Madras High Court
Maheswari vs N.Raman Pillai on 28 November, 2022
A.S.No.68 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.68 of 2014
1. Maheswari
2. Anandayee .. Appellants
Versus
1. N.Raman Pillai
2. Bakkiyalakshmi
3. Tamilselvi
4. Kumar .. Respondents
Prayer : Appeal Suit filed under Order 41 Rules 1 & 2 read with Section 96
of Civil Procedure Code against the judgment and decree of the learned I
Additional District Judge, Salem, made in O.S.No.56 of 2010, dated
26.07.2013.
For Appellants : Mr.J.Titus Enock
for Mr.V.Murugesan
For Respondents : Mr.T.S.Vijaya Raghavan,
for RR-2 and 3
: No Appearance, for RR-1 and 4
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A.S.No.68 of 2014
JUDGMENT
A. The Appeal Suit :
This Appeal Suit is filed against the judgment and decree dated
26.07.2013, passed by the learned I Additional District Judge, Salem in
O.S.No.56 of 2010, in and by which, the suit for partition and declaration
declaring that the settlement deed executed by the first defendant in favour
of the defendants 2 and 3 as null and void, was dismissed by the Trial Court.
B. The Plaint :
2. The case of the plaintiff is that the first defendant/Raman Pillai, is
the father of the first plaintiff/Maheswari and the fourth defendant/Kumar.
He was first married to one Sivagamiammal and through his first marriage,
the second defendant/Bakkiyalakshmi and the third defendant/Tamilselvi
were born. Thereafter, he got married to the second plaintiff/Anandayee and
through the second defendant, the first plaintiff/Maheswari and the fourth
defendant/Kumar were born. The suit properties were the ancestral
properties in the hands of the first defendant/Raman Pillai. Some items of
the suit properties were purchased by the first defendant/Raman Pillai, out
of the income from the said joint family nucleus. The said Raman Pillai had
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illegally settled majority of the items in the suit properties in favour of the
defendants 2 and 3 by a settlement deed dated 02.07.2009, except in respect
of one item of the suit properties. Therefore, the said settlement deed,
which is executed without any valid right, title or interest whatsoever is
liable to be declared as null and void and the plaintiffs are entitled to 2/6
shares in the suit properties.
C. The Written Statement :
3. The defendants resisted the suit by filing a written statement. It is
the case of the defendants that the first defendant is the father and one
Kamala @ Sivagami, who died, was the mother of the defendants 2 and 3.
As far as the second plaintiff/Anandayee is concerned, she was married only
to Velu Asari and it was through him only, the fourth defendant/Kumar and
the first plaintiff/Maheswari were born, and therefore, the genealogy as in
the plaint, was denied. As stated in paragraph No.6 of the written statement,
as far as the self-acquired properties are concerned, the defendant has
executed a settlement deed, and for the rest of the properties, the plaintiffs
cannot claim any right as they are not members of the joint family and
therefore, both the plaintiffs cannot claim 1/6th share each.
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D. The Issues :
4. On the said pleadings, the Trial Court framed the following issues:-
1) Whether the 2nd plaintiff is the wife of
the 1st defendant and the 1st plaintiff and 4th
defendant are children born between them?
2) Whether suit property is the joint family
property?
3) Whether suit property covered in sale
deed dated 30.10.1961 purchased from the
income of the joint family?
4) Whether the plaintiffs are having 2/6
shares in the suit property?
5) Whether the settlement deeds executed
by 1st defendant dated 2.7.2009 is void?
6) Whether plaintiffs are entitled for
preliminary decree for partition and separate
possession as prayed for?
7) Whether plaintiffs are entitled for
permanent injunction as prayed for?
8) To what other relief plaintiffs are
entitled to?
E. The Evidence :
5. The first plaintiff examined herself as P.W.1 and the second
plaintiff was examined as P.W.2. Exs.A-1 to A-7 were marked on behalf of
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A.S.No.68 of 2014
the plaintiffs. On behalf of the defendants, the third defendant/Tamilselvi,
was examined as D.W.1 and one Velusamy, who was the original husband
of the second plaintiff/Anandayee, was examined as D.W.2. and Ex.B-1 was
marked on behalf of the defendants.
F. The Findings of the Trial Court :
6. Thereafter, the Trial Court proceeded to consider the case of the
parties, and by a judgment dated 26.07.2013, it found that even as per the
plaintiffs, since the properties are purchased by the plaintiff's grandfather
i.e. the father of Raman Pillai, namely one Narayanapillai, and since there
is no evidence that the properties were ancestral in the hands of Raman
Pillai, the Trial Court held that the properties devolved under Section 8 of
the Hindu Succession Act, 1956, and therefore they would be separate
properties. Once it is held to be his separate properties, the other properties
purchased from and out of the income arising out of the said properties were
also be held as seperate properties, therefore, the Trial Court held that, all
the suit properties were separate properties of the first defendant/Raman
Pillai. Once the properties are the separate properties of the first
defendant/Raman Pillai, no exception can be taken to the right to convey
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A.S.No.68 of 2014
the same to the defendants 2 and 3, and therefore it held that the plaintiffs
were neither entitled for the relief of partition, nor for the relief of
declaration relating to the settlement deed. The contention of the first
defendant that the first plaintiff is not the daughter was rejected . As a
matter of fact he has executed a Will in respect of one property which is left
out in favour of the first plaintiff. The Trial Court even requested the first
defendant not to revoke the said Will and dismissed the suit. Aggrieved by
the same, the plaintiffs have filed this Appeal Suit.
G. The Submissions :
7. Heard Mr.J.Titus Enock, the learned Counsel appearing on behalf
of the appellants and Mr.T.S.Vijaya Raghavan, the learned Counsel
appearing on behalf of the respondents 2 and 3.
8. Mr.J.Titus Enock, the learned Counsel appearing on behalf of the
appellants, taking this Court through the pleadings and the evidence on
record, specifically drew the attention of this Court to the paragraph Nos.5,
6 and 8 of the plaint to contend that it is the specific case of the plaintiffs
that the properties are the joint family properties and therefore, the purchase
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A.S.No.68 of 2014
made from and out of the income from the joint family properties would
also be treated as properties purchased out of joint family nucleus and
therefore, all the suit properties are in the nature the joint family properties.
The defendants have not denied the nature of suit properties in their written
statement. Once the properties are proved to be joint family properties, it
should be held that the first plaintiff being the daughter, by virtue of a
judgment of the Hon'ble Supreme Court of India in Vineeta Sharma Vs.
Rakesh Sharma1, is entitled for a share in the suit properties. He would
specifically draw the attention of this Court to the paragraph No.6 of the
written statement, where under, even though the defendants have
specifically pleaded that, in respect of his self-acquired properties the
properties are dealt with by way of the settlement deed, it is not specifically
denied by them anywhere in the written statement that the other properties
are not joint family properties. He would then contend that, it is the specific
contention of the defendants that the plaintiffs are not the members of the
joint family. Therefore, he would submit that once the Trial Court found
that the first plaintiff is the daughter, even if automatically going by the
written statement of the defendants, the Trial Court ought to have decreed
the suit.
1 (2020) 9 SCC 1
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A.S.No.68 of 2014
9. Per contra, Mr.T.S.Vijaya Raghavan, the learned Counsel
appearing on behalf of the respondents 2 and 3 would contend that, it cannot
be held that the defendants have not denied the properties as joint family
properties. Even though the pleadings could have been more clear and
categorical, he would submit that on a reading paragraph Nos.3 to 6 in toto,
it would be clear that, firstly the defendants had denied the relationship, and
secondly, they have also denied that the plaintiffs have no share in the
properties. As a matter of fact, once the defendants specifically contend that
the self acquired properties are dealt with by settlement deed, it goes
without saying that they have claimed the properties as self-acquired
properties only. Therefore, a mere confusion or less clarity in the written
statement by and itself will not vest the title or share to the plaintiffs. He
would also submit that, even from a reading of the plaint itself, it is clear
and categorical that the properties were not ancestral properties. It was the
self-acquired properties of late Narayanapillai, who was the grandfather of
the first plaintiff. Once it is the self-acquired properties of Narayanapillai,
upon his death, it devolves on the first defendant/Raman Pillai under
Section 8 of the Hindu Succession Act, 1956, and therefore, would only be
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A.S.No.68 of 2014
his separate properties and he is free to deal with the same in any manner
whatsoever. Accordingly, the Trial Court has rightly dismissed the suit.
With respect to the Will, it has been subsequently revoked in view of the
subsequent developments, which cannot be questioned by the plaintiffs.
H. Points for consideration :
10. Upon considering the rival submissions made on either side and
on perusal of the material records of the case, the following questions arise
for consideration:-
(i) What is the relationship between the parties?
(ii) What is the nature of the suit properties and if so, to what shares
the parties are entitled in the suit properties?
I. Question No.1 :
11. As far as the relationship between the parties is concerned, the
fact that Raman Pillai is the father and Sivagamiammal is his first wife is
admitted. The contentious issue is that whether Anandayee got married to
one Velu Asari and whether Anandayee subsequently got married to Raman
Pillai, and if so, whether Maheswari and Kumar were born to them. In this
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regard, on a cumulative reading of the evidence on record, both the oral
testimonies of P.Ws.1 and 2, their cross-examination, their respective dates
of birth and age, Ex.B-1, death certificate and the oral testimony of
D.W.2/Velusamy, the following facts are clear:-
(i) Originally, the first defendant was married to one Sivagamiammal
and she died in the year 1969.
(ii) The second plaintiff was originally married to one Velu Asari, in
the year 1967 and the fourth defendant was born to them; As a matter of
fact, the fourth defendant, Kumar, did not join the two plaintiffs and he even
remained ex parte and did not contest the suit;
(iii) From the evidence of Velusamy, it is clear that there arose
differences of opinion between them within three years and therefore, the
fact that the first defendant being widower, subsequently got married again
to the second plaintiff, and from Exs.A-3 to A-5 it would be clear that the
first plaintiff/Maheswari was born to the first defendant and the second
plaintiff.
Accordingly, I reject the case of the plaintiffs in as much as their
assertion that the fourth defendant, Kumar, was also born to the first
defendant/Raman Pillai and I reject the case of the defendants in as much as
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the first plaintiff was born to the second plaintiff/Anandayee and
D.W.2/Velusamy. Accordingly, the question relating to the relationship
between the parties is answered.
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J. Question No.2 :
12. As far as the suit properties are concerned, if the suit properties
are coparcenary properties as contended by the learned Counsel for the
appellants, the first plaintiff being the daughter of the first defendant, would
be entitled to a share by birth by virtue of the judgment of the Hon'ble
Supreme Court of India in Vineeta Sharma Vs. Rakesh Sharma (cited
supra). Therefore, the point that has to be determined is whether the suit
properties were coparcenary in nature in the hands of the first defendant or
his separate properties. In this regard, all properties inherited by a male
Hindu from his father, will not automatically be coparcenary properties. It
is the plaintiffs assertion of the plaintiffs and that they ought to have proved
the same. Even as per the case of the plaintiffs in paragraph No.5, the
properties were purchased by Raman Pillai's father Narayanapillai.
Therefore, upon the death of Narayanapillai, it devolves on Raman Pillai
under Section 8 of the Hindu Succession Act, 1956 and therefore, the
properties were his separate properties and cannot be said to ancestral or
purchased out of ancestral or properties which are thrown into the joint
family hotchpot. Therefore, once the suit properties were held to be
separate properties, some of the items in the suit properties which were
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purchased by Raman Pillai, will also be his self-acquired/separate
properties and therefore, I am afraid that the first plaintiff is entitled to any
right to the suit properties during the lifetime of the first defendant. The
plaintiffs failed to prove that the properties are coparcenary properties and I
accordingly answer the point.
13. In view thereof, I hold that the plaintiffs are not entitled to the
relief of partition as well as to the relief of declaration that the settlement
deed is null and void. However, during the course of the arguments, the
learned Counsel for the appellants would submit that, the revocation of the
Will is disputed. I am of the view that this is not the lis between the parties
arising out of the Will, thus, whether the Will was revoked validly or not
will not depend upon the request of the Trial Court, but, otherwise, whether
it was executed with a sound state of mind etc., could be gone into only
when an appropriate question as to the devolution of the said items of the
properties comes before the Court and cannot be decided in the present suit
and as such, is left open for the parties to contest.
K. Answers to the Issues :
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14. In view of my above findings, I find that the findings of the Trial
Court in respect of the issue No.1 framed with respect to the relationship
between the parties as correct and I affirm the same. I answer the issue
Nos.2 to 5, in the Original Suit, that the properties are not coparcenary
properties and would be separate properties of the first defendant and as
such, the plaintiffs are not entitled for the relief of partition as well as the
declaration. Accordingly, the said issues are also answered that the
plaintiffs will not be entitled to any relief whatsoever.
L. The Result :
15. In the result, this Appeal Suit in A.S.No.68 of 2014 is dismissed.
The judgment and decree of the Trial Court, dated 26.07.2013 in O.S.No.56
of 2010 is confirmed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
28.11.2022
Index : yes
Speaking order
grs
To
1. The I Additional District Judge,
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A.S.No.68 of 2014
Salem.
2. The Section Officer,
VR Section,
High Court of Madras.
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A.S.No.68 of 2014
D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.68 of 2014
28.11.2022
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