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2008 DIGILAW 2759 (MAD)

Dhanalakshmi & Others v. K. Loganathan & Another

2008-07-31

M.CHOCKALINGAM, R.SUBBIAH

body2008
Judgment M. Chockalingam, J. Challenge is made to a preliminary decree made in C.S.No.1211 of 1992, a suit for partition. .2. The defendants are the appellants. The respondents/plaintiffs filed a suit, seeking division of the plaint schedule mentioned properties, claiming 1/5th share each with the allegations that they are the sons of Kabali Naidu and Dhanalakshmi, the first defendant in the suit; that while the defendants 2 to 4 are their sisters and defendants 5 and 6 are their brothers; that the suit property situate at No.515, Anna Salai, Vannia Teynampet, Madras-600 018, more fully described in the schedule to the plaint, originally belonged to Ranganayakiammal, the paternal grand mother of the plaintiffs and also defendants 2 to 6; that she died intestate on 24.08.1964 and thus, the properties devolved upon her husband Munuswamy Naidu and her only son Kabali Naidu; that Munuswamy Naidu and his son Kabali Naidu enjoyed the said property without any division as their ancestral property by throwing in into the hotchpotch of Hindu Undivided joint family; that it was never treated by them as their separate property, though they inherited the same through a female ancestor; that the said Munuswamy Naidu died intestate on 22. 1978; that his undivided half share in the property devolved upon his only son Kabali Naidu and thus, he became the full owner of the suit property; that during the lifetime of Munuswamy Naidu, the plaintiffs and their father Kabali Naidu have created a registered mortgage in respect of the suit property in favour of George Town Cooperative Bank Limited, Madras and availed loan to improve the suit property; that it was utilised for the construction of the property; that the said Kabali Naidu died intestate on 3. 1990 and the property devolved upon the plaintiffs, their mother, the first defendant and the defendants 5 and 6; that the plaintiffs, the first defendants and defendants 5 and 6 are equally entitled to have share, namely 1/5th share each in the suit property; that the suit property was in the joint possession and enjoyment of the co-sharers; that there are more than 20 tenants, from whom the income to an extent of Rs.60,000/- is derived; that the first defendant, though collected the same in the past, has not given any share to the plaintiffs and that at the instigation of the other defendants, the first defendant has attempted to grab the property without giving due share to the plaintiffs and under these circumstances, there arose a necessity to file the suit. .3. The suit was resisted to by the defendants, inter-alia, stating that it is true, the properties originally belonged to Ranganayakiammal; that on her death, it came to the hands of her husband and also her family members; that it is not correct to state that the property was thrown into the hotchpotch of the Hindu Undivided Joint Family; that on the death of Munuswamy Naidu, it devolved on Kabali Naidu and on his death, it was to be divided among his wife and children and thus, all the defendants are equally entitled to along with the plaintiffs; that the entire income was not to an extent what was mentioned in the plaint and it was only a meager amount and apart from that, the income was also utilised for construction of building at first and for maintenance thereafter and therefore, the suit was to be dismissed. 4. The learned Single Judge framed seven issues and both sides evidence were adduced and documents were also marked. After hearing the arguments advanced and considering the materials available, the learned Single Judge took the view that the plaintiffs, the first defendant and the defendants 5 and 6 were entitled to 1/5th share each in the suit property and so far as mesne profit was concerned, the matter has got to be decided at the time of passing of final decree by initiating the proceedings under Order 20 Rule 12 C.P.C. Aggrieved over the same, the defendants have brought forth this appeal. 5. 5. Advancing arguments on behalf of the appellants, the learned counsel inter-alia raised only one submission, namely it is an admitted position that the property originally belonged to Ranganayakiammal by way of settlement and she is the paternal grand mother of plaintiffs and defendants 2 to 6; that it is an admitted position that she died intestate and thus, the property devolved upon her husband Munuswamy and when it came to the hands of Munuswamy, it was to be considered as a separate property; that he also died intestate and on his death, all are entitled to have a share equally; that though the learned Single Judge has found that no evidence has been adduced by the plaintiffs as to the factum of hotchpotch of Hindu Undivided Joint Family, he has stated that the circumstances would indicate that the property was actually thrown into the hotchpotch of Hindu Undivided joint family; and that in the absence of any evidence, it should not have been held so. 6. Added further the learned counsel that the property was actually inherited from the female ancestor; that on the death of Munuswamy Naidu, the husband of Ranganayakiammal, the property devolved upon Kabali Naidu, the only son, who also died intestate and hence by operation of law, all are equally entitled to and under these circumstances, the judgment of the learned single Judge has got to be set aside and modified. .7. The Court heard the learned counsel for the respondents. According to him, the learned Single Judge has marshalled the evidence proper and has taken a correct conclusion; that in the instant case, the property came to the hands of Munuswamy Naidu and also his son Kabali Naidu from the hands of Ranganayakiammal; that it was never treated as a separate property, but treated as hotchpotch of Hindu Undivided joint family property; that evidence was also adduced to show that the property was treated so; that it was actually mortgaged with George Town Co-operative Bank Limited, Madras and loan was discharged not by all, but by Kabali Naidu and the plaintiffs. Added further the learned counsel that the first defendant was all along recovering the rentals from nearly 20 tenants to the tune of Rs.60,000/-; that the learned Single Judge has found that it was utilised for maintenance; that from that time onwards, the first defendant has not produced any accounts nor has given any share and under these circumstances, the contentions now put forth by the learned counsel for the appellants have got to be rejected. 8. The Court has paid its anxious consideration on the submissions made and scrutinised the materials available. 9. It is not in controversy that the property in question, in respect of which division was sought for, originally belonged to Ranganayakiammal, the paternal grand mother of the plaintiffs and defendants 2 to 6. She died intestate on 24.08.1964 and by operation of law, the property devolved upon her husband Munuswamy Naidu and their only son Kabali Naidu. It is also an admitted position that the said Munswamy Naidu also died intestate on 22.02.1978 and thus, on his death, the property, by operation of law, was inherited by Kabali Naidu. Admittedly, Kabali Naidu is the husband of the first defendant and also the father of the plaintiffs and defendants 2 to 6. Now, the question that arose for consideration before the learned Single Judge and equally here also is that whether the property, which came to the hands of Munuswamy Naidu, the husband of Ranganayakiammal and also to her son Kabali Naidu was treated as Hindu Joint Family property. The learned Single Judge has also found so. This Court is of the considered opinion that in the absence of any evidence whatsoever, it cannot be held so. .10. Firstly, it is an admitted position that the property originally belonged to Ranganayakiammal and she died intestate and the property came to the hands of Munuswamy Naidu and also Kabali Naidu and she was also a female ancestor. Merely because the property was mortgaged with the George Town Co-operative Bank Limited, Madras and the loan was raised and utilised for the purpose of construction of suit .property and all have been enjoying the property, it cannot be taken as a proof that the property was actually thrown into the hotchpotch of Hindu Undivided Joint Family. Merely because the property was mortgaged with the George Town Co-operative Bank Limited, Madras and the loan was raised and utilised for the purpose of construction of suit .property and all have been enjoying the property, it cannot be taken as a proof that the property was actually thrown into the hotchpotch of Hindu Undivided Joint Family. On the contrary, the property has come to the hands of two persons, namely Munuswamy Naidu and Kabali Naidu from Ranganayakiammal, the female ancestor and they have been enjoying the property. On the death of Munuswamy Naidu, who died intestate, the property came to the hands of Kabali Naidu. It is an admitted position that Kabali Naidu also died intestate on 3. 1990. It is pertinent to point out that all the parties are entitled to their respective shares, by operation of law. It is not the case where the court could hold that the property was actually thrown into the hotchpotch of Hindu Undivided Joint Family, in the absence of any evidence whatsoever. The evidence adduced by the respondents side and also taken into account by the learned Single Judge, in the considered opinion of this Court, is not the evidence in the strict sense of term to hold that the property was actually thrown into the hotchpotch of Hindu Undivided Joint family. Hence the property in the hands of Munuswamy Naidu was to be considered, on his death, as a separate property and by operation of law, all the persons, namely plaintiffs and defendants 1 to 6 are entitled to have equal share of 1/8th share each in the property. 11. Accordingly, the judgment of the learned Single Judge that the plaintiffs, the first defendant and the defendants 5 and 6 were entitled to 1/5th share each is set aside and it is modified that the plaintiffs are entitled to 1/8th share each in the property in question. So far as the income derived from the property is concerned, the plaintiffs are entitled to 1/8th share each. So far as the quantum of mesne profits is concerned, as rightly stated by the learned Single Judge, it can be decided at the time of passing of final decree by initiating proceedings under Order 20 Rule 12 C.P.C. Accordingly, the judgment of the learned Single Judge is modified. This Original Side Appeal is disposed of. No costs.