(Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, praying to allow the above appeal setting aside the judgment and decree of the First Additional District Judge, Tiruchirappalli dated 14.09.2006 in O.S.No.13 of 2005 and to decree the said suit as prayed for.)
1. The plaintiffs in the suit in O.S.No.13 of 2005 on the file of the First Additional District Judge, Trichy, are the appellants in the above First Appeal.
2. The appellants have filed the suit for partition and separate possession of their share in the suit property. The suit property is a house plot measuring an extent of 3,600 square feet in T.S.No.2067 (Old) and New T.S.No.17.
3. The brief facts as set out in the plaint are as follows:
3(a). The suit property belonged to one B.Ramamoorthy Iyer and his brother B.Sundaresa Iyer by virtue of a sale deed dated 01.07.1970. The plaintiffs are the wife and children of B.Ramamoorthy Iyer. Since B.Ramamoorthy Iyer died on 17.01.2002, the plaintiffs, who are the legal heirs of B.Ramamoorthy Iyer, is entitled to share in the suit property.
3(b). The defendants are the widow and children of B.Sundaresa Iyer who is the joint owner purchased the suit property along with B.Ramamoorthy Iyer.
4. The defendants filed a written statement inter alia contending as follows:
4(a). Though the brothers B.Ramamoorthy Iyer and B.Sundaresa Iyer purchased the properties jointly under the sale deed dated 01.07.1970, they are not the exclusive owners of the suit property nor they purchased the suit property out of their own funds. The father of the brothers one Balasubramaniya Iyer had four sons including the two brothers and a wife by name Seethalakshmi.
4(b). Out of the joint earnings of Balasubramaniya Iyer and his sons, Balasubramaniya Iyer purchased the property either in the name of his wife or his sons. Hence, all the acquisitions were treated as the joint family properties. All the joint family properties were partitioned on 20.12.1990 orally and the said partition was also recorded subsequently in a memorandum signed by the parties on 10.07.1991.
4(c). The first appellant's/first plaintiff's husband B.Ramamoorthy Iyer was allotted in the oral partition, a property which was purchased in the name of Seethalakshmi, the wife of Balasubramaniya Iyer and mother of B.Ramamoorthy Iyer. B.Ramamoorthy Iyer sold the property allotted to him in the oral partition to one Murugesan under a sale deed dated 29.01.1996. Since the said oral partition was acted upon and B.Ramamoorthy Iyer himself had sold the property allotted to him in the oral partition, the suit is not maintainable. In the partition, the suit property was allotted to one B.Narayanan, another brother of B.Ramamoorthy Iyer. Since the said B.Narayanan is in possession and enjoyment of the suit property, the suit for partition without impleading him as a party is not maintainable. The suit without setting aside the partition is not maintainable. Since the suit property and other properties were already divided among the members of joint family and the parties to the partition are in possession of the properties allotted, the present suit for partition paying fixed Court fee under Section 37(2) of the Court Fees Act is not maintainable. The plaintiffs who had been ousted from the suit property will lose their right for partition as the brother of B.Ramamoorthy Iyer by name Narayanan had prescribed title to the suit property by adverse possession and ouster.
5. Before the trial Court, the appellants examined the fifth plaintiff and fourth plaintiff as P.W.1 and P.W.2 respectively. The third defendant was examined as D.W.1 and one Gopalan was examined as D.W.2. The plaintiffs have filed documents Ex.A1 to A7 and the defendants have filed Exs.B1 to B12. Before the trial Court, the appellants contended that the memorandum of partition which is marked as Ex.B1 dated 10.07.1991 is invalid on the ground that it was not signed by B.Ramamoorthy Iyer and that the document is not admissible in evidence for want of Stamp Duty and registration.
6. It was further contended by the plaintiffs / appellants that the suit property is not the joint family property and hence, the other brothers of B.Ramamoorthy Iyer are not entitled to any share. It was also argued on behalf of the plaintiffs / appellants that in the absence of any evidence to hold that the suit property is a joint acquisition for the benefit of all other members of the family, the suit property cannot be held to be the property of joint family.
7. The trial Court has framed specific issues,
a) whether the suit property is the absolute property of B.Ramamoorthy Iyer and B.Sundaresa Iyer?
b) whether the suit property was purchased out of the joint family nucleus or the funds provided by the father?
c) whether the oral partition followed by the memorandum is true, valid and enforceable?
8. The trial Court after considering the fact that B.Ramamoorthy Iyer along with his mother had executed a sale deed dated 15.01.1996 in respect of the property which was allotted to him in the oral partition held that the oral partition followed by the memorandum dated 10.07.1991 is proved and binding on B.Ramamoorthy Iyer and the plaintiffs / appellants.
9. During the cross examination of P.W.1, it was noticed by the trial Court that P.W.1 has admitted that as on the date, the suit property is a vacant land and that there was a building occupied by the tenants earlier. P.W.1 also admitted that the tenants were inducted by the father of B.Ramamoorthy Iyer and that he was collecting the rent from the tenants who were third parties. P.W.1 also admitted that the house tax receipts stand in the name of B.Narayanan who was allotted the suit property in the oral partition. The trial Court after relying upon the documents namely house tax receipts, water tax receipts, property tax demand notice and the electricity consumption card, etc., which are all in the name of B.Narayanan, the brother of B.Ramamoorthy Iyer, came to the conclusion that the suit property was allotted to the said B.Narayanan, the brother of B.Ramamoorthy Iyer in the oral partition, which was later on acknowledged by B.Ramamoorthy Iyer under Ex.B1. The trial Court, of course, while appreciating the evidence, has jumped into the conclusions in favour of the defendants. For example, Ex.A6 is a document of sale alleged to have been executed by B.Ramamoorthy Iyer along with his mother Seethalakshmi in respect of a property which was allotted to B.Ramamoorthy Iyer under Ex.B1. The recitals of this document Ex.A6 do not refer to the oral partition or the document Ex.B1 by which B.Ramamoorthy Iyer was allotted his property conveyed under Ex.A6. As a matter of fact, the recitals of Ex.A6 shows that the property conveyed under Ex.A6 belonged to Seethalakshmi by virtue of a sale deed obtained by her long back. This document also shows that B.Ramamoorthy Iyer joined in the execution of the sale deed only as a legal heir of Seethalakshmi. It is only to prove the real nature of transaction, the plaintiffs have produced this document to support their case. However, the trial Court construed this sale deed as a document in favour of the defendants to prove that B.Ramamoorthy Iyer, the husband of first appellant, has dealt with the property that was allotted to him under Ex.B1 and hence, the oral partition pleaded by the defendants was acted upon by B.Ramamoorthy Iyer, his brothers and their mother.
10. The learned counsel for the appellants strenuously argued that the suit property is not a joint family property as there is no pleading or evidence to prove the existence of a joint family or coparcenary. This point was not focussed by the trial Court. It is a settled position of law that there cannot be a presumption that a property held by any member of the family is a joint family property merely because the family was joint. In the present case except Ex.B1, there is no evidence to show that there exist a joint family or coparcenary as it is understood in the parlance of Hindu Succession. Absolutely, there is no evidence regarding the existence of any joint family nucleus so as to label any other property that stand in the name of the other members in the family to be the property of the joint family. In the written statement filed by the defendants except stating that the acquisition of the suit property is a joint acquisition, absolutely there is no material or evidence to prove the suit property as joint family property.
11. Having regard to the settled proposition of law that there is a presumption to treat the property as self-acquired property when the same stand in the name of the junior members of the family, I find that from the evidence discussed, the conclusion of the trial Court on the character of suit property as a joint family property is erroneous. However, the matter does not rest with that. The suit property, of course, was the property purchased by the two brothers and in the absence of any plea or evidence to conclude that the property belonged to the joint family, the suit property is only the property of the two brothers namely B.Ramamoorthy Iyer and B.Sundaresa Iyer. However, the document Ex.B1 speaks of earlier oral partition among the brothers and Seethalakshmi, the mother of B.Ramamoorthy Iyer. If there was a oral partition, among the family members, it can be treated as a family arrangement and the document Ex.B1 and the previous oral partition can be regarded as a family arrangement. The document Ex.B1 requires no registration or stamp duty as it is only a memorandum, recording the past event of oral partition and the same can be admitted in evidence and accepted as a family arrangement.
12. Further, the admission of P.W.1 that the suit property was in the enjoyment of father, cannot be brushed aside. Though the property was purchased by two brothers and there is no proof for the contribution of funds from the joint family nucleus, the admission of P.W.1 would establish the fact that the family consisting of the father and four sons were enjoying all the properties in common irrespective of the fact that they were acquired in the name of individuals. The evidence of P.W.1 clearly supports the case of the defendants that the suit property was treated as a joint family property and that the suit property was in the common enjoyment of all the members of the family. Though the oral partition followed by Ex.B1 is attacked by the appellants, the fact that such oral partition was acted upon, is supported by several documents.
13. The allotment of the suit property in favour of B.Narayanan and another brother B.Sundaresa Iyer is supported by revenue records from 1992. Since the suit property is in the exclusive possession and enjoyment of the two brothers who were given separate share in the suit property with reference to definite boundaries, the possession of the brothers from 1991 for more than 14 years before the suit for partition cannot be ignored. Despite the fact that a specific plea is taken by the defendants that the suit is bad for non-joinder of B.Narayanan who was allotted share in the suit property, the plaintiffs / appellants have not taken any steps to implead B.Narayanan as a party to the suit. The suit is, therefore, bad for non-joinder of necessary party. Though this Court can in such circumstances give opportunity to the plaintiffs / appellants to implead the other brother by remitting the matter to the trial Court, at this length of time it is not desirable as the plaintiffs cannot be allowed to implead the other brother and his heirs to their prejudice after this length of time, giving a fresh lease of life to the litigation. The plaintiffs / appellants knowing full well that the substantial portion of the suit property is in the enjoyment of another brother B.Narayanan has not chosen to implead him despite the enjoyment of the suit property by the B.Narayanan is proved by several documents. The learned counsel for the plaintiffs / appellants strenuously contended that the specific case of plaintiffs / appellants in the pleading and evidence is that the suit property was allotted to B.Narayanan is contrary to the terms of Ex.B1 wherein both B.Narayanan and B.Sundaresa Iyer were given equal share. However, this does not take the plaintiffs / appellants to advance their case.
14. When the plaintiffs / appellants are not in enjoymentof the property and the suit property is in the exclusive possessionand enjoyment of the two brothers, who were allotted in the oralpartition followed by Ex.B1, the plaintiffs / appellants is notentitled to any relief in the present suit, though this Court findthat the trial Court is not right in its conclusions with regard tothe character of the suit property on the interpretation ofdocument Ex.A6. This Court for all reasons stated above is not ina position to grant any relief to the plaintiffs / appellants andhence, this Appeal Suit is dismissed. However, there is no orderas to costs. Consequently, the connected miscellaneous petition isclosed.