Madras High Court

Daname @ Danalatchoumy vs Andal on 8 July, 2021

                                                                                   AS.No.578 of 2013

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated : 08.07.2021

                                                       CORAM:

                                   THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                               AS.No.578 of 2013 and
                                                  MP.No.1 of 2013


                     1.Daname @ Danalatchoumy
                     2.Ravy
                     3.Murugan                                               ... Appellants


                                                          Vs.

                     1.Andal
                     2.Patchaiammalle @ Malliga
                     3.Selvi                                                ...Respondents

                     PRAYER:


                               Appeal Suit is filed under Section 96 of CPC against the
                     judgment and decree dated 11.09.2013 passed in OS.No.96 of 2010
                     on the file of the II Additional District Court, Pondicherry.


                                     For Appellants    : Mr.V.Raghavachari


                                     For Respondents
                                            For R1     : Mr.R.Thiagarajan
                                            R2 & 3     : No appearance




                     1/10

https://www.mhc.tn.gov.in/judis/
                                                                                        AS.No.578 of 2013

                                                       JUDGMENT

The Appeal suit is filed against the judgment and decree dated

11.09.2013 passed in OS.No.96 of 2010 on the file of the II

Additional District Court, Pondicherry.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial Court.

3. The suit is filed for partition. The case of the plaintiff is that the

suit property belonged to one, Thangavel Chettiar. He got married with

one, Annapoorani and gave birth to one, Patchayappan @ Perumal and

Chinnammal. After death of the said Annapoorani, he got another

marriage with one, Kammatchi and gave birth to five issues, namely

Saroja @ Panjali, Vasantha @ Kuppu, Kannan @ Kannappan, Sicila and

Sekar @ Duraisamy. The son born through Annapoorani got married the

first defendant and begot with five issues, namely defendants 2 to 5

herein and the plaintiff. During the life time of Thangavel Chettiar, he

executed registered settlement deed dated 11.09.1980 in favour of his

children. As per the settlement deed, 'A' schedule property was allotted

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

in favour of the son born through his first wife. Thereafter, on

01.07.1987, he executed sale deed in favour of one, Balamurugan

insofar as the part of the property admeasuring 75 kuzhis in respect of

the first item of the suit property out of 85 ares. Thereafter, he died on

18.05.2004 leaving behind the plaintiff and the defendants as his legal

heirs. After his demise, they are all in joint possession of the suit

property. Therefore, the plaintiff sought for partition.

4. Resisting the same, the fifth defendant filed written statement

stating that their father borrowed huge loan amount from various third

parties since 1982 and died without discharging any debts. Therefore,

most of the debts incurred by their father were only towards marriage

of the plaintiff. In fact, all the properties were already handed over to

the possession of the creditors by their father and after settling the

entire debt, the property was recovered from the creditors by the

defendants. The fourth defendant is the Government servant and he

had settled the entire loans availed by their father. Therefore, the

plaintiff is not entitled to have any share in the suit property and prayed

for dismissal of the suit.

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

5. On hearing the rival pleadings, the learned trial Judge framed

the following issues for determination of the suit :-

(i) Whether the plaintiff is entitled for preliminary decree

for partition and separate possession of the suit schedule

mentioned properties by metes and bounds into six

equal shares as between the plaintiff and the defendants

and allot 1/6th share to the plaintiff?

(ii) Whether plaintiff is entitled for delivery of 1/6th share

in the suit schedule mentioned properties?

(iii) Whether plaintiff is entitled for final decree?

(iv) Whether plaintiff is entitled for permanent injunction

restraining the defendants from alienating or

encumbering the suit properties to any third parties?

(v) To what relief the plaintiff is entitled to?

6. In support of the plaintiff's case, P.W.1 to P.W.3 were examined

and twenty four documents were marked as Ex.A.1 to Ex.A.24. On the

side of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to

Ex.B.10 were marked. On considering the oral and documentary

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

evidences adduced by the respective parties and the submission made

by the learned counsel, the trial Court decreed the suit that the plaintiff

is entitled to have 1/6 share in the suit properties. Aggrieved by the

same, the defendants 1, 4 and 5 have preferred this appeal suit.

7. The learned counsel for the appellants would submit that the

deceased Pachiappan died on 18.05.2004 and on which date, the

plaintiff and the defendants 2 and 3 cannot be treated as co-parceners.

After promulgation of Hindu Succession Act by the parliament, any

customary law contrary to the Parliamentary Statute is null and void.

Therefore, the customary law would not apply to the State of

Pondicherry and Central Act, 39 of 2009 will apply to the State of

Pondicherry. As such, the plaintiff never became co-parcener and she is

not entitled to have any share over the property. He further submitted

that the vested right cannot be divested and consequently, the rights of

the appellants to the property cannot be removed abrogated of

bestrewed by later events. Therefore, he prayed for dismissal of the

suit.

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

8. Per contra, the learned counsel for the respondents submitted

that the plaintiff and the defendants belong to Pondicherry and not to

the State of Tamil Nadu. Therefore, applying the law relating to Hindu

woman in the state of Pondicherry is set out in the legal position in the

case of Ramalingam Vs. Manicka Gounder reported in (1980) 1

MLJ 350. The said judgment has been followed by this Court

repeatedly and as such the plaintiff has right over the property and the

trial court rightly allowed the suit and allotted 1/6 share in the suit

property. As such, he prayed for dismissal of the appeal suit.

9. Heard, Mr.V.Raghavachari, the learned counsel for the

appellants, and Mr.R.Thiagarajan, the learned counsel for the first

respondent.

10. The only point for consideration in this appeal is the right of a

Hindu domiciled in Pondicherry, who claims any right on the basis of

devolvement of ancestral property.

11. Admittedly, the plaintiff and the defendants belong to

Pondicherry. In the judgment of the Hon'ble Division Bench of this Court

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

in the case of Viswanathan Vs. Savarimouthurayan reported in

2004 (2) LW 259, the legal position has been directly set out in

paragraph 10, which reads as under:

10. The learned Judge in the decision in Ramalingam v. Manicka Gounder, 1980(1) M.L.J. 350, has held as follows:-

"10. In the event, I think, it would be proper to hold that under the Hindu law as in vogue in Pondicherry all properties held by a father in a joint family are his absolute properties, whatever might be their origin or their modes of acquisition, and all of them devolve on his death in accordance with the law which governs succession to a male Hindu's absolute estate. This was the law as administered in Pondicherry when the Hindu Succession Act, 1956 came to be extended to that territory in 1963.

Therefore, the legal position is very clear and the plaintiff is entitled to

have 1/6 share in the suit properties. The property of a male Hindu

when devolve on his sons and daughters in the absence of any other

clause 1 heirs as per Section 6, under Section 10, the sons and

daughters would share the property equally as between themselves.

Therefore, the law of succession is applicable to the parties and Hindu

Customary Law prevalent in Pondicherry.

https://www.mhc.tn.gov.in/judis/ AS.No.578 of 2013

12. Admittedly, the property was allotted in favour of the plaintiff

and the defendants’ father by the settlement deed dated 11.09.1980.

During his life time, he conveyed part of the property in favour of one,

Balamurugan and after his demise on 18.05.2004, the remaining