Seethalakshmi and 5 others vs T. Sridhar and another

Govardhan, J.—This appeal is against the order passed by the Sub Judge, Salem dated 24.2.1989 in E.A. No. 999/1988 in E.P. No.

225/1986 in O.S. No. 1049/1978. The petitioners in their petition contend as follows: The first respondent has attached the property in the

Execution Petition and has brought it for sale alleging that the property is owned by the second respondent. But, the same was purchased by the

father of the second respondent and petitioners 2 to 5 and the husband of the first"" petitioner late S.A. Ramasami. On his death, all the petitioners

and the second respondent are entitled to 1/7th share each as per the Hindu Succession Act. The attachment of the entire property including the

6/7th share of the petitioners, is therefore, not proper and hence the petition to raise the attachment in respect of 6/7th share in the petition-

mentioned property.

The first respondent in his counter contends as follows: The property was proceeded against for the last eight years. No claim was made by the

petitioners. Attachment was made long ago. The petition is filed in collusion with the second respondent and it is therefore liable to be dismissed.,

The Additional Sub Judge, Salem who held an enquiry on this petition, has held that the petitioners have not established their title to the suit

property and they have come belatedly, and dismissed the petition. Against the said order, the petitioners have come forward with this appeal.

In this Court, the appellants have filed a petition to receive the copy of the sale deed in favour of the father of the second respondent as an

additional evidence contending that since the Subordinate Judge has dismissed the petition filed by them on the ground that the petitioners have not

established their title, they are filing this petition, The respondent has objected to the same by contending that the petitioners have not satisfied the

requirement of Order 41, Rule 27 of the CPC and they have been keeping quiet for all these days and therefore, the petition is liable to be

dismissed.

It is no doubt true that the petitioners have not given any explanation as to why they have not filed the title deed in respect of the property before

the Additional Sub Judge, Salem. Their contention in the Execution Petition is that the property which was attached and brought for sale, is the

property purchased by the father of the second respondent and therefore, the second respondent cannot claim absolute title to the said property

and the petitioners have also got 1/7th share each. An application under Order XXI, Rule 58 of the CPC has to be enquired as if it is a suit to

decide the claim of the petitioners. When the title of the second respondent has been challenged by the petitioners in the Execution proceedings,

the decree-holder should establish the title of the judgment-debtor, since the decree-holder has brought the property for sale contending that it is

the absolute property of the judgment-debtor. The decree holder has not done so. The petitioners have filed house-tax receipts under Exs.A-1 to

A-4 to show that the property belongs to them. The learned sub Judge has rejected these house tax receipts holding that they are no sufficient to

establish the title of the. plaintiffs. The property being house property, when an assessment has been shown in the name of a person in respect of

the said house property, it can be infected that the property belongs to the person in whose name the assessment stands. The Assessment Order

and the house-tax receipts cannot be rejected holding that they are not inefficient to establish title. Even if it is held that they do not establish the

title, it can be held that prima-facie case has been shown in respect of the title of the property in these house-tax receipts. But, the learned Sub

Judge has rejected the house-tax receipts. Therefore, it has become necessary for the petitioners to let in evidence in the appeal to establish their

title to the petition-mentioned property. In the above circumstances, it cannot be stated that the provisions of order 41 , Rule 27 of the CPC has

not been complied with by the petitioners to reject their request to treat the sale deed as an additional evidence. The sale deed filed in CM.P. No.

16512/1994 is marked as Ex. A-5. Therefore, the petitioners'' case that the first respondent has brought the property for sale holding that it is the

absolute property of the second respondent, and it is erroneous, since it was purchased in the name of the father of the second respondent and

petitioners 2 to 6 whose mother is the first petitioner gains weight. Under '' the Hindu Succession Act, when a Hindu dies intestate, the wife and

children are entitled to equal share in the property left by the deceased cannot be disputed. Therefore, the claim of the petitioners for 1/6th share

each is well-founded. The property has been brought for sale as if it is the absolute property of the second respondent. The first respondent who

has filed the counter, has not denied the allegation made by the petitioners in their petition specifically by stating that the property is not the

property purchased by the father of the second respondent. Under Order 8, Rule 5 of the Code of Civil Procedure, where an allegation of fact is

not denied specifically, it would amount to admitting the same impliedly. Therefore, the first respondent''s conduct in not denying the allegation of

the petitioners with regard to the title of the property, has to be taken as an implied admission of the same. Therefore, I am of opinion that the

attachment of the entire property and attempt of the second respondent to bring the same for sale cannot be sustained. In that view, I hold that the

order of the Sub-judge is liable to be set aside. In the result, the appeal is allowed setting aside the order of the learned Additional Sub Judge,

Salem. Attachment in respect of 6/7th share in the petition-mentioned property is raised. No costs. C.M.P. No 16512/1994 is allowed and the

sale deed is marked as Ex. A.5.