Leelavathi vs S. Govindan

B. Rajendran, J.—The Second Appeal Nos. 1586 & 1615 of 1998 arise out of original Suit in O.S. No.67 of 1989. The Plaintiff in O.S. No.67 of 1989 is the Appellant in S.A. No.1615 of 1998. The Defendants 8 & 9 in O.S. No.67 of 1989 are the Appellants in S.A. No. 1586 of 1998. S.A. No.1616 of 1998 is filed as against the Judgment passed in O.S. No.246 of 1989. The Plaintiffs arc the Appellants. The Appellants in S.A. No. 1586 of 1998 and the Appellant in S.A. No. 1615 of 1998 are also the Appellants in S.A. No.1616 of 1998. O.S. No.67 of 1989 which is challenged in the Second Appeal in S.A.No. 1586 & 1615 of 1998 was filed by the Plaintiff Govindan for the relief of partition of ''A'' & ''D'' Schedule property to allot 5/28th share and ''B'' schedule property 1/72 share and in ''C'' Schedule property 3/20th share subject to the First Defendants right to enjoy the income from the Plaint Schedule property till her life time, to render proper accounts and for profits. In that Suit, the 8th & 9th Defendants are also claiming partition along with the Plaintiff. They have filed a Written Statement accepting the partition. Since the Suit was dismissed, both of them filed separate Appeals and the Appeals were also dismissed. Aggrieved against the dismissal of the Appeal, the present Second Appeals in S.A. Nos. 1586 & 1615 of 1998 are filed.

S.A. Nos. 1616 of 1998, arising out of the Suit in O.S. No.246 of 1989, was filed by all the Three Plaintiffs for the relief of declaration that the Plaintiffs have vested remainder rights jointly with the Defendants 3 to 8, in the Suit properties as per the registered Settlement Deed dated 15.3.1952 and consequent thereof restraining the others from alienating or encumbering the Suit properties, in any way, against the interest of the Plaintiff as per the Settlement Deed dated 15.3.1952 and for costs. The Suit was jointly tried with other Suits and the same were dismissed. Against which, they have preferred an Appeal and the same was also dismissed. Aggrieved against the same, the Second Appeal in S.A. No.1616 of 1998 is also filed.

By consent, all the three cases are taken up together. The matter w as kept pending as Notice of motion. The questions of law which were argued by both parties are as follows:

"(i) Whether the Courts below erred in deciding that the divided son from the co-parcenery is not entitled to claim the father''s share after his death as his legal heir under Clause I of Section 8 of Hindu Succession Act ?

(ii) Whether Section 14(1) or 14(2) of Hindu Succession Act is applicable to the Settlement Deed dated 15.3.1952 marked as Ex.A-5 ?

The learned Counsel for the Appellants mainly would argue that the properties originally owned by one Sangaiah. Sangiah had to wifes viz., Nceli (first wife) and Neeliammal (second wife). Sangaiah died in 1962. Nceli, first wife pre-deceased her husband. Neeliammal, the second wife died on 21.4.1988. Neeliammal was the Plaintiff in O.S. No.246 of 1989. Sangaiah through Neeli, the first wife, had two children viz., Subbammal and Sundararaj. Subbammal died issueless. Sundararaj died on 9.10.1978. He had married four wives and through them he had the legal heirs. Sangaiah through Neeliammal, second wife, had two daughters viz., Leelavathi and Parameswari. Leelavathi and Parameswari are also parties to the Suit. Leelavathi is the Second Plaintiff in O.S. No.246 of 1989 and 8th Defendant in O.S. No.67 of 1989. Parameswari is the 9th Defendant in O.S. No.67 of 1989 and Second Plaintiff in O.S. No.246 of 1989. As stated supra, Sangaiah''s only son Sundararaj had married four wives. Sundararaj''s first wife is Vellaiammal who died on 18.3.1981. Vellaiammal''s son is Govindan. Govindan is the Plaintiff in O.S No.67 of 1989 who is the Third Plaintiff in O.S. No.246 of 1989 after the demise of the First Plaintiff Neeliammal his grand-mother. Sundararaj''s second wife Bommakkal died without any issues on 13.11.2006. Bommakkal is the First Defendant in O.S. No 67 of 1989 and also First Defendant in O.S. No.246 of 1989. The third wife Ayyammal died on 10.11.1989. She was Second Defendant in O.S. No 246 of 1989. The fourth wife Packiam died on 3.1.1999. She is the Second Defendant in O.S. No.67 of 1989 and Third Defendant in O.S. No.246 of 1989. The third wife Ayyammal had two daughters viz., Rajeswari and Muthulakshmi. Rajeswari died on 5.6.2001 who is the Sixth Defendant in O.S. No.67 of 1989 and Fourth Defendant in O.S. No.246 of 1989. Her legal heirs are M. Jeyaraj, J. Jawaharsantharaj and J. Jegdheeswaran. Ayyammal''s another daughter Muthulakshmi is the Seventh Defendant in O.S. No.67 of 1989 and Fifth Defendant in O.S. No.246 of 1989. The fourth wife Packiam died on 3.1.1999 who is the Second Defendant in O.S. No.67 of 1989 and Third Defendant in O.S. No.246 of 1989. Her Legal Heirs are Kcsavan, Rajasekaran and Jothimani. Her sons Kesavan and Rajasekaran died. Kesavan was the Third Defendant in O.S. No.67 of 1989 and Sixth Defendant in O.S.No.246 of 1989. Rajasekaran was the Fourth Defendant in O.S. No.67 of 1989 and Seventh Defendant in O.S. No.246 of 1989. Jothimani the another son of Packiam was the Fifth Defendant in O.S. No.67 of 1989 and Eighth Defendant in O.S. No.246 of 1989. The Legal Heirs of Kesavan and Rajasekaran were also unpleaded as parties. This is the genealogy as set out by the parties. The genealogy is not disputed.

The Plaintiff in O.S. No.67 of 1989 would mainly contend that there were four items of properties. ''A'' Schedule property is a separate property of his grand-father Sangaiah who purchased the same under Ex.A2 and settled the same under Ex.A4 in favour of his father Sundararaj. The Plaintiff had originally filed a Suit for partition as against his father Sundararaj in O.S. No.33 of 1957 and the said Suit was decreed on 28.11.1957. Ex.A6 is the Decree copy. The shares were allotted in the name of the father and the son in the partition Suit. ''D'' Schedule property is the exclusive property of the father which is purchased under Ex.A7 dated 10.7.1968. ''A'' schedule property was allotted under Settlement Deed. ''B'' Schedule property was allotted in partition. ''D'' Schedule property was purchased by father in 1968. Therefore all these properties are self-acquired property. The father Sundararaj died in the year 1978. Therefore, according to him, he is entitled to 1/3rd share as the second wife Bommakkal died issueless. The other legal representatives have been added as parties. But the Suit was dismissed by the Court below on the ground that the Plaintiff had earlier filed a partition suit in the year 1956 and it was decreed and therefore, he has gone away from the family. Hence, he is not entitled to the partition in respect of the father''s property.

The another contention was that Sundararaj the father of the Plaintiff had already divorced his wife way back in the year 1936, therefore, no share will devolve upon the divorced wife''s son. The Plaintiff even during the life time of his father Sundararaj had executed a Release Deed in favour of his father under Ex.B4 dated 18.6.1962. Therefore, he is not entitled to. As far as ''C'' Schedule property is concerned, it was jointly purchased under Ex. A3 by the grand-father Sangaiah and his father Sundararaj. Under Ex.A5 dated 15.3.1952, both his grand-father and his father jointly Executed a Settlement Deed in favour of Bommakkal and Ayyammal second and third wife of Sundararaj respectively to enjoy the property till their life time in lieu of their maintenance. According to the Plaintiff, that property which has been given in the Settlement Deed only as a life estate, after the advent of Hindu Succession Act, 1956 under Sections 14(1) & 14(2) it will enlarge into a full estate. Therefore, he was entitled to for a partition. Further his contention was that the jointly family property right has been claimed as Class-I heir as he is entitled to share as per the Hindu Succession Act. As per Section 8, after the death of the two wives of Sundararaj viz., Ayyammal and Bommakkal, who had only a life estate which has fully blossomed into a full estate. In fact, that is the reason the Second Suit in O.S. No.246 of 1989 is filed. In fact, Neeliammal has filed along with her daughter Leelavathi and Parameswari with Govindan in O.S. No.246 of 1989 for the relief claiming that they have vested right in the limited estate which blossomed as a full estate and they have got legal right and the Defendant cannot alienate the property that is why both the suits have been taken up together. Therefore, the main contention of the learned Counsel for the Appellants was that the lower Court was wrong in coming to the conclusion that after the earlier Partition Suit against his father, he has totally lost the right of partition. Further, even if his mother, wife of Sundararaj was divorced the son/Plaintiff cannot be excluded from the property right and lastly because of the advent of the Hindu Succession Act die estate devolved into a full estate. Therefore, the dismissal of both Suits in the Courts below is wrong was the main contention.

In this connection, the learned Counsel for the Appellants also relied upon the Judgment of the Supreme Court reported in V. Muthusami v. Angammal, 2002 (1) CTC 767 (SC): AIR 2002 SC 1279, for the proposition that when the settlement deed is executed by her father-in-law providing for maintenance to daughter-in-law is in recognition of her pre-existing right of maintenance against the properties of her husband. He would argue that unless there is a pre-existing right, as the right of maintenance could be enforced by a widow against the estate of her husband in the hands of her father-in-law only. The Supreme Court has categorically held that in a Settlement Deed executed by virtue of a panchayat cannot enlarge the right as the panchayat is only settlement of recognition of a right to be maintained from the properties. Therefore, the right after coming into force of the Act, she became a full owner over the Suit land and she has a power to execute a Sale Deed. He also relied upon the judgment of the Supreme Court reported in Commissioner of Wealth Tax, Kanpur, etc. v. Chander Sen, 1987 (100) LW 347, that case arose out of Income Tax Act, for the proposition that when the son is separated by partition, whether his income could be assessed as income of HUF of the son or whether it would be his individual income and effect of Section 8 as to whether the son would inherit as a Kartha of his own family. Therefore, the question that when the son as Class-I heir of the Schedule to inherit the property does he so do so in his individual property or does he so do so as kartha of his own undivided family was decided by the Court. He also relied upon the judgment reported in Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma, 1997 (2) CTC 686(SC) : 1997 (5) SCC 460, for enlargement of right. In an earlier partition Suit when the widow compromised and agreed to the fact that she has only a limited estate and subsequent to the commencement of the Act, when the widow acknowledged that she has only limited interest under the Compromise Decree with the provision that the property would revert to the son/appellant after her death. Therefore, the Court held that Sub-section (2) would apply and not sub-section (1) as it would enlarge the right of the widow even though in the compromise it is stated so. He further relied upon the Judgment reported in S.R. Srinivasa and others v. S. Padmavathamma, 2010 (5) SCC 274, for the proposition that the examination of a scribe of a Will who had not singed the Will with intention to attest, is not sufficient to satisfy the statutory requirement for the point that the Will which has been produced the scribe has been examined but they would only contend that the scribe has no intention or knowledge about the Will. Therefore, his evidence cannot be treated as one utilized for the purpose of proving the Will. Lastly, he would rely upon the Full Bench decision of this Court reported in The Additional Commissioner of Income Tax, Madras v. P.L. Karuppan Chettiar, 1978 (91) MLW 529, that case arose out of Income Tax Act, for the proposition that the property obtained in a partition between the father and son, the subsequent assessments made in the name of the HUF of the son, the question arose there was after the death of the father and after the commencement of the Act whether the income from the property obtained by son by inheritance from the fathers property can be clubbed with the income from joint family property of himself, his wife and son. The Court held that the property is a separate property of the son and income therefrom cannot be clubbed with the income from his HUF. Therefore, he would contend that the Appeal has to be allowed following all these Judgments.

Learned Counsel for the Respondent would mainly contend that the Plaintiff in O.S. No.86 of 1999, Govindan, who was bom only on 22.11.1936. Even in the year 1936, his mother was divorced as per the customary caste system. It was also alleged that she was married to one Sakkaiah at Chatrareddiapatti but in evidence, it has not been proved. Thereafter, on 3.10.1941, there was a Partition Deed between Sangaiah, the grand-father and the father of the Plaintiff Sundararaj under Ex.A2. The Govindan Plaintiff in the Suit was minor at that time. 4 items were given to father Sangaiah and 5 items w-ere given to Sundraraj and Govindan minor under Ex.A2. Under Ex.A3 the sale deed in favour of Sangaiah by Sundrararaj and Bommai Naicker has been produced to show that it is a self-acquired property. Ex.A5 settlement which has been executed by the father-in-law Sangaiah and the father Sundararaj in favour of Ayyammal and Bommakkal. The Settlement Deed is dated 15.3.1952. Under the Settlement Deed ''C'' Schedule property in O.S. No.67 of 1989 and Suit property in O.S. No.246 of 1989 has been included. He would also contend that Ex.B2 is the Sale Deed executed in favour of Neeliammal and Vellaiammal by Kalceswara Nadar. In that, Vellaiammars husband name is not mentioned. Normally, the husband name would be mentioned because she was divorced by the husband/father of the Plaintiff, it has not been mentioned was the main contention. He also produced Ex.B3 Sale Deed dated 9.10.1956 which is also a Sale Deed in favour of Parameswari and Leelavathi by Vellaimmal. Here also the husband name was not mentioned but the father name alone was given. A6 is the Compromise Decree in O.S. No.35 of 1957 in which B'' Schedule property is allotted to Sundararaj and after the death of Sangaiah in the year 1962 under Ex.A4 dated 11.4.1962 Sangaiah executed a Gift Deed in favour of Sundararaj allotting ''A'' Schedule property with ten items in O.S. No.67 of 1989. But after that on 18.6.1962 under Ex.B4 Govindan has released the property in favour of his father Sundararaj after receiving the consideration of Rs. 500/-. This property is shown as B'' Schedule first item in O.S. No.67 of 1989. ''D'' Schedule in O.S. No.67 of 1989 is purchased under Ex.A7-Sale Deed in favour of Sundararaj by Chcllakani. Sundararaj died on 9.10.1978. Though the Plaintiff claimed that there was a Will executed in favour of Govindan by his mother Vellaiammal, it was not proved and it was not produced. Ex.A10, a Gift Deed has been executed in favour of Rajeswari and Muthulakshmi by Bommakkal and Ayyammal in which Items 1 to 3, 1/2 share has been allotted in item 4 full share which is a self-acquired property of the donor. Then Item 3 serial No.2 Punchai southern portion of 4 acres which is ''C'' Schedule in the first item in O.S. No.67 of 1989. Vellaiammal died on 18.3.1981. Ex.B1 is the Patta proceedings in RDO, Aruppukottai for review of the grant of Patta filed by Govindan, Neeliammal, Leelavathi and Parameswari and the same was dismissed.

In this connection, he would rely upon the judgment of the Supreme Cour reported in A. Raghavamma and another v. A. Chenchamma and another, AIR 1964 SC 136, for the proposition that the burden of proof in respect of partition is on person w ho sets up partition. When one co-parcener separating from others there is no presumption whether rest continue joint or separate. Further, he would rely upon the judgment for the proposition that for severance of status there must be unequivocal declaration of intention. The intention should be made to other members. He also relied upon the Judgment reported in Narasimha Rao v. Narasimhant, AIR 1932 Mad. 361, for the proposition that on the death of a father leaving self-acquired property his undivided son succeeds to such property to the exclusion of a divided son. In this case, as he is a dived son, he has no right to devolve on. He would also rely upon the judgment reported in Bhagwan Dayal v. MsL Reoti Devi, AIR 1962 SC 287, for the proposition that if a joint hindu family separates, the family or any members of it may agree to re-union but such re-union has to be clearly established by evidence there should be agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family and as the burden is heavy on a party asserting reunion. In this case, he is already a divided son by virtue of Partition Suit no proof was regarding re-union. He would further rely upon the Judgment reported in Santhosh and others v. Saraswathibai and another, 2008 (1) SCC 465, for the proposition that the limited or restricted estate in a property given to a female Hindu enlarges by virtue of a pre-existing right for example in lieu of her right to maintenance or as a co-owner by operation of Sections 6, 8 & 12 of the Act, and is possessed by her then the limited or restricted estate w hen transformed into absolute estate. But, in this case, they would only contend that if the father-in-law is not entitled to maintain her daughter-in-law when the husband is alive. In this case, there is no pre-existing right available to the person. Only if there is a pre-existing right available and possession was there that right will devolve upon the full right and when there is no pre-existing right, definitely, the property will not enlarge. Therefore, he would mainly contend by legal position, there cannot be any enlargement of the right when there is no pre-existing right.

From an analysis of the entire evidence and the materials placed before the Court as also the judgments of the Courts below, it is very clear that the Settlement Deed executed in favour of the mother of the Plaintiff which was only a limited estate enlarged into a full estate for the simple reason that the father-in-law and the husband have executed the Settlement Deed in her favour as her husband has married another wife and she has been left out. Therefore, the Plaintiffs father-in-law also joined in the document ushering her right for maintenance. Therefore, the Supreme Court in a decision reported in Terene Traders v. RJ. & Co., AIR 1987 SC 1492, has categorically held that where female acquired a limited estate in the property and that when she is in possession of the same at the time of coming into force of the Act even if the possession is only in lieu of maintenance of her right, she would be entitled to become absolute owner. Similarly, insofar as to the question regarding the status of the Plaintiff, the Plaintiff has filed a Suit for Partition as against his father''s self-acquired property. He has left the family and thereafter, he wants to say that he is still in die family and claiming a partition. He has to prove that he has been reinducted into the family. Though as per Mitakshara''s Hindu Law, no writing is necessary for a re-union, but the re-union has to be proved that he has again joined in the family. But the Plaintiff, in his own evidence, stated that he is not in the family. Similarly, the Supreme Court has also pointed out that the wife is entitled to live separately from her husband and claim maintenance from him, if he is guilty of desertion, that is to say, of abandoning her without any reasonable cause, if he has any other wife living. Therefore, in this case, admittedly, the Settlement Deed has been executed because he has another wife living. That is why, the deed was executed with the vested right giving clearly a right of maintenance. Similarly, when we analyse the evidence of the Plaintiff, in the cross-examination, he admits that in a case of a sale executed in respect of women, who had married normally the husband''s name would be mentioned. But in this case, the sale executed by the mother only the father''s name has be mentioned for which he could not give any sufficient reason. He has also admitted in the evidence that "1952 VERNACULAR MATTER Similarly, he has admitted that there is no evidence for the re-union in the family after the Partition. Therefore, the Appellate Court taking into consideration of all these evidences and submissions, dismissed the Suit for partition and clearly held that even the Plaintiff or the Defendants 8 & 9 are not entitled for partition. As the finding given by the Court below is convincing, I have no hesitation in upholding the Judgment of the Court below.

In fact, as far as the question of law is concerned, the Plaintiff/Appellant argued only that he is entitled to the benefits under Section 8 of the Hindu Succession Act. Under Section 8 of the Hindu Succession Act, the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter. First of all, the provision would apply only if he dies intestate. In this case, it is very clearly proved that he had already filed a Suit for Partition and he has gone out of the family and there is no evidence to prove for re-union and the property has been devolved in the wife''s name have enlarged into a full estate and therefore, they in turn have sold the property. Therefore, the right which is now sought for by the Plaintiff under Section 8 of the Hindu Succession Act will not come to rescue at all. Therefore, the question is also answered against the Appellants. Similarly, the second question of law that whether Section 14(1) or 14(2) of Hindu Succession Act is applicable to the Settlement Deed dated 15.03.1952 marked as Ex.A5 ? In the earlier Paragraph, we have discussed in detail that how the limited estate has enlarged and when especially, it has been proved that it has been given for maintenance and that too after different marriages. Therefore, both the questions of law are answered as against the Appellants.

In the result, all the three Appeals are dismissed. No costs.