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2021 DIGILAW 2312 (MAD)

Saju Kumar v. Palammal (died)

2021-09-07

G.R.SWAMINATHAN

body2021
JUDGMENT : The fifth plaintiff in O.S.No.141 of 2009 on the file of the Additional District and Sessions Judge/Fast Track Court, Nagercoil, is the appellant in this first appeal. 2. The suit was originally filed by the appellant's mother, namely, Kanakabai @ Kanakam for recovering a sum of Rs.16,00,000/- with interest from the defendants. During the pendency of the suit, the appellant's mother passed away and her sons including the appellant were brought on record. The plaint averments are as under:- The appellant's sister, namely, Angel Leela Selvi got married to one Lucas in the year 1988. Two daughters, namely, Kumari Angela Vinnarasi and Kumari Ezhilarasi were born. Angel Leela Selvi was employed as a teacher. Lucas was also employed in Government service. The couple purchased four parcels of land in Ezhudesam Village and put up a house on one of the plots. They had also purchased a piece of land in Villupuram. The entire family died in a tragic accident on 29.05.2005. Since the family had left behind movable as well as immovable properties, issue arose as to their division. On account of intervention by some elders, a memorandum of agreement was entered into between both the parties on 10.09.2005. It was also reduced into writing. It must be mentioned here that the husband's side was represented by his mother Palammal and his brothers Kanakam Nadar, Packianathan and Pathrose. The wife side was represented by her mother Kanakabai @ Kanakam and her brothers Dennis Jeyaraj, Jones, Rabi and Saju Kumar(appellant herein). The properties located at Ezhudesam Village have been set out in suit ' A ' schedule, while Villupuram property has been set out in suit ' B ' schedule. Though the couple are said to have acquired one other item in Chennai and the same was also described in the suit ' C ' schedule, it could not be identified. There is also no prayer in respect of the suit ' C ' schedule. It is beyond dispute that the memorandum of agreement dated 10.09.2005(Ex.A.10) covers movable as well as immovable properties of the deceased couple. As per the terms thereof, the properties situated in Ezhudesam Village are to be taken by the husband's side, namely, the defendants herein. Ezhudesam properties were to be valued and the wife's side was to be paid ½ share therein. As per the terms thereof, the properties situated in Ezhudesam Village are to be taken by the husband's side, namely, the defendants herein. Ezhudesam properties were to be valued and the wife's side was to be paid ½ share therein. In other words, the husband's side was to take the property, while the wife's side was to take half of the money value. Since both the parties did not evince any interest in retaining Villupuram property, it was to be sold and the sale proceeds was to be divided into equal shares between the two sides. Likewise the fixed deposits and the other insurance amounts were to be divided equally between them. Based on the said memorandum of agreement, Kanakabai @ Kanakam filed S.O.P.No.23 of 2005 before the Sub Court, Kuzhithurai in respect of the bank deposits and the insurance amounts. Likewise, the husband's side filed S.O.P.No.7 of 2006 before the very same Court for the same relief. It is interesting to note that both the parties swore by Ex.A.10 dated 10.09.2005. Purporting to act in terms thereof, both S.O.Ps. were ordered on 28.11.2006. Even though the sisters of Lucas were not made parties to Ex.A.10, division of the insurance amounts and bank deposits appears to have concluded smoothly and I am clearly of the view that they need not be reopened at this point of time. 3. The parties however could not arrive at a consensus as regards Ezhudesam properties and Villupuram property. The wife's side felt that they ought to be paid the monetary value in terms of Ex.A.10 dated 10.09.2005. Kanakabai @ Kanakam issued Ex.A.11 notice dated 27.07.2009. The demand set out in the notice was not complied with by the defendants. She therefore filed O.S.No.141 of 2009. As already mentioned, she passed away shortly thereafter and her sons came on record. The appellant herein examined himself as P.W.1. Shri.Ananthalal at whose instance Ex.A.10 was finalised was examined as P.W.2. One Anantha Pandi was examined as P.W.3. Ex.A.1 to Ex.A.29 were marked. The fourth defendant Pathrose examined himself as D.W.1 and Ex.B.1 to Ex.B.16 were marked. Ex.X.1 to Ex.X.9 were also marked. After a consideration of the evidence on record, the learned trial Judge by judgment and decree dated 07.02.2019 dismissed the suit. Aggrieved by the same, one of the plaintiffs filed this appeal. 4. Ex.A.1 to Ex.A.29 were marked. The fourth defendant Pathrose examined himself as D.W.1 and Ex.B.1 to Ex.B.16 were marked. Ex.X.1 to Ex.X.9 were also marked. After a consideration of the evidence on record, the learned trial Judge by judgment and decree dated 07.02.2019 dismissed the suit. Aggrieved by the same, one of the plaintiffs filed this appeal. 4. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to set aside the impugned judgment and decree passed by the trial Court and decree the suit as prayed for. 5. The learned counsel appearing for Respondents 7 and 9 who are none other than the brothers of the appellant submitted that they are sailing with the appellant. However the whereabouts of the eighth respondent are not known and a memo has been filed to that effect. 6. Per contra the learned counsel appearing for the contesting defendants submitted that the suit has been improperly framed. He submitted that the trial Court had correctly approached the issues and that the impugned judgment and decree do not warrant any interference. He pointed out that the suit has been filed for recovery of money; the suit had suffered a wholesale dismissal. Though the plaintiffs are four in number, only one of them filed the appeal. Therefore, respondents 7 to 9 cannot be granted any relief. He would state that at best, the appellant can maintain the appeal to the extent of 1/4th of the original claim. He also pointed out that the suit appears to be barred by limitation. He emphasized the fact that in as much as the sisters of Lucas were not made parties to Ex.A.10, they cannot be bound by the terms thereof. He added that Ex.A.10 which creates rights ought to have been registered and in as much as it has not been registered, it is inadmissible in evidence. He called upon this Court to confirm the impugned judgment and decree and dismiss this appeal. 7. I carefully considered the rival contentions and went through the evidence on record. 8. The points for consideration are as follows:- a) Whether Ex.A.10 memorandum of understanding dated 10.09.2005 is legally enforceable? b) Whether the plaintiffs are entitled to relief in respect of ' A ' and ' B ' schedule properties? 9. 7. I carefully considered the rival contentions and went through the evidence on record. 8. The points for consideration are as follows:- a) Whether Ex.A.10 memorandum of understanding dated 10.09.2005 is legally enforceable? b) Whether the plaintiffs are entitled to relief in respect of ' A ' and ' B ' schedule properties? 9. It is well settled that the true nature of a document has to be ascertained by taking into account all the attendant circumstances. Even though Ex.A.10 has been styled as an agreement, on a careful perusal of its terms, one can note that it embodies the settlement that was already arrived at between the parties. Ex.A.10 is an evidential document and not an operative document. In other words, it is a record of event that had already taken place. P.W.2 Shri.S.P.Anathalal appears to be a village elder and through his intervention, both the families were brought to the negotiating table and the division of the assets left behind by Lucas and Angel Leela Selvi had been finalised. Since Ex.A.10 records a settlement already arrived at, it does not require registration. It is true that the sisters of the deceased Lucas were not made parties. But the fact remains that till date, they had not chosen to challenge it. In S.O.P.No.23 of 2005 filed by the wife's side as well as in S.O.P.No.7 of 2006 filed by the husband's side, Ex.A.10 was specifically relied upon. Though the S.O.Ps. were not formally adjudicated and were ordered based on the endorsements made by the parties, the fact remains that Ex.A.10 clearly loomed large in the minds of the parties as well as the Court. In the present suit, the plaintiffs have rightly arrayed all the legal heirs of the deceased Lucas that included his mother, brothers and sisters. It is pertinent to point out that the sisters though filed a separate written statement sailed with their brothers. Ex.A.10 was not executed under the coercive circumstances. If really, defendants 1 to 4 had been pressurised to sign Ex.A.10, they would have definitely lodged a complaint immediately after its execution. No such complaint was ever lodged. On the other hand, in S.O.P.No.7 of 2006 filed by defendants 1 to 4, in paragraph No.15 and 16 the following averments were made:- “15. If really, defendants 1 to 4 had been pressurised to sign Ex.A.10, they would have definitely lodged a complaint immediately after its execution. No such complaint was ever lodged. On the other hand, in S.O.P.No.7 of 2006 filed by defendants 1 to 4, in paragraph No.15 and 16 the following averments were made:- “15. So far as the immovable properties of Late Lucas is concerned, there was a compromise among the petitioners and the respondents on the mediation of one Thiru. S.P.Anand Lal, Lal Cottage, Kuzhithurai. An agreement was entered into that effect on 10.09.2005. As per the terms of the agreement, the petitioners have consented to share the immovable properties of Late Lucas on a humanitarian consideration and also for an amicable settlement. In fact and also in law the petitioners are the only heirs to the movable assets as well as to the immovable assets of Late Lucas. However on the mediation of the well wishers the present petitioners have accepted the agreement and all the parties have signed in the agreement. 16. As per the agreement dated 10.09.2005 the petitioners are entitled to get entire building which is situated in R.S.No. 139/18 and 19 of Ezhudesam Village. The respondents are only entitled to ½ of the value of the superstructure as seen by the four persons. Since the property comprised in R.S.No.139/18 and 19 are the family properties of Late Lucas, the entire land is allotted to the petitioners. So far as the property comprised in R.S.No.139/7 measuring 133/4 cents in Ezhudesam Village is concerned, the petitioners are entitled to get entire property and the respondents are entitled to get ½ share of the land value. So far as the property at Villupuram comprised in R.S.No. 167/4D and 167/4E and the building situate therein, the same has to be sold to third parties and the sale proceeds have to be shared both by the petitioners and the respondents. Similarly the property at Veppampatti, Chennai, is also to be sold to third parties and the sale proceeds have to be shared equally by the petitioners and respondents. Besides this, with regard to the benefits of Angela Vinnarasi and Ezhilarasi are concerned, it is agreed that both the petitioners and the respondents have to be shared equally. The respondents have also signed and acted upon the agreement dated 10.09.2005. Besides this, with regard to the benefits of Angela Vinnarasi and Ezhilarasi are concerned, it is agreed that both the petitioners and the respondents have to be shared equally. The respondents have also signed and acted upon the agreement dated 10.09.2005. If the respondents dispute about the compromise and settlement dated 10.09.2005, the petitioners reserve their right to file a comprehensive civil suit in respect of the immovable properties of Late Lucas as provided under law in due course. “ 10. In response to the S.O.P. filed by the wife's side in S.O.P.No.23 of 2005, the voluntary nature of Ex.A.10 was accepted and conceded. It is therefore too late in the day to impeach the genuineness of Ex.A.10. The only ground on which its enforceability as against defendants 5 and 6 can be contested is that they were not parties. 11. Be that as it may, as rightly pointed out by the learned counsel on either side, the wife's side and the husband's side will have to take the estate in equal shares. The parties are Christians. The entire family had perished in the accident at the same time. Therefore, applying the common law presumption, the youngest should be deemed to have died last. Kumari Ezhilarasi was the youngest heir of the parties herein. Section 48 of the Indian Succession Act will come into play. “ 48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.— Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him. ” 12. I therefore hold that even if Ex.A.10 is ignored, still the plaintiffs will be entitled to ½ share in the suit ' A ' schedule as well as the suit ' B ' schedule. The plaintiffs are co-owners in respect of both the properties along with the defendants. Even though they had ill-advisedly laid a money claim, in the interest of the justice, I deem it fit and appropriate to grant a preliminary decree for partition. 13. In this view of the matter, the judgment and decree dated 07.02.2019 passed in O.S.No.141 of 2009 on the file of the Additional District and Sessions Court/Fast Track Court, Nagercoil, is set aside. 13. In this view of the matter, the judgment and decree dated 07.02.2019 passed in O.S.No.141 of 2009 on the file of the Additional District and Sessions Court/Fast Track Court, Nagercoil, is set aside. Preliminary decree is passed granting ½ share for the plaintiffs in the suit ' B ' schedule, while defendants 2 to 7 will be entitled to remaining ½ share in the suit ' B ' schedule. Since Ex.A.10 had been acted upon already and the plaintiffs have conceded that the suit ' A ' schedule properties can be taken by the defendants and they only wanted half of its monetary value thereof, the defendants are directed to pay a sum of Rs.8,00,000/-(Rupees Eight Lakhs only) to the plaintiffs with interest @ 6% p.a. from the date of filing of the suit till the date of payment. If the defendants are either unable to pay the said amount or not willing to pay the said amount, the plaintiffs will then be entitled to claim ½ share in the suit ' A ' schedule also. The defendants are granted six months time to make the aforesaid payment to the plaintiffs. If at the end of the six months period, the defendants are not able to make payment, there will be a preliminary decree in favour of the plaintiffs granting them ½ share in the suit ' A ' schedule also. The parties have to pay Court fee towards their shares. 14. This appeal suit is allowed on these terms. 15. It is made clear that as and when the suit ' C ' schedule property is located, it is open to the parties to seek appropriate relief in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.