Madras High Court
Meiarasan vs Rolence on 14 December, 2021
AS.No.616/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AS.No.616/2019 and CMP.No.18686/2019
[Hybrid Mode]
Jayaseelan (Died)
1.Meiarasan
2.Reeta Catherin
3.Haney Heknabi
4.J.Rathinam .. Appellants/Defendants
Vs.
1.Rolence .. Respondent/Plaintiff
2.The Branch Manager,
Indian Overseas Bank,
Valathur Branch,
Vellore District. .. Respondent/5th defendant
Prayer:- Appeal Suit filed under Section 96 of C.P.C., to set aside the
Judgment and Decree, dated 23.01.2019 in O.S.No.35/2017 on the file of
the learned Additional District Judge (Fast Track Court), Vellore District.
For Appellants : M/s.Reshmi Christy
For R1 : Mr.R.Subramaniam
for Mr.T.Dharani
For R2 : M/s.K.R.Ananda Gomathy
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JUDGMENT
1) This appeal is directed against the judgment and decree dated
23.01.2019 in O.S.No.35/2017 on the file of the learned
Additional District Judge, Fast Track Court, Vellore District in
O.S.No.35/2017.
2) The 1st respondent/plaintiff filed the Suit in O.S.No.40/2010. The
defendant in the Suit in O.S.No.35/2017 is the appellant in the
above appeal. Originally, the 1st respondent as plaintiff, filed the
Suit in O.S.No.40/2010 before the Sub Court, Vellore, for
partition and separate possession of his 1/5th share in all the Suit
properties. 1st defendant is the father of plaintiff and defendants 2
to 4. 6th defendant is the wife of 1st defendant.
3) The Suit property consists of five items.
4) The case of 1st respondent/plaintiff in the plaint is as follows:
5) Item No.1 of the Suit property was the ancestral property of the 1 st
defendant who got the same in a family partition among the 1 st
defendant and his brothers through a registered Partition Deed
dated 27.03.1992. The 1st defendant derived substantial income
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from Item No.1 of Suit schedule to meet out not only the family
expenses but also to purchase other properties.
6) The plaintiff was also working as a teacher and gave his income to
the family. From the income derived from Item No.1 of the suit
schedule, and from the income of plaintiff, the 1st defendant
purchased Item No.2 of Suit schedule for a valid consideration.
The 3rd Item of Suit schedule was also purchased in the name of 1 st
defendant as per the Sale Deed dated 13.04.2006. The 4th Item of
Suit schedule was purchased in the name of 2nd defendant by a
registered Sale Deed dated 11.02.2009.
7) The 5th Item of Suit schedule was purchased in the name of 4th
defendant as per the Sale Deed dated 11.05.2009 All the Suit
properties are therefore Joint Family Properties and they have also
been treated as Joint Family Properties by all the members of joint
family. The 1st defendant had no independent except the income
derived from the Joint Family Properties. Though some of the
properties were purchased in the name of the 1st defendant, or
other members they should be treated as Joint Family Properties.
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8) Before extracting the plea in the Written Statement, it is necessary
to know the relationship between the parties for proper
understanding of the pleadings. The 1st respondent in this appeal is
the plaintiff. The 1st defendant is the son of one Masilamani. The
1st defendant is the father of plaintiff as well as defendants 2 to 4.
While, 2nd defendant is the son, defendants 3 and 4 are the
daughters. The 2nd respondent bank was impleaded as 5th
defendant as the 6th schedule of property are the deposits that are
lying with the 2nd respondent. The 1st defendant died during the
pendency of the Suit. After the death of the 1st defendant, the wife
of 1st defendant was impleaded as 6th defendant in the Suit.
9) From the above, it is seen that the 1st respondent/plaintiff has
claimed 1/5th share by treating all the Suit properties are Joint
Family Properties. The Suit was contested by the 1st defendant
namely the father of 1st respondent denying the averments in the
Plaint by stating that the Suit properties were purchased by him
out of his earnings.
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10) It is also stated that the 4th defendant purchased Item No.5 of the
Suit property and that Item No.6 of the Suit property namely the
deposists are the investment by the 4th defendant in the name of 1st
defendant. Similarly, it is contended by the 1st defendant that Item
Nos.2 and 3 of the Suit properties were purchased by the 1st
defendant from and out of the income of the 4th defendant. It is
also stated by the 1st defendant that Item Nos.2 and 3 of the Suit
properties are settled in favour of the 4th defendant as they were
purchased from the amount that was sent to the 1st defendant by
the 4th defendant.
11) The 2nd defendant is another son of 1st defendant, and he filed a
separate Written Statement almost in line with the Written
Statement filed by the 1st defendant. In the Written Statement filed
by the defendants 3 and 4, it is stated that the Suit properties
except Item No.1 are not the properties of the 1 st defendant as they
were purchased out of the money sent by the 4th defendant. The 1st
defendant executed a Settlement Deed in favour of his daughters
in respect of Item Nos.2 and 3.
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12) Therefore, it was stated that the Sale Deed was obtained in the
name of 4th defendant regarding in respect of Item No.5. Hence,
the properties is the property of 4th defendant. An additional,
Written Statement was filed raising a specific plea that parties are
Christians and therefore the Suit for partition under Hindu
Succession Act, 1956 is not maintainable.
13) The Trial Court framed necessary issues. The plaintiff examined
himself as P.W.1 and another Aranganathan as P.W.2. The 2nd
defendant was examined as D.W.1. One more witness by name,
Srinivasan was examined on behalf of the defendants. The
plaintiff filed Exhibit A1 to A8 and the defendants filed Exhibit
B1 to B23. The Trial Court after framing necessary issues held
that the plaintiff is entitled to 6/25th share in all the Suit schedule
property except Item No.5, after holding that the parties are
governed by the Hindu Succession Act, 1956 and that the Suit
properties except Item No.5 are the Joint Family Properties of the
1st defendant and his children.
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14) Aggrieved by the same, the defendants 2 to 5 have preferred the
above appeal. Learned counsel appearing for the appellants
submitted that the Hindu Succession Act, 1956 is not applicable to
a Christian family that embrassed Christianity three generations
before. Though it is admitted that the 1st respondent is entitled to
get a share in the Item No.1 which is admittedly the property of 1 st
defendant, it is stated that the 1st respondent is not entitled to a
share in Item Nos.2 to 6.
15) The Trial Court on the basis of the recitals in the Partition Deed
dated 27.04.1992 held that the parties are Hindus. Though, the
Trial Court accepted the Partition Deed Ex.B2 dated 28.03.1944
found that the recitals are contrary to facts. Then the Trial Court
considered the issue whether the plaintiff who is held to be a
Christian, is disqualified to inherent the property under Section 26
of the Hindu Succession Act, 1956. Relying upon a few judgments
of this Court and the Hon'ble Supreme Court, the Trial Court
found that the plaintiff is not disqualified because of his
conversion on the ground that Section 26 of the Hindu Succession
Act, 1956 does not disqualify the son who ceases to be a Hindu by
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conversion to any other religion.
16) Even though, the Trail Court held that the plaintiff is not
disqualified to inherit under Section 26 of the Hindu Succession
Act, 1956, the Trial Court did not consider the validity of the
Settlement Deed. The father died during the pendency of the Suit
itself. Hence, the issue arises whether the Settlement Deed is valid
at least with reference to the share of 1st defendant. However, the
Trial Court did not go into the issue regarding the validity of the
Settlement Deed. However, the Trial Court held that all
acquisitions by father was out of the Joint Family and therefore,
they are liable for partition.
17) The Trial Court therefore, granted a decree for partition in respect
of 6/25th share of plaintiff in all the Suit properties except Item
No.5 which was purchased in the name of 4th defendant in the
Suit. Therefore, decree was granted in respect of Item Nos.1 to 4
and 6. Aggrieved by the judgment decree of the Lower Court the
above Appeal Suit is preferred by the defendants 2 to 4 and 6.
18) Learned Counsel appearing for the appellant submitted that the
Hindu Succession Act, 1956 cannot be applied to a Christian
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family who had long before converted to Christianity. Learned
counsel submitted that the plaintiff himself has admitted in the
chief examination as well as for the cross-examination about the
religion of the family at least for three generations and that the
Trial Court has failed to appreciate the evidence of plaintiff
himself.
19) Learned counsel appearing for the appellants relied upon the
document under Ex.B2 namely, the Partition Deed which was
between the plaintiff 's grandfather and the brothers of his grand
father wherein the parties described themselves as parties
belonging to Christianity. Learned counsel then refers to the
findings of the Trial Court and submitted that the burden was
shifted to the defendants erroneously by the Lower Court, even
though, the plaintiff himself has admitted the position that the
parties namely the plaintiff and his father belong to Christianity
right from their birth.
20) Learned counsel submitted that the Item Nos.4 and 5 were
purchased by the 2nd defendant and 4th defendant respectively in
their name and that the properties that was standing in the name of
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other legal heirs cannot be the subject matter of partition. With
regard to Item Nos.2 and 3, learned counsel relied upon the
Settlement Deed executed by her father in favour of daughters. It
is stated that the properties Item Nos.2 and 3 were purchased out
of the money sent by the 4th defendant to her father and that
therefore, the father took the moral responsibility and transfered
the property in the name of 4th defendant by way of the Settlement
Deeds namely, for Exs.B22 and B23 dated 08.05.2009.
21) Learned counsel appearing for the respondent however supported
the judgment and findings of the Trial Court relying upon the
document Ex.A1 where the father of 1st defendant has described
himself as a Hindu. Learned counsel then submitted that, the Trial
Court has rightly interpreted Section 26 of the Hindu Succession
Act, 1956 and held that the plaintiff cannot be disqualified to
inherit the property merely because he has converted himself to
Christianity.
22) Learned counsel submitted that the Suit Item No.1 was allotted to
the father of plaintiff under the Partition Deed dated 23.07.1992
and therefore, submitted that the 1st defendant got the property
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under Ex.A1 as the Kartha of family. Since the property stands in
the name of 1st defendant was purchased out of the Joint Family
income. It is submitted that the Trial Court has rightly held that
the properties Item Nos.2 to 4 and 4 to 6 belonged to the Joint
Family. The learned counsel admit that the Item Nos. 4 and 5 are
standing in the name of 2nd and 4th defendants respectively. It is
argued by the learned counsel that the Item No.2 was purchased in
the name of 2nd defendant being the elder member of the family. It
is submitted that the property purchased in the name of 2nd
defendant has to be treated as the Joint Family Properties
especially when the 2nd defendant has not submitted any document
to show his separate earnings or source of income to purchase the
Item No.4.
23) Having regard to the pleadings and submission of the learned
counsel appearing on either sides the following points arise for
consideration.
(a) Whether the parties to the Suit are Christians
not to be governed by the provisions of the Hindu
Succession Act, 1956?
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(b)What are the properties that are available for
partition?
(c)Whether the Settlement Deed under Exs.B22
and B23 are valid and binding on plaintiff?
(d)Whether Item No.4 exclusively belongs to 2nd
defendant? Whether plaintiff is entitled to seek
partition of Item No.6 which are Bank deposits.
24) Regarding religion to which the parties belong to, the Trial Court
relied upon the document Ex.A1. However, the learned counsel
appearing for the appellant relied upon the document under Ex.B2.
The recitals in Ex.A1 wherein the parties have described
themselves read as follows:
“////ehk; midtUk; nru;e;J vGjp itj;Jf;bfhz;l
ghfg;gpuptpid gj;jpuk; vd;dbtd;why;. ehk; vy;nyhUk;
,e;J tFg;ig nru;e;jtu;fs; Mnthk;/ ekf;F gpJuh$pjkha;
ghj;jpag;gl;l brhj;ij ehk; ,Jehs;tiu mDgtpj;J
te;njhk; ekf;Fs; rz;ilfs; rr;rut[fs; Vw;gLtjhFk;///////”
25) In Ex.B2, the Partition Deed wherein the sons of Masilamani,
grandfather of plaintiff and his brothers are parties to the Partition
Deed. The parties have described their religious status in
following lines.
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“////Foahj;jk; jhYf;fh Fspjpif fpuhk
Mjpjpuhtpl nrupapypUf;Fk; Mjpjpuhtpl fpU!;Jt
Fyk; gaph; $Ptdk;/////”
26) In the Chief Examination the plaintiff himself has deposed as
follows:
“///gpwe;jj;jpy; ,Ue;J fpwp!;jJ
; t Mjpjpuhtplh;
tFg;ig rhh;e;jth;/ Vd; kidtp g;hpah/ Vd; Kjy;
kidtp bgah; bjd;wy;/ mtUk; jpUkzj;jpw;F
Kd;g[ fpwp!;j;Jt kjj;jpw;F khwpa[s;shh;/
1k;gpujpthjp vd; je;ij/ MtUila je;ij bgah;
khrpyhkzp// Vd; jhj;jh khrpyhkzp
Muk;gj;jpnyna fpwp!;j;Jt kjk; vd;why; mJ
gw;wp vdf;F bjhpahJ/ ehd; gpwpe;jj;jpypUe;J
Vd; je;ij fpwp!;j;Jt kjj;jpy; jhd; ,Ue;J
tUfpwhh;/ Fspjpif vd;w fpuhkj;jpy; cs;s
bjd;dpe;jpa jpUrigapy; cs;s rh;r;Rf;F nghtJ
tHf;fk;/”
“///jhth jhf;fy; bra;ak[ ; fhyj;jpy; ehDk;
gpujpthjpa[k; fpwp!;Jt kjj;ij rhh;e;jth; jhd;/
,e;J Kiwg;go brhj;ij guhkhpj;J tUtjhy;
,e;J Kiwg;go ghfk; nffhp ,e;j tHf;F
jhf;fy; bra;Js;nsd;/ ehDk; gpuhpthjpfs;
fpwp!;j;Jt kjj;ij rhh;e;jth; vd;gjdhy; ,e;J
Kiwg;go ghfk; nfhhu KoahJ vd;why;
rhpapy;iy/”
27) The plaintiff during cross examination has stated as follows:
“///vd; jfg;gdhh; rh;rr; py; CHpak; bra;J jhd;
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rk;ghjpj;jhh; vd;why; kWf;fpnwd;/ mth; gpwg;ghy;
fpWj;Jth;/ ehd; ,t;tHf;fpy; gpujpthjpfs;
vy;yhk; fpWj;Jth;fs; jhd; vd;why; rhpjhd;/
ehd; jhf;fy; bra;j jhth fpWj;Jth; vd;gjhy;
me;j kjj;jpw;Fs; Vw;gLk; kj rl;lj;jpd; fPH;
jhd; ghfg;gphptpid nghlg;gLk; vd;why; mij
gw;wp vdf;F bjhpahJ/”
28) From the evidence, the plaintiff himself admitted that the plaintiff
and his father are Christians from their birth and that his
grandfather Masilamani was also lived as a Christian. Further, the
document under Ex.B2 along with the Deposition of P.W.1,
during chief and cross examination would amply show that parties
to the Suit are all Christians by birth. When the grandfather
Masilamani is also a Christian, there is no scope for applying the
Hindu Succession Act, 1956.
29) Learned counsel appearing for the respondent relied upon a few
judgments of this Court as well as the Bombay High Court for
proposition that Section 26 of the Hindu Succession Act, 1956
deals with disqualification of the decendants of the person who
converted himself to the other religion. He relied upon the
judgment reported in 2018 (2 )Mh.L.J. in the case of Balchand
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Jairamdas Lalwant Vs. Nazneen Khalid Qureshi wherein the
High Court of Bombay has considered the scope of Section 26 of
the Hindu Succession Act, 1956.
30) It was held that a Hindu converted into other religion is not
disqualifed to claim property under Section 26 of the Hindu
Succession Act, 1956. The Court went to the extent of holding
that the Fundamental Right guaranteed to profess any religion will
be infringed if the provisions of Hindu Succession Act, 1956 are
interpreted to disqualify inheritance under
the Hindu Succession Act, 1956.
31) Similarly, a few more judgments were also relied upon by the
learned counsel appearing for the respondent under Section 26 of
the Hindu Succession Act, 1956.
32) The interpretation of Section 26 of Hindu Succession Act as seen
from the judgments is not an issue in this case. Section does not
disqualify the son who has converted himself to another religion.
The same view was also expressed by this Court in a judgment in
the case of E.Ramesh and another Vs. P.Rajini and 2 others
reported in 2002 (1) CTC 223. The said judgment of the Division
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Bench of this Court is also followed by this court in the case of
K.Sivanandam Son of Kuppusamy Vs. Maragathammal Wife of
Kanniappan reported in 2012 (3) LW 674.
33) However, in the present case, Section 26 of the Hindu Succession
Act, 1956 may not have a role to play. Here the argument of the
learned counsel appearing for the appellant that the grand father of
plaintiff by name, Masilamani and father of plaintiff are Hindus by
birth. Then there is no scope for applying Hindu Succession Act,
1956.
34) The question is not about disqualification but right to inherit the
property under Hindu Succession Act which is applicable to
Hindus. If the Personal Law applicable to the parties is Indian
Succession Act they cannot be governed by the provisions of the
Hindu Succession Act, 1956. Therefore, it is not necessary for this
Court to consider the scope of Section 26 of the Hindu Succession
Act, 1956. As held earlier, the parties are not governed by Hindu
Succession Act, 1956.
35) Then the next question the properties that are available for
partition?
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36) It is admitted that Suit Item No.1 is the property allotted to the
father. Since, the father died intestate the appellants have no
grievance for decreeing the Suit for partition in respect of Item
No.1. With regard to Item Nos.2 and 3, the father had executed
two Settlement Deeds under Ex.B22 dated 08.05.2009 and Ex.B23
dated 08.05.2009. The Settlement Deeds were executed by the
father/1st defendant in favour of 3rd and 4th defendant.
37) It is the specific case of 4th defendant that she was employed in
Ireland as a Staff Nurse and that she was sending substantial
amounts to the father to invest the money by purchasing properties
in her name. Though the father purchased the properties in his
name later, it is stated that the father executed the Settlement
Deeds under Ex.B22 and B23 dated 08.05.2009 in favour of 3rd
and 4th defendant. When the parties are not governed by Hindu
Law, the Joint Family or coparcereny concept as it is understood
under Hindu law applicable to Hindus are alien to them.
38) Therefore the 1st defendant has a right to deal with those
properties that were purchased by him out of his personal income
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or by the income derived from other properties inherited from his
father. Therefore, this Court is unable to ignore the Settlement
Deed executed by father and the plaintiff is not entitled to seek
partition in respect of Item Nos.2 and 3.
39) As regards Item No.4, it is admitted by the learned counsel for the
respondent that the said item was purchased in the name of 2nd
defendant who is the brother of plaintiff. Thought, it is stated that
the 2nd defendant is a money lender and the property was
purchased out of the income derived from the Joint Family
Properties, this Court cannot countenance such argument in view
of the findings that the parties are Christians and the Hindu
Succession Act, 1956. is not applicable. Hence, the properties
purchased by defendants 2 and 4 cannot be the subject matter of
partition as the plaintiff has no right as co owner.
40) As regards bank deposits, the plaintiff has produced a few fixed
deposit receipts. Stating that the fixed deposits are in the name of
father, the plaintiff filed the Suit for partition. However, it is
contended by the 4th defendant that fixed deposits are from the
accounts of 4th defendant. Though the 5th defendant produced
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some records to show that the 4th defendant has transferred the
money to the credit of her father, the deposit details shows that the
Suit schedule does not tally with the particulars given by the 4th
defendant.
41) However, this Court is unable to hold that the bank deposits as
described in the plaint are all available for partition. However, the
plaintiff/respondent is entitled to 1/5th share in all the amount
lying to the credit of the father/1st defendant. Therefore, the
plaintiff is entitled to partition of 1/5th share only in respect of the
Item No.1 and in respect of any deposit that is lying to the credit
of father, 1st defendant. Since, this Court has held that the Suit
schedule Item Nos.2,3,4 and 5 are not available for partition the
Suit is dismissed as regards Item Nos.2,3,4 and 5. As regards Item
No.6 the plaintiff is entitled 1/5th share only in respect of fixed
deposits stands in the name of the father/1st defendant.
42) Accordingly, the appeal is Partly Allowed and the judgment and
decree of dated 23.01.2019 in O.S.No.35/2017 on the file of the
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learned Additional District Judge (FTC), Vellore District is
modified by declaring the 1/5th share of the plaintiff only in
respect of Item No.1 of Suit schedule. As regards, Item Nos.2,3,4
and 5 the Suit is dismissed. However, the plaintiff/respondent is
also entitled to an equal share in respect of amounts lying in fixed
deposits which are standing in the name of 1st defendant.
Therefore, the Appeal Suit is Partly Allowed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
14.12.2021
cda
Internet : Yes
S.S.SUNDAR, J.,
cda
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To
The Additional District Judge,
(Fast Track Court), Vellore District.
AS.No.616/2019
14.12.2021
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