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2013 DIGILAW 3057 (MAD)

Ramesh v. Mythili

2013-08-27

R.S.RAMANATHAN

body2013
JUDGMENT 1. The seventh defendant in O.S.No.53 of 1995, on the file of the Additional Sub Court, Mayiladuthurai, is the appellant herein. 2. The plaintiffs/respondents 1 and 2 herein filed the suit for partition of their half share in the suit properties. 3. The Trial Court, vide its judgement dated 10.01.2003, partly decreed the suit by granting a preliminary decree in respect of items 10, 11 and 14, holding that the plaintiffs are entitled to half share in those items and dismissed the suit in respect of other items. 4. Aggrieved by the judgment and decree passed by the Trial Court, the appellant/seventh defendant, who purchased item 11 from the first defendant, during the pendency of the suit, filed A.S.No.17 of 2011, on the file of the District Court, Nagapattinam, insofar as the judgment is against him. The Lower Appellate Court also confirmed the judgment and decree of the Trial Court and dismissed the Appeal. Challenging the same, the present Second Appeal is filed by him. 5. The case of the plaintiffs, as seen from the plaint is that they are the children of the first defendant born through his wife Chitra. The suit properties, mentioned as items 1 to 9 are the ancestral properties in the hands of the first defendant, and, from and out of the income obtained from those properties, he purchased the remaining items of properties, viz., items 10 to 13. Therefore, all the properties are the joint family properties and the plaintiffs are not married, and hence, they are entitled to 3/4 share in the suit properties and the first defendant is entitled to 1/4 share. The plaintiffs also alleged that the first defendant developed illegal intimacy with the second defendant, and ill-treated the mother of the plaintiffs and she was driven off from the first defendant's house, and hence, the second defendant, being a illegitimate wife, cannot claim any right in the suit property. Hence, the plaintiffs filed the suit for partition of their 3/4 share in the suit properties. 6. Hence, the plaintiffs filed the suit for partition of their 3/4 share in the suit properties. 6. The first defendant filed a written statement, stating that the first item of the suit property, viz., the Mill was purchased by the first defendant's mother, from and out of her income in her own name and the Mill was assessed in the name of his mother and his mother executed a settlement deed, dated 19.03.1986, and settled the first item of suit property in favour of the first defendant. Hence, the first defendant became the absolute owner of the first item of suit property, over which, the plaintiffs cannot claim any right. The first defendant admitted that items 2 to 8 were the ancestral properties and those properties were already sold, prior to 25.3.1989, the date of commencement of the Tamil Nadu Act 1 of 1990, and therefore, the plaintiffs cannot claim any right over items 2 to 8. The first defendant further stated that items 9 and 10 were purchased from and out of the income obtained by running the Mill, viz., the suit first item, and also from his broker business, and the joint family properties, viz., items 2 to 8 were not yielding any income, and items 11 and 12 were purchased by selling the jewels belonging to the second defendant and also from the money he got from his mother and therefore, the plaintiffs cannot claim any right over those properties. 7. The seventh defendant/appellant herein purchased item 11 of the suit properties, during the pendency of the suit, and though he got himself impleaded in the suit, he did not choose to file any written statement to putforth his case. 8. The Trial Court, on the basis of the oral and documentary evidence, held that the first item of the suit properties is the separate property of the first defendant and items 2 to 9 were sold towards the discharge of the family debts. Items 10, 11 and 14 were purchased from and out of the income from the joint family properties and granted preliminary decree holding that the plaintiffs are entitled to half share in respect of items 10, 11 and 14. 9. Aggrieved by the judgment passed by the Trial Court, the present appellant filed A.S.No.17 of 2011, on the file of the District Court, Nagapattinam. 9. Aggrieved by the judgment passed by the Trial Court, the present appellant filed A.S.No.17 of 2011, on the file of the District Court, Nagapattinam. The learned District Judge too, after independently appreciating the facts of the case and evidence, held that the family members of the first defendant did not challenge the findings of the Trial Court, regarding the character of the properties, viz., items 10, 11 and 14 and therefore, the appellant, who purchased item 11 of the suit properties from the first defendant, pendente lite, cannot now contend that the properties were the self acquired properties of the first defendant. The Lower Appellate Court also held that admittedly the first defendant's family owned the joint family properties, and hence, the properties purchased as items 10, 11 and 14, were also purchased out of the joint family income and that finding was also accepted by the vendor of the appellant/first defendant and the appellant cannot challenge the same. Aggrieved by the findings of the Lower Appellate Court, the present Second Appeal is filed by the seventh defendant/appellant, as stated above. 10. The learned counsel appearing for the appellant has submitted that the Trial Court, without properly appreciating the fact that item 11 was purchased, under Ex.B10, dated 7.5.1984, erred in holding that item 11 must have been purchased from and out of the sale proceeds of items 2, 3 and 6, which were sold under Ex.B.19, dated 25.03.1985. Therefore, item 11 could not have been purchased from and out of the sale of proceeds of items 2, 3 and 6. The learned counsel further submitted that admittedly the first defendant was owning a Mill and that was held to be his separate properties, and therefore, any properties purchased by him, cannot be considered or characterized as joint family properties. Admittedly, the joint family properties, viz., items 2 to 8 were not yielding any income and therefore, item 11 must have been purchased from and out of income from item 1, and hence, item 11 must be held to be the separate property of the first defendant. Therefore, item 11 cannot be available for partition and this aspect was not properly appreciated by the Courts below. 11. Therefore, item 11 cannot be available for partition and this aspect was not properly appreciated by the Courts below. 11. The learned counsel for the appellant further submitted that, though he is a purchaser pendente lite, having regard to the admitted facts of the case, he is entitled to challenge the findings of the Trial Court and that was not properly appreciated by the Lower Appellate Court and the Lower Appellate Court dismissed the Appeal, on the ground that the appellant is only a purchaser pendente lite and he has not filed any written statement to fortify his case, and therefore, he cannot challenge the findings of the Trial Court. The learned counsel, therefore, submitted that being a purchaser pendente lite, he is entitled to take the defense of his vendor/first defendant and the vendor cannot be expected to file the Appeal, as he has already parted with the properties. Therefore, as a person interested in the property, he is entitled to challenge the findings with respect to item 11 and that was not properly appreciated by the Courts below 12. I am unable to accept the submissions of the learned counsel for the appellant. According to me, there is no questions of law, much less, any substantial question of law that arises for consideration in this Second Appeal. 13. It is admitted that the appellant purchased the property, during the pendency of the suit. The first defendant/vendor of the appellant filed written statement, stating that item 11 was purchased by selling jewels of the second defendant and also from the money given by his mother. He did not state that item 11 was purchased from the income obtained from the first item of the suit property. Admittedly, items 2 to 8 were the ancestral properties and those properties were sold to discharge the family debts. If really, the first item of the suit property was yielding income, then, the necessity for the first defendant to sell items 2 to 8 to discharge the family debts would not have arisen. Therefore, the first item of the suit properties was not generating income, as claimed by the appellant, and that was the reason for selling the joint family properties, viz., items 2 to 8 to discharge the family debts. 14. Therefore, the first item of the suit properties was not generating income, as claimed by the appellant, and that was the reason for selling the joint family properties, viz., items 2 to 8 to discharge the family debts. 14. Further, having regard to the admission of the first defendant in the written statement that item 11 was purchased by selling the jewels belonging to the second defendant and also from the money provided by his mother, burden is on him to prove the same and the first defendant did not enter into box to lead any evidence to that effect. Considering the fact that item 2 to 8 were the joint family properties and those properties were sold to discharge the family debts, both the Courts below have rightly held that item 11 also belonged to the joint family properties. Therefore, the plaintiffs are entitled to half share in respect of item 11 of the suit properties. Of course, the appellant is entitled to work out his remedy in the final decree proceedings, as he is a purchaser pendente lite from the first defendant and the first defendant is also entitled to half share in items 10, 11 and 14, but, it does not mean that he can challenge the findings given by the Courts below regarding the character of the suit properties. Hence, I do not find any infirmity in the judgments and decrees of the Courts below 15. In the result, the Second Appeal is dismissed by confirming the judgments and decrees of the Courts below. However, it is made clear that, it is open to the appellant to work out his equitable remedy during the final decree proceedings and seek for allotment of item 11 of the suit properties towards the share of the first defendant and the Trial Court is also directed to consider the same at the time of passing the final decree. No costs. Consequently, connected Miscellaneous Petition is closed.