High Court · 2006

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.04.2006CORAM :THE HONOURABLE MR. JUSTICE A. KULASEKARANSecond Appeal No. 274 of 1996-o-Kothanramappa.. Appellant/1st Defendant Versus1. Thimmaiah2. Venkatalakshmamma3. Chinnavaradhamma4. Pappiah5. Nagamma6. Chandramma7. Chinna Pappamma.. Respondents/Plaintiffs 2 to 4 and Defendants 5 to 7Second appeal under Section 100 CPC against the decree andjudgment 28.07.1995 made in A.S. No. 61 of 1994 on the file ofAdditional Special Judge, Krishnagiri confirming the decree andjudgment dated 10.02.1993 made in O.S. No. 468 of 1979 on the file ofDistrict Munsif, HosurFor Appellant :Mr. M.V. KrishnanFor Respondents: Mr. V. Raghavachari for RR1 to 3, R5, R6 and R7No representation for R4JUDGMENTThe first defendant in O.S. No. 468 of 1979 before the DistrictMunsif Court, Hosur is the appellant in this second appeal. The saidsuit was filed by the deceased Ramaiah for partition of the suitproperties. During the pendency of the suit, the said Ramaiah diedand the plaintiffs 2 to 4/respondents 1 to 3 herein were impleaded ashis legal heirs.2. The trial court decreed the suit thereby allotted 8/28shares in favour of the first plaintiff and directed the firstdefendant to put the plaintiffs in possession of the suit properties.On appeal, the first appellate Court confirmed the decree andjudgment of the trial court and dismissed the first appeal, hence thepresent second appeal has been filed. https://hcservices.ecourts.gov.in/hcservices/

3.For the sake of convenience, the parties shall hereinafterbe referred to as plaintiffs and defendants as they were arrayedbefore the trial court.4.The suit properties were originally acquired byChinnamunusamy through a oral sale from his brother Patha Munusamy.The said Chinnamunusamy died in the year 1975. The first Plaintiff,defendants 1 and 2 are sons, third defendant is the wife anddefendants 4 to 6 are the daughters of the said Chinnamunusamy.There are six items of property shown in the schedule of the plaint,among them, the properties shown in item Nos. 1 to 3 and 5 wereancestral properties and item Nos. 4 and 6 were acquired out of thejoint family funds for the benefit of the joint family. Though thefirst plaintiff was the eldest member in the family, he was mentallyimbalanced and therefore the first defendant has taken care of thejoint family properties. The plaintiffs and defendants were livingas a joint family, due to a dispute among the women family members,it was decided to have a separate mess and accordingly the plaintiffslived in a separate portion of a house and the defendants 1 and 2lived in the other portion. The first plaintiff sought for partitionof the properties, which was refused by the first defendant. APanchayat took place in the presence of the elders but the firstdefendant refused to effect partition of the properties. Accordingto the plaintiffs, the first defendant, in order to deprive thelegitimate share of the plaintiffs is attempting to defraud them.The first plaintiff is entitled to 8/28 share in the suit property,hence the suit was filed praying for a preliminary decree ofpartition.5.The defendants 1 and 2 contested the suit by stating thatthe suit is not maintainable. The Plaintiffs are fully aware that apartition had already taken place in 1956 and there was a disruptionof the joint family status even then. During the life time ofChinnamunusamy, a partition muchalika was entered into on 25.02.1974by which certain properties were allotted to the first plaintiff andhis family. The allegation that item Nos. 1 to 3 and 5 wereancestral properties is false. The defendant never taken care of themanagement of the properties as alleged. The suit properties are theexclusive properties of the first and second defendants and prayedfor dismissal of the suit. 6.Before the trial Court, the plaintiffs have not marked anydocuments, but examined the second plaintiff, Ramappa andSeetharamaiah as PWs 1 to 3. On the side of the defendants, Exs. B1to B3 were marked and first defendant, second defendant, P.R.Krishnamoorthy and Jamvandhan @ Venkatesappa were examined as DWs 1to 4 respectively.7.The trial court, after careful consideration of the oralevidence let in by the plaintiffs and the defendants found thatthough the defendants have stated that even during 1956 a partitionwas done in which certain properties were allegedly given to theplaintiffs, DW1 in his evidence was unable to say what are theproperties allotted to the plaintiffs. Similarly, DW2 in his https://hcservices.ecourts.gov.in/hcservices/ evidence has admitted that he was not aware of the year of thepartition and the properties allotted to the plaintiffs. If really apartition had taken place atleast on 25.02.1974 as alleged, thedefendants ought to have furnished the details of the propertiesallotted to the plaintiffs, besides, the averment that item Nos. 4and 6 of the suit properties were purchased by him out of his ownfunds was not proved. It is also further pointed out by the trialcourt that DW4 in his evidence has stated that 5 to 6 years prior tothe death of Chinnamunusamy, the suit properties were jointly enjoyedby the plaintiffs and defendants, hence, it held that the propertiescovered under Ex.B1 dated 28.06.1959, Ex.B2 dated 28.06.1959, Ex.B3dated 30.12.1969, Ex.B4 dated 10.01.1963 and Ex.B6 dated 17.08.1961were purchased out of the joint family funds and therefore the firstplaintiff is entitled to 8/28 share in the suit properties andaccordingly decreed the suit.8.Aggrieved by the said decree and judgment of the trialcourt, the appellant herein has filed A.S.N o. 61 of 1994 before theAdditional Special Court, Krishnagiri. The first appellate Courtafter careful consideration of the oral and documentary evidencefound that the first plaintiff was mentally ill and therefore thefirst defendant alone was maintaining the suit properties as a jointfamily manager; that DW1 in his evidence has admitted that therewere ancestral properties belonged to the family of the plaintiff anddefendants stood in the name of deceased Chinnamunusamy and thereforethe item Nos. 4 and 6 of the suit properties could have beenpurchased out of the joint family funds for the benefit of the jointfamily in the name of the first defendant. The first appellate Courtalso disbelieved the version of the defendants that a partition hadalready taken place on 25.02.1974 in which certain properties wereallotted to the plaintiffs thereby confirmed the decree and judgmentof the trial court.9.The learned counsel appearing for the appellant submittedthat the plaintiffs have not proved the existence of joint family;that the partition muchalika dated 25.02.1974 spoken about the oralpartition taken place in the year 1956, but the same was notconsidered by the courts below; that the first plaintiff is a partyto Ex.B7, sale deed dated 25.02.1974, hence, he is estopped fromquestioning it; that Ex.B2, sale deed dated 28.06.1959 has beenproved by evidence of DWs 1 and 2 and PW1 is a party to the saiddocument; that the first defendant never acted as a Manager of thealleged joint family; that there was no evidence to show that thedeceased first plaintiff was a lunatic, if so, he should have beenrepresented by next friend but it was not done, hence, the suit isnot maintainable under Order 33 Rule 15 CPC and prayed for settingaside the decree and judgment of the courts below.10.Per contra, the learned counsel appearing for therespondents 1 to 3, 5, 6 and 7 submitted that in Ex.B7, sale deeddated 25.02.1974, the signature of Chinnamunusamy was not available,but signature of one Munusamy is found; that the courts below foundthat the said signature is not the signature of Chinnamunusamy since,no witness was examined by the defendants to prove the same; that the https://hcservices.ecourts.gov.in/hcservices/ courts below found that in Ex.B7, it was alleged that first defendantmaintained his father and the second defendant maintained his mother,but in their evidence, the same was not established by them; that thedefendants claimed that partition took place in the year 1956, butthey are unable to say what are the properties allotted to theplaintiffs; that the evidence of defendants witness is contrary toEx.B7; that Ex.B10 was a common patta in the name of the deceasedfirst plaintiff and the defendants 1 and 2 which prove the existenceof joint family; that there is no evidence to show that secondplaintiff was enjoying his share exclusively and considering allthose things, the courts below rightly granted the relief sought forby the plaintiffs and prayed for dismissal of the second appeal.11.The courts below, based on the evidence of plaintiffs anddefendants found that Chinnamunusamy died in or about 1975. Thecourts below relied on the evidence of DW4, who has stated that 5 to6 years prior to the death of Chinnamunusamy a partition took placebetween the parties, and found that the averment of the defendantsthat partition took place in the year 1956 was false. It is alsopointed out by the courts below that DW4 is well acquainted with thefamily of the first defendant and also purchased the property underEx.B4, sale deed dated 10.01.1963 along with the first defendant,however, his evidence falsify the case of the defendants thatpartition took place in the year 1956. The courts below alsodisbelieved the evidence of DW2 considering the material discrepancyin his evidence. It is pointed out by the courts below that thefirst defendant was examined as DW1, who in his evidence admittedthat his father used to sign as Chinnamunusamy but in Ex.B7, thesignature was found as Munusamy, hence, Ex.B7 was not a valid one.DW3, who was a scribe of Ex.B7 has stated in his evidence that theoriginal of Ex.B7, sale deed dated 25.02.1974 was with him, but thesame was marked before the trial court, hence, the courts below cameto the conclusion that Ex.B7 also not proved by the defendants. Itis further pointed out by the courts below that the defendants 1 and2 in their written statement averred that notices were exchanged inthe year 1972, but DW1 in his evidence admitted that no notice wassent prior to Ex.B7, partition deed dated 25.02.1974.12.It is seen from the evidence of defendants witness thatthey were unable to say what are the properties allotted to theplaintiffs under Ex.B7, sale deed dated 25.02.1974. If reallypartition took place as alleged under Ex.B7 or in the year 1956, theproperties allotted to the plaintiffs could have been mentioned, butnothing mentioned by the defendants either in the written statementor in their evidence. The second plaintiff in his evidence statedthat in the year 1970, the first defendant has obtained his father'ssignature in a blank paper, but the said averment was not denied bythe defendants in their evidence. Considering the above saidevidence, the courts below came to a conclusion that Ex.B7 could havebeen cooked up by using the said signature in the blank paper.13.In so far as the allegation relating to imbalance mind ofthe deceased first plaintiff is concerned, the courts below came to aconclusion that he was not a lunatic but failed to concentrate in https://hcservices.ecourts.gov.in/hcservices/ family affairs. The said finding of the courts below that the firstplaintiff not shown any interest in the family affairs, hence thesuit properties were managed by the first defendant is perfectlyvalid and the argument of the counsel for the appellants in thisaspect is rejected.14.Similarly, the averment that the properties covered underExs. B1, B2, B3, B4 and B6 were purchased from the income of theancestral property in the name of the first defendant is concerned,the courts below rightly pointed out that the second defendant,though took defence on the same lines of first defendant, nodocumentary evidence was produced by him to show that some of theproperties were allotted to him, hence, the findings of the courtsbelow that the entire property were managed by the first defendant isvalid.15.In this context, it will be useful to refer the decision ofthe Honourable Supreme Court reported in (Ramaiah and another vs.Pechi Ammal and others) 1977 (1) TLNJ Page No.7 wherein a DivisionBench of this Court held thus:-"....If the properties are acquired by amanager of a Hindu joint family and if thoseproperties stand in his name and if suchacquisitions are made in the course of hismanagement as manager of the joint family, thenthe burden shifts on him to establish that suchproperties are his own and they are not jointfamily properties. In a case where suchacquisitions are questioned, it is not for thechallenging co-parcener to establish as alreadyexpressed by us; but it is for the challengingmanager to show by independent evidence that theacquisitions made by him and in his name are theresult of an independent activity of his, totallyunconnected with the joint family nucleus or itsincome. These are well establishedpropositions." 16.In this case, it is alleged by the first defendant that hepurchased the suit properties out of his self-earned funds, hence,the onus lies on him to prove, but he failed to prove the same. 17.Even certain cases where a manager of joint Hindu familyblends his self-acquired property with the property of the jointfamily, the effect is that all the properties so blended becomes ajoint family property as held in (Rajanikanta Pal and others v.Jagmohan Pal) (1923) 44 MLJ 561 in which the Privy Council held that"where a member of a joint Hindu family blends his self acquiredproperty with the property of joint family, either by bringing hisself-acquired property into a joint family account, or by bringingjoint family property into his separate account, the effect is thatall the property so blended becomes a joint family property." Thesaid decision of the Privy Council was also extracted by the https://hcservices.ecourts.gov.in/hcservices/ Honourable Supreme Court in the decision reported in (MallesappaBandeppa Desai and another vs. Desai Mallappa alias Mallesappa andanother) 1962 II MLJ 154.18.In view of the above discussion, this Court is of theconsidered view that the judgment and decree of the courts below areperfectly valid and interference of this Court is not warranted,besides, there is no question of law, much less substantial questionof law involved in this second appeal.19.In the result, the second appeal is dismissed. No costs.rshSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional Special Judge Krishnagiri2. The District Munsif District Munsif Court Hosur, Krishnagiri District3. The Record Keeper, Vernacular Records Section High Court of Madras Madras – 600 1041 cc to Mr.M.V.Krishnan, Advocate, SR.17125sgl (co)dv/19.5.06SA No. 274 of 1996