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2000 DIGILAW 536 (MAD)

Thulasi Ammal v. S. Rajaram and others

2000-06-07

A.SUBBULAKSHMY

body2000
Judgment : Plaintiff is the appellant. 2. The plaintiff filed the suit for partition and separate possession of her 1/4th share in item 1 and 3/8th share in item 2 of the suit property and for accounting. The case of the plaintiff is as follows: The first defendant is the elder brother of the plaintiff and defendants 2 and 3 of the purchasers of the suit property from the first defendant. The first item of the suit property originally belonged to the plaintiff and her brother the first defendant ancestrally. In the second item of the suit property, half portion belonged to the plaintiff and the first defendant ancestrally and the other half portion was purchased by their father Nagasami Ayyar out of his own funds and it is his self acquired property. Nagasami Ayyar along with the plaintiff, the first defendant and their mother was in possession and enjoyment of the suit properties and as such the plaintiff is the co-owner along with the first defendant. Nagasami Ayyar died on 3. 1956 leaving behind him, the plaintiff, the first defendant and their mother. So, the plaintiff, the first defendant and their mother succeeded to the properties of Nagasami Ayyar. Subsequently, the mother of the plaintiff and the first defendant died on 7. 1961 intestate leaving behind her, the plaintiff and the first defendant alone as her heirs. So, the plaintiff is entitled to a share out of her mothers properties. The plaintiff is entitled to 1/3rd share in the first item of the suit property and she is also entitled to 1/4th share in the ancestral half portion of item 2. The plaintiff was in possession of this portion along with the first defendant. After marriage, the plaintiff has been residing with her husband even during the lifetime of her father. The first defendant, without the knowledge and consent and permission of the plaintiff, sold the first item of the suit property to the second defendant by registered sale deed. The first defendant has no right to sell the plaintiffs share in the first item. They plaintiff is entitled to 1/4th share in item one. The first defendant also without the knowledge and consent of the plaintiff, sold the second item to the third defendant by a registered sale deed dated 111. 1972. The first defendant has no right to sell the plaintiffs share in the first item. They plaintiff is entitled to 1/4th share in item one. The first defendant also without the knowledge and consent of the plaintiff, sold the second item to the third defendant by a registered sale deed dated 111. 1972. The first defendant has no right to sell away the plaintiffs share in the second item also. So, the sale in respect of the plaintiffs share in the suit property is not binding on the plaintiff. The plaintiff continues to be in joint possession of the second item also. The defendant is not amenable for partition and separate possession. Hence, the plaintiff has come forward with the suit for partition and separate possession of her share in the suit properties. .3. Thefirst defendant filed written statement contending as follows: .The suit properties are the ancestral properties of this defendant. The suit properties were possessed, owned and enjoyed by the grandfather of this defendant. After his death, they devolved upon the father of this defendant as the sole surviving coparcener. The father of this defendant died on 3. 1956 before the commencement of the Hindu Succession Act, 1956 and the properties of the father devolved on this defendant as his only son by survivorship. So, the plaintiff and the mother of this defendant have no right, title or interest on the suit properties. This defendant has been in open, continuous possession and enjoyment of all the properties of the father including the suit properties in his own absolute right as full owner. This defendant has been leasing out the properties to various tenants and collecting the rents and income therefrom for his own use and benefit. Mutation proceedings were taken even during the lifetime of the mother of this defendant to the knowledge of the plaintiff and this defendant has been paying taxes. The plaintiff was given in marriage by the father of this defendant at heavy expenses according to the communal rites and rituals. This defendant alone was dealing with the suit properties as absolute owner. The plaintiff has no right over the suit properties and it has been extinguished by efflux of time. Only this defendant is in continuous and uninterrupted possession and enjoyment of the suit properties. This defendant alone was dealing with the suit properties as absolute owner. The plaintiff has no right over the suit properties and it has been extinguished by efflux of time. Only this defendant is in continuous and uninterrupted possession and enjoyment of the suit properties. This defendant sold the suit properties to the other defendants by two registered sale deeds for valuable consideration and from the date of purchase, the other defendants have been in possession and enjoyment of their respective properties. The plaintiff is also aware of the sale in favour of defendants 2 and 3. She never demanded partition of the properties at any time. The first defendant had been in continuous possession and enjoyment of the suit properties in complete exclusion of the plaintiff for several decades. So, the defendant is not in joint possession as co-owner. The plaintiff is not entitled to partition and separate possession asked for. 4. The second defendant filed written statement contending that she has been in exclusive possession and enjoyment of the second item as owner thereof paying taxes in her name and the first defendant got the suit property by survivorship after the death of his father and the plaintiff had never been in joint possession of the suit property and the father of the plaintiff had number of properties apart from the suit properties and the plaintiff has not mentioned anything about them. .5. The third defendant filed written statement contending as follows: .This defendant purchased item 2 of the suit properties from the first defendant for valuable consideration after ascertaining the first defendants title. The first defendant was the absolute owner and after the purchase by this defendant, this defendant is in possession and enjoyment. The plaintiff is not the coparcener and she is not entitled to the suit properties. There is no question of joint possession. Only the first defendant was the absolute owner of the suit properties. 6. The suit was tried by the Sub Judge, Madurai and it was dismissed. The plaintiff is not the coparcener and she is not entitled to the suit properties. There is no question of joint possession. Only the first defendant was the absolute owner of the suit properties. 6. The suit was tried by the Sub Judge, Madurai and it was dismissed. In arriving at such conclusion, the Sub Judge held that defendants 1 to 3 have acquired title by adverse possession since the plaintiff, after the date of her marriage, did not claim any right in the properties and the plaintiff was also not given any share in the income from the properties and only the first defendant was in possession and enjoyment of the suit properties and has acquired title to the properties by adverse possession and defendants 2 and 3 who are the purchasers from the first defendant are the owners of the suit property. The trial court also found that all the properties of Nagasami Ayyar are not included in the suit and the other purchasers of the first defendant are also not added as parties in the suit and even on that ground, the suit is not maintainable and the suit is barred by limitation since the plaintiff did not file the suit within the period of three years from the date of death of her mother. 7. Aggrieved against that judgment and decree, the plaintiff has come forward with the present appeal. 8. Point for consideration is whether the plaintiff is entitled to partition and separate possession of her share. 9. Mr.R.Parthasarathy, learned counsel for the appellant submitted that the plaintiffs father Nagasami Ayyar died on 3. 1956 leaving behind him, his wife, his son the first defendant and the plaintiff his daughter and the mother died on 7. 1961 leaving behind her the plaintiff and the first defendant and on the death of her husband, the mother got the half share of her husband and the other half share went to the son the first defendant and the mother inherited the half share of the joint family property, which were inherited by her under Sec.3(2) of the Hindu Womens Rights to Property Act and it had become enlarged into an absolute right by the operation of Sec.14(1) of the Hindu Succession Act which came into force on 16. 1956 and the mother became the absolute owner of her half share in the suit property by virtue of Sec.14(1) of the Hindu Succession Act and on her death, her heirs the plaintiff-daughter and the first defendant-son became each entitled to 1/4th share in the joint family property and so, the plaintiff is entitled to 1/4th share in item 1 and half of item 2 of the suit property and the remaining half share in item 2 of the suit property is the self acquired property of the father and so, the plaintiff is entitled to 3/8th share in the second item of the suit property. .10. Learned counsel for the respondents submitted that the plaintiff got married and left the joint family and she was never in joint possession and enjoyment of the suit property and only the first defendant was in possession and enjoyment of the suit property, he having got the property by survivorship since the father died before passing of the Hindu Succession Act, 1956 and the first defendant was in continuous possession and enjoyment of the suit property and he has also prescribed title by adverse possession and only the first defendant became entitled to the suit property and the plaintiff is not entitled to partition and separate possession of the suit properties. 11. The plaintiffs father Nagasami Ayyar died on 3. 1956. The defendants contend that all the properties are joint family properties. Learned counsel for the respondents submit that since the half share of item 2 of the properties was also purchased from an out of joint family nucleus and that half share is also joint family property and it is not a self-acquired property of the father Nagasami Ayyar as contended by the plaintiff. .12. Counsel for the plaintiff pointed out that as the half portion of item 2 of the suit property stands in the name of the father, it is a separate property. He relies upon the decision of this Court in Periambillai v. Somayan , (1993)2 MLJ. 275 wherein this Court has held that: .“It is settled law that there is no presumption that any property standing in the name of the kartha or a member of the joint family is a joint family property. He relies upon the decision of this Court in Periambillai v. Somayan , (1993)2 MLJ. 275 wherein this Court has held that: .“It is settled law that there is no presumption that any property standing in the name of the kartha or a member of the joint family is a joint family property. The person who wants to set up the case that the property purchased in the name of a coparcener is that of the family must plead and prove the existence of a joint family nucleus with sufficient surplus income on the date of purchase.“ 13. The plaintiff has not let in any evidence to prove that it is self acquired property of her father. The evidence of P.W.1 is that her father had no work and only from and out of the income from the land, he was maintaining his family and it is only from the joint family nucleus the other half share of the property was purchased and it is not a self acquired property. The first defendant, in his written statement has clearly stated that all the properties are joint family properties. So, it is proved that all the properties are the joint family properties. 14. The father diedbefore the Hindu Succession Act came into force. On the death of the plaintiffs father on 3. 1956, as per the Hindu Womens Rights to Property Act, the fathers half share was inherited by the mother and by virtue of Sec.14(1) of the Hindu Succession Act, 1956, the mothers half share enlarged into an absolute right. So, on the death of the mother on 7. 1971, the mother was the absolute owner of the half share in the suit property. 15. Learner counsel for the plaintiff submitted that by virtue of Sec.14(1) of the Hindu Succession Act, the mothers limited share enlarged into the absolute right and the plaintiff, the daughter is entitled to 1/4th share in the property. He relies upon the decision in M.V.Chockalingam Pillai v. Alamelu Ammal M.V.Chockalingam Pillai v. Alamelu Ammal M.V.Chockalingam Pillai v. Alamelu Ammal , (1981)2 MLJ. 23: A.I.R. 1982 Mad. 29 wherein a Division Bench of this Court held that: ”The suit property in the instant case originally belonged to a Hindu who died in 1942 leaving behind him, his wife (the widow), a son (the defendant) and a daughter (the plaintiff). 23: A.I.R. 1982 Mad. 29 wherein a Division Bench of this Court held that: ”The suit property in the instant case originally belonged to a Hindu who died in 1942 leaving behind him, his wife (the widow), a son (the defendant) and a daughter (the plaintiff). The widow died in 1963, after which the daughter filed a suit against her brother claiming one-fourth share in the joint property on the basis that the half share of her father in the joint family property which was inherited by her mother as a limited interest under Sec.3 of Hindu Womens Rights to Property Act had become enlarged into an absolute right by the operation of Sec.14(1) of the Hindu Succession Act and consequently she (the plaintiff) as one of two heirs of her mother was entitled to 1/4thth share in the joint property. The claim of the plaintiff was upheld by the trial court as well as by a single Judge of the High Court. In the present Letters Patent Appeal filed by the defendant it was held as under: A conjoint reading of Sec.3(2) and (3) of the 1937 Act clearly indicated that a Hindu widow shall have in the property of family, the same interest as her husband had subject to its curtailment to the extent indicated in Sec.3(3)i.e., a limited interest known as ‘Hindu Womens Estate’. It was true that the plaintiffs mother had not asserted or worked out her rights by filing a suit for partition during her lifetime. But, the question was not as to what she did or did not do, but as to what her interest was on the date of commencement of Act 30 of 1956 ( viz. on 16. 1956). Admittedly on that date she had the same interest in the suit properties as her husband had at the time of his death viz., the 1/2 share which devolved on her under Sec.3(2). That interest had not been lost by her or extinguished. The question whether she lost her right by not filing a suit for partition during her lifetime would arise only if Sec.14(1) of Act 30 of 1956 had not intervened in the meanwhile. As Sec.14(1) has operated even before her death in 1963 of there was no question of any rule of survivorship applying. The question whether she lost her right by not filing a suit for partition during her lifetime would arise only if Sec.14(1) of Act 30 of 1956 had not intervened in the meanwhile. As Sec.14(1) has operated even before her death in 1963 of there was no question of any rule of survivorship applying. Sec.3(2) of the 1937 Act does not give a mere right to sue for partition to the Hindu widow but it gives the entire interest of the husband to the widow on his death subject to that the being limited under Sec.3 (3). The contention that the word ‘property’ occurring in Sec.14(1) of Act 30 of 1956, meant a ‘specific property’ or ‘specified interest in a property’ cannot be accepted as in that event, that section would lose much of its force and the object of the section would be substantially defeated. Even a joint interest owned by the Hindu widow and her joint possession will attract the operation of Sec.14(1) of the 1956 Act. It is also now well settled that the word ‘possession’ in Sec.14(1) did not mean only physical possession but included also legal possession. If the defendant and his mother could be taken to be in joint possession, under law, then such interest and joint possession of the plaintiffs mother in the suit properties would be enlarged into an absolute estate under Sec.14(1). The only thing to be considered for deciding the question of applicability of Sec.14(1) is to see whether the Hindu Widow had an interest in any ‘property’ as defined in the explanation to that section. In the instant case as already stated the widow had a acquired the half share which her husband had at the time of his death. That was an interest in immovable property possessed by the widow on the date of commencement of Act in 30 of 1956. Hence, the applicability of Sec.14(1) in the instant case could not be avoided, merely on the ground that before or after the commencement of Act 30 of 1956 the widow had not filed a suit for partition. Her interest became absolute by virtue of the statute, not at her volition. Hence, the applicability of Sec.14(1) in the instant case could not be avoided, merely on the ground that before or after the commencement of Act 30 of 1956 the widow had not filed a suit for partition. Her interest became absolute by virtue of the statute, not at her volition. The interest which she possessed the at the time of commencement of the Hindu Succession Act having become enlarged into an absolute estate there was no necessity for her to file a suit for partition for her half share in the properties which was acquired by her as a ‘Womens Estate’ and therefore the rule of survivorship could no longer apply with reference to such interest.” Relying upon the above decision, learned counsel for the plaintiff submitted that the plaintiff is entitled to 1/4th share in the properties since the rule of survivorship will not apply to this case after the commencement of the Hindu Succession Act. 16. It is settled law that after coming into force of the Hindu Succession Act, the property inherited by the mother as a limited owner had become enlarged into an absolute right by virtue of Sec.14(1) of the Hindu Succession Act. Whether that settled law is applicable to the facts of this case is a question to be considered in this case. 17. The plaintiff as P.W.1 in her evidence has stated that her brother was selling the properties and she was also selling the property by executive sale deed in respect of her share. She states that after the death of her father, her brother the first defendant was managing the properties and after the death of the mother, her brother sold the property and only the suit two items are left now. She further states that the property adjacent to the second item of the suit property was also sold by her in respect of her share and her brothers sold the first and second item of the suit properties to defendants 2 and 3. She further states that she has disposed of the properties which came to her share and she never joined her brother in disposing of the properties, but she did not file any of the sale deeds in respect of her share. She further states that she has disposed of the properties which came to her share and she never joined her brother in disposing of the properties, but she did not file any of the sale deeds in respect of her share. She further states that her brother the first defendant sold the property to one Hussain Bhoy and in that document, herself and her husband signed as witnesses. So, it is well evident from the evidence of P.W.1 that she was also disposing of her share by executive sale deeds. This clearly shows that the plaintiff was given her share in respect of family properties. The clear admission of P.W.1 in her evidence that she was also disposing of the properties which came to her share and she has also signed as witness along with her husband in the sale deed executed by her brother in favour of one Hussain Bhoy clearly goes to establish that the plaintiff was also allotted a share and she was disposing of the same. She also clearly admits in her evidence that she was residing only in the property which was purchased by the third defendant. So, the plaintiff was also aware of the sale deeds of executed in favour of defendants 2 and 3. 18. The categorical evidence of D.W.1 is that he alone was enjoying the income from the suit properties and other properties and he alone is realising the rental income from the suit properties. He has filed counterfoils of receipt book Exs.B-1 and B-2. He states that in respect of the suit property, he alone was in possession and enjoyment and he sold the suit property to defendants 2 and 3. He further states that he disposed of all the ancestral properties. P.W.1 has also admitted that she had executed four sale deeds, but she did not mention it in the plaint and there is no reason for non-mentioning of that fact in the plaint. She specifically states that she sold two houses and landed property. Her further evidence is that in the sale deeds executed by her, she has stated that she is selling the undivided 1/4th share. But, she specifically states that the vendees did not file any suit for partition of their share. She specifically states that she sold two houses and landed property. Her further evidence is that in the sale deeds executed by her, she has stated that she is selling the undivided 1/4th share. But, she specifically states that the vendees did not file any suit for partition of their share. So, the clear admission of P.W.1 in her evidence proves that division had already taken place and the plaintiff was also disposing of her property. If really the undivided share alone was sold as stated by her, the vendees would have filed suit for partition of their share and they would not have kept quiet. The plaintiff herself admitted that she had disposed of two houses and lands. She has not stated that a portion of the house was sold. The categorical evidence of P.W.1 is that she had sold full houses. She further admits that she did not add her vendees as parties in the suit and she also did not add the properties sold by her in the schedule of properties. She further states that on the date of filing the suit, each of the houses sold by her was of the value of Rs.1,00,000 and the value of the nanja land was Rs.25,000 and Rs.30,000. She further admitted that she sold her properties to four persons and her brother the first defendant also sold his property. So, it is well evident from the evidence of P.W.1 that the plaintiff and the first defendant have sold their respect shares to the vendees. So, from the evidence of P.W.1 it emerges that the plaintiff was already given her share and she was disposing of her share. After getting her share in the property, the plaintiff is not entitled to contend that she is entitled to partition and separate possession of items 1 and 2. The plaintiff filed the suit for partition and separate possession. The plaintiff must bring all the properties for partition and separate possession. The clear admission of P.W.1 clearly establishes that she has disposed of her properties and she has come forward with this suit only with respect two of these two items. So, the suit is bad for non-joinder of other items of the properties. 19. The plaintiff must bring all the properties for partition and separate possession. The clear admission of P.W.1 clearly establishes that she has disposed of her properties and she has come forward with this suit only with respect two of these two items. So, the suit is bad for non-joinder of other items of the properties. 19. The fact that the plaintiff was also disposing of her share and the plaintiff also signed as witness along with her husband in the document executed by her brother goes to establish that the plaintiff was already given her share and she was dealing with the same and the first defendant was dealing with his properties separately. D.W.1 specifically states that he alone was in possession and enjoyment of the properties by paying kist and he alone was enjoying the property and sold the properties to defendants 2 and 3. The evidence of P.W.1 and D.W.1 shows that the plaintiff was already given her share and she was dealing with it separately and she was also disposing of the properties allotted to her and the first defendant was dealing with his properties separately and he was also disposing of the properties allotted to him. So, it can be safely concluded that the plaintiff was already given her share and she was disposing of her properties and she is not entitled to partition and separate possession of her share in the suit properties. 20. On the death of the father, the mother acquired the half share by virtue of Sec.3 of the Hindu Womens Right to Property Act and her right got enlarged as an absolute owner by virtue of Sec.14 (1) of the Hindu Succession Act. If all the properties were kept intact without dealing with it, then of course, it can be contended that the plaintiff is entitled to 1/4th share in the suit properties. According to Sec.14(1) of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. According to Sec.14(1) of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. There cannot be any dispute that the plaintiffs mother acquired the half share of the suit property on the death of her husband as contemplated under Sec.3(2) of the Hindu Womens Rights to Property Act and by virtue of Sec.14(1) of Act 1956 the Central Act 30 of 1956, the widows estate had become absolute. But, since it has been established by the evidence of P.W.1 and D.W.1 that the plaintiff has already been given her share and she had disposed of her share, it can be safely concluded that division had already taken place and the plaintiff was given her share and because of that only she disposed of her share in the suit properties. Even though the mothers estate got enlarged into an absolute one by virtue of Sec.14(1) of the Hindu Succession Act, since the plaintiff was already given her share in the family properties and as she has also disposed of her share in the suit properties, the plaintiff cannot lay any claim by seeking partition and separate possession. The plaintiff was already given her share and she has also disposed of her share. It is clearly borne out by the evidence of P.W.1 herself. Under those circumstances, the plaintiff is not entitled to partition and separate possession. In the result, the appeal fails and is dismissed. No costs.