(Prayer: Appeal Suit is preferred under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 29.06.1998 passed in O.S.No.187 of 1988 on the file of the learned Sub Judge, Krishnagiri.)
1. The appeal suit on hand is directed against the judgment and decree dated 29.06.1998 passed by the learned Sub Judge, Krishnagiri in O.S.No.187 of 1988.
2. The appellants in the appeal suit are the plaintiffs in the suit and the respondents in the appeal suit are the defendants in the suit.
3. The suit was instituted by the appellants for partition.
4. The facts, in nutshell, as narrated, in the plaint are that the suit schedule property originally belonged to the Joint Hindu Family of one Mr.A.V.M.Thimmaraya Chetty, who was the Kartha. The said Mr.A.V.M.Thimmaraya Chett5i is the husband of the first plaintiff and the father of the plaintiffs 2 to 7 and the defendants 1 to 3. The plaintiffs 2 to 5 and the defendants 1 to 3 are the sons and the plaintiffs 6 and 7 are the daughters respectively of the said Mr.A.V.M.Thimmaraya Chetti. The plaintiffs 2 to 5, the defendants 1 to 3 and the said Mr.A.V.M.Thimmaraya Chetti constituted members of the Joint Hindu Family. Out of the sons of Mr.A.V.M.Thimmaraya Chetti, the defendants 1 and 2 have executed the registered Release Deeds. The second defendant for himself and as Guardian for his minor son Ravi has executed a Release Deed dated 12.03.1981 in favour of the said Mr.A.V.M.Thimmaraya Chetti, the plaintiffs and the third defendant. Similarly, the first defendant has also executed a registered Release Deed dated 09.08.1974 in favour of the said Mr.A.V.M. Thimmaraya Chetti, as he was the Kartha of the Joint Family.
5. Again on 09.08.1977, the first defendant executed another unregistered Release Deed in favour of the said Mr.A.V.M.Thimmaraya Chetti, releasing his rights in the Joint Family properties purchased in the name of the said Mr.A.V.M.Thimmaraya Chetti. The Joint Family properties were not specified in the Release Deed dated 09.08.1974 and because of certain properties, though standing in the name of the said Mr.A.V.M.Thimmaraya Chetti by way of Sale Deeds, were also treated as Joint Family properties. Another Release Deed dated 09.08.1977 was executed by the first defendant. After execution of the abovesaid Release Deeds, the said Mr.A.V.M.Thimmaraya Chetti, the plaintiffs 2 to 5 and the third defendant continued to enjoy the suit properties jointly. The said Mr.A.V.M.Thimmaraya Chetti died on 07.05.1982 in Kannanahalli.
6. The plaintiffs and the defendants 1 to 3 are the legal representative of the said Mr.A.V.M.Thimmaraya Chetti. Therefore, each of them are entitled to common 1/6th share in the suit properties. After the death of the said Mr.A.V.M.Thimmaraya Chetti, his 1/6th share devolved upon the plaintiffs and the defendants 1 to 3, under Hindu Succession Act. Thus, the plaintiffs 2 to 5 and the third defendant are each entitled to 11/60 share in the suit properties. The first plaintiff, the plaintiffs 6 and 7 and also the defendants 1 and 2 are each entitled to 1/60 share in the suit schedule properties. The said Mr.A.V.M.Thimmaraya Chetti was only doing agriculture and money lending and he had no other avocation. The said Mr.A.V.M. Thimmaraya Chetti had possessed about 11.01 acres of Garden lands in Karadu Gollapatti Village of Pulikonda Taraf in Krishnagiri Taluk, as per the registered Partition Deed dated 31.01.1961 executed between himself, his father and brothers. The abovesaid properties are very valuable properties, consisting of coconut, mango and other trees. The said Mr.A.V.M.Thimmaraya Chetti was getting good income from the ancestral properties, leaving surplus after meeting the expenses of the family. The said Mr.A.V.M.Thimmaraya Chetti also got gold jewels, cash and money lending out standings to his share, which were also referred to in the said Partition Deed dated 31.01.1961. The said Mr.A.V.M.Thimmaraya Chetti continued the family money lending business with the income from the Joint Family and also the family money lending transaction, as he was the Kartha of the family. The Sale Deeds were in his name for the benefit of the Joint Family.
7. It is contended that Mr.A.V.M.Thimmaraya Chetti was leading a way ward life and he was not caring for the welfare of the family. The said Mr.A.V.M.Thimmaraya Chetti executed the registered Will dated 13.07.1981 in respect of some of the Joint Family properties in favour of the plaintiffs 1 to 6 and the third defendant as revealed from his reply notice dated 30.03.1982. It is further admitted in the plaint itself that Mr.A.V.M.Thimmaraya Chetti had executed a Sale Deed on 15.03.1982 in favour of the fourth defendant in respect of item No.4 in the suit schedule property, more specifically, in S.No.675/3 of Bargur Village. It is contended that the fourth defendant is none other than the wife of the said Mr.A.V.M.Thimmaraya Chetti’s brother-in-law Mr.B.K.Murugan. It is contended that the Sale Deed was executed without any power as item No.4 also belonged to the Joint Family and the Sale Deed is invalid. It is contended that the fourth defendant was colluding with the third defendant acting against the interest of the Joint Family. Thus, the plaintiffs are constrained to file the suit for partition.
8. The fourth defendant filed written statement as the defendants 1 to 3 became ex parte. The fourth defendant contested the suit in O.S.No.187 of 1988 stating that she is the bona fide purchaser of the suit property mentioned as item No.4 in the plaint and she became the absolute owner by virtue of the Sale Deed executed in favour of Mr.A.V.M.Thimmaraya Chetti. The fourth defendant had paid a valid consideration and therefore, the said property cannot be the subject matter of partition in the suit itself.
9. It is contended that the Sale Deed was executed for a valuable consideration and the fourth defendant is in actual possession and enjoyment of the property from the year 1982 as the possession was also handed over by Mr.A.V.M.Thimmaraya Chetti to the fourth defendant and by denying all other contentions in the plaint, the fourth defendant prayed for the dismissal of the suit.
10. The Trial Court framed the issues for consideration that at the time of death of Mr.A.V.M.Thimmaraya Chetti, whether there was Joint Family or not?, whether there was Joint Family property or not?, Whether the plaintiffs were in the Joint possession of the suit schedule properties or not?, Whether the Sale Deed was executed in favour of the fourth defendant on 15.03.1982 or not?, Whether the property measuring 0.31 cent was purchased by way of sale for a valid consideration or not?, Whether the fourth defendant was in possession and enjoyment of the property in item No.4 of the schedule or not?, Whether the rights of the parties can be decided without setting aside the Sale Deed executed in favour of the fourth defendant or not?, As per the Partition Deed dated 13.07.1981, whether Mr.A.V.M.Thimmaraya Chetti has divided the property or not?, At the time of death of Mr.A.V.M.Thimmaraya Chetti, whether there was any property or not?, Whether the said Mr.Thimmaraya Chetti died intestate or not?, Whether Sale Deed executed in favour of the fourth defendant is legally valid or not?. The other issues are also framed mostly in connection with the issues stated above.
11. The Trial Court divided the issues which all are connected and the Trial Court proceeded the trial based on the documents and the evidences produced by the respective parties. The judgment and decree was passed commonly in respect of O.S.Nos.187 of 1988 and 327 of 1993 as the issues framed in respect of both the suits are almost similar, the Trial Court examined the documents and considered the deposition of the witnesses and arrived a conclusion that the suit property is not a family property and at the time of death of Mr.A.V.M.Thimmaraya Chetti, there was no Joint Family at all. When there was no Joint Family, the suit schedule property cannot be construed as a Joint Family Property. Item No.4 of the suit schedule property purchased by the fourth defendant was also not in the possession of the Joint Family and the said Item No.4 was sold in favour of the fourth defendant by Mr.A.V.M.Thimmaraya Chetti through Sale Deed dated 15.03.1988 and the possession was also handed over to the fourth defendant. The fourth defendant is in enjoyment of item No.4 of the suit property right from the year 1982 and the said facts are not disputed by the parties.
12. The learned counsel appearing on behalf of the appellants mainly contended that the defendants 1 to 3 remained ex parte and in respect of item Nos.1, 2 and 3, the Trial Court ought to have granted the relief in favour of the plaintiffs. This Court is of the considered opinion that when the Trial Court found that there was no Joint Family at the time of death of Mr.A.V.M.Thimmaraya Chetti and the properties were not considered as a Joint Family property and one item was already sold in favour of the fourth respondent for a valid consideration in the year 1982 and the said claim also cannot be considered.
13. The sale consideration in respect of Item No.4 of the suit schedule property was made for a valid consideration in favour of the fourth defendant and there was no irregularity or illegality in respect of the sale, as the suit properties were not construed as a Joint Family property. Considering all these facts and circumstances, as narrated by the plaintiffs, the Trial Court made an observation as follows:-
“TAMIL”
14. Based on the said findings, the Trial Court arrived a conclusion that the relief of partition, cannot be granted as on the date of death of Mr.A.V.M.Thimmaraya Chetti was not established by the plaintiffs and further, it was not proved by the plaintiffs that the properties are the Joint Family properties. This being the factum, this Court do not find any perversity or infirmity in respect of the judgment and decree passed by the learned Sub Judge, Krishnagiri in O.S.No.187 of 1988.
15. Accordingly, the judgment and decree dated 29.06.1998 passed by the learned Sub Judge, Krishnagiri in O.S.No.187 of 1988 is confirmed and consequently, the present appeal suit, namely A.S.No.728 of 1999 stands dismissed. However, there shall be no order as to costs.