Shanmugham and Others vs Vellaiyappa Gounder and Others

M. Duraiswamy, J.—The above appeal arises against the judgment and decree passed in O.S. No. 12 of 1984, on the file of the Subordinate Court, Karur. The plaintiffs are the appellants and the respondents were the defendants. The first appellant died during the pendency of the appeal and his legal representative was impleaded as fourth appellant. Similarly the fourth respondent died during the pendency of the appeal.

The plaintiffs filed the suit in O.S. No. 12 of 1984 for partition and separate possession. The brief case of the plaintiffs is as follows:

"According to the plaintiffs, the suit properties are in joint and common possession and enjoyment of the plaintiffs and the defendants 1 to 3 and 5. One Perianna Gounder had three sons viz., Muthu Gounder @ Muthusamy Gounder, Soliappa Gounder and Marappa Gounder. The said Muthu Gounder @ Muthusamy Gounder had two sons viz., Thambi Gounder and the first defendant viz., Velliyappa Gounder. The said Velliyappa Gounder had two sons viz., Palaniappan and Marappan, who are the defendants 2 and 3.

(ii) Thambi Gounder married Kurumbayee Ammallong ago. As he had no issues, he married Palaniammal who is the fourth defendant in the suit. As he had no male issues through Palaniammal, he married the third plaintiff Soliammal. The said Thambi Gounder had children viz., the plaintiffs 1 and 2 through his third wife Soliammal and he had one daughter viz., the fifth defendant through his second wife Palaniammal.

(iii) Muthu Gounder @ Muthusamy had died long back. Thereafter the suit properties have been in common and joint possession and enjoyment of the said Thambi Gounder and the first defendant without any partition. Thambi Gounder lived till his lifetime along with his three wives and children, enjoying the suit properties along with his brother''s family commonly and jointly. From and out of the joint family properties, the 9th item of the suit properties was purchased for valid consideration on 29.09.1938 in the name of Thambi Gounder and first defendant. Thereafter the 12th item of the suit properties was also purchased for valid consideration on 16.03.1964 in the name of the first defendant from and out of the income from the joint family properties. Items 14 and 15 were purchased in the names of the first defendant and the fourth defendant under separate sale deeds from the joint family income. Item 13 of the suit properties was also purchased out of the income from the joint family properties on 16.04.1955. Therefore, according to the plaintiffs, all the properties are joint, common and ancestral properties of the plaintiffs and the defendants 1 to 3 and 5.

(iv) Thambi Gounder died leaving behind the plaintiffs and the fifth defendant as his legal heirs. The legally wedded first wife Karumayee Ammal settled all properties derived from the properties of her husband in favour of the first plaintiff.

(v) The defendants 1 to 3 are jointly entitled to half of the suit properties, the plaintiffs 1 and 2 and Karumayee Ammal and the 5th defendant are entitled to the remaining half share in the suit properties. The 3rd plaintiff and the 4th defendant are not entitled to any share in the properties of the deceased Thambi Gounder and they are not having the status of the legal wives of the deceased Thambi Gounder.

(v) In the half share of Thambi Gounder''s family properties, the first plaintiff is entitled to 1/2 share and the remaining 1/2 share will be divided among the children of Thambi Gounder i.e., the plaintiffs 1 and 2, fifth defendant and Karumayee Ammal each entitled 1/4th share. Therefore, the plaintiffs 1 and 2 jointly entitled to 7/16 share and the defendants 1 to 3 are jointly entitled to 8/16 share. The fifth defendant is entitled to 1/16 share. In these circumstances, the plaintiffs filed the suit for partition."

The brief case of the first defendant is as follows:

"According to the first defendant, Thambi Gounder had male child by name Periyasami through his second wife (4th defendant) born on 06.02.1964 and died on 04.05.1964 leaving behind the fourth defendant as his legal heir. The third plaintiff is not the legally wedded wife of Thambi Gounder. The ancestral properties were divided and partitioned between the defendant and his brother long back. There has been no joint family properties. The defendant also contended that the item Nos. 9, 12 and 13 are not joint family properties.

(ii) The 15th item of the suit properties was purchased by the fourth respondent and his sister Muniammal on 26.02.1972 out of their Sridhanam funds. The plaintiffs are not entitled for any share in the suit properties. In the item Nos. 1 to 5 and the item No. 9, Western half had fallen to the share of Thambi Gounder, while Eastern half had fallen to the share of first defendant. In items 7 and 8, northern half had fallen to the share of Thambi Gounder, while Southern half share to the first defendant. In the items 10 and 11, Thambi Gounder was allotted North Western and South Eastern portions, while the defendant was allotted North Eastern and South Western portions. In these circumstances, the first defendant prayed for dismissal of the suit."

The brief case of the second defendant is as follows:

"According to the second defendant, even during the life time of Thambi Gounder, the ancestral properties have been divided and partitioned between the first defendant and his brother Thambi Gounder long back. The first defendant and his brother Thambi Gounder had been in separate and exclusive possession and enjoyment of their respective shares. There is no joint possession and enjoyment as alleged by the plaintiffs. Item Nos. 10 and 11 were divided between Thambi Gounder and the first defendant. The second defendant and Soliyappa Gounder are cultivating tenants with regard to those properties. In these circumstances, the second defendant prayed for dismissal of the suit."

The brief case of the fourth defendant is as follows:

"According to the fourth defendant, she married Thambi Gounder about 38 years ago. She is the legally wedded wife of Thambi Gounder. After marriage, the said Thambi Gounder has been leading a family life with the defendant. In the lawful wedlock, a son by name Periyasami born on 06.02.1964. Later he died on 04.05.1964 leaving her as his legal heir. As such the fourth defendant is entitled to all the rights of her deceased son in the joint family properties.

(ii) The Item No. 15 was purchased by the fourth defendant along with Muniyammal out of her own, separate funds. As such the said item No. 15 is the exclusive property of the fourth defendant. Neither Thambi Gounder nor the family of the first defendant have got any manner of right whatsoever in the properties purchased by the fourth defendant. In these circumstances, the defendant prayed for dismissal of the suit."

The brief case of the sixth defendant is as follows:

"The sixth defendant claimed that he is a cultivating tenant and he is entitled to the protection of the Tamil Nadu Cultivating Tenants Protection Act. The plaintiffs nor other defendants nor anyone on their behalf have right to interfere with his peaceful possession and enjoyment of item No. 14 of the suit properties.

Before the trial Court on the side of the plaintiffs, four witnesses were examined and 61 documents Exs. A.1 to A.61 were marked. On the side of the defendants four witnesses were examined and 151 documents Exs. B.1 to B.151 were marked. The Advocate Commissioner''s report and plan were marked as Exs. C.1 and C.2. The trial Court, after taking into consideration the oral and documentary evidences of both sides, dismissed the suit.

Aggrieved over the judgment and decree of the trial Court, the plaintiffs have filed the above Appeal.

Heard Mr. T. Srinivasa Raghavan, learned Counsel appearing for the appellants, Mr. K. Govindarajan, learned Counsel appearing for the second respondent and Mr. S. Parthasarathy, learned Counsel appearing for the third respondent.

The learned Counsel appearing for the appellant contended that even if the third plaintiff was not a legally wedded wife of Thambi Gounder, the plaintiffs 1 and 2 are entitled to get a share as per Section 16 of the Hindu Marriage Act, 1955. Further the learned Counsel contended that the defendants having admitted that some of the suit properties belonged to the joint family, then the burden of proof is on the defendant to establish that all the other properties are their self-acquired properties. The learned Counsel also submitted that the children of the second and third wives of the Thambi Gounder are entitled to a share in the joint family properties. That apart, the learned Counsel also submitted that the dismissal of the suit on the ground that the first plaintiff was a minor at the time of filing of the suit is erroneous, for the reason that the provisions of Order 32 Rule 2 of the Code of Civil Procedure could be applied, unless the defendants make an application invoking the said provision.

In support of his contentions, the learned Counsel appearing for the appellants, relied upon the following judgments:

(i) In Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, , the Honourable Supreme Court held as follows:

"Female heirs in pre-existing law were not co-owners. Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession must be "nee vi nee clam nee precario" i.e., peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondent against whom time is running, ought, if to exercise due vigilance to be aware of what is happening. The possession of the appellants was adverse to the respondents in as much as the respondents ever since the marriage of the first appellant and her sister Chinto continued to remain in possession and enjoyment of the property in derogation of the right, title and interest hitherto held by the respondents."

(ii) In Gurnam Kaur (Smt) and Another Vs. Puran Singh and Others, , wherein the Honourable Supreme Court held as follows:

"2. Preceding the amendment, declaration of nullity by a decree of a Court is a pre-condition. Amendment 68 of 1976 has done away with it and declared that notwithstanding the marriage is null and void under Section 11 , any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate whether such child is born before or after the commencement of the Amendment 68 of 1976 and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise then on a petition under the Act. Thus it would be clear that declaration of validity of a marriage on a petition of either party or, in other words, declaration of the marriage as nullity under a decree which were preconditions under Section 12 of the Act is done away with. Consequentially, as if the marriage had been valid, the child shall be legitimate whether such child was born before or after the commencement of Act 68 of 1976. By operation of Section 8 of the Hindu Succession Act 1956 read with Schedule I, appellant being the daughter of Ram Singh, is entitled to the property of her father. The decree is accordingly granted. Application for appointing a guardian of the minor is allowed."

(iii) In Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, , wherein the Honourable Supreme Court held as follows:

"11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 09.09.2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6 , the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 09.09.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. "

(iv) In Kamalammal v. A.M. Shanmugham and others reported in AIR 1976 Madras 235, wherein this Court held that when the plaintiff had completed the age of 18 years, but not 21 when the suit was instituted and since a guardian was appointed for his property he attained majority by completing 21 years under Section 3 of the Majority Act, 1875. When the plaintiff attained majority during the pendency of the suit, the finding of the trial Court that the suit could be continued by the plaintiff and could be disposed of according to law was found to be correct.

(v) In Devendran and two others Vs. Munuswamy Reddiar (died) and nine others, , wherein this Court held that a suit by the minor without his next friend or guardian will not by itself render the decree passed in his favour is null and void."

Countering the submissions made by the learned Counsel appearing for the appellants, the learned Counsel for the respondents submitted that the plaintiffs being the third wife and the children of the third wife are not entitled for a share in the joint family properties, when the other two wives were also alive. Further the learned Counsel submitted that the third wife is not the legally wedded wife of Thambi Gounder and therefore they cannot claim share in the joint family properties. That apart, the learned Counsel also submitted that the trial Court, taking into consideration the oral and documentary evidences, rightly dismissed the suit.

On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, the following points arise for consideration in this appeal:

"(1) Whether the plaintiffs are entitled for as hare in the suit properties?

(2) Whether the plaintiffs are entitled to as hare under Section 16 of the Hindu Succession Act?"

The main issue involved in this appeal is whether the children of the third wife is entitled to a share in the suit properties? It is not in dispute that Thambi Gounder had married three wives viz., Karumbayee Ammal, Palaniammal-4th defendant and Solaiammal-3rd plaintiff. Karumbayee Ammal had no issues. Palaniammal had one daughter viz., the fifth defendant and Solaiammal - third plaintiff had one son and daughter viz., the plaintiffs 1 and 2. The third wife along with his children had filed the suit for partition as against the defendants. The first defendant is the brother of Thambi Gounder. The defendants 2 and 3 are the sons of the first defendant. The fourth defendant is the second wife of Thambi Gounder. The fifth defendant is her daughter. Under Ex. A.1-Release Deed dated 14.05.1982, the first wife Karumbayee Ammal settled her share in the properties which she derived from her husband Thambi Gounder in favour of the first plaintiff who is the son born to Thambi Gounder through his third wife for a valuable consideration.

On a perusal of Ex. A.1-Release Deed, it is clear that the first wife had stated that the plaintiffs 1 and 2 are the children born to Thambi Gounder through his third wife viz., the third plaintiff. That apart the defendants have not specifically disputed that the plaintiffs 1 and 2 are the children born to Thambi Gounder through his third wife. That being the case, the trial Court had erroneously came to the conclusion that the plaintiffs 1 and 2 have not proved that they are the children of Thambi Gounder. When it was not raised as an issue before the trial Court, the trial Court erroneously gave a finding that the plaintiffs 1 and 2 are not the legal heirs of Thambi Gounder. It is not in dispute that the said Thambi Gounder had married the fourth defendant and the third plaintiff, while the first wife was alive. Therefore, the marriage between the said Thambi Gounder and the fourth defendant and also with the third plaintiff cannot be a legally valid marriage. When the marriage between the fourth defendant and the third plaintiff are not legally valid marriage, the fourth defendant and the third plaintiff are not entitled for any share in the joint family properties. However under Section 16 of the Hindu Succession Act r/w Section 8 of the Act, even the illegitimate children of the father are entitled to a share in his properties. This aspect was not considered by the trial Court while dismissing the suit.

Under Section 16 and Section 8 of the Hindu Succession Act, even illegitimate children are entitled to a share in the properties. Therefore, the dismissal of the suit in entirety is erroneous. The trial Court has not considered the provision of the Hindu Succession Act, while dismissing the suit. Therefore the plaintiffs 1 and 2 are entitled to seek for partition of the joint family properties as per Sections 16 and 8 of the Hindu Succession Act. The plaintiffs 1 and 2 are entitled to claim a share from their father''s share in the joint family properties. In these circumstances, the trial Court ought not to have dismissed the suit for partition. Since the trial Court had dismissed the suit without considering the provisions of Sections 16 and 8 of the Hindu Succession Act, I am of the view that the judgment and decree of the trial Court have to be set aside and the matter should be remanded back to the trial Court for fresh consideration.

Accordingly the judgment and decree passed in O.S. No. 12 of 1984 on the file of the Subordinate Court, Karur are set aside and the matter is remanded back to the trial Court for fresh consideration. The trial Court is directed to take into consideration the provisions of Sections 16 and 8 of the Hindu Succession Act and decide the suit afresh. However it is made clear that the trial Court shall decide the suit afresh based on the available oral and documentary evidences and no fresh oral and documentary evidences shall be allowed by the trial Court. Since the suit is of the year 1984, the Subordinate Judge, Karur is directed to give topmost priority for the suit. The Subordinate Judge, Karur is also directed to decide all the issues involved in the suit and dispose of the same within a period of three months from the date of receipt of a copy of this judgment.

In the result, the Appeal is allowed. There shall be no order as to costs.