Madras High Court
Kantham vs Saraswathi on 27 September, 2021
S.A.(MD)No.642 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.642 of 2006
1.Kantham
2.Kala
3.Kannagi
4.Kalyani (died) ... Appellants / Respondents 1 to 4 / Plaintiffs
5.Vijay
6.Iswarya ... Appellants
(A5 & A6 are brought on record as LRs of the deceased A4
vide order dated 24.01.2020 made in C.M.P.(MD)Nos.378, 379 and
380 of 2020)
-Vs-
1.Saraswathi
2.Elango
3.Sivagami
4.Poonkodi
5.Tamizharasi ... Respondents 1 to 5 / Appellants / Defendants 3 to 7
6.Subramani (Died)
7.Kamaraj ... Respondents 6 & 7 / Respondents 5 & 6 / Defendants 1 & 2
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S.A.(MD)No.642 of 2006
8.Meenakshi
9.Ajith
10.Ammu
11.Vadivel
12.Ponmani
13.Maragatham
(Respondents 8 to 13 are brought on record as LRs of the deceased
6th respondent vide Court order dated 23.08.2021 made in
C.M.P.(MD)Nos.6064 & 6066 of 2021) ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree made in A.S.No.36 of 2005, dated
17.10.2005 on the file of the Principal District Judge, Tiruchirappalli
reversing the decree and judgment made in O.S.No.388 of 1997, dated
08.11.2004 on the file of the Principal Subordinate Judge, Tiruchirapalli.
For Appellants : Mr.Raguvaran Gopalan
for Mr.K.Prabhakar
For R1 to R5 : Mr.M.P.Senthil
For R7 : Mr.P.Sivachandran
For R12 : no appearance
JUDGMENT
The plaintiffs in O.S.No.388 of 1997 on the file of the Principal Sub
Court, Tiruchirappalli are the appellants in this second appeal. The
appellants 1 to 3 herein along with the deceased fourth appellant filed the
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S.A.(MD)No.642 of 2006
said suit for partitioning and allotting 4/15th share in the suit schedule
property. The genealogy is as under:-
Chinnathambi
Lachuumayee Neelambal Sannasi Kantham(P1) Palaniyandi Saraswathi(D3) Subramani(D1)
Kamaraj (D2) Kala (P2) Kannagi(P3) Kalyani(P4)
Elango (D4) Sivagami(D5) Poongodi (D6) Tamizharasi(D7)
2. The suit items 1 and 2 stood in the name of Chinnathambi
Muthiriyar. There is no dispute that the first item was an ancestral property
and that the second item was the self acquired property of Chinnathambi
Muthiriyar. The case of the plaintiffs is that during his life time,
Chinnathambi Muthiriyar executed Ex.A2 dated 27.10.1981 bequeathing
both the items in favour of his sons in equal shares. Of-course, the
plaintiffs putforth a claim that the suit first item was also the self acquired
property of Chinnathambi Muthiriyar. The case of the plaintiffs was that
the Sannasi's family was residing in the suit first item and that Planiyandi's
son Elango was attempting to interfere with their possession by claiming
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S.A.(MD)No.642 of 2006
that the suit first item has been allotted to him in a partition. That
necessitated filing of the suit. Palaniyandi's son Elango who was shown as
the fourth defendant filed written statement controverting the plaint
averments. According to him, the first item was an ancestral property, while
the second item was the self acquired property of his grandfather. While
admitting the execution of the Will dated 27.10.1981, he claimed that
Chinnathambi Muthiriyar could not have dealt with the ancestral property
in his testament. Be that as it may, during the life time of Chinnathambi
Muthiriyar, a family arrangement was entered into on 16.03.1991. All the
three sons herein namely Sannasi, Palaniyandi and Subramani were parties
to the said arrangement and it took place in the presence of Chinnathambi
Muthiriyar. Pursuant to the said arrangement, the first item of the suit
property was allotted to Palaniyandi, while the second item was allotted to
Sannasi and Subramani. It was also later given effect to and a family
partition deed was entered on 21.05.1997. As per the said partition, the first
item was allotted to the branch of Palaniyandi, while the second item was
allotted to the other two branches represented by the third son Subramani
and the second defendant Kamaraj who was the son of Sannasi. Since the
properties had already been divided, the present suit was not maintainable.
That was the stand of the fourth defendant. Based on the rival pleadings,
the trial court framed the necessary issues. The first plaintiff examined
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S.A.(MD)No.642 of 2006
herself as P.W.1. Krishnasamy who was one of the attesting witness of the
Will Ex.A2 dated 27.10.1981 was examined as P.W.2. Ex.A1 to Ex.A5
were marked. Subramani examined himself as D.W.3. Elango examined
himself as D.W.1. Kamaraj examined himself as D.W.4. Chozharajan was
examined as D.W.2. Ex.B1 to Ex.B14 were marked. After a consideration
of the evidence on either side, the trial court by judgment and decree dated
08.11.2004 passed preliminary decree as prayed for. Permanent injunction
was also granted. Aggrieved by the same, the aggrieved defendants filed
A.S.No.36 of 2005 before the Principal District Judge, Tiruchirappalli.
Vide judgment and decree dated 17.10.2005, the decision of the trial court
was reversed and the suit came to be dismissed. Challenging the same, this
second appeal was filed. It was admitted on the following substantial
questions of law:-
(1) Whether the first appellate court is right in coming to a conclusion
that Ex.A2 dated 16.03.1991 is only an agreement to partition the properties
between Sannasi, Palaniyandi and Subramanian when the defendants
contended that Ex.B2 is a family arrangement and in pursuance of the same,
the defendants have entered into another partition deed dated 21.05.1997
marked as Ex.B4?
(2) Whether the document dated 16.03.1991 between Sannasi,
Palaniyandi and Subramanian is inadmissible in evidence for want of
registration and stamp duty?
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
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S.A.(MD)No.642 of 2006
Court to answer the substantial question of law in favour of the appellant
and restore the decision of the trial court.
4. Per contra, the learned counsel appearing for the contesting
respondents submitted that the suit Will Ex.A2 was superseded and
impliedly cancelled by the family arrangement that took place among the
three male branches. Ex.B2 marked on the side of the defendants would
clearly show that it took place in the presence of Chinnathambi Muthiriyar.
Therefore, it cannot be ignored. It was subsequently formalized by entering
into a partition as evidenced by Ex.B4 dated 21.05.1997. The crux of the
argument of the learned counsel for the contesting respondents is that
during the relevant time, the daughters of Chinnathambi Muthiriyar did not
have any right or share in the suit properties. If both the items were
considered as ancestral properties, then, only a male member of the
coparcenary would have any right or share therein. If the suit second item
was considered as self acquired property, still it would devolve only in
terms of the suit Will and again the daughters will not have any right or
share in the said item.
5.Looked at from angle, during the relevant time, the daughters did
not have any right or share in the suit properties. All the three sons of
Chinnathambi Muthiriyar were parties to Ex.B2. Sannasi passed away in
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S.A.(MD)No.642 of 2006
the year 1992 itself, While Palaniyandi passed away in the year 1995.
Therefore, Kamaraj was the only male member to represent Sannasi Branch.
Likewise, Elango was the only male member representing Palaniyandi
Branch. Subramani was of-course alive. That is why, Kamaraj, Subramani
and Elango were parties to Ex.B4 partition deed dated 21.05.1997. Elango
had already paid owelty amounts. Since a valid partition had already been
enforced, it cannot be re-opened. He also would point out that daughters
become members of the coparcenary, if they remained unmarried when the
Tamilnadu Amendment Act 1 of 1990 came into force. Admittedly, When
Tamil Nadu Amendment Act 1 of 1990 came into force, the two daughters
of Chinnathambi Muthiriyar had already got married. Hence, Tamilnadu
Amendment Act 1 of 1990 will not have any application to the present case.
Like wise, amendment made to Section 6 of the Hindu Succession Act,
1956 by the Central Act will also not confer any right on the daughters of
Chinnathambi Muthiriyar, because by then, the properties had already been
dealt with. The amendment made to Section 6 of the Hindu Succession Act,
1956 by the Central Act admittedly will not have any implication in respect
of the transaction that had already taken place. The first appellate court
had given solid and convincing reasons for non-suiting the plaintiffs. He
called upon this Court to adopt the said reasoning and answer the
substantial questions of law against the appellants and dismiss the second
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S.A.(MD)No.642 of 2006
appeal.
6. I carefully considered the rival contentions and went through the
evidence on record. It is obvious that the suit first item is an ancestral
property, while the suit second item is the self acquired property of
Chinnathambi Muthiriyar. From the genealogy, one can notice that he was
blessed with three sons namely Sannasi, Palaniyandi and Subramani and
two daughters namely Lachuumayee and Neelambal. There is again no
dispute that Chinnathambi Muthiriyar executed Ex.A2-Will dated
27.10.1981 bequeathing both the properties in favour of his three sons in
three equal shares. Ex.A2 was duly proved by examining the second
attesting witness namely P.Krishnasamy. The fourth defendant also
admitted the execution of the said Will. Therefore, I have no dispute
whatsoever in my mind that the suit Will even though not registered had
been proved in accordance with law.
7. The first question that arises for my consideration is whether the
suit Will can be said to have been superseded by Ex.B2 dated 16.03.1991.
Ex.B2 is styled as consent deed (rk;kj gj;jpuk;). It was executed only
among the three sons of Chinnathambi Muthiriyar. Of-course, it reads that
arrangement took place in the presence of Chinnathambi Muthiriyar and his
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S.A.(MD)No.642 of 2006
thumb impression is also affixed in the said consent deed. The consent
deed is not clearly worded. But from a overall reading, one can conclude
that the Sannasi first son and Subramani third son were to jointly execute a
document for conveying the suit first item in favour of Palaniyandi or his
legal heirs. Likewise, Palaniyandi second son consented for Sannasi and
Subramani to take the second item. Sannasi and Subramani received a sum
of Rs.5,000/- each towards owelty. The balance amount of Rs.15,000/- was
to be paid as balance owelty. Quite a few questions arise regarding Ex.B2
dated 16.03.1991 such as Whether Ex.B2 can be said to have been
superseded or revoked Ex.A2 Will dated 27.10.1981? or Whether Ex.B2 is
admissible in evidence? or Whether Ex.B2 was acted upon?.
8. Ex.A2, as already pointed out, had been proved in the manner
known to law. The requirement set out under Section 68 of the Indian
Evidence Act had been fulfilled by examining P.W.2 Krishnasamy. The
fourth defendant Elango also admits the execution of Ex.A2. The only
question is whether Ex.A2 can be said to have been superseded by Ex.B2.
This is for more than one reason. Even when Ex.A2 was executed,
Krishnasamy was aged around 80 years. Therefore, it is safe to conclude
that when B2 was executed, Chinnathambi Muthiriyar was aged around 90
years. In Ex.B2, there is no reference to the suit Will (Ex.A2). It merely
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S.A.(MD)No.642 of 2006
states that Ex.B2 was entered into in the presence of Chinnathambi
Muthiriyar. There is nothing on record to show that Chinnathambi
Muthiriyar by putting his thumb impression on Ex.B2 had revoked the
earlier Will. If that was really revoked, there would have been recitals to
that effect therein. Such recitals are absent. There is nothing to show that
Chinnathambi Muthiriyar had revoked the earlier Will. Therefore, I come
to the conclusion that Ex.B2 did not supersede or revoke Ex.A2 Will. As I
have already indicated, Ex.B2 is only styled as 'consent deed'.
Consequential steps were to be taken pursuant to Ex.B2. Ex.B2 cannot
have any legal effect because as on 16.03.1991, the sons did not have any
right or interest in the suit second item. In Ex.B4 partition deed dated
21.05.1997, there is absolutely no reference whatsoever to Ex.B2. If Ex.B2
is considered as an agreement or as a record of an antecedent evident, then,
it did not require registration. If as claimed by the contesting fourth
defendant, Ex.B2 by itself confers certain rights, then it obviously required
registration. Since it has not been registered, it could not have been
admitted in evidence. Merely because, owelty was paid by Elango vide
Ex.B3 and Ex.B5, that would not by itself confer any right. The payment of
owelty can only be a consequential action. If the primary document itself
does not convey any right, mere payment of owelty will not confer any right
or advance the case of the contesting fourth defendant. Both the substantial
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S.A.(MD)No.642 of 2006
questions of law are answered in favour of the appellant. The next question
that arises for consideration is whether Ex.A2 can be sustained as a whole.
The answer has to be necessarily in the negative. Since the suit first item
was an ancestral property, Chinnathambi Muthiriyar could not have
executed any Will in respect of the same. Therefore, Ex.A2-Will is
sustained only in respect of the suit item No.2. Since the suit first item is an
ancestral property, it has to devolve in equal shares on all the five branches
of Chinnathambi Muthiriyar.
9. Of-course, in the suit in question, the daughters of Chinnathambi
Muthiriyar had not been arrayed as parties. One does not know as to
whether they are interested in the suit first item also. Before me, the branch
of the first son Sannasi and third son Subrmani are present. Of-course, the
contesting fourth defendant Elango is also before me as the second
respondent. The impugned judgment of the first appellate court suffers
from an internal contradiction. The left out daughters Lachuumayee and
Neelambal would have got right only by virtue of the amendment made by
Central Act in the year 2005. The said amendment clearly states that if any
partition had already taken place in respect of the ancestral property, that
cannot be reopened by virtue of the amendment. There can be no dispute
that the properties had already been partitioned between the two branches
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S.A.(MD)No.642 of 2006
under Ex.B4 dated 21.05.1997. The two daughters Lachuumayee and
Neelambal did not evince interest for all these years. In view of Ex.B4,
Lachuumayee and Neelambal will not get any right in suit item No.1.
10. I sustain Ex.B4 only for the purpose of holding that Lachuumayee
and Neelambal will not get any right under the amendment. However, in
view of the foregoing discussion, Ex.B4 cannot be put against the present
appellants. This is more for the reason, none of the appellants were parties
to Ex.B4. Chinnathambi Muthiriyar passed away in the year 1994. The
rights of the two daughters namely Lachuumayee and Neelambal can be
looked at from another angle also. Ex.A2 covers not only the self acquired
property of Chinnathambi Muthiriyar but also the ancestral property. Thus,
Ex.A2 had not been questioned by both the daughters. Ex.A2 came into
force in the year 1994 following the demise of Chinnathambi Muthiriyar.
By the time Central Amendment Act came into force, the formal division
had already taken place on 21.05.1997 vide Ex.B4.
11. Therefore, looked at from any angle, the left out daughters namely
Lachuumayee and Neelambal will not have any right in the suit items. The
impugned judgment and decree are set aside and the preliminary decree is
passed as follows:-
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S.A.(MD)No.642 of 2006
(I)The suit properties will be divided among the male branches
namely that of Sannasi, Palaniyandi and Subramani.
(II)Each of the aforesaid branches will take 1/3rd share in both the
items. The parties are entitled to file final decree petition for dividing the
suit items 1 and 2 by metes and bounds.
(II)It has been established that Kamaraj/D2 has received a sum of
Rs.30,000/- from Elango on 23.05.1997. Kamaraj is directed to return the
same to Thiru.Elango/D4 with interest at the rate of 6% per annum. In the
event of failure to do so, equities will be adjusted accordingly in the final
decree proceedings.
12. The second appeal is allowed. No costs.
27.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Principal District Judge, Tiruchirappalli.
2.The Principal Subordinate Judge, Tiruchirapalli.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.642 of 2006
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.642 of 2005
27.09.2021
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