Madras High Court
K.S.Chandrasekaran vs Mrs.Maragathammal on 13 August, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 13.8.2013
CORAM
THE HON'BLE MR.JUSTICE R.S.RAMANATHAN
A.S. No.39 of 1995
1. K.S.Chandrasekaran
2. K.S.Vijayalakshmi
3. K.S.Thamaraichelvi
4. K.S.Sampath Kumar
5. K.S.Shiyamalatha
(Appellants 3 to 5 are declared
as major and guardian discharged
vide order dated 5.12.1991
in C.M.P.No.14174 of 1991) .. Appellants
vs.
1. Mrs.Maragathammal
2. Mrs.Saradammal
3. Varadarajan (died)
4. K.S.Pandurangan
5. K.S.Jotheeswari
6. S.Kuppuraj
7. T.Chakkaravarthi
8. S.Kuppuraj
9. S.Alamelu Ammal
10. Kothandarama Reddiar
11. Krishnaveni Ammal
12. Thatchayini
13. Sethuraman
14. Koteeswari
15. Kalyanasundaram
16. Santhanavel
17. Kannan
(R17 declared as major and
guardian discharged vide order
dated 5.12.1991 in
C.M.P.No.14175 of 1991)
18. Tmt.Buvaneswari
19. Varalakshmi
20. Ammu
21. Babby
22. Nandhini
23. Saravanan
(Minor rep by mother and
guardian Buvaneswari)
(RR 18 to 23 are impleaded
as LRs of the deceased R3
vide order dated 29.6.2000
in C.M.P.No.7786/96) .. Respondents
Appeal against the judgment and decree dated 1.8.1989 made in O.S.No.225 of 1976 on the file of the Additional Sub Judge, Vellore, North Arcot District.
For appellants : Mr.R.G.Annamalai
For R10 : Mrs.P.Veena for
Mr.T.R.Rajaraman
For RR4, 7 to 17: No appearance.
JUDGMENT
Plaintiffs in O.S.No.225 of 1976 on the file of the Additional Sub Judge, Vellore are the appellants.
2. The plaintiffs filed the suit for partition claiming 5/9 share in the suit A schedule properties and the Trial Court passed a preliminary decree in respect of items 6 to 10 of A schedule property and rejected the claim of the plaintiffs in respect of items 11 to 13. Aggrieved by the disallowed portions, this first appeal is filed.
3. The case of the plaintiffs as seen from the plaint is as follows:-
One K.K.Subramania Mudaliar had two wives viz., Maragathammal, the first defendant and Sarada Ammal, the second defendant. The plaintiffs are the children of K.K.Subramania Mudaliar through his first wife Maragadhammal, the first defendant and through his second wife Sarada Ammal, the second defendant. K.K.Subramania Mudaliar had three other children viz., defendants 3 to 5. The properties viz., items 1 to 10 of the A schedule were purchased by the deceased Subramania Mudaliar out of his own funds and items 11 to 13 were purchased in the name of the third defendant by the father K.K.Subramania Mudaliar and the third defendant had no source of income on the date of purchase of those properties and items 11 to 13 were purchased in the name of the third defendant as benami and therefore, those properties also belonged to the father Subramania Mudaliar and Subramania Mudaliar died intestate on 21.1.1969 and therefore, the plaintiffs are entitled to 5/9 share in the suit properties. The sale by the third defendant in respect of items 11 to 13 to defendants 7 to 9 are not valid and defendants 7 to 9 cannot claim any independent right to those properties and the sale deeds were sham and nominal and no consideration was passed and they are name lenders of the third defendant. It is further stated that the ninth defendant sold item 11 to the tenth defendant and the tenth defendant, in turn, sold the same to the 11th defendant and those sale deeds are also not binding on the plaintiffs. It is further stated that the sixth defendant brought the suit properties items 1 to 5 in execution of the decree made against defendants 2 to 5 on the basis of the promissory note executed by defendants 2 to 5 and those debts are not binding on the plaintiffs and those debts were not incurred for family necessities and therefore, the purchase of items 1 to 5 by Subramania Mudaliar pursuant to the decree passed in O.S.No.22 of 1972 against defendants 2 to 5 is not binding on the plaintiffs and therefore, those properties are also available for partition. The sixth defendant died pending suit and therefore, defendants 12 to 18 were impleaded as legal representatives.
4. Defendants 1 to 3, 5 and 7 to 10 remained ex parte. The fourth defendant filed statement supporting the case of the plaintiffs. The sixth defendant filed statement contending that loan was incurred by defendants 2 to 4 for the family business and the loan was not paid and therefore, he filed a suit and obtained a decree against defendants 2 to 4 and pursuant to the decree, the properties were brought to sale in court auction and he purchased the properties viz., items 1 to 5 and therefore, the sales are binding on the plaintiffs and therefore, in respect of items 1 to 5, the plaintiffs cannot claim any right over the properties. He filed additional statement contending that Income Tax Department proceeded against the estate of late Subramania Mudaliar for non-payment of Income Tax dues amounting to Rs.15,747/= and they also filed E.A.No.894 of 1974 in E.P.No.43 of 1973 in O.S.No.22 of 1972 to enforce the charge against the properties to realise the tax payable by late Subramania Mudaliar and that application was dismissed and they filed the appeal in C.M.A.No.730 of 1976 before the High Court and that appeal was allowed and on the assurance given by the sixth defendant agreeing to pay the arrears of tax payable by Subramania Mudaliar, the Income Tax authorities did not pursue the matter and the amount was paid by the sixth defendant and therefore, the Income Tax liability payable by Subramania Mudaliar was paid by the sixth defendant and therefore, the plaintiffs are liable to pay their proportionate share in the event of sales in respect of items 1 to 5 are held to be not binding on the plaintiffs.
5. The 11th defendant filed statement contending that he purchased the property for a valuable consideration and he is a bona fide purchaser and therefore, his property cannot be brought to partition.
6. The plaintiffs filed reply statement contending that the 11th defendant purchased the property during the pendency of the suit and therefore, the sale is hit by doctrine of lis pendens and the property is also available for partition.
7. On the basis of the above pleadings, the following issues were framed:-
"1. Whether the suit properties are the self-acquired properties of Subramania Mudaliar or joint family properties?
2. Whether items 11 to 13 are separate properties of the third defendant?
3. Whether the sale of items 1 to 5 are valid and binding on the plaintiffs?
4. Whether the sales in respect of items 11 to 13 are not valid?
5. Whether defendants 12 to 18 are entitled to adjust their share of properties in the final decree?
6. Whether the sale of item 11 is hit by lis pendens?
7. To what relief, the plaintiffs are entitled?"
8. The first plaintiff examined himself as PW1 and examined another witness and marked 13 documents and on the side of the defendants, fourth defendant examined himself as DW1 and also examined three more witnesses and marked 23 documents.
9. The Trial Court tried issues 1 and 2 together and held that items 1 to 10 are the self-acquired properties of Subramania Mudaliar and items 11 to 13 are the separate properties of the third defendant. The Trial Court tried issues 3 and 5 together and held that sale of items 1 to 5 through court auction is valid and is binding on the plaintiffs and therefore, there is no need for defendants 12 to 18 to claim equity in respect of those properties. Issue No.4 was dealt with separately and held that sale of items 11 to 13 are valid sales. The Trial Court answered issue No.6 in favour of the 11th defendant and held that the sale was not affected by lis pendens and issue No.7 was answered by holding that the plaintiffs are entitled to 5/9 share in items 6 to 10 and in respect of other items, the plaintiffs are not entitled to any share and dismissed the suit in respect of items 1 to 5 and 11 to 13. Aggrieved by the disallowed portion, this appeal is filed by the plaintiffs.
10. Learned counsel for the appellant submitted that the Trial Court, having held that the properties were self-acquired properties of Subramania Mudaliar, ought to have held that the third defendant was not having income and no proof was adduced by the third defendant or other defendants that the third defendant was having independent income to purchase items 11 to 13 in his name and in the absence of any evidence adduced by the third defendant or other defendants, the Trial Court ought to have held that the third defendant was only a benami in respect of items 1 to 13 and the consideration was paid by the father K.K.Subramania Mudaliar. He was admittedly, a Forest Contractor and was doing business and therefore, the Trial Court ought to have held that items 11 to 13 were also properties of Subramania Mudaliar in which the plaintiffs are entitled to have a share and the sale of items 11 to 13 to defendants 7 to 9 by the third defendant are not valid and binding on the plaintiffs. He further submitted that admittedly, loan was availed by defendants 2 to 4 from the sixth defendant as seen from the pro note Ex.B9 and also the plaint in O.S.No.22 of 1972, Ex.B10 and therefore, the sale of properties pursuant to the decree passed in O.S.No.22 of 1972 will not bind the plaintiffs as the loan was not incurred for the family purposes and admittedly, the first plaintiff and the first defendant were not parties to the pro note and to the suit and therefore, the court below erred in holding that items 1 to 5 were also not available for partition. He further submitted that the third defendant is the competent person to speak about his income and conveniently he remained ex parte alongwith defendants 1, 2 and 5 and therefore, having regard to the fact that Subramania Mudaliar was having Forest Contract and was doing business, and the third defendant was not having any income and the third defendant was born only on 25.4.1942 as per Ex.B5 and therefore, in the year 1965, when items 11 to 13 were purchased in the name of the third defendant, he could not have provided the consideration and hence, the Trial Court ought not to have held that items 11 to 13 are the separate properties of the third defendant and ought not to have held that those properties belonged to Subramania Mudaliar and the plaintiffs are entitled to partition and ought to have decreed the suit in entirety as prayed for.
11. On the other hand, the learned counsel for the tenth respondent submitted that the Trial Court rightly held that when the properties were not joint family properties, any property purchased in the name of a son cannot be considered as property of the father or the joint family members and the third defendant was having independent income and that was also evident from the sale deeds executed by the third defendant and therefore, it cannot be contended that items 11 to 13 were not the separate properties of the third defendant and the third defendant had no source of income at the time of purchase of those properties.
12. Considering the submissions of both the counsel, the following points arise for consideration in this appeal:-
"1. Whether items 11 to 13 are the separate properties of the third defendant or joint family properties of the plaintiffs and defendants 1 to 4?
2. Whether the plaintiffs are entitled to claim any share in items 11 to 13?
3. Whether the plaintiffs are entitled to claim any share in items 1 to 5?"
13. No doubt, the third defendant remained ex parte and therefore, we will have to see whether the properties purchased in the name of the third defendant were his separate properties or purchased in his name by his father Subramania Mudaliar. The main contention of the appellants was that as per Ex.B5, the third defendant was born in 1942 and therefore, at the time of purchase viz., on 12.5.1965, he was only 23 years old and therefore, he would not have provided consideration for the purchase of those properties and the consideration must have been provided by the father who was admittedly, a Forest Contractor and was doing business. When the plaintiff claims that the properties standing in the name of one of the sons belonged to the father and the son had no resource to prove consideration for the purchase of the properties in his name and also contended that all the properties were the separate properties of the father, it is for them to prove the same.
14. It is seen from the plaint that the main contention of the plaintiffs was that the properties were the separate properties of Subramania Mudaliar. Under Ex.A3, dated 12.5.1965, four plots were purchased in the name of the third defendant and those are items 11 to 13. In Ex.A3, the third defendant was described as businessman (Varthakam). Admittedly, Subramania Mudaliar died on 21.1.1969 and as per Ex.B3, dated 6.3.1968, the third defendant executed surety bond in favour of one Ponnambala Raja for a sum of Rs.20,000/=. In Ex.B3, he was described as businessman. Therefore, even during the life time of his father, he has executed a surety deed for the loans availed by him. Further, under Ex.A4 and A6, he described himself as Forest Contractor. Under Ex.A9, dated 5.7.1963, he purchased one property and that property was not included in the suit and in that sale deed also, he described himself as the businessman and therefore, under Ex.B3 and A9, it has been made clear that during the life time of his father, he was doing business and he purchased the property in his own name. Therefore, under Ex.A3, when he purchased the properties which are only vacant sites, it can be presumed that the consideration must have been provided by him and they are his separate properties. Ex.B8 dated 4.12.1972 is the notice sent by the income tax authorities to the third defendant directing him to pay the income tax and that would prove that the third defendant was having independent income in the year 1972 and considering all these aspects, it was rightly held that items 11 to 13 were separate properties of the third defendant. The Trial Court, considering these aspects rightly held that items 11 to 13 were purchased by third defendant out of his personal income and they were his separate properties and the plaintiffs cannot claim any share in respect of the properties and I do not find any infirmity in respect of those findings. Hence, points 1 and 2 are answered against the appellant and I hold that items 11 to 13 were separate properties of the third defendant and they were not joint family properties of the plaintiffs and they cannot claim any share in those properties.
15. As regards items 1 to 5, the appellants may be right in contending that the suit in O.S.No.22 of 1972 filed by the sixth defendant against defendants 2 to 4 in respect of promissory note executed by them and the subsequent sale of items 1 to 5 pursuant to the decree passed against defendants 2 to 4 were not binding on them. It is seen from Ex.B9 that the pro note was executed by defendants 2 to 4 for their family necessities and for their forest contract business. Admittedly, Subramania Mudaliar had two wives and through his second wife, Saradammal, he had three children viz., defendants 3 to 5 and the pro note was executed by defendants 2 to 4. The plaintiffs are the children of Subramania Mudaliar through the first defendant and they were not parties to the pro note. Further, the pro note was executed on 24.10.1971, after the death of Subramania Mudaliar and there was no evidence adduced by the defendants that even after the death of Subramania Mudaliar, the children of Subramania Mudaliar through both his wives lived together under the same roof. Therefore, the loan was incurred by defendants 2 to 4 for their personal business and for their family necessities and the suit was filed to enforce that loan and the properties viz., items 1 to 5 were brought to sale pursuant to the decree in O.S.No.22 of 1972 and therefore, those sales cannot be binding on the plaintiffs. Nevertheless, it is admitted by defendants 12 to 18 that that the Income Tax authorities proceeded against the properties of Subramania Mudaliar for the tax arrears payable by him by filing E.A.No.894 of 1974 in E.P.No.43 of 1973 in O.S.No.22 of 1972 as evidenced by Ex.A13. That application was dismissed and they filed A.A.O.No.730 of 1976 before this court as evidenced by Ex.B4 and in E.A.No.894 of 1974, defendants 2 to 4 and the sixth defendant were parties and during the appeal before this court, the sixth defendant agreed to discharge the liability of Subramania Mudaliar and that was recorded and later, that amount was paid by the sixth defendant and the properties were brought to sale in execution of the decree in O.S.No.22 of 1972 and items 1 to 5 were purchased by the decree holder the sixth defendant. Therefore, the plaintiffs are bound to pay their respective shares in respect of the Income Tax arrears paid by the sixth defendant and but for the payment of income tax arrears by the sixth defendant, items 1 to 5 must have been brought to sale by the income tax authorities. Therefore, having regard to the fact that income tax arrears of Subramania Mudaliar was paid by the sixth defendant and thereafter, he purchased items 1 to 5 pursuant to the execution of decree through court auction, even though the decree passed in O.S.No.22 of 1972 was not binding on the plaintiffs, sale of items 1 to 5 are binding on the plaintiffs as the sixth defendant discharged the income tax arrears payable by Subramania Mudaliar and thereby purchased the properties pursuant to the decree passed in his favour. Therefore, the third point is also answered against the appellants and the Trial Court considering all these aspects, rightly held that the plaintiffs are not entitled to claim partition in respect of items 1 to 5 and 11 to 13 and there is no infirmity in the finding of the Trial Court.
In the result, the appeal is dismissed and the judgment and decree of the Trial Court are confirmed.
ssk.
To The Additional Sub Judge, Vellore, North Arcot District