High Court · 2007

In the High Court of Judicature at MadrasDated:06.02.2007CoramThe Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYANSecond Appeal No.599 OF 19971. Shantha Mani2. Jayalakshmi3. Dhanalakshmi4. Premavathi..Appellants/ Plaintiffsv1. Palaniammal2. Venugopal3. Sushila Devi..Respondents/ DefendantsThis second appeal is filed against the judgment and decreedated 31.7.1995 made in A.S.No.241 of 1993 on the file of the Courtof first Additional District Judge, Salem confirming the decree andJudgment dated 5.5.1993 in O.S.No.69 of 1985 on the file of theCourt of Subordinate Judge,Sankari.For Appellants: Mr.V.RamajagadeesanFor Respondents : Mr.D.S.PhilipJUDGMENTThis appeal has been preferred against the Judgment anddecree in A.S.No.241 of 1993 on the file of the Court of IAdditional District Court, Salem. The plaintiffs in O.S.No. 69 of1985 on the file of Court of Sub Court, Sankari are the appellantsherein. The plaintiffs who have lost their case before the Courtsbelow have preferred this second appeal.2.The short facts of the case of the plaintiffs in theplaint relevant for the purpose of deciding this appeal are asfollows:The plaintiffs are the daughters of Ramasamy Chettiar, who is thebrother of the first defendant. The first defendant had two morebrothers by name Venkatappa Chettiar and Rangasamy Chettiar. Thesaid four brothers were members of a joint family. Theplaintiffs' father and his brothers partitioned their joint family https://hcservices.ecourts.gov.in/hcservices/ properties on 9.12.1940 under a registered partition deed.Thus,the status of the joint family between the said brothers cameto an end and thereafter they have been doing business of theirown and were acquiring properties in their own names. The plaintschedule property was purchased by the plaintiffs' father RamasamyChettiar for proper and valid consideration on 14.1.1953 under aregistered sale deed from one Subramania Chettiar and his sons.From the date of purchase, Ramasamy Chettiar was paying land tax tothe suit property and was also in possession and enjoyment of thesame and has improved the suit property considerably. The firstdefendant who is none other than the paternal uncle of theplaintiffs owns two houses bearing Door Nos.3 and 5 in SeerangaChettiar Street in Komarapalayam and is living there with hisfamily. The said houses are situate in a narrow street with noproper access for vehicular use. The two houses of the firstdefendant are not contiguous and the houses were not sufficient forthe accommodation of the first defendant and his family. The firstdefendant approached the plaintiffs' father in or about January1972 requesting him to permit the first defendant to occupy thesuit property,which is a house, till lthe first defendant couldconstruct a convenient house of his own for his family use.Considering the relationship and the fact that the suit propertywas vacant, the plaintiffs' father permitted the first defendant inJanuary 1982 to occupy the suit house, and the first defendant inpursuance of the said permission occupied the suit house andpromised to vacate the suit house as and when he put up a separatehouse. Thus, the first defendant was inducted in possession of thehouse as a Licensee. 2a) Subsequently, the first defendant put up his ownconstructions in Cauvery Street. The plaintiffs' father, in March1976 cancelled the Licence granted to the first defendant anddemanded the possession of the suit house. The first defendant isdragging to vacate the said house on the ground that his newconstruction is pending completion. Hence November 1978, he againdemanded the first defendant to deliver possession of the suithouse. The first defendant completed constructing his house in orabout 1979 January, but failed to vacate the suit house.2b) The plaintififs' father by a registered settlement deeddated 5.3.1979 settled the suit house in the name of plaintiffsand they have been paying the property tax to the Municipality.After the settlement in their favour, the plaintiffs also demandedthe first defendant to deliver possession, but he has not handedover the possession. Hence the suit notice was issued by theplaintiffs on 23.5.1982 to the first defendant calling upon him tovacate and deliver the vacant possession of the suit property. Thefirst defendant was served with a notice on 25.5.1982. Hence the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs are constrained to file this suit for declaration ofplaintiffs' title, for delivery of vacant possession and fordamages at the rate of Rs.250/- per month from the date of suittill the date of delivery and for costs.3. Defendants 1 and 2 have filed a joint written statementcontending as follows:The plaintiffs are the daughters of Ramasamy Chettiar, who is thebrother of the defendant. The defendant has two more brothers byname Vengadappa Chettiar and Rangasamy Chettiar. The said fourbrothers including their father V.R.Sikkappaiah Chettiar ofKomarapalayam were members of a joint Hindu undivided family whichowned certain properties. The defendant and his two brothers weredoing business in Malaysia and making regular remittance out oftheir business earnings in Malaysia to the said Ramasamy Chettiarwho was at that time at Komarapalayam in India. The said RamasamyChettiar was also simultaneously doing business at Komarapalayampurely out of the funds received from his brothers on behalf of thejoint family. For convenience, most of the properties werepurchased in the name of the said Ramasamy Chettiar. Thus, theywere holding all such properties as tenants-in-common. Each memberof the joint family held certain properties in their possession andcontinued to enjoy the same. In this manner, the defendant had twohouses in Seeranga Chettiar Lane in his possession. Similarly thesuit property at Door No.18, Cauvery Street, Komarapalayam was alsoone of the properties that was in the defendants' possession andpeaceful enjoyment. Thus, the defendant has been in anuninterrupted possession continuously and peaceful possessionenjoyment of the same right from 1955 till now. The defendant hadentered into an agreement with his neighbour M.S.Sabapathy Mudaliarfor making some additions and alterations in their premsies on24.11.1956. He has been regularly paying the land tax of the suithouse to the Appurajarpalayamchatram Trustees at Komarapalayam towhom the land belongs. He has also been regularly paying the housetax in respect of the suit property to the Komarapalayam TownPanchayat and later to Municipality. There was oral partition in1968, according to which the shares of each member of the jointfamily including the said Ramaswamy Chettiar was expressed clearlyin equal numerical divisions in the form of schedule as prepared atthat time. As such the suit property was one of the propertiesthat come to the defendant's share and thus he acquired and becamethe absolute owner of the suit property and has been in continuouspossession and enjoyment of the same till now. The defendant hasthus acquired right, title or interest over the suit property andnobody else. The partition was subsequently confirmed by aPanchayat Award given on 13.4.1973 among the four brothersincluding the plaintiffs' father. Therefore, the defenant isonly the absolute owner of the suit property and nobody else. https://hcservices.ecourts.gov.in/hcservices/ 3a) The partition deed of 1940 mentioned above has nothingto do with the partition which took place in the year 1968. Theproperties mentioned in the partition deed of 1940 were acquired atKomarapalayam as joint family property out of the funds earned froma Textile business jointly in Malaysia in or about 1938 by thedefendant and his three brothers. R.Mari Chettiar and SikkappaiahChettiar are the sons of V.Rangasamy Chettiar of Komarapalayam.Subsequently, R.Mari Chettiar died leaving his wife, Marakkal.Among the four brothers S.Vengadappa Chettiar was the eldest whowas given the major share of the immovable properties that werepartitioned among them in 1940 with a view to maintain the saidMarakkal, Sikkappaiah Chettiar and his wife Nagammal during theirlife time and to perform the funeral rites etc., after their death.This partition took place then in view of the differences thatarose among the members of the joint family. Therefore, thepartition deed has absolutely no connection or relevancy to thepartition of 1968. The paritition of 1968 relates to theproperties acquired jointly after about 1940 by the defendant andhis three brothers out of the trade carried out jointly both inMalaysia and India. The properties partitioned in 1968 among thedefendant and his three brothers including the plaintiffs' fatherwas so huge that could not have been acquired in 1940 when theproperties partitioned as per the partition of 1940 were verymeagre and negligible and as such it bears a clear testimony to thefact that 1940 partition is quiet different from 1968 partition andeach has no relevancy or connection whatsoever with the other. Itis not correct to say that the plaintiffs' father and brotherspartitioned their joint family property on 9.12.1940 itself. It isalso not correct to state that the status of the joint familybetween the brothers came to an end and thereafter they have beendoing business of their own and were acquiring properties in theirown names. In the light of the above facts, the defendant affirmsthat the suit property is one of the properties acquired out of thehuge joint family properties that are clearly defined in theschedule to the Panchayat Award and that such huge properties couldbe acquired only during a longer period and by members of the jointfamily.3b) It is true that the suit property was purchased in thename of Ramasamy Chettiar out of the joint family funds as statedabove only for the purpose of convenience and not from his own selfearning as falsely alleged in the plaint. The mere fact that itwas purchased in his name and the said sale deed stands in hisfavour does not render the suit property his separate property forall that is perfectly consistent with the notion of its being jointproperty as clearly explained above. It is not correct to saythat the plaintiffs' father was paying the property tax to the suitproperty. On the other hand, the first defendant was paying theproperty tax to the suit property. The plaintiffs' father was never https://hcservices.ecourts.gov.in/hcservices/ in possession and enjoyment of the suit property and has also givenany improvement to the suit property. The first defendant is incontinuous possession and enjoyment of the suit property right from1955 till now. The defendants are having two houses bearing doorNo.3 and 5 in Seeranga Chettiar lane at Komarapalayam and they areindeed situate in a narrow street. The averments in the plaint thatthe first defendant was in occupation of one of the houses aslicensee is incredible and totally a false story concocted for thepurpose of this case. After partition in the yer 1968,theplaintiffs' father has no right or title in respect of the suitproperty. The plaintiffs' father's right has been forefeitued inlieu of the sale deed dated 14.1.1953. The said sale deed became anullity after the partition in 1968. Likewise, the allegedregistered settlement deed dated 5.3.1979 executed in favour of theplaintiffs by their father based on the sale deed dated 14.1.1953is also void. The first defendant is paying tax to the suitproperty. The plaintiffs have no right to demand possession fromthe defendants, since the settlement deed itself is also not validand is not acted upon. The acquisition of the suit property by thedefendant in about 1955 is a valid one. Hence the suit is liable tobe dismissed4. The third defendant has filed additional written statementcontending as follows:It is false to state that the first defendant approached theplaintiffs' father in or about January 1972 requesting him topermit the first defendant to occupy the suit property which is ahouse till the first defendant could construct a convenient houseof his own for his family use. It is equally false to allege thatthe plaintiffs' father permitted the first defendant in January1972 to occupy the suit house. The first defendant was inducted inpossession of the house as a licensee. There is no question oflicensee at all. The defenants are the owners of the suitproperty and they are in possession and enjoyment of the suitproperty. The house in the suit land is a leasehold property sinceit belongs to Appurayapuram Chatram Trustees. The trustees of theabove said Appurayapuram Chatram leased out the land for lease andthe defendants are paying lease rent to the Appuraya ChatramTrustees. The said Appuraya Chatrams Trustees are also necessaryparty to the suit. The suit is bad for non joinder of necessaryparty. The suit is to be dismissed .5. The plaintiffs have filed a reply statement denying theaverments in the written statement filed by the defendants.6. On the above pleadings, the trial Court had framed sevenissues and two additional issues for trial. On the side of theplaintiffs, P.Ws 1 to 3 were examined and Exs A1 to A 36 weremarked. On the side of the defendants , D.Ws 1 to 3 were examined https://hcservices.ecourts.gov.in/hcservices/ and Exs B1 to B37 were examined.7. After going through the oral and documentary evidence letin by both sides, the learned trial Judge has come to a conclusionthat the plaintiffs are not entitled to any relief asked for inthe plaint and consequently dismissed the suit without costs.Aggrieved by the findings of the trial Judge, the plaintiffs havepreferred appeal in A.S.No.241 of 1993 before the first additionalDistrict Judge,Salem who also dismissed the appeal confirming thedecree and judgment of the trial Court without costs whichnecessitated the plaintiffs to approach this Court in Secondappeal.8. The substantial question of law involved in this appeal is" Whether in law, after a division of familyby both in status and metes and bounds, withouta plea of reunion, the Courts below have erredin law, in assuming that the business carriedon under the name and style of SikkapaiyaChettiar and Co., was a joint family businessand that the suit property was acquired fromand out of the income from the said jointfamily business?9. The Point:The plaintiffs are the one of the brothers sons of the firstdefendant. According to the plaintiffs, their father RamasamyChettiar had executed EX A1 settlement deed in respect of the suitproperty in favour of them on 5.3.1979 and that their fatherRamasamy Chettiar got the suit property under Ex A35 sale deeddated 14.1.1953. The plaint schedule property is a house and landmeasuring east west 27 ¾ feet, north south 100 feet with a housecomprised of an extent of 90 sq.metre at Cauveri Street,Pazhiyapettai, Komarapalayam Agraharam, Komarapalayam. EX A1settlement deed was executed by Ramasamy Chettiar, the father ofthe plaintiffs on 5.3.1979. In Ex A1, Ramasamy Chettiar hasmentioned about the parent document Ex A35 dated 14.1.1953 in orderto show how he became entitled to the property. Even in Ex A1, ithas been stated that the land conveyed under EX A1 belongs toAppurayapuram Chatram of Kumarapalayam and that the lessee isliable to pay a sum of Rs.7/- per year to the trustees ofAppurayapuram Chatram and it has been further directed in Ex A1that the settlee under Ex A1 have partitioned the house situate inthe above said land equally among themselves. The predecessors-in-title viz., Ex A35 dated 14.1.1953 will go to show that oneVelayutha Chetty , Arunagiri Chetty and Shanmugamchetty haveexecuted EX A35 in favour of Ramasamy Chettiyar. The schedule toEx A35 shows that the property sold under Ex A35 belongs toAppurayapuram Chatram Trust and that the trustees viz., Subramani https://hcservices.ecourts.gov.in/hcservices/ Chettiar had executed a lease deed and as per the lease deed thevendor is liable to pay Rs.7/- per year to the said trust and thevendee under Ex A35 was also directed to pay the above said leaseamount to the said trust. So it is clear from Ex A35 documentitself that settlor under Ex A1 viz., Ramasamy Chettiar had notderived any absolute right in respect of the suit property under ExA35 and the suit land belongs to the Trust by name AppurayapuramChatram Trust. If at all, the lease in respect of the suitproperty is to be created, it can be created only by the trust ofAppurayapuram Chatram,but Ex A35 was not executed by the trusteesof Appurayapuram Chatram Trust. Only a lessee under theAppurayapuram Chatram Trust viz., Velayutha Chetty , ArunagiriChetty and Shanmugachetty, have executed Ex A35. The recital in ExA35 shows that one Subramania Chettiar as a trustee ofApppurayapuram Chatram Trust had executed a lease deed in favourof the vendor under Ex A35. But the said lease deed in favour ofthe vendors under Ex A35 said to have been executed by SubramaniaChettiar as a Trustee of Appurayapuram Chatram Trust was notfiled in this case. So it is clear that in Ex A 35 under Ex A1,settlement deed Ramasamy Chettiar has no right to the said propertywhich belonged to Appurayapuram Chatram Trust. The learned firstappellate Judge in his Judgment in A.S.No.241 of 1993 at paragraph13 has clearly observed that under Ex A1 dated 5.3.1979, thesettlor viz., Ramasamy Chettiar has no right to execute the same inrespect of the suit property which belonged to AppurayapuramChatram Trust. Both the Courts below have concurrently come to acorrect conclusion that under Ex A1 , the plaintififs cannot claimany right in respect of the plaint schedule property which belongsto the Trust.10. With regard to the house in the suit property, it is thedefinite case of the brother of Ramasamy Chettiar viz., GovindasamyChettiar, the first defendant that the house was constructed by himand he is residing in the house. Pending suit, first defendantdied. The third defendant is the son of first defendant.4thdefendant is the daughter of first defendant. 11. D.W.1 would depose that his father and his brothersRamasamy Chettiar, Rangaswamy Chettiar, Vengadappa Chettiar hadtextile business at Malaysia in the name of Chichappaiya Chettiarand Sons and that only from the joint family income, the suitproperty was purchased by Ramasamy Chettiar under Ex A35 and thatthe suit house is situate on the west of land purchased under ExA35 and that the said land in which the suit house is situate waspreviously a ginning factory was owned by 'Sabapathy Mudaliarand' that the wall on the east and west running north to south tothe plaint schedule property is a common wall and that the saidginning factory was purchased by D.W.1's son from SabapathyMudaliar and that with regard to the common wall D.W1 and his sons https://hcservices.ecourts.gov.in/hcservices/ entered into an agreement with Sabapathy Mudaliar to provide airand light to his house through the said wall by providingventilation and that Ex B15 is the said agreement and that from1955 onwards his father was residing in the said suit house andthat Exs A16 to A24 are the house tax receipts. Exs A25 and A27are the "B" memos issued by the Municipality in respect of the saidhouse. Under such circumstances, it cannot be said that theplaintiffs have derived title in respect of the suit property underEX A1 ie .,in respect of the land as well as the house. Both theCourts below have concurrently held that the plaintiffs areneither entitled to the relief of declaration nor an order ofrecovery of possession in respect of the suit which is neitherillegal nor infirm to warrant any interference from this Court.Point is answered accordingly.12. In fine, the second appeal is dismissed confirming thedecree and Judgment in A.S.No.241 of 1993 on the file of the Courtof first Additional District Judge, Salem with costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. 1st Additional District Judge, Salem2. The Subordinate Judge, Sankari.3. The Section Officer, VR Section, High Court, Madras.Second Appeal No.599 of 1997TEJ (CO)kk 23/2