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2016 Supreme(Mad) 3261
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A. SELVAM and P. KALAIYARASAN, JJ.
S. Munuswamy and Ors. - Appellants
Vs.
M. Rajendran - Respondent
Appeal Suit No. 503 of 2016 & CMP Nos.11473 of 2016 & 14067 of 2016
Decided On : 20-10-2016
For the Appellants : Mr. V. Manisekaran
For the Respondent: Mr. R. Venkatesan
Headnote:
Appeal suit – Suit for partition and separate possession of their 3/4 share - Hindu joint family - Benefit of - Appellants herein, as plaintiffs, have instituted O.S. on file of trial court for reliefs of partition and separate possession of their 3/4 share in suit property and for permanent injunction, wherein present respondent has been shown as sole defendant - Material averments made in plaint are that first plaintiff is father of plaintiffs 2 and 3 and defendant - plaintiffs and defendant are joint family members and for benefit of joint family, suit property has been purchased in name of defendant, by virtue of Sale Deed and since then, plaintiffs are in possession and enjoyment of same - Whether suit property is a joint family property or separate property of defendant - Held, It is an admitted fact that the defendant is an employee of Indian Railway - Since defendant is an employee of Indian Railway and since he obtained loan from State Bank of India by virtue of Ex.B.2, this Court view that defendant has had independent source to purchase suit property in his name - It is a settled principle of law that even a junior member of a Hindu joint family can acquire property in his name by using separate funds without using joint family funds - Even though plaintiffs and defendant are joint family members, no acceptable/trustworthy reason has been given on side of plaintiffs as to why suit property has been purchased in name of defendant - Further, as stated earlier, defendant has shown his independent source for purpose of purchasing suit property - Court view that suit property is an absolute property of defendant - Suit property is nothing but a joint family property - There is no evidence for purpose of coming to a conclusion that suit property is a joint family property, it is needless to say that plaintiffs are not having right of partition - Appeal suit dismissed.
A. SELVAM, J.
This appeal suit is directed against the judgment and decree dated 26.2.2016, passed in O.S.No.4897 of 2012, by XVI Additional City Civil Court, Chennai.
2. The appellants herein, as plaintiffs, have instituted O.S.No.4897 of 2012 on the file of the trial court for the reliefs of partition and separate possession of their 3/4 share in the suit property and for permanent injunction, wherein the present respondent has been shown as sole defendant.
3. The material averments made in the plaint are that the first plaintiff is the father of the plaintiffs 2 and 3 and defendant. The plaintiffs and defendant are joint family members and for the benefit of joint family, the suit property has been purchased in the name of the defendant, by virtue of the Sale Deed dated 18.8.2004 and since then, the plaintiffs are in possession and enjoyment of the same. The defendant is not having exclusive right, title and interest over the suit property. Now the defendant has been acting against the interest of the plaintiffs. Further, the defendant has refused to have amicable partition. Under the said circumstances, the present suit has been instituted for the reliefs sought therein.
4. The material averments made in the written statement filed by the defendant may be stated like thus:
The relationship mentioned in the plaint between the parties is correct. It is false to aver that the suit property has been purchased for the benefit of Hindu joint family in the name of the defendant. The defendant is an employee of Indian Railway and by way of getting loan from State Bank of India, he purchased the suit property by virtue of Sale Deed dated 18.8.2004 and before execution of sale deed, an agreement of sale has come into existence on 12.7.2004. Therefore, the suit property is the absolute property of the defendant and in which the plaintiffs are not having any partible interest. Under the said circumstances, the present suit deserves to be dismissed.
5. On the basis of rival pleadings raised on either side, the trial court has framed necessary issues and after analyzing both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial court, the present appeal suit has been preferred at the instance of the plaintiffs as appellants.
6. The consistent case put forth on the side of the plaintiffs is that the plaintiffs and defendant are nothing but the joint family members and the first plaintiff being the father of the remaining plaintiffs and defendant, has acted as Manager of Hindu joint family. For the benefit of Hindu joint family, the suit property has been purchased by virtue of Sale Deed dated 18.8.2004 in the name of the defendant. Now the defendant has been acting against the interest of the plaintiffs and also refused to concede the demand of partition made by the plaintiffs. Under the said circumstances, the present suit has been instituted for the reliefs sought therein.
7. The main defence put forth on the side of the defendant is that the defendant has been doing service in Indian Railway and prior to purchase, an agreement of sale has come into existence on 12.7.2004 and the defendant has obtained loan from State Bank of India so as to purchase the suit property and subsequently he purchased the same on 18.8.2004 and therefore, the suit property is the separate property of the defendant and in which, the plaintiffs are not having any semblance of right and therefore, the present suit deserves to be dismissed.
8. As adverted to earlier, the trial court, after considering the overall evidence available on record, has dismissed the suit.
9. The only point that comes up for consideration in the present appeal suit is as to whether the suit property is a joint family property or separate property of the defendant?
10. The learned counsel appearing for the appellants/plaintiffs has strenuously contended that the defendant being an employee of Indian Railway, the suit property has b
