SIVAKUMAR Vs. V SOMASUNDARAM

JUDGEMENT

(1.) PLAINTIFFS 1 and 3 in O.S.No. 32 of 1978, Sub-Court, Chengalpattu, have preferred this appeal against the judgment and decree therein in so far as the Court below declined to grant the relief of partition and separate possession as regards items 1 to 8 of A schedule propertes. The appellants and the third respondent are the sons of the first respondent and all of them constituted members of a joint Hindu family, which owned the properties described in Schedules A to C to the plaint. The first appellant was born on 15th May, 1958, while the date of birth of the second appellant is 5th October, 1972. According to their case, their father, the first respondent herein, for more than ten years prior to the institution of the suit, was indifferent to the affairs of the family and had been leading a wayward and fast life. The appellants claimed that they had been cultivating the landed properties with the assistance of their mother and by living in the ancestral house. The further case of the appellants was that surcharge proceedings were initiated against the first respondent by the Deputy Registrar of Co-operative Societies for recovery of a sum of Rs.24,000 and odd on the ground that the fist respondent fraudulently retained amounts collected from the members of the Mamandoor Co-operative Society of which he was the President and misappropriated the moneys so collected and that pursuant to a decree, the properties belonging to the joint family were sold for the realisation of the amounts recoverable from the first respondent. The appellants stated that the debt alleged to be due by the first respondent to the Mamandoor Co-operative Society is an avyavaharika debt and they are not bound either by the decree or by the sale of the properties pursuant to the decree. The appellants further stated that provision for the marriage of their sister has also to be made from out of the joint family properties. The appellants further claimed that though they called upon the first respondent to amicably divide the family properties and give the appellants and the third respondent their shares therein, the first respondent evaded. It was under these circumstances, that the appellants and the third respondent instituted O.S.No.32 of 1978 praying for partition and separate possession of their three-fourth share in A to C schedule properties and for mesne profits and other incidental reliefs.

(2.) THE first respondent, the father of the appellants and the third respondent, remained ex parte. THE suit was resisted by the second respondent herein on the ground that when the first respondent was the President of the Mamandoor Multipurpose Agricultural Credit Society, he owed large amounts to the second respondent, which led to an enquiry under S.65 of the Tamil Nadu Co-operative Societies Act, 1961 by a Special Officer duly appointed for that purpose. THE further case of the second respondent was that by a special resolution dated 30t November, 1965 it was decided to take action against the first respondent and he was summoned to appear for an enquiry. However, the first respondent, despite receipt of notices regarding the enquiry, did not appear and an award was passed on 2 9th July, 1966 for a sum of Rs.24,016.27. But the properties were attached even before the passing of the award, on 17th December, 1965. Despite the award, the first respondent did not pay any amount and hence the properties were brought to sale in execution. THE sale was adjourned from time to time and stood posted to 20th Dune, 1973. A day prior to that, the wife of the first respondent claimed the attached properties as belonging to her. That application was, however, returned on the ground of non-compliance with rules and the sale was adjourned to 25th June, 1973. On that day, the sale was held and the second respondent bid at the auction and purchased items 1 to 18 of A schedule and one fourth share in item 19 of A schedule for Rs.37,300. Again, on 19th July, 1973, the first respondent, through his wife, presented a petition under R.76 of the Rules framed under the Tamil Nadu Co-operative Societies Act, 1961 which was dismissed on 13th August, 1973. Meanwhile, the sale in favour of the second respondent, was confirmed on 25th July, 1973. On 24th August, 1973, the wife of the first respondent instituted O.S.629 of 1973, District Munsiff Court, Chengal-pattu for a declaration that the suit properties and other properties belong to her under a will executed by Vedagiri Mudaliar, the father of the first respondent. THE plaintiff in that suit also obtained an injunction. That suit was also dismissed on 30th March, 1977. Against that, an appeal was preferred in A.S.No.55 of 1977. Sub-court Chengalpattu, and that appeal eventually stood dismissed on 31st December, 1977. Meanwhile, the second respondent applied for delivery of possession of the properties purchased and delivery was ordered on 16th April, 1977 and delivery was also effected through Court on 17th April, 1977 which was recorded on 31st December, 1977. THE second respondent thus claimed to be in possession of the properties purchased. THE claim of the appellants and the third respondent that the first respondent was leading a wayward life and not taking any interest in the affairs of the family was denied. THE debt was binding on the appellants and the third respondent as it was not an avayavaharika debt, according to the second espondent. Claiming that the second respondent is a bona fide purchaser for value, who had taken delivery of possession of the properties also, the second respondent characterised the suit for partition as yet another step in the dilatory tactics adopted by the first respondent. THE cultivation of the properties by the appellants and the third respondent was also denied. THE second respondent disputed the cause of action for the institution of the suit and prayed for its dismissal.

(3.) THE learned counsel for the appellants first contended that a consideration of the totality of the circumstances right from the inception clearly made out the criminal intention of the first respondent to misappropriate and, therefore, the debt in question could only be avyavaharika, not binding on the appellants and the third resppndent. In this connection the learned counsel submitted relying on Ex.A1, that the first respondent lent money in the names of dead persons, to persons whose whereabouts were not known or traceable, to close relations etc., and that established the criminal intention even at the inception. It was also further pointed out that the amounts collected by the first respondent and not credited to the account of the Society and in respect of which an award was passed against him were also of the same character so that they could not be said to be binding upon the appellants and the third respondent justifying the sale of their interest also in the joint family properties. On the other hand, the learned counsel for the second respondent contended that there is no evidence of any criminal intention on the part of the first respondent even at the inception and that the award passed by the Deputy Registrar of Co-operative Societies, Chengalpattu in proceedings against the first respondent cannot be looked into for the purpose of substantiating any criminal intention on the part of the first respondent. Reliance in this connection was placed by the learned counsel for the second respondent upon the decision of the Supreme Court in S.M. Jakati v. S.M. Borkar, 1959 S.C.3. 719: (1959) 2 M.L.J. (S.C.) 21: (1959) 2 An W.R. (S.C.) 21: 1959. S.C.R. 1384: A.I.R. 1959 S.C.: 282.