Madras High Court
Jagathambal vs Dharmaraj on 4 March, 2011
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2011 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.791 of 2010 and S.A.(MD)No.792 of 2010 and M.P.(MD) NO.1 of 2010 1.Jagathambal 2.Durai @ Durairaj .. Appelllants in both SAs Vs. 1.Dharmaraj 2.Punniyamoorthy .. Respondents in both SAs PRAYER in S.A.(MD) No.791 of 2010 Second Appeal filed under Section 100 of CPC, against the judgment and decree dated 30.04.2010 made in A.S.No.49/2009 on the file of the Additional Subordinate Judge, Thanjavur, confirming the judgment and the decree dt.19.11.2007 in O.S.No.96/2001 on the file of the District Munsif, Thanjavur. PRAYER in S.A.(MD) No.792 of 2010 Second Appeal filed under Section 100 of CPC, against the judgment and decree dated 30.04.2010 made in A.S.No.1/2009 on the file of the Additional Subordinate Judge, Thanjavur, reversing the judgment and the decree dt.19.11.2007 in O.S.No.96/2001 on the file of the District Munsif, Thanjavur. !For Appellants ... Mr.V.Chandrasekar ^For Respondents... Mr.R.Vijayakumar for Mr.G.Karnan :COMMON JUDGMENT
S.A.(MD) No.791 of 2010 has been filed against the decree of the lower appellate court, namely the Additional Subordinate Judge, Thanjavur, dated 30.04.2010 made in A.S.No.49/2009. S.A.(MD) No.792/2010 has been filed against the decree dated 30.04.2010 passed by the said lower appellate court in A.S.No.1 of 2009.
2. Both the appeals before the lower appellate court had been filed against the portions of the decree dated 19.11.2007 passed by the trial court, namely the Court of the District Munsif, Thanjavur, in one and the same suit, namely O.S.No.96/2001. The respondents in both the second appeals were the plaintiffs in the Original Suit and the appellants in both the second appeals were the defendants in the Original Suit.
3. The suit was filed by the respondents seeking declaration of title in respect of the properties described in plaint 'A' and 'B' Schedule and also for a permanent injunction. The trial court, after trial, decreed the suit in part and granted the said reliefs sought for in respect of the self-acquired properties alone out of the properties described in plaint 'A' and 'B' schedule. In respect of the ancestral properties out of the properties described in plaint 'A' and 'B' schedule, the suit was dismissed in respect of both the reliefs.
4. Therefore, the plaintiffs filed appeal in A.S.No.1/2009 against the disallowed portion of the plaint claim and the defendants preferred A.S.No.49/2009 against the decree granted in favour of the plaintiffs. Both the appeals were filed on the file of the Sub Court, Thanjavur. The said cases came to be assigned to Additional Subordinate Judge, Thanjavur. As both the appeals arose out of one and the same suit, they were heard jointly and were disposed of by a common judgment dated 30.04.2010.
5. The learned first appellate judge dismissed A.S.No.49/2009 preferred by the defendants and allowed A.S.No.1/2009 preferred by the plaintiffs and thereby granted declaration and permanent injunction in respect of all the suit properties described in plaint 'A' and 'B' schedule. As against the decree of the lower appellate court dismissing A.S.No.49/2009, Second Appeal No.791/2010 has been filed. As against the decree passed in A.S.No.1/2009, second appeal No.792/2010 has been filed.
6. For the sake of convenience, the parties are referred to in their ranks in the second appeals and also in the suit as the "appellants/defendants" and "respondents/plaintiffs"..
7. Since notice was served on the respondents/plaintiffs and they are also represented by counsel and the counsel for both parties made a request for the disposal of the second appeal on merit at the stage of admission itself, the arguments advanced by Mr.V.Chandrasekar, learned counsel for the appellants/defendants and the arguments advanced by Mr.R.Vijayakumar, learned counsel representing Mr.G.Karnan, counsel on record for appearing on behalf of the respondents/plaintiffs were heard. The materials placed before the court in the form of typed set of papers were also perused.
8. The respondents herein/plaintiffs had filed the suit containing the following allegations:-
The first respondent/first plaintiff and the second respondent/second plaintiff are father and son. The first respondent herein/first plaintiff is the absolute owner, who is in possession and enjoyment of the properties described in plaint 'A' schedule. The second respondent/second plaintiff is the absolute owner who is in possession and enjoyment of the properties described in plaint 'B' schedule. Items 2, 3 and 4 and 6-1/2 cents in item No.5 of the plaint 'A' schedule and items 1 and 2 and 1.62 acres in item No.6 of plaint 'B' schedule are the ancestral properties of the first respondent/first plaintiff. He had inherited the same from his father Thangavel Thondamar as his only son on the demise of his father in the year 1953. Item No.1 and 6 cents in item No.5 of plaint 'A' schedule and also items 3, 4 and 5 and 1.34 acres in item No.6 of plaint 'B' schedule are the properties purchased by the first respondent/first plaintiff as his self-acquisitions. As such the suit properties are partly ancestral and partly self-acquired properties of the first respondent/first plaintiff. The first respondent/first plaintiff executed a registered Settlement Deed dated 03.09.1975 in favour of his wife Tmt.Navamani in respect of the entire extent of item No.6 of plaint 'B' schedule, which consists of the ancestral properties having an extent of 1.62 acres and the self-acquisition having an extent of 1.34 acres purchased by the first respondent/first plaintiff under a registered sale deed dated 28.12.1967. Similarly, the first respondent/first plaintiff executed another Settlement Deed on 26.05.1986 in favour of the second respondent/second plaintiff showing Navamani as his guardian since he was then a minor. On the strength of the Settlement Deeds, the said Tmt. Navamani, wife of the first respondent/first plaintiff was in possession of the property for herself and on behalf of the second respondent/second plaintiff. She died on 03.04.1998 and after her death, as per the recitals found in the above mentioned Settlement Deeds, the second respondent/second plaintiff became the absolute owner of the entire property described in plaint 'B' schedule and he is in possession and enjoyment of the same. Due to the enmity created pursuant to the complaint lodged by the respondents/plaintiffs against the second appellant/second defendant and his brother Sundar alleging theft after house breaking on 04.07.1999, the second appellant/second defendant, his brother Sundar and his cousin Senthil Kumar attempted to prevent the wife of the second respondent/second plaintiff from plucking the cashew nuts from the thpes each one of the suit properties in R.S.NO.176/7. In pursuance of the same a case was registered in Crime No.84/2000 based on the complaint of Tmt.Suseela, the wife of the second respondent/second plaintiff. Subsequently also the appellants/defendants, along with the said Sundar, made attempts to prevent the respondents/plaintiffs from going to the cashew thope in item No.3 of plaint 'A' schedule properties and item Nos.3 to 6 of 'B' schedule properties. Since the police directed the respondents/plaintiffs to go to the civil court to obtain necessary orders as the dispute, according to them, was of civil nature, the respondents/plaintiffs had to approach the court for the reliefs of declaration and permanent injunction.
9. The suit was resisted by the appellants herein/defendants by filing a Written Statement containing the following averments, besides denying the plaint averments:-
The first respondent/first plaintiff is the younger brother of the first appellant/first defendant. The second respondent herein/second plaintiff is a illegitimate son of the first respondent/first plaintiff. The said facts have been deliberately suppressed by the respondents/plaintiffs in their plaint. One Thangavel Thondamar was the common ancestor of the first respondent/first plaintiff and the appellants/defendants. The said Thangavel Thondamar died in the year 1953 leaving behind him his widow Kannammal, three daughters by name Jagathambal (first appellant/first defendant), Dhanapackiyam and Anjalai @ Anjammal and a son, namely the first respondent/first plaintiff. He left movable and immovable properties including items 2, 3, 4 and 5 in plaint 'A' schedule and items 2 and 6 described in plaint 'B' schedule as ancestral nucleus of the Hindu Joint Family consisting of the above said legal heirs of Thangavel Thondamar. After the demise of the said Thangavel Thondamar, his widow Kannammal was the only major member in the family and she took charge as Kartha of the family and was managing joint family affairs. Later, the first appellant/first defendant was married to one Uthirapathy, who is the younger brother of the said Kannammal and as such, the said Uthirapathy was affiliated as a member of the said joint family. Thereafter, the said Uthirapathy purchased item Nos.1 and 2 described in plaint 'A' schedule and item Nos.3, 4, 5 and 6 described in plaint 'B' schedule in the name of the first respondent/ first plaintiff, who is the only son of the deceased kartha Thangavel Thondamar. The said purchases were made using the income derived from the joint family nucleus. Since the early days of the first respondent/first plaintiff was with bad habits, he did not contribute his manual labour to improve the joint family property. In 1968, the first respondent/first plaintiff married one Anjalai, who was none other than the daughter of his father's sister. However, from 1971, the first respondent/first plaintiff started to live with one Navamani, keeping her as his concubine. The second respondent/second plaintiff was the son born to him out of the above said illegal connection between the first respondent/first plaintiff and Navamani. Another Anjalai @ Anjammal, who was the sister of the first respondent/first plaintiff and of the first appellant/first defendant, died in the year 1970 without issues, after releasing her share in the properties of Hindu Undivided Family in favour of his elder sister, namely the first appellant/first defendant, Uthirapathy, the husband of the first appellant/first defendant also died in the year 1984. After the death of the said persons, the first respondent/first plaintiff, with the assistance of Navamani, gave a lot of trouble to Kannammal, due to which the said Kannammal lost her power to control. Thereafter, Kannammal, Dhanapackiam and Anjalai, who were the mother, sister and wife of the first respondent/first plaintiff respectively, started to live jointly as a separate group from the year 1985. After such disruption, the properties purchased in the name of the first respondent/first plaintiff were orally partitioned at the intervention of well- wishers. In the said oral partition, except item Nos.4 and 5 described in plaint 'A' schedule and other properties that are not included in the suit were allotted to the group of the defendants. The above said Dhanapackiam and Kannammal died respectively in the years 1989 and 1992 after having disposed of their shares in the said properties in favour of the first appellant/first defendant. Therefore, the first appellant/first defendant became the absolute owner of all other suit properties except items 4 and 5 described in plaint 'A' schedule. Having accepted the said oral partition, the respondents/plaintiffs created false documents on the instigation of Navamani. The creation of such false documents came to the knowledge of the appellants/defendants only after the filing of the present suit. The Settlement Deeds in respect of the joint family properties in favour of Navamani and the second respondent/second plaintiff are not valid in law. Joint patta had been issued in respect of the joint family properties by the Revenue authorities after giving opportunity to both sides. Suppressing the fact, the respondents/plaintiffs obtained an ex- parte order of injunction. The appellants/defendants are in exclusive possession of the suit properties, which were allotted to them in the oral partition as indicated supra. If the first respondent/first plaintiff wants to claim any interest in the suit properties he has to work out his remedy by filing a suit for partition. On the other hand, the suit filed for declaration and injunction is not maintainable. Therefore, the suit should be dismissed with cost.
10. Based on the above said pleadings, the learned trial judge framed as many as six issues which are as follows:-
" 1) Is it correct to state that the plaintiffs are lawful owners of the suit properties?
2) Whether the defendants are legally entitled to the suit properties?
3) Whether there was a oral partition between the parties?
4) Whether the plaintiffs are entitled to the relief of declaration?
5) Whether the plaintiffs are entitled to the relief of permanent injunction?
6) What are the other reliefs?"
11. Three witnesses were examined as P.Ws.1 to 3 and 71 documents were marked as Exs.A1 to A71 on the side of the plaintiffs. Four witnesses were examined as D.Ws.1 to 4 and 12 documents were marked as Exs.B1 to B12 on the side of the defendants. The learned District Munsif, Thanjavur, at the conclusion of trial, considered the pleadings and evidence and came to the conclusion that the suit properties consist of ancestral joint family properties in which the defendants also had got a share and self-acquisitions of the first respondent herein/first plaintiff. In tune with the said fining, the learned District Munsif, Thanjavur granted a decree for declaration in respect of a portion of the properties described in plaint 'A' and 'B' schedule and dismissed the suit in respect of the other portion. In doing so, the learned District Munsif, Thanjavur has stated in the decree that the reliefs were granted in respect of self-acquired properties of the first respondent herein/ first plaintiff out of the properties described in plaint 'A' and 'B' schedule and the suit was dismissed in respect of the ancestral properties out of the properties described in plaint 'A' and 'B' schedule. For better appreciation, the clauses of the decree are reproduced hereunder:-
""1. thjpfspd; jhth gFjpahf mDkjpf;fg;gLfpwJ.
2. jhth V kw;Wk; gp ml;ltizapd; fz;Ls;s Rark;ghj;jpa brhj;Jf;fs; thjpfSf;F chpika[ilaJ vd;W tpsk;g[if ghpfhuk; tH fg;gLfpwJ.
3. mjd; bjhlh;r;rpahf V kw;Wk; gp ml;ltizapd; fz;Ls;s Rark;ghj;jpa brhj;Jf;fis thjpfs; mDgtpj;J tUtij gpujpthjpfBsh kw;Wk; mth;fsJ vt;tpj nila{Wk; bra;af;TlhJ vd;W epue;ju cWj;Jf;fl;lisg; ghpfhuk; tH fg;gLfpwJ.
4. jhth V kw;Wk; gp ml;ltizapy; fz;Ls;s g{h;tPf brhj;Jf;fisg bghWj;J thjpapd; tHf;F js;Sgobra;ag;gLfpwJ.
5. nt;tHf;fpd; thjpf;Ff;Bfw;;gl;l bryt[j;bjhif U.639.50 Ia[k;, gpujpthjpfSf;Bfw;gl;l bryt[j; bjhif U. - Ia[k; mtuth;fBs bghWj;Jf;bfhs;sBtz;Lk;.""
12. It is pertinent to note that, though the learned District Munsif has given a finding that the properties purchased in the name of the first respondent/first plaintiff under Exs.A1 to A5 were the self-acquisitions of the first respondent/ first plaintiff, the learned District Munsif, Thanjavur has not made it clear in the operative portion of the judgment or in the decree as to which were the self-acquisitions of the first respondent/first plaintiff in respect of which the suit was decreed and which were the ancestral properties in respect of which the suit was dismissed.
13. The respondents herein/plaintiff filed an appeal in A.S.No.1/2009 on the file of the Additional Subordinate Judge, Thanjavur against the disallowed portion of the plaint claim. Similarly, the appellants herein/defendants filed an appeal in A.S.No.49/2009 on the file of the very same court as against the decree granted by the trial court in favour of the respondents herein/plaintiffs. Both the appeals were jointly heard and were disposed of by a common judgment dated 30.04.2010. By the said common judgment, the learned first appellate judge allowed the appeal filed by the respondents herein/plaintiffs, namely A.S.No.1/2009 and dismissed the appeal filed by the appellants herein/defendants, namely A.S.No.49/2009 and thereby decreed the suit in its entirety granting the reliefs of declaration and permanent injunction in respect of all the suit properties described in plaint 'A' and 'B' schedules. Challenging the same, the appellants herein/defendants have come forward with the present second appeals.
14. S.A.No.791/2010 is directed against the decree made by the lower appellate court in A.S.No.49/2009 and S.A.No.792/2010 is directed against the decree of the lower appellate court made in A.S.No.1 of 2009.
15. "(1) Whether the finding of the courts below that the properties purchased under Exs.A1 to A5 were the self-acquisitions of the first respondent/first plaintiff is perverse? (2) Whether the lower appellate court has committed an error in law in granting declaration and injunction even in respect of the properties admitted to be the ancestral properties?" - are the two substantial questions of law that are involved in the present second appeals.
16. It is an admitted fact that the suit properties consist of ancestral properties and the properties purchased in the name of the first respondent/first plaintiff under Exs.A1 to A5. In fact in the plaint itself, the respondents/plaintiffs have stated that items 2, 3 and 4 described in Plaint 'A' schedule and 6-1/2 cents out of 12-1/2 cents described as item No.5 in Plaint 'A' schedule and also items 1 and 2 of Plaint 'B' schedule and 1.62 acres out of 2.96 acres described as item No.6 in Plaint 'B' schedule were the ancestral properties inherited by the first respondent herein/first plaintiff from his father Thangavel Thondamar. Therefore, there is a clear admission that the said properties, namely items 2, 3 and 4 of plaint 'A' schedule, 6-1/2 cents of item 5 of plaint 'A' schedule, items 1 and 2 of plaint 'B' schedule and 1.62 acres out of the 6th item of plaint 'B' schedule were the ancestral properties. Only the other items of suit properties were said to be purchased by the first respondent/first plaintiff under Exs.A1 to A5. It is true that the appellants herein/defendants have contended that the properties purchased under Exs.A1 to A5 were also the joint family properties, as they were acquired with the help of the income derived from the joint family nucleus. However the appellants herein/ defendants themselves have admitted in the written statement that the income from the ancestral properties was not available with the first plaintiff at the time of purchase of the above said items under Exs.A1 to A5. It is their contention that since the first plaintiff was not aged enough to head the joint family at the time of death of Thangavel Tondamar, Kannammal, the mother of the first respondent herein/first plaintiff took over the reign as the manager of the joint family and after the marriage of the first appellant herein/first defendant with one Uthirapathy, the said Uthirapathy looked after the management of the joint family properties and that out of the earnings derived from the joint family properties, the properties concerned in Exs.A1 to A5 were purchased in the name of the first respondent/first plaintiff. The said admission will go to show that on the date of acquisitions made under Exs.A1 to A5, the first plaintiff was not having in his hands the income derived from the other properties, which are admittedly ancestral properties. Only in order to get over the difficulty of projecting the said acquisitions to be acquisitions made with the help of income derived from the joint family nucleus, the appellants herein/defendants have contended that the purchases made under Exs.A1 to A5, were in fact made by Uthirapathy in the name of the first respondent herein/first plaintiff. In view of the said admission alone, the trial court came to the conclusion that the acquisitions made under Exs.A1 to A5 were made by the first respondent herein/first plaintiff and that they were not made by Uthirapathy in the name of the first respondent herein/first plaintiff as contended by the appellants herein/defendants. In view of the admission that the income from the properties of the Hindu joint family was not available with the first respondent/first plaintiff at the time of acquisitions made under Exs.A1 to A5, the trial court came to the conclusion that those acquisitions were self-acquisitions and the properties acquired under Exs.A1 to A5 were the separate absolute properties of the first respondent/first plaintiff. In line with the said finding, the trial court also came to the conclusion that the documents executed in favour of the second respondent herein/second plaintiff and his mother Navamani were valid and binding on the others only in respect of the properties covered by Exs.A1 to A5 and will not bind the appellants herein/defendants in respect of their shares in the ancestral joint family properties.
17. The learned first appellate judge, on re-appreciation of evidence also concurred with the finding of the trial court that the properties purchased under Exs.A1 to A5 were the absolute properties of the first respondent/first plaintiff and that the settlement deeds executed by him in respect of those properties in favour of Navamani and the second respondent/ second plaintiff were valid and binding upon the defendants. This court finds no defect or infirmity in the finding of the lower appellate court that the appellants herein/defendants cannot have any right in the properties purchased under Exs.A1 to A5, since they were the self-acquisitions of the first respondent/first plaintiff made without the aid of the income derived from the joint family nucleus.
18. Though the appellants herein/defendants have challenged the said finding also, during arguments, it was conceded on behalf of the appellants that the challenge made to the said finding regarding the properties acquired under Exs.A1 to A5 were not pressed by the appellants herein/defendants and that since the decree did not make it unambiguous as to which were the self-acquisitions and which were the ancestral properties, they wanted a clear cut clarification to be made by this court in this regard. The said submission made on behalf of the appellants herein/defendants is quite reasonable. Therefore, this court comes to the conclusion that the concurrent findings made by the courts below to the effect that properties purchased under Exs.A1 to A5 were the self- acquired properties of the first respondent/first plaintiff and hence the respondents/plaintiffs were entitled to the reliefs sought for in respect of those properties deserve to be confirmed. But, at the same time, as requested by the learned counsel appearing for the appellants herein/defendants, clear clauses should be incorporated in the decree specifying the properties which were the self-acquisitions of the first respondent/first plaintiff regarding which they are entitled to the relief of declaration and injunction as prayed for in the suit.
19. Admittedly the properties described in item Nos.2, 3 and 4 and 6 cents out of 12-1/2 cents in item 5 of the plaint 'A' schedule and item Nos1 and 2 and 1.62 ares out of 2.96 acres in item 6 of the plaint 'B' schedule were the properties of one Thangavel Thondamar, the common ancestor of the parties. It is the admitted case of the parties that Thangavel Thondamar died in the year 1953 i.e. before the Hindu Succession Act coming in to force. Therefore, apart from his son the first respondent/first plaintiff, he was also survived by his wife Kannammal. Hence Kannammal had got a widow's share, which was then a limited estate called life interest. The same came to be enlarged by the provisions of Section 14(1) of Hindu Succession Act, 1956. It is also the admission made by the parties that the said Kannammal died after the Hindu Succession Act coming into force leaving behind her three daughters, namely Jagathampal (first appellant/first defendant), Dhanapackiam and Anjalai @ Anjammal besides her son the first respondent herein/first plaintiff, as her legal heirs. Kannammal having died as a co-sharer in respect of the said ancestral properties, her shares would have devolved upon equally on her four children. That being the case, the respondents/plaintiffs could not be heard to contend that the said properties were also the absolute properties of the first respondent/first plaintiff. Without properly appreciating the pleadings and evidence, the learned first appellate judge has chosen to grant the relief of declaration and injunction in respect of those properties also, which were admittedly the ancestral properties in which Kannammal had got a share which devolved upon not only the first plaintiff, but also his three sisters on the death of the said Kannammal. The said finding of the lower appellate court reversing the finding of the trial court can be stamped without hesitation as a perverse one. Therefore, this court comes to the conclusion that the judgment and decree of the lower appellate court granting the relief of declaration and injunction in respect of item Nos.2, 3 and 4 and 6 cents out of 12-1/2 cents in item 5 of the plaint 'A' schedule and item Nos1 and 2 and 1.62 ares out of 2.96 acres in item 6 of the plaint 'B' schedule, when there is no proof of partition and allotment of the same to the first plaintiff is defective, infirm, perverse and is liable to be interfered with and set aside.
20. The learned counsel appearing for the respondents/plaintiffs have also fairly conceded that the above said decision of the lower appellate court in respect of the properties other than the properties purchased under Exs.A1 to A5 was incorrect and that hence the reversal of the decree passed by the trial court in respect of the properties other than the properties purchased under Exs.A1 to A5 could be set aside and the decree of the trial court in toto can be restored with a clarification specifying the properties, in clear terms without ambiguity, as to what are the properties in respect of which reliefs were granted and what are the properties in respect of which the reliefs were declined. The learned counsel for the respondents/plaintiffs has filed a Memo giving the description of properties purchased under Exs.A1 to A5. In view of the same, this court comes to the conclusion that the decree of the lower appellate court granted in A.S.No.49/2009 in respect of properties other than those covered by Exs.A1 to A5 out of the properties described in Plaint 'A' and 'B' schedules is liable to be set aside and the decree of the trial court in O.S.No.96/2001 in respect of those properties should be restored with a modification in the decree clearly specifying the properties in respect of which reliefs are granted.
21. For all the reasons stated above, S.A.(MD) No.791/2010 is dismissed. S.A.(MD) No.792/2010 is allowed in part. The decree passed in A.S.No.1/2009 is set aside with the result that the decree passed by the trial court shall stand restored with a clarification that the properties in respect of which the reliefs are granted as prayed for in the suit shall be the properties covered by Exs.A1 to A5, which are morefully described in the Memo filed on behalf of the respondents in the second appeal. The memo shall be annexted to the decree. No cost. Consequently, connected miscellaneous petition is closed.
asr/-
To
1. The Additional Subordinate Judge, Thanjavur
2. The District Munsif, Thanjavur