Allowed

Chinnamma (Died) v. Govindammal

Madras HC4 Dec 2024SA/986/2022

Case brief

AI extract

What is this about?

Second appeal by defendants against appellate court's reversal decree granting plaintiffs 2/3 share in partition suit over ancestral properties. Court held release deed showed Ponnia Gounder dealt with his share; plaintiffs slept over 1990 sales; 2005 amendment not retrospective; allowed appeal and restored dismissal of partition suit.

What did the court decide?

Appeal allowed; decree dated 17.02.2022 in A.S.No.80 of 2019 set aside; suit O.S.No.285 of 2012 dismissed with costs; no costs in appeal.

Chinnamma (Died) Vs Govindammal — Partition | Madras HC (2024)

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S.A.No.986 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 04.12.2024

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CORAM:

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THE HONOURABLE MRS.JUSTICE R. HEMALATHA

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S.A.No.986 of 2022

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Chinnamma (Dead) 1. Valliammal 2. Jayamani Kaliappan (dead) 3. Jeganathan 4. Kavitha 5. P.Natarajan ... Appellants ..Vs..

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Govindammal

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Chinnammal ... Respondents

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PRAYER : Second Appeal filed under Section 100 C.P.C., against the decree and judgment dated 17.02.2022 in A.S.No.80 of 2019 on the file of the Principal District Court, Tiruppur, reversing the decree and judgment dated 29.01.2018 in O.S.No.285 of 2012 on the file of the Additional Sub Court, Tiruppur.

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For Appellant : Mr.K.Govi Ganesan For Respondents : Mr.K.Vasanthanayagan

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JUDGMENT

The appellants are the defendants in O.S.No.285 of 2012 on the

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file of the Additional Sub Court, Tiruppur. The respondents/plaintiffs filed the suit for partition of the suit properties into three equal shares and to allot two such shares to them.

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For the sake of convenience, the parties are referred to as per

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their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

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The case of the plaintiffs in a nutshell is as follows :

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The suit properties are the ancestral properties of Ponnia

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Gounder, the father of the plaintiffs. There was a partition between

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Ponnia Gounder and his brother Marappa Gounder in the year 1965 and the partition deed was executed on 23.06.1965 (Ex.A1). The 'A' schedule property mentioned in the partition deed (Ex.A1) was allotted to the share of Ponnia Gounder. Ponnia Gounder sold a portion of the property in

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favour of one Kaliappan, the fourth defendant, through a registered sale deed dated 14.03.1984 (Ex.A2). Subsequently, he executed a release deed

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dated 28.06.1985 (Ex.A3) in respect of his half share in the suit properties in favour of his son Ramasamy for valid consideration. Ponnia Gounder died on 15.12.1985. The plaintiffs and their brother Ramasamy Gounder were in possession and enjoyment of the entire properties. Ramasamy Gounder died intestate on 22.11.2007, leaving behind his legal heirs, defendants 1 to 3. The defendants 5 to 7 are the legal heirs of Rajammal another sister of the plaintiffs. The plaintiffs wanted to have their share divided and therefore they issued a legal notice dated 15.05.2012 (Ex.A5) to the defendants. Since there was no response from the defendants, they have filed the suit seeking for partition of the suit properties.

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The suit was resisted by the defendants on the following

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grounds:

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i. The suit properties are the ancestral properties of Ponnia Gounder.

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ii. The suit properties were partitioned in the year 23.06.1965 between Marappa Gounder and Ponnia Gounder.

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iii. Ponnia Gounder during his lifetime sold a portion of the land

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measuring 2.56 ¾ acres in SF.No.32/1 to the fourth defendant

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through a registered sale deed dated 14.03.1984 (Ex.A2).

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iv. He also executed the registered release deed dated 28.06.1985 (Ex.A3) in respect of the remaining family properties in favour of his son Ramasamy Gounder for valid consideration.

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v. On 05.07.1990, the fourth defendant purchased 1.17 acres in SF.No.4/1 from the legal heirs of late Ramasamy Gounder through a registered sale deed dated 05.07.1990 (Ex.B15).

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vi. The fourth defendant along with his son Jeganathan sold the lands purchased by him under the sale deed dated 05.07.1990 (Ex.B15) to one Natarajan, son of Palanisamy Gounder through a registered sale deed dated 20.10.1993 (Ex.B19).

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vii.The remaining portion of the land in survey number 32/1, which belonged to Ramasamy Gounder was partitioned on 24.02.2012 (Ex.B16) among his legal heirs.

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viii.Thus the plaintiffs do not have any right over the suit properties.

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On the basis of the above pleadings, the trial Court framed

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the following issues :

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"i. Whether the plaintiff is entitled for the relief of partition of the suit property as prayed for ?

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ii. Whether the suit is bad for non-joinder of necessary parties ?

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iii. Whether any properties available for partition after execution of the sale deed dated 14.03.1984 and release deed dated 28.09.1985?

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iv. To what other reliefs ?"

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In the trial Court, the first plaintiff examined herself and

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marked Ex.A1 to Ex.A10. The defendants 3, 5 and 7 examined themselves and marked Ex.B1 to Ex.B33.

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The learned trial court judge after analysing the oral and

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documentary evidence on record, dismissed the suit filed by the plaintiffs,

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vide his decree and judgment dated 29.01.2018, on the following grounds:

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i. It is admitted by the defendants that the properties allotted to the share of Ponnia Gounder was released in favour of his son Ramasamy.

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ii. Prior to the release deed Ponnia Gounder sold certain extent of land in favour of the fourth defendant.

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iii. The recitals of release deed (Ex.A3) shows that Ponnia Gounder

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received a sum of Rs.7,500/- towards consideration from his son

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Ramasamy.

iv. The defendants 1 to 3 have sold the properties belonging to the family in favour of the fourth defendant through a registered sale deed dated 05.07.1990 (Ex.B15).

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v. The fourth defendant in turn executed a sale deed in favour of one Natarajan through a registered sale deed dated 20.10.1993 (Ex.B19).

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vi. All these transactions took place prior to amendment to Section 6 of the Hindu Succession Act, 2005.

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Aggrieved over the decree and judgment passed by the trial court judge, the plaintiffs filed an appeal in A.S.No.80 of 2019 before the Principal District Court, Tiruppur. The learned Principal District Judge, Tiruppur, vide her decree and judgment dated 17.02.2022 reversed the findings recorded by the trial court judge on the ground that the properties in the hands of Ponnia Gounder are self acquired properties and not joint family properties and therefore, the plaintiffs are entitled to get 2/3 share in the suit properties. Aggrieved over the same, the present second appeal

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is filed.

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At the time of admission the following substantial questions

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of law were framed :

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“i. Whether the respondents can claim right under the amendment to the Hindu Succession Act of the Year 2005 in the teeth of the Sale deed Ex.A2 and Release Deed Ex.A3 which were executed much prior to the amendment?

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ii. Whether in a coparcenary property, when a son gets share by birth, that aspect has been properly adjudicated by the First Appellate Court?"

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Heard Mr.K.Govi Ganesan, learned counsel for the

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appellants and Mr.K.Vasanthanayagan, learned counsel for the respondents.

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The plaintiffs, late Ramasamy and late Rajammal are the

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children of one Ponnia Gounder. The defendants 1 to 3 are the legal heirs of Ramasamy Gounder while the defendants 5 to 7 are the legal heirs of Rajammal. It is an admitted fact that the suit properties are the ancestral

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properties of late Ponnia Gounder. Ponnia Gounder during his life time sold certain extent of land which he got through the partition deed dated 23.06.1965 (Ex.A1) in favour of the fourth defendant through a registered sale deed dated 14.03.1984 (Ex.A2). Subsequently, he executed a release deed in respect of his half share in the properties in favour of his son Ramasamy after receiving consideration of Rs.7,500/-. It is relevant to extract the recitals of Ex.A3

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' 1985 Mk; tUlk; $Pd; khjk; ,Ugj;jp vl;L njjpf;F gy;ylk; jhYf;fh ,Ltha; fpuhkk ;

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rPu q;fft[z;ldghisaj;jpy; FoapUf;Fk; brd;dpaft[z;lu ; ;

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kfd; gp/uhkrhkpf;ft[z;lu; Mfpa c q; fSf ;F nkw;go

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jhYhf;fhf ,Ltha; fpuhkk; rPuq;fft[z;ld;ghisaj;jpy ; FoapUf;Fk; bgUkhf;ft[z;lu; kfd; bghd;dpaft[z;lu ; Mfpa ehd; vGjpf; bfhLj;j ghfghj;jpa tpLjiyg;gj;jpuk;/

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,jdoapw; fz;l brhj;Jf;fs; ekf;F gpJuh$;$pj tifapy ; ghj;jpag;gl;Lk; eP vdf;F kfdhd goahYk; ckf;Fk ; vdf;Fk; gpuptpid Vw;glhky; bghJthf ghj;jpag;gl;L eP q;fSk; ehDk; bghJthf mDgtpj;J te;jjpy; vdf;F tnahjpfk; Vw;gl;L rhFgo bra;J mDgtpj;J tu brsfupak ; Vw;glhky; ,Ug;gjhYk; vdf;Fs;s ghf ghj;jpaq;fs ;

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tpLjiy bra;J bfhLf;f ntz;Lbkd;W vd;id eq; P fs ;

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nfl;Lf; bfhz;lgoahYk; ehDk; mjw;F xg;g[f ; bfhz;lgoahYk; ehDk; mjw;F xg;g[f; bfhz;L ,e;j . 00 tpLjiy j!;jhnt$Pf;F gpujpg;gpunah$dkha; U:gha; 7500 VHhapj;jp IEhWk; bgw;Wf; bfhz;ljw;F tptuk; ehd ; Mz;oghisak; Tl;Lwt[ tptrha fld; rq;fj;jpy; fld;fs ; th q;fpa tifapy; nkw;go fld;fs; jPu;f;Fk ; bryt[fSf;fhft[k; ntW Kd; fld; jPu;f;ft[k; jq;fsplk ; Kd;dUk; buhf;fk; bgw;Wf; bfhz;lJ Ugha; 5000/00 IahapuKk; vd; FLk;g bryt[f;Fk; itj;jpa bryt[f;Fk ; itj;jpa bryt[fSf;fhft[k; ,jdoapw; ifbahg;gkpl;l rhl;rpfs; Kd;dpiyapy; buhf;fk; bgw;Wf; bfhz;lJ U:gha ; 2500/00 ,uz;lhapuj;jp IEhWk; Mf tif ,uz;oYk ; nkw;go tpLjiy j!;jhnt$pd; bjhif U:gha; 7500/00 VHhapuj;jp IEhWk; vdf;F bry;yhfp tpl;lgoahy; ,jd ; K:yk; vd; ghf ghj;jpaj;ij tpLjiy bra;J ,Uf;fpnwd;/"

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Mr.K.Govi Ganesan, learned counsel for the appellants

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contended that after execution of the release deed there was no property in the hands of Ponnia Gounder and therefore, the plaintiffs cannot claim any right over the suit properties.

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12.1. On the contrary, the contention of the learned counsel for

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the respondent/plaintiffs is that after the execution of the release deed https://www.mhc.tn.gov.in/judis

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there were lands belonging to Ponnia Gounder as described in the plaint schedule and that the plaintiffs are entitled to get 2/3 share in the suit properties.

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It is pertinent to point out that Ponnia Gounder in the

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release deed dated 28.06.1985 (Ex.A3) has categorically stated that he was enjoying the family properties jointly with Ramasamy Gounder and that he is releasing his share in favour of his son Ramasamy Gounder after receiving consideration of Rs.7,500/-. Based on this release deed, the defendants 1 to 3 had executed a sale deed in favour of the fourth defendant and the fourth defendant in turn had sold the properties in favour of one Natarajan. The relinquishment deed by late Ponnia Gounder in respect of his half share in favour of his son shows that Ponnia Gounder had dealt with his share in the suit properties. The plaintiffs got married long back and they have been living in their matrimonial home. They claim to be in deemed possession as sharers. A bald assertion of constructive possession, shall not suffice in the absence of any document supporting the same. Apart from this, Ramasamy Gounder was in exclusive possession and enjoyment of the entire properties to the

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knowledge of the plaintiffs. After his death, his legal heirs had dealt with the properties. All the sale deeds in favour of third parties were of the year 1990.

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Mr.K.Vasanthanayagan, learned counsel for the respondents

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would contend that there are certain properties in the hands of the legal heirs of Ramasamy Gounder and that a partition deed dated 24.02.2012 (Ex.B16) was executed between the family members leaving the plaintiffs. According to him, the plaintiffs are coparceners by birth. However, it is pertinent to point out that the plaintiffs did not assert their rights even when their ancestral properties were sold by the legal heirs of their brother Ramasamy Gounder and their sister Rajammal in the year 1990. The plaintiffs knew the existence of these sale deeds even at the time of the registration of the sale deeds. It is not their case that they came to know about these sale deeds very recently. The plaintiffs have issued the first legal notice during the year 2012 and they are seeking 2/3 share in the suit properties which include the properties sold in favour of the fourth defendant. They have not sought cancellation of the sale deeds executed in favour of the fourth defendant and Natarajan. Moreover, all

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the sale deeds are much prior to the amendment to Section 6 of the Hindu

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Succession Act, 2005. In the decision of the Hon'ble Supreme Court in Vineeta Sharma vs Rakesh Sharma reported in (2020) 9 SCC it has been held that the Amendment Act, 2005 is not retrospective. Moreover, in the instant case the possession of the properties by Ramasamy Gounder and by his legal heirs after the death of Ramasamy Gounder is in denial of title of the plaintiffs. Their possession is also in hostility to the plaintiffs by exclusion of them. In the circumstances, the plaintiffs cannot claim any share in the suit properties. Therefore, the substantial questions of law 1 and 2 are answered in favour of the appellants.

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15. In the result,

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i. the Second Appeal is allowed. No costs.

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ii. The decree and judgment dated 17.02.2022 in A.S.No.80 of 2019

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on the file of the Principal District Court, Tiruppur, is set aside.

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iii. the suit in O.S.No.285 of 2012 on the file of the Additional Sub

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Court, Tiruppur, is dismissed with costs .

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Index : Yes/No

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04.12.2024

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Internet : Yes/No

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The Principal District Court, Tiruppur.

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The Additional Sub Court, Tiruppur.

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The Section Officer, V.R. Section, High Court, Madras.

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R. HEMALATHA, J.

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S.A.No.986 of 2022

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Chinnamma (Died) v. Govindammal

Case brief

What is this about?

What did the court decide?

Chinnamma (Died) v. Govindammal

Case brief

What is this about?

What did the court decide?

What the court decided

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