Appeal by property purchasers against preliminary decree in partition suit. Court held purchased property is joint family property; minor daughter gets 1/2 share. Purchasers validly bought the remaining 1/2 share from the father.
Preliminary decree modified; minor plaintiff entitled to 1/2 share; sale to appellants valid for remaining 1/2 share.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.No.286 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.286 of 2016
and C.M.P.No.5062 of 2016
Versus
Prayer : Appeal Suit filed under Section 96 r/w Order XLI Rule 1 of Civil Procedure Code to set aside the judgment and decree, dated 08.10.2015 passed in O.S.No.18 of 2014 by the learned I Additional District Judge, Erode.
For Appellants : Mr.A.Prabakaran for Mr.K.Muthu Ganesa Pandian
For Respondents : Mr.Kaithamalai Kumaran, for R1 R2 minor rep. by R1 RR-3 to 5 - Notice served
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A. The Appeal Suit :
JUDGMENT
This Appeal Suit is filed against the judgment and decree, dated 08.10.2015 passed by the learned I Additional District Judge, Erode, in O.S.No.18 of 2014, in and by which, the suit, filed by the plaintiffs for partition in respect of two items of the suit properties, was allowed and a preliminary decree granting 2/6th share to the second plaintiff in the item No.1 of the suit properties and 1/2 share in the item No.2 of the suit properties, besides, directing the first defendant to pay maintenance of a sum of Rs.5,000/- per month to the first plaintiff and also creating a charge over the share of the first defendant for regular payment of the maintenance to the first plaintiff and granted permanent injunction restraining the defendants, their men and agents from in any manner alienating or encumbering the suit properties till final partition is effected.
the suit schedule property are on appeal before this Court inasmuch as the impugned judgment and decree grants a preliminary decree of 1/2 share in the item No.2 of the suit properties in favour of the second plaintiff.
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B. The Plaint :
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property. While so, on 08.03.2002, a portion of the ancestral property was sold by the first defendant, Arjunan , the second defendant, Sellammal and the third defendant, Malleeswari and out of the said funds, another property was purchased which is described as item No.2 of schedule properties in the plaint. The property was purchased a day prior to the sale i.e., on 07.03.2002. While so, in or about the year 2010, the relationship between the first plaintiff-wife and the first defendant-husband got strained and the plaintiff and her daughter/the second plaintiff were sent out of the house. In order to leave the first plaintiff and the minor daughter in lurch, the first defendant had sold the property to the defendants 4 and 5. Hence the suit.
C. The Written Statement :
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partition deed, it was his self-acquired property and after his life time, Arjunan inherited the same along with Sellammal and Malleeswari under Section 8 of the Hindu Succession Act, 1956. Therefore, item No.1 of the schedule properties cannot be termed as ancestral properties. In any event, the title to the item No.2 of the schedule properties stands in the name of Arjunan alone, he having purchased the same by a sale deed, dated 07.03.2002. Thereafter, for a valid and proper consideration, the property was sold to the defendants. They are in possession and enjoyment of the same. They are bonafide purchasers entitled to equity. The suit is filed only to defeat their rights.
D. The Issues :
issues:-
1. Whether the 'D' schedule properties has been already allotted to the share of one Nachimuthu who is the father of D1, 3 and husband of D2 through registered partition which is effected on 9.11.1966 among with his brothers as alleged?
2. Whether the suit is bad for non joinder of necessary parties?
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3. Whether the D4 and D5 are the bonafide purchasers for a valuable consideration in respect of the Item No.2 of the schedule property as alleged?
4. Whether the 2nd plaintiff is entitled for partition of respective shares in the plaint 1, 2 items of schedule properties by metes and bounds as prayed for?
5. Whether the 1st plaintiff is entitled for the life time maintenance amount of Rs.5000/-p.m. from the 1st defendant as prayed for?
6. Whether the 2nd plaintiff is entitled for the injunction relief against D1 to D5 as prayed for?
7. What other reliefs the plaintiffs are entitled for?
8. What order as to costs?
Additional Issues :
1. Whether the suit properties are the ancestral properties or the individual properties of D1?
2. Whether the sale deed dated 3.10.2013 in favour of D4 and D5 is binding in nature to P2 as alleged?
3. Whether the suit is collusive one? or
not?
E. The Evidence :
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to B-3 were marked.
F. The Findings of the Trial Court :
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nucleus and as such, held that the item No.2 of the suit properties is also coparcenary property and held that the minor Deepika is also entitled to a share in the said property. The Trial Court further held that the purchase of the defendants 4 and 5 is not bonafide and that they are not entitled to any equity. Aggrieved by the same, the present Appeal Suit is laid by the defendants 4 and 5.
G. The Submissions :
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properties was independently purchased by Arjunan , it cannot be said to be an ancestral property. Further, it can be seen that under the sale deed, dated 08.03.2002, the total sale consideration received was only Rs.3,14,000/- and
even in the sale deed itself, multiple purposes are mentioned like family expenses etc., and purchase of another property is also mentioned as one of the purposes. On the other hand, a perusal of the deed of purchase by Arjunan , dated 07.03.2002, would reveal that the total sale consideration is Rs.4,27,000/- and therefore, by a mere recital contained in Ex.A-5 alone, it cannot be held that that the properties will be ancestral in nature. The finding of the Trial Court that the appellants' purchase is not bonafide is without any material and therefore, they will be entitled to equity.
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defendant had any independent income. Therefore, once the item No.1 of the suit properties and the larger extent which was also sold are proved to be ancestral property, then the item No.2 of the suit properties, which is purchased out of the said nucleus, has rightly been held to be of joint family property and a share has been allotted to the second plaintiff, minor Deepika . He would further submit that even in the plaint, it is pleaded that the sale is collusive and only to defeat the rights of the minor after the relationship got estranged in the year 2010. The sale was effected on 30.10.2013 and immediately upon coming to know of the same, the suit was filed in the year 2014 itself. Therefore, he would submit that the Trial Court has rightly decreed the suit and he has no objection whatsoever in granting the defendants 4 and 5, the protection as to the 1/2 share which belongs to the first defendant.
H. Points for consideration :
perusing the material records of the case, the following questions arise for consideration:-
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(i) Whether the item No.2 of the suit schedule property is the separate/self-acquired property of the first defendant, Arjunan and whether the second plaintiff is entitled to claim a share in the said property even during the life time of the first defendant, Arjunan ?
(ii) If the second plaintiff is entitled to a share in the item No.2 of the suit properties, whether or not the purchasers namely, the defendants 4 and 5 are entitled to protection being bonafide purchasers and if so, to what extent?
I. Question No.1 :
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purchased out of the joint family nucleus, has the character of joint family property. Even if the entire sale consideration cannot be said to be from and out of the sale deed, dated 08.03.2002, still, even if a portion of the sale consideration is proved to be from and out of the joint family nucleus and when the parties have thrown their independent income or property along with joint family property, the character of the property will only be the joint family property and therefore, to that extent, the findings of the Trial Court that the item No.2 of the suit properties is the joint family property, purchased from and out of the joint family nucleus, cannot be found fault with and I also hold accordingly. In view thereof, the second plaintiff, being the daughter, is entitled to a share in the item No.2 of the suit properties by her birth. Therefore, in the absence of claim from the sister of Arjunan namely, the third defendant and since it is represented that she has no claim against her brother by the learned counsel appearing on behalf of the first defendant, the second plaintiff will be entitled to 1/2 share and the first defendant will be entitled to 1/2 share. I answer the question accordingly.
J. Question No.2 :
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K. The Result :
on the file of the learned I Additional District and Sessions Judge, Erode
shall stand modified inasmuch as the clause (ii) & (iv) relating to the second item of the suit property is concerned as follows:-
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respect of the remaining 1/2 share; and similarly;
01.12.2022
Index : yes Speaking order grs
To
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D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.286 of 2016 and C.M.P.No.5062 of 2016
01.12.2022
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3 issues framed by the court
Whether Item No.2 of the suit property, purchased by the first defendant, is joint family property or his separate property?
Whether the purchasers (appellants) are entitled to protection as bona fide purchasers to the extent of the first defendant's share?
Whether the minor daughter is entitled to a share in the joint family property by birth?
2 provisions across 2 enactments
P.Eswaramoorthy
E.Palaniammal
Kumudham
Minor Deepika
Arjunan
Sellammal
D.BHARATHA CHAKRAVARTHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
