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IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
Selvamani and Ors. - Appellants
Versus
Ponnusamy and Ors. - Respondents
S.A. No. 230 of 2016
Decided On : 27-08-2019
Hindu Womens Rights to Property Act, 1937 - Sections 3(2) and (3) - Estate Duty Act, 1953 - Section 7(2) - Tamilnadu Court Fees Act - Section 37(1) - Properties had been divided into house plots - Claim for partition their fathers property - Case of plaintiff in brief is that first plaintiff is sister of first defendant and second defendant is wife of first defendant - Suit properties are inheritance of Rama father of first plaintiff and first defendant - Rama had another son by name who died without issues - Rama had died about years back - His widow namely mother of plaintiff and first defendant died about years back - Rama himself effected family arrangement which he had declared and allotted share to each of four family members with right and enjoyment for life and his wife – Held, Having not been challenged by plaintiff over long period of time and also plaintiff having not challenged sale transaction effected in favor of second defendant in manner known to law despite knowledge of same in such view matter as contended by defendants counsel plaintiffs having failed to establish their claim of share in suit properties as put forth in plaint and plaintiffs having failed to establish their alleged claim of possession and enjoyment of said property in all it is found that plaintiffs would not be entitled to claim any share in second item of suit properties also as projected by them - Furthermore considering materials available on record when it is found that first item of suit properties had been divided into house plots and major portion of house plots had already been sold in favor of third parties and same is in possession of third parties and when it is admitted by plaintiffs themselves that they are not in possession and enjoyment of suit properties for several years as rightly determined by first appellate court in such view of matter even assuming for sake arguments that plaintiffs are entitled to claim any partition it is found that plaintiffs should have properly valued subject matter and paid court fee on market value of suit properties as per Section Tamilnadu Court Fees Act - Plaintiffs having failed to adhere to above said procedure as by first appellate court suit laid by plaintiffs itself is found to be misconceived and liable to be rejected - On that score also plaintiff is found to be not entitled to claim any share in suit properties – Appeal dismissed
JUDGMENT :
T. Ravindran, J.
1. Challenge in this Second Appeal is made to the judgment and decree dated 15.04.2015 in A.S. No. 25 of 2014 on the file of First Additional Subordinate Court, Coimbatore, reversing the judgment and decree dated 28.01.2014 in O.S. No. 748 of 2004 on the file of III Additional District Munsif Court, Coimbatore.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.-
3. Suit for partition.
4. The case of the plaintiff, in brief, is that the first plaintiff is the sister of the first defendant and the second defendant is the wife of the first defendant. The suit properties are the inheritance of Rama Konar, the father of the first plaintiff and the first defendant. Rama Konar had another son by name Krishnasamy, who died without issues. Rama Konar had died about 57 years back. His widow, namely the mother of the plaintiff and the first defendant died about 40 years back. Rama Konar himself effected a family arrangement under which he had declared and allotted 1/4 share to each of the four family members with a right and enjoyment for life and his wife. Under the arrangement right was vested and possession postponed. All along the parties have been in joint possession and the first defendant claiming exclusive right in the suit properties, purported to create bogus, sham and nominal document in the name of the second defendant and the first plaintiff is not a party to the same and her mother is also not a party to the document. Till the life time of Rama Konar, there is power of alienation. The first plaintiff is still in the joint possession. The plaintiff is entitled to 1/4 share as per the family arrangement. The mother had 1/4 share, in which also, the first plaintiff had derived 1/3 share. The defendants 3 and 4 are the third parties and had purchased the properties from the defendants 1 and 2 and endeavouring to put up the construction in the properties and the sale in favour of the defendants 3 and 4 is void. Item 2 of the plaint schedule properties is the property of Ramakonar, but purchased benami and nominally in the name of his wife Nanjammal. Nanjammal had no source of income. The said property was accepted, acknowledged and treated and enjoyed as Rama Konar's property by all including Nanjammal. Hence the alleged sale to the defendants is without any consideration and the first plaintiff died leaving behind the plaintiffs 2 to 7 as her legal heirs and hence the suit for partition.
5. The defendants 1 and 2 resisted the plaintiff's suit admitting that the first plaintiff, the first defendant and one Krishnasamy are the children of Rama Konar and also admitted that Rama Konar and his wife died long back, however, denied the case of the first plaintiff that the suit properties are the inheritance of Rama Konar and according to them, the said case of the first plaintiff is misleading. It is true that Krishnasamy died issueless. The defendants disputed the plea of family arrangement said to have been effected by Rama Konar allotting 1/4 share to the four family members as alleged by the plaintiff and contended that the first plaintiff has not whispered as to who are the four family members and when was the family arrangement effected, what was the right granted to each of the four family members and the plaintiff is not clear whether Rama Konar retained any right and according to the defendants, the first plaintiff is unaware of the nature of the suit properties and also the possession and enjoyment of the same and also disputed the case of the plaintiff that under the family arrangement, right was vested and possession postponed. The plaintiff has never been in the possession and enjoyment of the suit properties. The second defendant, on 30.04.1959, for a valid consideration, had purchased the plaint schedule property from the first defendant and Krishnasamy and since then, it it only the second defendant who has been in the possession and enjoyment of
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