{"id":183338,"date":"2003-06-19T00:00:00","date_gmt":"2003-06-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-ganesan-vs-nagarathnam-died-on-19-june-2003"},"modified":"2014-05-07T02:04:04","modified_gmt":"2014-05-06T20:34:04","slug":"n-ganesan-vs-nagarathnam-died-on-19-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-ganesan-vs-nagarathnam-died-on-19-june-2003","title":{"rendered":"N. Ganesan vs Nagarathnam (Died) on 19 June, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
N. Ganesan vs Nagarathnam (Died) on 19 June, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 19\/06\/2003\n\nCoram\n\nThe Honourable Mr. Justice P. SHANMUGAM\nand\nThe Honourable Mrs. Justice R. BANUMATHI\n\nAppeal Suit No.367 of 1985\n\nN. Ganesan                                             ..  Appellant\n\n-Vs-\n\n1. Nagarathnam (died)\n2. Saravanamurthi\n3. Manikavachagam (died)\n4. Smt. Sethulakshmi\n5. Smt. Vathsala Manickavasagam\n6. M. Sivanantham\n7. M. Nithyanandham                                     ..  Respondents\n\n   (R-2 to R-4 recorded as L.Rs.\n    of deceased R-1 as per Order\n    dt.19.7.1990 in USR 6518\/90)\n\n   (R-5 to R-7 recorded as L.Rs.\n    of deceased R-3 as per Order\n    dt.19.6.2003 passed in C.M.P.\n    No.5066 of 2003 by PSMJ & RBIJ)\n\nPRAYER :        Appeal against the Decree and Order dated 13.2.1984 passed  in\nO.S.  No.96 of 1981 on the file of the Subordinate Judge, Thanjavur.\n\n!For Appellants :  Mr.  S.V.  Jayaraman,\n                Senior Counsel for\n                M\/s.  S.  Ramu & Chandramohan.\n\n^For Respondents :  Mr.  V.K.  Vijayaraghavan\n                (for the L.Rs.  Of R-3)\n\n                No appearance for other respdts.\n\n:J U D G M E N T\n<\/pre>\n
DELIVERED BY<\/p>\n
P.  SHANMUGAM, J.\n<\/p>\n
                The first  defendant  is  the  appellant.    The  suit was for\npartition and declaration of their 4\/5th share in the suit  properties.    The\n<\/pre>\n
suit was decreed and the appeal is against the said judgment and decree.\n<\/p>\n
        2.      The  plaintiffs  are  the  mother,  sons  and daughters of one
\nNithyanandham.  The first defendant is the eldest son of Nithyanandham.    The
\nfather Nithyanandham died on 22.9.1956.  The suit properties comprise of three
\nitems consisting  of  a vacant site of about 10,000 sq.ft.  covered under Item
\nNo.1, a house site situated at Thanjavur covered under Item No.2 and  a  house
\nat Uraiyur,  Tiruchirappalli District covered under Item No.3.  All these suit
\nproperties stand in the name  of  the  first  defendant.    The  case  of  the
\nplaintiffs  is  that  Nithyanandham  was  in  service  as  Joint  Registrar of
\nCo-operative Societies and with the funds provided by Nithyanandham, the first
\nitem of the suit property was purchased in the name of the first defendant  on
\n22.3.1955 under  Exhibit  A.1.    The  second  item  of  the suit property was
\nacquired under Exhibit B.8 dated 21.10.1964 by  utilizing  the  family  funds.
\nThe third item of the suit property, a house at Tiruchy was purchased again in
\nthe  name  of  the  first  defendant  under  Exhibit  A.4  dated 3.10 .1957 by
\nutilizing the retirement benefits of late Nithyanandham.\n<\/p>\n
        3.      The further case of the plaintiffs is that the suit properties
\nare family properties intended for the benefit of the family.    According  to
\nthem,  the  vacant  plot  at Thanjavur was purchased by Nithyanandham when the
\nfirst defendant was a student and while Nithyanandham was working as the Joint
\nRegistrar of Co-operative Societies and therefore, he could not buy  the  same
\nin his  name.   It is pleaded that the first defendant could not have paid any
\nmoney towards the said purchased as he was living as a dependent of the family
\nand therefore, the plot was treated as the family property of  the  plaintiffs
\nand the  first  defendant  after  the death of Nithyanandham.  Similarly, item
\nno.3 is a house property at Tiruchy Town which was purchased after  the  death
\nof  Nithyanandham  on  3.9.1957  from  out  of  the funds due to Nithyanandham
\ntowards Insurance, Provident  Fund,  Gratuity,  etc.    The  recitals  of  the
\npurchase  deeds show that the property was purchased by the first defendant as
\n‘bghJ FLk;;gj; jiyth;’ (Joint Family Head).   The  second  item  of  the  suit
\nproperty  was purchased by the first defendant from the retirement benefits of
\nlate Nithyanandham.\n<\/p>\n
        4.      The plaintiffs also  pleaded  that  the  first  defendant  has
\nexecuted  a  release  deed, Ex.A.3 dated 11.11.1959 in order to avoid the Land
\nCeiling Act and it was done on the advice of the first  defendant  and  hence,
\nthe release  deed  came  to  be executed.  They further pleaded that the first
\ndefendant has disposed of the landed properties obtained by him after  getting
\nthe  release and that he is also trying to sell the other properties purchased
\nby him and hence the above suit for partition.\n<\/p>\n
        5.      The  first  defendant  contested  the  claim  for   partition.
\nAccording  to him, the first item of the suit property had never been a family
\nproperty much less an ancestral joint  family  property.    The  property  was
\nobtained  by  allotment  from  a  Co-operative  House Building Scheme and late
\nNithyanandham, out of love and affection towards the first defendant, gave  it
\nto  him absolutely to be owned and enjoyed by him and ever since the allotment
\nand transfer, he had been in absolute possession and  exclusive  enjoyment  by
\npaying tax, etc.  He has also made improvements on the property.  According to
\nhim,  the  second  item  of  the  suit  property  is  a self-acquired property
\npurchased from his income and the funds raised out of the sale of  the  jewels
\nbelonging to his wife and also out of the money paid by his father-in-law.  He
\ndenied  the allegation that funds were sent and provided by the family members
\nand that he had no independent income to purchase the  property.    The  first
\ndefendant  has  conceded  that  the  third  item  of  the suit property is the
\nproperty of the family and that it has to be divided among the heirs  of  late
\nNithyanandham.  He has also pleaded that he was given non-fertile lands in the
\nrelease deed and that there was a subsequent partition among the plaintiffs in
\nthe year  1973.    The  first  plaintiff, therefore, pleaded that the suit for
\npartition was not maintainable and was liable to be dismissed.\n<\/p>\n
        6.      The learned Subordinate, after considering the  matter,  found
\nthat  items 1 to 3 of the suit properties are joint family properties and that
\nlate Nithyanandham did not own the first schedule of  property  and  that  the
\nfirst  defendant  did  not  purchase  the  second item of the suit property by
\nutilizing the funds provided by his father-inlaw and sale of the jewels of the
\nwife.  The learned judge also found that the suit is not barred by  limitation
\nand accordingly  decreed  the  suit as prayed for.  The appeal is against this
\njudgment and decree.\n<\/p>\n
        7.      According to the learned senior counsel Mr.  S.V.    Jayaraman
\narguing  on behalf of the appellant, there is no joint family in order to seek
\nfor a partition as though the properties belonged to the joint family  and  in
\nany  event,  subsequent to the release in the year 1959 under Ex.A.3, there is
\ndivision in status and the suit properties were  not  treated  as  the  family
\nproperties  at any point of time either at the time of the release deed in the
\nyear 1959 or in the subsequent partition entered into between  the  plaintiffs
\nin the year 1973.  Learned senior counsel submitted that Item No.1 of the suit
\nproperty  was  purchased  in  the  name  of the first defendant from the funds
\nprovided by his father out of his love and affection towards him.  As  far  as
\nItem  No.2 is concerned, according to him, they were purchased from out of the
\nfunds provided by his father-in-law after his marriage.  Insofar as the  third
\nitem  of the suit property is concerned, the learned senior counsel is willing
\nto concede that the same can be  divided  among  the  heirs  of  Nithyanandham
\nexcluding the  first defendant.  Learned senior counsel submits that the court
\nbelow has seriously erred in finding the existence of a joint family without a
\nnucleus and overlooking the fact  that  Nithyanandham  was  earning  from  his
\nservice  as  the Joint Registrar and only from out of his own income, provided
\nfunds to the first defendant to purchase the property.    He  further  submits
\nthat  the  retirement  benefits  of  Nithyanandham  were utilized only for the
\nfamily expenses and not for buying Item No.2 of the suit property.  Therefore,
\nthe learned senior counsel seeks to set aside the decree or to modify the deed
\nexcepting Item No.3 of the suit property.\n<\/p>\n
        8.      Learned  counsel  appearing  on  behalf  of  the  respondents,
\nplaintiffs  in  the suit, strenuously pleaded that the first defendant, having
\nbeen a college student at the relevant time of the purchase of  the  property,
\nhad no funds of his own to acquire the property and he being the eldest member
\nof  the  family, the property was purchased in his name for the benefit of the
\nfamily and therefore, it should be made available to the family.   Insofar  as
\nthe second item of the suit property is concerned, by referring to the various
\nexhibits,  he submitted that funds were given to the first defendant to enable
\nhim to buy the second item of  the  suit  property  and  therefore,  the  said
\nproperty also is available for partition.  In reference to the release and the
\npartition,  the  submission of the learned counsel is that they were pertained
\nonly to the landed properties and not the  house  sites  which  are  the  suit
\nproperties.   According  to  him,  those  properties  were  kept  intact to be
\npartitioned at a later point of time.  He further  submits  that  the  learned
\ntrial  judge has given elaborate reasons for justifying the decree and submits
\nthat the said judgment does not call for any interference.\n<\/p>\n
        9.      We have heard the learned senior counsel for the appellant and
\nthe learned counsel for the respondents and considered the matter carefully.\n<\/p>\n
        10.     It is not in dispute that there was a partition  in  the  year
\n1973  in reference to the landed properties and earlier, a release deed in the
\nyear 1959 in reference to the landed properties which were approximately to  a
\ntotal extent  of 40 acres of land.  It is not convincingly explained as to why
\nthe house properties, which are the subject matter of the present  suit,  were
\nnot included  if  they  really  were  joint  family  properties.   The learned
\nSubordinate Judge failed to consider whether  there  was  a  joint  family  in
\nexistence  consisting  of  late  Nithyanandham  and  his  sons and whether the
\nproperty was purchased in the name of one of the sons for the benefit  of  the
\njoint family.   The reason advanced by the plaintiffs is that the purchase was
\nbanami in order to avoid the Government Servants’ Conduct  Rules.    The  said
\nargument is  not  sustainable.    It  is  an  admitted  fact that all the suit
\nproperties as well as  the  landed  properties  were  acquired  only  by  late
\nNithyanandham.  There  was  no  ancestral  nucleus  and  income.    The landed
\nproperties were purchased in the name of Nithyanandham, whereas the first item
\nof the suit property was obtained in the  name  of  the  first  defendant,  of
\ncourse from the funds provided by his father.  There is no no reason as to why
\nhe should provide funds to the first defendant when he could have purchased it
\nin the  name  of his wife or the other children.  Besides, there is absolutely
\nno explanation as to why even  the  after  the  death  of  Nithyanandham,  the
\nproperty continued to be enjoyed by the first defendant and was treated as his
\nproperty,  as evidenced by the release deed of the year 1959 and the partition
\ndeed of the year 1973.  The acceptance of the right of the first defendant for
\nnearly 20 years speaks loudly against the present claim of the plaintiffs that
\nthe property was purchased benami in the name of the first defendant.\n<\/p>\n
        11.     As rightly pointed out, there is  no  nucleus  for  the  joint
\nfamily  consisting  of  Nithyanandham  and  his  sons  so as to claim that the
\nproperties purchased in the name of first defendant should be  made  available
\nfor the joint family.  The facts that the suit properties were not included in
\nthe  year  1959  when the release deeds were obtained from the first defendant
\nand when partition was executed in the year 19 73 which  the  first  defendant
\nhas  attested,  all  goes to show that the first item of the suit property was
\npurchased, kept and treated as the properties of  the  first  defendant.    As
\npointed out, it is the specific case of the first defendant that though he was
\na  college  student,  he had purchased the property from the funds provided by
\nNithyanandham.  In the absence of any joint family, it has to  be  taken  that
\nthe  first  defendant  has  purchased  the property in his name from the funds
\nprovided by his father and hence, the same cannot be treated as  joint  family
\nproperty in order to make it available for partition.\n<\/p>\n
        12.     The  second  item  of  the  suit property is covered by Ex.B.8
\ndated 21.10.1964 which was purchased for a total  consideration  of  Rs.18,200
\n\/-.  The  first  defendant got married on 12.2.1959.  According to him, he had
\nbeen provided with a fund of Rs.10,000\/- as gift by his father-in-law when  he
\nwent  to his house for the first time for the Aadi function and states that it
\nis an usual custom to provide such gifts to the son-in-law.  It is in evidence
\nthat the sum of Rs.10,000\/- was put in a fixed deposit as per Ex.B.2 and  when
\nit  matured  after  two  years  on  3.10.1964, by Ex.B.8 dated 21.10.1964, the
\nsecond item of the suit property was purchased.  It is further  evidence  that
\nthe  maturity value of Rs.10,000\/- was Rs.14,985\/- and the remaining amount of
\nRs.3,315.15 was provided by his father-in-law.    According  to  him,  Ex.B.9,
\nletter  given  by  the  vendor  of  the  second item and the further documents
\nevidencing the payment of the remaining  instalments  namely  Exs.B.10,  B.12,
\nB.16  as  also  the sale deed executed by the Society by Ex.B.11 show that the
\nsecond item of the suit property was acquired by the first  defendant  in  his
\nindividual capacity.\n<\/p>\n
        13.     The   second   defendant   had   also   examined   P.W.3,  his
\nfather-in-law who had confirmed the above evidence.  The fatherin-law  was  a
\nContractor  besides  having  functioned  as  the  Chairman  of  the  Thanjavur
\nMunicipality, President of the Thanjavur Co-operative Society for nearly  1  4
\nyears,  President  of  the Thanjavur Land Development Bank for nearly 12 years
\nand further, he had also functioned as the Vice  President  of  the  Thanjavur
\nPermanent  Bank  and  Director of the Thanjavur District Co-operative Bank for
\nnearly seven to eight years.  He had  stated  in  his  evidence  that  he  had
\nwillingly  agreed  to  provide  a house to his son-in-law and accordingly gave
\nRs.10,000\/- for being deposited in fixed  deposit  besides  providing  further
\nfunds for the purchase of the property.\n<\/p>\n
        14.     The oral evidence of P.W.1, the Senior Assistant of the F.D.F.
\nSection  of  the  Tiruchy  Central  Co-operative  Bank  reveals the deposit of
\nRs.10,000\/- in the name of the first defendant, as evidenced  by  Exs.B.2  and
\nB.3.   The initial deposit made in the year 1959 was renewed for two years and
\nthe said amount matured on 23.9.1961 and it was further  renewed  for  another
\nthree years and then, it matured on 31.10 .1964.\n<\/p>\n
        15.     P.W.3,  the  father-in-law  of the first defendant has clearly
\nstated that he had agreed to provide a house to  his  daughter  and  for  that
\npurpose,  when his son-in-law came to his house for the Aadi function, he gave
\nhim Rs.10,000\/- as gift, which was deposited in a fixed deposit.  He has  also
\nstated  that  he  had  helped the first defendant to purchase Item No.2 of the
\nsuit property and during that time, the first defendant was functioning  as  a
\nlawyer,  that the second item of the suit property was under his accommodation
\nand control and that the family of the plaintiffs did not  provide  any  money
\nfor the  purchase of this property.  P.W.3 has withstood the cross-examination
\nand has reiterated the provision made by him for the purchase of the  property
\nto the  first defendant.  There is no reason as to why the evidence of P.Ws.1,
\n2 and 3 in reference to the purchase of this property should be rejected.   On
\nthe  contrary, the evidence provided by the plaintiffs in this regard is vague
\nand lacking in clarity.\n<\/p>\n
        16.     The case of P.W.1 is that when her husband died, they were  at
\nMadras  and  after  his  demise,  they  shifted  their  residence  to Tiruchy.
\nAccording to them, the account standing in the name of the first defendant  in
\nthe  year 1957 was transferred to the Tiruchy Branch, as evidenced by Ex.A.25.
\nApart from this transfer of the Savings Bank  Account,  the  counsel  for  the
\nplaintiff  is  not in a position to prove the evidence in reference to the use
\nof the Gratuity and other retirement benefits of late Nithyanandham and as  to
\nhow those  funds  were  dealt  with.   The transfer amount in the year 1957 of
\nRs.10,000\/- is not corelated with the alleged Gratuity  and  other  retirement
\nbenefits.   The plaintiff wants to infer that it is this amount of Rs.10,000\/-
\nthat was deposited in the year 1959.  There is absolutely no evidence to  show
\nthat the funds were utilized from the Savings Bank Account for the purchase of
\nthe second  item of the suit property.  On the other hand, the first defendant
\nhimself concedes that the third item of the suit  property  was  purchased  on
\n3.9.1957  by  utilizing  the Gratuity, Insurance amounts of late Nithyanandham
\nand the sale of the car, etc.  The timing of the death of  Nithyanandham,  the
\ntransfer  of the funds and the purchase of the third item of the suit property
\nand the recitals in the deed would  clearly  show  that  the  third  item  was
\npurchased  for  and on behalf of the family as the elder member of the family.
\nThe first defendant is prepared to concede that this property  could  be  made
\navailable for  partition.    The  contrary  finding of the learned Subordinate
\nJudge in reference to the second item of the suit property cannot be sustained
\nand it is erroneous.  Learned counsel for the respondents is not in a position
\nto correlate his submissions with any documentary evidence to  establish  that
\nfunds  were  sent from Madras to Tiruchy and that the same were made available
\nfor the purchase of the property covered under Ex.A.2.   After  going  through
\nthese exhibits, we find that there is no correlation or any connecting link to
\nprove  that  the  retirement benefits were deposited in the bank at Madras and
\nthat the same were transferred for the purchase of this property.\n<\/p>\n
        17.     From the above, it is clear that the submission of the learned
\ncounsel for the respondents cannot be accepted in the absence of a clear proof
\nto show that that the retirement benefits of the father were utilized for  the
\npurchase of  the  second item of the suit property.  Coupled with this factual
\nposition namely that the partition and the division that had  taken  place  in
\nthe  family  of  the  plaintiffs  and  the  first defendant excluding the suit
\nproperties, the fact that the properties standing in the  name  of  the  first
\ndefendant  is purchased and enjoyed by the first defendant as his own property
\ncannot be in dispute.\n<\/p>\n
        18.     Learned senior counsel for the appellant himself has  conceded
\nthe position in reference to the third item of the suit property.  As a matter
\nof fact, in the written statement itself, in paragraph 10, the first defendant
\nhas  stated  that  the  third item of the suit property is the property of the
\nfamily and that it has to be divided among the heirs of Nithyanandham.\n<\/p>\n
        19.     In the above circumstances,  we  are  of  the  view  that  the
\njudgment  of  the  learned  Sub  Judge cannot be sustained and needs to be set
\naside to the extent of the decree in reference to  Item  Nos.1  and  2.    The
\ndecree  for  partition  is confirmed only to the extent of Item No.3 and there
\nwill be a preliminary decree for partition in reference to the third  item  of
\nthe suit  property.    As  stated  above,  the  learned senior counsel for the
\nappellant has submitted that the appellant is not interested in  claiming  any
\nright  in  reference to the third item of the suit property even though he had
\nclaimed a share in the same in his written statement and is willing to give up
\nhis right in reference to the third item.  Accordingly,  while  setting  aside
\nthe  decree  in reference to Item Nos.1 and 2, we are of the view that insofar
\nas Item No.3 of the suit property is concerned,  the  shares  other  than  the
\nappellant are  entitled  to be divided equally.  The appeal is allowed to that
\nextent..  There will be no order as to costs.\n<\/p>\n
                C.M.P.  No.5066 of 2003 is ordered.\n<\/p>\n
ab<\/p>\n
Index :  Yes
\nWebsite :  Yes<\/p>\n
To<\/p>\n
1.  The Subordinate Judge,
\nThanjavur (With Records, if any).\n<\/p>\n
2.  The Record Keeper,
\nV.R.  Section,
\nHigh Court,
\nChennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N. Ganesan vs Nagarathnam (Died) on 19 June, 2003 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-183338","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN. 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