TMI Blog2020 (6) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... re, we answer point No. 1 framed in this appeal to the effect that it was established by the appellants/plaintiffs that their grandfather Chinnamma Naidu had adequately contributed for purchasing the property covered under Ex. A1, sale deed dated 05.04.1911 along with his elder brother Govindasamy Naidu. Whether Govindasamy Naidu was holding the share of his brother Chinnamma Naidu in his fiduciary capacity? - Whether the suit transaction is hit by the provisions of Benami Transaction Act? - HELD THAT:- Having regard to the fact that Ex. A1 in this case emanated during the year 1911 and the custom, tradition and belief practiced in those days, we are of the view that Chinnamma Naidu reposed absolute faith and trust towards his elder brother Govindasamy Naidu and Govindasamy Naidu, true to such faith and confidence reposed on him, had held the suit property in a fiduciary capacity on behalf of his brother Chinnama Naidu. Such a relationship falls within the exception to Section 4 of the Prohibition of Benami Property Transaction Act, 1988 (now Section 2(9)(ii)(iv) of The Benami Transactions (Prohibition) Amendment Act, 2016. It is evident from Section 4 of the Act that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y remains undivided. Therefore, we hold that the claim of the appellants for partition and separate possession is not hit by the provisions of Limitation Act and we answer Point No. 4 also in favour of the appellants/plaintiffs. Whether the present suit for partition is not maintainable without a prayer for declaration of title? - HELD THAT:- In view of our conclusion with respect to point No. 1 holding that Chinnamma Naidu has jointly contributed for purchase of half share of the property covered under Ex. A1 along with his elder brother Govindasamy Naidu, we have to necessarily answer this question also in favour of the plaintiffs. Even otherwise, under Ex. A10, Patta, the name of Govindasamy Naidu and Chinnamma Naidu were mentioned as joint owners of the property in question. That apart, Ex. A11, series of Kist receipt would indicate that Chinnamma Naidu has individually paid kist in respect of his share of the property covered under Ex. A1. As long as the revenue records stood mutated in the name of grandfather of the plaintiffs Chinnama Naidu and the plea of the plaintiffs that they were in joint possession of the suit property along with the descendants of Govindasamy Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. They have come forward with this appeal, aggrieved by the Judgment and Decree dated 21.11.2017 passed by the said court dismissing the suit filed by them for partition and separate possession of the plaint schedule mentioned property and for other reliefs. 2. For the sake of convenience, the parties are referred to as 'Plaintiffs' and 'defendants' as they are arrayed before the trial court. 3. One Guruvappa Naidu had two sons and they are Govindasamy Naidu and Chinnama Naidu. Govindasamy Naidu had a son by name Annasamy. Chinnama Naidu had two sons and they are Ponnusamy, tenth defendant and Ramachandran. Ponnusamy, tenth defendant died during the pendency of the suit and therefore, his legal heirs were impleaded as D13 to D15 in the suit. The Plaintiffs are the legal heirs of Ramachandran. 4. Annasamy, Son of Govindasamy Naidu died leaving behind his legal heirs by name Dhanalakshmi, Kamalam (D-1), Duraisamy (D-2), A. Rajagopal (D-3), A. Dhamodaraswamy. Among the legal heirs of Annasamy, Dhanalakshmi and Dhamodaraswamy died even before the institution of the suit and therefore they are not arrayed as parties to the suit. The first defendant Kamalam die ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts of ownership equally along with his elder brother. The said Govindasamy Naidu was holding a fiduciary position in relation to his younger brother Chinnasamy Naidu. It is the case of the plaintiffs that such a fiduciary capacity continued till the death of Govindasamy Naidu in the year 1948. In fact, few years after the sale deed dated 05.04.1911, the said two brothers along with the co-sharer namely Appa Naidu have orally divided the property covered under the sale deed dated 05.04.1911 by and under which the half share on the eastern side on the North to South direction in S.F. Nos. 61, 64 and 67 was allotted to Appa Naidu while remaining extent on those three survey fields measuring 10.44 acres was jointly allotted to Govindasamy Naidu and Chinnama Naidu. 7. The Plaint proceeds to refer to the registered mortgage of the property purchased by Govindasamy Naidu and Chinnama Naidu on 05.04.1911 jointly by both the brothers in the name of one Thavasi Konar on 05.12.1911 in which the other co-purchaser Appasamy was an attestor. It has been specifically mentioned in the said document that the properties covered in the said mortgage deed are self-acquired properties of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Rajagopal, Damadorasamy, Kamalam and Dhanalakshmi as his legal heirs. At this stage, Ramachandran, son of Chinnamma Naidu filed a suit for partition in O.S. No. 280 of 1994 before the Sub Court, Tirupur. On notice, the defendants in the suit have filed an application under Order 7 Rule 11 of CPC to reject the plaint on the ground that there is no cause of action for filing the suit. The trial court accepted the plea of the defendants and dismissed the suit on 17.08.1998. Aggrieved by the same, Ramachandran filed an Appeal before the I Additional District Court, Coimbatore in A.S. No. 188 of 1999. During the pendency of the said appeal, an application in I.A. No. 195 of 2000 has been filed seeking to withdraw the suit with leave to file a separate partition suit on the same cause of action. The said application in I.A. No. 195 of 2000 was allowed on 28.03.2001 and the suit in O.S. No. 280 of 1994 was dismissed as withdrawn with liberty to file a fresh suit on the same cause of action. 11. It is the plea of the plaintiffs that Ramachandran, one of the sons of Chinnama Naidu continued to be in joint possession of the suit property along with his co-sharers which is evident from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted any amount in purchasing the suit property and the sale deed in respect of the suit property was executed only in the name of his grandfather Govindasamy Naidu, the claim of the plaintiffs, who are grandsons of Chinnama Naidu and sons of Ramachandran, for partition and separate possession of the suit property, cannot be sustained. 13. Similarly, the third defendant filed a written statement reiterating that Chinnama Naidu has not contributed any amount for purchasing the suit property. He was also not in joint possession of the suit property, as alleged. The revenue records have been manipulated and the name of Chinnama Naidu was erroneously included in the revenue records. Earlier, Ramachandran, father of the plaintiffs filed a suit in O.S. No. 280 of 1994 for partition and separate possession of the suit property and it was dismissed. When the appeal as against the decree and judgment in O.S. No. 280 of 1994 was pending, the suit was withdrawn on 28.03.2001 with a liberty to file a fresh suit. But, Ramachandran, who withdrew the suit, did not file any fresh suit till his death in the year 2007. However, three years after the death of Ramachandran and nine years after with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation at the instance of Ramachandran, father of the plaintiffs, who filed O.S. No. 280 of 1994 for the very same relief of partition and separate possession. The trial court recorded a specific finding that even though father of the plaintiffs namely Ramachandran withdrew the appeal filed by him as against the Judgment and Decree passed in O.S. No. 280 of 1994 with liberty to institute a fresh suit for partition on the same cause of action, he failed to institute a fresh suit until his death in the year 2007. As per Article 113 of the Limitation Act, Ramachandran ought to have laid the suit within a period of three years that too on the basis of same cause of action. Therefore, the present suit filed by the legal heirs of Ramachandran is barred by limitation. 18. Though all the issues framed by the trial court were answered in favour of the plaintiffs, the suit was dismissed by the trial court on the ground of limitation in filing the suit. Assailing the validity of such judgment and decree passed by the trial court on 21.11.2017 in O.S. No. 534 of 2010, the plaintiffs are before us with this appeal. 19. At the outset, the learned counsel for the respondents/defendants sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. A2, Appasamy Naidu, co-purchaser under Ex. A1, signed as one of the identifying witnesses to Ex. A2. 21. The learned counsel for the appellants also placed reliance on Ex. B15, mortgage deed dated 03.03.1926 executed by Govindasamy Naidu in favour of Ayyavoo Konar. By and under this mortgage deed, Govindasamy Naidu has mortgaged his 2/8 share in Ex. A1. As per the recitals contained under Ex. B15, the mortgagee is entitled to half share in the western side i.e., except the undivided half share of the brother Chinnama Naidu on the western side. Therefore, under Ex. B15, Govindasamy Naidu clearly accepted the title of the suit property in favour of his younger brother Chinnama Naidu in respect of 1/8 share in the suit property Further, Ex. B15 is a registered document and it is sufficient to prove the title of Chinnamma Naidu. While so, in the written statement filed by the defendants 2 to 9 and 11, 12, 16 and 18, they have contended that Chinnama Naidu has not contributed anything for purchasing the suit property. Such a plea in the written statement need not be considered inasmuch as Ex. A2 was executed atleast eight decades before the birth of the defendants and a century p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Govindasamy Naidu in the suit property, which was also accepted by the trial court. 23. The learned counsel for the appellants had also drawn our attention to the sale price indicated under Ex. A1 at ₹ 5,900/-. According to him, out of the sum of ₹ 5,900/- the vendor directed the purchaser to discharge the previous debt of ₹ 3,401/- to one Thirumalaiswamy Iyengar. Therefore, both the joint owners namely Govindasamy Naidu and Chinnama Naidu executed Ex. A2, mortgage deed dated 05.12.1911 in favour of Thavasi Konar to discharge the debt. In fact, the recitals under Ex. A2 indicate that the property was the self-acquired property of Govindasamy Naidu and Chinnama Naidu and the mortgage deed under Ex. A2 was executed to discharge the past debt. Therefore a conjoint reading of Exs. A1, A2, A5 and B15 would only go to show that Chinnama Naidu had equally contributed for purchasing the suit property along with his brother Govindasamy Naidu. The defendants also did not let in any contra evidence to disprove the recitals contained under Ex. A1, A2, A5 and B15 and therefore, the trial court has also, by and large, accepted these recitals to conclude that the suit prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Limitation Act merely because the present suit is not filed within three years from the date of obtaining leave by Ramachandran, father of the plaintiffs in the earlier suit filed by him in O.S. No. 280 of 1994 for partition. The said suit was not dismissed on merits, but at the instance of the defendants in that suit, who have filed an application under Order VII Rule 11 of CPC to reject the plaint on the ground that there is no cause of action for instituting that suit. The trial court accepted the application filed under Order VII Rule 11 of CPC and dismissed the suit. As against the same, an appeal in A.S. No. 188 of 1999 was filed. Pending appeal, an application was filed to withdraw the suit with liberty to file a fresh suit on the same cause of action. Accordingly, granting liberty to file a fresh suit on the same cause of action, the appeal in A.S. No. 188 of 1999 was dismissed as withdrawn on 28.07.2001. However, after withdrawing the appeal, Ramachandran did not file any fresh suit until his death. Rather, he persuaded all the legal heirs and attempted to find out an amicable resolution of the dispute. The fact remains that till his death, Ramachandran w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellant relied on several decisions. He also relied on the decision rendered by the Madhya Pradesh High Court in the case of Narsingh Rao and others vs. Shantabai and others) reported in 1974 MPLJ page No. 211 wherein it was held that a fresh suit for partition is not barred even if an earlier suit was dismissed as compromised because the right to bring a suit for partition, like any other suit, is a continuing right incidental to the ownership of the property. This decision was relied on by the counsel for the appellant to drive home the point that the right to institute a suit for partition survives as long as the property remains joint. The learned counsel for the appellant therefore prayed for setting aside the judgment and decree of the trial court and to allow this appeal. 26. Per contra, the learned counsel for the first respondent would contend that earlier, Ramachandran had filed the suit in O.S. No. 280 of 1994 for partition and it was dismissed on 17.08.1998. The said suit was filed by him after issuing a notice dated 07.03.1994 calling upon all the legal heirs to come for partition of the suit property, amicably. A reply notice dated 17.03.1994 was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration before this Court in Harshad Shantilal Mehta vs. Custodian (1998) 5 SCC 1. The vires of the said Statute was upheld, inter alia, on the ground that by reason thereof the right, title and interest in a property belonging to Respondent 3 is not affected. The interest of the appellant, thus, was not affected by the said act or by the Benami Transactions Act. Extinction in right, title and interest in a property must be caused as a result of operation of law and not otherwise. Creation of title by an act of parties is subject to law. Once a title vests in a person he cannot be divested therefrom except by reason of or in accordance with a statute and not otherwise. An admission does not create a title; the logical corollary whereof would be that an admission of a party would not lead to relinquishment of his right therein, if he has otherwise acquired a title in the property. 28. The learned counsel for the first respondent would further contend that the suit for partition without a prayer for declaration of title is not maintainable. In fact, the only pleading in the plaint was joint possession of the suit property by Govindasamy Naidu and Chinnama Naidu, which wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the validity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So, the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29.01.1947, the date on which the sale deed was executed and registered and the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceeded to contend that the suit filed by Ramachandran in O.S. No. 245 of 1994 (re-numbered as O.S. No. 280 of 1994) does not contain any pleading with respect to holding of the property in a fiduciary capacity. There is no plea that the mortgage deed confers title in favour of Chinnama Naidu. The suit was filed for partition only on the basis of alleged joint possession of the suit properties. On the other hand, the present suit has been filed with the averment that their grandfather Chinnamma Naidu had contributed for purchasing the suit property along with his elder brother Govindasamy Naidu. They have also averred in the present suit that the subsequent mortgage deeds in respect of the suit property have been executed jointly by Govindasamy Naidu and Chinnamma Naidu to indicate that the suit property was purchased by them jointly with equal contribution and they were in joint possession of the suit property. However, there was no specific plea of the joint title or fiduciary capacity in the plaint. This is more so that the third defendant, in his written statement, raised a specific plea denying the title in favour of the plaintiffs and their predecessors. In fact, after a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary capacity is a personal one and it cannot be raised by the plaintiffs after a decade of execution of Ex. A1, sale deed. Even Ramachandran, father of the plaintiffs, did not raise the plea of fiduciary capacity in O.S. No. 280 of 1994 filed by him and therefore, the plaintiffs, who are the legal heirs of Ramachandran, are estopped from raising such a plea. The plaintiffs introduced a case that revenue records stand in the name of legal representatives of Chinnama Naidu to prove the fiduciary capacity. But it is well settled that entries in the revenue records will not confer any authority conferring title on anybody when there is no title in the person in whose name entries stand. 32. The learned counsel for the first respondent would also contend that Sections 81, 82 and 94 of the Indian Trust Act, 1882, which have been repealed by the Benami Act, specifically provides for the person in whose name the property is transferred for consideration provided by another to be holding the said property for the benefit of the other. In this case, the very plea of contribution of amount by Chinnamma Naidu for purchasing the suit property under Ex. A1 demolishes the plea of fiduciary ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent therefore, prayed for dismissal of the appeal. 34. The learned counsel appearing for the respondents 10, 11 and 12 would contend that the respondents 10, 11 and 12 are legal heirs of Ponnusamy, who was arrayed as 10th defendant in the suit. The said Ponnusamy is the brother of Ramachandran and both of them are sons of Chinnama Naidu. According to the learned counsel, the tenth defendant has filed his written statement in the suit in which he has admitted that Govindasamy Naidu and his younger brother Chinnamma Naidu have jointly purchased the suit property. It is the contention of the tenth defendant in the written statement that as per the then prevailing custom, culture and tradition, in the absence of the father, the eldest male member of the family takes a predominant and leading role in the family and all the functions in the family used to be performed at the behest of such elderly male member. True to such custom, the sale deed dated 05.04.1911, Ex. A1 was registered in the name of Govindasamy Naidu, even though Chinnamma Naidu has equally contributed for purchasing the suit property. The tenth defendant also in his written statement admitted that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r death, their respective legal heirs continue to enjoy the suit properties separately. In fact, under Ex. A11, Chinnamma Naidu paid taxes separately and after his demise, his son Ponnusamy, D-10 continued to pay the taxes separately which could be evident from Exs. B1 and B6. There were also documentary evidence filed before the trial court such as Ex. B13 and B14 to show that the legal representatives of Govindasamy Naidu were in separate possession and enjoyment of half share in the property purchased under Ex. A1. While so, the suit filed by the plaintiffs on the ground that the suit property was in joint possession of the plaintiffs and defendants is legally not sustainable. In fact, PW1 also admitted in her evidence that the suit properties are not in joint possession of the plaintiffs and defendants. Therefore, when it is admitted by PW1 that the plaintiffs are not in joint possession, the Court fee payable is under Section 37(1) of the Tamil Nadu Court Fee and Suit Valuation Act. However, the suit has been valued under Section 37(2) and 27(c) of the Tamil Nadu Court Fee and Suit Valuation Act by raising a plea that the plaintiffs are in joint possession of the suit property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even in his written statement, has specifically raised the plea of ouster. Such a plea has been substantiated by the deposition of PW1 herself who has stated that the plaintiffs are not in possession of the suit property. In fact, from the year 1961, the tenth defendant was in possession of half of the suit property which had come to Chinnama Naidu and subsequently, his legal heirs, the defendants 13 to 15 are in exclusive possession and enjoyment of the suit property. This was also substantiated by marking Exs. B1 to B8. Such possession by the D-10 and subsequently by D-13 to D-15 is also known to plaintiff's father Ramachandran and to the plaintiffs. Therefore, the claim of the plaintiffs for partition and separate possession has to be rejected since the plaintiffs were ousted from co-ownership for more than 33 years. The trial court has failed to consider this aspect and erroneously concluded that the plaintiffs were in joint possession of the suit properties and the plea of ouster will not arise in this case. Such a finding of the trial court is unsustainable and it is liable to be set aside even though it has not been assailed by filing a cross-appeal. The learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mortgage deeds and contended that Govindasamy Naidu himself has accepted the title of his brother Chinnama Naidu in the suit properties. Even in the written statement, the defendants did not dispute about the various mortgage deeds relied on by the appellants, but only contended that they have been created for the purpose of filing the suit. The tenth defendant also in his written statement has admitted the title of Chinnamma Naidu in the suit property. Further, no issue has been framed by the trial court as regards the maintainability of the suit for want of a prayer for declaration. Therefore, in the appellate stage, the respondents are estopped from canvassing such a plea and he prayed for allowing the appeal. 40. We have heard the counsel for the parties at some length and have carefully gone through the materials placed. As we have dealt with the factual matrix of the case at some required length, we refrain ourselves from dealing with the facts of the case any further. However, certain facts which are absolutely necessary alone are dealt with hereunder for the purpose of adjudicating this appeal. 41. Having considered the contentions urged on behalf of the counsel on e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ₹ 2,000/- in which the other co-purchaser Appa Naidu was an attestor. The purpose of this mortgage deed is to discharge the earlier mortgage debt shown as part of sale consideration under Ex. A1, which is specifically indicated in this mortgage deed viz., Ex. A2. Similarly, reliance was also placed on the mortgage deed under Ex. B15 dated 03.03.1926 executed by the elder brother Govindasamy Naidu in favour of one Ayyavoo Konar mortgaging his 2/8 share under Ex. A1. Much reliance was placed on Ex. B15 for the reason that on the same day namely 03.03.1926, under Ex. A5, Chinnama Naidu has separately executed a registered mortgage deed in favour of the very same Ayyavoo Konar mortgaging his 1/8 share in the property covered under Ex. A1 for the purpose of discharging the balance debt payable under Ex. A2 and directed Ayyavoo Konar to adjust the same towards discharge of his share of earlier mortgage debt under Ex. A2. Ex. B15 and Ex. A5 are registered as document Nos. 400 and 401 of 1926. Similarly, the plaintiffs also relied on Ex. A6 dated 13.09.1943 executed by Chinnamma Naidu in favour of one Velliangiri mortgaging his share in the suit property. Yet another mortgage de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and A7 are registered documents and they partake the character of a genuine and admissible document to be relied on and marked in a judicial proceeding. On a careful reading of the recitals contained under Exs. A1, A2, A3, A5, A6 and A7, it is evident that Govindasamy Naidu, in whose name the sale deed under Ex. A1 stands, has permitted his brother Chinnamma Naidu to execute Exs. A2, A5, A6 and A7, meaning thereby, he had expressly conferred title in favour of his brother in respect of 50% in the half share he had purchased under Ex. A1. Such a conferment could further strengthen the fact that Chinnamma Naidu had adequately contributed for the purchase of the suit property along with his elder brother Govindasamy Naidu. If really the suit property was purchased wholly out of the contributions of Govindasamy Naidu, he would not have permitted his brother to assume ownership by executing the subsequent mortgage deeds. In fact, as per the recitals under Ex. A1, out of the total sale price of ₹ 5,900/- the vendor directed the purchaser Govindasamy Naidu to discharge the balance amount of ₹ 3,401.10 payable to Thirumalaiswamy Iyengar towards mortgage debt. Therefore, under E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed by a person who has no title to the property covered under the mortgage. This is more so that the mortgage deeds under Exs. A5, A6 and A7 were registered mortgage deeds. In the absence of title in favour of Chinnamma Naidu, the registering authorities would not have permitted execution of Exs. A5, A6 and A7 by Chinnamma Naidu, independently. Therefore, we answer point No. 1 framed in this appeal to the effect that it was established by the appellants/plaintiffs that their grandfather Chinnamma Naidu had adequately contributed for purchasing the property covered under Ex. A1, sale deed dated 05.04.1911 along with his elder brother Govindasamy Naidu. Point Nos. 2 and 3:- 46. As regards the claim of the defendants with respect to the bar under the Prohibition of Benami Property Transactions Act, 1988, it is to be observed that the appellants/plaintiffs did not raise any pleading with respect to fiduciary relationship between the brothers Govindasamy Naidu and Chinnamma Naidu in the plaint. However, when the defendants filed written statement and pleaded the inadequacy of pleadings in the plaint with respect to the fiduciary relationship between the brothers Govindasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-a-vis the plaintiffs-respondents. 24. The first and foremost of the circumstance relevant to the question at hand is the fact that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It is common ground that at the time of her demise she had not left behind any Will nor is there any other material to suggest that she intended that the tenancy right held by her in the suit property should be transferred to the appellant to the exclusion of her husband, C.F. Martins or her daughters, respondents in this appeal, or both. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court and found against the appellant. The plea was not, therefore, new nor did it spring a surprise upon the appellant, especially when it was the appellant who was relying upon Section 4 of the Act and the respondents were simply defending the maintainability of their suit. That apart, no question of fact beyond what has been found by the High Court was or is essential for answering the plea raised by the appellant nor is there any failure of justice to call for our interference at this stage. 48. In the present case, according to the plaintiffs, Chinnamma Naidu had adequately contributed for purchasing the suit property however, the sale deed under Ex. A1 stands in the name of his elder brother Govindasamy Naidu, who holds the suit property in a fiduciary capacity. The Plaintiffs have also contended that as per the then prevailing custom and tradition, a property will be purchased in the name of the elder even if the younger had also contributed for purchasing the property. This would indicate that Chinnamma Naidu had reposed faith, trust and confidence upon his elder brother Govindasamy Naidu in whose name the sale deed under Ex. A1 stood. Until the death of Govindasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As we have held in respect of point No. 1, Chinnamma Naidu has got a share in the property covered under Ex. A1 along with his elder brother Govindasamy Naidu. Therefore, Chinnama Naidu is a coparcener in respect of the suit property and therefore, the applicability of the Act is specifically excluded. The appellants/plaintiffs also raised the plea with respect to fiduciary capacity in their reply statement before the trial court and evidence was also let in to that effect. Therefore, we hold that Govindasamy Naidu was holding the suit property in a fiduciary capacity for and on behalf of his younger brother Chinnamma Naidu and consequently, the suit transaction is not hit by the provisions of Benami Transaction Act. Accordingly, we answer point Nos. 2 and 3 also in favour of the appellants/plaintiffs. Point No. 4:- 50. The father of the plaintiffs Ramachandran has admittedly filed a suit in O.S. No. 280 of 1994 for partition. On notice, the defendants in the suit have filed an application under Order VII Rule 11 of CPC to reject the plaint on the ground that the plaint did not disclose a cause of action. The trial court, accepting the averments made in the application un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In the present case, according to the learned counsel, the plaintiffs attempted to effect an amicable partition as could be evident from the deposition of PW1, however, when the defendants 2 and 3 had taken steps for removal of the name of their father Ramachandran from the revenue records, they were constrained to file the suit for partition. In other words, according to the plaintiffs, the right to sue against the defendants arose on receipt of the notice from the Tahsildar and immediately, the suit was instituted. Therefore, it is the contention of the counsel for the appellants/plaintiffs that the suit is maintainable and it is not hit by the provisions of The Limitation Act. To fortify this submission, the learned counsel relied on the decision of the Division Bench of this Court in the case of Pothukutchi Appa Rao vs. Secretary of State reported in (1938) 47 L.W. 438 : AIR 1938 Madras 193 wherein it has been held as follows:- 33. The legal position may be briefly stated thus:-The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other words, the earlier suit in O.S. No. 280 of 1994, which culminated in A.S. No. 188 of 1999, was not adjudicated on merits. There was no issues framed in the earlier suit in O.S. No. 280 of 1994 filed by the father of the plaintiffs Ramachandran. According to the plaintiffs, Ramachandran did not institute a fresh suit rather, he attempted to smoothen the roughed feathers and tried to effect an amicable partition among all the eligible legal heirs. However, Ramachandran could not succeed in finding a solution and eventually, he died on 10.06.2007. According to the plaintiffs, they also made efforts for effecting a peaceful partition among the legal heirs and at that stage, at the behest of the defendants 2 and 3, a notice dated 18.05.2010 was received from the Tahsildar to participate in an enquiry to be conducted, to enquire as to why the name of their father Ramachandran be not removed from the revenue records in respect of the suit property. As all the efforts made by the plaintiffs were demolished by reason of the application submitted by the defendants 2 and 3 for removal of the name of their father from the revenue records, the plaintiffs have decided to file a suit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to file the present case. When the right and interest of the plaintiffs to claim partition over the suit property is at stake and there is an imminent threat to such right, no normal prudent person would keep quiet without taking steps to assert his legitimate right and interest. The action of the defendants in attempting to remove the name of the plaintiffs' father from the revenue records is such that there is an imminent threat for the plaintiffs' to assert their right, interest and title in the property without which they will be deprived of their legitimate right. In such circumstances, we hold that the present suit in O.S. No. 534 of 2010 has nothing to do with the suit in O.S. No. 280 of 1994 filed by the father of the plaintiffs as the cause of action for both the suits are basically different. When the cause of action for the plaintiffs to file the instant suit in O.S. No. 534 of 2010 springs from and out of the notice dated 18.05.2010 issued by the Tahsildar, Sulur, we are of the view that the suit for partition, as filed by the plaintiffs, is well within the period of limitation. We could also see from the plaint averments that the plaintiffs have categorically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the descendants of Govindasamy Naidu, coupled with the admission of Ponnusamy, tenth defendant, in his written statement admitting the title of Chinnama Naidu in the suit property, we are of the view that the suit filed by the plaintiffs for partition, even without the relief of declaration of title, is maintainable. We accordingly answer Point No. 5 also in favour of the plaintiffs. Point No. 6 56. The plea of ouster was raised by the defendants 13 to 15 in their written statement. In view of our answer to Point No. 4, this plea cannot be sustained. However, at the risk of repetition, we hasten to add that the plaintiffs, in their plaint, have asserted that they are jointly in possession of the suit property along with the other legal heirs viz., defendants. The revenue records also stand in the name of their father Ramachandran. In a suit property, it is always regarded that the possession of one of the co-parceners is for and on behalf of the other co-parcener as well and the plea of ouster cannot be considered in a suit for partition on par with the plea of ouster raised in a suit for declaration. We could also see from Ex. B16 filed before the trial court t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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