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2018 Supreme(Mad) 1371
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
Mrs. S. Rathinammal & Ors. – Plaintiffs
Vs
Mrs. C. Chamundeeswari (since deceased) & Ors. – Defendants
C.S.No.610 of 2013
Decided On : 30-01-2018
For the Plaintiffs : Mr. K.V. Babu
For the Defendants : Mr. P.M. Bakthavatsalam, Mr. C. Shankar
Headnote:
Indian Succession Act – Section 213 – Suit for declaration – Decree for partition – Suit for declaration of the Partition Deed, Settlement Deed and sale deed as null and void and for grant of a preliminary decree for partition and separate possession – Suit properties originally belonged to one M.P. Subramania Mudaliar, being his self-acquisition. The said M.P. Subramania Mudaliar, had died, leaving behind four sons and his wife namely Kanniammal had predeceased him. – The plaintiffs are the wife and children of one of the sons of M.P. Subramania Mudaliar, namely, S. Shanmugam, who died on 01.09.1990. – The defendants 1 to 4 are the legal heirs of another son of M.P. Subramania Mudaliar, by name S. Chandrasekaran, the first defendant died pending suit and defendants 2 to 4 have been recorded as the legal representatives of the deceased first defendant. – Defendants 5 and 6 are the other two sons of M.P. Subramania Mudaliar. Defendants 7 to 12 are the great grand children of the deceased M.P. Subramania Mudaliar, Defendants 13 to 16 are the purchasers of one item of the suit property from defendants 1 to 4 and 7 to 12, under a Sale Deed dated 29.08.2011. – Held, In view of the categorical prohibition contained under Section 213 of the Indian Succession Act as well as the Law laid down by this Court in the Judgments, referred to supra, Court will have to necessarily conclude that the defendants cannot establish their title or interest over the suit properties through and un-probated Will. – Hence this issue is answered in favour of the plaintiffs and against the defendants. – Relationship of the parties is not in dispute. – The fact that the M.P. Subramania Mudaliar, had four sons and one of the sons Shanmugam died on 01.09.1990 is admitted. The fact that the plaintiffs are the wife and children of Shanmugam is also admitted. – Once it is found that the Will has not been probated Shanmugam would be entitled to equal share along with the other three brothers, viz. Chandrasekaran, Arumugam, Dhakshinamoorthy. – Therefore, Shanmugam will be entitled to 1/4th share in the suit properties, since the wife of M.P. Subramania Mudaliar had predeceased that 1/4th share of the Shanmugam would devolve on plaintiffs in equal shares. – Counsel appearing for the defendants 13 to 16 would contend that they being bona fide purchasers for value their right should be protected. – He would also rely upon the judgment of the Division Bench of this Court in OSA filed by them against an order of injunction restraining them from putting up construction over the second item of suit schedule, wherein the Division Bench has taken into account, the fact that the plaintiffs have not claimed any injunction against the first item of property, which has fallen to the share of defendants 5 and 6 and they appeared to target only the appellants, who are purchasers of property shown as item 2. – Division Bench is also relied upon the judgment of the Hon’ble Supreme Court in Mandali Ranganna & Others v. T. Ramachandra & Others, reported in 2008 (11) SCC 1, considering the above pronouncement, Court is of the considered opinion that interest of justice require that while working out equities at the time of passing a final decree in the allotment is so done, so as to preserve rights of the defendants 13 to 16 under the Sale Deed – Plaintiffs 1/4th share could be allotted to them in such manner that it does not affect the rights of defendants 13 to 16 under the Sale Deed – Order Accordingly
Suit for declaration of the Partition Deed, Settlement Deed and sale deed as null and void and for grant of a preliminary decree for partition and separate possession.
2. The brief averments in the plaint are as follows:
The suit properties originally belonged to one M.P. Subramania Mudaliar, being his self-acquisition. The said M.P. Subramania Mudaliar, had died on 28.12.1986, leaving behind four sons and his wife namely Kanniammal had predeceased him. The plaintiffs are the wife and children of one of the sons of M.P. Subramania Mudaliar, namely, S. Shanmugam, who died on 01.09.1990. The defendants 1 to 4 are the legal heirs of another son of M.P. Subramania Mudaliar, by name S. Chandrasekaran, the first defendant died pending suit and defendants 2 to 4 have been recorded as the legal representatives of the deceased first defendant. Defendants 5 and 6 are the other two sons of M.P. Subramania Mudaliar. Defendants 7 to 12 are the great grand children of the deceased M.P. Subramania Mudaliar, Defendants 13 to 16 are the purchasers of one item of the suit property from defendants 1 to 4 and 7 to 12, under a Sale Deed dated 29.08.2011.
3. According to the plaintiffs, it is only when the purchasers attempted to demolish the construction in the suit second item did they come to know that the defendants 1 to 4 and 7 to 12 have created a Partition Deed on 27.02.2002, as if M.P. Subramania Mudaliar, had executed a Will on 24.12.1986, bequeathing the property to be enjoyed for life by his three sons and thereafter the same will have to devolve on their children. Though registered the said Will was not probated in a Court of competent jurisdiction. It is also claimed that in the said partition the first item of suit property was allotted to the defendants 5 and 6 and the second item was allotted to Chandrasekaran, who is one of the sons of M.P. Subramania Mudaliar. The said Chandrasekaran tracing his title, under the Partition Deed dated 27.02.2002 had chosen to execute a deed of settlement dated 09.07.2008, under which the property allotted to him namely the suit second item was settled in favour of his daughter Dhanalakshmi and sons C. Sivasubramanian and Balasubramanian, who are defendants 2, 3 and 4 herein. It was also discovered that claiming under the said settlement deed the defendants 2, 3 and 4 along with defendants 7 to 12 had sold the property to defendants 13 to 16 under a Registered Deed of Sale dated 29.08.2011, registered as document No.3832 of 2011 in the office of Sub Registrar, Sembium. The plaintiffs would further contend that recitals in the said sale deed do not refer to the Will said to have been executed by M.P. Subramania Mudaliar, on 24.12.1986, just prior to his death. It is also seen from the recitals that the minors property has been sold and the permission of the Court has been obtained and the share of the minors has been deposited in the Bank.
4. Claiming that the defendants 2 to 4 and 7 to 12 have no exclusive right, since the Will said to have been executed by M.P. Subramania Mudaliar has not been duly probated, the plaintiffs have come forward with the suit for partition claiming 1/4th share in the two items of the properties shown as schedule 1 and 2 in the plaint. The plaintiffs also seek a declaration that the Partition Deed dated 27.02.2002 entered into between Chandrasekaran and defendants 5 and 6 is null and void, for a declaration that the settlement deed dated 09.07.2008 executed by Chandrasekaran in favour of defendants 1 to 4 is null and void, declaration that the Sale Deed dated 29.08.2011 executed by defendants 1 to 4 and 7 to 12 in favour of defendants 13 to 16 is also null and void and consequently for partition and separate possession of the plaintiffs 1/4th share (1/12th share each).
5. The first defendant had filed a written statement, which is adopted by defendants 2 to 8, wherein it is contended that M.P. Subramania Mudaliar had executed a Will, which is a registered instrument
