Madras High Court
P.T.K.Somasundara Chettiar vs Mr.P.T.Muthukumaraswamy Chettiar on 4 November, 2024
Author: R.Subramanian
Bench: R.Subramanian
A.S.No.682 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2024
CORAM:
THE HONOURABLE Mr. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
A.S.No.682 of 2020
1. P.T.K.Somasundara Chettiar
2. Smt.Kalavathi
... Appellants/Plaintiffs
-Vs-
1. Mr.P.T.Muthukumaraswamy Chettiar,
2. P.T.Selvaraj Chettiar
3. Mr.P.T.Kasiviswanatha Chettiar
4. Ramesh Kumar M.Jain
5. Manju Bai
6. Praveen Kumar
... Respondents/Defendants
PRAYER: First Appeal filed under Section 96 R/W Order 41 Rule 1 & 2 of
the Code of Civil Procedure against the Judgment and decree dated
23.10.2019 passed in O.S.No.5676 of 2019 on the file of the XVIII
Additional Judge, City Civil Court at Chennai [being transferred from High
Court of Judicature at Madras vide C.S.No.1010 of 2010 formerly].
For Appellants : Mr.V.Manohar
For Respondents : Mr.N.R.Anantha Ramakrishnan
for R1 & R2
Mr.T.S.Baskaran for R4 to R6
R3-Served
*****
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A.S.No.682 of 2020
JUDGMENT
[Judgment of the Court was delivered by R.SUBRAMANIAN, J]
The plaintiffs are the appellants. They laid a suit for partition and
separate possession of their share in the suit property as decided in the
Partition Deed dated 22.09.1995, a direction to the defendants to pay a sum
of Rs.10,000/- [Rupees Ten Thousand only] per month towards mesne profit
and for costs.
2. According to the plaintiffs, the suit properties belonged to the
families of Kuppu Chettiar and Dharmalinga Chettiar and the properties were
divided. The said division was recorded by a document dated 22.09.1995.
In and by the said document, while confirming the earlier oral partition of the
other properties, the suit property, which is a house in Ponnappa Chetti
Street, George Town was not divided as a litigation was pending and it was
agreed that the said property should be shared between the parties equally
after the disposal of the pending proceedings. Therefore, the plaintiffs would
contend that they are entitled to ½ share, as the heirs of Kuppu Chettiar
being the children of his son Chockalingam.
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3. The defendants 1 to 3 appeared through counsel, but they did not
participate in the proceedings and were set ex parte. The defendants 4 to 6
resisted the suit by filing counter claim contending that they have purchased
the 3/4th share of the other sharers except the plaintiffs under two sale deeds
dated 03.01.2011 and 20.12.2013 and therefore, they are entitled to ¾th share
in the suit property. On the claim and the counter claim, the learned Trial
Judge framed the following issues:-
“1) Whether or not the suit property is liable to be divided in
metes and bounds in accordance to the partition deed dated
22.09.1995 registered as document No.2363/1995 on the file of
SRO?
2) Whether or not the defendants are liable to pay the sum
of Rs.10,000/- per month from the date of the suit till handing over
of the same in accordance to the partition directed under partition
deed dated 22.09.1995 registered as document No.2363/1995?
3) Whether or both the defendants 4 to 6 have any right of
participation in the suit if so in what capacity?
4) Whether or not the defendants 4 to 6 are all legally
prevented from making any right over the suit property as they are
alleged subsequent purchaser of portion of the property from the
other defendants in the suit?
5) Whether the right of claim in favour of female member
get enlarge as per the amended act of 2005 as the partition was
completed as early as in 1995 as per the proviso of the amendment
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the said enlargement of share in favour of family member of the
family being dislodged under the enactment?
6) Whether the plaintiffs are entitled to any other relief and
if so what relief the plaintiffs are entitled to?
7) Whether the deed of partition dated 22.09.1995 is valid
and binding on all the legal heirs of Kuppu Chettiar and
Dharmalinga Chettiar?
8) Whether the suit for partition, filed by the plaintiff as per
the deed of partition dated 22.09.1995 is maintainable in law as
against the defendants 4 to 6?
9) Whether the defendants are entitled to seek partition and
separate possession of their 3/4th share in the suit property?
10) Whether the issue Nos.3, 4 and 5 can be established
against the defendants 4 to 6 in the absence of any pleading?”
4. At Trial, the first plaintiff was examined as PW1 and the 4th
defendant was examined as DW1. While Exs.A1 to A7 were marked on the
side of the plaintiffs, Exs.B1 to B3 were marked on the side of the
defendants.
5. On a consideration of the evidence, the learned Trial Judge found
that the suit property belonged to the families of Kuppu Chettiar and
Darmalingam Chettiar. Kuppu Chettiar died leaving behind a son and a
daughter by name P.T.K.Chockalingam and Gnanasoundariammal.
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Darmalinga Chettiar has two wives by name Pinchi Ammal and
Varadammal. Pinchi Ammal had two daughters by name Saraswathi and
Radha Rukmani. Varadammal had 3 sons and 2 daughters by name
Muthukumarasamy, Selvaraj, Kasi Viswanathan, Muthulakshmi and Gowri.
While P.T.K.Chockalingam died leaving behind the two plaintiffs, his sister
Gnanasoundariammal died leaving behind 3 sons by name Balakrishnan,
Devarajan and Krishnamurthy. The Trial Court upheld the claim of the
defendants 4 to 6, since the defendants 4 to 6 had purchased ¾ of the
property from all the other heirs except the plaintiffs under the two sale
deeds, which were marked as Exs. B2 and B3. Having held that the
defendants 4 to 6 have become owners of the ¾ property, the Trial Court
granted a preliminary decree in favour of the defendants 4 to 6 for partition
and separate possession of ¾ share. While dismissing the suit, the Trial
Court also faulted the plaintiffs for not filing the reply statement to the
counter claim.
6. We have heard Mr.V.Manohar, learned counsel for the appellants,
Mr.T.S.Baskaran, learned counsel appearing for respondents 4 to 6 and
Mr.N.R.Anantha Rama Krishnan, learned counsel appearing for the
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respondents 1 and 2. The 3rd respondent though served, he has not appeared
either in person or through any counsel.
7. The only issue that is urged by the counsel for the parties before us
is that the Partition dated 22.09.1995 marked as Ex.A2 only recognizes a
partition that had taken place in 1968 and the Sister of the plaintiffs
Gnanasoundariammal having not questioned either 1968 partition or 1995
partition, is not entitled to a share in the property and therefore, the
conveyance by her children of an alleged share in the suit property is not
binding on the plaintiffs. Mr.T.S.Baskaran refuting the said submission
would submit that the details of 1968 partition are not available and the
Partition of the year 1995 specifically makes it clear that the share of the
Sister of the parties will have to be decided. The relevant portion of the
document states that “cga ghh;lo; fspd; jfg;gdhh;fs; bra;Jf;bfhs;sf; Toajhf
,Ug;gjhy; FLk;g ghfg;gphptpidapy;. 1 tJ ghh;l;oapd; jhahh;. rnfhjhpf;F
mf;Fghj;aij FwpjJ
; eph;zapf;f ntz;Lk;. kw;Wk; brd;id bghd;dg;g brl;o
bjUtpy; cs;s 23 be/ tPlo; d; nghpy; tHf;F cs;sjhy;. tHf;F Koe;j cld; 1983
Kjy; thlif tut[ tHf;F rpyt[ Mfpaitfis cga ghh;lo; f;Fk; Vw;W tPl;il
rkghfkhf mila ntz;Lk;/”
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8. The said recital according to Mr.T.S.Baskaran would indicate that
the share of the sister of the plaintiffs was recognised, but was not
determined. Therefore, the sale by her heirs would be valid to the extent of
her interest in the property. On the above contention, the following issue
arises for consideration in this appeal.
Whether the Trial Court was right in concluding that the
defendants 4 to 6 would be entitled to ¾ share as per the Sale
deeds dated 03.01.2011 and 20.12.2013 marked as Exs.B2 and
B3?
9. The fact that Gnanasoundariammal is the daughter of Kuppu
Chettiar is not in dispute. The fact that she had left behind 3 sons by name
Balakrishnan, Devarajan and Krishnamurthy is also not in dispute. The 1995
Partition Deed is between the male heirs of Kuppu Chettiar and Darmalinga
Chettiar. The female heirs namely daughter of Kuppu Chettiar and daughters
of Dharmalinga Chettiar have been excluded. Whatever recital found in the
document will not be binding on the female heirs. Therefore, whatever share
that the female heirs are entitled to will be disposable by them at their
discretion. The fact that two branches agreed to have the partition between
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them to the exclusion of daughters cannot oust the right of the daughters in
the property, particularly, when they are not made parties to the document.
Once the status/the legal heirs of Gnanasoundariammal and the daughters of
Darmalinga Chettiar through the first wife as well as the second wife is not
disputed, their entitlement in the share of the property cannot also be
disputed. In fact, the male heirs of Darmalinga Chettiar namely
Muthukumarasamy, Selvaraj, Kasi Viswanathan, who are the parties to the
1995 document have also joined the execution of the Sale Deeds of the year
2011 and 2013. Therefore, the conclusion of the Trial Court that the
defendants 4 to 6 would be entitled ¾ share in the property cannot be said to
be unjust. However, we find that the Trial Court has dismissed the suit,
while granting the decree for ¾ share in favour of the defendants in the
counter claim made by them. The plaintiffs put together would be entitled to
the remaining ¼th shares heirs of P.T.K.Chockalingam Chettiar. Therefore,
while we do not find any reason to interfere with the grant of ¾ share in
favour of the defendants by the Trial Court, we find that the Trial Court
should have granted preliminary decree for partition for division of ¼ share
in favour of the plaintiffs also.
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10. In fine, the Appeal Suit is partly allowed, granting a preliminary
decree for partition for ¼ share of the plaintiffs, while sustaining the decree
for ¾ share granted in favour of the defendants 4 to 6. The parties shall bear
their own costs.
[R.S.M., J] [C.K., J]
04.11.2024
Index : No
Speaking Order
NCC : No
kmi
To
The XVIII City Civil Court,
Chennai.
Note: The decree shall be drafted as follows:
1. The appeal is partly allowed;
2. The suit is partly decreed granting a preliminary decree declaring the ¼th
share of the plaintiffs in the suit property.
3. The counter claim is allowed granting a preliminary decree declaring the
¾th share of the defendants in the suit properties.
4. Parties will bear their own costs.
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R.SUBRAMANIAN, J
and
C.KUMARAPPAN, J
kmi
04.11.2024
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