A.S. No. 795 of 2008 and C.M.P. No. 1 of 2008 and Cross Obj. No. 133 of 2010. Case: 1. M. Govindasamy, 2. S. Sulochana and M. Govindasamy Vs 1. S. Sulochana and T. Iyyammal, 2. T. Iyyammal. High Court of Madras (India)
| Case Number | A.S. No. 795 of 2008 and C.M.P. No. 1 of 2008 and Cross Obj. No. 133 of 2010 |
| Counsel | For Appellant: Mr. D. Krishna Kumar and Mr. S. V. Jayaraman, Senior Counsel for Mr. T. Dhanasekar, Adv. And For Respondents: Mr. S. V. Jayaraman, Senior Counsel for Mr. T. Dhanasekar, Mr. K. Arangeswaran and Mr. D. Krishna Kumar, Advs. |
| Judges | M. Duraiswamy, J. |
| Issue | Hindu Succession Act, 1956 - Section 15(1)(a) |
| Citation | 2013 (2) LW 244 |
| Judgement Date | February 08, 2013 |
| Court | High Court of Madras (India) |
Judgment:
M. Duraiswamy, J.
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The above first appeal arises against the judgment and decree in O.S. No. 34 of 2007 on the file of the Additional District Court cum Fast Track Court No. 1, Erode. The first defendant is the appellant, the first respondent was the plaintiff and the second respondent was the second defendant in the suit.
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The plaintiff filed the suit in O.S. No. 34 of 2007 for partition, permanent injunction and for possession.
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The plaintiff, who is the first respondent in the appeal has filed the above Cross Objection challenging the finding of the trial Court in paragraph-37 of the judgment holding that the Schedule 3 & 4 of the suit properties are joint family properties.
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The brief case of the plaintiff is as follows:
(i) According to the plaintiff, she is the daughter of Late V.T.A. Marimuthu Chettiar. The first defendant is her younger brother and the second defendant is her younger sister. The plaintiff and defendants' grandfather Late T. Arumugam Chettiar was running an Oil Mill and his son Marimuthu Chettiar was also along with his father engaged in the business. Arumugam Chettiar out of his own business purchased several properties at Chithode and one house at Erode. On 14.11.1946, Arumugam Chettiar, his sons and one Angammal, minor daughter of Natesan Chettiar executed a Partition Deed and in the said partition, Arugmugam Chettiar was allotted 'A' Schedule property and Marimuthu Chettiar was allotted 'B' Schedule property.
(ii) In the year 1958, V.T.A. Marimuthu Chettiar purchased a house at Chithode out of his business income and another property, a vacant land of about 5,360 sq. ft., with a tiled roof and a go-down built thereon in or around 1972. The property allotted to V.T.A. Marimuthu Chettiar, under 'B' Schedule in the partition, is the ancestral property as far as the plaintiff and defendants are concerned. Marimuthu Chettiar died intestate on 20.04.1982, leaving behind his wife, Deivanaiammal, the plaintiff and defendants as his legal heirs. After the death of Marimuthu Chettiar, the plaintiff and defendants are entitled to their respective shares in the said properties.
(iii) Schedule '2' is the ancestral property and Items 1 & 2 in Schedule '3' are the self acquired properties of Marimuthu Chettiar. Schedule '2' is the property allotted to Marimuthu Chettiar in the partition. The plaintiff and defendants are entitled to 1/3rd share each in the property. Deivanaiammal, during her life time, purchased a vacant land measuring an extent of 5,670 sq. ft., on 16.11.1972, which is Schedule '4' of the suit property. The said Deivanaiammal died intestate on 27.07.1996 at Chithode, leaving behind the plaintiff and defendants as her legal heirs. The plaintiff and defendants are entitled to 1/3rd share each in her property. The plaintiff purchased a house site in Erode measuring an extent of 5,700 sq. ft., on 16.11.1972.
(iv) The original Sale Deed was handed over to the first defendant for prosecuting a litigation and thereafter, the first defendant retained the document with some ulterior motive. The plaintiff sent a letter dated 03.07.2004 requesting the first defendant to return the original Sale Deed, but the first defendant did not respond. In the notice dated 02.07.2004 sent by the first defendant, he admitted that all the properties were purchased out of the joint family income and also stated that the plaintiff and her sister Iyyammal are entitled to shares in all Items of the property and their shares are to be adjusted in value to the debts incurred by the first defendant towards medical expenses and business of their father. The first defendant also admitted that he was managing the Oil Mill run by his father since 1962. The doctrine of Pious obligation is cast more on the son. The vacant site in Erode, Kasipalayam Village, Subramaniam Nagar, is the separate property of the plaintiff and none has any right over the said property. Despite repeated demand for partition by the plaintiff, the first defendant did not come forward for the same. In these circumstances, the plaintiff filed the suit.
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The brief case of the first defendant is as follows:
(i) According to the defendant, all the properties were bought out of the joint family income earned by Marimuthu Chettiar and the first defendant. Marimuthu Chettiar and the first defendant not only purchased these two items of property, but also two more items of properties. The plaintiff has deliberately not included these items purchased by her father and the first defendant in her name only as trustee for the said property without any specific intention of settling the property for her, but only for the future welfare of the family and for the purpose of meeting the family and marriage expenses of the second defendant. Similarly, another property was purchased on the same day in the name of the mother of the plaintiff and defendants intending the mother to be the trustee of that joint family property. Only the property standing in the name of the mother has been listed in the suit as third Schedule property. The two house sites purchased on 16.11.1972 by the father of the first defendant at Erode in the name of the plaintiff were exclusively in possession and enjoyment of Marimuthu Chettiar and the first defendant.
(ii) The plaintiff was given in marriage to one T. Sundararajan, who was having no source of income to maintain his family at that time and the plaintiff and her husband were living with the first defendant and his father. The first...
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