Madras High Court
Chitra Jagannathan vs S.Kalavathy on 25 September, 2023
A.S.No. 474 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.09.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No. 474 of 2019
Chitra jagannathan
W/o. late Jagannathan .. Appellant
Vs
1. S.Kalavathy
2. S.Chitharanjan
3. S.Damodharan
4. O.Rajeshwari
5. O.Nisha (minor)
6. Aarush (minor)
7. S.Sumithra
8. T.Padma
9. T.Sheelapriya
10. Sangamithra Prabhakara Rao
11. Sujitha Ramesh ... Respondents
PRAYER : Appeal Suit filed under Sec. 96 r/w Order 41 of Civil
Procedure Code, praying to set aside the judgment and decree dated
12.07.2017 passed in O.S.No.4251 of 2014 on the file of XVIII Addl.
City Civil Court, Chennai.
1/14
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
For Appellant : Mr.B.Leelesh Sundaram
For Respondents : Mr. R.Swarnavel
JUDGEMENT
The appellant herein is the 9th defendant in the suit in O.S.No.4251
of 2014. Originally, the suit was filed by the 1st respondent/plaintiff
against defendants 1 to 11 claiming her 2/35th share in the suit property
contending that the suit property is the self-acquired property of her
father-in-law deceased K. Srinivasulu and after his demise, as a legal heir
of his eldest son Seshadri, she claimed 2/35th share from the other legal
heirs, for which they refused and also contended that defendants 9, 10
and 11 already relinquished their share in the suit property.
2. For the sake of convenience, parties are referred as per the
ranking in the suit.
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
3. Before the trial court, the defendants 1 to 8 filed a written
statement admitting plaintiff's claim and not raised any objection to
decree the suit as prayed for in the plaint. But, the 9 th defendant, one of
the daughter of deceased Srinivasulu filed a separate written statement
contending that she is in joint and constructive possession of suit
property, thereby she is entitled 1/6th share in the suit property and also
contended that she never executed any relinquishment deed or letter in
respect of the suit property as alleged by the plaintiff stating that the
alleged letter might have fabricated by the 1st defendant with the help of
other sharers in order to defraud her claim, thereby she prayed to allot
1/6th share in the suit property.
4. Before the trial court, the plaintiff was examined as P.W.1 and
on her side, documents in Ex.A1 to A15 were marked. No evidence on
the side of defendants including 6th defendant. Based on the oral and
documentary evidence adduced on the side of plaintiff, the trial judge
concludes that the suit property, Ex.A1 stands in the name of plaintiff's
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
father-in-law deemed as self-acquired property and also considered the
settlement deeds executed by daughter of deceased K.Srinivasulu,
Ex.A11 and Ex.A12 as well as affidavit and receipt issued by 9th
defendant, another daughter, which were marked as Ex.A6 and A7
concludes that daughters of Srinivasulu relinquished their share.
Therefore, the remaining legal heirs of Srinivasulu alone entitled for
share in the suit property. Accordingly, the suit was decreed allotting
2/35th share in favour of plaintiff as she prayed for by passing a
preliminary decree in her favour. Challenging the said findings, the 9th
defendant preferred this appeal.
5. The learned counsel for 9th defendant/appellant would submit
that the trial judge failed to follow the legal proposition prescribed under
Sec.9 of Hindu Succession Act, thereby the 9th defendant is entitled to
1/6th share in the suit property. He would further submit that the trial
judge erred in passing a decree by simply relying the prayer made by the
plaintiff, without proper appreciation of facts and failed to consider that
the 9th defendant is in joint and constructive possession of the suit
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
property, thereby she is entitled 1/6th share. He would also submit that the
trial judge erroneously allotted 2/35 share to the plaintiff without
following the legal proposition as required under Hindu Succession Act.
Hence, he prayed to set aside the decree passed by the trial judge.
6. The learned counsel for 1st respondent/plaintiff would submit
that after the death of plaintiff's father-in-law Srinivasulu, there was a
deliberations with regard to division and enjoyment of the suit property.
Accordingly, daughters/defendants 10 and 11 have executed an affidavit
on 03.06.1995, thereby they have relinquished their share without
receiving any consideration. But, another daughter/9th defendant not
inclined to relinquish her right without receiving the amount, thereby, she
insisted payment for her share value. Hence, other sharers have paid a
sum of Rs.5,00,000/- on 07.09.1997, thereby she executed a stamped
receipt before the Notary and the same was produced on the side of
plaintiff as Ex.A6 and A7. Thus, from the year of 1997 onwards, sons of
Srinivasulu enjoyed the suit property nor his daughters and 9th defendant
also not in constructive joint possession of property and all those
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
documents were properly appreciated by the trial judge, but the 9th
defendant though claimed that the alleged stamped receipt is fabricated
one, but she has not entered into witness box nor denied that she received
a sum of Rs.5,00,000/- from the other sharers, but strangely she filed this
appeal challenging the findings of trial judge as such is not admissible.
Hence, he prayed to dismiss this appeal as no merits.
7. Heard and considered rival submissions made by learned
counsel for appellant as well as respondents and perused the records.
8. The point for consideration is whether 9th defendant is entitled
for her share in the suit property as a legal heir of her father-in-law,
deceased Srinivasulu? The relationship between the parties are admitted.
The property belongs to deceased Srinivasulu was acquired by self-
acquisition through Ex.A1, Sale deed. He died intestate leaving behind 3
sons and 3 daughters. P.W.1 is daughter-in-law of the said Srinivasulu
and she is wife of Seshadri, eldest son of the said Srinivasulu. The
defendants are the legal heirs of the sons of deceased Srinivasulu and
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
daughters of deceassed Srinivasulu. Even among the three daughters, two
of the daughters remain exparte and they have not raised any objection
with regard to the averment of relinquishment made by them as well as
documents relied by the plaintiff, which marked as Ex.A11 and A12.
Silence on the side of defendants 10 and 11 amounting to admission of
the fact, which needs no interference. The only contesting party is the 9 th
defendant. As a daughter of deceased Srinivasulu, she claimed that she is
entitled for 1/6th share in the suit property.
9. Admittedly, the suit property is measuring an extent of 3429
sq.ft. of land and building situated at Bakthavatsalam nagar, Adyar,
Chennai and the said property was purchased by Srinivasulu vide sale
deed dated 18.10.1982 and he died intestate leaving behind 3 sons and 3
daughters. After the demise of Srinivasulu, with regard to division of
property, there was a dispute arose in the family, however, two daughters
have relinquished their share by executing a settlement deed, which is
marked as Ex.A11 and A12. Another daughter/9th defendant is not
inclined to relinquish her share without receiving any amount and she
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
insisted her brothers to give the value equally to that of her share,
thereby, they paid a sum of Rs.5,00,000/-, for which, she executed an
affidavit and issued a stamped received, which are marked as Ex.A6 and
A7. But, those documents are denied by the 9th defendant stating that she
has not received any amount from the other sharers and those documents
are fabricated by them. Admittedly, she has not adduced any contra
evidence to disprove the said documents. On perusal of the affidavit and
stamped receipt, if it was fabricated by her brothers, she ought to have
entered into witness box and should have adduced contra evidence, but
she failed. After disposal of the suit, now she preferred this appeal and
contended that her brothers alone bound to prove that their defence as
they are major share holders is not acceptable one. Even in the appeal
ground, she has not specifically denied about the execution of stamped
receipt. Therefore, those documents need not be proved by the plaintiff as
rightly observed by the trial judge and silence on the part of 9 th
defendant/appellant also amounting to admission of the contents of
documents.
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
10. By way of reply, the learned counsel for 1st respondent/plaintiff
would submit that affidavit and stamped receipt Ex.A6 and A7 were
issued by 9th defendant. But the counsel for 9th defendant would submit
that the alleged documents are unregistered one and inadmissible in
evidence for the purpose of proving the factum of partition between the
parties, for which, he relied on the ratio laid down in the authority held in
Civil Appeal No.8441 of 2015 in the case of Yellapu Uma Maheswari
and another vs. Buddha Jagadheeswararao and others, wherein the
Apex Court held in para 17 reads as follows :-
“17.......................A thorough reading of both Exhibits B21
and B22 makes it very clear that there is relinquishment of
right in respect of immovable property through a document
which is compulsorily registerable document and if the same
is not registered, becomes an inadmissible document as
envisaged under Sec.49 of Registration Act. Hence, Exhibit
B21 and B22 are the documents, which squarely fall within
the ambit of Section 17(i) (b) of the Registration Act and
hence, are compulsorily registerable documents and the same
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
are inadmissible in evidence for the purpose of proving the
factum of partition between the parties.........”
11. Per contra, learned counsel for 1st respondent/plaintiff would
submit that the alleged receipt issued by 9th defendant can be appreciated
in order to prove the factum of relinquishment of her share, more
particularly, with regard to past transaction entered between the parties.
To that effect, he relied on the ratio laid down in the authority held in
Civil Appeal No.6141 of 2021 in the case of Korukonda Chalapathi Rao
and another vs. Korukonda Annapurna Sampath Kumar, wherein the
Apex Court held in paras 33, 35 and 37 reads as follows :-
“33. If we apply the test as to whether the Khararunama in
this case by itself 'affects', i.e. by itself creates, declares,
limits or extinguishes rights in the immovable properties in
question or whether it merely refers to what the appellants
alleged were past transactions which have been entered into
by the parties, then going by the words used in the
document, they indicate that the words are intended to refer
to the arrangements allegedly which the parties made in the
past. The document does not purport to by itself create,
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
declare, assign, extinguish or limit right in properties. Thus,
the Khararunama may not attract Sec.49(1)(a) of the
Registration Act.
35. As far as stamp duty goes, on our finding regarding
the nature of the document viz., Khararunama, being record
of the alleged transactions, it may not require to be
stamped. We notice the following conclusion of the Division
Bench of Madras High Court in A.C.Lakshmipathy and
others vs. A.M.Chakrapani Reddiar and others reported
in AIR 2001 Mad. 135
“42. To sum up the legal position
xxx xxx xxx
(V) However, a document in the nature of a
Memorandum, evidencing a family arrangement
already entered into and had been prepared as a
record of what had been agreed upon, in order
that there are no hazy notions in future, it need
not be stamped or registered.”
36. No doubt, when there has been a partition, then, there
may be no scope for invoking the concept of antecedent
right as such, which is inapposite after a disruption in the
joint family status and what is more an outright partition by
metes and bounds. In this regard, it is to be noticed that the
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
appellants and the respondents, admittedly, partitioned their
joint family properties. This is clear from the Khararunama
wherein it is stated that they have divided the joint family
properties. The properties, which are mentioned in the
Khararunama, became the separate properties of the
respondent.”
With regard to proof of the past transaction as well as intention of party,
the affidavit can be relied. But, as discussed above, 9th defendant not
denied her signature in the document by giving contra evidence to that
effect before the trial court. Therefore, the submission on the side of 1 st
respondent/plaintiff is sustainable one. However, during the pendency of
this appeal, the matter was referred to mediation, wherein the
appellant/9th defendant also agreed for amicable settlement as most of
parties are senior citizens. Therefore, on the side of 2nd respondent, as a
brother of appellant, he has agreed to pay a sum of Rs.10,00,000/- in
order to close the issue once for all. To that effect, he filed an affidavit
before this court. So, on considering the share as well as age of parties,
without prejudice to the claim raised in the appeal, the 2nd respondent is
directed to pay a sum of Rs.10,00,000/- to the appellant/9th defendant
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
within a period of three months from the date of receipt of copy of this
order as one time settlement in respect of her share. The affidavit
submitted by the 2nd respondent shall form part and parcel of the decree.
Accordingly, this appeal is dismissed as no merit and the findings of trial
judge in O.S.No.4251 of 2014 is confirmed. With regard to shares of
plaintiff and the defendants, they have to work out their remedy in the
final decree proceedings. No costs.
25.09.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
XVIII Addl. Judge, City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
A.S.No. 474 of 2019
T.V.THAMILSELVI, J.
rpp
A.S.No. 474 of 2019
25.09.2023
https://www.mhc.tn.gov.in/judis
