Madras High Court
S.Annapoorni Bai vs Subramaniam ... 9Th on 5 October, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.No.1332 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1332 of 2003
and
M.P.(MD)No.1 of 2010 & 1 of 2015
1.S.Annapoorni Bai ... Plaintiff / 1st Respondent / Appellant
2.N.Arulchandar ... Appellant
(R21 is transposed as 2nd appellant)
-Vs-
1.Subramaniam ... 9th Defendant / Appellant / Respondent
2.Vairavan (Died) ... 1st Defendant / 2nd Respondent / Respondent
3.Kulalamani (Died) ... 4th Defendant / 4th Respondent / Respondent
4.Nagarajan (Died) ...5th Defendant / 5th Respondent / Respondent
5.Rajamani (died) ... 6th Defendant / 6th Respondent / Respondent
6.Gandhi Bai ... 7th Defendant / 7th Respondent / Respondent
(R4 to R6 are recorded as Lrs of the deceased R3
vide order dated 26.03.2013 made in M.P.(MD)Nos.1 to 6 of 2013)
7.Ramachandran ... 8th Defendant / 8th Respondent / Respondent
8.Vaidyalingam (Died)
9.B.Kalavathy
10.K.Vasanthi
https://www.mhc.tn.gov.in/judis
1/14
S.A.No.1332 of 2003
11.R.Satheesh Kumar
(R9 to R11 are brought on record as LRS of the deceased 5th respondent
vide order dated 14.11.2016 made in M.P.(MD)No.1 of 2008)
12.V.Nagendran (Died)
13.R.Gomathi
14.R.Valliammal
15.R.Kamalam
(R12 to R15 are brought on record as Lrs of the deceased R2 as per
order dated 12.02.2019 in M.P.(MD)Nos.1 to 3 of 2013)
16.R.Krishnammal
17.K.Sankar
(R16 & R17 are brought on record as Lrs of the deceased R8
as per order dated 14.11.2016 in M.P.Nos.4 to 6 of 2013)
18.Kamala
19.N.Sankar
(R18 & R19 are brought on record as Lrs of the deceased R4 as per
order dated 12.02.2019 in C.M.P.(MD)Nos.2430 to 2432 of 2016)
20.N.A.Nagalatha (Died)
21.N.Arulchandar
(R20 and R21 are brought on record as Lrs of the deceased 12th respondent
vide order dated 17.07.2020 made in C.M.P.(MD)No.2349 of 2020)
(R21 is transposed as 2nd appellant)
22.Rajaram
23.Karthik
(R22 & R23 are brought on record as Lrs of the deceased 20th Respondent
vide order dated 26.08.2021 made in C.M.P.(MD)Nos.6826, 6827
and 6829 of 2021) ... Respondents
https://www.mhc.tn.gov.in/judis
2/14
S.A.No.1332 of 2003
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 28.03.2003 made in A.S.No.91
of 2000 on the file of the I Additional Subordinate Judge, Nagercoil,
reversing the judgment and decree dated 14.10.1998 made in O.S.No.1055
of 1985 on the file of the II Additional District Munsif, Nagercoil.
For Appellants : Mr.S.Parthasarathy
for Mr.K.Govindarajan
For R1 & R13 : Mr.T.S.R.Venkataraman
For R6, R14, R15,
R18 & R19 : Mr.G.Ramanathan
For R7 : Mr.T.Arul
For R9 to R11 : Mr.M.P.Senthil
For R22 & R23 : Mr.P.S.Ganesan
For R16 & R17 : no appearance
JUDGMENT
The plaintiff in O.S.No.1055 of 1985 on the file of the second Additional District Munsif, Nagercoil filed this second appeal.
2. The suit was one for partition. The suit schedule comprises two items. Item No.1 originally belonged to Rama Lakshmi and devolved on her daughter Deivanai and then on her daughter Saraswathi. The suit item No.2 originally belonged to Sivarama Krishnan and later devolved on his https://www.mhc.tn.gov.in/judis 3/14 S.A.No.1332 of 2003 son Palaniyandi. Saraswathy and Palaniyandi got married to each other and through the said wedlock, one Kulalamani was born. Kulalamani got married to Sivasooriyan. The genealogy is as under:-
Ramalakshmi (daughter) Deivanai Sivaramakrishnan (daughter) Son Saraswathy - Palaniyandi (daughter) Kulalamani – Sivasooriyan Vairavan D1/R2(dead) Nagarammal D2 (dead) Saraswathy D3(dead) Shankaran Vairavan D1/R2 (dead) Gomathi R13-Subramanian Valliammal R14-Ramachandran Kamalam Nagendran R12 (died) D9 (D.W.3) / R1 D8 (D.W.2)/R7 R15 -(P.W.1)Anna Poorani (Plaintiff) Nagalatha -R20(died) Arul Chandar(R21)
-Rajaram (originally R22) Now Appellant(transposed) https://www.mhc.tn.gov.in/judis 4/14 S.A.No.1332 of 2003 Now R21 Karthick (originally R23) Now R22 Nagarammal D2 (died) Subramanian D9 (D.W.3)/R1 Vaidyalingam (dead)R8
- Krishnammal R16 Shankari R17 Saraswathy D3 (died) Annapoorani (P1)-Nagendran (died) Shankaran Valliammal 1st Wife Kulalamani D4/R3 no issues Nagarajan Rajamani Gandhibai D5 (died) D6(died) R5 D7/R6
-Kamala R18 - Kalavathi (R9) Shankar R19 Vasanthi R10 Sathish Kumar R11 https://www.mhc.tn.gov.in/judis 5/14 S.A.No.1332 of 2003
3. It can be seen from the genealogy that Kulalamani and Sivasooriyan had two sons and two daughters. The plaintiff Annapoorani was born to Saraswathy. Her case was that Kulalamani died in the year 1959 intestate. Therefore, each of the four branches got 1/4th undivided share in both the suit items. But elder son Vairavan had sold the entire suit item No.2 in favour of his son-in-law Ramachandran/D8. In the same manner, the legal representatives of Shankaran who had pre-deceased Kulalamani wrongly sold the suit item No.1 in favour of the 9 th defendant Subramaniam. Therefore, apart from seeking partition of her 1/4th share in these two suit items, the plaintiff Annapoorani also sought declaration that both the sale deeds namely Ex.A7 and Ex.A8 should be declared as null and void. Saraswathy one of the daughters of Kulalamani executed settlement deed Ex.A1 dated 07.03.1985 in favour of the plaintiff. Based on the said deed of settlement, the plaintiff filed the said suit seeking the relief of partition and for nullifying the aforesaid two sale deeds. Most of the defendants filed written statements controverting the plaint averments. D8 Ramachandran in his written statement took the stand that Saraswathy died on 25.01.1956 and not in the year 1959 as claimed by the plaintiff. Based on the divergent pleadings, the trial court framed as many as 12 issues. One of the issues was whether Kulalamani died in the year 1959. The plaintiff's husband Nagendran was examined as P.W.1. Ex.A1 to Ex.A53 were https://www.mhc.tn.gov.in/judis 6/14 S.A.No.1332 of 2003 marked. On the side of the defendants, D6, D8 and D9 examined themselves as D.W.1 to D.W.3. Ex.B1 to Ex.B14 were marked. After a consideration of the evidence on record, the trial court declared that the offending sale deeds namely Ex.A7 and Ex.A8 are null and void. Preliminary decree was passed granting 1/4th share in the plaint schedule properties in favour of the plaintiff. Aggrieved by the same, the 9 th defendant Subramanian filed A.S.No.91 of 2000 before the first Additional Sub Court, Nagercoil. It is seen that Vairavan, legal heirs of Shankaran and Ramachandran jointly filed A.S(SR)No.5604 of 2000 before the District Court. It appears that the said appeal was filed with delay. To condone the delay, I.A.No.81 of 2000 was filed. During its pendency, Vairavan had passed away and proper steps were not taken and the said proceedings got abated in due course. In the result, only the first appeal filed by Subramanian was there. The said first appeal was allowed by the impugned judgment and decree dated 28.03.2003 by the first appellate court and the decision of the trial court was reversed and the suit came to be dismissed. Challenging the same, this second appeal came to be filed by the plaintiff.
4. The second appeal was admitted on the following substantial questions of law:-
“1.Whether the finding of the lower appellate court that the third defendant/mother of the appellant/plaintiff is not entitled to right to the suit https://www.mhc.tn.gov.in/judis 7/14 S.A.No.1332 of 2003 properties under Section 15 of the Hindu Succession Act, 1956 is correct in law?
2. Whether the finding of the lower appellate court that the appellant / plaintiff has not proved the allotment of properties by means of an oral partition in favour of her mother/3rd defendant is correct in law?” During the pendency of the second appeal, the original appellant Annapoorani passed away and her grandson who was figuring as R21 got himself transposed as the appellant to prosecute the appeal.
5.Heard the learned counsel on either side.
6.The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant and allow this appeal and set aside the impugned judgment and decree passed by the first appellate court and restore the decision of the trial court.
7.Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree do not call for any interference.
8.There can be no dispute that suit item No.1 devolved on Kulalamani from the maternal side and the suit item No.2 devolved from the paternal side. This devolution will have significance, if Kulalamani had died prior to coming into force of the Hindu Succession Act, 1956. Before https://www.mhc.tn.gov.in/judis 8/14 S.A.No.1332 of 2003 coming into force of the Hindu Succession Act, 1956, if the property had devolved on daughter from the paternal side, after her demise, it will revert back to the legal heirs of the father. If the property had devolved from the maternal side, it will be an absolute property in her hands and after her demise, it will devolve on her legal heirs. That is why, in the case on hand, if Kulalamani had died prior to coming into force of the Hindu Succession Act, 1956, item No.2 will devolve only her sons and two daughters namely Nagarammal and Saraswathy would not get any share therein. That is why, one of the defendants had contended that Kulalamani had died on 25.01.1956. The plaintiff on the other hand contended that Kulalamani had died in the year 1959. I must note that the evidence on either side in this regard is not satisfactory. I take it that neither of the parties have proved their respective contentions.
9.The learned counsel appearing for the respondents would contend that in such an event that this Court should invoke Section 101 of the Indian Evidence Act, 1872 and hold that the plaintiff had not proved her claim that Kulalamani died in the year 1959. On the other hand, the learned counsel for the appellant would contend that the suit being one for partition and all the parties remain in the same position and the question of casting burden of proof on a particular party would not arise at all. I do not agree with the https://www.mhc.tn.gov.in/judis 9/14 S.A.No.1332 of 2003 contention of the learned counsel for the appellant fully in this regard because the plaintiff had asked for nullifying the sale documents. At the same time, I am also not able to accept the contention of the learned counsel for the respondents that Section 101 of the Indian Evidence Act, 1872 is applicable.
10. In my view, the trial court had erroneously framed the issue as regards the death of Kulalamani. Section 107 of the Indian Evidence Act, 1872 reads as follows:-
107. Burden of proving death of person known to have been alive within thirty years:- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
11. Take inspiration from this provision, the case of the plaintiff can be projected to the effect that according to the plaintiff, Kulalamani was alive as on 25.01.1956. Some of the defendants particularly D8 had contended that Kulalamani was dead on the said date. Since as per Section 107 of the Indian Evidence Act, 1872, Kulalamani may be deemed to be have been alive on the said date, burden of proof would obviously shift on D8 to show that Kulalamani was dead on the said date. Since D8 had not https://www.mhc.tn.gov.in/judis 10/14 S.A.No.1332 of 2003 discharged the burden cast on him, it must be taken that Kulalamani was alive on the said date. There is no dispute that Kulalamani died intestate. Therefore, logical conclusion is that the suit items 1 and 2 devolved in equal shares on all the four children namely Vairavan, Nagarammal, Saraswathy and Shankaran. Since Shankaran had pre-deceased Kulalamani, 1/4th undivided share devolved on the legal heirs of Shankaran. This is further reinforced by Ex.A2 dated 22.01.1974. Ex.A2 is the order issued by the Additional Assistant Settlement Officer, Nagercoil, whereby the names of all the four branches were entered in the settlement patta. It is relevant to mention here that during the settlement enquiry, Vairavan as well as Nagarajan son of late Shankaran were examined as witnesses. Ex.A2 was not questioned in the manner known to law in any civil proceedings. Therefore, Ex.A2 had become final. Hence, the irresistible conclusion is that all the four branches had only 1/4th undivided share in both the suit items.
12. The original appellant Annapoorani sought two reliefs. One was for partition of her 1/4th share in the suit items. The other prayer was for nullifying Ex.A7 and Ex.A8. The suit was decreed as prayed for and both the sale deeds were nullified. Ex.A7 was executed by Vairavan in favour of Ramachandran. Vairavan elder son of Kulalamani had assumed that he was https://www.mhc.tn.gov.in/judis 11/14 S.A.No.1332 of 2003 entitled to deal with suit item No.2 as a whole. He had orally released a portion of the suit item No.2 in favour of Shankaran branch. He had sold the remaining two cents with the building in favour of Ramachandran under Ex.A7 dated 27.08.1984. The said sale deed had been nullified by the trial court. Questioning the same, Ramachandran along with Vairavan and others filed an appeal before the first appellate court. But the said appeal got abated and could not be prosecuted. Therefore, nullification of Ex.A7 has become final and the first appellate court could not have interfered with the same.
13. Ex.A8 was executed by the legal heirs of Shankaran in favour of the first respondent namely Subramanian. Under Ex.A8, Shankaran branch had sold two cents of land in suit item No.1 in favour of R1. Since I have come to the conclusion that each branch has only undivided 1/4th share in each of the suit items, the substantial questions of law are answered in favour of the appellant. The impugned judgment and decree passed by the first appellate court are set aside. The second appeal is disposed of as follows:-
(I) The present appellant Arulchandar is entitled to 1/8th undivided share in both the suit items. Rajaram and Karthick, husband and son of Nagalatha, will be entitled to 1/8th share in both the suit items by virtue of https://www.mhc.tn.gov.in/judis 12/14 S.A.No.1332 of 2003 being the legal heirs of the original plaintiff Annapoorani Bai.
(ii) Ex.A8 executed by the legal heirs of Shankaran in favour of Subramanian (R1 herein) is valid to the extent of vendor's 1/4 th undivided share. Subramanian and the legal heir of his sibling Vaidyalingam will be entitled to 1/4th undivided share in both the suit items in their capacity as legal heirs of Nagarammal.
(iii) The legal heirs of Vairavan will be entitled to 1/4th undivided share in both the suit items. The legal heirs of Shankaran will have 1/4 th undivided share in item No.2.
While working out their rights, the respective parties in the final decree proceedings will have to pay the adequate court fee for the shares to be allotted. No costs. Consequently, connected miscellaneous petitions are closed.
05.10.2021 Internet : Yes/No Index : Yes/No rmi To
1.The I Additional Subordinate Judge, Nagercoil.
2.The II Additional District Munsif, Nagercoil. Copy To The Section Officer, Vernacular Records, https://www.mhc.tn.gov.in/judis 13/14 S.A.No.1332 of 2003 Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN.J., rmi Judgment made in S.A.No.1332 of 2003 05.10.2021 https://www.mhc.tn.gov.in/judis 14/14