Madras High Court
Mr.N.Chokalingam vs Mrs.S.Prema on 6 June, 2023
AS.No.560/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
AS.No.560/2016
1.Mr.N.Chokalingam
2.Mr.N.Somasundaram .. Appellants
Vs.
1.Mrs.S.Prema
2.Mrs.Meenakshi
3.Mrs.S.Amsa Sujathan
4.Mr.A.Chidambaram
5.M/s.CFA Customer Relationship Centre
Thirumagal Bhavana, 100 Feet Road
Gandhipuram, Coimbatore 641012.
6.M/s.Sri Srivatsa Traders
Door No.198, 100 Feet Road
Gandhipuram, Coimbatore 641 012.
7.M/s.The Rainbow Mobiles
Door No.199, 100 Feet Road,
Gandhipuram, Coimbatore 641 012.
8.M/s.VIP Modern Furniture Danya Agencies
Thirumagal Bhavanam, 100 Feet Road
Gandhipuram, Coimbatore 641 012.
https://www.mhc.tn.gov.in/judis 1
AS.No.560/2016
9.Mr.S.P.Paramasivam
Auditor, Thirumagal Bhavanam
100 Feet Road
Gandhipuram, Coimbatore 641 012. .. Respondents
Prayer:- Appeal Suit filed under section 96 of CPC against the decree and
judgment dated 31.03.2016 passed in OS.No.653/2009 on the file of
learned IV Additional District Judge, Coimbatore.
For Appellants : Mr.D.Kanagasundaram
For R1 : Mr.J.Pothiraj
RR2 to 4,6&9 : No appearance
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) Plaintiffs in OS.No.653/2009 on the file of the IV Additional
District Court, Coimbatore, are the appellants in the present
Appeal.
(2) The appellants filed the suit for partition of their 4/5 th shares in the
suit property and for consequential reliefs.
(3) The case of the appellants as plaintiffs, in the plaint, can be
summarised as follows:
AS.No.560/2016
(4) Plaintiffs and defendants 1 and 2 are sons and daughters of one
Mr.Natarajan and Mangalambal. One Vasantha Kokilam was also
the other daughter of Natarajan and she died before suit.
Defendants 3 and 4 are the children of the deceased daughter
Vasantha Kokilam.
(5) It is the case of the plaintiffs that the suit properties are the joint
family properties of plaintiffs and their father. The same was
purchased and registered under a Sale Deed dated 27.06.1973
[Ex.B2] in the name of Mr.Natarajan. Since Mr.Natarajan, was the
Kartha and head of the family, it is stated that the properties were
purchased in his name out of the income from the joint family
business. It is the further case of the plaintiffs that the family had a
business of letting out vessels, furnitures and other items suitable
for marriage functions and like events and social gatherings.
Stating that the father and sons jointly exerted and looked after the
business, it is contended that the income and savings from the
business were utilised to purchase the suit properties. It is stated
that the family members at all times, treated and acknowledged the
AS.No.560/2016
suit properties as the joint family properties of plaintiffs and their
father.
(6) The further case of the plaintiffs is that the 2 nd defendant though
got married, she got separated from her husband and was living
with her parents as a divorcee. The father of plaintiffs was
suffering from sugar complaint and several other ailments. In view
of his physical ailments, the plaintiffs' father could not maintain
mental balance and it was at that time, the daughters had brought
the two documents, namely,the Sale Deeds dated 30.01.1995 and
01.02.1995 marked as Exs.B3 and B4 in favour of Vasantha
Kokilam, the deceased daughter and 1st defendant. According to
plaintiffs, the documents were not supported by any consideration.
It is the further case of plaintiffs that their father had no power to
alienate the properties and the fictitious documents, namely the
Sale Deeds, are therefore, void and not binding on plaintiffs.
(7) The plaintiffs further state that their sisters started continuously
staying with plaintiffs' parents and defendants 1 and 2 colluded
with their parents and brought about a Settlement Deed dated
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04.12.2002 marked as Ex.B5 taking advantage of their fiduciary
position. Since the daughters were already given enough
properties by their parents, it is contended that the Settlement Deed
could not have been executed but for the physical ailments and
mental incapacity of their father. The father of plaintiffs died
intestate on 03.04.2004 and the monther Mangalambal died on
20.10.2004. The plaintiffs as members of joint family, claimed to
1/3rd share each and 1/18th share in their father's 1/3rd share and
1/19th share in their mother's 1/18th share. In all, the plaintiffs
claimed that they are entitled to 4/5th share in the suit properties.
(8) The suit was resisted by the 1st defendant by filing a written
statement. She denied the averments made in the plaint parawise.
It is the case of the 1st defendant that the suit properties are the
absolute self-acquired properties of her father namely
Mr.Natarajan. The contention of plaintiffs that the father
purchased the suit property as Kartha and head of family was
emphatically denied. It is stated that there was no family business
to yield income in 1973 and that the property was purchased out of
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his own savings. The 1st defendant specifically denied the
contention in the plaint that plaintiffs' father earned income from
the family business even in the year 1973. Referring to the fact
that 2nd defendant is a divorcee and affected by epilepsy, the 1 st
defendant contended that 2nd defendant was under the care and
custody of her parents and that their father executed the Sale Deeds
in favour of 1st defendant and Vasantha Kokilam for a valuable
consideration and there is no question of collusion or defendants
dominating the will of their father to get the Sale Deeds. Stating
that the Sale Deeds executed in the year 1995 is well known to
plaintiffs, it is contended by 1st defendant that plaintiffs never
questioned the alienations at any point of time during the life time
of their father. After referring to the Settlement Deed, the 1 st
defendant contended that their father was always desirous of giving
the remaining properties by way of settlement and plaintiffs have
no right to question the alienations or the Settlement Deed which
was validly executed by their father in favour of defendants 1 and 2
and their sister Vasantha Kokilam.
AS.No.560/2016
(9) The Trial Court, after considering the pleadings, framed the
following issues:-
1. Whether the plaintiffs are entitled for the relief
claimed?
2. Whether the plaintiffs are entitled for the relief
of permanent injunction?
3. Whether the suit property belongs to D1 and
her sisters based on Sale Deeds and Settlement
Deed?
4. To what other relief the plaintiffs are entitled
to?
(10) Before the Trial Court, 2nd plaintiff was examined as PW1 and one
K.L.Arunachalam was examined as PW2. Exs.A1 to A5 were
marked on behalf of plaintiffs. 1st defendant examined herself as
DW1 and marked Exs.B1 to B19.
(11) After elaborately discussing the evidence in detail and considering
the lengthy arguments of the learned counsels appearing on either
side, the Trial Court found that there is no oral or documentary
evidence to prove the case of plaintiffs that the suit properties are
joint family properties. Since no documentary evidence was
AS.No.560/2016
produced by plaintiffs to show that there was joint family business
which yielded substantial income, the Trial Court found that
without evidence, the properties cannot be held as joint family
properties. The Trial Court also relied upon several precedents for
the proposition that there is no presumption of properties being
joint family properties merely on account of existence of joint
family and that, burden lies on the person who asserts the property
as a joint family property to prove its character. After elaborately
extracting the evidence of plaintiffs, the Trial Court found that
existence of joint family properties has not been proved by
plaintiffs by any acceptable evidence. The Trial Court further held
that the father as the absolute owner of the suit properties, was
entitled to execute Sale Deeds and Settlement Deed marked as
Exs.B3, B4 and B5. The contention of plaintiffs that their sisters,
namely defendants 1 and 2 obtained the Sale Deeds and the
Settlement Deed under coercion and undue influence, was held not
proved. The Trial Court gave a finding that the plaintiffs miserably
failed to prove that their father was suffering from any mental
AS.No.560/2016
ailment as pleaded in plaint. Referring to the documents-Exs.B2
and B3 namely Sale Deeds, the learned counsel for the plaintiffs
before Trial Court, came up with a case that the father of plaintiffs
had admitted that he was taking only 10% share in the suit
properties and therefore, the properties are held to be the joint
family properties in which plaintiffs had definite share. This
contention was also rejected by the Trial Court. Aggrieved by the
judgment and decree in dismissing the suit for partition, the
plaintiffs have preferred the above Appeal Suit.
(12) Learned counsel for the appellants elaborately made his
submissions relying upon the documents filed before the Trial
Court. Learned counsel submitted that the Partnership business
was started in the year 1964 long prior to the Sale Deed obtained
by the father in the year 1973 and the properties were purchased
out of the income derived from the family business. Referring to
the Partnership Deed under Ex.A4 dated 04.01.1974, learned
counsel for the appellants submitted that the family was carrying
on business of letting on hire, furnitures, vessels and other utensils
AS.No.560/2016
for marriages and other functions from the year 1964 and the Trial
Court ought to have seen that the income from the business alone
was utilised for the purchase of properties under Ex.A3 dated
27.06.1973. Learned counsel then pointed out that the Trial Court
went wrong in relying upon several precedents which are not
applicable to the case on hand. Since the documents Exs.B3 to B5
are all void, it is submitted by the learned counsel for appellants tht
the Trial Court ought to have held that the alienations are not
binding on plaintiffs.
(13) This Court heard the learned counsel appearing for the 1st
respondent and also perused the materials placed.
(14) Having regard to the pleadings and submissions of the learned
counsels appearing on either side, the following points arise for
consideration in this appeal:
A) Whether the suit properties are the joint family
properties of appellants and their father
Natarajan or separate properties of Natarajan?
B) Whether appellants have proved that suit
properties were acquired by their father out of
AS.No.560/2016
joint family or from the income of the joint
family business?
C) Whether the Sale Deeds and the Settlement
Deed executed by Natarajan/appellants' father
is binding on appellants?
D) Whether the suit for partition is maintainable
without a prayer to invalidate the documents,
namely Sale Deeds and the Settlement Deed in
favour of defendants?
POINTS [A] & [B]:-
(15) It is the specific case of appellants in the plaint that the suit
properties are acquired out of the income from the joint family
business. However, it is admitted that the suit properties are
purchased under Ex.A3 dated 27.06.1973 in the name of appellants'
father Natarajan. It is not even pleaded in the plaint that the suit
properties were purchased out of ancestral nucleus. What is
pleaded in the plaint is that the suit properties were purchased in
the name of father as he was the Kartha or head of the family and
that the properties were acquired out of the joint family business
income. To sustain their plea, the plaintiffs have produced Ex.A4
AS.No.560/2016
dated 04.01.1974 which is a Partnership Deed. This Deed of
Partnership was between their mother Mangalambal and plaintiffs.
As per the said Partnership Deed, the partners have commenced the
business on 01.04.1973 by letting on hire, furnitures, vessels and
other utensils for marriages and other functions. Since the suit
properties were acquired in the name of father under Ex.A3 dated
27.06.1973 and the partnership business was started only on
01.04.1973, this Court cannot presume that there was substantial
income from the said business to acquire substantial properties by
paying consideration of Rs.32, 000/- in the year 1973. Though
there is reference to the fact that plaintiffs and their mother were
carrying on business from 1964, this Court cannot presume the
partnership business run by mother along with her two sons as a
joint family business without specific pleading. Nowhere it is
stated that the business was ancestral business. In the absence of
pleading or evidence that the business was started out of the joint
family income, we cannot treat the partnership business run by
plaintiffs along with their mother as a joint family business. From
AS.No.560/2016
the document-Ex.A3 dated 27.06.1973, it is seen that a sum of
Rs.12,000/- was paid and the father of plaintiffs agreed to pay
balance of Rs.20,000/- within a period of one year with interest @
12% per annum for the remaining amount. The source for paying
consideration is not indicated in the document Ex.A3. Though the
plaintiffs pleaded that the properties were acquired out of the joint
family business income, the joint family meant by appellants
cannot be anything but the partnership business carried on by the
appellants along with their mother Smt.Mangalambal. Absolutely
there is no evidence or pleading that this business was started by
the ancestors of Natarajan to treat the same as the ancestral
business of their family. When it is alleged that appellants along
with their mother started a business in the year 1964 itself, this
Court cannot presume that joint family as a whole, was involved in
the business. Absolutely there is no plea as regards nucleus, either
from the joint family properties or from any other source to treat
the properties as ancestral or coparcenary. If a mother and sons
start a business in partnership, it cannot be presumed to be a joint
AS.No.560/2016
family business unless the income from the joint family nucleus is
utilised for the business. At best, the business carried on by the
appellants can be considered as a business of members of a family.
Even assuming that the income from the said business is utilised
for the purchase of properties in the name of father, this Court
cannot presume that the properties are joint family properties.
When the income from the partnership business is utilised to
purchase properties in the name of a third party who is not a
partner, the property cannot be a property of the partners in
business. Partnership Firm may recover the money as a loan.
Above all, there is no acceptable evidence to show that the income
from the business was utilised to purchase the property in 1973.
(16) Having regard to the nature of plea, this Court finds that there is a
basic lacuna in the case pleaded by the appellants. It is well settled
that the plaintiff who assert that suit properties were purchased in
the name of his/her father out of the joint family nucleus or funds,
the burden lies on him/her to prove and there cannot be a
presumption particularly when the existence of joint family
AS.No.560/2016
nucleus is neither pleaded nor proved by plaintiff. Even if it is
proved that the joint family possess some joint property, that is not
sufficient unless it is proved that the joint family from its nature
and relative value may have formed nucleus from which the
property in question could have been acquired. Therefore, from the
nature of pleadings, this Court is unable to countenance the
submission of the learned counsel appearing for the appellants that
the properties were acquired in the name of their father out of the
joint family income so as to treat the properties as joint family
properties of appellants and their father. From the recitals of
Ex.A3, this Court has no clue as to the source of purchase. In the
absence of any evidence, the presumption is that the properties
were acquired in the year 1973 by the father and it is his separate
properties. Therefore, this Court hold that the suit properties are
separate properties of the appellants' father and the alienations by
father are binding on the appellants. Hence, Point [A] is
answered holding that the suit properties are separate
properties of the father of plaintiffs and defendants 1 and 2.
AS.No.560/2016
Point [B] is answered in negative and against appellants.
POINT [C]:-
(17) The appellants have pleaded that the documents, namely Sale
Deeds and Settlement Deed under Exs.B3 to B5 are void as the
said documents were obtained from the father when he was in a
disposition state of mind and that there was undue influence and
coercion. This Court finds that there is no specific plea of undue
influence or coercion satisfying the requirement of law. Assuming
that there is a plea of undue influence, this Court is unable to find
any evidence to show that defendants 1 and 2 and the deceased
daughter Vasantha Kokilam were in a position to dominate the will
of their father. It is admitted that appellants were doing business
successfully. Therefore, it is natural for the father to execute Sale
Deeds and the Settlement Deed in favour of his daughters. It is to
be noted that the appellants have not come forward to challenge the
Sale Deeds and the Settlement Deed on any ground within the
period of limitation. In such circumstances, this Court is unable to
countenance the arguments of the learned counsel for the
AS.No.560/2016
appellants. As pointed out by Trial Court, the appellants have
miserably failed to prove existence of joint family business or that
the suit properties were purchased out of the income derived from
the joint family business. Assuming that the appellants have
established that the income derived from the partnership business
was utilised for the purchase of suit properties, this Court cannot
treat the properties as joint family properties. Though the
appellants can recover the money that was utilised for purchase of
suit properties upon proof of payment within limitation, this Court
cannot treat the properties as properties of joint family in the
absence of specific plea and convincing evidence. Learned counsel
for the appellants relied upon the recitals of Exs.B3 and B4-Sale
Deeds to substantiate the argument. In the two Sale Deeds, the
appellants' father referred to the properties as his absolute
properties purchased under the Sale Deed dated 27.06.1973.
However, he has also referred to a family arrangement dated
12.01.1995. It is further stated that he was given 10% share of the
value of properties under the family arrangement that the Sale
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Deed is in respect of his undivided 5% of the assets. This recitals
do not corroborate the specific case pleaded by appellants in the
plaint. It is well settled that no amount of evidence can be let in
without a specific plea. The recitals of the subsequent Settlement
Deed is contrary to the recitals in the Sale Deeds under Exs.B3 and
B4. Having regard to the fact that the alleged family arrangement
dated 12.01.1995 is neither pleaded nor established, this Court is
unable to accept the case of appellants before this Court on the
basis of recitals in Exs.B3 and B4. Hence, the Sale Deeds and
the Settlement Deed executed by the father of appellants in
favour of his daughters, are binding on the appellants. Point
[C] is answered accordingly.
POINT [D]:-
(18) There is no specific prayer to set aside the Sale Deeds as well as
the Settlement Deed under Exs.B3 to B5. In the absence of a
prayer invalidating the documents of conveyance, the suit for
partition is not maintainable. Hence, Point [D] is answered
accordingly.
AS.No.560/2016
(19) This Court is unable to find any merit in the Appeal and the Appeal
suit is liable to be dismissed.
(20) Accordingly, AS.No.560/2016 stands dismissed confirming the
judgment and decree dated 31.03.2016 passed in OS.No.653/2009
by the learned IV Additional District Judge, Coimbatore. No costs.
[SSSRJ] [CKJ]
06.06.2023
AP
Internet : Yes
To
1.The IV Additional District Judge
Coimbatore.
2.The Section Officer
VR Section, High Court, Chennai.
AS.No.560/2016
S.S.SUNDAR, J.,
AND
C.KUMARAPPAN, J.
AP
AS.No.560/2016
06.06.2023
https://www.mhc.tn.gov.in/judis 20
