Madras High Court
Vijaya vs Kuppusamy on 29 January, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.75 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29-01-2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.75 of 2018
1.Vijaya
2.P.Thangamani .. Appellants/Plaintiffs
vs.
1.Kuppusamy
2.Palaniammal
3.Thangammal
4.Jaganathan
5.Raja .. Respondents/Defendants
Appeal Suit is preferred under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 02.06.2017 passed
in O.S.No.37 of 2012 on the file of the learned Additional District
Judge, Namakkal.
For Appellants : Ms.Sandhya for Mr.S.Mukunth
JUDGMENT
The present appeal suit is directed against the judgment and decree dated 02.06.2017 passed by the learned Additional District 1/14 http://www.judis.nic.in A.S.No.75 of 2018 Judge, Namakkal in O.S.No.37 of 2012.
2. The plaintiffs in the suit are the appellants in the appeal suit and the defendants in the suit are the respondents in the appeal suit.
3. The suit was instituted by the appellants/plaintiffs for partition and the plaintiffs as well as the defendants 3, 4 and 5 are the daughters and sons of defendants 1 and 2. In other words, the first defendant Mr.Kuppusamy and the second defendant, wife of the first defendant Mr.Kuppusamy, are the parents of the plaintiffs as well as the defendants 3, 4 and 5. The relationship between the parties are admitted and there is no dispute.
4. The claim set out in the plaint for partition is that suit schedule properties are the ancestral properties and therefore, the plaintiffs have got right in respect of the ancestral properties. In respect of Item Nos.1 and 2 of the suit properties, the Great Grandfather of the plaintiffs Mr.Nalligounder and subsequently one Mr.Muthusamy Gounder was in possession and enjoyment of Item Nos.1 and 2 of the suit properties. The two sons of Mr.Muthusamy 2/14 http://www.judis.nic.in A.S.No.75 of 2018 Gounder namely Mr.Chinnappan and the first defendant Mr.Kuppusamy registered a Partition Deed on 02.11.1976 and accordingly, the family properties were divided and the documents were registered.
5. According to the said Partition Deed, 'A' Schedule properties were granted in favour of Mr.Muthusamy Gounder and 'B' Schedule properties were granted to the brother of the first defendant Mr.Chinnappan and 'C' Schedule properties were granted to the first defendant, who is the father of the plaintiffs. The 'C' Schedule properties are Item No.1 in the suit schedule properties in O.S.No.37 of 2012.
6. As far as Item No.2 of the suit schedule properties, they are the ancestral properties. The said properties were also the subject matter of the Partition Deed on 02.11.1976. The said Mr.Muthusamy Gounder, father of the first defendant, and Mr.Chinnappan also died on 22.11.1994 intestate. His wife Kaliyammal also died on 23.01.1995 intestate. The first defendant as well as his brother Mr.Chinnappan are the male legal heirs and one Smt.Chinnammal was the female legal heir for late Mr.Muthusamy Gounder and Kaliyammal. Thereafter those properties were partitioned between the first respondent, his brother 3/14 http://www.judis.nic.in A.S.No.75 of 2018 Mr.Chinnappan and their sister Smt.Chinnammal by way of a registered Partition Deed on 20.02.2009.
7. As per the registered Partition Deed, the first defendant was allotted 'B' Schedule properties and his brother Mr.Chinnappan was allotted with 'A' Schedule properties and as far as the sister is concerned, Rs.10,000/- was paid from the family fund and she executed a Release Deed. Accordingly, Item No.2 in entirety was allotted to the first defendant by way of Partition Deed on 20.02.2009.
8. Item Nos.1 and 2 of the Schedule properties are concerned, it is the ancestral property belongs to the first defendant and therefore, the plaintiffs as well as the defendants 4 and 5 are also having right. Further, it is contended by the plaintiffs that as far as Item Nos.1 and 2 of the Schedule properties are concerned, from and out of the income derived from the ancestral properties, the properties mentioned in Item No.3 were purchased by the first defendant. Item No.4 properties were also purchased from and out of the income derived from the ancestral properties. Setting out these facts, the plaintiffs claimed partition before the Trial Court. 4/14 http://www.judis.nic.in A.S.No.75 of 2018
9. It is contended that the entire suit schedule properties are the family properties, more specifically, ancestral properties and the properties in Item Nos.3 and 4 were purchased by the first defendant from and out of the income derived from the properties in Item Nos.1 and 2 and therefore, all properties are to be construed as ancestral properties and consequently, the plaintiffs are entitled for a decree of partition.
10. The first defendant filed the written statement and denied the contents in the plaint. The first defendant mainly contended the registration of Partition Deed on 02.11.1976 and the subsequent Partition Deed executed between the first defendant, his brother and sister on 20.02.2009. Therefore, the family properties were partitioned already and the first defendant was allotted with his shares.
11. Once the partition was effected in respect of the family properties and the respective shares were allotted to the legal heirs, then they became the absolute owners and has got an absolute right in respect of the allotted properties after effecting partition.
12. The Trial Court framed the following issues for 5/14 http://www.judis.nic.in A.S.No.75 of 2018 consideration:-
“(1) Whether the suit properties in Item Nos.1 and 2 are the ancestral properties or not ?
(2) Whether Item Nos.3 and 4 of the suit schedule properties were purchased from and out of the income derived from Item Nos.1 and 2 of the suit properties or not ?
(3) Whether the plaintiffs are entitled for a partition ?
(4) Whether the plaintiffs are entitled for a preliminary decree ?
(5) Whether the plaintiffs are entitled for the relief of injunction ?
(6) To what other relief, the plaintiffs are entitled ?”
13. In respect of issue No.1, the Trial Court considered the documents with reference to the suit schedule properties. The relationship between the parties are admitted. The Partition Deed dated 02.11.1976, which is a registered Partition Deed, was admitted by the plaintiffs themselves and as per the said Partition Deed, the Great Grandfather and the father of the first defendant divided the family properties and thereafter, the grandfather also died and subsequently, another Partition Deed was registered on 20.02.2009, 6/14 http://www.judis.nic.in A.S.No.75 of 2018 wherein the first defendant, his brother Mr.Chinnappan and their sister are the parties. Accordingly, the family properties were divided between the first defendant and his brother and they have paid an amount of Rs.10,000/- to their sister, who in turn executed a Release Deed. Therefore, the first defendant as well as his brother Mr.Chinnappan holds the absolute right in respect of the properties allotted to them by way of a Partition Deed dated 20.02.2009.
14. The abovesaid facts are considered by the Trial Court. With reference to the Partition Deed, it is relevant to extract the findings in this regard made by the Trial Court and the same is extracted hereunder:-
“1k; gpujpthjp kw;Wk; rpd;dg;gd; vd;gtu;fs; Mz; thupRfs; vd;Wk;. Rpd;dk;khs; vd;gtu;
bgz; thupR vd;Wk; gpd;dpl;L 1k; gpujpthjp
rpd;dg;gd; kw;Wk; rpd;dk;khs; Mfpnahu;
Kj;Jrhkp ft[zl
; Uf;F 02/11/1976k; njjpapl;l
ghfg;gpuptpid gj;jpuj;jpy; xJf;fg;gl;l A
brl;a{y; brhj;ij 20/02/2009y; ghfg;gpuptpid
bra;J bfhz;L gj;jpuk; vGjp gjpt[ bra;J
bfhz;Ls;sjhft[k; nkw;go ghfg;gpuptpid
gj;jpuj;jpy; 1k; gpujpthjpf;F B brl;a{y;
brhj;jJf;fSk;. rpd;dg;gDf;F A brl;a{y;
brhj;Jf;fSk; xJf;fg;gl;ljhft[k;. rpd;dk;khs;
7/14
http://www.judis.nic.in
A.S.No.75 of 2018
jd;Dila ghfj;jpw;fhf FLk;g bghJ
epjpapypUe;J U:/10.000-? bgw;Wf;bfhz;L
jdf;Fupa ghfj;ij tpLjiy bra;J bfhLj;J
tpl;ljhft[k;. vdnt jhth 2tJ mapl;l
brhj;Jf;fs; g{uht[k;. 1k; gpujpthjpf;F 20/02/2009 njjpapl;l ghfg;gpuptpidapy; xJf;fg;gl;ljhft[k;.
vdnt jhth 1 kw;Wk; 2 mapl;l brhj;Jf;fs;
KgtJk; 1k; gpujpthjpf;F g{u;tPfkhf
ghj;jpag;gl;l brhj;Jf;fshFk; vdt[k; thJiu
bra;jhu;/ 1k; thjp tp$ah th/rh/1 Mf
tprhupf;fg;gl;lhu;/ mtuJ rhl;rpaj;jpd; K:yk;
Kj;Jrhkp ft[zl
; upd; kfd;fs; rpd;dg;gd; kw;Wk;
1k; gpujpthjpf;Fk; Kj;Jrhkpf;Fk; ,ilna
Vw;gl;ll gjpt bra;ag;gl;l ghfg;gpuptpid
gj;jpuk; th/rh/1 Mft[k; 20/02/2009k; njjpapl;l
ghfg;gpuptpid gj;jpuk; th/rh/M/2 Mft[k;
FwpaPL bra;ag;gl;Ls;sd/””
15. The Trial Court relying on the judgment of this Court in the case of Chinna Palanisamy Gounder vs. Latha and Others [LNIND 2016 Mad 3634] held that once a Partition Deed is effected in respect of the family properties and the first defendant got an absolute right in respect of the suit mentioned properties, then the said properties cannot be subjected to partition during the lifetime of the first defendant. The relevant portion of the abovesaid judgment of this Court, relied on by the Trial Court, is extracted hereunder:-8/14
http://www.judis.nic.in A.S.No.75 of 2018 “Suit properties derived by the first defendant under Ex.A6 could only be treated as the separate properties of the first defendant and not the joint family properties of the first defendant and the plaintiffs 2 and 3. If the self acquired property or joint family property, once they get devolved in accordance with Section 8 of Hindu Succession Act, 1956, on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons, who have succeeded to it as they hold the property as tenants in common and not as joint tenants. The first defendant has rightly described the suit properties as his own properties in Ex.B1 sale deed. The first defendant is not shown to have been indulging in illegal/ immoral activities or excluded the plaintiffs and discarded their interest and welfare. The first defendant is not required to seek sanction from the court to convey his separate properties in favour of the second defendant. The suit properties are the separate properties of the first defendant, the claim of 2/3 share by the plaintiffs 2 & 3 on the footing that the suit properties are the joint family properties of the first defendant and the plaintiffs 2 & 3 is completely ruled out. The plaintiffs 2 & 3 and in 9/14 http://www.judis.nic.in A.S.No.75 of 2018 particular, the second plaintiff is not entitled to claim any share in the properties as the suit properties are the separate properties of the first defendant. The judgment and decree of Courts below are set aside. Suit filed by the plaintiff is dismissed. Appeal is allowed.”
16. Considering all these facts and circumstances, the Trial Court made a finding that as far as Item Nos.1 and 2 of the suit schedule properties are concerned, the said properties were allotted to the first defendant through the Partition Deed during the year 2009 and therefore, he holds the absolute right and accordingly, the same cannot be construed as the family properties, which are partitionable and issue No.1 was decided against the plaintiffs.
17. As far as issue No.2 is concerned, the Trial Court found that the properties in Item Nos.3 and 4 are concerned, admittedly, it was purchased by the first defendant from and out of the income derived from the properties in item Nos.1 and 2. When the Trial Court held that the properties in item Nos.1 and 2 are the absolute properties of the first defendant, then the properties purchased in item Nos.3 and 4 also cannot be partitioned, as the properties in item Nos.1 10/14 http://www.judis.nic.in A.S.No.75 of 2018 and 2 are absolutely belongs to the first defendant. Accordingly, issue No.2 is also decided against the plaintiffs.
18. As far as issue Nos.3 and 4 are concerned, item Nos.3 and 4 cannot be construed as ancestral properties. When item Nos.3 and 4 are purchased by the first defendant and the Trial Court found that item Nos.1 and 2 were allotted by way of a registered Partition Deed of the year 2009 and the first defendant became absolute owner of the properties and the partition, if at all, the same can be effected only after the lifetime of the first defendant and during his lifetime period, the plaintiffs are not entitled to seek the partition of the absolute properties belonging to the first defendant and the second defendant, the wife of the first defendant.
19. This being the findings of the Trial Court, with reference to the documents, more specifically, the two Partition Deeds of the year 1976 and 2009, there is no perversity or infirmity as such in respect of the rights ascertained and this Court is of the opinion that the concluded finding of the Trial Court is in consonance with the legal principles and based on the documents and the evidences produced by the respective parties.11/14
http://www.judis.nic.in A.S.No.75 of 2018
20. Under these circumstances, there is no infirmity, as such and the plaintiffs could not able to establish any right for grant of the relief of partition. When the Trial Court considered the documents in the right perspective and the ancestral properties in item Nos.1 and 2 were already partitioned between the first defendant, his brother and sister, item Nos.1 and 2 of the suit schedule properties were allotted in favour of the first defendant by way of a Partition Deed, then the said properties cannot be construed as a partitionable properties and therefore, the plaintiffs are not entitled for the relief of partition as prayed for.
21. Under these circumstances, the judgment and decree dated 02.06.2017 passed by the learned Additional District Judge, Namakkal in O.S.No.37 of 2012 is confirmed. Consequently, the present appeal suit stands dismissed. However, there shall be no order as to costs.
29-01-2020 Index : Yes/No. Internet: Yes/No. Speaking Order/Non-Speaking Order Svn 12/14 http://www.judis.nic.in A.S.No.75 of 2018 To The Additional District Judge, Namakkal.
13/14 http://www.judis.nic.in A.S.No.75 of 2018 S.M.SUBRAMANIAM, J.
Svn A.S.No.75 of 2018 29-01-2020 14/14 http://www.judis.nic.in