Madras High Court
Kanthasamy vs Annammal : 1St on 28 March, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2014
CORAM :
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.No.299 of 2000
and
CMP No.13933 of 2000
1.Kanthasamy
2.Rangasamy : Appellants/Defendants 1 & 2
Vs.
1.Annammal : 1st respondent/plaintiff
2.Rajendran : 2nd respondent/3rd defendant
Appeal Suits filed under Section 96 of CPC against the Judgment and decree, dated 31.03.1999 passed in Original Suit Nos.199 of 1995 by the Sub Court, Namakkal.
For Appellants : Mr.G.T.Subramanian
For 1st Respondent : Mr.P.Mathivanan
JUDGMENT
The defendants 1 and 2 in O.S.No.199 of 1995 on the file of the Sub Court, Namakkal, are the appellants.
2.The plaintiff filed a suit for partition and separate possession of the suit properties.
3.The case of the plaintiff is as follow:-
The plaintiff is the daughter of the first defendant. The marriage between the first defendant and the mother of the plaintiff Rajammal, took place in the month of Vaikasi of the year 1959 and the first defendant was living along with the first plaintiff's mother at the residence of the plaintiff's mother at Mela Goundan Valasu. The first defendant insisted that the property in the name of the plaintiff's grand-mother should be settled on him and that was not accepted by the plaintiff's grand-mother Chinnakkal. Therefore, misunderstanding arose between the first defendant and his mother-in-law and enraged by the behaviour of the first defendant, the mother-in-law of the first defendant, namely Chinnakkal sold the half share of her property to one Komara Goundar. Enraged by the same, the first defendant left the family in October 1959. Thereafter, the plaintiff's mother got re-conveyance of the half share from Komara Gounder and she became the absolute owner of the property. The first defendant neglected the mother of the plaintiff and contracted illegal 2nd marriage in the year 1962. The defendants 2 and 3 are the children born to the first defendant through the second wife. The plaintiff's mother was living with her mother and she was not having any issue at that time and therefore, she executed a Will on 14.09.1976 in favour of her uncle and his children in respect of the properties owned by her. On coming to know the same, the first defendant approached the mother of the plaintiff and compromised to live with her and the mother of the plaintiff also insisted the first defendant to live with him as husband and wife and in the year 1977, the plaintiff was born. When the plaintiff was conceived the first defendant insisted the mother of the plaintiff to abort the child stating that he was having two male children through his second wife and that was not accepted by the plaintiff's mother and therefore, the first defendant left the plaintiff's mother and started to live with the second wife. On 30.02.1978, the plaintiff was born and the first defendant never visited the plaintiff or her mother and the plaintiff approached the first defendant and claimed share in the ancestral properties in the hands of the first defendant and the first defendant was not prepared to give half share in the properties. It is stated that as per Hindu Succession Act (Tamil Nadu Amendment) Act, the plaintiff is entitled to half share in the ancestral property in the hands of the first defendant. As the first defendant refused to give the same, the plaintiff sent a notice on 06.08.1993 and that was replied by the first defendant making untenable allegations.
4.In the reply notice, it is contended by the first defendant that there was a partition on 09.09.1977 between himself and the defendants 2 and 3 and therefore, the plaintiff cannot claim any partition and also mesne profit. The plaintiff alleged that the defendants 2 and 3 cannot claim any right over the properties as the properties are the ancestral properties in the hands of the first defendant and the defendants 2 and 3 are the illegitimate children born to the 2nd wife during the subsistence of the first marriage and therefore, the plaintiff is entitled to half share and for that purpose, the suit was filed.
5.The first defendant filed a statement and the same was adopted by the 2nd defendant. It is stated that the first defendant married the second wife with the consent of the first wife Rajammal, as Rajammal was not having any children through the first defendant and after marring the second wife, both of them lived together in the same house and the defendants 2 and 3 were born and on 11.01.1976, the first wife Rajammal gifted certain properties in favour of the defendants 2 and 3 describing the first defendant as guardian. Therefore, the mother of the plaintiff always lived with the first defendant and the defendants 2 and 3 are the legitimate children and there was a partition among the defendants on 09.09.1977 and the properties were divided and therefore, Hindu Succession (Tamil Nadu Amendment), Act, cannot be applied and the plaintiff is not entitled to claim any share in the properties and the properties were allotted to the first defendant in the partition deed on 09.09.1977. It is also stated that the partition deed, dated 09.09.1997 is a valid one.
6.On the basis of the above pleadings, the following issues were framed by the trial court:-
(1)Whether the plaintiff is entitled to claim half share and separate possession in the suit properties?
(2)Whether the defendants are liable to render accounts for mense profit?
(3)Whether there was a partition among the defendants on 09.09.1997?
(4)To what relief, the plaintiff is entitled to?
7.On the side of the plaintiff, she and her mother were examined as PW1 and PW2 and three documents were marked. On behalf of the defendants, the first defendant was examined as DW1 and also examined one witness as DW2 and three documents were marked.
8.The trial court tried the issue Nos.1 and 3 together and held that the defendants 2 and 3 were born to the first defendant through his second wife during the subsistence of marriage between the first defendant with Rajammal, the mother of the plaintiff and partition deed on 09.09.1977 among the defendants was not a genuine one and the defendants cannot claim any right under the partition deed, dated 09.09.1977 and the plaintiff, being the daughter of the first defendant, through his first wife and the properties are the ancestral properties, the plaintiff is entitled to half share and the plaintiff is entitled to claim separate possession and answered the issue Nos.1 and 3 answered in favour of the plaintiff and also answered Issue No.2 in favour of the plaintiff holding that the same can be agitated under the provisions Order 20 Rule 12 CPC. In the result, the suit was decreed as prayed for and a preliminary decree was passed declaring half share in the suit properties in favour of the plaintiff and the defendants were directed to give account for mense profit. Aggrieve by the same, this Appeal Suit is filed.
9.It is submitted by the learned counsel for the appellants that the first defendant married the mother of the defendants 2 and 3 with the consent of the mother of the plaintiff and that was also proved by the defendants through Ex.B3, the settlement deed executed by the plaintiff's mother in favour of the defendants 2 and 3 in respect of her properties and therefore, even though the defendants 2 and 3 are the children through his second marriage, they cannot be characterized as the illegitimate children and therefore, they are entitled to a share in the property.
10.He also submitted that the first defendant entered into a partition deed Ex.B1 with the 2nd and 3 defendants and divided the properties even in the year 1977 and therefore, the plaintiff cannot file a suit for partition as the properties were already divided among the defendants. He also submitted that the first defendant being the 'Kartha' of the family has settled the properties on his legitimate children and he entered into the partition deed with the defendants 2 and 3 and as per the partition deed, the defendants 2 and 3 undertook to discharge the various loans availed by the first defendant and in consideration of that, properties were allotted to their share and the partition deed was acted upon and mutation was also effected in the name of the defendants 2 and 3 and DW2 also corroborated the evidence of DW1 regarding the partition and therefore, the plaintiff is not entitled to claim partition.
11.He also relied upon the judgment reported in 1993(2)LW 559 in the case of Subbaraya Pillai alias Subbaraya Manthiri and another vs. Lakshmiammal and others, wherein the Hon'ble Division Bench of this court, discussed the power of Kartha of the Hindu Family to give properties, even to his illegitimate children and dismissed the scope of section 16(1) of the Hindu Marriage Act and the Hon'ble Division Bench has also held a children born through the second marriage is also entitled to claim partition and therefore, the suit for partition is not maintainable.
12.On the other hand, the learned counsel for the 1st respondent/plaintiff submitted that the settlement deed was obtained from the plaintiff's mother by practicing fraud and she was not a consenting party and the plaintiff's mother was examined as PW2 and she also explained the reason for executing of Ex.B3 settlement deed and it is also admitted by DW1 that against the wishes of the plaintiff's mother, he married the second wife as the plaintiff's mother was not having any issue at that time and he also admitted that he and the first wife are not living together. He, therefore, submitted that defendants 2 and 3 cannot be considered as the legitimate children of the first defendant and they are to be considered as the legitimate children only for the limited purpose viz., inheriting the share of the first defendant and they cannot claim any claim in the ancestral properties. Admittedly, the properties were ancestral properties in the hands of the first defendant and by virtue of the Hindu Succession (Tamil Nadu Amendment) Act, the plaintiff became entitled to equal share along with her father and therefore, she is entitled to half share.
13.The learned counsel for the 1st respondent/plaintiff further submitted that the trial court rightly held that Ex.B1 partition deed was not given effect and was not acted upon and it was created to defeat the right of the plaintiff. He also submitted that as per the partition deed, certain debts were allotted to the share of the defendants 2 and 3 and the properties were given to them on the assurance that they would discharge the loans incurred by the first defendant and admittedly, at the time of execution of Ex.B1, the defendants 2 and 3 were minors and they were represented by the maternal grand-father and no proof was adduced by the defendants 2 and 3 for discharging those loans and they have not entered into the box to give evidence and therefore, the trial court has rightly held that Ex.B1 was created to defeat the rights of the plaintiff. Therefore, no interference is called for with respect to such finding.
14.He also submitted that DW2 admitted that he was not a witness to the partition deed and therefore, he is not competent to speak about the partition deed. He also submitted that Ex.B1 cannot be relied upon to arrive at a conclusion that there was a partition between the first defendant, on the one hand and the defendants 2 and 3 on the other hand and having regard to the finding that Ex.B1 was crated to defeat the rights of the plaintiff, no relief can be granted on the basis of Ex.B1.
15.He also relied upon the judgments reported in 1952(2)MLJ 5251 (SC) in the case of Our Narain Das and another vs. Gur Tahal Das and others and 2003(1) SCC 730 in the case of Jinia Keotin and others vs. Kumar Sitaram Manjhi and others, in support of his contention that illegitimate children cannot claim any right over the ancestral properties of the father.
16.He also relied upon the judgment reported in (2011)11 SCC 1 : 2011(2) CTC 810 in the case of Revanasiddappa and another vs. Mallikarjun and others and submitted that though in the judgment, the Hon'ble Supreme court referred to the point, whether a child born to the second wife, whose marriage is otherwise valid is entitled to inherit the ancestral property of the father, to the Larger Bench.
17.In the judgment reported in (2003) 1 SCC 730, the Hon'ble Supreme court held that no relief can be claimed by the illegitimate children to the father's ancestral property. He, therefore, submitted that the defendants 2 and 3 cannot claim any right under the partition deed and the partition deed was created and therefore, the judgment and decree of the trial court has to be confirmed.
18.On the basis of the above submissions, the following points for consideration arise in this Appeal Suit:-
1.Whether the Partition Deed Ex.B1 is true, valid and acted upon?
2.Whether the defendants 2 and 3 are entitled to claim any share in the suit properties in the absence of any partition deed?
3.Whether the first defendant was entitled to enter into a partition deed with the defendants 2 and 3 and allot certain properties to them?
19.The trial court held that Ex.B1 Partition Deed cannot be accepted and no document was produced by the defendants to prove that the loans incurred by the first defendant were discharged by the defendants 2 and 3.
20.It is seen from Ex.B1 Partition Deed that the defendants 2 and 3 were minors at that time and the minors were given properties, as the first defendant incurred debts over the properties and the minors, namely the defendants 2 and 3 were directed to discharge the loans mentioned in the schedule 'B' to the Partition Deed and enjoy the properties allotted to them.
21.It is also admitted that the properties are the ancestral properties in the hands of the defendants and the defendants 2 and 3 are the sons of the first defendant. Therefore, a reading of Ex.B1 would make it clear that for the purpose of discharging the loans incurred by the first defendant, the Partition Deed was brought into effect and the loans have to be discharged by the defendants 2 and 3 and as a consideration for the same, they would take the properties allotted to them.
22.As rightly contended by the learned counsel for the 1st respondent and held by the trial court, no proof regarding the discharge of loans stated in the 'B' schedule was adduced by the defendants and DW1/the first defendant also admitted in evidence that the discharged promissory notes are with the sons, but no attempt was made by the defendants 2 and 3 to produce the discharged promissory notes to prove that Ex.B1 is a genuine one.
23.It is also made clear by the 1st defendant in his reply notice Ex.A3, wherein he has stated clearly that he effected a partition in respect of the joint family properties on 09.09.1977 and therefore, the claim of the plaintiff, as per section 29(A) of the Hindu Succession Act is not maintainable, as the properties were divided. Therefore, I concur with the findings of the trial court regarding Ex.B1 and I hold that Ex.B1 was created only for the purpose of defeating the right of the plaintiff and Ex.B1 was not acted upon.
24.Accordingly, the point Nos.1 to 3 are answered against the appellants .
25.Though in the judgment reported in 1993(2) LW 559, the Hon'ble Division Bench of this court has held that a children born through the second marriage is entitled to claim share in the ancestral property, even after the amendment of section 16 of the Hindu Marriage Act, the law has been settled by the Hon'ble Supreme Court in the judgment reported in (2006)9 SCC 612, in the case of Neelamma and others vs. Sarojamma and others, relying upon the judgment reported in (2003)1 SCC 730, in the case of Jinia Keotin vs. Kumar Sitaram Manjhi, wherein it is held as follows:-
5.So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, 'any rights in or to the property to any person, other than, the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court re-legislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.
26.In the judgment reported in AIR 2010, SC 2685 in the case of Bharatha Matha & another vs. R.Vijaya Renganathan & others, the same view was taken following the judgment reported in (2003)1 SCC 730 in the case of Jinia Keotin & Others vs. Kumar Sitaram Manjhi & others and (2006)9 SCC 612 in the case of Neelamma and others vs. Sarojamma and others.
27.Therefore, as per the aforesaid judgments of the Hon'ble Supreme Court, a son born through the second marriage is a legitimate son only for the purpose of claiming share in the father's property and he is not entitled to claim any share in the ancestral property of the father and therefore, the plaintiff, being the daughter of the first defendant, through the first wife, is entitled to claim half share in the property. Therefore, the trial court has rightly held that the plaintiff is entitled to half share, I do not find any reason to interfere with the the judgment and decree of the trial court.
28.In the result, the Appeal Suit is dismissed and the judgment and decree of the trial court are confirmed. Consequently, connected Miscellaneous Petition is closed. No costs.
Index:Yes/ 28.03.2014 Internet:Yes/ er To, The Sub Court, Namakkal. R.S.RAMANATHAN, J er judgment made in A.S.No.299 of 2000 and CMP No.13933 of 2000 28.03.2014