R. Kandasamy vs Marammal and Others

P. Jyothimani, J.—The 2nd defendant in O.S.No. 68 of 1984 before the Sub Court, Gobichettipalayam is the appellant in this appeal suit.

The 1st and 2nd respondents herein had filed the above suit praying for partition of ''B'' Schedule immovable properties by carving out them from ''A'' Schedule properties and certain other movable properties also mentioned in the ''B'' Schedule and for allotment of 22/120th share apart from maintenance charges.

The 1st plaintiff is the wife of Late Eswaramoorthy and the 2nd plaintiff is their daughter. Easwaramoorthy died, on 25.1.1969. The 1st defendant Rama Goundar, who is the father of defendants 2 to 4 and the said Easwaramoorthy, also died on 26.11.1987, pending suit. The 16th, 12th and 18th defendants are the wife and daughters of Rama Goundar respectively. Apart from defendants 2 to 4 and 16 to 18, all other defendants are joint pattadars and they are not necessary for the purpose of deciding the issue.

According to the plaintiffs, the 1st defendant, Rama Gounder was originally living in Raya Goundan Pudur, Vadugapalayam Village, Avinashi Taluk enjoying his ancestral properties. The ancestral properties were sold by him on 21.6.1946 for himself and on behalf of his minor viz., defendants 2 to 4 and the deceased Eswaramoorthy for a sum of Rs. 1000/- and thereafter, he came and settled at Pattavarthi, Iyyampalayam in June 1946 and out of the nucleus he had purchased numerous properties with the joint efforts of the members of the joint family, viz. his sons including Eswaramoorthy, Therefore, the ''B'' schedule properties, which were purchased are the joint family properties and the 1st plaintiff''s husband Eswaramoorthy had 1/5th share in the said properties. There was no partition among defendants 1 to 4 and Easwaramoorthy. The 1st defendant being the Kartha of the family was looking after the plaintiffs till September 1978 and at the instigation of defendants 2 to 4, the plaintiffs were driven out of the joint family. Thus pleading, the plaintiffs have filed the suit for partition and for certain other reliefs including the claim for maintenance.

The 1st Defendant (since deceased) and defendants 2 to 4 have filed their written statements. Defendants 2 to 4 in their written statement would contend inter alia that there was no joint family. Even though the 1st defendant was living originally in Raya Goundan Pudur, he was not enjoying any ancestral properties. The properties in Vadugapalayam were purchased by the 1st defendant out of his own funds and. not from the ancestral nucleus. Easwaramoorthy, after his marriage, went away from the joint family along with the 1st plaintiff and he was never living in the joint family thereafter. After the death of Easwaramoorthy, the plaintiffs are living in the 1st plaintiff''s parents'' house. The properties mentioned in the schedules were never treated as joint family properties. It is also stated that the plaintiffs have originally filed a suit informs pauparis in O.P.No. 18 of 1982 and after enquiry the said O.P. was dismissed this Court also dismissed the revision filed against the said O.P. with a direction to pay Court Fee. Without pursuing the said by paying Court Fees, the plaintiffs have filed the present suit, which is not maintainable. It is also the case of the 2nd defendant that since the entire properties were the self acquired properties of Rama Goundar, he had executed a Will, dated 12.7.1978 bequeathing his entire properties in favour of his sons viz., D2 to D4. Contending so, the defendants have prayed for the dismissal of the suit.

On the above pleadings, the trial court has framed the following issues among other issues for consideration.

(i) Whether the suit properties were purchased out of the amount realised from sale of ancestral properties?

(ii) Whether the plaintiffs are entitled for partition.

Apart from the above issues, the trial Court also framed additional issues as follows:

Whether the suit is maintainable due to the reason that Court Fee fixed by the High Court was not paid in time?

Whether the suit is bad for mis joinder of parties?

Whether defendants 2 to 4 have become absolute owners of the suit properties based on the Will dated 12.7.1978 executed by the 1st defendant?

During the trial, the 1st plaintiff examined as P.W.1 apart from four other witnesses as P.Ws. 2 to 5 and 20 documents were marked. as Exs.A1 to A.20. On the side of the defendants, the 2nd defendant examined as D.W.1 apart from two other witnesses as D.W.2 & D.W.3 and 36 documents were marked as Exs. B1 to B.36.

The learned trial Judge on appreciation of evidence and also the documents has decided all the additional issues in favour of the plaintiffs. With regard to additional issue No. 1, the trial Court held that but for the non availability of the records before the Court, which was pending before the High Court, the plaintiffs were ready to pay the Court Fees within time. In respect of additional issue No. 2 relating to misjoinder of parties, it was decided against the defendants since no submission was made on the said issue, Regarding additional issue No. 3, viz., whether defendants 2 to 4 have obtained the suit properties as absolute owners based on the Will dated 12.7.1978 marked, as Ex.B4, the trial Court found that none of the attesting witnesses of the said Will has been examined and only the scribe has been examined, as D.W.3, who has not even chosen to state that the testator/1st defendant was in a sound state of mind at the time of execution of Ex.B4 and that the 1st defendant signed the Will in the presence of the witnesses and came to the conclusion that the said Will, Ex.B4 is not proved in the manner known to law and also the writing of the Will is not in the natural form. Thus, the trial Court has held that defendants 2 to 4 have not obtained the suit properties absolutely based on the Will executed by the 1st defendant dated 12.07.1978 marked as Ex.B4. Against the above said findings of the trail Court no appeal is filed on behalf of defendants 2 to 4 and the same also has not been raised during the course of the argument in this appeal.

While dealing with the right of plaintiffs to have share in the suit properties, the trial Court relying upon Ex.A3 sale deed 21.6.1946 under which the first Defendant for himself and on behalf of his sons viz., Defendants 2 to 4 and Easwaramoorthy had sold of the properties and the recitals therein viz., the common 1/3 share was subject matter of sale came to the conclusion that if the said properties are the self acquired properties of the 1st defendant, there no necessity for the 1st defendant to include his sons names, that it was from and out of the money received under the sale, the various other properties were purchased, that the suit properties are the joint family properties and in that view of the Matter, the plaintiffs were given their shares in the suit properties as claimed in the plaint. It was as against the judgment decree of the trial Court, the 2nd defendant has filed the above appeal suit.

Heard Mr. S. Subbaiah, learned Counsel for the appellant as well as Mr. M.V. Venkatseshan, learned Counsel for respondents 1 & 2, who are the plaintiffs in the suit. Both the counsel have also filed their elaborate written arguments. On perusal of the entire records, the following point arises for consideration in the appeal:

Whether the judgment of the trial Court in granting a preliminary decree for partition granting 22/120th share to the plaintiffs in the suit properties is valid and in accordance with law?

The learned Counsel appearing for the appellant would submit that though there are two schedules in the plaint viz., ''A'' & ''B'', schedule ''B'' consists of immovable properties and they form part of schedule ''A''. He would submit that the trial Court while construing that the property sold under Ex.A3 sale deed dated 21.6.1946 by the 1st. defendant for himself and on behalf of his Minor sons viz., defendants 2 to 4 and, Easwaramoorthy in favour of Patte Gounder for Rs. 1000/- and the manner in which the sale deed was executed itself shows that it a joint family property and therefore, the sale consideration received under the sale should be treated as the nucleus for the purchase of further properties by the first defendant, has failed to appreciate that Ex.A3 itself categorically recites that the said property was owned by the 1st defendant as its Absolute owner and there is nothing to infer from the said document that it was an ancestral property. Merely because the minor sons'' name were also included in the sale deed, it does not on the face of it mean that it constitutes a joint family property. For this proposition, he would rely upon the judgments of this Court reported in M.P.P. Jayagandhi Nadar and Company by partner, M.P.P. Jayagandhi Nadar Vs. Arunachalam Pillai and Another, and (Kokila v. Swathanthira ). It is also his submission that when a party comes to the Court with a plea that the property standing in the name of the manager of the joint family should be presumed to be a joint family property, it is for him to prove the same, by relying upon judgments of division benches of this Court in 2005 (1) LW 343 (R. Deivanai Ammal (Died) and Anr. v. G. Mennakshi Ammal and Ors. and 2005 (3) LW 627 (P.R. Kannaiyan (died) and 7 Ors. v. Ramasamy Mandiri S/o. Govinda Mandiri and 10 Ors.) He would also submit that though Ex.B3 which is a Deed of Exchange stands in the name of the 1st defendant, the Defendants denied the Panchayat which took place and the agreement entered on 24.11.1981 which as marked as Ex.A19 under which the deceased 1st defendant had agreed to give the 1st plaintiff an amount by way of compromise itself is not sufficient to prove the joint family status. He would also refer to Ex.B1 document dated 27.3.1968 standing in the name of Easwaramoorthy and one Rajendran and the same was sold by the said Rajendran along with the plaintiffs after the death of Easwaramoorthy on 27.5.1969 under Ex.A.20 and therefore, according to him, the parties were having their own individual properties. He also would submit that the properties which are the subject matter of Exs.A.33 and 34 were jointly standing in the name of D2 to D4 apart from Ex.A11 sale deed which is jointly in the name of D2, D3 and the wife of D3, Rajammal, who is not made as a party in the suit. The learned Counsel admitting that the Will Ex.B4 has not been proved in the manner known to law as per Section 68 of the Indian Evidence Act has categorically stated ultimately that even if the properties were the self acquired properties of the 1st defendant, plaintiffs can at the best be entitled for division of 1/6 in the ''B'' schedule properties and has specifically admitted that the decree of the trial Court could be modified as one for the undivided share of 1/6 in the schedule ''B'' properties and accordingly relief could be granted, The specific written argument submitted by the learned Counsel for the appellant in this regard are as follows:

Even taking it that the properties the separate properties of the deceased first defendant, the plaintiffs at the could only be treated as entitled to an undivided 1/6 share in the properties described in schedule B.

Accordingly, the decree of the Trail Court could be modified as one, for the undivided share of 1/6 in schedule B properties and granting the relief accordingly.

On the other hand, Mr. M.V. Venkataseshan learned Counsel for respondents 1 & 2, who are the contesting parties would also submit in the line of the submission made by the learned Counsel for the appellant ultimately stated that since Rama Gounder, the 1st first defendant who is the father of defendants 2 to 4 Easwaramoorthy and his wife Ramathal, the 16th defendant have died on 7.11.1987 and 20.7.1996 respectively, apart from Easwararmoorthy, his four sons and two daughters viz., D2 to D4 and Arukkani-D17 & Ponnammal-D18 are entitled for 1/6th share each and the plaintiffs, who claim under Easwaramoorthy also entitled for 1/6 share jointly in the ''B'' Schedule properties and ultimately submitted that the relief claimed by the plaintiffs in respect of quantum of the share may be modified as 1/6th share to the plaintiffs instead of 22/120th share in the following words:

During the pendency of the suit the 1st defendant Ramagounder died on 27.11.1987. His wife Ramathal and 2 daughters Arukkani and, Ponnammal were impleaded as defendants 16 to 18. After the decree of the suit the 16th defendant Mrs. Ramathal also died on 20.7.1996, So, as of now only the sons and daughters of the 1st defendant deceased Ramagounder are alive. Each of them are entitled 1/6th share in the joint family properties. So, the plaintiffs jointly entitled to 1/6th share in the Plaint B Schedule properties. Hence the relief claimed by the plaintiffs may be modified as 1/6th share considering the change of circumstance.

Even though the trial Court has extensively discussed with assigning reason that the suit properties are the joint family properties consisting of defendants 1 to 4, 17 & 18, apart from the plaintiffs and in view of the same, it has come to a conclusion that the plaintiffs are entitled to the share as stated above, it remains a fact on appreciation of Ex.A3 that even assuming if the property which was sold by the 1st defendant on 21.6.1946 was not a joint family property, there was no necessity for him to include the names of his sons. Further, as it is found by the Court below, if there had been no joint family property or nucleus, there was no necessity for a panchayat for payment of maintenance to the plaintiffs as seen from Ex.A.19 dated 24.11.1981, an agreement agreeing to pay an amount of compensation, to the plaintiffs. In fact the trail Court has appreciated various documents by considering each and one of them by assigning reasons to come to the conclusion that the plaintiffs have share in the suit properties. In view of the same, there is absolutely no difficulty to come to the conclusion that the reasons assigned by the learned trial Judge for granting a decree for partition in favour of the plaintiffs are not perverse or wrong, requiring interference by this Court.

In any event, as submitted by both the learned Counsel for the appellant as well as the respondents in their written arguments on behalf of the parties, it is now clear that after the death of the 1st defendant Rama Gounder and his wife, the 16th defendant, Ramathal and in the circumstances that the trial Court has correctly found that the Will stated to have been executed by the first defendant in favour of defendants 2 to 4 under Ex.B.4 dated 12.7.1978 was not proved, which has not been assailed by the defendants either by filing a cross appeal or otherwise, it is clear that the said Rama Gounder died intestate leaving the schedule mentioned properties to be inherited by all his legal heirs viz., defendants 2 to 4, 17 & 18 apart from the plaintiffs being the legal heirs of the deceased son Easwaramoorthy.

Considering the above said facts and as correctly submitted by the learned Counsel for the appellant and the respondents, the plaintiffs will be entitled for 1/6 share in the plaint ''B'' schedule properties. In view of the same, the judgment and decree of the trial Court are liable to be confirmed, however, with the following modification in respect of the quantum of share and direction to proceed along with the mense profits. Accordingly, the first appeal stands dismissed confirming the decree and judgment of the trial Court in O.S.No. 68 of 1984 on the file of the Sub Judge, Gobichettipalayam, however with a modification that the plaintiffs will be entitled for 1/6th share in the ''B'' Schedule properties instead of 22/120th share and with a direction to conduct separate enquiry in respect of the mense profits. Considering the facts and circumstances of the case, there will be no order as to costs.