Neelamegam vs Gopalakrishan (died)

P.R. Shivakumar, J.—Notice before admission was issued to the Respondents and the Respondents are represented by a Counsel.

The arguments advanced by Mr. M. Thilagar, learned Counsel for the Appellant and by Mr. S. Srinivasa Raghavan, learned Counsel for the Respondents are heard.

The Plaintiff in Original Suit No.95 of 2001 on the file of the District Munsif Court. Sivaganga is the Appellant in the Second Appeal and the Defendants in the Original Suit were his brother-Gopalakrishnan, mother-Nagarathinam Ammal and sister-Muthammal During the pendency of the Suit, Second Defendant-Nagarathinam Ammal died and she had executed a Gift Settlement Deed, dated 17.11.2000 in favour of Gopalakrishnan/First Defendant in respect of the Suit properties and the same has been marked as Ex.B15. In respect of other properties held by her, she had also left a Will, dated 17.11.2000 produced as Ex.B16. The Suit properties were the properties purchased in the name of Nagarathinam Anmmal/Second Defendant. The certified copies of Sale Deeds are Exs.B1 to B4. The husband of Nagarathinam Ammal is one Sundararajan Chettiar. Since Nagarathinam Ammal had been suffering from leprosy, her husband-Sundararajan Chettiar, who was doing business in Malaysia, contracted a second marriage.

The Appellant-Neelamegam, First Defendant-Gopalakrishnan and Third Defendant-Muthammal were the sons and daughter of Sundararajan Chettiar born through the Second Defendant-Nagarathinam Ammal. It is the case of the Appellant Plaintiff that one Velammal, mother of Sundararajan Chettiar and her husband Govindan Chettiar did have some ancestral properties regarding which a Partition was effected on 17.2.1992 and that separate properties were allotted in the said Partition to Sudarrajan Chettiar, Neelamegam - the Plaintiff and Gopalakrishnan-First Defendant and that Nagarathinam Ammal - the Second Defendant was given 150 sovereigns of gold jewels and Rs. 50,000 in cash towards her maintenance, whereas, the Third Defendant-Muthammal was given 15 sovereigns of gold jewels and Rs. 40,000. It is the further case of the Plaintiff that the Suit properties formed part of the properties allotted to the share of the Appellant Plaintiff. He filed the Suit for Declaration of his title to the Suit properties and for a consequential Injunction against the Defendants not to disturb his peaceful possession and enjoyment of the same.

The Suit was resisted by the Defendants contending that the Suit properties were the separate properties of Nagarathinam Ammal - the Second Defendant and that the claim of the Plaintiff as if he got them towards his share in the alleged Partition that took place on 17.2.1992 was false.

After framing of necessary issues a trial was conducted, in which, five Witnesses were examined as PWs. 1 to 5 & 24 documents were marked as Exs.A1 to A24 on the side of the Plaintiff, whereas four Witnesses were examined as DWs 1 to 4 and 31 documents were marked as Exs.B1 to 31 on the side of the Defendants. The Report of the Commissioner, appointed by the Trial Court, and the Plans submitted by him were marked as Court documents, namely, Exs.C1 to C3.

The learned Trial Judge, on an appreciation of evidence came to the conclusion that the Suit properties were the separate properties of the Second Defendant-Nagarathinam Ammal and that the Partition, dated 17.2.1992 alleged by the Plaintiff was not true. Accordingly, the learned Trial Judge, by a Judgment and Decree dated 30.6.2009, dismissed the Suit with costs.

The said Decree of the Trial Court, when challenged before the Lower Appellate Court, namely, the Sub-Court. Sivaganga, the First Defendant-Gopalakrishnan also died (in fact alleged to have been murdered) and his Legal Representatives were impleaded. The learned Lower Appellate Judge, on a re-appreciation of evidence, concurred with the evidence of the Trial Court and confirmed the Decree passed by the Trial Court by a Judgment and Decree, dated 24.9.2010. It is as against the said Decree of the Lower Appellate Court confirming the Decree of the Trial Court, by which, the Suit filed by the Appellant was dismissed, the present Second Appeal has been filed

The only contention of the Appellant herein is that though the Suit properties were the properties purchased under the Sale Deeds of certified copies of which have been marked as Exs.B1 to B4, in the name of Nagarathinam Ammal - the deceased Second Defendant, they were in fact purchased with the funds of Joint Family, of which, Sundarajan Chettiar, the Plaintiff-Nelamegam and the First Defendant-Gopalakrishnan were coparceners and that in a Partition that took place on 17.2.1992 among them, the Suit properties were allotted to the share of the Appellant Plaintiff

It is the case of the Appellant/Plaintiff that the Partition alleged by him was not oral and it was by way of a written Partition Deed. It is also not the contention of the Appellant that the document did not purport to reduce the terms of an Oral Partition into writing. As such, the said document becomes inadmissible under Section 49 of the Registration Act, 1908, since it is compulsorily registered under Section 17 of the Registration Act, 1908 and admittedly, the same is an unregistered document.

Moreover, Nagarathinam Ammal was not a co-parcener along with her husband and his sons. The claim of the Appellant/Plaintiff that the Suit properties were purchased by the Joint Family for itself with its own funds in the name of Nagarathinam Ammal will tantamount to a plea of a purchase made benami in the name of Nagarathinam Ammal. Such a plea is not available by virtue of Section 4 of the Benami Transactions (Prohibition) Act, 1988. Needless to list the authorities which say that a purchase made in the name of the wife of a co-parcener is not exempted under Section 4 of the Benami Transactions (Prohibition) Act, 1988. Suppose the Appellant did take a plea that the purchase was made by Sundararajan Chettiar in the name of his wife, there may be some scope for contending that Nagarathinam Anmal did not get title to the properties, as Sundararajan Chettiar could have taken a plea that the purchase was not made for the benefit of his wife and hence, it was a Benami transaction made not punishable under Section 3 of the Benami Transactions (Prohibition) Act, 1988. Hence, the finding of the Trial Court, which was continued by the Lower Appellate Court that the Appellant/Plaintiff miserably failed to prove the character of the properties to be co-parcenery properties, cannot be said to be either erroneous or defective, much less, perverse. When it is found that the Suit properties were the separate properties of Nagarathinam Ammal, a Suit filed by the Appellant/Plaintiff against her for declaration his alleged title is bound to fail and the Courts below have held so without any mistake.

It is not the case of the Appellant/Plaintiff that though the properties happened to be the absolute properties of Nagarathinam Ammal, the Appellant Plaintiff set up an adverse possession with necessary animus and perfected title by having such an adverse possession for over a period of limitation, as per the Limitation Act, 1963. In fact the Suit came to be filed in the year 2001 and the alleged Partition took place in 1992 12 years period would not have elapsed even if it is assumed that from the date of alleged Partition the possession of the Plaintiff, if true, would amount to adverse possession. On the other hand, a number of documents have been produced on the side of the Defendants to prove the enjoyment by Nagarathinam Ammal and her exercising right as owner by executing a Settlement Deed in favour of the First Defendant and a Will, both on 17.11.2000. It is also obvious that based on the Settlement Deed, Patta came to be issued in the name of Gopalakrishnan - the First Defendant and kist came to be paid in his name, as evidenced by Exs B17 to B19. There are also documents produced in the form of Exs B7 to B13 that Nagarathinam Ammal had Patta in her name in respect of the Suit properties, paid kist in her name and was maintaining an account with Pandian Grama Bank She was also dealing with the properties by creating Mortgage (othi) in favour of a Third party by name Kannappan under Ex.B26. It is also obvious from Exs.B30 & B31 that Gopalakrishnan availed Agricultural loan from the Primary Agricultural Co-operative Bank.

All the above said aspects were taken into consideration by the Courts below to arrive at a conclusion that the Appellant/Plaintiff was also not having the possession of the Suit properties. Accordingly, both the Courts below concurrently held that the Appellant Plaintiff was not entitled to either the relief of declaration or the relief of Permanent Injunction. This Court does not find any defect or infirmity in the Judgments of the Courts below. There is no merit in the Second Appeal and no Substantial Question of Law is also proved to have arisen for determination in the Second Appeal.

For all the reasons stated above, the Second Appeal fails and the same is dismissed with costs. Consequently, connected Miscellaneous Petition is also dismissed.