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MADRAS HIGH COURT
C.SHANMUGAM – Appellant
Versus
CHINNAPAIYAN – Respondent
AS 271 2012
PARTITION - HINDU SUCCESSION ACT, 1956 - SECTION 8 - ANCESTRAL PROPERTY - SONS' RIGHTS - Whether the claim of the plaintiffs are barred under Section 8 of the Hindu Succession Act? - Whether the plaintiffs acquired interest and rights in the suit property at the moment of their birth? - Whether the appeal can be allowed?
Fact of the Case:
The plaintiffs filed a suit for partition in the suit property and for permanent injunction restraining the defendants from alienating the suit property. The plaintiffs are brothers and the 1st defendant is the father of the plaintiffs and their mother is one Kamala. The 2nd defendant is the son of the 1st defendant born through one Pappa, a concubine of the first defendant herein. The suit properties are the joint family properties of the 1st defendant and his father Chinnusamy and his elder brother Kandhasamy. They divided the properties under a registered partition deed dated 30.04.1979. In that partition deed the properties described in the A schedule were allotted to Chinnusamy and his wife Arayee to be enjoyed by them for life without any right of alienation, and after the life time of Chinnusamy and his wife Arayee the properties described in the A schedule were directed to be divided into two equal shares and the 1st defendant and his elder brother Kandasamy has to succeed the property. After the demise of Chinnusamy and his wife Arayee, the A schedule property mentioned in the partition deed was divided into two equal shares. The 1st defendants and the plaintiffs 1 to 3 executed a sale deed in favour of the elder brother Kandasamy in respect of his half share. The other half share was allotted to the 1st defendant and the plaintiffs and that share was conveyed to the 1st plaintiff by the 2nd and 3rd plaintiffs and the 1st defendant. The 1st plaintiff took possession of the said property and he is in exclusive possession and enjoyment of the said property. Therefore, there is no dispute between the members of the family in respect of A and B schedule properties mentioned in the partition deed.The properties described in C schedule of the partition deed was allotted to the 1st defendant namely Chinnapaiyan which the plaintiffs and the 1st defendant are in joint possession. They are cultivating the above property according to their convenience without division by metes and bounds. While so, the 1st defendant was gained over by his concubine Pappa and the 1st defendant was attempting to alienate the properties mentioned in the suit to deprive the plaintiffs' lawful share in the said properties. Hence, the plaintiffs were constrained to file the above suit for partition.
Finding of the Court:
The suit is maintainable and the plaintiffs are entitled for 1/3 share in the suit properties and the judgement and decree passed by the trial Court in O.S.No.190 of 2010 is set aside.
Issues: 1.Whether the claim of the plaintiffs are barred under Section 8 of the Hindu Succession Act?2.Whether the plaintiffs acquired interest and rights in the suit property at the moment of their birth?3.Whether the appeal can be allowed?
Ratio Decidendi: The properties acquired by the 1st defendant in the partition deed dated 30.04.1979, although are separate properties qua other relations, it is a coparcenary property in so far as his sons and grandsons are concerned. In the instant case, the plaintiffs have clearly established that the properties are ancestral properties which have been divided between the 1st defendant and his father chinnusamy and his elder brother kandasamy as per the date of partition dated 30.04.1979.
Final Decision: Accordingly, the appeal suit stands allowed. No costs. Consequently connected Miscellaneous Petition is closed.
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 18.12.2023 Pronounced on 21.12.2023 CORAM THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI Appeal Suit.No.271 of 2012 and M.P. No. 1 of 2012
1.C.Shanmugam
2.C.Alagesan
3.C.Venkatesan ....Appellants/plaintiffs Vs.
1.Chinnapaiyan
2.Asaithambi ...Respondents/Defendants Prayer: First Appeal has been filed under order 41 Rule 1 r/w section 96 of CPC, against the Judgement and Decree dated 07.09.2011 made in O.S.No.190 of 2010 on the file of the Additional District and Sessions Judge (FTC No.2) Salem.
For Appellants : Mr.P.Jagadeesan For R1 & R2 : No appearance
JU D G M E NT
This appeal is preferred against a judgment and decree dated
07.09.2011 in O.S.No.190 of 2010 passed by the learned Additional District and Sessions Judge (FTC No.2) Salem.
2.The plaintiffs are the appellants. The plaintiffs filed the above suit in O.S.No.190 of 2010 for partition in the suit property and for permanent injunction restraining the defendants from alienating the suit property.
3.The case of the plaintiffs is that, the plaintiffs are brothers and the
1st defendant is the father of the plaintiffs and their mother is one Kamala. The 2nd defendant is the son of the 1st defendant born through one Pappa, a concubine of the first defendant herein. The 1st defendant lived with his concubine along with the 2nd defendant. The suit properties are the joint family properties of the 1st defendant and his father Chinnusamy and his elder brother Kandhasamy. They divided the properties under a registered partition deed dated 30.04.1979. In that partition deed the properties described in the A schedule were allotted to Chinnusamy and his wife Arayee to be enjoyed by them for life without any right of alienation, and after the life time of Chinnusamy and his wife Arayee the properties described in the A schedule were directed to be divided into two equal shares and the 1st defendant and his elder brother Kandasamy has to succeed the property. After the demise of Chinnusamy and his wife Arayee, the A schedule property mentioned in the partition deed was divided into two equal shares. The 1st defendants and the plaintiffs 1 to 3 executed a sale deed in favour of the elder brother Kandasamy in respect of his half share. The other half share was allotted to the 1st defendant and the plaintiffs and that share was conveyed to the 1st plaintiff by the 2nd and 3rd plaintiffs and the 1st defendant. The 1st plaintiff took possession of the said property and he is in exclusive possession and enjoyment of the said property. Therefore, there is no dispute between the members of the family in respect of A and B schedule properties mentioned in the partition deed.
4.The properties described in C schedule of the partition deed was allotted to the 1st defendant namely Chinnapaiyan which the plaintiffs and the 1st defendant are in joint possession. They are cultivating the above property according to their convenience without division by metes and bounds. While so, the 1st defendant was gained over by his concubine Pappa and the 1st defendant was attempting to alienate the properties mentioned in the suit to deprive the plaintiffs' lawful share in the said properties. Hence, the plaintiffs were constrained to file the above suit for partition. The trial Court upon considering the averments made in the plaint and the evidence on record dismissed the above suit placing reliance on the judgment reported in 2010(4) TNLJ 133 (CIVIL) and held that the sons of a divided son does not get rights from his father by birth, who are excluded by virtue of Section 8 of Hindu Succession Act and they cannot become coparcenors in the properties in question.
5.Aggrieved by this, the present appeal suit is filed by the appellants/plaintiffs
6.The learned counsel appearing for the appellants would contend that the property which the 1st defendant got by virtue of the partition deed amongst his father and brother although separate property qua other relations,
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