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2018 Supreme(Mad) 3263
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
LAKSHMI - Appellant
Versus
K. SELVARAJ - Respondent
Second Appeal No. 1582 of 2011; Miscellaneous Petition No. 1 of 2011
Decided on : 26-10-2018
Advocate Appeared:
T.V. Ramanujam, Adv.
Headnote:
Hindu Womens Right to Property Act, 1937 - Hindu Succession Act, 1956 - Section 14 (2) - Section 14(1) - Hindu Married Womens Right to Separate Maintenance and Residence Act, 1946 - Husband Property – Possession Of Property - It is claimed that Arumuga Udayar died - His only son through his first wife predeceased him - After his death Amirthammal, widow and her husbands brothers entered into a family partition - Under said partition, a life estate was reserved for Amirthammal and properties were to revert to brothers and their legal representatives after death of Amirthammal - It is contention of plaintiffs that since Arumuga Udayar died prior to advent of Hindu Womens Right to Property Act, 1937, Amirthammal had no right over property as on date of said partition deed - Therefore, according to plaintiffs, Amirthammal had no right over property - Claiming that property continued in possession of brothers of Arumuga Udayar, plaintiffs would seek a declaration of their title to suit properties – Held, Document executed in year 1935 between brothers of Arumuga Udayar and widow, Amirthammal would confer a limited right on Amirthammal over suit properties - Court have already concluded that said document namely partition deed marked as Ex.A.3 is a document executed in recognition of pre-existing right of Amirthammal - Therefore, Section 14 (2) of Act would not apply and it is only section 14(1) that would apply to case on hand - If 14 (1) is to apply, property would become absolute property of Amirthammal on enactment of Hindu Succession Act, 1956 - Reversionary right contemplated under said document would fade into insignificance - Once property becomes absolute property of Amirthammal, she is entitled to deal with it as her own property and therefore, settlement deed executed by her would be a valid document, more particularly, when plaintiffs have not denied its execution – Court is, therefore, of considered opinion that both questions of law will have to be answered in favour of appellants - It is misconception on part of Courts below, regarding existence of right of wife to be maintained out of her husbands property prior to Hindu Womens Right to Property Act, 1937, that has led to erroneous finding regarding scope of the right of Amirthammal over suit properties – Appeal Allowed.
R. SUBRAMANIAN, J.
1. The defendants 2 to 7 in O.S.No.915 of 1996 on the file of the Principal District Munsif Court, Thiruvannamalai are the appellants. The said suit was filed by the respondents/plaintiffs herein seeking declaration of their title to the suit property, for delivery of possession and for mesne profits from the date of plaint till the date of delivery of possession and for costs of this suit.
2. According to the plaintiffs, the suit property originally belong to the joint family of one Arumuga Udayar. The said Arumuga Udayar had two brothers namely Anaikutti Udayar and Abbu Vediyappa Udayar. It is claimed that the said Arumuga Udayar had two wives. He had married one Amirthammal as his second wife, after his first wife had died. Later on, the second wife Amirthammal died on 26.11.1993. The said Arumuga Udayar had no issues and Abbu Vediyappa Udayar had only daughters. The plaintiffs are the grand sons of Anaikutti Udayar through his only son Kannan Udayar.
3. It is the further case of the plaintiffs that Arumuga Udayar, before his marriage with Amirthammal, had executed a settlement deed dated 05.08.1922 settling the suit properties in favour of Amirthammal granting her a life estate and on her death, the suit properties were to devolve among his son through the first wife and the male issues of Arumuga Udayar and Amirthammal, if any. The plaintiffs would contend that the said settlement deed of the year 1922, being a gift of ancestral property by a coparcener, will not confer any title of Amirthammal.
4. It is claimed that Arumuga Udayar died sometime before 1935. His only son through his first wife predeceased him. After his death Amirthammal, the widow and her husband's brothers namely Anaikutty Udayar and Abbu Vediyappa Udayar entered into a family partition on 24.08.1935. Under the said partition, a life estate was reserved for Amirthammal and the properties were to revert to the brothers and their legal representatives after the death of Amirthammal. It is the contention of the plaintiffs that since Arumuga Udayar died prior to the advent of Hindu Women's Right to Property Act, 1937, Amirthammal had no right over the property as on the date of the said partition deed dated 24.08.1935. Therefore, according to the plaintiffs, Amirthammal had no right over the property. Claiming that the property continued in possession of the brothers of Arumuga Udayar, the plaintiffs would seek a declaration of their title to the suit properties.
5. The plaintiffs would further claim that they had filed a suit in O.S.No.1215 of 1980 on the file of the District Munsif Court, Thiruvannamalai seeking a declaration of their title over the property. It is claimed that the said suit was decreed in part and the appeal, therefrom was allowed and the matter was remanded to the District Munsif Court. After remand, the suit came to be dismissed by the learned District Munsif and the plaintiffs' appeal in A.S.No.30 of 1992 was allowed and the plaint was directed to be returned for presentation in the proper Court. Subsequent to the disposal of the appeal, the life estate holder Amirthammal had died and therefore, according to the plaintiffs they had become owners of the property as Legal heirs of Anaikutti Udayar and Abbu Vediyappa Udayar.
6. The suit was resisted by the sole defendant contending that the claim of the plaintiffs that the suit properties are joint family properties of Arumuga Udayar is incorrect. The defendant would claim that the properties were separate properties of Arumuga Udayar since Arumuga Udayar had become a divided brother long before the settlement deeds of the year 1922 and 1935. The said Arumuga Udayar had a son by name Kuttiyappa Udayar who died in or about 1934. The geneology claimed by the plaintiffs was admitted.
7. The defendant would contend that the settlement deed executed by Arumuga Udayar on 05.08.1922 is valid. It was also claimed that the partition deed dated 24.08.1935 is also true and valid
