Madras High Court
Kuppuswamy vs Periannan And Others on 2 January, 1996
Equivalent citations: AIR1996MAD342, AIR 1996 MADRAS 342
JUDGMENT
1. This Appeal coming on for hearing on Tuesday the 21st day of November, 1995 and having stood over for consideration till this day, the Court delivered the following Judgment :--
Plaintiff is the appellant.
2. The averments in the plaint are as follows :--
The defendants 1 and 4 are sons of Chinnanna Gounder and they constituted a Hindu Joint Family to whom the suit properties belonged. The plaintiff is the son of the first defendant. The grandfather of the plaintiff is dead. In addition to his 1/3rd share, the first defendant is entitled to a share in his deceased father also. He is entitled to 5/12 shares in all. Third defendant is the daughter of Chinnanna Gounder. Defendants 5 to 26 are the co-owners of various survey numbers. Defendants 27 to 29 are the alienees from defendants 1 and 4 and their father. The plaintiff is the only son of the first defendant. The parents of the plaintiff lived together as husband and wife for 12 years after the marriage. The first defendant developed illicit intimacy with one Pavayammal and it resulted in quarrel between the first defendant and his wife. The plaintiff and his mother are living separately from the first defendant for the past 24 years. The first defendant got a daughter through Pavayammal. The plaintiff's mother for herself and as next friend of the plaintiff who was then a minor, fiied O. S. No. 343/70 for maintenance for herself and for partition of the plaintiff's share. During the pendency of the suit the plaintiff attained majority and he elected to proceed with the suit. On the objection taken by the first defendant, viz., relief of maintenance and relief of partition and separate possession cannot be clubbed together in a single suit, a preliminary issue was framed and it was decided in the said suit that both the reliefs cannot be clubbed together. The plaintiff and his mother decided to proceed with the relief of maintenance for the mother and reserved the right for the relief of partition and separate possession. The suit was decreed. The appeal preferred by the first defendant was dismissed with a modification regarding the quantum of maintenance. The present suit is for partition and separate possession of the plaintiff's share in the suit properties. The plaintiff is entitled to 5/24 share in the A Schedule properties, 'B' schedule properties were acquired by the first defendant from out of the income from the A schedule properties. Therefore, they are also liable for partition. Chinnanna Gounder gave up the properties to his sons even when he was alive and defendants 1 and 4 were enjoying the same separately. The first defendant is an agriculturist. The property was yielding good income. From out of the income, he has acquired B schedule properties. With a view to defraud the plaintiff and his mother, the first defendant has created fictitious debts and sold some of the properties. The sale in favour of the 27th defendant in respect of S. No. 224/3 is therefore, not binding. The sale in favour of the defendants 28 and 29 in respect of S. Nos. 180 and 383/2 is also not binding on the plaintiff. There is no necessity for selling the property. The sale has been effected after a Division in status had taken place. It is therefore, not valid and binding on the plaintiff. During the pendency of the prior suit O. S. No. 343/1970, at the instance of same panchayatdars, the first defendant gave possession of some properties to the plaintiff and the plaintiff was cultivating the same. But, he is not agreeable for amicable partition and hence the plaintiff has filed the suit.
3. The first defendant in his written statement contends as follows :--
The plaintiff was given half share out of the first defendant's share in the A schedule properties besides a sum of Rs. 1,000/- in cash. He was directed to discharge half share in the family debts to the tune of Rs. 30,000/-. A partition between the plaintiff and his father had already been taken place and they are in separate possession of their respective shares. The suit is therefore not maintainable. The 'B' schedule properties are self-acquired properties of the first defendant out of the debts incurred by him without any family funds and income from the A, schedule properties. The allegation that there was income from which the 'B' schedule properties were acquired by the first defendant is not true. The debts were incurred for acquiring properties even by Chinnanna Gounder. The sale deed in favour of defendants 27 to 29 was not only by the first defendant, but also by his father Chinnanna Gounder as well as his brother the 4th defendant. The sale deeds are binding on the plaintiff. The suit is liable to be dismissed, since already a partition has been effected between the plaintiff and the first defendant.
4. The 27th defendant in his written statement contends as follows:--
The 27th defendant is not aware of the proceedings in O. S. No. 343/1970. The first defendant has borrowed under promissory notes. The sale was effected to discharge the promissory notes and for legal necessity. The plaintiff has been benefitted by the sale transaction. It is false to say that the sale deed was after the division in status which is said to have taken place between the plaintiff and the first defendant. The plaintiff cannot claim any share in S. No. 224/B. If it is found that the sale deed is not binding on the plaintiff, in equity, this property may be allotted to the first defendant towards his share since the 27th defendant is a bona fide purchaser for value.
5. On the above pleadings, the learned Subordinate Judge, Salem has held that the 'B' Schedule properties are also properties purchased by the first defendant from out of the income from the joint family properties and that the allegation of the plaintiff that a division in status between the plaintiff and the first defendant has taken place is not correct and the sale in favour of the 27th defendant has been proved to be a true and valid one binding on the plaintiff and it was not proved so in so far as the alienations in favour of the defendants 28 and 29, and granted a decree for partition and separate possession as prayed for in respect of the suit properties except the item covered under the sale deed Ex. B. 3 in favour of the 27th defendant.
6. Aggrieved over the same, the plaintiff has come forward with this appeal.
7. The plaintiff who has filed the suit for partition and separate possession of the suit properties, even though was granted a preliminary decree as prayed for by him, except in respect of one of the properties which has been sold in favour of 27th defendant has come forward with this appeal since the trial Court has not accepted his case that the sale in favour of the 27th defendant is for valid reasons not binding on the plaintiff and also on the ground that the claim of the plaintiff that there is a division in status when he filed the suit along with his mother for maintenance as well as partition and separate possession and on that ground, the sale in favour of the 27th defendant was not binding on him, has not been accepted by the trial Court.
8. The learned counsel appearing for the appellant would argue that the plaintiff as well as his mother filed an Original Petition prior to the filing of O. S. No. 343/1973 and the same was ordered in their favour and since the plaintiff elected to continue the O.P., he became divided in status when he filed the said O. P. and therefore, the subsequent decision taken by the plaintiff to pursue the suit for partition cannot have any value. It was not the case of the plaintiff that prior to the filing of the suit, an O. P., was filed by the mother and son and the plaintiff has chosen to pursue the O. P. But, at any rate, the O. P., was for permitting the petitioners viz., mother and son to file the suit in forma pauperis. The subject matter of the O. P., is only the question whether the petitioners viz., Kuppu-swami the present plaintiff and his mother Thail alias Chinnannal have no means to pay the necessary court-fee to file the suit for partition. The petitioners' prayer in the O.P., is only to permit them to file the suit in forma pauperis and it is not a prayer seeking for partition of the joint family properties. The issue raised in the O. P., being whether the petitioners arc to be permitted to file the suit in forma pauperis or not, and since the said question was not the subject matter in the suit which was taken on file subsequently, I am of opinion that the argument of the learned counsel appearing for the appellant that the plaintiff elected to continue the O. P., and therefore, he became divided in status cannot be accepted. It is because of the reason that the question whether the plaintiff becomes divided in status does not depend upon the decision in the O. P., as to whether the petitioners are entitled to file the suit in forma pauperis.
9. The admitted facts are as follows:--
The plaintiff and his mother are living separately and they have filed the suit with a prayer for maintenance of the mother and for partition and separate possession of the joint family properties for the plaintiff. A specific issue has been raised as to whether the suit for partition for the plaintiff and maintenance for the second plaintiff can be combined in one single suit. The issue was enquired as a preliminary issue and the learned Subordinate Judge has held that the suit for partition for the first plaintiff and the suit for maintenance for the second plaintiff cannot be combined in one single suit by his Order dated 20th November, 1976. It may be noted that even prior to the said issue was given a finding, the plaintiff herein has filed an interlocutory application in I. A. No. 36/1975 to declare him as major and to remove his next friend viz., his mother and to permit him to continue the proceedings in his own name and the said application has also been allowed. The plaintiff who was declared as a major, as per the order in O. A. No. 36/1975, has elected to proceed with the suit only with regard to the maintenance claim made by the mother and he had joined in that effort with his mother and both of them have filed an application for amendment of the plaint, deleting the names of certain defendants from the suit and reserving the right for a separate action in regard to the relief of partition. The said application for amendment was allowed and the suit proceeded only on the question whether the mother of the plaintiff is entitled for maintenance and a maintenance decree was granted in favour of the mother in that suit. In the appeal preferred by the first defendant, the quantum alone has been reduced and there was no other modification in the maintenance decree.
10. The subject matter which was argued before this Court by the learned counsel appearing for the appellant is on the question whether the abandonment of his claim for partition by the appellant against the first defendant in the prior suit for partition filed by him along with his mother has resulted in a charge of his status. According to the learned counsel appearing for the appellant, giving up of the claim for partition made by the plaintiff, in O. S. No. 343/1970 has no effect on his status since it is a principle of law that a Division in status comes into effect on the date of the filing of the suit. The learned counsel appearing for the appellant has relied upon several decisions starting from Rama Rao v. Venkata Subbayya, AIR 1937 Mad 274 to the effect that filing of a suit by an adult coparcener is prima facie evidence of intention to separate if nothing is shown to contrary and such intention can be revoked before passing of decree and that a suit by gaurdian of a minor for partition operates as severance of status unless minor declines to adopt it on attaining majority. In the decision reported in Padasubhayya v. Akkamma, relied by the learned counsel appearing for the appellant, it has been held that severance of status comes in on the date when a suit for partition is instituted on behalf of minor coparcener. In the decision reported in Venkatta Reddi v. Lakshamma, , it has been held that a suit filed on behalf of a Hindu minor for partition of joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor.
11. The trial Court has considered all these decisions relied by the learned counsel appearing for the appellant and has extracted passages from the above decisions, and has held that the claim for partition was not pressed by the plaintiff and the plaintiff has elected to proceed with the suit in regard to the claim of maintenance alone for the mother and it is after attaining majority, indicating that he has abandoned the suit filed by him for partition and therefore he continues as an undivided member of the family and it must be deemed to have revoked the intention to separate and therefore, the contention of the plaintiff that a division in status had taken place after the filing of the earlier suit and therefore his share remains unaffected cannot be countenanced at all. In the decision reported in Nabisha Begum v. Arumuga Thevar , a similar question has come up for consideration before the Division Bench of this Court and the Division Bench has held as follows (at p. 277 of AIR) :--
"In a suit for partition where the preliminary decree itself has not been passed, the position is that though the next friend, in filing the suit for partition, has made an unequivocal declaration on behalf of the minor to separate, that declaration would not become an effective declaration because the law says that such a declaration is subject to approval by the Court. Till a preliminary decree is passed, the stage of the Court approving or disapproving the declaration made by the next friend of the minor would not arise. In such a case, when the minor on attaining majority, abandons the suit, the position would be similar to a case where the Court holds that it is not in the interests of the minor to separate and refuses to grant a preliminary decree."
I am of opinion that the judgment of the trial Court is in accordance with the ratio laid down by the Division Bench of this Court in the above decision and the trial Court has also extracted portions of the above judgment before coming to the decision that the contention of the plaintiff that a division in status had taken place and therefore his share in the property covered in the sale deed in favour of the 27th defendant nominee remained un affected, cannot be countenanced at all. There is nothing to interfere with the said finding.
12. The next question that has to be considered is whether the sale in favour of the 27th defendant is valid and binding on the plaintiff. The sale deed in favour of the 27th the defendant under Ex. B. 3, has been executed by the first defendant, his father Chinnanna Gounder and his brother, the fourth defendant herein. The creditals in the sale deed reveals that it was executed to discharge the anterior debts of Chinnanna Gounder under a promissory note in favour of the 27th defendant and for discharging another debt incurred by Chinnanna Gounder in favour of one Kunjan alias Pongayya Gounder for Rs. 10,000/- and the remaining amount was paid in cash. For proving that the promissory notes were genuine documents, the 27th defendant has examined D. W. 2 an attestor to Ex. B. 4, and D. W. 3, an attestor to Ex. B. 1. Ex. B. 1, is the discharged promissory note executed by Chinnanna Gounder in favour of Kandasami Gounder. Ex. B. 4 is the discharged promissory note executed by Chinnanna Gounder in favour of Kunjan alias Pongayya Gounder. The attestors to these two documents have been cross examined at length, but, yet, it has not been established by the plaintiff that the two promissory notes were not genuine documents. The evidence of D. Ws. 1, 2 and 3 establishes that the debt incurred by Chinnanna Gounder has been discharged by the sale in favour of the 27th defendant and therefore, it is binding on the plaintiff. The plaintiff who alleges that the debt is not valid and binding on him, has not placed sufficient materials to accept his theory. The learned counsel appearing for the plaintiff appellant has argued that Pongayya Gounder was alive at the time of trial and yet he was not examined and there is also no valid reason given and therefore, it cannot be stated that the promissory note under Ex B. 4, is for valid consideration. An attestor to the promissory note has been examined by the 27th defendant. If the promissory note is not true and the name of Pongayya Gounder was used by the 27th defendant, the plaintiff who pleads that the debt is not true and binding on him could have examined Pongayya Gounder to show that it is not a genuine debt. Therefore, the argument of the learned counsel appearing for the appellant that it cannot be stated that the sale deed executed by Chinnanna Gounder and his two sons is for valid purposes is not tenable.
13. The learned counsel appearing for the 27th defendant would on the other hand argue that he had purchased only a very small extent of land under Ex.B.3 for valid consideration and he is a bona fide purchaser for value and that even assuming that the sale is not valid, at least in equity, the property purchased by the 27th defendant may be allotted to the share of the first defendant. The learned counsel appearing for the appellant would argue that equity can be claimed only if the plaintiff continues as a joint family member and as a matter of right, he cannot claim any equity. Our discussion supra, has resulted in the conclusion that by opting not to pursue the suit for.partition and separate possession after becoming major, the claim of the plaintiff that he is divided in status has to be negatived. When this claim is negatived, it goes without saying that the plaintiff continues as a joint family member. It is not necessary that there must be any expression for re-union. The plaintiff having abandoned his claim for partition, he is to be held as a member of his joint family and therefore the argument of the learned counsel appearing for the 27th respondent that the property purchased by the 27th defendant can be allotted to the share of the first defendant cannot be upheld, is without merits. But, in the present case, that question of allotting the property purchased by the 27th defendant in favour of the first defendant in equity does not arise since the evidence has disclosed that the sale in favour of the 27th defendant is valid and binding on the plaintiff. In that view, I am of opinion that there is no necessity for us to go into the question whether the property purchased by 27th defendant has to be allotted to the share of the first defendant in equity. Considering all these aspects. I am of opinion that the appeal is without merits and is liable to be dismissed.
14. In the result, the appeal is dismissed. No costs.
15. Appeal dismissed.