Madras High Court
Tmt.V.Chamundeeswari vs V.Ganapathy on 26 February, 2025
2025:MHC:584
AS.No.83 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.02.2025
PRONOUNCED ON : 26.02.2025
CORAM:
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
A.S.No.83 of 2013
Tmt.V.Chamundeeswari
... Appellant/Plaintiff
-Vs-
1. V.Ganapathy
2. N.Karthikeyan
3. N.Ganesh
... Respondents/Defendants
PRAYER: First Appeals filed under Section 96 of the Code of Civil
Procedure praying to set aside the Judgement and decree of the Trial Court in
O.S.No.14 of 2009 dated 26.07.2012 on the file of the III Additional District
Court, Tiruvallur at Poonamallee.
For Appellant : Mr.N.Ganesh
for Mr.P.Seshadri
For Respondents : Mr.M.V.Seshachari
*****
JUDGMENT
The plaintiff is the appellant and the defendants are the respondents
herein.
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2. For the sake of convenience, the parties will be referred to according
to their litigative status before the Trial Court.
3. The brief facts which are necessary for the disposal of this case is as
follows:-
The suit property originally belongs to one Chengeni Naicker and his
wife Tmt.Rukmaniammal @ Rukkammal. They had two daughters viz.,
Tmt.Navaneetham and Tmt.Unnamalai. Among them, Tmt.Navaneetham
predeceased her husband and they had no issues. Another daughter
Tmt.Unnamalai had one daughter viz., Tmt.Chamundeeswari [plaintiff] and
two sons viz., Mr.Nagarajan and Mr.Ganapathi [first defendant]. Whereas
Mr.Nagarajan died, and his legal heirs viz., Mr.Karthikeyan and Mr.N.Ganesh
were arrayed as defendants 2 and 3. It is is the specific case of the plaintiff
that after the demise of her grandfather Chengeni Naicker, the property jointly
devolves upon her grandmother Tmt.Rukmaniammal and their two daughters
Tmt.Navaneetham and Tmt.Unnamalai. Since Tmt.Navaneetham's husband
not claiming any right over the suit property, after the demise of
Tmt.Rukmaniammal, all the property jointly devolved upon her and her two
brothers. Accordingly, the plaintiff claimed 1/3 share in the suit property
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under Section 8 of The Hindu Succession Act, 1956.
4.The said suit was resisted by the defendants by contending that their
grandfather Chengeni Naicker died prior to the enactment of Hindu
Succession Act, 1956 qua during 1947. Therefore, on the demise of Chengeni
Naicker, limited right of life estate was conferred upon the widow of
Chengeni Naicker viz., Tmt.Rukmaniammal and that after the advent of
“Hindu Succession Act, 1956” [hereinafter called “1956 Act”], by operation
of Section 14(1), Tmt.Rukmaniammal's limited right blossomed into a full
right. As such, though originally the property belonged to Chengeni Naicker,
since he died prior to 1956 Act and by operation of Section 14(1) of the Hindu
Succession Act, the suit property becomes the absolute property of
Tmt.Rukmaniammal [grandmother of the plaintiff and the 1st defendant]. It is
in this background the defendant put forth a will dated 24.08.1982 executed
by Tmt.Rukmaniammal, bequeathing the entire suit property to the first
defendant and his brother late Nagarajan. Therefore, it is the contention of the
defendants that the plaintiff has no right in the suit property, and prayed to
dismiss the suit.
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5. Before the Trial Court, the plaintiff examined 2 witnesses viz., the
plaintiff herself, and Chengeni Naicker's son-in-law Natesan, qua the husband
of late Navaneetham. On behalf of the defendants, the 1st defendant himself
was examined as DW1, and the attestor to the Ex.B1-Will dated 24.08.1982
was examined as DW2. On behalf of the plaintiff, 10 documents were relied
and the defendants relied one document.
6. On the pleadings of either side, the Trial Court has framed the
following issues:-
(i) Whether late Tmt.Rukmaniammal is the widow of
Kuppusamy Naicker?
(ii)Whether the plaintiff is entitled for partition of the Suit
Schedule properties?
(iii)Whether the Plaintiff is entitled for past, present and
future mesne profits as claimed in the Plaint?
(iv)Whether the Suit property are the joint family properties
of the Plaintiff and the Defendants?
(v) Whether the particulars given by the Plaintiff regarding
the relationship are correct?
(vi)To what other reliefs is the Plaintiff is entitled?
(Extracted as it is)
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7. In respect of issue nos.1 and 5, the Trial Court held that in view of
filing of amended plaint, and the correction of errors regarding the
relationship, concluded that Tmt.Rukmaniammal is the wife of Chengeni
Naicker, as contended by the defendant. In respect of issue Nos.2, 3 and 4, the
Trial Court has concluded that in view of the death of Chengeni Naicker prior
to 1956, a limited right vests upon Chengeni Naicker's wife
Tmt.Rukmaniammal, and ultimately the same enlarged into a full right by
virtue of Section 14(1) of the Hindu Succession Act. Thus, concluded that the
suit property becomes the absolute property of Tmt.Rukmaniammal. It was
further held that the Will dated 24.08.1982 executed by Tmt.Rukmaniammal
has been proved in a manner known to law. Thus, as a concomittant,
dismissed the suit. Aggrieved with the same, the instant First Appeal has been
filed by the plaintiff.
8. Heard Mr.N.Ganesh, learned counsel for the appellant/plaintiff and
Mr.M.V.Seshachari, learned counsel for the respondents/defendants.
9. The learned counsel for the plaintiff would vehemently contend that
the entire crux of the issue rests upon the crucial factum of date of death of
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Chengeni Naicker. According to the plaintiff, the death was subsequent to
1956, but the defendants contended that it was prior to 1956. But, as a matter
of fact, the defendants never pleaded in their written statement as to this issue,
qua date of death of Chengeni Naicker. It was also contended by the learned
counsel for the appellant that, in the pre-suit notice and in the plaint, it was
specifically mentioned that after the demise of Chengeni Naicker, the property
jointly vests upon Tmt.Rukmaniammal, the plaintiff's mother Tmt.Unnamalai
and her maternal aunt Tmt.Navaneethammal, which would demonstrate the
death of Chengeni Naicker subsequent to the advent of the Hindu Succession
Act, 1956, and that this was not specifically denied by the defendants. The
learned counsel would also contend that, nowhere in the written statement, the
date of death of Chengeni Naicker is referred, so as to invoke the principles of
old Hindu Law. It was further contended that constitutionally recognised
property right cannot be decided based upon the surmises and conjunctures,
all the more, the contention of existence of pleading, albeit unobtrusively is
unknown to law. It was further contended that the Will executed by
Tmt.Rukmaniammal is ipso facto void as she did not have any absolute right
over the property and that the Will [Ex.B1] has not been proved in a manner
known to law. He would also submit that beyond the pleadings, the Trial
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Court by presuming and assuming certain things, had arrived at an erroneous
finding. Hence, prayed to allow this appeal. In support of his contention, he
relied upon the following judgements:-
(i) Ram Sarup Gupta (dead) by L.Rs. Vs. Bishun Narain
Inter College and others reported in 1987 2 SCC 555;
(ii)Prakash Rattan Lal Vs. Mankey Ram reported in 2010 0
Supreme(Del) 51;
(iii)Kalyan kumar Gogoi Vs. Ashutosh Agnihotri and
another reported in 2011 (1) Supreme 545;
(iv)Anita Sonkar Vs. Shakuntala Misra reported in 2014 0
Supreme (All) 2746;
(v) Sri Shivaji Balaram Haibatti Vs. Sri Avinash Maruthi
Pawar reported in (2018) 11 SCC 652.
10. Per contra, the learned counsel for the respondents would
vehemently contend that the wholesome reading of the Written Statement
would indubitably manifest the basis to apply the uncodified Hindu Law, and
that the plaintiff cannot expect the defendants to plead the law, and that their
pleadings unequivocally demonstrate the death of Chengeni Naicker prior to
1956. It is in this background, contended that Tmt.Rukmaniammal's limited
right metamorphed into an absolute right. As such, by virtue of Ex.B1-Will,
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the defendants became the absolute owner. Hence, he prayed to dismiss the
appeal.
11. I have given my anxious consideration to either side submissions.
12. While considering the submissions made by either side and also
considering the pleadings and evidence, the following points are emerging for
our consideration:-
(i) Whether Chengeni Naicker died prior to 1956?
(iii) Whether the Will executed by Tmt.Rukmaniammal has been proved
in a manner known to law?
(iii) Whether the plaintiff is entitled for a partition as prayed for?
(iv) To what other relief?
Point No.1
13. The entire issue revolves around, date of death of Chengeni
Naicker, and it's offshoot of the application of Hindu Succession Act, 1956. It
is well settled principle of law that in order to invoke the provisions under
Hindu Succession Act, 1956, the trigger point is the date of death of the owner
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of the property. In this case, it is an admitted fact that the suit property
originally belongs to Chengeni Naicker by virtue of sale deed dated
27.12.1947 referred under Document No.2361/1944. But, as rightly
contended by the learned counsel for the plaintiff, nowhere in the written
statement the defendants refers to the date of death of Chengeni Naicker. At
this juncture, it is appropriate to refer the pre-suit notice dated 11.02.2008 sent
by the plaintiff under Ex.A3. In the pre-suit notice, it has been avered that
after the death of Chengeni Naicker, the property jointly devolves upon
Chengeni Naicker's two daughters viz., Tmt.Unnamalai, Tmt.Navaneetham
and his wife Tmt.Rukmaniammal. Therefore, the plaintiff's precise case is
that after the demise of Chengeni Naicker, the property devolved upon
Tmt.Rukmaniammal and her two daughters.
14. The suit was instituted in the year 2007 i.e., after 63 years from the
date of purchase of the suit property and after 50 years from the date of
enactment of Hindu Succession Act, 1956. Therefore, it is common
knowledge that the pleadings in their plaint as well as in Ex.A3-Notice,
categorically demonstrate that the plaintiff has set up a case that Chengeni
Naicker died subsequent to 1956. But, such factum was strongly objected to
by the defendants, for first time during his oral evidence by stating that
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Chengeni Naicker died in 1947.
15. Admittedly, both side did not submit any documentary evidence as
to the date of death of Chengeni Naicer. If really the defendants are strong
enough and confident that Chengeni Naicker died during 1947, they could
have very well pleaded in their written statement. No doubt it is the
primordial duty of the plaintiff to prove his case at the first instance. To
discharge her burden, the plaintiff has specifically pleaded that after the
demise of Chengeni Naicker, the property jointly devolved upon his wife and
two daughters. The said pleading has not been specifically denied by the
defendants, but in contrast they took strong defence that the plaintiff is noway
related, either to Tmt.Rukmaniammal or to the defendants.
16. To put it differently, it is the case of the defendants that the plaintiff
did not relate to the original owner Chengeni Naicker, therefore, there is no
possibility for her to succeed the suit property jointly with them. But, during
Trial, the relationship was admitted by the defendants. However, the learned
counsel for the defendants would invite the attention of this Court as to certain
admissions of PW1, and through these admissions, the defendants projected a
case that there was no possibility for Chengeni Naicker to be alive until the
enactment of 1956 Act. For ready reference, this Court deems it appropriate
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to extract those admissions:-
“vd; mk;khtpw;F 5 taJ ,Uf;Fk; nghnj br';nfdp ehaf;fh; ,we;Jtpll; jhf
vd;; ghl;o Uf;kzp mk;khs; brhy;yp cs;shh;/ vd; ghl;o Uf;kzpapd; cld;
gpwe;j rnfhjuh; ehuhazd;/ br';nfdp ehaf;fh; 1947y; fhykhfptpl;lhh; vd;W
brhd;dhy;. 1956f;F Kd;ghf br';nfdp ehaf;fh; ,we;Jtpl;lhh; vd;W
brhd;dhy; vdf;F rhpahf bjhpatpy;iy/ 1956Mk; Mz;Lf;F Kd;ng vd;
jhj;jh ,we;Jtpl;ljhy; mtUf;F xnu thhpR Uf;kzp mk;khs; vd;W brhd;dhy;
rhpay;y/”
17. The above admission was relied by the Trial Court to presume that
the death of Chengeni Naicker may be between 1952 or 1953. But, a
harmonious reading of the above admission would only demonstrate that the
plaintiff did not know as to the exact date of death, but her pleadings in the
plaint reflects that such death was subsequent to the enactment of Hindu
Succession Act, 1956.
18. If really Tmt.Rukmaniammal possessed any limited interest, which
had a prospect to blossom into an absolute right, there was every possibility to
mutate the property in her name. Here, there are no records in respect of
mutation. Besides, since the suit has been filed after 51 years from 1956 Act,
we may safely presume that any succession would only govern by Hindu
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Succession Act, 1956, as a rule, unless the contra is shown. Therefore, it is
for the person, who plead contra, to establish such exception with specific
pleading. In the case in hand, such pleading overtly is absent. In such view of
the matter, the nonchalant and elusive attempt of the defendants to prove
contra cannot be appreciated.
19. The above reasoning further vindicated and reinforced from the fact
that until filing of the suit, no mutation took place in respect of the suit
property and this factum was also admitted by the defendants. If really
Chengeni Naicker died prior of 1956, and limited interest vest upon
Tmt.Rukmaniammal and blossomed absolute right, she would have mutated
the property in her name. The very fact the suit property still stands in the
name of Chengeni Naicker would demonstrate the continuance of the property
jointly even after the demise of Chengeni Naicker. It is in this background,
the absence of pleadings in the written statement in respect of date of death of
Chengeni Naicker assumes much significance. As rightly contended by the
plaintiff, without any pleading, the defendants cannot sprinkle the date of
death of Chengeni Naicker in the trial.
20. At this juncture, it is appropriate to refer the judgments relied upon
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by the learned counsel for the appellant. The Hon'ble Supreme Court in Ram
Sarup Gupta's case [cited supra] held that no party should be permitted to
travel beyond their pleading. It has further elaborated the importance of the
pleading and held that the pleading is imperative to enable the adversary party
to know the case, they have to meet. It is further held in the above judgment
that, in order to have a fair trial, it is axiomatic that the parties should state the
essential material facts so that the other party may not be taken by surprise.
21. In addition to the above rulings, on the very same principle, the
appellant also relied upon some other judgments. For brevity sake, wee desist
from referring all the other similar judgments relied by the learned counsel for
the appellant.
22. Though the learned counsel for the defendants relied upon a
judgment of the Hon'ble Supreme Court in Arunachala Gounder Vs.
Ponnusamy and others reported in (2022) 11 SCC 520, which is a case on the
subject of as to how succession has to be dealt when male member dying
intestate, based upon the uncodified Hindu Law. This Court does not have
any grievance over the proposition laid down in the above Apex Court
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judgment. But the real issue is, whether the defendants have established their
case that the death of Chengeni Naicker is prior to 1956. The answer to the
above query is “negative”.
23. Once, there is no proof as to the death of Chengeni Naicker prior to
1956 by virtue of Section 8 Hindu Succession Act, the property devolves upon
Tmt.Rukmaniammal, Tmt.Navaneetham and Tmt.Unnamalai. Admittedly,
Tmt.Navaneetham died issueless and her only legal heir Mr.Natesan was
examined before the Court and has deposed that he does not want any share
from the suit property. In view of the above statement, the property has to be
divided into two equal share and has to be divided between
Tmt.Rukmaniammal and Tmt.Unnamalai alloting one such share to each one
of them.
24. But in this case, the second line of defence put forth by the
defendants is a “Will” [Ex.B1] executed by Tmt.Rukmaniammal. In order to
prove the said Will, the attestor to Ex.B1-Will, qua DW2 was examined.
Though the execution of the “Will” was disputed, through the evidence of
PW2, they proved the Will satisfying the ingredients of Section 63 of The
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Indian Succession Act, and Section 68 of The Indian Evidence Act. The
testator Tmt.Rukmaniammal died almost 20 years after the execution of Will.
In fact, the plaintiff did not dispute the disposing state of mind of
Tmt.Rukmaniammal and she did not project any suspicious circumstances.
Therefore, this Court is of the firm opinion that the defendants have
discharged their burden in proving Ex.B1-Will.
25. From the above detailed discussion, what emerges is,
1. the partition has to be considered in accordance with Section 8 of the
Hindu Succession Act, 1956 as the death of Chengeni Naicker was after
the advent of the above 1956 Act.
2. The Will executed by Tmt.Rukmaniammal is proved.
Accordingly, the Chengeni Naicker's property jointly devolved upon
Tmt.Rukmaniammal and her two daughters entailing each one of them having
right of 1/3 share. Here, in view of relinquishment of share by Navaneetham's
husband [PW2], her property also devolve upon Tmt.Rukmaniammal and
Tmt.Unnamalai equally. As such, each one of them will have ½ share in
Chengeni Naicker's property.
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26. Here, Tmt.Unnamalai has 3 children. Therefore, the plaintiff is
entitled only to 1/3rd share in Tmt.Unnamalai's share and she do not have any
right in Tmt.Rukmaniammal's property, as she executed Will in favour of the
D1, D2 and D3's father late Nagarajan. If that being the case, the plaintiff is
entitled for a share of 8/48, and the 1st defendant is entitled to have 20/48 and
the defendants 2 and 3 each entitled to have 10/48.
27. In the result, the Appeal Suit is partly allowed granting a decree of
partition to divide the suit property into 48 shares and to allot 8 shares to the
plaintiff. There shall be no order as to costs. Consequently, connected CMP is
also closed.
26.02.2025
Index : Yes
Speaking Order
NCC : Yes
kmi
To
The III Additional District Court,
Tiruvallur at Poonamallee.
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C.KUMARAPPAN, J
kmi
Pre-Delivery Judgment in
26.02.2025
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