1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:24.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.137 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Sivagami 2.V.Kameshwari 3.V.Nagaperumal 4.V.Balamurugan :Appellants/Plaintiffs -Vs- N.Veluchamy :Respondent/Defendant Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.06.2010 passed in Appeal Suit No.17 of 2008 by the Principal District Court, Virudhunagar District at Srivilliputtur confirming the Judgment and decree dated 04.07.2005 passed in Original Suit No.78 of 2003 by the Sub Court, Aruppukottai. For Appellants : Mr.S.Subbiah For Respondent : No appearance JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.78 of 2003 by the Sub Court, Aruppukottai and in Appeal Suit No.17 of 2008 by the Principal District Court, Virudhunagar District at Srivilliputtur. 2.The appellants herein as plaintiffs have instituted Original Suit No.78 of 2003 on the file of the trial Court for the reliefs of partition and separate possession of their 4/5 shares, wherein the present respondent has been shown as sole defendant. 3.The material averments made in the plaint are that the suit properties are originally belonged to maternal grandfather and grandmother of the plaintiffs 2 to 4. On 22.04.1987, a will has been executed in favour of the defendant, who is none other than the father of the plaintiff 2 to 4 and husband of the first plaintiff. The defendant has purchased the suit third item on 02.08.1982. On 16.06.1980, a gift deed has been executed in favour of the defendant in respect of suit items 1 and 2. Under the said circumstances, all the suit properties are the joint family properties and in which the plaintiffs are having 4/5 shares. The defendant has been leading a wavered life. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendant, it is averred that the father of the defendant viz., Nagalingam Pillai has executed a settlement deed dated 22.04.1987 in respect of the suit fourth item and therefore the suit fourth item is the separate property of the defendant. The suit third item has been purchased by the defendant and therefore the same is also his separate property. On 16.06.1980, the brothers of the defendant have executed a gift deed in favour of the defendant in respect of suit items 1 and 2 and the same are also nothing, but his separate properties. It is false to aver that the suit properties are the joint family properties. Since the suit properties are the separate https://hcservices.ecourts.gov.in/hcservices/ 2 properties of the defendant, the plaintiffs are not having any manner of right or interest over the same and there is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.17 of 2008 on the file of the first appellate Court 6.The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiffs as appellants. 7.Even though the respondent/defendant has been served with the summons, appearance has not been made. Under the said circumstances, the present second appeal is disposed of on merits at the stage of admission on the basis of the contention putforth on the side of the appellants/plaintiffs. 8.On the side of the appellants/ plaintiffs, the following substantial questions of law have been raised for consideration: a) When the appellants have filed an application to receive the additional evidence is it not the failure on the part of the Court to take it up the application on file and decide it on merits along with the main appeal? b) When the appellants had produced the original title deeds pertaining to the suit properties, is not a legal presumption be drawn that the sons in possession of the original title deeds could be treated as the members of the coparcenery along with their father? c) When the father himself had admitted that he was not maintaining his wife and his children can his contention be accepted that he was thrown out of the suit property forcibly by the appellants on the basis of the copy of the complaint said to have been produced by the respondent as Exhibit B.1 even without filing any such proof to prove the said complaint? d) When the respondent had not established the right of his predecessors over the suit properties as their separate properties, can the Court rely upon any will or settlement to hold as if that on the basis of such settlement or will the properties are his separate properties? 9.Before contemplating the submission made on the side of the appellants/plaintiffs, the Court has to look into the documents filed on the side of the plaintiffs. Ex.A.1 is a settlement deed executed by the brothers of the defendant in his favour, wherein the suit items 1 and 2 have been dealt with. Ex.A.2 is a settlement deed which stands in the name of the defendant, wherein the suit item 3 has been dealt with. Ex.A.3 is a gift deed executed by the father of the defendant in respect of suit fourth item. https://hcservices.ecourts.gov.in/hcservices/ 3 10.The learned counsel appearing for the appellants/plaintiffs has strenuously contended that the suit items 1 and 2 are the joint family properties and the mother of the defendant as well as executants of Ex.A.1 have had no right to execute Ex.A.1 and further the defendant has purchased the suit third item by way of utilising the income derived from the suit items 1 and 2 and likewise the father of the defendant has had no right to execute Ex.A.3 in respect of the suit fourth item and thus all the suit properties are joint family properties and the Courts below without considering the contention urged on the side of the plaintiffs have erroneously non-suited them and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 11.It is an admitted fact that in respect of the suit items 1 and 2, Ex.A.1 has come into existence. Ex.A.1 is nothing, but a gift deed alleged to have been executed by the brothers of the defendant in respect of the suit items 1 and 2, wherein a recital is found to the effect that the brothers of the defendant have got the same by virtue of the Will alleged to have been executed by their mother. At this juncture, a faint attempt has been made on the side of the appellants/plaintiffs to the effect that the will alleged to have been executed by the mother of the executants of Ex.A.1 as well as defendant has not been marked and therefore no credence could be attached to Ex.A.1. 12.As stated earlier in Ex.A.1 a recital is found to the effect that the executants have got the property mentioned in Ex.A.1 by virtue of the Will alleged to have been executed by their mother. Ex.A.1 has come into existence on 16.06.1980. The present suit has been instituted in the year 2003. Considering the fact that Ex.A.1 has come into existence on 16.06.1980 and the present suit has been instituted in the year 2003, it is needless to say that the executants of Ex.A.1 have had derived right, title and interest over the suit first and second items by virtue of the will alleged to have been executed by their mother. Therefore the contention urged on the side of the appellants/plaintiffs with regard to Ex.A.1 cannot be accepted and further the properties derived under Ex.A.1 (suit items 1 and 2) are nothing, but separate properties of the defendant. 13.Ex.A.2 is a sale deed, which stands in the name of the defendant relating to the suit third item. On the side of the appellants/ plaintiffs an inert attempt has been made by way of advancing argument to the effect that the property purchased under Ex.A.2 is a joint family property, since the same has been purchased by utilising joint family funds. In the instant case, on the side of the appellants/plaintiffs no evidence has been adduced to the effect that the defendant has had in possession of income yielding joint family property. Since the above aspect has not at all been proved on the side of the appellants/plaintiffs, the Court can very well come to a conclusion that the property mentioned in Ex.A.2 (suit third item) is also a separate property of the defendant. 14.Ex.A.3 is a gift deed executed by the father of the defendant in respect of the suit fourth item. Since the defendant has acquired right, title and interest over the suit fourth item by virtue of Ex.A.3 it is needless to say that it is his separate property. https://hcservices.ecourts.gov.in/hcservices/ 4 15.The present suit has been instituted for the reliefs of partition and separate possession stating that all the plaintiffs are having 4/5 shares in all the suit properties. The present suit is proceeded on the basis that the suit properties are the joint family properties. But to prove the same, even an iota of evidence is not available in the present case. Even on the basis of the documents filed on the side of the plaintiffs, the Court can easily come to a conclusion that all the suit properties are the separate properties of the defendant. Since all the properties are the separate properties of the defendant, the plaintiffs are not having locus standi to institute the present suit for the reliefs sought for therein. 16.The Courts below after considering all the contentions raised on either side have rightly non-suited the plaintiffs. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further the substantial questions of law raised on the side of the appellants/plaintiffs are not having substance at all and altogether the present second appeal deserves to be dismissed. 17.In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission and the concurrent Judgments and decrees passed by the Courts below are confirmed Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar (Writs) / TRUE COPY / Sub Assistant Registrar To: 1.The Principal District Judge, Virudhunagar District at Srivilliputtur. 2.The Subordinate Judge, Aruppukottai. +1CC to Mr.S.Subbiah, Advocate. SR.No.20236. Smn RP/20.07.2011/4P/4C. S.A(MD)No.137 of 2011 and M.P(MD)No.1 of 2011 24.06.2011 https://hcservices.ecourts.gov.in/hcservices/