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2018 DIGILAW 4543 (MAD)

R. Ramanathan v. R. Kannan

2018-12-18

R.SUBRAMANIAN

body2018
JUDGMENT : (Prayer: The First Appeal has been filed under Section 96 of Civil Procedure Code against the Judgment and Decree dated 24.07.2002 made in O.S.No.171 of 1998 on the file of the Subordinate Court, Sivagangai.) 1. The sole defendant in O.S.No.171 of 1998 on the file of the Subordinate Court, Sivagangai is the appellant. 2. The suit was filed by the plaintiffs/respondents herein seeking partition and separate possession of their 2/3rd share in the suit property. According to the plaintiffs, the 1st item in suit 'A' schedule property belonged to one Rajamani Pillai, father of the first plaintiff and the defendant. The suit 2nd item was purchased by the Rajamani Pillai. The plaintiffs would contend that the Rajamani Pillai, who was doing vegetable vending business in Sivagangai, died in the year 1955 when the defendant was aged about 15 years, the husband of the second plaintiff, the father of the plaintiffs 3 to 6, namely, Rajeswaran, was aged about 9 years, the first plaintiff namely, Kannan who is the third son was born 6 months after the death of Rajamani Pillai. 3. The plaintiffs would further contend that the vegetable business carried on by Rajamani Pillai was continued by the defendant, being the eldest son and the other two sons namely, Rajeswaran and the first plaintiff joined him in the said business at a later point of time. Because of the joint efforts of the three sons, the vegetable business wan run profitably and the suit properties were purchased out of the income from the said business. It is their further contention that the Rajamani Pillai sold item No.1 of the suit schedule property in the year 1953 under Ex.B2 to one Muruga Thevar. The said sale deed is a sham and nominal document executed to provide security for vegetable business. Muruga Thevar on 21.05.1961 re-conveyed the said property under Ex.B3. The sale deed was taken in the name of the defendant. 4. Claiming that all the suit properties are the properties purchased out of the income from the vegetable business which was continued by the sons of Rajamani Pillai, the plaintiffs have come forward with the suit seeking 2/3rd share. 5. The suit was resisted by the defendant contending that Rajamani Pillai did not leave any cash or movable property, apart from the suit items 1 and 2 which were non income yielding properties. 5. The suit was resisted by the defendant contending that Rajamani Pillai did not leave any cash or movable property, apart from the suit items 1 and 2 which were non income yielding properties. The defendant would further contend that he carried on vegetable business on his own and the first plaintiff and the other brother Rajeswaran were employed by him and were paid salaires for the services rendered by them. Therefore, according to the defendant, the suit item-1 which was alienated by Rajamani Pillai in the year 1953 was re-purchased by him in the year 1961 out of his own money. As regards 'B' schedule property, the sale deeds stand in the name of the defendant. The defendant would contend that those properties purchased out of the income from his own business in vegetables. Therefore, the plaintiffs cannot claim any right over the same. 6. Insofar as the 2nd item of 'A' schedule property is concerned, the defendant would admit that it belonged to Rajamani Pillai and claimed that he has perfected title by adverse possession. According to him, the plaintiffs were ousted from its enjoyment for over a statutory period and therefore, they cannot claim any share in the said property. On the above contentions, the defendant sought for dismissal of the suit. 7. On the above pleadings, the learned Subordinate Judge framed the following issues: “LANGUAGE” 8. On the side of the plaintiffs, first plaintiff Kannan was examined as P.W.1, two of the cousins namely, Vijayarani and Nagarajan were examined as P.W.2 and P.W.3 respectively. Exhibits A1 to A12 were marked. On the side of the defendant, the defendant himself was examined as D.W.1. One Palanichamy was examined as D.W.2 and one Jeyasankar was examined as D.W.3. Exhibits B1 to B35 were marked. 9. The learned Subordinate Judge on consideration of the evidence concluded that the suit properties were purchased in the name of the defendant from and out of the income from the vegetable business which was carried on jointly by three brothers. In coming to the said conclusion, the learned Subordinate Judge relied upon the evidence of P.W.2 and P.W.3 who were admittedly cousins of the first plaintiff and the defendant and were acquainted with the affairs of the family. 10. In coming to the said conclusion, the learned Subordinate Judge relied upon the evidence of P.W.2 and P.W.3 who were admittedly cousins of the first plaintiff and the defendant and were acquainted with the affairs of the family. 10. The learned Subordinate Judge also took note of the certain vital admissions made by the defendant, in the course of his cross examination to buttress her conclusion regarding the nature of the parties. The learned Subordinate Judge had rejected the plea of ouster set up by the defendant with reference to the item No.2 of 'A' schedule properties. Insofar as item No.1 in the schedule 'A' property is concerned, the learned Subordinate Judge concluded that the sale deed executed by the said Rajamani Pillai in favour of Muruga Thevar was only a nominal document for the purpose of security and therefore, the reconveyance of the property though in the name of the defendant, would be for the benefit of all the three sons of Rajamani Pillai. On the said conclusions, the learned Subordinate Judge decreed the suit as prayed for. Aggrieved, the defendant is on appeal. 11. I have heard Mr. V.K. Vijayaraghavan, learned counsel appearing for Mr. S. Srinivasaraghavan, learned counsel for the appellant and Mr. M. Mohana Sundaram, learned counsel appearing for respondents. 12. Mr. V.K. Vijayaraghavan, learned counsel appearing for the appellant would strenuously contend that in the absence of any proof regarding existence of joint family properties and evidence as to availability of nucleus, the learned trial Judge was not justified in concluding that the suit properties are coparcenary properties or joint properties of the three brothers. Relying upon the evidence of P.W.1 who had deposed in chief examination that his father Rajamani Pillai did not leave any cash or movable properties at the time of his death, Mr. V.K. Vijayaraghavan would further contend that the vegetable business carried on by the defendant after the death of Rajamani Pillai should be treated to be his own business and the first plaintiff and the deceased Rajewaran were only employees under him. He would further contend that there is total lack of evidence on the side of the plaintiffs to establish the fact that the vegetable business of the father was continued by the defendant and the other sons of Rajamani Pillai, namely, the first plaintiff and the deceased Rajeshwaran had no right over the business. 13. Mr. He would further contend that there is total lack of evidence on the side of the plaintiffs to establish the fact that the vegetable business of the father was continued by the defendant and the other sons of Rajamani Pillai, namely, the first plaintiff and the deceased Rajeshwaran had no right over the business. 13. Mr. V.K. Vijayaraghavan, learned counsel would also invite my attention to the judgment of the Hon'ble Supreme Court in A.I.R 1968 SC 1276 (G.Narayana Raju (died) by his legal representative, Vs. G.Chamaraju and others) wherein the Hon'ble Supreme Court held that “there is no presumption that a business standing in the name of any member of joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or the joint family estate, the business remains free and separate”. 14. He would also rely upon observations of the Privy Council in Sitaram Vs. Must. Munni Bibi reported in 55 L.W. 444 wherein the Privy Council has held that where ancestral property which was lost to the family has been re-purchased by the father out of his own separate monies, the property so re-purchased becomes his self-acquired property over which he has the power of testamentary disposition the exercise of which would be binding upon one alleged to have been adopted by him. 15. Arguing further Mr. V.K. Vijayaraghavan, learned counsel for the appellant would submit that unless the plaintiffs had contributed some capital towards the business, the business cannot be assumed to be a joint family business. He would also rely upon the following judgments of the Division Benchs of this Court; (1) Salem Town Bazaar Street Vs. T.K. Sadasivam Chettiar reported in 1980 2 MLJ 435 and (2) Kokila Vs. Swathanthira and others reported in 2004 3 L.W. 60 and the following judgments of the learned Single Judge of this Court (1) Kasthuri Naidu (died) and 6 others Vs.N.Padmanabhan and 3 others reported in 1998-2-L.W.175 and (2) S.Krishnamurthy Vs.S.Venugopal and 13 others reported in 1996 1 L.W 663. Swathanthira and others reported in 2004 3 L.W. 60 and the following judgments of the learned Single Judge of this Court (1) Kasthuri Naidu (died) and 6 others Vs.N.Padmanabhan and 3 others reported in 1998-2-L.W.175 and (2) S.Krishnamurthy Vs.S.Venugopal and 13 others reported in 1996 1 L.W 663. to contend that the essential requirements are availability of joint family nucleus and proof the joint exertion by the coparceners, proof of continuity of business and proof of joint family exertion by the other members are necessary to enable the Court to conclude that the business carried on by one of the members of the joint family is a joint family business or a joint business. 16. Per contra, Mr. M. Mohanasundaram, learned counsel appearing for the respondents would submit that at the time of death of Rajamani Pillai, the defendant himself was aged about 15 years and the deceased Rajeswaran was aged about 9 years, the first plaintiff was in fact born after the death of Rajamani Pillai. He would however submit that the evidence of P.W.2 and P.W.3 who were admittedly relatives and uninterested witnesses, coupled with the admissions made by DW1 in his cross examination would show that the business that was carried on by the defendant in vending vegetable business in Sivagangai was a continuation of the business of his father, the brothers had been taking active part in the business by procuring vegetables from Madurai and they have involved themselves in the business. 17. He would also point out to the admitted position that all the three of them were living under one roof till 1985 and the deceased Rajeswaran took up separate residence in view of certain skirmishes between the womenfolk. He would also point out that the first plaintiff continued to live with the defendant till 1999. Further, he would invite my attention to the fact that the marriages of the first plaintiff as well as Rajeswaran were performed by the defendant and the defendant being the eldest son was almost treated like a father and the younger brothers obeyed his commands for over nearly 50 years after the death of their father. Further, he would invite my attention to the fact that the marriages of the first plaintiff as well as Rajeswaran were performed by the defendant and the defendant being the eldest son was almost treated like a father and the younger brothers obeyed his commands for over nearly 50 years after the death of their father. Therefore, according to the learned counsel for the respondents, the evidence available on record would conclusively establish that the business was only a continuation of business of Rajamani Pillai and after his death, the first plaintiff as well as the deceased Rajeswaran had been taking very active part in the business and all the suit properties were purchased from and out of the income of the vegetable business except item No.2 in 'A' schedule properties. 18. As regards item No.2 of 'A' schedule property, learned counsel would contend that the defendant has not made out the plea of ouster since he has admitted that the first plaintiff and the deceased Rajeswaran were living with him through out in his house. 19. I have considered the rival submissions. 20. On the above contentions, the following points arise for determination in this appeal:- “1. Whether the business carried on by the defendant was a continuation of the business of Rajamani Pillai? 2. Whether the first plaintiff and the deceased Rajeswaran were only employers under the defendant in the said business or they have taken active part as members of the family? 3. Whether the defendant could be said to have ousted the plaintiffs from the enjoyment of item No.2 of the suit 'A' schedule property? 4. Whether the suit properties were purchased from and out of the income from the vegetable business which was carried on by the parties?” Point No.I 21. It is the firm case of the plaintiffs that on the death of Rajamani Pillai in the year 1955, the defendant who aged about 15 years continued the business carried on by his father and was taking care of the same. The deceased Rajeswaran who studied up to 8th standard had joined in the business and has also worked along with the defendant to improve the business. The defendant would on the other hand, deny the fact that the business was continuation of the business was carried on by his father. The deceased Rajeswaran who studied up to 8th standard had joined in the business and has also worked along with the defendant to improve the business. The defendant would on the other hand, deny the fact that the business was continuation of the business was carried on by his father. According to him, it is altogether new business and the first plaintiff and the deceased brother Rajeswaran had employed under him and they were paid salaries for the services rendered by them. 22. A reading of the evidence of P.W.1 would show that he was born after the death of Rajamani Pillai. Naturally, he was very young and he was not fully acquainted with the happenings in the family. Unfortunately, the other brother Rajeswaran had died. Therefore, the plaintiffs had to look upon for some other evidence which was available to them in the form of the evidence of P.Ws.2 and 3. 23. P.W.2, who is the cousin sister of the first plaintiff and the defendant had deposed that she was aware of the happenings in the family. She had stated that the sale deed dated 10.08.1953 was executed in favour of Muruga Thevar as security since Rajamani Pillai was doing vegetable business through Muruga Thevar who was the wholesale trader in vegetables at Madurai. She had also stated that her father had taken care of the business for some time. It is also her evidence that her father repurchased the property from Muruga Thevar under sale deed dated 21.05.1961 which was marked as Ex.B4. She would also further depose that the repurchase was negotiated only at her residence. Of course, Mr. V.K. Vijayaraghavan would also rely upon the cross examination of P.W.2 where she has stated that Rajamani Pillai did not leave any cash at the time of his death. Relying upon the said evidence, Mr. V.K. Vijayaraghavan would contend that in the absence of any evidence to show that Rajamani Pillai had left some cash, the contention of the plaintiffs that the said business of Rajamani Pillai was continued by the defendant cannot be upheld. 24. P.W.2 in her cross examination has also deposed that the deceased Rajeswaran had set up separate residence in 1992 and the first plaintiff Kannan had set up separate residence in 1995. 24. P.W.2 in her cross examination has also deposed that the deceased Rajeswaran had set up separate residence in 1992 and the first plaintiff Kannan had set up separate residence in 1995. She would also add that even after their setting up separate residence, the defendant used to pay money, regularly, for their expenses and he also shared the income from the vegetable business. According to her, despite the fact that they had set up separate residence in 1992 and 1995, the 1st plaintiff and the deceased Rajeswaran were assisting the defendant in continuing the business. Therefore, the sum and substance of the evidence of P.W2 is to the effect that the business was carried on by the Rajamani Pillai was continued by the defendant with the active assistance by the first plaintiff and the deceased Rajeswaran. Though P.W.2 has been extensively cross examined, I do not find that her evidence in chief examination has been discredited during the cross examination. 25. P.W.3 one Nagarajan is also a cousin of the parties. It is not suggested that P.W.3 is in any way inimical towards the defendant. In his chief examination he has deposed that he has worked in the vegetable business belonging to the defendant and the first plaintiff and the deceased Rajeswaran between 1994 and 1999. It is also stated that the first plaintiff and the deceased Rajewaran were doing business along with the defendant as members of the family and they were not salaried employees. The said witness in his cross examination deposed that he does not know the specific details of the investments made by each of the members of the family for the said business. He has denied the suggestion that defendant paid salary of Rs.3000/- per month to the Rajeswaran. 26. The defendant who has been examined as D.W.1 in his chief examination deposed that he has started vegetable business even from the age of 10 years. He had also deposed as follows: “LANGUAGE” 27. This evidence of the defendant, in my considered opinion, demolishes his plea that neither the 1st plaintiff nor the deceased Rajeswaran, had contributed anything towards capital and therefore, they are not entitled to claim share in the business. Even according to him, the business does not require capital investment and he would procure vegetables on credit basis and pay the vendors after selling the vegetables. 28. Even according to him, the business does not require capital investment and he would procure vegetables on credit basis and pay the vendors after selling the vegetables. 28. He would also specifically admit that despite the sale of the 1st item of the suit schedule property in 1953 in favour of Muruga Thevar, they continued to be in possession of the said property. Of course, he would add that they continued in possession with permission of Muruga Thevar. Certain documents namely mortgage deed executed by the defendant with reference to the suit 1st item were relied upon to would show that the defendant had dealt with those properties as owner thereof. Admittedly, the property was repurchased in the year 1961 in the name of the defendant and the defendant was the ostensible owner. The mortgage deed under Ex. B6 relied upon by the defendant is dated 25.06.1961 and the same had been discharged on 24.04.1964. A second mortgage was made over the very same property on 24.04.1964 under Ex.B7. Admittedly, the first plaintiff was a minor at that time and the deceased Rajeswaran, was aged about 9 years in 1955 would not have attained majority in 1961 and 1964. Therefore, the said acts alone i.e., mortgaging of the property in the years 1961 and 1964 by the defendant may not be of any use to the defendant to contend that he has exercised rights as absolute owner of the property. 29. There is yet another mortgage created in the year 1999 by the defendant on 21.09.1999. Admittedly, the suit came to be filed in 1998 and therefore, the said mortgage by itself cannot be taken as an act of assertion of ownership of the property by the defendant. The evidence of the defendant in cross examination, in my opinion, strengthens the case of the plaintiffs. During cross examination, the defendant has deposed as follows: “LANGUAGE” 30. In the later part of cross examination, the defendant has deposed as follows: “LANGUAGE” 31. The above evidence of D.W.1 in cross examination would exclusively go to show that the brothers namely, the first plaintiff and the deceased Rajeswaran had taken active part and the business was not a new business commenced by the defendant after the death of his father. It was a continuation of the old business and the same was not divided. The above evidence of D.W.1 in cross examination would exclusively go to show that the brothers namely, the first plaintiff and the deceased Rajeswaran had taken active part and the business was not a new business commenced by the defendant after the death of his father. It was a continuation of the old business and the same was not divided. Of course, D.W.1 would claim that he had paid salaries to the first plaintiff and the deceased Rajeswaran. He has also conceded that there is no evidence for payment of salaries of Rajeswaran. As regards Kannan, the first plaintiff, the defendant would rely upon Ex.B1 to show that he has paid salaries to Kannan. Ex.B1 is the account book maintained for the business. There are certain entries which would show that Rs.100/- has been paid to Kannan. These entries are relied upon by the defendant to show that the first plaintiff was only employed in the business. But the admissions of the defendant in his cross examination coupled with the evidence of P.W.3 who has deposed that whoever goes to procure vegetables from Madurai will be paid Rs.100/- by the defendant would weaken the evidentiary value of Ex.B.1. 32. From the evidence extracted above, it is clear that the defendant himself, has at one point of time, during cross examination conceded that whoever goes to procure vegetables, will be paid Rs.100/- as batta. But, he would later add that it is salary. Yet another factor noteworthy of is the evidence of D.W.1, in his cross examination, he has stated that a room has been rented at Madurai to enable the person who goes to procure vegetables to stay overnight and the lease for the said room stands in the name of the first plaintiff. Throughout the evidence, he only refers to the business as our vegetable shop, no where he states that it is his vegetable business.D.W.1 would also admit that the certification of the weights and measures in the shop stood in the name of the first plaintiff till 1997. The telephone connection also stood in the name of the first plaintiff. All these admissions of the defendant would lead to the irresistible conclusion that the business that was carried on by the deceased Rajamani Pillai was continued by the defendant with the active participation of the first plaintiff and the deceased Rajeswaran. 33. No doubt, Mr. The telephone connection also stood in the name of the first plaintiff. All these admissions of the defendant would lead to the irresistible conclusion that the business that was carried on by the deceased Rajamani Pillai was continued by the defendant with the active participation of the first plaintiff and the deceased Rajeswaran. 33. No doubt, Mr. V.K. Vijayaraghavan would contend that the 1st item of the suit schedule property was repurchased in 1961, at that time, the deceased Rajeswaran was aged only 14 years old and the first plaintiff was born after the death of the father was only about 6 years old. The case of the plaintiffs is that the sale deed was executed only for security and no consideration was paid for the repurchase. P.W.2's evidence in that regard is quite convincing and reliable. Her evidence has not been discredited in cross examination. Therefore, the first point for determination is answered to the effect that the vegetable vending business carried on by the defendant with the active assistance of the first plaintiff and the deceased Rajeswaran was continuation of the business by their father. 34. Mr. V.K. Vijayaraghavan, learned counsel for the appellant would submit that there was no contribution towards capital of the business by other two brothers. In fact, the defendant himself has admitted that not much of capital is required for the business and they would buy vegetables on credit basis and sell them and thereafter, pay the vendors, therefore, the absence of capital contribution, cannot in my opinion upset the case of the defendants in the case on hand. 35. The decisions relied upon by Mr. V.K. Vijayaraghavan relate to the existence of nucleus, doctrine of blending and claims of coparceners to the properties standing in the name of one of the members of the coparcenary on the ground that they were purchased out of the nucleus from the ancestral property. The law laid down in those cases, cannot be disputed. At the same time, the case on hand is on a totally different footing where the claim is made on the ground that the business of the father was carried on by the defendant for some time, the brothers joined and the properties were purchased by joint exertion of the parties. At the same time, the case on hand is on a totally different footing where the claim is made on the ground that the business of the father was carried on by the defendant for some time, the brothers joined and the properties were purchased by joint exertion of the parties. Therefore, I am of the considered opinion that the law relating to blending or existence of nucleus cannot be applied to the case on hand. Point No.2: 36. As already discussed, the evidence of P.W.2 and P.W.3 coupled with the admission of the defendant extracted above would conclusively establish that the brothers had only taken part in the business as members of the family and not as salaried employees. The defendant himself has conceded that he used to pay them for expenses and he performed their marriages out of the income from the business. Therefore, at any stretch of imagination, it cannot be said that the two brothers were only employees of the defendant in the said business. 37. As regards the ouster with reference to item No.2 of the suit 'A' schedule property, which admittedly belonged to Rajamani Pillai. It is the place of business of the vegetable shop. The defendant himself has admitted in his evidence that the brothers were carrying on business together till 1995 and D.W.1 would admit that he has been paying for the expenses of the brothers from the income of this shop. Therefore, the defendant has not made out the essential ingredients of ouster with reference to the suit property. Knowing the difficulties in establishing a plea of ouster, Mr. V.K. Vijayaraghavan, learned counsel for the appellant would not seriously press ahead with the plea of ouster with reference to the 2nd item of 'A' schedule of the suit property. Point No.3: 38. The only avocation of the defendant is vegetable business. He has not pleaded that he had any other source of income to have purchased all these properties. He had in his evidence deposed that the suit properties were purchased out of the income from the vegetable business that was carried on by him. Point No.3: 38. The only avocation of the defendant is vegetable business. He has not pleaded that he had any other source of income to have purchased all these properties. He had in his evidence deposed that the suit properties were purchased out of the income from the vegetable business that was carried on by him. While dealing with Point No.1, it has been found that the vegetable business was a common business which was only continuation of the business carried on by the father of the first plaintiff and the defendant and therefore, the essential conclusion is that the properties were purchased from and out of the income from the business and the defendant cannot deny the plaintiffs' share in the suit properties. 39. For the foregoing reasons, this appeal fails and it is dismissed, confirming the judgment and decree dated 24.07.2002 made in O.S.No.171 of 1998 on the file of the Subordinate Court, Sivagangai. However, considering the relationship of the parties, there will be no order as to costs.