Madras High Court
Kalaiselvi vs J.Swathy ... 1St on 19 September, 2024
C.R.P. No. 459 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
C.R.P. No. 459 of 2024
and
C.M.P. No. 2197 of 2024
Kalaiselvi ... Petitioner / Petitioner /
2nd defendant
Vs.
1. J.Swathy ... 1st respondent / 1st respondent /
Plaintiff
2. Jayakumar ... 2nd respondent / 2nd respondent /
1st defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order and decreetal order dated 04.09.2023
made in I.A. No. 4 of 2023 in O.S. No. 313 of 2010 on the file of the II
Additional Subordinate Judge at Coimbatore.
For Petitioner : Mr. T.M.Naveen
For Respondent 1 : Mr. C.R.Prasannan (Caveator)
ORDER
https://www.mhc.tn.gov.in/judis 1/10 C.R.P. No. 459 of 2024 This civil revision petition arises against the order passed by the II Additional Subordinate Judge at Coimbatore in I.A. No. 4 of 2023 in O.S. No. 313 of 2010 dated 04.09.2023.
2. The facts necessary for the disposal of this revision are as follows:-
The plaintiff is the grand-daughter of one Chinnasamy. Chinnasamy obtained the suit scheduled mentioned property on 12.05.1970 by way of partition between himself and others. Even in the said document, the properties were described as joint family properties. Chinnasamy married one Sarojini and from the wedlock, two children were born. They were Inbavathy and Jayakumar. Jayakumar married one Radhamani and from that wedlock, the plaintiff was born on 26.05.1995.
3. Inbavathy married one Vivekanandan and from the wedlock, a boy name Deepak was born. Chinnasamy and Jayakumar, treating themselves as co-parceners, alienated the properties by way of sale deed and settlement deed in favour of Inbavathy. Inbavathy passed away on 27.01.2009. Her husband and son had predeceased her. On her death Chinnasamy's wife Sarojini treated herself as the sole legal heir of the deceased Inbavathy and alienated the property in favour of one Maragadam on 05.07.2011. Maragadam, in turn, alienated the property in favour of the civil revision petitioner on 26.12.2011. https://www.mhc.tn.gov.in/judis 2/10 C.R.P. No. 459 of 2024 Even prior to these alienations, the suit for partition had been presented even on 09.06.2010.
4. The plaintiff pleaded that, by virtue of being a co-parcener, she is entitled to a share in the joint family property that fell into the hands of Chinnasamy pursuant to the registered partition deed dated 12.05.1970. She would plead that her father Jayakumar had deserted her mother Radhamani and had taken to drinking and became an alcoholic. She would plead that her mother was not being maintained and as acts of alienation of the joint family properties against her interest had taken place, hence, after issuance of a notice, she presented the suit for partition.
5. Jayakumar, after having filed a written statement and an additional written statement, did not participate in the trial. He would plead that on 28.01.2001, the sale deed and settlement deed had been made by Chinnasamy in favour of Inbavathy and she had become the absolute owner of the property. In addition, he would state that on 29.03.2005, a settlement deed had been executed over his half share in the property in favour of Chinnasamy and, in turn, Chinnasamy had executed a settlement deed in favour of Inbavathy on 30.03.2005. He would state that the plea of the plaintiff does not deserve consideration and the suit is vexatious and sought for dismissal of the suit. https://www.mhc.tn.gov.in/judis 3/10 C.R.P. No. 459 of 2024
6. Pending the suit, an application was taken out by the plaintiff in I.A. No. 2 of 2021 to implead the lis pendens purchaser namely the civil revision petitioner. The said application was allowed by the learned Trial Judge and the plaint was amended impleading the civil revision petitioner as the 2nd defendant on 25.07.2022. Subsequently, the 2nd defendant took out an application for rejection of plaint in I.A. No. 4 of 2023. After receipt of a counter from the plaintiff, the learned Judge went on to dismiss the petition. Hence, this revision.
7. Heard Mr. T.M.Naveen for the civil revision petitioner and Mr. C.R.Prasannan for the 1st respondent.
8. Mr. T.M.Naveen would contend that the plaintiff had suppressed the sale deed that had been executed in favour of Inbavathy as well as the settlement deed that had been executed by her grandfather in favour of Chinnasamy, and the subsequent settlement deed by Chinnasamy in favour of Inbavathy and therefore, the suit must be dismissed for suppression of material facts. He would further plead that there is no cause of action for the suit as on the date of presentation of the plaint as the plaintiff had not pleaded that she has a share in the property. He would state that the suit has to be rejected for want of prayer of declaration that the sale deed and settlement deed executed https://www.mhc.tn.gov.in/judis 4/10 C.R.P. No. 459 of 2024 as aforesaid had not been challenged. Finally inviting my attention to Article 59 of the Limitation Act, 1963, he would plead that as the settlement deeds were executed in 2001 and 2005, the presentation of the plaint in the year 2010 is hopelessly barred by limitation.
9. Mr. C.R.Prasannan would contend that the civil revision petitioner is a purchaser pendente lite, and the pleas that have been raised by her have to be appropriately dealt with by the Court after evidence is recorded on the merits of the case. He would plead that the order of the learned Trial Judge is reasoned and does not require any interference.
10. I have carefully considered the submissions of both sides and I have gone through the records.
11. The narration of the aforesaid facts would go to show that the plaintiff, who at the time of presentation of the plaint was a minor, claims that she has a share in the joint family property which fell to Chinnasamy by virtue of the partition deed dated 12.05.1970. It is here that I have to point out the difference between Section 6 and Section 8 of the Hindu Succession Act, 1956. The claim of the plaintiff is based on her birth, by virtue of the amendment to Section 6 of the Hindu Succession Act, 1956. In case she had claimed that the property exclusively belonged to Chinnasamy then she could https://www.mhc.tn.gov.in/judis 5/10 C.R.P. No. 459 of 2024 not have maintained the suit, for her father is alive and only on the death of the father, she would get a share in the property.
12. In so far as the joint family property is concerned, a person is entitled to a share by virtue of birth and it is not dependent on the death of any person. By virtue of the death of a co-parcener, a share of another co-parcener could expand if not for notional partition in the family but the right that is vested in a co-parcener by birth cannot be taken away by any alienation that is made by another co-parcener in favour of a third party.
13. In so far as the plea of suppression of facts is concerned, I have to take note of the fact that the plaintiff herself was born only on 26.05.1995. When the plaint was presented, she was hardly 15 years old. I cannot impute the knowledge about the settlement deed and sale deed executed inter se between her father and her grandfather and her paternal aunt to non-suit the plaintiff on the ground of limitation. The petitioner having obtained the property by virtue of her birth in a joint family, is entitled to ignore the sale deed and settlement deed that might have been executed by other co-parceners in favour of third parties or in favour of any other person who is not a member of the co-parcenery. This is because a co-parcener can alienate only his share in the co-parcenery and will not have a right to alienate the share of another https://www.mhc.tn.gov.in/judis 6/10 C.R.P. No. 459 of 2024 co-parcener. If the latter, is not an eonominee party to the documents, can ignore the sale deed and settlement deed and approach the Court for the purpose of partition and seek for allocation of his or her share.
14. In so far as the argument of Mr. T.M.Naveen is concerned, I have to point out Article 59 of the Limitation Act, 1963, falls under Chapter IV of the Limitation Act. This deals with suits for declaration or cancellation of sale deeds or decrees that have been obtained. A person should seek for setting aside a sale deed or cancellation thereof only if he or she is a party to the said document. Being a third party to the document, as pointed out above, since the plaintiff gets a right by birth, she can ignore the document and present a suit for simple partition. Furthermore, the appropriate Article which applies for a person excluded from a joint family is Article 110 of the Limitation Act. The period of limitation is 12 years and it arises when the exclusion from the joint family comes to the knowledge of the plaintiff. Even if I were to assume that the minor was aware about the sale deed of the year 2001, there was time enough to file the suit till the year 2013. Fortunately for the plaintiff, the suit has been presented in 2010. Therefore, the suit has to be treated as well within time.
15. With respect to the plea that the plaintiff has to seek for relief of https://www.mhc.tn.gov.in/judis 7/10 C.R.P. No. 459 of 2024 declaration that the sale deeds and settlement deeds are null and void, I have to point out that the plaintiff not being an eonominee party to the document, she need not seek for setting aside the sale. Apart from that, since the plaintiff's father and grandfather treated themselves as the only co-parcerners for the property and executed the sale deed, the plaintiff can claim that she has a right over the property.
16. The cause of action for a partition suit arises every day. A perusal of the plaint shows that on 30.11.2009, the plaintiff made a demand for partition through her mother and since that demand was not satisfied, she came forth with a suit. For a partition suit, there should normally be a demand and a refusal. Both the ingredients are satisfied in the present case and since both sides would agree that the parent document of Chinnasamy is the partition deed dated 12.05.1970, I find that there exists a cause of action.
17. Being a minor, the Court cannot impute knowledge about the documents even if the mother is an attesting witness. Attestation of a document in all cases will not amount to knowledge about the contents of the documents. Since there are triable issues, I do not find any reason to interfere with the order of the learned Trial Judge in dismissing the application for https://www.mhc.tn.gov.in/judis 8/10 C.R.P. No. 459 of 2024 rejection of the plaint.
18. I should add here that the findings in this revision are only to state that the plaint need not be rejected on the grounds raised. It is always open to the defendant to raise these pleas on the merits of the case including non- impleading of Sarojini at the time of final disposal.
19. In the light of the above discussion, I do not find any merits in this revision. Hence, the civil revision petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
19.09.2024 Index : Yes/No Speaking order : Yes/No NCC : Yes/No pal To The II Additional Subordinate Judge at Coimbatore. https://www.mhc.tn.gov.in/judis 9/10 C.R.P. No. 459 of 2024 V.LAKSHMINARAYANAN, J., pal C.R.P. No. 459 of 2024 19.09.2024 https://www.mhc.tn.gov.in/judis 10/10