Madras High Court
Kulandhaiyaa Sethurayar (Died) vs K.Sivakumar on 8 December, 2016
Bench: A.Selvam, P.Kalaiyarasan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2016
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
A.S.(MD)Nos.21 of 2007 and 22 of 2007
A.S(MD)No.21 of 2007:
1.Kulandhaiyaa Sethurayar (died)
2.S.Karthikeyan
3.Tamilarasi Rajamannar
4.Tamaraiselvi Kannan
5.Manimegalai Kannan
6.Uma Prahalathan
(Appellants 3 to 6 are brought on record
as legal heirs of the deceased first
appellant vide order dated 22.09.2016
made in M.P(MD)No.1 of 2014) .. Appellants
Vs.
K.Sivakumar .. Respondent
PRAYER: Appeal Suit is filed under Section 96 of the Code of Civil Procedure,
1908 against the Judgment and decree dated 29.03.2006 passed in Original Suit
No.95 of 2004 by the Principal District Court, Thanjavur.
!For Appellants : Mr.M.A.Abdul Wahab
^For Respondent : Mr.V.R.Shanmuganathan
A.S(MD)No.22 of 2007:
1.M.Kulandhaiyaa Sethurayar (died)
2.S.Karthikeyan
3.Tamilarasi Rajamannar
4.Tamaraiselvi Kannan
5.Manimegalai Kannan
6.Uma Prahalathan
(Appellants 2 to 6 are brought on record
as legal heirs of the deceased sole
appellant vide order dated 22.09.2016
made in M.P(MD)No.1 of 2014) .. Appellants
Vs.
1.K.Sivakumar
2.Thiruvengadarajan .. Respondents
PRAYER: Appeal Suit is filed under Section 96 of the Code of Civil Procedure,
1908 against the Judgment and decree dated 29.03.2006 passed in Original Suit
No.88 of 2005 by the Principal District Court, Thanjavur.
!For Appellants : Mr.M.A.Abdul Wahab
^For Respondents : Mr.V.R.Shanmuganathan
:COMMON JUDGMENT
[Common Judgment of the Court was made by A.SELVAM, J.] These appeal suits are directed against the Common Judgment dated 29.03.2006 passed in Original Suit Nos.95 of 2004 and 88 of 2005 by the Principal District Court, Thanjavur.
2.The first respondent in both the appeal suits as plaintiff has instituted Original Suit No.95 of 2004 on the file of the trial Court praying to pass a preliminary decree of partition, wherein the deceased first appellant and second appellant have been shown as defendants. Likewise the deceased first appellant as plaintiff has instituted Original Suit No.88 of 2005 on the file of the trial Court for the relief of perpetual injunction, wherein the respondents have been shown as defendants.
3.In the plaint filed in Original Suit No.95 of 2004, it is averred that the plaintiff and second defendant are the sons of the first defendant. The first defendant, his father and brother have constituted a Hindu joint family and amongst them a partition has takenplace on 03.07.1959 through a registered partition deed. By virtue of the same, the 'C' schedule properties mentioned therein have been allotted to the share of the first defendant and the same have been shown as suit 'A' schedule properties in the present suit. The suit 'B' schedule properties have been purchased in the name of the first defendant in the capacity of joint family manager by utilising the joint family funds. Since the plaintiff is one of the members of joint family, he is entitled to get 1/3 share. The defendants are not amenable for having amicable partition. Under the said circumstances, the present suit has been instituted for the relief sought therein.
4.In the written statement filed on the side of the defendants, it is averred that the suit 'A' schedule properties are allotted to the share of the first defendant in the partition which has takenplace on 03.07.1959 between the first defendant, his brother and their father. It is false to aver in the plaint that the suit 'B' schedule properties are also joint family properties. The first defendant has done kerosene business and by utilising his separate funds, the suit 'B' schedule properties have been purchased in his name and therefore the suit 'B' schedule properties are the separate properties of the first defendant and in which both the plaintiff and second defendant are not having any partible interest and therefore the present suit deserves to be dismissed.
5.In the plaint filed in Original Suit No.88 of 2005 it is averred that the plaintiff has purchased all the suit properties by utilising his separate funds and in which the defendants are not having any partible interest and further the plaintiff is enjoying the entire suit properties. Since the defendants are making arrangements to disturb his peaceful possession and enjoyment of the suit properties, the present suit has been instituted for the relief of perpetual injunction.
6.In the written statement filed by the first defendant it is averred that the first defendant as plaintiff has already instituted Original Suit No.95 of 2004 for the relief of partition and separate possession of his 1/3 share and the present suit is nothing, but a counter-blast to Original Suit No.95 of 2004. It is false to aver that the suit properties are the separate properties of the plaintiff. It is also equally false to aver that the plaintiff is alone enjoying all the suit properties and there is no merit in the suit and the same deserves to be dismissed.
7.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues in both the suits and after analysing the available evidence on record, has decreed the suit filed in Original Suit No.95 of 2004 and dismissed the suit filed in Original Suit No.88 of 2005 by way of passing a common Judgment and the common Judgment and decrees passed by the trial Court are being challenged in the present Appeal Suits.
8.Since common questions of law and facts are involved in both the Appeal Suits, common Judgment is pronounced.
9.Before contemplating the rival submissions made on either side, it would be more useful to narrate the following admitted facts. It is an admitted fact that the plaintiff in Original Suit No.95 of 2004 and second defendant therein are the sons of the first defendant. It is also equally an admitted fact that on 03.07.1959 a registered partition has takenplace between the first defendant, his brother and their father, wherein the present suit 'A' schedule properties have been allotted to his share. Further it is an admitted fact that suit 'B' schedule properties have been purchased in the name of the first defendant.
10.The learned counsel appearing for the appellants has contended to the effect that the suit 'A' schedule properties are the joint family properties and without utilising joint family nucleus, the first defendant has done kerosene business and out of his own earnings he purchased the suit 'B' schedule properties and therefore the suit 'B' schedule properties are his separate properties and the trial Court without considering the specific contention putforth on the side of the defendants has erroneously decreed the suit filed in Original Suit No.95 of 2004 in toto and further the trial Court has erroneously dismissed Original Suit No.88 of 2005 and therefore the common Judgment passed by the trial Court is liable to be interfered with.
11.The learned counsel appearing for the contesting respondent has contended to the effect that even though in Original Suit No.95 of 2004, on the side of the first defendant a specific plea has been raised to the effect that the suit 'B' schedule properties are his separate properties, no clinching document has been filed for the purpose of proving it and further the erstwhile Hindu joint family has had sufficient nucleus and by utilising the same, the suit 'B' schedule properties have been purchased in the name of the first defendant as joint family manager and therefore the suit 'B' schedule properties are also joint family properties and the trial Court after considering the overall evidence available on record has rightly decreed Original Suit No.95 of 2004 and rightly dismissed Original Suit No.88 of 2005 and under the said circumstances, the common Judgment passed by the Trial Court is not liable to be interfered with.
12.It is an admitted fact that during pendency of these two appeal suits, the first defendant in Original Suit No.95 of 2004/first appellant in both the appeals has passed away leaving behind him the present appellants, plaintiff in Original Suit No.95 of 2004 and also second defendant therein.
13.The specific defence putforth on the side of the first defendant is that the suit 'B' schedule properties are his separate properties and by utilising separate funds, the same have been acquired in his name in individual capacity. As rightly pointed out on the side of the contesting respondent, no document has been filed on the side of the first defendant for the purpose of proving that he has done kerosene business. Since no document has been filed on the side of the first defendant and since the suit 'A' schedule properties could have given sufficient nucleus for purchasing suit 'B' schedule properties, this Court is of the considered view that the suit 'B' schedule properties are also joint family properties.
14.As adverted to earlier, during pendency of these appeal suits, the first appellant (father) has passed away leaving behind him the present appellants, plaintiff in Original Suit No.95 of 2004 and second defendant. Since by virtue of Amendment Act, 2005, the appellants are also joint family members. The entire suit 'A' and 'B' schedule properties should be divided equally amongst parties and in that way each is entitled to get 1/6th share in the suit properties and to that effect the preliminary decree passed in Original Suit No.95 of 2004 is liable to be modified.
15.Since this Court is of the view that all the suit properties are the joint family properties, the relief sought in Original Suit No.88 of 2005 cannot be granted and the trial Court has rightly dismissed the same.
16.In fine, Appeal Suit(MD)No.21 of 2007 is allowed in part without costs. The preliminary decree of partition passed in Original Suit No.95 of 2004 by the trial Court is modified as follows:
The plaintiff and defendants (appellants) are each entitled to get 1/6th share in the suit properties and to that extent a preliminary decree of partition is passed without costs.
17.In fine, Appeal Suit(MD)No.22 of 2007 is dismissed without costs.
To
1.The Principal District Court, Thanjavur.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai..