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2012 DIGILAW 2568 (MAD)

Tmt. Pushpa v. K. H. Raviendran

2012-06-20

P.R.SHIVAKUMAR

body2012
Judgment :- 1. The averments found in the plaint, in brief, are as follows: i) Tmt. Jeevarekha, the second plaintiff, Thiru. K. H. Raviendran and Thiru. K. H. Chandra Mohan, the first and second defendants are the daughter and sons of late K. E. Hemachala Achary, born thorough his first wife. After the death of the mother of the second plaintiff and the defendants 1 and 2, the said Hemachala Achary married Tmt.Pushpa, the deceased first plaintiff. R. Hamsaveni, the third defendant is the wife of the first defendant and Nirmala, the fourth defendant is the daughter of the second defendant. Late K. E. Hemachala Achary did not have any issues through his second wife Pushpa. Hemachala Achary was the absolute owner of plaint 'A' and 'B' schedule properties having obtained plaint 'A' schedule property by virtue of a registered settlement deed dated 24.03.1969, registered as document No.811/1969 on the file of Sub Registrar Office, Kodambakkam and plaint 'B' schedule property under a partition effected by a deed of partition dated 19.03.1961, registered as document No.824/1961 on the file of Sub Registrar, T.Nagar. The first wife of K. E. Hemachala Achary, namely the mother of the second plaintiff and defendants 1 and 2, died in April 1965 and late K. E. Hemachala Achary married Pushpa (deceased first plaintiff) on 03.03.1966. K. E. Hemachala Achary died on 23.05.1975 at Chennai leaving behind him the first plaintiff Pushpa being his widow, the second plaintiff being his daughter and defendants 1 and 2 being his sons as his legal heirs. According to the case of the plaintiffs, the said property of K. E. Hemachala Achary, on his demise, devolved equally on plaintiffs 1 and 2 and defendants 1 and 2. ii) After the demise of K. E. Hemachala Achary, the first plaintiff had constructed a building in a portion of plaint 'B' schedule property with an extent of 416 sq.ft. and got the revenue and corporation records changed in her name. Defendants 1 and 2 being the male members of the family were allowed by the plaintiffs to manage and administer the properties. Defendants 1 and 2 by letting out several portions of the suit property to different tenants were collecting rent to the tune of more than Rs.8,600/- per month and they did not allow the plaintiffs to stay in the suit properties. Defendants 1 and 2 by letting out several portions of the suit property to different tenants were collecting rent to the tune of more than Rs.8,600/- per month and they did not allow the plaintiffs to stay in the suit properties. Besides failing and neglecting to maintain the first plaintiff, they also denied the legitimate share of the plaintiffs in the rent. In view of the said attitude of the defendants 1 and 2, the first plaintiff started living with her step daughter, namely the second plaintiff. The defendants 1 and 2 besides denying the legitimate share of the plaintiffs in the rent received for the suit properties, also failed to account for the income derived from the same. They also failed to make payment of taxes payable to the statutory authorities and allowed the properties to deteriorate in its potential value without proper maintenance. It made the plaintiffs apprehend that the statutory authorities might bring the suit properties for sale for arrears of taxes. Even though the plaintiffs were requesting the defendants 1 and 2 for partition of the suit properties, they were evading the same without giving proper answer. As such, the second plaintiff Jeevarekha issued a lawyer's notice dated 10.08.2005 calling upon the defendants 1 and 2 and the first plaintiff to divide the suit properties and allot 1/4th share to her and also demanding rendition of accounts for the rents received by the defendants 1 and 2. The defendants 1 and 2, who received the notice, did not come forward to comply with the demand made in the notice and on the other hand, the defendants 2 to 4 sent a reply notice dated 01.09.2005 contending untenable allegations and disputing the rights of the plaintiffs over the suit properties. Since the first plaintiff was prepared for a partition and plaintiffs 1 and 2 were of the view that the properties should not be allowed to remain undivided, they chose to join together and filed the suit for partition and other reliefs. iii) While so, on enquiry, the plaintiffs came to know that the defendants 1 and 2 had sold certain portions of 'A' schedule property in favour of defendant No.5 on 25.10.1989 under a registered deed bearing document No.3901/1989 registered on the file of Sub Registrar, Virugambakkam, falsely suppressing the fact that there were other legal heirs entitled to a share in it. The plaintiffs also came to know that the first defendant executed two settlement deeds in favour of the third defendant on 20.01.2005 and 30.06.2005 in respect of a portion of 'A' schedule property and the second defendant also executed a settlement deed in favour of the 4th defendant on 09.04.2005 in respect of a specific extent and registered on the file of Sub Registrar, Virugambakkam. Since the said deeds were executed behind the back of the plaintiffs, who are co-owners having 1/4th share each, they are not binding on the plaintiffs. Hence the plaintiffs have filed the suit 1) for a declaration that the partition deed dated 25.10.1989 registered as document No.3894/1989 on the file of Sub Registrar Office, Virugambakkam is sham and nominal and is not binding on the plaintiffs; 2) for a declaration that the sale deed dated 25.10.1989 executed by the second defendant in favour of the fifth defendnat bearing document No.3991/1989 on the file of Sub Registrar Office, Virugambakkam is sham and nominal and is not binding on the plaintiffs; 3) for a declaration that the settlement deeds dated 20.01.2005 and 30.06.2005 executed by the first defendant in favour of the third defendant and the settlement deed dated 09.04.2005 executed by the second defendant in favour of the fourth defendant in respect of plaint 'A' schedule property are sham and nominal and are not binding on the plaintiffs; 4) for a preliminary decree for partition of the suit properties into four equal shares and allotment of one such share to each one of the plaintiffs; 5) for a direction to the defendants to render true and proper accounts in respect of the mesne profits of the suit properties for a period of three years prior to the date of plaint and pay 1/4th share thereon to each one of the plaintiffs; 6) for such other relief and reliefs as this Hon'ble Court may deem fit and and 7) for an order directing the defendants to pay cost of the suit. 2. The defendant No.1 filed a written statement, which was adopted by the third defendant. Similarly, defendants 2 and 4 jointly filed a separate written statement. 2. The defendant No.1 filed a written statement, which was adopted by the third defendant. Similarly, defendants 2 and 4 jointly filed a separate written statement. More or less, the averments made in the written statement of D1, which was adopted by D3 and the written statement of D2 and D4 contain similar averments, which are as follows: i) The relationship of the parties as described in the plaint are correct and hence not disputed. Plaint 'A' schedule property comprised in survey No.137 of Valasarawakkam village and the land described in plaint 'B' schedule comprised in survey No.177/1B of Saligramam village were the properties of K.E. Hemachala Achary, is not disputed. The fact that Hemachala Achary died intestate on 23.05.1975 at Chennai is also true. But the claim of the plaintiffs that Hemachala Achary died leaving the plaintiffs 1 and 2 and the defendants 1 and 2 as his legal heirs to succeed to his estate is not correct. After the death of Hemachala Achary, the first plaintiff Pushpa got married to another man for the second time and left the home in 1978. Thereafter she was not in the viscinity of the suit properties and she also gave birth to a child in 1981. First plaintiff, the widow of K.E. Hemachala Achary having remarried, lost her right to succeed to the properties of her first husband K.E. Hemachala Achary and hence the claim of the first plaintiff Pushpa is liable to be rejected. ii) So far as the claim of the second plaintiff Jeevarekha is concerned, she was given in marriage in 1969 itself and Hemachala Achary, who conducted her marriage on 23.04.1969, gave her lot of jewels and seethana articles. In view of the same, the second plaintiff also is not entitled to claim any share in the suit properties. The husband of the second plaintiff did have no income of his own. Hence the second plaintiff and her husband were allowed to stay in the family house and allowed gratuitous boarding and lodging in plaint 'B' schedule property. After the first plaintiff left the home in 1978, second plaintiff became the family head along with her husband and they were collecting the rents for the suit properties. They also got the salary of the first defendant and also the income of the second defendant. After the first plaintiff left the home in 1978, second plaintiff became the family head along with her husband and they were collecting the rents for the suit properties. They also got the salary of the first defendant and also the income of the second defendant. Taking advantage of such a position, they diverted the funds of the family, spending a meager amount for the maintenance of the family, for purchasing a separate property in the name of the husband of the second plaintiff and put up a construction thereon in the year 1986. When the same was questioned, the second plaintiff informed the defendants 1 and 2 that she had enjoyed the property till 1989 and hence the first and second defendants could divide the properties among themselves. Accordingly, as a first step, the defendants 1 and 2 effected a partition of plaint 'A' schedule property under a registered partition deed bearing document No.3894/1989 registered on the file of Sub Registrar, Virugambakkam. As such even the second plaintiff has lost her right to claim a share in the suit properties. The revenue records and corporation records were changed in the name of the first plaintiff after the demise of K.E. Hemachala Achary purely as a matter of convenience. Even assuming that the plaintiffs 1 and 2 had got 1/4th share each in the suit properties, their right got extinguished by ouster and exclusion, since the defendants 1 and 2 started openly asserting their right, denying the share of the plaintiffs as early as in 1989 and hence the suit must be dismissed. 3. Based on the above said pleadings, the following issues were framed. "1. Whether the plaintiffs are entitled to seek declaration that the partition deed, dated 25.10.1989 is sham and nominal and not binding on them? 2. Whether the Sale Deed, dated 25.10.1989 executed by the defendants 1 and 2 in favour of the 5th defendant is not valid and not binding on the plaintiffs undivided 1/4th share? 3. Whether the Settlement Deed, dated 20.01.2005 and 30.06.2005 allegedly transferring the properties by the first defendant in favour of the third defendant and the Settlement Deed dated 09.04.2005 executed by the second defendant in favour of the fourth defendant are valid on the plaintiffs' 1/4th undivided share? 4. Whether the plaintiffs are entitled to 1/4th share each in the suit properties and entitled to decree for partition? 5. 4. Whether the plaintiffs are entitled to 1/4th share each in the suit properties and entitled to decree for partition? 5. What other relief the parties are entitled to?" 4. The second plaintiff was examined as PW.1 (sole witness) and 16 documents were marked as Exs.P1 to P16 on the side of the plaintiffs. One Manimaran, the Power of Attorney holder of the defendants 2 and 4 was examined as DW.1 (sole witness) and one document was marked as Ex.D1 on the side of the defendants. In fact after the filing of the written statement and settlement of issues and when the trial was in progress, defendants 1 and 3 failed to pursue the matter further. They did not cross-examine PW.1 and did not examine any witness on their side and hence they have been set ex.parte by an order dated 28.04.2011. Thereafter the defendants 2 and 4 alone happened to be the contesting defendants. 5. The arguments advanced by Mr. M. Balasubramanian, learned counsel for the plaintiffs and by Mr. P.B. Ramanujam, learned counsel for the defendants 2 and 4 were heard. The materials available on record were also perused. Issues 1 to 5 6. The suit was originally filed by Pushpa and Jeevarekha as plaintiffs 1 and 2 against 1) K.H. Raviendrran, 2) K.H.Chandra Mohan, 3) Tmt.R. Hamsaveni, 4) Tmt.M. Nirmala and 5) K.Nithyanandam, who have been arrayed as defendants 1 to 5. Second plaintiff Jeevarekha, first defendant K.H. Raviendran and second defendant K.H. Chandra Mohan are respectively the daughter and sons of late K.E. Hemachala Achary, born through his first wife. The first wife of Hemachala Achary/the mother of the second plaintiff and of the defendants 1 and 2 died in the year 1965. Thereafter K.E. Hemachala Achary married Pushpa, the first plaintiff and thus the first plaintiff Pushpa became the step mother of the defendants 1 and 2 and of the second plaintiff. The above said relationship is not in dispute. According to the plaint averments, the suit properties were the absolute properties of late K.E. Hemachala Achary and he died intestate on 23.05.1975. The plaint averments proceeded further to the effect that on the death of Hemachala Achary without leaving any will, the plaintiffs 1 and 2 and the defendants 1 and 2 became his legal heirs entitled to succeed to the estate of Hemachala Achary and each one became entitled to ¼th share. The plaint averments proceeded further to the effect that on the death of Hemachala Achary without leaving any will, the plaintiffs 1 and 2 and the defendants 1 and 2 became his legal heirs entitled to succeed to the estate of Hemachala Achary and each one became entitled to ¼th share. The fact that Hemachala Achary died intestate on 23.05.1975 leaving behind the plaintiffs and the defendants 1 and 2 as his legal heirs is not disputed. On the other hand, the defendants 1 and 3 and 2 and 4 in their written statements had contended that the first plaintiff Pushpa having re-married after the death of K.E. Hemachala Achary, lost her right to get a share in the estate of Hemachala Achary. The said stand taken by the defendants is legally unsustainable. A widow who gets a property from the estate of her husband as his legal heir under the Hindu Succession Act, 1956 gets it as an absolute asset and the property thus vested on her shall not be divested because of her re-marriage. Therefore the contention of the defendants 1 to 4 made in their written statements that the first plaintiff, namely the step mother of the defendants 1 and 2 and the second plaintiff lost her right to have a share in the suit properties because of her re-marriage is untenable and legally unsustainable. 7. The defendants 1 to 4 have also taken a stand that though in normal circumstances the second plaintiff, being the daughter of late K.E. Hemachala Achary, would be entitled to a share in his estate as his legal heir, because of the fact that she was given a lot of jewels and seethana articles at the time of her marriage by her father, she would not be entitled to claim a share in the property of her late father. The said contention of the defendants 1 to 4 also is untenable and legally unsustainable. Whatever the jewels or articles that might have been given at the time of marriage of a woman by her father, parents or other relatives, shall be her seethana property and the same cannot be projected as a ground for excluding her from succeeding to the property of her parents dying intestate. Whatever the jewels or articles that might have been given at the time of marriage of a woman by her father, parents or other relatives, shall be her seethana property and the same cannot be projected as a ground for excluding her from succeeding to the property of her parents dying intestate. Even if the jewels and seethana articles were given at the time of marriage on the understanding that she would not claim any share in the property of the father or the mother, as the case may be, on their death, the same cannot be enforced in law, as it will amount to a relinquishment of a right, which had not accrued. Such a relinquishment shall be hit by the rule against transfer of spes successionist. Till succession opens, it shall be only a chance of getting a share. Such a chance may not be the subject matter of transfer. On the other hand, if at all the succession had already opened, to say the father or mother had died and the succession to his/her estate opened and thereafter a daughter entitled to a share in the property wants the other members of the family to give her jewels and seethana articles in lieu of her share, the same can be taken as a valid family arrangement, by which the daughter has relinquished her share in the property of her father/mother as the case may be. On the other hand, any assurance or understanding that the daughter who gets jewels and seethana articles at the time of marriage will not get a share in her parents' property who would would die subsequently, cannot be enforced in law. Therefore the contention of the defendants 1 to 4 raised in their written statements that the second plaintiff having been given a lot of jewels and seethana articles at the time of her marriage shall not be entitled to claim a share in her father's property after his death, cannot be countenanced and the same deserves to be rejected. 8. Therefore the contention of the defendants 1 to 4 raised in their written statements that the second plaintiff having been given a lot of jewels and seethana articles at the time of her marriage shall not be entitled to claim a share in her father's property after his death, cannot be countenanced and the same deserves to be rejected. 8. The defendants 1 to 4 have also taken a stand that in 1978, the first plaintiff left the family after getting remarried and thereafter the second plaintiff along with her husband took the management of the family properties; that out of the income derived from the family properties and the income of the first and second defendants, a separate property in the name of the husband of the second plaintiff had been purchased and when the propriety of the said act was questioned by the defendants 1 and 2, the second plaintiff agreed not to claim any share in the properties of her father, namely the suit properties and gave permission to the defendants 1 and 2 to effect partition among themselves and that only pursuant to the same, the defendants 1 and 2, as a first step, effected a partition of the plaint 'A' schedule property under a partition deed dated 25.10.1989. By such averment the defendants 1 to 4 have tried to contend that there was oral relinquishment of her shares by the second plaintiff. They have also taken a stand that the first and second plaintiffs have been ousted and their rights to share, if any in the suit properties, have got extinguished by ouster. The person who claims ouster has to plead and prove the same by reliable evidence. 9. In this case, though the defendants 1 to 4 have claimed that the right of the plaintiffs got extinguished by ouster, defendants 1 and 3 have not chosen to come forward to lead any evidence in proof of the above said plea of theirs. Though defendants 2 and 4 also had taken such a plea in their written statement, during the course of trial they have come up with a stand and they have come forward to concede the claim of the plaintiffs. Probably because of the death of the first plaintiff Pushpa, the defendants 2 and 4 have not chosen to press their stand that the plaintiffs had lost their right by ouster. Probably because of the death of the first plaintiff Pushpa, the defendants 2 and 4 have not chosen to press their stand that the plaintiffs had lost their right by ouster. In fact, the second plaintiff, who appeared as PW.1, has given clear testimony to the effect that all the transactions among the defendants were made behind the back of the plaintiffs and soon after they got knowledge of the same, they demanded partition and filed the suit for partition and for other reliefs including the reliefs for declaration of such documents as sham and nominal and not binding upon the plaintiffs. However, the defendants 2 and 4 have come forward to concede the fact that on the death of Hemachala Achary, plaintiffs 1 and 2 and defendants 1 and 2 as legal heirs of Hemachala Achary became entitled to 1/4th share each in the properties left by Hemachala Achary. 10. Though a stand was taken by the defendants 1 to 4 that the first plaintiff Pushpa got remarried in the year 1978 and left the family and she also gave birth to a child through her second husband, no document has been produced to show that the first plaintiff Pushpa gave birth to a child through her second husband. Even if it is true that she gave birth to a child through her second husband, that will not have the effect of divesting the right vested on her in respect of her late first husband's property. Suppose the first plaintiff has died without having any children of her own, then sub clause (2) of section 15 of the Hindu Succession Act, 1956 would get attracted so that the share of the first plaintiff would have gone to the second plaintiff and the defendants 1 and 2. On the other hand, if she had got a child of her own through her second marriage, the position will be different. It is unnecessary to probe the said aspect any further because of the fact that the defendants have not come forward with necessary particulars as to the name of the second husband of the first plaintiff and the name, date of birth and other particulars of the child allegedly born to the first plaintiff. It is unnecessary to probe the said aspect any further because of the fact that the defendants have not come forward with necessary particulars as to the name of the second husband of the first plaintiff and the name, date of birth and other particulars of the child allegedly born to the first plaintiff. In view of the same, we have to assume that the contention raised by the defendants 1 to 4 that the first plaintiff remarried and through her second husband she got a child has not been substantiated by evidence. Now the first plaintiff is no more and she has died pending disposal of the suit. A memo dated 03.01.2011 has been filed informing the court that the second plaintiff and the defendants 1 and 2 are the legal heirs of the deceased first plaintiff Pushpa. The memo was recorded and second plaintiff and defendants 1 and 2, who were already on record, have been recorded as legal representatives of the first plaintiff. As per the Hindu Succession Act, 1956, the properties of late K.E. Hemachala Achary devolved upon the first plaintiff Pushpa (widow), the second plaintiff Jeevarekha (daughter), the first defendant K.H. Raviendran (son) and the second defendant K.H. Chandra Mohan (son) equally and they got 1/4th share each. Now because the first plaintiff Pushpa is dead and the second plaintiff and the defendants 1 and 2 alone have been stated to be her legal heirs, her 1/4th share devolves upon her step daughter and step sons, namely second plaintiff and defendants 1 and 2 equally. Thus the shares of the first plaintiff, first defendant and second defendant got increased from 1/4th to 1/3rd. That is the reason why the second plaintiff and the defendants 2 and 4 have come forward with a Joint Memo dated 27.09.2011 under which the defendants 2 and 4 have conceded the right of the second plaintiff to have 1/3rd share in the suit properties. However, since the second defendant has sold a portion of 'A' schedule property, namely an extent of 2128 sq.ft. to the fifth defendant under a registered sale deed dated 25.10.1989, a certified copy of which has been marked as Ex.D1, the defendants 2 and 4 and the second plaintiff have come to an understanding that out of the total extent, the second plaintiff shall be allotted 2152 sq.ft. to the fifth defendant under a registered sale deed dated 25.10.1989, a certified copy of which has been marked as Ex.D1, the defendants 2 and 4 and the second plaintiff have come to an understanding that out of the total extent, the second plaintiff shall be allotted 2152 sq.ft. towards her 1/3rd share in the plaint 'A' schedule property in the extent remaining after excluding the land covered by sale deed, a certified copy of which has been marked as Ex.D1. They have arrived at such an understanding that the sale in favour of the 5th defendant need not be disturbed. Subject to the said condition, the defendants 2 and 4 have conceded for a preliminary decree for partition as prayed for. 11. The first prayer in the plaint is for a declaration that the partition deed dated 20.10.1989 registered as document No.3894/1989 on the file of Sub Registrar, Virugambakkam is sham and nominal and the same does not affect the rights of the plaintiffs. The second, third and fourth prayers are for declarations that the settlement deeds dated 20.01.2005 bearing document No.207/2005 on the file of the Sub Registrar Office, Virugambakkam, settlement deed dated 30.06.2005 bearing document No.3612/2005 on the file of the Sub Registrar Office, Virugambakkam under which portions of the suit properties were sought to be gifted by the first defendant in favour of the third defendant and settlement deed dated 09.04.2005 bearing document No.2169/2005 on the file of Sub Registrar, Virugambakkam executed by the second defendant in favour of the 4th defendant purporting to gift a portion of the suit property are sham and nominal and will not affect the share of the plaintiffs. We have already seen that though defendants 1 to 4 have taken a stand in their written statements that the right of the plaintiffs 1 and 2 to have their share in the suit properties got extinguished by ouster, the said contention has not been substantiated by evidence. On the other hand, there is clear evidence to the effect that the said partition deed and settlement deed came to be executed behind the back of the plaintiffs. Certified copies of those documents have been produced as Exs.P3 to P6 respectively. There is no recital in Ex.P3 supporting the defence plea that the second plaintiff had orally relinquished her share. She was not a party to the said document. Certified copies of those documents have been produced as Exs.P3 to P6 respectively. There is no recital in Ex.P3 supporting the defence plea that the second plaintiff had orally relinquished her share. She was not a party to the said document. She was not even asked to attest as a witness. Therefore, it is clear that the said documents had been brought into existence by a secret deal between the defendants 1 and 2 behind the back of the plaintiffs. Copies of the settlement deeds have been marked as Exs.P4 to P6. They have been executed only in the year 2005 probably after a demand for partition was made with intent to defeat the claim of the plaintiffs. But it cannot be said that those documents have been executed by the executants of those documents as sham and nominal. The donor under the settlement deeds may not have got absolute title in respect of the property sought to be gifted. That does not mean that the document is sham and nominal. To say a document sham and nominal the parties must intend that no effect was to be given to the said document. In this case, though the donor under the originals of Exs.P4 to P6 might have intended to confer title on the donees therein and hence the same should not be termed sham and nominal, the said documents shall not have the effect of defeating or affecting the rights of the other co-sharers, namely the plaintiffs 1 and 2. Hence a declaration to the effect that the partition deed dated 25.10.1989, a copy of which has been marked as Ex.P3, settlement deeds dated 20.01.2005, 30.06.2005 and 09.04.2005, copies of which have been marked as Exs.P4 to P6 respectively are not binding upon the plaintiffs and they are entitled to ignore the same. 12. In view of the above said finding, this court holds that the plaintiffs are entitled to a preliminary decree for partition directing division of the plaint A and B schedule properties into three equal shares and allotment of one such share to the second plaintiff subject to a rider that the 1/3rd share of the 2nd plaintiff in the plaint A schedule property, which accounts for an extent of 2152 sq.ft. shall be allotted in the remaining portion after deducting the extent sold by the second defendant to the 5th defendant under the original of Ex.D1. The question of mesne profits shall be relegated to be considered at the time of final decree proceedings. Upto this stage, the parties shall bear their respective cost of litigation. 13. In the result, the suit is decreed granting a declaration that the partition deed dated 25.10.1989, a copy of which has been marked as Ex.P3, settlement deeds dated 20.01.2005, 30.06.2005 and 09.04.2005, copies of which have been marked as Exs.P4 to P6 respectively, are not binding upon the plaintiffs and the plaintiffs are entitled to ignore the same and granting a preliminary decree directing division of the plaint 'A' and 'B' schedule properties in to three equal shares and allotment of one such share to the second plaintiff subject to a rider that the 1/3rd share of the second plaintiff in the plaint 'A' schedule property, which accounts for an extent of 2152 sq.ft. shall be allotted in the remaining portion after deducting the extent sold by the 2nd defendant to the 5th defendant under the original of Ex.D1 sale deed dated 25.10.1989. The question of mesne profits shall be relegated to be considered at the time of final proceedings. Up to this stage, the parties shall bear their respective cost.