Kannammal v. Vembana Gounder

For Respondents:Mr.A.K.Kumarasamy for R1 & R2Mr.T.Murugamanickam for R4 in A.S.No.928 of 1997Mr.V.K.Muthusami,Sr.counsel forM/s.V.P.Sengottuvel in A.S.No.467 of 1998COMMON JUDGMENTThis appeal is focussed as against the judgement anddecree dated 27.7.1994 passed in O.S.No.226 of 1983 by the IAdditional Subordinate Judge, Erode.2.Niggard and bereft of details, the facts giving riseto the filing of the suit, as stood exposited from the plaintcould be set out thus:(a) The deceased Nachi Muthu Gounder had two sons andtwo daughters, namely, Subbanna Gounder(D1), KolandasamyGounder(D2), Palaniammal and Nachayammal(P2). (b) Subbanna Gounder(D1) died on 8.5.1990 leavingbehind Kannammal(D4), Sivagami(D5), Bakkialakshmi(D6) as hislegal heirs. The said Palaniammal died leaving behind her sonsthe first plaintiff-Vembanna Gounder as her legal heir.Kolandasamy Gounder/D2's son is K.Chandrasekaran/D3.(c) The 'A' scheduled properties are admittedly thejoint family properties of the said family. The 'B' scheduledproperties are the self-acquired properties of the deceasedNachimuthu Gounder. Consequent upon the death of NachimuthuGounder on 5.6.1980, his two daughters also along with hissons, became entitled to their respective shares as his legalheirs, in the suit properties. However, the defendants, whoare the male descendants of Nachimuthu Gounder colludedtogether and denied the right of the plaintiffs in the suitproperties. (d) There were previous proceedings and the partieslitigated up to the High Court in Second Appeal. Ultimately inthe previous proceedings the Court directed the parties tofile a separate suit for partition. Hence, the present suitwas filed by the plaintiffs herein as against the defendants,seeking 1/12th share each in favour of the first and secondplaintiffs in the 'A' scheduled properties and 1/4th share eachin the 'B' scheduled properties. https://hcservices.ecourts.gov.in/hcservices/ (e) The fact remains that at the instance of thedefendants 4, 5 and 6, the 'C' and 'D' scheduled propertieswere also included in the suit schedule. Accordingly, theplaintiffs prayed for a preliminary decree and consequently, afinal decree as per law.3. Refuting and remonstrating, challenging andimpugning the allegations/averments in the plaint, D1 thepropositus of D4, D5 and D6 filed the written statement duringhis life time as under:(i) From out of the income derived from the ancestralproperties, namely, the 'A' scheduled properties, the 'B'scheduled properties were purchased by Nachimuthu Gounder andhence, those properties are also the joint family properties.Further, from out of the joint family income only, the 'C'scheduled properties also were acquired. There was some familyarrangement, under which D1 and D2 were cultivating differentportions of the ancestral properties and earned profit and outof that the 'D' Scheduled properties were purchased.(ii) Owing to some misunderstanding, which eruptedbetween Nachimuthu Gounder and D1, the former, on 19.2.1972,executed a settlement deed in favour of D3- Chandrasekaran-theson of D2, relating to Survey No.294-B, which forms part of the'C' scheduled properties. Such a settlement deed is a shamand nominal one and not acted upon. Ultimately the saiddocument could only be termed as a null and void one. (iii) The said Nachimuthu Gounder also executed a saledeed on 15.3.1996 in favour of the said D3, measuring an extentof 6 acres 52 cents in Survey Nos.120/2 and 140, which alsoforms part of the 'C' scheduled properties,but it was not actedupon. In fact, Nachimuthu Gounder had no right to execute sucha sale deed in respect of the joint family property and therewas no joint family necessity also to alienate the property.(iv) The plaintiffs are entitled to 1/12th share eachand the first and second defendants are each entitled to 5/12thshare in the 'A' and B' scheduled properties.4. D2 filed the written statement seeking to allot5/12th share in 'A' scheduled properties and 1/4th share in the'B' scheduled properties.5. The gist and kernal of the averments in the writtenstatement of D3 could be portrayed and parodied thus: https://hcservices.ecourts.gov.in/hcservices/ The deceased Nachimuthu Gounder executed a registeredsale deed dated 15.6.1973, conveying the items 1(a) and (b) of'C' Scheduled properties in favour of D3; there at he has beenin exclusive possession and enjoyment of the same. Under oneother registered sale deed executed in favourh of D3, he is inpossession and enjoyment of the second item of 'C' Scheduledproperties as owner. The 3rd and 4th items of the 'C' scheduledproperties were settled by Nachimuthu Gounder as per theRegistered Settlement Deed dated 19.12.1972 in favour of D3,whereupon he has been in possession and enjoyment of thoseproperties. Accordingly, he prayed for dismissal of the suitfor partition in respect of the 'C' scheduled properties. 6. Defendants 4, 5 and 6, after they having beenimpleaded as LRs of deceased D1, filed their common writtenstatement, contending that 'A', 'B' and 'C' scheduledproperties in the plaint are all joint family properties andthat already partition deed dated 30.11.1984 had emerged andhence, the present suit was not maintainable.7. The defendants 4 to 6 also filed additional writtenstatement adopting the written statement of D1, but however,contending that the entire suit properties should be dividedinto 12 equal shares and allot 5 shares in favour of D4, D5 andD6.8. The plaintiff filed the reply statement also,reiterating their previous stand.9. The trial Court framed the relevant issues. Duringtrial on the side of the plaintiffs, the first plaintiffexamined himself as P.W.1 and Exs.A1 to A3 were marked. D2examined himself as D.W.1 and D4 examined himself as D.W.2 andon defendants' side Exs.B1 to 57 were marked.10. Ultimately, the trial Court passed a preliminarydecree in its own way and it is extracted hereunder. @1/ jhth brhj;Jf;fspy; 1-3 g';F brhj;jpy; 2k; thjpkwlWk; 1. 2 gpupthjpfspd; jfg;gdhUk;. 1 tJ thjp kw;Wk;3tJ gpujpthjpapd; ghl;ldhUkhd ehr;rpKj;J ft[z;luhy;3tJ gpujpthjp bgahpy; vGjp itf;fg;gl;ljhd kw;Wk; fpuar;brhj;jpwlFk; kw;Wk; 3k; gpujpthjpapd; bgahpy; bgwg;gl;lbrhj;Jf;fspd; bkhj;j kjpg;gPl;il fHpj;Jf; bfhz;L kPjk;cs;sjpy; thjpfSf;F 2-4 ghfj;jpw;Fk; cj;jutplg;gLfpwJ/ https://hcservices.ecourts.gov.in/hcservices/ 2/ 4. 5. 6 gpujpthjpfSf;F jhthr; brhj;Jf;fspy;1/3 ghfj;jpw;Fk; 2. 3 gpujpthjpfSf;F 1-3 ghfj;jpw;Fk;nkYk; 3 tJ gpuj[pthjpfSf;F thjpfSf;fhfr;brhd;djhthr; brhj;jpd; 1-3 ghf brhj;jpy; ehr;rpKj;Jf;ft[z;luhy; Vw;gLj;jg;gl;l brhj;Jf;fspd; kjpg;gpw;Fk;nkYk; nkw;go 1-3 ghfj;jpy; kPjKs;sjpy; 1-4 ghfk; 4Kjy; 6 gpujpthjpfSf;Fk; mjpy; kPjk; cs;s 1-4 ghfk; 2.3 gpujpthjpfSf;F xJf;fpa[k; cj;jutplg;gLfpwJ/@11. Being aggrieved by and dis-satisfied with thejudgment and decree of the Court below, D3 filed the appealA.S.No.467 of 1998 on various grounds, the gist and kernal ofthem would run thus:(a) the judgement and decree of the lower Court inrespect of 'C' scheduled properties is against lawand weight of evidence; instead of dismissing thesuit relating to the 'C' scheduled properties,the trial Court simply treated those propertiesalso as joint family properties and included inthe partition.(b) Even though the plaintiffs never claimed anyright over the 'C' scheduled properties, the trialCourt granted relief in respect of thoseproperties also. Accordingly, D3 prayed for setting aside the decree andjudgement and decree of the lower Court in respect of the 'C'schedule of the suit property.12. Anim-adverting upon the judgement and decree of thetrial Court, the defendants 4, 5 and 6 filed the appealA.S.No.928 of 1997 on various grounds, the warp and woof ofthem could be set out thus:-(a) the trial Court was wrong in orderingpartition of the 'D' scheduled properties also,ignoring the fact that 'D' scheduled propertieswere purchased by D1 and D2 from out of their ownexertion and it should not have been treated asjoint family properties of the entire family. (b) the trial Court was wrong in giving a findingthat Nachimuthu Grounder intended to settle item 2of 'C' scheduled properties in favour of D3(c) the trial Court also failed to note that Ex.B2was executed in favour of D3 only to teach alesson to D1 and not intended it to be a sale. https://hcservices.ecourts.gov.in/hcservices/ (d) the trial Court was wrong in holding thatEx.B2 was valid in respect of Nachimuthu Gounder'sshare when the Court accepted the case of D3 to D7that the sale was illegal and improper in respectof the joint family property.(e) the trial Court failed to note that consequentupon the partition deed dated 30.11.1984 (Ex.A47)there was a division of status; D1 was enjoyinghis share separately and earned income; from outof the said income, he purchased 'D' scheduledproperties jointly with D1 and such 'D' scheduledproperties should not have been treated as jointfamily properties. Accordingly D4, D5 and D6/the appellants A.S.928 of 1997 prayedfor deleting the 'D' scheduled properties from the decree ofthe trial Court and consequently, prayed for setting aside thejudgement and decree of the trial Court.13. Heard both sides and perused the records, includingthe impugned judgment.14. The points for consideration are:(i) Whether 'A', 'B', 'C' and 'D' scheduledproperties of the plaint are all co-parcenaryproperties, liable for partition or not?(ii) Whether the plaintiffs are not having rightto claim any share in the 'C' and 'D' scheduledproperties of the plaint?(iii) Whether the sale deed-Ex.B2 and thesettlement deed-Ex.B14 emerged in favour of D3relating to certain items of 'C' scheduledproperties are valid or not?(iv) Whether there is any infirmity in thejudgement and decree of the trial Court?(v) What are the respective rights of the parties?14. The parties are referred to here under, forconvenience sake, according to their litigative status beforethe trial court.15. Points (i) to (iii): These points are takentogether for discussion as they are interconnected and inter-linked, inter-woven and entwined with each other. https://hcservices.ecourts.gov.in/hcservices/

16. The warp and woof of the arguments of the learnedSenior counsel for D4, D5 and D6/the appellants in A.S.NO.928of 1997 would be that undoubtedly, the 'A' scheduledproperties are the ancestral properties, the 'B' scheduledproperties, even though purchased in the name of deceasedNachimuthy Gounder; nonetheless it is obvious that from out ofthe income derived from the 'A' scheduled properties only the'B' Scheduled properties were purchased; the 'C' scheduledproperties are also joint family properties of the family ofNachimuthu Gounder and he had no right to alienate by way ofsale and settlement in favour of D3-his grand son; the 'D'scheduled properties were purchased jointly by D1 and D2 fromout of the income derived from the properties, which wereallotted to them as per the earlier partition and they cannotbe treated as ancestral properties; the plaintiffs filed theplaint citing only the 'A' and 'B' scheduled properties andclaimed partition; it is their consistent case even duringtrial that the alienations made by Nachimuthu Gounder in favourof D3 were valid; the plaintiffs did not claim any share in the'C' scheduled properties; in view of the 'D' scheduledproperties being the properties purchased by D1 and D2, fromout of their own exertion the plaintiffs themselves have notchosen to pray for partition, in the plaint or at least bygetting the plaint amended; the lower Court was not justifiedin ordering partition of all the suit properties; the decreepassed by the lower Court is confusing and no head or tailcould be made out of it.17. The learned counsel for D3/appellant in A.S.No.467of 1998 would submit that the alienations made by NachimuthuGounder in the form of sale and settlement are valid, asNachimuthu Gounder had the right of alienation, which D4, D5and D6 cannot challenge.18. The nitty-gritty of the arguments of the learnedcounsel for the respondents/plaintiffs in both the appealswould be to the effect that all the suit properties areancestral properties; even though the plaintiffs, at the firstinstance did not include the 'C' and 'D' scheduled propertiesin the plaint schedule, nonetheless at the instance of D4, D5and D6 themselves, those properties were added, as it was theywho pleaded that those properties also have to bepartitioned.19. The factual matrix, as found detailed anddelineated, evinced and evidenced from the above, wouldnecessitate this Court to analyse the status of the parties atthe first instance. Unassailably and incontrovertibly, https://hcservices.ecourts.gov.in/hcservices/ Nachimuthu Gounder and his two sons, namely, D1 and D2constituted the coparcenary and they had 1/3rd share each inthe 'A' scheduled properties; even though the plaintiffscontended in the plaint that the 'B' Scheduled properties wereacquired by Nachimuthu Grounder from out of his own earningsand exertion, they could not fortify their stand. Absolutelythere is no speck or morsel, dot or miniscule of evidence tobuttress the stand that the 'B' Scheduled properties are theself-acquired properties of the deceased Nachi Muchu Grounder.Hence, the finding of the trial Court that the 'B' Scheduledproperties are also the coparcenary properties, warrants nointerference.20. The same logic applied for holding the 'B'Scheduled properties as the ancestral properties could rightlyand legally logically and reasonably be applied to hold the 'C'Scheduled properties also as coparcenary properties, in view ofthe fact that items 1(a) and 1(b) of the 'C' scheduledproperties were purchased by Nachimuthu Gounder vide sale deed-Ex.B1 dated 29.11.1949; item Nos.3 and 4 of the 'C' scheduledproperties are admittedly the ancestral properties. However,relating to item No.2, there is some controversy in view of thefact that the said item was purchased as per Ex.B41 dated7.7.1972, by citing D3-the then minor aged about 7 years,represented by Nachimuthu Gounder, as the purchaser. Accordingto D4, D5 and D6-the then minor D3 had no financial wherewithalto purchase the said items by paying such a sum of Rs.21,000/-as sale consideration and it was the said Nachimuthu Gounder,who from out of the coparcenary funds purchased the saidproperty in the name of D3 and consequently, the said propertyshould be treated as the ancestral property.21. I could see considerable force in the submissionmade by the learned Senior counsel for D4, D5 and D6 that theitem.No.2 of the 'C' scheduled properties also should betreated as ancestral property and that too in the absence ofany evidence in support of the contention of D3, that it wasD3's exclusive property. Considering the evidence of D.W.1(D3)-Chandrasekaran as well as P.W.1, it is crystal clear that the'C' scheduled properties are also the joint family properties.22. The contention of D3 that as per Ex.B2-the saledeed dated 15.6.1973, the said Nachimuthu Gounder executed thesale deed in favour of D3 the then minor, citing D3's mother-Arutkaniammal as natural guardian, in selling the items 1(a)and 1(b) of the 'C' scheduled properties, is valid, cannot becountenanced as such, for the reason that a sum of Rs.40,000/-is referred to as the sale consideration, which was received byNachimuthu Gounder from the minor Chandrasekaran, but https://hcservices.ecourts.gov.in/hcservices/ absolutely there is no shard or shred of evidence to indicateand evidence that such sale consideration was paid. Therelationship between Nachimuthu Gounder and D3 is an admittedone. Palpably and pellucidly, it is therefore, clear that thesaid sale deed is nothing but a disguised donation executed byNachimuthu Gounder in favour of D3-the minor son relating tothe said ancestral property.23. The factum of the Item Nos. 3 and 4 of the 'C'scheduled properties having been settled by Nachimuthu Gounderin favour of D3 as per Ex.B14-the settlement deed dated19.12.1972, is being correctly floored and attacked, inveighedand impugned by D4, D5 and D6 on the ground that NachimuthuGounder had no right as per the Hindu Law to effect anysettlement of donation with regard to the undivided coparcenaryproperty.24. It is a trite proposition in Hindu Law that acoparcener cannot donate or settle his undivided share in thesuit property. In support of his contention, the learnedSenior counsel for D4, D5 and D6 cited the following decisions:(I) AIR 1961 Madras 405-KULASEKARAPERUMAL VS.PATHAKUTTY THALEVANAR AND OTHERS, certain excerpts from itwould run thus:"7. In view of the terms of Ex.I set out above, it isnot possible to construe it as a gift deed pure andsimple. A Hindu coparcener governed by theMitakshara as administered in Madras may dispose ofhis undivided ancestral estate by contract andconveyance. He may mortgage, sell or otherwisealienate for value his undivided share of the jointfamily properties. The Judicial Committee in SurajBunsi Koer v. Sheo Proshad Singh 6 Ind App 88 (PC)stated the law thus at page 101,Since the decision, however, of the cases ofViraswami v. Aiyasami Gramani, 1 Mad H.C.R.471 ofPeddamuthulaty v. Timma Reddi 2. Mannaru Naickan,2.Mad H.C.R. 416 and Rayacharlu v. Venkataramaniah, 4Mad H.C.R.60, it has been settled law in thepresidency of Madras that one coparcener may disposeof ancestral undivided estate, even by contract andconveyance, to the extent of his own share; and afortiori that such share may be seized and sold inexecution for his separate debt". https://hcservices.ecourts.gov.in/hcservices/ The equity in favour of the alienee for the value isperhaps the foundation for the power of alienation ofa coparcener in respect of his undivided share. Butit is equally well settled that gift or devise by acoparcener in a Mitakshara family of his undividedinterest if wholly invalid, subject to certainexceptions. There is a long catena of decisions ofthis court commencing from Baba v. Timma, ILR 1 Mad357 (FB) holding that a gift by a member of a jointfamily of his interest in the joint family propertyin favour of a stranger or a relative is invalid soas not to bind even the coparcener, who made thegift.(8) In Rottala Runganatham Chetti v.Ramaswami Chetti, ILR 27 Mad 162 it was held asfollows:"It is not competent to an individual memberof a Hindu family to alienate by way of gift hisundivided share or any portion thereof; and such analienation, if made, is void in toto. This principlecannot be evaded by the undivided member professingto make an alienation for value when such valueh ismanifestly inadequate and inequitable."Can Ex.I in the case be called a gift? Section 122 ofthe Transfer of Property Act defines gift as follows:"Gift is the transfer of certain existingmoveable or immovable property made voluntarily andwithout consideration, by one person called thedonor, to another called the donee, and accepted byor on behalf of the donee."A gift is essentially a gratuitous transfer.Complete absence of consideration marks the transferas a gift and differentiates it from a grant.(9) In Halsbury's Laws of England, Vol.18page 364, paragraph 692, it is observed as follows:"A gift inter vivos may be defined shortly asthe transfer of any property from one person toanother gratuitously while the donor is alive and notin expectation of death".In the footnote the following passage is quoted fromBlackstones Commentaries:"Gift then, or grants, which are the eighthmethod of transferring personal property are thus tobe distinguished from each other, that gifts arealways gratuitous, grants are upon some considerationor equivalent(2 B.1 Co.440)."The word "consideration' used in S.122 of theTransfer of Property Act is used in the same sense as https://hcservices.ecourts.gov.in/hcservices/ the term is defined in the Indian Contract Act. Thedefinition of consideration under the Indian ContractAct as embodied in S.2(d) is as follows:"When, at the desire of the promisor, thepromisee or any other person has done or abstainedfrom doing, or does or abstains from doing orpromises to do or to abstain from doing, something,such act or abstinence or promise is called aconsideration for the promise."In English Law the terms "consideration' bears themeaning given to it in the classical judgement ofCurrie v. Mis, (1975) 10 Exch.153 at page 162,"A valuable consideration in the sense of thelaw may consist either in some right, interest,profit, or benefit accruing to the one party, or someforbearance, detriment, loss, or responsibility,given, suffered or undertaken by the other...........Detriment to the promisee is of the essenceof the doctrine, and benefit to the promisor is whenit exists, merely an accident (Holdsworth, History ofEnglish law, VIII page 11)".Though the Indian Contract Act does not in termsprovide that consideration must be good or valuableto sustain a contract it has always been understoodthat consideration means something which is of somevalue in the eye of the law. It must be real and notillusory, whether adequate or not, adequacy being amatter purely for the contracting parties to decideand to agree upon. So long as the consideration isnot unreal it is sufficient if it be of slight valueonly.(10) Chitty in his Contact, 21st Edn. Page 47,Vol.I, observes as follows:As regards the extent of trouble, loss orobligation which the promisee has taken upon himselfat the promisor's request, we shall find, onconsidering the cases to be presently referred to,that it is immaterial that the detriment or chargethus assumed is, in fact, of the most triflingdescription, provided it be not utterly worthless infact and in law; and that, unless it appears that thepromisee incurred no detriment whatever, it need notbe shown, in order to constitute a goodconsideration, that benefit resulted to the promisorfrom the performance by the promisee of thestipulated act. It has also been pointed out thatthe emphasis in consideration is not on the benefitof the promisor but the detriment to the promisee." https://hcservices.ecourts.gov.in/hcservices/ (II) 1969 THE MADRAS LAW JOURNAL REPORTS 597 –SRINIVASA PADAYACHI V. PARVATHIAMMAL AND OTHERS, relevantextracts from it would run thus:"Now at the time of execution of Exhibit A-1,the properties were joint family properties and thesettlement was made by a coparcener. The othercoparcener filed the suit for partition and securedhis half share therein. In that suit, there was noplea as between the settlor and the presentplaintiff, that the document was void, nor was thereany finding in that suit given as to the truecharacter of the settlement deed, whether it was agift or conveyance for consideration. The plaintiffin that suit, the brother of the plaintiff's husbandwas given a half share in the properties, ignoringthe alienation as not binding on his share,overruling the defence that it was not joint familyproperty. But if in law the alienation was a gift,it is well settled that the same would not bind eventhe settlor and the absence of a finding in theearlier suit is neither here nor there. It wassufficient for the determination of that suit if itdid not bind the plaintiff therein. The law is thussummed up in Mullah's Hindu Law 13th edition at page291, thus- "According to the Mitakshara law as applied inall the states, no coparcener can dispose of hisundivided interest in coparcenery property by gift.Such transaction being void altogether there is noestoppel or other kind of personal bar whichprecludes the donor from asserting his right torecover the transferred property."(III) 1980 MADRAS LAW JOURNAL REPORTS 507 – DURAI ALIASKARUNANIDHI V. D. DEVARAJALU NAIDU AND 10 OTHERS, an excerptfrom it would run thus: "9. However, a Hindu father or other managingmember has no power to make a gift except withinreasonable limits of ancestral immovable propertiesand that too only for pious purposes. According tothe Mithakshara law, as applied in all the States, nocoparcener can dispose of his undivided interest incoiparcenary property by gift. Such transactionbeing void altogether there is no estoppel or otherkind of personal bar which precludes the donor fromasserting his right to recover the transferredproperty. He may, however, make a gift of his owninterest with the consent of the other coparceners. https://hcservices.ecourts.gov.in/hcservices/ (see paragraph 258 of Mulla's Hindu Law 14th edition).In Ratnasabapathi Pillai and another v. SaraswathiAnmmal', a Bench of the court went into this problemand in the course of the judgment referred to adecision of Venkatappa v. Raghavayya. In the lastmentioned case, a gift deed was executed by theplaintiff for himself and on behalf of his minor sonin favour of a stranger, conveying an item of jointfamily property. The plaintiff thereafter instituteda suit contending that the deed of gift was void andpraying for a declaration that it was not valid inlaw and enforceable. Raghava Rao J., who decided thecase in this Court, referred to the earlier decisionson the subject, and observed that the well recognisedcommon law maxim that a man shall not derogate fromhis own grant had no application to a case in whichthe personal law of the parties rendered altogethervoid a grant by him which must, therefore, be treatedin the eye of the law as altogether non est, andthere being no rights created by a void transactionof that kind, there was no estoppel or any other kindof personal bar akin thereto, which precluded theplaintiff from asserting his right to recover. Anexception to this proposition was, however, pointedout at page 462 of the report Ratnasabapathy Pillaiand another v. Saraswathi Ammal, as follows:"Suffice it to observe that a gift made withthe consent of all the coparceners, where there is nominor or child in the womb, could not be attacked asbeing void in toto........."25. In view of the above excerpts including the entireprecedents cited supra, there could be no doubt that acoparcenar cannot settle or gift his undivided share in thecoparcenary property. However, it is crystal clear that inthis case, the said Nachimuthy Gounder, by virtue of Ex.B41-thesale Deed, which I held supra as disguised donation and Ex.B14-the settlement deed, alienated the items 1(a), 1(b), items 3and 4 of the 'C' scheduled properties, and as such, thosealienations are ineffective and would not bind the othercoparcenars and the legal heirs. 26. In respect of item No.2 of the 'C' Scheduledproperties, my discussion would indicate as to how the saiditem became the coparcenary property in view of NachimuthuGounder having purchased from out of the coparcenary income inthe name of his grand son D3-the then minor. Put simply, theentire 'C' scheduled properties also should be treated ascoparcenary properties available for partition. https://hcservices.ecourts.gov.in/hcservices/

27. The learned counsel for D4, D5 and D6 would referto the excerpt from the famous treatise Hindu Code V Edition,certain excerpts from it would run thus:"13. Allotment for convenient enjoyment – InNagayasami Naidu vs. Kochadai Naidu, there is anagreement between two brothers. Defendants 2 and 1in pursuance of which the second defendant wasallowed to enjoy a substantial portion of theancestral property and the first defendant wasgiven about 15 items, though the items left to beretained by the second defendant and the itemstaken by the first defendant were not equal. Itwas held that during all the time when thisarrangement was in force of the two brothers willeach be entitled to appropriate the income fromthe properties so allotted for themselves and asbetween them inter se there will be no liabilityto render an account. The very idea of allotmentfor convenient enjoyment, though reserving a rightto effect a final partition by metes and bounds,carries with it the necessary implication that thetwo branches were entitled to deal with the incomeaccruing from the properties allotted to them inany manner they liked, and either branchh willhave no claim as against the other in respect ofproperties purchased out of such income. Thepresumption of Hindu law that if the family ownedsubstantial nucleus, every acquisition by a memberwould be presumed to be joint-family property,having been acquired with the aid of joint familyproperty would not apply."28. Over and above that he also cited the followingdecisions in support of his contention:-(i) AIR 1969 MADRAS 329-NAGAYASAMI NAIDU AND OTHERS V.KOCHADAI NAIDU AND OTHERS, certain excerpts from it would runthus:"20. There is on other important aspect which thelower Court has completely overlooked. It is theadmitted case of the plaintiff and the firstdefendant that in 1947, there was an arrangementbetween defendants 2 and 1, in pursuance of which thesecond defendant was allowed to enjoy a substantialportion of the ancestral property and the firstdefendant was given about 15 items, though the itemsleft to be retained by the second defendant and the https://hcservices.ecourts.gov.in/hcservices/ items taken by the first defendant were not equal.In para 20 of the plaint, there is reference to thisarrangement. In para 31 of the plaint, it is statedthat till 1957, the second defendant had given theplaintiffs the amounts due to them i.e. Their shareof the income upto 18.9.1957, which means that so faras the income from the family properties areconcerned, second defendant has accounted for thesame. In para 23 of the written statement of thefirst defendant, first defendant states that thesecond defendant was allowed to be in enjoyment of amajor portion of Alagiri Naicker's properties,because by that time first defendant securedpossession of the properties of Kochadai Naicker.. . . . . . The principle of the Bench decision of thisCourt reported in Ramayya Goundan v. Koalnda Gounda,1939-2 Mad LJ 639: AIR 1939 Mad 911 and the recentjudgment of Anantanarayanan O.C.J.and Natesan J.inP.N.Venkatasubramania Aiyar v. P.N.Eswara Iyer, 1966-1 Mad LJ 471: AIR 1966 Mad 266, would apply to thiscase. In the earlier Bench decision it was pointedout that if the joint family had made an allotment ofproperty to a member, in order that he may maintainhimself out of it without having to bring its yieldinto the family granary for common consumption, it isnot possible in such a case to make the memberaccountable for the property so allotted. In thatdecision it was emphasised that when an arrangementof this kind his made, the predominant ideaundoubtedly is that while the corpus of the propertyshould continue to remain joint, the income shouldexclusively belong to and be at the disposal of themember concerned. It was also pointed out that therewas no difference in principle between a maintenancearrangement in favour of female member of the familyand that made almost in similar circumstances to ajunior male member of a joint Hindu family. Theprinciple of this decision was followed inLatchandhora v. D.Chinnavada AIR 1963 Andh Pra 31 inwhich it was held that properties acquired out of theincome and the savings by a member of the jointfamily shall be deemed to have been acquired by himin circumstances entirely disassociated from theownership of the joint family property. It was alsoobserved that it would be unjust and inequitable thatsuch properties should also be divided between others https://hcservices.ecourts.gov.in/hcservices/ who had nothing to assist the member concerned inacquiring the lands. It was observed as follows atpage 36-"If out of the income derived from the landsallotted to a member of the joint family for hismaintenance, he saves enough to acquire newproperties, they must be deemed to have been acquiredby him in circumstances entirely dis-associated fromthe ownership of the joint property, to adopt thelanguage of Lord Buckmaster in Rani Jagadamb Kumariv. Wazir Narain Singh, 50 at p.61. Further it wouldbe unjust and inequitable that properties acquired byone member out of the income from the lands allottedto his maintenance, should also be divided betweenothers who had nothing to assist the member concernedin acquiring the lands."All these cases have been discussed in the recentBench decision in 1966-1 Mad LJ 471:(AIR 1966 Mad266), and it is sufficient to refer to theobservations of Natesan J.at pages 493 to 496 (ofMLJ):(at pp.283-285 of AIR). The learned Judgepointed out that the acquisitions out of the savingsand income from the joint family property given tothe acquirer would not be partible property asbetween the other members of the family and thebranch of the acquirer, but the character of suchacquisition in the hands of the acquirer vis-a-vishis male children would not be the same.21. From the foregoing it has to be held that even ifthe second defendant had utilised the income from theproperties left in his possession during the period1947 to 1957, to acquire properties whether in hisname or in the names of defendants 3 to 5, they arenot partible properties. In this view no furtherquestion would arise in respect of C, D and Eschedule properties, because they were all acquiredafter 1952. There is the further fact that in para31 of the plaint, plaintiffs have admitted that till1957, the second defendant had given them their shareof the income, with the result that it has to benecessarily held that the acquisitions made by thesecond defendant during that period must have beenonly out of the share of the income from theproperties of his branch. This is anotherindependent ground on which also it has to be heldthat the acquisitions during this period cannot beregarded as joint family properties. In thisconnection it has to be noticed that the propertieswhich have been purchased in the name of the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs during this period have not been broughtinto the hotchpot. Vide for instance Ex.B. 129 saledeed dated 15.7.1954 in favour of the first plaintiffof an extent of seven acres. The other seven acreswere purchased in the name of the third defendant.There are also other items. It will be highlyinequitable and unjust if the plaintiffs and thefirst defendant who kept for themselves theproperties purchased by them are allowed to claim ashare in the properties purchased by the contestingdefendants. The scheme of the purchases themselvesshows that by common consent, properties purchased inthe names of the individual members, were agreed tobe their own properties and not partible."(ii) AIR 1963 ANDHRA PRADESH 31 (V 50 c 14) – DUVVARALATCHANDHORA (DIES) L.Rs.Venkanadhora and others vs. DuvvariChinnavadu and others.(iii) 1939(II) MADRAS LAW JOURNAL REPORTSS 639 –RAMAYYA GOUNDAN V. KOLANDA GOUNDAN AND OTHERS.29. The gist and kernal, the pith and marrow, the warpand woof of those precedents are to the effect that if at allthere is an amicable and volitional, voluntary and consensualfamily arrangement and there-at the coparceners startedenjoying the portions allotted to them and if out of their ownexertions, earned income and purchased some other property,then in that eventuality only such newly acquired propertiescannot be dragged into the common hotchpot at the time ofeffecting regular partition of the coparcenary properties andonly this point is found expressed and expatiated in thecited famous treatise Hindu Code.30. However, in this case, unassailably andindubitably, incontrovertibly and indisputably, the previous socalled partition and family arrangement are all turned out tobe a farcical and in the previous proceedings the High Courtdid not accept such division and consequently the allegedpartition and the alleged convenient enjoyment of properties inmoieties are all turned out to be an ill wind that blow no oneany good There is a bottomless analysis and chasm between avoluntary arrangement among coparcenary and a controversial actof one or a few coparcener in enjoying the coparcenaryproperties. Here the controversial enjoyment, as held by thisCourt earlier, would not enure to the benefit of D4, D5 and D6to press into service the concept as found enunciated in thecited Hindu Code supra and in other related precedents reliedon by the learned Senior counsel D4, D5 and D6. https://hcservices.ecourts.gov.in/hcservices/

31. The contention of the learned Senior counsel forD4, D5, and D6 is that the 'D' scheduled properties werepurchased by the joint exertion of D1 and D2 after the earlierpartition, would take away those properties from being treatedas coparcenay properties of Nachimuthu Gounder and his sons.32. At this juncture it is just and necessary tobriefly refer to the earlier proceedings.33. The learned Advocates appearing in this case inunison would highlight and spotlight the fact that earlierthere were a prolonged litigations between the parties as perthe proceedings in O.S.No.1627 of 1973, A.S.No.117 of 1997 andS.A.1271 of 1997 and what transpired at the end of such prolonged litigation, which was litigated up to this Court, wasthat the parties were directed to file a partition suit,ignoring the said partition which even now D4, D5 and D6 wouldtry to press into service. Once the said partition, which D4,A5 and D6 relied on turned out to be a farce and not valid,their contention that as per the partition or oral arrangementD1 and D2 were in possession and enjoyment of specificportions in the then coparcenary property and earned profitand purchased the 'D' scheduled properties out of the jointexertion, would not hold water. It is the fundamentalprinciple of Hindu Law relating to coparcenary properties thatwhatever property purchased from out of the income derived fromthe undivided coparcenary should be treated as coparcenaryproperty only. 34. It is not the case of D1, D4, D5 and D6 that D1 hadseparate source of income, de hors the income which D1 got fromthe coparcenary properties. Hence, in this view of the matter,the contention of D4, D5 and D6 fails to carry conviction withthis Court. Accordingly, 'D' scheduled properties also shouldbe made available for partition.35.The learned Senior counsel for D4, D5 and D6 wouldsubmit that inasmuch as the plaintiffs themselves in theirpleadings as well as during trial did not claim any share inthe 'C' and 'D' scheduled properties, the lower Court was notjustified in awarding shares in favour of them. By way ofbuttressing and fortifying his contention, the learned Seniorcounsel would cite the following decisions:(I) AIR 2003 SUPREME COURT 160 – GULABRAO BALWANTRAOSHINDE AND OTHERS V. CHHABUBAI BALWANTRAO SHINDE AND OTHERS, anexcerpt from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "7. Counsel for the appellants vehementlyargued that in the absence of any pleadings andevidence to the effect that Balwantrao Shinde hadgiven the property to Chhadubai in lieu ofmaintenance, the High Court has erred inrecording a finding that the property inpossession of Chhabubai was in lieu ofmaintenance which could be enlarged into fullownership rights on her. Counsel for therespondents virtually conceded that Chhabubai didnot either raise the plea nor led any evidence toprove that the properties were given to her byway of maintenance by Balwantrao Shinde. It isalso not disputed that properties in the hands ofBalwantrao Shinde were ancestral in nature. Weagree with the plea raised by the counsel for theappellants that in the absence of any pleadingsto the effect that Balwantrao Shinde had giventhe properties to Chhabubai by way of maintenanceand in the absence of any evidence to thateffect, the finding the properties were given inlieu of maintenance to Chhabubai which rightcould be enlarged into ownership right could notbe recorded. The High Court clearly fell inerror in recording a finding to the effect thatChhabubai had become absolute owner of theproperties left by Balwantrao Shinde. Anotherfactor which persuades us to take this view isthat the properties were ancestral in hands ofBalwantrao Shinde in which plaintiff No.1 had aright by birth. The entire property thereforecould not have been given to Chhabubai by way ofmaintenance.36. The facts involved in the cited decision of theHonourable Apex Court is different from the case in hand andfactually much of a muchness and the between the cited case andthe present case could not be seen, as in that case even thoughthere were no pleadings and evidence to the effect that aproperty was given to a lady in lieu of maintenance, the HighCourt wrongly recorded a finding that the property in thepossession of the said lady was in lieu of maintenance and thatit got enlarged into full ownership in her favour. But here itis quite obvious and axiomatic that the facts are entirelydifferent and as such, the cited decision is not applicable tothe facts and circumstances of this case. https://hcservices.ecourts.gov.in/hcservices/

37. The one other decision cited on the side of theplaintiffs is found reported in AIR 1991 SUPREME COURT 409 – OMPRAKASH AND OTHERS VS. RAM KUMAR AND OTHERS, an excerpt from itwould run thus:". . . . . . . A party cannot be granted a reliefwhich is not claimed, if the circumstances of thecase are such that the granting of such reliefwould result in serious prejudice to theinterested party and deprive him of the valuablerights under the statute. In an action by thelandlord the tenant is expected to defend only theclaim made against him . . . . . . "38. The above decision emerged relating to a disputebetween a landlord and his tenant. Whereupon the Hon'bleSupreme Court mandated that if the circumstances of a case aresuch that granting of relief not asked for would result inserious prejudice to the interest of a party, then it shouldnot be granted. 39. The learned counsel also placed reliance on thedecision reported in AIR 2006 MADRAS 112 – SUBAIDA AND ANOTHERVS. K.A.M.P.MEERANIA MUSLIM EDUCATIONAL SOCIETY to highlightthe point that the Court cannot grant the relief which is notasked for. 40. Once again I would like to point out that in thatcited decision also the facts are entirely different and it isnot one with regard to a partition suit.41. Here, to the risk of repetition, without beingtatalogous, I would like to reiterate that in a partition suit,simply because a party makes some averment incommensurate withthe relief claimed by him, the Court cannot pin down the partyby holding that the party would be entitled only to certainright claimed by him and not to the actual right adjudged bythe Court as the one to which he is entitled. 42. The learned Senior counsel for D4, D5, and D6 wouldplace reliance on the decision rendered by the Patna High Courtin GOBIND KPRASAD SINHA VS. MST.KULWANTI AND OTHERS – AIR 1985PATNA 31. However, the said judgement is on a different set offacts and it is not a judgement relating to a partition suit. https://hcservices.ecourts.gov.in/hcservices/

43. Not to put too fine a point on it, a fortiori,eventhough the plaintiffs have not prayed for relief relatingto 'C' and 'D' scheduled properties and only at the instance ofthe defendants 4, 5 and 6 those 'C' and 'D' scheduledproperties were included in the suit property, yet theplaintiffs could be allotted shares in them and that too in thewake of the evidence marshaled before the Court.44. I would like to incidentally point out that simplybecause the plaintiffs have not got the plaint amendedincluding a prayer for allotting shares in the 'C' and 'D'scheduled properties, the Court is not precluded or preventedfrom allotting shares in those items also when the defendantsvoluntarily had chosen to bring them within the ambit of thesuit.45. Accordingly point No.(i) is decided to the effectthat 'A', 'B', 'C' and 'D' scheduled properties are allcoparcenery properties, liable for partition. 46. Point No.(ii) is answered to the effect that theplaintiffs are having right to claim share in the 'C' and 'D'scheduled properties also.47. Point No.(iii) is adjudged to the effect that thesale deeds and settle deed relating to the 'C' scheduledproperties do not have the effect of depriving the plaintiffs'right to claim partition in the 'C' scheduled properties.48. Point No.(iv): In view of the ratiocination adheredto in deciding the aforesaid points, the 'A', 'B', 'C' and 'D'scheduled properties should be divided into three equal shares,as there were originally three coparceners, viz., NachimuthuGounder, and his two sons D1 and D2. Consequently, the 1/3rdshare of Nachimuthu Gounder shall be divided into four sharesin view of the fact that Nachimuthu Gounder had four children.49. Accordingly the first plaintiff, being the son ofdeceased Palaniammal, the daughter of Nachimuthu Gounder, isentitled to 1/12th share, P2-Nachiammal-the daughter ofNachimuthu Gounder is entitled to another 1/12th share, D2 isentitled to 1/12th share plus 1/3rd share, D4, D5 and D6-beingthe legal heirs of deceased Subbanna Gounder-the son ofNachimuthu Goudner, is entitled to 1/12th share plus 1/3rdshare, in the entire suit properties. Accordingly, preliminarydecree is passed. https://hcservices.ecourts.gov.in/hcservices/

50. To say the least, the lower Court, without au faitwith law and au courant with facts, surprisingly, in the decreeadopted certain equities, which are not akin to legal reasoningat all. The parties are at liberty to apply for final decreeand also praying for the routine and usual reliefs aspermissible in a partition decree, in addition to their rightto apply under Order 20 Rule 12 of the Code of Civil Procedure,for getting assessed the mesne profits and for awarding thesame as per law. Regarding the valuation of properties, theparties are at liberty to adduce evidence during final decreeproceedings and accordingly obtain verdict before the trialCourt.51. In the result, the appeal is partly allowedmodifying the judgement and decree of the lower Court as setout supra. No costs.MskSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe I Additional Subordinate Judge, Erode.Copy to:The Section Officer,VR Section,High Court of Madras,Madras.+ 1 cc to Mr. T. Murugamanikkam, Advocate, SR No.4139+ 1 cc to Mr. V. P. Sengottuvel, Advocate, SR No.4407+ 1 cc to Mr. A. K. Kumarasamy, Advocate, SR No.3957SSN(CO)SR/4.3.2009 Judgement in A.S.Nos.928 of 1997 and 467 of 1998