The entire judgment for the best understanding of members
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 14.06.2010
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
A.S.Nos.676 and 857 of 2002
A.S.No.676 of 2002
Mrs.Parameswari @ Gnanasakthi ... Appellant
Vs.
1.Raja Ratinam
2.Bala Ganesan
3.Mrs.Santhi w/o.Mr.Ganesan ... Respondents
Appeal filed under section 96 of the Civil Procedure Code against the Judgment and Decree of the Additional District Judge, Chidambaram dated 16.04.2002 made in O.S.No.9/2002.
For Appellant : Mr.Gopinath
for Mr.C.Chandrabose
For Respondents : Mr.A.P.Surya Prakasam (for R1)
Mr.Srinath Sridevan (for R3)
A.S.No.857 of 2002
Raja Ratinam ... Appellant
Vs.
1.Mrs.Parameswari @ Gnana Sakthi
2.Bala Ganesan
3.Mrs.Santhi w/o.Mr.Ganesan ... Respondents
Appeal filed under section 96 of the Civil Procedure Code against the Judgment and Decree of the Additional District Judge, Chidambaram dated 16.04.2002 made in O.S.No.9/2002.
For Appellant : Mr.A.P.Suryaprakasam
For Respondents :
J U D G M E N T
The plaintiff in O.S.No.9/1992 on the file of the Additional District Judge (FTC) Chidambaram has come forward with A.S.No.676/2002 as against the disallowed portion of her claim made in the plaint. The first defendant therein has filed A.S.No.857/2002 against the preliminary decree for partition passed by the trial court in the above said suit. Therefore, for the sake of convenience, the parties are referred to in accordance with their rankings in the suit.
2. Parameswari @ Gnanasakthi, the plaintiff filed the original suit raising the following contentions:-
Suit 'A' schedule property originally belonged to Kalyanasabesa Deekshidhar. As he died on 20.10.1995 without leaving any Will, his daughter, namely the plaintiff and his son, namely the second defendant (Bala Ganesan) became entitled to the suit 'A' schedule property as the legal heirs of Kalyanasabesa Deekshidhar, each one being entitled to 1/2 share. The first defendant Raja Rathinam is the brother of Kalyanasabesa Deekshidhar. One Sivakami is a tenant in respect of suit 'A' schedule property and hence no relief is sought against her. There was no cordial relationship between Kalyanasabesa Deekshidhar and his son Bala Ganesan. Therefore, Kalayanasabesa Deekshidhar was looked after by his brother, namely the first defendant Raja Rathinam. As Kalayanasabesa Deekshidar was the hereditary trustee of Sri Sabanayagar temple, Chidambaram, he was having kattalaidhars during his life time. As the trustee of the Sri Sabanayagar temple he earned the movables like jewels, silver vessels which are described as suit 'B' schedule properties. After the death of Kalayanasabesa Deekshidhar, taking advantage of the fact that the plaintiff was residing elsewhere, the second defendant secreted all the movables of his father Kalayanasabesa Deekshidhar and the properties described in plaint 'B' schedule are in his custody. The right Kalayanasabesa Deekshidhar to perform kattalais and receive of remuneration for the same from the kattalaidhars is a heritable right. The plaintiff and the second defendant are having equal shares in the right to perform kattalais. Such a right of the plaintiff has been declared in O.S.No.280/1994 on the file of District Munsif, Chidambaram. The said kattalai is described as plaint 'C' schedule property. Thus the plaintiff is entitled to a common 1/2 share in all the suit properties described in A, B and C schedule to the plaint. The demand made for partition and separate possession of the plaintiff's share in the suit properties by issuing a notice dated 26.05.1997 evoked a reply notice containing false allegations. Therefore, the plaintiff has to approach the court for the relief of partition of her half share in the properties described as A, B and C schedule in the plaint:-
3. Raja Rathinam, the first defendant contested the suit by filing a written statement containing the following allegations.
The plaintiff's suit is liable to be dismissed, as not maintainable. It is true that the first defendant is the brother of Late Kalyanasabesa Deekshidhar. But, it is not correct to state that the suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar, which devolved upon the plaintiff and the 2nd defendant as his legal heirs on the death of Kalyanasabesa Deekshidhar. On the other hand, suit 'A' schedule property was the joint family property of Kalyanasabesa Deekshidar and his brothers Thiyagaraja Deekshidhar and Rajarathina Deeksh*thar(D1). As there arose a dispute between the brothers, a suit was filed on the file of District Munsif Court as O.S.No.332/1957 by Kalayanasabesa Deekshidhar for partition claiming 1/3 share in the suit 'A' schedule property. A preliminary decree was passed and when the matter was pending for passing final decree in I.A.No.211/1960, a settlement was arrived at before the panchayatdars, pursuant to which it was agreed that Thiyagaraja Deekshidhar, the other brother of Kalyanasabesa Deekshidhar should be paid the value of his share. Kalyanasabesa Deekshidhar wanted the first defendant also to consent for receiving the value of his share as one of the terms of the compromise. However, it was promised by Kalyanasabesa Deekshidar that after the value of the share of Thiyagaraja Deekshidhar would be paid, Kalyanasabesa Deekshidar and the first defendant would continue to enjoy the property jointly as before. Furthermore, though Thiyagaraja Deekshidhar was paid for his 1/3 share, the first defendant was not paid any amount for his share and thus he continued to be the owner of his 1/3 share of suit 'A' schedule property. The first defendant continued to be in joint possession of the suit property even after a compromise was worked out in O.S.No.332/1957 and still the first defendant is residing in the suit 'A' schedule property with his family. Thus, Kalyanasabesa Deekshidhar was entitled to 2/3 share alone (his share 1/3 and the share of Thiyagaraja Deekshidhar 1/3) and the share of the first defendant was kept in tact. The first defendant claims no interest in the properties described as 'B' and 'C' schedule properties. The first defendant being a co-owner entitled to 1/3 share in the suit 'A' schedule property is also entitled to the right of pre-empting. He has decided to purchase the shares of other share, if they choose to sell. As the second defendant has executed a sale deed in favour of the third defendant, the first defendant is entitled to purchase the same in exercise of his right of pre-emption. He is prepared to pay the value of the share of the second defendant as recited in the sale deed executed by him in favour of the third defendant. In any event, the first defendant is entitled to claim his 1/3 share to be allotted separately to him in the event of relief of partition being granted.
4. The second defendant filed a written statement containing allegations, the summary of which is given as under:-
It is incorrect to state that the plaintiff and the second defendant are entitled to equal moieties in suit 'A' schedule property. As per the final decree dated 14.04.1960 passed in O.S.No.332/1957 on the file of the District Munsif, Chidambaram, the suit 'A' schedule property became the property of Kalyanasabesa Deekshidhar to the exclusion of his brother. As such, the suit 'A' schedule property was a property belonging to the joint family consisting of Kalyanasabesa Deekshidhar and his son/second defendant, each one entitled to 1/2 share as coparceners. On the death of Kalyanasabesa Deekshidhar intestate, his 1/2 share equally devolved upon the plaintiff and the second defendant. Thus the plaintiff is entitled to 1/4 share alone in suit 'A' schedule property. There is no property as described in plaint 'B' schedule. The kattalais described in 'C' schedule are not available for partition. In addition to that, the plaintiff being a woman, cannot perform the kattalais. As there was no cordial relationship between the second defendant and his father Kalyanasabesa Deekshidhar, the plaintiff took away the golden articles and silver vessels worth Rs.2,00,000/- from her father. In order to blackmail the second defendant and to pre-empt him from taking steps to claim his share in the golden articles and silver vessels of Kalyanasabesa Deekshidhar, which the plaintiff had taken, she has chosen to file the vexatious suit. A portion of the suit 'A' schedule property has been leased out by the second defendant to a tenant, by name Chandrasekaran. Further, on 06.09.1999, the second defendant has sold suit 'A' schedule property to the third defendant.
5. The third defendant has filed a written statement containing allegations similar to those that are found in the written statement of the second defendant. The third defendant has also claimed that she purchased 3/4 share of the second defendant in suit 'A' schedule property and has prayed for a decree for partition and separate possession of her 3/4 share in the suit 'A' schedule property.
6. The following were the issues framed by the trial court based on the above said pleadings:-
i)Whether the first defendant is entitled to 1/3 share in 'A' schedule properties as per O.S.No.332/1957?
ii)Whether the 'B' and 'C' schedule properties are presently available for partition?
iii)Whether the plaintiff is entitled to half share in 'A' schedule property?
iv)Whether the plaintiff is entitled to the relief sought for by him?
v)To what other relief the plaintiff is entitled?
7. Two witnesses were examined as P.W.1 and P.W.2 and seven documents were marked as Exs.A1 to A7 on the side of the plaintiff. Three witnesses were examined as D.Ws.1 to 3 and thirty one documents were marked as Exs.B1 to B31 on the side of the defendants. The report of the Advocate-Commissioner appointed by the trial court has been marked as Ex.C1. The trial court considered the pleadings and evidence in the light of the arguments advanced on either side and upon such a consideration, decreed the suit in part passed a preliminary decree for partition in respect of suit 'A' schedule property holding that the plaintiff is entitled to 1/4 share alone in it and dismissed the suit regarding the other properties described in plaint schedule 'B' and 'C'.
8. Aggrieved by the same, the plaintiff has come forward with A.S.No.676/2002 against the disallowed portion of her claim on various grounds set out in the memorandum of grounds of appeal. Similarly, the first defendant has come forward with A.S.No.857/2002 challenging the preliminary decree for partition passed in respect of suit 'A' schedule property holding him not entitled to any share in it.
9. The points that have arisen for consideration in these appeals are as follows:-
1.Whether the suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar, as claimed by the plaintiff or the joint family property of Kalyanasabesa Deekshidhar and the second respondent/second defendant as claimed by the defendants 2 and 3?
2.Whether the first defendant is having any share in the suit 'A' schedule property?
3.Whether the plaintiff's share in suit 'A' schedule property is half as claimed by the plaintiff and not 1/4 as contended by the defendants 2 and 3?
4.Whether the plaintiff is entitled to the relief of partition in respect of suit 'A' schedule property?
5.Whether the plaintiff is entitled to a decree for partition in respect of the articles described in plaint 'B' schedule?
6.Whether the plaintiff is entitled to a decree for partition in respect of the kattalais described in plaint 'C' schedule?
10. The arguments advanced by Mr.Gopinath, learned counsel representing Mr.C.Chandrabose, learned counsel for the appellant in A.S.No.676/2002, by Mr.A.P.Suryaprakasam, learned counsel for the first respondent and by Mr.Srinath Sridevan, learned counsel representing the third respondent were heard. The entire materials available on record including the judgment and decree of the trial court were perused.
11. The plaintiff has claimed partition of properties described in three schedules annexed to the plaint. 'A' schedule is shown to be an immovable property, the existence of which is not in dispute. 20 sovereigns of gold jewels, 8 kilos of silver articles, Rs.50,000/- cash deposits in bank, Rs.2,00,000/- in cash and brass and ever-silver vessels worth Rs.26,000/- have been shown to be the 'B' schedule property. Kattalais in Sri Sabanayagar temple, Chidambaram valued at Rs.30,000/- is described to be plaint 'C' schedule property. The trial court has granted a preliminary decree for partition of the plaint 'A' schedule property alone and dismissed the suit in respect of plaint 'B' schedule and 'C' schedule properties. Even in respect of plaint 'A' schedule property, the plaintiff's claim that she is entitled to 1/2 share has been negatived by the trial court and she has been held to be entitled to 1/4 share alone. As against the reduction of the share in respect of suit 'A' schedule property and as against the dismissal of the suit in respect of suit 'B' and 'C' schedule properties, the plaintiff has filed A.S.No.676/2002. The second defendant claims that he is entitled to 1/3 share in the suit 'A' schedule property. The said claim has been rejected by the trial court. Therefore, the first defendant has come forward with A.S.No.857/2002.
12. Let us, at the first instance, consider the claims of the plaintiff, first defendant and the second defendant in respect of the suit 'A' schedule property before ever going to the question of the claims of the plaintiff and the second defendant in respect of the properties described in other two schedules.
Points 1 to 4:-
13. A tiled house with brick walls bearing door No.70, East Car street in Ward No.5, Block No.2, Chidambaram Town, comprised in T.S.No.120 having a total area of 3668 sq.ft. land is the suit 'A' schedule property. Claiming that the suit property was the absolute property of her father Kalyanasabesa Deekshidhar, the plaintiff has claimed 1/2 share in it, as the plaintiff and the second defendant had become legal heirs of Kalyanasabesa Deekshidhar. The above said contention of the plaintiff has been refuted not only by the second defendant but also by the first defendant, who is none other than the brother of late Kalyanasabesa Deekshidhar. Admittedly, suit 'A' schedule property was not the property purchased by Kalyanasabesa Deekshidhar. On the other hand, the plaintiff's husband who was examined as P.W.1, has admitted that the suit 'A' schedule property originally belonged to three brothers Thyagaraja Deekshidhar, Kalyanasabesa Deekshidhar and Raja Rathinam Deekshidhar (first defendant), all sons of Chakravarthy Deekshidhar, as their ancestral property. Before 1957, Chakravarthi Deekshidhar died leaving his three sons. In 1957, Kalyanasabesa Deekshidhar filed a suit on the file of the District Munsif Court, Chidambaram as O.S.No.332/1957 against his two brothers, namely Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar for partition of his 1/3 share in the suit 'A' schedule property. In the said suit, Thyagaraja Deekshidhar alone entered appearance and a preliminary decree was passed directing division of the property into three equal shares and allotment of one such share to Kalyanasabesa Deekshidhar. The said preliminary decree was passed on 13.03.1958. Ex.B7 is the certified copy of the said preliminary decree. Subsequently, Kalyanasabesa Deekshidhar filed final decree application in I.A.No.29/1960 in O.S.No.332/1957 on the file of District Munsif Court, Chidambaram for getting a final decree. In the said final decree application, both Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar entered appearance in person and filed a joint memo along with Kalyanasabesa Deekshidhar agreeing for getting a sum of Rs.4008.33P each in lieu of their shares in suit 'A' schedule property. Based on the said compromise memo a final decree was passed on 14.04.1960 allotting the entire 'A' schedule property to Kalyanasabesa Deekshidhar and directing payment of ovalty at a sum of Rs.4008.33P each to Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar. The plaintiff has admitted that the property came to her father in the partition suit filed by him, namely O.S.No.332/1957 on the file of the District Munsif Court, Chidambaram. However, she would claim that in view of the division effected between Kalyanasabesa Deekshidhar and his brothers, the suit 'A' schedule property allotted to Kalyanasabesa Deekshidhar became his absolute property and hence the plaintiff, on the death of Kalyanasabesa Deekshidhar, became entitled to 1/2 share in it.
14. On the other hand, the first defendant has contended that though he also agreed for receiving a sum of Rs.4008.33P in lieu of his share in suit 'A' schedule property, it was promised by Kalayanasabesa Deekshidhar that, after getting rid of Thyagaraja Deekshidhar by making payment of the value of his share, both of them would continue to jointly hold the property; that pursuant to such promise only the amount stipulated in the compromise as payable to the first defendant was not paid to him and that Kalyanasabesa Deekshidhar and the first defendant continued to jointly enjoy the suit 'A' schedule property. At the same time, he does not claim that the share of Thyagaraja Deekshidhar for which the value was paid under the final decree passed in O.S.No.332/1957 also became a common property of himself and his other brother Kalyanasabesa Deekshidhar and thus each one of them had become entitled to half share. On the other hand, it is his contention that his 1/3 share did not get enlarged and Kalyanasabesa Deekshidhar became entitled to 2/3 share (1/3 as coparcener and the other 1/3 having been obtained from Thyagaraja Deekshidhar). The first defendant claims absence of disruption of joint family between himself and his brother Kalyanasabesa Deekshidhar. Then it is surprising that the first defendant has conceded that Kalyanasabesa Deekshidhar had become entitled to the 1/3 share of Thyagaraja Deekshidhar to the exclusion of the first defendant, simply because he had paid the value of the share of Thyagaraja Deekshidhar. Moreover, it is the contention of the first defendant as D.W.1 that the amount that was paid to Thyagaraja Deekshidhar was raised by joint borrowing made by the first defendant and Kalyanasabesa Deekshidhar under a promissory note and the said loan was subsequently discharged by them jointly. If such a contention of the first defendant is true, he would have naturally made a claim that he and his brother Kalyanasabesa Deekshidhar became entitled to equal moieties in suit 'A' schedule property and would not have chosen to be content with claiming 1/3 share alone.
15. Furthermore, Ex.B28-final decree makes it clear that the entire plaint 'A' schedule property was allotted to the share of Kalyanasabesa Deekshidhar and that Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar (first defendant) would get a sum of Rs.4008.33P each from Kalyanasabesa Deekshidhar, which amount was to be paid within three months from the date of final decree and in case of default, the amount was to be paid along with an additional sum of Rs.100/- and that Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar could recover the said sum from Kalyanasabesa Deekshidhar for which they would have a charge over the said property. It has also been stated in the final decree that within one month from the date of payment of the said amount, Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar should vacate the entire house and deliver it to Kalyanasabesa Deekshidhar and in default of delivery of possession, Kalyanasabesa Deekshidhar could take possession through court with cost. A reading of the said final decree will show that no power was given either to Thyagaraja Deekshidhar or Raja Rathinam Deekshidhar (first defendant) to revoke the settlement incorporated in the final decree on the ground of non-payment of the amount directed to be paid as ovalty and that they had been given only a right to have a charge over the property for the recovery of the amount. As against the said clear and unambiguous terms, the first defendant seems to have taken a novel stand that they wanted to get rid of Thyagaraja Deekshidhar by paying the value of his share and thereafter to keep the property as joint property of Kalyanasabesa Deekshidhar and Raja Rathinam Deekshidhar (first defendant).
16. Per contra, it is the case of the plaintiff that the terms of the final decree was fully complied with and the first defendant was paid the entire amount directed to be paid to him under Ex.B28-final decree and that he had issued a receipt acknowledging the payment of the said amount to him. It is the further case of the plaintiff that subsequently, Raja Rathinam Deekshidhar (first defendant) being the brother of Kalyanasabesa Deekshidhar and a person helping Kalyanasabesa Deekshidhar, who had lost his wife, was allowed to reside in the suit 'A' schedule property along with Kalyanasabesa Deekshidhar and that hence, he was residing in the said house by virtue of such permission granted and not by virtue of any right of his own. In this regard, P.W.1, husband of the plaintiff, has given clear evidence to the effect that the first defendant was permitted by Kalyanasabesa Deekshidhar to reside with him in the suit 'A' schedule property, as he was helping Kalyanasabesa Deekshidhar and that he resided there by virtue of such permission alone.
17. The second defendant, being the son of Kalyanasabesa Deekshidhar has supported the case of the plaintiff in this regard and contended that the first defendant did not have any right in the suit 'A' schedule property after the passing of the final decree under Ex.B28. Except the interested testimony of the first defendant, who deposed as D.W.1, there is no other document to show that he remained a co-owner along with Kalyanasabesa Deekshidhar even after the division made under Ex.B28-final decree or that the amount directed to be paid to him in the said final decree was not paid. On the other hand, there is the clear testimony of the second defendant, who deposed as D.W.2, to the effect that the amount directed to be paid to the first defendant under Ex.B28 was paid and the same was acknowledged by the first defendant by issuing a receipt for the same. The said testimony of D.W.2 has been corroborated by D.W.3, the husband of the third defendant.
18. Admittedly, the amount payable under Ex.B28-final decree to Thyagaraja Deekshidhar was borrowed from one Nataraja Deekshidhar. It is the contention of the first defendant that the said amount was borrowed by himself and Kalyanasabesa Deekshidhar jointly by executing a promissory note in favour of the creditor and the said amount borrowed was subsequently repaid and the debt was discharged jointly by himself and Kalyanasabesa Deekshidhar. The said contention of the first defendant is falsified not only by the clear and cogent testimonies of D.Ws.2 and 3, but also by the contents of Ex.B7. Admittedly, Ex.B7 is the promissory note under which a sum of Rs.4,000/- was borrowed for making payment to Thyagaraja Deekshidhar as per the terms of Ex.B28-final decree. It is quite obvious from Ex.B7 that the amount was borrowed and the promissory note was executed by Kalyanasabesa Deekshidhar alone and not jointly by the first defendant and Kalyanasabesa Deekshidhar. It should also been noticed that in all the first four endorsements made on the promissory note are for the purpose of limitation and for evidencing part payments, were made by Kalyanasabesa Deekshidhar alone. The fifth endorsement evidencing discharge of entire promissory note debt, was made by Nataraja Deekshidhar. It is noticed from Ex.B7-promissory note that though the first defendant has also signed the promissory note, his signature is appended by an explanatory note by himself as a witness "rhl;rp". It is quite obvious from the contents of Ex.B7 and the endorsements contained therein that the amount needed for making payment to Thyagaraja Deekshidhar was borrowed by Kalyanasabesa Deekshidhar alone and Kalyanasabesa Deekshidhar alone repaid it to the creditor Nataraja Deekshidhar.
19. Ex.B6 is the receipt issued by the first defendant acknowledging the receipt of a sum of Rs.4008.33P in accordance with the final decree dated 14.04.1960 made in I.A.No.211/60 in O.S.No.332/1957 on the file of the District Munsif, Chidambaram. The first defendant, while deposing as D.W.1 has candidly admitted that a compromise final decree was passed in the previous suit filed by Kalyanasabesa Deekshidhar for partition, in which the value of the share of each one of the three brothers was fixed at Rs.4008.33P; that it was also agreed that a sum of Rs.4008.33P should be paid to him as the value of his share and that in terms of the compromise, the final decree was passed. However, he would say that the amount stipulated in the final decree was not paid to him even though the amount payable to Thyagaraja Deekshidhar was paid. It is his contention that the amount was not paid to him since he did not want money and wanted to continue to reside in the same house and that the same was accepted by Kalyanasabesa Deekshidhar. The said part of evidence of D.W.1 becomes unbelievable and improbable in the light of the fact that his signature found in Ex.B6 has been admitted by him. He admitted that the signature found in Ex.B6 - receipt dated 07.07.1965 was his. Under what circumstances and for what purpose he put his signature in Ex.B6 has not been explained. It is not his case that his signature was obtained in blank stamp papers and that the same was later on created as Ex.B6. He would simply state that he does not remember the circumstances under which he subscribed his signature in Ex.B6.
20. On the other hand, clear evidence has been adduced on the side of the third defendant, which has also been supported by the plaintiff, to the effect that the amount directed to be paid to the first defendant under Ex.B28 - final decree was paid and the same was acknowledged by the first defendant under Ex.B6. Therefore, this court comes to the conclusion that the first defendant had lost whatever right he did have in the suit 'A' schedule property on the receipt of the amount stipulated in Ex.B28-final decree which is acknowledged under Ex.B6-receipt; that thereafter he had been permitted by Kalyanasabesa Deekshidhar to be in the suit property along with him and that the enjoyment of the property by the first defendant jointly with Kalyanasabesa Deekshidhar, was only permissive and not in exercise of his right. The learned trial judge, upon properly appreciating the evidence adduced on both sides in this regard, has arrived at a correct conclusion and hence there is no scope, whatsoever to interfere with the same and on the other hand, the said finding of the trial court deserves to be confirmed.
21. The first defendant besides claiming to be a joint owner along with Kalyanasabesa Deekshidhar entitled to 1/3 share, has also taken a novel stand that he is entitled to 1/3 share in suit 'A' schedule property, as he has acquired title by adverse possesion by residing in the said property continuously even after the date of final decree passed in the previous suit, namely O.S.No.332/1957 on the file of the District Munsif Court, Chidambaram. It is not the case of the first defendant that he was in exclusive possession of suit 'A' schedule property and Kalyanasabesa Deekshidhar was excluded from enjoying the suit property during his life time. The suit was filed in the year 1999, within five years after the death of Kalyanasabesa Deekshidhar. The fact that Kalyanasabesa Deekshidhar died intestate on 20.10.1995 has been admitted. Therefore, till the death of Kalyanasabesa Deekshidhar, the fact that first defendant was allowed to reside with him in the suit 'A' schedule property would not show that the first defendant was in adverse possession of the suit 'A' schedule property, against the real owner Kalyanasabesa Deekshidhar. As pointed out supra, the first defendant was allowed by Kalyanasabesa Deekshidhar to reside with him in the suit property and the possession of, if any, of the first defendant, would be only permissive. It should also be noticed that the possession of the first defendant was not claimed to be exclusive. Under such circumstances, there is no basis for the claim made by the first defendant that he has perfected title to the suit 'A' schedule property by adverse possession. Moreover, the first defendant has claimed an undivided 1/3 share in the suit 'A' schedule property. A person claiming only an undivided share in the property, cannot, at the same time, contend that he had perfected title by adverse possession in respect of the said undivided share belonging to him. Therefore, the claim of the first defendant for adverse possession cannot be sustained. On similar reasoning, the court below has rightly negatived the above said contention of the first defendant. The same does not require any interference and on the other hand, deserves to be confirmed. In the foregoing paragraphs, it has been held that the first defendant does not have any right or share in the suit 'A' schedule property and that his possession of a portion of the same was only permissive. It has also been decided supra, that his claim of adverse possession in respect of 1/3 share is also unsustainable. In line with the finding recorded above, this court comes to the conclusion that after the final decree was passed in O.S.No.332/1957 on the file of the District Munsif Court, Chidambaram, Late Kalyanasabesa Deekshidhar became entitled to the suit 'A' schedule property in its entirety to the exclusion of the first defendant.
22. But there is a controversy between the plaintiff on one hand and the defendants 2 and 3 on the other hand, regarding the nature of the title held by Kalyanasabesa Deekshidhar in respect of suit 'A' schedule property. According to the plaintiff, suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar, in which his son (second defendant) did not get a share by birth and on the death of Kalyanasabesa Deekshidhar, the plaintiff and the second defendant became entitled to half share each. Per contra, it is the contention of the defendants 2 and 3 that the suit 'A' schedule property, which was allotted to Kalyanasabesa Deekshidhar in Ex.B28-final decree for partition was not the absolute property of Kalyanasabesa Deekshidhar and it was the co-parcenary property of Kalyanasabesa Deekshidhar and his son, namely the second defendant; that second defendant became entitled to half share as co-parcener and after the death of Kalyanasabesa Deekshidhar intestate, his half share devolved equally on the plaintiff and the second defendant and that thus the plaintiff is entitled to 1/4 share alone, whereas the second defendant became entitled to 3/4 share in all as co-parcener and as LR of Kalyanasabesa Deekshidhar.
23. It should also be noticed that the second defendant has chosen to execute a sale deed under the original of Ex.B29 on 06.09.1999 conveying his 3/4 share in the suit 'A' schedule property to the third defendant. Admittedly, suit 'A' schedule property was not the self-acquired property of Kalyanasabesa Deekshidhar. It was his ancestral property and not only Kalyanasabesa Deekshidhar but his two brothers, namely Thyagaraja Deekshidhar and Raja Rathinam Deekshidhar (first defendant) were also entitled to equal shares in it as coparceners. We have already seen that the coparcenary consisting of Kalyanasabesa Deekshidhar and his brothers came an end by the final decree in Ex.B28 and the entire 'A' schedule property came to be allotted to the share of Kalyanasabesa Deekshidhar. It is the contention of the plaintiff that the second defendant would have got a right to an equal share with his father by birth in respect of 1/3 share referable to his father alone and that the remaining 2/3 shares belonging to the brothers of Kalyanasabesa Deekshidhar having been got released by making payment of the value of their shares under Ex.B28 - final decree had become the absolute property of Kalyanasabesa Deekshidhar in which the second defendant did not get a right by birth during the life time of his father and that thus after the death of Kalyanasabesa Deekshidhar, the plaintiff would have become entitled to 2/6 equivalent to 1/3, whereas the first defendant would have become entitled to 4/6 = 2/3 in suit 'A' schedule property. The above said contention raised on behalf of the plaintiff in this appeal is legally untenable.
24. In support of the contention of the plaintiff that suit 'A' schedule property in its entirety or at least the 2/3 shares for which ovalty was paid was the absolute property of Kalyanasabesa Deekshidhar, wherein the second defendant had got no right by birth during the life time of Kalyanasabesa Deekshidhar, the learned counsel for the plaintiff has relied on two judgments of the Hon'ble Supreme court, viz. 1) S.P.S.Balasubramanyam Vs. Suruttayan alias Andali Parayachi and others reported in (1994) 1 Supreme Court Cases 460 and 2) Municipal Council, Mandsaur V. Fakrichand and another reported in AIR 1997 SUPREME COURT 1251. The observations made in S.P.S.Balasubramanyam Vs. Suruttayan alias Andali Parayachi and others reported in (1994) 1 Supreme Court Cases 460 are as follows:-
"As regards the deed of settlement executed by Chinnathambi it having been found that Chinnathambi got his share by way of partition decree, the ancestral or coparcenary nature of property came to an end and Chinnathambi became its exclusive owner. Consequently, he could execute a deed of settlement in favour of his wife and children. Since Ramaswamy derived his title from the settlement deed it was valid and he could convey his interest in favour of the appellant."
Though such an observation was made by the Apex court in the said judgment, the context in which the same was made should be taken into consideration. Father Manthi had bequeathed his properties in favour of his sons and grandsons excluding Ramaswamy, the son of Chinnathambi. There was a suit for partition in respect of the properties bequeathed by Manthi and in the said suit filed by Chinnathambi, a compromise was entered between the three sons of Manthi agreeing that specific portions in possession of the sons of Manthi shall be continued to be possessed by them as their share. Thus, by virtue of the bequest made by Manthi and the compromise partition decree, Chinnathambi became the absolute owner of the property allotted to him towards his 1/3 share. Chinnathambi's son Ramasway having been excluded by the bequest made by Manthi, the property which Chinnathambi got by virtue of the bequest became his absolute property and not coparcenary property. What was sought to be reiterated by the said observation is that, on partition Chinnathambi became the exclusive owner of the property allotted to him with right to dispose of the same by way of a settlement deed, since he had got it by virtue of the bequest made by his father and not as the share of coparcener in which case alone, his son in turn would have got a right by birth. In addition to the same, in the said case, Chinnathambi settled his property in favour of his wife and children. Therefore, it was held that his son Ramaswamy, who derived his title from the settlement deed was entitled to convey his interest to another person.
25. Municipal Council, Mandsaur V. Fakrichand and another reported in AIR 1997 SUPREME COURT 1251 is not relevant for the purpose of deciding the issue involved in the case on hand. In the case before the Supreme Court, the suit was filed by three brothers claiming to be owners of the Hindu Joint Family property praying for a permanent injunction against the Municipal Council. In the appellate stage, one of the three brothers died and his LRs were not brought on record. Hence it was contended that the appeal would abate. On behalf of the Municipal Council (appellant in the said case), it was contended that the case of the plaintiff was that the property was a Hindu Joint Family property and as such it must be deemed to be represented by the Kartha of the joint family and that hence there was no question of abatement of the appeal as a whole. The Hon'ble Supreme Court held that there was no coparcenary; that if at all it was a coparcenary property, then the sons would have been coparceners even before the death of the father and there was no necessity to wait till the death of the father to get ownership of the property and that since they had specifically pleaded they became owners of the property on the death of their father, it was a case of joint owners and not coparcenary. In the said case, the pleadings of the persons who figured as plaintiffs therein was that they became owners of the property after the death of their father implying that they got the property from their father by way of succession. That is why the Hon'ble Supreme Court had held in the said case that the brothers were joint owners and not coparceners. Therefore, both the precedents cited by the learned counsel for the plaintiff are not helpful to sustain the contention of the plaintiff that Kalayanasabesa Deekshidhar became the exclusive owner of suit 'A' schedule property as it was allotted to his share in the final decree for partition.
26. Moreover, the nature of properties allotted in partition are dealt with in detail by a Division Bench of this court in M.Sahnmugha Udayar vs. Sivanandam and Others reported in (1993) II MLJ 617. The Division Bench, relying on several earlier judgmnets of the High Court as well as the Supreme court, clarified the position as follows:
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property... where the share allotted to a coparcener on partition consists of property which is subject to a mortgage, the fact that he subsequently clears it from the mortgage by his own self-acquisitions, does not alter the character of the property. The unencumbered property still remains ancestral, and his male issue acquires an interest in it by birth."
The amendment brought by Hindu Succession (Tamil Nadu Amendment) Act, 1989 making the daughters of a Hindu remaining unmarried on the cut-off date a coparcenr having a right in the ancestral property by birth, was also discussed.
27. The said observations made by the Division Bench of this court in M.Sahnmugha Udayar vs. Sivanandam and Others reported in (1993) II MLJ 617 shall squarely apply to the facts of the case on hand. The fact that Kalayanasabesa Deekshidhar had paid the values of the shares of his brothers and got the entire 'A' schedule property allotted to his share in the final decree for partition evidenced by Ex.B28 shall not take away the ancestral character of the property so far as his son, namely the second defendant is concerned. Even assuming that the shares of the brothers of Kalayanasabesa Deekshidhar were obtained by him for himself by making payment of their value, there is no iota of evidence to show that Kalyanasabesa Deekshidhar wanted to keep that 2/3 portion as his absolute property distinguished from his 1/3 share obtained by descent. As the property was enjoyed by Kalyanasabesa Deekshidhar as a single unit, no intention was manifested to keep the shares of his brothers as his separate property. Therefore, it can more conveniently be said that there is blending and throwing those shares also into the hotchpot. For the above said reasons, this court comes to the conclusion that there is no substance in the contention raised on behalf of the plaintiff that the suit 'A' schedule property was the absolute property of Kalyanasabesa Deekshidhar and hence plaintiff and the second defendant got equal shares (= each) after the death of Kalayanasabesa Deekshidhar. On the other hand, it is quite obvious that suit 'A' schedule property was the ancestral property in the hands of Kalayanasabesa Deekshidhar, in which his son, namely the second defendant got an equal right by birth and that the second defendant became a coparcener with his father Kalayanasabesa Deekshidhar in respect of suit 'A' schedule property.
28. The amendment brought by Hindu Succession (Tamil Nadu Amendment) Act, 1989 made the daughters, who were not married on the date of commencment of the said amendment alone as coparceners and those who were married before the date of commencment of the amendment were not entitled to the benefit of the amendment. The said amendment has now been replaced by a similar provision by the central Act, namely Hindu Succession (Amendment) Act, 2005. The said amendment was not given retrospective effect. But, so far as Tamil Nadu is concerned, the said amendment was given effect to from 25.03.1989. In this case the plaintiff shall not be benefitted by the amendment, as admittedly she got married before the commencment of the Hindu Succession (Tamil Nadu amendment) Act, 1989. P.W.1 admits that his marriage with the plaintiff took place in 1975. As such Kalayanasabesa Deekshidhar and his son, namely the second defendant alone were the coparceners entitled to equal share in the suit 'A' schedule property and on the death of Kalayanasabesa Deekshidhar, his half share develoved upon his children, namely the plaintiff and the second defendant. Thus the plaintiff became entitled to < share and the second defendant became entitled to = + < = > share. The said > share of the second defendant was conveyed by him to the third defendant under a sale deed dated 06.09.1999, a copy of which has been marked as Ex.B29. Therefore, there is no defect or infirmity in the finding of the trial court that the plaintiff is entilted to < share alone in suit 'A' schedule property and the remaining > share belongs to the third defendant, who has derived title from the second defendant. The court below has rightly come to the conclusion that the plaintiff shall be entitled to a preliminary decree for partition of the suit 'A' schedule property directing the division of the same into four equal shares and allotment of one such share to the plaintiff and for the application of provisions of the Partition Act in case the property is found to be indivisible.
29. A meek attempt was made on behalf of the plaintiff by advancing an argument that the third defendant being a stranger to the family could not be inducted in possession of the suit 'A' schedule property, which is a residential house and the remedy available to her is to file a suit for partition. This court is at a loss to understand why such a contention has been raised. It is not the case of the plaintiff that her possession as a co-owner should not be disturbed by the third party purchaser without filing a suit for partition or that the third party purchaser having been inducted in possession should be asked to surrender possession till a partition is effected. On the other hand, the plaintiff herself has chosen to file the suit for partition, in which the third defendant has also stated that her > share may be allotted to her. Under the above said facts and circumstances, this court does not find any infirmity or defect in the decision of the trial court to grant a decree for partition in respect of suit 'A' schedule property directing division of the same into four equal shares and allotment of one such share to the plaintiff and for the application of provisions of the Partition Act in case the property is found to be indivisible. No interference or modification of the same is warranted.
Point No.5:-
30. So far as the jewels and cash described in plaint 'B' schedule are concerned, the court below has arrived at a conclusion that, excepting the deposits evidenced by Exs.B22, B23 and B24, the existence of other items have not been proved by the plaintiff. In this regard, the plaintiff has not entered the witness box to substantiate her contention that the jewels and other items except those that are evidenced by the above said documents were available with any one of the defendants. Furthermore, P.W.1 has clearly admitted that Kalayanasabesa Deekshidhar was maintaining an account in Indian Bank and post office; that he himself was operating the accounts and that he never allowed his son, namely the second defendant, to look after his bank or post office account. It is also his admission that till the death of Kalayanasabesa Deekshidhar, the second defendant was not in cordial terms with him and that on the other hand he and his wife (plaintiff) used to pay visits to Kalyanasabesa Deekshidhar.
31. Five items are shown as movables and cash in plaint 'B' schedule. So far as the first two items namely, gold jewels weighing about 20 sovereigns and silver articles weighing about 8 kilos are concerned, the plaintiff has not adduced sufficient evidence to prove that they were available with the second defendant or with the first defendant or were available in the suit house shown to be 'A' schedule property. In fact, first defendant and the third defendant are disinterested in suit 'B' and 'C' schedule properties. Therefore, unless the plaintiff is able to prove the existence of the properties described as items 1 and 2 in the plaint 'B' schedule, she shall not be entitled to a decree for partition in respect of the same.
32. Though P.W.1 would have stated that Kalayanasabesa Deekshidhar had 20 sovereigns of gold jewels and they were taken by the second defendant, he would admit during cross-examination that after the death of Kalayanasabesa Deekshidhar, he did not see those jewels in the bureau. It is also his evidence that no inventory was taken. He has also admitted that he had never seen the silver vessels and that he came to know that Kalayanasabesa Deekshidhar had gold jewels and silver vessels described as items 1 and 2 in plaint 'B' schedule only through the information furnished by his wife. Therefore, the evidence of P.W.1 in this regard shall be hearsay and not based on his personal knowledge. Though the plaintiff might have produced Exs.A4 to A7 photos to show that Kalayanasabesa Deekshidhar was wearing Gowri Sankaram Rudramala, weighing about 10 to 15 sovereigns, the evidence of P.W.1 goes contra to the plaintiff's case. He would state that Kalayanasabesa Deekshidhar did not have Gowri Sankaram Rudramala of his own and that the one he was wearing belonged to P.W.1 which he had given to his father-in-law. It is his further evidence that after the death of Kalayanasabesa Deekshidhar, the second defendant had taken the said Gowri Sankaram Rudramala belonging to P.W.1. But, no action has been taken by P.W.1 for recovery of the same claiming it to be his property. On the other hand Exs.B1 and B2 have also been produced to show that the son of the plaintiff was wearing Gowri Sankaram Rudramala and Thoda in both hands. The same has been admitted by P.W.1. P.W.1 would also admit that he was not aware of the amount of cash available with Kalayanasabesa Deekshidhar at the time of his death and the cash deposits he had made. He has not spoken about the vessels cited as item 5 in 'B' schedule of the suit property. Therefore, the evidence of P.W.1 shall not be helpful to prove the case of the plaintiff that the gold jewels, silver articles, cash and vessels shown to be items 1, 2, 4 and 5 in plaint 'B' schedule were available and were taken by the second defendant.
33. One Vaithyanatha Deekshidhar was examined as P.W.2. During cross examination P.W.2 would admit that Gowri Sankaram Rudramala would be worn by the Deekshidhars who do poojas; that those who do not wear Gowri Sankaram Rudramala, would be provided with one by the temple, as it is a must for the Deekshidhars doing pooja to wear it and that the person who gets the Gowri Shankaram from the temple should ensure the safety of it and return it back to the temple. It is his further evidence that Kalayanasabesa Deekshidhar was doing poojas, but he did not know whether he had Gowri Sankaram Rudramala of his own. Ex.A4 has been produced to show that second defendant was wearing a Gowri Sankaram Rudramala. But the second defendant as D.W.2 would state that the same belonged to one Pattumani Ra.Thangasamy Sabesa Deekshidhar. Ex.A5 is another photograph in which second defendant is seen with Gowri Sankaram Rudramala. D.W.2 has given an explanation that the same belonged to the temple and that he was wearing it at the time of the temple function. Those two photographs are not enough to show that late Kalayanasabesa Deekshidhar was having Gowri Sankaram Rudramala of his own and the second defendant had taken the same. Similarly, there is no evidence to show that Kalayanasabesa Deekshidhar had Rs.2,00,000/- cash at the time of his death. Availability of the brass vessels and ever-silver vessels shown as item 5 of 'B' schedule also has not been proved by proper evidence. Therefore, the court below cannot be found fault with for coming to the conclusion that the gold jewels, silver articles, cash, brass and ever silver vessels described as items 1, 2, 4 and 5 of plaint 'B' schedule are not available for partition.
34. So far as the cash deposits in bank shown to be item 3 in 'B' schedule are concerned, there is no clear-cut evidence adduced on the side of the plaintiff. In fact, P.W.1, the husband of the plaintiff has stated that he did not have any knowledge of the deposits made by Kalayanasabesa Deekshidhar. However, the second defendant has admited that he came to know the deposits made by his father in the bank and post office from the documents marked as Exs.B22 to B24, which he had picked up from the table of Kalayanasabesa Deekshidhar after his death. It is his clear evidence that the amounts standing to the credit of those accounts were kept in tact and he did not operate those accounts. Ex.B22 is the post office savings account pass-book. The last entry made on 12.07.1995 shows a credit balance of Rs.2,437.90P. Ex.B23 is the monthly income saving pass-book. The amount deposited therein was Rs.12,000/-. The date of maturity of the said amount has been noted as 12.07.2001. Savings bank account pass-book for the account maintained by Kalayanasabesa Deekshidhar in Indian Bank, Chidambaram branch is Ex.B24. As per the last entry in Ex.B24 made on 15.06.1995, a sum of Rs.14,338.25P was shown in the credit balance column. Therefore, it is quite obvious from the said documents, coupled with the evidence of D.W.2, that the said amounts are available for partition. Totally, a sum of Rs.28,776.15P with accrued interest is available for partition. Despite the admission of the second defendant regarding the above said deposits, the court below has chosen to dismiss the suit, of course erroneously, in respect of the said deposits also. The court below should have decreed the suit in respect of a sum of Rs.28,776.15P covered by Exs.B22 to 24 together with accrued interest. To the said extent, the decree of the trial court requires modification.
35. The next question that would arise is whether the bank and post office deposits maintained by Kalayanasabesa Deekshidhar were his separate property in which the plaintiff and the second defendant would get equal shares. Admittedly, Kalayanasabesa Deekshidhar was doing kattalais at the request of kattalaidhars, for which he was being paid by them. Out of his earnings, the said deposits have been made. The second defendant does not dispute the fact that the bank and post office deposits of Kalayanasabesa Deekshidhar were his separate properties, in which he and the plaintiff would get equal shares. Accordingly, this court comes to the conclusion that the plaintiff shall be entitled to half share in the amounts covered by Exs.B22 to B24 and hence she shall be entitled to a decree for partition directing the division of the said amount into two equal parts and allottment of one such part to her.
Point No.6:-
36. Plaint 'C' schedule property is described to be the kattalais in Sri Sabanayagar Temple, Chidambaram. The details of the kattalais have not been given. From evidence it can be ascertain that there are kattalaidhars to the temple who pay remuneration for performing the kattalais for them in the temple. It is in the nature of remuneration for the service rendered. The same cannot be said to be a property capable of being partitioned. Hence, the court below has rightly come to the conclusion that the suit in respect of plaint 'C' schedule deserves to be dismissed.
37. For all the reasons stated above, the appeal filed by the first defendant, namely, A.S.No.857/2002 is dismissed and the appeal filed by the plaintiff, namely, A.S.No.676/2002 is allowed in part and the preliminary decree passed by the trial court is modified as follows:
i)There shall be a preliminary decree directing division of suit 'A' schedule property into 4 equal shares and allotment of one such share to the plaintiff.
ii)In respect of item 3 of plaint 'B' schedule property, there shall be a preliminary decree directing division of the amounts covered by Exs.B22 to 24 together with accrued interest directing the same to be divided into two equal shares and allotment of one such share to the plaintiff.
iii)The suit in respect of items 1, 2, 4 and 5 of plaint 'B' schedule and in respect of plaint 'C' schedule shall stand dismissed.
iv)There shall be no order as to cost.
