Madras High Court
M/S.Mohan Breweries Distilleries (P) ... vs K.Moorthy on 27 June, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.No.21 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.06.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S.No.21 of 2000
M/s.Mohan Breweries Distilleries (P) Ltd.,
rep. by M.D.Nandagopal,
having its administrative Office at
IInd Floor, Royala Towers,
Anna Salai, Chennai-2. ... 3rd Defendant/Appellant
Vs.
1.K.Moorthy
2.Subbulakshmi
3.Thurachi
4.Suseela
5.Durai
6.Kalai Selvan
7.Kannan
(Minor respondents 5 to 7 declared as major and
guardianship of their brother and natural
guardian (1st respondent) is discharged vide
Court Order dated 24.02.2022 made in
C.M.P(MD) No.5537/2017 in
A.S.No.21/2000) ...Plaintiffs/Respondents 1 to 7
8. Rajammal ...1st Defendant/8th Respondent
9.K.Muthupandian ... IInd Defendant/9th Respondent
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https://www.mhc.tn.gov.in/judis
A.S.No.21 of 2000
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment and decree dated 19.07.1999 made in O.S.No.
114/1995, on the file of the Principal Subordinate Judge, Nagercoil.
For Appellant : Mr.R.Devaraj
For R2 to R4 : M/s.S.Hemalatha
JUDGMENT
The respondents are the plaintiffs. The appellant is the third defendant and the respondents 8 & 9 are the defendants 1 & 2. The respondents 1 to 7 filed a suit in O.S.No.114 of 1995, on the file of the Principal Subordinate Court, Nagercoil for partition against the appellant and the respondents 8 and 9 and separate possession. After trial, the trial Court came to the conclusion that the plaintiffs are entitled to partition and decreed the suit and passed the preliminary decree. Challenging the said judgment and decree, the third defendant in the said suit has filed the present appeal.
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2. According to the case of the plaintiffs, as per the plaint that the plaintiffs 1 to 7 and the second defendant are the children of Kalyanasundara Thevar, the first defendant is his wife. The said Kalyanasundara Thevar purchased the first item of the suit property under a registered sale deeds, dated 16.11.1967 and 12.06.1968 and from the date of purchase, he was in possession and enjoyment of the property. He paid the Tax also. The suit items Nos.2 to 5 are the ancestral properties. The said Kalyanasundara Thevar died on 21.03.1988. The plaintiffs 1 to 7 and the defendants 1 & 2 are the legal heirs of the Kalyanasundara Thevar and therefore, they are subject to the Hindu Succession Act. After the death of Kalyana Sundara Thevar, the plaintiffs 1 to 7 and the defendants 1 & 2 are coparceners under the Hindu Succession Act. The plaintiffs 5 to 7 are the minors. The plaintiffs are entitled to 7/9th share and the defendants 1 & 2 are entitled to 2/9th share in the suit schedule property. The plaintiffs and the defendants 1 & 2 are jointly enjoying the suit schedule property. It has now come to light that the defendants 1 & 2 have wasted the joint family property with an intention of committing acts which are offensive or _________ Page 3 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 harmful to the plaintiffs. On 21.09.1994 the defendants 1 & 2 have sold the item No.1 of the suit schedule property to the third defendant and at that time the plaintiffs 5 to 7 are minors. They have sold the property without any permission from the Court. The defendants 1 & 2 have no right to sell the joint family property. The sale was not made for the welfare of the joint family or for the welfare of the minors. The sale is not legally valid because it is fraudulent. The value of the first item of the suit schedule property is very high but they have sold the property at a low price. The above said sale is not binding on the 7/9th share of the plaintiffs, therefore, the plaintiffs are entitled to 7/9th share in the suit schedule property. The plaintiffs seeks for partition from the defendants but they have refused. Therefore, they have filed the suit for partition and for permanent injunction.
3. The defendants 1 & 2 are exparte before the trial Court. The third defendant resisted the suit by filing a written statement stating that the averments contained in the plaint are all false. Further, it is stated that the _________ Page 4 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 first item of the suit schedule property is a joint family property. The said property was purchased by Kalyanasundara Thevar and he maintaining the property along with joint family property as a Kartha. After the death of the Kalyanasundara Thevar, his eldest son the second defendant has maintaining the suit property as a Kartha of the family. The plaintiffs and the defendants 1 & 2 are not entitled to any share in the first item of the suit schedule property. It is false to state that the defendants 1 & 2 are jointly enjoying the suit schedule property. From the date of purchase on 21.09.1994 the third defendant has enjoying the property and after the date of purchase the plaintiffs and defendants 1 & 2 are not entitled to joint possession. After the date of purchase, the third defendant has got the revenue records and Patta.
4. It is not correct to state that the defendants 1 and 2 sold the joint family properties in order to make harm to the plaintiffs. After the demise of Kalyanasundara Thevar, his eldest son, the second defendant took care of the plaintiffs and as a Manager, he also maintained the properties. _________ Page 5 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 Kalyanasundara Thevar died on 21.03.1988. Since the second defendant did not get enough income from the joint family properties to maintain the family, he borrowed loans and gave education, food and meet out other expenses. Hence, the second defendant sold the item No.1 to the third defendant for valid consideration of Rs.1,54,071/- to repay the loan borrowed for family expenses and to maintain the family. Since the said property was sold for valid consideration and for the welfare of the plaintiffs, the plaintiffs are not entitled to question the same. The first defendant is also a party to the said sale. The young members of the joint family are well known about the sale of the said property. No one objected for the sale of the property. It is not correct to state that without prior permission of the Court, the properties belonged to the minors could not be sold. It is not correct to state that the said property was not sold for the family expenses and also for the welfare of the minors and legal necessity. It is not correct to state that in order to defeat the rights of the defendants 1 and 2, the sale deed has been forged. It is not correct to state that the said property was sold for low price. The said property was sold by authorised _________ Page 6 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 persons for valid consideration for the welfare of the family members including minors. Since the plaintiffs also availed the benefits of the sale consideration through the sale deed dated 21.09.1994, the said sale deed will bind the plaintiffs also. Therefore, the plaintiffs are not entitled to any share in the item No.1 of the property. The second defendant is empowered to sell the property. The plaintiffs have no locus standi to file a suit against the second defendant in respect of item No.1 of the suit properties. The suit was not valued properly. The Court fees was not properly paid. The item No.1 of the suit property was under valued. Since the item No.1 of the suit property is in possession of the third defendant, the suit for recovery of possession ought to have been filed. The suit for partition is not maintainable in law. The plaintiffs are not entitled to the reliefs sought for in the suit. The third defendant is the owner of the property from 21.09.1994. Since the plaintiffs did not seek for cancellation of the sale deed and also did not seek for recovery of possession, the suit is not maintainable against the third respondent in respect of the item No.1 of the suit property and hence, the suit is liable to be dismissed. The plaintiffs, in collusion with the _________ Page 7 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 defendants 1 and 2 filed the suit for higher profits. Since the third defendant purchased the suit property for valid consideration, the sale deed will bind the plaintiffs. The plaintiffs did not file the suit for bona fide reasons. For the aforesaid reasons, the suit is liable to be dismissed against the third defendant in respect of the item No.1 of the suit property.
5. On the basis of the above pleadings, the learned trial Judge framed the following issues for consideration:
(i) Whether the plaintiffs are entitled to get a 7/9 share in the plaint schedule property?
(ii) Whether the plaintiffs are entitled to permanent injunction?
(iii) Whether the third defendant is a bonafide purchaser?
(iv)What is the remedy available to the plaintiffs?
6. In order to substantiate the case of the plaintiffs, on the side of the plaintiffs, one witness was examined as P.W.1 and 14 documents were marked as Ex.A1 to Ex.A14. In order to substantiate the case of the third _________ Page 8 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 defendant, 2 witnesses were examined as D.W.1 and D.W.2 and 11 documents were marked as Ex.B1 to Ex.B11.
7. After completing the trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the evidence available on record, decreed the suit as mentioned above.
8. The learned counsel for the appellant would submit that the first item of the suit property purchased by one Kalyanasundaram, who is none other than the father of the respondents 1 to 7 & 9 and husband of the 8th respondent. He purchased the property in his name on 16.11.1967 and item Nos.2 to 5 are all ancestral properties. The said Kalyanasundara Thevar died on 21.03.1988 leaving behind the respondents as legal representatives of the said Kalyanasundaram. The appellant purchased the first item of the suit schedule property from the respondents 8 & 9 for valuable consideration under a registered sale deed, dated 21.09.1994. From the date of the sale deed, he took the possession and also enjoying the _________ Page 9 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 property. Now he is in possession of the first item of the suit property. On the date of filing of the suit, first item of the property was in possession of the appellant and the respondents 1 to 7 filed the suit for partition and they have not paid the court fee under Section 37(1) of the Court Fee Act and paid the fixed Court Fee under Section 37(2) of the Court Fee Act as if they are in joint possession.
9. Further, it is submitted that the suit property is ancestral property and it is joint family properties of respondents. The respondents 8 & 9 sold the property to the appellant and since the Kalyanasundaram died, the 9th respondent is the eldest son and who is the Kartha as well as Manager of the joint family and the respondents 8 & 9 sold first item of the property to the appellant for the benefit of the joint family and interest of the minors and also the marriage expenses of the daughters of the Kalyanasundaram. Therefore, even though in the recital of the sale deed it is not specifically stated, but it is stated that for the inevitable expenses of the family. Therefore, the appellant is the bonafide purchaser with valuable _________ Page 10 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 consideration without any notice of defeat in title. Since the appellant's property surrounded with the first item of the property on three sides except northern side and he purchased the property for erecting the Wind Mill and after purchasing the property, he has also erected the windmill. After the death of the Kalyanasundara Thevar the land was kept as fallow land and there was no cultivation carried out and there is no income. The first item of the suit schedule property is the adjacent land of the appellant and he has established the Wind Mill, since it is adjacent to Wind Mill, after the purchase, he fenced the first item of the property annexed with his existing property, where, already Wind Mill was established. Since the suit property is ancestral property and the respondents 8 & 9 sold the property for the legal necessity, therefore, it binds on the other coparceners, now, after selling the property, all the respondents colluded together with each other and the respondents 8 & 9 set up the respondents 1 to 7 and instigated to file the present suit for partition including the property sold to the appellant. Therefore, the sale made in favour of the appellant will bind all the respondents. The trial Court failed to appreciate that after the death of the _________ Page 11 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 Kalyanasundaram Thevar, his wife and eldest son are managing the property and for legal necessity for the benefit of the members and interest of the minors, in order to run the family in a peaceful manner and also educate the minor children and give a marriage to the daughters sold the property, it will bind all the members of the joint family and held that the sale made in favour of the appellant will not bind and therefore, the suit was decreed and preliminary decree was passed which is erroneous. Therefore, the appeal has to be allowed regarding first item of the suit property.
10. The learned counsel for the respondents 1 to 7 would submit that admittedly, the suit properties are joint family properties. After the death of the Kalyanasundara Thevar on 21.03.1988, the appellant without the knowledge of the respondents 1 to 7 purchased the property from the respondents 8 & 9. They are not entitled to any exclusive right over the property. Further, he would submit that the first item of the property was not sold by the respondents 8 & 9 for the benefit of joint family or the interest of the minors or to meet out the marriage expenses of the female _________ Page 12 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 members. The sale is not for legal necessity of the joint family. Even, the recital does not shows that the 9th respondent as the Kartha as well as Manager of the family and for the interest of the minors or the benefit of the joint family sold the property. The recital does not show that on behalf of the other coparceners, he sold or on behalf of the minors he executed the sale deed or they have obtained any permission from the Court for selling the minors share. Therefore, the appellant is not the bonafide purchaser for valuable consideration and hence, the sale in favour of the appellant made by the respondents 8 & 9 would not bind the other respondents 1 to 7 and they were not party to the sale deed. Even at the time of sale, the respondents 1 to 4 were major and respondents 5 to 7 were minors and they did not obtain the signature from the respondents 1 to 4 and the respondents 1 to 4 were never aware of the sale made by the respondents 8 & 9 in favour of the appellant on behalf of the respondents 1 to 4. Therefore, the sale made by 8th and 9th respondents will not bind the respondents 1 to 7 since at the time of sale, respondents 5 to 7 are the minors, therefore, without permission of the Court, the minors share cannot be sold. He would further _________ Page 13 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 submit that even during the life time of Kalyanasundara Thevar, he dugged the well. The daughters of the Kalyanasundara Thevar married much earlier to the sale, therefore, they have not spent any marriage expenses. In this case, the respondents 8 & 9 as first and second defendants in the suit remained ex-parte before the trial Court and they have not filed written statement. They have not come to the witness box and stated that the first item of the suit schedule property was sold for the benefit of the joint family or interest of the minors or for the legal necessity. Therefore, in the absence of any recital regarding the benefit of the joint family he sold the property which will not bind and even the property was sold at a very low price and on the date of filing of the suit, the possession was with the respondents in common enjoyment. The appellant never took the possession. The appellant has not established that he was in possession. The documents filed by the appellant for proving the possession is not for the suit item No.1 of the property. Even otherwise the documents have been obtained for the purpose of filing the suit, the same also no binding the respondents 1 to 7. The trial _________ Page 14 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 Court has rightly appreciated the oral and documentary evidence and decreed the suit for partion and separate possession.
11. Heard the learned counsel appearing for the appellant and the respondents, perused the pleadings, issues framed by the trial Court and oral and documentary evidence adduced and produced by both parties.
12. The suit items 1 to 5 are the joint family property of one Kalyanasundara Thevar and he died on 21.03.1988 leaving behind the respondents in the appeal as his legal representatives and he died intestate and also after the death, the respondents as coparcener of the joint family they are entitled to share in the item Nos.1 to 5 of the suit property. Admittedly, under Ex.B2, the appellant purchased the first item of the suit property from the respondents 8 & 9 alone. Since all the suit properties are joint family properties, the appellant has purchased only one item of the property from the wife of the Kalyanasundara Thevar and one the sons of the Kalyanasundara Thevar and other legal heirs not party to the sale deed. _________ Page 15 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 No doubt, it is a settled proposition of law that if it is a joint family ancestral property and if the Kartha or Manager of the joint family sells the property for the benefit of the members of the joint family or legal necessity to the family, all the coparcener need not be a party to the sale deed, but one condition is that the suit property has to be sold for the legal necessity of the family. As a Kartha or Manager of the family, the elder member of the family can sell the property, but, whereas, in this case, recital does not show that the respondents 8 & 9 sold the property as Kartha or Manager of the joint family for the benefit of the family or for the interest of the respondents 5 to 7, who were minors at the time of sale by obtaining the permission from the Court as a guardian of the minors.
13. Therefore, in the absence of the same the sale will not bind the respondents 1 to 7, who were not party to the said sale deed. Though the appellant claimed that he is the bonafide purchaser for valuable consideration, the second respondent sold as Kartha which is against the recital. Further, the first and second defendants remained ex-parte and they _________ Page 16 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 colluded with the other respondents, at the instigation of the respondents 8 & 9 the other respondents filed the suit. But however, the appellant has not established the said fact. Though the appellant has stated that he has taken the possession and erected Wind Mill but he has not established the said fact. Even though there is no cultivation, but whereas, the respondents established that there was a well, electricity connection, pumbset room. The photographs filed by the respondents clearly show that there is no Windmill and there is electricity connection and Well, therefore, the case of the appellant is not true. The appellant has not established that though it is a settled proposition of law that the plaintiffs have to prove their case on their own strength, they cannot take advantage of the loop-holes of the defendants, when it is a suit for partition. Both the parties are plaintiffs as well as defendants each other. Both are equally liable to establish their respective cases.
14. Admittedly, the properties are the ancestral properties. The respondents are the coparcener of the joint family property and the _________ Page 17 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 properties admittedly not sold for the benefit of the members of the joint family. Though the appellant tried to establish that it was sold only for the benefit of the members of the joint family, he admitted that for the marriage expenses of the female coparcener, the respondents 8 & 9 sold the property, but whereas, he could not establish that at the relevant point of time any female members or coparceners marriage took place. He has not established the fact that the consideration paid by him was utilised for the education expenses of minors or for purchasing the property for the welfare of the joint family to meet out the family expenses or for construction of any house. Admittedly, 9th respondent was residing in Chennai. The 8th respondent also residing along with son the second respondent in Chennai, but the respondents 1 to 7 are in the Village and therefore, even the respondents 1 to 7 were not aware of the sale and they have not benefited out of the sale consideration. When a person pleads that the property was sold for the benefit of the joint family or for the interest of the minors, the person, who pleads has to prove it. The respondents 1 to 7 denied that the properties were sold for the interest of the minors or compelling _________ Page 18 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 circumstances of the family to meet out the expenses or any legal necessity arises, then the person claims that it is sold for the benefit of the joint family, has to prove it. Though the respondents 1 to 7 as a plaintiffs established their case, when the appellant pleads that the sale is for the benefit of joint family, it is absolutely Ex.B2 sale deed, does not show that the respondents 8 & 9 sold as a Kartha and Manager of the joint family and the property was sold for the benefit of the joint family or interest of the minors or for the legal necessity and in the absence of the same, it is for the appellant to establish the case contrary to the recital and the recital is silent about the purpose for which sold or under what capacity the vendors sold the property. Admittedly, in this case, the appellant has not established even though there was no recital in the sale deed, but during the evidence had attempted to establish, but he failed to establish and the respondents 1 to 7 have proved that the appellant is not bonafide purchaser without any notice for valuable consideration and therefore, in this case, the appellant failed to establish that he was the bonafide purchaser for valuable consideration without any notice, his sale bind all the respondents including the _________ Page 19 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 respondents 1 to 7 and therefore, in the absence of the same, he is not entitled to get any equitable relief.
15. The trial Court rightly appreciated the pleadings, oral and documentary evidence and found that the respondents have established their case for partition and separate possession, the appellant has not established his defence. Further, as far as the payment of Court fee is concerned though the appellant has stated that from the date of sale deed he was in possession, but he has not established that he is in possession. Even patta stands in his name only from 1997. The suit filed in the year 1995, the documents relied on by the appellant for establishing the possession are during the pendency of the suit, therefore, it will not bind the respondents. In this case, the appellant has not established that as on the date of filing of the suit, he was in possession and the plaintiffs were in out of possession, therefore payment of court fee under Section 37(1) would not arise. The respondents 1 to 7 have filed the suit for partition claiming joint possession either physical or constructive, are liable to pay the Court fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act. Therefore, the appellant has not _________ Page 20 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 established their case and the respondents 1 to 7 are the plaintifs they have established the case and as far as items Nos.2 to 5 is concerned, there is no dispute, therefore, the respondents each are entitled to 1/9 share. As far as the first item is concerned, the appellant has not established that the respondents 8 & 9 sold the property for the benefit of the members of the joint family and interest of the minors and bind all the coparceners. Therefore, in the absence of the same, the plaintiffs have established that the sale is not binding the respondents 1 to 7, therefore, the respondents 1 to 7 /plaintiffs are entitled to 7/9 share in all the item of the property. Therefore, the preliminary decree passed by the trial Court is in order. The first appellate Court is a fact finding Court and this Court also re-appreciate the pleadings, both oral and documentary evidence and finds that the respondents 1 to 7 as plaintiffs have proved their case and they are entitled for 7/9 share and each are entitled to 1/9th share and therefore, this Court does not find any grounds to set aside the judgment rendered by the trial Court and there is no reason to interfere with the judgment of the trial Court. Therefore, this appeal is liable to be dismissed.
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16. In the result, the appeal fails and the same is dismissed and the judgment and decree of the trial Court is confirmed. In a recent judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549, Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others, it has been held as follows:-
''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the _________ Page 22 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.''
17.As per the above latest decision of the Hon'ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceedings after passing the preliminary decree. Therefore, the appellant is directed to divide the property by metes and bounds and hand over the possession to the respondents as per the preliminary decree passed by the trial Court, within a period of two months from the date of receipt of a copy of this judgment, otherwise, the trial Court _________ Page 23 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 is directed to initiate suo motu final decree proceedings and appoint an advocate commissioner and proceed with the same and pass a final decree. Since already the suit is pending from 1995, all the final decree proceedings shall be completed within a period of six months from the date of its initiation. Registry is directed to send the original records to the trial Court concerned along with the judgment and decree made in this appeal within a period of fifteen days from the date of this judgment. No costs.
27.06.2022 Index : Yes / No Speaking Order : Yes / No am _________ Page 24 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 To
1. The Principal Subordinate Judge, Nagercoil.
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
_________ Page 25 of 26 https://www.mhc.tn.gov.in/judis A.S.No.21 of 2000 P.VELMURUGAN, J.
am A.S. No.21 of 2000 27.06.2022 _________ Page 26 of 26 https://www.mhc.tn.gov.in/judis