IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30.04.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.1434 of 1998 & C.M.P.No.551 of 2010 1.Kamalammal (Deceased) ...I Appellant/ I Defendant 2.J.Jayammal ...2nd Appellant/ 3rd Defendant 3.S.Jagadeeswari 4.M.Velalagan 5.M.Rajendran 6.S.Maheswari 7.M.Rajeswari (Appellants 3 to 7 brought on record as LRs of the deceased first appellant vide order of Court dated 27.01.2010 in C.M.P.No.9187 of 2006 in S.A.No.1434/1998) .. Appellants ..Vs 1.Lakshmi Ammal (Deceased) ...1st Respondent/ Plaintiff 2.Saradammal 3.Vanasakshi Ammal 4.Premavati 5.Shanthiammal 6.Rajarajeswari 7.Sakunthala Ammal 8.Kannammal 9.Venkatachalam 10.Sathammal 11.R.Janardanam 12.Soundararajan 13.Vanitha Ammal 14.Eswari Ammal 15.Chinthamani Ammal 16.Srinivasan 17.Rani @ Punithavathiammal 18.Annamalai Gounder 19.P.Ramachandran https://hcservices.ecourts.gov.in/hcservices/ 20.P.Ravi 21.P.Chandra 22.P.Rani 23.P.Latha (Respondents 19 to 23 brought on record as LRs of the deceased R1 vide order of Court dated 27.01.2010 made in C.M.P.No.1781 to 1783 of 2009) ...Respondents 2 to 23/ 2nd, 4th to 12, 14 to 25 Defendants SECOND APPEAL filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 05.01.1998 passed in A.S.No.43 of 1996 and Cross Objection in A.S.No.43 of 1996 on the file of the learned Additional District Judge, Tiruvannamalai against the judgment and decree dated 30.04.1996 passed in O.S.No.131 of 1986 on the file of the learned Subordinate Judge of Tiruvannamalai. For Appellant : Mr.S.V.Jayaraman, Senior Advocate For Mr.Sundaralingam - for Appellants 3 to 7 (LRs of A-1) Mr.Balan Haridoss – for 2nd Appellant For Respondents: Mr.R.Subramanian for MR.T.R.Rajaraman for R-7 & R-10 and R-19 to R-23 (Lrs of R-1) Mr.R.Karthikeyan – for R-17 No appearance for R-2, R-8, R-9, R-11 & R-12, R-15 & R-16 NDW – R-3 to 6 R-13 & R-14 J U D G M E N T The above Second Appeal arises against the judgment and decree made in A.S.No.43 of 1996 and Cross Objection in A.S.No.43 of 1996, on the file of Additional District Court, Tiruvannamalai, reversing the judgment and decree in O.S.No.131 of 1986 on the file of Sub Court, Tiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ 2. The first defendant is the first appellant in the above second appeal and the third defendant in the suit, who had filed the Cross Objection before the lower appellate Court, is the second appellant in the above second appeal. The first respondent in the second appeal is the plaintiff, who died pending appeal, and his legal representatives are respondents 19 to 23. Respondents 2 to 8 are the defendants in the suit. 3. The plaintiff filed the suit in O.S.No.131 of 1986 on the file of Sub Court, Tiruvannamalai for the following reliefs:- (a) Directing the division of the suit 'A' schedule and 'E' Schedule properties into 4 equal shares, taking good and bad soil into consideration and allot one such share to the plaintiff. (b) Directing the division of the suit 'B' and 'C' schedule properties into 8 equal shares taking good and bad soil into consideration and allot one such share to the plaintiff, (c) Directing the division of the suit 'D' schedule properties into 16 equal shares and allot one such share to the plaintiff, (d) Appointing a commissioner to divide the suit properties as aforesaid and to allot the due shares to the plaintiff, (e) Directing the defendants to put the plaintiff in possession of her share in the suit properties and if they fail to do so, the plaintiff's share in the suit properties may be delivered to the obstruction to the obstruction of the defendants. (f) Awarding the cost of the suit payable by the defendants to the plaintiff. 4. The brief case of the plaintiff is as follows:- (i) According to the plaintiff, Govindasamy Pillai and Vaiyapuri Pillai are the sons of one Narayana Pillai. The said Narayana Pillai and his 2 sons were constituting members of an undivided Hindu joint family owning, vast ancestral joint family properties. The said Narayana Pillai died in or about 1919. Till his life time, Narayana Pillai was the manager of the said joint family, consisting of himself and his two sons. After the demise of Narayana Pillai, his elder son Govindasamy Pillai became the manager of the said joint family consisting of himself and his brother Vaiyapuri Pillai. With the surplus income derived from the ancestral nucleus and joint family cultivation, they started a grocery business and also textile business and they earned lot of profits from the business. By utilising the surplus income earned by the said https://hcservices.ecourts.gov.in/hcservices/ Govindasamy Pillai and Vaiyapuri Pillai, several items of properties, including the suit properties were purchased, some in the name of Govindasamy Pillai and some in the name of Vaiyapuri Pillai. The said joint family possessed as many as 250 acres of lands, several houses and several vacant sites situated at several villages. All the properties which are set out in 'A' and 'B' schedules and several other properties belonged to the joint family of Govindasamy Pillai and Vaiyapuri Pillai. Each one of them became entitled to half share in the joint family properties including the suit properties. (ii) According to the plaintiff, with a view to avoid and escape from the clutches of Land Ceiling Act (Act 58 of 1961), the said Govindasamy Pillai brought about two partition deeds dated 07.09.1962 and 20.11.1973 and even after the said partition deeds, Govindasamy Pillai and Vaiyapuri Pillai lived together. In the partition deed dated 20.11.1973, the properties which are set out under 'A' schedule, were allotted to Vaiyapuri Pillai and the 'B' Schedule properties were not covered by the aforesaid two partition deeds. The said Govindasamy Pillai and Vaiyapuri Pillai have been enjoying the 'B' schedule properties jointly till their life time. (iii) According to the plaintiff, the defendants 1 to 5 are the daughters of Govindasamy Pillai. The 6th defendant is the widow of one Nataraja Pillai, who is the late son of Govindasamy Pillai. The 7th defendant is the daughter of Nataraja Pillai. The plaintiff and defendants 8,9 and 11 are the daughters of the Vaiyapuri Pillai. The 10th defendant is the husband of the 9th defendant. (iv) According to the plaintiff, Govindasamy Pillai executed a settlement deed dated 11.10.1973, in respect of 'C' schedule property, in favour of the third defendant. Since the property mentioned in 'C' schedule is a joint family property, the settlement deed dated 11.10.1973 is abinitio void. The settlement deed dated 11.10.1973, would not affect the undivided half share of Vaiyapuri Pillai. (v) According to the plaintiff, in pursuance of the alleged settlement deed dated 11.10.1973, the third defendant had not taken the possession of the property till the life time of Govindasamy Pillai. Recently, the third defendant had constructed a terraced house in the front portion of the site wherein, originally there was a thatched house. Half of the rear portion is lying vacant. Vaiyapuri Pillai had filed a suit in O.S.No.127 of 1977 on the file of Sub Court, Tiruvannamalai for partition and separate possession of his half share in all the joint family properties, including the present suit properties, against the said Govindasamy Pillai, his wife Jagathambal, the defendants 1 to 9 and 11 and the present plaintiff. The defendants 1 to 6, 7 and 12 had contested the suit. https://hcservices.ecourts.gov.in/hcservices/ While the said suit was pending, Vaiyapuri Pillai had executed a registered Will, dated 02.12.1974 in favour of his wife and daughters. Vaiyapuri Pillai died on 03.05.1977. Therefore, the Will executed by the Vaiyapuri Pillai came into effect. The wife of Vaiyapuri Pillai had been transposed as second plaintiff in O.S.No.127 of 1977 and she prosecuted the said suit. The suit was dismissed on 24.10.1984. The wife of Vaiyapuri Pillai died on 05.03.1985. (vi) According to the plaintiff, even though, the said suit was dismissed on the ground that the two partition deeds dated 07.09.1962 and 20.11.1973 are binding upon the parties, the Sub Court, Tiruvannamalai held that the settlement deed dated 11.10.1973 executed by Govindasamy Pillai in favour of the third defendant relating to the property mentioned in 'C' schedule, is invalid and void. The Sub Court also held that since 'F' schedule properties in O.S.No.127 of 1977 and the present 'B' schedule properties are not covered by the said two partition deeds, Vaiyapuri Pillai and Govindasamy Pillai were also entitled to half share each. The Sub- Court held that the present plaintiff and her sisters would file a separate suit for partition in respect of the properties set out in 'F' schedule in O.S.No.127 of 1977. (vii) According to the plaintiff, as per the terms of the Will dated 02.12.1974, the plaintiff and the defendants 8, 9 and 11 have succeeded to half share each in the 'A' schedule properties and 1/8 share each in the 'B' and 'C' schedule properties. Govindasamy Pillai had also executed a Will dated 27.10.1976 in which the suit 'B' schedule properties are mentioned. In the said Will it is also mentioned that the plaintiff and her sisters are each entitled to 1/16 share. 12th defendant is the son-in-law of the Govindasamy Pillai. Some of the lands that fell to the share of Vaiyapuri Pillai had been taken over by the Government under the Lands Ceiling Act and the compensation was paid by the Government to Mallammal, who deposited the said amount jointly in her name as well as in the name of her daughter Kannammal. The said amount is described in 'E' schedule. The plaintiff is entitled to 1/4th share in 'E' schedule. The 10th defendant is the husband of the 9th defendant. All the jewels of Mallammal, which are set-out as items 2 to 4 in the 'E' Schedule, are in possession of defendants 9 and 10 in which, the plaintiff is also having 1/4th share. During the pendency of O.S.No.127 of 1977, Govindasamy Pillai had sold a part of item No.8 and the entire item No.9 of the 'B' schedule properties to one Vadivelu Iyer on 19.08.1977. The said Vadivelu Iyer died leaving behind the defendants 13 to 16, as his legal heirs. The 17th defendant purchased item No.14 of the 'B' schedule from the 6th defendant on 14.06.1979. The defendants 1 and 2 have jointly sold the first item and part of the second item of the 'B' schedule properties to the 18th defendant on 26.05.1986. The defendants 1 to 5 https://hcservices.ecourts.gov.in/hcservices/ had also sold item No.3 and 4 of 'B' schedule properties to the 19th defendant on 26.05.1986. The defendants 1 to 5 had also sold item No.6 of the 'B' schedule properties to the defendant No.20 on 23.05.1986. (viii) According to the plaintiff, he had issued a lawyer's notice dated 13.01.1986 to the defendants 1 to 12 calling upon them to divide the suit properties. On 17.04.1986, the third defendant sent a reply with false allegations. The first defendant had also issued a reply notice dated 05.03.1986 claiming absolute right in respect of item No.15 of the 'B' schedule properties. According to the plaintiff, the judgment rendered in O.S.No.127 of 1977 operates as resjudicata as well as estoppel against the defendants. Therefore, the plaintiff has filed the suit. 5. The brief case of the defendants are as follows: (i) According to the defendants, on the death of Narayana Pillai, Govindasamy Pillai became manager of the joint family consisting of himself and his brother Vaiyapuri Pillai. Item No.15 in the 'B' schedule was not purchased in the name of Govindasamy Pillai in his capacity as manager of the joint family for the benefit of himself and his brother Vaiyapuri Pillai. The said property was the property of the first defendant purchased out of her own funds in the name of Govindasamy Pillai for her own benefits in which neither Vaiyapuri Pillai nor the present plaintiff has got any right title or interest. Vaiyapuri Pillai and Govindasamy Pillai never treated the said property as joint family property. For this reason, the said Govindasamy Pillai bequeathed the said property in favour of the first defendant by the Will dated 17.01.1971. (ii) According to the defendants, even though, Govindasamy Pillai had executed the Will dated 17.01.1971 in respect of the said property, the property was left to the exclusive possession and enjoyment of the first defendant ever since the date of purchase. The first defendant after taking possession of the property has been dealing with the same as her absolute property and reconstructed the same out of the funds provided by her husband and from her own funds. The omission of other item in the partition between Govindasamy Pillai and Vaiyapuri Pillai, in the partition deed dated 20.11.1973, will clearly prove the fact that neither Govindasamy Pillai nor Vaiyapuri Pillai had any intention what so ever to consider the property as joint family property. Vaiyapuri Pillai being a party to the partition deed dated 20.11.1973 is estopped by his conduct. The first defendant having been in exclusive possession and enjoyment of the said item in her own rights as absolute owner from 03.12.1965 has perfected her title by adverse possession. 'A' schedule properties were also allotted to Vaiyapuri Pillai in the partition deed dated 20.11.1973. The said https://hcservices.ecourts.gov.in/hcservices/ Govindasamy Pillai and Vaiyapuri Pillai never enjoyed the 'B' schedule properties jointly till their life time as averred in the plaint. Item No.15 of the 'B' schedule property is the property of the first defendant and she alone has been enjoying the same ever since the date of her purchase. The first defendant also denied the contention of the plaintiff that Vaiyapuri Pillai was not a party in the said settlement deed and hence it would not bind him and it would not affect undivided half share in 'C' schedule property. The 'C' Scheduled property is in actual enjoyment and possession of the third defendant. (iii) According to the defendants, the settlement deed dated 11.10.1973 was effected by Govindasamy Pillai in his capacity as manager. Without setting aside the said settlement deed the plaintiff cannot ask for partition in respect of 'C' schedule property. The third defendant had also constructed a pucca terraced house in 'C' schedule property by spending huge amount. The plaintiff and other heirs of Vaiyapuri Pillai and Govindasamy Pillai are estopped from claiming any right in respect of the property mentioned in 'C' schedule. Even in O.S.No.127 of 1977, the Sub- Court, Tiruvannamalai held that without setting aside the alienation made by Govindasamy Pillai in respect of 'C' schedule property no relief would be claimed. The third defendant had also acquired title to the 'C' scheduled property by way of adverse possession and also by way of ouster. (iv) According to the defendants, the plaintiff does not put-forth any claim on the basis of the finding given in O.S.No.127 of 1977. The plaintiff cannot claim right in respect of the properties which were sold to Vadivelu Iyer. The plaintiff is not in possession and enjoyment of the suit properties. The first defendant has spent Rs.2,00,000/- for making improvement in respect of item No.15 of the 'B' schedule property. The first defendant had demolished the old tiled house and put up a pucca construction from and out of her own funds and also from the funds provided by her husband. The third defendant has spent Rs.4,00,000/- for the improvement in respect of the house are mentioned in 'C' schedule property. (v) According to the defendants, 8th and 11th defendants are the sisters of the plaintiff. The alienation's made by Govindasamy Pillai during the pendency of the suit in O.S.No.127 of 1977 are all invalid and not binding on the defendants 8 and 11. The defendants 8 and 11 are each entitled to get 1/4th share in the 'B' schedule and 'C' schedule properties and 1/16th share in the suit 'D' schedule properties. The 10th defendant has been impleaded in the present suit unnecessarily. The 14th defendant had purchased the properties covered under the sale deed dated 19.08.1977 during the pendency of the suit in O.S.No.127 of 1977. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ purchase made by the father of the 14th defendant, he is entitled to the benefits of Section 41 of the Transfer of Property Act. Item Nos.8 and 9 in the 'B' schedule properties are to be allotted to the share of the 14th defendant by way of equiry.. Therefore, the defendants prayed for dismissal of the suit. 6. Before the trial court, on the side the plaintiff, two witnesses were examined and 29 documents, Ex.A-1 to Ex.A-29 were marked and on the side of the defendants, 5 witnesses were examined and 13 documents, Ex.B-1 to Ex.B-13 were marked. 7. The trial court, after taking into consideration the oral and documentary evidences of both sides, except 'C' schedule, decreed the suit in respect of the other schedule of properties and passed a preliminary decree. Item No.15 in 'B' schedule was allotted to the first defendant on equity in the preliminary decree. 8. Aggrieved over the judgment and decree of the trial court, the plaintiff preferred an appeal in A.S.No.43 of 1986 on the file of Additional District Court, Tiruvannamalai and the first defendant and the defendants 8 and 11 filed Cross-Objections and the lower appellate Court set aside the judgment and decree of the trial Court and allowed the appeal in A.S.No.43 of 1996 and also allowed the Cross Objection filed by the defendants 8 and 11. The lower appellate Court dismissed the Cross Objection filed by the first defendant. 9. Aggrieved over the judgment and decree of the lower appellate Court, the defendants 1 and 3 have filed the above second appeal. 10. Heard Mr.S.V.Jayaraman, learned senior counsel for the appellants 3 to 7, Mr.Balan Haridos, learned counsel for the second appellant, Mr.R.Subramanian, learned for the respondents 7 and 10 and 19 to 23 and Mr.R.Karthikeyan learned counsel for the 17th respondent. 11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- "1. Whether the lower appellate Court was right in holding that item 15 of the plaint 'B' schedule property which was purchased under Exhibit A-2 dated 14.02.1965 in the name of Govindasamy Pillai, father of the first defendant was for the benefit to joint family, when the fact that there was a partition in the year 1962 under registered document available disrupting https://hcservices.ecourts.gov.in/hcservices/ the family status and especially when there has been no acceptable legal evidence to prove that there has been a reunion between Govindasamy Pillai (Father of the first defendant) and Vaiyapuri Pillai (Father of the plaintiff) 2. Whether the lower appellate Court should have allotted in any event item No.15 of the plaint 'B' schedule property to the first defendant on the ground of equity and also by the fact that the plaintiff stood by the construction all these years put up by the first defendant at huge cost enhancing its value. 3. Whether the lower appellate Court was right in rejecting the plea of third defendant to the plaint 'C' schedule property on the ground that Govindasamy Pillai has gifted the property to her in 1973, long after the petition in 1962 and such gift was reasonable. 4. Whether the plaintiff is entitled to question on Exhibit A-29 gift executed by Govindasamy Pillai in favour of his daughter the third defendant especially, when there has been a disruption in the joint family status between Govindasamy Pillai and Vaiyapuri Pillai, father of the plaintiff in 1962." 12. The second appellant has filed C.M.P.No.551 of 2010 to receive the settlement deed dated 11.10.1973 as additional evidence. The said settlement deed was not marked as exhibit before the trial court, however, the courts below discussed about the said document as though it was marked as Ex.A-29 and the verdicts were also rendered. Now in the course of argument it was found that settlement deed dated 11.10.1973 has not been marked and the same is not marked as Ex.A-29. In fact, Ex.A-29 is some other document. According to the second appellant, the settlement deed have not been marked by sheer inadvertence and the parties have conducted the case on the basis that the settlement deed has been marked. According to the second appellant, the existence of the settlement deed was not disputed by any of the parties and the document is required for complete adjudication of the appeal. Learned counsel for the respondents as well as the first appellant have no objection for receiving the said document as additional document. Therefore, the application is allowed and the settlement deed dated 11.10.1973 is marked as Ex.B-14. https://hcservices.ecourts.gov.in/hcservices/ 13. Since the learned counsel for the respective parties do not dispute Ex.B-14 settlement deed, the question of proving the document under Order 41 Rule 28 C.P.C., does not arise. 14. On a careful consideration of the materials available on record and the submissions made by the respective learned counsels, it is not in dispute that the plaintiff's father Vaiyapuri Pillai and one Govindasamy Pillai are brothers and they constituted a Hindu joint family. The joint family possessed more than 250 acres of land and Govindasamy Pillai was the manager of the joint family. Govindasamy Pillai and Vaiyapuri Pillai executed two partition deeds dated 7.9.1962 and 20.11.1973. As per the partition deed dated 20.11.1973, 'A' schedule properties were allotted to Vaiyapuri Pillai. The said Vaiyapuri Pillai filed the suit as against his brother Govindasamy Pillai and others in O.S.No.127 of 1977 on the file of Sub Court, Tiruvannamalai. During the pendency of the suit, Vaiyapuri Pillai had died and his wife was transposed as second plaintiff. Govindasamy Pillai also died during the pendency of the said suit. The present plaintiff was the 13th defendant in the previous suit i.e., in O.S.No.127 of 1977 and the defendants 1 to 3 were defendants 3 to 5 in the said suit. Ex.A-27 is the plaint in O.S.No.127/77, Ex.A-28 is the written statement filed by defendants 3 to 8, Ex.A-29 is the written statement filed by defendants 4 to 15 and Exs. A-5 and A-6 are the judgment and ;decree in O.S.NO.127 of 1977. The said suit was dismissed on 24.10.1984. 15. On a perusal of Ex.A-5, judgment in O.S.No.127 of 1977, it could be seen that item No.15 in 'B' schedule and 'C' schedule were the joint family properties. The trial court, after elaborate discussion, has categorically found that the said properties are the joint family properties. The trial court passed preliminary decree except 'C' schedule properties. In respect of item No.15 in 'B' schedule, the trial court held that the said property has to be allotted to the first defendant on equity in the final decree proceedings. 16. Aggrieved over the judgment and decree of the trial court, the plaintiff has filed the appeal in A.S.No.43 of 1996 and the first defendant has filed the cross objection and the defendants 8 and 11 also filed a separate cross objection. The lower appellate court, while allowing the appeal filed by the plaintiff in O.S.No.43 of 1996, also allowed cross objection filed by the defendants 8 and 11 and dismissed the cross objection filed by the first defendant. The defendants 8 and 11 have filed their cross objection in respect of the same relief, which have been asked by the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 17. The above second appeal have been filed by the defendants 1 and 3 against the grant of preliminary decree in respect of item No.15 in 'B' schedule and 'C' schedule properties. Therefore, the subject matter of the second appeal is only with regard to item No.15 in 'B' schedule and the 'C' schedule properties. So, far as the other items are concerned, the judgment and decree of the courts below have become final. 18. On a perusal of Exs. A-5 and A-6, the judgment and decree in O.S.No.127 of 1977, it could be seen that the suit filed by Vaiyapuri Pillai was dismissed and a finding with regard to the partition deeds dated 7.9.1962 and 20.11.1973 has been given against the plaintiff therein. In Ex.A-5 judgment, the trial court also found that item No.15 in 'B' schedule property and 'C' schedule property are the joint family properties. The legal representatives of the deceased-Vaiyapuri