Madras High Court
P.Ramalingam vs C.R.Saraswathi on 13 September, 2017
Author: R.Subramanian
Bench: R. Subramanian
.IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2017
CORAM :
THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN
A.S.No. 748 of 2005
Against
O.S.No. 241 of 2004
1. P.Ramalingam
2. P.Moorthy(Deceased)
3. Pongianna Gounder ...Appellants/Defendants 2,3 & 5
4. M.Valarmathi
5. Minor M.Jayamurugan
6. Minor M.Naveena
7. P.Saraswathi
All are residing at
Jothi Rice Mill, Muthur Road
Rangasamudram, Vilakethi Village
Erode Taluk and District.
(Appellants 4 to 7 impleaded as
LRs. of Deceased 2nd appellant
vide order dated 28.06.2010 in
CMP.Nos.10469 to 10471 /2016) ...Appellants
Vs.
1.C.R.Saraswathi
2.S.Gomathi
3.Kokilambal ...Respondents1 to 3/Plaintiffs
4.Pappammal @ Pappa
5.Ramasami
All are residing at
Thanneerpandalkadu
Rangasamudram
Vilakethi Village
Erode Taluk & District. ...Respondents 4 & 5/Defts.1 & 4
Prayer : Appeal filed under Section 96 read with Order 41 Rule 1 of Civil Procedure Code, to prefer the above Memorandum of grounds of first appeal as against the Judgment and decree of the Learned Principal District Judge of Erode District at Erode in O.S.No.241 of 2004 dated 28.03.2005.
For Appellants : Mr.A.K.Kumaraswamy,
Senior Counsel
for Mr.Kaithamalai Kumaran
For Respondents : Mr.V.Raghavachari
O R D E R
Defendants 2,3 and 5 in O.S.No.241 of 2004 are the appellants herein.
2.The said suit was filed by respondents 1 to 3 in the appeal seeking:
for a declaration that plaintiffs are entitled to half share in the suit property; plaintiffs 2 and 3 are each entitled to half share in the share of the first defendant ; and for partition and for separate possession of 10/25 share of the plaintiffs and for other reliefs.
3.The sum and substance of the case of the plaintiffs is as follows:-
3.1.The first defendant in the suit is the mother in law of the first plaintiff. She lost her husband, when her son Chinnasami, husband of the first plaintiff, was 7 years old.
3.2.The first plaintiff got married to the said Chinnasami on 04.11.1976. The first defendant and her son Chinnasami were employed at Dalmia Cements Company and were living as members of the joint family. The first defendant retired in the year 1990. The first plaintiff's husband Chinnasami took voluntary retirement in the year 1993. The said Chinnasami eventually died 14.01.1994 leaving behind the first defendant, (mother), the first plaintiff (wife) and plaintiffs 2 and 3 (two daughters).
3.3.According to the plaintiffs, the family was possessed of certain properties in Chinnappanaickenpalayam village and the suit properties were purchased out of the assets left by the husband of the first defendant for the benefit of the joint family consisting of herself and her son on 17.09.1963 in the name of the first defendant. After the death of the son, there was some misunderstanding between the first plaintiff and the first defendant. A panchayat was convened and a family arrangement was arrived at on 24.02.1994 and the same was reduced in writing on 25.02.1994.
3.4.According to the said family arrangement, the parties had agreed that the first defendant will not alienate or encumber her half share in the suit property, as the other half share belonging to the fourth defendant Ramasami. The first plaintiff will manage the said half share and maintain plaintiffs 2 and 3 and the first defendant till her life time. After the life time of the first defendant, plaintiffs 2 and 3 will take her property absolutely. The first defendant is entitled to retain the cash and jewels for herself. If the first defendant is not willing to live with the first plaintiff, she is entitled to monthly maintenance to a sum of Rs.3,000/-. The said family arrangement was acknowledged, accepted and acted upon by all the parties concerned. Therefore, it is claimed that the suit properties are joint family properties and plaintiffs 2 and 3 have a right by birth.
3.5.On the above contention, plaintiffs 2 and 3 claimed to have half share in the property, which stands in the name of the first defendant. They would also seek partition and separate possession of 10/25 shares.
4.It is further contended that taking advantage of the strained relationship between the first defendant and the first plaintiff, defendants 2 and 3 had obtained a sale deed from the first defendant on 21.10.1994, as if the property belongs to her absolutely.
5.The plaintiffs would also contend that the sale consideration reflected in the sale deed document i.e. Rs.90,000/- [Rupees Ninety Thousand Only] is absymly low and the properties were worth more than a sum of Rs.4,00,000/- (Rupees Four Lakhs only). Armed with the said sale deed, defendants 2 and 3 attempted to interfere with the possession of the first plaintiff, which resulted in criminal proceedings, in which defendants 2, 3 and 5 were also convicted.
6.The first defendant remained exparte. The second defendant filed a written statement and the fourth defendant Ramasami, who is the co-owner, filed a separate written statement. The written statement of the second defendant was adopted by defendants 3 and 5.
7.The second defendant would contend that there was no joint family property. The first defendant was working in Dalmia Cements Company and from and out of income she got from her employment, she had purchased the suit property even in the year 1963. The husband of the first plaintiff Chinnasami had nothing to do with the said acquisition.
8.The defendants would contend that the husband of the first defendant Gopal Naicker had no property and he was only depending on the earnings of the first defendant. The claim that the property was being enjoyed as a joint family property was also denied by the defendants. In so far as the family arrangement is concerned, defendants 2, 3 and 5 would contend that the family arrangement has been brought up by the plaintiffs in collusion with the first defendant after the sale of the property.
9.Pointing out that it is an unregistered document, which can be brought up at any time, defendants 2, 3 and 5 would contend that the said document has been created only for the purpose of filing of the present suit by the plaintiffs in collusion with the first defendant. The claim that the first plaintiff's husband had constructed a terraced house in the suit property has also been denied by defendants 2, 3 and 5.
10.The sum and substance of the plea of defendants 2, 3 and 5 is that there was no joint family or joint family property which had sufficient income to have aided the purchase of the suit property by the first defendant along with the fourth defendant Ramasami in the year 1963.
11.On the above pleadings, the defendants sought for dismissal of the suit.
12.The fourth defendant Ramasami filed a written statement denying that the husband of first plaintiff dug a well in the suit property along with him and that there was a partition between him and the first defendant and he was allotted separate portion of the property and he had constructed a terraced house in the year 1986 in his share and he has been living in the said portion which was allotted to him. He has also dug a well in the portion allotted to him and defendants 2 and 3 have obtained the sale deed as if the property is undivided.
13.On the above pleadings, the learned Trial Judge framed the following issues:
(1)Whether the plaintiffs are entitled to the relief of partition as prayed for ?
(2)Whether the alleged family arrangement dated 25.02.1994 is true and valid ?
(3)Whether the suit is bad for non-joinder of necessary parties ?
(4)Whether the first defendant has got any title to the suit property ?
(5)To what other relief ?
14.The first plaintiff was examined as PW1 and Exs. A1 to A10 were marked. DWs 1 to 5 were examined on the side of the defendants and Exs. B1 to B31 were marked.
15.Upon consideration of the oral and documentary evidence, the learned Trial Judge concluded that the suit property was purchased out of the income from the alleged joint family property that was in existence in Chinnapppanaickenpalayam Village.
16.The learned Trial Judge also found that the family arrangement is true and valid. But however, he would conclude that being an unregistered document, the family arrangement cannot be looked into for the purpose of showing that the first defendant had given up her rights in the property.
17.The learned Trial Judge further concluded that the family arrangement can be looked into for the collateral purpose to show the nature of the property. Upon such findings, the learned Trial Judge concluded that the first plaintiff would be entitled to 3/96 share and plaintiffs 2 and 3 would be entitled to 15/96 share in the property. The remaining 15/96 share belongs to the first defendant. To that extent, the alienation of the property by the first defendant was upheld by the learned Trial Court.
18.Aggrieved by the Judgment and decree passed by the Principal District Judge, Erode, defendants 2, 3 and 5 have preferred the present appeal.
19.I have heard Mr.A.K.Kumaraswamy, learned Senior Counsel for the counsel for Mr.Kaithamalai Kumaran, appearing for the appellants and Mr.V.Raghavachari, learned counsel appearing for the first defendant. The fourth defendant has been given up in the appeal. Defendants 2 and 3, who are the daughters of the first defendant, though served, have not appeared either in person or through counsel.
20.Mr.A.K.Kumaraswamy, learned Senior Counsel appearing for the appellants, would contend that the sale deed in respect of the suit property, viz., Ex. A1 dated 17.09.1963 stands in the name of the first defendant. Therefore, the first defendant is the owner of the property. It is the plaintiffs' plea that the said property was acquired in the name of the first defendant from and out of the income from the joint family property, which is situated at Chinnappanaickenpalayam Village to establish that the alleged ancestral property yield a sufficient income to enable the first defendant to have enough surplus after spending for her daily family needs and it was that surplus which had been used for the purpose of acquisition of the suit property. On this, the learned Senior Counsel would point out that the claim of the plaintiffs in the plaint is that the suit property was purchased from and out of the assets left by the husband of the first defendant for the benefit of the joint family.
21.The learned counsel would also contend that except the first plaintiff, no other witness has been examined to prove the claim of the plaintiffs. The first plaintiff was admittedly married to the son of the first defendant after the purchase of property on 17.09.1963 and hence, could not have personal knowledge of the acquisition.
22.The learned Senior Counsel drew my attention to the evidence of PW1, wherein she had deposed that the suit property was purchased by the first defendant along with the fourth defendant each contributing a sum of Rs.6,000/- (Rupees Six Thousand Only) and that the sale consideration was paid out of the amount received by the first defendant from the company (Dalmia cements) and the income from the vacant land that belongs to the family.
23.Except this statement of the first plaintiff, according to the learned Senior Counsel, there is no other evidence to show that the family was possessed of other properties, which were capable of yielding income and it was the surplus income from the joint family property that was utilized for the purposes of purchase of the suit property in the name of the first defendant.
24.On the family arrangement dated 25.02.1994, the learned Senior counsel would contend that it is an unregistered document under which the first defendant is stated to have relinquished her right over the property. Therefore, according to the learned Senior Counsel, the said document is not admissible in evidence for want of proper stamp and registration. He would also contend that the document viz., the family arrangement dated 25.02.1994, has been created by the plaintiffs in collusion with the first defendant after the sale of the properties. He would also point out that stamp papers for a value of Rs.10/- which has been used in Exhibit A2. Two Rs.5/- stamp papers used in creation of Ex.A2, family arrangement, have been purchased from the stamp vendor at Trichirapalli, whereas the parties are residents of a village in Erode Taluk of Erode district. Pointing out that though the family arrangement is witnessed at least by 4 persons, none of them has been examined to speak about the said family arrangement the learned Senior Counsel would contend that the family arrangement has not been proved. He would also point out that in order to bind parties, the family arrangement particularly an unregistered family arrangement, should be proved to be bonafide.
25.Per contra, Mr.V.Raghavachari, the learned counsel appearing for the first respondent / first plaintiff would contend that the existence of ancestral nucleus is admitted by DW1. Therefore, he would contend that once existence of ancestral nucleus is admitted, then, there is a presumption that the property belongs to the joint family. It is for the person who wants to assert his/her right over a property to prove that it was purchased out of the exclusive income of the person in whose name the sale deed stands. He would also heavily rely upon the family arrangement and contend that the family arrangement need not be a registered document, it can be entered upon for amicably settling a dispute in the family. It is not necessary the family arrangement should be confined only to the joint family properties. The members of the family can, in order to maintain peace and bring about harmony in the family, enter into such family arrangement. He would also invite my attention to the judgment of the Hon'ble Supreme Court of India in the case of Maturi Pullaiah and another Vs. Maturi Narasimham and others reported in AIR 1966 SC 1836 and to the judgment of the Division Bench of this Court in the case of Arumuga Udayar vs Swamiyar Alias Ramasamy Udayar reported in 1997 (3) CTC 612.
26.Mr.V.Raghavachari, learned counsel appearing for the first respondent would contend that when the mother can be a member of the joint family, she can enter into a family arrangement in order to settle the dispute amicably.
27.On the rival submissions, the following issues arose for determination in this appeal.
(1) Whether the family arrangement dated 25.02.1994 could be held a bonafide and valid instrument effecting a settlement of disputes within the family ?
(2) Whether the plaintiffs have established that the suit property was purchased from and out of the income from the alleged joint family properties that were available in the hands of the first defendant ?
28.No doubt, it is true that the Hon'ble Supreme Court of India in the case of Maturi Pullaiah and another Vs. Maturi Narasimham and others reported in AIR 1966 SC 1836 has held that a family arrangement need not be a registered instrument and once it is shown that the family arrangement was entered into bonafide in order to amicably settle the disputes in the family to bring peace and harmony in the family, the same would be valid. The Hon'ble Supreme Court has specifically pointed out that before a family arrangement is relied upon, it should be proved that it is concluded with an object of settling the bonafide dispute arising out of conflicting claims to a property. Bonafides is the essence of its validity. Therefore, it is incumbant on the plaintiffs to prove that the family arrangement dated 25.02.1994 is a bonafide document entered into with an object of settling the dispute in the family. It is to be immediately pointed out that except the evidence of PW1, there is no other evidence available to prove the family arrangement. The family arrangement is witnessed at least by four persons. None of the said witnesses have been examined to prove the factum of the family arrangement. We are left with the interested testimony of the first plaintiff with reference to the family arrangement.
29.The fact that the stamp papers for a value of Rs.10/- has been purchased at Trichirapalli, when the parties are admittedly residents of a village in Erode Taluk, Erode district raises considerable suspicion about the genuineness and bonafide nature of the family arrangement. The family arrangement also does not recite that the property was purchased from and out of the income of the joint family properties. It only recites that the property was treated as a joint family property. According to the appellants/defendants, the said family arrangement has been created after the sale by the plaintiffs in collusion with the first defendant. The fact that the first defendant has remained exparte is also a circumstance which should be borne in mind before deciding on the genuineness of the said document. Being an unregistered document it has to be tested with greater case. There is no explanation on the side of the plaintiffs for non-examination of any of the witnesses to the said instrument. As already stated, there are four witnesses to the said document, but none of them has been examined.
30.In my considered opinion, the interested testimony of PW1 alone is not sufficient to prove that the family arrangement is true and it is a bonafide attempt to settle the disputes between the parties. Therefore, I conclude that the family arrangement is not a bonafide document and the same cannot be looked into for the purpose of deciding the rights of the first defendant over the suit property.
31.It would be appropriate to extract the following observations of the Hon'ble Supreme Court of India with reference to the validity of a family arrangement.
17.Briefly stated, though conflict of legal claims in present or in future if generally a condition for the validity of a family arrangement, it is no necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it. (emphasis supplied)
32.Therefore, an essential requirement to validate a family arrangement is to show that it was in recognition of existing right, apart from proving that it was a fair and bonafide transaction. Unless such plea of existing right is established, the family arrangement cannot be termed to be a bonafide transaction.
Point No.2
33.The essence of the plaintiffs' case is that the family was possessed of certain other properties in Chinnappanaickenpalayam Village and it was the income from the said property which was used for the purpose of purchase of the suit property on 17.09.1963 by the first defendant. PW1 would depose as follows:-
fk;ngdpapy; te;j gzj;ij itj;Jk; v';;fs; Flk;gj;jpw;F ghj;jpag;gll fhypaplj;jpypUe;J te;j tUkhdj;ij itj;Jk; vd; khkpahh; 4k; gpujpthjpSld; nrh;e;J jhth g{kpia tpiyf;F th';fpdhh;. In her cross-examination she would depose as follows:-
nrd;dg;gehaf;fd;ghisak; vd;khkdhUf;F ghj;jpag;gl;l tPl;L kid ,lk; ,Ue;jJ. me;j ,lj;jpy; fl;Lj;jiu ,Uf;fpwJ. me;j ,lj;jpwFz;lhd Mtz';fis tPl;oy; itj;J ,Uf;fpnwd;. nrd;dg;gehaf;fd;ghisaj;jpy; xU fhyp,lk; ,Ug;gjhft[k; mjpy;tUkhdk; ,Uf;fpwJ vd;W gpuhjpy; Fwpg;gpltpy;iy. nrd;dg;gehaf;fd;ghisaj;jpy; fhypaplk; ,d;Dk; gphptpidahfhky; Tl;lhf jhd; ,Uf;fpwJ.
34.From the above evidence, it is clear that the so-called ancestral property that was available at Chinnappanaickenpalayam was only a house site and the first plaintiff as PW1 has in fact admitted that she had not pleaded that the plaintiffs' family had property at Chinnappanaickenpalayam, from the proceeds of which the suit property was purchased.
35.The acquisition of the suit property is in the name of a female member. Therefore, the burden is more heavier on the plaintiffs to show that the property was acquired for the benefit of the family from and out of the income of the family. Even in her Chief examination, the first plaintiff has stated that the property was purchased out of the income of the first defendant, which she got from the company (Dalmia Cements) and the income from the vacant land that belonged to the family. What exactly was the income from the vacant land and what exactly was the surplus available at the time of acquisition, are not spoken to by the first plaintiff. Yet another circumstance is that the first plaintiff, who got married to Chinnasami, son of the first defendant, after 1963, does not have any personal knowledge about the income from the property in the year 1963. She has not chosen to let in any other evidence to prove such income.
36.The law is well settled that it is not enough for the plaintiffs who claim that the property standing in the name of a female member has been purchased out of the joint family nucleus, to prove the availability of the nucleus alone, they must go one step further to prove the income from the nucleus and that was enough surplus available in the hands of the family to have contributed for the said purchase. Such evidence is totally absent in the case on hand.
37.No doubt, Mr.V.Raghavachari, the learned counsel appearing for the first defendant would point out that the second defendant as DW1 has admitted the fact that the property was purchased out of the income from the joint family property at Chennappanaickenpalayam. He would invite my attention to the following evidence of the first defendant of DW1 in his cross-examination :
Kjy; gpujpthjpapd; fztUf;F 14 brz;l; fhyp epyk; cs;sJ vd;why; mJ gw;wp vdf;F njhpahJ. me;j epyj;jpDs; te;j tUkhdj;jpypUe;Jk;. ghg;gk;khs; tUkhdj;jpypUe;Jk; jhd; fpiuar; brhj;J th';;fg;gl;lJ vd;why; rhpjhd;.
38.Heavily relying upon the above said statement, Mr.V.Raghavachari, learned counsel for the first defendant would contend that in view of the admission made by the first defendant in his cross examination, no further evidence is required on the side of the plaintiffs to show that the property was purchased from and out of the income from the ancestral property.
39.I am unable to agree with the said submission of the learned counsel. The second defendant is a stranger to the family. The said evidence cannot be read in a piecemeal, but that the entire cross-examination has to be read as a whole.
40.In the course of his evidence DW1 has also stated that he denied the very existence of the alleged joint family property at Chinnappanaickenpalayam. Even the suggestion in cross-examination extracted above would show that the extent of the admitted ancestral property is only 14 cents. I have already extracted the evidence of PW1, wherein she stated 14 cents of land is a house site. Therefore, the claim of the plaintiffs that the suit property was purchased out of the income from the 14 cents of land, which is admittedly a house site, does not appear to be convincing.
41.In the absence of any other evidence, I do not think the said admission, that too in the cross-examination while denying the suggestions, can be taken as proof of the character of the property that was acquired by the first defendant under the sale deed on 17.09.1963.
42.Therefore, the plaintiffs have miserably failed to prove that the property was purchased out of the income from the joint family property, so that the suit property is to be treated as joint family property and the son of the first defendant had a right which in turn devolved on his death on plaintiffs 2 and 3.
43.The learned Trial Judge had concluded that the suit property was purchased out of the joint family funds only based on the family arrangement on 25.02.1994. Since I have held that the said document is not a bonafide instrument, the said conclusion of the trial court has to be set aside.
44.In fine the appeal is allowed and the judgment and decree of the trial Court are set aside and the suit in O.S.No.241 of 2004 would stand dismissed. However, in the circumstances of the case, I make no order as to costs.
13.09.2017 maya Index : Yes/No Internet : Yes/No Speaking /Non-speaking order To The Principal District Judge of Erode District, Erode R.SUBRAMANIAN, J maya A. S. No. 748 of 2005 13.09.2017