Madras High Court
Chandrasekaran vs Vijaya on 5 January, 2023
AS. Nos.577 and 575 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 05.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
AS. Nos.577 and 575 of 2016
AS.No.577 of 2016
Chandrasekaran .. Appellant
Versus
1. Vijaya
2. Suseela
3. Selvi
4. Muthaiyan
5. Jamuna Rani
6. Velmurugan
7. Balu .. Respondents
PRAYER: First Appeal filed under Section 96 of C.P.C. Order 41 Rule 1
of CPC, against the judgment and decree in OS.No.155 of 2013 on the file
of III Additional District and Sessions Judge, Cuddalore at Virudhachalam,
dated 31.07.2015.
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AS. Nos.577 and 575 of 2016
For appellants : Mr.V.Raghavachari
For respondents
for RR2 & 3 : Mrs.Hema Sampath, Senior Counsel
for M/s.R.Meenal
for RR1, 4, 6 to 8 : No Appearance
for R5 : Incorrect address
AS.No.575 of 2016
Chandrasekaran .. Appellant
Versus
1. Suseela
2. Vijaya
3. Selvi
4. V.Anbalagan
5. V.Murugan
6. A.Rajendra
7. Muthaiyan
8. Jamuna Rani .. Respondents
[8th respondent's name changed from Umarani.
Amended as per the order dated 20.01.2010
in I.A.354/2009]
PRAYER: First Appeal filed under Section 96 of C.P.C. Order 41 Rule 1
of CPC, against the judgment and decree in OS.No.9 of 2010 on the file of
III Additional District and Sessions Judge, Cuddalore at Virudhachalam,
dated 31.07.2015.
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AS. Nos.577 and 575 of 2016
For appellants : Mr.V.Raghavachari
For respondents
for RR2 : Mrs.Hema Sampath, Senior Counsel
for M/s.R.Meenal
For RR1, 3 to 5 & 7 : No Appearance
COMMON JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J)
These 2 appeals arise out of the judgment and decree in OS.No.9 of
2010 and OS.No.155 of 2013, on the file of the III Additional District Court,
Cuddalore at Virudhachalam. While AS.No.575 of 2016 is against the
judgment and decree in OS.No.9 of 2010 and AS.No.577 of 2016 is against
the judgment and decree in OS.No.155 of 2013. The plaintiff in the suit in
OS.No.9 of 2010, who is also the first defendant in OS.No.155 of 2013, is
the appellant in both the appeals.
2. The brief facts that are necessary for disposal of these appeals are
as follows:
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AS. Nos.577 and 575 of 2016
i) One of the daughters of Pachamuthu Udayar, filed the suit in
OS.No.155 of 2013 for partition of 1/4th share in the suit properties
described as suit items 1, 2, 3 and 4. Each item consists of several
properties. The first defendant is the son of Pachamuthu Udayar and the
defendants 2 and 3 are the other daughters of Pachamuthu Udayar.
ii) It is the case of the plaintiff in OS.No.155 of 2013 that the suit
properties items 2 and 3 consists of Joint family properties which are
acquired by sale deeds either in the name of Pachamuthu Udayar or in the
name of first defendant out of income from the properties or by alienating
properties, allotted to Pachamuthu Udayar in a family partition dated
20.03.1955. The properties which are described in item No.4 are admittedly
the properties of Rayammal, who is the wife of Pachamuthu Udayar and
mother of the plaintiff in the suit.
iii) It is the further case of the plaintiff in OS.No.155 of
2013/daughter of Pachamuthu Udayar is that the properties described as 1st
item are the properties bequeathed by her father Pachamuthu Udayar in her
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AS. Nos.577 and 575 of 2016
favour under the Will dated 23.08.2007. Since the plaintiff in OS.No.155 of
2013 claimed that father is entitled only 1/5 share and admit that the Will is
valid in respect of father's 1/5 share, no relief is prayed for in the suit as
regards properties in suit 1st item. It is further stated that the plaintiff is
entitled to 1/4 share in all the properties left by her father and mother which
are shown as items 2 to 4.
3. The plaintiff in OS.No.9 of 2010 is the only son of Pachamuthu
Udayar. He filed the said suit for declaration of his exclusive title to the suit
properties and for consequential permanent injunction restraining the
defendants from interfering with the peaceful possession and enjoyment of
the suit properties. Fourth defendant is the husband of first defendant, fifth
defendant is the husband of second defendant, who is the plaintiff in
OS.No.155 of 2013, and the sixth defendant is the husband of third
defendant. Defendants 7 and 8 in OS.No.9 of 2010 are the alienees of some
of the suit properties and they are entitled to a fraction of share to which
their vendors are entitled to. The defendants 6 and 7 in OS.No.155 of 2013
are also alienees.
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4. No one has represented the alienees or the sons-in-law of
Pachamuthu Udayar. Therefore, having regard to the facts admitted, this
Court is not inclined to decide the rights or title of alienees as it can be
worked out at the time of final decree proceedings.
5. The Trial Court, in view of the common issues that arose for
consideration in both the suits, disposed of both suits by a common
judgment and decree dated 31.07.2015. The plaintiff in OS.No.9 of 2010,
who is the son of Pachamuthu Udayar filed the above suit based on the Will,
dated 18.10.2007 alleged to have been executed by Pachamuthu Udayar.
The Trial Court held that the Will relied upon by the plaintiff in OS.No.9 of
2010 is not proved in the manner known to law and therefore the suit in
OS.No.9 of 2010 is dismissed for declaration of title and consequential
injunction. However, while declaring the share of the plaintiff in OS.No.155
of 2013, the Trial Court held that the plaintiff and defendants 1 to 3 are all
entitled to 1/5th share in the suit items 2 and 3 and 1/4th share in IV
schedule property and also entitled to 1/4th share each out of 1/5 share of of
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AS. Nos.577 and 575 of 2016
Pachamuthu Udayar in the suit properties. Since the properties described in
the IV schedule are the properties of mother Rayammal, the plaintiff in
OS.No.155 of 2013 was granted decree for partition of her 1/4th share in
item 4. Aggrieved by the judgment and decree in both the suits, the plaintiff
in OS.No.9 of 2010, who is also the first defendant in OS.No.155 of 2013,
has preferred the above appeals.
6. The learned counsel appearing for the appellant in both the appeals
submitted that the Will, dated 23.08.2007 executed by the appellant's father
Pachamuthu Udayar is invalid as the properties are joint family properties
and he has no competence to execute the Will, which is marked as Ex.A4.
He also stated that since the Will was not proved in the manner known to
law, the Trial Court ought to have granted alternative relief by granting a
preliminary decree of partition in respect of appellant's 1/4th share in the suit
first item also.
7. The learned counsel for the appellant then submitted that the Court
below failed to appreciate the intention of Pachamuthu Udayar while
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AS. Nos.577 and 575 of 2016
executing the Holograph Will under Ex.A5. It is further contended by the
learned counsel that the appellant has not been granted any right under the
Will, which was marked as Ex.A4.
8. The learned counsel appearing for the plaintiff in OS.No.155 of
2013, who is also the second defendant in OS.No.9 of 2009, fairly admitted
that she is not claiming any right under the Will. Therefore, this Court is of
the view that the plaintiff in OS.No.9 of 2009 viz., the appellant, is also
entitled to 1/4th share in all the properties.
9. The learned counsel appearing for the appellant in both the appeals
submitted that there is a disruption of joint family and there was a severance
of status by execution of the Will dated 22.03.2000, which is marked as
Ex.A2. Though the said Will was subsequently cancelled, the learned
counsel submitted that the appellant/plaintiff is entitled to half share and the
remaining half share by birth as the properties are joint family properties of
his father.
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10. The learned counsel for the appellant further submitted that the
Hindu Succession Amendment Act 39 of 2005 will have no application to
the case on hand as there was no joint family when 2005 Act came into
force.
11. The learned counsel also relied upon the judgment of the Hon'ble
Supreme Court in the case of Mr.N.Aryamurthy and another vs.
Mr.M.D.Subbaraa Setty reported in 1972 (4) SCC 1. The learned counsel
relied upon paragraph 20 of the judgment, wherein it reads as follows:
“20. That being the position, the question arises whether the
defendants would, in law, be liable to account to the plaintiff
for the profits earned by the defendants in their own business
or for the acquisitions made by them in that business. We
agree with the High Court that they were not so liable. On a
partition by severance of the joint status, the members of the
family become tenants-in-common of the family property. If
one of the members remains in possession of the entire
properties of the family, here is no presumption that the
property, which as acquired by him after severance of the
status, must be regarded as acquired for the family. See
Gulabroao Fakirrao v. Baburao Fakirrao and Another.
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Where rents and profits are received by the member in
possession, he would be liable to account for the rents and
profits received by him. But the funds in the hands of that
member do not become impressed with any trust in favour of
the other members. See John Kennedy v. Mary Annette De
Trafford and Others. Therefore, if such a member acquired
some property with the funds in his possession, the other
members could claim no share in that property. Hence we
agree with the High Court that the business carried on by the
defendants on and after July 11, 1940 should be considered
as the exclusive business of the defendants, and the plaintiffs
would have no right to claim any share in the profits or the
acquisitions made out of that business. What is true about this
business carried on by the defendants is also true of the
business carried on by the plaintiff. The defendants have not
claimed and cannot claim any share in the business run by the
plaintiff after July 11, 1940 or in the profits and acquisitions
made by him that business. This finding, however, is not to be
understood to mean that the securities and stock-in-trade
already referred to are not to be taken into account as family
assets for the purpose of partition, nor can the parties decline
the liability to account to each other for the income derived
by them from the family assets in their possession.”
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12. This Court has no hesitation to follow the above judgment but the
portion that was relied upon by the learned counsel for the appellant does
not support the case put forth by the learned counsel for the appellant. No
doubt it is true that the consequence of severance of status is considered in
the above judgment. If there is a severance or description of joint family by
partition by other means, the members of the family become tenants in
common of the family properties. If any one of the members of the family
acquired any property after severance of status, the acquisition should be
regarded as the acquisition of the individual and there cannot be a
presumption that the property acquired by an individual should be regarded
as a property of the family. The members of the family after disruption of
joint family status or severance of family is entitled to account for the rents
and profits that are received by the member in possession. The funds in the
hands of that member do not become impressed with any trust in favour of
other members, as it has been repeatedly held by several precedence. The
situation that was considered by the Hon'ble Supreme Court in the above
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judgment has no application to the present facts, wherein it is admitted by
the appellant's counsel that all the properties were acquired by the father
during his life time. Several properties were allotted to him in the family
partition, he had with his brothers in 1955 and the suit properties were
acquired by Pachamuthu Udayar as admitted by the appellant and the
respondents before the Court below. Therefore, the submission of the
learned counsel appearing for the appellant that the Hindu Succession
amendment Act 2005 (Act 39 of 2005) has no application to the facts of the
case, cannot be countenanced in view of the recent judgment of the Hon'ble
Supreme Court. In a recent judgment in Vineeta Sharma Vs. Rakesh
Sharma reported in 2020 [9] SCC 1, a 3 members Bench of Hon'ble
Supreme Court has held as follows:
137. Resultantly, we answer the reference as
under:
137.1. The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after the amendment in the same manner as son with
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same rights and liabilities.
137.2. The rights can be claimed by the
daughter born earlier with effect from 9-9-2005 with
savings as provided in Section 6(1) as to the
disposition or alienation, partition or testamentary
disposition which had taken place before the 20th day
of December, 2004.
137.3. Since the right in coparcenary is by birth,
it is not necessary that father coparcener should be
living as on 9-9-2005.
137.4. The statutory fiction of partition created
by the proviso to Section 6 of the Hindu Succession
Act, 1956 as originally enacted did not bring about
the actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining share
of deceased coparcener when he was survived by a
female heir, of Class I as specified in the Schedule to
the 1956 Act or male relative of such female. The
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provisions of the substituted Section 6 are required to
be given full effect. Notwithstanding that a preliminary
decree has been passed, the daughters are to be given
share in coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, a plea of
oral partition cannot be accepted as the statutory
recognised mode of partition effected by a deed of
partition duly registered under the provisions of the
Registration Act, 1908 or effected by a decree of a
court. However, in exceptional cases where plea of
oral partition is supported by public documents and
partition is finally evinced in the same manner as if it
had been affected (sic effected) by a decree of a court,
it may be accepted. A plea of partition based on oral
evidence alone cannot be accepted and to be rejected
outrightly.
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13.From the above judgment, none of the Wills alleged to have been
executed by the father which should come into effect after his death in 2007
will affect the rights of female heirs to claim their share by birth and
disposition by Wills are not saved. Further that the learned counsel for the
apellants has not challenged the findings of Trial Court regarding proof of
Will under Exs.A5 and A8.
14.The appellant in OS.No.9 of 2010 also prayed for alternative relief,
viz., preliminary decree of partition and separate possession of plaintiff's
5/8th share in all the suit properties. This Court already held that the
appellant is entitled to 1/4th share in all the suit properties as that of each
daughters of Pachamuthu Udayar. Before the Trial Court, the plaintiff in
OS.No.155 of 2013 has not prayed for any relief in respect of the I item, as
properties described in first item and available, are also shown in other
items. However, it is now admitted by the learned counsel for the plaintiff in
OS.No.155 of 2013 that the plaintiff in OS.No.9 of 2005 is also entitled to a
share in all the properties. Therefore, the appellant is entitled to the
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AS. Nos.577 and 575 of 2016
alternative relief of partition of 1/4th share in the properties. Hence, the
appeal in AS.No.577 of 2016 is dismissed and the judgment and decree in
OS.No.155 of 2013 on the file of III Additional District and Sessions Court,
Cuddalore at Vridhachalam is confirmed. Further, the appeal in AS.No.575
of 2016 is also dismissed and the suit in OS.No.9 of 2010, stands dismissed.
No costs.
(S.S.S.R.J.) (A.A.N.J.)
05.01.2023
Speaking Order : Yes / No
Index : Yes / No
pvs/AP
To
1. III Additional District and Sessions Judge,
Cuddalore at Virudhachalam
2. The Section Officer,
V.R.Section, High Court, Madras
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AS. Nos.577 and 575 of 2016
S.S.SUNDAR, J.
and
A.A.NAKKIRAN, J.
pvs/AP
AS. Nos.577 and 575 of 2016
05.01.2023
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