Madras High Court
Saju Kumar vs Kanakam Nadar on 7 September, 2021
1 A.S.(MD)NO.226 OF 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.226 of 2019 and
C.M.P.(MD)No.12140 of 2019
Saju Kumar ... Appellant / 5th Plaintiff
Vs.
Palammal (died)
1. Kanakam Nadar
2. Packianathan
3. Pathrose
4. Rajamma
5. Vasantha Kumari
6. Ronickom
... Respondents 1 to 6 / Defendants 2 to 7
Kanakabai @ Kanakam (died)
7. Dennis Jeyaraj
8. Jones
9. Rabi
(Memo in USR No.3194 dated 03.02.2020(filed on 07.02.2020)
is recorded, as the appellant has given up the eighth respondent
vide Order dated 11.02.2021)
... Respondents 7 to 9 / Plaintiffs 2 to 4
Prayer: Appeal suit filed under Section 96 of C.P.C.,
against the judgment and decree dated 07.02.2019 on the file
of the Additional District and Sessions Judge(Fast Track
Court), Nagercoil, made in O.S.No.141 of 2009 in so far as the
appellant in concerned.
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1/16
2 A.S.(MD)NO.226 OF 2019
For Appellant : Mr.K.N.Thampi
For R-1 to R-6 : Mr.R.Vijayakumar,
for Mr.M.Ashok Padmaraj.
For R-7 & R-9 : Mr.G.Ramanathan
***
JUDGMENT
The fifth plaintiff in O.S.No.141 of 2009 on the file of
the Additional District and Sessions Judge/Fast Track Court,
Nagercoil, is the appellant in this first appeal.
2. The suit was originally filed by the appellant's
mother, namely, Kanakabai @ Kanakam for recovering a sum
of Rs.16,00,000/- with interest from the defendants. During
the pendency of the suit, the appellant's mother passed away
and her sons including the appellant were brought on record.
The plaint averments are as under:-
The appellant's sister, namely, Angel Leela Selvi got
married to one Lucas in the year 1988. Two daughters,
namely, Kumari Angela Vinnarasi and Kumari Ezhilarasi were
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3 A.S.(MD)NO.226 OF 2019
born. Angel Leela Selvi was employed as a teacher. Lucas was
also employed in Government service. The couple purchased
four parcels of land in Ezhudesam Village and put up a house
on one of the plots. They had also purchased a piece of land in
Villupuram. The entire family died in a tragic accident on
29.05.2005. Since the family had left behind movable as well
as immovable properties, issue arose as to their division. On
account of intervention by some elders, a memorandum of
agreement was entered into between both the parties on
10.09.2005. It was also reduced into writing. It must be
mentioned here that the husband's side was represented by
his mother Palammal and his brothers Kanakam Nadar,
Packianathan and Pathrose. The wife side was represented by
her mother Kanakabai @ Kanakam and her brothers Dennis
Jeyaraj, Jones, Rabi and Saju Kumar(appellant herein). The
properties located at Ezhudesam Village have been set out in
suit ' A ' schedule, while Villupuram property has been set out
in suit ' B ' schedule. Though the couple are said to have
acquired one other item in Chennai and the same was also
described in the suit ' C ' schedule, it could not be identified.
There is also no prayer in respect of the suit ' C ' schedule. It
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4 A.S.(MD)NO.226 OF 2019
is beyond dispute that the memorandum of agreement dated
10.09.2005(Ex.A.10) covers movable as well as immovable
properties of the deceased couple. As per the terms thereof,
the properties situated in Ezhudesam Village are to be taken
by the husband's side, namely, the defendants herein.
Ezhudesam properties were to be valued and the wife's side
was to be paid ½ share therein. In other words, the husband's
side was to take the property, while the wife's side was to take
half of the money value. Since both the parties did not evince
any interest in retaining Villupuram property, it was to be sold
and the sale proceeds was to be divided into equal shares
between the two sides. Likewise the fixed deposits and the
other insurance amounts were to be divided equally between
them. Based on the said memorandum of agreement,
Kanakabai @ Kanakam filed S.O.P.No.23 of 2005 before the
Sub Court, Kuzhithurai in respect of the bank deposits and the
insurance amounts. Likewise, the husband's side filed
S.O.P.No.7 of 2006 before the very same Court for the same
relief. It is interesting to note that both the parties swore by
Ex.A.10 dated 10.09.2005. Purporting to act in terms thereof,
both S.O.Ps. were ordered on 28.11.2006. Even though the
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5 A.S.(MD)NO.226 OF 2019
sisters of Lucas were not made parties to Ex.A.10, division of
the insurance amounts and bank deposits appears to have
concluded smoothly and I am clearly of the view that they
need not be reopened at this point of time.
3. The parties however could not arrive at a
consensus as regards Ezhudesam properties and Villupuram
property. The wife's side felt that they ought to be paid the
monetary value in terms of Ex.A.10 dated 10.09.2005.
Kanakabai @ Kanakam issued Ex.A.11 notice dated
27.07.2009. The demand set out in the notice was not
complied with by the defendants. She therefore filed
O.S.No.141 of 2009. As already mentioned, she passed away
shortly thereafter and her sons came on record. The appellant
herein examined himself as P.W.1. Shri.Ananthalal at whose
instance Ex.A.10 was finalised was examined as P.W.2. One
Anantha Pandi was examined as P.W.3. Ex.A.1 to Ex.A.29 were
marked. The fourth defendant Pathrose examined himself as
D.W.1 and Ex.B.1 to Ex.B.16 were marked. Ex.X.1 to Ex.X.9
were also marked. After a consideration of the evidence on
record, the learned trial Judge by judgment and decree dated
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6 A.S.(MD)NO.226 OF 2019
07.02.2019 dismissed the suit. Aggrieved by the same, one of
the plaintiffs filed this appeal.
4. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to set aside the impugned
judgment and decree passed by the trial Court and decree the
suit as prayed for.
5. The learned counsel appearing for Respondents 7
and 9 who are none other than the brothers of the appellant
submitted that they are sailing with the appellant. However
the whereabouts of the eighth respondent are not known and
a memo has been filed to that effect.
6. Per contra the learned counsel appearing for the
contesting defendants submitted that the suit has been
improperly framed. He submitted that the trial Court had
correctly approached the issues and that the impugned
judgment and decree do not warrant any interference. He
pointed out that the suit has been filed for recovery of money;
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7 A.S.(MD)NO.226 OF 2019
the suit had suffered a wholesale dismissal. Though the
plaintiffs are four in number, only one of them filed the
appeal. Therefore, respondents 7 to 9 cannot be granted any
relief. He would state that at best, the appellant can maintain
the appeal to the extent of 1/4th of the original claim. He also
pointed out that the suit appears to be barred by limitation.
He emphasized the fact that in as much as the sisters of Lucas
were not made parties to Ex.A.10, they cannot be bound by
the terms thereof. He added that Ex.A.10 which creates rights
ought to have been registered and in as much as it has not
been registered, it is inadmissible in evidence. He called upon
this Court to confirm the impugned judgment and decree and
dismiss this appeal.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. The points for consideration are as follows:-
a) Whether Ex.A.10 memorandum of
understanding dated 10.09.2005 is legally
enforceable?
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8 A.S.(MD)NO.226 OF 2019
b) Whether the plaintiffs are entitled to
relief in respect of ' A ' and ' B ' schedule
properties?
9. It is well settled that the true nature of a document
has to be ascertained by taking into account all the attendant
circumstances. Even though Ex.A.10 has been styled as an
agreement, on a careful perusal of its terms, one can note that
it embodies the settlement that was already arrived at
between the parties. Ex.A.10 is an evidential document and
not an operative document. In other words, it is a record of
event that had already taken place. P.W.2 Shri.S.P.Anathalal
appears to be a village elder and through his intervention,
both the families were brought to the negotiating table and
the division of the assets left behind by Lucas and Angel Leela
Selvi had been finalised. Since Ex.A.10 records a settlement
already arrived at, it does not require registration. It is true
that the sisters of the deceased Lucas were not made parties.
But the fact remains that till date, they had not chosen to
challenge it. In S.O.P.No.23 of 2005 filed by the wife's side as
well as in S.O.P.No.7 of 2006 filed by the husband's side,
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9 A.S.(MD)NO.226 OF 2019
Ex.A.10 was specifically relied upon. Though the S.O.Ps. were
not formally adjudicated and were ordered based on the
endorsements made by the parties, the fact remains that
Ex.A.10 clearly loomed large in the minds of the parties as
well as the Court. In the present suit, the plaintiffs have
rightly arrayed all the legal heirs of the deceased Lucas that
included his mother, brothers and sisters. It is pertinent to
point out that the sisters though filed a separate written
statement sailed with their brothers. Ex.A.10 was not executed
under the coercive circumstances. If really, defendants 1 to 4
had been pressurised to sign Ex.A.10, they would have
definitely lodged a complaint immediately after its execution.
No such complaint was ever lodged. On the other hand, in
S.O.P.No.7 of 2006 filed by defendants 1 to 4, in paragraph
No.15 and 16 the following averments were made:-
“15. So far as the immovable properties
of Late Lucas is concerned, there was a
compromise among the petitioners and the
respondents on the mediation of one Thiru.
S.P.Anand Lal, Lal Cottage, Kuzhithurai. An
agreement was entered into that effect on
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10 A.S.(MD)NO.226 OF 2019
10.09.2005. As per the terms of the agreement,
the petitioners have consented to share the
immovable properties of Late Lucas on a
humanitarian consideration and also for an
amicable settlement. In fact and also in law the
petitioners are the only heirs to the movable
assets as well as to the immovable assets of Late
Lucas. However on the mediation of the well
wishers the present petitioners have accepted
the agreement and all the parties have signed in
the agreement.
16. As per the agreement dated
10.09.2005 the petitioners are entitled to get
entire building which is situated in R.S.No.
139/18 and 19 of Ezhudesam Village. The
respondents are only entitled to ½ of the value of
the superstructure as seen by the four persons.
Since the property comprised in R.S.No.139/18
and 19 are the family properties of Late Lucas,
the entire land is allotted to the petitioners. So
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11 A.S.(MD)NO.226 OF 2019
far as the property comprised in R.S.No.139/7
measuring 133/4 cents in Ezhudesam Village is
concerned, the petitioners are entitled to get
entire property and the respondents are entitled
to get ½ share of the land value. So far as the
property at Villupuram comprised in R.S.No.
167/4D and 167/4E and the building situate
therein, the same has to be sold to third parties
and the sale proceeds have to be shared both by
the petitioners and the respondents. Similarly
the property at Veppampatti, Chennai, is also to
be sold to third parties and the sale proceeds
have to be shared equally by the petitioners and
respondents. Besides this, with regard to the
benefits of Angela Vinnarasi and Ezhilarasi are
concerned, it is agreed that both the petitioners
and the respondents have to be shared equally.
The respondents have also signed and acted
upon the agreement dated 10.09.2005. If the
respondents dispute about the compromise and
settlement dated 10.09.2005, the petitioners
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12 A.S.(MD)NO.226 OF 2019
reserve their right to file a comprehensive civil
suit in respect of the immovable properties of
Late Lucas as provided under law in due
course. “
10. In response to the S.O.P. filed by the wife's side
in S.O.P.No.23 of 2005, the voluntary nature of Ex.A.10 was
accepted and conceded. It is therefore too late in the day to
impeach the genuineness of Ex.A.10. The only ground on
which its enforceability as against defendants 5 and 6 can be
contested is that they were not parties.
11. Be that as it may, as rightly pointed out by the
learned counsel on either side, the wife's side and the
husband's side will have to take the estate in equal shares.
The parties are Christians. The entire family had perished in
the accident at the same time. Therefore, applying the
common law presumption, the youngest should be deemed to
have died last. Kumari Ezhilarasi was the youngest heir of the
parties herein. Section 48 of the Indian Succession Act will
come into play.
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13 A.S.(MD)NO.226 OF 2019
“ 48. Where intestate has left
neither lineal descendant, nor parent, nor
brother, nor sister.— Where the intestate has
left neither lineal descendant, nor parent, nor
brother, nor sister, his property shall be divided
equally among those of his relatives who are in
the nearest degree of kindred to him. ”
12. I therefore hold that even if Ex.A.10 is ignored,
still the plaintiffs will be entitled to ½ share in the suit ' A '
schedule as well as the suit ' B ' schedule. The plaintiffs are
co-owners in respect of both the properties along with the
defendants. Even though they had ill-advisedly laid a money
claim, in the interest of the justice, I deem it fit and
appropriate to grant a preliminary decree for partition.
13. In this view of the matter, the judgment and
decree dated 07.02.2019 passed in O.S.No.141 of 2009 on the
file of the Additional District and Sessions Court/Fast Track
Court, Nagercoil, is set aside. Preliminary decree is passed
granting ½ share for the plaintiffs in the suit ' B ' schedule,
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while defendants 2 to 7 will be entitled to remaining ½ share
in the suit ' B ' schedule. Since Ex.A.10 had been acted upon
already and the plaintiffs have conceded that the suit ' A '
schedule properties can be taken by the defendants and they
only wanted half of its monetary value thereof, the defendants
are directed to pay a sum of Rs.8,00,000/-(Rupees Eight Lakhs
only) to the plaintiffs with interest @ 6% p.a. from the date of
filing of the suit till the date of payment. If the defendants are
either unable to pay the said amount or not willing to pay the
said amount, the plaintiffs will then be entitled to claim ½
share in the suit ' A ' schedule also. The defendants are
granted six months time to make the aforesaid payment to the
plaintiffs. If at the end of the six months period, the
defendants are not able to make payment, there will be a
preliminary decree in favour of the plaintiffs granting them ½
share in the suit ' A ' schedule also. The parties have to pay
Court fee towards their shares.
14. This appeal suit is allowed on these terms.
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15. It is made clear that as and when the suit ' C '
schedule property is located, it is open to the parties to seek
appropriate relief in accordance with law. No costs.
Consequently, connected miscellaneous petition is closed.
07.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
2. Web copy of this order shall be
uploaded on 16.09.2021.
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16 A.S.(MD)NO.226 OF 2019
Note :Web copy of this order
shall be uploaded on
16.09.2021.
G.R.SWAMINATHAN,J.
PMU
To:
1. The Additional District and Sessions Judge
(Fast Track Court), Nagercoil.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
A.S.(MD)No.226 of 2019
07.09.2021
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