Madras High Court
T.V.Sammanthan vs V.Gnanasekaran on 29 November, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.659 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.11.2024
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.659 of 2018
and
C.M.P.No.18023 of 2018
---
1. T.V.Sammanthan
2. V.Gunasekaran ... Plaintiffs/Appellants
Versus
1. V.Gnanasekaran
2. V.Panneerselvan
3. V.Valli
4. Smt.Vijaya ...Defendants/Respondents
Appeal Suit filed under Section 96 of Code of Civil Procedure r/w.
Order 41 Rule 1 of CPC against the decree and Judgment passed by the
learned Additional District Judge (Fast Track Court), Arani in O.S.No.27 of
2017, dated 27.07.2018.
For Appellants : Mr.S.V.Devasanthi
For Respondent : Mr.K.V.Sundararajan
for Mr.M.Murali
JUDGMENT
This Appeal Suit had been filed to set aside the decree and Judgment passed by the learned Additional District Judge (Fast Track Court), Arani in O.S.No.27 of 2017, dated 27.07.2018.
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2. The learned Counsel for the Appellants submitted that the Appellants are the Plaintiffs in O.S.No.31 of 2010 on the file of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani. The suit was filed for the relief of partition.
3. As per the plaint averments, the suit properties are the ancestral properties of the father of the Plaintiffs. In the year 1981, there was a partition in the family between the father and grand father. The Plaintiffs trace the title of the suit property through Velapandithar. Velapandithar and his three sons were in joint possession as co-parceners. Velapandithar died in the year 1960 leaving behind his wife, three sons and daughter Kanniammal. In the year 1981, there was a registered partition, in which “B” schedule property was allotted to the father of the Plaintiff and Defendant Viswanatha Pandithar. In the “B” schedule property, there were 4 items which were the Plaint schedule properties in O.S.No.31 of 2010 on the file of the learned Additional District Judge, Tiruvannamalai. Subsequently, it was re-numbered as O.S.No.27 of 2017 on the file of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani.
4. It is the submission of the learned Counsel for the Appellants that Item 2 was sold by the father of the Plaintiff and Defendants along with Page 2 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 Defendants 1 and 2. Also, the father of the Plaintiffs and Defendants had executed a settlement deed in favour of the Defendants 1 and 2 regarding Item
3. Item 4 was purchased by the father of the Plaintiffs in the name of the Defendant-2.
5. It is the contention of the learned Counsel for the Appellants that Item 4 was purchased in the name of the Defendant-2 by the father of the Plaintiffs and Defendants with the income derived from the ancestral properties of the father of the Plaintiffs and Defendants. Therefore, the Items 1 to 4 are having the nature of ancestral properties. Therefore, the Plaintiffs 1 and 2 sought relief of partition of the suit properties of Item 1 to 4.
6. After full trial, the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani by judgment dated 27.07.2018 granted preliminary decree for partition of the properties only regarding the relief in respect of Item No. 1 and dismissed the suit with regard to Items 2 to 4.
7. It is the further contention of the learned Counsel for the Appellants that the Defendants are claiming exclusive possession of Items 3 and 4 based on the settlement deed in favour of the Defendants 1 and 2. Also Page 3 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 after granting of preliminary decree, the Defendants 1 and 2 were putting up construction in the Item 1 of the property. Therefore, at the time of admission of this Appeal, the Appellant had filed C.M.P. 18023 of 2018 seeking injunction against the Defendants 1 and 2.
8. Since the Appeal itself is ripe for disposal, the Appeal had been taken up. The learned Counsel for the Appellants seeks to set aside the Judgment of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani regarding Items 2 to 4 and to grant preliminary decree of partition of all the properties in Item 1 to 4.
9. The learned Counsel for the Respondents submitted that the Judgment of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani in O.S.No.27 of 2017 (previous No.31 of 2010 on the file of the learned Principal District Judge) dated 27.07.2018 is a well- reasoned Judgment which does not warrant interference by this Court.
10. It is the submission of the learned Counsel for the Respondents that the daughters had affixed their signature as witnesses to the sale deed executed by their father Viswanatha Pandithar. Out of the third item of the Page 4 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 property in which only an extent of 20 cents is remaining which he had settled in favour of his sons/Defendants 1 and 2. Apart from that, the second Defendant through his own independent income acquired the property in Item No.4.
11. The learned Counsel for the Respondents invited the attention of this Court to the issues framed by the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani and the discussions regarding the issues. Since the properties were sold during the lifetime of Viswanatha Pandithar, the father of the Plaintiffs and Defendants in which two sons affixed their signatures in item No.3 and 4 were excluded from the partition. He further submitted that the property in Item No.2 had already been sold during the pendency of the Suit. That was also available in evidence before the trial Court.
12. The learned Counsel for the Respondents invited the attention of this Court to the discussion of evidence by the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani in page 47 to 72 and submitted that the judgment is a well-reasoned judgment which does not warrant any interference by this Court and hence, he seeks to dismiss this Appeal as having no merits.
Page 5 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 Point for Determination Whether the trial Court has misdirected itself regarding the ancestral joint family property? Whether the Judgment of the trial Court granting 1/6 share is to be set aside as perverse?
13. Heard the learned Counsel for the Appellants and the learned Counsel for the Respondents.
14. Perused the deposition of the Plaintiffs witnesses viz., P.W-1 and P.W-2 before the trial Court and the documents under Ex.A-1 to Ex.A-4.
15. Perused the deposition of Defendant's witnesses viz., D.W-1 to D.W-4 and the documents marked as Ex.B-1 to Ex.B-14 and the Judgment of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani in O.S.No.27 of 2017 dated 27.07.2018.
16. On consideration of the rival submissions and on perusal of the Judgment of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani, it is found that the learned Judge had discussed the evidence available before the trial Court and in the light of the Hindu Succession Act interpreted the evidence found out that the sons of the Viswanatha Pandithar had sold properties along with the Viswanatha Pandithar. Therefore, Item No.1 of the property alone is available for partition Page 6 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 on the date of Judgment of the Suit and accordingly, dismissed the Suit as against Item Nos.2 to 4 and granted a preliminary decree for partition of 1/6 share in the suit properties regarding Item No.1 alone. From the discussion of the evidence in Paragraph Nos.7 to 11 is found well-reasoned Judgment. In the light of the materials available before the trial Court through the evidence of P.W-1 and P.W-2 and the evidence of D.W-1 to D.W-4 in the light of the documents marked on the side of the Plaintiffs viz., Ex.A-1 to Ex.A-4 and in the light of the documents marked on the side of the Defendants under Ex.B-1 to Ex.B-14, it is clearly observed that during the lifetime of the father of the Plaintiffs and Defendants Viswanatha Pandithar, the properties in Item Nos.2 to 4 were encumbered in which the Plaintiffs and the Defendants as sons and daughters of Viswanatha Pandithar had affixed their signatures indicating the consent for alienating the properties. Therefore, Item Nos.2 to 4 were not available for partition on the date of delivering the Judgment. Therefore, Item No.1 alone was the subject matter for partition and accordingly 1/6 share was granted. The Plaintiffs 1 and 2 are the sons of Viswanatha Pandithar and the Defendants 1 and 2 are also the sons of Viswanatha Pandithar. The Defendants 3 and 4 are the sisters of the Plaintiffs and Defendants and daughters of Viswanatha Pandithar. In the Appeal, the learned Counsel for the Appellants submitted that the dismissal of the Suit by the learned Additional Page 7 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 District Judge, Fast Track Court, Tiruvannamalai at Arani in O.S.No.27 of 2017, dated 27.07.2018 not considering Item No.4 which was settled in favour of the Defendants 1 and 2 by their father during his lifetime is erroneous. It is to be noted that after sale of the properties what was left only 20 cents and 20 cents was divided between the Defendants 1 and 2 on the ground that the Defendants had been maintaining their father. The Plaintiffs are residing in Chennai and this fact is recited in the settlement deed under Ex.B-11, Defendants 1 and 2, sons of Viswanatha Pandithar are residing in Tiruvannamalai and they are maintaining their father. Therefore, 20 cents was settled to them as 10 cents equally. As per settlement deed executed by the father/Viswanatha Pandithar under Ex.B-2 and Ex.B-3 dated 16.03.2007. The Plaintiffs had not sought any relief of declaration that the settlement deed executed by their father dated 16.03.2007 in favour of the Defendants 1 and 2 is to be declared as null and void and to bring it into common hotchpotch.
17. In the cross-examination, P.W-1 admitted that the Suit property is not an ancestral property. It is a self-acquired property of the father of the Plaintiffs. He also admitted that he and the second Plaintiff had executed the Power of Attorney deed in favour of Sulaiman to sell their 2/6 share in the Suit property under Ex.B-1 and he had sold the property to Mannu, S/o.Dakshinamoorthy. The execution of the Power of Attorney deed except Page 8 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 the sale of the property to Mannu, S/o. Dakshinamoorthy, the Plaintiffs claim ignorance. He had denied the suggestion that he had included the property for which he had executed the Power of Attorney to sell the property and also in the partition Suit. The suggestion that the father of the Plaintiffs had executed a settlement deed in favour of Panneer Selvam, the defence is denied by him. Therefore, in Item 2 of the Suit property, the Plaintiffs have no claim or right as they had executed the Power of Attorney deed regarding their 2/6 share in Item No.2 to be sold by Power of Attorney as per Ex.B-1.
18. Regarding Item No.3, since the father of the Plaintiffs executed the settlement deed in favour of Panneer Selvam and Gnanasekaran, they cannot claim any right is also denied by them. In the cross-examination, the first Plaintiff as P.W-1 admitted that the property was acquired by his father. While so, the suggestion that the father had executed a settlement deed in favour of Ramalingam and Gnanasekaran was also admitted. But the suggestion that the Plaintiffs does not have any right to claim partition in the Suit property in Item No.3 was denied by him. Even though denied by him, his denial has no legal basis, as the father of the Plaintiffs and the Defendants had acquired the property. It is a self-acquired property. After acquiring the property, he had executed the settlement deed in favour of the Page 9 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 Defendants/Paneerselvam and Gnanasekaran. For which, their father has all the rights to deal with the property as it is a self-acquired property which cannot be questioned by the Plaintiffs. Regarding Item No.3 of the property enjoyed by one Arumugam as tenant, the Plaintiffs had filed a Suit for eviction against Arumugam is admitted by the Plaintiffs suggestion by the learned Counsel for Defendants that the Defendants 1 to 4 had settled amicably with the tenant Arumugam which was also denied by him.
19. On perusal of the deposition of the P.W-2, Gunasekaran S/o. Viswanathan, it is found that in the cross examination he admits that Defendants 1 and 2 are his brothers and Defendants 3 and 4 are his sisters. He had not filed any document as proof of the claim that his paternal grand father Velapandithar had properties in his name. He admits in his cross examination that his father Viswanatha Pandithar had acquired the property in Item 2 of the suit properties as per sale deed dated 25.09.1962 and his father, grand father, uncles were all eking their livelihood as hairdressers as a family occupation and item 1 of the suit properties was acquired by his father Vishwanatha Pandithar as per sale deed dated 05.06.1972. The suggestion that the father of the Plaintiff and Defendants Vishwana Pandithar executed the settlement in favour of Defendants 1 and 2 and they are enjoying the property as such till Page 10 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 the date of the suit was denied by him in cross examination. The suggestion that item 4 of the property was purchased by 2nd Defendant as per sale deed dated 05.07.2000 was also denied by him. The suggestion that the 2nd Defendant had purchased the item-4 of the property out of his own income and the father had not contributed anything was also denied by him. The P.W-2 admitted that he and the first Plaintiff had jointly executed power of attorney deed regarding their undivided share in favour of one Sulaiman in the year 2013. Based on power of attorney deed executed by Plaintiffs 1 and 2, Power of Attorney Agent Sulaiman had sold their share of the property. The said suggestion was denied. Sale alone denied. Execution of Power of attorney deed was admitted by P.W-1 as well as P.W-2. The suggestion that the property for which power of attorney was executed had been sold is known to the Plaintiffs but wantonly evaded the suggestion by claiming ignorance was also denied by him.
20. On perusal of Ex.A-1, it is found that 'A' schedule is allotted to Swaminatha Pandithar. 'B' schedule property in the name of Vishwanathan, the father of the Plaintiff and Defendant. B Schedule property S.No.485 (0.50 cents), S.No.1214/A2 (0.62 cents), S.No,1214/A3 (0.39 cents), S.No.1214/A5 (1.73 cents) and the Gramma Natham in S.No.236 with boundaries. Page 11 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018
21. On perusal of the plaint, it is found that the Plaintiff had not sought prayer to declare the settlement in favour of the Defendants 1 and 2 by the father of the plaintiff and Defendants as null and void. Therefore, the properties that were settled in favour of the Defendants 1 and 2 by the father of the Plaintiff and Defendants is treated as self-acquired property and in enjoyment of the Defendants 1 and 2. Therefore it is the self-acquired properties. Therefore what was conclusion arrived by the learned trial Judge, the learned Additional District Judge that the Plaintiffs are entitled to partition only in Item 1 is found justified from the answers in cross examination of Plaintiff-1 as P.W-1 and Plaintiff-2 as P.W-2. Since the Plaintiff had instituted the suit for partition, by the time the suit was instituted, the Hindu Succession Act was amended whereby the Daughters are also entitled to claim partition in the properties either as joint family property or in the self-acquired property of the father whereby father died intestate. Here, the father died intestate in 2009. Therefore, when Vishwanatha Pandithar had Plaintiffs and Defendants as his children. The 1/6 share has to be allotted to each of the legal heirs of the Vishwanatha Pandithar. Therefore, the judgment of the learned Additional District Judge is found proper. It cannot be treated as perverse. Page 12 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018
22. The contention of the learned Counsel for the Appellant that the sisters did not claim a share. Therefore, the allotment of share of 1/6 is not justified cannot be accepted in the light of the reported decision in the case of Vineetha Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1.
23. On perusal of the discussion of the evidence by the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani is found well reasoned judgment as per the reported decision of the Honourable Supreme Court in the case of Vineetha Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1 in granting shares to the daughters of Vishwanatha Pandithar. Therefore, the judgment of the leaned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani, is not found perverse.
24. Therefore, the discussion of evidence by the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani and on the basis of evidence rejecting the claim of the Plaintiffs seeking partition of property in Item Nos.2 to 4 is found justified. It is a well-reasoned Judgment. It does not warrant any interference by this Court. As per Ex.B-4, the property was purchased by Defendant-2 out of his own income. Therefore, the same was not included in the Suit for partition as per the discussion of evidence by the Page 13 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani.
25. In short, the reasoning of the learned Additional District Judge, Fast Tack Court, Tiruvannamalai at Arani is not found perverse warranting interference by this Court. What is available on the date of Judgment is only Item No.1 of the Suit property and considering the fact that the Plaintiffs 1 and 2 and Defendants 1 to 4 are sons and daughters of Viswanatha Pandithar. As per the Hindu Succession Act as amended in the year 2005 and the Suit having been filed in the year 2010, subsequent to the enactment of Hindu Succession Amendment Act, 2005, the daughters who are the Defendants 3 and 4 are also entitled to relief of partition. They are to be treated as co-parceners. The Courts in India are to take judicial notice of the Acts passed by the Parliament or Legislature. Therefore, taking notice of the same, the learned Additional District Judge, Tiruvannamalai at Arani had rightly declared the share as 1/6, as the daughters of Viswanatha Pandithar are also entitled to share in the property. The claim of the Appellant that granting preliminary decree of 1/6 share is erroneous is not acceptable in the light of the Hindu Succession Act as amended in 2005 and in the light of the ruling reported in (2020) 9 SCC 1 in the case of Vineetha Sharma Vs. Rakesh Sharma. Therefore, the submission of the learned Counsel for the Appellants is rejected in the light of the well- reasoned Judgment of the learned Additional District Judge, Fast Track Court, Page 14 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 Tiruvannamalai at Arani. The submission of the learned Counsel for the Respondents is found justified. In the light of the evidence available before the learned Additional District Judge through the certified copies of the sale deed executed in the name of Viswanatha Pandithar under Ex.B-11 to Ex.B-
14. The learned Additional District Judge had observed in Paragraph No.11 that the second Defendant had independent source of income through his Hair Dressing Saloon. Therefore, the property acquired by him under Ex.B-4 is a self-acquired property dated 05.07.2000. The contention of the learned Counsel for the Appellants that the learned District Judge failed to grant relief of partition regarding the properties under Ex.B-2 to Ex.B-4 and to grant 1/4 share to the Plaintiffs instead of 1/6 is perverse is also rejected. The daughters are also entitled to the relief of partition as per the Hindu Succession Act, amended in 2005. Therefore, the finding of the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani in the concluding Paragraph that the claim of the Plaintiffs regarding Item Nos.2 to 4 is rejected and the Suit is dismissed and the Suit is decreed in respect of Item No.1 alone by granting preliminary decree for 1/6 share and not 1/4 share as sought by the Plaintiffs. The daughters are also entitled to partition along with the brothers/sons of Viswanatha Pandithar.
26. The judgment of the learned Additional District Judge, Fast Track Page 15 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 Court, Tiruvannamalai dismissing the Suit of the Plaintiff regarding Item 2 of the property. Item 2 of the property was a building measuring 9 ½ X 150 ft. for which the Tenant had filed RCOP seeking permission of the Court to deposit rent into the Court. The Plaintiff and the Defendants together were arrayed as Respondents in the pending RCOP, the Defendants 1 and 2 paid Rs.2,00,000/- out of Court settlement and evicted the tenant from the premises. Therefore, in the written statement filed by Defendants 1 and 2, they claim that the Plaintiff is also entitled to share in the property, particularly Item 2 also, provided the Plaintiff share of Rs.2,00,000/- is to be paid to Defendants 1 and 2. In the course of the judgment, the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani, had dismissed the suit of the Plaintiff regarding the claim of the Plaintiff to Item 2 of the property.
27. In the light of the above discussion, points for determination are answered against the Appellants/Plaintiffs. The Judgment and decree passed by the learned Additional District Judge, Fast Track Court, Tiruvannamalai at Arani in O.S.No.27 of 2017, dated 22.07.2018 is found proper which does not warrant any interference by this Court. Therefore, the same is to be confirmed. Page 16 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm ) A.S.No.659 of 2018 In the result, this First Appeal is dismissed. The decree and Judgment passed by the learned Additional District Judge (Fast Track Court), Tiruvannamalai at Arani in O.S.No.27 of 2017, dated 27.07.2018 is confirmed. Consequently, connected Miscellaneous Petition is closed. No costs.
29.11.2024 Index:Yes/No Internet: Yes/No Speaking Order/Non-speaking Order dh To
1. The Additional District Judge Fast Track Court, Tiruvannamalai at Arani.
2. The Section Officer, V.R. Section, High Court, Madras.
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dh Judgment made in A.S.No.659 of 2018 29.11.2024 Page 18 of 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/04/2025 10:47:37 pm )