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2013 DIGILAW 2085 (MAD)

M. Ranalingam v. A. Muthusamy

2013-06-19

R.S.RAMANATHAN

body2013
JUDGMENT 1. The Plaintiff in O.S.No.372 of 1990 on the file of Sub Court, Namakkal is the appellant. He filed the suit for partition claiming 1/5th share in the suit property and the suit was dismissed and aggrieved by the same, this appeal is filed. 2. The case of the plaintiff as seen from the plaint is as follows: The first defendant was the father and he had four sons, namely, the plaintiff, defendants 2 and 3 and Suseendran who died and his legal representatives are the defendants 5 to 8. The fourth defendant was the mother of the plaintiff/ defendants 2 and 3. The properties are the joint family properties of the plaintiff and defendants 1 to 3 and 5 to 8 and therefore, the plaintiff is entitled to 1/5 share in the suit property. The first defendant sold the suit property to defendants 9 to 11 and therefore, they were impleaded. 3. The first defendant contested the suit by filing statement stating that the suit property was his separate property and plaintiff had no right over the same. The suit property was purchased from and out of his earnings under Ex.A1 on 23.10.1974 and in that property, the plaintiff had no right by birth and as the owner of the property, he was entitled to sell the property and the plaintiff cannot question the same. 4. The suit property was purchased from and out of his earnings under Ex.A1 on 23.10.1974 and in that property, the plaintiff had no right by birth and as the owner of the property, he was entitled to sell the property and the plaintiff cannot question the same. 4. The fourth defendant filed a memo stating that she had no objection for granting decree as prayed for by the plaintiff and the fifth defendant filed a statement stating that the suit property was purchased in the name of the first defendant as he was the head of the family and the husband of the fifth defendant was living with the first defendant and in March, 1987 there was a family arrangement and in that family arrangement Door No.55 in Bank Street was allotted to plaintiff and Door No.57 was allotted to the third defendant and the suit property was allotted to the husband of the fifth defendant and father of the defendants 6 to 8 and on 26.12.1986, the first defendant mortgaged the suit property to ninth defendant and it was agreed that the husband of the fifth defendant has to repay the same and redeem the mortgage and the plaintiff and third defendant were enjoying properties given to them by the first defendant and the suit property belongs to the defendants 5 to 8 and therefore, the plaintiff is not entitled to any relief. 5. The ninth defendant filed statement stating that the plaintiff is not entitled to claim any right over the property and the suit property was given to the ninth defendant and as per the Muchulika dated 26.12.1986, the ninth defendant is enjoying the property and also spent more than Rs.50,000/- and therefore, the suit is liable to be dismissed. 6. On the basis of the pleadings, the following issues were framed: (i) Whether the settlement deed dated 24.09.1987 was true and valid? (ii) Whether the valuation and court fee were proper? (iii) Whether the suit is barred for partial partition? (iv) Whether the plaintiff was entitled to the relief of partition? 7. On the side of the plaintiff, plaintiff was examined as P.W.1 and marked 20 documents and on the side of the defendants, the first defendant was examined as D.W.1. 8. (ii) Whether the valuation and court fee were proper? (iii) Whether the suit is barred for partial partition? (iv) Whether the plaintiff was entitled to the relief of partition? 7. On the side of the plaintiff, plaintiff was examined as P.W.1 and marked 20 documents and on the side of the defendants, the first defendant was examined as D.W.1. 8. The Trial Court held that the plaintiff failed to prove that the suit property was purchased in the name of the first defendant out of the earnings of the joint family and the plaintiff himself admitted that the joint family was not having any property or income and the plaintiff has not proved that out of the income given by the plaintiff and defendants 2 and 3, the property was purchased in the name of the first defendant. Further, under Exs.A19 and A20, the first defendant executed settlement deed in respect of properties mentioned therein, in favour of the plaintiff and the third defendant and in those documents it was mentioned that the properties were the self-acquired properties of the first defendant and it was accepted by the plaintiff and therefore, the plaintiff failed to prove that the suit property was the joint family property of himself and the defendants 1 to 3 and 5 to 8 and the settlement deed dated 24.09.1987 executed in favour of the plaintiff was a true and valid document and the same was admitted by the first defendant in evidence and the suit was also not barred for partial partition and the court fee paid was correct and dismissed the suit holding that the plaintiff was not entitled to relief of partition. 9. It is submitted by the learned counsel for the plaintiff that admittedly, the first defendant was the father and Kartha of the family and the property was purchased in the name of the first defendant as evidenced by Ex.A1 and therefore, a presumption can be drawn that the property was the joint family property in the hands of the first defendant and that was not properly appreciated by the Court below. He further submitted that the first defendant deposed that he was a contractor and earned money and from that he purchased the suit property. He further submitted that the first defendant deposed that he was a contractor and earned money and from that he purchased the suit property. No evidence was let in to substantiate the same and therefore, the lower Court ought to have held that the property purchased in the name of the Kartha of the joint family must be considered as joint family property and the first defendant failed to prove that it was the self-acquired property and therefore ought to have decreed the suit as prayed for. 10. The following point for consideration arises in this first appeal: (i) Whether the suit property was a self-acquired property of the first defendant or the joint family property of the plaintiffs/ defendants 1 to 3 and 5 to 8? 11. Admittedly, the property was purchased in the name of the first defendant in the year 1974 as evidenced by Ex.A1. It is seen from Ex.A1 that the consideration of Rs.4,300/- was received by the vendor from the first defendant. The first defendant was admittedly aged 90 years when he gave evidence in the year 1994 and he deposed that he was working as contractor and out of the earnings he purchased property. It is not the case of the plaintiff that the first defendant was not earning any income. Further, some other properties were purchased in the name of the first defendant and in respect of the properties, the first defendant executed settlement deed Exs.A19 and A20 in favour of the plaintiff and third defendant and those settlement deeds were accepted and acted upon by the plaintiff and the third defendant. If the first defendant had no income and the properties purchased in the name of the first defendant were ancestral properties, the first defendant had no right to execute settlement deed in favour of the plaintiff and third defendant. But the settlement deeds were admitted and acted upon. Further, in the settlement deeds, the properties were described as the self-acquired properties of the first defendant and the plaintiff also admitted that the first defendant had several sources of income and he acquired properties and those properties were his self acquired properties. 12. But the settlement deeds were admitted and acted upon. Further, in the settlement deeds, the properties were described as the self-acquired properties of the first defendant and the plaintiff also admitted that the first defendant had several sources of income and he acquired properties and those properties were his self acquired properties. 12. Therefore, considering all these aspects, the Court below has rightly held that the suit property was self acquired property of the first defendant and the plaintiff had no claim over the property and the first defendant also sold the properties to tenth and eleventh defendant under Exs.A6 and A7 and therefore, the plaintiff cannot claim any right over the property and dismissed the suit. I therefore, do not find any infirmity in the findings of the Trial Court and I am in complete agreement with the finding of the Trial Court that the property was the self acquired property of the first defendant and the plaintiff cannot claim any right over the property as the property was sold by the first defendant during his lifetime in favour of the tenth and eleventh defendants. Hence, this first appeal fails. 13. In the result, the judgment and decree of the trial Court is confirmed and the appeal is dismissed. Consequently, the connected miscellaneous petition is also closed. No costs.