K.P.Madhavan v. K.P.Anandan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 10.12.2009CoramThe Honourable Mr.Justice M.JEYAPAULS.A.No.662 of 1991andC.M.P.No.6053 of 1991K.P.Madhavan ... Appellant/PlaintiffVs.1.K.P.Anandan2.Padmavathi (died)3.P.Vasuki4.K.Killy5.Krupa (died)6.K.Nityakalyani ... Respondents(R5-died, R2-sole appellant, RR1,3,4 and 6 legal representatives of the deceasedsecond respondent vide order of Courtdated 14.02.2008 in memo filed in USSR No.4335/07 dated 31.10.2007) Second Appeal filed under Section 100 of Civil Procedure Codeof second appeal against the Judgment and Decree of XI AdditionalJudge, City Civil Court, Madras dated 13.12.1989 and made inA.S.No.479 of 1988 modifying the Judgment and decree of the XVAssistant Judge, City Civil Court, Madras dated 15.07.1987 and madein O.S.No.7832 of 1984. For Appellant : Mr.M.DevendranFor R-1 : Mr.T.M.Hariharan JUDGMENTThe second defendant is the appellant herein.2.The first respondent/plaintiff has filed the suit prayingfor partition of the suit property and allot one-seventh share tohim. He has also prayed for mesne profits.3.The first defendant Padmavathi is the wife of lateV.K.Palani. The second defendant and the plaintiff are the sons andthe defendants 3 to 6 are the daughters of V.K.Palani. https://hcservices.ecourts.gov.in/hcservices/

4.The plaintiff would contend in the plaint that his fatherV.K.Palani left behind him a tiled house bearing Door No.10,Nelsonmanickam Road, Chennai-94. After the demise of V.K.Palani,the plaintiff and the second defendant constituted a Hindu jointfamily and improved the said property. Though the joint familyproperties are undivided, the plaintiff and the second defendantstarted living separately from the year 1977. The properties areunder the management of the second defendant. Alleging that therewas no proper response from the second defendant for the demand forpartition of the properties by metes and bounds, the plaintiffprays for division of the property and allotment one-seventh sharetherein.5. The third to sixth defendants remained exparte before theTrial Court proceedings. The first defendant Padmavathi filedwritten statement, but she did not participate in the further trialproceedings. The written statement filed by the first defendantwould go to show that she virtually supported the case of thesecond defendant. 6.The second defendant would contend in the writtenstatement separately filed by him that the tiled house bearing DoorNo.10, Nelsonmanickam Road, Chennai-94 is the self-acquiredproperty, absolutely belonging to the second defendant. Theplaintiff had no earnings at the time when the suit property wasacquired by the second defendant. The plaintiff after the demise ofV.K.Palani left the second defendant to set up a separate house atKodambakkam. V.K.Palani put up a thatched shed in the suit propertywhich is a poromboke land. The Government removed the same in theyear 1948 itself. The second defendant was employed in AshokLeyland for about three years. With his own earnings he put up athatched shed in the poromboke land. Thereafter, the seconddefendant joined the Indian Railways and having removed the hut, heput up a Mangalore tiled house out of his own earnings. In the year1981, he built a pucca building out of his own earnings and also byborrowing loans from friends and money lenders. The plaintiff hasno manner of right over the suit property. Therefore, he prays thatthe suit may be dismissed.7.The Trial Court having adverted to the evidence on recordreturned a finding that the super-structure was put up by thesecond defendant from the funds mobilized by him and that theplaintiff is not entitled for a share in the suit property aspleaded by him. 8.The First Appellate Court having set aside the findingsof the Trial Court held that the super-structure of the suit sitewhich is a poromboke land was assigned in favour of V.K.Palani andthe super-structure was put up out of the joint family funds. Ithas been observed therein that the plaintiff has also contributed https://hcservices.ecourts.gov.in/hcservices/ for the construction of the super-structure in the suit property.Consequently, the prayer for mesne profits was rejected by theFirst Appellate Court.9.The following substantial questions of law wereformulated by this Court at the time of the admission of the secondappeal for determination:1.Whether there has been a properappreciation and application of the principlesfor holding that a property standing in thename of an individual, shall acquire thecharacter of a joint family property so as tobe available for partition.2.Whether the Lower Appellate Courtmisconstrued or omitted to construe thematerial evidence on record when it chose toreverse the Judgment and decree of the Courtbelow.10.The learned counsel appearing for the second defendantwould contend that Ex.B28, account book maintained by the seconddefendant, Ex.B36 account particulars maintained in a separatesheet by the second defendant, Ex.B37 the bills numbering 53showing the purchase of construction materials and Ex.B38 receiptsnumbering 28 showing purchase of construction materials would go toestablish that it was only the second defendant who constructed thesuper-structure by contributing his earnings. The communicationsreceived from the Tahsildar, Collector and Deputy Secretary toGovernment of Tamil Nadu respectively under Exs.B29, B30 and B31would establish that it was only the second defendant who wasreminded of the construction put up by him in a Government land andwas directed to stop construction. He would submit that if at allthe second defendant had put up construction in the suit property,there would have been no occasion for the Government authorities todirect him to stop construction of the super-structure. It is hisfurther submission that the plaintiff did not file documents toshow that he contributed anything for the super-structure put up inthe suit property. The plans Exs.A4 and A5 were not approved plans.It is submitted that the xerox copy of the affidavit was simplyproduced before the Trial Court. Even in the said affidavit, thereis a reference that it was only the second defendant who hadproposed to put up construction in the suit site, if at allV.K.Palani was assigned with the suit property there would havebeen no occasion for the Government authorities to issuecommunications under Exs.B29, B30 and B31 directing the seconddefendant to stop construction in the suit site. The lastsubmission made by the learned counsel appearing for the seconddefendant is that even assuming for the sake of argument that thesite infact belongs to the joint family, the second defendant can https://hcservices.ecourts.gov.in/hcservices/ very well establish that the superstructure is his self-acquisition. Inasmuch as he has established that he has put upconstruction in the suit site from out of his own earnings, theplaintiff cannot have any division of the structure put up out ofthe earnings of the second defendant. Therefore, he would submitthat the Judgment of the First Appellant Court warrantsinterference.11.The learned counsel appearing for the plaintiff/firstrespondent would submit that the second defendant who has come outwith a plea that in the year 1948 itself, encroahment made byV.K.Palani was removed by the Government has completely given upthat case and has projected a new case during the course of TrialCourt of the case. Referring to Ex.A31 dated 26.05.1941 he wouldsubmit that V.K.Palani was directed by the Government authoritiesto pay Rs.3 per square foot aggregating to Rs.72 for assignment ofthe suit site which was found to be in his encroachment. Referringto Exs.A6 and A7 he would submit that V.K.Palani paid B-memocharges in the years 1945 and 1946. Referring to the otherdocuments on record, he would submit that the suit site wasassigned in favour of V.K.Palani as found from the extract ofsurvey and settlement records Ex.A30 and property demand notice wasissued by the authorities concerned not only to the seconddefendant but also to the first defendant and the plaintiff.Referring to the affidavit filed by the second defendant in theearlier suit proceedings and the joint undertaking given by theplaintiff, first defendant and second defendant under Ex.A47, hewould submit that the construction was made not only by the seconddefendant but also by the other members of the family. Therefore,he would submit that the Judgment of the First Appellate Courtdeserves to be confirmed.12.It is true that the second defendant had maintained anaccount book and account particulars in separate sheets as foundfrom Exs.B28 and B36. He has also chosen to produce 53 bills and 28receipts marked as Exs.B37 and B38 to establish before the Courtthat he had contributed his mite for procuring constructionmaterials. The aforesaid documents would go to show that he had ofcourse contributed for the construction of the super-structure inthe suit property. The question that arises for consideration iswhether the super-structure in the suit site was put up exclusivelyby the second defendant or by the entire family members. It is truethat the Tahsildar, the Collector and the Deputy Secretary to theGovernment of Tamil Nadu under the proceedings Exs.B29, B30 and B31directed the second defendant to stop construction in the suit siteas it was a Government poromboke land belonging to the Government.But on a careful perusal of the extract of survey and settlementrecords marked as Ex.A30 dated 03.12.1971, it is found thatV.K.Palani was shown as the rightful owner of the suit property.The proceedings Exs.B29 to 31 issued by the Government authoritiesreferred to above are found to be quite against the spirit of the https://hcservices.ecourts.gov.in/hcservices/ entry found in the survey and settlement records marked as Ex.A30.Of course no document was produced before the Court that the seconddefendant effectively challenged the communications which hereceived from the Government authorities under Exs.29 to 31 to stopconstruction in the site which was already assigned to his fatherunder Ex.B30. But at any rate, the communications sent by theGovernment authorities under Exs29 to 31 would not dilute the rightfound to have been conferred as per the entry found in the extractof survey and settlement records Ex.A30.13.Ex.A41 a letter shot off by the second defendant to hismother, the first defendant on 10.08.1982 would go to show that hehas instructed his mother to associate the plaintiff also in thematter of white washing the building put up in the site. Therefore,we cannot jump to a decision based on the materials Exs.B28, B36,B37 and B38 produced by the second defendant that the plaintiff didnot contribute anything for the construction of the super-structurein the suit site. 14.I find that the plaintiff has produced voluminousdocuments to establish that originally V.K.Palani encroached uponthe suit site which was a Government poromboke land and that theplaintiff having paid B-memo charges chose to remit the value ofthe site as fixed by the Government and got the assignment in hisname.15.Ex.A31 dated 26.05.1941 would go to establish thatV.K.Palani was directed by the Government authorities to pay Rs.3per square feet aggregating to Rs.72 to get assignment as prayedfor by him in his application. Thereafter, under Exs.A6 and A7V.K.Palani chose to pay B-memo charges for the enjoyment of thesuit site which was a poromboke land on 12.05.1945 and 09.01.1946.He was directed under Ex.A8 dated 30.12.1955 to pay encroachmentcharges. The afore detailed documents produced on the side of theplaintiff would go to establish that the second defendant has comeout with a false defence that the encroachment made by his fatherV.K.Palani was removed by the Government way back in the year 1948.16.Under Ex.A11 dated 05.02.1965 the corporation authorityhad thought it fit to issue property assessment notice not only tothe second defendant but also to the plaintiff and the firstdefendant directing them to pay the property tax for the tiledhouse in the suit property. Ex.A10 dated 20.03.1965 would go toestablish that property tax was assessed not only in the name ofthe second defendant but also in the name of the plaintiff and thefirst defendant. Ex.A30 dated 03.12.1971 the extract of survey andsettlement records would go to show that Ryotwari rights over theGovernment poromboke site was conferred on V.K.Palani. Theaforesaid documents completely disarm the defence of the seconddefendant that V.K.Palani was removed from encroachment and thesecond defendant who encroached upon the suit site afresh put up a https://hcservices.ecourts.gov.in/hcservices/ tiled house out of his own earnings.17.Ex.A24 dated 31.07.1976 would go to show that theplaintiff and the second defendant chose to jointly submit apetition to the Governor for issuing assignment in their names. Hadthe second defendant become the exclusive encroacher of the suitporomboke site there would have been no occasion for the seconddefendant to associate the plaintiff also to submit a jointpetition to the Governor for the purpose of giving assignment underEx.A24.18.Under Ex.A12 dated 30.12.1977, a demand notice was issuedby the authorities to the first defendant and others. It is truethat Exs.A4 and A5 plan had not indicated that they received theseal of approval of the authorities concerned. On a carefulscrutiny of Exs.A4 and A5 it is found that the plaintiff as well asthe second defendant had subscribed their signatures to the saidplan. Though those plans were attacked on the ground that they werenot approved plan, it is found that the second defendant chose notto dispute his signature found in Exs.A4 and A5. The otherdocuments consequentially come into existence would santify theveracity of Exs.A4 and A5.19.Under Ex.A46 dated 04.03.1978 the second defendant choseto submit an affidavit before the Urban Land Ceiling Authority. Heunambiguously declared in the affidavit Ex.A46 that he was one ofthe joint share holders of the suit property. If at all the seconddefendant had become the absolute encroacher of the suit property,there would have been no occasion for him to declare that he wasjust one of the joint share holders of the suit property. To top itall under Ex.A47 dated 13.03.1978 a joint undertaking was given notonly by the second defendant but also by the plaintiff and thefirst defendant that they had proposed to construct a building inthe suit site. Ex.A47 deals a death blow to the case of the seconddefendant that it was he who put up exclusive construction in thesuit property.20.Ex.A40 dated 29.06.1978 is a common Judgment pronouncedin the eviction proceedings initiated by the second defendant asagainst three tenants in occupation of the suit property. Thepleadings of the second defendant is found incorporated in the saidcommon Judgment. It appears that the second defendant had set up aplea in the eviction proceedings initiated by him as against threetenants in occupation of the suit property that the suit propertywas the property, jointly owned by the family of V.K.Palani. Evenafter the new pucca construction was made in the suit property, itis found that the property tax was assessed not only in theexclusive name of the second defendant but also in the name of theplaintiff and the first defendant as found under Ex.A42 dated04.12.1987. https://hcservices.ecourts.gov.in/hcservices/

21.It is true that the plaintiff has not produced tellingmaterials to show that he in fact purchased any constructionmaterials from out of his own earnings. But the clinching documentsreferred to above produced on the side of the plaintiff would go toestablish that the construction was made not by an individual, butby the joint family.22.The learned counsel appearing for the second defendantrefers to a decision in A.D.P.R.Periakaruppan Chetti Vs.R.M.A.Arunuchalam Chetti and another AIR 1927 Madras 676 wherein ithas been held that:- when a person build a house when his self-acquisitions on a land which is ancestral innature with the knowledge of the other personswho had right in the said land the said siteand building should be alloted to the personwho build up the super-structure.23.In yet another case in Kashinath Das Vs. Pravash ChandraDas and others AIR 1978 Calcutta 509 the Calcutta High Court hasheld that:-There was no question of throwing the self-acquired property into the common stock to makeit form part and joint family property when themother had allowed the son to build a house inher property, it cannot be claimed by theconstruction made by the son would belonging tothe mother.24.Firstly, on facts, it is found that the plaintiff hasestablished in the instant case that the construction in the suitsite was not made exclusively by the second defendant but the samewas put up by the members of the family. Secondly, in the aforesaidcase many properties were involved in a suit for partition and oneof the share holders who had put up construction with his ownearnings sought allotment of the site along with the constructionput up by him. The aforesaid ratio laid down by this Court as wellas the Calcutta High Court would not apply to the facts andcircumstances of this case.25.The Trial Court, it appears, have been completely guidedby the account books, bills and receipts produced by the seconddefendant, ignoring completely the other material documentsproduced by the plaintiff, wrongly held that the pucca constructionin the suit site was constructed only by the second defendant andnot by the other family members. The First Appellate Courtadverting to the entire materials on record in the rightperspective has correctly returned a finding that the suit site wasassigned in the name of V.K.Palani and the super-structure in thesuit site was put up not only by the second defendant but also by https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the first defendant. There was no misconstructionof the material evidence on record by the First Appellate Court.The plaintiff has established that the ryotwari right in the suitsite was given to his father and the entire family which came intopossession of the suit site put up a pucca construction whereas,the second defendant failed to establish that the suit site as wellas the superstructure standing therein belonged to him.26.In view of the above, the plaintiff is entitled to one-seventh share in the suit property as determined by the FirstAppellate Court.27.Therefore, confirming the Judgment of the First AppellateCourt the second appeal stands dismissed. There is no order as tocosts.Sd/Asst.Registrar/true copySub Asst.RegistrarpsTo1.The XI Additional Judge, City Civil Court, Madras.2.The XV Assistant Judge, City Civil Court,Madras.3.The Section Officer, VR Section,High Court, Madras.1 cc To M/s.T.M.Hariharan., Advocate, SR.677081 cc To Mr.M.Devendran, Advocate, SR.67667S.A.No.662 of 1991AKR(CO)sra 25.01.2010