IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.01.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.Nos.928 of 1997 and 467 of 1998 1.Kannammal 2.Sivakami 3.Bhakkialakshmi ... Appellants/Defendants 4 to 6 in A.S.No.928 of 1997 Chandrasekaran ... Appellant/3rd Defendant in A.S.No.467 of 1998 vs. 1.Vembana Gounder, 2.Nachayammal ... Respondents 1 & 2/Plaintiffs 1 & 2 3.Kolandasami Gounder 4.Chandrasekaran ... 3rd and 4th Respondents/Defendants 2 & 3 in A.S.No.928 of 1997 1.Vembana Gounder, 2.Nachayammal ... Respondents 1 and 2/Plaintiffs 3.Kolandasami Gounder 4.Kannammal 5.Sivakami 6.Bakkialakshmi ... Respondents 3 to 6/Defendants 1, 4 to 6 in A.S.No.467 of 1998 (Respondents 3 to 6 given up as unnecessary parties) Appeals filed under section 96 r/w order 41 Rule 1 of CPC preferred against the judgment and decree dated 27.7.1994 passed in O.S.No.226 of 1983 by the I Additional Subordinate Judge, Erode. For Appellants: Mr.V.K.Muthusami,Sr.counsel for M/s.V.P.Sengottuvel in A.S.No.928 of 1997 Mr.T.Murugamanickam in A.S.No.467 of 1998 https://hcservices.ecourts.gov.in/hcservices/ For Respondents: Mr.A.K.Kumarasamy for R1 & R2 Mr.T.Murugamanickam for R4 in A.S.No.928 of 1997 Mr.V.K.Muthusami,Sr.counsel for M/s.V.P.Sengottuvel in A.S.No.467 of 1998 COMMON JUDGMENT This appeal is focussed as against the judgement and decree dated 27.7.1994 passed in O.S.No.226 of 1983 by the I Additional Subordinate Judge, Erode. 2.Niggard and bereft of details, the facts giving rise to the filing of the suit, as stood exposited from the plaint could be set out thus: (a) The deceased Nachi Muthu Gounder had two sons and two daughters, namely, Subbanna Gounder(D1), Kolandasamy Gounder(D2), Palaniammal and Nachayammal(P2). (b) Subbanna Gounder(D1) died on 8.5.1990 leaving behind Kannammal(D4), Sivagami(D5), Bakkialakshmi(D6) as his legal heirs. The said Palaniammal died leaving behind her sons the first plaintiff-Vembanna Gounder as her legal heir. Kolandasamy Gounder/D2's son is K.Chandrasekaran/D3. (c) The 'A' scheduled properties are admittedly the joint family properties of the said family. The 'B' scheduled properties are the self-acquired properties of the deceased Nachimuthu Gounder. Consequent upon the death of Nachimuthu Gounder on 5.6.1980, his two daughters also along with his sons, became entitled to their respective shares as his legal heirs, in the suit properties. However, the defendants, who are the male descendants of Nachimuthu Gounder colluded together and denied the right of the plaintiffs in the suit properties. (d) There were previous proceedings and the parties litigated up to the High Court in Second Appeal. Ultimately in the previous proceedings the Court directed the parties to file a separate suit for partition. Hence, the present suit was filed by the plaintiffs herein as against the defendants, seeking 1/12th share each in favour of the first and second plaintiffs in the 'A' scheduled properties and 1/4th share each in the 'B' scheduled properties. https://hcservices.ecourts.gov.in/hcservices/ (e) The fact remains that at the instance of the defendants 4, 5 and 6, the 'C' and 'D' scheduled properties were also included in the suit schedule. Accordingly, the plaintiffs prayed for a preliminary decree and consequently, a final decree as per law. 3. Refuting and remonstrating, challenging and impugning the allegations/averments in the plaint, D1 the propositus of D4, D5 and D6 filed the written statement during his life time as under: (i) From out of the income derived from the ancestral properties, namely, the 'A' scheduled properties, the 'B' scheduled properties were purchased by Nachimuthu Gounder and hence, those properties are also the joint family properties. Further, from out of the joint family income only, the 'C' scheduled properties also were acquired. There was some family arrangement, under which D1 and D2 were cultivating different portions of the ancestral properties and earned profit and out of that the 'D' Scheduled properties were purchased. (ii) Owing to some misunderstanding, which erupted between Nachimuthu Gounder and D1, the former, on 19.2.1972, executed a settlement deed in favour of D3- Chandrasekaran-the son of D2, relating to Survey No.294-B, which forms part of the 'C' scheduled properties. Such a settlement deed is a sham and nominal one and not acted upon. Ultimately the said document could only be termed as a null and void one. (iii) The said Nachimuthu Gounder also executed a sale deed on 15.3.1996 in favour of the said D3, measuring an extent of 6 acres 52 cents in Survey Nos.120/2 and 140, which also forms part of the 'C' scheduled properties,but it was not acted upon. In fact, Nachimuthu Gounder had no right to execute such a sale deed in respect of the joint family property and there was no joint family necessity also to alienate the property. (iv) The plaintiffs are entitled to 1/12th share each and the first and second defendants are each entitled to 5/12th share in the 'A' and B' scheduled properties. 4. D2 filed the written statement seeking to allot 5/12th share in 'A' scheduled properties and 1/4th share in the 'B' scheduled properties. 5. The gist and kernal of the averments in the written statement of D3 could be portrayed and parodied thus: https://hcservices.ecourts.gov.in/hcservices/ The deceased Nachimuthu Gounder executed a registered sale deed dated 15.6.1973, conveying the items 1(a) and (b) of 'C' Scheduled properties in favour of D3; there at he has been in exclusive possession and enjoyment of the same. Under one other registered sale deed executed in favourh of D3, he is in possession and enjoyment of the second item of 'C' Scheduled properties as owner. The 3rd and 4th items of the 'C' scheduled properties were settled by Nachimuthu Gounder as per the Registered Settlement Deed dated 19.12.1972 in favour of D3, whereupon he has been in possession and enjoyment of those properties. Accordingly, he prayed for dismissal of the suit for partition in respect of the 'C' scheduled properties. 6. Defendants 4, 5 and 6, after they having been impleaded as LRs of deceased D1, filed their common written statement, contending that 'A', 'B' and 'C' scheduled properties in the plaint are all joint family properties and that already partition deed dated 30.11.1984 had emerged and hence, the present suit was not maintainable. 7. The defendants 4 to 6 also filed additional written statement adopting the written statement of D1, but however, contending that the entire suit properties should be divided into 12 equal shares and allot 5 shares in favour of D4, D5 and D6. 8. The plaintiff filed the reply statement also, reiterating their previous stand. 9. The trial Court framed the relevant issues. During trial on the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and Exs.A1 to A3 were marked. D2 examined himself as D.W.1 and D4 examined himself as D.W.2 and on defendants' side Exs.B1 to 57 were marked. 10. Ultimately, the trial Court passed a preliminary decree in its own way and it is extracted hereunder. @1/ jhth brhj;Jf;fspy; 1-3 g';F brhj;jpy; 2k; thjp kwlWk; 1. 2 gpupthjpfspd; jfg;gdhUk;. 1 tJ thjp kw;Wk; 3tJ gpujpthjpapd; ghl;ldhUkhd ehr;rpKj;J ft[z;luhy; 3tJ gpujpthjp bgahpy; vGjp itf;fg;gl;ljhd kw;Wk; fpuar; brhj;jpwlFk; kw;Wk; 3k; gpujpthjpapd; bgahpy; bgwg;gl;l brhj;Jf;fspd; bkhj;j kjpg;gPl;il fHpj;Jf; bfhz;L kPjk; cs;sjpy; thjpfSf;F 2-4 ghfj;jpw;Fk; cj;jutplg;gLfpwJ/ https://hcservices.ecourts.gov.in/hcservices/ 2/ 4. 5. 6 gpujpthjpfSf;F jhthr; brhj;Jf;fspy; 1/3 ghfj;jpw;Fk; 2. 3 gpujpthjpfSf;F 1-3 ghfj;jpw;Fk; nkYk; 3 tJ gpuj[pthjpfSf;F thjpfSf;fhfr; brhd;djhthr; brhj;jpd; 1-3 ghf brhj;jpy; ehr;rpKj;Jf; ft[z;luhy; Vw;gLj;jg;gl;l brhj;Jf;fspd; kjpg;gpw;Fk; nkYk; nkw;go 1-3 ghfj;jpy; kPjKs;sjpy; 1-4 ghfk; 4 Kjy; 6 gpujpthjpfSf;Fk; mjpy; kPjk; cs;s 1-4 ghfk; 2. 3 gpujpthjpfSf;F xJf;fpa[k; cj;jutplg;gLfpwJ/@ 11. Being aggrieved by and dis-satisfied with the judgment and decree of the Court below, D3 filed the appeal A.S.No.467 of 1998 on various grounds, the gist and kernal of them would run thus: (a) the judgement and decree of the lower Court in respect of 'C' scheduled properties is against law and weight of evidence; instead of dismissing the suit relating to the 'C' scheduled properties, the trial Court simply treated those properties also as joint family properties and included in the partition. (b) Even though the plaintiffs never claimed any right over the 'C' scheduled properties, the trial Court granted relief in respect of those properties also. Accordingly, D3 prayed for setting aside the decree and judgement and decree of the lower Court in respect of the 'C' schedule of the suit property. 12. Anim-adverting upon the judgement and decree of the trial Court, the defendants 4, 5 and 6 filed the appeal A.S.No.928 of 1997 on various grounds, the warp and woof of them could be set out thus:- (a) the trial Court was wrong in ordering partition of the 'D' scheduled properties also, ignoring the fact that 'D' scheduled properties were purchased by D1 and D2 from out of their own exertion and it should not have been treated as joint family properties of the entire family. (b) the trial Court was wrong in giving a finding that Nachimuthu Grounder intended to settle item 2 of 'C' scheduled properties in favour of D3 (c) the trial Court also failed to note that Ex.B2 was executed in favour of D3 only to teach a lesson to D1 and not intended it to be a sale. https://hcservices.ecourts.gov.in/hcservices/ (d) the trial Court was wrong in holding that Ex.B2 was valid in respect of Nachimuthu Gounder's share when the Court accepted the case of D3 to D7 that the sale was illegal and improper in respect of the joint family property. (e) the trial Court failed to note that consequent upon the partition deed dated 30.11.1984 (Ex.A47) there was a division of status; D1 was enjoying his share separately and earned income; from out of the said income, he purchased 'D' scheduled properties jointly with D1 and such 'D' scheduled properties should not have been treated as joint family properties. Accordingly D4, D5 and D6/the appellants A.S.928 of 1997 prayed for deleting the 'D' scheduled properties from the decree of the trial Court and consequently, prayed for setting aside the judgement and decree of the trial Court. 13. Heard both sides and perused the records, including the impugned judgment. 14. The points for consideration are: (i) Whether 'A', 'B', 'C' and 'D' scheduled properties of the plaint are all co-parcenary properties, liable for partition or not? (ii) Whether the plaintiffs are not having right to claim any share in the 'C' and 'D' scheduled properties of the plaint? (iii) Whether the sale deed-Ex.B2 and the settlement deed-Ex.B14 emerged in favour of D3 relating to certain items of 'C' scheduled properties are valid or not? (iv) Whether there is any infirmity in the judgement and decree of the trial Court? (v) What are the respective rights of the parties? 14. The parties are referred to here under, for convenience sake, according to their litigative status before the trial court. 15. Points (i) to (iii): These points are taken together for discussion as they are interconnected and inter- linked, inter-woven and entwined with each other. https://hcservices.ecourts.gov.in/hcservices/ 16. The warp and woof of the arguments of the learned Senior counsel for D4, D5 and D6/the appellants in A.S.NO.928 of 1997 would be that undoubtedly, the 'A' scheduled properties are the ancestral properties, the 'B' scheduled properties, even though purchased in the name of deceased Nachimuthy Gounder; nonetheless it is obvious that from out of the income derived from the 'A' scheduled properties only the 'B' Scheduled properties were purchased; the 'C' scheduled properties are also joint family properties of the family of Nachimuthu Gounder and he had no right to alienate by way of sale and settlement in favour of D3-his grand son; the 'D' scheduled properties were purchased jointly by D1 and D2 from out of the income derived from the properties, which were allotted to them as per the earlier partition and they cannot be treated as ancestral properties; the plaintiffs filed the plaint citing only the 'A' and 'B' scheduled properties and claimed partition; it is their consistent case even during trial that the alienations made by Nachimuthu Gounder in favour of D3 were valid; the plaintiffs did not claim any share in the 'C' scheduled properties; in view of the 'D' scheduled properties being the properties purchased by D1 and D2, from out of their own exertion the plaintiffs themselves have not chosen to pray for partition, in the plaint or at least by getting the plaint amended; the lower Court was not justified in ordering partition of all the suit properties; the decree passed by the lower Court is confusing and no head or tail could be made out of it. 17. The learned counsel for D3/appellant in A.S.No.467 of 1998 would submit that the alienations made by Nachimuthu Gounder in the form of sale and settlement are valid, as Nachimuthu Gounder had the right of alienation, which D4, D5 and D6 cannot challenge. 18. The nitty-gritty of the arguments of the learned counsel for the respondents/plaintiffs in both the appeals would be to the effect that all the suit properties are ancestral properties; even though the plaintiffs, at the first instance did not include the 'C' and 'D' scheduled properties in the plaint schedule, nonetheless at the instance of D4, D5 and D6 themselves, those properties were added, as it was they who pleaded that those properties also have to be partitioned. 19. The factual matrix, as found detailed and delineated, evinced and evidenced from the above, would necessitate this Court to analyse the status of the parties at the first instance. Unassailably and incontrovertibly, https://hcservices.ecourts.gov.in/hcservices/ Nachimuthu Gounder and his two sons, namely, D1 and D2 constituted the coparcenary and they had 1/3rd share each in the 'A' scheduled properties; even though the plaintiffs contended in the plaint that the 'B' Scheduled properties were acquired by Nachimuthu Grounder from out of his own earnings and exertion, they could not fortify their stand. Absolutely there is no speck or morsel, dot or miniscule of evidence to buttress the stand that the 'B' Scheduled properties are the self-acquired properties of the deceased Nachi Muchu Grounder. Hence, the finding of the trial Court that the 'B' Scheduled properties are also the coparcenary properties, warrants no interference. 20. The same logic applied for holding the 'B' Scheduled properties as the ancestral properties could rightly and legally logically and reasonably be applied to hold the 'C' Scheduled properties also as coparcenary properties, in view of the fact that items 1(a) and 1(b) of the 'C' scheduled properties were purchased by Nachimuthu Gounder vide sale deed- Ex.B1 dated 29.11.1949; item Nos.3 and 4 of the 'C' scheduled properties are admittedly the ancestral properties. However, relating to item No.2, there is some controversy in view of the fact that the said item was purchased as per Ex.B41 dated 7.7.1972, by citing D3-the then minor aged about 7 years, represented by Nachimuthu Gounder, as the purchaser. According to D4, D5 and D6-the then minor D3 had no financial wherewithal to purchase the said items by paying such a sum of Rs.21,000/- as sale consideration and it was the said Nachimuthu Gounder, who from out of the coparcenary funds purchased the said property in the name of D3 and consequently, the said property should be treated as the ancestral property. 21. I could see considerable force in the submission made by the learned Senior counsel for D4, D5 and D6 that the item.No.2 of the 'C' scheduled properties also should be treated as ancestral property and that too in the absence of any evidence in support of the contention of D3, that it was D3's exclusive property. Considering the evidence of D.W.1(D3)- Chandrasekaran as well as P.W.1, it is crystal clear that the 'C' scheduled properties are also the joint family properties. 22. The contention of D3 that as per Ex.B2-the sale deed dated 15.6.1973, the said Nachimuthu Gounder executed the sale deed in favour of D3 the then minor, citing D3's mother- Arutkaniammal as natural guardian, in selling the items 1(a) and 1(b) of the 'C' scheduled properties, is valid, cannot be countenanced as such, for the reason that a sum of Rs.40,000/- is referred to as the sale consideration, which was received by Nachimuthu Gounder from the minor Chandrasekaran, but https://hcservices.ecourts.gov.in/hcservices/ absolutely there is no shard or shred of evidence to indicate and evidence that such sale consideration was paid. The relationship between Nachimuthu Gounder and D3 is an admitted one. Palpably and pellucidly, it is therefore, clear that the said sale deed is nothing but a disguised donation executed by Nachimuthu Gounder in favour of D3-the minor son relating to the said ancestral property. 23. The factum of the Item Nos. 3 and 4 of the 'C' scheduled properties having been settled by Nachimuthu Gounder in favour of D3 as per Ex.B14-the settlement deed dated 19.12.1972, is being correctly floored and attacked, inveighed and impugned by D4, D5 and D6 on the ground that Nachimuthu Gounder had no right as per the Hindu Law to effect any settlement of donation with regard to the undivided coparcenary property. 24. It is a trite proposition in Hindu Law that a coparcener cannot donate or settle his undivided share in the suit property. In support of his contention, the learned Senior counsel for D4, D5 and D6 cited the following decisions: (I) AIR 1961 Madras 405-KULASEKARAPERUMAL VS. PATHAKUTTY THALEVANAR AND OTHERS, certain excerpts from it would run thus: "7. In view of the terms of Ex.I set out above, it is not possible to construe it as a gift deed pure and simple. A Hindu coparcener governed by the Mitakshara as administered in Madras may dispose of his undivided ancestral estate by contract and conveyance. He may mortgage, sell or otherwise alienate for value his undivided share of the joint family properties. The Judicial Committee in Suraj Bunsi Koer v. Sheo Proshad Singh 6 Ind App 88 (PC) stated the law thus at page 101, Since the decision, however, of the cases of Viraswami v. Aiyasami Gramani, 1 Mad H.C.R.471 of Peddamuthulaty v. Timma Reddi 2. Mannaru Naickan, 2.Mad H.C.R. 416 and Rayacharlu v. Venkataramaniah, 4 Mad H.C.R.60, it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt". https://hcservices.ecourts.gov.in/hcservices/ The equity in favour of the alienee for the value is perhaps the foundation for the power of alienation of a coparcener in respect of his undivided share. But it is equally well settled that gift or devise by a coparcener in a Mitakshara family of his undivided interest if wholly invalid, subject to certain exceptions. There is a long catena of decisions of this court commencing from Baba v. Timma, ILR 1 Mad 357 (FB) holding that a gift by a member of a joint family of his interest in the joint family property in favour of a stranger or a relative is invalid so as not to bind even the coparcener, who made the gift. (8) In Rottala Runganatham Chetti v. Ramaswami Chetti, ILR 27 Mad 162 it was held as follows: "It is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; and such an alienation, if made, is void in toto. This principle cannot be evaded by the undivided member professing to make an alienation for value when such valueh is manifestly inadequate and inequitable." Can Ex.I in the case be called a gift? Section 122 of the Transfer of Property Act defines gift as follows: "Gift is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person called the donor, to another called the donee, and accepted by or on behalf of the donee." A gift is essentially a gratuitous transfer. Complete absence of consideration marks the transfer as a gift and differentiates it from a grant. (9) In Halsbury's Laws of England, Vol.18 page 364, paragraph 692, it is observed as follows: "A gift inter vivos may be defined shortly as the transfer of any property from one person to another gratuitously while the donor is alive and not in expectation of death". In the footnote the following passage is quoted from Blackstones Commentaries: "Gift then, or grants, which are the eighth method of transferring personal property are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent(2 B.1 Co.440)." The word "consideration' used in S.122 of the Transfer of Property Act is used in the same sense as https://hcservices.ecourts.gov.in/hcservices/ the term is defined in the Indian Contract Act. The definition of consideration under the Indian Contract Act as embodied in S.2(d) is as follows: "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise." In English Law the terms "consideration' bears the meaning given to it in the classical judgement of Currie v. Mis, (1975) 10 Exch.153 at page 162, "A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered or undertaken by the other. ..........Detriment to the promisee is of the essence of the doctrine, and benefit to the promisor is when it exists, merely an accident (Holdsworth, History of English law, VIII page 11)". Though the Indian Contract Act does not in terms provide that consideration must be good or valuable to sustain a contract it has always been understood that consideration means something which is of some value in the eye of the law. It must be real and not illusory, whether adequate or not, adequacy being a matter purely for the contracting parties to decide and to agree upon. So long as the consideration is not unreal it is sufficient if it be of slight value only. (10) Chitty in his Contact, 21st Edn. Page 47, Vol.I, observes as follows: As regards the extent of trouble, loss or obligation which the promisee has taken upon himself at the promisor's request, we shall find, on considering the cases to be presently referred to, that it is immaterial that the detriment or charge thus assumed is, in fact, of the most trifling description, provided it be not utterly worthless in fact and in law; and that, unless it appears that the promisee incurred no detriment whatever, it need not be shown, in order to constitute a good consideration, that benefit resulted to the promisor from the performance by the promisee of the stipulated act. It has also been pointed out that the emphasis in consideration is not on the benefit of the promisor but the detriment to the promisee." https://hcservices.ecourts.gov.in/hcservices/ (II) 1969 THE MADRAS LAW JOURNAL REPORTS 597 – SRINIVASA PADAYACHI V. PARVATHIAMMAL AND OTHERS, relevant extracts from it would run thus: "Now at the time of execution of Exhibit A-1, the properties were joint family properties and the settlement was made by a coparcener. The other coparcener filed the suit for partition and secured his half share therein. In that suit, there was no plea as between the settlor and the present plaintiff, that the document was void, nor was there any finding in that suit given as to the true character of the settlement deed, whether it was a gift or conveyance for consideration. The plaintiff in that suit, the brother of the plaintiff's husband was given a half share in the properties, ignoring the alienation as not binding on his share, overruling the defence that it was not joint family property. But if in law the alienation was a gift, it is well settled that the same would not bind even the settlor and the absence of a finding in the earlier suit is neither here nor there. It was sufficient for the determination of that suit if it did not bind the plaintiff therein. The law is thus summed up in Mullah's