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2006 DIGILAW 2973 (MAD)

Marimuthu Goundar v. Perama Gounder & Others

2006-11-04

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (This appeal was filed under Section 96 of C.P.C. against the decree and Judgment dated 2.3.1992 and made in O.S.No.638 of 1985 on the file of Sub Court, Sankari.) This appeal has been preferred against the decree and Judgment in O.S.No.638 of 1985 on the file of the Sub Court, Sankari. The suit is for partition. 2. The plaint averments in brief are as follows: Nalla Gounder, who was residing at Malakkattan Street, Kurukkupatty, Iruppali Village, had three sons and two daughters. The first plaintiff is one of the sons of late Nalla Gounder. The other two sons are Kalianna Gounder and late Chinna Gounder. Chinna Gounder pre deceased Nalla Gounder. Nalla Goundar also died six months prior to the filing of the suit. Nalla Gounder had left a grand daughter and daughter-in-law who are plaintiffs 2 and 3. They are entitled to 1/5th share. The first plaintiff is entitled to 3/10th share. The plaintiffs 2 and 3 being the grand daughter and daughter-in-law of Nalla Gounder, are entitled to 3/10th share of late Chinna Gounder. The defendants 2 and 3 did not want any share in the father's property since they were satisfied with the dowry and Shridhana given by late Nalla Gounder. Nalla Gounder died intestate. The 1st defendant is entitled to 3/10th share and defendants 2 and 3 together entitled to 1/10th share. There was a joint family property. Nalla Goundar was entitled to 1/4th share. His 1/4th share is taken away by five sharers who are the heirs of Chinna Gounder who predeceased Nalla Gounder. So, the plaintiffs together are entitled to 2/3rd and the first defendant is entitled to 1/3rd share. The plaintiffs issued suit notice dated 22.6.1984 calling upon them to divide the properties into three separated shares and put the plaintiffs in separate possession and enjoyment of 2/3rd share. Though the defendants received the said notice, they have not chosen to reply. Hence the suit. 3. The first defendant in his written statement would contend that Nalla Gounder had three sons and one of them had predeceased her father. Out of the three sons, the first defendant is the eldest. The other son Kaliappan alias Chinna Gounder died about 20 years ago. Kaliappan alias Chinna Gounder had predeceased his father. Nalla Gounder is also no more. The first defendant in his written statement would contend that Nalla Gounder had three sons and one of them had predeceased her father. Out of the three sons, the first defendant is the eldest. The other son Kaliappan alias Chinna Gounder died about 20 years ago. Kaliappan alias Chinna Gounder had predeceased his father. Nalla Gounder is also no more. The widow and daughter of Kaliappan @ Chinna Gounder are not living with plaintiffs 1 to 3. Chinna @ Kaliappa Gounder's wife third plaintiff is alive and living with her brother at Iruppuli Village. Her name is Amasai Ammal and not Ammani Ammal as shown in the plaint. Her daughter Perumayee is also married and she is also residing with her mother but not with the first plaintiff. The plaintiffs 2 and 3 are not entitled to either 1/5th share of Nalla Gounder or 3/10 share of Chinna Gounder. The first plaintiff is also not entitled to 3/10th share. Nalla Gounder had executed a settlement deed dated 8.6.1962 in favour of plaintiffs 2 and 3. The shares for the parties set out in the plaint are not correct. The properties are joint family properties. It is not correct to say that 1/4th share of Nalla Gounder is taken away by five shares who are the heirs of Chinna Gounder who pre deceased Nalla Gounder. The plaintiffs cannot claim 2/3rd share in the plaint schedule properties. This defendant had received the suit notice issued by the plaintiffs and he had sent a reply on 15.7.1985. This defendant had agreed for partition. Chinna alias Kaliappa Gounder died leaving three heirs viz., his daughter, widow and his mother Papayee. Each of them will be entitled to 1/3rd share. Kaliappa Gounder at the time of his death was entitled to 1/4th share of plaint schedule property. Plaintiffs 2 and 3 who are the daughter and widow of Kaliappa Gounder had released all their rights in the joint family property for valuable consideration under registered deed No.16/1962 dated 8.6.1962 in favour of Nalla Gounder. Nalla Gounder and his wife Papayee settled about two acres of land in favour of plaintiffs 2 and 3. The arrangements appeared to be in view of the relinquishment of all their rights in the joint family property to the father of the first plaintiff. Nalla Gounder and his wife Papayee settled about two acres of land in favour of plaintiffs 2 and 3. The arrangements appeared to be in view of the relinquishment of all their rights in the joint family property to the father of the first plaintiff. Such being the case the second and third plaintiffs have no right to claim any share in the suit property. Nalla Gounder had three sons. The first defendant was the eldest. The second son was one Chinna Gounder and Kaliappa Gounder who predeceased Nalla Gounder and his wife Papayee. The first plaintiff is the youngest son of Nalla Gounder. Nalla Gounder and each of his three sons got 1/4th share in the plaint schedule properties. Chinnu alisas Kaliappa Gounder had left his widow Ammasi Ammal, the daughter Perumayee and his mother Papayee. Each of them inherited 1/3rd share of the property left by Chinnu Gounder alias Kaliappa Gounder. Ammasi Ammal, Perumayee and Papayee would have got 1/12th share. Perumayee and Ammasi Ammal had executed a deed on 8.6.1962 releasing all their rights in the family property of Nalla Gounder in favour of Nalla Gounder. The 1/12th share inherited by Papayee would have devolved on six of her heirs, viz., her two sons i.e. the first plaintiff and the first defendant husband Nalla Gounder, Perumayee, her daughter of predeceased son Chinnu alias Kaliappa Gounder and two daughters of Papayee i.e., the second and third defendants. Each of them are entitled to 1/6th share in the share of Papayee. After the death of Papayee, Nalla Gounder had ¼ + 1/72 = 19/72nd share of the joint family. Nalla Gounder died about one year and five months ago prior to the filing of the suit. On his death, his share had devolved on his two sons, viz., the first plaintiff and the first defendant, two daughters viz., the second and third defendants and the family of deceased Chinnu alias Kaliappa Gounder. Each of the heirs will get 1/5th share in the properties left by Nalla Gounder. In the mean while, defendants 2 and 3 have received Rs.1000/- from Nalla Gounder, the first plaintiff and the first defendant and released all their rights in the joint family property on 19.2.1984 after executing a deed. Consequently in the joint family property of Nalla Gounder, the first plaintiff and the first defendant will each get 1/2 share. In the mean while, defendants 2 and 3 have received Rs.1000/- from Nalla Gounder, the first plaintiff and the first defendant and released all their rights in the joint family property on 19.2.1984 after executing a deed. Consequently in the joint family property of Nalla Gounder, the first plaintiff and the first defendant will each get 1/2 share. In this case the first plaintiff had deliberately omitted to include certain survey numbers in the schedule of property although the lands covered by those survey numbers comprised in the joint family property. These lands were purchased from out of the joint family property to the plaint schedule. These lands also belong to the joint family and the first defendant is entitled to 1/2 share in it. This defendant has no objection to partition but the division of share must be effected as indicated above. The plaintiffs have acquired property from out of the wealth acquired from the joint family property in their own name. The plaintiffs have no separate funds with which they would acquire property and joint family nucleus was sufficient to acquire properties although it was purchased in the plaintiffs' name. This properties were also treated as a joint family properties. The said properties have also been included in the schedule of properties to the plaint for partition. The suit itself is bad for partial partition. This defendant has no objection to partition but the division of share should be in the ratio given above. Hence the suit is liable to be dismissed with costs. 4. In the additional written statement, the first defendant would contend that the properties belong to the joint family are omitted to be included in the plaint schedule property. Perumayee and Ammasi Ammal, the 2nd and 3rd plaintiffs have executed a deed on 8.6.1962 whereby they have released all their rights in the property in favour of Nalla Gounder. The first plaintiff did not have funds of his own to purchase any property in his name. The properties purchased by the first plaintiff are also treated as joint family properties. 5. Pending trial, second defendant died. Third defendant remained exparte. 6. The first plaintiff did not have funds of his own to purchase any property in his name. The properties purchased by the first plaintiff are also treated as joint family properties. 5. Pending trial, second defendant died. Third defendant remained exparte. 6. On the above pleadings, learned trial Judge, had framed two issues and three additional issues and after going through the basis of oral and documentary evidence let in by both sides, has held that the plaintiffs are entitled to a preliminary decree for partition as prayed for. Aggrieved by the findings of the learned trial Judge, the first defendant has preferred this appeal. 7. Now the points for determination in this appeal are a) Whether the first plaintiff is entitled to 2/3rd share in the plaint schedule properties or ½ share as contended by the appellant. b) To what relief, the parties are entitled in respect of properties alleged to have been purchased in the name of the first plaintiff under Exs A11, A12, A15, A16 and A17? 8. Point No.1: The admitted case of the parties is that one Nalla Gounder had three sons by name Marimuthu Gounder (D1), Chinnu Gounder alias Kaliappa Gounder (no more) and Perama Gounder (First plaintiff) Chinnu Gounder alias Kaliappa Gounder's legal heirs are 3rd plaintiff(wife) and second plaintiff(daughter). Second defendant and third defendant are the daughters of Nalla Gounder. Pending suit, second defendant also died. 9. The learned counsel appearing for the appellant would contend that Nalla Gounder along with his wife Papayee Ammal had executed a settlement deed ExB7 dated 8.6.1962 settling his share in the plaint schedule properties in favour of his grand daughter second plaintiff and his daughter-in-law, third plaintiff. But the settle in turn under Ex B6 had executed a release deed in respect of the properties settled in their favour under Ex B7, in favour of Nalla Gounder. The learned counsel appearing for the appellant would contend that after the death of Nalla Gounder, his 1/3rd share equally devolved on the first plaintiff and the first defendant alone and hence the first plaintiff and the first defendant alone are each entitled to 1/2 share in the plaint schedule properties. The learned counsel appearing for the appellant would contend that after the death of Nalla Gounder, his 1/3rd share equally devolved on the first plaintiff and the first defendant alone and hence the first plaintiff and the first defendant alone are each entitled to 1/2 share in the plaint schedule properties. The learned counsel appearing for the appellant would contend that even though Ex B6 and Ex B7 were produced before the trial Court, the trial Court without considering those documents had decreed the suit granting preliminary decree for 2/3rd share in the plaint schedule properties which is erroneous. So under such circumstances, after the execution of Ex B6 dated 8.7.1962 by the second plaintiff and third plaintiff in favour of Nalla Gounder, after his death, the first plaintiff and the first defendant are each entitled to 1/2 share in the plaint schedule properties. Hence I hold on point No. 1 that the first plaintiff and the first defendant are each entitled to 1/2 share in the joint family properties. The point No.1 is answered accordingly. 10. Point No.2 The learned counsel appearing for the appellant would contend that the learned trial Judge has come to a wrong conclusion that Exs. A11, A12, A15, A16 and A17 sale deeds were taken in the name of the first plaintiff from out of the Joint family income derived from the joint family properties. The first plaintiff in support of his contention that the properties purchased under Exs A11, A12, A15, A16 and A17 are purchased from out of the self acquired income of the first plaintiff has examined P.W.4,the vendor under Ex A11 sale deed to show that the first plaintiff is cultivating the lands purchased by him under Exs A11, A12, A15, A16 and A17 and out of the income derived by cultivating those lands, he had purchased those lands under the sale deeds mentioned above. The learned counsel for the appellant would contend that the recitals in Exs A11, A12, A15, A16 and A17 will go to show that the possession of those lands were delivered to the vendee only on the date of execution of those sale deeds and prior to those sale deeds, the first plaintiff was never in possession and enjoyment of those properties and there is no possibility for the first plaintiff to purchase those properties out of his own income. The learned counsel appearing for the appellant would further contend that it is the case of the first defendant/appellant that his father had given Rs.6000/- to the first plaintiff for the purchase of those lands and the total consideration under the above sale deeds will also come around Rs.6,500/- The burden is on the first plaintiff to show that the sale consideration under Exs A11,A12, A15, A16, and A17 were paid from out of his own income. Apart from that, the only contention is that the first plaintiff had acquired income by cultivating the lands on lease, there is no other evidence let in to show that the first plaintiff had other source of income of his own. Even on the date of Exs A11, A12, A15, A16 and A17 the joint family status was in tact. Under such circumstances, the properties covered under Exs A11, A12, A15, A16 and A17 are also to be partitioned in the suit. But those properties were not scheduled to the plaint. Under such circumstances, in the final decree proceedings those properties mentioned under Exs A11, A12, A15, A16 and A17 are to be included by amending the plaint schedule and the first plaintiff and the first defendant are each entitled to ½ share in those properties too. 11. The learned counsel appearing for the respondents relying on the Benami Transactions (Prohibition) Act 1988(45 of 1988) and contended that the appellant cannot now raise plea that the property purchased under Exs A11, A12, A15, A16 and A17 are the joint family properties but the above sale deeds itself taken benami in the name of the first plaintiff. But as long as the joint family status is in existence, the presumption will be the property purchased in the name of any of the co-parceners will be the property of the joint family. Unless it is proved that the properties stand in the name of one of the coparceners was purchased out of his own income. In this case, there is no evidence to show that the properties purchased under Exs A11, A12, A15, A16 and A17 were purchased out of the own income of the first plaintiff. Unless it is proved that the properties stand in the name of one of the coparceners was purchased out of his own income. In this case, there is no evidence to show that the properties purchased under Exs A11, A12, A15, A16 and A17 were purchased out of the own income of the first plaintiff. The learned counsel appearing for the appellant relying on the decision reported in Mudigowda, Gowdappa Sankh and others-vs-Ramchandra Revgowda Sankh(died ) by his legal representatives and another(AIR 1969 Supreme Court, 1076 and contended that the only burden is on the person who claims that the properties were purchased in his name of his self acquisition and that other co sharers need not prove those proprieties were purchased out of the funds of the joint family nucleus. The facts of the said case is that Gowdappa had one daughter by name Gangabai, while Apparaya had three children (i) Nenappa II,(ii) Revagowda and (iii) Subhadrabai. In 1930 Nenappa II was given in adoption to Gowdappa. He had two wives Kashibai and Sidgangawa. Revagowda married another Sidgangavva. In 1938 Revagowda was murdered. Thereafter Goudappa and Apparaya purported to effect a partition between themselves. At the time of the death of Nenappa I, six plots of lands belonged to the joint family. Five of these plots are survey Nos.43,59,65,66 and 69 measuring 137 acres and 15 guntas and assessed at Rs.126/12 and are located in Borgi Khurd. The other plot survey No.77 which was in Borgi Budruk measured 14 acres and 24 guntas and was assessed at Rs.16/14. The total area of the ancestral lands was, therefore, 151 acres and 27 guntas assessed at Rs.143/-. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 guntas and assessed at Rs.18/10 were acquired in various names. After Nenappa II was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April 1944. after the partition deed was executed various alienations were made by the two brothers. On 25th September 1944 by Ex 161 Gudappa gifted S.Nos.61 and 62 of Borgi Budruk and Survey No.45 of Borgi Khurd to defendant NO.4, Subhadrabai. after the partition deed was executed various alienations were made by the two brothers. On 25th September 1944 by Ex 161 Gudappa gifted S.Nos.61 and 62 of Borgi Budruk and Survey No.45 of Borgi Khurd to defendant NO.4, Subhadrabai. By Ex 162 dated 1st October 1946 Goudappa made a gift of plot Survey Nos.62 and 63 of Borgi Khurd and Survey No.11/3 of Borgi Budruk to defendant No.3 who is the daughter of Nenappa II. On 20th April 1948 by Ex 159 Apparaya sold Survey Nos 77 and 43 to defendant No.3 for a sum of Rs.5,000/-. ON the same day by Ex 160 Goudappa sold Survey No.79 for Rs.1000/- to Apparaya. Again on 17th May 1948, by Ex 158 Goudappa made a gift of plot Survey Nos 59 and 60 of Borgi Khurd, to defendant No.6 his widowed daughter. On 15th December 1948 Goudappa gave a portion of plot No.96 to Sidgangawa wife of Apparaya for maintenance. By Ex 166, dated 25th May 1950, Goudappa and defendant No.1, together sold to defendant No.5 portion of survey No.23 for a sum of Rs.3,000/- Finally on 19th November 1953 Apparaya executed his last Will which is Ex 168 whereby he bequeathed survey No 79 to defendant No.4 The plaintiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954, challenging the partition deed as fraudulent. He alleged that it was intended to defeat the rights of the widows, that it was never acted upon and that the family contained to be joint. The defendants contested the suit on the ground that the partition deed Ex 157 was a genuine transaction and was acted upon that Apparaya and Goudappa became separate in status and managed their properties separately. The defendants supported all the alienations as being genuine and effective. The trial Court came to the conclusion that 12 pieces of lands which were acquired between 191 and 1940 formed part of the joint family properties, that the partition deed Ex 157 was not intended to be acted upon but was executed to defeat the rights of the widows. The trial Court held that none of the alienations except the sale deed Ex 159 executed by Apparaya in respect of Survey plots Nos 43 and 77 in favour of defendant No.3 was binding on the plaintiff. The trial Court held that none of the alienations except the sale deed Ex 159 executed by Apparaya in respect of Survey plots Nos 43 and 77 in favour of defendant No.3 was binding on the plaintiff. The trial Court accordingly made a decree for partition with appropriate directions. The defendants took the matter in appeal to the High Court. The plaintiff also filed a cross objection with regard to sale deed Ex 150. But its judgment dated 12th December 1962, the High Court dismissed the appeal of the defendants and allowed the cross objection of the plaintiff. Hence the second appeal before the Apex Court wherein it has been held as follows: "It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate". The other ratio decidenti relied on behalf of the appellant is Mallesappa Bendeppa Desai and another-vs-Desai Mallapppa alias Mallesappa and another(AIR 1961 SCC 1268). The learned counsel would contend that the onus of proof is on the first plaintiff to show that the properties purchased under Exs A11, A12, A15, A16 and A17 were acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and it is for him to prove by clear satisfactory evidence his plea that the purchase of money proceeded from his separate funds. The relevant observation runs as follows: "The onus of proof must in such a case be placed on the manager and not on the coparceners. But, apart from the question of onus, the evidence given by respondent I in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent I had any means of his own it would be ideal to contend that the expense incurred for the litigation in question were not borne by the joint family income". Under such circumstances, there is absolutely no evidence let in on the side of the first plaintiff to show that the properties purchased by him under Exs A11, A12, A15, A16 and A17 are from out of his own income. Under such circumstances, there is absolutely no evidence let in on the side of the first plaintiff to show that the properties purchased by him under Exs A11, A12, A15, A16 and A17 are from out of his own income. Under such circumstances, both the first plaintiff and the first defendant are each entitled to ½ share in those properties also. The point No.2 is answered accordingly. 12. In fine, this appeal is allowed and the decree and Judgment made in O.S.No.638 of 1985 on the file of Sub Court, Sankari is modified and a preliminary decree is passed in respect of ½ share to the first plaintiff and ½ share to the first defendant in the plaint schedule properties and also in the properties purchased under Exs A11, A12, A15, A16 and A17. The manner of partition is relegated to the final decree proceedings. Necessary steps to be taken in the final decree proceedings to include the properties purchased under Exs A11, A12, A15, A16 and A17 to the plaint schedule. The first defendant/appellant will be entitled to his ½ share for partition provided, he pays the court fee before the trial Court. The trial court is directed to dispose of the final decree proceedings within a period of two months from the date of receipt of copy of this order. In the circumstances of the case, there is no order as to costs.