Adhmarani Nachiyar and Another vs Kumaragurubaramanandham and Another

Srinivasan, J.—The plaintiffs are the appellants in the second appeal, They are challenging the concurrent findings of the courts below. The

facts which are necessary are shortly these: The suit property originally belonged to one Muthuvel Nachiyar, who died in 1938. She had a son

Chandrasekara Pandiyan and two daughters Mangaleswari Nachiyar and Sankareswari Nachiyar. As the property was anwadheyaka stridhana, it

devolved on the two daughters Mangaleswari Nachiyar and Sankareswari Nachiyar and the son did not take any share therein. Mangaleswari

Nachiyar died on 11.4.1952 leaving her son the first defendant and daughter, the first plaintiff. Mangaleswari Nachiyar''s husband Sami Pandian

had married Sankareswari Nachiyar also. That is, of course, not very material in this case. Sankareswari Nachiyar, under Ex. A-4, dated

5.2.1966, entered into a partition with the first plaintiff, who was then a minor, represented by her guardian Rajalakshmi. The guardian was the

sister of Sami Pandian, being the aunt of the first plaintiff. Under the partition, the suit property was allotted to the share of the first plaintiff. She

executed a usufructuary mortgage in favour of the second plaintiff under Ex. A-6, dated 20.7.1976. Alleging that the first defendant had no right to

the property, but he sold the same to the second defendant on 22.9.1976 under Ex. B-3 and that the defendants were denying title of the first

plaintiff and attempting to interfere with her enjoyment, the suit was filed by the plaintiffs for declaration of title and injunction.

The plea raised in the written statement was that Sankareswari Nachiyar could not claim the share of Mangaleswari Nachiyar after her death

when the latter had two legal heirs. According to the defendants, the first plaintiff and the first defendant being the legal heirs of Mangaleswari

Nachiyar were entitled to the property and that the partition deed Ex. A-4 was a fabricated one and it was not true or valid in law. It was also

alleged that the usufructuary mortgage under which the second plaintiff was claiming was not true and valid and not binding on the defendants. It

was also the contention of the defendants that Mangaleswari Nachiyar died in June, 1956 and the first defendant be came entitled to half hare in

the property by virtue of the provisions of the Hindu Succession Act.

The Courts below have not accepted the plea of the defendants that Mangaleswari Nachiyar died in 1956 after the passing of the Hindu

Succession Act and upheld the claim of the plaintiffs that she died in 1952. However, the courts below held that on the death of Mangaleswari

Nachiyar, the property became exclusively owned by Sankareswari Nachiyar, as the share of Mangaleswari Nachiyar reverted back to Muthuvel

Nachiyar and devolved on Sankareswari Nachiyar, the other daughter. The Courts below held that the partition did not confer any right on the first

plaintiff, as she was not entitled to any share in the property at that time. Consequently, the Courts below dismissed the suit of the plaintiffs.

It is contended before me that Mangaleswari Nachiyar and Sankareswari Nachiyar took the property as tenants in common being the stridhana

heirs of their mother Muthuvel Nachiyar. Reliance is placed upon a passage in Mulla''s Hindu Law, but when it was pointed out to learned Counsel

that the passage would not apply to this case and the same book contains another passage which would be applicable to the present case, learned

Counsel agreed that Mangaleswari Nachiyar and Sankareswari Nachiyar took the property as joint tenants and on Mangaleswari Nachiyar''s

death, Sankareswari Nachiyar became entitled to the entire property. There can be no dispute about this position in law, as it has been held to be

so by this Court repeatedly. Suffice it to refer to the judgment of Natesan, J., in Venkotammal v. Muthu Krishna Naidu (1966) 1 M.L.J. 64 and

the judgment of Sethuraman, J., in Subbiah Chetti Vs. Veerajinnu Ammal and Others, .

Learned Counsel for the appellants then contended that Ex. A-4 should be construed as a family arrangement and the first plaintiff can certainly

claim that the suit property was allotted to her under the said family arrangement, which, according to him, is valid in law. Learned Counsel invites

my attention to the judgment of the Supreme Court in Ram Charan Das Vs. Girjanandini Devi and Others, , wherein a memorandum of

compromise in a suit between the parties was construed as a family settlement and treated as binding on the parties. The Supreme Court observed

that courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding

property amongst members of a family and a family is not to be understood in a narrow sense of being a group of persons whom the law

recognises as having a right of succession or having the claim to a share in the disputed property. The Supreme Court held that the consideration

for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations.

In the present case, a look at the terms of Ex. A-4 would show that it cannot be treated by any stretch of imagination to be a family

arrangement. Apart from the nomenclature of the document as a partition deed, the terms thereof are clear enough to show that the parties thereto

believed that the first plaintiff was entitled to a half share in the property on the death of Mangaleswari Nachiyar. Clauses 1, 2 and 3 are to the

effect that the first plaintiff being entitled to a share, an arrangement was being made in order to provide for proper maintenance and upbringing of

the first plaintiff. A reading of the recitals leaves no doubt that the parties treated it only as a partition and there was no intention whatever to enter

into a family arrangement.

Learned Counsel submits that even assuming that the parties treated the document as a partition deed, it is open to the court to construe it as a

family arrangement and hold that the first plaintiff obtained an interest in the property. I do not accept this contention. A similar question arose

before the Supreme Court in Neelakantan Damodaran Namboori and Another Vs. Velayudhan Pillai Narayana Pillai and Another, . The Supreme

Court held that in a deed of release where it was stated that by reason of sarvaswadanam marriage, the appellants were entitled to all movable and

immovable properties belonging to IIIom and, therefore, the executant was executing the release deed conferring all the rights and claims they had

obtained over the IIIom properties of sarvaswadanam form of marriage, the document, in terms confers the pre-existing rights of the appellants and

when in fact they had no pre-existing rights, the document does not confer any interest1 to them. The principles laid down in the judgment of the

Supreme Court would squarely apply to the present case. The partition deed proceeds on the footing that the first plaintiff had pre-existing rights in

the property, but in fact the first plaintiff did not have any such right. Hence Ex. A-4 cannot confer any right on the first plaintiff as such.

Mr. T.M. Hariharan, appearing as amicus curiae, drew my attention to a passage in the judgment of a Special Bench of this Court in The Chief

Controlling Revenue Authority, Madras Vs. B.A. Mallaya, , bringing out the nature of a partition. The passage is as follows:

The essence of a partition, as we mentioned, is that the asset in co-ownership as it were, as in the case of a coparcenary, is split up into severalty,

the process involving the destruction of the co-ownership and conversion of the same into several interests which are available for exclusive

allotment to each sharer. Such allotment of interests may be wholly in favour of one of the erstwhile coparceners without the other coparcener

getting anything as and by way of share. This will be a partition and not a release. Release need not bring necessarily destruction of co-ownership.

We think that those are the essential elements of distinction between a release and a partition of property owned in co-ownership. Merely because,

as we said, in a sense a partition may involve release, it cannot on that account be said that what is partition is not that but only a release.

Thus, it is clear that the partition deed Ex. A-4 does not confer any right on the first plaintiff and consequently, her mortgage in favour of the

second plaintiff is invalid. The result is, the courts below are right in holding that the plaintiffs do not have any right to the suit property and

dismissing the suit.

The second appeal is dismissed and there will be no order as to costs.

I place on record my appreciation and gratitude to Mr. T.M. Hariharan who helped me in this case by appearing as amicus curiae and placing

before me the relevant authorities.