Madras High Court
T. Jothi vs N. Rakkiyannan (Died) on 18 July, 2025
S.A.No.663 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 02.07.2025
Pronounced on 18 .07 .2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A. No.663 of 2020
C.M.P.Nos. 13799 & 14067 of 2020
T. Jothi ...Appellant
Vs.
N. Rakkiyannan (died)
1. R. Balusamy
2. R. Chinnasamy ... Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 to set aside
the judgment and decree of the learned I Additional Subordinate Judge,
Erode, in A.S. No.84 of 2015 dated 12.11.2019 reversing the judgment
and decree of the learned Principal District Munsif, Erode, in O.S.
No.113 of 2011 dated 25.08.2014.
For Appellant : Mr.C.E.Pratap
For Respondents : Mr.I.C.Vasudevan
Page 1 of 26
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S.A.No.663 of 2020
JUDGMENT
In this Second Appeal, challenge is made to the judgment and
decree dated 12.11.2019 passed in A.S. No.84/2015 on the file of the I
Additional Sub-court, Erode, reversing the judgment and decree dated
25.08.2014 passed in O.S. No.113/2011 on the file of the Principal
District Munsif Court, Erode.
2. The Second Appeal has been admitted on the following
substantial question of law.
“Whether the appellate Court overlooked the fact that the
property purchased under Ex.B1 will take the character of
ancestral property, since it has been purchased out of the
sale proceeds of joint family property, sold by the
grandmother of the plaintiff on behalf of the 1st defendant
under Ex.A6?”
3. Considering the scope of the issues involved between the parties
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with regard to the subject matter lying in a narrow compass, it is
unnecessary to dwell into the facts of the case in detail.
4. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
5. Suffice to state that the plaintiff has laid the suit against the
defendants for partition in the suit properties. Briefly stated, according
to the plaintiff, the plaintiff and the defendants 2 and 3 are sister and
brothers. The 1st defendant is their father. The wife of the 1 st defendant,
namely, Nagammal, died on 20.05.2005. Item Nos. 1 to 3 of the suit
properties are ancestral properties of the 1st defendant. Item 4 and 5
were subsequently purchased by the 1st defendant under the sale deed
dated 25.01.1978 out of the income from the ancestral properties. Since
the 1st defendant is the kartha of the family, the sale deed was taken in his
name. In any event, items 4 and 5 are thrown into common hotch pot
and blended with existing properties. Hence, all the suit properties are
ancestral in nature.
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5.1. The plaintiff and the defendants have been enjoying the
properties without any partition and since it has become impossible for
the plaintiff to be in joint possession of properties, she demanded for
partition. However, the defendants gave evasive reply. On 06.02.2011,
the plaintiff made a final demand, but the defendants refused the same
stating that the revenue records for the portion of suit properties are in
their name. Mutation of revenue records are not in accordance with law
and the same is invalid. The further contention of the plaintiff is that as
per Hindu Succession Amendment Act 39, 2005, the plaintiff and the
defendants are entitled for ¼ share each in the suit properties. Hence the
plaintiff was constrained to file the above suit for partition.
5.2. The claim of the plaintiff was resisted by the defendants
stating that on 19.06.1930, the grand mother of the 1st defendant, namely,
Karuppammal and the mother of 1st defendant, namely junior Karuppal
jointly purchased an extent of 1.78 acres in S.F. No.1059/C. The said
property has been mentioned as Item Nos. 1 to 3 in the suit. Therefore,
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item Nos.1 to 3 are self acquired properties of Karuppal and junior
Karuppal. The father of the 1st defendant, namely, Nachi Navithan,
predeceased his mother senior Karuppal, when the 1st defendant was 3
years old. The said senior Karuppal died in the year 1950 leaving behind
the first defendant and his mother junior Karuppal as her legal heirs.
Subsequently, the 1st defendant's mother junior Karuppal died in the year
1954 leaving the 1st defendant as her only legal heir. Thereafter, the 1st
defendant constructed a tiled house in the first item and a terraced house
in the 2nd item out of his own earnings. The 1st defendant is therefore
entitled for item No.1 to 3 as separate property and has been in
possession and enjoyment of the same. All the revenue records are in the
name of the first defendant. Subsequently, the 1st defendant purchased
item Nos.4 and 5 of the properties under the sale deed dated 25.01.1978
out of his own earnings. Hence, all the suit properties are self acquired
properties of the 1st defendant and as such he is entitled to deal with the
same. It is incorrect to state that item Nos.1 to 3 of the suit properties are
ancestral properties and Item Nos. 4 and 5 are thrown into common
hotch pot. There was no joint family property and therefore, there is no
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question of common hotch pot and blending. It is further contended that
it is incorrect to say that the plaintiff and the defendants are in joint
possession and enjoyment of the suit properties and that the plaintiff
demanded for a partition. The plaintiff, being the only daughter of the 1st
defendant, her marriage was performed in a grand manner and by giving
'seer' as per custom of the community. The 1st defendant executed a
settlement deed in favour of the defendants 2 and 3 on 09.11.2010.
Hence, the defendant 2 and 3 are in possession and enjoyment of the suit
properties. The plaintiff, suppressing the above material facts filed the
present vexatious suit, which is liable to be dismissed.
5.3. In the reply statement filed by the plaintiff, it is submitted that
it is incorrect to say that the suit properties are self acquired properties of
the 1st defendant and that it is also false to state that the 1 st defendant
performed the marriage of the plaintiff in a grand manner by providing
'seers'. Since the 1st defendant himself is having ¼ share in the suit
properties, he is not entitled to execute a settlement deed in favour of the
defendant 2 and 3 in respect of the suit properties. The said settlement
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deed dated 09.11.2010 is a fabricated document for the reason that the 1st
defendant is not capable of understanding things going around him due
to his old age. Hence, the settlement deed is not binding upon the
plaintiff.
5.4 The trial court upon considering the above pleadings framed
the following issues:
1) "Whether the plaintiff is entitled to 1/4th share in the suit
properties and for the relief of partition and separate possession
as prayed for?
2) Whether the items 1 to 3 of suit properties are ancestral properties
in the hands of 1st defendant as contended by the plaintiff'?
3) Whether the suit properties are in joint possession and enjoyment
of the plaintiff and the defendants?
4) To what relief?
5) Whether the 4th and 5th items of suit properties are purchased by
the 1st defendant out of income from the ancestral properties?
6) Whether the settlement deed dated 09.11.2010 allegedly executed
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by the 1st defendant in favour of the 2nd and 3rd defendants is
valid or not?"
5.5. Before the trial court, the plaintiff examined herself as P.W.1
and marked Ex.A1 to Ex.A6. The 2nd defendant examined himself as
D.W.1 and two other witnesses as D.W.2 and D.W.3 and marked Ex.B1
to B6.
5.6. The trial court, upon considering the oral and documentary
evidence and the arguments advanced by the respective counsel for the
parties, decreed the suit as follows:
1. The share of the parties in the suit properties are hereby
declared as follows:
a) The share of the plaintiff' - 2/8
b) The share of the 2nd defendant - 3/8
c) The share of the 3rd defendant - 3/8
2. The defendants are directed to divide the suit properties
by metes and bounds in accordance with good and bad soil
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into 8 equal shares and allot the plaintiff two of such shares
3. Failing which, the plaintiff is at liberty to apply for
division of properties through Court by appointing a
commissioner and for passing a final decree of partition.
4. No costs.
5.7. Aggrieved by this, the defendants preferred an appeal before
the I Additional Subordinate Court, Erode, in A.S. No. 84/2015 praying
to set aside the judgment and decree passed in O.S. No.113/2011 by the
learned District Munsif, Erode.
5.8. By a judgment and decree dated 12.11.2019, the learned I
Additional Sub Judge, Erode, allowed the appeal by setting aside the
decree and judgment passed in O.S. No.113/2011 by the learned District
Munsif, Erode, dated 25.08.2014 and dismissed the suit.
6. Aggrieved over the same, the plaintiff is before this Court with
the present Second Appeal.
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7. The learned counsel appearing for the appellant/plaintiff submits
that the First Appellate appellate Court has committed an error of law to
the facts and circumstances of the case by not placing any reliance on
Ex.A6 sale deed dated 19.06.1930 and the specific recitals contained
there under in its entirety as acceptable evidence to prove the properties
in Item Nos.1 to 3 as ancestral in nature, erroneously held that the trial
Court committed blatant error.
7.1. His further contention is that the specific recital contained in
Ex.A6 is a verbatim recital found in Ex.B1 which would testify the
factum of Item Nos. 1 to 3 of suit properties are purchased by senior and
junior Karuppal entirely out of the sale proceeds received as
consideration by selling the property under Ex.A6 and therefore, it must
be strictly construed in law as ancestral properties wherein the appellant
plaintiff is entitled to ¼ share claimed in the suit. His further contention
is that Items Nos. 4 and 5 of the suit properties alleged to have been
purchased by the 1st defendant on 25.01.1978 vide Ex.B1 sale deed was
out of the income from the ancestral properties and the said documents
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stand exclusively in the name of the 1st defendant which in the facts is
clearly deposed by D.W.1 in cross examination and therefore, the same
shall be treated as ancestral properties. It is further submitted that the
first appellate court had committed an error by not considering the fact
that the character of the suit properties as ancestral by virtue of non
application of Section 14(2) of the Hindu Succession Act, 1956 to the
instant case because of the death of the `senior and junior Karuppal in
the year 1950 and 1954 respectively much prior to the commencement of
the Act in 1956. The first appellate court further failed to consider
Ex.B3 settlement deed dated 09.11.2010 wherein the properties have
been described as ancestral properties, which itself is sufficient to
establish the fact that the 1st defendant himself treated the suit properties
as ancestral properties. Hence the findings rendered by the first appellate
court is perverse and prays for interference by this Court.
8.Heard both sides, records perused.
9.The substantial point that requires consideration in the appeal is,
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whether suit item nos. 1 to 3 that the 1 st defendant got by inheritance are
to be regarded as ancestral or self acquired properties in his hands. The
initial burden of proof is on plaintiff who asserts the said properties to be
ancestral properties. According to the plaintiff, though item nos. 1 to 3
are purchased in the names of two women, they are still ancestral
properties since, the said properties were purchased after selling the
ancestral property of her grandfather under Ex.A.6. On perusal of Ex.A.6
it is seen that the plaintiff's great grandmother Senior Karuppal and the
1st defendant as minor represented by his mother Junior Karuppal sold an
extent of 1.14 acres in old S.F.Nos.1036 and 1037 of Thuyyam Poondurai
Village in favour of one Muthu Gounden. As rightly, held by the trial
Court, Ex.A.6 sale deed and Ex.B.1 sale deed has some relevance. The
relevant paragraph from the judgment of the trial Court in this regard is
extracted as hereunder:
'' Firstly, Ex.A6 and Ex.B1 are executed on the same day,
namely 19.6.1930; Ex.A6 was registered as Doc.
No.1473/1930 in the office of Sub-Registrar, Erode and
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Ex.B1 was registered as a next document as Doc.
No.1474/1930.
2. Secondly, one Muthu Gounden, s/o. Muthu
Gounden was the purchaser in Ex. A6 and he was the
seller in Ex.B1.
3. Thirdly, Subject matter in Ex.A6 was 1.14 acres in SF.
Nos. 1036 and 1057 and the subject matter in Ex.B1 is
1.78 acres in SF. No.1059C. Both these lands are situated
in same Thuyyam Poondural Village and it appears that
they are situated in the same locality.
4. Fourthly, the sale consideration in Ex.A6 and Ex.B1
are same, namely, Rs.100/-.
5. Fifthly and most importantly, the purpose of the sale in
both sale deeds are same. In Ex.A6 it has been recited as
follows :-
,jdoapy; fz;l g{kpfis UP/100/00f;F fpiuak; bra;J bfhLj;J ntW
g{kp fpiuaj;jpw;F th';Ftjw;fhf buhf;fk; bgw;Wf;bfhz;lJ UP/100/00/
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In Ex. B1 also there is similar recital, which as follows:-
,jdoapy; fz;l g{kpia UP/100/00f;F fpiuak; bra;J bfhLj;J
ntW g{kp fpiuaj;jpw;F th';Ftjw;fhf buhf;fk;
bgw;Wf;bfhz;lJ UP/100/00/
From the recital in Ex. A6, It reveals that Sr.Karuppal and the
minor 1st defendant have sold their property for a sum of Rs.100/- to one
Muthusamy and purchased items 1 to 3 of the suit properties on the same
day under Ex.B1 from the same Muthusamy and for the same sale
consideration. Therefore it can be safely held that the item nos.1 to 3 of
suit properties purchased by Senior and Junior Karuppal are entirely out
of sale proceeds from selling the property under Ex.A6 and that they did
not spend any other money for purchase of the same. Now, it has to be
seen whether the property sold under Ex.A.6 is ancestral in nature. The
trial Court has come to the conclusion that the property sold under
Ex.A.6 is the ancestral property of the 1st defendant. The relevant
portion of the judgment is extracted as hereunder:
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11. The learned counsel for the plaintiff submitted that
the properties sold under Ex.A6 was the ancestral
property and therefore, the property purchased under
Ex.B1 is also an ancestral property as the same was
purchased from the sale proceeds of ancestral property.
For drawing such analogy, It has to be proved that the
property sold under Ex.A6 was an ancestral property. To
find out the same, except Ex.A6, no other materials or
evidence are available. Hence, this court has to decided
the same from the recitals and circumstances emanating
from Ex.A6. In Ex.A6, there is no mentioning that the
properties are ancestral properties or the same was
inherited from a male member. The learned counsel for
the plaintiff submitted that 1st defendant is one of the
vendors in Ex.A6 and he was represented by his mother.
Therefore, he contended that the property sold under
Ex.A6 is the property inherited by the 1st defendant
either from his father or from his grand father. On the
other hand, the learned counsel for the defendants
submitted that 1st defendant was a boy at that time and
his name might have been included by way of precaution.
He submitted that there is no recital in Ex.A6 that he got
the property ancestrally, but there is an assertion that it
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was their own property. In this regard, the learned
counsel for defendants referred to recitals in the
description of property in Ex.A6, which is extracted as
follows :-
“Ja;ak;g{e;Jiw fpuhkj;jpy; v';fSf;F ghj;jpag;gl;L
eh';fs; mDgtpjJ ; tUfpw f/r/1036 be/g[/V/12/8f;F 9/13/0
f/r/1037 be g[/V/2/21f;F 1/13/0 Mf Vf;fh; 14/29f;F 11/10 ,jpy;
v';fs; g';fhrhuk; njhl;lk; g[";ir cs;gl bghJtpy; Vf;fh; 1/14
,e;j g{kpa[k”; /
The learned counsel for the defendant submitted that
there is a specific recital in Ex.A6 that the property
belongs to them, and that they are in enjoyment of the
same. He further submitted that there is no recitals that
the property has been inherited from any male member
and hence, it was the property of a woman.
12. According to the defendants, the mentioning of the
name of 1st defendant as one of the vendors in Ex.A6,
might be out of precaution. The sentence “v';fSf;F
ghj;jpag;gl;L eh';fs; mDgtpj;J tUfpw” denotes that the
property sold under Ex.A6 was belonging to Sr. Karuppal
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and her minor grandson. Hence, this court cannot
overlook this aspect and ignore the name of 1st
defendant. When the defendants are contending that there
is no specific mentioning that the property was ancestral
property, equally, there is no specific mentioning that the
property was independent or self acquired or Stridhana
property of Sr. Karuppal. In the absence of any such
specific recitals, this court has to take the sentence in its
plain literal meaning. As per these recitals, the property
sold under Ex.A6 was indeed the joint property of
Sr.Karuppal and her grandson.
13. Regarding Ex.A6, the defendants cross-examined the
PW1 and the same is as follows :-
“th/rh/M/6y; fpuak; bra;ag;gl;l brhj;J vd; je;ijf;F
g{h;tpf tifapy; ghj;jpag;gl;l brhj;J vd;w thrfk; ,y;iy
vd;why; rhpjhd;/ thrhM/6y; fz;Ls;s brhj;J vd;
je;ijapd; g{h;tPf brhj;nj my;y vd;why; rhpay;y/ tHf;fpwf; hf
me;j brhj;J g{h;tPf brhj;J vd;W jtwhf brhy;Yfpnwd;
vd;why; rhpay;y/ vd; je;ijf;Fk; vd; je;ijapd; ghl;of;Fk;
jdpgg; l;l Kiwapy; ghj;jpag;gl;l brhj;Jfs; th/rh/M/6y;
rk;ke;jg;gl;l brhj;J vd;why; rhpay;y”/
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Even the defendants have put a suggestion to the PW1
that the property sold under Ex.A6 was joint properties of
Sr. Karuppal and 1" defendant. By putting this
suggestion, the defendants have admitted that the 1
defendant has half share in the property sold under
Ex.A6. But such suggestion was put forth on the pretext
that it was the individual property of 1 defendant and
Sr.Karuppal. Now, let us look into probable scenarios
under what circumstances a grandmother and her
grandson could jointly own properties.
14. Even under old Hindu, women were entitled to hold
properties of their own by way of Stridhana. Normally,
women can acquire property by way of gift from her
parents or other relatives or gift from her husband. If the
property sold under Ex. A6 was belonging to senior
Karuppal alone, it can be assumed that she got the same
by way of gift or Inheritance from her parents or
purchased by her own means. The presence of 1st
defendant as co-owner of the property has ruled any
possibility that the property sold under Ex.A6 being her
stridhana property. Because, there is no chance of a
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grandson being a co-owner in the Stridhana property of
a woman.
15. The 1st defendant's mother Junior Karuppal enters in
the family as a daughter-in-law and it seems that she did
not bring any property of her own into the family. That
was why, she was not shown as a vendor, but shown only
as a guardian of the minor. The 1st defendant was a
minor and most probably he might be aged 5 years at the
time of Ex.A6 and Ex.B1. Therefore, unless he inherited
the property, there is no chance of him purchasing or
owning any property by himself. Most probably, the 1st
defendant acquired right in the property by way of
inheritance from his grandfather or from his father. If the
1st defendant acquires a property by way Inheritance
from his father or grandfather it will be his ancestral
property. If half of the property is ancestral property of a
minor boy, there is more chance of remaining half also
being ancestral.
16. To clarify the nature of property, after marking Ex.
A6, the plaintiff recalled the DW1 and cross-examined
him. The relevant portion of cross-examination of DW1 is
as follows :-
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“vd; je;ijf;F fhh;oadhf mthpd; jha; fUg;ghs; kw;Wk; mth;
rhh;gpy; nrh;j;J xU Kj;Jft[zl; h; kfd; Kj;Jft[zl; Uf;F
UP/100/- xU brhj;ij fpuak; bra;Js;shh; vd;why; rhpjhd;/
mjpy; g[y vz;.1036. 1037 y; mike;Js;s bghJtpy; 14.20
Vf;fhpy; 1.14 Vf;fh; fpuak; bra;ag;gl;Ls;sjhy; mJ
ghfk;gphpff; g;glhj g{h;tPf brhj;J vd;why; rhpay;y”/
As pointed out by the plaintiff, the property sold under
Ex.A6 was only an undivided share measuring 1.14 acres
out of total extent of 14.29 acres. It would show that the
family had an undivided interest in a large extent of
property. There are certain pertinent questions arising in
this aspect. The only person who could answer those
question is none other that the 1st defendant. Though he
was a minor at that time, he might have acquired
personal knowledge about the nature of property as he
grew up. As on today, the 1st defendant is aged around
90 years. The plaintiff says that the 1st defendant is not
in a fit state of mind and she has made such contention in
order to dispute the validity of a settlement deed executed
by him in favour of 2nd and 3rd defendants. On the other
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hand, the 2nd and 3rd defendants say that 1st defendant
is healthy, ambulatory, but he could not move out of his
house. If the 1st defendant was examined as a witness, it
would have been helpful for this court to decide this
complex issue.
17. From the fact that the mother of the 1st n defendant
did not execute as an owner of the property, but she was
included only as a guardian of the minor, it would show
that the property was inherited by the 1st defendant from
his paternal side. If the property sold under Ex.A6 was
the Stridhana property of Sr. Karuppal, there is no
necessity for her to make her grandson as one of the
executants. All these factors would show that the property
sold under Ex.A6 was not the Stridhana property brought
by senior or junior Karuppal from their parents or from
their individual purchases. The only possibility is that
senior Karuppal and her grandson the 1st defendant
should have jointly inherited the property from a male
member. Therefore, it is hereby held that the property
sold under Ex.A6 was ancestral property in the hands of
the 1 defendant when he was minor and it was the
property, Inherited by Sr. Karuppal from her husband.''
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10.Therefore, the trial Court has rightly held that the property sold
under Ex.A.6 was an ancestral property and therefore, the property
purchased under Ex.B.1 is also an ancestral property as the same was
purchased from the sale proceeds of ancestral property. Normally, if a
property is purchased out of sale consideration from an ancestral
property, the same would be regarded as an ancestral property. The 1st
appellate Court failed to consider Ex.A.6 in a right perspective, and
simply ignored Ex.A.6 by stating that the plaintiff failed to plead about
A.6 in the plaint. The judgment of the trial Court was right in ruling out
the possibility of the property being sold under Ex.A.6 as Stridhana
property on the pretext that no grandson will be a co-owner in the
stridhana property of a women. Moreover, the defendants themselves
admitted that their father namely the 1st defendant had half share in the
property sold under Ex.A.6. The first appellate Court failed to consider
the above facts and erroneously held that the suit properties in item nos.
1 to 3 are the separate properties of the 1 st defendant. The trial Court has
rightly held that even though the properties are purchased in the name of
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two women and that they have died prior to the advent of the Hindu
Succession Act 1956, and as soon as sons were born to the 1st defendant,
the property retains its character as ancestral one. Furthermore, the trial
Court was right in holding that since the defendants failed to establish
the source of purchase money spent towards purchasing item nos. 4 and 5
and that the 1st defendant failed to enter the witness box to explain about
his independent income for purchasing the above properties, the 4th and
5th items of suit properties are also ancestral properties purchased from
the income derived from the ancestral properties.
11.The First Appellate Court was wrong in interfering the well-
reasoned judgment of the trial Court and erred in holding that acceptance
of Ex.A.6 as evidence by the trial Court as blatant error without due
regard to the fact that the trial Court has arrived at a conclusion while
determining the nature of item nos. 1 to 3 are ancestral by perusing the
recitals in Ex.A.6 which is similar to the recitals in Ex.B.1 and the same
would establish the fact that Ex.B.1 properties were purchased entirely
out of the sale proceeds from selling the property under Ex.A.6.
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Moreover, when a property is substituted for another, the property that is
acquired part-takes of the nature of the estate for which it has been
substituted [Ref: Tod Singh & Ors vs. Begam Bai reported in AIR 1960
MP 64]. Furthermore, the first appellate Court failed to consider that
once the existence of ancestral properties are proved, the burden shifts on
the defendants to establish that the properties in item nos. 4 and 5 are the
self acquisitions of the 1st defendant. Since the defendants failed to prove
the independent income of the 1st defendant, the 4th and 5th items of the
suit properties should also be considered as ancestral properties
purchased from the income derived from the ancestral properties.
12.Hence, the first appellate Court was wrong in dismissing the
suit by interfering with the findings of the trial Court without
appreciating the factual and legal aspects as projected by the
appellant/plaintiff. The reasons given by the first appellate Court are
found to be perverse, not sound and proper to the facts and circumstances
of the case.
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13.In this result, the second appeal is allowed. The judgment and
decree of the learned I Additional Subordinate Judge, Erode, in A.S.
No.84 of 2015 dated 12.11.2019 is set aside and the learned Principal
District Munsif, Erode, in O.S. No.113 of 2011 dated 25.08.2014 is
confirmed. In these circumstances, the parties will bare their own costs in
this appeal. Consequently, connected miscellaneous petitions are closed.
18.07.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga/vsn
To
1. The Ist Additional Subordinate Judge, Erode.
2. The Principal District Munsif, Erode,
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
K.GOVINDARAJAN THILAKAVADI,J
bga/vsn
S.A.No.663 of 2020 &
C.M.P.Nos. 13799 & 14067 of 2020
18.07.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
