Alagathal vs Thanamalli
2021 Latest Caselaw 18305 Mad

                                                                             S.A.(MD)No.466 of 2014

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 07.09.2021

                                                    CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A(MD)No.466 of 2014
                                                     and
                                             M.P.(MD)No.1 of 2014


                   1.Alagathal

                   2.Thangam                  ... Appellants / Appellants / Plaintiffs

                                                    -Vs-


                   1.Thanamalli
                   2.Periyathai
                   3.Chelladurai            ... Respondents / Respondents / Defendants


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree passed in A.S.No.64 of 2011 by the
                   Sub Court, Sankarankoil on 26.07.2013 confirming the decree and
                   judgment passed in O.S.No.312 of 2008 dated 17.03.2011 by the Additional
                   District Munsif Court at Sankarankoil.


                                     For Appellants         : Mr.R.Ramesh @ Ramiah
                                     For R1                : Mr.R.J.Karthick
                                     For R2 & R3           : no appearance


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


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                                                                               S.A.(MD)No.466 of 2014

                                                        JUDGMENT

This second appeal arises out of a partition suit in O.S.No.312 of

2008 on the file of the Additional District Munsif Court, Sankarankovil.

2. The plaintiffs are the appellants herein. The case of the plaintiffs is

as follows:-

The suit properties originally belonged to their grandfather

Arunachalathevar. He died some 30 years prior to the filing of the

suit. He left behind his son Ramasamy Thevar / father of the

plaintiffs. Ramasamy Thevar got married to the second defendant

Periyathai. Through the wedlock, the plaintiffs and the first defendant

Thanamalli were born. The first plaintiff got married in the year 1991.

The second plaintiff got married in the year 2000. The first defendant

got married in the year 1994. Ramasamy Thevar passed away in

March 2003. According to the plaintiffs, Ramasamy Thevar died

leaving behind his wife Periyathai and three daughters namely first

plaintiff, second plaintiff and first defendant as his surviving legal

heirs. The plaintiffs would contend that each of them would be

entitled to 1/4th share in the suit properties. However, the first

defendant had fabricated the document dated 20.01.2003 as if the suit

properties have been settled in her favour by Ramasamy Thevar.

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

S.A.(MD)No.466 of 2014

Based on the said document, she had also effected mutation in the

revenue records. She sold “B” schedule property in favour of the third

defendant Chelladurai vide Ex.B9-sale deed dated 03.11.2008. The

first defendant filed written statement controverting the plaint

averments. The defendants pleaded that the suit items absolutely

belonged to Ramasamy Thevar and that they were enjoyed by him

independently. It was also pointed out that Ramasamy Thevar during

his life time had alienated in favour of the local Church as well as the

third parties. The suit items were handed over to the first defendant

some 15 years ago and he formalized the arrangement by executing the

settlement deed dated 20.01.2003. The first defendant also pointed

out that the plaintiffs knew fully well that the suit properties were

enjoyed as her own property by the first defendant. Only to harass the

first and second defendants, the instant suit had been filed.

3. The defendants also pleaded that the suit was bad for partial

partition. Based on the rival pleadings, the trial Court framed the necessary

issues. The first plaintiff examined herself as P.W.1 and the second plaintiff

examined herself as P.W.2. Ex.A1 to Ex.A5 were marked. The first

defendant examined herself as D.W.1. The third defendant Chelladurai

examined himself as D.W.3. Ex.B1 to Ex.B9 were marked. The trial court, https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.466 of 2014

after a consideration of the evidence on record, dismissed the suit by

judgment and decree dated 17.03.2011. Aggrieved by the same, the

plaintiffs filed A.S.No.64 of 2011 before the Sub Court, Sankarankovil.

By the impugned judgment and decree dated 26.07.2013, the first appellate

court dismissed the appeal and confirmed the decision of the trial court.

Challenging the same, this second appeal came to be filed. The second

appeal was admitted on the following substantial questions of law:-

“1.Whether the courts below have correctly assessed the authority of the settlor under Ex.A4 document as per law and whether such a document even if it is valid, is likely to affect the share of the appellants?

2. Whether or not the lower courts have erred in not applying the provisions of the Hindu Succession Act as amended by the Tamil Nadu Amendment 1989 and the Central Amendment Act, 2005 to the facts?”

4. The learned counsel appearing for the appellants 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 appellants

and grant decree as prayed for.

5. The relationship between the parties is not in dispute. The

plaintiffs and the first defendant are the daughters of late Ramasamy Thevar

and the second defendant. The learned counsel appearing for the contesting

defendant would state that the plaintiffs have not pleaded that the suit

properties were the ancestral properties of Arunachalathevar. There is https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.466 of 2014

neither pleading nor evidence to that effect. When Ramasamy Thevar

inherited the suit properties from Arunachalathevar, they were the absolute

properties in his hands and hence, it was open to Ramasamy Thevar to settle

the property in favour of the first defendant. In this regard, the learned

counsel placed reliance on the decision reported in 2019 5 L.W. 289

(Govindan Vs. Revathi). He also would refer to the decision reported in

2018 7 SCC 646(Shyam Narayan Prasad Vs. Krishna Prasad) for the

proposition that pleadings are meant to give to each side, intimation of the

case of the other, so that, it may be met to enable courts to determine what

is really at issue between the parties and no relief can be granted to a party

without the pleadings. In the case on hand, since the plaintiffs have not

pleaded that the suit properties were ancestral properties at the hands of

Arunachalathevar, it is not open to the plaintiffs to fall back on Section 6 of

Hindu Succession Act, 1956. He therefore submitted that the Courts below

have correctly approached the issue on hand and submitted that the

substantial questions of law deserve to be answered against the appellants.

He also would point out that Ramasamy Thevar passed away in the year

2003 itself that is well before the Central Amendment Act came into force.

According to him, there is no point referring to Vineetha Sharma decision

because succession in this case opened well before the cutoff date ie.,

09.09.2005.

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

S.A.(MD)No.466 of 2014

6. I carefully considered the rival contentions and went through the

evidence on record. There is no dispute regarding the relationship between

the parties. The plaintiffs and the first defendant are daughters born to late

Ramasamy Thevar and the second defendant. The only question that falls

for consideration is whether the suit properties which belonged to

Arunachalathevar when inherited by Ramasamy Thevar became absolute

properties or they became coparcenary properties. It must be construed that

in the plaint, the plaintiffs have not made a specific allegation or claim that

the suit properties were the ancestral properties even in the hands of

Arunachalathevar. However, in Ex.A4-settlement deed dated 20.01.2003,

in the schedule of properties, Ramasamy Thevar /settlor had mentioned that

the properties were the ancestral properties. Thus, there is some evidence to

show that the properties are very much ancestral properties. That apart, this

being a partition suit, all the parties are in the same position. Nothing

stopped the first defendant from taking a stand that the suit properties were

the separate properties of Arunachalathevar and therefore, when Ramasamy

Thevar inherited the suit properties, they were his absolute properties.

No such stand was taken in the written statement filed by the defendants.

Any pleading will have to be construed as a whole. The thrust of the

plaintiffs' contention was that the properties are ancestral properties. https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.466 of 2014

7. Hence, in view of the failure on the part of the defendants to take a

specific stand that the suit properties are the separate properties of

Arunachalathevar and in view of the specific admission made by Ramasamy

Thevar in Ex.A4-settlement deed that he has been enjoying the property as

an ancestral property, I have no hesitation to come to the conclusion that

when Ramasamy Thevar inherited the suit items from his father, he took it

in his capacity as a sole surviving coparcener. Of-course, Ramasamy

Thevar did not have any son. He had only three daughters. But in the

plaint, it had been specifically pleaded that all the three daughters got

married only from the year 1991 onwards. In the written statement, there is

no denial that any of the daughters got married earlier in point of time.

Even though Central Amendment Act may not really apply, Tamil Nadu Act

1 of 1990 will clearly apply. Hence, I have no hesitation to come to the

conclusion that all the three daughters became coparceners along with

Ramasamy Thevar. It is true that during his life time, Ramasamy Thevar

had alienated some properties. Atleast one property was sold in November

1996 under Ex.B4. There is sufficient internal evidence in Ex.B4 to show

that the property sold thereunder was not a coparcenary property. That is

why, the plaintiffs did not include all the properties. Likewise, daughters

became coparceners only in view of Tamilnadu Act 1 of 1990. Prior https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.466 of 2014

alienations if had been made by Ramasamy Thevar cannot be affected. The

suit cannot be said to be bad for partial partition. Once I hold that the suit

items are ancestral properties, Ex.A4 cannot affect the share of the

plaintiffs. Ramasamy Thevar had 1/4th share along with his three daughters

in the suit properties.

8. Therefore, I answer the first substantial question of law in favour

of the appellants. In this view of the matter, the judgment and decree

passed by the Courts below are set aside. Preliminary decree is granted

allotting 1/4th share in favour of each of the plaintiffs in respect of the suit

properties. Since the second defendant mother cannot be left high and dry,

she will be entitled to maintenance and corresponding charge on the shares

that will be eventually allotted in favour of the parties herein. The second

appeal is partly allowed. No costs.

07.09.2021

Internet : Yes/No Index : Yes/No rmi

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

S.A.(MD)No.466 of 2014

To

1.The Sub Court, Sankarankoil.

2.The Additional District Munsif Court at Sankarankoil.

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

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

S.A.(MD)No.466 of 2014

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A(MD)No.466 of 2014 and M.P.(MD)No.1 of 2014

07.09.2021

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