High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 04.06.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No.1080 of 1990andC.M.P.Nos.8167 of 1990, 12230 of 1990, 9925, 9926 of 20051.Jayalakshmi(died)2.Gnanambal3. Hariputhri Gounder4. Devaki5. Pushpa6. Malar7. Poovarasi8. Poongodai... Appellants 3 to 8 brought on record as L. Rs of the deceased first appellant vide order of Court dated 6.1.2006 made in C.M.P.Nos.9925 to 9927/2005.... Appellants/PlaintiffsVs.1.Govindammal2.Rukmani3.Muniammal (died)4.Cauvery5.Kala6.Malarvizhi7.Rajagopal Gounder8.Kasiammal9.Anantharaman10.ArulR9 and R10 brought on record as Lrs.of the deceased third respondent vide order of court dated 09.03.2007 made in C.M.P.No.7590 to 7592 of 2005... Respondents/DefendantsPRAYER: First Appeal against the Judgment and decree dated22.02.1990 made in O.S.No.3 of 1988 on the file of the SubordinateJudge, Tindivanam. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.T.Dhanyakumar For Respondents : Mr.R.Subramaniam for Mr.V.Krishnan for R4 to 8 R1 Given up R2 No Appearance R3 (died) Steps takenJ U D G M E N TThe plaintiffs in the Court below are the appellants in thisFirst Appeal. Pending appeal the first appellant died and herlegal representatives have been brought on record as appellants 3to 8. The suit in O.S.No.3 of 1988 was filed dated 13.03.1987 topermit them to file the same as indigent persons and subsequentlyafter the order, it was numbered on 08.01.1988. The suit forpartition and a separate possession of two fifth shares of theplaintiffs in the suit properties, apart from mesne profit ofRs.15,000/-. The suit properties consist of 23 items of Punjalands situated in Pudupakkam Village, Vanoore Taluk, Tindivanam. 2. The first and second plaintiffs are the sisters.Originally, the suit properties belonged to Murugesa Gounder andhis wife Annammal, who are the father and mother of theplaintiffs. The said Murugesa Gounder and Annammal were havingfour daughters, who are the plaintiffs as well as defendants 1 and2 and one son Vengadapathy Gounder who married Machavalli who diedbefore Vengadapathy Gounder. Vengadapathy Gounder died leavingbehind him his four daughters who were defendants 3,4,5 and 6.The third defendant Muniyammal who is the third respondent in theappeal died pending appeal and her husband and son who are thelegal heirs were impleaded as respondents 9 and 10 in the appeal.3. The defendant 7 and 8 were purchasers from defendants 3to 6. According to the plaintiffs all the suit propertiesabsolutely belonged to Murugesa Gounder and he has gifted half ofthe properties by way of settlement to his wife Annammal on16.09.1959 marked as Ex.A.1. Murugesa Gounder died intestate andafter his death all his four sisters and one Vengadapathy Gounderhave divided their share into five parts and enjoyed theirportion. After Murugesa Gounder’s death, his wife Annammal alsodied intestate and therefore, the plaintiffs as well as defendants1 and 2 apart from Vengadapathy Gounder have succeeded equally inher share also. Therefore, the plaintiffs are entitled for 2/5thshare and the first and second defendants for 2/5th share anddefendants 3 to 6 being the legal heirs of Vengadapathy Gounderare entitled for 1/5th share. It is the case of the plaintiffsthat the father Murugesa Gounder died 10 years before the filingof the suit. https://hcservices.ecourts.gov.in/hcservices/

4. According to the plaintiffs their brother VengadapathyGounder also died three years before the filing of the suit. Thefirst and second defendants along with the legal heirs ofVengadapathy Gounder, namely, defendants 3 to 6 have joinedtogether to exclude the plaintiffs from the properties. Theplaintiffs have issued a legal notice on 23.02.1987 for which thedefendants have given reply on 02.03.1987 with untenable grounds.According to the plaintiffs any settlement given to Annammal byMurugesa Gounder on 16.09.1959 is void. Therefore, anydisposition in favour of Vengadapathy Gounder by Annammal cannotbe also valid. It is also denied by the plaintiffs that Annammalhas executed any Will in favour of Vengadapathy Gounder andaccording to the plaintiffs it should be only a forged document. 5. The third defendant filed the written statement, asadopted by defendants 4 to 6 while the first and second defendantsremained exparte. According to the third defendant while therelationship between the parties as stated, are admitted, it isdenied that originally the properties belonged to Murugesa Gounderand his wife Annammal. It is also denied that Murugesa Gounder isthe absolute owner of the properties. It is the case of the thirddefendant that some of the properties were purchased by her fatherVengadapathy Gounder other than the properties which werepurchased by Vengadapathy Gounder only the other properties werebelonging to Murugesa Gounder. While it is true that MurugesaGounder has given a settlement deed in favour of his wifeAnnammal, it is the case of the third defendant that the remainingproperties have been given by Murugesa Gounder to VengadapathyGounder. 6. It is the case of the third defendant that MurugesaGounder has given all the properties received to his share infavour of his wife Annammal on 16.09.1959 and all other propertieswere given by him to Vengadapathy Gounder and Murugesa Gounder wasnot entitled any property for himself. Therefore, according tothe third defendant, since Murugesa Gounder has settled theproperties retained by him in favour of his wife and given theremaining properties in favour of his son Vengadapathy Gounder, itcannot be said that Murugesa Gounder died intestate. It is alsodenied that after Murugesa Gounder’s death the plaintiffs as wellas defendants 1 and 2 and Vengadapathy Gounder have divided theproperties. There was no such partition at any time. It is alsothe specific case of the third defendant that Annmmal diedintestate and all properties which she has obtained by way ofsettlement from her husband, has been given to (late) VengadapathyGounder, namely, her son under a registered Will executed on22.06.1964. Therfore, Annammal has not left any properties ordied intestate. It is also denied that defendants 1 and 2 and the https://hcservices.ecourts.gov.in/hcservices/ other defendants have excluded the plaintiffs. It is also deniedthat the settlement executed by Murugesa Gounder on 16.09.1959 isnot valid. It is also denied that the Will executed by Annammalon 22.06.1964 in favour of Venkadapathy Gounder is a forged one. 7. In the additional written statement filed by the thirddefendant, the third defendant while admitting that 7th and 8thdefendants were the purchasers, it was her case that afterdefendants 3 to 6 have partitioned among themselves on 12.12.1987they have sold item No.14 to the extent of 0.85 and item No.17, 21and 22 to the 7th defendant for a consideration of Rs.32,500/-.Likewise, even before the suit was filed defendants 3 to 6 havesold to 8th defendant item No.11 of the suit properties to theextent of 0.40 cents and he is in possession. Apart from 7th and8th defendants one Kumarasamy has also purchased some of the itemsof the properties. Since the 7th and 8th defendants have enteredinto the shoes of the defendants 3 to 6, the plaintiffs areestopped from questioning the said documents. The 7th and 8thdefendants have filed written statement stating that they are thebonafide purchaser for valuable consideration without notice ofdefective title. It is with the above pleadings, the parties wentto trial. On the side of the plaintiffs, the first plaintiff wasexamined as P.W.1 apart from another witness P.W.2 and sixdocuments marked as Ex.A.1 to A.6. Likewise, on the side of thedefendants, the third defendant was examined as D.W.1 and seventhdefendant was examined as D.W.4, apart from four other witnessesexamined as D.W.2, D.W.3, D.W.5 and D.W.6 and on the defendant’sside 39 documents were marked as Ex.B.1 to B.39. 8. The Trial Court has framed the following issues:1) Whether the plaintiffs have any share in the property and if sowhat is the extent? 2) Whether the plaintiffs are entitled for the past mesne profitof Rs.15,000/-?3) Whether the stand taken by the defendants that the suitproperties were exclusively belonging to Murugesa Gounder andVengadapathy Gounder by purchase is correct/? 4) Whether the Will stated to have been executed on 22.06.1964 byAnnammal in favour of Vengadapathy Gounder is true and valid?5) Whether it is true that the plaintiffs are not entitled for anyshare as contended by the defendants? In addition to the above issues two more additional issues wereframed, namely, 1) Since the defendants 3 to 6 have enjoying the properties formore than 20 years, the suit is barred by limitation. 2) Whether 7th and 8th defendants are bonafide purchasers withoutnotice of defective title. https://hcservices.ecourts.gov.in/hcservices/

9. The Trial Court having found that the plaintiffs havefailed to prove that the suit properties are the joint familyproperties and Murugesa Gounder has got these propertiesancestrally and having relied upon Ex.A.6 sale deed dated04.12.1961 executed by Vengadapathy Gounder in favour of oneViswanatha Gounder is forming part of the settlement executed byMurugesa Gounder in favour of Annammal, copy of which was markedas Ex.A.1, the original marked as Ex.B.7 and also relying uponEx.B.9 to B.16 under which the Vengadapathy Gounder has obtainedproperties under registered sale deeds, which cannot be added forpartition and therefore, the plaintiffs are not certain about theproperties and nature of rights which they are having and havingcome to a conclusion that on evidence it is proved that there hasalready been a partition by which Murugesa Gounder who has givenproperties in favour of his wife Annammal and the remainingproperties were given to Vengadapathy Gounder and also onappreciation of evidence has dismissed the suit. It was asagainst the said dismissal the plaintiffs have filed the presentappeal. 10. I have heard the learned counsel for the appellants aswell as the respondents and also perused the entire records. Thepoints for consideration which arise in this appeal is as towhether the judgement and decree of the Trial Court in dismissingthe suit for partition filed by the plaintiffs is sustainable inlaw and on facts. An analysis of evidence shows that MurugesaGounder, the father of the plaintiff died three years afterexecution of Ex.A.1 dated 16.09.1959, therefore, the said MurugesaGounder should have died in the year 1962. The case of theplaintiffs is that while the entire suit properties originallybelonged to Murugesa Gounder and Murugesa Gounder has settled 1/2of the said properties in favour of Annammal under a settlementdeed dated 16.05.1959 marked as Ex.A.1 and in respect of theremaining 1/2 share Murugesa Gounder died without division andafterwards the plaintiffs as well as defendants 1 and 2 andVengadapathy Gounder have divided among themselves and enjoyingeach 1/5th share from 1/2 share of their father. However, it isseen as correctly found by the Trial Court that the firstplaintiff who was examined as P.W.1 has specifically admitted thatthere was no partition after the death of the father sinceadmittedly the father Murugesa Gounder died 30 years before andmother Annammal died 20 years before. The relevant portion of theevidence of P.W.1 is as follows: https://hcservices.ecourts.gov.in/hcservices/ "vd; je;ij ,we;j gpwF. brhj;ij vd; mz;zhh;jhd; mDgtpj;Jte;jhh; vd;why; rhpay;y/ Mdhy; ehd; ghfk;gphpj;Jbfhs;stpy;iy/ vd; je;ij ,we;J 30 tUlk; ,Uf;fk;vd;why; rhp/ mjd; gpwF vd; mz;zhh; jdpg;gl;l Kiwapy;fpuak; th';fpdhh; vd;gJ jtW/ vd; jha; ,we;J 20 tUlk; ,Uf;Fk; vd;why; rhp/"11. Therefore, as correctly found by the Trial Court theevidence of P.W.1 is contrary to the pleadings. Further, theP.W.1 first plaintiff herself is not certain as to what are theproperties which belonged to Murugesa Gounder and what are theproperties purchased individually by Vengadasamy Gounder. Therelevant portion of the evidence in this regard of P.W.1 is asfollows: "g{h;tPf brhj;J vt;tst[ vd;Wk;. jdpg;gl;l Kiwapy; th';fpabrhj;J vt;tst[ vd;W brhy;y KoahJ vd;why; rhp/ vf;!;/V/6fpuak; gw;wp tHf;F nghl;l gpwF jhd; vdf;F bjhpa[k;/ mijmth; jdpg;gl;l Kiwapy; jhd; bfhLj;jhh;/"12. Admittedly, the said properties which are the subjectmatter of Ex.A.6 also been included as one of the items of thesuit properties. On appreciation of this evidence the Trial Courthas come to a definite conclusion that the plaintiffs have notproved that there was a partition among the plaintiffs, first andsecond defendant and Vengadapathy Gounder in respect of 1/2 shareretained by his father Murugesa Gounder. It is specificallyadmitted by P.W.1 in her evidence that during the lifetime ofVengadapathy Gounder the plaintiffs have not asked for anypartition. The one other witness examined on the side of theplaintiffs namely P.W.2 is also not able to substantiate the claimof the plaintiffs that there was a partition among the plaintiffsand defendants 1 and 2 legal heirs of Vengadapathy Gounder afterdeath of their father. A reference to the evidence of P.W.2 showsthat he is unable to give any particulars even about theproperties owned by Murugesa Gounder. 13. The Trial Court has also found that the documents markedas Ex.B.9 to B.16, which are all after 1968, namely, after thedeath of Murugesa Gounder and those properties were purchased byVengadapathy Gounder in his name. The Trial Court having foundthat when those properties are standing in the name ofVengadapathy Gounder they were also included as suit propertiesfor the purpose of partition has also correctly come to theconclusion that the plaintiffs are not aware of the propertieswhich belong to joint family. A reference to Ex.A.6 sale deed by https://hcservices.ecourts.gov.in/hcservices/ which the said Vengadapathy Gounder has sold a portion of theproperty on 04.12.1961 to Viswanatha Gounder shows thatVengadapathy Gouder had sold the properties treating it as his ownself acquired properties even during lifetime of his fatherMurugesa Gounder who has admittedly died three years after theexecution of Ex.A.1 and that should be around 1962. 14. As far as the remaining 1/2 properties of share isconcerned which was given by Murugesa Gounder in favour of hiswife Annammal by way of settlement under Ex.A.1 dated 16.09.1959,it has been the defendants’ case that the said Annammal hasexecuted a Will in favour of her son Vengadapathy Gounder on22.06.1964 giving away the properties given to her by her husbandunder Ex.A.1 to her only son Vengadapathy Gounder. It is the saidWill was marked as Ex.B.8 and to prove the execution of the saidWill the defendants have examined two attesting witnesses, namely,D.W.2 and D.W.3. A reference to the evidence of the saidwitnesses certainly prove that not only the said will was aregistered Will and the witnesses have seen the testator puttingher thumb impression and on appreciation of the said evidence theTrial Court has correctly come to a conclusion that the WillEx.B.8 has been proved in the manner known to law and therefore,Vengadapathy Gounder has become the owner of the properties givento his mother Annammal, apart from the other properties retainedby his father Murugesa Gounder. In fact while deciding about theadditional issue, the Trial Court has correctly come to aconclusion that more than 20 years defendants 3 to 6 have been inenjoyment of the properties and the plaintiffs have never raisedobjection and that would amount ouster and in view of the same thesuit filed by the plaintiffs are barred by limitation. Ascorrectly pointed by the learned counsel for the respondents, itis clear that the plaintiffs have not proved that the MurugesaGounder has retained 1/2 of the properties and they were dividedby plaintiffs, defendants 1 and 2 and Vengadapathy Gounder. It isrelevant to point out that when the plaintiffs case itself is thatMurugesa Gounder has settled 1/2 of his properties in favour ofhis wife Annammal. Even all these properties have been includedin the suit Schedule. 15. That apart, it is clear that the evidence of P.W.1 isnot certain about the properties, apart from the fact that theproperties which are standing in the name of Vengadapathy Gounderwhich were purchased by him after the death of his father MurugesaGounder and sold by him to third parties have also been included.Again the Trial Court has found that Ex.B.8 Will executed byAnnammal in favour of Vengadapathy Gounder has been proved in themanner known to law and there is absolutely no substance in thecontention of the plaintiffs and on the other hand, the judgementof the Trial Court is based on sound reasoning and not perverse. https://hcservices.ecourts.gov.in/hcservices/ The submission made by the learned counsel for the appellant basedon the Hindu Succession (Amendment) Act, 2005 that by virtue ofthe amendment the daughter of a coparcenary family is alsoentitled in her own right in the same manner as son, has norelevance for the reason that the said central amendment which hascome into effect from 09.09.2005 which is prospective as it isheld by the Hon’ble Supreme Court in Sheela Devi and others Vs.Lal Chand and another reported in 2006(8) SCC 581 and therefore,the amendment is not applicable as far as the facts andcircumstances of the present case. 16. In view of the above said legal position and factualcircumstances, I am of the considered view that the Trial Courthas correctly analysed the documents and evidence in their properperspective and has come to a correct conclusion by dismissing thesuit. In view of the same, the judgement and decree of the courtbelow in O.S.No.3 of 1988 dated 22.02.1990 is confirmed and thefirst appeal stands dismissed with cost to respondents 4 to 6 andthe LRs of the 3rd Respondent namely respondents 9 to 10 and theplaintiffs shall pay the Court fee. nbjSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge, Tindivanam.2. The Collector, Tindivanam District.3. The Section Officer, Accounts Section, High Court, Madras.4. The Section Officer, VR Section, High Court, Madras. Order inA.S.No.1080 of 1990BV(CO)SR/6.7.2007