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2021 Supreme(Mad) 1418
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. HEMALATHA, J.
Navamani & Others – Appellants
Versus
Shanmugam (deceased) & Others – Respondents
S.A. No. 1533 of 2008
Decided on : 09-08-2021
Advocate Appeared:
For the Appellants :S. Kaithamalai Kumaran, Advocate.
Headnote:
Indian Evidence Act - Section 101 - Suit for partition and separate possession – Shares - Preliminary decree - Relinquishment deed - Plaintiff, late and fourth defendant became entitled to 1/3 share in both items of suit properties - However, since fourth defendant relinquished his share in suit Item No. 1, plaintiff and defendants 1 to 3, who are legal heirs of late became entitled to 1/2 share each - Where a coparcener purported to make a gift of his share to one brother, Supreme Court held that though ostensibly a gift, it was a relinquishment of his share and enures for benefit of all coparceners gift was construed in such a manner as to render it valid – Held, Court settled law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcener if the family is to remain undivided - Settled position of law, conclusion is irresistible, namely, that even if the document is taken as one for consideration, executants of Ex. B-6 are only effacing themselves from the family and to that extent, the share of the remaining coparceners is increased - Relinquishment can only be in favour of family even if document is only for consideration - Finding of lower Appellate Court is, therefore, correct, and accordingly Second Appeal is dismissed - Settled legal position, fourth respondent cannot renounce his share in favour of first defendant/first appellant alone when other co-sharers existed. - Appeal is dismissed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 12.06.2008 on the file of the I Additional Sub Court, Erode, in A.S. No.102 of 2006 upholding the decree and judgment dated 27.04.2006 on the file of the Principal District Munsif Court, Erode in O.S. No.658 of 2004.)
1. The appellants herein are the defendants in O.S. No. 658 of 2004 on the file of the Principal District Munsif, Erode. The first respondent (since deceased)/plaintiff filed the above suit for partition and separate possession of his half share in suit Item No.1 and 1/3 share in suit Item No.2. A preliminary decree for partition and separate possession was passed by the learned Principal District Munsif, Erode, vide his decree and judgment dated 27.04.2006, dividing the suit Item No.1 into two equal shares and to allot one such share to the plaintiff and as far as the suit Item No.2 is concerned, the learned Principal District Munsif held that the plaintiff is entitled to 1/3 share in all the Survey Numbers mentioned in Item No.2 except Survey Number 800/5B of Peredu Village, Thayirpalayam, Bhavani Sub-Division, Erode.
2. Aggrieved over the same, the defendants 1 to 3 (appellants herein) filed an appeal in A.S. No.102/06 before the I Additional Subordinate Court, Erode. The said appeal was dismissed and the decree and judgment dated 27.04.2006 of the Principal District Munsif, Erode, was upheld. Now, the present second appeal is filed against the concurrent findings of both the courts below.
3. For the sake of convenience, the parties are referred to as per their rankings in the trial court and in appropriate places, their rankings in the present appeal would also be indicated.
4. The facts of the case relevant for this Second Appeal in brief:
The plaintiff, late Subramaniam (husband of the first defendant and father of the defendants 2 and 3) and the fourth defendant are the sons of one Perumal Gounder. The suit items 1 and 2 are the properties of the late Perumal Gounder. After the death of Perumal Gounder, the plaintiff, late Subramaniam and the fourth defendant became entitled to 1/3 share in both the items of the suit properties. However, since the fourth defendant relinquished his share in suit Item No. 1, the plaintiff and the defendants 1 to 3, who are the legal heirs of late Subramaniam became entitled to 1/2 share each. It is further averred in the plaint that though a gift deed was said to have been executed in favour of the 14th defendant, the Bhoodhan movement, the property was not actually handed over to the said movement and therefore, the said deed was not acted upon.
5. The defendants 1 to 6 and 14 alone contested the suit. The fourth defendant filed a written statement and an additional written statement and the same were adopted by the defendants 1 to 3 and 5 and 6. However, the defendants 4 to 6, during the course of trial, remained absent and were set exparte. The other defendants, except the defendants 1 to 3 and 14, also remained absent and were set exparte. In the written statement filed by the fourth defendant, the relationship between the parties was admitted. There is no dispute with regard to the ownership of the suit property. However, it is contended that the fourth defendant executed a release deed dated 27.04.1991 in favour of the first defendant in respect of his 1/3 share in suit Item No.1 of the suit property. The fourth defendant has also prayed the trial court to decide the amount to be paid by the plaintiff in favour of the first defendant as the plaintiff did not pay any amount to him. It is further contended by the fourth defendant in his written statement that he is in possession of the property in Survey No.800/5B, even though the same was gifted to the 14th defendant.
On the contrary, the 14th defendant, the Bhoodhan movement, in their written statement, have contended that Survey No.800/5B was gifted to them by one Subbraraya Gounder and Tmt. Karuppayee ammal through a
