Madras High Court
Selvi Duraiswamy vs R.Santhanam on 21 December, 2017
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS JUDGMENT RESERVED ON :12.12.2017 JUDGMENT PRONOUNCED ON : 21.12.2017 CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.S.No.185 of 2011 1.Selvi Duraiswamy 2.P.Vasanthi 3.M.usha ... Plaintiffs Vs. 1.R.Santhanam 2.N.Rangamani 3.R.Dhanalakshmi (Deceased) [Plaintiffs and the defendants 1 and 2 who are already on record has been recorded as legal heirs of the deceased 3rd defendant as per the order dated 30.08.2017 in the memo in C.S.No.185 of 2011.] ... Defendants PRAYER : Plaint filed under Order IV Rule 1 of O.S. Rules read with Order VII Rule 1 of Code of Civil Procedure, praying for the following judgment and decree:- (a)Declaring the Settlement Deeds dated 09.12.1985 and 11.12.1985 executed by the second defendant in favour of the third defendant and the Settlement Deed dated 07.03.2008 executed by the third defendant in favour of the first defendant are null and void insofar as the palintiffs' share in the suit schedule property; (b)Directing the partition and separate possession of the suit schedule property by metes and bounds and allotment of 1/5 share in the same to each of the plaintiffs; (c)Directing the defendants to pay the plaintiffs mesne profits from the suit property till possession of their share is handed over to them; (d)For a permanent injunction restraining the defendants or their men or agent or any one claiming through them from altering the physical features of the suit property till the property is divided by metes and bounds and (e)for costs of the suit. For Plaintiffs : Mrs.Chitra Sampath, Senior Counsel for M/s.P.V.Rajeswari For Defendants : Mr.S.Balasubramanian for M/s.G.Mohana Rangan J U D G M E N T
The suit is for partition filed by the daughters of the 2nd defendant, claiming 1/5th share each.
2. According to the plaintiffs, the suit property originally belonged to one Periya Munian, he having purchased the same under the Sale Deed dated 12.08.1933. The said Periya Munian died leaving behind two sons viz., Periya Narayanan and Chinna Narayanan. He had executed a Will on 15.06.1941, in and by which he had bequeathed the properties to his elder son Periya Narayanan, with a direction that he should settle one of the house properties viz., the suit property on the younger son Chinna Narayanan.
3. It is not in dispute that as per the direction contained in the said Will, the elder son viz., Periya Narayanan, executed a settlement deed dated 07.04.1959, in favour of his younger brother, settling the suit property on him. The settlement deed itself recites that it is executed pursuant to the direction by the father Periya Munian in his Will dated 15.06.1941. Therefore, according to the plaintiffs, the property assumes the character of ancestral property in the hands of Chinna Narayanan.
4. Chinna Narayanan died on 21.11.1977, leaving behind his wife Papammal and the second defendant to succeed him. Pappammal wife of Chinna Narayanan died on 14.07.1989. Dhanalakshmi, the 3rd defendant/ wife of the second defendant died pending suit on 08.01.2017.
5. The plaintiffs who are the daughters of the second defendant would contend that, in view of the enactment of Hindu Succession (Amendment) Act, 2005 [Act 39(2005)], they had become coparceners along with the 2nd defendant and as such they are entitled to 1/5th share in the suit property. It is also claimed that the 2nd defendant had executed two settlement deeds dated 09.12.1985 and 11.12.1985 in favour of his wife Dhanalakshmi.
6. According to the plaintiffs, those settlement deeds are invalid since Rangamani, the second defendant did not have an absolute right over the properties and in view of the fact that the 1st defendant santhanam, who was born on 10.06.1965, was a coparcener along with the 2nd defendant, the settlement of the properties by a coparcener, in favour of his wife, cannot be considered to be valid. The plaintiffs would also allege that the 2nd defendant and the 3rd defendant viz., Rangamani and Dhanalakshmi had executed another settlement deed dated 07.03.2008 in favour of the 1st defendant Santhanam. The plaintiffs would also contend that the said settlement deed is hit by the amended provisions of Section 6 of the Hindu Succession Act.
7. Hence, the plaintiffs had come forward with the present suit seeking a declaration that the 3 settlement deeds dated 09.12.1985, 11.12.1985 and 07.03.2008 are invalid and for partition and separate possession of their 1/5th share each in the suit property.
8. The defendants 1 to 3 would resist the suit contending that the property was self acquired property, in the hands of Periya Munian and in terms of Will dated 15.06.1941, and the settlement deed dated 07.04.1959, Chinna Narayanan was the absolute owner of the property, on his death the property devolved on his son Rangamani, the 2nd defendant and his wife Pappammal. On the death of Pappammal in 1989, her share would also devolve on her only son Rangamani, thus Rangamani is the absolute owner. The said Rangamani had already settled the property in favour of the 3rd defendant Dhanalakshmi and thereafter, in 2008 i.e., on 07.03.2008, the 2nd defendant Rangamani and the 3rd defendant Dhanalakshmi had executed another settlement Deed in favour of the 1st defendant. Therefore, the property would be the absolute property of the 1st defendant. It is also contended that, the plaintiffs got married on 07.11.1982, 23.02.1986 and 10.03.1989 respectively. Therefore, according to the defendants, the plaintiffs would not become coparceners under Act 39/2005. It is also claimed that the plaintiffs were aware of the execution of the settlement deeds referred supra and they cannot challenge the validity of the settlement deeds now. On the above pleadings the defendants sought for dismissal of the suit.
9. Considering the rival pleadings this Court had framed the following issues for determination in the suit:
1.Whether the suit property is joint family or coparcenary property?
2.Whether the plaintiffs are coparceners and co-owners of the property?
3.Whether the settlement deeds dated 09.12.1985, 11.12.1985 and 07.03.2008 are true, valid and acted upon?
4.Whether the suit is barred by limitation?
5.Whether the Court fee paid by the plaintiffs is correct?
6.Whether the plaintiffs are entitled to decree for partition as prayed for in the suit?
7.Whether the plaintiffs are entitled to decree for permanent injunction and mesne profit?
8.To what reliefs the parties are entitled to?
10. During the trial the first plaintiff Selvi was examined as PW1 and Exs.P1 to P7 were marked. On the side of the defendants, the 1st defendant Santhanam, examined himself as DW1 and Exs.D1 to D8 were marked. The 3rd defendant Dhanalakshmi wife of Rangamani died pending suit. The plaintiffs and the defendants 1 and 2 who were already on record were recorded as legal heirs of the deceased 3rd defendant.
Issue No.1:
11. This issue relates to the character of the property in the hands of Chinna Narayanan. As it can be seen from the pleadings, as well as evidence on record, the suit property had been purchased by Periya Munian, in the year 1933. He had died leaving a Will in the year 1941, as per the said Will, the elder son of Periya Munian viz., Periya Narayanan was to take the properties on his death and thereafter execute a Settlement Deed in favour of his younger son viz., Chinna Narayanan.
12. Pursuant to the said direction, Periya Narayanan had executed a Settlement Deed dated 07.04.1959, which has been marked as Ex.P1. Ex.P1 recites that, though, as per the Will, he has to take the property absolutely, his father had expressed a desire that the suit property must be taken by the younger son Chinna Narayanan and the elder son was directed to execute the Settlement Deed in favour of the younger son.
13. The said document also recites that the Settlement Deed dated 07.04.1959, was executed as per the desire of the father Periya Munian. From the recitals in the Settlement Deed dated 07.04.1959, it is very clear that the property was inherited by Chinna Narayanan from his father, though, it is through a Settlement Deed executed by his brother as per the wishes of the father, the Settlement Deed recites that the settlee viz., Chinna Narayanan has been in possession of the property paying the necessary taxes for a long period.
14. Mrs.Chitra Sampath, learned Senior Counsel appearing for the plaintiffs would contend that the property having been inherited by the son from his father viz., the male ancestor, it is an ancestral property in the hands of Chinna Narayanan. She would also contend that, the fact that it was given to the elder son, with a direction to him, to hand it over to the younger son, at an appropriate time would not change the character of the property as ancestral in the hands of Chinna Narayanan. She would also rely upon the following passage in N.R.Raghavachariar's Hindu Law, 9th Edition:
244. Ancestral Property: The term "ancestral property", which is a technical term having a special meaning, does not mean property inherited from any ancestor, male or female, paternal or maternal, near or remote, but only such property as is inherited by a male from father, father's father and father's father's father. Such inheritor's son, son's son and son's son's son get an interest in it by birth and can interdict improper alienations by the inheritor, whose position in respect of that property, though it will otherwise be absolute, is reduced, in the presence of such descendants, to that of an owner with restricted rights.
15. She would contend that since, Periya Munian had died prior to coming into force of the Hindu Succession Act 1956, the property having been inherited by his son from his father would part take the character of ancestral property and he would have only a restricted right.
16. Relying upon the aforesaid passage, Mrs.Chitra Sampath, learned Senior Counsel appearing for the plaintiffs would contend that the property in the hands of Chinna Narayanan, assumed the character of ancestral property in which his son viz., Rangamani, had right by birth. It is not in dispute that Chinna Narayanan died on 21.11.1977, leaving behind Pappammal, his wife and Rangamani, his son. The execution of the Settlement Deed dated 07.04.1959 is not in dispute. As already observed the Settlement Deed dated 07.04.1959, recognizes the desire of the father, to the effect that the suit property must be taken by his second son Chinna Narayanan.
17. Mr.S.Balasubramanian, learned counsel appearing for the defendants is also unable to dispute the contents of the Settlement Deed. He would, however, contend that after enactment of Hindu Succession Act, 1956, any inheritance from the male hindu could be only be under Section 8 and therefore, the property becomes absolute property of Chinna Narayanan in his hands after the coming into force of the Hindu Succession Act, 1956.
18. On the aforesaid premise the learned counsel would contend that, once the property assumes the character of self acquired property in the hands of Chinna Narayanan and Chinna Narayanan having died in 1977 leaving behind his wife Pappammal and his only son Rangamani, the 2nd defendant, they would inherit the property as class I heirs under Section 8. On the death of Pappammal in 1989, Rangamani being her only son would get absolute right over the property, in view of Section 15 of the Hindu Succession Act.
19. Therefore, according to Mr.S.Balasubramanian, learned counsel appearing for the defendants, the property in the hands of Chinna Narayanan as well as Rangamani would be the self acquired property and the same cannot be termed as ancestral property.
20. As already observed, the fact that the property belonged to Periya Munian is not in dispute. It is also not in dispute that the Settlement Deed dated 07.04.1959 was executed by Periya Narayanan in favour of Chinna Narayanan only as per the wishes of the father viz., Periya Munian. Once it is found that the property was inherited by Chinna Narayanan, from his father Periya Munian it assumes the character of ancestral property and once the son is born to Chinna Narayanan, that son would also have right by birth to the suit property thus making Chinna Narayanan the owner with restricted rights. Therefore, there is no escape from the conclusion that the suit property was ancestral property in the hands of Chinna Narayanan and his son Rangamani, the 2nd defendant had obtained a right by birth over the same. Issue No.1 is answered accordingly.
Issue No.2:
21. This issue relates to the status of the plaintiffs viz-a-viz the 1st defendant and the 2nd defendant. The Hindu Succession (Amendment) Act, 39 of 2005, is enacted with the object of making daughters of a coparcener also coparceners by giving them equal rights in the ancestral property. The Act came into force on 09.09.2005. The only requirement in order to make the daughters coparceners is that their father should have been alive on 09.09.2005 and that there should not have been any valid alienation of the property prior to 20.12.2004. The father of the plaintiffs - Rangamni is alive even as on today. Therefore, the plaintiffs would become coparceners along with their father on and from 09.09.2005.
22. The question whether there was a valid alienation of the property prior to the coming into force of the Act will be dealt with while dealing with the validity of the Settlement Deeds dated 09.12.1985, 11.12.1985 and 07.03.2008. For the purpose of deciding whether the plaintiffs would become coparceners or not it is enough to see whether their father was alive on 09.09.2005 and that the property in the hands of the father could be termed as ancestral property.
23. While dealing with issue No.1, it is already been concluded that the property in the hands of Chinna Narayanan was ancestral property. On the birth of the 2nd defendant Rangamani, he would get a right by birth and as observed by Shri.N.R.Raghavachariar's book on Hindu Law in 9th Edition, on birth of the son, the property in the hands of the inheritor viz., Chinna Narayanan, would be held by him as a owner with restricted rights and the son can interdict improper alienation by him.
24. Therefore, upon coming into force of the Hindu Succession (Amendment) Act, 1956, [Act 39 of 2005], the plaintiffs would become coparceners along with their father viz., the 2nd defendant and their brother 1st defendant in respect of the property, that is, held by the 2nd defendant. Therefore, the 2nd issue is answered in favour of the plaintiffs to the effect that they would also become coparcenres along with their father.
Issue No.3:
25. This issue relates to the validity of the Settlement Deeds dated 09.12.1985, 11.12.1985 and 07.03.2008. By the two Settlement Deeds dated 09.12.1985 and 11.12.1985, the 2nd defendant had chosen to settle the property in favour of his wife, the 3rd defendant. It is a trite proposition of law, that a coparcener has no right to execute a settlement of his undivided interest in the coparcenery property, either in favor of his wife or their heirs without the consent of other coparceners.
26. It is in evidence that, the 1st defendant Santhanam was born on 10.06.1965. Therefore, the right that the 2nd defendant possessed in the properties became restricted right and the 1st defendant Santhanam had acquired the right by birth in the properties even on 10.06.1965. Therefore, on the date of execution of the Settlement Deeds dated 09.12.1985 and 11.12.1985, the 2nd defendant Rangamani was not the absolute owner of the property, he was only the coparcener having undivided interest in the property. It is not the case of the defendant that those two Settlement Deeds were executed at the time of marriage or in consideration of the marriage, they came to be executed in 1985, when the 1st plaintiff is already married and the plaintiffs 2 and 3 and the 1st defendant were in existence as legal heirs.
27. Mrs.Chitra Sampath, learned Senior Counsel appearing for the plaintiffs would contend that the 2nd defendant had no right to settle the entire property on his wife, when the 1st defendant, who is a coparcener was already in existence. Therefore, according to her, the Settlement Deeds dated 09.12.1985 and 11.12.1985 are invalid.
28. Mr.S.Balasubramanian, learned counsel appearing for the defendants is unable to counter the said submissions of the learned counsel for the plaintiffs. As already stated, the law is settled as regards execution of the Settlement Deeds or transfers without consideration of properties by a coparcener. Though, Section 30 of the Hindu Succession Act, enables the coparcener to execute the Will with reference to his share in the coparcenery property, he is precluded from transferring his undivided share without consideration. This view of mine is supported by the judgment of this Court in Subramanian Vs. Kosalai Ammal dated 29.04.2014 made in S.A.No.2068 of 2004.
29. Therefore, the two Settlement Deeds dated 09.12.1985 and 11.12.1985 executed by the 2nd defendant in favour of the 3rd defendant cannot be held to be valid. Insofar as the Settlement Deed dated 07.03.2008 is concerned it is directly hit by the provisions of Section 6 as amended by Act 39 of 2005. The amended Section 6 only protects the alienation made prior to 20.12.2004. Therefore, the Settlement Deed dated 07.03.2008, cannot be held to be valid. The plaintiffs are entitled to ignore the same and seek partition. However, the plaintiffs have sought for the relief of declaration that the Settlement Deed is not valid. In view of the provisions of the amended Section 6 of the Hindu Succession Act, I am constrained to hold that the Settlement Deed dated 07.03.2008 executed by the defendants 2 and 3 in favour of the 1st defendant cannot be upheld. Hence, issue No.3 is also answered in favour of the plaintiffs to the effect that the three Settlement Deeds dated 09.12.1985, 11.12.1985 and 07.03.2008 are invalid.
Issue No.4:
30. This issue relates to the question of limitation, the suit being one for partition and declaration that the Settlement Deeds are invalid, as they have been executed by a person who is incompetent, it cannot be technically pleaded that the suit is barred by limitation. At best, the defendants could plead ouster. A perusal of the written statement of the defendants would show that they have not pleaded ouster. Hence, this issue is also decided against the defendants and I conclude that the suit is not barred by limitation.
Issue No.5:
31. This issue relates to payment of Court fee, the plaintiffs have valued the suit under Section 37(2) of the Court Fees Act and had paid a fixed Court fee of Rs.3,000/-. Once it is found that the property is ancestral property and the plaintiffs would become coparceners, the possession of the defendants is deemed to be possession on behalf of the plaintiffs also. Therefore, the valuation of the suit under Section 37(2) is in my opinion, a proper valuation. Hence, I find that the Court fee paid is proper.
Issue No.6:
32. This issue relates to the entitlement of plaintiffs to claim partition. I have already concluded that the property in the hands of Chinna Narayanan is ancestral property and the plaintiffs would become coparceners on and from 09.09.2005 i.e., the date of coming into force of the Hindu Succession (Amendment) Act, 39 of 2005. Therefore, it follows that the plaintiffs are entitled to seek partition.
33. The next question that arises is, what is the share that the plaintiffs would be entitled? The plaintiffs are claiming 1/5th share each, on the ground that, on the death of Chinna Narayanan, the property devolved on his only son Rangamani and therefore, the plaintiffs would become coparceners with him and they would each be entitled to 1/5th share along with the defendants 1 and 2.
34. As rightly contended by Mr.S.Balasubramanian, learned counsel appearing for the defendants, the plaintiffs will not be entitled to 1/5th share. Admittedly Chinna Narayanan died on 21.11.1977, after coming into force of Hindu Succession Act, 1956. Therefore, we have to first determine, what is the property that devolved on Rangamani on the death of Chinna Narayanan. Since Chinna Narayanan died leaving behind Pappammal, his wife, as class I heir, we will have to first determine what is the interest of Chinna Narayanan in the coparcenery property when he died. For this purpose we will have to assume that, the partition between the coparceners just prior to the death of Chinna Narayanan. In that event, Chinna Narayanan would be entitled to = share and his son Rangamani would be entitled to the other = share as coparcener. The = share of Chinna Narayanan which is his interest in the mitakshara coparcenery property would be inherited by his class I heirs under Section 8 of the said Act.
35. His class I heirs were his wife Pappammal and his son Rangamani. Therefore, Pappammal would get 1/4th share and Rangamani would get one = share that had devolved on him in his capacity as coparcener and another 1/4th share as class I heir. Therefore, Rangamani would be entitled to 3/4th share in the property. On the death of Pappammal on 14.07.1989 Rangamani would inherit the 1/4th share under Section 15.
36. Therefore, Rangamani would become entitled to = share that devolved on him as coparcener and the other = share inherited by him as class I heir of Chinna Narayanan and Pappammal. The = share which had devolved on Rangamani under Section 6 as coparcener would retain the character of coparcenery property and the remaining = share that had been inherited by him as class I heir of his father Chinna Narayanan and his mother Pappammal would be his absolute property, as held by the Honble full Bench of this Court in the Additional Commissioner Income Tax, Madras Vs. P.L.Karuppan Chettiar reported in AIR 1979 Madras 1, which has been approved by the Honble Supreme Court in Commissioner of Wealth Tax, Kanpur vs. Chander Sen reported in AIR 1986 SC 1753.
37. Mr.S.Balasubramanian, learned counsel appearing for the defendants would contend that Chinna Narayanan having died after 1956, the inheritance to his property would be governed only by Section 8 of the Hindu Succession Act. He would also rely upon the judgment of the Hon'ble Supreme Court in Uttam v. Saubhag Singh and others reported in 2016 2 CTC 306(SC).
38. I am unable to persuade myself to accept the said contention of the learned counsel. While elaborately stating the law relating to succession under proviso to Section 6, the Hon'ble Supreme Court in Uttam's case (supra) had summarized the law as follows:
(i)When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara Coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the Coparcenary (vide Section 6)
(ii)To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara Coparcenaryry property is property that can be disposed of by him by will or other testamentary disposition.
(iii)A second exception engrafted on proposition (i) is contained in the Proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class-I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the Coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv)In order to determine the share of the Hindu male Coparcener, who is governed by Section 6 Proviso, a Partition is effected by operation of law immediately before his death. In this Partition, all the Coparceners and the male Hindus Widow get a share in the Joint Family property.
(v)On the application of Section 8 of the Act, either by reason for the death of a male Hindu leaving self-acquired property would devolve only by intestacy and not survivorship.
(vi)On a conjoint reading of Sections 4, 8 & 19 of the Act, after Joint Family property has been distributed in accordance with Section 8 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 a joint tenants.
39. I had an occasion to consider the effect of the judgment of the Hon'ble Supreme Court in Uttam v. Saubhag Singh and others reported in 2016 2 CTC 306(SC) in M.Krishnamoorthy v. K.Pondeepankar. and others reported in 2017 (3) CTC 170. I have pointed out that the Hon'ble Supreme Court in Uttam v.Saubhag Singh and others had made it very clear that only property which is inherited under Section 8 or property that devolves by application of proviso to Section 6 would devolve by intestate succession under the Act and not by survivorship.
40. What is the property that is inherited under Section 8 or that devolves under proviso to Section 6?
Section 8 would apply only in the case of self acquired property of male hindu and in case of ancestral property or coparcener property the devolution is governed by Section 6 of the Act. Sub-Section 3 of Section 6 provides that when a male hindu dies after commencement of the Hindu Succession (Amendment) Act 2005 his interest in the property of a joint family governed by mitakshara law shall, devolve by testamentary or intestate succession as the case may be. The explanation to Sub-Section 3 reads as follows:
Explanation.-- For the purpose of this sub-section, the interest of a Hindu Mitakshara Coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
41. In view of the above said explanation it is clear that the interest of male hindu in the mitakshara coparcener will have to be ascertained by assuming partition immediately before his death. This position of law has been re-iterated by the Hon'ble Supreme Court in Uttam v.Saubhag Singh and others case also. Therefore, there is very little scope to contend that either the un-amended Section 6 or the amended Section 6 would have the effect of terminating the coparcenery.
42. Even in M.Krishnamoorthy v. K.Pondeepankar. and others reported in 2017 (3) CTC 170, the distinction has been pointed out by me and it has been held that Section 6, in fact, protects devolution of interest on the coparceners even after coming into force of Hindu Succession Act 1956. The amending Act 39 of 2005 only makes daughters as coparceners and does not in any manner whittle down the devolution of interest in the coparcenery property.
43. Therefore, I am unable to persuade myself to accept the submission of Mr.S.Balasubramanian, learned counsel appearing for the defendants, that on the death of Chinna Narayanan, Rangamani and Pappammal would inherit the property under Section 8 or under sub-Section 3 of Section 6, as absolute owners. The said theory could be applied only to the = share which Rangamani obtained as class I heir of Chinna Narayanan and Pappammal. In view of the above settled position of law, issue No.6 is answered to the effect that the plaintiffs would be entitled to 1/10th share each in the suit property.
44. In view of the above declared position of law, the = share that devolved on Rangamani under Section 6 in his capacity as coparcener alone could be treated as ancestral property in his hands. If at all the plaintiffs are entitled to claim partition they would be entitled to claim only in respect of that = share which is held by him as coparcener. Therefore, the plaintiffs would be entitled to 1/5th share of the = share which is in the hands of the Rangamani as ancestral property. Therefore, the plaintiffs would be entitiled to 1/5th of the = share ie., 1/10th share each in the suit property.
45. Therefore, I conclude that the plaintiffs will be entitled to only 1/10th share each in the suit property. Issue No.6 is answered to the effect that the plaintiffs would be entitled to 1/10th share each in the suit property.
Issue No.7:
46. The plaintiffs have sought for a decree for permanent injunction restraining the defendants from altering the physical features of the suit property till it is divided by metes and bounds. I do not see any necessity for such prayer in a suit for partition. Any alteration or modification or alienation made could be subject to the result of the suit. Hence, I do not see any necessity for granting the prayer for injunction. The plaintiffs will be entitled to mesne profits from the date of suit till date of delivery of possession. The plaintiffs will be at liberty to take appropriate proceedings under Order XX of Civil Procedure Code for determination of the mesne profits.
47. In fine, there will be a preliminary decree:-
1)declaring that the plaintiffs are entitled to 1/10th share each in the suit property.
2)plaintiffs would be entitled to mesne profits from the date of suit till the date of delivery of possession. The actual quantum of mesne profits is relegated to proceedings to be taken under Order XX of Civil Procedure Code.
In view of the relationship between the parties, I do not make any orders as to costs.
.12.2017 dsa List of the Witnesses examined on the side of the Plaintiffs:
PW1 - Mrs.Selvi List of Exhibits marked on the side of the Plaintiffs:
Sl.No. Exhibits Description of documents Date 1 Ex.P1 The certified copy of the Settlement Deed (Doc.No.846/1959). 07.04.1959 2 Ex.P2 The certified copy of the Settlement Deed (Doc.No.4273/1985). 09.12.1985 3 Ex.P3 The certified copy of the Settlement Deed (Doc.No.4285/1985). 11.12.1985 4 Ex.P4 The certified copy of the Settlement Deed (Doc.No.1709/2008). 07.03.2008 5 Ex.P5 The photocopy of the legal heirship certificate of Mr.M.Narayanan. 21.06.1989 6 Ex.P6 The certificate of encumbrance certificate in respect of the suit property. 03.03.2011 7 Ex.P7 The photocopy of Patta No.179/1980 with regard to the suit property. 15.08.1979 List of the Witnesses examined on the side of the Defendants:
DW1- Mr.R.Santhanam List of Exhibits marked on the side of the Defendants:
Sl.No. Exhibits Description of documents Date 1 Ex.D1 The original Settlement Deed executed by Periya Narayanan in favour of Chinna Narayanan. 07.04.1959 2 Ex.D2 The certified copy of the Settlement Deed executed by the second defendant in favor of the third defendant. 09.12.1985 3 Ex.D3 The original Settlement Deed executed by the second defendant in favour of the third defendant. 11.12.1985 4 Ex.D4 The original Settlement Deed executed by the second and third defendant in favour of the first defendant. 07.03.2008 5 Ex.D5 The original patta in favour of the first defendant. 09.06.2010 6 Ex.D6 (Series) The original property tax demand card in the name of the first defendant.
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7Ex.D7 (Series) The original Chennai Metropolitan Water Supply and Sewerage Board receipts.
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8Ex.D8 (Series) The original E.B. Consumption charges cards.
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21.12.2017 dsa To The Sub Assistant Registrar, Original Side, High Court, Madras.
R.SUBRAMANIAN,J.
dsa Pre-Delivery Judgment in C.S.No.185 of 2011 21.12.2017