M. PALANISWAMY GOUNDER Vs. NACHIMUTHU GOUNDER AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 862 of 1968 in the Court of the District Munsif, Tiruppur, is the appellant herein. The plaintiffs, Nachimuthu Gounder and Palaniswami Gounder, are brothers. They have another brother by name Chinnaswamy Gounder, who is the second defendant in the suit. The first defendant is the son of one of the sisters of the plaintiffs and the second defendant. The father of the plaintiffs and the second defendant and the maternal grandfather of the first defendant is one Ramaswamy Gounder. The A schedule properties to the plaint are 3 items conveyed under Exhibits A -2 to A -4 dated 28th March, 1949, 28th August, 1950 and 21st September, 1950 in the name of the said Ramaswamy Gounder. The case of the plaintiffs in the plaint was that though the sale deed Exhibits A -2 to A -4 were taken in the name of the said Ramaswamy Gounder, he did not pay the purchase price for the sale transaction out of his own funds, but that the purchase price came out of the income from B schedule property owned by the plaintiffs and the second defendant. According to the plaintiffs the A schedule properties were the separate properties of theirs and the second defendant. On 17th October, 1968 the said Ramaswamy Gounder was said to have been taken to the house of Peria Nachammal, their sister, by the first defendant and on the next day viz., 18th October, 1968 the first defendant got executed by the said Ramaswamy Gounder and registered a conveyance for a sum of Rs. 10,000 of the A schedule properties which were worth much more. The plaintiffs' case was that no consideration passed for the sale deed, that it was a sham and nominal document and that at the time of the execution of the said conveyance,, their father who was aged about 90 years, was not in sound health and was an enfeebled man not capable of exercising his free volition. They claimed to have presented their objection petition before the Sub -Registrar, Palladom, who, it is said, registered the document in spite of their objection. They claimed that the first defendant was in possession and enjoyment of the A schedule properties, that they obtained an order of temporary injunction and that after the disposal of the appeal against the said order in the District Court which, negatived the grant of the temporary injunction the first defendant trespassed into the A schedule properties and took forcible possession thereof. So they came forward with a suit for a declaration of their title and that of the second defendant to the A schedule properties, and for a consequential permanent injunction restraining the first defendant from interfering with their possession. They subsequently amended the plaint and asked for delivery of possession of the A schedule properties after they got an adverse order in the District Court against the interim order granting temporary injunction. It was alleged that the sale deed had been brought about fraudulently when Ramaswamy Gounder was unable to realise what he was doing. Particulars of the fraudulent conduct were specified in paragraph 8 of the plaint. There was an alternative plea that even assuming that the A schedule properties were family properties, the said Ramaswamy Gounder was entitled to only 1/4th share therein and that, therefore, the first defendant was not entitled to possession of the A schedule properties.

(2.) THE first defendant contended that the A schedule properties were purchased' exclusively by Ramaswamy Gounder out of his business in cotton and that they were his exclusive properties. According to the first defendant, the income -from B schedule properties was not utilised for the purchase of the A schedule properties and that Ramaswamy Gounder was in exclusive possession and enjoyment of the A schedule properties on his own and Ramaswamy Gounder was competent to alienate the A schedule properties. He denied taking Ramaswamy Gounder to his place. The further defence was that Ramaswamy Gounder being the manager of the family was -entitled to alienate the property and that the plaintiffs and the second defendant were not entitled to any interest therein or to any of the reliefs prayed for.

(3.) THE unsuccessful plaintiffs appealed and the learned First Additional Subordinate Judge of Coimbatore came to the conclusion that the A schedule properties were the exclusive properties of Ramaswamy Gounder and that he was competent to alienate those properties by virtue of his being the absolute owner thereof. The learned Subordinate Judge further held that only by way of a fraudulent scheme the conveyance in favour of the first defendant had been got up and that the said conveyance was a nominal one having been fraudulently obtained by the first defendant so as not to be binding on the plaintiffs and the second defendant. It may be mentioned herein that Ramaswamy Gounder was alive during the pendency of the, suit, which was disposed on 3rd October, 1970. The appeal itself was presented in the District Court on 2nd January, 1971 and Ramaswamy Gounder died in December, 1971, that is during the pendency of the appeal. Two of the points framed by the learned Subordinate Judge for determination were: