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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. Asha, J.
P.Kalyanasundaram and - Appellants
Versus
P.Saraswathy (died) and ors. – Respondents
A.S.No.734 of 2009
Decided On : 22-12-2021
Tamil Nadu Hindu Succession Act, 1989 - Indian Succession Act, 1956 - Section 63(c) - Indian Evidence Act, 1872 - Section 68, (c) - Property – Partition – Equal share - Plaintiffs had filed referred suit for reliefs for partition of suit “A” to “D” schedule properties by metes and bounds in 16 equal shares and for allotment and separate possession of five equal shares to each of plaintiffs 2 and 3 and for allotment and separate possession of one share to first plaintiff - Declaring that alleged partition deed purportedly entered into between late one and first defendant is void, illegal, ultra vires and not binding on the plaintiffs - For partition of suit “E” schedule properties by metes and bounds into four equal shares and for allotment and possession of one such share each to plaintiffs - Directing the defendant to render a true and proper accounts in respect of income earned from “A” to “D” schedule properties for three years prior to filing of the suit and to pay plaintiffs their one- eighth share each in respect of those incomes and also for period from the date of suit till date of actual division - Granting permanent injunction restraining defendants their men and agents from in any way alienating or encumbering the suit properties- Whether suit schedule properties are joint family properties as nucleus for the purchase of properties described as B to E emanates from income derived from ancestral property described as the 'A' schedule properties. Para 20.
Finding of the Court: Apart from suspicious circumstances another factor that is to be taken note of is that plaintiff has not produced the original Will for the scrutiny of the Court - What has been marked is only the certified copy and even that copy appears to have not been marked which is evident from scrutinizing the oral evidence of D.W2 both in his chief examination as well as his cross examination - In the proof affidavit in lieu of chief examination of D.W.2 entire sentence regarding marking of document has been scored out and in deposition in Chief examination, it is only the signature of attesting witness which has been marked - A perusal of the same would show that it is the Will that has been marked as Ex.B.18 and not only the signature. it has to be considered as to what relief the plaintiffs are entitled to. 'A' schedule property admittedly are joint family property and in light of the Vinita Sharma's case the plaintiffs 2 and 3 are entitled to an equal share in A schedule property - Since this Court has arrived at a conclusion that the properties described in 'B' to 'E' schedule properties are not purchased out of joint family funds the plaintiffs would be entitled to a 1/3rd share each along with the 1st defendant in the 'B' and 'E' schedule properties and the deceased share in 'C' schedule - As regards the 'F' schedule property the plaintiffs have not proved as when the 3 cents of land described as the 'F' schedule has been encroached upon - Allotment of the 'F' schedule which a part of 'E' schedule can be decided at the time of trial decree.
Result: First Appeal is partly allowed.
JUDGMENT :
The defendants 1 to 4 in a suit for partition and declaration are the appellants before this Court. The parties for the ease of understanding are referred to in the same ranking as before the trial Court, namely, the learned Additional District Judge cum the Judge, Fast Track Court No. II, Coimbatore, before whom, the plaintiffs had filed a suit in O.S. No.179 of 2005.
PLAINTIFFS' CASE :-
2. For a better appreciation of the case on hand, it is necessary to set out the genealogy of the family.
Father
name not mentioned
Muthusamy (died) Kaliappan (died) Rangasamy (died)
K.M.Palanisamy
Saraswathy (1st Plaintiff)
Kalyanasundaram (1st Defendant) Poongothai (2nd Plaintiff) Subbulakshmi (3rd Plaintiff)
Ponnammal (2nd defendant)
Gopinath (3rd defendant) Vimalnath (4th defendant)
5th Defendant: Purchaser
3. The plaintiffs had filed the above referred suit for the following reliefs:-
a (i) declaring that the alleged partition deed dated 31.08.2020 (Document No.357 of 2000) purportedly entered into between late Mr.Palaniswamy Gounder and the first defendant is void, illegal, ultra vires and not binding on the plaintiffs. (Amended as per order in I.A.No.308 of 2007 dated 16.07.2007.)
b) for partition of the suit “E” schedule properties by metes and bounds into four equal shares and for the allotment and possession of one such share each to the plaintiffs.
c) directing the defendant to render a true and proper accounts in respect of the income earned from “A” to “D” schedule properties for three years prior to the filing of the suit and to pay the plaintiffs their one- eighth share each in respect of those incomes and also for the period from the date of suit till date of actual division;
d) granting permanent injunction restraining the defendants their men and agents from in any way alienating or encumbering the suit properties
e) directing the 1st respondent to vacate the “F” schedule property and hand over vacant possession of the same to the 2nd plaintiff on or before a date to be fixed by this Hon'ble Court;”
4. The case of the plaintiffs is that the suit properties were the ancestral properties of the paternal grandfather of the plaintiffs 2 and 3, the 1st defendant, one Muthusamy. Muthusamy had two brothers, namely, Rangasamy and Kaliappan. On 27.05.1964, a partition of the ancestral properties took place between Muthusamy and his two brothers. Thereafter, there was an exchange deed also executed among the brothers and ultimately, the 'A' schedule property described in the suit fell to the share of Muthusamy along with his son, Palanisamy, who is the father of the plaintiffs 2 and 3 and the 1st defendant and the husband of the 1st plaintiff. After the demise of Muthusamy, the 'A' schedule property came to be inherited by Palanisamy. The 'A' schedule property yielded considerable income, from out of which the 'B' schedule properties were acquired in the name of Palanisamy. The 'C' schedule properties were purchased in the name of the said Palanisamy and the 1st defendant before the 1st defendant's marriage, from out of the joint family income. Likewise, the 'D' schedule properties were purchased from out of the joint family income in the name of the 1st defendant and his wife/the 2nd defendant. The 'E' schedule properties were also purchased in the name of the 2nd plaintiff from out of the funds provided by her husband, Duraisamy. The suit schedule set out a property described in hte 'F' schedule, which the plaintiffs contended is a partion of the 'E' schedule property which was encroached into by the 1st defendant.
5. It is the case of the plaintiffs that with reference to the 'E' schedule property, Pal
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