Madras High Court
S.Ganthimathi vs N.Pavunambal on 2 March, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.12.2016
PRONOUNCED ON : 02.03.2018
CORAM :
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CS.No.1117 of 1992
S.Ganthimathi .. plaintiff
v.
1.N.Pavunambal
2.D.Gangabai
3.P.Thyagarajan
4.P.Parthasarathy
5.A.P.Gokul
6.P.Dhanasekar
7.P.Jeevanandam
8.P.Vivekanandam
9.G.Pranesh
10.G.Vignesh
11.G.Yuvanesh (minor rep by father and natural Guardian D5)
12.D.V.Goutham (minor rep by father and natural Guardian D5)
13.D.Rajasekar
14.Usha
15.Mohan
16.Sarala
17.Hari
18.Manju .. defendants
PRAYER : Civil suit is filed under Order IV Rule 1 of Original Side Rules r/w. Order XXIV :- (a)directing partition of the properties described in the schedule hereunder by metes and bounds and allotting one seventh share to the plaintiff in the said properties (b)directing the defendants to account for the income from the properties since 07.08.1985 (c)directing the defendants to pay the costs of the suit; and (d)to grant such further or other reliefs or reliefs as this Court may deem fit and proper.
For plaintiff : Mr.A.A.Lawrence.
For respondents : Mr.K.Kumar
for M/s.Sree and Associates
for D4 to D6.
Mr.P.Seshadri for D13 - No appearance.
J U D G M E N T
The civil suit is filed by the plaintiff for partition of the properties described in the schedule by metes and bounds by allotting 1/7th share to the plaintiff.
2. The plaintiff and the defendants 1 to 6 are sons and daughters of late Ranjithammal and late A.D.Parasurama Chettiar.
3. The case of the plaintiff is that her mother Ranjithammal died on 30.11.1980 and her father Parasurama Chettiar died on 07.08.1985 leaving behind the plaintiff and the defendants as their legal heirs.
4. The father of the plaintiff was carrying on empty bottle business as sole proprietor under the name and style A.D.Parasurama Chettiar and sons and all the suit properties have been purchased by him out of the funds earned from the empty bottles business and though some properties stands in the name of defendants 3 to 6 herein, they are also purchased only out of the funds earned by her father. According to plaintiff, she is entitled to 1/7th share in all the suit schedule properties. Before getting married, the plaintiff rendered her tireless service to develop the business and for the welfare of the family, the defendants cannot deny or refuse the same. The plaintiff's marriage was solemnized with P.Subramani, at that time her parents as well as the defendants assured that she would be given her due share in the suit properties at appropriate time, no proper sreedhana was given at the time of her marriage. Further, during the life time of plaintiff's mother Ranjithammal directed her husband as well as the defendants herein to settle the house site situated at No.31, I Street, New Colony, VOC Nagar, Madras-102 morefully described in the suit schedule, the defendants as well as the father of the plaintiff promised the plaintiff that they would settle her share in appropriate time, so far the same has not been fulfilled by the defendants as well as by the deceased father during his lifetime.
5. The plaintiff further states that she was patiently waiting on the fond hope that the defendants and her father would settle the shares, in the meanwhile, the father of the plaintiff died on 07.08.1985, even after her father's death, the defendants did not come forward to settle the share to the plaintiff. Thereafter, the plaintiff issued legal notice to the defendants herein on 14.10.1991 and the same were acknowledged by them and they have not replied to the legal notice. The plaintiff has also issued public notice on 18.10.1991 through the Tamil daily 'Malai Murasu'. The plaintiff claims 1/7th share in the suit schedule properties and mesne profits eversince from her father's death i.e, on 07.08.1985.
6. The defendants 2, 5 and 6 filed their written statement stating that the father of the defendants and his brother A.D.Rajarathinam Chettiar came to Madras to eke out their livelihood, out of their hard work and prudent living they saved some money and started a business in old bottles and out of their earnings they purchased property bearing door No.5 and 7, new door No.2 and 4, V.V.Koil lane, Periamet, Madras and other properties. During 1954, the father of the defendants and his brother effected partition between themselves. In the said partition, properties bearing Door No.2 & 4, V.V.Koil lane, Periamet, Madras-3 were allotted to the defendants father A.D.Parasurama Chettiar.
7. During 1972, the father of the defendants started business in purchase and sales of old bottles under the name and style of A.D.Parasurama Chettiar & Sons as partnership firm with defendants 3, 4 and 5 as partners. In the year 1974, the 3rd defendant purchased house property bearing Door No.5, Venkatesa Gramani Street, Chindadripet, Madras out of his own funds. Subsequently, the 3rd defendant executed a sale deed dated 26.12.1990 in favour of Sarala Devi wife of P.Dhanasekar/6th defendant. The 5th defendant purchased a vacant site in 1974 and 1974 at No.31, New Colony, 1st street, VOC Nagar, Madras from and out of his own funds. Thereafter, the property at No.103, Pophams, Broadway, Madras-1 was purchased vide sale deed dated 21.05.1975 in the name of the Firm. Subsequently, during 1976, the 6th defendant herein was also admitted as a partner in the said firm. The plaintiff or the defendants 1 and 2 do not have any right, title or interest over any of the suit properties. The defendants 1 and 2 and the plaintiff got married 1958, 1962 and 1974 respectively and they were given sufficient jewels and sreedhanas at the time of their marriage.
8. Further, A.D.Parasurama Chettiar purchased the property bearing No.24A and 25, Veerasami Street, Arni from and out of his own funds. He bequeathed the same in favour of defendants 4, 5 and 6 under registered Will dated 24.01.1982. The properties in Nos.2 and 4, V.V.Koil lane, Periamet, Madras was settled in favour of defendants 3 to 6 in equal shares vide settlement deed dated 14.04.1980. Under the said settlement deed, 1/4th share in the property at No.103, Pophams, Broadway, Madras-1 was also settled in favour of the 6th defendant. Furthermore, the defendants 3 to 6 jointly purchased the property at No.54, Swami Pillai Street, Choolai, Madras-112 vide sale deed dated 17.11.1979, from and out of their earnings. Subsequently, they purchased the property in old Door No.8, New Door No.5, V.V.Koil Lane, Periamet, Madras-3 under a sale deed dated 23.06.1980. Thereafter, the defendants 3 to 6 effected partition among themselves vide registered partition deed dated 28.12.1990, under the said partition the property bearing Door No.103, Pophams Broadway, Madras was allotted to 3rd defendant. The property bearing old Door No.8, New Door No.5, V.V.Koil Lane, Periamet, Madras-3 was allotted to 4th defendant and the property bearing Door No.54, Swami Pillai Street, Choolai, Madras-112 was allotted to 6th defendant. Insofar as 5th defendant is concerned, the defendants 3, 5 and 6 paid a sum of Rs.1,00,000/- to the 5th defendant towards his share.
9. It is further alleged that the mother of the defendants and the plaintiff directed her husband and the defendants herein to settle the property bearing No.31, 1st street, VOC Nagar, Madras in favour of the plaintiff is not correct. The plaintiff is not entitled for any share in the suit schedule properties. The plaintiff sent legal notice in respect of property situated in No.31, New Colony, 1st street, VOC Nagar, Madras-10 and the said notice was not a demand for partition. Hence, the defendants did not send any reply. With regard to publication of notice in Malai Malar dated 18.10.1991 is concerned these defendants are not aware of it. The learned counsel submits that there is no merits in the above suit and prays for dismissal of the suit.
10. The third defendant filed written statement stating that the during the lifetime of his father Parasurama Chettiar, he and the defendants 4 to 6 have constituted a partnership firm in the name and style of A.D.Parasurama Chettiar and sons. The father of the defendants and the defendants 3 to 5 have worked hard for the upliftment of the company. In 1975, the property bearing Door No.103, Broadway, Madras was purchased out of the income earned from the business morefully described in item-1 of the suit schedule in the name of A.D.Parasurama Chettiar and the defendants 3 to 5. After the death of Parasurama Chettiar, the defendants 3 to 6 have partitioned the properties vide partition deed dated 28.12.1990, in the said partition deed the property situated in No.103, Broadway, Madras-108 was allotted to 3rd defendant, from then on the 3rd defendant is in possession of the property. The 6th defendant was inducted as partner in the business firm after he attained majority. It is further stated that the marriage of the plaintiff was performed in a grand manner and gave 35soverigns of jewels and other household utensils sufficiently for the purpose of running the family conveniently. The husband of the plaintiff was a central Government employee working in Postal department. Immediately after the marriage, the plaintiff is living in her matrimonial home happily at Royapettah. The properties in Door Nos.2 and 4, V.V.Koil Lane, Periamet, Madras-3 absolutely belonged to A.D.Parasurama Chettiar, the properties are nothing to do with the business, during his lifetime, the father of the defendants and plaintiff settled the properties in favour of his four sons viz., defendants 3 to 6, giving life interest to his sons and absolute rights of alienation with all powers to his grand sons viz., sons of the defendants 3 to 6. Thus the sons of the defendants 3 to 6 are in enjoyment of the properties, the plaintiff has no right or whatsoever in these properties. The plaintiff is no way connected with the business and the suit properties and filed the suit only to grab the properties. The defendant herein is not aware of the public notice dated 18.10.1991 published in Malai Malar. The plaintiff is not entitled to claim 1/7th share as alleged in the suit schedule properties and not to claim any mesne profit. Hence, the 3rd defendant prays for dismissal of the suit as not maintainable.
11. The 13th defendant filed his written statement stating that he is added as a party on the ground that he purchased an extent of 1225sq.ft in TS.No.169 Block No.D5 morefully described in items 8 and 9 of the Plaint as bonafide purchaser from the defendants 4 to 12, without aware of the pendency of the suit proceedings. He purchased the property for valuable sale consideration under a registered sale deed dated 28.01.2002 and sold the property in favour of one S.Krishnamoorthy under registered sale deed dated 11.12.2002. Further, the defendant prayed that in the event of partition being effected among the properties between the plaintiff and the other defendants herein, the suit schedule item Nos.8 and 9 may be allotted to the share of the defendants 4 to 12 so that the property purchased by him may be allotted in equity to the purchaser from the defendants 4 to 12 viz., S.Krishnamoorthy.
12. The plaintiff filed reply statement for the written statement filed by the defendants 2, 5 & 6 and 3rd defendant, wherein she has stated that the plaintiff's father A.D.Parasurama Chettiar was running the old bottle business as sole proprietor and there is no iota of evidence on the side of the defendants 3 to 5 to claim that they were carrying on partnership business along with their father. The property bearing Door No.103, Phopams Broadway was purchased vide sale deed No.404/1975 dated 21.05.1975 by the father of the plaintiff out of his income from the sole proprietor business and there is no mention as to who are the sons of A.D.Parasurama Chettiar & Sons, nor there is no mention about the names of the defendants 3 to 5 herein as partners. It is true that all the sons and daughters have helped and worked hard in the business run by A.D.Parasurama Chettiar. The word partnership is not at all found in the sale deed nor the names of the sons of the A.D.Parasurama Chettiar was found in the sale deed.
13. In the settlement deed executed by the father of the plaintiff in favour of the defendants 3 to 6 vide Doc.No.1044 of 1980 dated 14.04.1980, the properties covered in the settlement deed are (i)Door No.2 & 4, V.V.Koil Lane, Periamet and (ii)Door No.103, Phopams Broadway. In the settlement deed it is mentioned that the settlement deed was purchased out of the self earning of the deceased A.D.Parasurama Chettiar. Further, in the settlement deed it is stated that he was settling the house properties for the purpose of maintenance of settlees viz., defendants 3 to 6. The properties purchased by the father of the plaintiff and the plaintiff has got a share in the said house property, the defendants herein are called upon to prove the same legally with documentary evidences before this Court. In the said circumstances, the defendants 3 to 5 were not doing business with their father in the bottle business. The house property in Door No.103, Phopams, Broadway is the absolute property of the deceased A.D.Parasurama Chettiar and as such the plaintiff is entitled to a share in the property.
14. The plaintiff further states that after the death of Parasurama Chettiar his sons viz., defendants 3 to 6 have partitioned the other properties in and by a deed of partition dated 28.12.1990, the house property in Door No.103, Broadway was allotted absolutely to the 3rd defendant. In the settlement deed dated 14.04.1980 executed by a Parasurama Chettiar, it is stated that he purchased the property out of his self earned funds and he settled 1/4th share in favour of 6th defendant creating life interest and after settlement remaining 3/4share stands in the name of Parasurama Chettiar and the property cannot be partitioned among defendants 3 to 6. Hence, the plaintiff is entitled to 1/7th share from and out of the 3/4th undivided share of house property bearing Door No.103, Phopams Broadway. With reference to Document No.404 of 1975 dated 21.05.1975 the property was purchased in the name of A.D.Parasurama Chettiar and sons, whereas in the partition deed dated 28.12.1990 executed between defendants 3 to 6 it is shown that the house property was purchased in the name of A.D.Parasurama Chettiar and Sons (Firm). In the partition deed between defendants 3 to 6, the recital is added after the name of A.D.Parasurama Chettiar only for the reason to show that the purchase of the house property bearing No.103, Broadway was earlier purchased by the so called partnership firm, in fact, there was no such partnership firm at all in the name of A.D.Parasurama Chettiar. The name in the recital as A.D.Parasurama Chettiar and Sons (Firm) itself is a proof of fraud perpetuated by the defendants 3 to 6 against the plaintiff is in order to deprive her legitimate 1/7th share in the suit property. The properties in the partition deed (i)No.103, Phopams, Broadway (ii)No.54, Sami Pillai Street, Choolai and (iii)No.5, V.V.Koil Lane, the defendants 3 to 6 are only name lenders. For purchasing the properties in Door No.54, Samil Pillai Street and Door No.5, V.V.Koil Lane, the money was paid by A.D.Parasurama Chettiar out of his income from the bottle business, if the above said properties are purchased out of the independent funds of defendants 3 to 6, they could have partitioned the property among themselves without mentioning the factum of death of their father. The fact that defendants, 2, 5 and 6 have mentioned that the properties are partitioned on the death of their father would itself go to show that all the properties absolutely belong to their father. In the alleged partition deed dated 28.12.1990, it is stated that the defendants 3, 4 and 6 have paid a sum of Rs.1,00,000/- each to the 5th defendant towards his share. If the 5th defendant had contributed money for purchasing the house properties, obviously he could have demanded partition of property by metes and bounds. The fact receiving cash towards his share would go to show that the 5th defendant had not contributed any amount towards purchase of the above properties. Hence, the plaintiff prays that she is entitled to 1/7th share in these two properties.
15. Further, the property in Door No.5, Venkatesa Gramani Street, Chindadripet claimed to have been purchased by 3rd defendant out of his own funds vide Doc.No.1360 of 1974 dated 27.10.1974. The 3rd defendant with the connivance of the defendants 4 to 6 sold the said property by executing a sale deed in favour of Sarala Devi who is non-else than the wife of 6th defendant with ulterior motives vide sale deed dated 28.12.1990 in Doc.No.2014/1990. It is pertinent to note that the partition deed between the defendants 3 to 6 is also dated 28.12.1990. The property in Door No.31, New Colony, 1st Street, VOC Nagar, Madras is not independent property of 5th defendant, just like other defendants he was also dependent on his father till his death and he is only a name lender for this property.
16. With regard to execution of Will dated 24.01.1983 in favour of defendants 4 to 6 by deceased A.D.Parasurama Chettiar in respect of properties bearing Door Nos.24A and 25, Veerasamy Street, Arni. The deceased A.D.Parasurama Chettiar had not executed any Will in favour of his sons and daughters. Subsequently, the plaintiff came to know that the defendants 4 to 6 herein has filed OP.No.62 of 1998 before this Court for grant of Letters of Administration with Will in respect of two house properties at Arni. The said OP was dismissed by this Court by an order dated 04.09.1996 for non prosecution. The plaintiff filed A.No.3834 of 2002 for perusing the records in the said OP. On verification it is found that the OP.No.62 of 1988 was presented before this Court on 02.02.1987 and found one affidavit is said to have been filed by me giving consent to defendants 4 to 6 for grant of Letters of Administration. The said affidavit was undated and alleged to have been sworn during August 1987 and practising Advocate of this Court has also attested the forged affidavit of the plaintiff. The plaintiff also filed A.No.3930 of 2002 for grant of certified copy of the Document in OP.No.62 of 1988 for taking further action against the defendants 4 to 6 under Section 195 Cr.PC, before proceeding further this Court dismissed the said OP.No.62 of 1988 for non prosecution. In the meanwhile, the defendants 4 to 6 and their sons including some minors jointly sold the properties at Arni to one D.Rajasekar vide Doc.No.2800 of 2002 dated 21.08.2002 on the file of SRO, Arni. The defendants 4 to 6 fraudulently obtained sanction from the Principal District Judge, Tiruvannamalai in H.M.G.O.P.No.2 of 2000 is invalid for the reason that the Will dated 24.01.1983 has no legal effect unless it has been probated before this Court or the Letters of Administration is granted by this Court. The non mentioning of dismissal of OP.No.62 of 1988 in Doc.No.2800 of 2002 would go to show that the defendants 4 to 6 have suppressed the materials fact and further they have committed fraud in selling the properties to third parties. The plaintiff has also impleaded the purchaser by name D.Rajasekar in the suit proceeding in order to avoid multiplicity of further proceedings. Hence, the plaintiff prays that she is entitled to 1/7th share in the suit schedule properties.
17. Based on the pleadings of the parties to the suit as well as the draft issues submitted by them, the following issues have been framed by this Court on 19.03.1994 :-
1.Whether the plaintiff is a member of Hindu Joint Family?
2.Whether the deceased Parasuram Chettiar and his sons have constituted partnership firm in the name of M/s.A.D.Parasurama Chettiar and Sons?
3.Whether the Schedule property was purchased by the partners in the name of M/s.A.D.Parasurama Chettiar & Sons?
4.Whether there was any partition in respect of the schedule properties?
5.Whether third defendant is the absolute owner of the property bearing No.103, Broadway, Madras-1?
6.Whether fourth defendant is the owner of the property bearing No.2 and 4 V.V.Koil Street, Periamet, Madras-3?
7.Whether the plaintiff is connected to old bottle partnership business?
8.Whether the plaintiff is entitled to a share in the schedule properties?
9.Whether the plaintiff is entitled to mesne profits?
10.To what relief the plaintiff is entitled to?
18. The 13th defendant was impleaded in the suit vide A.No.6365 of 2009, based on the defence raised by the 13th defendant in the written statement, the following additional issues are framed by this Court on 26.11.2009 :-
1.Whether the 13th defendant is the bonafide purchaser of the house property bearing D.No.24A and 25 in Veerasamy Street, Arani?
2.Whether the 13th defendant is entitled for allotment of the house property bearing Door No.24A and 25, Veerasamy Street, Arani, in equity to the share of the defendants 4 to 12 in the event of partition between the plaintiff and the defendants 1 to 12?
19. Before the Additional Master IV, the plaintiff examined herself as PW1 and marked Exs.P1 to P13 on her side and the 13th defendant was examined as DW1 and 3rd defendant was examined as DW2 and marked Exs.D1 to D10 on the side of the defendants.
20. Heard the rival submissions made on both sides and perused the records.
21(i)The learned counsel for the plaintiff would submit that the suit is filed for partition and separate possession of her 1/7th share in respect of the suit schedule properties except item 4 and 5 of the suit schedule directing the defendants to account for the income from the suit schedule properties from 07.08.1985, and for her share of mesne profits against the defendants from 07.08.1985. The defendants 1 and 2 are elder sisters to the plaintiff, the defendants 3 to 5 are elder brothers and 6th defendant is younger brother to the plaintiff. The defendants 7 & 8 are sons of the 4th defendant. The defendants 9 to 11 are sons of the 5th defendant herein. The 12th defendant is son of 6th defendant and the 13th defendant is purchaser of suit schedule properties in item 8 and 9. The defendants 14 to 18 are legal heirs of deceased 2nd defendant.
(ii)The plaintiff and the defendants 1 to 6 were born to A.D.Parasurama Chettiar and Ranjithammal. The Ranjithammal died on 30.11.1980 and A.D.Parasurama Chettiar died on 07.08.1985, leaving behind the plaintiff and the defendants 1 to 6 as surviving legal heirs.
(iii)The plaintiff's father doing business as sole proprietor in empty bottles under the name and style A.D.Parasurama Chettiar and sons and all the suit schedule properties are shown in the plaint have been purchased by the deceased A.D.Parasurama Chettiar out of self earned funds from the business, the title of some of the suit schedule properties stands in the name of the defendants 3 to 6 herein. There is no iota of proof on the side of the defendants 3 to 5 herein to claim that they were carrying on partnership business along with their father under the name and style A.D.Parasurama Chettiar and sons. After the death of her father, the plaintiff is entitled to claim 1/7th share, except item Nos.4 and 5 in the suit schedule properties, as per provisions of the Hindu Successions Act, 1956. The plaintiff had also issued notice before filing the suit vide Ex.P13 dated 14.10.1991.
22. The learned counsel for the defendants would submit that the properties are acquired by deceased A.D.Parasurama Chettiar out of the income derived from partnership firm consisting of A.D.Parasurama Chettiar and defendants 3 to 6. During the lifetime of A.D.Parasurama Chettiar, he settled the property in No.103, Phopams Broadway in favour of the defendants 3 to 6 for maintenance and after their lifetime it goes to the sons and daughters of defendants 3 to 6. The defendants 3 to 6 have partitioned the properties vide partition deed dated 28.12.1990, in the said partition deed the property situated in No.103, Broadway, Madras-108 was allotted to 3rd defendant, from then on the 3rd defendant is in possession of the property. Subsequently, the 3rd defendant executed a sale deed dated 28.12.1990 in favour of Sarala Devi wife of P.Dhanasekar/6th defendant. The said Sarala Devi was not impleaded in the suit and the suit is hit by non-joinder of necessary parties. The properties belong to partnership firm and the partners have divided the properties among themselves and this plaintiff has nothing to do with the partnership firm, the properties are not individually acquired by the deceased A.D.Parasurama Chettiar and hence, the plaintiff is not entitled to partition and the suit is devoid of merits and liable to be dismissed.
23. Considered the pleadings of both sides, the issues, additional issues framed by this Court and the oral and documentary evidences adduced and produced by the respective parties during trial and considered the rival submissions made on either side.
Issue Nos.2 and 324.(i). The learned counsel for the plaintiff would submit that A.D.Parasurama Chettiar & sons was a sole proprietorship concern and A.D.Parasurama Chettiar was sole proprietor. He only purchased all the suit schedule properties out of his earning from business. The plaintiff would furnish details as to how item No.1 of the suit schedule property in Door No.103, Phompas Broadway (Ex.P1 and Ex.D1) was purchased vide Doc.No.404 of 1975 dated 21.05.1975, out of the income from the bottle business. The name of the business stood in the name of A.D.Parasurama Chettiar and sons and it was sole proprietary concern and the same is not partnership firm and the defendants 3 to 5 were not acting as partners in the said business as claimed by the defendants 2, 3, 5 and 6. In Ex.P1, there is no mention as to who are the partners and there is no mention about the names of the defendants 3 to 6 as partners in the said firm. DW2 has not filed any document to prove that D3 to D5 are running the partnership business in the name and style of A.D.Parasurama Chettiar & sons. DW2 further depose that property covered under Ex.D1 stands in the name of the Parasurama Chettiar and not in the name of defendants D3 to D5 and there is no mention about the word A.D.Parasurama Chettiar firm.
(ii) Further, DW2 admitted that Ex.D2 to Ex.D4 gift deeds had neither been attested nor registered documents. Ex.D2 written by DW2 in favour of 6th defendant. Ex.D3 written by 5th defendant in favour of 6th defendant and Ex.D4 had been written by 4th defendant in favour of 6th defendant. In Ex.D2 to Ex.D4 gift deeds it is only mentioned that donors gave Rs.2,000/- each to the donee/Dhanasekar/6th defendant out of love and affection. DW2 in his evidence admitted that in Ex.D2 to D4 it is not mentioned that a sum of Rs.2,000/- was gifted to 6th defendant to join the partnership firm, there is no such averment in the written statement. DW2 had not filed any document to show that 6th defendant only was inducted as a partner in Parasurama Chettiar and sons by investing Rs.6,000/- as capital. Further, defendants 3 to 5 have not proved before this Court that they have been functioning as partners in M/s.Parasurama Chettiar & Sons and the same was partnership firm.
(iii) By filing Ex.D6/Release Deed, DW2 wanted to make out a case that DW2 had been retired from the partnership business of A.D.Parasurama Chettiar and sons. It is submitted that DW2 had fabricated Ex.D6, after the death of A.D.Parasurama Chettiar by forging his signature to make out a case that there was a partnership firm between A.D.Parasurama Chettiar and defendants 3 to 6. DW2 retired from the partnership business in the year 1984, for which DW2 had not filed any single piece of document to prove that he was a partner in M/s.A.D.Parasurama Chettiar and Sons, the question of DW2 retiring from the partnership business does not arise at all. It is an after thought of DW2 to file Ex.D9 to show that the defendants 3 to 6 have been running the partnership business. It is also admitted in the evidence of DW2 that he has not filed any documents to show that the firm had supplied empty bottles to M/s.Sica Brewaeries Limited in the year 1980-81 as mentioned in Ex.D9. With regard to Ex.D8, it is at the most a notice sent by Commercial Tax Department to defendants 3 to 6 to clear that the tax arrears left behind by the deceased A.D.Parasurama Chettiar in the year 1985, in Ex.D8 it is mentioned that defendants 3 to 6 are partners and defendants 3 to 6 cannot claim that they are partners of M/s.A.D.Parasurama Chettiar and Sons. As stated supra, DW2 has not proved that defendants 3 to 6 have been functioning as Partners in partnership business.
(iv) Regarding these issues, when the plaintiff has specifically stated that her father was doing old bottle business as a proprietor in the name and style of A.D.Parasurama Chettiar and Sons. The same is only proprietorship concern and not a partnership firm. The defendants have not produced any partnership deed or registration of partnership firm certificate. In the absence of the same Ex.D8 is not sufficient to prove that A.D.Parasurama Chettiar and sons is partnership firm. Except oral evidence, there is no documentary evidence to prove that A.D.Parasurama Chettiar and sons is a partnership firm in which A.D.Parasurama Chettiar and defendants 2 to 6 were partners in the said firm. It is duty of the defendants to prove that there was a partnership firm in which they are all partners and the suit schedule properties were purchased either in the name of partnership firm or out of the funds derived from partnership firm and the defendants 3 to 6 failed to prove the same. Under the above said circumstances, this Court is of the view that A.D.Parasurama Chettiar and sons is only proprietorship concern and not partnership firm and the properties are not belong to partnership firm. Hence, the issue Nos.2 and 3 are answered accordingly.
Issue Nos.1, 7 and 825.(i)The learned counsel for the plaintiff would submit that there are three house properties mentioned in the partition deed dated 28.12.1990/Ex.P3. In the said partition deed the 5th defendant is said to have received a sum of Rs.1,00,000/- each from the defendants 3, 4 and 6 towards his share. Assuming that the 5th defendant contributed money for purchasing the properties, he would also demanded partition of his share. The fact, 5th defendant received equivalent cash towards his share would go to show that he has not contributed any money for purchasing the properties, then the defendants 3 to 6 have contributed the money for purchasing the house properties. When none of the defendants 3 to 6 have contributed the money, then the fact remains that the money came from the self acquired funds of the deceased A.D.Parasurama Chettiar. The property in Door No.5, Venkatesa Gramani Street, Chindatripet was claimed to have been purchased by 3rd defendant vide Doc.No.1360 dated 27.10.1974/Ex.P6 out of his own self earned funds, the money for purchasing the property was given only by the deceased A.D.Parasurama Chettiar and after the death of A.D.Parasurama Chettiar, the sons and daughters are equally entitled to their respective shares. In order to defeat the rights of the plaintiff the 3rd defendant with connivance of the defendants 4 to 6 herein had sold the same by executing a sale deed in favour of Sarala Devi wife of 6th defendants with ulterior motive. The Sale deed is dated 28.12.1990 in Doc.No.2014/1990-Ex.P7 and the partition deed is also dated 28.12.1990 between the defendants 3 to 6 herein. Both the partition and sale deed had been executed on the same date would disclose that the two documents are tainted with fraud and illegality. In order to defeat the rights of the plaintiff the defendants 3 to 6 conspired together in partitioning the house properties that are absolutely owned and purchased by the deceased A.D.Parasurama Chettiar out of his self earned funds. Hence, the partition deed is unsustainable in the eye of law.
(ii)At the time of executing the settlement deed dated 14.04.1980, the deceased A.D.Parasurama Chettiar had clearly stated that he was settling the house property in favour of D3 to D6 herein for the purpose of their maintenance. If the deceased was providing maintenance for his four sons then it would only mean that D3 to D6 were depend on their father till such time they could not have earned any money either individually or through any other sources. The deceased A.D.Parasurama Chettiar was running bottle business under the name and style A.D.Parasurama Chettiar and sons only as sole proprietor and there is no evidence or proof that the defendants 3 to 6 were partners with their father. The defendants 3 to 6 have failed to prove with legal and documentary evidence that they were doing partnership business with their father or that they had contributed individually or jointly to purchase the house properties i.e, partition deed dated 28.12.1990 or the sale deed dated 28.12.1990. In view of the above fact, the deceased A.D.Parasurama Chettiar was the absolute owner of the suit property having purchased the same out of the his self earned funds and died intestate, hence, the plaintiff is entitled to 1/7th share in all the above said four house properties in the suit schedule item Nos.1, 2, 3 and 6.
(iii)The property bearing No.31, New Colony, Ist street, VOC Nagar, Madras is not the independent property of the 5th defendant. The money for purchasing the property was contributed by the deceased A.D.Parasurama Chettiar, till his death in the year 1985, the 5th defendant was dependent and the 5th defendant is only a name lender for this property, the said Parasurama Chettiar died intestate on 07.08.1985 and hence, the plaintiff is entitled to 1/7th share in all the suit schedule properties except suit schedule item Nos.4 and 5 as well as mesne profits from the defendants.
(iv)With regard to two house properties bearing Door No.24-A and 25, Veerasamy Street/Suit item Nos.8 and 9, the plaintiff would state that to her knowledge the deceased A.D.Parasurama Chettiar had not written any Will in respect of these properties in favour of his sons and daughters. In order to defeat the rights of the plaintiff, the defendants 4 to 6 had fabricated a Will alleged to have been executed by the deceased Parasurama Chettiar. In the meanwhile, the plaintiff came to know that the defendants 4 to 6 filed OP.No.62 of 1988/Ex.P10 praying for grant of Letters of Administration with Will in respect of two house properties at Arni. The said OP.No.62 of 1988 was dismissed by this Court on 04.09.1996/Ex.P11 for non-prosecution. It goes without saying that the Will alleged to have executed by the deceased Parasurama Chettiar is no more in existence and the father of the plaintiff died intestate and the plaintiff is entitled to 1/7th share in respect of two house properties at Arni/suit schedule item No.8 and 9.
(v)The alleged Will is no more in existence in the eye of law, the defendants 4 to 6 acted on the basis of unprobated Will and sold two Arni houses to one D.Rajasekar/13th defendant vide sale deed dated 21.08.2002 in Doc.No.2800 of 2002 on the file of the SRO, Arni. Defendants 4 to 6 obtained sanction to sell the minor property from the Principal District Judge, Tiruvannamalai in HMOP.No.2 of 2000, the same is invalid for the reason that the Will dated 24.01.1983 has no legal effect unless it has been probated or Letters of Administration is granted by this Court. The said OP.No.62 of 1988 was dismissed for default was not at all stated in the sale deed in the Doc.No.2800 of 2002 which would only go to show that the defendants 4 to 6 have suppressed the material fact and committed fraud and contempt of Court. In the cross examination DW1/D13 admitted that probate proceedings are necessary for purchase in respect of schedule item Nos. 8 and 9. The sale in favour of D13 is null and void and hit by lispendens, the same is also admitted by him in the written statement as well as in the evidence and he is bound by the decree passed in the suit.
(vi)The documents pertaining to suit item Nos.8 and 9 purchased by A.D.Parasurama Chettiar has not been filed before this Court. Whereas the defendants 4 to 12 sold the Arni properties to 13th defendant vide Ex.P9 and the schedule of the item Nos.8 and 9 to the plaint are one and the same. The suit schedule item Nos.8 and 9 are equivalent to schedule in Ex.P9.
26. As already held in the previous issues that there is no partnership firm and defendants 3 to 6 were not partners. The properties covered under partition deed was purchased by their father A.D.Parasurama Chettiar out of old bottle business. The sale deed does not contain anything about the partnership firm. Therefore, after the death of A.D.Parasurama Chettiar the plaintiffs and defendants 1 to 6 are entitled to inherit the property. The partition deed in Ex.P7/Ex.D7 is self-serving document and in which the plaintiff is not party to the partition deed, hence, it will not bind the plaintiff. Even as per the settlement deed/Ex.P6/Ex.D5 dated 14.04.1980, A.D.Parasurama Chettiar has settled 1/4th of the properties in favour of defendants 3 to 6 for their life time maintenance, after that the same would go to children of the said defendants. That it would go to show that the properties mentioned in the settlement deed is the self acquired property of A.D.Parasurama Chettiar and the defendants 3 to 6 do not have any independent source of income to purchase that properties. Further, DW2 has not stated that they have independent source of income to purchase the property. The defendants 3 to 6 had never stated that they lived separately and they have done any business separately. They have stated only that they are partners in the partnership firm viz., A.D.Parasurama Chettiar and sons. As already held there is no partnership firm and they are not partners. Under the said circumstances, this Court finds that the properties are purchased by A.D.Parasurama Chettiar out of the money earned from his business. As plaintiff is one of the legal heir of deceased A.D.Parasurama Chettiar, she is entitled to 1/7 share as prayed for. Insofar as alleged Will is concerned, when the plaintiff has specifically denied the Will, it is the duty of the defendants to prove the Will as contemplated either under Evidence Act or under Indian Succession Act. As the Will is not proved in the manner known to law, the right of the plaintiff over the said properties will not affect. Hence, the issue Nos.1, 7 and 8 are answered accordingly.
Issue No.5 and 627.(i)According to the defendant the property in Door No.103, Phopams Broadway was purchased out of the income from the business in A.D.Parasurama Chettiar and sons partnership firm consisting of A.D.Parasurama Chettiar, Thiagarajan, Parthasarathy and Gokul and they have maintained the property. But there is no reference in the Doc.No.404 of 1975 that the house was purchased by A.D.Parasurama Chettiar and sons partnership firm out of funds from the partnership business and no mention about either partnership firm or the names of the sons of A.D.Parasurama Chettiar in the sale deed.
(ii)The plaintiff herein accepts that the defendants 3 to 6 are the settlees of the property in No.2 and 4, V.V.Koil lane/suit items 4 and 5 by virtue of settlement deed dated 14.04.1980 in Doc.No.1044 of 1980/Ex.P2. In the settlement deed it has been mentioned that the house property in No.103, Phopams Broadway was purchased out of the self earning funds of the deceased Parasurama Chettiar. In the settlement deed the deceased A.D.Parasurama Chettiar has stated that he was settling the properties for the purpose of maintenance of setllees viz., defendants 3 to 6 herein and there is no whisper in the deed that the property was purchased out of the income from the partnership between the defendants 3 to 5 herein. The 3rd defendant/DW2 also failed to prove the same by legal and documentary evidence before this Court that the defendants 3 to 6 as partners were doing bottle business with their father/A.D.Parasurama Chettiar. DW2 also admitted that the deceased A.D.Parasurama Chettiar executed settlement deed/Ex.P2 in favour of his four sons for their maintenance, the same would go to show that the defendants 3 to 6 were only dependents of their father and he was wholly maintaining the defendants 3 to 6. It is also admitted that DW2 has no individual income from any sources. From the evidence of DW2, it is clear that the properties were purchased only by A.D.Parasurama Chettiar out of the earnings from A.D.Parasurama Chettiar and Sons and not individual money of any of the defendants.
(iii)In the settlement deed dated 14.04.1980/Ex.P2 the deceased Parasurama Chettiar has stated that he brought the property in Door No.103, Phopams Broadway out of his self earned funds and during his lifetime he settled < share in favour of D6/Dhanasekar by creating life interest for him and absolute interest to his sons. After settling < share in favour of 6th defendant, the balance > share still remains in the name of Parasurama Chettiar. It is admitted by the defendants 3 to 5 that D6 was not a partner at the time when 109, Phopams Broadway property was purchased by A.D.Parasurama Chettiar. 3rd defendant/DW2 entered into witness box, but failed to prove that D3 to D6 were doing partnership business with their father in old bottle business in the name and style A.D.Parasurama Chettiar and sons. All the plaintiff and defendants might have contributed some extent to the business of their father, but the said business is not partnership business. The properties are purchased from the said source of income at the best it can be treated as joint family property, but not individual properties of any of the defendants. Therefore, the partition deed/Ex.P7 will not bind on the plaintiff. Thus, the plaintiff is entitled to 1/7share from and out of the 3/4undivided share of the house property in Door.No.103, Phopams Broadway.
(iv) There is no detail about the source of funds for purchasing house property by D3/DW2. He also admitted that he had not filed any document to show that the title of the properties except the properties situated at No.2 & 4, V.V.Koil lane stands in the name or in the names of his brothers. In the absence of the above details, would go to show that the purchase money for the house property came from self earned funds of deceased Parasurama Chettiar. The properties in the partition deed are (i)No.103, Phopams Broadway (ii)No.54, Sami Pillai Street, Choolai (iii)No.5, V.V.Koil Lane. DW2/D3 denied that the defendants 3 to 6 are only name lenders to purchase the house properties bearing No.54, Sami Pillai Street, Choolai and No.5, V.V.Koil Lane. It is undisputed that purchase money was paid for the above two properties only by A.D.Parasurama Chettiar out of his income from the bottle business. The contention of DW2/3rd defendant that the purchase money for the above two properties were provided by defendants 3 to 6. The same is not acceptable in the absence of any proof to show that they had got independent source of income. As already stated that they do not have any independent source of income. The title deeds of the above two properties are not filed before this Court, assuming the properties are purchased out of the independent funds of defendants 3 to 6, then the defendants 3 to 6 could have partitioned the properties among themselves without mentioning the factum of death of their father. The defendants 2, 5 and 6 have stated in their written statement that the properties are partitioned on the death of their father would itself go to show that all the suit properties absolutely belong to their father and not individual properties of any of the defendants. Hence, the issue No.5 and 6 are answered accordingly.
Issue No.4
28. The plaintiff herself admitted that there was a partition in the year 1990, defendants 3 to 6 entered into partition, during chief examination also she admitted that Ex.P7 is the partition deed dated 28.12.1990 among defendants 3 to 6. However, it is admitted fact that plaintiff is not party to the said partition deed, therefore, the partition deed would not bind on the plaintiff. It is already decided that the suit property is self acquired property of Parasurama Chettiar/father of the plaintiff and there is no partnership firm between A.D.Parasurama Chettiar and defendants 3 to 6, the plaintiff is not party to the partition deed and the same is not bind on the plaintiff. Hence, the issue No.4 is answered accordingly.
Issue No.9
29. As already stated in the earlier issues that the plaintiff is entitled to partition after the death of her father on 07.08.1985, she has not claimed any relief of mesne profit. There is no evidence to show what is the income from the properties. Since the defendants are in possession of the property after death of their father they are liable to submit the accounts. Admittedly, their father died on 07.08.1985 and the suit is filed in the year 1992, therefore, the same shall be worked out in the final decree proceedings. Hence, the issue no.9 is answered accordingly.
Additional Issues No.1 and 230. As admitted by PW1 in her evidence that during the pendency of this suit, the suit schedule item Nos.2, 6 and 7 are sold to 3rd parties and they have not been impleaded as defendants in the suit. The plaintiff submits that in legal parlance the effect of Section 52 of the Transfer of Property Act, is that a lispendes transferee is bound by the Decree whether on contest, exparte or a compromise. The plaintiff is under no obligation to implead a lispendens transferee. Section 52 of the Transfer of Property Act has been enacted with an view to safe guard the interest of the plaintiff so that his decree is not defeated at the instance of a third party in whose favour there has been a lispendens transfer. Subsequently, the 13th defendant has been impleaded in this suit and the plaintiff is not a party to the sale and the sale will not bind on the plaintiff. The 13th defendant has to workout his remedy only from his vendors. Hence, the additional issues Nos.1 and 2 are answered accordingly.
Issue No.10
31. The plaintiff is entitled to 1/7th share in all the suit schedule properties except suit items Nos.4 and 5 and 1/7th share from and out of 3/4th undivided share of the house property at No.109, Pophams Broadway morefully mentioned as Item No.1 in the suit schedule. The defendants are liable to account for the income derived from the suit schedule properties from the date of death of their father i.e, on 07.08.1985. Hence, the issue No.10 is also answered accordingly.
32. In the result, the preliminary decree is passed as prayed for. No costs.
02.03.2018.
Index : Yes/No Internet : Yes/No tsh List of Witness examined on the side of the plaintiff S.Gandhimathi - PW1 List of documents marked on the side of the plaintiff S. No. Exhibits Date Description of the documents 1 P-1 21.05.1975 Certified copy of Sale deed 2 P-2 .10.1974 Certified copy of Sale deed 3 P-3 17.11.1979 Certified copy of Sale deed 4 P-4 23.06.1980 Certified copy of Sale deed 5 P-5 21.08.2002 Sale deed executed by P.Parthasarathi and others in favour of D.Rajasekar 6 P-6 14.04.1980 Certified copy of Sale deed 7 P-7 28.12.1990 Certified copy of Sale deed 8 P-8 09.03.2000 Death certificate of A.D.Parasurama Chettiar 9 P-9 04.09.1996 Dismissal order of OP.No.62 of 1988, High Court Madras 10 P-10 29.01.1987 Copy of petition filed by P.Parthasarathy, A.P.Gokul and P.Dhanasekar for letters of administration 11 P-11 28.12.1990 Certified copy of sale deed 12 P-12
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Schedule of property 13 P-13 14.10.1991 True copy of notice issued by the plaintiff to the defendants with acknowledgment List of Witnesses examined on the side of the defendants D.Rajasekar (D13) - DW1.
P.Thyagarajan (D3) - DW2.
List of documents marked on the side of the defendants S. No. Exhibits Date Description of the documents 1 D-1 21.05.1975 Copy of Sale deed No.404 of 1975 2 D-2 07.04.1976 Original Gift deed executed by Thiagarajan 3 D-3 07.04.1976 Original Gift deed executed by P.Gokulan @ Gokul 4 D-4 07.04.1976 Original Gift deed executed by P.Parthasarathy 5 D-5 14.04.1980 Copy of settlement deed No.1044 of 1980 6 D-6 01.04.1984 Original Release deed 7 D-7 28.12.1990 Copy of partition deed No.374 of 1992 8 D-8 21.11.2000 Notice in RC.3752/96/A3 addressed to A.D.Parasurama Chettiar and sons 9 D-9
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Letter from A.D.Parasurama Chettiar and sons to M/s.Sica Brewaeries Limited 10 D-10 12.08.2002 Certified copy of OS.No.2630 of 2000.
.03.2018.
(P.V.J.) P.VELMURUGAN, J.
tsh Pre Delivery Judgment in CS.No.1117 of 1992 02.03.2018.