Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
20. 12.2013 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH A.S(MD)No.70 of 1998 and CMP(MD)No.2380 of 1998 P.Muthukumar .. Appellant / Plaintiff Vs 1.Papa alias Papathi Ammal (Died) 2.Sarojini 3.Devi 4.Soundaram 5.Sandhyahu 6.Pandian .. Respondents 1 to 6 /Defendants 1 to 6 *(R2 to R4 recorded as LRs of the deceased 1st respondent vide order dated 31.07.2013) PRAYER.. This Appeal Suit is filed under Section 96 of CPC., against the Judgment and Decree made in O.S.No.5 of 1996, on the file of Sub Court, Sivagangai, dated 16.06.1997. For Appellant .. Mr.A.Sivaji For Respondents ..Mr.R.Ganesan (R2, R3, R5 and R6) For Respondent-4 .. No Appearance :JUDGMENT
The appellant, who is the plaintiff in the Original Suit, has preferred this Appeal Suit, against the judgment and decree dated 16.06.1997 made in O.S.No.5 of 1996, on the file of Sub Court, Sivagangai.
2. For the sake of convenience, the parties arrayed in the Suit are referred in this appeal.
3. The plaintiff filed a suit for partition of his 3/5 share in the suit properties and for mesne profits. Briefly the case of the plaintiff as stated in the plaint is that the plaintiff's father one Rathina Devar and his first wife viz., Nagammal and 2nd wife Papa alias Papathi Ammal. The plaintiff and 4th defendant are children through first wife viz., Nagammal. The first defendant is second wife of Rathina Devar and second and 3rd defendants are children through first defendant. The above said Rathina Devar died in April 1995, leaving behind the plaintiff and Defendants 1 to 4 are legal heirs. The Suit properties are joint family properties and enjoyed by the Rathina Devar, plaintiff and defendants, as joint family properties. Therefore, the plaintiff is entitled to 3/5 share in the suit properties. But the first defendant sold the entire item No.3, including the plaintiff's share to 5th defendant in August, 1995 and therefore, impleaded the above said Sandiyahu as 5th defendant in the suit. Therefore, the plaintiff filed the suit for partition of 3/5 share in the suit properties.
4. The deceased first respondent / first defendant filed a written statement and adopted by defendants 2, 3 and 5 in which it is denied the contention that the suit properties are joint family properties and also denied that the plaintiff is entitled to 3/5 share in the suit properties. According to the defendants, the 10th item of the suit property originally belonged to one Venkatachalapathy Raja. The husband of the 2nd defendant viz., Pandian purchased the plot on 19.03.1973 by a registered sale deed and he constructed a rice mill in the above said property and the license alone in the name of his wife / second defendant. The above said 10th item is absolutely belonging to the 2nd defendant's husband Pandian. Therefore, he is proper and necessary party and hence, the suit is bad for non joinder of necessary party. Further, the suit properties and other joint family properties were already partitioned as per partition deed dated 10.03.1968. From the date of above said partition, the said Rathina Devar, and the plaintiff were living separately and not living as joint family or jointly enjoying the properties. Confirming the above said partition, the plaintiff sold his share to third parties. The above said purchasers are not impleaded in this suit, and hence, the suit is bad for non jointer of necessary parties on that ground also. In the partition deed, dated 10.03.1968, Door No.30 was allotted to the plaintiff and the first item (i.e.,) Door No.29-A house was allotted to Rathina Devar. The western portion of T.S.44 was allotted to the plaintiff and the second item eastern portion i.e., Door No.26/6 house was allotted to Rathina Devar. The suit items 3 to 8 were allotted to Rathina Devar. Rathina Devar had executed Inam settlement deed on 16.10.1980 in respect of his share in Items 1 and 2 of the suit properties in favour of the first defendant. Therefore, the first defendant is entitled to 1st and 2nd item of suit properties and he enjoying the properties by paying Kist receipts. Rathina Devar filed a Suit in O.S.No.962 of 1989 before the District Munsif Court, Sivagangai, as against the Government and obtained decree in his favour. Further Rathina Devar executed a ".Will". on 18.04.1995 in sound and disposing state of mind bequeathed the items 3 to 8 of the suit properties in favour of the first defendant and after his death, the above said ".Will". was came into effect. Therefore, the first defendant exclusively enjoying the suit properties by way of ouster and prescriptive title by adverse possession also. Further Rathina Devar executed an agreement for sale on 02.08.1995 and agreed to sell the 3rd item of suit property is in favour of 5th defendant during his life time. The Court fee also should be paid under Section 37(1) of Court fee Act and not Section 37(2). The defendants 2 to 4 are unnecessary parties and hence, the suit is bad for mis-jointer of unnecessary parties and therefore, prayed for dismissal of the suit.
5. The 6th defendant filed a separate written statement in which denied the contention of the plaintiff that the suit properties are joint family properties of Rathina Devar and also denied the plaintiff and defendants 1 to 4 enjoying the suit properties, as joint family properties and the plaintiff is entitled to 3/5 share. According to the 6th defendant, the 10th item of the suit property was purchased on 19.03.1973 by 6th defendant and constructed the super structure in the above said property and license alone obtained in the name of his wife 2nd defendant. But the 6th defendant alone running the rice mill business in the above said property. Therefore, the plaintiff or other defendants not entitled to any right in the above said 10th item of the suit property.
6. The plaintiff has filed reply statement in which it is denied that the 10th item is belongs to husband of the 2nd defendant. Further on 10.03.1968, the properties were not divided but it is only temporary arrangement and also both sides agreed to divide the properties latter on. The parties not acted as per the above said temporary arrangement and therefore, it is not come into effect. Further, the alleged registered settlement deed, dated 16.10.1980 is a forged document and also not came into force. The plaintiff has specifically denied the alleged ".Will"., dated 18.04.1995 executed by the plaintiff's father in respect of Items 3 to 8 in favour of the first defendant. The plaintiff's father never executed the above said ".Will". and it is created by the defendants. Further, the plaintiff's father was unconscious and bedridden for 4 years prior to his death. Therefore, specifically denied as the above said alleged Will as created and forged one. Further, the alleged sale deed executed by first defendant in favour of 3rd defendant in respect of 3rd item of suit properties also not valid. Further, in the plaint filed by the plaintiff's father itself averred as the suit properties are ancestral properties and therefore, prayed for decreed the suit.
7. The Trial Court has framed the following 13 issues and the issues are translated from Tamil to English and stated as under: i)Whether the 10th item of suit property belonging to the separate property of Pandian?. ii) Whether the vendors of the property sold to Pandian are necessary party to the suit ?. iii)Whether the alleged partition effected under the partition deed dated 10.03.1968 is true?. iv)Whether the suit is hit by partial partition in view of the properties sold by plaintiff not impleaded?. v)Whether it is true that the registered settlement deed executed on 16.10.1980 in favour of the first defendant is true and the first defendant is entitled to suit properties in item Nos. 1 and 2 as per settlement deed?. vi) Whether Rathina Devar had executed the Will in favour of the first defendant on 18.04.1995 in respect of items 3 to 8 is true?. vii)Whether the defendants are entitled to claim right by adverse possession?. viii) Whether the sale deed obtained by 5th defendant in respect of 3rd item bind the plaintiff ?. ix)Whether the court fee correctly paid?. x) Whether the defendants are necessary parties?. xi) Whether the defendants are entitled to exemplory costs?. xii)Whether the plaintiff is entitled to relief sought for in the plaint?. xiii)To what relief the plaintiff is entitled to ?.
8. To prove the case of the plaintiff, two witnesses were examined as PW1 and PW2 and marked ten documents as Ex.A1 to Ex. A10. On the side of the defendants, five witnesses were examined as DW1 to DW5 and marked six documents as Ex.B1 to Ex. B6.
9. Considering the above said oral and documentary evidence, adduced on either side, the Trial Court has held that the 10th item of suit property is exclusively belonging to the 6th defendant and answered the first issue accordingly. The Trial Court has discussed the issue Nos.3,5 and 6 jointly and finally held that the alleged partition between the plaintiff and his father, Rathina Devar is true and answered issue No.3 accordingly. As far as Issue No.5 is concerned, the Trial Court has held that the settlement deed dated 16.10.1980 is true and valid document and answered issue No.5 accordingly. But, the Trial Court found that the alleged Will dated 18.04.1995 is not proved as true and valid documents and answered the 6th issue accordingly. The Trial Court has discussed in issue Nos. 2 & 4 jointly and finally held that the properties sold by the plaintiff need not be impleaded in the suit and therefore, the suit is not barred by partial partition and answered the two issues accordingly. With regard to the issue Nos.7 and 8, the Trial Court has granted equitable relief as prayed for by the 5th defendant in respect of the 3rd item. The Trial Court has answered for 9th issues as the plaintiff is entitled to one-fifth share in all the suit properties except item Nos. 1,2 and 10. With regard to issue Nos.10 & 11, the defendants are not unnecessary parties and therefore, not entitled to exemplary costs and answered both the issues accordingly. The Trial Court has answered the issue Nos. 12 and 13 jointly and held that the plaintiff is entitled to one - fifth share in respect of the suit items except item Nos.1,2 and 10 and also granted equitable relief as prayed for by 5th defendant i.e., allotted 3rd item to the 1st defendant's share. Finally, the Trial Court has passed a preliminary decree and allotted 1/5th shares in respect of the suit properties except item Nos. 1,2 and 10 and also equitable relief granted to 5th defendant in respect of item No.3.
10. Being aggrieved over the above said preliminary decree passed by the Trial Court, the appellant/plaintiff alone has filed this appeal suit.
11. Heard the learned counsel appearing for the appellant/plaintiff. On the side of the respondents, counsel not appeared and no representation.
12. Points for consideration in this appeal to be decided are as follows: i)Whether the plaintiff is entitled to one-fifth share in all the suit properties as pleaded by the appellant/plaintiff?. ii)Whether the findings of the Trial Court has held that the plaintiff is not entitled to any share in item Nos.1,2 and 10 are correct?. iii)Whether the alleged Ex.B3 settlement deed is true and valid and binding on the plaintiff ?. iv)Whether the appeal is to be allowed?.
13. POINS FOR CONSIDERATIONS No.1 TO3The learned counsel appearing for the appellant/plaintiff mainly contended that the defendants have not proved the alleged Ex.B3, settlement deed which was alleged to have executed in favour of the first defendant in respect of the item Nos.1 & 2 as true and valid document and therefore, not binding on the plaintiff. The another contention of the learned counsel for the plaintiff side is that the 10th item of the suit property was purchased only out of the income from joint family properties and the sixth defendant has no means to pay the sale consideration for the above said sale deed and therefore, the tenth item of the suit property is also joint family property and the plaintiff is entitled to the share in the suit property, but the Trial Court has wrongly dismissed the suit in respect of the item Nos. 1, 2 and 10 and prayed for allotment of plaintiff's share in the above said items. Further, the learned counsel for the plaintiff submitted that since the suit properties are the joint family properties, the plaintiff is entitled to 3/5th share, but Trial Court has passed a preliminary decree only for one-fifth share and therefore, the above said preliminary decree passed by the Trial Court is not correct.
14. Admittedly, the plaintiff filed a suit for partition in respect of 10 items of suit properties. The relationship of the parties stated in the plaint is not in dispute and also not disputed that the father of the plaintiff, namely Rathina Devar was died in April, 1995. The main contention of the plaintiff is that all the 10 items of suit properties are joint family properties and therefore, as a son of Rathina Devar through first wife, the plaintiff is entitled to 3/5 share in the suit properties.
15. Per contra, the case of the defendants is that item Nos. 1 to 9 and the several other items of joint family properties were already partitioned on 10.03.1968 and with the above said partition, the suit properties were allotted to the share of father namely, Rathina Devar and other several properties were allotted to the plaintiff's share and therefore, the plaintiff is not entitled to 3/5 share in all the properties item Nos.1 to 9 as claimed by the plaintiff. Further the case of the defendants is that the 10th item of the suit property is not a family property, it was purchased by 6th defendant by sale deed dated 19.03.1979 and constructed superstructure in the above said property and was running a rice mill business and therefore, the plaintiff or other defendants are not entitled to any right in the 10th item of the suit property. Further, the learned counsel appearing for the defendants submitted that the father of the plaintiff, namely, Rathina Devar already executed Ex.B3, settlement deed in respect of item Nos. 1 and 2 of the suit properties in favour of 1st defendant and therefore, the plaintiff is not entitled to any share item Nos. 1 & 2.
16. The defendant also contended before the trial court that the above said Ratina Devar had executed a Will on 18.04.1995 in respect of item Nos. 3 to 8 in favour of 1st defendant and as per the Will, the 1st defendant is entitled to the above said properties also. But the trial court rejected the above said claim and held that the alleged ".Will". is not proved as true and valid document. The defendants have not challenged the above said finding of the trial court. Further the trial court rejected the contention of the defendants that the plaintiff has not impleaded all the family properties and also not impleaded the purchasers of several properties of the plaintiff, and on that ground, the suit is not maintainable.
17. The Trial Court has discussed about the oral and documentary evidence adduced on both sides, particularly on admission of plaintiff who has deposed as PW1 and finally, held that the suit properties item Nos. 1 to 9 were already partitioned between the father, namely, Rathina Devar and his son / plaintiff as contended by defendants. The plaintiff challenged the above said finding of the trial court but a perusal of oral evidence of PW1 itself proved the above said partition as rightly held by trial court.
18. The plaintiff, who deposed as PW1 and he admitted the partition pleaded by the defendants as follows: ".FLk;g Vw;ghl;od; mog;gilapy; jhd; vd; mg;ghtpd; bgahpy; ,Ue;j iu!;kpy; vd; bgaUf;F khw;wg;gl;lJ/ ehd; eluhrDf;F fpiuak; bfhLj;j fpiuag;gj;jpuk; jhd; gp1/ me;jg; gj;jpuk; cz;ikahdJ jhd;/ mjpYs;s thrf';fis goj;J ghh;j;J jhd; ifbaGj;J nghl;nld;/ me;j gj;jpuj;jpy; vd; jfg;gdhh; nrh;e;J fpiuak; bfhLf;ft[kpy;iy/ mjpy; mth; rhl;rp nghltpy;iy/ me;j gj;jpuj;jpy; 10/03/68y; fz;l ghfgphptpidgo vd; g';Ff;F fpilj;jJ vd;W vGjg;gl;Ls;sJ/ vGj;J K:ykhfj;jjhd; 10/03/68y; FLk;g Vw;ghL bra;Jf;bfhz;nlhk;/ me;j FLk;g Vw;ghL gj;jpuk; vd; iftrk; cs;sJ/ mjpy; Kj;Jrhkp. bry;yrhkp njth;. mk;gyk;. bry;yKj;Jnjth;. Kj;Juhkyp';fk; vy;nyhUk; g".;rahj;jhh;fshf ,Ue;J brhj;Jf;fis gphpj;J je;jhh;fs;/".
19. The above said admission of plaintiff itself clearly proved that the partition dated 10.03.1968 is true and further, the plaintiff has admitted the above said partition deed is with him. But, no reason has been assigned for non-production of the above said partition deed. A perusal of the PW1 evidence further revealed that the plaintiff himself admitted that he sold several properties allotted to his share but deposed as if, he sold the properties to the third parties only on the instruction of his father. The above said contention is unbelievable and not supported any evidence and hence it cannot be accepted. Therefore, various admission of plaintiff, at the time of evidence, clearly proved that all the family properties were already partitioned on 10.03.1968 and as per the partition, the plaintiff had sold several properties allotted to his share and also enjoying several properties as his own. As rightly contended by the defendants that the suit item Nos.1 to 9 were allotted to the share of father of the plaintiff, in the above said partition. Therefore, the Trial Court has correctly held that the suit properties item Nos. 1 to 9 were already partitioned and allotted to the share of plaintiff's father as claimed by the defendants.
20. The main contention of the defendants is that the above said Rathina Devar executed a registered settlement deed in favour of 1st the defendant under Ex.B3 dated 16.10.1980. The pleadings in the plaint and oral evidence of the plaintiff reveal that the plaintiff has not denied the above said settlement deed; but only contended as if he is not aware of the above said settlement deed. Admittedly, the above said Ex.B3 is the registered settlement deed and it is not specifically denied in the plaint as well as in the oral evidence. Further, the plaintiff has not stated any specific reasons to reject the above said settlement deed as invalid document. As rightly discussed by the Trial Court and from the oral and documentary evidence adduced on either side clearly proved that the above said settlement deed is true and valid document and also came into effect and on that basis, the first defendant was enjoying the suit property till his death. Therefore, the findings of the Trial Court that the 1st defendant was entitled to suit item Nos.1 and 2 as per Ex.B3 settlement deed is correct and no need to interfere in the above said findings.
21. The deceased first defendant has claimed right over the suit item Nos. 3 to 8 by contending that the Rathina Devar had executed Ex.B5 / Will dated 18.04.1995 and to prove the same, on the side of the defendants examined DW2, one Balusamy and also examined one M. Pondy as DW2 as attesting witnesses in the above said Will. But the Trial Court discussed in detail about the oral testimonies of both the witnesses and finally held that the above said Will is not proved as true and valid documents under Section 68 ( c ) of Indian Evidence Act and Section 63 ( c ) of Hindu Succession Act. The above said Will Ex. B5 dated 18.04.1995 is specifically denied by plaintiff. On the side of defendants has not proved the state of mind at the time of alleged execution of Will by examining any witnesses working in the hospital. Not produced any fitness certificate also. No details given why he was admitted in the hospital. The oral testimonies of DW2 and DW2 show that they have not seen the signature while affixing the signatures in Will by testator. Further the alleged Will is a typed document and hence it is doubtful document as rightly pointed out by the learned counsel for appellant and rightly concluded by trial court. Further, the defendants have not challenged the above said findings of the Trial Court. Therefore, the above said alleged Will Ex.B5 dated 18.04.1995 is not proved as true and valid documents and on that basis, first defendant cannot claim any exclusive right over the suit item Nos. 3 to 8.
22. The plaintiff has filed the suit including 10th item of suit property. According to the defendants, the 10th item of the suit property is not a joint family property as contended by the plaintiff, but it is purchased by the 6th defendant, namely T. Pondy who is the husband of the 2nd defendant. It is not in dispute that item 10 of the suit property was purchased under Ex.B6 sale deed dated 19.03.1973 in the name of the 6th defendant namely T. Pondy from one Karthikeyan Venkatachalapathy Raja through Power Agent, Subramanian. Therefore, the above said property is not purchased by the member of the plaintiff's family, but husband of the 2nd defendant. The plaintiff has not stated any reasons why the above said property was purchased in the name of 6th defendant and not purchased in the name of the plaintiff's father or any other member of the family. Absolutely, there is no documentary and oral evidence to prove that the above said property was purchased out of the joint family income and not paid the consideration by 6th defendant. The Trial Court has rightly held that the 10th item of suit property is a separate property of 6th defendant and not a joint family property of the plaintiff's family and therefore, no interference needs in the above said findings of the Trial Court.
23. With regard to other items, namely, item Nos.3 to 9, as already discussed the Ex.B5/Will is not proved as true and valid documents and therefore, the 1st defendant is not entitled to exclusive right over the item Nos.3 to 8 in the suit properties under Ex.B5 Will. Further, the plaintiff himself admitted his evidence that partition between the plaintiff and his father was executed on 10.03.1968 and as per the above said partition, he sold several properties and hence, the suit item Nos. 3 to 9 are not joint family properties at the time of filing the suit. Therefore, the Trial Court has rightly held that the plaintiff is entitled to one-fifth share in suit item Nos. 3 to 9 alone except Item Nos. 1, 2 and 10.
24. Further, the Trial Court has held that since the 5th defendant has purchased suit item No.3 from the 1st defendant in good faith for value consideration without knowledge and hence, he is entitled to the reliefs sought for by 5th defendant and accordingly, the above said third item allotted to the share of the 1st defendant, at the time of division of the properties. The plaintiff has not stated any acceptable grievance in the above said findings. Therefore, the entire findings of the Trial Court in all the issues are correct and no interference is needed in the above said findings and answered the points for consideration Nos. 1 to 3 accordingly.
25. In view of the above said findings, the first appeal is to be dismissed and the decree and judgment passed by the Trial Court is to be confirmed and answered the 4th point for consideration accordingly.
26. In the result, the appeal suit is dismissed and confirmed the decree and judgment passed by the Trial Court. Consequently, connected Civil Miscellaneous Petition is closed. No order as to costs. MPK/GV To The Sub Court, Sivagangai,