IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 06.08.2009 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.533 of 2007 & M.P.Nos.1 and 2 of 2007 & Cross Objection No.48 of 2008. 1. R.Suburathinam 2. N.S.N.Karunanithi 3. U.Malliga 4. U.Sumangala 5. U.Priya 6. Minor Sathiyanarayan rep. By his mother and natural guardian Malliga 7. N.Karthigeyan 8. N.Mohankumar 9. N.Palanikumar .. Appellants in A.S.533/07 and respondents in Cross Objection No.48 of 2008/Plaintiffs Vs. 1. T.Govindaraj 2. P.T.Rajan @ G.Ponnambala Thiyagarajan 3. Kandasamy @ G.Panneer Selvam 4. D.G.Shanmuga Sundaram ... Respondents in A.S.No.533/07 & cross appellants in Cross Objn.No.48 of 2008/Defendants Appeal against the judgment and decree dated 14.03.2007 passed by the learned Additional District Judge (Fast Track Court No.2), Coimbatore in O.S.No.25 of 2005 and counter claim. For appellants in A.S.533/07 and respondents in Cross Objection No.48 of 2008 :: Mr.T.P.Manoharan https://hcservices.ecourts.gov.in/hcservices/ For respondents in A.S.No.533/07 & cross appellants in Cross Objn.No.48 of 2008 :: Mr.T.R.Rajagopalan, S.C. For Mr.S.Senthilkumar J U D G M E N T Animadverting upon the judgment and decree dated 14.03.2007, passed by the learned Additional District Judge (Fast Track Court No.2), Coimbatore in O.S.No.25 of 2005 and the counter claim, this appeal is focussed. 2. Broadly but briefly, narratively but precisely, the facts as stood exposited from the plaint could be portrayed and parodied thus: The suit properties described in the 'A' and 'B' schedules appended to the plaint originally belonged to the plaintiffs' paternal grand mother, Thirumalai Ammal, who derived title to the suit properties through her paternal ancestors. The patta stood in the name of Thirumalai Ammal in respect of the 'A' scheduled property, which is an agricultural land measuring an extent of 11.66 acres. The 'B' scheduled property, which is a house property also came to be vested with Thirumalai Ammal from her paternal ancestors. After the death of Thirumalai Ammal, her only son Thiruvenkadam Pillai, derived title to the suit properties and he was in possession and enjoyment of the same. Thiruvenkadam Pillai had one son and one daughter, namely the deceased first plaintiff Booshanambal, and D1, Govindaraju Pillai. The said Thiruvenkadam Pillai died intestate on 04.02.1963 leaving behind the first plaintiff, Booshanambal and D1, Govindaraju Pillai as his only legal heirs and they derived absolute title to the suit properties and each of them were entitled to half share in those properties. D1, along with his sons D2 to D4, are looking after the 'A' scheduled property and they are sharing the income from it with the plaintiffs. The first plaintiff Booshanambal, along with her legal heirs P2 to P10 have been in possession and enjoyment of the 'B' scheduled property for over 40 years. The said Booshanambal, the first plaintiff died on 30.11.2004 leaving behind the plaintiffs 2 to 10 as her legal heirs to inherit her properties. The sons of the plaintiffs and the defendants 3 and 4 have been jointly running a Milk Dairy in the 'A' scheduled property. Subsequently, bad blood started running in the relationship of the plaintiffs and the defendants. Hence the suit for partition of 'A' and 'B' scheduled properties into equal shares and for allotting one share to the plaintiffs. 3. Denying and refuting, challenging and impugning, the https://hcservices.ecourts.gov.in/hcservices/ allegations/averments in the plaint, the defendants filed the written statement, the gist and kernel of them would run thus: Thirumalai Ammal's husband was Kandasamy Pillai, whose maternal uncle was Subbiah Pillai, who was living in unmarried state under the care and custody of Kandasamy Pillai. While so, Kandasamy Pillai purchased an extent of 25.18 acres including the 'A' scheduled property in the name of Subbiah Pillai during the year 1917. Out of the total extent of 25.18 acres, an extent of 2.06 acres was acquired by the Railway Department and the remaining extent of 23.12 acres was in possession of Kandasamy Pillai, who enjoyed it as absolute owner and died in the year 1933 leaving behind his widow, the said Thirumalai Ammal @ Seethammal and their only son Thiruvenkadam Pillai. After the death of Kandasamy Pillai, the said property devolved upon Thiruvenkadam Pillai and his only son Govindaraju Pillai. It so happened that after the death of Kandasamy Pillai, Thiruvenkadam Pillai and his son Govindaraju Pillai along with Thirumalai Ammal, the widow of Kandasamy Pillai, mortgaged the entire extent of 23.12 acres of land during the year 1933. Even though Subbiah Pillai was alive at that time, he never laid any claim over the said property. 4. On 25.11.1935, the same set of people sold an extent of 11.46 acres to third parties and Subbiah Pillai was a consenting party to the said sale as he signed as a witness. The said Thiruvenkadam Pillai and his son Govindaraju Pillai, enjoyed the suit property jointly in their capacity as equal owners till Thiruvenkadam Pillai died in the year 1963. As such, the allegations to the contrary in the plaint are false. Thiruvenkadam Pillai never treated the 'A' scheduled property as his self acquired property, but he had thrown it into the Hindu hotchpot and Thiruvenkadam Pillai and his son Govindaraju Pillai (D1) became co-parceners, entitled to equal shares in the joint family property. Thiruvenkadam Pillai, on 01.02.1963, executed a registered Will bequeathing his share in the suit properties in favour of defendants 2 and 3 and under the same Will, he also bequeathed his share in the Companies to Booshanambal, the first plaintiff, and her daughter Devi and grand daughters Sumathi and Premavathi. The said Will was acted upon and under that Will, the first plaintiff and her descendants derived benefits also. The first plaintiff and her husband Narayana Swamy approached D1 during the year 1970 for help and hence they were allowed to occupy a portion of the 'B' scheduled property as permissive occupiers out of mere sympathy. Accordingly, they prayed for dismissal of the suit. Over and above such prayer for dismissal, the defendants also prayed for the following reliefs as counter claim: "(a) directing the plaintiffs and their family to clear out of the suit property on or before a date to be fixed by this Hon'ble Court, failing which to clear them https://hcservices.ecourts.gov.in/hcservices/ out by a decree of mandatory injunction; (b) directing the plaintiffs those squatting on the property to pay damages as fixed by this Hon'ble Court from 01.12.2004 until they clear out of the suit property to 2nd defendant; (c) directing the plaintiffs to pay the defendants the costs of this suit." (extracted as such) 5. The plaintiffs filed the reply statement denying and refuting the averments/allegations in the written statement as well as in the counter claim. The plaintiffs also denied the very genuineness of the Will allegedly executed by Thiruvenkadam Pillai. The plaintiffs never admitted that they are only permissive occupiers or gratuitous occupiers of the 'B' scheduled property. Accordingly, they prayed for dismissal of the counter claim. 6. The defendants filed rejoinder, denying and refuting the contentions of the plaintiffs in the reply statement. Both sides also pleaded limitation as against the claim of each other. 7. The trial Court framed the issues. During trial, on the side of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A27 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B48 were marked. 8. Ultimately the trial Court dismissed the suit of the plaintiffs, but partly decreed the counter claim of the defendants by granting mandatory injunction as against the plaintiffs, to vacate the 'B' scheduled property within a period of one year. 9. Challenging and impugning the dismissal of the plaintiffs' claim and also the granting of the relief mandatory injunction in favour of the defendants, the plaintiffs, filed this appeal on various grounds, inter alia thus: The trial Court fell into error in dismissing the suit of the plaintiffs and in granting the relief in favour of the defendants. Without considering the oral and documentary evidence, the trial Court simply decided the matter. The trial Court failed to hold that Ex.B46, the Will was not proved. Even as per the defendants' case, on the death of Thiruvenkadam Pillai, the first plaintiff, Booshanambal and D1, Govindaraju Pillai, inherited the 'A' and 'B' scheduled properties and each of them were entitled to half share and the trial Court should not have dismissed the suit. The factum of jointly running a Dairy Farm in the 'A' scheduled property as put https://hcservices.ecourts.gov.in/hcservices/ forth before the trial Court was not considered by it. Ex.A19, the lease deed executed in favour of Subbiah Pillai would disprove the case of the defendants' theory. 10. Even assuming Ex.B46 is the genuine Will, as per the said Will, Thiruvenkadam Pillai bequeathed only his undivided half share in the suit 'A' and 'B' scheduled properties and he retained the remaining half share with him and on his death, the first plaintiff, Booshanambal and D1, Govindaraju Pillai should be taken as the ones inherited the same and accordingly, if viewed, the plaintiffs would be entitled to 1/4th share in the 'A' and 'B' scheduled properties. However, Ex.B46 is not a genuine Will as it purported to have emerged on 01.02.1963, whereas, Thiruvenkadam Pillai died on 04.02.1963 within 72 hours of the emergence of the Will. Hence in such a case, it cannot be taken that Thiruvenkadam Pillai at the time of executing the said Will was in a sound state of mind. The oral evidence of P.Ws.1 to 3 and Exs.A2 to 18 and A24 to A26 would clearly demonstrate and display that the first plaintiff, Booshanambal was exercising her right over the 'A' scheduled property along with her sons. The oral and documentary evidence also proved that the first plaintiff along with her family was residing in the 'B' scheduled property even long prior to 1970. Accordingly, the appellants/plaintiffs pray for setting aside the judgment of the lower Court and for decreeing the suit for partition and for dismissing the counter claim. 11. Heard both sides. 12. The parties are referred to hereunder according to their litigative status before the lower Court. 13. The points for consideration are as follows: (1) Whether Thirumalai Ammal was the absolute owner of the 'A' and 'B' scheduled properties as pleaded by the plaintiffs and if so, in what capacity the plaintiffs claim half share in those suit properties? (2) Whether there was joint family existed among Thiruvenkadam Pillai and Govindaraju Pillai (D1) and whether the suit properties happened to be the joint family properties? (3) Whether the Will, Ex.B46 was proved to be a genuine Will by the defendants? (4) Whether the plaintiffs are only permissive occupiers in the 'B' scheduled property? (5) Whether the plaintiffs are entitled to half share in the https://hcservices.ecourts.gov.in/hcservices/ suit property and accordingly for a preliminary decree for partition? (6) Whether the defendants are entitled for mandatory injunction as prayed by them? (7) Whether there is any infirmity in the judgment and decree of the trial Court? (8) To what relief? POINT NOS.1 AND 2: These two points are taken together for discussion, as they are inter-linked and inter-woven with each other. 14. The epitome and the long and short of the contention of the rival parties could be set out thus: The relationship among the parties is an admitted one. The plaintiffs would try to project the case as though the 'A' and 'B' scheduled properties originally belonged to Thirumalai Ammal, who got it from her paternal side and consequently, she is entitled to the property. Whereas, the defendants would contend that Kandasamy Pillai, the husband of Thirumalai Ammal was the absolute owner of the suit property and consequent upon his death, it devolved upon Thiruvenkadam Pillai and his son Govindaraju Pillai (D1), as they constituted a Hindu joint family and accordingly entitled to half share each and that even the half share of Thiruvenkadam Pillai was given to D1's descendants by virtue of the Will. Accordingly, the defendants would try to deprive the plaintiffs of any share in the suit properties. 15. At the first instance, it is just and necessary to analyse as to whether the contention of the plaintiffs that Thirumalai Ammal happened to be the absolute owner of the suit properties is true. The genealogy as found set out in the plaint is obviously a truncated one. However, it is set out hereunder: https://hcservices.ecourts.gov.in/hcservices/ GENEALOGY Thirumalaiammal W/o Kandasamy Pillai Thiruvenkadampillai T.Govindarau Pillai(D1) Boosanambal (died) Plaintiff P.T.Rajan @ Kandasamy @ T.G.Shanmuga Sundaram Ponnambala Panner Selvam (D3) (D4) Thiakarajan(D2) 16. Whereas in the written statement the defendants set out an elaborate genealogy, which is also set out hereunder: Arangaswamy Pillai Lakshmanan Pillai Subbiah Pillai Nagammal Meenakshi Papamal (no issues) (no issues) (no issues) Govindaswami (Husband) Two sons and 4 daughters Kandaswami Pillai including Thirumalai Ammal @ Thirumalai Ammal @ Seethammal Seethammal Thiruvenkadam Pillai Govindaraju Pillai Booshanambal D1 (1st plaintiff) 3 sons (D2 to D4) and 4 Daughters (Plaintiffs 2 to 10) https://hcservices.ecourts.gov.in/hcservices/ 17. A mere reading of those two genealogies coupled with the oral evidence and documentary evidence available would exemplify that both groups tried their level best to gain advantage to the disadvantage of the other by interpreting the inheritance as per their respective genealogies. During trial, ultimately it got boiled down to the following facts that Subbiah Pillai happened to be the son of Arangaswamy Pillai. Subbiah Pillai had one brother by name Lakshmanan Pillai. The said Subbiah Pillai also had three sisters, out of those three sisters, one sister Meenakshi had his son by name the said Kandaswamy Pillai, the husband of Thirumalai Ammal. As such, so far Kandaswamy Pillai is concerned, Subbiah Pillai happened to be his maternal uncle. In the plaint there is no whisper as in what way Thirumalai Ammal @ Seethammal could claim herself as the legal heir of said Subbiah Pillai. There is also no indication in the plaint that Subbiah Pillai was the original owner of the suit property by virtue of Ex.B1, the sale deed dated 17.07.1917. However, it is the contention of the defendants that the said Kandaswamy Pillai purchased the 'A' scheduled suit property along with other properties in the name of his paternal uncle Subbiah Pillai as per Ex.B1. As per the genealogy furnished by the defendants, Thirumalai Ammal happened to be the daughter of Lakshmanan Pillai, the brother of said Subbiah Pillai. As such, there is no rhyme or reason on the part of the plaintiffs in claiming that the said Thirumalai Ammal is the absolute owner of the said 'A' scheduled property through her paternal side. 18. However the plaintiffs would submit that as per patta, Ex.P.9, the 'A' scheduled property was treated as the absolute property of Thirumalai Ammal and accordingly the plaintiffs would develop their case that after the death of Thirumalai Ammal, her two children, namely D1, Govindaraju Pillai and the first plaintiff Booshanambal, were entitled to half share and accordingly the plaintiffs claim half share. 19. At this juncture, the learned Senior Counsel for the defendants would develop his argument to the effect that once it is found that the plaintiffs have not come forward with the true facts and details, it is not open for the plaintiffs to cull out facts from the defendants' side evidence and try to get a decree for partition; depending upon the facts set out in the plaint alone, the defendants could take defensive stand in the written statement and as such, this Court once comes to the conclusion that the plaintiffs have not come forward with the whole truth, then the suit has to be dismissed. However, I would like to highlight that such an argument cannot be countenanced. In a suit for partition, admittedly among relatives, simply because the contention of the plaintiffs based on certain facts cannot be granted, but reliefs could be granted by the Court to certain extent on some other grounds, taking into account the over https://hcservices.ecourts.gov.in/hcservices/ all and the totality of the evidence available. 20. It is a common or garden principle of law that in a partition suit, the plaintiff is the defendant and the defendant the plaintiff. However, the learned Senior Counsel for the defendants would submit that if at all the defendants admit that the plaintiffs are entitled to some share, then the question of applying the said theory would arise. Once again, I would like to express my view that such an argument put forth on the defendants' side could not be countenanced for the reason that in a partition suit, the plaintiffs cannot expect the defendants to admit their claim. Still the partition suit would continue to be a partition suit only and all the attributes of a partition suit would be applicable. 21. It is therefore clear that the contention on the plaintiffs' side that Thirumalai Ammal happened to be the absolute owner of the suit properties, because she inherited the property from her paternal side is not at all fortified by either oral or documentary evidence. But even the very narration of the case on the plaintiffs' side coupled with the narration of the defendants' side would display and disclose, that Thirumalai Ammal @ Seethammal was enjoying the suit properties along with her husband Kandaswamy Pillai, who also happened to be the descendant of the common ancestor. As per the version on the defendants' side, Kandaswamy Pillai can never be taken as the legal heir or descendant of Subbiah Pillai, as Subbiah Pillai admittedly happened to be the maternal uncle of Kandaswamy Pillai. No doubt it is not the defendants' case that Kandaswamy Pillai claimed title over the 'A' scheduled property on the ground that he was the legal heir of Subbiah Pillai, but the defendants would claim that Kandaswamy Pillai purchased from out of his own sources, the 'A' scheduled property as per Ex.B1 in the name of Subbiah Pillai. As such, the onus of proof is on them to prove that Kandaswamy Pillai happened to be the original owner of the 'A' scheduled property as his self acquired property. 22. It is worthwhile to point out that neither of the parties tried to press into service the Benami Transaction (Prohibition) Act, 1988 and also about the concepts retrospective and retroactive operations. 23. Be that as it may, the defendants should prove that Kandaswamy Pillai purchased the property in the name of Subbiah Pillai as per Ex.B1. The recitals in Ex.B1, the certified copy of the sale deed dated 17th July 1917 would evince and evidence that the said Subbiah Pillai purchased the 'A' scheduled property along with other items by paying a cash consideration of Rs.5,000/-. As such, absolutely there is no indication in the recitals of Ex.B1 that there is any semblance of Benami Transaction. https://hcservices.ecourts.gov.in/hcservices/ 24. It is quite obvious that Ex.B1 emerged during the year 1917 and as correctly pointed out by the learned counsel for the plaintiffs, during the trial, none of the witnesses examined on the defendants' side could be construed as competent to speak about the alleged Benami transaction, as the transaction took place in the year 1917. As such, in the absence of any clinching evidence relating to Benami Transaction, it has to be seen as to whether from the other available evidence any such inference could be drawn relating to Benami. The learned counsel for the plaintiffs would place reliance on Ex.A19, the certified copy of the registered lease deed dated 15th February 1923 executed by one Kandaswamy Pillai S/o Ponniapillai relating to the 'A' scheduled property in favour of Subbiah Pillai. If really Kandaswamy Pillai purchased the 'A' scheduled property in the name of Subbiah Pillai, certainly Ex.A19 during the year 1923 would not have emerged in favour of Subbiah Pillai and as such, I could see considerable force in the argument put forth on the side of the plaintiffs that the theory of Benami as set forth on the side of the defendants is nothing but an untenable plea dished out for the purpose of this case. 25. The learned Senior Counsel for the defendants would place reliance on Ex.B3, the certified copy of the mortgage deed executed by Thiruvenkadam Pillai, Govindaraju Pillai (D1) and Thirumalai Ammal @ Seethammal in favour of a third party mortgaging the 'A' scheduled property and develop his argument that even during the life time of Subbiah Pillai, the said Thiruvenkadam Pillai, son of Kandaswamy Pillai along with others mortgaged the 'A' scheduled property and that would connote and denote, exemplify and expatiate that the 'A' scheduled property happened to be the exclusive property of Kandaswamy Pillai which came into the hands of his son Thiruvenkadam Pillai and Thiruvenkadam Pillai's son Govindaraju Pillai and that Thirumalai Ammal was added only as a formal party in that mortgage deed. 26. Whereas, by way of torpedoing and pulverising the argument as put forth on the side of the defendants, the learned counsel for the plaintiffs would advance and fatten up his argument to the effect that Subbiah Pillai died even in the year 1930; there is no indication that Subbiah Pillai was alive as on the date of emergence of Ex.B3; if really Kandaswamy Pillai happened to be the absolute owner and it allegedly devolved upon Thiruvenkadam Pillai and his son D1, then there would not have been no necessity for adding Thirumalai Ammal also as one of the parties in the Ex.B3; the reference to one Subbiah as witness in Ex.B2, the sale deed dated 25th November 1935 is not proved to be the said Subbiah, the original owner as contemplated in Ex.B1 and as such the argument as put forth on the side of the defendants is not tenable. 27. Whereas, the learned Senior Counsel for the defendants https://hcservices.ecourts.gov.in/hcservices/ would submit that Ex.B2, the certified copy of the sale deed dated 25th November 1935 would reveal and convey that the said Thiruvenkadam Pillai, D1/ Govindaraju Pillai and Thirumalai Ammal @ Seethammal executed the sale deed alienating part of the property covered under Ex.B1 and that shows that Subbiah was not the owner and that Subbiah also signed as a witness in the deed. 28. When this Court put a question to the defendants' side as to how they would be justified in contending that the reference made to one Subbiah as witness in Ex.B2, refers actually to the said Subbiah, the original owner contemplated in Ex.B1, no plausible answer was forthcoming. As such, on the one hand the plaintiffs would contend that Subbiah Pillai died even in the year 1930 and thereafter alone Exs.B2 to B4 emerged. Whereas, the contention of the defendants is that even during the life time of Subbiah Pillai, those exhibits emerged and that Subbiah Pillai never objected to any such transaction and thereby, he signified and agreed to the fact that he was only a name lender in Ex.B1. 29. The onus of proof is on the defendants to prove the Benami nature of the transaction involved in Ex.B1. But my discussion supra would indicate and exemplify that absolutely there is no shred or shard, iota or molecular extent of evidence to establish and prove that the property was purchased by Kandaswamy Pillai in the name of Subbiah Pillai. There should atleast be some explanation as to what actuated and accentuated, propelled and impelled Kandaswamy Pillai to purchase such vast extent of property in the name of his maternal uncle, who was older than him admittedly. Normally whenever some benami transaction takes place, there would be some hidden reason or some reason behind it. Here, absolutely there is no plausible reason found detailed and delineated before the Court as to why Kandaswamy Pillai should purchase the property in the name of Subbiah Pillai who had no issues. Furthermore, benami nature of the transaction cannot be presumed also. Here Ex.P19 would torpedo the very plea of benami as put forth on the side of the defendants for the reason that if really Kandaswamy Pillai was the real owner, Subbiah Pillai would have acted during the life time of Kandaswamy Pillai as owner over the