IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 07.02.2011 Coram: The Honourable Mr. Justice R.S.RAMANATHAN S.A. No. 878 of 1997 and C.M.P.No.8539 of 1997 1. Shanmuga Nadar 2. Krishnaveni 3. Jayakandan 4. Nagarajan ...Appellants/ Respondents Cross Objections Plaintiffs ..vs.. 1. Jagadambal 2. Ulaganathan 3. Vedalingam 4. Minor Natarajan (Minor represented by mother guardian 1st respondent) ...Respondents 1 to 4/ Appellants 1 to 4/ Defendants 1 to 4 5. Nagarajan ...5th Respondent/ 5th Respondent 5th Defendants Second Appeal filed under Section 100 of Civil Procedure Code against the Judgement and Decree dated 11.4.1997 made in A.S.No.21 of 1997 on the file of the Additional District Judge's Court, Nagapattinam, by reversing the Judgement and Decree dated 28.2.1996 made in O.S.No.94 of 1991 on the file of the Additional Subordinate Judge's Court, Nagapattinam. For Appellants ... Ms. A. Sathiya Bama for Mr. T.R.Raja Raman For Respondents ... Mr.K.Srinath Sridevan https://hcservices.ecourts.gov.in/hcservices/ J U D G E M E N T The plaintiffs in O.S.No.94 of 1991 on the file of the Additional Subordinate Court, Nagpattinam are the appellants. 2. The plaintiffs filed the suit for partition claiming half share or in the alternative 1/3rd share in the suit properties. The case of the plaintiffs was that the properties originally belonged to Vethaiya Nadar, great grand father of the plaintiffs 2 to 4 and the father-in-law of the 1st plaintiff. The said Vethaiya Nadar had two wives by name Rajammal and Janakiammal and he died in the year 1951 intestate leaving behind his two widows and a son and another daughter through the 2nd wife Janakiammal and two daughters through the 1st wife Rajammal. Under a registered partition deed dated 26.9.1958 the two daughters and their children divided the properties and Rajammal and her two daughters Govindammal and Jegathambal formed one part and Janakiammal and her son and her daughter formed another part and under the said partition, 1.28 ½ acres was allotted to the share of Rajammal and her two daughters and other properties were allotted to the share of Janakiammal and her children. The 1st plaintiff is the husband of Govindammal and the plaintiffs 2 to 4 are the children of Govindammal and the 1st defendant is Jagadambal, 2nd defendant is her husband and the defendants 3 to 6 are their children. The plaintiffs therefore filed the suit for partition stating that under the partition deed dated 26.9.1958, Rajammal, Govindammal and Jegdambal got 1/3rd share each in the properties and after the death of Rajammal her 1/3rd share was devolved upon her daughters and therefore her daughters Govindammal and Jegadambal are entitled to half share each. During the life time of Rajammal she executed a settlement deed dated 12.12.1973 settling 1.28 ½ acres in favour of Jegadambal and her children and on 12.5.1982 she executed another settlement deed settling 43 cents in favour of her daughter Jegadambal. According to the plaintiffs, Jegadambal had no power to settle the entire properties and even assuming that she is entitled to settle her share, the plaintiffs are entitled to 1/3rd share in the properties. 3. The defendants contended that as per the partition deed the daughters of Rajammal did not get any right over the suit properties and they were mentioned only as eonominee parties as they have no right over the properties and the properties were enjoyed by Rajammal and as an absolute owner Rajammal executed settlement deed in favour of Jegadambal and her daughter under https://hcservices.ecourts.gov.in/hcservices/ Ex.A2 in the year 1973 and thereafter under Ex.A4 in the year 1982 settled 43 cents of properties in favour of Jegadambal and the sons of Jegadambal namely the defendants 3 to 5 have also put up construction in the suit properties and they are enjoying the same and they have also prescribed title by ouster and hence, the plaintiffs are not entitled to any share in the properties. 4. The trial Court partly decreed the suit holding that the plaintiffs are entitled to 1/3rd share excluding the three houses constructed by the defendants 3 to 5. Against the Judgement and Decree, the defendants filed the appeal regarding 1/3rd share allotted to the plaintiffs and the plaintiffs filed Cross Appeal against the exclusion of three houses and the first appellate Court allowed the appeal filed by the defendants and dismissed the Cross Appeal filed by the plaintiffs. Hence, this Second Appeal. 5. The following substantial questions of law were framed at the time of admission of this Second Appeal by this Court: (1) Whether the learned Additional District Judge was right in construing Ex.A1 as not conferring any right on Govindammal, when the document specifically grants a right in her favour ? (2) Whether the learned Additional District Judge was right in rejecting the plaintiffs claim on the ground of adverse possession when the defendants had not proved ouster as required by law ? 6. It is submitted by the learned counsel for the appellants that under Ex.A1 Rajammal and her two daughters were given 1.28 ½ acres of properties and therefore as per Ex.A1 Govindammal has got 1/3rd share in the properties and Rajammal had only 1/3rd share and she cannot settle the entire properties in favour of the defendants and therefore the findings of the lower appellate Court that the appellants are not entitled to any share in the properties is to be set aside. The learned counsel for the appellants further submitted that the partition deed is to be construed as a family arrangement and in the case of family arrangement the parties need not have any pre-existing rights over the suit properties and therefore even though the daughter Govindammal had no right over the suit properties she was also given 1/3rd share and hence under Ex.A1 Govindammal got 1/3rd share in the property which devolved on the appellants and therefore they are entitled to partition of 1/3rd share in the suit properties. 7. The learned counsel for the appellants relied upon the Judgement of Hon'ble Supreme Court reported in 1999 (I) CTC 256 https://hcservices.ecourts.gov.in/hcservices/ (Lakshmi Ammal and others v. Chakravahthi and others) in support of her contention. The learned counsel for the appellants further relied upon the Judgement reported in AIR 1990 Kerala 226 (Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others) for the proposition that the respondents are estopped from resiling from family arrangement and they are bound by the family arrangement. 8. On the other hand Mr. Srinath Sridevan the learned counsel for the respondents submitted that there is no pleading regarding the family arrangement either in the plaint or in the evidence and only for the first time the case of family arrangement is projected in the Second Appeal. Mr Srinath Sridevan the learned counsel for the respondents further submitted that when Vethaiya Nadar died in the year 1951, the two widows Rajammal and Janakiammal inherited a limited estate as per the provisions of Hindu Womens Right to Property Act 1937. Admittedly a son by name Dharmaiyan was born through the 2nd wife and two widows would have inherited the limited estate of only half share in the estate of Vethaiya Nadar. The learned counsel for the respondents further submitted that in a partition the parties must have pre-existing rights over the properties and admittedly the daughters of Rajammal did not have any right over the properties during the life time of Rajammal and therefore in the partition they cannot be given any share and only for the purpose of convenience the daughters name were included along with the mother of Rajammal and therefore even though the daughters were also stated to take the property along with their mother as per Ex.A1, the mother Rajammal was the sole beneficiary under the partition deed and she got half share in the property as a widow of Vethaiya Nadar and the other half share was taken by Janakiammal and after the Hindu Succession Act came into force the limited estate of Rajammal became the absolute the estate and she became the absolute owner of the property and therefore the daughters will not claim any share in the properties and admittedly Rajammal executed the settlement deed Ex.A2 settling the suit properties in favour of the defendants/ respondents and hence, the plaintiffs/ appellants are not entitled to any relief. 9. Mr. Srinath Sridevan, the learned counsel for the respondents further submitted that under Ex.A2 the entire property was settled in favour of the respondents/ defendants and ever since the same the respondents/ defendants were enjoying the properties as their own and to the exclusion of the appellants/ plaintiffs and Ex.B4 to B16 would also prove the same and therefore the https://hcservices.ecourts.gov.in/hcservices/ respondents proved ouster and also prescribed title over the properties and considering the same the trial Court has rejected the case of the plaintiffs in respect of three houses and therefore the appellants are entitled to the relief prayed for. 10. Mr. Srinath Sridevan, the learned counsel for the respondents relied upon the Judgement reported in the Indian Law Reports 1964 Madras 502 (A. Natesan, Kallidaikurichi v. Commissioner of Income Tax, Madras) for the proposition that a separate property of a co-parcener cannot be fragmented into shares and disposed of by allotment to sharers under the guise of partition without the element of Transfer of Property Act. He also relied upon the Judgement reported in 1998 (I) CTC 314 (N.Rajammal (Died) and another v. P.Maragathammal and 28 others) for the proposition that a person to get under a partition deed he must have the pre-existing rights and admittedly, the daughters Govindammal and Jegadambal did not have any pre-existing rights over the properties and hence the inclusion of their names in Ex.A2 will not confer any right over them in respect of the suit properties. 11. Heard both sides counsel. 12. It is not in dispute that the properties was owned by Vethaiya Nadar and he had two widows Rajammal and Janakiammal and through the senior widow Rajammal he had two daughters Govindammal and Jegadambal. The dispute is between the legal heirs of Govindammal on the one side and Jegadambal, her husband and her children on the other side. The plaintiffs are the husband and children of Govindammal. When Vethaiya Nadar died in the year 1951, the widows got limited estate in the properties and their limited estate became absolute after coming into force of the Hindu Succession Act 1956. Though Vethaiya Nadar had a son through Janakiammal it was not contended by both parties that Dharmaiyan became entitled to half share and other half share was inherited by two widows. Therefore, the only question to be decided is what is the effect of partition deed Ex.A1 executed between Rajammal and her two daughters on the one hand and Janakiammal and her children on the other hand. If under Ex.A1 partition deed Rajammal alone became the absolute owner and her two daughters Govindammal and Jegadambal did not get any share, the defendants are not entitled to any relief as prayed for. On the other hand, if under the partition deed Ex.A1, the 'A' schedule property mentioned therein was taken by Rajammal and her two daughters equally then Govindammal is entitled to 1/3rd share in the properties. It is https://hcservices.ecourts.gov.in/hcservices/ not in dispute that at the time of partition Govindammal and Jegadambal had no right over the properties. Ex.A1 was executed in the year 1958 and at that time Rajammal and Janakiammal became the absolute owner of the properties. Therefore, there is no need to mention the names of the daughters along with Rajammal in Ex.A1 partition deed. A reading of Ex.A1 would also make it clear that both the widows are living separately and they were enjoying the properties in common and therefore they have decided to partition the properties and executed the deed of partition. It is also stated in Ex.A1 that the daughters of Rajammal namely Govindammal and Jegadambal were married and they were living with their husband. Nevertheless, in the partition deed the property mentioned in 'A' schedule was allotted to be Rajammal, Govindammal and Janakiammal. It is also further stated in the body of the 'A' schedule property is allotted to the share of Rajammal, Govindammal and Jegadambal. Therefore, even though Govindamal and Jegadambal did not have any right over the suit properties, the mother wanted to confer the right on them and included them as parties to the document and allotted the properties to all of them to be enjoyed in common. Therefore, a reading of Ex.A1, in my opinion, will only indicate that Rajammal and her two daughters Govindammal and Jegadambal were allotted 'A' schedule property and each one of them got 1/3rd share in the properties. In the Judgement reported in 1998 (I) CTC 314 (N.Rajammal (Died) and another v. P.Maragathammal and 28 others), the effect of partition between the father and four daughters were considered in the light of the provisions of Tamil Nadu Land Reforms Act. In that case, the father was the owner of the entire properties and with a view to escape from the provision of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 1961, he entered into a partition with his four daughters. In that case it was held that when the daughters have no right in the properties, the properties given to the daughters under the partition deed must be treated as a gift. It was held that though the nomenclature is stated to be a partition, it is really a gift by the father in favour of his daughters and they obtained absolute right over the properties allotted to them. Further, in the same Judgement, the Judgement of the Hon'ble Supreme Court reported in AIR 1976 S.C. 807 (Kale and others v. Deputy Director of Consolidation and others) was considered and the Hon'ble Supreme Court held that even if one of the parties to the settlement has no title but under the arrangement a title is created in favour of such a person, then the antecedent title must be assumed and the family arrangement will be upheld. As stated supra, in this case the daughters Govindammal and Jegadambal did not have any right over the properties and in the partition deed Ex.A1 they were made https://hcservices.ecourts.gov.in/hcservices/ as parties and properties were allotted to them along with their mother. Therefore, though the document was claimed as a partition they must be treated as a family arrangement and as held by the Hon'ble Supreme Court in the Judgement reported in 1999 (I) CTC 256 (Lakshmi Ammal and others v. Chakravahthi and others) such document can only be treated as a family arrangement and under the said document Ex.A1 the daughters got 1/3rd share along with their mother. Though in the plaint it was not pleaded by the appellants/ plaintiffs that the document must be construed as a family arrangement, having regard to the law prevailing at the time of execution of the document and having regard to the recitals in the document, I am of the opinion that Ex.A1 has to be construed as a family arrangement under which Govindammal got 1/3rd share and Jegadambal got another 1/3rd share. Hence, the first substantial question of law is answered in favour of the appellants. 13. The lower appellate Court held that under Ex.A1 Rajammal became the absolute owner of the properties and she settled the properties in favour of Jegadambal and her children and therefore the plaintiffs are not entitled to any share. As stated supra, under Ex.A1 Rajammal, Govindammal and Jegadambal each got 1/3rd share and Rajammal did not get absolute right over the properties. Though after coming into force of Hindu Succession Act 1956, she became the absolute owner of the properties, by virtue of Ex.A1 she relinquished her absolute right and agreed to take the properties along with their two daughters and therefore Govindammal got 1/3rd share. 14. As per Ex.A2 Rajammal settled the entire properties in favour of Jegadambal and her children. Under Ex.A4 she settled 43 cents which is equivalent to 1/3rd share in favour of Jegadambal. Therefore, the conduct of Rajammal in executing Ex.A4 settling her 1/3rd share in the properties would also confirm the finding that she was also conscious of the fact that under Ex.A1 she got only 1/3rd share and that was given under Ex.A4. Once Rajammal got only 1/3rd share in the properties she is entitled to settle the properties in respect of her 1/3rd share and that has been validly done under Ex.A4. Though under Ex.A2 she settled the entire properties, as she is the owner of 1/3rd share the settlement in respect of the entire property cannot be upheld. The plea of ouster or adverse possession cannot be accepted as the respondents/ defendants are claiming the ownership over the properties and they cannot prescribe title in respect of the properties for which they also claimed title. Hence, the second substantial question of law is also answered in favour of the appellants. https://hcservices.ecourts.gov.in/hcservices/ 15. In the result, the Judgement and Decree of the first appellate Court are set aside and the Second Appeal is allowed holding that the appellants/ plaintiffs are entitled to 1/3rd share in the properties. No costs. Consequently, the connected C.M.P.No.8539 of 1997 is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kr. To 1. The Additional Subordinate Judge, Additional Subordinate Court, Nagapattinam. 2. The Additional District Judge, Additional District Court, Nagapattinam. S.A.No. 878 of 1997 and C.M.P.No.8539 of 1997 BS (CO) kk 6/5 https://hcservices.ecourts.gov.in/hcservices/