P S MUTHUSWAMY KOUNDER Vs. P S RAMALINGAM

JUDGEMENT

(1.) THESE two appeals may be dealt with together since they arise out of a common suit, one filed by the first defendant, the State bank of India, Thiruppapuliyur Branch in O. S. No. 1612 of 1978 (S. A. No. 953 of 1984) and the other filed by the second defendant in the very suit (S. A. No. 1666 of 1983), the defendants having lost their claims even before the First appellate Court. To appreciate the relevant aspects of the claim projected now before this court, certain relevant facts alon may be adverted to. The state bank of India, Thiruppapuliyur Branch, obtained a decree for Rs. 96,036. 44 in o. S. No. 188 of 1976 on the file of the Subordinate Court , Cuddalore, in enforcement of an equitable mortgage created by the second defendant/appellant in S. A. No. 1666 of 1983, borrowing large sums of money. When execution proceedings were about to be initiated, the brothers of the appellant in S. A. No. 1666 of 1983, who are the sons of Sambasiva Gounder, filed the present suit o. S. No. 1612 of 1978, contending that the properties are joint family properties and the plaintiff in the present suit are entitled to two third share in the suit properties and therefore, the first defendant Bank in the present suit is not entitled to execute the decree in respect of the plaintiffs two third share and consequently, sought for permanent injunction. The first defendant Bank contested the suit claim claiming that there was a partition between the plaintiffs and the second defendant on 25. 2. 1972 that the said partition was a complete one and it related to all the members and properties of the family, and the suit properties were purchased by the second defendant on 25. 7. 1963 for rs. 20,000 exclusively for his benefit and those properties had nothing to do with the joint family of the plaintiffs and the second defendant and consequently, the suit, which was said to have been filed at the instigation of the second defendant only to protract the execution proceedings, cannot be countenanced and no relief need be granted. The second defendant appears to have filed a written statement contending that the suit was not maintainable and it was false to claim that the suit properties are the joint family properties of the plaintiffs and the second defendant and that the second defendant alone purchased the suit property for valid consideration. The claim of the plaintiffs that the plaintiffs and the defendants are sharing the lease amount in respect of the suit properties, which were said to be in the possession of the lessee, was also denied. On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. The learned District Munsiff, Cuddalore, by his Judgment and decree dated 18. 11. 1976 held that the suit properties are joint family properties of the plaintiffs and the second defendant and decreed the suit claim for permanent injunction in respect of their two third share being proceeded against pursuant to the decree obtained against the second defendant. Aggrieved the first defendant Bank filed A. S. No. 81 of 1982 and the second defendant filed A. S. No. 35 of 1982 before the District Court, South Arcot at Cuddalore. Those appeals, which were originally entertained on the file of the District court as A. S. Nos. 81 and 85 of 1982, came to be entertained on being transmitted to the Subordinate Court, Cuddalore, as A. S. Nos. 69 and 73 of 1982 and came to be disposed of by a common judgment dated 30. 9. 1982 whereunder, the learned First Appellate Judge has concurred with the findings of the learned trial Judge and dismissed the appeals. Hence the above second appeals, S. A. No. 953 of 1984 by the Bank and S. A. No. 1666 of 1983 by the second defendant.

(2.) IN the second appeal filed by the second defendant the following substantial question of law was raised. Whether the courts below are right in holding that the burden is on the second defendant to establish that the sale under Ex-B-1 is out of his self-earnings, when the document stands in the name of the junior co-parcener" IN the second appeal filed by the first defendant Bank, the following substantial questions of law were framed: 1. Are the Courts below right in law in erroneously placing the burden on the 2nd defendant in whose name the properties stand to prove that the properties are his self- acquired properties" 2. Have not the courts below erred in law in admitting ex-A-5 in evidence. IN any event, are the Courts below in law entitled to look into the document for collateral purpose when the document itself is inadmissible in law"

(3.) IN view of the endorsement on the return of notice that the second defendant, who is respondent No. 3 in S. A. No. 953 of 1984, and appellant in S. A. No. 1666 of 1983 died as early as in 1989 and in the absence of any legal representatives, brought on record to prosecute the matter S. A. No. 1666 of 1983, filed by him, shall stand dismissed for non-prosecution and as having become abated. No costs. .