High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-06-2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1030 of 1996Brammagiri.. Appellant/Appellant/1st Defendant Versus1.Minor Sivasubramaniam...1st Respondent/1st Respondent/rep by guardian and nextPlaintifffriend Subbathal2.Ayyasamy... 2nd Respondents/2nd Respondent/2nd Defendant Appeal against the judgment and decree of the learnedPrincipal District Judge, Coimbatore, dated 09.03.1994, in A.S.No.214of 1993, confirming the judgment and decree of the learnedSubordinate Judge, Tiruppur, dated 08.01.1993, in O.S.No.295 of 1989.For Appellants : Mr.V.NicholasFor Respondents : Mr.K.RajeshwaranJ U D G M E N TThis second appeal has been filed against the judgment anddecree passed by the Court of the Principal District Judge,Coimbatore, dated 09.03.1994, made in A.S.No.214 of 1993, confirmingthe judgment and decree passed by the Court of the SubordinateJudge, Tiruppur, dated 08.01.1993, made in O.S.No.295 of 1989.2. The first defendant before the trial Court is the appellantin the present second appeal. The plaintiff had filed the suit inO.S.No.295 of 1989, on the file of the Court of the SubordinateJudge, Tiruppur, praying for the passing of a preliminary decree forpartition of the suit schedule properties, by dividing the same intofour equal shares and to allot one such share to the plaintiff and toput him in separate possession of the same and for the cost of thesuit.3. The brief facts of the case, as stated by the plaintiff inthe suit, are as follows: https://hcservices.ecourts.gov.in/hcservices/ The plaintiff is the minor son of the second defendant. Thedefendants are brothers. The properties described in the suitschedule are ancestral properties belonging to the joint family. Theplaintiff is entitled to ¼ th share in the suit schedule properties.The second defendant had married the plaintiff's mother and they hadtwo daughters, both of whom are elder to the plaintiff. The seconddefendant had deserted the plaintiff, his mother and sisters.Therefore, they were living at Naduppalayam with the plaintiff'smaternal grand father. It had been further stated that the seconddefendant had executed two release deeds in favour of the firstdefendant, acting against the interest of the plaintiff. The releasedeeds are not for the benefit of the plaintiff, as he has not beenmade a nominee to the release deeds. The consideration mentioned inthe documents are also not true, or correct. The second defendant isnot entitled to release the properties, including the plaintiff'sshare. Since the release deeds, dated 12.12.1988 and 14.12.1988, arenot genuine documents, they will not in any way bind the plaintiffand curtail his rights over the suit schedule properties. Even thoughthe first item of the suit schedule property was purchased in thename of the plaintiff's paternal grand mother, since it was purchasedfrom and out of the income from the ancestral joint familyproperties, the plaintiff is entitled to ¼ th share in both the itemsof the suit schedule properties. A legal notice had been issued onbehalf of the plaintiff and the first defendant had issued a replystating that the plaintiff is living along with the second defendantand the release deeds were made only for the benefit of the family.The statements made in the reply notice are false and devoid ofmerits. Hence the plaintiff had filed the suit for partition andseparate possession of his ¼ th share.4. The brief averments in the written statement filed by thefirst respondent are as follows: The first respondent does not admit any of the allegationscontained in the plaint, except those which were specificallyadmitted. The statements made by the plaintiff are deliberate,falsehood, mischievous and misleading. The claim of the plaintiffthat the first item of the suit schedule property was purchased inthe name of the plaintiff's paternal grandmother, from and out of theincome of the ancestral joint family properties is false. It had alsobeen stated that the plaintiff, his mother, the second defendant andthe plaintiff's sisters are all living together happily andpeacefully at Thalingikkadu Thottam, Pappampatti Village, PalladamTaluk. They are not residing at Naduppalayam with the maternal grandfather as stated in the plaint. There was no misunderstanding amongstthem and it is not true to state that the second defendant haddeserted the plaintiff, his mother and the sisters. It is only forthe purpose of filing the present suit, the plaintiff had made suchallegations with ulterior motives. The first item of the suitschedule property has not been purchased from and out of the incomeof the joint family ancestral properties and it has been purchasedonly out of the hard earned money of the defendants mother. Only https://hcservices.ecourts.gov.in/hcservices/ after receiving a huge amount of money, as consideration, the seconddefendant had executed two separate registered release deeds infavour of the first defendant, dated 12.12.1988 and 14.12.1988, asdocument Nos.2715 and 2865 of 1988, respectively. The entireconsideration had been utilised and spent only for the welfare andadvantage of the entire family. By virtue of the release deeds, thefirst defendant had become the absolute and exclusive owner of theentire suit schedule properties. When the second defendant had noright, title or interest over the properties, the plaintiff whoclaims right through the second defendant, cannot have any claim orright over the suit schedule properties. Since the plaintiff is nothaving any right, title, or interest in the suit schedule properties,there is no need to implead him as a party, or nominee in the releasedeeds. Therefore, the plaintiff is not entitled to any share in thesuit schedule properties. It had been further stated that a bare suitfor partition, without seeking the relief of cancellation, or settingaside of the release deeds, is not maintainable and it is liable tobe dismissed in limine. The plaintiff cannot maintain the suit as aco-owner, or a co-sharer of the suit schedule properties. Further,there is no cause of action for the suit and therefore, the suitfiled by the plaintiff is not maintainable.5. Based on the rival claims made by the plaintiff, as well asthe defendants, the trial Court had framed the following issues forconsideration:i) Whether the first item of the plaint scheduleproperties is a joint family property?ii) Whether the release deeds by the second defendantis binding on the plaintiff?iii) Whether the plaintiff is entitled to partition?If so, what share he is entitled to?iv) What other reliefs the plaintiff is entitled to?6. Based on the statements contained in Ex.A-1, the trial Courthad come to the conclusion that the first item of the suit scheduleproperty belonged exclusively, to Deivanaiammal, the mother of thedefendants and therefore, the trial Court had come to the conclusionthat the plaintiff is not entitled to any share in the first item ofthe suit schedule properties. It was also held that the release deed,dated 12.12.1988, marked as Ex.A-1, executed by the second defendantand his sisters in favour of the first defendant is valid in law. Thetrial Court had found that the second item of the plaint scheduleproperty was an ancestral property belonging to the defendants andtheir father. Therefore, the plaintiff was entitled to only 1/6thshare in the said property. In such circumstances, the plaintiff isentitled to partition and separate possession of 1/6 th share of thesecond item of the suit schedule property. 7. Aggrieved by the judgment and decree of the trial Court,dated 08.01.1993, made in O.S.No.295 of 1989, the first defendant hadfiled an appeal before the Principal District Judge, Coimbatore.Based on the averments made on behalf of the plaintiff, as well as https://hcservices.ecourts.gov.in/hcservices/ the defendants and also based on the records available, the lowerAppellate Court had framed the following points for consideration:"1. Whether the second item of the suit scheduleproperty is a joint family property?2. Whether the plaintiff is entitled to the relief ofpartition with regard to the second item of the suitschedule property?." While answering the points for consideration, the lowerappellate Court had confirmed the findings of the trial Court anddismissed the appeal. 8. The present second appeal has been filed by the firstdefendant, who was the appellant before the lower Appellate Court.The second appeal has been filed on various grounds stated in thememorandum of the grounds of appeal. It has been stated inter alia,that the Courts below had failed to see that the materials on recordhad clearly established that the sisters, mother and father of theplaintiff were all living together at Thalingikkadu Thottam,Pappampatti Village, Palladam Taluk. The suit had been filed by theplaintiff on the instigation of the second defendant with theulterior motive of defeating the valuable rights of the firstdefendant in the suit schedule properties. The courts below hadfailed to see that the second defendant had never deserted theplaintiff at any point of time and the allegations in the plaint havebeen invented only for the purpose of filing of the suit. The Courtsbelow had failed to see that the second defendant had released hisrights in the suit schedule properties in favour of the firstdefendant only after receiving due consideration. The suit forpartition, without a relief for setting aside the release deeds, wasnot maintainable in law. The plaintiff cannot be construed as a co-owner or a co-sharer and therefore, the suit is unsustainable in law.Since the release had been executed by the second defendant as thekartha and manager of the Hindu joint family, he had the right toexecute such a document, so as to make it valid and binding upon theplaintiff, who was a minor. The Courts below had failed to see thatthe suit valued under Section 37(2) of the Tamilnadu Court fees andvaluation Act is not correct, as the plaintiff ought to have valuedthe suit under Section 37(1) of the Act.9. The second appeal had been admitted on the followingsubstantial questions of law:"1. When the plaintiff is disputing the right of the2nd defendant to execute a release deed in favour of the 1stdefendant whether the present suit for partition withoutseeking to set aside the said release deed is maintainablein law?2. When the plaintiff failed to discharge his burdento prove that the suit II item is an ancestral property orjoint family property whether the Courts below are correctin granting the relief of the plaintiff in respect of thesaid item? https://hcservices.ecourts.gov.in/hcservices/

10. Learned counsel appearing on behalf of the appellant hadreiterated the stand taken by the first defendant in his writtenstatement filed before the trial Court in O.S.No.295 of 1989. He hadsubmitted that the Courts below had not appreciated the oral anddocumentary evidence available before them in their properperspective. It was contended that the plaintiff had filed the suitin collusion with the second defendant with an ulterior motive ofdefeating the valuable rights of the appellant in the second appeal.It was also contended that the release deeds, dated 12.12.1988 and14.12.1988, had been executed by the second defendant after receivingdue consideration. It was also contended that the plaintiff could notbe construed as a co-owner, or a co-sharer in the suit scheduleproperties and that the suit for partition without a relief forsetting aside the documents of release is not maintainable in law.11. Learned counsel appearing on behalf of the respondents hadsubmitted that the Courts below had come to the right conclusionafter due appreciation of the oral and documentary evidence availableon record. The Courts below had rightly held that the plaintiff isentitled to 1/6 th share of the second item of the suit scheduleproperty.12. The trial Court as well as the first appellate Court hadfound that the second item of the suit schedule property was a jointfamily property and that the plaintiff was entitled to 1/6th share inthe suit property. In view of the findings of the courts below, therelief claimed by the plaintiff for partition is maintainable and thefindings of the Courts below that the plaintiff is entitled to 1/6thshare of the second item of the suit schedule property is right inlaw. As rightly held by the Courts below, the plaintiff hadsufficiently proved his rights over the second item of the suitschedule property. 13. The lower appellate Court, while confirming the judgment anddecree of the trial Court, had held that the first item of the suitschedule property belonged to Deivanaiammal as separate property andtherefore, the plaintiff was not entitled to any share in it. Withregard to the second item of the suit schedule property, it was heldthat the plaintiff is entitled to 1/6th share in the said property asit belonged to the family of the defendants as an ancestral propertyand that the second defendant could not execute the release deed withregard to it without the permission of the Court. 14. The lower appellate Court had also found that the seconddefendant and his sisters had executed a release deed in favour ofthe first defendant without including the plaintiff, who was a minor,as a party. In law, prior permission ought to have been obtained fromthe Court before dealing with a property that belonged to a minor. Itwas found that the second defendant had not obtained such apermission with regard to the second item of the suit scheduleproperty. It was also found that it was not mentioned in the releasedeed that the second defendant had executed the said document as amanager or the kartha of the joint family properties. Further, it https://hcservices.ecourts.gov.in/hcservices/ had not been stated that the release deed was executed for thebenefit of the family or due to necessity or to repay the familyloans. Since the release deed, marked as Exhibit A.2, cannot be saidto be binding on the plaintiff, it was held that he was entitled tothe relief of partition and separate possession of 1/6th share of thesecond item of the suit schedule property. Thus, the first appeal,was dismissed by the judgment and decree of the lower appellateCourt, dated 09.03.1994 in A.S.No.214 of 1993, confirming thejudgment and decree of the learned Subordinate Judge, Tiruppur, dated08.01.1993, in O.S.No.295 of 1989. 15. In view of the findings of the Courts below, it is clearthat the release deed, marked as Exhibit A.2, dated 14.12.1988,cannot be held to be binding on the plaintiff as no prior permissionhad been obtained from the concerned Court before it was executed bythe second defendant. 16. In view of such findings by the Courts below, it was heldthat the plaintiff is entitled to 1/6th share of the second item ofthe suit schedule property. Once when the release deed executed bythe second defendant was held to be not binding on the plaintiff, asthe second defendant did not possess the right to execute the releasedeed in favour of the first defendant, the substantial question oflaw raised in the second appeal is answered in favour of theplaintiff holding that the suit instituted by the plaintiff ismaintainable in law. 17. While both Courts below have found that the second item ofthe suit schedule property is an ancestral joint family property,based on the oral and documentary evidence available on record, it isnot open to the appellant herein to contend that the plaintiff hadfailed to discharge his burden proving that the said property is anancestral joint family property.18. Appreciation of evidence by the Courts below and thefindings of the Courts below based on such appreciation of evidencecannot, normally, be a substantial question of law before this Courtin the second appeal as held by the Supreme Court in its recentjudgment in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS (2007 (1) CTC334). 19. On analysing the rival contentions made on behalf of theparties concerned and on a perusal of the records available, thisCourt is of the considered view that the Courts below had come to theright conclusion, based on available evidence, that the plaintiff isentitled to 1/6 th share of the second item of the suit scheduleproperty. https://hcservices.ecourts.gov.in/hcservices/

20. In such circumstances, the appellant has not shownsufficient cause or reason for this Court to interfere with thefindings of the Courts below. In such view of the matter, the secondappeal stands dismissed, confirming the judgment and decree of theCourts below. No costs. csh/lan Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principal District Judge,Coimbatore.2. The Subordinate Judge,Tiruppur.3. The Section Officer,VR Records,High Court, Madras.+ 1 cc to Mr. V. Nicholas, Advocate SR No. 36616Second Appeal No.1030 of 1996GG(CO)SR/27.7.2007