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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
A. Kanagalakshmi & Others - Plaintiffs
Versus
V. Gururaj & Others – Defendants
C.S. No. 662 of 2010
Decided On : 06-04-2018
Hindu Succession Act, 1956 – Section 6 – Suit for partition – Plaintiffs 1 to 3 and the defendants 1 to 10 are the sons and daughters of T.G.Vellaya Nadar, who died on 10.05.2006, leaving behind the plaintiffs, defendants 1 to 10 and Tmt.Thanlakshmi Ammal, his wife. – The said Thanalakshmi Ammal died 19.07.2006. – One of the sons of T.G.Vellaya Nadar, V.Shanmugam, died, issueless and intestate on 01.02.1995. – Another son of T.G.Vellaya Nadar, viz. V.Vijayakumar, died intestate leaving behind his wife, who has been added as the 6th defendant in the suit. – According to the plaintiffs, the ancestral properties of the joint Hindu family of which T.G.Vellaya Nadar was the kartha, were vast extent of landed property at Tharangambadi Village in Nagapattinam District and Chennai including a bungalow with 25 grounds of land situate in Door No.21/57, Dr.Azhagappa Road, Purasawalkam, Chennai 600 084. – By a Registered Partition Deed dated 13.12.1956, bearing Document No.12/1957, the agricultural lands situate in Tharangambadi and the properties at Chennai were partitioned amongst the family members. – Held, Plaintiffs have not claimed as the heirs of Thanalakshmi Ammal, the suit being one for partition, Court is of the considered opinion that the shares must be worked out, in accordance with law de hors the claims of the parties. – This Court had in Annapoorni v. Janaki, reported in 1995 (1) LW 141, held that in a partition suit, the Court is obliged to work out the shares of the parties, in accordance with law even if a claim is not made on a particular plea. Defendants 14 to 17 will take the share that the 8th defendant is found to be entitled to. – It has been held that the suit property is the ancestral property belonging to the joint family and hence the Settlement Deed executed by T.G.Vellaya Nadar, is not valid and binding on the parties. – Insofar as the Sale Deeds in favour of defendants 11 to 13 are concerned, admittedly, the plaintiffs are not parties to the said, once it is found that the plaintiffs are entitled to the share in the said property, the Sale Deed are undoubtedly not binding on the plaintiffs. – Plaintiffs will be entitled to the preliminary decree for partition and separate possession of their 307/10584 shares each in the suit property. – In fine, there will be a preliminary decree declaring the plaintiffs 307/10584 share each in the suit properties. – The plaintiffs have not prayed for mesne profits, hence it is made clear that they will not be entitled to any past mesne profit – Order Accordingly
1. The suit for partition and possession of 3/13th share of the plaintiffs in the suit property.
2. The case of the plaintiffs in brief is as follows:
The plaintiffs 1 to 3 and the defendants 1 to 10 are the sons and daughters of T.G.Vellaya Nadar, who died on 10.05.2006, leaving behind the plaintiffs, defendants 1 to 10 and Tmt.Thanlakshmi Ammal, his wife. The said Thanalakshmi Ammal died 19.07.2006. One of the sons of T.G.Vellaya Nadar, V.Shanmugam, died, issueless and intestate on 01.02.1995. Another son of T.G.Vellaya Nadar, viz. V.Vijayakumar, died intestate leaving behind his wife, who has been added as the 6th defendant in the suit.
3. According to the plaintiffs, the ancestral properties of the joint Hindu family of which T.G.Vellaya Nadar was the kartha, were vast extent of landed property at Tharangambadi Village in Nagapattinam District and Chennai including a bungalow with 25 grounds of land situate in Door No.21/57, Dr.Azhagappa Road, Purasawalkam, Chennai 600 084. By a Registered Partition Deed dated 13.12.1956, bearing Document No.12/1957, the agricultural lands situate in Tharangambadi and the properties at Chennai were partitioned amongst the family members.
4. According to the plaintiffs, in the said Partition Deed dated 13.12.1956, the bungalow along with 25 grounds of lands in Dr.Azhagappa Road, Purasawalkam, Chennai 600 084 and a house site in Tharangambadi were kept undivided common family property and the properties that were kept undivided, where shown as “J” Schedule properties in the Partition Deed. According to the plaintiffs, they are entitled to equal rights over the said property along with defendants 1 to 10. It is also claimed by the plaintiffs that they, along with defendants 1 to 10, have sold the house and land in Tharangambadi Village covered in J Schedule property in the Partition Deed and the plaintiffs along with defendants 1 to 10 have jointly executed a registered Power of Attorney dated 02.07.2009, bearing Document No.506/2009. It is also contended that the plaintiffs were paid their share of the consideration received on the sale of the property situate at Tharangambadi.
5. The claim of the plaintiffs is that, defendants 1 to 10 have entered into an agreement of sale on 08.04.2010 with defendants 11 to 13 for sale of the land measuring about 4 grounds and 7 sq. feet situate in Dr.Azhagappa Road, Purasawalkam, Chennai 600 084. According to them, it is also a common property of the family shown in “J” Schedule in the Partition Deed. The defendants 1 to 10 have claimed that bungalow and 25 grounds of land have been partitioned and they are alone entitled to the same. The defendants 1 to 10 with an intention to defraud the plaintiffs have entered into the Sale Agreement dated 08.04.2010. As per the Partition Deed dated 13.12.1956, the bungalow and 25 grounds of land have been kept as an undivided common property of the family. When the defendants 1 to 10 joined with the plaintiffs and sold the Tharangambadi house and land, which was kept in common, considering the same as a common property of the family, they have entered into sale agreement to sell the Chennai property, with an intention to defraud the plaintiffs and defeat their rights over the properties.
6. According to the plaintiffs, they are entitled to 1/13th share each in the suit property and they claimed that the agreement does not bind them with reference to their share. The plaintiffs would further contend that on coming to know about the sale agreement dated 08.04.2010, the plaintiffs have caused a notice to the defendants 1 to 10 and defendants 11 to 13 on 16.06.2010, requiring them to divide the property and allot their share in the schedule mentioned property. Copies of the notices were also marked to the Sub Registrar, Purasaivalkam. Though the defendants have received the notice neither did they comply with th
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