Madras High Court
Unknown vs V.N.Jagannathan (Died) on 27 February, 2023
Author: P.T.Asha
Bench: P.T.Asha
S.A.No.1485 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :27.02.2023
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.1485 of 2005
and C.M.P.Nos.19312 of 2005
and 2070 of 2008
1. M.Parameswaran (Died)
Memo recorded
A1 died, A2 already on record is
LRs of the deceased A1vide Court
Order dated 31.10.2019 made in
S.A.No.1485 of 2005
2. P.Santhamani ...Appellants
Vs.
1. V.N.Jagannathan (died)
2. V.N.Subramaniam(died)
3. J. Nagarajan(died)
4. J.Shanmughan
5. J.Natarajan
(R4 and R5 are recorded as LRs of the
deceased R1 and R3)
6. V.S.Sivakumaran
7. V.S.Kumaravel
8. V.S.Rajendran
9. S.Nandhini
(R6 to R9 are recorded as LRs of the
deceased R2 vide order of Court dated
03.02.2014 made in Memo in S.A.No.1485 of 2005
https://www.mhc.tn.gov.in/judis
1/19
S.A.No.1485 of 2005
Memo USR.No.665 of 2014 is recorded]
10. Lakshmi
11. Pappal
12. K.Selladurai
13. N.C.Angamuthu
14. K. Lakshminarayanan
15. S.Karuppuswamy ...Respondents
[R10 to R15 are given up
vide order of Court dated 14.10.2019
made in S.A.No.1485 of 2005 as per
Memo dated 14.10.2019 are recorded]
Prayer:- This Second Appeal has been filed under Section 100 of
Civil Procedure Code against the Judgment and decree of the I
Additional District Judge, Coimbatore dated 13.01.2004 in
A.S.No.106 of 2002, confirming the judgment and decree of the
District Munsif, Coimbatore in O.S.No.1082 of 1997 dated
28.02.2022.
For Appellants : Mr.K.Srinivasan, Senior Counsel
for Mr.J.Antony Jesus
For Respondents
1 to 3 : Died
For Respondents :Mr.P.Saravana Sowmiyan
4 to 9
For Respondents
10 to 15 : Given up
vide order dated 14.10.2019
https://www.mhc.tn.gov.in/judis
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S.A.No.1485 of 2005
JUDGMENT
The defendants 1 and 4 are the appellants before this Court challenging the judgment and decree against them.
2.The brief facts leading to the filing of this second appeal are herein below set out and the parties are referred to in the same ranking as before the trial court, namely, III Additional District Munsif, Coimbatore.
3.The second appeal had been admitted on the following substantial questions of law.
1.Whether the courts below are legally correct in its reading and interpretation 03.10.1917, Ex.A9 when they find that the properties obtained by the 3 brothers, sons by the 1" wife of Nanjappa, are separate properties belonging to them and not joint family properties belonging to a smaller co-parcenary?
https://www.mhc.tn.gov.in/judis 3/19 S.A.No.1485 of 2005
2. Whether the Lower Appellate Court is legally correct in the reading and interpretation of the partition deed, dated 03.10.1917, Ex.A9?
3. Whether in any event, the defendants have not obtained absolute rights to the suit properties by adverse possession ouster of the plaintiffs by reason of their absolute possession and enjoyment for over 65 years?
4. When the plaintiffs themselves have admitted in their plaint that they are not in physical possession of the suit properties, whether the courts below are right in law in finding that the plaintiffs are in the position of co-owners and co-sharers and that therefore possession of one co-owner in possession of other co-owners?
5. Whether the Courts below have correctly read and interpreted the various documents filed in the suit in coming to the conclusion of the plaintiffs being in joint and constructive possession? However, after the arguments of the learned counsel on both sides were heard, the learned counsels agreed that the issue involved in this Second Appeal is only the 3rd substantial question of law. https://www.mhc.tn.gov.in/judis 4/19 S.A.No.1485 of 2005
4.The plaintiffs had filed the suit O.S.No.1082 of 1997 on the file of the Additional District Munsif, Coimbatore for a partition of the suit properties into 600 equal shares and allotting 45 such shares each to plaintiffs 1, 3, 4 and 5 and allotting 36 such shares each to the plaintiffs 2, 6, 7, 8 and 9, for a permanent injunction restraining the defendants, their men and agents from creating any alienation or encumbrance in respect of the plaintiff's share and restraining them from altering the physical features of the suit properties either by putting up the construction or otherwise.
5.It is the case of the plaintiffs that the 1 st and 2nd plaintiffs are the sons of Nanjappa Chettiar, who died on 24.10.1930. Nanjappa Chettiar had two wives. Through the first wife, he had three sons, Muthuswami Chettiar, Kandaswami Chettiar and Marudhachalam Chettiar. Through the 2nd wife, the said Nanjappa Chettiar had two sons, Jaganathan and Subramaniam (Plaintiffs 1 and 2). Plaintiffs 3 to 5 are the sons of the 1st plaintiff and plaintiffs 6 to 9 are the children of the 2nd plaintiff. Defendants 1 to 3 are the children of https://www.mhc.tn.gov.in/judis 5/19 S.A.No.1485 of 2005 Marudhachalam Chettiar and the 4th defendant is the daughter of the 1st defendant. The Genealogy tree is herein below extracted in order to appreciate the relationship between the parties:
Muthan Chettiar (Son) Nanjappa Chettiar 2nd Wife 1st Wife Kamatchiammal Muthuswamy = Kandaswamy V.N.Jaganathan (1st V.N.Subramanian Marudhachalam Ayammal Ponnammal (unmarried) plaintiff) (2nd plaintiff) M.Parameswaran Lakshmi (2nd Pappal (3rd (1st defendant) defendant) defendant) (Daughters) J.Nagarajan (3rd J.Shanmugam (4th J.Natarajan (5th
1.Santhanalakshmi plaintiff) plaintiff) plaintiff)
2.Sarojini V.S.Sivakumaran V.S.Kumaravelu (7th V.S.Rajendran (8th S.Nandhini (9th (6th plaintiff) plaintiff) plaintiff) plaintiff)
6. It is the plaintiffs' case that on 03.10.1917, Nanjappa Chettiar and his three sons through the 1st wife had entered into a partition, in which, three brothers were in joint possession and enjoyment of the suit properties. The 2nd son Kandaswami Chettiar died as a bachelor issueless and the eldest son, Muthusamy Chettiar died on 01.02.1934 leaving behind him surviving his wife, Ponnammal @ Rangammal, who died on 05.03.1946. The father, https://www.mhc.tn.gov.in/judis 6/19 S.A.No.1485 of 2005 Nanjappa Chettiar had died on 24.10.1930 and Marudhachalam Chettiar, the father of defendants 1 to 3 had died on 30.07.1943. When Nanjappa Chettiar died on 24.10.1930, he had left behind him surviving 2nd wife and the children born through her and the 3rd son, Marudhachalam Chettiar and the daughter-in-law, Ponnammal.
7.On the death of Kandasamy Chettiar, his 1/3 share devolved upon his father, Nanjappa Chettiar and on Nanjappa Chettiar's death, his 1/3" share devolved equally on his 2 wife, Kamatchiammal on the enactment of the Hindu Succession Act, 1956 got her limited right enlarged. On the death of Muthusamy Chettiar, his share fell to the share of Ponnammal, who had enjoyed her share without alienation or encumbrance. On Ponnammal's death in the year 1946, her share fell equally to the plaintiffs 1 and 2, since Marudhachalam Chettiar, the 3" brother had pre-deceased Ponnammal. Therefore, it was the contention of the plaintiffs that they are entitled to an undivided 9/30 share in the suit properties, i.e 6/30 each from Muthusamy Chettiar, 1/5 each from Nanjappa Chettiar and 1/30 each from Kamatchi Ammal. The plaintiffs 3 to 5 being the sons of the 1"
https://www.mhc.tn.gov.in/judis 7/19 S.A.No.1485 of 2005 plaintiff had a share along with their father by birth. Apart from sons, the 1" plaintiff had two daughters, Santanalakshmi and Sarojini who had got married prior to the passing of the Tamil Nadu Act 1 of 1990 and were not entitled to a share in the suit schedule properties. Plaintiffs 6 to 9 who are the children of the 2 plaintiff, are each entitled to a share in the suit properties along with their father. The 1" plaintiff along with plaintiffs 3 to 5 are entitled to 45/600 each and 2nd plaintiff along with plaintiff 6 to 9 are entitled to 36/600 each in the suit properties. The plaintiffs would submit that they are in joint possession of the suit properties, which are agricultural lands. Though the plaintiffs had been demanding for a partition, the defendants were not coming forward to partition the properties, constraining the plaintiffs to issue a legal notice dated 28.02.1997. After receipt of the legal notice, the 1 defendant has hastened to alienate the properties in collusion with defendants 2 and
3. The plaintiffs are therefore constrained to issue a public notice and thereafter, a reply dated 29.03.1997 was received by the plaintiffs' counsel only on 05.06.1997. After the notice, the 1"
https://www.mhc.tn.gov.in/judis 8/19 S.A.No.1485 of 2005 defendant along with his daughter, the 4 defendant has sold away the property described as the "B" schedule property to defendants 5 to
8. The plaintiffs would submit that they are not bound by the sale. Therefore, the suit for partition is filed.
8.The 1" defendant had filed a written statement denying the allegations contained in the plaint except for the relationship between the parties. The devolution of the share of each sharer as set out in the plaint was denied and it is the case of the plaintiffs that since there was a partition during the life time of the father itself, on the death of Muthusamy Chettiar and Kandaswamy Chettiar, the property would not devolve upon the plaintiffs who are the children through the 2nd wife and it was only Marudhachalam Chettiar, who would inherit their rights. That apart, the defendants would contend that they are in exclusive possession and enjoyment of the suit properties, since the demise of their father was in the year 1943. The children through the 2nd wife has not exercised any right over the suit properties. Therefore, there is a clear case of ouster even before https://www.mhc.tn.gov.in/judis 9/19 S.A.No.1485 of 2005 the death of Nanjappa Chettiar. They would therefore seek to have the suit dismissed.
9.The defendants 2 and 3 had filed a written statement inter-alia reiterating the stand taken by the 1" defendant and contending that the undivided share of Muthusamy Chettiar and Kandasamy Chettiar devolved by survivorship on Marudhachalam Chettiar. They had also contended that the claim was barred by limitation and had therefore, sought to have the suit dismissed.
10.The Trial Court had framed the following issues:-
(1) jhthr; brhj;Jf;fspy; 1.3 Kjy; 5 thjpfs; 45-600 g';Fk; 2.6 Kjy; 9 thjpfs; 36-600 g';Fk; gphpj;Jf; bfhs;tjw;F thjpfs; Kjy; epiy jPh;g;ghiz bgwj;jf;fth;fsh> (2) jhthr; brhj;Jf;fis vjph;thjpfnsh.
vjph;thjpfspd; Ml;fnsh ahUf;Fk; fpiuak; nghd;w tpy;y';f';fs; Vw;gLj;jf;TlhJ vd;W thjpfs; epue;ju cWj;Jf; fl;lisg; ghpfhuk; bgwj;jf;fth;fsh> https://www.mhc.tn.gov.in/judis 10/19 S.A.No.1485 of 2005 (3) jhthr; brhj;Jf;fspy; mk;r';fis.
Vjph;thjpfs; khw;wf;TlhJ vd;W jil bra;tjw;F thjpfs; epue;ju cWj;Jf; fl;lis ghpfhuk;
bgwj;jf;fth;fsh>
11.The 1" plaintiff had examined himself as PW1 and the 5th plaintiff as P.W2. Exs.A1 to 25 were marked on the side of the plaintiffs. On the side of the defendants, the 4th defendant had examined himself as D.W1, the 1st defendant as D.W2 and the 2nd defendant as D.W3 and Exs.B1 to B16 were marked. Ultimately, the trial Court on appreciating the evidence on record held that the plaintiffs 1,3 4 and 5 are entitled to a 45/600 each and the plaintiffs 2, 6 and 9 are entitled to a 36/600 each. The decree for injunction was also granted. Aggrieved by the said judgment and decree, defendants 1 and 4 had filed an appeal in A.S.No.106 of 2002 on the file of the I Additional District Court, Coimbatore. The appellate Court had also confirmed the judgment and decree of the trial Court. Challenging the same, the defendants 1 and 4 have filed the present https://www.mhc.tn.gov.in/judis 11/19 S.A.No.1485 of 2005 second appeal, which was admitted on the substantial questions of law extracted supra.
12.Heard Mr.K.Srinivasan, learned Senior Counsel appearing for Mr.J.Antony Jesus, learned counsel for the appellants and Mr.P.Saravana Sowmiyan, learned counsel appearing for respondents 4 to 9 and perused the materials available on record.
13.The learned senior counsel appearing for the appellants/defendants 1 and 4 would submit that the main ground of attack by the appellants 1 and 4 is that though the defendants had pleaded ouster, the trial Court has not framed an issue with reference to ouster and therefore there is no discussion on this. That apart, the Courts below have failed to appreciate that the plaintiffs had valued Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, which would clearly go a long way to show that the plaintiffs are not in possession of the suit properties. The https://www.mhc.tn.gov.in/judis 12/19 S.A.No.1485 of 2005 partition had taken place as early as in the year 1917 under Ex.A9 and from then the property had devolved only upon the defendants' branch. He would therefore request that the appeal may be allowed and the matter may be remitted to consider the plea of ouster.
14.Per contra, Mr.P.Saravana Sowmiyan, learned counsel appearing for respondents 4 to 9 would submit that the issue of ouster has been raised by the defendants even in their written statement, which is evidenced in paragraph Nos.6 and 7 respectively and the Courts below, though an issue had not been framed, have considered ouster. In fact, the lower appellate Court has dealt with it extensively from paragraph 26 of the judgment onwards. Therefore, the contention of the defendants that the plea of ouster has not been considered is, on the face of it, fallacious. He would submit that the plaintiffs have let in evidence to show their joint possession and further, the defendants who have pleaded ouster have not specified the date from which their possession had become adverse to that of their co-owners and that they have openly excercised rights as https://www.mhc.tn.gov.in/judis 13/19 S.A.No.1485 of 2005 exclusive owner of the suit properties. He would therefore submit that these facts had been taken into account by both the Courts below and hence, the suit for partition has been decreed by the trial Court and confirmed by the lower appellate Court and this Court, exercising jurisdiction under Section 100 of C.P.C, cannot re-appreciate the evidence, which has been held by the trial Court proved to be pronounced wrong by the appellants/defendants.
15.Heard the learned counsels on either side and perused the materials available on record.
16.The relationship of the parties have not been disputed. The contention of the defendants is that the properties which under the partition between Nanjappa Chettiar and the defendants had fallen to the share of the defendants, 1st wife's children of Nanjappa Chettiar. Therefore, the plaintiffs who are only the half brothers have no right to claim a share in the suit properties on the death of Muthusamy Chettiar and Kandasamy Chettiar. The plaintiffs are the sons of Nanjappa Chettiar through his 2nd wife, Kamatchi Ammal and their https://www.mhc.tn.gov.in/judis 14/19 S.A.No.1485 of 2005 children. The counsel for the plaintiff would contend that though a plea of ouster which has been set out in the pleading in this regard is very sketch. The 1st defendant in the original written statement would simply state as follows:-
“This defendant has been in exclusive possession and enjoyment of the suit property, since the death of his father Marudhachalam in 1943. Before that he and his father Marudhachalam were in possession and enjoyment of 4.84 acres of land in S.F.Nos. 613, 614 and 615. Nanjappa Chettiar and his sons through his second wife, viz. petitioners 1 and 2 never exercised any kind of right whatsoever at any point of time over this land. There was thus a clear ouster of Nanjappa Chettiar even before his death in 1930.” This cannot be treated as a plea of ouster, since there is no specific averment to show when the defendants have asserted their independent right, title and interest to the property. Further, the plaintiffs have been able to produce the joint patta of the year 1952 onwards, which would clearly show that the property is being https://www.mhc.tn.gov.in/judis 15/19 S.A.No.1485 of 2005 enjoyed jointly and the plea of ouster by the defendants cannot be sustained. Exs.A6, A7, A8, A10, A17 etc., would clearly show that once the plea of ouster fails, then the property would devolve as follows:
(i) On the death of Kandasamy Chettiar in the year 1920, since he had died a bachelor and issueless, his entire 1/3rd share would devolve on his father, Nanjappa.
(ii) On the death of Nanjappa Chettiar in the year 1930, this 1/3rd share would devolve equally on Muthusamy Chettiar, Marudhachalam Chettiar, Jaganathan (1st Plaintiff) and Subramaniam (2nd plaintiff). Each would be entitled to a 1/12 share. Therefore, Marudhachalm Chettiar and Muthusamy Chettiar in addition to this 1/12 share already had a 1/3rd share which would now increase to a 5/12th share.
(iii) In the year 1934, Muthusamy Chettiar died leaving behind him surviving his wife Ponnammal who inherited his 5/12th share. Therefore the property belonging to the two branches of the https://www.mhc.tn.gov.in/judis 16/19 S.A.No.1485 of 2005 sons of Nanjappa Chettiar through his 1st wife on whom under the Partition Deed-Ex.A9 the properties had devolved, on their death is to be shared as follows:
Ponnammal - 5 / 12th
Maruthachalam - 5/12th
Jagannathan -1/12th
Subramaniam - 1/12th
(iv) In the year 1946 after the death of Ponnammal, her 5/12th share would devolve equally on the plaintiffs and Marudhachalam Chettiar would be entitled to a 5/36 share. Therefore in the year 1946, each of the shares would be entitled to the following.
Marudhachalam } 5/12 + 5/36 = 20/36 = 10/18
(father of the defendants) }
Jagannathan (1st plaintiff } 1/12 + 5/36 = 8/36 = 4/18
and branch) }
Subramaniam } 1/12 +5/36 = 8/36 = 4/18
nd
(2 plaintiff and his branch)}
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S.A.No.1485 of 2005
17.Therefore, the second appeal is partly allowed decreeing a 4/18th share each to plaintiffs 1 and 2 and their respective heirs and the balance 10/18 will go to the share of the defendants. No costs.
Consequently, connected miscellaneous petitions are closed.
27.02.2023 Index : Yes/ No Speaking Order : Yes/No srn To
1. The I Additional District Judge, Coimbatore
2. The District Munsif, Coimbatore.
2. The Section Officer, V.R.Section, High Court, Madras https://www.mhc.tn.gov.in/judis 18/19 S.A.No.1485 of 2005 P.T.ASHA.J srn S.A.No.1485 of 2005 27.02.2023 https://www.mhc.tn.gov.in/judis 19/19