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2013 DIGILAW 2317 (MAD)

Rajagopal Gounder v. Madurai Gounder (deceased)

2013-07-04

R.S.RAMANATHAN

body2013
JUDGMENT 1. The plaintiff in O.S.No.42 of 1987, on the file of the Sub Court, Villupuram, is the appellant herein. He filed the suit for partition and for mesne profit. 2. The Trial Court decreed the suit partly, and granted 1/6 share to the plaintiff in respect of items 1 to 3, 5, 6, 9 to 18, 29, 32 to 37 and half share in items 22 and 23 of 'A' schedule property. Insofar as 'B' schedule properties are concerned, the Trial Court held that the second item of 'B' schedule property was also liable to be partitioned and the plaintiff was granted 1/6 share in it. 3. Aggrieved by the rejection of the plaint in respect of items 19, 20, 33 and 34 and for the whole of items 22 and 23 of 'A' schedule property, and also aggrieved by the findings in respect of the loans payable by the family, this Appeal was filed. 4. The case of the appellant/plaintiff, as seen from the plaint, is as follows:- i) The first defendant, Madurai Gounder, was the head of the family. The plaintiff and the defendants 2 to 5 are his children. On 03.04.1974, there was a partition between the first defendant and his brother. In that partition, the first defendant got five acres and 41 = cents of punja lands, and 7 acres and 41 cents of nanjai lands and all the properties are fertile lands and the family was getting good income from those properties, and from and out of the income earned from those properties, various other properties were purchased in the name of the first and second defendants and therefore, all the properties mentioned in 'A' schedule properties are the joint family properties, in which, the plaintiff is entitled to 1/6 share. Hence, the plaintiff issued a suit notice to the defendants 1, 2, 6 to 8, claiming 1/6th share in the suit properties, to which, the defendants 1, 2, 6 and 7 sent a reply, containing false allegations, stating that the properties were not ancestral properties and the family incurred debts and to discharge the debts, properties were sold. Hence, the plaintiff issued a suit notice to the defendants 1, 2, 6 to 8, claiming 1/6th share in the suit properties, to which, the defendants 1, 2, 6 and 7 sent a reply, containing false allegations, stating that the properties were not ancestral properties and the family incurred debts and to discharge the debts, properties were sold. Even at the time of filing of the suit, the family was liable to pay loans and the family incurred an expenditure of Rs.75,000/- for laying borewell and in order to meet the family necessity and to discharge the antecedent debts, the properties were sold to the defendants 6 to 8 and therefore, the plaintiff is not entitled to claim partition. As the defendants refused to partition the suit properties, the plaintiff filed the suit, seeking for the relief, as stated supra. 5. The defendants 1, 3 to 5 filed a written statement, stating that the first defendant was the Kartha of the family. There was a partition between the first defendant and his brother, wherein, the properties were allotted to the first defendant. Thereafter, various properties were purchased from and out of the income obtained from the properties allotted in favour of the first defendant. It is further stated that the second defendant was having means to buy properties in his name and to discharge the expenses incurred by the family, the properties were sold to the defendants 6 to 8 and therefore, those sale deeds are binding upon the plaintiff. The allegation of the plaintiff that Casuarina trees were sold for a sum of Rs.24,000/-, which were grown in the properties mentioned as items 8, 30 32 was false and the first defendant incurred more than a lakh to conduct the marriages and the plaintiff, without clearing his liability, cannot claim any share in the properties. It is further stated that the items 8, 31 and 32 are not three different properties and they are one and the same and in respect of the properties in items 22 and 23, half share belonged to the family and the remaining half share belonged to the second defendant and there is no property mentioned in 'B' schedule and therefore, the plaintiff, without paying the debts, is not entitled to seek for the relief of partition. 6. 6. The second defendant filed separate written statement, stating that it was false to state that the joint family properties generated income and he was not having any independent source of income to purchase any properties on his own. He purchased half share in items 22 and 23 by selling the jewels belonged to his wife and by the money advanced by his father-in-law and therefore, the plaintiff cannot claim any right over the half share in respect of items 22 and 23 purchased in his (i.e., second defendant) name and the Court fee paid was not correct. 7. The defendants 6 and 7 filed written statement admitting that the plaintiff and the defendants 1 to 5 constitute a joint family and for the purpose of discharging loans incurred by the joint family, the properties were sold to them and even as per the sale deeds, they have discharged various promissory notes and therefore, the sales are binding on the plaintiff and without a prayer for setting aside the sale deeds, the plaintiff cannot claim any partition. 8. The eighth defendant filed written statement, stating that the properties purchased by him was sold to him for the family necessities. He has stated that the first defendant wanted to purchase a property from one Chockalingam Chettiar, and for that purpose, the first defendant received a sum of Rs.14,175/- from the eighth defendant and to discharge the loan payable to the Agharam Society, a sum of Rs.5,000 was paid and therefore, the sale in favour of the eighth defendant was for a valuable consideration and the same is binding on the family and therefore, the property purchased by him was not liable for partition. 9. On the basis of the above pleadings, the following Issues were framed by the Trial Court:- i) Whether the suit was bad for non-joinder of necessary parties? ii) Whether the value of the suit and the Court fee paid was correct? iii) Whether the debts incurred by the family, as stated in the written statement were true and authentic? iv) Whether the sales were not for family necessities and were not binding on the plaintiff? v) Whether the plaintiff has to pray for setting aside those sale deeds? vi) Whether the properties purchased in the name of the second defendant were not his separate properties? iv) Whether the sales were not for family necessities and were not binding on the plaintiff? v) Whether the plaintiff has to pray for setting aside those sale deeds? vi) Whether the properties purchased in the name of the second defendant were not his separate properties? vii) Whether the plaint 'B' schedule properties were the properties of the second defendant's wife? viii) Whether the plaintiff was entitled to the relief of partition and separate possession? ix) Whether the plaintiff was entitled to seek accounts? and x) To what relief, the plaintiff is entitled to? 10. The Trial Court tried Issues iv) and v) and held that, without setting the sale deeds executed in favour of the defendants 6 to 8, the suit for partition was not maintainable. Even assuming that the suit for partition was maintainable, the sales in favour of the defendants 6 to 8 were for the family necessities and the same were binding on the plaintiff and therefore, the plaintiff was not entitled to claim partition in respect of the sales made in favour of the defendants 6 to 8, and answered Issue iv) and v) against the plaintiff? Issue vi) was answered against the plaintiff by holding that half share in items 22 and 23 were purchased in the name of the second defendant by selling his wife's jewelry and the money he obtained from his father-in-law. Therefore, in respect of half share in items 22 and 23, the plaintiff is not entitled to seek partition, as they are the separate properties of the second defendant. Issue No.vii) was partly answered in favour of the plaintiff by holding that in respect of 'B' schedule property, the plaintiff was entitled to partition in respect of items 2 and 3. Issue No.i) was answered against the plaintiff, by stating that the suit was bad for non-joinder of necessary parties. Admittedly, some of the properties were sold to various persons and those purchasers were not made as parties in the suit. Issue No.ii) was answered against the plaintiff by holding that the Court fee paid by the plaintiff was not correct. Issue No.i) was answered against the plaintiff, by stating that the suit was bad for non-joinder of necessary parties. Admittedly, some of the properties were sold to various persons and those purchasers were not made as parties in the suit. Issue No.ii) was answered against the plaintiff by holding that the Court fee paid by the plaintiff was not correct. Issue No.iii) was answered against the plaintiff and the Trial Court held that family incurred a sum of Rs.75,000/-as expenses and that was also admitted by the plaintiff in another suit, viz., O.S.No.1310 of 1984 and therefore, the plaintiff is liable to pay the proportionate share in the expenses incurred by the family. Issue No.ix) was answered against the plaintiff holding that the first defendant was not liable to render accounts, as he was the Kartha of the family. Issue no xiii) and x) were answered by holding that the plaintiff was not entitled to 1/6 share in respect of items 1 to 3, 5, 6, 9 to 18, 29, 32 to 37 and half share in items 22 and 23 of 'A' schedule property and items 21, 30 and 31 have to be deleted from 'A' schedule properties, as the same were mentioned as items 7, 8 and 11 and in respect of 'B' schedule property, the plaintiff is entitled to claim share in respect of second item only and the plaintiff has to pay 1/6 share in respect of the expenses incurred by the family. Hence, this Appeal. 11. It is submitted by the learned counsel appearing for the appellant that the Trial Court erred in holding that the family incurred debts and to discharge the same, the properties were sold to the respondents 6 to 8. According to the appellant, the joint family possessed of the properties, which were all agricultural properties, which generated good income. Therefore, there was no necessity for the family to incur expenses and hence, the sales in respect of items 19, 20, 30 and 37 under Exs.B.27, 28 and 34 in favour of the respondents 6 to 8 were not for family necessities and those were not binding on the appellant. Therefore, the appellant was entitled to seek 1/6 share in respect of those properties also. 12. Therefore, the appellant was entitled to seek 1/6 share in respect of those properties also. 12. The learned counsel for the appellant further submitted that insofar as items 22 and 23 of 'A' schedule properties were concerned, it was admitted by the second respondent in evidence that those properties were purchased in his name and according to him, the sale consideration was paid by selling his wife's jewelry and from the money, he received from his father-in-law, but no acceptable evidence was adduced by him to that effect. Moreover, the second respondent himself has admitted that he was not having any independent income at the relevant point of time when the property was purchased in his name, and therefore, when the joint family was possessed of various properties and the junior member was not having any independent source of income, any purchase, made in the name of junior member, must also belong to the joint family, and therefore, the appellant was entitled to claim his share in respect of half share in items 22 and 23 purchased in the name of the second respondent and this aspect was not properly appreciated by the Trial Court 13. The learned counsel for the appellant further submitted that the appellant was not liable to share the expenses incurred by the family, as the respondents have not adduced any evidence to show that the family incurred an expenditure of Rs.80,000/-for laying the borewell. Therefore, the findings of the Trial Court that the appellant has to pay 1/6 share of the expenses incurred by the family are to be set aside. The learned counsel also submitted that the Trial Court erred in deleting items 21, 30 and 31 from the suit schedule properties on the ground that those items were already mentioned as items 7, 8 and 11. The learned counsel submitted that though survey numbers and extents of the properties are same, boundaries are different and having regard to the total extent in respect of those survey numbers, items 21, 30 and 31 are separate properties and they are not the same properties, mentioned as items 7, 8 and 11 in the suit schedule and hence, those properties are also liable for partition. 14. Per contra, Mr. 14. Per contra, Mr. S.K. Raghunathan, the learned counsel appearing for the respondents 2, 6 to 8 submitted that the sales made in favour of the respondents 6 to 8, viz., the defendants 6 to 8 were for family necessities and the respondents proved their family necessities by producing the promissory notes, which were discharged by them and some of the promissory notes were executed by the appellant along with his father and brothers and therefore, the appellant cannot be permitted to contend that there was no necessity for the family to sell the properties to discharge the family loans. The learned counsel further submitted that Exs.B3, B4, B29, B31 and B35 to 37 would prove the discharge of various loans mentioned in the sale deeds executed in favour of the respondents 6 to 8, and therefore, the sales are binding on the appellant, as they were for the family necessities and that was rightly considered by the Trial Court and those properties were excluded by the Trial Court. 15. The learned counsel for the respondents 2, 6 to 8 also submitted that the Trial Court has also rightly held that the appellant was not entitled to claim any share in respect of half share in items 22 and 23, as the same was purchased in the name of the second respondent. It is his further submission that when a property was purchased in the name of the junior member of the family, it is presumed that it was his property, unless, the person questioning the same was able to prove that those properties also belonged to the joint family. In the case on hand, the second respondent purchased half share in items 22 and 23 and considering the same, the Trial Court held that the appellant/plaintiff is not entitled to claim any share in respect of those properties. The learned counsel further submitted that the appellant also admitted in evidence in O.S.No.1310 of 1984 that the family incurred Rs.75,000/-for laying the borewell and considering the said admission, the Trial Court held that the appellant/plaintiff is liable to share the family expenses and some of the items were repeated in the suit schedule properties and 'B' schedule properties are not available for partition. Therefore, there is no need to interfere with the well considered judgment and decree rendered by the Trial Court and the learned counsel prayed that the same may be confirmed. 16. Based on the submissions of the learned counsel appearing for both the parties, the following points arise for consideration in this Appeal:- i) Whether the sales in favour of the respondents 6 to 8 were for family necessity and were binding on the family? ii) Whether the purchase of half share in items 22 and 23 in the name of the second respondent was for the sake of joint family or those properties were the separate properties of the second respondent? iii) Whether the joint family incurred expenses of Rs.80,000/-and the appellant is liable to share expenses to the extent of his claim of partition in the properties? and iv) Whether items 7, 8 and 11 were repeated as items 21, 30 and 31 in the suit 'A' schedule properties? 17. The respondents 6 to 8 purchased properties under Exs.B27, 28, 33 and 34. The sixth respondent purchased item 19 under Ex.B27, the seventh respondent purchased item 20 under Ex.B28 and the eighth respondent purchased items 30 and 37 under Exs.B.33 and 34. It is seen from Ex.B.27 that the properties were sold by the first respondent to the sixth respondent to discharge the promissory note executed in favour of Deveraj, Mangathammal and under Ex.B.28, the property was sold by the first respondent in favour of the seventh respondent to discharge the promissory notes executed in favour of Srinivasa Gounder and Vallaikanni Ammal. The defendants 6 and 7 examined themselves as D.Ws.6 and 7 and marked Exs.B.2, B3, viz., the promissory notes, executed in favour of Deveraj and Mangathammal and also marked Exs.B.29 and B.31, discharging the promissory notes in favour of Srinivasa Gounder and Vallaikanni Ammal. Similarly, under Exs.B34, the property was sold to discharge the loan payable to Munusamy Pillai and the discharged promissory notes in favour of the said Munusamy Pillai were marked as Exs.B35 to 37. 18. Further, it is seen from Exs.B 2, 3, 35 to 37 that the promissory notes were executed by Madurai Gounder/first defendant along with the plaintiff and the defendants 2 and 5. 18. Further, it is seen from Exs.B 2, 3, 35 to 37 that the promissory notes were executed by Madurai Gounder/first defendant along with the plaintiff and the defendants 2 and 5. Therefore, the appellant cannot now contend that there was no necessity for the family to sell those properties covered under Exs.B.27, 28, 33 and 34 and there was no necessity for the family to incur debts. As stated supra, Exs.B2, 3, 35 to 37, were the promissory notes executed by the father and his sons/the plaintiff and the defendants 1 to 5 and to discharge the loans, the properties were sold to the respondents 6 to 8. Further, under Exs.B.23, the properties were sold for the purpose of purchasing property for the joint family and considering all these aspects, the Trial Court has rightly held that the sales by the first respondent in favour of the respondents 6 to 8 in respect of items 19, 20, 30 and 37 under Exs.B.27, 28, 33 and 34 were for the family necessity and those sale deeds were valid and binding on the appellant and the appellant cannot question the same and he was also not entitled to claim any share in respect of those properties. Hence, Point No.1 for consideration in this Appeal is answered against the appellant. 19. Insofar as half share in items 22 and 23 are concerned, they were purchased under Exs.B25 in the name of the second respondent. Admittedly, the second respondent was not having any income at that relevant point of time, when the purchase was made in his name and he also admitted the same while deposing evidence. According to the second respondent, he purchased the properties covered under Ex.B.25, by selling his wife's jewels and also from the money advanced by his father-in-law. But, it is seen from the evidence of D.W.5/second respondent that he got married, in the year, 1978 and Ex.B.25 is dated 6.3.1978. There is no other evidence available to show whether the marriage had taken place prior to Ex.B.25 or after it. But, it is seen from the evidence of D.W.5/second respondent that he got married, in the year, 1978 and Ex.B.25 is dated 6.3.1978. There is no other evidence available to show whether the marriage had taken place prior to Ex.B.25 or after it. Even assuming without admitting that the marriage had taken place prior to Ex.B.25, it is highly improbable for the father-in-law to advance money to help the son-in-law for purchasing properties in the name of the son-in-law, that too, immediately after the marriage, having regard to the conduct of the father-in-law, as D.W.5/second defendant admitted in evidence that he and his father/first defendant borrowed money from his father-in-law and for the said purpose, his father-in-law obtained promissory note from them. Moreover, no women would agree to part with her jewels, immediately after her marriage and no father-in-law would also agree for that proposal. 20. It is also admitted by D.W.5/second respondent that the property comprised in S.No.545/16, having an extent of one acre 28 > cents was purchased in his name and that was sold for the joint family purpose. Therefore, when the property, purchased in the name of the second respondent was sold for joint family necessities and the second respondent was not having any independent source of income and the joint family possessed of various items of properties, it is to be presumed that the property purchased in the name of the second respondent also belonged to the joint family, as the second respondent failed to prove that the consideration for purchasing the property in his name was provided by his father-in-law and from and out of the sale of the jewelry belonged to his wife. 21. 21. It is no doubt true that when properties were purchased in the name of the junior member of the family, it is to be presumed that those properties are the separate properties of the junior member, but, at the same time, when the joint family was possessed of properties and the junior member of the family was not having any independent income for the purchase of properties in his name and some properties were purchased in the name of the junior member from and out of the joint family income, the onus is on the junior member to prove that the property was purchased from and out of the separate income earned by him or from the income he got from some other source. In this case, the second respondent failed to discharge his burden and without appreciating all these aspects, the Trial Court, merely believed his evidence and held that the appellant was not entitled to claim any share in respect of items 22 and 23 of the properties purchased in the name of the second respondent. 22. According to me, the findings of the Trial Court with regard to Issue No.vi) that the properties purchased under Ex.B.25 were separate properties of the second respondent was not correct and the same is liable to be set aside and accordingly, the same is set aside. Therefore, Point No.ii) is answered in favour of the appellant and I hold that half share in respect of items 22 and 23 purchased under Ex.B.25, in the name of the second respondent are also liable to be partitioned and the appellant/plaintiff is entitled to 1/6 share in respect of those properties. The appellant/plaintiff admitted in evidence in O.S.No.1310 of 1984 that the family incurred Rs.75,000/-for laying borewell, and having regard to the admission made by the appellant/plaintiff, the Trial Court has rightly held that the appellant/plaintiff is liable to share the expenses incurred by the family and I do not find any infirmity in the said findings. Hence, Point No.iii) is answered against the appellant. 23. Hence, Point No.iii) is answered against the appellant. 23. As regards the deletion of items 21, 30 and 31 from the 'A' schedule property by the Trial Court on the ground that those items were already mentioned in the suit schedule properties as items 7, 8 and 11 is concerned, I am of the opinion that the Trial Court has committed serious error in deleting those items, as the boundaries of those properties differ, thought its survey numbers and extents are same. Therefore, those items are also liable for partition and Point No.iv) is answered in favour of the appellant. Therefore, I hold that the appellant is entitled to claim 1/6 share in respect of half share of items 22 and 23 of 'A' schedule property, purchased in the name of the second respondent under Ex.B.25 and the appellant is also entitled to claim 1/6 share in items 21, 30 and 31 of 'A' schedule property, as they are same properties, mentioned as items 7, 8 and 11. In respect of the properties sold to the respondents 6 to 8, viz., the properties in items 19, 20, 33 and 34 are concerned, the findings of the Trial Court are confirmed and the appellant is not entitled to claim any share in respect of those properties. 24. In the result, the Appeal is partly allowed, as indicated above and the judgment and decree of the Trial Court is modified to that extent. No costs.