Dismissed

Dhanabal v. Srinivasan

Madras HC22 Oct 2021AS/520/2018

Case brief

AI extract

What is this about?

Appeal dismissed challenging a partial decree ordering partition of suit 1st property. Court upheld lower court's finding that plaintiff, though named in sale deed, contributed nothing to purchase or development compared to co-defendants who funded the loan and construction, warranting exclusive ownership for the latter regarding that specific item.

What did the court decide?

Judgment and decree of the III Additional District Judge, Salem dated 16.11.2017 confirming the decree is maintained and appeal is dismissed. No order for cost.

Dhanabal Vs Srinivasan — Partition | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.10.2021 CORAM:

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THE HONOURABLE MS.JUSTICE P.T.ASHA

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A.S.No.520 of 2018

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1.Dhanabal

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2.Ravichandran 3.Rajendran P.R. Narayanaswamy (deceased) 4.N.Nagalakshmi ...Appellant/Defendants 1 to 3 and 5

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Srinivasan ...Respondent/Plaintiff

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PRAYER Appeal Suit filed under Section 96 of the Code of Civil Procedure to set aside the Judgement and decree dated 16.11.2017 passed by the learned III Additional District Judge, Salem in O.S.No.185 of 2014 partially decreeing the suit for partition in respect of Item No.1 of the Suit Schedule Property.

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For Appellant : Mr.M.Devaraj For Respondents : Mr.P.Hari babu for sole respondent

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JUDGMENT

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The defendants have filed this appeal challenging the judgment and decree passed by the learned III Additional District Judge, Salem in OS.No.185 of 2014. Parties are being referred to in the same rank as before the Trail Court for an ease of understanding.

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2.The said suit is filed by the 1^st respondent herein seeking a partition and separate possession of his 1/4^th share in the suit 1^st item of property and 1/5^th share in the items 2^nd and 3^rd of the suit schedule properties. The suit has been decreed only with reference to the 1^st item of suit property and dismissed with reference to the items 2^nd and 3^rd of the suit schedule properties.

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3.The facts which has culminated in the filing of the above appeal is herein below narrated and parties are referred to the same litigative status as before the District Court.

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4.The plaintiff and defendants 1 to 3 are siblings. The 4^th and 5^th defendants are their father and mother respectively. The 5^th defendant was added as a party to the proceedings on the death of the 4^th defendant. It is the case of the plaintiff that the suit 1^st item of the property has been purchased jointly in the name of the plaintiff and defendants 1 to 3 herein and they have been in joint possession and enjoyment of the same. The plaintiff and the defendants were running a power loom jointly and out of the said business, they have purchased the 2^nd and 3^rd items of the suit scheduled properties in the name of the 4^th defendant.

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5.It is the case of the plaintiff that the 4^th defendant who was aged 81 years had no independent occupation or separate business income and he had not earned any amount separately to purchase the 2^nd and 3^rd items of the schedule properties. The plaintiff would therefore submit that he is entitled to a share in all the properties. Since the defendants were not coming forward to partition the property, he was constrained to issue a legal notice on 28.07.2014 which, though received by defendants, was not responded to nor the partition effected.

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6.Pending the suit the 4^th defendant had died leaving behind him surviving the plaintiff and defendants 1 to 5. Since, the defendants were not coming forward for a partition, the plaintiff filed the above suit.

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7.The 1^st defendant filed a written statement which has been adopted by the 2^nd and 3^rd defendants wherein they contented that, as regards the 1^st item of the suit property it was purchased out of the loan borrowed from the bank, financial institution and private parties by the defendants 1 to 3 who had spent huge amounts to develop the property and to settle the debts. It is therefore their specific case that although the property was purchased in the name of the plaintiff as well, the plaintiff had not contributed any amount towards this purchase nor towards its development. Hence, they would contend that the plaintiff is not entitled to any share in the 1^st item of the suit property.

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8.As regards the other items, their contention is that the father/4^th defendant was a textile manufacturer and merchant engaged in huge textile business and out of his own earnings, he had purchased 2^nd item of the suit property under a registered sale deed dated 04.05.1994 and constructed 24 houses in the 2^nd item of the suit property by obtaining loan from the LIC Housing finance Ltd. Though the plaintiff and defendants 1 to 3 and

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their respective wives stood as guarantors to the loan, it is the 1^st defendant who was paying the monthly instalments to the LIC Housing finance Ltd out of his own income. Since, the 1^st defendant was paying the loan, the 4^th defendant had bequeathed the 2^nd item of the suit property in favour of this defendant under a registered will dated 24.12.2012 which came into effect on the demise of the 4^th defendant. The 4^th defendant had purchased the 3^rd item of the suit property out of his own earnings under the registered Sale deed dated 08.02.2006 in which he constructed houses in the said property by borrowing loans from financial institution and private parties. The 3^rd item of the property was also settled on the 1^st defendant under registered Gift Settlement deed dated 04.08.2014 and the possession was also handedover to the 1^st defendant. Therefore the 3^rd item of the property is also not available for partition. Hence, the plaintiff is not entitled to any share in the same.

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9.The 1^st defendant is running three power loom factories in his own properties and the 3^rd defendant is running a power loom factory in the land standing in his name. Therefore it only the 1^st and 3^rd defendant who are running power loom in their respective properties. The plaintiff had never run the power loom factory along with the defendants 1 and 3. It is also the case of the defendants that they and the plaintiff were living separately in separate houses and have acquired properties separately and hence, there is no joint status between the parties. Therefore they sought to have the suit dismissed.

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10.After the 5^th defendant was impleaded, an additional written statement came to be filed reiterating the contentions in the original written statement.

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11.The III Additional District Judge, Salem had framed

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the following issues:-

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1.Whether the plaintiff is entitled for 1/4^th share in the 1^st item of suit property as prayed for ?

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2.Whether the plaintiff is entitled for partition as 1/5^th share in the 3^rd item of the suit property as prayed for ? 3.Whether the plaintiff is entitled for permanent injunction as prayed for ?

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4.To what other relief ?

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5.Whether the 3^rd item of the suit property absolutely belong to the 1^st defendant by way of settlement deed dated 04.08.2014 ?

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6.Whether the 2^nd item of the suit property absolutely belongs to 1^st defendant by way of registered Will dated 24.12.2012 ?

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The learned III Additional District Judge on perusing both the documentary and oral evidence came to the conclusion that 2^nd and 3^rd items were the exclusive properties of the 4^th defendant and considering the Will settlement deed held that the 1^st defendant was entitled to the 2^nd item of the property exclusively and the plaintiff had no right to the same. Likewise in respect of the 3^rd item of the property the learned District Judge had considered the settlement deed Exhibit B8 executed by 4^th defendant in favour of the 1^st defendant held that the 2^nd item of the property also belonged to the 1^st defendant and therefore rejected the claim of the plaintiff with reference to the suit items 2 and 3. However, as regards the suit 1^st item of the property, the learned Judge held that since, the property had been purchased in the name of the plaintiff and defendants 1 to 3, the plaintiff was entitled to 1/4^th share in respect of the suit property.

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12.The plaintiff has not challenged the disallowed portion of the decree and therefore the suit attained finality with regard to items 2 and 3. The defendants have challenged the decree only in respect of the 1^st item of the suit property.

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13.Mr.M.Devaraj, the learned Counsel who appeared on behalf of the appellant would submit that though the land in the 1^st item of the suit property has purchased in the name of the plaintiff, however, the defendants have borrowed the loan for putting up construction and for the development of the said property. This loan has been incurred only by the defendants and the plaintiff had not contributed a single penny to the same. Therefore, the plaintiff is not entitled to any share in the said properties.

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14.He would further argue that the plaintiff has not established his contention that he has contributed for the purchase of the land in the 1^st item of the suit property and therefore not entitled to any share in the same. That apart, he was never in enjoyment of item 1 of the suit property and only the defendants are in the enjoyment and possession of the said properties.

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15.The learned Counsel appearing for the plaintiff /respondent would submit that the document under which the property had been purchased namely Exhibit A1 clearly shows that the plaintiff is also not entitled to any share in the properties and according to him, the decree passed is right in respect of the 1^st item of the suit property.

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16.On hearing the Counsels, the only point for consideration in the appeal is that, 'Whether the findings of the Court below regarding suit 1^st item of property is correct?'

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17.In the Written statement filed by the 1^st defendant which has been adopted by the defendants 2 and 3, the defendants have stated as follows,

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“The 1^st item of the suit properties was purchased out of the loan borrowed from bank, financial institutions and private parties by the defendants 1 to 3. The defendants 1 to 3 spent huge money to develop the said property and settled the debts received for purchasing it. Though the sale deed stands in the name of the defendants 1 to 3 and the plaintiff, the plaintiff has not contributed any amount during the purchase of the said property and he has not spent any amount to improve the said property. Hence the plaintiff is not entitled to any share in the 1^st item of the suit property.”

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Therefore, a reading of the above would clearly prove that suit 1^st item of the property is also purchased in the name of the plaintiff and therefore the plaintiff is entitled to a share in the said property. Exhibit A1 is the document under which the property has been purchased and a perusal of the same, would clearly prove that the said property has been purchased in joint name of the plaintiff and defendants 1 to 3.

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18.In the above circumstances, there cannot be any quarrel in the findings of the Court below and accordingly the appeal stands dismissed. The Judgment and decree passed by the learned III Additional District Judge, Salem in OS.No.185 of 2014 is therefore confirmed. However, considering the circumstances, there shall be no order to cost. Consequently, connected Miscellaneous Petition is also closed.

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Sd/Assistant Registrar(CS-II)

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//True Copy//

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Sub Assistant Registrar

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gd To

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The III Additional District Judge, Salem

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Copy to The Section Officer VR Section High Court, Madras 104. +1 CC to Mr.M.Devaraj, Advocate sr 54412 +1 Cc to Mr.R.Tholkappiyan, Advocate sr 54174

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A.S.No.520 of 2018

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PA(CO) SP(06/01/2022)

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Dhanabal v. Srinivasan

Case brief

What is this about?

What did the court decide?

Dhanabal v. Srinivasan

Case brief

What is this about?

What did the court decide?

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Statutes considered

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