Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3759 (MAD)

KAMALAM v. MURUGANRAJ

2018-10-11

T.RAVINDRAN

body2018
JUDGMENT T.Ravindran, J. Challenge in this Second Appeal is made to the judgment and decree dated 19.01.2015 passed in A.S.No.58 of 2011 on the file of the Subordinate Court, Namakkal, reversing the judgment and decree dated 05.07.2011 passed in O.S.No.156 of 2007 on the file of the District Munsif cum Judicial Magistrate Court, Paramathy. 2. The Second Appeal has been admitted on the following substantial questions of law. (a) Whether Ex.A1 settlement deed is valid and binding on the plaintiff on the ground that small extent of property was settled and also Ex.A1 is a family arrangement between the members of the family? (b) Whether the suit for partition filed by the plaintiff is barred by limitation? (c)Whether the suit properties are the self acquired properties of the 1st defendant after the Hindu Succession Act 1956 came into force? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has come to be laid by the plaintiff for partition. 5. The relationship between the parties is not in dispute. Accordingly, it is noted that the plaintiff is the son, the second defendant and the 4th defendant are the daughters and third defendant is the second wife of the first defendant and contending that the suit properties are the ancestral properties belonging to the plaintiff and the defendants 1, 2 and 4, accordingly seeking < share in respect of the same and putting forth the case that the first defendant is not entitled to settle the suit properties in favour of the defendants 3 and 4, accordingly, the suit has come to be laid by the plaintiff for appropriate reliefs. 6. 6. Inter alia, the defendants contested the plaintiff's suit stating that the suit properties are the separate properties of the first defendant, he having derived title to the same based on the partition deed dated 09.12.1975 and accordingly contending that the first defendant is entitled to settle the suit properties in favour of the defendants and stated that the first defendant had transferred the properties derived by him by way of the abovesaid partition deed in favour of the second defendant and the defendants 3 and 4 by way of the settlement deeds dated 19.11.1992 and 02.11.1992 respectively and further the properties covered under the partition deed dated 09.12.1975 had been alienated by the first defendant and Others to the third parties by way of the sale deeds dated 17.04.1995 and accordingly, it is stated that the plaintiff is not entitled to challenge the settlement deed in respect of the suit properties in favour of the defendants 3 and 4 and as the properties settled in favour of the defendants 3 and 4 had been in their exclusive possession and enjoyment and accordingly, prayed for the dismissal of the plaintiff's suit. 7. As rightly determined by the trial court, on the basis of the materials placed on record, it is found that the first defendant had been allotted the properties under the partition deed dated 09.12.1975 marked as Ex.B3. It is found that by way of Exs.B1 and B2, the properties covered under Ex.B3 partition deed had been alienated by the first defendant on his behalf and also on behalf of the plaintiff, who was a minor at that point of time. It is found that by way of Exs.B1 and B2, the properties covered under Ex.B3 partition deed had been alienated by the first defendant on his behalf and also on behalf of the plaintiff, who was a minor at that point of time. Furthermore, it is also found that the first defendant had settled the properties in favour of the second defendant by way of Ex.A2 settlement deed and also settled the other properties in favour of the defendants 3 and 4 by way of Ex.A1 settlement deed and the materials placed on record further also go to show that the properties settled by way of Ex.A2 had been alienated by the first defendant and Others on 14.09.2001 in favour of Sellappan under Ex.A3 sale deed and in such view of the matter, it is found that right from the inception, the first defendant had been dealing with the properties allotted to him under Ex.B3 partition deed in his own right and to the knowledge of the plaintiff and despite the abovesaid transfers made by the first defendant, the plaintiff has not challenged the same, however, has come forward with the present suit seeking partition in respect of the suit properties by putting forth the challenge only to the settlement deed executed by the first defendant in faovur of the defendants 3 and 4. 8. When it is found that the properties had been derived by the first defendant by way of Ex.B3 partition deed and on the basis of the recitals found in Ex.B3 partition deed as well as the other documents projected in the matter, when it is found that the properties had been acquired by the first defendant by way of partition as well as by way of inheritance and enjoying the same independently, as rightly determined by the trial court, the properties derived by the first defendant under Ex.B3 partition deed would only partake the character of his self acquired properties as per law and this position of law could be gathered from the decisions reported in [Commissioner of wealth Tax Vs. Chander sen and Others, (1986) 3 SCC 567 ] and [B.Nalina and Others Vs. Arumugam and Others, (2011) 3 LW 317 ]as well as the decision reported in [M.Palaniappan and another Vs. Chander sen and Others, (1986) 3 SCC 567 ] and [B.Nalina and Others Vs. Arumugam and Others, (2011) 3 LW 317 ]as well as the decision reported in [M.Palaniappan and another Vs. Nachimuthu, (2017) 2 LW 343 ] and accordingly, when it is found that after the advent of the Hindu Succession Act 1956 when the son derives the share of the undivided family properties by way of partition as provided u/s.8 of the Hindu Succession Act, 1956, he takes it only in his own capacity and not as the joint family properties of his own family members and accordingly it is found that when by way of Ex.B3 partition deed, the share of each of the coparceners has been arrived and made clear and also determined the joint family members thereafter, ceases to be the joint family members and accordingly, it is found that the suit properties derived by the first defendant by way of Ex.B3 partition deed could only be considered as the separate properties of the first defendant and in such view of the matter, as rightly determined by the trial court, it is seen that the first defendant is entitled to settle the suit properties or the properties derived by him by way of Ex.B3 partition deed and the same cannot be challenged by the plaintiff by seeking partition in respect of the suit properties settled in favour of the defendants 3 and 4 by the first defendant. 9. In the light of the above discussions, it is found that the suit properties are only the self acquired properties of the first defendant following the advent of the Hindu Succession Act, 1956 and the settlement deed executed by him in respect of the suit properties marked as Ex.A1 is a valid document and binding on the plaintiff and the plaintiff is not entitled to challenge the same and accordingly, it is found that the plaintiff is not entitled to seek the relief of partition in respect of the suit properties. As regards the point of limitation raised, it is seen that the same is not necessary to be gone into and accordingly, the second substantial question of law formulated in the Second Appeal is left unanswered. Resultantly, the first substantial question of law formulated in the Second Appeal is accordingly answered against the plaintiff and in favour of the defendants. 10. Resultantly, the first substantial question of law formulated in the Second Appeal is accordingly answered against the plaintiff and in favour of the defendants. 10. In the light of the above position, the decision relied upon by the plaintiff's counsel reported in [Athiappa Gounder and another Vs. A.Mohan and 3 others, (1995) 1 LW 594 ] would have no application to the facts and circumstances of the case at hand. 11. In conclusion, the judgment and decree dated 19.01.2015 passed in A.S.No.58 of 2011 on the file of the Subordinate Court, Namakkal, are set aside and the judgment and decree dated 05.07.2011 passed in O.S.No.156 of 2007 on the file of the District Munsif cum Judicial Magistrate Court, Paramathy are restored. Accordingly, the Second Appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.