IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.08.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1561 and 1562 of 1995 and C.M.P.Nos.121 and 122 of 2009 and M.P.No.1 of 2009 Dorairaj ..Appellant in both the second appeals vs. 1. Doraisamy .. 1 st respondent in S.A.No.1561 of 1995 and 12th respondent in S.A.No.1562 of 1995 2. Dhiraviam Respondents 2 to 12 in 3. Pavunammal S.A.No.1561 of 1995 & 4. Rajamani Respondents 1 to 11 in 5. Sakthi S.A.No.1562 of 1995 6. Mookayee 7. Anna Edward Raja 8. Indira Gandhi 9. Kalaignar 10.Jayaprakash 11.Atchaya Gopal 12. Tamizhkudimagan (RR8 to 12 and RR7 to 11 are declared as major and the guardian Rajathi discharged from guardianship vide order of Court dated 05.02.2008 made in CMP.1761 in S.A.1561 and CMP.1767/97 in S.A. 1562/95) These two second appeals are filed against the common judgement and decrees dated 26.09.1995 passed by the learned I Additional District Judge, Tiruchirapalli in A.S.No.160 of 1994 and A.S.No.161 https://hcservices.ecourts.gov.in/hcservices/ of 1994 in reversing the judgement and decree dated 29.04.1992 passed by the learned Subordinate Judge, Ariyalur in O.S.No.99 of 1987. For Appellant : Mr.T.R.Mani in both the second Senior counsel assisted appeals by Mr.Gowtham for Mr.T.R.Rajaraman For Respondents : Mr.R.Kannan for R1 in in both the second S.A.No.1561/1995 & appeals R13 in S.A.No.1562/95 Mr.M.S.Krishnan Senior counsel for Mrs.Mythili Suresh for RR6 to 8 in S.A.No.1561/1995 & for R6 in S.A.No.1562/1995 Mr.S.V.Jayaraman Senior counsel for proposed respondents in both the S.As. Mr.S.Silambanan Senior counsel for M/s. C.Uma for RR2 to 5 in S.A.No.1561 of 1995 and RR1 to 4 in S.A.No.1562 of 1995 : M/s. Sarvabhauman Associates for R7 to R12 in S.A.1561/95 for R5 to 12 in S.A.1562/95 COMMON JUDGMENT These two second appeals have been filed by the second defendant animadverting upon the common judgement and decrees dated 26.09.1995 passed by the learned I Additional District Judge, Tiruchirapalli in A.S.No.160 of 1994 and A.S.No.161 of 1994 in modifying the judgement and decree dated 29.04.1992 passed by the learned Subordinate Judge, Ariyalur in O.S.No.99 of 1987. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Broadly but briefly, narratively but precisely, the plaintiff's case as stood exposited from the plaint and other records could be epitomised thus: https://hcservices.ecourts.gov.in/hcservices/ (i) One Pallikoodathan had three sons, viz., Chidambaram, Sengan (D1) and Natesan. Sengan (D1) had four children, viz., three sons and one daughter viz., deceased Rajakannu, Duraisamy the plaintiff herein, Durairaj (D2) and Mookayee (D8). D9 to D14 are the children of D2 and Rajathi; Deceased Rajakannu and his wife Papathi (D3) gave birth to D4 to D7; the relationship among the parties is an admitted one. (ii) During the pendency of the suit D1 Sengan died. Whereupon his daughter D8 Mookayee was also added and his other legal representatives were already on record. The suit properties comprised of 79 items described in the schedule to the plaint constituted the joint family property of D1 Sengan and his three sons, viz., Duraisamy, the plaintiff, D2 Durairaj and deceased Rajakannu and they were in possession and enjoyment of the suit properties jointly. As such, the four co-parceners were entitled to 1/4th share each in the suit properties. (iii) D1 and D2 colluded together and created some void documents in respect of the suit properties so as to deprive the plaintiff of his legitimate right over those properties; (iv) The plaintiff's demand for amicable partition ended in a fiasco. The claim of defendants 9 to 14 as though they are beneficiaries under the alleged Will executed by the deceased D1 during the pendency of the suit is nothing but a false one and the said Will is a forged document. (v) Accordingly, he filed the suit for partition, for dividing the suit properties. 3. Denying and refuting, challenging and impugning the averments/allegations in the plaint, D1 filed the written statement, the nitty gritty, the gist and kernel of them would run thus: (i) The suit properties are not joint family properties. The Item Nos.14 and 15 of the suit properties alone are the ancestral properties; as they were purchased by Pallikoodathan, the father of D1. As such, D1's father Pallikoodathan purchased an extent of 7 acres and 34 cents from out of his own earnings and those lands were always in a water-logged condition. (ii) The said Pallikoodathan died leaving behind his three sons, viz.,Chidambaram, Sengan (D1) and Natesan. As such, Sengan (D1) was entitled to an extent of 2 acres 45 https://hcservices.ecourts.gov.in/hcservices/ cents only in the said land, which belonged to Pallikoodathan. No crops could be cultivated in that land and it was not an income yielding property. (iii) The suit items 15, 27, 29, 30, 32, 44, 67 and 69 were purchased by D2 for and on behalf of his children from the minor children of the deceased Chidambaram represented by D1, who is the guardian for the Chidambaram's minor children. (iv) The rest of the suit properties belonged to D1 as he purchased it from out of his own income and they are not the joint family properties. Without any rhyme or reason, the plaintiff' in the plaint simply described all the suit properties as joint family properties. (v) D1 sold to D2, the suit items, 1 to 7, 9 to 13, 16, 18, 19, 20 to 25, 31, 33 to 41, 52, 54 to 60, 63 and other items under three sale deeds so as to meet his medical expenses and for his own future maintenance. (vi) Accordingly, he prayed for the dismissal of the suit. 4. D2 filed the written statement reiterating the contentions as put forth by D1 virtually. Over and above that he would also contend as under: (i) D2 also discharged D1's debts due payable by D1 in favour of Lakshmanasamy Reddiar of Perambalur and Rice Mill Ponnusamy of Perambalur. D2 also discharged the sundry hand loan debts due payable by D1 in favour of various debtors to the tune of Rs.10,000/-. D2 is a contractor and earned money and with that he purchased various items of the suit properties. (ii) Accordingly, he prayed for the dismissal of the suit. 5. The gist and kernel of the written statement filed by D3 to D7 would run thus: D3 to D7 are the legal heirs of deceased Rajakannu, the one of the sons of D1 and as such, they claim 1/3 rd share in the suit properties. Pithily and precisely stating they sail with the plaintiff in this litigation. 6. A summation and summarisation of the written statement filed by the defendants 9 to 14 would run thus: https://hcservices.ecourts.gov.in/hcservices/ (i) D9 to D14, being the children of D2 would reiterate the case as put forth by D2 and pray for the dismissal of the suit by also contending that D1 during his life time executed an unregistered Will dated 24.11.1989 bequeathing his properties in their favour. (ii) Accordingly, they prayed for the dismissal of the suit. 7. The reply statement and the additional reply statement filed by the plaintiff would be by way of denying and refuting, remonstrating and challenging the averments/allegations in the written statements filed by D1, D2 and D9 to D14. 8. The trial court framed the issues. During trial, the plaintiff examined himself as P.W1 and no documentary evidence was adduced on his side. On the defendants' side, D.Ws.1 to 4 were examined and Exs.B1 to B206 were marked. Ultimately the trial Court decreed the suit allotting ¼ th share in favour of the plaintiff in all the suit properties excluding the following items viz., 15, 27, 28, 29, 30, 32, 44, 67, 69, 26, 31, 1 to 7, 9 to 13, 18, 19, 20, 22 to 25, 31, 33, 40, 36, 39, 41, 52, 55, 57, 60 and 63 respectively. 9. Being disconcerted and dissatisfied with the judgment of the trial court, the plaintiff filed appeal in A.S.No.160 of 1994 before the I Additional District Judge, Tiruchirapalli and D3 to D7 preferred appeal in A.S.No.161 of 1994 before the same Court and both the appeals were heard together and the Appellate Court modified the judgment of the trial court and granted the reliefs holding that the suit properties are all joint family properties and that the plaintiff is entitled to 5/16th share and the defendants 3 to 7 are entitled to another 5/16th share in all the suit properties. 10. Animadverting upon the common judgment passed by the first Appellate Court, these two second appeals have been focussed by the second defendant almost on similar grounds, the gist and kernel of them would run thus: (a) The first Appellate Court committed error in holding that the suit properties are the joint family properties. (b) Item Nos.14 and 15 are the ancestral properties and other items of the suit properties are not at all to be treated as joint family properties. (c) The first Appellate Court failed to take into consideration that even those items 14 and 15 have been in water logged condition throughout the year fetching no income. https://hcservices.ecourts.gov.in/hcservices/ (d) The items 15, 27, 28, 30, 22, 44, 67 and 69 belonged to deceased Chidambaram and in connection with the discharge of the debts incurred by Chidambaram, those properties were sold by D1 as guardian of the children of deceased Chidambaram in favour of the children of D2 represented by D2 after obtaining court order. (e) In the absence of evidence, the first Appellate Court should not have granted the reliefs prayed by the plaintiff and the defendants, viz., D3 to D7. (f) No documentary evidence at all were produced by the plaintiff and based on the ipse dixit of the plaintiff, the first Appellate Court decreed the suit and allowed both the appeals. (g) Without considering the evidence on the defendants' side, including the voluminous records, the first Appellate Court wrongly decided the appeals. (h) The first defendant had independent contract business and pawn broker business; but that was not considered by the lower court. There was no joint status at all among Sengan and his three sons and they were living separately having separate income. But those facts have not been considered by the first Appellate Court. (g) The factum of D1 having been taking treatment in several hospitals for which D2 incurred expenses were not considered by the first Appellate Court. (h) The onus of proof was on the plaintiff to prove his case that the properties are joint family properties; but he failed to do so; (i) Even though the first Appellate Court ignoring the law relating to the burden of proof, granted the prayer of the plaintiff, the factum of plaintiff, being in possession of item Nos.14 and 15 by grazing cattle there, was not considered by the first Appellate Court. (j) The original plaint was a cryptic one and did not contain any particulars. (k) From item Nos.14 and 15, no income was derived. Under such circumstances, the remaining items could not have been purchased from out of the income derived from the ancestral property and as such, the properties should not have been treated as joint family properties by the first Appellate Court. https://hcservices.ecourts.gov.in/hcservices/ (j) Accordingly, he prayed for setting aside the judgment and decree of the first Appellate Court. 11. My learned Predecessor at the time of admitting both the second appeals, framed the following substantial question of law: "Whether the lower Appellate Court is correct in passing a decree for partition in the absence of any evidence, both oral and documentary to establish that the family was living jointly and the acquisition was by joint efforts?" 12. At the time of hearing, I felt that the substantial questions of law as framed supra is not sufficient and the substantial questions of law have to be formulated as under, which would infuse in them the aforesaid earlier framed substantial question of law also. "1. Whether the first appellate Court was justified in holding that all the suit properties are joint family properties even though there are various documents marked on the defendants' side pointing out that the individual members of the family concerned have purchased various items of the suit properties and that too in the wake of alleged absence of income bearing joint family nucleus? 2. Whether the first appellate Court properly applied the law relating to burden of proof, in the alleged absence of any evidence to prove that there were sufficient joint family income to purchase the properties in the name of D1? 3. Whether the properties purchased by Sengan-the kartha of the Hindu joint family should be treated as the joint family properties and whether the alienations made by the said kartha and the purchase of the other properties from out of such sale proceeds would constitute joint family properties? 4. Whether the first appellate Court was justified in disbelieving the Will, in the wake of alleged clinching evidence placed on the side of the propounders of the Will? 5. Whether there is any perversity or non-application of law in interpreting the oral and documentary evidence in considering the Will as well as the other Exhibits? 6. Whether the property acquired under Ex.B2 was unjustifiably treated as joint family property by the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court, in the absence of any clinching evidence and in ignoring the relevant court order?" 13. Both sides took notice of those additional formulation of substantial questions of law and submitted their respective arguments etc. 14. During the pendency of the second appeals, C.M.P.Nos.121 and 122 of 2009 were filed for impleading as many as three persons, viz., Suresh Kumar, R.Mangayarkarasi and R.Alagi as proposed respondents 13 to 15 in the respective two second appeals on almost one and the same following grounds: (i) The petitioners in those C.M.Ps.are the legal heirs of deceased Rajakannu, one of the sons of deceased D1. Deceased Rajakannu died on 29.06.1989 leaving behind the following persons: 1. Mrs.Dhiraviyam 2. Mrs.Pavunammal 3. Mrs.Rajamani 4. Mrs.Sakthi 5. R.SureshKumar 6. Mangayarkarasi 7. Alagi (ii) As per Section 16 of the Hindu Marriage Act, they are entitled to shares in the suit properties and they have to be impleaded also as parties. (iii) In fact, in the land acquisition proceedings, the petitioners in these CMPs were recognised as the legal heirs of Rajakannu and they were given compensation. 15. Per contra, the respondents 3 to 6 filed the counter, the sum and substance of them would run thus: (i) The petitioners in those two CMPs are not at all necessary parties to the second appeal; Papathi D3 in the suit was the only wife of Rajakannu and Rajakannu did not marry Nagammal for the second time and the petitioners are not his children. (ii) Accordingly, the petitioners in the CMPs are not entitled to be impleaded as legal heirs and in fact the said Nagammal married one Muthusamy and gave birth to five children. Absolutely, there is no rhyme or reason for getting themselves impleaded. By misrepresentation, the petitioners in these CMPs got some signatures in blank papers from the respondents and the reference to the land https://hcservices.ecourts.gov.in/hcservices/ acquisition proceedings would not be tenable for the reason that the petitioners played fraud and coercion on the defendants earlier. 16. The point for consideration in these two miscellaneous petitions is as to whether the petitioners are necessary parties to the second appeals at this stage? 17. At this juncture, it is also just and necessary to refer to one other M.P.No.1 of 2009, the delay petition filed by respondents 9 to 14 for getting the delay of 4294 days condoned for filing cross appeal. 18. Tersely and briefly, the relevant averments, as found exemplified in the affidavit of Achaya Gopal P4 would run thus: a) Deceased Sengan (D1) during his life time and that too, during the pendency of the original suit executed the Will Ex.B200 in favour of all the petitioners herein, viz., the defendants 10 to 14, who were minors initially and now they attained majority. Thereafter, they had discussion with their Advocate and understood that they could prefer cross appeal. Hence, the delay occasioned. b) However, the respondent/plaintiff resisted the application. 19. Relating to M.P.No.1 of 2009 for condoning the delay, the points for consideration are as to:- (i) Whether there is any justification in condoning the delay of 4294 days in filing the cross appeal ? and (ii) Whether the petitioners are having any right to file cross second appeal at all? As such, the substantial questions of law formulated by this Court and the two points for consideration framed under the C.M.P.Nos.121 and 122 of 2009 referred to supra should be dealt with. 20. I would prefer to take up the points for consideration framed under M.P.No.1 of 2009 at the first instance. In this connection I would like to recapitulate and recollect the facts in a "resume" thus: (i) The relationship among the parties is an admitted one. However, the relationship of the petitioners in C.M.P.Nos.121 and 122 of 2009 as the legal heirs of Rajakannu alone has been disputed by D3 to D7, as they would https://hcservices.ecourts.gov.in/hcservices/ claim that they are the only legal heirs of deceased Rajakannu. (ii) Duraisamy, being one of the sons of Sengan (D1), filed the suit as against his father (D1), D2 (his brother) and the other defendants 3 to 7 (the legal heirs of deceased Raja Kannu, one of the sons of D1), D8, the daughter of D1 and D9 to D14 (the sons of D2). From the above narration of facts, it is crystal clear that Sengan (D1) had three sons, viz., Duraisamy, the plaintiff, Durairaj, D2 the deceased Rajakannu as his children. D3 Papathi, is indisputably and indubitably, incontrovertibly and unassailably, the legitimate wife of deceased Rajakannu and D4, D5, D6 and D7 are the children of deceased Rajakannu and Papathi. D8 is the daughter of D1. D9 to D14 are the children of D2. (iii) The petitioners in C.M.P.Nos.121 and 122 of 2009 are claiming to be the legal heirs of deceased Rajakannu and his one other wife Nagammal. As such, they even place reliance on Section 16 of the Hindu marriage Act so as to claim right as the illegitimate children of Rajakannu. 21. It is therefore crystal clear that the petitioners in C.M.P.Nos.121 and 122 of 2009 have to prove their relationship with Raja Kannu and their right to claim share in the property or share of Rajakannu. It is ex facie and prima facie clear from the bare perusal of the records that the defendants 3 to 7 are fighting this litigative battle for getting the share of Rajakannu and there is no collusion between the parties to the main lis. In fact, the plaintiff has initiated the litigation pointing out that along with the plaintiff, D2 Durairaj and the legal representatives of deceased Rajakannu representing the share of Raja Kannu are entitled to equal shares. It was only D1 and D2, who denied such claim by the plaintiff and the legal heirs of Rajakannu and the perusal of the judgment of the courts below would demonstrate and display that there is absolutely no iota or shred, shard or miniscule, scintilla or molecular extent of evidence to evince and evidence that there was collusion among the parties. In such a case, the petitioners who claim to be the children of Nagammal and that too, as illegitimate children of Rajakannu cannot seek for getting themselves impleaded at the second appellate stage and set the clock back. 22. Mr.T.R.Mani, the learned senior counsel appearing for D2 would advance and canvass his argument to the effect that the petitioners in C.M.P.Nos.121 and 122 of 2009 are at liberty to file a separate suit, if they are so advised, as against D3 to D7 relating to their share in the alleged share of Rajakannu, if at all one is allotted to them in these present proceedings. He would also clearly https://hcservices.ecourts.gov.in/hcservices/ highlight that if those petitioners are allowed to get themselves impleaded in the second appeal, naturally, they have to be given opportunity to file the written statement and consequently additional issued have to be framed and opportunity to adduce further evidence would also arise. Certainly, that would lead to the rigmarole of conducting once again a trial afresh, which is totally not contemplated in law. 23. I would like to agree with the arguments advanced by the learned senior counsel for D2, in this regard. 24. The analysis of the records would disclose and demonstrate that, there is no collusion in this case, wherefore the petitioners cannot contend that in a partition suit all the persons claiming to be entitled to shares under a deceased sharer should necessarily be added as parties as otherwise, the suit would be bad for non-joinder of necessary parties. 25. I am fully aware of the legal proposition that normally in a partition suit all the sharers should be added as parties. But, it is also a well recognised common or garden principle of law that in a partition suit, if some of the legal heirs of a deceased sharer is left out but the said sharers' rights are protected by some of his other legal heirs then the suit is not nbad for non-joinder of necessary parties. It is nothing but an internecine dispute between the two groups claiming under Rajakannu for which the entire process in these proceedings, which reached it finality, cannot be destabilised or made to take a retrograde step. 26. The suit was filed in the year 1987 and it is quite obvious that a period of 22 years has elapsed and now only they have chosen to file this application for getting themselves impleaded. Even their averments in the affidavit accompanying the impleading petition would demonstrate and display that they should have and must have known about the litigation, even at the time of the alleged land acquisition proceedings etc, with which, we are not concerned now. 27. The learned Senior counsel for the petitioners in C.M.Ps. would cite the decision of this Court reported in AIR 1997 MADRAS 226 – SHANMUGHAM AND OTHERS VS. SARASWATHI AND OTHERS – Certain excerpts from it would run thus: "6. ........................ Hence, the conclusion of the lower appellate Court that items 1 to 37 among the suit properties which are dealt with in paragraph 5 of the Will belonged to the plaintiffs inasmuch as they are the only heirs of Saravanan the son of Muruga Pandaram through Nagarammal is correct. It should be mentioned here that teh said items were allotted to the share of the said Saravanan in a suit for partition filed by him along with Chinnathambi, who died unmarried later, that is O.S.No.46 https://hcservices.ecourts.gov.in/hcservices/ of 1933 on the file of Sub Court,Cuddalore against Palani and Singaravelu, the sons of Pachaiammal. As there is no other heir to Saravanan, the plaintiffs who are his daughters are entitled to the items allotted to Saravanan's share. On his death, the plaintiffs being the vested remainder holders are entitled to get those properties. Hence, the decree passed by the lower appellate Court as regards items 1 to 37 is correct. 7. With reference to items 38 to 44 they are properties purchased by Saravanan in Court auction in execution of a part of the decree passed in his favour in O.S.No.43 of 1933 for mesne profits as against Palani and Singaravelu. It cannot be disputed that what he purchased in court auction was the liefe estate of Palani and Singaravelu and both them being dead before this suit, the vested remainder in those properties would naturally go only to their heirs, that is, defendants 1 to 3 and others, if any. The plaintiffs cannot claim any interest in those items as the interest purchased in Court auction was only a life estate of Palani and Singaravelu. Both the Courts have rightly negatived the claim of the plaintiffs with regard to those items. Even with regard to those