1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :20.12.2011 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU C.S.No.1253 of 1992 1.P.C. Vethagiri 2.P.V. Kumar 3.P.V.Ravikumar 4.P.V.Saraswathi (died) ... Plaintiffs Vs 1.P.R.Chittibabu Mudaliar (died) 2.P.C.Kubendran 3.P.K.Rajan 4.P.K.Gnanam 5.MinorP.K.Naresh represented by father and natural guardian P.C.Kubendran 6.P.C.Nehru 7.P.N.Angamma alias Yasodha 8.P.N.Sundari 9.P.N.Sridhar, minor represented by father and natural guardianP.C.Nehru 10.P.C.Nagarathinam 11.P.C.Thanigaivelu 12.Minor P.T.Mahalakshmi 13.Minor P.T.Harinath [Minors represented by father and natural guardian P.C.Thanigaivelu] 14.Duraisanee Ammal 15.Kumudhavalli 16.Vasantha 17.Devika Rani 18.Kumaravelu ... Defendants Civil Suit filed under order IV Rule 1 of the High https://hcservices.ecourts.gov.in/hcservices/ 2 Court Original Side Rules r/w order VII Rule 1 Code of Civil Procedure. For Plaintiffs : Mrs. S. Shyamala For Defendant No.18 : Mr.S.V. Jayaraman Senior Counsel for M/s. Mani Narayanan For D-1 to D17 : No appearance JUDGMENT 1.The plaint averments, in brief, are as follows:- 1.(a) The first plaintiff, 2nd defendant, 6th defendant, 10th defendant and 11th defendant are the sons of the 1st defendant. The schedule mentioned properties are ancestral joint family properties, of which the first defendant is Kartha. The sons of the first defendant are entitled to 9/48 share in the suit properties. The plaintiffs 2 to 4 are the sons and daughters of the first plaintiff. Defendants 3 to 5 are the sons of the second defendant. Defendants 7 to 9 are daughters and son of the 6th defendant. 10th defendant has no issue. Defendants 12 and 13 are the daughters and son of the 11th defendant. The suit property being co-parcenary joint family property, sons and unmarried daughter of the first plaintiff have also been added as parties to the suit. 1.(b) The first defendant has got 3 daughters by name https://hcservices.ecourts.gov.in/hcservices/ 3 Kumudavalli, Vasantha andDevigarani and the said three daughters have long back been given in marriage and they have been sufficiently provided for. The first defendant father and mother have also given each daughter one property apart from cash. The three daughters have also executed registered release deeds in favour of sons of 1st defendant who are parties to the suit viz., the first plaintiff, second defendant, 6th defendant, 10th defendant and 11th defendant. The first defendant and his five sons referred to above have entered into a family arrangement by means of Koor Chit – partition list dated 05.04.1978 recording oral divison of the co-parcenary joint family properties among themselves. 1.(c) The plaintiffs have always been ready and willing to continue to abide by the family arrangements reduced into writing dated 05.04.1978, according to oral partition and allotment of properties between co-parceners. Apart from the market at Kalmandapam Road, there are two more items in 'H' Schedule property to the Koor Chit, viz., market lane and Thambuchetty lane which are getting income of Rs.350/- per month. There is another item of property, viz., item 3 of 'H' Schedule which is fetching an income of Rs.1,500/- per month, that the income from 'H' Schedule of property (which has been kept in common) has been collected by the https://hcservices.ecourts.gov.in/hcservices/ 4 father and mother by engaging collecting agents, that the defendants 2, 6,10 and 11 have prevented collection of rents from 'H' Schedule property to the family arrangement for the past six months and about 10 days ago, the defendants 2,6,10 and 11 have even stopped one bill clerk (collecting agent) out of the two, that the rent from Kalmandapam market is being collected by the other bill clerk and shares between 6 shares at the rate of Rs.130/- per day, that the said arrangement continues even now and that the plaintiffs have no objection for the said arrangement to continue till the disposal of the suit. 1.(d) Defendants 2,10 and 11 brought into existence an agreement dated 07.11.1989 purporting to revoke the family arrangement, which was incomplete, that the document says that koor chit dated 05.04.1978 has been revoked, that this document is not valin in law and it did not come into force, that the plaintiffs have been ready and willing to act as per family arrangement and they are ready to abide by the allotment as per family arrangement dated 5.4.1978, that the purported family arrangement dated 5.4.1978 by the allleged agreement dated 7.11.1989 is not valid in law and not binding upon the plaintiffs, that the same is not a registered one, that in pursuance of the family arrangement, the 1st defendant has taken possession of the two portions https://hcservices.ecourts.gov.in/hcservices/ 5 in the building bearing Door No.129, Solayappan Streeet, Old Washermenpet, Madras 600021, that the 1st plaintiff has let out one portion on a monthly rent of Rs.500/-having received an advance of Rs.5000/- and is keeping the other portion locked. 1.(e) The father (1st defendant) and mother have been staying in the said property and the brothers viz., defendants 2,6,10 and 11 are occupying different portions, that the 1st plaintiff allowed defendants 1,2,6,10 and 11 by giving them permission to occupy different portions in the property bearing door No.129, Solayappan Street, Old Washermenpet, Madras-21, that the 2nd defendant who was allwed to be in permissive occupation of two portions, let out one portion and getting monthy rent of Rs.500/- and seems to have received an advance of Rs.5000/- and keeping the other portion locked, that similarly the 6th defendant has let out a portion for Rs.700/- per month, having received an advance of Rs.7000/-, 10th defendant is keeping his portin locked and 11th defendant has let out both the portions and getting rental income of Rs.350/- and Rs.400/- per month respectively, that while so, on 4.7.1991, defendant 2,10 and 11 have assaulted plaintiffs 2 and 3 and a criminal case is pending. 1.(f) In a registered sale deed dated 15.7.1982 https://hcservices.ecourts.gov.in/hcservices/ 6 executed by the 1st defendant, 1st plaintiff and defendants 2,6,10 and 11 to and in favour of K.Muthusamy, there is a clear reference to the Koor Chit dated 05.04.1978, that at the time of partition, provision has be made for the maintenance and management of the two choultries at Thiruvalangadu, Arakonam Taluk, which are family Trusts, that the 1st defendant is to give particulars of survey numbers and other things, that there is another property known as 'Samathi Thottam' at Kithandarama Iyer Land, Old Washermanpet, Madras-600021, where all ancestors are buried, that the samathi is in an area of about 15 grounds and there are structures around the samathi and let out for monthly rent, that the tenants put together are paying a monthly rent of RS.500/-, that the rent has to be collected by two branches, viz., 1st defendant and by elder brother's branch, that when the turn of 1st defendant's branch has come in October 1991, the rent has not been collected, that the defendants 2,6, 10 and 11 are creating trouble, abused the plaintiffs, assaulted and injured 2nd and 3rd plaintiffs and a criminal case is pending and that in the market about Rs.70000/- licence fee and electricity charges remain due and it is left uncollected. 1.(g) Front portion of the properties bearing Door Nos.122 and 126 Solaiappan Street have been sold to the 1st https://hcservices.ecourts.gov.in/hcservices/ 7 plaintiff by the defendants 1,2,6,10 and 11 including common passage, that the remaining portions have also been sold and defendants 1,2,6,10 and 11 have taken the sale proceeds, that the 1st plaintiff has also joined in the execution of the sale deed at the request of the defendants 1,2,6,10 and 11. 1.(h) Provision has to be made for meeting the marriage expenses of Plaintiffs 2 to 4, out of the family properties and the income therefrom, that arrangement has to be made for the marriage of 2nd and 4th plaintiff, that a sum of rS.5,00,000/- is required for meeting the marriage expenses, that the rents have been collected by the 1st plaintiff, that due to trouble created by defendants 2,6,10 and 11, rents remain uncollected and the tenants are taking advantage of it, that immediate steps to be taken for collection of rent. 1.(i) The plaintiffs are law abiding citizens, they want to live in peace, that the plaintiffs are acting and are ready and willing to act as family arrangement dated 05.04.1978, that the plaintiffs have been allotted 'C' Schedule properties to the family arrangement and 'H' Schedule property has been kept in common as per the family arrangement, that now defedants 2,6,10 and 11 are giving trouble, that the plaintiffs 2 and 3 have been assaulted by https://hcservices.ecourts.gov.in/hcservices/ 8 defendants 2,6,10 and 11 and a criminal case is pending, that in view of the attitude adopted by defendants 2,6,10 and 11 as referred above, the plaintiffs are put to the necessity of approaching this Court. 1.(j) The 1st defendant died on 3.5.1993 during pendency of the above suit, that on his death, the plaintiffs have impleaded his mother and his sisters also as parties to the above suit, that the mother of the 1st plaintiff also died on 4.2.1996, that after the death of his father and mother, the plaintiffs made further investigations and came to know that some more properties are available for joint possession and partition, that the properties are available to the father as Kartha of the joint family as could be seen from the registered settlement deed dated 9.3.1990 executed by one Murugesa Mudaliar, the great grandfather of the 1st plaintiff, that as per the settlement deed, one P.R.Subramania Mudaliar and his wife Shivabhushnam Ammal as life estate and the absolute estate will go to the children born to them, that it is stated that if they do not have any issues, the properties covered by the Settlement Deed will revert back to the Estate of Late Murugesa Mudaliar, that both the settlees died without any issues, that on the death of Subramania Mudaliar, the properties reverted back to Murugesa Mudaliar, the 1st https://hcservices.ecourts.gov.in/hcservices/ 9 defendant's great grandfather, leaving behind his one sone Rathnasabapathy Mudaliar, who also died leaving behind his only son P.R.Chittibabu Mudaliar, who is also the first defendant herein who is also no more and thus the properties covered by the settlement deed are available for partition as ancestral properties and that they are to be added in the plaint as 'L' Schedule properties. 1.(k) Apart from the above, the 1st plaintiff has come to know that the late paternar Grand Father, P.M.Rathnasabapathy Mudaliar has got 10 items of property as per the compromise decree in O.S.A.No.6 of 1937 which is arising out of C.S.No.490/1933, that after the death of P.M.Rathnasabapathy, the deceased 1st defendant had been looking after these properties, that on behalf of the 1st defendant, P.R.Subramania Mudaliar has been looking after the same till his death, that now P.R.Subramania Mudaliar is no more, it has become necessary to effect partition and separate possession of those properties which are also ancestral properties, that these have to be added as items in schedule 'M' to the plaint, that after the death the P.R.Subramnaia Mudaliar, one S.Kumaravelu, son of Masilamani Mudaliar is trying to claim management of the Schedule 'L' and 'M' properties proposed to be added to the plaint, that he has not rendered any accounts and is not co-operating for https://hcservices.ecourts.gov.in/hcservices/ 10 the for effecting partition and separate possession, that it is necessary to include the those items also in the plaint since they are ancestral properties, one traced from Murugesa Mudaliar and another traced from P.M.Rathnasabapathy Mudaliar, that the 1st plaintiff, defendants 2,6,10 and 11 are entitled to 9/48th share and the defendants 15 to 17 are entitiled to 1/48th share in the plaint 'L' Schedule and 'M' Schedule properties since these properties are encestral co-parcenary properties. 1.(l) The plaintiffs therefore file this suit for partition and separte possession of 9/48th share of the plaintiffs in the schedule mentioned properties by allotting Schedule 'C' property to the family arrangement dated 05.04.1978 to the plaintiffs and also division of 'H' Scheduel Proeprty to the family arrangement dated 05.04.1978 and also by division of 'L' and 'M' schedule properties kept in common by dividing the same into 48th shares by metes and bounds and allotment of 9 /48th sahre to the plaintiffs by granting a preliminary decree for partition; for a declaration that the deed dated 7.11.89 styled as Revocation Deed purporting to revoke the family arrangement is not valid and binding upon the plaintiffs and directing the defendants 2,6,10 and 11 to render the true and proper account of rental income they have collected form the suit https://hcservices.ecourts.gov.in/hcservices/ 11 properties and also directing the 18th defendant to render true and proper account of the rental income he has collected from the plaint 'L' and 'M' Schedules properties and on such account being taken, direct the payment of 9/48th share in the net relaisation to the plaintiffs with costs. 2.In the written statement filed by the defendants 2,6,10 and 11 it is stated as follows: 2.(a) These defendants do not admit the averments in the plaint except those that are specifically admitted and puts the plaintiffs to strict proof thereof, that the fourth plaintiff is dead and has to be removed from the array of parties, that plaintiffs 2 and 3 and defendants 3,4,5,7,8,9, 12 and 13 are unncessary parties to this suit as their rights are only aginst the head of their family viz., their father and cannot be worked out in this suit, that the plaintiff has failed to get the shares amended in consequence of the death of the first defendant, that the plaintiff has suppressed the material facts from this Court, that the Koor Chit dated 5.4.1978 was prepared only for the purposes of ceiling and was never acted upon, that there was no oral partition as alleged, that there was no family partition under the koorchit dated 5.4.1978as stated in the https://hcservices.ecourts.gov.in/hcservices/ 12 plaint, that the plaintiff himself has admitted that there was a revocation of the koorchit in 1989. 2.(b) It is false to state that these defendants had taken permission of the plaintiff to occupy portion in premises No.129 Solayappan Street, Washermenpet, that the plaintiff has added properties which are not in existence in this plaint, that the properties that were sold out by the plaintiff, these defendants and their father have also been added in the plaint and they are not available for partition, that the only properties now available for partition are:- Kalmandapam Market at 17 Kalmandapam Road 1.Door No.177 De Millows Road, Perambur Barracks 2.No.129 Solaiyappan Street, Old Washermenpet and 3.No.188 Pappams Broadways, Madras that the other properties are mostly built up by either tenants are tresspassers and only land can be sold as eviction is impossible at this belated stage and these defendants are ready and willing to effect the partition of the four items, mentioned above and or to sell the items at the prevalent market rate and divided the sale proceeds as per their 10/54 share each. https://hcservices.ecourts.gov.in/hcservices/ 13 2.(c) The plaintiff has no right to claim partition of trust properties, that the plaint is therefore bad for adding properties that are not partible, that the plaintiff had been collecting the rents for over 2 years and has not accounted to these defendants, that whatever had been collected by the mother was distributed as per each ones share, that however, both plaintiff and the defendants are liable to account for the rental collections in final decree proceedings, that the plaintiff has to account for the rental collections made by him from 1991, that the plaintiff has collected rent forgiving fathers signatures from D' Millers Road, that he is liable to account for the same, that the plaint is not maintainable without mentioning the correct shares of each sharer for impleading unnecessary parties to this suit and properties which are not available for partition and that the suit is liable to be dismissed. 3. 14th defendant in the written statement filed by the 14th defendant the written statement of defendants 2,6, 10 and 11 has been adopted. 4. In the written statement filed by the 17th defendant it is stated that originally the suit was filed by one the sons of this defendants father and his family members https://hcservices.ecourts.gov.in/hcservices/ 14 against the other sons and the members of their respective families, that this defendant's father died on 3.5.1993 and consequent upon his death, this defendant and also her sisters, i.e., defendants 15 and 16 have been brought on record in the above suit, that the defendant is entitled to a 1/48th share in the estate belonging to the family as this defendant's father was entitled to 1/6th share and consequent upon his death, as the legal heir of her father, she has obtained a 1/8th share out of the 1/6th share belonging to the father, that similarly each of the father of the defendants 15 and 16 are entitled to a 1/48th share, that during the pendency of the suit, some of the properties scheduled in the plaint have been sold and this defendant and also defendants 15 and a6 have received each of their respective shares in the sale proceeds, that in the remaining properties, this defendants and defendants 15 and 16 are entitled to a 1/48th share and that this defendant prays for a decree for partition of her 1/48th share. 5. In the written statement filed by the 18th defendant, the following are averred: 5.(a) The defendant is the adopted son of P.R.Subramania Mudaliar and that the plaintiffs are aware of https://hcservices.ecourts.gov.in/hcservices/ 15 the same and inspite of that, have deliberately chosen not to describe the defendant as the adopted son, and described him in the cause title as son of Masilamani, for obvious reasons to suit their convenience and with some ulterior motive, that the properties described in Schedule L & M are concerned, they are not joint family properties and they are not liable to be partitioned and that the plaintiffs are not entitled to any relief in respect of the same. 5.(b) Since this defendant is the adopted son of Subramanian, it cannot be contended that Subramanian died issueless and that properties reverted back to Murugesan, that the defendant's adopted father had executed a Will dated 25.9.67 and the said will was also probated by this defendant, that it cannot be contended that plaint schedule properties are available for partition and that the properties mentioned in L Schedule are the exclusive properties of this defendant and the plaintiff cannot claim any share therein, that it is true that Ratna Sabapathy Mudaliar got 10 items as per compromise, but it is false to state that the 1st defendant had been looking after the same and that it is also false to allege that P.R.Subramania Mudaliar was looking after on behalf of first defendant. https://hcservices.ecourts.gov.in/hcservices/ 16 5.(c) Ratna Sabapathy executed a Will dated 7.2.37 (which was probated) whereunder he had clearly stated in unequivocal terms that Chittibabu, first defendant has no share in or right or title to the property that fell to his share in C.S.No.490/33 and that being so, it is indeed suprising to allege that these properties are also available for partition, that the 1st defendat had filed O.P.No.149/65 before this Court and the same was dismissed and therefore, first defendant is estopped from claiming those items and the plaintiffs, who claim through first defendant, are equally estopped from claiming any right, interest, title or share in respect of these items, that the adoptive father had filed a suit in C.S.No.279/1944 on the file of this Court, in which Ammani Ammal, executor of the will of Ratnasabapathy was a party and decree was passed therein, where under item 2, item 6, item 8, item 9 and item 10 of M Schedule properties mentioned in the plaint schedule were allotted to this defendant's father and item 1 of M Schedule was treated as Trust properties and all these properties have been dealt with by this defendant's adoptive father P.R.Subramanian in his will dated 25.9.1967, which had been probated in O.P.No.779/94 by this defendant, that in view of the above, the plaintiffs cannot treat the properties mentioned in L and M Schedules as joint family properties https://hcservices.ecourts.gov.in/hcservices/ 17 now available for partition and that they are exclusive properties of this defendant and others mentioned in the will. 5.(d) The allegation that after the death of P.R.Subramanian, this defendant is trying to claim management and that he has not rendered acocunt etc., are all false and baseless, that there is no question of claiming management; in fact they are his properties in respect of which, plaintiff can have no right or claim and that question of rendition of accounts does not at all arise and he is not bound to account for and they are his properties, that the plaintiff is not entitled to any share in 'L' and 'M' schedule properties and nor are they entitled to any income therefrom and this defendant is not bound to render any account, that the suit a speculative suit as far as 'L' and 'M' schedules are concerned and that this defendant is neither a necessary nor a proper party to the suit and hence the suit may be dismissed with costs. 6. In the light of the above said pleadings, the following issues have been framed by this Court:- 1. Whether the plaintiffs are https://hcservices.ecourts.gov.in/hcservices/ 18 entitled to partition and separate possession of 9/48th share in Schedule 'H' properties in the plaint as per family arrangement dated 05.04.1978? 2. Whether the 17th defendant Devikarani is entitled to 1/48 share in the suit properties. 3. Whether the plaintiffs are entitled to allotment of 'C' schedule property as per the family arrangement dated 05.04.1978? 4. Whether the deed of Revocation dated 07.11.1989 is valid and binding upon the plaintiffs? 5. Whether the plaint schedule 'L' and 'M' properties are joint family properties and are liable for partition? 6. Whether the defendants 2,6,10,11 and 18 are liable to render accounts from the suit properties? 7. What relief are the plaintiffs entitled to? https://hcservices.ecourts.gov.in/hcservices/ 19 Issue Nos.1 to 4 7.The Genealogy Tree appended to the plaint would show the relationship of the parties which is as follows: MURUGESA MUDALIAR | | P.M.RATHNASABAPATHY MUDALIAR ALIAS PALAYATHAN | | P.R.CHITTIBABU MUDALIAR-DORAISAMI AMMAL (1st defendant) | | ___________________________|_________________________ | | | | | | | | Vethgiri Kubendran Nehru Nagarathinam Thanigai Kumuda Vasantha Devika velu valli rani [1st plntf] [2nd defdt] [6th [10th defdt] [11th defdt] =Lakshmi defdt] (no issues) | ___|____ __|___ __|______ ____|____ | | | | | | | | | | | P. P. P. P. P. P. P. P. P. P. P. V. V. V. K. K. K. N. N. N. T. T. K R S R G N A S S M H u a a a a a n u r a a m v r j n r g n i h r a i a a e e a d d a i r k s n s s m a h l n (P2) u w (D3) a h m r a a a m a n (D5) a i r k t a t (D4) M l (D8) (D9) s h r h i @ h (D13) (P3) i n Y m (P4) o a i r s (D 12) o d a (D7) https://hcservices.ecourts.gov.in/hcservices/ 20 8.The first defendant and his five sons entered into an unregistered family arrangement dated 05.04.1978 under Ex.P.1 regarding oral division of the joint family properties. Excepting 18th defendant, other defendants are not contesting the suit. D2, D6, D10 and D.11 filed written statement which has been adopted by 14th defendant. D-17 has filed a separate written statement claiming her 1/48th share paying court fee for her separate possession of her share. In these statements Ex.P.1 has not been effectively challenged. 9.As far as the claim of the 18th defendant is concerned, he is natural son of Masilamani Mudaliar. He claims to be the adopted son of P.R.Subramania Mudaliar. The validity of adoption and his right over the suit properties will be discussed in other issues. The parties excepting