IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-2-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN O.S.A.Nos.33 to 36 of 2010 and M.P.No.1 of 2010 in OSA 33 of 2010 and M.P.No.1 of 2010 in OSA 36 of 2010 R.Roopkumar .. Appellant in OSA 33 & 36/2010 HUF of Late Dr.C.Ranganathan Rep. By its Kartha R.Roopkumar .. Appellant in OSA 34 & 35/2010 vs 1.R.Shanthakumari 2.Yamuna Sudheendra 3.Hemalatha 4.Dr.S.Snehalatha 5.R.Jayakumar .. Respondents in OSA 33/2010 1.R.Jayakumar 2.R.Shanthakumari 3.Yamuna Sudheendra 4.Hemalatha 5.Dr.S.Snehalatha .. Respondents in OSA 34 to 36/2010 Original side appeals preferred under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the Letters Patent against the common order of this Court dated 12.8.2009 made in A.No.1508 of 2008 and 1325, 1326 and 1324 of 2009 in C.S.No.776 of 1997. For Appellants : Mr.S.Suresh Kumar For Respondents : Mr.Chandrasekaran for R1 in OSA 33/2010 & for R2 in OSA 34 to 36/2010 https://hcservices.ecourts.gov.in/hcservices/ Mr.Prakash Goklaney for RR2 to 5 in OSA 33/2010 & for RR1 and 3 to 5 in OSA 34 to 36/2010 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) All these intracourt appeals challenge a common order of the learned Single Judge of this Court made in A.Nos.1508 of 2008 and A.Nos.1324, 1325 and 1326 of 2010 whereby A.Nos.1324 and 1325 of 2009 were dismissed while the other applications were allowed to the extent indicated therein. 2.The Court heard the learned Counsel for the appellants and also for the respondents at the admission stage and also looked into all the materials including the common order under challenge. 3.The following would emerge as admitted facts: (a) The plaintiff who is the fifth respondent in OSA 33/2010 filed the suit for partition of two properties mentioned in Schedule 'A' and 'B'. The plaintiff and the second defendant are the sons and the first defendant is the wife and the defendants 3 to 5 are the daughters of one Dr.C.Ranganathan. A preliminary decree came to be passed on 18.11.1998, declaring that the plaintiff and the defendants 1 to 5 were each entitled to 1/6th share in 'B' Schedule properties. As far as 'A' Schedule was concerned, the plaintiff and the second defendant who were the sons of Ranganathan, were entitled to 7/18th share each, and the defendants 1, 3 and 5 were entitled to 1/18th share each. (b) Two applications in A.Nos.4453 and 4454 of 2000 were filed seeking final decree and also for appointment of advocate commissioner to divide the suit properties respectively. The Court issued direction for sale of the first item in 'A' Schedule and items 2 and 3 of 'B' Schedule in public auction. As far as the second item of 'A' Schedule was concerned, the parties entered into a compromise on 8.2.2005, and the same was recorded. Pursuant to the directions of the Court, item 1 of 'B' Schedule properties was sold for Rs.2,01,00,000/-, and after deducting the Commissioner's fee, the entire balance was invested in the Indian Bank, High Court Branch, by way of deposit, by an order dated 24.4.2007. Thereafter, the sale deed was executed and registered in favour of the purchaser on 16.7.2007. (c) While the matter stood thus, the second defendant who is the appellant herein, made an application in A.No.7106 of 2007 stating that unless the entire sale proceeds were invested in terms of the Income Tax Act, it would attract Capital Gains Tax, and hence he requested that his share was to be deposited in Rural Electrification Corporation Ltd., Bonds Series VII. The other sharers wanted to withdraw their respective amounts stating that they have got their own income tax planning. The second defendant contested the same https://hcservices.ecourts.gov.in/hcservices/ stating that he was the kartha of the HUF, and if such withdrawals were permitted, first the share of the HUF would disappear. (d) On enquiry, the Court made necessary orders in A.Nos.7105 and 7106 of 2007. Following the said order, A.No.1508/2007 was filed by the plaintiff seeking directions to liquidate the fixed deposits referred to above and for issuing a cheque for a sum of Rs.1,83,99,891/- which was equivalent to 25.66% of his share of the proceeds. Equally, the first defendant mother also filed A.No.5472 of 2008 seeking withdrawal. The second defendant filed A.Nos.1323 to 1326 of 2009 for permission to invest the share and for a direction to liquidate the fixed deposits respectively. (e) The respondents therein were given opportunity to file their counter. (f) On enquiry, the learned Single Judge has dismissed A.Nos.1324 and 1325 of 2009 and allowed A.Nos.1508 of 2008 and 1326 of 2009. Aggrieved, the second defendant has brought forth all these appeals. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that it is pertinent to note that the plaint 'A' Schedule properties are admittedly HUF properties and assessed to income tax; that as such the tax payable towards capital gains arising out of the sale proceeds of the HUF property, is a sovereign debt or a priority debt; that in fact, the HUF is a party to the sale deed dated 14.6.2004, in respect of the property bearing Door No.91, Varadha Muthiappan Street, Chennai, and on behalf of the Kartha has executed the sale deed; that under the circumstances, its 2/3rd share in the said property should have been ordered; that by mere issuance of notice of partition, HUF will not cease or come to an end; that the learned Single Judge has not taken into consideration any one of these aspects, and hence the order of the learned Single Judge has got to be set aside. 5.The learned Counsel for the fifth respondent/plaintiff put forth his submissions in his sincere attempt of sustaining the order of the learned Single Judge. 6.The Court paid its anxious consideration on the submissions made. 7.As stated above, it is not in controversy that pursuant to the orders of the Court made on 24.4.2007, the sale proceeds of Rs.2,01,00,000/- after deducting the Commissioner's fee, was deposited with the Indian Bank, High Court Branch, Madras. It is also not in controversy that a preliminary decree was passed declaring that the plaintiff and the second defendant were entitled to the share at 25.66%, and the first defendant mother and the daughters who were the defendants 3, 4 and 5, were entitled to 12.17%. Thereafter, on application, final decree was made, and it has become final. It was the second defendant who took out an application in A.No.7106 of 2007 stating that the entire sale proceeds were to be invested in terms of the Income Tax Act. It was urged by him in that application itself that if the withdrawals were allowed to be done, the share of the HUF would vanish. Taking into https://hcservices.ecourts.gov.in/hcservices/ consideration the contentions put forth on either side, the Court already made an order in A.Nos.7105 and 7106 of 2007 which runs as follows: "8.In view of the aforesaid submissions, both the applications are allowed with the following directions:- (a) The Registry is directed to liquidate the fixed deposit standing to the credit of C.S.No.776 of 1997 in the Indian Bank, High Court Branch, Chennai. (b) After liquidation, the Registry shall issue a cheque in the name of the plaintiff for an amount equivalent to 1/6 share of the proceeds of the fixed deposit with accrued interest thereon. (c) Similarly, the Registry is directed to issue a cheque in the name of the 2nd defendant for a sum equivalent to 1/6 share out of the proceeds of the fixed deposit with accrued interest. (d) The balance amount shall again be invested in fixed deposit in the Indian Bank, High Court Branch, for a period of one year, renewable thereafter from time to time. It will be open to the other co-sharers to come up with applications for payment out. (e) The 2nd defendant (applicant in A.No.7106 of 2007) is permitted to deposit the said amount in Rural Electrification Corporation Limited Bonds Series VII, as prayed for by him or in any other manner as he deems fit for the purpose of avoiding the incidence of Capital Gains Tax in tune with the provisions of Income Tax Act. (f) If the parties to the suit are ultimately imposed with an obligation to pay Capital Gain Tax, on account of any of the parties not investing the share allotted to him/her in accordance with the provisions of the Income Tax Act, the other parties, who make investments in accordance with the provisions of the Income Tax Act are entitled to charge the liability so incurred, upon the party responsible for such incidence of tax. It will be open to such other parties to seek a charge on the property allotted to the share of such party whose action or failure results in such tax incidence." 8.The orders so made in those applications on 4.2.2008, were not appealed against, and thus, the orders have become final and would be binding on all the parties to the proceedings. Reiterating the very same contentions, the second defendant has brought forth the instant applications raising objection to the withdrawal of the amounts by stating that the sale proceeds must be invested under Sec.54 EC of the Income Tax Act so as to avoid the Capital Gains Tax. These contentions were originally considered by the learned Single Judge on the earlier occasion in A.Nos.7105 and 7106 of 2007, and after doing so, in order to safeguard the rights of the parties if a contingency to make a capital gain tax would arise, it is specifically stated https://hcservices.ecourts.gov.in/hcservices/ that if the capital gains tax were to be imposed ultimately on account of the non-investment of the shares allotted to any of the party, they were entitled to charge liability so incurred upon the parties whose shares were not invested since those parties were also responsible for such incidence of tax. It was also made clear in that order that it was open to such other party to seek a charge on the property allotted to the share of such party whose action or failure resulted in such tax incidence. Once the rights have been so safeguarded by the earlier order, which has also become final, the present applications made by the second defendant were uncalled for, 9.Apart from the above, the application which was filed in A.No.1508 of 2008 by the plaintiff was in order to put the earlier order in execution by issuing a direction to liquidate the fixed deposit and for issuing a cheque in respect of his share in the sale proceeds. The learned Counsel for the fifth respondent/plaintiff brought to the notice of the Court that already an application was filed in A.No.4519 of 2009 to implead the HUF as a party to the proceedings. An order of dismissal was made on 23.10.2009 holding that enough safeguard has been made in the earlier orders to protect the interest of all the sharers in case of default of all and other consequential loss. Hence it would be quite evident that all these applications were brought forth by the second defendant reiterating the earlier contentions which were rejected pointing to the safeguards already made. In view of the same, the imposition of tax which is apprehended by the appellant, is only a contingent event in future, and the necessary safeguard in that regard has also been made by the earlier orders of the Court. Under the circumstances, this Court is of the considered opinion that the appeals do not carry any merit whatsoever. 10.In the result, all these original side appeals are dismissed confirming the order of the learned Single Judge and leaving the parties to bear their costs. Consequently, connected MPs are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To The Sub Assistant Registrar, Original Side, High Court, Madras. 4 ccs To Mr.S.Suresh Kumar, Advocate, SR.11863 to 11866 1 cc To Mr.K.Chandrasekaran, Advocate, SR.11752 OSA Nos.33 to 36 of 2010 SP(CO) sra 03/03/2010 https://hcservices.ecourts.gov.in/hcservices/