IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-07-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1721 of 2008 Meenakshi (Deceased) 1.M.Narayanan 2.M.Adhimoolam 3.Selvakumar 4.S.Gnanammal 5.Saradha 6.K.shanthi 7.Sasikala ..Appellants (Plaintiffs) Versus 1.Murugan 2.Nataraj 3.J.Lakshmi 4.Kavitha 5.Pichaiammal 6.Rukmani 7.Dhanalakshmi 8.Jayalakshmi 9.Thangam 10.Gajalakshmi ..Respondents (Defendants) PRAYER: Appeal under Section 100 of C.P.C. against the judgment and decree made in A.S.No.24 of 2007, dated 30.9.2008, on the file of the learned Principal District Judge, Tiruvallur, confirming the judgment and decree in O.S.No.143 of 2000, dated 19.4.2006, on the file of the learned Subordinate Judge, Tiruvallur. For Appellants : Mr.M.V.Muralidaran For Respondents : Mr.V.Nicholas (R1 to R3 & R5 to R10) Not Ready in notice reg R4 J U D G M E N T This second appeal has been filed against the judgment and decree, dated 30.9.2008, made in A.S.No.24 of 2007, on the file of the Principal District Court, Tiruvallur, confirming the judgment and decree, dated 19.4.2006, made in O.S.No.143 of 2000, on the file of the Subordinate Court, Tiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 2. The plaintiffs in the suit, in O.S.No.143 of 2000, are the appellants in the present second appeal. The defendants in the said suit are the respondents herein. The plaintiffs had filed the suit, in O.S.No.143 of 2000, on the file of the Subordinate Court, Tiruvallur, praying for the relief of partition, separate possession and permanent injunction against the defendants therein and for costs. 3. The plaintiffs had stated that Munusamy Naicker and his sons had purchased certain properties, in Kolappakkam Village, out of their joint efforts. The funds used for the purchase of the properties had been earned by them, from their ancestral properties, by way of joint venture. On 17.7.1972, Munusamy Naicker and his sons had sold their properties to one Kubendran, by way of a sale deed, bearing Document No.1345/72. In the said sale deed, Munusamy Naicker, the vendor, had stated that the properties were being sold, in order to discharge their earlier debts and to purchase other properties. Subsequently, on 21.7.1972, the suit properties had been purchased in the name of late Munusamy Naicker, as he was the manager of the Hindu undivided family. This purchase had been made just after four days from the date of the sale deed, dated 17.7.1972. Thus, it is clear that the suit properties are joint family properties, as they had been purchased out of the joint family funds. Therefore, it cannot be the individual property of late Munusamy Naicker. 4. It had also been stated that, after the purchase of the properties, all the joint family members are in joint possession and enjoyment of the said properties. The chitta and sagubadi adangal, for the faslis 1405 and 1406, would prove the joint possession of the properties, by the members of the joint family. One Kuttipillai was having control over Munusamy Naicker by supplying him alchohol, as he was addicted. Thus, Kuttipillai had obtained an agreement of sale, dated 28.1.1981, from Munusamy Naicker, to purchase the suit properties for a very low price of Rs.89,000/-. Thereafter, Kuttipillai had obtained a decree, in O.S.No.77 of 1981, on the file of the Subordinate Court, Tiruvallur. The said decree had been confirmed, both by the High Court, as well as the Supreme Court. Based on the decree passed, in O.S.No.77 of 1981, for specific performance, he had got the sale deed executed through Court proceedings. As per the terms of the decree, the first and the second defendants were refrained from disturbing the possession of the plaintiffs therein, in the suit properties. Further, without following the due legal procedures, the defendants 1 and 2 had trespassed into the suit properties, on 27.11.2000. In such circumstances, the plaintiffs had filed the present suit, for partition and for separate possession of the suit properties. 5. The defendants 1 and 2 and 5 to 10 are entitled to only 1/6th share in the suit properties. The plaintiffs are entitled to 2/3 rd share, while the third and the fourth defendants are also entitled to 1/6th share of the said properties. Since, the plaintiffs and the https://hcservices.ecourts.gov.in/hcservices/ defendants 3 and 4 are in joint possession of the suit properties and as it was not convenient for them to enjoy the suit properties, jointly, the plaintiffs had filed the suit for partition and for separate possession. 6. In the written statement filed on behalf of the defendants the averments and allegations made in the plaint, by the plaintiffs, had been denied. It had been stated that the plaintiffs have no right, title or interest in the suit properties. The suit properties are not ancestral in nature and the plaintiffs are not members of the Hindu undivided joint family. The claim of the plaintiff that Munusamy Naicker and his sons had purchased properties in Kolappakkam Village, out of their joint efforts in the ancestral properties, is false. The suit items had been purchased by Munusamy Naicker, as an individual owner and not as a manager of the joint family. The suit items were not purchased from and out of the joint family funds, as alleged by the plaintiffs. 7. It had been stated that the decision, in O.S.No.77 of 1981, became final, as it had been confirmed, finally, by the Supreme Court. Therefore, it is not open to the plaintiffs to challenge the same. Kuttipillai was put in possession of the lands by Munusamy Naicker, in the tamil month of Thai, 1998. Thereafter, the patta had also been obtained and the father of the defendants had put up a shed, sunk a borewell and installed submersible pump sets in the said properties. The plaintiffs had, earlier, filed a suit for partition, in O.S.No.146 of 1995, on the file of the Subordinate Court, Tiruvallur. Since, they had not pursued the suit, thereafter, the said suit had been dismissed for non prosecution. 8. The plaintiffs are bound by the decree obtained against Munusamy Naicker. In fact, Munusamy Naicker had raised all the grounds in his defence, in O.S.No.77 of 1981. However, the plaintiffs have raised the same grounds, once again, in the present suit. Thus, it is clear that it is not open to the plaintiffs to raise the same grounds, once again, as it is hit by the principle of res judicata. In fact, Kuttipillai had made substantial improvements in the suit property, by spending huge amounts of money. Only thereafter, the plaintiffs had filed the suit, by making false allegations, asking for the relief of partition and for separate possession of their shares in the suit properties. 9. In view of the submissions made on behalf of the plaintiffs, as well as the defendants in the suit, the trial Court had framed the following issues for consideration: “1. Whether the suit property have been purchased from the income of Munusamy Naicker’s joint family property, if so the suit property is the joint family property as pleaded by the plaintiff is true? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the Kuttipillai is in possession and enjoyment over the suit property from 1995 onwards as pleaded by the defendant is true? 3. Whether the findings in O.S.No.146 of 1995 is binding on the plaintiff? 4. Whether the plaintiff is entitled for injunction as prayed for? 5. Whether the plaintiff is entitled to suit for partition as prayed for? 6. To what relief if any?” 10. The trial Court had found that, in order to prove the case of the plaintiffs they had chosen to examine one Gnanambal, as P.W.1 and they had filed nine documents, marked as Exs.A-1 to A-9, in support of their claims. The defendants had examined Natarajan, as D.W.1 and had filed 14 documents, marked as Exs.B-1 to B-14 to prove their contentions. 11. The trial Court had found that, from the evidence adduced by P.W.1, the suit properties are measuring an extent of 10 acres and 94 cents. It was shown that the plaintiffs 1 to 8 and the defendants 3 and 4 are the only legal heirs of Munusamy Naicker. It had also been stated by P.W.1, that Munusamy Naicker and his sons had purchased the properties at Kolappakkam village by their joint efforts and with the funds obtained from the ancestral properties. In the sale deed, dated 17.7.1972, marked as Ex.A-1, executed by Munusamy Naicker and his sons, it had been stated that the property was being sold in order to discharge certain existing debts and to purchase other properties. Thereafter, on 21.7.1972, the suit properties had been purchased in the name of Munusamy Naicker, as the kartha of the Hindu joint family. Thus, it is clear that the suit properties are joint family properties. It had also been claimed that, from Exs.A-2 and A-3, joint possession of the suit properties, by the members of the joint family, has been established. It had also been found that the defendants had contended that the suit properties are self acquired properties of Munusamy Naicker. In order to prove the said claim D.W.1 had been examined and Exs.B-1 to B-4 had been marked. From the recitals of Exs.A-1 and A-2, the trial court had found that the properties in question had been purchased by Munusamy Naicker, out of his own funds. 12. It had also been found that Exs.A-4, chitta for faslis 1403 to 1406, and Ex.A-5 Sagubadi adangal for the faslis 1405 and 1406 stood in the name of the deceased Munusamy Naicker, who had died on 25.9.1998. From Ex.A-6 the decree passed in the suit, in O.S.No.77 of 1981, it was found that one Kuttipillai, who had entered into an https://hcservices.ecourts.gov.in/hcservices/ agreement with Munusamy Naicker, in respect of the suit properties, had obtained a decree in his favour. The said decree had also been confirmed by the High Court in the appeal, in A.S.No.24 of 1984, by an order, dated 26.10.1994, marked as Ex.B-1. Thus, it was clear that the defendants were in possession and enjoyment of the suit properties. It had also been seen, by the trial Court, that Munusamy Naicker had filed a suit, in O.S.No.146 of 1995, on the file of the Subordinate Court, Tiruvallur, for partition of the suit items and it had been dismissed and the decision had become final. As such, it is not open to the plaintiffs, who are the legal heirs of Munusamy Naicker, to file a fresh suit for partition and for separate possession, as it is barred by the principle of res judicata. In such circumstances, the trial Court had found that the suit filed by the plaintiffs was devoid of merits. 13. Aggrieved by the judgment and decree of the trial Court, made in O.S.No.143 of 2000, the plaintiffs in the suit had filed an appeal, on the file of the Principal District Court, Tiruvallur, in A.S.No.24 of 2007. The First appellate Court had framed the following points for consideration. “1.Whether the decree and judgment passed by the learned Sub Judge is liable to be set aside? 2. What relief the parties are entitled to?” 14. Based on the evidence available on record and in view of the submissions made on behalf of the appellants and the respondents in the first appeal, the First Appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 30.9.2008, made in A.S.No.24 of 2007. 15. Aggrieved by the judgment and decree of the first Appellate Court, dated 30.9.2008, made in A.S.No.24 of 2007, the plaintiffs in the suit, who were the appellants in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law: “a) Whether the appellants herein are not entitled for partition in the suit schedule of property? b) Whether the suit schedule of property is not the joint family property? c) Whether the suit schedule of property is the self acquired property of Late Munusamy?” 16. The learned counsel appearing on behalf of the appellants had submitted that the judgment and decree of the Courts below is against law, the weight of evidence and the probabilities of the https://hcservices.ecourts.gov.in/hcservices/ case. It had been stated that the learned Principal District Judge, Tiruvallur, had miserably failed to look into the oral and documentary evidence produced on behalf of the appellants. The Courts below had failed to note that the suit schedule properties are joint family properties and late Munusamy Naicker had no right to enter into a sale agreement with any one, including Kuttipillai. The Courts below had erred in coming to the conclusion that the appellants are not entitled for partition in the suit schedule properties. The Courts below ought to have noted that the suit schedule properties had been purchased from and out of the sale consideration of the joint family properties. Both the Courts below had failed to note that the appellants were entitled to their shares in the suit schedule properties, as late Munusamy Naicker had no power to enter into a sale agreement, in respect of the entire suit schedule properties. As such, the judgment and decree of the Courts below are erroneous and invalid. 17. The learned counsel appearing on behalf of the respondents had submitted that both the trial Court, as well as the First Appellate Court, had rightly held that the appellants, who were the plaintiffs in the suit, had no right to ask for the relief of partition and for separate possession, in respect of the suit schedule properties, as the suit properties were not joint family properties, as claimed by them. From the evidence available on record, it is clear that late Munusamy Naicker had purchased the suit properties from his own funds and therefore, the properties were his individual properties. As such, he had the right to deal with the said properties, as he wished. Thus, he had entered into a sale agreement with Kuttipillai, on 28.1.1981, which had been enforced by way of a decree, made in O.S.No.77 of 1981, marked as Ex.A-6. The claims made by the plaintiffs, that the suit properties are joint family properties, had not been proved, by sufficient evidence. The appellants had not been in a position to show that the suit properties had been purchased, from and out of the common funds of the Hindu joint family of the plaintiffs. In such circumstances, both the Courts below had rightly held that the claims made by the plaintiffs in the suit, in O.S.No.143 of 2000, are devoid of merits. As such, the Courts below had rightly dismissed the suit filed by the plaintiffs, in O.S.No.143 of 2000. 18. In view of the submissions made by the learned counsels appearing on behalf of the appellants, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the appellants have not shown sufficient cause or reason to set aside the concurrent findings of the Courts below. Both the Courts below had come to their conclusions, based on the evidence available on record. The plaintiffs had not been in a position to show that the suit schedule properties had been purchased, from and out of the funds of the joint family properties. There was nothing shown on behalf of the appellants to substantiate https://hcservices.ecourts.gov.in/hcservices/ their claims that the properties purchased by Munusamy Naicker were joint family properties. 19. On the contrary, from the evidence adduced on behalf of the respondents, it is clear that Munusamy Naicker had purchased the properties concerned, from his own funds and therefore, the properties were his individual properties. Futher, Munusamy Naicker had entered into an agreement of sale with one Kuttipillai, who had filed a suit for specific performance, in O.S.No.77 of 1981, on the file of the Subordinate Court, Tiruvallur, and the said suit had been decreed and it had also become final. Further, the suit filed by Munusamy Naicker, in O.S.No.143 of 2000, for partition and for separate possession, had been dismissed. Thereafter, it is not open to the plaintiffs in the present suit to claim the same reliefs, as it would be barred by the principle of res judicata. Since, the plaintiffs had failed to prove, by sufficient evidence, that the suit properties are joint family properties, the trial court, as well as the First Appellate Court, had rightly rejected the claims made by the plaintiffs and had dismissed the suit. Further, no substantial questions of law have been raised by the appellants for the consideration of this Court, in the present second appeal. As such, the second appeal is devoid of merits and therefore, it is liable to be dismissed. Hence, it is dismissed. No costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar csh To 1) The Principal District Judge, Tiruvallur. 2) The Subordinate Judge, Tiruvallur. + 1 c.c. to Mr. V. Nicholas, Advocate. S.R.No.52786. + 1 c.c. to M/s. M.V. Muralidaran, Advocate. S.R.No.52803. S.A.No.1721 of 2008 MBS (CO) GSK 11.08.2010. https://hcservices.ecourts.gov.in/hcservices/