Dismissed

Mrs.Annie Theresa v. Mrs.Josephine Caroline

Madras HC7 Nov 2024CS/529/2014

Case brief

AI extract

What is this about?

The plaintiff sisters sought partition of self-acquired property of their father claiming inheritance. The defendant relied on a registered settlement deed executed by the father in her favor. The court found the deed validly proved and held that the property was disposed of inter vivos, not devolving by succession. The suit was dismissed as the plaintiff had no title to claim partition.

What did the court decide?

Suit dismissed; no costs.

Mrs.Annie Theresa Vs Mrs.Josephine Caroline — Partition | Madras HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 07.11.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

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C.S.No.529 of 2014

Mrs. Annie Theresa

.... Plaintiff

Vs.

Mrs. Josephine Caroline ...Defendant

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Prayer :- Civil Suit filed under Order IV Rule 1 of O.S. Rules read with Order VII Rule 1 of the Civil Procedure Code praying for a judgment and decree for the following reliefs-

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a) For partition of the plaint schedule property into two equal shares by metes and bounds and put the plaintiff in separate possession of her one half share of the Plaint schedule property, and

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b) for the cost of the suit.

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For Plaintiff : Mr.K. Sukumaran

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For Defendant : Mr.K. Kumar

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J U D G M E N T

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This Civil Suit has been filed, seeking the relief as prayed

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therein.

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The case of the Plaintiff, as set out, in the plaint is as follows:-

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a).The plaintiff and the defendant are the sisters and they are

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the children born to Mr. A. Chinnaraj and Mrs. Regina Chinnaraj. The

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defendant is the younger sister of the plaintiff. The mother Regina Chinnaraj predeceased the father of the plaintiff and defendant on 29.3.2002. The suit property more fully described in the plaint schedule hereunder absolutely belonged to Mr. A. Chinnaraj, the father of the plaintiff and defendant and he purchased the same out of his own earnings and it was his self acquired property. The father Chinnaraj died intestate on 26.8.2013 leaving behind the plaintiff and the defendant to succeed to his estate namely the suit property and since then the plaintiff and defendant have become joint owners by means of inheritance and succession and they are entitled to one half share each in the suit property. The ground floor of the suit property has been rented out during the life time of the father Chinnaraj and the first floor of the suit property is being occupied by the defendant and the suit property is being in joint possession of the plaintiff

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and the defendant. After the death of father Chinnaraj, the defendant is collecting the rent of Rs.15000/- per month since the death of father Chinnaraj.

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b). After the death of father A. Chinnaraj, the defendant is receiving the rents from the ground floor portion to the tune of Rs. 15,000/per month and she has neglected to pay respective share in the suit property to the plaintiff. In other words on and after the death of Chinnaraj the suit property hereunder is in joint possession and enjoyment of the defendant and the plaintiff, since the Plaintiff is entitled to her half share in the suit property. All the original title documents is in the custody of the defendant after the death of father Chinnaraj, since the Chinnaraj was living with the

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defendant at the time of his death. The defendant has taken undue advantage of the possession of all the original title documents in her custody after the death of Chinnaraj, has resorted to decline orally, the lawful claim of the plaintiff to effect partition and the high handedness and illegal action at the hands of the Defendant has forced the plaintiff to cause a lawyer's notice dated 21.10.2013 to the defendant to effect partition by

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dividing the suit property into equal shares. The defendant sent a reply notice on 30.10.2013 with untenable allegations, to deprive the valuable

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right of the plaintiff, contending inter-alia that the suit property was settled in favour of the defendant by the father Chinnaraj on 29.12.2004; that pursuant to the settlement deed the defendant took over the possession of the property and receiving the rents from the tenant and revenue records were mutated in favour of the defendant and the defendant is paying all the statutory dues and charges in her name as absolute owner of the property.

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c)The father Chinnaraj has not executed any settlement deed as alleged by the defendant and had it been true the defendant would have mentioned the document number in the reply notice and during the life time of the Chinnaraj, Plaintiff being the one of the daughters, was not put on any notice or information with regard to alleged settlement. The settlement deed must have been obtained by means of false representation, force or cheating and the same is not valid in the eye of law. The parents of the

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plaintiff had only one grand daughter, born to the plaintiff and during the life time of mother of plaintiff, she expressed that all jewels belonging to her, weighting about 150 sovereigns will be handed over to her, one and only grand daughter (i.e) daughter of plaintiff and till today the defendant is

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not handing over the jewels. In so far as the jewels weighing about 150 sovereigns, the plaintiff is entitled to one half of the same.

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d).The plaintiff is a widow and her husband died at his age of 42 years and the responsibility of running the family was forced on her and under such circumstances, the plaintiff was working in St. Marys Catholic High School Dubai, between 2008 to 2012. In the first week of July 2012, the plaintiff was informed about the illness of father Chinnaraj. by the defendant who was not in talking terms ever since 1990. On the said information plaintiff rushed to India and she was with the father for the period of one month. The father Chinnaraj regained consciousness and thereafter the plaintiff left for Dubai in August 2012. Even visiting in November 2012 to India, there was no information about any document alleged to have been executed in favour of the defendant herein.

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e). After the death of father Chinnaraj, the plaintiff demanded the

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defendant to know about the devolvement of right over the suit property and for which the defendant replied that she does not know any document executed by the father and thereafter after some time during the conversation, the defendant informed the plaintiff that there is a document and copy will be furnished in a day or two. Since the defendant has not

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furnished the copy of the document, the lawyer's notice was sent to the defendant. Even in the said reply, for the reasons best known to the defendant, the registration number of the document has been deliberately withheld and hence, the document dated 29.12.2004 is not a valid document in the eye of law. Since the Plaintiff being one of the co-owner, is entitled to one half share in the suit property, this Suit has been filed.

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The case of the Defendant, in a nutshell, as set out in the written statement, is as follows:-

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a.The Defendant, at the outset denies all the averments and allegations contained in the Plaint as false and frivolous, except the extent specifically admitted hereunder and puts the Plaintiff to strict proof of the same.

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b. The suit schedule Property was acquired by the father of the Plaintiff and the Defendant Late.A.Chinnaraj from the Tamilnadu Housing Board through Sale Deed dated 19.9.1991 registered as Document No.4788 of 1991, SRO, Anna Nagar and he constructed a residential house in the suit schedule property consisting ground and first floor through his selfearned money and resided in the property by paying all statutory dues in his name. It is denied that the said A.Chinnaraj died intestate and settled the

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suit schedule property in favour of the Defendant vide Settlement Deed dated 29.12.2004 registered as Document No.5368 of 2004, SRO, Anna Nagar. When the property was settled absolutely in favour of the Defendant the question of entitlement of half-share in the suit schedule property by way of inheritance or succession by the Plaintiff does not arise at all. The said Settlement Deed was duly accepted and acted upon by the Defendant during the lifetime of the said Mr.Chinnaraj by mutating all revenue records including Property Tax, Water Tax and Electricity Connection in her name.

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c. She is in absolute possession and enjoyment of the suit schedule property without any hindrance till today. Further, the suit schedule property was not jointly occupied by the Plaintiff and the Defendant and only the Defendant is in absolute possession and enjoyment of the suit schedule property. The Defendant has not taken undue advantage of the possession of original documents in her custody after the death of A.Chinnaraj and further the question of declining oral or lawful claim of the plaintiff to effect partition does not arise at all since the Defendant is the lawful and undisputed owner of the suit schedule property.

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d.The Plaintiff is the elder sister of the Defendant and her marriage with Mr.Philomine Ambrose was an arranged one conducted by

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our parents in a grand manner and after marriage she settled at her matrimonial home at Pondicherry. After marriage she never maintained cordial relationship with either with her parents or with the Defendant. Whenever the Plaintiff visits the parental home at Chennai she demanded money and when her demand is not met she humiliated and disrespected the family members. Even though the Plaintiff humiliated her family members, Mr.Chinnaraj extended all possible help including financial help. Without the help of Mr.Chinnaraj the Plaintiff would not have completed the construction of her house at Pondicherry. Further, the plaintiff sold the property at Pondicherry and spent lavishly and after the demise of Plaintiff's husband, the Plaintiff settled at Dubai without informing A.Chinnaraj. Thereafter, the Plaintiff never contacted her family members. The said A.Chinnaraj was upset and vexed with the bad treatment and ungrateful behaviour of the Plaintiff.

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e. A.Chinnaraj executed the Settlement Deed in favour of the Defendant in appreciation of selfless service rendered by the Defendant at

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his own freewill when he is in sound mind and the execution came to the Defendant's knowledge only after the registration and the Settlement Deed was not executed with false representation or cheating as alleged by the Plaintiff and it is valid under law. After receipt of the Reply Notice the Plaintiff personally visited the Defendant and verified the Settlement Deeds. Further, the mother of the plaintiff and defendant never left any gold ornaments weighing 150 soverigns with a wish to hand over the same to her grand daughter born through the Plaintiff. The Plaintiff took the jewels from her mother during her every visit by making hue and cry under one pretext or other. The said A.Chinnaraj fell ill during the month of July, 2010 and not 2012 as stated by the Plaintiff. The allegations are made with a view create sympathy in the minds of this Hon'ble Court and to get favourable orders. The Plaintiff came to India formally seen her father and left immediately without informing the family members. The Defendant only met all the needs of her father A.Chinnaraj including medical expenses and the Plaintiff never spent single pie for his well being. The Plaintiff not even mingled in the funeral ceremony of A.Chinnaraj and left like a third person.

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f. The Plaintiff came to the suit schedule property on 28.9.2013

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along with her friend Dayavathy and Jacob enquired about the assets left by her late father and the Defendant extended all her help and provided all the details and documents sought by her. This suit is filed with a view to harass the Defendant and her family members and to grab the suit schedule property to continue her lavish lifestyle. The plaintiff is not entitled any share over the suit schedule property as claimed in the suit and the suit is devoid of merits and liable to be dismissed.

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4.On the pleadings of the parties, the following issues were framed in the suit:-

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1.Whether the plaintiff is entitled to one half of the share in the suit property in the absence of the Settlement Deed?

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2.Whether the father of the plaintiff executed the alleged settlement deed, with the knowledge that the document was settlement deed, when the father was in complete control of the defendant?

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3. Whether Late.A. Chinnaraj the father of the plaintiff and defendant died intestate or not?

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4. Whether the above suit filed for partition on the ground inheritance or succession is maintainable when Late. A. Chinnaraj during his life time executed a registered

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settlement deed in favour of the defendant?

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5.Whether the plaintiff property valued the above suit and paid requisite court fees?

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6.Whether the suit schedule property was self- earned property of the Late. A. Chinnaraj?

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7.Whether the defendant accepted and acted upon the settlement deed dated 29.12.2004 executed by Late. A. Chinnaraj?

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8. To what other relief the plaintiff is entitled for?

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To substantiate the respective contentions, P.W.1 was examined

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and Ex.P1 to Ex.P4 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Ex.D1 to Ex.D16 were marked on the side of the defendants.

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6.Heard both sides and perused the material available on records.

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7.The learned counsel for the plaintiff submits that Mr.A.Chinnaraj

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who is the father of the plaintiff and the defendant purchased the suit property out of his own earnings and it was his self acquired property. The father Chinnaraj died intestate on 26.08.2013 leaving behind the plaintiff

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and the defendant to succeed to his estate namely the suit property and

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since then they have become joint owners by means of inheritance and succession and they are entitled to one half share each in the suit property.

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8.It has been further submitted by the learned counsel for the plaintiff that after the death of father A.Chinnaraj, since the suit property is in joint possession and enjoyment of the defendant and the plaintiff, the plaintiff is entitled to her half share in the suit property. Further, as the defendant is receiving the rents from the ground floor portion to the tune of Rs.15,000/- per month, the plaintiff is entitled to one half share in the rental income from the suit property.

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The learned counsel for the plaintiff further submits that during the life time of Mr.Chinnaraj, it was not informed with regard to alleged settlement to the plaintiff. Further, there was no necessity for the Chinnaraj to execute such alleged settlement deed voluntarily. If the suit property is settled in favour of the defendant, she would have mentioned the document number in the reply notice and the same is a bogus document. As the same is not binding on the plaintiff and she is entitled to one half share in the suit property, the defendant cannot claim right to the entire suit property on the basis of the alleged settlement deed while it has

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not been proved in accordance with law.

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10.It has been further submitted by the learned counsel for the plaintiff that the evidence adduced by the defendant through DW2, one of the attestors to Ex.D4 has miserably failed to prove the attestation within the meaning of Section 3 of the Transfer of Property Act. When the Settlement Deed relied on by the defendant has not been proved in

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accordance with law for want of proper attestation as mandated under Section 68 of the Indian Evidence Act and Section 3 and Section 123 of the Transfer of the Property Act. The settlement deed is executed out of love

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and affection and it is a transfer of an immovable property falling under the definition of Gift under Section 123 of the Transfer of the Property Act and the said transfer must be effected by means of a registered document signed by the Settlor and attested by atleast two witnesses. Hence, the plaintiff has right to claim in the suit property by virtue of intestate succession. In support of his argument, he relied on the Judgments reported in 1) 2006 (13) SCC 433, ii) 2021 (2) CTC 431, iii)1969 (1) SCC 573, iv) 2023 (6) CTC 732,v) AIR 1998 MP 1. Thus, he seeks to grant a preliminary decree for partition as prayed for.

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11.The learned counsel for the defendant submits that the defendant has taken possession pursuant to the said Settlement Deed and had produced documentary evidence to prove the same. The Possession of the Defendant is also admitted by the Plaintiff in the Plaint stating that the Defendant has rented out the property and received the rent. Thus the Plaintiff has herself categorically admitted that she is not in the suit property. Further, the settlor was alive for more than 9 years after the execution of Ex.D4 settlement deed dated 29.12.2004. The Settlor had died only on 26.08.2013.

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12.It has been further submitted by the learned counsel for the defendant that the Plaintiff has not specifically denied the execution of the Ex.D4-settlement deed in plaint and also during the Trial. DW2-one of the attesting witness has specifically stated that the Ex.D4 settlement deed was executed in her presence wherein there was not put any questions regarding execution and the physical and mental state of the settlor on the day of execution of Ex.D4 settlement deed. To prove the due execution of the Settlement Deed, DW2-Sheela prabakaran-one of the attesting witness has been examined wherein she has deposed that A. Chinnaraj, the Settlor had requested her to sign as witness in the settlement deed and that her father

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and Settlor-Chinnaraj were colleagues and further deposed that on the day of execution of Ex.D4 settlement deed, A. Chinnaraj, (the settlor), D.W.2 and another witness had went to the Registrar office and after reading the settlement deed prepared by his Advocate, Ex.D4 settlement deed was executed by A.Chinnaraj,-the Settlor. In this regard, the Plaintiff has not cross examined DW2 attesting witness or even made any suggestion that statement of DW2 are false. Thus the evidence of DW2 regarding the execution of D4 settlement Deed remains unchallenged. All the precedents relied by the Plaintiff pertain to proof of execution of Will and not pertaining to execution of Gift deed. Therefore, the same are not applicable to the present case. Hence, he seeks to dismiss the suit.

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Issue No.6:

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On a perusal of the records, it is admitted in the plaint itself that the father of the parties purchased the suit property in his name from the Tamil Nadu Housing Board and registered in Document No.4788 of 1991 on the file of SRO, Anna Nagar out of his own earnings vide Ex.D3. Hence, it was his self acquired property. Accordingly, Issue No.6 is answered.

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Issue Nos.2, 3,4, 5 & 7:

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To prove the settlement Deed, D.W.1 was examined and further, D.W.2 who is one of the attesting witnesses in the Settlement Deed was examined wherein she admitted that she and another witness were present along with the Settlor during the execution of the Settlement Deed and signed in the said Settlement Deed. At that time, the Settlor was in sound and disposing state of mind. Accordingly, Ex.D4-copy of the Settlement Deed has been filed to prove the same.

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Further, the suit property is self acquired property of the Settlor, he has all the right over the suit property to settle in favour of any person as his willing. On perusal of Ex.D4, it is clearly stated that the First Daughter Smt. Anne Philomine who is the plaintiff herein or her heirs has no right over the schedule mentioned property. The Settlor was living with the defendant even after settling the suit property in favour of the defendant in the year 2004 and died in the year 2013. It shows that the Settlor was sound mind and disposing state of mind while executing the Settlement Deed in the year 2004 and the same has been proved by D.W.2. After the execution of the Settlement Deed, all revenue records related to the suit properties have been mutated in the name of the defendant and the

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defendant is paying all the statutory dues and charges in her name as absolute owner of the property. Vide Ex.D5 to Ex.D9 and D13 to D15. Hence, it makes clear that the Settlement Deed was executed with the knowledge of the Settlor and not in complete control of the defendant. Accordingly, Issue No.2 is answered. Since the settlor has settled his property in favour of the defendant and the same is proved by the defendant, the defendant died testate by executing the Settlement Deed. Hence, the suit filed for partition on the ground of inheritance or succession is not maintainable when the Settlor has executed the Settlement Deed in favour of the defendant. Accordingly, Issue No.3 and 4 are decided against the plaintiff. Further, the defendant is in the possession and enjoyment of the suit property by virtue of the Settlement Deed and all revenue records have been mutated in her name, the defendant accepted and acted upon the said settlement Deed executed by the Settlor. Accordingly, Issue No.7 is answered. Even as the plaintiff stated she was in the joint possession and enjoyment the suit property, she has not proved the same any oral and documentary evidence. Further, in the Written Statement, it is clearly stated that the Settlement deed in favour of the defendant. But, on the pretext to

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avoid the Court Fees, the Plaintiff has not taken any steps to amend the prayer of the plaint seeking to declare the Settlement Deed as null and void

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and accordingly, the plaintiff has not paid the proper Court Fees. Thus, Issue No.5 is answered.

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Once the settlement Deed was executed in favour of the defendant since it is self acquired property of the Settlor, the plaintiff has no right seeking for partition in the suit property by inheritance. Hence, the plaintiff is not entitled to one half of the share in the suit property and any other relief. Accordingly, issue Nos.1and 8 are answered.

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In the result, the suit is dismissed. No Costs.

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07.11.2024

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Lbm

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Index : Yes/No Internet: Yes/No Speaking/Non-speaking : Yes/No

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Witnesses examined on the side of the plaintiff and defendant:

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Marketing Manager - MR. T.R. Ramachandran (PW-1)

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Assistant Executive Engineer (A.E.E) – Mrs. K.Ammu (DW-1)

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Exhibits produced on the side of the plaintiff:

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S.No	Exhibits	Description of documents
1.	Ex P1	Copyof the Death Certificate of Regina Chinnaraj.
2.	Ex P2	Copyof the Death Certificate of A.Chinnaraj
3.	Ex P3	Lawyers notice sent bythe Plantiff to the Defendant.
4.	Ex P4	Replysent bythe Defendant to theplaintiff

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Exhibits produced on the side of the defendant:

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S.No	Exhibits	Description of documents
1.	Ex D1	Allotment letter Issued byTNHB to Mr.Chinnaraj.
2.	Ex D2	Sanction of Housing Advance by the Southern Railway
3.	Ex D3	Sale deed executed by TNHB to and in favour of Mr.Chinnaraj in Doc. No.4788 of 1991 SRO Anna Nagar.
4.	Ex D4	Settlement deed executed by Mr.Chinnaraj to and in favour of Smt.C.Caroline the Defendant herein in Doc.No.5368 of 2004 SRO Anna Nagar.
5.	Ex D5	Name Transfer Order Issued by the Corporation of Chennai.
6.	Ex D6	Name Transfer Order Issued bythe TANGEDCO
7.	Ex D7	Extract from permanent Land Register in the name of the Defendant.
8.	Ex D8	Property Tax Demand Card Issued in the Name of Smt. C.Caroline.
9.	Ex D9	Chennai Metropolitan water supply and sewerage Tax demand card issued in the Name of Smt.C.Caroline.
10	Ex D10	Counterfoils issued bythe Bank.
11.	Ex D11	Letter from Chinnaraj Addressed to the Plaintiff with copyof a cheque.

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S.No
12.
13.

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S.No	Exhibits	Description of documents
12.	Ex D12	Invitation Card invitingHouse WarmingFunction
13.	Ex D13	PropertyTax Payment online chart.
14.	Ex D14	Water and Sewerage Tax cum Charges Payment online chart.
15.	Ex D15	ElectricityConsumption Chargespayment Chart.
16.	Ex D16	Photocopy of the Aadhaar Card of Mrs.Sheela Prabhakaran.