Madras High Court
S.Kodeeswaran vs K.Subramaniayam on 24 August, 2017
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.08.2017 CORAM THE HON'BLE MR. JUSTICE R.SUBRAMANIAN A.S.No.8 of 2012 and M.P.No.1 of 2012 S.Kodeeswaran ...Appellant vs. 1.K.Subramaniayam 2.Kamalakannu @ Kamalam ... Respondents Appeal Suit is filed under Order 41 Rule 1 r/w Section 96 of Civil Procedure Code to set aside the judgment and decree of the learned Principal District Judge, Namakkal in O.S.No.168 of 2010 dated 11.11.2011. For Appellant : Mr.N.Manokaran For Respondents : Mr.R.Thirugnanam for R1 J U D G M E N T
The plaintiff in OS.No.168 of 2010 is the appellant. The suit was filed seeking partition and separate possession of the plaintiffs half share in the suit property. According to the plaintiff the first defendant who is the father was allotted certain properties in a partition that took place between him and his brothers on 19.12.1947. The said property was sold by the plaintiff, the first defendant, second defendant and the wife of the first defendant under a sale deed dated 22.02.1989 for a consideration of Rs.1,30,000/-. From and out of the said Rs.1,30,000/-, the suit property was purchased in the name of the first defendant, he being the eldest member on 27.11.1989.
2. The plaintiff would further submit that with the aid of the remaining amount as well as the joint exertion of the plaintiff as well as the first defendant the residential house was constructed in the suit property. It is claimed that on 08.08.2008 there was a mediation between the parties and it was agreed that the suit property shall be taken by the plaintiff and second defendant absolutely and the first defendant was paid a sum of Rs.3,00,000/- in lieu of his share in the property.
3. Pursuant to the said oral arrangement the plaintiff, his mother and the second defendant executed a sale agreement on 31.12.2008 in favour of one Etti Gounder who happened to be father-in-law of the second defendant. However, the said agreement did not fructify. Since the first defendant claimed exclusive right towards the suit property, the plaintiff was constrained to file the above suit for partition and separate possession of his half share.
4. The first defendant resisted the suit contending as follows :
The purchase of the land out of the sale proceeds of the property allotted to the first defendant in the partition that took place in the year 1947 is admitted. The first defendant would contend that the construction was put up with the aid of the said remaining amount as well as with the aid of his own income. Therefore, according to him the building belongs to him. The claim that there was oral release by the first defendant on 08.08.2008 was stoutly denied.
5. The learned Principal District Judge, Namakkal, who tried the suit on the above pleadings framed the following issues :
1.Whether the plaintiff is entitled to half share in the properties?
2.Whether the plaintiff is entitled to permanent injunction restraining the defendants from interfering, disturbing, alienating the suit property?
3.To what relief if any the plaintiff is entitled to?
6. The plaintiff examined himself as PW1 and Exs.A1 to A13 were marked. The defendant examined himself as DW1 and one other witness as DW2 and Ex.B1 and B2 were marked.
7. On consideration of the oral and documentary evidence the learned trial Judge concluded that the suit property absolutely belongs to the first defendant. Therefore, the plaintiffs suit for partition is not maintainable. The learned Principal District Judge also concluded that the plea of oral release by the plaintiff cannot be accepted. On the aforesaid findings the learned Principal District Judge dismissed the suit with compensatory cost of Rs.10,000/-. Aggrieved the plaintiff is on appeal.
8. I have heard Mr.N.Manokaran, learned counsel appearing for the appellant and Mr.R.Thirugnanam, learned counsel appearing for the first respondent/ first defendant. The second defendant though served is not appearing either in person or through counsel.
9. Mr.N.Manokaran, learned counsel appearing for the appellant would point out to the following plea of the first defendant in his written statement:
,e;jg; gpujpthjpa[k; \ VS:h; fpuhkj;jpy; g{h;tPfkhfg; ghj;jpgg;gl;l epy';fs;. mjpYs;s fpzW. tPL rfpj';fisa[k; nrh;j;J ,e;jg; gpujpthjp jdJ kidtp mj;jhak;khs; kfdhd thjp. kfshd 2?k; gpujpthjp Mfpnahh;fSld; nrh;e;J 22/2/1989 y; xU gukrptk; kfd; utp vd;gtUf;F U:/1.30.000-? f;F fpuak; bra;J me;j Mtzk; g[Jr;rj;jpuk; rhh;gjpthsh; mYtyfj;jpy; Mtz vz;/56-89 Mf gjpt[ bra;ag;gl;Ls;sJ vd;gJk;. mJ rkak; FLk;g brytpw;Fk;. ntW epyk; th';Ftjw;Fk;. kfSf;F rPh;thpir bra;a ntz;oa[k;. tpahghuj;jpw;Fk; ,e;jg; gpujpthjp \ bjhifia bgw;Wf; bfhz;lhh; vd;gJ cz;ik/ mt;thW tpw;w bjhifia bfhz;L ,e;jg; gpujpthjp 27/11/1989y; xU uhkrhkp tifauhtplkpUe;J jhth epyj;ij fpuak; bgw;whh; vd;gJk; cz;ik kw;wgo Vnjh \ fpuak; bgw;w gpd;dp;l;L thjp ,e;jg; gpujpthjp \ mj;jhap Mfpnahh;fs; nrhh;e;J ciHj;j tUkhdj;ij bfhz;L \ tPjk; fpuak; bgw;w epyj;jpy; tPL fl;odhh;fs; vd;W brhy;tJ KGg; bgha;/ ,e;jg; gpujpthjp g{h;tPf brhj;ij tpw;w tifapy; kPjkpUe;j bjhifa[ld; mth; khl;L tpahghuk; bra;J te;j tifapy rk;ghjpj;J itj;jpUe;j bjhifia bfhz;Lk; gog;goahf jhth epyj;jpy; tPL fl;o te;Jk; xU gFjpapy; FoapUe;J bfhz;Lk; kw;w gFjpfis thliff;F tpl;Lk; mDgtpj;J te;jhh;/
10. In his Proof affidavit as DW1 the first defendant had stated as follows:
2. vdf;F g{h;tPfkhfg; ghj;jpag;gl;l VS:h; fpuhkj;jpy; ,Ue;j brhj;Jf;fis 22/2/1989y; xU gukrptk; kfd; utp vd;gtUf;F U:/1.30.000-? f;F fpuak; bra;J bfhLj;J vd; Flk;g brytpw;f;Fk; ntW brhj;Jf;fis fpuak; th';Ftjw;Fk; vd; kfspd; jpUkzj;jpw;F rPh;thpir bra;at[k; tpahghuj;jpw;f;Fk; \ bjhifapidg; bgw;Wf; bfhz;nld;/ me;j bjhifapid bfhz;L ehd; 27/11/1989 y; xU uhkrhkp tifawhtplkpUe;J jhth epyj;jpid U:/30.000-? f;F fpuak; bgw;nwd;/
3. g{h;tPf brhj;ij tpw;w tifapy; vd;dplk; kPjKs;s bjhifa[ld; ehd; khl;L tpahghuk; bra;J te;j tifapy; rk;ghjpj;J itj;jpUe;j bjhifia bfhz;Lk; gog;goahf jhth epyj;jpy; tPL fl;o Koj;J xU gFjpapy; FoapUe;J bfhz;Lk; kw;w gFjpfis thliff;F tpl;Lk; mDgtpj;J te;njd;/
11. In the cross examination DW1 would state that the ancestral property that was allotted to him was sold by him as well as his son, daughter and wife and the sale deed itself recites that the property was sold for purchase of certain other properties for the family. It is also admitted that the suit property was purchased out of the sale proceeds of the ancestral property that was sold on 22.02.1989. Relying upon the above pleading and evidence, Mr.N.Manokaran would contend that the Trial Court erred in dismissing the suit.
12. Mr.R.Thirugnanam, learned counsel appearing for the first respondent would contend that though the source of money for the purchase of land is admitted to be from ancestral property the construction was put up by the first defendant out of his own income. Therefore, the plaintiff cannot be entitled to half share as pleaded by him. He would also contend that the plaintiffs case that there was an oral release is not legally tenable.
13. On the above arguments the following points arises for determination:
1. Whether the suit property can be held to be ancestral property in which the plaintiff, second defendant would get right by birth?
2. Whether the oral release pleaded by the plaintiff is legally valid ?
3. Whether the trial Court was right in dismissing the suit with compensatory cost?
Point No.1 :
14. The case of the plaintiff is that the suit property was purchased on 27.11.1989, for a consideration of Rs.30,000/-, in the name of the first defendant in his capacity as manager of the joint family out of the sale proceeds of the ancestral property. As regards the construction, the plaintiff would contend that the construction was put up partly out of the sale proceeds and partly out of joint exertion of the plaintiff, first defendant as well as mother of the plaintiff/ wife of the first defendant.
15. Per contra, the first defendant, while admitting that the land was purchased from and out of the sale proceeds of the joint family property would further contend that the construction was put up partly out of the funds that remained in the sale consideration of the ancestral property and partly out of his own funds. He would claim that he was doing cattle business and that income was utilized by him for putting up the construction over the suit property.
16. I have already extracted the pleadings of the first defendant with reference to the acquisition of the land and construction over the said land. His evidence as DW1 would also point out that the source of consideration for the purchase was definitely from the sale proceeds of the joint family property. As regards construction the first defendant would contend that part of it was his own exertion. This being the case, I do not think the learned Principal District Judge was right in concluding that the entire property is separate property of the first defendant and the plaintiff, as son, cannot seek partition of his share.
17. The learned Principal District Judge has mis-directed himself in over looking the vital admissions made by the first defendant in his written statement as well as in his evidence. May be that the plaintiff has opened his mouth too wide, but that does not grant license to the Court to over look the pleadings in a suit for partition and dismiss the suit with compensatory cost.
18. In the light of the pleadings as well as oral evidence of the first defendant extracted supra it is clear that the suit property was purchased out of the sale proceeds of the ancestral property as well as part of the consideration received by the sale of the ancestral property was utilized in construction of the house in the suit property. This certainly leads to the inference that the suit property is also a joint family property. I am therefore of the considered opinion that the learned Principal District Judge is not right in dismissing the suit in entirety.
Point No.2 :
19. The plaintiff has pleaded an oral release by the first defendant on 08.08.2008. To butress his case regarding oral release he had pleaded that there was sale agreement executed by him and the second defendant on 31.12.2008 in favour of the father-in-law of the second defendant, it is also claimed that the sale agreement is a registered one. The sale agreement has been marked as Ex.A3. However, the same cannot tantamount to a release of the share of the first defendant.
20. The plaintiff wants the Court to presume that the first defendant relinquished his share by producing Ex.A3 sale agreement. The same cannot be done in derogation of the statutory provisions contained in the Registration Act. It is the clear case of the plaintiff that the first defendant received a sum of Rs.3,00,000/- and relinquished his interest over the property. Such transaction cannot be made orally. There cannot be an oral release for consideration of Rs.3,00,000/-.
21. Therefore, the claim of the plaintiff that there was an oral release by the first defendant and hence he is entitled to half share in the suit property cannot be accepted. What is the extent of share that the parties would be entitled to has to be decided. The first defendant is alive as on today. Therefore, the Section 6 of the Hindu Succession act as amended by Act 39 of 2005 would apply. Therefore, the plaintiff, the first defendant and the second defendant would be the coparcners each entitled to 1/3 share.
Point No.3 ;
22. The trial Court had not only dismissed the suit but dismissed the same with compensatory cost of Rs.10,000/-. The award of compensatory costs is against Section 35(a) of the Code of Civil Procedure. Therefore, I find that the trial Court was not justified in imposing cost of Rs.10,000/-. Probably the learned trial Judge felt that the son should not have filed a suit for partition against his father. However, it is the order of the day and the same has been taken in right spirit.
23. In fine this appeal is allowed. The suit in OS.No.168 of 2010 will stand decreed granting preliminary decree declaring the 1/3 share of the plaintiff in the suit property. However, there will be no order as to costs in view of the relationship of the parties. Consequently, connected Miscellaneous Petition is closed.
24.08.2017 dsa Index : No Internet: Yes Speaking order To The Principal District Judge, Namakkal.
R.SUBRAMANIAN,J.
dsa A.S.No.8 of 2012 and M.P.No.1 of 2012 24.08.2017