JUDGMENT
S. Tamilvanan, J.
1. This Second Appeal has been directed against the Judgment and Decree, of the District Judge, Dindigui Anna District, Dindigul dated 13.07.1993 made in A.S.No. 2 of 1992 confirming the Judgment and Decree dated 18.07.1991 made in C.S.No. 78 of 1983 on the file of the subordinate Judge, Dindigul.
2. The brief facts of the case are as follows:
The appellant in the Second Appeal is the plaintiff in the suit. It is not in dispute that the appellant / plaintiff and the defendants 2 and 3 are the sons of the first defendant Rangasamy Naidu, son of Perumal Naidu. The said Perumal Naidu and his wife Mangammal had their only son Rangasamy Naidu, the first defendant in the suit as their legal heir. Rangasamy Naidu’s two daughters born through his first wife Mangammal are the 6th and 7th defendants in the suit. The plaintiff Govindaraju and the defendants 2 and 3, namely Mohandoss and Mani @ Alagendiran are the sons of the first defendant Rangasamy born through his second wife Sellammal. The third wife of the first defendant Rangasamy, is the 8th defendant Rajalakshmi and his daughter born through the 8th defendant is the 9th defendant Kalaiselvi. The defendants 4 and 5 are the purchasers of the properties described as items 5 to 7 of the plaint schedule of property. After the death of the first defendant, the defendants 6 to 9 were impleaded as other legal representatives of the first defendant. The defendants 6 to 9 were set exparte by the trial court due to their non appearance. Therefore, the real contesting parties in the second appeal are the appellant / plaintiff and the respondents 3 and 4, who were the defendants 4 and 5 in the suit. The above stated facts are not in dispute in this Second Appeal.
3. The trial court, on considering the oral and documentary evidence advanced by both the parties and after hearing the arguments advanced byboth sides, held that the appellant and the respondents 1 and 2 herein, being the plaintiff and the defendants 2 and 3 in the suit were each entitled to 1/3 share in items 1 to 4 of the plaint schedule properties and passed preliminary decree for partition in favour of the appellant’s / plaintiff’s 1/3 share in items 1 to 4 of the schedule of property and so far as it relates to items 5 to 7 of the plaint schedule properties, the suit was dismissed and the appellant / plaintiff was also directed to pay the cost of the suit to the respondents 3 and 4, being the defendants 4 and 5 in the suit. Aggrieved by which the plaintiff filed the first appeal before the District Court, Dindigul. The said first appellate court, considering the appeal on merits, confirmed the Judgment and Decree passed by the trial court and dismissed the appeal.
4. The first appellate court had framed the following points for determination:
1. Whether the plaintiff was entitled to partition of the entire suit properties?
2. Whether the defendants 4 and 5 purchased items 5 to 7 of the plaint schedule property for proper consideration; Whether the sale is valid; Whether the sale transaction had taken place with bonafide intention?
3. What relief the plaintiff is entitled to?
5. The first appellate court based on the evidence has found that the suit properties were self acquired properties of the first defendant and not the joint family properties of the plaintiff and the defendants 1 to 3. As per the findings of the court below, the defendants 4 and 5 had purchased items 5 to 7 of the plaint schedule property for valuable consideration and the sale, so effected by the first defendant in favour of the defendants 4 and 5 are valid and they purchased the said properties with bonafide intention. The courts below have held concurrently that the said properties were in the possession and enjoyment of the defendants 4 and 5 and they have made improvements in the properties. Aggrieved by the Judgment and Decree passed by the Court below, the plaintiff in the suit preferred this Second Appeal and the same has been admitted on the following Substantial Questions of Law:
1. Whether the release deed, Ex.A9 executed by the second defendant not binding on the minor brothers, the plaintiff and the third defendant?
2. Whether items 5 and 7 would be treated as joint family properties for the reason that the properties have been purchased with the aid of the joint family fund?
6. In this Second Appeal, the appellant / plaintiff has stated that the Court below ought to have held, that Ex.A9, release deed executed by the second defendant would not bind the appellant / plaintiff and the second respondent herein, who was the third defendant in the suit. Ex.A9 is the certified copy of the release deed, dated 17.08.1970, executed by the first respondent herein in favour of his father Rangasamy Naidu, the first defendant in the suit, for himself and also on behalf of his minor brothers, who are non other than the appellant and the second respondent herein. As contented by Mr. M.V. Krishnan, the learned Counsel appearing for the appellant, on 17.08.1970, on the date of the original of Ex.A9, the appellant and the second respondent were minors and their father Rangasamy Naidu, the first defendant in the suit was their natural guardian and therefore, being the brother, the second defendant, who is the first respondent in this Second Appeal, had no locustandy or competency to act as guardian of his minor brothers to executed the release deed, the original of Ex.A9, on behalf of the appellant / plaintiff and the second respondent / third defendant. Therefore I am of the view that the original of Ex.A9, release deed executed by the second defendant and will not bind the plaintiff and the third defendant in the suit and accordingly I decide the first question of jaw, in favour of the appellant/plaintiff.
7. As contended by Mr. R. Subramanian, the learned Counsel for the respondents 3 and 4 herein. Ex,A9 is not a vital document to decide the issues involved in the suit, Admittedly, Rangasamy Naidu, the first defendant in the suit and the father of the appellant and the respondents 1 and 2 had executed the sale deed, Ex.B4, dated 11.03.1971, in favour of Krishnasamy Naidu, the third respondent herein for a consideration of Rs. 36,000/-.
8. The certified copy of the sale deed has been marked as Ex.A10. Similarly, under Ex.B19, sale deed, dated 14.07.1979, the first defendant sold the property described therein, to Sundarraja Naidu, the fourth respondent herein for a sale consideration of Rs. 6,000/-. The certified copy of the sale deed has been marked as Ex.A11. The said properties relating to the aforesaid sale deeds are described as items 5 to 7 in the plaint schedule.
9. The courts below have given a concurrent finding that the purchasers, namely the respondents 3 and 4, under Ex.B4 and Ex.B19 respectively, have proved the passing of sale consideration to the first defendant. Therefore, as per the findings of the courts below, the sale deeds Ex.B4 and Ex.B19 could not be construed as shame and nominal documents. It has to be decided whether items 5 to 7 of the plaint schedule properties were the self acquired properties of the first defendant Rangasamy Naidu or the joint family property of the said Rangasamy Naidu and his sons, namely the appellant and the respondents 1 and 2 herein.
10. The first defendant Rangasamy Naidu had executed a settlement deed, dated 29.05.1948 in favour of his second wife Chellammal, the mother of the appellant and the respondents 1 and 2, the certified copy of the same has been marked as Ex.A1, wherein Rangasamy Naidu has stated that the property described there in was his absolute property, in his possession and enjoyment and that he executed the settlement deed in favour of his second wife Chellammal and also handed over the possession and enjoyment of the property to her on the same date. Similarly, Ex.A2 is the partition deed, dated 04.07.1956, between the first defendant, the respondents 1 and 2 and the appellant herein. In the said partition deed, it has been averred that on 29.05.1948, when the first defendant married his second wife Chellammal, he had executed a registered settlement deed in her favour with regard to some other properties. Hence, no provision was made in favour of the said Chellammal, towards her maintenance, in the partition deed. This document is also corroborating the averments available in Ex.A.1 that the suit property was the self aquired property of the first defendant.
11. The learned Counsel, Mr. M.V. Krishnan, appearing for the appellant / plaintiff contended that the courts below ought to have held that items 5 to 7 of the plaint schedule properties were also joint family properties. According to the learned Counsel, the trial court has not considered the admission of D.W.1 that the first defendant’s father is Perumal Naidu had left various properties and out of which 7 acres of land had been mortgaged by him and as evidenced by Ex.A1, Ex.A14, Ex.A15 and Ex.B6. The learned Counsel contended that the courts below could have decided items 5 to 7 of the suit properties are also joint family properties. In support of his contention, following decision was relied by the learned Counsel.
2006 (3) MLJ 82 (Kothanramappa v. Thimmaiah)
12. In the decision reported in 2006 (3) MLJ 82 (Kothanramappa v. Thimmaiah), at page number 83, it has been held that Under the Hindu Law, the properties stand in the name of a joint family manager, that were acquired in the course of management, as manager of the joint family, then the burden would be on the manager to prove that such acquired properties are his self-acquired properties and not joint family properties.
13. In the aforesaid Judgment, this Court has relied on a decision of the Division Bench reported in Ramaiah and Anr. v. Pechi Ammal and Ors. 1977 (1) TLNJ 7. In the light of the decision, the learned Counsel for the appellant contended that in view of the evidence adduced by D.W.1, items 5 to 7 of the plaint schedule properties should have been decided by the courts below as joint family properties of the first defendant, Rangasamy Naidu.
14. As contended by the learned Counsel for the respondents 3 and 4, the said respondents are only subsequent purchasers of the property from the first defendant, was none other than the father of the appellant, and respondents 1 and 2. Defendants 5 to 8 were also the other legal representatives of the first defendant, subsequently, impleaded after his death. Therefore, the oral evidence of D.W.1, Rangasamy Naidu cannot be taken as admission in favour of the appellant and against the said third party purchasers. As contended by the learned Counsel for the respondents 3 and 4, it is not in dispute that the first defendant Rangasamy Naidu, due to some misunderstanding between himself and his second wife Chellammal, had obtained divorce decree against his said second wife and also filed a suit for cancellation of a settlement deed executed by him in favour of Chellammal. As per Ex.A14, the certified copy of the Judgment, Rangasamy Naidu, had filed an earlier suit in O.S.No. 7/65 on the file of the Subordinate Judge, Dindigui, stating that he had married Chellammal, the defendant in the said suit in the year 1948, after executing the settlement deed, dated 21.05,1948, settling certain properties as consideration for the marriage with Chellammal. Subsequently, when the first defendant, Rangasamy Naidu, entered into a partition deed with his sons, the appellant and respondents 1 and 2 herein, while partitioning properties with his sons, he appointed Chellammal, his second wife and mother of his minor sons as their guardian. As per the certified copy of the Judgment, Rangasamy Naidu had averred that Chellammal, the defendant therein in the aforesaid suit, subsequently, had developed illicit intimacy with one Ramadoss and left Rengasami Naidu and was living with the said Ramadoss at Dindigui, and that on the said ground, Rangasamy Naidu had filed a divorce Original Petition in O.P.No. 42/1962 before the aforesaid court, under Section 13 of the Hindu Marriages Act and also obtained a decree of divorce against his second wife, Chellammal, the mother of the appellant and respondents I and 2. The said suit was decreed as prayed for in favour of Rangasamy Naidu the first defendant herein and against Chellammal. As per the original of Ex.A1, dated 29.05.1948, Rangasamy Naidu had executed the settlement deed in favour of his second wife Chellammal. As found by the trial court, in the said document, the first defendant had clearly stated that the property had been his self acquired property and the same was in his exclusive possession and enjoyment and that he executed the settlement deed in favour of his wife Chellammal, before his marriage with her. As per Ex.A2, dated 04.07.1956, there was partition between the first defendant Rangasamy Naidu and his sons, namely the appellant and respondents 1 and 2 herein. In the partition deed also, it has been clearly stated that the properties which were settled in favour of Chellammal on 29.05.1948 were the self acquired properties of Rangasamy Naidu and on account of the settlement deed, in the said partition, no separate provision was made for her maintenance. Therefore, as admitted by Rangasamy Naidu in Ex.A1 and Ex.A2 the suit properties items 5 to 7 were his self acquired properties and Rangasamy Naidu was estopped from contending any contra version against his own averments in the said documents, so as to affect the rights of third parties, namely R3 and R4. Ex.A14 and Ex.A16 are the certified copies of the decree and plaint respectively of the suit in O.S.No. 7/65 on the file of the Sub Court, Dindigul, the averments in the plaint would also probablise that items 5 to 7 of the suit properties were the self acquired properties of Rangasamy Naidu. In the sale deed, Ex.B4, dated 11.03.1971, executed pursuant to Ex.A15, sale agreement, the first defendant, Rangasamy Naidu has categorically stated that it was his self acquired property and he had acquired the same through his mother Mangammal. As per Ex.B6, the certified copy of the Judgment in O.S.No. 1371/73, it is seen that the said suit had been filed by Rangasamy Naidu, against one Loganayaki Ammal and another and the document is subsequent to the sale deed Ex.B4, As contended by the learned Counsel for the respondents 3 and 4, the document is nothing to do with the suit and the appeal. On perusal of the document referred to by the learned Counsel for the appellant in the grounds of appeal, I could find no valid material to hold that items 5 to 7 of the plaint schedule of properties were joint family properties of Rangasamy Naidu and his sons.
15. As per Ex.A4, the third respondent herein purchased, property specified therein, for a consideration of Rs. 36,000/-. The certified copy of the sale deed has been marked as Ex.A10. In Ex.A4, sale deed, as contended by the learned Counsel for the respondents 3 and 4, Rangasamy Naidu, the first defendant, as vendor has stated that he had acquired the property through his mother Mangammal and that after her demise, the properties became his self acquired properties. In the settlement deed, original of Ex.B3, dated 11.03.1971 executed by the first defendant Rangasamy Naidu in favour of his sons, the appellant and the respondents 1 and 2, it has been clearly stated that the property was his self acquired property of the first defendant and he had acquired the same through his mother Mangammal, then he executed the same in favour of his wife Chellammal, by way of settlement deed, dated 29.05.1948, as discussed above, after getting back the property, as per the decree passed in O.S.No. 7/65 on the file of the Subordinate Judge, Dindigul, he sold the same to the respondents 3 and 4. The trial court has properly analysed the evidence both oral and documentary and came to the correct conclusion that the suit properties were only the self acquired properties of the first defendant Rangasmay Naidu.
16. As discussed by the court below in the impugned Judgment, the thrid respondent Krishnasamy Naidu had entered into a sale agreement, original of Ex.A15, dated 07.09.1970 with the first defendant Rangasamy Naidu, and received a total sale consideration of Rs. 36,000/-, out of which, a sum of Rs. 7,000/- had been paid on the date of agreement, two months thereafter he paid Rs. 500/- for extension of time. Then, he paid Rs. 10,000/- to the first defendant in order to pay maintenance tohis wife Chellammal. Then, he paid Rs. 3,500/- and the balance of Rs. 15,000/- was paid to the first defendant before the Sub Registrar on the date of the sale deed. Similarly, it has been established that the fourth respondent herein paid the total sale consideration to the first defendant in respect of item No. 7. of the suit property.
17. It is not in dispute that the first defendant had three sons born through his second wife Chellammal, two daughters born through his first wife Mangammal and after having divorced Chellammal, he married his third wife Rajalakshmi, the 8th defendant and through her got the minor daughter Kalaiselvi, the 9th defendant. Therefore, there is no acceptable reason on the side of the appellant, as to why the first defendant should have executed the sale deeds as shame and nominal documents, in favour of the third and fourth respondents, who are only third parties, leaving his own sons and daughters and his third wife.
18. There is a concurrent findings by the courts below that the appellant is entitled to l/3rd share in the items 1 to 4 in the suit properties and negatived the claim of appellant / plaintiff in respect of items 5 to 7 of the suit properties, which were sold by the first defendant in favour of the third and fourth respondents. As held by the Honourable Apex Court in the above referred decisions, in this Second Appeal, this Court cannot interfere with the concurrent findings of the courts below, so far as the finding of the courts below are not perverse and there is no reason to hold that the findings recorded by the courts below as against evidence or without evidence. I am of the considered view that the courts below, have given their findings based on the evidence and the contesting respondents 3 and 4 had established that the suit properties were the self acquired properties of their vendor, Rangasamy Naidu, the first defendant in the suit. As per the averments in settlement deed, Ex.A1, dated 29.05.1948, partition deed, Ex.A2, dated 04.07.1956 and the sale deeds, Ex.B4 and Ex.B19, Rangasamy Naidu, the first defendant has categorically admitted that the properties in dispute were only the self acquired properties of the first defendant, who had acquired the same through his mother Mangammal. As contended by the learned Counsel for the respondents 3 and 4 Ex.B2, dated 10.06.1903 would also corroborate the fact that Mangammal, the mother of the first defendant had purchased the property from one Subba Nayakan and Pappa Nayakan.
19. The categorical admission made by Rangasamy Naidu in the earlier averments in favour of third parties, cannot be brushed aside by his legal heirs, by way of referring his subsequent document and oral evidence in their favour. Therefore, I am of the view that the decision reported in 2006 (3) MLJ 82 (Kothanramappa v. Thimmaiah) is not applicable for the facts and circumstances of the case on hand.
20. As contended by the learned Counsel for the appellant, the original of Ex.A9, dated 17.08.1970 executed by the first respondent / D2 in favour of his father Rangasamy Naidu stating himself as guardian of his minor brothers, namely the appellant and the second respondent herein is contrary to law, and not binding on the appellant and the second respondent and accordingly the first substantial question is answered. It is clear that Ex.A9, document would not create any new right in favour of the appellant herein and against the respondents 3 and 4 the third party purchasers of the property. Therefore, I am of the considered view that items 5 to 7 of the plaint schedule properties could not be treated as joint family properties of the first defendant and his sons, namely the appellant and respondents 1 and 2 herein. The claim of the appellant that the said properties had been purchased by his father, the first defendant with the income of joint family property is not supported by any evidence and also not sustainable in law. Therefore, I answer the second Substantial Question of Law framed in this Second Appeal against the claim of the appellant and in favour of the contesting respondents 3 and 4. As there is no error or infirmity in the concurrent findings of the court below, I am of the view that there is no need to interfere with the Judgment and Decree of the court below and hence this Second Appeal fails.
21. In the result, confirming the Judgment and Decree passed by the courts below, this Second Appeal is dismissed. However, there is no order as to costs.