BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 16.06.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.718 of 1997 J.Manohar .. Appellant / Plaintiff Vs. 1.J.Sridhar 2.Vanaja 3.Rukmani Ammal .. Respondents / D1, D3 and D4 Prayer :- This appeal has been preferred Under Order XLI Rule 1 and Section 96 of CPC against the judgment and decree dated 12.02.1997 passed in O.S.No.79 of 1992 on the file of the Subordinate Judge, Arani. For Appellant : Mr.S.Kalyanaraman, Advocate For Respondents : Ms.R.Poornima, Advocate (for R1) RR 2 & 3 : No appearance JUDGMENT The unsuccessful plaintiff in O.S.NO.79 of 1992 on the file of the Subordinate Judge, Arani, Tiruvannamalai District, is the appellant herein. The plaintiff had filed the suit for partition of one half share in the plaint schedule properties and also for permanent injunction against D3 and D4 from taking possession of the plaint schedule properties. 2.The short facts of the plaint sans irrelevant particulars are as follows:- D1 is the brother of the plaintiff and D2 is the mother (who died pending suit). D3 & D4 are the purchasers under D1. Apart from D1, the plaintiff has another brother by name Sankaran. The plaintiff, D1 and the above said Sankaran are the sons of late Jaganatha Mudaliyar. The plaint schedule properties are ancestral joint family properties. Some of the properties were acquired by Jaganatha Mudaliyar from out of the income of the joint family properties. The other brother of the plaintiff viz., Sankaran became addicted to immoral habits and was leading a wayward life and he even https://hcservices.ecourts.gov.in/hcservices/ neglected to maintain his wife. After the marriage of the plaintiff, Jaganatha Mudaliyar and D2 (mother) were living with D1. At the instance of D1 Jaganatha Mudaliyar had executed a Will in his favour. D1 and the plaintiff assured that they will enjoy the joint family properties even after the execution of the Will. Only on the basis of the said assurance Jaganatha Mudaliyar had executed the Will dated 01.08.1984 in favour of D1. The recital in the Will as to the effect that the properties bequeathed under the Will were self- acquired properties of Jaganatha Mudaliyar is false. Jaganatha Mudaliyar had no capacity to execute the Will in respect of the Joint Family Properties in favour of D1 alone. Even after the death of Jaganatha Mudaliyar the suit properties were treated as joint family properties and the plaintiff and D1 were in joint possession of the same. A family arrangement was entered into between the brothers on 8.4.1988. Under the said family arrangement Sankaran and his wife Saraswathi Ammal were paid Rs.10,000/- out of the income of the joint family properties and they relinquished their interest in the joint family properties. The plaintiff was also given Item No.1 property scheduled to the said family arrangement. Only with an intention to get relinquishment of right in respect of the joint family properties from Sankaran and his wife, the said family arrangement was entered upon by the brothers. The recitals of the allotment of properties to the plaintiff was never intended to be operative and infact it did not come to effect even after the said family arrangement. The plaintiff and 1st defendant continued to be the members of the joint family property and they were in possession of the properties. Because of trust and confidence the plaintiff signed in the said family arrangement document. Due to evil advice of some persons, D1 issued an advertisement in a vernacular daily dated 28.09.1991 claiming share in the suit properties. All the attempts made by the plaintiff to get a peaceful partition failed. Hence, the plaintiff has comeforward with this suit for partition of plaintiff's one half share in the suit property (after the death of D2) and also for consequential injunction against D3 & D4 who are the alienies under the first defendant. 3.The first defendant in his written statement would contend that the plaintiff, D1 and D2 never constituted a joint family. The suit properties are self-acquired properties of the father of the plaintiff & D1 viz., Jaganatha Mudaliyar. The claim of the plaintiff that the plaint schedule properties were purchased by Jaganatha Mudaliyar from out of the income derived from the joint family properties is not true. It is not true to say that the plaintiff's other brother Sankaran became addicted to immoral habits and was leading a wayward life and he neglected to maintain his wife. After the marriage of the plaintiff, Jaganathan and D2 were not living with the 1st defendant as alleged in the plaint. It is further denied as https://hcservices.ecourts.gov.in/hcservices/ false that Jaganatha Mudaliyar had executed the Will infavour of D1 only on the assurance given by the plaintiff and D1 to treat the petition scheduled properties as joint family properties even after execution of the said Will. The petition scheduled properties were never treated as joint family properties even after the death of Jaganatha Mudaliyar and that the plaintiff and D1 were never in joint possession of the petition scheduled properties. Jaganatha Mudaliyar in sound disposing state of mind and with his free will and volition bequeathed the plaint schedule properties in favour of D1 under a registered Will dated 1.4.1984. As the absolute owner of the suit properties Jaganatha Mudaliyar had right to execute the said Will. Jaganatha Mudaliyar died on 27.03.1987 and from that date onwards the Registered Will dated 1.8.1984 executed by Jaganatha Mudaliyar took effect. The plaintiff, D2, Sankaran and his wife Saraswathi Ammal had acknowledged the said Will dated 1.8.1984 and also recognised the right, title and interest of D1 in respect of the suit properties and requested D1 to provide some properties and cash for them. In the presence of wellwishers and elderly persons family arrangement was made under a registered document dated 8.4.1988 between the plaintiff, D1 and other brother Sankaran. Under the said family arrangement, the plaintiff was given absolute title to the house bearing Municipal Door No.29 situate in T.S.No.96, Block D/5, Police Station Road, Arni Town, which is described as Item No.1 of the suit schedule properties. The plaintiff had executed the same and he has been in possession and enjoyment of the same by residing therein. The other brother Sankaran was paid a sum of Rs.5,000/- and his wife Saraswathy Ammal was paid a sum of Rs.5,000/- and they accepted and received the same. Hence, the said family arrangement was accepted and acted upon by the parties and now it is not open to the plaintiff to question the same. The plaintiff is estopped from questioning the said family arrangement and claiming a share in the suit properties. After the family arrangement, D1 had made improvements in the tiled shop building bearing Municipal Door No.356, Sathyamoorthy Road, Arni Town, which is described as item No.4 to the plaint schedule and also had applied to the Commissioner, Arni Municipality, Arni Town for permission to reconstruct a terraced shop building. After obtaining necessary permission under order Ka- vi-No.25/89 dated 23.2.1989, the first defendant had constructed a shop building in the said plot. Subsequently this defendant had mortgaged the said property in favour of one Sundaresan for a loan of Rs.50,000/- under a registered mortgage deed dated 22.2.1991 and the said mortgage was subsequently discharged. Thereafter, the first defendant had executed a registered sale deed dated 12.3.1992 infavour of D4-Rukmaniammal and D4 had taken possession of the said property on the same day and she is in enjoyment of the same. D1 had also executed a sale deed in respect of item No.3 to the plaint schedule properties in favour of D3-Vanaja Ammal under registered https://hcservices.ecourts.gov.in/hcservices/ sale deed dated 16.6.1991 for a valuable consideration. D3 also took possession of the said property and she is in enjoyment of the same. D1 is dealing with the suit properties except item No.1 as absolute owner without any let or hindrance. Only on the request of the plaintiff and his brother Sankaran the said family arrangement dated 8.4.1988 was entered into between the brothers and D2, which has been acted upon by the parties. After recognizing the sale deed dated 1.8.1984 neither the plaintiff nor the other bother Sankaran had no locus standi to ask for any share in the suit properties. The plaintiff has right only in item No.1 of the plaint schedule properties and he has no right in respect of Item No.2 to 4 of the suit properties. The plaintiff and D1 are not in joint possession of the suit properties. D3 & D4 are bone fide purchasers of suit item Nos.2 to 4 from the 1st defendant. D3 & D4 never made any attempt to trespass into the plaint schedule item No.1 property at any point of time. There is no cause of action for the suit. Court fee paid is not correct. Hence, the suit is liable to be dismissed. 4.The defendants 2 & 3 have adopted the written statement of D1. 5.The 4th defendant in his written statement would contend that she is interested in Item No.4 which she had purchased under a registered sale dated 12.3.1992 for a valuable consideration of Rs.1,95,000/- from D1, who had derived title to the said property under a registered Will execued by his father Jaganatha Mudaliyar dated 26.2.1981. After the death of Jaganatha Mudaliyar, in the presence of Mediators and Panchayators an agreement was entered into between the plaintiff, D1 and other brother Sankaran on 8.4.1988. Under the family arrangement Item No.4 to the plaint schedule was retained by D1. The 1st defendant had dismantled the tiled shop and put up a terraced building, after obtaining municipality licence, in Item No4 property. The properties bequeathed by Jaganatha Mudaliyar to the 1st defendant were the self-acquisition of Janganatha Mudaliyar. After the execution of family arrangement dated 8.4.1988 the plaintiff is estopped from contending that the properties are available for partition. After the purchase of Item No.4, D4 along with her husband took possession of the same and is doing Ragi business and cattlefeed business in the said property. After getting godown license from the Municipality, D1 was running a provisional store in the said property before executing the sale deed in favour of D4. The plaintiff is running a grocery shop at Door No.119, Gandhi Marker Road. Under the family arrangement Item No.1 house bearing Door No.29 was allotted to the plaintiff. The plaintiff is paying municipal tax to Door No.29 (item No.1). Suppressing all these facts, the plaintiff has filed the suit for partition. This defendant is a bonefide purchaser for valua. There is no cause of action to file this suit. Hence, the suit is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6.The first defendant in his additional written statement would state that the plaintiff is not entitled to get one half share in the plaint schedule properties. The plaintiff has no right or title in respect of the suit properties. 7.On the above pleadings the learned trial Judge had framed 11 issues. Plaintiff was examined as P.W.1. The 1st defendant had examined himself as D.W.1 and D4's husband was examined as D.W.2. On the side of the plaintiff Ex.A.1 to Ex.A.7 were marked. The defendants have exhibited Ex.B.1 to Ex.B.21. After meticulously going through the evidence both oral and documentary the learned Trial Judge has come to a definite conclusion that the plaintiff is not entitled to any relief in the suit and accordingly dismissed the suit, but without costs. Aggreived by the findings of the learned trial Judge the plaintiff has comeforward with this appeal. 8.The following points arose for consideration in this appeal:- 1)Whether the properties purchased under Ex.B.11 and Ex.B.17 – sale deeds by late Jaganatha Mudaliyar were taken out of the joint family income derived from the joint family properties of the plaintiff, D1 and late Jaganatha Mudaliyar? 2)Whether the plaintiff is estopped from claiming any share in the plaint schedule properties after the family arrangement Ex.A.2 dated 8.4.1988. 3)Whether D3 & D4 are the bonefide purchasers for value of plaint schedule item Nos.3 & 4? 4)Whether the judgment and decree of the learned Trial Judge in O.S.No.79 of 1992 on the file of the Subordinate Judge, Arani, is liable to be set aside for the reasons stated in the memorandum of appeal? 9.Point No:- 1 Admittedly the plaintiff, D1 and one Sankaran are the sons of late Jaganatha Mudaliyar. The plaintiff has comeforward with this suit for partition of his one half share (after the death of mother-D2) in the suit properties on the ground that the plaint schedule properties are joint family properties of late Jaganatha Mudaliyar, plaintiff, D1 and Sankaran. Even though the plaintiff has filed this suit for partition, he has impleaded only his brother Sridharan and his mother Pungavana Ammal as D1 and D2 respectively. He has not impleaded the other brother Sankaran. It is the definite case of the plaintiff that the plaint schedule properties were purchased by Jaganatha Mudaliyar out of the income derived from the joint family property. For this contention, the plaintiff would rely on Ex.A.5-sale deed executed by Jaganatha Mudaliyar, D1 and other brother Sankaran dated 5.9.1980. The property sold under Ex.A.5 is a punja land measuring 1 acre 35 ½ cents in S.No.142/1 in Tajpoora Village. There is a recital in https://hcservices.ecourts.gov.in/hcservices/ Ex.A.5 as to the effect that the land sold under Ex.A.5 was the ancestral properties of the vendors under Ex.A.5. There is no evidence on record to show that apart from Ex.A.5 land there were other ancestral lands to the joint family of Jaganatha Mudaliyar and his sons. Now the burden is heavily on the plaintiff to show that only from out of the income derived from the land sold under Ex.A.5, the lands under Ex.B.11 and Ex.P.17 were purchased. Ex.B.11 is the sale deed dated 27.5.1959 in favour of Jaganatha Mudaliyar. Ex.B.11 is in respect of plaint schedule item No.2. Ex.B.17 is in respect of plaint schedule item No.3. The recitals in Ex.B.11 and Ex.B.17 will go to show that at the time of taking Ex.B.11 and Ex.B.17 documents Jaganatha Mudialiyar was doing grocery business. P.W.1 / appellant herein in his deposition would state that only out of the income derived from the ancestral properties of the joint family, Ex.B.17 and Ex.B.11 properties were purchased by Jaganatha Mudaliyar. It is the bounden duty of the plaintiff to show that from out of Ex.A.5 property, the joint family was deriving sufficient income even at the time of taking Ex.B.11 and Ex.B.17- sale deeds to purchase those properties. Absolutely there is no evidence on record to show what was the income the joint family of Jaganatha Mudaliyar was getting at the time of taking Ex.B.11 and Ex.B.17-sale deeds by Jaganatha Mudaliyar. Ex.B.11 was taken for Rs.2,000/- and Ex.B.17 property was purchased for Rs.3,000/-, whereas the property sold under Ex.A.5 in the year 1980 was sold for Rs.7,420/- only. So as correctly held by the learned trial Judge, there is absolutely no evidence let in by the plaintiff to show that Ex.B.11 and Ex.B.17 properties were purchased from out of the joint family income derived from the ancestral properties of the joint family of Jaganatha Mudaliyar. In the cross-examination P.W.1 would admit that his father Jaganatha Mudaliyar had come to Arani even during his childhood and he was working as a clerk at the initial stage and thereafter, he had started grocery business at Door No.119, Gandhi Market Road, Arani. He would further admit that from the income derived from the grocery business, his father Jaganatha Mudaliyar had purchased Door No.356 at Sathiyamoorthy Road, Arani. Even though he would deny the execution of the Will in the year 1984 by his father in favour of D1, he would admit that the said Will was a registered one. The said Will is dated 2.8.1984 and the same is registered one and that he also obtained the registration copy of the said Will from the Sub- Registrar's office. But he would state that the said Will was revoked on 16.4.1984. But he has not produced any document dated 16.4.1984 to substantiate his claim that Ex.B.18 dated 1.8.1984 was revoked by the testator. Hence, I hold on point No.1 that the properties purchased by Jaganatha Mudaliyar under Ex.B.11 and Ex.B.17 are not from out of the joint family income of late Jaganatha Mudaliyar. https://hcservices.ecourts.gov.in/hcservices/ 10.Point No:- 2 Admittedly Ex.A.2 is a registered settlement deed dated 8.4.1988 entered into between D2, plaintiff, Sankaran, Sankaran's wife Sarasawathi Ammal and D1. Under Ex.A.2 the plaint schedule item No.1 property was allotted to the plaintiff. Even in Ex.A.2 there is a recital to the effect that under a Will Jaganatha Mudaliyar had bequeathed his self-acquired property in favour of D1, and that D1-Sridharan, who is party No.5 to Ex.A.2 is in possession and enjoyment of the properties bequeathed under the Will Ex.B.18 and under Ex.A.2-settlement deed D1-Sridharan had given Rs.5,000/- to the other brother Sankaran, and another sum of Rs.5,000/- to Sankaran's wife Saraswathi Ammal and Sakaran and his wife have relinquished their right in lieu of the amount of Rs.10,000/- (Rs.5,000/- each) received from D1 under Ex.A.2. Item Nos.2 to 4 to the plaint scheduel were allotted to D1 under Ex.A.2. Under Ex.B.18- Will all the self-acquired properties of Jaganatha Mudaliyar were bequeathed in favour of D1. Under Ex.A.2-family arrangement plaint schedule Item No.1 was settled in favour of the plaintiff and plaint schedule item Nos.2 to 4 were allotted to D1 and the other brother Sankaran and his wife Saraswathi Ammal were given Rs.10,000/- for relinquishing there rights to the plaint schedule properties (properties under Ex.A.2) in favour of the other brothers viz. plaintiff and D1. As correctly held by the learned Trial Judge after Ex.A.2, plaintiff is estopped from claiming any share in the plaint schedule property in item Nos.2 to 4. But under Ex.A.2 – family arrangement the plaintiff has been allotted plaint schedule item No.1. So there can be no objection for plaintiff getting plaint schedule item No.1 partition in the suit even though he is not entitled to a decree for partition of one half share in the plaint schedule properties. Point No.2 is answered accordingly. 11.Point No. 3 :- Admittedly D3 and D4 are alienies under D1 in respect of item Nos.3 & 4 properties to the plaint schedule under Ex.A.6 and Ex.A.7 respectively. Having admitted Ex.A.2-family arrangement dated 8.4.1988 under which plaint schedule Item Nos.2 to 4 have been allotted to D1, who had executed Ex.A.6 and Ex.A.7-sale deeds in favour of D3 & D4 in respect of Item Nos.3 & 4 properties to the plaint schedule, the plaintiff has no locus standi to ask for permanent injunction against D3 and D4 in respect of the properties sold to them under Ex.A.6 and Ex.A.7, which are scheduled as plaint schedule item Nos.3 & 4. Hence, the plaintiff, as rightly held by the learned trial Judge, is not entitled to any injunction much less permanent injunction against D3 & D4 in respect of the plaint schedule item Nos.3 & 4 properties. Point No.3 is answered accordingly. 12.Point No.4 :- In view of my discussions in the earlier paragraphs, I am of the considered view that the plaintiff is entitled to partition of plaint schedule item No.1 property alone in the suit. https://hcservices.ecourts.gov.in/hcservices/ 13.In fine, the appeal is partly allowed and the plaintiff is entitled to the plaint schedule item No.1 property to be partitioned towards his share as per Ex.A.2 and consequently a preliminary decree is passed in the above terms. In respect of other reliefs the appeal is dismissed. Mode of partition of plaint schedule Item No.1 property is relegated to a final decree proceedings. In the circumstances of the case, parties shall bear their own costs. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar ssv To, The Subordinate Judge, Arani. +1 cc to Mr.V.Raghavachari, Advocate, SR.No.29559/08 +1 cc to Mr.S.Kalyanaraman, Advocate, SR.No.29813 A.S.No.718 of 1997 SS (CO) SMK/23.7.08 https://hcservices.ecourts.gov.in/hcservices/