Madras High Court
Vadhani vs Mangayarkarasi on 5 January, 2022
S.A.No. 1107 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2022
CORAM:
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No. 1107 of 2021
1. Vadhani,
W/o, Selvam
2. Pallipattal
W/o, Thiyagarajan
3. Anandhan
S/o, Selvam ... Appellants
Vs.
1. Mangayarkarasi
W/o, Deivanayaka Kounder
2. Thamizharasi
W/o, Murthi
3. Ezhilarasi,
W/o, Madhivadhanan
4. Narayani,
W/o, R.Govindhan
5. Rajam
1/13
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S.A.No. 1107 of 2021
W/o, Balaram
6. Selvam
S/o, Deivanayaka Kounder
7. Kavitha
W/o, Backiaraj
8. Minor Arulselvam
S/o, Backiaraj
Represented by his Natural Guardian
Kavitha, W/o, Backiyaraj ... Respondents
Prayer:
Second Appeal is filed under Section 100 of C.P.C., against the
judgment and Decree dated 24.09.2021 in A.S.No.15 of 2018 on the file of
the II Additional District Court, Tindivanam, confirming the judgment and
decree dated 14.06.2018 in O.S.No.67 of 2011 on the file of the Principal
Subordinate Court, Tindivanam.
For Appellants : Mr.P.Pandiyaraj
*****
JUDGMENT
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S.A.No. 1107 of 2021
This Second Appeal has been filed against the judgment and decree
dated 24.09.2021 passed in A.S.No.15 of 2018 on the file of the
II Additional District Court, Tindivanam, confirming the judgment and
decree dated 14.06.2018 passed in O.S.No.67 of 2011 on the file of the
Principal Subordinate Court, Tindivanam.
2. The respondents 1 to 5 filed a suit claiming partition of 5/6 share in
the suit properties against the appellants and respondents 6 to 8. The case
of the respondents 1 to 5 is that one Deivanayaka Kounder is the husband of
the first respondent and the father of the respondent 2 to 5 and the 6th
respondent. He was employed in Rodiar Mills, Pudhucherry for about 25
years and he had considerable savings out of his salaried income from
Rodiar Mills, Puducherry. He received substantial lumpsum as retirement
benefits. He purchased properties under different sale deeds on various
dates. The details are as follows:
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S.A.No. 1107 of 2021
i. The first item of the suit property was purchased by him on
05.05.1980 from one Radha.
ii. The second item of the suit property was purchased by him on
27.09.1978 from one Aravamudhu Kounder.
iii. The third item of the suit property was purchased by him on
22.10.1979 from one Krishnan.
iv. The fourth item of the suit property was purchased by him on
02.06.1979 from one Kkannan.
v. The fifth item of the suit property was purchased by him on
19.05.1980 from one Ranganayaki Ammal
All the suit properties are purchased out of his own income. Therefore, the
suit properties are the separate and self acquired properties of Deivanayaka
Kounder and he was in exclusive possession and enjoyment of the suit
properties. He died in the year 1995 leaving behind the respondents 1 to 5
and the 6th respondent as his class I legal heirs. Therefore, all of them are
entitled to 1/6 share in the suit properties. The 6 th respondent is the only son
of the first respondent and brother of the respondents 2 to 5. Therefore, they
permitted the 6th respondent to be in possession and enjoyment of the suit
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S.A.No. 1107 of 2021
properties out of trust and confidence. The respondents used to receive the
produces, whatever delivered by the 6th respondent. It appears that the
respondents 6-8 and the appellants fell apart and developed strained
relationship. The respondents demanded the suit properties to be partitioned
among themselves. The respondents 1 to 5 have come to know that the
appellants filed a collusive and fraudulent suit for partition against the 6 th
respondent. The respondents 1 to 5 are not parties to the suit.
Subsequently, the respondents 1 to 5 met the appellants and requested them
to divide the suit properties into six equal shares and to allot 5/6 share by
metes and bounds and the same was not considered by the appellants.
Therefore, the suit has been filed for the relief for partition.
3. It is seen from the written statement filed by the 6 th respondent/first
defendant that he admitted that the plaintiffs are entitled to 5/6 share as
claimed by them and they also entitled for decree as prayed for. Infact, he
has no objection to pass a preliminary decree declaring the plaintiffs' 5/6
share in the suit properties.
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S.A.No. 1107 of 2021
4. The case of the appellants/defendants 2 to 5 is that the first
appellant/second defendant married the 6th respondent/first defendant 35
years ago. At that time, her husband and father-in-law Deivanayaga
Kounder were working in Anglo French Textiles and in Bharathi Mills. Both
were living under the same roof. The sisters of 6th respondent were married
and left the family and living with their respective husbands. Deivanayaga
Kounder's father was Balakrishnan. He had ancestral properties. They were
acquired and compensation paid to Deivanayagam. Out of the income and
earnings of her husband and father-in-law, the suit properties were
purchased in the name of Deivanayagam, who is the Kartha of the family.
Therefore, the suit properties were treated as joint family properties.
Deivanayaga Kounder retired in the year 1977 and the 6 th respondent
voluntarily retired from service about 7 or 8 years ago. The suit properties
were purchased from the contribution made by the 6th respondent also and
therefore, the suit properties are not the absolute properties of Deivanayaga
Kounder. After the death of Deivanayaga Kounder in 1995, the 6th
respondent totally neglected the family and took to bad ways. Therefore, the
appellants filed the suit against the 6th respondent in O.P.No.64/1995 and it
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S.A.No. 1107 of 2021
was later registered as O.S.No.136 of 1996 on the file of the Subordinate
Judge, Tindivanam for partition and separate possession of their ¾ share in
the suit property. The 6th respondent filed the written statement and
contested the suit. The respondents 1 to 5 were fully aware of the suit filed
by the appellants/defendants and they never claimed any right nor they
attempted to come on record. The suit was decreed and a Preliminary
decree was passed followed by final decree. The respondents 1 to 5's right if
any has been extinguished and they cannot claim any right in the properties
and their claim is barred by limitation. Therefore, the suit is liable to be
dismissed.
5. On the basis of this pleadings, the trial court framed the following
issues:
1. Whether the plaintiffs are entitled to 5/6 share in the suit
properties?
2. Whether the plaintiffs are entitled to get mesne profits?
3. Any other relief?
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S.A.No. 1107 of 2021
6. During the course of trial, P.Ws.1 to 3 were examined and Exs.A1
to A5 were marked on the side of the appellants/plaintiffs. D.Ws.1 to 4 were
examined and Exs.B1 to B10 were marked on the side of the
defendants/respondents 1 to 5.
7. On going through the oral and documentary evidence, the trial
court found that the appellants had failed to prove the owning of ancestral
properties by Deivanayaga Kounder and there was a nucleus to purchase of
the suit properties. On the other hand, it is found from Exs.A1 to A5 that
the suit properties were purchased exclusively by Deivanayaga Kounder
from his income and therefore, the suit properties are his separate and self
acquired properties. In this view of the matter, the trial court decreed the
suit for partition of 5/6 share in favour of the respondents 1 to 5. Aggrieved
against the judgment and decree, appellants/defendants filed the appeal in
A.S.No.15 of 2018. The learned Appellate Judge also on elaborate
consideration of evidence, especially oral evidence of D.Ws.3 and 4, found
that there were no ancestral properties and no income from the ancestral
properties, the suit properties were purchased by Deivanayaga Kounder.
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S.A.No. 1107 of 2021
Therefore, the respondent 1 to 5 are entitled to claim partition in the suit
properties. Thus, the learned Appellate Judge confirmed the judgment and
decree of the trial court and dismissed the appeal. Challenging the said
judgment and decree, the appellants have filed this second appeal.
8. Learned counsel for the appellants submitted that the respondents 2
to 5 were married long back, especially before the introduction of Tamilnadu
Act 1 of 1990. As per section 29(a) of Hindu Succession Act and they are
not entitled to claim any share in the suit properties. Appellants 1 to 3 filed
a suit for partition in O.S.No.136 of 1996 and got a decree. Therefore,
respondents 1 to 5 are not entitled for partition. The judgment of the Courts
below, especially the judgment of first appellate court has to be set aside.
9. Considered the submissions, both the Courts below have held that
the appellants are not entitled claim share in the suit properties. As narrated
above, the appellants based the case on the ground that there were certain
ancestral properties available with Deivanayaga Kounder and those
properties were acquired and he was paid compensation for the same.
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S.A.No. 1107 of 2021
Deivanayaga Kounder and the 6th respondent were working in Mill and they
were earning income. Using the compensation amount and monthly salary
of Deivanayaga Kounder and 6th respondent, the suit properties were
purchased in the name of Deivanayaga Kounder as elder member/kartha of
the joint family. However, it is seen from the oral and documentary evidence
and on perusal of the records that the appellants have not produced any
single piece of evidence to show that Deivanayaga Kounder owned
ancestral properties and those properties were acquired and he was paid
compensation. That apart, there is no evidence/document produced to show
what was the income earned by the 6th respondent and whether he
contributed his part of the income for the purchase of the suit properties. On
the other hand, Exs.A1 to A5, clearly show that the suit properties were
purchased by Deivanayaga Kounder.
10. The only conclusion that can be reached in this case is that the
suit properties are self acquired properties of Deivanayaga Kounder. When
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S.A.No. 1107 of 2021
it is found that the suit properties are self acquired properties of
Deivanayaga Kounder, the legal heirs of Deivanayaga Kounder, most
specifically, the respondents 1 to 5 and 6th respondent are governed by
section 8 of Hindu Succession Act, in the matter of succession to the suit
properties. All of them are class I legal heirs as per section 8 of Hindu
Succession Act. Each one of them is entitled to equal share ie. 1/6 share.
11. The 6th respondent fairly conceeded that the respondents 1 to 5
are entitled to 5/6 share. Both the Courts below have rightly found that the
suit properties are self acquired properties of Deivanayaga Kounder and
therefore, the respondent 1 to 5 and 6 are each entitled to 1/6 share.
Respondents 1 to 5 are not parties to O.S.No.136 of 1996. The judgment in
O.S.No.136 of 1996 will not bind them. This Court finds no reason to
interfere with the judgment of the Courts below. There is no substantial
question of law arise for consideration in this Second Appeal.
12. In view of the above, the Second Appeal is dismissed.
Considering the facts and circumstances of the case, the parties are directed
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S.A.No. 1107 of 2021
to bear their own costs. Consequently, connected miscellaneous petition, if
any, is closed.
04.01.2022
mfa
Index:yes/No
Internet:yes/No
To
1. The II Additional District Judge,
II Additional District Court,
Tindivanam.
2.The Principal Subordinate Judge,
Principal Subordinate Court, Tindivanam.
Copy to
The Section Officer,
VR Section,
High Court,
Chennai.
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S.A.No. 1107 of 2021
G.CHANDRASEKHARAN, J.
mfa
S.A.No. 1107 of 2021
05.01.2022
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