9911796707
TMI Blog2021 (6) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... led challenging the Division Bench judgment dated 23.11.2011 of Madras High Court dismissing the A.S. No.281 of 2000 and A.S. No.332 of 1999 filed by the appellants respectively. The parties shall be referred to as described in O.S.No.1101 of 1987 (S.R. Somasundaram vs. S.K. Kumarasamy). The appellant, R. Janakiammal in C.A.No.1537 of 2016 was defendant No.7 in O.S.No.1101 of 1987 whereas S.R. Somasundaram, appellant in C.A.No.1538 of 2016 was the plaintiff in O.S.No.1101 of 1987. Janakiammal is the mother of Somasundaram. Relevant facts and events necessary to decide these two appeals are: 2. The parties came from Pattanam, Coimbatore District, Tamil Nadu. We may notice the Genealogical Tree of the family which is to the following effect: 3. The plaintiff, S.R. Somasundaram and his mother, Janakiammal who are the appellants in these two appeals belong to branch of Rangasamy Gounder whereas other two branches are of S.K. Kumarasamy,D-1 and S.K. Chinnasamy,D-4. Three brothers with their father A.V. Kandasamy Gounder were residing as a joint family in ancestral house at Sadapalayam Hemlet, Karumathampatti Village, Palladam Taluka, District Coimbatore. Rangasamy and others received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Coimbatore in the year 1979. 6. In Coimbatore one Vasudeva Industries Ltd., which was in liquidation since 1967 was taken on lease from official liquidator of Madras High Court by one Shroff, who along with defendant No.4, S.K. Chinnasamy formed a partnership firm to run Vasudeva Industries Ltd. Defendant No.1, S.K. Kumarasamy was appointed as General Manager to look after the affairs of Vasudeva Industries Limited. An application was filed in the year 1981 in Company Petition No.39 of 1956. Defendant No.1, S.K. Kumarasamy filed an affidavit in support of Company Application No.320 of 1981 praying that liquidation proceedings be closed. On 30.04.1981, the High Court of Madras passed order directing convening of a meeting of the creditors. In the meeting of creditors a draft scheme submitted was approved on 09.06.1981, Madras High Court passed an order on 22.01.1982 allowed the application filed by defendant No.1, permanently stayed the liquidation proceedings and permitted running of Vasudeva Industries Ltd. by the Board of Directors. On 03.02.1982 a Resolution was passed to bring the mills under the control of the Board of Directors, including the plaintiff, defendant Nos.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the suit;" 8. The plaint Schedule 'B' included ancestral land in Palladam and Samalapuram villages with house at Sadapalayam Helmet. Schedule 'C' included various immovable properties and included residential building, shares in M/s. Swamy and Swamy Plantations (P) Ltd. Coonoor, and shares of M/s. Vasudeva Industries Ltd. were also mentioned as item Nos. 10 and 11 of Scheduled 'C'. In the above suit only defendant Nos.1 to 3 of the suit, namely, S.K. Kumarasamy, Sundarambal, wife of S.K. Kumarasamy and minor Kandavadivel son of S.K. Kumarasamy filed their written statements. In the written statement, it was pleaded that no doubt some properties have been acquired jointly in the names of the defendant Nos.1, 3, 4,9 and 10, but they must be deemed to be only cosharers in respect of those properties. It was pleaded that three branches were allotted shares in 1960 partition and plaint case that parties continued to live jointly was denied. 9. In O.S.No.37 of 1984, an application under Order XXIII Rule 3 was filed on 06.08.1984 by the plaintiff containing signatures of plaintiff and defendants. In the application under Order XXIII Rule 3 in Schedule ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by defendant Nos.1 to 3. Defendant No.10 also filed written statement supporting the case of defendant No.1. Reply was filed by plaintiff, Somasundaram to the written statements filed by defendant Nos. 1 to 3. 12. Five witnesses were examined on behalf of the plaintiff. Somasundaram, plaintiff appeared as PW.1. The plaintiff filed Exhs. A-1 to A-55. On the side of defendants, four witnesses were examined. Janakiammal appeared as DW.2 whereas S.K. Kumarasamy appeared as DW.1. Exh.B-1 to B-104 were marked on behalf of the defendants. Exh. X-I to X-27 have been marked through witnesses. 13. The trial court framed five issues and six additional issues. One of the additional issues was that whether the suit is not maintainable under Order XXIII Rule 3A of the CPC. The trial court vide its judgment dated 30.09.1997 dismissed the suit. The trial court upheld the plea of defendant Nos.1 to 3 that O.S.No.1101 of 1987 was barred by Order XXIII Rule 3A CPC. The trial court also upheld the partition deed dated 07.11.1960 and the agreement dated 08.03.1981. The trial court held that after the year 1960 the entire family was not living as joint family and all the three branches are co-owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the representation of defendant No.1 and that the plaintiff and defendant having given personal guarantee for loan obtained for Vasudeva Industries Ltd., to save family properties from claim of the Bank, the properties be kept only in the name of defendant No.1 and defendant No.4 but the right of the plaintiff and defendants will be held intact. 16. The High Court held that it has not been proved that any personal guarantee was given by the plaintiff, the very ground pleaded by the plaintiff is knocked out. The High Court further held that suit was barred by Order XXIII Rule 3A CPC and only remedy available was to question the compromise decree in the same suit. The High Court dismissed both the appeals. Aggrieved by the judgment of the High Court, these two appeals have been filed. 17. We have heard Shri V. Giri and Shri Gaurav Agrawal, learned senior counsel for the appellants. Shri Kapil Sibal, learned senior counsel has appeared for contesting respondents. Shri S. Nagamuthu, learned senior counsel has appeared for defendant No.11 and other defendants. 18. Shri V.Giri, learned senior counsel appearing for R. Janakiammal submits that the compromise decree dated 06.08.1984 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint case of suit No.1101 of 1987. 22. The partition agreement dated 08.03.1981 as pleaded by D-1 was only an imaginary story. No such agreement was filed in the court nor the same was pleaded in a written statement filed by D.1-3 in O.S. No.37 of 1984. Despite the agreement dated 08.03.1981 not being produced in the Court, the trial court in its judgment dated 30.09.1997 had erroneously accepted the factum of partition by agreement dated 08.03.1981 and accepted the case of defendant No.1 that compromise decree dated 06.08.1984 was to give effect to the partition dated 08.03.1981. 23. No partition was affected in the year 1981 and the family remained as a joint family. In O.S. No.37 of 1984, the house property at Tatabad which was in the name of D-1, was not included, which property was purchased by joint family fund and the three branches had share in house at Tatabad which was mentioned at item No.10 in Schedule C of Suit No.1101 of 1987. 24. The pleading of defendant No.1 that under the agreement dated 08.03.1981, the plaintiff was to pay Rs. Seven Lakhs to D-4 and D-1 was to pay Rs. Four Lakhs to D-4 were all imaginary stories set up by D-1. Neither any agreement took place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The consent decree dated 06.08.1984 was never acted upon. The mill could not be revived and closed down in 1987. The defendant No.1 continued to manage the affairs of the mill till 1989 when he resigned. 28. Shri Kapil Sibal refuting the submissions of the appellants contends that partition dated 07.11.1960 between three branches was given effect to. Income Tax Returns were filed by three branches on the basis of 1960 partition. There was an arrangement made in 1981 under which the D-1 was to take properties at Coonoor, D-4 was to take properties at Somnur whereas plaintiff and defendant No.1 decided to take Vasudeva Textiles Mills. The Suit No.37 of 1984 was filed by the son of D-4 at his instance. 29. Shri Sibal submits that the Suit No.37 of 1984 has been decided on compromise where all the defendants have signed the compromise application including Janakiammal as well as Somasundaram. The Vakalatnama on behalf of defendant Nos.7 to 11 was filed by Advocate Thirumalnesan who represented defendants 8 to 11. It is submitted that plaintiff and D-10 were all educated persons and having signed the compromise application, it is not open to them to contend that they signed the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 to 13 was not filed. He submits that certified copy of Vakalatnama filed by advocate Thirumalnesan on behalf of defendant Nos.8 to 13 has also not been brought on record and according to the papers submitted by D-1, the Vakalatnama and the documents have been destroyed. How can D-1 say that the Vakalatnama has been destroyed. 35. Shri Giri submits that the house at Tatabad which was included as Item No.10 in Schedule C in Suit No.1101 of 1987 was purchased from a joint family fund. Although the house was taken in auction by D-1 but the consideration for house was not paid by D-1 individually, rather the amount was obtained from company Swamy and Swamy Plantations, which is a private limited company in which D-1, D-4 and D-10 had shares. The Branch of Rangasamy in Swamy and Swamy Plantations had about more than onethird share. The Tatabad house having been obtained from a private company which was a family business, all the branches shall have shares in the house. The Suit No.37 of 1984 having not included the Tatabad house, the suit for partition of house being Suit No.1101 of 1987 was fully maintainable and both the Courts erred in not granting share to the plaintiff in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this rule;" 40. By the same amendment Act No.104 of 1976, a new Rule, i.e., Rule 3A was added providing "3A. Bar to suit. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 41. Determination of disputes between persons and bodies is regulated by law. The legislative policy of all legislatures is to provide a mechanism for determination of dispute so that dispute may come to an end and peace in society be restored. Legislative policy also aims for giving finality of the litigation, simultaneously providing higher forum of appeal/revision to vend the grievances of an aggrieved party. Rule 3A which has been added by above amendment provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. At the same time, by adding the proviso in Rule 3, it is provided that when there is a dispute as to whether an adjustment or satisfaction has been arrived at, the same shall be decided by the Court which recorded the compromise. Rule 3 of Order XXIII provided that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in which he would have been if the representations made had been true. Exception.-If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation.-A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable." 44. A conjoint reading of Sections 10, 13 and 14 indicates that when consent is obtained by coercion, undue influence, fraud, misrepresentation or mistake, such consent is not free consent and the contract becomes voidable at the option of the party whose consent was caused due to coercion, fraud or misrepresentation. An agreement, which is void or voidable under the Indian Contract Act, shall not be deemed to be lawful as is provided by Explanation to Rule 3 of Order XXIII. 45. We need to examine the grounds on which the compromise decree dated 06.08.1984 was sought to be impeached by pleadings in Suit No. 1101 of 1987. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the compromise was not free consent. The compromise, thus, become voidable at the instance of the plaintiff. 48. Whether the bar under Rule 3A of Order XXIII shall be attracted in the facts of the present case as held by the Courts below is the question to be answered by us. Rule 3A bars the suit to set aside the decree on the ground that compromise on which decree was passed was not lawful. As noted above, the word "lawful" has been used in Rule 3 and in the Explanation of Rule 3 states that "an agreement or compromise which is void or voidable under the Indian Contract Act,1872 (9 of 1872), shall not be deemed to be lawful...................;" 49. Thus, an agreement or compromise which is clearly void or voidable shall not be deemed to be lawful and the bar under Rule 3A shall be attracted if compromise on the basis of which decree was passed was void or voidable. 50. Order XXIII Rule 3 as well as Rule 3A came for consideration before this Court in large number of cases and we need to refer to few of them to find out the ratio of judgments of this Court in context of Rule 3 and Rule 3A. In Banwari Lal Vs. Chando Devi (Smt.) Though LRs. And Anr., (1993) 1 SCC 581, this Court co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." 7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying: "3A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 51. The next judgment to be noted is Pushpa Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enkataswamy and Ors., (2014) 15 SCC 471 in which provisions of Order XXIII Rule 3 and Rule 3A were again considered. After extracting the aforesaid provisions, following was held by this Court in paragraph 11: " 11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all. 18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court." 55. The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Coimbatore was included in Item No.10 of Schedule 'B' of properties to the following effect: "Item No.X In Coimbatore Registration on District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built up residential building." 60. The above residential property was neither included in O.S.No.37 of 1984 nor part of compromise decree dated 06.08.1984. The plaintiff's prayer to declare the decree passed in O.S.37 of 1984 as unenforceable shall not preclude the consideration of a property which was not part of the decree. The appellants' case for claiming share in the residential property at Tatabad, Alagappa Chettiar Road, Coimbatore, thus, needs to be considered in these appeals. 61. We may first notice pleadings regarding the case of the plaintiff and defendant No.1 with regard to above mentioned house property as reflected in O.S. No.1101 of 1987. 62. In paragraph 6(e) of the plaint, following has been pleaded by the plaintiff: "6(e) In 1978 a palatial bungalow was purchased in Tatabad, Coimbatore. This is set out and described as Item No.10 of Schedule 'B'. The acquisition of this pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.08.1997, defendant No.2 states: "On 12.8.1997 the witness was sworn and re-examined. The reason for not returning the amount to Swamy & Sawmy Plantation Company from which it was borrowed for the purchase of the house in Tatabad, because there was credit balance in my name in the said company." 66. Evidence on record, thus, indicates that Tatabad house property was purchased in the name of defendant No.1 and the consideration for purchase was paid from Swamy and Swamy Plantations Co. having its Directors and shareholders only the family members of all the branches. In his cross-examination defendant No.2 has stated: "We started Co. by name Swamy and Swamy Plantations in 1974 in which members of all the three branches of the family were the shareholders." 67. The details of the shareholders of the Swamy and Swamy Plantations (P) Ltd., Coonoor, were mentioned in O.S.No.37 of 1984 as Item No.10 of Schedule 'C' which is to the following effect: "Item No.10 Details of shares in M/s. Swami and Swami Plantations (P) Ltd., Coonoor. S.No. Name No. of Shares Total Value 1. S.K. Kumaraswamy 920 Rs.92,000.00 2. S.K. Chinnasamy 440 Rs.44,000.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take property at Coonoor and Vedapathi village and Chinnasamy branch decided to take property at Somnur. Defendant No.1 has pleaded that under the agreement dated 08.03.1981, the plaintiff had to pay Rs.7 lacs to defendant No.4 and defendant No.1 had to pay Rs.4 lacs to defendant No.4 to equalise the valuation by partition as was agreed on 08.03.1981. Shri Giri submits that DW.-1 himself came with case that partition had taken place on 08.03.1983 and compromise decree was nothing but implementation of the said agreement. Shri Giri submits that when defendant No.1 himself states about the partition in the year 1981, the partition presupposes the joint family and had the three branches separated from 07.11.1960, there was no question of again effecting partition in the year 1981. 72. One of the points for consideration before us is that as to whether at the time when Tatabad house was acquired by defendant No.1 whether all three branches were part of joint family or all the three branches after partition dated 07.11.1960 continued to be separate from each other. 73. The sheet anchor of the defendant No.1 is that three branches of family were not joint as it was partitioned by parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (34) which is to the following effect:- " 3(34). "person" includes any company, family firm, society or association of individuals, whether incorporated or not or any private trust or public trust." 75. Section 5 of the Act provide for ceiling area. According to subsection (1)(a) of Section 5 the ceiling area in the case of every person and in the case of every family consisting of not more than five members was 30 standard acres. Figure of 30 standard acres was subsequently reduced to 15 standard acres by Tamil Nadu Act No. 37 of 1972. Section 5(1)(b) further provided that ceiling area in the case of every family consisting of more than five members shall be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five. In event, the ceiling area is determined treating the Hindu Undivided Family, joint family consisting of three brothers, the ceiling area shall be 30 standard acres by which 5 acres additional for every member of the family in excess of five. The land which was possessed by the three brothers in the year 1960 was more than 86.52 acres, which extent was received by the three brothers in 1953 partition. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing in paragraphs 341, 342 and 343:- " 341. Who may reunite,'- A reunion in estate properly so called, can only take place between persons who were parties to the original partition'. It would appear from this that a reunion can take place between any persons who were parties to the original partition. Only males can reunite. 342. Effect of reunion,-The effect of a reunion is to remit the reunited members to their former status as members of a joint Hindu family. 343. Intention necessary to constitute reunion: To constitute a reunion, there must be an intention of the parties to reunite in estate and interest. In Bhagwan Dayal v. Reoti Devi, the Supreme Court pointed out that it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status. Such an agreement may be express or may be implied by the conduct of the parties. The conduct must be of an incontrovertible character and the burden lies heavily on the party who assets reunion." 79. The Privy Council in Palani Ammal Vs. Muthuvenkatacharla Moniagar and Ors., AIR 1925 PC 49 has held that if a joint Hindu family se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the partition. Madras High Court in paragraph 5 stated:- " 5. ..........................But if a general partition between all the members takes place, reunion is the only means by which the joint status can be reestablished. Mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established. The rule is, if I may say so with respect, correctly stated by the Patna High Court, in Pan Kuer v. Ram Narain Chowdhary, A.I.R. 1929 Pat. 353 where the learned Judge observes that: To establish it, (reunion), it is necessary to show not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. 81. The High Court held that the brothers, who had divided, lived and traded together, the case of the reunion was accepted. In paragraph 17, following was laid down:- " 17. The question then is, whether this finding is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16) published by Government of highness the Maharaja of Mysore pp 702-703; English version J.R. Gharpura (1952) Part III pp 667-670). He who being once separated dwells again through affection with his father brought or paternal uncle is termed reunited. When two coparceners have again become reunited through affection, they shall mutually participate in each others properties. The view expressed by Devanna Bhatta, the author of Smriti-Chandrika on the text of Brihaspati is- Association not necessarily being by co-residence, the association is expressed to be through wealth; so by way of removing the distinguishing factor of that, it should be understood that the re-association of the separated members shall be to the extent of pooling together(all) the wealth etc., as before, and not merely by a co-residence only. Mitakshra on Yaj.II 138-139, which lay down special rule of inheritance at a partition among reunited members explains the effect of reunion as follows: Effects which had been divided and which are again mixed together are termed reunited. He, to whom such appertain, is a reunited parcener. The aforesaid provisions have been the subject matter of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, when disputed must be proved as any disputed question of fact and the circumstances that all the reuniting members have not brought back their properties to form the common-stock, may support the plea taken by any concerned party that there was no reunion. However, if reunion is admitted by all the parties to the reunion or it is proved, the share of the properties of reunited members got at an earlier partition and in their possession at the time of reunion becomes the properties of the joint family, notwithstanding the fact that some of them have failed to throw those properties into the common hotch pot, whether with or without the knowledge or consent of each other. It is a different aspect if reunion itself is not admitted by the persons who are parties to a reunion and it is not proved by the party pleading reunion, in which event there would be no reunion at all." 83. We may now notice the judgment of this Court dealing with reunion in a Hindu Undivided Family. In Bhagwan Dayal Vs. Reoti Devi, AIR 1962 SC 287, this Court examined the principles of Hindu Law and principles of Hindu Joint Family. In paragraph 16, it was held that the general principle is that every Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family." As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney-General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is a decision of a Division Bench of the Madras High Court. It was pointed out there that "mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established". The said proposition is unexceptionable, and indeed that is the well settled law. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at about in 1964, which clearly indicate that intention of all the brothers was to live jointly and continue as Joint Hindu Family. After partition dated 07.11.1960, three branches have purchased several immovable properties together, details of which are as follows:- i) Sale deed dated 09.06.1962 filed as exhibit A-42 in favour of (a) K.Rangasamy, (b) S.K.Kumarasamy and (c) S.K.Chinmasamy of the land to the extent of 5.6 acres in Karumathampaty village. ii) Sale deed dated 16.10.1963 which has been filed as exhibit A-43. By sale deed, property was purchased for construction of house only which fact was stated in the sale deed itself. The sale deed was in the name of three brothers (a) K.Rangasamy, (b) S.K.Kumarasamy and (c) S.K.Chinmasamy. iii) On 14.09.1972, by three sale deeds which were filed as exhibit A-41, B-10 and B-11, huge property situated at Coonoor namely High Field estate was purchased in the name of S.K.Kumarasamy, S.R.Somasundaram(minor in the guardianship of his mother Mrs. Janakiammal), S.R.Shammugha velcyutham in which estate the family carried business. 86. The three branches continued joint business by establishing firms and companies which was carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the 4th defendant the compromise was arrived at, an early date in a smooth manner and the decree was passed in terms thereof. The decree has also been registered. At the terms of the agreement were being incorporated in the compromise the parties were advised that it was not necessary to refer to the agreement dated 08.03.1981 in the compromise." 88. The case of partition of all properties by agreement dated 08.03.1981 standing in name of different branches including the branch of Rangasamy was the case of defendant No.1 who was the eldest member of the family and has been denying the jointness of the family after 07.11.1960. D-1 S.K. Chinnasamy appeared in witness box as DW-2. In his cross-examination dated 10.04.1997, DW-2 stated:- " In March, 1981, we divided the common properties. On 08.03.1981 we reduced the same in to a written agreement, written on stamp paper, and we signed the same. Myself, 4th, 7th and 10th defendants and the plaintiff signed in it. Three copies were taken. The same has not been filed. All of us had signed in all the three copies. We took possession of our respective shares in the properties. After 08.03.1981 the common properties were not in joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied by the plaintiff. The plaintiff's case was that at no point of time, there was any agreement entered between parties in the year 1981 to divide the properties standing in the names of three branches. The agreement dated 08.03.1981 was not filed by D-1 in the evidence. The agreement was not filed nor exhibited by the defendant, D-1. 92. In the written statement which was filed by D-1 in O.S. No.37 of 1984, no plea was taken regarding agreement dated 08.03.1981. It was for the first time in the written statement filed by D-1 in suit No.1101 of 1987 that mention of agreement dated 08.03.1981 was made. Neither any agreement dated 08.03.1981 was filed or proved nor there is any other evidence on record to prove the division of properties between three branches in the year 1981. 93. It is the case of the defendant No.1 that the compromise decree dated 06.08.1984 is nothing but implementation of agreement dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was partition of all properties standing in the names of three branches and allocated to different branches on 08.03.1981, which has been subsequently implemented by consent decree dated 06.08.1984. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, it is proved that family was joint at least till then, i.e., 08.03.1981 or 06.08.1984. Thus, in the year 1979, when the Tatabad residential property was acquired, the three branches were joint. 99. The Tatabad residential property was for the benefit of all the three branches which is further proved from the fact that the consideration for the said amount was not paid by DW-1 from his separate account or in cash. The amount was drawn from the private limited company Swamy and Swamy Plantation Private Limited in which all the three branches were shareholders and Directors. The Swamy and Swamy Plantation Company had not purchased the residential property at Tatabad for the company. The Swamy and Swamy plantation private company is not the owner of the residential property and the residential property at Tatabad is a joint family property for the benefit of all the three branches. 100. We thus conclude that all three branches have equal share in the Tatabad residential property, i.e., Item No.X of Schedule 'B' of plaint in Original Suit No.1101 of 1987. This residential property being not a part of O.S.No.37 of 1984, there is no bar in seeking partition of the said prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
