Madras High Court
A.Ramasamy Pillai vs S.Thanammal(Died) on 6 August, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.NO.926 OF 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A No.926 of 2003
1. A.Ramasamy Pillai
2. A.Thampuran Thozha Pillai ... Appellants/Appellants/
Defendants 5 & 6
Vs.
1. S.Thanammal(Died)
2. S.Arumugaperumal Pillai
3. S.Ayyamperumal Pillai
(Respondents 2 and 3 are recorded as LRs of the
deceased 1st respondent. Memo is recorded.
Memo USR dated 12.09.2012)
4. A.Anachaperumal Pillai(Died)
5. Umayammal
6. C.Mathavan Pillai
7. Ayyamperumal Pillai ... Respondents/Respondents/
Plaintiffs 1 to 3 &
Defendants 1 to 4
8. Valli Parvathi Kumari
9. A.Sivakami
10.A.Meenalakshmi
11.A.Subbulakshmi
12.A.Ayyamperumal
(R-8 to R-12 are brought on record as LRs of the deceased
R-4 vide Order dated 03.12.2007 in C.M.P.(MD)No.3386 of 2006)
13.Sankaranarayana Pillai
(13th respondent is brought on record as LRs of the
deceased first respondent in M.P.(MD)No.2 of 2012
vide Order dated 25.08.2015) ... Respondents 8 to 13
https://www.mhc.tn.gov.in/judis
1/20
2 S.A.NO.926 OF 2003
Prayer: Second Appeal filed under Section 100 of C.P.C.,
against the judgment and decree dated 03.02.2003 made in
A.S.No.65 of 2002 on the file of the District Court,
Kanyakumari at Nagercoil confirming the judgment and
decree dated 01.04.2002 made in O.S.No.5 of 1992 on the file
of the I Additional Subordinate Court, Nagercoil.
For Appellants : Ms.Krishnaveni, Senior counsel.
for P.Thiyagarajan
For R-2, R-3 &
R-5 to R-13 : Mr.M.S.Balasubramaniya Iyer,
for Mr.K.Sreekumaran Nair.
R-1 to R-4 : Died.
***
JUDGMENT
Defendants 5 and 6 in O.S No.5 of 1992 on the file of the I Additional Subordinate Judge, Nagercoil are the appellants in this second appeal.
2.The said suit was for partition. According to the plaintiffs, the suit items are tarwad properties. The genealogy is as under:-
https://www.mhc.tn.gov.in/judis 2/20 3 S.A.NO.926 OF 2003 Sivakami Pillai-Ayyamperumal Pillai (Husband of Sivakami Pillai) Ananchaperumal Ramasamy Thampuram Thozha Umayamma Thanamma Pillai(D1) Pillai (D5) Pillai (D6) (D2) Arumugha Perumal Ayyam Perumal Pillai(P2) Pillai (P3) Mathavan Pillai Ayyamperumal Pillai (D3) (D4)
3.Sivakami Pillai was the Karnavathi, while Ayyamperumal Pillai was the Karnavan. They were blessed with three sons and two daughters. One of the daughters, namely, Dhanammal along with her two sons filed the suit claiming 5/16th share in 'A' schedule items and 1/5th share in 'B' schedule items. According to the plaintiffs, some of the 'A' schedule items were allotted in favour of Sivagami Pillai in a partition that took place in the year 1946 and that Ayyamperumal Pillai, the Karnavan who was managing the said items acquired the remaining items in 'A' schedule and 'B' schedule with the income generated therefrom. Sivagami Pillai passed away in the year 1971 while Ayyamperumal Pillai https://www.mhc.tn.gov.in/judis 3/20 4 S.A.NO.926 OF 2003 passed away in the year 1990. The appellants herein managed to obtain a Will from the father Ayyamperumal Pillai some time in the year 1985. According to the plaintiffs, the said Will dated 30.05.1985 is void. Since the defendants who are in possession of the suit items have not come forward to partition them, the plaintiffs were constrained to institute the said suit.
4.The elder son, namely, Ananchaperumal got separated from the family way back in the year 1965. Yet he staked claim on the suit properties in his written statement. The appellants herein also filed written statement controverting the plaint averments. According to them, 'A' schedule items 1 to 7 alone are the tarwad properties that stood in the name of Sivagami Pillai. 'A' schedule items 8 to 11 were not purchased out of the income generated by the tarwad properties and that they are not available for partition. The 11th item in 'A' schedule had already been sold. 'B' schedule items are the self-acquired properties of Ayyamperumal. He had executed a Will in the year 1963. Since the elder son Ananchaperumal had already sold certain properties and he also separated himself from the family, he https://www.mhc.tn.gov.in/judis 4/20 5 S.A.NO.926 OF 2003 was not entitled to any share in any of the suit items. Based on the divergent pleadings, the trial Court framed the necessary issues. The first plaintiff Thanammal examined herself as PW.1 and Ex.A1 to Ex.A5 were marked. The first defendant examined himself as DW.1. The fourth defendant examined himself as D.W.2 and two other witnesses were examined on the side of the defendants. Ex.B1 to Ex.B87 were marked. The learned trial Judge after consideration of the evidence on record held that Ex.B3 Will dated 30.05.1985 said to have been executed by Ayyamperumal Pillai was not proved. The learned trial Judge further held that Ayyamperumal Pillai had purchased the other suit items only from out of the tarwad properties of Sivagami Pillai. After so holding, preliminary decree was passed as prayed for. Questioning the same, defendants 5 and 6 filed A.S No.65 of 2002 before the I Additional Subordinate Judge, Nagercoil. The first appellate Court by the impugned judgment and decree dated 03.02.2003 confirmed the decision of the trial Court and dismissed the appeal. Challenging the same, this second appeal came to be filed.
https://www.mhc.tn.gov.in/judis 5/20 6 S.A.NO.926 OF 2003
5.The second appeal was admitted on 24.06.2003 on the following substantial questions of law:-
“(i)When the entire Marumakkathayam law stood repealed by the Joint Family Abolition Act 1975 was the learned District Judge right in applying the provisions of the Marumakkathayam Law for deciding the shares of the parties?
(ii)When the contesting defendants 5 and 6 examined one of the attestors to prove the due execution of the Will Ex.B8 and when there is no contra evidence on the side of the plaintiffs was the learned District Judge right in negativing the Will?
(iii)Were the courts below right in casting the onus upon defendants 5 and 6 to prove the properties of their father as self-acquired when they stood in the name of the father and when the plaintiffs failed to establish any nucleus of the joint family property?” The following additional substantial question of law was framed during the previous hearing :
“iv) Whether the expression “sons” occurring in Section 17(ii)(a) of the Hindu Succession Act would also include the sons who had already separated?” https://www.mhc.tn.gov.in/judis 6/20 7 S.A.NO.926 OF 2003
6.The learned Senior counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellants and hold that items 1 to 7 of 'A' schedule alone are amenable for partition and that items 8 to 11 of 'A' schedule are the absolute properties of defendants 5 and 6. She would also state that quite a few items were purchased by Ayyamperumal Pillai even prior to 1946. Some of the items were allotted in a family partition which had nothing to do with the suit tarwad. She also drew my attention to the recitals found in Ex.A1 partition dated 03.05.1965 to show that Sivagami Pillai had herself recognised that Ayyamperumal Pillai had contributed his labour and funds for purchasing the properties in question. She therefore submitted that the judgment and decree can be confirmed only in respect of the items 1 to 7 of 'A' schedule. She would also state that Ayyamperumal Pillai had executed a Will out of his own volition and in a sound mind. The said Will dated 30.05.1985 is a registered document. The appellants had examined the attestors of the Will. The Courts below have casually brushed aside the evidence adduced by the appellants https://www.mhc.tn.gov.in/judis 7/20 8 S.A.NO.926 OF 2003 herein. It is true that Ayyamperumal Pillai had disinherited one of the daughters. The disinheritance of a legal heir need not always be a suspicious circumstance. If the same can be explained, the Court is obliged to give effect to the intention of the testator. In the case on hand, the disinherited legal heir had walked out of her marriage and was living with another person. This conduct had deeply offended Ayyamperumal's sentiments and that is why he did not bequeath anything in favour of that particular daughter. But as regards the other daughter, a property was allotted five years later vide Ex.B69 dated 19.09.1990. The respondents had questioned the disposing mental state of Ayyamperumal. The allegation was that he turned blind and that he could not have executed Ex.B8. But this stands falsified by several subsequent developments. It has been shown that Ayyamperumal Pillai filed a suit in the year 1986 and examined himself in the year 1988. That is evident from Ex.B.67 and Ex.B.68. He executed a partition document on 19.09.1990 (Ex.B.69). From these circumstances, one can safely come to the conclusion that the execution of the Will dated 30.05.1985 was a voluntary and deliberate act on the part of Ayyamperumal. The Courts below https://www.mhc.tn.gov.in/judis 8/20 9 S.A.NO.926 OF 2003 by disregarding such circumstances have failed to give effect to the intention of Ayyamperumal Pillai. The learned Senior counsel therefore submitted that the impugned judgment and decree deserve to be modified and the substantial questions of law have to be answered accordingly.
7.Per contra, the learned counsel appearing for the respondents reminded me that I am exercising jurisdiction under Section 100 of C.P.C. When the Courts below have concurrently rendered a finding that Ex.B.38 Will had not been proved, it is not open to this Court to interfere with such a factual finding. He would also state that there is no convincing evidence available on record to show that Ayyamperumal was possessed of any independent source of income. There is no dispute that Sivagami Pillai was allotted some properties in a partition in the year 1946 and that by selling the same, the suit items 1 to 7 of 'A' schedule were purchased. The Karnavan was managing income generating properties. Therefore, the purchases made by Ayyamperumal Pillai will also bear the character of tarwad property. The learned counsel drew my attention to the decision of the https://www.mhc.tn.gov.in/judis 9/20 10 S.A.NO.926 OF 2003 Hon'ble Supreme Court reported in AIR 1966 SC 411 (Achuthan Nair V. Chinnamu Amma and others). The Hon'ble Supreme Court in the said decision had held that it is settled law that if a property is acquired in the name of Karnavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence. The contention of the learned counsel appearing for the respondents is that this presumption has not been rebutted in the instant case. He would also state that the first defendant is also entitled to a share in the properties notwithstanding the fact that he had left the tarwad in the year 1965 as per Section 17 of the Hindu Succession Act, 1956. He finally submitted that the impugned judgments and decrees passed by the Courts below do not call for any interference.
8.I carefully considered the rival contentions and went through the evidence on record. Let me first deal with the entitlement of the first defendant Ananchaperumal to any share in the tarwad properties. Section 15 of the Hindu Succession Act, 1956 is as follows :
https://www.mhc.tn.gov.in/judis 10/20 11 S.A.NO.926 OF 2003 “15.General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1),—
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
Section 17 of the Hindu Succession Act, 1956 is as follows :
https://www.mhc.tn.gov.in/judis 11/20 12 S.A.NO.926 OF 2003 “17.Special provisions respecting persons governed by marumakkattayam and aliyasantana laws.—The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if-
(i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:— “(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates.”;
(ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:— “(a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the mother;
(b)secondly, upon the father and the husband;
(c)thirdly, upon the heirs of the mother;
(d)fourthly, upon the heirs of the father; and
(e)lastly, upon the heirs of the husband.”;
(iii)clause (a) of sub-section (2) of section 15 had been omitted;
(iv)section 23 had been omitted."
The first substantial question of law raised by the appellants is that the courts below erred in applying Marmakathayam Law when Section 17 of the Hindu Succession Act had been repealed by the Kerala Joint Hindu Family System (Abolition) https://www.mhc.tn.gov.in/judis 12/20 13 S.A.NO.926 OF 2003 Act, 1975. The legal effect of Act 30 of 1976 need not detain us. This is because admittedly, the said statute was enacted by the Kerala Legislature. As per Article 245 of the Constitution of India, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Article 245 (2) states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra- territorial operation. Article 245(2) is confined only to Parliamentary legislation. In other words, laws made by a State Legislature cannot have extra-territorial operation. Hence, Act 30 of 1976 enacted by the Kerala Legislature cannot have any relevance to decide the issue on hand because the cause of action arose entirely within the State of Tamil Nadu. I therefore answer the first substantial question of law against the appellants.
9.The contention of the learned counsel for the respondents is that since the expression “sons” occurring in Section 17 of the Act is not qualified by any prefix or adjective, it must be given the natural and literal meaning. So https://www.mhc.tn.gov.in/judis 13/20 14 S.A.NO.926 OF 2003 construed, the first defendant Ananchaperumal even though got divided and separated would still be entitled to a share in the tarwad properties along with his siblings. I am not able to agree. It is true that the provision employs the expression “sons” without any qualification or description. The question is whether it would mean and include all the sons? The Hon'ble Full Bench of the Madras High Court in the decision reported in (1984) 56 STC 237 (FB) (State of Tamil Nadu vs. Manakchand), held that as a general rule, the validity of a statutory construction stands proved by the reasonable results that follow its application and that the invalidity of a statutory construction is proved by the monstrous results of its application. Let us assume that a sum of Rs.100/- was originally available. One of the five sons got himself separated and walked out taking Rs.20/- allotted to him. After the demise of the Karnavathi, the divided son once again staked his claim. If the contention of the learned counsel for the respondents is accepted, the divided son would take Rs.36/- in all while the remaining four siblings would take only Rs.16/- each. Such a result would clearly be monstrous and violative of the equality principle. Courts cannot go by the principle of https://www.mhc.tn.gov.in/judis 14/20 15 S.A.NO.926 OF 2003 literal construction every time. Statutory provisions have to be purposively construed having due regard to the statutory scheme and the overarching principle of reasonableness. The expression “sons” occurring in Section 17 (ii) (a) of the Hindu Succession Act, 1956, in the very nature of things, cannot include a divided son. Since Anancha perumal got himself separated in the year 1965 and was also allotted properties under Ex.A1 dated 03.05.1965, he would not be entitled to share in the suit tarwad properties. Anancha perumal on his own admission did not even attend his father's funeral. The fourth substantial question of law is answered accordingly.
10.Regarding items 1 to 7 of 'A' schedule, there is no dispute. They are admittedly tarwad properties and the plaintiff as well as defendants 2, 5 and 6 will be entitled to 1/4th share each. Regarding items 8 to 11, they stand in the name of the appellants. They were purchased on 02.06.1978. Sivagami Pillai had passed away way back in the year 1971. While the acquisition of the properties by Karnavan may bear the character of tarwad property, the said presumption will not apply in the case of acquisition of properties in the name https://www.mhc.tn.gov.in/judis 15/20 16 S.A.NO.926 OF 2003 of anandrawan. This was categorically laid down in the decision reported in AIR 1966 SC 411 (Achuthan Nair V. Chinnamu Amma and others). In the case on hand, there is neither sufficient pleading nor evidence to show that 'A' schedule items 8 to 11 were acquired out of the tarwad funds. Therefore, I hold that the items 8 to 11 are very much the absolute properties of the appellants and that they are not available for partition. Regarding 'B' schedule, it has been assumed by the Court below that they were acquired out of the tarwad funds. It is not so. It has been convincingly shown that items 1 and 8 were purchased by Ayyamperumal Pillai even prior to 1946. The contention is that out of the properties allotted to Sivagami Pillai in the partition that took place in 1946, the other suit items were purchased. It is not the case of the plaintiffs that even before 1946, some tarwad nucleus or funds were available and out of those funds, Ayyamperumal had purchased items 1 and 8 of 'B' schedule. Items 2, 3, 5 and 12 of 'B' schedule were allotted to Ayyamperumal in a family partition and had nothing to do with the suit tarwad. It is noted that items 4,6,7,9,10 and 11 were purchased by Ayyamperumal subsequently. When https://www.mhc.tn.gov.in/judis 16/20 17 S.A.NO.926 OF 2003 Ayyamperumal could purchase items 1 and 8 of 'B' schedule prior to 1946, that clearly shows that he was very much capable of earning and making purchases on his own. Except item no.11, all the remaining items of 'B' schedule were dealt with by Ayyamperumal in his bequest made in the year 1963 (Ex.A.2). All the parties herein have admitted that Ayyamperumal executed Ex.A.2 Will dated 05.12.1963. In the said Will, he had made bequests in favour of the plaintiffs and defendants 2, 5 and 6. If really Ayyamperumal was not competent to make bequest in respect of the items 4,6,7,9,10,11 and 13 etc., the same would have definitely been opposed by the parties during the lifetime of Ayyamperumal itself. In fact in the partition deed dated 03.05.1965, Sivagami Pillai also acknowledged that Ayyamperumal was engaged in generating funds and making purchases. Therefore, the Courts below erred in affixing the tarwad character on all the 'B' schedule items. 'B' schedule items 1 to 10 covered by Ex.A. 2 dated 05.12.1963 will devolve as per the terms of the said Will. As regards item 11 of 'B' schedule, it is the property of Ayyamperumal and not the tarwad property. Therefore, the first defendant will also be entitled to 1/5th share in the suit https://www.mhc.tn.gov.in/judis 17/20 18 S.A.NO.926 OF 2003 said item. The other substantial questions of law are answered accordingly. The impugned judgment and decree are modified and this second appeal is disposed of as follows:-
i) The plaintiff and defendants 2,5 and 6 will be entitled to 1/4th share each in items 1 to 7 of 'A' schedule.
ii) The suit is dismissed as regards items 8 to 11 of 'A' schedule.
iii) Items 1 to 10 of 'B' schedule will devolve as per Ex.A.2 dated 05.12.1963.
iv) Item 11 of 'B' schedule will devolve in equal shares on the plaintiffs and defendants 1,2,5 and 6. No costs.
06.08.2021
Index : Yes / No
Internet : Yes/ No
PMU/skm
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
1. The District Judge, Kanyakumari at Nagercoil.
2. The I Additional Subordinate Judge, Nagercoil.
3. The Record Keeper, V.R.Section, https://www.mhc.tn.gov.in/judis 18/20 19 S.A.NO.926 OF 2003 Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN, J.
https://www.mhc.tn.gov.in/judis 19/20 20 S.A.NO.926 OF 2003 PMU/skm S.A.No.926 of 2003 06.08.2021 https://www.mhc.tn.gov.in/judis 20/20