In the High Court of Judicature at Madras Dated: 15.10.2009 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.No.1236 of 1994 1.Cheladurai Nainar 2.Thirumavalavan 3.Sivasankaran .. Appellants/Defendants 1,4,&5 vs. 1.Govindasamy Nainar (deceased) 2.Pattusami 3.Rathanasami Padayachi 4.Madanavalli 5.Lalitha Devi 6.Ramya .. Respondents / Plaintiff and Defendants 2 and 3 (RR4 to 6 are brought on record as LRs of the deceased 1st respondent vide order of Court, dated 8.7.2008, made in C.M.P.No.4106/2001 in S.A.No.1236 of 1994. Prayer: The Second Appeal has been filed under Section 100 of C.P.C. against the judgment and decree, dated 9.8.1994, made in A.S.No.8 of 1991, on the file of the Sub Court, Chidambaram, against the judgment and decree, dated 11.9.1990, made in O.S.No.16 of 1985, on the file of the District Munsif Court, Chidambaram. For Appellants : Mr.J.R.K.Bavanandham For Respondents : Mr.N.Sankaravadivel for R4 to R6 For Respondents 2&3:No appearance J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 9.8.1994, made in A.S.No.8 of 1991, on the file of the Sub Court, Chidambaram, confirming the judgment and decree, dated 11.9.1990, made in O.S.No.16 of 1985, on the file of the District Munsif Court, Chidambaram. https://hcservices.ecourts.gov.in/hcservices/ 2. The suit, in O.S.No.16 of 1985, had been filed by the plaintiff for declaration of title and for recovery of possession. 3. The legal heirs of the plaintiff in the suit, namely, Govindasamy Nainar, are the respondents 4 to 6 herein. They had been brought on record, by an order of this Court, dated 8.7.2008, made in C.M.P.No.4106 of 2001 in S.A.No.1236 of 1994. The defendants 2 and 3 in the said suit are the second and the third respondents in the present second appeal. The appellants in the present second appeal were the defendants 1, 4 and 5 in the said suit. 4. The brief facts of the case, as stated by the plaintiff, are as follows: The plaintiff and the defendants 1 and 2 are brothers. Pazhamalai Nainar is their father. There was a partition of the common family properties, by a registered partition deed, dated 19.6.1964. The suit B schedule property is a part of the A schedule property. In the A schedule property, there are two houses. There are some trees in the C schedule property. During the partition, there were certain disputes between Pazhamalai Nainar and one Duraiswamy in respect of the A schedule property. 5. The plaintiff had paid the money for the purchase of the A schedule property. Since, the plaintiff was residing at Singapore, the property had been purchased in the name of his father. The A schedule property had not been mentioned in the partition deed, dated 19.6.1964, as it was purchased in the name of the plaintiff and it was under the proceedings of the Court. The C schedule property had been purchased by Pazhamalai Nainar from one Chinnathambi Mudaliar. Pazhamalai Nainar had decided to give the said property to the family of his daughter, for a certain amount. Therefore, the said property had not been included in the partition. Pazhamalai Nainar had wished that if the C schedule property was not transferred to his daughter, then, it should be taken by the plaintiff. Therefore, in the partition deed, it had been stated that the properties left out of the partition could be taken by the plaintiff. In such circumstances, the defendants 1 and 2 had written a release deed, dated 26.6.1964, releasing their rights in the said property. The said release deed had not been registered due to the fact that the properties in question had been allotted to the plaintiff by way of the partition deed. Therefore, the plaintiff is entitled to the said properties and that the defendants 1 and 2 did not have any right in them. 6. The plaintiff was working in Singapore till the year, 1981. The plaintiff had built both the houses in Door Nos.81 and 82, in the suit property. Since, the plaintiff was living in Singapore, he had permitted the defendants 1 and 2 to reside in the said houses. The first defendant was living in the house bearing Door No.82 and https://hcservices.ecourts.gov.in/hcservices/ the second defendant was living in the house bearing Door No.81. While so, in the year, 1978, the second defendant wanted to have the house, in which he was living, permanently. Therefore, in order to fulfill his wishes, he had given 19 cents of his property, in Puvizhandhi Nallur along with 21 1/2 of cents of house property. The plaintiff had agreed to the said arrangement. 7. On 31.8.1984, the plaintiff had written a settlement deed in favour of the second defendant, by which he had transferred the house in the A schedule property, in favour of the second defendant. The second defendant had given his property, as already agreed, to the plaintiff. A part of the A schedule property, on the eastern side, had been sold to one Kaliaperumal. The remaining portion had been given to the second defendant. As such, the plaintiff had title only in respect of 26 feet in a portion of the A schedule property. The said portion is the suit B schedule property. The plaintiff had permitted the defendants 1 and 2 to enjoy the possession of the trees in the C schedule property. Thus, according to the settlement deed, a portion of the A schedule property had been given to the second defendant. The suit B and C schedule properties continued to be with the plaintiff. After the plaintiff had returned from Singapore, he was living, permanently, in Puvizhandha Nallur Village. Later, he had asked the first defendant to vacate the B schedule property, as he wanted to construct a new building, therein. Even though the first defendant had accepted to vacate the property, initially, he had refused to do so thereafter, stating that he was prepared to give the house, allotted to him, to the plaintiff and instead, he had wanted to retain the B schedule property. The plaintiff had agreed to such arrangements. However, in the year, 1983, the plaintiff had found that the first defendant had sold the C schedule property to the third defendant claiming that the said property belongs to him. 8. In such circumstances, a notice had been issued to the first and the third defendants to hand over the possession of the C schedule property to the plaintiff. Only the first defendant had replied to the said notice. In the reply notice, it was stated that the first and the second defendants had never accepted the rights of the plaintiff in the said properties and that they were denying the claims of the plaintiff. In such circumstances, the plaintiff had filed the suit for declaration of title and for recovery of possession, in respect of the suit B and C schedule properties. 9. In the written statement filed on behalf of the defendants 1 and 4, the claims made by the plaintiff had been denied. On 19.8.1964, there was a partition of the family properties by way of a partition deed, as stated by the plaintiff. The plaintiff had got a substantial portion of the properties. He had not paid any money for the purchase of the properties, as claimed by https://hcservices.ecourts.gov.in/hcservices/ the plaintiff. If the plaintiff had given the money, then it should have been recorded in the partition deed. On 3.6.1981, Pazhamalai Nainar had purchased the suit property with the money of the first defendant. The suit C schedule property had been purchased by the first defendant in the name of his father. The first defendant had married his aunt's daughter, Seethalakshmi. The first defendant has been in enjoyment of the C suit schedule property for over 20 years. Thereafter, it was given by way of the settlement deed, to his son and it had been sold to the third defendant. The first and second defendants had not written any release deed, as claimed by the plaintiff. 10. The properties not included in the partition deed should be shared by the family members, who are entitled to it. The settlement in respect of the properties not included in the partition deed has been falsely entered by the plaintiff. From the year, 1975, the plaintiff has been living in Puvizhandha Nallur. He had entered into a second marriage. The house with Door Nos.81 and 82 had not been built by the plaintiff. The first defendant has been enjoying the suit properties from the year, 1961. 11. The eastern portion of the first item of the suit property had been sold to one Kaliaperumal. The northern portion, on the western side of the property, is in the possession of the second defendant. The southern portion is in the possession of the first defendant. Accordingly, the plaintiff had sold his portion of the property to Kaliaperumal, in order to build a house in his property. The second defendant had entered into a settlement with the plaintiff. In the said settlement, the rights of the first defendant has been accepted. In respect of the house in Door No.82, the first defendant has been paying the house tax and water tax, from the year, 1961. The first defendant had never agreed to vacate the house, in which he was living. The settlement deed, dated 5.5.1976, is true. The plaintiff had not impleaded his mother as a party to the suit. After the death of Pazhamalai Nainar, his wife, daughter and his sons are entitled to the suit properties. Since, the necessary parties have not been included in the suit, it is liable to be dismissed. Further, certain other properties have been wrongly excluded from the suit. Since, the suit had been filed beyond 12 years from the date of the partition, it is belated. Therefore, the suit is liable to be dismissed. 12. In the written statement filed by the third defendant, it has been stated that the suit filed by the plaintiff is false. The averments made by the plaintiff in the suit are false. The suit has been filed beyond the period of limitation. The suit C schedule https://hcservices.ecourts.gov.in/hcservices/ property had been purchased by the plaintiff's father, Pazhamalai Nainar and the first and second defendants. The C schedule property had been given to Pazhamalai Nainar's daughter, during her marriage. Since then, the property is in the enjoyment of Periya Aayaal. The patta is also in her name. She has also been paying the necessary taxes respect of the said property. After the marriage of Periya Aayaal's daughter, Seethalakshmi, the suit C schedule property had been given to her. Thereafter, she has been in enjoyment of the said property, without any hindrance. In the year, 1976, the C schedule property had been purchased by the third defendant. Since then, the third defendant has been in enjoyment of the said property. Therefore, the plaintiff has no right, whatsoever, in the said property. Since, the necessary parties had not been included in the suit and as it has been filed, belatedly, it is bad in law. 13. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: i) Whether the plaintiff has right in the suit B and C schedule properties? ii) Whether the settlement deed, dated 5.5.1976, is true? Whether it is valid in law? iii) Whether the suit is barred by limitation? iv) What reliefs the plaintiff is entitled to? 14. 22 Documents had been marked on behalf of the plaintiff, as Exhibits A.1 to A.22 and two witnesses had been examined in favour of the plaintiff. Three documents had been marked by the defendant and two witnesses were examined on their behalf. 15. With regard to the issue of limitation, the trial Court had also held that the defendants have not proved, by way of sufficient evidence, that the suit filed by the plaintiff, in O.S.No.16 of 1985, is barred by limitation. The trial Court had also found that the defendants 1 and 2 have been in good terms, as found from the various letters exchanged between the plaintiff and the said defendants. As such, the suit B schedule property had not been included in Exhibit A.1, dated 19.6.1964. The defendant had been living therein with the permission of the plaintiff. The first defendant has not been in a position to prove by sufficient evidence that there had been an oral partition in the year, 1976. 16. The trial Court had held that the Exhibits marked on behalf of the plaintiff had shown that the plaintiff was having rights in the B schedule property. Accordingly, the trial Court had held that the plaintiff was entitled to his rights in suit B and C schedule properties and that the document, dated 5.5.1976, said to be a settlement deed, cannot be held to be valid. https://hcservices.ecourts.gov.in/hcservices/ 17. The trial Court had held that the Exhibit A.7, dated 5.5.1976, could have been a created document on the instructions of the first and the second defendants. The defendant had not been in a position to prove that the C schedule property had been given to their sister. Neither the tax receipts, nor the patta said to be in her name had been filed before the Court. In such circumstances, the trial Court had decreed the suit in favour of the plaintiff. 18. Aggrieved by the said judgment and decree of the trial Court, dated 11.9.1990, made in O.S.No.16 of 1985, the defendants in the suit had filed a first appeal on the file of the Sub Court, Chidambaram, in A.S.No.8 of 1991. The first appellate Court had framed the following points for consideration: "1. Whether the Interlocutory application, in I.A.No.216 of 1993, is to be allowed? 2. Whether the Interlocutory application in I.A.No.117 of 1994, is to be allowed? 3. Whether the first respondent/plaintiff has any cause of action in respect of the suit properties? 5. What reliefs the appellants are entitled to?" 19. The first Appellate Court, while confirming the judgment and decree of the trial Court had held that the respondents had the necessary cause of action to initiate the suit. It has also been held that the suit items were joint family properties and that each of the three brothers were entitled to a share in the said properties. 20. With regard to the first point arising for consideration, as to whether I.A.No.216 of 1993 is to be allowed, the first Appellate Court had come to the conclusion that the said interlocutory application, in I.A.No.216 of 1993, is to be allowed. The first Appellate Court had found that the claims made by the appellants, in respect of the suit properties, are based on the oral partition said to have been made in the year, 1966. whereas the first appellant's claim, with regard to the suit properties is based on the fact that the suit properties had been purchased out of the funds sent by him from Singapore, even though the properties had been purchased in the name of their father, Pazhamalai Nainar. Therefore, the first Appellate Court had found that in order to appreciate the rival claim of the parties concerned it would be necessary to mark Exhibits B-37 to B-55. 21. With regard to the point for consideration as to whether the interlocutory application, in I.A.No.917 of 1994, is to be allowed, the first Appellate Court had held that the said interim application cannot be allowed, since the alleged release deed, dated 20.6.1964, said to have been written by Chelladurai Nainar and https://hcservices.ecourts.gov.in/hcservices/ Pattusami, in favour of Govindasamy, is not a registered document. The first Appellate Court had found that, though the said document had been filed before the trial Court, it had not been marked. Therefore, the first Appellate Court had rejected the request made in the application for marking the said document, as an exhibit. 22. With regard to the intention expressed in the partition deed, dated 19.6.1964, marked as Ex.A-1 the first Appellate Court has held that the meaning of the words used therein, if it is not clear, should be based on various other surrounding circumstances. The first Appellate Court had also found that there was no dispute about the existence of the partition deed, dated 19.6.1964. Therefore, the suit property, shown in A and C schedules had not been included in the partition deed, marked as Ex.A-1, since there was a Court case pending before the Cuddalore Court, with regard to the property shown in the suit A schedule. 23. With regard to the C schedule property it was accepted that the aunt of the appellants and the first respondent would take it for a certain amount of money. Further, the appellants were not in a position to prove that a partition had taken place in the month of April, 1966, with regard to A schedule property. Therefore, it was concluded that the suit A and C schedule properties belonged to Govindasamy Nainar, the first respondent in the first appeal, as per the partition deed, dated 19.6.1964, marked as Ex.A-1. The first Appellate Court had found that Chelladurai Nainar had no right to execute the settlement deed, marked as Ex.B-33 and therefore, the second and the third appellants could not get any right, as per the said settlement deed. In such circumstances, the first Appellate Court had confirmed the judgment and decree of the trial Court, made in O.S.No.16 of 1985. 24. Aggrieved by the concurrent findings of the Courts below, the appellants in the first appeal had preferred the present second appeal before this Court, in S.A.No.1236 of 1994, based on the following substantial questions of law. "1) Whether provisions of benami transactions (prohibition) Act 45 of 1988 apply to the facts of the case. 2) Whether in its sweep 54 envisages passed Benami transactions also inits retro activity? 3) Whether where the law nullifies the defences available to thereal owner in recovering the Benami property from the Benamidar, the law must apply irrespective of the time of the Benami transactions. 4) Whether the court below can rely upon the recital in Ex.a1 partition deed as true if the genuine doubt by reason of the circumstances and evidence letting in the case arises which would prompt the Court to require a much better standard of proof of the recitals without any further expectation of the same? https://hcservices.ecourts.gov.in/hcservices/ 5) Whether if there is an ambiguity in the language employed in Ex.A1, is it permissible to look into surrounding circumstances to determine what was intended and that the document has to be constructed on its own terms or not? 6) Whether the first respondent estopped from claiming declaratory title to the suit property? 7) Whether the settlement deed, dated 5.5.76, was true and genuine and binding on the first respondent? 8) Whether the suit was barred by limitation?" 25. The learned counsel for the appellants had submitted that the Courts below had erred in coming to the conclusion that the first respondent has title to B and C schedule properties and that he is entitled to recover possession of the same from the appellants. The courts below had also erred in holding that the suit properties were purchased by the first respondent, with his own funds, in the name of his father, Pazhamalai Nainar. The Courts below ought to have seen that a `benami' transaction cannot be held to be valid. The Courts below ought not to have held that the first respondent had established title to the suit properties stating that there was a recital in the partition deed, marked as Ex.A-1, that the first respondent would take all the other properties covered or mentioned in the partition deed. Even though the parties to the partition deed had known about the existence of the suit properties, at the time of the execution of the said deed, there could have been no good reason for omitting the said properties from the partition deed. Further, there were certain interpolations in the recitals in the partition deed, marked as Ex.A-1. The Courts below ought to have seen that the first appellant had purchased the suit properties from his own funds and therefore, the said properties had not been included in the partition. Even otherwise, since the suit properties were joint family properties they should have been divided equally amongst the brothers who are entitled to a share in the said properties. 26. The learned counsel had further stated that the first appellant had settled the B schedule item of the suit properties in favour his two sons, namely, the second and the third appellants, under Ex.B-33. The said fact had been admitted by the first respondent, by way of Ex.A-7. The Courts below ought to have seen that the rectification deed, marked as Ex.A-8, was a created document, as an after thought. The evidence of D.W.2, regarding Ex.A-7, ought to have been accepted by the Courts below, as sufficient evidence. The Courts below had also erred in holding that the C schedule property belongs to the first respondent, in view of the letters, marked as Exs.A-12 and A-21. In fact, the C schedule property should belong to the second respondent, as the owner of the https://hcservices.ecourts.gov.in/hcservices/ said property. The Courts below had also erred in holding that the first appellant should have objected to the recitals in Ex.A-3, as it was not within his knowledge. 27. In view of the submissions made by the learned counsels appearing on behalf of the appellants, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the appellants have not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. Sufficient evidence has been shown to substantiate the claims made by the first respondent in the present second appeal. Both the Courts below have concurrently found that there is sufficient evidence to prove that the properties in question had been purchased with the funds of the first respondent, in the name of his father, Pazhamalai Nainar. It had also been found that the suit properties had not been shown in the partition deed, as they had been purchased by the first respondent. Since, the suit properties concerned hat not been marked in the partition deed, the Courts below had held that they belong to the first respondent, in accordance with the recitals found in the said partition deed. It had also been held that the appellants had not proved the existence of the oral partition, said to have been made in the year, 1966. Further, it had also been held that Chelladurai Nainar did not have the right to execute the settlement deed, marked as Ex.B-33. Further, the appellants have not shown that substantial questions of law have arisen, for this Court to entertain the present second appeal. In such circumstances, the judgment and decree of the Courts below are confirmed. Accordingly, the second appeal stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. To 1) The Sub Court, Chidambaram. 2) The District Munsif Court, Chidambaram. 3. The Record Keeper, VR Section, High Court, Madras.104 1 cc to M/s. P.B. Ramanujam, SR. 54261 1 cc to Mr.N. Sankaravadivel, SR. 54432 S.A.No.1236 of 1994 KSK (CO) kk 25/1 https://hcservices.ecourts.gov.in/hcservices/