In the High Court of Judicature at Madras Dated: 06.06.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal Nos.792 and 793 of 1993 Pavalayee ..Appellant in S.A.No.792/1993 1. Venkatachalam 2. Govindan .Appellants in S.A.No.793/1993 ..vs.. Periannan Thangayee Kandaswami(died) Saroja Prema Thilagam Tamil Selvi Nagalakshmi Raj Kumar ..Respondents in S.A.792/93 (R4 in S.A.No.792/93is recorded as LR.of the deceased Kandaswami. R5 to R9 are brought on record as LRs.of the deceased Kandaswami vide Order of Court dt.16.6.2006 made in CMP.No.3902 to 3907 of 2004) Periannan @ Ponnumalai Kandaswamy (died) Pavalayee @ Pavayee Nallayee @ Poppayee Saroja Prema Thilagam Tamilselvi Nagalakshmi Raj Kumar ...Respondents in S.A.No.793/93 (Respondents 5 to 10 brought on record as legal representative of the deceased 2nd Respondent vide order of Court dated 16.6.2006 in CMP.No.3902 to 3907/04.) Second Appeals filed under section 100 of Civil Procedure Code against the common judgment and decrees dated 06.12.1989 made in A.S.Nos.37 and 94 of 1989 on the file of II Additional District Court, Salem, reversing the common judgment and decrees dated 29.01.1988 in O.S.Nos.564 of 1984 and 755 of 1983 respectively on the https://hcservices.ecourts.gov.in/hcservices/ file of Principal District Munsif Court, Salem. For Appellants : Mr.V.Ayyathurai For Respondents : Mr.P.Mathivanan for R1, 2 & 4 to 9 in S.A.No.792/93 and for RR1 and 5 to 10 in S.A.No.793/93. COMMON JUDGMENT Since common issues are involved and the parties are same, both appeals are disposed of by the common judgment. 2. S.A.No.792 of 1993 has been filed by the plaintiff, by name, Pavalayee, in O.S.No.564 of 1984 on the file of Principal District Munsif Court, Salem, against the judgment and decree dated 06.12.1989 made in A.S.No.37 of 1989 on the file of II Additional District Court, Salem, reversing the finding of the trial court. 3. S.A.No.793 of 1993 has been filed by defendants 1 and 2, by name, Venkatachalam and Govindan, in O.S.No.755 of 1983 on the file of Principal District Munsif Court, Salem, against the judgment and decree dated 06.12.1989 made in A.S.No.94 of 1989 on the file of II Additional District Court, Salem, whereby the judgment and decree of the trial court were set aside and a preliminary decree was granted. 4. The parties in O.S.No.755 of 1983 are related thus: Uruma Nadar | | ---------------------------------------------- | | | | Sreeranga Nadar (2 wives) Palaniappa Nadar (1st defendant) | | | first wife second wife (Sreerangayee) (Pavalayee) | | ----------------------- --------------------- | | | | | | | | Periannan Kandasami Venkatachalam Govindan (Plaintiff) (D4) (D2) (D3) One Uruma Nadar is a common ancestor of Hindu joint family and he had two sons Sreeranga Nadar and Palaniappa Nadar. The said Sreeranga Nadar had two wives, (i) Sreerangayee and (ii) Pavalayee and he had couple of sons through each wife. Periannan @ Ponnumalai and Kandasami are the sons born to the first wife Sreerangayee and Venkatachalam and Govindan are the sons born to the second wife Pavalayee. https://hcservices.ecourts.gov.in/hcservices/ 5. Periannan filed a suit in O.S.No.755 of 1983 (relating to S.A.No.793 of 1993) against his father and his three brothers for a preliminary decree of partition and separate possession of his 1/5th share in the suit properties consisting seven items, stating that originally the suit properties belonged to his grandfather Uruma Nadar, who died intestate and thereafter, his sons, Sreeranga Nadar and Palaniappa Nadar, divided the entire family properties among themselves as per the registration deed dated 25.12.1959 by metes and bounds, in which, the suit properties were allotted to the share of Sreeranga Nadar, father of the plaintiff Periannan. Sreeranga Nadar, as a kartha of joint family consisting of himself, the plaintiff and his brother Kandsamy and two sons born to the second wife, managing the entire suit properties, which are ancestral in nature. Though the plaintiff is living separately, he is deemed to be living jointly along with other members of a joint family. He demanded partition of his 1/5th share, but his father has not done so. Hence, Periannan filed the said suit for partition and separate possession of his 1/5th share in the suit properties. 6. The said suit was resisted by the 1st defendant, his father Sreeranga Nadar stating that the suit properties were already divided long before and the plaintiff was given his share in the joint family properties. Since the partition was already effected, there is no joint family between himself and the plaintiff. In fact, the plaintiff had sold his share of the properties to the third parties and hence, no more division is necessary and the plaintiff is not entitled to 1/5th share in the suit properties. 7. The 4th defendant Kandasamy, the plaintiff's own brother, filed a written statement stating that he is also entitled to 1/5th share in the partition from his father. 8. The other suit O.S.No.564 of 1984 (S.A.No.793 of 1993) has been filed by the second wife of Sreeranga Nadar, viz., Pavalayee as against the sons born through the first wife to Sriranga Nadar, viz., Periannan and Kandasami and their respective wives for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit properties. It is the case of Pavalayee that she is the owner of the suit properties consisting three items and herself and Palaniappa Nadar (the brother of her husband) had purchased the properties on 16.10.1942 and 04.07.1956 and they had divided the properties among themselves and by virtue of a partition deed dated 25.12.1959 between themselves, the first item of the suit properties fell to her share, in which the defendants have no right whatsoever. So far as item No.3 (first two items in the other suit), originally the same was allotted to the share of her husband Sreeranga Nadar during the partition between himself and his brother Palaniappa Nadar on 25.12.1959 and thereafter, the said Sreeranga Nadar had executed a settlement deed dated 19.12.1982 in favour of Pavalayee in respect of item No.3. Thus, Pavalayee had obtained possession and enjoyment of the properties. Patta was issued in her name and she has been paying kist and the electricity charges for the electric motor in the well. Since https://hcservices.ecourts.gov.in/hcservices/ the plaintiff refused the demand made by the defendants to sell the suit properties in their favour, they made attempts to evict forcibly from the suit lands and under such circumstances, she filed the suit for injunction. 9. The said suit was resisted by the defendants denying the purchase of properties by her and Palaniappa Nadar and also the partition between themselves and stated that the suit properties are not the private properties of Pavalayee. Item No.3 property could not be settled by Sreeranga Nadar in favour of Pavlayee since it forms part of the joint family properties of his four sons. Therefore, she is not entitled to get injunction. 10. The trial court framed necessary issues and tried both the suits together and recorded evidence in O.S.No.755 of 1983. On the side of the plaintiff, Periannan examined himself as P.W.1 and marked Exs.A-1 to A-15 and on the side of defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-5 were marked. The trial court, after considering entire evidence both oral and documentary, dismissed the suit for partition (O.S.No.755 of 1983 filed by Periannan) and decreed the suit O.S.No.564 of 1984 filed by Pavalayee. Aggrieved over the same, Periannan filed A.S.No.37 of 1989 against the injunction granted in the suit filed by Pavalayee and A.S.No.94 of 1989 against the dismissal of the suit filed by him for partition, before the District Court, Salem. The II Additional District Court, Salem, by its common judgment dated 06.12.1989, partly allowed the appeal in A.S.No.37 of 1989 by confirming the injunction granted in respect of items 1 and 2 properties and rejected the injunction granted in respect of item No.3 to Pavalayee. So far as A.S.No.94 of 1989 is concerned, the lower appellate court granted a preliminary decree of partition and separate possession of 1/5th share from and out of the properties allotted to Sreeranga Nadar as per Ex.A-8 partition deed dated 25.12.1959. Questioning the rejection of injunction in respect of 3rd item of the property in A.S.No.37 of 1989, Pavalayee filed S.A.No.792 of 1993 and Venkatachalam and Govindan, the sons of Pavalayee and Sreeranga Nadar filed S.A.No.793 of 1993 against the preliminary decree granted by the lower appellate court in A.S.No.94 of 1989. During pendency of both appeals, Kandasamy, the brother of Periannan and one of the sons of Sreeranga Nadar born through his first wife Sreerangayee, died and his legal representatives were brought on record as respondents 5 to 10. 11. In addition to the substantial question of law framed by this Court at the time of admission of the second appeals, as requested by both sides, at the time of hearing, the additional substantial questions of law are framed for consideration: 1. Whether the judgment and decree of the lower appellate Court amounting to error of law in allowing I.A.No.494 of 1989 filed for receiving Exs.A-16 to A-18 as additional evidences and reversed the well considered judgment of the trial court solely on the basis of such additional evidence while refusing preventive relief of permanent injunction with regard to item https://hcservices.ecourts.gov.in/hcservices/ No.3 of the suit schedule properties in O.S.No.564 of 1984 and would render the judgment and decree of the lower appellate Court as invalid and opposed to law ? 2. Whether the judgment and decree of the lower Appellate Court constitutes error of law for want of deciding the material issues of (i) not challenging the settlement deed under Ex.B- 2 dated 19.12.1982; (ii) failure to consider the conclusion of the trial court that the suit item No.3 is not forming part of properties in Ex.A-8 partition deed allotting share to Sreeranga Nadar ? (iii) the conduct of plaintiff in not seeking partition with reference to the house property which is admittedly a joint family property which would establish prior partition between the plaintiff and Sreeranga Nadar along with others ? 3. Whether the judgment and decree of the lower appellate court is vitiated in view of settled principle of law that no quantum of evidence can be let in without substratum of pleading inasmuch as there is no averment in the amended plaint in O.S.No.755 of 1983 seeking partition challenging the settlement made in favour of Pavalayee/appellant under Ex.B-2 dated 19.12.1982 or for seeking the relief of setting aside Ex.B-2 ? (4) Whether the judgment and decree of the lower appellate Court is vitiated for want of considering the claim of Pavalayee/appellant in terms of Section 14 of the Hindu Succession Act, 1956? 12. Heard the learned counsel for the parties and perused the materials available on record. To avoid confusion, the parties are hereinafter referred to as per their ranking in S.A.No.792 of 1993. 13. It is the submission made by the learned counsel for the appellant Pavalayee and the other appellants that there are three items of properties in O.S.No.755 of 1983, out of which, items 1 and 2 are the individual properties of Pavalayee, who got the same in a partition between herself and Palaniappan, the brother of her husband. The lower appellate court has come to the conclusion that since items 1 and 2 are her individual properties, she is entitled for injunction in respect of those properties, against which, no appeal has been filed by the 1st respondent (Periannan). Therefore, the issue with regard to items 1 and 2 properties had become final. The dispute is only with regard to item No.3 in the injunction suit filed by Pavalayee. Item No.3 consists of two items; one is 83 cents in R.S.No.261/6 and another item is 42 cents in R.S.No.290/4 https://hcservices.ecourts.gov.in/hcservices/ totalling to 1.25 acres, which are the properties of item 1 and 2 in the partition suit filed by the 1st respondent. Apart from these two items, the 1st respondent Periannan sought for partition in respect of 5 other properties also. 14. So far as these two properties are concerned i.e.items 1 and 2 in the partition suit, they are allotted to the share of the husband of Pavalayee, viz., Sreeranga Nadar under the partition deed dated 25.12.1959 marked as Ex.A-8. The said Sreeranga Nadar executed a settlement deed in respect of those properties in favour of the appellant Pavalayee under Ex.B-2. Though it is contended by the 1st respondent Periyannan in the partition suit that since items 1 and 2 are ancestral properties, his father has no right to execute a settlement deed in favour of his second wife Pavalayee and hence, he is entitled to 1/5th share in the suit properties, it is the submission of the learned counsel for the appellants that the execution of settlement deed is only a voidable transaction and unless it is set aside, the settlement deed is valid. In the instant case, absolutely, no prayer has been made to set aside the settlement deed, more so, it is the case of the 1st respondent that the said Sreeranga Nadar, as a Kartha of Hindu Joint Family, has no right to execute settlement deed in respect of ancestral properties. Under such circumstances, if the plaintiff has got any grievance that under the settlement deed, his share also has been transferred, he ought to have made a prayer to set aside the settlement deed. But, the lower appellate court, without considering these aspects, granted a preliminary decree with regard to items 1 and 2 of the properties stating that the 1st respondent Periannan is entitled to 1/5th share of the properties allotted to Sreeranga Nadar under Ex.A-8 partition deed dated 25.12.1959. 15. Learned counsel for the appellants further submitted that the 1st respondent's father Sreeanga Nadar had adduced evidence that already a partition has been effected in respect of the joint family properties; 56 cents has been allotted to the share of Periannan; he had sold the same to third parties; he had separated himself from the joint family and settled at Kallakurichi. In view of the partition that had already been taken place, there is no question of existence of joint family properties for partition and therefore, once more partition for suit schedule properties does not arise in this case. The learned counsel has also relied upon the judgments reported in GURAMMA .vs. MALLAPPA (AIR 1964 SC 510), SUNIL KUMAR .vs. RAM PARKASH ((1988)2 SCC 77) and R.KUPPAYEE .vs. RAJA GOUNDER (AIR 2004 SC 1284), in support of his contention that the alienation of joint family properties by Kartha is valid. 16. With regard to the allotment of 56 cents to the 1st respondent, it is the submission of the learned counsel for the appellant that it was the case of the 1st respondent that 56 cents allotted to him is the property of his mother, who got the same under a settlement deed executed by his grandfather Uruma Nadar and his father Sreeranga Nadar on 25.01.1942; after the demise of his mother, the property came into his hands and it was not the joint family https://hcservices.ecourts.gov.in/hcservices/ property and therefore, it cannot be said that 56 cents was allotted to Periannan in the partition. In order to prove the same, absolutely, no pleading in the written statement filed by the 1st respondent in the suit by Pavalayee and he has not marked any document before the trial court, whereas before the lower appellate court, by way of additional evidence, the 1st respondent filed three documents Exs.A-16 to A-18; out of which, Ex.A-17 is the settlement deed dated 25.01.1942 executed by Uruma Nadar and Sreeranga Nadar in favour of Periannan's mother Sreerangayee and Pavalayee. The lower appellate court, by taking into consideration of these documents as additional evidence, has held that the 1st respondent got the property of 56 cents only from his mother and that it is not the joint family properties of Sreeranga Nadar and his four sons and granted the preliminary decree of partition and separate possession of 1/5th share in the other properties i.e.items 1 to 3 to the 1st respondent. In this regard, the learned counsel submitted that for receiving additional evidence, the lower appellate court has not assigned any valid reason. In the absence of any pleading with regard to the allotment of 56 cents, the lower appellate court ought not to have accepted the additional evidence; but, it had received the additional evidence, by giving a go-by to all the cardinal principles stipulated under Order 41 Rule 27 C.P.C., and arrived at a finding that the 1st respondent is entitled to partition as per Ex.A-8, partition deed dated 25.12.1959, by relying upon Ex.A-17, which is not legally sustainable. Therefore, the finding rendered by the lower appellate court based on additional evidence is liable to be set aside. Further, after execution of settlement deed, the properties settled in favour of Pavalayee are her absolute properties, as per Sections 14(1) & (2) of the Hindu Succession Act. In support of his contentions, the learned counsel has relied on the decisions reported in KRISHNA REDDI .vs. RAMIREDDY (AIR 1954 MADRAS 848), MAHAVIR SINGH .vs. NARESH CHANDRA ((2001) 1 SCC 309), PUSHPA BAI STALIN .vs. DHAYA POOMKAMAZH (AIR 2003 MADRAS 54) and MANGAYARKARASI AMMAL .vs. SURESH BAFNA (2010(4) CTC 339). 17. Countering the said submissions, the learned counsel for the 1st respondent submitted that the father of the 1st respondent Sreeranga Nadar adduced evidence as D.W.1 that the partition had already been effected. But, in order to prove the same, neither oral nor documentary evidence was produced as to what are the properties allotted to each of the co-parceners in the so-called partition. The learned counsel further submitted that had the theory of partition been true, they would have produced tangible evidence or at least they would have given particulars about the properties allotted to each of the co-parceners. Except making a bald statement in the evidence, no details were given in the so-called partition, which itself would prove the falsity of the case projected by the appellant. The learned counsel further submitted that without consent of the co-parcenars, the Kartha is not entitled to execute a settlement deed. Moreover, the plea that Kartha is entitled to execute a settlement deed in respect of joint family properties has not been raised before the courts below. The 1st respondent Periyannan was not aware of the settlement deed executed by his father in favour https://hcservices.ecourts.gov.in/hcservices/ of Pavalayee and only from the injunction suit filed Pavalayee in O.S.No.504 of 1984, he came to know that items 1 and 2 properties in the partition suit were settled in favour of Pavalayee. Since the plaintiff is not a party to the settlement deed, there is no need to make a prayer for setting side the settlement deed. In support of his contentions, the learned counsel has relied on the judgments reported in PONNAMMAL .VS. KANTHAMMAL (AIR 1952 MADRAS 552), IN RE THIRUPATHIAMMAL (AIR 1956 MADRAS 179), R.KUPPAYEE .vs. RAJA GOUNDER ((2004) 1 SCC 295), CHANDRASEKARAN .vs. PALANISAMY (2004(2) CTC 145) and SHANMUGAIAH .vs. THIRUMALAYANDI (2004(3) CTC 92). 18. With regard to the receipt of additional evidence by the lower appellate court, the learned counsel for the 1st respondent submitted that P.W.1 had categorically stated that he got 56 cents from his mother. Only in order to substantiate the said evidence, before the lower appellate court, Exs.A-16 to A-18 were marked. Therefore, no infirmity could be found in the finding rendered by the lower appellate court by accepting additional evidence. 19. In view of the above submissions made by the learned counsel on either side, the questions that arise for consideration are, (1) Whether the theory of earlier partition, as projected by the 1st respondent, is true ? (2) Whether the settlement deed executed by Sreeranga Nadar in favour of Pavalayee is a voidable one ? (3) Whether the appellnt is entitled for partition as per Ex.A-8 dated 25.12.1959 ? (4) Whether the reception of additional evidence by the lower appellate court is not legally sustainable ? 20. With regard to the first question, it is the submission of the learned counsel for the appellant that even before filing of the partition suit by the 1st respondent Periannan, there was a partition in the joint family, in which 56 cents land was allotted to him. To strengthen the same, he also relied upon the evidence of D.W.l Sreeranga Nadar, the father of the 1st respondent, who had stated in his evidence that the joint family properties were already partitioned, in which 56 cents were allotted to the 1st respondent Periannan. 21. On the contrary, it is the case of the 1st respondent that Uruma Nadar and Sreeranga Nadar had executed a settlement deed in favour of Sreerangayee and Pavalayee settling each 56 cents and after the demise of Sreerangayee, he got the same from his mother and the said property was not a joint family property, available for partition. Therefore, it is incorrect to state that already partition took place in respect of the joint family properties even before the filing of the suit. Though the settlement deed executed by Uruma Nadar in favour of the mother of the 1st respondent dated 25.01.1942 https://hcservices.ecourts.gov.in/hcservices/ was not marked before the trial court, he had spoken about the same in his evidence. The said settlement deed was marked as Ex.A-17 before the lower appellate Court. 22. It is pertinent to state that except the oral statement made by D.W.1, no other tangible evidence was produced to prove the case that already partition was effected in the joint family properties. Had the theory of partition been true, D.W.1 would have stated in his evidence to the effect that when the alleged partition took place, what are the properties allotted to each of the co-parceners, etc. But the evidence of D.W.1 is very vague with regard to the so-called partition among the co-parceners. Under such circumstances, there is no difficulty in coming to the conclusion that no partition had been taken place among the co-parceners before filing the suit. 23. The next question is, whether the 1st respondent is entitled for partition of his 1/5th share in the suit properties covered under Ex.A-8 partition deed dated 25.12.1959 executed between the father of the 1st respondent Sreeranga Nadar and his brother Palaniappa Nadar. It is the case of the 1st respondent that the suit schedule properties in O.S.No.755 of 1983 consisting of seven items, were allotted to his father in a family partition under Ex.A-8. Since his father got the properties by way of family partition, these properties are ancestral properties and therefore, the 1st respondent is entitled for a share in the said properties. Though the trial court dismissed the suit, the lower appellate court has granted preliminary decree of partition only in respect of the properties covered under Ex.A-8, which deed covers only three items of suit properness. The first three items of suit properties in O.S.No.755 of 1983 are extracted hereunder: ------------------------------------------------------------ Patta No. S.No. Extent in acres Nature of land Kist in Rs. ------------------------------------------------------------ 593 259/4 1.76 dry 5.49 593 261/6 0.83 dry 2.59 593 258/13A 0.90 dry 2.03 ------------------------------------------------------------ 24. So far as the other four properties are concerned, they are not covered under Ex.A-8. Hence, as per the finding rendered by the lower appellate court, the 1st respondent is entitled to a share in respect of first three items of properties. It is pertinent to state that the first two items of properties, namely, S.No.259/4 measuring to an extent of 1.76 acres and 0.83 cents under S.No. 261/6 were settled by Sreeranga Nadar in favour of his second wife Pavalayee under Ex.B-2. Therefore, according to the appellant, since the first two items were already settled under Ex.B-2 dated 19.12.1982 the 1st respondent is not entitled for partition in respect of the said items, whereas it is the contention of the 1st respondent that the said properties, being ancestral in nature, his father has no right to execute any settlement deed in respect of those properties in https://hcservices.ecourts.gov.in/hcservices/ favour of Pavalayee and