M.M.Kumaresan vs M.Shanmugavadivu .. 1St on 19 April, 2017

[Cites 17, Cited by 0]

Madras High Court

M.M.Kumaresan vs M.Shanmugavadivu .. 1St on 19 April, 2017

A.S.Nos.345 of 2017 & 898 of 2018 are arising from O.S.No.770 of 2008 on the file of ‘V- Additional District Judge, Coimbatore’ (henceforth ‘Trial Court’). A.S.Nos.350 of 2017 & 899 of 2018 are arising from O.S.No.65 of 2017 on the file of the Trial Court. 4/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Since, all these appeals are arising out of a common judgment and decree dated April 19, 2017, they are disposed of by this common judgment.

2. For the sake of convenience, the parties will hereinafter be referred to as per their array in the Partition Suit namely, O.S.No.770 of 2008.

Case of the Plaintiff:

3. The Suit Properties are the absolute properties of M. Mylsamy Gounder by virtue of a registered Partition Deed dated April 30, 1952. He possessed and enjoyed these properties as his own until his death. He died intestate on May 24, 1996, leaving behind the plaintiff and the first defendant (D1) as his legal heirs, who are each entitled to half share in the Suit Properties. Since their father's death, the plaintiff and D1 have jointly possessed and enjoyed the Suit Properties, sharing the expenses and income from them. Over the past six months, misunderstandings have arisen between the plaintiff and D1, leading to the plaintiff demanding a permanent partition of the Suit Properties. In the last week of June 2008, the plaintiff learned that D1 had executed a Gift Settlement Deed in favour of his wife – second defendant (D2), regarding 5/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 a portion of the Suit Properties for constructing a new house. On June 25, 2008, a panchayat was convened at the plaintiff's instance to resolve the dispute. In the panchayat, D1 stated he would not give any share in the Suit Properties to the plaintiff and instead offered a monetary amount in lieu of her share. The plaintiff did not accept this offer. Subsequently, it was found that D1, intending to defeat and defraud the plaintiff's rights over the Suit Properties, had executed a Gift Settlement Deed dated June 26, 2007, in favour of D2 concerning 21 Cents in Survey No. 708 included in the Suit Properties. He had no right to do so. Additionally, it was discovered that the names of D1, the third defendant (D3), and the fourth defendant (D4) were surreptitiously included in the Pattas concerning the Suit Properties, which is void and not binding on the plaintiff.

3.1. Through the amended plaint, the plaintiff has additionally stated that, Suit Properties are undivided joint-family properties of plaintiff and D1. During the pendency of the Suit, 5 th defendant (D5) and 6th defendant (D6) purportedly purchased a portion of the land in Survey No.708 under a Sale Deed dated December 15, 2010, from D4 through D1 as his power agent. Such a transaction would not be valid and binding on the plaintiff and would also be hit by lis pendens. 6/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Hence, the Suit for partition, separate possession, and permanent injunction.

3.2. Further, the plaintiff filed another Suit before I- Additional District Munsif Court, Coimbatore for permanent injunction restraining D5 and D6 from forcefully taking possession of the specific portion of Suit Property and form a road therein. The said Suit was later transferred to Trial Court for joint trial and renumbered as O.S.No.65 of 2017.

Case of D1:

4. D1 filed a Written Statement. He admits the relationship between the parties and that his father - Mylsamy Gounder acquired the Suit Properties under Partition Deed dated April 30, 1952. He denied the alleged joint possession and enjoyment of the Suit Properties as false and other averments in the plaint as false.

4.1. According to D1, he and his father organized the plaintiff’s marriage in a grand manner in 1977, providing numerous gifts including gold ornaments, a car, furniture, and silver items. The plaintiff lived happily in her matrimonial home at Sathyamangalam without getting 7/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 involved in farm work or shares in the income from the farm. D1 and his father kept supporting the plaintiff’s family during festivals and events, even covering expenses for her sons’ weddings. Even after the demise of his father, D1 continued to perform seers for the plaintiff’s family. There were no requests from the plaintiff for a share in the properties.

4.2. During the lifetime of his father, when D1and his father faced land ceiling proceedings for the Suit Properties, D1 gave up his own parcel of land viz., 4 Acre 70 Cents in Survey No. 192/1A1A, Ramapattinam Village, to the Tamilnadu Government, as per his father's request, in order to save the Suit Properties.

4.3. Further, the plaintiff was allocated 10 Acre 40 Cents land in ‘Jamin Ramapattinam Village’ in the year 1970 and a vacant site of 18 Cents in Coimbatore town in 1959, under a family arrangement to keep her away from the Suit Properties. The father had no intention to allocate land to her since she was already provided for with property, money, jewels, and articles, and was living comfortably at her matrimonial home.

4.4. D1 and his father had jointly sold an extent of 1305 Sq.ft. of vacant site to one Sivashanmugam on July 25, 1991. 8/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 4.5. Thereafter, in January 1994, an oral partition took place between D1 and his father, whereby an extent of 3 Acre 21 Cents was allotted to the share of D1, and the remaining extent of 28 Acre 98 Cents was allotted to D1’s father.

4.6. Thereafter, D1’s mother passed away. On June 9, 1994, D1’s father executed 3 Wills in a sound disposing state of mind with regard to the Suit Properties. Through one Will, an extent of 13 Acre 78 Cents was bequeathed to Minor Ravi Ganesh (D3 herein, son of D1 and D2). An extent of 15 Acre 26 Cents was bequeathed to Minor Raja Vikram (D4 herein, son of D1 and D2) by another Will. An extent of 3 Acre 21 Cents, which was already allotted to D1 in the 1994 Oral Partition, was bequeathed to D1. After the demise of D1’s father, the said three Wills came into force.

4.7. Meanwhile, there had been some misunderstandings between D1 and his wife – D2. With a view to resolve them and pave way for reunion, D1 had planned to gift a portion of land to his wife in June 2007 as a kind gesture, and expressed his intention to the document writer, 9/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 who misdirected D1 out of ignorance and consequently, the settlement was executed by D1 in favour of his wife on June 26, 2007 in an improper manner.

4.8. Aggrieved by the reunion and the Gift Deed, plaintiff has filed this Suit seeking partition after 12 years of the father’s demise.

4.9. Further, an extent of Hc. 0.15.0 was acquired by the Highways Department from D1’s family and in turn, another extent of Hc. 0.15.0 was allotted to the D1. The plaint is silent about it, which shows that the Plaintiff had not been participating in the affairs of the Suit Properties.

4.10. The plaintiff cannot claim any right as per the Hindu Succession Act, 1956 (henceforth ‘H.S. Act’) as amended by ‘the Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005)’ (henceforth ‘2005 H.S. Amendment Act’). Even while assuming that there was no partition between D1 and his father, the plaintiff can only claim ¼ share in the Suit Properties. Hence, the Suit is to be dismissed.

5. After impleading D5 and D6, plaint was amended by the order of the Trial Court in I.A.No.94 of 2012 dated March 13, 2012, 10/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 whereby Paragraph No.8-a was inserted. Hence, D1 filed an additional written statement on June 12, 2012, wherein, D1 has admitted that D4 through D1 as the power agent, sold a portion of the Suit Properties in Survey No.708 under the Sale Deed dated December 15, 2010 to D5 and D6. He denies that that the Suit Properties are undivided joint family properties and that the Sale Deed is not valid and hit by lis pendens. Hence, D1 prayed to dismiss the Suit.

Case of D2, D3 and D4:

6. D2 filed a Written Statement which was adopted by the D3 & D4. They have reiterated the case of D1 and prayed to dismiss the Suit.

Case of D5 and D6:

7. D5 and D6 jointly purchased an extent of 24 Cents and 33 Sq.ft. in Survey No.708 of Pichanur Village (part of Suit Properties) for the purpose of permanently acquiring a right of usage as pathway to reach their other properties situated behind Survey No.708. D5 and D6 were not aware of the pendency of the Suit. They are bona fide purchasers for value without notice of any encumbrance. The Suit is filed in collusion with the 11/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 other defendants, and they seek equitable relief that in any event, the plaintiff’s alleged share be allotted in the remaining portion of Suit Properties. Hence, the Suit is to be dismissed.

8. Based upon these pleadings, the following issues and additional issues were framed by the Trial Court in O.S.No.770 of 2008:

Issues:

(i) “Whether the plaintiff is entitled for ½ share in the Suit Properties as prayed for?

(ii) Is it correct that Mylsamy Gounder executed 3 separate Wills for 13.78 acres in favour of Minor Raja Ganesh and 15.26 acres in favour of Minor Raja Vikram and 3.21 acres in favour of the D1?

(iii) Is it correct that the plaintiff is not entitled for any share in view of her marriage in the year 1977? and

(iv) To what relief ?” 12/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Additional Issues:

(i) “Whether the Sale Deed in favour of the defendants 5 and 6 are valid under law?

(ii) Whether the defendants 5 and 6 are bona fide purchasers for value and without notice?” 8.1. The following issues were framed by the Trial Court in O.S.No.65 of 2017:

(i) “Whether the plaintiff is in possession of the suit properties?

(ii) Whether the plaintiff is entitled for the decree of permanent injunction?

(iii) To what other relief, if any, is the plaintiff entitled?” 8.2. Joint trial was conducted, and evidence were recorded in O.S.No.770 of 2008. The plaintiff examined herself as P.W.1 and marked 32 documents as Exs-A.1 to A.32. On the side of defendants, D1 and D2 were examined as D.W.1 and D.W.5 respectively. Three other 13/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 witnesses were examined as D.W.2 to D.W.4. 44 documents were marked as Exs-B.1 to B.44. Advocate Commissioners’ report, plan and another report with photos and their negatives were marked as Exs-C.1 to C.4.

8.3. The Trial Court, after hearing both side arguments and perusing the documentary evidence adduced on both sides, concluded that the Oral Partition between D1 and his father was not established; that the Wills relied upon by the defendants are not proved; that the plaintiff is entitled ½ share in the Suit Properties as per Section 8 of H.S. Act; that D4 has no legal right to deal with the Suit Properties, hence, Ex-A.32 is not valid and would not confer any title on D5 and D6 even to claim any equitable relief and that their purchase is hit by lis pendens. Based on these findings, the Trial Court passed a preliminary decree in favour of the plaintiff that the Suit Properties have to be divided into two equal shares and one such share shall be allotted to the plaintiff and also passed decree for permanent injunction against the defendants restraining them from alienating the Suit Properties against the interest of the plaintiff until passing of final decree. Accordingly, both the Suits were decreed. 14/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 8.4. Aggrieved by the common judgment and decree dated April, 19, 2017 passed in O.S.Nos.770 of 2008 & 65 of 2017, D1 in both the Suits filed A.S.Nos.345 & 350 of 2017, and D5 & D6 filed A.S.Nos.898 & 899 of 2018.

Arguments

9. Learned Counsel for D1 / appellant in A.S.Nos.345 & 350 of 2017 would submit that the Trial Court failed to consider the fact that the plaintiff’s marriage was celebrated in a grand and pompous manner lavishing her with gifts like gold ornaments, a car, furniture, and silver items in 1977. The plaintiff was also gifted a land worth crores in Coimbatore Town and later, another 10 Acres land was gifted. An Oral Partition between D1’s father and D1 took place, pursuant to which, the father of plaintiff and D1, executed three Wills (Exs-B.27, B.29 and B.30) bequeathing properties to D1, D3 and D4 in the presence of witnesses well acquainted to the testator. After the demise of the testator on May 24, 1996, the aforementioned Wills came into effect and revenue records of the Suit Properties were transferred in the name of the respective beneficiaries viz., D1, D3 and D4. The aforementioned facts are clearly 15/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 pleaded in the Written Statement. The plaintiff did not deny the Wills in her Partition Suit by filing rejoinder or additional pleadings.

9.1. Further would submit that the testator was holding the post of Vice-President in a political organization. The advocate who prepared the Wills is associated with the same organization and is quite close with the testator. Unfortunately, the said attesting witnesses and the advocate are no more. However, P.Varadharajan and C.Vivekanandhan, who are the sons of the said attestors, and N.Moorthy Kumar, advocate clerk of the said Advocate, were examined as D.W.2 to D.W.4 respectively. Their natural and believable evidence proves the three Wills as per Section 69 of ‘the Indian Evidence Act, 1872’ (henceforth ‘Evidence Act’). The Trial Court failed to consider this aspect. Instead, the Trial Court relied on extraneous documents and arrived at the conclusion that the Wills are not proved. The Trial Court failed to consider the evidence adduced on defendant’s side, including the revenue records and the electricity receipts which stand in the name of the defendants.

16/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 9.2. Further would submit that the father of plaintiff and D1, passed away on May 24, 1996. The Partition Original Suit was filed on September 26, 2008. Hence, the plaintiff claim for partition is barred under Article 110 of the Limitation Act, 1963.

9.3. Further would submit that Ex-A.32 – Sale Deed was executed in respect of a meagre portion of land. The Trial Court has not appreciated the said fact in the right perspective. Accordingly, he prayed to allow these appeals.

10. Learned Counsel appearing for D2, D3 and D4 adopted the above arguments of the learned Counsel for D1.

11. Learned Counsel for D5 and D6 who are the appellants in A.S.Nos.898 & 899 of 2018 would argue that D5 and D6 are bona fide purchasers for value, without notice of the pending Partition Suit. They own property behind the land purchased from D4 through D1 as the power agent. A river separates the properties, and D5 and D6 bought the land to lay a road for easier access, which would otherwise be a longer and more difficult route. The Trial Court’s conclusion that the sale is invalid is erroneous. In any event, they request equitable relief to have the 17/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 plaintiff’s share allotted in the remaining portion of the Suit Properties. Accordingly, he prayed to allow these appeals.

12. Learned Counsel for the plaintiff who is Respondent No.1 in all the four appeals, would argue that the Suit Properties are ancestral and joint family properties, hence, in view of 2005 H.S. Amendment Act, the plaintiff is a coparcener and thus, entitled to claim ½ share in the Suit Properties.

12.1. Referring to Ex-A.17 to Ex-A.31, the Counsel would submit that, with a view to defeat and defraud the plaintiff’s interest and right over the Suit Properties, D1 and D2 with their henchmen, fabricated false documents based on which three Suits were filed before District Munsif Court, Coimbatore and decree was obtained in their favour behind the plaintiff’s back. The plaintiff learnt about the fraud committed by D1 and D2 only during the pendency of the Partition Suit in O.S.No.770 of 2008. The said documents and the decree obtained by fraud are all void.

12.2. Further would argue that no Oral Partition was held between the plaintiff’s father and D1, and the plaintiff’s father did not execute any Wills as alleged. A bare reading of Exs-B.27, B.29 and B.30 18/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 juxtaposed with Ex-A.17 to Ex-A.31 would establish that they are all fabricated documents.

12.3. Further would argue that the alleged seers would actually strengthen the contention of the plaintiff that she’s in joint possession and enjoyment of the Suit Properties. Further, in view of the judgment of the Hon’ble Supreme Court in Vineetha Sharma’s case [Vineetha Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1], the plaintiff being a coparcener is entitled to ½ share in the Suit Properties. As far as D5 and D6 are concerned, the sale is invalid and hit by lis pendens. The Trial Court after meticulous consideration, decreed the Suit. There is no reason to interfere with the same. Accordingly, he prayed to dismiss these appeals.

Points for Consideration

13. The following points are to be decided in these First Appeals:

i) Whether the Suit Properties are ancestral properties in the hands of the father of plaintiff and D1?

19/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018

ii) Whether the alleged Oral Partition between D1 and his father in January 1994 is proved?

iii) Whether the three Wills allegedly executed by the father of plaintiff and D1 are genuine and valid?

iv) Whether the Trial Court is justified in its conclusion that, the Suit Properties are absolute properties of the father of plaintiff and D1, and hence, in view of Section 8 of H.S. Act, the plaintiff is entitled ½ share?

v) Is the plaintiff’s claim barred by Limitation as per Article 110 of the Limitation Act, 1963?

vi) Whether the Trial Court’s conclusion that, Ex-A.32 – Sale Deed executed by D4 through D1 as his Power agent, in favour of D5 and D6 is not 20/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 valid and does not confer any title to D5 and D6, even to claim any equity relief, is correct?

vii) Whether the plaintiff is entitled to the relief of permanent injunction?

Discussion and Decision Point No.(i) - Whether the Suit Properties are ancestral properties in the hands of the father of plaintiff and D1?

14. One Muthusamy Gounder had three sons, namely M.Rangasamy, M.Venkatachellam and M.Mylsamy (father of the plaintiff). Bare reading of Ex-A.1 - Partition Deed dated April 30, 1952 would show that the forefathers of plaintiff and D1 owned a vast extent of ancestral and joint family properties in and around Coimbatore District. On December 3, 1942, Mylsamy, then a minor, represented by his father, entered into a registered Partition Deed with his father and two brothers partitioning ancestral and joint family properties. After attaining the age of majority, Mylsamy refused to accept the Partition Deed and instead demanded properties of his choice. Therefore, Muthusamy Gounder and 21/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 his three sons entered into Ex-A.1 - Partition Deed dated April 30, 1952 and re-partitioned the properties covered under the previous Partition Deed along with their subsequent acquisitions and developments. Through the said Partition Deed, ‘A’ Schedule Properties therein were allotted to Muthusamy, ‘B’ and ‘C’ Schedule Properties therein were allotted to the two brothers of Mylsamy, ‘D’ Schedule Properties therein were allotted to Mylsamy, and ‘E’ Schedule Properties therein were allocated for endowment activities. ‘D’ Schedule Properties therein consist of 32 Acres 19 Cents, out of which, Mylsamy along with D1 sold 3 Cents to C.D.Shanmugam on July 25, 1991. The remaining 32 Acres 16 Cents constitutes the Suit Properties herein.

15. This Court deems fit to extract Paragraph No.295 from Mayne’s textbook [Mayne’s Treatise on Hindu Law and Usage (18th edition, 2020, Page No.940)] hereunder:

“295. Divided property.-Where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards his male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father 22/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch.” 15.1. Our Hon’ble Supreme Court in Shyam Narayan Prasad’s case [Shyam Narayan Prasad Vs. Krishna Prasad and Others, reported in (2018) 7 SCC 646], while referring to C.Krishna Prasad’s case [C.Krishna Prasad Vs. Commisioner of Income Tax reported in (1975) 1 SCC 160], M.Yogendra’s case [M.Yogendra Vs.Leelamma N., reported in (2009) 15 SCC 184] and Rohit Chauhan’s case [Rohit Chauhan Vs. Surinder Singh, reported in (2013) 9 SCC 419], held that the share obtained by a coparcener on partition of an ancestral property remains ancestral property qua his male issues. Relevant extract is as follows:

“16. Therefore, the properties acquired by Defendant 2 in the partition dated 31-7-1987 although are separate properties qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31-7-1987. The property which 23/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 had fallen to the share of Defendant 2 retained the character of a coparcenary property and the plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable.” 15.2. Further, Hon’ble Supreme Court in Arshnoor Singh’s case [Arshnoor Singh Vs. Harpal Kaur and Others, reported in (2020) 14 SCC 436], while referring to C.Krishna Prasad’s case (supra) and Yudhishter’s case [Yudhishter Vs. Ashok Kumar, reported in (1987) 1 SCC 204], has held as hereunder.

“7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property.

7.6. If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.” 24/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018

16. In this case, as stated supra, ancestral property had been partitioned in the year 1952 whereby ‘D’ Schedule Properties consisting of an extent of 32 Acres 19 Cents were allotted to Mylsamy. ‘D’ Schedule Properties were separate properties in the hands of Mylsamy until the moment his son (coparcener) was born. After son’s birth, Mylsamy (father) and his son would be the coparceners. However, this view has changed in view of the 2005 H.S. Amendment Act and the same would be discussed in Paragraph Nos.18 to 18.3. herein.

17. The plaintiff was born on November 11, 1957. D1 was born after her. She was married off on March 27, 1977 i.e., before the commencement of ‘the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (Act No.1 of 1990) (w.e.f. March 25, 1989)’ (henceforth ‘the H.S. T.N. Amendment Act’). Hence, the plaintiff is not entitled to benefit of the H.S. T.N. Amendment Act. Assuming a moment that marriage of the daughter was held after commencement of the H.S. T.N. Amendment Act, for reasons stated in Paragraph Nos.18 to 18.3. herein, the daughter would be conferred coparcenary rights from the very moment of birth, exercisable on and from the date of commencement of the H.S. T.N. 25/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Amendment Act, which is March 25, 1989.

18. Thereafter, H.S. Act was amended, and Section 6 was substituted. As per the new Section 6, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. For ease of reference, Section 6 (1) is extracted hereunder:

“6.Devolution of interest in coparcenary property.— (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.” 18.1. The Hon’ble Supreme Court in Vineetha Sharma’s 26/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 case (supra), has held that daughter of coparcener, just like son of coparcener, becomes a coparcener at the very moment of their birth;

however, the right conferred at the very moment of their birth is exercisable prospectively on and form the date of commencement of the Section 6 of the H.S. Act as amended by 2005 H.S. Amendment Act i.e., on and from September 9, 2005. Relevant extract is hereunder.

“73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively.” (Emphasis supplied) 18.2. Additionally, this Court deems fit to extract a relevant 27/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 paragraph from Chapter VII – Joint Family Properties of R.C.Nagpal’s textbook [R.C.Nagpal’s Modern Hindu Law (2nd edition, 2015, Page No.

662)] hereunder:

“7. Share allotted on partition.-The share that a coparcener gets on the partition of the joint family property has a dual character. It is his separate or personal property vis-à- vis those from whom he separates himself. On the other hand it is coparcenary property vis-à-vis his own son and daughter. The son or daughter may be in existence at the time of partition or may be born thereafter. In both the cases he or she is entitled to joint interest with the father. Now a daughter occupies the same position as a son by virtue of the amendment of Section 6 of the HSA.

When certain properties are allotted to a member along with an obligation to discharge some family debt, it does not become separate property vis-a-vis his issues. It retains the ancestral (joint) character.” 18.3. Hence, approaching the authorities cited in Paragraphs Nos.15 to 15.2., in light of Vineetha Sharma’s case and R.C.Nagpal’s textbook, it is easily discernible that the share obtained by a coparcener on partition of an ancestral property remains ancestral property qua not only his male issues but also female issues. Hence, this Court is of 28/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 the considered view that from the very moment of plaintiff’s birth, she constituted a coparcenary along with her father. Then, her brother, who was born later, joined the coparcenary. Hence, the ‘D’ schedule properties qua plaintiff and D1 are ancestral in nature. Needless to repeat, plaintiff’s coparcenary rights are exercisable prospectively. Point No.(i) is answered accordingly.

Point No.(ii) - Whether the alleged Oral Partition between D1 and his father in January 1994 is proved?

& Point No.(iii) - Whether the three Wills allegedly executed by the father of plaintiff and D1 are genuine and valid?

19.It is settled law that partition can be effected orally. A person who alleges Oral Partition has to plead and prove the same. In this case, D1 in his written statement has pleaded that in January 1994 Oral Partition took place between him and his father in the presence of a very few people including Mr.M.P.Thangavel of Mannur, and Mr.Thirumalaisamy Naidu along with his son Senthil. In the said partition, an extent of 3 Acres 21 Cents was allotted to D1 and the 29/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 remaining extent of 28 Acres 98 Cents were allotted to D3 and D4 (D1's sons). D.W.1 has deposed along the same line in his chief examination. But the defendants failed to examine the aforementioned three witnesses. On the other hand, the plaintiff produced Ex-A.3 and Ex-A.4 – Certified Copies of Chitta, and Adangal for the fasli year 1406 respectively, both issued by the headquarters deputy tahsildar on March 20, 1998. They would show that Patta No.478 stands in the name of her father – Mylsamy and one another person named Mylsamy; that Patta No.304 stands solely in the name of her father - Mylsamy; that Patta No.305 stands in the name of her father - Mylsamy, and one C.D.Shanmugam. If really the alleged Oral Partition took place in 1994, the same would have reflected in the revenue records and other public documents. Ex-A.3 and Ex-A.4 shows that until 1998, there had been no mutation in pursuance of the alleged Oral Partition. The defendants have neither filed the Patta transfer order nor examined the authorities concerned to prove that in pursuance of the alleged Oral Partition mutation has been effected in the Pattas and other revenue records.

19.1.Further contention of the defendants in this regard is that 30/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 grandfather – Muthusamy executed Gift Settlement Deed in favour of plaintiff whereby gifted 18 Cents in Coimbatore town and paternal uncle M.Rangasamy also executed Gift settlement deed in favour of plaintiff whereby gifted 10 Acre 40 Cents in a family arrangement to plaintiff with a view to keep away the plaintiff from Suit Properties. Paternal Aunt also gifted some property thorugh Gift Settlement Deed to the plaintiff. Since the aforesaid Gift Settlement Deed were made by grandfather, paternal uncle and paternal aunt, out of love and affection, this Court is of the view that the said transactions would not help the case of defendants.

19.2.Further, the contention of D1 is that during the life time of his father - Mylsamy, the Suit Properties were subjected to Land Ceiling proceedings, at that time D1 and his father - Mylsamy decided not to loose any piece of land from the Suit Properties and as per his father request, D1 surrendered/gave his own land of an extent of 4 Acre 70 cents in Survey Number 192/1A1A in Ramapattinam Village to the Government of Tamilnadu and thereby saved the Suit Properties, does not help the case of the defendants for the reason that as a coparcener, it is his obligations to save the joint family properties.

20. Further, the case of the defendants is that in pursuance of 31/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 the alleged Oral Partition, father of plaintiff and D1 - Mylsamy executed 3 unregistered Wills dated June 9, 1994 (Exs-B.27, 29 and 30), whereby he bequeathed the extent of 3 Acres 21 Cents to D1 in accordance with the Oral Partition. Further, he bequeathed the extent of 13 Acres 78 Cents allotted to his share in the Oral Partition, to D3, and an extent of 15 Acres 20 Cents to D4.

21. The said Wills were allegedly executed in the presence of two attesting witnesses, namely K.Palanisamy, son of Konaiyanaidu, belonging to Rangasamuthiram of Coimbatore, and C.Chinnasamy, son of Late. Chinni Gounder, belonging to Appachigoundanpathi, Kumutipathy of Coimbatore. Further, the Wills were prepared by one Advocate R. Suresh Kumar of Coimbatore. It is stated on the defendants’ side that the aforementioned two attesting witnesses and the Advocate who prepared the Wills are no more.

21.1. The defendants examined three witnesses as D.W.2 to D.W.4 to prove the alleged Wills as per Section 63 of Indian Succession Act, 1925 read with Section 68 and 69 of the Evidence Act, 1872. D.W.2, son of the attesting witness- Palanisamy, has deposed that his father died in 2008. His father was involved in agriculture. Further his father served 32/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 as an office bearer of an agricultural organization along with D1’s father - Mylsamy and they had been well-acquainted for nearly 30 years. His father has studied up to 8th Standard and signs in English. He vouched that the English signatures in Exs-B.27, 29 and 30 – Wills are his father’s. He further produced his father’s driving license (Ex-B.28) for signature verification, and death certificate (Ex-B.24).

21.2. The Court has perused Ex-B.28 - Driving License. It reads as if it is issued on February 24, 1989 to K. Palanisamy, son of Konaian, with the address - 163 Uppilipalayam, Main road, Varadharajapuram, Coimbatore. However, there are discrepancies in the ink colour of the text. There are signs of overwriting and erasure as well. Additionally, the signature is not clear enough for comparison, and the address differs from the one in the Will. Given that D.W.2’s father was an office bearer of an organization and only passed away in 2008, D.W.2 could have very well produced any other document with a clear signature, but he did not, for reasons best known to him. Therefore, the evidence of D.W.2 and Ex-B.28 do not inspire the confidence of this Court.

21.3. D.W.3, son of the attesting witness - Chinnasamy, has deposed that his father passed away in 2008 and produced his father’s 33/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 death certificate (Ex-B.23). He and his father are well acquainted with the father of D1 – Mylsamy. He vouched that the signatures in the Wills are his father’s and produced a Gift Settlement Deed (Ex-B.31) executed by his father for signature verification. This Court has perused Ex-B.31. It is executed in 2008. It is not a contemporaneous document to compare with the signature found in the Wills. D.W.3 should have produced contemporaneous document as his father was working in Panchayat Office. Therefore, this Court is not convinced with Ex-B.31.

21.4. D.W.4, who worked as an advocate clerk from 1990 to 2004 under Advocate R. Suresh Kumar, the alleged preparer of the Wills, deposed that the advocate passed away on January 31, 2004. He also worked along with the advocate as a Taluk Secretary of a political party. He is acquainted with D1’s father, who was the State Vice President of a political organization affiliated with his party. He testified that the advocate signed the Wills in his presence and confirmed that the signatures on the Wills are those of the advocate. He did not depose anything about the presence of D1’s father and the attesting witnesses in the office around the time Exs-B.27, 29, and 30 –Wills were executed, nor did he testify about D1’s father and the witnesses signing the Wills. 34/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 21.5. In short, it is quite unbelievable that both the attestors, and the Advocate who prepared the Wills passed away within 14 years of the Will's execution. Further, the documents submitted are not contemporaneous and hence, cannot be used to compare the signatures forensically. They also have signs of overwriting and erasure. The Wills are surrounded by suspicion. The defendants have not taken any other steps to prove the execution of the Will. Also, for reasons to be stated infra in Paragraph Nos.23.1 to 23.4 herein, this Court is of the view that the defendants have not produced satisfactory evidence to prove the Will.

22. Learned Counsel for the defendants would submit that the plaintiff did not file any rejoinder for the defendant’s pleadings pertaining to Exs-B.27, 29, and 30 –Wills. Per contra, learned Counsel for the plaintiff would submit that in the Injunction Suit filed by the plaintiff, she has clearly pleaded that the alleged Wills are all fabricated. The contention of the learned counsel for the plaintiff is correct and this Court is of the view that both the Suits being tried jointly, there is no necessity to file separate rejoinder. Further law does not compel the plaintiff to file rejoinder. The defendant must prove what he has pleaded. (Vide 35/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Veersakara Varamrayar Vs. Amirthavalliammal and others reported in AIR 1975 Mad 51).

23. Learned Counsel for the plaintiff, would refer to Ex- A.17 to Ex-A.31 and submit that D1 to D4 had fabricated three Wills dated June 9, 1994 based on which, collusively and fraudulently obtained three Court decrees from the same court on the same day viz., July 17, 1997. On the strength of the Court decrees, D1 to D4 effected mutation of revenue records, obtained loans from banks by mortgage by depositing title deed (Exs-A.15 and A.16). Now the defendants turn around and plead ignorance.

23.1. This Court has perused Ex-A.17 to Ex-A.31. Exs- A.18, A.22 and A.27 are the respective plaint copies of the Original Suit Nos.3819, 3821 and 3933 of 1996 on the file of the Principal District Munsif, Coimbatore. One T.Senthil and Minor Ravi Ganesh represented by mother – Malathi (D2) filed O.S.No.3819 of 1996 against D1 herein alleging that D1’s father – Mylsamy executed a Will on June 9, 1994, bequeathing an extent of 13 Acres 78 Cents in Survey No.739/1 in favour of Minor Ravi Ganesh (D3 herein), creating limited ownership in favour of T.Senthil as manager until the Minor Ravi Ganesh attains the age of 36/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 majority. In the said Suit, D1 filed Written Statement and submitted to the order of the Court and further, photocopy of the Will dated June 9, 1994 was marked. The learned District Munsif decreed the Suit and thereby declared the Will dated June 9, 1994 as true, valid and binding on D1.

23.2. Similarly, O.S.No.3821 of 1996 was filed against D1 herein alleging that D1’s father – Mylsamy executed a Will on June 9, 1994, bequeathing an extent of 8 Acres in Survey No.706/2, and 7 Acres 26 Cents in Survey No.708 in favour of Minor Raja Vikram (D4 herein), creating limited ownership in favour of T.Senthil as manager until the Minor Raja Vikram attains the age of majority and this Suit was also decreed in the same manner as the previous Suit.

23.3. Similarly, D1 herein filed O.S.No.3933 of 1996 against T.Senthil alleging that D1’s father - Mylsamy executed a Will creating a life interest in favour of D1 with respect to properties described therein. Since T.Senthil (defendant therein) was disputing the Will, D1 prayed to declare the Will dated June 9, 1994 as true, valid, and binding on the defendant therein – T.Senthil. In the same manner as the previous Suits, this Suit was also decreed.

37/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 23.4.Notably, all the three Suit were filed contemporaneously in the same Court and decreed on the same day i.e., July 17, 1997, in the same manner in absence of the plaintiff who is the person competent to deny the alleged Wills. She is a necessary party to the alleged Suits. It is settled law that Will has to be proved as per Section 63 of Indian Succession Act, 1925 read with Sections 68 of Indian Evidence Act, 1872. Bare perusal of Ex-A.17 to Ex-A.31 would show that the aforementioned Suits are filed collusively and surreptitiously without adding the plaintiff as a party with a view to defeat and defraud her rights. Hence this Court is inclined to accept the contentions of the learned Counsel in this regard. Since the plaintiff was not a party to the said proceedings, the said decrees would not bind the plaintiff.

23.5. Juxtaposing Ex-A.17 to Ex-A.31 with Exs-B.27, 29 and 30, it is clear that though they are executed on the same day by the same person with the subject matter also being more or less the same, the attestors and the recitals are clearly different. This Court wonders whether a person would execute 2 sets of such Wills on the same day with different attestors and different recitals. Further, D1 executed a Gift Settlement 38/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Deed dated June 26, 2007 (Ex.A12) in favour of D2 in respect of a specific extent of 21 Cents in Survey No.708. In the said document, it has been stated that D1’s father Mylsamy died intestate leaving behind D1. Relevant extract is hereunder.

“. . . vdJ jfg;gdhUk;/ mtUila rnfhjuUk; nru;e;J mtu;fSila FLk;g brhj;Jf;fisg; bghUj;J fle;j 30.04.1952k; njjpapy; xU ghfrhrdg;gj;jpuk; vGjp mJ bghs;shr;rp rhu; gjpthsu; mYtyfj;jpy; jhf;fy; bra;J 1- 642-470-477-1223/1952k; bek;guhf gjpthd ghfrhrdg;gj;jpuk; vd; jfg;gdhuhd kapy;rhkpf; ft[z;lUf;F “o” b#l;a{yhf ghj;jpag;gl;l brhj;Jf;fis mtu; ru;tRje;jpu ghj;jpa';fSld; Mz;L mDgtpj;J te;j brhj;Jf;fisg; bghUj;J mtu; ve;jtpjkhd MtzKk; vGjp itf;fhky;

fhykhd gpwF mtUila neuo thupR vd;fpw Kiwapy;

thupRupikg;go rl;lg;go vdf;F ghj;jpag;gl;L vdJ neuo mDgt RthjPdj;jpy; cs;sJk; ehd; ru;t Rje;jpu ghj;jpa';fSld; Mz;L mDgtpj;J tUtJkhd brhj;Jf;fspy; fPnH brhj;J tpguj;jpy; Fwpg;gplg;gl;Ls;s f.r.708 be.fhiy e.V.0.21 brz;l; g{kpia kl;Lk; ,d;W ehd; cdf;F jhd brl;oy;bkz;l; vGjp itj;Js;sjw;F tpguk;... ” (Emphasis supplied) 23.6. In this regard, D1 blames the documenter writer, who according to D1, misguided him out of ignorance and drafted the document in an improper manner. This Court is unable to accept this 39/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 contention for the reason that D1 is a PUC graduate and was holding a post in a national political party. Above recitals in Ex.A12 belies the case of the defendant about oral partition and execution of Ex.B27, Ex.29 and Ex.30 Wills. Thus, Ex-B.27, Ex.29 and Ex.30 are surrounded by strong suspicious circumstances. D1 to D4 have not proved the Wills by removing the strong suspicious circumstances around them. The Trial Court was right in concluding that the Wills relied on by the defendants are not proved. This Court finds no reason to interfere with the said findings. Accordingly, Point Nos.(ii) and (iii) are answered in favour of the plaintiff.

Point No.(iv) - Whether the Trial Court is justified in its conclusion that, the Suit Properties are absolute properties of the father of plaintiff and D1, and hence, in view of Section 8 of the H.S. Act, the plaintiff is entitled ½ share?

24. As stated supra under Point No.(i), the Suit Properties are ancestral and joint family properties, in which, the plaintiff is a coparcener by birth in view of the Section 6 of H.S. Act as amended by 2005 H.S. Amendment Act and Vineetha Sharma’s Case. Hence, the plaintiff and D1 constitutes a coparcenary in which each are entitled half share. The Trial 40/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Court’s finding, based on the plaintiff’s own plea and admission that the Suit Properties are absolute properties of her father - Mylsamy, does not reflect the correct approach. In a Partition Suit, the Court ought to ascertain the character of the property in dispute. Further, Section 8 is applicable only to the cases concerning self-acquired and separate properties. Since the Suit Properties herein are ancestral and joint family properties, this case is governed by Section 6 of the H.S. Act and not Section 8 thereof. The contention of the learned counsels for D1 to D4 is that an extent of Hc.0.15.0 was acquired by the Highways Department from D1's family and in turn, another extent of Hc.0.15.0 was allotted to the D1 and plaint is silent on this matter, which indicates that has not been involved in the affairs of the Suit Properties, deserves to be rejected for the reason that the plaintiff being a coparcener by birth is entitled to any accretion/additional acquisition to the joint family properties. A portion of the suit Properties were acquired in lieu of which some other property was assigned to the joint family. Hence, the plaintiff is entitled interest/share in it too as per Section 6 of the H.S. Act as amended by 2005. Further contention of D1 is that D1 and his father had jointly sold an extent of 1350 Sq.ft of vacant site to one Sivashanmugam on July 25, 1991. The 41/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 said transaction/alienation has been specifically saved under Sub-Section (4) of Section 6 of H.S. Act. Further, in pursuance of the Sale, purchaser's name has been included in the Patta also (Ex-A.3). Hence, Plaintiff is entitled to ½ share in the suit properties as per Section 6 of H.S. Act. Point No.(iv) is answered accordingly.

Point No.(v) - Is the plaintiff’s claim barred by Limitation as per Article 110 of the Limitation Act, 1963?

25. For ease of reference, Article 110 of the Limitation Act, 1963 is reproduced hereunder:

Article Description of appeal Period of Time from which period limitation begins to run 110 By a person excluded from Twelve When the exclusion a joint family property to Years becomes known to enforce a right to share the plaintiff.

therein.

26. As stated supra, the Suit Properties are ancestral properties in which the plaintiff being a coparcener by birth is entitled ½ share. In view of the Section 6 of H.S. Act as amended by 2005 H.S. Amendment Act and the Vineetha Sharma’s case, the plaintiff’s right as a coparcener 42/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 is exercisable on and from September 9, 2005. Under Article 110, the limitation period starts when the plaintiff becomes aware of their exclusion. In other words, Article 110 requires a clear act or behavior that makes the plaintiff aware of their exclusion from the joint family property. Onus is on the defendant to prove when he expressly excluded the plaintiff from the joint family property. In this case, there is absolutely no evidence to suggest that the plaintiff has been excluded from the joint family property for more than 12 years prior to the institution of the Suit. Hence, this Court is of the view that the Suit is not barred by limitation.Point No.(v) is answered accordingly in favour of the plaintiff Point No.(vi) - Whether the Trial Court’s conclusion that, Ex-A.32 – Sale Deed executed by D4 through D1 as his Power agent, in favour of D5 and D6 is not valid and does not confer any title to D5 and D6, even to claim any equity relief, is correct?

27. As decided in Point No.(iv), the plaintiff is entitled to ½ share, and D1, D3 and D4 are jointly entitled ½ share. It is settled law that pendente lite sale is valid subject to the final judgment of the Court. In this case, D5 and D6 purchased an extent of 24.33 Cents in the Suit Properties. 43/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 Considering the fact that the Suit Property is a vast extent of land in which D5 and D6 purchased only a meagre extent; that this meagre extent was purchased to lay road and enable easy access to D5 and D6’s property situated behind some of the Suit Properties; and that no prejudice would be caused to the plaintiff, this Court is of the view that the Sale Deed executed by D4 through his power agent – D1 pending the Partition Suit is not invalid. Hence, the Trial Court’s findings in this regard are liable to set aside. It is settled law that the purchaser of a joint family property pending Suit, can work out their share only during final decree proceedings. The learned Counsel for D5 and D6 sought for the equitable relief of allotting the specific portion they purchased via Ex-A.32 – Sale Deed to themselves. This Court is of the view that the equitable relief can be prayed before the Trial Court at the time of passing final decree. The Trial Court may consider the same on its own merits uninfluenced by any observations made in this Judgment. Point No.(vi) is answered accordingly.

Point No.(vii) -Whether the plaintiff is entitled to the relief of permanent injunction?

44/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018

28. In this case, the plaintiff is entitled ½ share and the D1 to D4 are jointly entitled ½ share. Hence, each sharer is entitled to exercise their property right without causing prejudice to the other sharers. Hence, limited injunction protecting the interest of the plaintiff alone would be justifiable in law. Considering the facts and circumstances of the case, this Court is of the view that plaintiff is entitled to limited injunction restraining the defendants from alienating or encumbering the plaintiff’s ½ share in the Suit Properties till the actual partition of her ½ share in the Suit Properties is effected. The Trial Court has granted a permanent injunction restraining the defendants from alienating or encumbering the Suit Properties against the interest of the plaintiff until the final decree is passed. Although the Trial Court used the term “permanent injunction”, it is, in effect, a limited injunction. Hence, there is no need to interfere with the findings of the Trial Court in this regard. Accordingly, Point No.(vii) is answered in favour of the plaintiff.

Result

29. Resultantly, the Appeal Suits in A.S.Nos.350 of 2017 and 45/48 https://www.mhc.tn.gov.in/judis A.S.Nos.345, 350 of 2017 & 898, 899 of 2018 899 of 2018 are dismissed and the Appeal Suits in A.S.Nos.345 of 2017 and 898 of 2018 are partly allowed in the following terms:

i) The Suit Properties shall be divided into two equal shares and one such share shall be allotted to the Respondent No.1 / plaintiff, namely M.Shanmugavadivu;

ii) The defendants are hereby restrained by way of limited injunction from alienating the Suit Properties against the interest of the Respondent No.1 / plaintiff, namely M.Shanmugavadivu until the final decree is passed.

iii) The Trial Court's finding that Ex.A-32 Sale Deed is not valid, is set aside.

iv) Considering the facts and circumstances of the case and the relationship between the parties, there shall be no order as to costs.

                                                             [R.S.M., J.]                        [R.S.V., J.]
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                    Index              : Yes
                    Internet           : Yes
                    Neutral Citation   : Yes
                    Speaking Order
                    KRK / TK
                    TK
                    To


                    The V-Additional District Judge
                    Coimbatore.




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                                                             R.SUBRAMANIAN, J.
                                                                                            AND
                                                                    R.SAKTHIVEL, J.


                                                                                      KRK/TK




                                  PRE-DELIVERY COMMON JUDGMENT MADE IN
                                      A.S.NOS.345, 350 OF 2017 & 898, 899 OF 2018




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