Madras High Court
Damodaran vs Poongavanam Ammal on 18 October, 2016
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2016
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
A.S.No.769 of 2008
1.Damodaran
S/o.Elumalai Naicker
2.D.Gowri
W/o.E.Damodaran ... Appellants
Vs
1.Poongavanam ammal
2.E.Jayaraman
S/o.Ellumalai Naicker
3.E.Selvaraj,
S/o.Elumalai Naicker
4.E.Mahendran
S/o.Elumalai Naicker
5.G.Mallika,
W/o.Ganapathy
6.E.Selvarani
W/o.Karunakaran
7.S.Karpagam
W/o.Srinivasan
8.Varalakshmi
W/o.Indrakumar
9.Ramachandran
S/o.Munusamy
10.Saridha
D/o.Ramachandran
11.Deepa
D/o Ramachandran ... Respondents
This appeal is filed against the judgement and decree in O.S.No.199 of 2004, on the file of the Fast Track Court No.IV-cum-Additional District and Sessions Judge, Poonamallee dated 29.06.2007.
For Appellants : Miss R.Sripriya for
Mr.V.Raghavachari
For Respondents : Mr.R.Bharath Kumar
J U D G M E N T
Defendants 1 and 2 in O.S.No.199 of 2004 on the file of the Fast Track Court No.IV-(Additional District and Sessions Judge), Poonamallee, are the appellants in the above appeal. The suit O.S.No.199 of 2004 was filed by the plaintiffs, who are wife, children and grand children of Elumalai Naicker, seeking partition and separate possession of 1/10th share to each of the plaintiffs. The genealogy of family of Elumalai Naicker is as follows:
Elumalai Naicker (died on 21.12.1970) Wife Poongavanam Ammal (1st Plaintiff) Sons Daughters
1.E.Dhamodaran Ist defendant 1. Malliga - 5th plaintiff Gowri (wife) - 2nd defendant 2.Selvamani - 6th plaintiff
2.E.Jayaraman - 2nd plaintiff 3.Kumari (died)- 7th plaintiff
3.E.Selvaraj - 3rd plaintiff L.Rs.Ramachandran - 10th Plaintiff
4.E.Mahendran - 4th Plaintiff Saritha - 11th Plaintiff Deepa - 12th Plaintiff
4. Karpagam - 8th Plaintiff
5. Varalakshmi - 9th Plaintiff
2. The wife, three sons and five daughters of the deceased Elumalai Naicker are plaintiffs. The 7th plaintiff Mrs.R.Kumari died pending suit and her legal representatives namely, her husband and two daughters, were added as plaintiffs 10 to 12. The first defendant is the eldest son of the deceased Elumalai Naicker and the second defendant is wife of the first defendant.
3. According to the plaintiffs, the deceased Elumalai Naicker had left behind 2 acres and 82 cents of cultivable lands described as items 1 to 5 of the plaint schedule at the time of his death. The first defendant, who was the eldest son, was managing the Estate of the family as Kartha. Except the eldest daughter Mallika, other daughters and sons remained unmarried, when Elumalai Naicker died.
4. The plaintiffs had claimed that the other items of suit properties were acquired from and out of the income from the joint family properties, that were being managed by the first defendant. The plaintiffs also claimed that neither the first defendant nor the second defendant had any separate sources of income to have purchased the properties that stand in their names and all the suit properties namely, item Nos.6 to 26 were acquired out of the surplus income from the joint family nucleus of the above properties. With reference to item Nos.10, 23 and 25 which stand in the names of female members namely, the 1st plaintiff and 2nd defendant, the plaintiffs had specifically pleaded that the purchasers were made benami in their names. Item No.22 is a mortgage deed for Rs.30,000/- advanced to one P.Rajendran. On the aforesaid pleadings, the plaintiffs had claimed that they are entitled to 1/10 share each in the suit properties.
5. The defendants 1 and 2 resisted the suit contending as follows:
The fact that items 1 to 5 in the plaint schedule measuring about 2 acres and 82 cents was left behind by Ellumalai Naicker was admitted. The 1st defendant however, would claim that the estate left by his father was very little and the income from the same was not sufficient to maintain a large family consisting of his mother, three brothers and four sisters apart from himself. He had also claimed that he was running a business in paddy and rice. He was also cultivating the lands on lease. He would claim that he was running a bullock cart on hire. The 1st defendant would also contend that he performed the marriages of his sisters and brothers and his brothers had set up separate residences themselves, soon after their marriage and they have been making out their livelihood and acquiring properties from their respective avocations.
6. The 1st defendant had further claimed that there was no Hindu Joint Family and the plaintiffs were dependents on him. On the above contentions, the first defendant had sought for dismissal of the suit. He had further stated that he has no objection for partition of the estate of his deceased father. The 2nd defendant adopted the written statement filed by the 1st defendant.
7. At the time of Trial, 3rd plaintiff was examined as PW1. The 2nd plaintiff was examined as PW2 and one Elumalai Naicker who claims to be the President of the Village Panchayat as well as Mediator, was examined as PW3. Exhibits A1 to A4 were marked on the side of the plaintiffs and Exhibits X1 to X15 were marked through PW3. Defendants 1 and 2 were examined as DW1 and DW2. Exhibits B1 to B6, being sale deeds, were marked on the side of the defendants.
8. The learned Additional District Judge, Poonamallee (FTC-IV) Poonamallee, who tried the suit, had framed the following issues:
1.Whether the plaintiffs are entitled for partition of 9/10 share in the suit properties as prayed for?
2.Whether the plaintiffs are entitled for mesne profits as prayed for?
3.To what relief the plaintiffs are entitled to?.
9. Upon consideration of both oral and documentary evidences, the learned Additional District Judge, Poonamallee, decreed the suit granting a preliminary decree as prayed for by the plaintiffs. The suit in respect of mesne profits was dismissed.
10. I have heard the learned counsel Ms.R.Sripriya appearing for the appellants and Mr.R.Bharath Kumar, learned counsel appearing for the respondents.
11. The following points are framed for determination in this appeal:
1.Whether all the suit properties could be said to be the joint family properties acquired out of the surplus income from items 1 to 5 in the suit schedule?
2.Whether the plaintiffs would be entitled to seek partition of the properties, which admittedly stand in the names of 1st plaintiff and 2nd defendant (female members) on the plea that they were purchased in their names benami?
3.Whether the plaintiffs are entitled to claim 1/10 share each on the pleadings that the properties are joint family properties belonging to the family?
4.Whether the plaintiffs would be entitled to mesne profits as claimed by them?
12. For better appreciation, the properties set out in the suit schedule could be classified as follows:
a)Admitted ancestral properties Item Nos. 1 to 5 of the suit schedule, measuring an extent of 2 acres and 82 cents.
b)Item Nos.6,7,8 and 9 stand in the name of 1st defendant;
c)Item No,10 stands in the name of the 1st plaintiff;
d)Item No.11 stands in the name of plaintiffs 3 and 4;
e)Item No.12 stands in the name of 1st defendant;
f)Item No.13 stands in the name of 1st defendant
g)Item Nos.14 to 17 stands in the name of 1st defendant and plaintiffs 2,3 and 4;
h)Item No.18 stands in the name of the 1st defendant;
i)Item No.19 stands in the name of the 3rd plaintiff;
j)Item No.20(a) and 20(b) are house properties which admittedly belong to the family of Elumalai Naicker;
k)Item No.21, Tractor stands in the name of D1;
l)Item No.22 is mortgaged deed stands in the name of 1st defendant;
m)Item Nos. 23 to 25 stand in the name of 2nd defendant;
n)Item No.26 stands in the name of Thayarammal, the third party.
The learned counsel appearing for the appellants would submit that she is not seeking any claim on the suit schedule item No.26. Her case is that the said item of property does not belong to the family of the defendants and the defendants are not interested in claiming shares over the said property. The learned counsel appearing for the plaintiffs is also unable to point out any material to show that item No.26 namely, 75 cents of lands in S.No.285/2B belongs to their family.
Point No.1
13. From the documents produced, it is seen that various items of properties have been acquired by the parties either jointly or separately from the year 1971 to 1993. The earliest acquisition is item No.10 of the suit properties was acquired by the 1st plaintiff on 26.07.1971 as evidenced by Ex.X-9. It is also in evidence in the form of Ex.X1 namely, the partition deed dated 22.08.1991, the partition had taken place between the grand sons of Kolapuri Naicker. A perusal of the said document would show that 1) Damodaran, S/o.Elumalai Naicker, the 1st defendant, 2) Rajendran, son of Perumal Naicker and 3) Dhanasekaran, son of Appadurai Naicker, have entered into a partition of the properties that were purchased by Kuppammal, the wife of Kolapuri Naicker and the properties that were allotted to Kolapuri Naicker in the partition took place in the year 1915. The truth and validity or genuineness of this document has not been questioned by either of the parties.
14. The plaintiffs themselves, in fact, relied upon the said document to establish their claim that their family was in possession of the ancestral properties which formed the nucleus for acquisition of other properties that stand in the names of the parties to the present lis. Though there is no evidence to show that other two brothers of Elumalai Naicker, namely, Perumal and Appadurai had no other legal heirs apart from Rajendran and Dhanasekaran, who were parties to the partition deed dated 22.8.1991 (Ex.X1), it could be safely presumed that the three branches namely, Elumalai's; Perumal's and Appadurai's were represented by one of the sons in the said partition deed and allotment of the properties was made to each branch. The above conclusion is inescapable because of the admitted case of the parties, the properties that were allotted to first defendant under the said partition deed dated 22.08.1991 are ancestral properties allotted to Elumalali Naicker's branch.
15. Further, it is in evidence that the sons of Elumalai Naicker, have been living together. Of course, the 1st defendant would claim that the other plaintiffs, viz., plaintiffs 2, 3 and 4 were depending on them. It is also admitted case of the parties that the acquisitions of properties would have been in the names of the 3rd and 4th plaintiff, the 1st defendant and 3rd and 4th plaintiff, the 1st defendant and 2nd, 3rd and 4th plaintiff etc. Some of the properties also stand in the name of the 3rd plaintiff alone as well as the first defendant alone. The first defendant as DW1, in his cross examination, deposed as follows:
"FLk;gj;jpd; K:j;j kfd; vd;w Kiwapy; FLk;gj;ij eph;tfpj;J te;njd; vd;why; mJ rhp/ vdnt tptrhaj;jpy; cs;s tut[ bryt[ ehnd eph;thfpj;J te;njd; vd;why; rhp/ vdnt ,e;j brhj;Jf;fs; th';fpaJ vy;yhk; ehd; K:j;j kfd; vd;gjhy; FLk;gj;ij eph;thfpj;J Kiwapy; th';fpa brhj;J vd;why; mJ rhp jhd;/"
He had also further admitted that he had agreed for partition of the properties, except those that stand in the name of his wife, the second defendant. The relevant portion of the evidence in the cross examination of DW1 is as follows:
"2k; g";rhaj;J TLk; nghJ thjpfs; j!;jhnt$pfis g";rhaj;jhhplk; bfhLj;jhh;fs;/ 2k; g";rhaj;jpy; Mto brhj;J vd; kidtp bgahpy; ,Ug;gjhy; gphpf;fKoahJ/ kw;w brhj;Jf;fis ghfk; gphpj;J bfhs;syhk; vd;W Kot[ MdJ/ Mto brhj;J jtpu kw;w brhj;J gphpf;f xj;J bfhz;nlhk;/ Mdhy; gpd;g[ mth;fs; tuhjjhy; nkw;bfhz;L vJt[k; bra;aKoatpy;iy/"
16. In the light of the above categorical admission made by the first defendant as DW1, I am convinced that the properties that stand in the names of the male members, i.e., plaintiffs 2,3, and 4 and first defendant as well as the ancestral properties measuring about 2 acres 82 cents which are the subject matter of the partition deed dated 22.08.1991, the properties mentioned as items 20A and 20B in the suit schedule can be presumed to be ancestral properties in the hands of the joint family.
Point No.2
17. The learned counsel for the respondents would make a faint attempt to sustain the findings of the trial court on the ground that the properties purchased in the name of the wife or an unmarried daughter, is exempt in view of the provisions of Section 3 of the Benami Transaction (Prohibition) Act. This Court is unable to accept the said submission, in view of the statutory presumption created by Section 3 of the Benami Transaction (Prohibition) Act, 1998, which has not been dislodged by cogent and convincing evidence. Reference could be made to a decision of this Court in the case of Angamuthu Ammal vs. Govindaraju, reported in (2015) 2 CTC 540, wherein it was held that unless the presumption is dislodged by cogent and convincing evidence, the properties that stand only in the names of the female members cannot be treated as joint family properties or otherwise. Recently, the Hon'ble Supreme Court in Om Prakash Sharma @ O.P.Joshi vs. Rajendra Prasad Shewda and others reported in 2016 2 Law weekly 630, has recognised the statutory presumption created under Section 3 of the Benami Transactions (Prohibition) Act, 1988. Hence, I am of the considered view that the suit has to fail with reference to the properties that stand in the name of the female members of the family, i.e., the 1st plaintiff and the 2nd defendant and they are item No.10 in the name of the 1st plaintiff and item Nos.23 to 25 in the name of the second defendant.
18. As regards other items of the property, viz., Items 1 to 9, 11 to 20(b) will be treated as joint family properties belonging to the family of Elumalai Naicker. Insofar as item 22, which is mortgage debt due to the first defendant, it is in evidence that the first defendant had filed a suit for recovery of money based on the said mortgage and the same is pending. It is seen that the said mortgage is executed during the year 1993 for a sum of Rs.30,000/-. I do not find any evidence to support the conclusion of the trial court that the mortgage debt was also advanced from the funds of the family. However, in view of the admissions made by the first defendant in his cross examination as extracted supra, the mortgage debt, if realised, will also be liable for partition.
19. With regard to item No. 21, it is a movable property viz., Mahendra Tractor. The first defendant has admitted that the same has been sold even during the year 1994 when the family was joint family. Therefore, there cannot be a decree of partition of the said tractor or trailer.
20. Insofar as item 26 is concerned, it is the case of the defendants that the said property stand in the name of Thayar Ammal, who is the 3rd party and it is not belonging to the family. The plaintiffs have also not adduced any evidence to prove the fact that the property was owned by the family at any point of time. Hence, the suit for partition in respect of the said item 26 is liable to be dismissed.
21. As regards item Nos.10 and 23 to 25 which stand in the name of the 1st plaintiff and 2nd defendant respectively, it should be pointed out that the plaintiffs' claim has to necessarily fail as it is specifically pleaded that those purchases were made by benamie in their names. I am afraid, such contention cannot be countenanced in view of the provisions of Benami Transactions (Prohibition) Act 1988. In this regard, it is worthwhile to refer to the case of R.Rajagopal Reddy and others vs. Padmini Chandrasekaran, reported in AIR 1996 Supreme Court 238 and the relevant portion of the judgment reads as follows:
"....22. As a result of the aforesaid discussion it must be held, with respect, that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that Section. Similarly the view that under Section 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, cannot be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came into force if such defences are not already allowed earlier. It must, therefore, be held, with respect, that the decision of this Court in Mithilesh Kumari's case (AIR 1989 SC 1247) does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these Sections came into force, is concerned. Accordingly, the question for consideration is answered in the negative."
Therefore, I am constrained to hold that the suit in respect of Item Nos.10,23,24 and 25 is liable to be dismissed.
Point No.3
22. Having found that items 1 to 9, 11 to 20(b) and 22 were ancestral properties belonging to the family, the next question that remains to be considered is the quantum of shares, which the plaintiffs and the first defendant would be entitled to. Once it is found, that the properties are ancestral properties and the predecessor-in-interest of the plaintiffs and the first defendant died on 21.12.1970, the unamended Section 6 of the Hindu Succession Act would apply. Hence, notional partition should be presumed as on the date of the death of Elumalai Naicker, which means that Elumalai Naicker and the four sons would get 1/5 share each in the properties.
23. The 1/5 share that is allotable to Elumalai Naicker will again be divided among his heirs, viz., his wife 4 sons and 5 daughters. Thus, each of them will get 1/10 of 1/5 i.e., 1/50 share. Thus the sons of Elumalai Naicker viz., the first defendant and plaintiffs 2 to 4 would each get 11/50 share and the daughters and the widow daughter will get 1/50 share each in the properties, which have been held to be ancestral. Unfortunately, the learned Additional District Judge had not adverted to either the Benami Transactions (Prohibition) Act and the admitted claim of all the parties that the properties are ancestral and as such they will have to be divided in terms of the Section 6 of the Hindu Succession Act, as the suit was filed prior to the amendment of the Act in the year 2005.
24. The learned District Judge had proceeded to decree the suit as prayed for with reference to all the items of the properties and she has however rejected, the claim had been made by plaintiffs for mesne profits. The plaintiffs have not filed an appeal or a cross objection against the said rejection. Hence, the judgment and decree of the learned Additional District Judge (FTC-IV), Poonamallee, are liable to be modified and they are accordingly modified as stated above.
25. The suit in O.S.No.199 of 2004 will stand decreed as follows:- There will be a preliminary decree declaring
i) the 1st defendant and plaintiffs 2, 3 and 4 would each be entitled to 11/50 share in item nos. 1 to 9, 11 to 20(b) and 22.
ii) the 1st plaintiff and plaintiffs 5, 6, 8 and 9 would each be entitled to 1/50th share in the above said properties.
iii) the plaintiffs 10 to 12, being the legal representatives of the deceased 7th plaintiff, would together be entitled to 1/50 share in the properties mentioned in Clause (1) supra.
26. The suit will stand dismissed with reference to items 10, 21 and 23 to 26. The decree of the trial court dismissing the suit, in respect of the mesne profits, stands confirmed.
27. In the result, the appeal is partly allowed and the judgment and decree of the trial court are modified as indicated above. There shall be no order as to costs, in view of the relationship of the parties.
18.10.2016 Index : Yes/No Internet: Yes/No vk / pvs Note to Registry:
Since, the appeal is partly allowed, the judgment and decree in O.S.No.199 of 2004 shall stand modified as follows:
i) the 1st defendant and plaintiffs 2, 3 and 4 would each be entitled to 11/50 share in item nos. 1 to 9, 11 to 20(b) and 22.
ii) the 1st plaintiff and plaintiffs 5, 6, 8 and 9 would each be entitled to 1/50 share in the above said properties.
iii) the plaintiffs 10 to 12, being the legal representatives of the deceased 7th plaintiff, would together be entitled to 1/50 share in the properties mentioned in Clause (1) supra.
To The Fast Track Court No.IV-cum-Additional District and Sessions Judge, Poonamallee R.SUBRAMANIAN,J vk / pvs A.S.No.769 of 2008 18.10.2016 http://www.judis.nic.in