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2021 DIGILAW 1240 (MAD)

K. Natarajan v. K. Devaraj

2021-04-01

G.JAYACHANDRAN

body2021
JUDGMENT :- (Prayer: Appeal Suit has been filed under Section 96 r/w Order XLI Rule 1 of C.P.C., against the judgment and decree of the V Additional District and Sessions Judge, Coimbatore dated 13.12.2013 in O.S.No.46 of 2009.) 1. The appeal arising from the suit for partition. Before the trial Court, the appellant herein was the plaintiff. Respondents 1 to 7 were the defendants. The suit for partition was partly allowed. Against the disallowed portion, the appeal suit is filed by the aggrieved plaintiff. Pending appeal, the 3rd respondent died. His legal representatives were impleaded as respondents 8 to 10. Claiming share in the suit property due to change in law pending appeal, the daughters of the appellant impleaded as respondents 11 to 14 vide order dated 07/09/2015. 2. The case of the plaintiff as found in the plaint: Periyamarimuthu Chettiar had three sons by name Kandasamy, Arumugam and Karuppasamy. He established a textile business at Pollachi in the name and style of Thiru N.K.Periyamarimuthu Chettiar and Sons. Periyamarimuthu Chettiar along with his wife Mallammal and three sons carried on the textile business as joint family business. From the profit, properties were purchased in the name of his son Arumugam. In the year 1935, Karuppasamy Chettiar relinquished his right in the joint family business. Later, in the year 1940, partition was effected between the family members namely Periyamarimuthu Chettiar, his wife Mallammal, his sons Kandasamy, Arumugam and Karuppasamy vide registered partition deed dated 19/11/1940. Under the said partition deed, Item 1 of the present suit property was allotted to Kandasamy listed under 'A' schedule and the item 2 of the present suit property was allotted to Mallammal listed under 'D' schedule. After the demise of Mallammal, the property under 'D' schedule was divided among her legal heirs vide, partition deed dated 06/03/1967. The item 2 of the present suit was allotted to Kandasamy in the said partition. On 01/05/1990 Kandasamy died intestate. In respect of other immovable properties of Mallammal, the plaintiff and defendants 1 to 6 had executed a partition deed dated 15/11/1999 duly registered on 08/02/2000. Under this partition deed, the family business was transferred to the 5th defendant. 3. The plaintiff and defendants 1 to 6 as children of Kandasamy entitle for equal share in the suit property. While so, the fifth defendant is trying to alienate the suit properties to the third parties. Under this partition deed, the family business was transferred to the 5th defendant. 3. The plaintiff and defendants 1 to 6 as children of Kandasamy entitle for equal share in the suit property. While so, the fifth defendant is trying to alienate the suit properties to the third parties. Hence, suit for partition filed seeking 1/7th share in the suit property. 4. Pending suit, on 03/11/2008, the 5th defendant had sold 1.61 acres of land comprising in S.No.125/1,124/2,124/5,125/6 with 1/4th right in the pathway and 1/4th right to draw water in the well situated in S.F.No.125/3 to the 7th defendant. The said sale is sham and nominal by obtaining patta on producing false and fabricated document. The patta was cancelled by RDO on the complaint given by the plaintiff. The appeal against the order of the RDO preferred by the 5th defendant is pending before the DRO/Additional Collector. The 5th defendant obtained patta by producing forged Will purported to have been executed by N.K.P.M.Kandsamy Chettiar. Therefore, by way of amendment, additional relief sought to declare the sale deed dated 03/11/2008 in favour of 7th defendant is void ab inito and does not bind the plaintiff. 5. Case of the first defendant as found in his written statement: The averment in the plaint that the properties were purchased from the income of joint family business established by Periyamarimuthu Chettiar denied. The averment that the suit properties were enjoyed in common denied. The description of suit properties mentioned as item 1 is vague and unidentifiable. The suit with the property description without boundaries and vague description liable to be dismissed. 6. The 4.40 acres of land and the house therein shown as item 2 property in the suit originally owned by the three sons of Periyamarimuthu Chettiar. The house was old and dilapidated. The land was unfit for cultivation. Therefore, the three brothers shifted their residence to Pollachi and at Pollachi they acquired a house site and put up a tiled house. They started textile business and earned good income. They extended the business at Coimbatore. One of their brother Karuppasamy relinquished his right in the family business in favour of his other two brothers Arumugam and Kandasamy vide, relinquish deed dated 25/03/1935. The family business was continued by Arumugam and Kandasamy. They started textile business and earned good income. They extended the business at Coimbatore. One of their brother Karuppasamy relinquished his right in the family business in favour of his other two brothers Arumugam and Kandasamy vide, relinquish deed dated 25/03/1935. The family business was continued by Arumugam and Kandasamy. From the family business income, they acquired 0.60 acre land in S.F.No.122; 0.50 acre in S.F.No. 123; 0.20 acre in S.F.No. 124, 0.32 1/3 acre in S.F.No.125; 1.29 acres in S.F.Nos.126, 127 and 129; 0.62 2/3 acre in S.F.No137 A/1b, 0.75 acre in S.F.No.99, totally 4 acres 30 cents in Santhaegoundanpalayam Village under two sale deeds dated 02/05/1935 and 01/04/1936. After the above acquisition, the said 4.30 acres of land was allotted to Kandasamy Chettiar under the partition deed dated 19/11/1940. In the said partition, certain properties were left for the life time enjoymentof their mother Mallammal and kept in common without division. Since the other bother Karuppasamy already relinquished his right, no share was allotted to him. In the year 1967, after the death of Arumugam and Mallammal, partition was effected in respect of the property left for Mallammal for life enjoyment. The house at Pollachi shared between the Kandasamy Chettiar, Karuppasamy Chettiar and the legal heirs of the Arumugam Chettiar. To equalise the allotments made under this partition, Kandasamy Chettiar paid cash to Karuppasamy Chettiar and legal heirs of Arumugam Chettiar. Though the house property in item 2 was allotted to the shares of Kandasamy, as it was in poromboke land not worth mentioning, it was not considered as a property worth mentioning. Kandasamy obtained patta for the promboke land from the Government and become the absolute owner of it. 7. The first defendant was employed in Government of India and residing at Coimbatore. The plaintiff, defendant 2 , 3 and 6 got married during the life time of their mother Subbammal. The 4th and 5th defendants got married after the death of Subbammal. Except the fifth defendant, others are living separately away from the suit property. The 5th defendant alone was living with their father Kandasamy and looking after the business. While so, Kandasamy bequeathed the 4.30 acres of land allotted to him under the partition deed dated 22/09/1940 and the house property mentioned in item 2 of the plaint schedule along with the textile business to the 5th defendant through a Will dated 26/03/1979. The 5th defendant alone was living with their father Kandasamy and looking after the business. While so, Kandasamy bequeathed the 4.30 acres of land allotted to him under the partition deed dated 22/09/1940 and the house property mentioned in item 2 of the plaint schedule along with the textile business to the 5th defendant through a Will dated 26/03/1979. Later Kandasamy died on 01/05/1990. On the death of Kandasamy, the 5th defendant pursuant to the Will became the absolute owner of the first and second items of the suit property. Even during the life time of Kandasamy, a portion of the 4.40 acres of land was under encroachment by the third parties and only the unencroached portion was in possession of Kandasamy. 8. Subbammal, W/o Kandasamy and the mother of the plaintiff and the defendants 1 to 6 died on 07/09/1977. The immovable properties left by her was divided among her legal heirs by a partition deed dated 15/11/1999. The share of Kandasamy in the Pollachi house was allotted to 4th defendant and he sold it to third parties. Portion of the land in total 4.40 acres at Okkilipalayam Village under acquisition by the Government and the compensation amount is deposited in the Court. This defendant does not deny the right of the plaintiff in this land and always ready and willing to share the remaining land with the plaintiff. Whereas the plaintiff have no right or share in the 4.30 acres land and house property bequeathed to the 5th defendant by Kandasamy under his will. 9. Case of the defendants 2 to 5 as per their written statement: The averments made in the plaint are bald and vague. The claim of the plaintiff that the suit properties are being enjoyed as common joint family properties is false and incorrect. The suit has no cause of action and suit requires dismissal. So far the item 1 of the schedule mentioned property, Kandasamy got it as his share under the partition dated 19/11/1940. During his life time, he executed a Will dated 26/03/1979 in favour of 5th defendant. After the death of Kandasamy on 01/05/1990, 5th defendant became the absolute owner of the suit property item 1. He is in possession and enjoyment of the same by effecting necessary mutation of records with the knowledge of the plaintiff. During his life time, he executed a Will dated 26/03/1979 in favour of 5th defendant. After the death of Kandasamy on 01/05/1990, 5th defendant became the absolute owner of the suit property item 1. He is in possession and enjoyment of the same by effecting necessary mutation of records with the knowledge of the plaintiff. The land and house referred as item 2 in the suit schedule is the property in Pollachi Town. As admitted by the plaintiff, there was partition among the sharers on 15/11/1999. The house was allotted to 4th defendant K.Rajagopal. So far the land measuring 4.40 acres mentioned in item 2, the Government had acquired 2.40 acres of land for Harijan Welfare. The balance 2 acres was agreed to be shared between the plaintiff, defendants 1, 3 and 4. Based on this understanding in the presence of Radha Gounder and Doraisamy, the partition deed dated 15/11/1999 was effected. Suppressing these facts, the suit filed belatedly with falsehood. 10. The sixth defendant in her written statement supporting the plaintiff, sought for a preliminary decree to divide suit properties into seven equal shares and allot one share to her. 11. The case of the seventh defendant as found in his written statement: The suit as framed is abuse of law and baseless. The suit is liable to be dismissed as belated and motivated. The suit filed after the sale in favour of this defendant by the 5th defendant. He purchased the property on 08/11/2008. Whereas the suit was filed on 05/01/2009. The relief to declare the sale as null and void ab initio was sought by way of amendment through I.A.No. 285/2011. The suit is speculative and devoid of merits. 12. In addition to the written statements already filed, the defendants 2 to 5 filed additional written statement pointing the omission of the item 1 of the suit property in the partition deed dated 15/11/1999 emphasised that if really, the plaintiff and the defendants 1 to 4 and 6 had any right in item 1 property, there would have been a reference and specific recital about it in the partition deed. This would show that the item 1 property is absolute property of the 5th defendant. The parties have waived their right if any in favour of the 5th defendant and the plaintiff is stopped from seeking share in item 1 property. This would show that the item 1 property is absolute property of the 5th defendant. The parties have waived their right if any in favour of the 5th defendant and the plaintiff is stopped from seeking share in item 1 property. With the knowledge of the plaintiff and defendants 1 to 4 and 6, the 5th defendant is in exclusive possession and enjoyment of item 1 property. He had developed the land by raising coconut trees. He had dug two bore wells in the property and had the electricity service transferred to his name. He is in continuous enjoyment for more than the statutory period without interruption. The 5th defendant had perfected his title by adverse possession. 13. The description of suit property vague. The extent of property mentioned in the plaint is different from the extent mentioned in the document. The value of the property not properly calculated. The possession of the property is not with the plaintiff. The Court fees ought to have paid under Section 37(1) of the Court Fees and Suit Valuation Act. Therefore, for these reasons the suit has to be dismissed. 14. The trial Court based on the above pleadings framed the following issues and additional issues: 1. Whether the plaintiff is entitled to 1/7th share in the suit property? 2. To what relief? Additional issues: (1)Whether the plaintiff is in joint possession? (2)Whether the suit is valued properly and proper Court fee has been paid? (3)Whether the 5th defendant prescribed title by ouster? (4)Whether the sale deed in faovur of the 7th defendant is valid and winding upon the plaintiff? (5)Whether the 7th defendant is a bona fide purchaser for value? (6)Whether the plaintiff entitle to the relief of declaration? 15. On behalf of the plaintiff, 15 exhibits were marked and on behalf of the defendants, 34 exhibits were marked. The plaintiff as PW-1, the first defendant as DW-1, the fifth defendant as DW-2, Thiru.Venkitusamy, the attestor to the Will of Kandasamy as DW-3 and the 7th defendant as DW-4 were examined. 16. The trial Court, after examining the title documents and partition deeds held that the first item of the suit property is the self acquired property of Kandasamy hettiar. The second item of the suit property, which is the agricultural property is the ancestral property. 16. The trial Court, after examining the title documents and partition deeds held that the first item of the suit property is the self acquired property of Kandasamy hettiar. The second item of the suit property, which is the agricultural property is the ancestral property. As far as house in the second item property accepting the plea of the first defendant that Kandasamy Chettiar occupied promboke land and put up the house shown in the second item of the suit schedule, held the house mentioned in the second item property is self acquired property of Kandasamy. 17. The trial Court rejected the plea of the plaintiff that the textile business was joint family business and the properties were purchased from the income of the joint family business. Referring the recitals in the Partnership Deed Ex.A-4 and reconstitution of the partners under Ex.B-17 held that the business was partnership business and not family business. Any property acquired from the income of this business should be treated only as self acquired property of its partners. 18. The original Will was not produced and pleaded that it was lost and complaint to the police was given reporting the loss of the original Will. The certified copy of the registered Will marked as Ex.B-3. One of the attestors to the Will examined as DW-3 and he had deposed about the due execution of the Will, besides the plaintiff himself had admitted that the signature found in the Will is that of his father Kandasamy. Therefore, the trial Court held the Will of Kandasamy dated 26/03/1979 proved. 19. The trial Court also referring the recital found in the partition deed Ex.B-2, in which the suit properties were not included and specific recital that no other properties left to be partitioned, held that this proves that the parties are aware of the fact that the first item and house in second item were already bequeathed to the 5th defendant under the Will [Ex.B-3]. The trial Court has also taken note of the fact that the suit for partition is filed 19 years after the execution of Will by Kandasamy. The plaintiff never sought for partition all these years and allowed the 5th defendant to enjoy the property absolutely and get the revenue records transferred in his name. The trial Court has also taken note of the fact that the suit for partition is filed 19 years after the execution of Will by Kandasamy. The plaintiff never sought for partition all these years and allowed the 5th defendant to enjoy the property absolutely and get the revenue records transferred in his name. Except the plaintiff and the 6th defendant, none other in the family claims right over the suit properties, Therefore, barring the land mentioned in item No.2 (ie the remaining land out of 4.40 acres after acquisition) where the plea of ouster against the co-owner is not available, for the rest of the suit properties, the trial Court held that the plaintiff has no right to claim share. Having held so, the plea to declare the sale in favour of the 7th defendant dismissed. 20. The said judgment is assailed in this appeal on the ground that, the trial Court erred in upholding the validity of the Will without proper appreciation of the testimony of the attesting witness. The Will has not been proved as per the procedure laid under law. The 5th defendant, who claims to be the beneficiary under the Will had played a predominant part in the execution of the Will. The suspicious circumstance which surrounding the due execution of the Will was not taken note by the trial Court. Kandasamy died 11 years after the alleged Will. There is no evidence to show that Ex.B- 3 was the last Will of Kandasamy. The admission of DW-3 in the cross examination that he did not know about the document, he signed as attestor ought to have taken note by the trial Court to disbelieve the due execution of the Will. The trial Court has overlooked the lacuna in the testimony of DW-3 and erred in upholding the Will as valid. 21. The trial Court having held that principle of ouster will not apply to the agricultural land mentioned in the second item, ought to have applied the same reasoning for the first item property also. The trial Court failed to see that the moment the plaintiff asserts jointness of old properties belong to family, the initial burden of prove on the plaintiff gets discharged and the burden to prove the property is exclusive property, lies on the defendants. The trial Court failed to see that the moment the plaintiff asserts jointness of old properties belong to family, the initial burden of prove on the plaintiff gets discharged and the burden to prove the property is exclusive property, lies on the defendants. The trial Court erred in holding that Kandasamy Chettiar had absolute right to bequeath the first item property, when admittedly he got the property under the partition deed of the year 1940 effected between the family members, their joint family property. The trial Court erred in treating it as self acquired property of Kandasamy. 22. Mr.V.Anand, the learned counsel for the appellant submitted that the trial Court erred in not appreciating the recitals found in the partition deed Ex.A-3 dated 19/11/1940. The first item property allotted to Kandasamy Chettiar is the property acquired from out of the family business and it cannot be treated as self acquired property. The trial Court erred in holding the business as partnership business instead of family business. The said finding is contrary to the content of the partition deeds Ex.A-3 and Ex.B-2. The trial Court overlooked the fact that the Will Ex.B-3 not proved as laid under Section 68 of the Indian Evidence Act,1872 and Section 63 of the Indian Succession Act. The plaintiff had elicited through cross examination of DW-3, the attesting witness that there was every probability of being influenced by the beneficiary, who actively participated in drafting of Will and its execution. The testator died 11 years after the execution of the alleged Will and no positive assertion that there was no change of mind. The trial Court overlooked the plea of the plaintiff that the second item property at Pollachi was purchased from out of the income derived from the family business and erred in holding that the parties have not proved, how the second item property came to the family. Therefore, the learned counsel contended that the disallowed part of the relief should be reversed and the suit to be allowed in total. 23. Per contra Mr.N.Manoharan, the learned counsel for the contesting respondents 1,2,4,5,7,8,9 & 10 submitted that the suit as framed and relief sought not maintainable. The trial Court, after considering the material evidence, had rightly dismissed the relief of declaration in respect of the first item properties and the sale effected in favour of the 7th defendant. 23. Per contra Mr.N.Manoharan, the learned counsel for the contesting respondents 1,2,4,5,7,8,9 & 10 submitted that the suit as framed and relief sought not maintainable. The trial Court, after considering the material evidence, had rightly dismissed the relief of declaration in respect of the first item properties and the sale effected in favour of the 7th defendant. The plea of the appellant that the properties acquired from the income derived from the joint family business rightly held to be not proved. The textile business in the name and style of N.K.Periyamarimuthu Chettiar and Sons was run by the three sons of Periyamarimuthu Chettiar. One of them Mr.Karuppasamy Chettiar got relieved from the partnership and executed the release deed dated 25/03/1935. Since then the business was run by Kandasamy Chettiar and Arumugam Chettiar. The properties were purchased in the name of Arumugam and under two different sale deed during the year 1935 and 1936, the said properties were divided among the family members on 19/11/1940 under partition deed Ex.A-3. In this partition deed, it has been specifically mentioned that Karuppasamy Chettiar is mentally ill and on his behalf, the mother Mallammal shall act as his natural guardian. It is also specifically mentioned that the properties were purchased in the name of Arumugam under the two sale deeds dated 2/5/1935 and 1/4/1936 from the income derived through the textile business in the name and style of N.K.Periyamarimuthu Chettiar and Sons at Pollachi and in the name of style of N.K.P.M.Arumuga Chettiar at Coimbatore. There is a clear evidence to show that the properties are self acquired properties of these two brothers and after partition in the year 1940, the first item property has become the self acquired property of Kandasamy. It being its absolute property, he had bequeathed it to 5th defendant through a registered Will. The same has been proved as per the requirement under Section 68 of the Indian Evidence Act, 1872. 24. It being its absolute property, he had bequeathed it to 5th defendant through a registered Will. The same has been proved as per the requirement under Section 68 of the Indian Evidence Act, 1872. 24. The learned counsel in support of his submission rely upon the following judgments: (1)Mallesappa bandeppa Desai and Another v. Desai Mallappa @ Mallesappa and another reported in [ AIR 1961 SC 1268 ]; (2)Arshnoor Singh v. Harpal kaur and others reported in [2019 19/27 https://www.mhc.tn.gov.in/judis/ A.S.No.291 of 2014 (5) CTC 110]; (3)S.Ramasamy v. S.Subramanian reported in [ 2013 (4) CTC 710 ]; (4)K.M.Thangavel and others v. K.T.Udhayakumar and another reported in [2014(2)CTC 113]; (5)Pentakota Satyanarayana and others v. Pentakota Seetharathnam and others reported in [2005 (8) SCC 67]; (6)Sridevi and others v. Jayaraja Shetty and others reported in [ 2005 (1) CTC 443 ]; (7)Janaki Devi v. R.Vasanthi and others reported in [ 2005 (1) CTC 11 ]; (8)Corra Vedachalam Chetty and another v. G.Janakiraman reported [2001(3) CTC 283]; (9)J.D.Shanthi (deceased) and others v. M.L.Perumal and others reported in [2017 (10 LW 335]; (10)Muniyammal v. Annadurai (deceased) and others reported in [ 2008 (4) CTC 589 ]; and (11)R.V.E.Venkatachala Gounder v. Arulmigu Visweswaraswami and V.P.Temple and another reported in [ 2003 (8) SCC 752 ]. 25.The point for determination is this appeal is: 1. whether there is any legal error in holding the item 1 of the suit schedule property is self acquired property of Kandasamy and he is entitled to bequeath the property through Will Ex B-3 = Ex B-2. 2. Whether the trial Court correct in holding the said Will is a valid document in the absence of original Will? 26. The nature of the item 1 of the suit property is held as selfacquired property of Kandasamy by the trial Court, Hence, dismissed the suit for partition in respect of this property and the consequential relief to declare the sale in favour of 7th defendant, wherein certain properties mentioned in item 1 sold by the 5th defendant. The properties mentioned under item 1 of the suit schedule were purchased in the name of Arumuga Chettiar under Ex.A-1 on 02.11.1935 and Ex.B-1 on 01.04.1936. The properties mentioned under item 1 of the suit schedule were purchased in the name of Arumuga Chettiar under Ex.A-1 on 02.11.1935 and Ex.B-1 on 01.04.1936. Though these properties were purchased in the name of Arumugam Chettiar, later when Arumugam Chettiar and Kandasamy chettiar entered into a partition on 19/11/1940 under Ex.A-3, they have described these properties as properties purchased from the income of the business. The properties covered under item 1 of the suit schedule had been allotted to Kandasamy. Since then Kandasamy had been in possession and enjoyment of it as his absolute property. It is to be noted that when land at Pollachi was under acquisition proceeding by the Harijan Welfare Department, Kandasamy had given Ex.A-14 objection on 15/12/1976, wherein he has stated that 4.40 acres of land at Okkilipalayam is his ancestral property and 5 acres of land in Santhegoundanpalayam is his self acquired property. Item 1 property is the property at Santhegoundampalayam. Also, it is pertinent to note that in the year 1979, Kandasamy had executed a registered Will in favour of the 5th defendant, wherein he has again referred the property as his self acquired property. The recitals found in this Will make clear that Kandasamy wish to give this property to his son Venugopal(5th defendant), who was taking care of him and assisting him in his business. He has also bequeathed his business to him. In this Will, he has also mentioned that the ancestral properties not mentioned under the Will shall be shared by his 5 male children equally. 27. The certified copy of the registered Will was produced before the Court and the defendants had explained the loss of the original Will. He had given a police complaint – Ex.B-14 and paper publication Ex.B-15 regarding the loss of the original Will. One of the attesting witnesses to the Will had been examined as DW-3 and he has identified the signature of the testator and deposed, he saw the testator signing the document. One cannot loss sight of the fact that the witness was examined nearly 30 years after its execution. Minor discrepancies in his deposition cannot be a ground to discredit his evidence, moreso, when the Will is a duly registered Will. 28. One cannot loss sight of the fact that the witness was examined nearly 30 years after its execution. Minor discrepancies in his deposition cannot be a ground to discredit his evidence, moreso, when the Will is a duly registered Will. 28. It is also essential to note that, after the demise of Kandasamy, the legal heirs of Kandasamy including the plaintiff and the 6th defendant, who sail with him had entered into a partition deed on 15/11/1999 in respect of the left over properties by their parents. In this partition deeds, the parties have categorically stated that there is no other properties left for division, except those mentioned in that deed. Therefore, after 4 years of this partition with open declaration that no property left for division, the suit is filed with a false claim that the item 1 of the suit property is ancestral property and left undivided. It is appropriate to extract the portion of the Will executed by Kandasamy dated 26/03/1979 and portion of the partition deed entered between the plaintiff and defendants 1 to 6, which will give quietus to the point under consideration; 29. The relevant portion of the Will Ex.B-3=Ex.B21is extracted as below: “TAMIL” (emphasis added) 30. The relevant portion of the Partition deed Ex B-2 is extracted as below: “TAMIL” (emphasis added) 31. Therefore, for the reasons stated about, this Court holds that the trial Court had rightly appreciated the facts and law. The said judgment and decree need no interference. 32. In the result, the Appeal Suit is dismissed with costs. The judgment and decree of the V Additional District and Sessions Judge, Coimbatore dated 13.12.2013 in O.S.No.46 of 2009 is confirmed.