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2009 DIGILAW 683 (MAD)

Ramaswamy Gounder & Others v. Palanisamy & Others

2009-03-05

S.K.KRISHNAN

body2009
Judgment Aggrieved by the judgment and decree passed by the Subordinate Judge, Tirupur, in A.S.No.21 of 1992 dated 27. 1993 reversing the judgment and decree passed in O.S.No.994 of 1982 dated 22. 1992 by the District Munsif, Tirupur, the defendants have filed the above second appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. The suit was filed by the plaintiffs for the following relief:- a. To direct the division of the A and B schedule properties into two equal shares with regard to good and bad soil allotting one such share to the plaintiffs and putting them in possession thereof. 3. The case of the plaintiffs, in short, is as follows:- a. The plaintiffs are the sons of the first defendant through his first wife Devammal. The third defendant is the second wife. The defendants 2 and 4 to 6 are the children of the first defendant through the third defendant. The seventh defendant is the friend of the first defendant. b. The first defendant inherited large extent of ancestral family properties. The plaintiffs and the defendants 1 and 2 constituted a joint Hindu family. During partition in the year 1956, the first defendant was allotted the properties described in A Schedule besides other properties. The mother of the plaintiffs died at the early age of the plaintiffs. After the death of the plaintiffs mother, the first defendant tried to defeat the legitimate share of the plaintiffs in the properties, which has greater momentum after the marriage of the first defendant with the third defendant. On 5. 1976, the first defendant sold an undivided half share in the items comprised in A schedule properties to one Ramaswamy Chettiar and his wife Soundammal of Tirupur. The first defendant is alleged to have acted as the guardian of the second defendant alone. Though possession was stated to have been given to the vendees, the same continues to be with the plaintiffs. Since the vendees could not get the possession of the properties, they have transferred their alleged title in the said half share in favour of the seventh defendant and the same will not bind the plaintiffs. The first defendant finding that the possession of the plaintiffs cannot be disturbed, he has settled the remaining extent in A schedule properties in favour of the defendants 4 to 6 on 12. The first defendant finding that the possession of the plaintiffs cannot be disturbed, he has settled the remaining extent in A schedule properties in favour of the defendants 4 to 6 on 12. 1980 and the said settlement touching the entire remaining extent of joint family property is void abinitio. Since the plaintiffs are in possession, possession was not given to any of the donees. The defendants 4 to 6 do not derive any title to the properties under the said gift. The plaintiffs are entitled to a half share in the properties said to have donated to the defendants 4 to 6. The defendants 4 to 7 neither do get nor entitle to any share in the A schedule properties. The defendants 1 and 3 have purchased B schedule properties out of the income derived from the joint family in favour of the third defendant. The third defendant has no means or capacity to purchase any property and therefore, the plaintiffs are entitled to a half share in B schedule properties. The plaintiffs are employed as skilled labourers in reputed Banian factories and they have put up a tiled shed with their own funds in the eastern part of the A schedule properties. Since the defendants are disturbing the possession of the plaintiffs and the seventh defendant is attempting to put up a construction, it is not possible for the plaintiffs to remain undivided with the defendants 1 to 3. Hence, the plaintiffs have filed the above said suit for the following relief:- (i) To direct the division of the A and B schedule properties into two equal shares with regard to good and bad soil allotting one such share to the plaintiffs and put them in possession thereof. 4. The defendants contested the suit by filing a written statement, inter alia, contending as follows: a. The first defendant was not inherited any large extent of ancestral properties. He got only 0-78, 0-23, 0-6 cents in S.F.No.16A with some trees and a right in the well. He got this share from other partners on 9. 1956 to the value of Rs.354.11 Annas. The first defendant was requested to settle some ancestral family debt also. He got only 0-78, 0-23, 0-6 cents in S.F.No.16A with some trees and a right in the well. He got this share from other partners on 9. 1956 to the value of Rs.354.11 Annas. The first defendant was requested to settle some ancestral family debt also. After that the first defendant gave 0-6 cent vacant land in S.F.No.16A to the plaintiffs, wherein the first defendant constructed a pucca building during the year 1957 and sold some of his other properties, namely, 10 cents to one Chinnammal w/o. Palanisamy Gounder for Rs.900/-and 6 cents to one Arukkaniammal w/o. Metturkarar for Rs.600/-during the year 1958; 5 cents to one Muthusamy Gounder for Rs.500/-in the year 1959; and 4 cents to Solliappa Gounder for Rs.360/- in the year 1960. All these amounts were utilised for constructing the buildings. Now the plaintiffs are enjoying the house and receiving monthly rent of more than Rs.400/-and the value of the building is more than Rs.1.00 lakh and hence, the plaintiffs have already got their share more than what they are entitled to. Thus the plaintiffs have taken their share more than what they are entitled to in respect of the A schedule property. There is no joint family for 20 years and that there is no joint family income for 20 years. The first defendant for his behalf and on behalf of the second minor defendant sold 0-36 cents in S.F.No.16A to Ramasamy Chettiar and Soundammal for a valid consideration of Rs.3600/-and hence, the sale is unquestionable and there is no encumbrance. From them, the seventh defendant purchased and enjoying the same without any disturbance or hindrance by having clear title. Since the seventh defendant is a bona fide purchaser, the sale is a valid one. The other share of 0-36 cents in S.F.No.16A was settled in favour of the defendants 4 to 6 and such settlement is valid, lawful and executable and therefore, the plaintiffs have no right to seek for partition. Since B schedule properties are self acquired property of the third defendant, the plaintiffs are not entitled to seek for partition of the same. Even at the time of marriage of the third defendant with the first defendant, she brought huge properties from her father and mother. Since B schedule properties are self acquired property of the third defendant, the plaintiffs are not entitled to seek for partition of the same. Even at the time of marriage of the third defendant with the first defendant, she brought huge properties from her father and mother. The third defendant got some property along with her sisters from their father by means of a registered will, dated 30.11.1951 and the properties are situated at Chettipalayam in Palladam Taluk. They are approximately 4.29 acres comprising in S.F.Nos.113/1, 114, 112, 113/3, 110, 111, 113/4 and right in the well in S.F.No.112, 113/2. On 16. 1967, the third defendants sister Kanniammal settled her shares and rights in favour of the third defendant. On 9. 1977, the third defendants mother Marathal executed a registered will and handed over all her movable properties to the third defendant. Since the mother of the third defendant is no more, she acquired the following lands as per the will, namely, (a) 1-3/4 acres dry land; (b) old houses bearing door Nos.27 and 48; (c) vacant land about 10 cents (d) cash Rs.2000/- (e) bullock and (f) buffalo etc. Hence, having acquired huge properties, through the income of which, the third defendant purchased B schedule properties through a registered sale deed from one Murugasamy s/o. Subbanna Gounder on 14. 1972 and therefore, B schedule property is the self acquired property and it has no connection with the joint family property. To swindle the B schedule property, the plaintiffs have filed the above said suit and therefore, the suit has to be dismissed. 5. On the aforesaid pleadings, several issues have been framed by the trial Court and during the trial, on the side of the plaintiffs P.Ws.1 to 3 have been examined and Exs.A1 to A6 have been marked. On the side of the defendants D.Ws.1 to 3 have been examined Exs.B1 to B7 have been marked. 6. The trial Court on a careful consideration of the oral and documentary evidence adduced in the case dismissed the suit. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.21 of 1992 before the Subordinate Judge, Tirupur. The learned Subordinate Judge partly allowed the appeal. Being aggrieved by that the above second appeal has been filed by the defendants. The trial Court on a careful consideration of the oral and documentary evidence adduced in the case dismissed the suit. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.21 of 1992 before the Subordinate Judge, Tirupur. The learned Subordinate Judge partly allowed the appeal. Being aggrieved by that the above second appeal has been filed by the defendants. While admitting the above second appeal, the following substantial question of law has been framed:- "The substantial question of law is whether the judgment of the lower court in so far as it reverses that of the trial court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law." 7. Heard both. 8. Mr. S.V. Jayaraman, learned Senior Counsel for the appellants contended that when admittedly the plaintiffs are in possession of the joint family properties and the same are not included without giving any explanation for the same, the filing of the suit for partition is bad and therefore, the very suit itself has to be dismissed. 9. The learned Senior Counsel further contended that the lower appellate court failed to see the categorical finding of the trial court that though the plaintiffs are in possession of a house, which is admittedly a joint family property to the value of more than one lakh rupees, such property was not included in the suit and no reason has been assigned for such non-inclusion and therefore, the judgment and decree of the lower appellate court partly reversing the judgment and decree of the trial court is not sustainable. 10. Further, the learned Senior Counsel for the appellants contended that the father being the Karta had the authority to make a gift of ancestral immovable property to a reasonable extent out of the Joint Hindu Family Property in favour of his daughters and such authority is recognised in old Hindu Text Books as well as by the court in recent times and therefore, the judgment of the lower appellate court is not sustainable in law. 11. In support of his contentions, the learned Senior Counsel relied upon the following decisions of the Apex Court:- a) R. Kuppayee & Another V. Raja Gounder (2004-2-L.W.386). b) Guramma Bhratar Chanbasappa Deshimukh And Others V. Mallappa Chanbasappa And Another (Air 1964 Supreme Court 510). 12. Per contra, Mr. 11. In support of his contentions, the learned Senior Counsel relied upon the following decisions of the Apex Court:- a) R. Kuppayee & Another V. Raja Gounder (2004-2-L.W.386). b) Guramma Bhratar Chanbasappa Deshimukh And Others V. Mallappa Chanbasappa And Another (Air 1964 Supreme Court 510). 12. Per contra, Mr. T.M. Hariharan, learned counsel for the respondents contended that in the absence of any pleading in the written statement, there is no need to look into the evidence or it is not correct to look into the evidence and therefore, when the above second appeal is filed on the ground that P.W.1 admits that he did not include the house in his possession in the schedule to the partition suit is not sustainable and therefore, the second appeal is not maintainable. 13. Further, the learned counsel contended that as per the settled law the first appellant gifted 0.36 cents to his daughters is impermissible and therefore, such gift cannot be accepted and hence, the judgment of the lower appellate court has to be confirmed. 14. Further, the learned counsel for the respondents submitted that though the B schedule properties have been acquired out of the joint family income, since the courts below took a consistent view and negatived the claim of the respondents, he confined his argument only in respect of the A schedule properties and the B schedule property is not the subject matter of the second appeal. 15. In support of his contentions, the learned counsel for the respondents relied upon the following decisions of the Apex Court:- a. Bondar Singh And Others V. Nihal Singh And Others ( (2003) 4 Scc 161 ). B. Thimmaiah And Others V. Ningamma And Another ( (2000) 7 Scc 409 ). C. E. Mahaboob Saheb V. N. Sabbarayan Chowdhary And Others ( (1982) 1 Scc 180 ). D. Satya Gupta(Smt) Alias Madhu Gupta V. Brijesh Kumar ( (1998) 6 Scc 423 ). 16. B. Thimmaiah And Others V. Ningamma And Another ( (2000) 7 Scc 409 ). C. E. Mahaboob Saheb V. N. Sabbarayan Chowdhary And Others ( (1982) 1 Scc 180 ). D. Satya Gupta(Smt) Alias Madhu Gupta V. Brijesh Kumar ( (1998) 6 Scc 423 ). 16. Firstly, since the courts below came to a conclusion that the B schedule properties have been purchased out of the income derived from the properties belonged to the third appellant and it is not proved by the respondents that the B schedule properties have been purchased out of the income derived from the joint family and accepting the same, the learned counsel for the respondents confined his argument only in respect of A schedule properties and the B schedule property is not the subject matter of the second appeal, the concurrent findings of the courts below as far as B schedule properties are confirmed. 17. Now, the only question to be decided is whether the respondents are entitled for partition in the A schedule properties or not. 18. It is an admitted fact the land to an extent of 72 cents situated in Thoddipalayam Village was allotted to the first appellant under Ex.A3 in the partition, which is the A schedule property. It is also an admitted fact that the A schedule property is the ancestral property. It is not in dispute that the appellants 1 and 2 and the respondents 1 and 2 are the joint family members. The appellant on behalf of the second appellant and on his behalf sold undivided half share of 0.36 cents out of 72 cents to one Ramaswamy Chettiar and his wife Soundammal of Tirupur on 5. 1976 under Ex.A1. Thereafter, the first appellant gifted the remaining undivided half share of 0.36 cents to his daughters the appellants 4 to 6 on 12. 1980. 19. It is not the case of the appellants that the land sold under Ex.A1 to the said Ramasamy Chettiar and his wife Soundammal for the benefit of the respondents 1 and 2 or to meet the joint family expenses and educational expenses. It is also not proved by the appellants, as rightly stated by the first appellate Court, that the land was sold to meet joint family expenses and educational expenses of the children of the first appellant. In this regard, the lower appellate stated as follows:- Tamil 20. It is also not proved by the appellants, as rightly stated by the first appellate Court, that the land was sold to meet joint family expenses and educational expenses of the children of the first appellant. In this regard, the lower appellate stated as follows:- Tamil 20. From the above, it is clear that the appellants 1 and 2 have sold their share in the undivided property for their benefit and that they have no right to claim any share in the A schedule property, whereas it cannot be said that the respondents 1 and 2 cannot claim their due share in the A schedule property. 21. It is an admitted fact the remaining 0.36 cents have been given to the appellants 4 to 6 by the first appellant as gift. In this regard, the contention of the learned Senior Counsel that the father being the Karta had the authority to make a gift of ancestral immovable property to a reasonable extent out of the Joint Hindu Family Property in favour of his daughters and such authority is recognised in old Hindu Text Books as well as by the court in recent times and therefore, the judgment of the lower appellate court is not sustainable in law cannot be accepted. Even in the decision reported in 2004-2-L.W.386 relied on by the learned Senior Counsel, the Honble Apex Court observed as follows:- "On the authority of the judgments, it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage." 22. When the entire available ancestral property of 0.36 cents have been gifted to his daughters by the first appellant, the act of the first appellant is against the well settled principles of law and therefore, the above decision would not lend any support to the contention of the learned Senior Counsel for the appellants, whereas in the decision reported in (2000) 7 SCC 409 relied on by the learned counsel for the respondents, the Honble Apex Court observed as under:- "This court in Ammathayee v. Kumaresan summarised the Hindu law on the question of gifts of ancestral properties in the following words:- "Hindu law on the question of gifts of ancestral property is well settled. So far as moveable property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection: (see Mullas Hindu Law, 13THEdn., p. 252, para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for pious purposes; (see Mullas Hindu Law, 13TH Edn., para 226, p.252). Now what is generally understood by pious purposes is gift for charitable and/or religious purposes. But this Court has extended the meaning of pious purposes to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in the case the father is dead:(see Kamla Devi v. Bachulal Gupta)." 17. The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognized "pious purpose". The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognized "pious purpose". The High Court has not come to any conclusion as to whether the gift of Items 3 to 6 by Hiri to Respondent 2 was within reasonable limits or in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of Respondent 2s marriage. It must be taken, therefore, that the findings of the lower courts on both counts were accepted. That being so, Hiri could not have donated Items 3 to 6 to Respondent 2 and the deed of gift dated 6. 1971 was impermissible under Hindu law. The question is – could such an alienation be made with the consent of Appellant 1?." (emphasis supplied) 23. Without keeping in mind the total extent of land, the first appellant gifted the entire available ancestral property to his daughters in an unreasonable manner that too without any pious purpose, which is against the settled principles of law and therefore, the so-called gift cannot have any leg to stand in the eye of law and hence, the said gift becomes invalid. In the above circumstances, it has to be held that the respondents 1 and 2 are entitled to 0.36 cents in an equal share. 24. Further, as rightly contended by the learned counsel for the respondents that since the second appeal has been filed based on the evidence that P.W.1 admits that he did not include the house in his possession in the schedule to the partition suit without raising a plea in the written statement to that effect, the second appeal itself is not maintainable as per the principles laid down in ( (2003) 4 SCC 161 . 25. Since the lower appellate court on the basis of oral and documentary evidence came to a conclusion that the respondents are entitled to 0.36 cents which cannot be said to be perverse or illegal, the Judgment and decree of the lower appellate court has to be confirmed. The substantial question of law is answered against the appellants. Accordingly, the second appeal is dismissed confirming the judgment and decree of the lower appellate Court. No costs. Connected M.Ps. are also dismissed.