Madras High Court
Venkatachalam vs Sarasu on 10 January, 2023
S.A.No.142 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.142 of 2005
1.Venkatachalam
2.Kalaiselvi (Died)
3.Gowtham
4.Aravindh ...Appellants
Vs.
1.Sarasu
2.Krishnaveni
3.Kannammal (Died)
4.Ganesan
5.Sakthivel
6.Easwari @ Pappal
1/15
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S.A.No.142 of 2005
7.Ayyappan
8.Sivakami
9.Sadayappan
10.Sivanandam
11.Pavathal
12.Gangadevi ...Respondents
(Appellants 3 & 4 B/R as LRs of the deceased 2nd appellant.
Respondents 4 to 12 B/R as LRs of the deceased 3rd respondent vide
Court order dated 29.09.2021 made in C.M.P.Nos.10323, 6504, 10329
& 10341 of 2021)
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 31.12.2003 made in
A.S.No.85 of 2003 on the file of the Additional District Judge – Fast
Tract Court No.IV, Erode at Bhavani confirming the Judgement and
Decree dated 14.06.2002 made in O.S.No.474 of 1988 on the file of the
Principal District Munsif Court, Bhavani.
2/15
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S.A.No.142 of 2005
For Appellants : Mr.T.Murugamanickam
Senior Counsel
For Ms.Zeenath Begum
For Respondents : Mr.V.Anandamurthy
7 & 10
For Respondents : No Appearance
1 to 6, 8, 9, 11 & 12
JUDGMENT
The plaintiffs are the appellants before this Court challenging the
concurrent Judgement and Decree passed against them. The facts are
briefly stated herein below and the parties are referred to in the same
rank as before the Trial Court.
2. The plaintiffs had filed a suit O.S.No.474 of 1988 on the file of
the Principal District Munsif, Bhavani, for a declaration and injunction.
It is their case that the 2nd plaintiff is the wife of the 1st plaintiff. The 1st
defendant is the sister of the 1st plaintiff's father. The 2nd defendant is
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S.A.No.142 of 2005
the son of the 1st defendant. It is the case of the plaintiffs that the 1st
plaintiff's father Karuppa Gounder owned considerable landed property
in Kurichi village and he was living at Periakurumbapalayam along
with his daughter Sembayammal and his son, the 1st plaintiff. In the
year 1971 the said Karuppa Gounder died.
3. It is the case of the plaintiffs that the suit property belonged to
the family of Karuppa Gounder, who was in possession and enjoyment
of the same for over 40 years. Under a Will dated 04.01.1971, the said
Karuppa Gounder has bequeathed his half share in the suit property and
other properties in favour of the 2nd plaintiff. The 1st plaintiff being the
only son of the said Karuppa Gounder is entitled to the other half share
in the properties.
4. It is the case of the plaintiffs that the suit property was
originally purchased in the name of Palaniammal, the mother of the
said Karuppa Gounder and the 1st defendant, since at that relevant point
of time Karuppa Gounder and his brother were minors. Thereafter,
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S.A.No.142 of 2005
Palaniammal was in management of family properties. The properties
though purchased in the name of Palaniammal was always treated as
joint family property and never the personal property of the said
Palaniammal. However, taking advantage of the fact that the properties
stood in the name of Palaniammal, the 1st defendant appears to have
obtained settlement deed on 07.09.1939 in her favour. The settlor
Palaniammal had no right to execute the settlement deed. They have
also not been in possession of the same. However, of late they have
been attempting to interfere with the plaintiff's peaceful possession and
enjoyment of the property. Therefore, the above suit has been filed.
5. The 1st and 2nd defendants had filed a written statement which
was adopted by defendants 3 to 7 inter alia denying the case of the
plaintiffs. The defendants would submit that the plaint is absolutely
silent about the date of the death of Palaniammal, her husband Semba
Gounder and their sons Semba Gounder and Karuppa Gounder. The
defendants would submit that apart from the two sons, Palaniammal
and Semba Gounder had three daughters, namely, Nachayee, Nanjayee
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S.A.No.142 of 2005
and Pappayee @ Sembayammal. The 1st defendant is the third daughter
and last of the five children.
6. The defendants had denied the fact that the property were
purchased in the name of Palaniammal only because her children were
minors. They would submit that the property belonging to the Semba
Gounder, the husband of the said Palaniammal did not yield sufficient
income so as to constitute the nucleus for the purchase of further
properties. The said Palaniammal on the other hand was the only
daughter of her parents and she had a brother and her family was well
off. The said Palaniammal was given cash and jewels at the time of
marriage and with this money she had independently purchased the suit
property on 15.02.1922 for a sale consideration of a sum of Rs.1,250/-.
It was only Palaniammal who was enjoying the property exclusively
and absolutely. The property was never treated as a family property.
7. The defendants would submit that the 1st defendant was the last
to get married and her brothers were not in a position to provide her
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S.A.No.142 of 2005
with the customary cash and seers. The 1st defendant was given in a
marriage to one Marappa Gounder who belonged to an ordinary family.
The elder sisters of the 1st defendant were given in marriage into rich
families and they have been given all the cash and seers. Therefore, the
said Palaniammal had executed a settlement deed in favour of the 1st
defendant and put her in possession. The 1st defendant has had the
revenue records mutated in her name and she has been paying the kist.
The 1st defendant became a young widow and she has been cultivating
the suit land herself and appropriating the income for maintaining her
children.
8. It is the case of the defendants that after 1970, 1st defendant
was living with her daughter at Manikkampalayam. The 2 nd defendant,
her son after attaining majority was driving lorries and also helping in
the cultivation of the lands. Karuppa Gounder while alive had never
made any claim to the suit property nor objected to the settlement deed
being executed in favour of the 1st defendant. The revenue records
provided by the plaintiffs are fabricated documents created by them for
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S.A.No.142 of 2005
the purpose of the suit. Meanwhile, Karuppa Gounder who had two
wives was living with his first wife's daughter Sembayammal. The said
Sembayammal had a strong influence over her father. A year prior to
the death of Karuppa Gounder, he was totally bed ridden and had also
lost his mental faculties. At that point of time, Sembayammal had
arranged to have executed the Will dated 04.01.1971, in and by which
the properties were bequeathed in favour of her daughters. Therefore,
the defendants pleaded that the suit may be dismissed.
9. The Trial Court had framed the following issues:
“1.Whether the suit property was purchased in the
name of Palaniammal for the benefit of her family.
2.Whether possession was delivered to the first
defendant of the suit property by virtue of the settlement
deed dated 7.9.1939?
3.Whether the settlement deed dated 7.9.1939 is
invalid for any of the reasons mentioned in the plaint?
4.Whether plaintiff have perfected their title to the
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S.A.No.142 of 2005
suit property by adverse possession?
5.Whether plaintiffs are entitled to the declaration
and Injunction prayed for?
6.To what relief?
10. The plaintiffs had examined P.W.1 to P.W.3 and marked
Ex.A.1 to Ex.A.39. On the side of the defendants D.W.1 alone had
been examined and Ex.B.1 to Ex.B.20 were marked. The learned
Principal District Munsif, Bhavani, dismissed the suit.
11. Aggrieved by the same, the plaintiffs had filed A.S.No.85 of
2003 on the file of the Additional District Judge, Fast Track Court IV,
Erode at Bhavani. The learned Additional District Judge, Fast Track
Court IV, Erode at Bhavani had also confirmed the findings and the
Judgement of the Trial Court and dismissed the appeal. Aggrieved by
the same, the plaintiffs are before this Court.
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S.A.No.142 of 2005
12. The above Second Appeal was admitted on the following
Substantial Questions of Law:
“(a) Whether it can be presumed that merely because
a property purchased in the name of a widow, it was for
her benefit, or that it would enure to the benefit of the joint
family of which she is the manager?
(b) Whether the judgment of the Courts below are
vitiated in that they have cast the burden on the plaintiffs
to prove the joint family nucleus which existed 80 years
ago?
(c) Whether the judgment and decree in O.S.No.1264
of 1924 marked in this case as Ex.A.3 would legally
invalidate any title in favour of the contesting defendant,
assuming she had a settlement deed?”
13. Heard the learned senior counsel appearing on behalf of the
appellants / plaintiffs alone since the contesting respondents had not
entered appearance though they had been served. The 2nd defendant
who is the contesting defendant has also not entered appearance and the
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S.A.No.142 of 2005
3rd respondent who had passed away is represented by her legal
representatives, namely, respondent 4 to respondent 12. The
respondents 7 and 10 alone are represented by the learned counsel.
14. The learned senior counsel would contend that the plaintiffs
have been in possession and enjoyment of the property for over several
decades. The learned senior counsel would submit that the property
was a joint family property of Karuppa Gounder and the 1st plaintiff
being his son was entitled to the same. The learned senior counsel
would further contend that the defendants have not let in any evidence
whatsoever to show that they are in possession of the property. The
learned senior counsel further would further argue that Palaniammal
had no right, title or interest of the property for her to settle the same in
favour of the 1st defendant and further the enjoyment of the property by
defendants 1 and 2 has not been proved.
15. Heard the learned senior counsel and perused the records.
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S.A.No.142 of 2005
16. The records would reveal that the property was purchased by
Palaniammal as early as in the year 1922 and in 1939 she has settled
her property on her daughter, the 1st defendant. This settlement has
been effected only to make provision for the 1st defendant who had lost
her husband at a very young age. That apart, since the settlement was
effected in her favour, the 1st defendant has also been alienating the
portions of the property, thereby, exercising her absolute right over the
same. The plaintiffs have not been able to explain as to why Karuppa
Gounder during his life time had not taken any steps to set aside the
settlement deed executed in favour of the 1st defendant. Further,
Karuppa Gounder is the identifying witness in the settlement deed
executed by Palaniammal in favour of the 1st defendant.
17. The Courts below have rightly considered the evidence
available on record which would clearly show that the 1st defendant's
mother Palaniammal owned the property absolutely and she has
exercised her right as absolute owner to settle the property only on the
1st defendant since the other two daughters were comfortably well of,
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whereas, the 1st defendant not only did not have the benefit of having
her marriage celebrated pomp and show but had lost her husband at a
very young age. It therefore naturally followed that the mother had
stepped in to make provisions for her daughter, the 1st defendant.
18. Therefore, the findings of both the Courts below is correct
and does not require any re-consideration. Accordingly, the
Substantial Questions of Law are answered against the plaintiffs.
19. In the result, the Second Appeal stands dismissed. No costs.
10.01.2023
Index : Yes/No
Internet : Yes/No
kan
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S.A.No.142 of 2005
To
1.The Additional District Judge – Fast Tract Court No.IV,
Erode at Bhavani.
2.The Principal District Munsif Court,
Bhavani.
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S.A.No.142 of 2005
P.T. ASHA, J,
kan
S.A.No.142 of 2005
10.01.2023
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