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2005 DIGILAW 79 (MAD)

Roja Malar v. Mariappan

2005-01-20

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment and decree in A.S.No.19 of 1992 in and by which the Sub Court, Sankari has allowed the said appeal and set aside the judgment and decree passed by the District Munsif Court, Sankari in O.S.No.100 of 1990, the plaintiff has preferred this second appeal. 2. The material grounds alleged in support of the second appeal are to the effect that the release deed marked as Ex.B1 dated 25.7.1984 is void and not binding upon the plaintiff and that the lands purchased under the sale deeds marked as Exs.B4 to B6 in the name of the mother of the first defendant have been impressed with the character of joint family properties and thereby the plaintiff is entitled to get half share in 1 acre 90 cents covered by Survey No.110/B that was allotted to the first defendant as per the partition deed dated 3.3.1988 marked as Ex.B7 on the strength of section 29A of the Hindu Succession Act, 1956 and so on. 3. The plaintiff viz., minor Roja Malar, through her next friend and mother Ammasi filed the suit in O.S.No.100 of 1990 against her father the first defendant viz., Mariappan and his minor sons viz., defendants 2 and 3 through the second wife of Mariappan for the relief of partition of the plaint schedule properties viz., 0.05 hectare in survey No.110/1A with a well and motor pumpset, 1.73 hectare in Survey No.110/1B into two half with the simple allegation that the suit properties are ancestral properties of the plaintiff and defendants obtained by the first defendant through a registered partition deed dated 3.3.1988 and that the plaintiff becomes a co-parcener on the strength of the amended Hindu Succession Act (Tamilnadu Amendment Act, 1989) and that in spite of notice issued to the first defendant for partition, the first defendant has not complied with the demand and that since defendants 2 and 3 cannot claim any share upon the suit properties in view of the fact that the first defendant himself has denied the marriage between himself and the mother of defendants 2 and 3 Kamalam in the proceedings viz., C.C.No.336 of 1979 and M.C.No.12 of 1989 on the file of the Sub Divisional Judicial Magistrate, Sankari. 4. 4. The first defendant and his minor sons have filed written statement with the allegations that the suit properties are not ancestral properties of the plaintiff and defendants and that the claim of the plaintiff as if she has become a co-parcener is not correct and that even in the year 1984 itself, the plaintiff and her mother Ammasi have executed a release deed in favour of the first defendant in respect of claim for maintenance as well as right upon the properties of the first defendant after receiving a sum of Rs.5000/= by the said Ammasi and Rs.5500/= by the plaintiff and that the release deed is binding upon the plaintiff as well as her mother Ammasi since it was executed as per the compromise and decision of the panchayatdars and that defendants 2 and 3 are also having share over the suit properties and as such the plaintiff has no manner of right to claim any right much less partition upon the suit properties and consequently, the suit is liable to be dismissed. 5, After trial, the District Munsif, Sankari passed the preliminary decree for half share of the suit properties. Aggrieved against such judgment and decree, the defendants filed A.S.No.19 of 1992 before the Sub Court, Sankari and the Sub Court, in turn, after considering the oral and documentary evidence available for either side, came to the conclusion that the plaintiff is not entitled to get the decree for partition for the reason that the description of the properties is not proper and correct and consequently, allowed the appeal and dismissed the suit. 6. I have heard the arguments of both side in detail in the light of the judgments of both the courts below as well as oral and documentary evidence available for either side. The basis for claiming partition by the plaintiff is pleaded in the plaint to be the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (I of 1990) and its section 29-A. At the same time clause (v) of section 29-A provides that nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 i.e., 25.3.1989. so, it goes without saying that as per the plaint, the age of the plaintiff is 14 i.e., on 17.4.1990 and the partition has been effected among the first defendant, his brothers and their father on 3.3.1988 as evidenced by Ex.B7 i.e., before the said Act came into force. Consequently, even on the date of the said partition among the first defendant, his brothers and their father, the plaintiff should be a minor of 12 years. However, there is no mention of the plaintiff in the said partition deed and there is mention of defendants 2 and 3 as minor sons of the first defendant. The fact remains that the properties covered by each schedule under the said partition deed marked as Ex.B7 has been allotted to the first defendant. Therefore, it goes without saying that even before the said Act came into force, partition of the properties has been effected among the first defendant, his brothers and their father and at that time, though the plaintiff was a minor girl, no reference has been made in the said partition deed and it is because of the reason that the plaintiff cannot have any claim or right on the strength of the said amended Act. When that being so, it is too much for the plaintiff now in the year 1990 to file the suit for partition between the plaintiff and her father the first defendant as if the plaint schedule properties are joint family properties having the character of ancestral one. When once there is partition among the first defendant, his brothers and their father in respect of the properties, it goes to indicate that the properties allotted to the first defendant in each schedule of the partition deed is his separate properties. Consequently, it is needless to point out that either the plaintiff herein or defendants 2 and 3 herein cannot claim any right of partition during the lifetime of the first defendant. 7. Apart from the above observed aspect, it is to be pointed out that as per Ex.B7, under 'E' schedule only 1 acre 90 cents out of 1.73 hectares covered by S.No.110/1B alone has been allotted to the share of the first defendant. On the other hand, the plaint schedule second item is shown as 1.73 hectares under Survey No.110/1B which is obviously incorrect. On the other hand, the plaint schedule second item is shown as 1.73 hectares under Survey No.110/1B which is obviously incorrect. Likewise, it is to be pointed out that the plaint schedule first item viz., 0.05 hectare covered by S.No.110/1A has not at all been allotted to the share of the first defendant under Ex.B7 partition deed. Consequently, the inclusion of this item is, obviously, incorrect and without any basis. Further, as per the sale deeds marked as Exs.B4 to B6, I am able to see that 2 acre 74 cents covered by S.No.110 through Ex.B4, 58 cents covered by S.No.110 through Ex.B5, 1 acre 8 cents covered by S.No.110 through Ex.B6 have been purchased by the first defendant's mother viz., Sevathi Ammal and thereby the said Sevathi Ammal appears to have purchased 4 acres 40 cents covered by S.No.110. So, it goes without saying that the properties to the extent of 4 acre 40 cents covered by Exs.B4 to B6 purchased by the mother of the first defendant cannot be considered as ancestral properties as alleged or claimed by the plaintiff and instead they are the properties obtained by the sons and husband of Sevathi Ammal after her death. No doubt, Ex.B7 is having a recital as "ek; FLk;gj;jpw;F g{h;tPfkha[k; gpJuhh;$pjkha[k; ghj;jpag;gl;l brhj;Jf;fis@ and yet such recital cannot give a character of these lands particularly the extent of land covered by Exs.B4 to B6 as ancestral properties. On the other hand, such recital denotes or indicates that parties to the partition deed were prepared and willing to divide the properties obtained ancestrally and separately and in other words, the properties obtained separately through the mother and ancestrally were clubbed together for the purpose of partition among the first defendant, his father and brothers. Such recital alone cannot be considered to attribute ancestral character to all the properties covered by all the schedules under Ex.B7 partition deed. On the other hand, the properties obtained separately by mother as well as ancestrally have been put together for the purpose of effecting partition between the brothers and father. Such recital alone cannot be considered to attribute ancestral character to all the properties covered by all the schedules under Ex.B7 partition deed. On the other hand, the properties obtained separately by mother as well as ancestrally have been put together for the purpose of effecting partition between the brothers and father. It is more significant to note that as per Ex.B7 partition deed, only 1 acre 90 cents out of 1.73 hectares covered by S.No.110/1B alone has been allotted under 'E' schedule to the share of the first defendant which in turn forms part of the property obtained through his mother on the basis of the documents marked as Exs.B4 to B6. In such circumstances, the claim or plea of the plaintiff as if whatever properties obtained by the first defendant as per Ex.B7 have to be partitioned between the plaintiff and the first defendant as if they are ancestral properties cannot be sustainable and acceptable. 8. Notwithstanding the validity of Ex.B1 release deed executed by the plaintiff's mother Ammasi in favour of her husband the first defendant Mariappan on 25.7.1984 in pursuance of the understanding through panchayatdars, the fact remains that the said release deed cannot bind the plaintiff who was then minor so far it relates to the right of claim of maintenance or right of share upon the property of the first defendant. However, that right of claim or share upon the properties can accrue only after the death of the plaintiff's father viz., Mariappan and in any event not during the lifetime of the first defendant Mariappan. Likewise, the right of defendants 2 and 3 also can accrue only after the death of Marappan and not during the life time of Mariappan. 9. Therefore, the judgment of the Sub Court, Sankari in allowing the appeal and dismissing the suit, though for different reasons, the dismissal of the suit as such stands correct for the reasons indicated above. Further, it is to be pointed out that the plaint has been drafted casually and hurriedly for the reasons best known to the plaintiff's mother with incorrect and improper description of the plaint schedule properties and probably with a view to harass the first defendant who had already obtained release deed from her through the advice of mediators and panchayatdars in the course of criminal proceedings before the Sub Divisional Judicial Magistrate, Sankari. 10. 10. In all, I am of the view that the second appeal has no merits in a way to invite this court to interfere with the judgment of the Sub Court, Sankari. Consequently, the second appeal fails and the same is dismissed with costs.