Madras High Court
Chinniya Gounder (Died) vs Mariappan on 22 August, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22.08.2013 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN A.S.No.241 of 1999 and Cross Objection No.53 of 2000 A.S.No.241 of 1999: ------------------ 1. Chinniya Gounder (died) .. Appellant/1st Defendant 2. Mrs. Pattammal 3. Rajeswari 4. Selvamani 5. Chandra 6. Thamizhselvi 7. Rajendran 8. Panneerselvam 9. Maharani 10.M.Maharaja .. Appellants 2 to 10/LRs of the sole appellant ..Vs.. 1. Mariappan 2. Dharmalingam 3. Subramanian 4. Selvaraj 5. Pushpanathan 6. Sundarambal 7. Kamala 8. Marimuthu 9. Kamatchi 10.Kalyanai .. Respondents 1 to 10/Plaintiffs 11. Sellappa Gounder 12. Lakshmi .. Respondents 11 and 12/Defendants 2 and 3 Cross Objection No.53 of 2000: ----------------------------- 1. Mariappan 2. Subramanian 3. Selvaraj 4. Pushpanathan 5. Kalyani .. Cross Objectors/Plaintiffs 1,3,4,5 and 10 ..Vs.. 1. Chinniya Gounder (died) .. Respondent/Appellant/1st Defendant 2. Mrs. Pattammal 3. Rajeswari 4. Selvamani 5. Chandra 6. Thamizhselvi 7. Rajendran 8. Panneerselvam 9. Maharani 10.M.Maharaja .. Respondents 2 to 10/LRs of the sole appellant/1st Defendant 11.Sellappa Gounder 12.Lakshmi .. Respondents 11 and 12/Defendants 2 and 3 13.Dharmalingam 14.Sundarambal 15.Kamala 16.Marimuthu 17.Kamatchi .. Respondents 13 to 17/Plaintiffs 2,6,7,8 and 9 Prayer in A.S.No.241 of 1999: Appeal Suit filed under Section 96 of Code of Civil Procedure against the Judgment and Decree dated 30.11.1998 in O.S.No. 8 of 1996 on the file of the Additional Subordinate Court, Nagapattinam. Prayer in Cross Objection No.53 of 2000: Cross Objection filed under Order 41 Rule 22 of Civil Procedure Code to set aside the disallowed portion of decree in O.S.No.8 of 96 dated 30.11.1998 on the file of Additional Subordinate Court, Nagapattinam. For appellants in A.S.No.241 of 1999 and Respondents in Cross Objection No.53 of 2000 : Mrs.Srividhya for Mr.S.Viswanathan For Respondents in A.S.No.241 of 1999 and Appellants in Cross Objection No.53 of 2000 : Mr.V.K.Vijayaragavan J U D G E M E N T
The 1st defendant in O.S.No.8 of 1996 on the file of the Additional Subordinate Court, Nagapattinam, is the appellant.
2. The respondents 1 to 10 / plaintiffs filed the suit for partition of their 120/242 shares in the 'A' and 'B' schedule properties. The trial Court granted decree declaring that the plaintiffs are entitled to 120/242 undivided share in the suit 'A' schedule properties and Items 1 to 10 and 17 in the 'B' schedule properties and rejected the claim of the plaintiffs in respect of Items 11 to 16 of the 'B' schedule properties. Aggrieved by the same, the 1st defendant filed the appeal and aggrieved by the disallowed portion in respect of Items 11 to 16 of the 'B' schedule properties, the plaintiffs filed the Cross Objection.
3. The case of the plaintiffs as seen from the plaint is as follows:- The 1st defendant and one Packri Gounder the father of the plaintiffs were the sons of Kathamuthu Gounder and all the properties were the joint family properties of Kathamuthu Gounder and his two sons. Kathamuthu Gounder died in the year 1968 and the plaintiffs' father Packri Gounder died in the year 1984 and therefore the plaintiffs are entitled to 120/242 shares in the suit properties. It is further stated that Items 1 to 11 in the 'A' schedule properties were purchased in the name of Kathamuthu Gounder, Items 12 to 19 were purchased in the name of Packri Gounder, Item 20 was purchased in the name of 1st defendant/ appellant and Item 21 is the ancestral house. Similarly, in the 'B' schedule properties Items 1 to 6 were purchased in the name of Kathamuthu Gounder, Items 7 to 16 were purchased in the name of the 1st defendant/ appellant and all the properties were treated as joint family properties and though the properties were purchased in the names of Packri Gounder and the 1st defendant/ appellant, those properties were purchased from and out of the income of other joint family properties and therefore the plaintiffs are entitled to partition.
4. The 1st defendant filed the statement stating that the suit for partition filed by the plaintiffs is not maintainable as the 3rd defendant one of the Legal Representatives of Packri Gounder filed the suit in O.S.No.168 of 1994 for partition against the plaintiffs and the 1st defendant and did not prosecute the case and the suit was dismissed for default and therefore the present suit for partition filed by the plaintiffs is barred by res judicata. He further stated that the 3rd plaintiff also filed the suit in O.S.No.106 of 1994 for injunction against the 1st defendant and that suit was also dismissed for non-prosecution and therefore the plaintiffs are not entitled to the suit for partition and the suit is also barred by res judicata. He further submitted that in the year 1950 the 1st defendant started living separately at Velanganni Village and he has taken mango grows on lease and was doing vegetable business and has also taken properties on lease from various persons and cultivated casuarina trees and plantain trees and from out of the income he earned from those avocations, he purchased Item 20 in the 'A' schedule properties and Items 7 to 17 in the 'B' schedule properties and therefore those properties are his separate properties and the plaintiffs cannot claim any right over those properties. He further contended that after the death of the father Kathamuthu Gounder in the year 1968, there was a Panchayat in the presence of elders and in that Panchayat there was a oral partition and under the oral partition 'A' schedule properties in Items 1 to 3, 5, 8, 11 to 19 and Item 21 were given to Packri Gounder towards his share and 'B' schedule properties in Items 1 to 6 and 'A' schedule properties in Item 10 were allotted to the share of the 1st defendant and the properties in the name of the 1st defendant namely 'B' schedule properties in Items 7 to 17 were accepted as separate properties of the 1st defendant and from the date of oral partition the parties were enjoying the respective shares and therefore the present suit for partition is also not maintainable. He further contended that in the oral partition Items 4, 6, 7 and 8 of 'A' schedule properties which were purchased in the name of Kathamuthu Gounder were not included and therefore those properties are liable for partition and the 1st defendant has no objection for dividing those four items of properties. He therefore contended that the present suit for partition in respect of other items of properties is not maintainable.
5. On the basis of the pleadings the trial Court framed the following issues and are as follows:
(1)Whether the plaintiffs entitled to undivided 120/242 share in the suit properties ? (2) Whether this suit is barred by estoppel by Judgment ?
(3)Whether the suit Item 20 in A- schedule and Items 7 to 16 in the B- schedule are the separate properties of the 1st defendant ? (4) Whether the suit Items 10 and 20 in A- schedule and the B- schedule properties belong to the 1st defendant by ouster and adverse possession ? (5)Whether there was an oral partition as to family properties of the parties except the Items 4, 6,7 and 9 in the A- schedule ?
(6) Whether the plaintiffs are entitled to partition as prayed for ?
(7) To what relief the plaintiffs are entitled ?
6. The trial Court tried all the issues together and held that the oral partition set up by the 1st defendant/ appellant can not be believed. The trial Court further held that Items 11 to 16 of 'B' schedule properties were purchased in the name of the 1st defendant after the death of his father Kathamuthu Gounder and those properties must be considered as separate properties and the 1st defendant also cannot claim that he perfected title by adverse possession and also by ouster in respect of Items 10 and 20 of 'A' schedule and 'B' schedule properties and the dismissal of earlier suit for non-prosecution will not operate as res judicata and held that the plaintiffs and the 3rd defendant are entitled to 120/242 undivided share in the suit 'A' schedule properties and Items 1 to 10 and 17 of 'B' schedule properties and the preliminary decree was passed in respect of those properties and also held that the 1st defendant/ appellant is the absolute owner of Items 11 to 16 of 'B' schedule properties and rejected the case of the plaintiffs. Aggrieved by the same, the present appeal is filed by the 1st defendant/ appellant and aggrieved by the rejection of the plaintiffs claim in respect of Items 11 to 16 in the 'B' schedule properties, the plaintiffs filed the Cross Objection.
7. It is submitted by the learned counsel for the appellant/ 1st defendant that the trial Court erred in disbelieving the evidence of DW1 to DW3 regarding oral partition and as per the oral partition some of the properties were already divided and therefore having regard to the evidence given in respect of oral partition, the Court below ought to have dismissed the suit. He further submitted that admittedly Items 7 to 10 in the 'B' schedule properties were purchased in the name of the appellant/ 1st defendant and Item 20 of 'A' schedule properties was also purchased in the name of the 1st defendant and admittedly the 1st defendant is the junior member of the joint family and therefore the burden lies on the plaintiffs to establish that the properties purchased in the name of junior member namely the appellant/1st defendant also belong to the joint family and no evidence was let in to prove the same and in the absence of any evidence adduced by the plaintiffs the Court below ought to have held that the properties purchased in the name of the 1st defendant namely Items 7 to 10 in the 'B' schedule properties and Item 20 in the 'A' schedule properties belong to the appellant/ 1st defendant and ought not to have granted partition of those items. The learned counsel for the appellant/1st defendant further submitted that admittedly the 3rd defendant filed the suit in O.S.No.168 of 1994 for partition against the plaintiffs and the 1st defendant and that suit was dismissed for default and in that suit the plaintiffs would have filed an application to transpose them as plaintiffs and prosecuted the suit and therefore the dismissal of earlier suit in O.S.No.168 of 1994 will operate as res judicata and therefore the present suit is barred under Order 9 Rule 9 C.P.C. The learned counsel for the appellant/ 1st defendant further submitted that the trial Court having held that the properties in Items 11 to 16 of 'B' schedule properties are the separate properties of the appellant/ 1st defendant on the ground that they were purchased in his name, ought to have applied the same principle in respect of the properties in Items 7 to 10 of 'B' schedule properties and Item 20 of 'A' schedule properties who were also purchased in the name of 1st defendant/ appellant and therefore excluded those items of properties from the partition and therefore the decree passed by the trial Court has to be modified and the decree has to be restricted only in respect of Items 1 to 19 in the 'A' schedule properties and Item 21 of 'A' schedule properties and also Items 1 to 6 of 'B' schedule properties. The learned counsel for the appellant/1st defendant further submitted that the trial Court has rightly excluded Items 11 to 16 of 'B' schedule properties holding that those properties were the properties purchased in the name of the 1st defendant/ appellant and those properties were purchased after the death of Kathamuthu Gounder and hence those properties cannot be treated as joint family properties and therefore the Cross Objection filed by the plaintiffs is also liable to be dismissed.
8. On the other hand, Mr. V.K.Vijayaraghavan, the learned counsel for the respondents submitted that the trial Court without properly appreciating the evidence and the case put forward by the 1st defendant/ appellant erred in excluding Items 11 to 16 of 'B' schedule properties from partition and those properties are also available for partition. The learned counsel for the respondents further submitted that admittedly Items 1 to 11 in 'A' schedule properties and Items 1 to 6 in 'B' schedule properties were purchased in the name of Kathamuthu Gounder and Items 12 to 19 in 'A' schedule properties were purchased in the name of Packri Gounder, the father of the plaintiffs, Item 20 in 'A' schedule properties and Items 7 to 16 in 'B' schedule properties were purchased in the name of the 1st defendant/ appellant. He also submitted that Kathamuthu Gounder and his two sons namely Packri Gounder and Chinnaiah Gounder, the 1st defendant constituted coparcenery and the 1st defendant/ appellant also admitted that the properties mentioned in 'A' schedule properties namely Items 1 to 19 and 21 and Items 1 to 6 in 'B' schedule properties were the ancestral properties of Kathamuthu Gounder, Packri Gounder and Chinnaiah Gounder, the 1st defendant. It is also admitted that the ancestral properties were yielding good income. It is the case of the plaintiffs that from and out of the income from the joint family properties some of the properties namely Items 12 to 19 in 'A' schedule properties were purchased in the name of Packri Gounder and Item 20 in 'A' schedule properties and Items 7 to 16 were purchased in the name of the 1st defendant/ appellant. He further submitted that the evidence of DW3 would prove that the 1st defendant was not having any separate income and the evidence of 1st defendant also would make it clear that he was not having any separate income. He further submitted that though the 1st defendant/ appellant claimed that he has taken lands on lease and also was doing vegetable business, he was not able to state the names of lessors/ owners of lands and also the location of the lands and considering all these aspects the trial Court rightly held that though Items 7 to 10 in 'B' schedule properties and Item 20 in 'A' schedule properties were purchased in the name of the 1st defendant/ appellant, those properties were the properties of joint family consisting of Packri Gounder and Chinnaiah Gounder and therefore the plaintiffs are entitled to 120/242 shares in those properties. He further submitted that the 1st defendant/ appellant set up a case of oral partition in the written statement stating that under the oral partition 'A' schedule properties in Items 1 to 3, 5, 8, 11 to 19 and Item 21 were allotted to the share of Packri Gounder and 'B' schedule properties in Items 1 to 6 and 'A' schedule properties in Item 10 were allotted to his share and Items 4, 6, 7 and 9 of 'A' schedule properties were not partitioned. But in evidence he would contend that the properties in Velanganni Village namely 'B' schedule properties were allotted towards his share in the oral partition and the properties in South Poaigai Nallur Village namely 'A' schedule properties were allotted to the share of Packri Gounder and therefore having regard to the inconsistent stand taken by the 1st defendant/ appellant in the written statement as well as in evidence and having regard to the fact that the appellant/ 1st defendant was not able to prove any independent income coupled with the fact that the joint family properties were yielding good income, the trial Court ought to have held that Items 1 to 16 of 'B' schedule properties were also available for partition. He further submitted that having regard to the fact that the 1st defendant/ appellant was not having any separate income the properties in Items 11 to 16 were purchased after the death of Kathamuthu Gounder must also be treated as joint family properties and those properties must have been acquired in his name only from the income from the other joint family properties and the oral partition set up by the 1st defendant/ appellant was not proved, the trial Court ought to have held that the properties are available for partition and therefore the Cross Objection filed by the Cross Objectors/ plaintiffs in respect of Items 11 to 16 of 'B' schedule properties has to be allowed.
9. The learned counsel for the respondents/ plaintiffs also relied upon the Judgement reported in 2009 (1) MLJ, 126 (V.Ponramu Vs. B.Usharani and 3 others) in support of his contention that the dismissal of O.S.No.168 of 1994 filed by the 3rd defendant for partition will not be a bar for filing the suit for partition by the plaintiffs.
10. On the basis of the above submissions the following points that arise for consideration in the First Appeal are:
(1)Whether the suit in O.S.No.168 of 1994 filed by the 3rd defendant for partition will operate as res judicata ? (2)Whether the appellant is entitled to question the preliminary decree passed by the trial Court when Items 1 to 19 in 'A' schedule properties and Items 1 to 6 in 'B' schedule properties were admitted by him as joint family properties ?
(3)Whether the contention of the appellant that Items 10 and 20 of 'A' schedule properties and Items 7 to 10 of 'B' schedule properties are the separate properties of the 1st defendant can be accepted ? (4)Whether the contention of the Cross Objectors that Items 11 to 16 are also the joint family properties and they are not separate properties of the 1st defendant/ appellant and those properties are also available for partition can be accepted ?
11. It is seen from the Judgement reported in 2009 (1) MLJ, 126 (V.Ponramu Vs. B.Usharani and 3 others) that subsequent suit for partition is maintainable even if the prior suit for same relief was dismissed for default. The learned Single Judge relied upon the Judgment of the Division Bench of this Court reported in AIR 1935 Madras 458 (Ramasesha Iyer Vs. Ramnujadurai) held that even after the dismissal of the former suit for partition the jointness continues and there is a continuing cause of action and therefore the subsequent suit for partition is maintainable. Hence the point for consideration No.1 is answered against the appellant/ 1st defendant.
12. Admittedly, Kathamuthu Gounder was the karta of the family and he had two sons Packri Gounder and Chinnaiah Gounder, the 1st defendant and it is also admitted that Items 1 to 19 and 21 of 'A' schedule properties and Items 1 to 6 of 'B' schedule properties are the joint family properties belonging to Kathamuthu Gounder, Packri Gounder and Chinnaiah Gounder. It is also not in dispute that those joint family properties are yielding good income. It is also admitted that Items 12 to 19 in 'A' schedule properties were purchased in the name of Packri Gounder. It is the case of the appellant that though Items 12 to 19 of 'A' schedule properties were purchased in the name of Packri Gounder, they are also joint family properties as they were purchased from and out of the income from the joint family properties. At the same time, he would contend that Items 7 to 10 of 'B' schedule properties and Item 20 of 'A' schedule properties are his separate properties and the plaintiffs failed to prove that those properties were purchased from and out of the joint family income. When admittedly the joint family was having various items of properties and those properties were yielding income, the purchase of properties in the name of junior member of joint family must be presumed to be the joint family properties in the absence of any income of the junior member.
13. According to the appellant that he started living separately in the year 1950 at Velanganni Village and he has taken lands on lease from various persons and was cultivating casuarina, plantain trees and had also taken mango groves on lease and from those income he purchased Items 7 to 16 of 'B' schedule properties and Item 20 of 'A' schedule properties and therefore those properties are to be treated as separate properties.
14. I am unable to accept the contention of the learned counsel for the appellant/ 1st defendant in that regard. As rightly submitted by the learned counsel for the respondents/ plaintiffs that when the 1st defendant failed to prove that he was having separate income, the properties purchased in the name of the defendants must also be considered as joint family properties. Further, the trial Court rejected the case of the 1st defendant as regards the oral partition. Therefore, when the oral partition set up by the 1st defendant/ appellant was disbelieved the parties continued to remain joint family and therefore the purchase of properties in the name of other joint family members must also be treated as joint family properties. Further, the appellant/ 1st defendant was not able to state the name of persons from whom he has taken mango groves on lease or other lands on lease. He was also not able to disclose what was the rent he paid to those landlords and what was the income he earned from those business. In the cross examination he has stated that he does not know the names of the mango groves owners from whom he took those mango groves on lease. Though he was able to mention the names of Dhachinamurthy and Kailasa Thevar from whom he took the properties on lease and cultivated casuarina trees and also plantain trees, he was not able to state the extent of land taken on lease and also the rent he paid to those land owners and he was not able to state his net income he earned from those avocations. Therefore, the trial Court has rightly held that the 1st defendant / appellant failed to prove that he was having separate income and from those income he purchased Items 7 to 10 in 'B' schedule properties and Item 20 in 'A' schedule properties. Further, DW3 is the Village Karnam and he has clearly stated that the 1st defendant/ appellant was not cultivating any lands. DW3 deposed that to his knowledge Chinnaiah Gounder cultivated his own lands and he did not cultivate the third party properties. Therefore, considering the evidence of DW3 who is the Village Karnam, the trial Court rejected the evidence of DW1 and DW2 and held that there was no reliable evidence to prove that the appellant/ 1st defendant was having separate income by cultivating other lands. The trial Court also rightly rejected the oral partition holding that even according to the evidence of DW2 and DW3 no list was prepared in the oral partition when there are lot of properties to be divided and the oral partition pleaded in statement was contrary to the evidence let in by the appellant/ 1st defendant. Therefore, the trial Court rightly held that the properties in 'A' schedule and properties in 'B' schedule namely Items 1 to 10 and 17 are the joint family properties and the plaintiffs are entitled to 120/242 shares.
15. As regards the Cross Objection in respect of Items 11 to 16 of 'B' schedule properties and Items 10 and 20 of 'A' schedule properties, according to me the trial Court erred in holding that those properties are the separate properties of the 1st defendant/ appellant. As stated supra, when the trial Court held that Items 7 to 10 were to be treated as joint family properties on the ground that the 1st defendant/ appellant was not having separate income, the same analogy has to be applied to Items 11 to 16 of 'B' schedule properties and Items 10 and 20 of 'A' schedule properties. The trial Court was carried away by the fact that Items 11 to 16 were purchased after the death of Kathamuthu Gounder and therefore those properties must have been the separate properties of the 1st defendant/ appellant. According to me, when the trial Court disbelieved the oral partition between the brothers after the death of Kathamuthu Gounder, the brothers enjoyed the properties in common and when the 1st defendant was not having any separate income for the purchase of Items 11 to 16 of 'B' schedule properties and Items 10 and 20 of 'A' schedule properties, the trial Court ought to have held those properties must have been purchased from and out of the income of joint family properties and therefore those properties also to be treated as joint family properties.
16. Hence, the findings of the trial Court that Items 11 to 16 of 'B' schedule properties and Items 10 and 20 of 'A' schedule properties are the separate properties of the 1st defendant/ appellant are erroneous and they are set aside. The points for consideration in Issue Nos.2 to 4 are answered against the appellant/ 1st defendant.
17. In the result, the appeal filed by the 1st defendant/ appellant in A.S.No.241 of 1999 is dismissed and Cross Objection No.53 of 2000 filed by the plaintiffs is allowed. No costs.
kr To The Additional Subordinate Judge, Additional Subordinate Court, Nagapattinam