IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.03.2011 CORAM : THE HON'BLE MR.JUSTICE G. RAJASURIA S.A. No. 1361 of 2010 and M.P. No. 1 of 2010 R. Duraisamy .. Appellant Versus 1. Ramasamy Gounder 2. M.R. Thangaraj 3. R. Kandasamy 4. Shanmugasundaram .. Respondents Appeal filed under Section 100 of CPC against the Decree and Judgment dated 07.07.2010 passed in A.S. No. 125 of 2009 on the file of the Principal District Judge, Erode confirming the Decree and Judgment dated 21.08.2009 made in O.S. No. 84 of 2007 on the file of First Additional Subordinate Judge, Erode. For Appellant : Mr. S. Parthasarathy, Senior Counsel for Mr. S.T.S. Murthi For Respondents : Mr. T.L. Ram Mohan, Senior Counsel for Mr. Y. Prakash for R4 RR1 to 3 given up JUDGMENT
The parties are referred to here under according to their litigative status and ranking before the trial court.
2. A recapitulation and resume of facts which are absolutely necessary and germane for disposal of the second appeal wound run thus:-
(a) The Plaintiff Duraisamy filed the suit in O.S. No. 84 of 2007 before the trial court seeking the following reliefs:-
“(a) To pass a decree and judgment in favour of the plaintiff directing the division of the suit properties into 4 equal shares by metes and bounds with reference to good and bad soil and allot one such share therein to the plaintiff and put the same in his separate possession.
(b) granting a permanent injunction restraining the 4th defendant and his men and agents from taking possession of the 3rd item of the suit properties inclusive of the plaintiff’s 1/4th share without permanent partition and convert the same as house site or in any other manner till final partition takes place in the above suit:
(c) appointing a commissioner to effect division of the suit properties in the aforesaid manner;
(d) directing the defendants to pay the cost of the suit to the plaintiff.
(Extracted as such)
(b) Written statement was filed by the second and fourth defendants resisting the suit, while the defendants 1 and 3 remained exparte.
(c) Whereupon, the trial court framed the relevant issues.
(d) The Plaintiff Duraisamy examined himself as PW1 and one Palanisamy as PW2 and Exs. A1 to A15 were marked. On the side of the defendants, the fourth defendant Shanmugasundaram was examined as DW1 and Exs. B1 to B19 were marked.
(e) Ultimately, the trial court decreed the suit in respect of item Nos. 1 and 2 of the suit property and passed a preliminary decree of partition and dismissed the suit in respect of item No.3 holding that the said property is not a joint family property liable to be partitioned as it happens to be the self acquired property of Ramasamy Gounder, the first defendant in the suit. Being aggrieved and dissatisfied with, the plaintiff has filed a first appeal before the first appellate Court for nothing but to be dismissed confirming the judgment and decree of the trial court. Challenging and impugning the decree and judgment of both the courts below, the plaintiff has come forward with this second appeal on various grounds inter alia to the effect that the courts below failed to take into account the factual as well as legal issues.
3. My learned predecessor, at the time of admission of this second appeal, framed the following substantial questions of law:-
(i) Whether the Court is empowered to substitute its assumption and presumption to grant the relief of partition
(ii) Whether an adverse inference could be drawn against the claim of the appellant in the suit filed by the appellant for the simple reason that the second respondent filed an earlier suit of his own and subsequently withdrew the same
(iii) Whether the proof of ancestral nucleus to purchase a property in the name of the Karta of the joint family is sufficient to hold that the said property is also a joint family property
(iv) When the third item of the suit property stands in the name of the Kartha, whether the lower appellate Court is correct in law in holding that it is his absolute property contrary to the axiomatic principle in law that the property standing in the name of Kartha is presumed to be joint family property unless it is proved that the Kartha had surplus income and had not purchased it from the income of joint family property?
(v) Whether the lower appellate Court is correct in law in holding that Section 34 of SARFAESI Act is a bar to file a suit for partition by a co-parcener?
(Extracted as such)
4. Heard both sides. The question of law Nos. 1 to 4 are taken up together for discussion as they are inter-linked and interconnected with each other.
5. The first defendant Ramasamy Gounder is the father of the plaintiff and the defendants 2 and 3. Ramasamy Gounder purchased the third item of the property by virtue of a sale deed, Ex.A6 dated 07.09.1989. As evidenced, a partition effected between Ramasamy Gounder and his brothers under Ex.A1 dated 22.03.1991. Subsequently, in respect of some other items of the property, another partition deed under Ex.A2 dated 25.11.1998 emerged among the said co-parceners. The fact remains that the said item No.3 of the suit property was not included in either of the partition deed since it was not a joint family property in the hands of Ramasamy Gounder, which is also not liable for partition among Ramasamy Gounder and his three sons, but both the Courts below committed an error in not granting the relief of partition in respect of item No.3 of the suit property.
6. Per contra, in a bid to torpedo and pulverse the arguments as putforth and setforth on the side of the appellants, the learned counsel for the defendants/respondents herein would advance his arguments, which could tersely and briefly be set out thus:-
(a) The fourth defendant is the third party purchaser of item No.3 of the suit property in an auction sale conducted by the Debt Recovery Tribunal in the process of recovering the dues towards Bank of Baroda on the ground that the first defendant stood as guarantor by furnishing the said property as security for the debt incurred by a company of which the third defendant happened tobe one of the Director.
(b) Indisputably and uncontrovertibly, item No.3 of the suit property was purchased by Ramasamy Gounder even in the year 1989 and thereafter, two partition deeds emerged among Ramasamy Gounder and his brothers and in none of the partition deeds, item No.3 figured as the subject matter of partition, which would demonstrate and display that this property was never intended to be the joint family property of Ramasamy Gounder and his brothers and in such a case, it is too late in the day on the part of the sons of Ramasamy to contend that item No.3 happened tobe the co-parcenery property or joint family property which is liable to be partitioned. Both the courts below correctly decided the issues involved in the case which warrants no interference by this Court in this second appeal.
7. Heard both sides. The incontrovertible or atleast the undeniable facts are to the effect that the third item of the suit property was purchased by Ramasamy Gounder, father of the plaintiff, the defendants 2 and 3 during the year 1989 by virtue of Ex.A6, sale deed dated 07.09.1989 and at that time, there was no partition among the brothers of Ramasamy Gounder. It is a fact conceivable and understandable that if really item No.3 of the suit property was purchased from and out of the joint family income of Ramasamy Gounder and his brothers, certainly, they would not have kept quiet without subjecting the said item of the property also for partition. Earlier two partition deeds emerged among the co-parceners but in none of the partition deeds, item No.3 of the suit property figured as an item. The fourth defendant also specifically canvassed that the said item of the property was not the joint family property liable for partition. The competent person to speak about the alleged fact that item No.3 happened to be the joint family property was Ramasamy Gounder himself or his brothers but the sons of Ramasamy Gounder in no way could claim to have any personal knowledge about the source with which Ramasamy Gounder purchased the property. Preponderance of probabilities are governing the adjudication in the civil case. In this case, the probabilities are in favour of the fourth defendant, who would contend that item No.3 was not one among the joint family properties and that was the reason why it was left out from the purview partition is having force.
8. The item No.3 of the suit property stood in the name of the first defendant. If really the property was a joint family property and the brothers of the first defendant had any co-parcenery right, they would have laid claim over the property. Unless the presumption is rebutted by the other co-parcener contending that the said item also forming part of the joint family property, it cannot be held that the said property is a joint family property. Here, there is nothing to indicate and demonstrate that the said item was put into the common hotch potch of the other coparcenery of Ramasamy Gounder and his three sons. This would clearly and axiomatically, palpably and undisputably, exemplify and demonstrate that the brothers of the first defendant never claimed any co-parcenary right. In such a case, in the absence of any evidence, it cannot be held that the presumption, as set out supra, got rebutted and that the third item of the suit property should be treated as joint family property. Had Ramasamy Gounder, as Kartha of co-parceners comprised of himself and his three sons purchased the property, then at least there will be a presumption that the Kartha might have purchased the property from and out of the joint family income. But there is nothing to show that Ramasamy Gounder was the Kartha of Joint family property, namely Item No.3 of the suit property, comprised of himself and his brothers, because, he happened to be the second in filial rank. Hence, it is clear that item No.3 of the suit property cannot be treated as joint family property and I am of the considered view that both the courts below, by citing justifiable reasons, arrived at the correct conclusion in rejecting the claim of the plaintiff and it warrants no interference by this Court. Accordingly, substantial questions of law 1 to 4 are answered against the plaintiff/appellant.
9. As far as substantial question of law No.5 is concerned, the learned counsel for the plaintiff relied on the decision reported in (Nahar Industrial Enterprises Limited vs. Hong Kong and Shanghai Banking Corporation) (2009) 8 SCC 646 to contend that a civil suit may also be maintainable and there is no bar Under Section 34 of SARFAESI Act for instituting a suit for partition by a co-parcener. However, the learned senior counsel appearing for both sides in unison would submit that substantial question of Law No.5 relates to bar of Section 34 of SARFAESI Act to file a suit for partition which would not arise in this case at all for the reasons that, in the written statement filed by the defendants before the trial court, they did not raise the plea as to the jurisdiction of the trial court to entertain the suit at all. In such case, the courts below fell into an error in discussing the facts concerning Section 34 and also the jurisdiction of the Court. In this case, there was no pleadings relating to Section 34 of SARFAESI Act made by the parties before the Courts below and therefore I am of the considered view that there is no need or necessity to decide this question of law in this second appeal. Certain passing remarks made by the trial court or the first appellate court were not warranted because, as rightly pointed out by the learned senior counsel for both sides, the auction sale itself was not conducted by invoking the provisions of SARFAESI Act and it was only under the Recovery of Debts due to the Bank and Financial Institutions Act.
10. Accordingly, the decree and judgment made by both the courts below are confirmed. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
rsh
To
1. The Subordinate Judge
Sub Court
Mettur
2. The District Munsif
District Munsif Court
Mettur