High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:19.1.2007Coram:The Honourable Mr.Justice J.A.K.SAMPATH KUMARA.S.No.180 of 19931.Krishna Gounder2.Rajendran3.Nalayini.. Appellants/Defendants1, 3 & 4-Vs-1.Venda Ammal2.Minor Renuka3.Minor Veeramani 2 and 3 represented by their mother and natural guardian Venda Ammal... Plaintiffs 1 to 3 and4.Thurukki.. Respondents/Defendant No.2The Appeal is filed Under Section 96 of the Civil Procedure Codeagainst the Judgment and decree dated 16.10.1992 made in O.S.No.7 of 1987on the file of the Sub Court, Arani, Nort Arcot-Ambedkar District. For Appellants : Mr.K. Rajendra prasad For Respondents : Mr.R.Gopalakrishnan 1 to 3For Respondent4: Not AppearedJUDGMENTThis appeal is filed by defendants 1, 3 and 4 against the judgmentdated 16.10.1992 in O.S.No.7 of 1987, on the file of the Sub Court, Arani,Nort Arcot-Ambedkar District in and by which, the learned Sub Judge afteranalysing the evidence in depth decreed the suit for partition of suitproperty granting the due share according to the entitlement of theplaintiff.2. For convenience, the parties are referred as arrayed in theoriginal suit. 3. The suit properties are the joint family properties of thedefendants and the deceased husband of the first plaintiff, who constitutea member of an undivided Hindu Joint family. Certain of the properties https://hcservices.ecourts.gov.in/hcservices/ have been acquired by the first defendant from his aunt one Valliammal, byregistered settlement deed dated 20.2.1965 and certain of the propertieswere settled in favour of the defendants 2 and 3 and the deceased Perumal,husband of the first plaintiff, by the father of the first defendant undera Registered settlement deed dated 11.12.1980.3.1. The properties were treated and enjoyed by the defendants and thedeceased Perumal as the joint family properties with other joint familyproperties for several decades.3.2. The lands of the said joint family were fertile and were yieldingquite considerable income and afforded sufficient nucleus for the purchaseof the other properties by the said joint family, some of them standing inthe name of the first defendant as the manager and kartha of the saidjoint family. 3.3. The said joint family has also effected lots of improvements bythe joint exertion and have made them so fertile which afforded thenucleus aforesaid due to such exertion by the members of the said jointfamily.3.4. While so, taking advantage of the sudden demise of the husband ofthe first plaintiff, who was a member of the joint Hindu family and thedefendants have become hostile towards the plaintiff and the plaintiffsare being illtreated by the defendants. In fact they were not even giventheir due and legitimate share in the income from the joint family landsever since the death of the husband of the first plaintiff. 3.5. After the death of the husband of the first plaintiff, there wereincohate attempts for the partition including the one in the presence ofpanchayatdars and the defendants were not willing to effect and deliverthe plaintiffs due share. Hence, the suit.4. Defendants 1 to 3 states as follows:-4.1. The relation ship of the parties mentioned in the plaint alone isadmitted. It is also true that Perumal died on 3.9.86 at Siravanjipattuvillage. None of the suit properties were treated and enjoyed as jointfamily property by the defendants at any point of time. The defendantssubmit that the suit properties are not joint family properties. Theplaintiffs have not filed any document to show that the suit propertiesare joint family properties and they are entitled to 1/4th share in thesame. The 1st defendant was allotted only 2.54 acres of land in thepartition held between himself and his brothers on 19.5.67. The rest ofthe properties mentioned in the plaint are all the self acquiredproperties of the first defendant. 4.2. The lands allotted to the share of the first defendant were notincome yielding properties. The lands do not possess water resources. https://hcservices.ecourts.gov.in/hcservices/ The lands allotted to the first defendant are unproductive lands and theyare not income yielding properties. The income from the above said landsare hardly sufficient to maintain the family even. The first defendanthas been doing business in hayrick cattle. Vegetables and goats and outof his hard work and labour the first defendant acquired about 15 acres ofland. He has also constructed a terraced house and all the propertiesacquired by the defendants are self acquired properties and they cannot becalled joint family properties. The first defendant never treated hisself acquired properties as joint family properties at any point of time.Neither the 2nd defendant and 3rd defendant nor the plaintiffs the heirs ofPerumal are entitled to any share in the properties acquired by the firstdefendant. There was no sufficient joint family nucleus to acquireproperties by the first defendant. All the properties acquired by thefirst defendant are his own self acquired properties and they wereacquired without the said of the joint family property income. The firstdefendant out of his hard work and labour and by doing business acquiredthe properties in his name. The plaintiffs have deliberately describedthe self acquired properties of the first defendant as joint familyproperties in order to claim larger share in the suit properties. 4.3. One Valliammal, executed the settlement deed dated 22.2.1965 infavour of Rathina Gounder, Krishna Gounder and Raya Gounder, sons of MuniaGounder conveying the lands bearing S.No.110/3 0.05 acres 114/4 0.12 acres112/3 0.71 acres and S.No.116 0.10 ½ acres by the registered settlementdeed dated 22.2.1965. The first defendant has been enjoying the above saidproperties purchased under the above said sale deeds in his own right andas absolute owner. The properties covered by the above sale deeds aresituate at Suruvanjipattu village, Cheyyar Taluk.4.4. Item Nos.1 to 4 and 42, 43 and 44 are also the self acquiredproperties of the first defendant. The terraced house described in itemNo.44 was constructed by the first defendant out of his own funds. Theplaintiffs or the defendants 2 and 3 are not entitled to any share in theself acquired properties of the first defendant. 4.5. No amount is deposited in the Vembakkam Village Credit Co-operative Bank in the name of the first defendant. No amount is also duefrom Parthasarathy Mudaliar of Irumaram village. The pronotes mentionedin item Nos.12 to 18 are alone true. But all the pronotes are in thecustody of the plaintiffs. The amount advanced under the above saidpronotes belong to the first defendant. The loan advanced to the personsmentioned in item Nos.12 to 18 are the separate funds of the firstdefendant except the promissory note dated 13.1.1984 executed by Rajendranin favour of the second defendant. The second defendant is entitled tothe amount mentioned as item No.14 of the 'B'Schedule. Perumal before hisdeath stealthily removed all the pronotes described as item Nos.12 to 18in the plaint. The plaintiffs are bound to produce the above pronotesbefore the Court. Perumal before his death also took a sum of Rs.20,000/-from the first defendant and deposited the amount in the Indian Bank,Randham Branch. The plaintiffs are bound to render account for the said https://hcservices.ecourts.gov.in/hcservices/ amount.4.6. The defendants are willing to give the plaintiffs all theirlegitimate share in the ancestral property. 5. The additional written statement of the second defendant reads asfollows:-5.1. The husband of the first plaintiff died on 3.9.1986 leaving behind the plaintiffs and the fourth defendant to succeed to his estate.The properties are all the joint family properties which are acquired fromout of the nucleus afforded by the ancestral joint family property and outof joint exertion of this defendant; defendants 1, 2 and deceased Perumal.The properties include the properties given to them by way of settlementby their grand father and also the property given to the first defendantby his aunt, thereby all the properties were drawn into the common hotchpot to be treated as joint family property all along and they have beentreating the same as such. It has never been treated as self acquiredproperties of any of them including the first defendant.5.2. Before the death of Perumal on 22.8.1986, there was a partitionby metes and bounds amongst the first defendant, second defendant, thirddefendant and the deceased Perumal evidenced by a document which was to beregistered shortly but unfortunately the said Perumal died on the samenight of execution of the said partition deed dated 22.8.1986. The saiddocument will bear testimony to the aforesaid facts.5.3. Taking advantage of the death of Perumal, the first defendant, inorder to defeat the rights of the plaintiffs refused to give share towhich they are legitimately entitled to and started appropriating theincome for the family, without giving their due shares. 5.4. In fact there are also attempts for a partition as per thedocument referred to above. There are amounts standing to the credit ofthe first defendant in the banks referred to in the plaint in which alsothe defendants are entitled to a share. 5.5. The second defendant is also entitled to 1/4th share in all theplaint schedule properties. The second defendant has no objection for adecree being passed in favour of the plaintiffs.5.6. Fourth defendant did not appear and objected the claim ofplaintiff.6. First plaintiff examined as P.W.1. M/s.Subramanyan and Subramanyanwere examined as P.W.2 and P.W.3. Ex.A.1 was marked on the side of theplaintiffs. The first and second defendants were examined as D.Ws.2 and 1.One Rajamanickam was examined as D.W.3. Exs.B.1 to B.39 were marked onthe side of the defendants to confront the claim of the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

7. The lower court after analysing the evidence in depth found thatthe plaintiffs are entitled to 1/4th share in the suit property andaccordingly granted the preliminary decree. Against which the presentappeal is filed by defendants 1, 2 and 4. The fourth defendant is noneother than wife of the first defendant. Second defendant is none otherthan the son of the first defendant. 8. Heard Mr. K.Rajendran Prasad, learned counsel for the appellantsand Mr.R.Gopalakrishnan, learned counsel for respondents 1 to 3. 9. Upon hearing the rival claims, the only point for consideration iswhether the plaintiffs are entitled for the share of the suit property inpursuance of partition deed dated 22.8.1986 which is marked as Ex.A.1? Point 1:- It is the case of the plaintiffs that the suit property isjoint family property of the defendants and husband of the first plaintiffwho constitute a member of the un-divided Hindu joint family. Originally,defendants 1 to 3 jointly filed written statement, confronting the claimof the plaintiffs. Thereafter, the second defendant filed additionalcounter supporting the case of the plaintiffs while confronting theobjections, the defendants 3 and 1. The fourth defendant did not resistthe claim of the plaintiff. Without making any objection in the suit, thefourth defendant now filed the present appeal along with the defendants 3and 1. The plaintiff relied on Ex.A.1 i.e. Partition deed dated 22.8.1986to sustain the claim. The genuineness of Ex.A.1 was spoken in detail byP.Ws 2 and 3. Though the said partition deed was signed by the defendantsand the deceased husband of the first plaintiff, the same could not beregistered due to sudden death of the husband of the first plaintiff. Thegenuineness of Ex.A.1 was not confronted by the defendants. In fact, thefirst defendant admitted that the suit property is joint family propertyand entered into a deed of partition along with other persons who haveshare in the suit property. It is also admitted by the first defendantthat the suit properties are not his self acquired properties. It isfurther admitted that the defendants along with the deceased husband ofthe first plaintiff are entitled to the suit property. More over, thedefendants have not filed any document to show that certain propertiesstanding in their name were purchased out of their own income. Furtherthe defendants failed to prove by any documentary evidencing that therewas no income derived from the family estate of the first defendant orthat the property is standing in the respective name were purchased out oftheir own income. In fact, the lower court considered the evidence indepth and found that the suit property in the joint family property of thedefendants and deceased husband of the first plaintiff, who constitute amember of the undivided Hindu joint family. The lower court has also rendered specific finding that certain propertiesstanding in the name of the defendants were purchased out of the jointfamily estate. So, I am satisfied that the plaintiffs are entitled to1/4th share in A and B schedule property. The lower court rightlyanalysing the evidence in depth came to the conclusion that the plaintiffsare entitled to 1/4th share in the A and B schedule property. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, granted the preliminary decree.10. I do not find any illegality or irregularity in the finding of thetrial Court.The finding of the lower Court is in order and does notrequire any interference. Accordingly, the appeal fails and the same isdismissed. Parties have to bear the respective costs.nvsriSd/-Assistant Registrar/true copy/Sub Assistant Registrar.To 1.The Sub Court, Arani,Nort Arcot-Ambedkar District.2. The Record Keeper V.R. Section, High Court, Chennai+ One cc to Mr. R. Tirugnanam Advocate SR 3252+ One cc to Mr. P. Srinivas Advocate SR 3307KLT (co)sg 13/2/07 https://hcservices.ecourts.gov.in/hcservices/ J.A.K.SAMPATH KUMAR, J.nvsri Judgment in A.S.No.180 of 1993 Dated: 19.1.2007