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2015 DIGILAW 1041 (MAD)

G. Ramesh v. V. Kousalya

2015-02-20

R.SUBBIAH

body2015
Judgment :- 1. This application has been filed by the applicants/defendants 1 to 5, under Order XIV Rule 8 of Original Side Rules read with Order VII Rule 11 (d) of the Code of Civil Procedure, seeking an order to reject the plaint in C.S.No.175 of 2014. 2. Since the present application has been filed for rejection of the plaint filed by the respondents 1 to 3, it would be appropriate to extract the averments made in the plaint. 3. The brief averments of the plaint is as follows (i) The plaintiffs, who are the respondents 1 to 3 herein are the grand children of one late Mr. P. Vedagiri. The defendants 2 to 5 are the children of the said Vedagiri and the first defendant/first applicant is the second wife of the deceased Vedagiri. During the life time, the said Vedagiri in the year 1961, by way of sale, vide Document No.1716/1961, dated 21.09.1961 had purchased a property situated in Plot No.8, Old Door No.98, 14A, New Door No.135A, New No.82/163, consisting of one ground and 1818 sq.ft of land comprising in S.No.629, S.No.629/4, S.No.629/4 (part), Mylapore Village at Venkatachala Mudali Street (V.M. Street), Royapettah, Chennai-14, for a valuable sale consideration. (ii) The said Vedagiri had two wives. The name of the first wife is Jagadambal, who is the grandmother of the plaintiffs/respondents 1 to 3. The second wife is Mrs. Kousalya, who is the first defendant in the suit. The defendants 2 to 5 are the sons and daughter of the said Kousalya. Out of the wedlock of the P. Vedagiri and Jagadambal, a girl child was born, named as G. Kamalini, who is the mother of the plaintiffs herein. The said Jagadambal predeceased her husband, P. Vedagiri on 29.12.1958, leaving behind her husband P. Vedagiri and daughter V. Kamalini. Thereafter, the said Vedagiri had married Mrs. Kousalya, the first defendant herein to look after the child. The said Kamalini, who is the mother of the plaintiffs died on 19.06.2013, leaving behind the plaintiffs/respondents 1 to 3 as Legal heirs to succeed her estate. The defendants 2 to 5 were born out the second wedlock between P. Vedagiri and Kousalya, i.e., the first defendant. The suit A Schedule property is Hindu undivided family property, wherein the plaintiffs and the defendants 1 to 5 are joint owners. The defendants 2 to 5 were born out the second wedlock between P. Vedagiri and Kousalya, i.e., the first defendant. The suit A Schedule property is Hindu undivided family property, wherein the plaintiffs and the defendants 1 to 5 are joint owners. The plaintiffs state that the defendants 1 to 5 had mortgaged the entire schedule A properties with the 6th defendant and the details are extracted hereunder: Date S.R.O. Amount Document No. 16.04.1992 Mylapore Rs.1,00,000/- 888/1992 22.06.1998 Mylapore Rs.3,00,000/- 1309/1998 23.02.1999 Mylapore Rs.3,00,000/- 438/1999 17.10.2002 Mylapore Rs.5,00,000/- 2900/2002 22.01.2008 Mylapore Rs.5,00,000/- 146/2008 All the above said mortgages were registered in the Office of the Sub-Registrar, Mylapore. (iii) The suit schedule A property consists of ten portions, out of 10 portions, 6 portions situated in the Ground floor, 4 portions in second floor, out of which, the defendants 1 to 5 let out 6 portions to the third parties for rent. It is stated by the plaintiffs that the rent collected from the let out portion were swallowed by the defendants 1 to 5. It is stated that the entire property has been mortgaged several times by the defendants 1 to 5, without the knowledge of the plaintiffs, who have got equal right and ownership over the schedule A property. In fact, the second plaintiff is in actual physical possession of 800 square feet of building in first floor occupied and used as a ware house for his business. Since the said Vedagiri died intestate, the schedule A property was equally devolved upon his both wives with their respective children, accordingly, the plaintiffs are entitled to equal share. Hence, the suit has been filed by the plaintiffs, seeking the following reliefs: (a) to pass preliminary decree by partition and divide the schedule A and schedule B property by metes and bounds more fully described in the schedule hereunder into 6 equal shares by metes and bounds and allot one such share to the plaintiffs; (b) direct the defendants 1 to 5 to pay mesne profit to the plaintiff from the date of filing of suit; (c) for a permanent injunction restraining the defendants, agents, servants or their men from in any way interfering with the plaintiffs peaceful possession and enjoyment of schedule mentioned property by alienating or encumbering. 4. On appearance, the applicants/defendants 2 to 5 has taken out the present application, for rejection of the plaint. 4. On appearance, the applicants/defendants 2 to 5 has taken out the present application, for rejection of the plaint. The sum and substance of the affidavit is as follows: (1) The late Kamalini, mother of the respondents 1 to 3 was given in marriage to one Mr. Ganesan on 21.01.1972 and the said late P. Vedagiri, in order to perform his duties as a Father, purchased the agricultural land along with a house, admeasuring an extent of 33 cents comprised in S.No.273 of Edamichi Village, Chengalput Taluk and District (23 cents in S.No.221/7A and 10 cents in S.No.273), admeasuring a total extent of 33 cents and the same was registered in the name of his daughter, Kamalini, the mother of respondents 1 to 3 herein. The entire sale consideration for purchasing the said land in the name of Kamalini was paid by late P. Vedagiri, as neither of the parents of respondents 1 to 3 had any source of income to purchase the above said property. (ii) The mother of respondents 1 to 3, late Kamalini had never raised any claim over the suit schedule property, either during the life time of late P. Vedagiri nor after his demise on 22.11.1985. The said Kamalini had not claimed any right over the suit schedule property, as she is aware that the property, situate at Edamachi Village, Chengalpat Taluk, admeasuring an extent of 33 cents was given away to her by her father, i.e., late P. Vedagiri and also she is aware that the suit schedule property was purchased only out of the proceeds accrued out of sale of jewels of the first applicant/first defendant. Hence, at present, the respondents 1 to 3 cannot lay any claim over the suit schedule property, as they have been ousted from claiming any share over the suit schedule property. (iii) The respondents 1 to 3 have not disclosed any cause of action for filing the suit. As per the reading of the plaint, it is clear that the above sut has been filed on the basis of a legal notice, dated 18.12.2013 and not earlier than that. If the respondents 1 to 3 have any claim over the suit schedule property, it should have been made only during the life time of their mother and now they cannot lay any claim over the suit schedule property. If the respondents 1 to 3 have any claim over the suit schedule property, it should have been made only during the life time of their mother and now they cannot lay any claim over the suit schedule property. Hence, the applicants/defendants 1 to 5 have come forward with the present application, seeking rejection of the plaint in C.S.No.175 of 2014. 5. Heard the submissions of the learned counsel appearing for the applicants as well as the respondents. 6. The respondents 1 to 3/plaintiffs are the grand children of late P. Vedagiri. The mother of the respondents 1 to 3/plaintiffs was born to P. Vedagiri and his wife Jagadambal and after the demise of the said Jagadambal, late P. Vedagiri married the first applicant/first defendant and the applicants 2 to 5 are the children of the first defendant, born through P. Vedagiri. After the demise of the first wife on 29.12.1958, he married Kousalya, the first applicant/first defendant herein. The said P. Vedagiri died on 22.11.1985. During his life time, he purchased the property, situated at Chengalput in the name of his daughter, Kamalini, who is the mother of the respondents 1 to 3/plaintiffs. The suit schedule property was purchased by the said Vedagiri, out of the sale of jewels of the first applicant/first defendant. The property was purchased in the name of the mother of the respondents/plaintiffs, only on understanding that she should not claim any share in the other properties. According to the learned counsel for the applicants, that is the reason why during the life time, the mother of the respondents 1 to 3 has not made any claim in the suit schedule property, which was purchased from the sale proceeds of the jewels belonging to the first applicant/first defendant, second wife of Vedagiri. Now, after the demise of the mother of the respondents 1 to 3/plaintiffs, Kamalini, the present suit has been filed. 7. In the above background of the case, the learned counsel for the applicants has raised two grounds to reject the plaint. Now, after the demise of the mother of the respondents 1 to 3/plaintiffs, Kamalini, the present suit has been filed. 7. In the above background of the case, the learned counsel for the applicants has raised two grounds to reject the plaint. The first ground is that the property, an extent of 33 cents comprised in S.No.273 of Edamichi Village, Chengalput Taluk and District (23 cents in S.No.221/7A and 10 cents in S.No.273), admeasuring a total extent of 33 cents, was purchased by Vedagiri in the name of her Daughter, Kamalini (mother of respondents 1 to 3), only on understanding that she should not claim any share in the other properties. Therefore, accepting the same, the mother of the respondents 1 to 3 have not claimed any share in the other property till her death. Hence, after the life time of the mother, respondents 1 to 3/plaintiffs cannot lay any claim over the suit schedule property, as they have been ousted from claiming any share in the said suit schedule property. Secondly, it is the submissions of the learned counsel for the applicants that the suit is hit by limitation, since the suit has been filed after the period of 12 years from the date of demise of late Vedagiri, who died on 22.11.1985. In support of his contention, the learned counsel appearing for the applicants relied on the following decisions: 1. Vidya Devi v. Prem Prakash, (1995) 4 SCC 496 2. T.A. Yuvaraj v. T. Balakrishnan, (2010) 7 MLJ 52 3. M.M. Shaffiulla v. P.A. Mahaboob Sahib, Vol. 91 LW 296 4. Ibramsa Rowther (Minor) and others v. Sk.Meerasa Rowther and others (Madras), 1972 AIR (Madras) 467. 8. Further, the learned counsel appearing for the applicants submitted that the very factum that the suit schedule property were mortgaged only by defendants 1 to 5 with the sixth defendant would also go to show that they are only the owners of the property. Hence, he has sought for the rejection of the plaint. 9. Per contra, learned counsel appearing for the respondents/plaintiffs submitted that the ground of ouster will not serve as a ground to reject the plaint. In this regard, learned counsel further submitted that the actually the second plaintiff is in possession and he is carrying on business in the said portion. 9. Per contra, learned counsel appearing for the respondents/plaintiffs submitted that the ground of ouster will not serve as a ground to reject the plaint. In this regard, learned counsel further submitted that the actually the second plaintiff is in possession and he is carrying on business in the said portion. Even according to the averments in the plaint, the mortgage of the property was without the knowledge of the plaintiffs. With regard to the limitation, it is the submission of the learned counsel for the respondents that the ground of limitation is a mixed question of law and fact and therefore, it is not a ground for rejection of plaint and it has to be decided in the trial. In this regard, the learned counsel for the respondents relied on the following decisions: 1. Amaravathy Cranes and Structural Pvt. Ltd. V. Rajendra Raja, 2013 (2) CTC 756 2. L.P. Alaghappa Chettiar v. V. Janardhanan, 2013 (5) CTC 12 3. C. Natarajan v. Ashim Bai, (2008) 1 MLJ 1278 (SC) 4. M. Prince Manohar v. Bhima Lakshmi Narasammah, 2014 (1) CTC 160 10. But, in my considered opinion, the grounds raised by the learned counsel for the applicants is only his defence. For the purpose of rejecting the plaint, only the averments made in the plaint alone could be taken into consideration, but not the defence made in the written statement. The main allegation in the present application is that the plaintiffs had lost their title, on the ground of ouster, hence, the plaint is liable to be rejected. But in my considered opinion, whether the plaintiff had lost their title or not on the ground of ouster can be decided only after recording the evidence, by conducting trial. Hence, the ground of ouster will not serve as a ground for rejection of the plaint. 11. It is the submission of the learned counsel for the respondents/plaintiffs that the fact that suit properties were mortgaged only by the defendants to 5 would go to show that the defendants 1 to 5 are alone the owners of the property. But from the plaint, I find that it is the case of the plaintiffs that the defendants 1 to 5 had mortgaged the property, without the knowledge of the plaintiffs. But from the plaint, I find that it is the case of the plaintiffs that the defendants 1 to 5 had mortgaged the property, without the knowledge of the plaintiffs. Hence, from the submissions and counter submissions, I find that there is a dispute with regard to the mortgage of the suit property. Therefore, the disputed question involved in this case has to be decided only at the time of the suit. 12. Similarly, the ground of limitation is also a mixed question of law and fact and the same would not serve as a ground for rejection of the plaint. In fact, the learned counsel for the applicants/defendants 1 to 5 has not made out any case, within the ambit of Order 7 Rule 11 (d) of CPC. The judgments relied upon by the learned counsel appearing for the applicants/defendants 1 to 5 are also not under Order 7 rule 11 of CPC and therefore, the Judgments relied upon by the learned counsel for the applicants/defendants cannot be made applicable to the present application filed under Order 7 Rule 11 of CPC. 13. Considering the aforesaid facts and circumstances, I am of the opinion that no case has been made out, to reject the plaint at the threshold and accordingly, the application is liable to be dismissed. In the result, this application is dismissed.