Madras High Court
R.Gajendran [Died vs R.Shanmugam [Deceased on 1 March, 2023
OSA.No.73/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE P.B.BALAJI
OSA.No.73/2014
1.R.Gajendran [Died]
2.G.Kanmani
3.N.Thenmozhi
4.G.Kayalvizhi
5.G.Anand Raj .. Appellants
**Appellants 2 to 5 brought on record as
LRs of deceased sole appellant vide order
dated 24.11.2022 made in CMP.No.18791
and 18789/2022 in OSA.No.73/2014
Vs.
1.R.Shanmugam [Deceased]
2.G.Kalaiarasan
3.G.Dilli
4.J.Manimaran
5.J.Arivuselvan
6.J.Deenadayalan
7.M.Rajasekaran
https://www.mhc.tn.gov.in/judis 1
OSA.No.73/2014
8.M.Chandrasekaran
9.Malliga Shanmugam
10.Anuradha Rajasekar
11.Menaka Panidan .. Respondents
**RR9 to 11 brought on record as LRs of
deceased 1st respondent vide order dated
13.02.2017 made in CMP.Nos.1961 to 1963/2017
in OSA.No.73/2014
Prayer:- Original Side Appeal filed under Order 36 Rule 1 of O.S.Rules
read with Section 15 of Letters Patent against the judgment and decree of
the learned Single Judge of this Court dated 21.06.2013 made in
CS.No.408/2008.
For Appellants : Mr.J.Hariharan for
M/s.KV Law Firm
For RR 2 to 8 & 11 : No appearance
R10 : No such person
For R9 : Mr.D.Prasanth for
Mr.S.Senthilnathan
https://www.mhc.tn.gov.in/judis 2
OSA.No.73/2014
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) The 1st defendant in the suit in OS.No.108/2008, as the appellant,
filed the above Original Side Appeal. Pending Appeal, the 1st
defendant by name R.Gajendran, died and hence, appellants 2 to 5
were brought on record as the legal representatives of the deceased
sole appellant.
(2) It is seen that the 1st respondent/plaintiff by name Shanmugam, also
died during pendency of the appeal and therefore, respondents 9 to
11 were brought on record as legal representatives of the deceased
1st respondent.
(3) Brief facts that are necessary for the disposal of this Original Side
Appeal are as follows:-
(4) The deceased 1st appellant and the deceased 1st respondent herein
are the sons of one Mr.V.Rajamanickam. The wife of
Mr.V.Rajamanickam, namely, Smt.Sivabhushanammal, mother of
the 1st appellant and 1st respondent herein, died on 05.10.2005.
Mr.V.Rajamanickam died on 10.09.1983 leaving behind his wife
Sivabhushanammal, plaintiff/1st respondent herein and the 1st
OSA.No.73/2014
defendant/1st appellant herein and two other daughters by name
Kanchana, Vijayakumari and another son by name Ganesan. The
sister of the deceased 1st appellant by name Kanchana died on
10.10.2003 leaving behind defendants 4 to 6 as her legal heirs in
the suit. Smt.Vijayakumari, also died on 28.05.1997 leaving
behind defendants 7 and 8 as her legal heirs and the brother of the
deceased 1st appellant, namely, Ganesan, died on 17.04.2007
leaving behind defendants 2 and 3.
(5) The suit property is an extent of 1560 sq.ft. with the building in
Kanniappa Nagar. The deceased / 1st respondent as plaintiff filed
the suit for partition and allotment of 1/5th share in the suit schedule
property and for consequential reliefs. It is admitted that the suit
property namely Plot No.223 in Kanniappa Nagar was originally
allotted in favour of father of appellants Mr.V.Rajamanickam by
the Tamil Nadu Slum Clearance Board. It is stated by the 1 st
respondent that the entire amount due and payable to TNSCB was
paid by Mr.V.Rajamanickam. Since he died on 10.09.1983 before
even getting the Sale Deed, it is stated by the plaintiff that the Sale
OSA.No.73/2014
Deed dated 10.04.1997 was executed in favour of the mother of the
appellant and 1st respondent by name Mrs.Sivabhushanammal. It is
admitted that the Sale Deed in favour of the appellant's mother was
registered as Doc.No.643/1997. Stating that the mother of the 1 st
appellant and 1st respondent is not the absolute owner of the
property and that the property devolved on all the children of
Mr.V.Rajamanickam, the suit came to be filed for partition of
plaintiff's 1/5th share.
(6) The suit was contested by the defendant on the ground that the
property belonged to Mrs.Sivabhushanammal exclusively by virtue
of the Sale Deed dated 10.04.1997 and that she had executed two
Settlement Deeds in favour of the 1st defendant as well as in favour
of her another son by name Ganesan on 16.06.2005. It is only by
virtue of the Settlement Deeds alleged to have been executed by
Mrs.Sivabhushanammal, the deceased 1st appellant/1st defendant
claimed exclusive title in respect of the suit property along with his
brother Ganesan and contested the suit for partition.
(7) The learned Single Judge of this Court, after considering the entire
OSA.No.73/2014
evidence, came to the conclusion that the properties is not the
exclusive property of Mrs.Sivabhushanammal and that the Sale
Deed obtained by her from TNSCB will not cloth her with absolute
right as the original allotment was in favour of the father and the
entire consideration was paid by the father Mr.V.Rajamanickam
during his lifetime. The learned Judge further held that the
Settlement Deeds dated 16.06.2005 executed by the mother
Mrs.Sivabhushanammal in favour of Ganesan and the appellant
herein are invalid. In view of the findings on the issue regarding
the title as well as the validity of the two Settlement Deeds, the
learned Judge held that the plaintiff is entitled to 1/5th share in the
suit property. Aggrieved by the judgment and decree made in
CS.No.408/2008 by the learned Single Judge, the 1st defendant hs
preferred the above appeal.
(8) This Court heard the learned counsel for the appellants and the
learned counsel for the 9th respondent and also perused the
materials placed.
(9) The learned counsel for the appellants is unable to demonstrate
OSA.No.73/2014
before this Court, how the suit property could be claimed by the
mother as her exclusive property. It is not in dispute that original
allotment of property by TNSCB was in favour of
Mr.V.Rajamanickam and the said allotment was in the year 1961.
Before the Trial Court, no evidence was let in to show that the
mother Mrs.Sivabhushanammal had obtained the Sale Deed in her
individual capacity without reference to the previous allotment in
favour of her husband Mr.V.Rajamanickam. The Sale Deed was in
recognition of the pre-existing right of Mr.V.Rajamanickam and
there is no evidence to show that the property could be treated as
the absolute property of Mrs.Sivabhushanammal. As the wife and
senior member of the family of Mr.V.Rajamanickam, she is
supposed to hold the property only in trust for benefit of all the
legal heirs of Sri.V.Rajamanickam. This Court has no reasons to
interfere with the finding of the learned Judge in CS.No.408/2008
holding that the suit property is the absolute property of
Mr.V.Rajamanickam, father of plaintiff.
(10) The execution of Settlement Deeds is not seriously disputed. The
OSA.No.73/2014
learned Judge held that the Settlement Deeds cannot be given
effect to as the mother had no right in the property. However,
under Section 8 of the Hindu Succession Act, wife of
Mr.V.Rajamanickam, is also a heir entitled to equal share along
with the children. Therefore, the Settlement Deeds are valid to the
extent of 1/6th share of the mother, namely,
Mrs.Sivabhushanammal. The plaintiff is therefore, entitled to only
1/6th share in the suit property. Since settlement is held to be valid
to the extent of mother's share, the appellants and the legal
representatives of Ganesan are entitled to 1/6th share in accordance
with the Settlement Deeds. From the Settlement Deeds, it is seen
that the mother has been given 880 sq.ft., to the appellant and an
extent of 680 sq.ft., to Ganesan. This 880 sq.ft., represents 56.4%
and 680 sq.ft., represents 43.6%. The legal heirs of settlee are
entitled to the same proportion/percentage out of settlor's 1/6th
share.
(11) Since Settlement Deeds are held to be valid in respect of 1/6th share
OSA.No.73/2014
of Mrs.Sivabhushanammal, the plaintiff is entitled to 1/6th share.
(12) In the result, the Original Side Appeal is partly allowed and the
judgment and decree in CS.No.408/2008 is modified by granting a
preliminary decree in respect of deceased 1st respondent/plaintiff's
1/6th share in the suit property. No costs.
[SSSRJ] [PBBJ]
01.03.2023
AP
Internet : Yes
To
The Section Officer,
VR Section, High Court
Chennai.
OSA.No.73/2014
S.S.SUNDAR, J.,
AND
P.B.BALAJI, J.
AP
OSA.No.73/2014
01.03.2023
https://www.mhc.tn.gov.in/judis 10
