Madras High Court
M.Sornalatha vs M.S.Rukmini on 21 September, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
CS.No.382 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.08.2022
PRONOUNCED ON : 21.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
CS.No.382 of 2016
1. M.Sornalatha
2. Meenakshi Manickam
3. Rukmini Mahalakshmi Plaintiffs
Vs
1. M.S.Rukmini
2. S.Meenakshi
3. M.S.Karuppiah
Defendants
Prayer:- This Civil Suit has been filed, under Order VII Rule 1 of CPC, for
the reliefs as stated therein.
For Plaintiffs : Mr.T.M.Hariharan
for Mr.K.Sivasubramanian
For Defendants : Ms.K.Bhanumathi
JUDGEMENT
This Civil Suit has been filed, seeking a judgement and decree, for 1/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 partition and separate possession of the Plaintiffs' 1/3rd share in the A- Schedule property and 5/12th share in the properties mentioned in B-H Schedules and for costs.
2. The case of the Plaintiffs is that the Plaintiffs are the widow, son and daughter respectively of M.S.Muthuraman @ M.S.Palaniappan. The 1st Defendant is the mother of the said M.S.Muthuraman and the 2nd Defendant is the sister and the 3rd Defendant is the brother of the said M.S.Muthuraman. M.S.Muthuraman died intestate on 24.09.1995, leaving behind him the Plaintiffs and the 1st Defendant as his legal heirs. L.M.Rama Meenakshi Sundaram Chettiar is the husband of the 1st Defendant and he died intestate on 20.11.1997, leaving behind him the Plaintiffs and the Defendants as his legal heirs. Except the A-Schedule property, the other suit properties are either ancestral properties or acquired properties from and out of the ancestral nucleus by late L.M.Rama Meenakshi Sundaram Chettiar. The A-Schedule property belonged jointly to the Defendants 1 and 3 and late M.S.Muthuraman. The Plaintiffs are entitled to 1/3rd share each in the A-Schedule property. The B-Schedule property was purchased by late L.M.Rama Meenakshi 2/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 Sundaram Chettiar from and out of the joint family funds and the C- schedule property was purchased by late L.M.Rama Meenakshi Sundaram Chettiar using the joint family funds in the joint name of his wife, the 1st Defendant. The Plaintiffs are entitled to 5/12th share each in the B-H Schedule properties. The deceased also possessed of movable assets, such as, fixed deposit, shares, etc. By the order dated, 17.09.1998 in OP.No.338 of 1998, succession certificate in respect of the said movable assets in favour of the Plaintiffs was issued. By the order dated 21.08.2002 in OP.No.412 of 2001, succession certificate was issued in respect of the amount lying in the fixed deposit and the savings bank account, in favour of the Plaintiffs. The Defendants, as the Respondents in the said OP, did not object to such issuance of succession certificate. While applying for the legal heirship certificate, the Defendants had not included the Plaintiffs as the legal representatives. The Defendants are attempting to alienate the suit properties. The Plaintiffs are in joint possession of the suit properties. Several requests of the Plaintiffs for partition of the properties was refused by the Defendants. Hence, this Civil Suit has been filed, seeking the reliefs, as stated above.
3/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016
3. The case of the Defendants, as set out in the written statement, is that the relationship between the parties is correct. Prior to the suit, there were several rounds of negotiations. The Plaintiffs, in spite of knowing the particulars of the properties, have not chosen to include the same and hence, they have given up their right to claim any share. The Defendants are willing to pay a sum of Rs.4,25,666/- being the total value of the share of the Plaintiffs provided that the Plaintiffs give up their claim for partition in respect of the suit properties. L.M.Rama Meenakshi Sundaram Chettiar had started a leather business out of his own funds and not from the income from the joint family property. The Defendants had already furnished the details of all the properties to the Plaintiffs. There was no joint family properties. The B and C Schedule properties were purchased by him out of his own funds. The Plaintiffs can at best claim 1/4th share in 50% of the C-Schedule property i.e. 1/4th share in 98 cents. The legal heirship certificate was given only in the names of the Defendants. There was no denial of partition by the Defendants. The Defendants attempted to settle the matters. The Plaintiffs refused to accept any settlement and demanded more than that they are entitled to. The Defendants have always been willing to give the Plaintiffs' share in the properties to them. There 4/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 was no alienation of the properties and hence, there is no question of any alienation not binding 1/3rd share of the Plaintiffs. The Plaintiffs are not entitled to 1/3rd share each in the B and C Schedule properties. The Defendants have already furnished all the particulars of all the documents to the Plaintiffs and they cannot now reserve their right to include those properties that have been left out. The Plaintiffs are not entitled to any one of the reliefs as prayed for in the suit. In such circumstances, the suit is liable to be dismissed.
4. In the reply statement filed by the Plaintiff, while reiterating the averments made in the plaint, it is further stated that prior to the suit, various demands were made for partition and the settlement talks did not progress. Details of the properties were not given by the Defendants, in spite of notice dated 28.09.2011. Hence, the Plaintiffs are unable to set out all of them in the plaint. As and when the details are available, the Plaintiffs would file appropriate petition to amend the plaint. The suit has been valued as per law. There is an admission by the Defendants as to the entitlement of the Plaintiffs and hence, the Plaintiffs are entitled to 1/12th share each in the A-Schedule property. The Plaintiffs are entitled to 3/12 5/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 share of 1/4th share and seek for pre-emption under Sections 3 and 4 of the Partition Act and to claim the right to purchase the property, i.e. the share of the Defendants, in the event division of the property is not possible. All the legal heirs are entitled to equal share in the properties, as per the Hindu Succession Act. It is for the Defendants to establish that the properties are not the joint family properties and that the properties are not purchased from the joint family funds. There is also an admission that the Plaintiffs are entitled to 1/4th share of the 50% of the C-Schedule property i.e. 1/4th in 98 cents. The legal heirship certificate was obtained falsely, for which the Plaintiffs have not initiated any action considering the relationship between them. In spite of repeated requests, the Defendants did not come forward to partition the properties. Hence, the written statement is to be rejected and the suit is to be decreed as prayed for.
5. In the rejoinder filed by the Defendants to the reply statement filed by the Plaintiffs, it is averred that the Defendants have not made any false allegations as alleged by the Plaintiffs. Because of the attitude of the Plaintiffs, no settlement could be arrived at. Since several queries not pertaining to the suit were demanded by the letter dated, 28.09.2011, no 6/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 reply was sent. IA.No.11016 of 2012 filed to furnish documents by the Plaintiff was dismissed and the CRP(PD)No.1074 of 2013 filed as against the same was also dismissed on 23.04.2013. The allegation that there is an admission by the Defendants as to the entitlement of the Plaintiff to shares in the joint family property is false. IA.No.11015 of 2012 for passing a decree based on such admission was dismissed on 21.01.2013 and CRP(PD)No.1073 of 2013 filed as against the same was withdrawn by the Plaintiffs. The Plaintiffs have suppressed the fact that the Defendants have been making payment of Rs.20,000/- to the Plaintiffs every month and the same has been increased to Rs.25,000/-. The Plaintiffs have not come to Court with clean hands. It is the Plaintiffs, who are not at all interested in the settlement. The Plaintiffs are already aware of the properties and hence, they cannot reserve their right to initiate a separate suit for partition. Hence, the suit is liable to be dismissed.
6. In the additional written statement filed by the Defendants, it is stated as follows:-
(a) The Plaintiffs originally sought for 1/4th share in the A-Schedule property, 1/3rd share in the B and C Schedule properties and now 7/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 they are seeking for 1/3rd share in the A-Schedule property and 5/12th share in the B and C Schedule properties and D to H Schedule properties, which is totally incorrect. The A-Schedule property stands in the joint names of the 1st Defendant, 3rd Defendant and late Muthuraman. Although each of them have 1/3rd share in the said property, the share of late Muthuraman has devolved on his legal heirs i.e. the Plaintiffs as well as his mother i.e. the 1st Defendant herein. Thus, the 1st Defendant, apart from her undivided 1/3rd share in the said property is also entitled to 1/4th share in late Muthuraman's 1/3rd share. Therefore, the Plaintiffs are entitled to only 3/4th share of Muthuraman's 1/3rd undivided share and not 1/3rd share in the A-Schedule property.
(b) The late Muthuraman was not entitled to 1/3rd share in the B-
Schedule property, since it stands in the name of late Rama Meenakshi Sundaram Chettiar and it is not an ancestral property and the 2nd Defendant is also entitled to a share. Although the Plaintiffs, being the heirs of late Muthuraman were jointly entitled to 1/4th share in the said property after the demise of the late Rama Meenakshi Sundaram Chettiar, since the 1st Defendant is also one of 8/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 the legal heirs of late Muthuraman, the Plaintiffs are entitled to only 3/16th share in the said property and not 5/12th share. In so far as the C Schedule property is concerned, the said property was purchased by late Rama Meenakshisundaram Chettiar and his wife, Rukmini, 1st Defendant herein. It is not an ancestral property, but self earned property. Hence, the Plaintiffs are entitled to 5/12th share in the said property and the Plaintiffs are only entitled to 3/32 nd share in the said property. There are no averments in the plaint as to who are the owners of the D to H Schedule properties and on what basis they claim shares in the said properties. The owner of the D Schedule property is a partnership firm, Raja Rajeswari Enterprises. The E Schedule property was purchased in the name of the 1st Plaintiff and it was not the self earned property of the first Plaintiff. The Plaintiffs have let out the said property and earning rent. The Plaintiff are entitled to 3/16th share in the said property.
(c) The F Schedule property stands in the name of Lakshmi Leather Corporation and hence, the Plaintiffs and the Defendants cannot claim any share in the said property. The G Schedule property stands in the name of Mahalakshmi Leather Corporation, a 9/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 partnership firm and hence, both the parties cannot claim any share in the same. The H Schedule property stands in the name of Dhanalakshmi and Co and hence, the parties cannot claim any share in the said property. The A, B, C and E Schedule properties are self acquired properties of late L.M.Rama Meenakshi Sundaram Chettiar and are not ancestral properties. The Plaintiffs are not entitled to 1/3rd share in the A-Schedule property and to 5/12th share in the B to H Schedule properties. Hence, the suit is liable to be dismissed.
7. On the pleadings of the parties, the following issues and additional were framed:-
Issues:-
(1) Whether the Plaintiffs are entitled for partition as claimed in the suit?
(2)Whether it is true that the suit A and B Schedule properties are not acquired from the joint family funds? (3)Is it correct that the Plaintiffs are entitled for 1/4 th share in 50% of C Schedule property?
(4)To what other reliefs?
Additional Issues:-
(1)Whether the properties described in the schedules B-H are 10/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 ancestral properties or acquired from and out of the ancestral nucleus by L.M.Rama Meenakshi Sundaram Chettiar? (2)Whether Rajeswari Enterprises, a partnership firm, is the absolute owner of the property mentioned in the D-Schedule? (3)Are the Plaintiffs entitled to 5/12th share in the property mentioned in the F-Schedule, when the said property absolutely belonged to the partnership firm, Mahalakshmi Leather Corporation?
(4)Are the Plaintiffs entitled to 5/12th share in the property mentioned in the H-Schedule when the property absolutely belongs to the partnership firm, Dhanalakshmi & Co.? (5)Whether the Plaintiffs are entitled to 5/12th share in the properties mentioned in the Schedules B-H?
(6)To what other reliefs the Plaintiffs are entitled?
8. On the side of the Plaintiffs, Ex.A1 to A10 were marked and PW.1 was examined. On the side of the Defendants, Ex.D1 to D4 were marked and DW.1 was examined.
9. Issue Nos.1,2, 3 and Additional Issue No.1 It is admitted that the plaintiffs are the widow, son and daughter of Late M.S.Muthuraman @ M.S.Palaniappan, the elder son of Late L.M.Rama Meenakshi Sundaram Chettiar. He died intestate on 20.11.1997. Late M.S.Muthuraman @ M.S.Palaniappan died intestate on 11/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 24.09.1995 predeceased to L.M.Rama Meenakshi Sundram Chettiar. The plaintiffs filed this suit as against the other Legal heirs of Late L.M.Rama Meenakshi Sundram Chetttiar i.e. his wife the 1st defendant, his daughter the 2nd defendant and another son the 3rd defendant.
10. The Learned Counsel for the plaintiff contended that in the original written statement dated 21.12.2011, in paragraph 7, the defendants have admitted that the plaintiffs are entitled 1/12th share each i.e.3/12th share in the A schedule property. Ex.A1 is the sale deed with respect to the A schedule properties is in the name of D1, D3 and the deceased Muthuraman @ Palaniappan. The defendants admitted that the plaintiffs are entitled their due share in respect of A schedule property.
11. It is the case of the plaintiffs that the B schedule property is the joint family property. C schedule property stands in the name of L.M.Rama Meenakshi Sundaram Chettiar and the 1st Defendant. The defendants admit the plaintiffs share only to the share of L.M.Rama Meenakhsi Sundarm Chettiar. The 2nd defendant also have share as one of the legal 12/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 heir of Late Muthuraman @ Palainiappan. The plaintiffs stated that as Muthuraman @ Palaniappan did not die possessed of C schedule property, his mother the 1st defendant cannot claim share and it is a joint family property.
12. Later, the plaint was amended and included D,E,F,G,H properties by way of amendment. The plaintiffs claimed that these properties were purchased out of the joint family nucleus.
13. The plaintiffs’ contention is that L.M.Rama Meenakshi Sundaram Chettiar and his brothers were possessed of large extent of ancestral properties and that the leather business was started with the income from those properties. Once vast ancestral nucleus is admitted, the leather business started by Kartha L.M. Rama Meenakshi Sundaram Chettiar is joint family business unless the contrary is proved. There is no evidence contra on the side of the defendants. D, F,G & H schedule properties acquired out of business started with joint family nucleus are also available for partition and the plaintiffs have 5/12th share in each of 13/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 those properties. In support of his contentions he relied upon AIR 1965 SC 289 wherein it was held that the legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown, AIR 1966 SC 411 wherein it was held that under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises presumption that it s a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid the said nucleus, 1973 (2) SCC 334, it was held that the family account books have not been produced. The 1st defendant who says that he had his own income 14/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 has also not cared to produce his own account-books. Under these circumstances the finding of High Court that the acquisitions standing in the names of the three brothers made prior to 1351 B.S. are family acquisitions is unassailable. When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the family properties are family acquisitions;
14. The learned counsel for the defendants contended that the plaintiff had initially filed the suit for partition before this Hon’ble Court. The plaintiffs had originally mentioned only three properties – Schedules A, B & C of the plaint and had sought for partition of 1/4 th share in the said properties. The written statement of the defendants was filed in December 2011 after the suit was transferred to the City Civil Court in the year 2011. The plaintiffs filed their reply statement in March 2012 for the written statement. The defendants filed their rejoinder to the reply statement in August 2013. Thereafter the plaintiffs filed an application for amendment of plaint and introduced paragraph 9A and schedules D to H. The plaintiffs not only added new properties for partition but had also 15/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 revised their share and sought for 1/3rd share in the plaint A schedule property and 5/12th share in plaint B to H properties. The plaintiffs have not even stated as to on what basis they have revised their claim and as to how they claim the shares. The defendants filed their additional written statement in December 2014. Without specifically stating the properties, the plaintiffs cannot vaguely seek for share in such other properties that belong to the family. Further there are no other properties belonging to late Rama Meenakshi Sundaram Chettiar which are available for partition. It is false to state that Rama Meenakshi Sundaram Chettiar had purchased properties out of the joint family income and he started his own leather business and had purchased various properties from and out of his self earned income and there were no family or ancestral properties nor was there any income from such properties as alleged. The plaintiffs have not proved that the joint family properties earned sufficient income to enable Rama Meenakshi Sundaram Chettiar to purchase plaint schedule properties. One residential house at Koppanampatty Village, where family members residing and it do not fetch any income. The land had been leased out various tenants and who have not paid any rent and said property also not fetching any income. Once it is admitted that the plaint A schedule is 16/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 not joint family property other properties were not purchased from and out of joint family properties. The other properties were purchased much later and it was not from and out of joint family funds. The plaintiffs should have impleaded Rama Meenakshi Sundaram Chettiar’s brothers and their respective children to prove the ancestral nucleus. There is no evidence to prove that the properties purchased by late Rama Meenakshi Sundaram Chettiar were from and out of the income from joint family properties. PW1 is not aware of the purchase of properties. DW1 was not cross examined on the aspect of personal income of Rama Meenakshi Sundaram Chettiar. Proof of the existence of joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. That the suit A,B,C and E Schedule properties were purchased by only Rama Meenakshi Sundaram out of his self earned funds. Suit D,F, G and H properties belong to different partnership firms and does not belong to Rama Meenakshi Sundaram Chettiar and hence partition cannot be sought in respect of these properties. The defendants placed judgements of the Hon’ble Supreme Court reported in AIR 1954 SC 379 in which it was held that it is only after possession of the adequate nucleus is 17/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 shown the ownership onto the person who claim the property as self acquisition and AIR 1965 SC 1076 it was held that there is no presumption that a Hindu Family merely it is joint, possess any joint property. The burden of proof is on the person who asserts it. The defendants admitted that there were several rounds negotiations. But, it was not fruitful. The 1st defendant is also one of the legal heir of late M.S.Muthuraman and without taking care her share the plaintiffs claimed shares.
15. In view of the above submissions, it is admitted that there were ancestral properties of Rama Meenakshi Sundram Chettiar. Apart from that he purchased several properties. The properties are in his name, his elder son M.S.Muthruaman (Deceased), his wife the 1st defendant, the 1st plaintiff and in the name of his business entities. The defendants admitted that the properties are acquired by Rama Meenakshi Sundaram Chettiar. But, contended that the suit A,B,C and E Schedule properties were purchased by only Rama Meenakshi Sundaram Chettiar out of his self earned funds. Suit D,F, G and H properties belong to different partnership firms and does not belong to Rama Meenakshi Sundaram Chettiar. In view 18/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 of the admission by the defendants, I find that the B, part of C and part of E Schedule properties were purchased by Rama Meenakshi Sundaram Chettiar. Hence, the plaintiffs are entitled for partition.
On perusal of Exs.D1 to D4, the D, F, G, H properties belonged different partnership firms and other business entities.
16. Additional Issues Nos.2,3,4 &5 The plaintiffs’ contention is that the D, F, G, H schedules of properties are joint family properties. The defendants contented that the owner of the D schedule is Raja Rajeswari Enterprises, which is partnership firm. The property belongs absolutely to the partnership firm. F schedule property stands in the name of Lakshmi Leather Corporation. Schedule G property stands in the name of Mahalakshmi Corporation. Schedule H property stands in the name of Dhanalakshmi & Co. a partnership Firm. The sale deeds in respect of those properties were marked as Exs. D1 to D4. Since the properties stands in the name of partnership firm the plaintiffs are not entitled for partition. 19/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016
17. Issue No.4 and Additional Issue No.6 The defendants are collecting the rents from some of the properties to the above suit. The plaintiffs are entitled to raise the issue of their respective share in the mense profits in the final decree proceedings.
18. In the result, the suit is decreed partly and the plaintiffs are collectively entitled 3/12th share in the A schedule, 1/4th share in the B schedule properties. In respect of C Schedule they are entitled to get 3/32 share and E schedule in S.No.114/3 measuring 48 cents, the plaintiffs are entitled collectively 1/4th share.
19. In view of the above the preliminary decree is passed. No costs.
21.09.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm/TRP(MDU) 20/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 21/22 https://www.mhc.tn.gov.in/judis CS.No.382 of 2016 A.A.NAKKIRAN, J.
Srcm/TRP (MDU) Pre-Delivery Judgement in CS.No.382 of 2016 21.09.2022 22/22 https://www.mhc.tn.gov.in/judis