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2017 DIGILAW 1062 (MAD)

K. Annapoorani v. Ramasamy

2017-04-13

N.SATHISH KUMAR

body2017
JUDGMENT : The non-suited plaintiff has preferred the instant appeal aggrieved by the judgment and decree passed by the First Additional District Judge, Erode in O.S.No.36 of 2008. 2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court. 3. The plaintiff filed a suit in O.S.No.36 of 2008, before the learned First Additional District Judge, Erode for partition of the suit properties into four equal shares and allot one such share to her. 4. The brief facts of the case of the plaintiff are as follows: (i) The 1st defendant is the maternal great grand father of the plaintiff. 2nd defendant is the brother of the plaintiff. 3rd defendant is the 2nd wife of 1st defendant. 4th defendant is the son of the 3rd defendant. Defendants 5 & 6 are the children of the 4th defendant. The plaintiff and the 2nd defendant are the son and daughter of one Saraswathi, who was born to the 1st defendant's through his 1st wife, namely Pappayee. (ii) The suit properties are ancestral properties of one Muthusamy Gounder. The 1st defendant is the only son of the said Muthusamy Gounder. After the death of said Muthusamy Gounder, the plaintiff and the defendants jointly enjoying the suit properties. In the year 2004, the 1st defendant has agreed to divide the suit properties. However, he did not come forward to effect partition. Whereas the 1st defendant executed document in favour of the 4th defendant. Therefore, according to the plaintiff, the documents executed by the 1st defendant on 18.2.2004 and 13.09.2007 are not binding. Hence, the suit. 5. The brief averments of the written statement filed by the 1st and 2nd defendants are as follows: While admitting the relationship, it is stated by the defendants that the suit is not maintainable. It is denied that the plaintiffs and the defendants are in joint possession. According to the defendants, the suit properties are self acquired properties of Muthusamy Gounder and after his demise, the 1st defendant inherited the suit properties and executed a Will dated 10.5.1991 in favour of the 2nd defendant. Thereafter, on 18.2.2004, he executed Settlement Deed and handed over the possession. He also executed Sale Deed in respect of 1500 sq.ft. in the year 1992. Further, he executed Settlement Deed dated 13.09.2007 in respect of the remaining properties. Thereafter, on 18.2.2004, he executed Settlement Deed and handed over the possession. He also executed Sale Deed in respect of 1500 sq.ft. in the year 1992. Further, he executed Settlement Deed dated 13.09.2007 in respect of the remaining properties. The defendants, denying the right of the plaintiff as alleged by her, contended that the plaintiff has no share in the suit properties, as the properties are self acquired properties of Muthusamy Gounder. Hence, the defendants prayed for dismissal of the suit. 6. Based on the above pleadings, the trial Court formulated as many as six issues for consideration. They are: “1. Whether the Will dated 10.5.1991 is true and valid? 2. Whether the Settlement deeds dated 18.2.2004 and 13.09.2007 are true and valid? 3. Whether the suit properties are ancestral properties of the plaintiff and the defendants? 4. Whether the sale deed in favour of the 2nd defendant in the year 1992 is valid? 5. Whether the plaintiff is entitled to a decree as prayed for? 6. To what other reliefs the plaintiff is entitled to?” 7. On the side of the plaintiff, the plaintiff examined herself as PW1 and Exs. A1 to A7 were marked. On the side of the defendants, the 1st defendant examined himself as DW1, 2nd defendant examined himself as D.W.2 and 4th defendant examined himself as DW3 and Exs. B1 to B17 were marked. 8. The learned trial Judge, after analysing the entire evidence and the documents, dismissed the suit for partition. Aggrieved over the same, the present appeal came to be filed by the plaintiff. 9. The learned counsel appearing for the appellant/plaintiff vehemently contended that though the property, in fact, was inherited by the 1st defendant, the plaintiff, who falls within the third degree of generation, is entitled to get coparcenary rights along with others. The learned counsel for the appellant/plaintiff further submitted that once the property is inherited then it is ancestral in nature. The plaintiff, being the maternal great grand daughter of the 1st defendant, became coparcener along with others. Therefore, the documents executed by the 1st defendant are not binding on her. Hence, it is submitted that the plaintiff is, certainly, entitled for partition. It is also submitted that since the plaintiff comes under class I legal heir, as per Schedule 8 of Hindu Succession Act, she has a right to claim partition. Therefore, the documents executed by the 1st defendant are not binding on her. Hence, it is submitted that the plaintiff is, certainly, entitled for partition. It is also submitted that since the plaintiff comes under class I legal heir, as per Schedule 8 of Hindu Succession Act, she has a right to claim partition. Thus, the learned counsel for the appellant/ plaintiff prayed for allowing the appeal. 10. There was no representation on behalf of the defendants, despite notice served on them and their names have been shown in the cause list. 11. In these circumstances, now the point that arises for consideration in this appeal is as to whether the suit property is ancestral property and if so, the plaintiff is entitled to coparcenary rights in the suit property. 12. P.W.1, in her evidence, has clearly stated that she got married in the year 1977 and the suit properties are the self acquired properties of late Muthusamy Gounder. She has also admitted that there is no evidence to show that the family arrangement was made in the family and that the parties had agreed to allot property to her. Whereas D.W.1, the 1st defendant herein, has admitted that in the year 2004 itself, he has executed Settlement Deed in respect of 1/2 of the suit property in favour of the 4th defendant. Further, D.W.1, in his evidence, asserted that the suit property was purchased by his father. 13. The relationship between the parties is not disputed. P.W.1, in her evidence, has admitted that the properties are self acquired properties of one Muthusamy Gounder. A copy of the Sale Deed is marked as Ex.A1. Under Ex.A1, an extent of 800 cents was purchased by the said Muthusamy Gounder. Under Ex.A2 dated 21.6.1950, the said Muthusamy Gounder purchased 82 3/4 cents. Except the above, i.e.Exs.A1 and A2 title deeds, no other documents have been filed. The plaintiff sent a legal notice under Ex.A3 and the same was replied by the defendants under Ex.A5 wherein, it is the specific stand of the defendants that the suit property is the absolute property of the said Muthusamy Gounder. 14. It is also not disputed by both sides that the entire suit property is the self acquired property of Muthusamy Gounder. To substantiate the same, Exs.B1 to B3 were filed. It is stated that the said Muthusamy Gounder died. 14. It is also not disputed by both sides that the entire suit property is the self acquired property of Muthusamy Gounder. To substantiate the same, Exs.B1 to B3 were filed. It is stated that the said Muthusamy Gounder died. There is no dispute with regard to the same. Further, it is also established that the property was purchased by the said Muthusamy Gounder. After the death of Muthusamy Gounder, Section 8 of the Hindu Succession Act, will come into play. Since the wife of the said Muthusamy Gounder predeceased him, the 1st defendant, being the sole class -I legal heir of Muthusamy Gounder at the relevant time, became the owner of the property. Therefore, the contention of the plaintiff that the suit property is ancestral property cannot be countenanced at all. Similarly, the contention of the learned counsel for the plaintiff that daughter of the predeceased daughter also falls under class-I legal heir and hence, the plaintiff is also entitled to get her share is without any basis and the same is not sustainable. It is pertinent to point out that son or daughter of the predeceased son or daughter will get shares only when their father or mother predeceased. 15. Admittedly, in this case, the 1st defendant comes under class -I legal heir of Muthusamy Gounder. Therefore, the question of inheriting the property by the plaintiff, who is the maternal great grand daughter of original Muthusamy Gounder, as a class - I legal heir does not arise at all. The oral and documentary evidence adduced on both sides would clearly show that the suit property is the self acquired property of Muthusamy Gounder. Section 8 of the Hindu Succession Act will govern succession only in respect of self acquired property of male Hindu. The 1st defendant, being the only son of Muthusamy Gounder and comes under class - I legal heir, has inherited the property. Therefore, when the 1st defendant is very much alive, the question of seeking any right over the property by the plaintiff does not arise at all. Further, as stated above, the oral and documentary evidence available on records have not established the fact that the property, in question, is ancestral property. Only when it is established that the subject matter of the property is ancestral property, then question of finding out existence of coparcener arise. Further, as stated above, the oral and documentary evidence available on records have not established the fact that the property, in question, is ancestral property. Only when it is established that the subject matter of the property is ancestral property, then question of finding out existence of coparcener arise. There must be evidence to show that the property was inherited from direct male ancestral, not exceeding three degree higher than himself. Only when there is an evidence to show that the property was inherited from direct male ancestral not exceeding three degrees, higher than the person, then only question of considering coparcenary right arise. Therefore, the relief sought for by plaintiff claiming partition is not at all maintainable. 16. It is further to be noted that even assuming that the property was ancestral property, the plaintiff is not entitled to get share in view of Section 6 of the Hindu Succession Act. The plaintiff, being the maternal great grand daughter of 1st defendant could not be a coparcener in the Hindu joint family before Act 39 of 2005 came into force,. The right of woman to become a coparcener was recognised by the Tamil Nadu Act 1/90. Even as per Tamil Nadu Act 1 of 1990, woman should not have been married before 25.3.1989. 17. Whereas in this case, P.W.1 herself admitted that she got married in the year 1977. Therefore, for taking benefit under Section 29 A of the Hindu Succession Act, Tamil Nadu Act would not arise at all. Similarly, under Section 6 of the Central Act, to become a coparcener, father of the woman should be alive. In order to get benefit under Section 6 of Central Act, she must be a daughter of the coparcener but whereas, in this case, the plaintiff is only a maternal great grand daughter of the 1st defendant. Therefore, her father becoming coparcener with the 1st defendant would not have been possible. Further, the 1st defendant has also executed sale deed in the year 1992 and also Gift Deed in the month of February 2004 i.e., before the Act 39 of 2005 came into effect. Ex.B4 is the sale deed of the year 1992 in respect of 1500 sq.ft. Similarly, on 18.2.2004, under Ex.B5, she has executed Gift Deed in respect of 4.42 acres in the suit properties. Ex.B4 is the sale deed of the year 1992 in respect of 1500 sq.ft. Similarly, on 18.2.2004, under Ex.B5, she has executed Gift Deed in respect of 4.42 acres in the suit properties. All these transactions have taken place much prior to Act 39 of 2005 came in force. Therefore, the plaintiff claiming equal right along with others in the suit property does not arise at all. 18. In any event, once the suit property itself is self acquired property of the father of the 1st defendant, the plaintiff, being the maternal grand daughter of the 1st defendant, cannot lay a suit claiming any share as there was no cause of action at all and since the property in the hands of the 1st defendant remains self acquired property, in view of Section 8 of the Hindu Succession Act. Therefore, the finding of the learned trial Judge, does not require any interference. Accordingly, these points are answered. In the result, the appeal is dismissed confirming the judgment and decree dated 30.10.2009 passed by the First Additional District Judge, Erode. However, there shall be no order as to costs.