Madras High Court
K.Govindarajan vs K.Subramanian on 3 October, 2012
Equivalent citations: AIR 2013 MADRAS 80, (2012) 7 MAD LJ 776 (2013) 2 CIVLJ 598, (2013) 2 CIVLJ 598
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.10.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.273 of 2005
and
C.M.P.No.3706 of 2005
and
V.C.M.P.No.7013 of 2005
K.Govindarajan ... Appellant
vs.
K.Subramanian ... Respondent
This second appeal is filed against the judgment and decree dated 26.10.2004 passed by the learned Additional District Judge cum Fast Track Court, No.II, Salem in A.S.No.73 of 2003 in confirming the judgment and decree dated 20.01.2003 passed by the learned Subordinate Judge, Sankari in O.S.No.105 of 2000.
For Appellant : Mrs.Mythili Suresh for
M/s.Sarvabhauman Associates
For Respondent : Mr.N.Manokaran
JUDGMENT
This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 26.10.2004 passed by the learned Additional District Judge cum Fast Track Court, No.II, Salem in A.S.No.73 of 2003 in confirming the judgment and decree dated 20.01.2003 passed by the learned Subordinate Judge, Sankari in O.S.No.105 of 2000.
2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court.
3. Heard both sides.
4. The long and short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
a] The respondent/plaintiff, filed the suit seeking the following reliefs:
To pass a judgment and decree as against the defendant -
(i) directing the division of suit A and B schedule properties into two equal shares by metes and bounds taking into consideration the good and bad nature of the soil equities of just and fair division and for the allotment of one share to the plaintiff.
(ii) granting permanent injunction interdicting the defendant from in any way excluding the plaintiff from the joint possession of the suit A and B schedule properties.
(iii) and for costs (extracted as such) in respect of two items of the properties described in the schedule.
b] The defendant resisted the suit by filing the written statement admitting his half share and also the half share of the plaintiff over the A scheduled property, but denying the share of the plaintiff in the B scheduled property.
c] The trial court framed the relevant issues.
d] During trial, the plaintiff examined himself as PW1 and marked Exs.A1 to A20 and the defendant examined himself as DW1 and marked Exs.B1 to B12.
e) Ultimately, the trial court decreed the suit and passed the preliminary decree allotting half share each to the plaintiff and to the defendant in the A scheduled property and dismissed the prayer of the plaintiff in respect of the B scheduled property. As against which, appeal was preferred by the defendant for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court.
f) Being aggrieved by and dissatisfied with the judgments and decrees of both the courts below, the defendant has preferred this second appeal suggesting various substantial questions of law.
5. My learned predecessor framed the following substantial questions of law:
1. When admittedly some of the properties have been left out, whether the suit filed by the respondent for partition is sustainable, especially when it is bad for partial partition?
2. When the monies acquired by the respondent out of his earnings, which is the result of his education with the aid of joint family funds tantamount to joint family properties and is liable to render accounts for the same, whether the courts below are correct in law in holding that the respondent is not liable to render accounts since his earnings are his separate property?
3. Whether the courts below are correct in law in discarding Exs.B1 to B12 which would categorically negate the case of the respondent?
(extracted as such)
6. Heard both sides.
7. Indubitably and indisputably, unassailably and unarguably, the germane facts for the disposal of this second appeal would run thus:
a) The plaintiff is the younger brother of the defendant-Govindarajan. In the course of the proceedings, the plaintiff gave up his right over the B scheduled property, which was claimed to be the absolute property of the defendant as he purchased it from out of his own funds. So far as the A scheduled property is concerned, it originally belonged to the father of the plaintiff and the defendant and he released his share in favour of his sons on 03.08.1991. However, there was no partition emerged relating to the A scheduled property between the plaintiff and the defendant. Hence, the suit was filed by the plaintiff seeking the aforesaid reliefs.
b) Per contra, the defendant would contend that from out of the joint family funds, the plaintiff got educated and thereby he also acquired properties and all those properties also should be put into the common hotch pot for partition and that he should also render accounts.
c) The fact remains that no counter claim was made by the defendant and even in the written statement, the schedule of property was not given seeking partition of those properties by paying appropriate court fee.
d) The trial court after considering the pros and cons of the matter, ordered partition relating to the A scheduled property to the effect that the plaintiff and the defendant are entitled to half share each and the rest of the suit claim was dismissed as against which, the defendant only preferred appeal, for nothing but to be dismissed.
e) The first appellate court correctly adverting to the decision of the Hon'ble Apex Court reported in AIR 1992 SC 197 [Chandrakant Manilal Shah and another vs. Commissioner of Income-Tax Bombay II] held that the plaintiff cannot be called upon to render accounts or put his self acquired properties into the common hotch pot.
8. During the hearing of this second appeal also, nothing has been brought to my notice as on what basis the plaintiff should render accounts of his earnings and also put all the properties he earned out of such learning into the common hotch pot. Simply because, the plaintiff admitted that he got his education, M.Sc., B.Ed., during the life time of his father that it does not mean that it should be construed that what all he acquired out of his salary should be put into common hotch pot. Section 3 of The Hindu Gains of Learning Act (1930) [Act XXX of 1930] is extracted here under for ready reference:
"3. Gains of learning not to be held, not to be separate property of acquirer merely for certain reasons Notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of -
(a) his learning having been, in whole or in part, imparted to him by any member, living or deceased, of his family, or with the aid of the joint funds of his family, or with the aid of the funds of any member thereof, or
(b) himself or his family having while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof."
as per which, the plaintiff cannot be called upon to put his properties into the common hotch pot for division. Since the law is pellucid and palpable, clear and unambiguous, there is no scope for confusion or confabulation.
9. There is nothing to indicate and exemplify that the plaintiff acquired any property directly from out of the income of the joint family nucleus. If that be so, the matter would be entirely different. But that is not the case here.
10. The first appellate court is the last court of facts, which after analysing the evidence adduced, gave a finding confirming the findings of the trial court to the effect that the properties purchased by the plaintiff in his name and in the name of his relatives cannot be called upon to be put into the common hotch pot and the defendant cannot claim any share in that.
11. Exs.B1 to B12 are relied upon by the defendant to claim share in the properties purchased by the plaintiff in his name or in the name of his relatives. Ex.B1 is the partition deed of the year 1996, which emerged between the parties.
12. Both sides in unison would admit that Exs.B1 to B12 are having nothing to do with the partition relating to the A schedule is concerned. Those are all documents relating to the properties, which were already got partitioned between the parties. Now the partition is only with regard to the A scheduled property, over which there exists dispute.
13. Both the courts took into consideration of the documents and gave a finding that relating to the A scheduled property is concerned, the plaintiff and the defendant are having equal shares and there is no knowing of the fact as to how such a finding is bad in law.
14. The learned counsel for the defendant/appellant would virtually echo the cri de coeur of her client to the effect that as of now her client is residing in item No.7 of the A scheduled property, which is a house property and he might be permitted to remain there and that property might be allotted along with the other portions in other items constituting his half share in the A scheduled property, in the final decree.
15. The learned counsel for the plaintiff would object to the same by pointing out that these are all matters to be dealt with by the trial court during the final decree proceedings.
16. Both sides in unison would submit that before the trial court, the Commissioner's report is pending and the Commissioner, who was appointed by the court visited the suit property and suggested ways and means of dividing the suit properties by metes and bounds. As such, the trial court, which is seized of the final decree petition has to take a decision on that and if the appellant/defendant is aggrieved, it is open for him to approach the higher forum.
17. Accordingly, the substantial questions of law are answered to the following effect:
The substantial question of law No.1 is decided to the effect that the suit is bad for omission of certain properties in the schedule of the plaint for partition.
The substantial question of law No.2 is decided to the effect that as per Section 3 of The Hindu Gains of Learning Act (1930) [Act XXX of 1930], whatever property acquired by the plaintiff from out of his skill and learning cannot be brought into the common hotch pot and he cannot be called upon to render accounts also in respect of his earnings.
The substantial question of law No.3 is decided to the effect that the courts below are right in discarding Exs.B1 to B12 as against the defendant.
18. In the result, I could see no perversity or illegality in the judgments and decrees of both the courts below, warranting interference in this second appeal and accordingly, the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
03.10.2012
vj2
Index : Yes/No
Internet : Yes/No
To
1. The Additional District Judge
cum Fast Track Court, No.II, Salem
2. The Subordinate Judge, Sankari
G.RAJASURIA, J.,
vj2
S.A.No.273 of 2005
04.10.2012