On the side of the 1st respondent examined several witnesses to prove the vacant site of the suit property was purchased out of salary and loan obtained by the 1st respondent and the super structure also constructed on various dates by obtaining loan from bank and discharged by first respondent and his wife's salary amount. Per contra, on the side of the appellants have not produced any documents to prove the income from joint family properties or sufficient income from the alleged diesel bunk business. The appellant also not proved the loan obtained for construction by appellants and discharged the above said loan by them. Per contra, the 1st appellant himself admitted that the 1st respondent has obtained loan for part consideration for purchase of site and construction of the building in the suit property.
Per contra, on the side of the 1st respondent has proved that the suit vacant site and also super structure was constructed by the 1st respondent out of his own income and the suit property is self-acquired property of the 1st respondent and not a joint family property.
Madras High Court
Sivasamy vs Kalaiselvan on 17 February, 2014
Citation; AIR 2014 (NOC) 457 Madras
The appellants who are plaintiffs in the suit filed this second appeal against the judgment and decree dated 09.09.2003 made in A.S.No.20 of 2003 on the file of District Court, Nagapattinam confirming the judgment and decree dated 30.01.2002 made in O.S.No.11 of 1998 on the file of Additional Subordinate Court, Nagapattinam.
2. For the sake of convenience, the plaintiffs in the suit is referred as appellants and the defendants in the suit is referred as respondents here after.
3. The appellants/plaintiffs filed a suit in partition of 3/5 share in the suit property. Briefly the case of the appellants is that the 1st appellant is the father of the 2nd and 3rd appellant and also the respondents 1 and 2. The 1st appellant was working as Health Inspector in Tamil Nadu Service and retired in the year 1985. Out of the retirement benefits like Gratuity, Provident Fund and also obtained loan and taken a licence for running diesel bunk at Velankanni, in the name of 1st respondent, who was unemployed graduate belonging to Adi Dravida Community and therefore, obtained licence in his name but doing business by the 1st appellant for the benefit of the family members. On 28.02.1988, the 1st appellant had purchased a vacant site at Velankanni in the name of 1st respondent for construction of house for the family for a sale consideration of Rs.31,000/- out of income from joint family diesel business. In the above said vacant site, the 1st appellant had constructed two houses in the year 1991, by obtaining loan and also out of the income from diesel business. The loan obtained by the 1st respondent was also utilised for construction of some portion in the house. The 1st respondent taking advantage, he had executed a settlement deed, in favour of the 2nd respondent and trying to alienate the property to third parties. Since the suit property is a joint family property, the plaintiffs have filed the suit for partition and separate possession of their 3/5 share in the suit property.
4. The 1st respondent/1st defendant filed a written statement, in which denied various allegations in the plaint. The first respondent denied the contention of the appellant that the first appellant obtaining loan and doing diesel business as joint family business. It is also denied that the licence for running diesel business in the name of first respondent as benami since it is illegal. The first appellant earned only a meagre amount as salary and no other income for his family. Considering the family situation, the 1st respondent was already working in a private company and earned money in the year 1980 and then temporarily joined in Tamil Nadu Civil Supplies Corporation and earned money. On 05.04.1983, he applied for licence to run a diesel business. On 08.02.1984, the licence was issued to the 1st respondent. The 1st respondent was taken a temple land for lease of Rs.1250/- per year. The 1st appellant was obtained loan for Rs.68,000/- from Indian Overseas Bank, Velankanni for purchase of pump-set and construction of superstructure and started the business. In the month of August 1984, the 1st respondent was joined as a writer in Bank of India and also doing diesel business. The wife of the 1st respondent also working in central Government service. As per agreement of sale entered in between the 1st respondent and three others namely, Sambasiva Devar, Ulaganathan and Senbagavalli, later the first respondent obtained sale deed on 29.02.1988 by obtaining loan from Bank of India and paid the sale consideration. Therefore, the suit property is self-acquired property of the 1st respondent. Further, the 1st respondent has obtained a loan of Rs.98,700/- from Bank of India and constructed two storied building in the year 1991. The 1st respondent has discharged the first loan and again obtained loans for a sum of Rs.33,900/- and Rs.51,000/- on 31.03.1994 and constructed other portions like rooms, walls etc, in the building. The above said loan were discharged by recovered from 1st respondent salary. On 11.09.1999 also the 1st respondent obtained loan for Rs.1,89,560/- for extension of building and mortgaged the suit property for loan and later the 1st respondent discharged the loan from his salary and also his wife salary who is Central Government employee, in instalments. Therefore, the suit property is absolute property of the 1st respondent. The appellants or the 2nd respondent has no right in the suit property.
5. The 2nd respondent / 2nd defendant has also filed a separate written statement, in which, it is stated since the 1st respondent was unemployed graduate, diesel bunk was taken on lease in the name of the 1st respondent and entrusted the management to the 2nd respondent. Further, the house site in the suit property purchased in the name of 1st respondent, on the ground that it is convenient for obtaining loan from the Bank. Therefore, the suit property is joint family property and it is false to state that the 2nd respondent is colluded with the 1st respondent and attempted to sell the property to third parties. The suit property also in the possession of tenant and the 1st respondent received the rent. In partition before panchayatars, it is decided that the diesel bunk business to be transferred in the name of 2nd respondent and the 2nd respondent to release his share in the suit property. But, the management of the diesel bunk was forcibly taken from the 2nd respondent. Therefore, he prayed for to allot his share in the suit property.
6. The trial court has framed four issues and on the side of the appellants/plaintiffs examined three witnesses as PWs 1 to 3 and marked 15 documents as Exs.A1 to A15. On the side of the 1st respondent examined five witnesses as DWs 1 to 5 and marked 54 documents as Exs.B1 to B54 and on the side of the 2nd respondent he himself deposed as DW6 and marked one document as Ex.B55.
7. Considering the oral and documentary evidence adduced on either side, the trial court has dismissed the suit. Aggrieved over the finding of the trial court, the appellants preferred first appeal in A.S.No.20 of 2003 and the 1st appellate court also confirmed the decree and judgment passed by the trial court and dismissed the first appeal.
8. Aggrieved over the concurrent findings of both the courts below, the appellants/plaintiffs preferred this second appeal.
9. The Second Appeal is admitted on the following substantial questions of law :
" 1. Whether the lower appellate court erred in law in holding that the 1st defendant (first respondent) is the owner of the suit property overlooking his admission in O.S.No.226/87 that the diesel business is a joint family business ?
2. Whether the 1st defendant (first respondent) was an unemployed youth and could have not contributed the entire funds for the acquisition of the suit house, since the income of the joint family diesel business as well as funds of the plaintiffs (appellants) have been utilised for the acquisition whether the courts below erred in holding that the suit house is not a joint family property ?"
10. Heard the learned counsel appearing on either side and perused the entire material records.
11. The appellants filed a suit for partition in respect of the suit property namely re-Survey No.78/17, in which two storied building was constructed at Door No.2/22. The relationship between the parties are not in dispute. The learned counsel appearing for the appellants submitted that the 1st appellant, who is the father of the other appellants and the respondents was working as Health Inspector in Tamil Nadu Service and retired from service in the year 1985 and obtained licence for running a diesel bunk, in the name of his son, 1st respondent since he was unemployed graduate but the 1st appellant running the diesel bunk business. The learned counsel further submitted that out of income from diesel business and also obtaining loan, the vacant site in the suit property was purchased by the 1st appellant, in the name of his son, the first respondent and constructed two storied building in the suit property and therefore, the suit property is a joint family property and not a self-acquired property of the 1st respondent and hence, filed the suit for partition of the plaintiffs 3/5 share in the suit property.
12. Per contra, the learned counsel appearing for the 1st respondent would submit that the 1st respondent was unemployed graduate and he applied for loan on 05.04.1983 for obtaining licence to run a diesel business and the licence was issued to the 1st respondent on 08.02.1984. The 1st respondent has taken a temple land for lease of Rs.1200/- per year and also obtained loan of Rs.68,000/- from Indian Overseas Bank and put up super-structure and started the business and therefore, the above said diesel business is the own business of the 1st respondent and not a joint family business. The learned counsel appearing for the 1st respondent has further submitted that the 1st respondent was joined as writer in Bank of India, in the month of August 1984 and also looking after the diesel business. The wife of 1st respondent also working in central Government service and out of the above said income and also obtaining loan from Bank of India, purchased the suit vacant site on 29.02.1988. The 1st respondent has again obtained a loan of Rs.98,700/- from Bank of India and constructed a building in the year 1991 and discharged income from the 1st respondent and his wife. The 1st respondent again obtained loan of Rs.33,900/- and Rs.51,000/- and completed the building in the suit vacant site and the above said loan was discharged by the 1st respondent's salary. On 11.9.1999 also, the 1st respondent obtained loan for a sum of Rs.1,89,560/-, for further construction in the suit property and the above said loan also made by executing the mortgage deed, in respect of the suit property in favour of the Bank and discharged the above said loan from his salary by instalment and hence, the suit property is absolute property of the 1st respondent.
13. Therefore, the main question to be decided whether the suit property is joint family property as pleaded by the appellants or self-acquired property as contended by the 1st respondent.
14. Admittedly, the suit property was purchased in the name of 1st respondent. At the time of purchase of the above said property, admittedly, the 1st appellant alone is kartha of the family as father of the other appellants and respondents. On the side of the appellants have not stated any satisfactory reasons, why the suit property was not purchased in the name of kartha of the family and only purchased in the name of 1st respondent, who is junior member of the family.
15. Admittedly, the appellants have not stated in the plaint or at the time of evidence that the family having sufficient joint family properties to give income to obtain licence to run diesel bunk business and out of joint family income, the super-structure was constructed to run the diesel business. The contention of the appellants is that the 1st appellant was working as Health Inspector and he was retired from service and out of retirement benefits running the diesel bunk business. Admittedly, the 1st appellant was retired only on 31.12.1985, but, the 1st respondent has applied for licence to run the diesel bunk business on 05.04.1983 and obtained licence on 08.02.1984. PW1, who is 1st appellant admitted at the time of evidence that in the year 1984, the 1st respondent has obtained licence and in the year 1985 he started diesel bunk business. On the side of the appellants have not produced any documents to prove the amount received as retirement benefits and when the above said amount received by 1st appellant. The above said facts are not stated in the plaint or at the time of evidence. The 1st appellant also admitted at the time of evidence that he has not produced any documents to prove the above said income of retirement benefits received at the time of retirement. The 1st appellant has also admitted that except the salary amount no other income for the family. Further, in the plaint, it is stated that the above said diesel bunk business was running out of retirement benefits and also obtaining loan. But, at the time of evidence, PW1 has stated the above said business was running out of retirement benefits and also sold the jewels of his wife for Rs.50,000/-. Except oral evidence of PW1, no other oral evidence or documentary evidence to prove the same. Further, on the side of the appellant deposed as the accounts of diesel bunk business are available with them. But, the above said accounts not produced and no reason has been given for non-production of accounts to prove the 1st appellant alone running the diesel bunk business. Therefore, both the courts below have rightly discussed about the oral and documentary evidence adduced on either side and held that the appellants have not proved the contentions of the appellants that the licence for the above said business obtained in the name of 1st respondent but, the business was running as joint family business.
16. Admittedly, the above said diesel business, licence was obtained by the 1st respondent since he was unemployed graduate. Further, from the oral evidence would reveal that even before obtaining licence, he was temporarily working in a private company and also in Tamil Nadu Civil Supplies Corporation and then on 05.04.1983, he applied for licence to run the business and obtained licence on 08.02.1984. It is further revealed that the 1st respondent has obtained loan of Rs.68,000/- from Indian Overseas Bank, Velankanni. The above said facts are not denied by the appellant side. Further, the 1st respondent has clearly deposed that the electricity, telephone and building tax are all relating to the diesel bunk business in the name of 1st respondent. Therefore, both sides evidence revealed that the diesel bunk licence was obtained by the 1st respondent since he was unemployed graduate and running the diesel bunk business by 1st respondent alone by obtaining loan etc., and paid the tax for electricity, telephone relating to diesel business.
17. The learned counsel for the appellant mainly contended that the 1st respondent has stated in the earlier suit proceedings in O.S.No.226 of 1987 as the diesel bunk business was family business and therefore, it is proved that the above said business is joint family business. Both the courts below have discussed about the said contention and held that since the authorities issued notice not to run the business on the ground that he was joined duty in a Bank and challenged the above said order, the 1st respondent has filed the above said suit. Since Indian Petroleum Corporation Authorities attempted to close the business, the 1st respondent has filed a suit and to escape from cancellation of licence, the above said averments were made and only on that ground it cannot be presumed as it is joint family business. Both the courts below have correctly discussed in detail about the appellant side contention and finally held that only on the ground that some averments made in the plaint in earlier suit cannot be presumed as it is a joint family business as contended by the appellants. Further, from Ex.B1, another suit filed by the 1st appellant in O.S.No.95 of 1997 and his wife revealed that the diesel bunk business was included as one of the suit property but later it was deleted. Both the courts below have considered the above said facts also and given a correct findings that the appellants diesel bunk business is not a joint family business and it is a separate business of the 1st respondent.
18. As rightly pointed out by the learned counsel for the 1st respondent even assuming the above said diesel bunk business was joint family business for argument sake, the appellants have not produced any documents to prove that the suit property was purchased out of the income from the diesel bunk business and the appellants have obtained loan for purchase the site or construction of the building and therefore, the suit property is not a joint family business as contended by the appellant.
19. As already stated, the vacant site of the suit property was purchased in the name of 1st respondent, under Ex.A1 registered sale deed on 28.02.1988. Admittedly, at the time of above said sale deed, father of the 1st respondent is alive and no reason has been stated by the appellants why the suit property was purchased in the name of junior member, if really, the property purchased out of joint family fund. Further, both the courts below have discussed about the oral and documentary evidence adduced on either side and held that the above said vacant site was purchased by the 1st respondent and put up construction from his wife's salary also and obtained loan from Bank in various dates and discharged the above said loan. As rightly pointed out by the learned counsel for the respondent, on the side of the appellants have not at all produced any documents to prove that the above said house site was purchased out of joint family income or the appellants obtained loan from Bank and discharged the loan out of joint family income. It is also not proved that the jewels of 1st appellant's wife also used to purchase the suit property or for construction of the building as deposed at the time of oral evidence. On perusal of various documents produced by the 1st respondent revealed that the suit property is absolute property of the 1st respondent as held by both the courts below. As rightly discussed by both the courts below, from the oral testimony of appellants witnesses itself clearly proved that the suit property is self-acquired property of the 1st respondent.
20. On the side of the 1st respondent examined several witnesses to prove the vacant site of the suit property was purchased out of salary and loan obtained by the 1st respondent and the super structure also constructed on various dates by obtaining loan from bank and discharged by first respondent and his wife's salary amount. Per contra, on the side of the appellants have not produced any documents to prove the income from joint family properties or sufficient income from the alleged diesel bunk business. The appellant also not proved the loan obtained for construction by appellants and discharged the above said loan by them. Per contra, the 1st appellant himself admitted that the 1st respondent has obtained loan for part consideration for purchase of site and construction of the building in the suit property.
21. Per contra, on the side of the 1st respondent has proved that the suit vacant site and also super structure was constructed by the 1st respondent out of his own income and the suit property is self-acquired property of the 1st respondent and not a joint family property. Therefore, the concurrent findings of both the courts below are not perverse or illegal findings and answered both substantial questions of law as against the appellants. In view of the above said findings, this Court is of the view that the above said findings of both the courts below are to be confirmed and the second appeal is to be dismissed.
22. In the result, the second appeal is dismissed. No order as to costs. Consequently, connected C.M.P.No.1440 of 2008 is closed.
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