Pachaiyappa Chettiar v. E. Thirunavukarasu Chettiar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 21.11.2019 PRONOUNCED ON : 03.01.2020

CORAM

THE HONOURABLE MR. JUSTICE T.RAVINDRAN A.S.No.463 of 2011 and CMP No.18796 of 2019 1.Pachaiyappa Chettiar 2.Sundaram 3.Hari 4.Jothiammal 5.Ravi alias K.Ravikumar 6.Venu 7.Ramesh 8.Venkatesan 9.Usha 10.Luxmi ...

Appellants/Defendants 1, 3 to 11 Vs.

1.E.Thirunavukkarasu Chettiar 2.Ramamoorthy 3.Murugan ... Respondents/Plaintiffs (Cause title accepted vide order dated 28/09/2011 made in MP.1/2011 in AS.SR. 46410/011) Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code as against the judgment and decree dated 02.02.2011 made in O.S.No.25/2007 on the file of the Additional District Judge, Fast Track Court - III, Tiruvallur.

For Appellants : Mr.M.S.Subramanian For Respondents : Mr.R.Munuswamy *****

JUDGMENT

Aggrieved over the judgment and decree dated 02.02.2011, passed in O.S.No.25/2007, on the file of the Additional District Judge, Fast Track Court - III, Tiruvallur, the defendants 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 mesne profits.

4. The case of the plaintiffs, in brief, is that the defendants and the first plaintiff are the sons of Elumalai and Janakiammal and all belong to an undivided hindu joint family and owning the suit properties and jointly enjoying the same and out of the joint efforts, huge extents were purchased by the first plaintiff and the first defendant and out of the same and business, other items were acquired out of the income derived now and then by the joint family and the documents were taken in the name of any one member. During 1996, the joint family owned 70 acres of land, three houses, two rice mills and ten house sites, four lorries, provision stores, harvest machine, two cars, one mini bus.

Out of which, some lands are ancestral and two lorries were purchased and the harvest machine was sold out and in 2005, another 45 acres of land was purchased out of the income from the joint family in the name of brothers and their sons and others. The fourth defendant had been looking after the entire joint family properties after the death of the father. As the properties of the joint family are huge, the brothers were put in possession of some lands for convenient cultivation by the brothers and their sons. The plaintiffs 2 and 3 are the sons of the first plaintiff, there has been no division and partition of the suit properties by metes and bounds and no separate possession had been entrusted by any one by demarcating and dividing the suit properties by metes and bounds.

Pending suit, the second defendant had died and his legal representatives are impleaded as defendants 5 to 11. The plaintiffs demanded division by way of notice dated 21.02.2006. The defendants sent a reply on 09.03.2006 containing false allegations. There was no division effected in 1996 as alleged by the defendants. There was no mediation in the presence of elders as stated in the reply and there was no division or allotment of specific items. The properties in the possession of the brothers is by way of convenient cultivation without any division of the actual suit items. All the suit properties belong to the brothers.

Merely because the third defendant is living away from the other brothers and put in possession of certain items, there cannot be any severance of joint status and all the brothers remain as joint family members and accordingly, the plaintiffs together are entitled to 1/5 equal share in the suit properties and the fourth defendant appears to have acquired the properties in the name of his son and wife and they were purchased out of the joint family funds and hence, according to the plaintiffs, they have been necessitated to institute the suit claiming partition.

5.The defendants resisted the plaintiffs suit contending that the relationship between the parties is true. However, according to them, the suit properties are not in the joint possession of the plaintiffs and the defendants and disputed that out of the joint efforts, huge extents were purchased by the first defendant and the first plaintiff and other items were

acquired out of the income derived from the joint family properties and disputed the claim of the plaintiffs that the joint family owns various properties as set out in the plaint and also disputed that the 45 acres of lands were acquired out of the joint family income in the names of their brothers and their sons and others and that the fourth defendant has been looking after the business of the joint family and for the sake of convenience, the brothers were put in separate possession of the land and enjoying the same without any division by metes and bounds.

According to the defendants, there had been partition of the joint family properties effected in the year 1996 in the presence of Kandhasamy mudhaliar, Sivaraja mudhaliar and other mediators and by way of the same, the joint family properties were divided by metes and bounds between the first plaintiff and the defendants. The first plaintiff and the defendants had been allotted various properties in the abovesaid partition as set out in the written statement and further, it is stated that the item 1 of an extent of 0.33.0 hectare in survey number 263/1 and item 47 of an extent of 0.58.5 hectare in survey number 262 in Pudhumavilangai village were purchased in the name of the first defendant and is in the possession of the first plaintiff following the abovesaid partition effected in 1996 and put forth the case that item Nos.

10 to 13, 14 and 28 were purchased by the first defendant's son Jayapal in his name out of his separate earnings and also put forth the case that item Nos. 67 to 71 are neither owned nor possessed and enjoyed by any of the defendants and stated that item Nos. 72 to 84 were purchased by the fourth defendant's son Ashok kumar by way of sale deed dated 29.04.1999, out of his personal funds earned by him in real estate, paddy and rice business and item Nos. 90, 91, 93, 94, 101 to 117 were purchased by the fourth defendant's son Om kumar by way of a sale deed dated 29.04.1999, out of his personal funds earned as similar to his brother Ashok kumar by way of a sale deed dated 05.06.2002 from his separate earnings and item Nos.131 to 138 were purchased by Om kumar by way of a sale deed dated 05.06.2002 out of his separate earnings. On 16.07.

1977, the fourth defendant purchased a site in Pudhumavilangai village from his brother including the first plaintiff and constructed a rice mill thereon out of his personal funds and there are no two rice mills in the suit village belonging to the fourth defendant at the time of partition. The abovesaid rice mill was allowed to be retained by the fourth defendant as his separate property and all the properties purchased by the fourth defendant were out of his income from the said rice mill and accordingly, prayed for the dismissal of the plaintiffs suit. 6.

1.Whether the plaintiffs are entitled to 1/5 share in the suit items?

2.Whether partition, was effected in

1996 as alleged in the written statement?

3.Whether the items mentioned in para 7 of written statement are the separate properties of 4th defendant?

4.Whether the lands in Panambakkam are the separate properties of 3rd defendant?

5.Whether the Rice Mills belong to 4th defendant alone?

6.To what relief are the plaintiffs entitled?

7. In support of the plaintiffs' case, PW1 was examined, Exs.A1 to A3 were marked. On the side of the defendants, DWs 1 to 8 were examined and no document has been marked. 8.On the basis of the materials placed on record and the submissions made, the trial Court was pleased to hold that the plaintiffs are entitled to 1/5 share in the suit properties and directed the determination of the future mesne profits by way of a separate proceeding and accordingly, passed a preliminary decree in favour of the plaintiffs. Impugning the same, the first appeal has been preferred by the defendants. 9.During the pendency of first appeal, the defendants have preferred a petition for the reception of additional evidence under Order 41 Rule 27 C.P.C. in C.M.P.No. 18796 of 2019. C.M.P.No. 18796 of 2019.

10. In the abovesaid petition, the defendants would put forth the case that various properties had been acquired by them independently, particularly, by the sons of the fourth defendant and the fourth defendant also out of his own funds and stated that they have been advised to apply for the certified copies of the abovesaid sale deeds and other documents in support of their case for a complete and proper adjudication of the issues involved between the parties and accordingly had secured the same and as the additional evidence projected by them are necessary and material for disposing of the appeal and as they were unable to produce the documents before the trial Court, according to them, the additional documents projected by them should be received as additional evidence and accordingly, the appeal should be heard and disposed of.

11.The plaintiffs resisted the abovesaid petition contending that the claim of the defendants that various properties had been acquired by them out of their own funds and income are false and the defendants have not come forward with any valid reason as to why they had not projected the additional evidence before the trial Court and chose to file the same only during the pendency of the appeal that too very belatedly and

according to them, the defendants have wantonly and deliberately kept the additional documents away from the scrutiny of the trial Court and come forward with a new case that they got the certified copies only recently and unable to project before the trial Court and the petition laid for the additional evidence does not meet the requirements or the ingredients of Order 41 Rule 27 C.P.C and only with a view to defeat the rights and interest of the plaintiffs, the petition has been laid by them without assigning any acceptable reason and accordingly prayed for the dismissal of the petition.

12. The point that arises for determination in the abovesaid petition is whether the same is entitled for acceptance.

13.The following main points arise for determination in this first appeal.

1.Whether the joint family properties belonging to the parties had been divided by metes and bounds during 1996 in the presence of mediators as claimed by the defendants?

2.Whether the plaintiffs are entitled to partition and separate possession of 1/5 share in the suit properties as put forth by them?

3.Whether the claim of the defendants that the various properties as set out in the written statement had been acquired by them and their sons independently out of their own sources of income as claimed by them?

4.To what relief, the plaintiffs are entitled to?

5.To what relief, the defendants/appellants are entitled to?

Point Nos.1 to 3 and point in C.M.P.No.18796 of 2019 14.The relationship between the parties is not in dispute. According to the plaintiffs, the first plaintiff and the defendants 1 to 3 are the sons of Elumalai and Janakiammal and the joint family consisting of the first plaintiff and the defendants 1 to 3 owned various properties and out of the income derived from the family properties, various other items had been acquired by them and enjoyed as the joint family properties and accordingly put forth the case that the suit properties as described in the plaint are the joint family properties belonging to the joint family consisting of the first plaintiff and the defendants 1 to 3 and it is further put forth by them that on account of the ownership of the vast properties by the joint family, for the sake of convenience, the brothers had been allowed to enjoy the properties separately for the sake of

convenience and interest and however, no division of the joint family properties had been effected by way of metes and bounds and accordingly, claiming 1/5 share in the joint family properties i.e. suit properties, the plaintiffs had laid the suit.

15.The defendants resisted the plaintiffs suit mainly contending that the joint family properties belonging to the joint family consisting of the first plaintiff and the defendants 1 to 3 had been divided by metes and bounds during 1996 in the presence of mediators and the first plaintiff and the defendants 1 to 3 were allotted their respective shares in the abovesaid partition as set out in the written statement and further put forth the case that the fourth defendant and his sons had acquired various properties independently out of their own source of income and enjoyed as their separate properties and therefore, according to the defendants, the plaintiffs cannot reopen the partition already effected and seek for a fresh partition and therefore, prayed for the dismissal of the plaintiffs suit.

16.

In the light of the abovesaid rival submissions put forth by the respective parties, when the plaintiffs have come forward with a case contending that the suit properties are the joint family properties and the joint family members had been enjoying certain properties separately for the sake of convenience and interest without any division by metes and bounds and accordingly claimed their share in the suit properties and the defendants by resisting the plaintiffs suit, had come froward with the version that the joint family properties belonging to the family had been orally divided by metes and bounds in the year 1996 in the presence of mediators and also would claim that various other suit properties had been acquired by them independently out of their own sources as set out in the written statement, accordingly, when the defendants have come forward with the case as if the joint family properties had been already divided by metes and bounds in the year 1996, as put forth by them, it is for the defendants to establish the abovesaid version by acceptable oral and documentary evidence.

17.Therefore, it has to be seen whether the defendants have sustained their abovesaid case by adducing reliable and convincing evidence. In this connection, the defendants has examined DWs 1 to 8 in support of their case. DW1 Pachaiappa Chettiar is the first defendant and during the course of cross examination, DW1 would admit that it is only the fourth defendant who is in the know of things and only the fourth defendant knew about the suit properties and he does not know the survey numbers, extent and nature of the lands as nanjai and punjai and does not know as to how many house sites belong to them and the survey numbers of the same and also admitted that he does not know as to the extent of the lands owned by the

family during 1996 and would state that the properties had already been divided in the panchayat orally and would further state that he does not know in which survey number and to what extent the brothers were allotted the properties and further admitted that the properties had been acquired in the names of the family members and further stated that the sons of the fourth defendant were minors three years prior to his examination and also stated that at the time of partition, no estimate had been made and they had not fixed any ratio by way of which the properties should be divided and the above being the evidence of DW1, in such view of the matter, as rightly contended by the plaintiffs' counsel, his evidence would be of no use to sustain the plea of oral partition put forth by the defendants, particularly, the division of the properties in the year 1996 by metes and bounds, as put forth by the defendants.

As above pointed out, DW1, the first defendant would state that it is only the fourth defendant who is in the know of things and he does not know anything of about the properties, so his evidence cannot be the basis for accepting the plea of partition projected by the defendants. DW2, Ravi, is the son of the second defendant and he, during the course of cross examination would also admit that only his paternal uncle, namely, the fourth defendant know about the suit properties and he does not know anything directly about the same and according to him, the suit properties had not been divided vide survey numbers and admitted that he cannot tell about the joint family properties owned by the family and lastly admitted that he does not know anything about the suit properties.

Therefore, his evidence would be of no use to sustain the case of the defence version projected by the defendants. DW3 Sundaram, the third defendant, also during the course of cross examination, has admitted that the oral partition had been effected in the suit village at Kandigai and he does not know who were the elders of the village at the relevant point of time and admitted that the house sites had not been measured and further admitted that no measurements of the land had also been made and further, when he has pleaded ignorance about the properties described in the plaint, the above being his evidence, as rightly put forth by the plaintiffs, his evidence cannot be the basis in any manner for accepting the plea of partition put forth by the defendants. 18.

The fourth defendant, Hari, examined as DW4, during the course of examination would claim that the oral partition had been effected in the residence of Pachaiappa Chettiar in the suit village. As abovenoted, according to DW3, the partition was effected in Kandigai of the suit village and DW4 has further stated that in the written statement they had not stated at what date, place, and month, the oral partition was effected.

family members and also admitted that in his family no one is employed and further also admitted that no patta had been effected independently in the name of the brothers and also admitted that he has not filed any statement of accounts regarding the income and expenses and further admitted that the rice mill site was acquired during the year 1977 and at that time partition was not effected and further admitted that the rice mill licence can be acquired only in the individual name and above being the evidence of DW4, as rightly contended, his evidence cannot be the basis for accepting the oral partition projected by the defendants.

19.DW5 Nagendran is the priest. He would state that the first plaintiff and the defendants 1 to 3 had offered thidhis to their parents separately. On the basis of the evidence of DW5, the defendants endeavoured to claim the severance of the status of the parties. However, the abovesaid factors alone would not be the decisive criteria for holding that the joint family properties belonging to the members had been divided by metes and bounds as put forth by the defendants. Therefore, DW5's evidence would be of no use to sustain the case of division of the family properties as put forth by the defendants. 20.

DW6, Om kumar, son of the fourth defendant, during the course of cross examination would claim that he had acquired the properties in his own name and admitted that he cannot place any material in support of his version and he has independently carrying on the business and though would claim that he is having accounts, he had not endeavoured to produce the said accounts and also plead ignorance as to for what value he has purchased the stamp papers for the acquisition of the properties in his name and accordingly, when he has not placed any material to hold that he had been independently carrying on business and earning income and when it is found that the joint family own vast properties as set out in the plaint and though the defendants, particularly, the fourth defendant and his sons would claim that they had acquired various items of the suit properties independently out of their own funds and income and when nothing has been placed by them, not even a scrap of paper has been placed by them to sustain the abovesaid plea and DW6 having also admitted that he has not placed any proof in support of his independent income and also not endeavoured to place the accounts stated to be in his custody, in such view of the matter, DW6 evidence would be of no use to uphold his claim of acquisition of the suit properties independently out of his own source of income.

21.DW7, Kandasamy mudaliar, stated to be the mediator who had effected the partition during the year 1996 has stated that the partition had been effected in his house during the month of thai about 15 years ago. As above pointed out, the place where the partition had been effected, there is no consensus in the evidence of the defendants as above discussed and the witnesses

examined on behalf of the defendants give various places as regards the site of oral partition effected during the year 1996.

During the course of cross examination, DW7 would claim that he had effected the mediation for the division of the properties and the parties had recorded the same in writing and he does not remember whether he had put his signature in the said document and therefore, when DW7 would claim that a written record had been created for the division of the properties and when the same is not the case of the defendants and when the defendants have only pleaded oral partition, the abovesaid improvement made by DW7 would only go to show that inasmuch as he is no way associated with the division of the properties as put forth by the defendants, accordingly, he is unable to sustain his evidence by placing acceptable and reliable materials. On the other hand, he would claim that the partition had been effected by way of a written instrument.

Therefore, DW7's evidence has to be rejected outright and even during the course of chief examination, he has very very vaguely stated that the parties had lorries and tractors and not detailed as to what are the shares allotted to the various family members and whether the shares allotted to them are alike. In the light of the above position, DW7's evidence does not merit acceptance in any manner.

22.DW8 Ashok kumar, son of the fourth defendant, would claim that he had derived properties in his name from the real estate business, paddy and rice business and during the course of cross examination, he would admit that to sustain the separate business, he has not filed any statement of accounts. He would admit that for the acquisition of the properties, he has accounts to establish the same and however, not produced the same and would also admit that he has no income tax account and therefore, when there is no material placed on record to hold that DW8 had been engaged in the separate business and any income received therefrom, in such view of the matter, the evidence of DW8 that he had acquired various properties out of his own resources and income cannot be countenanced in any manner.

23.In the light of the above factors, when the evidence of DWs 1 to 8 do not inspire confidence for sustaining the plea of alleged oral partition effected during 1996 by metes and bounds and when there is no material at all placed on the part of the fourth defendant and others to hold that they had been engaged in the separate business and earning independently separate income therefrom and as abovenoted, the defendants had not placed any material before the trial Court for sustaining their case for the acquisition of the various properties in their independent capacity and when it is seen that the joint family had owned vast extent of properties in the nature of various lands, house sites, rice mills, lorries, provision stores, harvest machine, two cars, one mini bus etc., and accordingly, when it is evident that out of the vast and considerable

properties, they had mobilised the income and utilising the income, they were in a position to acquire the various other properties and accordingly, it is found that various properties had been acquired in the names of the various family members and in such view of the matter, when the ancestral nucleus are found to be yielding sufficient income and only by way of the same, the other properties had been acquired in the names of the various family members and when the family members in whose names the various properties had been acquired had failed to establish their independent source of income and business as claimed by them and with reference to the same, no material has been placed before the trial Court and when the defendants are unable to show as to in what mode the properties had been divided by metes and bounds, particularly, unable to state as regards the basis on which the shares had been allotted, whether on the basis of the measurement of the properties or on the basis of the value of the same or on the basis of convenience and when with reference to the same, other than the very very vague pleadings that the oral partition had been effected during 1996 and nothing more has been divulged about the mode of partition and allotment of the shares to the various members, in such view of the matter, as rightly determined by the trial Court, the defendants have miserably failed to establish the division of the family properties by metes and bounds during 1996 and resultantly, the inevitable conclusion that could arise is that the properties belonging to the family are held and enjoyed by all the family members and however, considering the vast extent of the properties owned by the joint family, it is found that for the sake of convenience, they had been enjoying the separate properties.

That alone would not be the basis for holding that the parties are enjoying the properties only after effecting division by way of metes and bounds. If that be the case, by this point of time, the properties would have been mutated in the name of the independent sharers and when with reference to the same, there is absolutely no material projected on the part of the defendants other than the oral assertion and when the oral assertion is found to be unreliable and not convincing, in all, it is seen that the claim of the oral partition put forth by the defendants during 1996 is found to be a false theory and invented by the defendants without any basis. 24.

The defendants' counsel would contend that there has been no plea put forth by the plaintiffs that the income derived from the various family properties had been put in the common hotchpot and by way of the same, the various properties had been acquired in the names of the family members. However, the abovesaid contention does not merit acceptance.

acquisition of the various properties in the names of the family members, when such pleas had been clearly set out by the plaintiffs in the plaint, the contention of the defendants' counsel that the plaintiffs have not pleaded about the blending of the income of the family properties into the common hotchpotch, as such, cannot be accepted in any manner.

When the defendants have failed to establish their independent source of income, particularly, on the part of the fourth defendant and his sons and when considering the very nature of the family properties and when they are found to be income yielding in huge quantity and the same forms part of the acquisition of the family properties but the defendants had been claiming that the properties had been divided by metes and bounds orally during the year 1996 without any basis, either on the basis of the measurements of the properties or on the value of the same and when the alleged mediator examined on behalf of the defendants would claim that the written instrument had been recorded with reference to the division and when it is not the plea of the defendants, all put together, would only lead to the conclusion that the plea of oral partition put forth by the defendants is totally unacceptable and untenable.

25.As regards the additional evidence projected by the defendants, as rightly contended by the plaintiffs' counsel, the defendants have not pleaded any reason as to why they have not placed the additional evidence before the trial Court.

It is not the case of the defendants that they are not unaware of the additional evidence projected by them and accordingly, when the defendants are found to be in the know of things as regards the pleas put forth by them and accordingly, when the abovesaid pleas projected by them had not been accepted by the plaintiffs, in such view of the matter, if really the defendants have any basis for the claim of oral division as projected by them, they would have endeavoured to project the additional evidence during the course of trial and without any foundation or basis, it is found that the defendants have come forward with the additional evidence and when none of the ingredients contemplated under Order 41 Rule 27 CPC has been satisfied by the defendants in any manner and no valid reason has been projected by them for not producing the same before the trial Court, in such view of the matter, the additional evidence projected by the defendants cannot be entertained either factually or legally and with a view to further delay the proceeding, it is seen that the present petition for the reception of additional evidence has been laid and I therefore hold that the petition for the reception of additional evidence is totally devoid of merits and the petition is liable to be dismissed.

26. In support of the various contentions, the plaintiff's counsel placed reliance upon the decisions reported in (2012) 8 SCC 148 (Union of India Vs. Ibrahim Uddin and another), AIR 1969 Mad 329 (Nagayasami and Ors. Vs. Kochadai Naidu and Ors.), (1989) 2 MLJ 506 (Ponnuswamy Vs. Meenakshi Ammal and Ors.),

(1996) 2 MLJ 207 (Thambiran Naicker and Anr. Vs. Duraiswamy Naicker and Ors.), (1972) 1 MLJ 141 (V.Srinivasan and Ors. Vs. Sundaramurthi and Anr.), (1975) 2 MLJ 73 (C.K.Krishnan Vs. C.K.Shanmugham and Ors.) and S.A.No.666 of 2015, dated 13.11.2018 (Palanivelu and Ors. Vs. Muniappan. The defendants' counsel placed reliance upon the decisions reported in AIR 2001 Karnataka 120 (Lakshmamma Vs. Kamalamma), Vol. 90 L.W. 583 (Kumaraswami Gounder and others Vs. Subba Gounder (died) and others), AIR 1937 Mad 538 (Kotikelapudi Venkatramayya Vs. Digavalli Seshamma and others), AIR 1965 SC 289 (1) (K.V.Narayanaswami Iyer Vs. K.V.Ramakrishna Iyer and others), 1972 (1) MLJ 141 (V.Srinivasan and others. Vs. Sundaramurthi and another) and (2008) 7 MLJ 1210 (P.Arumugham and another Vs. P.Balasubramaniam and others). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.

27. In the light of the abovesaid discussions, I hold that the case of the defendants that the joint family properties had been orally divided by metes and bounds during 1996 in the presence of mediators is false and not established. I further hold that the claim of the defendants that the various properties had been acquired by them and their sons independently out of their own source of income is false and not established. I therefore hold that the plaintiffs are entitled to obtain partition and separate possession of 1/5 share in the suit properties as put forth them. For the reasons aforestated, the petition for reception of additional evidence is dismissed. Accordingly, the point Nos. 1 to 3 and the point in CMP is answered.

Point Nos.4 & 5:

28. For the reasons aforestated, the judgment and decree dated 02.02.2011, passed in O.S.No.25/2007, on the file of the Additional District Judge, Fast Track Court - III, Tiruvallur are confirmed and resultantly, the first appeal is dismissed with costs. C.M.P.No.18796 of 2019 is dismissed. Consequently, connected miscellaneous petition, if any, is closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar sli To:

The Additional District Judge, Fast Track Court - III, Tiruvallur.

Copy to:

The Section Officer, V.R.Section, High Court, Madras.

+1cc to Mr.R.Munuswamy, Advocate, S.R.No. 425 +2cc to Mr.M.S.Subramanian, Advocate, S.R.No.562 A.S.No.463 of 2011 and CMP No.18796 of 2019 SAI(CO) GN(21/01/2021)