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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A. SELVAM, P. KALAIYARASAN, JJ
Santaprakash N. M. R. S. v. N. M. R. Sivaa and Others
Appeal Suit | O.S. No. 74 of 2004
Key Points: - The properties are determined to be separate properties and not ancestral, as established by the will and prior partitions among family members. (!) (!) (!) - The trial court dismissed the partition suit; the appellate court upheld dismissal, confirming the properties do not have the character of ancestral or joint family properties. (!) (!) - A settlement deed dated 12.04.1944 granted life estate to the wife with vested interest to the adopted son; later partitions occurred among Radhakrishnier and his sons. (!) (!) - The Will dated 03.05.1962 bequeathed movable properties to his sons; for immovable properties, life interests were given with rights vesting in legal heirs. (!) (!) - The properties in A-schedule and B-schedule are identified as those allotted under the Will and partition, treated as separate properties. (!) (!) - Plaintiff admits there was partition among the first defendant, his brother, and father on two occasions, affecting the nature of the properties. (!) (!) - The court held that since the properties devolved through will and partition during the lifetime of the father, they should be treated as separate properties, and Hindu Succession Act rights to equal inheritance during the father’s lifetime do not apply. (!) - The appeal was dismissed, with no costs. (!)
| Table of Content |
|---|
| 1. dismissed partition appeal due to lack of ancestral property status. (Para 1 , 2) |
| 2. arguments against the claim of joint family properties. (Para 3 , 4 , 5 , 6 , 7) |
| 3. court observations on the legal nature of the properties. (Para 12 , 13 , 14 , 19) |
| 4. key legal reasoning regarding ancestral property principles. (Para 18) |
| 5. conclusion of appeal dismissal. (Para 20) |
1. This appeal suit is directed against the judgment and decree dismissing the suit for partition passed by the Additional District Judge (Fast Track Court No.1), Madurai dated 30.01.2009 in O.S. No. 74 of 2004.
2. The plaint averments are as follows:
2.1. Originally all the properties belonged to N. M. Soobbier. He was married to Muthulakshmiammal and they had no issues and they adopted a son viz., Radhakrishnier. The said N. M. Soobbier had immovable properties in and around Madurai city. During his life time, N. M. Soobbier, executed a registered settlement deed on 12.04.1944 creating life interests in favour of his wife N.M.S. Muthulakshmi Ammal in respect of some of his properties and vesting absolute right to the adopted son N.M.S. Radhakrishnier after her life time. The adopted son N.M.S. Radhakrishnier married Kamalakshi and they had two sons viz., N.M.R. Jambunathan and N.M.R. Sivaa and four daughters viz., C. K. Saradhabai, M.S. Dhanivathibai, M.S. Dinamanibai and A. B. Gandhimathibai. N.M.R. Sivaa married Lalitha and they got three sons, the plaintiff and defendants 2 and 3.
2.2. N. M. Soobbier died in the year 1950 leaving his wife and adopted son as his legal heirs. During the life time of N.M.S. Radhakrishnier, he executed four settlement deeds dated 13.04.1953 settling some of his properties only giving life interest in favour of his four daughters. He also executed a settlement deed in favour of his second daughter Dhaniyavathibai in respect of house property, got from his mother. N.M.S. Radhakrishnier and his two sons partitioned their joint family properties under an unregistered partition deed dated 22.09.1955, which was given effect to on 13.04.1956.
2.3. Later on 22.04.1956, they again partitioned the house properties and agricultural lands of N.M.S. Muthulakshmiammal, which she got from settlement deed dated 12.04.1944. Thus, father and two sons divided all the family properties and joint family properties among themselves. N.M.S Radhakrishnier predeceased his mother N.M.S. Muthulakshmi Ammal and he died on 05.07.1970. N.M.S. Muthulakshmi Ammal died on 30.01.1980.
2.4. N.M.S.Radhakrishnier executed a registered Will on 03.05.1962 bequeathing his share of the movable properties to his sons N.M.R. Jambunathan and N.M.R.Sivaa with absolute interest. Regarding immovable properties, he gave only life interest to his sons vesting the absolute right to the legal heirs. The properties given in the Will to N.M.R. Sivaa, the first defendant herein is given as A - schedule in the plaint and the ancestral joint family properties and the properties shown and allotted to first defendant in the partition deed dated 22.04.1956 is given as B - schedule in the plaint.
2.5. The first defendant effected a partial partition with his sons on 18.10.1971 regarding the business assets, when the plaintiff was minor. He again made another partial partition with his three sons regarding the joint family properties obtained under the partition deed dated 13.04.1956 to meet out the marriage expenses of the family properties. Those properties are not included in the schedule of properties.
2.6. Misunderstanding arose between the plaintiff and the first defendant regarding the management of the business and the family properties. Therefore, the plaintiff demanded partition of the joint family properties and ancestral properties from his father. But, the defendants evaded to comply the request of the plaintiff.
2.7. Plaintiff's mother, who is also the wife of the first defendant died on 30.01.2003. The defendants have created a Will as if executed by her, which is not
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