Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 3482 (MAD)

B. Sornam v. P. R. Kadirvel

2017-10-31

N.SESHASAYEE

body2017
JUDGMENT : The fourth defendant is the appellant herein. The suit was laid for partition of plaintiff's, share in the suit property. The Trial Court dismissed the suit whereas the first appellate Court allowed the appeal and granted a preliminary decree of partition to the first respondent/plaintiff for 1/4th share of the suit property. Aggrieved by the decree of the first appellate court, the fourth defendant has come forward with this appeal. Narrative convenience seeks that parties be referred to by their rank before the trial Court. 2. Admitted facts are: The suit property is stated to have an extent of 34.4 cents in T.Sy. No. A/20-25 situated within the limits of Devakottai Municipality. This property originally belonged to one Venkatachalam Chettiyar. On 10-07-1961, under Ex.A-1 Venkatachalam Chettiyar had sold his property to Subburayan Ambalam. Subburayan Ambalam's son is Periyakaruppan Ambalam, the first defendant in the suit. The first defendant had married one Muthammal, through whom, he has a son Ragunathan. Thereafter, he took one Panchavarnam as his second wife, through whom, he has three sons, viz., the plaintiff and defendants 2 and 3. He also has daughters through his second wife. While so, on 14-06-1971, the first defendant had partitioned the family property with Raghunathan, born to him through his first wife. Ex.A-2 is the partition deed. The suit property along with three other properties were allotted to the share of the first defendant in the said partition. 3. The controversy: In the backdrop of the above said facts, the plaintiff has come forward with the present suit contending that the suit property is ancestral in character in the hands of the first defendant; that he along with defendants 2 and 3 have equal share in the suit property; that he demanded his father to partition the properties; that on 06-08-1996, when he attempted to effect division of the suit property with the concurrence of his brothers, who are arrayed as the defendants 2 and 3, the fourth defendant obstructed the same contending that she has purchased the property. The fourth defendant, however, would not divulge how she derived title to the property. The fourth defendant, however, would not divulge how she derived title to the property. The first defendant, as the Kartha of the family has no power to alienate the ancestral property except for dire family necessities, that the joint family has been free from debts and that it does not require alienation of an ancestral property and if there is any alienation in the manner the fourth defendant contends, the same is void and it does not bind the shares of other coparceners. There is no need for the plaintiff to seek a decree for setting aside the same and they can ignore such alienation. On the above facts, the plaintiff has sought a decree for partition. 4. Only the fourth defendant has contested the suit. Denying the allegations on which the plaintiff has found the cause of action for his suit, the fourth defendant has alleged in her written statement that: The suit property has not been allotted to the plaintiff and the defendants 1 to 3 as their joint family property; that the suit property was the personal property of the first defendant and that he has every authority to alienate his property. On 11-08-1980, the first defendant sold the entire property under three separate sale deeds to one Kalimuthu, Valli and another Pappathi. Each of these sale deeds dealt with specific plots. On 13-07-1984, all the purchasers from the first defendant had sold the property to the fourth defendant. Ever since the date of the purchase, the fourth defendant has been in continuous possession and enjoyment of the suit property. This defendant has also improved the property by levelling it. Besides, necessary mutation has also been made in the revenue records and patta has been granted to this defendant. The plaintiff and his brothers have other properties to seek partition, and it is strange for the plaintiff to seek partition of the suit property alone. Alternatively, since 1984, this defendant has been in open enjoyment of the property to the knowledge of the plaintiff and the defendants 1 to 3 and consequently this defendant has prescribed title to the suit property by adverse possession. The suit is laid with an ulterior motive to extract amounts from this defendant. 5. Alternatively, since 1984, this defendant has been in open enjoyment of the property to the knowledge of the plaintiff and the defendants 1 to 3 and consequently this defendant has prescribed title to the suit property by adverse possession. The suit is laid with an ulterior motive to extract amounts from this defendant. 5. On the aforesaid pleadings, the trial Court has framed three issues but, an issue as to the character of the suit property in the hands of the first defendant is not one of them. 6. Before the Trial Court, on side of the plaintiff, the three sale deeds, executed by the first defendant pertaining to the suit property on 11-08-1980, were marked as Exs.A-7 to Ex.A-10 and the copies of the sale deeds executed by purchasers thereof on 13-07-1984 in favour of the fourth defendant were marked as Exs.A-4 to Ex.A-6. Their original were produced by the defendants as Exs.B-1 to B-3. The proceedings to change of patta in the name of the fourth defendant is marked as Ext.B-11. Ext.B-14 and B-15 are tax receipts. 7. The Trial Court, on an appreciation of evidence, has dismissed the suit. For arriving its conclusion, the trial court has relied on the recitals in Ex.A-4 to Ex.A.6 sale deeds which disclose that the same were made by the first defendant only for family necessity. When these sale deeds were executed, the plaintiff was a minor. He, having attained majority in 1982, has not chosen to cancel the sale deeds for the next 14 years. It is also held by the trial court that the first defendant's daughters through his second wife Panchavarnam, might have acquired some rights based on the Tamil Nadu amendment to Hindu Succession Act, but they have not been arrayed as parties to the suit. 8. The First Appellate Court, however, did not subscribe to the decision of the trial court. In its judgment one of the points raised is whether the sale of the first defendant, referring the suit property as his personal property would bind the right and interest of the plaintiff. To this, the First Appellate Court held that inasmuch as the property has been divided as family property under Ex.A.2 partition deed, the same would indicate that the suit property is only the joint family ancestors property in nature and character. To this, the First Appellate Court held that inasmuch as the property has been divided as family property under Ex.A.2 partition deed, the same would indicate that the suit property is only the joint family ancestors property in nature and character. It also finds that there is no proof of any legal necessity for the first defendant to effect the sale. 9. On admission, the following substantial questions of law have been framed by this Court for consideration of this appeal: 1. Whether Sec.44 of the Transfer of property Act is applicable to the case, without any pleading and grounds of appeal as decided by the lower appellate court? 2. Whether the appellant has not perfected title by adverse possession as held in 1996 2 L.W. 344? 3. Whether the suit is not barred by limitation as held by the trial court? 4. Whether the finding of the lower appellate Court that the property has been sold not for any family necessity and there are no other properties available for partition is against supported and acceptable evidence? 5. Whether the suit is bad for non joinder of necessary parties as held by the trial court? 10. Heard the learned counsel for the appellant. It is informed by the learned counsel appearing for the first respondent that his client has obtained the case papers from him. It is long settled that a client should seek the counsel and if he does not engage the counsel to represent him then he would be entitled to only such notice which any litigant is entitled to. The normal practice of this court is to post the case in the cause list and when a litigant takes up the responsibility himself, then he too shall go through the system. This situation cannot however, be equated to where a counsel reports no instruction on the morning of the hearing in which case this Court has accepted a practice of intimating him through its notice since the party concerned must be put on notice that his interest in the litigation is not protected before the court. 11. The learned counsel for the appellant/4th defendant contended that the property involved in the ongoing litigation is not ancestral in character, and this point was not pointedly raised by any of the courts below and that the first defendant has every right to alienate the property. 11. The learned counsel for the appellant/4th defendant contended that the property involved in the ongoing litigation is not ancestral in character, and this point was not pointedly raised by any of the courts below and that the first defendant has every right to alienate the property. Nor have the Courts below ascertained the status of the plaintiff to seek partition. Both these aspects are essentially issues to be resolved on the basis of legal implication of the facts proved by evidence, argued the counsel. They are taken along with the discussion to be made below. 12.1 The basic premise on which the plaintiff has founded his cause of action is that the suit property is ancestral property, that he has acquired a right by birth in it, and hence came forward to file the suit for partition against his father and brothers ignoring the sales made by his father. The core point therefore, revolves on the character of the suit property in the hands of the first defendant, and if the plaintiff had acquired a right by birth in the suit property in order he could maintain a suit for partition during the lifetime of his father. Whether, the alienation by the first defendant is for family necessity can arise for consideration only after deciding the aforesaid issues as above. The courts below circumnavigated them, even though the evidence is available on record to decide. 12.2 Whether the suit property is ancestral in character in the hands of the first defendant is a critical issue that the courts below ought to have raised pointedly. The First Appellate Court has come closer to this point, but, still missed it during discussion. 13.1 Admittedly, the property was purchased under Ext.A-1 by the first defendant's father Subburayan Ambalam. Any property inherited by a male Hindu from his father, grandfather or great grandfather is ancestral in his hands. It is not known whether Subburayan Ambalam had left any Class-I female heirs when he died. At least the same was not pleaded. Therefore, the convenient basic premise is that the suit property was ancestral in the hands of the first defendant till the time it was divided between the first defendant and his eldest son Ragunathan, who born to him through his first wife. At least the same was not pleaded. Therefore, the convenient basic premise is that the suit property was ancestral in the hands of the first defendant till the time it was divided between the first defendant and his eldest son Ragunathan, who born to him through his first wife. 13.2 It is an admitted fact that the plaintiff and the defendants 2 and 3 were born to the first defendant's second wife Panchavarnam. P.W.1 in his evidence has stated that the first defendant's wife Muthammal was alive at the time he testified before the Court but his own mother Panchavarnam was no more. And, there is no case for the plaintiff that the first defendant's marriage to Muthammal was dissolved in law. There is not an indication about it even in evidence. Even in Ext.A-2 under which properties were partitioned between the first defendant and his son through his first wife, it is only recited that he and his first wife were living separately. This makes it amply clear that the first defendant's marriage with Panchavarnam was not valid and consequently, the children, born to the first defendant through an invalid marriage, are illegitimate children. 14. These children born to the first defendant through his second marriage therefore can neither acquire any right in the ancestral properties [(See: Jinia Keotin Vs Sitaram Manjhi, (2003)1 SCC 730 ], nor acquire any right to their father's properties during his lifetime. The only right they have is in their parents' properties under Sec.16(3) of the Hindu Marriage Act, but the right an illegitimate child can acquire to its parents' properties under Sec.16(3) operate posthumously, after the demise of the parents when succession to their estate opens. 15. With no other after born legitimate child, the property obtained by the first defendant under Ex.A-2 partition deed can be termed only as his personal property and neither the plaintiff nor any of his brothers/the defendants 2 and 3 acquired any share in the suit property to seek partition. Necessarily first defendant had every right to sell the suit property and these sales cannot be challenged, and indeed the plaintiff/first respondent does not have the locus standii to challenge. 16. Necessarily first defendant had every right to sell the suit property and these sales cannot be challenged, and indeed the plaintiff/first respondent does not have the locus standii to challenge. 16. This Court finds that both the courts below have ignored to investigate if the suit property is an ancestral property in the hands of the first defendant, nor has it entered a probe into the status of the parties. Nor have they read the evidence closely, and hence happen to arrive at findings which are a distance from a justifiable and sustainable findings in law. This appeal is of the year 2001, and it will an injustice to the appellant if this Court were to ignore the evidence available on record proving a certain fact, and remand the matter to the Court below just for applying law on the facts proved by evidence on record. After all, a judicial admission made by P.W.1. about his father's first wife and the inference that could be drawn therefrom cannot be explained away. 17. The conclusion: This Court has already held that the plaintiff has no locus standi to maintain the suit itself. Surely, the appellant is bound to succeed for the following reasons: That the suit-property is the personal property of the first defendant, and consequently the plaintiff has no locus standi to institute a suit for partition during the lifetime of his father. Even if the suit property is considered ancestral, still even by his own testimony which leads to a preponderating probable inference that he is not a legitimate son of the first defendant, he would not acquire any right by birth in the suit property for enforcing a partition of the same. 15. In the result, this second appeal is allowed and the judgment and decree of the learned Additional District Judge-cum-Chief Judicial Magistrate, Sivagangai, in A.S. No. 177 of 1997 dated 20.09.2000 is set aside and the judgment and decree of the learned Subordinate Judge, Devakottai in O.S. No. 111 of 1996 dated 08.09.1997, shall stand restored. No costs. Consequently, connected CMP No. 4877 of 2001 is closed.