Madras High Court
K.C. Subramanian vs Gandhimathi on 28 November, 2022
A.S. Nos.23 & 71 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2022
CORAM :
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
A.S. Nos.23 & 71 of 2012 &
M.P. No.1 of 2012
A.S. No.23 of 2012
K.C. Subramanian ... Appellant
Vs.
1. Gandhimathi
2. Rajalakshmi
3. Valarmathi
4. Indirani
5. R. Rangasamy
6. S. Natarajan ... Respondents
A.S. No.71 of 2012
1. Rajalakshmi
2. Valarmathi
3. Indirani ...Appellants
Vs.
1. Gandhimathi
2. S. Natarajan
3. K.C.Subramanian
4. Saraswathy
5. Mohanraj
6. Kannan
7. Ashok Kumar ...Respondents
Page 1 of 17
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
Cause title accepted vide order of Court dated 18.01.2012
made in M.P. No.1 /12 in A.S.Sr. No.3473/12.
COMMON PRAYER: First Appeals filed under Section 96 r/w Order 41
of the Code of Civil Procedure against the decree and judgment dated
30.06.2011 made in O.S. No.233 of 2004 on the file of the Additional
District Court, Fast Track Court, Namakkal.
A.S. No.23 of 2012
For Appellant : Mr. Kaithamalai Kumaran
For R1 : Mr. C. Jagadish
For R2 to R4 : Mr. T. Murugamanickam,Senior
counsel
Asst. by Ms. Zeenath Begum
R5 : Given up
R6 : No appearance.
A.S. No.71 of 2012
For Appellants : Mr. T. Murugamanickam, Senior
counsel
Asst. by Ms. Zeenath Begum
For R1 : No appearance.
For R3 : Mr. Kaithamalai Kumaran
For R2, R4 to R7 : Mr. C. Jagadish
Page 2 of 17
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
JUDGMENT
The unsuccessful defendants 1 to 3 in O.S. No.233/2004 on
the file of the Additional District Court, Fast Track Court, Namakkal, are
the appellants in A.S.No.71/2012 while the 6th defendant is the appellant
in A.S.No.23/2012. They filed the present appeals challenging the
preliminary decree passed in O.S. No.233/04 on 30.06.2011 on the file
of the Additional District Court, Fast Track Court, Namakkal. The
plaintiff Gandhimathi filed the suit for partition of the suit properties.
2. The brief case of the plaintiff in nutshell is as follows:
i. The plaintiff and the defendants 2 and 3 are sisters. Their father
Nallusamy died intestate on 17.04.1996. The 1st defendant is their
mother. The 4th defendant is the younger brother of the plaintiff's
father and the 5th defendant is the son of the 4th defendant. The 6th
defendant (appellant in A.S. No.23/2012) is the husband of the 2nd
defendant.
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
ii. On 15.03.1970 there was a partition in the family of Late
Nallusamy, in which the 1st item of the suit properties was allotted
to the share of Late Nallusamy. The 2 nd item of the suit property
was purchased by the plaintiff and the defendants 2 and 3 through
a sale deed dated 07.10.1970 (Ex.A2). The 3 rd item of the suit
properties has been in joint possession of the plaintiff's father and
the defendants 4 and 5. Till date there was no partition with regard
to the said property.
iii. The plaintiff got married on 27.02.1994. Since her father died
intestate, she is entitled to a share in all the three items of the suit
properties by Tamil Nadu Act 1 of 1990 as shown below:
Item No.1 5/8 share
Item No.2 1/3 share
Item No.3 5/24 share
iv. According to the plaintiff since there are some difficulties in
enjoying the suit properties in common, she requested the
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
defendants 1 and 2 for partition of the suit properties and that since
it was not favourably considered by the latter, she was constrained
to file a suit for partition of the suit properties.
3. The suit was resisted by the defendants 1 to 3 on the
following grounds:
i. The plaintiff and the defendants 1 to 3 are not in possession of the
suit properties.
ii. Nallusamy during his lifetime executed a Will dated 14.02.1996
(Ex.B1) bequeathing the suit properties in favour of the plaintiff
and the defendants 2 and 3 and also created a life estate for his
wife, the 1st defendant.
iii. After the death of Nallusamy, the husbands of the defendants 2
and 3, in the presence of elders and well wishers of the family
made a family arrangement dated 19.04.1996 (Ex.B2), in which
the 6th defendant was directed to maintain the suit properties and
also to repay the loans obtained by Nallusamy. According to them,
Nallusamy had obtained loans in various banks and also from
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
private persons during his life time.
iv. The 6th defendant in order to repay the loan amount at an early date
was cultivating crops in the suit properties by drawing water from
his well situate in survey No.312/1.
v. According to them, the plaintiff can only claim 1/3 share in the suit
properties after repaying the loan amount.
vi. Therefore, they prayed for dismissal of the suit.
4. The 6th defendant filed a separate written statement in which
he has stated that as per the family arrangement dated 19.04.1996, he
was managing the entire suit properties and he also repaid certain loans
obtained by Late Nallusamy. According to him, he has to pay the
remaining loan amount, which is around Rs.15,00,000/-. He also prayed
for dismissal of the suit.
5. The plaintiff in the reply statement had denied the execution
of family arrangement on 19.04.1996 and had also contended that the 6th
defendant never paid any amount towards the alleged loans obtained by
Late Nallusamy.
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
6. The defendants 4 and 5 remained absent and were set ex
parte.
7. On the basis of the above pleadings, the trial court framed
the following issues.
1) Whether Late Nallusamy executed a Will dated 14.02.1996?
2) Whether there was a family arrangement on 19.04.1996 and on
that basis the defendants 2 and 6 are maintaining the suit
properties?
3) Whether the suit is bad for partial partition?
4) Whether the defendants 2 and 6 repaid the loan amounts obtained
by Nallusamy from out of their own income?
5) Whether the 6th defendant repaid the loan amounts obtained by
Late Nallusamy as mentioned in 'A' schedule of his written
statement?
6) Whether the payment of loans by the 6th defendant would bind the
plaintiff as mentioned in 'B' schedule?
7) Whether the plaintiff is entitled to 5/8 share in suit Item No.1?
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
8) Whether the plaintiff is entitled for 1/3 share in suit Item No.2?
9) Whether the plaintiff is entitled for 5/24 share in suit Item No.3?
10) To what relief is the plaintiff entitled?
8. In the trial court the plaintiff examined herself and one
another witness and marked Ex.A1 to Ex.A5. The 3rd defendant and the
6th defendant examined themselves and 9 other witnesses and marked
Ex.B1 to Ex.B31 . Apart from the above documents Ex.C1 to Ex.C3 and
Ex.X1 to Ex.X3 were also marked.
9. The plaintiff Gandhimathi filed another suit in
O.S.No.40/2008 for a permanent injunction restraining the Special
Officer, Cooperative Sugar Mills, Salem, from disbursing any amount for
the sugar cane harvested from the suit properties, to the 2 nd defendant
K.C.Subramanian (appellant in A.S. No.23/2012). Both the suits in
O.S.No.233/2004 and O.S.No.40/2008 were tried jointly and the learned
Additional District Judge, Fast Track Court, Namakkal, vide his decree
and judgment dated 30.06.2011 dismissed the suit in O.S. No.40/2008
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
and decreed the suit in O.S. No.233/04 as prayed for by the plaintiff. A
preliminary decree for partition was passed by the trial court judge as
shown hereunder:
Suit Item No. Allotment of share to the plaintiff.
1 5/8
2. 1/3
3. 5/24
10. Challenging the preliminary decree, A.S. No.23/2012 is
filed by the 6th defendant and A.S. No.71/2012 is filed by the defendants
1 to 3.
11. Mr. T. Murugamanickam, learned Senior counsel assisted
by Ms.Zeenath Begum, learned counsel for the appellants in A.S.71/2012
fairly conceded that as per the decision rendered in Vineeta Sharma vs.
Rakesh Sharma reported in (2019) 6 SCC 162, the plaintiff and the
defendants 1 to 3 are entitled to the following shares.
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
IMPUGNED PRELIMINARY AS PER VINEETA SHARMA decision
DECREE (Tamil Nadu Act 1/1990) (cited supra)
ITEM NO.1 ITEM NO.1
Notional Partition between Nallusamy = 1/4
Nallusamy and Plaintiff - 1/2 share each. Plaintiff = 1/4
After Nallusamy's death - his half share is D2 = 1/4
inherited by his wife D1, plaintiff and D3 = 1/4
defendants 2 & 3
= 1/2 x 4 = 1/8 AFTER NALLUSAMY's DEATH - his
one-fourth share is inherited by his wife
Therefore : D1, plaintiff and defendants 2 & 3
Plaintiff : 1/2 + 1/4 = 5/8 = 1/4 x 4 = 1/16
D1 = 1/8 Plaintiff = 5/16
D2 = 1/8 D2 = 5/16
D3 = 1/8 D3 = 5/16
D1 - Widow = 1/16
ITEM NO.2 ITEM NO.2
Plaintiff = 1/3
D2 = 1/3 SAME SHARES
D3 = 1/3
ITEM NO.3 ITEM NO.3
Nallusamy = 1/6 Nallusamy = 1/12
Plaintiff = 1/6 Plaintiff = 1/12
After Nallusamy's death - his 1/6 share is D2 = 1/12
inherited by his wife D1, plaintiff and D3 = 1/12
defendants 2 & 3
AFTER NALLUSAMY's DEATH - his
Therefore : 1/12 share is inherited by his wife D1,
Plaintiff : 1/6 + 1/4 = 5/24 plaintiff and defendants 2 & 3
D1 = 5/24 = 1/12 x 4 = 1/48
D2 = 5/24 Therefore, 1/12 + 1/48 = 5/48
D3 = 5/24 Plaintiff = 5/48
D2 = 5/48
D3 = 5/48
D1 - Widow = 5/48
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
The learned counsel for the respondents also accepted the above division
of shares as per the decision of Hon'ble Apex Court. In fact, the counsel
for the appellants in A.S. No.71/2012 did not press their plea with regard
to the Will dated 14.02.1996 and the family arrangement dated
19.04.1996. It is to be pointed out that the plaintiff and the defendants 1
to 5 are the sharers in the suit properties and the defendants 4 and 5 did
not contest the suit. They did not also enter appearance in the present
appeal.
12. Thus there is no dispute with regard to the division of
shares. The points for consideration in A.S. No.23/2012, which is filed
by the 6th defendant (husband of the 2nd defendant) challenging the
preliminary decree, are as follows:
1) Whether there were loans to the tune of Rs.14,55,337/- in the
family consisting of the plaintiff and defendants 1 to 3 as claimed
by the 6th defendant?
2) Whether the appeal in A.S. No.23/2012 is liable to be allowed?
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
13. According to the 6th defendant, as per the family
arrangement dated 19.04.1996, he was managing the entire suit
properties and he repaid certain loan amounts obtained by Late
Nallusamy. According to him, the plaintiff and the defendants 1 to 3 can
get their share only after repayment of other loan amounts obtained by
Late Nallusamy, which is about Rs.15 lakhs as on date. The plaintiff
had denied her signature in the family arrangement (Ex.B2) dated
19.04.1996.
14. In order to prove the execution of Ex.B2, the 6th defendant
relied on the evidence of D.W.1, D.W.3 to D.W.6. The learned trial court
judge had held that when both the parties agreed that there was no
dispute between them with regard to their respective shares in the suit
properties, there was no necessity for them to execute Ex.B2. Further it is
pertinent to point out that the 6th defendant did not let in any evidence to
show that he and his wife alone repaid the loan amounts obtained by Late
Nallusamy. No documentary evidence was adduced on the side of the
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
appellant in this regard before the trial court. His only contention in the
written statement is that in order to repay the loan amounts at an early
date, he was cultivating crops in the suit properties by drawing water
from a well which is situate in his own property.
15. The 6th defendant had stated that a sum of Rs.14,55,337/-
has to be paid to him. Except the tabular column furnished in the written
statement showing the various loans repaid by him, there is no other
documentary evidence to show that he repaid the loan amounts allegedly
obtained by Late Nallusamy from out of his own income. It is not also
the case of the 6th defendant that various creditors have filed suits for
recovery of loan amounts obtained by Late Nallusamy. Apart from that,
the 6th defendant also did not file any counter claim in the suit in O.S.
No.233/2004. In any event, he cannot challenge the preliminary decree
passed in favour of the plaintiff since he is a rank outsider to the family
consisting of the plaintiff and the defendants 1 to 5. Accordingly points
No.1 and 2 are answered against the appellant in A.S.No.23/2012. The
actual sharers, namely, the plaintiff and the defendants 1 to 3 have in a
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
clear cut terms stated that as per the decision in Vineeta Sharma vs.
Rakesh Sharma (cited supra), they are entitled to the following shares.
Suit Division of share to the share to the share to share to
Item share plaintiff. D1. D2. D3
No.
1 16 5/16 1/16 5/16 5/16
2. 3 1/3 1/3 1/3
3. 48 5/48 1/48 5/48 5/48
In the circumstances the appeal filed by the 6 th defendant is liable to be
dismissed.
16. In the result,
i. First Appeal in A.S. No.23/2012 is dismissed. No costs.
ii. First Appeal in A.S. No.71/2012 is partly allowed. No costs.
consequently connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
iii. The decree and judgment dated 30.06.2011 made in O.S. No.233
of 2004 on the file of the Additional District Court, Fast Track
Court, Namakkal, is set aside and preliminary decree for partition
is passed as detailed hereunder:
Suit Item Allotment of share to Modified Allotment of share to
No. the plaintiff as per the plaintiff as per Vineeta
preliminary decree Sharma vs. Rakesh Sharma
decision
1 5/8 5/16
2. 1/3 1/3
3. 5/24 5/48
28.11.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
1. Additional District Judge, Fast Track Court, Namakkal.
2. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
A.S. Nos.23 & 71 of 2012
R. HEMALATHA, J.
bga
A.S. Nos.23 & 71 of 2012 &
M.P. No.1 of 2012
28.11.2022
https://www.mhc.tn.gov.in/judis
