Madras High Court
Madasamy (Died) vs Karumari on 18 October, 2022
S.A(MD).No.697 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM : JUSTICE N.SESHASAYEE
S.A(MD).No.697 of 2006
C.M.P(MD).Nos.4113 and 4127 of 2022
1.Madasamy (Died)
2.Muthulakshmi
3.Devi
4.Deepa ...Appellants/Respondents/Defendants
5.xxxxx
6.xxxxx
7.xxxxx
8.H.Mariamal (Died)
9.M.Maheswari
10.M.Rameswari
11.M.Shanthi
12.M.Indhira
13.M.Manikandan ...Appellants
[Appellants 8 to 13 are brought on record as LR's of the deceased 1st
appellant vide order dated 04.01.2007 made in M.P.No.2 of 2006]
[Appellants 9 to 13 are recorded as LR's of the deceased 1 st appellant,
Memo recorded U.S.R.No.4610 dated 28.09.2016 vide order dated
03.04.2016 made in S.A(MD).No.697 of 2006]
[Minor appellants 3 and 4 are declared as majors and guardianship
of their court guardian namely Mr.K.Narasimma Krishnan, is
discharged vide order dated 29.04.2022 made in C.M.P(MD).No.
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S.A(MD).No.697 of 2006
4113/2022 in S.A.No.697 of 2006]
[Appellant No.8 is recorded as dead vide Memo dated 28.09.2016]
Vs
1.Karumari
2.Shantha ...Respondents/Appellants/Plaintiffs
3.Mariammal
4.Saraswathy
5.Veluthai ....Respondents
[Appellants 5 to 7 are transposed as the respondents 3 to 5 vide order
dated 10.10.2022 made in C.M.P(MD).No.8758 of 2022 in S.A.
(MD).No.697 of 2006]
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 08.03.2004 made in A.S.No.198 of 2003 and
the cross Appeal on the file of the Principal District Court, Tirunelveli,
reversing the judgment and Decree dated 23.07.2003 made in O.S.No.224 of
2001 on the file of the Principal Sub-Court, Tenkasi.
For Appellants : Mr.George Raja
for M/s.Ajmal Associates
For Respondents : Mr.N.Balakrishnan
for Mr.S.Sivakumar
for R1 and R2
No-appearance for R3 and R4
Mr.S.C.Herold Singh
for M/s.L.Jeen Felix
for R5
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S.A(MD).No.697 of 2006
JUDGMENT
The defendants 1 to 7 in O.S.No.224 of 2001 have preferred this appeal.
The suit was laid in O.S.No.224 of 2001 for partition of two schedules of
the properties. The plaintiffs claimed a combined 8/96 share in the 1st
schedule of the properties and a combined 1/8 share in the 2nd schedule of
the properties. The trial Court dismissed the suit as concerning the 1st
schedule of the properties but decreed the suit for the 2nd schedule of the
properties.
2. Aggrieved by the dismissal of the suit concerning the 1st schedule of the
properties, the plaintiffs preferred A.S.No.198 of 2003. The defendants on
their part had filed cross-objection concerning 1/8 share in the 2nd schedule
of the properties. The First Appellate Court allowed the appeal and
dismissed the cross-objection. In essence, the First Appellate Court had
decreed the entire suit as was prayed for by the plaintiffs. Hence, this second
appeal.
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S.A(MD).No.697 of 2006
3. As earlier outlined, the defendants 1 to 7 have preferred this appeal.
However, during the pendency of the appeal, the defendants 5 to 7 were
transposed and are now before this Court as respondents 3 to 5. This
transposition had occasioned at the instance of the other defendants 1 to 4.
However, no notice of this transposition is directed by this Court to the
defendants 5 to 7/(now the respondents 3 to 5), essentially because they
have all contested under one written statement, that their title to the suit
properties is based on the common defence is now substantially available
before the Court. However, Mr.Herold Singh, learned counsel has entered
appearance for the seventh defendant/now the respondent No.5.
4. The facts fall under a very narrow compass and it can be summed up:
● The 1st schedule of the properties has 12 items of the immovable
properties and they are stated to be held by a certain Thirumalai
Kumarasamy Thevar. It is the admitted case on either side that the
properties in the 1st schedule were held by him as ancestral properties.
The 2nd schedule of the properties contains five items of immovable
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S.A(MD).No.697 of 2006
properties which Thirumalai Kumarasamy Thevar had purchased vide
Ext.A1 to Ext.A7.
● Thirumalai Kumarasamy Thevar was first married to one Valliammal.
Through Valliammal, he had two sons namely the first defendant and
one Chakkarasamy. In addition, he also had two daughters namely
Mariammal and Saraswathi, the defendants 5 and 6 herein. Of these
four children, Chakkarasamy had died and his heirs are the
defendants 2 to 4.
● Even as his marriage with Valliammal was subsisting, Thirumalai
Kumarasamy Thevar is stated to have married one
Arunachalavadivammal and another Chenduammal. Through
Arunachalavadivammal, he had the plaintiffs 1 and 2 herein and
through Chenduammal, he has daughter, the seventh defendant
herein.
● The plaintiffs claim that on the demise of Thirumalai Kumarasamy
Thevar on 24.06.1988 [Ext.B1 is the Death Certificate], a share came
to be notionally allotted to them under Section 6 of the Hindu
Succession Act as was then invoked and they make a claim of a
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S.A(MD).No.697 of 2006
combined 9/96 share in the 1st schedule of the properties. So far as
the 2nd schedule of the properties is concerned, since they alleged that
they are self acquired properties of Thirumalai Kumarasamy Thevar
vide Ext.A1 to Ext.A7, they claimed 1/8 share therein under Section
16 of the Hindu Marriage Act.
● The defendants disputed it. According to them, since the plaintiffs are
the children born of an illegitimate marriage, they are not entitled to
any share in the ancestral properties described in the 1st schedule of
the properties. So far as the 2nd schedule of the properties are
concerned, they also partake the character of the ancestral properties
since the sale consideration passed under Ext.A1 to Ext.A7 was
mobilised from and out of the income from the 1st schedule of the
properties.
● So far as the status of the defendant No.7 is concerned, it is alleged
that Chenduammal was not married to Thirumalai Kumarasamy
Thevar but to another person and the seventh defendant was not born
to him at all.
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S.A(MD).No.697 of 2006
4.2. An additional fact now requires to be introduced which forms part of
the pleadings. The fifth defendant, a legitimate daughter of Thirumalai
Kumarasamy Thevar had laid O.S.No.287 of 1998 for partition. In this suit,
the first plaintiff was arrayed as the seventh defendant. The plaint in
O.S.No.287 of 1998 was marked as Ext.A8. In this suit, the first plaintiff
herein as the seventh defendant therein had filed her written statement
wherein she has also sought a preliminary decree for her share. This suit
was later stated to have been settled out of the Court vide Ext.A11 dated
17.10.2001.
5. The dispute went to trial and before the trial Court, both sides have
adduced their oral and documentary evidence. The documentary evidence
produced are already substantially introduced.
6. On appreciating the pleadings and the evidence before it, the trial Court
chose to dismiss the suit as concerning the 1st schedule of the properties but
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S.A(MD).No.697 of 2006
granted a decree as prayed for vis-a-vis the 2nd schedule of the properties.
The line of reasoning of the trial Court is to state the obvious:
● Inasmuch as the plaintiffs are illegitimate children born to Thirumalai
Kumarasamy Thevar through Arunachalavadivammal during the
subsistence of his first marriage and when his wife Valliammal was
still alive, they would not be entitled to the share in the ancestral
properties. So far as the 2nd schedule of the properties is concerned,
inasmuch as they have been purchased by him vide Ext.A1 to Ext.A7,
they were treated as self-acquisition and the trial Court granted a
decree as sought for by the plaintiffs.
7. Challenging the said decree, the plaintiffs preferred A.S.No.198 of 2003
and it is confined to the 1st schedule of the properties. The defendants 1, 2
and 6 had preferred cross-objection and it relates to the 2nd schedule of the
properties. The First Appellate Court had held that both the 1st and 2nd
schedules of the properties are ancestral properties and accordingly, reduced
the share of the plaintiffs in the 2nd schedule of the properties from a
combined 1/8 share to 4/96 share. So far as the 1st schedule of the properties
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S.A(MD).No.697 of 2006
is concerned, the First Appellate Court allotted a share by notional partition
to Thirumalai Kumarasamy Thevar in which he granted a combined 4/96
share to the plaintiffs. This is now challenged in this appeal.
8. This appeal was admitted for considering the following substantial
questions of law:-
1.Whether the Courts below are right in law in construing and
interpreting Section 16(1) of the Hindu Marriage Act, 1955, as
amended and Section 3(1) of the Hindu Succession Act, 1956
in holding that the respondents herein are entitled to partition
and separate possession of their respective shares in the suit
properties?
2. Whether the Courts below erred in law in thinking that the
marriage of the deceased Thirumalaikumarasamy Thevar who
died intestate with the mother of the respondents are proved in
the absence of any plea or legal proof as to the factum of
marriages?
9. The learned counsel appearing for the appellants submitted that the First
Appellate Court having held that the properties in the 2nd schedule are
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S.A(MD).No.697 of 2006
ancestral properties ought not to have granted a decree to the plaintiffs.
However, he has also argued an identical point vis-a-vis the 1st schedule of
the properties. But, the learned counsel appearing for the appellants is very
anxious about the defendants 5 and 6 who he apprehends may claim an
enlarged share in view of the Act 39 of 2005 and based on Vineeta Sharma
vs Rakesh Sharma and others [(2020) 9SCC 1] .
10. As on today, the defendant Nos.5 to 7 as already indicated have been
transposed as the respondents 3 to 5 and vis-a-vis their claim, the plaintiffs
have already produced Ext.A11 which relates to the fifth defendant and now
have produced additional document in C.M.P(MD).No.8757 of 2022 with
regard to the sixth defendant. Whether these documents will fall within the
Section 6(5) of the Hindu Succession Act or within the dictum in Vineeta
Sharma vs Rakesh Sharma and others [(2020) 9SCC 1] can be ascertained
only in their presence, more particularly, the additional document
necessarily is against the sixth defendant. This may require some factual
enquiry. Therefore, in fitness of things, this Court deems it appropriate to
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S.A(MD).No.697 of 2006
remit the matter back to the First Appellate Court, before which, the
appellants herein may canvass their contentions against the defendants 5
and 6. Since these defendants have now been transposed as the respondents
3 and 4, the First Appellate Court is now required to issue notice to the
defendants 5 and 6 and hear them and consider whether their shares would
be enlarged under Act 39 of 2005 read along with the dictum in Vineeta
Sharma vs Rakesh Sharma and others [(2020) 9SCC 1] and that will
decide what would be the share the plaintiffs in both the schedules of the
properties.
11. It is underscored that once the First Appellate Court passes the decree in
terms hereinabove indicated, it is required to direct the Courts below to suo
motu take up the final decree proceedings in terms of Kattukandi Edathil
Krishnan and another vs. Kattukandi Edathil Valsan and others
[2022 SCC ONLINE SC 737]. The parties are directed to appear before the
Principal District Court, Tirunelveli, on 02.11.2022. The Principal District
Court, Tirunelveli, is required to complete this exercise within a period of
six months therefrom.
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S.A(MD).No.697 of 2006
12. In fine, this Second Appeal is allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
18.10.2022
Internet:Yes/No
Index:Yes/No
ssb
Note: The Registry is directed to issue order copy on 19.10.2022 and return
the original document now produced in C.M.P.No.8757 of 2022.
To
1. Principal District Court, Tirunelveli,
2.Principal Sub-Court, Tenkasi.
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S.A(MD).No.697 of 2006
N.SESHASAYEE, J.
ssb
S.A.(MD) No.697 of 2006
18.10.2022
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