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2008 Supreme(Mad) 3057
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Thambi alias Giri & Another
Versus
V.M. Duraisamy & Others
A.S.No.971 of 1992
Decided on : 25-08-2008
For the Appellants:K.M. Santhanagopalan, Advocate.
For the Respondents:R1, R2, R5, R6 and R9, V. Manohar, Advocate.
Headnote:
Suit for partition and cancellation of sale deeds emerged for legal necessity and for the welfare of the joint family including the then minors. Whether the properties sold under Exs.A2 and A3, the sale deeds emerged for legal necessity and for the welfare of the joint family including the then minors?
Fact of the Case:
The deceased Sundara Gounder during his life time, obtained "A" and "B" scheduled properties allotted in his favour in the partition, which emerged between his co-sharers and himself on 012. 1965. The plaintiffs 1 and 2 are the sons of the said Sundara Gounder and obviously Sundara Gounder and the plaintiffs constituted a Hindu Joint Family and the said properties happened to be the joint family properties. Sundara Gounder was addicted to intoxicating drinks and he lead an immoral life. He incurred debts for his immoral and illegal purposes without caring for the family welfare. Taking undue advantage of Sundara Gounder immoral habits, fictitious pro-notes were got executed from him by some persons and some of them also managed to obtain decrees as against Sundara Gounder based on such false promissory notes. Since those debts were incurred by Sundara Gounder only to meet his immoral purposes and not for family necessity, those debts would not bind the plaintiffs. Only the debts incurred by Palani Gounder, the grand father of the plaintiffs, would be binding on the plaintiffs. The said Sundara Gounder and his mother Janaki Ammal who was given life estate in a portion of the said Joint family properties executed the sale deed in favour of defendants 1 and 2, in respect of "A" Scheduled property. The first plaintiff was a minor at the time of such execution of the sale deed but he was cited therein as a eo-nomine party and the second plaintiff was in the womb of his mother Rajammal. There had been no necessity at all for executing such a sale deed in respect of the "A" scheduled properties of the plaint and the sale proceeds were not utilised for the benefit of the Joint family. The said Sundara Gounder executed another sale deed in respect of the "B" scheduled house property on 20.10.1975 in favour of D3, wherein both the plaintiffs have been cited as eo- nomine parties and that sale was effected not for any family necessity or for the benefit of the plaintiffs and the sale proceeds were not utilised for the welfare of the minors or for the joint family. Sundara Gounder and the plaintiffs 1 and 2 had 1/3rd share each in the suit properties.
Finding of the Court:
The suit is a vexatious suit filed by the plaintiffs with the help of Rajammal, so as to get back, by hook or by crook, the alleged 2/3 rd share of the plaintiffs from the defendants. The suit is totally untenable. The defendants 2 and 3 had discharged their burden of proof as alienees of the properties, the burden of proof got shifted to the plaintiffs that such sales were effected for illegal purpose or avyavakarika purpose. But they, have not done so. The burden of proof is not static, but is ambulatory in nature. Once, they discharged their burden, it is the bounden duty of the plaintiffs to establish that those debts were incurred for immoral purpose. Absolutely, there is no plausible evidence much less convincing evidence to exemplify that those debts were incurred by Sundaram for illegal purposes. The evidence of DW2 Krishna Gounder, DW3, DW4 Muthu Gounder, DW7 Murugasamy Gounder, who attested Ex.B17 was also to the effect that Sundara Gounder sold the land for his legal necessities and not for any illegal purposes. The evidence of PW1 (P1) and PW2 are quite antithetical to the evidence discussed supra and they miserably failed to substantiate their allegations and as held supra, they were incompetent to speak about even the very bald averments in the plaint relating to the alleged past immoral conduct of Sundaram and about the purpose of the debts incurred by him earlier to Ex.A2. Out of the 12 debts found set out in Ex.A2, most of the debts were proved as spotlighted and highlighted above, meticulously even as per the high standard of proof expected by the plaintiffs and in such a case such evidence cannot be labelled as patchy evidence or insufficient evidence.
Issues: 1. Whether the properties sold under Exs.A2 and A3, the sale deeds emerged for legal necessity and for the welfare of the joint family including the then minors? 2. Whether the alienees of the suit properties, viz., the defendants discharged their burden in proving that such sales were effected in their favour purely for the legal necessity and on the joint family and also the welfare of the then minors in the co-parcenery? 3. Whether the debts contemplated in Ex.A2 and Ex.A3 were incurred for any immoral or illegal purpose of Sundara Gounder? 4.Whether there is any infirmity in the judgment and decree of the trial Court?
Ratio Decidendi: 1. The burden of proof is not static, but is ambulatory in nature. Once, the alienees discharged their burden, it is the bounden duty of the plaintiffs to establish that those debts were incurred for immoral purpose. 2. Absolutely, there is no plausible evidence much less convincing evidence to exemplify that those debts were incurred by Sundaram for illegal purposes. 3. The evidence of DW2 Krishna Gounder, DW3, DW4 Muthu Gounder, DW7 Murugasamy Gounder, who attested Ex.B17 was also to the effect that Sundara Gounder sold the land for his legal necessities and not for any illegal purposes. 4. The evidence of PW1 (P1) and PW2 are quite antithetical to the evidence discussed supra and they miserably failed to substantiate their allegations and as held supra, they were incompetent to speak about even the very bald averments in the plaint relating to the alleged past immoral conduct of Sundaram and about the purpose of the debts incurred by him earlier to Ex.A2. 5. Out of the 12 debts found set out in Ex.A2, most of the debts were proved as spotlighted and highlighted above, meticulously even as per the high standard of proof expected by the plaintiffs and in such a case such evidence cannot be labelled as patchy evidence or insufficient evidence.
Final Decision: The suit is dismissed. However, there shall be no order as to costs.
Animadverting upon the dismissal of the suit for partition and for cancellation of sale deeds vide judgment dated 12. 1991 passed by the learned Principal Subordinate Judge, Coimbatore, this appeal is focussed. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the amended plaint could be portrayed thus:
The deceased Sundara Gounder during his life time, obtained "A" and "B" scheduled properties allotted in his favour in the partition, which emerged between his co-sharers and himself on 012. 1965. The plaintiffs 1 and 2 are the sons of the said Sundara Gounder and obviously Sundara Gounder and the plaintiffs constituted a Hindu Joint Family and the said properties happened to be the joint family properties. Sundara Gounder was addicted to intoxicating drinks and he lead an immoral life. He incurred debts for his immoral and illegal purposes without caring for the family welfare. Taking undue advantage of Sundara Gounder immoral habits, fictitious pro-notes were got executed from him by some persons and some of them also managed to obtain decrees as against Sundara Gounder based on such false promissory notes. Since those debts were incurred by Sundara Gounder only to meet his immoral purposes and not for family necessity, those debts would not bind the plaintiffs. Only the debts incurred by Palani Gounder, the grand father of the plaintiffs, would be binding on the plaintiffs. The said Sundara Gounder and his mother Janaki Ammal who was given life estate in a portion of the said Joint family properties executed the sale deed in favour of defendants 1 and 2, in respect of "A" Scheduled property. The first plaintiff was a minor at the time of such execution of the sale deed but he was cited therein as a eo-nomine party and the second plaintiff was in the womb of his mother Rajammal. There had been no necessity at all for executing such a sale deed in respect of the "A" scheduled properties of the plaint and the sale proceeds were not utilised for the benefit of the Joint family. The said Sundara Gounder executed another sale deed in respect of the "B" scheduled house property on 20.10.1975 in favour of D3, wherein both the plaintiffs have been cited as eo- nomine parties and that sale was effected not for any family necessity or for the benefit of the plaintiffs and the sale proceeds were not utilised for the welfare of the minors or for the joint family. Sundara Gounder and the plaintiffs 1 and 2 had 1/3rd share each in the suit properties. Consequently, the plaintiffs issued their lawyers notices to the defendants, which evoked replies from them with false allegations. The "A" scheduled property was capable of fetching an income of Rs.20,000/- per annum. Accordingly, the plaintiffs prayed for partition and for allotment of 2/3 rd share in their favour in the suit properties after cancellation of the sale deeds.
3. Per contra, denying and refuting, gainsaying and impugning, the allegations/averments in the plaint, the defendants 1 and 2 filed the written statement, the pith and marrow of it, would run thus:
The deceased Sundara Gounder was not addicted to intoxicating liquor and he did not lead an immoral life. For discharging the legitimate debts incurred by him for the welfare of the family and also for discharging his father Palanisamy Gounders debt, the "A" schedule property was sold in favour of D1 and D2. In fact, Sundara Gounder, incurred debs by borrowing money from Co-operative Agricultural Credit Society, Varadayampalayam and from other persons for meeting the family necessities. One Ramasamy Gounder filed the suit O.S.No.1874 of 1969 before the District Munsif Court, Coimbatore and obtained a decree as against Sundara Gounder. It was D1, who discharged the said debt. One Unnammal also obtained a decree in O.S.No.1814/69 before the Distri
