Madras High Court
Kanthimathinathan vs K. Soundararajan
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 10.10.2018
DELIVERED ON : 01.11.2018
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
A.S No. 921 of 2001
and Cross Objection No. 30 of 2002
A.S No. 921 of 2001
1. Kanthimathinathan
2. S. Ramachandran .. Appellants/Plaintiffs
Vs.
1. K. Soundararajan
2. Annammal @ Gomathi Ammal (Died)
3. Velammal @ Sundarathammal (Died)
4. Nellaiyappa Pillai
5. N. Soundararajan
6. N. Ramiah
7. Annalakshmi
8. Ponnammal (Died) ..Respondents/
Defendants-1, 2, 4 to 9
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(Memo dated 20.03.2002, 07.03.2005 and 27.10.2005 filed to
the effect that Respondents-2 & 3 are died and first
respondent is the legal representative of the deceased
respondents-2 & 3 is recorded (Subject to objection) vide
Court Order dated 21.02.2017 in A.S. No.921 of 2001).
(Memo filed in Corut and recorded as eighth respondent died,
Appellants-1 & 2 are the legal heirs of eigth respondent as per
Order dated 05.09.2018 in A.S.No. 921 of 2001 and Cross Obj.
No.30 of 2002.
Cross Objection No. 30 of 2002
K. Soundararajan .. Respondent-1/Cross Objector
Vs.
1. Kanthimathinathan
2. S. Ramachandran
3. Annammal @ Gomathi Ammal (Died)
4. Velammal @ Sundarathammal (Died)
5. Nellaiyappa Pillai
6. N. Soundararajan
7. N. Ramiah
8. Annalakshmi
9. Ponnammal (Died) .. Respondents 2, 3, 4 to 8
/Respondents-
(Respondents 3 & 9 are given up)
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PRAYER in A.S No. 921 of 2001:
This Appeal is filed under Section 96 of Civil Procedure Code,
against the Judgment and Decree dated 14.07.1999 of the
learned Additional Subordinate Judge, Tirunelveli in O.S.No.30
of 1991.
PRAYER in Cross Obj. (MD) No. 30 of 2002 :
This Cross Objection is filed under Order 41 Rule 22 of Civil
Procedure Code, to allow this Cross Objection and dismiss A.S.
No.921 of 2001.
A.S No. 921 of 2001
For Appellants : Mr. G. Sridharan
for M/s.T.M. Hariharan
For Respondent-1 : Mr.V. Meenakshi Sundaram
for M/s.A. Sankarasubramanian
For Respondents-5 to 7 : No Appearance.
Cross Obj. (MD) No. 30 of 2002
For Cross Objector : Mr.V. Meenakshi Sundaram
for M/s.A. Sankarasubramanian
For Respondents-1 & 2 : Mr. G. Sridharan
for M/s.T.M. Hariharan
For Respondents-5 to 9 : Given up (Vide Batta).
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COMMON JUDGMENT
The plaintiffs in O.S.No.30 of 1991 on the file of the learned Additional Subordinate Judge, Tirunelveli are the appellants in A.S.No.921 of 2001. The first defendant in the said suit is the Cross Objector in Cross Objection No.30 of 2002. O.S.No.30 of 1991 had been partly decreed by Judgment dated 14.07.1999 by the learned Additional Subordinate Judge, Tirunelveli.
2. Challenging the said Judgment, both A.S.No.921 of 2001 and Cross Objection No.30 of 2002 have been filed by the plaintiffs and by the first defendant respectively.
3. O.S.No. 30 of 1991 on the file of the Additional Subordinate Court, Tirunelveli :
The said suit had been filed by two plaintiffs S. Kanthimathinathan and S. Ramachandran who are both sons of late.K. Subbiah Pillai. The ninth defendant Ponnammal who was impleaded subsequent to the institution of the suit was the widow of late.K.Subbiah Pillai. The first defendant K.Soundararajan, the second defendnat Annammal @ Gomathi http://www.judis.nic.in 5 Ammal, the third defendant Ahilandathammal and the fourth defendant Velammal @ Sundarathammal are the brother and sisters of late.Subbiah Pillai. Pending the suit, the third defendant Ahilandathammal died and her husband Nellaiyappa Pillai and sons and daughter, N.Soundararajan, Ramaiah and Annalakshmi were brought on record as defendants-5 to 8. It must be mentioned that K. Subbiah Pillai, the father of the plaintiffs had another brother Kanagasabapathi Pillai. The said Kanagasabapathy Pillai, Subbiah Pillai and K.Soundararajan/first defendant are all sons of Kanthimathinathan Pillai. Kanthimathinathan Pillai and his sons were owned vast extent of nanja lands and house sites in Tirunelveli Town. The properties were not divided and were kept in common. In the suit, two schedule of properties had been given. The first schedule is said to be the properties of the joint family and the second schedule is said to be the properties of a trust created by a forefather Nellaiyappa Pillai by a registered Will dated 07.11.1885. The suit had been filed by the plaintiffs, seeking partition and separate possession of 7/24 share in the first schedule properties, for a direction to render proper accounts with respect to the income earned http://www.judis.nic.in 6 from the suit schedule properties and also for a direction to hand over management of the trust and the trust properties which had been set out in the second schedule to the plaint.
4. The plaintiffs stated that their grandfather Kanthimathinatha Pillai died in 1962. He left behind three sons. Kanagasabapathi Pillai, who died before the institution of the suit as a bachelor, Subbiah Pillai the father of the plaintiffs and Soundararajan the first defendant. He also left behind three daughters who have been impleaded as defendants-2 to 4. It had been stated that during the life time of Kanthimathinatha Pillai, he and his three sons had an undivided 1/4th share in the suit first schedule properties. On his death, his undivided 1/4th share devolved to his children. They were each entitled to a undivided 1/6th share. The three sons, consequently had 7/24th undivided share each and the three daughters each had 1/24th undivided share. One of the sons Kanagasabapathi Pillai died in the year 1985 as a bachelor. His 7/24th share further devolved to the first defendant and the plaintiffs. The plaintiffs' father K.Subbiah Pilai died on 06.05.1975. It was stated that the plaintiffs' http://www.judis.nic.in 7 mother issued a notice on behalf of the plaintiffs who were then minors, seeking partition of the joint family properties. The defendants sent a reply stating that the plaintiffs' father Subbiah Pillai had relinquished all his rights by a registered release deed dated 07.04.1975 in favour of the defendants. The plaintiffs claimed that the said relinquishment deed was not executed by their father in a sound state of mind. He was seriously ill, suffering from cancer at that time. Coercion, fraud and influence was used to obtain the relinquishment deed. He died on 06.05.1975. On the next day 07.05.1975, Kanagasabapathi Pillai the elder brother who was alive at that time and the defendants-2 and 4 executed a deed agreeing that the relinquishment deed was not true and valid. They also agreed that it did not come into existence and was not acted upon. Consequently, the plaintiffs claimed that the relinquishment deed will not bind them. A second notice dated 07.06.1990 was sent to the defendants, seeking partition. Again, the defendants sent a reply denying the plaintiffs' claim. Consequently, left with no other alternative, the suit had been filed, seeking the reliefs as stated above. http://www.judis.nic.in 8
5. The first schedule properties consisted of land and building in Door No.52/C, North Car Street, Tirunelveli Town, Door No.42 and Door No.45 (Western half) in the same street. It also included Door No.5.C, Nainarkulam Puravu Street, in S.Nos.82/1, 62/2, 407/2, 278/2 measuring totally 2.30 acres.
6. The second schedule properties included D.No.45 (Eastern half )North Car Street, Tirunelveli Town and bearing Door No.56 & 47 in Nainarkulam Puravu Street and nanja lands in S. Nos.45/1A, 1411/2, 1412/1, 1412/3 and 292/2 measuring totally 3.47 acres.
7. The defendants-1, 2 and 4 filed their written statement. They stated that the plaintiffs have no right over the suit schedule properties. It was stated out of the first schedule properties, a house bearing Door No.52.C originally belonged to the mother of Kanthimathinatha Pillai. It had been settled by the plaintiffs' father Subbiah Pillai, the first defendant Soundararajan and their brother Kanagasabapathi in favour of the second defendant Annammal @ http://www.judis.nic.in 9 Gomathiammal and her husband Ramalingm by deed dated 10.07.1968. It was also stated that the western half of the Door No.45 and the lands measuring 54 cents ina S.No.278/2 are properties gifted to Kanthimathinatha Pillai by his wife Annammal by deeds dated 23.05.1953 and 13.05.1956. It was stated that after the death of Kanthimathinatha Pillai, all the sons and daughters are jointly inherited the same. With respect to nanja lands measuring 61 cents in S.No.407/2, it had been stated that the first defendant and their brother Kanagasabapathi Pillai and the father of the plaintiffs had jointly executed an othi on 06.06.1953. The second defendant's husband A.Ramalingam Pillai got assignment of the othi on 12.05.1967 and later by sale deed 24.05.1968 he purchased the said property. It was stated that only in the remaining ancestral properties, Subbiah Pillai had an undivided 1/6th share. It was stated that the total value of the share of Subbiah Pillai would come to Rs.9000/-. It was stated that the defendants and their brother Kanagasabapathi Pillai were giving money to K.Subbiah Pillai for his treatment at Chennai. The ninth defendant, the mother of the plaintiffs had deserted Subbiah Pillai and was living with her parents at http://www.judis.nic.in 10 Tenkasi. Consequently, Subbiah Pillai, to receive further amounts for his treatment, executed a registered release deed on 07.04.1975 for cash consideration of Rs.9000/- in favour of the defendants and Kanagasabapathi Pillai. It was stated that the release deed had been executed for family needs. It was an enforceable document. It was also acted upon. He died on 06.05.1975. It was stated that no document, as claimed by the plaintiffs was executed admitting that the release deed was not a true and valid document. It was further stated that Kanagasabapathi Pillai and the defendants-2 and 4 were cornered by the father of the ninth defendant by name Sivagurunatha Pillai who with the help of about 20 men armed with deadly weapons, forced them to sign on stamp papers and also prevented the dead body of the plaintiffs' father from being taken for cremation. It was stated that, consequently, the said document is invalid, ineffective and inoperative. It was a fraudulent and void document. It was not supported by consideration. It was stated that to the notices sent by the mother of the plaintiffs, replies were also sent. It was also stated that Kanagasabapathi Pillai died leaving a registered Will bequeathing all his rights in favour of the http://www.judis.nic.in 11 defendants-2 & 4 R.Annammal @ Gomathi Ammal and Velammal @ Sundarathammal. With respect to the second schedule properties, it was stated that according to the terms of the Trust deed dated 07.11.1885 executed by Nelaiappa Pillai only the senior most person among the subsequent heirs can administered the trust. It was stated that the first defendant is the senior most person and consequently, he alone can function as the sole trustee. It had been stated that he has been managing the second schedule properties as trustee. It was stated that the plaintiffs or any other family members are not entitled to the management of the trust. They had been an earlier litigation in O.S.No.108 of 1964 on the file of the Subordinate Court, Tirunelveli. It was stated that the claim for the second schedule property is barred by resjudicata. It was also stated that the lands in S.No.1411/2 and 1412/3 do not belong to the trust. It was also stated that the plaintiffs have been ousted from the joint possession in the year 1975 itself. It had therefore been stated that the plaintiffs are not entitled to any share and that the suit should be dismissed.
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8. The defendants-2 & 4 filed additional written statement and stated that the ninth defendant Ponnammal, widow of Subbiah Pillai was aware of the release deed dated 07.04.1975 executed by her late husband Subbiah Pillai. It was stated that she did not possess or enjoy the joint family properties. It was stated that she has been ousted from the joint family. It had been stated that her claim has to be dismissed.
9. The defendants-5 & 8 filed their written statement and stated that the suit schedule properties had not been divided. It was also stated that the second schedule properties are trust properties. It was also stated that these defendants were entitled to 1/4th share in the suit schedule properties. They sought 1/4th share in the suit properties.
10. The ninth defendant Ponnammal filed written statement. She stated that, after the death of Kanthimathinatha Pillai in the year 1966, the properties devolved to Kanagasabapathi Pillai, Subbiah Pillai and the first defendant Sundararajan. She was the wife of Subbiah http://www.judis.nic.in 13 Pillai. The properties were kept in common. There was no partition. Her husband became entitled to 7/24th share in the properties. She stated that her husband died on 06.05.1975. He suffered from cancer. She assisted him. His undivided 7/24th share devolved into plaintiffs and to her. She sent advocate notice on 01.10.1975 and 07.06.1990. She claimed that the relinquishment deed executed by Subbiah Pillai on 07.04.1975 is not a true document and will not bind the plaintiffs and her. It was stated that on 07.05.1975, Kanagasabapathi Pillai and the defendants-2 and 4 out of their free will executed a document stating that the relinquishment deed is not true and valid. It was stated that the defendants-1 and 3 did not attend the funeral of Subbiah Pillai. It was stated that, in so far as, the second schedule properties are concerned according to the trust created by Nelaiappa Pillai on 07.11.1885, the first plaintiff who was the eldest son of Subbiah Pillai is entitled for management of the trust properties. It was stated that the defendants are liable to render accounts for the income received from the suit schedule properties. It was stated that she was entitled 7/24th share along with the plaintiffs.
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11. On the basis of the above pleadings, the learned Additional Subordinate Judge, Tirunelveli, framed the following issues for trial.
1. Whether the suit schedule properties have been properly described in the plaint?
2. Whether the document in favour of the second defendant is true?
3. Whether the sale deed in the name of the second defendant dated 24.05.1968 is true and whether it will bind the plaintiffs?
4. Whether the release deed said to have been executed by the father of the plaintiffs on 07.04.1975 is true and whether it will bind the plaintiffs?
5. Whether the plaintiffs have right to claim management for the Trust?
6. To what other reliefs the plaintiffs entitled to?
Thereafter the following additional issues were also framed.
1. Whether the plaintiff are entitled to a share in the properties?
2. Whether the defendants are liable to render account from 06.05.1975?
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12. During trial, the plaintiffs examined three witnesses, Kanthimathinathan, Natarajapillai and Sankaralingam as P.W.1, P.W.2 and P.W.3. The defendants examined four witnesses, Ponnammal (ninth defendant) as D.W.1, R.Nellaiappan (fifth defendant) as D.W.2, Soundararajan (first defendant) as D.W.3 and Velayutham and Peer Mohamed as D.W.4 and D.W.5. The plaintiffs marked Ex.A.1 to Ex.A.16. Ex.A.1 is the trust deed with respect to the second schedule properties. Ex.A.2, dated 07.05.1975 is the 'yathasthu' executed by Kanthimathinatha Pillai and defendants-2 & 4. Ex.A.3 and Ex.A.4 are notices issued by the mother of the plaintiffs. Ex.A.5 is the reply sent by the defendants. Ex.A.6 to Ex.A.11 are letters written by Sivagurunatha Pillai to Sankaralingam Pillai. Ex.A.12 & Ex.A.13 are letters written by Subbiah Pillai to Sankaralingam Pillai. Ex.A.14 to Ex.A.16 are letters written by Sankaralingam Pillai.
13. On the side of the defendants Ex.B.1 to Ex.B.27 were marked. Ex.B.1 was money order receipts for monies sent by Kanagasabapathi Pillai to Subbiah Pillai. Ex.B.2 to http://www.judis.nic.in 16 Ex.B.7 are letters. Ex.B.12 is the settlement deed, dated 10.07.1978. Ex.B.15 is the sale deed dated 24.05.1968. Ex.B. 16 is the release deed dated 07.04.1975. Ex.B.19 to Ex.B.26 are letters written by Subbiah Pillai and Ex.B.278 is the reply notice given by the defendants.
14. On the basis of the oral and documentary evidence, the learned Additional Subordinate Judge, Tirunelveli had partly decreed the suit. The learned trial Judge granted 1/6th undivided share to the plaintiffs and the ninth defendant in the western half of Door No.45 and in 54 cents of land in S.No.278/2. He also granted 7/24 th undivided share in the other properties in the first schedule except the property in Door No.52C and the lands in S.No.407/2 measuring 61 cents. The suit was dismissed with respect to seeking of partition in Door No.52 and 61 cents in S.No.407/2 in first schedule properties. The suit was also dismissed with respect to the claim over second schedule properties.
15. The learned Subordinate Judge, Tirunelveli considered each item of property to examine whether parition http://www.judis.nic.in 17 can be granted with respect to the same. So far as, Door No.52C building was concerned, he found that the first defendant Sundararajan, his eldest brother Kanagasabapathi Pillai and elder brother Subbiah Pillai, the father of the plaintiffs had executed a settlement deed dated 10.07.1978 in favour of the second defendant and her husband Ramalingam. This settlement deed had been produced as Ex.B.12. It was seen that reasons had been advanced for executing the settlement deed. It was stated in the document that the second defendant and her husband Ramalingam Pillai looked after them and had also educated them. They also provided help whenever assistance was required. Consequently, out of gratitude, the settlement deed was executed. The learned trial Judge also found that the document is a valid document. At the same time, it had not been questioned from 1968 to 1991. In view of the above facts, the learned trial Judge stated that the plaintiffs are not entitled to any share in Door No. 52/C in the first schedule properties. With respect to the property in S.No.407/2 measuring 61 cents, it was found that by Ex.B.15 sale deed dated 24.05.1968, the husband of the second defendant Ramalingam Pillai had purchased the same http://www.judis.nic.in 18 from K.Subbiah Pillai and the first defendant Soundararajan. The learned trial Judge also found that it was admitted during the arguments by the plaintiffs that they are not entitled for the share. The learned trial Judge then examined Ex.B.16, the release deed dated 07.04.1975 executed by Subbiah Pillai, the father of the plaintiffs. The document reflects that consideration of Rs.9000/-had been paid. The learned trial Judge found that after the execution of Ex.B.16, Subbiah Pillai died within a period of 29 days. The defendants had produced Ex.B.19 to Ex.B.26 letters to show that they had sent monies towards his treatment. It was also found that Subbiah Pillai himself wrote letters to the defendants. On the other hand, the ninth defendant had stated that towards the treatment of her husband Subbiah Pillai, her brother and her father Sivagurunatha Pillai alone had spent money. In this connection, the plaintiffs had produced Ex.A.9 to Ex.A.16 and Ex.B.1 money order receipts. Ex.B.2 to Ex.B.8 were also letters produced in this connection. The learned trial Judge found that only the brother of Ponnammal/ninth defendant and her father had spent money for the treatment of Subbiah Pillai. The learned trial Judge also observed that Subbiah http://www.judis.nic.in 19 Pillai would not have been mentally fit enough to understand the covenants in the release deed. He also found that, if consideration has been paid for execution of Ex.B.16, then Ex.A.2 the yadasthu would have been totally unnecessary. The learned trial Judge finally held that the release deed Ex.B.16 was invalid. He also stated that Ex.A.2 can be examined for collateral purposes eventhough it was not registered. Consequently, excluding Door No.52/C and S.No.407/2 measuring 61 cents, the learned trial Judge granted partition and separate possession of the other properties in first schedule. With respect to the second schedule, the learned trial Judge found that it was a trust created by a forefather Nellaiappa Pillai. According to the trust, the succession of trustee should be “gpe;ija thhpRfspy; N\];lh;fs;”. The learned trial Judge interpreted this as the eldest member among the legal heirs. The trial Jude therefore found that after the death of Kanthimathinatha Pillai, his eldest son Kanagasabapathi Pillai took control of the trust. Kanagasabapathi Pillai died as a bachelor. His next brother Subbiah Pillai, father of the plaintiffs predeceased him. Consequently, the next eldest member was is younger brother, the first defendant http://www.judis.nic.in 20 K.Soundararajan. The learned trial Judge did not accept the case of the plaintiffs that after Subbiah Pillai, the first plaintiff should have been chosen as the trustee. In view of the stated reasons, the learned Subordinate Judge, dismissed the suit, in so far as the relief sought in schedule-II is concerned. The learned trial Judge also examined the issue of ouster and however found that the ninth defendant had issued notices, seeking partition and on that basis did not accept the contention of the defendants. The learned trial Judge also held that the western half of Door No.45 and 54 cents of land in S.No.278/2 are separate properties of Kanthimathinatha Pillai. Finally, the learned trial Judge decreed the suit in part as stated above.
16. Challenging that Judgment, the plaintiffs have filed the present appeal in A.S.No.921 of 2001. They stated that with respect to the second schedule of the suit properties the line of succession to manage the trust was under the Rule of Primo – Geniture, namely, eldest member of the next generation. From that angle, the first plaintiff should have been accepted to be the trustee of the second item of the suit http://www.judis.nic.in 21 property after the death of his father. The plaintiffs also challenged the finding that Ex.B.12 settlement deed in favour of the second defendant and her husband was binding of the plaintiffs.
17. Challenging the very same Judgment, the first defendant R.Soundararajan, filed Cross Objection No.30 of 2002. The Cross Objection has been filed challenging the rejection of Ex.B.16, the release deed executed by Subbiah Pillai. It had been contented that consideration had been paid towards execution of the release deed. It was denied that the expenses towards the treatment of Subbiah Pillai were only borne by the brother and father of the ninth defendant Ponnammal.
18. Heard arguments advanced by Mr.G. Sridharan, learned Counsel for the appellants in A.S.No. 921 of 2001 and for the first and second respondents in Cross Objection No.30 of 2002 and by Mr.V.Meenakshi Sundaram, learned Counsel for the first respondent in A.S.No.921 of 2001 and in Cross Objection No.30 of 2002 and Mr.D.Nelliappan, learned http://www.judis.nic.in 22 Counsel for the respondents-5 to 7 in A.S. No.921 of 2001. Pending the Appeal, the second and third respondents Annammal @ Gomathi Ammal, Velammal @ Sundarathammal died and a memo had been filed and recorded that the first respondent K.Sundararjan and fifth respondent N.Sundararajan are their legal representatives. The eighth respondent Ponnammal also died, however, the appellants-1 & 2 were her legal representatives. Similarly, in the Cross Objection, the third and fourth respondents died and the ninth respondent also died. Since both the appeal and the Cross Objection arises from the same Judgment, the points for determination are framed in both the appeal and Cross Objection appeal. For the sake of convenience the contesting parties shall be referred to as Plaintiffs and Defendants. The plaintiffs are the appellants and the defendants are the respondents.
19. The points for determination arises in the appeal are;
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1. Whether the reasoning of the learned trial Judge, by placing reliance of Ex.B.16, rejecting grant of partition and separate possession of Door No.52C and 61 cents of land in S.No.407/2 are correct?
2. Whether the interpretation of the learned Judge with respect to Ex.B.13, partition deed dated 30.12.1945 is correct?
3. Whether the interpretation of the learned trial Judge for the term “gpe;ija thhpRfspy; N\];lh;fs;” with respect to the management as trustee of the second schedule properties is correct?
The points which arises for determination in the Cross Objection are;
1. Whether the learned trial Judge had erred in holding that Ex.A.2 can be examined for collateral purposes to over- ride a registered document in Ex.B.16, a release deed?
2. Whether the learned trial Judge was right in holding that Ex.B.16 release deed had not been validly executed?
The common points for determination in both A.S.No.921 of 2001 and Cross Obj. No.30 of 2002 are as follows:
1. Whether the plaintiffs in the suit are entitled for partition and separate possession of the 'A' schedule properties?
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2. Whether the Judgment and Decree of the trial Court requires interference?
20. Background Facts :
Kanthimathinatha Pillai who died in 1962 possessed vast lands and several properties in Tirunelveli. He had three sons, Kanagasabapathi Pillai, Subbiah Pillai and Soundararajan. The properties were joint family properties. They have been set out in schedule-I of the plaint. They were also other properties over which a forefather by name Nellaiappa Pillai had created a trust on 07.11.1885. The properties of the trust were given in schedule-II of the plaint. Kanthimathinatha Pillai died in the year 1962. He left behind, apart from his three sons, three daughters, Annammal @ Gomathiammal, Akilandathammal and Velammal @ Sundarathammal. The second son Subbiah Pillai suffered from cancer. He had prolonged treatment in Chennai. He died on 06.05.1975. The plaintiffs S.Kanthimathinatha Pillai and S.Ramachandran are his sons. The ninth defendant Ponnammal is his wife. The eldest son of Kanthimathinatha Pillai by name Kanagasabapathi Pillai died a bachelor in 1980. http://www.judis.nic.in 25 The ninth defendant Ponnammal issued notices, seeking partition and separate possession. It was denied. Consequently, a suit had been filed, seeking 7/24th share in the properties mentioned in schedule-I and for accounts with respect to the said properties from 06.05.1975 and also to hand over management of the trust and trust properties mentioned in the schedule-II of the plaint. According to the plaintiffs, when Kanthimathinatha Pillai was alive, he and his three sons had an equal 1/4th share in the properties mentioned in schedule-I. When he died, his share divided into 6-equal parts to be shared by the three sons and three daughters. Consequently, the plaintiffs claimed that each one of his three sons became entitled to 7/24th undivided share and each one of his three daughters became entitled to 1/24th undivided share. Kanagasabapathi Pillai died in 1980. His 7/24th share devolved back to the plaintiffs and the first defendant. It is under these circumstances, that the plaintiffs filed the suit, seeking partition and separate possession. They also stated that the defendants had influenced their father to execute a release deed on 07.04.1975. It was stated that he was suffering from cancer at that time. It was stated that the http://www.judis.nic.in 26 release deed was not binding on them. Simultaneously, they also stated that Kanagasabapathi Pillai and the defendants-2 & 4 executed a deed on 07.05.1975, one day after the death of their father accepting that the release deed was not meant to be acted upon.
21. The first defendant stated that among the properties in the schedule-I to the plaint, two properties namely, Door No.52C and lands measuring 61 cents in S.No. 407/2 had been settled in favour of the second defendant Annammal @ Gomathiammal and her husband Ramalingam Pillai by Kanagasabapathi Pillai, Subbiah Pillai and himself. It was therefore stated that the plaintiffs cannot claim partition of those properties. With respect to two other properties, namely, western half of Door No.45 and lands measuring 54 cents in S.No.278/2, it was stated that they were gifted to Kanthimathinatha Pillai by his wife Annammal by deeds dated 23.05.1953 and 13.05.1956. It was therefore stated that after his death, his three sons and three daughters were entitled to an undivided 1/6th share in the suit properties. http://www.judis.nic.in 27
22. The first defendant further stated that Subbiah Pillai had received consideration at the time when he executed release deed and consequently it was stated that the release deed is valid and binding on the plaintiffs. It was also contended that the deed dated 07.05.1975 relied on by the plaintiffs is not a valid document. It was stated that it was obtained by force and coercion by about 20 armed men under the influence of the father of the ninth defendant who forced Kanagasabapathy Pillai and the defendants-2 & 4 to sign the said document.
23. In the light of the above background, the points framed for determination will have to be examined.
24. A.S. No.921 of 2001 : Issues No : 1 & 2 :
Among the properties mentioned in schedule-I of the plaint, the learned Subordinate Judge had refused the relief of partition and separate possession with respect to two properties. These are Door No.52C, North Car Street, Tirunelveli Town and 61 cents in S.No.407/2. The document marked during trial with respect to these properties is http://www.judis.nic.in 28 Ex.B.12. Ex.B.12 is a settlement deed registered as Document No.2034/1968 in the Office of the Joint Sub-Registrar, Tirunelveli, dated 10.07.1968. The said document had been executed in favour of A.Ramalingam Pillai S/o.Arumugam Pillai and his wife Annammal @ Gomathiammal. It had been executed by Kanagasabapathy Pillai, K. Subbiah Pillai and K.Soundararajan. The addresses of the parties have also been given. It was stated that the settlors were brothers of Annammal @ Gomathiammal. It was further stated that even when their parents were alive and even after the death of their parents, the settles took care of them, educated them, helped them, whenever required and looked after them.
25. Consequently, out of love and affection, they were settling the two schedule properties, bearing Door No. 52C, and 61cents of land in S.No.401/2 in favour of the settles. As stated above, this document is a registered document. The registration copy has been produced as Ex.B.12. It is seen that, from 1968, till 1975, when Subbiah Pillai died and till 1980 when Kanagasabapathi Pillai died, both of them did not question this document. Pending the suit also, http://www.judis.nic.in 29 Soundararajan/first defendant did not question this document. The three executors have not questioned the document or disputed their free consent to execute the said document. When that is the case, it does not lie in the mouth of the plaintiffs to challenge the said document. Consequently, I hold that the reasoning of the learned Subordinate Judge, with respect issue Nos.1 & 2 requires no interference.
26. Issue No.3 :
The learned Subordinate Judge also held that two other items of property in the schedule-I namely, western half of Door No.45, North Car Street, Tirunelveli Town and 64 cents of land in S.No.278/2 were the exclusive property of Kanthimathinatha Pillai. The document produced in this connection was Ex.B.13. Ex.B.13 is a registration copy of document No.200/1946. It is a partition deed. It is dated 19.01.1946. The property had been allotted to Kanthimathinatha Pillai under the said partition deed, Ex.B.13. It was a partition of the properties of Arumugavadivambal, who died intestate. Her properties devolved into Kanthimathinatha Pillai and his brothers. In http://www.judis.nic.in 30 that partition deed 54 cents in S.No.278/2 and the western half of Door No.45 had been allotted to Kanthimathinatha Pillai. It was therefore contented that the said properties are exclusive properties of Kanthimathinatha Pillai. Consequently, in those properties, the three sons and three daughters will each get 1/6th undivided share. Consequently, the father of the plaintiffs Subbiah Pillai would get 1/6th undivided share in those properties. I hold the reasoning of the learned trial Judge cannot be faulted with.
27. The plaintiffs have not adduced any evidence to show that these two properties are ancestral properties. At any rate, Ex.B.13 stares in their face. Consequently, I hold that the finding of the learned trial Judge that the plaintiffs are entitled to 1/6th share alone in the western half of Door No. 45 and in 54 cents in S.No.278/2 are correct and are upheld.
28. Issue No. 4 :
The second schedule-II included the eastern portion of Door No.45, North Car Street, two other buildings bearing Door No.56 and 47, Nainarkulam Puravu Street, all in http://www.judis.nic.in 31 Tirunelveli and also nanja lands in S.No.45/1A, 1411/2, 1412/1, 1312/3, 292/2 measuring totally 3.47 acres. A forefather of the parties by name Nellaiappa Pillai had created a trust to feed brahmins from the income of these properties by his Will dated 07.11.1885. According to the Will, the succession to the trust would be 'gpe;ija thhpRfspd; N\];lh;fs;.' This would mean , the eldest male member in the next generation. It is not in dispute that originally Kanthimathinatha Pillai was the Trustee. Thereafter, it devolved to his son Kanagasabapathi Pillai. In respect of the said trust, there was an earlier suit in O.S.No.108/1964. That suit was filed by Kanagasabapathi Pillai against his brother's sons Veerabagu and another person Ponniah Pillai. During the course of trial, Ponniah Pillai was exonerated. The said suit had been filed, seeking declaration as trustee of the present schedule-II properties. In that suit also, the term 'gpe;ija thhpRfspd; N\];lh;fs;.' came up for interpretation. In that suit, the learned Judge held that it meant “subsequent heirs' and the word 'N\];lh;fs; ' would mean elder in the subsequent heir. The judgment was marked as Ex.B.18. The learned trial Judge in the present case placed reliance on Ex.B.18. However, http://www.judis.nic.in 32 I hold that the interpretation of the learned trial Judge in the present case is not correct.
29. In the present case, the grandfather of the plaintiffs Kanthimathinatha Pillai was a trustee. He had three sons, namely, Kanagasabapathi Pillai, Subbiah Pillai and Soundararajan. On his death, Kanagasabapathi Pillai took charge as trustee since he was the senior most male member among the subsequent heirs. That is, he was the eldest male member (N\];lh;) among the subsequent heirs (gpe;ija thhpRfs;). The word 'gpe;ija' would mean 'subsequent' or 'next' heir i.e, the 'next generation'. It would have to mean 'next generation'. It would not mean 'next in age'. Consequently, on the death of Kanagasabapathi Pillai without any legal heirs, the next generation will have to be examined as to who was the eldest male among them. The first plaintiff is the eldest son of Subbiah Pillai. Therefore, in the next generation he becomes entitled to act as trustee. The learned trial Judge had however disqualified the first plaintiff. He had appointed the younger brother of Kanagasabapathi Pillai, Soundararajan, the first defendant as the trustee. Soundararajan is the eldest http://www.judis.nic.in 33 member among the heirs of Kanagasabapathi Pillai. This would be correct if in the trust deed, the line of succession was given as 'thhpRfspd; N\];l ; h;fs;'. This would mean the eldest male among all the legal heirs whether in the same generation or in the next generation. But in the trust deed the inclusion of the word 'gpe;ija' comes significance. It would only mean 'next' generation. In 1885, Nelliappa Pillai would hardly have contemplated a situation were a person lives and dies a bachelor. The idea of the original testator was that succession should move downwards and not parallelly. But the instruction of the testator was that succession devolve onto the eldest among the next or subsequent generation of heirs. Then we would have to go to one step down and determine among the next generation who was eldest male. Then, obviously it is the first plaintiff who has to be declared as the trustee. Consequently, that part of the trial Court Judgment which had negatived claim of the first plaintiff to be declared as trustee for the schedule-II properties is set aside. The point is answered accordingly.
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30. Cross Objection No.30 of 2002 : Issues No.1 & 2 :
The father of the plaintiffs, Subbiah Pillai suffered from cancer. He took treatment in Chennai. Both sides, particularly the ninth defendant, Ponammal and the first defendant, Soundararajan went to some extent to prove that they or people aligned with them alone had spent monies towards his treatment. He was working as Postman in Postal Department in Chennai. The defendants claimed that by Ex.B.19 to 26 letters it would be evident that his brothers spent money for his medical treatment. Further he himself had written letters in Ex.B.9 to Ex.B.11. However, the ninth defendant Ponnamal, his wife, who was examined as D.W.1 claimed that her brother Sankaralingam Pillai and her father Sivagurunatha Pillai alone spent money for his treatment. It must be kept in mind that Sangaralingam Pillai was examined as P.W.3. The plaintiffs and the ninth defendant filed Ex.A.9 to Ex.A.16 and also Ex.B.1 (series) which are money order receipt coupon for sending money and Ex.B.2 and Ex.B.8 letters. Consequently, the said documents will have to be examined to determine who, most probably spent money. But, I hold that, when a member of the family was suffering from cancer, calculating http://www.judis.nic.in 35 the monies spent only exposes the narrow mindedness of the defendants/brothers. They kept accounts to such an extent that when the brother Subbiah Pillai died, they saw to it that in lieu of their monies, properties are taken back by them.
31. The release deed dated 07.04.1975 was marked as Ex.B.16. In Ex.B.16 the signatures of K.Subbiah Pillai are in English. The defendants themselves had produced Ex.B.9 to Ex.B.11, letters written by Subbiah Pillai. Ex.B.9 contains the name of Subbiah Pillai as sender of the letter. It was actually a letter written by the ninth defendant/Ponnammal dated 13.04.1974. It expresses anguish that Subbiah Pillai was deep in debt. There is no evidence of monetary help being offered to her. It was addressed to the second defendant Annammal @ Gomathi Ammal. Ex.P.10 was written by Subbiah Pillai, dated 10.07.1971. This was four years prior to his death. It again reflects the narrow mindedness of the first defendant to produce the same before the Court. It is not related either to his death or was it proximate to his death. Ex.B.11 is also dated 20.09.1971. In both these letters, Subbiah Pillai had signed only in Tamil. Further Ex.A.12 and Ex.A.13 are letters http://www.judis.nic.in 36 written Sankaralingam Pillai. It is a letter written by both Subbiah Pillai and Poonnammal. It is dated 08.03.1975 just a month before his death. Ex.A.13 is letter written by both of them dated 18.02.1975, two months prior to his death. It is seen that they had addressed letters only to the brother-in-law and not to his brothers. Ex.B.16, on the other hand, dated 07.04.975 contains the signature of Subbiah Pillai in English. When Ex.B.16 was executed, both the plaintiffs were born. They were aged 21 and 19 years when the suit was instituted in the year 1991. This means that they have been born around 1977 and 1972. Subbiah Pillai died in the year 1975. In the release deed, not even a whisper is mentioned about his two sons. But, there is mention about the ancestors' properties or joint family properties. When sons are born, they become coparceners of Subbiah Pillai with respect to his share in the joint family properties. Subbiah Pillai cannot release their shares. He is their father and guardian. He has simply released all his shares. I hold that this act is illegal and invalid. Apart from that, he has been suffering from cancer and his health status was very poor. It is the evidence of D.W.1, his wife, that “,wf;Fk;NghJ vdJ fzth; Neha;tha;g;gl;L http://www.judis.nic.in 37 kpfTk; Nkhrkhf ,Ue;jJ. Gw;W Nehahy; ,we;Jtpl;lhh;. ,uz;L tUl fhykhf Neha;tha;g;gl;L ,we;jhh;”. She also stated “;kUj;Jt nryT vd; mz;zDk; mg;ghTk; nra;jhh;fs;.” Further, “me;j Neuj;jpy; vdJ mg;ghTk;> mz;zDk; kzpahh;lh; %yk; kw;Wk; NehpYk; gzk; nfhLj;jhh;fs;. Further, “ vdJ fzth; Neha;tha;g;gl;bUf;Fk; fhyj;jpy; gpujpthjpfs; cjtp nra;atpy;iy. kUj;Jtr; nryT> guhkhpg;G nryT Mfpaitfs; mth;fs; nryT nra;jjhf $WtJ cz;ikay;y. It was further stated that, Ex.A.1, money order (series) were actually return of loan borrowed by Kanagasabapathi Pillai from Subbiah Pillai. It is seen that defendants are purely money minded. They reduced everything to monetary terms. D.W.1 further stated '07.04.1975-y; vd;Dila fzth; cly;epiyAk;> kdepiyAk; Nkhrkhf ,Ue;jJ”. Further, 'vd; fzth; ,we;j gpwF jhd; tpLjiyg; gj;jpuk; vOjpa tptuk; njhpate;jJ'.
32. In the face of the above evidence, I hold that the entire document Ex.B.16, had been obtained by fraud. It is a void document. Primarily, he had no right to release the shares of the minor children. There is no mention about the minor children at all in the document. They are his sons who are to succeed to his estate. Further, a mere reading of the http://www.judis.nic.in 38 document shows that it was only because of the advise of mediators and elders, the release deed was being executed. This also implies that there was no voluntary consent in executing the release deed. There is also no proof about the consideration of Rs.9000/- being paid. In the letters produced, the ninth defendant was speaking about expenses to the tune of Rs.250/- and Rs.700/-. In these circumstances, I hold that is highly improbable that the defendants spent with a huge sum of Rs.9000/-and executed a release deed. The signature of Subbiah Pillai in the release deed is artificial in nature. It is more like an artistic work than like a signature. In all the documents produced, the signature of Subbiah Pillai was only in Tamil. Consequently, I am not able to convince myself to accept the validity of Ex.B.16, Release Deed.
33. In 2004(9) SCC, Page 468, Krishna Mohan Kul ALIAS Nani Charan Kul and Another Vs. Pratima Maity and Others, the Supreme Court had observed that, when a close relative is the beneficiary of a document then the burden shifts on him to prove execution. In that case also a very old man had executed a release deed. The Supreme Court http://www.judis.nic.in 39 said that the burden shifts to the beneficiaries to prove execution. It had been observed as follows:
“When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of http://www.judis.nic.in 40 Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who inpeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. http://www.judis.nic.in 41
13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :
"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."
15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short 'Contract Act').
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34. The learned Counsel for the Cross objector had criticised reliance placed by the trial Judge on Ex.A.2. I hold that the learned trial Judge rightly concluded that Ex.A.2 can be looked into for collateral purpose. Ex.A.2 has been attested by many witnesses. I hold that there is no infirmity in the rejection of Ex.B.16 and reliance placed on Ex.A.2. Even dehors Ex.A.2, I hold Ex.B.16 is void and non est.
35. The learned Counsel for the cross objector relied on AIR 1966 SC 337, Thayyil Mammo and another Vs. Kottiath Ramunni and others, and argued that where consideration is paid then there is transfer of rights. That Judgment proceeded on the ground that the release deed was validly executed. In the present case, fraud is alleged and accepts by the Court.
36. Consequently, I find no infirmity in the reasoning of the learned trial Judge with respect to the points under consideration.
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37. In the result,
1. A.S. No.921 of 2001 is partly allowed.
2. The Judgment and Decree dated 14.07.1999 in O.S.No.30 of 1991 passed by the learned Additional Subordinate Court, Tirunelveli, in so far as the suit was dismissed with respect to the declaration relating to schedule-II properties the plaint is set aside. The suit in O.S.No.30 of 1991 is decreed with respect to the declaration relating to schedule-II properties of the plaint. The Judgment and Decree in other aspects is confirmed.
3. Cross Objection No.30 of 2002 is dismissed. No Costs.
01.11.2018
Internet : Yes/No
Index : Yes/No
ksa
http://www.judis.nic.in
44
C.V.KARTHIKEYAN, J.
ksa
Pre-Delivery Judgment in
A.S No. 921 of 2001 and
Cross Obj. No. 30 of 2002
01.11.2018
http://www.judis.nic.in