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2025 DIGILAW 1157 (MAD)

Tmt. v. Chamundeeswari VS V. Ganapathy

2025-02-26

C.KUMARAPPAN

body2025
JUDGMENT : (C. KUMARAPPAN, J.) The plaintiff is the appellant and the defendants are the respondents herein. 2. For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court. 3. The brief facts which are necessary for the disposal of this case is as follows:- The suit property originally belongs to one Chengeni Naicker and his wife Tmt.Rukmaniammal @ Rukkammal. They had two daughters viz., Tmt.Navaneetham and Tmt.Unnamalai. Among them, Tmt.Navaneetham predeceased her husband and they had no issues. Another daughter Tmt.Unnamalai had one daughter viz., Tmt.Chamundeeswari [plaintiff] and two sons viz., Mr.Nagarajan and Mr.Ganapathi [first defendant]. Whereas Mr.Nagarajan died, and his legal heirs viz., Mr.Karthikeyan and Mr.N.Ganesh were arrayed as defendants 2 and 3. It is is the specific case of the plaintiff that after the demise of her grandfather Chengeni Naicker, the property jointly devolves upon her grandmother Tmt.Rukmaniammal and their two daughters Tmt.Navaneetham and Tmt.Unnamalai. Since Tmt.Navaneetham's husband not claiming any right over the suit property, after the demise of Tmt.Rukmaniammal, all the property jointly devolved upon her and her two brothers. Accordingly, the plaintiff claimed 1/3 share in the suit property under Section 8 of The Hindu Succession Act, 1956 . 4.The said suit was resisted by the defendants by contending that their grandfather Chengeni Naicker died prior to the enactment of Hindu Succession Act, 1956 qua during 1947. Therefore, on the demise of Chengeni Naicker, limited right of life estate was conferred upon the widow of Chengeni Naicker viz., Tmt.Rukmaniammal and that after the advent of “ Hindu Succession Act, 1956 ” [hereinafter called “1956 Act”], by operation of Section 14 (1), Tmt.Rukmaniammal's limited right blossomed into a full right. As such, though originally the property belonged to Chengeni Naicker, since he died prior to 1956 Act and by operation of Section 14 (1) of the Hindu Succession Act, the suit property becomes the absolute property of Tmt.Rukmaniammal [grandmother of the plaintiff and the 1 st defendant]. It is in this background the defendant put forth a will dated 24.08.1982 executed by Tmt.Rukmaniammal, bequeathing the entire suit property to the first defendant and his brother late Nagarajan. Therefore, it is the contention of the defendants that the plaintiff has no right in the suit property, and prayed to dismiss the suit. 5. It is in this background the defendant put forth a will dated 24.08.1982 executed by Tmt.Rukmaniammal, bequeathing the entire suit property to the first defendant and his brother late Nagarajan. Therefore, it is the contention of the defendants that the plaintiff has no right in the suit property, and prayed to dismiss the suit. 5. Before the Trial Court, the plaintiff examined 2 witnesses viz., the plaintiff herself, and Chengeni Naicker's son-in-law Natesan, qua the husband of late Navaneetham. On behalf of the defendants, the 1 st defendant himself was examined as DW1, and the attestor to the Ex.B1-Will dated 24.08.1982 was examined as DW2. On behalf of the plaintiff, 10 documents were relied and the defendants relied one document. 6. On the pleadings of either side, the Trial Court has framed the following issues:- (i) Whether late Tmt.Rukmaniammal is the widow of Kuppusamy Naicker? (ii)Whether the plaintiff is entitled for partition of the Suit Schedule properties? (iii)Whether the Plaintiff is entitled for past, present and future mesne profits as claimed in the Plaint? (iv)Whether the Suit property are the joint family properties of the Plaintiff and the Defendants? (v)Whether the particulars given by the Plaintiff regarding the relationship are correct? (vi)To what other reliefs is the Plaintiff is entitled? ( Extracted as it is) 7. In respect of issue nos.1 and 5, the Trial Court held that in view of filing of amended plaint, and the correction of errors regarding the relationship, concluded that Tmt.Rukmaniammal is the wife of Chengeni Naicker, as contended by the defendant. In respect of issue Nos.2, 3 and 4, the Trial Court has concluded that in view of the death of Chengeni Naicker prior to 1956, a limited right vests upon Chengeni Naicker's wife Tmt.Rukmaniammal, and ultimately the same enlarged into a full right by virtue of Section 14 (1) of the Hindu Succession Act. Thus, concluded that the suit property becomes the absolute property of Tmt.Rukmaniammal. It was further held that the Will dated 24.08.1982 executed by Tmt.Rukmaniammal has been proved in a manner known to law. Thus, as a concomittant, dismissed the suit. Aggrieved with the same, the instant First Appeal has been filed by the plaintiff. 8. Heard Mr.N.Ganesh, learned counsel for the appellant/plaintiff and Mr.M.V.Seshachari, learned counsel for the respondents/defendants. 9. It was further held that the Will dated 24.08.1982 executed by Tmt.Rukmaniammal has been proved in a manner known to law. Thus, as a concomittant, dismissed the suit. Aggrieved with the same, the instant First Appeal has been filed by the plaintiff. 8. Heard Mr.N.Ganesh, learned counsel for the appellant/plaintiff and Mr.M.V.Seshachari, learned counsel for the respondents/defendants. 9. The learned counsel for the plaintiff would vehemently contend that the entire crux of the issue rests upon the crucial factum of date of death of Chengeni Naicker. According to the plaintiff, the death was subsequent to 1956, but the defendants contended that it was prior to 1956. But, as a matter of fact, the defendants never pleaded in their written statement as to this issue, qua date of death of Chengeni Naicker. It was also contended by the learned counsel for the appellant that, in the pre-suit notice and in the plaint, it was specifically mentioned that after the demise of Chengeni Naicker, the property jointly vests upon Tmt.Rukmaniammal, the plaintiff's mother Tmt.Unnamalai and her maternal aunt Tmt.Navaneethammal, which would demonstrate the death of Chengeni Naicker subsequent to the advent of the Hindu Succession Act, 1956 , and that this was not specifically denied by the defendants. The learned counsel would also contend that, nowhere in the written statement, the date of death of Chengeni Naicker is referred, so as to invoke the principles of old Hindu Law. It was further contended that constitutionally recognised property right cannot be decided based upon the surmises and conjunctures, all the more, the contention of existence of pleading, albeit unobtrusively is unknown to law. It was further contended that the Will executed by Tmt.Rukmaniammal is ipso facto void as she did not have any absolute right over the property and that the Will [Ex.B1] has not been proved in a manner known to law. He would also submit that beyond the pleadings, the Trial Court by presuming and assuming certain things, had arrived at an erroneous finding. Hence, prayed to allow this appeal. In support of his contention, he relied upon the following judgements:- (i) Ram Sarup Gupta (dead) by L.Rs. Vs. Bishun Narain Inter College and others reported in 1987 2 SCC 555 ; (ii)Prakash Rattan Lal Vs. Mankey Ram reported in 2010 0 Supreme(Del) 51; (iii)Kalyan kumar Gogoi Vs. Hence, prayed to allow this appeal. In support of his contention, he relied upon the following judgements:- (i) Ram Sarup Gupta (dead) by L.Rs. Vs. Bishun Narain Inter College and others reported in 1987 2 SCC 555 ; (ii)Prakash Rattan Lal Vs. Mankey Ram reported in 2010 0 Supreme(Del) 51; (iii)Kalyan kumar Gogoi Vs. Ashutosh Agnihotri and another reported in 2011 (1) Supreme 545 ; (iv)Anita Sonkar Vs. Shakuntala Misra reported in 2014 0 Supreme (All) 2746; (v)Sri Shivaji Balaram Haibatti Vs. Sri Avinash Maruthi Pawar reported in ( 2018) 11 SCC 652. 10. Per contra, the learned counsel for the respondents would vehemently contend that the wholesome reading of the Written Statement would indubitably manifest the basis to apply the uncodified Hindu Law, and that the plaintiff cannot expect the defendants to plead the law, and that their pleadings unequivocally demonstrate the death of Chengeni Naicker prior to 1956. It is in this background, contended that Tmt.Rukmaniammal's limited right metamorphed into an absolute right. As such, by virtue of Ex.B1-Will, the defendants became the absolute owner. Hence, he prayed to dismiss the appeal. 11. I have given my anxious consideration to either side submissions. 12. While considering the submissions made by either side and also considering the pleadings and evidence, the following points are emerging for our consideration:- (i) Whether Chengeni Naicker died prior to 1956? (iii) Whether the Will executed by Tmt.Rukmaniammal has been proved in a manner known to law? (iii) Whether the plaintiff is entitled for a partition as prayed for? (iv) To what other relief? Point No.1 13. The entire issue revolves around, date of death of Chengeni Naicker, and it's offshoot of the application of Hindu Succession Act, 1956 . It is well settled principle of law that in order to invoke the provisions under Hindu Succession Act, 1956 , the trigger point is the date of death of the owner of the property. In this case, it is an admitted fact that the suit property originally belongs to Chengeni Naicker by virtue of sale deed dated 27.12.1947 referred under Document No.2361/1944. But, as rightly contended by the learned counsel for the plaintiff, nowhere in the written statement the defendants refers to the date of death of Chengeni Naicker. At this juncture, it is appropriate to refer the pre-suit notice dated 11.02.2008 sent by the plaintiff under Ex.A3. But, as rightly contended by the learned counsel for the plaintiff, nowhere in the written statement the defendants refers to the date of death of Chengeni Naicker. At this juncture, it is appropriate to refer the pre-suit notice dated 11.02.2008 sent by the plaintiff under Ex.A3. In the pre-suit notice, it has been avered that after the death of Chengeni Naicker, the property jointly devolves upon Chengeni Naicker's two daughters viz., Tmt.Unnamalai, Tmt.Navaneetham and his wife Tmt.Rukmaniammal. Therefore, the plaintiff's precise case is that after the demise of Chengeni Naicker, the property devolved upon Tmt.Rukmaniammal and her two daughters. 14. The suit was instituted in the year 2007 i.e., after 63 years from the date of purchase of the suit property and after 50 years from the date of enactment of Hindu Succession Act, 1956 . Therefore, it is common knowledge that the pleadings in their plaint as well as in Ex.A3-Notice, categorically demonstrate that the plaintiff has set up a case that Chengeni Naicker died subsequent to 1956. But, such factum was strongly objected to by the defendants, for first time during his oral evidence by stating that Chengeni Naicker died in 1947. 15. Admittedly, both side did not submit any documentary evidence as to the date of death of Chengeni Naicer. If really the defendants are strong enough and confident that Chengeni Naicker died during 1947, they could have very well pleaded in their written statement. No doubt it is the primordial duty of the plaintiff to prove his case at the first instance. To discharge her burden, the plaintiff has specifically pleaded that after the demise of Chengeni Naicker, the property jointly devolved upon his wife and two daughters. The said pleading has not been specifically denied by the defendants, but in contrast they took strong defence that the plaintiff is noway related, either to Tmt.Rukmaniammal or to the defendants. 16. To put it differently, it is the case of the defendants that the plaintiff did not relate to the original owner Chengeni Naicker, therefore, there is no possibility for her to succeed the suit property jointly with them. But, during Trial, the relationship was admitted by the defendants. 16. To put it differently, it is the case of the defendants that the plaintiff did not relate to the original owner Chengeni Naicker, therefore, there is no possibility for her to succeed the suit property jointly with them. But, during Trial, the relationship was admitted by the defendants. However, the learned counsel for the defendants would invite the attention of this Court as to certain admissions of PW1, and through these admissions, the defendants projected a case that there was no possibility for Chengeni Naicker to be alive until the enactment of 1956 Act. For ready reference, this Court deems it appropriate to extract those admissions:- 17. The above admission was relied by the Trial Court to presume that the death of Chengeni Naicker may be between 1952 or 1953. But, a harmonious reading of the above admission would only demonstrate that the plaintiff did not know as to the exact date of death, but her pleadings in the plaint reflects that such death was subsequent to the enactment of Hindu Succession Act, 1956 . 18. If really Tmt.Rukmaniammal possessed any limited interest, which had a prospect to blossom into an absolute right, there was every possibility to mutate the property in her name. Here, there are no records in respect of mutation. Besides, since the suit has been filed after 51 years from 1956 Act, we may safely presume that any succession would only govern by Hindu Succession Act, 1956 , as a rule, unless the contra is shown. Therefore, it is for the person, who plead contra, to establish such exception with specific pleading. In the case in hand, such pleading overtly is absent. In such view of the matter, the nonchalant and elusive attempt of the defendants to prove contra cannot be appreciated. 19. The above reasoning further vindicated and reinforced from the fact that until filing of the suit, no mutation took place in respect of the suit property and this factum was also admitted by the defendants. If really Chengeni Naicker died prior of 1956, and limited interest vest upon Tmt.Rukmaniammal and blossomed absolute right, she would have mutated the property in her name. The very fact the suit property still stands in the name of Chengeni Naicker would demonstrate the continuance of the property jointly even after the demise of Chengeni Naicker. If really Chengeni Naicker died prior of 1956, and limited interest vest upon Tmt.Rukmaniammal and blossomed absolute right, she would have mutated the property in her name. The very fact the suit property still stands in the name of Chengeni Naicker would demonstrate the continuance of the property jointly even after the demise of Chengeni Naicker. It is in this background, the absence of pleadings in the written statement in respect of date of death of Chengeni Naicker assumes much significance. As rightly contended by the plaintiff, without any pleading, the defendants cannot sprinkle the date of death of Chengeni Naicker in the trial. 20. At this juncture, it is appropriate to refer the judgments relied upon by the learned counsel for the appellant. The Hon'ble Supreme Court in Ram Sarup Gupta' s case [cited supra] held that no party should be permitted to travel beyond their pleading. It has further elaborated the importance of the pleading and held that the pleading is imperative to enable the adversary party to know the case, they have to meet. It is further held in the above judgment that, in order to have a fair trial, it is axiomatic that the parties should state the essential material facts so that the other party may not be taken by surprise. 21. In addition to the above rulings, on the very same principle, the appellant also relied upon some other judgments. For brevity sake, wee desist from referring all the other similar judgments relied by the learned counsel for the appellant. 22. Though the learned counsel for the defendants relied upon a judgment of the Hon'ble Supreme Court in Arunachala Gounder Vs. Ponnusamy and others reported in (2022) 11 SCC 520 , which is a case on the subject of as to how succession has to be dealt when male member dying intestate, based upon the uncodified Hindu Law. This Court does not have any grievance over the proposition laid down in the above Apex Court judgment. But the real issue is, whether the defendants have established their case that the death of Chengeni Naicker is prior to 1956. The answer to the above query is “negative”. 23. Once, there is no proof as to the death of Chengeni Naicker prior to 1956 by virtue of Section 8 Hindu Succession Act, the property devolves upon Tmt.Rukmaniammal, Tmt.Navaneetham and Tmt.Unnamalai. The answer to the above query is “negative”. 23. Once, there is no proof as to the death of Chengeni Naicker prior to 1956 by virtue of Section 8 Hindu Succession Act, the property devolves upon Tmt.Rukmaniammal, Tmt.Navaneetham and Tmt.Unnamalai. Admittedly, Tmt.Navaneetham died issueless and her only legal heir Mr.Natesan was examined before the Court and has deposed that he does not want any share from the suit property. In view of the above statement, the property has to be divided into two equal share and has to be divided between Tmt.Rukmaniammal and Tmt.Unnamalai alloting one such share to each one of them. 24. But in this case, the second line of defence put forth by the defendants is a “Will” [Ex.B1] executed by Tmt.Rukmaniammal. In order to prove the said Will, the attestor to Ex.B1-Will, qua DW2 was examined. Though the execution of the “Will” was disputed, through the evidence of PW2, they proved the Will satisfying the ingredients of Section 63 of The Indian Succession Act, and Section 68 of The Indian Evidence Act. The testator Tmt.Rukmaniammal died almost 20 years after the execution of Will. In fact, the plaintiff did not dispute the disposing state of mind of Tmt.Rukmaniammal and she did not project any suspicious circumstances. Therefore, this Court is of the firm opinion that the defendants have discharged their burden in proving Ex.B1-Will. 25. From the above detailed discussion, what emerges is, 1. the partition has to be considered in accordance with Section 8 of the Hindu Succession Act, 1956 as the death of Chengeni Naicker was after the advent of the above 1956 Act. 2. The Will executed by Tmt.Rukmaniammal is proved. Accordingly, the Chengeni Naicker's property jointly devolved upon Tmt.Rukmaniammal and her two daughters entailing each one of them having right of 1/3 share. Here, in view of relinquishment of share by Navaneetham's husband [PW2], her property also devolve upon Tmt.Rukmaniammal and Tmt.Unnamalai equally. As such, each one of them will have ½ share in Chengeni Naicker's property. 26. Here, Tmt.Unnamalai has 3 children. Therefore, the plaintiff is entitled only to 1/3 rd share in Tmt.Unnamalai's share and she do not have any right in Tmt.Rukmaniammal's property, as she executed Will in favour of the D1, D2 and D3's father late Nagarajan. As such, each one of them will have ½ share in Chengeni Naicker's property. 26. Here, Tmt.Unnamalai has 3 children. Therefore, the plaintiff is entitled only to 1/3 rd share in Tmt.Unnamalai's share and she do not have any right in Tmt.Rukmaniammal's property, as she executed Will in favour of the D1, D2 and D3's father late Nagarajan. If that being the case, the plaintiff is entitled for a share of 8/48, and the 1 st defendant is entitled to have 20/48 and the defendants 2 and 3 each entitled to have 10/48. 27. In the result, the Appeal Suit is partly allowed granting a decree of partition to divide the suit property into 48 shares and to allot 8 shares to the plaintiff. There shall be no order as to costs. Consequently, connected CMP is also closed.