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2015 DIGILAW 2581 (MAD)

Thilagarani v. Rajeswari Ammal

2015-07-22

R.MALA

body2015
JUDGMENT The First Appeal arises out of the judgment and decree against the judgment and decree dated 13.01.2000 in O.S.No.83 of 1995 on the file of the Additional Subordinate Court, Mayiladuthurai. 2. The averments made in the plaint are as follows: The appellant as a plaintiff filed a suit for partition and separate possession of 1/6th share in the suit properties stating that item Nos.1 and 2 of 'A' Schedule properties were purchased out of the income of Ramasamy Chettiar, who was working at Malaysia. He died intestate leaving behind the plaintiff and the defendants 1 to 5 as his legal heirs on 15.01.1982. After the death of the plaintiff's father, item Nos.3 and 4 of 'A' Schedule properties were purchased out of the income derived from item Nos.1 and 2 of 'A' schedule properties in the name of the first defendant. So, it was enjoyed by all the parties. They sold the property in the year 1994 in favour of the 6th defendant. Hence, she pray 1/6th share in item Nos.1 to 4 of 'A' schedule properties. Item Nos.1 to 5 in 'B' schedule properties were purchased out of the income of the plaintiff's father and item No.6 has been purchased in the name of the 4th defendant out of the income derived from his father's property. So, she is entitled to 1/6th share and she is also entitled to 1/6th share in the jewels and also bank deposits. Hence, she pray for the decree. 3. The gist and essence of the written statement filed by the first defendant adopted by the defendants 2 to 5 are as follows: Item Nos.3 and 4 were purchased out of her own income by the first defendant. During the lifetime of the plaintiff's father, namely, Ramasamy Chettiar, he executed the will bequeathing the properties in favour of his wife, the first defendant without the power of alienation, i.e. life estate and vested reminder was given to the defendants 2 to 4, namely, his sons. After his death, the sons of Ramasamy Chettiar alone was entitled to the share. To discharge their loan, 'A' schedule properties have been sold and the marriage of the plaintiff has been performed in the year 1992. At that time, 60 sovereigns of jewels were given and Rs.30,000/- has been paid as dowry and the marriage has been performed with a cost of Rs.3,57,000/-. To discharge their loan, 'A' schedule properties have been sold and the marriage of the plaintiff has been performed in the year 1992. At that time, 60 sovereigns of jewels were given and Rs.30,000/- has been paid as dowry and the marriage has been performed with a cost of Rs.3,57,000/-. Hence, she is not entitled to any share. He further submitted that the properties in C, D and E schedule are not available. Hence, he prayed for dismissal of the suit. 4. The 9th defendant filed a written statement stating that there is no such deposit available with them. 5. The first defendant filed additional written statement stating that item No.1 of 'B' schedule properties is the joint family property and as per Hindu Succession Act, female member is not entitled to any share. Hence, the plaintiff is not entitled to any share in item No.1 of 'B' schedule properties. 6. The Trial Court after framing necessary issues and considering the oral and documentary evidence granted preliminary decree in respect of item Nos.1 and 2 of 'A' schedule properties, item Nos.2 to 5 of 'B' schedule properties, item Nos.1 and 2 of 'G' schedule properties and the amount deposited in Indian Bank, Tharangambadi in Savings Bank A/c No.4653 that the plaintiff is entitled to 1/6th share. It was further stated to deduct the amount spent for the plaintiff's marriage and value of 15 sovereigns of jewels and dowry amount of Rs.20,000/-. Against which, the present appeal has been preferred. 7. The learned counsel appearing for the appellant would submit that the appellant is entitled to partition and separate possession in respect of item Nos.3 and 4 of 'A' schedule properties and item Nos.1 and 6 of 'B' schedule properties. After the amendment of Section 23 of Hindu Succession Act, female is entitled to share in dwelling house. Hence she is entitled to share in item No.1 of 'B' schedule properties and sought for decree in respect of C, D and E schedule properties. He further submits that no deduction should be made for marriage expenses. To substantiate his arguments, he relied upon the judgment reported in 2012 (8) MLJ 158 (Paneerselvam and others vs. Mohana and another). Hence, he prayed for setting aside the judgment and decree of the Trial Court. 8. He further submits that no deduction should be made for marriage expenses. To substantiate his arguments, he relied upon the judgment reported in 2012 (8) MLJ 158 (Paneerselvam and others vs. Mohana and another). Hence, he prayed for setting aside the judgment and decree of the Trial Court. 8. Resisting the same, the learned counsel appearing for the respondents would submit that the properties in item Nos.3 and 4 of the 'A' schedule properties belonging to the mother/first defendant, she purchased the same after the death of the plaintiff's father out of her own money. So, it is her separate property. That factum was rightly considered by the Trial Court. He further submitted that item No.6 of 'B' schedule properties is the separate property of 4th defendant, namely, Rajendran, who is the junior member of the joint family and he purchased the same out of his separate income. Hence, the appellant/plaintiff is not entitled to any share in the property. He would further submitted that the Trial Court has rightly considered that she is entitled to deduct Rs.20,000/-, namely, the dowry amount, the marriage expenses and the value of 15 sovereigns of jewels. To substantiate his arguments, he relied upon the judgment reported in 2010 (1) LW 802 (G.Sekar vs. L.Geetha and others). Hence, he prayed for dismissal of the appeal. 9. Considered the rival submissions made on both sides and perused the material records and both oral and documentary evidence. 10. After hearing the arguments of both sides counsel, the following points for determination are framed: 1. Whether the appellant is entitled to share in item Nos.3 and 4 of 'A' schedule properties? 2. Whether the appellant is entitled to share in item No.1 of 'B' schedule properties? 3. Whether the Trial Court finding that item No.6 of the 'B' schedule properties is the separate property of Rajendran is sustainable? 4. Whether the Trial Court finding that to deduct Rs.20,000/- and value of 15 sovereigns of jewels in the share allotted to the plaintiff is sustainable? 5. Whether the appellant is entitled to share in C, D and E schedule properties? 6. Whether the judgment and decree of the Trial Court is sustainable? 7. To what relief the appellant is entitled to? Point No.1 : 11. The learned counsel appearing for the appellant would submit that item Nos.3 and 4 has been purchased as per Ex.A9 on 21.05.1982. 6. Whether the judgment and decree of the Trial Court is sustainable? 7. To what relief the appellant is entitled to? Point No.1 : 11. The learned counsel appearing for the appellant would submit that item Nos.3 and 4 has been purchased as per Ex.A9 on 21.05.1982. The mother of the appellant/plaintiff, namely, the first defendant/first respondent has not independent income and so, the properties have been purchased out of the income derived from the appellant's father property. That factum was not considered by the Trial Court. It is pertinent to note that P.W.1, in her cross examination has stated that he father returned from Malaysia in the year 1973 and after ten years, he died. But admittedly during that period, nothing has been purchased. Then only the mother, namely, the first respondent/first defendant has purchased the item Nos.3 and 4 of 'A' Schedule properties. In Ex.A9, it was stated that it was purchased for Rs.20,000/- and it was specifically mentioned, that Rs.10,000/- has been paid at the time of registration before the Registrar by the first defendant. Furthermore, at the time of purchase, the appellant/plaintiff was in the house and she got married in the year 1992 only. In such circumstances, I am of the view that the Trial Court has rightly held that the property has been purchased out of the finds of the first respondent and so, she is not entitled to any share in item Nos.3 and 4 of 'A' schedule properties. Further, there is no reason has been assigned why the property has been purchased in the name of the female member while the elder son has been available. In such circumstances, I am of the view that item Nos.3 and 4 of 'A' schedule properties is the separate property of the appellant's mother. So, I do not find any reason to interfere with the finding of the Trial Court. The Trial Court has rightly held that the will alleged to be executed by the father, Ex.B1 was disbelieved by the Trial Court. Against which no appeal has been preferred. So, I do not find any reason to interfere with the finding of the Trial Court. The Trial Court has rightly held that the will alleged to be executed by the father, Ex.B1 was disbelieved by the Trial Court. Against which no appeal has been preferred. So, I am of the view that the Trial Court has rightly granted the decree in favour of the appellant in respect of item Nos.1 and 2 of 'A' schedule properties and declined to grant preliminary decree of partition in respect of item Nos.3 and 4 of 'A' schedule properties, which stands in the name of the mother. So, the appellant is not entitled to any share in item Nos.3 and 4 of 'A' schedule properties. Point No.1 is answered accordingly. Point No.2 : 12. Admittedly, item No.1 of 'B' schedule properties was dwelling house. As per Section 23 of Hindu Succession Act, before amendment female heir is not entitled to any share until the male heirs choose to divide their respective shares therein. But there was an amendment in the Hindu Succession Act (Act 3 of 2005) which came into effect on 09.09.2005 and thereby Section 23 has been omitted. The judgment and decree of the Trial Court has been passed on 13.01.2000 and at that time, Section 23 of the Hindu Succession Act is in force. Hence, the Trial Court has rightly dismissed the same. But now the contention of the learned counsel appearing for the appellant is that now the prevailing legal position is that the female heir is also entitled to share in the dwelling house. Hence, she is entitled to 1/6th share in item No.1 of 'B' schedule properties. It is appropriate to consider the decision relied upon by the learned counsel appearing for the respondents 1, 3 and 6 reported in 2010 (1) LW 802 (G.Sekar vs. L.Geetha and others), wherein it was held that institution of suit is not barred and what is barred is only partition by metes and bounds. But the above citation is not applicable to the facts of the present case because after the Act 3 of 2005 came into existence, Section 23 of Hindu Succession Act has been deleted. In such circumstances, the appellant/plaintiff is entitled to share in dwelling house. But the above citation is not applicable to the facts of the present case because after the Act 3 of 2005 came into existence, Section 23 of Hindu Succession Act has been deleted. In such circumstances, the appellant/plaintiff is entitled to share in dwelling house. Even though at the time of passing the judgment by the Trial Court she is not entitled to any share, but now the judgment was under challenge. During that period, Act 3 of 2005 came into existence and Section 23 of the Hindu Succession Act has been omitted. So, I am of the view that she is entitled to 1/6th share in item No.1 of 'B' schedule properties. Point No.2 is answered in favour of the appellant. Point No.3 : 13. It is pertinent to note that item No.6 of 'B' schedule property has been purchased by the 4th defendant, Rajendran under the sale deed Ex.A10 dated 28.06.1990. P.W.1, in her evidence she has admitted that from the year 1975 onwards her brother was working in the Bank and he is entitled to only commission and not salary. Her brother was working in the jewellery shop from 1994. But whereas in her cross examination, she has denied the suggestion that Rajendran was working in jewellery shop from 1985. She has also denied that after he joined the jewellery shop then only the property has been purchased. But the said Rajendran is not the eldest son of the family. If the property has been purchased in the name of elder Karth of the family, the presumption is that it is a joint family property. But he is a third brother/fourth defendant and he purchased the property out of his own income. It is the duty of the person who pleaded that the property is the joint family property has to prove the same. Hence, it is the duty of the appellant/plaintiff to prove that item No.6 of 'B' Schedule properties is the joint family property. But she has not let in any evidence in respect of the source of income. In such circumstances, the Trial Court has considered the evidence and came to the correct conclusion that it is purchased out of the separate income of the 4th respondent/4th defendant. So, I am of the view that item No.6 of 'B' schedule properties is the separate property of the appellant's brother Rajendran, 4th respondent herein. In such circumstances, the Trial Court has considered the evidence and came to the correct conclusion that it is purchased out of the separate income of the 4th respondent/4th defendant. So, I am of the view that item No.6 of 'B' schedule properties is the separate property of the appellant's brother Rajendran, 4th respondent herein. Hence the appellant/plaintiff is not entitled to any share in item No.6 of 'B' schedule properties. Point No.3 is answered against the appellant. Point No.4 : 14. The learned counsel appearing for the appellant would submit that as per Section 3 of Hindu Adoption and Maintenance Act the father is liable to make out the expenses of marriage of his daughter. So, the Trial Court without considering the same has passed the judgment stating to deduct Rs.20,000/- for dowry and value of 15 sovereigns of jewels. To substantiate the same, the learned counsel appearing for the appellant relied upon the decision reported in 2012 (8) MLJ 158 (Paneerselvam and others vs. Mohana and another), wherein it was held that in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage, as per which, it is the bounden duty of the Hindu father to give his daughter in marriage by providing her with proper necessaries in commensurate with his status. It is appropriate to incorporate paragraph No.13 of the judgment, which reads as follows: “12. At this juncture, it is worthwhile to observe that undeniably and incontrovertibly, Palanivelu himself during his life time conducted the marriages of both his daughters. I recollect and call up Section 3 of the Hindu Adoptions and Maintenance Act, 1956. 3. Definitions-In this Act, unless the content otherwise requires- a).... b)... (i)... (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage, as per which, it is the bounden duty of the Hindu father to give his daughter in marriage by providing her with proper necessaries in commensurate with his status. 13. 3. Definitions-In this Act, unless the content otherwise requires- a).... b)... (i)... (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage, as per which, it is the bounden duty of the Hindu father to give his daughter in marriage by providing her with proper necessaries in commensurate with his status. 13. As such, I am at a loss to understand and also there is no knowing of the fact, as to how D1, being the son of Panneerselvam and brother of the plaintiff, could venture to assert and claim that because the plaintiff was given in marriage with Seervarisai, she should be satisfied with that and that she was not entitled to any share in the suit properties.” 15. Admittedly, the appellant's father died in the year 1983 and her marriage has been performed in the year 1992. Furthermore, it is pertinent to note that no property has been sold for meeting out the marriage expenses and admittedly no such averment in the sale deed. It is appropriate to incorporate section 3 of Hindu Maintenance and Adoption Act, which is as follows: “3. Definitions-In this Act, unless the content otherwise requires- a)...... b) “maintenance” includes- (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage; 16. So, I am of the view that the above citation will not be applicable to the facts of the present case because the appellant's marriage has been performed by her family members. In such circumstances, on the date of death of the appellant's father, succession opens. But admittedly the property has been sold after the marriage has been performed in the year 1994 under Exs.A11 to A13. So, I am of the view that the marriage expenses shall not be deducted while granting share in item Nos.1 and 2 of 'A' schedule properties and item Nos.1 to 5 of 'B' schedule properties. So, the Trial Court has committed error in passing such an order. Hence, the judgment and decree of the Trial Court that the appellant/plaintiff is entitled to partition subject to deduction of Rs.20,000/- and value of 15 sovereigns of jewels is hereby set aside. Point No.4 is answered in favour of the appellant. Point No.5 : 17. So, the Trial Court has committed error in passing such an order. Hence, the judgment and decree of the Trial Court that the appellant/plaintiff is entitled to partition subject to deduction of Rs.20,000/- and value of 15 sovereigns of jewels is hereby set aside. Point No.4 is answered in favour of the appellant. Point No.5 : 17. In respect of C, D and E schedule properties, there is no evidence to show that the properties are available in the family. In such circumstances, the Trial Court has rightly held that she is not entitled to any share because there is no evidence to show that those items are available. In respect of the amount deposited in the Indian Bank, Tharangambadi, the same has not been challenged. In such circumstances, the finding of the Trial Court holds good. So, I am of the considered view that the appellant is not entitled to any share in C, B and E Schedule properties. Point No.5 is answered accordingly. Point Nos.6 and 7 : 18. In view of the answer given to Point Nos.1 to 5, the appellant is entitled to share in item No.1 of 'B' schedule properties. Further, the marriage expenses and value of 15 sovereigns of jewels shall not be deducted in the share given to the appellant and in respect of this, the first appeal is partly allowed. Thus, Point Nos.6 and 7 were answered accordingly. 19. Considering the facts and circumstances of the case, I am of the view that the appellant is entitled to 1/6th share in item Nos.1 and 2 of 'A' schedule properties, item Nos.1 to 5 of 'B' schedule properties, item Nos.1 and 2 of 'G' schedule properties and the amount lying in Savings Bank A/c.No.4653 in Indian Bank, Tharangambadi. 20. In fine, First Appeal is partly allowed. The decree and judgment passed by the trial Court is modified as follows: (i) The appellant is entitled to 1/6th share in item No.1 of 'B' Schedule properties. (ii) The finding of the Trial Court to deduct the amount of Rs.20,000/- and value of 15 Sovereigns of jewels from the share of the appellant is hereby set aside. The decree and judgment passed by the trial Court is modified as follows: (i) The appellant is entitled to 1/6th share in item No.1 of 'B' Schedule properties. (ii) The finding of the Trial Court to deduct the amount of Rs.20,000/- and value of 15 Sovereigns of jewels from the share of the appellant is hereby set aside. (iii) Hence the preliminary decree for partition is granted in respect of 1/6th share in item Nos.1 and 2 of 'A' schedule properties, item Nos.1 to 5 of 'B' schedule properties, item Nos.1 and 2 of 'G' schedule properties and the amount lying in Savings Bank A/c.No.4653 in Indian Bank, Tharangambadi. Considering the relationship, the parties are directed to bear their own costs.