Madras High Court
Ms.Rukmani R Viswanathan vs Gita Viswanathan on 25 February, 2025
CS No.639 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2025
CORAM:
THE HON`BLE MR.JUSTICE A.A.NAKKIRAN
C.S. No. 639 of 2017
1.Ms.Rukmani R Viswanathan
2.Ms. Gayatri R.V. ....Plaintiffs
...Vs....
1.Gita Viswanathan
2.Ms. Ram Viswanathan
@ Ramaswamy ....Defendants
Prayer: Plaint filed under order IV, rule 1 of O.S. rules r/w order VII, rule 1
C.P.C.
a.For declaring the Plaintiffs 2/3d share in Item No.1 and 2/6th (1/3)
share in Item No.2 of the schedule mentioned property, more fully described
in the Schedule hereunder as Item Nos.1 and 2 and pass a preliminary decree
for to such effect;
b. For directing the Defendants to pay the costs of the suit, and
c. For granting such further or other reliefs
1/16
https://www.mhc.tn.gov.in/judis
CS No.639 of 2017
For Plaintiffs : Mr. A.K. Sriram Senior Counsel
(For M/s.P.B. Ramanujam)
For Defendants : Mr. Om Prakash Senior Counsel
(For M/s.Sudha Ramalingam)
******
JUDGMENT
This Civil Suit is filed seeking the relief as stated above.
2. The case of the Plaintiffs, as set out, in the plaint, is as
follows:-
(i)The 1st Defendant is the paternal grandmother of the
plaintiffs and the 2nd Defendant is their father. The property bearing No.9-
A, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai 600 031, now bearing
No. 11/29, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai 600 031,
hereinafter referred to as Item no.1 in the Schedule hereunder, was an
ancestral/joint family property at the hands of Dr. M.R. Guruswamy
Mudaliar, who is none other than the grandfather of the 2nd Defendant and
great grandfather of the Plaintiffs. The said property later came to be vested
https://www.mhc.tn.gov.in/judis
in the hands of Late. G. Viswanathan, the son of Late. Dr. M.R. Guruswamy
Mudaliar, father of the 2nd Defendant and grandfather of the Plaintiffs.
ii). While the said Sri. G. Viswanathan was alive, he was
controlling the suit property, for both himself and on behalf of his son, till
June, 1972. On 17.06.1972, the said Sri. G. Viswanathan, entered into a
deed of partial partition with the 2nd defendant which was duly registered on
the file of Sub-Registrar, Sowcarpet in Doc. No. 399/1972. In and by the
said partition deed the coparcenary property was divided and the suit
property (Item No.1) being a portion of the same stood allotted to the 2nd
defendant, along with 2 other properties, viz., Door Nos.12 & 13,
Dr.Guruswamy Mudaliar Road, Chetpet, Chennai 600 031, with the 2nd
defendant taking the share allotted as the Kartha of the divided portion,
holding it for both himself and on behalf of the Plaintiffs, who are also
coparceners in view of the Amendment Act of 2005 to the Hindu Succession
Act, 1956, vide Act 39 of 2005. In fact the Plaintiffs reliably understand that
the properties, No.12 and 13, Dr.Guruswamy Mudaliar Road were sold even
prior to the birth of the Plaintiffs/commencement of the Amendment Act and
https://www.mhc.tn.gov.in/judis
since when the alienations were made the Plaintiff being the only
coparcener, the said alienations will bind the Plaintiffs also and hence the
Plaintiffs are not entitled to question the same.
iii).The 2nd Defendant has been controlling and enjoying the suit
property as a Kartha of his smaller/minor Hindu Undivided Family (HUF),
consisting of himself and the Plaintiffs. The Plaintiffs are entitled to a 1/3rd
share each as coparceners. The Plaintiffs are in joint and constructive
possession of the said Item No.1 of the suit property along with the 2nd
Defendant. Even in the deed of partition dated 17.06.1972, the father of the
2nd Defendant has clearly spelt out in clause 1, which reads as follows:
"....in pursuance of the said agreement the parties hereby agree and
declare that the parties shall henceforth hold the properties mentioned in the
respective Schedules as their share of property obtained on partition...."
Besides, a portion of the larger property has been set apart and mentioned as
Schedule 'C' in the partition deed dated 17.06.1972 in which the memorial of
the Late. Dr. M.R. Guruswamy Mudaliar, was erected which is as Item No.2
of the suit schedule property.
iv). During the life time of G. Viswanathan, the 1st Defendant's
https://www.mhc.tn.gov.in/judis
husband, poojas were conducted and the partition deed also mandates that
the poojas are to be conducted regularly in the memorial. After the demise of
G. Viswanathan, neither the 1st Defendant nor the 2nd defendant have
bothered to maintain the memorial. The Plaintiffs are also jointly entitled to
a 1/3rd share which is shown as Item No. 2 and they are in joint and
constructive possession of this item of property also.
v)The 2nd defendant now stands as a Karta for the suit
schedule property and consequentially entitling the Plaintiffs to a share each
as co-parceners, the defendants are therefore bound to accede to the requests
of the Plaintiffs who are seeking for a partition of the suit property, not being
self acquired property of the Defendants, but undivided joint family property
alone.
vi)Several requests were made to the Defendants on various
occasions calling upon the Defendants to come forward and effect a partition
of the undivided joint family property, there is no response from the
defendants. Hence, this Suit.
3. The case of the Defendants, as set out, in the Written
https://www.mhc.tn.gov.in/judis
Statement, is as follows:-
i) The Defendants' family was never a joint family holding the
properties as coparcenary joint Hindu property. The properties were held by
the 1st Defendant's husband and the 2nd Defendant's father late
G.Viswanathan as the absolute owner and not as kartha of a coparcenary
joint Hindu family.
ii) Late G. Viswanathan and the 2nd Defendant partially
partitioned the properties by a deed of partition dated 17.06.1972 in
document No. 399 of 1972 on the file of the Sub-Registrar, Sowcarpet. The
properties divided between the 2nd Defendant and his father was the
absolute property of his father Late Viswanathan. Ever since the partition,
the 2nd Defendant became the absolute owner of the properties allotted to
his share. The properties divided between the father and son were not co-
parcenary property. The 2nd Defendant did not take his share as kartha of
divided portions for himself and for and on behalf of the Plaintiffs. In fact,
the Plaintiffs were not even born in the year 1972 and the question of 2nd
https://www.mhc.tn.gov.in/judis
Defendant taking his share as kartha of the Plaintiffs does not arise.
iii) It is a nuclear family consisting of mother, son, son's wife
and his two children and not a Hindu undivided joint family. The 2nd
Defendant has been in possession and enjoyment of his properties as its
absolute owner and not as a kartha of his smaller/ minor Hindu undivided
family (HUF). The Plaintiffs are not coparceners and are not entitled to any
share as coparceners. The Plaintiffs were never in joint or constructive
possession of the said item No. 1 of the suit property. The 2nd Defendant is
in absolute possession and enjoyment of the said property as its absolute
owner since 1972.
iv). A portion of a land in No. 11/29 (Old No. 9-A) was set
apart for a memorial to Late Dr.M.R.Guruswamy Mudaliar. The Defendants
have been maintaining the memorial and performing pujas for the departed
great soul. The Defendants are pious Hindus who believe in paying
obeisance and worshiping their ancestors. After death of G. Viswanathan in
September 2012, his property devolved upon his widow the 1st Defendant
https://www.mhc.tn.gov.in/judis
and his son, the 2nd Defendant. The portion of the property marked as 'C'
Schedule in the partition deed 07.06.1972 and shown as item No.2 in the
plaint schedule was the absolute property of Late
G.Viswanathan and is not a undivided joint Hindu family property. The
Plaintiffs have no right or interest whatsoever over the property shown as
item No.2 in the plaint schedule. The Defendants are in possession and
enjoyment as its absolute owners after the death of G.Viswanathan. The
Plaintiffs were never in possession of the properties mentioned in item 1 or
item 2 of the schedule either actually or constructively. The Plaintiffs are not
coparceners and the properties are not co- parcenary properties. The
Plaintiffs have no right to seek partition of the absolute property of the
Defendants. Hence, this suit is liable to be dismissed.
3.Based on the above said pleadings, the following issues were
framed:
i) Whether the plaintiffs are entitled to 2/3rd share in
item Nos.1 and 2 of the suit schedule mentioned properties?
ii) Whether the properties obtained by the second
https://www.mhc.tn.gov.in/judis
defendant in the partial partition dated 17.06.1972 is, his
absolute property?
iii) Are not the properties allotted to the share of the
second defendant's father are ancestral properties in the hands
of the second defendant?
iv. Whether the plaintiffs are in joint and constructive
possession of item Nos. 1 and 2 of suit schedule property? And
iv) To what other reliefs the parties are entitled?
4.On the side of the Plaintiffs, the 1st plaintiff examined herself
as PW1 and Ex.P1 to Ex.P3 were marked. On the side of the defendants,
the 2nd defendant examined himself as DW1 and no documents were marked.
5. Heard both sides and perused the materials available on
records.
Issue Nos.2 and 3:
6.The learned counsel for the plaintiffs submitted that in view
https://www.mhc.tn.gov.in/judis
of the coparcenary property was divided between Late Sri. G. Viswanathan
and his son ie the 2nd defendant herein, by way of the partition deed dated
17.06.1972 and the contents of the partition deed, it makes clear that the suit
properties claimed by the plaintiff are the Hindu Joint Family Property. As
the daughters of the 1st defendant and the Grand daughters of Late Sri. G.
Viswanathan, the plaintiffs are entitled to a share in the suit schedule
property. Since the Plaintiffs are in joint and constructive possession in the
suit properties in Item Nos.1 and 2, they are jointly entitled to 1/3rd share
therein. Hence, he seeks the relief as prayed in the suit.
7.The learned counsel for the defendants submitted that Late G.
Viswanathan was the absolute owner of the suit properties and not as Kartha
of a coparcenary joint Hindu family. The 2nd defendant has obtained the suit
schedule properties by virtue of partition deed dated 17.06.1972 effected
between his father late G.Viswanathan and himself. Ever since the partition,
the 2nd defendant is its absolute owner and not as Kartha of a co-parcenary
Joint Hindu Family. It is a nuclear family consisting of mother, son, son's
wife and his two children.
https://www.mhc.tn.gov.in/judis
8.It has been further submitted by the learned counsel for the
defendants that the 2nd Defendant did not take his share as Kartha of divided
portion for himself and the plaintiffs. Further, as the Plaintiffs were not even
born in the year 1972, the question of 2nd Defendant taking his share as
kartha of the Plaintiffs does not arise. The plaintiffs have left the defendants
and on the ill-advice of their mother, who has sought a divorce from their
father, are seeking their share in the suit property. Neither the Plaintiffs are
coparceners and nor the Plaintiffs were in joint or constructive possession of
the said item No. 1 and 2 of the suit schedule properties. As the 2nd
Defendant is in absolute possession and enjoyment of the said properties as
its absolute owner since 1972, the plaintiffs are not entitled to any share in
the suit schedule properties as sought in the suit. Hence, this suit is liable to
be dismissed.
9.Heard the learned counsel for the plaintiffs and the learned
counsel for the defendants and also perused the materials available on
https://www.mhc.tn.gov.in/judis
record.
10.On a perusal of records, it is seen that as the Plaintiffs are
the daughters of the 2nd defendant, they are claiming their respective shares
in the schedule properties in Item No.1 and 2 as co-parcener in the Hindu
Undivided Family relying on the specific contents expressing in the Partition
deed dated 17.06.1972. In fact, the Item Nos. 1 and 2 in the suit schedule
properties are belonged to Late Dr.M.R. Guruswamy Mudaliar. After his
demise, the aforesaid suit schedule property became the absolute property to
Late G. Viswanathan who is the grand father of the plaintiffs, Husband of
the 1st defendant and father of the 2nd defendant.
11. The plaintiffs in support of their argument, have relied upon the
contents mentioned in Ex.P1 wherein it has been mentioned as below:
"....in pursuance of the said agreement the parties hereby
agree and declare that the parties shall henceforth hold the
properties mentioned in the respective Schedules as their share
of property obtained on partition...."
In the said partition deed effected between the father of the 2 nd defendant and
the 2nd defendant, there is no any contents either the suit property is
https://www.mhc.tn.gov.in/judis
coparcenary property or Hindu Undivided Family. It is seen that the parties
of the partition deed dated 17.06.1972 denotes only between the father of
the 2nd defendant and the 2nd defendant.
12. In so far as the Item No.1 of the suit property is concerned,
the father of the 2nd defendant executes the partition deed dated 17.06.1972
vide Ex.P1, in the name of the 2nd defendant by which the 2nd defendant
became the absolute owner of the item No.1 of the suit property. Further, the
defendants 1 and 2 are in possession and enjoyment of the same. At the time
of the execution of the partition deed dated 17.06.1972, the plaintiffs were
not even born. Hence, the Item No.1 of the suit schedule property is obtained
by the 2nd defendant in the partial partition dated 17.06.1972 is his absolute
property. Accordingly, issue No.2 is answered. In so far as the 2nd item of
the suit schedule property is concerned, it is the portion of the land in
No.11/29 (old No.9-A) consists of house of Memorial of Dr.Guruswamy
Mudaliar is the absolute property of late G.Viswanathan who is the husband
and son of the defendants 1 and 2 respectively and the Item No.2 of the suit
schedule property was in possession, enjoyment and maintained by father of
https://www.mhc.tn.gov.in/judis
the 2nd defendant till his death. After his death, the defendants 1 and 2
being the Class-I legal heirs, have the absolute right, title and interest over
the item No.2 of the suit schedule property and at present, the plaintiffs do
not have any right over the aforesaid property. Further, despite the
plaintiffs have stated that they are in the possession and enjoyment of both
suit schedule properties, they have not produced any oral and documentary
evidence to prove the same. Hence, it is seen that the plaintiffs are not in the
possession and enjoyment of the aforesaid suit schedule properties.
Accordingly, issue no.3 is answered.
Issue Nos.1,4, and 5:
13.Even though the plaintiffs have marked the Ex.P1 to Ex.P3,
they have not proved that the item Nos.1 and 2 of the suit schedule
properties are ancestral or coparcenary property and belongs to Hindu
undivided Family. Further, they have not produced any oral and
documentary evidence to prove that they are in the possession and
enjoyment of the suit schedule property. Hence, the plaintiffs are not entitled
to any share in the suit schedule mentioned properties. Accordingly, Issue
https://www.mhc.tn.gov.in/judis
Nos. 1, 4 and 5 are answered.
14. In the result, the suit stands dismissed. No costs.
25.02.2025
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
lbm
A.A. NAKKIRAN, J,
Lbm
https://www.mhc.tn.gov.in/judis
Witnesses examined on the side of the plaintiffs and defendants:-
P.W.1. - Ms.Rukmani R. Viswanathan
D.W.1: Mr.Ram Viswanathan
Exhibits produced on the side of the plaintiffs:-
S.No. Exhibits Description of Documents
1. EX.P1 Certified copy of the partition deed dated 17.06.1972.
2. EX.P2 Printout of the death certificate of Viswanathan, date of issue
31.07.2017.
3. EX.P3 Certified copy of Affidavit of Assets.
Exhibits produced on the side of the Defendants:-
No documents were marked.
25.02.2025
https://www.mhc.tn.gov.in/judis
