Madras High Court
S.G.Subburaj vs Gangaiah Naicker .. 1St on 28 September, 2010
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/09/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.107 of 2010 & SA(MD)No.108 of 2010 S.G.Subburaj .. Appellant/1st defendant in SA.No.107 of 2010 S.G.Subburaj .. Appellant/Plaintiff in SA.No.108 of 2010 Vs. Gangaiah Naicker .. 1st Respondent/Plaintiff G.Viajayakumar V.Marithai .. Respondents/Defendants 2 & 3 (SA.No.107/2010) S.Gangaihah .. Respondent/Defendant (SA.No.108 of 2010) Second Appeals filed under section 100 of CPC against the Judgment and decree dated 23.09.2005 passed in Appeal Suit Nos.66 and 65 of 2004 by the Sub Court, Sivakasi confirming the Judgment and decree dated 17.11.2004 passed in Original Suit Nos.148 and 72 of 2004 by the District Munsif Court, Sivakasi. !For Appellant ... Mr.J.Sureshkumar (both appeals) ^For R - 1 in (SA.No.107/10 & Respondent in SA.No.108/10) ... Mr.V.Nagarajan :COMMON JUDGMENT
The undaunted and also inexorable son has challenged the alleged right of his father over the suit property by way of filing these second appeals against the concurrent Judgments and decrees passed in passed in Original Suit Nos.148 and 72 of 2004 by the District Munsif Court, Sivakasi and in Appeal Suit Nos.66 and 65 of 2004 by the Sub Court, Sivakasi.
2. The appellant in both the second appeals as plaintiff has instituted Original Suit No.72 of 2004 on the file of the trial Court for the reliefs of declaration and recovery of possession, wherein the respondent in Second Appeal No.108 of 2010 (first respondent in Second Appeal No.107 of 2010) has been shown as sole defendant.
3. It is averred in the plaint filed in Original Suit No.72 of 2004 that the suit property is situate in Alangulam village. The defendant is the father of the plaintiff. The suit property has been purchased by the paternal grandfather of the plaintiff viz., Subba Naicker under a registered sale deed dated 18.07.1969. Since then the said Subba Naicker has enjoyed the suit property and he executed a settlement deed dated 27.08.1986 in respect of the suit property in favour of his daughter by name Saraswathi Ammal and in favour of Vijayakumar who is none other than his grand son and also in favour of grand daughter by name Marithai. The said settlement deed has come into effect. The plaintiff has purchased the suit property under a registered sale deed dated 30.10.2000 for a valid consideration. The defendant is none other than the father of the plaintiff. Due to misunderstanding between the plaintiff and defendant, the defendant has unlawfully entered into the suit property. The plaintiff and his predecessor in title has had enjoyed the suit property to the knowledge of the defendant and thereby prescribed title to the same by adverse possession. Under the said circumstances the present suit has been instituted for the reliefs of declaration and recovery of possession.
4. In the written statement filed on the side of the defendant, it is averred that the suit property has been purchased by Subba Naicker, father of the defendant and paternal grandfather of the plaintiff under a registered sale deed dated 18.07.1969. The suit property and some other family properties have already been divided and in order to encrust the partition which has taken place amongst sharers, a deed has come into existence on 15.12.1982, wherein it is stated that the suit property has been allotted to the share of the defendant. It is false to say that the said Subba Naicker has executed a settlement deed on 27.08.1986. It is also equally false to say that the plaintiff has purchased the suit property under a registered sale deed dated 30.10.2000. The plaintiff has to prove the plea of adverse possession. The plaintiff has taken the suit property on lease from the defendant by way of executing a lease deed dated 16.05.1994. The plaintiff is not entitled to get the reliefs sought for in the plaint. There is no merit in the suit and the same deserves to be dismissed.
5. The respondent in Second Appeal No.108 of 2010 and first respondent in Second Appeal No.107 of 2010 as plaintiff has instituted Original Suit No.148 of 2004 for the reliefs of declaration and perpetual injunction.
6. In the plaint filed in Original Suit No.148 of 2004 it is averred that the suit property and some other properties have been purchased by the father of the plaintiff by name Subba Naicker under a registered sale deed dated 18.07.1969. The suit property has been described as 'ABCD' in the plaint plan and the same has been allotted to the plaintiff exclusively. The plaintiff is in possession and enjoyment of the same and he conducted a hotel in the suit property for some time under the name and style of Saravana Coffee Hotel and he also conducted a Javuli Store. Since the suit property has been allotted to the share of the plaintiff, a partition chit has come into existence on 15.02.1982. In the suit property the first defendant has run cable TV operations by way of executing a lease deed dated 16.05.1994. The defendants are not having any manner of right, title and interest over the suit property. Now the first defendant seems to have purchased the suit property under a registered sale deed dated 30.10.2000. Since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff and since the defendants 2 and 3 have executed the sale deed dated 30.10.2000 the present suit has been instituted for the reliefs of declaration and perpetual injunction.
7. In the written statement filed on the side of the first defendant, it is averred that the relationship mentioned in the plaint is correct and the suit property and some other properties have been purchased by Subba Naicker under a registered sale deed dated 18.07.1969. It is false to say that the suit property has been allotted to the share of the plaintiff and subsequently a partition chit has come into existence on 15.12.1982. The original owner of the suit property by name Subba Naicker has executed a settlement deed dated 27.08.1986 in favour of the defendants 2 and 3 and they subsequently sold the suit property in favour of the first defendant and since then the first defendant has been enjoying the suit property as rightful owner. The first defendant as plaintiff has instituted Original Suit No.140 of 2002 for the reliefs of declaration and recovery of possession against the plaintiff and the present suit has been instituted as a counter blast to the suit filed in Original Suit No.140 of 2002. The first defendant has executed a mortgage deed in respect of the suit property, wherein the plaintiff has put his signature as identifying witness and further the first defendant has obtained loan from Indian Overseas Bank, wherein the plaintiff has stood as surety. The plaintiff is an utter stranger to the suit property and he is not having title to the same. There is no merit in the suit and the same deserves dismissal.
8. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after perpending both the oral and documentary evidence has decreed Original Suit No.148 of 2004 and dismissed Original Suit No.72 of 2004. Against the common Judgment rendered by the trial Court, the plaintiff in Original Suit No.72 of 2004 as well as first defendant in Original suit No.148 of 2004 as appellant has preferred Appeal Suit Nos.65 and 66 of 2004 on the file of the first appellate Court.
9. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed both the appeals and thereby confirmed the common Judgment rendered in Original Suit Nos.72 of 2004 and 148 of 2004. Against the concurrent Judgments passed by the Courts below, these second appeals have been preferred at the instance of the plaintiff in Original Suit No.72 of 2004 and first defendant in Original Suit No.148 of 2004.
10. As agreed by the learned counsels appearing for both sides, the present second appeals are disposed of at the stage of admission on merits.
11. In Second Appeal No.107 of 2010, on the side of the appellant the following substantial questions of law have been raised for consideration.
(a) Have not the Courts below erred in holding that the suit property was partitioned when it was specifically admitted to be the self-acquired property of Subba Naicker?
(b) Have not the Courts below erred in holding that the settlees, Vijayakumar and Marithai under Ex.A2 did not accepted the gift, despite there being evidence to hold that the settlees effected mutation in their favour and dealt with the property by alienating them?
(c) Have not Courts below erred in invoking the principle of estoppel against the 1st respondent who stood as an identifying witness to Ex.A2, the settlement deed?
(d) Have not the Courts below erred in holding that Subba Naicker lost his title to the property after the alleged oral partition under Ex.B4 when the 1st respondent stood as an identifying witness to Ex.A2 and as a guarantor to the loan availed by the appellant from IOB, Alangulam as admitted by the 1st respondent himself?
(e) Have not the Courts below went wrong in holding that the property was partitioned without there being a plea of merger?
(f) Have not the Courts below erred in holding that the 1st respondent was estopped from questioning the title of the appellant on the facts available in the case?
(g) Have not the Courts below erred in holding that Ex.B4, the alleged partition list, covered the suit property, particularly when it was so admitted by the 1st respondent?
(H) Have not the Courts below went wrong in invoking the principle under section 116 of T.P.Act against the appellant?
(I) Have not the Courts below went wrong in holding that Ex.B4 the alleged partition, was admissible evidence?
(j) Have not the Courts below went wrong to hold that the suit O.S.No.148 of 2004 without a prayer for setting aside the settlement deed under Ex.A2 was maintainable?
12. In Second Appeal No.108 of 2010, on the side of the appellant the following substantial questions of law have been raised for consideration:
(a) Have not the Courts below erred in holding that the suit property was partitioned when it was specifically admitted to be the self-acquired property of Subba Naicker?
(b) Have not the Courts below erred in holding that the settlees, Vijayakumar and Marithai under Ex.A2 did not accepted the gift, despite there being evidence to hold that the settlees effected mutation in their favour and dealt with the property by alienating them?
(c) Have not Courts below erred in invoking the principle of estoppel against the respondent who stood as an identifying witness to Ex.A2, the settlement deed?
(d) Have not the Courts below erred in holding that Subba Naicker lost his title to the property after the alleged oral partition under Ex.B4 when the 1st respondent stood as an identifying witness to Ex.A2 and as a guarantor to the loan availed by the appellant from IOB, Alangulam as admitted by the respondent himself?
(e) Have not the Courts below went wrong in holding that the property was partitioned without there being a plea of merger?
(f) Have not the Courts below erred in holding that the 1st respondent was estopped from questioning the title of the appellant on the facts available in the case?
(g) Have not the Courts below erred in holding that Ex.B4, the alleged partition list, covered the suit property, particularly when it was so admitted by the respondent?
(H) Have not the Courts below went wrong in invoking the principle under section 116 of T.P.Act against the appellant?
(I) Have not the Courts below went wrong in holding that Ex.B4 the alleged partition, was admissible evidence?
13. Before analysing the rival submissions made by either counsel, it has become shunless to perorate the following admitted facts.
14. The father of the plaintiff in Original Suit No.148 of 2004 is one Subba Naicker and he and his wife have given birth to five sons namely Pothiraj, Rengasamy, Ramasamy, Kandasamy and Soundarraj. The suit property has been purchased by him under a registered sale deed dated 18.07.1969.
15. The consistent case of the plaintiff in Original Suit No.72 of 2004 is that the suit property is the separate property of the said Subba Naikcer and he purchased the same under a registered sale deed dated 18.07.1969 and out of his own volition he settled the same in favour of his grandson by name Vijayakumar, and his wife and also in favour of his grand daughter by name Marithai under a settlement deed dated 27.08.1986 and subsequently the plaintiff has purchased the suit property under a registered sale deed dated 30.10.2000 and therefore, the plaintiff is having absolute right, title and interest over the suit property and the defendant has high-handedly trespassed into the suit property by way of denying the title of the plaintiff. Under the said circumstances the present suit has been instituted for the reliefs of declaration and recovery of possession.
16. The definite case of the plaintiff in Original Suit No.148 of 2004 is that the suit property has been purchased by his father by name Subba Naicker under a registered sale deed dated 18.07.1969 and subsequently among the said Subba Naicker and his sons, an oral partition has taken place and in order to encrust the share allotted to each sharer, a partition list has come into existence on 15.12.1982, wherein the suit property has been allotted to his share and the first defendant in Original Suit No.148 of 2004 is nothing but his son and he executed a lease deed on 16.05.1994 so as to run cable TV operation in the suit property and since the suit property has been allotted to the share of the plaintiff, his father Subba Naicker has had no right to execute the settlement deed dated 27.08.1986 and therefore, the plaintiff has not derived any valid title to the suit property by virtue of the alleged sale deed dated 30.10.2000. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint.
17. The courts below have concurrently rejected the plea raised on the side of the appellant/plaintiff in Original Suit No.72 of 2004.
18. The learned counsel appearing for the appellant in both the appeals has advanced his argument so as to supplant the concurrent Judgments and decrees passed by the Courts below on the following grounds:
(a) The alleged partition chit has been marked as Ex.B4, wherein a property which situates in quarry road has been allotted to the share of the plaintiff in Original Suit No.148 of 2004 and the present suit property is situate in Rajapalayam Road and therefore, it is false to contend that the suit property has been allotted to the share of the plaintiff in Original Suit No.148 of 2004 under the partition chit dated 15.12.1982.
(b) The suit property is nothing but a self acquired property of Subba Naicker and in Original Suit No.148 of 2004 it has not been specifically averred to the effect that the suit property has been purchased by the said Subba Naicker by using joint family funds and also for the benefit of joint family and therefore, the said Subba Naicker has had every right to execute the settlement deed dated 27.08.1986 in favour of the vendors of the plaintiff.
(c) In the plaint filed in Original Suit No.148 of 2004 no necessary averments are found about common hotchpot so as to treat the suit property as joint family property and on that ground alone it is highly impossible to allot the suit property to the share of the plaintiff in Original Suit No.148 of 2004.
(d) The plaintiff in Original Suit No.72 of 2004 has purchased the suit property under a registered sale deed dated 30.10.2000 from the settlees of the settlement deed dated 27.08.1986 and subsequently the plaintiff in Original Suit No.72 of 2004 has obtained loan from Indian Overseas Bank, Alangulam, wherein the plaintiff in Original Suit No.148 of 2004 has stood as surety and further in the settlement deed dated 27.08.1986, the plaintiff in Original Suit No.148 of 2004 has put his signature as an identifying witness and the Courts below have failed to look into the above aspects and therefore, the concurrent Judgments passed by the Courts below are liable to be interfered with.
19. In order to repel the argument advanced by the learned counsel appearing for the appellant in both the appeals, the learned counsel appearing for the respondent in Second Appeal No.108 of 2010 and first respondent in Second Appeal No.107 of 2010 has also equally contended that even though the suit property has been purchased by Subba Naicker under a registered sale deed dated 18.07.1969, the same has been treated as one of the joint family properties and the said Subba Naicker and his five sons including the plaintiff in Original Suit No.148 of 2004 have orally divided their properties in the presence of panchayatars and in order to encrust the share allotted to each sharer, all of them have entered into a partition chit dated 15.02.1982 and the same has been proved by the plaintiff in Original suit No.148 of 2004 by way of examining himself as DW1 and wife of Ramasamy (one of the brothers) by name Subbulakshmi as DW2 and since the suit property has been allotted to the share of the plaintiff in Original Suit No.148 of 2004, the said Subba Naicker has had no valid right, title and interest so as to execute the alleged settlement deed dated 27.08.1986 and therefore, the sale deed dated 30.10.2000 which stands in the name of the plaintiff in Original Suit No.72 of 2004 is not valid. Under the said circumstances Original Suit No.148 of 2004 has been instituted and the Courts below after considering all the divergent evidence available on record have rightly rejected the claim made on the side of the plaintiff in Original Suit No.72 of 2004 and therefore, the concurrent Judgments passed by the Courts below do not warrant interference.
20. Basing upon the divergent submissions made by either counsel, even though sufficient pleadings are not available in the plaint filed in Original Suit No.148 of 2004 with regard to character of suit property, for better and final adjudication, the Court has to look into the following legal positions.
(a) The first and foremost legal position is with regard to acquisition made in the name of a member of a joint family.
(b) The second legal position is with regard to acquisition made in the name of Manager or Kartha of a joint family.
21. As rightly pointed out by the learned counsel appearing for the appellant in both the appeals, no specific pleading is available in the plaint filed in Original Suit No.148 of 2004 with regard to characteristic of the suit property. It has been simply stated in Original Suit No.148 of 2004 that the suit property has been purchased in the name of Subba Naicker on 18.07.1969 and subsequently a family arrangement has been made and the partition chit dated 15.12.1982 has come into existence.
22. For analysing the first legal position involved in these appeals, the Court has to look into the following decisions:
(a) In 1972 II MLJ 110 (Suppanna Kavundar V. Subbulakshmi (alias) Papathi and another), the Division Bench of this Court has held that "the proof of the existence of a joint family did not lead to the presumption that property held by any member of the family was joint, but where it was established that the family possessed some family properties, which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden would then shift to the party alleging self-
acquisition to establish affirmatively that it was acquired without the aid of the joint family property."
(b) In 1976 II MLJ 225 (Pattusami Padayachi V. Mullaiammal and others), the Division Bench of this Court has held that "properties purchased by one or other of the members of a coparcenary or joint family when the family is joint cannot as a matter of course be treated as joint family property. The coparcener who challenges such title in the member and pleads that they should also be brought to the hotch-pot ought to establish by cogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. In all cases, definite proof is required that the further purchase in the names of joint family members ought to have been made and could not have been made otherwise than from the surplus income of the family."
(c) In 85 - L.W. 857 (V.Srinivasan and others V. Sundaramurthi and another), this Court has held that "it is well established that if a property stands in the name of the coparcener of a joint family, mere proof of the existence of the joint family owning some joint family property, does not give rise to any presumption and that it must by established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the co-parcener.
23. From the cumulative reading of the decisions referred to supra, the following presumptions have arisen:
(a) Mere existence of Hindu joint family is not at all sufficient to lead a presumption to the effect that the acquisition in the name of a member for the benefit of joint family.
(b) If a joint family possessed of sufficient nucleus, from which the property in question may have been acquired, the burden would shift upon the party alleging self acquisition.
24. Now the Court has to look into the second legal position involved in the present appeals.
25. The second legal position is with regard to acquisition made in the name of Manager or Kartha.
26. In AIR 1972 Supreme Court 2531 (Baikuntha Nath Paramanik (dead) by his L.Rs and heirs V. Sashi Bhushan Pramanik (dead) by his L.Rs and others), the Honourable Apex Court has held that "when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.
27. In AIR 1968 Supreme Court 683 (V.D.Dhanwatey V. The Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara), the Honourable Apex Court has held that "the general doctrine of Hindu Law is that property acquired by a karta or a coparcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it is an essential feature of self-acquired property that it should have been acquired without assistance or aid of the joint family property. The test of self acquisition by the karta or coparcener is that it should be without detriment to the ancestral estate. Before an acquisition can be claimed to be a separate property, it must be shown that it was made without any aid or assistance from the ancestral or joint family property."
28. In 1996 I MLJ 320 (Kandasami and another V. Adi Narayanan and others), this Court has held that "acquisitions made by manager or father or karta of joint family in his name - burden is on the manager, father and karta to explain that the acquisitions were made out of his separate fund."
29. In 1997 I MLJ 578 (S.Kandasamy Naicker V. Akkammal and others) this Court has held that "when the manager acquires properties, the legal presumption is that the properties purchased by him, go to the benefit of the family. It cannot be treated as his self-acquisition. This Court has followed the ratio decidendi settled in the decision reported in AIR 1966 S.C.411 (Achuthan Nair V. Chinnammu Amma), wherein the Honourable Apex Court has held that "a person in management is in the position of trustee and is in a fiduciary position. In that capacity also, when he acquires properties, it goes to the benefit of the family."
30. In 97 LW 406 (M.Krishnan V. Ramaswami and others) this Court has held that "where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund."
31. From the close reading of the decisions referred to supra, with regard to second legal position, the Court can very well draw a strong presumption that if any acquisition stands in the name of joint family manager or karta, it stands only for the benefit of joint family, unless it is established that the acquisition in question has been made by utilising separate fund of manager or karta, without detriment to joint family nucleus.
32. With the above legal backdrops, the Court has to analyse the rival contentions urged on the side of the appellant as well as respondent.
33. It has already been pointed out that in the plaint filed in Original Suit No.148 of 2004 sufficient pleadings are not found with regard to character of suit property. Likewise, in the plaint filed in Original Suit No.72 of 2004, it has been simply stated that the suit property has been purchased by Subba Naicker under a registered sale deed dated 18.07.1969 and therefore, it is nothing but his self acquired property.
34. The said Subba Naicker and his wife have given birth to five sons namely Pothiraj, Rengasamy, Ramasamy, Kandasamy and Soundarraj. It goes without saying that for the erstwhile joint family consisted of Subba Naicker and his five sons, he has had acted as joint family manager. The plaintiff in Original Suit No.148 of 2004 has based his right to the suit property by virtue of the partition chit dated 15.12.1982. Even without deciding its genuineness, a cursory look of the same would reveal that the erstwhile joint family consisted of Subba Naicker and his sons has had possessed of sufficient properties. The said Subba Naicker has purchased a vacant land of four cent only under a registered sale deed dated 18.07.1969. Therefore, the Court can come to a conclusion that the erstwhile joint family consisted of that Subba Naicker and his five sons has had possessed of sufficient nucleus.
35. It has already been assorted various decisions which dealt with the legal presumption in case of acquisition which stands in the name of manager or karta. The incontrovertible and also unassailable presumption is that if an acquisition stands in the name of father or manager in a Hindu joint family, the same is only for the benefit of joint family, unless contrary is proved.
36. The sale deed dated 18.07.1969 has been marked as Ex.A1. It has already been pointed out that under Ex.A1 only four cent of vacant land has been purchased by the erstwhile manager of Hindu Joint family. Therefore, the strong legal presumption is that the purchase made under Ex.A1 even though it stands in the name of the said Subba Naicker, is only for the benefit of the erstwhile joint family.
37. Even assuming without conceding that the suit property is the self acquired property of the said Subba Naicker, the Court has to look into the legal effect of family arrangement and also blending. In the plaint filed in Original Suit No.148 of 2004, sufficient averments are available so as to infer that a family arrangement has been made amongst the said Subba Naicker and his five sons. The sheet anchor of the case of the plaintiff in Original Suit No.148 of 2004 is that the partition chit dated 15.12.1982. On the side of the plaintiff, in Original Suit No.72 of 2002 a candid denial has been made with regard to the partition chit dated 16.05.1994. Therefore, a primordial duty is cast upon the plaintiff found in Original Suit No.148 of 2004. The plaintiff has been examined as DW1. He has clearly stated in his evidence that prior to 15.12.1982 an oral partition has been effected among the sharers, wherein the suit property has been allotted to his share and in order to encrust the earlier oral partition, the partition chit dated 15.12.1982 has come into existence. The said partition chit has been marked as Ex.B4. The evidence of DW1 as well as Ex.B4 should be analysed with the evidence of DW2 and also Ex.B40. DW2 viz., Subbulakshmi is none other than the wife of Ramasamy (one of the sons of Subba Naicker) and her categorical evidence is that prior to Ex.B40, a partition has been effected orally and in order to confirm the same, Ex.B40 has come into existence. In fact, Ex.B4 and Ex.B40 are identical documents. If really Ex.B4 has not come into existence, definitely Ex.B40 would not have been marked by DW2. Therefore, on the side of the plaintiff found in Original Suit No.148 of 2004, Ex.B4 has been clearly proved.
38. It has already been pointed out to the effect that the Court has to look into the legal effect of family arrangement and also blending in a Hindu joint family.
39. It is an avowed fact that in every Hindu joint family, partition will take place only by way of adopting family arrangement. Even assuming without conceding, as pointed out earlier that the suit property is the self acquired property of Subba Naicker, the Court has to look into the legal effect of family arrangement made under Ex.B4 as well as blending.
40. For analysing the above legal aspects, the Court has to look into the following decisions:
(a) In 1997 - 2 - L.W. 770 (Arumuga Udayar V. Swamiyar alias Ramasamy Udayar and 3 others), the Division Bench of this Court has held that "in a family arrangement, it is not necessary that only coparcenary properties should be the subject matter thereof. Properties of all members can be pooled together for arriving at amicable settlement."
(b) In 1995 I MLJ 336 (K.Sengodan V. K.Dharmalingam and others) this Court has held that "the concept of "blending" is this - what is one's own self-
acquisition is willingly thrown by the acquirer into the common hotchpot of the family by his own voluntary act and thereafter he cannot assert any individual title to the same."
41. In Original Suit No.148 of 2004 it has been clearly pleaded that on 15.12.1982 a partition chit has come into existence, wherein prior allotment of suit property to the plaintiff has been stated. In fact, this Court has perused the entire recitals made in Ex.B4, the partition chit dated 15.12.1982, wherein it has been clearly recited that prior to 15.12.1982 a partition has taken place amongst all the sharers, and the suit property has been allotted to the share of the plaintiff. As stated in many places, even assuming without conceding that the suit property is the self acquired property of Subba Naicker, since he has voluntarily pooled the same along with other properties for having amicable division, it is needless to say that after Ex.B4, the said Subba Naicker has had no right over the suit property.
42. Now the Court has to look into the submissions made by the learned counsel appearing for the appellant in both the appeals.
43. The first and foremost attack is that the property found in Ex.B4 is not the suit property. In fact in the plaint filed in Original Suit No.148 of 2004, it has been clearly averred that the plaintiff therein has derived valid title to the suit property by virtue of the partition chit dated 15.12.1982. In Original Suit No.148 of 2004 the present appellant has been shown as first defendant and he filed his written statement in a detailed manner, wherein no inkling is found as to the identity of the suit property. The learned counsel appearing for the appellant in both the appeals has advanced the first limb of argument only on the basis of the alleged admission given by DW1 (plaintiff in Original Suit No.148 of 2004). DW1 has admitted in his evidence that Rajapalayam road and quarry road are entirely different and the property allotted to him under Ex.B4 is situate near quarry road, wherein he has run hotel as well as javuli business. In the plaint filed in Original Suit No.148 of 2004 it has been clearly mentioned that the plaintiff therein has derived valid title under Ex.B4 over the suit property, wherein he has run hotel as well as javuli business. Further it is averred that the plaintiff in Original Suit No.72 of 2004 has executed lease deed for running cable TV operations. Therefore, it is needless to say that there is no incertitude in coming to a conclusion that the property found in Ex.B4 is nothing but the suit property and therefore, the first and foremost limb of argument advanced by the learned counsel appearing for the appellant in both the appeals goes out without merit.
44. The second and third limb of arguments urged on the side of the appellant in both the appeals have already been dealt with in extenso.
45. The fourth aspect urged on the side of the appellant in both the appeals is that in the settlement deed dated 27.08.1986, the plaintiff in Original Suit No.148 of 2004 has put his signature as an identifying witness and further, in the mortgage deed executed by the plaintiff in Original Suit No.72 of 2004 in favour of Indian Overseas Bank, Alangulam the plaintiff in Original Suit No.148 of 2004 has stood as security. Under the said circumstances he is estopped from denying the title of the plaintiff in Original Suit No.72 of 2004 and his predecessors in title.
46. It is an axiomatic principle of law that mere attestation would not amount to admission nor estoppel. simply because in the documents mentioned supra, the plaintiff in Original Suit No.148 of 2004 has put his signature as identifying witness and also guarantor, the Court cannot come to a conclusion that the plaintiff in Original Suit No.148 of 2004 is estopped from claiming his title to the suit property by virtue of Ex.B4.
47. At this juncture, the Court has to look into the relationship between the parties. As stated in the prologue of this Judgment, the appellant is one of the sons of the respondent and both of them have lived together for long time and only for getting loan from Indian Overseas Bank, since the respondent (plaintiff in Original Suit No.148 of 2004) is the father of the appellant (Plaintiff in Original Suit No.72 of 2004) might have stood as a guarantor and that itself would not have paved the way for accepting the alleged title of the plaintiff in Original suit No.72 of 2004. Therefore, the fourth aspect urged on the side of the appellant in both the appeals is also sans merit.
48. The learned counsel appearing for the appellant in both the appeals has relied upon the following decisions:
(a) The first and foremost decision is reported in 2004 (3) CTC 401 (Kokila V. Swathanthira and others), wherein this Court has held that "unless necessary pleading is available, the Court cannot come to a conclusion that all property is joint family property."
(b) The second decision is reported in 1999 (I) CTC 231 (Chinna Pillai ammal and 3 others V. Mannangatti Padayachi and 6 others), wherein this Court has held that "however in a suit based on title for possession, the relief of possession can be negatived only when the adverse party viz. the defendants herein are able to establish that the title of the deceased plaintiff or the appellants is extinquished by law of limitation. In a suit for possession based on title the plaintiff has no longer to prove under Articles 65 of the Limitation Act that he was in possession of the suit property for a period of twelve years, and it is for the defendants to establish that his possession has been adverse for the requisite period of 12 years."
(c) The third decision is reported in 2004 (1) CTC 146 (K.Balakrishnan V. K.Kamalam and others), wherein the Honourable Apex Court has held that "gift inter vivos can be executed in favour of minor and the same cannot be revoked on the ground of minority."
49. As pointed out in many places, the plaintiff in Original Suit No.72 of 2004 has claimed title to the suit property by virtue of the settlement deed dated 27.08.1986 and the sale deed dated 30.10.2000 which have been marked as Exs.A2 and A3.
50. It has already been pointed out that even assuming without conceding that the suit property is a self acquired property of Subba Naicker since he voluntarily pooled the same with other family properties and to that extent Ex.B4 has come into existence, he has had no title to the suit property so as to execute Ex.A2 in favour of the settlees therein. Further, it is a humdrum that if a person has done anything improvidently without thinking about its eventuality or aftermath, he cannot subsequently resail or assail the same. Since he has had no right to execute Ex.A2 in favour of settlees therein, the sale deed executed by them under Ex.A3 in favour of the plaintiff in Original Suit No.72 of 2004 is nothing but null and void and the same cannot confer valid title to the plaintiff in Original Suit No.72 of 2004. Therefore, viewing from any angle, the claim made on the side of the plaintiff in Original Suit No.72 of 2004 is not factually and legally acceptable.
51. The appellant as plaintiff has filed Original Suit No.72 of 2004 for the reliefs of declaration and recovery of possession, wherein the plaintiff in Original Suit No.148 of 2004 has been shown as sole defendant and the plaintiff in Original Suit No.148 of 2004 has instituted the same for the relief of declaration to the effect that the sale deed which stands in the name of the first defendant therein executed by the defendants 2 and 3 therein is null and void and consequential injunction. It has already been discussed in extenso that under Ex.B4 the plaintiff in Original Suit No.148 of 2004 is having valid title to the suit property and the settlement deed viz., Ex.A2 and the sale deed viz., Ex.A3 have not created any valid title in favour of the plaintiff in Original Suit No.72 of 2004. Therefore, the reliefs sought for in Original Suit No.72 of 2004 cannot be granted in favour of the plaintiff therein. But the reliefs claimed in Original Suit No.148 of 2004 can very well be granted.
52. The Courts below after excogitating the available evidence on record has rightly non suited the plaintiff found in Original Suit No.72 of 2004. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found any valid ground to make interference with the well merited Judgments passed by the Courts below and further, the substantial questions of law raised in both the appeals are not having substance at all and altogether these second appeals are liable to be dismissed.
53. In fine, these second appeals deserve dismissal and accordingly are dismissed without cost at the stage of admission. The common Judgments passed in Original Suit Nos.148 and 72 of 2004 by the District Munsif Court, Sivakasi, and in Appeal Suit Nos.66 and 65 of 2004 by the Sub Court, Sivakasi are confirmed.
mj To
1.The Sub Court, Sivakasi
2.The District Munsif Court, Sivakasi,