Madras High Court
Amudham (Died) vs Sakundhala (Died) on 6 October, 2025
2025:MHC:2312
A.S.NO.418 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 03 / 07 / 2025
JUDGMENT PRONOUNCED ON : 06 / 10 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.418 OF 2019
1. Amudham (Died) ... Appellant No.1 /
Plaintiff
2. Sudhakar
S/o. Ramalingam
3. Sutha
D/o. Ramalingam ... Appellant Nos.2 & 3
Note: Sole appellant - Amudham
passed away. Appellant Nos.2 and 3
were brought on record as legal
representatives of the deceased sole
appellant - Amudham vide Order of
this Court dated July 5, 2024 made in
CMP Nos.8570, 8572 and 8573 of
2023 in A.S.No.418 of 2019
Versus
Sakundhala (Died) ... Defendant No.1
1.Kavitha
2.Suganthi
3.Elaiyaraja
4.Govindhan ... Respondent Nos.1 to 4 /
Defendant Nos.2 to 5
Page No.1 of 44
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PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
1 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated March 7, 2019 passed in O.S.No.13 of 2015 by the III
Additional District Court, Kallakurichi.
For Appellants : Mr.S.Parthasarathy
Senior Counsel
for M/s.P.Dinesh Kumar
For Respondents 1-3 : Mr.Raja Rajan
For Respondent – 4 : Served – No appearance
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated March 7, 2019
passed in O.S.No.13 of 2015 by the 'III Additional District Court,
Kallakurichi' ['Trial Court' for brevity], the plaintiff therein has filed this
Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the Code of
Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. The Suit Properties are all ancestral and joint family properties of
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Nangoor Udaiyar. The first defendant is his wife. In their wedlock, they
had one son – one Tamilarasan and two daughters – the plaintiff and one
Vimala. The second defendant is wife of said Tamilarasan. The third
defendant and one late Sujatha are daughters of Tamilarasan.
3.1. During his lifetime, Nangoor Udaiyar was managing the Suit
Properties as manager of the joint family. After the death of Nangoor
Udaiyar in 1976, his son - Tamilarasan managed the Suit Properties as
joint family Manager without effecting any partition.
3.2. The plaintiff got married in 1978. The other daughter - Vimala
passed away intestate as a bachelorette in 1991 leaving behind her 1/3
interest in the Suit Properties. Tamilarasan passed away intestate on July
12, 2005 leaving behind defendants 1 to 3 as his legal heirs. First
defendant executed a Gift Settlement Deed dated July 18, 2011 in favour
of the plaintiff in respect of her entitlement in the Suit Properties. Plaintiff
on September 17, 2012 executed a Sale Deed in favour of fifth defendant
in respect of a portion of her share. Aggrieved by the same, the defendants
2 and 3, with an intention to encumber the Suit Properties, have fabricated
a Sale Deed dated November 9, 2012 without consideration in respect of a
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major portion of Suit Properties. Hence, the plaintiff filed the Suit for
partition of her ½ share in the Suit Properties.
DEFENDANTS' CASE
4. Though summons were duly served, defendants 1 and 5 didn't
choose to appear and contest the case. Hence, they were called absent and
set ex-parte by the Trial Court.
5. The second and fourth defendant filed a written statement which
was adopted by the third defendant. The relationship between the parties
as stated in the plaint is admitted. Sum and substance of the written
statement is that Suit Item Nos.12 to 14 and 31 are self-acquired properties
of Tamilarasan. Rest of the Suit Properties along with some other
properties not included in this Suit are all Hindu joint family properties.
5.1. Nangoor Udaiyar passed away intestate in 1976. After his
demise, Tamilarasan took over the management of the joint family and its
properties. Tamilarasan conducted the marriage of the plaintiff with 40
Sovereign of gold besides the usual Seers in 1978.
5.2. The second defendant married Tamilarasan in July 1981 and an
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oral family arrangement was effected in the same year among the legal
heirs of Nangoor Udaiyar, as per which, the entire Suit Properties along
with some more properties fell into the hands of Tamilarasan. Based on the
oral family arrangement, Patta No.171 was issued in the name of
Tamilarasan for the Suit Properties and Tamilarasan had been in exclusive
possession and enjoyment of the Suit Properties along with some more
properties. Vimala passed away intestate and unmarried in 1991.
Tamilarasan sold some of the joint family properties, not included in the
Suit Properties, to third parties between 1992 and 1995 and in fact, the
plaintiff’s brother-in-law - Jagadeesan had purchased a portion of the joint
family properties from Tamilarasan. After his demise, second and third
defendants enjoyed the Suit Properties without any interruption for about
32 years ousting the plaintiff from the Suit Properties. Hence, the Suit
filed by the plaintiff is barred by limitation. On April 15, 2005 Tamilarasan
executed an unregistered Will in favour of the second and third defendants
and late Sujatha in respect of Suit Properties. Sujatha passed away
intestate in 2009 as a bachelorette. The second and third defendants are
now enjoying the Suit Properties.
5.3. The alleged Gift Settlement Deed dated July 18, 2011 in favour
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of plaintiff by first defendant is not genuine and void as the first defendant
had no right to do so. The plaintiff has no right to object the Sale Deed
executed by the defendants 2 and 3 in favour of the fourth defendant.
Further, the plaintiff has no right to execute Sale Deed in respect of any
portion of the Suit Properties in favour of fifth defendant. The plaintiff
does not have any right in the Suit Properties. Stating so, the defendants
sought to dismiss the Suit.
TRIAL COURT
6. Based on the above pleadings, the Trial Court framed the
following issues:
“1. Whether this suit is maintainable?
2. Whether any oral family arrangement was
effected in the year 1981?
3. Whether the plaintiff is entitled for ½ share in
the suit properties?
4. Whether the plaintiff is entitled for the reliefs as
prayed for?
5. To what other relief the plaintiff is entitled?”
7. Later, the following additional issue was framed:
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“Whether the Settlement Deed executed by the
first defendant - deceased Sakunthala on July
18, 2011 in favour of the plaintiff regarding her
share over Suit Schedule Property confers any
right to the plaintiff? ”
8. At trial, plaintiff was examined as P.W.1 and one Jagadeesan was
examined as P.W.2 and Ex-A.1 to Ex-A.13 were marked on the side of the
plaintiff. On the side of the defendants, second defendant was examined as
D.W.1, one Mani and one Jayakumar were examined as D.W.2 and D.W.3
respectively and Ex-B.1 to Ex-B.25 were marked.
9. During the pendency of the Original Suit, the first defendant
passed away on July 21, 2016 and her legal heirs were already on record
as plaintiff and the third defendant.
10. After full-fledged trial, the Trial Court concluded that oral
family arrangement was effected in 1981, wherein and whereby the
plaintiff and first defendant had relinquished their right in the Suit
Properties and the other joint family properties. The Gift Settlement Deed
allegedly executed by the first defendant on July 18, 2011 in favour of the
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plaintiff does not confer any right to the plaintiff. The Suit is not
maintainable as framed. The plaintiff is not entitled to any relief.
Accordingly, the Trial Court dismissed the Suit.
APPEAL SUIT
11. Feeling aggrieved, the plaintiff has preferred this First Appeal
under Section 96 read with Order XLI Rule 1 of the CPC.
12. During the pendency of this Appeal Suit, the sole appellant /
plaintiff – Amudham passed away on July 21, 2022 leaving behind his son
- Sudhakar and daughter - Sutha as her legal representatives, and they
were brought on record as Appellant Nos.2 and 3 vide Order of this Court
dated July 5, 2024 passed in CMP Nos.8570, 8572 and 8573 of 2023 in
A.S.No.418 of 2019.
ARGUMENTS:
13. Both sides argued elaborately. Heard both sides in full.
14. The arguments of Mr.S.Parthasarathy, learned Senior Counsel
appearing for Appellant Nos.2 and 3 can be summarised as follows:
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14.1. Though Ex-B.5 to Ex-B.7 – Sale Deeds in respect of Suit Item
Nos.12, 20 and 31 stand in the name of Tamilarasan, the aforesaid
properties were purchased in and out of surplus income from more than 10
Acres of high yielding joint family agricultural properties. Further, the
second defendant has not established that her husband – Tamilarasan had
substantial separate income other than the income derived from the joint
family for the purchase of properties covered under Ex-B.5 to Ex-B.7 and
Ex-A.10. Further, Ex-B.5 was executed in 1970 and at that time,
Tamilarasan was a minor. Ex-A.10, Ex-B.6 and Ex-B.7 were executed in
the years 1981, 1985 and 1990 respectively, and there exist no evidence to
show that he had sufficient independent income to purchase the properties
covered thereunder. Ex-B.21 – Letter dated December 2, 1996 from the
Provident Fund Office addressed to Tamilarasan stating that he has been
sanctioned a sum of Rs.14,545/-, and Ex-B.22 – Letter dated June 25,
1996 from A.R. Damodara Mudaliar and Company stating that his security
deposit of Rs.16,335/- is refunded to him. These are all years after Ex-
A.10, Ex-B.5 to Ex-B.7 and hence not relevant. Hence, the properties
covered under Ex-A.1, Ex-B.5 to Ex-B.7 are all ancestral and joint family
properties. The defendants 2 to 4 pleaded oral family arrangement. The
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burden to prove the same lies upon them. But the defendants failed to
prove the plea of oral family arrangement.
14.2. D.W.1 / second defendant in her chief examination deposed that
oral family arrangement took place in 1981, while in her cross-
examination on February 27, 2018, she deposed that when her marriage
with Tamilarasan was being discussed, as her family was hesitant that
were loans payable by Tamilarasan, at that time, first defendant, plaintiff
and late Vimala assured that they would not claim any share in joint family
properties. During her further cross-examination on April 9, 2018, she
deposed that in 1977, the plaintiff and late Vimala orally declared that they
want no share in the joint family properties and the same came to her
knowledge from her husband. Despite these contradictions, no
independent witness was examined to prove the alleged family
arrangement. The defendants have failed to prove the same.
14.3. Further, any relinquishment in immovable property above the
value of Rs.100/- must be registered and in support of the contention, he
would rely on the Judgment of a learned Single Judge of this Court in
Prema Suryanarayanan -vs- Venkataraman, reported in 2018 (2) CTC
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750 and the Judgment of a learned Single Judge of the Hon’ble High
Court of Kerala in Kannan P V -vs- Meenakshi M, reported in 2013 (2)
ILR (Kerala) 764.
14.4. As regards the alleged Ex-B.20 – Will dated April 17, 2005, it
would have come into effect on July 12, 2005 upon Tamilarasan’s demise.
That disposition, even if it’s true and genuine, would not bind or affect the
plaintiff’s right in view of the proviso to sub-section (1) of Section 6 of
the Hindu Succession Act, 1956.
14.5. The plaintiff’s marriage was in 1978 but in view of the Hindu
Succession (Amendment) Act, 2005 (Act No.39 of 2005), the daughter -
plaintiff is a co-parcener entitled to equal share to that of the son –
Tamilarasan, and hence, dehors the validity of the alleged Tamilarasan’s
Will (Ex-B.20), the plaintiff is entitled 1/3 + 1/9 share = 4/9 share. The
first defendant would be entitled to 1/9 share, and second and third
defendants would be jointly entitled to 4/9 share. As first defendant passed
away pending Suit leaving behind 1/9 share, the same devolve under
Section 15 (1) (a) of the Hindu Succession Act, 1956 upon the plaintiff
and third defendant. In short, the plaintiff is entitled to ½ share in the Suit
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Properties and the defendants 2 and 3 would be jointly entitled to ½ share.
14.6. The defendants 2 and 3 had no right to execute Sale Deed in
respect of more than ½ share in the Suit Properties and hence, Ex-A.3 –
Sale Deed is not binding on the plaintiff and would not affect her right in
any manner.
14.7. He would rely on the Judgment of this Court in Kandasamy -vs-
Thangavel, reported in MANU/TN/3583/2024 (Division Bench) to
contend that the relief of partition sought for is well within limitation.
14.8. The Trial Court failed to consider the said aspects and dismissed
the Suit. Accordingly, he would pray to allow the Appeal Suit, set aside the
Judgment and Decree of the Trial Court, and grant the relief of partition.
15. Per contra, Mr.Raja Rajan, learned Counsel for the Respondent
Nos.1 to 3 / Defendant Nos.2 to 4 would argue that Suit Item Nos.12 to 14,
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20 and 31 are all separate and self-acquired properties of Tamilarasan vide
Ex-A.10, Ex-B.5 to Ex-B.7 – Sale Deeds. There are sufficient evidence
available on record to show that Tamilarasan was working in a private
company and earned sizeable income during the purchase of Ex-A.10, Ex-
B.6 and Ex-B.7. Tamilarasan passed away leaving behind Ex-B.20 – Will
and the same has been proved as per law by examining the attesting
witnesses. Hence, qua Suit Item Nos.12 to 14, 20 and 31, the plaintiff has
no right to seek partition. Nangoor Udaiyar and Tamilarasan were co-
parceners having equal interest in the joint family properties. When
Nangoor Udaiyar passed away in 1976, succession opened in respect of
his ½ interest in the joint family properties and the plaintiff, Vimala, first
defendant and Tamilarasan became entitled to 1/8 share each. As
Tamilarasan took care of the plaintiff, Vimala and the first defendant,
including the marriage of the plaintiff, they voluntarily relinquished their
right in respect of joint family properties, in the oral family arrangement
held in 1981. Pursuant to the family arrangements, revenue records in Ex-
B.8 to Ex-B.13 were mutated in the name of Tamilarasan. Similarly
electricity service connection were also mutated vide Ex-B.3 and Ex-B.4
in the name of Tamilarasan. Further, pursuant to oral family arrangement,
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Tamilarasan executed Ex-B.2, Ex-B.15 to Ex-B.17 – Sale Deeds in respect
of some other joint family properties not included in Suit Properties in
favour of third parties. Similarly he has been paying Kist in respect of
joint family properties vide Exs-B.18 and B.19. Hence, Tamilarasan was
enjoying the Suit Properties exclusively without any interference from the
plaintiff or first defendant or late Vimala. The plaintiff and first defendant
have no right in the Suit Properties. He executed Ex-B.20 – Will in favour
of defendants 2 and 3, and late Sujatha. The attesting witnesses of the Will
was examined as D.W.2 and D.W.3 and thereby it was proved as per law.
After demise of Tamilarasan, the plaintiff with a view to trouble the
second defendant, executed a Sale Deed in respect of a portion of Suit
Properties in favour of fifth defendant and also obtained Ex-A.1 – Gift
Settlement Deed from first defendant. Based on the above documents, the
plaintiff clandestinely included her name in the revenue records right
before the Suit in 2013, without notice to Defendant Nos.2 and 3. Further,
the plaintiff’s right if any is extinguished by law of limitation. Further the
relief of partition sought for is barred by limitation. The Trial Court rightly
dismissed the Suit and there is no reason to interfere with the Judgment
and Decree of Trial Court.
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15.1. He would rely on the following decisions in support of his
contentions:
(i) Judgment of this Court in this Court (Division Bench) in
R.Rayappan -vs- Rajammal, reported 2025 (1) CTC 407;
(ii) Judgment of this Court in Puniyavathi -vs- Pachaiammal [A.S.
No.251 of 2011, decided on February 22, 2022].
DISCUSSION:
16. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the Suit Item Nos.12, 13, 14, 20 and 31 are self-acquired
properties of Tamilarasan or joint family properties ?
(ii) Whether oral family arrangement took place between the plaintiff,
first defendant, late Vimala and Tamilarasan in 1981 as alleged ?
(iii) Whether the relief of partition sought for is barred by limitation ?
(iv) Whether Ex-B.20 – Will is true, genuine and valid ?
(v) Whether the plaintiff is entitled to a share in the Suit Properties ?
(vi) Whether Ex-A.3 - Sale Deed would bind and affect the rights of the
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plaintiff ?
(vii) Whether the alleged Sale Deed dated September 17, 2012 would
bind the defendants 2 and 3 ?
17. For better appreciation of the facts of the case, the following
genealogy tree is drawn and there is no dispute with the relationship
between the parties :
Point No.(i)
18. From Ex-A.2 – Computerised Patta and Ex-B.8 to Ex-B.13 –
Pattas issued under UDR Scheme and Natham Land Tax Scheme, it is
discerned that joint family owned Nanja land of more than 4 Acre and
Punja land of more than 9 Acre. D.W.1 / second defendant in her evidence
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admitted that the joint family owned about 9 to 10 Acre of agricultural
land. Further, she admitted that after the demise of Nangoor Udaiyar, the
first defendant, the plaintiff and the late Vimala, all were residing under
one roof as a joint family and Tamilarasan was taking care of the joint
family and its properties. Thus, the existence of joint family properties is
proved. Now the plaintiff bears the burden to prove that there was surplus
income from the joint family properties to purchase Suit Item Nos.12, 13,
14, 20 and 31.
19. Nangoor Udaiyar purchased an extent of 26 Cents in Survey
No.163/3 for Rs.1,000/- in the name of Minor Tamilarasan, as he then was,
vide Ex-B.5 – Sale Deed. The said property is described as Suit Item
No.12. Though Suit Item No.12 is purchased in the name of Tamilarasan,
he could not have had any separate income to purchase it at that time and
hence, it can only be considered as a property purchased out of joint
family income by Nangoor Udaiyar and hence, it is a joint family property.
20. Vide Ex-A.10 - Sale Deed dated June 5, 1981, Tamilarasan
purchased Suit Item Nos.13 and 14, which are agricultural lands, for a sum
of Rs.3705/- from one Naina Udaiyar. Vide Ex-B.6 – Sale Deed dated
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November 20, 1985, Tamilarasan purchased Suit Item No.31, which is a
house site, in Ulundurpettai, for a sum of Rs.4,100/- and vide Ex-B.7,
Tamilarasan had purchased Suit Item No.20, which is agricultural land of
an extent of about 21 Cents.
21. There is no evidence available on record to show that there was
surplus income from the joint family properties to purchase the properties
covered under Ex-A.10, Ex-B.6 and Ex-B.7. On the other hand, from Ex-
B.21, which is a Letter dated December 2, 1996 from the Office of the
Regional Provident Fund Commissioner, Trichy addressed to Tamilarasan
stating that he has been sanctioned a sum of Rs.13,464/-, it could be
understood that Tamilarasan was working in Private Petrol Bunk,
Ulundurpettai. Ex-B.22 is the Letter dated June 25, 1996 from
A.R.Damodara Mudaliar and Company, a dealer of Bharat Petroleum
Corporation, addressed to Tamilarasan stating that his security deposit of
Rs.16,335/- is refunded. D.W.1 has deposed that in the house site
purchased viz., Suit Item No.30, Tamilarasan built a house and the
defendants 2 and 3 are currently residing there. Ex-B.24 – Property Tax
Receipt would support her statement.
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22. From a wholistic consideration of Ex-A.10, Ex-B.6, Ex-B.7 Ex-
B.21, Ex-B.22, Ex-B.24 and D.W.1, it could be discerned that Tamilarasan
was working in Petrol Bunk in Ulunderpettai, had separate income
therefrom and purchased Suit Item Nos.13, 14, 20 and 31. There is no bar
against a joint family manager buying separate properties using his
separate income. Hence, Suit Item Nos. 13, 14, 20 and 31 are separate
properties of Tamilarasan. Rest of the Suit Properties are all ancestral and
joint family properties and there is no satisfactory evidence to prove the
contrary. Point No.(i) is answered accordingly.
Point No.(ii)
23. The defendants 2 to 4 in their written statement have pleaded
that oral family arrangement took place in the year 1981, whereby the
plaintiff, the first defendant and late Vimala relinquished their share in
favour of Tamilarasan. It is settled law that oral family arrangement is
valid, however it has to be pleaded and proved through satisfactory
evidence. [See Kale -vs- Deputy Director of Consolidation, reported in
AIR 1976 SC 807; Lakshmipathy -vs- A.M.Chakrapani Reddiar, reported
in 2001-1-LW-257]
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24. Tamilarasan, on behalf of himself and his then minor daughters
– Suganthi and Sujatha, executed Ex-B.2 – Sale Deed on May 3, 1995 in
favour of Jagadeesan / P.W.2, who is the brother-in-law of plaintiff. In the
said Sale Deed, there was no recital about any oral family arrangement. In
Ex-B.15 – Sale Deed, Tamilarasan sold a joint family property of 3 Acre
44 Cents in Survey No.76/4 in favour of one Pichaikaran. In Ex-B.15 as
well, there is no reference to the alleged oral family arrangement. In Ex-
B.16 – Sale Deed, ancestral entitlement to an extent of 2 Acre 51 Cents
was sold by Tamilarasan, on behalf of himself and his minor daughters, in
favour of one Karuppa Udaiyar. There exist a specific reference in Ex-
B.16 that the property covered thereunder is an ancestral entitlement. In
the above transactions, there is nothing to infer oral family arrangement as
alleged by defendants 2 to 4. On the other hand, from the recitals
contained therein, it could only be inferred that the properties covered
thereunder are joint family properties. At this juncture it is relevant to refer
to following portion of the evidence of D.W.1/ second defendant – Kavita:
D.W.1. in para (3) of her chief affidavit has deposed as follows:
“vd; bgw;nwhh;fs; 1–k; gpujpthjp thjp kw;Wk;
tpkyh Mfpnahh;fsplk; nkw;go fld; bjhy;iy
gw;wpa[k;. FLk;g epytuk; gw;wpa[k; ngrpdhh;fs;/
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mjid mDrhpj;J jkpHurd;. 1–k; gpujpthjp. thjp
kw;Wk; fhyQ; brd;w tpkyh Mfpnahh; Kd;dpd;W
1981–k; Mz;oy; xU tha;bkhHp FLk;g Vw;ghL
eilbgw;wJ/”
Further in her cross examination on February 27, 2018, she has
deposed as follows:
“vd;id jpUkzk; bra;J itf;Fk;bghGJ
vd; bgw;nwhh;fs; jkpHurd; tPl;ow;F khg;gps;is tPL
ghh;f;f brd;wnghJ fld; ,Ug;gij mwpe;J bgz;
vt;thW bfhLg;gJ vd;W vd; bgw;nwhh;
nahrpj;jnghJ thjp. vd;khkpahh; kw;Wk; tpkyh
Mfpnahh; brhj;Jf;fspy; j';fSf;F vJt[k;
ntz;lhk; vdt[k;. eP'f; s; jhuhykhf bgz;id
bfhLf;fyhk; vd;W brhd;djpd;nghpy;jhd; jpUkzk;
ele;jJ/”
Further in her cross examination on April 9, 2018, she has deposed
as follows:
“jhth brhj;jpw;fhd gl;lh vz;/171 Vw;fdnt
eh';Th; cilahh; bgahpy; ,Ue;jJ/ mth; 1976–y;
,we;jgpwF 1977–y; jkpHurd; bgahpy; khw;wpf;
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bfhz;lhh;/ eh';Th; cilahhpd; Mz;thhpR
vd;wKiwapy; jkpHurd; bgahpy; gl;lh khwpaJ
vd;why; rhp/ gl;lh khw;wk; Vw;gLk;nghJ tprhuid
VjhfpYk; eilbgw;wjh vd;why; ,y;iy/////
eh';Th; cilahh; 1976–y; fhykhd gpwF
nkw;go K:tUk; g';F ntz;lhk; vd TwpaJ
vg;nghJ vd;why; 1977–k; Mz;L ntz;lhk; vd
Twpdhh;fs;/ 1977–y; vdf;F jpUkzkhftpy;iy.
mg;bghGJ vdf;Fk;. me;j FLk;gj;jpw;Fk;
rk;ke;jkpy;iy vd;why; rhp/////
thjp. rFe;jyh kw;Wk; tpkyh j';fSf;F
g';F ntz;lhk; vd;W tpLjiy Mtzk; vGjp
jutpy;iy. tha;bkhHpahfjhd; bjhptpj;jhh;/
tha;bkhHpahf bjhptpj;j tpguk; Fwpj;J vd;
fzth;jhd; brhd;dhh;/ nkw;go K:tUk; tha;bkhHp
tpLjiy vJt[k; bfhLf;ftpy;iy vdt[k;
tHf;fpw;fhf bfhLj;jjhf brhy;fpnwd; vd;why;
jtW////”
25. D.W.1 in her chief examination has deposed that oral family
arrangement took place in 1981. In her cross-examination on February 27,
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2018, she deposed that when her marriage with Tamilarasan was being
discussed by both side families, her family was hesitant that there were
loans payable by Tamilarasan, and at that time, first defendant, plaintiff
and late Vimala assured that they would not claim any share in joint family
properties. During her further cross-examination on April 9, 2018, she
deposed that in 1977, the plaintiff, first defendant and late Vimala orally
declared that they want no share in the joint family properties and the
same came to her knowledge from her husband. The above contradictions
makes it clear that D.W.1 has not taken a clear and categoric stand on the
oral family arrangement. There is no clear and cogent evidence as to when
the oral family arrangement took place, in the presence of whom, what
were the specific arrangements made etc. Hence, this Court is of the view
that the oral family arrangement has not been satisfactorily proved by the
defendants 2 to 4.
26. Mr.S.Parthasarathy, learned Senior Counsel would contend that
oral relinquishment has to be in writing if its value exceeds Rs.100/-. He
would invite the attention of this Court to Prema Suryanarayanan’s Case
(Single Judge of this Court) and Kannan’s Case (Single Judge of Kerala
High Court) [cited supra]. At the same time, he would fairly point out two
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Judgments authored by me, in C.Mani -vs- C.Rajan, reported in 2024 (3)
MWN (Civil) 691 and Vedhavalli -vs- Venkatesan, reported in 2024-5-
LW-609, wherein I have held that relinquishment need not mandatorily be
in writing under the Transfer of Property Act, 1882 and oral
relinquishment is valid just like how oral partition is valid, provided it is
proved. In view of the above finding that oral family arrangement has not
been proved in this case, this Court is of the view that there arises no need
to delve into the question of validity of oral relinquishment. Point No.(ii)
is answered accordingly in favour of plaintiff and against the
defendants.
Point Nos.(iii), (iv) and (v)
27. In this case, in 1976, father – Nangoor Udaiyar passed away.
Upon his demise, Tamilarasan alone was the surviving co-parcener; at that
time, neither the plaintiff nor her sister – late Vimala were a coparcener. It
is quite natural that the revenue records were mutated in the name of the
only surviving co-parcener - Tamilarasan. Then the plaintiff got married in
1978 and hence, she ceased to be a joint family member. Then the Tamil
Nadu Act No.1 of 1990 came into picture with effect from March 25,
1989. In view of Tamil Nadu Act No.1 of 1990, late Vimala became a co-
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parcener by birth along with Tamilarasan with effect from March 25, 1989.
She had equal interest in the Suit Properties on par with her brother –
Tamilarasan. Shortly thereafter, Vimala passed away unmarried and
intestate. She did not partition her share during her lifetime. Upon
Vimala’s demise, her coparcenary interest fell back into the hands of
Tamilarasan, the sole surviving member of the coparcenary, as per Section
29 B of the Hindu Succession Act, 1956 as amended by Tamil Nadu Act
No.1 of 1990. In these circumstances, it would be no wonder that the
revenue records in respect of joint family properties stand in the name of
Tamilarasan. For ready reference, said Section 29-B is extracted
hereunder:
"29-B. Interest to devolve by survivorship on
death.--When a female Hindu dies after the date of
the commencement of the Hindu Succession (Tamil
Nadu Amendment) Act, 1989, having, at the time of
her death, an interest in a Mitakshara coparcenary
property by virtue of the provisions of section 29-A,
her interest in the property shall devolve by
survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
Provided that if the deceased had left any child
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or child of a pre-deceased child, the interest of the
deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession,
as the case may be, under this Act and not by
survivorship.
Explanation I.--For the purposes of this section,
the interest of a female Hindu Mitakshara coparcener
shall be deemed to be the share in the property that
would have been allotted to her if a partition of the
property had taken place immediately before her
death, irrespective of whether she was entitled to
claim partition or not.
Explanation II.--Nothing contained in the
proviso to this section shall be construed as enabling
a person who, before the death of the deceased, had
separated himself or herself from the coparcenary or
any of his or her heirs to claim on intestacy a share in
the interest referred to therein."
28. Then the Hindu Succession (Amendment) Act, 2005 (Act No.39
of 2005) came into effect from September 9, 2005, as per which,
irrespective of the date of death of the father, the daughter is a co-parcener
by birth. In other words, by virtue of the amended Section 6, the plaintiff
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became a coparcener by birth. Needless to mention that though the
plaintiff became a coparcener by birth, her rights are enforceable only
from the date of commencement of the Hindu Succession (Amendment)
Act, 2005 (Act No.39 of 2005). In this regard, it is pertinent to refer to the
landmark Judgment of Hon'ble Supreme Court in Vineeta Sharma -vs-
Rakesh Sharma, reported in 2020 9 SCC 1, wherein it was held in
Paragraph No.137 as follows:
“137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after amendment in the same manner as son with
same rights and liabilities.
137.2. The rights can be claimed by the daughter
born earlier with effect from 9.9.2005 with savings as
provided in Section 6(1) as to the disposition or
alienation, partition or testamentary disposition
which had taken place before 20th day of December,
2004.
137.3. Since the right in coparcenary is by birth,
it is not necessary that father coparcener should be
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living as on 9.9.2005.
137.4. The statutory fiction of partition created
by proviso to Section 6 of the Hindu Succession Act,
1956 as originally enacted did not bring about the
actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining share
of deceased coparcener when he was survived by a
female heir, of ClassI as specified in the Schedule to
the 1956 Act or male relative of such female. The
provisions of the substituted Section 6 are required to
be given full effect. Notwithstanding that a
preliminary decree has been passed the daughters are
to be given share in coparcenary equal to that of a
son in pending proceedings for final decree or in an
appeal.”
29. Hence, though the plaintiff became co-parcener by the
antecedent incident of her birth, her enforcement of coparcenary rights is
only possible from September 9, 2005. The Suit was filed on June 14,
2013 i.e., within 12 years from the date from when the plaintiff’s
coparcenary rights became enforceable. Hence, the Suit is not barred by
Article 110 of the Limitation Act, 1963.
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30. Learned Counsel appearing for the respondent would
vehemently contend that succession opened in the year 1976 when
Nangoor Udaiyar passed away and the right to claim partition / right to sue
accrued in the year 1976 itself. The plaintiff failed to exercise her right for
more than the statutory period of 12 years and hence, the plaintiff’s right if
any, in the Suit Properties has been extinguished, and the plaintiff has
clearly been ousted from the Suit Properties. Hence, the relief of partition
is not available to the plaintiff and the Suit is barred by limitation. In
support of the above contentions, he would rely on R.Rayapan’s Case and
Puniyavathi’s Case [cited supra].
31. This Court has given its anxious consideration to the above
arguments. It is true that succession opened in the year 1976 when
Nangoor Udaiyar passed away, as per unamended Section 6 of the Hindu
Succession Act, 1956. As per the proviso to unamended Section 6 of the
Hindu Succession Act, 1956, plaintiff, first defendant, Vimala and
Tamilarasan, through intestate succession, would jointly be entitled to ½
interest of Nangoor Udaiyar in the coparcenary. But actual partition was
never effected. The concept of notional partition enunciated in unamended
Section 6 is only to identify the shares at the time of actual partition. In
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this regard, reference may be made to the Judgment of Hon'ble Supreme
Court in State of Maharashtra -vs- Narayan Rao Sham Rao Deshmukh,
reported in (1985) 2 SCC 321, wherein in Paragraph Nos.8 and 10, while
referring to Gurupad Khandappa Magdum -vs- Hirabai Khandappa
Magdum, reported in (1978) 3 SCC 383, it was held thus:
“8. A Hindu coparcenary is, however, a narrower
body than the joint family. Only males who acquire by
birth an interest in the joint or coparcenary property
can be members of the coparcenary or coparceners. A
male member of a joint family and his sons,
grandsons and great grandsons constitute a
coparcenary, A coparcener acquires right in the
coparcenary property by birth but his right can be
definitely ascertained only when a partition takes
place. When the family is joint, the extent of the share
of a coparcener cannot be definitely predicated since
it is always capable of fluctuating. It increases by the
death of a coparcener and decreases on the birth of a
coparcener. A joint family, however, may consist of
female members. It may consist of a male member, his
wife, his mother and his unmarried daughters. The
property of a joint family does not cease to belong to
the family merely because there is only a single male
member in the family. (See Gowli Buddanna v. CIT
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[(1966) 3 SCR 224 : AIR 1966 SC 1523 : (1966) 60
ITR 293] and Sitabai v. Ram Chandra [(1969) 2 SCC
544 : AIR 1970 SC 343 : (1970) 2 SCR 1] .) A joint
family may consist of a single male member and his
wife and daughters. It is not necessary that there
should be two male members to constitute a joint
family. (See N.V. Narendranath v. CWT [(1969) 1 SCC
748 : AIR 1970 SC 14 : (1969) 3 SCR 882 : (1969) 74
ITR 190] ) While under the Mitakshara Hindu law
there is community of ownership and unity of
possession of joint family property with all the
members of the coparcenary, in a coparcenary
governed by the Dayabhaga law, there is no unity of
ownership of coparcenary property with the members
thereof. Every coparcener takes a defined share in the
property and he is the owner of that share. But there
is, however, unity of possession. The share does not
fluctuate by births and deaths. Thus it is seen that the
recognition of the right to a definite share does not
militate against the owners of the property being
treated as belonging to a family in the Dayabhaga
law.
… … …
10.We have carefully considered the above
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decision and we feel that this case has to be treated as
an authority for the position that when a female
member who inherits an interest in the joint family
property under Section 6 of the Act files a suit for
partition expressing her willingness to go out of the
family she would be entitled to get both the interest
she has inherited and the share which would have
been notionally allotted to her, as stated in
Explanation I to Section 6 of the Act. But it cannot be
an authority for the proposition that she ceases to be
a member of the family on the death of a male
member of the family whose interest in the family
property devolves on her without her volition to
separate herself from the family. A legal fiction should
no doubt ordinarily be carried to its logical end to
carry out the purposes for which it is enacted but it
cannot be carried beyond that. It is no doubt true that
the right of a female heir to the interest inherited by
her in the family property gets fixed on the death of a
male member under Section 6 of the Act but she
cannot be treated as having ceased to be a member of
the family without her volition as otherwise it will
lead to strange results which could not have been in
the contemplation of Parliament when it enacted that
provision and which might also not be in the interest
of such female heirs. To illustrate, if what is being
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asserted is accepted as correct it may result in the
wife automatically being separated from her husband
when one of her sons dies leaving her behind as his
heir. Such a result does not follow from the language
of the statute. In such an event she should have the
option to separate herself or to continue in the family
as long as she wishes as its member though she has
acquired an indefeasible interest in a specific share of
the family property which would remain undiminished
whatever may be the subsequent changes in the
composition of the membership of the family. As
already observed the ownership of a definite share in
the family property by a person need not be treated as
a factor which would militate against his being a
member of a family. We have already noticed that in
the case of a Dayabhaga family, which recognises
unity of possession but not community of interest in
the family properties amongst its members, the
members thereof do constitute a family. That might
also be the case of families of persons who are not
Hindus. In the instant case the theory that there was a
family settlement is not pressed before us. There was
no action taken by either of the two females
concerned in the case to become divided from the
remaining members of the family. It should, therefore,
be held that notwithstanding the death of Sham Rao
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the remaining members of the family continued to
hold the family properties together though the
individual interest of the female members thereof in
the family properties had become fixed.”
32. Further reference shall also be made to Vineeta Sharma’s Case
(cited supra) wherein, in Paragraph No.103, it has been held thus:
“The only question involved in the aforesaid
matter was with respect to the Explanation of section
6 and the determination of the widow's share. In that
case, the question was not of fluctuation in the
coparcenary body by a legal provision or otherwise.
Everything remained static. No doubt about it, the
share of the deceased has to be worked out as per the
statutory fiction of partition created. However, in case
of change of body of the coparceners by a legal
provision or otherwise, unless and until the actual
partition is finally worked out, rights have to be
recognised as they exist at the time of the final decree.
It is only the share of the deceased coparcener, and
his heirs are ascertained under the Explanation to
section 6 and not that of other coparceners, which
keep on changing with birth and death.”
[Emphasis supplied by this Court]
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33. From the above, it is clear that the concept of notional partition
should be employed only to ascertain the shares of the deceased
coparceners and their heirs, at the time of actual partition. The said
concept of notional partition cannot be the basis to contend that joint
family had already been disrupted. Fluctuations in the coparcenary with
birth and death of co-parceners or by law, and the corresponding
fluctuation in the shares of each coparceners would continue to exist until
actual partition has been taken and the said concept of notional partition
cannot be held as a bar against the same.
34. Further, the plaintiff is claiming under the amended Section 6 of
the Hindu Succession Act, 1956 which came into effect from September 9,
2005 and not under the proviso to unamended Section 6. Hence, only two
conditions needs to be satisfied in this case. The coparcenary property
ought to be existent and there ought not to be any alienations, disposition
or actual partition of coparcenary property before December 20, 2004. Ex-
B.20 – Will is dated April 17, 2005 and Tamilarasan passed away on July
12, 2005. Ex-B.20 – Will would have come into effect only upon the
demise of Tamilarasan and hence, the only the latter date should be
considered as the date of disposition [See Judgment of Hon'ble High Court
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of Telangana in Seethama -vs- Thimma Reddy, reported in AIR 2017 Hyd
125]. As the date of disposition under Ex-B.20 – Will viz., July 12, 2005 is
past December 20, 2004, the same is not saved under amended Section 6.
Thus, coparcenary property is existent and there is no valid alienation,
disposition or actual partition qua suit properties before December 20,
2004. Hence, the plaintiff is a coparcener by birth entitled to coparcenary
property and Ex-B.20 - Will is not binding on her share. Her right in the
coparcenary is enforceable only from September 9, 2005 and hence, even
while assuming that her right to sue first accrue as early as on September
9, 2005, the Suit filed in 2013 is well within the limitation under Article
110 of the Limitation Act, 1963.
35. In Rayapan's Case [cited supra], sister and her legal heirs filed
the Suit against brother and his children. Succession opened upon father's
demise in 1966-67 and the brother and his sons entered into partition vide
registered Partition Deed dated February 15, 1995. Revenue records were
mutated by 1970. Further, large scale improvements were effected over the
Suit Property therein. Suit was filed in 2012. It was in these facts and
circumstances, a learned Division Bench of this Court held that the
plaintiff therein / sister was ousted from the Suit Property. The facts of
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Rayapan's Case are deviant from the case on hand and hence, not
applicable.
36. In Punniyavathi's Case [cited supra], case of the plaintiffs is
that the Suit Property is a seperate property of father, who passed in 1978
leaving behind wife, four sons and three daughters. Wife passed away in
2004. Two among the four daughters filed the Suit for partition against the
rest of their siblings. Defence was that a registered partition took place on
July 25, 1991 among the sons and further, on February 20, 2008, a
registered partition took place among a branch of one among the two sons.
In these circumstances, a learned Single Judge of this Court held that the
plaintiff's approached the Court 31 years after the succession became open
and 18 years after the partition of properties among brothers, and the very
fact leads to an inference that the plaintiffs have been ousted and the
possession of the defendants was adverse to that of the plaintiffs and the
plaintiffs' rights got extinguished under Section 27 of the Limitation Act,
1963. Whereas, in the case on hand, even while assuming that right to sue
first accrue as early as on September 9, 2005 and the Suit was filed in
2013, well within 12 years. Hence, Punniyavathi's Case is distinguishable
from the instant case on facts and hence not applicable.
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37. Hence, the contention of learned Counsel appearing for the
respondent that limitation began the moment succession opened upon the
demise of Nangoor Udaiyar deserves to be rejected.
38. From the facts and circumstances of the case, it could be
inferred that Ex-B.20 - Will was executed in anticipation of the plaintiff's
claim with a view to defeat her rights. As stated supra, Ex-B.20 - Will is
not binding on her share. It is apposite to state that the Suit was filed on
June 14, 2013. Though summon was duly served, first defendant who is
the competent person to deny Ex-B.20 - Will did not appear and contest
the case. To be noted, the plaintiff is not a class I legal heir of the testator.
Hence, in the presence of class I legal heirs, namely defendants 1 to 3, she
has no right to deny Ex-B.20 - Will. It is hereby clarified that the plaintiff
can question Ex-B.20 - Will if it had come into effect before December 20,
2004. However, as stated supra, Ex-B.20 - Will was executed to defeat the
plaintiff's legitimate rights of the plaintiff over the Suit Properties and
hence, she has every right to question its contents which may cause
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prejudice to her right over the Suit Properties. In these circumstances, Ex-
B.20 - Will requires only formal proof in this case. Nonetheless, the
second defendant has proved the Will by examining D.W.2 and D.W.3,
who are the attesting witnesses thereto. Their evidence proves the
execution of the Will by Tamilarasan voluntarily and in a fit state of mind.
Hence, though the Will is not binding on the plaintiff's share, it is valid in
respect of Tamilarasan's share.
39. This Court shall now determine the plaintiff's share in the
coparcenary property. Being a co-parcener on equal footing with the son,
the plaintiff along with Nangoor Udaiyar and Tamilarasan would each be
entitled to equal share in the Suit Properties i.e., each of them would be
entitled to 1/3 share. Upon the demise of Nangoor Udaiyar intestate, his
1/3 share would devolve upon the plaintiff, Tamilarasan and first
defendant as per Section 8 of the Hindu Succession Act, 1956. Thus, the
plaintiff would be entitled to 1/3 + 1/9 = 4/9 share, similarly Tamilarasan
would be entitled to 4/9 share, and first defendant 1/9 share. Tamilarasan
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executed Ex-B.20 - Will valid in respect of his share and passed away.
Hence, his share in his branch's total 4/9 share [third defendant became a
co-parcener by birth] will devolve as per the Will.
40. As regards Ex-A.1 - Gift Settlement Deed allegedly executed by
first defendant, it is void for the following reasons:
(i) As stated supra, Vimala's interest in the coparcenary devolved
upon Tamilarasan qua the only surviving member of the
coparcenary under Section 29 B of the Hindu Succession Act,
1956. While so, Ex-A.1 -Gift Settlement Deed is executed as if
Vimala's share fell into the hands of first defendant.
(ii) There can be no Gift in respect of undivided shares of joint family
property without the consent of other joint family members [See
Judgment of Hon'ble Supreme Court in Pavitri Devi -vs- Darbari
Singh, reported in (1993) 4 SCC 392 and ].
(iii) Thirdly, suppression of material fact. Ex-A.1 - Gift Settlement
Deed reads as if the plaintiff and the first defendant alone are the
legal heirs of Nangoor Udaiyar, Vimala and Tamilarasan without
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mentioning the legal heirs of Tamilarasan.
(iv) It is apparent on the face of record that Ex-A.1 - Gift Settlement
Deed was executed only with a view to defeat and defraud the
rights of the defendants 2 and 3 in the Suit Properties.
41. Hence, Ex-A.1 - Gift Settlement Deed is void. Upon the demise
of first defendant intestate, her 1/9 share would devolve upon the plaintiff
and third defendant equally as per Section 15 (1) (a) of the Hindu
Succession Act, 1956. Thus, plaintiff share will be 4/9 + 1/18 = 9/18 = ½
share. Therefore, the plaintiff is entitled to seek partition of her ½ share in
the joint family properties. As stated supra, as Suit Item Nos.13, 14, 20
and 31 are self-acquired properties of Tamilarasan, the plaintiff is entitled
to ½ share in all the Suit Properties except Suit Item Nos. 13, 14, 20 and
31. Point Nos.(iii), (iv) and (v) are answered accordingly.
Point Nos.(vi) and (vii)
42. Ex-A.3 - Sale Deed has been executed by defendants 2 and 3 in
favour of fourth defendant in respect of a major portion of the Suit
Properties. As held supra, the plaintiff is entitled to ½ share in the Suit
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Properties except Suit Item Nos. 13, 14, 20 and 31. Hence, Ex-A.3 - Sale
Deed is not binding on the share of the plaintiff. Similarly, the Sale Deed
dated September 17, 2012 executed by the plaintiff is valid only in respect
of the plaintiff's share and will not bind the shares of defendants 2 and 3.
Point Nos.(vi) and (vii) are answered accordingly.
CONCLUSION:
43. Resultantly, the Appeal Suit stands partly-allowed. The
Judgment and Decree of the Trial Court is hereby set aside. The plaintiff is
entitled to ½ share in the Suit Properties except Suit Item Nos.13, 14, 20
and 31 and to that effect, a Preliminary Decree is passed. Taking into
consideration the relationship between the parties, there shall be no order
as to costs.
06 / 10 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK/pam
To
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The III Additional District Judge
III Additional District Court
Kallakurichi.
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R. SAKTHIVEL, J.
TK/pam
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.418 OF 2019
06 / 10 / 2025
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