Madras High Court
Velayudham vs Murugaiyan ... 1St on 7 January, 2025
S.A.No.182 of 20 20
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 25 / 09 / 2024
JUDGMENT PRONOUNCED ON : 07 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.182 OF 2020
Velayudham ... Appellant /
1st Respondent /
1st Defendant
Vs.
1.Murugaiyan ... 1st Respondent /
Appellant /
Plaintiff
2.Manickam
3.Manonmani
4.Poongothai
5.Ambiga
6.Anjalatchi
7.Malliga
R.Jegathambal (Died) ... Respondents 2 to 9 /
Respondents 2 to 9 /
Defendants 2 to 8
8.Dhanasingh
9.Sadhasivam
10.Suresh
11.Tamilarasi ... Respondents 8 to 11 /
Respondents 9 to 12 /
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S.A.No.182 of 20 20
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
December 5, 2019 made in A.S.No.13 of 2016 by the learned Principal
Sub Judge at Puducherry, partly allowing the appeal and modifying the
Judgment and Decree dated July 5, 2016 made in O.S.No.966 of 2005 by
the learned I Additional District Munsif, Puducherry.
For Appellant : Mr.Krishnappan
Senior Counsel
for M/s.Swarnalatha Ramachandran
For Respondent-1 : Mr.J.Kumaran
For Respondent-3 : Mr.M.Mohan Raj
For Respondents 8-11 : Mr.D.Senthil Kumar
For Respondents
2 and 4 to 7 : No Appearance
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated December 5, 2019 passed in A.S.No.13 of 2016 by the
'Principal Sub Court at Puducherry' ['First Appellate Court' for brevity],
whereby the Judgment and Decree dated July 5, 2016 passed in
O.S.No.966 of 2005 by the 'I Additional District Munsif Court,
Puducherry' ['Trial Court' for brevity] was partly modified.
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2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. One Ramasamy has three sons, namely the plaintiff, first
defendant and second defendant, as well as five daughters. In the plaint, it
is averred that, as per the then prevailing Customary Hindu Law in
Pondicherry, Ramasamy and his three sons constituted ‘co-propriete
familiale’, wherein any acquisition made by any member thereof, is
deemed to be purchased by the father and belonging to the family. As
such, some items of the Suit Properties were purchased in the name of
first defendant and enjoyed in common.
3.1. Father – Ramasamy passed away on March 6, 2000. With
the advent of Section 4 of the Hindu Succession Act, 1956 ['H.S.Act' for
short], the Customary Hindu Law ceased to exist and all Class-I legal
heirs became entitled to property. While so, the five daughters of
Ramasamy virtually gave up their shares in consideration of performance
of their marriage. Hence, only the sons are entitled to share in the Suit
Properties. As such, the plaintiff is entitled to 1/3rd share in the Suit
Properties.
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3.2. In respect of Item No.9 of Suit Properties, the plaintiff
was constrained to file a Suit in O.S.No.386 of 2000, as the defendants
fabricated a Release Deed trying to usurp his share in the Suit Properties.
The plaintiff had reserved his right to file a Suit for partition later in time,
in that Suit.
3.3. The defendants are hindering the plaintiff from involving
in the agricultural operations in Suit Properties and have not provided him
his share in the profits arising therefrom for the past three years (from the
date of Suit). Further, the defendants did not come forward for an
amicable partition. Hence, the Suit for partition of his 1/3rd share, for past
mesne profits of Rs.1,80,000/-, for determining future mesne profits by
appointment of Advocate Commissioner and for other reliefs.
DEFENDANT NOS.1 AND 2’S CASE
4. Sum and substance of the written statement filed by the
defendants 1 and 2 is that Ramasamy Gounder, the father of the plaintiff
and defendants 1 to 7 possessed 1 Kani 25 Kuzhies of agricultural land,
out of which, 50 Kuzhies were wet land and the remaining 75 Kuzhies
were rain fed dry land. Ramasamy Gounder passed away intestate leaving
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behind his wife – Jagathambal, five daughters and three sons, as his legal
representatives. According to the defendants 1 and 2, in Pondicherry, the
concept of ancestral property and self-acquired property does not exist.
The daughters of Ramasamy Gounder are also entitled to share in the Suit
Properties. The plaintiff is entitled to 1/9 share in the properties left by
Ramasamy Gounder along with the debts incurred not only for purchasing
properties and cultivation, but also for the marriage of five sisters.
4.1. The plaintiff is younger to the 1st defendant by 11 years
and the 2nd defendant is younger to him by 16 years. Ramasamy Gounder
met with a road accident while driving a Bullock Cart in 1974 and
suffered multiple fractures which disabled him from pursuing agricultural
operations. Hence, the 1st defendant, the eldest son who passed S.S.L.C.
Examination in 1975, was persuaded by his father to discontinue his
education and take up cultivation of lands. Besides cultivation, the 1st
defendant also did brick-kiln business separately by taking lands on lease
in various villages far from the Suit village. Using the income therefrom
as well as with the help of loans, the first defendant purchased 8 Acres of
land and two house sites and performed the marriage of all the five sisters
as well. To discharge the loans, he sold an extent of 5 acres of land and an
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extent of 10 Kuzhies of land. Accordingly, the defendants 1 and 2 sought
to dismiss the Suit.
5. The defendants 3 to 8 in their written statement affirmed
the contentions raised by the defendants 1 and 2 in their written statement
and also stated that the description of properties is confusing in nature
and that the separate properties of the 8th defendant are also included in
the Suit. The father of both the plaintiff and the defendants owned only 1
Acre Punja land and ½ Kani Nanja land, and the income therefrom was
meagre and not sufficient to run the family. Item Nos.23 to 25 of the Suit
Properties were purchased by the 8th defendant out of the income from her
agricultural work and milk vending business. Hence, the plaintiff and
other defendants have no right in it. Further, it is stated that the 1st
defendant from the income derived from his brick-kiln business and
casuarina business, spent huge amount for his sisters’ marriages, medical
expenses and purchased various items of Suit Properties as well. The
plaintiff has no right over those properties and he is entitled to only 1/9
share in his father's properties. Further, the plaintiff is not entitled to
mesne profits. Further, the plaintiff has not valued the Suit properly and
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has not paid proper Court-Fee. Accordingly, the Suit is liable to be
dismissed.
TRIAL COURT
6. At trial, plaintiff examined himself as P.W.1, and Ex-A.1 to
Ex-A.8 were marked on the side of the plaintiff. On the side of the
defendants, the 1st defendant – Velayutham was examined as D.W.1, 8th
defendant was examined as D.W.2, one Elumalai was examined as D.W.3,
one Kumar was examined as D.W.4, 5th defendant was examined as
D.W.5 and Ex-B.1 to Ex-B.8 were marked.
7. Upon hearing both sides and considering the evidence
available on record, the Trial Court arrived at the findings that the
plaintiff failed to establish surplus income from joint family properties;
that the first defendant established that he has a brick-kiln business and he
purchased Item Nos.1, 2, 4, 10, 12 and 22 of the Suit Properties through
the income therefrom; and that there is no sufficient evidence available on
record to conclude that Item Nos.1, 2, 4, 10, 12 and 22 bears the character
of joint family properties. Further, during the pendency of the Suit, the 8 th
defendant died intestate. Accordingly, the Trial Court decreed the Suit
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partly and passed preliminary Decree directing division of Item Nos.3, 5
to 9, 11, 13 to 21 and 23 to 25 of Suit Properties into 8 equal shares and
allot one such share to the plaintiff. The Trial Court dismissed the Suit for
partition with regard to Item Nos.1, 2, 4, 10, 12 and 22 and also dismissed
the Suit for past and future mesne profits. The Trial Court further directed
the plaintiff to pay Court-Fee of Rs.4,700.5/- and created charge for the
above sum over his said 1/8th share, since the plaintiff had filed the Suit as
an indigent person.
FIRST APPELLATE COURT
8. Feeling aggrieved, the plaintiff preferred an appeal before
the First Appellate Court, which after hearing both sides and perusing the
documents available on record, partly allowed the appeal holding that Ex-
A.7 – Revenue records prove that an extent of 2.41 Acre was owned as
joint family properties; that there is no proof that the first defendant was
having separate income; that the first defendant as Kartha of the joint
family purchased Item Nos.1, 2, 4, and 22 of the Suit Properties; that there
is no proof that Item No.12 of the Suit Properties belong to the joint
family; that Item No.10 was purchased under Ex-A.5 – Sale Deed on
December 28, 1992 and sold under Ex-A.6 – Sale Deed on February 12,
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2001; that Ex-A.6 Sale Deed was executed by first defendant as Kartha of
the joint family and the same is binding on the plaintiff. Accordingly, First
Appellate Court concluded that the plaintiff is entitled to a Preliminary
Decree for 1/8 share in Item Nos.1, 2, 4 and 22 of the Suit Properties in
addition to Item Nos.3, 5 to 9, 11, 13 to 21, 23 to 25 of the Suit Properties
granted by the Trial Court with mesne profits, and dismissed the appeal
with regard to Item Nos.10 and 12 of the Suit Properties. To the above
extent, the First Appellate Court modified the Judgment and Decree
passed by the Trial Court.
SECOND APPEAL
9. Feeling aggrieved, the 1st defendant has preferred this
Second Appeal which was admitted by this Court on February 19, 2020
on the following Substantial Questions of Law:
'a) Whether the Appellate Court is right in holding that the 1st
defendant will have to prove the source of income for purchase
of the property?
b) The Appellate Court has failed to consider that the duty of the
plaintiff to establish that there is surplus joint family nucleus
which enable the first defendant to acquire the property and
only if such practice is established then only the burden will be
shifted to the 1st defendant to prove the property that he
purchased the property out of his own income?'
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ARGUMENTS
10. Mr.Krishnappan, learned Senior Counsel for the appellant
/ first defendant would argue that the First Appellate Court failed to
consider the evidence and documents in proper perspective. The burden is
upon the plaintiff to prove that there were joint family surplus income to
purchase the properties covered under Ex-A.1, and Ex-A.3 to Ex-A.5,
however, the plaintiff did not discharge his burden of proof. In the said
circumstances, the First Appellate Court, erroneously concluded that the
plaintiff proved the surplus joint family income based on Ex-A.7 -
Revenue records. He would further submit that the 1st defendant was
doing brick-kiln business and thereby, earned considerable amount.
Through the income derived from brick-kiln business, the 1st defendant
purchased the properties covered under Ex-A.1, and Ex-A.3 to Ex-A.5
and hence, they are his separate properties. Accordingly, he prayed to
allow the Second Appeal.
11. Mr.M.Mohanraj, learned Counsel for the Respondent
No.3 and Mr.D.Senthil Kumar, learned Counsel for the respondents 8 to
11 would adopt the arguments advanced by the learned Senior Counsel
for the appellant / first defendant.
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12. Per contra, Mr.J.Kumaran, learned Counsel for the 1st
respondent / plaintiff would argue that the existence of joint family is
admitted. Ex-A.7 - Revenue records would clearly prove the existence of
joint family properties. Since the plaintiff proved the existence of joint
family and its properties, the plaintiff discharged his burden. Now, the
onus shifts to the 1st defendant. The 1st defendant did not produce any
document to show that he was doing brick-kiln business and thereby,
earning a considerable amount. In the absence of proof, law presumes that
the properties covered under Ex-A.1 and Ex-A.3 to Ex-A.5 were
purchased in and out of the joint family income. Hence, the Suit
Properties are all joint family properties in which the plaintiff is entitled
to lawful share. The First Appellate Court failed consider that Ex-A.6 -
Sale Deed was executed during the pendency of the Original Suit. The
First Appellate Court and the Trial Court ought to have rendered a finding
that Ex-A.6 – Sale Deed would not bind the plaintiff's share. Accordingly,
he prayed to dismiss the Second Appeal.
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DISCUSSION
13. This Court has considered the submissions made on either
side and perused the evidence available on record in light of the
Substantial Questions of Law.
14. The first question that has to be decided in this appeal is
whether the H.S.Act would be applicable to the case on hand or not.
15. According to the plaintiff, Customary Hindu Law
prevailing in Pondicherry would apply and as per Customary Hindu Law,
the plaintiff and the defendants 1 and 2 alone are entitled to share in the
Suit Properties and the daughters, who were already married are not
entitled to the Suit Properties. If it is so, the burden is upon the plaintiff to
prove that the plaintiff's family had renounced Hindu law. Whether the
plaintiff's family members are renouncants or not is a question to be
decided based on the pleadings and facts.
16. In this case, though the plaintiff pleaded that the
Customary Hindu Law which was in vogue in Pondicherry would be the
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applicable law, he miserably failed to prove the same. Moreover, in the
plaint cause title itself, it is stated that the plaintiff and the defendants are
Hindus. Further, in the later part of the plaint, he has pleaded that in view
of Section 4 of the H.S.Act, all the Class-I legal heirs would be entitled to
property. Hence, this Court is of the view that the plaintiff failed to prove
that his family renounced Hindu law.
17. It is apposite to mention here that in the Judgment of this
Court in M.Kadirvelu Vs. G.Santhanalakshmi, reported in (2016) 4 MLJ
562, it has been held that the question as to whether a person is a
renouncant or not is a question of fact, which should have been pleaded
and proved.
18. Further, this Court in Gowri Vs. Subbu Mudaliar,
reported in 2017 (4) CTC 503 has held as follows:
“34.This Court having regard to the fact that the
judgment of the Division Bench of this Court relied upon in
Krishnamurthy v. Sitaram Gounder, 2002 (3) Law Weekly 669
wherein the parties themselves conceded thereby Customary
Hindu Law not governed by the Mitakshara Hindu Law as
decided by both Division Benches. Similarly the judgment of
the another Division Bench reported in Viswanathan v.
Savarimuthurajan, 2004 (3) CTC 81, wherein the Customary
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Law was applicable only to the Christian Law governed to the
Christians are customary as stood prior to the Hindu
Succession Act. Both the judgments would not be useful to
decide the question of law as to whether the Pondicherry
(Extension) Laws Act 1963 prevail over the Hindu Succession
Act. Whereas the Judgment of the Division Bench in Pauline
Luca v. Jerome Pascal, AIR 1977 Mad. 270 and T.S.Sadagopan
(Deceased) v. T.N.K.Ramanujam, 1993 (2) MLJ 481 of this
Court and the judgment of the learned single Judge in
M.Kadirvelu v. G.Santhanalakshmi 2016 (2) MWN (Civil) 449 :
2016 (4) MLJ 562, appears to be correct law with regard to the
applicability of the Act. Further, the Legislators also in their
wisdom has clearly carved out only exception to renouncants. If
the entire Hindus who are the native of Pondicherry are
governed by the Customary Law as contended by the learned
Senior Counsel, the Legislators would not have been even
extended the Hindu Succession Act to the Pondicherry.
35.The contention of the learned Senior Counsel that
the Hindus residing in Pondicherry are governed by the
Customary Hindu law cannot be accepted for another simple
reason, that Act 39/2005 Hindu Succession Act was enacted by
giving equal status to the daughters on par with the sons in a
coparcenary system. If the contention of the learned Senior
Counsel is accepted, the very purpose of bringing the Act
39/2005 giving equal status to the daughters on par with the
sons in joint Hindu family itself would be defeated.
36.Therefore, this Court is of the view that in view of
Section 4 of the Hindu Succession Act, which is overriding
effect of all the customs Hindu Succession Act alone apply to
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the Hindus residing in the Pondicherry except Renoncants, who
renounced their Personal status and adopted French Law. . . .”
19. As stated supra, the plaintiff failed to establish that he
and his family members are renouncants. Both the Courts have
concurrently held that the H.S.Act would be the applicable law to the case
on hand and the same does not require any interference by this Court.
20. The next question is as to whether the properties covered
under Ex-A.1 and Ex-A.3 to Ex-A.5 are separate properties of the 1st
defendant or not.
21. In this case, the plaintiff’s family lived as a joint family
whose only source of income was agriculture. The plaintiff is younger to
the 1st defendant by 11 years and the 2nd defendant is younger to him by
16 years. Subsequently, their father met with an accident in 1974 and
hence, the first defendant as the eldest son took up cultivation and began
managing the joint family properties. The plaintiff married a girl without
the consent of his family members in 1996 and hence, he was kept away
from the joint family. The aforementioned facts are admitted and there is
no dispute with them. Ex-A.7 – Revenue records shows an extent of 2
Acres 41 Cents as joint family holdings.
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22. According to the plaintiff, the properties covered under
Ex-A.1 and Ex-A.3 to Ex-A.5 were purchased out of the joint family
nucleus. According to the defendants, there is no surplus income from
joint family properties. The defendants’ case is that the 1st defendant was
doing brick-kiln business and thereby earned considerable amount.
However, there is no piece of evidence available on record to prove the
same. In the absence of proof, considering the facts and circumstances,
since the existence of joint family is admitted, this Court is of the view
that the properties covered under Ex-A.1 and Ex-A.3 to Ex-A.5 were
purchased with the aid of joint family properties and out of joint exertions
of the joint family members. It is apposite to extract hereunder the
relevant portion of the written statement filed by the defendants 1 and 2
wherein they admitted the existence of joint family, its properties and
income therefrom:
“11. This defendants submit that they had no other
source of income except from the joint family property to make
part payment to various loans and the first defendant also
spent money from brick-kiln business. This defendant submits
that the borrowing of various loans and the subsequent
discharge both part-payment and full payment to the various
creditors has the approval of all the members of the joint
family i.e. 8 out of 9 heirs and it is the plaintiff, who is
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embarrassing the defendants and their mother by filing this
vexatious suit as though the defendants denied the plaintiff his
1/9th share in the joint family property, and his liability to
shoulder the responsibility of discharging the loan
proportionately.”
23. It is settled law that admission made in the pleadings is a
judicial admission admissible under Section 58 of Indian Evidence Act,
1872 and bears more evidentiary value. The First Appellate Court has
rightly come to the conclusion that the Suit Properties are joint family
properties. There is no need to interfere with the same.
24. Further, the First Appellate Court came to the conclusion
that the 1st defendant as a joint family Manager / Karta sold 10th item of
Suit Properties vide Ex-A.6 - Sale Deed pending the Original Suit. He had
purchased the same in his name vide Ex-A.5 - Sale Deed. The 1st
defendant has every right to dispose of the said property in the interest of
the joint family. This Court is of the considered view that Ex-A.6 - Sale
Deed was executed to clear the family debts obtained to meet the marriage
expenses of the five sisters of first defendant and plaintiff. The 1st
defendant as a Karta is entitled to sell a portion of the joint family
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properties for the welfare and benefit of the joint family. Except the
plaintiff, other defendants did not raise objection / question about the
execution of Ex-A.6 - Sale Deed. Though Ex-A.6 - Sale Deed has been
executed during pendency of the Original Suit, considering the facts and
circumstances of the case and also considering the fact that the marriages
for the sisters were performed by the 1st defendant as Karta of the joint
family, this Court is of the considered view that Ex-A.6 - Sale Deed was
executed for family necessity. Hence, the findings of the First Appellate
Court with regard to execution of Ex-A.6 - Sale Deed is also correct and
there is no need to interfere with it. Moreover, the plaintiff did not prefer
any appeal or cross-objection over the Judgment and Decree of the First
Appellate Court.
25. The First Appellate Court rightly held that the loans
borrowed under Ex-B.1 to Ex-B.8 were for the benefit of the joint family.
Further, as far as Item Nos.23 to 25 are concerned, they stand in the name
of the mother of the plaintiff and defendants 1 and 2, who died intestate
during pendency of the Original Suit. There is no dispute with regard to
the said fact. Hence, her shares shall be distributed among her legal heirs
[See Phoolchand -vs- Gopal Lal, reported in 1967 SCC OnLine SC 266].
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Further, the First Appellate Court found that the plaintiff as well as the
defendants 1 and 2, did not prove that Item No.12 of the Suit Properties
belong to the joint family. It is true that there is no document available on
record to prove that Item No.12 of the Suit Properties belong to the joint
family. However, from the oral evidence adduced on either side, it is
discernible that Item No.12 belongs to the joint family. In such
circumstances, this Court is of the considered view that there is no
impediment to pass a Preliminary Decree in respect of Item No.12 of the
Suit Properties. Needless to mention that at the time of Final Decree
proceedings, if it is established that it does not belong to the joint family,
the Trial Court can very well delete the same from the description of
property.
26. The Trial Court wrongly negatived the relief of mesne
profits. In a Suit for partition, the plaintiff, who is excluded from the
income arising from the joint family properties, is entitled to get accounts
from the defendants who are in actual possession and enjoyment of the
Suit properties. The First Appellate Court rightly granted the relief of
mesne profits in favour of the plaintiff.
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27. As regards Court Fee, the plaintiff and the defendants are
co-owners and hence, the Court Fee valued by the plaintiff under
Schedule II Article 11 of Pondicherry Court Fee and Suit Valuation Act,
1972 is correct. The Trial Court, in Paragraph No.XI of its Judgment, has
correctly dealt with the aspect of valuation of the Suit. [See. Neelavathi
and Others Vs. M.Natarajan and Others, reported in AIR 1980 SC 691]
The aforesaid decision is applicable to the case pari materia.
28. Substantial Questions of Law are answered accordingly.
CONCLUSION:
29. In the result, the Second Appeal is partly allowed and the
plaintiff is entitled to 1/8 share in the Suit Properties except Item No.10 of
the Suit Properties. Accordingly, a Preliminary Decree is passed in favour
of the plaintiff. In all other aspects, the Judgment and Decree passed by
the First Appellate Court is confirmed. Considering the facts and
circumstances of the case, there shall be no order as to costs.
07 / 01 / 2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
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TK
To
1.The Principal Sub Judge
Puducherry.
2.The I Additional District Munsif
Puducherry.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.182 OF 2020
07 / 01 / 2025
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