Pachayammal v. Nachimuthu Gounder (deceased) — 1984 DIGILAW 213 (MAD)

JUDGEMENT: 1. The plaintiffs in O.S. No. 227 of 1976, District Munsif's Court, Pollachi, who succeeded before the trial court and lost before the lower appellate court, are the appellants in this second appeal. The suit was laid by the appellants for a declaration that the lease deed dated 4th February, 1975, executed by the deceased first defendant in the suit in favour of the second defendant and a sale deed dated 21st February 1975, executed by the deceased first defendant in favour of the third defendant are null and void and invalid and not binding on the appellants, for partition of the A schedule properties into two equal shares and for possession of such a share or alternatively for delivery of possession of the A schedule properties to the first appellant, for a decree for recovery of possession of the B schedule properties in favour of the second appellant and for recovery of a meaner profits, costs etc. The first appellant is the wife of the deceased Kumaraswamy Gounder, who figured as the first defendant in the suit and the second appellant is their son. In a partition in the family of deceased Kumaraswamy Gounder on 2nd February, 1969, A and B schedule properties fell to his share. Under another document styled as a deed of partition, dated 12th April, 1974, the A schedule properties were allotted jointly to the share of the first appellant and deceased Kumaraswamy Gounder, while the B schedule properties were given to the second appellant. According to the case of the appellants, the first appellant and deceased Kumaraswamy Gounder were joint owners of A schedule properties except as regards an extent of 58 cents in S.F. No. 37/2 and the second appellant was the absolute owner of the B schedule properties. Nether the deceased Kumaraswamy Gounder nor the first appellant was competent under the terms of the document to alienate the A schedule properties without the concurrence of the other person Kumaraswamy Gounder fell into evil ways and was leading a wayward life which resulted in the appellants being driven out of the family. Nether the deceased Kumaraswamy Gounder nor the first appellant was competent under the terms of the document to alienate the A schedule properties without the concurrence of the other person Kumaraswamy Gounder fell into evil ways and was leading a wayward life which resulted in the appellants being driven out of the family. A publication was made by the appellants in the newspaper to the effect that the deceased Kumaraswamy Gounder bad no right whatever to deal with the A and B schedule properties; but in spite of it, Kumaraswamy Gounder colluded with respondents 1 and 2 in the second appeal and croated a lease deed in the name of the first respondent and a sale deed in favour of the third respondent in respect of certain properties. According to the appellants, deceased Kumaraswamy Gounder did not have any right whatever either to sell or even to lease the properties belonging to the first and second appellants and hence, the sale deed as well as the lease deed are null and Void and not binding on the appellants. Kumaraswamy Gounder died on 30th August, 1975 and thereupon respondents 3 and 4, his wife and mother respectively, were impleaded as defendants 4 and 5 in the suit as his legal representatives. Inasmuch as Kumaraswamy Gounder had also been adjudicated as an insolvent, the Official Receiver of Coimba-tore, the 6th respondent herein, was impleaded as the 6th defendant in the suit. 2. Excepting the 4th respondent in this second appeal, the rest had filed written statements disputing the claim made by the appellants. In the written statement filed by the first respondent, he questioned the status of the first appellant as the legally wedded wife of the deceased Kumaraswamy Gounder and stated that the third respondent alone is entitled to inherit the properties of the deceased Kumaraswamy Gounder as his legally wedded wife. Illicit intimacy between the first appellant and the deceased Kumaraswamy Gounder was pleaded and the docu. ment dated 12th April. Illicit intimacy between the first appellant and the deceased Kumaraswamy Gounder was pleaded and the docu. ment dated 12th April. 1974, on the basis of which the appellants claimed rights in the properties, was characterised as a collusive and void document not binding upon the first respondent The first respondent put forth the plea that he took possession of the properties leased out in his favour from one Deivanayagam and he had also in turn got recorded his name as a cultivating tenant and therefore, the first appellant was not entitled to dispute the validity of the lease deed in favour of the first defendant. The claim made by the first appellant to partition the suit properties as well as mesne profits and other incidental reliefs was also disouted by the first respondent. 3. In the written statement filed by the second respondent, he set up the plea that the document dated 12th April 1974 is not a true one, but was intended to defraud the creditors of the deceased Kumaraswamy Gounder and that he was a bona fide purchaser of the properties having obtained a sale deed for proper and valid consideration. The appellants, according to the second respondent knew about the circumstances under which the sale deed was executed in his favour and they were estopped from question-ing the validity of the same. The sale was also characterised as one intended for the benefit of the joint family and that the suit was stated to be bad for misjoinder of causes of action and parties. In an additional written statement filed by the second respondent, a plea was raised that the first respondent is the lawfully wedded wife of Kumaraswamy Gounder as he himself denied the relationship with the first appellant. The claim for partition made by the appellants was thus refuted by the second respondent 4. The third respondent in her written statement denied that the first appellant was the legally wedded wife of deceased Kumaraswamy Gounder and stated that she was only his concubine. The claim for partition made by the appellants was thus refuted by the second respondent 4. The third respondent in her written statement denied that the first appellant was the legally wedded wife of deceased Kumaraswamy Gounder and stated that she was only his concubine. The third respondent, according to her, was the legally married wife of Kumaraswamy Gounder and Kumaraswamy Gounder appeared to have contracted some sort of marriage with the first appellant which led to the filing of a complaint by the third respondent in C.C. No. 320 of 1954 during the trial of which Kumaraswamy Gounder denied the marriage between him and the first appellant. The second appellant, according to the third respondent, was not the son of the deceased Kumaraswamy Gounder and the appellants are not entitled to any share in the properties. The locus standi of the appellants to question the alienations made by the deceased Kumaraswamy Gounder, when he was alive, was also disputed. The document dated 12th April, 1974 on the basis of which the appellants claimed rights in the suit properties was claimed by the third respondent not to confer any rights whatever on the appellants. 5. In his written statement, the Official Receiver of Coimbatore stated that the deceased Kumaraswamy Gounder was adjudicated an insolvent on 17th February, 1975 in LP. No. 14 of 1975, Sub Court, Udumalpet and that the lease deed dated 4th February, 1975, as well as the sale deed dated 21st February, 1975 were alienations made by the deceased Kumaraswamy Gounder with an intention to defraud the genuine creditors and that those transactions are liable to be annulled under sections 53 and 54 of the Provincial Insolvency Act. The alienations, according to the 6th respondent, were invalid and not binding upon him. Finally, the 6th respondent stated that he had no objection whatever for the passing of the decree in favour of the appellants. 6. The alienations, according to the 6th respondent, were invalid and not binding upon him. Finally, the 6th respondent stated that he had no objection whatever for the passing of the decree in favour of the appellants. 6. On the basis of the aforesaid pleadings, the learned District Munsif, Pollachi, framed as many as eight issues and also an additional issue and on a consideration of the oral as well as the documentary evidence, found that the deceased Kumaraswamy Gounder married the first appellant as his second wife, that the marriage was not a valid one as per the provisions of Tamil Nadu Act IV of 1949, that under the document dated 12th April, 1974, rights in favour of the appellants in relation to the suit properties were conferred and the status of the appellants would not in any manner invalidiate such rights, that the lease deed executed by the deceased Kumaraswamy Gounder in favour of the first respondent herein was invalid in so far as the shares of the appellants were concerned and were also not binding on them, that the sale deed dated 21st February, 1975 in favour of the second respondent herein was also likewise invalid and not binding on the appellants, that the suit was not bad for misjoinder of parties or causes of action, that the first appellant was entitled to partition of the A schedule properties and the second appellant was entitled to recover possession of the B schedule properties and that they were also entitled to mesne profits which was directed to be ascertained in the course of separate proceedings. Ultimately, the first appellant was held entitled to a partition and separate possession of a half share in the A schedule properties and the second appellant was held entitled to delivery of possession of B schedule properties and a decree was granted accordingly, Aggrieved by this, the first respondent and the third respondent preferred A.S. Nos. 1 of 1978 and 35 of 1978 before the Sub Court, Udumalpet. 1 of 1978 and 35 of 1978 before the Sub Court, Udumalpet. Considering the evidence relating to the marriage between the first appellant and deceased Kumaraswamy Gounder, the learned Subordinate Judge was of the view that such a marriage was solemnised, but it was so done during the subsistence of the first marriage between the deceased Kumaraswamy Gounder and the third respondent herein and as such, the second marriage was not valid as per the provisions of Tamil Nadu Act VI of 1949. Dealing with the question of conferment of rights to the properties involved in the suit, under the document dated 12th April, 1974, The learned Subordinate Judge was of the view that the document dated 12th April, 1974 was neither a settlement deed nor a gift deed and therefore, the appellants did not derive any right, title or interest to the properties in their favour under that document. It was therefore further hold by the learned Subordinate Judge that the deceased Kumara-swamy Gounder had the right of dealing with and disposing of the properties and therefore, the lease deed and the sale deed executed by him on 4th February, 1975, in favour of the first respondent and the second respondent would be valid and cannot be questioned by the appellants. In view of these conclusions, the suit instituted by the appellants was dismissed. It is the correctness of this that is challenged by the appellants in this second appeal. 7. During the pendency of the second appeal, the second appellant, who was a minor, attained majority and had been declared as a major as per order in C.M.P.No. 15596 of 1983, The first respondent in the appeal (second defendant in the suit) also died and his legal representatives have been brought on regard as respondents 6 and 9 in this second appeal as per orders in C.M.P.Nos. 3422 and 3423 of 1982 dated 1st December, 1983. 8. The contention of the learned counsel for the appellants is that even on the basis of the conclusion arrived at by the courts below that the marriage between the deceased Kumaraswamy Gounder and the first appellant, though true, was not valid is correct, yet, that would not in any manner take away the rights conferred upon the appellants under the document Exhibit A-3 dated 12th April, 1974. According to the learned counsel, the properties dealt with under Exhibit A-3 dated 12th April, 1974, were all obtained by deceased Kumaraswamy Gounder on the strength of a partition that took place in his family in 1969 and thereafter Kumaraswamy Gounder was the sole surving coparcener in the branch of his family in that he did not have any son born in lawful wedlock and therefore it was open to Kumaraswamy Gounder to deal with the properties in any manner he liked and he dealt with the properties which were his absolute properties in the manner done under Exhibit A-3. It was also further pointed out that though the document Exhibit A-3 dated 12th April, 1974, is styled as a partition deed, yet, there could not have been a partition in law between deceased Kumaraswamy Gounder and the appellants as the first appellant was not the legally wedded wife of the deceased Kumaraswamy Gounder and the second appellant was not his legitimate son. Even so, the learned counsel contended that the document under Exhibit A-3 could be construed either as a deed of gift or a family arrangement and given effect to as such, It was further pointed out that if so given effect to, then the document would be a valid and operative document even though the first appellant did not fulfil the position of legally wedded wife, and the second appellant did not occupy the position of a legitimate son, as it was not the intention of the executant of the document that the properties should be taken by them, only if they fulfilled that particular capacity either as legally wedded wife or as a legitimate son. A point was also raised that if the document Exhibit A-3 was effective and valid as a family arrangement or gift, then, Kumaraswamy Gounder could not have exclusively dealt with the properties which were given to the share of the second appellant under that document or even the properties jointly allotted to the deceased Kumaraswamy Gounder and first appellant. A point was also raised that if the document Exhibit A-3 was effective and valid as a family arrangement or gift, then, Kumaraswamy Gounder could not have exclusively dealt with the properties which were given to the share of the second appellant under that document or even the properties jointly allotted to the deceased Kumaraswamy Gounder and first appellant. Attention was also drawn in this regard to the circumstances that in such a case the first appellant would have been the guardian of the second appellant and the deceased Kumaraswamy Gounder could not have represented the interest of the second appellant in entering into the transaction of lease with reference to the B schedule properties in favour of the deceased first respondent in this second appeal. Likewise, it was pointed out that the exercise of the power of alienation by deceased Kumaraswamy Gounder with reference to an item of property in the A schedule properties, in relation to which it was provided that the first appellant and the deceased Kumaraswamy Gounder together should exercise such powers, would be invalid. On the other hand, the learned counsel for the contesting respondents contended that the case that deceased Kumaraswamy Gounder, being the sole surviving coparcener and thus being entitled to exclusively deal with the properties or of the construction of Exhibit A-3 as a deed of gift or a family arrangement was not put forth at all and therefore, the appellants ought not to be permitted to fall back upon such a case. It was also further pointed out that there was no acceptance of the gift as such and therefore even as a gift Exhibit A-3 would fall. There was no plea, according to the learned counsel for the respondents, that the arrangement embodied in Exhibit A-3 would be in the nature of a family arrangement. Ultimately, the learned counsel submitted that the interpretation put upon the terms of Exhibit A-3 by the lower appellate Court is quite correct and cannot be taken exception to. 9. The conclusion of the Courts below that the marriage between deceased Kumaraswamy Gounder and the first appellant, though true, was not valid, was not challenged by the appellants before this Court. That would mean that the first appellant was not the legally wedded wife of Kumaraswamy Gounder and the second appellant was not his legitimate son. 9. The conclusion of the Courts below that the marriage between deceased Kumaraswamy Gounder and the first appellant, though true, was not valid, was not challenged by the appellants before this Court. That would mean that the first appellant was not the legally wedded wife of Kumaraswamy Gounder and the second appellant was not his legitimate son. The due execution of Exhibit A-3 by the deceased Kumaraswamy Gounder and its valid attestation by the attestors was also not disputed before this Court. Whether at the time when Exhibit A-3 was entered into, deceased Kumaraswamy Gounder had the intention of conferring rights in properties in favour of the appellants irrespective of their fulfilling the role either as legally wedded wife or as a legitimate son is the primary question that has got to be decided in this case. There is no dispute that deceased Kumaraswamy Gounder had become divided from the other members of his own family and he did not have any legitimate son, through the third respondent, who is the first wife. Admittedly, therefore, after the partition in 1969, under which the deceased Kumaraswamy Gounder obtained the properties dealt with under Exhibit A-3, deceased Kumaraswamy Gounder was the only person in his family or he could be termed as the sole coparcener with reference to his branch of the family. As he did not have male issues through the third respondent herein, in the position which deceased Kumaraswamy Gounder then occupied as the sole surviving coparcener for the time being, he was at liberty to dispose of properties which he got in the partition in 1969 in any manner he liked, as if they were of his own separate properties He could have sold them He could have mortgaged them even without legal necessity and he might have made a gift of the properties in that situation. But he made provision in favour of appellants 1 and 2 under the document Exhibit A-3 dated 12rd April, 1974. Though the document is labelled as one of partition, it is well established that the nomenclature is not really determinative of the true nature of the transaction; but that has got to be ascertained from the contents of the document. But he made provision in favour of appellants 1 and 2 under the document Exhibit A-3 dated 12rd April, 1974. Though the document is labelled as one of partition, it is well established that the nomenclature is not really determinative of the true nature of the transaction; but that has got to be ascertained from the contents of the document. The deceased Kumaraswamy Gounder was the sole surviving coparcener and there was no joint family as such which could have existed for the purpose of division of the properties between the members of the joint family. It is therefore really a misnomer to call this document as a deed of partition as normally understood in law. The document therefore was executed with the predominant intention of making provision for the first appellant and the second appellant who were considered by the deceased Kumaraswamy Gounder as persons who deserved such provision. It is seen from the recitals in the document that it is not because of the first appellant or the second appellant occupying the position either as wife or son as the case may be that deceased Kumaraswamy Gounder had thought of making the provision, as be did under Exhibit A-3. No doubt, in the preamble portion of the document Exhibit A-3. The first appellant is described as the wife and the second appellant is referred to as the son, but the operative portion of the document does not proceed to state that the provision is made because the first appel lant is related to the deceased Kumaraswamy Gounder as his wife and the second appellant is also likewise related to the deceased Kumaraswamy Gounder as his son. On the contrary, the document clearly states that the properties, which were obtained by the deceased Kumaraswamy Gounder in a partition in 1969, have been in the joint enjoyment of the Kumaraswamy Gounder and the appellants, that there was a panch-ayat wherein certain allotment of properties was made and that the document proceeds to effect a division of properties as suggested by the panchayatdars. In other words, the common enjoyment of the properties obtained by the deceased Kumaraswamy Gounder in the partition in 1969 by him and by the appellants had been put an end to and the properties have been separately allotted to the deceased Kumaraswamy Gounder and the first appellant together and the second appellant separately. In other words, the common enjoyment of the properties obtained by the deceased Kumaraswamy Gounder in the partition in 1969 by him and by the appellants had been put an end to and the properties have been separately allotted to the deceased Kumaraswamy Gounder and the first appellant together and the second appellant separately. The allotment of the properties is not therefore referable to the existence of any legitimate relationship in law between the deceased Kumaraswamy Gounder and the first appellant or the second appellant as the case may be. The document merely proceeds to reduce the joint possession of the three parties to Exhibit A-3 to separate possession or joint possession of two out of three not on account of the existence of any particular blood relationship among them. In additon, the document also refers to a panchayat and that would suggest that certion competing or rival claims whether in existence or even anticipated were taken into account as a result of which it was thought prudent and expedient to enter into the transaction evidenced by Exhibit A-3 making provision for the appellants and also for the deceased Kumaraswamy Gounder. The nomenclature given to this deed of partition as pointed out earlier, is really not decisive of the nature of the transaction. There is absolutely nothing wrong in construing this document as a family arrangement. It is true that in so many terms the appellants have not claimed that this would be a family arrangement, but it is only a different label which is given by them to Exhibit A-3 to sustain the allotment of the properties thereunder. No prejudice as such can at all be stated to have been caused to the respondents by the appellants being permitted to plead a family arrangement on the basis of the recitals in Exhibit A.3. 10. Considering the terms of Exhibit A-3, as a whole; it would not be unreasonable to upheld it as a family arrangement. No prejudice as such can at all be stated to have been caused to the respondents by the appellants being permitted to plead a family arrangement on the basis of the recitals in Exhibit A.3. 10. Considering the terms of Exhibit A-3, as a whole; it would not be unreasonable to upheld it as a family arrangement. It is not improbable that the deceased Kumaraswamy Gounder who was fully aware of his true relationship with the first appellant and the status of the second appellant might have though fit to make provision for the appellants with a view to allay disputes, existing or apprehended, in the interest of harmony in the family and for maintaining the reputation of his own family or even the preservation of property by making some provision for them. In such cases, it is wholly unnecessary that a dispute must be in existence actually or possibly in the future in respect of each and every item of property and amongst all members arrayed one against the other, but it would suffice if it is established that there was an actual or possible claim and a counter claim by the parties in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging the title in one to whom a particular property had fallen on the assumption of an actual existence in law that he had an anterior title thereto. It is this test that has been laid down of the Supreme Court in such cases in considering the validity of family arrangements. In the light of the aforesaid tests, it is at once clear that the arrangement under exhibit A-3 dated 12th April, 1974 could be upheld as a family arrangement entered into by the deceased Kumaraswamy Gounder as a result of a panchayat and in accordance with the decision given therein and such a transaction would be perfectly valid and binding that only on the appellants, but also on the deceased Kumaraswamy Gounder. 11. Under the arrangement Exhibit A-3 dated 12th April, 1974, the B schedule properties mentioned therein have been exclusively allotted to the share of the second appellant and the document proceeds to state that as and from that date, the second appellant is entitled to enjoy those properties without any right or claim from others. 11. Under the arrangement Exhibit A-3 dated 12th April, 1974, the B schedule properties mentioned therein have been exclusively allotted to the share of the second appellant and the document proceeds to state that as and from that date, the second appellant is entitled to enjoy those properties without any right or claim from others. With reference to the A schedule properties detailed in Ex A-3 dated 12th April, 1974, a joint interest in those properties had been created in favour of the first appellant and deceased Kumaraswamy Gounder except with reference to one item of property of an extent of 58 cents in Survey No. 37/2. It is also further provided that excepting that item, to deal with which exclusive rights were conferred in favour of the deceased Kumaraswamy Gounder, all other items should not be dealt with or sold exclusively either by the first appellant or by the deceased Kumaraswamy Gounder, but that any such dealing or alienation should be jointly done by the first appellant and Kumaraswamy Gounder. Thus under the document, which had earlier been upheld as a family arrangement, the second appellant gets exclusive title to the B Schedule proper-ties thereunder and thereafter none but him could have dealt with the properties. It has to be remembered that at the time of Exhibit A-3 dated 12th April, 1974, the second appellant was a minor and he was represented by his mother, the first appellant. The properties, which fell to the share of the second appellant, could not have been thereafter dealt with by the deceased Kumaraswamy Gounder. Similarly with reference to the A schedule properties, excepting an extent of 58 cents of land, deceased Kumaraswamy Gounder could not have dealt with any of the other items in the teeth of the provision made under Exhibit A-3 as per which deceased Kumaraswamy Gounder and the first appellant had to join together in dealing with or disposing of any of the A schedule items. Inasmuch as the provisions under Exhibit A-3 have to be given effect to as a family arrangement, it follows that after that date, deceased Kumaraswamy Gounder did not have any right whatever either to alienate the property in favour of second respondent or to lease out the same to the deceased first respondent in the second appeal. Inasmuch as the provisions under Exhibit A-3 have to be given effect to as a family arrangement, it follows that after that date, deceased Kumaraswamy Gounder did not have any right whatever either to alienate the property in favour of second respondent or to lease out the same to the deceased first respondent in the second appeal. The transactions of lease as well as sale entered into by deceased Kumaraswamy Gounder could not be binding at all on the appellants, after Exhibit A-3 dated 12th April, 1974, deceased Kumaraswamy Gounder was incompetent to deal with either the B schedule properties or the A schedule properties, excepting one item, exclusively. The circumstance that the deceased first respondent in the second appeal had got himself registered as a cultivating tenant in the record of tenancy registered would not in any manner confer rights on him as such, as the very lease in bis favour was granted by a person who had absolutely no authority whatever to deal with the property which belonged to the appellants and the possession, if any, of the deceased first respondent would have been only that of a trespasser. The first respondent and on bis death, his legal representatives are therefore bound to restore possession of the properties leased out by the deceased Kumaraswamy Gounder to the appellants. In view of these considerations, the lower appellate court was in error in having proceeded to dismiss the suit. 12. An argument was also sought to be raised by the learned counsel for the appellants based upon the amendment made to section 16 of the Hindu Marriage Act by Act 68 of 1976. When the transaction under Exhibits A-3 dated 12th April, 1974 had been upheld as a family arrangement, it is really unnecessary to consider this aspect of the matter. Likewise, it is also really not necessary to consider in detail the argument of the learned counsel for the respondents that the document under Exhibits A-3 would really be in the nature of a gift and would fall for want of acceptance and in that view, it is unnecessary to refer to some of the decisions relied upon by the learned counsel for the respondents in support thereof. 13. 13. It is seen from the judgment and decree of the trial court that it had omitted to exclude an extent of 58 cents in Survey No. 37/2 in Thimmaikutthu village, Even as per terms of Exhibit A-3 dated 12th April, 1974, the power to deal with that item was exclusively conferred upon the deceased Kumaraswamy Gounder and therefore, he could have dealt with it and no exception could have been taken by the appellants with reference to the dealing of this item by the deceased Kumaraswamy Gounder. That would mean, that item has got to be excluded from the decree that may be granted in favour of the appellants. Since Exhibit A-3 dated 12th April, 1974 has been upheld as a family arrangement, it would follow that the first appellant would be entitled to partition and separate possession of one half of the A schedule properties under that document exclusing an extent of 58 cents in Survey No. 37/2 in Thimmakutthu Village and the second appellant will be entitled to recover possession of the B schedule properties from respondents 6 to 9 in the second appeal who are the legal representatives of the deceased first respondent. Consequently, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored subject to the modification regarding the deletion of an extent of 58 cents referred to earlier, with costs through out. Appeal allowed.