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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.CHANDRASEKHARAN, J.
Deivasigamany - Appellant
Versus
Rajeswari – Respondent
S.A.No.165 of 2019 and C.M.P.No.3057 of 2019
Decided on : 11-01-2022
Hindu Succession Act, 1956 - Partition of suit property - Suit barred by Limitation - Seeking a relief of declaration that sale deed - Appellant as plaintiff filed a suit in O.S. seeking a relief of declaration that sale deed alleged to have been executed by deceased in favor of first defendant is null and void partition of suit property into two shares and allot half share to him and for costs - Appellant/plaintiff laid a suit stating that suit property is an ancestral property of appellant and respondent who is brother of appellant - Respondent is wife of 2nd respondent - persons, who exercised the option to renounce their customary laws and adopted the French Code Civil, are not governed by the provisions of Hindu Succession Act, 1956. But, it must be remembered that by its very nature, the saving clause applies only to persons, who are inhabitants at the time when the French Code Civil was extended. Persons, who are descendants of those inhabitants, are also entitled to the benefit. But, persons, who became inhabitants of Pondicherry after the application of the French Code Civil, are not entitled to claim that they are renouncants – Para 16.
Finding of the Court:
Claim of appellant that he was not at all aware of sale deed in favor of 1st respondent and construction made by respondents cannot be accepted - Though appellant claims that he had been in possession of suit property till filing of suit he has not produced any materials in support of his claim - On other hand it is admitted in plaint itself that respondents are occupying ground floor and two other floors were let out to other parties - Thus it is effectively disproved that claim of appellant that he was in possession of the suit property before filing of suit - Certified copy of sale deed executed in favor of 1st respondent Ex.A4 shows that copy was obtained by appellant on - However he has not immediately filed suit and he filed only in - Therefore his claim that he was not aware of sale deed until before filing of suit could not have been true - Appellant has not produced any material to show that three storeyed building in suit property was constructed in year and he contributed money towards construction work - On other hand respondents satisfactorily proved that respondent purchased suit property Ex.B7 with a hut and later constructed a three storeyed building in suit property.
Result: Second Appeal is dismissed.
JUDGMENT :
This Second Appeal is filed against the Judgment and decree of the learned Principal District Judge, Puducherry in A.S.No.15 of 2012, reversing the Judgment of the learned Additional Sub Judge, Puducherry in O.S.No.28 of 2006.
2. The appellant as plaintiff filed a suit in O.S.No.28 of 2006 seeking a relief of declaration that the sale deed, dated 15.12.1992 alleged to have been executed by the deceased Kichenane @ Krishnasamy in favour of the first defendant Rajeswari, is null and void; partition of the suit property into two shares and allot half share to him and for costs. The appellant/plaintiff laid a suit stating that the suit property is an ancestral property of the appellant and the 2nd respondent who is the brother of the appellant. The 1st respondent is the wife of the 2nd respondent. The house in the suit property was constructed out of earning of the appellant and his parents. The three storeyed building in the suit property was constructed in the year 1990. He was born in the suit property in 1969 and his parents died in the suit property in 1956 and 1996. The appellant and the 2nd respondent were living in the suit property for more than 36 years. The appellant marriage was celebrated in the suit property on 30.03.1998 and his two children viz., Krishnan and Srinath were born in the suit property in the year 1998 and 2002 respectively. Due to force and threat exercised by the 2nd respondent, the appellant's father Kichenane @ Krishnasamy executed a sale deed in respect of the suit property in favour of the 1st respondent on 15.12.1992. There is no consideration for this sale. The sale deed was obtained for deceiving other legal heirs of Kichenane @ Krishnasamy. The appellant's father Kichenane @ Krishnasamy has no right to execute the sale deed in respect of the suit property since it is an ancestral joint family property. The appellant was earning a sum of Rs.5,000/- per month at the time of construction of the house in the suit property and he contributed money for the construction work along with his father and mother. The ground floor portion is utilized by the respondents 1 and 2 with their children. The first and second floors were leased out to third parties for Rs.2,000/- per month. From the year 1995 to till date, the rents have been collected by the respondents 1 and 2. The appellant is entitled for half share in the suit property and lease amount. He demanded partition of the suit property and allotment of his share. In this regard, Panchayat was also held on 28.10.2005, wherein it was decided to allot half share each to the appellant and the 2nd respondent. However, the respondents are not willing to act in accordance with the decision taken in the Panchayat. Therefore, the suit has been filed for the aforesaid reliefs.
3. The respondents denied the plea that the suit property is an ancestral property. It is the claim of the respondents that the suit property is not properly valued. The appellant filed the suit, challenging the sale deed executed by Kichenane @ Krishnasamy who died on 23.11.1995, in favour of the 1st respondent on 15.11.1992. Therefore, the appellant should have filed a suit for partition within a period of three years either from 15.11.1992 or from 23.11.1995. However, the suit has been filed only in the year 2005. Therefore, the suit is barred by limitation. It is denied that the building in the suit property was constructed out of the earnings of the appellant and his parents. When the 1st respondent purchased the suit property on 15.12.1992, there was only a thatched hut in the suit property. Then the 1st respondent obtained an approval from the Pondicherry Planning Authority and put up a three storeyed building utilizing her own fund and with the help of her husband, the 2nd respondent. These aspects were suppressed by the appellant and false claims were made in respect of the suit property.
4. Since the 1st respondent is the absolute owner of the suit property, it is not c
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