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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M.Velumani, V.Sivagnanam, JJ.
Sudha - Appellant
Versus
S.Thangavel and ors. – Respondents
A.S.No.521 of 2016 and C.M.P.No.12451 of 2016
Decided On : 14-11-2022
Civil Procedure Code,1908 - Section 96 read with Order XLI Rule 1 - Limitation Act - Articles 59, 126 , 44 and 60 - Specific Relief Act, 1963 - Sections 31, 38, 38 (h) – Civil suit - Appeal - Suit for partition - Relief of permanent injunction - Mis-joinder and non-joinder - Whether first item of suit property is joint family property or separate property of 1st respondent - Whether second item of suit property was purchased by 1st respondent from and out of income derived from first item of suit property or from and out of earnings of 1st respondent - Held, It is case of appellant that said two children are illegitimate children and they do not have any share in suit properties - The 1st respondent has contended that Arukkani is lawful wedded wife and two children born in wedlock are legitimate children - It is not in dispute that 1st respondent and Arukkani are living together for a long period of time and is cohabitating resulting in two children born to them - The presumption is due to long cohabitation, 1st respondent and Arukkani lived as husband and wife - Appeal is dismissed.
Certainly. Based on the provided legal document, here are the key points:
Nature of the First Item of Property: The first item of the suit property is established as joint family property. This conclusion is supported by the fact that it was allotted to the 1st respondent in a partition deed, and the respondent himself treated it as joint family property and included other family members as vendors during its sale. Additionally, the respondent initially admitted to its joint family status in the pleadings, which was later withdrawn, but the Court found the earlier admission credible (!) (!) (!) (!) .
Ownership of the Second Item of Property: The second item of the suit property was purchased from and out of the income earned by the 1st respondent as a partner in a company and as a lorry driver. The Court found that the appellant failed to substantiate that the income from the first item was used for this purchase. The respondent provided credible evidence of his independent income, and the Court held that the second item is his self-acquired property (!) (!) (!) .
Limitation and Suit Validity: The suit was filed after the statutory period of limitation for challenging voidable transactions had expired, as the appellant did not initiate proceedings to set aside the sale deed within three years of attaining majority. The sale deed in question was found to be voidable, and the failure to seek its cancellation rendered the suit barred by limitation. Therefore, the suit was held to be not maintainable on this ground (!) (!) .
Non-joinder of Necessary Parties: The appellant did not implead the minor children of the 1st respondent through Arukkani, who are considered necessary parties in a suit for partition. Their absence meant that the Court could not finally determine the rights and shares in the property. The non-joinder was deemed a fatal flaw, leading to the dismissal of the suit (!) (!) (!) .
Legal Position on Sale Deeds by Guardians or Family Heads: Sale deeds executed by the father or guardian of minors, especially when done for family necessity and with proper representation, are generally binding unless challenged within the prescribed statutory period. If such a sale is voidable, it remains valid until legally annulled. The burden of proof lies on the party claiming the sale is invalid, and failure to challenge within the limitation period results in the sale being binding (!) (!) (!) .
Legitimacy of Children and Long Co-habitation: The Court presumes legitimacy of children born during long cohabitation, unless proven otherwise. The appellant's claim that the children are illegitimate was rejected based on the long-standing cohabitation of the 1st respondent and Arukkani (!) (!) .
Effect of Admission and Withdrawal of Admission: The respondent initially admitted that the property was joint family property but later withdrew this admission, claiming it was his separate property. The Court found that the initial admission was credible and that the later withdrawal did not alter the legal position, which supported the joint family property status (!) .
Overall Conclusion: The Court dismissed the appeal, affirming the lower court’s judgment, primarily on grounds of limitation, non-joinder of necessary parties, and the nature of the properties involved. The appellant’s claims of joint ownership and invalidity of the sale were not upheld due to procedural and substantive legal reasons (!) (!) .
Please let me know if you require further analysis or specific legal advice based on these points.
JUDGMENT :
V.M. VELUMANI, J.
Prayer: This First Appeal is filed under Section 96 read with Order XLI Rule 1 of the C.P.C., 1908, against the judgment and decree dated 08.06.2016 made in O.S.No.126 of 2008 on the file of the Principal District Court, Namakkal.
The appellant is the plaintiff and respondents are defendants in O.S.No.126 of 2008 on the file of the Principal District Court, Namakkal. The appellant filed the said suit for partition of the suit properties into two equal shares and to allot one such share to the appellant and put her in separate possession and enjoyment of the same and also for the relief of permanent injunction retraining the respondents not to alienate the suit properties till the final division takes place. After contest by the judgment and decree dated 08.06.2016, the said suit was dismissed.
2. The unsuccessful plaintiff has come out with the present appeal challenging the judgment and decree dated 08.06.2016 made in O.S.No.126 of 2008 on the file of the Principal District Court, Namakkal.
Case of the appellant:
3. The appellant is the daughter of the 1st respondent. The suit properties are ancestral and joint family properties of the appellant and 1st respondent. The appellant is having half share in both the properties. The first item of the suit property was allotted to the 1st respondent in the partition effected between the 1st respondent, his brother and father evidenced by the deed of partition dated 15.06.1972 registered as Document No.1064/1972 on the file of Sub Registrar, Paramathi. From and out of income of the first item of the suit property, the 1st respondent purchased the second item of the suit property by the deed of sale dated 18.09.1996 bearing Document No.409/1996. The appellant is entitled to half share in the said first item of the suit property and her right over the first item of the suit property will not get extinguished by fraudulent sale in favour of the 2nd respondent.
3(i). The 1st respondent had illicit relationship with one Arukkani and in the said illicit relationship, one Gomathi and Boopathi were born. They do not have any share in the suit properties. The 1st respondent fraudulently sold first item of the suit property to the 2nd respondent as Manager of the Hindu Mittakshara Co-parcenary, by sale deed dated 20.09.2002 bearing Document No.466/2002 for himself and on behalf of the appellant, Gomathi and Boopathy. The appellant came to know about the sale only on 13.03.2008. The said sale is not binding on the appellant and not for the benefit of the appellant. The said sale is void abinitio, which is clear as the said Gomathi and Boopathy made as parties to the said sale deed.
3(ii). The appellant is in joint possession of the suit properties and no alienation possible for she is in joint possession with first respondent. Hence, the appellant repeatedly demanded division of the property. The 1st respondent did not partition the property. The appellant issued notice dated 27.06.2008 calling upon to divide the suit properties into two equal shares and allot one share to the appellant. The 1st respondent did not partition and did not send any reply to the said notice. The respondents are making arrangements to sell the suit properties. Hence, the appellant filed suit for partition and for injunction restraining the respondents not to alienate the suit properties till the final division takes place.
Case of the 1st respondent:
4. The 1st respondent filed written statement and denied all the allegations made in the plaint. According to the 1st respondent, one Saraswathi, wife of the 1st respondent and mother of the appellant deserted the 1st respondent after the birth of the appellant in the year 1986, left the appellant and 1st respondent and married one person residing in Veerapudhur Village, near Manapparai.
4(i). As per the customs, the 1st respondent married one Arukkani as in the Panchayat, wherein it was held that Saraswathi, mother of the appellant, wife of the 1st res
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The main legal point established in the judgment is the binding nature of a sale deed executed by the family manager, the entitlement of daughters to ancestral property under the Amended Hindu Succes....
The burden of proof lies on the person claiming property as self-acquired to establish that it was acquired without the aid of joint family funds.
In joint family property disputes, a guardian may transact on behalf of minors without court sanction, provided sales serve family interests.
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