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2017 DIGILAW 2848 (MAD)

A. Shanmuganathan v. K. Arunachalathammal

2017-08-23

T.RAVINDRAN

body2017
ORDER : The petitioner has obtained a decree in O.S.No.201 of 1999, for recovery of money, against the estate of the deceased Kottiappan to whom the respondents are the legal representatives. The petitioner put the decree obtained by him in execution by filing E.P.No.18 of 2004, under Order XXI Rules 54 and 66 C.P.C. The said execution petition was resisted by the respondents by contending that the property described in the execution petition had not been obtained by them as the legal representatives of the deceased Kottiappan and on the other hand, it is stated that the said property belonged to the first respondent in her individual capacity and thereon the respondents had put up a house construction and inasmuch as the petitioner has not obtained any personal decree against the respondents, he is not entitled to put the decree in execution as against the property owned by the respondents as such and further, according to the respondents, they had sold the said property to one Anaiappan, on 27.04.2004 and therefore, it is stated that the execution proceedings are liable to be dismissed. 2. In support of the petitioner's case, P.W.1 has been examined and Exs.P1 and P2 have been marked and on the side of the respondents, R.Ws.1 to 3 have been examined and Exs.R1 to R8 have been marked. 3. On a consideration of the rival contentions put forth by the respective parties and the materials placed, the Court below was pleased to dismiss the execution petition. Impugning the same, the present civil revision petition has been preferred. 4. It is not in dispute that the petitioner has obtained the decree in O.S.No.201 of 1999 for recovery of money in respect of the estate of the deceased Kottiappan lying in the hands of the respondents. Now, according to the petitioner, the property described in the execution petition belonged to the deceased Kottiappan and the respondents had obtained the same as his legal representatives and also put up a house construction thereon only out of the gratuity amount and pensionary benefits received by them on the demise of Kottiappan. Therefore, it is the case of the petitioner that he is entitled to proceed against the property described in the execution petition. 5. Therefore, it is the case of the petitioner that he is entitled to proceed against the property described in the execution petition. 5. Per contra, it is the case of the respondents that the execution petition schedule property is the individual property of the first respondent and not inherited by her from the deceased Kottiappan as his legal representative and on the other hand, according to the respondents, the same had been inherited by the respondents out of the estate of the deceased Kottiappan's father and therefore, the children of Kottiappan have right in the said estate by birth and inasmuch as the petitioner has not obtained any personal decree against the respondents, he is not entitled to proceed with the execution proceedings as against the execution schedule property. 6. The partition deed in question, dated 06.09.2002, has been marked as Ex.P1. A perusal of the same would go to show that the legal heirs of Ramaiah had effected partition of the property belonging to him under the above said partition deed and the deceased Kottiappan is one of the sons of Ramaiah and inasmuch as on the date of the above said partition Kottiappan was not alive and left the respondents as his legal representatives, it is found that the share to which the deceased Kottiappan would be entitled as one of the legal heirs of the deceased Ramaiah, it is found that the said share has been allotted to the respondents herein. It is, therefore, found that only as the legal representatives of the deceased Kottiappan, the respondents had been allotted the share in the property of Ramaiah and in such view of the matter, the contention put forth by the respondents that the properties allotted to them under the partition deed is their self-acquired properties as such cannot be accepted. On the other hand, as rightly put forth by the learned counsel for the petitioner, the property which would have been allotted to the share of the deceased Kottiappan as one of the legal heirs of Ramaiah, under the partition deed, would constitute his self- acquired property as per law and when the same had been allotted to the respondents herein as the legal heirs of the deceased Kottiappan, it is found that the said property is the estate of the deceased Kottiappan and had been inherited as such by the respondents. Therefore, the contention of the respondents that the children of the deceased Kottiappan had rights in the properties covered under the partition deed by birth as such cannot be countenanced in any manner. On the other hand, it is found that they had inherited only the estate of the deceased Kottiappan under the above said partition deed and therefore, it is seen that the contention put forth by the respondents that the petitioner is not entitled to proceed against the said property as such cannot be accepted. 7. That apart, a perusal of the property described in the execution petition schedule as well as the property covered under Ex.P1 would go to show that they are one and the same. Therefore, the contention that the petitioner has not given the description of the property clearly also cannot be countenanced. A perusal of the description of the property given in the execution petition would go to show that the petitioner seeks to proceed against the property both the house site as well as the house construction put up thereon. Therefore, the contention put forth by the respondents that only the house construction is sought to be proceeded by the petitioner in the execution proceedings and not as against the site also cannot be accepted in any manner. 8. As seen from the admissions made by the respondents during the course of evidence, it is found that they have no independent means to put up the house construction on the property concerned. On the other hand, it is found that only with the aid of the gratuity amount and the pensionary benefits, which they had obtained on the demise of Kottiappan, the same also constituting the estate of the deceased Kottiappan, the respondents had put up the house construction, it is found that as rightly put forth by the learned counsel for the petitioner, the house construction put up on the property also would form part of the estate of the deceased Kottiappan. In such view of the matter, the contention raised by the respondents that the house construction put up by them was out of their own funds as such cannot be accepted, particularly, in the absence of any reliable material to sustain the above theory and particularly, when the admission of the respondents is that only with the aid of the gratuity amount and the pensionary benefits obtained on the demise of Kottiappan, the house construction has been put up thereon. Therefore, the mere fact that the house tax receipt stands in the name of the first respondent as such does not in any manner advance the case of the respondents to stifle the execution proceedings levied by the petitioner. 9. That apart, the sale said to have been effected by the respondents in favour of Anaiappan, who is none other than the husband of the fifth respondent, dated 27.04.2004, is found to have come into existence pendente lite and therefore, the said sale would not in any manner affect the rights of the petitioner to execute against the property involved in the matter. Further, a perusal of the above said sale deed, marked as Ex.P2, would also go to show that a reference about the partition deed, dated 06.09.2002, has been made therein and therefrom also it is found that the respondents have admitted that they had inherited the property involved in the matter only as the estate of the deceased Kottiappan and accordingly, thereafter, pendente lite they had alienated the same to Anaiappan under Ex.P2. Even the partition deed, dated 06.09.2002, is found to be hit by the doctrine of lis pendens in sofar as the estate derived by the respondents as the same had come into existence pendente lite i.e., after the decree passed in the suit, dated 28.01.2002 and before the petitioner is able to realize the fruits of the decree. Even the partition deed, dated 06.09.2002, is found to be hit by the doctrine of lis pendens in sofar as the estate derived by the respondents as the same had come into existence pendente lite i.e., after the decree passed in the suit, dated 28.01.2002 and before the petitioner is able to realize the fruits of the decree. In such view of the matter, it is found that the alienation made by the respondents to Anaiappan would not in any manner disentitle the petitioner to proceed against the property and considering the position that the property had been alienated only in favour of the husband of the fifth respondent pendente lite, it is found that the respondents have alienated the property only with a view to defeat the rights of the petitioner so as to prevent him from realizing the fruits of the decree obtained by him against the estate of the deceased Kottiappan lying in the hands of the respondents herein. 10. The learned counsel for the respondents, in support of his contentions, placed reliance upon the decision reported in 2010 (5) CTC 77 [C. Velu @ Venkatesalam and others vs. S. Kandasamy Chettiar (died) and others]. However, as rightly argued by the learned counsel for the petitioner, the said decision is not applicable to the facts and circumstances of the case at hand. 11. In the light of the above discussions and conclusion, it is found that the Court below has misled itself and come to the erroneous conclusion by considering the materials placed before it in a perverse manner and in the wrong perspective and thereby fell into error in dismissing the execution proceedings. On the other hand, it is found that the contentions put forth by the respondents are not sustainable both factually as well as legally and in such view of the matter, the contentions of the respondents are rejected. 12. In conclusion, the fair and decreetal orders, dated 13.09.2006, passed in E.P.No.18 of 2004 in O.S.No.201 of 1999, on the file of the Sub Court, Ambasamudram, are set aside and the Court below is directed to order the attachment of the execution petition schedule property and further proceed with the sale thereof in accordance with law immediately on receipt of a copy of this order. Accordingly, the civil revision petition is allowed with costs.