Ponnaiah vs Chidambarathammal
2021 Latest Caselaw 17835 Mad

                                                                            S.A.(MD)No.226 of 2012

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 01.09.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.226 of 2012


                   Ponnaiah                  ... Appellant / 2nd Appellant / 2nd Plaintiff
                                                     -Vs-


                   1.Chidambarathammal
                   2.Padagalinga Mudaliar ... 1st & 2nd Respondents / 2nd & 3rd Respondents/
                                                                      2nd & 3rd Defendants
                   3.Visalatchi
                   4.Parvathi
                   5.Arumugam
                   6.Minor.Ramalakshmi
                   7.Minor.Ganesan             ... 3 to 7 Respondents / 4 to 8 Respondents /
                                                          3rd parties/ Lrs of 1st Defendant
                   (Minor 6 & 7 were represented through their father
                      and natural guardian 5th respondent herein)


                   8.S.Narayanan                   ... 8th Respondent / 1st Appellant / 1st Plaintiff
                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree passed in A.S.No.182 of 2005, dated
                   26.08.2011 on the file of the Sub-Court, Ambasamudram confirming the
                   judgment and decree passed in O.S.No.34 of 2004, dated 02.09.2005 on the
                   file of the Principal District Munsif Court, Ambasamudram.
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                                                                             S.A.(MD)No.226 of 2012



                                          For Appellant       : Mr.V.Meenakshisundaram
                                                                for Mr.D.Nallathambi
                                          For R1              : Mr.S.Meenakshisundaram
                                                                 Senior Counsel
                                                                for Mr.R.Manimaran
                                          For R2 to R8        : No appearance


                                                     JUDGMENT

The second plaintiff in O.S.No.120 of 1992 ( later re-numbered as

O.S.No.34 of 2004) on the file of the Principal District Munsif Court,

Ambasamudram, is the appellant herein.

2. The genealogy is as under:-

Narayana Mudaliar

Subbiah Mudaliar

S.Narayanan S.Ponniah Padagalingam Chidambarathammal 3 more (P1) (P2) (D3) (D2) daughters

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S.A.(MD)No.226 of 2012

3. The appellant herein was born with two brothers and four sisters.

The appellant along with another brother by name S.Narayanan filed the

said suit for partition and separate possession of 1/2 share in the suit

properties. The suit items are six in number. In the suit, the plaintiffs had

impleaded only their father Subbiah Mudaliar, one of the sisters

Chidambarathammal and other brother Padagalinga Mudaliar as defendants.

The other sisters were not impleaded as defendants. The purpose of

impleading Chidambarathammal as D2 was because the father Subbiah

Mudaliar had settled the 3rd suit item in her favour vide Ex.B4-settlement

deed dated 29.08.1986. The first defendant namely father Subbiah

Mudaliar filed written statement contending that the suit 3rd item was his

self acquired property and that he was entitled to settle the same in favour

of his daughter Chidambarathammal. He also submitted that for performing

the marriage of the other daughters and for meeting out the educational

expenses of the sons, he had availed a loan of Rs.70,000/- from his son-in-

law namely Velayutha Mudaliar who was none other than the husband of

the daughter Chidambarathammal. He had repaid a sum of Rs.30,000/- and

the balance amount of Rs.40,000/- remained to be paid to the son-in-law.

He however conceded that the other items namely item no.1, 2, 5 &6 are

ancestral properties and that they are amenable for partition. Based on the

divergent pleadings, the trial court framed the necessary issues. Vide https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

judgment and decree dated 24.04.2002, the trial court granted preliminary

decree for partition of 1/4th share for three sons and father in all the six

items. The trial court had originally held that the suit 3rd item was also the

ancestral property and that the first defendant could not have executed the

settlement deed pertaining to the suit item No.3. Aggrieved by the same,

the first and second defendants filed A.S.No.124 of 2002 before the second

Additional District Court, Tirunelveli. The first appellate Court confirmed

the preliminary decree granted by the trial Court in respect of the suit items

1, 2, 5 & 6 and the matter was remanded only for deciding the rights of the

parties in respect of the suit items 3 and 4. After remand, the suit was re-

numbered as O.S.No.34 of 2004 on the file of the Principal District Munsif

Court, Ambasamudram. Further evidence was adduced. P.W.1 was

re-examined and Ex.A14 to Ex.A44 were marked. After considering the

entire evidence on record, the trial Court held that while the 4 th item is also

an ancestral property amenable for partition, the suit 3rd item was the self

acquired property of Subbiah Mudaliar and sustained Ex.B4-settlement

deed. It granted preliminary decree for partition in respect of the suit 4 th

item.

4. The plaintiffs aggrieved by the refusal to pass preliminary decree

in respect of suit 3rd item, filed A.S.No.182 of 2005 before the Sub Court, https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

Ambasamudram. The first appellate Court confirmed the decision of the

trial Court and dismissed the appeal vide judgment and decree dated

26.08.2011. Aggrieved by the same, this second plaintiff filed this second

appeal. The second appeal was admitted on the following substantial

questions of law:-

“(a) When the 1st defendant admits in his evidence that at the time of purchase of suit 3rd item property, the family business was managed by his father late Narayana Mudaliar and only after his demise in the year 1953 the family business was handed over to him and he has no independent source of income in the year 1952, whether the findings of the Courts below that the appellant / 2nd plaintiff has not discharged his burden of proof by ignoring the admissions of 1st defendant are sustainable and hence warrant interference under Section 100 of Civil Procedure Code?

(b) Since the 1st defendant is the Kartha of the joint family and the suit 3rd item property stands in the name of the kartha (manager of the joint family property) creates a legal presumption that it is a joint family property and in contra the 1st defendant failed to prove his independent source of income at the time of purchase of suit 3 rd item property, whether the judgment and decree passed by the courts below holding that suit 3rd item property is a self acquired property of the 1st defendant are correct in law?”

5. Heard the learned counsel appearing for the appellant and the

learned senior counsel appearing for the contesting respondents.

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S.A.(MD)No.226 of 2012

6. The learned counsel appearing for the appellant submitted that the

scope of controversy in this second appeal is only regarding the character of

suit item No.3 and whether Subbiah Mudaliar could have executed Ex.B4-

settlement deed in favour of the second defendant Chidambarathammal. He

pointed out that in Ex.B4-settlement deed, it had been stated that the

property was purchased by Subbiah Mudaliar vide sale deed dated

27.04.1952. Before the first appellate Court, the plaintiffs attempted to

mark the said document as additional evidence. However, the first appellate

Court declined to permit the plaintiffs to do so. In view of Section 105 of

C.PC., the appellant herein is very much entitled to canvass the said point.

The sale deed dated 27.04.1952 is a registered document (Document No.

405 of 1952). It has been enclosed in the typed set of papers. A mere

reading of the said document would show that the sale consideration of

Rs.600/- was paid by Narayana Mudaliar father of Subbiah Mudaliar. He

also would point out that D.W.1 when questioned in this regard had

categorically stated that he did not remember as to who paid the sale

consideration for purchasing the suit item No.3. He also stated that

Narayana Mudaliyar passed away on 18.02.1953 and only thereafter,

Subbiah Mudaliyar was possessed of independent funds. He therefore

submitted that it is futile to contend that suit item No.3 is the self acquired

property of Subbiah Mudaliyar. Once the true character of suit item No.3 https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

was recognised, Ex.B4-settlement deed becomes void. The learned counsel

placing reliance on the decision reported in (1987) 3 SCC 294 (Thamma

Venkata Subbamma Vs. Thamma Rattamma (Dead) by LR and others)

contended that coparcener can release his undivided share in the

coparcenary property only in favour of the remaining coparceners. He

cannot gift his undivided share in favour of a particular coparcener. He

therefore called upon this Court to answer the substantial questions of law

in favour of the appellant and grant preliminary decree for partition in

favour the plaintiffs in respect of the suit item No.3 also.

7. Per contra, the learned Senior Counsel appearing for the

respondents strongly reiterated that the Courts below have concurrently

found that the suit item No.3 is the self acquired property of Subbiah

Mudaliar and that therefore exercising jurisdiction under Section 100 of

C.P.C., the said finding ought not to be upset. He also would state that in

Ex.B4 itself, there is a reference to parent document dated 27.04.1952.

Therefore, nothing stopped the plaintiffs from marking the said document

before the trial Court. In this case, the suit was tried in the first instance

and after remand by the first appellate Court, further evidence was also

adduced. Thus, the plaintiffs had two opportunities to mark the said

document. Having failed to do so, the plaintiffs do not deserve one more https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

opportunity under Order 41 Rule 27 of C.P.C. He stressed the fact that

litigant should be prudent enough and if due to negligence litigant fails to

bring on record the piece of evidence, the Courts should not be over

indulgent. He also would state that in view of the authoritative

pronouncement of the Hon'ble Supreme Court in Vineeta Sharma Vs.

Rakesh Sharma ((2020) 9 SCC 1), the preliminary decree allotting shares

in respect of the other items will have to be re-worked. In other words, the

learned Senior Counsel would contend that the allotment of the 3rd item in

favour of Chidambarathammal under Ex.B4 should be sustained.

8. While re-working the shares in the light of the Vineeta Sharma

Case, I carefully considered the rival contentions and went through the

evidence on record. The Courts below have concurrently found and there is

also no dispute that the suit items 1, 2, 4, 5 & 6 are ancestral properties and

they are amenable to partition. In view of Vineeta Sharma decision, not

only the sons but also the daughters will have equal share in the

coparcenary property. Subbiah Mudaliar had three sons and four daughters.

Therefore, the appellant Ponnaiah is allotted 1/7th share in the suit items 1,

2, 4, 5 & 6. Chidambarathammal (R1), Padagalinga Mudaliar (R2),

Visalatchi (R3) , Parvathi (R4) and Narayanan (R8) are also allotted 1/7th

share in the suit items 1, 2, 4, 5 & 6 each. R5, R6 & R7 are the legal heirs https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

of the deceased Lakshmi pre-deceased daughter of Subbiah Mudaliar.

R5, R6 and R7 are allotted 1/7th share in suit item No.1, 2, 4, 5 & 6. Now

the only question that arises for consideration is regarding the character of

suit item No.3.

9. Even though the learned senior counsel appearing for the

respondents would vehemently contend that suit item No.3 is a self

acquired property of Subbiah Mudaliar, I am more than satisfied that it is

also an ancestral property. This is because, there is internal evidence to

justify such a conclusion. I have already pointed out that in Ex.B4-

settlement deed, there is a clear and categorical reference to the sale deed

dated 27.04.1952. The appellants had attempted to mark the said document

as additional evidence before the first appellate Court. In fact, a ground had

also been categorically taken in this regard. A perusal of the terms of the

sale deed which is a registered document would show that the sale

consideration was paid by Narayanana Mudaliar, father of Subbiah

Mudaliar. When Subbiah Mudaliar was questioned during cross

examination, he stated that he did not remember as to who paid the sale

consideration. It was not the case of Subbiah Mudaliar that he paid the sale

consideration. If Subbiah Mudaliar had taken such a stand, then, I can

consider the contention of the learned senior counsel for the respondents https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

that the said amount came from the independent earnings of Subbiah

Mudaliar. When Subbiah Mudaliar himself did not take such a stand, it is

not open to the Senior Counsel to take a different stand before me.

Therefore, in view of the terms of the sale deed dated 27.04.1952, I come to

the conclusion that the suit item No.3 is also an ancestral property.

10. The next question falls for consideration is whether even after

such a conclusion, Ex.B4-settlement deed can stand. As rightly pointed out

by the learned Senior Counsel for the respondents, Chidambarathammal

was the eldest daughter. Subbiah Mudaliar had stated that

Chidambarathammal's husband Velayutha Mudaliar had financially assisted

him for meeting out several family expenses such as marriage expenses of

the other daughters and the educational expenses of the sons. It was not a

submission made in the air. Evidence had been marked to substantiate the

said contention. According to Subbiah Mudaliar, he had already paid a sum

of Rs.30,000/-. While he had cleared a portion of the liability, he still owed

to pay a sum of Rs.40,000/- to his son-in-law Velayutha Mudaliar who is

none other than the husband of Chidambarathammal.

11. The learned senior counsel also drew my attention to the decision

of the Madras High Court reported in AIR 1966 Mad 266 https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

(P.N.Venkatasubramania Iyer Vs. P.N.Easwara Iyer), in which it has been

held that it is open to the Karta to make gift of a reasonable portion of

ancestral property commensurate with the status and wealth of the family

even after years.

12. In this case, kartha had admitted that he owed to pay a sum of

Rs.40,000/- to Velayutha Mudaliar / his son-in-law. Subbiah Mudaliar has

also testified that it was the daughter who was taking care of him during the

past 15 years of his life. On the other hand, one son appears to have caused

physical injuries leading to lodging of police complaint. Taking into

account of these factors, one can certainly come to the conclusion that

making gift of suit item No.3 in favour of Chidambarathammal appears to

be perfectly reasonable. That is why, even though I have sustained the

contention of the learned counsel appearing for the appellant that suit item

No.3 is an ancestral property, in view of the aforesaid reasons, I uphold the

validity of Ex.B4. The decision of the courts below sustaining validity of

Ex.B4 is confirmed. The substantial questions of law are answered against

the appellant. For the reasons now set out herein, the second appeal is

disposed of accordingly. No costs.

01.09.2021

Internet : Yes/No Index : Yes/No rmi https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.226 of 2012

G.R.SWAMINATHAN, J.

rmi

To

1.The Sub-Court, Ambasamudram

2.The Principal District Munsif Court, Ambasamudram.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.226 of 2012

01.09.2021

https://www.mhc.tn.gov.in/judis/