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2014 DIGILAW 1743 (MAD)

S. Karthikeyini v. R. Selvaranga Mudaliar

2014-06-26

G.M.AKBAR ALI

body2014
Judgment G.M. Akbar Ali, J. 1. Suit for partition and separate possession of the plaintiffs 2/6 shares directing the first defendant to pay a sum of Rs. 3,60,000/- being the plaintiff's 2/6th share in past mesne profits; directing the defendants to pay to the plaintiffs their future mesne profits; for permanent injunction restraining the defendants 2 to 5 from in any way alienating or dealing with any of the A and B Schedule properties. 2. The 1st defendant (since died) was the father of the plaintiffs and the defendants 2 to 5. The defendants 2 to 4 are brothers and the plaintiffs 1, 2 and the 5th defendant are sisters. Originally, the suit property belong to one Dhanakotiammal, the grand mother of the plaintiffs. She executed a settlement deed dated 14.3.1959 in favour of her three daughters viz. Duraikannammal, Kamalammal and Shanmugha Vadivu, the mother of the plaintiffs. Through the same settlement deed, she also settled the other properties being agricultural lands only in favour of Shanmugha Vaidvu. A partition deed dated 28.4.1980 was executed partitioning the property between the legal heirs of the three sisters, whereby, premises No. 24, South Mada Street, Mylapore, Chennai was allotted to the plaintiffs and the defendants. 3. The 1st defendant, being the father, was managing the property. The plaintiffs got married in the year 1978 and the 1st plaintiff settled at Pondicherry with her husband and the 2nd plaintiff settled at Chennai. Along with the father the plaintiffs and the defendants are entitled for 1/7th share each. The 1st defendant died on 27.11.2003 and thereby, the plaintiffs and the defendants 2 to 5 each became entitled for 1/6th share. The defendants 2 to 4 did not render accounts for the income from the property which is let out to various tenants. 4. The plaintiffs requested the defendants to partition the property and also render the accounts but they were evading. Therefore, the suit is filed for partition and for mesne profits, past and future. 5. The defendants 2 and 3 resisted the suit and the 4th defendant filed a written statement, claiming his 1/6th share. The case of the defendants 2 and 3 is as follows: 6. Except the 1st item in “A” schedule property, the other properties are not available for partition. 5. The defendants 2 and 3 resisted the suit and the 4th defendant filed a written statement, claiming his 1/6th share. The case of the defendants 2 and 3 is as follows: 6. Except the 1st item in “A” schedule property, the other properties are not available for partition. These properties was already either sold by the 1st defendant in his life time or they have not been divided between the heirs of one Dhanakotiammal and the heirs of Shanmughavadivu. Therefore, the suit is bad for non-joinder of necessary parties. 7. There is already a suit filed in O.S. No. 73 of 2010 challenging a sale deed executed by the legal heirs of one Duraikannuammal and Kamalammal, who are the sisters of Shanmgha Vadivu. As far as the 1st item of the property is concerned, 1st defendant has already executed a Will dated 5.6.2002 and thereby bequeathing the his share in the property in favour of the defendants 2 and 3. Therefore, the plaintiffs or the other defendants have no right in the property. Based on these averments, the following issues are framed for trial:- 1. Whether the plaintiffs are entitled to 2/6th (1 1/3) share in “A” schedule property of the plaintiff and also for separate possession by metes and bounds? 2. Whether the plaintiffs are entitled to mesne profits as claimed in the plaint? 3. Whether the plaintiffs are entitled to permanent injunction restraining the defendants 2 to 5, their men and agents from alienating or dealing with the “A' schedule of properties? 4. Whether the fourth defendant is entitled to 1/6th share in the suit property? 5. To what relief the parties are entitled? 8. To prove the case of the plaintiffs, the 2nd plaintiff was examined as P.W.1. Exs. P.1 to P.6 were marked. The 2nd defendant was examined as D.W.1 and Exs.D.1 to D.7 were marked. 9. Pending arguments, the plaintiffs have given up their claim of relief of partition and other reliefs in respect of “B” schedule properties. It is further admitted that Sl. Nos. E and F in Item No. 2 and Sl. Nos. 6 and 7 in Item No. 4 of “A” schedule property do not belong to their mother or to any other family member and they have given up their relief. It is further admitted that Sl. Nos. It is further admitted that Sl. Nos. E and F in Item No. 2 and Sl. Nos. 6 and 7 in Item No. 4 of “A” schedule property do not belong to their mother or to any other family member and they have given up their relief. It is further admitted that Sl. Nos. 1 to 5 in Item No. 4 of “D” schedule property do not exclusively belong to their mother but a joint family property of their mother and sister. Therefore, the relief against those properties are also not pressed. 10. The claim in “B” schedule was also given up in the written arguments by stating that the said property had been kept for charitable purposes by one Dhanakotiammal, The grand mother. Therefore, only in the “A” schedule property and that too, after giving up the claim as aforesaid, the suit is pressed for partition. Therefore, the issues 1 and 4 are to be taken up for consideration at first instance. 11. Issue Nos. 1 and 4 Mr. N. Nagu Shah, learned counsel for the plaintiffs submitted that originally the suit A and B schedule properties and other properties belong to one Dhanakotiammal, the maternal grand mother of the plaintiffs. The said Dhanakotiammal had four daughters viz. Kannammal, Kamalammal, Duraikannu Ammal and Shanmuga Vadivu. Under Ex.P.2, a registered settlement deed dated 14.3.1959, the said Danakodi Ammal settled Item No.1 of “A” schedule property, house and land in Old No. 23 New No/24 South Mada St, Mylapore, in favour of her three daughters viz. Duraikannu Ammal, Kamalammal and Shanmugavadivu, the mother of the plaintiffs. She also settled the other houses, vacant sites and agricultural lands situated Chenglepet, which are item Nos. 2 to 4 of “A” schedule in favour plaintiff's mother Shanmuga Vadivu by way of EX.P.2 settlement deed. Therefore, the plaintiff's mother had become absolute owner in item No.2 to 4 of “A” schedule and 1/3rd share in Item No.1 in “A” schedule. Shanmugha Vadivu died intestate on 29.3.1965 leaving behind her husband, the 1st defendant, the plaintiffs and the defendants 2 to 5 as her legal heirs. By a partition deed dated 28.4.1980 under Ex.P.3 between the legal heirs of Shanmugha Vadivu and the legal heirs of Duraikannu Ammal and one Kamalammal, item No. 1 of “A” schedule was allotted to the share of the plaintiffs and the defendants. Therefore, they are entitled 1/7th share. 12. By a partition deed dated 28.4.1980 under Ex.P.3 between the legal heirs of Shanmugha Vadivu and the legal heirs of Duraikannu Ammal and one Kamalammal, item No. 1 of “A” schedule was allotted to the share of the plaintiffs and the defendants. Therefore, they are entitled 1/7th share. 12. Pending suit, the 1st defendant died on 27.11.2003 and therefore, now they are entitled to 1/6th share each. 13. The 1st defendant, being the head of the family, was managing all the properties. However, after his death, the defendants 2 and 3 are managing. The 1st item of the property was yielding rental income as it was let out for commercial purposes to various tenants. The plaintiffs issued a notice dated 24.5.2002 under Ex.P.4 to the 1st defendant who sent a reply under Ex.P.5 which prompted the plaintiff to issue Ex.P.6 Rejoinder. 14. Learned counsel submitted that according to the defendants, the Chennai property was demolished and reconstructed by the 1st defendant out of his own funds and therefore, he is the owner of the building and only in the land the plaintiffs can claim a share. It was also contended that under a Will dated 5.6.2002, the 1st defendant had bequeathed the building to his sons and also his shares in other properties. The learned counsel submitted that the defendants have failed to prove that the building was constructed by the own funds of the 1st defendant as it was constructed from the advances received from various tenants. 15. The learned counsel further submitted that the alleged will dated 5.6.2002 was not probated and it has no value and the same was also not proved in accordance with law. The learned counsel further submitted that the contention that, some of the “A” schedule properties has already been sold by the 1st defendant during his life time, was not proved and any alienation by the defendants 2 and 3 is not binding on the plaintiffs. Therefore, the learned counsel submitted that a suit for partition in Item No.1 of “A” schedule property and other items which are available for partition has to be granted. He relied on the following case laws. (i) Venkatachalam vs. Siddan and others, 2004 (1) MLJ 130 (ii) A. Appalaswamy vs. M. Anjaneyulu, AIR 1974 Andhra Pradesh 268 (iii) M/s. Hulas Raj Baij Nath vs. Firm K.B. Bass and Co. He relied on the following case laws. (i) Venkatachalam vs. Siddan and others, 2004 (1) MLJ 130 (ii) A. Appalaswamy vs. M. Anjaneyulu, AIR 1974 Andhra Pradesh 268 (iii) M/s. Hulas Raj Baij Nath vs. Firm K.B. Bass and Co. AIR 1968 SC 111 (iv) K.S. Bhoopathy and others vs. Kokila and others, 2000 (5) SCC 458 16. On the other hand, Mr. Venkateswaran, the learned counsel for the defendants 2,3 and 5 would submit that the suit should be dismissed in limne for suppression of material facts which are as follows:- (a) 65 items of property has been listed as “B” schedule in the plaint. These properties are situated at Kolambakkam village. These items were listed as “J” schedule property in settlement deed dated 14.3.1959 executed by Dhanakotiammal and marked as Ex.P.2. These properties are set apart for charitable purposes. However, the plaintiffs and the legal heirs of one Dhanakotiammal sold the properties under Ex.D.2 to D.4 on 17.8.2008 and have committed fraud and the properties are not available for partition. (b) A suit is filed in O.S. No. 73 of 2010 challenging the above sale. These properties were sold, pending suit. The plaintiffs have also mortgaged certain properties under Ex.D.1 prior to filing of the suit. Therefore, it is clear abuse of process of law and fraud played upon the court. The suit is also not maintainable for non-joinder of legal heir of Dhanakotiammal, who are the necessary parties. The plaintiffs knew well that certain properties were already disposed of prior to suit and several extents were acquired for National Highway and therefore, they are not available for partition. (c) Certain properties were sold by the 1st defendant for family necessities and they are also not available for partition. Some of the properties are still in the name of Dhanakotiammal and the other legal heirs of her daughters who are not added as parties. (d) The 1st defendant had executed a Will dated 5.6.2002 which is marked as Ex.D.7 and the 1st item of schedule “A” was bequeathed to the sons and the daughters have no right in the building. (e) The 1st defendant has constructed a commercial complex in the first item of A schedule property out of his own funds and he has bequeathed the same to the sons and therefore, the plaintiffs are not entitled for any share. 17. (e) The 1st defendant has constructed a commercial complex in the first item of A schedule property out of his own funds and he has bequeathed the same to the sons and therefore, the plaintiffs are not entitled for any share. 17. The learned counsel relied on the following case laws:- (i) S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs. and Others, 1994(1) SCC 1 (ii) Ranipet Municipality Commissioner vs. M. Shamsheerkhan, 1997 (2) LW 761 (iii) ALPR Periakaruppan Chetti vs. RMPR Arunachalam Chetti and another, AIR 1927 Mad 676 18. Heard and perused the materials available on record. 19. The relationship between the parties are admitted. The entire claim of the parties emanates from Ex.P.2 settlement deed dated 14.3.1959. There is a partition deed Ex.P.3 dated 28.4.1980. The properties settled in favour of one Shanmugha Vadivu, the mother of the plaintiffs and the defendants 2 to 5 are directed to be partitioned between the children. The main contention is only on the valuable properties of item no.1 of Schedule “A” which is a commercial complex at South Mada Street, Mylapore. Though several properties were claimed in Schedule No. “A” the plaintiffs have given up their right in some of the items. 20. Similarly, the claim was totally given up in “B” schedule property which was set apart for charitable purposes by original owner Dhanakotiammal. There is an allegation by the defendants that the plaintiffs have colluded with the legal heirs of one Dhanakotiammal and sold some of the properties in “B” schedule under Ex.D.2 to D.4. It is also claimed that some of the items were acquired by the Government and some of the properties were already sold by the father of the plaintiffs and the defendants for family necessities. 21. The contention of the contesting defendants 2 and 3 is that the plaintiffs have suppressed many facts and sold the common properties and therefore, they cannot maintain a suit as there was a fraud on the part of the plaintiffs. 22. He relied on a decision reported in Ranipet Municipality Commissioner vs. M. Shamsheerkhan, 1997 (2) LW 761 . The above decisions relates to abuse of process of court. They also relied on a decision reported in S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs. 22. He relied on a decision reported in Ranipet Municipality Commissioner vs. M. Shamsheerkhan, 1997 (2) LW 761 . The above decisions relates to abuse of process of court. They also relied on a decision reported in S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs. and Others, 1994(1) SCC 1 for the preposition that suppression of execution of certain documents amount to fraud. However, this court is not inclined to agree with the defendants as the above said judgment is not helpful to the defendants on the facts and circumstances of the case. 23. According to the defendants the plaintiffs have sold certain items in “B” schedule property which was set apart for charitable purpose by the original owner. It is admitted that a suit in OS No. 79 of 2010 is pending challenging such alienation. Therefore, this court is not inclined to accept the said contention of the defendants and interfere with the said properties. 24. The defendants have also filed Memo, raising certain objections against the plaintiffs, who have filed certain applications or memos, either to withdraw the suit or not pressing such claims on certain items. However, the fact remains that the present suit is mainly contested only for the item No. 1 of “A” schedule property which was absolute property of Shanmughavadivu on the basis of settlement deed dated 14.3.1959 and later allotted to the parties under Ex.P.2 and a partition deed dated 28.4.1980 under Ex.P.3 25. The contention of the defendants is that the commercial building was constructed by the father on his own income and he had bequeathed the same in favour of the sons by a Will dated 5.6.2002 which is marked as Ex.D.7. The plaintiffs have attacked such contentions on two grounds - firstly, the building was not constructed by the father on his own income but from the income of the rental advancement, he received from various tenants and secondly, the Will was neither probated nor proved as required by law. Therefore, the Will dated 5.6.2002 has to be looked into for its validity. 26. Ex.D.7 is a Will dated 5.6.2002. Therefore, the Will dated 5.6.2002 has to be looked into for its validity. 26. Ex.D.7 is a Will dated 5.6.2002. According to the Will, the 1st defendant had bequeathed his 1/7th share in the properties of his wife Shanmugha Vadivu and as far as the building in item No.1 in “A” schedule is concerned, he has claimed that the building is his exclusive property and had bequeathed the same. The Will was produced by D.W.1 who is the second defendant and one attesting witness viz. Parasuraman was examined to speak about the Will. 27. The said witness would state that at the time of execution of Will, the executant was healthy and in a sound state of mind and he executed and signed the Will in his presence and he had also attested in the presence of the executant. Therefore, it cannot be said that the Will was not proved in accordance with law. As stated earlier, the 1/7th share of the 1st defendant had been bequeathed to his sons excluding the daughters. 28. However, under the will, the 1st defendant had claimed that he had put up the commercial complex out of his own fund and bequeathed the building to the sons excluding the daughters. However, the same was denied by the plaintiffs stating that it was built from the advance received from various tenants. Whether the 1st defendant has constructed the building out of his own money or from the rental income, this court is of the considered view that the value of the building had merged with the land and it cannot be divided separately. Any improvement or investment made by one sharer in a common property has to be considered as that of the development of entire property and the contention of the plaintiffs that the building was constructed from the rental income and the advances from various tenants cannot be brushed aside likely. The Will is to be accepted only to an extent that the 1st defendant had bequeathed his 1/7th share to his sons excluding his daughters. 29. A contention was raised by the defendants 2 and 3 that the suit has to be dismissed as there was a application or a memo filed by the plaintiffs for withdrawing the suit for filing a fresh suit. 29. A contention was raised by the defendants 2 and 3 that the suit has to be dismissed as there was a application or a memo filed by the plaintiffs for withdrawing the suit for filing a fresh suit. According to the defendants, a new case was set out by the plaintiffs by giving up certain rights in the property. 30. It is admitted that “B” schedule property was not available for partition as it was “J” schedule property in Ex.P.2 a settlement deed of the year 1959 of Dhanakotiammal. Whether the plaintiffs have fraudulently alienated this property along with other heirs is not an issue before this court. Therefore, “B” schedule property is not available for partition and the plaintiffs have given up their claim. The plaintiffs have also given up their claim in Sl. Nos. E and F of item No.2 and Sl. Nos.1 to 7 of item no.4 which is described under sub schedule D of “A” schedule. 31. The defendant would state that item No. 4 of “A” schedule which are agricultural lands in Natham village are not available as it was acquired for National Highway. This was not disputed by the plaintiffs. Similarly, Sl. Nos.7 and 12 were acquired by Government and Sl. Nos.14 and 15 were already sold by the 1st defendant. 32. Though the plaint schedule was not amended by deleting the given up properties, this court is constrained to restrict the plaint as follows, as admitted by both the parties. 33. In “A” schedule Item No.1 and 2 and the sub schedule which are houses A to D are available and item No. 3 of “A” schedule, which is vacant site is also available partition. 34. There is confusion about item No.4 which comprised of sub schedule A to D and the plaintiffs have not clarified what are all the items available. They would state that they are giving up their claim in Sl. Nos. 1 to 7 which is named as sub schedule D of Item no.4 of main schedule “A”. But the defendants would state that the said item No.4 in entirety was not available and this was not disputed and therefore, this court holds that item no.4 in entirety is not available for partition. 35. As stated above, the relationship is admitted. The property in “A” schedule item Nos. But the defendants would state that the said item No.4 in entirety was not available and this was not disputed and therefore, this court holds that item no.4 in entirety is not available for partition. 35. As stated above, the relationship is admitted. The property in “A” schedule item Nos. 1 to 3 (except “E” and “F” of item No.2) are available for partition among plaintiffs and defendants 1 to 5. The plaintiffs and defendants 1 to 5 are entitled for 1/7th share each. The 1st defendant's 1/7th share has been bequeathed under Ex.D.7 to the defendants 2 to 4. Therefore, the plaintiffs are entitled for 1/7th share each. The first defendant's 1/7 share to be allotted to the defendants 2 to 4. 36. The 4th defendant has filed a Memo restricting his counter claim for partition in respect of “A” schedule property alone and gives up his counter claim for partition in respect of “B” schedule property and his counter claim is for his 1/6th of the share in the property. However, the 1st defendant has bequeathed his 1/7th share in favour of his three sons, which includes the 4th defendant also. He has not supported the claim of his brothers. However he is entitled to his 1/7 share and 1/3 in his father's 1/7 share. 37. The 1st item of “A” schedule has been let out to various tenants. It is also admitted that the construction has been put from and out of the rental incomes. Therefore, it is not appropriate for the plaintiffs to claim the past profits or income shares from the rents. However, they are entitled to future profits. 38. Since “A” schedule property except the items negatived, the plaintiffs are having 1/7th share, the defendants cannot alienate the property including the share of the plaintiffs. Therefore, they are entitled for limited prayer of injunction restraining the defendants not to alienate items 1 to 3 of “A” schedule property (except "E" and "F" of item No.2). These issues are decided accordingly. 39. Issue No.5. The plaintiffs are entitled for a preliminary decree dividing item Nos.1 to 3 of “A” schedule property except item se and f of item No.2 by metes and bounds into seven parts and be allotted to two such shares. The 4th defendant is entitled for 1/7th and 1/3 in 1/7 share of his father. The issues are decided accordingly. 40. The plaintiffs are entitled for a preliminary decree dividing item Nos.1 to 3 of “A” schedule property except item se and f of item No.2 by metes and bounds into seven parts and be allotted to two such shares. The 4th defendant is entitled for 1/7th and 1/3 in 1/7 share of his father. The issues are decided accordingly. 40. In the result, the suit is decreed and a preliminary decree is passed dividing item Nos. 1 to 3 of “A” schedule property except item se and of item No.2 by metes and bounds into seven parts and the plaintiffs be allotted two such shares. The 4th defendant is entitled for 1/7th share and 1/3rd share of his father. The parties are to work out their remedy of future Mesne profits in the final decree proceedings. No costs.