Partly allowed

S.L.Mothi Lal v. S.L.Kuppusamy (Died)

Madras HC19 Oct 2023AS(MD)/258/2008

Case brief

AI extract

What is this about?

Appeals against a common judgment in partition and injunction suits. The High Court partly allowed the partition appeal, holding that items 1-20 became coparcenary property on the birth of the 8th defendant after partition, and declared the plaintiff entitled to 1/60 share in items 1-20 and 1/10 share in items 21-23, and dismissed the injunction appeal.

What did the court decide?

Preliminary decree declaring that the plaintiff is entitled to 1/60 share in items 1 to 20 and 1/10 share in items 21 to 23 of the suit properties. Appeal in A.S.(MD)No.259 of 2008 dismissed. C.M.P.(M

S.L.Mothi Lal Vs S.L.Kuppusamy (Died) — Partition | Madras HC (2023)

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A.S.(MD)Nos.258 and 259 of 2008

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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RESERVED ON: 27.07.2023

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PRONOUNCED ON:19.10.2023

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CORAM

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THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

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A.S.(MD)Nos.258 and 259 of 2008 and

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C.M.P.(MD)No.4237 of 2019

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A.S.(MD)No.258 of 2008:

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1.S.L.Mothi Lal

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2.S.L.Kuppammal @ Lakshmi

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3.Anusuya @ Lakshmi Ammal

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4.Parbhavathi

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5.Indira

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6.S.L.Sivaji

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7.S.N.Usha : Appellants/Defendants 2 to 6, 8 and 9

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Vs.

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1.S.L.Kupplusamy(died) : Respondent / Plaintiff

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2.S.L.Chinna Kuppusamy 3.V.N.Sai Prasanna Devi : Respondents/Defendants 1 and 7

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4.Santhimathi

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5.Kamalesh

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6.Pathmavathi(died) : Respondents

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(Respondents 4 to 6 are brought on record as LRs of the deceased 1^st respondent

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1/44

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https://www.mhc.tn.gov.in/judis 1/44

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A.S.(MD)Nos.258 and 259 of 2008

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vide order dated 28.03.2023 made in C.M.P.(MD)Nos.12806, 12926 and 11946 of 2022

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Death of the sixth respondent is recorded and the respondents 4 and 5 who are already on record are recorded as LRs of the deceased R.6)

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PRAYER:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against common judgment dated 09.04.2008, rendered in O.S.No.60 of 2006, on the file of the Additional District Judge (Fast Track Court), Ramanathapuram.

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For Appellants : Mr.S.Subbiah Senior Counsel for Mr.G.Aravinthan for A.1 to A.5 : Mrs.P.Jessi Jeeva Priya for R.6

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For Respondents :Mr.S.Parthasarathy for Mr.K.Govindarajan

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A.S.(MD)No.259 of 2008:

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S.L.Sivaji

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: Appellant/Plaintiff

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Vs.

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S.L.Kupplusamy(died) : Respondent / Defendant

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https://www.mhc.tn.gov.in/judis 2/44

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A.S.(MD)Nos.258 and 259 of 2008

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2.Santhimathi 3.Kamalesh 4.Pathmavathi(died)

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: Respondents

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(Respondents 2 to 4 are brought on record as LRs of the deceased sole respondent vide order dated 28.03.2023 made in C.M.P.(MD)Nos.12806, 12926 and 11946 of 2022

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Death of the fourth respondent is recorded and the respondents 2 and 3 who are already on record are recorded as LRs of the deceased R.4)

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PRAYER:- Appeal Suit filed under Section 96 of the Code of Civil Procedure against common judgment dated 09.04.2008, rendered in O.S.No.31 of 2007, on the file of the Additional District Judge (Fast Track Court), Ramanathapuram.

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For Appellant : Mrs.P.Jessi Jeeva Priya

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For Respondents :Mr.S.Parthasarathy for Mr.K.Govindarajan for R.2 and R.3

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: R.1 and R.4 - died

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https://www.mhc.tn.gov.in/judis 3/44

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A.S.(MD)Nos.258 and 259 of 2008

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COMMON JUDGMENT

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These Appeal Suits are directed against the common judgment passed in O.S.No.60 of 2006 and O.S.No.31 of 2007, dated 09.04.2008, on the file of the Additional District and Fast Track Court, Ramanathapuram.

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The suit in O.S.No.60 of 2006 is for partition. The suit in

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O.S.No.31 of 2007 is for permanent injunction.

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The facts not in dispute are:

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(i) One S.K.Lakshmi Narayanan had two wives and through his first wife Padmavathy, he had three sons – the plaintiff and the defendants 1 and 2 and a daughter – third defendant. After the death of the first wife Padmavathy, he married the fourth defendant – Anusuya @ Lakshmi Ammal and through her, he had a son - 8^th defendant and four daughters – defendants 5 to 7 and 9.

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(ii) Items 1 to 20 of the suit properties along with many other properties were the ancestral and joint family properties of the said

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A.S.(MD)Nos.258 and 259 of 2008

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S.K.Lakshmi Narayanan and that the said Lakshmi Narayanan has entered into a partition deed on 14.11.1969 along with his sons born through his first wife and whereunder “A” schedule properties therein (the present suit items 1 to 20) were allotted to the share of S.K.Lakshmi Narayanan, “B” schedule properties were allotted to the share of the plaintiff and “C” and “D” schedule properties were allotted to the shares of the defendants 1 and 2 respectively.

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The case of the plaintiff is that before the second marriage of S.K.Lakshmi Narayanan, when the said Lakshmi Narayanan wanted to marry second time, the elders of the family advised him that he should make some permanent arrangements for his children born through his first wife and on that basis, the partition deed dated 14.11.1969 came to be executed, that they have also entered into an arrangement at the time of Ex.A.1-partition to the effect that the properties so allotted to Lakshmi Narayana were to be enjoyed by him for his life time and after his death, the said properties to be divided among the plaintiff and the defendants 1 and 2, that the said Lakshmi Narayanan has purchased items 21 to 24 of the suit properties, out of the income derived from the suit items 1 to 20, that the said Lakshmi Narayanan died on 03.01.2006 and after his

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A.S.(MD)Nos.258 and 259 of 2008

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demise, as per the arrangements arrived at between the parties, the plaintiff and his brothers – defendants 1 and 2 derived rights over the suit properties and that since the defendants 1 and 2 were not amenable for partition, the plaintiff was constrained to file the above suit for partition and allotment of 1/3^rd share in the suit properties.

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The plaintiff has also taken a stand that his father S.K.Lakshmi Narayanan was of unsound mind and not keeping his good health two years prior to his death and apprehending that some documents were proposed to be taken from his father, he was forced to send a legal notice by setting out the illness of his father and that even after the death of his father, the defendants have been creating documents in the name of the 8^th defendant.

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The seventh defendant had remained exparte.

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The defence of the other defendants is that during the life time of their father S.K.Lakshmi Narayanan, he executed a settlement deed dated 27.08.2003 settling item No.6 of the suit properties to all his daughters – defendants 3, 5 to 7 and 9, that subsequently he executed

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another settlement deed dated 27.01.2004 settling items 1 to 5, 7 and 21 to 23 upon the 8^th defendant and also executed a Will on 27.01.2004 itself bequeathing the items 8 to 20 of the suit properties in favour of the 8^th defendant and that therefore, the plaintiff is not entitled to claim any share in the suit properties.

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It is their further defence that the suit items 21 to 23 were purchased by the father Lakshmi Narayanan after Ex.A.1 partition and the same are his absolute properties, that suit item 24 was purchased by the 8^th defendant and it is his separate property and that after the death of their father Lakshmi Narayanan, the 8^th defendant has become the owner of the items 1 to 5, 7 to 23 of the suit properties through the settlement and will executed by the said Lakshmi Narayanan and item 24 being his separate property.

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The learned Judge upon considering the above pleadings has framed the following issues:

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(1) Whether the plaintiff is entitled to get 1/3^rd share in the suit

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properties?

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(2) Whether all the suit properties except item 6, were owned by the 8^th defendant?

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(3) What other relief, the plaintiff is entitled to?

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Before filing of the suit in O.S.No.60 of 2006, the 8^th defendant has filed a suit in O.S.No.65 of 2005, claiming permanent injunction against the defendant (the plaintiff in O.S.No.60 of 2006), on the file of the District Munsif Court, Paramakudi in respect of two items of properties which were allotted to his father S.K.Lakshmi Narayanan in the partition effected on 14.11.1969 and that subsequently, the above suit was transferred to the Additional District and Fast Tract Court, Ramanathapuram and the same was renumbered as O.S.No.31 of 2007.

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The case of the 8^th defendant in O.S.No.31 of 2007 is that his father Lakshmi Narayanan has executed a registered settlement deed dated 27.01.2004 settling 9 items of properties including the suit properties therein and since the settlement, the 8^th defendant has been in possession and enjoyment of the properties, that the plaintiff who is not having right, title or interest over the said properties, after getting the tax receipt and the electrical consumption receipts and other documents for

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verification, has attempted to interfere with the possession of the 8^th defendant and that therefore, the 8^th defendant was constrained to file the said suit for permanent injunction restraining the defendant and his men from interfering with his possession and enjoyment of the property.

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The defendant (the plaintiff in O.S.No.60 of 2006) has filed a written statement raising the contentions made in the plaint in O.S.No.60 of 2006.

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The learned trial Judge, upon considering the above pleadings, has framed the following issues:

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(1) Whether the plaintiff is liable to pay the Court fees under

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Section 27(a) of the Tamil Nadu Court Fees and Suit Valuation Act?

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(2) Whether the plaintiff is entitled to get permanent injunction as

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claimed?

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(3) To what other relief, the plaintiff is entitled to?

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Admittedly, both the suits were tried jointly and the evidence

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was ordered to be recorded in the suit in O.S.No.60 of 2006. During trial, the plaintiff has examined himself as P.W.1 and exhibited 10

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A.S.(MD)Nos.258 and 259 of 2008

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documents as Exs.A.1 to A.10. The defendants have examined the 8^th defendant as D.W.1 and two other witnesses viz., Dr.V.N.Thulasiraman and P.S.Janarthanan as D.W.2 and D.W.3 respectively and 30 documents as Exs.B.1 to B.30. The learned trial Judge, upon considering the evidence both orally and documentary and on hearing the arguments of both sides, has passed the common judgment dated 09.04.2008, by holding that all the suit properties items 1 to 24 were belonging to the deceased S.K.Lakshmi Narayanan, has passed a preliminary decree that the plaintiff is entitled to get 1/10^th share in the suit properties and dismissed the suit in O.S.No.31 of 2007.

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The learned trial Judge in the body of the judgment, after recording a finding that all the properties were belonging to S.K.Lakshmi Narayanan, has held that the children of S.K.Lakshmi Narayanan through his first wife and the second wife and the second wife are entitled to get 1/10^th share each, but in the final paragraphs, it was concluded that the plaintiff is entitled to get 1/3^rd share in suit items 1 to 24 of the suit properties. It is clearly evident that it is only a mistake committed by oversight and the same cannot be taken advantage of by the parties. Aggrieved by the impugned common judgment and separate decrees

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A.S.(MD)Nos.258 and 259 of 2008

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passed in O.S.No.60 of 2006 and O.S.No.31 of 2007, the defendants 2 to

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6, 8 and 9 have preferred the appeal in A.S.(MD)No.258 of 2008 and the

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8^th defendant has preferred the appeal in A.S.(MD)No.259 of 2008.

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C.M.P.(MD)No.4237 of 2019:

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The above petition is filed for reception of additional evidence. The 8^th defendant in the affidavit filed in support of the above petition has stated that when he was examined as D.W.1, he could not produce the sale deed dated 11.03.1994 executed in his favour, on the file the SubRegistrar, Parasala, as the same has been misplaced and could not be traceable, that since the sale deed was not produced evidencing the item 24 of the suit properties standing in his name, the trial Court has given a finding that the said item also belonged to his father and that therefore, he was constrained to file the present application for producing the registration copy of the sale deed, dated 11.03.1994 as additional evidence to prove the ownership over item 24 of the suit properties.

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The respondent/plaintiff has not filed any counter or objection to the above petition.

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A.S.(MD)Nos.258 and 259 of 2008

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The point for consideration in the above petition is as to whether the copy of the sale deed dated 11.03.1994 is to be received as

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additional evidence?

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The learned Senior Counsel for the appellants would submit that the trial Court has held that items 1 to 20 of the suit properties allotted to S.K.Lakshmi Narayanan are the separate properties allotted to him in Ex.A.1 – partition is very much against the settled Hindu Law, that when the joint family properties came to be divided, the properties allotted to co-parceners would be his separate properties so long as no son was born to him and once a son is born by birth, the son so born becomes a co-parcener along with his undivided father and all the properties allotted to the share of the father under the partion deed would become the joint family properties at their hands and that since the 8^th defendant was born to S.K.Lakshmi Narayanan subsequent to Ex.A.1 partition, the 8^th defendant becomes a member of the joint Hindu family with his father and as such, the plaintiff cannot claim any right in respect of the coparcenary properties of his father with the 8^th defendant, as the plaintiff being a separated and divided son could not be a member in the joint family consisting of his father and the 8^th defendant.

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A.S.(MD)Nos.258 and 259 of 2008

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The learned Senior Counsel would further submit that S.K.Lakshmi Narayanan had acquired three more properties items 21 to 23 and according to the plaintiff, items 21 to 24 were purchased by S.K.Lakshmi Narayanan from the income derived from items 1 to 20, that item 24 was shown to be standing in favour of the 8^th defendant and in the absence of any pleadings by the plaintiff that item 24 was the separate property of S.K.Lakshmi Narayanan, the trial Court erred in giving a finding that item 24 also belongs to his father only on account of the sale deed standing in the name of the 8^th defendant was not produced by him, that the appellants have produced the registration copy of the sale deed dated 11.03.1994 pertaining to item 24 of the suit properties as additional evidence in C.M.P.No.4237 of 2019 and that therefore, the same may be received as additional evidence as it pertains to the very subject matter of the suit

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The learned Senior Counsel would further contend that an objection was raised that the original of the sale deed dated 11.03.1994 had been registered in the Sub Registrar Office, Parasala and as such, the same is inadmissible in evidence, that the said document was registered https://www.mhc.tn.gov.in/judis 13/44

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on 11.03.1994, but the amendment to the Registration Act, Section 28(b) of the Registration Act came into force only from 29.03.1997 and that therefore, the objections raised cannot be sustained.

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The learned Senior Counsel would further submit that S.K.Lakshmi Narayanan has executed the settlement deed dated 27.01.2004 in favour of the 8^th defendant over items 1 to 5, 7 and 21 to 23 and also executed a Will dated 27.01.2004 pertaining to items 8 to 20 and even prior to the above two documents, he executed a settlement deed under Ex.B.3 dated 27.08.2003 in favour of his daughters in respect of item 6 of the suit properties, that the defendants in order to prove Ex.B.1 – settlement deed and Ex.B.2 Will, have examined two attestors to the said documents viz., D.W.2, who is the brother-in-law of the plaintiff and D.W.3 – friend of the plaintiff's brother-in-law, that D.W.2 being the Surgeon is more competent to speak about the execution of Exs.B.1 and B.2 documents and though he did not speak as expected by the plaintiff, what is required is the consideration of his entire evidence and a combined reading of the evidence of D.W.2 and D.W.3 would make it clear that the above documents came to be executed before D.W. 2 and he was a witness for the thumb impression affixed by the testator

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and the witnesses were present when the testator put his thumb impresion and that D.W.2 spoke that only on account of age factor, he was able to move certain extent by himself and their evidence is natural and believable, that during cross-examination of D.W.2 and D.W.3, there was no cross-examination whether the thumb impressions found in Ex.B.1/B. 3 were not that of the testator S.K.Lakshmi Narayanan, that the witnesses cannot be expected to speak like a parrot repeating that the testator put his signatures / thumb impression in their presence and that the attestors saw the testator putting thumb impression and that the testator saw the witnesses signing the documents.

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The learned Senior Counsel would further submit that except

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the plaintiff, all the other legal heirs admitted the execution of the settlement deeds and Ex.B.2 – Will, that all other defendants 1 to 3, 5 to 7 and 9 have been supporting the 8^th defendant and that the findings recorded by the trial Court for the non-acceptance of proof of the Will and settlement are erroneous and the trial Court had failed to apply the settled position of law relating to the proof of the Will and settlement, that since the testator died on 03.01.2006, the Hindu Succession Amendment Act 2005 came into force and as such, all the daughters of

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Lakshmi Narayanan through his second wife – defendants 5 to 7 and 9 are also entitled to become coparceners along with the 8^th defendant, as per the judgment of the Hon'ble Supreme Court in Vineeta Sharma's case reported in 2020(9) SCC 1 .

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The learned Senior Counsel would submit that connected O.S.No.31 of 2007 related to two items of properties and it is also admitted that the plaintiff was residing in item 1, though the character of possession is in dispute and in respect of item 4, the plaintiff as P.W.1 had admitted that one year prior to the institution of the suit, the 8^th defendant broke open the lock and took its possession and he was residing there and that the trial Court has erred in allotting 1/10 share in the suit properties and dismissed the suit for bare injunction filed in O.S.No.31 of 2007.

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The learned Counsel for the respondent/plaintiff would submit that though the defendants have taken a stand at the trial that the suit item 6 was said to have been settled by father Lakshmi Narayanan in favour of his daughters under Ex.B.3 dated 27.08.2003, the above settlement deed has not been pleaded by the contesting defendants and for the first time, https://www.mhc.tn.gov.in/judis 16/44

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A.S.(MD)Nos.258 and 259 of 2008

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the same was projected only at the time of giving evidence and hence, the same was disbelieved by the trial Court, that though Exs.B.1 and B.2 are documents requiring compulsory attestation, the execution and attestation have to be proved independently, that D.W.3 has not stated anything about the execution of settlement deed and Will by father Lakshmi Narayanan, that D.W.2 has also not stated anything about the execution and attestation of Exs.B.1 and B.2 as expected by law, that both D.W.2 and D.W.3 have not given any special proof in respect of Exs.B.1 and B.2 as contemplated under Section 63 of the Indian Succession Act, that D.W.2 has also not even identified the signature in documents Exs.B.1 and B.2 and that the above would go to show that Exs.B.1 and B.2 alleged to have been executed by father Lakshmi Narayanan have not been proved in a manner known to law.

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The learned Counsel would further submit that the trial Court has rightly decided that the suit properties are the absolute properties of the Late Lakshmi Narayanan and after his demise, it got devolved upon the plaintiff and the defendants and as such, each of them are entitled to get 1/10 shares and that the trial Court, after coming to a such decision, in prayer paragraph as if the plaintiff is entitled to 1/3 share, but the same

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is wrong and it can only be taken as 1/10 share and that such error is

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nothing but an error on the face of records.

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The learned Counsel would further submit that the 8^th defendant has filed a suit in O.S.No.31 of 2007 against the plaintiff in respect of suit items 1 and 4 for permanent injunction and that since the trial Court has come to a decision that Ex.B.1 settlement deed has not been proved in the manner known to law and has no evidentiary value, rightly negatived the injunction relief and dismissed the suit and that therefore, the common judgment passed in both suits did not warrant any interference and as such, the appeals are liable to be dismissed.

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The points for determination are :

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(1) Whether the learned trial Judge erred in rendering a finding that the properties allotted to S.K.Lakshmi Narayanan under Ex.A.1 partition were his separate properties, despite showing that after the birth of the 8^th defendant, the said properties have acquired the character of joint family properties and the said properties cannot be treated as separate and absolute properties of S.K.Lakshmi Narayanan subsequently?

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A.S.(MD)Nos.258 and 259 of 2008

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(2) When the sale deed in respect of item 24 was standing in the name of the 8^th defendant, whether the trial Court erred in holding that item No.24 was also the separate property of S.K.Lakshmi Narayanan on the ground that the sale deed was not produced by the 8^th defendant and more particularly when the plaintiff and the other defendants have not shown that the said property was owned by Lakshmi Narayanan?

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(3) Whether Ex.B.1 – settlement deed and Ex.B.2 – Will and Ex.B.3 settlement deed alleged to have been executed by S.K.Lakshmi Narayanan are true, valid and are proved in accordance with law?

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(4) Whether the impugned common judgment dated 09.04.2008 made on O.S.No.60 of 2006 and O.S.No.31 of 2007 is liable to be interfered with?

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(4) To what other reliefs, the parties are entitled to?

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Admittedly, the suit items 1 to 20 and some other properties were owned by S.K.Lakshmi Narayanan ancestrally and he entered into a partition with his sons born through his first wife – the plaintiff and the defendants 1 and 2 on 14.11.1969 under Ex.A.1, wherein the father Lakshmi Narayanan was allotted with “A” schedule properties ie., items 1 to 20 of the present suit properties and his three sons were allotted with

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“B”, “C” and “D” schedule properties respectively. The plaintiff has taken a stand that at the time of execution of Ex.A.1 – partiton deed, they have entered into another arrangement wherein the properties allotted to father Lakshmi Narayanan were to be enjoyed by him for his lifetime and after his death, the said properties to be divided among the plaintiff and the defendants 1 and 2. But the plaintiff, in his crossexamination before the trial Court would specifically admit

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brhy;yg;gltpy;iy vd;W brhd;dhy; rhpjhd;.””

¶153

Considering the above admission of the plaintiff, the learned

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trial Judge has rightly rejected the case of the plaintiff with regard to the arrangement that the properties allotted to their father were to be enjoyed by him for his lifetime and after his demise, the said properties to be divided among the plaintiff and the defendants 1 and 2.

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The plaintiff, admittedly, has listed out 24 items of properties

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as the suit properties. According to him, items 21 to 24 were purchased by his father Lakshmi Narayanan from and out of the income derived

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from items 1 to 20 of the suit properties and that therefore, the entire properties are to be treated as joint family properties. But according to the contesting defendants, the properties allotted to their father Lakshmi Narayanan in Ex.A.1 partition were to be treated as separate and absolute properties and after the birth of the 8^th defendant through second wife, the 8^th defendant has become a coparcener and as such, the entire properties have become the properties belonging to the Hindu Joint family consisting of the 8^th defendant and his father Lakshmi Narayanan and that therefore, the plaintiff being a separated and divided son, cannot claim any right or interest in the properties. It is their further case that items 21 to 23 were purchased by Lakshmi Narayanan from his own money and hence, they are his self-acquisitions and that item 24 of the suit properties was purchased by the 8^th defendant and it is his selfacquisition.

¶160

The learned trial Judge has given a finding that items 1 to 20 of the properties allotted to Lakshmi Narayanan in Ex.A.1 partition are to be treated as his separate properties and that since the 8^th defendant has failed to prove that he purchased item 24 of the suit properties and that Lakshmi Narayanan has purchased items 21 to 23, the entire properties –

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items 1 to 24 are to be treated as the separate properties of Lakshmi Narayanan.

¶164

The learned Senior Counsel for the appellants has refered a passage from Mayne's Treatise on Hindu Law and Usage (17^th Edition), wherein it has been stated that a son begotten after partiton will be a coparcener with his father and will take the father's property to the exclusion of his separated brothers after the father's death.

¶165

It is necessary to refer Section 309 in Mulla Hindu Law, 21^st Edition:

¶166

“309. Son begotten as well as born after partition. - A father separating from his sons, may or may not reserve to himself, a share on partition, the rights of a son born as well as begotten after partition are different, depending upon whether the father has or has not reserved a share to himself.

¶167

(1) Where the father has reserved a share to himself, a son who is begotten as well as born after partition, is not entitled to have partition reopened, but in lieu thereof he is entitled, after the father's death, to inherit not only the share allotted to the father on partition, but the whole of the separate

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property of the father, whether acquired by him before or after partition, to the entire exclusion of the separated sons.

¶171

Thus if A has three sons B, C and D and he separates from them all, reserving one-fourth share to himself, and a son F is born to A three years after partition, F will take on A's death, the one-fourth share allotted to A at the partition and also the whole of A's separate property to the entire exclusion of B, C and D. If A has dissipated his share, and leaves no property, F takes nothing. Next, suppose, that A does not separate from all the three sons, but separates from B alone and remains joint with C and D, and F is subsequently born to A. IN this case C, D and F will, on A's death, all take in equal shares of the portion of the joint property allotted to A, C and D at the partition, and also A's separate property, ie., the separate property of A and the portiion of the joint family property allotted to A, C and D at the partition will be divided equally among C, D and the after-born son F. The same principle applies if A separates from B and C, and remains joint with D, and F is subsequently born to A.

¶172

Now see S.8 of the Hindu Succession Act, 1956. Section 8 has now abolished the distinction between a divided son and an undivided son in the matter of inheritance of the father's separate property.

¶173

The rule of Hindu law, that where upon a partition, a share has been allotted to the father, a son begotten or born

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afterwards is not entitled to re-open the partition, applies even when no actual division of the property has taken place and severance of joint status has been effected only by institution of a suit for partition.”

¶177

In the commentaries to Section 8 of the Hindu Succession Act

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in the same Edition, it has been observed that in matters of succession, the Act does not differentiate between a divided son and a son who had remained joint with his father or his father and other coparceners, except in cases falling under S.6 which relates inter alia to the undivided interest of a father in a Mitakshara coparcenary. The separate or self-acquired property of a father will, therefore, devolve by succession upon his heirs specified in Class I of the Schedule including a son who had separated from the father as well as one who had continued to remain joint with the father. It is pertinent to note that under old law, the divided son was not entitled to claim any share in separate or self acquired property of the father where the father after partition had continued to remain joint with his other sons or where he had a son born to him after partition and who was joint with him.

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Considering the legal position above referred, the properties allotted to Lakshmi Narayanan in Ex.A.1 – partition were his separate properties and the moment the 8^th defendant was born to him, the status of his separate properties got changed and attained the character of the coparcenary properties and that therefore, the 8^th defendant by birth, became a sharer. It is not the case of the 8^th defendant that items 21 to 23 were purchased by his father from and out of the income derived from items 1 to 20 subsequent to his birth and as such, the above said 3 items of properties are only to be considered as the separate and self acquisition of the said Lakshmi Narayanan.

¶182

Regarding item 24 of the suit properties, in order to prove that

¶183

the said property is owned by the 8^th defendant, the appellants have produced the copy of the sale deed dated 11.03.1994 and sought to receive the same as additional evidence. As already pointed out, since the sale deed standing in the name of the 8^th defendant has not been produced before the trial Court, the learned trial Judge has come to a decision that item 24 was also purchased by Lakshmi Narayanan and as such, the entire properties including item 24 were the self-acquisition of Lakshmi Narayanan. It is evident from the records that the plaintiff has

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raised an objection that the said sale deed was registered in Sub-Registrar office at Parasala, Kerala State along with another property situated in Parasala and that therefore, the sale deed itself is inadmissible in evidence.

¶187

But the learned Counsel for the appellants would submit that the sale deed was dated 11.03.1994 and whereas the amendment was brought to the Registration Act and Section 28(b) of the Registration Act came into force only from 29.03.1997 and relied on the decision of this Court in D.Vijayalakshmi Vs. V.Hariselvan reported in 2020(3) CTC 438 wherein the learned Judge of this Court has specifically held that prior to the introduction of Section 28(b) of the Registration Act by the Tamil Nadu Registration Amendment Act 19 of 1997, a Registration of a document at Kerala, with reference to properties situate within Tamil Nadu was not per se invalid and unless it is shown that certain circumstances exist to make transaction as one made with fraudulent intention, it cannot be said that such a document be it sale or mortgage is invalid and that therefore, the validity or otherwise of the document would essentially depend on the nature of the transaction and the bona fide nature of the transaction.

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It is not the case of the plaintiff that the sale deed was executed

¶191

with respect to item 24 and fictitious property at Parasala or that the transaction itself was not bonafide. Whatever it is, the 8^th defendant by alleging that the original sale deed was already lost, has only produced registration copy of the sale deed. In the appeal, it is not the specific case of the plaintiff that the sale deed in respect of item 24 of the suit properties stands in the name of Lakshmi Narayanan. It is also not the case of the plaintiff that the said property was purchased by his father in the name of the 8^th defendant. Moreover, such a case could not be put-forth in view of the Benami Transaction (Prohibition) Act.

¶192

Considering the above, this Court has no hesitation to hold that item 24 is the self-acquired property of the 8^th defendant and the same is not available for partition either for the plaintiff or for the other defendants. Hence, there is no need or necessity to receive the registration copy of the sale deed at this point of time and as such, the above petition is liable to be dismissed.

¶193

Now turning to the main defence of the defendants that

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Lakshmi Narayanan during his life time executed a settlement deed dated 27.08.2003 under Ex.B.3 in favour of his daughters in respect of item 6 of the suit properties and that on 27.01.2004, Lakshmi Narayanan has executed a settlement deed under Ex.B.1 in respect of items 1 to 5, 7 and 21 to 23 and a Will under Ex.B.2 (B.26) in respect of items 8 to 20 in favour of the 8^th defendant and that therefore, the 8^th defendant has become the owner of all the suit properties, except item 6 which came to be owned by the daughters of Lakshmi Narayanan.

¶197

It is the specific case of the plaintiff that his father Lakshmi Narayanan, 4 years prior to his death, was not mentally alright and has become unconscious for a period of two years prior to his death and subsequently died on 03.01.2006, that Lakshmi Narayanan was not in a position to execute any document at that time and that the 8^th defendant in collusion with the other defendants have committed forgery and fabricated the documents.

¶198

It is evident from the records that since Ex.B.3 settlement deed dated 27.08.2003 executed by Lakshmi Narayanan in favour his daughters has not been pleaded in the written statement filed by the

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¶201

contesting defendants, the learned trial Judge by observing that the same was projected for the first time at the time of admitting the evidence, disbelieved the same. Regarding Exs.B.1 and B.2, the learned trial Judge, considering the evidence admitted by D.W.2 and D.W.3- the alleged attestors to the said documents, has come to a decision that the defendants have miserably failed to prove the execution and attestation of the said documents. The contesting defendants in an attempt to prove the execution and attestation of Exs.B.2 and B.3 have examined D.W.2 who is none other than the son-in-law of Lakshmi Narayanan and D.W.3 – Lakshmi Narayanan's son-in-law's friend.

¶202

Before entering into further discussion, it is necessary to refer Section 3 of Transfer of Property Act, wherein the word “attested” has been defined

¶203

“ “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature

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of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary “

¶207

No doubt, the above definition is similar to that of definition contained in Indian Succession Act. The very object of getting attestation to a document is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. In the Indian Succession Act 1865, the term “attestation” was explained for valid attestation, where the witness could either be present at the execution of the document or if not possible, he could receive the personal acknowledgement from the executor and then attest it.

¶208

Section 3 of the Transfer of Property Act states that the document to be validly executed by the executant or by any other person directed by the executor to personally acknowledge the attestator of the execution, and as proof of his knowledgement of the attestation, the attestator sign or affix his mark on the instrument in the presence of the executant and that thereby the attestator becomes the 'attesting witness' of https://www.mhc.tn.gov.in/judis 31/44

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the said instrument. In the case of M.N.Abdul Jabbar Sahib Vs.

¶211

H.V.Venkata Sastri and sons and others reported in AIR 1969 SC 1147 , the Hon'ble Apex Court has laid down the essential conditions of a valid attestation and the same are extracted hereunder:

¶212

“The essential conditions of a valid attestation under s. 3 are : (1 ) two or more witnesses. have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. "In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th ed.”

¶213

47. No doubt, Will and settlement are the documents requiring

¶214

compulsory attestation. Section 68 of the Indian Evidence Act contemplates that any document required by law to be attested can be

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used as an evidence and the Court adjudging the validity of the same can call one of the attested witness for the purpose of proving its execution. But at the same time, if the execution of the deed except the Will, is not specifically denied, there is no need to call the attesting witness to prove the same. Now it is necessary to refer the evidence of D.W.2 and in chief examination, he would say

¶218

“mtuhy; gpd;dhy; rk;ghjpj;J fpiuak; thA;fg;gl;l K:d;W brhj;Jf;fisa[k; Brh;j;J ndhk; kw;Wk; capy; K:yk; mth; kfd; rpth$pf;F ghj;jpag;gLj;jp itj;jhh;. mjd;go mth; ghfj;jpw;F fpilj;j 1 Kjy; 5 yf;fr; brhj;ija[k; 7tJ yf;fr; brhj;ija[k; gpd;dh; mth; fpiuak; thA;fpa 3 yf;fr; brhj;Jf;fisa[k; 27.01.2004k; Bjjpapl;l ndhk; brl;oy;bkz;l; gj;jpuk; K:yk; rpth$pf;F ghj;jpag;gLj;jp brhj;Jf;fis xg;gilj;J tpl;lhh;. md;Bw (27.1.2004) capy; gj;jpuk; K:yk; mtUf;F 1969 ghfg; gj;jpuj;jpy; fpilj;j 8 Kjy; 20 yf;fr; brhj;Jf;fisa[k; rpth$pf;F ghj;jpag;gLj;jp itj;jhh;. Vw;fdBt 27.08.2003k; Bjjpapl;l ndhk; brl;oy;bkz;l; gj;jpuk; K:yk; vd; khkdhUk; 1969 ghfg;gphptpid gj;jpuk; K:yk; fpilj;j 6tJ yf;fr; brhj;ij mtUila bgz; kf;fshd vd; kidtp Fg;gk;khs; vd;w byl;Rkp, gpughtjp, ne;jpuh, rha; gpurd;dh, c&h ee;jpdp MfpBahh;fSf;Fg; ghj;jpag;gLj;jp itj;J brhj;ija[k;

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xg;gilj;J tpl;lhh;. i& K:d;W MtzA;fSk; vdf;F Kd;dhy;

¶222

Vw;gl;ljhy; ehd; mjpy; rhl;rpf; ifbahg;gk; bra;Js;Bsd;.”

¶223

In cross-examination, he would say

¶224

“ gp.th.rh.M-3Yk; ehd; rhl;rp ifbaGj;J Bghl;Ls;Bs;d. mBj Beuj;jpy; vGjpa nd;bdhU Mtzj;jpYk; ehd; rhl;rp ifbaGj;J Bghl;Bld;. md;iwa BjjpapByBa 6k; nyf;fr; brhj;J jtpu kPjk; cs;s jhthr; brhj;Jf;fs; midj;Jk; rk;ge;jkhf 8k; gpujpthjpf;Fk;, 1k; gpujpthjpf;Fk; brhj;Jf;fs; Bgha; BrUk; tifapy; xU capy; vd; khkdhuhy; vGjg;gl;Ls;sJ. mjpYk ehd; rhl;rp ifbahg;gk; nl;Bld;. gp.th.rh.M.1, 2 nuz;L MtzA;fspyk; ehd; rhl;rp ifbahg;gk; nl;Ls;Bsd;.

¶225

gp.th.rh.M.1 Mtzj;ij vGJtjw;F tptuA;fs; TwpaJ vd; khkdhh;. vd;khkdhh; tptuk; brhy;Yk; BghJ ehDk; nUe;Bjd;. 144gp-tPl;oy; nUe;J g{uhzr;rhhpahh; vd;w gj;jpu vGj;jhplk; tptuA;fis Twpdhh;. 25.1.2004k; Bjjp md;W tptuA;fis Twpdhh;. me;jg; gj;jpuk; vGjpa gpwF me;jg; gj;jpuk; vd;khkdhh; iftrk; te;jJ. me;j gj;jpuj;jpy; rhl;rp ifbahg;gk; nl;lth;fs; gj;jpu vGj;jh; mYtyfj;jpy; itj;J ifbahg;gk; bra;Bjhk;. gj;jpu vGj;jh; mYtyfk; gukf;Fo tl;lhl;rpah; mYtyfj;jpw;F mUfpy; cs;sJ. gjjpuj;jpy; ; ifbahg;gk; BghLk; BghJ rpth$p mA;F te;jpUe;jhh;. ehd; 24.1.2004k; Bjjp md;W gukf;Fo te;Bjd;. gj;jpuk; vGJtjw;fhf kl;Lk; vd;why; BtW fhuzA;fSf;fhft[k; te;jpUf;fyhk;. 4 Mz;Lfs; Mdjhy; jw;BghJ vdf;F qhgfkpy;iy.. ............

¶226

“ vd; khkdhh; mA;F Ml;Blhtpy; te;jhh;. Ehd; rhh;gjpthsh; mYtyfj;jpy; ifbahg;gk; nl;L gj;jpug;gjpt[ Koa[k; nUe;Bjd;. gj;jpug; gjpt[ Koa[k; tiu mYtyfj;jpw;fs; ehd; Bghftpy;iy. ahh; ahh;

¶227

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milahsh; fhl;o rhl;rpahf ifbahg;gk; nl;lhh;fs; vd;w tptuk; vdf;F bjhpa[k;. gp.th.rh.M.1y; 1 Kjy; 8 nyf;fr; brhj;Jf;fs; vd; Ma['Sf;F gpd; mile;J bfhs;s Btz;Lk; vd;W vGjp mjd; gpd; mof;f;gl;Ls;sJ. gp.th.rh.M.1 I vd; khkdhh; vGjpf; bfhLf;ftpy;iy vd;W brhd;dhy; rhpay;y. gp.th.rh.M.26Yk; ehd; rhl;rpf; ifbahg;gk; bra;Js;Bsd;. gp.th.rh.M.26 Mtzj;jpw;F tpruk; vA;F itj;J brhy;yg;gl;lJ vd;W bjhpahJ. vd; khkdhuhy; tptuk; brhy;yg;gl;lJ gp.th.rh.M.1y; ifbahg;gk; nl;l rhl;rpffs; midtUBk gp.th.rh.M.26y; rhl;rpfshf ifbahg;gk; nltpy;iy. "

¶230

48. D.W.3 in chief examination would say

¶231

“mjdhy; vd; ez;ghpd; khkdhh; Md v!;.Bf.byl;Rkp ehuhaza;ah; vGjp itf;Fk; ndhk; kw;Wk; capy; gj;jpuA;fspy; rhl;rpf; ifbahg;gk; bra;a nuz;L Kiw Bf.Mh.ehfehjd; miHj;jjpd; Bghpy; ehd; brd;Bwd;.

¶232

nuz;lhtJ jlitahf 27.01.2004 Bjjp Bf.Mh.ehfehjd; miHf;f v!;.Bf.ehuhaza;ah; mtUila kfd; rpth$pf;F vGjp bfhLj;j capy; kw;wk; ndhk; brl;oy;bkd;l; gj;jpuA;fspy; ifbahg;gk; bra;Js;Bsd;. Capypy; ehd; rhl;rpf; ifbahg;gk; bra;J rhh;gjpthsh; mYtyfj;jpy; rhl;rpf; ifbahg;gk; bra;Js;Bsd;. ndhk; brl;oy;bkd;l; gj;jpuj;jpy; rhh;gjpthsh; mYtyfj;jpy; kl;Lk; rhl;rp ifbahg;gk; bra;Js;Bsd;.

¶233

Bkw;brhd;d %d;W gj;jpuA;fSf;Fk; v!;.Bf.byl;Rkpehuhaza;ah; gj;jpuk; vGJtjw;F tptuk; brhd;dhh;. 3 gj;jpuA;fspYk; v!;.Bf.byl;Rkpehuhaza;ah; mth;fs; ifBuif itj;jhh;."”

¶234

In cross-examination, he would say

¶235

“ gp.th.rh.M.1y; ifbahg;gk; BghLtjw;fhf Beuhf rhh;gjpthsh; mYtyfj;jpw;F brd;Bwd;. nuz;L gj;jpuA;fspy; ifbahg;gk;

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bra;Bjd;. ehd;brhy;yf;Toa nuz;L ifbahg;gk; nuz;Lk; gp.th.rh.M.1 kw;Wk; 26y; cs;s ifbahg;gA;fs; nijj; jtpu md;iwa jpdk; rhh;gjpthsh; mYtyfj;jpy; BtW ve;j MtzA;fspYk; ehd; ifbahg;gk; nltpy;iy. gp.th.rh.M.1 kw;Wk; 26y; byl;Rkpehuhazd; vd;gthplk; rhh;gjpthsh; mYtyfj;jpw;F cs; itj;Jjhd; ifBuif thA;fg;gl;lJ. gp.th.rh.M.1 kw;Wk; 26y; fz;l ifBuif KGtJk; rhh;gjpthsh; mYtyfj;jpy; yl;Rkpehuhazdhy; itf;fg;gl;lJ. ifBuif itg;gj;wF rhh;gjpthsh; mYtyj;jpy; nUe;J jhd; nA;F bfhLf;fg;gl;lJ. Bkw;go gj;jpuA;fs; gjpt[ bra;ag;gl;l rkaj;jpy; rpth$p mA;fpUe;jhh;. gp.th.rh.M.1 kw;Wk; 26y; ehd; rhl;rp ifbahg;gk; nl;lij jtpu me;j gj;jpuk; gw;wp kw;w tptuA;fs; vdf;F bjhpahJ. Bkw;go gj;jpuA;fs; vGJtjw;F tptuA;fs; ahuhy; ahhplk; brhy;yg;gl;L vA;F itj;J brhy;yg;gl;lJ, Kj;jpiu jhs;fs; vA;F thA;fg;gl;lJ vA;F jl;lr;R bra;ag;gl;lJ vd;w tptuA;fs; vdf;F bjhpahJ. rhh;gjpthsh; mYtyfj;jpw;F khiy 3.00 kzpf;F Bky; BghBdd;. Ehd; Beuoahf rhh;gjpthsh; mYtyfk; brd;W

¶239

ifbaGj;J nl;Ltpl;L ehd; brd;Wtpl;Bld;. BtW ve;j tptuA;fspYk; ehd; gA;F bfhs;stpy;iy. ifbahg;gk; fhR thA;fhky; Bghl;Bld;. ne;j gj;jpuA;fisj; jtpu ehd; BtW ve;j gj;jpuA;fspYk; rhl;rp ifbahg;gk; nltpy;iy. gj;jpuk; vGjpath; mYtyfj;jpy; itj;J xU ifbahg;gk; nl;Bld;. rpth$p capypy; ifbahg;gk; nl;Bld. gp.th.rh.M.26 jhd; me;j capy;. gukf;Fo ePjpkd;wj;jpy; nJtiu ehd; ve;j tHf;fpYk; rhl;rp brhy;ytpy;iy. byl;Rkpehuhazd; MtzA;fspy; ifBuif itg;gjw;F 2, 2 ehs;fSf;F Kd;g[ filrpahf ehd; ghh;j;Bjd;. ”

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¶242

Since the learned Senior Counsel for the appellants would contend that the entire evidence have to be considered for ascertaining as to whether the witnesses have deposed about the execution and attestation of documents, this Court is constrained to refer the above evidence of D.W.2 and D.W.3 in extenso for better appreciation. The learned Senior Counsel for the appellants has relied on the judgment of the Hon'ble Supreme Court in Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta reported in AIR 1955 SC 363 , wherein the witnesses P.W.1 and P.W.2 did not say that they signed the Will in the presence of the testator and hence, it was contended that in the absence of such evidence, it must be held that there was no due attestation, the Hon'ble Apex Court by observing that the learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation.

¶243

The learned Senior Counsel for the appellants has relied on the

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judgment of this Court in Maria Stella and others Vs. T.Joseph Catherine and others reported in (2002)3 MLJ 111 , wherein it has been held that it is not necessary that the witnesses to speak like a parrot repeating that the testator put his signature/thumb impression in their presence and that the testator putting the thumb impression and that the testator saw the witnesses signing the settlement deed / will.

¶247

But in the case on hand, on perusing the evidence of D.W.2 and D.W.3, it is clearly evident that both of them have not adduced any clear evidence about the execution and attestation of the documents under Exs.B.1 and B.2. As rightly contended by the learned Counsel for the respondent – plaintiff, there is absolutely no evidence to show as to where and at what time Exs.B.1 and B.2 were prepared and executed and who were present at that time. Moreover, the contesting defendants have not offered any reason or explanation as to why two different category of documents, settlement and Will, were executed on the same day by Lakshmi Narayanan and both in favour of the 8^th defendant. Even according to the contesting defendants, Lakshmi Narayanan used to sign in English, but in the disputed documents, he has subscribed his thumb impressions. No doubt, according to the parties, he was aged about 84

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years at that time. As rightly contended by the learned Counsel for the respondents, though they have taken a plea that Lakshmi Narayanan was not in a position to execute any document and that forged and fabricated documents were created, the contesting defendants have not taken any steps to show that the thumb impressions found in the disputed documents are that of Lakshmi Narayanan.

¶251

Considering the entire evidence available on record, the finding of the trial Court that the contesting defendants have failed to prove the execution and attestation of Exs.B.1 and B.2 cannot be found fault with and this Court is in entire agreement with the said findings.

¶252

No doubt, this Court has already decided that items 1 to 20 allotted to Lakshmi Narayanan in Ex.A.1 partition, after the birth of the 8^th defendant, has become the coparcenary properties. The learned Senior Counsel for the appellants would submit that Lakshmi Narayanan died on 03.01.2006. But the Hindu Succession Amendment Act 2005 came into force on 09.09.2005 and as per the substituted section 6 of the said Act, if a daughter is alive on the date of enforcement of amendment Act 2005, she becomes a coparcener with effect from the date of

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amendment irrespective of whether she was born before the said amendment. As rightly contended by the learned Senior Counsel for the appellants, the substituted Section 6 of the Hindu Succession Act confers status of a coparcener on a daughter born before or after the amendment in the same manner as son with the same rights and liabilities.

¶256

In the case on hand, the defendants 5 to 7 and 9 are the daughters of Lakshmi Narayanan through his second wife - 4^th defendant and in view of the amendment Act 2005, they have also become the coparceners along with the 8^th defendant as on 09.09.2005, the date on which the amendment Act came into force.

¶257

Considering the above, as rightly contended by the learned Senior Counsel for the appellants, if a notional partition takes place on the death of Lakshmi Narayanan, the defendants 5 to 9 along with their father Lakshmi Narayanan are entitled to get 1/6^th share in items 1 to 20 of the suit properties. As per Section 8 of the Hindu Succession Act, the plaintiff and all the defendants are entitled to get 1/10^th share in the 1/6^th share of Lakshmi Narayanan and as such, the plaintiff is entitled to 1/60 shares in items 1 to 20 of the suit properties. But the trial Court, without

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considering the above legal position in proper perspective has mechanically recorded a finding that the entire properties are the separate properties of Lakshmi Narayanan and allotted 1/10^th share to the plaintiff and as such the same is liable to be set aside. As already pointed out, items 21 to 23 are the separate and self – acquired properties of Lakshmi Narayanan and as per Section 8 of the Hindu Succession Act, the plaintiffs and all the defendants are entitled to get 1/10^th share each.

¶261

The learned trial Judge, by observing that the 8^th defendant has not proved that two items of properties shown in O.S.No.31 of 2007 were owned by him exclusively and that since the finding has already been given that the settlement deed through which the 8^th defendant was claiming those properties was not proved and that the remedy open to the 8^th defendant is to file a suit for partition and not to claim permanent injunction in respect of the entire properties, dismissed the suit. Considering the evidence available on record, the finding of the trial Court dismissing the suit for bare injunction cannot be found fault with. Considering the other facts and circumstances and also the relationship between the parties, this Court further decides that the parties are to be

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directed to bear their own costs and the above points are answered accordingly.

¶265

In the result, the Appeal Suit in A.S.(MD)No.258 of 2008 is partly allowed and the judgment and the decree of the trial Court granting 1/10^th share in items 1 to 24 of the suit properties is set aside and the preliminary is passed declaring that the plaintiff is to get 1/60 share in items 1 to 20 of the suit properties and 1/10 share in items 21 to 23 of the suit properties. C.M.P.(MD)No.4237 of 2019 is dismissed. The Appeal Suit in A.S.(MD)No.259 of 2008 is dismissed. The parties are directed to bear their own costs.

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19.10.2023

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NCC : Yes : No Index : Yes : No Internet : Yes : No

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SSL

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