Madras High Court
Gothaiammal vs Dhanalakshmi on 8 July, 2021
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
SA(MD).No.664 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.04.2021
PRONOUNCED ON : 08.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
SA(MD).No.664 of 2016
(Through Video Conferencing)
1. Gothaiammal
2. Jeyalakshmi (died)
3. P.Samuthiram
4. S.Murali Krishnan
5. Kiruthiga Appellants
Vs.
1. Dhanalakshmi
2. Gurusamy
3. Maheswaran
4. Latha
5. Suguna
6. S.Jothi
7. Shanmugavel Respondents
Prayer:- This Second Appeal has been filed, under Section 100 of CPC, against
the judgement and decree, dated,18.02.2016, passed in AS.No.23 of 2010, by
the Principal District Court, Virudhunagar at Srivilliputhur, reversing the
judgement and decree, dated, 05.07.2010, passed in OS.No.113 of 2006, by
the Sub Court, Srivilliputhur.
For Appellants : Mr.Mr.S.Manikandan
For Respondents : Mr.Mr.S.Ramesh for Mr.V.Raghavachari-RR1to6
Mr.N.Vallinayagam-R7
JUDGEMENT
1. This Second Appeal has been filed, against the judgement and decree, 1/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 dated,18.02.2016, passed in AS.No.23 of 2010, by the Principal District Court, Virudhunagar at Srivilliputhur, reversing the judgement and decree, dated, 05.07.2010, passed in OS.No.113 of 2006, by the Sub Court, Srivilliputhur.
2. The case of the Plaintiffs, in a nutshell, as set out, in the plaint is as follows:-
a) The Plaintiffs are sisters. The 1st Defendant is the wife of the Plaintiff's deceased brother Thangavel. The Defendants 2 to 7 are the legal representatives of the 1st Defendant. The 8th Defendant is another brother of the Plaintiffs. The husband of the 1st Defendant died intestate leaving behind the Defendants 1 to 7, as his legal heirs and another brother Murugesan also died as bachelor in 1969. The father of the Plaintiffs and the 8th Defendant, Gurusamy Chettiar had two wives.
Through the first wife, Parvathyammal, the Plaintiff's father had one son Muniyandi and one daughter Subbulakshmi. Through the 2nd wife, Packiyathammal, he had two daughters, the Plaintiffs and three sons, 8 th Defendant, 1st Defendant's husband Thangavel and the deceased Murugesan.
b) During the life time of the father of the Plaintiffs, there was a dispute with regard to his property among the children of the 1st wife and the 2nd wife. Muniyandi, son of the 1st wife had filed OS.No.87 of 1951 for partition and the said suit was compromised. By virtue of such compromise, the Plaintiffs' father was given some properties and he had sold few properties during his life time. The remaining properties are in joint 2/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 possession of the Plaintiffs and the Defendants.
c) The mother of the Plaintiffs, Packiayathammal had purchased the suit 1st Schedule property under a registered, sale deed, dated 28.02.1958 and the suit 2nd Schedule property, under a registered sale deed, dated 13.12.1957. Till the life time of Plaintiffs' mother, the Schedule properties had been jointly enjoyed by the father and the mother of the Plaintiffs, Plaintiffs and the husband of the 1st Defendant and the 8 th Defendant. The Plaintiffs' mother died intestate in 1991 and the Plaintiffs' father also predeceased their mother on 01.11.1956. After the demise of the Plaintiffs' parent and the 1st Defendant's husband Thangavel, the entire plaint Schedule properties have been commonly enjoyed by the Plaintiffs and the Defendants without any division by metes and bounds.
d) From and out of the income derived from the 2nd Schedule properties, tax and kist for the suit properties have been paid commonly. Taking advantage of the absence of the Plaintiffs, the Defendants had colluded together and evaded to give their due shares and to give true accounts and encumbered the suit properties. The mortgages and the othi would not bind the Plaintiffs. In 2003, the Plaintiffs demanded for partition and for rendition of accounts, for which no response. Hence, the Plaintiffs were constrained to issue a legal notice dated 07.10.2003 to the Defendants. Only the 8th Defendant sent a reply dated 16.10.2003, wherein the share of the Plaintiffs was admitted. The suit properties are the self acquired properties of the Plaintiffs' mother and the Plaintiffs and 3/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 8th Defendant are each equally entitled to 1/4th share and the Defendants 1 to 7 are jointly entitled to 1/4 share. In such circumstances, the suit has been filed, seeking partition and mesne profits.
3. The case of the 8th Defendant, as set out in his written statement, is that the facts that the suit properties were purchased in the name of their mother, Packiathammal, under two sale deeds, dated 28.2.1958 and 13.12.1959. The father of the Plaintiffs died on 1.11.1956, and Packiathammal died in 1991 are admitted. However, the fact that from the date of demise of their father i.e. 1.11.1956 and till the date of their mother in 1991, the suit properties were in joint possession of the Plaintiffs and the Defendants is false. The marriage of the Plaintiffs were performed from and out of the income derived from the joint family properties. Even for purchase some other properties, the mother of the Plaintiffs had given amount from the income of the joint family properties and apart from that, the Plaintiffs were given gold ornaments to the tune of 70 sovereigns of gold and silver articles. Even during the life time of their mother, the Plaintiffs themselves agreed to partition the suit properties in equal shares among the brothers and hence, they have no claim over the same. The Plaintiffs have also admitted that the properties acquired through partition in the earlier suit shall be partitioned between the husband of the 1st Defendant and the 8th Defendant. Though it is alleged by the Plaintiffs that to the legal notice issued by the Plaintiffs, the 8th Defendant sent a reply dated, 16.10.2003, the contents of the was reply notice was not made as per the instructions of the 8 th Defendant. In such 4/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 circumstances, the suit is liable to be dismissed.
4. The case of the Defendants 1, 2 and 6, as set out in their written statement, is that the Plaintiffs have no right in the suit properties and they never in possession of same. During the life of the mother of the Plaintiffs, the Plaintiffs had given consent to the arrangement that the suit properties shall be partitioned in equal share by the 8th Defendant and the husband of the 1st Defendant and hence, the Plaintiffs are not entitled for partition of the suit properties and in such circumstances, the suit is liable to be dismissed.
5. The, Plaintiffs, in the reply statement, while reiterating the averments made in the plaint, has stated that in both the self-acquired and the ancestral properties of the father, the Plaintiffs are entitled to 1/4 th share and the suit properties are standing in the name of their mother, Packiathammal, without any division by metes and bounds and that the husband of the 1st Defendant and the 8th Defendant never enjoyed the suit properties and the averments made in the written statement filed by the 8th Defendant are false.
6. Necessary issues were framed by the Trial Court. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A9 were marked and PW.1 was examined. On the side of the Defendants, Ex.B1 to Ex.B3 were marked and DW.1 was examined. On considering the evidence, the Trial Court had decreed the suit for partition. On the appeal, the lower appellate court had allowed the appeal, setting aside the judgement and decree of the Trial Court. Aggrieved against the same, this Second Appeal has been filed by the Plaintiffs.
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7. This Second Appeal was admitted, on the following substantial questions of law:-
(a) Whether the lower appellate court was right in concluding that the plaintiffs have failed to establish the exclusive title of Packiyathammal, over the suit properties, despite the fact that the sale deeds, dated 13.12.1957 and 21.02.1958, under which the suit properties were purchased, standing in the name of Packiyathammal?
(b) Whether the plea that the properties were purchased in the name of Packiyathammal, out of the joint family funds, is opposed to the Prohibition of Benami Properties Transactions Act, 1988?
8. This Court heard the submissions of the learned counsel on either side and also their rival contentions on the substantial questions of law framed as above.
9. The learned counsel for the Appellant has submitted that the lower appellate court erred in setting aside the judgement and decree of the Trial Court on surmises and conjectures and that when the suit properties are standing in the name of the mother of the parties, the Plaintiffs are entitled to the decree of partition and as such, the lower appellate court erred in brushing aside the findings of the Trial Court in favour of the Plaintiffs and that even summing that the suit properties were purchased by their father, even then, the Plaintiffs are entitled to shares and that even assuming that the marriage of the Plaintiffs were conducted by the 8th Defendant, it will not preclude the Plaintiffs from claiming their right in the suit properties and it would not operate as relinquishment of their right. The learned counsel would further submit that mere not including some properties of the father is not a 6/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 ground to deny the partition of the property of the mother and for such reasons, the impugned judgement of the lower appellate court is not sustainable. The learned counsel would rely on the decisions reported in AIR 1963 Orissa 45 (Harihar Rajguru Mohapatra Vs. Nabakishore Rajaguru Mohapatra), AIR 1954 RAJ 269 (Sambhudutt Vs. Srinarain), AIR 2017 HP 73 (Pradeep Chand Sharma Vs. Budhi Devi and others) AND 1952 2 MLJ 241 (Parakkandiyil Kutti Vs. Kakkat Kunhammad).
10.The learned counsel for the Respondents would submit that the mother of the parties had no source of income and that the suit properties were purchased from and out of the joint family income and the same were not in joint possession and that even during the life time of their mother, the Plaintiffs themselves agreed to partition the suit properties in equal shares among the husband of the 1st Defendant and the 8 th Defendant and also agreed that the properties acquired through partition in the earlier suit shall be partitioned between the husband of the 1st Defendant and the 8 th Defendant and hence, the Plaintiffs are not entitled to get any share in the suit properties. The learned counsel would further submit that the contents of the reply notice was not made as per the instructions of the 8 th Defendant and that there is no infirmity or illegality in the findings of the lower appellate court and as such, this Second Appeal is liable to be dismissed. The learned counsel would rely on the decisions reported in 2006 1 TLT 116 (Gandhi Vs. Saminatha Gounder and another) and 2000 2 MLJ 755 (Thulasi Ammal Vs. S.Rajaram and others) 7/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016
11.This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record
12.Since both the substantial questions of law are intrinsically interlinked with each other, the same are being decided by common discussions and reasons.
13.The relationship between the Appellants and the Defendants is not disputed. The dispute is with regard to partition of the suit properties between the daughters, Plaintiffs and the son and his legal heirs. The Plaintiffs claim partition of the suit properties on the basis of two registered sale deeds executed in favour of the mother of the parties. The Defendants claim exclusive ownership of the suit properties on the basis that the suit properties were purchased from and out of the joint family income and the Plaintiffs themselves relinquished their right in respect of the suit properties in an oral partition.
14.The 1st Plaintiff is PW.1, though whom, as many as nine documents were marked as Ex.P1 to Ex.P9. Ex.A1 and Ex.A2 are the registered sale deeds, dated 21.02.1958 and 13.12.1957, executed in favour of the mother of the Plaintiffs in respect of the suit properties Thus, the suit properties are standing in the name of the mother of the parties and the execution of the said sale deeds is also admitted by the Defendants.
15.Ex.A3 is copy of the property tax demand register for the period from 2002-2003 to 2006-2007, standing in the name of the mother of the parties. Ex.A4, house tax receipt is also standing in the name of the mother of the 8/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 parties. Ex.A9 is the encumbrance certificate. Ex.A5, dated 7.10.2003, is the legal notice sent by the Plaintiffs to the Defendants. Ex.A8 is the reply notice, dated 16.10.2003, sent by the 8th Defendant. In Ex.A8, it is stated that the 8th Defendant has no objection to give the shares due to the Plaintiffs.
16.The 2nd Defendant was examined as DW.1, who had deposed in his oral evidence that he was not aware of the administration of the suit properties and that no document was produced by the Defendants 1, 2 and 6 to prove that the suit properties were purchased from and out of the joint family income and that even though the 8th Defendant had stated in his written statement that the Plaintiffs agreed to partition the suit properties among the husband of the 1st Defendant and the 8th Defendant, but in Ex.A8, reply notice, no such averment is made and the 8th Defendant admitted in Ex.A8 that there are mortgages and othi in respect of the suit properties and it would bind the Plaintiffs also.
17.In so far as the contention of the 8th Defendant that the contents of the reply notice, Ex.A8 were not made according to his instructions, is concerned, the same cannot be believed, inasmuch as the 8 th Defendant did not come forward to adduce any oral evidence to substantiate the same.
18.Further, Defendants did not produce any iota of evidence to show that suit properties had been purchased from and out of the joint family income and even in the written statement filed by the 8th Defendant, there is no whisper about the same.
19.The further contention of the Defendants is that in respect of the suit 9/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 properties, during the life time of the mother of the parties, the Plaintiffs had relinquished their rights in an oral partition and as such, the Plaintiffs are not entitled for partition. The said contention cannot also be accepted, since the said oral partition is not substantiated by any valid oral and documentary evidence and also in view of the fact that as of now, statutory taxes are being levied only in the name of the mother of the parties and consequently, the said alleged oral partition agreed by the mother of the parties is also not put into effect.
20.Whether a suit for partition should comprise all the properties or whether it can be brought in respect of a portion of such properties would depend upon many circumstances of each and every case. There is no absolute rule of law prohibiting a suit for partition of some of the properties only and even assuming that some properties have been left out, the parties are not precluded from effecting partition of those properties at a subsequent stage. In this case, the non-inclusion of some properties of the father for partition is not a ground to deny partition of the suit properties.
21.In respect of the suit properties, the sale deeds, Ex.A1 and Ex.A2 are admittedly in the name of the mother of the parties. As per Section 14 of the Hindu Succession Act, any property, both immovable and immovable, possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as a full owner thereof and not as a limited owner. Thus, the suit properties are the exclusive properties of the mother of the properties as full owner.
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22.As per Section 15 of the Hindu Succession Act, on the date of a Hindu woman dying intestate, the property would devolve upon her son and daughter and they are equally entitled to the same. In this case, since the suit properties are the self-acquired properties of the mother of parties, who died intestate, the Plaintiffs, after the demise of their mother, can claim partition of the said properties.
23.In so far as the contention of the Defendants that the suit properties are not in joint possession, is concerned, as per Ex.B2 and Ex.B2, letters written by the 2nd Defendant, who is the legal of the 1st Defendant, it is clear that the Defendants never enjoyed the suit properties and there was no income from the suit properties. Even as per Ex.A8, reply notice sent by the 8 th Defendant, the said contention is not accepted.
24.In view of the above discussions and in the light of the materials on record, this Court comes to the conclusion that when the suit properties were purchased in the individual name of the mother of the properties, under Ex.A1 and Ex.A2, the suit properties are the self acquired properties of the mother of the properties and it is also admitted by the 8th Defendant that the Plaintiffs have due shares in the suit properties and that after her demise, the suit properties would devolve upon her legal heirs, namely, the Plaintiffs and the Defendants and that as of now, since the suit properties are standing in the name of the mother of the parties, without any division, by metes and bounds, the Plaintiffs, husband of the 1st Defendant and the 8 th Defendant are entitled to each 1/4th share in the suit properties. 11/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016
25.This Court also comes to the conclusion that in the absence of any evidence produced by the Defendants to show that suit properties are not the joint family properties, the judgement and decree granted by the Trial Court, appreciating the evidence both oral and documentary, in a proper and perspective manner, cannot be interfered with and accordingly, it warrants no interference by this Court and that the lower appellate court erred in appraising the evidence on record properly and erred in giving a finding that the Plaintiffs have failed to establish the exclusive title of their mother, Packiyathammal, over the suit properties, while passing the impugned judgement, which warrants interference by this Court. The substantial questions of law are answered in favour of the Appellants and against the Respondents.
26.In fine, this Second Appeal succeeds and accordingly, the same is allowed.
No costs.
08.07.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The Principal District Court, Virudhunagar at Srivilliputhur
2. The Sub Court, Srivilliputhur
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai 12/13 https://www.mhc.tn.gov.in/judis/ SA(MD).No.664 of 2016 A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in SA(MD).No.664 of 2016 08.07.2021 13/13 https://www.mhc.tn.gov.in/judis/