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2016 DIGILAW 4120 (MAD)

Radha Gurukkal v. Swarnalatha

2016-12-08

T.RAVINDRAN

body2016
JUDGMENT : Mr. T. Ravindran, J. The defendants have in this second appeal challenged the judgment and decree dated 07.10.2010 made in A.S. No. 47 of 2009 on the file of the Subordinate Court, Tindivanam, partly allowing the judgment and decree dated 17.07.2009 made in O.S. No. 111 of 2004 on the file of the District Munsif Court, Tindivanam. 2. The suit has been laid by the plaintiffs claiming partition and mesne profits and also maintenance. 3. The second appeal has been admitted and the following substantial question of law is formulated for consideration in this second appeal. (a) Is the findings of the lower Appellate Court that the suit properties are the joint family properties of the first appellant and his sons are legally sustainable in view of the evidence on record and the admissions of P.W.1 in her deposition. 4. The first plaintiff's husband and the second plaintiff's father Prakash, the second defendant Balaji, and the third defendant Ganesan are the sons of the first defendant Radha Gurukkal and the fourth defendant Premalatha is the wife of the first defendant. The relationship between the above said parties is not in dispute. Claiming that the suit properties are the ancestral/joint family properties belonging to the first defendant and his sons including Prakash, the plaintiffs have laid the suit claiming ¼ share in the suit properties. 5. According to the plaintiffs, the defendants 1 to 3 are each entitled to claim ¼ share in the suit properties. Further, according to the plaintiffs, Prakash left the home voluntarily on 14.08.1992 and thereafter, his whereabouts are not known and therefore, according to the plaintiffs, the absence of Prakash has to be legally treated as civil death and therefore, stepping into the shoes of Prakash, according to the plaintiffs, they are entitled to claim ¼ share in the joint family properties. 6. It is the specific case of the defendants that the suit properties are not the ancestral/joint family properties of the first defendant and his sons and on the other hand, the suit properties are the separate properties of the first defendant. 6. It is the specific case of the defendants that the suit properties are not the ancestral/joint family properties of the first defendant and his sons and on the other hand, the suit properties are the separate properties of the first defendant. Further, according to the defendants, the first defendant was taken and treated as the adopted son of Appadurai Gurukkal and his wife Saradambal and it is further stated that the suit properties are owned by Appadurai Gurukkal and therefore, according to the defendants, on the death of Appadurai Gurukkal, the first defendant obtained the suit properties and further, according to the defendants, it is only the first defendant, who had performed the death obsequies of Appadurai Gurukkal and Saradambal and thus, it is pleaded that the suit properties are the separate properties of the first defendant and not the ancestral/joint family properties of the first defendant and his sons as put forth by the plaintiffs. 7. In such view of the dispute between the parties, it could be seen that the plaintiffs have to establish that the suit properties are the ancestral/joint family properties of the first defendant and his sons as put forth by them. The plaintiffs specific case that the suit properties are the ancestral/Joint family properties of the first defendant and also, treated as the joint family properties of the first defendant and his sons have been specifically denied in the written statement. Despite the above defence the plaintiffs, apart from the ipsi dixit testimony of the first plaintiff examined as PW1, have not endeavored to place any material to enable the courts to hold that the suit properties are the ancestral/joint family properties of the first defendant and his sons, or that the suit properties have been treated as the joint family properties of the first defendant and his sons. Other than the pre-suit notice and the acknowledgment cards marked as Exs.A1 to 4 and placing the evidence of PW1, no material whatsoever has been placed by the plaintiffs to hold that the suit properties are the ancestral/joint family properties of the first defendant and his sons. That apart, the plaintiffs have also not stated in the plaint clearly as to how the suit properties are the ancestral/joint family properties of the first defendant and his sons. With reference to the above case of the plaintiffs, the plaint averments are vague and indistinct. 8. That apart, the plaintiffs have also not stated in the plaint clearly as to how the suit properties are the ancestral/joint family properties of the first defendant and his sons. With reference to the above case of the plaintiffs, the plaint averments are vague and indistinct. 8. On the other hand, it has been admitted by the first plaintiff, during the course of cross examination that she knew Appadurai and his wife Saradambal and Saradambal is the aunt of her father-in-law, the first defendant and there is no heir to Appadurai and Saradambal and her father-in-law, the first defendant is their adopted son and it is correct to state that the suit properties are owned by Appadurai and it is correct to state that it is only the first defendant, who had performed the death obsequies of Appadurai and Saradambal. Further, she has also admitted during the course of evidence that it is correct to state that the first defendant has not declared that the suit properties are the joint family properties and patta for the suit properties was in the name of Appadurai and it is correct to state that after the death of Appadurai and Saradambal, the first defendant had been enjoying the suit properties by changing patta in his name. Therefore, from the above admission of the first plaintiff, it could be seen that the suit properties are the separate properties of Appadurai and that Appadurai and Saradambal had taken the first defendant in adoption and accordingly, it is only the first defendant, who had performed the death obsequies of Appeaduri and Saradambal and accordingly, obtained the properties belonging to Appadurai and in such view of the matter, the case of the plaintiffs that the suit properties are the ancestral/joint family properties of the first defendant and his sons as such cannot be accepted in any manner. 9. Further, the first plaintiff, during the course of evidence, has also testified that the parent title deeds pertaining to the suit property are available and she has filed the same. If there are title deeds pertaining to the suit properties to indicate that they are the ancestral/joint family properties of the first defendant, as rightly argued, the plaintiffs should have endeavored to produce and mark the said title deeds to establish their case. If there are title deeds pertaining to the suit properties to indicate that they are the ancestral/joint family properties of the first defendant, as rightly argued, the plaintiffs should have endeavored to produce and mark the said title deeds to establish their case. On the other hand, the plaintiffs have not taken any steps to establish by producing acceptable proof to hold that the suit properties are the ancestral/joint family properties of the first defendant and his sons. Particularly, when the defendants have taken defence that the suit properties had been obtained by the first defendant as the adopted son of Appadurai and thus, the same are his separate properties and when there is nothing on record placed by the plaintiffs to presume or hold that the suit properties are the ancestral/joint family properties of the first defendant and his sons, it could be seen that as rightly argued by the counsel for the appellants, the first appellate court without any basis or any evidence on record erred in holding that the suit properties are the joint family properties of the first defendant and his sons. While coming to the above said conclusion, as rightly contended by the appellants counsel, the first appellate court has completely ignored the evidence of PW1, who as seen above, clearly admitted that the suit properties originally belonged to Appadurai and that the first defendant had inherited the same as his adopted son. Therefore, it could be seen that the findings of the first appellate court without any evidence on record and much against the admission of PW1 that the suit properties are the ancestral/joint family properties of the first defendant and his sons are perverse and erroneous in law and also misdirected against the evidence on record. 10. In the light of the above discussion, it has been found that the plaintiffs have miserably failed to establish that the suit properties are the ancestral/ joint family properties of the first defendant and his sons. Equally, there is no evidence on record to hold that the suit properties have been treated as the joint family properties of the first defendant and his sons at any point of time. It has been admitted by the first plaintiff during the course of evidence that after the death of Appadurai, patta for the suit properties have been mutated only in the name of the first defendant. It has been admitted by the first plaintiff during the course of evidence that after the death of Appadurai, patta for the suit properties have been mutated only in the name of the first defendant. That apart, no material has been produced to enable the court to hold that the suit properties have been treated as the joint family properties of the first defendant and his sons at any point of time. 11. However, it is argued by the plaintiffs counsel that it has been admitted that the first defendant had alienated certain properties to discharge the debts incurred by Prakash, the husband of the first plaintiff and also allotted certain properties to the other two sons viz., the defendants 2 & 3 and on that footing the court should hold that the suit properties have been treated as the joint family properties of the family. However, the above argument does not merit acceptance. In the absence of any proof or material to hold that the suit properties had ever been treated as the joint family properties of the first defendant, merely because the first defendant had alienated certain properties to discharge the debts incurred by Prakash, the husband of the first plaintiff and allotted certain properties to the defendants 2 & 3 would not by itself lead to the conclusion that the suit properties were treated and enjoyed as the Joint family properties of the first defendant and his sons. 12. As rightly argued by the defendants counsel, the first defendant being the father had in view of the pressure exerted by the creditors of Prakash, unable to withstand the same, per force, alienated certain properties to discharge the debts incurred by Prakash. In this connection, PW1 during the course of her evidence has also admitted that on account of heavy debts, unable to bear them, her husband Prakash left the home and it is correct to state that thereafter, it is only the first defendant, who had discharged the said debts and it is correct to state that inasmuch as he had discharged the debts incurred by Prakash, he had allotted certain properties to the other two sons viz, the defendants 2 & 3. Therefore, it could be seen that the first defendant had necessarily and by compulsion alienated his properties to discharge the debts incurred by his son Prakash and equally in order to satisfy the other two sons had also allotted certain properties to them. This act of the first defendant in distributing his properties to his sons by itself would not lead to the conclusion that the suit properties had been treated as the joint family properties of the first defendant and his sons. 13. The plaintiffs have failed to establish that Prakash or the other sons of the first defendant had any pre existing right in the suit properties. In such view of the matter, the claim of the plaintiffs that they are entitled to ¼ share in the suit properties on the footing that they are the legal heirs of Prakash, whose whereabouts are unknown for several years and his absence to be treated as civil death, cannot be accepted sans any material to hold that the suit properties are the ancestral/joint family properties of the first defendant and his sons. 14. In this connection, the first defendant during the course of his evidence has asserted that his adoptive father is Appadurai Gurukkal and the suit properties are owned by Appadurai and he has alloted the properties to be inherited by him and the suit properties are his separate properties and the suit properties were not treated as the joint family properties and inasmuch he had discharged the debts incurred by Prakash, he had alloted certain properties to his other sons and the plaintiffs are not entitled to claim any partition in the suit properties. Nothing has been pointed out during the cross examination of the first defendant examined as Dw1 to discredit his evidence with reference to the above said facts. Therefore, when there is no material on record to enable the courts to hold that the suit properties are the joint family properties of the first defendant and his sons, the first appellate court has completely misdirected itself in coming to the conclusion that the suit properties are the joint family properties of the first defendant and his sons and as such, the plaintiffs are entitled to claim ¼ share in the suit properties. 15. 15. In view of the above discussion, the substantial question of law framed in this second appeal is answered in favour of the appellants and against the respondents. In view of the above, judgment and decree dated 07.10.2010 made in A.S.No.47 of 2009 on the file of the Subordinate Court, Tindivanam, granting the preliminary decree for partition and mesne profit in favour of the plaintiffs are set aside. Resultantly, the suit laid by the plaintiffs seeking the relief of partition and mesne profits is dismissed. Accordingly, the second appeal is allowed. No costs.