Madras High Court
Padmavathi Ammal vs Natarajan
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 09.07.2018 PRONOUNCED ON : CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.2096 of 2004 Padmavathi Ammal ... Appellant Vs. 1. Natarajan 2. Veeraraghavan ... Respondents Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 25.03.2004 passed in A.S.No.11 of 2004 on the file of the Additional District Judge (Fast Track Court No.I), Tindivanam, reversing the Judgment and Decree dated 07.12.2001 passed in O.S.No.185 of 1997 on the file of the Additional District Munsif Court, Tindivanam. For Appellant : Mrs.N.Mala For Respondent : Mrs.Chitra Sampath Senior Counsel for Mr.R.Sunilumar JUDGMENT
Challenge in this second appeal is made to the Judgement and Decree dated 25.03.2004 passed in A.S.No.11 of 2004 on the file of the Additional District Judge (Fast Track Court No.I), Tindivanam, reversing the Judgment and Decree dated 07.12.2001 passed in O.S.No.185 of 1997 on the file of the Additional District Munsif Court, Tindivanam.
2. The second appeal has been admitted on the following substantial questions of law:
(i). Whether the lower appellate Court is right in law in thinking that the suit property partakes the character of ancestral property in the absence of specific proof? And
(ii). Whether the lower appellate Court is right in law in considering the recitals in Ex.B2 the partition deed for deciding about the character of the suit properties?
3. Considering the scope of the issues between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. The plaintiff /appellant has laid the suit against the defendants for declaration and permanent injunction.
5. In brief, according to the plaintiff, she is the second wife of the first defendant and the first defendant, at the request of the plaintiff's parents, in consideration of the marriage and in order to provide security to the plaintiff, had executed the settlement deed in favour of the plaintiff on 17.10.1958 in respect of the suit properties and accordingly, it is stated that the plaintiff had married the first defendant and been in the possession and enjoyment of the suit properties and thus, it is stated that as per the terms of the abovesaid settlement deed, the plaintiff is entitled to enjoy the properties comprised in the settlement deed and after the demise of the plaintiff, the property should be enjoyed by the legal heirs born to the plaintiff and the first defendant and contending that the defendants 4 to 7 are the children of the plaintiff and it is only the defendants 4 to 7, who have the vested reminder in respect of the suit properties and on the other hand, the defendants 2 and 3, the children born to the first defendant through his first wife, according to the plaintiff, they had, with a view to deprive the plaintiff's title and interest in respect of the suit properties, had instituted the suit in O.S.No.716 of 1981 seeking partition and they have not impleaded the plaintiff in the said suit and seem to have obtained the decree in the said suit and thereby, attempting to interfere with the plaintiff's possession and enjoyment of the suit properties and accordingly, it is the case of the plaintiff that she had been necessitated to lay the suit for appropriate reliefs.
6. The defendants 2 & 3, who are the main contestants, had resisted the plaintiff's suit contending that the suit properties are not the separate properties of the first defendant and according to them, the suit properties had been acquired by Kangadhara Mudaliar, the father of the first defendant out of his earnings and the same had been enjoyed as the joint family properties by the first defendant and his brother, Srinivasa Mudaliar and by way of the partition effected in 1956, the suit properties had come to be allotted to the first defendant and thus, it is contended by the defendants 1 & 2 that inasmuch as the suit properties partake the character of the ancestral properties, the first defendant would not be competent to execute the settlement deed in respect of the suit properties in favour of the plaintiff and the said settlement deed has not come into force and by virtue of the settlement deed, the plaintiff had not been in the possession and enjoyment of the suit properties and accordingly, contending that the present suit has been laid only to stall the execution of the decree obtained by the defendants in the partition suit in O.S.No.716 of 1981 and accordingly, sought for the dismissal of the plaintiff's suit.
7. The relationship between the parties is not in dispute.
8. It is found that the contesting defendants are challenging the plaintiff's suit on the footing that the first defendant is not competent to settle the suit properties in favour of the plaintiff on the basis that the suit properties are the ancestral properties belonging to the first defendant and them. Per contra, it is the case of the plaintiff that the suit properties are the separate properties of the first defendant and therefore, he is competent to execute the settlement deed in her favour on 17.10.1958 marked as Ex.A1 and accordingly, the settlement deed having been accepted by the plaintiff and the plaintiff being in the possession and enjoyment of the suit properties, it is contended that the defendants 2 & 3, in particular, are not entitled to claim any right in respect of the suit properties.
9. The issue, between the parties, therefore, is with reference to the character of the suit properties as to whether they are the separate properties of the first defendant or the ancestral properties of the first defendant and the defendants 2 & 3. The defendants, in their written statement, have clearly admitted that the suit properties had been acquired by Gangadhara Mudaliar, the father of the first defendant out of his earnings. Thus, it is found that the suit properties are the self acquired properties of Gangadhara Mudaliar, the father of the first defendant. It is not in dispute that Gangadhara Mudalier had two sons viz., the first defendant and one Srinivasan. It is also seen that and also not in dispute that the first defendant and his brother had effected partition of the properties on 16.11.1956 and the copy of the partition deed has come to be marked as Ex.B1.
10. On a perusal of Ex.B1, it is recited therein that the properties described therein had been enjoyed by them as the joint family properties and on that footing, it is contended by the defendants that the suit properties, which had come to be allotted to the first defendant under the abovesaid partition deed, would only partake the character of the ancestral properties in the hands of the first defendant and the defendants 2 & 3 and therefore, the first defendant would not be entitled to effect any settlement deed in respect of the suit properties in favour of the plaintiff by way of Ex.A1 and on that footing, they had challenged the plaintiff's case. In this connection, the second defendant examined as DW1 has admitted that his father and his paternal uncle had divided the grandfather's properties by way of the partition deed marked as Ex.B1. Thus, it is found that even during the course of evidence, the second defendant, DW1 has admitted that the first defendant had acquired the suit properties only by way of Ex.B1 partition deed. In addition to that, it is also admitted by DW1 that it is only the plaintiff, who has been residing in the house comprised in the settlement deed from the date of her marriage and the plaintiff and the first defendant had been living there as husband and wife and thus, it is found that inasmuch as Ex.A1 settlement deed had been accepted by the plaintiff, accordingly, it is seen that she has been in the possession and enjoyment of the same and also living with her husband right from the date of marriage. Further, the defendants 2 & 3 have not challenged the factum of the execution of the settlement deed Ex.A1 in favour of the plaintiff. All that they would state that inasmuch as the properties comprised in the settlement deed are the ancestral properties, the first defendant is not competent to settle the same in favour of the plaintiff. As abovenoted, the materials placed on record go to show that the suit properties had been acquired by the first defendant's father out of his earnings. Admittedly, the suit properties had come to be allotted to the share of the first defendant under Ex.B1 partition deed. In such view of the matter, as rightly contended by the plaintiff's counsel, the property derived by the first defendant by way of Ex.B1 partition deed would only be his independent properties and not the ancestral properties of the first defendant as contended by the defendants 2 & 3. In this connection, the plaintiff's counsel placed strong reliance upon the decisions reported in (1986) 3 Supreme Court Cases 567 ( Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others) as well as the decision of this Court dated 11.08.2010 passed in A.S.No.609 of 2003 (M.Kumaran and another vs. J.Rajesh (Minor) rep.by his mother and natural guardian J.Gomathi and another) and the decision reported in 2013 AIR CC 599 (MAD) (S.Dakshina Vs. Chinnaponnu & Ors). Per contra, the counsel for the defendants placed reliance upon the decision reported in (2003) 1 MLJ 145 (Kanna Gounder and another Vs. Arjuna Gounder), (2008) 7 MLJ 903 (S.C) (Baljinder Singh Vs. Rattan Singh) and (1987) 3 Supreme Court Cases 294 (Thamma Venkata Subbamma (Dead) by LR Vs. Thamma Rattamma and others), for the proposition that the settlement effected in respect of the ancestral properties or coparcener properties is wholly invalid.
11. As rightly putforth by the plaintiff's counsel, considering the devolution of interest under Section 8 of the Hindu Succession Act 1956, it could be seen that the properties derived by the first defendant from his father could only be treated as his separate properties and not as the joint family properties of the first defendant and the defendants 2 & 3 and in this connection, this Court had an occasion to dealwith the above issue in other cases and the said cases had been reported in (2017) 1 MLJ 759 (Chinna Palanisamy Gounder Vs. Latha and others) and (2017)-2-L.W.343 (M.Palaniappan & another Vs. Nachimuthu) and the position of law has been outlined in the decision second referred to as follows:
Held:
Properties derived by first defendant from his father could only be treated as his separate properties not as joint family properties of first defendant and his son viz, the second defendant when son inherits property, as per Section 8, he does not take it as Kartha of his own undivided family, but takes it in his individual capacity Para 20 If self acquired property or joint family property, once get devolved in accordance with Section 8, on principles of intestacy, the joint family property ceases in the hands of the various persons, who have succeeded to it as they hold the property as tenants in common and not as joint tenants. 20. It could be seen that as per the provisions of Hindu Succession Act, 1956, considering the devolution of interest under Section 8 of the Hindu Succession Act, 1956 amongst the Class-I heirs, the properties derived by the first defendant from his father could only be treated as his separate properties and not as the joint family properties of the first defendant and his son viz. the second defendant. To the above position of law, there are ample authorities and a perusal of the decisions reported, which have been cited by the counsel for the defendants, would go to show that the properties derived by the first defendant from his father could only be treated as the separate properties of the first defendant and not as the joint family properties of the first defendant and his son viz., the second defendant. In this connection, a useful reference may be made to the decisions reported in AIR 1979 MADRAS 1 (The Additional Commissioner of Income-tax, Madras-1 V. P.L.Karuppan Chettiar), 1993 Supp (1) Supreme Court Cases 580 (Commissioner of Income Tax V. P.L.Karuppan Chettiar), (1986) 3 Supreme Court Cases 567 (Commissioner of Wealth Tax, Kanpur and Others V. Chander Sen And Others), (2008) 3 Supreme Court Cases 87 (Bhanwar Singh V. Puran And Others) and the latest decision (2016) 4 Supreme Court Cases 68 (Uttam V. Saubhag Singh and Others). A perusal of the above said decisions would go to show that when the son inherits the property, as per Section 8 of the Hindu Succession Act, 1956, he does not take it as Kartha of his own undivided family, but take it in his individual capacity. Therefore, the position of law being above as adumbrated by our High Court and the Apex Court in the above said decisions, the contention of the defendants' counsel that the suit properties are the joint family properties of the defendants 1 and 2 cannot at all be countenanced in any manner.
21. However, still not losing hope, the defendants' counsel pressed into service, the decision reported in (2013) 9 Supreme Court Cases 419 (Rohit Chuhan Vs. Surinder Singh and Others). Though the above said decision may lend support to his contention, however, the above said decision is also taken note of in the decision reported in (2016) 4 Supreme Court Cases 68 (Uttam V. Saubhag Singh and Others) and the apex Court has distinguished the above said decision relied on by the defendants' counsel by holding that in the above said decision, there was no consideration of the effect of Sections 4, 8, 19 and 30 of the Hindu Succession Act, 1956. Therefore, it could be seen that on a conjoint reading of Sections 4,8,19 and 30 of the Hindu Succession Act, 1956, it could be seen that if the self acquired property or joint family property, once they get devolved in accordance with Section 8 of Hindu Succession Act, 1956, on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons, who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
12. In the light of the above position of law as adumbrated by the apex Court and our high Court in the various decisions above referred to, it is evident that the suit properties acquired by the first defendant from his father could only be treated as his separate properties and not the joint family properties as contended by the defendants 2 & 3 and such being the position, it is found that the first defendant would be competent to settle the suit properties in favour of the plaintiff under the settlement deed marked as Ex.A1.
13. The mortgage deeds projected by the defendants marked as Exs.B2 & B3 said to have been executed by the first defendant and others in favour of the third parties by themselves would not in any manner militate against the right, title and interest of the plaintiff in respect of the suit properties acquired under Ex.A1 settlement and it is thus found that Exs.B2 & B3 mortgage deeds would not in any manner be useful to uphold the defence version.
14. In the light of the above discussions, when it is found that the suit properties are only the separate properties of the first defendant and not the joint family properties of the first defendant and the first defendant deriving the right in the suit properties under Ex.B1 partition deed only in his independent capacity, accordingly, it is found that the first appellate Court had erred in rejecting the plaintiff's suit on the footing that the suit properties are only the joint family properties of the first defendant and the defendants 2 & 3 and that, the settlement deed Ex.A1 is invalid. On the other hand, in the light of the above position of law, when it is found that Ex.A1 settlement deed was executed by the first defendant on the footing that the suit properties are his separate properties and when it is found that the suit properties are only the separate properties of the first defendant and when it is further seen that Ex.A1 settlement deed had been accepted by the plaintiff and further, it is noted that the suit properties had been in the possession and enjoyment of the plaintiff as admitted by the defendants, as abovenoted, it is found that it is only the plaintiff, who has title to the suit properties as per the settlement deed Ex.A1 and in such view of the matter, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendants.
For the reasons aforestated, the Judgement and Decree dated 25.03.2004 passed in A.S.No.11 of 2004 on the file of the Additional District Judge (Fast Track Court No.I), Tindivanam are set aside and the Judgment and Decree dated 07.12.2001 passed in O.S.No.185 of 1997 on the file of the Additional District Munsif Court, Tindivanam are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No
Internet : Yes / No
sms 25.07.2018
To
1. The Additional District Judge,
(Fast Track Court No.I), Tindivanam.
2. The Additional District Munsif Court, Tindivanam.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN, J.
sms
Pre-Delivery Judgment made
in S.A.No.2096 of 2004
25.07.2018