Madras High Court
Chinna Palanisamy Gounder vs Latha on 16 December, 2016
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.11.2016
PRONOUNCED ON : 16.12.2016
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.59 of 2011
and
M.P.No.1 of 2011
Chinna Palanisamy Gounder ... Appellant
Vs.
1. Latha
2. Minor Dhineshkumar
3. Minor Hemashree
(Minors represented by mother Latha)
4. M.Jaganathan ... Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 06.08.2010 made in A.S.No.78 of 2007 on the file of the First Additional District Judge, Erode confirming the judgment and decree dated 03.09.2007 made in O.S.No.205 of 2005 on the file of the Principal Subordinate Judge, Erode.
For Appellant : Mr.R.T.Doraisamy
For Respondent : Mr. V.Lakshminarayanan
Nos.1 to 3 for Mr.M.Guruprasad
JUDGMENT
Challenge in this second appeal is made by the second defendant against the judgment and decree dated 06.08.2010 made in A.S.No.78 of 2007 on the file of the First Additional District Court, Erode, Confirming the judgment and decree dated 03.09.2007 made in O.S.No.205 of 2005 on the file of the Principal Subordinate Court, Erode in so far as it went against him.
2. The suit has been laid by the plaintiffs claiming partition of 2/3 shares of the plaintiffs 2 & 3 in the suit properties and also claiming maintenance for the first plaintiff from the first defendant and also, claiming the relief of charge over the share of the first defendant's properties for regular payment of the maintenance to the first plaintiff and for the relief of permanent injunction restraining the defendants from alienating or encumbering the suit properties, till the passing of the final decree.
3. The second appeal has been admitted and the following substantial questions of law are formulated for consideration in this second appeal.
(a)Whether the Courts below are correct in holding that the Sale Deed dated 04.03.1998 executed by the first defendant in favour of second defendant is not binding on the second plaintiff in respect of = share ignoring the fact that the sale was made by the father, the Kartha of joint family for the welfare of the family and for discharging the loan borrowed for the expenses of joint family.
(b)Are the Courts below committed error in not taking into account of the fact that after the sale by the first defendant in favour of the second defendant on 04.03.1988, the plaintiffs and the first defendant were living together till 2004 and the first defendant taking care of his children as per documents Ex.X1 & X3 and the evidence of PW1 and therefore the suit is collusive and not maintainable.
(c)Whether the Courts below are correct in allowing the suit partly and holding that the Sale Deed dated 04.03.1998 is not binding on the second plaintiff asfaras his 1/2th share is concerned, in the absence of any document or proof that the first defendant acted against the interest of family and children and used the sale proceeds for illegal purpose.
4. The first plaintiff is the wife and the plaintiffs 2 & 3 are the children of the first defendant. The second defendant is the paternal uncle of the first defendant and according to the plaintiffs and also the case of the defendants, the second defendant had purchased the suit properties from the first defendant under the sale deed dated 04.03.1998.
5. It is admitted that the first plaintiff is the wife of the first defendant and the plaintiffs 2 & 3 are the children of the first defendant and the first plaintiff. The marriage between the first plaintiff and the first defendant is a love marriage. For seeking maintenance from the first defendant, according to the plaintiffs, the first defendant fell into evil ways, like consuming liquor, gambling etc., from 1996 onwards and also, started ill treating the first plaintiff both mentally and physically and though the first plaintiff tolerated all the atrocities committed by the first defendant, according to the plaintiffs, the first defendant had driven out the plaintiffs from his residence and in the above circumstances, according to the plaintiffs, the first defendant is duty-bound to provide maintenance to the first plaintiff and the first plaintiff has claimed maintenance at the rate of Rs.500/- per month from the first defendant and also prayed charge over in respect of the shares of the first defendant in the suit properties for regular payment of the maintenance.
6. As regards the case of the plaintiffs for claiming 2/3 share in the suit properties to the plaintiffs 2 & 3, it is stated that the suit properties and other properties are the ancestral properties of the first defendant and the plaintiffs 2 & 3 and it is further stated that the first defendant and his father Muthusamy Gounder had partitioned their family properties under a registered partition deed dated 04.12.1997 and under the same, the suit properties had been allotted to the first defendant and thus, according to the plaintiffs, the plaintiffs 2 & 3 being the children of the first defendant, the suit properties being the joint family properties of the first defendant and the plaintiffs 2 & 3, the plaintiffs 2 & 3 are each entitled to obtain 1/3 share in the suit properties. Further, according to the plaintiffs, in order to defeat the right and the entitlement of the plaintiffs 2 & 3 to the suit properties, the first defendant had alienated the suit properties in favour of the second defendant for his illegal and immoral activities and therefore, according to the plaintiffs, they had been necessitated to lay the suit for partition, for claiming lawful share, to which, the plaintiffs 2 & 3 are entitled to obtain in respect of the suit properties.
7. The first defendant has remained ex parte and did not contest the suit proceedings. The second defendant inter alia, has taken a plea that the first defendant had alienated the suit properties in his favour as Kartha of his family for meeting out the family expenses, discharging the debts and for the business purpose and therefore, it is contended that the alienation made by the first defendant in favour of the second defendant is binding upon the plaintiffs and therefore, the plaintiffs are not entitled to claim any right, share or interest in respect of the suit properties and hence, the suit is liable to be dismissed.
8. The trial Court, on an appreciation of the evidence adduced by the respective parties, had found that the first plaintiff is entitled to seek maintenance form the first defendant as claimed and further, held that it is only the second plaintiff, who is entitled to claim share in the suit properties and that the second plaintiff is entitled to claim 1/2 share in the suit properties and so holding, it has declared that the sale effected in favour of the second defendant by the first defendant is valid only to the extent of 1/2 share, to which, the first defendant is entitled to and the sale deed executed in favour of the second defendant by the first defendant is not binding on the 1/2 share, to which the second plaintiff is entitled to and also granted the relief of permanent injunction and dismissed the suit as far as the claim of third plaintiff seeking partition relief in respect of the suit properties and also, the charge relief sought for by the first plaintiff.
9. Aggrieved by the judgment and decree of the trial Court, the second defendant preferred the regular first appeal and the plaintiffs had preferred the cross appeal as against the dismissal of their suit in respect of the entitlement of the third plaintiff to obtain a share in the suit properties and also, the refusal of the charge relief sought for by the plaintiffs. The first appellate court has dismissed the cross appeal filed by the plaintiffs and also dismissed the appeal filed by the second defendant. Further, the first appellate court has also set aside the judgment and decree of the trial court, in so far as it granted the relief of maintenance in favour of the first plaintiff. As against the refusal of the relief of maintenance of the first appellate court, the plaintiffs have not preferred any cross appeal or regular appeal. Only the second defendant has preferred the present appeal, challenging the above said judgment and decree of the first appellate court in so far as it went against him.
10. The first appellate court, on an appreciation of the evidence adduced by the respective parities, found that the plaintiffs have not established that the first defendant, as claimed by them, fell into evil ways and inflicted cruelty on the first plaintiff and also, found that there is no justifiable reason for the first plaintiff to live separately form her husband and so holding declined the relief of maintenance granted in favour of the first plaintiff by the trial Court. In this connection, the first appellate court has found that the first plaintiff as well as the witnesses examined on behalf of the plaintiffs have not substantiated the case of the plaintiffs that the first defendant fell into evil ways and thereby, ill treated the plaintiffs and in particular, the first defendant had consequently driven out the plaintiffs from his residence etc., In this connection, it had found that the evidence of PWs1 to 3 examined on behalf of the plaintiffs are not convincing and reliable.
11. Further, the first appellate court has also found that if really, the first defendant had fallen into evil ways and ill treating the first plaintiffs as claimed by the plaintiffs, the first plaintiff would have resorted to necessary legal action against the first defendant. However, on finding that the first plaintiff has not resorted to any such action available to her in law, it had disbelieved the case of the plaintiffs. Further, the first appellate court has also found that the plaintiffs have miserable failed to establish that the first defendant had driven out the first plaintiff from his residence and thereafter, the first plaintiff had been living separately without any connection with the first defendant.
12. On the other hand, the first appellate court has found that for admitting the plaintiffs 2 & 3 in the school, it is only the first defendant, who had admitted them in the school by signing the necessary application and the first appellate court had found support for coming to the above finding on the basis of Exs.X1 to 4. Therefore, it could be seen that the first appellate court has disbelieved the plaintiffs' case that the first defendant had driven out the plaintiffs from his residence in or about 2001. On the other hand, as could be seen from the evidence adduced in the case, the plaintiffs 2 & 3 had been admitted in the school only by the first defendant and therefore, the case of the plaintiffs that the first defendant had neglected the plaintiffs and not looking after them, had driven them out of his residence are all unacceptable and unconvincing. On the basis of the above said facts, the first appellate court had found that the first plaintiff is not entitled to seek the relief of maintenance from the first defendant as it had found that the plaintiffs have miserably failed to establish that the first defendant had neglected the plaintiffs and did not provide succor and maintenance to the plaintiffs. Even though the trial court had also found the above aspects against the plaintiffs, it still proceeded to hold that the first plaintiff is entitled to get maintenance as prayed for on the footing that the first defendant did not contest the case. As rightly found by the first appellate court, the trial court has erroneously granted the relief of maintenance in favour of the first plaintiff, merely on the footing that the first defendant had remained ex parte. Therefore, it could be seen that the first appellate court, on a correct appreciation of the evidence, found that the plaintiffs have failed to establish that the first defendant fell into evil ways and ill treated the plaintiffs and not looking after them and neglected them and thereafter, the plaintiffs are living separately etc., and declined the relief of maintenance granted in favour of the first plaintiff by the trial Court. No valid ground has been made out by the plaintiffs to interfere with the above said findings of the first appellate court in this second appeal.
13. The corollary to above findings of the first appellate court would only be that the plaintiffs and the first defendant are living together. Therefore, it could be seen that the case of the second defendant that the first defendant and the plaintiffs are living together and only in order to defraud him, the plaintiffs have presently challenged the alienation made in faovur of the second defendant by the first defendant without any basis and therefore, according to the second defendant, the plaintiffs are unable to substantiate their case with acceptable and reliable evidence. The above argument of the second defendant's counsel is appealing and convincing. When it is found that the first defendant and the plaintiffs are living together and it is only the first defendant, who is looking after the family and the first plaintiff in particular has not made out a case of separate residence and entitlement to seek the relief of maintenance from the first defendant, it could be seen that the first defendant being the head and kartha of the family is living with the plaintiffs and therefore, it could be seen that the present suit has been laid by the plaitniffs only at the instigation of the first defendant in order to defeat the lawful entitlement of the second defendant in respect of the suit properties under the sale deed dated 04.03.1998 executed in his favour by the first defendant in respect of the suit properties.
14. The courts below have held that inasmuch as the second plaintiff is entitled to 1/2 share in the suit properties, they had declared that the sale deed dated 04.03.1998 marked as Ex.B1 is valid only to the extent of 1/2 share, to which the first defendant is entitled to and invalid to the extent of 1/2 share, to which the second plaintiff is entitled to. For holding the same, the courts below have found that inasmuch the suit properties are the joint family properties of the first defendant and the plaintiffs 2 & 3, according to them, inasmuch as Ex.B1 alienation was made after the birth of the second plaintiff, the second plaintiff by birth being entitled to 1/2 share in the suit properties, the Ex.B1 sale is invalid to the extent of 1/2 share to which the second plaintiff is entitled to. Further, according to the courts below, inasmuch the first defendant did not obtain the permission of the court for alienating the share, to which, the second plaintiff is entitled to prior to Ex.B1, the Ex.B1 sale is not binding on the second plaintiff. According to the plaintiffs, inasmuch as the suit properties are the joint family properties belonging to the first defendant and his children namely the plaintiffs 2 & 3, the plaintiffs 2 & 3 are entitled to obtain 2/3 share in the suit properties.
15. Per contra, according to the second defendant, the sale deed Ex.B1 is made in his favour by the first defendant in his capacity as Kartha of the family and therefore, according to him, the sale is binding upon his children and inasmuch as the plaintiffs are seeking only undivided interest in the joint family properties for sale in respect of such undivided share in the joint family properties, the permission of the court is unnecessary in the light of Section 6 of The Hindu Minority and Guardianship Act, 1956 and the other provisions contained in the above said Act and therefore, it is contended that Ex.B1 sale is binding on the first defendant's children.
16. In this connection, strong reliance is placed upon the decisions reported in AIR 1996 Supreme Court 2371 (Sri Narayan Bal and others Vs. Sridhar Sutar and others), (1990) 3 Supreme Court Cases 68 (Manibhai and others Vs. Hemraj and others) and 2005-1-L.W.628 (Pandiarajan and four others Vs. Korangi Thyagarajan and seventeen others). All the above said decisions were also placed before the courts below. A perusal of the decision reported in AIR 1996 Supreme Court 2371 (Sri Narayan Bal and others Vs. Sridhar Sutar and others), would go to show that Section 8 of the Hindu Minority and Guardianship Act, 1956, in view of the express terms of Sections 6 & 12 of the above said Act, would not be applicable where a joint Hindu family property is sold /disposed of by the Kartha involving an undivided interest of the minor in the said joint Hindu family property.
17. Further, as per the decision reported in (1990) 3 Supreme Court Cases 68 (Manibhai and others Vs. Hemraj and others), it could be seen that alienation of Joint family property by father to satisfy debts contracted even for his personal benefit and without any legal necessity is binding on his sons on the basis of doctrine of pious obligation if the alienation is not avyavharik or tainted with immorality or illegality and the debts were antecedent in fact as well as in time to the alienation. From the above decisions, therefore it could be seen that inasmuch the plaintiffs are claiming only undivided interest in the suit properties, it could be seen that the first defendant is not necessitated to seek permission of the court to alienate the suit properties as the Kartha of his family.
18. In the light of the above discussions, it has been found that the plaintiffs have miserably failed to establish that the first defendant had driven them out of his residence. The resultant position is that the plaitniffs and the first defendant are living together. Further, it could be concluded that the first defendant is the manager/Kartha of the family consisting of himself and the plaintiffs. Ex.B1 sale deed was effected in the year 1998. Even according to the plaintiffs, the first defendant had driven them out of his residence only in or about 2001. That apart, as found earlier, the plaintiffs have failed to establish that the first defendant fell into evil ways and ill treated the plaintiffs and not looking after them and neglected them. Therefore, it could be seen that all those allegations had been made by the plaintiffs only for the purpose of this case, in order to avoid the sale effected by the first defendant in favour of the second defendant.
19. In such circumstances, as rightly argued by the counsel appearing for the second defendant, the corollary would be that only as the kartha of the family, the first defendant had alienated the suit properties in favour of the second defendant under Ex.B1. However, the courts below have on the basis of the fact that inasmuch the first defendant has in Ex.B1 had claimed that the properties comprised therein are his own properties and that he is alienating the same for meeting his urgent expenses, expansion of business activities and for discharging sundry debts proceeded to hold that the first defendant had not alienated the suit properties under Ex.B1 for the family necessity and therefore, for such alienation, he should have obtained the sanction of the court under Section 8 of the Hindu Minority and Guardianship Act, 1956 and thereby, distinguished the authorities projected by the second defendant's counsel aforementioned. However, the above approach of the courts below is found to be erroneous and against the authorities laid down by the apex court. When it has not been made out by the plaintiffs that the first defendant at any point of time had acted against their interest and welfare and when it is found that the plaintiffs are not living separately and only living with the first defendant and thereby, when the first appellate court has also declined the relief of maintenance granted in favour of the first plaintiff by the trial court and when the plaintiffs have miserably failed to establish that the first defendant had been indulging in illegal/immoral activities and thereby, neglected the plaintiffs' welfare completely, it could be seen that even though there is specific mention in Ex.B1 that the first defendant is alienating the properties comprised herein claiming to his own, it could be seen that the first defendant had alienated the properties found therein only as the head of the family for meeting the family expenses, business development and for discharging antecedent debts. That apart, it has not been established by the plaintiffs that the first defendant spent the sale price of Ex.B1 transaction for any illegal /immoral activities as pleaded by them. Therefore, it could be seen that when admittedly the plaintiffs were living together with the first defendant, during the time when Ex.B1 sale was effected and even thereafter, when the plaintiffs have miserably failed to establish that the first defendant had driven them out of his residence and also, failed to establish that the first defendant was not managing the family and looking after the welfare of the children and on the other hand, when it is found from the evidence adduced in the matter that it is only the first defendant, who is looking after the family, admitted his ward into the school etc., it could be seen that in order to meet the family expenses, business development, and discharge the antecedent debts, the first defendant had effected Ex.B1 sale in favour of the second defendant.
20. In such circumstances, as rightly pointed out by the apex court for effecting such a sale of the family properties and even assuming that the second plaintiff is entitled to any undivided interest in the above said properties, the first defendant is not necessitated to seek the sanction of the court before such alienation. It could also be seen that even assuming for the sake of arguments that the first defendant had effected the above said transaction for his own benefit, when it has not been established that he had been indulging in illegal/immoral activities and the sale transaction had taken place for such purpose, it could be seen that even then the alienation made by the first defendant under Ex.B1 in favour of the second defendant would be valid and binding on his children and therefore, it could be seen that the plaintiffs cannot avoid Ex.B1 transaction and seek or claim share in respect of the properties already sold to the second defendant.
21. In the light of the above discussion, it could be seen that the courts below have failed to see that the sale deed dated 04.03.1998 is binding on the plaintiffs including the second plaintiff as it had been made by the first defendant as the Kartha of the family, for the welfare of the family for lawful needs and the courts below have failed to note that the suit laid by the plaintiffs is a collusive suit filed only at the instigation of the first defendant and that the sale is binding on the plaintiffs including the second plaintiff's share, if any, to which he is entitled to.
22. The courts below have on the basis that inasmuch the first defendant had in Ex.B1 sale deed described the properties as his own properties proceeded to hold that the first defendant had so described the character of the properties in order to defeat the lawful share of the second plaintiff in respect of the same and therefore, disbelieved the case of the second defendant. In such circumstances, it has to be seen as to what is character of the properties that had been derived by the first defendant under the partition effected between him and his father under Ex.A6. According to the plaintiffs, the suit properties are allotted to the share of the first defendant in the partition deed dated 04.12.1997 effected between him and his father Muthusamy in respect of the suit properties and other family properties. Therefore, according to the plaintiffs, the first defendant derived title and right over the suit properties under the above said partition and the copy of the partition deed marked as Ex.A6. Thus, according to the plaintiffs, the plaintiffs 2 & 3 are also having share in the suit properties, which, according to them, are the joint family properties/ancestral properties.
23. In this connection, the first plaintiff, during the course of her evidence, has stated that the suit properties originally belonged to Ramasamy Gounder, who is the father of Muthusamy. Ramasamy Gounder is the grandfather of the first defendant. It is further stated that Ramasamy Gounder had 4 sons and 4 daughters including the second defendant and Muthusamy. Further, according to the first plaintiff, she does not know the partition effected between her husband and her father-in-law, but she has stated that the partition took place on 04.12.1997. Therefore, it could be seen that as per the case of the plaintiffs, the properties had been derived by the first defendant from his father under Ex.A6 partition deed.
24. As per the provisions of Hindu Succession Act, 1956, considering the devolution of interest under Section 8 of the Hindu Succession Act, 1956, amongst the Class-I heirs, the properties derived by the first defendant from his father could only be treated as his separate properties and not as the joint family properties of the first defendant and his children viz. the plaintiff 2 and 3. With reference to the above position of law, there are ample authorities and in this connection, a useful reference may be made to the decisions reported in AIR 1979 MADRAS 1 (The Additional Commissioner of Income-tax, Madras-1 V. P.L.Karuppan Chettiar), 1993 Supp (1) Supreme Court Cases 580 (Commissioner of Income Tax V. P.L.Karuppan Chettiar), (1986) 3 Supreme Court Cases 567 (Commissioner of Wealth Tax, Kanpur and Others V. Chander Sen And Others), (2008) 3 Supreme Court Cases 87 (Bhanwar Singh V. Puran And Others) and the latest decision (2016) 4 Supreme Court Cases 68 (Uttam V. Saubhag Singh and Others). A perusal of the above said decisions would go to show that when the son inherits the property, as per Section 8 of the Hindu Succession Act, 1956, he does not take it as Kartha of his own undivided family, but take it in his individual capacity. Therefore, it could be seen that as per the authoritative pronouncements of the Apex Court and our High Court, the suit properties derived by the first defendant under Ex.A6 could only be treated as the separate properties of the first defendant and not the joint family properties of the first defendant and the plaintiffs 2 and 3 as claimed by the plaintiffs. It could be seen that in toto, on a conjoint reading of Sections 4,8,19 and 30 of the Hindu Succession Act, 1956, if the self acquired property or joint family property, once they get devolved in accordance with Section 8 of Hindu Succession Act, 1956, on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons, who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
25. In the light of the above decisions, when it is found that as per law, the properties derived by the first defendant under Ex.A6 are his separate properties, the Courts below have erred in findings fault on the part of the defendant in describing the suit properties as his own properties in the sale transaction Ex.B1. Therefore, it could be seen that the first defendant has rightly described the suit properties as his own properties in Ex.B1 sale deed. So, when it could be seen that the suit properties are the separate properties of the first defendant and when there is no impediment on his part to alienate the same and when as found earlier, the first defendant is not shown to have been indulging in illegal/immoral activities or excluded the plaintiffs and discarded their interest and welfare, it could be seen that the first defendant is not required to seek sanction from the court to convey his separate properties in favour of the second defendant. Further, it could be seen that when it is found that the suit properties are the separate properties of the first defendant, the claim of 2/3 share by the plaintiffs 2 & 3 on the footing that the suit properties are the joint family properties of the first defendant and the plaintiffs 2 & 3 is completely ruled out. Therefore, it could also be seen that the plaintiffs 2 & 3 and in particular, the second plaintiff is not entitled to claim any share in the properties as the suit properties are the separate properties of the first defendant.
26. The decision relied upon by the respondent counsel reported in (2010) 10 Supreme Court Cases 458 (Pralhad and others V. State of Maharashtra and another) is found to be not applicable to the facts and circumstances of the present case as it is found that no ground is made out to interfere with the findings of the first appellate court declining the relief of maintenance granted in favour of the first plaintiff by the trial court.
In the light of the above discussions, the substantial questions of law formulated in the second appeal are answered in favour of the appellant/second defendant and against the plaintiffs. The judgment and decree of the courts below are set aside and the suit filed by the plaintiff is dismissed in toto. Accordingly, the second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.
16.12.2016 Index : Yes/No Internet: Yes/No sms To
1. The First Additional District Judge, Erode.
2. The Principal Subordinate Judge, Erode.
T.RAVINDRAN,J.
sms Pre-delivery order in S. A.No.59 of 2011 and M.P.No.1 of 2011 16.12.2016 http://www.judis.nic.in