IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.10.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL APPEAL SUIT NO. 648 OF 1994 Sajjanraj Jain ... Appellant/Plaintiff Vs. 1.Vidhyabai 2.C.Prakashchand 3.B.Premchand 4.C.Inderchand 5.C.Gouthamchand 6.Madan Raj 7.Sohan Raj ... Respondents/Defendants (Respondents 1,4,5&7dismissed vide Court Order Dated :29.04.2010) Prayer: Appeal filed under Section 96 of Code of Civil Procedure, against the Judgment and Decree dated 29.09.1992 made in O.S.No.7718 of 1988 on the file of the Learned II Additional Judge, City Civil Court, Chennai. For Appellant : Mr.V.Raghavachari For Respondents 2, 3 & 6 : No appearance J U D G M E N T The Appellant/Plaintiff has filed this Appeal as against the Judgment and Decree in O.S.No.7718 of 1988 dated 29.09.1992 on the file of the Learned II Additional Judge, City Civil Court, Chennai. 2.The trial Court viz., the Learned II Additional Judge, City Civil Court, Chennai in the Judgment in O.S.No.7718 of 1988 on 19.09.1992 as among other things observed that 'as per Ex.A.1 Family Settlement dated 09.11.1984 the amount due to P.W.1 (Appellant/Plaintiff) has been paid and no amount is due to him and resultantly dismissed the suit with costs'. 3.Before the trial Court 1 to 3 issues have been framed for adjudication in the main case in O.S.No.7718 of 1988. However, before the trial Court O.S.No.7718 of 1988 and O.S.No.11488 of 1987 have been tried in common and witnesses P.W.1 and 2 have been examined and Exs.A.1 to A.15 have been marked. Also Ex.C.1 has been marked on the side of the Court. The trial Court delivered a common Judgment in the aforesaid suits on 29.09.1992. https://hcservices.ecourts.gov.in/hcservices/ 4.Feeling aggrieved against the Judgment and Decree of the trial Court made in O.S.No.7718 of 1988 dated 29.09.1992, the Appellant/Plaintiff as an aggrieved person has filed the present Appeal before this Court. 5.The points that arise for determination in this Appeal are: (i)Whether the Ex.A.1 Family Settlement dated 09.11.1984 is binding on the parties? (ii)Whether the Appellant/Plaintiff is entitled to claim a sum of Rs.42,333.24p together with subsequent costs and interest? The Contentions, Discussions and Findings on Point Nos. 1 and 2: 6.According to the Learned Counsel for the Appellant/Plaintiff, the trial Court has committed an error in dismissing the suit O.S.No.7718 of 1988 by Judgment dated 29.09.1992 and as a matter of fact the recitals in Ex.A.1 Family Settlement do not disclose that the amount has been paid to the Appellant/Plaintiff and indeed, it merely records that 1/3rd of the amount has been divided between the parties to the suit. 7.The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Respondents have not proved the payment of 1/3rd share in the sale proceeds of the land in 'Jatava' and in the absence of any evidence, evidencing the payment of the amount the trial Court should not have dismissed the suit. 8.According to the Learned Counsel for the Appellant/Plaintiff the correspondence between the parties as per Exs.4 to 12 and Ex.A.15 go to prove that the properties have been sold for Rs.1,50,000/- and that the Respondents have not paid even a single pie till date of the suit. 9.The main contention of the Learned Counsel for Appellant/Plaintiff is that Ex.A.1 dated 09.11.1984 is only a Family Suit/Agreement to divide the amount and however that the trial Court ought to have seen that D.W.1 in his evidence has stated that he received a sum of Rs.49,500/- at Madras and a sum of Rs.49,500/- before the Sub Registrar at Rajasthan and therefore the claim made by him that 1/3rd share amounting to Rs.16,500/- has been paid is a misleading and false one. 10.The Learned Counsel for the Appellant/Plaintiff projects a plea that the trial Court should have accepted the valuation as mentioned in Ex.A.6 Post Card dated 23.10.1982 sent to P.W.2 and held that the 1st Defendant has sold the joint family property for Rs.1,50,000/- and that as pleaded by the Plaintiffs and the 1st Defendant has agreed to share 1/3rd of Rs.1,00,000/- and therefore ought to have passed a Decree in favour of the Appellant/Plaintiff as prayed for by him in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 11.In short, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the trial Court has not taken note of the material aspects of the matter in proper perspective, which has resulted in an erroneous Judgment being passed against the Appellant/Plaintiff. 12.P.W.1 (Appellant/Plaintiff) in his evidence has stated that he is the Plaintiff in O.S.No.7718 of 1988 and that 2 to 7 Defendants are his brother's children and his brother Champalal, the eldest member has expired in the year 1961 and that their family possessed joint family properties and during the life time of his brother no partition has taken place between them and in the year 1984 Ex.A.1 Family Settlement/Agreement dated 09.11.1984 has been made between the 1st Defendant and themselves as regards the partitioning of the family properties and as per Ex.A.1 Family Settlement/Agreement when the Jatava properties have been sold the Defendants have not given him his 1/3rd share and Jatava properties have been sold for Rs.1,50,000/- and the 1st Defendant has informed to pay 1/3rd of Rs.1,00,000/- and he demanded his share from the 1st Defendant personally and later he has given a Notice Ex.A.2 dated 25.07.1985 and that the Defendants have not given a reply. 13.It is the further evidence of P.W.1 that on 01.03.1986 he has given Ex.A.3 Lawyer's Notice for which also the Defendants have not given any reply and it is incorrect to state that the Defendants have given his share of money on 13.09.1984. 14.P.W.1 in his cross-examination has stated that in Ex.A.1 it is not written that the money obtained out of selling of Jatava properties have been shared and even in the English Translation of Ex.A.1 Family Settlement it is not correct to state that the amount has been shared. In Ex.A.2 copy of Notice sent by P.W.2 dated 25.07.1985 it is mentioned as that the amount has been shared and his brother's son Sohan Raj has written a letter that the properties have been sold for Rs.1,50,000/- and however even in Ex.A.1 Family Settlement the quantum of amount derived from the properties sold has not been mentioned and after issuing notice one and a half years later he has filed the present suit. 15.P.W.2 in his evidence has deposed that the 1st Defendant's son has written a letter to him about the properties being sold and the said letter a xerox copy is Ex.A.4 dated 23.10.1982 and the 7th Defendant has sent a post card to him which is Ex.A.6 dated 23.10.1982 and in that letter it is mentioned that the 2nd Defendant has sold the Rajasthan property for Rs.1,50,000/- and since the 1st Defendant has agreed to pay Rs.1,00,000/- in the Agreement it is mentioned as Rs.1,00,000/- and in the said sum of Rs.1,00,000/- his share is Rs.33,333.33p and it is incorrect to state that the Defendants have given their share amount and in Ex.A.1 Family Settlement he has signed and P.W.1 has also signed in Ex.A.1 and it is incorrect to state that they have received a share amount and they have affixed their signature and in Ex.A.1 it is not mentioned about the amount to be paid and he has given a notice after a lapse of one year. https://hcservices.ecourts.gov.in/hcservices/ 16.It is the evidence of D.W.1 (2nd Defendant) that his mother is the 1st Defendant and in the two suits the Plaintiffs are his father's brothers and after the death of his father the family properties have been looked after by his uncles and in the year 1984 the family properties have been partitioned and Ex.A.1 is the Family Settlement and in Ex.A.1 Family Settlement the two Plaintiffs have signed and in Ex.A.1 Family Settlement it is written as the amount has been shared and in Ex.A.2 copy of Notice dated 25.07.1985, it is mentioned that the amount has been given in share by means of partition and this has been written by them in Ex.A.1 Family Settlement. 17.It is the further evidence of D.W.1 that the two Plaintiffs have read the contentions of Ex.A.1 Family Settlement and after receiving the money they have put the signature and in Ex.A.1 Family Settlement it is not written that the properties have been sold for Rs.1,50,000/- or for Rs.1,00,000/- and it is incorrect to state that each Plaintiff has to be paid a sum of Rs.33,333.33p. 18.The Appellant/Plaintiff in his plaint has stated that the entire amount of sale proceeds received by Smt. Vidhyabai (1st Defendant ) in respect of the land situated at Rajasthan belonging to the joint family and received from Poonamram, Tejaram, Chitraram and Bowri Devi have been utilised by her for carrying on business along with her four sons and she has failed to account for the sum in respect of the share belonging to the Appellant/Plaintiff that she had agreed to pay Rs.33,333.33p. 19.The Appellant/Plaintiff has also stated in the plaint that the Respondents/Defendants have failed and neglected to pay a sum of Rs.33,333.33p as per the compromise dated 09.11.1984 and further they are liable to pay interest at 12% per annum from 09.11.1984 till dated. 20.The Appellant/Plaintiff has filed the suit for recovery of a sum of Rs.42,333.24p together with subsequent interest and costs from the Defendants which is to be paid jointly and severally etc. 21.In the written statement filed by the 1st Respondent/ 1st Defendant and adopted by other Respondents/Defendants it is averred that the Appellant/Plaintiff has received the settled amount on 09.11.1984 itself and there is nothing due and payable to him and further the suit claim for R.33,333.33p with interest thereon is not maintainable and therefore the Defendants are not liable to pay the said amount and also that the claim for interest is not maintainable in law. 22.It is the case of the Appellant/ Plaintiff that the 1st Respondent/ 1st Defendant sold the properties for a sum of Rs.1,50,000/-, but informed that the properties have been sold for Rs.1,00,000/- and has agreed to divide the Sale Proceeds 1/3rd each. https://hcservices.ecourts.gov.in/hcservices/ 23.No letter has been written by P.W.1 to the 1st Respondent/ 1st Defendant claiming the amount / money before issuance of Exs.A.2 and A.3 Notice. Further, in Ex.A.6 (Tamil Translation of Hindi Post Card) it is stated that he heard that property has been sold for Rs.1,50,000/-. 24.Ex.C1 is the Free Translation of the Family Settlement Ex.A.1 dated 09.11.1984. In Ex.C.1 Free Translation of Ex.A.1 Family Settlement in English it is mentioned as follows: "... (ii)The value of the land known by the name of 'Jatva' is divided into 1/3 each." 25.At this stage it is apt for this Court to recall the English Translation of Ex.A.1 Family Settlement dated 09.11.1984 furnished by the Appellant/Plaintiff wherein it is mentioned as below: "... (2) We have divided the amount of the 1/3rd land named by Jatawa." 26.Even in the English Translation of Ex.A.1 Family Settlement furnished by the Appellant/Plaintiff, it is mentioned that they have divided the amount of the 1/3 land named by 'Jatva' and even in Ex.C.1 the Commissioner has also mentioned that 'the value of the land known by the name of Jatva is divided into 1/3 each'. Therefore, it is to be construed that as indicated in Ex.A.1 Family Settlement and in Ex.C.1 (English Tanslation of Ex.A.1 by the Commissioner) P.W.1 and P.W.2 have divided the value of the land into 1/3rd and that the amount has been paid/received. Also from the other Clauses of Ex.A.1 it is clear that the parties have taken possession of the properties of their share even on the date of Ex.A.1 itself and they have full right to enjoy their property. As a matter of fact Ex.A.1 Family Settlement dated 09.11.1984 binds the parties to the document and since the share amount of P.W.1 has been paid as per Ex.A.1, it is held by this Court that Ex.A.1 Family Settlement dated 09.11.1984 is binding on the parties to the document and however that the Appellant/Plaintiff is not entitled to the suit amount since nothing permits to be paid to him as his share amount and the two points are answered against the Appellant/Plaintiff accordingly. 27.In the result, the Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the trial Court viz., the Learned II Additional Judge, City Civil Court, Chennai in O.S.No.7718 of 1988 dated 29.09.1992 are affirmed by this Court for the reasons assigned in this Appeal. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar va https://hcservices.ecourts.gov.in/hcservices/ To 1. The II Additional Judge, City Civil Court, Chennai. 2. The Section Officer, VR Section, High court Madras. + 1 cc to Mr.V. Raghavacharri, Advocate SR.77189 A.S. No. 648 of 1994 LA(CO) Eu 9.11.10 https://hcservices.ecourts.gov.in/hcservices/