IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19/06/2003
Coram
The Honourable Mr. Justice P. SHANMUGAM
and
The Honourable Mrs. Justice R. BANUMATHI
Appeal Suit No.367 of 1985
N. Ganesan .. Appellant
-Vs-
1. Nagarathnam (died)
2. Saravanamurthi
3. Manikavachagam (died)
4. Smt. Sethulakshmi
5. Smt. Vathsala Manickavasagam
6. M. Sivanantham
7. M. Nithyanandham .. Respondents
(R-2 to R-4 recorded as L.Rs.
of deceased R-1 as per Order
dt.19.7.1990 in USR 6518/90)
(R-5 to R-7 recorded as L.Rs.
of deceased R-3 as per Order
dt.19.6.2003 passed in C.M.P.
No.5066 of 2003 by PSMJ & RBIJ)
PRAYER : Appeal against the Decree and Order dated 13.2.1984 passed in
O.S. No.96 of 1981 on the file of the Subordinate Judge, Thanjavur.
!For Appellants : Mr. S.V. Jayaraman,
Senior Counsel for
M/s. S. Ramu & Chandramohan.
^For Respondents : Mr. V.K. Vijayaraghavan
(for the L.Rs. Of R-3)
No appearance for other respdts.
:J U D G M E N T
DELIVERED BY
P. SHANMUGAM, J.
The first defendant is the appellant. The suit was for partition and declaration of their 4/5th share in the suit properties. The
suit was decreed and the appeal is against the said judgment and decree.
2. The plaintiffs are the mother, sons and daughters of one
Nithyanandham. The first defendant is the eldest son of Nithyanandham. The
father Nithyanandham died on 22.9.1956. The suit properties comprise of three
items consisting of a vacant site of about 10,000 sq.ft. covered under Item
No.1, a house site situated at Thanjavur covered under Item No.2 and a house
at Uraiyur, Tiruchirappalli District covered under Item No.3. All these suit
properties stand in the name of the first defendant. The case of the
plaintiffs is that Nithyanandham was in service as Joint Registrar of
Co-operative Societies and with the funds provided by Nithyanandham, the first
item of the suit property was purchased in the name of the first defendant on
22.3.1955 under Exhibit A.1. The second item of the suit property was
acquired under Exhibit B.8 dated 21.10.1964 by utilizing the family funds.
The third item of the suit property, a house at Tiruchy was purchased again in
the name of the first defendant under Exhibit A.4 dated 3.10 .1957 by
utilizing the retirement benefits of late Nithyanandham.
3. The further case of the plaintiffs is that the suit properties
are family properties intended for the benefit of the family. According to
them, the vacant plot at Thanjavur was purchased by Nithyanandham when the
first defendant was a student and while Nithyanandham was working as the Joint
Registrar of Co-operative Societies and therefore, he could not buy the same
in his name. It is pleaded that the first defendant could not have paid any
money towards the said purchased as he was living as a dependent of the family
and therefore, the plot was treated as the family property of the plaintiffs
and the first defendant after the death of Nithyanandham. Similarly, item
no.3 is a house property at Tiruchy Town which was purchased after the death
of Nithyanandham on 3.9.1957 from out of the funds due to Nithyanandham
towards Insurance, Provident Fund, Gratuity, etc. The recitals of the
purchase deeds show that the property was purchased by the first defendant as
‘bghJ FLk;;gj; jiyth;’ (Joint Family Head). The second item of the suit
property was purchased by the first defendant from the retirement benefits of
late Nithyanandham.
4. The plaintiffs also pleaded that the first defendant has
executed a release deed, Ex.A.3 dated 11.11.1959 in order to avoid the Land
Ceiling Act and it was done on the advice of the first defendant and hence,
the release deed came to be executed. They further pleaded that the first
defendant has disposed of the landed properties obtained by him after getting
the release and that he is also trying to sell the other properties purchased
by him and hence the above suit for partition.
5. The first defendant contested the claim for partition.
According to him, the first item of the suit property had never been a family
property much less an ancestral joint family property. The property was
obtained by allotment from a Co-operative House Building Scheme and late
Nithyanandham, out of love and affection towards the first defendant, gave it
to him absolutely to be owned and enjoyed by him and ever since the allotment
and transfer, he had been in absolute possession and exclusive enjoyment by
paying tax, etc. He has also made improvements on the property. According to
him, the second item of the suit property is a self-acquired property
purchased from his income and the funds raised out of the sale of the jewels
belonging to his wife and also out of the money paid by his father-in-law. He
denied the allegation that funds were sent and provided by the family members
and that he had no independent income to purchase the property. The first
defendant has conceded that the third item of the suit property is the
property of the family and that it has to be divided among the heirs of late
Nithyanandham. He has also pleaded that he was given non-fertile lands in the
release deed and that there was a subsequent partition among the plaintiffs in
the year 1973. The first plaintiff, therefore, pleaded that the suit for
partition was not maintainable and was liable to be dismissed.
6. The learned Subordinate, after considering the matter, found
that items 1 to 3 of the suit properties are joint family properties and that
late Nithyanandham did not own the first schedule of property and that the
first defendant did not purchase the second item of the suit property by
utilizing the funds provided by his father-inlaw and sale of the jewels of the
wife. The learned judge also found that the suit is not barred by limitation
and accordingly decreed the suit as prayed for. The appeal is against this
judgment and decree.
7. According to the learned senior counsel Mr. S.V. Jayaraman
arguing on behalf of the appellant, there is no joint family in order to seek
for a partition as though the properties belonged to the joint family and in
any event, subsequent to the release in the year 1959 under Ex.A.3, there is
division in status and the suit properties were not treated as the family
properties at any point of time either at the time of the release deed in the
year 1959 or in the subsequent partition entered into between the plaintiffs
in the year 1973. Learned senior counsel submitted that Item No.1 of the suit
property was purchased in the name of the first defendant from the funds
provided by his father out of his love and affection towards him. As far as
Item No.2 is concerned, according to him, they were purchased from out of the
funds provided by his father-in-law after his marriage. Insofar as the third
item of the suit property is concerned, the learned senior counsel is willing
to concede that the same can be divided among the heirs of Nithyanandham
excluding the first defendant. Learned senior counsel submits that the court
below has seriously erred in finding the existence of a joint family without a
nucleus and overlooking the fact that Nithyanandham was earning from his
service as the Joint Registrar and only from out of his own income, provided
funds to the first defendant to purchase the property. He further submits
that the retirement benefits of Nithyanandham were utilized only for the
family expenses and not for buying Item No.2 of the suit property. Therefore,
the learned senior counsel seeks to set aside the decree or to modify the deed
excepting Item No.3 of the suit property.
8. Learned counsel appearing on behalf of the respondents,
plaintiffs in the suit, strenuously pleaded that the first defendant, having
been a college student at the relevant time of the purchase of the property,
had no funds of his own to acquire the property and he being the eldest member
of the family, the property was purchased in his name for the benefit of the
family and therefore, it should be made available to the family. Insofar as
the second item of the suit property is concerned, by referring to the various
exhibits, he submitted that funds were given to the first defendant to enable
him to buy the second item of the suit property and therefore, the said
property also is available for partition. In reference to the release and the
partition, the submission of the learned counsel is that they were pertained
only to the landed properties and not the house sites which are the suit
properties. According to him, those properties were kept intact to be
partitioned at a later point of time. He further submits that the learned
trial judge has given elaborate reasons for justifying the decree and submits
that the said judgment does not call for any interference.
9. We have heard the learned senior counsel for the appellant and
the learned counsel for the respondents and considered the matter carefully.
10. It is not in dispute that there was a partition in the year
1973 in reference to the landed properties and earlier, a release deed in the
year 1959 in reference to the landed properties which were approximately to a
total extent of 40 acres of land. It is not convincingly explained as to why
the house properties, which are the subject matter of the present suit, were
not included if they really were joint family properties. The learned
Subordinate Judge failed to consider whether there was a joint family in
existence consisting of late Nithyanandham and his sons and whether the
property was purchased in the name of one of the sons for the benefit of the
joint family. The reason advanced by the plaintiffs is that the purchase was
banami in order to avoid the Government Servants’ Conduct Rules. The said
argument is not sustainable. It is an admitted fact that all the suit
properties as well as the landed properties were acquired only by late
Nithyanandham. There was no ancestral nucleus and income. The landed
properties were purchased in the name of Nithyanandham, whereas the first item
of the suit property was obtained in the name of the first defendant, of
course from the funds provided by his father. There is no no reason as to why
he should provide funds to the first defendant when he could have purchased it
in the name of his wife or the other children. Besides, there is absolutely
no explanation as to why even the after the death of Nithyanandham, the
property continued to be enjoyed by the first defendant and was treated as his
property, as evidenced by the release deed of the year 1959 and the partition
deed of the year 1973. The acceptance of the right of the first defendant for
nearly 20 years speaks loudly against the present claim of the plaintiffs that
the property was purchased benami in the name of the first defendant.
11. As rightly pointed out, there is no nucleus for the joint
family consisting of Nithyanandham and his sons so as to claim that the
properties purchased in the name of first defendant should be made available
for the joint family. The facts that the suit properties were not included in
the year 1959 when the release deeds were obtained from the first defendant
and when partition was executed in the year 19 73 which the first defendant
has attested, all goes to show that the first item of the suit property was
purchased, kept and treated as the properties of the first defendant. As
pointed out, it is the specific case of the first defendant that though he was
a college student, he had purchased the property from the funds provided by
Nithyanandham. In the absence of any joint family, it has to be taken that
the first defendant has purchased the property in his name from the funds
provided by his father and hence, the same cannot be treated as joint family
property in order to make it available for partition.
12. The second item of the suit property is covered by Ex.B.8
dated 21.10.1964 which was purchased for a total consideration of Rs.18,200
/-. The first defendant got married on 12.2.1959. According to him, he had
been provided with a fund of Rs.10,000/- as gift by his father-in-law when he
went to his house for the first time for the Aadi function and states that it
is an usual custom to provide such gifts to the son-in-law. It is in evidence
that the sum of Rs.10,000/- was put in a fixed deposit as per Ex.B.2 and when
it matured after two years on 3.10.1964, by Ex.B.8 dated 21.10.1964, the
second item of the suit property was purchased. It is further evidence that
the maturity value of Rs.10,000/- was Rs.14,985/- and the remaining amount of
Rs.3,315.15 was provided by his father-in-law. According to him, Ex.B.9,
letter given by the vendor of the second item and the further documents
evidencing the payment of the remaining instalments namely Exs.B.10, B.12,
B.16 as also the sale deed executed by the Society by Ex.B.11 show that the
second item of the suit property was acquired by the first defendant in his
individual capacity.
13. The second defendant had also examined P.W.3, his
father-in-law who had confirmed the above evidence. The fatherin-law was a
Contractor besides having functioned as the Chairman of the Thanjavur
Municipality, President of the Thanjavur Co-operative Society for nearly 1 4
years, President of the Thanjavur Land Development Bank for nearly 12 years
and further, he had also functioned as the Vice President of the Thanjavur
Permanent Bank and Director of the Thanjavur District Co-operative Bank for
nearly seven to eight years. He had stated in his evidence that he had
willingly agreed to provide a house to his son-in-law and accordingly gave
Rs.10,000/- for being deposited in fixed deposit besides providing further
funds for the purchase of the property.
14. The oral evidence of P.W.1, the Senior Assistant of the F.D.F.
Section of the Tiruchy Central Co-operative Bank reveals the deposit of
Rs.10,000/- in the name of the first defendant, as evidenced by Exs.B.2 and
B.3. The initial deposit made in the year 1959 was renewed for two years and
the said amount matured on 23.9.1961 and it was further renewed for another
three years and then, it matured on 31.10 .1964.
15. P.W.3, the father-in-law of the first defendant has clearly
stated that he had agreed to provide a house to his daughter and for that
purpose, when his son-in-law came to his house for the Aadi function, he gave
him Rs.10,000/- as gift, which was deposited in a fixed deposit. He has also
stated that he had helped the first defendant to purchase Item No.2 of the
suit property and during that time, the first defendant was functioning as a
lawyer, that the second item of the suit property was under his accommodation
and control and that the family of the plaintiffs did not provide any money
for the purchase of this property. P.W.3 has withstood the cross-examination
and has reiterated the provision made by him for the purchase of the property
to the first defendant. There is no reason as to why the evidence of P.Ws.1,
2 and 3 in reference to the purchase of this property should be rejected. On
the contrary, the evidence provided by the plaintiffs in this regard is vague
and lacking in clarity.
16. The case of P.W.1 is that when her husband died, they were at
Madras and after his demise, they shifted their residence to Tiruchy.
According to them, the account standing in the name of the first defendant in
the year 1957 was transferred to the Tiruchy Branch, as evidenced by Ex.A.25.
Apart from this transfer of the Savings Bank Account, the counsel for the
plaintiff is not in a position to prove the evidence in reference to the use
of the Gratuity and other retirement benefits of late Nithyanandham and as to
how those funds were dealt with. The transfer amount in the year 1957 of
Rs.10,000/- is not corelated with the alleged Gratuity and other retirement
benefits. The plaintiff wants to infer that it is this amount of Rs.10,000/-
that was deposited in the year 1959. There is absolutely no evidence to show
that the funds were utilized from the Savings Bank Account for the purchase of
the second item of the suit property. On the other hand, the first defendant
himself concedes that the third item of the suit property was purchased on
3.9.1957 by utilizing the Gratuity, Insurance amounts of late Nithyanandham
and the sale of the car, etc. The timing of the death of Nithyanandham, the
transfer of the funds and the purchase of the third item of the suit property
and the recitals in the deed would clearly show that the third item was
purchased for and on behalf of the family as the elder member of the family.
The first defendant is prepared to concede that this property could be made
available for partition. The contrary finding of the learned Subordinate
Judge in reference to the second item of the suit property cannot be sustained
and it is erroneous. Learned counsel for the respondents is not in a position
to correlate his submissions with any documentary evidence to establish that
funds were sent from Madras to Tiruchy and that the same were made available
for the purchase of the property covered under Ex.A.2. After going through
these exhibits, we find that there is no correlation or any connecting link to
prove that the retirement benefits were deposited in the bank at Madras and
that the same were transferred for the purchase of this property.
17. From the above, it is clear that the submission of the learned
counsel for the respondents cannot be accepted in the absence of a clear proof
to show that that the retirement benefits of the father were utilized for the
purchase of the second item of the suit property. Coupled with this factual
position namely that the partition and the division that had taken place in
the family of the plaintiffs and the first defendant excluding the suit
properties, the fact that the properties standing in the name of the first
defendant is purchased and enjoyed by the first defendant as his own property
cannot be in dispute.
18. Learned senior counsel for the appellant himself has conceded
the position in reference to the third item of the suit property. As a matter
of fact, in the written statement itself, in paragraph 10, the first defendant
has stated that the third item of the suit property is the property of the
family and that it has to be divided among the heirs of Nithyanandham.
19. In the above circumstances, we are of the view that the
judgment of the learned Sub Judge cannot be sustained and needs to be set
aside to the extent of the decree in reference to Item Nos.1 and 2. The
decree for partition is confirmed only to the extent of Item No.3 and there
will be a preliminary decree for partition in reference to the third item of
the suit property. As stated above, the learned senior counsel for the
appellant has submitted that the appellant is not interested in claiming any
right in reference to the third item of the suit property even though he had
claimed a share in the same in his written statement and is willing to give up
his right in reference to the third item. Accordingly, while setting aside
the decree in reference to Item Nos.1 and 2, we are of the view that insofar
as Item No.3 of the suit property is concerned, the shares other than the
appellant are entitled to be divided equally. The appeal is allowed to that
extent.. There will be no order as to costs.
C.M.P. No.5066 of 2003 is ordered.
ab
Index : Yes
Website : Yes
To
1. The Subordinate Judge,
Thanjavur (With Records, if any).
2. The Record Keeper,
V.R. Section,
High Court,
Chennai.