Madras High Court
G.Karunanithi vs G.Venmadevi on 30 June, 2021
AS.No.1222 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.06.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.1222 of 2015
and
MP.No.1 of 2015 and CMP.Nos.4177 & 4180 of 2021
G.Karunanithi ... Appellant
Vs.
1.G.Venmadevi
2.G.Manimegalai ...Respondents
PRAYER:
Appeal Suit is filed under Section 96 of CPC against the
judgment and decree of the learned I Additional District Judge of
Salem dated 18.03.2015 in OS.No.76 of 2012.
For Appellant : Mr.J.Hariharan
for Mr.V.Nicholas
For Respondents
For R1 : Mr.M.Devaraj
For R2 : Mr.Vijay
for Mr.G.Purushothaman
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AS.No.1222 of 2015
JUDGMENT
The first appeal is filed against the judgment and
decree of the learned I Additional District Judge of Salem dated
18.03.2015 in OS.No.76 of 2012.
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 plaintiff and the defendants are brother and sisters born to
P.A.Govindan and Samundeeswari. The first item of the suit properties
are the ancestral joint family properties. As per the koor chit dated
02.07.1989 executed between her father and his family members, in
which 'C' schedule property was allotted to her father and he was put
up in possession and enjoyment of the same. 'C' schedule property
which was mentioned in the coor chit are the first item of the suit
properties. Her father died intestate on 07.03.2007 and his wife
predeceased on 02.01.2006 leaving behind the plaintiff and the
defendants as their legal heirs. They are in joint possession and
enjoyment of the first item of the suit property. The suit second item of
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AS.No.1222 of 2015
the properties was purchased in the name of the first defendant by
virtue of sale deed dated 06.06.1985 out of the income derived from
the ancestral property, i.e. the first item of the suit properties. Though
the property was purchased in the name of the first defendant, he has
no independent income and means to purchase the same. Therefore,
the plaintiff is entitled to have 1/3 share in the suit properties. Hence,
the suit.
4. Resisting the same, the first defendant filed written
statement and admitted allotment in favour of their father in respect of
the first item of the suit property. Insofar as the second item of the suit
property, was not purchased from the income derived from the first item
of the suit property. It is the self acquired property of the first
defendant and while he was working in the dairy farm, he earned
money and from the hard earned money, the second item of the suit
property was purchased. Therefore, the plaintiff is not entitled for any
share in the second item of the suit schedule property. During the life
time of their father, he executed settlement deed dated 28.12.2006 and
25.01.2005 in favour of the first defendant in respect of the first item of
the suit property. The plaintiff got married in the year 1985 and the
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AS.No.1222 of 2015
second defendant's marriage was held in the year 1971 and the
marriage expenditure and presentations were borne out by their father
and as such the father settled the property in favour of the first
defendant. The second defendant submitted to the decree.
5. On hearing the rival pleadings, the learned trial Judge
framed the following issues for determination of the suit :-
1. Whether the suit properties are ancestral properties
of the plaintiff and defendants?
2. Whether 2nd item property purchased from the
income of joint family property?
3. Whether the plaintiff's father Govindan has executed
a settlement deed dated 28.12.2006?
4. Whether the plaintiff is having 1/3 share in the suit
properties?
5. Whether the plaintiff is entitled for permanent
injunction as prayed for?
6. Whether the plaintiff is entitled for permanent
injunction as prayed for?
7. To what relief the plaintiff is entitled to?
Additional Issues:
1. Whether the plaintiff is entitled for declaration
declaring settlement deeds dated 04.05.1994,
25.01.2005 and 28.12.2006 as null and void?
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AS.No.1222 of 2015
2. Whether the declaratory relief to declare the
settlement deeds as null and void is barred by
limitation?
3. Whether the court fee paid is proper?
4. Whether 2nd defendant is having 1/3 share in the
suit properties?
5. Whether the 2nd defendant is entitled for preliminary
decree for partition and separate possession?
6. What other relief the plaintiff and 2nd defendant
entitled to?
6. In support of the plaintiff's case, P.W.1 was examined and
seven documents were marked as Ex.A.1 to Ex.A.7. On the side of the
defendants, D.W.1 and D.W.2 were examined and no documents were
marked. On considering the oral and documentary evidences adduced
by the respective parties and the submission made by the learned
counsel, the trial Court partly decreed the suit. Aggrieved by the same,
the first defendant has filed the present appeal suit.
7. The learned counsel for the appellant submitted that
though the settlement deeds dated 25.01.2005 and 28.12.2006, which
were marked as Ex.A6 and Ex.A7, declared as null and void, the father
had his share in the suit property, since admittedly it is ancestral
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AS.No.1222 of 2015
property. Therefore, the plaintiff, the defendants and their father are
having ¼ share in the suit property. Therefore, in respect of father's
share, he can very well settle the property in favour of the first
defendant. Therefore, the first defendant is entitled to have his share
and his father's share i.e. ½ share in the suit properties. As per Hindu
Succession (Tamil Nadu) Amendment Act, 1 of 1990 and Hindu
Succession Amendment Act, 39 of 2005 clearly envisages the share
from the ancestral property. Therefore, the first defendant is entitled to
have ½ share in the suit property.
8. Per contra, the learned counsel for the plaintiff submitted
that the plaintiff as well as the second defendant got married even prior
to 1989 and as such they are not entitled to invoke Hindu Succession
Amendment Act, 39 of 2005. Further, when the settlement deeds dated
25.01.2005 and 28.12.2006 which were marked as Ex.A6 and Ex.A7
were declared as null and void, the first defendant is not entitled to
have any share through the settlement deeds. Therefore, the court
below rightly partly decreed the suit and does not require any
interference by this Court.
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AS.No.1222 of 2015
9. Heard, Mr.J.Hariharan, the learned counsel for the
appellant, Mr.M.Devaraj, the learned counsel for the first respondent,
and Mr.Vijay, the learned counsel for the second respondent.
10. The only point arises in this appeal suit is whether the first
defendant is entitled to have ½ share in respect of item 1 of the suit
property except serial Nos.1 and 2. The plaintiff claimed 1/3 share in
the suit property as co-parcener. As per the amended Section 6 of Hindu
Succession Act, 1956, amended as per the Central Act, 39 of 2005, the
right accrues to daughter in the property of the joint hindu family is
absolute except in the circumstances provided in the provision amended
to Section 6(1) of Hindu Succession Act. The excepted categories are
that where disposition or alienation including any partition has taken
place before 20.12.2004; and where testamentary disposition of
property has been made before 20.12.2004. Ex.A5, settlement deed
executed by her father dated 04.05.1984 in respect of serial No.2 of the
first item of the suit property in favour of the first defendant. Therefore,
it is valid and binding on the plaintiff and the second defendant and
they are not entitled to claim any share in the said property.
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AS.No.1222 of 2015
11. After 20.12.2004, the plaintiff and the second defendant
have become co-parceners for other properties. Accordingly, the other
settlement deeds which were marked as Ex.A6 and Ex.A7 dated
25.01.2005 and 28.12.2006 executed by her father in favour of the first
defendant are not binding on the plaintiff, since the property is ancestral
in nature and the plaintiff along with defendants are co-parceners.
When the plaintiff and the defendants are co-parceners after
20.12.2004, their father is also one of the co-parcener. Therefore in
respect of the share of their father i.e. ¼ in the property is valid under
the gift deeds, Ex.A6 and Ex.A7. After execution of the settlement
deeds, their father died and as such the first defendant is entitled to
have his share along with his father's share.
12. Accordingly, the first appeal is partly allowed and the
judgment and decree passed by the learned I Additional District Judge
of Salem dated 18.03.2015 in OS.No.76 of 2012 is modified only to
the effect that the suit first item of the property except serial No.2, be
divided into four equal shares, in which the plaintiff and the second
defendant are entitled to have ¼ share each and the first defendant is
entitled to have ½ share. The remaining portion of the judgment and
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AS.No.1222 of 2015
decree dated 18.03.2015 shall remain intact. Consequently, connected
miscellaneous petitions are closed. No order as to costs.
30.06.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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AS.No.1222 of 2015
G.K.ILANTHIRAIYAN, J.
lok
To
The I Additional District Judge
of Salem
AS.No.1222 of 2015
30.06.2021
https://www.mhc.tn.gov.in/judis/
