suit property
stands in the name of the appellant, who is admittedly the senior most male
member of the family, we cannot come to a conclusion that the property was
acquired by appellant out of his own funds.
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15. Further based on Exs.B1 and B2 Power of Attorney executed
by the appellant and first respondent in favour of one Saravanan and also
revenue documents evidencing sub division of the suit property under Exs.B5
to B9, both the Courts below came to the factual conclusion that the suit
property was divided among the appellant, the first respondent and other
brother Nagulan and separate sub-division numbers were assigned in the name
of three brothers. If the suit property was not treated as a joint family property
and divided thereafter, there is no necessity to effect sub division and obtain
revenue documents in the name of three brothers. Therefore, the conclusion
reached by the Courts below that the suit property was treated as a joint family
property and the same was divided among three brothers is also based on
evidence available on record. Therefore, the appellant failed to prove that the
suit property is his exclusive property. As a necessary consequence, the Courts
below negatived claim for declaration of title and other consequential reliefs.
16. I do not find any substantial question of law arising for
consideration in this second appeal to interfere with the said factual findings
rendered by the Court below.
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17. In nutshell,
(a) The Second Appeal is dismissed;
(b) In the facts and circumstances of the case, there shall be no
order as to costs.
07.12.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
ub
S.SOUNTHAR, J.
ub
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To
1.The Additional Special Judge, Krishnagiri.
2.The District Munsif, Krishnagiri.
07.12.2023
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