THIRUVENKADA GOUNDER Vs. AMMAIAPPAN

JUDGEMENT

(1.) FIRST defendant in O. S. No. 646 of 1985 on the file of the Additional district Munsif Court, Tindivanam, aggrieved by the judgment and decree of the learned Subordinate Judge, Tindivanam in A. S. No. 55 of 1990 dated 7. 1. 1992, filed the present second appeal. During pendency of the second appeal, the first defendant died and hence his legal representatives were impleaded as appellants 2 to 4 vide orders of this Court dated 25. 8. 2005 in C. M. P. Nos. 16946 to 16948 of 2004. Plaintiffs 1 and 2 and defendants 2 and 3 in the original suit are respondents herein.

(2.) THE facts that are necessary for the disposal of the second appeal, as could be seen from the plaint and written statement, are as follows. (a) The suit properties originally belonged to the joint family consisted of one Hariputhiri Gounder, the grandfather of the plaintiffs, and his sons Munusamy Gounder and Elumalai Gounder, the third defendant in this suit. In an oral partition, the western half of item No. 1 of the suit property was allotted to the elder brother Munusamy Gounder and the eastern half was allotted to the third defendant Elumalai Gounder and they were enjoying their respective properties by paying kist, etc. , separately. The suit second item is a well which was being enjoyed in common. The said munusamy Gounder, by registered sale deed dated 27. 7. 1972, sold his share of western half of item No. 1 in favour of one Dharmasivam, son of the first defendant. Subsequently, by the registered exchange deed dated 29. 8. 1972, first defendant on behalf of his minor son, and the third defendant on his behalf and on behalf of his minor son Kothandaraman, the first plaintiff herein, exchanged their respective shares in item No. 1 of the suit property. From that date onwards, according to the pla intiffs, the entire extent of item No. 1 was in the enjoyment of the joint family consisting of the third defendant Elumalai Gounder and his sons, the plaintiffs herein. Elumalai gounder had also erected a cattle shed spending Rs. 2,000/- in that property. The second defend ant is the Uncle's son of Krishnaveni Ammal, the mother of the plaintiffs and he is close to the third defendant Elumalai Gounder, father of the plaintiffs. He, taking advantage of the weaknesses of the third defendant and with ulterior motive, got a sale deed registered in his favour on 28. 11. 1984 in respect of the suit properties. Subsequently, the second respondent secretly and in a hurried manner, created another sale deed dated 4. 12. 1984 to appear as if the suit properties were sold to the first respondent. As the documents were created behind the back of the plaintiffs and against the welfare of the joint family of the plaintiffs, the same will not bind the plaintiffs. It is the further alleged in the plaint that taking advantage of the alleged sale deed dated 4. 1 2. 1984, the first defendant on 12. 3. 1985 entered into the suit property and attempted to heap the hayricks and tie his cattles in the cattleshed, which was prevented by the plaintiffs. The first defendant, using his money and muscle power, prevented even the plaintiffs to tie their cattles in the cattleshed. As the third defendant acted against the interest of the plaintiffs, they filed the suit for partition to divide the suit property into three equal shares and to allot 2/3rd share to them and also claiming Rs. 30/- per months towards loss of rent in respect of their 2/3rd share from the date of suit till payment. (b) In the written statement filed by the first defendant, he admitted that there was an oral partition between the third defendant and his elder brother Munusamy Gounder with regard to suit item No. 1; that the munusamy Gounder sold his share of the property to the first defendant; that the first and third defendants exchanged their respective share of the properties; and that, in view of the said exchange, the third defendant became entitled to the entire extent of suit item No. 1. But the allegations in the plaint that the third defendant against the welfare of the joint family of the plaintiffs, without any necessity and misdirected by the second defendant, sold the suit properties to the second defendant and later the second defendant secretly and hurriedly created a forged sale deed on 4. 12. 1984, are categorically denied. According to the first defendant, neither the plaintiffs nor the third defendant could claim any right over the suit properties. The case of the first defendant is that during November, 1984, for the joint family necessity and to purchase oil engine, the third defendant required funds and for the said purpose, he requested the first defendant to purchase the suit properties for valid consideration, for which the first defendant gave his consent. To that effect, third defendant on his own behalf and on behalf of his minor sons, entered into an oral agreement with the first defendant on 24. 11. 1984 for a total consideration of Rs. 5,250/- and obtained rs. 2,550/- as advance and delivered possession of the suit properties on that day itself. From that date onwards the first defendant is in possession and enjoyment of the suit properties. Two days later, the balance amount of rs. 2700/- was also obtained by the third defendant, with an undertaking to execute the sale deed at a later date. But contrary to the said oral agreement, the third defendant colluding with the second defendant, forged a sale deed dated 28. 11. 1984 to appear as if the suit properties were sold to the second defendant. On coming to know this, first defendant enquired into the matter and the second defendant executed a sale deed dated 4. 12. 1984 in favour of the first defendant in respect of the suit properties. The further case of the first defendant is that the third defendant without acting upon the agreement dated 24. 11. 1984, with a view to cheat the first defendant, in the name of his minor sons, the plaintiffs herein, filed the present suit. The mother of the plaintiffs Krishnaveni Ammal knows about the agreement between the first and third defendants and hence she cannot sustain the case on behalf of her minor sons, the plaintiffs herein. The first defendant also denied any incident on 12. 3. 1985 as alleged in the plaint. In fact, in the suit item No. 1, there is no cattle shed but there is only a thatched hut, wherein one Annammal, the wife of the Munusamy Gounder is residing from 6. 12. 1984 by paying monthly rent of Rs. 5/- to the first defendant. The said annammal is a necessary party to this suit and as she was not impleaded, the suit is bad for non-joinder of necessary party. There is no cause of action for the suit and the cause of action alleged in the plaint is an imaginary one. Neither the plaintiffs, nor the third defendant have any manner of right over the suit properties, and consequently the plaintiffs cannot sustain the suit for the reliefs asked for.

(3.) DURING trial, the mother of the minor Plaintiffs Krishnaveni ammal was examined as PW-1 and one Krishnan was examined as PW-2. On behalf of the plaintiffs, Exs. A-1 to A-5 were marked. The first defendant examined himself as DW-1 and one Ramachandra Gounder and Subbaraya Mudaliar were examined as DWs. 2 and 3. Through them, Exs. B-1 to B-6 were marked. After considering the entire case in the light of the evidence placed before it, the trial Court by its judgment dated 9. 8. 1990, came to the conclusion that the plaintiffs were not entitled to get any relief as claimed in the plaint and consequently dismissed the suit.