Madras High Court
A.Ramasamy Pillai vs S.Thanammal(Died) on 6 August, 2021
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
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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:-
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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
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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
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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.
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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?”
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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
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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
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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
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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 :
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“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 :
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“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)
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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
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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
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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
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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
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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
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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,
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19 S.A.NO.926 OF 2003
Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN, J.
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PMU/skm
S.A.No.926 of 2003
06.08.2021
https://www.mhc.tn.gov.in/judis
