High Court · 2007

6IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 10.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No.682 of 1993andC.M.P.No.10710 of 19931.Saroja2.Santha3.Gopikrishnan... Appellants/Defendants 1 to 3Vs.1.Saraswathi2.N.L.N.Lakshmanan Chettiar3.N.L.Valliammal... Respondents/Plaintiff/Petitioners 4 to 5PRAYER: First Appeal against the Judgment and decree of the subordinateCourt, Virudachalam dated 17.03.1993 and made in O.S.No.9 of 1988. For Appellants: Mr.L.Kishore for M/s.K.Sridhar For Respondents : Mr.D.J.Venkatesan for M/s.V.RaghavachariJ U D G M E N TDefendants 1 to 3 in the Trial Court are the appellants. The firstrespondent has filed the suit for partition and separate possession of herone third share in the suit property, numbering six items all situated atKallakurichi. The plaintiff’s case is that the plaintiff and first andsecond defendants are sisters and they are the daughters of Devagiammaland Venugopal Naidu. The third defendant is the son of the firstdefendant. The said Devagiammal died intestate without male issues on10.02.1974 and Venugopal Naidu also died on 24.12.1980. The suitproperties were acquired by Devagiammal who was in possession andenjoyment till her death. 2. Item No. 1 of the suit property was purchased by Devagiammal on08.06.1949 under a sale deed marked as Ex.A.1 and that was a thatchedhouse and she has also obtained the adjacent 6 ft. North to South 110 ftEast to West land from Subrayalu Naidu her maternal uncle. https://hcservices.ecourts.gov.in/hcservices/ Item No.2 was purchased by Devagiammal under a sale deed dated17.07.1965 marked as Ex.A.2. Item No.3 and 4 were purchased under a sale deed dated 11.05.1966marked as Ex.A.3.Item No.5 was purchased under a sale deed dated 17.01.1967 marked asEx.A.4 and Item No.6 was purchased under a sale deed dated 01.03.1971 byDevagiammal marked as Ex.A.5. Thus all the six items of properties were purchased by her own money andshe had been in possession and she has also put up the terraced house.After death of Devagiammal the plaintiff and defendants 1 and 2 along withDevageammal’s husband Venugopal Naidu were each entitled for one fourthshare. After the death of Venugopal Naidu who is the father, the firstdefendant being the elder daughter was managing the property. Theplaintiff, defendants 1 and 2 were in joint possession of the suitproperty except item No.2 which has been excluded from the plaintiff’spossession. On the death of Venugopal Naidu the devolution of share hasbecome one third. In spite of the request by the plaintiff, thedefendants 1 and 2 who have been enjoying the property have not heeded tothe request. The 4th and 5th defendants appeared to have purchased itemNo.2 from defendants 1 to 3 and according to the plaintiff this will notaffect her share. 3. The first and second defendants have filed the written statement,as adopted by the other defendants, denying the averment of the plaintiffstating that Devagiammal had no independent property and she had no incomeof her own. It was Venugopal Naidu, who was an agriculturalist and alsoconducting a Transport Company, due to the reason that he has incurred lotof debts in his business to avoid the creditors has purchased theproperty in the name of his wife. It was Venugopal Naidu who has paid theentire sale consideration in respect of those purchases. Since VenugopalNaidu had no male issues he has adopted his daughter’s son the thirddefendant on 06.02.1976 under a deed of adoption marked as Ex.B.1 and theadoption was given by the mother of the third defendant, namely, the firstdefendant along with her husband Chakrapani on performance of rituals.The said Venugopal Naidu by a will dated 02.06.1978 marked as Ex.B.2 hasbequathed his property in favour of the third defendant. Therefore, theplaintiff has no right. It is also denied that the plaintiff was in jointpossession. 4. The plaintiff in the reply statement denied the adoption of thethird defendant and also questioned the validity of the will stated tohave been executed by Venugopal Naidu in favour of the third defendant on22.06.1978. The plaintiff also in the reply statement stated that theallegation of purchase of benami by Venugopal Naidu in the name of hiswife Devagiammal is not maintainable by virtue of law. https://hcservices.ecourts.gov.in/hcservices/

5. On the basis of the pleadings, the Trial Court has framed thefollowing issues:1) Whether the plaintiff is entitled for one third share in the suitproperties. 2) Whether the third defendant is absolute owner of all the suit property. 3) Whether Venugopal Naidu has adopted the third defendant as his adoptedson under the adoption deed dated 06.02.1976?4) Whether the suit properties were in possession of the plaintiff? 5) Whether court fee paid is correct? and 6) To what relief the plaintiff is entitled? 6. The plaintiff was examined as P.W.1 apart from another witnessMuruga Gounder and marked 11 documents as Ex.A.1 to A.11. On thedefendants side the third defendant was examined as D.W.1 apart from twoother witnesses as D.W.2 and D.W.3 apart from marking 56 documents. Onappreciation of evidence and documents filed the Trial Court by holdingthat Devagiammal was the absolute owner of all the properties and theplaintiff, defendants 1 and 2 and Venugopal Naidu each were entitled onefourth share, has decreed the suit in favour of the plaintiff for onefourth share. 7. In respect of the issue No.4 and 5 regarding possession of theplaintiff as well as the Court fee, the Trial has held that the plaintiffwas in joint possession, therefore, the Court fee paid under Section 37(1)of the Court Fee and suit valuation Act is proper. In respect of theissue No.6 the Trial Court has held that since Venugopal Naidu was havingone fourth share at the time of death of Devagiammal and by virtue of theadoption deed marked as Ex.B.1 and the will of Venugopal Naidu marked asEx.B.2 the third defendant is entitled for one fourth share. It is asagainst the judgement and decree of the Trial Court the defendants 1 to 3have filed the present appeal. 8. I have heard the learned counsel for the appellant as well as therespondents and on perusal of the entire judgement and documents thefollowing point arises for determination in this appeal. "Whether the judgment of the Court below in granting one fourth share tothe plaintiff, first respondent is legally sustainable?"9. While the relationship between the parties are admitted and it isalso admitted that the six items of properties which are the suitproperties, are standing in the name of Devagiammal as seen in Ex.A.1 toA.5 Xerox Copies. The case of the defendants 1 to 3 was that Devagiammalhas no means of her own and it was her husband Venugopal Naidu who haspurchased the property in the name of his wife Devagiammal benami. It isalso their case that since Venugopal Naidu and Devagiammal had no maleissue, Venugopal Naidu has adopted the third defendant who is the son ofthe first defendant as his son. It is relevant to point out that as faras the finding of the Trial Court holding that the third defendant wasadopted by Venugopal Naidu under the adoption deed marked as Ex.B.1 dated https://hcservices.ecourts.gov.in/hcservices/

06.02.1976 and finding that the plaintiff has not produced any documentscontrary to that or given any evidence against that and relying upon theoral evidence of D.W.2 and D.W.3 out of whom the D.W.2 is the father ofthe third defendant and therefore, the adoption of the third defendant byVenugopal Naidu was held to be proved and the said finding has becomefinal for the reason that the plaintiff has not challenged the same.Therefore, it is clear that the third defendant was legally adopted byVenugopal Naidu. 10. The dispute raised by the defendants is that even though thesuit properties stand in the name of Devageammal, they were actuallypurchased by her husband Venugopal Naidu in her name benami and in spiteof the purchase Venugopal Naidu has been in possession. To substantiatethe said contention the defendants would state that the original documentsin respect of all the properties except the second item were produced bythe defendants. The item No.3 and 4, which are covered under Ex.B.3 saledeed dated 11.05.1966 were stated to have been purchased by the moneyreceived by discharge of a mortgage debt under Ex.B.14 dated 13.05.1966and item No.6 of the suit property which is the subject matter of Ex.B.15sale deed dated 11.05.1966, was purchased by the money received from thedischarge of mortgage debt under Ex.B.16 and B.17 dated 05.03.1964 and25.06.1966 and therefore, according to defendants 1 to 3 money was givenin respect of the purchase of the said items by Venugopal Naidu and thename of his wife Devagiammal was used as benami. Therefore, Devagiammalhave no independent right over the property. 11. The Trial Court on appreciation of evidence has held that thedefendants who have come forward with a plea that the properties underdocuments Ex.B.12, B.13, B.15 and B.18 were purchased by Venugopal Naiduin the name of his wife Devagiammal have failed to prove the same with anyevidence. In fact the Trial Court has found that when defendants 1 to 3have specifically stated that Venugopal Naidu was pressurized by thecreditors and it is to avoid them the property was purchased by him fromout of his own income in favour of his wife Devagiammal, there was noevidence on the side of the defendants to show and prove the particularsabout the creditors who have pressurized Venugopal Naidu and what are thedocuments by which the said Venugopal Naidu was pressurized by hiscreditors, especially in the circumstance that when Venugopal Naiduhimself has purchased a property in his name on 18.07.1965 under a saledeed, copy of which was marked on the side of the plaintiff as Ex.A.10 andin such circumstances the Trial Court has come to the conclusion that theplea of benami raised by defendants 1 to 3 has not been proved and ascorrectly pointed out by the learned counsel for the first respondent thefinding of the Trial Court is not without any reason or perverse ordecided on the basis of inadmissible evidence. 12. Having found correctly that the suit property belonged toDevagiammal, the Trial Court has also relied upon the Abolition of BenamiTransaction Act, to decide that, when admittedly, the properties stand in https://hcservices.ecourts.gov.in/hcservices/ the name of Devagiammal, there is no question of setting up benami in thename of Venugopal, in addition to the absence of any evidence on the sideof defendants 1 to 3 to show that Venugopal Naidu has purchased propertiesin the name Devagiammal. Having found correctly based on evidence thatDevagiammal was the owner of the properties by considering thatDevagiammal died on 10.02.1974 as it is seen under Ex.A.6 deathcertificate and it was only after her death her husband Venugopal Naiduunder an adoption deed dated 06.02.1976 marked as Ex.B.1, has adopted thethird defendant the factum of adoption having been held to be proved andhaving found that under Ex.B.2 dated 02.06.1978 Venugopal Naidu hasexecuted a will in favour of the third defendant relating to hisproperties and after the death of Venugopal Naidu on 24.12.1980 as seen inEx.A.7. The Trial Court has correctly found that on the death ofDevagiammal the said Venugopal Naidu being her husband along with theplaintiff and defendants 1 and 2 being her daughters were each entitledfor one fourth share and therefore, at the time Ex.B.2 will was executed,the said Venugopal Naidu was having only one fourth share in the suitproperties which alone can be bequeathed by him to the third defendant andon that basis has come to the conclusion that the third defendant isentitled for one fourth share with the result the plaintiff would beentitled only for one fourth share in the suit properties. The saidfinding is based on the appreciation evidence and conscionable applicationof mind by the Trial Court and therefore, I have no hesitation to come tothe conclusion that the judgement of the Trial Court in granting onefourth share in favour of the plaintiff in the suit property is perfectlyin accordance with law. 13. As far as the payment of court fee by the plaintiff which waspaid under Section 37(1) of the Court Fees Act, when it is found that theplaintiff was entitled for a share, the possession of the properties bythe third defendant on the basis of the will executed by Venugopal Naiduunder Ex.B.2 or the possession by defendants 1 and 2 can only be a jointpossession along with the plaintiff and in view of the same, there isabsolutely no difficulty to come to the conclusion that Court fee paid bythe plaintiff under Section 37(2) of the Court fee Act is in order. Infact as correctly pointed out by the learned counsel for the firstrespondent/plaintiff that the question of payment court fee should bedecided on the basis of the averment made in the plaint. The plaintiff inthe plaint has specifically stated that "Plaintiff and defendants 1 and 2are in joint possession of the suit properties except item No.2 which hasbeen excluded from the possession of the plaintiff". 14. As far as item No.2 is concerned it is 4th and 5th defendants whoare stated to have purchased the same from the third defendant about whichthere is no wisper in the written statement filed by defendants 1 to 3 andthere is no evidence at all and therefore, it is not necessary to dealwith the same. In view of the specific pleading by the plaint, there isno difficulty to come to the conclusion that the valuation in respect ofitem Nos.1, 3 to 6 is under Section 37(2) and valuation of item No.2 under https://hcservices.ecourts.gov.in/hcservices/ Section 37(1) is in order. That was the decision rendered by the Hon’bleSupreme Court in Neelavathi and others Vs. M.Natarajan and Others reportedin 1980(2) MLJ 21 (SC) wherein the Supreme Court has held as follows: "6. On a reading of the plaint as a whole we are unable toagree with the view taken by the High Court. It is settledlaw that the question of court fee must be considered in thelight of the allegations made in the plaint and its decisioncannot be influenced either by the pleas in the writtenstatement or by the final decision of the suit on merits. Allthe material allegations contained in the plaint should beconstrued and taken as a whole."15. In view of the above said findings, I am of the considered viewthat the judgement and decree of Trial Court does not require to beinterfered with and the same is based on the sound reasoning andtherefore, the First Appeal fails and the same is dismissed with cost,confirming the judgement and decree of the Trial Court in O.S.No.9 of 1988passing a preliminary decree in favour of the plaintiff to the extent ofone fourth share and permitting the parties to proceed under Order 20 Rule10 Code of Civil Procedure for determination of future mesne profits.Consequently, connected C.M.P.is also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnbjTo1. The Subordinate Judge,Vridhachalam. (with records)2. The Record Keeper,V.R.Section, High Court, Madras.1 cc To Mr.K.Sridhar, Advocate, SR.23183.1 cc To Mr.V.Raghavachari, Advocate, SR.22755.A.S.No.682 of 1993 AKM(CO)RVL 27.04.2007