Madras High Court
P.Muruganantham vs Sivanammal on 10 March, 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.02.2022
DELIVERED ON : 04.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.132 of 2016
and C.M.P(MD)Nos.9200 of 2016, 1650 and 1651 of 2022
P.Muruganantham .. Appellant/Defendant
Vs.
Sivanammal ... Respondent/Plaintiff
Prayer : This Appeal Suit is filed under Section 96 of the Civil
Procedure Code r/w Order XLI Rule 1 of C.P.C, against the judgment
and decree passed in O.S.No.96 of 2013 on the file of the Principal
District Court, Tirunelveli, dated 10.03.2016.
For Appellant : Mr.S.Ramesh
for Mr.V.Raghavachari
For Respondent : Mr.Ananth C.Rajesh
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JUDGMENT
This Appeal Suit has been preferred challenging the judgment of the
learned Principal District Judge, Tirunelveli, dated 10.03.2016 in
O.S.No.96 of 2013. The appellant is the defendant.
2. The plaintiff in the suit is the sister of the defendant. The plaintiff has
filed the suit stating that the suit properties belonged to their father
N.Ponnaiah and he was in possession and enjoyment of the same. The
said Ponnaiah died on 04.12.2008 leaving behind his wife
Deivanaiammal, son/ the defendant herein and daughter/the plaintiff
herein as his legal heirs. So, each of the legal heirs became entitled to
1/3rd share. The mother of the plaintiff Deivanaiammal settled her 1/3rd
share in favour of the plaintiff by way of a registered sale deed dated
25.03.2009 and put her in possession. The settlement is accepted by the
plaintiff as well. The defendant started to give disturbances to the
plaintiff's joint possession of the properties. After exchanging legal
notice between the parties, the plaintiff has filed the suit for partition of
2/3 share and separate possession.
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3.The defendant contested the suit by stating that the plaintiff was given
jewels and other Shridhana articles during her marriage; since the
defendant did not have any permanent income, he alone collected rent
from the tenants of the suit property and due to some misunderstanding
between himself and his mother, his mother executed a settlement deed
in respect of her 1/3 share in favour of the plaintiff on 26.03.2009;
however the plaintiff has not accepted the same; she had given assurance
to the father that she would not claim any share in the family properties;
on 31.01.2012, the mother Deivanaiammal registered a cancellation of
the settlement deed dated 25.03.2009 and executed another settlement
deed on 19.02.2012 in favour of the defendant; the defendant accepted
the properties given to him by virtue of the settlement deed dated
19.02.2012; the plaintiff has no share in the suit property and hence, she
is not entitled to get a decree as prayed for.
4. Based upon the abovesaid pleadings, the learned trial Judge has
framed the following issues:
i) Whether the plaintiff has 1/3 share in the suit properties
after the demise of her father Ponnaiah?
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ii) Whether the Settlement Deed dated 25.03.2009 executed
by Deivanaiammal in favour of the plaintiff is valid and
acted upon?
iii) Whether the cancellation deed dated 31.01.2012
executed by Deivanaiammal cancelling the settlement deed
dated 25.03.2009 is true and valid?
iv) Whether the Settlement Deed dated 19.04.2012 executed
by Deivanaiammal infavour of the defendant is true and
vlaid?
v) Whether the plaintiff is entitled to partition of 2/3 share
and separate possession of the suit properties?
vi) To what relief the plaintiff is entitled to?
5. During the course of trial, on the side of the plaintiff, two witnesses
were examined as P.W.1 and P.W.2 and Ex.A.1 to Ex.A.8 were marked.
On the side of the defendant, two witnesses were examined as D.W.1 and
D.W.2 and forty three documents were marked as Ex.B.1 and Ex.B.43.
6. At the conclusion of the trial and on considering the evidence available
on record, the learned trial Judge had passed the preliminary decree for
partition and separate possession of the plaintiff's 2/3share in the suit
schedule property. Aggrieved over that, the defendant has preferred this
Appeal Suit.
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7. During the course of arguments, the learned counsel for the appellant
submitted that so far as items 1 to 4 of the suit properties are concerned,
they are ancestral properties and items 5 and 6 are the properties
purchased by the defendant's father by virtue of a registered sale deed;
but it was from the income earned by both the defendant and his father;
since item Nos.1 to 4 are the ancestral properties of the defendant's
father, the mother of the plaintiff has got no right to settle 1/3 share in the
above properties in favour of the plaintiff; further, the settlement deed is
not acted upon; the learned trial Judge, without considering these vital
aspects of the case, had wrongly passed the preliminary decree for
partition in respect of 2/3 share in the suit properties and hence, the
appeal should be allowed. In support of his submission, the learned
counsel for the appellant relied on the judgment of the Hon'ble Supreme
Court of India in Rohit Chauhan Vs. Surinder Singh and others
reported in (2013) 9 Supreme Court Cases 419.
8. The learned counsel for the respondent/plaintiff submitted that even at
the time of executing the settlement deed dated 25.03.2009, the
properties in item Nos.1 to 4 were held by the plaintiff's mother as a
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share inherited from her husband's property; items 1 to 4 had lost its
ancestral nature after they had been allotted to the share of her husband
in the family partition dated 24.12.1958; since the father of the plaintiff
died intestate, the plaintiff's mother, the plaintiff and the defendant would
inherit 1/3 share in the suit property; hence, the settlement deed executed
by the mother of the plaintiff in respect of her 1/3 rd share in favour of the
plaintiff is valid and enforceable.
9. In the light of the rival submissions of the parties, the following points
for consideration are relevant to decide this Appeal Suit:
i) Whether the mother of the plaintiff Deivanaiammal has
got 1/3 rd right in whole of the suit properties in order to
execute a settlement deed in favour of the plaintiff?
ii) Whether the executant of the settlement deed dated
25.03.2009 namely Deivanaiammal has got the right to
cancel the settlement deed dated 25.03.2009 by virtue of
executing a cancellation deed dated 21.03.2012?
iii) Whether the defendant is entitled to the suit properties
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by virtue of another settlement deed dated 19.04.2012?
iv) Whether the preliminary decree passed by the learned
trial Judge by allotting 2/3 rd share in the suit property is
legally correct and valid?
10. The relationship between the appellant/defendant and the respondent/
plaintiff as brother and sister was not denied. The fact that the suit
properties belonged to the father of the parties to the suit is also not in
dispute. The executant of the settlement deed dated 25.03.2009/Ex.A1
Deivanaiammal, is the mother of the respective parties. The respondent
claims her right and title towards 1/3rd of the suit properties by virtue of
inheritance and another 1/3 share in the suit properties by virtue of the
settlement deed dated 25.03.2009/Ex.A.1. The suit items 1 to 4 were the
properties allotted to the father of the parties to the suit namely Ponnaiah
by virtue of a partition deed dated 24.02.1958 entered into between the
joint family members. Item Nos.5 and 6 of the suit properties were the
self acquired properties of the deceased Ponnaiah by way of purchase
through the sale deeds dated 03.11.1967 and 17.08.1971. These facts
were also not denied by the appellant/defendant.
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11. It is claimed by the appellant/defendant that item Nos.1 to 4 of the
suit properties are ancestral properties and hence, his mother would not
have any right to settle 1/3rd share in favour of his sister/the respondent/
plaintiff. Since the character of the suit items 5 and 6 were not in dispute
and the father of the parties died intestate, it can be safely concluded that
the wife and children of the deceased are entitled to 1/3 share in
accordance with Sections 8 and 10 of the Hindu Succession Act. Despite
it is claimed by the appellant/defendant that he had contributed the sale
proceeds for the above said two purchases made by his father in respect
of items 5 and 6, the said fact was not proved. Hence, the wife and
children of the deceased Ponnaiah have got equal shares in respect of the
item Nos.5 and 6 purchased by him. Since the mother of the plaintiff has
got 1/3 share in respect of item Nos. 5 and 6, she is entitled to convey the
same by virtue of a registered settlement deed in favour of her daughter,
who is the plaintiff herein.
12. So far as item Nos. 1 to 4 of the suit properties are concerned, it is
claimed by the appellant/defendant that they are the ancestral properties
of his father and hence, his mother does not have any right to settle 1/3
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share in favour of the plaintiff.
13. The learned counsel for the respondent/plaintiff submitted that once
partition was effected and the shares have been allotted to the parties to
the partition deed, from then onwards, the properties allotted to the
respective sharers will become their respective self acquired properties.
In other words, it is submitted that items 1 to 4 had lost their ancestral
character subsequent to the partition dated 24.02.1958 and hence, they
have to be considered as the self acquired properties of the father of the
plaintiff and hence, in those items also, the wife and the children of
Ponnaiah will have equal share. So it is claimed by the respondent/
plaintiff that the mother of the respondent has got right to settle the 1/3
share in items 1 to 4 also in favour of her daughter.
14. In respect of the above contention, the learned counsel for the
respondent cited a decision of the Hon'ble Supreme Court of India in
Radha Bai Vs. Ram Narayanan and others reported in CDJ 2019 SC
5019. In the above said judgment, it is held that after partition, the joint
family properties would seize to be the ancestral property and the sharer
to whom the property was allotted in the partition would become its
exclusive owner.
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15. The learned counsel for the appellant submitted that the suit items 1
to 4 in the hands of the father of the defendant can be treated as a
separate property of his father only as against the other relatives, but, not
as against the defendant. It is further substantiated that when a son is
born, the property in the hands of his father which he got out of the joint
family partition should be treated as co-parcenery property of the father
and the son and in that case, the father would become the ‘kartha’. In
support of his contention, the learned counsel for the respondent cited the
decision held in Rohit Chauhan Vs. Surinder Singh and others
reported in 2013 (9) SCC page 419. In the said judgment, it is held as
under:
“We have bestowed our consideration to the rival
submissions and we find substance in the submission of
Mr.Rao. In our opinion coparcenary property means the
property which consists of ancestral property and coparcener
would mean a person who shares equally with others in
inheritance in the estate of common ancestor. Coparcenary is
a narrower body than the joint Hindu family and before the
commencement of the Hindu Succession (Amendment) Act,
2005, only male members of the family used to acquire by
birth any interest in the coparcenary property. A coparcener
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has no definite share in the coparcenary property but he has
an undivided interest in it and one has to bear in mind that it
enlarges by deaths and diminishes by births in the family. It
is not static. We are further of the opinion that so long, on
partition, an ancestral property remains in the hands of the
single person, it has to be treated as a separate property and
such a person shall be entitled to dispose of the coparcenary
property treating it to be his separate property but if a son is
subsequently born, the alienation made before the birth
cannot be questioned. But, the moment a son is born, the
property becomes a coparcenary property and the son would
acquire interest in that and become a coparcener”.
16. After Hindu Succession Amendment Act 2005, the daughter will
also become an equal co-parcener along with the son for the ancestral
properties. Even if the father of the appellant/defendant got the suit items
1 to 4 by virtue of a family partition, the character of the above properties
would continue to remain the same as against the plaintiff and the
defendants, who are co-parceners in their capacity as the son and
daughter.
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17. If a notional partition is operated, during the life time of the father of
the appellant/defendant, along with the plaintiff and the defendant, each
of them would get 1/3 share in items 1 to 4 of the suit properties. Since
the father of the appellant died intestate, his 1/3 share in items 1 to 4
would be succeeded by the plaintiff, the defendant along with the mother
in equal shares. Thus the plaintiff, the defendant and their mother would
inherit the father’s 1/3rd share equally among themselves as clause-I heirs
as per Sections 8 and 10 of Hindu Succession Act and get 1/9 each in
items 1 to 4. So the mother of the plaintiff would be entitled to only 1//9
share in items 1 to 4 and hence, she could convey only that much in items
1 to 4 in favour of the plaintiff by virtue of the settlement deed dated
25.03.2009.
18. As co-parcener along with the appellant/defendant and her father, the
plaintiff would be entitled to 1/3 share in items 1 to 4. After the demise
of her father, she would get 1/9 share along with the defendant and his
mother. By virtue of the settlement deed dated 25.03.2009, she would get
another 1/9 share in items 1 to 4. So the entitlement of the plaintiff in
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respect of the suit items 1 to 4 would be 1/3 + 1/9 + 1/9 = 5/9 and the
share of the defendant in respect of items 1 to 4 would be 1/3 + 1/9 = 4/9.
But the learned trial Judge has wrongly allotted 2/3 share in respect of
items 1 to 4. To that extent, the judgment and decree of the trial court
needs to be modified. Since Deivanaiammal has got 1/9 right only in
respect of items 1 to 4 and 1/3 share in respect of items 5 and 6, she
could execute settlement deed in favour of the plaintiff only in respect of
the said shares. Thus, point No.1 is answered.
19. However, it is claimed by the appellant/defendant that the settlement
deed Ex.A.1 did not come into force and it was subsequently revoked by
virtue of a cancellation deed dated 31.01.2012. The recitals of Ex.A.1
settlement deed would show that the executant did not reserve any right
to cancel the same at any future point of time. Since Ex.A.1 is an
unconditional settlement deed, the settlor does not have any right to
cancel the same and hence, the cancellation deed dated 31.01.2012
cannot have any legal validity. For the same reason, no legal validity can
be attached to the second settlement deed dated 19.04.2012 executed by
Deivanaiammal in favour of the appellant/ defendant. Thus point Nos.
2 and 3 are also answered against the appellant.
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20. It is claimed by the appellant/defendant that the settlement deed did
not come into force because of the non-acceptance of the same by the
plaintiff. At no point of time, it was stated by the respondent/plaintiff
that she did not accept the settlement made in her favour. In fact, on
01.06.2010 itself, the plaintiff has given a paper publication by asserting
her right over 3/2 share in the suit properties. Though it is claimed by the
appellant/defendant that the respondent/plaintiff had relinquished her
interest in the family properties, no release deed has been executed by the
respondent/plaintiff to that effect. Since it is proved before the trial court
that the mother of the plaintiff, namely, Deivanaiammal had got 1/9 share
in the suit items 1to 4 and 1/3 share in respect of items 5 and 6 and she
had executed a settlement deed in favour of her daughter/plaintiff, the
plaintiff is entitled to get 5/9 share in respect of items 1 to 4 and 2/3
share in respect of items 5 and 6, the learned trial court ought to have
passed a preliminary decree only in respect of the above shares in favour
of the plaintiff. Thus, point No.4 is answered.
In the result, this Appeal Suit is partly allowed and the judgment of the
learned Principal District Judge, Tirunelveli, dated 10.03.2016 made in
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O.S.No.96 of 2013 is modified to the extent that the preliminary decree
for partition is passed in favour of the plaintiff only in respect of 5/9
share in respect of items 1 to 4 and 2/3 share in respect of items 5 and 6
of the suit properties. No costs. Consequently, connected miscellaneous
petitions are closed.
04.03.2022
Index : Yes/No
Internet : Yes/No
CM
To,
1.The Principal District Court, Tirunelveli.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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R.N.MANJULA, J.
CM Pre-delivery Judgment in A.S(MD).No.132 of 2016 and C.M.P(MD)Nos.9200 of 2016, 1650 and 1651 of 2022 04.03.2022 16/16 https://www.mhc.tn.gov.in/judis