Natarajan v. Ambika Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.03.2020

CORAM:

THE HON'BLE MR.JUSTICE R.SUBRAMANIAN S.A.No.770 of 2014 and MP.No.1 of 2014 1.Natarajan 2.Nagarajan 3.Ramesh ... Appellants/Appellants 1 to 3/ Defendants 1,2& 4

Versus

1.Ambika Ammal 2.Sivakumar 3.Sivaprakash 4.Sivaraj ... Respondents 1 to 4/Respondents 1 to 4/ Plaintiff 1 to 4 5.Nedunchezhian ...5thRespondent/5th Respondent/3rd Defendant Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 01.04.2014 passed in A.S.No.27 of 2009 on the file of the Additional District Court, Tindivanam, confirming the judgment and decree dated 15.10.2008 passed in O.S.No.14 of 2004 before the Additional District Munsif's Court, Tindivanam.

For Appellants : Ms.R.Meenal For Respondents : No Appearance (for R1 to R4) : Given up - R5

J U D G M E N T

The defendants 1, 2 and 4 in O.S. No. 14 of 2004 on the file of the Additional District Munsif Court, Tindivanam, who suffered a decree for declaration of title and permanent injunction at hands of the Courts below, have come up with this second Appeal.

2.The plaintiffs sued for declaration and for injunction contending that the suit properties belonged to the husband of

the first plaintiff and father of the plaintiffs 2 to 4, (late Gopalakirshnan). According to the plaintiffs, Gopalakrishnan had purchased all the suit properties out of his own income as Post Master and from the income from the business in IMFL, which he was carrying on under license from Tamil Nadu State Marketing Corporation Limited (TASMAC). Contending that the defendants, who are brothers of the said Gopalakrishnan, attempted to interfere with the possession of the plaintiffs, hence, the plaintiffs sought for the aforesaid reliefs.

3.One of the brothers namely the third defendant, did not contest the suit. The defendants 1, 2 and 4 filed written statement contending that the suit properties are not the separate properties of Gopalakrishnan. It was claimed that Sri Rama Gounder, father of Gopalakrishnan and the defendants 1, 2 and 4, were in possession of ancestral properties and the suit properties were purchased in the name of Gopalakrishnan out of income from the said properties. The suit properties were treated as joint family properties even after the death of Sri Rama Gounder on 08.05.1980. Therefore, the defendants would claim that the suit properties should be characterized as ancestral properties, in which, the defendants would have a share by birth.

4.At trial, the first plaintiff was examined as PW.1 and Ex's.A1 to A26 were marked. One Elumalai was examined as PW.2. The first defendant/ Natarajan and the fourth defendant/Ramesh were examined as DW.1 and DW.2 respectively, while one Govindhan and Jayaraman were examined as DW.3 and DW.4 and Exs.B1 to B54 were marked.

5.Upon consideration of the evidence on record, the Trial Court came to the conclusion that the defendants have not established their claim that the suit properties were purchased out of surplus income from the ancestral nucleus left by Sri Rama Gounder. It was also found that the said Gopalakrishnan had his own independent income to have purchased the suit properties under Exs.A1 to A8, A10, A11 between 16.06.1980 and 26.08.1986. The Trial Court also took note of the fact that other sons of Sri Rama Gounder including the defendants 1, 2 and 4 had dealt with various properties by way of purchase as well as sale, which indicated that the family was not joint and sons of Sri Rama Gounder had separate properties and were dealing with the same as their own properties. On apparising the evidence of record, the Trial Court concluded that the suit properties were separate properties of Gopalakrishnan and the defendants have no claim over the same. On the said conclusion the Trial Court decreed the suit granting relief of declaration and injunction as prayed for.

6.Aggrieved, the defendants 1, 2 and 4 preferred an appeal in A.S.No.27 of 2009 on the file of the Additional District Court, Tindivanam. The Appellate Court on re-appreciation of the evidence agreed with the findings of the Trial Court and dismissed the appeal. It is as against the said concurrent findings, the defendants 1, 2 and 4 have come up with this Second Appeal.

7.The following substantial questions of law were framed at the time of admission:- "1. Whether in law the Courts below are right in failing to see that when substantial ancestral nucleus with surplus income had been shown, there is a presumption as to the existence of a joint family and joint family acquisitions?

2.

Whether in law the Courts below are right in overlooking that the sisters of the appellants being necessary parties, their non-joinder would initiate the suit? "

8.I have heard Ms. R.Meenal, learned counsel for the appellants. The respondents were served notice but they have not appeared either in person or through counsel duly instructed. 9.Elaborating on the questions of law framed, Ms.R.Meenal, learned counsel for the appellants strenuously contended that the Courts below have overlooked the fact that the there is sufficient and more evidence to show that the family of Sri Rama Gounder possessed vast extent of agricultural land. The Sons of Sri Rama Gounder have dealt with the suit properties jointly even after the death of Sri Rama Gounder. According to her the fact that the joint family possessed vast extent of agricultural land would demonstrate that the family had sufficient surplus income to purchase the properties.

She would also point out that the Sisters of the appellants who are necessary parties, have not been impleaded, therefore, the Courts below should not have granted declaration of title in their absence. 10.I have considered the submissions of the learned counsel for the appellants. On the first question, regarding the nature of the property, the Courts below have concluded that though Sri Rama Gounder was possessed about 10 acres of agricultural land, he had a large family of 5 sons and 4 daughters and therefore there being surplus income from the agricultural lands is ruled out. The Lower Appellate Court had specifically pointed out that the first defendant/DW1 has admitted that the property of Sri Rama Gounder were divided between his sons and each one in possession separate extent of properties of their own.

On the acquisition of property by Gopalakrishnan under Exs.

it was found that the properties were purchased, after the death of Sri Rama Gounder and the plaintiffs were able to produce the evidence, both oral and documentary to show that Gopalakrishnan was employed as Post master, he was also doing business in IMFL and had separate earnings. Similarly, it was demonstrated that Gopalakrishnan was independently gainfully employed and had purchased the properties under various documents. 11.It is settled law that mere possession of properties by the family is not sufficient to characterize the properties standing in the name by one of the co-parceners, particularly a junior member of the joint family, in which the others will have a right by birth. The Sale deeds stand in the name of Gopalakrishnan, therefore, there is an initial presumption that Gopalakrishnan owns all the properties.

However it is for the defendants who claim that the properties have been purchased out of ancestral nucleus to establish availability of joint family nucleus and also availability of surplus income from the joint family nucleus. In the absence of any evidence to show that there was surplus income and out of that income, the suit properties were purchased, I do not find any error in the finding of the Appellate Court that the suit properties are separate self acquired properties acquired by Gopalakrishnan out of his own income.

12.Mere existence of properties will not be sufficient evidence to prove that the nature of the properties in the hands of the one of the coparceners as having been purchased out of joint income. The learned counsel for the appellants is unable to show that the factual findings of the Appellate Court could be termed as perverse. In the absence of any evidence to show availability of surplus income, the first substantial question framed is answered to the effect that mere proof of availability of properties with the sons of the predecessor in interest would not be enough to characterize the properties in the hands of a Junior member as co-parcenary properties.

13.As regards the second question, regarding the non impleading of sister namely daughters of Sri Rama Gounder as parties to the suit, I find that either before the Trial Court or the Appellate Court the said question about the non-joinder of necessary or proper party was raised. I find that a plea relating to non-joinder which has not been raised before Courts below cannot be allowed to be raised in the Second Appeal. Even then, the sisters of Gopalakrishnan and the daughters of Sri Rama Gounder cannot be construed to be necessary parties, since it is the case of the plaintiffs that the defendants alone are attempting to interfere with their possession. I therefore, see no merit in the contention of the learned counsel for the appellants regarding the non-joinder of parties, hence, the

second substantial question of law is answered against the appellants.

14.In view of the answers to the substantial questions of law as above, the Second Appeal fails and accordingly, it is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS-III) //True Copy// Sub Assistant Registrar klt To 1.The Additional District Judge, Tindivanam.

2.The Additional District Munsif, Tindivanam.

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

+1cc to Mr.R.Meenal, Advocate, S.R.No.20816 S.A.No.770 of 2014 and MP.No.1 of 2014 BS(CO) GN(07/01/2020)