IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.08.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI
Appeal Suit No.888 of 2003
S.M.Sivaswami ... Appellant
vs.
1. Nagammal
2. Kasthuri
3. Kavitha
4. Muthusamy Gounder
5. Jayamani
6. Saraswathi ... Respondents
Prayer: Appeal filed under Section 96 of C.P.C. against the Decree and Judgment dated 22.1.2003 in O.S.No.8 of 2002 on the file of Additional District Court [Fast Track Court No.II], Gobichettipalayam.
For Appellant : Mr.S.Doaraisami, Senior Counsel
for Ms.Muthumani Doraisami
For Respondents : Mr.N.Damodaran for R1 to R3
No Appearance R4
R5 and R6 Given up
JUDGMENT
R.BANUMATHI,J
This Appeal arises out of the Decree and Judgment in O.S.No.8 of 2002 dated 22.1.2003 decreeing Plaintiffs suit for partition in respect of plaint 'C' schedule [item No.3] and passing preliminary decree for partition of 2nd and 3rd Plaintiffs' 1/3rd share each. Unsuccessful 4th Defendant is the Appellant.
2. 1st Defendant-Muthusamy Gounder is the husband of 1st Plaintiff-Nagammal. Plaintiffs 2 and 3 [Kasthuri & Kavitha] are the daughters of 1st Plaintiff and 1st Defendant. Suit property relates to three items of properties. Briefly stated plaint averments are that 1st Defendant owned 4 acres of ancestral property at Sungakkaranpalayam village which was sold in the year 1974 and from out of the sale proceeds of the said 4 acres, the suit properties and other properties were purchased in the name of 1st Defendant as he was Karta of the family. Subsequently, Plaintiffs and 1st Defendant were in enjoyment of the suit properties as their joint family properties and they had been in the suit properties since 1975. From out of the income of joint family properties, Plaintiffs and 1st Defendant jointly purchased item No.3 of suit property under sale deed dated 29.11.1973. Item No.3 was purchased in the name of 1st Defendant and patta was also issued in his name as he was the Karta of joint family. 1st Defendant never enjoyed the suit properties and other properties as his separate properties. Even though kist was paid in the name of 1st Defendant, the suit properties are the joint family properties of Plaintiffs and 1st Defendant. 1st Plaintiff and 1st Defendant executed Panchayat Muchalika [Ex.A1] on 04.11.1987 treating the suit properties as joint family properties.
3. Further case of Plaintiffs is that 1st Plaintiff and 1st Defendant jointly conducted the marriage of 2nd Plaintiff-Kasthuri and husband of 2nd Plaintiff [Muthusamy] was known to the family since 1975. Even after the marriage, Plaintiffs 2 and 3 have been participating in the agricultural operations along with their parents and Plaintiffs are entitled to 3/4th share and the 1st Defendant is entitled to 1/4th share in the suit properties. After the marriage of 2nd Plaintiff, 1st Defendant started acting on his own without consulting the Plaintiffs. On 15.12.2000 misunderstanding arose between the 1st Plaintiff and 1st Defendant and since then Plaintiffs 1 to 3 have been separately residing at Nehru Nagar and 1st Defendant at Salai house in item No.1. Further case of Plaintiffs is that one Ponnappan, former village Munsif of Shenbagapudur came to the Plaintiffs house and informed them about the sale deeds fraudulently obtained by Defendants 2 to 4 from 1st Defendant by cheating him. Immediately, Plaintiffs approached their Advocate at Gobichettipalayam and only on 02.1.2001, they came to know about the filing of suit O.S.No.194/1992 by the 2nd Defendant for Specific Performance and the consequent Appeals in A.S.No.229/1997 and S.A.No.1542/2000. On 03.1.2001, Plaintiffs demanded the 1st Defendant to divide the suit properties, but 1st Defendant did not respond. According to Plaintiffs, the sale deeds executed by the 1st Defendant are not binding upon the Plaintiffs. Since Plaintiffs are not parties in O.S.No.194/1992 and the consequential Appeals in A.S.No.229/1997 and S.A.No.1542/2000, the Judgment thereon are not binding upon the Plaintiffs. Stating that 1st Defendant is entitled to 1/4th share in the suit properties, Plaintiffs have filed the suit for partition claiming their 3/4th share in the suit properties.
4. Denying the plaint allegations, Defendants 2 and 4 have filed written statement contending that Plaintiffs 1 and 3 and 1st Defendant were living together at Sevurkarar Thottam at Nehru Nagar and the suit properties were sold by the 1st Defendant with the knowledge and consent of Plaintiffs. According to Defendants 2 and 4, 1st Defendant owned total extent of 1.87 acres of land in item No.3 S.F.No.74. Under Ex.B4-sale deed [11.9.1985], 1st Defendant sold eastern one acre in S.F.No.74 to one K.K.Shanmugam. Under Ex.B5-sale deed dated 11.09.1985, 1st Defendant sold western 0.87 cents to one Santhamani, wife of the said Shanmugam. Subsequently, the said Shanmugam sold item No.3 of the suit property to 4th Defendant-Sivasami under Ex.B6-sale deed [15.11.1988] for valid consideration. Item No.3 of the suit property is a portion of one acre purchased by the said Shanmugam on 11.9.1985 [Ex.B4] and since then 4th Defendant is in possession and enjoyment of item No.3 as absolute owner. 4th Defendant had also constructed terraced house in eastern portion of item No.3 in 1995 itself and is living there. Further case of Defendants 2 and 4 is that the said Santhamani and Shanmugam who are husband and wife have sold the remaining land in S.F.No.74 as house sites to various persons through their power agent viz., 4th Defendant-Sivasami. 1st Defendant had filed O.S.No.38/1990 on the file of District Munsif Court, Sathyamangalam with regard to item No.3 of suit property against 4th Defendant and the said Shanmugam and the said suit was dismissed on merits on 25.3.1991. Subsequently, at the instigation of 1st Defendant, 1st Plaintiff filed O.S.No.74/1992 on the file of District Munsif Court, Sathyamangalam against the Defendants 2 and 4 and 1st Defendant with regard to item No.1 of the suit property and the said suit was also dismissed on merits on 08.06.1997. It is further averred that Plaintiffs have purposely suppressed the earlier suits and filed the present suit at the instigation of 1st Defendant. 3rd Defendant is said to have sold item No.2 of the suit property to third person who is in possession of the same. Defendants 2 and 4 further averred that after selling the suit properties to Shanmugam and Santhamani, 1st Defendant has purchased the lands in Ariyappampalayam village out of the sale proceeds and he along with the Plaintiffs have been living in the said land. Stating that Plaintiffs have no cause of action to file the suit and the suit has been filed at the instigation of 1st Defendant, Defendants 2 and 4 prayed for dismissal of the suit.
5. On the above pleadings, three issues and three additional issues were framed. 3rd Plaintiff-Kavitha examined herself as PW1. One Arunachalam, who is elder brother of 1st Defendant was examined as PW2. Exs.A1 to A11 were marked on the side of Plaintiffs. 4th Defendant-Sivasami examined himself as DW1. Exs.B1 to B7 were marked on the side of Defendants.
6. Upon consideration of oral and documentary evidence, trial Court held that Plaintiffs are not entitled to any share in item Nos.1 and 2 of suit properties. In so far as item No.3, trial Court held that it was purchased from out of the sale proceeds of the ancestral property and held that item No.3 is the joint family property. Trial Court further held that Plaintiffs 2 and 3 are each entitled to 1/3rd share in item No.3 of the suit property and passed preliminary decree for partition of 2/3rd share infavour of Plaintiffs 2 and 3.
7. Mr.Doraisamy, learned Senior Counsel for Appellant submitted that Court below erred in saying that the sale proceeds of Ex.A7 was utilised for purchase of property in Rangasamudram village and that Plaintiffs have not produced any evidence to show that 'C' schedule [item No.3] was purchased by selling the ancestral properties. Learned Senior Counsel would further submit that Plaintiffs were living together with 1st Defendant and they had knowledge of the sale infavour of Shanmugam and Santhamani [Exs.B4 & B5] and trial Court did not properly analyse falsity in Plaintiffs' case that they came to know the sale transactions on 02.01.2001. It was further submitted that the suit was filed by the Plaintiffs at the instigation of 1st Defendant and 1st Defendant wantonly remained exparte and the same was not properly appreciated by the trial Court. It was further submitted that as per the recitals in Exs.B4 and B5, out of the sale proceeds thereon, actually 1st Defendant purchased the property in Ariyappampalayam under Ex.A8-sale deed [13.09.1985] and the said property, even though available for partition, has not been included in the suit for partition.
8. We have heard Mr.Shivakumar, learned counsel appearing for Respondents 1 to 3. Drawing our attention to various proceedings, learned counsel for Respondents 1 to 3 submitted that as and when Plaintiffs came to know about the transactions, Plaintiffs have filed the suit. It was further submitted that there is ample evidence to show that suit property item No.3 was purchased from out of the joint family proceeds and the property is ancestral property and 1st Defendant had no reason for alienating the property and trial Court rightly decreed Plaintiffs' suit for partition.
9. Upon consideration of oral and documentary evidence and Judgment of the trial Court and also the materials on record, the following points arise for consideration in this Appeal:-
(1) Whether the Plaintiffs have proved that item No.3 was purchased from selling the ancestral and joint family properties?
(2) Whether trial Court was right in holding that Plaintiffs not being parties to the sale deeds, Exs.B4 and B5-sale deeds are not binding upon them?
(3) Whether the contention of Defendants that suit has been filed at the instigation of 1st Defendant is strengthened by cogent evidence?
(4) Whether the decree and judgment of the trial Court is sustainable?
10. Point Nos.1 to 4:- Suit properties relates to three items viz., (i) Item No.1 ['A' schedule], S.F.No.75 measuring an extent of 0.35 cents; (ii) Item No.2 ['B' schedule], S.F.No.75 measuring an extent of 1009 sq. ft.; and (iii) Item No.3 ['C' schedule], S.F.No.74 measuring an extent of 0.60= cents. Suit was decreed infavour of Plaintiffs 2 and 3 against the 4th Defendant only in respect of item No.3 [S.F.No.74 0. 60= cents]. Case of Plaintiffs is that 1st Defendant owned 4 acres of ancestral property at Sungakkaranpalaym village and the said property was sold and from out of the sale proceeds, suit 'C' schedule property [item No.3] was purchased by the 1st Defendant as Karta of joint family.
11. All savings made out of ancestral property, and all purchases or profits made from the income or sale of ancestral property, would form part of the ancestral or coparcenary property. The burden of proving that a certain acquisition was made from out of sale proceeds is upon the person who alleges. This has to be done by establishing a nexus between the acquisition in question and the ancestral income/sale proceeds of ancestral property. When the Karta of Hindu joint family sold the ancestral property and thereafter he purchased the property in dispute, once nexus is established the property purchased would assume the character of Joint Hindu Family property.
12. Case of Plaintiffs is that ancestral property of 4 acres in Sungakkaranpalayam village was sold for Rs.50,000/- and from out of the sale proceeds, item No.3 was purchased by the 1st Defendant. In her evidence, 3rd Plaintiff [PW1] has stated as under:-
@//// eh';fs; Kd;g[ R';ffhughisaj;jpy; ,Ue;njhk;/ m';F njhl;lk;. tPL g{kp ,Ue;jJ/ mtw;iw tpw;Wtpl;nlhk/ mjid 1971y; tpw;Wtpl;nlhk;/ mtw;iw U:/50.000-?f;F tpw;nwhk;/ fpuag;gj;jpuj;jpy; U:/6000-? vd;W nghl;L vGjg;gl;Ls;sJ/ tpw;w gzj;ij itj;J jhth brhj;ij th';fpndhk;/ 1.2 mapl;l brhj;ij 72y; th';fpndhk;/ 2k; mapl;lr; brhj;J 1009 rJumo ,lkhFk;/ mjd; fhiy vz;/74 MFk;/ 3k; mapl;lr;brhj;J 0. 60= brz;l MFk;/ mjpy; fpzW. kpd;rhu nkhl;lhh;. gk;g[brl;. kpd; ,izg;g[ cs;sJ/ kpd; ,izg;g[ vz;/186. 3k; mapl;lr;brhj;J 84y; th';fg;gl;lJ/ U:/42.000-?f;F mJ th';fg;gl;lJ/ ///@
13. In her evidence, PW1 has stated that the property in Sungakkaranpalayam village was sold for Rs.50,000/-. PW2-Arunachalam, elder brother of 1st Defendant had also deposed that property in Sungakkaranpalayam village was sold for Rs.50,000/-. Oral evidence of PWs.1 and 2 that property in Sungakkaranpalayam was sold for Rs.50,000/- is not in consonance with Ex.A7-sale deed, [07.4.1971]. In Ex.A7-sale deed property in S.F.No.146 0.73-1/3 acres; S.F.No.147 1.30-2/3 acres; 1/3rd share in the Well; S.No.149 1.05-2/3 acre were sold by 1st Defendant for Rs.4000/- [value of the property stated as Rs.6000/-]. When the terms of contract, grants or other disposition of property are reduced into writing and registered, no oral evidence shall be admitted in contradict, vary, add to, or subtract from its nature. Where the terms of Ex.A7-sale deed and consideration stated thereon are very clear that the property was sold for Rs.4000/-, Plaintiffs are not entitled to go beyond the document and say that consideration in substance was different from what was stated in Ex.A7-sale deed.
14. Sections 91 and 92 of Indian Evidence Act completely bars any party to set up a case that consideration for a sale is more than what is mentioned in the conveyance or in the contract. Evidence cannot be admitted to vary the provisions of the sale and as to the amount fixed as consideration i.e., where the price as fixed in the sale deed [Ex.A7] is Rs.4000/- oral evidence to the effect that the consideration was really Rs.50,000/- cannot be given.
15. Evidence of PWs.1 and 2 that under Ex.A7-sale deed property was sold for Rs.50,000/- being in variance with the consideration stated in Ex.A7 is not acceptable. While so, trial Court erred in saying that normally people register the document for lesser value to avoid stamp duty. By acting upon such inadmissible evidence as to the sale consideration, trial Court presumed existence of nexus between the sale of Sungakkaranpalayam property and purchase of item No.3 on 26.11.1973. Apart from oral evidence of PWs.1 and 2, no other evidence was adduced to show that 1st Defendant retained the money for two years i.e. from 1971 to 1973 and only from out of the surplus sale proceeds, 1st Defendant had purchased item No.3. It is not possible to hold that Plaintiffs have established nexus between the sale proceeds of Sungakkaranpalayam property and purchase of item No.3 for Rs.17,000/- on 26.11.1973.
16. Properties acquired by the Karta of a joint family with the aid of joint family nucleus or from out of the income derived from the properties inherited from forefathers are to be treated as joint family properties. But the burden that properties are the ancestral properties is on the coparcener to establish the existence of nucleus or that the income was derived from the properties. 1st Plaintiff who is the wife of 1st Defendant has not chosen to examine herself. 3rd Plaintiff-Kavitha was aged 28 years in 2002 [born in 1974]. In 1970's when the ancestral property was sold and suit item No.3 ['C' schedule] was purchased, 3rd Plaintiff-Kavitha was just about four years old and much weight cannot be attached to her evidence.
17. Be that as it may, 1st Defendant had sold one acre out of 1.87 acre in S.F.No.74 to one K.K.Shanmugam for Rs.47,000/- under Ex.B4-sale deed [11.09.1985]. 1st Defendant had also sold the remaining 0.87 cents in S.F.No.74 to Santhamani, wife of Shanmugam under Ex.B5-sale deed [11.9.1985]. Shanmugam sold item No.3 0.60= cents in S.F.No.74 to 4th Defendant under Ex.B6-sale deed [15.11.1988]. Both in Exs.B4 and B5, 1st Defendant has categorically stated that he was selling S.F.No.74 for purchasing better property with irrigation facility and the recital in Exs.B4 and B5 respectively reads as @nkny fz;l bjhifia vdf;F trjpahd ntW g{kpia fpiuak; th';Ftjw;fhf bgw;Ws;nsd;@/ As such from out of the sale proceeds, within two days after Exs.B4 and B5-sale deeds, 1st Defendant purchased 1.56 acres of agricultural land with Well, Motor Pumpset, Electricity Service Connection in Ariyappampalayam with 5 Anganam terraced house under Ex.A8-sale deed [13.09.1985]. Incidentally, it is pertinent to note that the said property of 1.56 acres purchased in Ariyappampalayam village has not been included in the suit for partition.
18. As pointed out earlier, Shanmugam sold 0.60= cents in S.F.No.74 [item No.3] to 4th Defendant under Ex.B6-sale deed [15.11.1988]. It is pertinent to note that plaint proceeds under the footing as if 4th Defendant had directly obtained the sale deed from 1st Defendant by exercising influence upon him and taking advantage of 1st Defendant's weakness. In this regard, the plaint averments read as under:-
@ ///// 1k; gpujpthjp jhth 1tJ mapl;l brhj;jpy; cs;s rhiy tPl;oy; FoapUe;J trpj;J tUfpwhh;/ thjpfs; neU efUf;F te;j gpd;dpl;L brz;gfg[J}h; giHa kzpafhuh; bghd;dg;gd; vd;gth; brd;w 26/12/2000k; njjp thjpfs; tPl;ow;F te;J 2 Kjy; 4 gpujpthjpfs;. 1k; gpujpthjpia Vkhw;wp fpuak; Vw;gLj;jpf; bfhz;oUg;gjhft[k;. 2k; gpujpthjp jhth 1tJ mapl;l brhj;ij nfhh;l; jhth eltof;iffs; K:yk; 1k; gpujpthjpaplkpUe;J fpuak; bgWtjw;Fk;. RthjPdk; vLg;gjw;Fk; Kaw;rpj;J tUfpwhh; vd;W Twpdhh;/ ////@
It was also suggested to 4th Defendant [DW1] that sale deed was obtained from 1st Defendant taking advantage of his weakness. As discussed earlier, 4th Defendant has not directly taken the sale deed from 1st Defendant. Whereas he had purchased item No.3 0.60= cents in S.F.No.74 from Shanmugam under Ex.B6-sale deed.
19. Tamil Nadu Amendment Act 1 of 1990 came into force on 25.03.1989. The property was not available with the family, when Tamil Nadu Amendment Act 1 of 1990 came into force under which Plaintiffs 2 and 3 claimed share in the joint family properties. When the property was not available for partition, Plaintiffs 2 and 3 cannot seek for partition of their 1/3rd share each in it. In any event, property was purchased in the name of 1st Defendant as Karta of Joint Hindu Family. So long as the Manager of the joint family administers the funds/property for the purposes of the family, he is not under the same obligation to economise or to save. As long as he applies the funds at his disposal for family purposes, the head of the family cannot in general be called on to defend the propriety of his past transactions, unless fraud, misappropriation or improper conversion is established. It has been held that a managing member of a joint family, is not bound to keep accounts. In the absence of fraud or improper conduct, the Karta can be held accountable only for the existing state of the joint family property. Plaintiffs have not alleged and proved any wavered life of 1st Defendant nor have they pleaded and proved any misconduct on the part of the 1st Defendant. From out of the sale of properties in Rangasamudram village under Exs.B4 and B5, as a prudent family manager, 1st Defendant had purchased 1.56 acres in Ariyappampalayam village under Ex.A8-sale deed. When sale proceeds of Rangasamudram property has been wisely utilised by the 1st Defendant in purchase of another property, the Plaintiffs cannot attribute imprudence to the 1st Defendant. Plaintiffs do not assail the sale deeds infavour of Shanmugam and Santhamani [Exs.B4 and B5] nor the sale deed infavour of 4th Defendant [Ex.A8]. Plaintiffs have only alleged that after the marriage of 2nd Plaintiff-Kasthuri, 1st Defendant was not taking care of the family and that he was acting on his own. Trial Court erred in ignoring the recitals in Exs.B4 and B5 that the property is sold only for purchase of another property and accordingly the 1st Defendant had purchased the property in Ariyappampalayam under Ex.A8-sale deed. Trial Court was not right in brushing aside the purchase of property in Ariyappampalayam village. As pointed out earlier, 1st Plaintiff-wife of 1st Defendant has not chosen to examine herself. Conveniently, she has abstained from the witness box. 3rd Plaintiff born in 1974 was only aged about 11 years in 1985 when the property was sold to Shanmugam and Santhamani under Exs.B4 and B5. In 1985 at the age of 11 years, it would have been quite improbable for the 3rd Plaintiff-Kavitha to have known about the nuances of the transactions or to depose that 1st Defendant was cheated. While so, trial Court erred in basing its conclusion upon the evidence of PW1 to record a finding that item No.3 is the joint family property.
20. Plaintiffs have produced Ex.A1-Panchayat Muchalika [04.11.1987] to state that properties were treated as joint family and in the panchayat item Nos.1 and 2 of the suit properties were partitioned between 1st Defendant and 1st Plaintiff i.e. S.F.No.75 of Sungakkaranpalayam village. Ex.A1-Panchayat Muchalika recognises Exs.B4 and B5-sale deeds [sale infavour Shanmugam and Santhamani] by referring to their property as boundaries:- "Item No.1 - rz;Kfk; rhe;jhkzp ,lj;jpw;Fk; fpHf;F; Item No.2 - rz;Kfk; rhe;jhkzp ,lj;jpw;Fk; fpHf;F@/ Ex.A1-Panchayat Muchalika strengthens the case of 4th Defendant and does not in any way advance the Plaintiffs case.
21. Case of Plaintiffs is that 1st Defendant has been cheated and that sale deed was taken from him by the 4th Defendant. Upon consideration of various number of litigations and other materials on record, in our considered view, it is not as if the 1st Defendant was quite innocent. Both 1st Defendant and 1st Plaintiff are involved in number of litigations. 1st Defendant filed O.S.No.152/1977 on the file of District Munsif Court, Gobichettipalayam against the Government to declare that he had prescribed title over S.F.No.75 [item No.1] and the said suit was dismissed on 29.07.1980. Aggrieved by the said Judgment, 1st Defendant preferred A.S.No.28/1980 before Sub-Court, Gopichettipalayam and the said Appeal was allowed on 11.3.1981.
22. As is seen from Ex.A11 [Judgment], 1st Defendant had filed O.S.No.38/1990 before the District Munsif Court, Sathyamangalam seeking injunction against K.K.Shanmugam and 4th Defendant-Sivasamy in respect of item No.1 [S.F.No.75] and the said suit was dismissed on 25.3.1991. By perusal of Exs.B2 and B3, 1st Plaintiff-Nagammal filed O.S.No.74/1992 against the Defendants 1, 2 and 4 claiming that she is the owner of half share in item No.1 [S.F.No.75] as per Ex.A1-Panchayat Muchalika. The said suit filed by 1st Plaintiff was dismissed on 30.06.1987. As is seen from Ex.A9, 2nd Defendant-Jayamani filed O.S.No.194/1992 against the 1st Defendant for Specific Performance in respect of S.F.No.75 [item No.1] and the suit was decreed on 09.04.1997. Aggrieved by decreeing of suit O.S.No.194/1992, 1st Defendant preferred A.S.No.229/1997 before District Court, Erode. Confirming the decree and judgment of the trial Court, A.S.No.229/1997 was dismissed on 12.09.1997. Aggrieved by the concurrent findings, 1st Defendant had also filed S.A.No.1542/2000. By the Judgment dated 11.10.2000, the said S.A.No.1542/2000 was dismissed.
23. Upon analysis of evidence and in the context of the fact that 1st Defendant and 1st Plaintiff were involved in number of litigations, we are of the view that 1st Defendant is not so innocent to be cheated. On the other hand, he is a persistent litigant and quite knowledgeable. There are enough materials to hold that Plaintiffs have filed the suit for partition at the instigation of 1st Defendant. In the absence of any substantial evidence, contention of Plaintiffs that 1st Defendant was cheated in obtaining the sale deed cannot be countenanced. Without analysing the conduct of 1st Defendant and 1st Plaintiff being persistent litigants, trial Court erred in holding that 1st Defendant was innocent in dealing with the sale transaction. Trial Court also erred in ignoring the fact that 1st Defendant had already sold the property to Shanmugam and Santhamani [Exs.B4 and B5] and that 4th Defendant is only a subsequent purchaser.
24. 2nd Plaintiff-Kasthuri is said to have married in 1990 and 3rd Plaintiff-Kavitha was not married. Tamil Nadu Amendment Act 1 of 1990 came into force w.e.f. 25.3.1989. As discussed earlier, the sale in respect of S.F.No.74 under Exs.B4 and B5 was on 11.1.1985. When the Amendment Act came into force on 25.3.1989 even though Plaintiffs 2 and 3 were unmarried and became entitled to partition, they would be entitled to claim for partition in the available properties. Trial Court did not bear in mind that when Amendment Act 1 of 1990 came into force on 25.3.1989, item No.3 was already sold and was not available for partition. While so, trial Court erred in passing decree for partition in item No.3 which was not available for partition. Suit is also bad for partial partition. As pointed out earlier, 1st Defendant had purchased 1.56 acres in Ariyappampalayam and the same was not included for partition in the suit. Non-inclusion of Ariyappampalayam property would also manifest the intention of Plaintiffs in litigating with the purchasers.
25. Trial Court erred in not properly analysing the evidence. Based upon the inadmissible evidence, trial Court erred in holding that item No.3 continued to be the joint family property and the trial Court erred in finding that 1st Defendant was not acting prudent. The approach of the trial Court is erroneous and the finding of the trial Court is perverse and are liable to be set aside.
26. In the result, the Decree and Judgment of the trial Court in O.S.No.8/1992 on the file of Additional District Judge, Fast Track Court No.II, Gobichettipalayam is set aside and the Appeal is allowed with costs of the contesting Appellant-4th Defendant. Suit O.S.No.8/1992 is dismissed. Consequently, connected Miscellaneous Petition is closed.
[R.B.I.,J] [G.M.A.,J]
16.08.2010
Index: Yes/no
Internet: Yes/No
bbr
To
The Additional District Judge,
Fast Track Court No.II,
Gobichettipalayam.
R.BANUMATHI,J
and
G.M.AKBAR ALI,J
bbr
Pre-delivery
Judgment in
A.S.No.888/2003
16.08.2010
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