IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.3.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1610 of 2008 Cross Obj.No.9 of 2011 and M.P.Nos.1 AND 2 of 2009 S.Rathinasababathy ... Appellant/Plaintiff in S.A.No.1610 of 2008 .. Respondent in Cross Objection No.9 of 2011 vs. 1.S.Gajaganapathy ...1st respondent/ 26th Defendant in S.A.No.1610 of 2008 Cross-objector in Cross-objection No.9 of 2011 2.Hemalatha 3.Gajalakshmi 4.Mangayarkarasi 5.Ranganayagi 6.Mala 7.Singaravel 8.R.Manian 9.Vijakumar 10.Vijaya 11.Usha Ammal 12.Kuttyammal 13.Rajeswari 14.Lalitha 15.Kuttyappan 16.Kanniappan 17.Karuppaiah 18.Thiripurasundari 19.Jyothiamani 20.Shankar 21.Swaminathan https://hcservices.ecourts.gov.in/hcservices/ 22.Thilagavathy 23.Nagavalli .... Respondents 2 to 23 in S.A.No.1610 of 2008/ Respondents 6 to 25, 27 and 28 The second appeal and the cross-objection are filed against the judgement and decree dated 24.1.2008 passed by the VI Additional Judge, City Civil Court, Chennai, in A.S.No.251 of 2006 reversing the judgement and decree dated 23.10.2002 passed by the XIII Assistant Judge, City Civil Court, Chennai, in O.S.No.12148 of 1989, by the respective parties. For Appellant : Mr.G.Rajagopal,Sr.counsel for Mr.K.Simeon and A.jayachandran for appellant in S.A. and for the respondent in the Cross-objection For Respondents : Mr.A.Venkatesan for R1 in S.A. and for the Cross-objector in Cross-objection Mr.A.R.Nixon for RR2 to 15, 17, 19, 21 to 23 Mr.K.P.Chandrasekaran for RR9 and 16 in the second appeal No appearance for R18 and R20 JUDGMENT The second appeal and the cross-objection are focussed by the plaintiff and D26, respectively, inveighing the judgement and decree dated 24.1.2008 passed by the VI Additional Judge, City Civil Court, Chennai, in A.S.No.251 of 2006 reversing the judgement and decree dated 23.10.2002 passed by the XIII Assistant Judge, City Civil Court, Chennai, in O.S.No.12148 of 1989, which was filed for partition. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Narratively but precisely, broadly but briefly the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The appellant herein, as plaintiff filed the suit seeking the following reliefs: "To pass a judgement and decree against the defendants: (1) directing division of the suit property into twelve equal shares by metes and bounds; (2) for allotment of separate possession of 11 shares to the plaintiff; (3) directing 1/12th share of the 1st defendant over the suit property to the plaintiff for Rs.1273/- and 1/3 under section 9 of the Partition Act; (4) for appointment of a Commissioner to effect partition of the suit property by metes and bounds and for sale of the 1/12th share of the 1st defendant to the plaintiff; (5) for costs of the suit." (extracted as such) (b) Written statements were filed separately by D1 , D2 and D3, D4 to D7, D23, D24 and D26 resisting the suit. Whereupon, the trial Court framed the issues. (c) The plaintiff examined himself as P.W.1 and Exs.A1 to A20 were marked. On the defendants side, D26 and D22 examined themselves as D.W.1 and D.W.2 along with D.W.3 and marked Exs.B1 to B11. (d) Ultimately, the trial Court decreed the suit to the effect that the plaintiff was entitled to 11/12th share and the deceased D1-Arumugham was entitled to 1/12th share, in the suit properties. (e) Being aggrieved by and dissatisfied with the same, D26- the biological son of D1, filed the appeal. Whereupon, the first appellate Court reversed the judgement and decree of the trial Court and allotted half share to the plaintiff and half share to the deceased D1 and correspondingly, the legal heirs of D1 were allowed to get the share of the deceased D1. 4. Challenging and impugning the judgement and decree of the first appellate Court, the plaintiff filed the second appeal on various grounds, suggesting the following substantial questions of law. "(1) Has not the first appellate Court erred in partly reversing the decree of the trial Court by holding that Shanmuga Sundaram is absolute owner of the property, when the respondents/defendants have not https://hcservices.ecourts.gov.in/hcservices/ filed any documentary evidence to prove the same? (2) Has not the first appellate Court erred in granting a relief merely basing on Ex.B1 the Certified copy of Charge decree said to have executed by the deceased Shanmuga Sundaram in which other co-owners are not parties? (3) Has not the first appellate Court erred in reversing decree passed by the trial Court by over looking Ex.A5 and A6 the Release Deed executed by other co-owners in favour of the appellant by relinquishing their share? (4) Has not the first appellate Court erred in reversing the decree passed by the trial Court over looking the principle that possession by one co-owner shall deemed joint possession by the other co-owners?" (extracted as such) 5. Whereas, D26 filed the cross-appeal challenging the lower Courts' finding, which was to the effect he was not the adopted son of Rathinasabapathy. However, D26 would contend that he is the adopted son of the plaintiff-Rathinasabapathy. 6. At this juncture, I would like to point out that earlier, the second appeal papers were got misplaced and they could not be traced. Whereupon my learned predecessor ordered for reconstruction and it is before me along with the original lower Court's records which are intact. 7. On both sides, they would state that certain substantial questions of law were framed earlier, but those are not available and both sides in unison would state that this Court has got ample powers to frame fresh substantial questions of law and decide the matter. 8. Both sides submitted their arguments. 9. The gist and kernal, the pith and marrow of the arguments as put forth on the side of the plaintiff, placing reliance on the grounds of second appeal, would run thus: (i) The first appellate Court failed to take into consideration the fact that the suit properties originally belonged to one Veerammal, who died in the year 1916, issueless. Consequently, her only brother Singaravelu inherited the properties. https://hcservices.ecourts.gov.in/hcservices/ (ii) Singaravelu had three sons, namely, Angamuthy, Shanmugasundaram and Mayandi. (iii) Angamuthy died in the year 1942 and he had one son by name Ramachandran-D2 herein. Mayandi-the son of Singaravelu died in the year 1970 leaving behind his son D3-Kuppusamy. (iv) The plaintiff-Rathinasabapathy, the deceased D1- Arumugham and D4-Sivagamasundariammal are the sons and daughter of the said Shanmugasundaram. One other son of Shanmugasundaram, namely, Singaravel died in the year 1972, leaving behind D5, D6 and D7. (v) The aforesaid genealogy is an undisputed one. (vi) The plaintiff-Rathinasabapathy purchased the shares of Ramachandran, Singaravel and others, except the share of D1- Arumugham and accordingly, the trial Court correctly decided the case, allotting 11/12th share in favour of the plaintiff and 1/12th share in favour of D1, which the D1's legal heirs are expected to take. (vii) The first appellate Court in the judgement, without referring to any of the salient features, simply held as though the properties should be divided into two halves and accordingly, allotted one half to the plaintiff and the other half share to D1. (viii) The suit properties cannot be described as Hindu joint family properties, because, from a female, namely, Veerammal, her brother Singaraveli-the propositus of the parties, inherited the suit properties, as per the old Hindu Law and retained them; whereby, Singaravelu was deemed to be the absolute owner of those properties, which were as per Hindu Law teated as his self-acquired properties. Consequently, on his death, his heirs inherited those properties. took them. In such a case, the question of treating the suit properties as joint family properties does not arise. But the first appellate Court failed to apply the correct proposition of law in deciding the case. (ix) D26 cannot be treated as the adopted son of Rathinasabapathy for the reason that no such adoption was proved. The ceremony relating to adoption was also not found set out in the written statement and that was not proved. Hence, the judgement of the first appellate Court allotting half share to the plaintiff-Rathinasabapathy and half share to D1- Arumugham is erroneous and it is liable to be set aside and the judgement of the trial Court has to be restored. https://hcservices.ecourts.gov.in/hcservices/ 10. Piloting the arguments on the side of R26/D26 in the main second appeal and the cross-objector in the cross-appeal, the learned counsel would advance his arguments, the wrap and woof of them would run thus: (a) The advocate, who was appearing for the plaintiff in the first appellate Court clearly and categorically argued, by describing the suit properties as the Hindu joint family properties and in such a case, absolutely there is no rhyme or reason on the part of the plaintiff to contend before this Court as though the plaintiff did not admit the suit properties as the Hindu joint family properties. (b) Even though Veerammal was the original owner of the suit properties, yet Singaravelu, on inheriting the same from Veerammal, along with his sons and grandsons, treated the suit properties as the joint family properties. (c) The said Angamuthu as well as Mayandi left the family long ago. Only Shanmugasundaram, as revealed by Ex.B1-furnished security to the High Court in a particular proceeding and thereby, he projected himself as the absolute owner of the suit properties. Consequently, Rathinasabapathy, Arumugham and Singaravel and their male heirs-being the descendants of Shanmugasundaram were entitled to the suit properties as coparceners. In such a case, the question of getting release deed by Rathinasabapathy in his favour, from the heirs of Angamuthy and Mayandi does not arise at all. (d) Once the properties are found to be the Hindu joint family properties, the question of heirs of Angamuthu or Mayandi or any other heirs or descendants of Shanmugasundaram, relinquishing or releasing their shares in those properties in favour of Rathinasabapathy alone could not be countenanced because such alleged relinquishment or release by others would enure to the benefit of all other coparceners in general. (e) The first appellate Court correctly allotted half share to Rathinasabapathy and half share to the deceased D1-Arumugham, warranting no interference in second appeal. (f) Both the Courts below failed to appreciate the evidence properly even though D26 is the adopted son of Rathinasabapaty. Once Rathinasabapathy is held to be the coparcener, then whatever share Rathinasabapathy would be getting should be further shared by him with his adopted son-D26. https://hcservices.ecourts.gov.in/hcservices/ (g) This Court, on the CD (Ex.B6) being displayed before it, in the presence of both sides, clearly noted that Rathinasabapathy himself, at the time of marriage of D26, unambiguously and unequivocally, in the presence of the gathering there, declared that D26 is his adopted son and the trial Court as well as the first appellate Court failed to take note of the same and they were wrong in holding as though Ex.B6- the CD did not contain such version and that only the other speakers referred D26 as the adopted son of Rathinasabapathy. Accordingly, the learned counsel for D26 would pray for dismissal of the main second appeal and for allowing the cross- appeal of D26 and for upholding the half share each allotted by the first appellate Court in favour of the plaintiff and D1, with the modification that D26 is entitled to half share in the half share of the plaintiff. 11. After hearing both sides, the following substantial questions of law do emerge for consideration. "(i) Whether the suit properties are to be treated as the Hindu joint family properties or the self-acquired properties of Singaravelu, and whether the first appellate Court properly appreciated the evidence and treated the suit properties as the Hindu joint family properties, despite the admitted factual position that Veerammal was the original owner of the suit properties; from whom her brother Singaravelu inherited the same? and that there is no evidence to establish that those properties were treated as Hindu joint family properties? (ii) Whether both the Courts below were justified in rejecting the plea of adoption as put forth by D26 in the wake of oral and documentary evidence, including the CD-Ex.B6? (iii) Whether there is any perversity or illegality in the judgements and decrees rendered by both the Courts below? 12. Substantial Question of law (i): I would like to fumigate my mind with the following decisions of the Honourable Apex Court: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. ............. 22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24) "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA. A bare perusal of the above precedents would exemplify and demonstrate that if there is any perversity or illegality or when there is mistake on the part of the Courts below in mis- reading of evidence or misapplication of law or not entertaining any evidence, the High Court has to necessarily interfere. 13. The ungainsayable genealogy as found exemplified and demonstrated from the records would run thus: (i) Veerammal's brother is Singaravelu, who had three sons, namely, Angamuthu, Shanmugasundaram and Mayandi. Ramachandran- D2 is the son of Angamuthu. The plaintiff-Rathinasabapathy, D1- https://hcservices.ecourts.gov.in/hcservices/ Arumugham, Singaravel, D4-Sivagamasundari are the children of Shanmugasundaram. Kuppusamy-D3 is the son of said Mayandi. (ii) Singaravelu, Angamuthu, Shanmugasundaram, Mayandi all died during the year 1928, 1942, 1956 and 1970 respectively. (iii) Pendente lite, Arumugham-D1 died, leaving behind his wife widow-D22 and his biological children-D23 to . D2- Ramachandran died leaving behind D8 to D12 as his legal heirs. D3-Kuppusamy died leaving behind his legal heirs D15 to D21. D4-Sivagasundari died leaving behind her legal heirs D13 and D14. 14. At the outset itself I would like to point out that in the plaint there is nothing to indicate or exemplify, demonstrate or display that the plaintiff described the suit properties as the joint family properties. However, the defendant No.1 and D26 would try to project the properties as the Hindu joint family properties. 15. On the side of the plaintiff the following decisions are found referred to: (i) CDJ 1937 Privy counsel 60-MUHAMMAD HUSAIN KHAN AND OTHERS V. BABU KISHVA NANDAN SAHAI, certain excerpts from it would run thus: "(3) But the matter is of considerable practical importance and their Lordships think that it should not be left in a state of uncertainty. The learned counsel for the appellants argues that the property inherited by a daughter's son from his maternal grand-father is ancestral property, and he relies, in support of his arguement, upon the expression "ancestral property" as used in the judgment of this Board in 29 IA 156, (4) in describing the property which had descended from the maternal grandfather to his two grandsons. It is to be observed that the grandsons referred to in that case were the sons of a daughter of the propositus, and constituted a coparcenary with right of survivorship. On the death of their mother they succeeded to the estate of their maternal grandfather, and continued to be joint in e state until one of the brothers died. Thereupon, the widow of the deceased brother claimed to recovder a moiety of the estate from the surviving brother. The question formulated by the Board for decision was whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship, https://hcservices.ecourts.gov.in/hcservices/ or in common without benefit of survivorship. This was the only point of law which was argued before their Lordships, and it does not appear that it was contrended that the estate was ancestral in the restricted sense in which the term is used in the Hindu law. Their Lordships decided that the esteate was governed by the rule of survivorship, and the claim of the widow was, therefore, negatived. The brothers took the estate of their maternal grandfather at the same time and by the same title, and there was apparently no reason why they should not hold that estate in the same manner as they held their other joint property. The rule of survivorship, which admittedly governed their other kproperty was held to apply also to the estate which had come to them from their maternal grandfather. In these circumstances it was unnecessary to express any opinion upon the abstract question of whether the property, which a daughter's son inherits from his maternal grandfather, is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him. This question was neither raised by the parties nor determined by the Board. It appears that the phrase "ancestral property", upon which reliance is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which devolves upon a person from his ancestor, and not in the restricted sense of the Hindu Law which imports the idea of the acquisition of interest on birth by a son jointly with his father. There are, on the other hand, observations in a later judgment of the Board in 35 IA 206(5) which are pertinent here. It was stated in that judgment that unless the lands came "by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu law". This case, however, related to the property which came from male collaterals and not from maternal grandfather; and it was governed "by the custom of the Punjab":, but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships. The rule of Hindu law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely his father, father's father and father's father's father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him https://hcservices.ecourts.gov.in/hcservices/ in coparcenary with his male issue, and the doctrine of survivorship applies to it. But the question raised by this appeal, is whether the son acquires by birth an interest jointly with his fatherh in the estate, which the latter inherits from his maternal grandfather. Now, Vijnanesvara, the author of Mitakshara, expressly limits such right by birth to an estate which is paternal or grand-paternal. It is true that Colebrooke's translation of the 27th sloka of the first section of the chapter of Mitakshara, which deals with inheritance is as follows: "It is a settled point that property in the paternal or ancestral estate is by birth:. But Colebrooke apparently used the word 'ancestral' to denote grand- paternal, and did not intend to mean that in the estate, which devolves upon a person from his male ancestor in the maternal line, his son acquires an interest by birth. The original test of the Mitakshara shows that the word used by "Vijnanesvara, which has been translated by Colebrooke as 'ancestral' is paitamaha which means belonging to pitamaha. Now, pitamaha ordinarily means father's father, and though it is sometimes used to include any paternal male ancestor of the father, it does not mean a maternal male ancestor. Indeed, there are other passages in Mitakshara which show that it is the property of the paternal grandfather in which the son acquires by birth an interest jointly with, and equal to that of his father. For instance, in the 5th sloka of the fifth section of the first chapter, it is laid down that in the property which was acquired by the paternal grandfather .................the ownership of father and Bon is notorious; and therefore partition does take place. For, or because the right is equal, or alike therefore partition is not restricted to be made by the father's choice, nor has he a double share. Now, this is the translation of the sloka by Colebrooke himself, and it is significant that the Sanskrit word which is translated by him as 'paternal grandfather', is pitamaha. There can therefore be no doubt that the expression ancestral estate' used by Colebrooke in translating the 27th sloka of the first section of the first chapter was intended to mean grand-paternal estate. https://hcservices.ecourts.gov.in/hcservices/ The word 'ancestor' in its ordinary meaning includes an ascendent in the maternal, as well as the paternal, line; but the 'ancestral' estate in which under the Hindu Law, a son acquires jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. The expression has sometimes been used in its ordinary sense, and that use has been the cause of misunderstanding. The estate which was inherited by Ganesh Prasad from his maternal grandfather cannot in their Lordships' opinion be held to be ancestral property in which his son had an interest jointly with him. Ganesh Prasad consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or any other person. On the death of her husband, the devise in her favour came into operation and she became the absolute owner of the village Kalinjar Tirhati, as of the remaining estate; and the sale of that village in execution proceedings against her husband could not adversely affect her title. For the reasons above stated, their Lordships are of opinion that the decree of the High Court should be affirmed, and this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly." (ii) AIR 1930 Madras 662 – C.SANKARANARAYANA MUDALIAR V. TANGARATNA MUDALIAR AND OTHERS. (ii) AIR 1938 Madras 841- C.V.VYTHIANATHA IYER V. C.V.VARADARAJA IYER AND OTHERS. 16. On the side of D26 the following decisions are cited: (i) (2010) 2 CTC 198 – NATARAJAN V. PARAMASIVAM, certain excerpts from it would run thus: "13. It is pertinent to note that the suit property is not a joint family property. It is a separate property, since the vendor of the appellant- plaintiff and the vendor of the respondent-defendant succeeded to the property on the maternal side. Any property derived or inherited from the female line or through the maternal grandparents are collateral and cannot be termed as the character of joint family. So, the suit property is not joint family property. Moreover, there is no evidence to show that the suit property, an extent of 353 sq.m. = 5 cents in Re- https://hcservices.ecourts.gov.in/hcservices/ Survey No.74/6 comprised in house-site patta No.67, situated in Arasalpuram Village in Villupuram Taluk, has been joint family property. As already stated, as per Ex.B2, the suit property has been settled in favour of Valliammal. So, the suit property is only a separate property of Valliammal and so,