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2019 DIGILAW 324 (MAD)

P. Balasubramanian v. P. Sivaprakash

2019-01-31

R.SUBRAMANIAN

body2019
JUDGMENT : These two appeals arise out of O.S.No.41 of 2005 and 40 of 2007 on the file of the Additional District Judge, Ramanathapuram. Since the dispute in both the suits related to the succession to the estate of late Palanichamy Thevar both the suits were tried together and disposed of by a common judgment dated 29.01.2010. The suit in O.S.No.41 of 2005 was filed by the defendants 1 to 4 in O.S.No.40 of 2007. The suit in O.S.No.40 of 2007 was filed by the second defendant in O.S.No.41 of 2005. 2. The case of the plaintiffs in O.S.No.41 of 2005 in brief is as follows:- Some of the properties were ancestral properties of the deceased Palanichamy Thevar and certain other properties were acquired by the family in the name of other members as per the directions of the Palanichamy Thevar. The deceased Palanichamy Thevar had two wives by name Rakkammal and Dharmambal. The marriage between Palanichamy Thevar and Dharmambal is also admitted. The plaintiffs in O.S.No.41 of 2005 are the sons of Palanichamy Thever through his second wife Dharmambal. The 10th defendant is the daughter of Palanichamy Thevar through the second wife Dharmambal. The defendants 1 to 4 are the sons through the first wife Rakkammal who was arrayed as 5th defendant in the suit. The second wife Dharmambal is the 6th defendant. The defendants 7 to 9 are the daughters of Palanichamy Thevar through the first wife Rakkammal. The 11th defendant is the wife of the second defendant Balasubramanian. The defendants 12 to 14 are the tenants under the second defendant. 3. The plaintiffs would contend that the said Palanichamy Thevar, his two wives and the children born through both the wives were living under the same roof as a joint family of which, the deceased Palanichamy Thevar was the Kartha. Though certain properties were acquired in the names of individual members, they were always treated as properties of the joint family. When certain misunderstanding arose in the family during the year 1998, the deceased Palanichamy Thevar exercised his right as a Kartha of the Hindu joint Family to effect a partition between the members of the family. Though certain properties were acquired in the names of individual members, they were always treated as properties of the joint family. When certain misunderstanding arose in the family during the year 1998, the deceased Palanichamy Thevar exercised his right as a Kartha of the Hindu joint Family to effect a partition between the members of the family. In exercise of such right, an oral partition was effected in and by which the suit properties that are subject matter of O.S.No.41 of 2005 were allotted to Palanichamy Thevar and the defendants 1 to 4 who were the sons through the first wife were allotted to various other items of properties. 4. According to the plaintiffs, all the parties accepted the said partition and were put in possession of their respective shares under the said partition. On 20.09.2000, the deceased Palanichamy Thevar had executed a registered document confirming the oral partition effected by him during the year 1999. The plaintiffs would further claim that the 11th item of suit properties allotted to Palanichamy Thevar was in his possession and he was in enjoyment of the same. While so, the said Palanichamy Thevar gifted item-11 of the suit properties to the plaintiffs 1 to 4 and the first defendant by a registered settlement deed dated 06.10.2004. It is also contended that the plaintiffs and the first defendant had accepted the settlement and have been in possession of the said property on and from the date of the said settlement. It is further claimed that the deceased Palanichamy Thevar while in a sound and disposing statement of mind had executed a registered will on 09.11.2004 in respect of items 1 to 10 of the suit properties to the plaintiffs and first defendant jointly. Ultimately, Palanichamy Thevar died on 15.11.2004 and as per the will, the plaintiffs and the first defendant became the owners of the suit item Nos.1 to 10. Though the first defendant had agreed to have the properties partitioned as per the will and the settlement deed executed by Palanichamy Thevar, he had been avoiding the same. Ultimately, Palanichamy Thevar died on 15.11.2004 and as per the will, the plaintiffs and the first defendant became the owners of the suit item Nos.1 to 10. Though the first defendant had agreed to have the properties partitioned as per the will and the settlement deed executed by Palanichamy Thevar, he had been avoiding the same. The plaintiffs would further claim that the other defendants who have no shares or right in the suit properties subject matter of O.S.No.41 of 2005 which were allotted to Palanichamy Thevar in the partition of the year 2000, now started laying claim over the said properties and taking advantage of the fact that the suit item No.11 stands in the name of the second defendant, the second defendant appears to have executed a settlement deed settling the said property in favour of his wife namely, the 11th defendant. The plaintiffs would further claim that the said settlement is not binding on them in view of the fact that the property was treated as joint family property and Palanichamy Thevar in exercise of his right as a Kartha of the joint family had effected the partition in and by which the property had been allotted to himself. 5. As regards the defendants 12 to 14, it was claimed that they have not been paying rents for their occupation of item 4 of the suit properties. According to the plaintiffs, the second defendant had been collecting the rents. On the above contentions, the plaintiffs sought for preliminary decree for partition of their respective shares, permanent injunction restraining the defendants from alienating or encumbering the suit properties and for permanent injunction restraining the defendants 12 to 14 from paying rent to the second defendant. 6. The suit was resisted by the second defendant who was actively supported by the defendants 7 to 9 and 11. The second defendant filed a written statement. The substance of the written statement is as follows:- The relationship between Palanichamy Thevar and the defendants 1 to 4 and 7 to 9 was admitted. However, the marriage between Dharmambal and Palanichamy Thevar said to have taken place in the year 1954 was denied. The second defendant would claim that though Palanichamy Thevar was living with the 6th defendant, she is not the legally wedded wife of Palanichamy Thevar. However, the marriage between Dharmambal and Palanichamy Thevar said to have taken place in the year 1954 was denied. The second defendant would claim that though Palanichamy Thevar was living with the 6th defendant, she is not the legally wedded wife of Palanichamy Thevar. The fact that the plaintiffs and the 10th defendant were born to Palanichamy Thevar and the 6th defendant was also admitted while it was claimed that they are not the legal heirs of Palanichamy Thevar and therefore, they are not entitled to any share. The claim of the plaintiffs that all the properties were joint family properties was specifically denied by the second defendant. The claim relating to the oral partition said to have been effected on 1999 was also denied. The partition deed said to have been executed by Palanichamy Thevar during 1999-2000 was also specifically denied. The validity of the document was disputed by the second defendant and it was further claimed that the document never came into force. The will and the settlement deed said to have been executed by Palanichamy Thevar were also disputed by the second defendant. It was claimed that Palanichamy Thevar was not in a sound disposing state of mind on 09.11.2004 when the will said to have been executed. The second defendant also set up independent title to the suit fourth item of property and claimed that since it was purchased in his name and the construction therein was put up by him, Palanichamy Thevar had no right to deal with the same as if it is joint family property. 7. On the above pleadings, the following issues were framed by the trial Court:- "1. Whether the plaintiffs are entitled 4/5 shares as prayed for? 2. Whether the plaintiffs are entitled permanent injunctions as prayed for? 3. Whether the partition deed dated 20.09.2000 executed by the plaintiff's father as a Kartha of joint family is valid? 4. Whether the Inam settlement deed executed by the father favour of plaintiffs and 1st defendant dated 06.10.2004 is valid? 5. Whether the will dated 09.11.2004 executed by the plaintiff's father is valid? 6. Whether the 11th item of the suit property belonging to the D.11? 7. What reliefs the plaintiffs are entitled?" 8. 4. Whether the Inam settlement deed executed by the father favour of plaintiffs and 1st defendant dated 06.10.2004 is valid? 5. Whether the will dated 09.11.2004 executed by the plaintiff's father is valid? 6. Whether the 11th item of the suit property belonging to the D.11? 7. What reliefs the plaintiffs are entitled?" 8. A reply statement came to be filed by the plaintiffs contending that the defendants cannot set up a plea relating to the validity or otherwise of the partition deed dated 20.09.2000, the settlement deed and the will executed pursuant thereto without seeking to cancel the said document as they had been executed by Palanichamy Thevar in exercise of his rights as a Kartha of a joint Hindu family. This led to filing of another suit, in O.S.No.40 of 2007 by the second defendant. In the said suit, the plaintiff/second defendant in O.S.No.41 of 2005 would contend that the partition deed executed by Palanichamy Thevar purportedly in exercise of his powers as a Kartha of the joint Hindu family is invalid inasmuch as his major sons were not parties to the same. It is also further contended that the properties having higher value were allotted by Palanichamy Thevar to himself in order to re-allot the same to his illegitimate children namely, the plaintiffs and the 10th defendant in O.S.No.41 of 2005. Apart from denying the truth, validity and genuineness of the said partition, the second defendant claimed that it is invalid inasmuch as it is unequal partition even assuming that Palanichamy Thevar had a right to partition the properties between coparceners as the Kartha of the joint family. He has also sought for a declaration that the partition deed dated 20.09.2000, the settlement deed dated 06.10.2004 and the will dated 09.11.2004 are invalid. 9. The second suit namely, O.S.No.40 of 2007 was resisted by the defendants. The written statement filed in the said suit was the replica of the plaint filed in O.S.No.41 of 2005. 10. Considering the pleadings thereon, the learned trial Judge framed the following issues in the said suit:- "1. Whether the partition deed dated 20.09.2000 is void? 2. Whether the settlement deed dated 06.10.2004 is void? 3. Whether the will dated 09.11.2004 is void? 4. What relief the plaintiff is entitled?" 11. Evidence was recorded in O.S.No.41 of 2005. At trial, P.Ws.1 to 3 were examined and Exs.A1 to A-31 were marked. Whether the partition deed dated 20.09.2000 is void? 2. Whether the settlement deed dated 06.10.2004 is void? 3. Whether the will dated 09.11.2004 is void? 4. What relief the plaintiff is entitled?" 11. Evidence was recorded in O.S.No.41 of 2005. At trial, P.Ws.1 to 3 were examined and Exs.A1 to A-31 were marked. The second defendant alone contested the suit. On the side of the second defendant, two witnesses were examined as D.Ws.1 and 2 and Exs.B.1 to B10 were marked. 12. The learned trial Judge concluded that the partition deed executed by Palanichamy Thevar is true and valid and Palanichamy Thevar had right to execute partition deed in his capacity as a Kartha of the joint Hindu family. The learned trial Judge also concluded that the partition deed having been executed by the Kartha in exercise of his powers as such, cannot be questioned by the other coparceners. The learned Judge also taking into account the earlier legal proceedings concluded that all the properties though standing in the names of different members of the joint family or joint family properties, the second defendant in O.S.No.41 of 2005, namely, the plaintiff in O.S.No.40 of 2007 had not established his claim that some of the properties belonged to him absolutely. In view of the said findings, the learned trial Judge upheld the validity of the partition effected by Palanichamy Thevar on 20.09.2000. The learned trial Judge also took note of the fact that the second defendant himself in earlier legal proceedings in O.S.No.13 of 1988 admitted that Palanichamy Thevar, his brothers, D-1 to D-4 and the plaintiffs 1 to 4 are sons of Palanichamy Thevar and they constitute joint Hindu family. 13. The learned Judge also relied upon the additional written statement filed by the second defendant in the said suit wherein he had admitted the character of the suit properties as joint family properties. The learned trial Judge also took note of the recitals in a sale deed marked as Ex.A.21 dated 29.09.1994 where Palanichamy Thevar and all his sons had executed a sale deed claiming that they are all members of a joint family. The claim of the second defendant/plaintiff in O.S.No.40 of 2007, that the fourth item of the properties belonged to him absolutely was rejected by the trial Court. The claim of the second defendant/plaintiff in O.S.No.40 of 2007, that the fourth item of the properties belonged to him absolutely was rejected by the trial Court. While dealing with the claim of the second defendant to the suit 11th item of property, the learned trial Judge concluded that in view of the fact that the partition deed has been upheld, Palanichamy Thevar had the power to deal with the same and thus the settlement deed executed by Palanichamy Thevar on 06.10.2004 is true and valid. Insofar as the Will said to have been executed by Palanichamy Thevar on 09.11.2004 is concerned, the learned trial Judge took note of the evidence of the attesting witness who was examined and concluded that the Will is also true and valid. On the above conclusions, the learned trial Judge decreed the suit in O.S.No.41 of 2005 while dismissing the suit in O.S.No.40 of 2007. Aggrieved by the said common judgment and decree, the defendants 2, 7, 8, 9 and 11 in O.S.No.41 of 2005 have filed A.S.(MD) No.53 of 2010. Against the judgment and decree in O.S.No.41 of 2005, the plaintiff in O.S.No.40 of 2007 has filed A.S.(MD) No.114 of 2010. 14. I have heard Mr. V. Sitharanjandas, learned counsel appearing for the appellants in both the appeals and Mr. Babu Rajendran, learned counsel for the respondents 1 to 4 and 7 to 9 in A.S.(MD) No.53 of 2010 and for the respondents 1 to 6 and 12 in A.S.(MD) No.114 of 2010. Mr. Raja Karthikeyan, learned counsel for the sixth respondent in A.S.(MD) No.53 of 2010 and for the eleventh respondent in A.S.(MD) No.114 of 2010. None appears for the respondents 7 to 10 in A.S.(MD) No.114 of 2010 and for the respondents 5 and 12 in A.S.(MD) No.53 of 2010. 15. Mr. V. Sitharanjandas, learned counsel for the appellants would vehemently contend that the partition deed said to have been executed by Palanichamy Thevar as the Kartha of the joint family is invalid and as such, the other documents namely, the settlement deed dated 06.10.2004 and the Will dated 09.11.2004 are also invalid. While conceding the power of the Kartha of a joint Hindu family to effect partition between the members Mr. V. Sitharanjandas, learned counsel would contend that the said partition should be done in a fair and bona fide manner. 16. In support of his contentions, Mr. While conceding the power of the Kartha of a joint Hindu family to effect partition between the members Mr. V. Sitharanjandas, learned counsel would contend that the said partition should be done in a fair and bona fide manner. 16. In support of his contentions, Mr. V. Sitharanjandas, learned counsel for the appellants would rely upon a Division Bench judgment of this Court in Gurusamy Naicker and Others reported in (1995) 2 MLJ 549 , wherein the Division Bench had while recognising the power of a Kartha of a Hindu joint family to execute partition which will be binding on the other co-parceners had hastened to add that such power should be exercised in a bona fide manner subject to the rights of the other co-parceners to challenge the same, if it is not fair and just. The Division Bench had also referred to various earlier decisions of the Hon'ble Supreme Court as well as this Court. The other findings of the trial Judge relating to the ownership of the property by the joint family or the execution of the settlement deed dated 06.10.2004 and the Will dated 09.11.2004 are not very seriously canvassed. Even otherwise, I do not find any material to invalidate the subsequent deeds. 17. Per contra, Mr. Babu Rajendran, learned counsel appearing for the respondents would submit that the appellants have not anywhere pleaded that the said partition is either unequal or unfair. 18. In order to buttress his submissions, the learned counsel would point out that the third issue in O.S.No.41 of 2005, which reads as follows:- "3. Whether the partition deed dated 20.09.2000 executed by the plaintiff's father as a Kartha of joint family is valid?" and the first issue in O.S.No.40 of 2007 which reads as follows:- "1. Whether the partition deed dated 20.09.2000 is void?" According to him, the very nature of the above issues would demonstrate that the appellants had not raised any issue relating to inequality and unfairness of the partition deed. 19. In reply to the above said arguments of the learned counsel appearing for the respondents, Mr. V. Sitharanjandas, learned counsel for the appellants would draw my attention to the pleadings in O.S.No.40 of 2007 wherein according to him, the plaintiff has clearly claimed that the partition deed is unfair and unequal. The learned counsel would specifically draw my attention to the following pleadings: "xxx" 20. V. Sitharanjandas, learned counsel for the appellants would draw my attention to the pleadings in O.S.No.40 of 2007 wherein according to him, the plaintiff has clearly claimed that the partition deed is unfair and unequal. The learned counsel would specifically draw my attention to the following pleadings: "xxx" 20. He would also draw my attention to the evidence of the second defendant in O.S.No.41 of 2005 as D.W.1 wherein during chief examination, he has deposed as follows:- "xxx" 21. The learned counsel would further point out that there has been no effective cross examination of the witnesses regarding his claim that the partition is unequal. 22. From the above arguments of the learned counsel appearing on either side, the only point for determination that arises in these appeals is: Whether the partition deed said to have been executed by Palanichamy Thevar exercising his powers as Kartha of a joint Hindu family is just and fair? 23. The partition deed dated 20.09.2000 has been marked as Ex.A.2.Even though the perusal of the said document shows that the value of the 'A' schedule properties allotted to Palanichamy Thevar is several times more than the value of the other properties, I find that the market value of the properties set out in schedules B to I has not been set out in the document. The value shown is 20 times of the kist payable to those properties. The same cannot be treated as market value to come to a conclusion that the partition is unequal. Even in the evidence of D.W.1 except stating that the properties of very high value have been allotted to the Palanichamy Thevar and the partition is unequal, the said witness has not come forward with the details of valuation so as to enable the Court to decide on the fairness of the partition effected by Palanichamy Thevar. 24. Apart from the above, I find that the learned trial Judge has not framed an issue relating to the fairness of the partition. No doubt true, Palanichamy Thevar, the Kartha of a joint Hindu family has power to effect partition between his children but such a partition must be done to be fair and just partition. The Division Bench had extracted the observations of the judgment of this Court reported in A.I.R. 1957 Mad. No doubt true, Palanichamy Thevar, the Kartha of a joint Hindu family has power to effect partition between his children but such a partition must be done to be fair and just partition. The Division Bench had extracted the observations of the judgment of this Court reported in A.I.R. 1957 Mad. 506 which read as follows:- "Under the Mitakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made however, must be fair and equal." 25. The Division Bench has also extracted the portion of the judgment of the Hon'ble Supreme Court in Apoorva Shantilal Shah v. Income Tax Commissioner reported in A.I.R. 1983 S.C. 409, wherein the Hon'ble Supreme Court has observed as follows:- "We wish to make it clear that this right of the father to effect a partial partition of joint family properties between himself and his minor sons, whether in exercise of his superior right as father or in exercise of the right as patria potestas has necessarily to be exercised bona fide by the father and is subject to the right of the sons to challenge the partition if the partition is not fair and just". 26. After noting the law laid down as above, the Division Bench has considered the evidence in that case and had come to a conclusion that the partition relied upon in that case was not just and fair. 27. From the above legal position, it is clear that a partition effected by a Kartha of a joint Hindu family cannot be upheld unless it is shown to be just, fair and equal. As already pointed out, such an exercise has not been carried out by the trial Court. In fact, no issue was framed regarding the fairness and justness of the partition deed dated 20.09.2000 marked as Ex.A.2. I have already extracted the relevant portion of the evidence regarding the justness and fairness of the partition deed. I am of the view that such evidence is wholly insufficient for the Court to come to a conclusion on the justness or the fairness of the partition deed. I have already extracted the relevant portion of the evidence regarding the justness and fairness of the partition deed. I am of the view that such evidence is wholly insufficient for the Court to come to a conclusion on the justness or the fairness of the partition deed. The resolution of the entire dispute revolves around the decision on the issue whether the partition deed is just and fair. In the absence of any material evidence in that regard, I have no other option but to set aside the finding of the trial Court with reference to the validity of the partition deed since the trial Court had not gone into the question of the justness and fairness of the partition deed. Unless the said question is decided the other issues cannot be answered either way. 28. In view of the same, I am obliged to set aside the judgment and decree of the trial Court insofar as it relates to the validity of the partition deed and remit the matter to the trial Court for considering the said issue namely, whether the partition deed is just, fair and equal. The findings of the trial Court on the other issues are confirmed. Though the findings of the trial Court on the character of the properties, validity of the Will and the validity of the settlement deed executed by Palanichamy Thevar are confirmed, all those findings will only depend on the validity of the partition deed. If the partition deed is found to be unfair or unjust, then the other documents would automatically become invalid because the executant namely, Palanichamy Thevar traces his title only through the partition deed dated 02.09.2000. 29. In fine, the judgment and decree of the trial Court are set aside. The suits are remitted to the trial Court only for the limited purpose of deciding whether the partition deed dated 20.09.2000 is just and fair. The parties will be entitled to lead evidence only on the issue relating to the justness and fairness of the partition deed. The appeals suits are accordingly, allowed. Considering the relationship of the parities, there shall be no order as to costs. The parties are directed to appear before the trial Court on 08.04.2019.