This Appeal has been filed by the defendants 1,4,6,7 and 8 in the suit in O.S.No.477 of 2004 on the file of the Additional District and Sessions Court (Fast Track Court No.III), Madurai.
2.The first respondent in this appeal, as plaintiff, filed a suit in O.S.No.477 of 2004 for partition and separate possession of 19/32 share in the suit property and for consequential relief.
3.The case of the plaintiff is that the suit property is the ancestral property of one Sundaram Iyer and his three sons, namely, the defendants 2, 3 and 4. It is also the case of the plaintiff that the said Sundaram Iyer and his three sons constitute a Hindu joint family. According to the plaintiff, after the death of Sundaram Iyer, his three sons will be entitled to 9/32 share each and his daughters and wife are entitled to 1/32 share each. The plaintiff contended that he purchased 19/32 share from defendants 2, 3 and 5 under three separate documents, namely, Exs.A2, A3 and A1 respectively. As a purchaser from the co-parceners, the plaintiff claimed that he is entitled to partition and separate possession of his 19/32 share.
4.The suit was contested by the first defendant by filing an independent written statement which was also adopted by other appellants. Though the defendants have denied the averments in the plaint para-wise, they have not stated specifically their case about the character of the suit property whether it is self-acquired or joint family. One of the contentions is that the second defendant is a person of unsound mind and that he is incompetent and unable to understand or act to convey valid title in respect of his share in the property. Hence, it was specifically pleaded by the appellants that the sale deed executed by the second defendant is invalid and that the same will not confer any title to the plaintiff.
5.The plaintiff also filed a reply statement to the written statement filed on behalf of the first defendant. Based on the pleadings of the respective parties, the trial Court framed necessary issues. It is pertinent to point out that the issue regarding the character of the suit property whether it is a joint family property or self-acquired property was not even framed. Since the character of property was not specifically denied, as required under Order VIII, Rule 5 C.P.C., the trial Court did not consider it necessary to frame an issue.
6.On the insanity of the second defendant, the trial Court has given a specific finding that the contention of defendants about the insanity of second defendant is not proved and that the second defendant is competent to execute the sale deed in favour of the plaintiff. The other main issue is whether the suit property is the self-acquired property of Kasturi Rangan Iyer, father of Sundaram Iyer. Based on the pleadings, the issue framed was whether the plaintiff is entitled to partition of his 19/32 share in the suit property and to what relief the plaintiff is entitled to.
7.Since the trial Court found that in the course of evidence, the first defendant himself has admitted that Sundaram Iyer and his sons were living together as members of joint family after the death of Kasturi Rangan Iyer, the trial Court proceeded to accept the case of the plaintiff that the suit property is a joint family property of Sundaram Iyer and his children.
8.The following genealogy is relevant and is extracted as under: Sundaram Iyer
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Nagarajan Rengarajan Srinivasan Meenakshi Geetha Vatsala D2 D3 D4 D6 D7 D8
9.On the basis of the oral and documentary evidence, the trial Court has ultimately found that the suit property is the ancestral property of defendants and that the sons of Sundaram Iyer, namely, defendants 2, 3 and 5 are entitled to each 19/32 share and 5th defendant is entitled to 1/32 share. Since the plaintiff has acquired the right by purchasing their undivided share, the trial Court also held that the plaintiff is entitled to 19/32 share in the suit property so as to sustain his claim for partition. Aggrieved by the judgment and decree of the trial Court, the defendants 1, 4, 6, 7 and 8 have preferred the above appeal.
10.Mr.R.Janakiramulu, learned Counsel for the appellants has made the following submissions:
10.1.The parties in the suit have agreed that the suit property is one of the items that was allotted to the father of Sundaram Iyer by name Kasturi Rangan Iyer in a partition that was entered into between Kasturi Rangan Iyer and his brothers. This document is marked as Ex.B9 and it is of the year 1884. Since this document gives an indication that the properties which are the subject matter of the partition are stated to be both joint family and self-acquired property of one Samy Iyer, one of the brothers of Kasturi Rangan Iyer, the suit property has to be considered as the separate property of Kasturi Rangan Iyer.
10.2.The plaintiff has failed to prove that the suit property is a joint family property of Sundaram Iyer and his sons. There is no presumption in Hindu Law that the property is joint mainly because the parties are members of a joint family. The second defendant is a person of unsound mind and that the sale deed obtained from him will not confer any right. Though this was raised as a serious issue before the trial Court, the trial Court has not considered the evidence in this aspect.
11.As against the contention of the learned Counsel for the appellants, Mr.S.R.Rajagopal, learned Counsel appearing for the first respondent referred to the pleadings and admission of D.W.1. Since D.W.1 has categorically and unequivocally admitted that the suit property was in the enjoyment of father and sons as the joint family property of Sundaram Iyer and his three sons, the same should be taken as a judicial admission. In the absence of any explanation from the appellants, the contention that the suit property is a self-acquired property of Sundaram Iyer, cannot be accepted. The learned counsel for the respondents also submitted that the defendants in their written statement have not specifically denied the character of the suit property as a joint family property and the specific case of the plaintiff regarding the entitlement of shares by the defendants.
12.I have considered the submissions of the learned counsel appearing for both sides, having regard to the admitted facts and the evidence in this case.
13.As it is submitted by the learned Counsel for the respondents in this case, as against the specific plea of plaintiff in the plaint regarding the character of the suit schedule property and the entitlement of all the legal heirs of Sundaram Iyer, there is no specific denial in the written statement by pleading that the suit property is the self-acquired property of Sundaram Iyer. Though the allegations in the plaint are generally denied, the denial appears to be mechanical without a specific denial regarding the specific plea in the plaint about the character of suit property as joint family property. The learned Counsel for the appellants has pointed out that D.W.1 has categorically admitted during his cross examination as follows:
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14.This admission of D.W.1 is sufficient to hold that the suit property is a joint family property of Sundaram Iyer and his sons. With regard to the contention of the appellants that the second defendant is a person of unsound mind, this Court does not find any merit having regard to the specific finding of the trial Court which is not demonstrated to be wrong or erroneous. That apart, the appellants are not claiming under the second defendant. The second defendant is a party to the proceedings. In such circumstances, it is not open to the appellants to non-suit the plaintiff only on the ground that one of the vendors who have also executed the sale deed is a person of unsound mind without proof. The other reasons assigned by the learned Additional District Judge are supported by reasons and I find no legal infirmity in the judgment of the trial Court. Hence, the judgment of the trial Court is confirmed.
15.However, the learned counsel for the appellants pointed out that the decree in the present suit is drafted in such a way that the plaintiff should be allotted the portion in which the plaintiff is in possession. The decree in the suit has been drafted as per the prayer in the plaint. The plaintiff's right to get 19/32 share in the suit property alone should be declared by the trial Court. The actual division by metes and bounds can be done at the time of final decree proceedings having regard to the other features and after hearing all the parties as regards the mode of enjoyment / division. Hence, clause 1 of the decree is set aside. However, the following decree shall be substituted:
(1) that the defendants be and hereby directed to divide the suit property into 32 shares by metes and bounds and to allot 19 shares to the plaintiff and put him in separate possession.
16.It is open to the first respondent to file separate application for passing of final decree in respect of the preliminary decree that is now modified in the manner stated above.
17.The appeal is dismissed, however, subject to the modification of clause 1 in the decree in O.S.No.477 of 2004 on the file of Additional District and Sessions Judge, dated 04.04.2005 in the above terms. However, there is no order as to costs.
To
1.The Additional District and Sessions Judge, Fast Track Court No.III, Madurai.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai..