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Mottaiyan Alias Muruga Koundar and ors. Vs. Anjalai Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1975)1MLJ245
AppellantMottaiyan Alias Muruga Koundar and ors.
RespondentAnjalai Ammal and anr.
Cases ReferredSrinivasa Padayachi v. Parvathammal
Excerpt:
- .....the third defendant is marimuthammal, the widow of alaga goundar. annasami executed the settlement deed exhibit a-1, dated 4th april, 1964 in respect of 55 1/2 cents in item 1 and 45 1/4 cents in item 2 in part ii of the plaint schedule in favour of the first plaintiff in consideration of a pre-nuptial agreement. the settlement deed was acted upon and the first plaintiff by marrying annasami fulfilled her obligations. the second plaintiff was born to them through that marriage. the deceased annasami and the first defendant became divided in status and were living separately. on the death of annasami, the first plaintiff, the second plaintiff, the second defendant and the third defendant were each entitled to a share in his properties. but since the defendants denied the right of the.....
Judgment:

S. Mohan, J.

1. Aggrieved by the concurrent judgments of the Courts below, the defendants have come up by way of Second Appeal to this Court.

2. The plaint allegations, inter alia, are that the first defendant and the deceased Annasami Gounder are the sons of one Alaga Goundar who died about twenty years before suit. Annasami died on 20th January, 1966. The first plaintiff is the second wife and the second plaintiff is the minor daughter of Annasami and the first plaintiff. The second defendant is the daughter of Annasami through his wife Chinnammal, who pre-deceased him. The third defendant is Marimuthammal, the widow of Alaga Goundar. Annasami executed the settlement deed Exhibit A-1, dated 4th April, 1964 in respect of 55 1/2 cents in item 1 and 45 1/4 cents in item 2 in Part II of the plaint schedule in favour of the first plaintiff in consideration of a pre-nuptial agreement. The settlement deed was acted upon and the first plaintiff by marrying Annasami fulfilled her obligations. The second plaintiff was born to them through that marriage. The deceased Annasami and the first defendant became divided in status and were living separately. On the death of Annasami, the first plaintiff, the second plaintiff, the second defendant and the third defendant were each entitled to a share in his properties. But since the defendants denied the right of the plaintiffs to claim a share, the necessity for the suit arose.

3. The defendants in their written statement contended that the first plaintiff was not the legally wedded wife of Annasami, that she was the wife of one Tulasi and that she was leading an immoral life and happened to live with Annasami for some time and that the second plaintiff was not born to Annasami. The settlement deed Exhibit A-1 was not valid as it related to the joint family properties. The joint family owned an one-fourth share in item 15 of the suit properties.

4. Both the Courts below have found that the first plaintiff is the legally wedded wife of Annasami and that the settlement deed in her favour is true and valid.

5. It is contended for the appellants that the findings of the Courts below cannot be supported in law. According to the learned Counsel, in view of Section 30 of the Hindu Succession Act, the finding of the Courts below that Exhibit A-1, notwithstanding the fact that it dealt with joint family properties, would be valid, is incorrect. In this connection reliance is placed upon the decision of this Court in Madras State Bhoodan Yagna Board v. Subramania Athinam D. B. : AIR1973Mad277 , wherein it has been held that the undivided interest of a coparcener can be dealt with only by means of a will, or a testament and not even by way of a gift. It is further contended, relying on the decision in Sivagnana Thevar v. Udayar Thevar : AIR1961Mad356 , that a gift will not be valid even to the extent of the donor's share. As propositions of law, no exception can be taken to these submissions. But I am afraid that neither of these decisions has any bearing to the question on hand. The Courts below have rightly held, relying on the decision in Srinivasa Padayachi v. Parvathammal : AIR1970Mad113 , that the settlement deed Exhibit A-1 is not a settlement in the ordinary sense of the term, but an alienation since it is supported by consideration. In fact Natesan, J., has held in the above decision that according to Mitakshara law prevailing in this State a coparcener may sell, mortgage or otherwise alienate for value his undivided interest in the coparcenary property without the consent of other co-parceners. This right of alienation has not been in any way affected by the passing of the Hindu Succession Act. The learned Counsel for the appellants further contends that in view of Section 4 of the Hindu Succession Act of 1956, in so far as no provision has been made for the case of an alienation, that law should cease to have any application. Per contra, it is contended by Mrs. Radha Gopalan, learned Counsel for the respondents, that only as regards matters for which succession has been provided under this Act (both intestate and testamentary) Section 4 will have an overriding effect and that cannot in any way affect the general right of a co-parcener under the Mitakshara law to alienate for valuable consideration even his undivided interest The learned Counsel for the respondents is right in her submission. As I observed earlier, this is not a case of a gift but an alienation for valuable consideration and therefore Section 4 of the Succession Act has no application whatever to this case.

6. There are no merits in the second appeal and the same is dismissed. There will be no order as to costs. No leave.


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