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2000 DIGILAW 1298 (MAD)

Sellammal v. Natarajan & Others

2000-12-15

V.KANAGARAJ

body2000
Judgment : 1. This appeal suit is directed against the judgment and decree dated 17.3.1987 made in O.S.No.177 of 1986 by the Court of Subordinate Judge, Namakkal, thereby decreeing the suit for partition and separate possession as prayed for. 2. To trace the history of the case, the respondents in this appeal have filed the suit before the trial court praying for partition and separate possession of the suit properties, which are landed properties falling under many survey numbers and patta numbers 109, 110 and 330 of Vasanthapuram Village of Namakkal Taluk on averments such as that the plaintiffs 1 and 2 are the sons of the 1st defendant and the 3rd plaintiff is the mother of the defendants 1 and 2; that the suit properties are the common properties belonging to the joint Hindu family consisting of the plaintiffs and the defendants 1 and 2 they being the members of the joint Hindu family; that the father of the defendants 1 and 2, who is the husband of the 2nd plaintiff named Petha Boyan died 15 years back and on the date of death of Petha Boyan, there was a notional partition; that the plaintiffs and the defendants 1 and 2 are in common enjoyment of the suit properties; that as per the Hindu Succession Act in the share of the 1st defendant, the plaintiffs 1 and 2 have 1/3rd share each that is 4/27th shares in the whole of the suit properties in toto; that the plaintiffs 1 and 2 are entitled to 4/27th, 1/9th and 11/27th shares; that it is learnt that the defendants 1 and 2 have entered into some sore to agreement to sell the suit properties in favour of the defendants 3 to 6; that the defendants cannot sell away the 11/27th shares which belong to the plaintiffs 1 and 2 and hence, the plaintiffs demanded and requested the defendants 1 and 2 on 30.5.1986 for partition of the suit properties and allot their shares, but they refused to do so; that it is reliably understood that the defendants 1 and 2 have sold away some of the properties of the suit schedule, which they are not entitled to and hence, the suit for partition and separate possession of the plaintiffs 11/27th shares and put them in separate possession of such divided and allotted shares to the plaintiffs. 3. 3. The defendants 1, 2 and 4 to 6 remained ex parte and an ex parte decree had been passed against them. 4. Inthe written statement filed by the 3rd defendant, besides generally denying the allegations of the plaint, she would further submit that she purchased the properties bearing S.No.162/2 to the extent of 3.14 acres comprised in patta No.330 on 16.5.1986 under a registered sale deed for value from the defendants 1 and 2; that it is a self acquired property of the defendants 1 and 2 and they have every right and interest and title to sell the property in favour of this defendant and it is false to allege that this property is a joint family property and as such the plaintiffs have no right to claim any interest in the property purchased by this defendant from the defendants 1 and 2; that the recitals in the sale deed dated 16.5.1986 clearly speak to the effect that this defendant is the absolute owner of the said property having title, possession and enjoyment of the same; that the patta and all connected revenue records also stand in the name of this defendant; that the assessment is made in her name and the plaintiffs have no locus standi to file the suit for partition much less claiming any right in this property purchased by this defendant; that the suit filed by the plaintiffs is vexatious and the plaintiffs have no right to seek partition against this defendant regarding the above mentioned property; that the claim of the plaintiffs is not supported by enough materials; that notice was also issued by the plaintiffs and a suitable reply dated 2.9.1986 had been given that it was a self acquired property, which this defendant had purchased and therefore it cannot be the subject matter of partition. 5. 5. In the additional written statement filed by the 3rd defendant, it would further be contended that the plaintiffs have not been in possession of the suit property at any point of time and even in the plaint they have not stated that they have been in possession and enjoyment of the same and therefore since being out of possession, instead of paying the court fee under Sec.37(1) of Tamil Nadu Court Fees and Suits Valuation Act, they have paid the court-fee under Sec.37(2) of the said Act and hence court-fee paid on the plaint is improper and incorrect; that there is no merit in the suit nor the plaintiffs are entitled to any relief and as such the 3rd defendant would pray to dismiss the suit with costs. 6. Thetrial court based on the above pleadings by parties would frame 3 issues and one additional issue for determination of the disputes involved in the suit namely, (1) Whether the plaintiffs are entitled to get a partition of the properties falling under S.No.162/2 to the extent of 3.14 acres also. (2) Whether the property described in S.No.162/2 to the extent of 3.14 acres is a joint family property of the Hindu joint family consisting of the plaintiffs and the defendants 1 and 2. (3) What reliefs the plaintiffs are entitled to. Additional issue: Whether it is true to allege that during the relevant period, the plaintiffs have been in joint possession and enjoyment of the suit properties along with the defendants 1 and 2 and whether the proper court fee has been paid by the plaintiffs. 7. Based on the above issues framed, the lower court would conduct a full-fledged trial, in which on the part of plaintiffs, 2 witnesses would be examined for oral evidence as P.Ws.1 and 2 among whom P.W.1 is the 1st plaintiff and on the part of the defendants the 3rd defendant would examine herself as D.W.1. For documentary evidence 3 documents would be marked on either side as Exs.A-1 to A-3 and Exs.B-1 to B-3. For documentary evidence 3 documents would be marked on either side as Exs.A-1 to A-3 and Exs.B-1 to B-3. So far as the documents marked on the part of the plaintiffs are concerned, Ex.A-1 is the patta No.330 granted in favour of Sriranga Boyan, Ex.A-2 is the copy of the sale deed dated 29.1.1976 by Veerasamy and others in favour of Marappa Gounder for a sale consideration of Rs.2,000 and Ex.A-3 is the another sale deed dated 31.12.1981 by Veerasamy and others in favour of Boopathy for a sale consideration of Rs.1,000. So far the documents marked on the part of the defendants are concerned, Ex.B-1 is the sale deed dated 16.5.1986 for a sale consideration of Rs.35,000 executed by Veerasamy and another in favour of Sellammal, Ex.B-2 is the another sale deed dated 29.8.1974 for a sale consideration of Rs.6,000 executed in favour of Veerasamy and another by Sriranga Boyan and Ex.B-3 is the copy of the Chitta dated 25.6.1986 given in favour of Sellammal. With these evidence placed on record, the court below having assessed the merit of the case in the light of the evidence placed, would not only arrive at a conclusion to hold that the suit properties in S.No.162/2 to the extent of 3.14 acres is a joint family property of the Hindu joint family consisting of the plaintiffs and the defendants 1 and 2 and therefore, the plaintiffs are entitled for their share even in this item of the suit properties and would further hold that the plaintiffs are in common enjoyment of the suit properties especially the 6th item falling under S.No.162/2 to the extent of 3.14 acres also along with the defendants 1 and 2 and hence the court fee paid under Sec.37(2) of the said Act is proper and thus has ultimately granted the relief of partition and separate possession as prayed for, passing a preliminary decree to divide the suit properties by metes and bounds into 27 shares allotting 11 of such divided shares in favour of the plaintiffs. Aggrieved, the 3rd defendant has preferred the above appeal suit on certain grounds as brought forth in the memorandum of grounds of appeal. 8. Aggrieved, the 3rd defendant has preferred the above appeal suit on certain grounds as brought forth in the memorandum of grounds of appeal. 8. During arguments, the learned counsel appearing on behalf of the appellant submits that the appellant purchased the suit property falling under item No.6 of the suit properties under Ex.B-1 dated 16.5.1986 for Rs.35,000 in S.No.162/2 from the father of the respondent 1 and 2 who is the 1st defendant and uncle of the respondents 1 and 2 who is the 2nd defendant; that the respondents 1 and 2 are the grand sons and the 3rd respondent is the grand mother of the plaintiffs 1 and 2; that the appellant is a bona fide purchaser for value under Ex.B-1; that according to the recitals, the vendors of the appellant have described the suit property as a self acquired property; that Ex.B-1 sale deed in favour of the appellant sets aside the oral evidence since the recitals of the sale deed cannot be done away with by the oral evidence, which is irrelevant and worthless; that there is no ambiguity involved regarding the recitals of the sale deed; that the purchaser did not have any doubt that it was a self acquired property of the vendors; that in addition to Ex.B-1 the vendors have also given the title deed under Ex.B-2 i.e., the original deed in their favour; that in Ex.B-2 also the names of the vendors are found and this document is dated 29.8.1974; that though Ex.B-1 is standing in the name of the appellant still considering the oral evidence of P.W.2 along thus overlooking the recitals of the document by mere oral evidence adduced on the part of the witnesses on the plaintiffs side, the trial court arrived at the erroneous conclusion to decree the suit. 9. 9. Continuing to argue, the learned counsel would further point out that the appellant is not concerned with the other items of the suit properties; that it is not a finding based on evidence and unless there are overwhelming documentary evidence to brand this property purchased by the appellant also as family property, the conclusions arrived at on the part of the lower Court is illogical and unacceptable that as against the documentary evidence, the oral evidence adduced on the part of the plaintiffs before the lower court is inadequate, improper and inconsistent and on such arguments the learned counsel would pray to allow the appeal setting aside the judgment and decree passed by the Court of Subordinate, Namakkal. 10. Inreply, the learned counsel for the respondents would submit that the existence of the joint family has not been disputed; that the plaintiffs are the part of the joint family is also not in dispute; that the defendants 1 and 2 have also obtained loan of Rs.2,000 from P.W.2; that the disputed item No.6 of the suit property had been purchased on 29.8.1974 under a registered sale deed; that on the same day the loan had been obtained from Marappa Gounder; that the date of sale of this property belonging to joint family was 29.1.1976; that this has been sold to Marappa Gounder; that they bought it in their own names whether they had sufficient income to purchase this property is not known; that the patta stood in the name of Sriranga Boyan and therefore it has been concluded that these properties have been purchased only from out of the income of the joint family properties and therefore, it is safe to conclude that 1976 sale deed is in favour of the joint family and would pray to dismiss the above appeal suit. 11. 11. Inconsideration of the facts and circumstances encircling the whole case and having regard to the materials placed on record and upon hearing the learned counsel what comes to be known is that this a suit for partition and separate possession of 11/27th shares of the plaintiffs in the suit properties wherein the suit properties are in 6 items; that it is the 6th item falling under S.No.162/2 in an extent of 3.14 acres, which is in dispute and the same has been sold in favour of the 3rd defendant under Ex.B-1, dated 16.5.1986 by Veerasamy and Sanjeevi, sons of Petha Boyan and very strong defence would be put forth on the part of the 3rd defendant to the suit, who purchased this property under Ex.B-1 to the effect that being the self acquired property of the vendors the same has been purchased by her under Ex.B-1 registered sale deed dated 29.8.1972 from Sriranga Boyan son of Sanjeevi Boyan for a valid consideration of Rs.6,000 and in the said sale deed there is no iota of evidence or proof that the properties covered under the sale deed had any characteristic that it was belonging to the joint family and hence the 3rd defendant would come forward to purchase the suit properties in an outright sale from the vendors who were the purchasers of the same under Ex.B-2 dated 29.8.1972. On the contrary this property has also been shown in the list of suit items in the description of property and in fact the defendants 1 and 2, who are the vendors of the 3rd defendant under Ex.B-1 sale deed, are the sons of the Petha Boyan and the plaintiffs 1 and 2 are the sons of the first defendant. The 3rd defendant is the grandmother of the plaintiffs and mother of defendants 1 and 2. Regarding 6th item of the suit property which is also belonging to the joint family, the plaintiffs would contend that the same has been sold by the defendants 1 and 2 in favour of the 3rd defendant, which is not binding on them and hence they would seek for partition and separate possession of the suit properties dividing the same by metes and bounds into 27 shares and to allot them 11 such divided shares. 12. 12. In consummation of the case put up by the plaintiffs they have examined 2 witnesses of whom P.W.1 is the 1st plaintiff himself and P.W.2 is one Marappa Gounder. In his deposition P.W.1 would depose that item 6 of the suit properties is not a self acquired property of his father, but disposing of the family properties this item had been purchased in the name of his father the 1st defendant and his junior paternal uncle the 2nd defendant to the suit and hence, they must be considered as the joint family property. On the part of the 3rd defendant her case is that the 6th item of the suit properties since on enquiry came to be established that had been purchased independently by the defendants 1 and 2 under Ex.B-2 for value, she ventured to purchase the same from the vendors. However, it could be seen that this property forming item 6 of the suit schedule had never been with the joint family and only from the 3rd party both the defendants 1 and 2 have purchased under Ex.B-2 sale deed for valid consideration of Rs.6,000. 13. In these circumstances, the only question that is to be determined is whether the lower court is right in treating the item 6 of the suit properties falling under S.No.162/2 and Patta No.330 in an extent of 3.14 acres to have been purchased from out of the joint family funds and not from their independent source. 14. It is a suit for partition and separate possession of the 11/27th shares of the plaintiffs 1 and 2 and there are 6 items of the suit properties mentioned in the suit schedule of properties, out of which so far as the first five items are concerned regarding the status of the same as the joint family property there is no dispute nor does any one from out of the defendants come forward to contest the same. It is only Item No.6 falling under S.No.162/2 and Patta No.330 in an extent of 3.14 acres that is in dispute which is hotly contested by the 3rd defendant to the suit, who is the purchaser of the said item of the suit properties for valid consideration under Ex.B-1. It is only Item No.6 falling under S.No.162/2 and Patta No.330 in an extent of 3.14 acres that is in dispute which is hotly contested by the 3rd defendant to the suit, who is the purchaser of the said item of the suit properties for valid consideration under Ex.B-1. Her contention is that this item should not have formed part of the suit schedule of properties since it was not at all belonging to the joint family, but purchased by the defendants 1 and 2 from out of their independent source under Ex.B-2 and that there is no iota of evidence to prove that they utilised the joint family funds and purchased this property in their names. The lower court on suppositions and surmises and not based on any proper evidence has decided the matter in favour of the plaintiffs as though the plaintiffs had a genuine case to offer and established the same. 15. It could be seen that the defendants 1 and 2 are the vendors of the 3rd defendant so far as this item of the suit properties is concerned. The plaintiffs 1 and 2 are none other than the sons of the first defendant, one of the vendors in favour of the 3rd defendant. The father and the paternal uncle sold the properties in favour of the 3rd defendant and their sons question, the validity of such sale in a short span of one year as though the plaintiffs, especially the first plaintiff, did not know anything about the transaction that took place. It was an open transaction and no secrecy seems to have been involved in so far as the coming into existence of Ex.B-1 sale deed. Moreover, under Ex.B-1, the 3rd defendant has also been put in possession of the suit property. At least so far as the 2nd plaintiff is concerned, it could be said that he was a minor at the time of suit, but there is absolutely no reason on the part of the 1st plaintiff and the 3rd plaintiff to take any excuse for pleading innocence regarding the said transaction that took place in between the defendants 1 and 2 vendors and the 3rd defendant purchaser. There is no doubt of the fidelity of the transaction for proper value and there is also no chance for the purchaser to cast her imagination whether it would have been purchased from out of joint family funds or not since under Ex.B-2 sale deed the defendants 1 and 2 have purchased the same property from a 3rd party mentioning that they are purchasing the same from out of their personal funds. It was an outright purchase and there is absolutely no clue to the effect that it would have had any connection with the joint family. Therefore, on the part of the 3rd defendant for proper value she had purchased the 6th item of the suit properties under Ex.B-1. 16. It could be seen that after one year the sons of the vendors especially the sons of the 1st defendant and the mother of the both the defendants 1 and 2 have come forward to testify the validity of such a sale having been effected in favour of the 3rd defendant as though they were totally ignorant of the fact of all the dealing which have taken place a year back. Secondly, it could be further seen that the defendants 1 and 2 have not contested the suit and it is only the 3rd defendant who is the contesting party and all other defendants 1, 2, 4, 5 and 6 have been set ex parte since they did not care to contest the suit at all. It could be safely concluded at this stage itself that in the name of joint family some of the members of the one and the same family have come forward to institute the suit giving a joint family colour to item 6 of the suit properties also. 17. It could be further seen that nobody bothers about items 1 to 5 of the suit properties. Therefore, at the outset, there is every reason to think that items 1 to 5 of the suit properties alone are the joint family properties. 17. It could be further seen that nobody bothers about items 1 to 5 of the suit properties. Therefore, at the outset, there is every reason to think that items 1 to 5 of the suit properties alone are the joint family properties. The defendants 1, 2, 4, 5 and 6 have been formally made parties and the arrow of the plaintiffs is in a calculated manner aimed at item 6 of the suit properties, which has been purchased from the father and his younger brother of the plaintiffs 1 and 2 and the sons of the 3rd plaintiff to the suit by the 3rd defendants, who is an outsider for the family. In this background, the big question that is to be decided is as pleaded on the part of the plaintiffs whether this item of the suit properties is also a joint family property as it is attributed for items 1 to 5 which go uncontested by any of the members of the family or from outside. The trial court found that there had been no partition among the plaintiffs 1 and 2 and defendants 1 and 2 and that the suit properties in items 1 to 5 have not been partitioned and therefore, the lower court presumes that item 6 of the suit properties should have also been purchased by the defendants 1 and 2 in their names from out of the joint family funds. In justification of this conclusion arrived at by the lower court, it would show that Exs.A-1 and A-2 would reveal the existence of the joint family and no partition had been effected among the family members and therefore, arrived at the conclusion that the item 6 of the suit properties should have also been purchased by the defendants 1 and 2 under Ex.B-2 sale deed from out of the joint family funds in their names. 18. If the properties of the joint family having the characteristics of having been inherited from forefathers and if the properties are sold by some of the members of the joint family, the arguments of the lower court would be acceptable but, not where in a suit for partition 5 items of the suit properties are having such joint family characteristics and one property an outright purchase by some of the members of the joint family in their independent names from a 3rd party. Here, excepting for the fact that the purchasers i.e., the defendants 1 and 2 are belonging to the joint family nothing is seen in common so far as the purchase of the 6th item of the suit property by the defendants 1 and 2 from a 3rd party for value is concerned. Ex.B-2 stands as a strong evidence in favour of the defendants 1 and 2 having purchased the item No.6 of the suit schedule properties from out of their independent source and therefore in the circumstances of the case, it has to be treated that preliminarily on the part of the defendants 1 to 3 especially through the contesting defendant 3 it comes to be established through Exs.B-1 and B-2 that this 6th item of the suit properties has been purchased by the defendants 1 and 2 from their independent source from a 3rd party without any joint family colour being given to the same. 19. In such a situation the onus of proof is heavily on the plaintiffs to prove the existence of the joint family, the availability of the joint family properties and yield from out of said properties and the source money for purchase having been acquired from the funds from out of the joint family nucleus. Even prima facie the onus of proof is heavily on the plaintiffs since they have come forward to institute the suit claiming the properties to be the joint family properties and seeking for partition of the same. Absolutely, no evidence comesforth in proof of these vital aspects, without the proof of which no property independently purchased by the members of the joint family in their names could be branded to have been purchased from out of the joint family funds and the lower court in deciding that the item 6 of the suit property is also a joint family property has committed serious error, which is unacceptable in law. Absolutely, no evidence is put forth on the part of the plaintiffs in proof of the purchase money coming from the joint family funds and utilised for the purchase of the 6th item of the suit properties in the names of the defendants 1 and 2 and hence, the story as put up under the garb of joint family by some members of the joint family cannot be accepted since an innocent purchaser for value who did not at all have any clue that such a contingency might arise since it was an outright purchase by the defendants 1 and 2 from 3rd party, cannot be punished. As argued on the part of the learned counsel for the appellant it is a case wherein as against a strong proof of independent purchase being established under Exs.B-1 and B-2, the vague oral evidence adduced on the part of the 1st plaintiff and P.W.2 cannot give way for assumptions and presumptions as it has been done on the part of the lower court in giving a joint family colour to the 6th item of the suit properties also. Therefore, though uncontested on the part of any of the defendants excepting the third defendant, to the prayer of the plaintiffs regarding their claim that they are entitled to 11/27th shares from out of the suit properties, they became entitled to for partition and separate possession and for a preliminary decree only in items No.1 to 5 of the suit properties and the plaintiffs are not entitled for any partition in so far as item 6 of the suit properties is concerned, which is contested to have been purchased from out of the independent source of money by the defendants 1 and 2 from a 3rd party under Ex.B-2 and the purchase of the same by the 3rd defendant is perfectly in accordance with the norms of purchase and no joint family colour could be attributed for such a purchase and hence, the plaintiffs cannot get any relief so far as the item 6 of the suit properties falling under S.No.162/2 and Patta No.330 in an extent of 3.14 acres is concerned. 20. 20. In short, it is the plaintiffs who have filed the suit alleging that all the suit properties are belonging to the joint family and they have been purchased for the benefit of the joint family from out of the joint family funds. However, item No.6 is not having the characteristics of times No.1 to 5, regarding which there is no controversy that they are the joint family properties. But, item No.6 is different in the sense that it has been purchased from third parties in the names of the first and second defendants and the same has been sold at a later stage by the first and second defendants in favour of the third defendant. Therefore, the same standard of proof that could be fixed for items No.1 to 5 cannot be attributed for item No.6 also since basically, item No.6 is having the characteristics of self-acquisition by the first and second defendants, and, therefore, the proposition held in a case of a sale of a joint family property by some of the members of the family, cannot be attributed to item No.6 and it is in fact, the other way round. 21. Since preliminarily it comes to be established regarding these items that they are the joint family properties and unless the defendant proves to the effect that any of them is independently belonging to him or her, the presumption does not get dislodged. It is contrary so far as the case of item No.6 of the suit properties is concerned. So far as this item is concerned, it is preliminarily proved to be the property independently belonging to first and second defendants, and therefore, unless the plaintiffs plead, prove and establish that this item No.6 has been purchased by the first and second defendants from out of the joint family fund and for the benefit of the joint family in their names, the same cannot be treated as a joint family property. Absolutely no evidence comes forth on the part of the plaintiff to this effect, and therefore, it is always safe to conclude that item No.6 is only a property that was independently belonging to the first and second defendants having been purchased from third parties under Ex.B-2 and in their independent possession and enjoyment all these days, and ultimately conveyed the same in favour of the third party under Ex.B-1 and hence, it is quite a proper and valid sale done in favour of the third party. Just for the simple reason that this property has also been included in the suit schedule of properties and partition is sought for, by the respondents to suit their convenience there is no need to amalgamate the same with the other family properties unless it is established in law as aforementioned. 22. In these circumstances, the only conclusion that could be arrived at is that item No.6 cannot be treated as joint family property of the Hindu joint family consisting of the plaintiffs and defendants No.1 and 2 as it is alleged on the part of the plaintiffs. But, it was independently belonging to the first and second defendants and the same had been validly conveyed in favour of the third defendant for consideration under Ex.B-1 and the same is binding on all the plaintiffs and defendants No.1 and 2. 23. In result, the above appeal preferred by the 3rd defendant is allowed with costs throughout setting aside the judgment and decree dated 17.3.1987 made in O.S.No.177 of 1986 by the Court of Subordinate Judge, Namakkal, so far as it is concerned with item 6 of the suit properties falling under S.No.162/2 and Patta No.330 in an extent of 3.14 acres. Regarding the other items No.1 to 5 of the suit properties, the judgment and decree of the lower court is confirmed.