Madras High Court

Anusuya Ammal (Died) vs Krishnan on 7 November, 2024

                                                                                 SA.No.1334 of 2007



                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                    RESERVED ON      :     30-10-2024

                                  PRONOUNCED ON      :     07-11-2024

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE M. JOTHIRAMAN

                                                  SA.No.1334 of 2007


                     1. Anusuya Ammal (died)

                     2. Sivagami Ammal

                     (2nd appellant LRS of the deceased as per memo dated 14.09.2011
                     (SR.No.80050) vide dated 23.07.2021 made in SA.No.1334 of 2007

                                                                       … Appellants / plaintiffs
                                                          V.

                     1.Krishnan

                     Varatha Ammal (died)

                     Gopal (died)

                     Dhanapal (died)

                     Chinakulandai (died)

                     2.Karapayi Ammal

                     3.D.Raja Manickam

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                     1/19
                                                                                       SA.No.1334 of 2007

                     4.Dhanabaggiam

                     5.D.Kasi

                     6.Andal

                     7.D.Sekar

                     8.Rohini Ammal

                     9.Ravi

                     10.Mohan

                     11.Kannagi

                     12.Mani

                     13.Ramamurthy

                     14.Chinnaponnu

                     15.Yesoda                                            ... Respondents / defendants

                                  Prayer : This Second Appeal is filed under Section 100 of the

                     Code of Civil Procedure 1908 against the judgment and decree dated

                     11.01.2007 made in AS.No.69 of 2006 on the file of Principal District

                     Court, Vellore confirming the judgment and decree dated 28.10.2005

                     made in OS.No.1579 of 2004 on the file of the Principal District Munsif,

                     Vellore.

                                  For appellant       : M/s.A.S.Manisha
                                                  for Mr.T.R.Rajaraman
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                     2/19
                                                                                        SA.No.1334 of 2007



                                  For Respondents : Mr.B.Harish
                                               for La Law




                                                       JUDGMENT

The instant second appeal is filed at the instance of the plaintiffs.

The respondent herein are the defendants before the trial Court. For the

sake of convenience, the parties will be referred to according to their

litigative status before the trial Court.

The plaintiff case is in brief :-

2. The first plaintiff is the widow and the 2nd plaintiff is the

daughter of Arjuna Gounder, who is the son of one Parama Gounder.

The first defendant is the son and the 2nd defendant is the widow of one

Kuppuswany Gounder and defendants 3 to 5 are brothers, all being sons

of Parama Gounder. Parama Gounder died intestate leaving the above

said five sons and ancestral properties viz., S.No.22/2 – 0.16 cents,

S.No.22/1 – 0.75 cents and S.No.22/4 – 0.85 cents and a Thatached

house.

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2(i) After the death of Parama Gounder his elder son Kuppusamy

Gounder was in enjoyment of the property and affairs of the joint family.

The Kuppuswamy Gounder sold the above said properties for himself

and on behalf of his family members to one Molavu Gounder on

17.12.1934. On the same day, purchased the suit properties from and out

of the sale proceeds and with joint family funds under two sale deeds.

The suit properties are treated as joint family properties of all five

brothers. The first plaintiff's husband died leaving behind the first

plaintiff and the second plaintiff to succeed his share of the property.

The defendants 1 to 5 celebrated the marriage of the 2 nd plaintiff in the

year 1979. The suit properties were not divided, Kuppusamy Gounder

died in the year 1966, leaving behind the defendants 1 and 2 as his heirs.

The plaintiffs have issued legal notice dated 05.03.1985 for claiming

partition.

The case of the defendants in brief :-

3. The lands in S.No.22/2 – 0.16 cents, S.No.22/1 – 0.75 cents and

S.No.22/4 – 0.85 cents and a Thatached house in Killpallipattu village

are the separate properties of Kuppusamy Gounder in the year 1934, he

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sold the properties to Molavu Gounder and purported to execute the sale

deed as Guardian of younger brothers. On 17.12.1934, Kuppusamy

Gounder purchased items 1 to 3 of the suit properties under two sale

deeds, but no part of consideration for this acquisition was paid from and

out of the sale proceeds of the said Mulavu Gounder and consideration

for purchase was made out of executing promissory deed, mortgage deed

and by undertaking to pay debt due of the vendor Lakshmana Gounder to

Palani Kuppu Chettiar. Item 4 and 5 of the suit properties were

purchased by Kuppusamy Gounder from exclusive funds earned by him.

The brothers were not living together and they were living separately and

there is no joint family nucleus. The defendants 2 to 5 are in possession

of the suit property of the defendants, all the defendants have made

improvements in the suit properties and they have all perfected title for

open, continuous and adverse possession.

4. Based on the pleadings, the trial Court has framed the following

issues :-

(i)Whether the plaintiff is entitled for

preliminary decree for partition as prayed for?

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(ii)Whether the suit properties are the

separate properties of Kuppusamy Gounder?

(iii)Whether the defendants have perfected to

their title to the suit properties by adverse

possession?

(iv)Whether the suit is not valid properly?

(v)Whether the suit is not properly valued and

the Court fee paid is incorrect?

(vi)To what relief the plaintiff is entitled?

5. Before the trial Court on the side of the plaintiff, the first

plaintiff herself examined as PW1 and Ex.A1 to 12 were marked. On the

side of the defendants, the first defendant himself examined as DW1 and

Ex.B1 to B68 were marked.

Findings of both Courts below :-

6. The trial Court after having considered the oral and

documentary evidences and the submissions on either side has finding

that it is evident from Ex.A11 sale deed that it has been mentioned the

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father name of Parama Gounder as Uthandi Gounder and in Ex.A12 sale

deed the father name of Parama Gounder is shown as Chinnaiya

Gounder. Thus, the father name of Parama Gounder as mentioned in

Ex.A11 and Ex.A12 are different persons and no persons connected with

the sale deed have been examined by the plaintiff side. From Ex.B16 to

B45, it is evident that the father of the Parama Gounder name is

Chinnaiya Gounder. The plaintiffs have failed to prove that S.Nos.22/1

and 22/2 are joint family properties and also failed to prove the income

derived from S.No.22/4 and the same cannot be considered as joint

family properties. It is also finding that the defendant have not filed any

documents to prove that they are in possession of the suit properties and

in the absence of the any documentary evidence, it is not safe to decide

whether the defendants have perfected title on suit properties and

dismissed the suit. Being not satisfied with the decree and judgment of

the trial Court, the plaintiffs have preferred the first appeal. The first

appellate Court on reappraising of evidences and documents comes to a

conclusion that there is no infirmity in the findings rendered by the trial

Court and dismissed the appeal. Aggrieved with the concurrent findings

of the Courts below, the plaintiffs are before this Court by way of this

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Second Appeal.

7. At the time of admission, this Court has formulated the

following substantial question of law :-

“(i) Whether the Courts below right in non- suit the plaintiffs especially when the existence of joint family properties have been established and no plea of ouster is made by the defendant?

8. The learned counsel appearing for the plaintiffs/appellants

would submit that the first appellate Court failed to consider that the

evidence of the plaintiffs, which clearly proves that the plaintiffs

predecessor in title viz., Parama Gounder had ancestral property and the

eldest son of Parama Gounder viz., Kuppusamy Gounder looked after the

properties, after the demise of Parama Gounder. It is also failed to

consider that the first defendant as DW1 categorically admitted the

existence of the joint family property and in the said circumstances

unless a plea of ouster is made on the side of the defendants, the plaintiff

cannot be non suited. In the absence of any evidence on the side of the

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defendants to establish that the properties were purchased out of self

earning of deceased Kuppusamy Gounder, it cannot be held that the

properties are self acquired properties of deceased Kuppusamy Gounder

therefore the findings are erroneous and unsustainable. It was also

contended that when the defendants 1 and 2 have executed three

settlement deeds in favour of the defendants 3 to 5, clearly go to show

that the properties are the joint family properties, when the defendants

admitted the existences of joint family properties and further purchase of

the property immediately after selling one of the joint family properties,

no other conclusions can be arrived at except that the properties

purchased are joint family properties. To strengthen her contention, the

learned counsel for the appellant has relied on the judgment of the

Hon'ble Apex Court reported in 2015 (11) SCC 269 – Shasidhar and

others V. Ashwini Uma Mathod and another, wherein it has been held

that “in a suit filed by cosharer, coparcener, coowner or joint owner as

the case may be, for partition and separate possession of his/her share,

it is necessary for the Court to examine in the first instance, the nature

and character of the properties in suit such as who was the original

owner of the suit properties, how and by which source acquired such

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properties. Secondly, how the devolution of interest in the property took

place.”

9. Per contra, the learned counsel appearing for the

defendants/respondents would submit that suit properties are not

ancestral properties. All the properties were acquired by Kuppusamy

Gounder on his own earnings or by borrowing and no part of the

purchase money was provided by any family fund. The deceased

Kuppusamy Gounder had cherished to desire to give some properties to

defendants 3 to 5. But as he could not himself execute and register a

document, he directed his wife and son should give exgratia a share in

these properties to his surviving brothers. He would submit that in

pursuance of the said directions of the deceased Kuppusamy Gounder,

out of love and affection and as a provision for them, defendants 1 and 2

conveyed a share in the properties to defendants 3 to 5 by three separate

registered settlement deed in the year 1970 viz., Ex.B61 to Ex.B63.

Concurrent factual findings rendered by both the Courts below cannot be

interfered by this Court by invoking Section 100 of C.P.C.

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10. This Court has given anxious consideration on the submissions

made by either side and perused the materials available on record.

11. According to the plaintiffs that Parama Gounder is the owner

of the lands in S.Nos.22/1, 22/2, 22/4 and thatched house as ancestral

property and his elder son Kuppusamy Gounder sold these items on

17.12.1934 to Molavu Gounder and purchased the item Nos.1 to 3 of the

suit properties on the same day. In order to prove the fact that suit

properties are ancestral properties, the plaintiffs have relied upon Ex.A11

sale deed dated 19.02.1923 and Ex.A12 sale deed dated 30.04.1920. In

Ex.A11, the father of Parama Gounder is mentioned as Uthandi Gounder,

whereas in Ex.A12, father of Parama Gounder is mentioned as Chinnaiya

Gounder. Admittedly, no persons connected with sale deeds have been

examined by the plaintiffs side.

12. PW1 in her cross examination has deposed that she does not

know the father's name of the Parama Gounder. Ex.B16 to Ex.B45 are

pronotes which shows that father of Parama Gounder name is Chinnaiya

Gounder. It is seen from Ex.A12 alone mentioned father of Parama

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Gounder is Chinnaiya Gounder, it relates to S.No.22/2. Admittedly,

under Ex.A4 sale deed dated 17.12.1934 the properties in S.Nos.22/1,

22/2 and 22/4 have been sold.

13. Ex.B1 sale deed recitals shows that the consideration of the

sale was paid on the debts due of vendors to one Palani Kuppu Chettiar

and no amount was received in cash. Though sale deed had been

executed on 17.12.1934 and the same has been registered only on

19.02.1935. A perusal of Ex.B3 sale deed dated 17.12.1934 shows that

Kuppusamy Gounder has purchased a part of items 1 to 3 of suit

properties from Chinnaiya Gounder for Rs.620/- and the same was paid

in cash and by execution of pronotes in favour of the vendor for Rs.100/-.

Ex.B3 executed on 17.12.1934 has been registered only on 23.02.1935.

Ex.B1 and Ex.B3 though executed on 17.12.1934 and they have been

registered only in the month of February 1935 and the consideration

amount have not though actually paid by Kuppusamy Gounder. A

perusal of Ex.B3 and Ex.B4, shows that Parama Gounder had debts and

Kuppusamy Gounder discharged the same. When a property stands in

the name of a member of the joint family and if the family possess joint

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family property, the plaintiff must prove that the joint family properties

were yielding income to acquire more properties. The plaintiffs have not

produced any documents to prove that S.Nos.22/2 lands have fetched

certain amount of income.

14. PW1 admits in her cross examination that her husband

purchased properties in his name and all the brothers have purchased

properties in their own names. According to the plaintiff, all the brothers

constituted joint family.

15. The fact that the plaintiff's husband purchased properties in his

own name, but the plaintiff's have not included the same in the schedule

of property and non inclusion of other properties purchased by his

brothers in the Schedule of properties raises serious question whether

there was joint family as claimed by the plaintiff. If there has been joint

family property as alleged by the plaintiff, there cannot be purchase of

separate properties by the brothers in their own names. Ex.B61 to

Ex.B63 are the settlement deeds of the year 1970, executed in favour of

Dhanapal Gounder, Gopal Gounder and Chinnakulandai Gounder

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respectively, in those documents it has been stated that the suit properties

absolutely belong to Kuppusamy Gounder and he had told his wife and

sons to settle the properties to his brothers out of love and affection.

16. A perusal of Ex.B64 mortgaged deed dated 16.02.1974 and

Ex.B65 sale deed dated 27.09.1981 shows that one Dhanapal Gounder

and Chinnkulandai Gounder have been dealt with the properties, which

have been settled to them by settlement deeds by mortgaging the

properties and sale proceeds were used for purchase of suit properties.

17. When property is purchased from and out of the joint family

nucleus in the name of a member of coparcener, such property should be

treated to be the joint family property. In this case, there is no evidence

relating to any joint family nucleus.

18. The first plaintiff has been married in the year 1995 and she

has no personal knowledge as to what was happened or that there was

any surplus income for the joint family or there was any debt of the joint

family. Except for the mere production of the sale deeds, the plaintiffs

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have not let in proper evidence to prove that the suit properties were

purchased out of joint family nucleus.

19. It is well settled law that concurrent findings of the Courts

below cannot be interfered by the High Court in exercise of its

jurisdiction under Section 100 of C.P.C. The power of the High Court to

interfere in second appeal under section 100 C.P.C. is limited solely to

decide a substantial question of law.

20. It is relevant to refer to the judgment reported in

C.Doddanarayana Reddy (Dead) by LRs & Ors. v. C Jayarama

Reddy (Dead) by LRs & Ors. AIR 2020 SC 1912 has held as under:

"25. The question as to whether a substantial

question of law arises, has been a subject matter of

interpretation by this Court. In the judgment reported

as Karnataka Board of Wakf v. Anjuman-E-Ismail

Madris-Un-Niswan - (1999) 6 SCC 343, it was held

that findings of the fact ncould not have been

interfered within the second appeal. This Court held

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as under:

12.This Court had repeatedly held that the power

of the High Court to interfere in second appeal

Under Section 100 Code of Civil Procedure is

limited solely to decide a substantial question of

law, if at all the same arises in the case. It has

deprecated the practice of the High Court

routinely interfering in pure findings of fact

reached by the courts below without coming to the

conclusion that the said finding of fact is either

perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu -

1996 3 SCC 392), this Court held:

It is now well settled that concurrent

findings of fact of trial court and first appellate

court cannot be interfered with by the High Court

in exercise of its jurisdiction Under Section 100 of

Code of Civil Procedure. The Single Judge of the

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High Court totally misconceived his jurisdiction

in deciding the second appeal Under Section 100

of the Code in the way he did.

14. In Navaneethammal v. Arjuna Chetty –

1996 6 SCC 166), this Court held: Interference with

the concurrent findings of the courts below by the

High Court Under Section 100 Code of Civil

Procedure must be avoided unless warranted by

compelling reasons. In any case, the High Court is not

expected to reappreciate the evidence just to replace

the findings of the lower courts. ... Even assuming that

another view is possible on a re-appreciation of the

same evidence, that should not have been done by the

High Court as it cannot be said that the view taken by

the first appellate court was based on no material."