IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.971 of 1992 1. Thambi alias Giri 2. Ravichandran .. Appellants/Plaintiffs Vs. 1. V.M.Duraisamy 2. V.M.Marudhachalam 3. Devanna Gounder (died) 4. N.Easwaran 5. Karuppathal 6. D.Palanisamy 7. D.Chinnasamy (died) 8. Palaniammal alias Mani 9. Saraswathi 10.Kavitha 11.Arjunan .. Respondents/Defendants R4 impleaded as per order of this Court dated 07.04.2004 made in C.M.P.No.8067/2004 RR5 to 8 brought on record as L.Rs of the deceased third respondent vide order of Court dated 17.04.2007 made in C.M.P.Nos. 10535 to 10537/2006 RR9 to 11 brought on record as Lrs of the deceased 7th respondent vide order of Court dated 26.02.2008 made in C.M.P.No.1772/2007 Appeal filed as against the judgment and decree dated 10.12.1991 passed in O.S.No.619 of 1986 on the file of the Principal Subordinate Judge, Coimbatore. For Appellants : Mr.K.M.Santhanagopalan For respondents: Mr.V.Manohar for RR1,2,5, 6 and 9 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT Animadverting upon the dismissal of the suit for partition and for cancellation of sale deeds vide judgment dated 10.12.1991 passed by the learned Principal Subordinate Judge, Coimbatore, this appeal is focussed. 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 case of the plaintiff as stood exposited from the amended plaint could be portrayed thus: The deceased Sundara Gounder during his life time, obtained "A" and "B" scheduled properties allotted in his favour in the partition, which emerged between his co-sharers and himself on 05.12.1965. The plaintiffs 1 and 2 are the sons of the said Sundara Gounder and obviously Sundara Gounder and the plaintiffs constituted a Hindu Joint Family and the said properties happened to be the joint family properties. Sundara Gounder was addicted to intoxicating drinks and he lead an immoral life. He incurred debts for his immoral and illegal purposes without caring for the family welfare. Taking undue advantage of Sundara Gounder immoral habits, fictitious pro-notes were got executed from him by some persons and some of them also managed to obtain decrees as against Sundara Gounder based on such false promissory notes. Since those debts were incurred by Sundara Gounder only to meet his immoral purposes and not for family necessity, those debts would not bind the plaintiffs. Only the debts incurred by Palani Gounder, the grand father of the plaintiffs, would be binding on the plaintiffs. The said Sundara Gounder and his mother Janaki Ammal who was given life estate in a portion of the said Joint family properties executed the sale deed in favour of defendants 1 and 2, in respect of "A" Scheduled property. The first plaintiff was a minor at the time of such execution of the sale deed but he was cited therein as a eo-nomine party and the second plaintiff was in the womb of his mother Rajammal. There had been no necessity at all for executing such a sale deed in respect of the "A" scheduled properties of the plaint and the sale proceeds were not utilised for the benefit of the Joint family. The said Sundara Gounder executed another sale deed in respect of the "B" scheduled house property on 20.10.1975 in favour of D3, wherein both the plaintiffs have been cited as eo- nomine parties and that sale was effected not for any family necessity or for the benefit of the plaintiffs and the sale proceeds were not utilised for the welfare of the minors or for the joint family. Sundara Gounder and the plaintiffs 1 and 2 had 1/3rd share each in the suit properties. Consequently, the plaintiffs issued their lawyer's notices to the https://hcservices.ecourts.gov.in/hcservices/ defendants, which evoked replies from them with false allegations. The "A" scheduled property was capable of fetching an income of Rs.20,000/- per annum. Accordingly, the plaintiffs prayed for partition and for allotment of 2/3 rd share in their favour in the suit properties after cancellation of the sale deeds. 3. Per contra, denying and refuting, gainsaying and impugning, the allegations/averments in the plaint, the defendants 1 and 2 filed the written statement, the pith and marrow of it, would run thus: The deceased Sundara Gounder was not addicted to intoxicating liquor and he did not lead an immoral life. For discharging the legitimate debts incurred by him for the welfare of the family and also for discharging his father Palanisamy Gounder's debt, the "A" schedule property was sold in favour of D1 and D2. In fact, Sundara Gounder, incurred debs by borrowing money from Co- operative Agricultural Credit Society, Varadayampalayam and from other persons for meeting the family necessities. One Ramasamy Gounder filed the suit O.S.No.1874 of 1969 before the District Munsif Court, Coimbatore and obtained a decree as against Sundara Gounder. It was D1, who discharged the said debt. One Unnammal also obtained a decree in O.S.No.1814/69 before the District Munsif Court, Coimbatore as against Sundara Gounder and that debt was also discharged by D1. The deceased Sundara Gounder and his brother jointly borrowed money and executed pro-notes in favour of third parties and the defendants 1 and 2 discharged those debts. In the sale deed in favour of D1 and D2, those facts are found set out. Those debts were not illegal debts and the loan documents are not cooked-up documents. The plaintiffs are bound by the debts of Sundara Gounder. It is false to state that D2 was in the womb at the time of emergence of the sale deed in favour of D1 and D2. In fact, Sundara Gounder was not able to cultivate the suit properties sold to D1 and D2, for various reasons. He shifted his residence to Tiruvannamalai to engage himself in agricultural operations and there he was living with his family members. Till his death, he maintained his wife and children. Accordingly, they prayed for the dismissal of the suit. 4. D3 filed the written statement, challenging the averments/allegations in the plaint by setting out various grounds, the warp and roof of them would run thus: D3 purchased the "B" scheduled property of the plaint from Sundara Gounder and his sons, for a valid consideration of Rs.3,000/-. Sundara Gounder and his family was heavily indebted. Sundara Gounder could not discharge the promissory note debt for Rs.4,000/- in favour of one Kullappa Gounder and D3 was requested to discharge the said debt and accordingly, D3 discharged the debt https://hcservices.ecourts.gov.in/hcservices/ and he got the pro-note from Kullappa Gounder. Inasmuch as Sundara Gounder was constrained to face the predicament of suits for recovery of money being filed as against him, in respect of the debts incurred by him, he sold the suit property in favour of D3 for the purpose of discharging his loans. Sundara Gounder shifted his residence to Tiruvannamalai and he continued to maintain his family and he did not lead a wavered life or indulged in immoral activities. Accordingly, he prayed for the dismissal of the suit. 5. The trial Court framed the relevant issues. During trial, on the side of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A1 and Ex.A10 were marked. On the side of the respondents D.Ws.1 to 7 were examined and Exs.B1 to Ex.B19 were marked. The trial Court ultimately dismissed the suit as against the plaintiffs. 6. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiffs filed this appeal on various grounds, the quintessence of them would run thus: (i) The judgment and decree of the trial Court is against law, weight of evidence and all probabilities of the case. (ii) Even though there was no iota or shred of evidence to prove the alleged debts incurred by Sundara Gounder, the trial Court simply believed the version of the defendants and dismissed the suit. (iii) The defendants have not proved that Exs. A2 and A3 sale deeds relating to the suit properties emerged for improving the family necessities. (iv) The loan dues towards Tirupur Land mortgage bank and agricultural Co-operative society are less than Rs.3,700/- and there had been no necessity at all for executing such sale deeds. (v) As per Exs.B13 to B16, the Court decrees, the total amount payable was only Rs.7,782/- and nothing more and that Sundara Gounder had no necessity to sell the suit property for family needs. (vi) The alleged pro-note itself to the tune of Rs.22,609/- as found set out in Ex.A2 is not proved to be a genuine one. https://hcservices.ecourts.gov.in/hcservices/ (vii) Exs.B6, B8 and B9 were not proved in the way known to law. (viii) The debt, allegedly due to Chinna Marudhar Gounder was not proved by producing the relevant promissory note and the alleged debts referred to in Exs.B6, B7, B8 and B9 were not proved to have been incurred for family necessity and there had been no such necessity at all for the family. (ix) The trial Court failed to note that Sundara Gounder in fact sacrificed the necessity of the minors shares in the joint family property without any legal necessity. (x) The Court below did not appreciate the oral evidence adduced but the plaintiffs and the defendants in proper perspective. (xi) The sale consideration found specified in those sale deeds are inadequate and insufficient and such a significant fact was not noted by the lower Court. (xii) The trial Court failed to appreciate that the debts contemplated in Exs.B6 and B7 amount to Rs.16,224/- was a joint debt of Sundara Gounder and his brother and there had been no justification for appropriating the entire amount allegedly due under Exs.B6 and B7, from out of the sale consideration? Accordingly the plaintiffs prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit. 7. The plaintiffs also filed CMP No.3589 of 2007 seeking permission to raise additional grounds and my learned Predecessor permitted the plaintiffs to raise such grounds: 8. The additional grounds of appeal would run thus: The lower court simply relied on the recitals as contained in Ex.A2 and Ex.A5, in the absence of evidence aliunde to prove such recitals. The recitals in those documents might at the most bind the parties to the documents and not others. However, in this case, the plaintiffs who were minors cannot be made to be bound by such recitals. The lower court failed to note the fact that the burden of proof was on the alienees to prove the genuineness of the sale deeds in their favour and also the fact https://hcservices.ecourts.gov.in/hcservices/ that for legal necessity and for the benefit of the joint family members, the properties were sold. But absolutely, no evidence was available before the trial Court. In the absence of any evidence demonstrating that the father as Kartha of the family exercised his discretion as a prudent Manager at the time of alienation, the lower Court simply held those sales as valid. 9. The points for consideration are as to: (i) whether the properties sold under Exs.A2 and A3, the sale deeds emerged for legal necessity and for the welfare of the joint family including the then minors? (ii) Whether the alienees of the suit properties, viz., the defendants discharged their burden in proving that such sales were effected in their favour purely for the legal necessity and on the joint family and also the welfare of the then minors in the co-parcenery? (iii) Whether the debts contemplated in Ex.A2 and Ex.A3 were incurred for any immoral or illegal purpose of Sundara Gounder? (iv)Whether there is any infirmity in the judgment and decree of the trial Court? 10. Heard the learned counsel appearing for the parties. C.M.P.No.203 of 2008:- 11. The appellants also filed C.M.P.No.203 of 2008 to receive an additional document, viz., Registration copy of the sale deed in favour of respondent No.4 executed by the third respondent dated 26.05.1993. 12. The gist and kernel of the plea of the appellants/plaintiffs for reception of additional document is based on the fact that the said document, viz., Registration copy of the sale deed dated 26.05.1993 would evince and evidence that during the pendency of the suit R3 and his sons sold certain properties, which are forming part of the suit properties. 13. I am of the considered opinion that such a document could rightly be permitted to be filed and marked for the reason that the Court could take note of the changes, which occurred during the pendency of the suit for proper adjudication of the matter comprehensively. Order 41 Rule 27 of CPC is wide enough to https://hcservices.ecourts.gov.in/hcservices/ permit such a document to be filed and marked. Accordingly, the said additional document shall be marked as Ex.A11 in continuation of Exs.A1 to A10 already marked during trial on the side of the plaintiffs/appellants. 14. C.M.P.No.1300 of 2008: This petition has been filed by the contesting defendants 1 and 2/respondents herein under Order 41 Rule 27 C.P.C. for adducing additional evidence by getting marked the certified extract of the date of birth dated 10.7.2008 relating to the second plaintiff, namely, Ravichandran, for the purpose of proving that as on the date of emergence of Ex.A2-the sale Deed dated 18.2.1970, executed by the said Sundaram and his mother Janakiammal in favour of Duraisamy and Marudhachalam, the defendants 1 and 2 herein, the second plaintiff was not at all born and that too in view of the fact that in the plaint the plaintiffs having averred that the second plaintiff was in the womb at the relevant time, but during trial it was alleged as though the second plaintiff was nine months old baby. 15. The plaintiffs, by filing counter, would oppose the entertaining of such document on various grounds, the gist and kernal of them would be to the effect that such birth extract cannot be entertained as evidence and that too when already the trial Court vide its order dated 5.8.1991 declared the second plaintiff as one attained majority, based on the undisputed fact that P2 was born on 10.5.1969 and not based on any such birth extract, as it is now sought to be filed as additional evidence. At this juncture I am of the considered opinion that in matters of this nature, where the plaintiffs themselves did choose to come forward with prevaricative stands so as to say one in the plaint and another during trial, there is no harm in permitting the defendants to adduce additional evidence in the form of the certified extract of the birth certificate of the second plaintiff. 16. The learned counsel for the plaintiffs filed memo, enclosing the certified copy of the affidavits and petitions, including the order passed by the lower Court thereon in I.A.Nos.705/91, 706/91 and 1569 of 1991, and submit that the trial Court accepted the second plaintiff's contention that he was born on 10.5.1969 as per the xerox-copy of his SSLC Mark List and Transfer Certificate and not based on any birth extract, similar to the one which is sought to be filed by the defendants before this Court. 17. It is also apparent that the birth extract is not a cooked up document and it was duly signed by the authority concerned and there is no necessity for formally entertaining any oral evidence to prove the same. The birth extracts issued by the https://hcservices.ecourts.gov.in/hcservices/ appropriate authority could be taken as evidence . The perusal of the birth extract would show that a male was born to the said Sundaram Gounder and Rajammal the mother of P2 on 21.7.1970. It is also well known practice in Tamil Nadu that normally at the time of registering the birth of a child the name is not given and subsequently only steps are taken to get the name incorporated in the birth register. However, in this case, the name had not been got registered subsequently, but the circumstances would clearly exemplify that the said couple gave birth only to P2 and none else, during the relevant date i.e. on 21.7.1970. Accordingly, the said birth extract is marked as Ex.B20 in continuation of the aforesaid Ex.B1 to B19 already marked during trial. The significance of Ex.B20 would be discussed infra at the appropriate stage. 18. Point No(i), (ii) & (iii):- The pith and marrow of the argument of the learned counsel for the plaintiffs is that the burden of proof that the alienations made by the deceased Sundaram Gounder-the father of the plaintiffs, as per Ex.A2 and Ex.A7-the Sale Deeds was on the alienees, namely, D1 and D2, were purely for the purpose of legal necessity or for the then minor plaintiffs' welfare or for preserving the family properties; but in this case, no such evidence was let in; each and every debt referred to in Ex.A2 and A3 should have been proved by the alienees that those debts were real and genuine debts, incurred for the aforesaid genuine purpose and that they were discharged duly and mere probabilities would not be sufficient to hold that such sales were effected genuinely. 19. Per contra, the learned counsel for the defendants 1 and 2 would contend that such sales were effected purely for the purpose of legal necessity, family necessity and for discharging the genuine debts incurred and not for any immoral purpose. 20. The learned counsel on both sides in unison would agree to the legal proposition that the burden of proof is on the alienees, who purchased properties, to prove that such sales were effected for legal necessity or for family necessity or for preserving the property or for the welfare of the then minors. Both sides cited numerous decisions, which would be dealt with infra and all those decisions would posit the aforesaid proposition of law only. It is therefore just and necessary to analyse the evidence available on record in the light of the trite proposition of law. 21.The learned counsel for the plaintiffs filed in brief, written submissions in brief, reply submission and also the submissions regarding the defects in the judgment of the lower Court. https://hcservices.ecourts.gov.in/hcservices/ Factual Background:- 22. The gist and kernel of the facts would run thus: The first plaintiff is the son of Sundaram Gounder born through his deceased first wife; the second plaintiff was born to the same Sundaram Gounder through his second wife Rajammal; consequent upon the death of Palanisamy Gounder his sons, namely, Sundaram Gounder, Velusamy @ Mani and Palanisamy Gounder's wife Janakiammal got the family property divided among themselves as per Ex.A1-the Partition Deed dated 5.12.1965. The properties described in the 'A' Schedule of Ex.A1 were allotted to Sundaram Gounder, which comprised of Garden lands, measuring an extent of 3.89 acres in Survey No.199 Kattampatti Vilalge, along with Well and a 7.5 H.P. Electric Motor Pumpset, and 5 Anganam tiled Saalai, situated in it. Under the same said 'A' Schedule of properties, a residential house, bearing door No.2/1 – 4½ Anganams and 4 Anganam Thatched Kottam South of the house with the vacant space, measuring North to South 15 ½ cubits and East to West 15½ Cubits with half right in the Well. Whereas, as per Ex.A1 the 'B' Schedule property in Survey No.168/1 with electric Motor Pump Set was allotted to Velusamy, the brother of Sundaram Gounder. As per the 'C' Schedule of properties in Ex.A1, an extent of 2 acres in Survey Number 199 was given to the said Janakiammal for life and the absolute right in favour of Sundaram Gounder. She was also given with three anganam tiled house to the South of the house of Sundaram Gounder and one anganam thatched kottam with the right to use the Well on its Western side for her life and thereafter to be owned absolutely by Sundaram Gounder. 23. The description of properties as set out supra is warranted for the purpose of having a clear idea as to whether the sales as contemplated in Ex.A2 and A3 were sold for adequate consideration and also for genuine purposes. It is therefore just and necessary to analyse Ex.A2 and Ex.A3 and the circumstances under which those Sale Deeds emerged. 24. Ex.A2-the Sale Deed dated 18.2.1970 was executed by Janakiammal, wife of Palanisamy Gounder and her son namely, the said Sundaram Gounder on his behalf and on behalf of his minor child, namely, the first plaintiff aged 4 years in favour of D1 and D2, selling the entire agricultural lands allotted to Janakiammal and Sundaram Gounder, as per Ex.A1-the Partition Deed. Discussion relating to P2 whether he was in existence as on the date of emergence of Ex.A2: https://hcservices.ecourts.gov.in/hcservices/ 25. At this juncture it is worthwhile to deal with to the contentious issue as to whether the second plaintiff Ravichandran was alive as on the date of emergence of Ex.A2 i.e. 18.2.1970. 26. Ex.B20 the birth extract as set out above, is relating to the second plaintiff-Ravichandran, who was born on 21.7.1970; which is incommensurate with the plaint averment that P2 was not born as on the date of Ex.A2 and there is no reference to the existence of P2-Ravichandran, in Ex.A2 also. Had really Ravichandran been alive and in existence as a child of nine months old, certainly in Ex.A2, while referring to P1 as a minor boy of 4 years old, P2 also would have been referred similarly. On the plaintiffs side it was unsuccessfully and unsatisfactory attempted to be explained and expounded by arguing that the existence of P2 was not referred to in Ex.A2 because P2 was a tender aged child. Such an argument is neither here nor there. Having chosen to refer to P1-a small boy of 4 years old as the co-nominee party in the Sale Deed Ex.A2, there could have been no rhyme or reason for allegedly having left out P2 on the ground that P2 was only a 9 months old baby. 27. It is a trite proposition of law that Civil cases should be adjudicated based on preponderance of probabilities. Here such probabilities are in favour of the defendants case, inasmuch as P2 was not in existence as on the date of execution of the Sale Deed Ex.A2, his name is not found in that Sale Deed. Over and above that, the plaintiffs also candidly and categorically stated in the plaint that as on the date of execution of Ex.A2, P2 was not yet born. However, subsequently, during trial they relied on Ex.A10- the certificate issued by the Headmaster of the School, in which P2 studied, to the effect that Ravichandran was born on 10.5.1969. In fact, at the appellate stage, on the plaintiffs' side, they have also field in the typed set of papers, the copy of School Record Sheet, copy of School Admission and the Certificate issued by the Headmaster concerned just to highlight that as revealed by Ex.A10-P2 was born on 105.1969, so to say nine months anterior to the emergence of Ex.A2. The core question arises as to whether Ex.B20-the birth extract of P2 or Ex.A10-the Birth Certificate issued by the School Headmaster, based on School records, should be taken into consideration. 28. I am of the considered opinion that in the facts of this case, the birth extract Ex.B20 is more reliable than the School Certificate. It is also to be highlighted that as per Indian Evidence Act, Ex.A10, the Certificate issued by the Headmaster was not proved by examining the Headmaster concerned or the School authorities. At this juncture, my mind is redolent with the following decision of the Honourable Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 1975(2) SCC 564- LALA SATYANARAIN PRASAD VS. GADADHAR RAM, certain excerpts from it would run thus: "7. The High Court rightly did not place any reliance on the certificate. The truth of the contents of the certificate could not be proved by a clerk who only proved the handwriting on the certificate. The Head Master, who issued the certificate, was not examined. The original admission register on the basis of which the certificate was given was not proved. The clerk, who proved the handwritings of the certificate, could not say who