IN THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 30.6.2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.949 of 1998 1.Venkatesan 2.Muniammal 3.Krishnan 4.Ravi 5.Alamelu ( minor rep. by her brother Venkatesan, the first appellant) ... Appellants/ Appellants/ Plaintiffs Vs. 1.Ramagounder 2.Govindasami 3.Jayaraman 4.Settu ... Respondents/ Respondents/ Defendants Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 27.03.1998, passed in A.S.No.36 of 1997, on the file of the Subordinate Judge, Krishnagiri, in confirming the judgment and decree dated 28.02.1996, passed in O.S.No.507 of 1995, on the file of the District Munsif, Krishnagiri. For Appellants : Mr.V.Raghavachari For Respondents 1, 3 and 4 : Mr.V.Nicholas For Respondent-2 : Mr.Sekar for Mr.C.R.Muralidharan JUDGMENT The unsuccessful plaintiffs are the appellants herein. 2. The appellants/plaintiffs filed the suit for partition of their 5/24 share of the suit property. 3. The case of the plaintiffs is that, the first defendant is the Kartha and the defendants 2 to 4, are his sons and the second https://hcservices.ecourts.gov.in/hcservices/ defendant is the father of the plaintiffs. The suit property is the ancestral property of the plaintiffs and the defendants and in that suit property, the second defendant has got 1/4 share. Therefore, the plaintiffs are entitled to 5/24 share in the suit property. Without giving the plaintiffs, their share, the defendants 1, 3 and 4, in collusion with the second defendant, are denying the right of the plaintiffs and are attempting to sell the property. Hence, the suit was filed for partition. 4. The second defendant, the father of the plaintiffs remained ex parte and other defendants 1, 3 and 4 contested the suit, stating that the plaintiffs are not entitled to the relief of partition, as the second defendant, father of the plaintiffs, executed a relinquishment deed in favour of the first defendant on 05.05.1995, relinquishing his right in the suit property and received a consideration of Rs.1,500/- and having relinquished his right, the second defendant lost his right over the suit property. Therefore, the plaintiff also will not get any right over the suit property. 5. It is further stated by the defendants 1, 3 and 4, that the second defendant purchased 4.69 acres of land and if the plaintiff's case is to be accepted that property is also liable for partition and without bringing that property, the suit filed for partition is bad, for partial partition and therefore, the plaintiffs are not entitled to the relief prayed for. The Trial Court, framed four issues viz., i)whether the plaintiffs are entitled to 5/ 24 share in the suit property? ii)whether the second defendant relinquished his right over the suit property under a relinquishment deed dated 5.05.1975? iii)whether the plaintiffs were born to the second defendant, after the execution of the relinquishment deed dated 05.05.1975, and held that plaintiffs 1 and 2 were born prior to 05.05.1975? 6. The Trial Court held that under the document dated 05.05.1975, the second defendant relinquished his right over the suit properties and that document will not bind the plaintiffs 1 and 2, as they were born on that date and they were having the right over the property and while executing the relinquishment deed in favour of the first defendant, the second defendant can relinquish only his share and he can not relinquish the share of the plaintiffs 1 and 2 and the plaintiffs 3 to 5 were born, subsequent to the relinquishment deed dated 05.05.1975, and hence, they cannot claim any share in the suit property and the plaintiffs 1 and 2 are entitled to 1 /12 share each in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 7. Nevertheless, the Trial Court held that the second defendant purchased the property of an extent of 4.69 acres and that property was not included in the suit and therefore, the plaintiffs were not entitled to the relief of partition and dismissed the suit and granted liberty to file a fresh suit for partition, by including the property, purchased by the second defendant. This was challenged by the plaintiffs in the first appeal and the First Appellate Court, concurred with the findings of the Trial Court and dismissed the appeal. Hence, this Second Appeal. 8. At the time of admission of the Second Appeal, the following Substantial Questions of Law were framed by this Court:- i)Whether the Courts below are right in dismissing the suit for partition after having held that Ex.B6, does not bind the appellants? ii)Whether the Courts below are right in dismissing the suit for partition on the ground that certain properties of the second defendant have not been included in the suit. iii)Whether the Courts below have not failed to see that release by a coparcener in favour of another coparcener without the consent of the remaining coparcener is invalid and void ab initio and does not bind the executant? iv)Whether the courts below are right in presuming that Ex.B7, property had been purchased from and out of the amount alleged to have been paid under Ex.B6, particularly when the duration of payment and purchase is separated by substantial period of time? 9. Mr.V.Raghavachari, the learned counsel appearing for the appellants submitted that having held that relinquishment deed executed by the second defendant in favour of the first defendant will not bind the plaintiffs, the Courts below ought to have held that the plaintiffs are entitled to the relief of partition. It is his further submission that as per law enunciated by the Hon'ble Supreme Court in the judgments reported in (1997) 2 M.L.J. 18 in the case of ( P.R.Munuswamy Naidu Vs. V.Venkatesan and others), (1987) 3 S.C.C. 294 in the case of ( Thamma Venkata Subbamma (dead) by LR Vs. Thamma Rattamma and others) and (2009) 7 M.L.J. 145 in the case of ( Ramulu Ammal Vs. Ramachandra Reddy and others) the relinquishment deed by a co parcener viz., the second defendant in favour of another co-parcener is void and therefore, the properties remain as co-parcener properties and the plaintiffs, as co- parceners, are entitled to 5/24 share in the suit properties and without appreciating the same, the Courts below dismissed the suit. 10. The learned counsel for the appellants furthermore submitted that the Courts below erred in holding that the property https://hcservices.ecourts.gov.in/hcservices/ purchased in the name of the second defendant has to be included, when there was no finding to the effect that the said property was purchased out of the consideration paid under the relinquishment deed. He also submitted that the relinquishment deed was executed in the year 1975 and the property purchased by the second defendant was in the year 1984 and in the absence of any evidence, that the property purchased in the name of the second defendant in the year 1984, was from the consideration received under the relinquishment deed, the said property cannot be included in a suit for partition. Moreover, no evidence was let in by the defendants that the property was also liable for partition and no attempt was made by the defendants to include that property in the suit for partition and therefore, the Courts below erred in dismissing the suit, by directing the plaintiffs to file a fresh suit for partition, by including the property purchased by the second defendant. 11. On the other hand, Mr.V.Sekar, the learned counsel for the respondents submitted that the second defendant is the father of the plaintiffs and as per the evidence adduced, he was managing the property and was acting as Kartha of the Family and he released his share in favour of the first defendant and that relinquishment is valid and the second defendant as the father of the plaintiffs 1, 3 and 4 is entitled to represent the interest of the plaintiffs and as the plaintiffs 3 to 5, were born, after the relinquishment deed, they are not entitled to any share of the relinquishment deed, executed by the second defendant and hence, the plaintiffs are not entitled to the relief prayed for. 12. Heard both the counsel. 13. In this case, the relationship between the parties is admitted. It is also held by both the Courts that after the execution of the relinquishment deed by the second defendant in favour of the first defendant, the plaintiffs are living in other Village and are living under one roof. Both the Courts have also held that the plaintiffs 1 and 2, were born at the time of execution of the relinquishment deed by the second defendant and plaintiffs 3, to5 were born subsequently, as evidenced by Exs.B.11 and B.12. Both the Courts have also held that the relinquishment deed will not bind the plaintiffs 1 and 2, as they were born on the date of execution of the relinquishment deed and the relinquishment was not for their benefit and the plaintiffs 3 to 5, were not born on the date of the execution of the relinquishment deed and therefore, they are not entitled to any share in the suit property . 14. The contention of the learned counsel for the appellants was that the relinquishment deed viz., Ex.B6, was not a valid document and in support of his contention he relied upon the https://hcservices.ecourts.gov.in/hcservices/ judgments reported in (1997) 2 M.L.J. 18 ( supra) (1987) 3 S.C.C. 294 ( supra) and (2009) 7 M.L.J. 145 (supra) . 15. Therefore, we will have to see what is the effect of the document Ex.B6. In the judgment reported in (1997) 2 M.L.J. 18 ( supra), it has been held that the relinquishment deed can only be in favour of the family even if the document is only for consideration and by reason of the relinquishment, share of the remaining co-parceners will be increased. The learned Judge also relied upon the judgment reported in (1990) I M.L.J. 507 in the case of ( Duaria @ Karunanidhi Vs. Devarajalu Naidu and ten others) wherein this Court has held as follows:- " A coparcener can make over his interest in the joint family properties, but that has to be in favour of the entire coparcenary as such. In such an event, it would be in the nature of a renunciation, so that the person who renounced would be in the same position as one who went out of the family and the other persons would continue in the coparcenary as reduced to that extent" 16. Further, the Hon'ble Supreme Court in the judgment reported in (1987) 3 S.C.C. 294 ( supra) after referring to the passage of Hindu Law, Fifteenth Edition, held that "when a renunciation is made by one coparcener in favour of another coparcener, that renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener, in whose favour, the renunciation was made." 17. In the above judgment it has been further held as follows:- " In this connection we may refer to the following passage from Mulla's Hindu Law, Fifteenth Edition Article264 Article 264 ( 1) Renunciation or relinquishment of his share – A coparcener may renounce his interest in the coprcenary property in favour o the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener of coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. https://hcservices.ecourts.gov.in/hcservices/ Assuming that it is a renunciation in favour of one of the coparcener, namely, Veera Redy, such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener in whose favour, the renunciation was made." 18. Therefore, from a reading of the above judgments, the arguments of the learned counsel for the appellants cannot be accepted and the renunciation by the second defendant in favour of the first defendant enures to the benefit of other coparceners and the relinquishment is valid and by virtue of the renunciation, the second defendant lost his right over the suit property and the plaintiffs 1 and 2, who were born on the date of execution of Ex.B6, their share would not have been relinquished or renunciated by the second defendant and therefore, the second defendant could have only relinquished his 1/ 12 share in the suit property in favour of the first defendant. 19. Hence, the relinquishment of 1/12 share by the second defendant is valid and it enures for the benefit of the other coparceners. Once relinquishment by the second defendant is valid only to the extent of 1/12 share of the second defendant, the plaintiffs 1 and 2 are entitled to 1/12 share each and are entitled to the decree for partition and the Courts below having found that the renunciation does not bind the plaintiffs 1 and 2, ought to have decreed the suit in respect of plaintiffs 1 and 2, of 1/12 share each in the suit property. Therefore, the substantial question of law No.1 is answered in favour of the appellants and it is held that the appellants 1 and 2 are entitled to 1/12 each in the property and they are entitled to the decree of partition in respect of their 1/12 share in the suit property . 20. The Courts below erred in dismissing the suit and in granting liberty to the plaintiffs to file the suit, by including the property purchased by the second defendant under Ex.B7. Admittedly, the relinquishment deed viz., Ex.B6, was executed in the year 1975 and the property purchased in the name of the second defendant was in the year 1984. No issue was framed by the Courts below to the effect, whether the property in Ex.B7, was purchased out of the income or from the consideration obtained under Ex.B6. Further, having regard to the time gap i.e., from the year 1975 to 1984, it cannot be presumed that the consideration obtained under Ex.B6, was the basis for the purpose of purchasing the property under Ex.B7, which is of the year 1984. Therefore, in the absence of any evidence, it cannot be presumed that the property purchased in the name of the second defendant under Ex.B7 is also liable for https://hcservices.ecourts.gov.in/hcservices/ partition. Moreover, the defendants have not taken any steps to include that property in the suit and they have not contended that the property is also liable for partition. 21. Therefore, in my opinion, there was no evidence to the effect that the property purchased in the name of the second defendant was purchased out of the consideration obtained by the second defendant under Ex.B6, and also having regard to the time gap, it cannot be presumed that Ex.B6, provided consideration for Ex.B7. Hence, the substantial question of Law No.2 and 4, are answered in favour of the appellants and it is held that the Courts below are not right in dismissing the suit for partition, by giving liberty to the plaintiffs to file a fresh suit by including the property purchased by the second defendant, on the ground, that the second defendant's property was not included in the suit and Ex.B7, and that property was purchased from and out of the amount paid under Ex.B6. 22. I have already held that the relinquishment deed viz., Ex.B6, dated 05.05.1975, is valid to the extent of the second defendant's share and it would not bind the plaintiffs 1 and 2 and therefore, the third substantial question of law is answered against the appellants. 23. Therefore, the judgment and decree of the Courts below are set aside and a preliminary decree is passed in favour of the plaintiffs 1 and 2, declaring that they are entitled to 1/12 share in the suit properties. 24. In the result, the Second appeal is partly allowed. However, there shall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sd To 1. The Subordinate Judge, Krishnagiri, https://hcservices.ecourts.gov.in/hcservices/ 2. The District Munsif, Krishnagiri. 1 cc to M/s.V. Raghavachari, Advocate, Sr. 37985 1 cc to M/s.V. Nicholas, Advocate, Sr. 38627 S.A.No.949 of 1998 RSI (CO) kk 1/8 https://hcservices.ecourts.gov.in/hcservices/