Madras High Court

Muppidathi Konar vs Subbammal on 16 October, 2024

Author: V.Bhavani Subbaroyan

Bench: V.Bhavani Subbaroyan

                                                                                S.A(MD)No.245 of 2004


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED :     16.10.2024

                                                     CORAM

                         THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                            S.A(MD)No.245 of 2004
                                                    and
                                          C.M.P(MD)No.1481 of 2004

                    1.Muppidathi Konar
                    2.Bhoothattha Konar            ... Appellants/Appellants/
                                                         Defendants 2 & 3

                                                   Vs.

                    1.Subbammal
                    2.Kala
                    3.Indirani
                    4.Soundari Ammal
                    5.Chendammal
                    6.Thangaththammal        ... Respondents/Respondents 1, 2 & 4 to 7/
                                                   Plaintiffs 1, 2 & 4 & Defendants 4 to 6


                    Prayer: Second Appeal filed under Section 100 of the Code of Civil
                    Procedure against the judgment and decree, dated 18.06.2002 passed
                    in A.S.No.46 of 1998 on the file of the Sub Court, Ambasamudram,
                    confirming the judgment and decree dated 29.10.1997 passed in
                    O.S.No.330 of 1991 on the file of the Principal District Munsif,
                    Ambasamudram.


                                  For Appellants         : Mr.H.Arumugam

                                  For RR 1 & 3           : Mr.K.Pragadesh Ganapathy
                                                           for Mr.M.Saravanan



                    1/17

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                                                                             S.A(MD)No.245 of 2004



                                                    JUDGMENT

The Judgments and decrees passed in O.S.No.330 of 1991

on the file of the Principal District Munsif, Ambasamudram and in

A.S.No.46 of 1998 on the file of the Sub Court, Ambasamudram, are

being challenged in the present Second Appeal.

2.The respondents 1, 2 & 4 along with one Pappathi herein

as plaintiffs instituted a suit in O.S.No.230 of 1991 on the file of the

trial Court against the defendants for the relief of partition for 1/4th

share in the suit properties.

3.For the sake of convenience, the parties are referred to

as, as described before the trial Court.

4.According to the plaintiffs, the suit schedule properties

belonged to the Hindu Undivided Family consisting of one late.

Pattukonar and the defendants 1 to 3. The first plaintiff is the wife of

the late. Pattukonar and the plaintiffs 2 to 4 are the children of the said

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Pattukonar. The first defendant is the father of the said Pattukonar and

defendants 2 and 3 are the sons and the defendants 4 to 6 are the

daughters of the first defendant. The said Pattukonar died 16 years

before, leaving behind the plaintiffs as his legal heirs. After his demise,

the suit properties are in joint possession and enjoyment of the

plaintiffs and the defendants. With regard to the 1st item of the suit

property, the plaintiffs came to know that the defendants effected a

partition deed dated 16.10.1986, wherein the 1st item was allotted to

the second defendant, which was highly illegal and fraudulent. The

execution of the partition deed without including the plaintiffs is a sham

and nominal one and is not binding on the plaintiffs. It is false to state

that Pattukonar purchased a house property with the help of the first

defendant and separated from the joint family. In fact, the first

defendant never assisted the Pattukonar monetarily and that house

was purchased out of his own income and also by selling the first

plaintiff’s jewels. The 2nd item of the schedule property was purchased

in the name of Karta of the family namely the first defendant herein,

out of common efforts and contributions. With an intent to defraud the

plaintiffs, the first defendant attempted to sell the same to one

Ramakrishan, however, he denied the same. The 3rd item is the

ancestral property and the same was allotted to the first defendant

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branch at the time of effecting partition with his brothers. The

defendants also cut down 10 Palm trees standing in that property and

earned Rs.3000/-. When the plaintiffs requested the defendants for

partition, they evaded them. Hence the plaintiffs sent a legal notice

dated 17.07.1991 for which the defendants also sent a reply dated

23.07.1991 with a false statement. Hence, the plaintiffs have filed the

said suit for the abovestated relief.

5.The defendants 1 to 3 had filed a written statement and

admitted the relationship. Pattukonar had no avocation and sufficient

source of income to purchase a house property. Since Pattukonar is the

eldest son and has a wife & kids, a house property was purchased in

his name by the first defendant. As such, that property is a joint family

property. The suit filed by the plaintiffs excluding that house property

worth about nearly Rs.20,000/-, as if it was purchased by Pattukonar

clearly shows the greedy nature of the plaintiffs. As already a house

property was given to Pattukonar, the plaintiffs have no right to claim

the suit properties. Hence the defendants 1 to 3 made an arrangement

allotting 1st item to the first defendant. Further, the second & fourth

items of properties are self-acquired properties of the first defendant.

The second defendant renovated the house in the 1st item and resided

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there and denied the cause of action and raised objections regarding

court fees and prayed for dismissal of the suit.

6.Before the trial Court, on the side of the plaintiffs, the

first plaintiff was examined as P.W.1 and Exs.A1 to A3 were marked.

On the side of the defendants, the second defendant was examined as

D.W.1 and Ex.B.1 was marked.

7.On the basis of the rival pleadings made on either side,

the trial Court, after framing necessary issues and after evaluating both

the oral and documentary evidence, has decreed the suit.

8.Aggrieved by the Judgment and decree passed by the

trial Court, the defendants 2 and 3 as appellants, had filed an Appeal

Suit in A.S.No.46 of 1998 on the file of the first Appellate Court.

9.The first Appellate Court, after hearing both sides and

upon reappraising the evidence available on record, has dismissed the

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appeal and confirmed the Judgment and decree passed by the trial

Court.

10.Challenging the said Judgments and decrees passed by

the Courts below, the present Second Appeal has been preferred at the

instance of the defendants 2 and 3 as appellants.

11.At the time of admitting the present second appeal, this

Court had framed the following substantial questions of law for

consideration:

'i) Whether the Courts below are correct in holding that the suit items 1, 2 & 4 are joint family properties and granting the decree for partition?

ii) Whether there was independent consideration by the lower Appellate Court on the Judgment of the trial Court in dismissing the appeal preferred by the appellants herein?'

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12.The learned counsel appearing for the

appellants/defendants 2 & 3 would submit that the Courts below have

failed to advert to and consider from a proper perspective the rival

pleadings of the parties and the questions emerging for decision

therefrom and this has vitiated the findings and judgments of the

Courts below; the Courts below have failed to bear in mind the well

settled principle of law that though there may be a presumption that

the Hindu Family is a joint family, there is no presumption that the

properties standing in the name of any of the members of the family

are joint family properties and that it is for the plaintiff to plead and

establish that there was sufficient nucleus or surplus income from the

joint family property to admit the acquisitions; the Courts below failed

to see that there is neither sufficient pleading nor any evidence to

show that there was either joint family nucleus or surplus income from

the ancestral property viz., item No.3 which would admit the

acquisitions of item Nos.1, 2 and 4 after defraying all the family

expenses; the Courts below ought to have seen that there is no

evidence to suggest to item Nos.1, 2 & 4 were acquired either out of

joint family nucleus or out of surplus joint family funds or out of joint

exertions of the co-parcenors and that in the circumstances, the ready

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assumption of the Courts below that item Nos.1, 2 & 4 are also joint

family properties available for division is clearly erroneous and contrary

to settled law; the Courts below ought to have seen that if it could be

construed that item Nos.1, 2 & 4 are joint family properties, then on

the same footing, the house purchased in the name of Pattu Konar is

also joint family property on the very admission of P.W.1 herself, the

reasoning to the contra when item Nos.1, 2 and 4 are held to be joint

family property is clearly erroneous and the Courts below ought to

have seen the mere fact that D.W.1 has purchased a portion of the

vacant site from the first respondent describing the northern property

as the property of the first respondent, would not convert the house

property purchased in the name of Pattu Konar as the private property

of Pattu Konar and the first plaintiff. The Courts below ought to have

seen that Pattu Konar and his branch cannot retain the house property

purchased in the name of Pattu Konar and also claim a share in the suit

1st item and Courts below have erred in decreeing the suit and the

Courts below have erred in placing the burden on the defendants to

show that item Nos.1, 2 and 4 are not joint family properties,

overlooking that it is for the plaintiffs to show by sufficient pleading

and proof that they are purchased out of surplus joint family funds or

joint family nucleus

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13.The learned counsel appearing for the

appellants/defendants 2 and 3 would further submit that there were no

pleadings with respect to the 4th item of the suit property and the

same is not properly described with survey number and extent as per

Order VII Rule 3 of CPC. Hence, a decree cannot be granted in respect

of the 4th schedule property. The court below has failed to consider

that the separate house was purchased in the name of Pattukonar by

the first defendant and he left the joint family. If the plaintiffs claim for

partition of the suit properties, they shall also include the house

property in which they are residing. The Plaintiffs cannot approbate and

reprobate. The plaintiffs did not produce any evidence to show that her

husband Pattukonar purchased the house property from his own

income. As such the Courts below ought to have presumed that the

property in the name of Pattukonar is also a joint family property and

would be subjected to the present partition suit. The courts below

ought to have decided the plaintiff’s case independently instead of

looking into the weakness of the defendant’s case and prayed for

allowing the Second Appeal.

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14.The learned counsel appearing for the respondents 1 &

3/plaintiffs reiterated the averments made in the plaint and the appeal

and submitted that the Courts below had rightly dismissed the suit.

15.Heard the learned counsel appearing for the appellants

and the learned counsel appearing for the respondents 1 & 3 and also

perused the records carefully.

16.According to the plaintiff, the suit schedule properties