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Judgment
229 paragraphs · 5,032 wordsA. Selvam, J.—Challenge in these Second Appeal as well as Cross Objection is to the Judgment and decree dated 23.04.2009 passed in
Appeal Suit No. 36 of 2008 by the Additional District Court/Fast Track Court, Dindigul, wherein the Judgment and decree dated 15.07.2008
passed in Original Suit No. 95 of 2005 by the Principal Sub Court, Dindigul are modified. The respondents in Second Appeal No. 90 of 2010 and
Cross Objectors in Cross Objection No. 23 of 2010 as plaintiffs have instituted Original Suit No. 95 of 2005 on the file of the trial Court for the
reliefs of partition and separate possession of their half share in the suit properties wherein, the appellants have been arrayed as defendants.
The contraction of the averments of the plaint are that one Thirumalu Naidu and his wife Gnanammal have been blessed with a son by name
Venkidasamy Naidu and daughter by name Narasammal. The said Venkidasamy Naidu has passed away on 05.02.2005 leaving behind him his
two sons namely Thirumalaisamy (first plaintiff) and Narasimma Naidu (first defendant). The plaintiffs 2 to 4 are the children of first plaintiff and the
defendants 2 to 4 are the children of the first defendant. The suit items 1 and 2 are the ancestral properties of Venkidasamy Naidu. The suit third
item has been purchased by him from his sister by name Narasammal by virtue of the sale deed dated 30.11.1968. On the same day, the same has
been mortgaged in favour of one Gurusamy Naidu. The suit third item is a joint family property. The suit forth item has been purchased by
Subbammal who is the wife of Venkidasamy Naidu under a registered sale deed dated 30.08.1967. The said Subbammal has pre-deceased her
husband Venkidasamy Naidu and the said Venkidasamy Naidu has passed away on 05.02.2005. Therefore, in the suit properties, the plaintiffs are
jointly having half share and the remaining half share belongs to the defendants. Since the defendants have acted against the interest of the plaintiffs,
a legal notice has been given. After receipt of the same, the defendants 2 to 4 have given a reply notice dated 18.03.2005, wherein it has been
falsely stated that the suit third item is the absolute and separate property of Venkidasamy Naidu and he voluntarily executed a will dated
02.02.2005 in favour of the defendants 2 to 4. The said Venkidasamy Naidu has suffered from paralytic attack for the past five years and he has
not executed the alleged will in a sound disposing state of mind. The will dated 02.02.2005 has been concocted by the defendants 2 to 4. Under
the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint.
In the written statement filed on the side of the defendants it is averred that the relationship mentioned in the plaint is correct. But it is false to say
that the suit items 2 and 3 are joint family properties. The first defendant has purchased vacant site of the suit second item by virtue of the sale deed
dated 19.04.1983 by using his separate funds and he put up construction and therefore, the suit second item is his separate property. The suit third
item is the absolute and separate property of Venkidasamy Naidu and he voluntarily executed the will dated 02.02.2005 in favour of the
defendants 2 to 4. It is false to aver that the said will is nothing but concoction. In the suit third item, the said Venkidasamy Naidu has made some
improvements. The first plaintiff and first defendant have not contributed anything towards improvements. There is no merit in the Suit and the same
deserves to be dismissed.
In the reply statement filed on the side of the plaintiffs it is averred that for the sake of convenient enjoyment, both the plaintiffs and defendants
have been enjoying the suit property separately and no partition by metes and bounds has taken place and therefore, the Suit may be decreed as
prayed for.
In the additional written statement filed on the side of the defendants it is averred that the averments made in the reply statement are totally false
and further, the said averments cannot be introduced by way of filing reply statement. There is no merit in the Suit and the same deserves to be
dismissed.
On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and
documentary evidence has decreed the Suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants as appellants
have preferred Appeal Suit No. 36 of 2008 on the file of the first appellate Court.
The first appellate Court after hearing both sides and upon reappraising the evidence available on record has confirmed the preliminary decree
granted by the trial Court in respect of the suit items 1, 2 and 4 and modified the preliminary decree passed in respect of suit item 3 to the extent
that the plaintiffs, in aggregation are entitled to get only 1/3 share. Against the Judgment and decree passed by the first appellate Court, the present
Second Appeal as well as Cross Objection have been preferred by the defendants and plaintiffs respectively.
At the time of admitting the present Second Appeal the following substantial questions of law have been settled for consideration:
(i) whether the lower appellate Court is justified in subjecting the third item of property for partition after having accepted the will executed by the
father of the parties?
(ii) Whether the Courts below are right in decreeing the suit for partition in respect of item Nos. 1, 2 and 4 when the plaintiff has stated in the reply
statement that properties were already partitioned?
(iii) Whether the Courts below are right in holding that item No. 2 is also available for partition when the same was purchased by the first
defendant?
It is an admitted fact that one Thirumalu Naidu and Gnanammal have been blessed with two children namely Venkidasamy Naidu and
Narasammal. The wife of Venkidasamy Naidu by name Subbammal has pre-deceased him. The said Venkidasamy Naidu has passed away on
05.02.2005 leaving behind him his two sons namely Thirumalai Samy (first plaintiff) and Narasimma Naidu (first defendant). The remaining
plaintiffs are the children of the first plaintiff and the remaining defendants are the children of the first defendant. It is also equally an admitted fact
that the suit third item has been purchased in the name of Venkidasamy Naidu and suit fourth item has been purchased in the name of Subbammal.
The suit second item has been purchased in the name of the first defendant.
In the plaint it has been specifically averred to the effect that the suit items 1 and 2 are ancestral properties and the suit third item has been
purchased by Venkidasamy Naidu and the same has been treated as a joint family property and since the suit fourth item has been purchased in the
name of Subbammal who is none other than the mother of the first plaintiff and first defendant and she passed away, both of them are entitled to
half share. The defendants have failed to accede the demand of partition made by the plaintiffs and therefore, the present Suit has been instituted
for the reliefs sought for therein.
In the written statement filed on the side of the defendants it is averred that the suit second item is the separate property of the first defendant
and the suit third item is equally a separate property of Venkidasamy Naidu and he voluntarily executed a will in favour of the defendants 2 to 4 on
02.02.2005 and since he passed away, the will dated 02.02.2005 has come into effect and therefore, the defendants 2 to 4 have become absolute
owner of the suit third item and since the suit second item as well as third item are the absolute properties of the first defendant and remaining
defendants respectively, the plaintiffs are not entitled to get the relief of partition.
The trial Court has granted a preliminary decree in favour of the plaintiffs in toto. But the first appellate Court has confirmed the preliminary
decree passed by the trial Court in respect of suit items 1, 2 and 4 and modified the preliminary decree passed by the trial Court to the extent that
the plaintiffs are entitled to get only 1/3 share therein.
On the basis of the rival pleadings, the following aspects have become emerged, apart from the substantial questions of law settled in the
present Second Appeal.
(a) Whether the suit second and third items are the joint family properties even though the same have been purchased in the names of first
defendant and Venkidasamy Naidu?
(b) Whether the will dated 02.02.2005 has been voluntarily and also in a sound disposing state of mind, has been executed by Venkidasamy
Naidu in favour of the defendants 2 to 4?
As pointed out earlier, there is no dispute with regard to character of suit items 1 and 4 amongst the plaintiffs as well as defendants and
therefore, both the plaintiffs and defendants are having equal shares in suit items 1 and 4.
The bone of contention in the present proceedings is the suit items 2 and 3. Out of suit items 2 and 3, the Court has to first analyse as to
whether the suit third item has been purchased in the name of Venkidasamy Naidu who is none other than the father of the first plaintiff and first
defendant for the benefit of erstwhile Hindu joint family.
The learned counsel appearing for the appellants/defendants has contended with great vehemence to the effect that the said Venkidasamy
Naidu is the father of the first plaintiff and first defendant and out of his self earnings, he purchased suit third item by virtue of the sale deed dated
30.11.1968 and even though he has acted as Kartha of the erstwhile Hindu joint family, he can very well acquire property in his name by using his
separate funds and the Courts below have erroneously found that the suit third item is a joint family property and therefore, the concurrent
Judgments and decrees passed by the Courts below with regard to character of the suit third item are liable to be set aside.
In order to repudiate the contention put forth on the side of the appellants/defendants with regard to suit third item, the learned counsel
appearing for the respondents/defendants/cross objectors has contended that the suit third item has been purchased by virtue of the sale deed
dated 30.11.1968 in the name of Venkidasamy Naidu. On the same day, the said Venkidasamy Naidu and his two sons namely the first plaintiff
and first defendant have jointly mortgaged the same in favour of one Gurusamy Naidu and if really the said Venkidasamy Naidy has purchased the
suit third item separately, his sons viz., the first plaintiff and first defendants need not join in the mortgage deed as co-mortgagors and the Courts
below after considering the existence of mortgage deed dated 30.11.1968 on the date of purchase, have rightly and also uniformly found that the
suit third item is a joint family property and therefore, the concurrent findings given by the Courts below with regard to that aspect cannot be
interfered with.
The learned counsel appearing for the appellants/plaintiffs has drawn the attention of the Court to the decision reported in AIR 2003 3800
(SC) wherein, the Hon''ble Apex Court has held that ""property cannot be presumed to be joint family property merely because of existence of a
joint family - burden to prove the property to be joint lies on the person who asserts so - But if he proves that the family possessed sufficient
nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint and onus would shift on
the person claiming to be self-acquired property.
The learned counsel appearing for the respondents/defendants/cross objectors has drawn the attention of the Court to the decision reported in
Sankaranarayanan and Another Vs. The Official Receiver, Tirunelveli and Others, wherein this Court has held that ""the property acquired by
Kartha - onus on Kartha to prove that property was acquired by separate funds.
From the cumulative reading of the said decisions, it is made clear that if a member of Hindu Joint Family proves that there is sufficient joint
family nucleus, from and out of which, the property in question could have been acquired, the burden shifts to the member of the family setting up
claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family nucleus.
With the above said legal backdrops, the Court has to analyse as to whether the suit third item has been purchased in the name of
Venkidasamy Naidu for the benefit of the erstwhile Hindu Joint family consisted of Venkidasamy Naidu and his two sons namely, the first plaintiff
and first defendant herein.
The sale deed which stands in the name of Venkidasamy Naidu in respect of suit third item has been marked as Ex. A3. The mortgage deed
alleged to have been executed by Venkidasamy Naidu and his sons has been marked as Ex. A4. Both Exs. A3 and A4 have come into existence
on 30.11.1968. The learned counsel appearing for the respondents/plaintiffs /cross objectors has made much reliance upon the recitals mentioned
in Ex. A4. In Ex. A4 the first plaintiff has been shown as major and first defendant has been shown minor, represented by the said Venkidasamy
Naidu. Further, in Ex. A4, it has been clearly mentioned that only for the purpose of purchasing the property mentioned in Ex. A3, the mortgagors
have received a sum of Rs. 7,500/- from the mortgagee. If really the sale under Ex. A3 is a separate transaction of Venkidasamy Naidu, his sons
need not be shown as co-mortgagors in Ex. A4 and that too on the date of purchase under Ex. A3. Since both Exs. A3 and A4 have come into
existence on the same day, that is., on 30.11.1968 and since in Ex. A4, the sons of Venkidasamy Naidu have been shown as co-mortgagors, the
Court can very well draw a presumption to the effect that the suit third item has been purchased for the benefit of erstwhile Hindu Joint family
consisted of the said Venkidasamy Naidu and his sons namely, the first plaintiff and first defendant.
It has already been pointed out that if any property acquired in the name of Kartha, initial burden lies upon him to prove that the property in
question has been acquired by utilising his separate funds. In the instant case, such facts have not been established and further, the recitals found in
Ex. A4 are clearly strengthened the contention put forth on the side of the respondents/plaintiffs/cross objectors to the effect that the suit third item
is a joint family property. The Courts below after having elaborate discussion, have rightly decided the character of the suit third item to the effect
that the same is nothing but a joint family property. Under the said circumstances, the argument put forth on the side of the appellants/defendants
with regard to the suit third item is sans merit, whereas, the contention put forth on the side of the respondents/plaintiffs with regard to the suit third
item is really having acceptable force.
Now the Court has to analyse as to whether the suit second item is a joint family property or separate property of the first defendant. In the
plaint, it has been simply stated that the suit items 1 and 2 are ancestral properties. But the fact is otherwise to the effect that the vacant site of the
suit second item has been purchased in the name of first defendant under a registered sale deed dated 19.04.1983 and the same has been marked
as Ex. B2.
The consistent stand taken on the side of the defendants is that the vacant site of the suit second item has been purchased in the name of first
defendant and out of his separate earnings, he put up a house and therefore, the same is nothing but his self-acquired property.
It is a pristine and also an archaic principle of law that a person claiming that a certain property belongs to the joint family - must prove initially
that the joint family has had sufficient nucleus, out of which, such later acquisition could have been made. Then, the burden shifts to the member of
the joint family setting up claim that it is his personal property to establish that the said property has been acquired without any assistance from joint
family nucleus.
The learned counsel appearing for the respondents/plaintiffs/cross objectors has mainly relied upon the admission given by the first defendant
who has been examined as DW1. During the course of cross examination, he would say that the suit items 1 and 2 are ancestral properties. In fact,
in the written statement, it has been specifically pleaded that the vacant site of the suit second item has been purchased in the name of the first
defendant under a registered sale deed dated 19.04.1983 out of his separate funds and subsequently he put up a house by way of spending his
own money. Even in the chief examination, it has been specifically stated to that effect.
As rightly pointed out on the side of the respondents/plaintiffs/cross objectors, the first defendant during the course of cross examination, has
admitted to the effect that the suit first and second items are ancestral properties. It is a settled principle of law that parties to a proceeding may
utter lie. But documents would not do the same. In the instant case, the sale deed which stands in the name of first defendant in respect of the suit
second item, as stated earlier, has been marked as Ex. B2. The consistent stand taken on the side of the defendants is that the suit second item is
the separate property of the first defendant and he purchased the same out of his own earnings. At this juncture, the Court has to look into the
evidence given by the first plaintiff who has been examined as PW1 and his specific evidence during the course of cross examination is that the first
defendant has been doing milk business and thereby earned Rs. 10,000/- per month. It has already been pointed out that the suit third item is a
joint family property and it measures 5 acre 53 cents. The suit first item is nothing but a house property. Even though the suit third item is
admeasuring 5 acre 53 cents, on the side of the respondents /plaintiffs/cross objectors, sufficient evidence is lacking to the effect that the erstwhile
Hindu Joint Family has had derived sufficient nucleus so as to purchase the suit second item in the name of the first defendant and admittedly the
first defendant is a junior member of the erstwhile Hindu joint family. Further on the side of the defendants it has been sufficiently established that
the first defendant has purchased the vacant site of the suit second item by virtue of Ex. B2 by way of utilising his separate funds. The candid
admission made by the first plaintiff is that the first defendant has been earning Rs. 10,000/- per mensem. Therefore, it is quite clear that the
defendants have clinchingly established that the suit second item is the separate property of the first defendant. The Courts below have failed to
look into the consistent stand taken on the side of the defendants with regard to character of the suit second item and also the clear admission
made by the first plaintiff (PW1). In fact, the Courts below have erroneously come to the conclusion on the basis of erroneous admission given by
the first defendant (DW1) during the course of cross examination to the effect that the suit items 1 and 2 are ancestral properties. Therefore,
viewing from any angle, the concurrent findings given by the Courts below with regard to suit second item are not factually and legally sustainable.
Under the said circumstances, the contention put forth on the side of the appellants/defendants with regard to suit second item can easily be
accepted.
In the written statement it has been stated to the effect that the suit third item is the separate property of Venkidasamy Naidu and out of his
own volition coupled with sound disposing state of mind, he has executed the will dated 02.02.2005 in favour of the defendants 2 to 4 and
therefore, the defendants 2 to 4 have become absolute owner of the suit third item.
On the side of the respondents/ plaintiffs/cross objectors it has been clearly stated that the will dated 02.02.2005 is nothing but concoction and
the alleged executant of the will has attained 93 years old and suffered from paralytic attack and he has not possessed of sound disposing state of
mind.
Since on the side of the respondents /plaintiffs/cross objectors it has been clearly contended to the effect that the will dated 02.02.2005 alleged
to have executed by Venkidasamy Naidu is nothing but concoction and since he has not possessed of sound disposing state of mind, the entire
burden lies upon the defendants to prove that the will dated 02.02.2005 has been duly executed by Venkidasamy Naidu in a sound disposing state
of mind.
The will dated 02.02.2005 has been marked as Ex. B18. One of the attesting witnesses by name Ponniah has been examined as PW3 and the
scribe by name Chidambaram has been examined as PW4. Both of them have stated in their evidence about the due execution as well as
attestation of Ex. B18.
At this juncture, the learned counsel appearing for the respondents/plaintiffs/cross objector has contended that in the plaint it has been clearly
stated that the executant of the alleged will has attained 93 years old and also suffered from paralytic attack and the defendants have not
established that the executant of the will has possessed of sound disposing state of mind and further, the will in question has come into existence on
02.02.2005 and he passed away on 05.02.2005. Under the factual circumstances, the Court can very well come to a conclusion that Ex. B18 is
nothing but a concocted document and the first appellate Court without considering the senility of the executant of Ex. B18 and also the date of
execution of Ex. B18 as well as date of death of the executant, has erroneously found that Ex. B18 has been executed by the said Venkidasamy
Naidu and the same is valid to an extent of his 1/3 share and therefore, the finding given by the first appellate Court with regard to Ex. B18 is liable
to be set aside.
The learned counsel appearing for the appellants/defendants has contended that since the suit third item is an absolute property of
Venkidasamy Naidu, he voluntarily executed Ex. B18 in favour of the defendants 2 to 4 and he passed away on 05.02.2005 and therefore, the
same has come into existence. But the first appellate court has erroneously found that the suit third item is a joint family property and therefore, Ex.
B18 is valid to an extent of 1/3 share. Under the said circumstances, the finding given by the first appellate Court with regard to character of the
suit third item is liable to be set aside.
It has already been pointed out that the suit third item has been purchased for the benefit of erstwhile Hindu joint family and therefore, the same
can be construed as a joint family property. At this juncture, the point to be decided is as to whether Ex. B18 has been executed by the executant
Venkidasamy Naidu in a sound disposing state of mind.
In Kalyan Singh Vs. Smt. Chhoti and Others, the Honourable Apex Court has held that ""the Court can independently decide the genuineness
of the will. Further, suspicious circumstances would be decided by the Court on the basis of available evidence.
It is an admitted fact that Ex. B18 has come into existence on 02.02.2005 and it is also equally an admitted fact that the executant viz.,
Venkidasamy Naidu has passed away on 05.02.2005. In the pliant it has been specifically stated that the said Venkidasamy Naidu has attained 93
years old and suffered from paralytic attack and he has not executed the will in question and the same is nothing but concoction. Even though it has
been specifically averred in the plaint with regard to aforesaid aspect, no specific denial has been made in the written statement with regard to age
of the said Vengasamy Naidu. The learned counsel appearing for the appellants/defendants has contended that in Ex. B18 it has been stated that
the executant has attained 80 years of age.
The consistent stand taken on the side of the respondents/plaintiffs/cross objectors is that the executant of Ex. B18 viz., Venkidasamy Naidu
has not possessed of sound disposing state of mind and in order to disprove the said aspect, no acceptable evidence has been forthcoming on the
side of the appellants/defendants, except ipse dixit of DWs. 3 and 4. At this juncture, the Court has to born in mind with regard to date of death of
the said Venkidasamy Naidu. It is an admitted fact that within three days from the date of alleged execution of Ex. B18, he passed away on
05.02.2005. Considering the senility of the executant viz., Venkidasamy Naidu and also considering his date of death, this Court is of the view that
Ex. B18 has come into existence in a suspicious circumstances and the same have not been removed by the appellants/defendants. Therefore, the
finding given by the first appellate Court with regard to Ex. B18 cannot be accepted and since the suit third item has been purchased for the benefit
of erstwhile Hindu joint family, both the plaintiffs and defendants are equally entitled to get half share.
In the plaint it has been specifically stated that the suit first item is an ancestral property and the suit fourth item has been in the name of mother
of the first plaintiff and first defendant viz., Subbammal and she pre-deceased her husband by name Venkidasamy Naidu. The sale deed which
stands in the name of Subbammal has been marked as Ex. A5.
In the written statement filed on the side of the defendants no specific denial has been made with regard to character of the suit first and fourth
items and therefore, both parties are entitled to get equal share in suit items 1 and 4.
The first and foremost question of law settled in the present Second Appeal is as to ""whether the first appellate Court is correct in coming to a
conclusion that the suit third item is liable for partition, since it has accepted the will dated 02.02.2005?
It has already been pointed out that both the trial Court as well as first appellate Court have concurrently found that the suit third item is joint
family property. Under the said circumstances, with regard to the said finding given by the first appellate Court is not erroneous, baring the finding
given by the first appellate Court with regard to Ex. B18, the will dated 02.02.2005.
The second substantial question of law settled in the present Second Appeal is as to ""whether the Courts below are right in granting a decree
of partition in respect of suit items 1, 2 and 4?
After having elaborate discussion, this Court has found that the suit second item is the separate property of the first defendant. Under the said
circumstances, the concurrent findings given by the Courts below with regard to suit second item are not factually and legally sustainable.
The third substantial questions of law formulated in the present Second Appeal is as to ""whether the Courts below are correct in coming to a
conclusion that the suit second item is also liable for partition?
As pointed out earlier, the Courts below have erroneously found that the suit second item is a joint family property and therefore, the third
substantial question of law is decided in favour of the appellants/defendants.
The present Suit has been instituted for the reliefs of partition and separate possession of half share of the plaintiffs. It has already been pointed
out that the suit first item is the ancestral property and the suit fourth item is the separate property of mother of the first plaintiff and first defendant
and in suit items 1 and 4, both parties are entitled to equal moieties. With regard to suit third item, the specific finding given by the Courts below is
that the same is also a joint family property and this Court has independently discussed in detail with regard to character of the suit third item and
ultimately found that the same is nothing but a joint family property. Further, this Court has specifically held that the suit second item is the separate
property of the first defendant and the same is not liable for partition. To put it in short, both the plaintiffs and defendants are having equal moieties
over the suit items 1, 3 and 4 except suit item No. 2 and to that effect, the present Second Appeal as well as Cross Objection are liable to be
allowed in part. In fine, the Second Appeal as well as Cross Objection are allowed in part without cost. Connected Miscellaneous Petition is
closed. The Judgments and decrees passed by the Courts below are modified as follows:
The plaintiffs are entitled to get half share in suit items 1, 3 and 4 and to that extent a preliminary decree is passed without cost and Suit is
dismissed without cost in respect of suit second item.