Madras High Court

Mrs. Annie Theresa vs Mrs. Josephine Caroline on 7 November, 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED :     07.11.2024

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                                   C.S.No.529 of 2014

                    Mrs. Annie Theresa                                               .... Plaintiff

                                                           Vs.

                    Mrs. Josephine Caroline                                         ...Defendant

                    Prayer :- Civil Suit filed under Order IV Rule 1 of O.S. Rules read with
                    Order VII Rule 1 of the Civil Procedure Code praying for a judgment and
                    decree for the following reliefs-


                        a) For partition of the plaint schedule property into two equal shares by
                    metes and bounds and put the plaintiff in separate possession of her one
                    half share of the Plaint schedule property, and
                        b) for the cost of the suit.


                                           For Plaintiff : Mr.K. Sukumaran

                                           For Defendant : Mr.K. Kumar

                                                        *****



                                                   JUDGMENT

https://www.mhc.tn.gov.in/judis This Civil Suit has been filed, seeking the relief as prayed

therein.

2. The case of the Plaintiff, as set out, in the plaint is as follows:-

a).The plaintiff and the defendant are the sisters and they are

the children born to Mr. A. Chinnaraj and Mrs. Regina Chinnaraj. The

defendant is the younger sister of the plaintiff. The mother Regina

Chinnaraj predeceased the father of the plaintiff and defendant on

29.3.2002. The suit property more fully described in the plaint schedule

hereunder absolutely belonged to Mr. A. Chinnaraj, the father of the

plaintiff and defendant and he purchased the same out of his own earnings

and it was his self acquired property. The father Chinnaraj died intestate on

26.8.2013 leaving behind the plaintiff and the defendant to succeed to his

estate namely the suit property and since then the plaintiff and defendant

have become joint owners by means of inheritance and succession and they

are entitled to one half share each in the suit property. The ground floor of

the suit property has been rented out during the life time of the father

Chinnaraj and the first floor of the suit property is being occupied by the

defendant and the suit property is being in joint possession of the plaintiff

https://www.mhc.tn.gov.in/judis and the defendant. After the death of father Chinnaraj, the defendant is

collecting the rent of Rs.15000/- per month since the death of father

Chinnaraj.

b). After the death of father A. Chinnaraj, the defendant is

receiving the rents from the ground floor portion to the tune of Rs. 15,000/-

per month and she has neglected to pay respective share in the suit property

to the plaintiff. In other words on and after the death of Chinnaraj the suit

property hereunder is in joint possession and enjoyment of the defendant

and the plaintiff, since the Plaintiff is entitled to her half share in the suit

property. All the original title documents is in the custody of the defendant

after the death of father Chinnaraj, since the Chinnaraj was living with the

defendant at the time of his death. The defendant has taken undue

advantage of the possession of all the original title documents in her

custody after the death of Chinnaraj, has resorted to decline orally, the

lawful claim of the plaintiff to effect partition and the high handedness and

illegal action at the hands of the Defendant has forced the plaintiff to cause

a lawyer's notice dated 21.10.2013 to the defendant to effect partition by

dividing the suit property into equal shares. The defendant sent a reply

notice on 30.10.2013 with untenable allegations, to deprive the valuable

https://www.mhc.tn.gov.in/judis right of the plaintiff, contending inter-alia that the suit property was settled

in favour of the defendant by the father Chinnaraj on 29.12.2004; that

pursuant to the settlement deed the defendant took over the possession of

the property and receiving the rents from the tenant and revenue records

were mutated in favour of the defendant and the defendant is paying all the

statutory dues and charges in her name as absolute owner of the property.

c)The father Chinnaraj has not executed any settlement deed as

alleged by the defendant and had it been true the defendant would have

mentioned the document number in the reply notice and during the life time

of the Chinnaraj, Plaintiff being the one of the daughters, was not put on

any notice or information with regard to alleged settlement. The settlement

deed must have been obtained by means of false representation, force or

cheating and the same is not valid in the eye of law. The parents of the

plaintiff had only one grand daughter, born to the plaintiff and during the

life time of mother of plaintiff, she expressed that all jewels belonging to

her, weighting about 150 sovereigns will be handed over to her, one and

only grand daughter (i.e) daughter of plaintiff and till today the defendant is

not handing over the jewels. In so far as the jewels weighing about 150

sovereigns, the plaintiff is entitled to one half of the same.

https://www.mhc.tn.gov.in/judis

d).The plaintiff is a widow and her husband died at his age of 42

years and the responsibility of running the family was forced on her and

under such circumstances, the plaintiff was working in St. Marys Catholic

High School Dubai, between 2008 to 2012. In the first week of July 2012,

the plaintiff was informed about the illness of father Chinnaraj. by the

defendant who was not in talking terms ever since 1990. On the said

information plaintiff rushed to India and she was with the father for the

period of one month. The father Chinnaraj regained consciousness and

thereafter the plaintiff left for Dubai in August 2012. Even visiting in

November 2012 to India, there was no information about any document

alleged to have been executed in favour of the defendant herein.

e). After the death of father Chinnaraj, the plaintiff demanded the

defendant to know about the devolvement of right over the suit property

and for which the defendant replied that she does not know any document

executed by the father and thereafter after some time during the

conversation, the defendant informed the plaintiff that there is a document

and copy will be furnished in a day or two. Since the defendant has not

https://www.mhc.tn.gov.in/judis furnished the copy of the document, the lawyer's notice was sent to the

defendant. Even in the said reply, for the reasons best known to the

defendant, the registration number of the document has been deliberately

withheld and hence, the document dated 29.12.2004 is not a valid

document in the eye of law. Since the Plaintiff being one of the co-owner,

is entitled to one half share in the suit property, this Suit has been filed.

2. The case of the Defendant, in a nutshell, as set out in the written

statement, is as follows:-

a.The Defendant, at the outset denies all the averments and

allegations contained in the Plaint as false and frivolous, except the extent

specifically admitted hereunder and puts the Plaintiff to strict proof of the

same.

b. The suit schedule Property was acquired by the father of the

Plaintiff and the Defendant Late.A.Chinnaraj from the Tamilnadu Housing

Board through Sale Deed dated 19.9.1991 registered as Document No.4788

of 1991, SRO, Anna Nagar and he constructed a residential house in the

suit schedule property consisting ground and first floor through his self-

earned money and resided in the property by paying all statutory dues in his

name. It is denied that the said A.Chinnaraj died intestate and settled the

https://www.mhc.tn.gov.in/judis suit schedule property in favour of the Defendant vide Settlement Deed

dated 29.12.2004 registered as Document No.5368 of 2004, SRO, Anna

Nagar. When the property was settled absolutely in favour of the Defendant

the question of entitlement of half-share in the suit schedule property by

way of inheritance or succession by the Plaintiff does not arise at all. The

said Settlement Deed was duly accepted and acted upon by the Defendant

during the lifetime of the said Mr.Chinnaraj by mutating all revenue

records including Property Tax, Water Tax and Electricity Connection in

her name.

c. She is in absolute possession and enjoyment of the suit

schedule property without any hindrance till today. Further, the suit

schedule property was not jointly occupied by the Plaintiff and the

Defendant and only the Defendant is in absolute possession and enjoyment

of the suit schedule property. The Defendant has not taken undue

advantage of the possession of original documents in her custody after the

death of A.Chinnaraj and further the question of declining oral or lawful

claim of the plaintiff to effect partition does not arise at all since the

Defendant is the lawful and undisputed owner of the suit schedule property.

https://www.mhc.tn.gov.in/judis d.The Plaintiff is the elder sister of the Defendant and her

marriage with Mr.Philomine Ambrose was an arranged one conducted by

our parents in a grand manner and after marriage she settled at her

matrimonial home at Pondicherry. After marriage she never maintained

cordial relationship with either with her parents or with the Defendant.

Whenever the Plaintiff visits the parental home at Chennai she demanded

money and when her demand is not met she humiliated and disrespected

the family members. Even though the Plaintiff humiliated her family

members, Mr.Chinnaraj extended all possible help including financial help.

Without the help of Mr.Chinnaraj the Plaintiff would not have completed

the construction of her house at Pondicherry. Further, the plaintiff sold the

property at Pondicherry and spent lavishly and after the demise of

Plaintiff's husband, the Plaintiff settled at Dubai without informing

A.Chinnaraj. Thereafter, the Plaintiff never contacted her family members.

The said A.Chinnaraj was upset and vexed with the bad treatment and

ungrateful behaviour of the Plaintiff.

e. A.Chinnaraj executed the Settlement Deed in favour of the

Defendant in appreciation of selfless service rendered by the Defendant at

https://www.mhc.tn.gov.in/judis his own freewill when he is in sound mind and the execution came to the

Defendant's knowledge only after the registration and the Settlement Deed

was not executed with false representation or cheating as alleged by the

Plaintiff and it is valid under law. After receipt of the Reply Notice the

Plaintiff personally visited the Defendant and verified the Settlement

Deeds. Further, the mother of the plaintiff and defendant never left any

gold ornaments weighing 150 soverigns with a wish to hand over the same

to her grand daughter born through the Plaintiff. The Plaintiff took the

jewels from her mother during her every visit by making hue and cry under

one pretext or other. The said A.Chinnaraj fell ill during the month of July,

2010 and not 2012 as stated by the Plaintiff. The allegations are made with

a view create sympathy in the minds of this Hon'ble Court and to get

favourable orders. The Plaintiff came to India formally seen her father and

left immediately without informing the family members. The Defendant

only met all the needs of her father A.Chinnaraj including medical

expenses and the Plaintiff never spent single pie for his well being. The

Plaintiff not even mingled in the funeral ceremony of A.Chinnaraj and left

like a third person.

f. The Plaintiff came to the suit schedule property on 28.9.2013

https://www.mhc.tn.gov.in/judis along with her friend Dayavathy and Jacob enquired about the assets left by

her late father and the Defendant extended all her help and provided all the

details and documents sought by her. This suit is filed with a view to harass

the Defendant and her family members and to grab the suit schedule

property to continue her lavish lifestyle. The plaintiff is not entitled any

share over the suit schedule property as claimed in the suit and the suit is

devoid of merits and liable to be dismissed.

4.On the pleadings of the parties, the following issues were

framed in the suit:-

1.Whether the plaintiff is entitled to one half of the share in the suit property in the absence of the Settlement Deed?

2.Whether the father of the plaintiff executed the alleged settlement deed, with the knowledge that the document was settlement deed, when the father was in complete control of the defendant?

3. Whether Late.A. Chinnaraj the father of the plaintiff and defendant died intestate or not?

4. Whether the above suit filed for partition on the ground inheritance or succession is maintainable when Late.

A. Chinnaraj during his life time executed a registered

https://www.mhc.tn.gov.in/judis settlement deed in favour of the defendant?

5.Whether the plaintiff property valued the above suit and paid requisite court fees?

6.Whether the suit schedule property was self- earned property of the Late. A. Chinnaraj?

7.Whether the defendant accepted and acted upon the settlement deed dated 29.12.2004 executed by Late. A. Chinnaraj?

8. To what other relief the plaintiff is entitled for?

5. To substantiate the respective contentions, P.W.1 was examined

and Ex.P1 to Ex.P4 were marked on the side of the plaintiff. D.W.1 and

D.W.2 were examined and Ex.D1 to Ex.D16 were marked on the side of

the defendants.

6.Heard both sides and perused the material available on records.

7.The learned counsel for the plaintiff submits that Mr.A.Chinnaraj

who is the father of the plaintiff and the defendant purchased the suit

property out of his own earnings and it was his self acquired property. The

father Chinnaraj died intestate on 26.08.2013 leaving behind the plaintiff

and the defendant to succeed to his estate namely the suit property and

https://www.mhc.tn.gov.in/judis since then they have become joint owners by means of inheritance and

succession and they are entitled to one half share each in the suit property.

8.It has been further submitted by the learned counsel for the

plaintiff that after the death of father A.Chinnaraj, since the suit property is

in joint possession and enjoyment of the defendant and the plaintiff, the

plaintiff is entitled to her half share in the suit property. Further, as the

defendant is receiving the rents from the ground floor portion to the tune of

Rs.15,000/- per month, the plaintiff is entitled to one half share in the rental

income from the suit property.

9. The learned counsel for the plaintiff further submits that

during the life time of Mr.Chinnaraj, it was not informed with regard to

alleged settlement to the plaintiff. Further, there was no necessity for the

Chinnaraj to execute such alleged settlement deed voluntarily. If the suit

property is settled in favour of the defendant, she would have mentioned

the document number in the reply notice and the same is a bogus

document. As the same is not binding on the plaintiff and she is entitled to

one half share in the suit property, the defendant cannot claim right to the

entire suit property on the basis of the alleged settlement deed while it has

https://www.mhc.tn.gov.in/judis not been proved in accordance with law.

10.It has been further submitted by the learned counsel for the

plaintiff that the evidence adduced by the defendant through DW2, one of

the attestors to Ex.D4 has miserably failed to prove the attestation within

the meaning of Section 3 of the Transfer of Property Act. When the

Settlement Deed relied on by the defendant has not been proved in

accordance with law for want of proper attestation as mandated under

Section 68 of the Indian Evidence Act and Section 3 and Section 123 of the

Transfer of the Property Act. The settlement deed is executed out of love

and affection and it is a transfer of an immovable property falling under the

definition of Gift under Section 123 of the Transfer of the Property Act and

the said transfer must be effected by means of a registered document signed

by the Settlor and attested by atleast two witnesses. Hence, the plaintiff has

right to claim in the suit property by virtue of intestate succession. In

support of his argument, he relied on the Judgments reported in 1) 2006

(13) SCC 433, ii) 2021 (2) CTC 431, iii)1969 (1) SCC 573, iv) 2023 (6)

CTC 732,v) AIR 1998 MP 1. Thus, he seeks to grant a preliminary decree

for partition as prayed for.

https://www.mhc.tn.gov.in/judis

11.The learned counsel for the defendant submits that the

defendant has taken possession pursuant to the said Settlement Deed and

had produced documentary evidence to prove the same. The Possession of

the Defendant is also admitted by the Plaintiff in the Plaint stating that the

Defendant has rented out the property and received the rent. Thus the

Plaintiff has herself categorically admitted that she is not in the suit

property. Further, the settlor was alive for more than 9 years after the

execution of Ex.D4 settlement deed dated 29.12.2004. The Settlor had died

only on 26.08.2013.

12.It has been further submitted by the learned counsel for the

defendant that the Plaintiff has not specifically denied the execution of the

Ex.D4-settlement deed in plaint and also during the Trial. DW2-one of the

attesting witness has specifically stated that the Ex.D4 settlement deed was

executed in her presence wherein there was not put any questions regarding

execution and the physical and mental state of the settlor on the day of

execution of Ex.D4 settlement deed. To prove the due execution of the

Settlement Deed, DW2-Sheela prabakaran-one of the attesting witness has

been examined wherein she has deposed that A. Chinnaraj, the Settlor had

requested her to sign as witness in the settlement deed and that her father

https://www.mhc.tn.gov.in/judis and Settlor-Chinnaraj were colleagues and further deposed that on the day

of execution of Ex.D4 settlement deed, A. Chinnaraj, (the settlor), D.W.2

and another witness had went to the Registrar office and after reading the

settlement deed prepared by his Advocate, Ex.D4 settlement deed was

executed by A.Chinnaraj,-the Settlor. In this regard, the Plaintiff has not

cross examined DW2 attesting witness or even made any suggestion that

statement of DW2 are false. Thus the evidence of DW2 regarding the

execution of D4 settlement Deed remains unchallenged. All the precedents

relied by the Plaintiff pertain to proof of execution of Will and not

pertaining to execution of Gift deed. Therefore, the same are not applicable

to the present case. Hence, he seeks to dismiss the suit.

Issue No.6:

13. On a perusal of the records, it is admitted in the plaint

itself that the father of the parties purchased the suit property in his name

from the Tamil Nadu Housing Board and registered in Document No.4788

of 1991 on the file of SRO, Anna Nagar out of his own earnings vide

Ex.D3. Hence, it was his self acquired property. Accordingly, Issue No.6

is answered.

https://www.mhc.tn.gov.in/judis Issue Nos.2, 3,4, 5 & 7:

14. To prove the settlement Deed, D.W.1 was examined and

further, D.W.2 who is one of the attesting witnesses in the Settlement Deed

was examined wherein she admitted that she and another witness were

present along with the Settlor during the execution of the Settlement Deed

and signed in the said Settlement Deed. At that time, the Settlor was in

sound and disposing state of mind. Accordingly, Ex.D4-copy of the

Settlement Deed has been filed to prove the same.

15. Further, the suit property is self acquired property of the

Settlor, he has all the right over the suit property to settle in favour of any

person as his willing. On perusal of Ex.D4, it is clearly stated that the First

Daughter Smt. Anne Philomine who is the plaintiff herein or her heirs has

no right over the schedule mentioned property. The Settlor was living with

the defendant even after settling the suit property in favour of the defendant

in the year 2004 and died in the year 2013. It shows that the Settlor was

sound mind and disposing state of mind while executing the Settlement

Deed in the year 2004 and the same has been proved by D.W.2. After the

execution of the Settlement Deed, all revenue records related to the suit

properties have been mutated in the name of the defendant and the

https://www.mhc.tn.gov.in/judis defendant is paying all the statutory dues and charges in her name as

absolute owner of the property. Vide Ex.D5 to Ex.D9 and D13 to D15.

Hence, it makes clear that the Settlement Deed was executed with the

knowledge of the Settlor and not in complete control of the defendant.

Accordingly, Issue No.2 is answered. Since the settlor has settled his

property in favour of the defendant and the same is proved by the

defendant, the defendant died testate by executing the Settlement Deed.

Hence, the suit filed for partition on the ground of inheritance or succession

is not maintainable when the Settlor has executed the Settlement Deed in

favour of the defendant. Accordingly, Issue No.3 and 4 are decided against

the plaintiff. Further, the defendant is in the possession and enjoyment of

the suit property by virtue of the Settlement Deed and all revenue records

have been mutated in her name, the defendant accepted and acted upon the

said settlement Deed executed by the Settlor. Accordingly, Issue No.7 is

answered. Even as the plaintiff stated she was in the joint possession and

enjoyment the suit property, she has not proved the same any oral and

documentary evidence. Further, in the Written Statement, it is clearly stated

that the Settlement deed in favour of the defendant. But, on the pretext to

avoid the Court Fees, the Plaintiff has not taken any steps to amend the

prayer of the plaint seeking to declare the Settlement Deed as null and void

https://www.mhc.tn.gov.in/judis and accordingly, the plaintiff has not paid the proper Court Fees. Thus,

Issue No.5 is answered.

16. Once the settlement Deed was executed in favour of the

defendant since it is self acquired property of the Settlor, the plaintiff has

no right seeking for partition in the suit property by inheritance. Hence, the

plaintiff is not entitled to one half of the share in the suit property and any

other relief. Accordingly, issue Nos.1and 8 are answered.

17. In the result, the suit is dismissed. No Costs.

07.11.2024

Lbm

Index : Yes/No Internet: Yes/No Speaking/Non-speaking : Yes/No

Witnesses examined on the side of the plaintiff and defendant:

Marketing Manager - MR. T.R. Ramachandran (PW-1)

Assistant Executive Engineer (A.E.E) – Mrs. K.Ammu (DW-1)

https://www.mhc.tn.gov.in/judis Exhibits produced on the side of the plaintiff:

                        S.No      Exhibits                Description of documents
                          1.      Ex P1      Copy of the Death Certificate of Regina Chinnaraj.
                          2.      Ex P2      Copy of the Death Certificate of A.Chinnaraj
                          3.      Ex P3      Lawyers notice sent by the Plantiff to the Defendant.
                          4.      Ex P4      Reply sent by the Defendant to the plaintiff
                    Exhibits produced on the side of the defendant:

                        S.No      Exhibits                Description of documents
                          1.      Ex D1      Allotment letter Issued by TNHB to Mr.Chinnaraj.
                          2.      Ex D2      Sanction of Housing Advance by the Southern
                                             Railway
                          3.      Ex D3      Sale deed executed by TNHB to and in favour of
                                             Mr.Chinnaraj in Doc. No.4788 of 1991 SRO Anna
                                             Nagar.
                          4.      Ex D4      Settlement deed executed by Mr.Chinnaraj to and in