Madras High Court
S.Annapoorni Bai vs Subramaniam ... 9Th on 5 October, 2021
S.A.No.1332 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1332 of 2003
and
M.P.(MD)No.1 of 2010 & 1 of 2015
1.S.Annapoorni Bai ... Plaintiff / 1st Respondent / Appellant
2.N.Arulchandar ... Appellant
(R21 is transposed as 2nd appellant)
-Vs-
1.Subramaniam ... 9th Defendant / Appellant / Respondent
2.Vairavan (Died) ... 1st Defendant / 2nd Respondent / Respondent
3.Kulalamani (Died) ... 4th Defendant / 4th Respondent / Respondent
4.Nagarajan (Died) ...5th Defendant / 5th Respondent / Respondent
5.Rajamani (died) ... 6th Defendant / 6th Respondent / Respondent
6.Gandhi Bai ... 7th Defendant / 7th Respondent / Respondent
(R4 to R6 are recorded as Lrs of the deceased R3
vide order dated 26.03.2013 made in M.P.(MD)Nos.1 to 6 of 2013)
7.Ramachandran ... 8th Defendant / 8th Respondent / Respondent
8.Vaidyalingam (Died)
9.B.Kalavathy
10.K.Vasanthi
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S.A.No.1332 of 2003
11.R.Satheesh Kumar
(R9 to R11 are brought on record as LRS of the deceased 5th respondent
vide order dated 14.11.2016 made in M.P.(MD)No.1 of 2008)
12.V.Nagendran (Died)
13.R.Gomathi
14.R.Valliammal
15.R.Kamalam
(R12 to R15 are brought on record as Lrs of the deceased R2 as per
order dated 12.02.2019 in M.P.(MD)Nos.1 to 3 of 2013)
16.R.Krishnammal
17.K.Sankar
(R16 & R17 are brought on record as Lrs of the deceased R8
as per order dated 14.11.2016 in M.P.Nos.4 to 6 of 2013)
18.Kamala
19.N.Sankar
(R18 & R19 are brought on record as Lrs of the deceased R4 as per
order dated 12.02.2019 in C.M.P.(MD)Nos.2430 to 2432 of 2016)
20.N.A.Nagalatha (Died)
21.N.Arulchandar
(R20 and R21 are brought on record as Lrs of the deceased 12th respondent
vide order dated 17.07.2020 made in C.M.P.(MD)No.2349 of 2020)
(R21 is transposed as 2nd appellant)
22.Rajaram
23.Karthik
(R22 & R23 are brought on record as Lrs of the deceased 20th Respondent
vide order dated 26.08.2021 made in C.M.P.(MD)Nos.6826, 6827
and 6829 of 2021) ... Respondents
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S.A.No.1332 of 2003
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 28.03.2003 made in A.S.No.91
of 2000 on the file of the I Additional Subordinate Judge, Nagercoil,
reversing the judgment and decree dated 14.10.1998 made in O.S.No.1055
of 1985 on the file of the II Additional District Munsif, Nagercoil.
For Appellants : Mr.S.Parthasarathy
for Mr.K.Govindarajan
For R1 & R13 : Mr.T.S.R.Venkataraman
For R6, R14, R15,
R18 & R19 : Mr.G.Ramanathan
For R7 : Mr.T.Arul
For R9 to R11 : Mr.M.P.Senthil
For R22 & R23 : Mr.P.S.Ganesan
For R16 & R17 : no appearance
JUDGMENT
The plaintiff in O.S.No.1055 of 1985 on the file of the second
Additional District Munsif, Nagercoil filed this second appeal.
2. The suit was one for partition. The suit schedule comprises two
items. Item No.1 originally belonged to Rama Lakshmi and devolved on
her daughter Deivanai and then on her daughter Saraswathi. The suit item
No.2 originally belonged to Sivarama Krishnan and later devolved on his
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S.A.No.1332 of 2003
son Palaniyandi. Saraswathy and Palaniyandi got married to each other and
through the said wedlock, one Kulalamani was born. Kulalamani got
married to Sivasooriyan. The genealogy is as under:-
Ramalakshmi
(daughter)
Deivanai Sivaramakrishnan
(daughter) Son
Saraswathy - Palaniyandi
(daughter)
Kulalamani – Sivasooriyan
Vairavan D1/R2(dead) Nagarammal D2 (dead) Saraswathy D3(dead) Shankaran
Vairavan D1/R2 (dead)
Gomathi R13-Subramanian Valliammal R14-Ramachandran Kamalam Nagendran R12 (died)
D9 (D.W.3) / R1 D8 (D.W.2)/R7 R15 -(P.W.1)Anna Poorani (Plaintiff)
Nagalatha -R20(died) Arul Chandar(R21)
-Rajaram (originally R22) Now Appellant(transposed)
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S.A.No.1332 of 2003
Now R21
Karthick (originally R23)
Now R22
Nagarammal D2 (died)
Subramanian D9 (D.W.3)/R1 Vaidyalingam (dead)R8
- Krishnammal R16
Shankari R17
Saraswathy D3 (died)
Annapoorani (P1)-Nagendran (died)
Shankaran
Valliammal 1st Wife Kulalamani D4/R3
no issues
Nagarajan Rajamani Gandhibai
D5 (died) D6(died) R5 D7/R6
-Kamala R18 - Kalavathi (R9)
Shankar R19
Vasanthi R10 Sathish Kumar R11
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S.A.No.1332 of 2003
3. It can be seen from the genealogy that Kulalamani and
Sivasooriyan had two sons and two daughters. The plaintiff Annapoorani
was born to Saraswathy. Her case was that Kulalamani died in the year
1959 intestate. Therefore, each of the four branches got 1/4th undivided
share in both the suit items. But elder son Vairavan had sold the entire suit
item No.2 in favour of his son-in-law Ramachandran/D8. In the same
manner, the legal representatives of Shankaran who had pre-deceased
Kulalamani wrongly sold the suit item No.1 in favour of the 9 th defendant
Subramaniam. Therefore, apart from seeking partition of her 1/4th share in
these two suit items, the plaintiff Annapoorani also sought declaration that
both the sale deeds namely Ex.A7 and Ex.A8 should be declared as null and
void. Saraswathy one of the daughters of Kulalamani executed settlement
deed Ex.A1 dated 07.03.1985 in favour of the plaintiff. Based on the said
deed of settlement, the plaintiff filed the said suit seeking the relief of
partition and for nullifying the aforesaid two sale deeds. Most of the
defendants filed written statements controverting the plaint averments. D8
Ramachandran in his written statement took the stand that Saraswathy died
on 25.01.1956 and not in the year 1959 as claimed by the plaintiff. Based
on the divergent pleadings, the trial court framed as many as 12 issues. One
of the issues was whether Kulalamani died in the year 1959. The plaintiff's
husband Nagendran was examined as P.W.1. Ex.A1 to Ex.A53 were
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S.A.No.1332 of 2003
marked. On the side of the defendants, D6, D8 and D9 examined
themselves as D.W.1 to D.W.3. Ex.B1 to Ex.B14 were marked. After a
consideration of the evidence on record, the trial court declared that the
offending sale deeds namely Ex.A7 and Ex.A8 are null and void.
Preliminary decree was passed granting 1/4th share in the plaint schedule
properties in favour of the plaintiff. Aggrieved by the same, the 9 th
defendant Subramanian filed A.S.No.91 of 2000 before the first Additional
Sub Court, Nagercoil. It is seen that Vairavan, legal heirs of Shankaran and
Ramachandran jointly filed A.S(SR)No.5604 of 2000 before the District
Court. It appears that the said appeal was filed with delay. To condone the
delay, I.A.No.81 of 2000 was filed. During its pendency, Vairavan had
passed away and proper steps were not taken and the said proceedings got
abated in due course. In the result, only the first appeal filed by
Subramanian was there. The said first appeal was allowed by the impugned
judgment and decree dated 28.03.2003 by the first appellate court and the
decision of the trial court was reversed and the suit came to be dismissed.
Challenging the same, this second appeal came to be filed by the plaintiff.
4. The second appeal was admitted on the following substantial
questions of law:-
“1.Whether the finding of the lower appellate court that the third
defendant/mother of the appellant/plaintiff is not entitled to right to the suit
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S.A.No.1332 of 2003
properties under Section 15 of the Hindu Succession Act, 1956 is correct in
law?
2. Whether the finding of the lower appellate court that the appellant /
plaintiff has not proved the allotment of properties by means of an oral
partition in favour of her mother/3rd defendant is correct in law?”
During the pendency of the second appeal, the original appellant
Annapoorani passed away and her grandson who was figuring as R21 got
himself transposed as the appellant to prosecute the appeal.
5.Heard the learned counsel on either side.
6.The learned counsel appearing for the appellant 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 appellant
and allow this appeal and set aside the impugned judgment and decree
passed by the first appellate court and restore the decision of the trial court.
7.Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
8.There can be no dispute that suit item No.1 devolved on
Kulalamani from the maternal side and the suit item No.2 devolved from
the paternal side. This devolution will have significance, if Kulalamani had
died prior to coming into force of the Hindu Succession Act, 1956. Before
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S.A.No.1332 of 2003
coming into force of the Hindu Succession Act, 1956, if the property had
devolved on daughter from the paternal side, after her demise, it will revert
back to the legal heirs of the father. If the property had devolved from the
maternal side, it will be an absolute property in her hands and after her
demise, it will devolve on her legal heirs. That is why, in the case on hand,
if Kulalamani had died prior to coming into force of the Hindu Succession
Act, 1956, item No.2 will devolve only her sons and two daughters namely
Nagarammal and Saraswathy would not get any share therein. That is why,
one of the defendants had contended that Kulalamani had died on
25.01.1956. The plaintiff on the other hand contended that Kulalamani had
died in the year 1959. I must note that the evidence on either side in this
regard is not satisfactory. I take it that neither of the parties have proved
their respective contentions.
9.The learned counsel appearing for the respondents would contend
that in such an event that this Court should invoke Section 101 of the Indian
Evidence Act, 1872 and hold that the plaintiff had not proved her claim that
Kulalamani died in the year 1959. On the other hand, the learned counsel
for the appellant would contend that the suit being one for partition and all
the parties remain in the same position and the question of casting burden
of proof on a particular party would not arise at all. I do not agree with the
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S.A.No.1332 of 2003
contention of the learned counsel for the appellant fully in this regard
because the plaintiff had asked for nullifying the sale documents. At the
same time, I am also not able to accept the contention of the learned counsel
for the respondents that Section 101 of the Indian Evidence Act, 1872 is
applicable.
10. In my view, the trial court had erroneously framed the issue as
regards the death of Kulalamani. Section 107 of the Indian Evidence Act,
1872 reads as follows:-
107. Burden of proving death of person known to have been alive
within thirty years:- When the question is whether a man is alive or
dead, and it is shown that he was alive within thirty years, the burden
of proving that he is dead is on the person who affirms it.
11. Take inspiration from this provision, the case of the plaintiff can
be projected to the effect that according to the plaintiff, Kulalamani was
alive as on 25.01.1956. Some of the defendants particularly D8 had
contended that Kulalamani was dead on the said date. Since as per Section
107 of the Indian Evidence Act, 1872, Kulalamani may be deemed to be
have been alive on the said date, burden of proof would obviously shift on
D8 to show that Kulalamani was dead on the said date. Since D8 had not
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S.A.No.1332 of 2003
discharged the burden cast on him, it must be taken that Kulalamani was
alive on the said date. There is no dispute that Kulalamani died intestate.
Therefore, logical conclusion is that the suit items 1 and 2 devolved in
equal shares on all the four children namely Vairavan, Nagarammal,
Saraswathy and Shankaran. Since Shankaran had pre-deceased Kulalamani,
1/4th undivided share devolved on the legal heirs of Shankaran. This is
further reinforced by Ex.A2 dated 22.01.1974. Ex.A2 is the order issued by
the Additional Assistant Settlement Officer, Nagercoil, whereby the names
of all the four branches were entered in the settlement patta. It is relevant to
mention here that during the settlement enquiry, Vairavan as well as
Nagarajan son of late Shankaran were examined as witnesses. Ex.A2 was
not questioned in the manner known to law in any civil proceedings.
Therefore, Ex.A2 had become final. Hence, the irresistible conclusion is
that all the four branches had only 1/4th undivided share in both the suit
items.
12. The original appellant Annapoorani sought two reliefs. One was
for partition of her 1/4th share in the suit items. The other prayer was for
nullifying Ex.A7 and Ex.A8. The suit was decreed as prayed for and both
the sale deeds were nullified. Ex.A7 was executed by Vairavan in favour of
Ramachandran. Vairavan elder son of Kulalamani had assumed that he was
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S.A.No.1332 of 2003
entitled to deal with suit item No.2 as a whole. He had orally released a
portion of the suit item No.2 in favour of Shankaran branch. He had sold
the remaining two cents with the building in favour of Ramachandran under
Ex.A7 dated 27.08.1984. The said sale deed had been nullified by the trial
court. Questioning the same, Ramachandran along with Vairavan and
others filed an appeal before the first appellate court. But the said appeal
got abated and could not be prosecuted. Therefore, nullification of Ex.A7
has become final and the first appellate court could not have interfered with
the same.
13. Ex.A8 was executed by the legal heirs of Shankaran in favour of
the first respondent namely Subramanian. Under Ex.A8, Shankaran branch
had sold two cents of land in suit item No.1 in favour of R1. Since I have
come to the conclusion that each branch has only undivided 1/4th share in
each of the suit items, the substantial questions of law are answered in
favour of the appellant. The impugned judgment and decree passed by the
first appellate court are set aside. The second appeal is disposed of as
follows:-
(I) The present appellant Arulchandar is entitled to 1/8th undivided
share in both the suit items. Rajaram and Karthick, husband and son of
Nagalatha, will be entitled to 1/8th share in both the suit items by virtue of
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S.A.No.1332 of 2003
being the legal heirs of the original plaintiff Annapoorani Bai.
(ii) Ex.A8 executed by the legal heirs of Shankaran in favour of
Subramanian (R1 herein) is valid to the extent of vendor's 1/4 th undivided
share. Subramanian and the legal heir of his sibling Vaidyalingam will be
entitled to 1/4th undivided share in both the suit items in their capacity as
legal heirs of Nagarammal.
(iii) The legal heirs of Vairavan will be entitled to 1/4th undivided
share in both the suit items. The legal heirs of Shankaran will have 1/4 th
undivided share in item No.2.
While working out their rights, the respective parties in the final decree
proceedings will have to pay the adequate court fee for the shares to be
allotted. No costs. Consequently, connected miscellaneous petitions are
closed.
05.10.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The I Additional Subordinate Judge, Nagercoil.
2.The II Additional District Munsif, Nagercoil.
Copy To
The Section Officer,
Vernacular Records,
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S.A.No.1332 of 2003
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.No.1332 of 2003
05.10.2021
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