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2018 DIGILAW 3629 (MAD)

S. Venkatachalam v. Saradambal

2018-10-08

T.S.SIVAGNANAM

body2018
JUDGMENT T.S. Sivagnanam, J. The 1st defendant in O.S.No.335 of 1999 on the file of the Second Additional Sub-Court, Erode, is the appellant in this second appeal. The 1st respondent herein is the plaintiff and the respondents 2 to 5 are the defendants 3 to 6. During the pendency of the suit, the 2nd defendant, S.Sellammal died. 2. The 1st respondent/plaintiff filed the suit for partition, directing division of the suit properties into 18 equal shares by metes and bounds and allotment of 7 such contiguous shares to the plaintiff and put her in separate possession of such shares; appoint a Commissioner to make division of the suit properties and restrain the defendants 1 to 5 from in any manner either alienating or encumbering the suit properties with specific boundaries including the share of the plaintiff either to the 6th defendant or to any other 3rd party till a final partition is effected. 3. The Trial Court, by decree and judgment dated 18.09.2006, decreed the suit and granted a preliminary decree directing partition and division of the suit property into 15 equal shares and allotment of six such contiguous shares to the plaintiff and also granted a decree of permanent injunction as prayed for. 4. The 1st defendant, appellant in this appeal, preferred an appeal suit in A.S.No.1 of 2007 against the decree and judgment dated 18.09.2006, before the Principal District Court, Erode. The lower appellate court, by judgment and decree dated 19.09.2007, dismissed the appeal suit and confirmed the decree and judgment of the trial court dated 18.09.2006. Challenging the same, the 1st defendant filed S.A.No.131 of 2018, which was allowed by this Court and the matter was remanded to the lower appellate court for re-hearing the appeal on merits. 5. On remand, the lower appellate court, by judgment and decree dated 06.01.2018, dismissed the appeal suit and confirmed the decree and judgment of the trial court dated 18.09.2006. Challenging the same, the 1st defendant has filed this second appeal. In this appeal, the appellant has raised the following substantial questions of law for consideration:- "A. When a member of a joint family releases his rights of his share in the joint family properties in favour of other sharers, then, whether these properties so released will not become the separate properties of the members in whose favour the properties have been released? B. When members of a family releases their rights in a property as part of a family arrangemen, whether by such mere conduct of parties releasing their rights, the character of the properties so released, acquires the character of joint family properties?" 6. Mr. T. Muruga Manickam, learned Senior Counsel assisted by M/s. Zeenath Begum, learned counsel for the appellant submitted that the plaintiff had sought for partition of the suit properties being ancestral properties in the hands of her father Sengodu @ Sengoda Gounder and she claimed right under Act 1 of 1990 as a coparcener along with the appellant/1st defendant. 7. The 1st defendant contended that the suit properties are separate properties of Sengodu @ Sengoda Gounder and he had executed a Will dated 31.03.1993, which was registered and all the properties of Sengodu @ Sengoda Gounder stand bequeathed in favour of the appellant/1st defendant and therefore, the plaintiff has no right to claim any share in the suit property. 8. It is submitted that the trial court gave a finding that the suit properties are ancestral in nature and the plaintiff is entitled to share as per Act 1 of 1990 and rejected the Will dated 31.03.1993 as not being genuine and accordingly, the suit was decreed. 9. It is contended by the learned Senior Counsel that Kolandianna Gounder had three sons, viz., Chinnappa Gounder, Muthusamy Gounder and Sengodu @ Sengoda Gounder and two daughters, viz., Nallammal and Ammaniammal. Under Ex.B2 dated 08.06.1996, Chinnappa Gounder and Sengoda Gounder purchased an extent of Punja lands and 1/3rd share in the house property and 75 cents in another property. 10. It is submitted that these properties, in the hands of the purchasers, are to be treated as self-acquired properties or coparcenary properties and this fact went un-noticed in the proceedings before the Courts below. It is submitted that this issue assumes significance in the light of the fact that there is no allegation of any blending or throwing into common hotch-pot. However, the Trial Court held that the property is a coparcenary property and that the 1st respondent/plaintiff is entitled to share therein as per Act 1 of 1990. It is submitted that Kolandianna Gounder released 50 cents of lands in favour of Chinnappa Gounder and Sengoda Gounder. 11. However, the Trial Court held that the property is a coparcenary property and that the 1st respondent/plaintiff is entitled to share therein as per Act 1 of 1990. It is submitted that Kolandianna Gounder released 50 cents of lands in favour of Chinnappa Gounder and Sengoda Gounder. 11. The question, which arose for consideration, was whether this property, which was released, has to be considered as a separate property or an ancestral property in the hands of Chinnappa Gounder and Sengodu @ Sengoda Gounder. 12. It is submitted that the trial court without any evidence, rendered a perverse finding that the property has to be treated as ancestral in the hands of Sengodu @ Sengoda Gounder and the plaintiff would be entitled to a share therein. It is further submitted that Chinnappa Gounder and Sengodu @ Sengoda Gounder partitioned the properties among themselves under Ex.B3 dated 12.05.1981 and the question was as to what would be the character of the property so divided between two co-owners. It is submitted that a property, which is succeeded will be a separate property in the hands of the person so getting it and his children will have no right by birth therein. 13. It is further submitted that the Court below failed to appreciate the effect of Ex.A4, Release Deed dated 17.03.1993 under which, the four daughters have released their 1/4th right in the 50 cents of land within the specified boundaries. It is submitted that this document was executed by persons, who have no right in the property on the date of release, as in terms of Act 1 of 1990, only daughters who have not been married on 25.03.1989 have been given right to equal shares as that of their brothers. 14. Further, it is submitted that there is absolutely no evidence placed before the trial court to establish that how suit property originally belonged to Kolandianna Gounder and in the absence of evidence, the trial court erroneously came to the conclusion that the property is a coparcenery property. Further, it is submitted that the trial court erroneously referred to the suit filed by Nallammal and Ammaniammal against their brothers Chinnappa Gounder and Sengodu @ Sengoda Gounder in O.S.No.1232 of 1984 on the file of District Munsif Court, Erode. 15. Further, it is submitted that the trial court erroneously referred to the suit filed by Nallammal and Ammaniammal against their brothers Chinnappa Gounder and Sengodu @ Sengoda Gounder in O.S.No.1232 of 1984 on the file of District Munsif Court, Erode. 15. It is further submitted that the High Court remanded the matter with specific directions to the lower appellate court to decide three circumstances and without properly construing the documents, the lower appellate court held that the property cannot be taken as an ancestral property qua children of Sengoda Gounder. Further, it is submitted that there is no pleading or evidence on record to canvass a case of lending or merger and in the absence, those acquisitions will remain self-acquired and separate property. 16. Further, it is submitted that the reasons assigned for rejection of the Will are unsustainable and unacceptable. In support of his contention, the learned counsel placed reliance on the decision in the case of Ammalu Ammal vs. Govindasami Reddiar and another, 86 LW 682. 17. Mr. A. Sundaravadhanan, learned counsel appearing for the 1st respondent/plaintiff submitted that the trial court, after careful consideration of the evidence on record, held that the properties acquired through Exs.B1 and B2 were thrown into the common hotch-pot and was lended and enjoyed for around 15 years and was partitioned later and in the said documents, a pre-existing and sufficient ancestral nucleus prior to the acquisition has been admitted. Further, the polling of common efforts and joint labourer by all the family members is also conceded. Further, the trial court vitiated that the Release Deed, Ex.A4 dated 17.03.1993, itself recognizes the rights and interest of the plaintiff and her sisters and co-sharers, even if it is taken that the defendant no.1 alone is in possession, it can only be held that he is in possession on behalf of all co-owners, as under law, the possession by one co-owner is possession on behalf of other co-owners also. 18. Further, the learned counsel has drawn the attention to the findings recorded by the trial court as well as by the lower appellate court on remand and pointed out that the lower appellate court had rightly appreciated the evidence and dismissed the appeal filed by the appellant/1st defendant and submitted that the substantial questions of law, framed for consideration, may be answered in favour of the 1st respondent/plaintiff. The learned counsel fairly submits that the substantial questions of law raised in this appeal only touch upon the character of the suit properties whether it is ancestral or self-acquired and the appellant has not raised a question with regard to the validity of the Will. 19. Heard Mr. S. Jeyakumar, learned counsel for the respondents 2 to 4. 20. The 1st respondent/plaintiff, Tmt. Saradambal is one of the four sisters of the 1st defendant and she was the youngest and was married on 07.06.1989. The 2nd defendant is the mother of the 1st respondent/plaintiff and the defendants 1, 3 to 5. Sengodu @ Sengoda Gounder is the husband of the 2nd defendant and father of the plaintiff and the defendants 1, 3 to 5. 21. The 1st respondent/plaintiff filed the suit for partition on the ground that the properties are ancestral properties of Sengodu @ Sengoda Gounder, who is the husband of the 2nd defendant and father of the plaintiff and the defendants 1, 3 to 5. 22. The plaintiff's case is that originally there were ancestral properties belong to the family, and Sengodu @ Sengoda Gounder and his brother Chinnappa Gounder partitioned the ancestral joint family properties by registered Partition Deed dated 12.05.1981. Under the said Deed, the suit properties were allotted to the share of Sengodu @ Sengoda Gounder. 23. It is the further case of the plaintiff that subsequent to the Partition Deed dated 12.05.1981 among the father of the plaintiff/Sengodu @ Sengoda Gounder and his brother Chinnappa Gounder, the entire family properties viz., the suit properties and other properties were put into common hotch-pot and enjoyed by Sengodu @ Sengoda Gounder, the 1st defendant and the plaintiff and some joint family properties were sold for joint family necessity by the plaintiff, the 1st defendant and Sengodu @ Sengoda Gounder and the remaining properties alone are the suit properties describing the plaint schedule and enjoyed by the plaintiff, the 1st defendant and Sengodu @ Sengoda Gounder. The said Sendogu @ Sengoda Gounder intestate in the year 1998 leaving behind the 2nd defendant, his wife; the 1st defendant, his son; and the plaintiff and the defendants 3 to 5, his daughters as the legal heirs. The said Sendogu @ Sengoda Gounder intestate in the year 1998 leaving behind the 2nd defendant, his wife; the 1st defendant, his son; and the plaintiff and the defendants 3 to 5, his daughters as the legal heirs. Subsequent to the death of Sengodu @ Sengoda Gounder, the plaintiff claimed that he is entitled to 7/18th share, the 1st defendant would be entitled to 7/18th share and the defendants 2 to 5 together are entitled to 4/18th share viz., 1/18th share each. The appellant/1st defendant resisted the suit claim contending that Sengodu @ Sengoda Gounder and his brother enjoyed the properties in common as their absolute properties and partitioned the same on 12.05.1981 from when on Sengodu @ Sengoda Gounder enjoyed the same as his separate and absolute property. 24. Further, it was stated that there was no ancestral properties and Sengodu @ Sengoda Gounder in a sound disposing state of mind, executed a registered Will dated 31.03.1993 bequeathing the suit properties in favour of the appellant/1st defendant. On the demise of Sengodu @ Sengoda Gounder in 1998, the Will had come into force and the 1st defendant has enjoyed the property as his absolute property. Thus, it was contended that unless the plaintiff challenges the Partition Deed dated 12.05.1981, in case she claims right by birth, she cannot reopen the partition without challenging the same. 25. The 2nd defendant filed written statement, supporting the stand taken by the appellant/1st defendant, which written statement was adopted by the 4th defendant. The defendants 3 and 6 remained absent and were set ex-parte. Before the trial court, the plaintiff examined herself as PW1 and Ammaniammal was examined as PW2 and 11 documents were marked as Exs.A1 to A11. On the side of the defendants, the appellant/1st defendant examined himself as DW1, one Jayakumar as DW2; Sellammal as DW3 and 5th defendant Maragatham as DW4. The trial court framed four issues for consideration viz., (i) Whether the plaintiff is entitled to the relief of partition as prayed for? (ii) Whether the suit properties are ancestral or self-acquired properties of Sengoda Gounder? (iii) Whether the Will dated 31.03.1993 executed by Sengoda Gounder is true, valid and binding on the parties? and (iv) Whether the defendants are the owners of the suit properties as alleged in the written statement. 26. (ii) Whether the suit properties are ancestral or self-acquired properties of Sengoda Gounder? (iii) Whether the Will dated 31.03.1993 executed by Sengoda Gounder is true, valid and binding on the parties? and (iv) Whether the defendants are the owners of the suit properties as alleged in the written statement. 26. By judgment and decree dated 18.09.2006, the suit was decreed and the suit properties were directed to be divided into 15 equal shares and the plaintiff was allotted six contiguous shares. The appellant herein filed an appeal before the lower appellate court in A.S.No.1 of 2007. The lower appellate court after considering the documents filed and the oral evidence more particularly that of DW2 and DW3, disbelieved the Will and held that it is not a valid testament and after assigning reasons, dismissed the appeal by judgment and decree dated 19.09.2007. Challenging the said judgment, the appellant herein filed S.A.No.131 of 2008 in which, two substantial questions were raised viz., (i) When a member of joint family releases his share in favour of other coparceners for consideration, will this transaction not amount to a conveyance, thereby becoming the separate properties of the releases? (ii) Whether the judgment of the lower appellate court is vitiated in that as a final court of fact, it has not independently come to any conclusion, but, has proceeded to hold that the trial court has correctly rendered findings, which do not warrant interference? 27. The Court after hearing the learned counsels for the parties, decided to remand the matter to the lower appellate court on the ground that it has failed to adhere to the provisions of Order 41 Rule 31 C.P.C. The reason for remand is to decide whether the properties are ancestral properties and jointly enjoyed by the family members or absolute properties of Mr.Sengodu @ Sengoda Gounder and secondly whether the Will of Mr.Sengodu @ Sengoda Gounder is genuine. In sum and substance, the Court held that the lower appellate court, which failed to appraise the evidences independently, to decide the character of the properties after blending of self-acquired properties into the ancestral properties; the character of a deed executed on receipt of consideration but carry the nomenclature of release deed; and the probity of the Court making comparison of signatures through naked eyes to disbelieve the witness when admittedly, they accepted and disputed signatures were not made contemporaneously. 28. 28. The Court referred to the decision of the Hon'ble Supreme Court in B.V. Nagesh and Others vs. H.V.Sreenivasa Murthy, (2010) 5 CTC 719 wherein, the Hon'ble Supreme Court has pointed out how valuable is the right of first appeal to parties and how the court below has to consider the same. Reliance was also placed on the decision of the Hon'ble Supreme Court in H. Siddiqui (Dead) by its LR s vs. A. Ramalingam, (2011) 4 CTC 343. 29. After taking note of the aforementioned decisions, the Court pointed out that there is no independent appraisal of evidence by the lower appellate court and no independent reasons were found, except recording general expression of concurrence with the trial court, which in the opinion of the Court was held to be superficial and non application of mind by the lower appellate court. Accordingly, the second appeal was allowed, the judgment and decree of the lower appellate court was set aside and the matter was remanded back for fresh consideration in accordance with Order 41 Rule 31 C.P.C uninfluenced by any observation made in the judgment. On remand, the lower appellate court has taken up the matter for consideration and the following points were framed for consideration:- (i) Whether the properties are ancestral joint family properties or not? (ii) Whether Ex.B5 Will dated 31.03.1993 said to executed by Sengodu @ Sengoda Gounder is true and legally enforceable? (iii) Whether the plaintiff is entitled for a relief of partition of suit properties and a share of 7/18 or not? (iv) Whether the plaintiff is entitled for an order of injunction or not? 30. During the course of arguments, the learned Senior Counsel appearing for the appellant would fairly concede that the Court may restrict the decision to substantial question of law number (A). Thus, the question, that is, to be decided is as to whether the property was an ancestral joint family property or a separate property of the members in whose favour the property has been released. On a perusal of the evidence, both oral and documentary placed before the trial court, it is seen that the plaintiff has stated that all the properties belong to her father Sengodu @ Sengoda Gounder and they were ancestral properties and partition took place between Sengodu @ Sengoda Gounder and his brother Chinnappa Gounder on 12.05.1981, Ex.B3. 31. On a perusal of the evidence, both oral and documentary placed before the trial court, it is seen that the plaintiff has stated that all the properties belong to her father Sengodu @ Sengoda Gounder and they were ancestral properties and partition took place between Sengodu @ Sengoda Gounder and his brother Chinnappa Gounder on 12.05.1981, Ex.B3. 31. Much reliance was placed on the recitals in Ex.B1, the Release Deed, which appears to be the sheet anchor of the appellant/1st defendant. Likewise, the recitals in Ex.B3 dated 12.05.1981, the Partition Deed, was also taken into consideration and on a reading of the extracted portions of those documents, which were noted by the lower appellate court, it is evident that the properties are ancestral joint family properties. The father, Kolandianna Gounder, had executed a Release Deed in favour of his sons Sengodu @ Sengoda Gounder and Chinnappa Gounder. The other brother Muthusamy has sold his share in the joint family property in favour of Sengodu @ Sengoda Gounder. 32. After going through the decisions of the courts below, I am fully convinced that the finding recorded by the lower appellate court that the recitals in Exs.B1 to B3, which were documents exhibited by the appellant/1st defendant, would clearly go to form a case of the plaintiff that the suit properties are joint family ancestral properties from which, the father Sengodu @ Sengoda Gounder acquired title. Equally, the lower appellate court is right in recording a finding that Ex.B3 can be construed in such a manner to support the case of the appellant/1st defendant that the properties acquired a character of self-acquired properties. The lower appellate court while taking into consideration the evidence of DW1, the appellant/1st defendant, pointed out that his evidence was evasive about the contents of Exs.B1 and B2, which were documents produced and marked by him. Therefore, the lower appellate court, on appreciation of the evidence, held that the appellant/1st defendant has full knowledge that the suit properties are properties, which are ancestral and joint family properties which devolved from Kolandianna Gounder. 33. At this juncture, it would be relevant to take note of the evidence of DW1 during the course of cross examination. "xxx xxx xxx" 34. It is also relevant to take note of the evidence of DW3-S.Sellammal, who had fallen to depose. "xxx xxx xxx" 35. 33. At this juncture, it would be relevant to take note of the evidence of DW1 during the course of cross examination. "xxx xxx xxx" 34. It is also relevant to take note of the evidence of DW3-S.Sellammal, who had fallen to depose. "xxx xxx xxx" 35. Thus, the lower appellate court on considering the oral and documentary evidence, in my considered view, rightly recorded a finding that the suit properties are a portion of the ancestral joint family properties and not self-acquired properties acquired by Sengodu @ Sengoda Gounder. The evidence of DW3 clearly established that all the properties are enjoyed in common by the family. The decision in the case of Ammalu Ammal may not render any assistant to the case of the appellant for the following reasons:- 36. In the said decision, it was held that it is not the nomenclature which the parties adopt for the deed that determines the character of the document. It is their intention that is expressed. Though the parties might have used the word 'release', if the intention to vest by the document any rights which executant of the document has, in the claimant, is clear, there is no reason why the instrument should not be treated as a conveyance of these rights. 37. In the instant case, it is not only the instrument or the documents, which were marked on the side of the 1st defendant but, also the evidence of the defence witnesses viz., DW1 to DW3 which includes the appellant herein clearly shows that the properties were treated as joint family properties. Furthermore, the lower appellate court had taken note of the evidence of DW2, which is to the following effect:- "xxx xxx xxx" 38. Nextly, the lower appellate court took into consideration the effect of Ex.A4, the Partition Deed dated 17.03.1993. 39. After going through the recitals of the document, relevant portion of which has been extracted in the judgment of the lower appellate court, it is clear that the properties remained as ancestral joint family properties till 17.03.1993. Therefore, the lower appellate court was fully right in holding that the appellant/1st defendant cannot claim that the suit properties are self-acquired properties of his father Sengodu @ Sengodu Gounder. Thus, the finding recorded by the lower appellate court, regarding the status of the property, is just and proper and calls for no interference. 40. Therefore, the lower appellate court was fully right in holding that the appellant/1st defendant cannot claim that the suit properties are self-acquired properties of his father Sengodu @ Sengodu Gounder. Thus, the finding recorded by the lower appellate court, regarding the status of the property, is just and proper and calls for no interference. 40. In the result, the appellant has not made out any ground to interfere with the judgment and decree of the lower appellate court. Accordingly, this second appeal is dismissed and the substantial questions of law, framed for consideration, are answered against the appellant.