Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3882 (MAD)

G. Dharmar v. G. Jeyasekar

2018-10-23

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. KARTHIKEYAN, J. 1. The plaintiff, in O.S.No.70 of 2008 on the file of the District Munsif Court, Uthamapalayam, is the appellant herein. 2. O.S.No.70 of 2008 has been filed by the plaintiff, G.Dharmar, against his brothers, Jeyasekar, Pasupathi and Murugan and sisters Vasantha and Dhanalakshmi, seeking partition and separate possession of the 1/6th undivided share in the suit property and also for future mesne profits. The said suit came up for consideration before the District Munsif Court, at Uthamapalayam and by judgment dated 09.02.2010, the suit was dismissed. As against that judgment, the plaintiff filed A.S.No.2014 of 2010, which came up for consideration before the Sub Court, Uthamapalayam. By judgment dated 31.05.2010, the appeal was also dismissed. 3. Challenging that dismissal, the plaintiff has filed the present second appeal. 4. The second appeal had been admitted on the following substantial questions of law: "1. Whether the Courts below have failed to note that admission is the best piece of evidence and admitted things need not be proved under Section 58 of the Indian Evidence Act when the second respondent/ second defendant (DW1) had categorically admitted in his cross examination that his father owned ancestral properties in Kallanai Village, Thirumangalam Taluk and that the suit property had been purchased in the year 1969 by his father in his name from the sale proceeds of Ex.A19. 2. Whether the contention of the second respondent/ second defendant that the suit property was purchased as vacant site by Gurusamy is hit by Sections 91 and 92 of the Indian Evidence Act as the recitals in Ex.A3 show that there was superstructure standing in the suit property even at the time of its purchase? 3. When the appellant/plaintiff had discharged the initial burden of proof that the father of the appellant/plaintiff and the respondents/defendants had ancestral nucleus for purchasing the suit property under Exhibit A3, whether the burden of proof shifts to the second respondent/ second defendant to prove that there were antecedent debts through documentary evidence?" O.S.No.70 of 2008:- 5. The plaintiff, G.Dharmar and the five defendants were all brothers and sisters and children of Late R.S.Gurusamy. It had been stated that the suit property was land and residential building. The family of the plaintiffs were residing in the said property. The plaintiff, G.Dharmar and the five defendants were all brothers and sisters and children of Late R.S.Gurusamy. It had been stated that the suit property was land and residential building. The family of the plaintiffs were residing in the said property. It was stated that the father/Gurusamy had purchased the property from the sale proceeds of the ancestral family property at Kallanai and Thumbaikulam, in Thirumanglam Taluk. It was, therefore, stated that since the suit property had been purchased from and out of the sale made of the joint family property, in the suit property all the children of Gurusamy inherited an equal share. It was also stated that the second defendant/G.Pasupathi, taking advantage of the fact that the plaintiff and the third and fourth defendants were residing outside, obtained a settlement deed dated 02.05.2002 from the father/Gurusamy. It was further stated that the second defendant stated that he would cancel the said settlement deed. The father/Gurusamy died on 10.03.2004. The plaintiff and the other defendants demanded partition and separate possession of the suit property. The second defendant refused it is under these circumstances, the suit had been filed seeking partition and separate possession of 1/6th undivided share in the suit property. 6. The second defendant filed written statement. In the written statement, it had been stated that the father/Gurursamy voluntarily and out of free consent executed a settlement deed dated 02.05.2002 in his favour. It had been stated that the plaintiff had filed the suit only to grab the property. It had been denied that the plaintiff or other defendants demanded partition of the property. It had been stated that all the family members knew about the settlement deed. It had been stated that the ancestral property was sold only for obtaining job for the plaintiff. The plaintiff after getting the job and after marriage left the family and also demanded that his wife also be got a job. It was stated that the sale proceeds were not used for purchase of the suit property. It had also been stated that the suit property was originally purchased as a vacant land. Thereafter, the second defendant obtained loan from various friends and put up a building. It had been stated that the property is the exclusive property of the second defendant, therefore, the said suit should be dismissed. 7. The third and fourth defendants had filed separate written statements. Thereafter, the second defendant obtained loan from various friends and put up a building. It had been stated that the property is the exclusive property of the second defendant, therefore, the said suit should be dismissed. 7. The third and fourth defendants had filed separate written statements. In the written statements, it was stated that the suit property was purchased from the sale proceeds of the ancestral lands. It was stated that the second defendant took advantage of the illness of the father/Gurusamy had obtained a settlement deed. It was stated that the third and fourth defendants were also each entitled for a share in the property. 8. On the basis of the above pleadings, the learned District Munsif, Uthamapalayam framed the following issues for trial: (i) Whether the plaintiff is entitled the 1/6th undivided share in the suit property. (ii) Whether the plaintiff has a right to claim partition in the suit property. (iii) Whether the plaintiff is entitled for preliminary decree. (iv) all the other reliefs is the process entitled to 9. The following additional issues where also framed: "(i) Whether the plaintiff had paid proper court fees. (ii) Whether the suit property is a joint family property or an acquired property.? 10. During trial, the plaintiff examined himself as P.W.1 and examined another witness S.Baskaran as P.W.2. The second defendant examined himself as D.W.1 and examined himself two other witnesses, D. Suruliyandi and M. Lakshmikanth as D.W.2 and D.W.3. The plaintiff marked Ex-A1 to A21. These documents included the sale deeds dated 17.05.1967 as Ex-A1 and A2, the sale deed in favour of Gurusamy dated 16.10.1969 as Ex-A3. The settlement deed in favour of the second defendant dated 02.05.2002 as Ex.P.4, the Advocate notice issued by the plaintiff. Kambam, dated 05.02.2008 as Ex-A6, the Advocate notice issued to the defendants dated 03.02.2007 as Ex-A11, the reply given by the defendants dated 06.06.2007 as Ex-A16. The rejoinder issued by the plaintiff dated 04.02.2008 as Ex.A.17. The sale deed executed by Gurusamy dated 25.05.1967 as Ex.A.19. The defendants marked Ex-B1 to B10. These included the house tax receipts in favour of the second defendant as Ex-B2 and B3. The electricity card in the name of the second defendant as Ex.B.6. 11. The rejoinder issued by the plaintiff dated 04.02.2008 as Ex.A.17. The sale deed executed by Gurusamy dated 25.05.1967 as Ex.A.19. The defendants marked Ex-B1 to B10. These included the house tax receipts in favour of the second defendant as Ex-B2 and B3. The electricity card in the name of the second defendant as Ex.B.6. 11. During trial, Ex-X1, which is the statement of account of Kambam Co-operative Housing Society, Ex-X2, which is the certificate given by the Sub Registrar, Kambam, Ex-X3, the copy of the settlement deed in favour of the second defendant dated 02.05.2002, and Ex-X.4, is the estimate given by the Chief Engineers builders, were also marked. 12. On the basis of the oral and documentary evidence, the learned District Munsif found that the suit property stood in the name of the second defendant. The settlement deed had also been marked as a document. This deed had not been set aside by procedure known to law. It had also been found that the ancestral properties had been sold, but the evidence pointed that the proceeds when used for obtaining jobs for the plaintiff and his wife. It was also found that the suit property was the exclusive property of Gurusamy and consequently, he had every right to execute settlement deed. It also found that the settlement deed had been proved in the manner known to law by examining the attesting witnesses. In view of the said findings, the learned District Munsif, Uthamapalayam dismissed the suit. A.S.No.2410 of 2010 Sub Court, Uthamapalayam: 13. Challenging the said judgment, the plaintiff filed the above appeal which came up for consideration before the Sub Court, Uthamapalayam. 14. The learned Sub judge re-examined the evidence and framed points for determination. The learned Sub Judge found that the suit property was the exclusive property of Gurusamy. The father had purchased the same from and out of his own income. The learned Sub Judge also found that there was no correlation between the sale of the ancestral properties and the purchase of the property. The learned Sub Judge also found that Gurusamy had every right to execute settlement deed in favour of the second defendant Pasupathi. It was also found that the settlement deed had been proved in manner known to law. The learned Judge therefore held that the appeal had no merits and consequently dismissed the appeal. S.A.(MD)No.608 of 2012: 15. The learned Sub Judge also found that Gurusamy had every right to execute settlement deed in favour of the second defendant Pasupathi. It was also found that the settlement deed had been proved in manner known to law. The learned Judge therefore held that the appeal had no merits and consequently dismissed the appeal. S.A.(MD)No.608 of 2012: 15. Challenging the said judgment, the plaintiff had filed the present second appeal. As stated above, the second appeal had been admitted on the following substantial questions of law. "1.Whether the Courts below have failed to note that admission is the best piece of evidence and admitted things need not be proved under Section 58 of the Indian Evidence Act when the second respondent/second defendant (DW1) had categorically admitted in his cross examination that his father owned ancestral properties in Kallanai Village, Thirumangalam Taluk and that the suit property had been purchased in the year 1969 by his father in his name from the sale proceeds of Ex.A19. 2.Whether the contention of the second respondent/second defendant that the suit property was purchased as vacant site by Gurusamy is hit by Sections 91 and 92 of the Indian Evidence Act as the recitals in Ex.A3 show that there was superstructure standing in the suit property even at the time of its purchase? 3.When the appellant/plaintiff had discharged the initial burden of proof that the father of the appellant/plaintiff and the respondents/defendants had ancestral nucleus for purchasing the suit property under Exhibit A3, whether the burden of proof shifts to the second respondent/ second defendant to prove that there were antecedent debts through documentary evidence?" 16. Heard arguments advanced by Mr.J.Barathan, learned counsel for the appellant and Mr.K.Guhan, learned counsel for the second respondent. There was no appearance on behalf of the third and fourth respondents. Notice send to the fifth respondent had been returned as insufficient address. At any rate the second respondent was the only contesting respondent. 17. For sake of convenience, the parties would be referred as plaintiff and defendants. 18. The plaintiff had instituted the said suit seeking partition and separate possession of 1/6th undivided share in the suit property. The suit property is a residential house. It is the claim of the plaintiff that the property had been purchased from the sale of ancestral property. For sake of convenience, the parties would be referred as plaintiff and defendants. 18. The plaintiff had instituted the said suit seeking partition and separate possession of 1/6th undivided share in the suit property. The suit property is a residential house. It is the claim of the plaintiff that the property had been purchased from the sale of ancestral property. On the other hand, it is the contention of the second defendant that it was the exclusive property of the father Gurusamy. The plaintiff relied upon Ex.A.1 and Ex.A.2 which are the sale deeds of the ancestral properties, which had been executed by Gurusamy on his behalf and on behalf of his minor sons. The said properties were ancestral properties and that the said properties were sold cannot be disputed in view of Ex.A.1 and Ex.A.2. But, the burden was on the plaintiff to prove that the consideration received form the sale of those properties were used to purchase the suit property. Ex.A.1 and Ex.A.2 are the sale deeds executed by Gurusamy and his sons. In the said sale deeds, it had been stated that the properties are being sold by Gurusamy on his behalf and on behalf of this minor sons. They are dated 25.05.1967. Ex.A4 is the settlement deed executed by Gurusamy in favour of the second defendant. In the said document, it had been stated that out of love and affection, the property is being settled in favour of the second defendant. 19. It is seen that the plaintiff had not filed any suit seeking to set aside the said settlement deed. The settlement deed had been attested by two persons. D.W.3 M.Lakshmikanth, who is Assistant in Sub Registrar Office Kambam had filed an affidavit. D.W.2 is also independent witness who claimed that the property was exclusive property of the Gurusamy. It is seen that both the Courts below had given concurrent findings with respect to the nature of the suit property. They have held that the suit property is the exclusive property of Gurusamy. 20. The first substantial question of law had been framed under Section 58 of the Act on the ground that D.W.1, who is the second defendant had admitted that the Gurusamy had ancestral property in Kambam Village, Thirumangalam. They have held that the suit property is the exclusive property of Gurusamy. 20. The first substantial question of law had been framed under Section 58 of the Act on the ground that D.W.1, who is the second defendant had admitted that the Gurusamy had ancestral property in Kambam Village, Thirumangalam. That statement would not help the case of the plaintiff, unless, it is shown that the sale proceeds of the ancestral property had been used directly for the purchase of the suit property. There is no evidence in that regard. 21. The second substantial question of law was with respect Ex.A.3, which reveals that there was a construction standing on the suit property even at the time of purchase. This aspect would also not help plaintiff since the suit property has described in the plaint as residential building were all the members of the family had resided. 22. The third substantial question of law is whether the plaintiff had discharged his burden of proof with respect to purchase of the suit property under Ex.A.3. Ex.A.3 is a sale deed in favour of Gurusamy with respect of the suit property. It is dated 16.10.1969. R.S.Gurusamy was the purchaser of the suit property. He had purchased the land for a sum of Rs. 1,000/-. It is therefore, clear that only the land was purchased under Ex.A.3. Thereafter, the building was constructed. This also has been established by both court below. 23. A very significant pleading in the written statement of the second defendant, and which has also been spoken about in evidence is that the proceeds of the sale of the ancestral properties were actually used to 'purchase' jobs for both the plaintiff and his wife. Having taken undue advantage of the beneficial nature of his father, the plaintiff cannot turn around and claim innocence and plead ignorance and seek indulgence from this Court. I hold that the findings of both the courts below on facts require no interference. 24. In view of the concurrent findings of both the trial Court and the first appellate Court, the second appeal stands dismissed with costs. The judgment and decree dated 28.07.2011 passed in A.S.No.24 of 2010 on the file of the Subordinate Court, Uthamapalayam is confirmed. The judgment and decree dated 09.02.2010 passed in O.S.No.70 of 2008 on the file of the District Munsif, Uthamapalayam, is also confirmed. The judgment and decree dated 28.07.2011 passed in A.S.No.24 of 2010 on the file of the Subordinate Court, Uthamapalayam is confirmed. The judgment and decree dated 09.02.2010 passed in O.S.No.70 of 2008 on the file of the District Munsif, Uthamapalayam, is also confirmed. Consequently, connected miscellaneous petition is closed.