Madras High Court
Thiru Jaichandran vs Thiru.V.Shyam Sundar on 13 June, 2023
A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.06.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
A.S.No.1177 of 2015
and
Cross Obj.No.110 of 2022
A.S.No.1177 of 2015
Thiru Jaichandran
Son of Venkatasubramaniam .. Appellant
-vs-
1. Thiru.V.Shyam Sundar
Son of Venkatasubramaniam
2. Thiru.Jothi Prasad
Son of Venkatasubramaniam
3. Thiru.V.Sekar
Son of Venkatasubramaniam
4. Thiru.Udayasankar
Son of Venkatasubramaniam
5. Thiru.Swaroop Sundar
Son of Venkatasubramaniam
1/12
https://www.mhc.tn.gov.in/judis
A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
6. Tmt.J.Sudha
Wife of Jayabaskar
7. Tmt.M.Jayashree
Wife of Muthuvenkatakrishnan
8. Tmt.Alamelu
Wife of Jaichandran
9. The State of Tamil Nadu
represented by Collector of Cuddalore
Office of the Collectorate, Cuddalore
10.The Regional Transport Officer
Cuddalore
Office of the Regional Transport Office
Cuddalore, Nellikuppam Road, Cuddalore .. Respondents
Memorandum of Grounds of First Appeal filed under Order XLI,
Rule 1 read with Section 96 of Civil Procedure Code, against the judgment
and decree dated 08.07.2015 made in O.S.No.2 of 2008 on the file of the III
Additional District and Sessions Judge, Cuddalore at Vridhachalam.
For Appellant :: Mrs.AL.Ganthimathi
Senior Counsel for
Mr.L.Palanimuthu
For Respondents :: Mr.M.L.Ramesh for R6 & R7
Mr.R.Venkatajalapathy for R4
No appearance for R1 to R3,
R5, R8 to R10
https://www.mhc.tn.gov.in/judis
A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
Cross Obj.No.110 of 2022
1. Tmt.J.Sudha
2. Tmt.M.Jayashree .. Cross Objectors
-vs-
1. Thiru.Jaichandran
2. Thiru.V.Shyam Sundar
3. Thiru.Jothi Prasad
4. Thiru.V.Sekar
5. Thiru.Udayasankar
6. Thiru.Swaroop Sundar
7. Tmt.Alamelu
8. The State of Tamil Nadu
represented by Collector
Cuddalore
9. The Regional Transport Officer
Cuddalore .. Respondents
Memorandum of Grounds of Cross Objection filed under Order XLI,
Rule 22 of the Code of Civil Procedure, against the judgment and decree
dated 08.07.2015 made in O.S.No.2 of 2008 on the file of the III Additional
District and Sessions Judge, Cuddalore at Vridhachalam.
For Cross Objectors :: Mr.M.L.Ramesh
For Respondents :: Mrs.AL.Ganthimathi
Senior Counsel for
Mr.L.Palanimuthu for R1
No appearance for R2 to R9
https://www.mhc.tn.gov.in/judis
A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
COMMON JUDGMENT
(Judgment of the Court was made by S.S.SUNDAR, J.)
The fourth defendant in the suit, O.S.No.2 of 2008 on the file of the
III Additional District and Sessions Court, Cuddalore at Vridhachalam is the
appellant in the first appeal. Defendant Nos.6 and 7 have filed the Cross
Objection No.110 of 2022 disputing the quantum of share declared in their
favour by the trial Court in O.S.No.2 of 2008. It is submitted by all the
counsels that the appeal is confined to item No.10 in the suit schedule and
the cross objection is to resolve the shares of defendants 6 and 7.
2. The brief facts that are necessary for the disposal of the first appeal
and the cross objection are as follows. The first respondent in the first
appeal, as the plaintiff, filed the suit for partition and separate possession of
the 8/42 share in all the suit properties and for future mesne profits. It is the
case of the first respondent, as plaintiff in the plaint, that the plaintiff and
the defendants 1 to 5 are the undivided sons of one Venkatasubramaniam
and they constituted a Hindu Undivided Family. It is the plaintiff's further
case that the family possessed of considerable properties either inherited
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
from the father of Venkatasubramaniam or acquired by
Venkatasubramaniam from out of the income from the ancestral properties.
It is seen from the plaint that the two bus routes plying on the routes
Kallakurichi to Cuddalore and Vridhachalam to Ulundurpet along with the
buses are described as suit item No.10 of the schedule. The workshop and
shed is described as item No.11. A sum of Rs.65,00,000/-, which was lying
in fixed deposits in the name of the father, is also shown as item No.12. Item
Nos.39 to 47 are the immovable properties shown in the schedule in
different town survey fields. The first appeal is in respect of item No.10 of
the suit schedule, which is described as two buses with bus routes plying
between Kallakurichi and Cuddalore and between Vridhachalam and
Ulundurpet. It is the specific case of plaintiff in the plaint that his father
Venkatasubramaniam died intestate on 25.01.2004 and the plaintiff and the
defendants 2 to 5 are entitled to an undivided 1/6 th share. Since the
defendants 6 & 7 are the sisters of the plaintiff and the daughters of Sri
Venkatasubramaniam, the plaintiff claimed that they are entitled to 1/42
share each and all others, except the first defendant, are entitled to 8/42
share. It is the further case of the plaintiff that the first defendant, who is
also one of the brothers of the plaintiff, executed a release deed on
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
05.12.1988 releasing his interest in the joint family properties for a
consideration.
3. It is the case of the plaintiff that the fourth defendant had produced
fabricated document as if the plaintiff and the other defendants gave no
objections for transfer of bus permits in respect of the two buses shown in
item No.10 in suit schedule, which stood in the name of the father
Venkatasubramaniam, in favour of appellant. It is also stated that the
permits for the two routes originally stood in the name of the father
Venkatasubramaniam and that on his death on 25.01.2004, the plaintiff and
the defendants 2 to 7 are entitled to have the permits for the routes
transferred in their names. It is stated that on account of the forgery by the
fourth defendant, the permits of the two vehicles were transferred in the
name of the fourth defendant, the appellant. In the plaint, there was a
reference to the criminal complaint against the fourth defendant for
committing forgery without the knowledge of the plaintiff and the other
defendants.
4. The fourth defendant filed his written statement denying the above
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
version of the plaintiff. As regards suit item No.10, it is stated that as per
the document signed by plaintiff and defendants, the permits were
transferred and later the property described in item No.10 was sold in favour
of eighth defendant. The trial Court, on consideration of both oral and
documentary evidence, decreed the suit declaring 64/336 shares of plaintiff
and defendants 2 to 5 and 8/336 shares of defendants 6 and 7 in respect of
items 1 to 11, 48 and 49. Aggrieved thereby, the first appeal and the cross
objection have been filed by the fourth defendant and the defendants 6 & 7
respectively before this Court. As stated earlier, the first appeal is restricted
to suit item 10 and the cross appeal is to resolve the quantum of shares to be
allotted to parties and to find whether defendants 6 and 7 are entitled to
equal share.
5. We have heard the learned counsel appearing for the parties and
perused the materials available on record.
6. From the reading of the whole pleadings, the evidence adduced by
the parties and the submissions of learned Senior Counsel appearing for
appellant and counsels for respondents, the only issue that arises for
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
consideration before this Court in the first appeal is whether the plaintiff is
entitled to a decree of partition in respect of item 10 in suit schedule and
whether the defendants 6 and 7, the sisters of plaintiff, are entitled to equal
share by virtue of Hindu Succession (Amendment) Act, 2005?
7. It is admitted that the appellant was convicted for the offence of
committing forgery in getting the two bus permits transferred in his name on
the basis of alleged no objection letters given by other sharers including
plaintiff. However, the order of conviction is now under challenge before
the Hon'ble Supreme Court. It is also admitted that the two buses and the
permits originally stood in the name of the father Venkatasubramaniam.
Though the first defendant has released his right in respect of the properties
of the joint family, no other person has given any release deed in favour of
the plaintiff or appellant relinquishing his/her rights in any of the items of
the suit properties. Admittedly, the father Venkatasubramaniam died
intestate. Merely because the appellant had transferred the permits in his
name on the basis of no objection letters alleged to have been given by the
plaintiff and the other defendants, the plaintiff cannot claim exclusive
ownership in respect of item No.10. Further, the appellant has failed to
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
prove that the plaintiff and the other defendants had voluntarily given the no
objection letters following the transfer of buses and the bus permits in his
favour. Admittedly, the letter stated to have been issued by the plaintiff and
the other defendants is not marked as a document in this Court. At least a
certified copy of the alleged letter marked in criminal proceedings could
have been produced. The terms based on which such no objection
certificate was obtained from the plaintiff and the other defendants is not
even spoken to by the appellant in the written statement. Even though the
conveyance is not required by a written instrument, the transfer of
ownership in respect of movable properties cannot be presumed unless there
is actual transfer for consideration or by delivery with an intention to
transfer ownership for a price paid or promised as per Section 54 of Transfer
of Property Act. In the absence of proper pleading and evidence, this Court
is unable to countenance the arguments of the learned counsel appearing for
the appellant. Mere pleading that the vehicles and permits were transferred,
there is no whisper how the transfer was effected. Hence the appellant failed
to prove his exclusive ownership in respect of item 10.
8. The second issue that arises for consideration is whether the
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
defendants 6 & 7 are entitled to equal share as that of the plaintiff and
therefore the cross objection is to be allowed?
9. The cross objection is filed by the two daughters of
Venkatasubramaniam on the basis that they are also entitled to equal share.
Even though the trial Court has held that the defendants 6 & 7 got married
prior to coming into force of Section 29-A of the Hindu Succession (Tamil
Nadu Amendment) Act, 1989 (Act 1 of 1990), the trial Court has failed to
consider the legal implication pursuant to the advent of the Hindu
Succession (Amendment) Act, 2005 substituting Section 6 of the Central
Act, 2005 (Act 39 of 2005). The Hon'ble Supreme Court in Vineeta
Sharma v. Rakesh Sharma and others, 2020 (5) L.W.300 has now clarified
that the daughters are entitled to a share in the joint family properties as that
of a son irrespective of their birth and death of the father before or after the
commencement of the Act (Act 39 of 2005).
10. In view of the conclusions we have reached, the first appeal is
dismissed. However, the cross objection is allowed holding that the
defendants 6 & 7 are also entitled to 1/7th share each in respect of all the
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A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
properties for which the suit was decreed. As a result, the judgment and
decree of the trial Court are modified by holding that the plaintiff is entitled
to 1/7th share in suit items 1 to 11, 48 and 49. The defendants 6 & 7 are also
entitled to 1/7th share each subject to payment of Court fee.
11. With the above modification, the first appeal and the cross
objection are disposed of. There shall be no order as to costs.
Index : yes/no (S.S.S.R.J.,) (C.K.J.,)
Neutral Citation : yes/no 13.06.2023
ss
To
1. The III Additional District & Sessions Judge
Cuddalore at Vridhachalam
https://www.mhc.tn.gov.in/judis
A.S.No.1177 of 2015
& Cross Obj.No.110 of 2022
S.S.SUNDAR, J.
and
C.KUMARAPPAN,J.
ss
A.S.No.1177 of 2015 &
Cross Obj.No.110 of 2022
13.06.2023
https://www.mhc.tn.gov.in/judis
