AI Structured Summary
Not yet generated for this judgment
Judgment
V. Periya Karuppiah, J.—This Appeal is directed against the Judgment and decree passed by the lower Court made in O.S. No. 295 of 1991 dated 01.03.1994 in a Suit for partition filed by the Plaintiff. The Suit was filed by the Plaintiff seeking for her 1/5th share in the suit properties and for separate possession of the suit properties.
The brief averments made by the Plaintiff before the lower Court are as follows:
The Plaintiff, the Defendants 5 and 6 and one Ramayee are sister of Gurunatha Gounder, all the five of them being the children of Ramasami Gounder, who died more than 50 years ago. The said Ramasamy Gounder had an elder brother by name Marappa Gounder, who died on 14.4.1957. Marappa Gounder left behind only daughter by name Kuppayee, who died issueless. Gurunatha Gounder died 7 years ago leaving behind Defendants 1 to 4. The Defendants 1 to 4 are, therefore, entitled to 1/5th share. The Plaintiff''s sister Ramayee died about 2 years ago leaving behind Defendants 7 to 9. The Defendants 7 to 9 are therefore entitled to 1/5th share. The parties were all along in joint possession and enjoyment of the suit properties. The First Defendant had been making unlawful attempts to create false documents and there is no possibility of joint possession of the suit property. He is not agreeable for a partition of the suit properties. Hence, the Suit is filed for partition and separate possession of joint family property.
The objections raised by the Defendants 1 to 3 in their Written Statement are as follows:
The said properties were originally belonging to one Marappa Gounder by virtue of his purchase through the Court auction sale dated 19.09.1938. The said Marappa Gounder died on 11.5.1949 leaving his daughter Kuppayee and the said Kuppayee also died without any issues and as per the law prevailed then i.e. prior to 1956 the father of the Defendants 1 to 4 Gurunatha Gounder was the sole heir of Marappa Gounder and accordingly, he inherited the suit properties and was in possession and enjoyment of the said properties and after his death the Defendants 1 to 4 were continuing as lawful owners and were in possession and enjoyment of the said properties. It was also contended by the Defendants 1 to 4 that the Plaintiff and other Defendants 5 to 9 have no right in the suit property. The Suit is not properly valued for the purpose of Court fees and jurisdiction and the Suit has been filed with a view to get unlawful gain over the suit properties and prayed for dismissal of the Suit.
The lower Court had framed the following three issues for disposal:
(i) Whether the Plaintiff is entitled for partition as prayed for;
(ii) Whether the Suit was valued properly;
(iii) To what relief, the Plaintiff is entitled for.
The lower Court, after scrutinizing the evidence of the Plaintiff and the documents produced in Ex.A1 to A8 and the evidence of the Defendants and the documents produced in Ex.B1 to B12 had come to a conclusion that the Plaintiff was not entitled to the partition of 1/5th share of the suit properties, after holding that the paternal uncle of the Plaintiff Marappa Gounder died prior to the enforcement of Hindu Succession Act, 1956 and therefore, the Plaintiff and other sisters of the Plaintiff, who were not the heirs as on the date of death of Marappa Gounder on the date of death in the year 1949 and had dismissed the Suit. The aggrieved Plaintiff had filed the present Appeal against the said findings of the lower Court. During the pendency of the Appeal, the Plaintiff/Appellant died and the Appellants 2 to 4 were brought on record as her Legal Representatives. The Respondents 5 to 10 originally ordered to be impleaded in C.M.P. No. 8941 of 1998 dated 05.08.1998 and were subsequently, ordered to be deleted by an order dated 12.12.1998 made in C.M.P. No. 1164 of 1998. Subsequently, on the death of the Third Respondent, the Respondents 5 to 6 were brought on record as her Legal Representatives as per orders made in C.M.P. No. 10826 to 10828 of 2006.
Heard learned Senior Counsel, Mr. R. Gandhi appearing for Mr. R.G. Narendran, Counsel for Appellants and Mr. T. Murugamanickam, learned Counsel for Respondent.
On a careful perusal of the pleadings and evidence of both parties, the Judgment and decree of the lower Court and the arguments advanced on either side, I am of the view that the following points are necessary for the disposal of the Appeal:
(1) Whether the Plaintiff, Defendants 5& 6 and the Defendants 1 to 4 as one group, Defendants 7 to 9 as one group, are each entitled to 1/5th share in the suit properties?
(2) Whether the paternal uncle of the Plaintiff Marappa Gounder died on 14.4.1957 as averred in the Plaint?
(3) Whether the paternal uncle of Marappa Gounder was dead on 11.5.1949 as contended by the Defendants 1 to 4?
(4) Whether the Judgment and decree of the lower Court are liable to be set aside and the Appeal be allowed?
(5) To what relief the Appellants are entitled?
For the sake of convenience the rankings of parties before the lower Court are being used in this Judgment.
The point Nos. 1 to 3:
The suit properties described in the Plaint are, two items situated in the village at Surampatti of Erode Taluk, Periyar District. The said properties were originally belonging to one Marappa Gounder by virtue of his purchase through the Court auction sale dated 19.09.1938. The said Marappa Gounder and Ramasamy Gounder were brothers and their father was one Gurunatha Gounder. The Plaintiff, Defendants 5 and 6, one Ramayee, the mother of Defendants 8 and 9 and wife of Defendant 7 and one Gurunatha Gounder, the father of the Defendants 1 to 4 were the children of Ramasamy Gounder. The said Marappa Gounder had one daughter viz., Kuppayee, who died subsequent to the death of Marappa Gounder without any issue. The father Ramasamy Gounder died in the year 1941. According to the Plaintiff, the said paternal uncle Marappa Gounder died on 14.4.1957 leaving his only daughter Kuppayee to succeed to his properties and the said Kuppayee also died ten years later without any issues and therefore, the properties left out by Marappa Gounder devolved upon the Plaintiff/Defendants 5 and 6, Defendants 7 to 9 on one part and Defendants 1 to 4 on another part, equally as they were deemed to be in joint possession of the suit properties after the death of Kuppayee.
However the said averment of the Plaintiff was denied by the Defendants 1 to 4. According to the Defendants 1 to 4, the said Marappa Gounder died on 11.5.1949 leaving his daughter Kuppayee and the said Kuppayee also died without any issues and as per the law prevailed then i.e. prior to 1956 the father of the Defendants 1 to 4 Gurunatha Gounder was the sole heir of Marappa Gounder and accordingly he inherited the suit properties and was in possession and enjoyment of the said properties and after his death the Defendants 1 to 4 were continuing as lawful owners and were in possession and enjoyment of the said properties. It was also contended by the Defendants 1 to 4 that the Plaintiff and other Defendants 5 to 9 were not in possession and enjoyment of the suit properties at any point of time.
The Plaintiff had examined herself as P.W.1 and had produced Exs. A1 to A8 in support of her case. However, the First Defendant was examined on the side of the Defendants 1 to 4. Apart from the fact that D.W.2 is an official witness, who produced original Death Certificate maintained during 1949 as Ex.B.12, the Defendants 1 to 4 had also produced Exs.B1 to B11 in support of their case.
Learned Senior Counsel, Mr. R. Gandhi would submit in his argument that the lower Court did not frame any separate issue to decide the question as to the date of death of Marappa Gounder and had not solved the issues and the discussion regarding the Death Certificate of Marappa Gounder produced on either side was not perfectly done and in the absence of such procedure the matter should have been remanded to the lower Court for the purpose of getting a factual finding in respect of the said aspect and thereafter, only, the other issue should have been decided. He would also submit in his argument that the lower Court was wrong in coming to the conclusion that the Death Certificate produced by the Defendants in Ex.B.11 was genuine whereas the official witness D.W.2 had clearly spoken to the fact that Ex.B.11 was having the father''s name of the deceased person and it was not correct since in the original death register Ex.B.12, the name of the father of the deceased was not entered. He would further submit that when the document had been found tampered, the lower Court ought to have rejected the said document and accepted the Death Certificate produced as Ex.A2. He would further submit in his argument that the Death Certificate produced in Ex.A.2 would categorically show that Marappa Gounder died only on 14.4.1957 and the said fact was also spoken to by P.W.1 in her evidence. He would also submit that P.W.1 was a old lady aged about 67 at the time of her deposition, whereas D.W.1 was not an elderly person to speak about the matters taken place during 1940''s and 1950''s. Therefore, he would urge the Court that Ex.A.2, Death Certificate should have been upheld and Ex.B.11, Death Certificate produced by the Defendant ought to have been rejected. According to him, if the Death Certificate, Ex.A2 was held to be true and genuine document, then on the death of Marappa Gounder on 14.4.1957, the only daughter Kuppayee would have inherited the suit properties from her father and on her death in the year 1967 it would revert back to the heirs of Ramasamy Gounder as per Section 15 of the Hindu Succession Act. It is also submitted by the learned Senior Counsel that the Plaintiff should have been deemed as a co-owner along with other legal heirs and therefore, the claim of the Plaintiff on 1/5th share in the suit properties should have been ordered for partition and separate possession as prayed for. Therefore, he would request the Court to set aside the decree and Judgment and to allow the Appeal by passing a preliminary decree for partition as prayed for.
Per contra, learned Counsel for the Respondents Mr. T. Murugamanickam submits in his argument that the paternal uncle Marappa Gounder died in the year 1949 and it can be easily proved by Ex.B.11, Death Certificate. The Death Certificate Ex.B.11 was proved to have been correct by production of Ex.B.12, the death register and the small discrepancies of containing the name of the father of the deceased in the extract Ex.B.11 would not invalidate the main entry in the death register and the death register Ex.B. 12 contains the informants name as Gurunatha Gounder, father of the Plaintiff, who was none other than Marappa Gounder''s younger brother Ramasamy Gounder''s son and these particulars contained in Ex.B.12 would go to the extent of proving the death of Marappa Gounder in the year 1949, as per the entries made in Exs. B.11 and 12. He would also submit that such elaborate details contained in Exs.B.11 and B12 were not available in Ex.A.2 and therefore, Ex.A.2 cannot be relied upon. He would further submit in his argument that the evidence of D.W.1 was interested one and a mere coincidence of the name of Marappa Gounder in Ex.A.2 will not make the death of paternal uncle Marappa Gounder to be in the year 1957 as per Ex.A.2 and accordingly, the properties of paternal uncle Marappa Gounder devolved upon Gurunatha Gounder as per the law then in force and the daughter Kuppayee, who was living at the time of death of Marappa Gounder in the year 1949 was not a legal heir to succeed the estate of the paternal uncle Marappa Gounder and therefore, the suit properties could not be made available for partition in between Plaintiff, Defendants 5 to 10 as her legal heris as per the provisions of Hindu Succession Act, 1956 which came to effect from the date 17.6.1956. He would also submit that the father of Defendants 1 to 4, viz., Gurunatha Gounder was in possession and enjoyment of the suit properties from the date of death of Marappa Gounder in the year 1949 and after his death, the Defendants 1 to 4 were in continuous possession and enjoyment of the suit properties and the Plaintiff has no right over the said properties. Therefore, he would submit that the lower Court, even though, had not framed a separate issue on the date of death of Marappa Gounder, it had discussed the said dispute in the entitlement issue itself and had correctly come to a conclusion and therefore, the Judgment and decree of the lower Court are not liable to be set aside.
After giving anxious consideration to the arguments advanced on either side., I could understand that the relationship in between the parties are not disputed. It is also found that the Plaintiff had issued a notice seeking for partition in Ex.A.3 on 02.03.1991 only, despite the alleged right to sue for partition accrued to them even in the year 1967 on the death of Kuppayee Ammal. The reason stated by the Plaintiff was that the Plaintiff and other Defendants were in joint possession of the suit properties and therefore, the necessity to file Suit did not arise. The crucial fact to be decided in this case is the date of death of Marappa Gounder, in order to arrive to a conclusion as to whether the Plaintiff and other Defendants 5 to 10 could invoke the provisions of Hindu Succession Act or the devolution of properties of the Marappa Gounder have to be determined as per law existed prior to Hindu Succession Act 1956. The claim of the Plaintiff was that Marappa Gounder died on 14.4.1957. If it is so, the Hindu Succession Act, 1956 would be applicable and as per the Section 15 of Hindu Succession Act, the heirship has to be decided on the death of Kuppayee, daughter of Marappa Gounder which during 1967. Then the daughter would not have inherited anything from Marappa Gounder but the properties of Marappa Gounder would be deemed to have devolved upon Gurunatha Gounder, son of Ramasamy Gounder as brother''s son of Marappa Gounder. The Plaintiff and other sisters would not have any right over the properties as per law which did not give any absolute right to property to women. Therefore, it has to be seen what was the date of death of Marappa Gounder?
Ex.A.2 produced by the Plaintiff would show that the date of death of Marappa Gounder was 14.4.1957. P.W.1 has submitted to the fact that she applied for Death Certificate of Marappa Gounder and accordingly she produced the same. She would further depose in her evidence that her paternal uncle Marappa Gounder died when she was 30 years old. Actually she was 67 years old on 1994 when she deposed before the lower Court.
Therefore, she would be 30 years old in the year 1957. If her evidence is to be believed then the Death Certificate produced as Ex.A.2 would be true. But Ex.A.2 does not contain the particulars of the person, who gave information of the death of Marappa Gounder. As regards Ex.B.11, the Death Certificate produced by the Defendants 1 to 4, we could see that the entry in death register i.e., Ex.B.12 would go to show the name of the informant, Gurunatha Gounder was mentioned as brother''s son of the deceased. The entry of father''s name in Ex.B.11 as Gurunatha Gounder was not found in Ex.B.12, the original death register. D.W.2, the official witness, who produced Ex.B.12 had also admitted that the non-mentioning of Gurunatha Gounder in EX.B.12 while entering the death of Marappa Gounder was a mistake. Admittedly, there is no serious discrepancy. Such discrepancy could have been emanated while preparing the extracts at the office of the Register of Deaths and Births. It would have been seen that the name of the District was also mentioned as Erode whereas at the time of death of Marappa Gounder, it should have been either Salem or Coimbatore as Erode District was formed only during a later period. The addition of name of Gurunatha Gounder made in Ex.B.11, as father of the deceased will not vitiate the entire document. When Ex.A.2 and B.11 coupled with Ex.B.12 are compared, the particulars available with the death of Marappa Gounder as informed by brother''s son Gurunatha Gounder would go to show that Ex.B.11 and B.12 are more identifying the dead person as Marappa Gounder, brother of Ramasamy Gounder than Ex.A.2. I could not find any information to co-relate the said document with the death of paternal uncle Marappa Gounder. Therefore, the date of death of Marappa Gounder would be as per Ex.B.11 and Ex.B12 and not in accordance with Ex.A.2. Therefore, succession to the properties of Marappa Gounder would be deemed to have opened on his death in the year 1949. During the said period, Kuppayee, the daughter of Marappa Gounder was not having any right, on the property left out by Marappa Gounder. The only heir available at the time of death of Marappa Gounder was Gurunatha Gounder, the son of Ramsamy Gounder who was none other than the father of the Defendants 1 to 4. When once the properties of Marappa Gounder devolved upon Gurunatha Gounder, it became the property of the said Gurunatha Gounder and therefore, it could not be made as the subject matter of the partition after the promulgation of Hindu Succession Act, 1956.
Therefore, the claim of the Plaintiff for partition of her 1/5th share in the suit properties cannot be ordered. The Plaintiff/First Appellant died during the pendency of this Appeal and the Appellants 2 to 4 were claiming the right of partition footing at the shoes of the deceased/Plaintiff. Being the Legal Representatives of the 1st Appellant, the Appellants 2 to 4 are also not entitled for partition and separate possession of the suit properties. Accordingly, these points are decided against the Appellants. Point Nos. 4 and 5: In view of the decision reached in the earlier points, it is found that the Appellants 2 to 4 as the legal heirs of the deceased Plaintiff are not entitled for partition and separate possession of the suit properties. The lower Court had also found that the Plaintiff was not entitled to partition and separate possession of the suit properties and dismissed the Suit filed by her. Since the lower Court had already come to a conclusion of dismissal of the claim of the parties for partition, as reached by this Court in the earlier points, the Judgment and decree of the lower Court are not liable to be set aside. Accordingly, these points are also decided against the Appellants.
In fine the Judgment and decree passed by the lower Court are confirmed and the Appeal preferred by the Appellants is dismissed. Considering the relationship between the parties, there is no orders as to costs.