Madras High Court
Arunagiri vs Ayyar Muthuraja on 27 November, 2013
Bench: A.Selvam, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.11.2013 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE V.S.RAVI Appeal Suit (MD)No.266 of 2009 and MP(MD)Nos.2 of 2010 & 1 of 2012 Arunagiri .. Appellant/Plaintiff Vs 1.Ayyar Muthuraja 2.Natesan (died) 3.Subramanian 4.Muruganantham 5.N.Lalitha 6.Karuppayee .. Respondents/Defendants 7.Senthilkumar 8.Shanthi 9.Thilakam (RR - 7 to 9 Brought on record as LRs of deceased R2 vide order dated 17.06.2013) .. Respondents Appeal Suit filed under Section 96 of CPC against the Judgment and decree dated 19.09.2008 passed in Original Suit No.215 of 2004 by the Additional District & Sessions Court/Fast Track Court No.I, Tiruchirapalli. !For Appellant ... Mr.R.Kannan for Mr.K.K.Senthil ^For R - 1 ... No appearance For RR - 2 to 9 ... Mr.G.R.Swaminathan :JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J.) Challenge in this Appeal Suit is to the Judgment and decree dated 19.09.2008 passed in Original Suit No.215 of 2004 by the Additional District & Sessions Court/Fast Track Court No.I, Tiruchirapalli.
2. The appellant herein as plaintiff has instituted Original Suit No.215 of 2004 on the file of the trial Court praying to pass a preliminary decree in respect of 1/3 share of the plaintiff, wherein the present respondents 1 to 6 have been shown as defendants.
3. It is averred in the plaint that the plaintiff is the son of the first defendant. The defendants 1 to 3 are the sons of Chinnathu Muthuraja. The fourth defendant is the son of second defendant. The fifth defendant is the wife of second defendant. The sixth defendant is the wife of third defendant. The erstwhile Hindu joint family consisted of Chinnathu Muthuraja and his three sons, has had owned extensive properties and with regard to same, a registered partition has come into existence on 24.09.1970, wherein 'A & B' schedule properties have been allotted to the shares of Chinnathu Muthuraja and his wife; 'C' schedule property has been allotted to the share of first defendant; 'D' schedule property has been allotted to the share of second defendant and 'E' schedule property has been allotted to the share of third defendant. The plaintiff being the son of the first defendant has become a coparcener. The first defendant has instituted a suit for partition in Original Suit No.283 of 1978 on the file of the Sub Court, Tiruchirapalli, wherein the defendants 2 and 3 have been shown as defendants. In Original Suit No.283 of 1978 compromise has been effected. The first defendant has been acting against the interest of the plaintiff and he is at the hands of the remaining defendants. Since the plaintiff is a coparcener in the joint family consists of himself and first defendant he is having 1/3 share in the suit properties and in order to work out his remedy, the present Suit has been instituted for the relief sought for therein.
4. In the written statement filed on the side of the defendants 2 and 3 and adopted by the defendants 4 and 5 is averred as follows:
It is true that erstwhile joint family consisted of Chinnathu Muthuraja and his three sons who have been arrayed as defendants 1 to 3. It is also true that on 24.09.1970 a registered partition has been effected amongst them, wherein 'A & B' schedule properties have been allotted to the shares of parents, whereas, 'C to E' schedule properties have been allotted to the shares of the defendants 1 to 3. The said Chinnathu Muthuraja has passed away in the year 1973 and his wife has passed away in the year 1975. After their demise, with regard to properties allotted to them, the father of the plaintiff who has been arrayed as first defendant herein as plaintiff has instituted Original Suit No.283 of 1978, wherein a compromise has been effected. Under the said circumstances, the plaintiff has no locus standi to institute the present Suit with regard to suit properties and therefore, the present Suit deserves to be dismissed.
5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the Suit. Against the Judgment and decree passed by the trial Court, the present Appeal Suit has been preferred at the instance of the plaintiff as appellant.
6. Before perpending the rival submissions made on either side, the Court has to narrate the following admitted facts on the basis of the rival pleadings put forth on either side.
7. It is an admitted fact that Chinnathu Muthuraja and his three sons who have been arrayed as defendants 1 to 3 have constituted Hindu joint family and amongst them a registered partition has come into existence on 24.09.1970, wherein 'A and B' schedule properties have been allotted to the shares of Chinnathu Muthuraja and his wife. It is also equally an admitted fact that the Chinnathu Muthuraja has passed away in the year 1973 and his wife has passed away in the year 1975 leaving behind them the defendants 1 to 3 as their legal heirs. After demise of the parents, the first defendant as plaintiff has instituted Original Suit No.283 of 1978 on the file of the Sub Court, Tiruchirapalli praying to pass a preliminary decree in respect of the properties which have been allotted to the share of parents and also some properties which have not been included in the partition deed dated 24.09.1970. In the said circumstances, the plaintiff has instituted the present Suit.
8. The consistent case of the plaintiff is that the plaintiff is the son of first defendant and as a coparcener of joint family consists of himself and his father, he is entitled to maintain the present Suit with regard to his 1/3 share and the trial Court has given a specific finding to the effect that the plaintiff has no locus standi to institute the present Suit and consequently dismissed the same.
9. The learned counsel appearing for the appellant/plaintiff has contended with great vehemence to the effect that the plaintiff being a coparcener of the family consists of himself and first defendant is having right of partition by birth and even though the suit properties are the self-acquired properties of Chinnathu Muthuraja and his wife, the plaintiff is having 1/3 share or atleast 1/6 share and the trial Court without considering the right accrued to the plaintiff by virtue of birth, has erroneously non-suited him by way of holding that the plaintiff has no locus standi to institute the present suit. Under the said circumstances, the Judgment and decree passed by the trial Court are liable to be interfered with.
10. In support of the contention raised on the side of the appellant/plaintiff, Section 265 of Hindu Law by Raghavachari is relied upon. Section 265 deals with right by birth and the said right has been extemplified by way of giving the following example:
"For instance where A having a son B, and a grandson C, has self-acquired property, that property cannot be said to be property in which B and C have right by birth. But the moment 'A' dies intestate, that property descends to his son B and the grandson C get interest in it as coparcenary property even though the character of coparcenary property attached to it long after C's birth.
11. In order to dispel the contention put forth on the side of the appellant/plaintiff, the learned counsel appearing for the respondents 2 to 9 has argued that in the instant case, it is an admitted fact that a partition has taken place on 24.09.1970 amongst Chinnathu Muthuraja and his three sons who have been arrayed as defendants 1 to 3 herein, wherein 'A and B' schedule properties have been allotted to Chinnathu Muthuraja and his wife and they passed away in the year 1973 and 1975 respectively leaving behind them their three sons as their legal heirs. Under the said circumstances and also by virtue of Hindu Succession Act, 1956 the plaintiff being a grandson of the said Chinnathu Muthuraja and his wife, cannot institute the present Suit for the relief of partition and further with regard to properties which have been allotted to parents, a suit has been instituted in Original Suit No.283 of 1978 by the first defendant for the relief of partition, wherein a compromise has been effected. Under the said circumstances, the plaintiff is estopped from claiming any right over the suit properties and the trial Court after considering the legal status of the plaintiff has rightly found that the plaintiff is not having locus standi to institute the present Suit and consequently dismissed the same and therefore, the Judgment and decree passed by the trial Court are not liable to be interfered with.
12. As narrated earlier, the admitted facts are that a registered partition has taken place on 24.09.1970 amongst the said Chinnathu Muthuraja, his wife and their three sons who have been arrayed as defendants 1 to 3 wherein 'A and B' schedule properties have been allotted to the shares of Chinnathu Muthuraja and his wife and they passed away in the year 1973 and 1975 respectively leaving behind them the present defendants 1 to 3 as their legal heirs. The plaintiff is the son of the first defendant. Since the plaintiff is the son of the first defendant, the Court has to analyse as to whether he is having locus standi to institute the present Suit in view of Sections 8 and 15 of the Hindu Succession Act, 1956. Section 8 of the said Act reads as follows:
General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule.
Likewise, Section 15 of the said Act reads as follows:
General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16.-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband
13. From a cursory look of the said provision, it is made clear to the Court that if a male Hindu dies intestate after 1956, by virtue of Section 8, his properties shall devolve upon his sons, daughters (including children of pre-deceased son and daughter) and likewise, if a female Hindu dies intestate after 1956, her property shall devolve upon her sons, daughters (including children of pre-deceased son and daughter) and husband.
14. As narrated earlier, the suit properties have been allotted to the share of Chinnathu Muthuraja and his wife by virtue of the partition deed dated 24.09.1970 and a registration copy of the same has been marked as Ex.A1. Since the suit properties have been allotted to the share of Chinnathu Muthuraja and his wife, it is needless to say that the suit properties are the separate and absolute properties of the said Chinnathu Muthuraja and his wife. It is an admitted fact that Chinnathu Muthuraja has passed away in the year 1973 and his wife has passed away in the year 1975. Since both of them have passed away after enactment of Hindu Succession Act, 1956, it is needless to say that the Court has to rely upon only the provision of Sections 8 and 15 of the said Act and it need not look into the observations or example given in Hindu Law by Raghavachari.
15. In order to encrust the contention put forth on the side of the respondents 2 to 9, the decision reported in (2007) 4 MLJ 993 (N.Ramachandran Vs. E.Varadarajan and another) is relied upon, wherein the learned Single Judge has held that "in case of self acquired property, inheritance of the same should be governed only by the provisions of Section 8 of the Hindu Succession Act, 1956. In fact the learned Single Judge has relied upon the Full Bench decision reported in AIR 1979 1 (The Additional Commissioner of Income Tax, Madras-1 V. P.L.Karuppan Chettiar), wherein it is observed that "exclusion of grandson in the presence of father being the class 1 heir, entitled to succession under Section 8 of the Hindu Succession Act, 1956.
16. Even at the risk of repetition, the Court would like to sum up the following aspects. The admitted case of both parties is that a registered partition has come into existence on 24.09.1970, wherein the suit properties have been allotted to the share of Chinnathu Muthuraja and his wife and both of them have passed away in the year 1973 and 1975 respectively. Under the said circumstances, the defendants 1 to 3 are alone their legal heirs as per Sections 8 and 15 of the Hindu Succession Act, 1956. Since the defendants 1 to 3 are alone legal heirs of the deceased Chinnathu Muthuraja and his wife, the plaintiff, as rightly pointed out by the trial Court has no locus standi to institute the present Suit for the relief of partition. Since the plaintiff has no locus standi to institute the present Suit, it is needless to say that the relief sought for in the plaint cannot be granted.
17. The trial Court after considering the over all circumstances of the present case coupled with available evidence on record has rightly found that the plaintiff is not entitled to get the relief of partition. Further as stated earlier, the father of the plaintiff who has been arrayed as first defendant herein, instituted Original Suit No.283 of 1978 for the relief of partition in respect of the properties allotted to the share of parents, wherein a compromise has been effected. Since the father of the plaintiff has already instituted Original Suit No.283 of 1978, it is needless to say that the plaintiff is precluded to institute the present Suit for identical relief. Therefore, viewing from any angle the contention put forth on the side of the appellant/plaintiff is not factually and legally sustainable and altogether the present Appeal Suit deserves to be dismissed.
18. In fine, this Appeal Suit deserves dismissal and accordingly is dismissed without cost. Connected Miscellaneous Petitions are also dismissed. The Judgment and decree passed in Original Suit No.215 of 2004 by the Additional District & Sessions Court/Fast Track Court No.I, Tiruchirapalli are confirmed. If at all the plaintiff wants to enforce his right by way of instituting a suit in respect of the share allotted to his father (plaintiff in Original Suit No.283 of 1978), he can work out his remedy by way of impleading proper persons.
mj To The Additional District & Sessions Court/ Fast Track Court No.I, Tiruchirapalli