[Cites 13, Cited by 0]
Madras High Court
Radhakrishnan @ Krishnamurthy Naidu ... vs Pandurangan on 22 January, 2026
S.A.No.119 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.11.2025
Pronounced on : 22.01.2026
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.119 of 1999
1.Radhakrishnan @ Krishnamurthy Naidu (Died)
2.Kannaian
3.Kothandaraman (Died)
4.Seetharaman (Died)
5.K.L.Nararyanan
6.Rajakumari
7.Bharathi
8.Venugopal
9.R.Kumar
10.R.Dheenan ... Appellants
(A3 Died, A5 & R5 to R7 brought on
record as Lrs of the deceased A3
vide court order dated 24.01.2023
made in CMP.No.5876 of 2020,
16701 & 16704 of 2022 in
SA.No.119 of 1999)
(A1 Died, A9 & A10 brought on
record as Lrs of the deceased A1
vide court order dated 24.01.2023
made in CMP.Nos.10572, 10576 &
10577 of 2022 in CMP.No.20626 of
2018 in S.A.No.119 of 1999)
(A4 Died. A6 to A8 brought on
records as LRS of the deceased A4
vide court order dated made in
CMP.No. In S.A.No.119 of 1999)
Vs.
1.Pandurangan
2.Purushothaman
1/34
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S.A.No.119 of 1999
3.S.Rani
4.Mallika
5.Ananth
6.Bharath Bhushan ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgement and decree of the learned District Judge,
Villupuram District dated 28.07.1998 passed in A.S.No.90 of 1997 and
against the judgment and decree of the learned Subordinate Judge,
Dindivanam dated 31.01.1997 passed in O.S.No.7 of 1999.
For Appellants : Mr.A.R.Sakthivel
For Respondents
1, 3 & 4 : Mr.Ruban Chakravathy,
for Mr.S.Kaithamalai Kumaran
For Respondents
5 to 6 : Not ready in notice
JUDGMENT
The plaintiffs challenge the judgment and decree of the learned
District Judge, Villipuram in A.S.No.90 of 1997 date to 28.07.1998 in
confirming the judgment and decree of the learned Subordinate Judge at
Tindivanam in O.S.No.7 of 1989 dated 31.01.1997.
2. For the sake of convenience, the parties will be referred to as
per their ranks in the suit.
3. O.S.No.7 of 1989 is a suit for partition and separate
possession. The suit schedule mentioned properties have been earmarked
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as 'A' schedule and 'B' schedule. Insofar as 'A' schedule properties are
concerned, there is no dispute. The trial court decreed the suit declaring
29/49th share in 'A' schedule mentioned property and passed preliminary
decree. It dismissed the suit with respect to 'B' schedule mentioned
property. The defendants did not prefer an appeal, insofar as the first part
of the trial court decree is concerned. It was only the plaintiffs, who had
preferred an appeal, aggrieved by the dismissal of the suit with respect to
'B' schedule. The appellate court agreed with the judgment and decree of
the trial court with respect to 'B' schedule. Hence, this second appeal.
4. The plaintiffs 1 to 4, defendants 2 to 4 are the children of the
first defendant, Raju Naidu and Alamelu Ammal. The fifth defendant is
the wife of the second defendant and the daughter-in-law of the said Raja
Naidu and Alamelu Ammal.
5. For ready reference, the admitted genealogy is setforth
hereunder:
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Raju Naidu – Alamelu Ammal
(D1)
____________________________________I____________________________________
I I I I I I I
I Kannian I Seetharaman I Purushothaman I
I (P2) I (P4) I (D2) I
Radhakrishnan Kothandaraman Pandurangan Rani
(P1) (P3) D1) (D3)
I
I (Wife)
I
Mallika
(D5)
6. The case of the plaintiffs is that 'A' schedule mentioned
properties are joint family properties. Items 1 to 3 and 7 are the properties
purchased by Raju Naidu in the name of his wife, Alamelu Ammal.
Similarly, items 4, 5 and 6 are also properties, which belonged to the joint
family. According to them, the plaintiffs had left their native village and
had gone elsewhere for the purpose of their avocation. They sent monies
to Raju Naidu, who was residing in the native place along with one son.
The properties specified in the 'B' schedule were purchased by Raju
Naidu, from and out of the funds, available in the joint family pooling it
with the contributions of the plaintiffs. Raju Naidu did not have any
independent right over the property nor did Alamelu Ammal. Alamelu
Ammal settled the property in favour of the plaintiffs' sibling, Rani.
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7. As Alamelu Ammal herself did not have right, the execution of
the settlement deed does not bind the plaintiffs. Similarly Raja Naidu had
sold the properties covered in items 4, 5 and 6 in favour of Mallika, his
daughter-in-law. As Raju Naidu did not have any right over the property,
the alienation will not bind the plaintiffs. The plaintiffs further pleaded
that whatever debts that had been incurred by the father, viz., the first
defendant had been repaid and the property was debt free. As amicable
partition was not possible, they came forth with the present suit for
partition.
8. Pending the suit, Raju Naidu passed away. As his legal heirs
were already on record, no further action had to be initiated nor was
initiated. The siblings of the plaintiffs, Pandurangan and Purushothaman
were served with summons, but remained exparte. The sister of the
plaintiffs, 4th defendant, on being served with summons, filed a written
statement and with the permission of the court, she also filed an
additional written statement.
9. The fourth defendant stated that she alone maintained her
father, Raju Naidu, till he passed away. He lived with her for nearly 15
years. She denied that A and B schedule mentioned properties were
purchased out of the income from ancestral properties of the first
defendant as well as from the joint labour and exertion of the plaintiffs
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and defendants 1, 2 and 3. She pleaded that the first plaintiff migrated to
his father-in-law's house 45 years earlier to the presentation of the plaint.
Similarly, the second plaintiff, Kannaian also migrated to Chennai and
was indulging in vegetable vending business. She added that the third
plaintiff Kothadaraman is also settled in Chennai. With the funds that the
first defendant had given, the said Kothandaraman commenced a printing
press business. She pleaded that the third defendant secured employment
in Chennai and had settled therein along with his family. She alleged that
the earnings of the plaintiffs and the third defendant were barely
sufficient to meet the expenses of their family and therefore, there was no
excess available with them, for funding the purchase of suit schedule
properties.
10. The fourth defendant further pleaded that her father was
unable to maintain the family and therefore, he sold the property situated
in Survey No.35/7 together tamarind trees for legal necessity and for
family benefit. She asserted that their mother, Alamelu Ammal had
purchased the suit properties, from and out her own income and funds.
She pleaded that as the properties were Alamelu Ammal's properties, she
is entitled to alienate the same. She denied the allegation that the first
defendant was residing with the second defendant and that, the first
defendant had executed a sham and nominal document in her favour.
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11. Putting up a defence for the fifth defendant, she stated that
the first defendant was heavily indebted and had no funds to repay the
same. Therefore, he sold the items 4 to 7 to the fifth defendant under a
registered sale deed dated 12.01.1977 for a sum of Rs.760/- and put her
in possession of the same. As the sale had been made for family necessity
and to discharge the antecedent debts, the sale is valid and binding on
the plaintiffs.
12. Insofar as the items 1 to 3 and 7 of 'B' schedule are
concerned, she pleaded that the purchase was made by Alamelu Ammal
from and out of her own funds. She added Alamelu Ammal's parents had
left for Malaysia, leaving their properties to her. From and out of the
enjoyment of those properties left behind by her parents, she had
sufficient income. Added to this, her parents send money from abroad
and hence, Alamelu Ammal had purchased items 1 to 3 and 7 from her
income.
13. The fourth defendant added that Alamelu Ammal always
treated the properties purchased by her as her separate properties and
never clubbed with, or threw them into, the common hotchpotch of the
family. She stated that the plea of the plaintiffs that they have prescribed
title by adverse possession is false. She pointed out that after she had
secured the property by way of a settlement deed. As the owner of the
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property, she mortgaged items 1 and 7 to one Agilandam on 14.05.1979.
Subsequently, she discharged the mortgaged on 05.08.1988. Yet again,
she mortgaged items 1, 2 and 7 to the said Agilandam and had also
delivered possession of the same. On the date of presentation of the
plaint, she submitted that Agilandam was in possession and enjoyment.
However, she is the owner of the properties 1 to 3 and 7. She alleged that
the plaintiffs are colluded together to grab her property and that, the male
children of Raju Naidu had abandoned him and it fell on her to maintain
her father. She also pleaded that the suit is bad for partial partition and
that, there is no cause of action for the suit.
14. The fifth defendant entered appearance and filed a written
statement in respect to items 4, 5 and 6 of the 'B' schedule. She pleaded
that items 1 to 3 and 7 belonged to Alamelu Ammal, her mother-in-law,
and she alone was the owner of the same. She stated that her father-in-
law, Raju Naidu was always with the fourth defendant and she alone
maintained him. She denied the allegation that the first defendant had
fabricated the sale deed and sold items 4, 5, and 6 to her. She also
pleaded that the first defendant was heavily inducted and could not raise
money to meet the expenses of cultivation. Therefore, he decided to sale
the property. Instead of alienating it to a third party, he offered to sell the
property to his sons, viz., the plaintiffs and the defendants 2 and 3. He
made this offer by way of a notice dated 07.11.1975. Despite this notice,
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as none of the sons came forward to discharge the loans or to purchase
the property, the fifth defendant had taken the assistance of her parents
and along with the funds that she already had, got the registered sale
deed for item 4, 5 and 6. The sale deed was for valuable consideration of
Rs.760/- and it was executed and registered on 12.01.1977. She pleaded
that she alone was in possession and enjoyment of the same and that she
had mutated the revenue records for the properties in her favour.
15. The fifth defendant denied that the second defendant made
the first defendant execute the deed fraudulently. Finally, she pleaded
that the sale deed dated 12.01.1977 being one effected to discharge the
antecedent debt of the first defendant and for family necessity, it is
binding on the plaintiffs. She raised a plea that as the plaintiffs and the
defendants 1 to 3 were not in possession of the items in the B schedule
mentioned properties, the suit ought to have been valued under section
37(1) of the Tamil Nadu Court Fees and Suit Valuation Act and hence,
proper court fee had not been paid. Consequently, she sought for
dismissal of the suit.
16. The fourth defendant with the permission of the court filed
an additional written statement. She pleaded that Alamelu Ammal had
purchased item 2 of the B schedule property by way of a registered sale
deed from one, Pattammal on 30.05.1945 for a sum of Rs.50/-. Similarly,
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she purchased a portion of item 3 for a sum of Rs.15/- from one Nallan.
This sale, too, was registered on 29.09.1952. The remaining portion of
item 3 was purchased on 24.06.1959. Alamelu Ammal purchased items 1
and 7 on 23.11.1953 from one Sundaram for a valid sale consideration of
Rs.300/-.
17. The fourth defendant further pleaded that as she was the
only daughter of Raju Naidu and Alamelu Ammal, Alamelu Ammal, out of
love and affection towards her, executed a registered settlement deed on
29.12.1956 and had put her in possession of the same. She pleaded that
the settlement deed was accepted and acted upon, and the revenue
records were also mutated in her favour. On these grounds, she sought
for dismissal of the suit with costs.
18. With the pleadings have been completed, the learned Trial
Judge framed the following issues:
“1/ tHf;F *v* kw;Wk; *gp* bc&l;a{y; brhj;Jf;fs;
midj;Jk ; thjpfs ; kw;Wk ; 1k ; gpujpthjpf;Fhpa
Tl;Lf;FLk;gr;brhj;Jf;fs; vd;W TWtJ rhpjhdh>
2/ tHf;F *gp* ml;ltizapy; 1 Kjy; 3 kw;Wk;
7tJ gphpt[ brhj;Jf;fs; thjpfs; kw;Wk; gpujpthjpfSf;F
brhe;jkhfptpl;lbjd;W TWtJ rhpjhdh>
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3/ ,t;tHf;if jhf;fy ; bra;a thjpfSf;F
K:yfhuznk ,y;iy vd;W TWtJ rhpjhdh>
4/ tHf;F *gp* ml;ltizr;brhj;J gphpt [ 4
Kjy ; 5k ; gpujpthjpf;Fr ; brhe;jkhdJ vd;W TWtJ
rhpjhdh>
5/ ,t;tHf;fpy ; brYj;jpapUf;Fk ; ePjpkd;wf;
fl;lzk; rhpapy;iy vd;W TWtJ rhpjhdh>
6/ thjpfSf;F Vw;gLk ; ,ju mDTy';fs;
VnjDk; cz;lh>”
19. On 09.08.1994, the issues were re-framed as follows:
“1/ 29/12/76 ehspl;l brl;oy;bkz;l;
cz;ikahdJk;. kw;Wk; bry;yj;jf;fjh>
2/ tHf;F *gp* ml;ltizapy; 1 Kjy; 3 kw;Wk;
7tJ mapl;lr ; brhj;Jf;fs ; 4k ; gpujpthjpf;F
brhe;jkhfptpl;lJ vd;W TWtJ rhpjhdh>
3/ tHf;F *gp* ml;ltizapy ; cs;s 4. 5
kw;Wk ; 6tJ mapl;lr ; brhj;Jf;fs ; 5k ; gpujpthjpf;F
brhe;jk; vd;W TWtJ rhpjhdh>
4/ ,t;tHf;if jhf;fy ; bra;a thjpfSf;F
K:yfhuznk ,y;iy vd;W TWtJ rhpjhdh>
5/ tHf;fpy ; brhj;jpypUf;Fk ; ePjpkd;wf;
fl;lzk; rhpahdjh>
6/ thjpfSf;F Vw;gLk ; ,ju mDTy';fs;
VnjDk; cz;lh>”
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20. On the side of the plaintiffs, the third plaintiff,
Kothandaraman examined himself as PW1 and one, Kuppusamy as PW2.
Ex.A1 to Ex.A17 were marked on the side of the plaintiffs. During the
course of cross examination of PW1, Ex.B1 was marked. The defendants 4
and 5 were examined as DW1 and DW3 and one Duraikannu was
examined as DW2.
21. As pointed out in the earlier portion of the judgment, the
learned trial judge decreed the suit, insofar as 'A' schedule mentioned
property is concerned and dismissed the suit insofar as 'B' schedule
mentioned property. The learned Trial Judge concluded as follows:
(i) Alamelu Ammal is the owner of the properties in items 1 to 3
and 7;
(ii) The settlement deed executed by Alamelu Ammal in favour of
Rani is true and genuine;
(iii) Raju Naidu was deeply indebted;
(iv) Raju Naidu had executed a sale deed for valid sale
consideration of Rs.760/- in favour of his daughter-in-law, Mallika-the
fifth defendant;
(v) The sale having been made to discharge the debt, the same is
binding on the plaintiffs.
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22. The plaintiffs carried the matter on appeal before the
learned District Judge at Villupuram. The learned District Judge,
Villupuram received the appeal as A.S.No.90 of 1997. The plaintiffs
pleaded that Alamelu Ammal had no source to acquire the property under
Ex.A5 to Ex.A8 and hence, the trial court should have concluded that the
properties are joint family properties. They pleaded that the Prohibition of
Benami Property Transactions Act is applicable to the facts of the case
and hence, the trial court should have concluded that the purchase in
favour of Alamelu Ammal was not with an intention to confer title on her.
They relied upon the cross examination of DW1 to show that their sister,
Rani did not have any idea about the properties or the income of their
maternal grandparents. They pleaded that the settlement deed was
executed under undue influence, and had not been accepted and acted
upon. In contradiction, they also urged that the father, Raju Naidu had
attested the document, as he was biased, against his sons and was acting
against their interest. Insofar as the revenue records are concerned, they
pleaded that it is only a mutation proceeding and consequently, do not
confer title.
23. The learned First Appellate Judge, after detailed analysis of
the evidence, agreed with the learned Trial Judge and dismissed the
appeal. Hence, the second appeal.
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24. This court took the appeal on file and framed the following
substantial questions of law:
“1. Are the provisions of the Benami
Transactions Prohibitions Act applicable to a joint family?
2. In a suit for partition of co-parcenary assets,
is not onus of proof shifted on the co-parcener who sets up
such plea?”
25. I heard Mr.A.R.Sakthivel, in support of the appeal and
Mr.Ruban Chakravarthy for Mr.S.Kaithamalai Kumaran for the
respondents 1, 3 & 4.
26. Mr.A.R.Sakthivel urged that the parties had admitted the
existence of the joint family, with the first defendant, Raju Naidu, as its
karta. In such an event, the provisions of Prohibition of Benami Property
Transactions Act, 1988 is not applicable. He added that in matters
relating to Hindu Joint Family, there is a presumption that all the
properties purchased by the joint family and its members are joint family
properties and that, even if it is not thrown in the common hotchpotch, it
has to be treated only as a coparcenary asset. He argued that the burden
of proof is on the defendants to show that the properties are not
coparcenary assets and the defendants had not displaced this burden of
proof. Consequently, he sought for the appeal to be allowed and the
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judgment and decree of the courts below to be set aside and for
preliminary decree for partition with respect to 'B' schedule mentioned
properties also.
27. Per contra Mr.Ruban Chakravarthy appearing for both the
daughter as well as the daughter-in-law argues as follows:
(i) The defendants have shown that Alamelu Ammal had
sufficient funds to purchase the property and therefore, the question of
property being a joint family property does not arise.
(ii) Raju Naidu was heavily inducted as is clear from Ex.B1 and
has reached out to the sons and since he did not receive any response
from them, he was constrained to sell the properties covered under items
4, 5, and 6 in favour of the fifth defendant, Mallika and hence, it is
binding on the parties.
(iii) The courts below have analysed the issues in-depth and had
rightly dismissed the suit, insofar as 'B' schedule mentioned property is
concerned. He states that no interference is necessary and sought for
dismissal of the appeal with costs.
28. I heard the parties. I have gone through the records. I have
applied my mind to the facts of the case and the law applicable.
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29. I shall divide this judgment in two portions. The first portion
of the judgment being with items 1 to 3 and 7 and the latter portion with
items 4 to 6.
I - Portion
30. The analysis of Prohibition of Benami Property Transactions
Act, 1988 shows that it explicitly excludes joint family properties from its
operation. It notably excludes the properties held by coparceners in an
Hindu Undivided Family, as the possession of one coparcener, is the
possession of the other and it is held for the benefit of the family. On the
same lines, the properties held in fiduciary capacity for the benefit of
others are also excluded.
31. The primary object of the Act is to prohibit benami
transactions. Benami transaction means a property is transferred to one
person but paid for by another. The intention for such a transaction is to
concede true ownership. Section 4(3) of the Act as it stood in the year,
1988, specifically excluded the properties held by a coparcener in a joint
family.
32. The legal position has been settled by the Supreme Court in
Vinod Kumar Dhall Vs. Dharampal Dhall, AIR 2018 SC 3470. The
amendment to Prohibition of Benami Property Transactions Act has
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widened the definition of Benami Transactions. However, it still preserves
the exemption for the properties held in fiduciary capacity or for benefit of
coparceners. The amendment clarified the properties held in the name of
a coparcener for the benefit of the family are not Benami, provided they
fall within the exceptions. This would answer the first question of law
framed in the appeal.
33. Yet the issue still arises is whether this is a a red-herring
plea or a plea raised with a ring of genuineness about it.
34. It is the assertion of the appellant that as Raju Naidu was
the karta of the joint family and since properties have been purchased in
the name of his wife, Alamelu ammal, there is a presumption that the
property is a joint family property. The position of law is otherwise. There
is no presumption, as in the case of a male coparcener, that the property
standing in the name of the female too, is presumed to be from the
coparcenery. The onus of proof does not shift to the defendants to show
that Alamelu Ammal had sufficient funds. The law places a heavy burden
on the persons asserting that the property, which had been purchased in
the name of the female member, is not her individual property but that
belongs to the joint family. The position of law had been settled at least
140 years ago.
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35. A Division Bench of this Court consisting of Sir Charles
Turner CJ and Mr.Justice T.Muthusamy Ayyar in Narayana v. Krishna
(1884) ILR 8 214 observed as follows:
"Where a family lives in co-parcenary, the
presumption which exists in the case of male members
arises from the circumstance that they are co-parceners.
On the other hand, the ladies are not in an undivided
family co-parceners; whatever property they acquire by
inheritance or gift is their separate estate, and although it
is not unusual for property to be transferred to the name of
a female member to protect it from the creditors of the male
members, or to place it beyond the risk of extravagance on
the part of the male members, such dealings are
exceptional and can afford no ground for a general
presumption."
36. I should point out here that this principle, which had been
applied for Mithakshra co-parcenery, was extended even to a family
governed by Dhayabaga in Protap Chandra Gope v. Sarat Chandra
Gangopadhyaya, AIR 1921 Cal 101 (DB) (per Ashutosh Mookerjee,
Acting CJ and Fletcher, J).
37. The aforesaid verdicts makes it clear that the presumption
sought to be projected by Mr.A.R.Sakthivel does not exist. Yet, the
plaintiffs could have let in evidence to show that the money advanced to
Alamelu Ammal for purchase of the property came from the joint family
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funds. This burden is very heavy. It is Mr.Sakthivel's client, who claimed
that the property, which was purchased in the name of Alamelu Ammal,
is a joint family property. They should have established the same through
proper pleadings and evidence, since the burden of proof lies on them.
The properties were purchased by Alamelu Ammal under Ex.A5 to Ex.A7.
These documents are dated 24.08.1959, 23.11.1953 and 30.05.1946. The
suit had been presented nearly 30 years after the date of purchase. There
is no evidence to show that Raju Naidu had asserted that the properties
standing in the name of Alamelu Ammal had, in fact, been treated by him
as the properties belonging to the joint family. Further, there is no
evidence to show that Alamelu Ammal had thrown the properties into a
common hotchpotch.
38. Per contra, Ex.B4 would show that mutation of records have
been made in the individual name and no joint patta had been granted.
Ex.B2 shows that the revenue records for the Fascili year 1381 was in the
name of Alamelu Ammal. This shows that the period of 30 years and
more, Alamelu Ammal had enjoyed the properties as its owner. None of
the records filed by the plaintiffs indicate that they have been treated as
joint family properties. When the initial burden is on the plaintiffs and
when they have not discharged the same, I am not in a position to agree
with the submissions of Mr.Sakthivel that the courts below should have
called upon the fourth defendant to prove that Alamelu Ammal is the
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owner of the property. It is the plaintiffs' assertion that it is the joint
family property and when they have not proved the same, the onus does
not shift to the fourth defendant.
39. Apart from these two facts, a perusal of Ex.A1 throws a very
interesting aspect. It shows that the vendor, under Ex.A1, had mortgaged
the property of Alamelu Ammal. As he was not able to discharge the
same, he executed a sale deed in favour of the first defendant, Raju
Naidu. This shows that as early as 1946, Alamelu Ammal was possessed
of enough and more funds to give it as a loan to a third party.
40. It is here that I will take note and will approve the
submissions of Mr.Ruban Chakravarthy. The period of Ex.A5 to Ex.A7
has been extracted above. It was during the said period, the first
defendant had also purchased the property. A cursory conclusion would
be that the husband, with the funds available with him, had purchased
the properties and the wife had purchased the properties in her name
from her funds. In order to get over this difficulty, the plaintiffs have
pleaded that the first defendant had purchased the property in the name
of his wife, as he wanted to keep the property away from the hands of his
brother, namely, the paternal uncle of the plaintiffs. If this plea were to be
accepted, then, Raju Naidu, would have purchased the properties in the
name of his wife rather than the few in his name and few more in the
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name of his wife. The plea of Raju Naidu did so in order to keep the
property away from his brother is nothing but a figment of imagination of
the plaintiffs. There is absolutely no evidence on record to show that there
was a dispute between Raju Naidu and his brother, during the relevant
point of time.
41. It is crucial because the plaintiffs were not toddlers, when
the properties were purchased, going by the declaration of the age in the
plaint. PW1 would have been around 28 to 30 years. Obviously, he would
have been aware of what is happening in the family, in case, there was a
dispute. Unfortunately, for Mr.Sakthivel's client, no evidence has been let
in before the court. There, being no presumption that the property
standing in the name of a female is a coparcenary property and there
being no evidence to show that Raju Naidu had advanced funds for the
purpose of purchase of the property by Alamelu Ammal nor there being
any evidence to show that there had been pre-existing dispute between
Raju Naidu and his brother and in the light of Ex.B1, which indicates that
Alamelu Ammal was possessed of sufficient funds, I am not in a position
to agree with the plea of Mr.Sakthivel.
42. Insofar as the proof of settlement deed is concerned, even
the plaint concedes that the settlement deed had been executed in favour
of Rani, the fourth defendant. Under the proviso to Section 68 of the
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Indian Evidence Act, a party is called upon to prove the document, which
requires by law to be attested, only if the execution and attestation is
specifically denied. As the plaintiffs themselves have conceded to the
execution of the settlement deed in their plaint, the necessity of the
defendants to examine the attesting witnesses does not arise. Hence, I
conclude that Alamelu Ammal, having purchased the property under
Ex.A5 to Ex.A7, was the owner of the propety and she was entitled to
execute the settlement deed for suit items 1 to 3 and 7 in favour of her
only daughter Rani, the fourth defendant.
43. The fact that Raju Naidu did not take any action during the
lifetime of Alamelu Ammal and the fact that the plaintiffs did not
approach the court soon after the execution of the settlement deed casts a
huge doubt over their case. If the deeds, involved in the appeal had been
challenged at that time, or near the date of their execution, Alamelu
Ammal would have been in a position to give evidence independent of the
documents. In such a circumstances, certainly the contents of the
documents would not have been accepted as a proof of the facts. The
documents are at least 30 years old. By the time they came before the
court, the parties to the document had grown older, or as in this case,
Alamelu Ammal had passed away. Hence, the test should be whether the
recitals contained in the document are consistent with the probabilities
and circumstances of the case, which assumes great importance and
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cannot be interfered with. If the court were to demand the same evidence
in the 1990s, as it would have demanded in the 1950s, then the title
would become weaker as it grows older, and a transaction that was
perfectly honest and legitimate when it took place would ultimately
became incapable of justification merely due to the passage of time. The
view expressed in Banga Chandra Dhur Biswas v. Jagat Kishore
Chowdhuri and Others, 1916 L.R 43 I.A 249 (per Lord Buckmaster)
applies in full force to the facts of the present case.
Part II
44. In this portion of the judgment, I will deal with items 4, 5
and 6 of the B schedule.
45. It is the claim of the plaintiffs that the second respondent
Pandurangan had practiced undue influence and coercion on Raju Naidu
and got the sale deed executed in favour of his wife, the fifth defendant.
The plea of undue influence and coercion implies the execution of the
document is admitted, but the document is vitiated due to vitiating
circumstances. The Code of Civil Procedure, under Order VI Rule 4, calls
upon a party, who projects a case of undue influence and coercion, to give
specific details regarding the same. The provision demands that the
parties pleading misrepresentation, fraud, breach of trust, wilful default
or undue influence, to state the particulars with dates and items, if
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necessary in the pleadings. Sadly in this case, the plaint does not give any
such details.
46. If I were to give the benefit to the plaint, of being a moffusil
pleading and thereby entitled to certain latitude, on the evidence aspect
too, the plaintiffs have miserably failed. Apart from the examination of
PW2, the plaintiffs have not let in any evidence to show that the practice
of undue influence by the second defendant on the first defendant. There
is no proof either that Raju Naidu was ever taken care by the plaintiffs or
the defendants 2 and 3. On the contrary, the evidence of PW2 indicates
that Raju Naidu was heavily indebted and was not in a position to carry
on his agricultural activities. It is here that the document, under Ex.B1,
clinches the case of the defendants. Ex.B1 is a letter written to his sons
by Raju Naidu. For ready understanding, the contents are extracted in
extenso:
“ jpz;otzk;
07/11/1975
br";rp jhYf;fh. nky ; nrt{h;
fpuhkj;jpypUf;Fk; uh$%eha[L Fkhuh; uhjhfpUc&;z eha[L
1/ brd;id(n.c.) khh;f;bfl ; fha;fwp tpahghuk ; bra;a[k;
uh$%eha[L Fkhuh ; fd;ida;a eha[L 2/ brd;id
nrg;ghf;fk ; bry;yg;gps;isahh ; nfhapy ; bjUt [ 7-AFk;
b$fn$hjp gpu! ; chpikahsh ; uh$%eha[L Fkhuh;
nfhjz;l uhk eha[L 3/ jpz;otdk; jhYf;fh. rhj;jD}h;
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fpuhkj;jpypUf;Fk ; uh$%eha[L Fkhuh; rPj;jhuhk eha[L 4/
kJiu bjw;F btsp tPjpapy ; 211y ; ,Uf;Fk ; Re;juk;
industries y; ntiy ghh;f;Fk; Badge No. 3008 cs;s uh$
%eha[L Fkhuh ; g[Unc&hj;jk eha[L 5/ jpz;otdk;
jhYf;fh. rhj;jD}h; fpuhkj;jpypUf;Fk; uh$%eha[L Fkhuh;
ghz;Lu';f eha[L 6/ Mfpa c';fSf;F jpz;otdk;
jhYf;fh. rhj;jD}h ; fpuhkj;jpypUf;Fk ; Fkhurhkp
eha[L ,d;b$';c&d ; bgw;wjhy ; nkw;go jpz;otdk;
ml;tnfl ; A.mUzhry rh!;jpupahh ; bjhptpf;Fk;
nehl;O!;/
eP';fs ; MW ngUk ; vd ; fl;rpf;fhuupd;
Fkhuu;fs;/ c';fspy ; 1. 2. 3. 5 egh;fs;
btspa{hpy ; ,Uf;fpwPh;fs;/ 4. 6 egh;fs ; vd;
fl;rpf;fhuUld ; ,Uf;fpwPh;fs;/ vd ; fl;rpf;fhuUf;F
tajhfptpl;ljhy ; fld;fs ; bjhy;iy mjpfkhfp
tpl;ljhy ; ... bfhLf;Fk ; go /// vd ; fl;rpf;fhuUf;F
6000/-– tiuapy ; gpuhkprhp nehl;Lfs ; nyhd;. fld;
bfhLf;f ntz;o ,Uf;fpwJ/ vd ; fl;rpf;fhuUf;F gaph;
rpytpw;Fk ; FLk;g rpytpw;Fk ; rpy;yiu fld;fs ; igry;
bra;at[k ; Rs.1000/- njitahf ,Uf;fpwJ/ Mfnt vd;
fl;rpf;fhuUf;F Rs.7000/- cldoahf
njitaha ; ,Uf;fpwF/ mjw;fhf vd ; fl;rpf;fhuUf;F
Flapiw btspapy; cs;s XLfs; 72 brz;l ; epyj;jpy; 2
Vf;fh ; epyk ; gk;g [ brl ; cs;gl fpuak ; bra;J tpl
jPh;g;gspj;J ,Uf;fpwhh;/ c';fspy ; xUtUf;fhtJ Jif
bfhLj;J fpuak ; bgw;Wf ; bfhs;s jahuha ; ,Ue;jhy;
me;j egUf;F vd ; fl;rpf;fhuh ; fpiuak ; bfhLf;f
jahuha; ,Uf;fpwhh;/
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c';fspy ; vtUk ; nkw;goJiff;F fpiuak;
bra;Jf ; bfhs;s ,c&;lg;glhtpl;lhy ; vd ; fl;rpf;fhuh;
btsp egUf;F fpiuak ; bra;J bfhLf;f mtrpak;
Vw;gLk ; vd;gij ,e;j nehl;O! ; K:yk;
bjhptpf;fg;gLfpwJ/ fpiuak;
itj;Jf;bfhs;s ,c&;lg;gLk; egh; xU thuj;jpw;Fs; vd;
fl;rpf;fhuUf;F bjhptpj;J fpiuaj;ij g{h;j;jp bra;Jf;
bfhs;s ntz;oaJ vd;gij ,jd ; K:yk ; c';fSf;F
bjhptpf;fg;gLfpwJ/
sd/-
Advocate
07.11.75.”
47. Reading of the letter shows that the father had reached out
to the sons pointing out to the debts that the family had incurred and
informed them that he has decided to extinguish the assets. Raju Naidu
had called upon the sons to purchase the property so as to generate
funds for him and settle the debts. It is relevant to note that Ex.B1 was
not produced by the defendants. While in the witness box, PW1 was
confronted with this document during the course of his cross-
examination. PW1 had admitted to this document. The relevant portion is
extracted hereunder:
“1975y; vd; jfg;gdhy; vdf;F xU mwptpg;g[
bfhLj;jhh;/ fld;’bjhy;iy mjpfkhf cs;sJ
vd;Wk;. fld ; fl;lKoatpy;iy vd;why ; brhj;Jf;fs;
tpw;W gzk;;fl;otpLntd; vd;W mjpy; brhy;ypapUe;jJ
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mJ rhpay;y/ v';fSf;F mDg;gg;gl;l nehl;O! ; efy;
gp/th/rh/1 ,jw;F eh';fs;sgjpy;’vJt[k;
bfhLf;ftpy;iy. Vd;djk;gpfs;sahUk;kgjpy;
bfhLf;ftpy;iy/ ,e;j mwptpg;g[mmDg;gg;gl;l
fhyj;jpy;y; ahUk;k; itj;J guhkhpf;ftpy;iy vd;W
brhd;dhy; mJ rhpay;y/”
48. This letter indicates that as early as 1975, Raju Naidu was
sinking in debt and was crying out for help. The sons were not willing to
come to his assistance. This shows that there are antecedent debts and
Raju Naidu was willing to sell the property. It was under those
circumstances, that the fifth defendant had come forward to purchase the
property for a sum of Rs.760/-.
49. A perusal of the sale deed also shows that it was for the
purpose of extinguishing the debt that the Raju Naidu had incurred. This
shows that there was an antecedent debt and the Karta had alienated the
property for the purpose of extinguishing that debt. It is a well settled
position of law that the sale of a karta of the joint family assets for the
extinguishing antecedent debts will not only bind his share but also the
shares of the sons.
50. Post the independence, the Supreme Court had an occasion
to consider the issue as to the liability of the son with respect to the debts
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of father even post partition. Answering the liability to be in the
affirmative, the Supreme Court in Pannalal v. Naraini, (1952) 1 SCC
300 held that the sons are liable to pay pre-partition debts of the father,
even after partition, unless there was an arrangement for payment of the
debts of the father, at the time when partition took place. For ready
reference, the relevant portion is extracted here:
"13. It can now be taken to be fairly well settled
that the pious liability of the son to pay the debts of his
father exists whether the father is alive or dead. [Brij
Narain v. Mangla Prasad, (1923-24) 51 IA 129 : 1923
SCC OnLine PC 49] Thus, it is open to the father, during
his lifetime, to effect a transfer of any joint family property
including the interests of his sons in the same to pay off
an antecedent debt not incurred for family necessity or
benefit, provided it is not tainted with immorality. It is
equally open to the creditor to obtain a decree against the
father and in execution of the same put up to sale not
merely the father's but also the son's interest in the joint
estate. The creditor can make the sons parties to such suit
and obtain an adjudication from the court that the debt
was a proper debt payable by the sons. But even if the
sons are not made parties, they cannot resist the sale
unless they succeed in establishing that the debts were
contracted for immoral purposes."
51. Soon thereafter, in Sidheshwar Mukherjee v.
Bhubneshwar Prasad Narain Singh, (1953) 2 SCC 265 another three
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Judge bench of the Supreme Court, while approving the view taken in
Pannalal's case cited above, held that in a suit filed by the creditor
against a father, the sons are not even necessary parties. The only
exception when the son was not held liable for the debt is when the debt
is tainted with immorality. Having come to this conclusion, the Supreme
Court approved the view of the Board in Mussamut Nanomi Babuasin's
case. The law laid down by the court is as follows:
"11. Holding, as we do, that the sons were
liable in this case to discharge the decretal debt due by
their father, the further question arises as to how this
liability could be enforced? Could the interest of the sons
in the joint property be attached and sold without making
the sons parties to the suit and the execution proceedings?
The point does not seem to us to present much difficulty.
Strictly speaking, the sons could not be said to be
necessary parties to the money suit which was instituted
by the creditor against the father on the basis of a
promissory note. If a decree was passed against the
father and the sons jointly, the latter would have been
personally liable for the debt and the decree could have
been executed against their separate or personal property
as well. No doubt the sons could have been made parties
to the suit in order that the question of their liability for the
debts of their father might be decided in their presence. Be
that as it may, the money decree passed against the
father certainly created a debt payable by him. If the debt
was not tainted with immorality, it was open to the
creditor to realise the dues by attachment and sale
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of the sons' coparcenary interest in the joint
property on the principles discussed above."
52. The Supreme Court in another three Judge bench in Faqir
Chand v. Sardarni Harnam Kaur, (1967) 1 SCR 68, after surveying of
all the authorities, approved the view of the Privy Council in Suraj Bunsi
Koer v. Sheo Prashad Singh [(1878) ILR 5 Cal 148 (PC) which held as
follows:
"That where joint ancestral property has passed
out of a joint family either under a conveyance executed
by a father in consideration of an antecedent debt, or in
order to raise money to pay off an antecedent debt, or
under a sale in execution of a decree for the father's debt,
his sons, by reason of their duty to pay their father's
debts, cannot recover that property, unless they shew that
the debts were contracted for immoral purposes, and that
the purchasers had notice that they were so contracted.”
53. The aforesaid verdicts make it clear that the sale executed
by the father for his antecedent debts binds the sons. A sale is treated as
valid, till it is set aside. The least that the plaintiffs should have sought for
is a declaration that the sale deed executed by her father in favour of the
fifth defendant is not binding on them. The prayer in the plaint is one
simplicitor for partition without the relief of such declaration. Hence, even
the maintainability of the suit is in doubt.
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54. Though Mr.Ruban Chakravarthy pleaded that the sale deeds
in favour of Alamelu Ammal and the settlement deed in favour of Rani had
been attested by Raju Naidu, which indicates that Raju Naidu had
conceded to the ownership of Alamelu Ammal, I am not willing to take the
plea of attestation to such a high level. This is because there is no plea in
the written statement to that effect. It is a settled position of law that
where there is no plea, there cannot be any evidence. Furthermore, the
attestation alone does not operate as estoppel. Attestation can serve as a
proof of evidence of a transaction or acknowledgment. It does not
inherently create a legal bar unless it forms part of a broader context
where the conduct, reliance and the principles of equity are inextricably
involved.
55. Doctrine of estoppel requires a representation or conduct
that induces reliance, which is not necessarily established, merely
through attestation. As I have concluded that the plaintiffs are not
entitled to a relief otherwise, the issue on estoppel raised by Mr.Ruban
Chakravarthy need not be dealt with in detail beyond the above
observations.
56. The fact that Raju Naidu was not flush with funds and was
in debt is clear from Ex.A9. Under this document, as early as 1944, Raju
Naidu had alienated his properties in favour of one Pattammal on his
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behalf and on behalf of his brother, in order to raise funds for the family.
There, being no evidence dislodging the validity of the document, I am of
the clear view that the defendants 4 and 5 are the owners of the items 1
to 7 of the 'B' schedule and no error was committed by the courts below in
dismissing the suit for partition.
57. In fine, both the questions of law are answered against the
appellants. The second appeal stands dismissed with cost throughout.
The judgment and decree of the learned District Judge, Villupuram
District dated 28.07.1998 passed in A.S.No.90 of 1997 confirming the
judgment and decree of the learned Subordinate Judge, Dindivanam
dated 31.01.1997 passed in O.S.No.7 of 1999 stands confirmed.
22.01.2026
nl
Index : Yes/No
Speaking order/Non-speaking order
Neutral Citation : Yes/No
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To
1.The Sub Court, Chidambaram
2.The Additional District Judge cum CJM Court, Cuddalore,
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V.LAKSHMINARAYANAN, J.
nl
22.01.2026
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