Ramaswamy Goundar vs Sellappan

The second defendant in O.S. No. 374 of 1972 on the file of the learned First Additional Subordinate Judge, Salem, is the appellant in the

second appeal. The respondent herein filed the suit against his father Kuppusamy Goundar as the first defendant, his father''s brother, the appellant

herein as the second defendant, one Murugesa Goundar, an alienee of Item No. 2 of the suit properties as the third defendant, one Marappa

Goundar, the co-owner of one of the items as the fourth defendant and one Muthu Pandaram, alienee of Item No. 5 as the fifth defendant. Pending

suit, the fifth defendant Muthu Pandaram died and his legal representatives were impleaded as defendants 6 to 11. The suit was for partition and

separate possession of the plaintiffs 1/4th share.

The averments in the plaint were as follows:

Defendants 1 and 2 were the sons of one Chellappa Goundar. The plaintiff, defendants 1 and 2 and Chellappa Goundar constituted a joint Hindu

family. The first defendant''s father married the plaintiffs mother Pavayee in 1959. Even while the plaintiff was in the womb, the first defendant ill-

treated Pavayee and drove her out of the house. The plaintiff and his mother Pavayee took shelter in her parents'' house and the plaintiff was born

in 1961. Defendants 1 and 2 and her father Cheltappa Goundar colluded together to defeat the plaintiffs rights. There was no partition in the family.

The first defendant fraudulently created a sham and nominal sale deed in favour of the second defendant purporting to sell his 1/3rd share in the suit

properties to the second defendant. The document was a sham and nominal one not supported by necessity nor was it for the benefit of the family.

The mother Pavayee filed a suit against defendants 1 and 2 for maintenance. She also questioned the alienations made by the first defendant in

favour of the second defendant. Defendants 1 and 2 settled-Pavayee''s claim. The mother did not take care of the minor plaintiff. He was brought

up by his maternal uncle. Chellappa Goundar and defendants 1 and 2 obtained a release deed from Pavayee by paying her Rs. 800 in full quit of

maintenance claim. It would appear that defendants 1 and 2 obtained a release deed in respect of minor plaintiffs share from the maternal

grandfather, viz. Kandasamy Goundar. This release deed was not binding on the plaintiff. It had not been executed by the lawful guardian of the

minor plaintiff. The second defendant also brought about a Settlement Deed dated 21.9.1967 by Chellappa Goundar in respect of his undivided

share in favour of the second defendant. It was not valid in law as there could be no gift of undivided share and it was also not for the legal

necessity or for the benefit of the family. Chellappa Goundar died in 1970 and on his death, the first defendant and the plaintiff became entitled to

1/2 share in all the suit properties belonging to the family and the plaintiffs share would be 1/4. The second defendant was getting annual income of

Rs. 6000 from the suit lands. The plaintiff was entitled to his claim of Rs. 1500 per year. He was entitled to mesne profits at the same rate for three

years immediately preceding the suit and for mesne profits for the future days till realisation. The plaintiff caused a notice to be issued when he

came to know that the second defendant was trying to sell the property to the third defendant. There was no reply to the notice from the

defendants. The fourth defendant had been impleaded as he had got separate share in the suit survey numbers. The fifth defendant had purchased a

portion of the suit property during the pendency of the suit. Thus the suit came to be filed for setting aside the release deed, for partition and

separate possession of the plaintiffs 1/4th share and mesne profits at the rate of Rs. 1500 per annum for three years immediately preceding the suit

and also for future profits.

The first and the fourth defendants remained absent and they, were set ex parte. The second defendant contested the suit and his defence was

as follows:

The first defendant had sold his share in favour of the second defendant. The sale deed executed by him was binding on the plaintiff as it was

executed for legal necessity and for the benefit of the family. It was false to say that the first defendant drove away Pavayee, the plaintiff''s mother.

She was very much living with the first defendant. The suit by Pavayee was subsequent to the alienation by the first defendant to the second

defendant. The maintenance claim was compromised due to the intervention of elders and it had been compromised by payment of Rs. 800 to

Pavayee. The maternal grandfather received a sum of Rs. 2,000 as consideration from the second defendant and had executed a release deed in

respect of the share of the then minor plaintiff and after all these, the plaintiff was not entitled to any share in the suit property. The father of the

second defendant Chellappa Goundar had executed a gift of his 1/3rd share in favour of the second defendant. The second defendant had thus

become entitled to the entirety of the family properties. The settlement deed was in respect of the divided 1/3rd share of Chellappa Goundar and

therefore valid in law. The third defendant had purchased only a portion of the suit properties from the second defendant for valid consideration.

The second defendant''s decree debts had been discharged by the third defendant. He had also effected improvements over the properties by

spending huge amount. He was entitled to the lands purchased from the second defendant for valid consideration. The income from the properties

would not be more than Rs. 1,000 per year. The mesne profits claimed was excessive. The suit was liable to be dismissed.

The third and the fifth defendants raised similar contentions.

On the above pleadings, the learned Subordinate Judge framed the necessary issues as to whether the sale deed dated 31-3-1961 by the first

defendant in favour of the second defendant was valid and binding upon the plaintiff, whether the settlement deed executed by the father Chellappa

Goundar in favour of the second defendant was true and valid, whether the release deed executed by the maternal grandfather of the plaintiff in

favour of the second defendant was valid and binding upon the plaintiff and whether the plaintiff was entitled to any share?

On the side of the plaintiff, he examined himself as P.W.I and his maternal uncle Kulandaivelu as P.W.2, who filed the suit as next friend and

guardian of the minor plaintiff. Pending suit the plaintiff attained majority. The defendants examined the second defendant as D.W.I and one

Ramasamy, an attestor to Ex. B-1 sale deed as D.W.2. On the side of the plaintiff five documents were produced and they were marked as

Exs.A-1 to A-5 and the defendants produced Exs.B-1 to B-8 documents.

On a consideration of the materials on record, the learned Subordinate Judge held that the sale deed by the first defendant in favour of the

second defendant, copy of which had been marked as Ex. B-1, was true and valid and binding upon the minor plaintiff, that the settlement deed

executed by Chellappa Goundar under the original of Ex. A-2 in favour of the second defendant in respect of his undivided 1/3rd share was not

valid and not binding upon the minor''s share and that the release deed, copy of which had been marked as Ex. B-5 executed by the maternal

grandfather of the plaintiff, was not binding upon him. So holding, by judgment and decree dated 10.8.1982, the learned Subordinate Judge

granted a decree for partition and separate possession of the plaintiffs 1/12th share.

The second defendant filed appeal in A.S. No. 38 of 1983. The plaintiff, who claimed 1/4th share in all the suit properties, filed cross

objections. The learned Second Additional District Judge, Salem, held that the sale deed, viz. the original of Ex. B-1 executed by the first

defendant bearing date 31.3.1961 in favour of the second defendant, was not valid and binding upon the plaintiffs share, that the settlement deed

under the original of Ex. A-2 by Chellappa Goundar in favour of the second defendant was not valid in law and that the release deed under the

original of Ex. B-5 dated 25.8.1962 executed by the maternal grandfather in favour of the second defendant was not valid and binding upon the

plaintiff. So holding, the learned Second Additional District Judge dismissed the appeal filed by the second defendant and allowed the cross

objections filed by the plaintiff.

It is as against this, the present second appeal has been filed. At the time of admission, the following substantial questions of law were raised for

decision in the second appeal:

(1) Whether the conclusion of the lower Appellate Court that the settlement under Ex. A-2 and the sale under Ex. B-1 are not binding on the

respondent, is correct in law? and

(2) Whether the direction regarding mesne profits given by the Court below in its decree is sustainable?

Mr. S.P. Subramaniam, learned Counsel for the appellant, made the following submissions:

Ex. B-1, the original of the sale deed executed by the first defendant in favour of the second defendant, ought to have been held as a true and valid

document. That had been executed for discharging family debts and for purchase of some other property and the lower Appellate Court was in

error in holding that the original of Ex. B-1 was not valid. There were 3 or 4 debts mentioned and out of Rs. 5,000 consideration, Rs. 1,700 went

towards the satisfaction of the debts discharged already by the second defendant. The recital in the document clearly proved the discharge of the

debts. The learned District Judge was wrong in holding that the second defendant had not proved the discharge of debts. There was also no plea in

the plaint regarding the nature of the debts. The plea was that the document was sham and nominal. If Ex. B-1 was found to be true, there was no

question of the first defendant getting any share in the property, in which event the plaintiff as the son of the first defendant, could not question the

original of Ex. A-2 settlement by Chellappa Goundar in favour of the second defendant. In the maintenance suit filed by the mother, only after it

was dismissed for default, there was a compromise effected and subsequently, the maternal grandfather executed the original of Ex. B-5 after

receiving Rs. 2,000 in full quit of the claim of the then minor plaintiff and the learned District Judge was in error in holding against the second

defendant.

Mr.S. Sethurathinam, learned senior counsel for Mr. K. Kuppusamy appearing for the contesting first respondent, referred to Ex. B-4

registered release deed executed by Pavayee Ammal in favour of defendants 1 and 2, where there was definite reference to the wayward life being

led by the first defendant and this had been taken note of by the lower Appellate Court in holding that the original of Ex. B-1 was not a true and

valid document.

The whole question will depend on the validity of the original of Ex. B-1 sale deed by the first defendant in favour of the second defendant. If it

is found to be sham and nominal, then the decision by the lower Appellate Court will have to be confirmed.

Admittedly, the suit properties belonged to the joint family consisting of Chellappa Gounder, the first and the second defendants. That the

properties belonged to the joint family was practically conceded on the side of the second defendant. The Courts below had proceeded on the

basis that the suit properties belonged to the joint family of Chellappa Goundar and his two sons. Ex. B-1 is the registration copy of the sale deed

executed by the first defendant in favour of the second defendant in respect of the undivided 1/3rd share. The original of Ex. B-1 came into

existence on 31.1.1961. It is not very much in dispute that Pavayee married the first defendant in 1959 and at the time the original of Ex. B-1 was

executed, the plaintiff was in his mother''s womb. A faint attempt was made disputing the very marriage of Pavayee. However, having regard to the

fact that after the filing of the maintenance suit by Pavayee, there was a compromise entered into between Pavayee on the one hand and

defendants 1 and 2 on the other, wherein her status as the first defendant''s wife was conceded and it was also specifically mentioned that the first

defendant was leading a wayward life. The conclusion would be inescapable that the original of Ex. B-1 was not a true and valid document. The

mere fact that in the original of Ex. B-1 it is mentioned that the second defendant had already discharged debts to the tune of Rs. 1,700 without

actual proof of such discharge, would not take him anywhere. The lower Appellate Court has observed that the alienation by the first defendant

was not to a third party-stranger and at the time the original of Ex. B-1 was executed, the family was joint. There was no division and that the sale

was necessitated for the family to meet certain outstanding debts, which were incurred for the benefit of the family. There was mention of

antecedent debts in Ex. B-1. When the original of Ex. B-1 was executed the first defendant was not the kartha or the Manager of the family. The

father Chellappa Goundar was very much there. He died only in 1970 or 1972. It was nobody''s case that the management of the family was in the

hands of the first defendant to enable him to alienate his alleged undivided share. Ex. B-2 certified copy of the plaint in the maintenance suit by

Pavayee clearly averred that the marriage between Pavayee and the first defendant took place in 1959, that after the plaintiff was conceived, she

was driven out by the first defendant. The plaintiff should have been born before 1962. She attacked the sale deed in the suit that it had been

fraudulently brought into existence by defendants 1 and 2 in collusion to deprive her of her right to maintenance. In Ex. B-3 certified copy of the

written statement filed by the second defendant, he had gone to the extent of denying the marriage between Pavayee and the first defendant and it

was contended that nobody had any right over the undivided share of the first defendant. However, the second defendant and the first defendant

gave a goby to this stand as rightly pointed out by the learned District Judge by entering into a compromise and getting a release from Pavayee

after paying her Rs. 800. The compromise clearly mentioned that Pavayee was the legally wedded wife of the first defendant, that there was lack

of harmony between the two and recognising her right to maintenance out of joint family properties, particularly in respect of her husband''s share,

the matter was settled between the parties by obtaining release deed. The release deed did not mention anything about the binding nature of the

sale deed executed by the first defendant under, the original of Ex. B-1. The contents of Ex. B-4 release deed would amply show that the original

of Ex. B-1 could not have been for any legal necessity or for binding purposes. No doubt, the learned Counsel for the appellant contended that

there was no plea on this for the plaintiff. I do not think that anything more than what had been stated with regard to the original of Ex. B-1 was

necessary. At the time the original of Ex. B-1 was executed, the plaintiff had already been conceived. This aspect was not seriously challenged by

the learned counsel for the appellant. The learned District Judge was not far wrong in observing that when Ex. B-4 release deed was obtained by

paying Rs. 800 by the second defendant, he had acknowledged the fact that the original of Ex. B-1 was not for any necessity or benefit of the

family. When the original, of Ex. B-1 had been specifically attacked in the suit filed by Pavayee, the written statement of the second defendant in

the said suit did not challenge the said allegation. The second defendant did not contend that the original of Ex. B-1 had been executed by the first

defendant only for discharge of antecedent debts and also for the purpose of purchase of the property.

I have no hesitation in holding that the original of Ex. B-1 was a sham and nominal document, that the recitals were fictitious and no rights

flowed under the document in favour of the second defendant. Only if the original of Ex. B-1 is accepted, then the question would arise as to

whether the release by Chellappa Goundar in favour of the second defendant under the original of Ex. B-5 could be challenged by the plaintiff. It is

settled law that there could be no gift of undivided share by a coparcener.

So far as the release by the plaintiffs maternal grandfather under the original of Ex. B-5 is concerned, it is needless to say that it was totally

void. The father and the mother of the plaintiff were very much there at the time this was got from the maternal grandfather. He had no legal

authority to enter into any arrangement on behalf of the minor plaintiff when his parents were there. The second defendant attempted to prove that

he had discharged the debts mentioned in the original of Ex. B-1 by stating that the discharged promissory note had been produced in the earlier

suit. I fail to see as to why those discharge documents were at all necessary for being filed in the earlier suit. Rightly the lower Appellate Court

rejected the second defendant''s case in this regard. Under the original of Ex. B-1 the entire share of the first defendant had been alienated for Rs.

5,000, out of which only Rs,1700.6.00 was purported to have been spent for discharging the debts. It was argued by the learned counsel that the

sale under the original of Ex. B-1 was not the undivided share, but a specific 1/3rd share and that severance of the joint family status had been

affected by reason of the execution of the original of Ex. B-1 and therefore, there was cessation of joint family. This cannot at all be accepted. The

legal position is well established on the point. To bring the severance of the joint family status, the coparcener must express his intention to sever

the joint status in unequivocal words to the other coparceners and just because one coparcener has chosen to execute a sale conveying his then

existing share to a third party, it would not mean that he brought about a division in status. The coparcener continued to remain joint along with

other coparceners. If at all the alienation made by the first defendant would be a valid one, to the extent of his share.

It has to be noticed that the alienation by the second defendant and Chellappa Goundar in favour of the fifth defendant in respect of Item 5, the

trial Court dismissed the suit and the same was confirmed by the lower Appellate Court. There was also no challenge in respect of Item 5 by the

plaintiff. As regards mesne profits, the lower Appellate Court has found that the plaintiff is entitled to mesne profits prior to the suit and for the

subsequent years till realisation and for the same they have to work out in the final decree proceedings.

On an overall consideration, I do not find any warrant for interference in the conclusion reached by the lower Appellate Court. Consequently, I

answer both the substantial questions of law against the appellant in the second appeal. The Second appeal fails and the same is dismissed, be no

order as to costs.