Madras High Court
N.M.R.S.Santaprakash vs N.M.R.Siva on 8 March, 2017
Equivalent citations: AIR 2017 MADRAS 211
Author: P.Kalaiyarasan
Bench: A.Selvam, P.Kalaiyarasan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.03.2017
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
Appeal Suit (MD)No.61 of 2009
and
M.P.(MD) No.1 of 2013
N.M.R.S.Santaprakash .. Appellant/Plaintiff
versus
1.N.M.R.Siva
2.N.M.R.S.Chandrakanthan
3.N.M.R.S.Poornachandhiran
4.R.Sivananthan
5.R.Shanmuganandan
6.R.Anandapadmanaban
7.R.Anandamaheswaran
8.C.Elang Kannan
9.Thara Devi alias Baby
10.Mathanghi
11.Jothimani ...
Respondents/Defendants
PRAYER: Appeal suit is filed under Section 96 of Civil Procedure Code, to
set aside the judgment and decree dated 30.01.2009 made by the Additional
District Judge cum Fast Track Judge No.1, Madurai and decree the suit as
prayed for with costs.
!For Appellants : Mr.Chitra Sampath, senior counsel
for Mr.K.Sekar
^For Respondents : Mr.P.V.Balasubramanian for
M/s.B.F.S.Legal
Associates for RR1&2
Mr.D.Nallathambi for R3
Mr.V.Janakiramulu for RR4
to 7
Mr.M.Rajaraman for R8
R9 to R11 - Exparte
:JUDGMENT
(Judgment of the Court was delivered by P.KALAIYARASAN, J.) This appeal suit is directed against the judgment and decree dismissing the suit for partition passed by the Additional District Judge (Fast Track Court No.1), Madurai dated 30.01.2009 in O.S.No.74 of 2004.
2.The plaint averments are as follows:
2.1. Originally all the properties belonged to N.M.Soobbier. He was married to Muthulakshmiammall and they had no issues and they adopted a son viz., Radhakrishnier. The said N.M.Soobbier had immovable properties in and around Madurai City. During his life time, N.M.Soobbier, executed a registered settlement deed on 12.04.1944 creating life interests in favour of his wife N.M.S.Muthulakshmi Ammal in respect of some of his properties and vesting absolute right to the adopted son N.M.S.Radhakrishnier after her life time. The adopted son N.M.S.Radhakrishnier married Kamalakshi and they had two sons viz., N.M.R.Jambunathan and N.M.R.Sivaa and four daughters viz., C.K.Saradhabai, M.S.Dhanivathibai, M.S.Dinamanibai and A.B.Gandhimathibai. N.M.R.Sivaa married Lalitha and they got three sons, the plaintiff and defendants 2 and
3. 2.2.N.M.Soobbier died in the year 1950 leaving his wife and adopted son as his legal heirs. During the life time of N.M.S.Radhakrishnier, he executed four settlement deeds dated 13.04.1953 settling some of his properties only giving life interest in favour of his four daughters. He also executed a settlement deed in favour of his second daughter Dhaniyavathibai in respect of house property, got from his mother.
N.M.S.Radhakrishnier and his two sons partitioned their joint family properties under a unregistered partition deed dated 22.09.1955, which was given effect to on 13.04.1956.
2.3.Later on 22.04.1956, they again partitioned the house properties and agricultural lands of N.M.S.Muthulakshmiammal, which she got from settlement deed dated 1204.1944. Thus, father and two sons divided all the family properties and joint family properties among themselves. N.M.S.Radhakrishnier predeceased his mother N.M.S.Muthulakshmi Ammal and he died on 05.07.1970. N.M.S.Muthulakshmi Ammal died on 30.01.1980.
2.4.N.M.S.Radhakrishnier executed a registered Will on 03.05.1962 bequeathing his share of the movable properties to his sons N.M.R.Jambunathan and N.M.R.Sivaa with absolute interest. Regarding immovable properties, he gave only life interest to his sons vesting the absolute right to the legal heirs. The properties given in the Will to N.M.R.Sivaa, the first defendant herein is given as A-schedule in the plaint and the ancestral joint family properties and the properties shown and allotted to first defendant in the partition deed dated 22.04.1956 is given as B-schedule in the plaint.
2.5.The first defendant effected a partial partition with his sons on 18.10.1971 regarding the business assets, when the plaintiff was minor. He again made another partial partition with his three sons regarding the joint family properties obtained under the partition deed dated 13.04.1956 to meet out the marriage expenses of the family properties. Those properties are not included in the schedule of properties.
2.6.Misunderstanding arose between the plaintiff and the first defendant regarding the management of the business and the family properties. Therefore, the plaintiff demanded partition of the joint family properties and ancestral properties from his father. But, the defendants evaded to comply the request of the plaintiff.
2.7.Plaintiff's mother, who is also the wife of the first defendant died on 30.01.2003. The defendants have created a Will as if executed by her, which is not valid. A and B schedule properties are ancestral properties and the plaintiff and defendants are jointly enjoying them. The defendants 4 to 8 are the purchasers of the items A-schedule 4(1) and B-schedule 1(ii).
2.8.Ninth defendant is the plaintiff's sister and she has no right to the suit properties. During the pendency of the suit, 9th and 10th defendants sold items 2 to 4 of A-Schedule in favour of 11th defendant on 22.06.2006. Hence, they have been impleaded. Therefore, the plaintiff has come forward with this suit, seeking decree and judgment for division of 1/4th share to the plaintiff.
3.The contention of the written statement filed by the 1st defendant are as follows:
3.1.The suit properties are neither joint family properties nor ancestral properties. Interpretation given by the plaintiff with respect to the partition deed dated 13.04.1956, 18.10.1971 and the Will dated 03.05.1962 are imaginary and for maneuvering to bring the suit for partition. The suit for partition in simpliciter treating the suit properties as joint family properties is totally mischievous and highly illegal besides frivolous and motivated.
3.2.The plaintiff has deliberately suppressed the facts that the suit properties belong to the first defendant as his individual absolute property. The first defendant has always been treating the properties both A and B schedule properties as his separate and individual, absolute properties. The first defendant executed a registered settlement deed dated 17.04.2003, with regard to the B-schedule properties and also item 1 of A-
schedule properties in favour of his sons, the second and third defendants and the second and third defendants have been enjoying the settled properties absolutely by paying property tax etc. The first defendant has also settled a portion of the landed properties in A-schedule item 3(i) by a registered settlement deed dated 12.05.2003 in favour of his younger son, the third defendant herein. He is in possession and enjoyment of the same absolutely by paying land revenue and obtaining separate patta. Having failed in all his nefarious attempts to grab the landed properties, the plaintiff has now resorted to this false suit only with the ulterior motive of unnecessarily harassing and blackmailing this defendant.
3.3.In partnership theatre business, the first defendant and other partners took action and removed plaintiff's management. Anticipating actions for non furnishing of accounts, plaintiff has come forward with this suit. The plaintiff has defamed the prestige and high reputation of the family and indulged in many litigations. The properties sold to the defendants 4 to 8 by the first defendant are the absolute, individual and separate properties of the first defendant. Defendants 4 to 8 are unnecessarily dragged into Court. The plaintiff has absolutely no cause of action for filing the suit. The suit is to be dismissed.
4.The contention of the written statement filed by the second and third defendants are as follows:
The suit properties are neither joint family properties nor ancestral properties. The suit properties are the separate and individual properties of the first defendant, who got them through a female agnate under the settlement deed dated 12.04.1944 and a registered Will dated 03.05.1962. Even in the family partition amongst the plaintiff and the defendants 1 to 3 on 18.10.1971 and 17.10.1973, the suit properties were kept separate and individual properties of the 1st defendant and they were never merged and put in the hotch pot of the joint family properties for partition. The first defendant executed registered settlement deed dated 17.04.2003 and 12.09.2003 settling the properties in favour of the defendants 2 and 3. Therefore, the suit is to be dismissed.
5.The contention of the written statement of the 8th defendant are as follows:
8th defendant purchased an extent of 1.52 acres nanja land comprised in S.No.87/1D from the first defendant for a valuable consideration through two registered sale deeds dated 13.02.2002 and 03.11.2003. On 03.11.2003 itself, 8th defendant purchased 38 cents punja lands comprised in S.No.87/6B for valuable consideration from the plaintiff acquired by him through partition deed dated 17.10.1973. Further, in the sale deed dated 03.11.2003 executed by the first defendant in favour of the 8th defendant, the plaintiff signed as one of the witnesses along with his brothers, Second and third defendants herein. Therefore, the plaintiff is estopped from filing the suit against the 8th defendant. The suit against the 8th defendant without seeking declaration of title is not sustainable under law.
6.The contention of the written statement filed by the 9th defendant are as follows:
The father of the 9th defendant and grandfather of 10th defendant settled items 2 and 3 of item 4 of A-schedule property by a registered settlement deed dated 16.04.2003, long prior to the date of filing of the suit with the knowledge of the plaintiff and the defendants 9 and 10 have sold the same in favour of the 11th defendant for a valuable consideration on 22.06.2006, to which, the plaintiff himself has given consent letter dated 23.06.2006. Therefore, the plaintiff is estopped from questioning the same.
7.The defendants 1 to 3, in their additional written statement, contend that the first defendant had already settled the properties in favour of the defendants 9 and 10 and the plaintiff himself has consented for alienation of the properties under the sale deed dated 22.06.2006 executed by the defendants 9 and 10 in favour of the 11th defendants. The plaintiff has not challenged or disputed the settlement.
8.The Additional District Judge, after framing necessary issues, analysed both oral and documentary evidence and divergent contentions of both sides and dismissed the suit. Aggrieved by the said judgment and decree, the plaintiff preferred this appeal.
9.The learned senior counsel for the appellant/plaintiff contends that the suit properties are ancestral properties in character and as per the recitals of the Will, the Testator Radhakrishnier, father of the first defendant has not given complete and alienable interest to the first defendant has instead stated that the 1st defendant is entitled to enjoy the property. Therefore the suit properties are divisible.
10.The learned counsels for the respondents/defendants contend, per contra, contend that the properties does not have the character of ancestral and the suit properties are all separate properties of the first defendant and therefore, the Additional District Judge has rightly dismissed the suit.
11.There is no dispute that the properties originally belonged to one Soobbier and he executed a settlement deed dated 12.04.1944, giving life estate of the immovable properties to his wife Muthulakshmiammal with vested interest to their adopted son Radhakrishnier. Radhakrishnier has two sons by name N.M.R.Jambunathan and N.M.R.Sivaa, the 1st repondent. Radhakrishnier and his two sons effected partition among themselves twice. Radhakrishnier executed a Will dated 03.05.1962, bequeathing the properties allotted to him in favour of his sons. The properties allotted under the Will to the first defendant viz., N.M.R.Sivaa, are shown as A-schedule properties in the plaint. The properties allotted to the said first defendant in the partition made among himself, his brother and their father on 22.04.1956 are given as B-schedule properties in the plaint.
12.The main contention of the appellant/plaintiff is that the properties are ancestral properties. Therefore, the character of the properties whether it is ancestral or not is to be looked into. There is no dispute that the property originally belonged to Soobbier and he executed a settlement deed dated 12.04.1944. The above document is marked as Ex.B1. The recitals of the document reads thus:
?"vd; Ma[Rf;Fg;gpd; vt;tpjkhd tpy;y';fk; tptfhukpy;yhkypUf;Fk; bghUl;L cd; ed;ikia cj;njrpj;J cd; nrc&kj;jpw;fhf cdf;F xUtpj Mjut[ bra;Jf; bfhLf;f ntQqbkd;W vz;zp vd; ghfj;jpuf; fpilj;J vd; RthjPd mDnghfj;jpypUf;Fk; moapy; fz;l 1/2 yf;fr; brhj;Jf;fisa[k; 3tJ yf;f buhf;fk; U:.10.000-- U:gha; gj;jhapuKk; ,J K:ykha; cdf;Fg; ghj;jpag;gLj;jp nkw;go brhj;Jf;fSk;; buhf;fj;ija[k; cdf;F ehd; bfhLj;jgoahy; nkw;go brhj;Jf;fSk; buhf;fKk; Jifia cd;dpc&;lg;go mDgtpj;Jf; bfhs;s ntz;oaJ/ !;jhth brhj;Jf;fis vt;tpjkhd guhjPd ge;jf';fs; bra;ahky; tUk;gofis kl;Lk; eP mile;J bfhs;s ntz;oaJ. //////////////////// guhjPd ge;jfk; bra;a cdf;F ghj;jpakpy;iy. cd; M[a[Rf;Fg; gpd; nkw;go brhj;ij ek;Kila RtPfhu Fkhuh; uhjhfpUc&;za;ah; mile;J bfhs;s ntz;oaJ/"
The adopted son Radhakrishnier executed a Will on 03.05.1962 and the same has been marked as Ex.A8. The recitals of the said document reads thus:
?ehDk; vd; Mz;kf;fSk; nrh;e;J. 1956 tU> Vg;uy; kP 13 cf;F jkpH; Jh;Kfp tU. rpj;jpiu kP 1 capy; ekJ FLk;g $';fk !;jhtu brhj;Jf;fisa[k; M!;jp gh!;jpfisa[k; ghfg;gphptpid bra;J bfhz;ljpy; moapy; fz;l $';;fk !;jhtu brhj;Jf;fSk; M!;jp gh!;jpfSk; vd;ghfj;jpw;F fpilj;J mJKjy; mitfis ehd; rh;tRje;jpu ghj;jpakha; mile;J mDgtpj;J tUfpnwd;.? The recitals of the above documents do not show that the properties are ancestral in character. The properties are said to have vested with Soobbier through partition. Therefore, the properties are not ancestral properties.
12. The learned Senior counsel for the appellant cited the Division Bench Judgment of this Court, Mariappan, L.S v. Kuppamuthu, reported in (2000) III CTC 405 and contended that the words in the Deed are to be read together in ejusdem generies. In the above Judgment, it has been held as follows :
"In our view the words the words "ge;jf ghujpa';fSf;F cl;gLj;jp itf;f " can at best be construed to mean that the right is not alienable to any outsider and thereby present any prejudicial interest being created and not otherwise."
13. In Ex.A.1, the words " guhjPd ge;jfk; bra;a cdf;F ghj;jpakpy;iy"
cannot be construed to mean what is stated in the above ruling. The above words clearly confer only life estate to Subbulakshmi Ammal and she is not entitled to encumber the property in any way. Therefore, the above Judgment is not applicable to the facts of this case.
14. The genealogy tree of the family is as follows:
N.M.Soobbier ? Muthulakshmi Ammal Adopted Son N.M.S.Radhakrishnier ? Kamalakshi NMR Jambunathan NMR Sivaa Saradhabai (1st Defendant) = Lalitha Chandrakanthan Santaprakash Dhayanidhibai (2nd defendant) (Plaintiff) Dinamanibai Poornachandran Gandhimathibai
15. Soobbier executed settlement deed dated 12.04.1944 with respect to the properties, he got through partition. His adopted son N.M.S.Radhakrishnier and his two sons viz., NMR Jambunathan, first defendant partitioned the properties among themselves. Radhakrishnier executed the Will dated 03.05.1962 bequeathing the properties allotted to his share in favour his sons. In this Will, it has been clearly mentioned about the partition made among Radhakrishnier and his two sons. Thus, the first defendant got the properties under the Will executed by his father and through partition made among himself, his brother and father. Even in the plaint, the plaintiff admits the partition that took place among the first defendant, his brother and father twice one on 22.09.1955, which came into effect on 13.04.1956 and second on 22.04.1956. The properties acquired by the first defendant through the Will of his father and through partition dated 22.04.1956 are shown as suit schedule A and B properties respectively. Since the suit properties have devolved upon the first defendant through the Will and partition during the life time of Radhakrishnier, the same should be treated only as separate properties and the question of inheritance under Section 8 of Hindu Succession Act, 1956 by the sons including the plaintiff during the life time of their father, first defendant does not arise. Section 8 will operate in respect of properties of a person if he dies intestate.
16. The first defendant has got three sons viz., the plaintiff and defendants 2 and 3. The plaintiff admits in his pleadings that there was partition among themselves with respect to business assets and also with respect to the properties acquired on 13.04.1956 under oral partition between the first defendant, his brother and father Radhakrishnier. On 13.04.1956, Radhakrishnier and his two sons viz., NMR Jambunathan and NMR Sivaa (D1) partitioned among themselves certain properties acquired by Radhakrishnier through settlement deed executed by his father. Radhakrishnier instead of executing any document, in the name of oral partition allotted some properties to his sons, keeping some properties for himself.
17. The plaintiff sold the property so acquired under oral partition to 8th defendant. The first defendant also sold certain properties to 8th defendant as his absolute properties and the plaintiff also put his signature as witness in that sale deed. The first defendant settled certain properties in favour of 9th and 10th defendants and the plaintiff also consented for alienation of those properties. Thus, the plaintiff also admits by his conduct that the properties acquired by his father, the first defendant from Radhakrishnier during his life time is separate property of the first defendant.
18. The learned counsel for the appellant cited Valliammai Aachi Vs. Nagappa Chettiyar reported in AIR 1967 SCC 1153 for the proposition that the character of the ancestral property does not change even after partition. It is well settled that if the property is ancestral in character, the Co- parcener gets his right by birth.
19. In the instant case, as already held, the property does not have the character of ancestral. The property has successively devolved from original owner Soobbier to the first defendant through document and by allotment under oral partition during the life time of the person with whom the property vested. Therefore, the trial Court has rightly dismissed the suit and this Court does not find any reason to interfere with the findings of the trial Court.
20. Accordingly, this appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
To
1.The Additional District Judge cum Fast Track Judge No.1, Madurai.
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai..