Madras High Court
Chellam vs Karuppayee on 5 January, 2021
S.A.(MD)No.711 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.711 of 2020
and
C.M.P.(MD)No.7296 of 2020
Chellam : Appellant
Vs.
Lakshmi (Died)
Veerayee (Died)
1.Karuppayee
2.Valli
3.Sigappi
4.Arumugam
5.Chinnakannu
6.Ravikumar
7.Shanmugavalli
8.Valli
Nachammai (Died)
9.Pooranam
10.Selvam @ Veeraiah
11.M.Mariammbalam
12.M.Muthaiah
13.M.Senthilkumar
14.D.Lakshmi : Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to call for the records in pursuant to the judgment and decree, dated 31.01.2020
passed in A.S.No.115 of 2001 by the learned Principal District Judge,
Sivagangai, modified the judgment and decree, dated 30.07.2001 passed in
O.S.No.170 of 1998 by the learned Subordinate Judge, Sivagangai and to set
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S.A.(MD)No.711 of 2020
aside the same and to allow this appeal.
For Appellant :Mr.M.Karthikeya Venkatachalapathy
****
JUDGMENT
The first defendant in the suit in O.S.No.170 of 1998 on the file of the
Subordinate Court, Sivagangai, having suffered a decree for partition and
separate possession of the plaintiffs' 6/10 share in the suit property, has come up
with this second appeal.
2.The plaintiffs claim that they are entitled to a 6/10 share in the suit
properties contending that the suit properties belonged to one Nachiappan (Jr)
S/o.Nachiappan (Sr), as his self acquisition. The said Nachiappan (Jr) had two
wives. The said Nachiappan (Jr) married one Ramayee and through her, he had
four children, namely, defendants 1, 3, 4 and late Ramayee. The second
defendant is the daughter's daughter of Veerayee, who is the daughter of
Nachiappan (Jr.) and Ramayee. After the death of his first wife, namely,
Ramayee, Nachiappan (Jr) had married the first plaintiff and through her, he had
five children, namely plaintiffs 2 to 6.
3.The said Nachiappan had executed a Will on 04.03.1988 with reference
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S.A.(MD)No.711 of 2020
to a portion of his self acquired properties and he died about eight years prior to
the suit. “A” schedule properties set out in the Will were allotted to the first
defendant and the “B” schedule properties were allotted to the plaintiffs 2 to 6.
The parties had accepted the Will and the properties covered by the Will are in
enjoyment of the respective legatees. Contending that Nachiappan (Jr) died
intestate with the reference to the suit properties, the plaintiffs claim 6/10 share
in the suit properties.
4.The suit was resisted by the defendants contending that the suit
properties are the ancestral properties of Nachiappan (Jr). It was also contended
that the suit first item, which is a dwelling house, was allotted to the first
defendant and enjoyed by him absolutely and therefore, the suit first item is not
available for partition. It was the further contention that in view of Section 23
of the Hindu Succession Act, 1956, the plaintiffs, being female heirs, cannot
seek partition of suit first item, which is a dwelling house.
5.At trial, the 4th plaintiff was examined as PW-1 and three others were
examined as PW-2 to PW-4 and Ex-A1 to Ex-A45 were marked. The first
defendant was examined as DW-1 and Ex-B1 to Ex-B20 were marked.
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S.A.(MD)No.711 of 2020
6.The learned trial Judge, upon consideration of the evidence on record,
concluded that the suit properties are self acquired properties of Nachiappan
(Jr). The learned trial Judge, however, rejected the claim of the plaintiffs to a
share in the suit first item, in view of the Section 23 of the Hindu Succession
Act. Aggrieved, the plaintiffs preferred an appeal in A.S.No.115 of 2001 before
the Principal District Court, Sivagangai. The appeal was originally dismissed
by the appellate Court. Aggrieved by the said dismissal, the plaintiffs preferred
second appeal in S.A.(MD)No.21 of 2013. This Court, by its judgment, dated
05.12.2018 allowed the appeal by setting aside the judgment and decree of the
appellate Court and remitted the matter back to the appellate Court with a
specific direction to render a finding on the nature of properties, as to whether it
is ancestral or self acquired. Upon remand, the learned appellate Judge
concluded that the suit properties are self acquisitions of Nachiappan (Jr).
7.As regards the claim of the first defendant to the suit first item, the
learned appellate Judge concluded that once it is held that the suit properties
belonged to Nachiappan (Jr.) as his self acquisition, without there being a
recognised mode of transfer, the first defendant cannot claim absolute interest
over the suit first item. The claim based on Section 23 of the Hindu Succession
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S.A.(MD)No.711 of 2020
Act was also negatived in view of the deletion of the said provision from the
Statute. On the said findings, the learned appellate Judge allowed the appeal
and decreed the suit in respect of the suit properties. The attempt made by the
appellant to introduce certain documents, as additional evidence in the appeal,
was also rejected by the appellate Judge on the ground that the documents, that
are sought to be filed, are not relevant in deciding the issue, that was raised in
the appeal. Aggrieved by the judgment and decree of the first appellate Court,
the first defendant has come up with the second appeal.
8.I have heard Mr.M.Karthikeya Venkatachalapathy, learned Counsel for
the appellant.
9.The learned Counsel for the appellant would vehemently contend that
the lower appellate Court was not right in concluding that the allotment of suit
first item to him exclusively is not valid. He would also contend that the fact
that he accepted the Will executed by the father in the year 1986 would not
estop him from claiming exclusive title of suit first item. He would also
challenge the finding that the suit properties are self acquisitions of Nachiappan
(Jr).
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S.A.(MD)No.711 of 2020
10.The appellate Court, after remand, has reconsidered the entire
evidence on record and has come to the conclusion that the first defendant has
miserably failed to prove the character of the suit property as ancestral property.
The first appellate Court has discussed the law as well as the evidence and has
concluded that in the absence of any evidence to show that the suit property was
inherited by Nachiappan (Jr) from his father's father, the same cannot be treated
as ancestral property. The learned appellate Judge has also taken note of the
absence of evidence, as to the date of death of Nachiappan (Jr) to conclude that
the properties are ancestral or not. The date of death of Nachiappan (Jr),
assumes significance in the light of Hindu Succession Act, that was introduced
in 1956. Any property inherited through a male ancestor prior to 1956, can be
termed as ancestral property. After 1956, it should be shown as the property
inherited by the paternal ancestor or from a male ancestor, so as to characterise
the same as ancestral property.
11.Despite his best effort, the learned Counsel for the appellant is unable
to point out a legal or factual error in the conclusion of the appellate Court on
the character of the suit property. Once it is found that the character of the suit
property is self acquired, the oral transfer pleaded by the appellant cannot be
sustained. There cannot be an oral allotment or oral transfer of the property,
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S.A.(MD)No.711 of 2020
which is valued more than Rs.100/- to a person, who had no pre-existing
interest. Therefore, the appellate Court was right in negativing the claim
relating to the ownership over the suit first item. The defence raised by the
appellant under Section 23 of the Hindu Succession Act is also unavailable,
because of the change in law.
12.I, therefore, do not find any question of law, much less a substantial
question of law in this appeal. Accordingly, this second appeal is dismissed
without being admitted. No costs. Consequently, connected miscellaneous
petition is closed.
Index : Yes/No
Internet: Yes/No 05.01.2021
cmr
To
1.The Principal District Judge, Sivagangai.
2.The Subordinate Judge, Sivagangai.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.711 of 2020
R.SUBRAMANIAN, J.
cmr
Judgment made in
S.A.(MD)No.711 of 2020
05.01.2021
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