IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.12.2011 CORAM: THE HONOURABLE MR.JUSTICE T.MATHIVANAN A.S.Nos.137 & 138 of 2006 A.S.No.137 of 2006: 1.J.Murugesan 2.J.Harikrishnan 3.J.Sarangapani 4.J.Gopalakrishnan [Minor rep. by mother and Natural Guardan Pottiammal] 5.Smt.Pottiammal : Appellants/Defendants 2 to 6 Vs. 1.Rani (Deceased) 2.Indirani 3.Rajeswari 4.Vedagiri : Respondents 1 to 4/ Plaintiffs 2 to 5 5.Kalitheertham :5th respondent [R5 brought on record as LR of the deceased R1 vide order of this court dated 13.12.2010 made in CMP.No.1739/10] Prayer: Appeal is filed under section 96 of the Civil Procedure Code, against the decree and judgement, dated 29.04.2005 and made in O.S.No.330 of 2004 on the file of the Additional District Judge (Fast Track Court-I), Chengalpet. A.S.No.138 of 2006: 1.Pottiammal 2.Murugesan 3.Harikrishnan 4.Sarangapani 5.Gopalakrishnan : Appellants/Plaintiffs https://hcservices.ecourts.gov.in/hcservices/ vs. 1.Rani (deceased) 2.Indrani 3.Rajeswari 4.M.Vedagiri 5.Ashok Kumar Nahar : Respondents 1 to 5/ Defendants 3 to 7 6.Kali Theertham : 6th Respondent [R6 brought on record as LR of deceased R1, vide order of this court, dated 13.12.2010 and made in CMP No.1740 of 2010] Prayer in A.S.No.138 of 2006: Appeal is filed under section 96 of the Civil Procedure Code, against the decree and judgement, dated 29.04.2005 and made in O.S.No.329 of 2004 on the file of the Additional District Judge (Fast Track Court-I), Chengalpet. For Appellants : Mr.V.Raghavachari (in both A.S) for Mr.S.Saravanakumar For Respondents : Mr.T.R.Rajagopalan, Senior Counsel for Mr.T.R.Rajaraman for RR2 to 5 in A.S.No.137/2006 and for RR2 to 4 & 6 in A.S.No.138/2006 Mr.S.Parthasarathy Senior Counsel for Mr.J.Ramakrishnan for R5 in A.S.No.138 of 2006 C O M M O N J U D G M E N T These two regular appeals viz., A.S.Nos.137 and 138 of 2006 have been directed against the common judgment, dated 29.04.2005 and made in O.S.Nos.329 and 330 of 2004 respectively on the file of the learned Additional District Judge (Fast Track Court-I), Chengalpet. 2. The appellants in A.S.No.137 of 2006 are the defendants 2 to 6 in the suit in O.S.No.330 of 2004 and the respondents 1 to 4 are the plaintiffs. The 5th respondent has been brought on record as the legal heir of the deceased first respondent, vide order of this court, dated 13.12.2010 and made in CMP No.1739 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 3. The appellants 1 to 5 in A.S.No.138 of 2006 are the plaintiffs in the suit in O.S.No.329 of 2004 and the respondents 1 to 5 are the defendants 3 to 7 therein. The 6th respondent has been brought on record as the legal heir of the deceased first respondent, vide the order of this court, dated 13.12.2010 and made in CMP No.1740 of 2010. 4. The parties in both the appeals are one and the same. The properties described in the schedule, in both the suits and the subject matter, which is in issue, in both the appeals are also one and the same. These two appeals have therefore been clubbed together, heard jointly and disposed of in this common judgment. 5. For easy reference and for the sake of convenience, the parties to the appeals may herein-after be referred to as the appellants and the respondents as it is. 6. The facts, which are absolutely necessary for the disposal of these two appeals may be summarised in brief as under:- Before we go into the facts of the case, this court feels that it may be quite relevant to give a topographical sketch of the genealogy of Muthukrishna Naidu. Because, he is the man around him the whole case hinges. Muthukrishna Naidu [died-after suit (D-2)] | |-----------------------------| | | Devaki Ammal (died) Jayalakshmi Ammal (D1) (First wife) (2nd wife) (Died after suit) | Jayachaldndra Naidu (son) | (Died on 5-7-1984) | | | =Potti Ammal (P-1) | (wife) | | | | Rani Indirani Rajeswari Vedagiri | (D-3) (D-4) (D-5) (D-6) | (daughter) (daughter) (daughter) (son) | =[D.W.2] =[D.W.3] | -|---------------------------------------------| Murugesan Harikrishnan Sarangan Aliappan (son) (son) (son) @ Gopalakrishnan (son) (P-2) (P-3) (P-4) (P-5) https://hcservices.ecourts.gov.in/hcservices/ 7. Muthukrishna Naidu had two wives, by name Devaki Ammal (Died) and Jayalakshmi Ammal (D1) (died after the suit). He had begotten one son through the first wife Devaki Ammal, by name Jayachandra Naidu (died on 5.7.1984). Through, the second wife Jayalakshmi Ammal, Muthukrishna Naidu had begotten three daughters and one son viz., Rani (D3), Indirani (D4), Rajeshwari (D5) and Vedagiri(D6). 8. Pottiammal, who is the first appellant in A.S.No.138 of 2006 is the wife of Jayachandra Naidu. She had begotten four sons through Jayachandra Naidu viz., Murugesan (2nd plaintiff), Harikrishnan (3rd plaintiff), Sarangan (4th plaintiff) and Aliappan @ Gopalakrishnan (5th plaintiff). 9. Pottiammal and her sons have filed the suit in O.S.No.329 of 2004 claiming partition of their half share in the schedule mentioned property therein. 10. Similarly, Jayalakshmi Ammal, who is the 2nd wife of Muthukrishna Naidu has filed another suit in O.S.No.330 of 2004 against her husband Muthukrishna Naidu, his grandsons (sons of Jaichandra Naidu), Pottiammal (wife of Jaichandra Naidu), her own daughters and son viz.Rani, Indrani, Rajeswari and Vedagiri as defendants 1 to 10. During the pendency of suit Jayalakshmi Ammal had passed away and therefore the defendants 7 to 10 have been transposed as plaintiffs 2 to 5 as per the Order of the Trial Court dated 24.04.2003 and made in I.A.No.301 of 2002, seeking the relief of declaration of her title to the property described in the schedule in the above said suit and also for recovery of possession, past and future profits. 11. In the suit in O.S.No.329 of 2004, the appellants/plaintiffs have contended that Jayachandra Naidu being the son of Muthukrishna Naidu is entitled to half share in the suit schedule properties and hence the appellants being the legal representatives of Jayachandra Naidu will inherit his half share in the suit properties. The other half share goes to the first defendant, Jayakahsmi Ammal, who is none other than the 2nd wife of Muthukrishna Naidu. 12. In the suit in O.S.No.330 of 2004, Jayalakshmi Ammal being the plaintiff has contended that the property more-fully described in the plaint schedule comprised in S.No.140, measuring one acre and 48 cents is absolutely belonged to her and that she has been in absolute possession and enjoyment of the same. 13. In the said suit, she has also contended that since her husband, Muthukrishna Naidu, was patronising his children through his first wife against her interest and her children and since, her https://hcservices.ecourts.gov.in/hcservices/ husband Muthukrishna Naidu had made an attempt to interfere with her properties, she had to file a suit in O.S.No.39 of 1958 on the file of the learned Subordinate Judge, Chengalpet, seeking the relief of declaration and permanent injunction against her husband Muthukrishna Naidu, his son Jaychandra Naidu born through his first wife Devaki Ammal and Pottiammal wife Jayachandra Naidu. 14. The property in the suit in O.S.No.330 of 2004 has been figured as item No.24 in the suit viz., O.S.No.39 of 1958. That suit was ended in compromise at the intervention of some mediators and accordingly, on 17.10.1958, a compromise decree was passed. 15. As per Clauses 2 to 5 of the compromise decree, it was declared that the suit property (S.No.140 measuring an extent of one acre and 48 cents) and other items mentioned in that suit, except the properties enumerated in schedule I and II, belonged to the first defendant Jayalakshmi Ammal and that she should enjoy them absolutely. 16. The properties specified in the 1st schedule in the compromise decree were given to Muthukrishna Naidu and the 2nd schedule properties were given to Jayachandra Naidu. In this regard, the appellants have contended that the compromise decree obtained on 17.10.1958 in O.S.No.39 of 1958 was collusive in nature and was neither accepted nor acted upon and that it is not binding on them. 17. The appellants have further contended that the properties that are described in the schedule of the present suit, are the joint family properties and that they are in joint possession. 18. The appellants were put to understand that Muthukrishna Naidu had executed a Settlement Deed, dated 14.09.1984 with regard to some of the items of the joint family properties in favour of the appellants 2 to 5, and it was neither accepted nor acted upon, as it is a shame, void and nominal Settlement Deed. 19. Muthukrishna Naidu, (D2) (since deceased) was in possession of the suit schedule properties as joint family manager, including for the appellants. No division was effected in respect of the schedule mentioned properties. Despite the demand made by the appellants through a lawyer's notice, dated 23.10.1988, there was no response on the side of the respondents. Hence, the appellants have come forward with the suit for partition, seeking half share. 20. The written statement filed by the first defendant in the suit in O.S.No.329 of 2004 has been adopted by the defendants 3 to 6. https://hcservices.ecourts.gov.in/hcservices/ 21. The respondents 1 to 4/defendants 3 to 6, in A.S.No.138 of 2006, have admitted the relationship of the parties to the suit. 22. The 2nd defendant, Muthukrishna Naidu, who was given the properties mentioned in schedule I to the compromise decree in O.S.No.39 of 1958 was in possession of those properties and was dealing with them. Similarly, Jayachandra Naidu, the husband of the first appellant Pottiammal was also in possession of the property mentioned in the 2nd schedule to the compromise decree and was dealing with the same. Neither, Muthukrishna Naidu nor Jayachandra Naidu had any interest over the properties of the first defendant Jayalakshmi Ammal, shown in the schedule to the compromise decree. 23. Muthukrishna Naidu was in possession of the schedule mentioned properties in the suit, as joint family manager. 24. It is significant to note here that the plaint schedule does not contain the properties given to the 2nd defendant Muthukrishna Naidu and Jayachandra Naidu under the compromise decree in O.S.No.39 of 1958. The properties have been acquired by the first defendant, Jayalakshmi Ammal and as such, she has been in possession and enjoyment and that the appellants/plaintiffs have, therefore, no interest in the suit properties and they were never in possession thereof. 25. In their additional written statement, the respondents/defendants 3 to 6 have contended that most of the properties described in the schedule are the exclusive properties of their mother Jayalakshmi Ammal (first defendant), as she having purchased the same from out of her own funds, savings, borrowings and contributions received from her parents or gifted by them. She was the sole and absolute owner and therefore they have been in exclusive possession and enjoyment of the same. Some of the properties described in the plaint were the properties purchased by Muthukrishna Naidu (2nd defendant), out of his funds and savings. They were his separate properties. There was no ancestral nucleus. The following lands were purchased by their mother viz., first defendant out of her own funds and savings, borrowed, or contributions from her parents. a.Chengalpet Taluk, Thenur Village – Sale Deed, Dated 12.11.1937 S.No.89/1A 0.38 (0.16.0) S.No.113/1B 0.33 (0.14.5) S.No.113/1D 0.18 (0.05.5) https://hcservices.ecourts.gov.in/hcservices/ b.Alathur Village - Sale Deed, dated 9.12.1944 S.No. 32/1 0.73 (0.30.0) 77/2A 77/2B 0.49 (0.12.0 & 0.18.0) 116 0.26 (0.10.5) 145/2 1.00 (0.40.5) 185/9 1.26 (0.51.0) 192/4 0.49 (0.02.0) 212 0.85 (0.34.5) 220/1C 0.12 (0.5.0) 224/3 0.40.(0.20.0) 226/3 0.63(0.32.5) c.Alathur Village - Sale Deed, dated 1.11.1952 S.No.118/1B 0.14 (0.06.0) 36/5 0.15 (0.06.0) 203/3A 0.14 (0.05.0) 36/1 0.54 (0.22.0) 38/8 0.05-1/2 (0.02.0) 226/3 1.70 200/2 0.06 238 0.06 d.Alathur Village-Sale Deed, dated 17.11.1953 S.No.185/11 0.08.0 226/16 0.17.0 e.Thenur Village - Sale Deed, dated 18.6.1957 S.No.113/3 0.18.0 114/2 0.23.5 https://hcservices.ecourts.gov.in/hcservices/ f.Alathur Village, Sale Deed, dated 27.08.1979 S.No.147 : 1.80 (0.70.0) g.Alathur Village, Sale Deed, dated 14.07.1980 S.No.185/10:1.22 (0.49.5) h.Alathur Village, Sale Deed, Dated 22.07.1982 S.No.197/1 : 0.80 (0.32.0) 26. The following lands were acquired by their mother 1st defendant from her mother, Seethammal as 'Sridan' property under the Gift Deed, dated 5.2.1946. Thenur Village S.No.114/3 0.30 (0.12.0) 115/1 0.65 (0.26.5) 115/4 0.25 (0.10.0) 148/1 0.25 156/2 1.00 27. The followings lands were purchased by the first defendant, Jayalakshmi Ammal in the name of her mother Seethammal under two Sale Deeds, dated 29.08.1955. Subsequently, Seethammal had released her rights under two release deeds, dated 12.04.1959 in favour of Jayalakshmi Ammal. Alathur Village S.No.199/2 0.89 (0.40.0) 205/1 0.16 (0.13.5) 203/3B 0.59 (0.38.5) 204/2 0.31 (0.12.5) 204/3A 0.34 (0.06.0) 220/5 0.23 (0.18.5) 223/2B 1.20 (0.30.0) 220/2 0.06 https://hcservices.ecourts.gov.in/hcservices/ 28. The lands comprised in S.No.140, Alathur village, measuring 0.60.0 acres was acquired by the first defendant under the compromise decree, dated 17.09.1958 in O.S.No.39 of 1958. The house properties situated in S.No.107/5 and S.No.107/6, Alathur Village, Grama Natham, were purchased by the first defendant under a sale deed, dated 24.07.1946 out of her own funds and savings. Similarly, the vacant site in S.No.107/6, measuring 9 cents was purchased by the first defendant, Jayalakshmi Ammal, under the sale deed dated 09.12.1944. 29. The house bearing Door No.3, Muthukrishnan Street, T.Nagar, Madras-17 was originally a vacant site belonging to Muthukrishna Naidu, the 2nd defendant. The first defendant had purchased the same from him through a sale deed, dated 13.05.1937 prior to her marriage and put up a construction in the land out of her own funds. She was in exclusive possession and enjoyment of the same. Subsequently, she has settled the house property in favour of her son, M.Vedagiri, her daughter Indirani Ammal, who are the respondents 2 and 4 herein and the defendants 4 and 6 in the suit, under two settlement deeds, dated 28.07.1982, reserving her life interest in the properties. 30. They have also contented that the 2nd defendant (Muthukrishna Naidu) had executed a settlement deed in favour of his son Vedagiri, the 4th respondent herein and 6th defendant in the suit, in respect of the lands in S.No.151/1, Alathur village, measuring 0.20.2 acres under a settlement deed, dated 9.12.1983. 31. In the compromise decree, in O.S.No.39 of 1958, dated 17.10.1958, the following items were allotted to Muthukrishna Naidu and Jayachandra Naidu respectively. Muthukrishna Naidu - Alathur Village S.No.107/5 0.12 200/2 0.13 238 0.13 48/3 0.93 48/2 0.23 196/1 0.77 129 0.59 226/3C 1.69 Total 4.51 acres https://hcservices.ecourts.gov.in/hcservices/ Jayachandra Naidu – Alathur Village S.No.130/2 0.66 130/3 0.99 137 0.15 138 0.28 139/1 0.39 139/2 0.33 139/3 0.54 86/1 0.48 Total 3.82 acres 32. Excepting, the properties allotted to Muthukrishna Naidu and Jayachandra Naidu, the other properties specified in the compromise decree were declared as the properties of the first defendant, Jayalakshmi Ammal and neither Muthukrishna Naidu nor Jayachandra Naidu, had any claim over the same. The said compromise decree is binding on the appellants and therefore they cannot maintain any claim or share over the properties belonging to the first defendant (Jayalakshmi Ammal). The compromise decree has been acted upon by the appellants and therefore, they are estopped from questioning the same. 33. The respondents 1 to 4/defendants 3 to 6 have also contended that the suit, as framed without a prayer for setting aside the compromise decree in O.S.No.39 of 1958, is not maintainable. The suit or claim to enforce the right of the appellants/plaintiffs in respect of the properties alleged to be held binami against the first defendant, Jayalakshmi Ammal, is not maintainable as per section 4 of the Binami Transactions (Prohibition) Act, 1988. 34. They have also contended that in respect of other separate properties belonging to Muthukrishna Naidu, they are also entitled to a share as his legal-heirs. 35. The 3rd respondent/5th defendant has also filed her separate additional written statement, in which, she has contended that the respondents 1 to 4/defendants 3 to 6 are the members of the undivided Hindu Joint family and Muthukrishna Naidu was the head of the joint family, who died in the year 1991 and as a matter of fact, having regard to his long occupation of the area at Door No.3, the street, in which he was residing has been named as Muthukrishna Naidu Street, which is located opposite to Pondy Bazaar, Madras-600 017 1991, even https://hcservices.ecourts.gov.in/hcservices/ during his life. The first defendant, Jayalakshmi Ammal, is not a person of substantial means or status, but was only a house wife without any substantial assets and the 2nd defendant Muthukrishna Naidu, who is the father of this respondent/defendant had purchased the property and later, executed a deed of indenture on 13.05.1937 in favour of his wife the first defendant. Even though, he had executed a deed of indenture in favour of his wife, (Jayalakshmi Ammal), the first defendant, the property was treated as self-acquired property of Late Muthukrishna Naidu and was owned and possessed by him as his individual property during his life time and it was treated as the property for the benefit of the members of the family. 36. The alleged deed of indenture, dated 13.05.1937 was never acted upon and Late Muthukrishna Naidu continued to exercise the right of his ownership over the suit property, and had been managing the property till his demise in 1991. 37. Besides, Late Muthukrishna Naidu had also acquired extensive agricultural property at Alathur Village, Kancheepuram District and movables, such as jewellery worth about more than Rs.2 lakhs. The litigations in O.S.No.463 of 1997 and O.S.No.39 of 1958 were brought out by the first defendant (Jayalakshmi Ammal) in active collusion and connivance with Muthukrishna Naidu to defeat the rights of the parties, who have been enjoying the properties of the joint family and who are in joint possession of the said properties. 38. The alleged settlement deed, dated 14.09.1994 is also not binding upon the defendants (3rd respondent/5th defendant), in-as-much- as, it was neither accepted nor acted upon by the members of the family. 39. Despite the pendency of the suit, Jayalakshmi Ammal had dealt with some of the properties and the said transaction is vitiated. During the pendency of the suit, Jayalakshmi Ammal had created a settlement deed in favour of Indirani Ammal (2nd respondent/4th defendant) and Vedagiri (4th respondent/6th defendant) on 28.07.1982, reserving a life interest for herself and she had also executed a power of Attorney in favour of Ashokkumar Nahar, by a registered power of Attorney, on 24th February 1989. These documents were fabricated with a view to secret the assets for their benefits and therefore, the 3rd respondent/5th defendant has come forward with a prayer, for a decree for partition in respect of her share and she has also paid the proper court fee of Rs.200/- for passing a joint preliminary decree in favour of the plaintiffs as well as in her favour. https://hcservices.ecourts.gov.in/hcservices/ 40. In the re-joinder to the additional written statement filed by the defendants 4 to 6, the appellants/plaintiffs have contended that sub-item 19 to item No.35 of plaint schedule was not allotted to Muthukrishna Naidu under the compromise decree passed in O.S.No.39 of 1958. But Muthukrishna Naidu was said to have executed a settlement deed, dated 09.12.1993 to Indirani in respect of sub-item No.19 to Item 35 and this itself would go to show that the compromise decree in O.S.No.39 of 1958 was not acted upon. The lands in Thenur village do not belong to Jayalakshmi Ammal. 41. In the Sale Deed, dated 13.02.2003, alleged to have been executed and registered by the 6th defendant in favour of the 4th defendant in respect of Grama Natham S.No.107/6, it has been clearly recited that this property is the ancestral property of Muthukrishna Naidu. 42. Further, in the suit in O.S.No.39 of 1958 filed by the defendants 3 to 6 against the plaintiff and others for partition, they have admitted that there were joint family properties. The defendants 3 to 6 are, therefore, now estopped from denying that there were not joint family properties. 43. The written statement filed by the 2nd defendant, in the above said suit, viz., Murugesan has been adopted by the other defendants 3 to 5. In their written statement, they have contended that they have got it under a registered settlement deed, dated 14.09.1984 executed by Muthukrishna Naidu in their favour, as they being his grand-children. They have also contended that the compromise decree in O.S.No.39 of 1958, dated 17.10.1958 is not binding upon them and since the plaintiff (Jayalakshmi Ammal) is the 2nd wife of Muthukrishna Naidu cannot question the settlement deed. 44. They have also contended that Muthukrishna Naidu continued to be in possession well over the statutory period in pursuant to the decree from the year 1958 till the date of settlement deed, dated 14.09.1984. The compromise decree, dated 17.10.1958 passed in O.S.No.39 of 1958 was not implemented or acted upon. They have also contended that the properties are ancestral properties and by birth, they are entitled to a share in respect of the settlement deed as aforestated. 45. Apart from this, they have also contended that the principles of res-judicata is not made applicable to the facts of the present case, as the schedule property are the joint family properties. Even if the settlement deed is questioned, the defendants 2 to 5 will definitely get a share as a joint family members and that they never trespassed into the schedule mentioned properties as alleged by the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs and they continued to be in possession as lawful owners even prior to the settlement. 46. Based on the pleadings of the suit in O.S.No.329 of 2004 as well as the suit in O.S.No.330 of 2004, the trial court has formulated the following issues:- O.S.No.329 of 2004 1.Whether the plaintiff is entitled for partition as prayed for? 2.To what relief? Additional Issue:- 1.Whether the suit properties are the joint family properties? O.S.No.330 of 2004: 1.Whether the plaintiff is entitled for declaration as prayed for? 2.Whether the plaintiff is entitled for injunction as prayed for? 3.To what relief? 47. Based on the arguments advanced on behalf of both sides, the trial court has modified the issues in the following manner:- 1. Whether the 5th plaintiff is entitled to get a relief of declaration as prayed for in the suit? 2. Whether the 5th plaintiff is entitled to the relief of recovery of possession? 3. Whether the 5th plaintiff is entitled to get a sum of Rs.4,000/- towards past profit? 4. Whether the 5th plaintiff is entitled to future profit? 5. To what relief? 48. On a joint memorandum filed by both sides, the suit in O.S.Nos.329 of 2004 and 330 of 2004 were clubbed together and the evidences of the witnesses were recorded in O.S.No.329 of 2004. The 2nd plaintiff in O.S.No.329 of 2004 Murugesan was examined as PW1. https://hcservices.ecourts.gov.in/hcservices/ During the course of his examination, Exs.A1 to A15 were marked. On the other hand, the first defendant, Jayalakshmi Ammal in O.S.No.329 of 2004 was originally examined as D.W.1. The 4th defendant Indirani, the 6th defendant Vedagiri and the 7th defendant Ashok Kumar were examined as DW2 to DW4 respectively. During the course of their examination, Exs.B1 to B120 were marked. During the pendency of the trial, DW1 Jayalakshi Ammal had passed away. Hence, her evidence was eschewed. 49. On scrutinising the evidences, both oral and documentary available on record, the trial court has found that:- O.S.No.329 of 2004 (i)“The plaintiffs are entitled to get a share as prayed for in the suit, in respect of the property comprised in S.No.219/5 measuring 0.09.5, which has been shown as item No.2 under patta No.179 and in respect of other properties, the plaintiffs are not entitled to get share. With this finding the suit in O.S.No.329 of 2004 in other aspects was dismissed with costs. O.S.No.330 of 2004:- (ii)The 5th plaintiff is entitled for the relief of declaration in respect of the suit property and also for past profit to the extent of Rs.4,000/- and he is also entitled to get future profits. With this finding the suit in O.S.No.330 of 2004 was decreed with costs. (iii)The defendants 2 to 5 in the suit in O.S.No.330 of 2004 were directed to surrender the possession of the suit property to the 5th plaintiff along with Rs.4,000/- towards past profit within a period of two months. (iv)It was also found that the future