Mr.Mohan Vs Mrs.Susila Tharani

PRAYER: First Appeal filed under Section 96 read with Order XLI Rule 1 of Code of Civil Procedure, 1908, praying to set aside the judgment and decree dated 22.12.2017 made in O.S.No.237 of 2005 on the file of Additional District Judge, Chengalpattu and dismiss the Original Suit.

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For Appellants : Mr.R.Bharanidharan for Mr.M.Arunkumar For Respondent-1 : Mr.R.Pavankumar Dhanuka For Respondent-2 : Mr.D.Senthil Kumar For Respondent-3 : Mr.V.Raghavachari Senior Advocate for Mr.E.Senthil Kumar for M/s.Sampath Kumar & Associates A.S.NO.688 OF 2018 Mrs.Sachutha ... Appellant / 2nd Plaintiff Versus 1.Mrs.Vasanti Rama Narayanan 2.Mr.D.Mohan 3.Mr.D.Gurunathan

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4.Mr.D.Bhoopalan 5.Mr.D.Maruthi

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6.Ms.Renuka 7.Ms.D.Selvi 8.Ms.S.Sumathi 9.Minor Rithika 10.Minor Bhoopesh ... Respondnets / (Minors are represented by their mother 2^nd to 11^th Defendants and natural Guardian Mrs.S.Sumathi) 11.Mrs.Susila Tharani ... 11th Respondent / (Appellant No.(1) is transposed as 1st Appellant / Respondent No.11 vide order of this 1st Plaintiff Court dated 16.04.2024 passed in CMP No.8745 of 2024 in A.S.No.688/2018)

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... Respondnets / 2^nd to 11^th Defendants

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PRAYER: First Appeal filed under Section 96 read with Order XLI Rule 1 of Code of Civil Procedure, 1908, praying to set aside the judgment and decree dated 22.12.2017 made in O.S.No.237 of 2005 on the file of Additional District Judge, Chengalpattu and decree the Suit as prayed in the Original Suit.

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For Appellants : Mr.D.Senthil Kumar For Respondent -1 : Mr.V.Raghavachari Senior Advocate for Mr.E.Senthil Kumar for M/s.Sampath Kumar & Associates For Respondents 2 to 10 : Mr.R.Bharanidharan for Mr.M.Arunkumar For Respondent – 11 : Mr.R.Pavankumar Dhanuka

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COMMON JUDGMENT

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R.SAKTHIVEL, J.

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Feeling aggrieved with the judgment and decree dated

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December 22, 2017 passed in O.S.No.237 of 2005 by ‘the Additional

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District Court, Chengalpattu’ (henceforth 'Trial Court'), the plaintiffs therein filed an Appeal Suit in A.S.No.688 of 2018 , and the defendants 3 to 11 therein filed an Appeal Suit in A.S.No.299 of 2018 . Since both the

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Appeal Suits arise out of the same judgment and decree, they are disposed of by this Common Judgment.

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2.For the sake of convenience, henceforth, the parties will be

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referred to as per their array in the suit.

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Case of the Plaintiffs:

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3.The plaintiffs and the first defendant - Devan are sisters and

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brother respectively, born to the couple - Murugan and Kuppammal.

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Murugan died in the year 1974 and Kuppammal died in the year 1995

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leaving behind the plaintiffs and the first defendant (D1) as their legal

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representatives.

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3.1.Item Nos.1, 2, 3, 4, 8 and 9 of the Suit Properties are

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ancestral properties. From the income derived from the above properties,

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Item Nos. 5 to 7 of the Suit Properties were purchased in the name of D1.

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Thus, Item Nos. 1 to 9 of the Suit Properties are all ancestral properties.

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3.2.D1 with a view to defeat and defraud the lawful claim of

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the plaintiffs, tried to create sham and nominal documents in favour of

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second defendant (D2). Hence, the plaintiffs issued a legal notice dated

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March 11, 2005. D1 issued separate reply notices to the plaintiffs on March

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24, 2005 with incorrect particulars. Hence, the plaintiffs filed a Suit for

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partition seeking to divide the Suit Properties into three equal shares and

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allot 2/3 share jointly to the plaintiffs.

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Case of the Defendants:

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4.D1 filed a written statement stating that the Suit properties

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are not ancestral properties of the plaintiffs. Item Nos.5 to 7 of the Suit

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Properties are separate properties of D1. He had purchased Item Nos.5 and

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6 of the Suit Properties vide Sale Deed dated December 2, 1971 and Item

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No.7 of the Suit Properties vide Sale Deed dated December 14, 1962. D1

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sold Item Nos.5 to 7 of the Suit Properties to the second defendant (D2) vide Sale Deeds dated December 15, 1999 and October 12, 2000. Further, Item Nos.3 and 4 of the Suit Properties were sold to one Mr.Shanmugam in the year 2005. Thereafter, the purchaser Shanmugam is in possession and enjoyment of Item Nos.3 and 4 of the Suit Properties.

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4.1.Further, D1 has stated that the plaintiffs had been already

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given properties measuring 47 Cents in Survey No.52/1 , and 31 Cents in

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Survey No.118 of Rajakilpakkam Village under various registered documents. Further, the plaintiffs were permitted to construct a building

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for their own use in the land measuring 12 Cents in Survey No.30 at Rajakilpakkam Village.

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4.2.In short, the case of D1 is that the Suit Properties are not

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ancestral properties and Item Nos. 1 and 3 to 7 of the Suit Properties had

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already been sold. Accordingly, he prayed to dismiss the Suit.

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5.Pending the Suit, D1 – Devan died on December 12, 2012.

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Hence, Defendant Nos.3 to 11 being legal representatives of D1, were

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added as parties and they have filed written statement wherein, they have reiterated the averments of the written statement filed by their father

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Devan (D1).

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6.D2, who is the purchaser of Item Nos.5 to 7 of the Suit

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Properties has filed a written statement stating that Item Nos.5 to 7 of the

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Suit Properties are personal properties of D1. D2 purchased the said properties from D1 vide Sale Deeds dated December 15, 1999 and October 12, 2000. She is the bona fide purchaser for value. After her purchase, the

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revenue records were also mutated in her name. The Suit is barred by

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limitation against the D2. She prayed to dismiss the Suit.

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7.Based on the above pleadings, the Trial Court framed the

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following issues:

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“(i) Whether the plaintiffs are entitled to the relief of partition as prayed for?

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(ii) Is it correct to assert that item nos.5 to 7 are separate properties of first defendant?

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(iii) Whether the Suit properties are joint family properties?

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(iv) Whether the second defendant is the bona fide purchaser for value?

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(v) Whether the first defendant is liable to render the accounts?

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(vi) To what other reliefs?

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Additional issues:

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(i) Whether the plaintiffs were in joint possession and enjoyment of the Suit properties?

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(ii) Whether the Sale Deeds executed by the defendants 1 and 3 in favour of the second defendant are true, valid and binding on the plaintiffs?

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7.1.Thereafter, the Trial Court recast all the issues. The recast

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issues reads as follows:

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i) Whether the plaintiffs are entitled to partition?

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ii) To what other reliefs?

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7.2.At trial, on the side of the plaintiffs, the husband of the

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second plaintiff namely Ponnusamy was examined as P.W.1 and Ex-A.1 to

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Ex-A.7 were marked. On the side of the defendants, the third defendant -

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D.Mohan was examined as D.W.1 and the husband of D2 -

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S.Ramanarayan was examined as D.W.2 and Ex-B.1 to Ex-B.12 were

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marked.

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7.3.The Trial Court, after full trial, held that the Item Nos.5 to

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7 of the Suit Properties are self-acquired properties of D1 and Item No. 1,

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2, 3, 4, 8 and 9 of the Suit Properties are ancestral properties. The Trial

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Court further held that Item Nos.3 and 4 of the Suit Properties were sold to

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one Shanmugam prior to institution of the Original Suit. Hence, the said

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share shall have to be adjusted at the time of final decree by applying the

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principle of equity. Accordingly, the Trial Court dismissed the Suit in

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respect of Item Nos.5 to 7 of the Suit Properties and decreed the Suit in

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respect of Item Nos. 1, 2, 3, 4, 8 and 9 of the Suit Properties and passed a preliminary decree granting 1/6 share each to the plaintiffs in Item Nos. 1,

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2, 3, 4, 8 and 9 of the Suit Properties.

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7.4.Feeling aggrieved with the said decree and judgment, the

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plaintiffs and the defendants preferred these appeals as stated supra .

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Further, the plaintiffs filed a petition in C.M.P.No. 19065 of

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2018 under Order XLI Rule 27 of the Code of Civil Procedure, 1908

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(henceforth 'CPC') praying to receive additional documents.

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9.Pending the appeals, the first plaintiff namely, Susila

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Tharani filed a petition in C.M.P.No. 8745 of 2024 in A.S.No.688 of 2018

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praying to transpose her as 11^th respondent and the same was allowed by

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this Court on April 16, 2024.

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10.Thereafter, the second plaintiff, namely Sachutha, filed a

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petition in C.M.P.SR.No .23810 of 2021 under Order XLI Rule 27 of CPC

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praying to receive some additional documents.

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Arguments:

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11.Mr.D.Senthil Kumar, learned counsel for the second

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plaintiff argued that the common ancestor - Murugan died in the year 1974

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and his wife - Kuppammal died in the year 1995. The plaintiffs and the first defendant are daughters and son respectively of the couple - Murugan and Kuppammal. The said couple had ancestral properties and they were doing agriculture. D1 had no independent income other than the income derived from agriculture. The common ancestor - Murugan purchased the property in the name of D1 for the benefit of the joint family. Hence, the Suit Properties are all joint family properties.

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11.1. He further submitted that the plaintiffs being co-parcen-

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ers by birth, are each entitled to equal share along with D1. However, the

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Trial Court miserably failed to appreciate the evidence properly and con-

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cluded that Item Nos.5 to 7 of the Suit Properties are self-acquired proper-

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ties of D1 and accordingly, dismissed the Suit qua Item Nos.5 to 7 of the

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Suit Properties. Further, the Trial Court has erroneously decided that since Murugan died in the year 1974, the plaintiffs are not co-parceners as per the Hindu Succession Act, 1956 (henceforth ‘H.S. Act’) as amended by

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‘the Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005)’ (henceforth ‘2005 H.S. Amendment Act’). Accordingly, he prayed to allow the appeal in A.S.No.688 of 2018 .

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11.2.Further submitted that, the second plaintiff was initially

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not aware of the documents sought, by her, to be received in C.M.P.SR.No.23810 of 2021. The said documents are registered / public

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documents. To decide the dispute between the parties, the said documents are vital. Accordingly, he prayed to allow C.M.P.SR.No.23810 of 2021.

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12.Mr.V.Raghavachari, learned Senior Counsel appearing for

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D2 argued that Item Nos.5 to 7 of the Suit Properties were self-acquired

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properties in the hands of D1. They were purchased by D1 vide Ex-A.2 :

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Ex-B.2 and Ex-A.3 : Ex-B.3. Then, on December 15, 1999 under Ex-B.5,

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and on October 12, 2000 under Ex-B.6, D2 purchased Item Nos.5 to 7

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from D1 for valuable consideration. Hence, he is a bona fide purchaser for

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value. He prayed to dismiss the appeal in A.S.No.688 of 2018 .

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12.1.Further submitted that there was no joint family nucleus,

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plaintiffs have not proved the existence of joint family properties and surplus income therefrom to purchase other Suit properties. Further argued

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that there was no presumption in law that a property purchased in the name

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of a member of a joint family had ipso-facto the character of Joint Hindu

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Family property unless it could be shown that the family possessed a nucleus for the purchase of the same. In the absence of proof for the said

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facts, the item nos.5 to 7 of the Suit properties are self-acquired properties

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of D1. The learned Senior Counsel submitted the following case laws in

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support of his submissions:

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(i) Division Bench judgment of this Court in A.Bhadra Chetty @ A.B.S. Kumar and Another Vs.

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Shanmugam and Others [2024 (1) L.W.389]

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(ii) Division Bench judgment of this Court

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in Rajendran & Another Vs. Radhakrishnan & Others [2023 (5) L.W.1]

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(iii) Judgment of the Hon'ble Supreme Court

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in Makhan Singh (D) by LRs. Vs. Kulwant Singh [2007 (3) L.W.475]

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(iv) Division Bench judgment of this Court in R.Deivanai Ammal and Another Vs. G.Meenakshi

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Ammal and Others [AIR 2004 MADRAS 529]

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(v) Judgment of this Court in

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K.V.Ramasamy Vs. K.V.Raghavan and 3 Others [2009 (4) CTC 440]

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(vi) Judgment of this Court in Renuga and Another Vs. K.G.Chandran and Another [2015 (3) CTC 129]

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(vii) Judgment of the Hon'ble Supreme Court in Bhagwat Sharan (Dead) thr. LRs. Vs. Purushottam and Others [2020 (3) CTC 111]

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(viii) Division Bench judgment of this Court

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in S.M.Sivaswami Vs. Nagammal and 5 Others [2011 (1) CTC 337]

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(ix) Judgment of this Court in Veerappan and

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Others Vs. Cauvery and Others [2019 (3) CTC 687]

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(x) Division Bench judgment of this Court in K.S.Ananthanarayanan Vs. S.Vaidy and Others [2004 (4) CTC 424]

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(xi) Judgment of this Court in Murugaiyan and 2 Others Vs. Subbaiyan [2001 (3) CTC 393]

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(xii) Division Bench judgment of this Court

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in Sri Chandru and Another Vs. K.Nagarajan and Others [2012 (3) CTC 785]

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(xiii) Judgment of the Hon'ble Supreme Court in Raghubanchmani Prasad Narain Singh Vs. Ambica Prasad Singh [AIR 1971 SC 776]

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(xiv) Division Bench judgment of the Karnataka High Court in T.S.Subbaraju Vs. T.A.Shivarama Setty and Others [AIR 2004 KARNATAKA 479]

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12.2.Further submitted that, the Sale Deeds were executed

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way before December 20, 2004 and hence, they are saved by the proviso

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under sub-section (1) of Section 6 of the H.S. Act as amended by 2005

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H.S. Amendment Act. Further, even if the Court comes to the conclusion

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that Item Nos.5 to 7 are ancestral properties, since D1 is the Kartha of the

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joint family, the Sale Deeds are valid and binding on the plaintiffs.

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13.Mr.R.Bharanidharan, learned counsel appearing for the

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Defendant Nos. 3 to 11 argued that Item Nos.5 to 7 of the Suit Properties are separate properties of D1, and D1 had executed a Sale Deed with regard to Item Nos.5 to 7 of the Suit Properties in favour of D2 vide ExB.5 and Ex-B.6. The Trial Court rightly dismissed the Suit qua Item Nos.5

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to 7 of the Suit Properties.

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13.1. He further submitted that Item Nos.3 and 4 of the Suit

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Properties were sold to one Shanmugam. However, the said purchaser was

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not impleaded in this case. Hence, the Trial Court ought to have dismissed

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the Suit qua Item Nos. 3 and 4 of the Suit Properties.

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13.2.Further submitted that, D1 purchased half share (an

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extent of 52 Cents) in Item Nos.1 and 2 of the Suit Properties vide Ex-B.4

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– Sale Deed. Hence, ½ share in Item Nos.1 and 2 of the Suit Properties is

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the self-acquired property of D1, in which, the plaintiffs have no claim at

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all. As regards Item Nos.8 and 9 of the Suit Properties, the plaintiffs are not in possession and enjoyment of the same. D1 constructed a house therein and hence, the plaintiffs are not entitled to seek partition in the said property. The Trial Court ought to have dismissed the Suit in its entirety, instead, the Trial Court erroneously granted decree to the plaintiffs in respect of Item Nos. 1, 2, 3, 4, 8 and 9 of the Suit Properties. Accordingly, he prayed to allow the appeal in A.S.No.299 of 2018 .

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Points for Consideration:

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14.This Court has considered both sides’ submissions and

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perused the evidence available on record. The points that arise for

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consideration in these appeals are as follows:

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(i) Whether the first plaintiff’s application under Order XLI Rule 27 shall be allowed?

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(ii) Whether Item Nos.1 to 4, 8 and 9 of the

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Suit properties are ancestral properties?

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(iii) Whether Item Nos.5 to 7 of the Suit properties are ancestral in character?

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(iv) Whether the plaintiffs are entitled to the benefit of Section 6 of the H.S. Act as amended by 2005 H.S. Amendment Act?

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(v) Whether the plaintiffs are entitled to seek

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partition in Item Nos.5 to 7 of Suit Properties?

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(vi) Whether the Original Suit is bad for nonjoinder of parties?

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(vii) Whether the Trial Court’s judgement and decree is to be interfered with?

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Discussion and Decision:

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Point No.(i) - Whether the first plaintiff’s application under

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Order XLI Rule 27 shall be allowed?

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15.This Court has perused the affidavits filed in support of the

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Civil Miscellaneous Petitions filed under Section XLI Rule 27 of Civil

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Procedure Code and also the documents sought to be received.

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16.The plaintiffs filed a Civil Miscellaneous Petition in

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C.M.P. No.19065 of 2018 praying to receive some additional documents.

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The first document is the Sale Deed dated July 31, 2007 executed by D1 - Devan in favour of G.Shanmugam and two others. Documents 2 and 3 are

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the Encumbrance Certificates relating to the Suit Properties.

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17.Further, in C.M.P.SR.No.23810 of 2021 in A.S.No.299 of

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2018, the second plaintiff has sought to receive four documents. The first

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document is a certified copy of the registered Sale Deed (Document

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No.509 of 1953) executed by one Parthasarathy Naidu and others in favour

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of Murugan, who is the father of plaintiffs and D1. The second document

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is the ‘General Power of Attorney’ (henceforth ‘GPA’) dated June 6, 2005

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granted in favour of Vasanthal, wife of G.Shanmugam, by the defendants

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1, 3 to 9. The third document is the Sale Deed dated July 31, 2007,

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executed pending the Suit. The fourth document is the Encumbrance

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Certificate in respect of Survey Nos.141/4 and 141/5 for a period of 25

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years from January 1, 1987 to January 20, 2011 .

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18.The 4 documents sought to be received in

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C.M.P.SR.No.23810 of 2021 in A.S.No.299 of 2018, includes the 3

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documents sought to be received in C.M.P.No.19065 of 2018 in

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A.S.No.688 of 2018. Since the Registered Sale Deeds and Encumbrance

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Certificates are public documents, this Court is inclined to allow Civil Miscellaneous Petition in C.M.P.SR.No.23810 of 2021 in A.S.No.299 of

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Since C.M.P.SR.No.23810 of 2021 is comprehensive of

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C.M.P.No.19065 of 2018, C.M.P.No.19065 of 2018 shall stand closed. The

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documents in C.M.P.SR.No.23810 of 2021 in A.S.No.299 of 2018 are

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hereby received and marked as tabulated below:

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*S.No.*	*Dated*	*Exhibits*		*Description of documents*
1	1953	Ex-A.8	Certified 1953).	copy of Sale Deed (Document No.509 of
2	06.06.2005	Ex-A.9	Certified	copyof the General Power of Attorney

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*S.No.*	*Dated*	*Exhibits*	*Description of documents*
			executed in favour of Vasanthal, wife of
			G.Shanmugam, by the defendants 1 and 3 to 9
			(Document No.1638 of 2005)
3	31.07.2007	Ex-A.10	Photo copy of the Sale Deed (Document No.7744 of 2007).
4	20.08.2018	Ex-A.11	Photo copy of the Encumbrance Certificate for 25 years in respect ofproperties in S.No.141/4 and 141/5

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Point No.(i) is answered accordingly in favour of the plaintiffs.

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Point No.(ii) - Whether Item Nos.1 to 4, 8 and 9 of the Suit

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properties are ancestral properties?

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19.The plaintiffs side marked Ex-A.1 – Adangal for the Fasli

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years 1370, 1375, 1380, 1383 and 1384 . The said documents show that, an

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extent of 70 Cents in Survey No.3, an extent of 1 Acre 57 Cents in Survey

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No.140 and an extent of 45 Cents in Survey No.118, stands in the name of

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Sangu Vagaiyara. According to the plaintiffs, Sangu is none other than the

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paternal uncle of the plaintiffs. P.W.1 has deposed that one Ponnan is the

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common ancestor and the Ponnan had three sons - Sangu, Palayam and

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Murugan, and one daughter - Varadhammal. P.W.1 is the son of said

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Varadhammal. He married the second plaintiff who is D1’s sister. There is

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no dispute regarding the said relationships. Hence, P.W.1 is a competent

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witness.

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20.D.W.1, son of D1 - Devan, in his evidence has deposed

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that Murugan and his son Devan (D1) were practicing agriculture. Their

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family did not have any other income except agricultural income. D.W.1

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has also admitted that the Item Nos.8 and 9 are ancestral properties. The

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relevant extract is as follows:

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“ . . . gp/th/r/M/4y; brhj;J tptuj;jpy; Fwpg;gplg;gl;Ls;s j';fs; ghf epyj;jpw;F nkw;F“ ” vd;W Fwpg;gplg;gl;oUg;gJ r';fpw;Fk; mtuJ rnfhjuh;fSf;Fk; ,ilna Vw;gl;l

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ghfg;gphptpidiaf; Fwpf;fpwJ vd;W brhd;dhy; rhpjhd;. vd; jhj;jh KUfd; bjhHpy;/ tptrhak;/ Kjy; gp.thjpapd; bjhHpy; tptrhak;/ vd; bjhHpy; tptrhak;. v';fSf;F tptrha bjhHpy; jtpu ntW bjhHpy; fpilahJ. jhth 8 kw;Wk; 9 mapl;l brhj;Jf;fs; g{h;tPf brhj;Jf;fs; vd;W brhd;dhy; rhpjhd;. ,e;j brhj;Jf;fisg; bghUj;J v';fs; FLk;gj;jpy; ghfg;gphptpid Vw;gltpy;iy. jhth 1 Kjy; 4 tiu kw;Wk; 8/ 9 mapl;lr; brhj;Jf;fs; Kjy; gp.thjpapd; g{h;tPf brhj;Jf;fs; vd;Wk;/ me;j

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brhj;Jf;fs; mthpd; jdpg;gl;l brhj;Jf;fs; vd;W ehd; jtWjyhf brhy;fpnwd; vd;Wk; brhd;dhy; rhpay;y. g{h;tPf brhj;Jf;fspy; te;j tUkhdj;ij itj;Jjhd; jhth mapl;lk; 5/ 6/ 7 brhj;Jf;fis Kjy; gp.thjp fpuakhf th';fpdhh; vd;W brhd;dhy; jtW . ghy; tpahghuk; kw;Wk; ML tpahghuk; Mfpaitfspy; ,Ue;J te;j tUkhdj;ij itj;J Kjy; gpujpthjp nkw;brhd;d brhj;Jf;fis th';fpdhh ;. . . ”

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21.Item Nos.8 and 9

¶321

21.1.Item Nos.8 and 9 pertains to Survey No.3. As stated

¶322

supra , D.W.1 (D1’s son) has admitted that Item Nos.8 and 9 of the Suit

¶323

Properties are ancestral properties and Ex-A.1 would also support the same. There is no evidence contrary to it. Hence, this Court concludes that

¶324

Item Nos.8 and 9 were ancestral properties in the hands of the plaintiff’s

¶325

father - Murugan.

¶326

22. Item Nos.1 and 2

¶327

22.1.Item Nos.1 and 2 of Suit Properties pertains to Survey

¶328

Nos.140/1 and 140/3. A conjoint reading of Ex-A.1, Ex-B.4, and the

¶329

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depositions of P.W.1 and D.W.1, would prove that plaintiff’s father -

¶333

Murugan owned ancestral properties in Survey No.140 and that the land

¶334

subsequently purchased by D1 from his paternal uncle’s family – Palayam’s family, is from and out of agricultural income and therefore, is also ancestral in nature. The reasoning is in the following paragraphs.

¶335

22.2.Admittedly, agriculture was the only source of income

¶336

for the joint family consisting of Murugan and his son – D1. Further, Ex-

¶337

A.1 reveals that Survey No.140 is a Nanja land. D.W.1 (D1’s son) has

¶338

deposed that, out of the income from milk vending and sheep rearing, D1 purchased an extent of 52 Cents out of the total 1 Acre 57 Cents in Survey No.140 vide Ex-B.4 - Sale Deed dated September 15, 1980. Milk vending and sheep rearing are closely associated with agricultural land and the income derived therefrom. Traditionally, these activities are considered

¶339

integral to agriculture, as sheep and cows are typically reared on agricultural lands. Hence, this Court is of the view that the said 52 Cents

¶340

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purchased under Ex-B.4 is from and out of the income from the joint

¶344

family property, and therefore, it is ancestral in nature.

¶345

22.3.Ex-B.4 Sale Deed was executed by D1's paternal uncle

¶346

Palayam and his son in favour of D1. In Ex-B.4 – Sale Deed, “j';fSila ghf etirf;F nkw;F ” (on the west of our land / portion)

¶347

has been described as one of the four boundaries for the 52 Cents

¶348

purchased thereby. D.W.1 in his evidence, when he said “j';fSila

¶349

ghf e t irf;F nkw;F” , he denoted the properties allotted to Murugan in

¶350

the partition held between Murugan and his two brothers – Sangu and

¶351

Palayam. Relevant extract of Ex-B.4 is hereunder:

¶352

v';fs; ghfj;jpw;F te;J v';fSila mDnghf

¶353

RthjPdj;jpYk; tUk; ,jdoapy; fz;l et ir epyk; kz; fpzh; cs;gl eh';fs; ehsJ njjpapy; epr;rapj;jJk; j';fSf;F fpiuak ;. . . ”

¶354

(Emphasis supplied)

¶355

Relevant extract of Ex-B.4 – Description of property reads thus:

¶356

“. . . et ir rh;nt 140 g{uh tp!;jPuzk;

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1.57-y; j';fSila etirf;F bjw;F/ v';fSila g[t irf;F tlf;F/ Fwj;jptifauh etirf;Fk; fpHf;F/ v';fSila etirf;Fk; j';fSila ghf et irf;F nkw;F / ,jd; kj;jpapy; 0.52 brz;L nkw;go Ik;gj;jp ,uz;L brz;oy; ,Uf;Fk; kz;/ fpzh; ftiy ghhp cs;gl 1/3 g';F jh';fs; mDgtpj;Jf; bfhs;s ntz;oaJ. . .”

¶361

(Emphasis supplied)

¶362

22.4.Conjoint reading of Ex-B.4 and Ex-A.1 would establish

¶363

that the plaintiff’s father - Murugan had owned ancestral properties in

¶364

Survey No.140. There is absolutely no piece of evidence to suggest

¶365

anything contrary to it.

¶366

22.5.Hence, as stated supra , Item Nos.1 and 2 of Suit

¶367

Properties are ancestral properties.

¶368

23.Item Nos.3 and 4

¶369

23.1.Item Nos.3 and 4 pertains to Survey Nos. 141/4 and

¶370

141/5 . They were purchased by plaintiffs’ father - Murugan under Ex-A.8

¶371

– Sale Deed in the year 1953. In Ex-A.8, Murugan has described himself

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as an agriculturist. There is absolutely no piece of evidence to suggest that

¶376

Murugan had any other source of income than agriculture. Hence, this

¶377

Court is of the view that, the income from the Nanja land in Item Nos.1

¶378

and 2 of the Suit Properties, which are ancestral in nature as stated supra ,

¶379

is the source of income to purchase Item Nos.3 and 4 under Ex-A.8.

¶380

23.2.Further, the Original Suit was filed on June 24, 2005.

¶381

The plaintiffs had issued pre-suit notice dated March 11, 2005 to D1. After receiving the said pre-suit notice, on April 8, 2005, D1 executed Ex-A.4 - Settlement Deed in favour of his son – Mohan (third defendant). Ex-A.4

¶382

was subsequently disowned by D3. Disowning is not a concern for now. In

¶383

Ex-A.4, D1 has stated that Item Nos.4 and 5 of the Suit Properties are

¶384

ancestral properties.

¶385

23.3.Hence, Item Nos.3 and 4 are also ancestral in nature.

¶386

Point No.(ii) is answered accordingly in favour of the plaintiffs and

¶387

against the defendants.

¶388

Point No.(iii) - Whether Item Nos.5 to 7 of the Suit properties

¶389

are ancestral in character?

¶390

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24.Item No.7 is an extent of 19 Cents in Survey No.141/6-B

¶394

which was purchased by D1 vide Ex-A.2 : Ex-B.2 – Sale Deed dated December 14, 1962 for a sum of Rs.100/-. In Ex-A.2 : Ex-B.2, D1 has described himself as an agriculturist.

¶395

24.1.Item Nos.5 and 6 pertains to an extent of 24 Cents in

¶396

Survey No.141/3 and an extent of 19 Cents in Survey No.141/6-A which were purchased by D1, about 10 years after purchasing Item No.7, vide Ex-

¶397

A.3 : Ex-B.3 – Sale Deed dated December 2, 1971 for a sum of Rs.1,470/-.

¶398

The vendor is none other than D1’s paternal uncle - Sangu and his sons.

¶399

24.2.As stated supra , there is ample evidence available on

¶400

record to show the existence of joint family and joint family properties. Plaintiffs' father Murugan and D1 were living under one roof. In Ex-A.1 to Ex-A.8 and Ex-B.1 to Ex-B.6 sufficient reference has been made to

¶401

presume the existence of joint family nucleus. Agriculture is the only

¶402

source of income for the joint family comprising of Murugan and his son -

¶403

D1, and there is no evidence available on record to prove the contrary.

¶404

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Hence, based on the available evidence, D1 could have purchased Item

¶408

Nos.5 to 7 only out of the agricultural income from the 52 Cents Nanja land

¶409

comprised in Survey No.140, which is ancestral in nature as stated supra .

¶410

24.3.Further, as stated above in Paragraph No.23.2., D1 has

¶411

stated in Ex-A.4 that Item Nos.4 and 5 of the Suit Properties are ancestral

¶412

properties.

¶413

24.4. Therefore, Item Nos.5 to 7 of the Suit Properties are

¶414

ancestral in nature.

¶415

Point No.(iii) is answered accordingly in favour of the plaintiffs and

¶416

against the defendants.

¶417

Point Nos.(iv) - Whether the plaintiffs are entitled to the benefit

¶418

of Section 6 of the H.S. Act as amended by 2005 H.S. Amendment Act?

¶419

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25.As held in Point Nos.(ii) and (iii), the Suit Properties are

¶423

all ancestral properties. The plaintiff’s father – Murugan passed away in

¶424

the year 1974 and his mother – Kuppammal passed away in the year 1995.

¶425

The plaintiffs (daughters) and D1 (son) are their only children. There is no dispute regarding the above facts.

¶426

26.The first plaintiff was married off in or about 1953 and the

¶427

second plaintiff was married off in or about 1963. Thus, both the marriages were before the commencement of ‘The Hindu Succession (Tamil Nadu Amendment) Act, 1989 (Act No.1 of 1990) (w.e.f. March 25, 1989)’ (henceforth ‘the H.S. T.N. Amendment Act’). Hence, the plaintiffs are not entitled to benefit of the H.S. T.N. Amendment Act.

¶428

27.Thereafter, H.S. Act was amended whereby Section 6 was

¶429

substituted. As per Section 6 of the H.S. Act as amended by 2005 H.S.

¶430

Amendment Act, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. For ease of

¶431

reference, amended Section 6 (1) is extracted hereunder:

¶432

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“6.Devolution of interest in coparcenary property.—

¶436

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

¶437

(a) by birth become a coparcener in her own right in the same manner as the son;

¶438

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

¶439

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

¶440

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.”

¶441

28.The Hon’ble Supreme Court in Vineetha Sharma’s case

¶442

[Vineetha Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1], has

¶443

held that daughter of coparcener, just like son of coparcener, becomes a

¶444

coparcener at the very moment of their birth; however, the right conferred

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at the very moment of their birth is exercisable prospectively on and form

¶449

the date of commencement of the Section 6 of the H.S. Act as amended by

¶450

2005 H.S. Amendment Act i.e., on and from September 9, 2005 . Relevant

¶451

extract is hereunder:

¶452

“73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively.”

¶453

(Emphasis supplied)

¶454

Hence, the plaintiffs being coparceners, are entitled equal

¶455

share in the ancestral properties along with D1 subject to the provisions

¶456

contained under Section 6 of the H.S. Act as amended by 2005 H.S.

¶457

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Amendment Act.

¶461

Point No.(iv) is answered accordingly in favour of the plaintiffs and

¶462

against the defendants.

¶463

Point No.(v) - Whether the plaintiffs are entitled to seek partition

¶464

in Item Nos.5 to 7 of Suit Properties?

¶465

On December 15, 1999, under Ex-B.5 and on October 12,

¶466

2000, under Ex-B.6, D2 purchased Item Nos.5 to 7 from D1 for a valuable

¶467

consideration. In pursuance of the two Sales, mutations were effected on

¶468

Ex-B.7 – Chitta, Ex - B.8- Adangal, and Ex-B.9 – Computer Patta in the

¶469

name of D2. As rightly argued by the learned Senior Counsel for D2, ExsB.5 and B.6 – Sale Deeds are saved by the proviso under sub-section (1) of

¶470

Section 6 of the H.S. Act as amended by the 2005 H.S. Amendment Act.

¶471

For ease of reference, the said proviso is extracted hereunder:

¶472

“Provided that nothing contained in this sub-section shall affect

¶473

or invalidate any disposition or alienation including any

¶474

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partition or testamentary disposition of property which had taken place before the 20th day of December, 2004”

¶478

30.1. Hence, the plaintiffs are not entitled to seek partition in

¶479

respect of Item Nos.5 to 7 of Suit Properties.

¶480

Point No.(v) is answered accordingly in against of the plaintiffs and in

¶481

favour D2.

¶482

Point No.(vi) - Whether the Suit is bad for non-joinder of parties?

¶483

31.Learned Counsel for defendants 1 and 3 to 11 contended

¶484

that defendants 1 and 3 to 9 executed Ex-A.9 - GPA dated June 6, 2005 in

¶485

respect Item Nos.3 and 4 at Survey Nos.141/4 and 141/5 to one Vasanthal

¶486

wife of Shanmugam. In pursuance of Ex-A.9, GPA holder - Vasanthal executed Ex-A.10 - Sale Deed dated July 31, 2007 in favour of her husband - G.Shanmugam, her son G.S.Babu Kumar and one S.V.Srinivasan.

¶487

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31.1.Further contended that item nos.3 and 4 were sold before

¶491

the date of institution of the Suit. Hence, the purchasers namely

¶492

Shanmugam and Others are necessary parties to the Suit. Since they are not impleaded, the Suit must fail. In Ex-A.9 - GPA and Ex-A.10 - Sale Deed, a reference regarding Ex-A.4 - Settlement Deed has been made that Ex-A.4 had not been acted upon. Further, in Ex-A.9 - GPA and Ex-A.10 - Sale Deed, a reference has been with regard to Ex-A.8 - Sale Deed that Item Nos. 3 and 4 of the Suit Properties were separate properties in the hands of D1’s father – Murugan. In this regard, it is relevant to extract a portion of

¶493

Ex-A.10 – Sale Deed hereunder:

¶494

“fht rpg[uk; khtl;lk;/ jhk;guk; tl;lk;/ bjd; brd;id gjpt[ khtl;lk;/ jhk;guk; Jizg;gjpt[ khtl;lk;/ bek;gh; 174/ ,uh$fPH;ghf;fk; fpuhkj;jpy; etir rh;nt vz; 141/4-y; g{uh tp!;jPuzk; V.0.32 brz;Lk;/ et ir rh;nt vz; 141/ 5 -y; g{uh tp!;jPuzk; V.0.28 brz;Lk;/ Mf bkhj;jk; V.0.60 brz;L epyj;ij v';fspy; 1-tJ egUf;F jfg;gdhUk;/ kw;w egh;fSf;F ghl;ldhUkhd KUfd; mth;fs; 1 g[j;jfk;/ Mtz vz; 509 Mf 1953

¶495

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Mk; Mz;L gy;yhtuk; rhh;gjptfj;jpy; fpuak; bgw;W/ Mz;L mDgtpj;J te;J/ nkw;go KUfd; mth;fs; fhykhdgpwF mtUila nehpil thhprhd 1-tJ egh; bgahpy; 578 bek;gh; gl;lhtha; jhf;fyhfp Mz;L mDgtpj;J te;J/ nkw;go 1-tJ egh; 2-tJ egUf;F 1 g[j;jfk;/ Mtz vz; 3025 Mf 2005 Mk; Mz;L jhk;guk; rhh;gjptfj;jpy; brl;oy;bkz;L gj;jpuk; vGjp gjpt[ bra;Jf;bfhLj;j nghjpYk;/ ,Jehs; tiu eh';fs; Tl;lhf thp tifauhf;fis brYj;jpf;bfhz;L ve;jtpjkhd tpy;y';fj;jpw;Fk; cl;gLj;jhky; Mz;L mDgtpj;J tUfpw brhj;J tptuj;jpy; tpthpj;jg;go cs;s brhj;ij/ nkw;go j';fSf;F Rj;j tpf;fpiuak; bra;j +gha; 6/00/000/- vGj;jhy; +gha; MW yl;rk; kl;Lk; ,d;W njjpapy; j';fsplkpUe;J buhf;fkha; bgw;Wf;bfhz;Ltpl;lgoahYk;/ nkw;go fpiuaj;bjhif v';fs; gw;whfp tpl;lgoahYk;/ moapw;fz;l brhj;J tptuj;jpy; tpthpj;jg;go cs;s brhj;ij ,d;nw j';fs; RthjPdk; bra;J tpl;nlhk;.”

¶499

32.As held supra under Point Nos.(ii) and (iii), all the Suit

¶500

Properties are ancestral properties. The plaintiffs being coparceners are

¶501

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entitled to equal share therein. As stated supra , the proviso under sub-

¶505

section (1) of Section 6 of the H.S. Act as amended by the 2005 H.S. Amendment Act saves any transaction/alienation done before December 20, 2004. It is pertinent to note that Ex-A.9 - GPA is executed on June 6, 2005 i.e., before the commencement of the 2005 H.S. Amendment Act. Further, Ex-A.9 is not power deed coupled with interest. It is only a General Power of Attorney. Merely granting General Power of Attorney does not amount to transfer [ vide Suraj Lamp & Industries (P) Ltd. v.

¶506

State of Haryana reported in (2012) 1 SCC 656 ]. To be noted, the plaintiffs issued Ex-A.5 – Notice to D1 on March 11, 2005. D1 issued ExA.6 and Ex-A.7 - replies on March 24, 2005. Soon after, D1 executed a Settlement Deed (Ex-A.4) in favour of the third defendant on April 8, 2005, which was admittedly not acted upon. Ex-A.9 - GPA was executed on June 6, 2005. Ex-A.10 - Sale Deed was executed on July 31, 2007. Hence, it is not saved by the proviso under sub-section 1 of Section 6 of the H.S. Act as amended by the 2005 H.S. Amendment Act.

¶507

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¶510

33.Moreover, the plaint in the Original Suit has been taken on

¶511

file on June 24, 2005. It is settled law that pending the Suit, if any alienation is done, the said alienation would not affect the rights of the parties to the Suit and said alienation is valid subject to the final judgment of the Court. In this case, Ex-A.10 - Sale Deed was executed during the

¶512

pendency of the Suit, hence, would not affect the rights of the plaintiffs.

¶513

33.1.It is quite obvious that the above transactions were done

¶514

only with a view to defeat and defraud the rights of the plaintiffs over the

¶515

Suit Properties. For the sake of argument, even if the recitals in Ex-A.9 - GPA and Ex-A.10 - Sale Deed are considered as true, the plaintiffs being Class I Legal Heirs of Murugan under Section 8 of the H.S. Act and also

¶516

being Legal Heirs of Kuppammal - wife of the said Murugan - under Section 15 (1) (a) of the H.S. Act, are entitled each 1/3 share. In such a

¶517

scenario, Ex-A.10 - Sale Deed is not valid in respect of the plaintiffs’ 2/3 share.

¶518

33.2. Therefore, pendente lite purchasers are not necessary

¶519

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¶522

parties to the Suit.

¶523

Point No.(vi) is answered accordingly in favour of the plaintiffs and

¶524

against the defendants.

¶525

Point No.(vii) - Whether the Trial Court’s judgement and decree

¶526

is to be interfered with?

¶527

34.The Trial Court has erroneously held that since the

¶528

plaintiffs' father - Murugan passed away in 1974, the plaintiffs are not

¶529

coparceners. In view of Section 6 of the H.S. Act as amended by the 2005

¶530

H.S. Amendment Act, the plaintiffs are coparceners by birth and their right

¶531

is exercisable on and from September 9, 2005 . Since the right in

¶532

coparcenery is by birth, it is not necessary that father co-parcener should

¶533

be alive as on September 9, 2005 vide: para 137.3 of Vineetha Sharma's

¶534

case referred supra. The contra findings recorded by the Trial Court

¶535

deserves to be set aside. Further, the Trial Court held that super-structures

¶536

were constructed by D1 in which the plaintiffs have no right at all. This

¶537

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¶540

finding recorded is not based on any evidence. In this regard, it is apposite

¶541

to state that plaintiffs have stated in the plaint description of properties that

¶542

in item nos.8 and 9, superstructures were constructed. In this regard,

¶543

neither D1 nor D3 to D11 pleaded that D1 has constructed superstructure

¶544

out of his personal / own money. In the absence of plea any amount of oral

¶545

evidence is of no use. Hence, the said finding also deserve to be set aside.

¶546

34.1.There is no quarrel regarding the legal position stated in

¶547

the case laws submitted by the learned Senior Counsel for the second

¶548

defendant. As discussed supra, D.W.1 himself has admitted the factum of

¶549

joint family properties. Hence, the case laws do not support the defendants'

¶550

case.

¶551

Point No.(vii) is answered accordingly in favour of the plaintiffs and

¶552

against the defendants.

¶553

Resultantly, the Appeal Suits in A.S.No.299 of 2018 and

¶554

A.S.No.688 of 2018 are partly allowed and the judgment and decree of

¶555

the Trial Court is modified and the Original Suit is decreed in the

¶556

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¶559

following terms:

¶560

(a) C.M.P.SR.No.23810 of 2021 in A.S.No.299 of 2018 is allowed

¶561

and the documents are received and marked as Ex-A.8 to Ex-A.11.

¶562

(b) The first plaintiff, namely Sushila Tharani, is entitled to 1/3 share

¶563

in Item Nos.1, 2, 3, 4, 8 and 9 of the Suit Properties. Since she was

¶564

transposed as respondent, she shall be entitled to a preliminary decree on payment of Court Fee as per law.

¶565

(c) The second plaintiff, namely Sachutha, is entitled to 1/3 share in

¶566

Item Nos.1, 2, 3, 4, 8 and 9 of the Suit Properties. To that effect, a preliminary decree is passed.

¶567

(d) The plaintiffs are not entitled to seek partition in Item Nos.5, 6

¶568

and 7 of the Suit Properties. Hence, the Suit is dismissed in respect

¶569

of Item Nos.5 to 7 of the Suit Properties.

¶570

(e) The Civil Miscellaneous Petitions in C.M.P.No.7407 of 2018 in

¶571

A.S.No.299 of 2018 and C.M.P.Nos.19063 and 19065 of 2018 in

¶572

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A.S.No.688 of 2018 are closed.

¶576

[R.S.M., J.] [R.S.V., J.]

¶577

02 / 07 / 2024 Index : Yes Internet : Yes Neutral Citation : Yes Speaking Order TK

¶578

LIST OF ADDITIONAL DOCUMENTS MARKED ON THE SIDE OF THE SECOND PLAINTIFF / MRS.SACHUTHA:

¶579

*S.No.*	*Dated*	*Exhibits*	*Description of documents*
1	1953	Ex-A.8	Certified copy of Sale Deed (Document No.509 of 1953)
2	06.06.2005	Ex-A.9	Certified copy of the General Power of Attorney executed in favour of Vasanthal, wife of G.Shanmugam, by the defendants 1 and 3 to 9 (Document No.1638 of 2005)
3	31.07.2007	Ex-A.10	Photo copy of the Sale Deed (Document No.7744 of 2007)
4	20.08.2018	Ex-A.11	Photo copy of the Encumbrance Certificate for 25 years in respect of properties in S.No.141/4 and 141/5