Madras High Court
C.Devarajan vs Anjalai on 8 June, 2023
S.A.No.426 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2023
CORAM
MR.JUSTICE N.SESHASAYEE
S.A.No.426 of 2020
and C.M.P.No.9086 of 2020
C.Devarajan
... Appellant
Vs.
1.Anjalai
2.Sivakumar
3.Rajeswari
4.Vinayagamurthy
5.Ramajayam
6.Kannammal
7.Devasi @ Devasundari
8.Krishnaveni
9.Seetha
10.The Sub Registrar,
Sub Registrar Office,
Thellar,
Vandavasi Taluk,
Tiruvannamalai District. ... Respondents
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.426 of 2020
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, seeking to set aside the judgement and decree dated 04.01.2020 made
in A.S.No.25 of 2017 on the file of the Additional District Court (FTC),
Arani (A.S.No.09 of 2015 - District Court, Tiruvannamalai) confirming the
judgement and decree dated 04.07.2014 made in O.S.No.30 of 2007 on the
file of the Sub Court, Cheyyar.
For Appellant : Mr.N.Manoharan
For Respondents : Mr.S.P.Karthik
Government Advocate
for R10
No Appearance
for R1 to R8
Unclaimed - R9
JUDGMENT
The second defendant in O.S.No.30/2007 on the file of Sub Court, Cheyyar,
which was laid for partition of five items of properties, is the appellant. The
suit was concurrently decreed by the Courts below.
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S.A.No.426 of 2020
2. The brief facts of the case are :
● The subject matter of the suit for partition are five in number, and
barring item No.4, others are landed properties. According to the
plaintiff, his father Chinnasamy was married twice, first to his mother
Ponnammal, and after her demise, he married the first defendant
Kannammal, through whom he had four children who are arrayed as
defendants 2 to 5. Of them, the second defendant alone is his son and
rest are daughters.
● On 04.02.1972, under Ext.A1, Chinnasamy and his brothers had
executed a deed of partition whereunder the B-schedule property
came to be allotted to the share of Chinnasamy. Chinnasamy had
alienated this property and the proceeds of this sale were utilised for
the purchase of Item No.5 under Ext.A2, and Items 1 to 3 under
Ext.A3, dated 10.081974.
● Claiming that the entire properties are ancestral properties, the
plaintiff laid a suit for partition of his 7/18 share which is comprised
https://www.mhc.tn.gov.in/judis
S.A.No.426 of 2020
of his own independent 1/3 share plus another fractional share of the
share allotted to his father in the notional partition in terms of Section
6 of the Hindu Succession Act, as was then in vogue sometime in
2004 when Chinnasamy died.
3. The suit was resisted essentially by the second defendant, the step-brother
of the plaintiff. He preferred the following contentions :
● All the properties are the self-acquired properties of Chinnasamy,
and the allegation that they are the ancestral properties in his hands
is denied.
● While so, on 02.04.1997, Chinnasamy executed Ext.B1 Will,
whereunder he bequeathed Items 1 to 4 to the second defendant,
and the fifth item was bequeathed for life to his wife, the first
defendant in the suit, and the remainder to the second defendant.
This Will was later superseded by a settlement deed (Ext.B2) dated
22.05.2002, whereunder Chinnasamy had settled all the five items
of immovable properties to the second defendant.
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S.A.No.426 of 2020
● There are other items of immovable properties which are not
included in the suit, and therefore, the suit is bad for seeking
partial partition.
4.1 The suit went to trial, and before the trial Court, both sides adduced oral
and documentary evidence. During the pendency of the suit, the plaintiff
passed away and his heirs were impleaded as additional plaintiffs.
4.2 During trial, the plaintiff's son Shivakumar (P3) was examined as P.W.1.
Besides whom, they examined a certain Munusamy as P.W.2, and they
produced Exts.A1 to Ext.A4. For the defendants, both D1 and D2 examined
themselves respectively as D.W.2 and D.W.1, and they produced Ext.B1 to
Ext.B4.
5. Considering the evidence before it, the trial Court decreed the suit and its
line of reasoning are :
(a) Neither Ext.B1 Will nor Ext.B2 settlement deed were duly proved
by examining the attesting witnesses.
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S.A.No.426 of 2020
(b) Secondly, the suit properties are not self acquired properties.
Challenging the same, the 2nd defendant is before this Court.
6. This Second Appeal is admitted for considering the following Substantial
Questions of Law:
i) "Whether the Courts below were right in
rejecting the claim of the defendant based on Ex.B2,
settlement deed, dated 22.05.2002 on the ground, the
same has not been proved in accordance with law by
examining an attesting witness more so, when execution
of the said document by Chinnasamy was not specifically
denied ?"
ii) "Whether the Courts below were right in
concluding that the suit properties were purchased out
of the surplus income possessed by Chinnasamy and
earned by him from and out of the property allotted to
him under Ex.A1, partition deed dated 04.02.1972 ?"
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S.A.No.426 of 2020
7.Learned counsel for the appellant / 2nd defendant submitted that when the
defendants had pleaded about the settlement deed, in fitness of things the
plaintiff ought to have filed his rejoinder under Order VIII Rule 9 C.P.C.,
and when he was not specifically denied, Order VIII Rule 5 C.P.C., will step
in. Hence, the settlement deed must be considered to have been admitted.
7.1 Turning to the second aspect, the learned counsel submitted that the
categorical case of the plaintiff is that the property which Chinnasamy had
obtained under Ex.A1, partition was sold and the proceeds of the sale was
utilized for the purchase of the properties covered under Ex.A2 and Ex.A3.
The plaintiff had not produced any documents to show the nexus between
the alleged sale of the property by Chinnasamy under Ex.A1 and the
properties purchased by him under Ex.A2 and Ex.A3. There is no
presumption in law that merely because a Hindu male possesses ancestral
property, the property he purchased will also assume the character of
ancestral property.
https://www.mhc.tn.gov.in/judis
S.A.No.426 of 2020
8.Prima facie there is some merit in the submissions of the learned counsel
on both the aspects that he argued. The respondents have been served, but
they did not chose to enter appearance.
9.Turning to the proof of the settlement deed, this Court deems it
appropriate to grant the appellant an opportunity to prove it. Hence, it
chooses to remand the matter back to the First Appellate Court. The
appellant is also free to advance the aspect on law as to the character of the
property covered under Ex.A2 and Ex.A3.
10.1 In conclusion, this appeal is allowed and the decree of the First
Appellate Court in A.S.No.25 of 2017, dated 04.01.2020 is set aside and the
matter is remanded back to the First Appellate Court for considering the
aspects herein above indicated. Both sides will also have the right to
produce such additional evidence as may be relevant. No Costs.
Consequently, the connected miscellaneous petition is closed.
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S.A.No.426 of 2020
10.2 The First Appellate Court is directed to dispose of the appeal within a
period of four (4) months from the date of receipt of a copy of this order.
The parties are required to appear before the First Appellate Court on
05.07.2023. Since the respondents did not appear before this Court today,
this Court requires the First Appellate Court to issue Court notice to them
and on their counsel, if any available.
08.06.2023
Anu
Index : yes / no
Internet : yes / no
Speaking / Non Speaking order
To.
1.The Additional District Court (FTC), Arani
2.The Sub Court, Cheyyar.
3.The Sub Registrar,
Sub Registrar Office,
Thellar,
Vandavasi Taluk,
Tiruvannamalai District.
https://www.mhc.tn.gov.in/judis
S.A.No.426 of 2020
N.SESHASAYEE, J.
Anu
S.A.No.426 of 2020
and C.M.P.No.9086 of 2020
08.06.2023
https://www.mhc.tn.gov.in/judis
