Back
2013 Supreme(Mad) 815
High Court of Judicature at Madras
M. DURAISWAMY, J.
M. Govindasamy & Another
Versus
S. Sulochana & Another
A.S. No. 795 of 2008 & C.M.P. No. 1 of 2008 & Cross Obj. No. 133 of 2010
Decided On : 08-02-2013
For the Appearing Parties:D. Krishna Kumar, S.V. Jayaraman, Senior Counsel for T. Dhanasekar, K. Arangeswaran, Advocates.
The main legal point established in the judgment is the entitlement of a plaintiff to a share in joint family properties and the grant of permanent injunction till the partition is effected.
Headnote:
Joint Family Property - Partition - Hindu Succession Act - [Joint Family Property] - [Partition] - [Hindu Succession Act]
Fact of the Case:
The plaintiff filed a suit for partition, permanent injunction, and possession of ancestral properties. The trial court passed a preliminary decree for partition, finding the plaintiff entitled to 1/6th share in Schedule 2 and 3 of the properties and 1/3rd share in Schedule 4. The first defendant appealed against this judgment.
Finding of the Court:
The court found that the plaintiff was entitled to 1/6th share in Schedule 2 and 3 of the properties and 1/3rd share in Schedule 4. The court also granted a decree for permanent injunction till the partition is effected.
Issues: 1. Entitlement of the plaintiff to shares in the suit property. 2. Whether the properties purchased in the name of the plaintiff and her mother are joint family properties. 3. Entitlement of the plaintiff for permanent injunction.
Ratio Decidendi: The court held that the properties purchased from joint family funds were joint family properties and entitled the plaintiff to a share in those properties. The court also found that the plaintiff was entitled to permanent injunction till the partition is effected.
Final Decision: The appeal was partly allowed, and the cross objection was dismissed. The court confirmed the decree passed by the trial court, granting the plaintiff 1/6th share in Schedule 2 and 3 of the properties and 1/3rd share in Schedule 4. No costs were awarded.
1. The above first appeal arises against the judgment and decree in O.S.No.34 of 2007 on the file of the Additional District Court cum Fast Track Court No.1, Erode.
2. The first defendant is the appellant, the first respondent was the plaintiff and the second respondent was the second defendant in the suit.
3. The plaintiff filed the suit in O.S.No.34 of 2007 for partition, permanent injunction and for possession.
4. The plaintiff, who is the first respondent in the appeal has filed the above Cross Objection challenging the finding of the trial Court in paragraph-37 of the judgment holding that the Schedule 3 & 4 of the suit properties are joint family properties.
5. The brief case of the plaintiff is as follows:
(i) According to the plaintiff, she is the daughter of Late V.T.A.Marimuthu Chettiar. The first defendant is her younger brother and the second defendant is her younger sister. The plaintiff and defendants' grandfather Late T.Arumugam Chettiar was running an Oil Mill and his son Marimuthu Chettiar was also along with his father engaged in the business. Arumugam Chettiar out of his own business purchased several properties at Chithode and one house at Erode. On 14.11.1946, Arumugam Chettiar, his sons and one Angammal, minor daughter of Natesan Chettiar executed a Partition Deed and in the said partition, Arugmugam Chettiar was allotted 'A' Schedule property and Marimuthu Chettiar was allotted 'B' Schedule property.
(ii) In the year 1958, V.T.A.Marimuthu Chettiar purchased a house at Chithode out of his business income and another property, a vacant land of about 5,360 sq.ft., with a tiled roof and a go-down built thereon in or around 1972. The property allotted to V.T.A.Marimuthu Chettiar, under 'B' Schedule in the partition, is the ancestral property as far as the plaintiff and defendants are concerned. Marimuthu Chettiar died intestate on 20.04.1982, leaving behind his wife, Deivanaiammal, the plaintiff and defendants as his legal heirs. After the death of Marimuthu Chettiar, the plaintiff and defendants are entitled to their respective shares in the said properties.
(iii) Schedule 2' is the ancestral property and Items 1 & 2 in Schedule 3' are the self acquired properties of Marimuthu Chettiar. Schedule 2' is the property allotted to Marimuthu Chettiar in the partition. The plaintiff and defendants are entitled to 1/3rd share each in the property. Deivanaiammal, during her life time, purchased a vacant land measuring an extent of 5,670 sq.ft., on 16.11.1972, which is Schedule 4' of the suit property. The said Deivanaiammal died intestate on 27.07.1996 at Chithode, leaving behind the plaintiff and defendants as her legal heirs. The plaintiff and defendants are entitled to 1/3rd share each in her property. The plaintiff purchased a house site in Erode measuring an extent of 5,700 sq.ft., on 16.11.1972.
(iv) The original Sale Deed was handed over to the first defendant for prosecuting a litigation and thereafter, the first defendant retained the document with some ulterior motive. The plaintiff sent a letter dated 03.07.2004 requesting the first defendant to return the original Sale Deed, but the first defendant did not respond. In the notice dated 02.07.2004 sent by the first defendant, he admitted that all the properties were purchased out of the joint family income and also stated that the plaintiff and her sister Iyyammal are entitled to shares in all Items of the property and their shares are to be adjusted in value to the debts incurred by the first defendant towards medical expenses and business of their father. The first defendant also admitted that he was managing the Oil Mill run by his father since 1962. The doctrine of Pious obligation is cast more on the son. The vacant site in Erode, Kasipalayam Village, Subramaniam Nagar, is the separate property of the plaintiff and none has any right over the said property. Despite repeated demand for partition by the plaintiff, the first defendant di
