Madras High Court
Chakrapani vs Rathinasabapathi on 26 November, 2025
S.A.No.598 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2025
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.598 of 2000 &
C.M.P.Nos.12026 of 2001 &
C.M.P.No.1692 of 2008 &
Cros.Obj.No.122 of 2001
Chakrapani ... Appellant
Vs.
1.Rathinasabapathi
2.Vasundra (Died)
3.Rajendran
4.Madanavalli Ammal
5.Palanivel
6.Anusuya
7.Sivagamasundari
8.Santha Sakkubai (Deceased)
9.Alluvani
10.Anandhavalli
11.Sathiyabama
12.Sathivathi
13.Sathiyavani
14.Sathiyakala
(R11 to R14 brought on
record as LRs of the
deceased R8 vide order of
this Court dated
01.02.2018 made in
CMP.Nos.577 to 579 of
1/40
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S.A.No.598 of 2000
2016 in S.A.No.598 of
2000)
15.G.R.Selvendran
16.G.R.Mehanadhan
17.Jayanthi Arjunan
18.Malasanmugam
19.Kavitha Sankar
(R15 to R19 brought on
record as LRs of the
deceased R2 vide order of
this Court order dated
24.06.2025 made in
CMP.Nos.7760, 7701 &
7702 of 2025 in S.A.No.598
of 2000)
... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgement and decree dated 11.10.1999 in
A.S.No.109 of 1998 on the file of Additional District Judge cum CJM
Court, Cuddalore, partially allowing the appeal filed by the
respondents 1, 5 & 6 along with others against the judgment and
decree dated 22.07.1998 in O.S.No.59 of 1989 on the file of Sub
Court, Chidambaram.
For Appellant : Mr.Anand for
Mr.Ilayaraja Kandasamy
For Respondents
1 to 7 : Mr.R.Srinath Sridevan,
Senior Counsel for
Mr.Girish
For Respondents
9 & 10 : Mr.R.Silambarasan
For Respondents
11 to 14 : Mr.G.Srivenkatesh
2/40
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S.A.No.598 of 2000
For Respondents
15 to 19 : Mrs.Avanthika Vasu
R8 – Died
In Cros. Obj.No.122 of 2001
1.Rathinasabapathi
2.Vasundra (Died)
3.Rajendran
4.Madanavalli Ammal
5.Palanivel
6.Anusuya
7.Sivagamasundari ... Appellants
Vs.
1.Chakrapani
2.Santha Sakkubai
3.Allirani
4.Anandhavalli ... Respondents
PRAYER: Cross Objection filed under Order XII Rule 22 of the Code
of Civil Procedure against the judgement and decree dated
11.10.1999 in A.S.No.109 of 1998 on the file of Additional District
Judge cum Chief Judicial Magistrate Court, Cuddalore, confirming
the judgment and decree dated 22.07.1998 in O.S.No.59 of 1989 on
the file of Sub Court, Chidambaram.
For cross objectors : Mr.R.Srinath Sridevan,
Senior Advocate for
Mr.Girish
3/40
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S.A.No.598 of 2000
For Respondent 1 : Mr.Anand for
Mr.Ilayaraja Kandasamy
COMMON JUDGMENT
This second appeal arises out of the judgment and decree of
the Court of Additional District Judge cum Chief Judicial Magistrate,
Cuddalore in A.S.No.109 of 1998 dated 11.10.1999, in partly
allowing the appeal and modifying the decree of the learned
Subordinate Judge at Chidambaram in O.S.No.59 of 1989 dated
22.07.1998.
2. The appellant is the plaintiff in the suit. He is aggrieved by
the modification of the decree of the lower appellate court. Insofar as
the portion of the decree granting the relief to the plaintiffs is
concerned, the defendants have preferred a cross objection in
Cros.Obj.No.122 of 2001.
3. For the sake of convenience, the parties will be referred to as
per their ranks in the suit.
4. O.S.No.59 of 1989 is a suit for partition and separate
possession. For ready understanding, the undisputed genealogy tree
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is hereunder:
Genealogical Tree
______________________________________________________________
| | |
Arumugha Govindasamy Thangavel
Thondaiman +
Dhanalakshmi
|
___________________________ ______|___________________________________
| | | | | | |
Rathina Chakrapani Allirani Santha Anandavalli Panneer
Kasthuribai
Sabhapathy (P) (D3) Sakkubai (D4) Selvam (Died)
(D1) (D2) (Died)
+
Vasundara (D5)
|
|
Rajendran (D6)
5. The plaintiff Chakrapani, the defendants 1 to 4, viz., Rathina
Sabhapathi, Santha Sakkubai, Allirani and Ananthavalli are
siblings. They were born to one, Govindasamy Padayatchi and his
wife, Dhanalakshmi Ammal. Govindasamy Padayatchi died intestate
in 1974. Dhanalakshmi Ammal died in 1981. Apart from the plaintiff
and the defendants 1 to 4, the couples had two other children,
namely Kasthuri Bai and Panneerselvam. Kasthuri Bai expired in
1972. Panneerselvam died in 02.04.1981.
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6. The plaintiff pleaded that Govindasamy Padayatchi had
purchased the properties, described under Schedule ‘A’ to the suit
both in his name, as well as in the name of the first defendant. The
purchases were made from and out of the income derived from the
joint family property. Govindasamy Padayatchi was the karta of the
family. Govindasamy Padayatchi had his fingers in several
businesses. He was running a brick chamber with a capacity of
3,00,000 bricks. Apart from this business, Govindasamy Padayatchi
was also running a business in tobacco, and simultaneously carried
on plantain and agricultural activities. The plaintiff asserted that
Govindasamy Padayatchi performed the wedding of the defendants
(D1 to D4) from and out of the income from the joint family property,
as well as the aforesaid joint family businesses.
7. On the death of Govindasamy Padayatchi, the eldest brother
- 1st defendant / Rathina Sabapathy took over the business of the
joint family. From the income generated from the business, he
purchased the properties in the name of his wife, Vasundra, the 5th
defendant. The plaintiff alleged that, as the properties were
purchased by the 1st defendant in the name of the 5th defendant,
utilizing the joint family income, those properties also have to be
deemed as joint family properties. Hence, he impleaded Vasundra
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and the son of the first defendant, Rajendran as parties to the suit.
They were arrayed as defendants 5 and 6.
8. The 7th defendant, Kanakasabhapathi, was alleged to be a
cultivating tenant under Govindasamy Padayatchi with respect to
the suit item No.22, which was leased out to the 7th defendant by
Govindasamy Padayatchi. Pending the suit, Kanakasabapathi
passed away and the defendants 9 to 13 were brought on record as
his legal representatives.
9. The plaintiff alleged that when his mother was living with
the first defendant, Rathina Sabapathy, he took possession of 15
sovereigns of her jewels with a promise to return the same but did
not keep up the promise. This resulted in a misunderstanding.
Therefore, the first defendant chased his mother out of his house,
and she came to live with the plaintiff at Vallampadugai village. As
the plaintiff was taking care of his mother, Dhanalakshmi Ammal
executed a “WILL” in favour of the plaintiff on 05.09.1981,
bequeathing her properties in his favour.
10. On account of the misunderstanding between the plaintiff
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and the first defendant, he issued a notice demanding his share.
This demand was denied by the 1st defendant, who took a plea that
Govindasamy Padayatchi did not have any joint family property at
all. It was also stated that the first defendant was brought up by his
uncle, Arumugha Thondanar, and that the suit items 2 to 11 were
purchased by the 1st defendant under a registered sale deed on
22.09.1984, from and out of the money advanced to the first
defendant by the said Arumugha Thondanar. As partition was
refused, the plaintiff brought forth a suit seeking declaration of his
3/7th share, and for partition and for separate possession of the
same.
11. Originally, there were only 24 suit items. Thereafter, an
application for amendment was filed to include suit item 25. The
plaintiff claimed that it was his exclusive property.
12. Summons were served on the defendants.
13. Rathinasabapathi filed his written statement, which was
adopted by his wife and son, namely, Vasundra and Rajendran. In
the written statement, the relationship between the parties were
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accepted. However, it was denied that Govindasamy Padayatchi ever
had joint family properties. The first defendant claims that
Govindasamy Padayatchi was never the joint family manager nor did
he own any brick klin. He also denied that after the death of his
father, 1st defendant was the joint family manager. It was pleaded
that the 1st defendant was in possession and enjoyment of the
property in his own right as the absolute owner. The stand taken in
the reply notice was reiterated.
14. The 1st defendant pleaded that he was brought up by his
uncle, Arumugha Thondanar from his childhood. Out of natural love
and affection, that Arumugha Thondanar had for the 1st defendant,
the suit items 2 to 12 were purchased in his name, out of the
monies gifted by Arumugha Thondanar. Since the purchase was
made from and out of the funds given by his uncle, they could not
be treated as joint family properties.
15. Insofar as suit item 1 is concerned, it was pleaded that the
1st defendant had purchased the same out of his own income and he
had been paying kist and having other revenue receipts in his own
name. Insofar as suit items 14 to 18, 23 and 24 are concerned, he
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pleaded that they are the absolute properties of the 5th defendant his
wife and the same is the situation in suit item 19, which was
purchased in the name of his son, the 6th defendant. With respect to
all the properties, he pleaded the possession and enjoyment of the
same, asserting hostile title with patta standing in the names of the
individual defendants. He pleaded that suit item 12 does not belong
to the family as it is owned by a 3rd party and the suit item 20
belongs to Arumugha Thondanar. Suit item 24 belongs to Thangavel
Padayatchi, another uncle of the plaintiff and the first defendant.
Hence, the plaintiff cannot claim a share in the same. Suit item 22
belongs to the seventh defendant. He denied having taken jewels
from his mother and turning her out of his house, and also the
existence of the 'WILL'. He pleaded that the suit is barred by virtue
of Benami Transaction (Prohibition) Act, 1988. On these pleas, he
sought for dismissal of the suit in its entirety.
16. The fourth defendant Ananthavalli filed a written
statement, which was adopted by the third defendant, Allirani. She
admitted the relationship between the parties and to the fact that
Govindasamy Padayatchi had died intestate. She accepted the
nature and character of the suit properties and to the plea of the
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plaintiff that Dhanalakshmi Ammal had executed a “WILL” on
05.09.1981. She stated that the plaintiff is entitled to a decree as
prayed for and that, she is also entitled to a share in the suit
properties. Both the daughters reserved their rights to take
appropriate action in appropriate time to get a share in the property
by way of a decree, after paying court fees.
17. The eighth defendant, a co-operative Bank, pleaded that
the first defendant had borrowed monies for the purchase of a
tractor and its accessories, from it. He had mortgaged the suit items
2 to 11 as security for the said amount on 24.02.1988. The Bank
urged that it is entitled to recover its dues by proceeding against the
mortgaged properties, and that even if the court were to come to a
conclusion that the mortgaged property are the joint family
properties, the said mortgage is also binding on the plaintiff.
Therefore, it sought for dismissal of the suit.
18. The seventh defendant, having died, his legal heir namely,
the ninth defendant had filed a written statement, which was
adopted by defendants 11 and 12, who are the other legal heirs of
the seventh defendant. They pleaded that the suit item 22 did not
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belong either to the plaintiff nor to the first defendant but it was the
property of the seventh defendant. He stated, 7th defendant was
never a tenant & absolute owner in possession. On his death, they
pleaded that the property was inherited by the defendants 9 to 12
and hence, item 22 is not open for partition at all. When the legal
heirs of the seventh defendant were impleaded, the 13th defendant
was a minor. She was represented by a guardian appointed by the
court, namely, Mr.V.K.Balasubramaniam, an Advocate practicing in
Chidambaram. The court guardian filed a written statement on
behalf of the 13th defendant and pleaded that as no specific
allegation has been made against the seventh defendant, the suit is
untenable and therefore, sought the same relief of dismissal.
19. The daughter of Govindasamy Padayatchi, namely, Santha
Sakkubai/the 2nd defendant and the son of Kanagasabapathy, the
10th defendant were served but did not enter appearance and were
set exparte.
20. The trial Judge framed the following issues to be answered
in the suit:
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21. On the side of the plaintiff, he examined himself as PW1
and two other witnesses as PW2 and PW3. He marked Ex.A1 to
Ex.A84. On the side of the defendants, the first defendant examined
himself as DW1 and the ninth defendant examined herself as DW2
to prove their respective cases. On the side of the defendants, Ex.B1
to Ex.B102 were marked by DW1. No documentary evidences were
produced by DW2.
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22. The learned Trial Judge, on the basis of the oral and
documentary evidence, granted a decree for partition of 3/7th share
to the plaintiff and for mesne profit from the date of plaint till the
date of delivery of possession. It held that all the properties except
suit item 25 belongs to the joint family of the plaintiff and the first
defendant. In order to arrive at this conclusion, the court held that
suit items 1 to 11 are not the absolute properties of the first
defendant and the items 12 to 19, 23 and 24 are not the absolute
properties of the defendants 5 and 6. Hence, they are not entitled to
resist partition. Insofar as suit item 25 is concerned, the trial court
held that the properties belonged to the grandmother of the plaintiff,
and not to the joint family of Govindasamy Padayatchi and hence,
incapable of being partitioned. It further held that item 22 does not
belong to the seventh defendant or to the defendants 9 to 13. Insofar
as the mortgage loan that was taken by the first defendant from the
eighth defendant is concerned, the trial court held that the plaintiff
was not answerable to the same and consequently, not binding on
him.
23. Aggrieved by the said judgment and decree, the defendants
1, 5, 6 and the legal heirs of the seventh defendant, namely,
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defendants 9, 11, 12 & 13 preferred a regular appeal before the
Additional District Judge at Cuddalore. The learned Judge, after re-
appreciating the entire evidence, came to the conclusion as follows:
(i) that the suit items 1 to 11, 19 to 22 and 25 are the joint
family properties of the plaintiff and the defendants 1 to 4;
(ii) that the suit items 12 to 18, 23 and 24 are the exclusive
properties of the fifth defendant;
(iii) that the plaintiff is entitled to 6/15th share in the aforesaid
properties; and
(iv) finally, the claim that suit item 22 belongs to the seventh
defendant is untenable and therefore, partly allowed the appeal as
aforesaid.
24. Aggrieved by the said judgment and decree, the present
second appeal is before this court
25. This second appeal was admitted by this court on
19.04.2000 on the following substantial questions of law:
“1. Whether the existence of sufficient productive
joint family nucleus coupled with proof of joint enjoyment
in respect of the properties purchased in the name of a
female joint family member did not afford proof of
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impressing the character of the property as belonging to
the joint family and shift the onus of proof on the female
member to establish that it was her own property?
2. Whether the purchase of item 25 by the plaintiff,
a junior member of joint family in exchange of the
separate property obtained without detriment to the joint
family property was not a separate property of the
plaintiff?
3. Whether the alternation of the share to which the
plaintiff was entitled to by the Additional District Court
without reference to the acquisition of interest of a
deceased coparcener (plaintiff's brother) by the mother
as an exclusive sharer and the subsequent bequest by
her to the plaintiff, was not erroneous and opposed to
law?”
26. I heard Mr.Anand for Mr.Elayaraja Kandhasamy for the
appellants, and Mr.Srinath Sridevanl Senior Counsel for Mr.Girish
for respondents 1, 3 to 7, Mr.Silambarasan for respondents 9 and
10, Mr.G.Srivenkatesh for the respondents 11 to 14 and
Mrs.Avanthika Vasu for the respondents 15 to 19.
27. I have gone through the records and I have applied my
mind to the facts of the case.
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28. Mr.Anand brought to my attention an application filed by
him in CMP.No.1692 of 2008 invoking the provisions of Order XLI
Rule 27 of the Code of Civil Procedure. According to him, the suit
item 25 belongs to the appellant absolutely. He contended the same
because item 25 is adjacent to his mother’s house in Vallampadugai,
and that was delivered to him by the Court in 1965. He pleaded that
the lower appellate court had erroneously included item 25 in the
list of items to be partitioned. He urged that pending the second
appeal, a suit had been filed in O.S.No.358 of 2000 and in that suit,
the first defendant as DW4 had admitted that this suit item
belonged to him. He stated that the documents filed along with the
petition had been kept in an attic in his house and he was able to
retrieve the same only in July 2008, while cleaning it. He urged that
if these documents are admitted as additional evidence, then it will
point out to his title to the property. He pleaded that the documents
to be received.
29. Per contra, Mr.Srinath Sridevan urged that none of these
documents can be received in second appeal for the first time. He
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pointed out that the primary documents are dated 20.12.1965 and
14.04.1969, while the remaining documents 3 to 7, 9 and 10 are
revenue receipts, which will not assist this court. Insofar as the
evidence of the first defendant as DW4 in O.S.No.358 of 2000 on the
file of the Principal District Munsif Court, Chidambaram is
concerned, he contended that the same would not be helpful in this
suit.
30. A casual glance at Order XLI Rule 27 makes it clear that a
party to the proceedings can produce additional document even at
the appellate stage. The provision itself incorporates certain
limitations on evidence that can be brought on record. It is
permissible only if a party convincingly demonstrates before the
court that he could not produce the said documents at the stage of
trial, despite due diligence. It must also be stated that a party, while
producing a document, should convince the court that the
document now produced was not within his knowledge and hence,
should be received by the appellate forum. The provision gives a
guidance to the court as to when a document can be received.
Additional evidence cannot be produced by a party whenever he so
pleases. The averment that the documents were in the attic and
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from 1989 to 2008, the plaintiff did not clean his attic at all and
came to know about the documents only in 2008, is too fanciful
story to be accepted by this court.
31. Furthermore, as rightly contended by Mr.Srinath Sridevan,
most of the documents sought to be produced are revenue receipts.
It is trite that revenue records do not confer or deny title to a
property. The plaintiff could have produced these documents at least
before the final court of facts, namely, the lower appellate court.
Even then, he did not produce them. As the requirements of Order
XLI Rule 27 was not complied with, this court has no other option
than to dismiss the application. I am strengthened in this view by
the judgments in State of Karnataka v. K.C. Subramanya,
(2014) 1 LW 103 (SC) and Union of India v. Ibrahim Uddin,
(2012) 4 LW 359 (SC).
32. Now turning to the appeal, Mr.Anand urged that the lower
appellate court had not appreciated the evidences in a proper
perspective. He stated that the plaintiff had made sufficient
pleadings to the effect that, the properties purchased in the name of
the fifth defendant were, from and out of the joint family property,
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not with the intention to benefit the fifth defendant alone, but for the
enjoyment of all the members of the joint family. Expanding on this
point, he stated that when the proof of surplus income had been
adduced by him, the onus shifts to the fifth defendant to establish
that she had sufficient and independent income, and was in
possession of the property, without reference to the joint family.
33. Mr.Anand urged that, having held that there are joint
family properties, the lower appellate court should have also held
like the trial court, that the properties purchased in the name of the
first defendant, with respect to items 12 to 18, 23 and 24, are also
joint family properties. He pointed out the lower appellate court
erred in holding that item 25 was the joint family property, without
any proof. He stated that as there has been perverse findings by the
lower appellate court, this appeal deserves to be allowed and the
judgment and decree of the trial court has to be restored.
34. Mr.Srinath Sridevan urged that the mere existence of joint
family properties, does not mean that the properties purchased in
the name of the female member also carries the same presumption,
as in the case of the properties standing in the name of a male
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member. He pointed out that suit item No.25 was purchased under
Ex.B1 on 02.09.1959. On that date, the plaintiff had not produced
any proof to show that he had any independent income and that, the
plaintiff was a minor on that date. Hence, he torpedoes the
argument of Mr.Anand, stating that a minor cannot claim to have
purchased a property of more than 6 acres in 1959.
35. Mr.Srinath Sridevan invited my attention to his cross
objection to urge that the suit item No.1 is the personal acquisition
of the first defendant and hence, the same is incapable of partition.
He pleaded that because the brick business, tobacco business and
the plantain business are separate businesses of Govindasamy
Padayatchi, which were created independent of the income arising
out of the ancestral property.it cannot be treated as Joint Family
income. He urged that all the items, excepting item 22, are the self-
acquisitions of the defendants, and the lower appellate court ought
not to have decreed the suit as it has done. Consequently, he seeks
for modification.
36. I have carefully considered the submissions made on either
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side and have gone through the records. I have applied my mind to
the facts of the case and the substantial questions of law that have
been framed by this Court.
37. The undisputed facts are the plaintiff and the defendants 1
to 4 are siblings. The fifth defendant is the wife of the first
defendant. The sixth defendant is the son born to the defendants 1
and 5. The seventh defendant claims to be the owner of the suit item
22. The eighth defendant is the mortgagee of the suit items 2 to 11
at the hands of the first defendant.
38. If I were to trace the existence of the joint family, it is
evidenced under Ex.A2. This is a partition deed dated 29.05.1935,
that had been entered into between the father of Govindasamy
Padayatchi and himself. Under this document, Govindasamy
Padayatchi's father was allotted 'A' schedule mentioned property to
that document. This comprises of 10 cents of land in R.S.No.170/14
of Vallampadugai Village. Subsequently, Ex.A1 release deed was
entered into between the members of the family. This release deed is
dated 21.01.1943. Under this document, Thangavel Padayatchi, the
other brother of Govindasamy Padayatchi, and the sons of Ramu
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Padayatchi, the paternal uncle of Govindasamy Padayatchi, had
released their rights in the house property. Similarly, Ex.A8 shows
that as many as six items of properties in Perumbattu Village
belonged to Govindasamy Padayatchi. The trial court, as well as the
lower appellate court, on the basis of these documents, have come to
a conclusion that Govindasamy Padayatchi and his family,
consisting of himself and his children, had sufficient properties for
the purpose of generating income.
39. The other documents point out that Govindasamy
Padayatchi was not a content being a farmer, but also indulged in
other businesses. Ex.A25 and Ex.A26 confirms that Govindasamy
Padayatchi was having chamber brick business. Similarly, Ex.A27
shows that he also had business interest in tobacco. The sales tax
document of the year 1953 in Ex.A28 and Ex.A31 point out that
Govindasamy Padayatchi had been generating income above
Rs.750/- from the sale of bricks. The sales tax documents read with
Ex.A40, namely, the contract entered into between Govindasamy
Padayatchi and Neyveli Lignite Corporation (hereinafter referred to
as 'NLC') points out that his business with NLC generated a sum of
Rs.44,000/-. The supply was to the tune of 10,00,000 bricks.
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40. Apart from these documents, from the various promissory
notes marked under Ex.A14 to Ex.A18 and Ex.A22 to Ex.A24, it is
clear that Govindasamy Padayatchi had borrowed several amounts
on the foot of these promissory notes for his family as well as the
brick klin business expenses. In addition to the supply 10,00,000
bricks to NLC, Ex.A45 to Ex.A47 would show that Govindasamy
Padayatchi was supplying bricks for the construction of a
Polytechnic at Puthur. A cumulative effect of these documents
points out that Govindsamy Padayatchi not only had joint family
nucleus but had also been indulging himself in several other
business activities, which was generating income for himself and his
family.
41. Now let us turn to the argument of Mr.Srinath Sridevan
that the suit items 2 to 11 were purchased by the first defendant
from and out of the amounts given by Arumuga Thondanar, his
paternal uncle. It is not in dispute that the first defendant was born
in and around 1941. The suit items 2 to 11 have been purchased
under two documents, namely, Ex.A83 and Ex.A84. The vendor of
these documents was one, Subramaniya Thambiran and the
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purchaser was the first defendant. On the date of purchase, the first
defendant was a mere child aged three years old. Therefore, by no
stretch of imagination could it be pleaded that the first defendant
had purchased the property from and out of his income. Therefore,
Mr.Srinath Sridevan's client had taken a stand that the property
was purchased by the funds given by Arumuga Thondanar, his
uncle. In order to substantiate this plea, no person had been
examined by the first defendant. The first defendant being aged only
three years on the date of purchase, he is not competent to speak
about source of the monies for the purchase. Apart from this, there
is no evidence to show that the first defendant was living with
Arumuga Thondanar.
42. Apart from Ex.A83 and Ex.A84, I will turn my attention to
Ex.A80. This is a receipt issued by the trustee of the Sivapuri
Madam, Chidambaram (the father of Subramaniya Thambiran) to
Govindasamy Padayatchi, dated 17.09.1944. The sale deeds under
Ex.A83 and Ex.A84 are dated 29.08.1944 i.e., to say within a month
of transaction, the receipts had been issued.
43. I am of the view that the trial court as well as the lower
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appellate court have correctly appreciated all these documents and
have come to a conclusion that the suit items 2 to 11 had been
purchased in the name of the first defendant by the father,
Govindasamy Padayatchi. It is not unusual in this country, for a
father to purchase properties in the name of his son. The Padayatchi
family in this case is not an exception to the same.
44. When the plaintiff has produced substantial evidence to
show the agricultural income and the business income at the hands
of the Govindasamy Padayatchi to the tune of Rs.44,000/- and
above, which is a substantial value, then the burden shifts to the
first defendant to prove with respect to the allegations taken by him,
that the suit items in question were not purchased out of the income
generated by the joint family property. I have already pointed out,
apart from the ipse dixit of DW1, no other evidence has been put
forth by the first defendant to substantiate the plea of gift by
Arumugha Thondanar. Therefore, I am of the view that the factual
conclusions have been arrived after perusing the evidence in a
correct perspective and do not require interference.
45. Insofar as item 21 is concerned, it is not in dispute that it
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was purchased by the father of Govindasamy Padayatchi. The
defendants took an interesting plea that it was in possession of
Thangavel Padayatchi under an oral gift. By the time the property
could have been so treated, the Transfer of Property Act had come
into force. Under section 123 of the Transfer of Property Act, there
cannot be an oral transfer of a property by a Hindu. A gift deed
requires a registered document.
46. With respect to item No.1, the same had been purchased
under Ex.B12 to Ex.B15. The period of purchase is between 1980
and 1981 across four sale deeds. It is not disputed that
Govindasamy Padayatchi died in the year 1974. After his death, the
first defendant succeeded him as the Karta of the family. The
evidence on record shows that the dispute between the parties arose
sometime in 1986 or thereabouts. Therefore, the purchase of suit
item 1, when Rathina Sabapathy was the Karta of the family, should
be treated only as the property belonging to the joint family, and not
for the purpose of exclusive enjoyment by the first defendant.
47. Insofar as item 20 is concerned, the property had been
purchased under Ex.A71. The purchaser being Govindasamy
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Padayatchi. Ex.A3 is a sale deed for suit item 21. The purchaser of
this property is the grandfather of the plaintiff and the father of
Govindasamy Padayatchi. Ex.A33 also points out that Govindasamy
Padayatchi was showing proof of sufficient income to the income tax
department, with regards to a notice calling upon him to comply
with the requirements of Income Tax Act. The other essential
documents which point out to the financial status of Govindasamy
Padayatchi are Ex.A19, Ex.A72, Ex.A73 and Ex.A74.
48. Ex.A12 and Ex.A13 are registered lease documents, which
show that Govindasamy Padayatchi was also securing income by
leasing out properties. He was also involved in a proceeding in
O.P.No.22 of 1948 as is clear from Ex.A82 for the redemption of
mortgaged properties. Ex.A48 shows that Govindasamy Padayatchi
was doing plantain business. Ex.A22 to Ex.A24 and Ex.A45 to
Ex.A47 are the receipts for sale of bricks to the business "Ashoka
brick Works". The purchase of raw materials for making bricks is
evidenced under Ex.A49. Hence, I do not find any reason to interfere
with the findings of the fact recorded by the trial court as well as the
lower appellate court, as regards the existence of a joint family
properties, and the substantial income being generated from such
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properties and businesses.
49. It is here, I will take note of the submissions of Mr.Srinath
Sridevan, that the first defendant was doing business. It is claimed,
from and out of the income generated from that business, he
purchased suit item No.1. This argument though sounds very
plausible, I am not in a postition to accept the same, because the
business carried out by the first defendant is under the name and
style of "Ashoka Brick Works", which was the business carried on by
Govindasamy Padayatchi. From the records, it is evidenced that the
first defendant carried on the business, which had been carried on
by Govindasamy Padayatchi. He assumed the business by virtue of
the death of his father. He carried on the business that had been
established by Govindasamy Padayatchi for the family. For the mere
fact that, Govindasamy Padayatchi had passed away, does not mean
that Ashoka Brick Works became a private enterprise, exclusively
belonging to the first defendant. Hence, the plea of Mr.Srinath
Sridevan deserves rejection and accordingly, it is rejected.
50. Before I turn my attention to the suit item 12 to 19, I have
to consider the plea of Mr.Anand with respect to suit item 25.
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Mr.Anand pleads that under Ex.A70, a claim petition had been filed
by the plaintiff seeking to establish his title over the property. A
perusal of Ex.A70 shows that it is only a claim petition that had
been filed by him, but no orders had been passed in that
proceedings holding that the property exclusively belonged to the
plaintiff. Ex.A53 to Ex.A68 are house tax receipts. I have already
pointed out that mere mutation of revenue reocrds or payment of
revenue receipts will not confer title on a person. On the date of
purchase of suit item 25, the plaintiff was a minor. Hence, the
principle that I applied for suit item 2 to 11 would also be applicable
to suit item 25.
51. Insofar as suit item 22 is concerned, it need not detain us
for long. The property had been leased out to the seventh defendant
by Govindasamy Padayatchi, as is clear from Ex.A13. This is a
document dated 07.06.1954. Though the plea had been taken by the
nineth defendant that the property is the exclusive property of
Kanakasabapathy, no evidence to that effect has been let in before
this court. The defendants 9 to 13, who represent the estate of
Kanakasabapathy, were the appellants in A.S.No.109 of 1998. A
decree for partition was passed against the said defendant. The said
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defendant had not preferred an appeal against the decree. In the
light of Ex.A13 and for the reasons given by the lower appellate court
in paragraph 19 of the said judgment, I am of the view that suit item
22 is also available for partition.
52. Finally, I turn my attention to suit item 19. Suit item 19
was purchased in quick succession to suit item No.1. The purchase
was on 20.03.1982. The purchaser is the sixth defendant,
Rajendiran, the son of the defendants 1 and 5. He is also a part of
the joint family consisting of Govindasamy Padayatchi and his sons.
Hence, this property too, should be available for partition.
53. Though this court need not undertake the exercise of going
through the records for satisfying itself on the source, since it was
vehemently contended across the bar that suit item 1 and 25 are the
exclusive properties of the first defendant and the plaintiff, this
court undertook the exercise of verifying the doucments, in order to
come to a conclusion. I am of the view that the exercise conducted
by the trial court, as well as the lower appellate court vis-a-vis the
suit item 1 to 11, 19 and 25 are perfectly justifiable conclusions and
do not require interference at the hands of this court.
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54. Insofar as the suit items 12 to 18 and 23 and 24 are
concerned, they all stand in the name of the fifth defendant. It is the
plea of the plaintiff that the presumption which is drawn in favour of
existence of the joint family, with respect to the property standing in
the name of male members, should be extended to female members
also. I am not in a position to accept the submission of the learned
counsel. This is because of the position of law settled for more than
150 years.
55. The earliest of the judgment that I was able to come across
is the judgment in Sreemutty Chundermonee Dossee v. Joykissen
Sircar, 1 WR 107. The Calcutta High Court held as follows:
“There is not, so far as we are aware, any case in
which it has been held, that, where property stands in
the name of a female member of a Hindu family, it is to
be presumed that it is the common property of the
family, and that it is incumbent on a person who
asserts that it is the property of the lady in whose name
it stands to prove it. Nor is there any ground on which
such a presumption can be founded.”
56. The view taken by the Calcutta High Court had been
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approved by the Division bench of this Court consisting of Sir
Charles Turner, C.J., and Mr. Justice Muthusami Ayyar in Narayan
v. Krishnan and another, (1884) ILR 8 Mad 215. Turner, C.J.,
while approving the aforesaid judgment, held as follows:
"Where a family lives in co-parcenary, the
presumption which exists in the case of male members
arises from the circumstance that they are co-
parceners. On the other hand, the ladies are not in an
undivided family co-parceners; whatever property they
acquire by inheritance or gift is their separate estate,
and although it is not unusual for property to be
transferred to the name of a female member to protect it
from the creditors of the male members, or to place it
beyond the risk of extravagance on the part of the male
members, such dealings are exceptional and can afford
no ground for a general presumption."
57. The view that had been taken by Turner, C.J. was accepted
by the Division Bench of Calcutta High court in Protap Chandra
Gope and Others vs. Sarat Chandra Gangopadhya, AIR 1921
Cal 101 : 62 Indian Cases 648. When the very same position was
sought to be reagitated in Gorantala Parvatamma vs.
Veeragandam Subbayya, (1931) 34 LW 704 : AIR 1932 Mad
144, a Division Bench consisting of Sir V.Ramesam, Kt. and
Cornish, JJ. approved the view that was taken by the Calcutta High
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Court in Protap Chandra Gope's case, and held that in a suit by a
member of joint family for partition of family property, the burden is
on the plaintiff to prove that a land standing in the name of a female
member of the family was really purchased as a benami in her name
for some ulterior motive, such as depriving him of his rights. They
further pointed out that if this burden is not discharged, it is
unnecessary to examine the case further.
58. Applying these principles to the facts of the present case,
all I have to do is refer to what the plaintiff has pleaded in paragraph
2 of the plaint is as follows:
"... The 1st defendant also realized good income
from the joint family properties and from the Chamber
(brick) business and with those amount he began to
purchase properties in the name of his wife and sons.
Items in 'A' schedule are the properties purchased in
the name of the wife and sons of the 1st defendant."
59. When there is a lack of plea as pointed out by the Division
Bench, I necessarily have to apply the view, which had been
consistently held from 1872 onwards, and hold that the suit items
12 to 18, 23 and 24, which stand in the name of the fifth defendant
are her exclusive properties and are not open for partition.
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60. At this juncture, I have to take note of the Parliamentary
amendment to Section 6 of the Hindu Succession Act, 1956. This
provision was the subject matter of interpretation in Vineeta
Sharma v. Rakesh Sharma, (2020) 9 SCC 1. The Supreme Court
held that if a daughter is alive on the date of commencement of
Amendment Act of 2005 i.e.,on 09.09.2005, she becomes a
coparcener from the date of amendment, irrespective of whether she
was born before or after the amendment. Since her right as a
coparcener is by birth, the court also held that it is not necessary for
the father to be alive on the date of coming into force of the
amendment. I have found that there existed a coparcenery with
Govindasamy Padayatchi as the Karta, and after his death, the first
defendant became the Karta. If that be the position, the defendants
2 to 4 will be entitled for the same share as that of the plaintiff and
the first defendant.
61. When the appeal was preferred before the first appellate
court, the defendants 2 to 4 were not made parties in the appeal.
However, while this court is dealing with the suit for partition, it
necessarily has to take into consideration the rights of the parties as
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they stood in the suit. If the daughters had not been arrayed as
parties, then it would have been an issue. Yet a perusal shows that
the daughters were, in fact, parties to the suit, when it was
presented. The only bar in granting the relief to them would arise, if
Section 6(5) of Hindu Succession Act is applicable. Admittedly, there
has been no deed of partition registered between the family
members, nor has the final decree been passed in the suit.
62. In view of the findings rendered hereinabove, and applying
the ratio laid down in Vineeta Sharma v. Rakesh Sharma, cited
Supra, it stands affirmed that all coparceners, irrespective of gender,
are entitled to equal rights and share by birth in the joint family
properties. In the present case, Suit Items 1 to 11, 19 to 22 and 25
having been declared as joint family properties, the same are now
open to partition. Upon the death of Govindasamy Padayatchi in
1974, there existed seven sharers, namely, his six surviving children
- Chakrapani, Rathinasabapathy, Santha Sakkubai, Allirani,
Anandhavalli and Panneerselvam, together with his widow,
Dhanalakshmi Ammal. One daughter, Kasthuri Bai, having
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predeceased the father and being unmarried and issueless,
automatically stands excluded.
63. Accordingly, a division results in each surviving heir
receiving 1/7th share. Thereafter, the 1/7th share belonging to
Govindasamy Padayatchi devolves equally among the seven heirs,
namely his six surviving children and his widow, resulting in each
surviving child being entitled to an additional 1/49th share.In effect,
each of the five surviving children is entitled to a final share of 1/7 +
1/49 = 8/49 in the items declared as joint family properties.
64. Panneerselvam, having been alive at the time of the father's
death, was also entitled to one such share.Since Panneerselvam died
unmarried and issueless on 02.04.1981, during the lifetime of his
mother, his 1/7th share, and additionally the 1/49th devolved from
the father's notional share, shall devolve upon Dhanalakshmi
Ammal. This is in addition to the share she receives under the
Hindu Succession Act, 1956.
65. Insofar as the entitlement of Dhanalakshmi Ammal’s share
the parties are at liberty to work out such rights, in a separate suit
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regarding her share.
66. With respect to the mortgage executed by the first
defendant in favour of the eighth defendant–Bank in O.S. No. 59 of
1989, this Court concurs with the finding of the lower appellate
Court. The liability shall bind only the allotment made to the first
defendant corresponding to his entitlement of 8/49 share, and shall
not, under any circumstance, burden or operate against the
legitimate shares of the remaining coparceners.
67. While effecting the physical division of the aforesaid suit
items, the property situated in Survey No. R.S. 94/3 (Suit Item No.
25), extent Ac. 6.70 cents in Vallampadugai Village, which contains
a brick-built house and the tomb of late Govindasamy Padayatchi,
and endeavour shall be made to allot the same to the plaintiff’s
share during the final decree proceedings. The plaintiff has
specifically pleaded the existence of the said structures, and the final
decree Court endeavour that the house and tomb are alloted to the
plaintiff, as part of his 8/49 share, and the remaining properties
shall be divided in accordance with the share proportions
determined hereinabove. The Second Appeal is partly allowed as
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indicated above. Consequently, the Cross Objection stands
dismissed and the connected miscellaneous petitions are closed.
Considering the close relationship between the parties, they shall
bear their respective costs.
26.11.2025
nl
Index : Yes/No
Speaking order/Non-speaking order
Neutral Citation : Yes/No
To
1.The Sub Court, Chidambaram
2.The Additional District Judge cum CJM Court, Cuddalore,
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V.LAKSHMINARAYANAN, J.
nl
26.11.2025
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