parties : V. Ravichandra Das and Another Vesus V. Mohan Govinda Das and Others - Court Judgment

(Prayer: First Appeal is filed under Section 96 of Civil Procedure Code, against the judgment and decree dated 30.11.2005 made in O.S.No.30 of 2004, on the file of the First Additional District Court, Dharmapuri at Krishnagiri.)

R. KARUPPIAH, J.

1. The appeal is directed by the appellants/plaintiffs as against the judgment and decree dated 30.11.2005 made in O.S.No.30 of 2004 on the file of the First Additional District Court, Dharmapuri at Krishnagiri.

2. For the sake of convenience, in this judgment, the parties are referred to, as arrayed in the suit.

3. The plaintiffs have filed a suit for partition and also for permanent injunction restraining the defendants 2 to 4 from alienating the plaintiffs' share in the suit property. The trial Court has dismissed the suit and aggrieved over the same, the plaintiffs have preferred this appeal.

4. Briefly, the case of the plaintiffs is that the plaintiffs and the first defendant are the brothers and along with their father, namely, K.G.Venkatachalam constituted a Hindu joint family and father was the joint family manager and Kartha and the said joint family owned vast extent of properties including more than 60 acres of irrigated lands and it also doing business to the tune of Rs.10 lakhs and getting income for more than Rs.5 lakhs per year from the said joint family properties and money lending business. It is also averred in the plaint that the plaintiffs' father had purchased the suit property in the name of the first defendant from the Official Receiver of Dharmapuri District for Rs.26,000/- in an auction held on 18.7.1973 and the Official Receiver had executed registered sale deed in favour of the first defendant on 13.8.1975 and delivered the possession of the suit property. At that time, the first defendant was aged about 19 years and he was not getting any separate income and he was not having any separate funds to enable him to pay the above said sale consideration. Therefore, the suit property was purchased only for the joint family from and out of the joint family income and also treated and enjoyed as joint family property and it was never treated or enjoyed as of the separate property of the first defendant. Further the above said fact was also stated in the list of outstandings due to the joint family prepared on 20.4.1975 in which the first defendant, first plaintiff and their father and mother and on behalf of the second defendant, first defendant had signed.

5. It is also averred in the plaint that the joint family lands were partitioned and a partition deed was executed on 23.3.1977. According to the plaintiffs, the suit property consists of shops and lodge building and since it could not be divided, on 30.3.1977 at the suggestion of some panchayatdars, 1/3rd share in the suit property each were allotted to the plaintiffs and the first defendant and to evidence the same, a partition list was executed in which the first plaintiff, their father and mother and on behalf of the second defendant, first defendant had signed. Therefore, the plaintiffs and the first defendant are entitled to 1/3rd share each in the suit property since their father K.G.Venkatachalam died on 10.10.1984 and they had been in joint possession and enjoyment of the same and that they had also been dividing the rental income at 1/3rd share. Therefore, the first defendant is not entitled to question the plaintiffs' 2/3rd share in the suit property.

6. It is also averred in the plaint that the first defendant was a share holder and for some time, a Director of the fifth defendant company. The Managing Director of the said company, namely, Dr.Prema Prabakaran who is the sister of the plaintiffs and the first defendant and the fifth defendant company had obtained a loan from the second defendant bank, the first defendant appears to have given the entire suit property as a security to the second defendant bank for the said loan given to the fifth defendant and the said loan was not cleared. Hence the second defendant filed a suit in O.A.No.691 of 1999 before the Debt Recovery Tribunal and obtained an order of attachment in D.R.C.No.83/2001 in the said O.A.No.691 of 1999 in respect of the suit property and the Debt Recovery Officer is bringing the suit property for sale. Only after the order of attachment, dated 14.12.2001 was affixed on the suit property, the plaintiffs came to know the real facts. It is further averred that the first defendant is only having 1/3rd share and hence second defendant is not entitled to proceed with the entire suit property including the plaintiffs' 2/3rd share and further, the first defendant is no longer a Director of the fifth defendant company, he is not liable to pay the above said loan to the second defendant bank. It is also stated in the plaint that there was sale tax arrears by the fifth defendant company payable to third defendant for the years 1995 to 1998 and the fourth defendant also threatened to proceed against the first defendant to bring the entire suit property for sale and a notice was also issued on 21.11.2001. Further, averred in the plaint that the defendants 2 to 4 are not entitled to proceed against the first defendant and his properties including his 1/3rd share in the suit property and they are also not entitled to bring the plaintiffs' 2/3 share of suit property for sale. Therefore, the plaintiffs filed the suit for partition and separate possession of their 1/3rd share each in the suit property.

7. The first defendant remained ex parte before the trial Court. The second defendant has filed separate written statement denying various averments in the plaint and stated that the suit property is the exclusive property of the first defendant as it has been purchased by the first defendant in an auction held by the Official Receiver on 18.7.1973 and a sale deed has been executed on 13.8.1977 in favour of the first defendant and the first defendant had mortgaged the above said property as security to the second defendant for the loan advanced to fifth defendant. Since the above said loan was not repaid, the second defendant had initiated legal proceedings before the Debt Recovery Tribunal and the property has been attached and the plaintiffs have no right or title over the suit property. It is also averred in the written statement that the plaintiffs are indirectly trying to stop the proceedings before the Debt Recovery Tribunal and this Court has no jurisdiction to stop the proceedings. Therefore, the plaintiffs are not entitled to get any relief and the suit is also not maintainable. It is further averred that the plaintiffs have already moved Debt Recovery Tribunal in M.A.4 of 2002 in DRC 83 of 2001 in O.A.No.691 of 1999 for raising the attachment in respect of the suit property and since failed to get favourable order, the plaintiffs have filed this suit and further the first defendant had also moved the High Court for staying the sale proceedings pending before the Debt Recovery Tribunal and it was dismissed by this Court and therefore, the second defendant prays for dismissal of the suit.

8. On the side of the third and fourth defendants, separate written statements were filed by stating that the suit property was purchased by the first defendant from the Official Receiver and denying the contentions of the plaintiffs that the suit property was purchased in the name of the first defendant from and out of the joint family funds and it is also denied that the first defendant was only 19 years at the time of purchase. It is further stated that at the time of partition among the family of the plaintiffs and first defendant, the suit property stood in the name of the first defendant and it was treated as first defendant's property and hence it was not included in the above said partition list. Therefore, the suit property is the absolute property of the first defendant and hence, the question of allotment of 1/3rd share each to the plaintiffs does not arise. It is further averred in the written statement that the plaintiffs and the first defendant colluded each other in order to avoid the tax arrears due to the fourth defendant. It is also averred that the first defendant applied for TNGST Registration Certificate for running M/s.Hosur Automotives Private Limited and at that time, the first defendant submitted the charge of the property tax from A.K.Natesa Chetty issued by Krishnagiri Municipality, dated 7.3.1979 and subsequent house tax stands in the name of the first defendant. Further, the first defendant had produced encumberance certificate from 1.1.1978 to 31.10.1992 which also stood in the name of the first defendant and the first defendant also submitted the application for registration on behalf Hosur Automotives (P) Ltd., on 13.5.1996 for TNGST registration certificate in which, the first defendant had signed as the Managing Director and also submitted the Board resolution dated 7.4.1993 appointing the first defendant as the Managing Director. It is further stated that the suit property is the absolute personal property of the first defendant and he had shown the said property as solvency while applying for TNGST registration certificate. Now in order to escape the liability of the payment of the tax arrears due to the Government by the fifth defendant company, the plaintiffs and the first defendant colluded each other and filed this suit and therefore, the suit is not maintainable and also pleaded to permit the third and fourth defendants to proceed against the first defendant to recovery the tax arrears due to the Government under the provisions of Revenue Recovery Act.

9. The fifth defendant has filed separate written statement in which, it is stated that the suit property was given as a collateral security for the loan obtained from the Lakshmi Vilas Bank Limited for the purpose of Hosur Automotives Private Limited for which, the suit property was given in a family settlement to Dr.Prema Prabakaran and the first defendant, the younger brother of this defendant is also one of the directors of the said company. It is also stated that the father of the first defendant namely Late Venkatachalam had purchased the suit property with the income derived from the joint family properties from the Official Receiver in the name of the first defendant who had no source of income then. Further in Muchalika dated 17.12.2001, the suit property was agreed to be given to the fifth defendant being her share. Further, the defendants 1 and 5 have owned other properties, viz., lands, hotel and gold jewels and all of the said properties stand in the name of the plaintiffs and the first defendant. Even though all the properties stand in the names of the plaintiffs and first defendant, they are all joint family properties and therefore, the suit ought to have been filed for partition in respect of the above said properties also since this defendant is entitled to 1/4th share in the joint family properties. It is further stated that the suit property was given as a collateral security for the loan obtained from Lakshmi Vilas Bank for the purpose of Hosur Automotives Private Limited in which the suit property was given in a family settlement to Dr.Prema Prabakaran in which the first defendant also one of the Directors. Therefore, the plaintiffs are entitled to 1/4th share each in the joint family properties and if the plaintiffs filed fresh suit for partition including all the joint family properties, the fifth defendant is prepared to take 1/4th share.

10. From the above pleadings, the trial Court has framed two issues and on the behalf of the plaintiffs, three witnesses were examined as Pws.1 to 3 and marked seven documents as Exs.A1 to A7 and on behalf of the defendants, two witnesses were examined as DW.1 and DW.2 and marked 22 documents as Exs.B1 to B22.

11. On consideration of the above said oral and documentary evidence adduced on either side, the trial Court has held that the suit property is not a joint family property of the plaintiffs and first defendant and it is exclusive property of the first defendant and therefore, the plaintiffs are not entitled to any share in the said property and accordingly, dismissed the suit. Aggrieved by the said judgment and decree passed by the trial Court, the plaintiffs have filed this first appeal.

12. The points for consideration in this appeal are,

i. Whether the suit property is a joint family property of the plaintiffs and first defendant as alleged by the plaintiffs?

ii. Whether the plaintiffs are entitled to 1/3rd share each in the suit property?

iii. Whether this appeal is to be allowed?

13. Heard the learned counsel for the plaintiffs and the defendants and perused the entire material documents.

14. It is not in dispute that the plaintiffs and the first defendant are the brothers and their father is Late A.G.Venkatachalam. It is also not in dispute that the suit property was purchased in the name of the first defendant on 13.8.1975 from the Official Receiver under Ex.A2 in the proceedings in I.P.No.10 of 1971. It is admitted by both sides that the first defendant was a shareholder in the fifth defendant company and the fifth defendant company had obtained a loan from the second defendant bank and for the above said loan, the first defendant had given the suit property as security and since the said loan was not cleared off, the second defendant filed a suit in O.S.No.691 of 1999 before the Debt Recovery Tribunal-I, Chennai against the defendants 1, 5 and others and obtained an order of attachment in DRC No.83 of 2001 in respect of the entire suit property and issued a notice intimating that the suit property was bringing to public auction. Further, the third and fourth defendants had initiated proceedings as against the fifth defendant company for recovery of sales tax arrears payable for the year 1995-98 as against the first defendant personally and also against his properties.

15. In the above circumstances, the brothers of the first defendant had filed this suit claiming 1/3rd share each in the suit property by contending that the suit property was purchased in the name of the first defendant by his father Late K.G.Venkatachalam from and out of joint family's income and savings since the first defendant was not getting any separate income or funds to purchase the property and also contended that the suit propery is all along with the joint possession and enjoyment of both the plaintiffs and first defendant and therefore, both the plaintiffs claim 1/3rd share each in the suit property.

16. It is not in dispute that both the plaintiffs and first defendant are the sons of Late K.G.Venkatachalam. The plaintiffs themselves have admitted in the plaint as well as in their oral evidence that the joint family properties were already partitioned under a registered partition deed Ex.A1 dated 23.3.1977 between the plaintiffs, first defendant and their father Late K.G.Venkatachalam, in which, the suit property was not included.

17. According to the plaintiffs, the suit property was purchased in the name of the first defendant from and out of joint family funds and also contended that the first defendant was not getting any separate income and was not having any separate funds since at the time of purchase, he was only 19 years and therefore, it is joint family property. In the instant case, the first defendant who is the brother of the plaintiffs was remained ex parte before the trial Court as well as this Court. The learned counsel appearing for the contesting defendants submitted that the suit property is separate property of the first defendant and he had given the same as security for obtaining loan from the second defendant bank for fifth defendant company and since the above said loan was not discharged, the second defendant initiated the recovery proceedings in O.A.No.691 of 1999 before the Debt Recovery Tribunal and brought the suit property for sale and as against the said proceedings, the first defendant who is the brother of the plaintiffs has challenged, but the Court had rejected the same and then the plaintiffs have filed the present suit.

18. In the plaint itself, the plaintiffs have admitted that among the plaintiffs, first defendant and their father, a partition was effected under Ex.A1 registered partition deed on 23.3.1977 and the suit property was purchased in the name of the first defendant even prior to the above said alleged partition i.e. 13.8.1975 itself, but the suit property was not included in the above said registered partition deed Ex.A1. A perusal of the partition deed reveal that all the joint family properties were partitioned and not left out any property as common as pleaded by the plaintiffs and also not even referred in the partition deed about the suit property and further on the side of the plaintiffs, no acceptable reason was given for not including the suit property in the above said partition deed if really it was purchased from and out of joint family nucleus. Therefore, as rightly held by the trial Court, the suit property is not 'joint family property' as alleged by the plaintiffs and it is only separate property of the first defendant.

19. The learned counsel appearing for the plaintiffs would mainly contend that merely because the suit property was purchased in the name of the first defendant, it cannot be presumed that the suit property is exclusively belonging to the first defendant and merely because it was not referred in Ex.A1 partition deed, it cannot be taken as adverse inference as against the plaintiffs. It is further contended that the trial Court has wrongly held that Ex.A3 and A4 unregistered partition lists dated 20.4.1975 and 31.3.1997 cannot be relied on, on the ground that they are not proved as genuine documents and also unregistered documents and the trial Court has failed to appreciate the above said documents in a proper perspective and therefore, the findings of the trial Court is not correct.

20. Per contra, the learned counsel appearing for the contesting defendants submitted that the above said documents, namely Ex.A3 and Ex.A4 unregistered partition deeds were prepared only for the purpose of filing the suit and the above said documents are not proved by reliable oral and documentary evidence and on a perusal of the oral testimony of the plaintiffs clearly show that the above said documents are only created documents and therefore, the trial Court has rightly held that the said documents were not proved.

21. Admittedly, in the instant case, Ex.A3 alleged partition list dated 20.4.1975 is prior to Ex.A2 sale deed dated 13.8.1975 in which the suit property was purchased in the name of the first defendant and therefore, there is no reference about Ex.A2 sale deed in Ex.A3 alleged partition list. A perusal of the oral evidence of PW.1, he has deposed at the time of cross-examination about the suit property as he does not know anything about in whose name patta was granted in respect of suit property and who has paid the tax, sales tax, etc. Further, as already discussed, all the joint family properties belonged to the plaintiffs and defendants were already partitioned under Ex.A1 23.3.1977 in which, it is not stated that the suit property alone kept as joint family property and above said fact itself reveals that the contention of the plaintiffs is not correct.

22. Another contention of the plaintiffs is that since the first defendant was 19 years old at the time of Ex.A2 sale deed, he had no separate income/ But in Ex.A1 alleged registered partition deed dated 23.3.1977 itself, it is stated that the joint family properties were as common till 25.4.1973 and then on 25.4.1973 there was a partition regarding all the joint family properties and divided as A,B and C schedule and allotted the above said properties to the plaintiffs and the first defendant and no property was allotted to the father of the plaintiffs and first defendant and according to the above said partition, all the sharers are enjoying their respective properties and the relevant portion of the Ex.A1 reads as under:

“TAMIL”

23. A careful reading of the above said averments made in the above said document clearly shows that even on 25.4.1973 itself there was a partition between father and sons regarding all the joint family properties and all the joint family properties were allotted to sons, namely, plaintiffs and first defendant as A,B and C schedule items and no property was allotted to the father of the plaintiffs and first defendant and from the date of said partition, the plaintiffs and first defendant were enjoying their respective properties and only to confirm the above said oral partition between the parties, Ex.A1 was registered and therefore, the above said document itself clearly proved that all the joint family properties were already partitioned and the plaintiffs and first defendant were enjoying the properties as per their shares allotted in the above said partition. Therefore, the contention of the plaintiffs that the suit property was purchased under Ex.A2 sale deed out of the funds of the joint family nucleus and even after Ex.A2 partition, the suit property alone is in joint possession of the plaintiffs and first defendant are all false.

24. As already discussed above, the suit property was admittedly purchased in the name of the first defendant who is not Kartha of the family at the time of purchase since his father was alive and no reason has been stated that why the suit property was purchased in the name of the first defendant who is the younger son of Kartha of the family and further, a perusal of both sides oral and documentary evidence reveal that the patta, kist and other tax receipts in respect of the suit property were paid only by the first defendant and not by father of the plaintiffs and first defendant. Except oral testimony of PW.1, no other oral or documentary evidence was adduced by the plaintiffs to prove that the suit property is in joint possession of the plaintiffs and first defendant even after the alleged partition dated 25.4.1973 and therefore, the suit property was purchased only by the first defendant and it is his separate property and right from the purchase, he has been enjoying the same and not purchased from and out of joint family nucleus as alleged by the plaintiffs. Therefore, the suit property is exclusively belonging to the first defendant and the plaintiffs are not entitled to any share in the suit property.

25. Therefore, the trial Court has correctly discussed the entire oral and documentary evidence on either side and concluded that the suit property is not joint family property as alleged by the plaintiffs and the plaintiffs are not entitled to any share in the suit property.

26. From the above discussion, we are of the view that the suit property is not joint family property as alleged by the plaintiffs and it is separate property of the first defendant and the plaintiffs are not entitled to any share in the suit property and therefore, the appellant/plaintiffs are not entitled to any relief as prayed for in the suit and hence this first appeal is liable to be dismissed.

In the result, the appeal suit is dismissed and the judgment and decree passed by the trial Court dated 30.11.2005 in O.S.No.30 of 2004 are confirmed. There shall be no order as to costs.