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2014 DIGILAW 1733 (MAD)

R. Santhi Alias Gowthami v. Nallammal (Deceased)

2014-06-26

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. This Second Appeal has been filed by R.Santhi @ Gowthami, who figured as the sole defendant in O.S.No.233 of 2000, which was filed by Nallammal, the deceased first respondent herein, on the file of the Sub-Court, Salem, for partition claiming half share in each one of Items 1 and 2 of the suit properties. 2. The claim of Nallammal was declined by the trial Court and the said suit came to be dismissed in its entirety by the learned Subordinate Judge, Salem by judgment and decree dated 19.01.2004. On appeal in A.S.No.91 of 2004 on the file of the District Court, Salem, the learned Principal District Judge reversed the findings of the trial Court, set aside the decree of the trial Court dismissing the suit and granted a preliminary decree directing division of the suit properties, both items 1 and 2, into two equal shares and allotment of one such share to Nallammal, the deceased first respondent herein. As against the reversing judgment and decree of the learned lower appellate Judge dated 14.02.2005 made in A.S.No.91 of 2004, the appellant herein (defendant) has preferred the present second appeal on various grounds set out in the grounds of second appeal. 3. During the pendency of the second appeal, the second item of the suit property was purchased by Respondents 2 and 3 from one of the parties to the appeal through the 4th respondent who acted as Power Agent of the vendor therein. Hence, by virtue of an order dated 01.11.2010, respondents 2 to 4 were impleaded. The first respondent Nallammal passed away during the pendency of the second appeal and pursuant to her death, her surviving son Venkatachalam (R5), Daughters, Tmt.Soudaram alias Shakunthala, Tmt.Vasantha (R6 & R7), wife and children of a predeceased son Devarajan, namely Kulanjai Ammal, Suresh and Ambika (R8 to R10) were impleaded as the legal representatives of Nallammal. Among the respondents 5 to 10, impleaded as legal representatives of Nallammal, the 6th respondent alone has entered appearance through very same counsel who had been engaged by the original respondent, namely R1-Nallammal and the other respondents, namely R5 and R7 to R10 have not chosen to enter appearance either in person or through counsel. 4. Among the respondents 5 to 10, impleaded as legal representatives of Nallammal, the 6th respondent alone has entered appearance through very same counsel who had been engaged by the original respondent, namely R1-Nallammal and the other respondents, namely R5 and R7 to R10 have not chosen to enter appearance either in person or through counsel. 4. So far as the 6th respondent is concerned, she claims to be the sole legal heir of Nallammal by virtue of the last Will dated 06.07.2010 (registered) allegedly left by Nallammal. As the decree declaring the share of the deceased first respondent Nallammal in the suit properties, alone is challenged in the second appeal by the appellant, this Court need not trouble itself with regard to the succession to the share of Nallammal by the persons claiming to be her legal heirs. Suffice to decide the sustainability of the decree passed by the lower appellate Court declaring the share of the first respondent Nallammal (deceased) to be half in each of the suit Items 1 and 2 and directing division of those items as prayed for. 5. The second appeal was admitted identifying and formulating the following to be the substantial question of law involved in the second appeal: “On the face of the admitted fact of pleading that item 1 was purchased by defendant and her husband is the lower appellate Court correct and justified in granting ½ share to the plaintiff in item 1 especially when plaintiff's son was entitled to only ½ share in item 1?” 6. The arguments advanced by Mr.T.Dhanasekaran, learned counsel for the appellant and by Mr. D.Shivakumaran, learned counsel for the contesting respondent, namely the 6th respondent are heard. The materials available on record are also perused. 7. In view of the admitted facts, the scope of the second appeal is very limited. Item 1 of the suit property is a house site along with superstructure. Item 1 of the suit property was purchased jointly by Ramalingam and his wife, namely the appellant herein, under a sale deed dated 28.11.1984 marked as Ex.B1. In the normal circumstances, both Ramalingam and his wife, namely the appellant herein, as co-owners, would have been entitled to ½ share each and on the death of Ramalingam, his ½ share would have devolved upon the appellant and the first respondent equally. In the normal circumstances, both Ramalingam and his wife, namely the appellant herein, as co-owners, would have been entitled to ½ share each and on the death of Ramalingam, his ½ share would have devolved upon the appellant and the first respondent equally. Thus, the first respondent would have been entitled to 1/4th share in the suit first item. Item 2 of the suit property is a vacant site. Admittedly, Item 2 of the suit property was owned absolutely by Nallammal. She made a gift of the same in favour of her son Ramalingam, who is none other than the husband of the appellant, under a registered settlement deed dated 27.10.1987, marked as Ex.B2. Of course, after executing the said settlement deed, the deceased first respondent Nallammal did have no right or title in respect of the second item. But the said Ramalingam admittedly died intestate leaving the appellant (his wife) and the deceased Nallammal, the first respondent (mother) as his legal heirs. As such, the appellant/defendant and the deceased first respondent /plaintiff became entitled to ½ share each in Item 2 of the suit property. 8. However, the defendant, who is the appellant in the second appeal, took a stand that after having parted with the property towards her son under Ex.B2, she relinquished her right to succeed to the properties of her son and such relinquishment was made during the life time of Ramalingam. Instead of claiming 1/2 share in item 2 and 1/4 share in item 1, Nallammal, the deceased first respondent chose to make a claim that she was entitled to ½ share in each one of Items 1 and 2 of the suit properties. On the other hand, her claim was resisted contending that the deceased first respondent Nallammal, even during the life time of her son Ramalingam relinquished her right to succeed to the properties of Ramalingam and hence she was not entitled to stake any claim to a share in the suit properties. The learned trial Judge chose to accept the defence plea of the appellant herein which resulted in the dismissal of the suit in its entirety. 9. The plea of the appellant / defendant was that an expectation to succeed to the estate of a living person in case of his death was relinquished. Such a contention is against Section 6 subclause (a) of the Transfer of Property Act, 1882. 9. The plea of the appellant / defendant was that an expectation to succeed to the estate of a living person in case of his death was relinquished. Such a contention is against Section 6 subclause (a) of the Transfer of Property Act, 1882. Section 5 defines transfer of property. The term “Transfer of Property” means an act by which a living person conveys property, in present or in future, to one or more or other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act. 10. Section 6(a) makes it clear that a heir-apparent succeeding to an estate, or a chance of a relation obtaining a legacy on the death of a kinsman or any other mere possibility of a like nature, cannot be transferred. What the appellant had contended was that a mere chance of succeeding to the estate of Ramalingam was relinquished. Hence, if at all any such relinquishment was attempted, the same could not have effected a valid transfer and such relinquishment shall be ineffective and the same cannot be projected against the said person when he or she makes a claim as the legal heir of the other person on the principle of succession to his estate. Succession to the estate of a person opens only on the death of such person. Succession to any relative, whatever be the decree of proximity, shall be only an expectation to succeed in case such person pre-deceases him. Such a chance of succession cannot be the subject matter of transfer either by way of sale or by way of gift or by way of relinquishment. 11. The learned trial Judge, without properly considering the principle of law on this aspect, erroneously accepted the plea of the appellant herein/defendant and the same resulted in the dismissal of the suit. Of course, the learned lower appellate Judge correctly held that the plea of relinquishment could not stand and it was not maintainable and that the share of Nallammal, the first respondent herein (deceased) in the suit properties as a legal heir of son Ramalingam stood unaffected. Of course, the learned lower appellate Judge correctly held that the plea of relinquishment could not stand and it was not maintainable and that the share of Nallammal, the first respondent herein (deceased) in the suit properties as a legal heir of son Ramalingam stood unaffected. However, the learned lower appellate Judge, without considering the admitted fact that the first item of the suit properties had been purchased jointly by Ramalingam and his wife, namely the appellant herein, and Ramalingam died leaving only an undivided half share in the suit first item, chose to arbitrarily hold that the first respondent (deceased) was entitled to ½ share in the entire first item. As rightly contended by the learned counsel for the appellant, the said mistake is patent and the same has got to be corrected by this Court in exercise of its appellate power. 12. As pointed out supra, since the first item of the suit properties had been purchased jointly by Ramalingam and his wife namely the appellant herein, each one of them was entitled to an undivided half share in Item 1. On the death of Ramalingam, his half share devolved equally upon his wife, namely the appellant herein and his mother, namely the deceased first respondent. Thus, the appellant became entitled to an undivided 3/4th share and the deceased first respondent became entitled to 1/4th share in the suit first item. 13. So far as Item 2 is concerned, the appellate Court has rightly held that the deceased first respondent was entitled to half share. The lower appellate Court was also right in holding that the deceased first respondent was entitled to a decree for partition directing division of the suit properties and separation of the first respondent's share from the share of the appellant. The only mistake committed by the lower appellate Court is to ignore the fact that Ramalingam did have only an undivided ½ share in suit first item and the same resulted in the erroneous finding that the first respondent was entitled to half share in Item 1 also. The only mistake committed by the lower appellate Court is to ignore the fact that Ramalingam did have only an undivided ½ share in suit first item and the same resulted in the erroneous finding that the first respondent was entitled to half share in Item 1 also. The said finding requires interference and the same deserves to be modified by holding that the first respondent Nallammal (deceased) was entitled to a decree for division of the suit first item into four equal shares and for the division of the second item into two equal shares and allotment of one such share each in Items 1 and 2 to her. 14. The above said discussions will be enough to provide an answer to the substantial question of law on which the appeal came to be admitted and it need not be stated that the answer shall be in the negative and in favour of the appellant herein. As pointed out in the preliminary portion of this judgment, the question of further succession to the share of Nallammal need not be gone into in this second appeal and the parties shall be free to make their claim before the trial Court in the final decree proceedings. In the result, the second appeal is allowed in part. The decree of the lower appellate Court dated 14.02.2005 made in A.S.No.91 of 2004 setting aside the decree of the trial Court dated 19.01.2004 and granting a preliminary decree directing division of both the items of suit properties into two equal shares and allotment of one such share to the first respondent/plaintiff, is modified by directing division of first and second item of the suit properties into four equal shares and two equal shares respectively and allotment of one such share in each one of the items to the share of the first respondent/plaintiff. However, there shall be no order as to costs.