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2016 DIGILAW 2993 (MAD)

P. Ponnthai v. P. Alexander

2016-08-24

PUSHPA SATHYANARAYANA

body2016
JUDGMENT : The suit is filed for partition of plaint “A” and “B” Schedule properties into 1/3rd share each to the plaintiffs and the first defendant and for accounts of the rental income from the plaint item 1. 2. The first plaintiff is the widow of one Late I. Ponraj. The second plaintiff and the first defendant are the sons of the first plaintiff and Ponraj. The plaintiffs' case is that the first plaintiff is entitled to 1/3rd share and the remaining 2/3rd share is to be shared by the second plaintiff and the first defendant equally. The plaint “A” Schedule property comprises of a house property in Chetpet, Chennai and another house property bearing Door No.84, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai. The plaint “B” Schedule properties are the shares held by Ponraj in Narasimha Salt Industries Private Limited and Annai Salt Manufacturing Company Private Limited. According to the plaintiffs, the said Late Ponraj borrowed money from Andhra Bank, Chetpet, for the purpose of expanding the business. The plaint “A” Schedule properties were mortgaged to the Andhra Bank, Chetpet. After the death of Ponraj, there was an outstanding of Rs.38,00,000/- to the Bank. 3. It is the case of the plaintiffs that of the sums borrowed, the first defendant also had utilised for his business, namely, Alexander Agencies and the remaining was used by Late Ponraj. The bank was pleased to offer a one time settlement permitting the borrower to settle the same at Rs.29,00,000/-. Therefore, the plaintiffs and the first defendant jointly decided to sell item 2 of plaint “A” Schedule property at Nerkundram to one Sarojini Varadarajan. As per the same, the said Sarojini Varadarajan paid a sum of Rs.25,50,000/- to Andhra Bank directly. As agreed, the plaintiffs along with the first defendant had to execute the sale deed in favour of Sarojini Varadarajan. However, the first defendant refused to cooperate with the plaintiffs, for sale of the property. Therefore, the first plaintiff had to execute a sale deed of the house standing in her name at Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai - 600 017. The said Sarojini Varadarajan, the purchaser, also had promised the first plaintiff to exchange item 2 of plaint “A” Schedule property for the one purchased by her, within a period of one year. The said Sarojini Varadarajan, the purchaser, also had promised the first plaintiff to exchange item 2 of plaint “A” Schedule property for the one purchased by her, within a period of one year. As the first defendant refused to cooperate in discharging the liability towards the Bank, the plaintiffs had to borrow a sum of Rs.3,50,000/- to pay the balance amount due to the Andhra Bank. Thus, the plaintiffs claimed that the entire liability towards Andhra Bank was settled by them as per the one time settlement offer. 4. The difficulty now is the Bank though had received the entire outstanding is refusing to part with the original title deeds of plaint “A” Schedule property, since the first defendant is not willing to sign the necessary documents, for the release of title deeds. Hence, the Bank is also made as a party to the suit. The defendants 2 and 3 are the tenants inducted by the first defendant in item 1 of plaint “A” Schedule property and he is collecting rent from them. Therefore, the defendants 1 to 3 are liable to account for the rents from plaint item 1 of “A” Schedule property. It is also stated that there were other creditors besides Andhra Bank, from whom the said Late Ponraj had borrowed money. In order to settle the bank, the first defendant and the plaintiffs had entered into an oral agreement with Sarojini Varadarajan to sell plaint 2nd item of the property. As the first defendant subsequently refused to execute the sale deed, the first plaintiff was forced to convey her house property at Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai. The share of the plaintiffs in discharging the debts borrowed by Late Ponraj is also mentioned in the plaint. 5. According to the second plaintiff, the entire liabilities left by the father was discharged only by him. The plaintiffs further submit that the plaintiffs and the first defendant are jointly entitled to the plaint “A” and “B” Schedule properties, as they are jointly liable to pay the debts also. As the first defendant refused to cooperate in executing the sale deed, with respect to Door No.84, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai, the first plaintiff sold the property, bearing Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai, in favour of Sarojini Varadarajan. As the first defendant refused to cooperate in executing the sale deed, with respect to Door No.84, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai, the first plaintiff sold the property, bearing Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai, in favour of Sarojini Varadarajan. In view of the above facts, the plaintiffs claimed partition of 1/3rd share in each of the suit schedule properties. 6. Denying the facts supporting the cause of action in the plaint, the first defendant had filed his written statement. While generally alleging that the suit is bad for non-joinder of necessary parties and for partial partition, the first defendant specifically had stated that there was no partition regarding the family properties till date. Besides “A” Schedule property, the said Ponraj had also purchased a plot No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai, in the name the first plaintiff and also had purchased plot No.86, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, which is a vacant site. The first defendant denied that “B” Schedule properties are the movable properties available for partition. Late Ponraj and the second plaintiff along with the first defendant were partners in Narasimha Salt Industries Private Limited and after the death of Ponraj, the first plaintiff and the first defendant were the Directors of the said company, which belongs to the family of Late Ponraj. 7. Similarly, Annai Salt Manufacturing Company Limited was also run by Late Ponraj and the second plaintiff and the first defendant and after the death of Ponraj, the second plaintiff and the first defendants are the Directors of the same. The first defendant also pointed out that there is an extent of 56.58 acres of salt field, in which, the second plaintiff and the first defendant had got equal shares. 8. It is the further contention of the first defendant that out of the joint funds of the family, Late Ponraj had purchased lands, in the name of the first plaintiff, which is plot no.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai. The first defendant also had stated that he had contributed a sum of Rs.1,31,200/- in purchasing the property on 11.09.1990. The first plaintiff, being the mother, who was not capable of earning independent income, could not have purchased the property in her name. Merely because the property stood in the name of the first plaintiff, she cannot claim ownership. The first defendant also had stated that he had contributed a sum of Rs.1,31,200/- in purchasing the property on 11.09.1990. The first plaintiff, being the mother, who was not capable of earning independent income, could not have purchased the property in her name. Merely because the property stood in the name of the first plaintiff, she cannot claim ownership. In fact, the borrowal from Andhra Bank is said to be for the benefit of the family business and not for any personal reasons. 9. The first defendant also denied the allegation that the borrowal was utilised by him for his independent business, namely Alexander Agencies. The first defendant admitted the fact that one Mrs.Sarojini Varadarajan paid a sum of Rs.25,50,000/- to Andhra Bank, in discharge of the liability. The allegation of the plaintiffs that originally it was intended to sell only Door No.84, Pillaiyar Koil Street to Sarojini Varadarajan and as the first defendant refused to cooperate, plot No.85, Pillaiyar Koil Street was sold. The other allegations set out in the plaint are also totally denied by the first defendant. According to the first defendant, the plaintiffs and the first defendant are equally entitled for share in the family property as well as for the family debts. 10. Based on the above facts, this Court had framed the following issues for consideration:- “1. Whether the plaintiffs are entitled to 1/3rd share in the suit A and B Schedule of properties? 2. Whether the plaintiffs are entitled to get rendition of accounts in respect of the rental income of the plaint schedule property? 3. Whether the first defendant is entitled to the relief sought for based on the counter claim on payment of necessary court fee? 4. To what other reliefs, the parties are entitled? 11. The second and third defendants are the tenants and the fourth defendant is the Bank. The defendants 2 and 4 were set exparte on 17.07.2009 and the third defendant was set exparte on 03.03.2016. Hence, only the first defendant is represented by his counsel. Though the first defendant had filed written statement, he had not participated in the trial. Despite giving several opportunities, the first defendant did not cross examine the plaintiff and he had also not subjected himself for examination. Therefore, in the trial only, the first plaintiff was examined as P.W.1, who had marked Exs.P1 to P6. ISSUE NO.1 :- 12. Though the first defendant had filed written statement, he had not participated in the trial. Despite giving several opportunities, the first defendant did not cross examine the plaintiff and he had also not subjected himself for examination. Therefore, in the trial only, the first plaintiff was examined as P.W.1, who had marked Exs.P1 to P6. ISSUE NO.1 :- 12. It is relevant to note that the plaintiffs also had filed C.S.No.107 of 2009 on the file of this Court, for the relief of specific performance, directing the first defendant to execute the sale deed along with the plaintiffs in favour of the second defendant therein, namely Sarojini Varadarajan, conveying the property at Door No.84, Pillaiyar Koil Street, Golden George Nagar, Nerkundram, Chennai. As already the plot at Door No.85, Pillaiyar Koil Street was sold in favour of the Sarojini Varadarajan, the said suit was dismissed as withdrawn. 13. The suit is instituted by the wife of deceased Ponraj as first plaintiff and his children as second plaintiff and first defendant. The plaintiffs have claimed 1/3rd share each in the properties left by Late Ponraj. Though the first defendant had filed written statement alleging from many factors, it is admitted that there was no partition regarding the family properties till date. It is also admitted that Door Nos.84 and 85, Pillaiyar Koil Street, were purchased out of the joint family funds. The first defendant also had stated that “B” Schedule property - shares were all belonging to the family business, namely (i) Narasimha Salt Industries Private Limited; and (ii) Annai Salt Manufacturing Company Limited. Though originally the second plaintiff and the first defendant were Partners along with their father, after the death of Ponraj, the second plaintiff and the first defendant have been the Directors of the said companies. Therefore, they are entitled to equal shares in all the profits and losses in the salt fields. Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram was sold by the first plaintiff in favour of Sarojini Varadarajan, in order to discharge the loan taken by Ponraj from Andhra Bank. The first defendant denied the fact that the said property was belonging to the first plaintiff, the mother. 14. Door No.85, Pillaiyar Koil Street, Golden George Nagar, Nerkundram was sold by the first plaintiff in favour of Sarojini Varadarajan, in order to discharge the loan taken by Ponraj from Andhra Bank. The first defendant denied the fact that the said property was belonging to the first plaintiff, the mother. 14. It is the contention of the first defendant that though the property had been purchased in the name of the first plaintiff, the contribution for the same had come only from the joint family funds and she was only a name lender. Similarly, it is stated by the first defendant that Plot No.86, Pillaiyar Koil Street, Golden George Nagar, Nerkundram was also purchased by Late Ponraj only, but in the name of the second plaintiff and hence, the plaintiffs cannot claim any absolute right in the property. Though the said defence has been taken, there is no steps taken to include Door No.86, Pillaiyar Koil Street, Golden George Nagar, Nerkundram in the suit. There is also no evidence to show that the second plaintiff was only a name lender in purchasing the property at Door No.86. In the absence of any evidence that the funds for the purchase of property at Door No.86 flew only from the joint family, the presumption is that the second plaintiff is the owner of the property and the same cannot be partitioned. Though the first defendant had stated that the plaintiffs are also entitled to a share in the business Alexander Agencies, the said Agencies is not added in the suit and there is also no claim by the plaintiffs over the same. So far as the plaint “A” Schedule property is concerned, the first defendant had admitted in his written statement, para 6 that “....admittedly even prior to as well as after the death of Late Mr.I.Ponraj, the plaintiffs as well as the defendants are leading as a one family. There is no partition regarding the family property until date.” 15. Based on the said admission, it can be presumed that the plaintiffs along with the first defendant are entitled to 1/3rd share each in the same. Admittedly, in the plaint “B” Schedule properties, it is stated by the first defendant that the second plaintiff and the first defendant are Directors after the death of the father. But there is no iota of evidence to substantiate the same. Admittedly, in the plaint “B” Schedule properties, it is stated by the first defendant that the second plaintiff and the first defendant are Directors after the death of the father. But there is no iota of evidence to substantiate the same. Hence, it can be easily interfered that the first plaintiff is also entitled to 1/3rd share in the said property. It is worthwhile to note that the plaintiffs have also not produced any document to show the ownership of “A” Schedule properties, excepting the admission of the first defendant. Therefore, the plaintiffs are entitled to 1/3rd share in the suit “A” and “B” Schedule properties. Issue No.1 is answered accordingly. ISSUE NO.2 :- 16. The plaintiffs though have asked for accounts in respect of the plaint schedule property, there is no evidence let in with respect to the same. Hence, issue no.2 is answered against the plaintiffs. ISSUE NO.3 :- 17. Though the first defendant had made a counterclaim demanding accounts of the rental income, there is no evidence either oral or documentary let in with respect to the same. In the absence of any evidence, the first defendant is also not entitled to for the counterclaim made without paying the necessary Court fees. Hence, issue no.3 is answered against the first defendant. 18. In the result, the suit is decreed with respect to prayer (a) only that is, partition of plaint “A” and “B” Schedule properties allotting Plaint item 2 to “A” Schedule property and 1/3rd share in plaint item 1 and 1/3rd share in “B” Schedule property to the 1st plaintiff and 1/3rd share each in item 1 of plaint “A” Schedule and 1/3rd share in Plaint “B” Schedule property to the 2nd plaintiff and the 1st defendant only. With respect to prayer (b) and (c) the suit is dismissed.