Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3970 (MAD)

Karthik v. R. Thondaiman VS Rajagopala Thondaiman

2013-11-21

A.SELVAM, S.VAIDYANATHAN

body2013
Judgment : A. Selvam, J. The Judgment and decree dated 13.09.2005 passed in Original Suit No.78 of 2004 by the First Additional District Court (P.C.R.) Trichirapalli are being challenged in the present Appeal Suit. 2. The appellants herein as plaintiffs have instituted Original Suit No.78 of 2004 on the file of the trial Court praying to pass a preliminary decree of partition, granting perpetual injunction and also for directing the defendants 1 and 2 to produce accounts with regard to past profits and also for future profits, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that one Rajkumar Ramachandra Thondaiman is the erstwhile Raja of Pudukottai State and he passed away in the year 1927 leaving behind him his three sons namely Raja Rajagopala Thondaiman, Rajkumar Radhakrishna Thondaiman and Rajkumar Vijaya Ragunatha Thondaiman. The first plaintiff is the son of Rajkumar Vijaya Ragunatha Thondaiman and the second plaintiff is the mother of the first plaintiff. The first defendant is the son of Rajkumar Radhakrishna Thondaiman and subsequently he has been given in adoption to Raja Rajagopal Thondaiman. The second defendant is the mother of the first defendant. The defendants 3 and 4 are the children of the second defendant. The said three brothers have constituted Hindu Joint Family and the first brother by name Raja Rajagopala Thondaiman has given a declaration on 26.09.1969 to the effect that all the properties belonging to undivided Hindu Joint family. The father of the first plaintiff has passed away in the year 1984 leaving behind him the plaintiffs as his legal heirs. The defendants have acted against the interest of the plaintiffs and also attempted to deny the right of the plaintiffs in the suit properties. The defendants have obtained signatures of the father of the first plaintiff in more than one document. The second plaintiff being the widow of Rajkumar Vijaya Ragunatha Thondaiman, has become helpless and ultimately both the plaintiffs have been left in lurch. Under the said circumstances, the present Suit has been filed for the reliefs sought for in the plaint. 4. On the side of the defendants a written statement has been filed like magnum opus. The second plaintiff being the widow of Rajkumar Vijaya Ragunatha Thondaiman, has become helpless and ultimately both the plaintiffs have been left in lurch. Under the said circumstances, the present Suit has been filed for the reliefs sought for in the plaint. 4. On the side of the defendants a written statement has been filed like magnum opus. However, it has been raised in the written statement to the effect that amongst three brothers namely Raja Rajagopala Thondaiman, Rajkumar Radhakrishna Thondaiman and Rajkumar Vijaya Ragunatha Thondaiman a family arrangement has been made in the year 1976, wherein all joint family properties have been divided by metes and bounds and in recognition of family arrangement, a partition list has come into existence on 15.01.1976 and in pursuance of the same, the father of the first plaintiff has executed various sale deeds and the first plaintiff himself has executed a sale deed dated 25.02.1990. Under the said circumstances, the plaintiffs are not entitled to get partition and altogether, the present Suit deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has dismissed the Suit in toto. Against the Judgment and decree passed by the trial Court, the present Appeal Suit has been preferred at the instance of the plaintiffs as appellants. 6. Before contemplating the rival submissions made on either side, it would be apropos to look into the genealogy put forth on the side of the plaintiffs as well as on the side of the defendants. 7. It is an admitted fact that the erstwhile Raja by name Rajkumar Ramachandra Thondaiman has passed away in the year 1927 leaving behind him his three sons namely Raja Rajagopala Thondaiman, Rajkumar Radhakrishna Thondaiman and Rajkumar Vijaya Ragunatha Thondaiman and his three daughters. It is also equally an admitted fact that the first son by name Raja Rajagopala Thondaiman on 26.09.1969 has given a declaration to the effect that all the properties are the joint family properties. 8. It is also equally an admitted fact that the first son by name Raja Rajagopala Thondaiman on 26.09.1969 has given a declaration to the effect that all the properties are the joint family properties. 8. The learned counsel appearing for the appellants/plaintiffs has repeatedly contended that the first plaintiff being the son of third son by name Rajkumar Vijaya Ragunatha Thondaiman, as a coparcener, is entitled to claim partition even by way of ignoring the alleged family arrangement dated 15.01.1976 and further, the partition effected under the guise of family arrangement on 15.01.1976 is not fair and equitable. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint and the trial Court without considering the right accrued to the first plaintiff by birth in the coparcenery, has erroneously non-suited the plaintiffs and therefore, the Judgment and decree passed by the trial court are liable to be interfered with. 9. In support of the contentions raised on the side of the appellants/plaintiffs the following decisions are relied upon: (i) In (1977) 3 Supreme Court Cases 385 (Controller of Estate Duty, Madras Vs. Alladi Kuppuswamy), it is observed as follows: "Thus analysing the ratio of a aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got. ownership extending over the entire property con- jointly with the. rest and so long as no partition takes place, it is difficult for any copercener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property iS common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting condition No. (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husband's death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoy- ment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest 'in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of a coparcenary by virtue of the rights conferred on her under the Act of 1937. (ii) In (1976) 1 Supreme Court Cases 214, (Ratnam Chettiar and others Vs. S.M.Kuppuswami chettiar and others), at paragraph - 19, the Hon'ble Apex Court has culled out the following propositions: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and 874 unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. (iii) In 1951 Supreme Court 280 (Bishundeo Narain & another Vs. Seogeni Rai & Ors.) at paragraph-23, the Hon'ble Apex Court has held as follows: "It is well established that a minor can sue for partition and obtain a decree if his next friend can show that is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. The rule, however, does not apply to decrees if the minor is properly represented before the Court and the decree is as binding on him as on the adult parties, unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem. This contention also therefore fails." (iv) In (1997) 2 Supreme Court Cases 485 (Sher Singh and others Vs. Gamdoor Singh), it is held that "every member of the family would be entitled by birth to a share in the coparcenary property." 10. It is an archaic principle of law that a coparcener by birth is entitled to claim partition in respect of coparcener property. It is also a settled principle of law that even a minor coparcener can work out his remedy by way of filing Suit. Further it is also a settled principle of law that if any partition has taken place which is totally unfair, minor can reopen the same. In the instant case, as per the rival pleadings raised on either side as well as the documents filed on the side of the defendants, the Court can easily come to a conclusion that the first son of erstwhile Raja has given a declaration on 26.09.1969, wherein it has been clinchingly stated that all the properties are nothing but coparcener properties and the said declaration has been marked as Ex.B19 and subsequently on 15.01.1976 a family arrangement has been made amongst the said three brothers in respect of the erstwhile coparcenery properties, wherein the entire properties have been divided into three shares and each brother has been allotted 1/3 share and in recognition of the said family arrangement dated 15.01.1976, on the very same date, a partition list has come into existence and the same has been marked as Ex.B4.11. In order to dispel the contention put forth on the side of the appellants/plaintiffs, the learned Senior Counsel appearing for the respondents/defendants has contended that the entire argument advanced on the side of the appellants /plaintiffs is erroneous in view of the fact that already a partition has taken place amongst the three sons of erstwhile Raja and in order to encrust the partition which has taken place by way of family arrangement, a partition list has come into existence and the same has been marked as Ex.B4 and after Ex.B4, the father of the first plaintiff has executed various sale deeds in respect of properties allotted to his share and even the first plaintiff has executed a sale deed dated 25.02.1990 and a registration copy of the same has been marked as Ex.B11. Under the said circumstances, it is totally unwarranted on the part of the plaintiffs to file the present Suit for getting the reliefs sought for therein and further, coparcener properties can be divided only on the basis of per stripes and not on the basis of per capita and at the most the plaintiffs can enforce their right only in respect of the properties allotted to the share of father of the first plaintiff and the trial Court after considering the rival contentions put forth on either side, has rightly non-suited the plaintiffs and therefore, the Judgment and decree passed by the trial Court are not liable to be interfered with. 12. In support of the contention raised on the side of the respondents/defendants, the following decisions are relied upon: (a) The first and foremost decision is reported in AIR 1936 Madras 689 (Ragireddi) Subba Rao Vs. (Ragireddi) Subba Rao and others), wherein it has been held that "father can represent sons at partition with his brother." (b) The second decision is reported in AIR 1990 Kerala 226 (Thayyullathil Kunhikannan and others V. Thayyullathil Kalliani and others), wherein it is held that "Family arrangements are generally entered into for the purpose of the well being, and harmony, in the family. Thereby disputes are avoided, the honour of the family safeguarded and obligations morally binding on the members of a family are provided for. Thereby disputes are avoided, the honour of the family safeguarded and obligations morally binding on the members of a family are provided for. The factual existence of a dispute is not a sine qua non for the validity of a family arrangement or to justify its existence in view of the beneficial nature and effect of such arrangements. Avoidance of family disputes is only one of the many grounds which go to validate a family arrangement. Any arrangement which is for the benefit of the family generally or tends to the preservation of peace and security in the family is sufficient to make it a family arrangement, valid and binding on the members. When there is a family arrangement binding on the parties, it would operate as an estoppel by preventing the parties, after having taken advantage under the arrangement, from resiling from the same, or trying to revoke it. Recitals in the document incorporating the family arrangement are also equally binding. Even an agreement dividing family property, though entered into under a misapprehension of the legal rights of the parties, (provided the misapprehension was not induced by any party to the agreement) will be supported and sustained as a family arrangement." (c) The third decision is reported in AIR 1976 Supreme Court 1 (Ratnam Chettiar and others Vs. S.M.Kuppuswami Chettiar and others), wherein the Hon'ble Apex Court has held that "a partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside." 13. From the conjoint reading of the decisions referred to supra, it is made clear that in respect of joint family properties/coparcener properties, a father can represent his branch and at the same time, a partition taken place amongst members of erstwhile joint family/coparcenary, can be reopened or attacked on the ground of fraud, coercion and misrepresentation. Further in respect of partition which has taken place amongst members of joint family/coparcenery, one sharer is estopped from denying it, unless the conditions mentioned supra are present. 14. Further in respect of partition which has taken place amongst members of joint family/coparcenery, one sharer is estopped from denying it, unless the conditions mentioned supra are present. 14. In the instant case, as rightly pointed out on the side of the respondents/defendants, on 15.01.1976, among three sons of erstwhile Raja, a family arrangement has been made. It is an everlasting principle of law that in respect of joint family properties/coparcenery properties, a family arrangement can be effected. Further in recognition of the family arrangement on 15.01.1976, a partition list has come into existence amongst the three brothers. Since a partition has already taken place among three brothers mentioned supra, the plaintiffs cannot institute the present Suit by way of saying that the first plaintiff by birth is entitled to sue for partition. 15. Further as rightly pointed out on the side of the respondents/defendants on the basis of family arrangement dated 15.01.1976 the father of the first plaintiff has executed various sale deeds and registration copies of the same have been marked as Exs.B5 to B10 and the first plaintiff himself has executed a sale deed dated 25.02.1990 and a registration copy of the same has been marked as Ex.B11. 16. In Ex.B11 at page - 2, it is recited as follows: "And whereas upon the demise of the said His Highness Marthanda Bairava Thondaman all those properties devolved on his Highness Sri Rajagopala Thondaman who succeeded to the throne of Pudukottai State in 1928 and had been in his absolute possession and enjoyment. And whereas on 26.09.1969 the said His Highness Sri Rajagopala Thondaman had made a lawful declaration putting his agricultural lands and the house properties including the schedule mentioned property into common HOTPOTCH of the joint family consisting of himself and his two brothers Rajkumar Radhakrishna Thondaman and Rajkumar Vijaya Raghunatha Thondaman --- Meena V.R.Thondaman 2. Karthik R.Thondaman 4--- and whereas under an oral partition and family arrangement the joint family properties were divided into three parts and each brother was allotted and put on possession of each part of properties and the said fact was acknowledged and recorded on a document signed by all the three brothers. Karthik R.Thondaman 4--- and whereas under an oral partition and family arrangement the joint family properties were divided into three parts and each brother was allotted and put on possession of each part of properties and the said fact was acknowledged and recorded on a document signed by all the three brothers. And whereas under the said partition the schedule mentioned property along with other properties was allotted to the share late Vijaya Raghunatha Thondaman and he had been in exclusive possession and enjoyment of the same from the date of partition paying necessary taxes etc. in his own name." 17. Even a cursory look of the recitals found in Ex.B11, it is made clear that the first plaintiff has candidly admitted the factum of partition which has taken place in between his father and his two brothers. 18. Considering the fact that in Ex.B11, the first plaintiff has clearly admitted the factum of partition effected in between his father and his two brothers and also considering that Ex.B11 has been executed by the first plaintiff himself, it is needless to say that the plaintiffs cannot institute the present Suit for the relief of partition by way of suppressing the earlier partition which has taken place on 15.01.1976. 19. In fact, this Court has scanned the entire averments made in the plaint. No where it has been stated about the earlier partition which has taken place on 15.01.1976 between the father of the first plaintiff and his two brothers. Since with regard to properties of erstwhile joint family, a partition has already taken place and each sharer has acted upon the same, the plaintiffs cannot come and say that by way of birth, as a coparcener the first plaintiff is entitled to file the present Suit. 20. The trial Court after considering the replete evidence available on record as to the effect that already a partition has taken place between the father of the first plaintiff and his two brothers, has rightly non-suited the plaintiffs. 21. Even at the risk of jarring repetition, the Court would like to sum-up the following factual aspects. It has already been decided that a partition has taken place amongst three brothers on 15.01.1976 and the same has acted upon and even the first plaintiff on the strength of the said partition, has sold certain properties by virtue of Ex.B11. 21. Even at the risk of jarring repetition, the Court would like to sum-up the following factual aspects. It has already been decided that a partition has taken place amongst three brothers on 15.01.1976 and the same has acted upon and even the first plaintiff on the strength of the said partition, has sold certain properties by virtue of Ex.B11. Under the said circumstances, the plaintiffs cannot say that they are entitled to get shares in the suit properties. Therefore, viewing from any angle, the contention put forth on the side of the appellants/plaintiffs is of no use and altogether the present Appeal Suit deserves to be dismissed. 22. In fine, this Appeal Suit deserves dismissal and accordingly is dismissed without cost. The Judgment and decree passed in Original Suit No.78 of 2004 by the First Additional District Court (P.C.R.) Trichirapalli are confirmed. Connected Civil Miscellaneous Petition is also dismissed.