IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.No.1167 of 1993 1. R.Lakshmi 2. Meenakshi Sundaram alias Manikandan ... Appellants/ Defendants 1 and 2 vs. 1. N.Thilagavathi ... Respondent/ Plaintiff 2. D.Kalavathi 3. S.Meenambigai ... Respondents/ Defendants 3 & 4 Appeal filed under Section 96 of the Code of Civil Procedure praying to set aside the judgment and decree dated 31.08.1993 in O.S.No.48 of 1991 on the file of the Subordinate Judge, Udumalpet. For Appellants : Mr.Sanjay for Mr.V.Nicholas For Respondents : Mr.A.S.Vijayaraghavan J U D G M E N T The unsuccessful defendants 1 and 2 in O.S.No.48 of 1991 have come on appeal before this Court, being aggrieved by the judgment and decree of the Subordinate Court, Udumalpet, dated 31.08.1993. 2. The case of the plaintiff as put forth before the Court below is, as under: (i) Item 1 of the 'B' Schedule suit property was in possession of one Raghupathi Chettiar, who is the father of the plaintiff and defendants 2 to 4 and the husband of the 1st defendant. The said Raghupathi Chettiar was doing Jaggery business in a successful manner and he purchased jewels and movable properties worth Rs.1,00,000/- and kept in his house. Further, he had deposited a sum of Rs.60,000/- in Pollachi Co-operative Bank in his favour. In respect of his properties, Raghupathi Chettiar has not executed any deeds and till his hospitalization, he was earning well and did not have any debts. Raghupathi Chettiar died intestate on 18.08.1990; his wife-the 1st defendant, daughters-the plaintiff and defendants 3 and 4 and son-the 2nd defendant are his legal heirs and each of them are entitled to 1/5th share of the suit property. https://hcservices.ecourts.gov.in/hcservices/ (ii) After the death of Raghupathi Chettiar, the plaintiff claimed her share in the suit property and the defendants 1 and 2 promised her the same. After coming to know that the defendants 1 and 2 without bringing to her knowledge have obtained a sum of Rs.24,500/- from Pollachi Town Co-operative Bank and have also obtained Legal Heir Certificate from Pollachi Tahsildar Office by putting her signature, the plaintiff lost confidence on defendants 1 and 2 and again claimed her share in the suit property; on 08.01.1991, the plaintiff sent a legal notice to defendants 1 and 2 claiming her share in the suit property and the defendants 1 and 2 sent a reply to the same on 21.01.1991 accepting the share of the plaintiff in the suit property and stating false debts and reasons. It is also the case of the plaintiff that Item 1 in the suit property i.e., House, if rented, would fetch Rs.500/- per month. Hence, the plaintiff filed a suit in O.S.No.48 of 1991 claiming her due share in the suit property and rent compensation. 3. On behalf of the 1st defendant, the 2nd defendant filed written statement and has denied the averments of the plaintiff. He has stated that Ragupathi Chettiar had deposited a sum of Rs.24,500/- in Pollachi Co-operative Bank for the future maintenance of his wife and had appointed his wife as nominee; Ragupathi Chettiar for a period of one year before his death was hospitalized; he did not do any business for three years before his death; since Ragupathi Chettiar was not in a position to affix his signature for his medical expenses, he had directed the 2nd defendant to obtain loan and the 2nd defendant through one A.Natraj obtained loan from other persons for a sum of Rs.55,000/- by means of pro note. Since the debts were not paid, the 2nd defendant paid the same by means of the matured deposit amounts of his father, in which his mother, the 1st defendant was appointed as a nominee. According to the 2nd defendant, the suit property is his ancestral property and his father is entitled to half share in the same and the remaining half share goes to him; the half-share of Ragupathi Chettiar, after his death goes to the plaintiff and the defendants; therefore, the plaintiff is entitled only to 1/10th share. The 2nd defendant further stated that he had wrongly mentioned in the reply notice that the plaintiff is entitled to 1/5th share in the suit property. 3a. The second defendant has further stated that the suit property which is located at Chinnampalayam Village is rented only for a sum of Rs.200/- per month since it is away from the Town; the averment in the plaint that the house is rented for a sum of Rs.500/- is false and the claim of the plaintiff that she has to be given a sum of Rs.100/- per month as rent compensation has to be negatived as the 1st defendant, who is the wife of the deceased Ragupathi Chettiar is entitled for maintenance. The 2nd defendant has put the plaintiff to strict proof in respect of her claim in https://hcservices.ecourts.gov.in/hcservices/ Item 2 of the schedule mentioned property. It is the case of the 2nd defendant that the plaintiff is not entitled to any share in the suit schedule property, as she has not come forward to bear with her share in the medical expenses of her father, the deceased Raghupathi Chettiar; therefore he prayed for dismissal of the suit. 4. The defendants 3 and 4 also in their written statement have denied the averments of the plaintiff and have stated that the suit schedule property is their ancestral property and that the plaintiff is entitled to only 1/10th share in the same. According to them, the plaintiff is not entitled to claim any share in the suit property as she has not come forward to bear with her share in the medical expenses incurred towards her father's hospitalization. Since they are prepared to pay their share towards the medical expenses of their father and obtain due share in the suit property, they prayed for the dismissal of the suit. 5. The Trial Court on an analysis of the evidence on record and on careful consideration of the facts and circumstances of the case held that Item No.1 of the suit schedule property is not an ancestral property and the plaintiff is entitled to 7/40th share; likewise the defendants 1, 3 and 4 are also entitled to 7/40th share each and the 2nd defendant is entitled to 12/40th share in the same; in respect of the 2nd item of the suit schedule property, the Trial Court held that the plaintiff is entitled to 7/40th share in the same and denied the grant of rent compensation as defendants 1, 2 and 4 are residing there and it is not rented; thereby, the court below decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendants 1 and 2 have come on appeal before this court. 6. Learned counsel for the appellants has contended that the court below failed to see that when admittedly the suit house originally belonged to Marimuthu Chettiar, the burden shifts on the plaintiff to prove that it is the separate property of Raghupathi Chettiar. It is the further contention of the learned counsel that when the plaintiff in the plaint had pleaded that the suit house is the separate property, in the evidence she had changed her case and claimed that 1/4th of the suit house is the joint family property and 3/4th of the suit house is the separate property; moreover, she has not placed any sale deed to show that Raghupathi Chettiar had purchased 3/4th share in the suit house. He also contended that the court below has failed to see that for the amount deposited in the Bank, the 1st defendant was nominated by Raghupathi Chettiar and the amount was withdrawn by her for discharging the loans obtained towards funeral ceremonies of Raghupathi Chettiar and therefore the plaintiff is not entitled to claim any share in the said amount. 7. In response, learned counsel for the respondents submitted that the Court below has rightly come to a conclusion that the suit https://hcservices.ecourts.gov.in/hcservices/ property is an ancestral property and has decreed the suit in favour of the plaintiff that she is entitled to 7/40th share each in Items 1 and 2 of the suit property; likewise the defendants 1, 3 and 4 were also ordered 7/40th share each and the 2nd defendant was ordered 12/40th share in the suit schedule property. According to the learned counsel, the judgment of the court below is correct and it does not require any interference. 8. I have carefully considered the submissions made by the learned counsel on either side and perused the materials on record. 9. Facts leading to this case would reveal that originally the suit property was owned by one Bodi Chettiar and after his death, his sons Marimuthu Chettiar, Venkatachalam Chettiar and Arumugham Chettiar were in possession of the same; later, Venkatachalam Chettiar and Arumugham Chettiar executed Sale Deeds under Ex.B1 dated 16.12.1940 and under Ex.B2 dated 20.04.1942 in respect of their 1/3rd share each in the said house property to and in favour of their brother, Marimuthu Chettiar; thereby, Marimuthu Chettiar became the absolute owner of the suit property and 1/3rd of the same being coparcenary or ancestral property inherited on the death of his father and the balance 2/3rd of the same being a self acquired property having been purchased from his brothers under Exs.B1 and B2. Marimuthu Chettiar enjoyed the said property during his life time and after his death in the year 1970, his wife Bakkiyammal, his elder son Subramaniam Chettiar, his younger son, Ragupathi Chettiar and his only daughter, Thadaga Nachammal seems to have treated the property as one belonging to the entire family; thereafter, Bakkiyammal, Subramaniam Chettiar and Thadaga Nachammal released their 1/3rd share each in the suit property for a consideration of Rs.1,500/- to and in favour of Ragupathi Chettiar, the younger son of Marimuthu Chettiar. Thus, Raghupathi Chettiar had 1/4th share of ancestral or coparcenary property in the entire suit property and the balance 3/4th share as a self acquired property by virtue of his getting a release deed under Ex.A3 in respect of it. 9a. From the pleadings, it is seen that Ragupathi Chettiar was doing jaggery business and he purchased jewels and movable properties worth Rs.1,00,000/- and kept in his house; moreover, he had also deposited a sum of Rs.60,000/- in his favour in Pollachi Town Co-operative Bank, appointing his wife as a nominee; thereafter, he was hospitalised and died intestate on 18.08.1990, leaving behind his wife, Lakshmi Ammal-the 1st defendant, his daughters – the plaintiff, defendants 3 and 4 and son – the 2nd defendant as his legal heirs. As seen from the averments, the plaintiff has instituted the suit before the Court below only on coming to know that the defendants 1 and 2 have obtained a sum of Rs.24,500/- from Pollachi Town Co-operative Bank without her https://hcservices.ecourts.gov.in/hcservices/ knowledge; it is also her case that the defendants 1 and 2 have obtained Legal Heir Certificate from Pollachi Tahsildar Office by putting her signature. It is also revealed from Exs.A1 and A2, dated 21.01.1991 and 26.02.1991 that the plaintiff has caused legal notice to the defendants 1 and 2 claiming her due share in the suit property and they have also replied to the same agreeing her share in the suit property and stating other reasons. The details of accounts maintained by Raghupathi Chettiar in his favour in Pollachi Co-operative Bank is marked as Ex.A4 and the letter written by Lakshmi Ammal, wife of Raghupathi Chettiar to the Managing Director of Pollachi Co-operative Bank and the Certificate is marked as Ex.A5. 9b. While so, it is the case of the defendants 1 and 2 that Raghupathi Chettiar had deposited a sum of Rs.24,500/- in Pollachi Co-operative Bank for the future maintenance of his wife and has appointed his wife as nominee. In the Written Statement, the 2nd defendant has stated that since Raghupathi Chettiar was not in a position to affix his signature for his medical expenses, the 2nd defendant obtained loan from other persons through one A.Natraj for Rs.55,000/- by means of pronotes, only on his father's instructions. It is also seen that after the death of Raghupathi Chettiar, the 2nd defendant had paid the debts by obtaining the matured Fixed Deposit amounts of his father. It is his case that the plaintiff is not entitled to any share in the suit property, as she has not come forward to bear with her share in the medical expenses incurred towards their father's hospitalisation and if at all she claims, she is entitled to only 1/10th share. He has also denied the averment of the plaintiff regarding rent compensation, that the house property is rented for only Rs.200/- and moreover, it is meant for his mother for her maintenance. 10. A perusal of the pleadings would further reveal that the suit property is located at Chinnampalayam Village and it is rented only for a sum of Rs.200/- per month and not for Rs.500/- per month as averred by the plaintiff. As the plaintiff had not shared the medical expenses of her father, the deceased Raghupathi Chettiar, the claim of her share in the property has been disputed. Now, the question which has to be decided is whether the plaintiff is entitled to 1/5th share or 1/10th share in the suit property. 11. In the light of the pleadings of the case and considering the oral and documentary evidence, it is seen that in respect of 1/4th share or coparcenary interest in Item No.1 of the suit property, Raghupathi Chettiar and his son, the second defendant namely, Manikandan @ Meenakshi Sundaram are entitled to 1/8th share each upon a notional partition as provided in Explanation 1 to Section 6 of the Hindu Succession Act, 1956, which reads as under: https://hcservices.ecourts.gov.in/hcservices/ "For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. " Upon such notional partition the character of that 1/8 share of Raghupathi Chettiar will change as absolute property of Raghupathi Chettiar and will devolve upon the Class I heirs specified in The Schedule to the Hindu Succession Act as per Section 8 of the said Act. Section 8 is extracted hereunder: "General rules of succession in the case of males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- "(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule. (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. " The 1/8th share notionally given to Raghupathi Chettiar will devolve equally on all the five legal heirs and each one will be entitled to 1/8 x 1/5 = 1/40 shares. In respect of the remaining 3/4th share of the self-acquired property of Raghupathi Chettiar, his wife, son and 3 daughters each will inherit 1/5th share as per the provisions of Section 8 of the Hindu Succession Act. Thus, the plaintiff and the defendants each will be entitled to 3/20 shares (3/4 x 1/5=3/20) of the self-acquired property of Raghupathi Chettiar. In total, the wife and 3 daughters of Raghupathi Chettiar will each be entitled to 7/40 shares (3/20 + 1/40 = 7/40) in the suit property. As far as the 2nd defendant, the male heir of Raghupathi Chettiar is concerned, he is entitled to 12/40 shares, in total (3/20 + 1/40 + 1/8 = 12/40 shares). 11a. Therefore, while analysing the legal position and the facts pleaded and proved based on the oral and documentary evidence, it is seen that the above shares have been rightly determined by the Court below and this Court finds no infirmity in the finding of the Trial Court and it is perfectly valid in accordance with explanation 1 to Section 6 of the Hindu Succession Act and also in accordance with Section 8 of the Act. https://hcservices.ecourts.gov.in/hcservices/ 12. In so far as the 2nd item of the suit property, namely, Rs.24,500/- received by the wife of Raghupathi Chettiar as his nominee is concerned, it is seen that she is only a Trustee for the said amount for and on behalf of all the legal heirs of Raghupathi Chettiar and the same does not have any character as ancestral or coparcenary property that devolved on Raghupathi Chettiar. Thus, the same being the coparcenary property of Raghupathi Chettiar, each one of the parties to the suit, being Class I heirs specified in the Schedule to the Hindu Succession Act, 1956 as per Section 8 of the said Act are entitled to 1/5th share in the same. However, the Trial Court has not taken note of the self-acquired property of Raghupathi Chettiar and treated the second item in the same manner as it treated the first item and granted a preliminary decree in the same line as it granted for the first item. 13. Therefore, in order to give a quietus to the problem as the matter is to be settled among the mother, son and daughters, in the absence of cross objections or appeal as against the portion of the decree in respect of the 2nd Item of the suit property, this Court feels it appropriate that the judgment and decree granted by the Trial Court in respect of the 2nd item of the suit schedule property has to be modified to the extent that the plaintiff and the defendants are each entitled to 1/5th share. Accordingly, it stands modified. The findings rendered by the Court below are confirmed except to the extent of modification in respect of 2nd item of the suit property as indicated above. The appeal suit stands disposed of on the above terms. No costs. Sd/- Deputy. Registrar. /true copy/ Sub Asst. Registrar. abe To : 1. The Subordinate Judge, Udumalpet. 2. The Section Officer,VR Section, High Court, Madras-104 A.S.No.1167 of 1993 SGL (CO) kk 30/7 https://hcservices.ecourts.gov.in/hcservices/