Madras High Court
Karuppana Gounder vs Minor Moorthy on 24 February, 2012
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2012
CORAM
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
S.A.No.1093 of 1999
Karuppana Gounder ... Appellant/Respondent/Defendant
Vs.
Minor Moorthy
alias Venkatachalam ... Respondent/Appellant/Plaintiff
(by next friend mother Rajammal)
The present Second Appeal is filed against the Judgment and Decree dated 26.10.1998 rendered in A.S.No.27 of 1998 on the file of the Learned Subordinate Judge, Gobichettipalayam, reversing the Judgment and Decree dated 13.06.1996 rendered in O.S.No.536 of 1994 dated 13.06.1996 on the file of the Learned District Munsif, Gobichettipalayam.
For Appellant : Mr.R.T.Doraisamy
For Respondent : Mr.S.Kaithamalai Kumaran
for M/s.A.K.Kumarasamy
J U D G M E N T
The Appellant/Defendant has focused this instant Second Appeal as against the Judgment and Decree dated 26.10.1998 in A.S.No.27 of 1998 passed by the Learned Subordinate Judge, Gobichettipalayam, in reversing the Judgment and Decree made dated 13.06.1996 in O.S.No.536 of 1994 passed by the Learned District Munsif, Gobichettipalayam.
2.The First Appellate Court viz., the Learned Subordinate Judge, Gobichettipalayam, while passing the Judgment in A.S.No.27 of 1998 (filed by the Respondent/Plaintiff) on 26.10.1998, has inter alia observed that the suit property ancestrally belongs to the minor Respondent/Plaintiff and his father Nagappan and as such, it cannot be either encumbered or sold, etc., and resultantly, has come to the conclusion that the trial Court is not correct in coming to the conclusion that the Respondent/Plaintiff is not entitled to the claim of the relief of partition and separate possession and set aside its finding of dismissal of the Suit and allowed the Appeal with costs by passing a preliminary decree in the Suit.
3.Before the trial Court, in the main Suit, 1 to 3 issues have been framed for determination. On behalf of the Respondent/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.7 have been marked. On the side of the Appellant/Defendant, witnesses D.W.1 to D.W.4 have been examined and Exs.B.1 to B.5 have been marked.
4.The trial Court, on an appreciation and analysis of the entire oral and documentary evidence on record, has come to a consequent conclusion that the Respondent/Plaintiff's father executing Ex.A.5 Sale Deed dated 11.12.1992 in favour of the Appellant/Defendant, is for lawful necessity and for family benefit and dismissed the Suit by holding that the Respondent/Plaintiff is not entitled to get the relief of partition.
5.At the time of Admission of the Second Appeal, this Court has formulated the following substantial questions of Law for determination:
1.Whether Lower Appellate Court is correct in shifting the burden of proof upon the Defendant to prove that Nagappan, the father of the Plaintiff borrowed money for illegal purpose and for the benefit of his own but not for legal necessity?
2.Whether the Lower Appellate Court is correct in holding that the father of the Plaintiff being the Manager of a joint Hindu family cannot alienate the joint family property for Legal Necessity or for the benefit of joint family?
The Contentions, Discussions and Findings on substantial questions of law 1 and 2:
6.The Learned Counsel for the Appellant/Defendant submits that the First Appellate Court has erred in shifting the onus of proof on the shoulders of the Appellant/Defendant to prove that the borrowal of money by Nagappan is for legal necessity and for the benefit of the estate.
7.The Learned Counsel for the Appellant/Defendant urges before this Court that the Respondent/Plaintiff has not averred in the plaint that his father has been leading an immoral life and borrowed money for illegal purpose.
8.Yet, another submission of the Learned Counsel for the Appellant/ Defendant is that the First Appellate Court has failed to taken into account an important fact that if the date mentioned in Ex.A.5 Sale Deed dated 11.12.1992 is not true, then the Respondent/ Plaintiff can very well prove the same and pray for setting aside the Sale Deed in toto.
9.Lastly, it is the contention of the Learned Counsel for the Appellant/ Defendant that the First Appellate Court has failed to see that the Manager of the Joint Hindu Family can alienate if the share on a minor co-parcener to satisfy an antecedent debt.
10.In response, it is the contention of the Learned Counsel for the Respondent/Plaintiff that the First Appellate Court in paragraph-12 of its Judgment in Appeal has clearly observed that the suit property ancestrally belonged to the Respondent/Plaintiff and his father and in respect of the half share of the Respondent/Plaintiff in the suit property, his father Nagappan cannot encumber or sell and in the instant case on hand, Ex.A.5 Sale Deed is not either for the minor's benefit or for the family benefit and accordingly, set aside the Judgment and Decree of the trial Court and allowed the First Appeal, which need not be disturbed by this Court in Second Appeal, at this distance point of time.
11.In the plaint, the Respondent/Plaintiff has averred that the suit property is his ancestral property and after his birth, his father Nagappan ill-treated his mother and demanded dowry and also his grandmother Pavayee has been very particular in demanding more dowry and his mother has been subjected to cruelty by his father and has been driven out by him during the year 1991. The Respondent/Plaintiff and his mother has been deserted by his father and they have come to Gobichettipalayam and lived there.
12.His mother Rasammal instituted a suit in O.S.No.50 of 1993 against her husband (the father of the minor Plaintiff) before the Learned District Munsif, Gobichettipalayam, for creating a charge in respect of the suit property and for maintenance. During the proceeding in O.S.No.5o of 1993, the Appellant/Defendant colluded with his father to defeat the maintenance right of his mother and created a fraudulent Sale Deed dated 11.12.1992, as if he genuinely purchased the property from his father. The Appellant/Defendant has been included as a 2nd Defendant in O.S.No.50 of 1993. Therefore, the Respondent/Plaintiff has laid the present suit against the Appellant/Defendant praying for the relief of declaration that the Sale Deed dated 15.12.1992 (correct date is 11.12.1992), which is numbered as 1001 in Gobichettipalayam Joint Sub Registrar's Office is not binding on him and also for division of the suit property into two shares, one such equal share for him for separate possession.
13.The Appellant/Defendant in the written statement has averred that the Respondent/Plaintiff, his mother and deceased Nagappan have all lived jointly as a family and since the family debts have increased, in order to cheat the creditors, a drama has been enacted, which failed and as a result, the present suit has been filed by the Respondent/ Plaintiff.
14.On 12.12.1992, the Appellant/Defendant has paid a sum of Rs.12,500/- to Pongiya Gounder, S/o.Marappa Gounder of Nagadevampalayam of Gobichettipalayam and on the same day, paid another sum of Rs.10,000/- to Parameswaran S/o.Appachi Gounder in the presence of witnesses and has taken a receipt to that effect. Apart from that he has paid a sum of Rs.6,015/-, on 09.03.1990, towards Sheep loan A/c.No.4/90 in Indian Overseas Bank and that the Respondent/ Plaintiff is also a party in the sale and the sale has been effected by the Respondent/Plaintiff's father as a Guardian of the minor and thereafter, to file a suit claiming the relief of partition, is not valid.
15.After the demise of Respondent/Plaintiff's father Nagappan, the right of maintenance claim gets abated and the present suit has been filed at the instance of Respondent/Plaintiff's mother.
16.Also, the present market value of the suit property is Rs.40,000/-. But, in the Sale Deed dated 11.12.1992, it is mentioned as Rs.29,000/-. Since the value of the property is more than Rs.15,000/-, the suit can only be projected in a Subordinate Court. Since the suit property has been sold as per Ex.A.5 Sale Deed, dated 11.12.1992, for legal necessity, the Respondent/ Plaintiff is estopped by conduct to question the same in the present suit.
17.In the case before hand, the oral evidence of P.Ws.1 and 2 and D.Ws.1 to 3 assume importance and as such, they are referred to by this Court for better appreciation of the merits of the matter.
18.It is the evidence of P.W.1 (Respondent/Plaintiff's mother) that after her marriage with the Respondent/Plaintiff's father, she lived with him for sixteen years and she has not taken any action for the harassment of dowry made by her husband and she is not liable to pay the sheep loan availed by her husband from the Bank and she cannot pay the loan taken by her husband and her husband used to beat her and take her jewels and minor son's age is now 16 and she claims a share in her husband's property along with her son.
19.P.W.2 has deposed in his evidence that P.W.1's husband, even during his life time, in the last two-three years, has started drinking and he has also joined with him and consumed liquor and her husband used to drink excessively and P.W.1's husband left her two-three years ago and P.W.1's husband has not informed him that with whom the loans are outstanding.
20.D.W.1 (the Appellant/Defendant) in his evidence has deposed that P.W.1's husband deceased Nagappan has availed a loan of Rs.12,500/- from Pongiannan Gounder of Nagadevanpalayam and he has also taken a loan of Rs.10,000/- from Goundhapadi Parameswaran and two years before his purchase, he has taken a loan and also availed a sheep loan of Rs.6,015/- from Gobi Bank and all these loans have been settled by him and he has not cheated deceased Nagappan and obtained the Sale Deed. Exs.B.1 and B.2 are the receipts to show that he has settled the aforesaid two loans of Pongiannan Gounder and Parameswaran and Ex.B.3 is the Sale Deed dated 11.12.1992, which has been executed by the deceased Nagappan and his minor son and even in Ex.B.3 Sale Deed, the loans are mentioned and the loans have been taken by the said Nagappan towards his family expenses and for educating his son.
21.The evidence of D.W.2 is to the effect that the deceased Nagappan has executed a pronote for Rs.10,000/- on 09.06.1961 viz., Ex.B.1 (receipt) and this loan has been settled by the Appellant/ Defendant and the deceased Nagappan has obtained a loan towards family expenses and for educating his child and Ex.B.1 receipt has been written by one Palani Pandaram, in which P.W.1's husband Nagappan, Ramasamy Nadar have signed as witnesses.
22.D.W.3 (Indian Overseas Bank Branch, Assistant Manager) in his evidence has deposed that the deceased Nagappan has taken a goat loan No.4/90 on 09.03.1990 for Rs.7,000/- and the subsidy for this loan has been given a sum of Rs.2,525.50paise and the balance to be paid has been Rs.6.015/- and the same has been paid by Karuppanna Gounder S/o.Muthu Gounder and Ex.B.4 is the original account copy and Ex.B.5 is the receipt given by Karuppanna Gounder.
23.D.W.4 in his evidence has deposed that he has known the Appellant/Defendant for the past ten to twelve years and he has also known the P.W.1's husband Nagappan for ten to twelve years, but he does not know about his family and also, he does not know about his individual habits.
24.The Learned Counsel for the Appellant/Defendant submits that as per Section 8 of the Hindu Minority and Guardianship Act, 1956, no previous permission of Court is required to be obtained before disposing of an immovable property wherein the minor's interest/share is involved in respect of a joint Hindu family property and to lend support to his contention, he cites the decision of the Hon'ble Supreme Court Sri Narayan Bal and others V. Sridhar Sutar and others in AIR 1996 Supreme Court 2371 wherein it is held hereunder:
Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.
25.He also seeks in aid of the Division Bench decision of this Court K.Logambal and 3 others V. V.V.Sakunthala and 6 others in 1997 (II) CTC 602 at pages 604 and 605 in paragraphs-7 and 8, it is held hereunder:
7. We have carefully considered the submissions of learned counsel appearing on either side. In our view, there are no merits whatsoever in the plea about the alleged coercion and undue influence in the execution of the agreement to sell. The fact that pursuant to the said agreement of sale, the competent court was also moved for the sanction in so far as it related to the interest of the minor itself would belie the claim of the so called undue influence and coercion. This grievance needs mention, only to be rejected. That apart, the learned trial Judge as well as the first Appellate Judge, has adverted to this aspect in detail and concurrently found that the objections in this regard has no merit and we do not find any infirmity whatsoever in the conclusions arrived at concurrently by both the learned trial judge as well as the first appellate judge. Consequently, the said objection is rejected.
8. As for the other ground of challenge that in the absence of an order of sanction from the competent court in terms of Section 8 of the Hindu Minority and Guardianship Act, the interest of the minor could not be compelled to be sold by virtue of the agreement to sell, which is sought to be specifically enforced, particularly in the teeth of the rejection of such claim for sanction by the Court, though attractive as the submission may look we are of the view that there is no merit in the said ground of challenge. Though it might have been agreed to between the parties that sanction has to be obtained in respect of the minor's interest or share, it should not be overlooked that such stipulation was for the benefit of the purchaser and if the plaintiff is prepared to purchase the same even without a sanction from the Court, it is no reason for the appellants to contend that in the absence of such sanction in respect of the minor's share, the same cannot be compelled to be sold by enforcing the agreement of sale. This question as to the necessity for obtaining the sanction of the District Court Under Section 8 of the Hindu Minority and Guardianship Act in a matter of the kind in the case of sale by mother of the minor child in respect of a property belonging to the joint family in the absence of the father, and in her capacity as the manager, and natural guardian came up directly for consideration before the Apex Court in the decision in Sri Narayan Bal and others and Sri Sridhar Sutar and others, 1996 (I) CTC 390:1996(1) Supreme 638. In the light of the above decision of the Apex Court, we consider it un-necessary to advert to the other series of decision in this regard. That was also a case, therein two brothers constituted a joint Hindu family. One of the brothers had a wife, an adult son and a few minor sons. The other brother also died but had a son and he too died leaving behind his wife and few minor sons. The sons of one of the brothers and the widow of the other brother for herself and as guardian of her minor sons and the wife of the son of the other brother, for herself and as guardian of her minor sons, executed a sale deed pertaining to certain joint family lands in favour of the defendant in those proceedings, who appears to have subsequently sold that property to the other defendant. After all these, the members of the original joint family filed a suit for a declaration that the sale of the joint family property by their guardians were vitiated. It is in that context, apart from the other questions of fraud, misrepresentation and undue influence alleged, the question about the want of sanction Under Section 8 of the Hindu Minority and Guardianship Act as a factor vitiating the sale also fell for the consideration of the Apex Court. The learned Judge in dealing the said issue, have held as follows:-
"4. Section 6 of the Act inter alia provides that the natural guardians of a Hindu Minor, in respect of the Minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property"), are in the case of boy or an unmarried girl - the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 thereof inter alia provides that the natural guardian of a Hindu minor has power, subject to the provisions of this Section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal convenient. Further more the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or any person claiming on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this Section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
26.Also, the Learned Counsel for the Appellant projects an argument that the Respondent/Plaintiff, in law, has to only file a suit for cancellation of Ex.A.5 Sale Deed as per Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 and in the present case, the Respondent/Plaintiff has prayed for the relief of declaration that Ex.A.5 Sale Deed dated 11.12.1992 is not binding, which is impermissible in law. To fortify his contention, he relies on the decision of this Court Anjalai and 6 others V. Arumuga Chettiar and another in 2000 (II) CTC 154 at 157 in paragraph-9, it is held as follows:
9.Therefore having regard to the declaration of the law by the Supreme Court holding that the transaction of the present nature was only voidable and not void, the Courts below have rightly held that the plaintiffs ought to have prayed for setting aside the release in favour of the defendants.
27.Coming to the plea of the Learned Counsel for the Appellant/Defendant that the Respondent/Plaintiff, in law, ought to have filed only a suit for cancellation of Ex.A.5 Sale Deed dated 11.12.1992 and ought not to have filed a suit for declaration that Ex.A.5 Sale Deed dated 11.12.1992 is not binding, this Court pertinently points out that as per Section 40 of the Court Fees and Suits Valuation Act, 1955, a person suing, ought to be a party to a document or decree and when the minor Respondent/Plaintiff is a party, then, in law, as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, he has to only file the suit for cancellation of Ex.A.5 Sale Deed dated 11.12.1992. Furthermore, the term 'Cancellation' implies that the individual suing ought to be a party to the document or decree, as opined by this Court. Where a Sale Deed has been executed on behalf of the minor by his father, acting as Guardian, a Suit by the minor son represented by his mother for possession of property sold based on the allegation that the sale is not binding on them, must be valued as a suit for cancellation. The fact that the father also joined in the execution of Sale Deed will not alter the position. As such, the present suit filed by the minor Respondent/Plaintiff seeking the relief of declaration that Ex.A.5 Sale Deed dated 11.12.1992 is not binding, is not a valid and legally sustainable one in the eye of law, in the considered opinion of this Court.
28.Moreover, the Learned Counsel for the Respondent/Plaintiff relies on the decision of the Hon'ble Supreme Court Smt.Rani and another V. Smt.Santa Bala Debnath and others in AIR 1971 Supreme Court 1028, wherein it is held as follows:
Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.
29.At this juncture, this Court refers to Section 8 of the Hindu Minority and Guardianship Act, 1956, which deals with 'Powers of natural guardian' and the same is extracted as follows:
8.Powers of natural guardian. - (1)The natural guardian of a Hindu minor has a power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal convenant.
(2)The natural guardian shall not, without the previous permission of the Court, -
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3)Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4)No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5)The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular -
(a)proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b)the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and
(c)an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this Section to the court to which appeals ordinarily lie from the decisions of that court.
(6)In this section, court means the city civil court or an district court or a court empowered under Section 4A of the Guardians and Wards Act, 1890 within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
30.Also, Section 12 of the Hindu Minority and Guardianship Act, 1956, reads hereunder:
12.Guardian not to be appointed for minor's undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
31.It is to be borne in mind that Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents a natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without prior sanction/permission of the Court. This restriction on the natural guardian in respect of the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor's undivided share in the joint family property as there cannot be a natural guardian in respect of such property which is specifically excluded as per Section 6 as per decision Sandhya Rajan Antapurkar V. State of Maharashtra in 2000 (2) HLR 277 (Bom).
32.In view of the ingredients of Sections 6 and 12 of the Act, this Court comes to an irresistible conclusion that Section 8 of the Hindu Minority and Guardianship Act, 1956 is not applicable in respect of a joint Hindu family property, which is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint family property. In this connection, the decision of the Hon'ble Supreme Court Sri Narayan Bal and others V. Sridhar Sutar and others in AIR 1996 Supreme Court 2371 relied upon by the Learned Counsel for the Appellant/Defendant squarely applies to the facts of the present case, as opined by this Court. Therefore, the contra view taken by the First Appellate Court in its Judgment in A.S.No.27 of 1998 and allowing the First Appeal is clearly unsustainable in the eye of law. Apart from that, the Appellant/Defendant has wiped out the two loans of the deceased Nagappan taken from individual borrowers and also, he has discharged No.4/90 Sheep loan availed by the deceased Nagappan from the Indian Overseas Bank, as clearly spoken to by the Manager of the Bank, who has been examined as D.W.3 before the trial Court.
33.It cannot be gainsaid that term 'Natural Guardian' as mentioned in Section 6 of the Act is a guardian for the separate property of the minor and not in respect of his interest in joint family property, in the considered opinion of this Court. Under the old Hindu law, in the case of a joint Hindu family governed by Mitakshara law, it is the karta or the manager of the joint family who has the power to deal with the property of the joint Hindu family, which comprises of minor children also. The manager may be in some cases a member of the joint family other than the father. Section 6 of the Act by excluding the interest in the joint family property recognises the old Hindu law principle in regard to joint family property of the minor as per decision Pattayi V. Subbayya in 1980 HLR 500 (Mad).
34.Under the Hindu law, the father has special powers of alienation of joint family property including the minor son's share either for legal necessity or for the benefit of the estate. He can even sell the joint family property including the minor son's share for the discharge of antecedent debts, which are not tainted by illegality or immorality as per decision Ramaraja (V.V.V.) V. Korada Malleswara Rao in 1999 (2) HLR 257 (AP).
35.Looking at from any angle and also taking note of the detailed discussions mentioned supra, this Court unhesitatingly holds that the First Appellate Court has committed an error in shifting the onus of proof upon the Appellant/Defendant to prove that Nagappan, the father of the Respondent/Plaintiff borrowed money for illegal purpose and not for legal necessity and further, incorrectly held that the father of the Plaintiff being a manager of a joint family cannot alienate the joint family property for legal necessity or for the benefit of the joint family and accordingly, the substantial questions of law 1 and 2 are so answered in favour of the Appellant/Defendant. Consequently, the Second Appeal succeeds.
36.In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court viz., the Learned Subordinate Judge, Gobichettipalayam dated 26.10.1998 made in A.S.No.27 of 1998 are set aside by this Court for the reasons assigned in this Second Appeal. The Original Suit No.536 of 1994 filed by the Respondent/Plaintiff on the file of the Learned District Munsif, Gobichettipalayam, is dismissed.
va To
1.The Subordinate Judge, Gobichettipalayam.
2.The District Munsif, Gobichettipalayam