N.Balakrishnan vs Chandra

The suit has been field for partition dividing the suit property into 1/6th share and allot one such share each to the plaintiffs and for declaring the Settlement Deed executed on 12.12.1990 as null and void and also for accounts.

The brief facts of the case of the plaintiffs, are as follows: The plaintiffs and the defendants 1 and 2 are the sons and daughters of late Mr.Narayanasamy and Mrs.Annammal and all of them were doing milk vending business. The defendants 2 and 3 approached Mr.Narayanasamy and demanded to buy a house at No.1, Pudupalli Street, Mylapore in the name of 2nd defendant. Accordingly, the said Narayanasamy, parents of the plaintiffs, agreed to purchase the said house in the name of 2nd defendant and paid a sum of Rs.27,000/- in the year 1977. However, the 3rd defendant had purchased the said house in his name, wherein the 2nd and 3rd defendant got shifted. Thereafter, during the year 1980, another house at Door No.62, Pudu Street, Mylapore of an extent of 4436 sq.ft. was purchased for a sum of Rs.1,15,000/- from and out of the income derived from the joint family

business and from the savings of the 2nd plaintiff. 2.1. According to the plaintiffs, the 3rd defendant by joining hands with his friend/builder viz., Govindasamy, had conveyed the extent of 1961 sq.ft, which stood in the name of 1st defendant and an extent of 439 sq.ft. being a part of land standing in the name of plaintiffs'' mother, viz., Mrs.Annammal vide sale deed dated 13.07.1994. Further, by playing fraud, the 3rd defendant created a Settlement Deed dated 12.12.1990 conveying 900 sq.ft. in favour of defendants 1 and 2, without giving any share to the plaintiffs. Thereafter, the 1st defendant filed a suit in O.S.No.68/2009 on the file of VI Additional City Civil Court, Chennai seeking for partition against the 2nd defendant based on the Settlement Deed and the same is pending. According to the plaintiffs, they came to know about the suit proceedings only in the month of September 2010 and thereafter immediately, they caused a legal notice dated 26.10.2010 calling upon the defendants to effect partition of 1/6th share each over the suit schedule property and for mesne profits. Since the defendants did not come forward to effect partition, the plaintiffs filed the present suit.

The case of the 2nd defendant is as follows: According to the 2nd defendant, all of them were not engaged in milk vending business. The 1st plaintiff was employed in the Government press and the 2nd plaintiff was employed in Government Co-operative Store and since he was ousted from job, he was doing trading business at Parrys. The 2nd defendant, being the girl child in the family, made to work much in house for preparation the essentials of the cattle farm. After the death of their mother, the 1st defendant, who is her sister, viz., Chandra, also stayed with the 2nd defendant in her home and she had no issues. After several years, the 1st defendant filed a suit against the 2nd defendant in O.S.No.68/2009 and the said suit was dismissed for default and to restore the same, an application also has been filed by the 1st defendant. Further, the 2nd defendant denied the allegations made against her husband that she cheated her parents and purchased a property from and out of the money that has been given by the plaintiffs and the defendants. Further she contended that their parents were in possession of several properties at Chennai and most of the properties were disposed and sold away by them on several occasions and the plaintiffs 1 and 2 have taken huge money for their business and the defendants have not raised any objection for the same.

3.1. The 2nd defendant denied the contention that the property at Door No.62, Pudu Street, Mylapore was purchased out of the income derived from the joint family property. The property was purchased in the name of their mother and the 1st defendant in the year 1980 out of the self earned income of their mother and the said fact was also known to the plaintiffs. The 2nd defendant denied the allegation that the plaintiffs had the knowledge about the Settlement Deed executed by their mother, only when the suit for partition was filed in the year 2010. After the death of their parents, the plaintiffs are claiming title to the property by filing this suit of partition. According to the 2nd defendant, the 1st defendant was tutored by the plaintiffs after the death of their parents. The main intention of the plaintiffs are to extract money from her and her husband by filing concurrent suit over the suit property. Hence, she prayed for dismissal of the suit.

Based on the above pleadings, this Court framed the following issues vide order dated 30.01.2014:

Whether the Settlement Deed dated 12.12.1990 executed by late Annammal in favour of the defendants 1 and 2 is genuine and valid?

Whether the properties are joint family properties and as stated the plaintiffs and defendants are entitled for any share?

Whether the suit is barred by limitation?

Whether the plaintiffs are entitled to 1/6th share as claimed?

Whether the plaintiffs are entitled for accounts and mesne profits?

To what other reliefs the plaintiffs are entitled to?

On the side of the plaintiffs, P.W.1 to P.W.3 were examined and Exs.P1 to P7 were marked and on the side of the defendants, D.W.1 was examined and Ex.D1 was marked. The details of the documents are here under:- Exhibits produced on the side of the plaintiffs:

S. No Exhibits Date Description of documents

1 P-1 28.05.1980 Sale Deed executed by V.Ananthan and others in favour of 1st defendant

2 P-2 28.05.1980 ale Deed executed by V.Ananthan and others in favour of Annammal

3 P-3 12.12.1990 Settlement Deed between 1st defendant and 2nd defendant

4 P-4 13.07.1994 Sale Deed by 1st defendant Annammal

5 P-5 09.02.1996 Sale Deed executed by Annammal in favour of one A.Natarajan

6 P-6 21.01.2011 Encumbrance certificate

7 P-7 26.10.2010 Legal notice issued by the plaintiff

Exhibits produced on the side of the defendants:

S. No Exhibits Date Description of documents

1 D-1 19.9.2009 Settlement Deed

Witnesses examined on the side of the plaintiffs:

P.W.1. - N.Balakrishnan

P.W.2 - B.Kalaiselvi

P.W.3 - Veeraraghava Naicker

Witnesses examined on the side of the defendants

D.W.1 - P.Radha

Heard, the learned counsel appearing for the plaintiffs, the learned counsel appearing for the defendants and perused the records.

The learned counsel for the plaintiffs submitted that the plaintiffs and the defendants 1 and 2 are the sons and daughters of late Narayanasamy and that, the suit property was purchased out of the income derived from the joint family business. The learned counsel for the plaintiffs further submitted that the plaintiffs and the defendants have also contributed their hard earned money for the purchase of the said property. The evidence of D.W.1 would clearly establish the fact that the said Narayanasamy had purchased not only the suit property but also other properties from and out of the income derived from the joint family business of milk vending. When that being so, executing the Settlement Deed dated 12.12.1990 in favour of the defendants 1 and 2 by their mother is not valid and is not binding on the plaintiffs.

It is submitted by the learned counsel for the plaintiffs that though the other properties were sold out by the mother of the plaintiffs and the defendants 1 and 2, the suit property is still available for partition. It is the contention of the learned counsel that the settlement Deed 12.12.1990 has not been proved in the manner known to law. It is the submission of the learned counsel for the plaintiffs that since the settlor has not been examined before the Court, the alleged settlement Deed is not valid in the eye of law. Hence, it is submitted by the learned counsel for the plaintiffs that since the properties are joint family properties, the plaintiffs are entitled to partition. In support of his arguments, the learned counsel for the plaintiff has relied on the judgments reported in Valliammal vs. Sokkammal [2012 (4) CTC 639]; Uthaya Priya and another v. Visalakshi and Another [2015 (1) MWN (Civil) 465]; Tamilkodi v. N.kaliamani [2015 (4) CTC 771] and C.Velu v. P.Subramanian [2009 (6) CTC 78].

Countering the arguments advanced by the learned counsel for the plaintiffs, the learned counsel for the 2nd defendant submitted that though it is the case of the plaintiffs that the suit properties are joint family properties, the same has not been established. The learned counsel for the 2nd defendant further submitted that the suit property was settled in favour of the defendants 1 and 2 by the said Annammal, the mother of the plaintiffs and the defendants 1 and 2 and the same was also known to the plaintiffs. However, the plaintiffs have instituted the suit against the defendants for illegal motive. It is further submitted that the allegation that the plaintiffs and the defendants were doing joint family business has not been established. It is also submitted that the Settlement Deed, which is of the year 1990, has not been challenged all these years. All these facts clearly indicate that the suit is nothing but abuse of process of law.

It is the further contention of the learned counsel for the 2nd defendant that in the year 2009, the 1st defendant has settled the property in favour of the plaintiffs 3 and 4, wherein the 1st plaintiff stood as attesting witness. In the above documents, there was a clear mention about the Settlement dated 12.12.1990. Hence, it is submitted that the suit is nothing but abuse of process of law and that, there was no joint family business. Hence, the learned counsel for the 2nd defendant prayed for dismissal of the suit. Issue Nos:1 and 2

The suit has been filed for partition by assailing the Settlement Deed executed by the mother of the plaintiffs and the 2nd defendant in favour of the defendants 1 and 2 on 12.12.1990. The plaintiffs and the defendants 1 and 2 are the children of one Narayanasamy and Annammal. The main contention of the learned counsel for the plaintiffs is that their parents were generating income by rearing cow and selling the milk. It is contended by the plaintiffs that they have also contributed and generated income, out of which several properties were purchased by their father in the name of their mother, Annammal. It is contended that one such property was purchased in the name of 1st defendant since she left the matrimonial home and was residing with her parents. The suit is filed assailing the Settlement Deed executed by the mother of the plaintiffs and the defendants 1 and 2 in favour of defendants 1 and 2 in the year 1990.

It is also the contention of the plaintiffs that an extent of 2475 sq.ft. was purchased in favour of their mother on 18.5.1980 and another extent of 1961 sq.ft was purchased in the name of 1st defendant on 28.5.1980. It is also the contention of the plaintiffs that all the properties were purchased out of joint family income and some of the properties were already sold out and the suit property alone is available for partition.

According to the plaintiffs that the settlement Deed dated 12.12.1990, in favour of the defendants 1 and 2 in respect of the suit property is not binding on them, as the same has been obtained by 3rd defendant, who is the husband of the 2nd defendant, by impersonating the mother of the plaintiffs, namely, Annammal.

In the light of the above specific allegation of the plaintiffs, when the entire pleadings in the plaint is analysed, though the plaintiffs have pleaded in paragraph ''3'' that the plaintiffs and the defendants 1 and 2 were also doing milk vending business along with their father, in paragraph ''4'', it is specifically pleaded by the plaintiffs that their father was very sincere in his business and it flourished. It is further stated in paragraph ''4'' that he owned more than 25 cows and was generating huge monthly income. He did not engage any laborers for his business and all the works such as, milk distribution, maintenance of cows and its shed were maintained only by the plaintiffs and as such, the entire amounts which they earned towards vending of milk was only their profit. Except stating so, there was no particulars given in the plaint itself with regard to the nature of income derived from such business as well as the nature of contribution made by the plaintiffs and 1st defendant herein. Further Paragraph ''14'' of the plaint proceeded to show as if father was doing milk vending business.

Be that as it may, when the person asserts that the suit property has been purchased out of joint family business, it is for him to establish the nature of business and the income derived from such business before the Court with convincing evidence. There cannot be presumption that the property is joint family property because they are living jointly.

It is admitted fact that Annammal, the mother of the plaintiffs, had purchased the suit property to an extent of 1 ground 75 sq.ft and other property in her name under Ex.P2, Sale Deed dated 28.5.1980. The plaintiff''s father Narayanasamy also purchased property measuring an extent of 1961 sq.ft. situate at premises No.69 (old No.39), New Street, Mylapore, under Ex.P1, however, the said property is not the subject matter of the partition suit. It is not in dispute that mother of the parties, namely, Annammal, conveyed various properties purchased by her under Exs.P2, which is evident from Exs.P4 and P5, Sale Deeds. Similarly, under Ex.P3, Settlement Deed dated 12.12.1990, the said Annammal settled an extent of 900 sq.ft. in favour of defendants 1 and 2. In fact, in the said settlement, life interest was given to 1st defendant and vested remainder to 2nd defendant. The said recital itself would clearly show that the said Annammal has purchased the above property out of her own income on 28.5.1990.

But, it is the contention of the learned counsel for the

plaintiffs that the said Settlement Deed has not been proved in the manner known to law. Though it is contention of the plaintiffs that the Settlement Deed has been executed by impersonating the said Annammal, absolutely, there is no evidence whatsoever, placed before this Court to substantiate the same.

In this regard, it is useful to refer Ex.D1, Settlement Deed dated 14.09.2009 said to have been executed by 1st defendant in favour of Kalaiselvi and Yasodha, who are the plaintiffs 3 and 4 herein. The above Settlement Deed came to be executed on 14.9.2009, wherein 1st defendant admitted the Settlement Deed executed by her mother on 12.12.1990. In Ex.D1 document, in favour of plaintiffs 3 and 4, in which 1st plaintiff was one of the attesting witnesses. This fact is very much admitted by the plaintiff, P.W.1, himself, who is the elder son in the family, in his evidence.

A perusal of deposition of P.W.1, would clearly indicate that he has signed as attesting witness in Ex.D1. P.W.1 also stated that he came to know about the Settlement Deed executed by his mother Annammal, immediately, after his death. He also admitted that she did not initiate any legal proceedings at that time. In the entire cross examination, P.W.1 did not deny the execution and attestation by her mother.

P.W.2, who is the 3rd plaintiff herein, in her cross examination, admitted that she has not stated anything in her plaint about the Settlement Deed executed by the 1st defendant. Similarly, she has admitted that only in the year 2008, after the demise of her mother, she came to know about the Settlement Deed executed by her mother in favour of the defendants 1 and 2 herein. Similarly, the evidence of P.W.1 with regard to the execution of the Settlement Deed by her mother is not seriously denied in the entire cross examination. Since the factum of execution of Settlement Deed is not denied seriously, this Court

is of the view that merely because the attesting witness has not been examined, it cannot be held that the document is totally inadmissible one. When the execution of Settlement is not denied, it is not necessary to call the attesting witness to prove the said document. Therefore,this Court is of the view that the judgments cited by the learned counsel for the plaintiffs in this regard are not applicable to the facts of the case.

It is pertinent to point out that P.W.1 himself was aware of the settlement executed by his mother giving life interest to the 1st defendant and vested remainder to 2nd defendant. In order to defeat the rights of the 2nd defendant, the plaintiffs and the 1st defendant colluded together and created Ex.D1, Settlement Deed and the same was also attested by P.W.1. As stated above, in the very same document, execution of Settlement Deed was very much admitted by P.W.1. It is also stated that others also aware of the execution of Ex.D1. In the cross examination, P.W.1 clearly deposed that he completed his in studies in 1997 and joined Government service in the year 1974. His evidence would also disclose that he only advised Chandra, 1st defendant herein, to file a suit in OS.No.68 of 2009 before the City Civil Court for partition on the basis of the Settlement deed. Besides he also arranged Advocate for filing the suit and he met all expenses.

Similarly, P.W.2, in her evidence also admitted that they all went to the Registrar Office. She also admitted that she funded the 1st defendant to conduct the suit filed by her against the 2nd defendant. Further, in her evidence, P.W.2 admitted that she and her sister, Yasodha, 4th plaintiff herein, Balakrishnan, and Chandra also visited the Registrar Office to register Ex.D1 document along with advocate one Srinivasa Raghavan. It is worthy to state that the said Advocate, Srinivasa Raghaven, who drafted Ex.D1, was prosecuting the suit being OS.No.68 of 2009 filed by 1st defendant against the 2nd defendant before the City Civil Court. This fact is also admitted by P.W.1. The aforementioned facts would clearly prove the fact that the settlement executed by the mother of the parties is already known to them and only to get over the same, they got another Settlement Deed under Ex.D1 in favour of the plaintiffs 3 and 4 from one of the beneficiary, namely, 1st defendant herein.

Therefore, in view of the above stated facts, this Court is of the view that having admitted the execution of the settlement in the year 1980 now the plaintiff cannot approbate and reprobate by contending that his mother has not executed the said settlement Deed. Therefore, the contention of the plaintiffs'' counsel that the Settlement Deed was not proved in the manner known to law cannot be sustained. As already discussed above, as per the proviso of Section 68 of the Indian Evidence Act, once the document itself is not specifically denied, the question of examining the attesting witnesses to prove the registered document except Will does not arise.

In the above background, now it has to be analysed as to whether the suit properties were purchased out of the joint family income. Though, as already stated above, in paragraphs 3 and 4, it is pleaded that the plaintiffs and the defendants 1 and 2 had also supported their father in milk vending business, it is to be noted that in paragraph 4 of the pleadings in the plaint, it is clearly stated that his father was sincerely doing milk vending business along with his wife. In this regard, when the evidence of P.W.1, who is the elder son of the family, is carefully perused, in the cross examination, he has categorically admitted that he completed studies in the year 1967 and he got married in 1973 and thereafter joined Government Service in the year 1974. He has further stated that only his parents were maintained cows and doing milk vending business. The above specific admission of P.W.1 would clearly indicate that rearing cow and selling milk was done only by the parents of the parties. Therefore, merely because the children were living with parents at the relevant time, it cannot be construed that the entire property was joint

family property. When the entire evidence of P.W.1, is analysed, it is seen that his father has purchased the property at Mannadi and sold the same for a sum of Rs. 2,70,000/-. Further, from the sale proceeds, a sum of Rs.1,35,000/- was given to the 2nd plaintiff and thereafter, he purchased another property in his name for a sum of Rs.1,20,000/-. P.W.1 further admitted that his father, out of his income from the business, has purchased several properties. The above properties were also sold between the year 1978 and 1979. Thereafter, the suit property, i.e. Mylapore property, was purchased in the name of 1st defendant and Annammal.

As already discussed, the suit property to an extent of 4436 sq.ft, was purchased by the name of the mother and 1st defendant. The recitals itself would clearly indicate that the said property was purchased out of the income of the mother of the plaintiffs, Annammal. That apart, P.W.1 himself has admitted in the cross examination that he has not paid any amount for the purchase of the suit property. Therefore, now it cannot be contended by the plaintiffs that the above property is joint family property. As per the evidence available on record, 1st defendant had left the matrimonial home and living with the parents. Therefore, father would have probably purchased the property for the well being of the daughter and also for welfare of the mother. Therefore, now it cannot be contended by the other children that the above property is also joint family property. Further the evidence of P.W.1 would clearly show that he got married in the year 1973 and joined in the Government service in the year 1974. Therefore, plea taken by him that he has also contributed to the family in maintaining cows and selling milk is highly improbable. Having married in the year 1974, he would not have contributed money to the family for the purpose of purchase of property in the name of the some other member and hence, the said plea is highly improbable and cannot be countenanced at all.

Admittedly, till the death of the mother, Annammal, no body has raised any dispute over the document executed by her. Subsequently, there was some dispute between the 1st defendant and the 2nd defendant and as a result, the suit has been filed by the 1st defendant against the 2nd defendant with the support of the plaintiffs, which has been admitted by P.W. 1 and P.W.2. P.W.2, 3rd plaintiff herein, in her evidence, also stated that her mother had paid money to her and her parents spent money to her marriage as well as her other sisters. Therefore, it is clear that the parents paid money to the plaintiffs, even after their marriage and entire family was run by the father and mother and elder sister, i.e. 1st defendant herein. Further she has also admitted that her parents were illiterate and they purchased several properties. The specific admission of P.W.2 would clearly indicate that family was in fact run by the parents and 1st defendant. Therefore, now it cannot be contended by the plaintiffs that the properties are joint family properties.

It is curious to note that other than 900 sq. ft of land, which is the subject matter of the suit, all other extent of land was already sold by mother to the third parties on various dates. Those sales have not been challenged by the plaintiffs. The property, which stands in the name of the defendants 1 and 2, as per the Settlement Deed, alone sought to be partitioned. P.W.2 in her evidence admitted that after selling the property, her mother gave money to her two brothers and spent money to her marriage and another sister. Therefore, the question of joint family property does not arise at all. The entire oral and documentary evidence would clearly show that only the parents were all along maintaining the family and spent money towards well being of the children.

In this regard, P.W.3 one of the relatives of the plaintiff also examined. His evidence shows that only Narayanasamy and Annammal were rearing cows and selling milk at Mannadi. All these facts would clearly prove the fact that the entire property were purchased by the parents out of their hard work. Merely because the children were living with the parents, it cannot be construed that they have also contributed in the milk vending business. Though P.W.1 in the cross examination admitted that his father and other members in the family were doing milk vending business, that itself cannot determine the fact that the property was purchased out of the joint family nucleus. The evidence of P.W.1 and P.W.2 would clearly disclose the fact that their father had derived income from the property and also helped his children to purchase some other properties in their name. All these facts would clearly show that Settlement Deed dated 12.12.1990 was executed only for the well being of the wife and the 1st daughter, who was deserted by her husband. Hence, this Court is of the view that the plaintiffs have not established the joint family income and contribution to the family in purchasing the property in the name of their mother. Whereas the evidence of P.W.1 clearly proved the fact that father and mother was doing milk vending business and acquired several properties. Even assuming that only father contributed money to purchase property in the name of his wife, the above property cannot be construed as a joint family property at all, as the same is done only for the benefit of wife. The children now cannot assail the execution of the Settlement Deed by her mother in the year 1980. Accordingly, these issues are answered. Issue Nos. 3 to 6:

The instant suit has been filed in the year 2011 assailing the document, which was executed in the 1990. P.W.1, 1st plaintiff, is the elder son in the family. He is very well aware of the transaction in the family. That being the case, he ought to have filed the suit at the early stage but he has filed the suit only in the year 2011 assailing the document of the year 1990, which is barred by limitation. That apart, as already discussed in issue Nos. 1 and 2, the active participation of the plaintiffs in execution of Ex.D1 and their admission with regard to earlier Settlement Deed of the year 1980, would go to show that they were aware of the documents much long back. Therefore, the instant suit, which has been filed in the year 2011, to assail the documents of the year 1990, is barred by limitation. These issues are answered accordingly.

In view of the foregoing reasons, this Court is of the view that the plaintiffs are not entitled to any share in the suit properties. In the result, the suit is dismissed. However, there shall be no order as to costs.