High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.1.2007CORAM:-THE HONOURABLE MR. JUSTICE J.A.K. SAMPATHKUMARA.S. No. 648 of 1992Sundari alias Sundarambal.. Appellant(Plaintiff)Vs.1.Jayapathi Ammal2.Viswanatha Reddiar3.Namachivaya Reddiar4.Lakshmi Narayanan5.Santha6.Gnanavathi7.Rajarathina Kounder8.Ayyamperumal Kounder9.Ramu Reddiar10.Thanthai Periyar Transport Corporation Manager, Villupuram... Respondents(Defendants)Appeal filed against the judgment and decree of the learnedSubordinate Judge, Villupuram, dated 19.8.1985 made in O.S. No.3 of 1983.For Appellant : Mr. T.R. RajaramanFor Respondents : Mr. G. Manirathinam – R10. No Appearance – R1 to R9.JUDGMENTThis appeal is against the judgment and decree dated 19.8.1985in O.S.No. 3 of 1983 on the file of the Subordinate Court, Villupuram inand by which, the learned Subordinate Judge, after analysing the evidenceof both found that the Plaintiff is not entitled to suit claim anddismissed the suit while decreeing the suit for a sum of Rs.13052.50 only.The present appeal is filed by the plaintiff against the part dismissal.2. The brief facts of the case are as follows:-The plaint 'A' , 'B' and 'C' schedule properties belonged to oneVengatasamy Reddiar, father-in-law of the plaintiff. Vengatasamy Reddiar,his sons viz., defendants 2 to 4 and the plaintiff's husband constitute ajoint Hindu family and there was no partition in the family. Vengatasamy https://hcservices.ecourts.gov.in/hcservices/ Reddiar died in 1981. At the time of his death, the plaintiff's husbandwas entitled to 8/35 share in the suit properties. 3. The plaintiff has got a son by name Sundararajan. Hesuddenly died in the year 1980. He is also entitled to 4/35 shares inthe share of the plaintiff's husband. After the death of the child, theplaintiff became the heir of the child. Plaintiff's husband died on23.12.1981. On his death, the plaintiff is entitled to 2/35 shares andthe first defendant is entitled to 2/35 shares. So the plaintiff in totalis entitled to 6/35 shares in the suit properties. The plaint 'A'schedule properties were sold to defendants 7 and 8 for a sum ofRs.1,02,000/-. The entire amount was kept by plaintiff's father-in-law.After his death, defendants 2 to 4 are having the amount by depositing thesame in the bank. The plaintiff is entitled to 6/35 shares in the amountand the plaintiff demanded the amount by notice. The defendants gave areply stating that the amount was already divided among the sharers.Further in the sale deed, the amount was mentioned as Rs.54,500/-. Afterthe filing of the suit, the Defendants 1 to 3 purchased 'B' scheduleitems 16 to 23 out of the sale amount of 'A' schedule properties. Thefirst defendant purchased on 12.3.1983 'B' schedule 16th item for a sumof Rs.9,000/-. The second defendant purchased 'B' schedule items 7 to 15and third defendant entered into a sale agreement regarding 'B' scheduleitems 16 to 23 for a sum of Rs.22,500/- and a sum of Rs.2,500/- has beendeposited in O.S.No. 7 of 1984. The 4th defendant purchased in the nameof his wife viz., the 11th defendant 'B' schedule items 24 to 28. Theplaint 'B' schedule 5th item did not belong to 4th defendant independently.The plaint 'E' schedule jewels were given to the plaintiff at the time ofher marriage. In 1981, the 9th defendant received the jewels stating thatthey are required for pledging for the family expenses of VengadasamyReddiar. Those jewels were not so far returned. The plaintiff's husbandwas working as a conductor in the 10th defendant corporation. He is havingsome amount mentioned in 'D' schedule with the 10th defendant. Thisplaintiff as a heir of her husband is entitled to the 'D' schedule amount.The joint family amounts have been deposited in Pondicherry Indian Bankand other Banks and they are shown as 'C' schedule. Hence the suit.4. Written Statement of the second defendant adopted bydefendants 1,3,5 and 6 reads as follows:-Seventh defendant purchased certain properties for Rs.40,000/-and the 8th defendant purchased certain properties for Rs.7,500/-. Theplaintiff's husband was a party to both the sale deeds. The sale proceedswere divided among the vendors then and there. No part of the saleconsideration is payable to the plaintiff's husband. Even during thelife time of Vengadasamy Reddiar, the sons were in separate enjoyment ofthe properties. They were also divided in status. There was an oralpartition of the properties. Item 5 of 'B' schedule is not the jointfamily property. It is the separate property of the 4th defendant. Item 4of 'B' schedule has been endowed upon Shri Pidari Amman Temple.Vengatasamy Reddiar and his sons have never received the jewels either https://hcservices.ecourts.gov.in/hcservices/ from the plaintiff or from the 9th defendant. Defendants 1 to 3, 5 and 6are not bound to answer the plaintiff's claim with regard to the jewels.So far as the items 2 to 7 of 'C' schedule are concerned, these defendantshave no knowledge about the same. If there are any such deposit, thesedefendants have no objection to the plaintiff taking her share. So far asthe Provident Fund, Gratuity and Family Benefit Fund are concerned, thefirst defendant was nominated to receive the amounts. So far as theInsurance and Pondicherry Savings Bank deposits are concerned, therelevant documents are with the plaintiff. These defendants have noobjection for passing a decree for partition of the 'B' scheduleproperties except items 4 and 5 and 'D' schedule items without profits andcosts also. 5. Written statement filed by the 4th defendant reads asfollows:-Item No. 5 of 'B' schedule is not a joint family property. Itis the self acquired property of this defendant. This defendant isemployed in South Arcot Central Co-operative Bank and drawing a salary ofRs.1,000/- per month. This defendant raised loan from the Bank and alsowithdrew the amount from the Provident Fund and purchased item 5 of 'B'schedule for Rs.21,000.- on 12.9.1976. 6. The Written statement filed by the defendants 7 and 8 readsas follows:-These defendants have purchased 'A' schedule properties. 7thdefendant purchased 'A' schedule items 1 to 3 for a sum of Rs.40,000/- and8th defendant purchased items 4 and 5 for a sum of Rs.7500/-. Therefore,the suit is liable to be dismissed.7. Written statement of the 9th defendant reads as follows:-This defendant never borrowed such jewels from the plaintiff.Neither the 9th defendant nor the defendants 1 to 6 are in possession ofalleged jewels and hence, they are not answerable to the claim of theplaintiff and the suit is liable to be dismissed. 8. 10th Defendant states as follows:- As per the accounts, a sum of Rs.13,052.50 alone is due andliable to pay to the plaintiff. This defendant is ready to disburse thesaid amount to whosoever the Court directs.9. 11th defendant states as follows:-Plaint 'A' schedule properties were sold to defendants 7 and 8for a sum of Rs.45,500/-. This defendant has purchased 'B' scheduleitems 24 to 28 on 12.3.1984 for a sum of Rs.37,000/-. Her father gaveRs.19,500/- for the purchase and this defendant bought loan from the LandImprovement Bank a sum of Rs.7,500/-. Further, this defendant has soldher jewels for a sum of Rs.10,000/-. Hence, items 24 to 28 of 'B'schedule are self acquired properties of this defendant. Therefore, thesuit is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

10. Plaintiff / Sundari was examined as P.W.1, one Mr.Lakshminarayanan was examined as P.W.2 and Viswanath was examined asP.W.3. Exs. A1 to A9 were marked on the side of the plaintiff. Defendants1,2,3,4,7,8,11 and 9 were examined as D.Ws. 1,2,4,5,6,7,8, and 9respectively. One Mr. Narayanasamy was examined as D.W.3. Exs. B1 to B24were marked on the side of the defendants to confront the claim of theplaintiff. The lower Court after analysing the evidence in depth,decreed the suit in respect of 'D' schedule while rejecting other reliefas there was no property available for partition as stated by theplaintiff. 11. Heard Mr. T.R.Rajaraman, learned counsel for the appellantand Mr.G. Manirathnam, learned counsel for the tenth respondent.12. Upon hearing the rival claims, the only point forconsideration is whether the properties referred in the plaint isavailable for partition as prayed for by the plaintiff?13. No doubt, it is true that one Vengatasamy Reddiar, is theabsolute owner of the 'A' schedule properties. There is no disputeregarding the same. It is also true that 'A' schedule properties weresold to defendants 7 and 8 under Exs. B1 and B2. There is no dispute withregard to this factor also. It is the case of the plaintiff that herhusband being a signatory to Exs.B1 and B2, not received his due share inthe sale consideration. It is the case of the respondents that thehusband of the plaintiff being a signatory to the sale deeds viz., Exs. B1and B2, received his due consideration out the sale proceeds and as such,the Plaintiff cannot maintain the suit. There is ample evidence to showthat 'B' schedule properties are the self-acquired properties of thesecond defendant. The plaintiff has not filed any record to show that 'B'schedule properties are not self-acquired properties of the seconddefendant. The lower court has rightly dismissed the claim of theplaintiff with regard to the 'B' schedule properties. Similarly, theplaintiff has not filed any document as a proof for 'C' scheduleproperties as a joint family properties. In such view of the fact, thelower court, has rightly rejected the claim of the plaintiff with regardto 'C' schedule properties also. Similarly, the plaintiff miserablyfailed to prove that the properties referred to in 'E' and 'F' scheduleare belonged to joint family properties. In such view of the fact, thelower Court has rightly rejected the claim of the plaintiff in thisregard. Though the plaintiff contended that her husband being a signatoryto Exs.B1 to B2, not received his due share, she has not proved the same.The learned counsel for the appellant, at the time of argument fairlyconcedes that there is no proof that the husband of the plaintiff has notreceived his share from the sale proceeds of Exs. B1 and B2. In suchview of the matter, the lower court was right in dismissing the claim ofthe plaintiff with regard to the 'A' schedule properties also . From thenarration of the events, I am satisfied that the finding of the lowercourt in this regard is in order and does not require any interference. https://hcservices.ecourts.gov.in/hcservices/

14. In the result, this appeal is dismissed. The partieshave to bear their own costs.raSd/-Assistant Registrar,/ture copy/Sub Assistant Registrar.To1.The Subordinate Judge,Villupuram. 2. The Record Keeper, V.R. Section, High Court, Chennai.+ One cc to Mr. G. Munirathnam Advocate SR 1526JSK (co)sg 13/2/07A.S.No. 648 of 1992Date: 08.1.2007