Madras High Court
Arthanari vs Venkatachalam on 8 September, 2021
SA NO.213 OF 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SECOND APPEAL NO.213 OF 2015
Arthanari ... Appellant
Vs.
Venkatachalam ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 17.11.2014 in A.S.No.6 of
2014 on the file of Subordinate Court, Mettur, reversing the judgment and
decree dated 23.01.2014 in O.S.No.369 of 2010 on the file of District
Munsif Court, Mettur.
For Appellant : Mr.R.Subramanian
For Respondent : Mr.G.Surya Narayanan
JUDGMENT
Defendant is the appellant in this Second Appeal.
2. Aggrieved over the reversal of the judgment and decree
passed in O.S.No.369 of 2010 dated 23.01.2014 on the file of District
Munsif Court, Mettur, by the First Appellate Court in its judgment and
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SA NO.213 OF 2015
decree passed in A.S.No.6 of 2014 dated 17.11.2014, the defendant has
preferred the above Second Appeal.
3. Plaintiff filed a suit for partition. The plaintiff and defendant
are brothers. According to the plaintiff the suit properties originally
belonged to his grandfather Ramasamy Gounder. After his demise his 6
sons had partitioned the properties and his predeceased fathers share was
given in favour of their mother since the plaintiff and defendant were
minors then. Patta stood in the name of their mother and continued to be in
joint possession of the parties. Their mother died on 06.03.2010. After her
demise plaintiff demanded partition during June 2010. But the defendant
had denied it on the pretext that their mother gifted the property by way of
registered settlement deed dated 12.12.2008 in his favour. Their mother
has no legal right to settle the ancestral property and taking advantage of
the illiteracy of their mother, the defendant has fraudulently created the
settlement deed. Hence the settlement executed by their mother over the
ancestral property is not legally sustainable and it shall be set aside and the
suit properties shall be divided by metes and bounds and half share shall
be allotted to each.
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SA NO.213 OF 2015
4. The defendant denied the averments made in the plaint.
Though it is admitted that the properties were given in the name of their
mother, due to the demise of their father, the plaintiff suppressed material
facts. Their mother educated her sons, the parties to the suit with so much
of struggles. For educating the plaintiff she sold 70 cents of land in
S.No.170/2B out of total extent of 3.50 Acres in favour of one Anai
Gounder. After completing his studies, the plaintiff joined as a teacher in
Panchayat Union Elementary School, Peria Soragai. On 01.10.1973 he
was confirmed and retired from service on 31.03.2008. But during the
entire period, the plaintiff did not take care of their mother. On the other
hand, the defendant had taken care during her life time. Their after there
was oral partition between the parties by which the plaintiff was allotted
S.No.167/23 in Patta No.1184 measuring an extent of 6 ¾ cents, in whch
he has constructed a terraced house and a tiled house worth about 5 laksh
and residing there. Door No of the house is 5/257 and patta got transferred
to plaintiff's name and he is enjoying the same by paying tax apart from
properties in S.No.161/8c an extent of 0.41 cents; in S.No.167/23 an
extent of 0.41 cents; in S.No.167/23 an extent of 0.22 ¼ allotted in his
favour. Later in respect of the lands which were in possession of the
defendant is
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SA NO.213 OF 2015
S.No.167/5 - 0.5 cents
S.No.167/12 – 0.10 cents
S.No.167/16 – 0.17 cents
S.No.167/21 – 0.81/2 cents
S.No.166/1C – 0.62 cents, their mother executed a settlement
deed registered as Door No.5198 of 2008 dated 12.12.2008 in his favour.
She died on 06.03.2010. After execution of the settlement, the plaintiff did
not ask for partition between 2008-2010, supporting facts filed the suit on
the misleading ground the properties are in joint possession.
5. Their mother has right to execute the settlement deed. The
properties were allotted to the mother and the defendant were settled by
the mother, to which she has legal right. Having failed to maintain their
mother, the plaintiff has no moral right in asking for partition in her
properties. The allegation that the settlement deed was fraudulent is
deemed. Since, the properties were already partitioned, the plaintiff has no
right to partition the property again. There is no cause of action and the
valuation is wrong. The suit is bad for partial partition as it does not reveal
the properties in Patta No.1184 and 1730.Hence the plaintiff is not entitled
to any relief.
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SA NO.213 OF 2015
6. The Trial Court framed appropriate issues and dismissed the
suit after trial. On appeal the judgment and decree of the Trial Court was
reversed and allowed the appeal.
7. Against which the defendant preferred the above Second
Appeal and it was admitted on 27.04.2015 on the following questions of
law:
“ (a) Whether the Lower Appellate Court
is wrong in holding that the suit properties are
joint family properties and was the mother entitled
to execute a settlement deed?
(b) Whether the Lower Appellate Court
misconstrued Exs.B1 and B2 which resulted in
perverse findings?”
8. Heard the submissions and perused the evidence.
9. The core issue looms large for decision is as to whether the
suit properties are ancestral properties and as to whether the mother is
entitled to deal with the properties.
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SA NO.213 OF 2015
10. The pleadings are made that the properties are ancestral
properties derived through the grandfather of the parties. The factum that
the title to the property is traced to the grandfather Ramasamy Gounder is
admitted by the defendant also. A plan has been raised during oral
evidence that the property was purchased by the mother of the properties
vide Ex.B1- a sale deed dated 12.03.1966 and as such it is individual
property. Further the property were already partitioned between the parties
vide Ex.B3-partition deed. But it is relevant to note that the defendant has
pleaded oral partition in the written statement. Thus the Ex.B1 and Ex.B3
were not pleaded and no defense was taken on the basis of the above said
documents.
11. The suit has been filed for partition for the properties in
Patta No.893
1. S.No.167/5 - 0.02.00 Ha
2. S.No.167/12 – 0.4.00 Ha
3. S.No.167/16 – 0.07.00 Ha
4. S.No.67/21 - 0.03.50 Ha
5. S.No.168/1c – 0.41.50 Ha
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SA NO.213 OF 2015
12. Among these properties several number 1,2,4 are the
properties allotted to the life estate of their mother. Ex.B3 recites that the
properties allotted to the mother of the parties shall be divided equally
after her demise on the advice of common mediators. A further reading of
Ex.B1 and B3 specifically recites that the properties are ancestral in
nature. From the documentary evidence, eventhough there were no
pleadings, it is noted that the source of title derived through the father of
parties from their grandfather.
13. In so far as the oral evidence is concerned, the defendant as
D.W.1 would depose that the grandfather secured loan by executing sale
deed and the properties were redeemed by all the six sons in their
individual names. The share of the father of the parties was purchased in
the name of the mother as the father of the parties expired by that time. It
is further admitted that the properties were mentioned as ancestral
properties in Ex.B1 as well as in Ex.B3.
14. To sum up the defendant in his written statement admitted
that the plea that it is an ancestral property derived from the grandfather
Ramasamy Gounder. Though the defendant has not pleaded about the
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SA NO.213 OF 2015
Ex.B1 and B3 and alleged oral partition, it proved the said documents the
properties are ancestral properties. Particularly Ex.B1 said to be the sale
deed in favour of the mother, the evidence of the defendant as D.W.1
would clarify the fact that the sale deed Ex.B1 was executed in the name
of the mother due to the death of the father of the parties.
15. From the above facts, it can be easily inferred that instead of
registering the sale in the name of the father, it was registered in the name
of the mother, since he was no more. Otherwise it would have been
registered in the name of the father of the parties. Thus the properties shall
be construed as share allotted to the father in partition between the sons of
Ramasamy Gounder, the brothers. Secondly it can be inferred that the
properties mentioned in Ex.B1 were not purchased out of the own funds of
the mother of the parties, but it has the efforts of members of the joint
family.
16. The Trial Court proceeded on the basis that the property was
purchased by the mother, through sale deed marked as Ex.B1 and
therefore it is her individual property and she has a right to settle the
property as per her wishes. Further it is found that as per Sec.14 of Hindu
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SA NO.213 OF 2015
Succession Act, the estate of a female Hindu becomes an absolute
property. But the provision does not apply to the case on hand. It is not the
property inherited by the mother from her husband, but it is the property
passed on to the share of one of the joint family member through his
widow. Thus it is not the estate of the widow but it is the property of the
co-parceners. Therefore, the finding of the Trial Court is erroneous.
17. The First Appellate Court has rightly concluded as joint
family properties of the parties and hence the mother is not entitled to deal
with the same as her individual properties. Hence the settlement deed
executed by the mother is not binding upon the plaintiff. The questions of
law are answered against the appellant/defendant. The judgment and
decree passed in A.S.No.6 of 2014 on the file of sub Court, Mettur stands
confirmed.
18 .In fine, the Second Appeal stands dismissed. No costs.
08.09.2021
Index : Yes/No
Internet : Yes/No
TK
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SA NO.213 OF 2015
M.GOVINDARAJ, J.
TK
To
1.The Subordinate Judge
Subordinate Court
Mettur.
2.The District Munsif
District Munsif Court
Mettur.
SA NO.213 OF 2015
08.09.2021
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