KUPPAYAMMAL AND ORS. Vs. PARVATHAMMAL AND ORS.

JUDGEMENT

(1.) Defendants 1 to 6, who had lost in the Courts below are the appellants, in this second appeal which arises out of a suit for partition and separate possession of 1/3 share in the suit properties instituted by the first respondent herein. The relationship between the parties has been set out in the "A" Schedule to the plaint and the correctness thereof is not in dispute. One Anicham Pillai Kandar, whose wife was Kuppayee, had three sons viz., Thandavan alias Doraiswami Kandar, Veerabadra Kandar and Appavu Kandar. The plaintiff in the suit, Parvathammal, is the wife of Veerabadra Kandar. Kuppayee wife of Thandavan alias Doraiswami Kandar and her children are defendants 1 to 6 in the suit. The wife of Appavu Kandar viz., Valli is the 7th defendant and her son is the 8th defendant in the suit. According to the case of the plaintiff, her husband Veerabadra Kandar, his brothers Thandavan alias Doraiswami Kandar and Appavu Kandar as well as the father Anicham Pillai Kandar constituted an undivided Hindu family and the suit properties belonged to that family. The "B" schedule properties which originally belonged to the joint family of Anicham Pillai Kandar and his sons were brought to sale in Court auction in execution of a decree in O.S. No. 1367 of 1925, District Munsif's Court, Namakkal. The decree therein was assigned in favour of one Shanmuga Kandar who was none other than the brother -in -law of Anicham Pillai Kandar and the father -in -law of Thandavan alias Doraiswami Kandar and the properties, according to the plaintiff, were purchased in the name of the said Shanmugha by Anicham Pillai Kandar out of his own funds since Anicham Pillai Kandar was a spond -thrift. Anicham Pillai Kandar died on 5th June, 1945. The husband of the plaintiff viz., Veerabadra Kandar died on 27th February, 1947. Kuppayee, wife of Anicham Pillai Kandar, died on 15th May, 1948 and Thandavan alias Doraiswami passed away on 24th October, 1973. After the death of Anicham Pillai Kandar in 1945, according to the plaintiff, the "B" Schedule property was transferred by Shanmuga in favour of his sister Kuppayee, wife of Anicham Pillai Kandar by means of a sale deed without any consideration. Those properties, according to the plaintiff, were family properties and treated and enjoyed as joint family properties throughout and even after the death of Kuppayee in 1948. In addition to the "B" schedule property, the family also possessed the 'C schedule property viz., the family house. The plaintiff claimed that "B" and "C" schedule properties belonged to the plaintiff and defendants in which the plaintiff, as the wife of Veerabadra Kandar, would be entitled to 1/3 share and defendants 1 to 6, as the heirs of Thandavan alias Doraiswami Kandar, will be entitled to 1/3 share and defendants 7 and 8 will be entitled to the other 1/3 share as the hairs of Appavu. A demand for partition made by the plaintiff was also not acceded to by the defendants and after the death of Thandava Kandar, defendants 1 to 6, his heirs, were also not desirous of bringing about a partition. Under these circumstances, the plaintiff instituted the suit with reference to her 1/3 share in the suit properties.

(2.) The heirs of the third son of Anicham Pillai Kandar viz., Appavu Kandar, who were defendants 7 and 8 in the suit, remained ex Parte. The suit was resisted only by the heirs of the first son of Anicham Pillai Kandar viz., Thandavan alias Doraiswami Kandar. According to them, the Court auction sale in execution of the decree in O.S. No. 1365 of 1925 in favour of Shanmugha Kandar is not a benami one and it is also further incorrect to state that Shanmugha Kandar transferred the "B" schedule property in the name of his own sister Karuppayee without consideration, The "B" schedule property, according to defendants 1 to 6, was purchased by Kuppayee with her own money and she was in possession and enjoyment of the same in her own right and it was never treated as joint family property. From 1948 when Kuppayee died, Thandava, the father of defendants 2 to 6 and the husband of the first defendant, was in possession and enjoyment of the suit properties openly in his own right and thereafter, defendants 2 to 6 were in possession of the same. It was therefore contended that Thandava Kandar had prescribed his right, interest and title over the suit properties by adverse possession and that he was never the manager of the joint family. As regards the "C" schedule, it was claimed that it exclusively belonged to Thandava Kandar and that it was not the joint family property. The husband of the plaintiff, viz., Veerabadra Kandar, according to the defendants 1 to 6, did not have any right in the suit properties and consequently, the plaintiff suing as a heir of the husband, did not have any rights in the properties. Defendants 1 to 6 prayed for the dismissal of the suit.

(3.) The learned District Munsif, Namakkal, who tried the suit held that the Court auction sale in O.S. No. 1367 of 1925 was a benami one as contended by the plaintiff and that it was brought into existence by the utilisation of the moneys of Anicham Pillai Kandar for the benefit of the joint family. The sale by Shanmugha in favour of Kuppayee was also held to be for the benefit of the joint family. The plea of prescriptive title put forth by defendants 1 to 6 was characterised as an after -thought and baseless one and negatived. In view of the aforesaid findings, it was held that the suit properties were the joint family properties belonging to Thandava Kandar and his two brothers and therefore, the plaintiff is entitled to 1/3 share in the properties as the only heir of the deceased husband Veerabadra Kandar Aggrieved by this, defendants 1 to 6 preferred an appeal in A.S. No. 379 of 1975. District Court, Salem. The learned District Judge held, on an analysis of the entire evidence both oral and documentary, that the property sold to Shanmugha Kandar in the Court -auction sale was only enjoyed by Anicham Pillai Kandar and his sons and that the objection raised by defendants 1 to 6 that the Court -auction sale cannot be questioned as benami is not sustainable. It was also further held that the "B" schedule property constituted the joint family properties of Anicham Pillai Kandar and his sons. The plea of acquisition of title by adverse possession set up by defendants 1 to 6 was held to be without substance. On these conclusions, the learned District Judge held that the plaintiff is entitled to the relief for partition and separate possession of her 1/3 share and in this view, he confirmed the judgment and decree of the trial Court and dismissed the appeal.