Madras High Court
J.Murugesan vs Rani (Deceased) on 2 December, 2011
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2011
CORAM:
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
A.S.Nos.137 & 138 of 2006
A.S.No.137 of 2006:
1.J.Murugesan
2.J.Harikrishnan
3.J.Sarangapani
4.J.Gopalakrishnan
[Minor rep. by mother
and Natural Guardan
Pottiammal]
5.Smt.Pottiammal : Appellants/Defendants 2 to 6
Vs.
1.Rani (Deceased)
2.Indirani
3.Rajeswari
4.Vedagiri : Respondents 1 to 4/Plaintiffs 2 to 5
5.Kalitheertham :5th respondent
[R5 brought on record as LR
of the deceased R1 vide
order of this court dated
13.12.2010 made in CMP.No.1739/10]
Prayer: Appeal is filed under section 96 of the Civil Procedure Code, against the decree and judgement, dated 24.09.2005 and made in O.S.No.330 of 2004 on the file of the Additional District Judge (Fast Track Court-I), Chengalpet.
A.S.No.138 of 2006:
1.Pottiammal
2.Murugesan
3.Harikrishnan
4.Sarangapani
5.Gopalakrishnan : Appellants/Plaintiffs
vs.
1.Rani (deceased)
2.Indrani
3.Rajeswari
4.M.Vedagiri
5.Ashok Kumar Nahar : Respondents 1 to 5/
Defendants 3 to 7
6.Kali Theertham : 6th Respondent
[R6 brought on record as
LR of deceased R1, vide
order of this court,
dated 13.12.2010 and
made in CMP No.1740 of 2010]
Prayer in A.S.No.138 of 2006: Appeal is filed under section 96 of the Civil Procedure Code, against the decree and judgement, dated 24.09.2005 and made in O.S.No.329 of 2004 on the file of the Additional District Judge (Fast Track Court-I), Chengalpet.
For Appellants : Mr.V.Raghavachari
(in both A.S) for Mr.S.Saravanakumar
For Respondents : Mr.T.R.Rajagopalan,
Senior Counsel
for Mr.T.R.Rajaraman
for RR2 to 5 in A.S.No.137/2006
and for RR2 to 4 & 6 in A.S.No.138/2006
Mr.S.Parthasarathy
Senior Counsel
for Mr.J.Ramakrishnan
for R5 in A.S.No.138 of 2006
C O M M O N J U D G M E N T
These two regular appeals viz., A.S.Nos.137 and 138 of 2006 have been directed against the common judgment, dated 24.09.2005 and made in O.S.Nos.329 and 330 of 2004 respectively on the file of the learned Additional District Judge (Fast Track Court-I), Chengalpet.
2. The appellants in A.S.No.137 of 2006 are the defendants 2 to 6 in the suit in O.S.No.330 of 2004 and the respondents 1 to 4 are the plaintiffs. The 5th respondent has been brought on record as the legal heir of the deceased first respondent, vide order of this court, dated 13.12.2010 and made in CMP No.1739 of 2010.
3. The appellants 1 to 5 in A.S.No.138 of 2006 are the plaintiffs in the suit in O.S.No.329 of 2004 and the respondents 1 to 5 are the defendants 3 to 7 therein. The 6th respondent has been brought on record as the legal heir of the deceased first respondent, vide the order of this court, dated 13.12.2010 and made in CMP No.1740 of 2010.
4. The parties in both the appeals are one and the same. The properties described in the schedule, in both the suits and the subject matter, which is in issue, in both the appeals are also one and the same. These two appeals have therefore been clubbed together, heard jointly and disposed of in this common judgment.
5. For easy reference and for the sake of convenience, the parties to the appeals may herein-after be referred to as the appellants and the respondents as it is.
6. The facts, which are absolutely necessary for the disposal of these two appeals may be summarised in brief as under:-
Before we go into the facts of the case, this court feels that it may be quite relevant to give a topographical sketch of the genealogy of Muthukrishna Naidu. Because, he is the man around him the whole case hinges.
Muthukrishna Naidu [died-after suit (D-2)]
|
|-----------------------------|
| |
Devaki Ammal (died) Jayalakshmi Ammal (D1)
(First wife) (2nd wife) (Died after suit)
|
Jayachaldndra Naidu (son) |
(Died on 5-7-1984) |
| |
=Potti Ammal (P-1) |
(wife) |
| |
| Rani Indirani Rajeswari Vedagiri
| (D-3) (D-4) (D-5) (D-6)
| (daughter) (daughter) (daughter) (son)
| =[D.W.2] =[D.W.3]
|
-|---------------------------------------------|
Murugesan Harikrishnan Sarangan Aliappan
(son) (son) (son) @ Gopalakrishnan (son)
(P-2) (P-3) (P-4) (P-5)
7. Muthukrishna Naidu had two wives, by name Devaki Ammal (Died) and Jayalakshmi Ammal (D1) (died after the suit). He had begotten one son through the first wife Devaki Ammal, by name Jayachandra Naidu (died on 5.7.1984). Through, the second wife Jayalakshmi Ammal, Muthukrishna Naidu had begotten three daughters and one son viz., Rani (D3), Indirani (D4), Rajeshwari (D5) and Vedagiri(D6).
8. Pottiammal, who is the first appellant in A.S.No.138 of 2006 is the wife of Jayachandra Naidu. She had begotten four sons through Jayachandra Naidu viz., Murugesan (2nd plaintiff), Harikrishnan (3rd plaintiff), Sarangan (4th plaintiff) and Aliappan @ Gopalakrishnan (5th plaintiff).
9. Pottiammal and her sons have filed the suit in O.S.No.329 of 2004 claiming partition of their half share in the schedule mentioned property therein.
10. Similarly, Jayalakshmi Ammal, who is the 2nd wife of Muthukrishna Naidu has filed another suit in O.S.No.330 of 2004 against her husband Muthukrishna Naidu, his grandsons (sons of Jaichandra Naidu), Pottiammal (wife of Jaichandra Naidu), her own daughters and son viz.Rani, Indrani, Rajeswari and Vedagiri as defendants 1 to 10. During the pendency of suit Jayalakshmi Ammal had passed away and therefore the defendants 7 to 10 have been transposed as plaintiffs 2 to 5 as per the Order of the Trial Court dated 24.04.2003 and made in I.A.No.301 of 2002, seeking the relief of declaration of her title to the property described in the schedule in the above said suit and also for recovery of possession, past and future profits.
11. In the suit in O.S.No.329 of 2004, the appellants/plaintiffs have contended that Jayachandra Naidu being the son of Muthukrishna Naidu is entitled to half share in the suit schedule properties and hence the appellants being the legal representatives of Jayachandra Naidu will inherit his half share in the suit properties. The other half share goes to the first defendant, Jayakahsmi Ammal, who is none other than the 2nd wife of Muthukrishna Naidu.
12. In the suit in O.S.No.330 of 2004, Jayalakshmi Ammal being the plaintiff has contended that the property more-fully described in the plaint schedule comprised in S.No.140, measuring one acre and 48 cents is absolutely belonged to her and that she has been in absolute possession and enjoyment of the same.
13. In the said suit, she has also contended that since her husband, Muthukrishna Naidu, was patronising his children through his first wife against her interest and her children and since, her husband Muthukrishna Naidu had made an attempt to interfere with her properties, she had to file a suit in O.S.No.39 of 1958 on the file of the learned Subordinate Judge, Chengalpet, seeking the relief of declaration and permanent injunction against her husband Muthukrishna Naidu, his son Jaychandra Naidu born through his first wife Devaki Ammal and Pottiammal wife Jayachandra Naidu.
14. The property in the suit in O.S.No.330 of 2004 has been figured as item No.24 in the suit viz., O.S.No.39 of 1958. That suit was ended in compromise at the intervention of some mediators and accordingly, on 17.10.1958, a compromise decree was passed.
15. As per Clauses 2 to 5 of the compromise decree, it was declared that the suit property (S.No.140 measuring an extent of one acre and 48 cents) and other items mentioned in that suit, except the properties enumerated in schedule I and II, belonged to the first defendant Jayalakshmi Ammal and that she should enjoy them absolutely.
16. The properties specified in the 1st schedule in the compromise decree were given to Muthukrishna Naidu and the 2nd schedule properties were given to Jayachandra Naidu. In this regard, the appellants have contended that the compromise decree obtained on 17.10.1958 in O.S.No.39 of 1958 was collusive in nature and was neither accepted nor acted upon and that it is not binding on them.
17. The appellants have further contended that the properties that are described in the schedule of the present suit, are the joint family properties and that they are in joint possession.
18. The appellants were put to understand that Muthukrishna Naidu had executed a Settlement Deed, dated 14.09.1984 with regard to some of the items of the joint family properties in favour of the appellants 2 to 5, and it was neither accepted nor acted upon, as it is a shame, void and nominal Settlement Deed.
19. Muthukrishna Naidu, (D2) (since deceased) was in possession of the suit schedule properties as joint family manager, including for the appellants. No division was effected in respect of the schedule mentioned properties. Despite the demand made by the appellants through a lawyer's notice, dated 23.10.1988, there was no response on the side of the respondents. Hence, the appellants have come forward with the suit for partition, seeking half share.
20. The written statement filed by the first defendant in the suit in O.S.No.329 of 2004 has been adopted by the defendants 3 to 6.
21. The respondents 1 to 4/defendants 3 to 6, in A.S.No.138 of 2006, have admitted the relationship of the parties to the suit.
22. The 2nd defendant, Muthukrishna Naidu, who was given the properties mentioned in schedule I to the compromise decree in O.S.No.39 of 1958 was in possession of those properties and was dealing with them. Similarly, Jayachandra Naidu, the husband of the first appellant Pottiammal was also in possession of the property mentioned in the 2nd schedule to the compromise decree and was dealing with the same. Neither, Muthukrishna Naidu nor Jayachandra Naidu had any interest over the properties of the first defendant Jayalakshmi Ammal, shown in the schedule to the compromise decree.
23. Muthukrishna Naidu was in possession of the schedule mentioned properties in the suit, as joint family manager.
24. It is significant to note here that the plaint schedule does not contain the properties given to the 2nd defendant Muthukrishna Naidu and Jayachandra Naidu under the compromise decree in O.S.No.39 of 1958. The properties have been acquired by the first defendant, Jayalakshmi Ammal and as such, she has been in possession and enjoyment and that the appellants/plaintiffs have, therefore, no interest in the suit properties and they were never in possession thereof.
25. In their additional written statement, the respondents/defendants 3 to 6 have contended that most of the properties described in the schedule are the exclusive properties of their mother Jayalakshmi Ammal (first defendant), as she having purchased the same from out of her own funds, savings, borrowings and contributions received from her parents or gifted by them. She was the sole and absolute owner and therefore they have been in exclusive possession and enjoyment of the same. Some of the properties described in the plaint were the properties purchased by Muthukrishna Naidu (2nd defendant), out of his funds and savings. They were his separate properties. There was no ancestral nucleus. The following lands were purchased by their mother viz., first defendant out of her own funds and savings, borrowed, or contributions from her parents.
a.Chengalpet Taluk, Thenur Village Sale Deed, Dated 12.11.1937 S.No.89/1A 0.38 (0.16.0) S.No.113/1B 0.33 (0.14.5) S.No.113/1D 0.18 (0.05.5) b.Alathur Village - Sale Deed, dated 9.12.1944 S.No. 32/1 0.73 (0.30.0) 77/2A 77/2B 0.49 (0.12.0 & 0.18.0) 116 0.26 (0.10.5) 145/2 1.00 (0.40.5) 185/9 1.26 (0.51.0) 192/4 0.49 (0.02.0) 212 0.85 (0.34.5) 220/1C 0.12 (0.5.0) 224/3 0.40.(0.20.0) 226/3 0.63(0.32.5) c.Alathur Village - Sale Deed, dated 1.11.1952 S.No.118/1B 0.14 (0.06.0) 36/5 0.15 (0.06.0) 203/3A 0.14 (0.05.0) 36/1 0.54 (0.22.0) 38/8 0.05-1/2 (0.02.0) 226/3 1.70 200/2 0.06 238 0.06 d.Alathur Village-Sale Deed, dated 17.11.1953 S.No.185/11 0.08.0 226/16 0.17.0 e.Thenur Village - Sale Deed, dated 18.6.1957 S.No.113/3 0.18.0 114/2 0.23.5 f.Alathur Village, Sale Deed, dated 27.08.1979 S.No.147 : 1.80 (0.70.0) g.Alathur Village, Sale Deed, dated 14.07.1980 S.No.185/10:1.22 (0.49.5) h.Alathur Village, Sale Deed, Dated 22.07.1982 S.No.197/1 : 0.80 (0.32.0)
26. The following lands were acquired by their mother 1st defendant from her mother, Seethammal as 'Sridan' property under the Gift Deed, dated 5.2.1946.
Thenur Village S.No.114/3 0.30 (0.12.0) 115/1 0.65 (0.26.5) 115/4 0.25 (0.10.0) 148/1 0.25 156/2 1.00
27. The followings lands were purchased by the first defendant, Jayalakshmi Ammal in the name of her mother Seethammal under two Sale Deeds, dated 29.08.1955. Subsequently, Seethammal had released her rights under two release deeds, dated 12.04.1959 in favour of Jayalakshmi Ammal.
Alathur Village S.No.199/2 0.89 (0.40.0) 205/1 0.16 (0.13.5) 203/3B 0.59 (0.38.5) 204/2 0.31 (0.12.5) 204/3A 0.34 (0.06.0) 220/5 0.23 (0.18.5) 223/2B 1.20 (0.30.0) 220/2 0.06
28. The lands comprised in S.No.140, Alathur village, measuring 0.60.0 acres was acquired by the first defendant under the compromise decree, dated 17.09.1958 in O.S.No.39 of 1958. The house properties situated in S.No.107/5 and S.No.107/6, Alathur Village, Grama Natham, were purchased by the first defendant under a sale deed, dated 24.07.1946 out of her own funds and savings. Similarly, the vacant site in S.No.107/6, measuring 9 cents was purchased by the first defendant, Jayalakshmi Ammal, under the sale deed dated 09.12.1944.
29. The house bearing Door No.3, Muthukrishnan Street, T.Nagar, Madras-17 was originally a vacant site belonging to Muthukrishna Naidu, the 2nd defendant. The first defendant had purchased the same from him through a sale deed, dated 13.05.1937 prior to her marriage and put up a construction in the land out of her own funds. She was in exclusive possession and enjoyment of the same. Subsequently, she has settled the house property in favour of her son, M.Vedagiri, her daughter Indirani Ammal, who are the respondents 2 and 4 herein and the defendants 4 and 6 in the suit, under two settlement deeds, dated 28.07.1982, reserving her life interest in the properties.
30. They have also contented that the 2nd defendant (Muthukrishna Naidu) had executed a settlement deed in favour of his son Vedagiri, the 4th respondent herein and 6th defendant in the suit, in respect of the lands in S.No.151/1, Alathur village, measuring 0.20.2 acres under a settlement deed, dated 9.12.1983.
31. In the compromise decree, in O.S.No.39 of 1958, dated 17.10.1958, the following items were allotted to Muthukrishna Naidu and Jayachandra Naidu respectively.
Muthukrishna Naidu - Alathur Village S.No.107/5 0.12 200/2 0.13 238 0.13 48/3 0.93 48/2 0.23 196/1 0.77 129 0.59 226/3C 1.69 Total 4.51 acres Jayachandra Naidu Alathur Village S.No.130/2 0.66 130/3 0.99 137 0.15 138 0.28 139/1 0.39 139/2 0.33 139/3 0.54 86/1 0.48 Total 3.82 acres
32. Excepting, the properties allotted to Muthukrishna Naidu and Jayachandra Naidu, the other properties specified in the compromise decree were declared as the properties of the first defendant, Jayalakshmi Ammal and neither Muthukrishna Naidu nor Jayachandra Naidu, had any claim over the same. The said compromise decree is binding on the appellants and therefore they cannot maintain any claim or share over the properties belonging to the first defendant (Jayalakshmi Ammal). The compromise decree has been acted upon by the appellants and therefore, they are estopped from questioning the same.
33. The respondents 1 to 4/defendants 3 to 6 have also contended that the suit, as framed without a prayer for setting aside the compromise decree in O.S.No.39 of 1958, is not maintainable. The suit or claim to enforce the right of the appellants/plaintiffs in respect of the properties alleged to be held binami against the first defendant, Jayalakshmi Ammal, is not maintainable as per section 4 of the Binami Transactions (Prohibition) Act, 1988.
34. They have also contended that in respect of other separate properties belonging to Muthukrishna Naidu, they are also entitled to a share as his legal-heirs.
35. The 3rd respondent/5th defendant has also filed her separate additional written statement, in which, she has contended that the respondents 1 to 4/defendants 3 to 6 are the members of the undivided Hindu Joint family and Muthukrishna Naidu was the head of the joint family, who died in the year 1991 and as a matter of fact, having regard to his long occupation of the area at Door No.3, the street, in which he was residing has been named as Muthukrishna Naidu Street, which is located opposite to Pondy Bazaar, Madras-600 017 1991, even during his life. The first defendant, Jayalakshmi Ammal, is not a person of substantial means or status, but was only a house wife without any substantial assets and the 2nd defendant Muthukrishna Naidu, who is the father of this respondent/defendant had purchased the property and later, executed a deed of indenture on 13.05.1937 in favour of his wife the first defendant. Even though, he had executed a deed of indenture in favour of his wife, (Jayalakshmi Ammal), the first defendant, the property was treated as self-acquired property of Late Muthukrishna Naidu and was owned and possessed by him as his individual property during his life time and it was treated as the property for the benefit of the members of the family.
36. The alleged deed of indenture, dated 13.05.1937 was never acted upon and Late Muthukrishna Naidu continued to exercise the right of his ownership over the suit property, and had been managing the property till his demise in 1991.
37. Besides, Late Muthukrishna Naidu had also acquired extensive agricultural property at Alathur Village, Kancheepuram District and movables, such as jewellery worth about more than Rs.2 lakhs. The litigations in O.S.No.463 of 1997 and O.S.No.39 of 1958 were brought out by the first defendant (Jayalakshmi Ammal) in active collusion and connivance with Muthukrishna Naidu to defeat the rights of the parties, who have been enjoying the properties of the joint family and who are in joint possession of the said properties.
38. The alleged settlement deed, dated 14.09.1994 is also not binding upon the defendants (3rd respondent/5th defendant), in-as-much-as, it was neither accepted nor acted upon by the members of the family.
39. Despite the pendency of the suit, Jayalakshmi Ammal had dealt with some of the properties and the said transaction is vitiated. During the pendency of the suit, Jayalakshmi Ammal had created a settlement deed in favour of Indirani Ammal (2nd respondent/4th defendant) and Vedagiri (4th respondent/6th defendant) on 28.07.1982, reserving a life interest for herself and she had also executed a power of Attorney in favour of Ashokkumar Nahar, by a registered power of Attorney, on 24th February 1989. These documents were fabricated with a view to secret the assets for their benefits and therefore, the 3rd respondent/5th defendant has come forward with a prayer, for a decree for partition in respect of her share and she has also paid the proper court fee of Rs.200/- for passing a joint preliminary decree in favour of the plaintiffs as well as in her favour.
40. In the re-joinder to the additional written statement filed by the defendants 4 to 6, the appellants/plaintiffs have contended that sub-item 19 to item No.35 of plaint schedule was not allotted to Muthukrishna Naidu under the compromise decree passed in O.S.No.39 of 1958. But Muthukrishna Naidu was said to have executed a settlement deed, dated 09.12.1993 to Indirani in respect of sub-item No.19 to Item 35 and this itself would go to show that the compromise decree in O.S.No.39 of 1958 was not acted upon. The lands in Thenur village do not belong to Jayalakshmi Ammal.
41. In the Sale Deed, dated 13.02.2003, alleged to have been executed and registered by the 6th defendant in favour of the 4th defendant in respect of Grama Natham S.No.107/6, it has been clearly recited that this property is the ancestral property of Muthukrishna Naidu.
42. Further, in the suit in O.S.No.39 of 1958 filed by the defendants 3 to 6 against the plaintiff and others for partition, they have admitted that there were joint family properties. The defendants 3 to 6 are, therefore, now estopped from denying that there were not joint family properties.
43. The written statement filed by the 2nd defendant, in the above said suit, viz., Murugesan has been adopted by the other defendants 3 to 5. In their written statement, they have contended that they have got it under a registered settlement deed, dated 14.09.1984 executed by Muthukrishna Naidu in their favour, as they being his grand-children. They have also contended that the compromise decree in O.S.No.39 of 1958, dated 17.10.1958 is not binding upon them and since the plaintiff (Jayalakshmi Ammal) is the 2nd wife of Muthukrishna Naidu cannot question the settlement deed.
44. They have also contended that Muthukrishna Naidu continued to be in possession well over the statutory period in pursuant to the decree from the year 1958 till the date of settlement deed, dated 14.09.1984. The compromise decree, dated 17.10.1958 passed in O.S.No.39 of 1958 was not implemented or acted upon. They have also contended that the properties are ancestral properties and by birth, they are entitled to a share in respect of the settlement deed as aforestated.
45. Apart from this, they have also contended that the principles of res-judicata is not made applicable to the facts of the present case, as the schedule property are the joint family properties. Even if the settlement deed is questioned, the defendants 2 to 5 will definitely get a share as a joint family members and that they never trespassed into the schedule mentioned properties as alleged by the plaintiffs and they continued to be in possession as lawful owners even prior to the settlement.
46. Based on the pleadings of the suit in O.S.No.329 of 2004 as well as the suit in O.S.No.330 of 2004, the trial court has formulated the following issues:-
O.S.No.329 of 20041.Whether the plaintiff is entitled for partition as prayed for?
2.To what relief?
Additional Issue:-
1.Whether the suit properties are the joint family properties?
O.S.No.330 of 2004:
1.Whether the plaintiff is entitled for declaration as prayed for?
2.Whether the plaintiff is entitled for injunction as prayed for?
3.To what relief?
47. Based on the arguments advanced on behalf of both sides, the trial court has modified the issues in the following manner:-
1. Whether the 5th plaintiff is entitled to get a relief of declaration as prayed for in the suit?
2. Whether the 5th plaintiff is entitled to the relief of recovery of possession?
3. Whether the 5th plaintiff is entitled to get a sum of Rs.4,000/- towards past profit?
4. Whether the 5th plaintiff is entitled to future profit?
5. To what relief?
48. On a joint memorandum filed by both sides, the suit in O.S.Nos.329 of 2004 and 330 of 2004 were clubbed together and the evidences of the witnesses were recorded in O.S.No.329 of 2004. The 2nd plaintiff in O.S.No.329 of 2004 Murugesan was examined as PW1. During the course of his examination, Exs.A1 to A15 were marked. On the other hand, the first defendant, Jayalakshmi Ammal in O.S.No.329 of 2004 was originally examined as D.W.1. The 4th defendant Indirani, the 6th defendant Vedagiri and the 7th defendant Ashok Kumar were examined as DW2 to DW4 respectively. During the course of their examination, Exs.B1 to B120 were marked. During the pendency of the trial, DW1 Jayalakshi Ammal had passed away. Hence, her evidence was eschewed.
49. On scrutinising the evidences, both oral and documentary available on record, the trial court has found that:-
O.S.No.329 of 2004(i)The plaintiffs are entitled to get a share as prayed for in the suit, in respect of the property comprised in S.No.219/5 measuring 0.09.5, which has been shown as item No.2 under patta No.179 and in respect of other properties, the plaintiffs are not entitled to get share. With this finding the suit in O.S.No.329 of 2004 in other aspects was dismissed with costs.
O.S.No.330 of 2004:-
(ii)The 5th plaintiff is entitled for the relief of declaration in respect of the suit property and also for past profit to the extent of Rs.4,000/- and he is also entitled to get future profits. With this finding the suit in O.S.No.330 of 2004 was decreed with costs.
(iii)The defendants 2 to 5 in the suit in O.S.No.330 of 2004 were directed to surrender the possession of the suit property to the 5th plaintiff along with Rs.4,000/- towards past profit within a period of two months.
(iv)It was also found that the future profit is to be decided under a separate proceedings under Order 20 Rule 12 of CPC.
50. Being aggrieved by the common judgment and decree, dated 29.04.2005 and made in O.S.Nos.329 and 330 of 2004, the plaintiffs 1 to 5 in the suit O.S.No.329 of 2004 who are the defendants 2 to 6 in the suit in O.S.No.330 of 2004 have approached this court by way of these appeals.
51. Heard Mr.S.Saravana Kumar, the learned counsel appearing for the appellants and Mr.T.R.Rajaraman, the learned counsel appearing for the respondents.
52. Mr.S.Saravana Kumar, the learned counsel appearing for the appellants, while advancing his argument has expressed the anguish of the appellants and maintained that a major portions of the properties were given to Mrs.Jayalakshmi Ammal by way of settlement by Muthukrishna Naidu, for which Jayachandra Naidu, who is none other than his son and husband of the first appellant Pottiammal had co-operated.
53. On perusal of the averments of the pleadings and on appraising the evidences, both oral and documentary, this court finds that the whole facts hinges around the centre point of Ex.B1 viz., the compromise decree, dated 17.10.1958 and made in O.S.No.39 of 1958 on the file of the learned Subordinate Judge, Chengalpet.
54. It is quite relevant to note here that in the written statement filed by the first defendant Jayalakshmi Ammal in the suit in O.S.No.329 of 2004, she has stated that Muthukrishna Naidu (since deceased), who is the 2nd defendant therein had started patronising his son Jayachandra Naidu born through his first wife Devaki Ammal and acted against her interest as well as against the interest of her children born through him (Muthukrishna Naidu) and tried to interfere with her properties.
55. On account of this reason, she was constrained to file the suit in O.S.No.39 of 1958 on the file of the learned Subordinate Judge, Chengalpet praying for a decree of declaration of her title to the properties specified in the schedule therein and for permanent injunction.
56. It appears that the said suit ended in compromise as per the terms of the mediators and in pursuance thereof, a compromise decree came to be passed on 17.10.1958 and as per the terms of compromise decree, the 1st schedule properties specified therein, was allotted to Muthukrishna Naidu and the 2nd schedule was allotted to Jayachandra Naidu. Excepting, these two schedule mentioned properties, the other properties were declared as the absolute properties of Jayalakshmi Ammal and she should enjoy them absolutely.
57. It was also declared that neither Muthukrishna Naidu nor Jayachandra Naidu or Pottiammal has absolutely no claim thereto.
58. On a cursory perusal of Ex.B1, it is apparent that Pottiammal, who is the 3rd defendant in the suit in O.S.No.39 of 1958 remained absent and hence, she was set ex-parte.
59. It also appears that the plaintiff Jayalakshmi Ammal and the defendants 1 and 2 viz., Muthukrishna Naidu and Jayachandra Naidu, excepting the 3rd defendant (Pottiammal) have filed a compromise petition in I.A.No.399 of 1958 and in pursuance to the said compromise petition, a compromise decree was passed on 17.10.1958.
60. The import terms of the compromise decree, which are quite relevant for the disposal of these appeals may be extracted as under:-
(i)that the defendants 1 and 2 shall be absolute owners for the properties mentioned hereunder in the schedule I and II respectively and that the plaintiff shall have no claim over those properties thereafter;
(ii)that except those mentioned in schedules I and II, the other properties mentioned in the plaint and the properties purchased in the name of Jayalakshmi Ammal viz., the plaintiff shall belong to the plaintiff and the plaintiff shall be in enjoyment of the same with absolute right and the defendants shall have no claim over those properties;
(iii)that the plaintiff shall not alienate or dispose of the properties at Athanur Village purchased in her name during her life time and that after her demise, her minor son Vedagiri and his male descendants shall enjoy the same and in case, if there is no male descendants, her female descendants shall enjoy the same.
61. Based on the compromise decree, dated 17.10.1958 (Ex.B1), the respondents being the defendants have contended that the appellants cannot claim any semblance of right much less partition, in the properties allotted to Jayalakshmi Ammal in the above said compromise decree, excepting the properties allotted to Muthukrishna Naidu and Jayachandra Naidu, under Schedule I and II respectively.
62. The first contention, which was advanced on behalf of the appellants is that the first appellant/1st plaintiff Pottiammal was not a party to the compromise decree and she never signed in the joint compromise petition and hence, the compromise decree is not a valid one.
63. The second contention is that the compromise decree was obtained in collusion of Jayalakshmi Ammal, Muthukrishna Naidu and Jayachandra Naidu and since, the compromise decree was obtained fraudulently, in the absence of Pottiammal, it will not bind upon the appellants/plaintiffs.
64. The third contention, which was projected by the appellants/plaintiffs is that Jayalakshmi Ammal was not having any independent source of income to purchase all the properties in her name exclusively and that the properties are ancestral properties.
65. Fourthly, it was contended that the appellants/plaintiffs, being the wife and children of Jayachandra Naidu and since Muthukrishna Naidu was the manager of the joint family, they are entitled to half share in the suit properties and that the remaining half share shall go to Jayalakshmi Ammal and her children.
66. Under this circumstance, the following points arise for the consideration of this court:-
(i)Whether the compromise decree under Ex.B1, dated 17.10.1958 and made in O.S.No.39 of 1958 will not bind upon the appellants/plaintiffs?
(ii)Whether the suit schedule properties are available for partition?
(iii)If it is so, whether the appellants/plaintiffs are entitled to claim half share as prayed for in the suit?
67.Point No.1:-
Admittedly, the compromise decree, under Ex.B1, dated 17.10.1958 has not been challenged either by Muthukrishna Naidu or by Jayachandra Naidu or by Pottiammal, who are the defendants 1 to 3 in the suit in O.S.No.39 of 1958 and hence, it has become final.
68. The compromise decree, under Ex.B1, has been passed by the competent court of law and since, it has not been challenged till date, it will definitely bind the parties concerned and it cannot be heard to say that the compromise decree under Ex.B1 has not been accepted or acted upon.
69. It is pertinent to note here that the plaintiffs in the suit in O.S.No.329 of 2004 have only sought for the relief of passing a preliminary decree for partition in respect of their half share over the schedule mentioned properties.
70. Mr.S.Saravana Kumar, the learned counsel appearing for the appellants/plaintiffs has adverted to that the compromise decree could not be attached with much weight.
71. He has also added that the trial court solely based on the compromise decree, had proceeded to decree the suit without even considering the evidence available in favour of the appellants/plaintiffs.
72. While advancing his argument, Mr.S.Saravanakumar, the learned counsel appearing for the appellants/plaintiffs has also made reference to the terms of the compromise decree, Ex.B1 and submitted that under Schedule I, only eight items were given to Muthukrishna Naidu. On the other hand, 43 items were given to Jayalakshmi Ammal under Schedule-A therein.
73. He has also submitted that the allotment of the lands, under schedules I and II as well as under 'A' schedule, under Ex.B1 were not in proportionate with each other and that the manner of allotment of shares itself would lead to presume that the compromise decree, under Ex.B1, could have been obtained in collusion between Jayalakshmi Ammal, Muthukrishna Naidu and Jayachandra Naidu, behind the back of Pottiammal, who is the third defendant in the suit in O.S.No.39 of 1959.
74. This portion of argument is not able to be countenanced. Because, even during the life time of Muthukrishna Naidu and Jayachandra Naidu, they never chosen to challenge the compromise decree. In fact, it appears from the records that they had been dealt with certain properties allotted to their respective shares under Schedule I and II. Even, it is manifested from the records that Jayalakshmi Ammal had also been dealt with certain properties allotted to her share. The acquiescence on the part of the appellants/plaintiffs, even on the part of Muthukrishna Naidu and Jayachandra Naidu, having been allowed the compromise decree unchallenged till date, it is not now open for the appellants/plaintiffs to come and say that it will not bind upon them. Their prolonged silence, passivity and inaction, have made Ex.B1, compromise decree to become valid and hold good, even today and therefore, their contention that Ex.B1, compromise decree would not bind upon them is not discernible.
75. It is also quite relevant to note here that the plaint schedule in O.S.No.329 of 2004, does not contain the properties that were given to the 2nd defendant Muthukrishna Naidu and his son Jayachandra Naidu under Schedule I and II of the compromise decree passed in O.S.No.39 of 1958.
76. It is the specific contention of the respondents/defendants that the suit properties are the absolute properties of Jayalakshmi Ammal, as she had purchased them, out of her own savings, borrowings and contributions received from her parents or gifted by them and that she had been in possession and enjoyment of the same and the appellants/plaintiffs, therefore, have absolutely no interest in the suit properties and they were never in possession thereof.
77. It is also the contention of the respondents/defendants that Jayalakshmi Ammal was also carrying on business of milk and was having independent source of income.
78. It is the further contention of the respondents/defendants that some of the properties described in the plaint were purchased by Muthukrishna Naidu, out of his own funds and savings and they were his separate properties. They have also contended that there was no ancestral nucleus and hence, the said properties were never treated as joint family properties.
79. It is also the contention of the respondents/defendants that the suit, as framed without a prayer for setting aside the compromise decree in O.S.No.39 of 1958, is not maintainable.
80. In this regard, Mr.S.Saravanakumar, the learned counsel appearing for the appellants/plaintiffs has submitted that there is nothing to indicate that Muthukrishna Naidu was having independent source of income.
81. He has also added that the first defendant (since deceased), Jayalakshmi Ammal was aged about 16 years, at the time of her marriage with Muthukrishna Naidu and most of the properties were settled in favour of Jayalakshmi Ammal by Muthukrishna Naidu in the year 1958. He has also added that Muthukrishna Naidu had also dealt with the properties by mortgaging them along with his son Jayachandra Naidu.
82. He has also canvassed that Muthukrishna Naidu had executed three settlement deeds in favour of Indirani (D4), Rani (D3) and Rajeswarai (D5) under Exs.B114, 115 and 116 respectively and the properties were also given to Vedagiri and Jayachandra Naidu and that if at all, the compromise decree under Ex.B1 in O.S.No.39 of 1958 was given effect to, the above said settlement deeds under Exs.B114, 115 and B116 would not have been executed by Muthukrishna Naidu and therefore, Mr.S.Saravanakumar, the learned counsel appearing for the appellants/plaintiffs has reiterated his earlier submission that Ex.B1, compromise decree, did not assume much importance.
83. He has further argued that the 5th defendant, Rajeshwari, who is the daughter of Jayalakshmi Ammal, born through Muthukrishna Naidu, had admitted in her written statement that all the properties were the ancestral properties of Muthukrishna Naidu and that her mother Jayalakshmi Ammal (D1) was not having any exclusive right over the same.
84. Mr.S.Saravanakumar, the learned counsel appearing for the appellants/plaintiffs, while advancing his argument has also referred to paragraph Nos.4 and 5 of the plaint in the suit in O.S.No.329 of 2004 and paragraph 4 of the written statement filed by Jayalakshmi Ammal (D1) and paragraph 6 of the written statement filed by the 5th defendant, Rajeshwari.
85. In para 4 of the plaint in O.S.No.329 of 2004, the appellants/plaintiffs have contended that the compromise decree in O.S.No.39 of 1958, dated 17.10.1958 was a collusive decree, which was neither accepted nor acted upon and as such, it was not binding upon them. They have also contended that the properties that are described in the schedule are the joint family properties and that the appellants/plaintiffs are in joint possession of the said properties.
86. They have also contended that they were put to understand that Muthukrishna Naidu had executed a settlement deed on 14.9.1984 with regard to some of the items of the joint family properties in favour of plaintiffs 2 to 5, which was neither accepted nor acted upon, as it is a shame and void settlement deed.
87. As far as the documents under Exs.B114, 115 and 116 are concerned, it is imperative on the part of this court, to delve deep and to explore as to what are all the properties settled by Muthukrishna Naidu in favour of defendants 3 to 6.
88. Ex.B114 is the certified registration copy of the settlement deed, dated 09.12.1983 and it appears to have been executed by Muthukrishna Naidu(D2) in favour of Indirani (D4), in respect of 80 cents, out of 2 acres and 50 cents comprised in Survey No.226/20.
89. Ex.A13 is the certified registration copy of sale deed, dated 15.07.1959 and it discloses that the above said property viz., 0.63 cents and 0.17 cents in two compartments comprised in S.No.226/20, out of two acres and 50 cents along with other properties specified therein, were purchased by Muthukrishna Naidu from one Ventaraji Naidu.
90. D.W.2, Indirani has also spoken to about this document under Ex.B114 and stated that the settlement deed under Ex.B114 was executed by her father Muthukrishna Naidu in respect of the properties specified therein, which was purchased by him, in the year 1959 from Ventaraji Naidu.
91. On verification of the properties specified in 'A' schedule, under Ex.B1 compromise decree, dated 17.10.1958, it reveals that one acre 25 cents in S.No.226/20 was allotted to Jayalakshmi Ammal (D1). It also reveals that the total extent of 2 acres and 50 cents has been specified in Ex.B114 as well as in Ex.A13.
92. Ex.A13 ratifies that the total extent of Survey No.226/20 is 2.50 acres. Out of which, Muthukrishna Naidu had purchased 80 cents from Ventaraji Naidu along with other properties specified therein. Hence, it cannot be heard to say that the properties given under Ex.B114, settlement deed in favour of Indirani (D4) is a joint family property.
93. Further, it is manifested that this property viz., 80 cents comprised in S.No.226/20 does not have any nexus with item No.19 of schedule 'A' allotted to Jayalakshmi Ammal under Ex.B1. Because, out of 2 acres 50 cents, one acre 25 cents alone was allotted to Jayalakshmi Ammal and from the remaining 1 acre 25 cents, 80 cents was purchased by Muthukrishna Naidu under Ex.A13. Since that 80 cents were the self-acquired property of Muthukrishna Naidu, he was having exclusive right to deal with that property and only under this capacity, he had executed the settlement deed under Ex.B114 in favour Defendant No.4, and it cannot therefore be questioned in this suit.
94. On coming to Ex.B115, the certified registration copy of the settlement deed, dated 9.12.1983, executed by Muthukrishna Naidu(D2) in favour of Rani, it reveals that totally 48 cents was settled in favour of Rani under this document. This area of 48 cents encompasses in two survey numbers viz., S.No.40/4, measuring 24 cents and S.No.224/1 measuring another 24 cents.
95. Ex.A13 would go to show that these two properties, measuring each 24 cents, comprised in S.Nos.40/4 and 224/1 respectively had been purchased by Muthukrishna Naidu along with other properties specified therein from one Ventaraju Naidu. Item No.20 of 'A' schedule properties allotted to Jayalakshmi Ammal under Ex.B1 compromise decree, dated 17.10.1958 has been shown as 12 cents, out of 0.24 cents comprised in Dry S.No.40/4.
96. As discussed earlier, 0.24 cents in S.No.40/4 seems to have been purchased by Muthukrishna Naidu in the year 1959. In the suit O.S.No.39 of 1959 the 'A' schedule 12 cents, out of 24 cents in S.No.40/4 has been shown as item No.20. This has also been allotted to Jayalakshmi Ammal under Ex.B1.
97. It is not made clear, as to whether the whole extent in S.No.40/4 measures 24 cents or more. Because, in the year 1959 under Ex.A13, Muthukrishna Naidu had purchased 0.24 cents in S.No.40/4. If the entire extent in S.No.40/4 measures 24 cents, how Jayalakshmi Ammal could have been in possession and enjoyment of 12 cents in the same survey number i.e. S.No.40/4 even in the year 1959. But this question has not been raised either by the appellants/plaintiffs or by the respondents/defendants. However, the appellants have miserably failed to show that this property also form part of the joint family properties.
98. Ex.B.116 is also the certified registration copy of the settlement deed, dated 19.12.1983 and it appears to have been executed by Muthukrishna Naidu in favour of Rajeshwari. Under this document, four items of properties were given to Rajeshwari (D5). They are:-
(i)S.No.112 in Alathur village 30 cents, out of 0.59 cents comprised in Nanja Survey No.129.
(ii)0.77 cents comprised in Nanja S.No.196/1.
(iii)0.10 cents, out of 0.60 cents in S.No.106.
(iv)House site measuring 0.10 cents only (east-west 135 feet north south 32 feet) comprised in S.No.107/6.
99. It is significant to note here that the first item in S.No.129 measuring 0.59 cents was allotted to Muthukrishna Naidu in schedule I, under Ex.B1 compromise decree. Out of 50 cents, he had settled 30 cents in favour of his daughter Rajewari (D5). The 2nd item comprised in S.No.196/1 measuring 0.77 cents has also been allotted to Muthukrishna Naidu in the first schedule under Ex.B1. Out of the total extent of 0.60 cents in S.No.106, he had settled 10 cents in favour of D5.
100. It is also quite relevant to note here that an extent of 0.02 cents, out of 60 cents was allotted to Jayalakshmi Ammal, which according to her, was purchased by her. 0.10 cents, out of 60 cents in S.No.106 and 0.10 cents in S.No.107/6 have been purchased by Muthukrishna Naidu under Ex.A13 from Ventraji Naidu. The property in serial No.39 of 'A' schedule in Ex.B1 was allotted to Jayalakshmi Ammal. This item is comprised in the same survey No.107/6 with different boundaries. Therefore, these properties cannot be described as the joint family properties.
101. This court also would like to place it on record that Muthukrishna Naidu had executed the settlement deed Ex.A8, dated 9.12.1983 in favour of the 6th defendant Vedagiri in respect of item Nos.4 and 5 of schedule I under Ex.B1 compromise decree in O.S.No.39 of 1958 and also in respect of Sub-serial Nos.11, 13 to 17 in Serial No.35 of Patta No.227 of schedule mentioned properties, which he got under Ex.A13.
102. Ex.A8 would go to establish that Ex.B1 compromise decree in O.S.No.39 of 1958 was accepted and acted upon and therefore, without any hesitation, this court can hold that the compromise decree Ex.B1 will definitely bind upon the appellants/plaintiffs.
103. That part, it has been substantiated under Ex.B1 compromise decree, that in the year 1958, the first appellant/first plaintiff Pottiammal was not having any right at the time of passing of decree in O.S.No.39 of 1958. As observed earlier, in the present suit in O.S.No.239 of 2004, the appellants/plaintiffs have not sought for the relief of setting aside the decree in O.S.No.39 of 1958.
104. In paragraph 4 of the plaint in O.S.No.329 of 2004, the appellants/plaintiffs have stated that there was a collusive decree obtained on 17.10.1958, which was neither accepted nor acted upon and since the compromise decree (Ex.B1) in O.S.No.39 of 1958 was collusive in nature, it is not binding upon them.
105. Having come forward with a definite plea that the decree passed in O.S.No.39 of 1958 was obtained by collusion with Jalayalakshmi Ammal, Muthukrishna Naidu and Jayachandra Naidu, the onus is rested upon the shoulder of the appellants/plaintiffs to substantiate their contention. But, unfortunately, they have failed to prove the same. Fortunately, Pottiammal does not have any independent claim, as she is the heir of Jayachandras Naidu, (who is the party to the compromise decree in O.S.No.39 of 1958).
106. In this connection, Mr.T.R.Rajaraman, the learned counsel appearing for the respondents/defendants has submitted that the properties were purchased in the name of Jayalakshmi Ammal and since the property is merely in the name of Jayalakshmi Ammal, there was no binami transaction and there is also no such plea taken by the appellants/plaintiffs.
107. In para 19 of the judgment of the trial court, the learned trial Judge has unambiguously held that the first plaintiff Pottiammal, who is the wife of Jayachandra Naidu and her son viz., plaintiffs 2 to 5 are not having direct right to the properties relating to the second defendant Muthukrishna Naidu. Instead the right in respect of those properties, accrued to the plaintiffs, as they are the wife and children of Jayachandra Naidu, who is the son of Muthukrishna Naidu. Under this circumstance, they cannot claim that the compromise decree under Ex.B1, would not bind upon them.
108. The learned trial Judge has also held that there is nothing to suggest that the above said compromise decree was obtained by collusion. Under this circumstance, he has concluded that Ex.B1, compromise decree passed in O.S.No.39 of 1958 will definitely bind upon the plaintiffs and hence, their claim of partition, in the suit schedule properties, is in total negation of the terms of compromise decree under Ex.B1.
109. It is obvious to note here that Jayachandra Naidu had created a mortgage under Ex.B91 in respect of 66 Cents comprised in S.No.130/2 which has been shown as first item of second schedule to Ex.B1 compromise decree and thereafter, he had redeemed the mortgage under Ex.B92. Hence, these two documents would crystallise the fact that Ex.B1 compromise decree was accepted and acted upon.
110. It is also pertinent to note here that last item of the property comprised in S.No.86/1B, which was allotted to Jayachandra Naidu under schedule II to the compromise decree, was sold out by the appellants/plaintiffs under Ex.B93. This document under Ex.B93 would also falsify the claim of the appellants/plaintiffs and therefore, the claim of collusion is not able to be countenanced and this court therefore endorses the finding of the learned trial Judge to say that Ex.B1 compromise decree passed in O.S.39 of 1958 will bind upon the heirs of Jayachandra Naidu viz., the appellants/plaintiffs.
111. On the same line, Mr.T.R.Rajaraman, the learned counsel appearing for the respondents/defendants has submitted that Ex.B1 is a decree passed by a competent court of law and that the first appellant/1st plaintiff Pottiammal was made as a party only because she was trying to interfere with Jayalakshmi Ammal's possession of the property at that time.
112. He has also adverted to that at the time of passing of compromise decree under Ex.B1, dated 17.10.1958 the appellants/plaintiffs in O.S.No.239 of 2004 were not present and this fact has also been admitted by PW1 (2nd plaintiff) in his evidence.
113. Point No.2:- In the plaint in O.S.No.239 of 2004 the appellants/plaintiffs have placed other items of properties in the claim of partition, which contains patta Nos.306, 179, 265, 259, 243, 227 etc.,
(i)Patta No.306 contains eight items of properties.
(ii)Patta No.179 contains three items.
(iii)Patta No.265 contains only one item.
(iv)Similarly Patta No.259 contains only one item.
(v)Patta No.243 contains four items.
(vi)Where as Patta No.227 contains 36 items, of which, Serial No.35 contains 19 sub items and serial No.36 contained 8 sub-items of properties.
114. Having come forward with the suit for partition in respect of large number of properties, it is their bounden duty to establish that they are entitled to get half share.
115. At the out set, this court would like to place it on record, that there is absolutely no evidence adduced by the appellants/plaintiffs in O.S.No.329 of 2004 to establish that Muthukrishna Naidu had sufficient ancestral nucleus to enable him to purchase the properties, either in his name or in the name of his second wife Jayalakshmi Ammal. In fact item No.32 in patta No.227, in which the house was constructed by Jayalakshmi Ammal in Muthukrishnan Street, T.Nagar, Madras was purchased by her from Muthukrishna Naidu on 13.05.1937 under Ex.B14 for a sale consideration of Rs.500/- and it is substantiated that this purchase was made prior to her marriage with Muthukrishna Naidu.
116. As argued by Mr.T.R.Rajarajam, the learned counsel appearing for the respondents/defendants the following documents, which were produced before the trial court would go to establish that the said property and other properties were always treated as that of Jayalakshmi Ammal.
Ex.B.37 to B.41 House Tax Demand Notices to Jayalakshmi Ammal Ex.B42 to B.55 Receipts for payment of water supply and sewage charges given to Jayalashmi Ammal for Urban Land Tax Ex.B.70 to B.72 Demand Notices to Jayalakshmi Ammal for Urban Land Tax Ex.B73 to B.77 Urban Land Tax receipts in her name Ex.B79 to B.89 Receipts given by TNEB to Jayalkshmi Ammal Ex.B15 to B.16 Settlement Deeds executed by Jayakshmi Ammal on 27.08.1982 settling the house and site on 4th and 6th defendants Ex.B90 Affidavit of Muthukrishna Naidu dated 30.11.1960 before the Honorary Presidency Magistrate Admitting the owner ship of Jayalakshmi ammal to the said property Ex.B96, dated 24.02.1999 Power of Attorney Executed by Jayalakshmi Ammal and defendants 4 and 6 in favour of 7th defendant for constructing a house and shopping complex.
Ex.B94 and B.95 Order passed by Hon'ble High Court, Madras On application in C.S.No.465 of 1999 filed by the 5th defendant, questioning the competency of Jayalakshmi Ammal to entrust the work to 7th defendant. The High court held that Jayalakshmi Ammal alone has got the right to deal with the property Ex.B.21, B.112 & B.118, B2 and B3 The various documents in which she acquired the other properties in her name with her own funds.
Ex.B8, 9, 20 and B.11 Direct purchase by Jayalakshmi Ammal B.4 & B5 Seeetammal release in favour of daughter Jayalakshmi Ammal.
Ex.B109 Sreedanam given to Jayalakshmi Ammal by parents Chellakrishna Naidu and Seetammal.
Ex.B97 to B.99 Patta Pass Books in respect of lands standing in the name of Jayalakshmi Ammal in Alathur.
Ex.B100 Notice issued to her under Sec.9(2) of the survey and boundaries Act dated 30.11.1986 in respect of Thenur lands.
Ex.B113 Adangal extract for the lands in Thenur village for Fasli 1394 and 1407.
117. He has also continued that Muthukrishna Naidu and Jayachandran Naidu were in possession of their respective lands given to them under Ex.B1 and they had also dealt with the same. Ex.B91, dated 22.08.1981 is a simple mortgage executed by Muthukrishna Naidu and his son Jayachandra Naidu in favour of one Duraisamy Naidu with regard to some of the items given to Jayachandra Naidu under Ex.B1, decree.
118. As discussed in the earlier paragraphs, this mortgage was redeemed by Muthukrishna Naidu and his grand son Murugesan (2nd plaintiff) son of Jayachandra Naidu, under a registered receipt, Ex.B92 dated 31.07.1990. Ex.B93 discloses that the plaintiffs viz., Pottiammal and her sons Murugesan, Harikrishnan, Sarangapani and Gopalakrishnan had sold 0.55 Cents comprised in S.No.86/1B in favour of Venkatramanan, son of Jayaraman. It further discloses that the total extent of S.No.86/1B is 0.22.5 Hectare and out of which they had sold 0.55 Cents. It may be more relevant to note here that the last item of II Schedule in Ex.B1 compromise decree is 0.48 Cents comprised in S.No.86/1, which was allotted to Jayachandra Naidu, who is the husband of the first plaintiff Pottiammal and father of remaining plaintiffs. It is also relevant to note here that A-Schedule to Ex.B1 compromise decree was allotted to Jayalakshmi Ammal, wherein 38th item has been described as 0.48 Cents, comprised in S.No.86/1. From the above context it is made clear that Jayachandra Naidu was allotted only 0.48 Cents in S.No.86/1 and another 0.48 cents was allotted to Jayalakshmi Ammal in the same survey number. But, the plaintiffs have failed to state as to when S.No.86/1 was sub-divided as 86/1A and 86/1B and they have also failed to state as to how they have got 0.55 Cents in S.No.86/1B to be sold to Venkatramanan under Ex.B93. However, Ex.B93 and Ex.B120 Certificate issued by the learned Additional District Judge (Fast Track Court No.I), Chengelpet would go to show that those lands were in possession of Jayachandra Naidu.
119. Mr.T.R.Rajaraman, learned counsel for the respondents has further submitted that the properties were also dealt with by the parties on the basis of Ex.B1 comprise decree and under this circumstance, the present suit for partition is not maintainable and it was therefore rightly dismissed by the trial court, excepting only one item in S.No.219/5.
120. PW1 (1st appellant/2nd plaintiff) has stated in his evidence, that as per Ex.B1, compromise decree, no property was allotted to his father Jayachandra Naidu, as the said decree, had not come into force.
121. He has also stated that no division was effected in accordance with the compromise decree Ex.B1 and that the entire properties, were in possession and enjoyment of his grandfather Muthukrishna Naidu and even after Ex.B1, all the properties were enjoyed by him (Muthukrishna Naidu). On appraising his evidence, this court is of view that his evidence is absolutely false and is liable to be discarded.
122. In his cross examination, he has admitted that he could not differentiate between the properties belonged to his grand-father and the properties purchased in the latter stage. He has also stated that he did not know as to from whom, the lands were purchased and equally, he did not refer any of the sale deeds, under which the properties were purchased.
123. He has also admitted that he could not say as to on whose name, the properties were purchased and on whose name the patta was entered into.
124. On careful scrutinisation of the evidence of PW1, this court is of considered view that his evidence will not in any way helpful to their case.
125. On perusal of the judgment of the trial court, as it revealed from para 20, the learned trial Judge has observed that the plaintiffs have admitted that as per the amended plaint schedule, the properties specified in Serial Nos.1 to 8 in Patta No.306, Serial No.1 in patta No.259 and Serial Nos.3 and 4 in Patta No.243, Serial Nos.1, 3 to 7, 12, 13, 16, 21, 22, 25 and 26 and Serial Nos.28, 30, 31, 33 and the properties specified in Serial Nos.1 to 13 in Serial No.35 and 5 to 8 in Serial No.36 have been allotted to Jayalakshmi Ammal under Ex.B1 compromise decree, dated 17.10.1958.
126. Besides the above specified properties, the learned trial Judge has also observed in the same paragraph that at the time of advancing his arguments, the learned counsel appearing for the plaintiffs had produced a list containing 34 items of properties and submitted that the plaintiffs are having right to claim partition, in all 35 items of properties specified in the list. It is also revealed from the same paragraph i.e., in para 20, the defendants have contended that those properties are belonged to Jayalakshmi Ammal and not belonged to joint family properties and that the plaintiffs have no right to claim any partition over that property. Accordingly, the learned trial Judge seems to have made an empirical study and ultimately found as follows:-
(i)the property measuring 0.06.0 acres comprised in Survey No.118/B in Item No.1 in patta No.179 has been proved to be purchased by Jayalakshmi Ammal under Ex.B3, dated 1.11.1952. He has also found that she had purchased this property under Ex.B3, even prior to passing of compromise decree under Ex.B1.
(ii)the property measuring 0.09.5 ares comprised in Survey No.219/5 in patta No.179 seems to have been settled by Muthukrishna Naidu in favour of Jayalakshmi Ammal under Ex.B117, on 16.11.1989. He has also found that the defendants 2 to 6 in Ex.B15, i.e. the suit in O.S.No.25 of 2005 on the file of the learned District Munsif, Chengalpet have claimed that there were some ancestral properties for Muthukrishna Naidu in Alathur village. Under this circumstance, the trial court has found that the property, which was settled under Ex.B117 viz., survey No.219/5, measuring 0.09.5 ares must be construed to be the joint family property, as there was no evidence on behalf of the defendants to say that the said property was purchased by Muthukrishna Naidu, out of his own income. Hence, he has concluded that this property alone is available for partition.
(iii)The property measuring 0.05.5 acres comprised in Survey No.226/20A has been specified under item No.1 in patta No.265. It is pertinent to note here that this property measuring 1.25 acres, out of 2.50 acres has been shown as item No.19 in A-Schedule under Ex.B1. In this connection, the learned trial Judge has observed that the total extent of the property in Survey No.226/20A is 2.50 acres, of which 1.25 acres has been given to Jayalakshmi ammal under Ex.B1. In so fas as the remaining portion of 1.25 acres is concerned, there is no evidence on the part of the plaintiffs to show that it is the joint family property. Under this circumstance, the trial Judge has concluded that the plaintiffs have no right to claim partition over that property.
(iv)Apart from this, the learned trial Judge has also concluded that the property specified in Serial No.8 under patta No.227, comprised in Survey No.145/2 (correct survey No.115/2) and the other properties specified in Serial Nos.9, 11, 15, 17, 18, 19, 20, 23 and 24 are also not the joint family properties.
(v)Further, the trial Judge has observed that S.Nos.15,17,18,19,20,23 and 24 under patta No.227 have been given to Jayalakshmi Ammal by her mother Seethamal by way of release deed under Exs.B4 and B5. Similarly, the properties specified in S.Nos.14 to 18 under item No.35, have been purchased by Muthukrishna Naidu under Ex.B13, i.e. after Ex.B1, dated 15.07.1957 and settled in favour of his son Vedagiri (6th defendant) under Ex.B8.
(vi)S.No.13 in item No.35 has also been purchased by Muthukrishna Naidu under Ex.A13 and settled in favour of his daughter Indirani (4th defendant) under Ex.B114 settlement deed on 9.12.1993 and therefore, the trial judge has concluded that the plaintiffs are also not entitled to claim any share over those properties, as they are not the joint family properties.
(vii)Similarly, other properties specified in serial numbers 1 to 3 in item No.36 of the plaint schedule were found to have been purchased by Jayalakshmi Ammal.
127. In so far the above mentioned properties are concerned, the learned trial Judge has unambiguously found that the plaintiffs have not evinced any interest to produce any legal evidence to show that those properties are the joint family properties.
128. On careful appreciation of the evidences available on record, as rightly observed by the trial court, no evidence is forthcoming on the side of the plaintiffs to substantiate their claim that the remaining properties are the joint family properties.
129. Jayalakshmi Ammal, who is the plaintiff in O.S.No.330 of 2004 has sought the relief of declaration that the property measuring 1.48 Acres comprised in Wet S.No.140 along with the Well and 5 H.P.Motor pump set is that of her exclusive property. In this regard, she has contended that the defendants 2 to 5 (plaintiffs 2 to 5 in O.S.No.229 of 2004) have trespassed on the above said property and have been in unlawful possession from September 1984 onwards. She has also claimed recovery of possession and past and future profits.
130. In the said suit, she has also contended that the defendants 2 to 5 (plaintiffs 2 to 5 in the suit O.S.No.239 of 2004) have claimed that Muthukrishna Naidu, the first defendant in the said suit, had executed a settlement deed on 4.8.1994. In this connection, it is imperative on the part of this court, to refer the plaint in O.S.No.239 of 2004, in which the plaintiffs 2 to 5 (defendants 2 to 5 in O.S.No.330 of 2004) have contended in para 4 that It is understood that Muthukrishna Naidu had executed a settlement deed on 14.09.1984 with regard to some of the items of the joint family properties in favour of plaintiffs 2 to 5, which was neither accepted nor acted upon and it is a sham, and void settlement deed.
131. The admission of the defendants 2 to 5 in the suit in O.S.No.330 of 2004 (plaintiffs 2 to 5 in O.S.No.229 of 2004) itself would go to show that they have denied the execution of alleged settlement deed, dated 14.09.1984 by Muthukrishna Naidu.
132. Further, in the suit in O.S.No.330 of 2004 the defendants 2 to 5 (Plaintiffs 2 to 5 in O.S.No.229 of 2004), have contended in paragraph No.2 of their written statement, that they are the absolute owners of the schedule mentioned property, as they have got it under a registered settlement deed dated 14.09.1984. Apart from this, they have also contended that the settlement deed has been duly accepted and acted upon and that the plaintiff (Jayalakshmi Ammal) has no right or interest over the suit property.
133. On a harmonious reading of the averments made in the plaint in O.S.No.329 of 2004, particularly in para 4, and the written statement filed in O.S.No.330 of 2004, this court is of considered view that the stand taken by the defendants 2 to 5 (plaintiffs in O.S.No.329 of 2004), are conflicted and contradicted with each other and they cannot approbate and reprobate simultaneously. They must either accept the execution of the settlement deed by Muthukrishna Naidu on 14.09.1984 in respect of the schedule mentioned property in O.S.No.330 of 2004 or deny it in the suit O.S.No.329 of 2004 as they being plaintiffs.
134. In the suit O.S.No.330 of 2004 being the defendants they have failed to repudiate the same set of facts that the alleged settlement deed, dated 14.09.1984 which is a registered document was duly acted upon, and based on this document they became the absolute owner of the property. The different stand taken by the defendants in O.S.No.330 of 2004 (plaintiffs in O.S.No.329 of 2004) is not able to be countenanced.
135. Having regard to the related facts and circumstances, and on close scrutinisation of the evidences available on records and on considering the submissions made on behalf of both sides, this court has decided Point No.2 in favour of the respondents/defendants and concluded that the suit properties are not available for partition, excepting the property measuring 0.09.5 acres comprised in Survey No.219/5 in patta No.179 as decided by the trial court.
136. Point No.3:- Keeping in view of the findings given in Point Nos.1 and 2, this court finds that the appellants/plaintiffs are not entitled to any share much less half share in the suit properties.
137. In the result, the appeals viz., A.S.Nos.137 and 138 of 2006 are dismissed. The common judgment and decree, dated 24.09.2005 and made in O.S.Nos.329 and 330 of 2004 are confirmed. Three months time is given to surrender the suit property in O.S.No.330 of 2004 to fifth plaintiff therein along with a sum of Rs.4,000/- towards the past profit. Considering the nature of the suit and the relation-ship of the parties, there shall not be any order as to costs.
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