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2014 DIGILAW 284 (MAD)

Hema Ammal v. Ganapathy Gounder

2014-02-06

R.KARUPPIAH

body2014
Judgment : 1. This second appeal is filed against the judgment and decree dated 19.06.203 made in A.S.No.6 of 2003 on the file of Additional District-cum-Fast Track Court, Tindivanam reversing the judgment and decree dated 23.02.2001 made in O.S.No.429 of 1995 on the file of District Munsif-cum-Judicial Magistrate Court, Vanur. 2. For the sake of convenience the plaintiffs in the suit are referred as appellants and the defendants in the suit are referred as respondents hereafter. 3. Heard the learned counsel appearing for the appellants and there is no representation on the side of both the respondents. 4. The appellants/plaintiffs filed the suit seeking the relief of preliminary decree for partition of 6/7 share in the suit property and for mesne profits from the first respondent. Briefly, the case of the appellants is that the suit property was originally belonged to Ramabathrachariar, now he is no more. One Lakshmiammal is his first wife and the second respondent viz., Sarojammal is his second wife. The appellants are daughters of Ramabathrachariar through his second wife. The first wife (i.e,) Lakshmiammal already filed a suit in OS.No.452 of 1973 before the District Munsif Court, Tindivanam for partition in respect of her share in the properties of her husband. In the above said suit a compromise decree was passed on 25.09.1985 and in the said compromise decree except three items, all the other properties including suit property were allotted to appellants and second respondent herein. Therefore, the appellants are entitled to 1/7 share each, totally 6/7 shares in the suit property. It is further case of the appellants is that the first respondent entered into an agreement with the second respondent in respect of 1/7share of 2nd respondent and received advance of Rs.25,000/- and executed a sale deed on 14.05.1992. But the first respondent made false averments as if the sale consideration of Rs.87,000/- has been already paid and the entire suit property was sold. The first respondent without explaining the contents of the sale deed to the appellants and second respondent obtained the appellants signatures as witnesses in the sale deed. On 26.06.1994 the appellants 2 to 6 issued legal notice to the first respondent and seeks partition. The first respondent without explaining the contents of the sale deed to the appellants and second respondent obtained the appellants signatures as witnesses in the sale deed. On 26.06.1994 the appellants 2 to 6 issued legal notice to the first respondent and seeks partition. In the reply notice dated 10.08.1994, the first respondent had falsely stated as if on 17.06.1988 the appellants also executed an agreement of sale for a sale consideration of Rs.61,500/- and received advance of Rs.43,000/- and later, received Rs.10,000/- as advance on 01.04.1990. The alleged sale deed executed by the second respondent on 14.05.1992 in favour of the first respondent is fraudulent document, therefore this suit has been filed by appellants for their share in the suit property. 5. Before the trial Court the second respondent remained exparte and the first respondent alone filed written statement. In the said written statement, it is admitted that the suit property was originally belonged to one Ramabathrachariar and also admitted that the appellants and the second respondent are legal heirs of the Ramabathrachariar. It is also admitted that the previous suit filed by the first wife ended in to a compromise and allotted the properties as stated in the plaint. According to the first respondent, the appellants and second respondent entered into an agreement of sale with the first appellant on 17.06.1988 and agreed to sell the suit property for sum of Rs.61,500/- and executed a sale agreement and received sum of Rs.43,000/- as advance, by 3rd & 5th appellants. Further the appellants had given consent that the 2nd respondent alone executed a sale deed and the appellants have not objected the sale. On 01.04.1990, the first respondent paid a sum of Rs.10,000/- and the second respondent had acknowledged in the agreement itself in the presence of appellants 2 and 3. In the above said agreement of sale appellants 3 and 5 affixed their signatures as witnesses for receipt of the said amount. The appellants and the second respondent delayed the execution of the sale deed by demanding more amount. Therefore, the first respondent agreed to pay a further sum of Rs.25,500/- in addition to the amount of Rs.61,500/- originally agreed as sale consideration, totally Rs.87,000/-. Accordingly, the first respondent has paid the entire sale consideration and sale deed was also executed on 14.05.1992 for the sale consideration of Rs.87,000/- by second respondent with consent of the appellants. Therefore, the first respondent agreed to pay a further sum of Rs.25,500/- in addition to the amount of Rs.61,500/- originally agreed as sale consideration, totally Rs.87,000/-. Accordingly, the first respondent has paid the entire sale consideration and sale deed was also executed on 14.05.1992 for the sale consideration of Rs.87,000/- by second respondent with consent of the appellants. In the above said sale deed, the appellants had affixed their signatures as witnesses after knowing the contentions. As per the above said sale deed, the first respondent is in possession of the suit property. The appellants are not entitled to deny the title of the first appellant. Further, the second respondent sold the other properties to the third parties and the appellants have not questioned the above said sale deeds but fraudulently questioning this sale deed alone and also the above said properties already sold are not included in this suit. According to the first respondent in the above said ground also, the suit is not maintainable and hence the appellants are not entitled to any share in the suit property or mesne profits. 6. The Trial Court, on the basis of the above said pleadings framed six issues for determination. The appellants/plaintiffs side examined two witnesses as PW1 and PW2 and marked five documents as Exs.A1 to A5. On the side of the first respondent/first defendant three witnesses were examined as DW1 to DW3 and marked three documents as Exs.B1 to B3. 7. Considering the oral and documentary evidence adduced on either side, the trial Court decreed the suit as prayed for. Aggrieved in the above said findings of the trial Court, the first respondent preferred an appeal in AS.No.6 of 2003. The first appellate Court has dismissed the first appeal only on the ground that the appellants have not filed the suit for partition for entire family properties including the properties sold to third parties and hence the suit is not maintainable on the ground of partial partition. Being aggrieved over the reversal findings of the first appellate Court, the appellants who are the plaintiffs in the suit preferred this Second Appeal before this Court. 8. Being aggrieved over the reversal findings of the first appellate Court, the appellants who are the plaintiffs in the suit preferred this Second Appeal before this Court. 8. The Second Appeal is admitted on the following substantial questions of law:- (i) Whether the lower appellate Court had wrongly found that the suit of the Appellants is not maintainable on the new issue of partial partition without affording the appellants sufficient opportunity of contesting the case on the new issue of partial partition? (ii) Whether the lower appellate Court failed to hold that the suit of appellants is one for general partition on the basis of acceptable evidence of PW2 in the trial Court? and (iii) Whether the lower appellate Court failed to hold that non-alienating co-parceners are entitled to sue the purchaser for partition of the suit property without bringing a suit for a general partition? 9. Both sides admitted that the suit property and other properties originally belonged to one Ramabathrachariar and also admitted that his first wife namely Lakshmiammal filed suit for partition in OS.No.453 of 1973 before the District Munif Court, Tindivanam and in the said suit a compromise decree was passed on 25.09.1985. As per decree the suit property including the other properties were allotted to the appellants and the second respondent herein. It is also admitted by both sides that as per the above said compromise decree passed in OS.No.452 of 1973 the appellants and the second respondent are entitled to 1/7th share each. The main contention of the appellants is that the first respondent herein obtained sale deed in respect of the entire property from the second respondent alone who is the mother of the appellants and therefore, the above said alleged agreement of sale and sale deed are not valid in law and also not binding on the appellants share in the suit property. The second respondent who is mother of the appellants remained exparte before the Courts below and the first respondent who is purchaser from the second respondent alone contesting the suit. 10. The second respondent who is mother of the appellants remained exparte before the Courts below and the first respondent who is purchaser from the second respondent alone contesting the suit. 10. The main contention of the first respondent is that the appellants 2 and 3 also signed in the agreement of sale in Ex.B1 as witnesses in respect of part payment of sale consideration and also all the appellants have signed as witnesses in the said sale deed Ex.A2/B3 executed by the second respondent in favour of the first respondent on 14.05.1992 and hence the above said sale deed is binding on the appellants share also in the suit property and therefore, the appellants are not entitled to any share in the suit property. 11. It is not in dispute that the suit property belonged to the appellants and the second respondent as per the compromise decree. It is also not in dispute that the second respondent alone executed the sale deed in favour of the first respondent. In the above said circumstances, unless the appellants are signed in the said sale deed as executor of the documents, the appellants shares are not binding. Only on the ground that the appellants also have signed as witnesses, in the above said alleged Ex.A2/B3 sale deed dated 14.05.1992 executed in favour of the first defendant by the second defendant alone is not binding the shares of the appellants. 12. The Trial Court has correctly discussed the above said legal aspects and also considered both sides oral and documentary evidence and finally passed a preliminary decree for partition of 1/7 share each to all the six appellants. The first appellate Court has dismissed the suit only on the ground that the appellants have not included the other properties which are already sold to the third parties, therefore, the suit is not maintainable. 13. The first appellate Court has dismissed the suit only on the ground that the appellants have not included the other properties which are already sold to the third parties, therefore, the suit is not maintainable. 13. The learned counsel for the appellants has relied on a decision reported in (1926) The Indian Law Reports 320 Madras Vol.I – Kandasamy Udayan V. Velayutha Udayan in which in page 327 reads as follows "The proper course for the alienee would be, as pointed out by us in 45 Mad., 440 when the alienation of a particular item of property is challenged by a member of the joint Hindu family, to bring a suit for general partition so that the suit might be tried along with the suit for setting aside the alienation and if the alienee is able to show that the alienation is binding on the whole family then he succeeds in both the suits and if the alienation is not binding on the plaintiff's share but is only binding on the alienor's share, then in the suit for general partition brought by him the Court would be in a position to consider whether the property alienated to him should be allotted to the alienor's share or not." In the instant case, the first respondent has not filed any suit for general partition by giving details of the joint family properties or the properties alleged to have been sold by second respondent. Therefore, the findings of the first appellate Court that the appellants have not filed the suit for partition for entire family properties including the properties were already sold to third parties and on that ground alone dismissed the suit is not valid in law as rightly pointed out by the learned counsel for the applicants. 14. The learned counsel appearing for appellants in another decision reported in 2009 (7) SCC 444 – Ramdas V. Sitabai and others wherein in para 21 reads as follows : "21. Therefore, what the appellant has claimed is only half-share of the said property. The said issue has been considered at length by the High Court in its impugned judgment. 14. The learned counsel appearing for appellants in another decision reported in 2009 (7) SCC 444 – Ramdas V. Sitabai and others wherein in para 21 reads as follows : "21. Therefore, what the appellant has claimed is only half-share of the said property. The said issue has been considered at length by the High Court in its impugned judgment. The High Court has recorded the statement made by the counsel appearing for Defendant 3 Ramdas (the appellant herein) that the action of the Additional District Judge in declaring that the said sale deed as null and void was not proper to the extent of the shares of plaintiff Sitabai in Gat No. 19 area admeasuring 2.56 H of Mouza Padoli. Therefore, the fact that the plaintiff Sitabai was entitled to her half-share in the aforesaid property is an admitted position and on that basis the consent decree was passed. Even otherwise, we are of the considered opinion that the appellant herein having purchased only undivided share in the aforesaid property could not have purchased, owned and claimed for more than half-share in the said property nor the appellant could have claimed possession in respect of the entire property." On a careful perusal of the settled principle of law laid down by the Hon'ble Supreme Court revealed that the purchaser of half share cannot claim possession in respect of the entire property. 15. In the instant case, the first respondent has not stated in the written statement that what are the properties and who are the persons to be impleaded in the suit for general partition. At the time of evidence also, the first respondent has not stated what are the properties available for partition at the time of filing of the suit. The Trial Court has also not framed any issues as to whether the suit is not maintainable on the ground of non-joinder of necessary parties or properties. The respondents has not taken any steps to frame such issues before trial Court. 16. The learned counsel appearing for the appellants pointed out that without any specific pleadings, details and evidence, the first Appellate Court has wrongly held that the suit is not maintainable on the ground of non-joinder of necessary parties or properties. The learned counsel further submitted that except this property, no other property is available for partition. 16. The learned counsel appearing for the appellants pointed out that without any specific pleadings, details and evidence, the first Appellate Court has wrongly held that the suit is not maintainable on the ground of non-joinder of necessary parties or properties. The learned counsel further submitted that except this property, no other property is available for partition. In view of the law laid down by the above said decision, the findings of the first Appellate Court is not correct. As already stated as per the compromise decree, the appellants are entitled to 1/7th share each in the suit property. The first respondent has not given any details about the properties and parties to be impleaded for general partition. The appellants have not executed any sale deed in favour of the first respondent in respect of their share, only they have signed as witnesses. Therefore, as rightly held by the Trial Court the appellants are entitled to 1/7 share in the suit property, but the findings of the first Appellate Court that the suit is not maintainable on the ground of non-joinder of necessary parties or properties are perverse findings and also illegal. In view of the reasons stated above answered all the substantial questions of law as against the respondent and in favour of the appellants. From the above said findings, the second appeal is to be allowed and set aside the reversal finding of the first appellate court and confirmed the decree and judgment of the trial Court. 17. In the result, the second appeal is allowed and the decree and judgment passed by the first appellate Court are set aside and confirmed the preliminary decree and judgment passed by the trial Court. No order as to costs.