Madras High Court
P.L.Lakshmanan vs P.L.R.M.Arunachalam Chettiar (Died) on 15 March, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.No.298 of 1996
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.298 of 1996
P.L.Lakshmanan ...Appellant/Plaintiff
Vs.
1.P.L.R.M.Arunachalam Chettiar (died)
2.AR.Meenakshi (died)
3.AR.Ramanathan
4.AR.Muthiah
5.PL.Gomathi Achi
6.PL.Arunachalam
7.C.Unnamlai Achi
8.Unnamalai Achi w/o Subramanian Chettiar (died)
9.SP.Annamalai
10.SP.Muthu (died)
11.SP.Palaniappan
12.Valliammai Achi
13.Unnamalai
14.Uma
15.Muthuraman
16.Adaikkammai
17.S.P.Visalakshi ..Respondent/2nd defendant
(Respondents 3 to 7 already on record are recorded as legal heirs of the deceased first and second
respondents0
(Respondents 12 to 15 are brought on record as legal heirs of the deceased tenth respondent)
(Respondents 16 and 17 are brought on record as legal heirs of the deceased eight respondent)
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure
Code, against the judgment and decree dated 28.02.1995 on the file of the
Court of the Subordinate Judge of Devakottai in O.S.No.87 of 1993.
For Appellant : Mr.A.R.L.Sundaresan
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For RR9, 11,
12 to 15 : Mr.R.Subramainan
For R16 & R17 : Mr.S.Parthasarathy
Senior Counsel
for Mr.R.Ponkarthikeyan
For R3 to R7 : No Appearance
For RR1, 2, 8 & 10: Died
JUDGMENT
Aggrieved over the decree and judgment of the trial Court dismissing the suit filed by the plaintiff in respect of the fourth item of property, the present first appeal is filed.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as follows:-
It is the case of the plaintiff that the plaintiff and the defendants 1 and 3 to 7 are the members of the joint hindu family, in which the first defendant is the kartha (Manager). Late Palaniappa Chettiar, who was the original ancestor of the parties (except defendants 2 & 5), had two wives namely, Unnamalai and Visalakshi. The said Palaniappa Chettiar after the death of the first wife Unnamlai had only one son by name, Ramanathan. The said Ramanathan after his marriage with Umayal, died without issues 2/18 http://www.judis.nic.in A.S.No.298 of 1996 born to them. The second wife Visalatchi died in the year 1973 leaving behind Arunachalam Chettiar, the first defendant and a daughter namely, Unnamalai, eight defendant. Arunachalam Chettiar's first son was Palaniappan and the defendants 3 and 4 are the younger sons of the first defendant. The first defendant's son, one Palaniappan died on 06.05.1990 leaving behind his wife, son and daughter, defendants 5-7. The eighth defendant's sons are the defendants 9 to 11. Visalatchi died on 28.12.1973.
(ii) It is the case of the plaintiff that the first defendant was adopted by the Umayal to her husband Ramanathan, when he was aged about 17 or 18 years old. The second defendant is the wife of the first defendant. The plaintiff and the defendants 6 & 7 are the children of the predeceased son of the first defendant namely, Palaniappan Chettiar and the fifth defendant is his wife. The properties described in the schedule are the joint family properties of the plaintiff and the defendants 1 and 3 to 7. The plaintiff is entitled to 5/64 shares in the said properties. The original ancestor Palaniappa Chettiar had also executed a will in a sound disposing state of mind bequeathing his property to the first defendant on 14.07.1957.
The residential house had already been divided between the first defendant and his sons.
(iii) Item Nos.1 to 3 mentioned in the schedule are the ancestral properties of the joint family. Item No.4 has been acquired out of the joint 3/18 http://www.judis.nic.in A.S.No.298 of 1996 family funds of the first defendant and his sons. The joint family funds had been advanced to one Ramasamy Chettiar for acquiring Item No.4. The first defendant joint family was the co-owner with the said Ramasamy Chettiar. When the first defendant left for foreign part, he had instructed his parents to settle with Ramasamy Chettiar and get the plot towards the joint family interest. The parents of the first defendnt, who were in a fiduciary relationship to him, especially to safeguard the interest of the family of the first defendant settled with Ramasamy Chettiar and obtained a sale deed dated 10.12.1957 in respect of Item No.4, which was brought into existence in the name of Visalakshi Achi, who had really acted as a trustee and in a fiduciary capacity for the benefit of the first defendant's joint family.
(iv) It is the further case of the plaintiff that the first defendant purporting to act as power of attorney had executed a nominal sale deed of Item No.4 in favour of the second defendant. The plaintiff submits that item No.4 is still in joint possession of the first defendant and other members of the joint family including the plaintiff. Hence, the sale deed has to be ignored as nonest and in order to avoid unnecessary contentions, the second defendant was also added as a party. Visalatchi Achi had no beneficial interest in the property and the first defendant could not also transfer any title.
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(v) It is further contended that Visalatchi Achi had also filed a suit against the first and second defendants in C.S.No.49 of 1975 and the same was dismissed. However, the appeal against the said order in O.S.A.No.93 of 1979 was allowed on 11.04.1988. It is the contention that the decree passed in the above suit is not binding on the plaintiff or his share and no question of resjudicata would arise as the plaintiff was not a party to the said suit. The defendants 8 to 11 neither had title nor in possession of Item No.4. Hence, the suit for partition.
4. Before the trial Court, on the side of the plaintiffs P.W.1 and P.W. 2 were examined and Exs.A1 to A18 were marked and on the side of the defendants no witness was examined and Exs.B1 and B2 were marked.
5. The defendants 3, 4 and 6 have filed a written statement claiming 1/4 share each. The defendants 8, 9 and 10 have filed a written statement stating that the suit is not maintainable and the suit has been engineered by the first and second defendants. The learned counsel appearing for the deffendants submitted that the issue regarding, Item No.4 was already decided in O.S.A.No.93 of 1979 and SLP filed against the said appeal was also dismissed. Item Nos.1 to 3 have been shown as joint family property, in which the defendants 1 and 2 have no right. The alleged contention that Item No.4 is the joint family property is denied. The 5/18 http://www.judis.nic.in A.S.No.298 of 1996 plalintiff have no right whatsoever in the suit property and the suit is barred by the principle of resjudicata.
6. On the basis of the above pleadings, the following issues are framed before the trial Court:-
1) Whether Item No.4 of the property belonged to the joint family?
2) Whether the suit is barred by Binami Protection Act?
3) Whether the suit is barred by principle of resjudicata?
4) Whether the suit is maintainable?
5) To what other reliefs the plaintiff is entitled to?
7. The trial Court after considering the evidence and the decree and the judgment made in the earlier suit in O.S.No.93 of 1997, dismissed the suit in respect of Item No.4 of the suit property. However, decreed the suit in respect of Item Nos.1 to 3. Aggrieved against the same, the present appeal suit came to be filed.
8. The learned senior counsel appearing for the appellant vehemently contended that the issue is only pertaining to Item No.4 purchased in the name of Visalatchi Achi, second wife of Palaniappa Chettiar, since she was a trustee and in a fiduciary relationship. The entire property in Item No.4 was purchased for the benefit of other members of the family. Exs.A4 to A7, ledger and account book prove the fact that the sale consideration has been 6/18 http://www.judis.nic.in A.S.No.298 of 1996 paid through bank from the joint family. Visalatchi has no independent income to pay the amount at the relevant point of time to purchase Item No.
4. Since the male members of the family were in abroad and frequently visted other countries, the document has been registered in the name of a female member.
9. The learned counsel for the plaintiff contended that the earlier judgments in O.S.No.49 of 1975 and O.S.A.No.93 of 1979 would not bind on the plaintiff. In the above suit, though the learned Single Judge has held that Visalatchi is only a Binami and she has not purchased the property, the Hon’ble Division Bench has set aside the judgment of the learned Single Judge on different reasons on the ground of estoppel. Hence, it is the contention that since the present suit is on different ground and as the plaintiff is not a party to the earlier suit, he has to certainly place the facts before this Court to show that the property purchased in the name of Visalatchi is only a joint family property for the benefit of others and she was only in fiduciary relationship. The Hon’ble Division Bench having accepted the title held that the first defendant being power agent, cannot deny the title of Visalatchi. Therefore, the above judgment will not prevent the plaintiff herein to establish Binami transaction. The transaction will not fall within the mischief of Prohibition of Binami Transaction Act, 1988. 7/18 http://www.judis.nic.in A.S.No.298 of 1996
10. The trial Court has simply dismissed the suit on the ground of resjudicata. No pleadings whatsoever have been filed to find out the plea of resjudicata. Admittedly, the plaintiff is not a party to the earlier suit. Therefore, the plea of resjudicata cannot be presumed. The plaintiff is not claiming right through the first defendant and in the earlier suit, the first defendant was not impleaded as Kartha of the family. Therefore, the finding in the said suit will not bind on the plaintiff.
11. In respect of his submission, he had relied upon the following judgments:-
(1) V.Rajeshwari (Smt) vs. T.C.Saravanabava [2004 (1) SCC 551] (2) Syed Mohd. Salie Labbai Vs. Mohd. Hanifa [1976 (4) SCC 780]
12. The learned counsel for the respondent submitted that the suit is nothing but a re-litigation and the plaint has been cleverly prepared by including Item No.4, which was also subject matter of the earlier suit, wherein the title of Visalatchi has been upheld by the Hon’ble Division Bench of this Court. The present plaintiff is the grandson of the first and second defendants. He has taken a plea as if the suit property was purchased in the name of Visalatchi, namely the natural mother of the first defendant. The order of the learned Single Judge has been set aside by the 8/18 http://www.judis.nic.in A.S.No.298 of 1996 Hon'ble Division Bench. Once the merger took place, the finding of the learned Single Judge cannot be relied upon for any other purpose. The first defendant is trying to achieve, what he could not achieve in the earlier suit by producing same evidence, which was presented in the earlier round of litigation, in respect of his grandson, who was only 19 years old. It is contended that Visalatchi was neither in fiduciary capacity nor as a trustee. Therefore, the question of purchasing the property in her name by other members of the family, when the other members are very much alive, does not arise at all. Hence, it is the contention that when the right of Visalatchi has already been decided in the earlier round of litigation, which went upto the Hon'ble Supreme Court and SLP also got dismissed, the present suit is nothing but an abuse of process of law and re-litigation. Hence, prayed for dismissal of the appeal.
13. In respect of his submission, he has relied upon the following judgments:-
(1) Tirumala Tirupati Devasthanams vs. K.M.Krishnaiah [(1998) 3 SCC 331] (2) Omprakash Verma and others vs. State of Andhra Pradesh and others [(2010) 13 SCC 158] 9/18 http://www.judis.nic.in A.S.No.298 of 1996
14. In the light of the above submission, now points arise for consideration in this appeal are:-
(1)When the title of Visalatchi was already decided in an earlier round of litigation, where the first and second defendants were the parties, the evidence of the first defendant, which was rejected in the earlier round of litigation, could be relied upon before this Court to prove the so called binami transaction?
(2) Whether the suit is nothing but a re-litigation? (3) To what other reliefs?
15. The genealogy, which is marked as Ex.A1 is not disputed by both sides. One Palaniappa Chettiar had two wives, namely Unnamalai and Visalatchi. The first wife Unnamalai had one son, namely Ramanathan. He married one Umayal. However, they have no issues. Umayal appears to have died in the year 1972. The second wife of Palaniappa Chettiar had one son namely, first defendant Arunachalam Chettiar and a daughter, namely Unnamalai, eighth defendant. Arunachalam Chettiar's first son said to have been given in adoption to Umayal on behalf of her husband Ramanathan as per customs prevailing in the community.
16. It is the case of the present plaintiff that the fourth item of property was originally purchased out of the joint family funds of the first 10/18 http://www.judis.nic.in A.S.No.298 of 1996 defendant. He had become legal heir through adoptive father Ramanathan. Therefore, though the plaint has filed in respect of other three items of property, namely Item Nos.1 to 3 claiming to be properties of the joint family of the legal heirs of Visalatchi, the fourth item has been included in the suit as if the property has been purchased within the income of one Ramanathan adoptive father of the first defendant. As the male members of the family were frequently in foreign, the first defendant has requested his parents, who are in the fiduciary relationship to him, to safeguard the family of the first defendant accordingly, the sale deed was registered in the name of the natural mother of the first defendant, namely Visalatchi on 10.12.1957. In the nutshell, the contention of the plaintiff is that the entire sale consideration has been paid under Ex.A4 to A7. It is an admitted fact that O.S.49 of 1975 was filed by Visalatchi against the first defendant, namely Arunachalam and his wife P.W.2, namezly Meenatchi for declaration and cancellation of the sale deed in respect of the 4th item of property.
17. The above suit has been filed by Visalatchi on the ground that sale deed, dated 20.05.1965 executed by the first defendant in favour of the second defendant herein is without authority or power and void in law. In the above suit, defence was taken by the first defendant herein that no consideration was paid by Visalatchi and property was purchased in the name of Visalatchi as desired by Arunachalam Chettiar. It was only a binami 11/18 http://www.judis.nic.in A.S.No.298 of 1996 transaction. According to him, the father of the first defendant therein Arunachalam Chettiar advanced a sum of Rs.3,900/- to the Ramasamy Chettiar. Hence, he took a defence as if he has purchased the property in the name of his natural mother. He has admitted the power of attorney in his favour. The learned single Judge of this Court in fact, has held that the property was purchased in binmani. In the appeal before the Hon’ble Division Bench of this Court, has framed the following issues:-
1.Whether the plea of Benami could be raised disregardful of the assertions in Ex.A-2 and the conduct of the first defendant?
2.Whether the suit is barred by limitation?
18. The Division Bench of this Court has allowed the appeal and set aside the findings of the trial Court namely, the learned Single Judge and decreed the suit as prayed for, consequently, set aside the sale deed executed in favour of the second defendant herein by the first defendant on the strength of power of attorney. SLP filed as against the above judgment and the same was also dismissed. Now, the present plaintiff, who is none other than the grandson of the first and second defendants, filed the suit for partition of other properties. In respect of entire 4th item, which was the subject matter of the earlier suit filed by Visalatchi, the right has been declared and she was declared as absolutely owner. Though the present 12/18 http://www.judis.nic.in A.S.No.298 of 1996 plaint reads as if he is claiming only as a joint family member and not through the first defendant, the entire pleadings in the plaint is nothing but replica of the written statement and the defence taken by the first defendant in the earlier suit.
19. In the earlier suit, it was the specific contention of the first defendant that the property was purchased in the name of Visalatchi and it was a binami transaction. However, such plea was negatived by the Hon’ble Division Bench. Therefore, when his main defence of the alleged binami has already been negatived by the Court and Visalatchi was declared as absolute owner, the first defendant relying upon the same evidence rendered in the earlier suit in suport of the present plaintiff is nothing but a re-litigation. The first defendant has conveniently filed the present suit in the name of the plaintiff, who is aged about 19 years to achieve what he could not achieve in the earlier round of litigation.
20. The entire evidence of P.W.1 when carefully seen, it is made clear that he is not aware of any facts. His entire evidence appears to be in hearsay, said to have been gathered only from his grandfather, namely P.W. 2, whereas, P.W.2 has produced the documents, which were already produced in the earlier suit. These documents and the evidence cannot be given much importance for the simple reason that the same defence was 13/18 http://www.judis.nic.in A.S.No.298 of 1996 already negatived in an earlier suit. Therefore, now it cannot be contended that since in the earlier suit, the first defendant was not added as Kartha, and added as power of attorney, the findings in the said judgment is not binding on the plaintiff. Such contention in view of these facts cannot be countenanced.
21. The first defendant was the elder member of the family at the relevant point of time. His specific stand that item No.4 was purchased in the name of Visalatchi as binami was negatived. Though, the Hon’ble Division Bench has not gone into the aspect of the binami in entirety, but one of the point framed for consideration is that whether the first defendant could raise the plea of binami disregardful to assertions in the sale deed. But at any event, the Hon’ble Division Bench has negatived the contention of binami transaction pleaded by the first defendant. Item Nos.1 to 3 said to be belonged to the members of the plaintiff's family and the 4 th item has been included in the suit, for the best reasons known to the plaintiff. The 4th item is included in the suit immediately after the earlier round of litigation, which went against the first and second defendants, the suit has came to be filed.
22. It is also relevant to note that as per the first defendant, he was given in adoption in the year 1933 as per Ex.A2 to one Ramanathan and 14/18 http://www.judis.nic.in A.S.No.298 of 1996 Umayal. When he has already left the natural father and went to the adoptive parents, treating her natural mother in purchasing the property as trustee of the other members of the family is highly improbable. It is also to be noted that as per the genealogy tree, the husband of Visalatchi died only on 15.08.1958 much after the purchase of the property in favour of Visalatchi on 10.12.1954. When the male member was very much alive, the question registering the property in the name of Visalatchi as trustee of the others, is highly improbable. Therefore, the plea of binami pleaded by the plaintiff, who appears to have no knowledge with regard to the earlier transaction and has gathered the information only from his grandfather, who had actively defended the earlier suit and the his defence was also negatived by the Courts, cannot be countenanced at any moment.
23. Though the learned Senior Counsel appearing for the appellant has placed much reliance on the fact the principle of res-judicata will not apply to this case, since the earlier pleadings had not been placed, such contention cannot be countenanced. In the judgment in the case of V.Rajeshwari (Smt) vs. T.C.Saravanabava [2004 (1) SCC 551], the Hon’ble Supreme Court in para 13 has held that the plea of res judicata is to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe in a given case only copy of the judgment is previous suit is filed in proof of plea of res-judicata and the judgment 15/18 http://www.judis.nic.in A.S.No.298 of 1996 contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. The very defence set up in the earlier suit is binami transaction. Though there was no specific finding by the Hon’ble Division Bench with regard to the Binami transaction, the Division Bench has set aside the findings of the trial Court and in one of the point for consideration was right under the Binami Transaction Prohibition Act, ultimately declared the title in favour of Visalatchi.
24. As rightly contended by the learned Senior Counsel that once the title has already been declared, the same plea cannot be adjudicated in a subsequent suit. In the case of Tirumala Tirupati Devasthanams vs. K.M.Krishnaiah [(1998) 3 SCC 331], the Hon’ble Supreme Court has held that a previous judgment not inter parties is admissible in evidence under Section 13 of the Indian Evidence Act as a transaction in which a right to property was asserted and recognized.
25. When the right to the property has already been ascertained and the right has been declared in favour of Visalatchi, the mother of the first defendant herein and mother-in-law of the second defendant, the claim of the plaintiff being grandson of the defendants 1 and 2, claiming the right as a joint family member, certainly barred by principle of res-judicata. 16/18 http://www.judis.nic.in A.S.No.298 of 1996 Similarly, the contention of the plaintiff that since the earlier suit was contested by the first defendant only as power agent not as Kartha, the principle of res-judicata will not be applied to the present case, cannot be countenanced. At any event, the suit is certainly barred by relitigation. Such litigation cannot be encouraged in the Court of law. When the right has already been declared and decided exclusively, if such technical plea is entertained in the Court of law, no litigation would see its logical end.
26. Therefore, this Court is of the view that the suit is nothing but an abuse of process of law and a re-litigation and the plea of binami has to fail. There was no reason as to why Visalatchi was treated as trustee, when her husband was very much alive at the relevant point of time. Considering the earlier judgment and analyzing the facts of the present case, this Court do not find any materials to interfere with the order of the trial Court. Accordingly, the points are answered.
27. In the result, this Appeal Suit is dismissed and the judgment of the trial Court is hereby confirmed. No costs.
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Index : Yes/No
Internet : Yes/No
ta
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A.S.No.298 of 1996
N.SATHISH KUMAR, J.
ta
To
1.The Subordinate Judge of Devakottai
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
A.S.No.298 of 1996
15.03.2021
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