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2023 DIGILAW 3227 (MAD)

Pongiannan v. Nanjayaal @ Nanjakkal (died)

2023-10-18

S.SOUNTHAR

body2023
JUDGMENT : THE HONOURABLE MR. JUSTICE S.SOUNTHAR PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 26.04.2011 passed in A.S.No.84 of 2009, on the file of the Additional District Court, Gobichettipalayam (Fast Tract -2) reversing the judgment and decree dated 31.10.2008 passed in O.S.No.70 of 2004 on the file of the 1st Additional Subordinate Court, Gobichettipalayam. The defendant in the suit for partition is the appellant. The deceased 1st respondent filed the suit for partition claiming 6/7 share in the suit properties. The suit was dismissed by the Trial Court. The first appeal filed by the 1st respondent was allowed granting 31/56 share in the suit properties. Aggrieved by the same, the defendant has come by way of this second appeal. Pending second appeal, the 1st respondent died and his legal representatives were brought on record as respondent 2 to 4. 2. According to the deceased 1st respondent/plaintiff, the suit properties belong to her father Chinaa Gounder. He had two wives by name Senior Karuppayal (first wife) and Junior Karuppayal (second wife). He got a daughter Ammasiammal through first wife Senior Karuppayal and a son and four daughters through second wife Junior Karuppayal. The deceased 1st respondent is the daughter of Chinaa Gounder through Junior Karuppayal. It was claimed by the 1st respondent that after the death of Chinaa Gounder, his surviving heirs, namely Junior Karuppayal and six children each were entitled to 1/7 share in the suit properties. The 1st respondent also got release of 5/7 share from her three sisters, mother and one step sister. Thus, she claimed 6/7 share in the suit properties. Pongiannan, Chinaa Gounder's predeceased son left behind him, his wife and two daughters Gomathi and Jayamani. The appellant herein purchased the entire suit properties from the legal heirs of deceased Pongiannan. It is the case of the 1st respondent that the legal representatives of the deceased Pongiannan had no right to sell the entire suit properties, including the shares of other heirs of Chinaa Gounder and therefore, the suit was filed claiming 6/7th share in the suit properties. It is the case of the 1st respondent that the legal representatives of the deceased Pongiannan had no right to sell the entire suit properties, including the shares of other heirs of Chinaa Gounder and therefore, the suit was filed claiming 6/7th share in the suit properties. 3.The appellant herein filed a written statement and resisted the suit on the ground that one of the daughter of Chinaa Gounder through his 1st wife namely Ammasiammal filed a suit for partition in O.S.No.217 of 1990 on the file of Principal Subordinate Court, Gobichettipalayam and the said suit got dismissed for default. Therefore, the present suit filed by the 1st respondent was barred by the doctrine of res judicata. The appellant also raised a plea that the release deed allegedly executed by the sisters of the 1st respondent dated 13.06.2003 and rectification deed dated 24.03.2004 were void documents and the same will not convey any title to the 1st respondent and on that ground, he sought for dismissal of the suit. 4.The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the 1st respondent failed to prove that the suit properties originally belong to her father Chinaa Gounder and consequently, dismissed the suit. Aggrieved by the same, the 1st respondent filed an appeal in A.S.No.84 of 2009. Pending first appeal, she also filed an application for reception of additional documents in I.A.No.118 of 2010. The said application was considered along with the appeal and the additional documents filed by the 1st respondent were marked as Ex.A4 to Ex.A14. The 1st Appellate Court, based on the additional documents marked before it, namely Ex.A11 to Ex.A14 sale deed in favour of Nanjappa Gounder, father of Chinaa Gounder, came to the conclusion that the suit properties were purchased by the grandfather of 1st respondent namely Nanjappa Gounder. Accordingly, the 1st Appellate Court came to the conclusion that the suit properties were ancestral properties and hence, Chinaa Gounder is entitled to 1/2 share along with his son Pongiannan. After the death of Chinaa Gounder, his 1/2 share devolved on his surviving heirs under Section 8 of Hindu Succession Act. Therefore, each of them are entitled to 1/14 share. Accordingly, the 1st Appellate Court came to the conclusion that the suit properties were ancestral properties and hence, Chinaa Gounder is entitled to 1/2 share along with his son Pongiannan. After the death of Chinaa Gounder, his 1/2 share devolved on his surviving heirs under Section 8 of Hindu Succession Act. Therefore, each of them are entitled to 1/14 share. Therefore, based on the release deed and rectification deed executed by the sisters of the 1st respondent under Ex.B2 and Ex.B3, the 1st Appellate Court came to the conclusion that the 1st respondent was entitled to 6/14 share in the suit properties. Since the brother of 1st respondent, namely Pongiannan died leaving behind his mother Junior Karuppayal, wife Eswari and daughters Gomathi and Jayamani as his legal representatives, the 1st Appellate Court came to the conclusion that 1/8 share of Karuppayal (1/2 x /1/4) will also go the 1st respondent under the release deed executed by Karuppayal. Accordingly, the 1st Appellate Court came to the conclusion that the 1st respondent is entitled to 31/56 share in the suit properties ( 6/14+ 1/8). Aggrieved by the same, the appellant is before this Court. 5. At the time of admission, this Court formulated the following substantial questions of law; "(1) Whether the learned Appellate Judge was right in giving a share to the plaintiff when she has not discharged her burden to establish as to how she was entitled to a share in the property? (2)Whether the learned appellate Judge was right in holding that the plaintiff had a share in the property, when it is an admitted fact that her father Chinna Gounder died before 1986?" 6. The learned counsel appearing for the appellant elaborating his submission on the substantial questions of law that even prior to coming into force of the amended Hindu Succession Act, 2005, the appellant purchased the suit properties from three heirs of Pongiannan namely his wife Eswari and daughters Gomathi and Jayamani under Ex.A1 dated 30.03.1992. Since the entire suit properties have been sold by the heirs of male member of joint family in the year 1992, well prior to the coming into force of Act of 2005, the 1st respondent, namely daughter of Chinaa Gounder, had no right over the suit property. Since the entire suit properties have been sold by the heirs of male member of joint family in the year 1992, well prior to the coming into force of Act of 2005, the 1st respondent, namely daughter of Chinaa Gounder, had no right over the suit property. In this connection, the learned counsel relied on the judgment of the Hon’ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in (2020) 9 SCC 1 . 7.It is not in dispute that the suit properties were purchased by Nanjappa Gounder, father of Chinaa Gounder, under whom the 1st respondent/plaintiff is claiming right. The sale deeds in favour of Nanjappa Gounder were marked as Ex.A1 to Ex.A14 before the 1st Appellate Court. Based on the said documents, the 1st Appellate Court came to the conclusion that the suit properties were ancestral properties. The said findings are not assailed by the learned counsel for the appellant. It is his submission that since male member of the family namely Pongiannan sold the entire suit properties to the appellant even prior to coming into force of the Act of 2005, the female heirs of Chinaa Gounder are not entitled to any share. The said submission made by the learned counsel for the appellant is not acceptable to this Court. The daughters were given equal right in the self acquired properties of their father. Even under the original Hindu Succession Act which came into force in the year 1956, as per the unamended Section 6 of Hindu Succession Act, on the death of Nanjappa Gounder, there shall be a notional partition and 1/2 of the property shall be allotted to the share of Chinaa Gounder and the remaining 1/2 share shall be allotted to the share of Pongiannan. 8. The properties allotted to the share of Chinaa Gounder in notional partition shall be allotted to his class 1 heirs equally under Section 8 of the Hindu Succession Act. In that case, the 1st respondent is entitled to 1/14 share in the suit properties. Under Ex.A2 and Ex.A3, the 1st respondent purchased the share of her four sisters and mother. The four sisters of the 1st respondent each are entitled to 1/14 share in the suit properties. As far as the mother of 1st respondent Junior Karuppayal is concerned, she is entitled to 1/14 +1/8 share as her son Pongiannan predeceased. Under Ex.A2 and Ex.A3, the 1st respondent purchased the share of her four sisters and mother. The four sisters of the 1st respondent each are entitled to 1/14 share in the suit properties. As far as the mother of 1st respondent Junior Karuppayal is concerned, she is entitled to 1/14 +1/8 share as her son Pongiannan predeceased. Thus, the 1st respondent entitled to 31/56 share in the suit properties (6/14 + 1/8). Therefore, the 1st Appellate Court by applying unamended Sections 6 & 8 of the Hindu Succession Act, came to the correct conclusion that the 1st respondent was entitled to 31/56 share in the suit properties. It is not open to the other heirs of deceased Pongiannan, namely his wife and daughters to sell the entire suit properties, including the share of Pongiannan's sisters and mother. Therefore, the 1st Appellate Court correctly came to the conclusion that the 1st respondent was entitled to 31/56 share in the suit properties and the same requires no interference by this Court. When this Court comes to the conclusion even as per unamended provision of Section 6 & 8 of the Hindu Succession Act, that stood prior to 2005 amendment, the 1st respondent is entitled to 31/56 share as held by the 1st Appellate Court, the decision relied on by the learned counsel for appellant in Vineeta Sharma case (cited supra), has no application to the facts of the present case. 9. Accordingly, the substantial questions of law framed at the time of admission are answered against the appellant and the second appeal stands dismissed a) by confirming the judgment and decree dated 26.04.2011 made in A.S.No.84 of 2009 on the file of the Additional District Court, Gobichettipalayam (Fast Tract -2) reversing the judgment and decree dated 31.10.2008 made in O.S.No.70 of 2004 on the file of the 1st Additional Subordinate Court, Gobichettipalayam; and b) In the above facts and circumstances of the case, there will be no order as to costs.