A partition claim based on maternal inheritance failed, but the plaintiff inherited a widow's share during the suit. The Court upheld his one-fourth share, accepted the widow's absolute ownership under Section 14(1), and rejected adverse possession. The second appeal was dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.12.2017
PRONOUNCED ON : 23.01.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.1704 of 2001
made in CMP No.17545 of 2001)
... Appellants/2 & 4 the defendants
Vs.
2.Thillaiammal ... Respondents/Plaintiff and 3rd defendant
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 12.04.2001 made in A.S.No.108 of 1998, on the file of the Additional District Judge, Nagapattinam, confirming the judgment and decree dated 17.02.1997, made in O.S.No. 283 of 1993, on the file of the Principal Subordinate Judge, Nagapattinam.
For Appellants : Mr.Srinath Sridevan For Respondents : Mr.P.Vijendran
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 12.04.2001 passed in A.S.No.108 of 1998, on the file of the Additional District Court, Nagapattinam, confirming the judgment and decree dated 17.02.1997, passed in O.S.No. 283 of 1993, on the file of the Principal Subordinate Court, Nagapattinam.
suit is not maintainable either in law or on facts. It is true that the suit property originally belonged to Govinda pillai and he died leaving behind his two sons and daughter as putforth in the plaint. However, as per the law applicable then in force, on the death of Govinda pillai during the year 1940, his daughter would not be entitled to claim any share and his property would devolve only upon his sons and Murugaiya pillai's only wife, by name, Kunjammal, died issueless and Murugaiya pillai also died in the year 1945 and the first defendant is not his second wife and not legally wedded to him and she is only a concubine and she cannot claim any share as the legal heir of Murugaiya pillai and on the death of Murugaiya pillai on 1945, the sole surviving co-parcener being Somasundaram pillai, he succeeded to the entire property and on the death of Somasundaram pillai on 16.8.1986, his legal heirs namely Veerasamy and the third defendant succeeded to the property and as per the law in force at the time of the death of Somasundaram pillai, his daughter namely, the third defendant, would also not be entitled to any share and therefore, his only son Veerasamy became the absolute owner of the suit property and therefore, neither the plaintiff nor the first defendant and the third defendant are entitled to claim any share in the suit property and they had never jointly enjoyed the suit property along with Veerasamy or the second defendant, as the case may be, and the joint possession and enjoyment pleaded is false and imaginary and the suit laid by the plaintiff claiming to be in possession of the suit property for the relief of permanent injunction in O.S.No.518/73 came to be dismissed on 29.3.75 holding that he his not in the possession and the suit laid by the first defendant claiming to have some interest in the suit property in O.S. No.135/69, which suit has been laid for the relief of redemption of usufructuary mortgage, the said mortgage having been discharged by Veerasamy, the suit was ultimately dismissed on 21.3.72 and thereby, it is only Veerasamy, who has been all along continuously in enjoyment of the suit property for several years in hostile assertion of the title excluding others to their knowledge without any interruption and thus, he has perfected his title to the suit property by way of adverse possession and hence, the suit laid by the plaintiff is barred by limitation and the first defendant has not challenged the dismissal of the suit in O.S.No.135/69 and also not laid any separate suit for claiming her share in the suit property and even the third defendant has not asserted any claim of share in the suit property and therefore, even if they had any share, the same had got extinguished by the continuous enjoyment of Veerasamy on the ground of ouster and Veerasamy died in 1992, leaving behind the second defendant and his daughter as his legal heirs and they have succeeded to the suit property and hence, the plaintiff is not entitled to claim any share in the suit property and without any cause of action, the suit laid by
the plaintiff is liable to be dismissed.
“In the absence of a cause of action on the date of the plaint, can the suit for partition be maintained, assuming that such a right had accrued to the plaintiff subsequently?”
defendant are his wife and daughter respectively. The third defendant is the daughter of Somasundaram pillai. The first defendant is the second wife of Murugaiya pillai. Claiming that he is entitled to obtain 1/3 share in the suit property, on the footing that he is the legal heir of Dhanapakkiam, the suit has come to be laid by the plaintiff. Further, it is also the plea of the plaintiff during the course of the trial that as the first defendant had died pending suit and he being his legal representative, as per the further case of the plaintiff, the same having also been recorded by the trial Court, according to the plaintiff, the 1/3rd share to which the first defendant is entitled to, would also devolve upon him after her death. In toto, according to the plaintiff, he is entitle to 2/3 rd share in the suit property.
that the first defendant had laid the suit in O.S.No.135/69, on the file of the District Munsif Court, Nagapattinam and in the said suit, Veerasamy, son of Somasundaram pillai, the plaintiff, son of Dhanapakkiam, were impleaded as the defendants 2 and 3 respectively and the mortgagee Pachamuthu Nadar has been arrayed as the first defendant. The judgment rendered in the above said suit has come to be marked as Ex.A2 (certified copy) and a perusal of the same would go to show that several contentions were putforth by the respective parties therein and therein also, a challenge has been made by Veerasamy as regards the status of the first defendant, who was the plaintiff in the said suit and accordingly, on the basis of the evidence adduced by the respective parties in the said suit, the Court taking into consideration the recitals found in the settlement deed marked as Ex.A1, in the present suit as above stated and also the notice issued by Veerasamy to the first defendant dated 02.04.1968 marked as Ex.A3 in O.S.No.135/69, wherein he has clearly issued the said notice admitting the status of the first defendant that she is the wife of Murugaiya pillai and accordingly, based on the same also and also from the evidence adduced by the respective parties in the said suit, the Court in the above said suit determined that the first defendant is the legally wedded wife of Murugaiya pillai. The contention putforth by Veerasamy that Ex.A1 settlement deed cannot be validly accepted was also rejected by the Court in the said suit, particularly noting that he having chosen to discharge the mortgage deed executed by the first defendant in favour of Pachamuthu Nadar, is not entitled to challenge the validity of the settlement deed Ex.A1. Accordingly, firmly concluded that the first defendant is the legally wedded wife of Murugaiya pillai. As against the above said findings rendered in the said suit, it is seen that no challenge has been made by Veerasamy and others. It is therefore found that the said findings have become final. In such view of the matter, it is too late for the defendants 2 and 4 herein to again rake up the issue of the status of the first defendant as if she is not the legally wedded wife of Murugaiya pillai.
Ex.A4. In such view of the matter, the Courts below have rightly upheld the status of the first defendant that she is legally wedded wife of Murugaiaya pillai and as such entitled to lay a claim of share in the suit property.
properties in favour of the first defendant by way of Ex.A1 settlement deed. However, it has been held that the same would not bind the share of Veerasamy in the family properties.
the actual or physical possession and accordingly, it is seen that so long as the Hindu female has a right to possession, her being not in physical possession matters very little and this position of law can be appreciated from the decision of the Apex Court reported in AIR 1996 SC 869 (Dr.Mahesh Chand Sharma Vs.Smt. Raj kumar Sharma and others) wherein the above position of law has been explained as follows:
Section 14 operates on its own force once the facts requisite for attracting its application are established. It must be remembered that the settlement between Satyawati and the first defendant was arrived at on January 27, 1955 whereas the Hindu Succession Act came into force in June, 1956, i.e., within less then seventeen months. Moreover, we are concerned with right to possession and not physical possession. It has been repeatedly held by this Court (See the several decisions referred to under the heading “possessed – meaning of in Mulla's Hindu Law (Sixteenth Edition at Page 810)) while constructing the expression “possessed” in Section 14 (1) that the said expression means and refers to a right to possession and not necessarily actual or physical possession. So long as she has a right to possession, the mere fact that the female Hindu was not in physical possession matters very little. Therefore, it is immaterial whether Satyawati was physically occupying the said first floor or not. So long as she had the right to possession over the said first floor, Section 14 (1) is attracted.
In the light of the above said determination of the Apex Court as regards the expression “possessed” in Section 14 (1), it is seen that the contention of the defendants' counsel that the right which the first defendant had over the properties concerned, prior to 1956 Act would not blossom into her estate as she had not been in the physical possession of the properties concerned as such, cannot at all be accepted. Further, the above contention also does not merit acceptance when it is found that the first defendant had been exercising ownership over the said properties as above seen by the executing the mortgage deed, by selling the family properties by way of Ex.A4 along with the other co-owners etc., It is seen that the first defendant cannot be stated to have been excluded from the right to possess the family properties inclusive of the suit property and such being the position, the contention putforth that the
first defendant is not entitled to seek the benefit of Section 14 (1) of the Act, 1956, does not merit acceptance.
the Courts have negatived the plea of partition claimed by the plaintiff as the son of Dhanapakkiam. Such being the position, it cannot be straightaway concluded that the plaintiff cannot at all lay a claim of partition as the son of Dhanapakkiam who is admittedly the daughter of Govinda pillai and utmost it could only be held that on a wrong notion, the plaintiff has laid the suit for partition on the belief that he is also entitled to seek a share but when the materials placed during the course of trial only, it has come to be determined that the plaintiff is not entitled to claim a share in the suit property as the son of Dhanapakkiam, in view of the said position, it cannot be thereby held that the plaintiff had no cause of action at all to institute the suit. In such view of the matter, it is found that the contention putforth by the counsel for the defendants 2 and 4 that the plaintiff has no cause of action at all to lay the suit for partition cannot be appreciated as such.
and Murugaiya pillai would be each entitled to half share in the properties left behind by Govinda pillai and accordingly, determined that the third defendant is entitled to 3/8th share the defendants 2 and 4 are entitled to 3/8th share and the plaintiff is entitled to 2/8th share and accordingly, granted the preliminary decree in favour of the plaintiff. The above said determination of the shares of the respective parties by the Courts below has not been shown to be erroneous or incorrect and accordingly, it is found that the determination of the Courts below by fixing the share of the plaintiff and accordingly granting the preliminary decree in favour of the plaintiff does not warrant interference. The Courts below are found to have analysed the materials placed on record in the right perspective, both factual and legal aspects and accordingly, correctly determined the issues involved in the matter and hence the judgment and decree of the Courts below do not warrant any interference.
S. A.No.1704 of 2001 SJ(CO) GN(01/03/2018)
3 issues framed by the court
Could the partition suit be maintained when the plaintiff's original claim failed but he inherited a share during its pendency?
Did the widow's right to possession suffice for her interest to become absolute under Section 14(1), despite absence of physical possession?
Had the contesting defendants established adverse possession by ousting the other co-owners?
Colour shows how this judgement treated each authority
Dr.Mahesh Chand Sharma Vs.Smt. Raj kumar Sharma and othersApplied¶50
AIR 1996 SC 869 (Dr.Mahesh Chand Sharma Vs.Smt. Raj kumar Sharma and others) · Who else cites this
Shub Karan Bubna Alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and othersReferred¶56
(2009) 9 SCC 689 (Shub Karan Bubna Alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and others) · Who else cites this
2 provisions across 1 enactments
Radha
Mariammal @ Radhika
Thambia Pillai
Thillaiammal
T.RAVINDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
