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2019 DIGILAW 3425 (MAD)

P. Rajaram v. P. Muthuraj

2019-12-16

N.SATHISH KUMAR

body2019
JUDGMENT : (Prayer: Appeal is filed under Section 96 of the Code of Civil Procedure, praying to set aside the judgment and decree dated 17.12.2018 made in O.S.No.50 of 2013 on the file of the Additional District Court (FTC), Theni.) 1. Aggrieved over the judgment and decree of the Trial Court granting partition, the present first appeal is filed. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts leading to the filing of the suit are as follows: The plaintiffs and the defendant are the legal heirs of one Punniyamoorthy. The plaintiffs 1 and 2 and the defendant are the brothers. The third plaintiff is the wife of Punniyamoorthy and mother of the plaintiffs 1 and 2 and the defendant. The suit property was originally purchased as a vacant site by the said Punniyamoorthy and he has borrowed a loan from the Co-operative Society. The first plaintiff stood as a guarantor and he repaid the loan of Rs.3,19,000/- as on 30.06.2006. The suit property was enjoyed by them as a joint family property without any partition. As there was a dispute arose between the parties, there was a mediation. Pursuant to the same, a partition deed was executed between Punniyamoorthy and the plaintiffs 1 and 2 and the defendant. Thereafter, as there was a dispute arose settling the loan amount, the registered partition deed was cancelled by Punniyamoorthy and the first plaintiff on 17.10.2006. The said Punniyamoorthy died on 17.03.2011. When the plaintiffs demanded amicable partition, the defendant refused to agree for partition. Thus, the plaintiffs have issued a legal notice to the defendant on 22.08.2013, for which, the defendant sent a reply notice stating that his father Punniyamoorthy executed a gift settlement deed in his favour on 11.04.2008 in respect of the suit property. The gift deed is not valid and null and void. Hence, the suit for partition. 4. The sole defendant filed a written statement stating that the father of the defendant Punniyamoorthy has earned huge wealth during his life time through Jewellery workshop profession. He has obtained housing loan from the Co-operative Society by pledging the title deed of vacant site. The first plaintiff was not the single guarantor for the loan obtained by Punniyamoorthy. The defendant was also a guarantor for the loan amount. He has obtained housing loan from the Co-operative Society by pledging the title deed of vacant site. The first plaintiff was not the single guarantor for the loan obtained by Punniyamoorthy. The defendant was also a guarantor for the loan amount. The first plaintiff has created false documents and registered partition was effected on 04.04.2006. On that date itself, uneven partition was set right and it was also settled to repay the loan amount and it was signed by the first plaintiff and the defendant. As the first plaintiff has not acted upon, as per the terms of the partition deed, it was questioned by the defendant. Hence, the first plaintiff has cancelled the partition deed with mala fide intention. The said Punniyamoorthy had executed a Will dated 13.07.2007 in favour of the defendant. Thereafter, he also executed a gift settlement deed in favour of the defendant on 11.04.2008 in respect of a portion allotted to the defendant in the partition deed dated 04.04.2006. The third plaintiff does not know the details of the case. The third plaintiff was maintained by the defendant. A portion of the suit property was obtained by the defendant as per the gift settlement deed executed by his father Punniyamoorthy and it is his separate and exclusive property. Even though Punniyamoorthy has left the Will in respect of the entire property, the defendant is not claiming any right on the basis of the Will. The defendant has also repaid a sum of Rs.1,25,000/- and redeemed the mortgage created by Punniyamoorthy. He has also paid Rs.1,00,000/- to repay the loan amount obtained by Punniyamoorthy. The plaintiffs 1 and 2 have received Rs.1,25,000/- by executing a mortgage deed in respect of a portion of the suit property. Hence, he prayed for dismissal of the suit. 5. Based on the above pleadings, the Trial Court framed the following issues: (1) Whether the plaintiffs are entitled to 3/4th share in the suit properties? (2) Whether the gift settlement deed dated 11.04.2008 is liable to be declared as null and void? (3) Whether the plaintiffs are entitled to the preliminary decree for partition as prayed for? (4) Whether the plaintiffs are entitled to the declaration relief as prayed for? (5) Whether the plaintiffs are entitled to mesne profits as prayed for? (6) To what other relief and cost, the plaintiffs are entitled? 6. (3) Whether the plaintiffs are entitled to the preliminary decree for partition as prayed for? (4) Whether the plaintiffs are entitled to the declaration relief as prayed for? (5) Whether the plaintiffs are entitled to mesne profits as prayed for? (6) To what other relief and cost, the plaintiffs are entitled? 6. Before the Trial Court, on the side of the plaintiffs, two witnesses were examined as P.W.1 and P.W.2 and 23 documents were marked as Exs.A.1 to A.23. On the side of the defendant, the defendant himself was examined as D.W.1 and Exs.B.1 to B.12 were marked. 7. The Trial Court found that the vacant site of the suit property though purchased by Punniyamoorthy, the same was treated as joint family property and the partition deed was executed by Punniyamoorthy. However, as there was a dispute arose between Punniyamoorthy and his sons, partition deed was cancelled by Punniyamoorthy and the first plaintiff on 17.10.2006. Though Ex.A.1 was written as a partition deed, the same was not acted upon. The property was treated as joint family property even after the execution of Ex.A.1. Hence, the suit property is liable to be treated as joint family property. Further, the Trial Court was of the view that the gift settlement deed executed by Punniyamoorthy in favour of the defendant in respect of 1/2 portion of the suit property is not a valid document, since Punniyamoorthy has no right to execute a settlement deed and granted preliminary decree to the effect that the plaintiffs 1 and 2 are equally entitled to 5/16 share each (1/4 i.e. 4/16 + 1/16) and the third plaintiff is entitled to 1/16 share and thus, the plaintiffs are totally entitled to 11/16 share [5/16 + 5/16 + 1/16] and the defendant is also entitled to 5/16 share in the suit property. Further, the gift settlement deed dated 11.04.2008 executed by Punniyamoorthy in favour of the defendant is declared as null and void. Aggrieved over the same, the present appeal is filed. 8. The learned counsel appearing for the appellant submitted that though there was a registered partition deed effected between the father and three sons, the partition deed has been cancelled immediately by the father and the first plaintiff alone. In the partition deed, a portion of the suit property was allotted to the defendant. The partition once executed cannot be unilaterally cancelled. In the partition deed, a portion of the suit property was allotted to the defendant. The partition once executed cannot be unilaterally cancelled. But, in any event, it is the contention that in respect of a portion allotted in the partition deed, Punniyamoorthy, father of the defendant, has executed a gift settlement deed in favour of the defendant and a settlement deed has been acted upon. Therefore, the plaintiffs cannot claim any share. It is his contention that the allegation that the gift settlement deed is not valid, is without any basis. There is no pleading in the plaint with regard to the fraud or alleged undue influence, etc. The execution of the gift settlement deed is also not disputed. Hence, it is his contention that the judgment of the Trial Court, rejecting the gift settlement deed as without any basis, needs to be interfered and hence, he prayed for allowing the appeal. 9. Whereas, it is the contention of the learned counsel appearing for the respondents that though the property was purchased by the father of the plaintiffs 1 and 2 and the defendant, the property all along is treated as joint family property. Even the defendant has admitted that the property is treated as joint family property. Though the partition deed was effected between the parties, the same was not acted upon. Hence, it is his contention that the Trial Court has rightly found that the partition deed has not been acted upon and any gift in respect of joint family properties is not valid. Hence, the judgment of the Trial Court is well balanced and it does not require any interference. 10. In the light of the above submissions, the points that arose for consideration in this appeal are: "(i) Whether the suit property is treated as a joint family property by the father and three sons? (ii) Whether the unilateral cancellation of partition deed Ex.A.2 by Punniyamoorthy and the first plaintiff alone is valid and binding; and (iii) If the partition deed is valid, whether such partition is acted upon by the parties? And (iv) Whether the gift settlement deed Ex.B.5 dated 11.04.2008 is valid and the defendant has derived any title. 11. The suit property was originally purchased by Punniyamoorthy as vacant site. This fact is not in dispute. And (iv) Whether the gift settlement deed Ex.B.5 dated 11.04.2008 is valid and the defendant has derived any title. 11. The suit property was originally purchased by Punniyamoorthy as vacant site. This fact is not in dispute. It is admitted by both sides that the father put up a construction by availing loan from the Co-operative Society. It is the case of the first plaintiff that he stood as a guarantor and he repaid the loan amount. Therefore, the property is treated as joint family property. Whereas, it is the contention of the defendant that not only the first plaintiff, he has also stood as a guarantor and he has repaid the loan amount. The nature of the property is not in dispute. It is the specific case of the plaintiffs that the property has been treated as joint family property. In the entire written statement, it is not specifically denied as to the character of the property by the defendant. Whereas, it is the contention of the defendant that on 04.04.2006, the property has been partitioned and a portion of the property was allotted to the defendant and another portion was allotted to the first plaintiff. However, as the first plaintiff has not acted as per the terms of the partition deed, when the same was questioned by the defendant, the first plaintiff fraudulently cancelled the partition deed with the help of the father. Thereafter, the father, taking note of the harassment caused by the plaintiffs 1 and 2, has executed a Will in favour of the defendant on 13.07.2007 and also executed a gift settlement deed dated 11.04.2008 in respect of a portion allotted in the partition deed in favour of the defendant. Hence, it is his contention that he is entitled to the above portion and also entitled to share in the remaining portion of the property. The evidence of witnesses, namely P.W.1, D.W.1 and P.W.2, when carefully seen, though the vacant site has been purchased by Punniyamoorthy, housing loan was obtained by him for the purpose of construction. The evidence of D.W.1 also indicates that Punniyamoorthy, at the time of obtaining loan, was aged about 70 years. Exs.A.6 to A.20 filed by the plaintiffs and the evidence of P.W.1 clearly indicates that some portion of the loan has been repaid by the first plaintiff. The evidence of D.W.1 also indicates that Punniyamoorthy, at the time of obtaining loan, was aged about 70 years. Exs.A.6 to A.20 filed by the plaintiffs and the evidence of P.W.1 clearly indicates that some portion of the loan has been repaid by the first plaintiff. Similarly, Exs.B.4 and B.12 filed on the side of the defendant also clearly indicate that the defendant also paid some amount towards the repayment of loan amount. The possession of receipts by the first plaintiff as well as the defendant clearly proved the fact that both of them paid the loan amount. These facts clearly indicate that the property though purchased by Punniyamoorthy as a vacant site, all the sons in fact stood as guarantors, which has been proved under Ex.A.23. This fact clearly shows that Punniyamoorthy has in fact treated the property as joint family property though purchased by him. This fact is further fortified by the very admission of Punniyamoorthy in Ex.A.1- partition deed dated 04.04.2006, wherein, it is specifically stated by Punniyamoorthy that the property is all along treated as joint family property. Ex.A.2 is the cancellation of partition deed dated 17.10.2006. In Ex.A.2 also, it is the specific case of Punniyamoorthy that the property has been treated as joint family property, however, cancelled the partition, since the parties are intending to enjoy the property as joint. The very admission of the father in Exs.A.1 and A.2 as to the character of the property, clearly proves the one fact that though he has purchased the property as vacant site, he has blended and treated the same as joint family property. 12. It is well settled that treating the separate property as joint family property among the members of the Hindu family is not alien to practice and culture among Hindus. Further, the evidence of P.W.1 also indicates that the property is all along treated as joint family property. D.W.1, in his evidence, particularly, in the cross-examination, has categorically admitted not in once and several places, that the property is treated as joint family property. He has specifically admitted that the property is a joint family property. He has also admitted that even at the time of partition, father was aged and he had no independent income. D.W.1, in his evidence, particularly, in the cross-examination, has categorically admitted not in once and several places, that the property is treated as joint family property. He has specifically admitted that the property is a joint family property. He has also admitted that even at the time of partition, father was aged and he had no independent income. When the parties themselves admitted that the property is treated as joint family property, the finding of the Trial Court that the property was treated as joint family property cannot be faulted with. 13. Now, it is the contention of the learned counsel appearing for the appellant that the cancellation of partition deed is not valid in law. No doubt, under Ex.A.1, the property was in fact allotted only to the defendant and the first plaintiff. Whereas, the father of the parties was given only Rs.50,000/-. Similarly, the second plaintiff was allotted Rs.50,000/-. Under Ex.A.2, only the first plaintiff and Punniyamoorthy cancelled the partition deed. Once the partition is registered, it is not permissible under law to cancel the document only by few of the parties to the document. Such cancellation will not have any effect on them. However, the fact remains that the defendant himself has pleaded in the written statement to the effect that as the terms of the partition deed is not acted upon by the first plaintiff, he has questioned the same and there arose a dispute between the parties and he has mainly claimed title only on the basis of the settlement deed. The conduct of the defendant claiming right only on the basis of settlement deed indicates that the parties have not acted upon as per partition deed-Ex.A.1. Such being the position, when the deed of partition has not been acted upon, the property continues to remain as joint family property. It is further to be noted that though the cancellation of the partition deed is not legally permissible, the way in which the partition effected is inequitable and only the first plaintiff and the defendant were allotted the properties. Whereas, the father of the plaintiff stated to have been allotted only Rs. It is further to be noted that though the cancellation of the partition deed is not legally permissible, the way in which the partition effected is inequitable and only the first plaintiff and the defendant were allotted the properties. Whereas, the father of the plaintiff stated to have been allotted only Rs. 50,000/- and no provision whatsoever made for the mother of the parties, namely, the third plaintiff, who is admittedly as per the evidence of D.W.1, is not well and is ailing and he is taking care of her and he is meeting out the medical expenses. When the partition deed-Ex.A.1 though registered, when it is inequitable, and when no provision is made for mother and no property is allotted to others, that was the reason, the partition deed in fact has not been acted upon. 14. One other aspect also cannot be ignored in this case. Though the defendant has pleaded that the entire property was bequeathed under a Will by the father, he has waived his right under the Will. This is also indicative of the fact that though the partition is registered, the parties were not intended to act upon the same. Therefore, now, it cannot be contended by the defendant that as per the partition deed, he is entitled to share. As the evidence and the conduct of the parties clearly show that the partition deed has not been acted upon by the parties, the property can be treated only as joint family property. Now, the defendant mainly relied upon the gift settlement deed Ex.B.5. Though there is no serious allegation whatsoever made in the plaint as to the undue influence, fraud, etc., merely because the gift has been executed, the same would not convey any title to the defendant, since the property always continued to be a joint family property. When the original owner himself blended his individual property and treated as joint family property, execution of gift in respect of the specific portion in respect of the property, which was all along treated as joint family property, is not valid in law. 15. Besides, it is the contention of the plaintiffs that the gift has been fraudulently obtained. When the original owner himself blended his individual property and treated as joint family property, execution of gift in respect of the specific portion in respect of the property, which was all along treated as joint family property, is not valid in law. 15. Besides, it is the contention of the plaintiffs that the gift has been fraudulently obtained. Though there is no specific pleading as to the nature of fraud, undue influence, etc., the defendant, who wants to take advantage over the gift deed executed by aged father, has to prove the entire transaction done in good faith and the gift is validly executed. Merely because no allegation as to the fraud or undue influence has been addressed with the pleadings by the plaintiffs, it cannot be construed that the gift has been accepted by the plaintiffs. The burden of proving the execution of the document by the executor, or settlor, is on the defendant. He has not examined any of the attesting witness in this regard. Though Section 68 of the Indian Evidence Act dispense with the examining of attesting witness when the execution of the gift deed is admitted, that does not relieve the defendant from the burden of establishing the transaction done in good faith, whether executant had a mental stability and sound mind and own volition, executed the gift deed. Admission of D.W.1 in the cross-examination itself indicates that he has specifically admitted that the portion shown in the partition deed was specifically obtained in the gift deed by himself. He has also admitted that he himself obtained the gift deed in respect of the above portion. The above admission also clearly indicated that there is no voluntariness on the part of the father rather it shows some interestedness and forcibleness on the part of the defendant. Such being a position, as long as the gift settlement has not been validly proved, the property is always treated as joint family property. Even the gift is validly executed by the father, since the property continues as a joint property, the gift itself is not valid, as far as the joint family property is concerned. Specific portion cannot be gifted by Kartha or the elder man of the family. Such being a position, the finding of the Trial Court that the gift is not valid also cannot be found fault with. Specific portion cannot be gifted by Kartha or the elder man of the family. Such being a position, the finding of the Trial Court that the gift is not valid also cannot be found fault with. Accordingly, the shares arrived by the Trial Court also cannot be faulted. Three sons and father are joint family members and they are entitled to equal share, on the death of the father, notional partition shall be presumed. On the death of father, his share would certainly go to the remaining legal heirs. Accordingly, share arrived by the Trial Court is also according to law. Hence, the preliminary decree passed by the Trial Court does not require any interference. 16. In the result, this appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.