IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.12.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.63 of 2007 and M.P. Nos.1, 1 of 2007 and 2008 1.S.Ponnammal 2.K.Malliga 3.B.Dhanam 4.G.Kavitha .. Appellants/Defendants (Appellants 2 to 4 are rep. by their father T.Sivagnanam) Vs 1.S.Suganthi 2.Minor S.Keerthana 3.Minor S.Gunalakshmi .. Respondents/Plaintiffs (Minors rep. by Mother and natural guardian S.Suganthi) Prayer: This Appeal Suit has been preferred under Section 96 C.P.C., praying to set aside the Judgment and decree dated 30.08.2006 in O.S.No.589 of 2004, on the file of the Additional District Cum Fast Track Court No.I, Chengalpet. For Appellants : Mr.V.Raghavachari For Respondents : Mr.M.Liagat Ali for Mr.Jo.Jayanathan JUDGMENT This appeal has been arising out of the Judgment and decree dated 30.08.2006 made in O.S.No.589 of 2004, on the file of the Additional District Cum Fast Track Court-I, Chengalpet. 2.The averments made in the plaint are as follows: (i) The first plaintiff married one S.Sivakumar, son of the first defendant and brother of the defendants 2 to 4 on 20.08.1999. Three months after the marriage, T.Sivagnanam, father-in-law of the first plaintiff and the husband of the first defendant died. (ii) Due to the lawful wedlock between the first plaintiff and Sivakumar, she gave birth to a daughter Keerthana, who was arrayed as second plaintiff. The first plaintiff's husband died on 05.11.2002. She gave birth to another daughter on 28.02.2003, who was https://hcservices.ecourts.gov.in/hcservices/ arrayed as third plaintiff. The first plaintiff and her two daughters Keerthana and Guna Lakshmi and the first defendant are the legal heirs of the 'A' schedule properties, which absolutely belonged to late. Sivakumar. (iii) The properties left by late. Sivagnanam, the husband of the first defendant and the properties left by late. Sivakumar are liable to be partitioned. (iv)The plaintiffs and the defendants have joint possession of the property and the plaintiffs are entitled to 1/5th share in 'A' schedule property. (v) The first plaintiff's father Kanniappan lent a sum of Rs.2.5 lakhs to late Sivakumar and he is entitled for that amount. (vi) Sivagnanam and Sivakumar jointly purchased 'B' schedule property and the plaintiff's are entitled to 6/10th share in the same. Hence they come forward with the suit for partition of 1/5th share in 'A' schedule property and 6/10th share in 'B' schedule property and prayed for a decree. 3.The gist and essence of the written statement filed by the first defendant is as follows:- (i) The relationship is admitted. The first plaintiff is the wife of late. Sivakumar and the plaintiffs 2 and 3 are their children. Sivakumar was unemployed and he was living at the mercy of his father. His marriage was performed at the expenses of his father only. The defendants 2 to 4 are married and living with their husband in different places. Palani, husband of third defendant only strong supported of Sivakumar used to provide amounts for his maintenance, since Sivakumar had no independent income and unemployed. Hence Sivakumar had no source to procure sale consideration and to purchase property on his own account. Palani alone paid entire sale consideration in purchasing 'B' schedule property, late. Sivakumar and his father are only name lenders and Binamidar of Palani, who purchased the said property in the name of them. He also permitted Sivakumar to receive rent towards his maintenance. After the death of Sivagnanam, Sivakumar and defendants are entitled to equal share in 'A' schedule property. But the plaintiffs are not entitled to 'B' schedule property. (ii) Guduvanchery property was belonging to this defendant having purchased the same from and out of her own savings for her future benefit and the same not belonged to Sivakumar as alleged. Sivakumar had obtained insurance policy for Rs.75,000/- in his name. He wanted to purchase first time property for him. As he had no source of income or he had no money with him, he borrowed Rs.2,00,000/- as loan. In fact he gave an amount he paid https://hcservices.ecourts.gov.in/hcservices/ Rs.1,00,000/- to the owner of the property through cheque and retained another Rs.1,00,000/- spent by him for his family maintenance. The loan due remain undischarged. (iii) 'B' schedule property was let out to one Narayanalal sait for running wine shop, since the advance amount was appropriate by Sivakumar. But Palani became liable to repay the advance amount after the lapse of lease period. The first plaintiff taken all her jewels except one gold chain worth two sovereigns and house hold articles like cupboard, utensils, cot are available and the plaintiffs can collect the same at any time. (iv)Sivakumar died due to heart attack. There was a cordial relationship between the plaintiffs and the first defendant. All the assets and liabilities were discussed and the first plaintiff agreed to take back all her belonging including amount for 1/5th share in the 'A' schedule property. But she had filed the suit with vexatious claim. There was a Panchayat, both parties are present and accepted for mediation. Accordingly it was settled that the value of 1/5th share in the 'A' schedule property was ascertained and paid to the plaintiff for their settlement and benefit. (v) In respect of 'B' schedule property, entire sale consideration is paid by Palani out of Rs.10,000/- rent, Rs.6,000/- paid towards interest out of balance Rs.4,000/- it was agreed that this defendant and the first plaintiff to be shared till March 2003. Hence the issue has already discussed, compromised and settled. This defendant always ready and willing to return the first plaintiff's articles left in the house together with value of the plaintiff's 1/5th share in the 'A' schedule property. (vi) The plaintiffs are also entitled to their legitimate share in the insurance amount. The suit is not properly valued. The plaintiffs are out of possession. Hence, the defendants prayed for the dismissal of the suit. 4.The gist and essence of the additional written statement filed by the first defendant is as follows: (i) The plaintiff purposely omitted to mention about the debts payable by the family. At the time of lease, Narayanalal Sait to run wine shop, he has paid Rs.2 lakhs as an advance. Another portion of the building was let out to Rathna Stores for business and the owner also paid Rs.2 lakhs as an advance. The said amount not repaid and undischarged. The rental income is not that much as claimed by the plaintiffs. Narayanalal Sait vacated, since his license expired and the said portion was let out to TASMAC for wine shop at the monthly rent of Rs.3,000/- only and if at all the plaintiffs are entitled to, they are just entitled to only Rs.500/- per month. (ii) On 27.10.2002 this defendant with the consent of all https://hcservices.ecourts.gov.in/hcservices/ sharers including deceased son entered into an agreement of sale with regard to 1,200 sq.ft. in item No.1 in favour of one Rohini, wife of Vaitheeswaran for Rs.8,25,000/- and received Rs.3,00,000/- as an advance by Sivakumar by way of ICICI bank cheque dated 27.10.2002 and another one lakh by way of cash. Since Sivakumar died subsequently, the first plaintiff did not come forward for alienation, the sale could not be completed and the said Rs.3 lakhs is also remain unpaid and undischarged. Besides this defendant was paid huge municipal property tax and maintenance charges. The first plaintiff has taken all her belonging including jewel by way of an I.A. pending suit in the presence of her counsel. (iii) The plaintiffs, whom claim share in the property shall also bear the liabilities proportionately. 5.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed two issues and one additional issue and considering the oral evidence of P.W.1 and D.Ws.1 and 2 and Exs.A1 to A6 and B1 to B6, granted preliminary decree of partition of 1/5th share in respect of 'A' schedule property and 27/40 share in respect of 'B' schedule property. Against which, the present appeal has been preferred by the defendants 1 to 4. 6.After hearing the arguments of both sides counsel, the following points for consideration were framed: 1.Whether the appellants herein have proved the liabilities to their family? 2.Whether the plaintiffs are entitled to share in 'A' schedule property is admittedly a dwelling house? 3.Whether the trial Court is correct in held that 'B' schedule property belonging to Sivagnanam and Sivakumar and granted 27/40 share in 'B' schedule property to the plaintiffs? 4.Whether the decree and Judgment passed by the trial Court is sustainable? 5.To what other reliefs, the appellants are entitled to? 7.Point No.2: (i)The respondents herein are the plaintiffs filed a suit for partition of 1/5th share in 'A' schedule property and 6/10th share in 'B' schedule property. The first item of the property is absolutely owned by one Sivagnanam. Sivagnanam's wife is the first appellant Ponnammal and they are having a son by name Sivakumar. His wife is Suganthi, the first respondent/first plaintiff. Their children are https://hcservices.ecourts.gov.in/hcservices/ minor Keerthana and minor Gunalakshmi, the respondents 2 and 3/plaintiffs 2 and 3. The daughters of Sivagnanam and Ponnammal are the appellants Mallika, Dhanam and Kavitha, the appellants 2 to 4/defendants 2 to 4. (ii) Admittedly, Sivagnanam died intestate, leaving behind his wife and a son and three daughters. Hence all are entitled to equal share in the property. Sivakumar died on 05.11.2002, leaving behind his wife and one daughter. The third plaintiff is a posthumous child born on 28.02.2003. (iii) The paragraph-7 and the last portion of the paragraph-8 of the written statement show that the first defendant herself admitted that the plaintiffs are entitled to 1/5th share in the 'A' schedule property. Hence there is no dispute in respect of 'A' schedule property. (iv) In the grounds of appeal, the appellants herein have raised that 'A' schedule property is a dwelling house. The female heir is not entitled to the share. But at the time of arguments, the learned counsel for the appellants has not canvassed the same in view of the amended Act repealing for deleting Section 23 of Hindu Succession Act came into effect on 09.09.2005. Hence I am of the view that the trial Court is correct in granting preliminary decree of partition in respect of 1/5 share in 'A' schedule property. Point No.2 is answered accordingly. 8.Point No.3: (i) In respect of 'B' schedule property, the arguments advanced by the learned counsel for the appellants that even though the sale deed has been in the name of Sivagnanam and Sivakumar, the sale consideration has been paid by Palani, who is the son-in-law of the first appellant and the husband of the third appellant. Even though they put forth binami transaction, neither Palani was examined nor his wife was appeared before the Court and put forth their case. In such circumstances, the arguments advanced by the learned counsel for the appellants that the 'B' schedule property, which was purchased by Palani in the name of his father-in-law and brother-in-law is unacceptable one. The theory of binami put forth by the appellants herein is not proved, so the arguments advanced by the learned counsel for the appellants is unacceptable one. (ii) Since 'B' schedule property stands in the name of Sivagnanam and Sivakumar, each are entitled to ½ share in the said property. Since Sivagnanam died intestate, his ½ share has been devolved upon his son Sivakumar, wife Ponnammal and three daughters/appellants. Each entitled to 1/5th share in ½ share of Sivagnanam. So each entitled to 1/10th share in the entire 'B' schedule property. Therefore, Sivakumar entitled to 6/10th share https://hcservices.ecourts.gov.in/hcservices/ (i.e.) 1/10th share by inheritance and 5/10th share in ½ share in the property. Since he died intestate, his mother, wife and children are entitled to equal share in the said 6/10th share. So each entitled to 1/4th share in 6/10th share of the 'B' schedule property. So the plaintiffs each entitled to 6/40th share in the 'B' schedule property. Totally, the respondents/plaintiffs are entitled to 18/40 share and the mother of deceased Sivakumar, who is the first appellant/first defendant is entitled to 1/10 + 6/40 = 10/40 share. The appellants 2 to 4 each entitled to 4/40 share. (iii) The trial Court has committed an error in calculating the share to the plaintiffs/respondents as 27/40 in 'B' schedule property. So I am of the view that the respondents/plaintiffs are entitled to 18/40 share in 'B' schedule property. So the trial Court is correct in granting share in respect of 'B' schedule property, but the quantum of share entitled to the respondents/plaintiffs is only 18/40 instead of 27/40. Point No.3 is answered accordingly. 9.Point No.1: (i) In respect of liability is concerned, the learned counsel for the appellants submitted that D.W.2 was examined and deposed that he has given a sum of Rs.2,00,000/- to the deceased Sivakumar, the husband of the first respondent, for rental agreement Ex.B1 to run Rathna sweets. After the death of Sivakumar, D.W.2 has paid Rs.1,800/- per month as a rent for that shop in the property, which was received by Palani, the husband of the third appellant/third defendant. Since D.W.2 has vacated the premises two years ago, he has not taken back the advance amount of Rs.2,00,000/-. (ii) Considering the evidence of D.W.2, I am of the view that the evidence of D.W.2 is not trustworthy. It is painful to accept that without receiving the advance amount, D.W.2 has vacated the premises. No one has vacated the premises that too in market area without receiving advance amount. Hence I am of the view that the evidence of D.W.2 is unacceptable. (iii) Furthermore, it is pertinent to note that at the time of filing first written statement, the first appellant herein has not pleaded the same. The written statement was filed on 13.10.2004. But the additional written statement filed only on 02.01.2006 nearly 2 years later. In the additional written statement only, the appellants averred the alleged liability of the family and also the sale agreement. But there is no evidence let in before this Court to show that the appellants' family is liable to pay the debt of the third party. Even though the sale agreement Ex.B2 was executed on 27.10.2002, no suit has been filed till now and no notice has been issued to the respondents. Neither Rohini, the alleged agreement holder nor her husband Vaitheeswaran was examined before this Court to prove that the sale agreement was in force. In such circumstances, https://hcservices.ecourts.gov.in/hcservices/ I am of the view that the averments in paragraphs-3 and 4 of the additional written statement are concocted, created and fabricated for the purpose of this case. Hence I am of the view that the trial Court has considered this aspect in proper manner and came to the correct conclusion that the appellants herein have not proved the liability to their family. In such circumstances, I am of the view that the appellants are not entitled to any relief in the appeal. Point No.1 is answered accordingly. 10.Points No.4 and 5: In view of the answer given to points No.1 to 3, the respondents/plaintiffs are entitled to 1/5 share in 'A' schedule property and 18/40 share in 'B' schedule property instead of 27/40 share in 'B' schedule property. Since the appellants are not proved the liability to their family, the appeal is allowed only in respect of quantum of share in 'B' schedule property (i.e.) the respondents herein are entitled to 18/40 share in 'B' schedule property instead of 27/40 share. 11.In fine, The preliminary decree is modified accordingly. In other aspects, the appeal is dismissed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar kj To 1.The Additional District Cum Fast Track Court No.I Chengalpet. https://hcservices.ecourts.gov.in/hcservices/ 2.The Record Keeper V.R. Section, High Court, Madras. + 1 C.C. To Mr. V. Raghavachari Advocate Sr.No.96628/10 + 1 C.C. To Mr. Jo.Jayanathan Advocate Sr.No.90637/10 Appeal Suit No.63 of 2007 KGK[CO] KS 06/05/2011 https://hcservices.ecourts.gov.in/hcservices/