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T.V. Velmurugayya Pillai and ors. Vs. K.V. Lakshmana Perumal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1974)2MLJ295
AppellantT.V. Velmurugayya Pillai and ors.
RespondentK.V. Lakshmana Perumal
Cases ReferredSanthanam v. Subramania
Excerpt:
- .....as widow, had only a right of maintenance from the joint family properties. under the partition deed exhibit a-l certain properties were earmarked in lieu of maintenance of their mother gomathiammal and it was also agreed that after the death of gomathiammal, one of the properties which is the suit property, mentioned therein, was to be divided equally between the plaintiff and the first defendant and. in consideration thereof, ramasubramaniam should be given owelty to equalise his share. the plaintiff's case is that the-said partition was given effect to and was acted upon. gomathi ammal died on 14th august, 1966. the case of the plaintiff is that he spent for her protracted illness as also for her funeral expenses. after the death of gomathiammal, finding that the first defendant.....
Judgment:

T. Ramaprasada Rao, J.

1. Late Velayutharm Pillai had three sons, T.V. Velmurugiah Pillai, the first defendant, K.V. Lakshmanaperumal, the plaintiff, and Ramasubramaniam, the last two being; admittedly twins, Velayutham Pillai died in the year 1930 leaving behind him his. wife Gomathiammal and daughter Shan-mughathammal besides his three sons of whom two were minors. After his death, under the original of Exhibit A-1, dated 24th December, 1942 a partition was effected as between the defendant, the plaintiff and the said Ramasubramaniam,, the latter two as minors being represented by their mother and natural guardian Gomathiammal. We may at once record that on the date when Velayutham died in 1930, Gomathiammal, as widow, had only a right of maintenance from the joint family properties. Under the partition deed Exhibit A-l certain properties were earmarked in lieu of maintenance of their mother Gomathiammal and it was also agreed that after the death of Gomathiammal, one of the properties which is the suit property, mentioned therein, was to be divided equally between the plaintiff and the first defendant and. in consideration thereof, Ramasubramaniam should be given owelty to equalise his share. The plaintiff's case is that the-said partition was given effect to and was acted upon. Gomathi Ammal died on 14th August, 1966. The case of the plaintiff is that he spent for her protracted illness as also for her funeral expenses. After the death of Gomathiammal, finding that the first defendant was attempting to set up an exclusive title to the suit property, the plaintiff came to Court, after issuing the suit notice Exhibit A-32, dated 26th September, 1966, demanding partition, with the present suit seeking for a partition and separate possession of his half share in the suit house in accordance with the terms of Exhibit A-1. The first defendant raised a very curious contention. According to him, the plaintiff and his twin brother Ramasubramanam, were majors at the time when Exhibit A-1 was entered into and, therefore, the entire arrangement by which the partition was effected is ab initio void. His second contention was that the plaintiff, subsequent to the partition as above, went in adoption to another family and, therefore, disentitled himself to claim a share in the suit house. The third contention of his was that certain properties, which ought to have been brought into the hotchpot for the purpose of partition between himself and the plaintiff not having been so brought into it by the plaintiff and deliberately avoided, the suit is bad for partial partition. One other contention was also raised that Gomathiammal secured an interest under the partition deed Exhibit A-1, which interest was enlarged by the Hindu Succession Act of 1956, and that, therefore, Section 14 (1) of the Act would apply and not Section 14 (2) therein. Lastly, a claim was made by the first defendant that he spent certain amounts towards the medical treatment and funeral expenses of his mother and that in any event he should be reimbursed by the plaintiff to which the plaintiff also made a counter claim stating that he equally, if not more, spent, towards such medical and funeral expenses.

2. Defendants 2 to 6 have been added as party defendants to the action as sons of the first defendant and they adopted the written statement of the first defendant; Apart from sailing with their father, defendants 2 to 6 raised an additional ground of defence to the effect that Exhibit A-1 was signed by their father under the influence of his mother and their uncle, the husband of Shanmugathammal.

3. On these contentions, the following issues and the additional issue were raised by the defendants:

1. Whether the partition deed is invalid in law and plaintiff cannot claim any right in the suit property on the basis of the partition deed?

2. Whether the plaintiff cannot claim any right in the suit property, in view of his adoption in another family?

3. Whether the defendant is liable to account?

4. To what relief, if any, is the plaintiff entitled?

Additional issues were framed on 1st December, 1967:

1. Whether the first defendant spent amounts for the medical treatment and funeral of his mother?

2. Whether the first defendant is entitled to the counter-claim?

Additional issued framed on 3rd February, 1968 were:

1. Whether the suit is bad for partial partition?

2. Whether the plaintiff is entitled to the amount claimed in the reply statement?

4. On all the issues the defendants failed and even the plaintiff could not succeed in his counter claim in the sum of Rs. 1,400 said to have been spent by him towards the medical and funeral expenses of his mother. The aggrieved defendants are the appellants before us. The same can ten tiaras raised before the learned Subordinate judge are repeated before us.

5. In so far as the contentions of the defendants that the partition deed is invalid in the eye of law, since the plaintiff and Ramasubramaniam were majors on the date when Exhibit A-1 was entered into and were not minors as alleged in the partition deed, the Court below found that they were minors. This finding was rendered on the basis of Exhibit A-2 and A-67, which, are birth extracts of the plaintiff and his twin brother Ramasubramaniam, There is no evidence contra let in by the first defendant to sustain his case that there is any impropriety or irregularity in the recitals made in Exhibit A-1. We, therefore accept that Exhibit A-1 does not suffer from any infirmity as alleged by the defendants-appellants.

6. Regarding the contention whether the first defendant was unduly influenced by his mother or his brother-in-law, when he entered into the partition deed Exhibit A-1, the lower Court rightly did not accept the case of defendants, who besides stating the same, did not adduce any evidence in support of it. We find, therefore, that Exhibit A-1 is not bad for the reason that the first defendant was compulsorily made a party to it, he having been unduly influenced by his mother or his brother-in-law.

7. The next question is whether the plaintiff has no right to seek for a partition of the suit property in view of his adoption to another family. That the plaintiff was adopted is not in dispute. But the question is, whether the pre-existing right, which a member of the co-parcenary has secured prior to his being adopted to another family, would be divested by the supervening event of adoption. On the date when the plaintiff was adopted, he had already secured a vested right to secure a half share in the suit property. But his right to obtain possession thereof was only postponed till the life time of his mother Gomathiammal. 'The supervening circumstance of his 'being taken away in adoption in another family cannot divest such a right which has become irrevocable in the eye of law and which is in accordance with the personal law of the party. No authority has been placed before us to substantiate this contention. The lower Court, therefore, rightly agreed with the plaintiff and discountenanced the contention of the first defendant that by reason of the adoption of the plaintiff to another family, he lost his right to demand a partition and separate possession of the suit property, which admittedly he obtained under Exhibit A-1. and to which the first defendant was also a willing party.

8. The third contention of the first defendant was that the life interest given to Gamathiammal under Exhibit A-1, automatically enlarged itself into full fledged proprietary interest under Section 14 (1) of the Hindu Succession Act and that, therefore, the partition claimed by the plaintiff as if it is partible property and as if it is divisible under Section 14 (2) of the Act, is not maintainable. The trial Court noticed that the recitals in the partition deed were to the effect that Gomathiammal should enjoy the suit house and other properties mentioned therein for herself without powers of alienation. It was also mentioned expressly that the first defendant should take the western half of the suit property and the plaintiff should take the eastern half. We have already referred to the fact that a sum of Rs. 700 was payable by each of the brothers as owelty to Ramasubramaniam. After noticing such features in Exhibit A-1, the learned trial Judge went into the question as to what was the nature of the interest which Gomathiammal secured under the partition deed Exhibit A-1. The right, which Gomathiammal, secured under the partition deed was only declaratory in nature in the sense that it gave her a right to enjoy certain properties of the family for life in lieu of her maintenance. In Gurunadham Chetti v. Navaneethammd : AIR1967Mad429 , Natesan, J., said:

For Sub-section (2) of Section 14 to apply it is an essential condition that the instrument which limits or restricts the estate should itself be the source of foundation of the female's title to the property......A right of, maintenance, even if charged over a specified property, does not by itself amount to a transfer of the property but only creates a right of payment over the property.

To the same effect is another decision of our Court in Santhanam v. Subramania, Veeraswami, I.L.R. (1967) 1 Mad. 68 J., as he then was, explained the scope and effect of a maintenance grant given to a female Hindu at or about the time of partition or a family arrangement. The learned Judge said that it was not possible to accept the contention that when a female Hindu was giver property in lieu of maintenance, it was merely declaratory of her preexisting right and right to maintenance, was an abstract right which was in the nature of spes successions; in no sense could such a right be described as a right to or in property. Under Section 14 (2) of the Hindu Succession Act, if the foundation of title makes it clear that the female heir is to get a restricted estate in such property, then the doctrine of enlargement contained in Sub-section (1) to Section 14 of the Act is not automatically invoked to consider whether the property held by a female owner on the appropriate date under the Succession Act is enlarged or restricted by the instrument, (the deed of gift or the testamentary instrument or an award as the case may be) whereunder the female heir secures an interest in the property and which is the sole guide for interpretation. If the text of the said source of title creates only a restricted estate in the female heir in such property, then the rule of enlargement contained in Sub-section (1) of Section 14 would be completely out of consideration. Section 14 (1) of the Act deals only with property possessed by a female Hindu whether acquired before or after the commencement of this Act and such property shall be held by her as full owner thereof and not as a limited owner. The circumstances contemplated in Sub-section (1) of Section 14 of the Act are totally different from those contemplated in Sub-section (2) of Section 14 of the Act. It is in this context that the source of title under which the interest is created in a female owner becomes important. In the instant case under Exhibit A-1 Gomathiammal got only a limited interest and thereby a restricted estate in the house. By reason of Sub-section (2) of Section 14, this cannot be enlarged under Section 14 (1) of the Act. The learned Subordinate Judge, therefore, rightly accepted the contention of the respondent that in the instant case Section 14 (2) of the Act is the proper provision of law to be applied and not Section 14 (1) of the Act as contended by the first defendant.

9. The other contention raised by the first defendant was that in any event he should be reimbursed for all the amounts he spent towards the medical and funeral expenses of his mother. This was equally counter-claimed by the plaintiff, who in turn projected the case that he spent such amounts by himself. Both the claims made by the plaintiff and the first defendant were negatived by the Court below, which on hearing the parties, was satisfied that no one of them was entitled to any reimbursement as claimed. The trial Court was right in having referred to the partition deed whereunder the first defendant and the plaintiff took over the responsibility equally to spend for the medical and funeral expenses of their mother. According to the learned Subordinate Judge no case has been made out by either of the parties as against the other for the claim as put forward respectively by them in their pleadings and in the course of the hearing.

10. Regarding the claim of the defendants that the suit is bad for partial partition, we are constrained to state that the first defendant was ever anxious to non-suit the plaintiff on this ground and he has no reliable data to state that the suit is bad for non-inclusion of other partible items. As a matter of fact the first defendant in his anxiety to non-suit the plaintiff has sought to claim an interest in properties in which the female was at no time interested. The property described in Schedule V in the written statement was under Exhibit A-41, dated 24th December, 1942 gifted away to Velayutham Pillai's daughter Shanmugathammal. The first defendant is seeking to bring that property once again to the hotch-pot. This was rightly negatived by the Court below. Again the properties described in schedules to the written statement were long before endowed to the charities to. the knowledge of the first defendant himself; but yet he would seek for a partition of those properties and claim that the Suit is one for partial partition. This Contention was again negatived, rightly.

11. Regarding the properties in schedules and 4 they are 'Muttram' water pump-and pathway etc., which were kept admittedly in common enjoyment of the family members. It is not known as to-why the first defendant is trying to reopen the closed partition and ask for partition of properties such as path-way, water-pump, etc. Excepting to spite the plaintiff, there is no substance in this part of the defence. Some other items, which the parties do not own at all, are said to-be the properties of the family and not brought for the purpose of partition. This again is a defence put forward by the first defendant without any propriety whatsoever. Having considered the nature of the evidence let in and exaggerated nature of the claim, the trial Court rightly held that the suit is not bad for partial partition.

12. Lastly, defendants 2 to 6 though not through their father but by themselves, would pretend that Exhibit A-1, dated 24th December, 1942 was a deed of partition brought about by undue influence of his (1st defendant) mother and her paternal aunt's husband. This defence comes with ill-grace from defendants 2 to 6 when the first defendant himself is silent about it. On all the materials, therefore, the Court below found against the first defendant. We, after deep consideration and after hearing the learned Counsel for the plaintiff, have no hesitation in reiterating the findings rendered by the trial Court in favour of the respondent. The appeal, therefore fails and is dismissed. There will be no order as to costs.


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