Madras High Court
Annamani vs V.Pandian on 13 March, 2023
AS. No.296 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 13.03.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE P.B.BALAJI
AS. No.296 of 2013
and CMP.Nos.20673 and 17697 of 2022
and MP.No.1 of 2013
Annamani .. Appellant/petitioner
Versus
A.Vedachala Naicker (died)
1. V.Pandian
2. A.Madhialagan
3. M.Tamilarasi
4. J.Lakshmi
5. B.Kalaiselvi
6. Mohanavalli
7. Minor Harikrishnan
8. Minor Santhosh Kumar
(Minors are rep. by their mother and
natural guardian 6th respondent Mohanavalli) .. Respondents/Respondents
PRAYER in AS.No.296 of 2013: First Appeal filed under Order 41 Rule 1
with Section 96 of C.P.C., against the judgment and decree dated 18.02.2013
made in OS.No.72 of 2006 on the file of the III Additional District Judge,
Poonamallee.
https://www.mhc.tn.gov.in/judis
1 / 13
AS. No.296 of 2013
Prayer in CMP.Nos.20673 and 17697 of 2022 : Petitions filed under Order
41 Rule 27 of CPC to permit the petitioner to produce certain documents as
additional documents on the plaintiff side and mark them as Ex.A19 to A24
and Ex.A25 to A30, respectively.
For appellant/petitioner : Mrs.G.Thilakavathy, Senior Counsel
for M/s.S.Sai Sathya Jith
For respondents/respondents
for RR1 & 4 : No Appearance
for RR2, 3, 5 to 8 : Mr.V.Raghavachari, Senior Counsel
for Mr.K.Pasupathy
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J)
The plaintiff in the suit in OS.No.72 of 2006 on the file of the III
Additional District Court, Tiruvallur, is the appellant in the above appeal. The
suit is for partition of appellant's 1/7th share in suit 'A' and 'B' schedule
properties and for future mesne profits.
2. The first defendant, viz., A.Vedhachala Naicker, is the father of
plaintiff. The plaintiff and defendants 4 to 6 are the daughters of
A.Vedhachala Naicker and the defendants 2, 3 and one V.Raji are his sons.
https://www.mhc.tn.gov.in/judis
2 / 13
AS. No.296 of 2013
The seventh defendant is the wife of the deceased V.Raji and defendants 8 and
9 are the minor sons of V.Raji. It is the case of the appellant/plaintiff that a
joint family consisting of the plaintiff and the defendants are owning several
ancestral properties and some of the properties shown in the suit schedule were
acquired from the joint family nucleus.
3. In the plaint, it is contended by the plaintiff that the plaintiff and the
sixth defendant, got married after the enactment of the Hindu Succession
(Amendment Act of 1989) and hence, they are entitled to get equal share in the
joint family properties along with the sons of A.Vedhachala Naicker. In the
original plaint, the plaintiff claimed 1/6th share in the suit A-schedule and
1/8th share in 'B' schedule properties. The suit A-schedule properties consists
of 5 items and the suit B-schedule property is a sum of Rs.3 crores. It is the
case of plaintiff that the mother of plaintiff was owning a property in
Washermanpet, Chennai and that the first defendant further sold the property
and purchased 4 acres of land at Goparasanallur near Poonamallee. It is the
further case of plaintiff that the said land was sold for a sum of Rs.27,00,000/-
by the first defendant in 1996 and that said sum is augmented to Rs.3 crores,
which is shown as 'B' schedule. The first defendant died pending suit on
05.12.2009. Thereafter, the plaint was amended and by referring to Hindu
https://www.mhc.tn.gov.in/judis
3 / 13
AS. No.296 of 2013
Succession Amendment Act, 2005, the plaintiff claimed 1/7th share in all the
suit 'A' and 'B' schedule properties on the ground that all the daughters are
entitled to equal share in the joint family properties.
4. The suit was contested by the defendants 1 to 4 and 6 to 9 mainly on
the ground that the suit properties were purchased by the first defendant out of
his own funds pursuant to the decree dated 05.09.1961 passed by the
Subordinate Judge, Chengalpattu in OS.No.72 of 1960.
5. It is contended that item I of A-schedule properties to an extent of
3.80 acres was obtained by the first defendant pursuant to the decree dated
05.09.1961 in OS.No.72 of 1960, which was filed by him for specific
performance of agreement of sale. The suit second item in A-Schedule is a
small extent of land and it is contended that the said property was purchased
by the first defendant out of his own funds. In respect of items 3 and 4 of the
suit A-schedule properties, it is contended by the defendants that they are self
acquired properties of A.Vedhachala Naicker. In respect of the fifth item, it is
admitted by the defendants that a property measuring 12 cents was allotted to
the first defendant by a partition deed. It is contended that out of the 12 cents,
the first defendant sold 6 cents of land to a third party and in the remaining 6
https://www.mhc.tn.gov.in/judis
4 / 13
AS. No.296 of 2013
cents, an extent of 3 cents was settled by the first defendant in favour of one of
his daughter, viz., fourth defendant by a settlement deed. It is further stated
that the remaining 3 cents of land was in the possession and enjoyment of the
first defendant. As regards first item in 'A' schedule, it is stated that the first
defendant sold an extent of 3.30 Acres to a third party and that the remaining
50 cents was settled in favour of all the sons and daughters including plaintiff
who was given 2502 sq.ft. Even in respect of third item in suit 'A', the
defendants pleaded similar settlement in favour of the defendants excluding
plaintiff.
6. The Trial Court on the basis of the pleadings framed the following
issues:
1. Whether the plaintiff is entitled to partition for 1/7th share in suit 'A'
schedule property?
2. Whether the plaintiff is entitled to partition for 1/7th share in the B
schedule property?
3. Whether the plaintiff is entitled for future mesne profits at the rate of
Rs.10,000/- per annum from the date of plaint till the date of deliver as
prayed for?
4. Whether the plaintiff is entitled for permanent injunction as sought for
in the suit?
5. To what other relief the plaintiff is entitled to?
https://www.mhc.tn.gov.in/judis
5 / 13
AS. No.296 of 2013
7. Before the Trial Court, the plaintiff examined herself as PW1 and
marked Exs.A1 to A18. On behalf of the defendants, third defendant was
examined as DW1 and Exs.B1 to B11 were marked.
8. The Trial Court after analysing the entire evidence found that by a
partition under Exs.A11 and A18, the properties were allotted to
A.Vedhachala Naicker. It is further held that no document was produced
before the Lower Court to infer that sufficient income was derived from the
joint family nucleus by the first defendant to acquire any property, which is
shown in the suit schedule. Since the suit was filed during the lifetime of the
first defendant, who is held to be the absolute owner of all the suit properties,
the suit was dismissed by the Trial Court.
9. It was the contention of the plaintiff that the suit B-schedule property
is said to be the sale proceeds available in the hands of the first defendant,
after selling the property acquired by selling another property of the mother of
the plaintiff, viz., Tmt.Padmavathy. However, the Trial Court found that the
plaintiff has not filed any document or record to show that the said sale
proceeds by selling the properties of the plaintiff's mother was given to the
defendants 1 and 3 as contended by her. Since the plaintiff failed to prove that
https://www.mhc.tn.gov.in/judis
6 / 13
AS. No.296 of 2013
the properties of the plaintiff's mother was sold and the sale proceeds to the
tune of Rs.3 crores is available with the defendants, the Trial Court held that
the plaintiff is not entitled to seek partition of plaint B-schedule property.
Aggrieved by the above judgment and decree, the plaintiff has preferred the
above appeal.
10. The learned Senior Counsel appearing for the appellant raised
several grounds. It is admitted that the properties, which are referred to in the
suit schedule, are the properties allotted to A.Vedhachala Naicker under
Koorchit marked as Ex.A18, dated 10.03.1968.
11. The learned Senior Counsel appearing for the plaintiff contended
that the document Ex.A18 is a partition deed, under which, the first defendant
was given substantial properties. From the recitals of Ex.A18 partition, we find
that the parties to the document have brought several properties under the
common roof, even properties that were acquired by the individual parties. Not
even a single property that was allotted under the document Ex.A18 is shown
to be property of coparcenary. The existence of coparcenary is not evident
from this document. Merely because, the properties acquired by the
individuals were partitioned, this Court cannot jump into the conclusion that
the properties are the properties of coparcenary.
https://www.mhc.tn.gov.in/judis
7 / 13
AS. No.296 of 2013
12. Under Ex.A18, the mother of the first defendant, is the first party.
The first defendant and his three brothers viz., Kandasamy Naicker, Nataraja
Naicker and Dharshana Murthy Naicker are other parties to this document.
Though substantial properties were allotted to A.Vedhachala Naicker in the
document dated 10.03.1968, it is seen that some of the items, which are
divided belonged to Kamachi Ammal, who is the mother of the first defendant.
From the document Ex.A18, this Court has to conclude that the parties got
properties not as members of coparcenary. We cannot consider the properties,
which are allotted to A.Vedhachala Naicker as coparcenary and joint family
properties to be shared among his descendants.
13. It is to be noted that the learned Senior Counsel appearing for the
appellant has not brought before this Court the existence of any joint family
property, which was treated as coparcenary property in the hands of
A.Vedhachala Naicker. In such circumstances, the properties allotted to
A.Vedhachala Naicker in Ex.A18 cannot be treated as a joint family properties
of a family to which the plaintiff also can claim, by virtue of either the Hindu
Succession (Amendment Act of 1989) or under Section 6 of the Hindu
Succession Amendment Act 2005. Since the suit is filed during the life time of
https://www.mhc.tn.gov.in/judis
8 / 13
AS. No.296 of 2013
the first defendant, who is the father of the plaintiff, the suit is liable to be
dismissed.
14. The learned Senior Counsel appearing for the appellant submitted
that the appellant filed applications in CMP.Nos.20673 and 17697 of 2022 for
reception of additional documents under Order 41 Rule 27 of CPC. Several
sale deeds are sought to be marked as additional documents showing that the
first defendant father acquired several properties in the name of his children
including the plaintiff. It is also stated in the affidavit filed in support of the
petition that the respondents, who are defendants in the suit, failed to bring it
to the notice of trial Court about the existence of those documents, to which
the plaintiff was not aware. The learned Senior Counsel then pointed out that
the father of the plaintiff executed settlement deed in favour of the plaintiff
and others without making her aware of settlement. However, execution of
settlement in favour of plaintiff is admitted.
15. Per contra, learned Senior Counsel appearing for the respondents
2, 3 and 5 to 8 submitted that the suit I schedule is the absolute properties of
A.Vedhachala Naicker as he got the properties by executing a decree obtained
by a specific performance. He then submitted that in respect of the properties
acquired in the executing decree, the father had executed a settlement deed. It
https://www.mhc.tn.gov.in/judis
9 / 13
AS. No.296 of 2013
is further stated that the plaintiff is also one of the beneficiaries of the
settlement deed.
16. It is then contended that the second item in A schedule was assigned
in favour of the father and the other properties are the self acquired properties
of the first defendant, who gave the same to his 3 sons. Similarly, the learned
Senior Counsel appearing for the respondents denied the right of the plaintiff
to seek partition in respect of any properties, which are described in the suit
schedule.
17. The learned Senior Counsel appearing for the respondents 2, 3 and 5
to 8 is unable to deny the existence of several registered documents, which
were obtained in the name of the father or member of the family of
A.Vedhachala Naicker in 1980s. These documents show that the family of
A.Vedhachala Naicker had extensive properties. Since the suit itself was filed
during the lifetime of A.Vedhachala Naicker and it is held that all the
properties are the absolute properties of A.Vedhachala Naicker, the plaintiff is
not entitled to seek partition. However it is now admitted that the father is no
more and he died immediately after the suit was filed. Though all the legal
heirs of the first defendant are parties to the suit for partition filed by the
https://www.mhc.tn.gov.in/judis
10 / 13
AS. No.296 of 2013
appellant, she unfortunately has not taken steps to seek amendment of the
plaint, so that the relief could have been moulded.
18. It is admitted before this Court that the plaintiff's father did not
execute any Will though it is stated that he executed settlement deed and
alienated several other properties, which belonged to him. Further, the
encumbrance certificates and other documents show the existence of few more
properties.
19. The question whether the properties of the father had been alienated
or available can be gone into only if proper issues are framed and the parties
are given opportunity to lead evidence. In that view of the matter, this Court
finds that the plaintiff has to be given an opportunity to file a fresh suit for
partition as legal heir of the plaintiff's father A.Vedhachala Naicker. It is open
to the respondents to raise any other ground with regard to the existence of
other properties on the ground of settlement or other alienations of father
A.Vedhachala Naicker. It is also open to the appellant to seek declaration of
title if any property is purchased by the father in the name of the plaintiff as it
was contended on the basis of one of the documents, which is sought to be
marked as additional documents with liberty preserved to the parties as above
https://www.mhc.tn.gov.in/judis
11 / 13
AS. No.296 of 2013
this appeal stands dismissed. Consequently, CMP.Nos.20673 and 17697 of
2022 filed for marking additional documents are also dismissed. MP.No.1 of
2013 is closed. No costs. Consequently, connected miscellaneous petition is
closed.
(S.S.S.R.J.,) (P.B.B.J.,)
13.03.2023
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The III Additional District Judge, Poonamallee
2. The Section Officer,
V.R.Section, High Court, Madras
https://www.mhc.tn.gov.in/judis
12 / 13
AS. No.296 of 2013
S.S.SUNDAR, J.
and
P.B.BALAJI, J.
pvs
AS. No.296 of 2013
13.03.2023
https://www.mhc.tn.gov.in/judis
13 / 13
