Madras High Court
C.Sekar vs Minor Sobika on 25 November, 2019
Author: T.Ravindran
Bench: T.Ravindran
A.S.No.53 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving the Judgment Date of Pronouncing the Judgment
28.11.2019 12.12.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
A.S.No.53 of 2012
1.C.Sekar
2.C.Rajamani
3.Rukmani ... Appellants
-vs-
1.Minor Sobika
rep.by next friend
and mother R.Nithya
2.R.Nithya
3.R.Jai Ganesh
4.Chinnammal
5.Pavayee
6.N.Panneerselvam ... Respondents
[R6 impleaded vide order of
the court dated 25.11.2019
made in C.M.P.No.5760 of
2016]
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A.S.No.53 of 2012
PRAYER: Appeal is filed under Order 41 Rule 1 r/w Section 96 of the Code of
Civil Procedure to set aside the Judgment and Decree, dated 19.11.2011 made
in O.S.No.102 of 2008, on the file of the Principal District Court, Namakkal.
For Appellants : Mr.N.Manokaran
For Respondents : Mr.S.Kalyanaraman for R1 & R2
Mr.M.Guruprasad for R3
R4 & R5 – Ex parte
Mr.S.Parthasarathy, Senior Counsel
assisted by Mr.S.Kaithamalai Kumaran for R6
JUDGMENT
Aggrieved over the Judgment and Decree, dated 19.11.2011, passed in O.S.No.102 of 2008, on the file of the Principal District Court, Namakkal, the defendants 1 to 3 have preferred the first appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.
3. Suit for partition and permanent injunction.
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4. The case of the plaintiffs in brief is that the first defendant is the father of the first plaintiff, the second plaintiff is the wife of the first defendant and the defendants 2 and 3 are the sister and mother of the first defendant. The first item of the suit properties is the joint family ancestral property of the first defendant and his father Chinnusamy. Chinnusamy died three years prior to the filing of the suit leaving behind the defendants 1 to 3 as his legal heirs. The second item of the suit properties was purchased out of the money given by the parents of the second plaintiff and also some amount contributed by the first defendant from the joint family nucleus.
5. For doing transport business, the parents of the second plaintiff gave a sum of Rs.5,00,000/- for the purchase of two lorries described in the second item of the suit properties and that apart, the parents of the second plaintiff also gave a sum of Rs.2,00,000/- for the purchase of the house plot described in the second item of the suit properties and after the marriage, the second plaintiff and the first defendant lived happily for a short period and the defendants 1 and 3 ill-treated the second plaintiff by insisting to get some more money from her parents and when the second plaintiff expressed her inability to get further amounts from her parents, the first defendant neglected 3/17 http://www.judis.nic.in A.S.No.53 of 2012 the plaintiffs and at present, the plaintiffs are living with the support of the second plaintiff's parents.
6. The first defendant is leading a wayward life and attempting to alienate the suit properties with a view to deprive the legitimate shares of the plaintiffs. In the first item of the suit properties, the first plaintiff is entitled to 2/6th share and in the second item, the plaintiffs are totally entitled to 3/4th share and further putforth that the defendants 5 and 6 have by themselves impleaded as parties in the proceedings and thus, according to the plaintiffs, they had been necessitated to lay the suit against the defendants for appropriate reliefs.
7. The defendants 1 to 3 resisted the plaintiffs' suit contending that the relationship between the parties is true, however, would state that the case of the plaintiffs that the second item of the suit properties was purchased out of the money provided by the parents of the second plaintiff is false and that some amounts had been contributed by the first defendant from the joint family nucleus is also false. According to them, the second item of the suit properties was purchased from and out of the hard earned money of the first defendant and the same had been enjoyed by him as his exclusive property till 4/17 http://www.judis.nic.in A.S.No.53 of 2012 he sold the same to the fourth defendant for a valid consideration to discharge a portion of the debts and the said property is in the possession of the fourth defendant. The lorry business ended in loss. The defendants disputed the case of the plaintiffs that the second plaintiff's parents provided Rs.5,00,000/- for purchasing lorries and a sum of Rs.2,00,000/- for purchasing house plot described in the second item of the suit properties. The first defendant was indebted to the tune of Rs.42,00,000/- and therefore, the second plaintiff left the family with the first plaintiff and also lodged a false complaint against the first defendant. It is stated that since the first defendant purchased the lorry bearing registration No.TN37 Q0760 in the name of the second plaintiff, she had taken the lorry with the Police help and the said lorry is kept idle. The parents of the second plaintiff have no cash to advance the amount to the first defendant.
8. It is further putforth that matrimonial proceedings are pending between the first defendant and the second plaintiff and stated that the defendants 2 and 3 are entitled to 2/3rd share and the first plaintiff and the first defendant are entitled to 1/6th share each in the first item of the suit properties and contended that in respect of the second item of the suit properties, no one is entitled to any share as the same belongs to the first 5/17 http://www.judis.nic.in A.S.No.53 of 2012 defendant, except the property sold to the fourth defendant. The allegation that the defendants are attempting to alienate the suit properties is false and also contended by way of additional written statement that the quantum of shares prayed for by the plaintiffs is excessive, after the impleadment of the defendants 5 and 6 and in toto, prayed for the dismissal of the plaintiffs' suit.
9. The defendants 5 and 6 resisted the plaintiffs' suit contending that the second item of the suit properties is the self-acquisition of the first defendant and the same had been purchased by him from the borrowings and hard earned money and the first defendant had also sold the same to the fourth defendant for valid consideration to discharge the debts and contended that the second plaintiff's parents had not provided any funds for the acquisition of the second item of the suit properties. It is further putforth that the first defendant is not leading a wayward life as alleged by the plaintiffs and stated that the plaintiffs left the dwelling house voluntarily without any reason and the shares claimed by the plaintiffs are excessive and the suit is bad for inclusion of the second item of the suit properties and accordingly, prayed for the dismissal of the plaintiffs' suit.
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10. On the basis of the above pleadings, the following issues were framed for consideration by the Trial Court:
i. Whether the plaintiffs are entitled to 2/6th share in the first item of property?
ii. Whether the plaintiffs are entitled to 3/4th share in the second item of property?
iii. Whether the plaintiffs are entitled to permanent injunction as alleged in the plaintiffs?
iv. Whether the second item of property is self
acquired property of the first defendant?
v. To what relief if any the plaintiff is entitled to?
11. In support of the plaintiffs' case, P.Ws.1 and 2 were examined and Exs.A1 to A3 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and no document was marked.
12. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Trial Court was pleased to declare that the first plaintiff is entitled to obtain the relief of partition and separate possession of 2/9th share in the first item of the suit 7/17 http://www.judis.nic.in A.S.No.53 of 2012 properties and both the plaintiffs are entitled to obtain the relief of partition and separate possession of 3/4th share in the second item of the suit properties and also granted the relief of permanent injunction as prayed for by the plaintiffs and accordingly, passed the preliminary decree in favour of the plaintiffs. Impugning the same, the defendants 1 to 3 have preferred the first appeal.
13. The following points arise for determination in this first appeal:
i. Whether the second item of the suit properties is the self-acquired property of the first defendant?
ii. Whether the plaintiffs are entitled to obtain the relief of partition and separate possession of their shares in the suit properties as putforth by them in the plaint?
iii. Whether the plaintiffs are entitled to obtain the relief of permanent injunction as claimed by them?
iv. To what relief the plaintiffs are entitled to?
v. To what relief the defendants / appellants are
entitled to?
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Point Nos.1 to 3:
14. The second plaintiff is the wife of the first defendant and the first plaintiff is the daughter of the first defendant and the second plaintiff. It is not in dispute that the first item of the suit properties is the joint family ancestral property of the first defendant and his father Chinnusamy. The second defendant is the daughter and the third defendant is the wife of Chinnusamy. From the materials placed on record, it is found that Chinnusamy died three years prior to the institution of the suit leaving behind the defendants 1 to 3 as his legal heirs.
15. As regards the first item of the suit properties, even the contesting defendants, namely, the defendants 1 to 3 have admitted that the first plaintiff is entitled to share in the same. According to the plaintiffs, the first plaintiff is entitled to 2/6th share in the first item of the suit properties. Whereas, according to the contesting defendants, the first plaintiff is entitled to 1/6th share in the first item of the suit properties. However, the Trial Court had held that the first plaintiff is entitled to 2/9th share in the first item of the suit properties. Considering the position that Chinnusamy had died after coming into force of the Hindu Succession Amendment Act, 2005, accordingly, it is seen that the Trial Court, on the basis of notional partition, determined 9/17 http://www.judis.nic.in A.S.No.53 of 2012 that the first plaintiff is entitled to 2/9th share in the first item of the suit properties. I do not find any valid reason to interfere with the abovesaid determination of the Trial Court as regards the allotment of 2/9 th share to the first plaintiff in the first item of the suit properties and the same is confirmed.
16. The parties are at dispute only as regards the second item of the suit properties. According to the plaintiffs, the second item, consisting of the house plot and two lorries, had been purchased in the name of the first defendant out of the amounts contributed by the parents of the second plaintiff and also putforth that some amount had been contributed towards the same by the first defendant from the joint family nucleus. However, the abovesaid case of the plaintiffs has been seriously challenged by the contesting defendants. According to the contesting defendants, the second item of the suit properties had been purchased by the first defendant out of his income and also by incurring debts and therefore, putforth the case that the plaintiffs are not entitled to claim any share in the second item of the suit properties.
17. By pleading that the second item of the suit properties had 10/17 http://www.judis.nic.in A.S.No.53 of 2012 been purchased in the name of the first defendant out of the contributions made by the second plaintiff's parents, it is found that the plaintiffs have taken the plea of benami qua the second item of the suit properties, which admittedly stands in the name of the first defendant. In such view of the matter, the plaintiffs having come forward with the case of benami and would putforth the case that for the acquisition of the second item of the suit properties, the parents of the second plaintiff had contributed the amounts i.e., Rs.5,00,000/- and Rs.2,00,000/-, however, when the abovesaid case of the plaintiffs has been vehemently resisted by the contesting defendants, at the foremost, it is for the plaintiffs to establish that the second plaintiff's parents had contributed the abovesaid amounts to the first defendant for the acquisition of the properties described in the second item.
18. In this connection, the second plaintiff's father P.Rangasamy has been examined as P.W.2. P.W.2, during the course of cross-examination, has admitted that there is no record to evidence that he had advanced a sum of Rs.2,00,000/- to the first defendant and would claim that for the purchase of the lorries, during 1999, he had advanced a sum of Rs.5,00,000/- and further, would admit that the lorry bearing registration No.TN37 Q0760 is in his custody and the same had been retrieved with the Police aid and would 11/17 http://www.judis.nic.in A.S.No.53 of 2012 further state that he has not maintained any accounts and paid income tax and also admit that he has not provided monetary assistance to the first defendant for the purchase of the lorries bearing registration Nos.TN02 R6205 and TN28 R2854, however, would claim that the abovesaid lorries had been purchased out of the income derived from the lorry business done by the first defendant. Therefore, when it is seen that no material, as such, had been provided by the plaintiffs, particularly, when there is no material projected by P.W.2 for holding that it was he, who had advanced the money for the acquisition of the second item of the suit properties, in such view of the matter, as rightly contended by the learned counsel appearing for the contesting defendants, the Trial Court has totally erred in accepting the oral evidence of P.W.2 as the gospel truth for upholding the claim of benami purchase of the second item of the suit properties in the name of the first defendant as putforth by them. When the abovesaid case of benami transaction pleaded by the plaintiffs qua the second item of the suit properties has been seriously contested by the first defendant and despite the same, when the plaintiffs had failed to substantiate their case, particularly, to prove that P.W.2 had contributed any amount for the acquisition of the same and when according to P.W.2, he is not maintaining any accounts and not paying income tax and further, would also admit that he had not contributed any 12/17 http://www.judis.nic.in A.S.No.53 of 2012 amount for the acquisition of the lorries described in the second item and though he would claim that the said lorries had been acquired out of the income done by the first defendant in the lorry business, however, when with reference to the same, there is no material forthcoming on the part of the plaintiffs, as such, in all, it is seen that as rightly argued by the learned counsel appearing for the contesting defendants, there is complete absence of material on the part of the plaintiffs to hold that the amounts had flown from the plaintiffs for the acquisition of the second item of the suit properties as pleaded by them. Accordingly, it is seen that when the plaintiffs have only taken the plea of benami qua the second item and when admittedly the second item of the suit properties stands in the name of the first defendant and when the benami transaction pleaded by the plaintiffs qua the second item does not fall under the exception of the definition of the benami transactions as provided under the Prohibition of Benami Property Transactions Act, 1988, in all, it is seen that the plea of benami projected by the plaintiffs qua the second item cannot be upheld in any manner and the abovesaid factors have been failed to be considered by the Trial Court both factually as well as legally and erred in upholding the plaintiffs case on the footing that the first defendant had failed to establish his claim of acquisition of the properties described in the second item through his income and borrowal of amounts as putforth by 13/17 http://www.judis.nic.in A.S.No.53 of 2012 him.
19. When, as above pointed out, the second item of the suit properties admittedly stands in the name of the first defendant, in such view of the matter, the plaintiffs having taken the plea of benami, when they have failed to establish their case, particularly, that the same had been acquired out of the contribution made by the second plaintiff's parents as above pointed out and also when it is noted that the plea of benami putforth by the plaintiffs qua the second item does not fall under the exception of the definition of the benami transaction as provided under the Prohibition of Benami Property Transactions Act, 1988, the Trial Court is found to have erred in shifting the burden upon the contesting defendants to sustain their defence and thereby, further erred in upholding the plaintiffs' case. As rightly putforth by the learned counsel appearing for the contesting defendants, when the second item of the suit properties stands in the name of the first defendant and the plaintiffs have failed to establish the case of benami transaction, as putforth by them, with reference to the same, in such view of the matter, the second item of the suit properties can only be held to be absolutely belonging to the first defendant and therefore, it is seen that the plaintiffs would not be entitled to claim any share in the second item of the suit properties as claimed by 14/17 http://www.judis.nic.in A.S.No.53 of 2012 them.
20. Insofar as this case is concerned, though pleas and evidence had been adduced as to the reasons for the plaintiffs leaving the matrimonial home of the first defendant, those are unnecessary for consideration and accordingly, as above discussed, when the plaintiffs have failed to establish their case of benami transaction qua the second item of the suit properties and the Trial Court having accepted the plaintiffs' case by erroneously shifting the burden on the defendants, in such view of the matter, the determination of the Trial Court declaring that the plaintiffs are entitled to 3/4th share in the second item of the suit properties is liable to be set aside.
21. In the light of the above discussions, I hold that the second item of the suit properties is the separate property of the first defendant. I, therefore, hold that the plaintiffs are not entitled to claim any share in the second item of the suit properties. I hold that the plaintiffs are entitled to claim 2/9th share in the first item of the suit properties as determined by the Trial Court. I, therefore, hold that the plaintiffs are entitled to claim the relief of permanent injunction as prayed for only as regards the first item and not in respect of the second item of the suit properties. Accordingly, the point Nos.1 15/17 http://www.judis.nic.in A.S.No.53 of 2012 to 3 are answered.
Point Nos.4 & 5:
22. For the reasons aforestated, the Judgment and Decree, dated 19.11.2011, passed in O.S.No.102 of 2008, on the file of the Principal District Court, Namakkal, declaring that the plaintiffs are entitled to 2/9th share in the first item of the suit properties and the grant of permanent injunction with reference to the first item of the suit properties are confirmed and in other aspects, the same are set aside and consequently, the suit laid by the plaintiffs is dismissed as regards the second item of the suit properties. Accordingly, the first appeal is partly allowed. Considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petition, if any, is closed.
12.12.2019
Internet : Yes / No
Index : Yes / No
krk
To:
The Principal District Judge,
Namakkal.
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A.S.No.53 of 2012
T.RAVINDRAN, J.
krk
JUDGMENT
IN
A.S.No.53 of 2012
12.12.2019
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