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2002 DIGILAW 1309 (MAD)

Panneer and Others v. Murugaiah Konar

2002-10-28

A.RAMAMURTHI

body2002
Judgment :- The defendants in O.S.No.387/1988 and plaintiffs in O.S.No.382/1988 on the file of the District Munsif, Ramanathapuram are the appellants. 2. The case in brief for the disposal of both the appeals are as follows: The plaintiff in O.S.No.387/1988 filed a suit for declaration and permanent injunction relating to the suit property. The suit property originally belonged to one Subramanian Chettiar and the plaintiff purchased the same for a valid consideration under a registered document dated 24.6.1961. Patta was also transferred in the name of the plaintiff and he is in possession and enjoyment of the same. The defendants have no right whatsoever and they are attempting to interfere with the possession and enjoyment. 3. The first defendant filed a written statement denying the title of the plaintiff in respect of property. The plaintiff could have paid the kist to the capacity as a co-owner. The plaintiff is not in exclusive possession and enjoyment of the suit property. The plaintiff is only the eldest brother of the three and they have two brothers, namely, Muniyandi and Nagalingam. Muniyandi went to the Northern state sixteen or seventeen years back and his whereabouts are not known. D2 is the son of Muniyandi. Similarly, Nagalingam went to Tanjore and D1 is his son. Their mother Kalimuthammal also had properties in Nakachi village. They are in common enjoyment without any division. Out of the funds from joint family property only the suit property was purchased in the name of the plaintiff, he being the eldest son. The suit property was treated as a joint family property. The defendants already filed a suit for partition and the same is also pending. 4. The plaintiffs in O.S.Nos.382/1988 filed a suit for partition and separate possession of their 3/4th shares in the properties. These properties originally belonged to Kalimuthammal. The plaintiffs 1 and 2 as well as Muniyandi, father of plaintiffs 3 to 7 and D1 are her children. Kalimuthammal died twenty years back and the legal heirs commonly enjoyed the properties. In spite of repeated demands, D1 is not amenable for partition. Hence, the suit. 5. D1 filed a written statement and denied the various averments. Items 1 to 3 of the properties only belonged to Kalimuthammal. The relationship between the parties is admitted. There was already oral partition some thirty five years back even during the lifetime of the mother. In spite of repeated demands, D1 is not amenable for partition. Hence, the suit. 5. D1 filed a written statement and denied the various averments. Items 1 to 3 of the properties only belonged to Kalimuthammal. The relationship between the parties is admitted. There was already oral partition some thirty five years back even during the lifetime of the mother. No share was allotted to D1 in Item No.1 and it was allotted to plaintiffs 1 and 2 as well as Muniyandi. Item No.2 of the property was divided into four shares and there are also demarcating ridges. He denied that Item Nos.4 and 5 of the properties were purchased out of the joint family income. They were the self acquired properties of D1. Item No.5 of the property has been conveyed to the second defendant for a valid consideration and D2 had also put up a house and is living there for more than the statutory period. Similarly, second plaintiff has put up a house in a portion of Item No.1 and living separately. Muniammal wife of Muniyandi is also alive and she was not impleaded as a party. Hence, the suit is barred for mis joinder of necessary party also. 6. The second defendant filed a written statement and contended and the plaintiffs are not entitled to 3/4th shares in all the properties. Item No.5 of the properties belonged to D1 purchased under a registered document dated 18.6.1973. This property was purchased by D2 for a valid consideration under a registered document dated 4.10.1982. Ever since the date, D2 alone is in possession and enjoyment of the property. He had also put up a house and paying the tax. 7. The Trial Court framed five issues in O.S.No.382/1988 and three issues in O.S.No.387/1988, since the parties as well as the subject matter are one and the same, the evidence recorded in O.S.Nos.382/1988 was treated as evidence in the other suit. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A43 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B17 were marked. The Trial Court granted a decree in favour of the plaintiffs in O.S.No.382/1988 and dismissed the other suit in O.S.No.387/1988. Aggrieved against this, A.S.Nos.76 and 77 of 1990 were filed before the District Court, Ramanathapuram at Madurai. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B17 were marked. The Trial Court granted a decree in favour of the plaintiffs in O.S.No.382/1988 and dismissed the other suit in O.S.No.387/1988. Aggrieved against this, A.S.Nos.76 and 77 of 1990 were filed before the District Court, Ramanathapuram at Madurai. The learned Judge after hearing the parties allowed A.S.No.76/1990, set aside the judgment and decree of the Trial Court and decreed the suit. A.S.No.77/1990 was partly allowed and the judgment and decree of the Trial Court was modified. Preliminary decree was confirmed in respect of Item Nos.1 to 3 of the properties and negatived in respect of Item Nos.4 and 5. Aggrieved against this, these two second appeals are filed. 8. The parties in both the suits and the subject matter are also the same. The suit property in O.S.No.387/1988 is Item No.4 of the property in the other suit. A common judgment is pronounced in both the appeals. The parties will be hereinafter referred to as they are described in O.S.No.382/1988 to avoid the confusion. 9. At the time of admission of S.A.NO.1285/1991, the following Substantial Questions of Law were framed: i) Whether the First Appellate Judge is correct in presuming that the suit property should be deemed to be the self acquired property of the plaintiff while admittedly the plaintiff has been enjoying the same being the eldest member of the joint family while the other items were found to be joint family properties by both the courts below? ii) Whether the learned First Appellate Judge is correct in presuming that simply because the other members of the joint family, who are living outside the village have purchased properties in their name, it should be presumed that the suit property should also be treated as self acquired property of the plaintiff? iii) Whether the First Appellate Court is correct in reversing the well considered finding of the Trial Court in respect of items 4 and 5 of the suit properties, especially when it is found that in respect of items 1 to 3, the allegation of the respondent/plaintiff that there was oral partition 30 years ago was found to be false? 10. 10. At the time of admission of S.A.NO.1286/1991, the following Substantial Questions of Law were framed: i) Whether the First Appellate Court is correct in reversing the well considered finding of the trial Court in respect of items 4 and 5 of the suit properties, especially when it is found that in respect of items 1 to 3, the allegation of the first respondent/defendant that there was oral partition 30 years ago is false ? ii) Whether the learned First Appellate Judge is correct in presuming that because the first plaintiff and the father of the plaintiffs 3 to 7 have purchased the properties independently, it should be presumed that the purchase of items 4 and 5 of the suit properties by the first defendant in his name should also be treated as individual property, especially when it is admitted that the first defendant has been in enjoyment of items 1 to 3 of the suit properties for which partition decree has been granted? iii) Whether the First Appellate Judge is correct in brushing aside 9(2) Notice in Ex.A4 given in the name of the second plaintiff indicating that he is in possession of a portion of item 4 of the suit properties, which is a proof to show that the said item is also forming part of the joint family properties; whereas the same 9(2) Notice under Ex.B4 issued in the name of the defendant has been believed by the First Appellate Court? 11. Heard the learned counsel for the parties. 12. The plaintiffs in O.S.No.382/1988 filed a suit for partition and separate possession of their 3/4th shares in the suit properties consisting of item Nos.1 to 5. The first defendant in O.S.No.382/1988 filed the other suit for declaration and permanent injunction relating to Item No.4 of the property. The Trial Court granted a preliminary decree in favour of the plaintiffs and dismissed the suit filed by the first defendant. The Lower Appellate Court granted a decree in the suit filed by D1 and granted a decree in favour of the plaintiffs in O.S.No.382/1988 only in respect of Item Nos.1 to 3 and rejected the relief relating to Item Nos.4 and 5. Now, the first defendant in O.S.No.382/1988 and who is the plaintiff in O.S.No.387/1988 has preferred these two second appeals. 13. Now, the first defendant in O.S.No.382/1988 and who is the plaintiff in O.S.No.387/1988 has preferred these two second appeals. 13. The learned counsel for the appellants contended that the Lower Appellate Court erred in holding that Item Nos.4 and 5 of the properties are self acquired properties of D1. The family was possessed of Item Nos.1 to 3 of the properties and as such there is a possibility to acquire other properties. The Appellate Court ought to have dismissed the suit filed by D1 on the ground that all the properties are joint family properties and granted a preliminary decree in favour of the plaintiffs in respect of entire Item Nos.1 to 5. The Appellate Court also erred in holding that simply because the other joint family members are living outside the village, it should be presumed that the suit properties also to be treated as self acquired properties. The Appellate Court failed to note that there is absolutely no evidence to show that D1 was having independent source of income. The first defendant has come forward with the patent false story in respect of Item Nos.1 to 3 that the same has been divided and enjoyed in partition thirty years ago. The Appellate Court failed to note that in a joint family, even if one of the member is having an independent source of income inasmuch as the other joint family members enjoying the other joint family properties purchased by him by which the properties acquired should form part of joint family property. The Appellate Court also erred in holding that Item Nos.4 and 5 were purchased by D1 during the lifetime of the mother and therefore it should be presumed to be his individual property. The Appellate Court also failed to note that D1 was living in the suit property managing the same being the eldest member of the family and he was not having an independent source of income. 14. There is no dispute between the parties that Item Nos.1 to 3 are joint family properties. It is also not in dispute that Kalimuthammal had four sons and the whereabouts of two sons are not known. Although D1 claimed that there was already oral partition some thirty years ago during the lifetime of the mother, it was not substantiated. 14. There is no dispute between the parties that Item Nos.1 to 3 are joint family properties. It is also not in dispute that Kalimuthammal had four sons and the whereabouts of two sons are not known. Although D1 claimed that there was already oral partition some thirty years ago during the lifetime of the mother, it was not substantiated. Only under such circumstance, the Appellate Court came to the conclusion that Item Nos.1 to 3 are admittedly joint family properties and when oral partition pleaded by D1 was not established, the plaintiffs are entitled to partition and separate possession by 3/4th share in Item Nos.1 to 3. Now, there is no dispute with reference to the decree granted to the plaintiffs in respect of Item Nos.1 to 3. 15. Item Nos.4 and 5 of the properties are claimed by D1 as his exclusive properties but the plaintiffs would contend that these two items were also purchased out of income from the joint family properties. In fact, D.W.1 himself admitted in the course of evidence that patta was not transferred in the individual names based upon the oral partition. Item No.2 of the property was also mortgaged by the mother as early as 1975. D1 had purchased Item No.4 of the property under Ex.B1 dated 24.6.1961 and Item No.5 of the property under Ex.B14. Now, these two items of the properties are exclusively claimed by D1. Even assuming that the members of the family are living jointly, there cannot be any presumption under law that the family should possess the joint family properties. Hence the burden of proof would be on the plaintiff to establish positively that Item Nos.4 and 5 were purchased in the name of D1 out of the income from Item Nos.1 to 3 of the properties. It is proved by evidence that even during the lifetime of the mother, D1 had purchased Item Nos.4 and 5. There is absolutely no record to show that the mother had treated Item Nos.4 and 5 as joint family property. When the mother is alive at the time of purchase of Item Nos.4 and 5 of the properties, if they were purchased out of the income from the property, normally they would purchase the same in the name of the mother and there was no necessity to purchase the same in the name of D1. When the mother is alive at the time of purchase of Item Nos.4 and 5 of the properties, if they were purchased out of the income from the property, normally they would purchase the same in the name of the mother and there was no necessity to purchase the same in the name of D1. Only after demise of the mother, D1 could have been put into possession of the properties. 16. The second defendant had purchased item No.5 of the property from D1 under Ex.B15 in the year 1982. He had also put up a house in the property and is living there for a very long time. None of the parties have questioned the construction put up by D2 in respect of Item No.5 of the property. D.W.3 was corroborated by the evidence of D.Ws.1 and 2. It is clearly proved that D.W.1 had purchased Item Nos.4 and 5 of the properties only out of his income and not from the joint family property. D.W.1 also admitted in the course of evidence that the brothers after the marriage have settled in the respective houses of their wives. D.W.2 also admitted the financial position of D.W.1 In fact, D1 also had put up a new house. Similarly, the first plaintiff had also purchased the properties from third parties in 1963. Taking into consideration of the fact that most of the brothers have acquired separate properties and they have put up separate houses, the Appellate Court came to the conclusion that Item Nos.4 and 5 are self acquired properties of D.W.1 and as such they are not available for partition to the plaintiffs. D.W.1 had also mortgaged Item No.4 of the property under Ex.B12 in the year 1966 and subsequently redeemed the same. Item No.4 of the property was also damaged due to floods and D.W.2 had received the compensation amount. These documents clearly established that Item Nos.4 and 5 of the property were in possession and enjoyment of D.W.1. Specifically Item No.5 alone has been conveyed by D.W.1 in favour of D.W.2. The findings given by the Lower Appellate Court is based on legal evidence and there is no question of law, much less, substantial question of law calling for interference. 17. For the reasons stated above, both the second appeals fail and accordingly dismissed. No costs.