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2022 DIGILAW 1739 (MAD)

Lakshmanan (Died) v. B. Bhaskaran

2022-06-27

P.VELMURUGAN

body2022
JUDGMENT (Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree passed in O.S.No.111 of 1989 dated 09.03.1994 on the file of the learned Subordinate Judge, Kumbakonam.) 1. The deceased sole appellant as a plaintiff filed a suit in O.S.No.111 of 1989 on the file of the learned Subordinate Judge, Kumbakonam, against the respondents/defendants for a preliminary decree for partition. After trial, the said suit was dismissed. Now, challenging the said judgment and decree passed by the trial Court, the plaintiff in the suit filed this appeal. Pending appeal, the sole appellant/plaintiff died and his legal representatives were brought on record as appellants 2 to 7. 2. Brief facts stated in the plaint are as follows:- The suit properties are ancestral properties of the father of the plaintiff namely, Arunajadesam Pillai, who got those properties vide a registered partition deed dated 31.03.1932. He died in 1970 intestate leaving behind his son/plaintiff, daughter/Pattammal and another son/Ramanathan. The plaintiff's sister Pattammal died in 1982 leaving behind her daughter-in-law Padmavathi Ammal/2nd defendant, widow of her per-deceased son Rathinasabapathi who had one son Viruthachalam/3rd defendant and two daughters/defendants 4 and 5. The plaintiff and his brother Ramanthan are each entitled to 4/9 shares and his sister Pattammal entitled to 1/9 share. Elder brother Ramanathan died in 1988 as a bachelor and therefore, his share shall be equally devolved upon other heirs. The 1st defendant who is the grandson of the plaintiff's father's brother namely, Swaminathan Pillai, was allowed to occupy a portion of the house property situate at Thirupanandal by the plaintiff's father. But, lateron, he claimed as if he is entitled to all the properties of the plaintiff's father. Hence, the plaintiff issued a registered notice on 28.03.1989 to the 1st defendant and also the defendants 2 and 3 claiming separate possession and partition of the suit properties. The 1st defendant issued a reply notice dated 05.04.1989 claiming that as per the will dated 18.06.1986 executed by Ramanathan, he alone is entitled to the suit properties and Ramanathan alone had redeemed certain mortgage debts over the suit properties as such, he got the properties absolutely for himself. The 1st defendant issued a reply notice dated 05.04.1989 claiming that as per the will dated 18.06.1986 executed by Ramanathan, he alone is entitled to the suit properties and Ramanathan alone had redeemed certain mortgage debts over the suit properties as such, he got the properties absolutely for himself. According to the plaintiff, mortgages were redeemed from and out of the joint family earning and as a Manager Ramanthan was only looking after the affairs of the joint family properties, as such he has no absolute right over the suit properties. The alleged will by Ramanathan was not executed in a sound and disposing state of mind. The plaintiff is in joint possession of the suit properties. The possession of the 1st defendant was only in the capacity as a cosharer representing the interest of Ramanathan. The deceased Rathinasabapathi had another wife namely, Subbalakshmi and children born through her who are defendants 6 to 15. According to the plaintiff, the 6th defendant is not the legally wedded wife of Rathinasabapathi. Defendants 12 to 15 are lessess in some of the suit properties. Hence, the plaintiff filed suit claiming 4/9 share in the suit properties. 3. Brief facts in the written statement filed by the 1st defendant are as follows:- The suit properties are not ancestral properties. The plaintiff never claimed any right in any of the suit properties during the life time of A.Ramanathan. Under the partition deed dated 31.01.1932 between Arunajadesam Pillai and his brothers, Arunajagesdam Pillai got the first schedule property along with the debts provided under the said partition deed. The plaintiff never took steps to discharge the debts and only Ramanathan discharged the same and got exclusive possession of the suit properties for more than 12 years. Thus, the plaintiff lost his right by virtue of continuous and adverse possession of Ramanathan to the knowledge of the plaintiff and his sister Pattammal who have no right over the suit properties. The plaintiff and Ramanathan was on enimical terms. The defendants 6 to 15 are not necessary parties to the suit. Ramanathan executed a will dated 25.10.1980 in favour of the 1st defendant's father Baratha Pillai and after the death of Baratha Pillai, Ramanathan executed a will dated 18.06.1986 in favour of the 1st defendant. The plaintiff and Ramanathan was on enimical terms. The defendants 6 to 15 are not necessary parties to the suit. Ramanathan executed a will dated 25.10.1980 in favour of the 1st defendant's father Baratha Pillai and after the death of Baratha Pillai, Ramanathan executed a will dated 18.06.1986 in favour of the 1st defendant. As per the said will, the 1st defendant is in exclusive possession of the suit properties and he never put in possession by the plaintiff's father and at the instigation of the defendants 2 to 5, the plaintiff filed the suit. Hence, the suit is liable to be dismissed. The 12th defendant also filed written statement stating that her husband's brother Natesan was the cultivating tenant in the suit properties and Ramanathan initiated eviction proceedings against him, and hence, Natesan should be impleaded as defendant. The 15th defendant also filed written statement stating that he is the son of one Palanikumara Pillai who is the brother of Saminatha Pillai and the Arunajadesam Pillai and this defendant was neither in possession of the suit properties nor a tenant of the same, as such, he is not a necessary party. 4. Based on the pleadings, the trial Court framed the following issues:- i) Whether the plaintiff is entitled to partition? ii) Whether the suit properties are ancestral properties? iii) Whether there are any debts? iv) Whether the suit is bad for non joinder of necessary parties? v) Whether the will dated 18.06.1986 is valid and binding on the plaintiff? vi) Whether the suit is properly valued? vii) To what the relief the plaintiff is entitled to? 5. After framing the issues, in order to substantiate the case, the plaintiff examined himself as PW1 and marked 14 documents as Exs.A1 to A14. On the side of the defendants, two witnesses were examined as DWs 1 and 2 and 43 documents were marked as Exs.B1 to B43. 6. On completion of trial and hearing the arguments advanced on either side, the trial Court dismissed the suit. Challenging the same, the plaintiff has filed this appeal. 7. The learned counsel for the appellants would submit that the suit properties are ancestral properties originally belonged to the plaintiff's father Arunajadesam Pillai who got the properties through a partition deed dated 31.03.1932 between him and his brothers and thereafter, Arunajadesam Pillai was in possession of the suit properties. Challenging the same, the plaintiff has filed this appeal. 7. The learned counsel for the appellants would submit that the suit properties are ancestral properties originally belonged to the plaintiff's father Arunajadesam Pillai who got the properties through a partition deed dated 31.03.1932 between him and his brothers and thereafter, Arunajadesam Pillai was in possession of the suit properties. The plaintiff, his brother Ramanathan and his sister Pattammal who are the legal heirs of Arunajadesam Pillai, were all enjoying the suit properties as joint family properties even after the death of Arunajadesam Pillai, as co-parceners. The said Ramanthan during his life time was looking after the affairs of the joint family only as Manager or Karta of the joint family and he redeemed the mortgage debts of the suit properties from and out of the joint family income and he only received all the usufructs from the suit properties and he has no exclusive right and title over the suit properties. At no point of time, the plaintiff relinquished his right over the suit properties. 8. He would further submit that whatever the documents stood in the name of the plaintiff's father, were subsequently stood in the name of Ramanathan for the common interest of all the coparceners in the suit properties. Therefore, after the death of Ramanathan, when the plaintiff came to know that the 1st defendant is in possession, he issued a notice to him. Though the 1st defendant claimed to be a legal representative of Ramanathan by way of a will dated 18.06.1986 and therefore he is in possession, according to the plaintiff, he never enjoyed the properties exclusively for himself and the trial Court failed to appreciate the same and erroneously held that Ramanathan alone redeemed the mortgage debts and mutations also had taken place in his name and he executed the said will in favour of the 1st defendant. Therefore, the judgment and decree of the trial Court is liable to be set aside and the appeal has to be allowed. 9. The learned counsel for the 1st respondent would submit that the suit properties are not ancestral properties. The plaintiff never claimed any right in any of the suit properties during the life time of A.Ramanathan. Under the partition deed dated 31.01.1932, the plaintiff's father got the first schedule property along with the debts provided under the said partition deed. 9. The learned counsel for the 1st respondent would submit that the suit properties are not ancestral properties. The plaintiff never claimed any right in any of the suit properties during the life time of A.Ramanathan. Under the partition deed dated 31.01.1932, the plaintiff's father got the first schedule property along with the debts provided under the said partition deed. The plaintiff never took steps to discharge the mortgage debts and only Ramanathan discharged the same and got exclusive possession of the suit properties. Even after the death of Ramanathan, the 1st defendant sent a letter to the Tahsildar, Thiruvidaimaruthur, to change the patta in his name from the name of Ramanathan as per his will, as such, the 1st defendant became the absolute owner of the suit properties and the plaintiff also not denied the said will. Even otherwise, the plaintiff cannot dispute the will, because, the will got probated. Though the 1st defendant did not plead adverse possession, the trial Court finding that the entire pleadings would go to show that Ramanathan enjoyed the suit properties exclusively as his own and the plaintiff had relinquished his rights, adverse possession would not attract, but however, the trial Court holding that the 1st defendant got the suit properties by way of ouster, dismissed the suit. The appellants are working in Chennai and they never came to the native and only Ramanathan alone was enjoying the suit properties and cleared the mortgage debts and other debts. Therefore, the trial Court rightly dismissed the suit and there is no merit in this appeal which is liable to be dismissed. 10. Heard both sides and perused the records. 11. The relationship is not disputed. Admittedly, the suit properties are ancestral properties and the plaintiff's father Arunajagesdam Pillai obtained the suit properties through a registered partition deed dated 31.03.1932 between him and his brothers. Arunajagesdam Pillai died in 1970 intestate leaving behind his son/plaintiff, daughter/Pattammal and another son/Ramanathan. The plaintiff's sister Pattammal died in 1982 leaving behind her daughter-in-law Padmavathi Ammal/2nd defendant, widow of her per-deceased son Rathinasabapathi who had one son Viruthachalam/3rd defendant and two daughters/defendants 4 and 5. Admittedly, Ramanathan died in 1988 as a bachelor and therefore, his share shall be equally devolved upon other heirs. 12. The case of the plaintiff was that the suit properties are ancestral properties jointly enjoyed by the legal heirs of Arunajagesdam Pillai. Admittedly, Ramanathan died in 1988 as a bachelor and therefore, his share shall be equally devolved upon other heirs. 12. The case of the plaintiff was that the suit properties are ancestral properties jointly enjoyed by the legal heirs of Arunajagesdam Pillai. After the death of the plaintiff's father and sister, the plaintiff was enjoying the suit properties along with his brother Ramanathan and legal representatives of the deceased sister Pattammal. Since the plaintiff was working in out-station, Ramanathan was enjoying the properties as Manager of the joint family properties and even during the life time of the plaintiff's father, the plaintiff's father along with the plaintiff and his brother Ramanathan executed a usufructuary mortgage over the suit properties on 21.06.1933. So, it clearly shows that even during the life time of the plaintiff's father, they all enjoyed the suit properties as joint family properties and mortgaged the properties and till the death of the plaintiff's father in 1970, the suit properties were enjoyed as joint family properties. After the death of the plaintiff's father, the plaintiff's brother Ramanathan enjoyed the suit properties as Manager of the joint family in order to look after the affairs of the joint family properties. The plaintiff also sent a letter to the Tahsildar in Ex.B12 to issue a patta in the name of his brother Ramanathan. Even in that letter, he clearly stated that he has no objection to transfer the patta in the name of Ramanathan from the name of the plaintiff's father. He has nowhere relinquished his rights and since his brother Ramanathan was looking after the affairs of the joint family properties as a Manager, by receiving the rent and other income, Ramanathan redeemed the suit properties. Since because Ramanathan settled the mortgage debts, it does not mean he is having absolute rights over the suit properties. Even assuming that Ramanathan settled the mortgage dues from his pocket, still, he cannot claim absolute right over the joint family properties. At best, he can only claim the share of the debt which he paid to the debtors or the mortgagee. Even assuming that Ramanathan settled the mortgage dues from his pocket, still, he cannot claim absolute right over the joint family properties. At best, he can only claim the share of the debt which he paid to the debtors or the mortgagee. Therefore, since because the document shows that Ramanathan cleared the mortgage dues and further, the plaintiff gave a letter to the Tahsildar to transfer the patta in the name of his brother Ramanathan from his father's name, thereby he has relinquished his right, it cannot be said that Ramanathan had become the absolute owner of the suit properties. 13. Though the 1st defendant not denied the relationship and he claimed title only through the will said to have been executed by Ramanathan under Ex.A6, now the question is whether Ramanathan enjoyed the suit properties exclusively as his own properties and he got title by ouster. In this case, admittedly, the properties are ancestral properties which were obtained by the plaintiff's father through a partition in 1932 and during the life time of the plaintiff's father, the plaintiff's father along with the plaintiff, his brother Ramanathan and sister Pattammal enjoyed the suit properties as joint family properties. At that time, the plaintiff's father along with the plaintiff, his brother and sister jointly executed mortgage deeds one among the document is Ex.B14 which clearly shows that all of them enjoyed the properties jointly and the properties are joint family properties. Till the life time of the plaintiff's father, mutations had taken place only in the name of the plaintiff's father not in the joint name of all the persons. During his life time, the plaintiff's father was enjoying the properties for and benefit of the joint family and executed mortgage deeds and borrowed some money and some of the suit properties were also leased out for rent. So, after the life time of the plaintiff's father, in order to proceed dispute against the tenants and also to collect rent and to proceed with eviction proceedings, the plaintiff had given permission to Ramanathan. The plaintiff gave a letter to the Tahsildar to transfer the patta in the name of his brother Ramanathan from his father's name, however, patta has been transferred only in the year 1987 under Ex.P33 dated 25.08.1987. Till that date, all the patta stood in the name of the plaintiff's father. The plaintiff gave a letter to the Tahsildar to transfer the patta in the name of his brother Ramanathan from his father's name, however, patta has been transferred only in the year 1987 under Ex.P33 dated 25.08.1987. Till that date, all the patta stood in the name of the plaintiff's father. Though kist receipts stand in the name of Ramanathan and the mortgage discharge receipts are also in the name of Ramanathan, nowhere it is stated that the plaintiff relinquished his rights and Ramanathan paid kist enjoying the suit properties as his own excluding the right of the plaintiff. Though all the proceedings and also the revenue records stand in the name of Ramanathan, it is all only very recently before filing of the suit and even the documents would clearly show that the plaintiff never relinquished his rights and whatever the documents stand in the name of Ramanathan, it is only as a Manager of the joint family. 14. Ramanathan was in possession of the suit properties as Manager of the joint family. Therefore, all the documents show that Ramanathan enjoyed the properties and from the joint family income, he paid all the tax and other expenses and made improvements. Therefore, once it is admitted that it is the joint family properties and the plaintiff is a co-parcener, unless it is proved that there was a partition and the parties divided the properties or otherwise, the plaintiff had relinquished his rights over the suit properties or Ramanathan enjoyed the properties adverse to the plaintiff and with the knowledge of the plaintiff without his interruption more than the statutory period, the right of the plaintiff cannot be said to be ousted. Admittedly, in this case, no partition took place between the co-parceners i.e., the plaintiff, his brother Ramanathan and his sister Pattammal. The plaintiff had not given any relinquishment of his share. Though Ex.B12 shows that he has sent consent letter to transfer patta from the name of his father to his brother's name viz., Ramanthan, it does not mean that the plaintiff has relinquished his right or lost his right. The plaintiff had not given any relinquishment of his share. Though Ex.B12 shows that he has sent consent letter to transfer patta from the name of his father to his brother's name viz., Ramanthan, it does not mean that the plaintiff has relinquished his right or lost his right. Even if any records in the joint family properties stand in any one of the names of the co-parcerners, it does not mean that the coparcener in whose name the mutation taken place is having exclusive right over the property and further, the patta was transferred only in the year 1987 and the suit was filed in the year 1989. Though the 1st defendant claimed title through a will, at best, he is entitled to get the share of Ramanathan and not the entire suit properties. Though the 1st defendant is claiming right through a will, he is not a biological coparcener and he is only a legal representative of Ramanathan through the will. Since because the entire properties are covered under the will, it does not mean Ramanathan enjoyed the properties exclusively as of his own and he has exclusive title over the entire properties by way of ouster. Therefore, in the absence of any specific plea and evidence that Ramanathan enjoyed the properties as his own exclusively without the interference of the plaintiff and with the knowledge of the plaintiff, he cannot claim the ouster. Further, the 1st defendant has also not pleaded either ouster or adverse possession. The trial Court wrongly came to the conclusion that even though the 1st defendant had not pleaded ouster/adverse possession, but the entire pleadings show that he claims exclusive possession and therefore, given a finding that the plaintiff lost his title by way of ouster. 15. As already stated, once it is admitted that the suit properties are ancestral properties and enjoyed as joint family properties, in the absence of any partition/relinquishment, the plaintiff cannot be said to be lost his right by way of ouster/adverse possession. One cannot be refused his rights and denied his share. 15. As already stated, once it is admitted that the suit properties are ancestral properties and enjoyed as joint family properties, in the absence of any partition/relinquishment, the plaintiff cannot be said to be lost his right by way of ouster/adverse possession. One cannot be refused his rights and denied his share. But, unfortunately, the trial Court wrongly interpreted the pleadings and all the documents and came to the conclusion that Ramanathan alone settled the mortgage dues and also he participated in all the proceedings and therefore, he was enjoying the suit properties as his own and he executed a will in favour of the 1st defendant giving the entire suit properties and therefore, the plaintiff lost title by way of ouster, which is erroneous. As already stated, the suit properties are ancestral properties and admittedly, the plaintiff is a co-parcener and no material shown that he relinquished his right and title. Even the patta transferred in the name of Ramanathan was in the year 1987 and the suit was filed in 1989. Unless it is pleaded and proved that the joint family properties lost its character, the coparceners are entitled to get their respective shares from the joint family properties and all the documentary evidence are not sufficient to show that the plaintiff lost his rights over the suit properties and he lost his claim in the suit properties. 16. Therefore, this appeal is allowed and the judgment and decree passed by the trial Court is set aside. The appellants 2 to 7 are entitled to 4/9 share of the deceased 1st appellant/plaintiff. In a recent judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549, Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others, it has been held as follows:- ''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings. 34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.'' 17. As per the above latest decision of the Hon'ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceedings after passing the preliminary decree. Therefore, the respondents are directed to divide the property by metes and bounds and hand over 4/9 share from the suit properties to and in favour of the appellants within a period of two months from the date of receipt of a copy of this judgment, otherwise, the trial Court is directed to initiate suo motu final decree proceedings and appoint an advocate commissioner and proceed with the same and pass a final decree. Since already the suit is pending from 1989, all the final decree proceedings shall be completed within a period of six months from the date of its initiation. Registry is directed to send the original records to the trial Court concerned along with the judgment and decree made in this appeal within a period of fifteen days from the date of this judgment. No costs.