Madras High Court
M.Kandasamy vs V.Subramanian on 26 August, 2013
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/08/2013
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
SA(MD)No.1065 of 2009
and
MP(MD)No.2 of 2009
1.M.Kandasamy
2.M.Raja Mareeswari
.. Appellants/Respondents/Plaintiffs
Vs
1.V.Subramanian
.. Respondent/Appellant/4th Defendant
2.K.Muthuvel
3.M.Subbuklakshmi
(Cause title accepted vide order
dated 13.11.2009)
.. Respondents/Respondents 3 & 4
/Defendants 1 & 2
Second Appeal filed under section 100 of CPC against the Judgment and
decree dated 24.07.2009 passed in Appeal Suit No.57 of 2008 by the Fast Track
Court No.I/Additional District Court, Madurai reversing the Judgment and decree
dated 10.03.2008 passed in Original Suit No.134 of 2004 by the First Additional
Sub Court, Madurai.
!For Appellants ... Mr.K.Sekar
^For R - 1 ... Mr.M.P.Senthil
For RR - 2 & 3 ... No appearance
:JUDGMENT
The Judgment and decree dated 24.07.2009 passed in Appeal Suit No.57 of 2008 by the Fast Track Court No.I/Additional District Court, Madurai are being challenged in the present Second Appeal.
2. The appellants herein as plaintiffs have instituted Original Suit No.134 of 2004 on the file of the First Additional Sub Court, Madurai praying to pass a preliminary decree of their 2/3 share by way of partition, wherein the present respondents have been shown as defendants.
3. In the plaint it is averred that the defendants 1 and 2 are the parents of the plaintiffs. The third defendant is the mother of the second defendant and fourth defendant is the son of third defendant. The suit property has been purchased by one Kandasamy Pillai who is none other than the paternal grandfather of the plaintiffs in the year 1958 and he passed away on 07.04.1998. The father of the plaintiffs and his father by name Kandasamy Pillai have lived together as joint family members. By way of birth, each plaintiff is having 1/3 share in the suit property. The remaining 1/3 share belongs to the first defendant. In order to defeat the right of the plaintiffs, the first defendant has executed a gift settlement deed on 19.01.2004 in favour of the second defendant and the second defendant has executed a gift settlement deed in favour of her mother who has been arrayed as third defendant on 28.01.2004 and the third defendant in turn has executed a gift settlement deed in favour of the fourth defendant on 04.02.2004. The gift settlement deeds alleged to have been executed by the defendants 1 to 3 are not at all binding upon the plaintiffs. Since the first defendant has had acted against the interest of the plaintiffs, the present Suit has been instituted for the relief sought for in the plaint.
4. In the written statement filed on the side of the fourth defendant it is averred that the gift settlement deeds mentioned in the plaint are correct. Even in the plaint it has been clearly stated that the plaintiffs are living with their parents. The fourth defendant is in possession and enjoyment of the gifted property and he leased out some portions of the same to some tenants. There is no merit in the Suit and the same deserves to be dismissed.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the Suit as prayed for. Against the Judgment and decree passed by the trial Court, the fourth defendant as appellant has preferred Appeal Suit No.57 of 2008 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the Appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately dismissed the Suit. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiffs as appellants.
7. As agreed by the learned counsel appearing on either side, the present Second Appeal is disposed of on merits at the stage of admission.
8. On the side of the appellants/plaintiffs the following substantial questions of law have been raised for consideration:
(a) Whether the first appellate Court is correct in stating that the grandfather, his only son and his two grand children do not constitute a joint family and they are not living in joint family hence the grand children are not entitled share in the suit property?
(b) Whether the first appellate Court is correct in ignoring the settled law that the essential feature of the ancestral property is that if the person inheriting the property has sons and daughters they become joint owners of coparceners with him and they become entitled to share in it by birth?
(c) Whether the first appellate Court is correct by holding that the suit property is not joint family property even though the first respondent has not questioned character of the property either in his pleadings or in his evidence?
9. The consistent stand taken on the side of the plaintiffs is that the suit property has been purchased by one S.Kandasamy Pillai who is none other than the father of the first defendant. The defendants 1 and 2 are the parents of the plaintiffs. The first defendant so as to defeat the right of the plaintiffs, has executed a gift settlement deed in favour of the second defendant on 14.10.2006 and subsequently the second defendant has executed a gift settlement deed in favour of third defendant who is none other than her mother and the third defendant has executed a gift settlement deed in favour of fourth defendant who is the son of third defendant and since the first defendant has had acted against the interest of the plaintiffs, the present Suit has been instituted for the relief sought for in the plaint.
10. The defence put forth on the side of the fourth defendant is that the plaintiffs are residing with their parents and only for the purpose of defeating right of the fourth defendant the present Suit has been instituted and therefore, the same is liable to be dismissed.
11. The trial Court has decreed the Suit as prayed for. But the first appellate Court after considering the material averments made in the plaint and also after considering the provisions of Section 8 of the Hindu Succession Act, 1956 has come to a definite conclusion to the effect that the plaintiffs are not having any partible interest over the suit property and ultimately non-suited them.
12. The learned counsel appearing for the appellants/plaintiffs has attacked the Judgment and decree passed by the first appellate Court on the following grounds:
(a) The suit property has been purchased by the paternal grandfather of the plaintiffs by name S.Kandasamy Pillai in the year 1958 and he passed away in the year 1998 and during his life time he and first defendant are living as joint family members and by way of birth each plaintiff is having 1/3 share in the suit property.
(b) The first defendant, father of the plaintiffs without any legal necessity has executed a gift settlement deed dated 14.10.2006 in favour of the second defendant who is none other than the mother of the plaintiffs and the second defendant has executed a gift settlement deed in favour of the third defendant who is none other than her mother and the third defendant has executed a gift settlement in favour of fourth defendant. Under the said circumstances, the present Suit has been instituted for the relief sought for in the plaint.
The trial Court has rightly decreed the Suit. But the first appellate Court has erroneously dismissed the same and therefore, the Judgment and decree passed by the first appellate Court are liable to be interfered with.
13. In order to repudiate the contention put forth on the side of the appellants/plaintiffs, the learned counsel appearing for the respondents /defendants has sparingly contended that even in paragraph-5 of the plaint it has been specifically stated that the suit property has been purchased in the year 1958 in the name of S.Kandasamy Pillai who is none other than the father of the first defendant and he passed away in the year 1998 leaving behind him the first defendant as his legal heir and as per Section 8 of the Hindu Succession Act, 1956, the first defendant is alone entitled to succeed the entire estate of the said Kandasamy Pillai and the trial Court without considering the nature of averments put forth in the plaint has erroneously decreed the Suit. But the first appellate Court has rightly non-suited the plaintiffs by way of invoking Section 8 of the said Act and therefore, the Judgment and decree passed by the first appellate Court are not liable to be interfered with.
14. For considering the rival submissions made on either side, the Court has to analyse as to whether the plaintiffs are in aggregation entitled to 2/3 shares in the suit property by virtue of their birth or, whether the first defendant is alone entitled to succeed the entire estate of the deceased S.Kandasamy Pillai as per section 8 of the Hindu Succession Act, 1956.
15. In paragraph-5 of the plaint it has been specifically stated like thus:
The grandfather of the plaintiffs S.Kandasamy Pillai purchased the suit property in the year 1958. He died on 07.04.1998 and after his death, the first defendant and the plaintiffs inherited the suit property.
16. In paragraph-6 of the plaint, it is stated like thus:
The plaintiffs, their father and grandfather were living jointly till the death of their grandfather. After his death the plaintiffs and their father are living jointly and become coparcener in respect of the suit property. The plaintiffs and their father are entitled each 1/3 share in the suit property. The 2nd plaintiff though a female is entitled to 1/3 share, she by birth become a coparcener in her own right in the same manner as the 1st plaintiff and have the same rights in the coparcener property inclusive of the right to claim by survivorship by virtue of Tamil Nadu Act 1 of 1990.
17. The learned counsel appearing for the appellants/plaintiffs has relied upon the decision reported in (2006) 8 Supreme Court Cases 581 (Sheela Devi and others V. Lal Chand and another), wherein the Hon'ble Apex court has had an occasion to dealt with a coparcenary property. Under the said circumstances, the Hon'ble Apex Court has come to a definite conclusion that in a case of coparcenary property, if any person has got birth in a coparcenary is having right by birth and the provision of Section 8 of the Hindu Succession Act, 1956 is not applicable.
18. In order to circumvent the situation created on the side of the appellants/plaintiffs, the learned counsel appearing for the respondents/defendants has relied upon the decision reported in AIR 2007 Supreme Court 1808 (Makhan Singh (D) by LRs. V. Kulwant Singh), wherein the Hon'ble Apex Court has held that "if a property purchased by father using his separate funds, his son is alone entitled to succeed his estate by virtue of Section 8 of the Hindu Succession Act, 1956."
19. In fact, this Court has scrutinised the entire averments made in paragraphs - 5 and 6 of the plaint. In paragraphs - 5 and 6 of the plaint it has been specifically stated that the suit property has been purchased in the year 1958 by the paternal grandfather of the plaintiffs. In paragraph-6 it has been simply stated that the first defendant, his father and plaintiffs have had lived as joint family members. Except the ineffective averments made in the plaint, no where it has been stated to the effect that by utilising joint family nucleus/funds, the paternal grandfather of the plaintiffs has purchased the suit property and thus, the suit property has derived character of joint family property. But in paragraph-5 of the plaint it has been simply stated that the suit property has been purchased by the paternal grandfather of the plaintiffs.
20. Of course it may be true that the first defendant, his father and plaintiffs might have lived together as joint family members. Simply because a joint family/coparcenary has been in existence that does not mean that a purchase made in the name of one of the coparceners/joint family members, is only for the benefit of joint family/coparcenary.
21. In the instant case, there is no specific averments made in the plaint for the purpose of coming to a conclusion that the suit property has been purchased by utilising joint family funds/nucleus by the paternal grandfather of the plaintiffs. Further there is no specific averments in the plaint that the suit property has been put into common hotchpot and thereby treated the same as one of the joint family properties. Since necessary averments are not found in the plaint with regard to alleged character of the suit property to the effect that the same is a joint family property, the Court cannot automatically come to a conclusion that the suit property belongs to joint family consisted of the paternal grandfather of the plaintiffs, first defendant and plaintiffs.
22. In the written statement filed on the side of the fourth defendant it has not been specifically stated to the effect that the suit property is the absolute property of the first defendant. Further in the first appellate Court, on the side of the appellant/fourth defendant a legal point has been raised to the effect that as per section 8 of the Hindu Succession Act, 1956 the first defendant is alone entitled to succeed the estate of his father and thus, the first defendant has become the absolute owner of the suit property.
23. Since the point raised on the side of the appellant/fourth defendant in the first appellate Court is nothing but a legal position, the same can be raised at any point of time.
24. The trial Court without considering the nature of averments made in the plaint and also lack of averments to the effect that the suit property can also be treated as a joint family property, has erroneously decreed the Suit as prayed for. But the first appellate Court after relying upon the provisions of Section 8 of the Hindu Succession Act, 1956 and also after considering the date of death of paternal grandfather of the plaintiffs, has rightly non-suited them by way of holding that the suit property is the separate property of the first defendant. Since the suit property is the separate property of the first defendant, he is having unfettered right to deal with the same as he likes. Therefore, viewing from any angle, the Judgment and decree passed by the first appellate Court do not warrant interference and all the substantial questions of law raised on the side of the appellants/plaintiffs are not having substance at all and altogether the present Second Appeal deserves to be dismissed.
25. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous petition is also dismissed. The Judgment and decree passed in Appeal Suit No.57 of 2008 by the Fast Track Court No.I/Additional District Court, Madurai are confirmed.
mj To
1.The Fast Track Court No.I/ Additional District Court, Madurai
2.The First Additional Sub Court, Madurai