Plaintiffs sought partition alleging suit properties were ancestral joint family properties acquired by Kuppusamy Gounder from joint family funds. Courts below found no proof of a joint family nucleus and dismissed the suit. The High Court declined to interfere with concurrent findings under Section 100 CPC and dismissed the second appeal.
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SA.No.1334 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30-10-2024
PRONOUNCED ON : 07-11-2024
CORAM
THE HONOURABLE MR.JUSTICE M. JOTHIRAMAN
SA.No.1334 of 2007
2. Sivagami Ammal
(2nd appellant LRS of the deceased as per memo dated 14.09.2011 (SR.No.80050) vide dated 23.07.2021 made in SA.No.1334 of 2007
… Appellants / plaintiffs
V.
1.Krishnan
Varatha Ammal (died)
Gopal (died)
Dhanapal (died)
Chinakulandai (died)
2.Karapayi Ammal
3.D.Raja Manickam
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4.Dhanabaggiam
5.D.Kasi 6.Andal 7.D.Sekar 8.Rohini Ammal 9.Ravi 10.Mohan 11.Kannagi 12.Mani 13.Ramamurthy 14.Chinnaponnu 15.Yesoda ... Respondents / defendants
Prayer : This Second Appeal is filed under Section 100 of the Code of Civil Procedure 1908 against the judgment and decree dated 11.01.2007 made in AS.No.69 of 2006 on the file of Principal District Court, Vellore confirming the judgment and decree dated 28.10.2005 made in OS.No.1579 of 2004 on the file of the Principal District Munsif, Vellore.
For appellant : M/s.A.S.Manisha for Mr.T.R.Rajaraman
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For Respondents : Mr.B.Harish for La Law
SA.No.1334 of 2007
J U D G M E N T
The instant second appeal is filed at the instance of the plaintiffs. The respondent herein are the defendants before the trial Court. For the sake of convenience, the parties will be referred to according to their litigative status before the trial Court.
The plaintiff case is in brief :-
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2(i) After the death of Parama Gounder his elder son Kuppusamy Gounder was in enjoyment of the property and affairs of the joint family. The Kuppuswamy Gounder sold the above said properties for himself and on behalf of his family members to one Molavu Gounder on 17.12.1934. On the same day, purchased the suit properties from and out of the sale proceeds and with joint family funds under two sale deeds. The suit properties are treated as joint family properties of all five brothers. The first plaintiff's husband died leaving behind the first plaintiff and the second plaintiff to succeed his share of the property. The defendants 1 to 5 celebrated the marriage of the 2nd plaintiff in the year 1979. The suit properties were not divided, Kuppusamy Gounder died in the year 1966, leaving behind the defendants 1 and 2 as his heirs. The plaintiffs have issued legal notice dated 05.03.1985 for claiming partition.
The case of the defendants in brief :-
are the separate properties of Kuppusamy Gounder in the year 1934, he
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sold the properties to Molavu Gounder and purported to execute the sale deed as Guardian of younger brothers. On 17.12.1934, Kuppusamy Gounder purchased items 1 to 3 of the suit properties under two sale deeds, but no part of consideration for this acquisition was paid from and out of the sale proceeds of the said Mulavu Gounder and consideration for purchase was made out of executing promissory deed, mortgage deed and by undertaking to pay debt due of the vendor Lakshmana Gounder to Palani Kuppu Chettiar. Item 4 and 5 of the suit properties were purchased by Kuppusamy Gounder from exclusive funds earned by him. The brothers were not living together and they were living separately and there is no joint family nucleus. The defendants 2 to 5 are in possession of the suit property of the defendants, all the defendants have made improvements in the suit properties and they have all perfected title for open, continuous and adverse possession.
issues :-
(i)Whether the plaintiff is entitled for
preliminary decree for partition as prayed for?
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(ii)Whether the suit properties are the
separate properties of Kuppusamy Gounder?
(iii)Whether the defendants have perfected to
their title to the suit properties by adverse possession?
(iv)Whether the suit is not valid properly?
(v)Whether the suit is not properly valued and
the Court fee paid is incorrect?
(vi)To what relief the plaintiff is entitled?
plaintiff herself examined as PW1 and Ex.A1 to 12 were marked. On the side of the defendants, the first defendant himself examined as DW1 and Ex.B1 to B68 were marked.
Findings of both Courts below :-
documentary evidences and the submissions on either side has finding
that it is evident from Ex.A11 sale deed that it has been mentioned the
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father name of Parama Gounder as Uthandi Gounder and in Ex.A12 sale deed the father name of Parama Gounder is shown as Chinnaiya Gounder. Thus, the father name of Parama Gounder as mentioned in Ex.A11 and Ex.A12 are different persons and no persons connected with the sale deed have been examined by the plaintiff side. From Ex.B16 to B45, it is evident that the father of the Parama Gounder name is Chinnaiya Gounder. The plaintiffs have failed to prove that S.Nos.22/1 and 22/2 are joint family properties and also failed to prove the income derived from S.No.22/4 and the same cannot be considered as joint family properties. It is also finding that the defendant have not filed any documents to prove that they are in possession of the suit properties and in the absence of the any documentary evidence, it is not safe to decide whether the defendants have perfected title on suit properties and dismissed the suit. Being not satisfied with the decree and judgment of the trial Court, the plaintiffs have preferred the first appeal. The first appellate Court on reappraising of evidences and documents comes to a conclusion that there is no infirmity in the findings rendered by the trial Court and dismissed the appeal. Aggrieved with the concurrent findings of the Courts below, the plaintiffs are before this Court by way of this
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Second Appeal.
“ (i) Whether the Courts below right in nonsuit the plaintiffs especially when the existence of joint family properties have been established and no plea of ouster is made by the defendant?
would submit that the first appellate Court failed to consider that the evidence of the plaintiffs, which clearly proves that the plaintiffs predecessor in title viz., Parama Gounder had ancestral property and the eldest son of Parama Gounder viz., Kuppusamy Gounder looked after the properties, after the demise of Parama Gounder. It is also failed to consider that the first defendant as DW1 categorically admitted the existence of the joint family property and in the said circumstances unless a plea of ouster is made on the side of the defendants, the plaintiff cannot be non suited. In the absence of any evidence on the side of the
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defendants to establish that the properties were purchased out of self earning of deceased Kuppusamy Gounder, it cannot be held that the properties are self acquired properties of deceased Kuppusamy Gounder therefore the findings are erroneous and unsustainable. It was also contended that when the defendants 1 and 2 have executed three settlement deeds in favour of the defendants 3 to 5, clearly go to show that the properties are the joint family properties, when the defendants admitted the existences of joint family properties and further purchase of the property immediately after selling one of the joint family properties, no other conclusions can be arrived at except that the properties purchased are joint family properties. To strengthen her contention, the learned counsel for the appellant has relied on the judgment of the Hon'ble Apex Court reported in 2015 (11) SCC 269 – Shasidhar and others V. Ashwini Uma Mathod and another , wherein it has been held that “ in a suit filed by cosharer, coparcener, coowner or joint owner as the case may be, for partition and separate possession of his/her share, it is necessary for the Court to examine in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source acquired such
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properties. Secondly, how the devolution of interest in the property took place.”
defendants/respondents would submit that suit properties are not ancestral properties. All the properties were acquired by Kuppusamy Gounder on his own earnings or by borrowing and no part of the purchase money was provided by any family fund. The deceased Kuppusamy Gounder had cherished to desire to give some properties to defendants 3 to 5. But as he could not himself execute and register a document, he directed his wife and son should give exgratia a share in these properties to his surviving brothers. He would submit that in pursuance of the said directions of the deceased Kuppusamy Gounder, out of love and affection and as a provision for them, defendants 1 and 2 conveyed a share in the properties to defendants 3 to 5 by three separate registered settlement deed in the year 1970 viz., Ex.B61 to Ex.B63. Concurrent factual findings rendered by both the Courts below cannot be interfered by this Court by invoking Section 100 of C.P.C.
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made by either side and perused the materials available on record.
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Gounder is Chinnaiya Gounder, it relates to S.No.22/2. Admittedly, under Ex.A4 sale deed dated 17.12.1934 the properties in S.Nos.22/1, 22/2 and 22/4 have been sold.
sale was paid on the debts due of vendors to one Palani Kuppu Chettiar and no amount was received in cash. Though sale deed had been executed on 17.12.1934 and the same has been registered only on 19.02.1935. A perusal of Ex.B3 sale deed dated 17.12.1934 shows that Kuppusamy Gounder has purchased a part of items 1 to 3 of suit properties from Chinnaiya Gounder for Rs.620/- and the same was paid in cash and by execution of pronotes in favour of the vendor for Rs.100/-. Ex.B3 executed on 17.12.1934 has been registered only on 23.02.1935. Ex.B1 and Ex.B3 though executed on 17.12.1934 and they have been registered only in the month of February 1935 and the consideration amount have not though actually paid by Kuppusamy Gounder. A perusal of Ex.B3 and Ex.B4, shows that Parama Gounder had debts and Kuppusamy Gounder discharged the same. When a property stands in
the name of a member of the joint family and if the family possess joint
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family property, the plaintiff must prove that the joint family properties were yielding income to acquire more properties. The plaintiffs have not produced any documents to prove that S.Nos.22/2 lands have fetched certain amount of income.
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respectively, in those documents it has been stated that the suit properties absolutely belong to Kuppusamy Gounder and he had told his wife and sons to settle the properties to his brothers out of love and affection.
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have not let in proper evidence to prove that the suit properties were purchased out of joint family nucleus.
Reddy (Dead) by LRs & Ors. AIR 2020 SC 1912 has held as under:
"25. The question as to whether a substantial
question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported
as Karnataka Board of Wakf v. Anjuman-E-Ismail
Madris-Un-Niswan - (1999) 6 SCC 343 , it was held
that findings of the fact ncould not have been interfered within the second appeal. This Court held
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as under:
12.This Court had repeatedly held that the power
of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu -
1996 3 SCC 392), this Court held:
It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of
Code of Civil Procedure. The Single Judge of the
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High Court totally misconceived his jurisdiction
in deciding the second appeal Under Section 100
of the Code in the way he did.
14. In Navaneethammal v. Arjuna Chetty –
1996 6 SCC 166) , this Court held: Interference with
the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by
the first appellate court was based on no material."
advanced by the learned counsel appearing for the plaintiff / appellant is not having substance at all. The ruling relied by the learned Counsel for
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the appellant is also not supported, as the facts are not similar. All the substantial questions of law formulated in the present second appeal are answered in favour of the defendants/respondents and altogether the present second appeal deserves dismissal.
07.11.2024
Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order Neutral Citation : Yes/No tsh To 1.The Principal District Court, Vellore 2.The Principal District Munsif, Vellore.
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M. JOTHIRAMAN, J.
tsh
Pre Delivery Judgment in SA.No.1334 of 2007
07.11.2024
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2 issues framed by the court
Whether the courts below erred in non-suiting plaintiffs claiming partition despite alleged joint family property and absence of an ouster plea.
Whether suit properties were joint family/ancestral properties or separate acquisitions of Kuppusamy Gounder.
Colour shows how this judgement treated each authority
Shasidhar and others V. Ashwini Uma Mathod and anotherDistinguished¶21
2015 (11) SCC 269 · Who else cites this
C.Doddanarayana Reddy (Dead) by LRs & Ors. v. C Jayarama Reddy (Dead) by LRs & Ors.Relied on¶20
AIR 2020 SC 1912 · Who else cites this
1 provisions across 1 enactments
Anusuya Ammal (died)
Sivagami Ammal
Krishnan
Karapayi Ammal
D.Raja Manickam
Dhanabaggiam
M. Jothiraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
