Madras High Court
Govindaraj vs Thangaiyan on 2 August, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.(MD) No.74 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.08.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S.(MD) No.74 of 2011
Govindaraj ... Appellant/Plaintiff
-Vs-
1.Thangaiyan
2.The Superintending Engineer,
T.N.E.B.,
Pudukottai and District.
3.Malar
4.Chellammal
5.Chinnaponnu
6.Rasammal
7.Kunjupillai
8.Chandrakala
9.Kalaivanan
Cause title is amended vide Court order
dated 16.10.2020 made in C.M.P.(MD).No.
5469 of 2019 in A.S.(MD).No.74 of 2011.
... Respondents/Defendants
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https://www.mhc.tn.gov.in/judis
A.S.(MD) No.74 of 2011
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment and decree dated 11.08.2010 passed in O.S.No.147 of
2004 on the file of the Principal District Judge, Pudukottai.
For Appellant : Mr.N.Balakrishnan
For R9 : Mr.N.Sathish Babu
For R2 : Mr.B.Ramanathan
JUDGMENT
The appellant is the plaintiff. He filed a suit in O.S.No.147 of 2004 before the Principal District Judge, Pudukottai against the respondents/defendants for passing of a preliminary decree claiming 1/3rd share in the suit property and for mandatory injunction directing the 3rd defendant to restore the electricity connection to the rice mill belonging to the joint family property with costs.
2. The trial Court after trial, dismissed the suit with cost. Challenging the said judgment and decree, the plaintiff has filed the present appeal.
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3. The brief facts of the amended plaint reads as follows:
The second defendant is the elder brother of the plaintiff and the 7th defendant is his sister. The first defendant is their father and the 10 th defendant is the mother. Singara Konar and Kannusamy are the brothers of the first defendant. The second defendant is the graduate. The first defendant managed the joint family. Half of the suit properties are ancestral properties. The remaining properties were purchased by the first defendant in his name and in the name of joint family members from the joint family nucleus. Agriculture is the main avocation. The first defendant and his brothers running a rice mill in Item Nos.59 and 60 of the suit properties and the licence stands in the name of the first defendant. The said rice mill was managed by the plaintiff and the income was handed over to the defendants. The first defendant and his brothers have two buildings in Natham. During partition, the first defendant was given the rice mill and his brothers were given one house each. The marriage of the second defendant was performed _________ Page 3 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 in a grand manner and as his wife and children died, he contracted a second marriage and had three sons out of the said wedlock. The second marriage was performed in a simple manner. It was agreed that 10 sovereigns of gold jewels were given during their marriage by the defendants. The properties purchased in the name of the first defendant was allotted to him during the partition in the year 1982. The plaintiff runs the rice mill and the defendants doing agriculture. From the joint family income and the loan obtained from the Bank the defendants purchased the property in their name and the second defendant purchased the property in the name of his wife and mother
-in-law. Due to the dispute regarding the marriage of plaintiff's sister's daughter, the first defendant filed a suit in O.S.No.1106 of 19909 before the District Munsif Court, Pudukottai for permanent injunction. In the suit, the plaintiff is the second defendant and the second defendant is the first defendant. It is not true that the properties are their properties, since the first and second defendants purchased the said properties in their name. The suit properties are joint family properties purchased from joint family income. _________ Page 4 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 As per the compromise, the plaintiff has to run the rice mill for a period of one year and the second defendant has to run the rice mill next year and when the plaintiff's turn comes, the second defendant given a complaint before the Electricity Board stating that licence stands in his name and to cancel the electricity connection. Accordingly, the electricity connection was disconnected. Due to the disputes between them, the plaintiff resides in a shop premises opposite to the rice mill from the year 1990. In the year 1990 itself, the suit properties were partitioned amongst the plaintiff and the defendants and there is no debt over the joint family property. The tractor belongs to the joint family was sold for Rs.1,00,000/- and the amount was taken by the defendants 1 and 2 and also taken 1000 bags of rice. Hence, the plaintiff claimed the relief of preliminary decree for 1/3rd share in the suit property and for mandatory injunction to restore the electricity connection of the rice mill.
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4. The written statement filed by the first defendant reads as follows:
The suit filed by the plaintiff was a false one and he is not entitled for any relief as sought for. The relationship of the parties alone is admitted. It is not true that the suit properties are joint family properties. It is not true that the plaintiff is entitled for the property, which was purchased by the first defendant in the name of the second defendant. It was accepted that the second defendant was a graduate. The first defendant using his ability increased the income and has purchased the property in the name of his wife Malar. The suit is bad for non-joinder of necessary parties ie., Malar. Item Nos.59 and 60 are the individual properties of the first defendant. In relation to the same, the first defendant has filed a suit before the District Munsif Court. There was no talk for giving jewels to the daughter-in-law, who came to the family. As averred in paragraph Nos.2 and 4 of the plaint, the property inherited by the first defendant through partition with his brothers is only an _________ Page 6 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 individual property and not the joint family property. If there is a property in the name of female members, it absolutely belong to them and no claim of partition can be made against the said properties. Moreover, the wife of the second defendant comes from a wealthy family. The shreedhana given to her as gold jewels and silver articles were used for the purpose of purchasing the properties. Hence, seeking partition on those properties was not correct. There was a partition in the year 1990 and as no claim was made from the mesne profits, the suit filed by the plaintiff is not legally sustainable. Further, the Court fee was not correctly paid. As there was no particulars about the Survey number and the extent of the properties, which clearly shows that they are not the joint family properties. When the properties are not the joint family properties, the Court fee paid by the plaintiff is not correct. The properties belong to the first defendant was registered in the name of the son of the second defendant by way of Will. It is not true that the rice mill was managed by the plaintiff and others in turn. As the plaintiff has averred that the electricity connection stands in the name of the first _________ Page 7 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 defendant, which clearly reveals that the said property absolutely belongs to the first defendant. Since the suit was a forged one, the plaintiff is not entitled for any relief and as such, there is no cause of action for filing the suit. Therefore, the suit has to be dismissed with cost.
5. The written statement filed by the second defendant reads as follows:
The suit filed by the plaintiff is a false one. All the facts in the plaint are denied except the one which are specifically admitted. It is not true to say that out of joint family income, certain properties were purchased in the name of defendants 1 and 2 and other properties in the name of others. It is not true to say that joint family properties are not yet partitioned and they are in the management of the first defendant and that the rice mill in item Nos.59 and 60 was managed by the plaintiff and the income was given to the first and second defendants. Out of the total properties, in some of the properties agriculture was done and the other properties are kept _________ Page 8 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 vacant and the family was run with the rice that was yielded from the agricultural lands. As there was no agricultural income, the second defendant has done contract work, selling goats, cows and millets and by that income he purchased properties in his name and enjoyed the same. The properties in item Nos.59, 60, 78 to 84 were given to the 11th defendant by way of Will and the 11th defendant was in enjoyment of the said properties. It is not correct to include the said properties as suit properties and it is not correct to say that the defendants have accepted to give 10 sovereigns of gold jewels to the wife of the plaintiff. The properties stand in the name of the first defendant were purchased during the life time of Sivanakonar in his name and in the name of first defendant. After the death of the said Sivana Konar, the said properties were partitioned amongst the first defendant, Kannusamy, Singara Konar and it is not correct to include the said properties as suit properties in the plaint. It is not correct to state that out of the joint family income and by obtaining loan from the Land Development Bank, the second defendant has purchased the properties in the name of his _________ Page 9 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 wife and mother-in-law. The first defendant has filed the suit regarding the properties purchased by him from his own income. The plaintiff has no right to seek for partition in the properties purchased by the defendants 1 and 2 out of their income from their business. It is not true to say that due to misunderstanding, from 1990 the plaintiff resides in a portion of the rice mill and the rice mill was run on installment basis and it is true to say that the plaintiff had encroached the rice mill by force and tried to create documents in his name. It is not correct to say that the defendants have sold the tractor and get the benefit of the same. The suit has to be dismissed with costs.
6. The written statement filed by the third defendant reads as follows:
The suit is not maintainable as per law. This defendant is not a necessary party to the suit. The electricity connection in Pappampatti village stands in the name of the first defendant. For doing certain repair works, the _________ Page 10 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 said electricity connection was dis-connected by the first defendant on his application, dated 2.10.1992 and again on 4.1.1992, the electricity connection was given. This defendant has no connection with the above said acts. There is no cause of action against this defendant.
7. The written statement filed by the 11th defendant reads as follows:
The suit filed by the plaintiff is a forged and not maintainable one. The plaintiff has no right to seek for partition in respect of the suit properties. It is not true to say that they are in joint family system. The first defendant, when he was alive has given the properties in item Nos.78 to 84 to the 11th defendant, who is a minor at that time and also appointed one Chellathur Govindarasu, who was the maternal grand father of the 11th defendant and the same was registered and was in deposit. The first defendant has filed a suit in O.S.No.1106 of 1990 as the plaintiff and the second defendant had disturbed the possession and enjoyment of his _________ Page 11 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 properties. On the demise of the first defendant, the 11th defendant was in possession and enjoyment of the said properties. In the partition between the first defendant and his brothers, it is not true to say that the rice mill was allotted to the first defendant. The said rice mill was purchased out of the income of the first defendant and developed the same by constructing shops and other buildings and by obtaining necessary electricity connection. In the said property, neither the plaintiff nor others have no right in any way. A small portion adjacent to the rice mill was encroached by the plaintiff. Hence, the suit properties should not come under partition and the first defendant has already partitioned and given to the respective sharers. The suit is bad for joinder of unnecessary parties. The suit has no cause of action and the Court fee was not paid properly. Hence, the suit has to be dismissed with costs.
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8. On the basis of the above pleadings, the learned trial Judge has framed the following issues for consideration:
(i) Whether the plaintiff is entitled for partition as sought for and to what extent he is entitled to?
(ii) Whether it is correct to say that the suit scheduled properties are the joint family properties of the plaintiff and the defendants 1 and 2?
(iii) Whether the item Nos.59 and 60 of the suit schedule properties are the separate properties of the first defendant?
(iv) Whether the first defendant's wife Malar is a necessary party to the suit and whether the suit is bad for non-joinder of necessary parties?
(v) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?
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(vi) To what other relief the plaintiff is entitled to?
9. The learned trial Judge has framed the following additional issues for consideration:
(i) Whether the Will dated 13.11.1990 executed by the first defendant late Muthusamy to the 11th defendant is true and valid one?
(ii) Whether the properties in Will dated 13.11.1990 are the separate properties of Muthusamy and purchased from his own income? Whether the said Muthusamy is entitled to execute the above said Will dated 13.11.1990?
(iii) Whether the plaintiff is entitled to claim share in the properties contained in the Will dated 13.11.1990?
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(iv) Whether the properties purchased by the second defendant was from his own income and whether the plaintiff is not entitled to claim any partition in the said properties?
(v) Whether it is correct that there is no income for the joint family?
10. In order to substantiate the case, on the side of the plaintiff, two witnesses were examined as P.Ws.1 and 2 and documents were marked as Exs.A1 to A6. On the side of the defendants, five witnesses were examined as D.Ws.1 to 5 and documents were marked as Exs.B1 to B16.
11. After completing the trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the evidence available on record, dismissed the suit. Against which, the plaintiff has filed the present appeal.
_________ Page 15 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 11(i). The learned counsel for the appellant would submit that the first defendant in the suit is the father of the appellant and the second defendant is the elder brother of the appellant. The 10th defendant is the wife of the first respondent. The 11th defendant is the son of the second defendant. The first respondent/second defendant has got the ancestral property. After dividing the property from his brothers, the appellant and his father/first defendant and the second defendant in the suit constituted a Hindu Joint Family. The property allotted to the first defendant in the partition is a joint family property. The above said family is an agricultural family. The properties allotted to the first defendant in the partition are substantial in character. Therefore, the subsequent acquisition in the name of the defendants 1 and 2 have also acquired the character of joint family property. The first defendant, who is the father of the appellant and the second defendant, who is the brother of the appellant did not pursue any other avocation except agriculture. The father of the appellant in his written statement has not averred that he was doing any other business and earned _________ Page 16 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 income from it. Further, he has not averred that the first defendant and the second defendant were having any other business and earn income from it. The written statement filed by the father of the appellant was adopted by his brother, the second defendant, who is the first respondent in the appeal.
11 (ii). After the death of the father, the second defendant filed an additional written statement after a lapse of 12 years of filing the suit. For the first time, he introduced the defence that he was doing contract business besides livestock and paddy business, which is only an afterthought. The second defendant was examined as D.W.1. During the evidence, he is unable to prove that he was doing business and got separate earning other than the agricultural income. He filed a suit in O.S.No.267 of 1992 on the file of Sub Court, Pudukottai. Later, it was transferred to the District Court, Pudukottai and renumbered as O.S.No.147 of 2004. The second defendant / first respondent never produced any document to show that he was doing any other business other than agriculture.
_________ Page 17 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 11 (iii). The main case of the appellant is that the second defendant /first respondent herein was managing the joint family, since he was educated and eldest son in the family. The appellant and his father are uneducated and they are not worldly wise. The father of the appellant did not plead in his written statement that he was pursuing any other avocation other than the agriculture. He would further submit that there was sufficient joint family nucleus and the father of the appellant and his brother/first respondent had no other source of income except the agricultural income that too, from the joint family nucleus. Subsequent to the death of the father of the appellant, the 9th respondent herein was impleaded as a party, based on the alleged Will.
11 (iv). The first respondent/second defendant in his additional written statement averred that the joint family properties were partitioned even during the life time of their father and he has not substantiated the date _________ Page 18 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 of partition, mode of partition, which of the properties are allotted to the appellant, which of the properties are allotted to the first respondent/second defendant and which of the properties are allotted to his father/first defendant. The alleged Will said to have executed in favour of the 9th respondent herein / the 11th defendant in the suit is a connected one and the same was not executed by the father. Even assuming that the Will is genuine, but his father has no independent right to execute the property in favour of the 9th respondent/11th defendant. Item Nos.59 and 60 are the joint family properties. Though it stands in the name of the father, it is also a joint family property purchased from the joint family nucleus. During the partition between the father of the appellant and his two brothers, the rice mill property was allotted to the father of the appellant and his two brothers took one house each belonging to the joint family. The father of the appellant has got two brothers and they effected partition in the year 1982. There is no evidence to prove that the first respondent/the second defendant purchased the properties in the name of his father/the first defendant, out of _________ Page 19 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 his own income. The property covered under the alleged Will / Ex.B7 is only a joint family property. The father of the appellant has no interest to execute the same and also the appellant proved the suspicious surrounding circumstances and the Will has not been proved in the manner known to law. The respondents admitted that there are other grandsons also to the father of the appellant, whereas he excluded all the other grandsons and executed the Will / Ex.B7 only in favour of the 9th respondent/11th defendant, who is none other than the son of the first respondent/second defendant. The first respondent/second defendant clearly admitted the existence of joint family property and also admitted that the father has no other business except the agriculture. Though some of the properties purchased in the name of the wife of the first respondent/second defendant viz., the third respondent, absolutely the respondents have not proved that the 3rd respondent has got independent income and even the first respondent is not in a position to say that she has got independent income and out of the income, she paid the sale consideration.
_________ Page 20 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 11 (v). The trial Court failed to consider the documents marked by the appellant under Exs.A1 to A6, A11 and A12, which clearly shows that there were ancestral properties and also the other properties purchased in the name of the first and second respondents viz., the father and brother of the appellant also joint family properties. In the Chit / Ex.A1, the name of the father of the appellant alone mentioned. It is a settled preposition of law that if it is a joint family property, any mutation taken place by anyone of the members of the joint family, it cannot be stated that it is the property of the person on whose name the mutation has been taken place. Further, the father of the appellant is the elder member of the joint family, who is a Kartha. The first respondent is the educated person, worldly wise person, who is acting as the Manager of the Joint Family. If any property stands in the name of Kartha or the Manager of the joint family, unless it is proved that apart from the joint family nucleus, they have got any independent business or independent source to purchase those properties in their name _________ Page 21 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 independently. Once the appellant proved that there was an existence of joint family property, from the joint family nucleus and the person, who has stated that he has no other business and no other income, it can be presumed that the properties purchased in the individual name of the joint family members also is a joint family property. Therefore, the trial Court failed to consider all the aspects, especially the admission given by the first respondent, during the cross examination, dismissed the suit that the appellant has not established that the appellant and the defendants 1 and 2 are the members of the joint family and they have got the nucleus from the joint family property.
11 (vi). It is settled preposition of law that admission is a best piece of evidence and admitted fact need not be proved and once the appellant established that there is a joint family property and there is a joint family nucleus, then, it is for the respondents to prove that they have got the independent source to purchase the property stands in their individual name. _________ Page 22 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 Further, the 9th respondent has not proved the execution of the Will alleged to have executed by his grandfather viz., the first defendant and once the Will is not proved, both the appellant and the first respondent are entitled to get ½ share and the Will not bind on the appellant and at the best, the father of the appellant can execute a Will in respect of 1/3rd share and not more than that. Therefore, the appeal is liable to be allowed and the judgment and decree passed by the trial Court are liable to be set aside.
11 (vii). In support of his submission, the learned counsel for the appellant has relied on the following decisions:
(i) in the case of Kulandhaiyaa Sethurayar (died) and others vs. Sivakumar.K. reported in 2017(1) TLNJ 36 (Civil);
(ii) in the case of K.Ramalingam v. K.Raghuraman reported in 2013 (1) MWN (Civil) 705;
(iii) in the case of Muthusamy v. S.Kaliammal reported in 2017 (2) MWN (Civil) 71;
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(iv) in the case of E.Siva vs. E.Neelappa Chowdary and others reported in 2010 (1) TLT 146;
(v) in the case of Chinniya Gounder (died) v. Mariappan reported in 2013 (3) MWN (Civil) 271;
(vi) in the case of S.V.Palanivelu vs. S.V.Gandhimathi and another reported in 2018 (1) MWN (Civil) 96;
(vii) in the case of M.Rajeswari v. M.Ganesan reported in 2018 (1) CTC 283;
(vii) in the case of Easwaran v. Marimuthu reported in 2022 (2) MWN (Civil) 361.
12. The learned counsel for the respondents would submit that the suit properties are not joint family properties. The appellant is not the member of the joint family. Whatever the properties stand in the name of the first and second defendants, they are individual properties of them and they have not been purchased out of the nucleus of the joint family. Since there _________ Page 24 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 was no joint family, the property stands in the name of the third respondent is absolute property of the third respondent. It is not a joint family property and the same was not purchased out of the joint family nucleus. The plaint has not disclosed the nature and character of the properties. The appellant has not established that what are the joint family properties and has not established that there was a surplus nucleus or income from those properties and out of the surplus income derived, the properties stand in the name of the father of the appellant and the brother of the appellant were purchased. In the absence of the same, the appellant is not entitled to get any relief as sought for in the plaint. Further, the father of the appellant executed a Will in favour of the 9th respondent, who is the grandson of the first defendant. In order to prove the same, P.W.2, one of the attestors to the document was examined and proved the Will. The probator of the Will was examined and he has substantiated their claim. Therefore, the trial Court found that there was no ancestral property and absolutely the appellant has not proved the ancestral property and out of the ancestral nucleus, all the suit properties _________ Page 25 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 were purchased and also the Will was executed in a sound disposing state of mind and the appellant has not established the suspicious circumstances. Therefore, the appeal has to be dismissed.
13. Heard the learned counsel for the appellant, the learned counsel for the respondents and perused the records.
14. The relationship of the parties are not in dispute. The appellant has filed the suit for partition claiming 1/3rd share. According to the appellant, the appellant and the first respondent are the brothers and the first defendant is the father of the appellant, who died during the pendency of the suit. Therefore, he has not been impleaded in the appeal. The appellant, the first defendant, who is the father and the second defendant, who is the brother are coparcener. Therefore, they are entitled to 1/3rd share in the suit properties.
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15. The specific case of the respondents is that though the second respondent is the Electricity Department, they clearly stated that since the property originally stood in the name of the father of the appellant, who had given a letter for suspension of service connection for repairing the property and therefore, they disconnected the electricity connection. The appellant raised objections. Subsequently, at the request of the father of the appellant, they restored it. Therefore, they are not the necessary parties. Even otherwise, the relief against the second respondent become infructuous. Therefore, no relief can be granted against the second respondent. The case of the first respondent is that there was no joint family ancestral property. Item Nos.59 and 60 stand in the name of the father of the appellant as self acquired properties and some of the properties purchased in the name of the first respondent. Since there was no income from the joint family properties, he left the family and he was doing a separate business and earn separately and purchased the property in his name as his own self acquired property and some of the properties purchased in the name of his wife, which is also _________ Page 27 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 a self acquired property and not purchased out of the joint family nucleus. Subsequently, during the life time of his father, he executed a Will in favour of the 9th respondent. Therefore, the appellant is not entitled to any share in any of the properties, because none of the properties shown in the plaint schedule are either ancestral properties or purchased from the ancestral nucleus.
16. In order to substantiate the case of the appellant, on the side of the appellant, two witnesses were examined. Though the appellant has stated that there was an ancestral property, he is not in a position to specify what properties are ancestral properties derived by his father and what are the properties purchased out of the nucleus of the joint family property or income from the joint family property. The appellant has clearly stated that he is an illiterate and the first respondent is the elder brother, who is acting as a Manager and he is a worldly wise person and the father also an illiterate person. Taking advantage of their illiterateness, the first respondent _________ Page 28 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 purchased the property in his name. Though the properties stand in the individual name of any of the coparcener and if the properties purchased out of the joint family nucleus, irrespective of the names stands in the revenue records, all the properties are only joint family properties and all the coparcener are entitled for partition and they have got shares. In this case, since the appellant is not in a position to give the particulars, does not mean there was no ancestral property at all. It is a well settled proposition of law that in a suit for partition, viz -a- viz the defendant is the plaintiff and the plaintiff is the defendant. Therefore, either party can be treated as the plaintiff and they have to prove their respective stands. The proposition is that the plaintiff has to prove his case on his own strength and he cannot take advantage of the loopholes left by the plaintiff and it will not be applicable to the suit for partition, especially beyond the coparcener.
17. Since the appellant and the respondents are brothers, when the appellant filed the suit against the first respondent and his father stating that _________ Page 29 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 it is an ancestral property and moreover, though in the written statement filed by the father of the appellant and the same was adopted by the first respondent, they have not stated anything, simply denied that there was no ancestral property and all the properties stand in the name of the father and the first respondent are the separate property. But, they have not stated anything about the separate income regarding the purchasing of the properties stand in their name. Subsequently, after the death of the father, they introduced the Will / Ex.B7 and they also impleaded the probator of the Will. Subsequently, the plaint was amended and it was posted for written statement. At that time, taking advantage of the same, he filed additional written statement. At that time, the first respondent introduced that he has got a contract business and other business and he got an independent income and he purchased the property and he left the family very long back and live separately and out of his own income, he purchased the property in the name of his father and also his wife.
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18. A careful reading of the evidence especially during the cross - examination, the first respondent admitted that ''the first respondent was examined as D.W.1 and he has admitted during the cross-examination regarding the existence of the ancestral property” which reads as follows:
“vd; jfg;gdhUld; gpwe;jth;fs; 2 jk;gpfs;. vd;
jfg;gdhUf;Fk; mth;fSf;Fk; ghfk; Mfptpl;lJ. vd; jfg;gdhh; kw;Wk; mthpd; rBfhjuh;fs; Tl;lhf nUe;jBghJ iu!;kpy;, kw;Wk; nuz;Lkho tPL nUe;jJ vd;why; rhl;rp 2 Xl;LtPLk; Brh;e;J nUe;jjhf brhd;dhh;. =kho tPL 2Ia[k; MSf;bfhU rpj;jg;ghtpw;F bfhLj;Jtpl;lhh;fs;. iu!;kpy; vd; jfg;gdhUf;F bfhLf;fg;gl;lJ vd;why; mij jd; jfg;gdhh; jdpahf rk;ghjpj;jJ vd;whh.; Xl;L tPL 2k; vd; jfg;gdhUf;F bfhLf;fg;gl;lJ. fpuhkj;jpy; ghfk;gphpj;jhy; Kj;j kfDf;F bfhq;rk; mjpfk; bfhLg;ghh;fs; vd;why; bjhpahJ. nisath;fs; 2BgUf;Fk;kho tPLbfhLj;Jtpl;L vd; jfg;gdhUf;F 2 Xl;L tPL bfhLj;jhh;fs;. vd; mg;gh Bghpy; cs;s brhj;J, vd;Bghpy; cs;s brhj;Jfspy; vd; mg;gh jdpahf rk;ghjpj;jJ 6 1/2 Vf;fh;. vd; jfg;gdhUf;F g{[h;tPfkhfr; brhe;jkhdJ Rkhh; 10 Vf;fh;. ehd; fpuak; thA;fpaJ Rkhh; 5 1/2 Vf;fh;. Vdf;F g{h;tPf brhj;J 8 my;yJ 8 1/2½ Vf;fh; nUf;Fk;. Vd;kidtp Bghpy; cs;s brhj;J fpiuakh my;yJ g{h;tPfkhf my;yJ vt;tst[ vd;W vdf;F tptuk; bjhpahJ. Vd;kidtp vd;Dld; jhd; cs;shh;. mth; _________ Page 31 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 brhj;ij mth; Ms;itj;J ghh;j;Jf;bfhs;fpwhh;. Vdf;Fk; mjw;Fk; rk;ge;jk; ny;iy. KGtut[ bryita[k; mtBu ghh;j;Jf;bfhs;thh;;. vd;jk;gp vt;tst[ fpiuak; thA;fp cs;shh; vd;w tptuk; vdf;Fj; bjhpahJ. vd;jk;gpf;F fpiuar; brhj;Jk; ny;iy. g{h;tPfr;brhj;Jk; ny;iy vd;why; bjhpahJ. gpwF rhl;rp g{h;tPfr;brhj;J vd; jk;gpf;F Rkhh; 8 Vf;fh; nUf;Fk;. XUrkak; fzf;F tHf;if ghh;g;gjw;F fzf;fg;gps;is epakpf;fg;gl;lhh. gpwF rhl;rp ny;iy vd;W Twpdhh;. iu!;kpy;yYf;F kl;Ld; vd; jfg;gdhh; fzf;fg;gps;is itj;jpUe;jhh. Vj;jid tUlk; itj;J nUe;jhh; vd;W vdf;F epidf;ftpy;iy”.
So, it is clearly stated that they have got the ancestral property, but the first respondent has not proved that there was a division of partition between the appellant, first respondent and his father.
19. Under such circumstances, as stated by the appellant he is an illiterate and the appellant is an educated and worldly wise person. Even when his father is alive, they filed the written statement in the year 1993 and in that, he has not denied that there was no joint family and there was no _________ Page 32 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 joint family property and all the properties purchased stand in the name of the first defendant and the second defendant was also self acquired property and the appellant is not entitled to any share. The said statement was adopted by the first respondent herein. In the last line, it is stated that the statement is adopted by the other defendants also. Though the statement filed and signed by the first defendant, adopted by the other defendants. The Advocate for the defendants also signed the same. Therefore, in the original written statement, neither the first defendant nor the second defendant has stated that they have got independent business, especially the first respondent herein has not stated that he has got contract business other than the agricultural business, out of which he purchased the property. He has also not produced any documents. The above reading of the deposition during the cross-examination of the first respondent/second defendant shows that the ancestral property was admitted and also he has stated that he also got ancestral property.
_________ Page 33 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011
20. The Junior Assistant was examined as D.W.2. But, he has not stated anything about the Will and only he brought the Will from the Registration Office. Registered Will has to be proved in the manner known to law. One of the attestors to the Will was examined as D.W.3. During the cross-examination, he has not stated anything about the requirement of attestation and other attestors also not examined in this case. More particularly, the alleged Will said to have been executed in the year 1990. However, in the original written statement, the first defendant in the suit has not spoken anything about the execution of the Will. The first respondent, who was arrayed as second defendant in the suit also not whispered and only after 10 years, the propounder of the Will/the 9 th respondent herein was examined as D.W.4. The second defendant has stated about the Will only at the time of filing the additional written statement in the year 2004. However, the alleged Will said to have been executed in the year 1990. But the testator filed the written statement in the year 1993. Though the first respondent, who is the father of the 9th respondent residing in the same roof, _________ Page 34 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 till 2004 they have not whispered about the Will.
21. Though it is a settled preposition of law that mere existence of ancestral property itself is not sufficient and there must be a surplus income and if there was a surplus income, they purchase the property in the name of anyone of the members of the joint family, the said property also would be treated as an ancestral property. In this case, the appellant especially stated that they are the agricultural family and they got only the agricultural income. As already stated, the first respondent admitted that the father has got 10 acres ancestral property and the first respondent has got 8 acres ancestral property. Though he has stated that his brother has got 8 acres, there is no evidence. The father of the appellant divided the property from his brothers and subsequently the appellant and the first respondent and their father constituted the joint family. Subsequently, they purchased the property in the name of his father, the first respondent and also the wife of the first respondent/the third respondent herein. The first respondent is not _________ Page 35 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 in a position to say whether it is an ancestral property or self acquired property. The first and third respondents are not able to establish that they have got the independent source and they have got independent business and they got income from the self earning to purchase all those properties. Therefore, it is a presumption that there was an ancestral nucleus and it is a presumption that out of the income from the joint family property, they have purchased properties in the name of joint family members, the said properties also deemed to be the joint family properties. Then, it is for the persons on whose name the properties purchased have to establish that the purchase was out of the self earning or independent income. Therefore, in this case, as already stated, in a suit for partition, the first respondent also equally responsible to establish his case. Though initially he has stated that no ancestral property and they are the self acquired properties, whereas, during the cross-examination, he also clearly admitted that there were ancestral properties and the father has got 10 acres and he got 8 acres. Though he has stated that other properties were purchased out of the _________ Page 36 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 independent income, he has not established that what are the other income except agricultural income and he has not filed the documents purchased in his name and has already stated he has not substantiated about the independent source of income other than the agricultural income.
22. Therefore, this Court finds that it is a joint family property. The appellant is entitled to 1/3rd share, the first respondent is entitled to 1/3rd share and his father is entitled to 1/3rd share. Though the respondents have stated that out of the properties stands, the first defendant has executed a registered Will in respect of the properties stands in his name to the 9th respondent. A reading of the entire materials shows that the Will said to have been executed in the year 1990, whereas, the first defendant, the father of the appellant filed the written statement in the year 1993. The second defendant, who is none other than the first respondent herein have adopted the same. But they have not revealed anything about the execution of the Will in favour of the 9th respondent. After filing of the written statement, the _________ Page 37 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 father died and subsequently the 9th defendant has stated that the grand father said to have executed a Will on 13.11.1990. As already admitted that the father of the appellant has got other grandsons also. Further, D.W.2 is only an Assistant in the Registration Office and even the Registrar was not summoned and examined and the attestors signed while registering the Will. P.W.3 is one of the attestors to the Will and though he has stated that he was present at that time, he has not stated anything abut the sound disposing state of mind.
23. A combined reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, Will has got to be attested by two attestors and the Will has got to be proved at least by examining one of the attestors and the attestor should speak not only about the attestation in that document, he should also say about the fact that at the time of executing the Will or signing the Will, he was sound disposing state of mind. Further, on a reading of the evidence of P.W.3, this Court finds that he has not _________ Page 38 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 specified the factum of proof of the Will. Even otherwise, the grand father of the 9th respondent has no right to execute the Will in respect of entire property. All the properties stands in his name, only he has got 1/3 rd share. The written statement filed by the first defendant originally adopted by the second defendant and also subsequently additional written statement filed by the first respondent/second defendant in the suit and the written statement filed by the 9th respondent/ 11th defendant in the suit and the evidence of P.Ws.2 and 3 are being attestator shows that the Will has not been proved in the manner known to law. The trial Court failed to appreciate the pleadings and original stand taken by the father of the appellant/the first defendant, brother of the appellant as the second defendant also legally liable to be established, since they are the parties in the suit. More particularly, the first respondent admitted during the cross- examination the existence of ancestral property and he has not established that there is no income from that property. Therefore, they improved their case stage by stage. This fact has not been considered by the trial Court. _________ Page 39 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 Since this Court is an appellate Court and the fact finding Court, it has to re- appreciate the entire evidence and to give an independent finding. This Court has re-appreciated the entire evidence and has come to the conclusion that the admission made by the first respondent during the cross- examination that there was ancestral properties and admitted that his father was in possession of 10 acres and he got 8 acres and his brother has got 8 acres. However, he is not in a position to say that how his father got 10 acres separately and he got more than 8 acres and his brother got 8 acres. His brother also separated from the ancestral property and he got a share in the ancestral property. Therefore, in the absence of the same, the defence taken by the first respondent is not acceptable.
24. It is a settled proposition of law that the admission is a best piece of evidence. The admitted fact need not be proved. Then, once the first respondent admitted that there was an ancestral property and as such, it is for him to substantiate that there is no income at all from the ancestral _________ Page 40 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 property and apart from the agriculture, he has got independent business or source of income to purchase the property stands in his name, his father's name and his wife's name. Under such circumstances, this Court finds that the judgment of the trial Court warrants interference.
25. In the result, the Appeal Suit is allowed and the judgment and decree passed by the Principal District Judge, Pudukottai in O.S.No.147 of 2004, dated 11.08.2010 are set aside. Though at the time of filing the suit, the father of the appellant/the first defendant in the suit was alive and the appellant/plaintiff claimed 1/3rd share, during the pendency of the suit, the father of the appellant died and this Court disbelieve the Will. Therefore, both the appellant and the first respondent are entitled to get ½ share each in the suit properties.
26. As already stated that the first respondent has not proved that his wife got independent income. Therefore, whatever the property that _________ Page 41 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 stands in the name of the third respondent is not absolute and separate property of her own and it is also an ancestral property. Therefore, the appellant is entitled to get ½ share in all the properties, which are treated as ancestral property.
27. In a recent judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549, Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others, it has been held as follows:-
''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial _________ Page 42 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.''
28. As per the above latest decision of the Hon'ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceedings after passing the preliminary decree. Therefore, the trial Court is directed to initiate suo motu final decree proceedings and pass a final decree. Since already the suit is pending from 2002, all the final decree proceedings shall be completed within a period of six months from the date of its initiation. Registry is directed to send the original records to the trial Court concerned along with the judgment and decree made in this appeal within a period of fifteen days _________ Page 43 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 from the date of this judgment.
29. Considering the nature of the case, facts and circumstances of the case and the relationship between the parties, there will be no order as to costs.
02.08.2022 Index : Yes / No Speaking Order : Yes / No akv To
1. The Principal District Judge, Pudukottai.
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
_________ Page 44 of 45 https://www.mhc.tn.gov.in/judis A.S.(MD) No.74 of 2011 P.VELMURUGAN,J.
akv A.S.(MD) No.74 of 2011 02.08.2022 _________ Page 45 of 45 https://www.mhc.tn.gov.in/judis