Allowed

Dhanalakshmi Ammal v. S.Rajendran

Madras HC31 Jan 2017SA/230/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the court held that the plaintiffs failed to prove the property was joint family property acquired from an ancestral nucleus. Consequently, the property belonged to the father as self-acquired, and he could validly alienate it, warranting dismissal of the partition claim.

What did the court decide?

Second appeal allowed; first appellate judgment set aside; decree of the District Munsif Court confirmed.

Dhanalakshmi Ammal Vs S.Rajendran — Partition | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 15.11.2016 PRONOUNCED ON : 31.01.2017

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CORAM

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THE HONOURABLE MR. JUSTICE T.RAVINDRAN

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S. A.No.230 of 2011 and M.P.No.1 of 2011

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Dhanalakshmi Ammal ...Appellant/Respondent/ 2nd Respondent

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Vs. 1. S.Rajendran 2. S.Mani 3. Ramesh 4. Rajeswari 5. Geetha ...Respondents/Appellants/ Plaintiffs Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 25.06.2010 made in A.S.No.10/2009 on the file of the Sub Court, Vellore reversing the judgment and decree dated 05.02.2009 made in O.S.No.385 of 2005 on the file of the Principal District Munsif, Vellore.

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For Appellant : Mr.T.M.Hariharan For Respondents : Mr.M.R.Kapali for M/s.A.V.Ilango JUDGMENT

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The second defendant, in this second appeal, has impugned the judgment and decree dated 25.06.2010 made in A.S.No.10/2009 on the file of the Sub Court, Vellore, reversing the judgment and decree dated 05.02.2009 made in O.S.No.385 of 2005 on the file of the Principal District Munsif Court, Vellore.

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The suit has been laid by the plaintiffs for partition.

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The 4^th plaintiff is the wife, the plaintiffs 1 to 3 are the sons and the 5^th plaintiff is the daughter of the first defendant Sadasivam. According to the plaintiffs, the suit property is the joint family property of the plaintiffs 1 to 3 and the first defendant and that, the same was owned by the first defendant's father Singara pathar, he having purchased the same under the registered sale deed dated 19.01.1922. Thus,

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according to the plaintiffs, the suit property being the ancestral joint family property of the plaintiffs 1 to 3 and the first defendant and inasmuch as, despite the notice, the first defendant, who had never cared to look after his family and also a drunkard and spend thrift and not attending to his job, the second defendant having obtained the sale deed in respect of the suit property from the first defendant on 25.09.1983 and as the plaintiffs 1 to 3 are entitled to each claim ¼ share in the suit property, it is stated that the suit has been laid seeking for partition.

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The second defendant contested the claim of the plaintiffs and denied that the suit property is the ancestral joint family property of the plaintiffs 1 to 3 and the first defendant as put forth by the plaintiffs. The second defendant has also contested the plaintiffs' claim of partition on the footing that the property was originally owned by Singara pathar under the sale deed dated 19.01.1922.

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The second defendant further denied the case of the plaintiffs that the first defendant is a drunkard and spendthrift and not looking after his family. According to the second defendant, the suit property is not the joint family property of the first defendant and the plaintiffs 1 to 3 and it is always treated and enjoyed by the first defendant as his self acquired property and the suit property was not acquired with the aid of any ancestral nucleus and therefore, it is stated that the plaintiffs are not entitled to claim the relief of partition in the suit property. Further, according to the second defendant, the second defendant after the purchase of the suit property from the first defendant, laid RCOP proceedings against the plaintiffs and even though the same went against the second defendant, still, her title to the suit property was upheld and therefore, according to the second defendant, the findings given in the Rent Control Proceedings operated as res judicata to the present suit of the plaintiffs. Further, it is also stated by the second defendant that the suit property had been alienated by Singara pathar to Subbaraya pathar and Subbaraya pathar had settled the suit property in favour of his wife and in turn, his wife has settled the suit property in favour of their daughter and subsequently, the suit property was conveyed to the first defendant under the sale deed dated 11.08.1996 and therefore, the suit property is the self-acquired property of the first defendant and not the joint family property as put forth by the plaintiffs.

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The plaintiffs have disputed the above claim of the second defendant and according to them, the transaction between Singara pathar and Subbaraya Pathar is only in respect of the money transaction and it is not a pucca sale deed transaction

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and further, the settlement deed had been created amongst the family members of Subbaraya pathar and the recitals found in the sale deed dated 11.08.1996 would go to disclose that there is no actual sale of the suit property in favour of Subbaraya pathar by Singara pathar and that, on account of the same, the suit property had been subsequently conveyed to the first defendant under the above mentioned sale deed.

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The second appeal has been admitted and the following substantial questions of law are formulated for consideration in this second appeal.

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Whether the plaintiffs who claim partition as though the suit property is ancestral property inherited from Singara Patthar are entitled to partition even in the absence of a pleading, let alone proof that the property that was subsequently, acquired by Sthasivam is joint family property in his hands acquired by him out of surplus from the joint family nucleus sufficient to admit the acquisition and so invested?

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When the plaintiffs claim that the property is held by Sathasivam in his name as joint family kartha, are they entitled to a Decree for partition without setting aside the sale executed by Sathasivam under Ex.B11?

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3.Whether the assumption of the Appellate Court that Ex.B2 were a security transaction does not proceed on a perverse appreciation of the document which does not contain any such recital and whether the claim made by Sathasivam that he had a share in the property would render Ex.B2 a security transaction?

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Whether, in any event, even assuming that the respondents can contend that the property is joint family property even in the absence of a pleading, are the respondents entitled to a decree without establishing that Ex.B11 sale is tainted by illegality, being a sale for immoral purpose?

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The plaintiffs have come forward with the suit claiming that the suit property is the joint family property belonging to

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the plaintiffs 1 to 3 and the first defendant. As rightly found by the trial Court, it has not been mentioned in the plaint specifically that the suit property had been purchased by Singara pathar, the father of the first defendant, out of the aid from any ancestral nucleus. According to the plaintiffs, simpliciter inasmuch the suit property was owned by the Singara pathar by acquiring the same under the sale deed dated 19.01.1922 the same is the ancestral joint family property of the plaintiffs 1 to 3 and the first defendant. The copy of the sale deed dated 19.01.1922 has been marked as Ex.A1. The defendants' case is that Singara pathar had alienated the suit property to Subbaraya pathar under Ex.B2, sale deed dated 01.12.1922. According to the plaintiffs, Ex.B2 transaction is purely a money transaction and under the same, the property was not actually conveyed to Subbaraya pathar by Singara pathar and therefore, it is stated that only on account of the same, subsequently, the suit property had been reconveyed to the first defendant by Subbaraya pathar and his family members under the sale deed dated 11.08.1996, which has been marked as Ex.B5. As rightly found by the trial court, a reading of the recitals found in Ex.B2 would go to indicate that there is nothing found in the same to deduce that it is only a money transaction and that, there was no intention on the part of the parties concerned thereto to convey the title of the property comprised therein. Further, there is also not even any indication found in the document to the effect that the parities thereto have agreed to reconvey the property to the vendor or the vendors family. On the other hand, the recitals contained therein would only point out that it is a pucca sale transaction and accordingly, it could be seen that Singara pathar had absolutely conveyed the title of the suit property to subbaraya pathar under Ex.B2. Inasmuch as the property was acquired by Singara pathar under Ex.A1, as his self acquired property, it could be seen that he had conveyed the same to Subbaraya pathar under Ex.B2. As found supra, there is nothing to indicate in Ex.A1 that Singarra pathar had purchased the suit property under Ex.A1 out of the income from any ancestral nucleus, therefore, the contention that inasmuch Singara pathar had acquired the property under Ex.A1, therefore, the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3, as such, cannot be readily accepted. Subbaraya pathar after the purchase of the suit property under Ex.B2 had exercised full ownership thereon and it could also be seen that subsequently, under Ex.B3 settlement deed dated 27.11.1960 settled the sold property in favour of his wife Kamakshi ammal and later Kamakshi ammal had settled the property in favour of her daughter under Ex.B4 dated 30.05.1961. Now, according to the second defendant, the first defendant had been working under her father and therefore, her father had been responsible for the first defendant in purchasing the suit property from the

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real owners. According to the 2^nd defendant, the suit property was conveyed to the first defendant by Subbaraya pathar and his wife and daughter under Ex.B5 dated 11.08.1996 and therefore, it is contended that the suit property purchased by the first defendant under Ex.B5 is the self acquired property of the first defendant and not the joint family property of the plaintiffs 1 to 3 and the first defendant as claimed by the plaintiffs. On the other hand, according to the plaintiffs, all the transactions starting from Exs.B2 to 5 would only point out that they only relate to money transactions with the agreement that the suit property should be reconveyed to the family of Singara pathar and accordingly, after the execution of the various documents amongst the family members, finally, the property was reconveyed to the first defendant under Ex.B5 by Subbaraya pathar and his family members and therefore, it is only the joint family property of the first defendant and the plaintiffs 1 to 3 and not the self acquired property of the first defendant.

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However, as rightly found by the trial court, on a reading of the recitals found in Ex.B5, it could be seen that there is nothing to indicate therein to suggest that it is related to a money transaction and that the parties thereto have agreed to reconvey the suit property sold earlier under Ex.B2. As adverted to earlier, nothing has been found in Ex.B2 to suggest that it is a money transaction and that the parties have agreed to reconvey the suit property. Similarly, in the absence of any recital found in Ex.B5 to suggest that it is a money transaction and only on account of the same, it has been conveyed to the first defendant, it could be seen that Ex.B5 is an outright sale deed executed in favour of the first defendant by Subbaraya pather and his family members. Further, it could be seen that the first defendant had purchased the suit property by tendering the sale consideration of Rs.1000/- as agreed to, pursuant to the decision of the panchayatars held in connection with the above said sale transaction. Therefore, it could only be seen that there was a panchayat convened prior to the sale transaction Ex.B5 and as per the decision of the panchayatars Subbaraya pathar and family members had agreed to convey the suit property to the first defendant for a sale consideration of Rs.1000/- and accordingly, the first defendant paying the sale consideration, it could be seen that Subbaraya pathar and his family members had conveyed the title of the suit property in favour of the first defendant. Therefore, to say that the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3, based upon Ex.A1, as such cannot be accepted in any manner.

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There is nothing to indicate in Ex.B5 that the sale consideration paid by the first defendant for the purchase made thereunder has been taken out from the ancestral nucleus. At the foremost, the plaintiffs have not established that any ancestral nucleus or ancestral property was available with the family of the first defendant, at any point of time, other than the suit property. In this connection, the 4^th plaintiff examined as PW1 has admitted during the course of her evidence that she is not aware as to what had happened in the family prior to 1962 and that, she does not know directly as to how the suit property was acquired. Further, she has also admitted that she does not know the description of the suit property and does not know to whom it belonged to and she would only state that the suit property came to her husband through his father. Further, according to her, after her father-in-law, the suit property belongs to her husband and her sons. This is how PW1 has deposed about the source of title to the suit property. Therefore, it could be seen that PW1 is not aware or does not own any knowledge as to how the suit property had been acquired by the first defendant or the first defendant's family. The second plaintiff examined as PW2 during the course of his evidence has admitted that he does not know what had happened prior to 1966 and also does not know what had happened prior to his mother's marriage and the same are known only to his father and according to him, his grandfather had not alienated the suit property and his father had not purchased the suit property. Therefore, from the evidence of PWs 1& 2 , it could be seen that they are unaware as to how the suit property had been derived by Singara Pathar and whether Singara pathar had subsequently alienated the suit property to Subbaraya pathar and whether thereafter the 1^st defendant had acquired the suit property from Subbaraya pathar and others under Ex.B5. Their only version is that inasmuch the original title deed stands in the name of Singara pathar, the suit property belongs to the family of the first defendant. This is how they had put forth their case that the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3.

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In this case, the first defendant had remained ex parte. According to the second defendant, only at the instigation of the first defendant, after his conveyance of the suit property in her favour, the plaintiffs have filed the suit. In this connection, PW1 has clearly admitted that it is correct to state that only at the instigation of her husband, she and her sons had laid the suit. Further, PW2 has also in his evidence admitted that at the time of the institution of the suit, all of them including their parents were living together and therefore, as they are living in the same house, his father knew about the institution of the case. Therefore, it could be

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seen that the suit has been laid by the plaintiffs with the knowledge and at the instigation of the first defendant.

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Now, according to the plaintiffs, the first defendant is not looking after the family and a spendthrift and also a drunkard and therefore, taking advantage of his weakness, the second defendant has obtained the sale deed from the first defendant in respect of the suit property and that the first defendant is not entitled to convey the whole of the suit property in favour of the second defendant and the same would not bind the share of the plaintiffs 1 to 3 and despite the sale in favour of the second defendant, the plaintiffs are still entitled to claim partition in respect of the suit property. The above plea of the plaintiffs stems from their claim that the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3.

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PW1, during the course of her evidence, has admitted that her husband was engaged in jewellery work, even at the time of marriage, he was engaged in Jewellery work and after the marriage, they did not purchase any property. Further, she has also admitted that 6 months after the marriage, her husband started consuming alcohol, however, she has come out with the same, for the first time after the institution of the suit. PW2, in his evidence, has admitted that his mother engaged in Cooli work and none used to advance money to their father for drinking and that his father was running a shop and also doing cooli work. Further, PW2 would also state that he had not complained to any one that his father was addicted to alcohol and he has also not produced any death certificate to show that his father had died on account of the consumption of alcohol, however the neighbours knew that his father died only on account of the consumption of Alcohol. However, other than the evidence of Pws1 and 2, no one has been examined on behalf of the plaintiffs to state that the first defendant was a spendthrift, a drunkard and not looking after his family. Only, the self serving testimony of Pws 1 and 2 are available in support of the plaintiffs case. However, when it has been admitted that the suit has been laid at the instigation of the first defendant and with his knowledge and when no independent witness has been examined to show that the first defendant was addicted to alcohol and not looking after his family and on the other hand, when it is found that the first defendant had purchased the suit property under Ex.B5 by paying the sale consideration and even though the first defendant has been shown to have mortgaged the suit property for getting loans, when it has not been established that the loan amount obtained thereby had been utilised by the first defendant for immoral purposes and not for the family, it could be seen that the plaintiffs, for the purpose of the case, had projected a case, as if the first

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defendant was not looking after the family and a drunkard. If that be the true position, as rightly found by the trial court, the plaintiffs would have endeavorured to produce adequate acceptable and reliable evidence to establish the same. On the other hand, nothing has been placed by the plaintiffs to suggest or infer that the first defendant was a drunkard and on account of his weakness, the second defendant had fraudulently obtained the sale deed from him in respect of the suit property.

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From Exs.B6 to B10 it could be seen that the first defendant had mortgaged the suit property and also discharged the same and therefore, to contend that the first defendant was a drunkard and not looking after the family, cannot be readily accepted. Equally, as adverted to earlier, the loan amount received by the first defendant has not been shown to be spent by him for immoral activities. The first defendant had conveyed the suit property on 28.9.1983 to the second defendant and the same has been marked as Ex.B11. It is also not been established that the sale consideration received by the first defendant under Ex.B11 has been utilized by him for immoral activities. No doubt, the plaintiffs counsel would contend that even prior to the Ex.B11 there has been exchange of notice between the parities and despite the same, the second defendant had endeavoured to obtain the sale deed from the first defendant and this would only go to disclose that the second defendant had utilized the weakness of the first defendant and obtained the sale deed from him fraudulently. However, countering the same, it is argued by the counsel appearing for the second defendant that inasmuch the property belongs to the first defendant absolutely and accordingly, the second defendant, by tendering valid sale consideration, had acquired the sale deed from him in the manner known to law and therefore, the same cannot be challenged by the plaintiffs in any manner.

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It is argued by the plaintiffs counsel that considering the value of the property and also the sale consideration mentioned in Ex.B11, the court could infer the second defendant had fraudulently obtained the sale deed from the first plaintiff for a pittance amount. However, in this connection though PW2 would state that at the time of the sale of the property under Ex.B11, the value of the suit property is Rs.3,00,000/- would admit that there is no proof for the same excepting his version. Therefore, the contention of the plaintiffs that the value of the suit property at the time of Ex.B11 sale is on the higher side, as such cannot be accepted without any material or proof.

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It is argued by the second defendant's counsel that even assuming for the sake of arguments that the suit property is the joint family property of the first defendant and the

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plaintiffs 1 to 3, inasmuch as it has not been established by the plaintiffs that the first defendant has alienated the suit property for illegal purpose and not for the benefit of the family, the same is binding upon the plaintiffs 1 to 3 and in such circumstances, the plaintiffs are not entitled to claim partition in the suit property after the same has been conveyed to the second defendant under Ex.B11.

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Be that as it may, when the plaintiffs have miserably failed to establish that the suit property had been acquired by the first defendant under Ex.B5 with the aid of any ancestral nucleus and when there is no claim to that effect in the plaint and when the above fact has also not been established by the plaintiffs by adducing any acceptable and reliable evidence and further, when the plaintiffs have miserably failed to establish that the transactions covered under Exs. B2 to B5 are only money transactions with the agreement to reconvey the suit property to the family members of Singara pathar and when it is found that the first defendant had acquired the suit property under Ex.B5 as his separate property without the aid of the ancestral nucleus and when it is also found that the first defendant has not been shown to be a spendthrift or drunkard and not caring for his family and when it is found that the plaintiffs and the first defendant were living under the same roof and the first defendant had the knowledge and at his instigation, the suit has been laid , it could be seen that the case of the plaintiffs that the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3 has no leg to stand and therefore, the trial Court has rightly disbelieved the plaintiffs case and non suited them.

¶45

As regards the plea that the findings of the Rent Controller would operate as Resjudicata to the present suit, as rightly found by the trial Court, the rent control proceedings cannot be the basis for determining the question of title. Therefore, the trial court has rightly found that the findings rendered in the rent control proceedings would not operate as resjudicate and hence no interference is called for to the above said findings of the trial court.

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The second defendant's counsel contended that the plaintiffs cannot seek any relief in the suit property without seeking a relief to set aside the sale deed dated 28.09.1983 and therefore, on that ground also, the plaintiffs should be non suited. However, as rightly found by the trial Court, when the plaintiffs are not parties to the above said sale transaction and when according to them, the said sale deed is not binging upon them, it could be seen that the trial court has rightly held that in such view of the plaint averments, it is not necessary for the plaintiffs to seek for a declaration that the

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sale deed is null and void. No exception could be taken to the above findings of the trial Court.

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As rightly argued by the appellant counsel, the first appellate court without properly analsysing the reasonings and the conclusions of the trial court in non suiting the plaintiffs has without any basis or foundation, seems to have accepted the case of the plaintiffs for granted and therefore, it could be seen that the judgment and decree of the first appellate court could not be allowed to be stand in the eyes of law and are liable to set aside. The findings and conclusions arrived at by the first appellate court for upholding the plaintiffs case are found to be completely perverse and erroneous in law and it could be seen that the first appellate court has legally and factually flawed in not approaching the case of the parties in the right perspective and in accordance with law based upon the available evidence.

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The counsel for the defendant relied on the following decisions reported in (2004) 13 Supreme Court Cases 718 (Umar Chand Bubal V. Amba Prasad), (2006) 5 Supreme Court Cases 545 (Hero Vinoth (Minor) Vs. Seshammal), (2015) 14 Supreme Court Cases 450 (State of Madhya Pradesh Vs. Nomi Singh and another), 1996 (1) CTC 661 (P.B.Ramjee and two others Vs. P.B.Lakshmanaswamy Naidu & ten others), 2009 (6) CTC 17 (Mannarsamy Naicker (died), 2.M.Mahendran (Appellant 2 was brought on record as Lrs of the deceased- sole appellant vide order of Court dated 12.08.2008 made in M.P.(MD) No.3 of 2006) Vs. Nagammal and three others), (2011) 1 Supreme Court Cases 657 (Raj Kishore (Dead) by Lrs Vs. Prem Singh and others), (2006) 4 Supreme Court Cases 432 (Bishwanath Prasad Singh Vs. Rajendra Prasad and another), (2003) 10 Supreme Court Cases 310 (D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another), (1984) 3 Supreme Court Cases 447 (Kuppala Obul Reddy Vs. Bonala Venpata Narayana Reddy (Dead) Through Lrs) and 1969 (1) Supreme Court Cases 386 (Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh) and the counsel for the plaintiffs', in support of his case, relied on the decisions reported in AIR 1966 Supreme Court 735 (1) (Bhagwati Prasad Vs. Chandramaul), (1987) 2 Supreme Court Cases 555 (Ram Sarup Gupta (Dead) By Lrs Vs. Bishun Narain Inter College and Others), 1989 Supp (1) Supreme Court Cases 628 (Kali Prasad Agarwalla (Dead) By Lrs. And others Vs. M/s.Bharat Coking Coal Limited and others), (2006) 3 Supreme Court Cases 224 (G.Amalorpavam and others Vs. R.C.Diocese of Madurai and others), (2012) 3 MLJ 658 (Thangarasu Vs. Arumugam) and AIR 1994 Madras 123 (M.Shanmugha Udayar Vs. Sivanandam and others). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.

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In the light of the above discussions, the substantial questions of law 1, 3 and 4 are answered in favour of the appellant and against the respondents. As regards the second substantial question of law formulated, when it has been held that the plaintiffs have failed to establish that the suit property is the joint family property of the first defendant and the plaintiffs 1 to 3, the question whether the plaintiffs would be entitled to seek for partition without setting aside the sale translation Ex.B11 does not arise for consideration.

¶53

Resultantly, the judgment and decree dated 25.06.2010 made in A.S.No.10/2009 on the file of the Sub Court, Vellore, are set aside and the judgment and decree dated 05.02.2009 made in O.S.No.385 of 2005 on the file of the Principal District Munsif Court, Vellore, are confirmed and accordingly, the second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar sms To 1. The Sub Court, Vellore. 2. The Principal District Munsif, Vellore. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to M/s. T.M. Hariharan, Advocate SR.6019 + 1 cc to M/s. A.V. Ilango, Advocate SR.6342

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S. A.No.230 of 2011 and M.P.No.1 of 2011 RSK(CO) Eu 02.03.17

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Dhanalakshmi Ammal v. S.Rajendran

Case brief

What is this about?

What did the court decide?

Dhanalakshmi Ammal v. S.Rajendran

Case brief

What is this about?

What did the court decide?

What the court decided

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