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2021 DIGILAW 3039 (MAD)

Kanagaraj v. Sadasivam

2021-11-09

R.HEMALATHA

body2021
JUDGMENT : (Common Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 20.02.1998 passed in A.S. Nos 259 and 201 of 1997 respectively, on the file of the II Additional District Court, Erode, reversing the decree and judgment dated 24.02.1997 in O.S. No.569 of 1990 on the file of the Principal Sub Court, Erode.) 1. The appellants in both the appeals are the plaintiffs in O.S.No.569 of 1990 on the file of the Principal Subordinate Judge, Erode. They filed the suit for partition of the suit properties into 32 equal shares and to allot 11 such shares to them. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their ranking in the present appeal would also be indicated. 3. Brief facts of the case of the plaintiffs:- The plaintiffs are the legal heirs of late Thirumalaisamy. The first defendant and Thirumalaisamy are brothers born to one Athiappa Gounder. Athiappa Gounder had ancestral properties and purchased several properties including suit items 4, 4A and 5 through the income generated from the common nucleus. Late Thirumalaisamy, during his lifetime, was not in sound state of mind and he deserted his first wife and therefore, the plaintiffs filed a suit for maintenance against him and it was also decreed. Since the properties are not partitioned among the two brothers, the first plaintiff demanded for a partition of the suit properties after the death of Thirumalaisamy which was not acceded to by the defendants. The first plaintiff, though on an earlier occasion filed a suit for partition, did not press the said suit and therefore, it was dismissed and in the meanwhile, Athiappa Gounder executed a settlement deed in favour of the first defendant and the settlement deed is also not valid since the properties settled are ancestral in nature. 4. The suit was resisted by the defendants 1 to 4 on the following grounds: 1) The suit items 1 to 3 and 6 to 8 are the self acquired properties of late Athiappa Gounder. 2) The first defendant and Thirumalaisamy purchased Items 4 and 4A and divided the same among themselves. 3) Item No.5 was purchased by the first defendant from out of his own income. 2) The first defendant and Thirumalaisamy purchased Items 4 and 4A and divided the same among themselves. 3) Item No.5 was purchased by the first defendant from out of his own income. 4) The plaintiffs filed two suits one for partition and another for claiming maintenance from late Thirumalaisamy. 5) The suit for maintenance was decreed and during the pendency of the execution proceedings in the said suit, a compromise was entered into between the plaintiffs and late Thirumalaisamy in which a sum of Rs.20,000/- was paid to the plaintiffs by late Thirumalaisamy apart from executing a settlement deed (Ex.B25) dated 07.10.1989 in favour of the first plaintiff. Thereafter, the suit for partition was dismissed based on the said compromise. 6) Since the plaintiffs relinquished their rights through a registered Release Deed (Ex.B1) dated 02.10.1989, they cannot claim any share in respect of the other items of the suit properties. 5. The fifth defendant, one of the daughters of the third plaintiff filed a separate written statement praying for partition of suit properties into 32 equal shares and to allot five such shares to her. The plaintiffs had shown her as defendant in the suit since according to her, she married a person not belonging to her community. 6. The trial Court decreed the suit partly in respect of all the suit properties except item No.4A and passed a preliminary decree for partition and separate possession of 11/32 shares to the plaintiffs vide its decree and judgment dated 24.02.1997. Aggrieved over the same, the first defendant filed an appeal in A.S.No.259 of 1997 while the defendants 2 to 4 filed A.S.No.201 of 1997 before the II Additional District Judge, Erode. The II Additional District Judge, after analysing the entire evidence on record, allowed the appeals and dismissed the suit filed by the plaintiffs in toto vide his decree and judgment dated 20.02.1998. 7. Now the present second appeals are filed by the plaintiffs against the decree and judgment of the first appellate court. 8. The substantial question of law framed by this Court on 06.10.1998 is extracted hereunder: “Whether the lower court is correct in rejecting the case of the plaintiff in spite of the admission made by D.W.1 and recitals in Ex.A4?” 9. The genealogy is shown as under: “TAMIL” The above genealogy is admitted by both the parties. 8. The substantial question of law framed by this Court on 06.10.1998 is extracted hereunder: “Whether the lower court is correct in rejecting the case of the plaintiff in spite of the admission made by D.W.1 and recitals in Ex.A4?” 9. The genealogy is shown as under: “TAMIL” The above genealogy is admitted by both the parties. However, the plaintiffs did not admit that the second defendant is the second wife of late Thirumalaisamy. It is seen from the documentary evidence adduced on the side of the defendants that items 1 to 3 and 6 to 8 of the suit properties stand in the name of late Athiappa Gounder, while items 4 and 4A stand in the name of the first defendant and late Thirumalaisamy. Item No.5 of the suit property exclusively stands in the name of the first defendant. However, the contention of the appellants/plaintiffs is that items 4, 4A and 5 were purchased by the first defendant and late Thirumalaisamy from out of the income derived from the ancestral properties. It is settled law that proof of existence of a Hindu Joint Family does not lead to a presumption that the property held by any member of the family is joint and the burden rests upon the person who asserts the same. But where it is established that the family possessed some ancestral properties which from very nature and relative value may have found the nucleus to acquire other properties, the burden shifts to the party alleging self acquisition to establish that the property was acquired without the aid of joint family properties/ancestral properties. In the instant case, the plaintiffs did not adduce any acceptable evidence to show that the family possessed ancestral properties and that the income derived from the said properties was surplus to acquire aforesaid items of the suit properties. 10. The trial Court had concluded that items 4 and 4A are ancestral in nature based on the evidence of D.W.1 (the first defendant), that a sum of Rs.6,000/- was given to him by his father late Athiappa Gounder for purchase of items 4 and 4A. As rightly observed by the first appellate court this evidence alone is not sufficient to hold that items 4 and 4A are ancestral in nature. As rightly observed by the first appellate court this evidence alone is not sufficient to hold that items 4 and 4A are ancestral in nature. In fact it is in evidence that items 4 and 4A were already divided between the two brothers, namely, late Thirumalaisamy and the first defendant, and item 4A was alloted to the share of late Thirumalaisamy. It also emanates from the evidence on record that since late Thirumalaisamy deserted his first wife, the plaintiffs filed a suit for maintenance and it was also decreed in their favour. The D.W.1 admitted during the course of cross examination that a panchayat was convened during the pendency of earlier Partition Suit as well as the Execution Proceedings in the Maintenance Suit, in which late Thirumalaisamy executed a settlement deed (Ex.B25) dated 07.10.1989 in respect of item No.4A. There is a specific mention about the purchase of items 4 and 4A by the first defendant and his brother late Thirumalaisamy in Ex.B25. 11. The plaintiffs also relied on the recitals of Ex.A4 sale deed executed by late Athiappa Gounder to show that Athiyappa Gounder had ancestral properties. As already observed, merely because the family possessed ancestral properties, it cannot be held that late Athiappa Gounder purchased suit properties from out of the income derived from the ancestral properties in the absence of evidence to the effect that the income generated from the ancestral properties was surplus to acquire various other properties. All these aspects have been dealt in extenso by the first appellate court. Suffice to say that all the observations of first appellate court are based on sound principles of law. 12. The plaintiffs have not also established that late Thirumalaisamy, during his lifetime, was mentally unsound. It is also seen from the evidence adduced on the side of the defendants that late Thirumalaisamy and the second defendant were living as husband and wife and late Athiyappa Gounder during his life time executed various settlement deed in favour of the defendants 1 to 4 in respect of the items 1, 2, 3, 6, 7 & 8. Suit item No.4A is already settled in favour of the plaintiffs and items 4 and 5 are the exclusive properties of the first defendant. In such circumstances, there is no property left out for partition and the first appellate court rightly dismissed the suit filed by the plaintiffs. Suit item No.4A is already settled in favour of the plaintiffs and items 4 and 5 are the exclusive properties of the first defendant. In such circumstances, there is no property left out for partition and the first appellate court rightly dismissed the suit filed by the plaintiffs. The first appellate court had analysed the evidence on record in the right perspective and had given cogent reasons for dismissing the suit filed by the plaintiffs. I therefore do not see any reason to interfere with the findings recorded by the first appellate court. 13. In the result, i. the second appeals are dismissed. There shall be no order as to costs. ii. the decree and judgment dated 20.02.1998 passed in A.S. Nos. 259 and 201 of 1997, on the file of the II Additional District Court, Erode, is upheld. iii. the decree and judgment dated 24.02.1997 in O.S. No.569 of 1990 on the file of the Principal Sub Court, Erode, is set aside.