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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T.V. MASILAMANI
Amudha & Others - Appellant
Versus
K.Jeyaraman & Another - Respondents
Second Appeal No.997 of 1994
Decided On : 08 February 2005
Joint Family Property - Partition - Indian Stamp Act, 1899, Section 35; Indian Registration Act, 1908, Section 17 - The court held that the suit properties were the self-acquired properties of the 1st defendant and not the joint family properties of the plaintiffs and the 1st defendant available for partition. The unstamped and unregistered document, Ex.A-9, was found inadmissible in evidence, and the plea that the suit properties were purchased out of the ancestral nucleus had not been proved by satisfactory evidence. The court also upheld the finding that the factum of marriage between the 1st appellant and the 1st respondent was not disputed, and the contention put forth by the 2nd respondent was deemed unreliable.
Fact of the Case:
The appellants, plaintiffs in the suit, filed for partition and separate possession of 1/4th share each in the suit properties. The trial court dismissed the suit, and the appeal was also dismissed by the lower appellate court. The substantial questions of law in the Second Appeal were whether Ex.A-9 was a Receipt or Release Deed and whether a minor's suit for partition of the property purchased from ancestral nucleus could be dismissed on mere surmises and presumptions.
Finding of the Court:
The court found that the suit properties were the self-acquired properties of the 1st defendant and not joint family properties available for partition. The unstamped and unregistered document, Ex.A-9, was found inadmissible in evidence, and the plea that the suit properties were purchased out of the ancestral nucleus had not been proved by satisfactory evidence. The court also upheld the finding that the factum of marriage between the 1st appellant and the 1st respondent was not disputed, and the contention put forth by the 2nd respondent was deemed unreliable.
Issues: The issues were whether Ex.A-9 was a Receipt or Release Deed and whether a minor's suit for partition of the property purchased from ancestral nucleus could be dismissed on mere surmises and presumptions.
Ratio Decidendi: The court held that the unstamped and unregistered document, Ex.A-9, was inadmissible in evidence, and the plea that the suit properties were purchased out of the ancestral nucleus had not been proved by satisfactory evidence. The court also upheld the finding that the factum of marriage between the 1st appellant and the 1st respondent was not disputed, and the contention put forth by the 2nd respondent was deemed unreliable.
Final Decision: The Second Appeal failed, and the same was dismissed with no order as to costs.
The appellants are the plaintiffs in the suit who failed before both the courts below.
2. The 1st appellant/1st plaintiff is the mother of the appellants 2 to 4/minor plaintiffs 2 to 4 in the suit. The 1st respondent/1st defendant is the husband of the 1st appellant and father of the appellants 2 to 4. The 2nd respondent/2nd defendant is the purchaser of the suit property from the 1st respondent.
3. The appellants filed the suit for partition against the respondents and separate possession of 1/4th share each in the suit properties. The 1st respondent remained exparte and the 2nd respondent contested the suit. The learned District Munsif, having considered the evidence on record, both oral and documentary, adduced on either side and upon hearing the arguments of both sides, dismissed the suit. Aggrieved over the said judgment and decree passed by the trial court, the appellants preferred the appeal in A.S.No.88 of 1992 on the file of the Additional Subordinate Judge, Chengalpattu. The learned Subordinate Judge, having analysed the recorded evidence and after hearing both sides, dismissed the appeal by confirming the judgment and decree passed by the trial Court. Hence, the Second Appeal.
4. The averments in the plaint filed by the appellants/plaintiffs are briefly as follows:-
(a) The 1st defendant's father Kanna Pillai married one Chinnakulanthai as his first wife and the 1st defendant was born to the first wife. Subsequently, the said Kanna Pillai married one Saroja as his second wife and he had two sons and five daughters. The said Kanna Pillai was in possession and enjoyment of ancestral nanja and punja lands and a house at Siruthamur village. The 1st defendant demanded partition of his share in the family properties and since there had been dispute between Kanna Pillai and the 1st defendant, a panchayat was held and in the said panchayat, the 1st defendant released his right in the family properties and received Rs.10,000/- from his father Kanna Pillai as consideration.
(b) On 29.10.1977, the 1st defendant as kartha of the joint family consisting of himself and the plaintiffs purchased the suit properties from one Ranganathan Reddiar for a valuable consideration of Rs.7,000/-. The suit properties are punja lands measuring 5.70 acres. Since there had been misunderstanding between the 1st plaintiff and the 1st defendant, the husband is living separately and paying Rs.200/- per month to the wife by way of maintenance. The plaintiffs have also filed the petition in M.C. No.44 of 1985 on the file of the IV Metropolitan Magistrate, Saidapet for maintenance against the 1st defendant.
(c) Since the plaintiffs are living separately from 1980, the 1st defendant had entered into a sale agreement with the 2nd defendant in respect of the suit properties and also transferred the rights and title of the same through Court in favour of the 2nd defendant by virtue of decree in O.S.No.104 of 1981 on the file of the II Additional Subordinate Judge, Chengalpattu. However, the plaintiffs are not parties to the said agreement and therefore, the same is not binding on them. Since the suit properties are joint family properties, the plaintiffs are entitled to 1/4th share in the properties. The 2nd defendant is not a bona fide purchaser for value and hence, the suit.
5. The 1st respondent/1st defendant remained exparte in the suit.
6. The contentions of the 2nd respondent/2nd defendant in the written statement are briefly as follows:-
(a) It is false to say that the 1st defendant is the father and the plaintiffs 2 to 4 were born to him through his first wife. On the other hand, the 1st plaintiff was married to one Thulukkanam of Siruthamoor and while the said marriage was subsisting, she became the concubine of the 1st defendant. Hence, the plaintiffs 2 to 4 cannot claim any share in the suit properties, as the 1st plaintiff is not the legally wedded wife of the 1st defendant.
(b) The allegation that the suit properties were purchased out of Rs
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