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2014 DIGILAW 189 (MAD)

Anjugam v. K. Ramasamy Iyer

2014-01-28

R.S.RAMANATHAN

body2014
JUDGMENT 1. The plaintiffs in O.S.No.311 of 1994 on the file of the Principal Subordinate Judge, Nagapattinam, are the appellants. The plaintiffs/appellants filed the suit for partition and the suit was dismissed and aggrieved by the same, this appeal is filed. 2. The facts of the plaintiffs' case is as follows:- The first plaintiff is the wife and the second plaintiff is her husband. Along with their close relatives, they were running a theatre in the name and style of "Muthumariamman Talkies" at Kilvelur on a partnership basis. Due to financial constraints, the other partners relinquished their share in favour of the first plaintiff and thereafter, ultimately, the first plaintiff and the second defendant were running the partnership firm and the first plaintiff was managing the firm on behalf of the other partner. The second defendant is the younger brother of the second plaintiff. The partnership firm had borrowed money from the third defendant and therefore, the property was brought to sale and one Mr.Elamaran, an advocate was the successful bidder in the Court auction and that was challenged by the first defendant before the High Court. The first defendant was the classmate of the second plaintiff and he volunteered to help the plaintiffs and the second defendant, and as per the agreement entered into between the first defendant, first plaintiff and the second defendant, the second defendant must relinquish his share from the partnership firm and the firm shall be run by the first plaintiff and the first defendant and they shall share the profit and loss equally and the first defendant also agreed to discharge the loan amount payable by the firm. Thereafter, the theatre was purchased from Elamaran, the Court auction purchaser, by the first defendant in his name and the Civil Revision Petition challenging the Court auction sale filed before the High Court was also withdrawn. Even after the purchase of the theatre in the name of the first defendant, it was agreed between the second plaintiff and the first defendant that the sale deed shall be retained by the first defendant and the second plaintiff shall run the theatre on behalf of the first defendant though the licence stands in the name of the first defendant. The second plaintiff was looking after the management of the theatre and now, the first defendant wanted to wriggle out from the oral understanding and wanted to claim absolute ownership to the theatre. The first defendant also filed O.S.No.234 of 1994 on the file of the District Munsif Court, Nagapattinam, against the second plaintiff for injunction restraining the second plaintiff from interfering with his possession and management of the theatre. Since the theatre stands in the name of the first defendant, and the first plaintiff is having half share in the theatre, using his influence, the first defendant obtained licence for the theatre in his name and that will not confer any right on the first defendant. The first defendant has paid only the decretal amount and other dues were not paid and therefore, the third defendant bank was impleaded as one of the parties and the second plaintiff was helping the first plaintiff in managing the affairs of the theatre. Therefore, the first plaintiff was also impleaded. The contention of the first defendant that there was no partnership between him and the first plaintiff is not correct and the sale deed in favour of the first defendant is sham and nominal document and the first defendant cannot claim any right under the sale deed and therefore, the suit was filed for partition. 3. The first defendant filed a statement stating that pursuant to the suit filed by the third defendant before the Subordinate Court, Nagapattinam, the theatre was brought to sale and one Elamaran, an Advocate, bought the theatre in Court auction and from him, the first defendant purchased the theatre on 3.8.1988. Therefore, the first defendant is the absolute owner of the property. The first defendant also denied the allegation that an agreement was entered into between the first plaintiff and the first defendant on 24.10.1987, by which the first defendant would be running the theatre on behalf of the first plaintiff. The first plaintiff has no right over the theatre and the sale deed in favour of the first defendant is not a sham and nominal document. The defendants 2 and 3 are not necessary parties and the second plaintiff is also not a necessary party. The first plaintiff cannot claim any right over the property. The first plaintiff has no right over the theatre and the sale deed in favour of the first defendant is not a sham and nominal document. The defendants 2 and 3 are not necessary parties and the second plaintiff is also not a necessary party. The first plaintiff cannot claim any right over the property. The first defendant also filed O.S.No.234 of 1994 on the file of the District Munsif Court, Nagapattinam, for injunction and no such pleading was taken in that suit by the plaintiffs and therefore, the plaintiffs are not entitled to any relief. The Court fee paid is also not correct and the suit is liable to be dismissed. 4. The third defendant filed a written statement stating that the Bank of Thanjavur granted loan to Marimuthu Talkies and a sum of Rs.1,75,000/- was due and payable to the Bank. A suit was filed by the Bank against the theatre and after getting decree, the theatre was brought to sale in execution of the decree and in the Court auction, the theatre was sold to one Elamaran and even after Court auction, the partnership firm owes money to the Bank of Thanjavur, lender, which, subsequently, merged with the third defendant and therefore, the third defendant is a necessary party. 5. On the basis of the above pleadings, the following issues were framed:- i. Whether the first plaintiff is entitled to half share in the suit property? ii. Whether the second plaintiff is an unnecessary party? iii. Whether any agreement on 24.10.1987 came into existence with regard to the management of the theatre? iv. To what relief, the plaintiffs are entitled to? 6. On the side of the plaintiffs, 3 witnesses were examined and 20 documents were marked. On the side of the defendants, first defendant examined himself as DW.1 and marked 8 documents and PW.3 marked Ex.P.1. 7. The Trial Court answered Issue No.2 against the plaintiffs holding that the second plaintiff is neither a proper nor a necessary party. 8. The Trial Court tried issues 1 and 3 together. On the side of the defendants, first defendant examined himself as DW.1 and marked 8 documents and PW.3 marked Ex.P.1. 7. The Trial Court answered Issue No.2 against the plaintiffs holding that the second plaintiff is neither a proper nor a necessary party. 8. The Trial Court tried issues 1 and 3 together. After going through the documents and evidence, the Trial Court held that the first defendant purchased the theatre under Ex.B.1 from Elamaran and the first defendant was managing the theatre and the second plaintiff was only assisting him and as per the Agreement dated 24.10.1987, the first defendant got transferred all the interest of the second defendant in the partnership firm. Thereby, the first defendant became absolute proprietor and the first plaintiff has no right over the property. Thus, the Trial Court answered Issues 1 and 3 against the plaintiffs. In the result, the suit was dismissed. 9. The learned counsel for the appellants submitted that the trial Court failed to appreciate Ex.A.1 in a proper perspective and Ex.A.1 is an agreement under which the share of the second defendant was purchased by the first defendant and the first plaintiff did not sell her share and it is also specifically stated in Ex.A.1 that the first defendant has to pay a sum of Rs.80,000/- to the second defendant and the first plaintiff shall continue as the partner having half share and therefore, the first plaintiff proved that she is entitled to half share in the property and that was not properly appreciated by the Trial Court. Further, the learned counsel further submitted that the Trial Court has not properly appreciated the evidence of PW.3, Mr.Pappa Subramanian, Ex-MLA, and Exhibit X-1 Letter dated 22.11.1993 written by the first defendant to PW.3 wherein also, the first defendant agreed to abide by the decision taken by PW.3 with regard to the ownership of the theatre. The learned counsel for the appellants further submitted that the Trial Court also failed to appreciate Ex.A.7 letter written by the first defendant on 2.8.1992 to the second plaintiff wherein also, he mentioned about the theatre and if the first plaintiff had no right over the theatre there was no necessity for the first defendant to write such a letter to the second plaintiff. He also submitted that Ex.A.6 letter was also not properly appreciated by the Court below. He also submitted that Ex.A.6 letter was also not properly appreciated by the Court below. In Ex.A.6, the first plaintiff accepted the payment of Rs.8,250/- to the second plaintiff as against Rs.11,000/- due to him upto January, 1992 and that would also prove that the partnership continued between the first plaintiff and the first defendant and these aspects were not properly appreciated by the Court below. The learned counsel, therefore, submitted that the Judgment and decree of the Trial Court is liable to be set aside. 10. Mr.Kalyanaraman, learned counsel for the third respondent submitted that Exs.A.6, A.7 and the evidence of PW.3 were properly appreciated by the Court below. Even though Exs.A.6 and A.7 contain some indication regarding the theatre, having regard to Ex.B.1, sale of the theatre in favour of the first defendant by the Court auction purchaser, in the absence of any agreement between the first plaintiff and the first defendant regarding the management of the theatre, the first plaintiff cannot claim any right over the theatre. The learned counsel also submitted that Ex.A.1 will not confer any right on the plaintiffs and admittedly Ex.A.1 is dated 24.10.1987 and the first defendant purchased the theatre under Ex.B.1 dated 3.8.1988. It is also admitted that the first defendant initially helped the plaintiffs to manage the theatre. After the purchase of the theatre from the Court auction purchaser, by the first defendant, the first defendant was managing the theatre on his own and he also filed a suit in O.S.No.234 of 1994 on the file of the District Munsif Court, Nagapattinam, and got injunction order and the licence for theatre was also transferred in the name of the first defendant and therefore, the first plaintiff cannot claim any right over the property and that was properly appreciated by the Trial Court and thus, the appeal has to be dismissed. 11. On the basis of the above submissions, the following points for consideration arise in this appeal:- i. whether the first plaintiff continues to be the partner of the firm even after the sale of the theatre in the Court auction conducted pursuant to the decree obtained by the third defendant? ii. Whether the first defendant is the absolute owner of the theatre? 12. It is admitted that, originally, Muthumariamman Talkies was run by partners in which the first plaintiff, the second defendant and others were partners. ii. Whether the first defendant is the absolute owner of the theatre? 12. It is admitted that, originally, Muthumariamman Talkies was run by partners in which the first plaintiff, the second defendant and others were partners. It is also admitted that partnership firm faced financial crisis and the firm was not able to repay the loan amount to the third defendant. The third defendant filed a suit for recovery of the amount and pursuant to the decree, theatre was brought to sale in the Court auction and one Elamaran purchased the theatre. Therefore, once the partnership property was brought to sale and was purchased by one Elamaran, he became the absolute owner of the theatre and even assuming that the first plaintiff was one of the partners, it will not give any right over the theatre. It is also admitted that the first defendant purchased the theatre from the Court auction purchaser Mr.Elamaran as evidenced by Ex.B.1. It is the specific case of the plaintiffs that the sale was a sham and nominal one and the first defendant got the sale deed in his favour only to help the plaintiffs and he got the licence in his favour without the knowledge of the plaintiffs. Except the oral allegations made in the plaint and in the evidence, no acceptable evidence has been produced by the plaintiffs to substantiate their case that the sale in favour of the first defendant was a sham and nominal one. The learned counsel for the appellants strongly relied upon Exs.A.1, A.6, A.7 and contended that as per Ex.A.1, the first defendant agreed to purchase the share of the second defendant and agreed to run the theatre in partnership with the first plaintiff and that would also prove that the partnership continued between the first plaintiff and the first defendant. As per Ex.A.6, the first defendant stated that Mr.Kannan has only paid a sum of Rs.8,250/- upto the end of January, 1992 and requested the second plaintiff to talk to Kannan to pay the differential amount to the second plaintiff. Similarly under Ex.A.7, the first defendant informed the second plaintiff that he would meet him on 6.9.1992 with regard to the sale of the theatre. Similarly under Ex.A.7, the first defendant informed the second plaintiff that he would meet him on 6.9.1992 with regard to the sale of the theatre. This was taken by the learned counsel for the appellants to contend that these documents would prove that the partnership deed continued between the first plaintiff and the first defendant and if there had been no partnership between them, there was no necessity for the first defendant to write such a letter. The learned counsel for the appellants relied upon the evidence of PW.3 and Ex.A.1 marked through him. 13. I am unable to accept the contention of the learned counsel for the appellants. In this case, as rightly submitted by the learned counsel for the respondents that Ex.A.1 is dated 24.10.19087 and any agreement entered into between the first plaintiff and the second defendant prior to the purchase of the theatre by the first defendant under Ex.B.1 will not have any effect. It is the specific case of the plaintiffs that after the sale in favour of the first defendant, there was an agreement between the plaintiffs and the first defendant by which the first defendant agreed to run the theatre in partnership with the first plaintiff. Except oral allegation, no document was produced to substantiate the same and Exs.A.6 and A.7 will not prove that the theatre was run by a partnership firm by the first defendant with the first plaintiff. Even though in Exs.A.6 and A.7 some allegations are stated to the effect that the first defendant also agreed to meet the second plaintiff with regard to the sale of the theatre, it cannot be held that, by reason of Exs.A.6 and A.7, a partnership can be visualised between the first plaintiff and the first defendant and therefore, the first plaintiff is entitled to half share in the property. Admittedly, the licence for the theatre is in the name of the first defendant and no documents were produced by the plaintiffs to prove that they were in the management of the theatre along with the first defendant. Admittedly, the licence for the theatre is in the name of the first defendant and no documents were produced by the plaintiffs to prove that they were in the management of the theatre along with the first defendant. It is also admitted that the first defendant was the classmate of the second plaintiff and he also offered to help the plaintiffs to come out from the financial problems and considering the relationship between the parties, the first defendant might have agreed to help the second plaintiff regarding the sale of the property as evidenced by Ex.A.7 and from Ex.A.6 one cannot come to the conclusion that the amount was paid towards the first plaintiff's share in the partnership business. Further, having pleaded that there was an agreement between the parties after the sale of the theatre in favour of the first defendant, the plaintiffs are bound to prove the same and in the absence of any document to prove that there was an agreement between the plaintiffs and the first defendant regarding the joint management of the theatre, the plaintiffs cannot claim any right over the theatre. 14. All these aspects were considered by the trial Court in detail and as a matter of fact, the Trial Court analyzed the evidence of PW.3, Exhibit X.1 produced by PW.3, Exs.A6 and A.7 and rightly came to the conclusion that the plaintiffs cannot claim any right over the theatre and therefore, the plaintiffs are not entitled to the relief of partition and dismissed the suit. I am in complete agreement with the findings of the Trial Court and the points for consideration are also answered against the appellants. 15. In the result, the Judgment and decree of the Trial Court are confirmed and the Appeal is dismissed. No order as to costs.