Madras High Court
S.Ashok vs / on 17 April, 2024
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.692 of 2023
THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 26.03.2024
PRONOUNCED ON : 17.04.2024
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.692 of 2023
and
C.M.P.(MD)No.16992 of 2023
1.S.Ashok
2.S.Raja ... Appellants
/Vs./
1.Nirubha Sundarrajan
2.Seenivasan Chettiar
3.S.Sumathy
4.S.Seenivasa Babu ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgement and Decree dated 25.04.2022 in A.S.No.6 of 2020 on the
file of the Sessions Judge, Fast Track Mahila Court, Sivagangai, reversing the
Judgment and Decree dated 18.12.2019 passed in O.S.No.49 of 2019 on the file of
the Learned Sub Court, Manamadurai.
For Appellants : Mr.V.Malaiyendran
For R1 : Mr.G.Aravinthan
For R2 to R4 : Mr.P.Banu Prasath
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1/34
S.A.(MD).No.692 of 2023
JUDGMENT
The plaintiffs are the appellants herein and the defendants are the
respondents herein. For the sake of convenience, the parties are referred as
plaintiffs and defendants as per the ranking in the suit.
2. The plaintiffs namely S.Ashok and S.Raja had filed the suit for partition
claiming 1/5th share each and to declare the alleged sale deed dated 14.12.2011, in
Document Registration No.5875/2011 and 5876/2011 as void and permanent
injunction restraining the 1st defendant from disturbing the plaintiffs' peaceful
possession and enjoyment of the suit property. The Trial Court after appreciating
the evidence and the deposition of the parties had allowed the suit. Aggrieved
over the same, the 1st defendant had preferred first appeal and the First Appellate
Court after re-appreciating the evidence and the deposition had allowed the
appeal. Aggrieved over the same, the plaintiffs had preferred the present second
appeal raising various substantial questions of law.
3. The brief facts are that the 2nd defendant is the father of two plaintiffs and
3rd and 4th defendants. The 1st defendant is the purchaser of the property.
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Originally the schedule property belongs to the plaintiffs' grandfather namely to
Duraiswami Chettiar. On 22.02.1964, the said Duraiswami Chettiar and his three
sons namely Shanmugam Chettiar, Thaandavam Chettiar and Srinivasan Chettiar
(2nd defendant) had executed registered partition deed in Document No.220/1964
in Sub-Registrar Office, Manamadurai. In the said partition, the 2nd defendant was
allotted with the suit mentioned properties along with some five other properties.
In short, the second defendant was allotted six properties in the said partition
deed. Ever since from the date of partition, the plaintiffs are in possession and
enjoyment of the suit property along with the defendants 2 to 4. Since the suit
properties are ancestral property, the plaintiffs and the defendants 2 to 4 have 1/5 th
share each in the suit property. Due to family circumstances, the plaintiffs and 3rd
and 4th defendants left their native place. However, the suit properties are under
the joint possession and each plaintiffs have 1/5th share in the suit property. Since
the 2nd defendant is residing adjacent to the suit property, the plaintiffs were under
the bona fide impression that the 2nd defendant would look after the suit property.
While that being so, the 1st defendant made the 2nd defendant to execute registered
sale deeds in Document Nos.5875/2011, 5876/2011 in Sub-Registrar Office,
Madurai dated 14.12.2011 and sold the suit property to the 1st defendant including
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the plaintiffs’ share. The 2nd defendant was never ever authorised to execute the
sale deed. Hence, on 09.07.2013 the 2nd plaintiff issued a legal notice to the 1st
defendant and the 1st defendant had replied on 29.07.2013 with the false and
baseless allegations. But the 2nd defendant did not reply to the said notice. On
01.08.2013 the plaintiffs had applied for true copy of the registered sale, which
reveals that the 1st defendant had purchased the suit property, including the shares
of the plaintiffs without the consent or signature of the plaintiffs and the 3rd and 4th
defendants. The 2nd defendant alone executed the two sale deeds, which are
illegal. Hence the said sale deeds executed by the 2nd defendant in favour of the
1st defendant does not affect the rights of the plaintiffs. On 19.08.2013, the 1st
defendant came and tried to take illegal possession of the suit property but the
same was intervened by the neighbours. Hence, the plaintiffs preferred police
complaint, but the police refused to take the complaint, since it is civil matter.
Hence, the plaintiffs had filed the present suit.
4. The 1st defendant had filed written statement denying all the allegations
as false and stated that the plaintiffs are making false claims, further the plaintiffs
and the defendants 2 to 4 have instituted the collusive suit, which was filed with
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the sole intention to defraud the 1st defendant, to gain an unfair advantage to grab
the property. The suit notice was issued on 09.07.2013 and the same was suitably
replied by the 1st defendant. As admitted in the plaint there are two sale deeds
executed the same day i.e., 14.12.2011 and it would reveal that the sale
consideration in Document No.5875 of 2011 is Rs.3,85,000/- and in Document
No.5876 of 2011 is Rs.2,28,750/-. Totally, the sale consideration comes to Rs.
6,13,750/-. However, the total value of the suit properties as shown in the plaint is
Rs.4,78,750/-, hence, the Court fee that is paid is erroneous. Further, the 1st
defendant was in possession of the property from 10.11.1997 and the plaintiffs
had atrociously sought for permanent injunction instead of recovery of possession
and hence, the suit is liable to be dismissed. Moreover, along with the suit
property, there are other five properties available for partition which is evident
from the partition deed and in such circumstances, non-joinder of other properties
is fatal to the case and the suit for partial partition is liable to be dismissed. Hence,
the plaintiffs may be called upon to disclose and furnish the particulars and details
of properties allotted in the partition deed dated 22.02.1964. Further, the plaintiffs
may be called upon to divulge and admit about the family arrangement entered
into between the plaintiffs and the defendants 2 to 4, which would clearly reveal
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that the suit property was allotted to 2nd defendant in the family arrangement. The
plaintiffs and the defendants 2 to 4 along with plaintiffs' mother namely
Seethalakshmi are residing in Old Door No.55, Mariamman Koil Street,
Manamadurai. The 1st defendant is residing for more than 35 years in
Manamadurai and was residing in Old Door No.54-B, Mariamman Koil Street,
Manamadurai. The suit property is situated very near to the houses of the 1st and
2nd defendants. Moreover, the 1st plaintiff and the 4th fourth defendant all along
were living with 2nd defendant and only recently they are occasionally staying in
outstations. But admittedly the 2nd plaintiff had been all along living with the
second defendant and permanently residing along with his father and mother in
the Old Door No.55, Mariamman Koil Street, Manamadurai. Hence, the plaintiffs
and the defendants 2 to 4 are fully aware of each other and everyone are aware of
the state of the suit properties and other properties. Only in the above cordial
relationship the first defendant's husband and the second defendant had
negotiations in the presence of the family members of the second defendant and
sale consideration was fixed at Rs.2,35,000/- and agreement of sale dated
10.11.1997 was entered into and thereafter, the possession of the suit property was
handed over to the first defendant. In pursuance of the sale agreement, the second
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defendant received the balance sale consideration of Rs.1,15,000/- on 19.03.1998.
The fact of agreement of sale, the receipt of sale consideration, the execution of
sale receipt, the execution of sale deeds and the subsequent payments made by the
first defendant are known to the plaintiffs, the defendant 3 to 4 and their mother
Seethalakshmi. Practically for all purposes the title passed on to the first
defendant and the first defendant had become absolute owner in respect of the suit
property and had been in possession of the property from 10.11.1997 with
absolute right. However, the formal execution and registration of the sale deed
was being delayed by the second respondent under false pretext. The second
defendant happened to be the neighbour and further the second defendant and his
family members were having cordial terms all these years apart from that, the
second defendant have been giving assurance to the first defendant's husband.
Hence, the first defendant and her husband had utmost confidence and faith upon
the second defendant and believed them to the core. Further, the sale agreement
and the sale receipts were executed in the residence of the second defendant. As
such the execution and registration of sale deeds have been delayed for past
several years. Thereafter, by the intervention of the elderly people known to both
the 1st defendant’s husband and the second defendant and after negotiations, the
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first defendant had agreed to pay further amount for the increase in the value of
the land. The second defendant agreed and came forward to execute the sale deed
after receiving further amount as mentioned in the sale deed dated 14.12.2011. In
fact, the said Seethalakshmi, wife of second defendant is one of the Attestors of
the sale deed. One Mr.Natarajan well known and leading business man at
Manamadurai, who hail from a traditional and respectable family at Madurai also
stood as Attestor of the sale deeds. The wife of the second defendant came to the
Registrar Office and attested as “identifying witness” before the Sub Registrar.
5. Hence, the plaintiffs and defendants 2 to 4 are estopped from questioning
the validity and sanctity of the registered sale deeds. The first defendant is paying
property tax from 1997 onwards to the suit property as well as paying electricity
charges to the property and he had been exercising rights of absolute ownership
and also is in exclusive peaceful position and enjoyment of the property to the
knowledge of everyone. Moreover, in the sale deed the second defendant has
accepted that he had received the amount towards his family expenses and it is not
open to the plaintiffs and the defendants 2 to 4 to question the same and they are
estopped from questioning the same. The second defendant had received the
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amount for his family expenses and the plaintiffs, the defendants 2 to 4 and the
plaintiffs' mother are benefited out of the amounts received on 10.11.1997,
19.03.1998 and 14.12.2011. When the sale deals were executed and registered, the
sale deed is binding on all the parties. The plaintiffs and the defendants 2 to 4 are
permanently residing in the said place all these years and the third defendant who
got married would frequently visit the parent’s place. Therefore, they cannot deny
that they have no knowledge about the sale. Further the allegation that the first
defendant made the second defendant to execute the sale deed is an atrocious,
false and mischievous statement by the plaintiffs. The second defendant is the
absolute owner of the properties and is entitled to deal with the property and he
has no necessity to get authorisation from anybody much less from the plaintiffs
as well as the 3rd and 4th defendants. Further, the allegations that the first
defendant came and tried to take illegal possession of the suit property, the
neighbours intervened and the plaintiffs were threatened with the dire
consequences are all false and invented by the plaintiffs for the purpose of the
suit. As early as 10.11.1997, the second defendant had handed over the possession
of the property to the first defendant and the first defendant had put up
construction in the suit property after purchase of the suit property. All these
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years, first defendant is in exclusive possession of the suit properties. Neither the
plaintiffs nor the defendants 2 to 4 were in possession of the property from
10.11.1997 onwards. The plaintiffs and the defendants 2 to 4 are permanently
residing at Door No.55 (New No. 87) Mariamman Koil Street Manamadurai.
Hence, the address given in the legal notice as well as suit is false and is stated for
the purpose of the suit. For all these reasons, the first defendant prayed to dismiss
the suit.
6. The Trial Court after perusing the evidence and the deposition had
allowed the suit. Aggrieved, over the first defendant had preferred the first appeal
and the same was allowed. Aggrieved over the same, the plaintiffs had preferred
the present Second appeal against the reversal finding.
7. The appellants / plaintiffs had raised the following substantial questions
of law:
“i) Whether the Learned First Appellate Court has erroneously placed the
onus of proof on the plaintiffs relating to the validity of Exs.A1 & A2, the
sale deeds without even adverting that the 1st defendant being the
purchaser under Exs.A1 & A2, the entire onus is on her to substantiate that
the property sold under Exs.A1 & A2 was for the benefit of the family?”
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ii) Has not the Learned First Appellate Court committed a serious error in
law in reversing the well-considered judgment and decree of the Learned
Trial Judge on mere surmises and conjectures relating to the nature and
character of the property as well as the right of the 2nd defendant to
alienate the property in favour of the 1st defendant?
iii) Whether the Learned First Appellate Court has erred in law in not
considering the very recitals of Ex. Bl which itself would suffice to hold the
plea of the 1st defendant that the suit schedule property is the separate
property of the 2nd defendant cannot be sustained?
iv) Whether the findings of the Learned First Appellate Court is vitiated in
law in holding that the court fee paid is not acceptable one and the suit has
been undervalued on complete misconception of facts and law, more
specifically the Learned 1st Appellate Judge has failed to advert to the
scope and ambit of Section 37 of the Court Fees Act in a right
perspective?”
Based on the submission of the first defendant / first respondent herein, the
following additional substantial questions of law are formulated:
“v) Whether the suit is bad for partial partition?
vi) Whether the suit is maintainable when there is no pleading by the
plaintiffs that when there is no legal necessity to sell the property, the sale
is bad?”
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8. Heard Mr.Malaiyendran, the Learned Counsel appearing for the
appellants / plaintiffs, Mr.G.Aravinthan, the Learned Counsel appearing for the
first respondent / first defendant and Mr.P.Banu Prasath, the Learned Counsel
appearing for the respondents 2 to 4 / defendants 2 to 4 and perused the evidence
on records.
9. The substantial question of law in (vi) would affect the very basis of the
suit, hence, the same is taken up for discussion primarily. The said substantial
question of law is that the suit is not maintainable since the plaintiffs have not
pleaded in the suit that the suit property was sold without any legal necessity.
10. It is seen that the plaintiffs had not pleaded in the plaint that the suit is
sold without any legal necessity. In fact, the plaintiffs had stated in the plaint that
the first defendant / purchaser had made the second defendant / father to execute
the sale deed. Except for this sentence, there is no pleading that the property is
sold without any legal necessity. Without pleading, the relief under legal
necessity cannot be granted was the dictum laid down by the Hon’ble Supreme
Court in Civil Appeal No.300 of 1966 vide Judgment dated 05.02.1971 in the case
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of Pandurang Mahadeo Kavade and others Vs. Annaji Balwant Bokil and
others reported in AIR 1971 SC 2228, wherein it is held as under:
“…7. …The Learned Judge held that as the defendants had not raised any
plea that Es.78 was not executed for legal necessity and as such not
binding on them, the plaintiff was justified in not adducing any evidence to
prove that the said document was executed for legal necessity. The Learned
Judge held that Ex.78 was binding on the appellants. …
14. The second contention of the learned Counsel for the appellants does
not require any serious consideration. It is no doubt true that an alienee
from a karta of the joint family will have to establish that the transaction in
his favour is for legal necessity and as such binding on the minor member
of the family. But in this case, both the trial Court as well as the High
Court have concurrently held that the appellants did not plead that Ex. 78
is not binding on them on the ground that it has not been executed by their
father Mahadev for legal necessity. It has been found both by the trial
Court as well as the High Court that in the absence of such a plea it was
unnecessary for the plaintiff to have adduced evidence on this aspect.”
15. Mr. Sarjoo Prasad pointed out that the plaintiff himself has specifically
referred in the plaint to the finding given in Civil Suit No. 80 of 1941 that
Ex. 78 has not been executed for legal necessity and as such was not
binding on the appellants. In view of this specific statement, the Counsel
urged, it was the duty of the plaintiff to have adduced evidence to prove
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that Ex. 78 had been executed by Mahadev for purposes binding on his
sons, the appellants. We are not inclined to accept this contention of the
learned Counsel. The recitals relied on by the appellant have been made
with reference to the plaintiff's plea that the decision in Civil Suit No. 80 of
1941 is not binding on him and that the appellants cannot rely on the same.
In answer to this plea it is significant to note that the appellants did not
raise any contention that Ex. 78 is not valid and binding on them as it
has not been executed for legal necessity. On the other hand, their plea
was that the decision in Civil Suit No. 80 of 1941 and the finding recorded
therein operate as res-judicata. Apart from these circumstances we also
find that no specific issue has been framed on this point. On the other
hand, issue No. 3 to the effect :
Do defendants prove that the sale-deed, dated 9th January, 1926, is not
binding upon them?
clearly cast the burden on the appellants. They never asked for recasting
the issues and they went to trial on the above issue. Here again, both the
trial Court and the High Court have recorded a finding that the sale deed
is binding on the appellants. In view of these circumstances the finding of
the trial Court as well as of the High Court that it was unnecessary for the
plaintiff to lead any evidence on this aspect is correct. In fact we find from
the judgment of the High Court that a request was made by the appellants
to frame an issue on the question of legal necessity and remit the case to
the trial Court. But this request was in our view rightly disallowed.
Therefore, the second contention has to be rejected.”
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11. The aforesaid judgment was relied on by the Learned Single Judge of
High Court of Andhra Pradesh in Voleti Eswara Rao Vs. V.T.Sharat Chandra
Thotraj in Appeal Suit No.1807 of 1993 vide judgment dated 25.02.2014 reported
in AIR 2014 AP 101 and it is held as under:
“23. The Pandurang Mahadeo Kavade (dead) by his legal representative
and others Vs. Annaji Balwant Bokil and others reported in
Manu/Sc/0581/1971 : AIR 1971 SC 2228 the Supreme Court held that
although an alienee from the a Kartha of a Joint Family will have to
establish that the transaction in his favour is for legal necessity and, as
such, binding on the minor members of a family, unless there is a pleading
about lack of legal necessity and an issue framed in that regard by the trial
court, it was unnecessary for the alienee to lead any evidence to prove that
the transaction in question was in fact supported by legal necessity. It held:
(the paragraph of 14 and 15 of the judgment rendered in Pandurang
Mahadeo Kavade’s case was extracted)
24. This proposition of law is not disputed by counsel for 1st respondent.
The counsel for 1stdrespondent has also not placed on record any
judgment taking a contrary view.
25. Therefore, in view of the above decision of the Supreme Court, I am of
the opinion that in the absence of any specific pleading by plaintiff as to
absence of legal necessity for sale of lot Il of plaint 'C' Schedule property
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under Ex. B. 7 and in the absence of an issue framed as to existence of
legal necessity by the trial court in that regard, it was not necessary for D.
23 to lead any evidence as to existence of legal necessity for the sale of this
item of property to her. The court below without noticing the above
decision of the Supreme Court and lack of proper pleading by plaintiff and
absence of issue on the aspect of legal necessity erred in holding that D. 23
failed to prove the existence of legal necessity for Ex. B. 7 transaction.”
As stated supra, in the present case the plaintiffs had not raised any pleading that
the second defendant / father had sold the suit property without any legal
necessity. In such circumstances, as per the judgment stated supra, the first
respondent is not obligated to let in evidence that the suit property is sold based
on the legal necessity. Since there is no pleading, both the Courts below had not
farmed the issue whether the suit was sold for legal necessity? Consequently, as
held in Voleti Eswara Rao’s case the first defendant / purchaser is not bound to let
in evidence that the suit property was sold for legal necessity. Therefore, the
substantial question of law raised in (vi) is answered against the plaintiffs.
12. The substantial question of law in (i) is that the onus to prove that the
property is sold for the legal necessity of the family is on the purchaser of the joint
family property. The plaintiffs are aggrieved, since the First Appellate Court had
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fixed the onus on the plaintiffs to prove that there was legal necessity which is
against the settled law. In Hindu Law, the Hindu father has special right to sell the
property if there is necessity to pay any debt or for any legal purposes. The only
condition is that the debt should not be incurred for immoral or illegal purposes.
The substantial question of law that is raised is who has to prove that the property
was sold only for the legal necessity. The issue of onus was dealt with by several
Courts, High Courts and also the Hon’ble Supreme Court. The Learned Counsel
appearing for the plaintiffs / appellants herein had relied on one such case
rendered in Civil Appeal No.3264 of 2011 vide judgment dated 20.08.2018 in the
case of Kehar Singh and others Vs. Nachittar Kaur and others reported in
Manu/SC/ 0874/2018 wherein it is held as under:
“27. In our considered opinion, a case of legal necessity for sale of
ancestral property by the Karta (Pritam Singh) was therefore made out on
facts. In other words, the defendants were able to discharge the burden
that lay on them (defendants) to prove the existence of legal necessity for
sale of suit land to defendant Nos.2 and 3. The defendants thus satisfied
the test laid down in Hindu Law as explained by Mulla in Article 254(2)
read with Article 241(a) and (g) quoted above.”
From the aforesaid judgment, the issue is settled that the onus is on the purchaser
of the property to prove that the family had debts and it is for legal necessity. At
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least, the purchaser ought to have ascertained that there is legal necessity for the
Karta to sell the property. But this onus would be placed on the purchaser, if there
is pleading by the plaintiffs as held in Pandurang Mahadeo Kavade’s case. In the
present case, the onus is on the first defendant. But as held in Pandurang
Mahadeo Kavade’s case, the plaintiffs have not pleaded legal necessity, hence,
the onus could not be placed on the first defendant.
13. When there is no pleading, onus cannot be placed on the first defendant.
In spite of the same, the first defendant had proved the “legal necessity” which
would be evident from the discussion below.
14. In Ex.A1 and Ex.A2 sale deeds, it has been stated that the property is
sold for the purpose of “family expenses”. The Trial Court had held that except for
this sentence there is no other evidence to prove that the property was sold for
family expenses. But the Learned Counsel appearing for the first defendant in the
written arguments submitted that the PW3, who is the 2 nd plaintiff in the suit, had
admitted in the cross examination that his father had informed him that for the
debts incurred by him, the first defendant had sought to execute sale deed and the
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relevant portion is extracted hereunder:
“th.rh.M.3 tof;fwpQH mwptpg;G mDg;gg;gl;l tpguj;ij vdJ
ngw;NwhHfsplk; ehq;fs; $wtpy;iy. th.rh.M.1 kw;Wk; th.rh.M.2
fpiuag;gj;jpuq;fs; gw;wp th.rh.M.3 tof;fwpQH mwptpg;G
mDg;Gtjw;F xU khjj;jpw;F Kd;Gjhd; vdf;F njhpAk;. 1-k;
gpujpthjpapd; kidtp ,t;tof;F nrhj;ij gad;gLj;Jtij ghHj;J
vdJ jfg;gdhhplk; Nfl;l
; nghOJ jhd; mf;fpiuag; gj;jpuq;fs; gw;wp
vq;fSf;F njhpAk;. jhd; thq;fpa flDf;fhf Nkw;fz;l
fpiuag;gj;jpuq;fis jd;dplk; ,Ue;J vOjp thq;fpf;nfhz;ljhf
vdJ jfg;gdhH $wpdhH.”
Further, the PW3 in the cross examination had admitted that his father, the second
defendant herein had obtained loan in Manamadurai Urban Cooperative Bank and
the same was settled in the year 31.03.2008 for which the Ex.A7 is marked as
evidence. When there is an admission by the 2nd plaintiff in the cross examination
that the second defendant father had informed the 2nd plaintiff about the debts
incurred by him and for such debt the suit property was sold, then it ought to be
taken that the legal necessity is proved by the first defendant / purchaser. When
there is no pleading that there is no legal necessity and there is no contra evidence
from the plaintiffs to prove that there is no legal necessity, then it has to be taken
that the legal necessity is proved. Further, it is substantiated by the Ex.A7 that the
family had debt in the said Cooperative Bank. Therefore, this Court is of the
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considered opinion that based on the admission of the 2nd plaintiff, it is evident
that the family had debts and there was legal necessity to sell the property. Hence,
the Trial Court has erred in coming to the conclusion that the first defendant /
purchaser had failed to prove that the family had debts and sale is for “legal
necessity”.
15. Further in the cross examination the PW3 was asked when was the
marriage of the four siblings (two plaintiffs and the 3rd and 4th defendants) were
celebrated, the PW 3 stated that he was not remembering the dates of marriage.
Surprisingly the PW3 / 2nd plaintiff has deposed that he is not remembering his
own marriage date. When a specific question was put to the PW3 whether his
marriage was celebrated in the year 1997, he had again stated that he does not
remember. Such a statement ought to be taken against the plaintiffs, since it is
obvious that the 2nd plaintiff is lying. Even though the PW3 stated that he was not
remembering the dates of his marriage and also his siblings' marriages, it is
evident that the parents of the plaintiffs had borrowed money for various family
expenses including celebrating marriages for all the four children. Moreover, it is
admitted by the second plaintiff that the family had rice mill but the same was not
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functioning and the second defendant was not doing any work, which would
indicate thta the family was in need of liquidity, hence, the second defendant /
father had borrowed money. Based on the above discussion, it is amply clear that
in order to settle the debts, which is a legal necessity, the second defendant had
sold the property to clear the debts. Therefore, this Court is of the considered
opinion that the first defendant had ascertained that there is legal necessity for the
Karta to sell the property and consequently, had proved the legal necessity and
had discharged the onus placed on the first defendant.
16. If the fact of legal necessity is proved by the purchaser, then the
plaintiffs who hold the property as coparcener along with their father have no
right to challenge the sale. Further, the legal necessity is proved by the purchaser /
first defendant and the plaintiffs have not submitted any contra evidence to prove
that there is no legal necessity, in such circumstances, the plaintiffs have no right
to challenge the sale. In fact in the case of Kehar Singh and others Vs. Nachittar
Kaur and others, the judgment cited supra, which the plaintiffs had relied on, had
held once the purchaser had proved the legal necessity, then it is for the plaintiffs
to prove through evidence that there is no legal necessity. In the present case, the
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plaintiffs have not taken any steps or efforts to prove that there is no legal
necessity. Therefore, the first substantial question of law is answered against the
plaintiffs / appellants herein.
17. The second and third substantial questions of law are similar and hence,
both are taken together and discussed. The plaintiffs submitted that the on mere
surmises and conjectures, the First Appellate Court had come to the conclusion
about the nature and character of the property and the right of the 2nd defendant to
alienate the property in favour of the 1st defendant. Further, the recitals of Ex. Bl
would indicate that the property is joint family property and all the plaintiffs and
defendants have equal rights and it is not a separate property of the 2 nd defendant.
It is seen that the plaintiffs claim that the suit property is joint family property for
which they rely on Ex.B1 which is sale agreement, wherein it is stated that once
the sale consideration is paid, the sale deed shall be executed by the second
defendant and the sons and daughter of the second defendant. But the first
defendant claims that the second defendant was informed about family
arrangement and hence, claims that the suit property is individual property of the
second defendant. The first defendant specifically submitted that after the
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execution of partition deed, dated 22.02.1964, the second defendant had inherited
the property, thereafter, the plaintiffs and defendants 2 to 4 had arrived at family
arrangement and the suit property was allotted to the second defendant. But
absolutely there is no evidence to substantiate the contention of the first
defendant. Further, the plaintiffs deny such family arrangement. In such
circumstances, this Court is of the considered opinion that the plea of the first
defendant regarding family arrangement fails. The suit property still has the
character of joint family property. Having held that the property is joint family
property, the next question arises is the right of the second defendant to sell the
property. This Court had already held that the second defendant had right to sell
the property, if it is for legal necessity. Therefore, the second and third substantial
question of law are held partly in favour of the plaintiffs and partly in favour of
the first defendant.
18. The next substantial question of law is the suit is undervalued and the
plaintiffs had paid incorrect Court fees. In any partition suit, if the parties are in
possession of the property / joint family property then the Court fees payable is
under Section 37(2). But if the parties are not in possession of the property / joint
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family property then the Court fees payable is under Section 37(1) based on
market value. The First Appellate Court had relied on the deposition of the PW1
Ashok and had come to conclusion that the plaintiffs are not in possession of the
suit property for the past twenty years. But the PW1 had admitted that the
plaintiffs and his family members reside in Old Door No.55 and the New Door
No.87. He also admitted that the first defendant had constructed buildings and
was in possession of the suit property for the past 20 years. Further, the PW2 and
PW3 also had admitted in their cross examination that the first defendant has put
up construction and the first defendant was in exclusive possession of the suit
property for the past 20 years. Further, both the PW1 and PW3 admitted that both
the family had cordial relationship for all these years. When the plaintiffs are
aware that the first defendant was in possession of the suit property for the past 20
years, then it is evident that the plaintiffs are not in possession of the suit property.
Then the Court fees payable is under section 37(1) and not under section 37(2).
Therefore, the First Appellate Court had rightly come to the conclusion that the
suit is undervalued and this substantial question of law is answered against the
plaintiffs / appellants.
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19. The next substantial question of law is that the suit if bad for partial
partition. There is no dispute that originally several properties belong to one
Duraisami Chettiar and he had three sons namely Shanmugam Chettiar,
Thaandavam Chettiar and Srinivasa Chettiar. All the four had executed a
registered partition deed dated 22.02.1964. The said Srinivasa Chettiar is the
second defendant herein and the second defendant was allotted six properties and
the suit property is shown as Item No.3 in the properties allotted to the second
defendant in D schedule of properties. The present suit is filed for dividing the
said Item No.3 as 1/5th share each. But the other five items mentioned in the
partition deed are still in the possession of the second defendant father and the
suit is not filed for partition of other properties. It is a settled issue that when
there are several properties and the person claiming partition is also aware of the
existence of such properties, then seeking partition for one property alone is hit by
the principles of partial partition. In the present case, the 1st plaintiff in his cross
examination had admitted that the suit property is shown as Item No.3 in the
partition deed, also admitted that there are five other properties allotted to the
second defendant and the said five properties are still in possession of the second
defendant. The relevant portion of cross examination is extracted hereunder:
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“vdJ jfg;gdhH 1-k; gpujpthjpapd; fztUf;F fpiuak;
nfhLj;j nrhj;jhdJ th.j.rh.M.6-ghfg;gphptpidg; gj;jpuj;jpy;
%d;whtJ ,yf;fr; nrhj;jhf cs;sJ. vdJ jfg;gdhH tpw;wJ
Nghf> th.j.rh.M.6 ghfg;gphptpid gj;jpuj;jpy; vdJ jfg;gdhUf;F
xJf;fg;gl;l kPjk; cs;s Ie;J ,yf;fr; nrhj;Jf;fs; vdJ jfg;gdhH
trk;jhd; cs;sJ”
When the plaintiffs are aware of existence of other properties which are available
for partition but have not included the same in the suit for partition, then the suit
is bad for partial partition and hence, on this ground the suit is liable to be
dismissed. But the Trial Court has held that the first defendant, who is the
purchaser of the property ought to prove that other properties are available for
partition. This Court is of the considered opinion that the Trial Court had terribly
erred in fixing the onus of proof on the purchaser to prove that other properties
are available for partition. Further, the Trial Court had held that the plaintiffs also
plead ignorance of the fact and they are not aware of the fact that other properties
are available for the partition. But the first plaintiff in his cross examination had
admitted that the second defendant father is in possession of the other items of the
property. When there is an admission by the plaintiffs themselves that the second
respondent is in possession of the other properties which were allotted under
partition, then the suit is hit by partial partition.
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20. While discussing about partial partition, the Trial Court has held if a
coparcener files a suit against a third-party purchaser in respect of the property
sold to him, though other coparceners have been added as parties, the real
contestant is the third-party purchaser and it is not necessary to add all the family
properties in such suit. For this proposition the Trial Court has relied on the
judgment dated 08.08.2008 rendered in P.Arumugham and another Vs. P.Bala
Subramaniam and others in A.S.No.981 of 1993 reported in (2008) 7 Mad LJ
1210. In the said judgment, the Learned Single Judge has referred Mulla Hindu
Law (19th edition) and has held as under:
“Whether a suit for partition should comprise all the joint family
properties, in other words, whether the suit should be one for general
partition, or whether it can be one for a partial partition only depends
upon who the parties to the suit are:
(i) The general rule is that where a suit for partition is brought by a
coparcener against the other coparceners, it should embrace the whole
family property. This rule is subject to certain qualifications. Thus, where a
portion of the property is not available for actual partition, as being in the
possession of a mortgagee, or where it is held jointly by the family with a
stranger, a separate suit for partition may be brought in respect of that
portion in the court of the place where that portion is situated.
(ii) The next case is where a coparcener sells his undivided interest in one
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of several properties belonging to the coparcenary, and a suit for partition
is brought by the purchaser of such interest against his vendor and the
other coparceners. In this case, there is a conflict of decisions as to
whether he can sue for partition of that property alone in which he is
interested as a purchaser, or whether he should sue for general partition of
all the family properties. This subject is dealt with in 261(3).
(iii) The third case is where a coparcener sells his undivided interest in one
of several properties belonging to the coparcenary, and a suit for partition
is brought by the other coparceners against the purchaser. As to the rights
of the other coparceners in such a case, see 261(3).
(iv) The last case may be put in the form of an illustration. A and B are
members of a joint family property consists of three houses, X, Y and Z. A
sells his interest in house X to C. B sells his interest in the same house to D.
In such a case, D can sue C for partition of house X, without asking for a
partition of houses Y and Z. A and B, no doubt, must be joined as
defendants; but the real contest in this case is between strangers to the
family, namely, C and D, and there is no reason why such contest should
not be determined without reference to the remaining property of the
family."
69. It is therefore clear from the above excerpts that the view taken by me
that those two houses and the compensation amount even though not
included in the suit properties, the same could be ordered to be included
during the final decree proceedings for effective partition. Accordingly,
point No.(iii) is decided that the suit is not bad for partial partition.”
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The Trial Court has taken the last illustration and has come to the conclusion that
the suit is not hit by partial partition. The last illustration is between two
purchasers who had purchased from two different coparceners. But in the present
case, the suit is filed by two coparceners against other three coparceners along
with a sole purchaser and hence, the said illustration relied on the by the Trial
Court may not applicable to the present case.
21. Further, on referring to Mulla Hindu Law, under 259, the sale of
undivided coparcenary right is dealt with and under 261, the mortgage is dealt
with. Under both 259 and 261, the coparcener's right is protected, at the same
breath, the rights of purchaser is also protected. While protecting the rights of the
purchaser, it is stated the purchaser is entitled to equity relief. Therefore, this
Court is of the considered opinion that the Trial Court has erred in not considering
the equity relief as stated under the Mulla Hindu Law as well as the aforesaid
judgement rendered in the case of P.Arumugham and another Vs. P.Bala
Subramaniam and others
22. While considering the case on equity, the plaintiffs submitted that the
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plaintiffs and the defendants 3 and 4 would be affected by the sale deeds executed
in favour of the first defendant by the second defendant. If this plea is entertained,
the sale deed may not be binding on the plaintiffs and the defendants 3 and 4 but
the sale deed executed by the second defendant / father is binding on the second
defendant and second defendant cannot claim that the sale deed is bad. Moreover,
it is not the case of the plaintiffs that the sale deed is not binding on the second
defendant. In such circumstances, when the second defendant / father had
inherited six properties in the partition deed dated 22.02.1964 and the other
properties are available for partition, if suit for partition is filed in future, then the
present suit property ought to be allotted to the share of the second defendant /
father. In such circumstances, the plaintiffs would not be affected by upholding
the sale deeds, hence, on equity also the plaintiffs are not affected by the sale
deeds executed in favour of the first defendant. In the above circumstances, the
plaintiffs ought to have filed a suit for partition claiming partition for all the six
properties available for partition. Therefore, this Court is of the considered
opinion that the suit is bad for partial partition and the First Appellant Court had
rightly held that the suit is hit by partial partition. Hence, this substantial question
of law is answered in favour of the first defendant.
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23. Further, this Court is bound to record the attitude of the parties
especially the defendants 2 to 4, since the defendants / coparceners are not
contesting the case at all. Even though the plaintiffs state that the 3rd and 4th
defendants are contesting through separate counsel, they have not filed a separate
written statement, have not deposed before the Trial Court and remained ex-parte
in the Trial Court. The 2nd defendant / father, who had sold the property has not
filed any written statement and has not contested the case and he remained ex-
parte in the Trial Court. Finally, in the present case, the sale agreement was
executed, the entire agreed sale consideration was paid and the first defendant was
put in possession of the property long back in the year 1997 itself. Thereafter, the
first defendant has put up construction and is residing in the said property with her
family. It is admitted by the plaintiffs that the both their families have cordial
relationship until the execution of the sale deed, from which it can be inferred that
the first defendant was allowed to put up construction and the plaintiffs are fully
aware of the sale and the enjoyment of the suit property by the first defendant. But
the second defendant had prolonged the execution of the sale deed and the sale
deed was executed after the lapse of 14 years. While executing the sale deed, the
first defendant had paid an extra amount of Rs.4,00,750/- (Rs.6,35,750 – Rs.
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2,35,000) which is over and above the amount agreed in the sale agreement. Both
the families had disagreed to the fixation of additional amount. The plaintiffs and
the defendants would have demanded more from the first defendant. Further, the
PW3 had stated that his parents are aware of the present litigation in his cross
examination. In addition to the above, the second defendant / father was not
contesting case and the lies stated by the PW3 which are stated supra are all
indication that the suit is frivolous suit. Therefore, this Court is of the considered
opinion that the First Appellate Court is right in holding that the suit is vexatious
and speculative litigation.
24. For all the discussions, reasons and observations, the suit is liable to be
dismissed and the First Appellate Court is right in dismissing the suit. All the
substantial questions of law are answered against the plaintiffs / appellants except
second (ii) and third (iii), wherein it is partly held that the property is joint family
property and not individual property of second defendant and hence, the same is
partly held in favour of the plaintiffs / appellants.
25.Thus, the judgment and decree of the First Appellant Court is confirmed
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and the judgment and decree of the Trial Court is set aside. With the above said
observations, the second appeal is disposed of. No costs. Consequently,
connected miscellaneous petition is closed.
17.04.2024
Index : Yes / No
NCC : Yes / No
Tmg
TO:
1. Sessions Judge, Fast Track Mahila Court, Sivagangai,
2. The Sub Court, Manamadurai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
17.04.2024
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