Madras High Court
Ramalingam vs Palaniyandi Mudaliar (Died) on 24 July, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.07.2013
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.No.909 of 1992
1. Ramalingam
2. Minor Manikandan
(By Next Friend 1st appellant)
3. Vijaya
4. Sankari
5. Vridhambal
6.Minor Vadivambal
(By Next Friend 1st appellant)
.. Appellants/ Plaintiffs
Vs.
1.Palaniyandi Mudaliar (Died)
2.Selvambal (Died)
3.Shanmugam .. 3rd Respondent
4.Balasubramaniam (Died)
5.Sambandam (Died)
6.Kaliaperumal .. 6th Respondent
7. Savithri
8. Ponnusami
9Thambuswamy .. Respondents 7 to 9
10.P.Vaidiyanathan
11.Vijaya
.. Respondents 10 and 11/
L.Rs. of the 4th respondent
12.Valarmathi
13.Muthiyyan
14.S.Amutha
.. Respondents 12 to 13/
L.Rs. of the 5th Respondent
Prayer:- Appeal Suit filed under Section 96 of Code of Civil Procedure against the Judgment and Decree dated 17.9.1991 rendered in O.S.No.178 of 1990 on the file of the Additional Subordinate Court, Cuddalore.
For appellants : Mr.N.C.Siddharth for
M/s.T.R.Rajagopalan and
T.R.Rajaraman
For respondents 3,6 to 9 : Ms.R.Meenal
J U D G E M E N T
The plaintiffs in O.S.No.178 of 1990 on the file of the Additional Subordinate Court, Cuddalore, are the appellants.
2. The appellants/ plaintiffs filed the suit for partition of 6/35th share in the suit properties and for mesne profits. The suit was dismissed and as against the same, the appeal is filed.
3. The case of the plaintiffs as seen from the plaint is as follows:- The 1st defendant Palaniandi Mudaliar had two wives and the 1st wife was Sivagami and the 2nd wife is Selvambal, the 2nd defendant. Through his 1st wife Sivagami he had a son by name Kaliaperumal, the 6th defendant and the plaintiffs are the children of Kaliyaperumal. The suit properties were purchased by the 1st defendant along with the 6th defendant and they were doing textile business, money lending and also conducted chit transactions and all the properties were purchased in the name of the 1st defendant as he happens to be the Kartha of the joint family. All the properties were treated as joint family properties and till February 1990 the relationship between the plaintiffs and the defendants were cordial and the 1st defendant was aged 85 years and he was not having good mental condition and he was not able to understand things and the 6th defendant and the plaintiffs are living separately and taking advantage of the same, the 2nd defendant in collusion with the defendants 1 to 5 is attempting to sell the properties of the joint family and they also entered into an agreement of sale with the 7th defendant in respect of Items 11 and 12 and a portion of Item 18 was sold to the 9th defendant and Item 27 was sold to the 8th defendant and those sales are not binding on the plaintiffs and the plaintiffs issued notice to the defendants 1 and 2 for partition and they sent a reply stating that the 6th defendant executed a release deed on 5.1.1972 and the release deed is not valid and the properties are the joint family properties and therefore the plaintiffs are having share by birth in those properties and the 6th defendant cannot execute the release deed relinquishing the rights of the plaintiffs and the said document dated 5.1.1972 is sham and nominal one and even assuming that the document is a valid document it has no legal force and therefore the properties are to be divided into 35 shares and the plaintiffs are entitled to six shares out of 35 shares.
4. The 1st defendant filed the statement and the same was adopted by the defendants 2 to 5 and 7 to 9 and the 6th defendant remained exparte. In the written statement filed by the 1st defendant, it is stated that the father of the 1st defendant owned only one acre and that was divided by the 1st defendant and his two brothers and each brother got 33 cents and the 1st defendant started textile business at the age of 15 years and purchased all the properties out of his self exertions and the 6th defendant never joined the 1st defendant in his business and all the properties are the separate properties of 1st defendant and the 6th defendant was residing separately from 1966 and he wanted some properties to be given to him and therefore a Panchayat was convened and in that Panchayat some properties were agreed to be given to the 6th defendant and release deed was executed on 5.1.1972 by which the 'A' schedule properties mentioned in the release deed were given to the 6th defendant and thereafter the 6th defendant had no connection with the business of the 1st defendant and his children through his 2nd wife and the plaintiffs cannot claim any share in the properties allotted to the 1st defendant and therefore the suit is liable to be dismissed.
5. The 2nd defendant filed additional statement stating that Item 23 was purchased by the 2nd defendant out of her own earnings and it is a separate property and from 1972 the defendants 1 to 5 are enjoying more than 12 years separately and they also perfected title by adverse possession and the release deed dated 5.1.1972 was acted upon and the 6th defendant got separated after the release deed and therefore the plaintiffs cannot claim any share in the enjoyment of the properties of defendants 1 to 5.
6. The 1st plaintiff filed reply statement stating that the 2nd defendant had no source of income and the properties purchased in her name also belonged to the joint family and the release deed dated 5.1.1972 is a sham and nominal document and no division had taken place and even assuming there was a division after the execution of the release deed there was blending thereafter and the properties were enjoyed by the plaintiffs and the defendants and hence the plaintiffs are entitled to claim partition.
7. On the basis of the pleadings the trial Court framed the following issues and they are as follows:
(1)Whether the plaintiffs are entitled to 6/35 shares and separate possession in the suit properties ? (2) Whether the release deed dated 5.1.1972 is sham and nominal and not binding on the plaintiffs ? (3)Whether the suit properties are joint family properties ?
(4)Whether the plaintiffs are entitled to future mesne profit as per Order 20 Rule 18 C.P.C., ?
(5)To what relief the plaintiffs are entitled ?
8. The plaintiffs examined three witness including the 1st plaintiff as PW1 and examined one Rajamanickam as PW2 who is also an attestor of Ex.B1 release deed and also examined one Arunachalam as PW3. The 2nd defendant examined herself as DW1 and also examined another attesting witness of Ex.B1 as DW2. On the side of the plaintiffs 53 Exhibits were marked and on the side of the defendants 17 Exhibits were marked.
9. The learned trial Judge answered Issue No.3 holding that the suit properties were the joint family properties of the 1st defendant and his sons except Item 23 purchased in the name of the 2nd defendant. The trial Court also held that the release deed dated 5.1.1972 executed by the 6th defendant is not a sham and nominal document and it is binding on the plaintiffs. Issue No.1 was answered against the plaintiffs holding that having regard to the execution of the release deed by the 6th defendant the father of the plaintiffs, they are not entitled to claim any partition. Accordingly, Issue Nos.4 and 5 were also answered against the plaintiffs. Aggrieved by the same, this appeal is filed.
10. The learned counsel for the appellants submitted that having regard to the finding of the trial Court that the suit properties except Item 23 are the joint family properties of the plaintiffs and defendants 1 to 6 ought to have held that the release deed Ex.B1 executed by the 6th defendant is a sham and nominal document and it is not binding on the plaintiffs and ought to have decreed the suit. He further submitted that PW2 has spoken about Ex.B1 and stated that the parties were living together even after the release deed that would also prove that there was no division among the members of the joint family and DW1 also admitted in evidence that the properties were enjoyed in common by all the parties and therefore having regard to the evidence of PW2 and DW1 the Court below ought to have held that the document Ex.B1 is a sham and nominal document and it was not acted upon. He further submitted that Exs.A10 to A25 the tax receipts produced by the plaintiffs would also prove that the properties were in joint enjoyment of the plaintiffs and defendants and if there had been partitioned as per Ex.B1 the parties would not have been in joint possession and enjoyment and those aspects were not properly appreciated by the Court below.
11. Considering the submissions of the learned counsel for the appellants the following point arises for consideration in the Appeal is:
Whether the release deed Ex.B1 dated 5.1.1972 is a sham and nominal document and was not acted upon as contended by the appellants/ plaintiffs ?
12. As stated supra, the trial Court has given a finding regarding the character of the properties and held that except Item 23 of the 'A' schedule properties are the joint family properties of the plaintiffs and the defendants. Therefore, in the absence of Ex.B1 release deed, the plaintiffs are entitled to claim partition. Therefore, we will have to see whether Ex.B1 release deed is a sham and nominal document as contended by the plaintiffs. As stated supra, a person competent to speak about Ex.B1 is the 6th defendant. He remained exparte. Therefore, we will have to see on the evidence of other witnesses to arrive at the conclusion whether Ex.B1 is a sham and nominal document. Before doing that exercise we will have to see the burden of proof regarding Ex.B1. When the plaintiffs alleged that Ex.B1 is a sham and nominal document and was not given effect to, it is for them to prove the same. As per Ex.B1, properties mentioned in the 'A' schedule in the document were given to the 6th defendant and the properties mentioned in the 'B' schedule in the document were given to the defendants 1, 3 to 5. Admittedly the 6th defendant is the 1st wife's son of 1st defendant and the defendants 3 to 5 are the children of the 1st defendant through the 2nd wife, the 2nd defendant. Except stating in the plaint and also reiterating the same in the arguments that Ex.B1 is a sham and nominal document and was not acted upon, no evidence has been given by the plaintiffs to prove that effect. PW1 in his evidence admitted that he was not aware of Ex.B1 release deed executed by his father. He was also not aware of whether his father was doing business along with the 1st defendant. Though he was having documents to prove that his father was doing business with his grand father namely the 1st defendant, no document was produced. He was also not aware whether the release deed came into force or not. He also admitted that the plaintiffs and the 6th defendant are separately living from the defendants 1 to 5. Therefore, it is seen from the evidence of PW1 he was not aware of the release deed and does not know whether the release deed came into effect or not. On the other hand, he also admitted in the chief examination that the release deed was not executed with an intention of giving release to those properties. Therefore, the plaintiffs admitted the execution of release deed and they have not produced any document or evidence to prove that the release deed was not acted upon and it was only a sham and nominal document. PW2 is one of the attesting witnesses to Ex.B1 and he also admitted that his signature in Ex.B1 but contended that without knowing the contents of the document he signed. He also admitted that the parties are living separately and he has dealing with the 1st defendant till 1970 and thereafter he was no dealing with the 1st defendant. Exs.A27 to A34 would also prove that PW2 was dealing with the 1st defendant till 1971. Ex.B1 is dated 5.1.1972 and PW2 has not stated that even after Ex.B1, the properties were enjoyed in common by all the parties. PW3 has not supported the case of the plaintiffs and he only stated that the sons of 1st defendant are living separately and he also admitted that they are enjoying the properties. The evidence of PW3 is only vague and that cannot be considered to decide whether Ex.B1 was acted upon or not. The tax receipts Exs.A10 to A25 are all in the name of the 1st defendant and PW1 also admitted in evidence that those documents were taken by him from the house of the 1st defendant. Therefore, those documents would not prove the joint possession of the properties by the plaintiffs after Ex.B1. Exs.A40 to A52 are the suit registers of various suits filed by the defendants 1, 2, 3, 4, 5 and 6 individually and those documents would not prove that the parties lived together after Ex.B1. According to me, the plaintiffs have to prove even after the execution of Ex.B1 release deed they lived together and Ex.B1 was not acted upon and they have not produced any proof to that effect. Further, the 6th defendant is entitled to enter into the release deed with his father by getting some properties from the joint family and the same can be questioned only when the plaintiffs are able to prove that by practicing fraud Ex.B1 was obtained from the 6th defendant or Ex.B1 was not a fair partition. No such plea was taken and the only plea taken by the plaintiffs was that it was not acted upon and it is only a sham and nominal document. As the plaintiffs failed to prove the same, the trial Court has rightly held that Ex.B1 release deed was executed by the 6th defendant and it was acted upon. Further, as stated supra, the 6th defendant remained exparte and he is competent to execute the release deed by getting some properties and considering all these aspects, the trial Court has rightly held that Ex.B1 release deed was executed by the 6th defendant and it was acted upon and the plaintiffs are bound by the same. Hence, I do not find any infirmity in the findings of the trial Court and the point for consideration is answered against the appellants/ plaintiffs.
13. In the result, the Judgement and Decree of the trial Court are confirmed and the Appeal is dismissed. No costs.
24.07.2013 kr.
Index : Yes Internet: Yes To The Additional Subordinate Judge, Additional Subordinate Court, Cuddalore.
R.S.RAMANATHAN, J.
kr A.S.No.909 of 1992 Dated: 24-07-2013