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2019 Supreme(Mad) 2753
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. HEMALATHA, J.
L. Kandasami – Appellant
Versus
Chandrammal – Respondent
S.A. No. 18 of 2010, M.P. No. 1 of 2010
Decided On : 05-08-2019
Subject
Property Law - Partition
Act Referred
CIVIL PROCEDURE CODE : S.100, S.91, S.92
HINDU SUCCESSION ACT : S.14
Headnote
Civil Procedure Code, 1908 - Section 100 - Hindu Succession Act 1956 - Section 14 - Benami Transaction (Prohibition) Act, 1988 - Section 3(1)(a) - Case of plaintiff is as follows - Plaintiff is absolute owner of suit property Village Vellore measuring - Suit property originally belonged - One mother of first defendant purchased suit property through two registered sale deeds - According to plaintiff total extent cents with a well and that his mother purchased share in well - His further contention is that remaining share in well and cents of land is ancestral property of and others - Subsequently settled suit property in favor plaintiff through registered settlement deed - Plaintiff had further contended that ever since date of execution settlement deed he has been in possession and enjoyment property - While so when plaintiff was away from suit village first defendant took forcible possession cents in suit property - Held, Hindu Law - Therefore there cannot be any quarrel about the proposition that a person not having pre existing right over property can neither claim share as matter of right nor venture to act upon such property in capacity of sharer – Self acquisition of father he can always treat his self acquired property as joint family property and throw same into common hutch pot and can enter into partition with his sons - But this is altogether different case where suit property belonged to plaintiffs and first defendants mother absolutely - case absolutely there is no pleading by first defendant that suit properties were not purchased by his father for benefit of his mother - In absence of specific pleading it has to be presumed that purchase of property by father in name of his wife was for benefit of his wife mother of plaintiff and first defendant purchased property during year - Though as per Hindu Succession mother of plaintiff had limited right on date of purchase properties same had blossomed into an absolute right as per Section Hindu Succession Act - Relevant to extract Section Hindu Succession Act - Any property possessed by female Hindu whether acquired before or after commencement of this Act shall be held by her as full owner thereof and not as limited owner settlement deed also shows that settler had settled properties in favor of plaintiff and possession was also given to him on date of settlement deed - Settler had not reserved right of cancellation of settlement deed - Plaintiff had produced registered settlement deed and original sale - Therefore Additional District Munsif Vellore was right in decreeing suit first appellate court without adverting to provisions of law had dismissed suit merely based on admissions made by plaintiff as regards execution of partition deed - Even assuming that partition deed was executed since both plaintiff and defendant did not have any pre existing right on date of execution partition deed they cannot claim any right over suit property through partition deed - Appeal allowed
Advocate Appeared:
For the Appellant : Mr. R. Ganesan.
For the Respondent: Mr. T. Dhanyakumar.
JUDGMENT :
R. HEMALATHA, J.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the decree and judgment dated 09.01.2009 passed in A.S. No. 28 of 2008 by the Subordinate Judge, Vellore, reversing the decree and judgment dated 24.03.2008 passed in O.S. No. 100 of 1994 by the Additional District Munsif, Vellore.
1. The appellant is the plaintiff in O.S. No. 100 of 1994 on the file of the Additional District Munsif, Vellore and respondent in A.S. No. 28 of 2008 on the file of the Subordinate Judge, Vellore.
2. The parties are referred to as per their ranking in the original suit and at appropriate places, their ranks in the present appeal would also be indicated, if necessary.
3. The appellant/plaintiff filed the above suit for declaration of his title to the suit property and also for recovery of possession from the respondents/defendants.
4. The brief case of the plaintiff is as follows. The plaintiff is the absolute owner of the suit property in S. No. 79/1 of Idayanjath Village, Vellore measuring 0.50 acres. The suit property originally belonged to one Krishnasami Gounder and Ramasami Gounder. One Kannammal, the mother of the first defendant purchased the suit property through two registered sale deeds dated 12.07.1952 (Ex.A1 and Ex.A2). According to the plaintiff the total extent of S. No. 79/1 is 1.01 cents with a well and that his mother Kannammal purchased 0.64 cents and 2/3 share in the well. His further contention is that the remaining 1/3 share in the well and 0.32 cents of land is the ancestral property of Kandasami, Purushotaman and others. Subsequently, Kannammal settled the suit property in favour of the plaintiff through a registered settlement deed dated 04.02.1984 (Ex.A3). The plaintiff had further contended that ever since the date of execution of the settlement deed (Ex.A3), he has been in possession and enjoyment of the property. While so, when the plaintiff was away from the suit village, the first defendant took forcible possession of 0.50 cents in the suit property. Therefore, he filed the suit for a declaration of his title to the suit property and also for recovery of possession from the respondent/defendant.
5. During the pendency of the suit, the first defendant died and his Legal heirs were impleaded as defendants 2 to 6.
6. The first and second defendant filed their respective written statements and the defendants 3, 5 and 6 adopted the written statement filed by the 2nd defendant. in the written statement, the first defendant had contended that the suit property was already partitioned between the plaintiff and the first defendant through a registered partition deed dated 06.05.1983 (Ex.B1) by which the northern portion of the property was allotted to the share of the plaintiff and the southern portion was allotted to the share of the first defendant. According to him, the plaintiff and the first defendant were enjoying their respective shares ever since the date of partition deed and therefore, the suit filed by the plaintiff is liable to be dismissed.
7. The 2nd defendant in her written statement had contended that the defendants have been in possession and enjoyment of the southern portion of the suit property and therefore, they have prescribed title to the suit property by adverse possession and prescription. It is further contended by her that the settlement deed was not acted upon and therefore, the suit filed by the plaintiff is liable to be dismissed.
8. In the trial court, the plaintiff examined himself and one another witness and marked Ex.A1 to Ex.A11. The 2nd defendant examined herself and marked Ex.B1. After full contest, the Additional District Munsif, Vellore decreed the suit in favour of the plaintiff vide his decree and judgment dated 24.03.2008. Aggrieved over the same, the defendants filed an appeal in A.S. No. 28 of 2008 before the Subordinate Judge, Vellore. The learned Subordinate Judge, Vellore allowed the appeal and dismissed the suit filed by the plai
