Madras High Court
Mrs.S.Rathinammal vs Mrs.C.Chamundeeswari (Since ... on 30 January, 2018
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON :22.01.2018
JUDGMENT PRONOUNCED ON : 30.01.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.610 of 2013
1. Mrs.S.Rathinammal
2. S.Kumaravelu
3. S.Saravana Kumar ... Plaintiffs
Vs
1. Mrs.C.Chamundeeswari (since deceased)
2. Mrs.S.Dhanalakshmi
3. C.Sivasubramaniam
4. C.Balasubramaniam
[Defendants 2 to 4 are recorded as the LRs of 1st defendant
as per the order passed in Memo dated 20.07.2016]
5. S.Arumugam
6. S.Dhakshinamoorthy
7. S.Vedachalam
8. S.Geethypriyan
9. Minor S.Nava Vignesh
S/o.C.Sivasubramaniam
Rep by his father and natural guardian
Mr.C.Sivasubramaniam
10. Minor S.Narayanamoorthi
S/o. C.Sivasubramaniam
Rep. by his father and natural guardian
Mr.C.Sivasubramaniam
11. Minor B.Sakthivel
S/o. C.Balasubramaniam
Rep. by his father and natural guardian
Mr.C.Balasubramaniam
12. Minor Thirumoorthy
S/o. C.Balasubramaniam
Rep. by his father and natural guardian
Mr.C.Balasubramaniam
13. S.N.Thiyagarajan
14. T.Manivannan
15. T.Ravindran
16. T.Rajkumar ... Defendants
Prayer : Plaint filed under Order XXIV Rule 1 of O.S. Rules read with Order VII Rule 1 of the Code of Civil Procedure, praying for the following judgment and decree:-
(a) for a declaration, declaring the Partition Deed dated 27/02/2002, registered as Document No.1326 of 2002 in the office of the Sub Registrar, Sembium, executed between the defendants 5 and 6 along with their brother S.Chandrasekaran, as null and void;
(b) for a declaration, declaring the Settlement Deed dated 09.07.2008, registered as Document No.5380 of 2008 in the office of the Sub Registrar, Sembium, executed by S.Chandrasekaran in favour of Defendants 1 to 14 herein as null and void;
(c) for a declaration, declaring the Sale deed dated 29.08.2011, registered as Document No.3832 of 2011 in the office of the Sub Registrar, Sembium, executed by Defendants 1 to 4 and 7 to 12 in favour of defendants 13 to 16 as null and void;
(d)consequently for passing of a preliminary decree for partition and separate possession of the suit schedule properties and allot 1/12th share to each of the plaintiffs;
(e)for appointment of an Advocate Commissioner to divide the suit schedule properties by metes and bounds and allot 1/12th share to each of the plaintiffs over the suit schedule properties.
(f)for grant of means profits and cost of the suit.
For Plaintiffs : Mr. K.V.Babu
For Defendants : Mr.P.M.Bakthavatsalam
for D1, D5 and D6
Mr.C.Shankar
for D2 to D4, D7, D8, D13 to D16
J U D G M E N T
Suit for declaration of the Partition Deed, Settlement Deed and sale deed as null and void and for grant of a preliminary decree for partition and separate possession.
2. The brief averments in the plaint are as follows:
The suit properties originally belonged to one M.P.Subramania Mudaliar, being his self-acquisition. The said M.P.Subramania Mudaliar, had died on 28.12.1986, leaving behind four sons and his wife namely Kanniammal had predeceased him. The plaintiffs are the wife and children of one of the sons of M.P.Subramania Mudaliar, namely, S.Shanmugam, who died on 01.09.1990. The defendants 1 to 4 are the legal heirs of another son of M.P.Subramania Mudaliar, by name S.Chandrasekaran, the first defendant died pending suit and defendants 2 to 4 have been recorded as the legal representatives of the deceased first defendant. Defendants 5 and 6 are the other two sons of M.P.Subramania Mudaliar. Defendants 7 to 12 are the great grand children of the deceased M.P.Subramania Mudaliar, Defendants 13 to 16 are the purchasers of one item of the suit property from defendants 1 to 4 and 7 to 12, under a Sale Deed dated 29.08.2011.
3. According to the plaintiffs, it is only when the purchasers attempted to demolish the construction in the suit second item did they come to know that the defendants 1 to 4 and 7 to 12 have created a Partition Deed on 27.02.2002, as if M.P.Subramania Mudaliar, had executed a Will on 24.12.1986, bequeathing the property to be enjoyed for life by his three sons and thereafter the same will have to devolve on their children. Though registered the said Will was not probated in a Court of competent jurisdiction. It is also claimed that in the said partition the first item of suit property was allotted to the defendants 5 and 6 and the second item was allotted to Chandrasekaran, who is one of the sons of M.P.Subramania Mudaliar. The said Chandrasekaran tracing his title, under the Partition Deed dated 27.02.2002 had chosen to execute a deed of settlement dated 09.07.2008, under which the property allotted to him namely the suit second item was settled in favour of his daughter Dhanalakshmi and sons C.Sivasubramanian and Balasubramanian, who are defendants 2, 3 and 4 herein. It was also discovered that claiming under the said settlement deed the defendants 2, 3 and 4 along with defendants 7 to 12 had sold the property to defendants 13 to 16 under a Registered Deed of Sale dated 29.08.2011, registered as document No.3832 of 2011 in the office of Sub Registrar, Sembium. The plaintiffs would further contend that recitals in the said sale deed do not refer to the Will said to have been executed by M.P.Subramania Mudaliar, on 24.12.1986, just prior to his death. It is also seen from the recitals that the minors property has been sold and the permission of the Court has been obtained and the share of the minors has been deposited in the Bank.
4. Claiming that the defendants 2 to 4 and 7 to 12 have no exclusive right, since the Will said to have been executed by M.P.Subramania Mudaliar has not been duly probated, the plaintiffs have come forward with the suit for partition claiming 1/4th share in the two items of the properties shown as schedule 1 and 2 in the plaint. The plaintiffs also seek a declaration that the Partition Deed dated 27.02.2002 entered into between Chandrasekaran and defendants 5 and 6 is null and void, for a declaration that the settlement deed dated 09.07.2008 executed by Chandrasekaran in favour of defendants 1 to 4 is null and void, declaration that the Sale Deed dated 29.08.2011 executed by defendants 1 to 4 and 7 to 12 in favour of defendants 13 to 16 is also null and void and consequently for partition and separate possession of the plaintiffs 1/4th share (1/12th share each).
5. The first defendant had filed a written statement, which is adopted by defendants 2 to 8, wherein it is contended that M.P.Subramania Mudaliar had executed a Will, which is a registered instrument wherein he disinherited his son Shanmugam, who is the husband of the first plaintiff and father of the plaintiffs 2 and 3 for in sub-ordination, misbehaviour, dis-respect and non-maintenance of family. On the death of said Shanmugam on 01.09.1990, the plaintiffs left the suit property with the knowledge of the fact that the Will has been executed dis-inheriting Shanmugam and hence they do not have any right to have interest in the property. It is only after the sale to the defendants 13 to 16, the plaintiffs have come forward with the present suit for partition.
6. It is also claimed that the plaintiffs were ousted and excluded from enjoyment of the suit property, since 1990 namely viz. the date of death of shanmugam and the plaintiffs claim is barred by limitation. It is also claimed that the suit for setting aside the partition deed and the settlement deed is barred by limitation. The fact that the Will has not been duly probated was admitted in the written statement filed by the first defendant. Defendants 2 to 8 have adopted the written statement filed by the first defendant.
7. The defendants 13 to 16 have filed a separate written statement claiming that the plaintiffs, who have kept quiet for nearly 23 years from the date of death of Shanmugam have surprisingly come forward with the suit after the sale of the property in favour of the defendants 13 to 16. It is claimed that the plaintiffs are not in joint possession. According to defendants 13 to 16, they are bona-fide purchasers for value without notice of the defect in title of the defendants 2 to 4 and 7 to 12. It is also contended that insofar as the share of the minors are concerned, the defendants 1 to 4 had filed HMGOP No.11 of 2011, before the Principal Judge, City Civil Court, Chennai and had obtained an order for sale of the property for a total consideration of Rs.79,82,500/- and share of the minors amounting to Rs.53,22,000/- has been deposited to the credit of HMGOP 11 of 2011, as per the order of the learned Principal Judge, City Civil Court, Chennai. It is also claimed that as per the Will dated 24.12.1986, the deceased M.P.Subramania Mudaliar had granted a limited right under the Will to Shanmugam, to reside in the portion of the property till his lifetime. On his death on 01.09.1990, the plaintiffs have vacated the property and handed over the possession to the other sons. Therefore, defendants 13 to 16 would claim that their right as bona fide purchasers for value without notice should be protected.
8. On the above pleadings, the following issues were framed by this Court on 02.07.2015.
1.Whether the plaintiffs are entitled for declaration, declaring the Partition Deed dated 27.02.2002 executed between defendants 5 & 6 along with their brother Mr.S.Chandrasekaran as null and void?
2.Whether the plaintiffs are entitled to the relief of declaration, declaring the Settlement deed dated 09.07.2008 executed by Mr.S.Chandrasekaran in favour of the defendants 1 to 4 as null and void?
3.Whether the plaintiffs are entitled for a declaration, declaring the Sale deed dated 29.08.2011 executed by defendants 1 to 4 and 7 to 12 in favour of defendants 13 to 16 as null and void?
4.Whether the defendants can claim any right, title or interest over the suit properties through an un-probated Will?
5.Whether the plaintiff is entitled for preliminary decree for partition and separate possession of the suit properties to an extent of 1/12th share to each of the plaintiffs?
6.To what reliefs the parties are entitled to?
7.Whether the plaintiff's claim in respect of declaration to declare the Partition Deed dated 22.07.2002 is barred by limitation?
8.Whether the defendants 13 to 16 are the bonafide purchasers of the item No.2 of the suit schedule properties??
9. At trial the 2nd plaintiff was examined as P.W.1 and Exhibits P1 to P11 were marked. The 5th defendant was examined as D.W.1, the 6th defendant was examined as D.W.2, the 3rd defendant was examined as D.W.3 and the 14th defendant was examined as D.W.4 and no documentary evidence was produced on the side of the defendants.
10. I have heard Mr.K.V.Babu, learned counsel appearing for the plaintiffs, Mr.P.M.Bakthavatsalam, learned counsel appearing for the defendants 1, 5 and 6 and Mr.C.Shankar, learned counsel appearing for the defendants 2 to 4, 7, 8, 13 to 16.
Issue Nos.1 to 3:
11. These issues relate to the validity of the three documents, viz., the Partition Deed dated 27.02.2002, marked as Ex.P6, the Settlement Deed dated 09.07.2008, marked as Ex.P7 and the Sale Deed dated 29.08.20121, marked as Ex.P9. The sum and substance of the case of the plaintiffs is that the Will having not been probated, the defendants, who are claiming as legatees or under the Will are not entitled to establish their right in a Court of Law, in view of the bar enacted under Section 213 of the Indian Succession Act. The fact that the Will of M.P.Subramania Mudaliar, dated 24.12.1986, a copy of which has been produced as Ex.P4 is a Will which requires probate under Section 57 of the Indian Succession Act is admitted. In the absence of grant of probate the said Will cannot be relied upon to establish the title of the legatees/executors under the said Will.
12. Mr.K.V.Babu, learned counsel appearing for the plaintiffs would invite my attention to the decisions of this Court in Swaminthan v. S.Dhanushkodi & anothers, reported in 2016 (3) LW 43, wherein this Court had held that an un-probated Will cannot be relied upon to establish any right in view of Section 213 of the Indian Succession Act. To the same effect is the judgment of this Court in Padmavathy Ammal v. Pachaiyappa Nainar & Rangasamy Nainar, reported in 2012 (1) LW 1017. Mr.K.V.Babu, learned counsel would rely upon the judgment of this Court in Mr.Kabali and Ors. v. Arulmighu Shri Ellaiamman Koil, Rep. By its Trustee, reported in MANU/TN/4144/2011, wherein it has held that a legatee under an un-probated Will cannot seek to establish title in a Court of Law. Mr.K.V.Babu, learned counsel would also invite my attention to the judgment of the Division Bench of this Court in G.Ganesan and Ors. v. P.Sundari, reported in 2011 (2) CTC 435, wherein also the Division Bench has held that an un-probated Will cannot be relied upon to establish any right or title in a Court of law.
13. In view of the admitted position that the Will dated 24.12.1986 has not been duly probated in a Court of competent jurisdiction, the said Chandrasekaran or defendants 5 and 6 cannot establish their right or title under the said Will. The said prohibition equally applies to the other defendants also, who claim under the defendants 2 to 4, 5 and 6. It is seen that the defendants 5 and 6 along with Chandrasekaran had chosen to enter into a Partition Deed dated 27.02.2002, claiming right under the Will dated 24.12.1986. The plaintiffs, who are the legal heirs/Clause I heirs of one of the sons of M.P.Subramania Mudaliar viz. Shanmugam were not parties to the said document. Therefore, they are at liberty to ignore the document. The document cannot be said to be binding on them. The settlement deed dated 09.07.2008, executed by Chandrasekaran, in favour of the defendants 1 to 4 will also suffer from the same vice.
14. Admittedly, defendants 13 to 16 have purchased item 2 of the suit property from defendants 1 to 4 and 7 to 12. The said vendors, viz. defendants 1 to 4 and 7 to 12 traced their title under the settlement deed dated 09.07.2008. The settlor under the settlement deed namely Chandrasekaran traces his title under the Partition Deed dated 27.02.2002. If the Partition deed dated 27.02.2002 is found to be not binding on the plaintiffs in respect of the 1/4th share of Shanmugam, the subsequent documents executed by the persons, who are claiming under Chandrasekaran will also be not binding on the plaintiffs in respect of the 1/4th share of Shanmugam. Though, the plaintiffs have prayed for a declaration that the Partition Deed, the Settlement Deed and the Sale Deed are null and void, I do not think that such a prayer could be granted, in view of the stand taken by the defendants in the suit. The defendants 1 to 8 are in unison, when they claim that the Partition Deed and the Settlement Deed are valid and binding on the plaintiffs. At least defendants 5 and 6 were parties to the Partition Deed Dated 27.02.2002. Defendants 5 and 6 have accepted the Partition Deed dated 27.02.2002. Therefore, if a declaration that the document is null and void is to be granted, it will amount to, dislodging the vested rights that are created under the document. Therefore, I am of the considered opinion that the plaintiffs are not entitled to a declaration that the three documents, referred to above, are null and void, but at the same time, they would be entitled to a declaration that those documents are not binding on the plaintiffs in respect of the 1/4th share of Shanmugam in the suit properties. Hence, issues 1 to 3 are answered to the effect that the said Partition Deed dated 27.02.2002, the Settlement Deed dated 09.07.2008 and the Sale Deed dated 29.08.2011 will not be binding on the plaintiffs, in respect of the 1/4th share of the deceased Shanmugam in the suit properties.
Issue No.4:
15. This issue relates to the absence of probate to the Will dated 24.12.1986. In view of the categorical prohibition contained under Section 213 of the Indian Succession Act as well as the Law laid down by this Court in the Judgments, referred to supra, I will have to necessarily conclude that the defendants cannot establish their title or interest over the suit properties through and un-probated Will. Hence this issue is answered in favour of the plaintiffs and against the defendants.
Issue No.7:
16. This issue relates to limitation. Under Article 59 of the Limitation Act, limitation for seeking to set aside a document is three years from the date of the knowledge of the document. The plaintiffs are admittedly not parties to the documents. They came to know about the execution of the documents only during 2012, when defendants 13 to 16 attempted to demolish the existing construction and they applied for Encumbrance Certificate on 22.08.2013 and found that these documents have been entered into between defendants 3 and 4 and Chandrasekaran. The suit has been filed on 10.09.2013. Therefore, it cannot be said that the suit is barred by limitation. Even though, the defendants have claimed that the plaintiffs are ousted from enjoyment of the property for nearly 23 years and therefore, they have lost their right to seek Partition. A perusal of the evidence on record would go to show that such a claim has almost been given up by the defendants, during the course of the proceedings. In fact no issue has been framed regarding ouster.
17. Even otherwise from the evidence on record, I find that there is no assertion of hostile title by the defendants as against the plaintiffs and it is not shown that the defendants have denied the title of the plaintiffs to their knowledge and claimed adversely to the plaintiffs at any point of time. The execution of the documents, viz. the Partition Deed dated 27.02.2002, the Settlement Deed dated 09.07.2008 and the Sale Deed dated 29.08.2011, cannot be said to be acts in derogation of the rights of the plaintiffs. It should be pointed out at this juncture that the sale deed dated 29.08.2011 does not even refer to the Will dated 24.12.1986. The Sale Deed refers to the Partition Deed and the Settlement Deed, therefore, it cannot at any stretch of imagination be construed that the title of the plaintiffs or the right of the plaintiffs was denied to their knowledge by the defendants at any point of time. Hence, issue No.7 is answered against the defendants in favour of the plaintiffs.
18. The relationship of the parties is not in dispute. The fact that the M.P.Subramania Mudaliar, had four sons and one of the sons Shanmugam died on 01.09.1990 is admitted. The fact that the plaintiffs are the wife and children of Shanmugam is also admitted. Once it is found that the Will has not been probated Shanmugam would be entitled to equal share along with the other three brothers, viz. Chandrasekaran, Arumugam, Dhakshinamoorthy. Therefore, Shanmugam will be entitled to 1/4th share in the suit properties, since the wife of M.P.Subramania Mudaliar had predeceased that 1/4th share of the Shanmugam would devolve on plaintiffs in equal shares.
Issue No.5:
19. In view of the discussion and the findings on issues Nos. 1 to 4 and 7, the plaintiffs would be entitled to 1/12th share each in the suit properties. Issue No.5 is answered accordingly.
Issue No.8:
20. The defendants 13 to 16 are third party purchasers and they claimed that they are bona fide purchasers for value of item No.2 of the suit properties. Nothing has been brought about in evidence particularly in Cross-examination of the 14th defendant that they were aware of the interest of the plaintiffs in the property, at the time of the purchase. They have only purchased suit second item and the first item still remains within the family. Apart from the same, a sum of Rs.53,22,000/- remains in Court deposit. Now that it has been held that the Partition Deed, the Settlement Deed and the Sale Deed would not be binding of the plaintiffs to the extent of their 1/4th share, the plaintiffs would be entitled to claim a share in the amount lying in the Court deposit also. In the absence of any evidence to show that defendants 13 to 16 have purchased the property with the knowledge of the defect in title, it cannot be said that their purchases in bad faith. Therefore, I conclude that the defendants 13 to 16 are bona fide purchasers for value without notice of the defect to the title of their vendors.
In fine the suit is decreed as follows:
21. It is declared that the Partition Deed dated 27.02.2002, the Settlement Deed dated 09.07.2008 and the Sale Deed dated 29.08.2011 are not valid and binding on the plaintiffs in respect of their 1/4th share in the suit properties. There will be a preliminary decree declaring that the plaintiffs are entitled to 1/12th share each (1/4th in all) in the suit properties.
Considering the nature of the properties and the fact that the item 2 has already been sold, the plaintiffs will not be entitled to any mesne profits. Considering the relationship between the parties, I direct the parties to bear their own costs.
22. The learned counsel appearing for the defendants 13 to 16 would contend that they being bona fide purchasers for value their right should be protected. He would also rely upon the judgment of the Division Bench of this Court in OSA No.122 of 2015, filed by them against an order of injunction restraining them from putting up construction over the second item of suit schedule, wherein the Division Bench has taken into account, the fact that the plaintiffs have not claimed any injunction against the first item of property, which has fallen to the share of defendants 5 and 6 and they appeared to target only the appellants, who are purchasers of property shown as item 2. The Division Bench is also relied upon the judgment of the Honble Supreme Court in Mandali Ranganna & Others v. T.Ramachandra & Others, reported in 2008 (11) SCC 1, considering the above pronouncement, I am of the considered opinion that interest of justice require that while working out equities at the time of passing a final decree in the allotment is so done, so as to preserve rights of the defendants 13 to 16 under the Sale Deed dated 29.08.2011. The plaintiffs 1/4th share could be allotted to them in such manner that it does not affect the rights of defendants 13 to 16 under the Sale Deed dated 29.08.2011.
30.01.2018 jv Index: Yes Internet: Yes Speaking order List of the Witnesses examined on the side of the Plaintiffs:
P.W.1 S.Kumaravelu List of Exhibits marked on the side of the Plaintiffs:
Sl.No. Exhibits Description of documents 1 Ex.P1 Copy of the Sale Deed dated 04.09.1971 2 Ex.P2 Copy of the Sale Deed dated 30.08.1973 3 Ex.P3 Copy of the Death Certificate of M.P.Subramania Mudaliar 4 Ex.P4 Copy of the registered will dated 24.12.1986 5 Ex.P5 Original Death Certificate of S.Shanmugam 6 Ex.P6 Copy of the Partition Deed dated 27.02.2002 7 Ex.P7 Copy of the Settlement Deed dated 09.07.2008 8 Ex.P8 Copy of the Death Certificate of S.Chandrasekaran 9 Ex.P9 Copy of the Sale Deed dated 29.08.2011 10 Ex.P10 Original Encumbrance certificate dated 22.08.2013 11 Ex.P11 (Series 16) with bill & CD List of the Witnesses examined on the side of the Defendants: D.W.1 S.Arumugam D.W.2 S.Dhakshina Moorthy D.W.3 C.Sivasubramaniam D.W.4 T.Manivannan List of Exhibits marked on the side of the Defendants: Nil 30.01.2018 jv R.SUBRAMANIAN,J.
jv To The Sub Assistant Registrar, Original Side, High Court, Madras.
Pre Delivery Judgment C.S.No.610 of 2013 30.01.2018