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2017 Supreme(Mad) 37
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
G. Saraswathi and Ors. - Plaintiffs
Vs.
K. Ganesan and Ors. - Defendants
C.S.No.419 of 2013
Decided On : 03-01-2017
For the Plaintiffs : Mr. R. Damodaran
For the Defendants : Mr. M. Madhu Prakash
The main legal point established in the judgment is that in the case of ancestral property, settlements can be valid if done with the consent of all co-parceners, and the unilateral cancellation of such settlements without the reserved power of revocation is not valid.
Headnote:
Partition - Ancestral Property - 2128 sq.ft. land inherited by Kanniappa Naicker - Settlement Deeds executed in 1986 and cancelled in 1995 - Validity of cancellation - Plaintiffs not entitled to partition - Suit dismissed
Fact of the Case:
The suit is filed for partition and separate possession of the plaintiffs 4/6th share in the properties inherited by Kanniappa Naicker. The plaintiffs claim that the properties are ancestral and that the Settlement Deeds executed in 1986 and cancelled in 1995 are not valid. The defendants argue that the settlements were done with the consent of all co-parceners and are valid.
Finding of the Court:
The court found that the property inherited by Kanniappa Naicker is ancestral and not self-acquired. It held that the Settlement Deeds executed in 1986 in favor of his sons were valid as they were done with the consent of all co-parceners. The court also found that the cancellation of the Settlement Deeds in 1995 by Kanniappa Naicker was not valid as it lacked the power of revocation reserved in the original deeds. As a result, the plaintiffs were not entitled to partition.
Issues: The court analyzed the character of the property, the validity of the Settlement Deeds and their cancellation, and the entitlement of the plaintiffs to partition.
Ratio Decidendi: The property was held to be ancestral, and the Settlement Deeds executed in 1986 were found to be valid as they were done with the consent of all co-parceners. The court also emphasized that the cancellation of the Settlement Deeds lacked the necessary power of revocation and was therefore not valid. As a result, the plaintiffs were not entitled to partition.
Final Decision: The suit for partition and separate possession of the plaintiffs' share was dismissed by the court.
The suit is filed for partition and separate possession of the plaintiffs 4/6th share in the properties morefully described in the 'A' and 'B' schedule below after division of the properties by metes and bounds.
2. The brief facts of the case of the plaintiffs are as follows:
(i) According to the plaintiffs, their father, viz., Kanniappa Naicker inherited an extent of 2128 sq.ft. of land from his late father, viz., Murugesa Naicker as his share at Door No. 21/23 at Mettu Street, Ayanavaram, Chennai with a right to use common passage of 40'x 4' in Paimash No. 1036/2 and T.S. No. 14, Block No. 29, Patta No. 1665 along with his brother, viz., Panchatchara Naicker, vide a Deed of partition dated 15.04.1964, registered as Document No. 1264/64 at S.R.O., Sembium. The said Kanniappa Naicker had been in possession and enjoyment of the said 2128 sq.ft. land without any interruption.
(ii) The plaintiffs state that though the Kanniappa Naicker had two sons and 4 daughters, he has settled the inherited property dividing it into two halves settling 1124 sq.ft. in the name of his elder son Ganesan, the first defendant, vide gift settlement dated bearing No.2144/86 dated 26.6.1986 at S.R.O., Sembium and the other extent viz., 1072 sq.ft. in favour of his second son, K.Jeyabal, the husband of the second defendant and father of the defendants 3 and 4, vide Settlement Deed document No. 2143 of 2008, dated 26.6.1986. Thereafter, the said Kanniappa Naicker had cancelled the said two Settlement Deeds made in favour of his two sons by executing two Cancellation Deeds, viz, 992/95, dated 19.4.1995 with regard to his elder son Ganesan and 1228/1995, dated 8.5.1995 with regard to his younger son Jayapal.
(iii) The plaintiffs further submit that after the said cancellation, the suit properties were possessed and enjoyed by the said Kanniappa Naicker till his death on 6.4.2004. His younger son K.Jayapal also died on 04.02.2005 leaving behind him his wife Ponniammal, the second defendant and two sons J.Balachandar and J.Janarthanan, the third and fourth defendants respectively, as his legal heirs. After the death of Kanniappa Naicker, his wife Chellammal and her sons and daughters were in joint possession and enjoyment of the suit properties. While so, the said Chellammal died on 10.02.208. Since then, the defendants 1 to 4 were demanding the plaintiffs to partition the schedule mentioned properties equally among all the legal heirs of late Kanniappa Naicker, but, on some pretext or other, the defendants 1 to 4 have been evading the same.
(iv) The plaintiffs further state that the third defendant had instituted a suit in O.S.No.9403 of 2011 on the file of the XIV City Civil Court, Chennai, without arraying his mother and brother as plaintiffs in the suit praying for permanent injunction against the first defendant and the plaintiffs herein with regard to suit 'B' schedule property and that the same is pending as on the date of filing of this suit. In these circumstances, they have left with no other option but to file the present suit for partition and separate possession.
3. The brief facts of the case of the defendants 2 to 4 are as follows:
(i) The second defendant filed his written statement denying the averments made in the plaint on behalf of defendants 3 & 4 also.
(ii) According to the second defendant, though Kanniappa Naicker had two sons and four daughters, he has settled the inherited property dividing it into two halves settling 1124 sq.ft. in the name of his elder son Ganesan, the first defendant, vide gift settlement dated bearing No.2144/86 dated 26.6.1986 at S.R.O., Sembium and the other extent viz., 1072 sq.ft. in favour of his second son, K.Jeyabal, the husband of the second defendant and father of the defendants 3 and 4, vide Settlement Deed document No.2143 of 2008, dated 26.6.1986 at S.R.O., Sembium.
(iii) The second defendant
