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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.SESHASAYEE, J.
R.Muthulakshmi - Appellant
Vs
Valliammal - Respondents
S.A.Nos.1236 & 1237 of 2009 and MP.Nos.1 & 1 of 2011
Decided On : 16-07-2021
Hindu Succession Amendment Act, 2005 - Evidence Act - Sections 67, 33 and 32 - Actual physical possession and enjoyment of suit properties along with her other siblings. - Suit notice - Seeking partition of the suit properties - Whether in law, the appellate Court is right in accepting the oral family arrangement and holding that the one co-parcener's interest could be relinquished without a registered document transferring such a right in the absence of any occasion for effecting a family arrangement and circumstances for acting upon it, as held in the judgment - Whether in law, lower appellate Court right in upholding that the first defendant prescribed title by adverse possession, thus denying share of the plaintiff in respect of suit properties in the absence of any specific plea of ouster and proof of the same - Whether in law, lower appellate Court failed to take note of fact that on failure to prove the case of adverse possession or ouster especially in the absence of any specific plea in this regard, the plaintiff would be entitled to a share in the suit property - Whether in law, the lower appellate Court is right in holding that Section 6 of the Hindu Succession Amendment Act, 2005 cannot be invoked by branch represented by the predeceased daughter - Whether in law, the Court below is right in holding that the plaintiff has no share in suit item No.2 on ground that settlement deed is valid in law - Whether in law, the lower appellate Court erred in holding that the Will under Ext.B38 is genuine and valid in absence of any proof about execution of the same as contemplated under Section 67 of Evidence Act, besides being fraudulent - Decade died and he died intestate, leaving him surviving his widow Valliammal, his only son first defendant, and heirs of his predeceased daughter - Plaintiff and defendants 3 to 7. Nachammal’s husband (father of the plaintiff) was the second defendant - On the demise estate devolved equally on his widow, his son and the branch of Nachammal represented by the plaintiff and defendants - plaintiff continued her joint possession with the first defendant - Plaintiff is in actual physical possession and enjoyment of the suit properties along with her other siblings - She has been regularly visiting the suit properties and has been helping her siblings in cultivation of the properties – Held, assuming that there was a sale in favour of Balakrishnan, with limitation overhanging issue, this plot that is said to have been sold to him must be secured to him during final decree proceedings, and hence it must be allotted to the share of contesting defendants - This can be done before final decree is passed by the very Court that passes it - Subject to proof of sale plaintiff’s right to carve out her share in item 1 from and out of plot said to have been sold to Balakrishnan should necessarily stand forfeited This would preserve everyone’s right - After all this litigation has commenced its journey some 36 years ago, and at this belated hour it may not befit this Court to plea helplessness when there is a duty on it to ensure that right it has declared is not lost to the plaintiff on the solitary ground that a purchaser of a co-sharer is not impleaded - Appeals are partially allowed.
JUDGMENT :
These second appeals are preferred by the plaintiff. She has laid a suit for partition of three items of properties. The suit was partially decreed by the trial court, challenging which decree the first defendant’s branch (defendants 8 to 12) preferred a first appeal in A.S.156 of 2003, in which the plaintiff had preferred her cross objection. The first appellate court allowed the appeal and dismissed the cross objection, which implied that the suit was dismissed in its entirety. Aggrieved by the said decrees of the first appellate court, the plaintiff has approached this court with these appeals. Parties would be referred to by their rank in the trial court.
The Pleadings:
2.1 The Plaintiff’s case:
There are three items of suit properties and they were the self-acquired properties of a certain Chennimalai Gounder. He was married to Valliammal, and the couple had a son Appasamy (the first defendant) and a daughter Nachammal. Nachammal died in 1963. A decade later, on 26.06.1973, Chennimalai Gounder died and he died intestate, leaving him surviving his widow Valliammal, his only son Appasamy Gounder, the first defendant, and heirs of his predeceased daughter, the plaintiff and defendants 3 to 7. Nachammal’s husband (father of the plaintiff) was the second defendant.
Item 1 of the suit property was purchased by Chennimalai Gounder under sale deeds dated 17.04.1920, 11.08.1922, (marked Exts.A-1 and A-2). Items 2 and 3 were obtained by him under a partition deed dated 01.10.1942, marked A3.
The 13th defendant is a purchaser of 3.50 acres in item 2 from the first defendant and his sons Vide a sale deed dated 12-12-1985.
On the demise of Chennimalai gounder, the estate devolved equally on his widow, his son and the branch of Nachammal represented by the plaintiff and defendants 3 to 7.
After the demise of Chennimalaigounder, the plaintiff has been in joint possession and enjoyment of the suit properties along with Valliammal and the first defendant.
While so, on 11-01-1986 Valliammal died and thereafter plaintiff continued her joint possession with the first defendant. Thus, the plaintiff is in actual physical possession and enjoyment of the suit properties along with her other siblings. She has been regularly visiting the suit properties and has been helping her siblings in cultivation of the properties.
Be that as it may, differences arose between the plaintiff and the first defendant, when the latter began taking steps to encumber the suit properties. Therefore, the plaintiff issued a suit notice dated 26.08.1985 [Ext.A8] on the defendants 1 to 4, 6 & 7 seeking partition of the suit properties. The first defendant issued a reply notice dated 03.09.1985 [Ext.A9], raising untenable contentions. Hence, the suit is laid.
While so, on 11.01.1986 Valliammal died. the plaintiff and the defendants 2 to 7 were entitled to 1/14 share in each of the suit properties, whereas the first defendant was entitled to 7/14 share. (But in the prayer coloumn of the suit, she claimed partition of 19/252 shares)
2.2 Case of the Defendants: The first defendant was the sole contesting defendant. He died and his sons came to be impleaded as defendants 8 to 12. On their impleadment they too filed their written statement which was essentially along the lines of the written statement of their father. Their case in defence of the plaintiff’s claim is as below:
The suit properties were not the self-acquisition of Chennimalai Gounder, but were the ancestral properties in his hands, and were so treated by Chennimalai Gounder and the first defendant. At no point of time, Chennimalai Gounder was in exclusive possession of the properties.
Item 2 has a total extent of 7.29 acres, and it is part of a larger extent in Sy.No:550. On 23.04.1966, Chennimalai Gounder settled his half share equalling 3.64½ acres to the first defendant under Ext.B1 settlement deed. Accordingly, this property is the exclusive property of the first defendant.
Item No.1 property had an extent of
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