IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/03/2004
CORAM
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
SECOND APPEAL No.195 of 1993
1. Arunachalam
2. Periya Natchiar .. Appellants
-Vs-
1. Arasazhavar Ammal
2. Padaga Natchiar .. Respondents
This second appeal is preferred under Sec.100 of the Code of Civil
Procedure against the judgment and decree in A.S.No.28 of 1989 on the file of
the Sub Court, Tuticorin, dated 14.8.1992 confirming the judgment and decree
in O.S.No.404/87 on the file of the District Munsif Court, Kovilpatti, dated
9.2.1989.
!For Appellant : Mr.P.Peppin Fernando
^For Respondents : Mr.V.Shanmugam
:JUDGMENT
What is challenged herein is the judgment of the learned Subordinate
Judge, Tuticorin, made in A.S.No.28 of 1989 affirming the judgment of the
trial Court in a suit for declaration and consequential reliefs.
2. Necessary facts for the disposal of this appeal are as follows:
The suit property and two other items originally belonged to the three
brothers namely Devapiran Pillai, Thothathirinatha Pillai and Ramasamy Pillai.
The plaintiffs are the daughters of Devapiran Pillai. Devapiran Pillai
executed a registered maintenance deed dated 27.6.19 21 in favour of his
sister Gomathy Ammal, giving her a life interest in the suit property, and
after her life time, it should go to the three brothers or their legal heirs.
Devapiran Pillai died leaving behind the plaintiffs as heirs.
Thothathirinatha Pillai died unmarried. The said Gomathy Ammal died in the
year 1972. The third defendant alone survived the other two brothers. The
third defendant demanded the plaintiffs for partition, and in the ora l
partition among the members of the family, the third defendant was given 35
cents in S.No.8 39A/2 and 1.36 acres in S.No.841A/6, and the plaintiffs were
given the suit property. The third defendant sold his share to one Samy
Naicker and others. The third defendant has no right over the suit property.
After the life time of Gomathy Ammal, the property was in the possession and
enjoyment of the plaintiffs alone. One Alagiri Ramanujam managed to get patta
in his name in respect of the suit property. On petition by the plaintiffs,
the entry in that regard was deleted by the Tahsildar, and patta was issued to
the plaintiffs and to the third defendant on the basis of the maintenance deed
dated 27.6.1921. Taking advantage of the patta, the third defendant colluded
and conspired with the defendants 1 and 2 and brought about a sham and nominal
sale deed in the name of the defendants 1 and 2. The third defendant sold the
suit property to the defendants 1 and 2. Hence, the plaintiffs were
constrained to file the suit for the said reliefs.
3. The suit was resisted by the defendants 1 and 2 stating that the
alleged maintenance deed was false; that the plaintiffs’ father had no right
to execute such a deed; that the said Gomathy Ammal never enjoyed the property
pursuant to the deed; that she relinquished her right in the suit property on
18.7.1964; that there was no partition between the plaintiffs and the third
defendant; that after the said relinquishment by her, the third defendant
alone was entitled to the properties; that the defendants 1 and 2 purchased
the same from the third defendant, and they were in enjoyment of the same, and
hence, the suit was to be dismissed.
4. The third defendant contested the suit by stating that originally,
as per the provisions of the Hindu Succession Act, the plaintiffs had no
shares in the suit property; that the third defendant alone was entitled to
the property; that Gomathy Ammal executed a release deed dated 18.7.1964 in
his favour; that the plaintiffs never enjoyed the suit property; that the
third defendant entered into an agreement for Rs.80,000/- and received
Rs.4,000/-; that the said sale transaction has not yet been completed, and
hence, the suit was to be dismissed.
5. The trial Court framed the necessary issues, tried the suit and
decreed the same. On appeal by the defendants 1 and 2, their plea was
rejected by the first appellate forum also. Pending the first appeal, the
third defendant died, and the plaintiffs were recorded as legal
representatives. Thus, this second appeal has been brought forth by the
defendants 1 and 2.
6. At the time of admission, the following substantial question of
law was formulated by this Court:
“Whether the Courts below were correct in holding that in a oral partition the
3rd defendant relinquished his right over the suit property after receiving 1
acre and 36 cents in Survey No.841/A6 and another 35 cents in Survey No.839/A2
in Nalatinputhur village without rendering any finding on this aspect?”
7. This Court heard the learned Counsel for the appellants and also
the learned Counsel for the respondents on those contentions.
8. This Court is of the considered opinion, on hearing the rival
submissions and scrutiny of the materials, that the appeal requires an
outright rejection by this Court.
9. Admittedly, the suit property originally belonged to the three
brothers Devapiran Pillai, Thothathirinatha Pillai and Ramasamy Pillai. The
third defendant is the last brother. While so, the eldest brother Devapiran
Pillai executed Ex.A1, a deed of maintenance, in favour of their sister
Gomathy Ammal under Ex.A1 on 27.6.1921, wherein it has been stated that the
said Gomathy Ammal should recover the income from the properties and enjoy the
same, and on her death, the properties should go to the heirs of these three
brothers. The said Devapiran died in 1944 without marriage. Gomathy Ammal
also died in 1972. According to the plaintiff, during the life time of
Gomathy Ammal, the third defendant was demanding for a partition, and
accordingly, by way of oral partition, two items were allotted to the third
defendant, and the suit property was allotted to the plaintiffs, and the third
defendant has executed a sale deed in favour of the defendants 1 and 2 in
respect of the suit property, and the defendants 1 and 2 pursuant to the sale,
were put in possession, and they have become the owners of the properties. It
is the further case of the plaintiffs that the sale deeds are not valid; that
on the death of Gomathy Ammal, the plaintiffs as heirs of these three brothers
available, are to get the properties, and hence, they are entitled to a
declaration. The suit was contested by the defendants 1 and 2 stating that in
the oral partition entered into between Gomathy Ammal and the third defendant,
the suit property was allotted to the third defendant, pursuant to which he
sold the same to the defendants 1 and 2, and thus, they are the owners of the
property, and hence, the plaintiffs’ claim was to be rejected. Both the
Courts below were perfectly correct in rejecting the defence plea.
10. It is not in controversy that the suit property originally
belonged to the said three brothers, and the third defendant is the third
brother. The eldest brother executed the maintenance deed, which is evident
from Ex.A1, giving Gomathy Ammal, their sister, the right for enjoyment of the
property and deriving the income therefrom during her life time, and on her
death, the property should go to the hands of the heirs of the three brothers.
It is not in controversy that Gomathy Ammal died in the year 1972. The
defence plea was that during the life time of Gomathy Ammal, when a demand for
partition was made by the third defendant, the property was orally partitioned
and was handed over to the third defendant, which would be nothing but
repugnant to the terms found under Ex.A1, which is admitted by both the
parties. That apart, as far as the oral partition and the allotment of shares
are concerned, the Courts below have found that it could not be accepted both
on facts and in law also. The first and second defendants denied the relief
asked for by the plaintiffs by stating that they have purchased the suit
property from the third defendant. It is pertinent to point out that the
original sale deeds were not placed before the trial Court. The third
defendant’s heirs have filed a written statement before the trial Court
challenging those sale deeds and stating that they were not supported by
consideration and not acted upon. The third defendant pending the first
appeal died, and the plaintiffs have been recorded as the legal
representatives of the third defendant.
11. At this time of the second appeal, the learned Counsel for the
appellants would submit that Gomathy Ammal, a female member of the joint
family, was given maintenance under Ex.A1 maintenance deed, wherein she was
given a life interest, and in view of the provisions under Sec.14(1) of the
Hindu Succession Act, it has become absolute in her hands; that on her death,
the third defendant became the owner of the property, and hence he was
competent enough to execute the sale deed in favour of the defendants 1 and 2.
This contention cannot be accepted for more reasons than one. It cannot be
stated that she was having any pre-existing right, since she was only a
sister, and nowhere, this plea has been taken all along the proceedings; but,
this is an invention at the time of the second appeal. Attractive though the
contention of the learned Counsel for the appellants may be, it does not stand
the scrutiny of law. In the absence of the production of the sale deeds,
under which the defendants 1 and 2 claimed their title and that too, when the
sale deeds were challenged by the vendor under those sale deeds namely the
third defendant, Gomathi Ammal cannot claim a full-fledged ownership in the
property. The Court is of the view that the facts on hand do not warrant
application of Sec.14(1) of the Hindu Succession Act. In view of the
available evidence, the defence plea has been rejected by both the Courts
below and rightly too. Thus, this Court is unable to see any merit in this
appeal, and the same is liable to be dismissed.
12. In the result, this second appeal is dismissed, confirming the
judgments and decrees of the lower Courts and leaving the parties to bear
their costs.
Index: yes
Internet: yes
To:
1. The Subordinate Judge
Tuticorin
2. The District Munsif
Kovilpatti
3. The Record Keeper
V.R. Section
High Court, Madras.