Madras High Court
Palanisamy vs Chinnakandan @ Kandasamy on 28 August, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2012
C O R A M
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.575 of 2009
Palanisamy .. Appellant
vs.
1. Chinnakandan @ Kandasamy
2. Mohan
3. Venila
4. Punjab National Bank
Sankari West
rep.by its Branch Manager
Sankari West near the Cement Factory
Sankari Taluk .. Respondents
Appeal filed as against the judgment and decree dated 10.11.2008 passed by the learned Additional District Judge, Fast Track Court No.I, Salem in O.S.No.125 of 2006.
For Appellant : Mrs.Hema Sampath
Senior counsel for
Mr.G.Arul Murugan
For respondents : Mr.A.K.Kumarasamy
for Mr.S.Palanisamy
for RR1 and 2
R3- Mr.N.Balaji
No appearance
R4-No appearance
JUDGMENT
This appeal is focussed at the instance of the plaintiff as against the judgment and decree dated 10.11.2008 passed by the learned Additional District Judge, Fast Track Court No.I, Salem in O.S.No.125 of 2006.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this appeal would run thus:
a] The plaintiff/appellant herein filed the suit seeking the following reliefs:
To pass a decree in favour of the plaintiff and as against the defendants 1 to 3- A) directing the division of the suit 'A' and 'B' schedule properties into 6 equal shares by metes and bounds and allot one such divided share to the plaintiff and directing the defendants 1 to 3 to put the plaintiff in separate possession of one such divided share.
B) order appointing a Commissioner for the said purpose.
C) to direct the 2nd defendant to show accounts with regard to the net income derived by him from the PVC pipe manufacturing per year and directing the 2nd defendant to pay a sum of Rs.50,000/- per year to the plaintiff being his 1/6th lawful share from the said income from the date of suit.
D) to grant permanent injunction restraining the defendants 1 to 3 from alienating or encumbering the suit properties till partition is effected in the above suit and E) for costs.
(extracted as such)
b) D2 filed the written statement, which was adopted by D1. D3 filed the written statement supporting the case of the plaintiff. D4 being the Bank is a formal party, who also filed the written statement.
c) The trial court framed the relevant issues.
d] During trial, the plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A43. On the defendants' side, the first defendant examined himself as D.W.1 along with DW2 and marked Ex.B1.
e] Ultimately, the trial court dismissed the suit.
4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiff has preferred this appeal on various grounds.
5. The relationship among the parties is an admitted one. D1-Chinnakandan @ Kandasamy's son is the plaintiff -Palanisamy; D2-Mohan and D3-Venila are the children of the plaintiff-Palanisamy.
6. The earlier genealogy put forth before the trial court by both sides would run thus:
(i) According to both sides, one Chinnamottaiyan @ Sengoda Gounder happened to be the original propositus, who owned some of suit properties as his self-acquired properties. Chinnamottaiyan @ Sengoda Gounder's wife is Kozhandhayee Ammal. The couple had two children, viz., D1-Chinnakandan @Kandasamy and PW2-Periyakandasami.
(ii) Pithily and precisely, tersely and briefly, the case of the plaintiff before the trial court would run thus:
Chinnamottaiyan @ Sengoda Gounder died during the year 1947 leaving behind his two sons, viz., D1-Chinnakandan @ Kandasamy and PW2-Periyakandasami; whereupon both of them were entitled to half share each in the suit properties. Subsequently, P.W2 along with his minor sons, represented by the said Kozhandhayee Ammal got his half share sold in favour of one Kalianna Gounder. Subsequently, D1 purchased the said property, purchased by the said Kalianna Gounder and those properties are also part and parcel of the suit properties including the half share of D1 to which, he was originally entitled to. The plaintiff is entitled to = share; whereas D1 is entitled to another half share in the suit properties; inasmuch as the plaintiff is having two children as stated supra, the plaintiff claims in the entire suit property his 1/6th share.
(iii) Per contra, the case of D1 and D2 before the trial court would be as under:
Consequent upon the death of Chinnamottaiyan @ Sengoda Gounder subsequent to 1956, D1 became the Class-I heir as per Hindu Succession Act, 1956 of his father and he became the absolute owner of the suit properties along with his brother PW2 and some of the properties were allotted to the share of D1 and as such, he became the absolute owner of them. He subsequently purchased some other items of the suit properties.
Accordingly, D1 and D2 prayed for the dismissal of the suit.
7. The fact remains that D1 and D2 are sailing together and D4 is only the financier for enabling D2 to run factory business. However, the trial court in fact refused to accept the theory of the plaintiff that the original propositus Chinna Mottaiyan @ Sengoda Gounder died during the year 1947, so to say, anterior to the commencement of the Hindu Succession Act, 1956 and consequently, believed the theory of D1 and dismissed the suit as though during the life time of D1, his son-the plaintiff is having no right over the self-acquired properties of D1.
8. The learned senior counsel for the plaintiff would put forth and set forth her arguments, which could pithily and precisely be set out thus:
a) The lower court despite Ex.A43 the death extract of the said Chinnamottaiyan @ Sengoda Gounder, which would reveal that he died on 07.09.1947, on flimsy grounds refused to place reliance on the same.
b) No doubt, PW2-the brother of D1 might plead ignorance about it. But the law is clear on that point that mere production of birth or death extract could be taken as evidence. But the lower court failed to place reliance on it and that alone resulted in the dismissal of the suit.
c) The parties went on trial with certain set of facts and accordingly, if viewed, based on Ex.A43, consequent upon the death of Chinnamottaiyan @ Sengoda Gounder during the year 1947, the properties which D1 got from his father could only be termed as his ancestral properties and not his self-acquired properties and that too when D1 has got his son Palanisamy-the plaintiff herein.
Accordingly, she would pray for decreeing the suit as prayed for.
9. Per contra, in a bid to extirpate, torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for D1 and D2 would pyramid his argument, which could succinctly and precisely be set out thus:
(i) The lower court on sound reasons rejected Ex.A43. The plaintiff did choose to get Ex.A43 marked at the fag end of the trial and that too after getting the trial re-opened, through PW2, who would without minching words plead ignorance about Ex.A43. In such a case, by no stretch of imagination, it could be taken that Ex.A43 marked through PW2, should be construed as a piece of evidence for deciding the serious partition suit.
(ii) Simply because, here a little, there a little some sketchy and patchy evidence to the effect that the plaintiff along with D1 and other parties joined with D2 for the purpose of enabling D2 to avail loan from the Bank, that it does not mean that D1 acknowledged that the properties are the joint family properties as pleaded by the plaintiff.
(iii) It is a common or garden principle that Banks at the time of issuing loan would insist upon various formalities; unless the parties do comply with such mandates, they would not be able to avail loan at all. Under such circumstances alone, the plaintiff and D1 to D3 all signed such mortgage deeds created in favour of the D4 concerning some of the suit properties and that it does not mean that those properties are all joint family properties.
(iv) Absolutely, there is no defect in the judgment and decree of the trial court and accordingly, he would pray for confirming the judgment and decree passed by the trial court.
10. In the course of argument, when this court raised certain queries both sides pulling no punches, unassailably and unarguably admitted the axiomatic and obvious facts to the effect that Chinnamottaiyan @ Sengoda Gounder's wife Kozhandhayee Ammal died only during the year 1987; that the couple had four children, viz., PW2-Periyakandasamy; Pappayee Ammal, the wife of the Kalianna Gounder; D1-Chinnakanthan @ Kandasamy; and Kaliammal. In all fairness, both sides at the final hearing of this appeal would present the current genealogy, which would reveal as under:
Mottaiyan alias Sengoda Gounder Kozhandhayee (died 1987)
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Periyakandasamy Pappayee Chinnakanthan Kaliammal (PW2) [died 2009] [died 2007] @ Kandasamy (D1)__________ Kaliannan Palanisamy [died 2003] [plaintiff] Krishnan Mani Mohan Venilla (D2) (D3) Shivani
As such, this court raised the query as to what was the property rights of Kozhandayee Ammal in respect of the suit properties when she died during the year 1987.
11. The learned senior counsel for the plaintiff would submit that this court need not probe into all those details as to what was the property rights of Kozhandhayee Ammal in respect of the suit schedule properties, when she herself for almost 30 years after the death of her husband kept quiet without laying claim over it and even ouster and laches on her part could be attributed and neither of the parties also raised any issue in that regard. According to the learned senior counsel for the plaintiff, there are no pleadings as well as evidence regarding Kozhandhayee Ammal's property rights.
12. Whereas, the learned counsel for D1 and D2 would convincingly submit the law point that this court's consideration towards the property rights of Kozhandhayee Ammal, is having bearing on this partition suit de hors the pleadings of the parties, as the court in loco parentis, in a partition suit has to consider all the facts coming to lime light and accordingly apply the law and decide the lis.
13. The learned senior counsel for the plaintiff would submit that the said Kozhandhayee Ammal figured as a guardian for the minor children of PW2 along with PW2 while selling the half share of PW2 in the joint family properties, which originally belonged to D1 and PW2 and in such a case, she consciously relinquished or surrendered her right and she never had even an iota or shred of interest in laying claim over the suit properties and in such a case, it would be quite unnecessary for the court to probe into all those aspects.
14. Whereas the learned counsel for D1 and D2 would submit that once Kozhandhayee Ammal had certain rights as on the date of the death of Chinnamottaiyan @ Sengoda Gounder himself, necessarily those facts should be taken into account in the partition suit and the necessary parties also should be added.
15. The points for consideration are as under:
1. On what date Chinnamottaiyan @ Sengoda Gounder died and whether Ex.A43 could be taken as a valuable piece of evidence to prove his date of death?
2. Whether Kozhandhayee Ammal, the wife of Chinnamottaiyan @ Sengoda Gounder had any property rights in the properties left behind by her husband Chinnamottaiyan @ Sengoda Gounder in view of the Hindu Women's Right to Property Act, 1937 and also the Madras Hindu Women's Rights to Property (Extension to Agricultural land) Act, 1947, If so, what should be her share and on her death during the year 1987 what should have happened legally to her share in the suit properties?
3. What is the effect of Ex.A33 wherein Kozhandhayee Ammal having represented the minor children of PW2 in selling the property along with PW2 in favour of Kalianna Gounder and whether such participation by Kozhandhayee Ammal in Ex.A33 could be construed as one that of she having relinquished or surrendered her right in respect of her share in the properties concerned?
4. Whether the contention of the defendants 1 and 2 that all the suit properties are deemed to be self-acquired properties of D1 is tenable?
5. Whether the plaintiff is entitled to any share in the suit properties and if so, what should be the quantum?
6. Whether there is any perversity or illegality in the judgment and decree of the trial court?
Point No.1:
16. The learned senior counsel for the plaintiff inviting the attention of this court to Section 17(2) of the Registration of Births and Deaths Act, 1969, which is extracted here under for ready reference:
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MAINTENANCE OF RECORDS AND STATISTICS
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Search of births and 17. 17.(1) Subject to any rules made in this deaths register behalf by the State Government, including rules relating to the payment of fees and postal charges, any person may -
(a) (a) cause a search to be made by the Registrar for any entry in a register of births and deaths; and
(b) (b) obtain an extract from such register relating to any birth or death;
Provided that no extract relating to any death, issued to any person, shall disclose the particulars regarding the cause of death as entered in the register.
(2) All extracts given under this section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in Section 76 of the Indian Evidence Act, 1872, and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates.
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would develop her argument that mere production of Birth or Death Extract before the court could be taken as evidence as per Section 76 of the Indian Evidence Act, 1872.
17. Whereas the learned counsel for D1 and D2 would submit that surprisingly and dubiously after the closing of the trial, the matter was got re-opened at the instance of the plaintiff and through PW2, the said Ex.A43 was marked; even though PW2 pleaded ignorance of it.
18. At this juncture, I would like to indicate that law will prevail over the technical defects in marking the document. Special excludes the general. Generalia specialibus non derogant Things general do not restrict things special. Accordingly, the special provisions of law viz., Section 17(2) of the Registration of Births and Deaths Act, 1969 would contemplate that such death extracts would constitute evidence as per Section 76 of the Indian Evidence Act, 1872. When such is the legal mandate of the legislation, Ex.A43 cannot be thrown away or belittled on the sole ground that PW2 did not speak about it. Once it is a public document and the special enactment governing the same specifically mandates the admissibility of the document in a court of law, the ignorance pleaded by PW2 would not nullify the evidentiary value of Ex.A43.
19. I would like to observe that the defendants cannot try to hide elephants in mouse holes. This matter has been heard for months together and at that time opportunities were also given to the defendants to produce contra evidence so as to torpedo and pulverise the genuineness of Ex.A43 and absolutely nothing was forthcoming from the defendants' side to doubt the genuineness of Ex.A43. It is therefore palpably and pellucidly clear that the trial court totally misdirected itself and nullified the valuable right of the plaintiff, in dismissing the suit. Ex.A43 is an admissible piece of evidence and the plaintiff clearly without any doubt established that the said Chinnamottaiyan @ Sengoda Gounder died only on 07.09.1947.
Accordingly, Point No.1 is decided in favour of the plaintiff and as against the defendants.
Point Nos.2 to 4:
20. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.
21. The paramount and significant Hindu Law point concerning inheritance would be to the effect that had a male Hindu died before commencement of the Hindu Succession Act, 1956 leaving behind his self acquired properties, that would be deemed to have been inherited by his sons and grandsons. Even though theoretically one could wax eloquence, virtually and practically there was no distinction in regard to its incidents and characteristics between such inherited properties and co-parcenery properties among the male descendants of the original owner.
22. In this connection, I would like to extract here under the relevant portion from the following Hindu Laws:
(i) Mayne's Hindu Law and Usage, 14th Edition at page Nos.620, 621 and 624.
"287. Son's right by birth in father's property It follows from the conception of unobstructed heritage (Apratibandha Daya) and of the son's right vested by birth that an undivided son takes not only the paternal grand father's property but also the property acquired by his father not strictly by inheritance but by virtue of his right by birth from the date of his conception and only as unobstructed heritage (Apratibandha Daya).
For, there are only two divisions of inheritance, obstructed and unobstructed. The male issue do not succeed by inheritance to unobstructed property; and the texts relating to obstructed heritage do not refer to sons but only regulate succession to the property of a man who dies sonless. ................
288. Equal right in grandfather's property The result therefore is that while the son has a right by birth both in his father's and in his grand father's property, a distinction under a special text makes the right of the son and the father equal in the property of the grand father. That text is: "the ownership of the father and the son is the same in land, a corrody or wealth received from the grandfather. ..........
292. Ancestral Property The second question is as to what is meant by coparcenary property. The first species of coparcenary property is that which is known as ancestral property. That term, in its technical sense, is applied to property which descends upon one person in such a manner that his male issue acquire certain rights in it as against him. For instance, if a father under Mitakshara law is attempting to dispose of property, we inquire whether it is ancestral property. The answer to this question is that property is ancestral property in the father's hands if it has been inherited by him as unobstructed property, that is not ancestral if it has been inherited by the father as obstructed property. The reason of this distinction is that, in the former case, the father had an effective vested interest in the property, before the inheritance fell in, and therefore his own issue acquired by birth a similar interest in that interest. Hence, when the property actually devolved upon him, he took it subject to the interest they had already acquired. But in the latter case, the father had no such interest in the property, before the descent took place; therefore, when what even occurred, he received the property free of all claims upon it by his issue, and a fortiori, by any other person. Hence, all property which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself in coparcenary with his own male issue. In view of Section 8 of the Hindu Succession Act it has been held the property inherited by the son as Class I heir from his father will be the self acquired property in the hands of the son. When he has no male issue, the sister will inherit the property as separate property. But where he has inherited from a collateral relation, as for instance from a brother, nephew, cousin or uncle, it is not ancestral property in his hands in relation to his male issue; consequently his male issues have no equal rights as coparceners. ........."
(ii) N.R.Raghavachariar's Hindu Law Principles and Precedents Nineth Edition at Page Nos.212 and 213:
"243. Coparcenary Property"- Coparcenary property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and (4) separate property of the coparceners thrown into the common stock. The non-state private properties in the hands of the Ruler of Princely State of Baroda was of his absolute ownership with no one having a right or interests whatsoever [AIR 1996 Guj.72].
244. Ancestral Property: The term "ancestral property", which is a technical term having a special meaning, does not mean proeprty inherited from any ancestor, male or female, paternal or maternal, near or remote, but only such property as is inherited by a male from father, father's father and father's father's father [Atar v. Thakar, L.R.35 I.A.206: I.L.R.35 Cal.1039: 6 I.C.721: 18 M.L.J.379: 10 Bom.L.R.790; 12 C.W.N.1049 (P.C.); Mohamed Hussain v. Babu Kishva Nandan, 46 L.W.1: 1937 M.W.N.683: (1937) 2 M.L.J.151; Venkateshwarlu v. Raghavalu, 1955 An.W.R.39; Budhraj v. Bhan Zarlal, A.I.R.1954 Ajmer 69.Cf., Naragand Prabhu v. Janardhana Mallan, 1973 Ker.L.R.665]. Such inheritor's son, son's son and son's son's son get an interest in it by birth and can interdict improper alienations by the inheritor, whose position in respect of that property, though it will otherwise be absolute, is reduced, in the presence of such descendants, to that of an owner with restricted rights [Chuttan Lal v. Kallu, I.L.R. 33 All.283: 8 A.L.J.15; 8 I.C.719' Jugmohandas v. Mangaldas, I.L.R. 10 Bom.528; Mahomed Hussain v. Babu Kishva Nandan, supra]. The circumstance that the property has been inherited from one of such three immediate paternal ancestors after the interposition of a life tenure created by that ancestor in his wife's favour does not take away the character of the property as ancestral and the inheritor's lineal male descendants upto the third degree will get an interest in it by birth [Beni Parshad v. Puran Chand, I.L.R. 23 Cal.262; Nanabhai v. Achratbai, I.L.R.12 Bom.122]. Nor does the circumstance that the property, when it was with the ancestor from whom it was inherited was his self-acquired or separate property affect the question [Ram Narain v. Pertum Singh, 11 Beng.L.R.397; Madivalappa v. Subbappa, 39 Bom.L.R.895: AIR 1937 Bom.458; Shyam Behart v. Rameshwar, I.L.R. 20 Pat.904: AIR 1942 Pat.213; Mst.Ram Devi v. Mst.Gyarse, AIR 1949 All.545 (F.B.)]. Besides, it is absolutely immaterial whether the sons were born to the inheritor before or after the inheritance fell in. But if the property is inherited from a paternal ancestor beyond the third degree then the property is not ancestral as against the inheritor's sons, and the inheritor has absolute powers of disposal over it."
(iii) Mulla Hindu Law, 21st Edition 2010 at page Nos. 137 and 1071:
"43. Order of Succession among sapindas The sapindas succeed in the following order:
(1-3) Son, grandson (son's son) and great-grandson (son's son's son), and (after 14 April 1937) widow, predeceased son's widow, and predeceased son's predeceased son's widow - A son, a grandson whose father is dead, and a great-grandson whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self-acquired property of the deceased with rights of survivorship. ....."
The two systems of inheritance to the separate or self-acquired property of a male intestate, which hitherto prevailed under Mitakshara and Dayabhaga Schools, are abolished and a uniform system comes into operation as propounded in S.8. The three classes of heirs recognised by Mitakshara i.e. Gotraja Sapindas, Samanodakas and Bandhus and the three classes of heirs recognised by Dayabhaga, i.e., Sapindas, Sakulyas and Bandhus cease to exist in case of devolution taking place after the coming into force of the Act. The heirs are divided, instead, into four classes or categories. These are: (i) heirs in Class I of the Schedule; (ii) heirs in Class II of the Schedule; (iii) agnates; and (iv) cognates. The property devolves first on the 12 preferential heirs mentioned in Class I of the Schedule to the Act, and failing such heirs upon the second, third and fourth class of heirs in the order as regulated by SS 8 and 9. Before 1937, the 'simultaneous heirs' of a male Hindu dying intestate comprised only the son, the son of a predeceased son and the son of predeceased son of a predeceased son. The Hindu Women's Right to Property Act, 1937 added to the list the widows of the first two, as well as the intestate's own widow."
(emphasis supplied)
23. The learned senior counsel for the plaintiff would cite the judgment of Division Bench of this court reported in 68 LW 740 [Sivaramakrishnan vs. Kaveri Ammal and others].
24. A perusal of the said judgment would display and demonstrate that the said judgment do contain the incidents and characteristics of co-parcenary property and the property purchased out of the income from the co-parcenary property and also relating to the right of the son born after the purchase of the property by the father from out of the income of the joint family property and strictly the said judgment is not on the issue relating to inheritance.
25. It is therefore crystal clear that so far Hindu Law is concerned, it is crystal clear that grand son of a Hindu can claim right over his paternal grand father's property. The treatises on Hindu Law, viz., Mayne's Hindu Law and Usage, 14th Edition; Mulla Hindu Law, 21st Edition 2010; and N.R.Raghavachariar's Hindu Law Principles and Precedents Nineth Edition would unambiguously and unequivocally shed light on the fact that a grand son can claim right in his paternal grand father's property and such grand sons' father cannot claim exclusive right under the pretext of having inherited the property from his father.
26. Virtually speaking, so far the male descendants are concerned, there is no distinction between co-parcenery property and inherited property from a common male ancestor. Accordingly, if viewed, it is clear that in Sengoda Gounder's property, the plaintiff herein as the grand son of Sengoda Gounder is entitled to a share along with his father D1. No doubt, principle of per stirpes and not per capita is applicable and it is quite axiomatic and obvious. As such, the trial court was not justified in simply dismissing the suit.
27. In this factual matrix, it is just and necessary to consider the proper rights of Kozhandhayee Ammal, who admittedly died during the year 1987. I would like to extract here under the relevant portions of Section 3 of Hindu Women's Right to Property Act, 1937 (Act No.XVIII of 1937), which is applicable to non-agricultural properties and the Madras Hindu Women's Rights to Property (Extension to Agricultural land) Act, 1947, which is applicable to the properties other than the house property and 1947 Act is applicable even to agricultural properties.
Devolution of property
3. (1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Womans estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Succession Act, 1925, applies.
28. It is therefore clear that as on the date of the death of Chinnamottaiyan @ Sengoda Gounder, so to say, the original propositus, his wife Kozhandhayee Ammal was very much alive along with her two sons, viz., PW2 and D1 and as such the entire property of Chinnamottaiyan @ Sengoda Gounder should have been divided into three shares. I would like to fumigate my mind with the decision of the Hon'ble Apex Court reported in (1977) 3 SCC 99 [V.Tulasamma and others vs. Sesha Reddy (Dead) by Lrs.]. Certain excerpts from it would run thus:
"33. ...........This being the position where a Hindu female who gets a share in her husband's property acquires an absolute interest by virtue of Section 14 (1) of the Act, could it be intended by the legislature that in the same circumstances a Hindu female who could not get a share but has a right of maintenance would not get an absolute interest? In other words, the position would be that the appellant would suffer because her husband had died prior to the Act of 1937. If the husband of the appellant had died after 1937, there could be no dispute that the appellant would have got an absolute interest, because she was entitled to her share under the provisions of the Hindu Women's Right to Property Act, 1937. ............."
A mere running of the eye over the aforesaid precedent would exemplify that such limited estate of Kozhandhayee Ammal got enlarged into absolute right over the property by virtue of Section 14 (1) of the Hindu Succession Act, 1956. It is therefore crystal clear that Kozhandhayee Ammal had 1/3rd absolute right as full owner along with her two sons viz., PW2 and D1, who are entitled to the remaining 2/3 rd shares at the rate of 1/3 share each.
29. The core question arises as to whether it could be construed that Kozhandhayee Ammal relinquished or surrendered her rights in view of Ex.A33, in which she figured as the guardian for the minor children of PW2, along with PW2 for selling some portions of the suit properties in favour of Papayee's husband Kalianna Gounder.
30. The learned counsel for D1 and D2 would submit that the said Kozhandhayee Ammal did not surrender her rights and she only represented as the guardian of the minor sons of PW2 and by no stretch of imagination it could be construed that she consciously surrendered her right.
31. It is quite obvious and axiomatic that the plaint is very brief and cryptic and it is niggard and bereft of relevant lots and there are lot of facts, which have been suppressed.
32. I recollect and call up the following maxims:
(i) Suppressio veri suggestio false Suppression of the truth is equivalent to the suggestion of what is false.
(ii) Suppressio veri, expressio falsi Suppression of the truth is equivalent to the expression of what is false.
However, the court cannot throw the baby along with the bath water. This being a partition suit, the court in loco parentis should analyse the facts and apply the law and render justice.
33. Kozhandhayee Ammal, being a lady, cannot be expected to assert her right, independent of her two sons, viz., PW2 and D1 and that too when there is nothing to convey and portray that her sons were at logger heads with her.
34. In such a case, in the absence of any express pleadings and proof, ouster cannot be assumed or presumed as against Kozhandhayee Ammal and her 1/3rd share in the suit properties should be honoured in true spirit of the Hindu Women's Right to Property Act, 1937 and the Madras Hindu Women's Rights to Property (Extension to Agricultural land) Act, 1947 and Section 14(1) of the Hindu Succession Act, 1956 as otherwise that would amount to doing violence to the Women's Right to Property.
35. The punctilious of court procedure are not for being flouted but the same cannot be pressed into service for denying the valuable rights of women. Technicalities are hand mades of justice and that cannot be used for the purpose of thwarting the Women's Right over the property under any pretext. Simply because the plaintiff did not plead the real facts that it does not mean that the court should close its eyes and simply decide with the available materials. Once this court being the appellate court has come across admitted factual position and genealogy, certainly this court has to swing into action and mandate the necessary steps to be undertaken.
36. At times, parties might not be able to see the wood for trees but still the court has to do justice cutting across technicalities. I recollect the legal adage that every trial is a voyage, in which quest for truth is the goal as found highlighted in the following precedents of the Hon'ble Apex Court:
(i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] Certain excerpts from it would run thus:
"36. In Ritesh Tiwari and another vs. State of Uttar Pradesh and others,2010(10) SCC 677, this court reproduced often quoted quotation which reads as under:
"Every trial is voyage of discovery in which truth is the quest".
37. This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB 55 has observed that:
"In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries."
39. Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest." In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
51. In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth."
(ii) 2010(10) SCC 677 [Ritesh Tiwari and another vs. State of Uttar Pradesh and others]. Certain excerpts from it would run thus:
"37. Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. "Every trial is voyage of discovery in which truth is the quest". Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and Zahira Habibulla H.Sheikh vs. State of Gujarat].
37. Nevertheless PW2 sold his purported half share in the joint properties along with his minor children represented by Kozhandhayee Ammal and, it cannot be construed that she surrendered or relinquished her 1/3 rd share.
38. A doubt might arise as to what would be the effect of Ex.A33 on the share of Kozhandhayee Ammal. As has been already pointed out supra she did not relinquish her share and consequent upon the death of Chinnamottaiyan @ Sengoda Gounder, the properties devolved upon Kozhandhayee Ammal and her two sons. As such, her 1/3 rd share should be taken as the one remaining in tact. If Ex.A33 is construed as the one capable of extinguishing the rights of Kozhandhayee Ammal that would amount to nullifying the provisions of Section 17 of the Registration Act, 1908.
39. Ubi jis ibi remedium is the maxim. The said Kozhandhayee Ammal in the absence of any evidence to establish and indicate that she was ousted from her 1/3 rd share, there is no question of depriving her of her right over it. It is an undisputed fact that Kozhandhayee Ammal died during the year 1987 leaving her 1/3 rd share in the joint property and as such as per Section 15 of the Hindu Succession Act, 1956 r/w Class I of the Schedule of it, her four children, viz., Periyakandasami(PW2), Papayee, Chinnakanthan @ Kandasamy (D1) and Kaliammal were all deemed to be entitled to < th share each in that 1/3 rd share and as such her 1/3 rd share should be divided into four shares and allotted to her four children at the rate of < share each. In fact, the genealogy presented before the court would reveal and spotlight that Papayee died during the year 2007 leaving behind her two sons, Krishnan and Mani; as such those sharers, who have been left out also should be added in the suit and their moities should be allotted to them.
40. The next significant question arises as to what legal effect Ex.A33 would have on PW2-Periyakanthan's 1/3 rd share in the joint property. In this connection, I would like to extract the relevant portion from his deposition:
@ //////////////////gpd;dpl;L v';fSf;Fs; ey;y cwt[ ,Ue;j nghJk; 1951 k; tUlk; ehDk; vd; jk;gpa[k; tha;bkhHpahf v';fSf;Fs; mDruida[ld; mst[fs; tpj;jpahrk; ghh;f;fhky; ghfg;gphptpid bra;Jf; bfhz;nlhk;/ mg;nghJ thjp gpwe;J tpl;lhh;/ vGj;J K:ykhd ghfg; gphptpid Mtzk; Vw;gLj;jtpy;iy/ mt;thW vdf;F gphpe;j ghf brhj;Jf;fis ehd; 1957 k; tUlk; vd; ikj;Jdh; fhspaz;z ft[z;lUf;F tpw;W tpl;L bghk;kpof;F ngha; tptrha epy';fs; th';fp thH;e;J tUfpnwd;@/ (emphasis supplied) A plain reading of the said extract would clearly connote and denote that he out of the sale proceeds obtained under Ex.A33 purchased some other properties and once and for all he got himself detached from his 1/3 rd share.
41. It is an undisputed fact also that D1 in fact by virtue of Ex.A34 purchased the property from Kalianna Gounder himself and as such that was brought back to the common stock. Since PW2 already detached himself as the co-parcener as an erstwhile sharer, he cannot claim any right in the suit property in that capacity. However, in the 1/3rd share of Kozhandhayee Ammal, he is entitled to < th share as her Class I heir.
42. In order to disambiguate the ambiguity if any, I have highlighted supra the intricacies involved in dividing the properties.
43. The learned counsel for D1 and D2 would try to canvass the point to the effect that since D1 purchased the property from Kalianna Gounder as per Ex.A34, it should be construed only as his self-acquired property and it cannot be made available for Palanisamy, the son of D1 to claim any right as a co-sharer with his father.
44. Absolutely, there is no iota or shred, shard or miniscule, jot or pint of evidence to show that D1 had independent source of income to purchase such property under Ex.A34. In fact D1 and his descendants constituted a separate group, i.e., a small coparceners within a larger group, which emerged on the death of Chinnamottaiyan @ Sengoda Gounder.
45. The learned counsel for D1 and D2 would submit that the second and third items of the suit properties in the B schedule of the plaint are all out and out the self-acquired properties of D1 because those properties were not purchased by Sengoda Gounder and in fact, it is the case of the defendants 1 and 2 that D1 had run a lorry business and from and out of that, he earned income and purchased the properties. Even though in the evidence, the plaintiff would faintly depose as though he was also co-operating with his father in lorry business, there is no evidence.
46. A mere running of the eye over the evidence would reveal that on D1's and D2's side, no record relating to the running of the lorries were filed; the copies of RC Books etc also also were not filed; the accounts relating to such running of lorries have not been produced.
47. On the other hand, my findings supra would indicate and display that in a larger family D1 and his descendants constitute a separate group, i.e.. a small coparcenery and in that D1 is deemed to be the Kartha. Whatever D1 acquired as Kartha would enure to the benefit of his children also and the presumption is to the effect that whatever the property acquired by the Kartha having income bearing joint nucleus with him, would lead to the inference that such properties acquired by him happened to be the co-parcenery properties.
48. It might be argued to the effect that there should be precise evidence that there was sufficient income derived from the joint family nucleus. Scarcely, could it be stated that those ancestral properties were not yielding sufficient income at all. The very description of the 'A; schedule property and the first item in the "B" scheduled property of the plaint would clearly display and establish that from and out of such properties, there is no gain-saying or denying of the fact that income was not at all derived. Wherefore, antithetical to the presumption against the Kartha, he himself cannot try to canvass that the second and third items of the suit properties in the "B" Scheduled happened to be his self-acquired properties.
49. As such, whatever D1 as Kartha of the smaller group i.e.. the small co-parcenery acquired by purchases in undivided status, would enure to the benefit of his son Palanisamy. However, it would not in any way enlarge the 1/3 rd share of Kozhandhayee Ammal, who had nothing to do with such purchases and in fact, she had no role to play in such purchases. However, she participated as guardian for the minor sellers under Ex.A33. As such, the property purchased by D1 will enure to the benefit of D1 and his descendants and D1 alone cannot to the exclusion of his descendants claim any exclusive right over it.
50. In view of the aforesaid findings, it is glaringly and pellucidly clear that the creation of mortgages by the members of the family concerned in favour of D4-Bank in executing the mortgage deeds Exs.A35 and A36, is only for the purpose of establishing that the properties are joint family properties and now in view of my discussion supra, it is quite obvious and axiomatic that they all signed meaningfully as persons having interest in the family property and their jointness is writ large.
51. In view of the ratiocination adhered to supra in deciding the aforesaid points, the entire suit properties should be divided at the first instance into 2/3 rd shares and 1/3 rd share. The 1/3 rd share, which represents the share of Kozhandhayee Ammal has to be divided into four shares and each such < th share should be allotted as follows:
1. Periyakanthan PW2 - < share
2. Krishnan and Mani sons of Papayee (deceased) - < share
3. Chinnakanthan @ Kandasamy(D1) - < share
4. Kaliammal - < share The said remaining 2/3 rd shares in the suit properties should be divided broadly into two equal shares and each such share should be allotted to the plaintiff in his representative capacity of himself and his two children and that the remaining such share in the 2/3 rd share, should be allotted to D1. The half share of the plaintiff in the 2/3 rd shares, which he got in his representative capacity should be divided further into three shares and each such share should be allotted to the plaintiff, D2 and D3 respectively. Accordingly the above formula emerged.
52. In view of the fact that PW2-Periyakanthan, Papayee's legal heirs, viz., Krishnan and Mani and Kaliammal are not parties to the suit; similarly D2-Mohan's daughter Shivani is also not added as a party' they all should be added as parties to the suit.
53. As such, in view of the aforesaid findings and that the aforesaid persons are not parties to the suit, straightaway preliminary decree could not be passed. Hence, I would like to remand the matter back to the trial court with the aforesaid findings and direction setting aside the judgment and decree of the trial court, so as to enable either of the parties to take steps to implead those sharers, who have not already added been as parties for the purpose of passing preliminary decree on the aforesaid line as mandated by me.
54. In the result, this appeal is allowed and the matter is remitted back to the trial court, which shall do well to see that within a period of four months from the date of receipt of a copy of this order, the matter is disposed of. Both sides shall appear before the trial court on 27.09.2012 and they should co-operate with the trial court in impleading the parties and for passing preliminary decree on the aforesaid formula.
28.08.2012 vj2 Index : Yes Internet: Yes To The Additional District Judge, Fast Track Court No.I, Salem G.RAJASURIA,J., vj2 A.S.No.575 of 2009 28.08.2012