RASU KAVANDAR Vs. PONNUSAMY GOUNDER

JUDGEMENT

(1.) THE above Second Appeal has been filed by the plaintiff who succeeded before the trial court but failed at the hands of the first appellate court against the judgment and decree of the learned Subordinate Judge, Karur, dated 3.2.1983 in A.S. No. 120 of 1981 reversing the judgment and decree of the learned District Munsif, Kulithalai dated 24.7.1981 in O.S. No. 968 of 1979.

(2.) THE plaintiff has filed the suit for a declaration that the suit properties are the exclusive properties of the plaintiff and for a consequential relief of permanent injunction restraining the defendants, their men and agents from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit properties either by entering or trespassing into the same or obstructing the plaintiffs harvest of the Kambu crops on the lands. THE case of the plaintiff in the trial court was that the plaintiff and defendants 1 and 2 are brothers, that the third defendant is the wife of the 2nd defendant, that the suit properties originally belonged to one Sirumbayee, the mother of the plaintiff and defendants 1 and 2, and that the plaintiff was cultivating the lands under lease arrangement from his mother and subsequently she executed a registered settlement deed dated 19.12.1978 in favour of the plaintiff in respect of the suit properties out of natural love and affection towards him, and the plaintiff also accepted the same. THE plaintiff claims to be in possession and enjoyment of the properties and exclusively cultivating the same pursuant to the said settlement and the defendants 1 and 2 are divided brothers of the plaintiff and they are in possession and enjoyment of the ancestral properties. THE plaintiff and before him his mother are claimed to have paid the kist and also discharged certain debts borrowed on the security of the suit properties, end the service connection for the electric motor pump set installed in the well also stands in the name of Sirumbayee ammal, the mother, and since the defendants are threatening to meddle with the harvest of Kambu crops said to have been raised by the plaintiff and are ripe for harvest the suit came to the filed for the relief referred to above. THE 1st defendant filed a written statement which was adopted by the other defendants contending that the suit properties do not belong to Sirumbayee ammal, the Mother, that it is false to claim that the plaintiff was cultivating the suit properties as tenant under her, that Sirumbayee had no title or possession over the suit properties to execute the alleged settlement deed as settlement in favour of the plaintiff, that the said settlement cannot be true and valid and the father of the parties had ancestral properties and he was the Manager of the joint family, and he purchased the suit properties from out of the income from the ancestral properties in the name of his Life Sirumbayee Ammal benami, and that she had no independent means to purchase the suit properties, and the suit properties were blended along with the other joint family properties and were treated and enjoyed as joint family properties and the income from all the properties was upt into common hatchpot and was enjoyed by all the members of the family, and therefore all the members of the joint family were in joint possession and enjoyment of the same. THE further claim on behalf of the defendants was that there was a partition about 5 years prior to the suit in the family in which the members divided the family properties into 1/5 equal shares, that the plaintiff, defendants 1 and 2, their brother named Karuppannan and another son through the second wife of their father were each allotted one such share and since that time onwards they are in separate possession and enjoyment of their respective shares. In that partition it was also claimed that the suit properties were divided into two halves and the northern half was allotted to the plaintiff while the southern half was allotted to the 2nd defendant, and another item of property measuring 3 acres of land which was not the subject matter of the suit which also was in the name of their mother Sirumbayee was also divided into two halves and the northern half was allotted to the share of the 1st defendant while the southern half was allotted to Karuppannan their brother. It was also said to have been agreed at that time that the said land has to be irrigated from the well in S.R. No. 100/2 in the name of their father, and Sirumbayee was given a buffalo worth Rs. 3,000/ and also gold jewels weighing ten sovereigns, and that each son should measure 3 Kalams of Paddy and cash of Rs. 20/per year to their mother towards the maintenance and that she also agreed to receive the same. THE 2nd defendant claimed to be in possession and enjoyment of the southern half of the suit properties, and so the claim of the plaintiff of exclusive possession and enjoyment cannot be said to be correct. On that view the defendants contended that the plaintiff was not entitled to any relief either for declaration or injunction.

(3.) MR. AR.L. Sundaresan, learned counsel for the appellant contended that the first appellate court has committed a grave error in construing properly the ratio of the several judgments of this court and the Apex Court, relied upon by it, and has chosen to ignore the vital and relevant materials on record in disturbing the well merited judgment and decree of the trial court. Learned counsel further argued that the title of P.W. 2 to the property has not been considered from its proper perspective with reference to the claim of parties and the law governing the same and the well settled principles of law governing the normal presumption, that the properties standing in the name of a female member of the family belongs to her and cannot be considered to be a property of the joint family. As a matter of fact, it is seen that at the time of admission of the Second Appeal. This Court considered the issue relating to such normal presumption as laid down by some of Sic. (decisions) in respect of the properties standing in the name of a female member the pronouncement does arise for consideration. On the above claims learned counsel for the appellant would contend that the judgment of the first appellate court deserves to be set aside.