Madras High Court
K.Ashok Kumar vs R.Kapali on 14 June, 2023
A.S.No.395 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE C. KUMARAPPAN
A.S.No.395 of 2015
1.K.Ashok Kumar
2.K.Saravanan
3.K.S.Marudavanan ... Appellants
Vs.
1.R.Kapali
2.Saroja Ammal
3.Bhanumathi
4.Rani
5.Baby
6.Sujatha
7.Radhika
8.R.Rajalakshmi
9.R.Sivaguru ... Respondents
[Respondents 3 to 7 are not necessary
parties in this Appeal]
Prayer : Appeal Suit filed under Section 96 of Code of Civil Procedure
against the judgment and decree dated 10.03.2015 in O.S.No.186 of 2010
on the file of the Principal District Court, Cuddalore.
Page 1 of 16
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For Appellants : Mr.R.Gururaj
R1 : Died
R2 : Refused
For R3 to R7 : Dispensed with
vide (JR (AS))
order dt. 24.01.2023
For R8 & R9 : No appearance
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
Plaintiffs in the suit in O.S.No.186 of 2010 on the file of the Principal
District Court, Cuddalore, are the appellants in the above Appeal.
2.The appellants as plaintiffs filed the suit in O.S.No.186 of 2010 on
the file of the Principal District Court, Cuddalore, for partition and separate
possession of 3/9 share in suit B-Schedule properties and for consequential
reliefs.
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A.S.No.395 of 2015
3.It is the case of appellants/plaintiffs in the plaint that the defendants
1 and 2 are their father and mother respectively; defendants 3 to 7 are their
sisters; defendants 8 and 9 are the purchasers of property from defendants 1
and 2. In the plaint, it is stated that all the properties except Item No.22 are
purchased either by father of 1st defendant, namely Rathinasami Asari, or by
defendants 1 and 2. It is the case of plaintiffs in the plaint that plaintiffs and
defendants 1 to 7 constitute a joint family. However, it is admitted that the
properties were all purchased by Rathinasamy Asari, the father of 1st
defendant, on various times, either in the name of Rathinasamy Asari or in
the name of 2nd defendant or 1st plaintiff. It is stated in the plaint that suit B-
Schedule properties were treated, enjoyed and dealt with as joint family
properties and therefore, stating that the plaintiffs are entitled to have 1/9
share each in all the suit properties, the plaintiffs came forward with the suit.
4.Surprisingly, the 1st defendant, in his written statement, has
indirectly admitted the case of plaintiff. It is the case of 1 st defendant that
defendants 8 and 9, by misrepresentation, obtained the sale deeds from
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A.S.No.395 of 2015
defendants 1 and 2 under the pretext that it is a mortgage deed. Therefore, a
new case is pleaded by 1st defendant that defendants 8 and 9 have
fraudulently created the sale deeds.
5.In the written statement filed by defendants 8 and 9, they have
specifically taken a stand that the suit is engineered by 1 st defendant, who is
the father of plaintiffs, to get illegal gratification, after selling the property in
favour of defendants 8 and 9. The case of contesting defendants is that the
properties are the separate properties of defendants 1 and 2 and that
therefore, the plaintiffs are not entitled to any share in any of the properties
sold in favour of defendants 8 and 9 by 1 st plaintiff, 1st defendant and 2nd
defendant. It is stated that 1st plaintiff along with defendants 1 and 2
executed sale deed dated 18.02.2008 and that defendants 1 and 2 executed
Exs.B20 and B21 dated 18.02.2008 in favour of 9th defendant. It is further
stated that defendants 1 and 2 executed a sale deed in favour of 8 th defendant
under Ex.B23 dated 18.02.2008.
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A.S.No.395 of 2015
6.The trial Court, on the basis of pleadings, framed the following
issues:
i. “Whether the suit properties are joint family properties of
Rathinasamy Asari, Ashok Kumar (1st plaintiff) and 2nd
defendant Saroja Ammal ?
ii. Whether the plaintiffs have got 3/9 shares in the suit B
Schedule properties ?
iii. Whether the sale deeds dated 18.02.2008 are valid and
binding upon the plaintiffs ?
iv. Whether the 8th and 9th defendants have been in absolute,
exclusive possession and enjoyment of the suit properties on
and from 18.02.2011 ?
v. Whether the Court fees have to be paid u/s.37(1) of the
T.N.C.F.Act over the market value of the properties ?
vi. Whether the suit has been properly valued and correct court
fees paid ?
vii.What other reliefs, the plaintiffs are entitled to ?”
7.Before the trial Court, 3rd plaintiff examined himself as P.W.1.
Exs.A1 to A20 were marked on behalf of plaintiffs. 1st defendant and 9th
defendant examined themselves as D.W.1 and D.W.2 respectively. Two
others were also examined as D.W.3 and D.W.4. Exs.B1 to B38 were
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A.S.No.395 of 2015
marked on the side of defendants.
8.The trial Court found that defendants 8 and 9 and other alienees are
in possession of the properties and the plaintiffs and defendants are not in
possession of the properties and therefore, the suit paying fixed Court Fees
under Section 37(2) of Tamil Nadu Court Fees and Suits Valuation Act,
1965, is not maintainable. On the issue whether the suit properties are joint
family properties, the trial Court, after considering the evidence in extenso,
found that the properties are not joint family properties, but self-acquired
properties of defendants 1 and 2. It is admitted that the properties are either
purchased by Rathinasamy Asari or by 1st defendant either in the name of 1st
defendant or in the name of his wife, the 2nd defendant or 1st plaintiff. Since
the documents are standing in the name of defendants 1 and 2, the trial
Court held that the properties are self-acquired properties of defendants 1
and 2 and that therefore, the plaintiffs are not entitled to any share during
the lifetime of defendants 1 and 2. The case of plaintiffs that the properties
were treated as joint family properties by defendants 1 and 2, was
disbelieved by the trial Court and the trial Court held that defendants 8 and
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A.S.No.395 of 2015
9 are the owners who are in exclusive possession and enjoyment of the
properties after 18.02.2008. The sale deeds in favour of defendants 8 and 9
dated 18.02.2008 are held to be valid and binding on the plaintiffs.
9.Aggrieved by the judgment and decree of the trial Court, the
plaintiffs have preferred the above Appeal.
10.Learned counsel appearing for the appellants/plaintiffs submitted
that the trial Court failed to see that all the properties were held, treated and
enjoyed as joint family properties and that the sale deeds executed by
defendants 1 and 2 in favour of defendants 8 and 9 are not for legal
necessity or for valid consideration. Learned counsel further stated that the
sale deeds executed by defendants 1 and 2 are not valid, as the properties
are joint family properties.
11.This Court, having regard to the arguments of learned counsel
appearing for the appellants and the issues framed before the trial Court,
finds that the following points arise for consideration in this Appeal :
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A.S.No.395 of 2015
i. Whether the suit properties are joint family properties of
plaintiffs and defendants 1 to 7 ?
ii. Whether the plaintiffs are entitled to any share in any of the
properties?
12.It is seen from the plaint that only one item of property, namely,
Item No.22 is the property stated to have been purchased by the 1st
defendant in the name of 1st plaintiff by a document dated 16.07.1969.
However, in the plaint, there is no reference to the sale of Item No.22 by 1 st
plaintiff along with defendants 1 and 2. However, this Court finds that the
1st plaintiff has joined with defendants 1 and 2 to sell the property purchased
in the name of 1st plaintiff.
13.All other items were, admittedly, properties purchased by
Rathinasamy Asari, the father of 1st defendant in his name or in the name of
2nd defendant. Absolutely, there is no pleading in the plaint to the effect that
the suit properties were ancestral properties in the hands of Rathinasamy
Asari. In the absence of any specific plea that Rathinasamy Asari had joint
family assets in his hands, the properties purchased by Rathinasamy Asari
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A.S.No.395 of 2015
cannot be presumed to be the properties of joint family. Even assuming the
existence of joint family, it cannot be presumed that the properties are all
ancestral. After the advent of Hindu Succession Act, 1956, the self-acquired
property of a male will devolve only on his Class-1 heirs according to
Section 8 of Hindu Succession Act, 1956. In the absence of a clue either
from pleading or evidence about existence of any joint family nucleus in the
hands of Rathinasamy Asari at the time of commencement of Hindu
Succession Act, 1956, this Court cannot presume existence of joint family or
ancestral properties in the hands of father Rathinasamy Asari. The father
Rathinasamy Asari died only after 1956. All the acquisitions of
Rathinasamy Asari or the properties held by him as self-acquired will go to
his Class-1 heirs according to Section 8 of Hindu Succession Act, 1956. The
1st defendant, being the only son, will get the properties absolutely.
Therefore, the plaintiffs are not entitled to any right in any of the suit
properties. The same will be the position in respect of any property acquired
in the name of 2nd defendant. During lifetime of defendants 1 and 2,
plaintiffs cannot claim any right in any of the properties.
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A.S.No.395 of 2015
14.The case of plaintiffs, even as per the plaint averments, would
indicate that the plaintiffs have admitted the character of suit properties as
self-acquired either by Rathinasamy Asari or by defendants 1 and 2. The
details of acquisition given in the plaint would also indicate that the
properties were acquired either by Rathinasamy Asari or by defendants 1
and 2. Even in the plaint, it is stated that the 1st defendant purchased the
properties not only in his name, but also in the name of his wife, the 2 nd
defendant. In such circumstances, this Court is unable to find a scrap of
paper to support the case of plaintiffs regarding the character of suit
properties as joint family.
15.Recently, we have considered the issue and distinguished the
properties which are described as ancestral, joint family or coparcenery, in
the case of Shanthalakshmi v. Muthusami Gounder (died) & others
[A.S.No.13 of 2009, dated 21.03.2023]. The relevant portion of the
judgment is extracted hereunder :
“12.Before going into the issues this Court finds that the
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parties have some difficulty in understanding the character of
properties. The specific averments in the plaint as well as in
the written statement filed on behalf and defendants 1 and 2
indicate that the parties as well as the counsels appearing for
them before the Trial Court have some confusion in
understanding the character of suit properties even on the
admitted facts. Hence, this Court is inclined to discuss
position prior to Hindu Succession Act, 1956 and post 1956
Act. Before Hindu Succession Act, 1956, when a male member
dies, his property will devolve on his son, grandson and great
grandson and they acquire an interest in coparcenary
property from the moment of their birth. On the death of a
coparcener his interest in the coparcenery property pass on to
other coparceners by survivorship.
13.After 1956, section 6 deals with the devolution of
property of a male Hindu having undivided interest in a co-
parcenary [joint family]. Section 8 deals with devolution of
interest in respect of propeties of a male Hindu who die after
1956 Act. As per section 6, the undivided interest of
coparcenery of a male Hindu devolves on other coparceners
by survivorship if he has no female heirs.
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A.S.No.395 of 2015
14.Going by Law Lexicon by P.Ramanatha Aiyar, the
term ‘ancestral’ is derived from the word ‘ancestor’. One who
has preceded another in a direct line of descent or a lineal
ascendant is normally called an ancestor. It is well accepted
that the term ‘ancestor’ differs from the term predecessor. It
has been judicially interpreted that the term ancestor in its
ordinary and natural meaning connotes a progenitor. In
Hindu Law, all properties which a man inherits from a direct
male ancestor, not exceeding third degree higher than himself
is ancestral property. Therefore, the term ancestral property
would also mean that the property derived from a father or a
grandfather or great grandfather. In other words, a property
inherited from a direct male ancestor is also an ancestral
property. However, a coparcenary is a property shared by
male members of joint family where there is unity of title,
possession and interest. A coparcenary property can also be
called as ancestral property. However, every ancestral
property need not be a coparcenary property after the advent
of Hindu Succession Act, 1956. Under section 8 of Hindu
Succession Act, the self acquired property of a male Hindu
after his death devolves on his class I heirs namely widow,
son, daughter and mother. The property devolved on a son
under section 8 may also be called as ancestral but it will be
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A.S.No.395 of 2015
his absolute property. A Hindu Joint family is a larger body
than a Hindu Coparcenery because a Joint Family consists of
all persons lineally descended from a common ancestor and
includes female heirs namely wife and daughter [before 1956
unmarried daughters] of the common ancestor.
15.A Full Bench of this Court in the case of
Commissioner of Income Tax Vs. P.L.Karuppan Chettiar
reported in AIR 1979 Mad 1, has considered the character of
the properties inherited by a son from his divided father. The
Hon’ble Full Bench of this Court that in a case where the joint
family properties were divided between the father and his son
in 1954 before the commencement of Hindu Succession Act,
1956, considered the character of separate properties of
father who died after 1956. After the death of father, the
separate properties which were allotted to the father in the
1954 partition, was held to be separate properties of son by
virtue of Section 8 of the Hindu Succession Act. The view
taken by the Full Bench of this Court was also upheld by the
Hon’ble Supreme Court and was reiterated by the Hon’ble
Supreme Court in the case of Commissioner of Income Tax Vs.
P.L.Karuppan Chettiar reported in 1993 Supp [1] SCC 580.”
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A.S.No.395 of 2015
16.In the absence of any document or evidence to show that the family
was possessed of any ancestral nucleus, this Court is unable to accept the
case of plaintiffs that the properties are joint family properties. Having
regard to the nature of pleadings and the stand taken by the 1 st defendant in
the written statement, it appears that the suit has been engineered by the 1st
defendant. Therefore, this Court finds that the plaintiffs are not entitled to
any share in any of the suit properties. Accordingly, both the points raised
in this Appeal are answered against the plaintiffs.
17.As a result, this Appeal is dismissed with costs.
(S.S.S.R., J.) (C.K., J.)
14.06.2023
mkn
Internet : Yes
Index : Yes / No
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A.S.No.395 of 2015
To
1.The Principal District Judge,
Cuddalore.
2.The Section Officer, | with a direction to return
VR Section, High Court, | the records to the Court below,
Chennai. | if any, forthwith
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A.S.No.395 of 2015
S.S. SUNDAR, J.
and
C.KUMARAPPAN, J.
mkn
A.S.No.395 of 2015
14.06.2023
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