Subbiah vs Subbiah Naicker (Died)

erBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 08.03.2022

C O R A M

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

S.A.No.324 of 2003

Subbiah ...Appellant/Appellant / plaintiff Vs. 1.Subbiah Naicker (Died)

2.A.S.A.Radhakrishna Raja

3.S.Ramalakshmi

4.S.Saravanakumar

5.S.Pothiraj

6.S.Mahesh

7.R.Sagunthalai ...Respondents /Respondents/ Defendants [Respondents 3 to 7 are brought on record as Lrs of the deceased 1st respondent vide Court order dated 05.01.2022 made in CMP(MD)Nos.10821 to 10823 in S.A.No.324 of 2003] PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, as against the judgment and decree dated 23.01.2002 in A.S.No.38 of 2001, on the file of the Subordinate Judge, Sankarankovil confirming the judgment and decree dated 25.04.2001 in O.S.No.36 of 1997, on the file of the Principal District Munsif, Sankarankoil.

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For Appellants : Mr.M.Muthu Geethaiyan For Respondent No.2 : Mr.F.X.Eugene For Respondent : No appearance Nos.3 to 7

JUDGMENT

This Second appeal is filed as against the

concurrent findings of the Courts below. The appellant is

the plaintiff. He filed the suit in O.S.No.36 of 1997

before the District Munsif, Sanakarankoil, for

declaration and for permanent injunction as against the

first respondent. The suit was dismissed on 25.04.2001.

The appeal filed by him in A.S.No.38 of 2001 before the

Subordinate Judge, Sankarankovil was also dismissed by

judgment and decree dated 23.01.2002.

2.As against the above concurrent findings of the

courts, the present second appeal has been filed and this

Court admitted the second appeal on the following

substantial questions of law, on 07.03.2003:

1. Whether the findings of the Courts below that the plaintiff has not proved his title is legally sustainable on the face of the documentary evidence Ex.A2, Ex.A6 and Ex.A7 coupled with the oral documentary of P.W.3, D.W.1 and D.W.2?

2. Whether the findings of the Courts below that the plaintiff has not proved his possession is legally

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sustainable on the face of the admission made by D.W. 1 and D.W.2 in their evidence that the plaintiff's mother and plaintiff are in continuous possession of the suit property?

3.Mr.Muthugeethaniyan, learned Counsel for the

appellant has made his submission through the following

genealogy:

Avudaiammal – Gengaiah Naicker Death certificate [died 1951] Ex.A3, 28.01.1951 Daughter

Nachiarammal Venkatasamy Naicker Death certificate [died 1939] Ex.A4, 08.06.1939

Gengammal Seeni Naicker Lakshmiammal-Balakrishnan Subbaiah Naicker [died in 1960 [died in 1963 without issues][1st def died Ex.A.5] [married] 05.09.2015 Wife Rajammal] LRS R3- R7]

--------------------------- Subbaiah [Son] [Plaintiff/Appellant] Gift Deed dated 22.11.1991 Raju [son] Claiming title as per Ex.A7 Jeyalakshmi [wife] Originally S.No.184/2 Re.S.No.318/5 2 Acre 82 cents Sold property by sale deed to the 2nd respondent A.S.A.Rathakrishna Raja, claiming title as per Ex.B2 S.No.318/5, 2 Acre 04 cents.

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4.The Subject matter of the suit is the second

schedule property of 2 Acres 82 Cents. The suit

properties originally belong to one Avudaiammal, wife of

Gengaiah Naicker, in Survey No.184/2 to an extent of

4.7 Acres. Avudaiammal purchased the suit property in the

year 1926, vide Ex.A1 and she executed a settlement deed

in respect of the property, in favour of her daughter

Nachiarammal on 05.11.1936 vide Ex.A2. As per the

settlement deed Ex.A2, the properties were settled in

favour of Nachiarammal with a condition that it would be

mutually enjoyed by her mother Avudaiammal and

Nachiarammal till their lifetime and thereafter, it has

to go the female descendants of Nachiarammal. The said

Nachiarammal pre-deceased Avudaiammal on 08.06.1939,

leaving behind her two sons and two daughters, namely,

Gengammal, Seeni Naicker, Lakshmiammal and Subbaiah

Naicker and her death certificate is marked as Ex.A4.

Avudaimmal died on 28.01.1951 and her death certificate

is marked as Ex.A3. After the death of Avudaiammal as per

the settlement deed Ex.A2, the properties should go to

the daughters of Nachiarammal, namely, Gengammal and

Lakshmiammal. According to the plaintiff, Lakshmiammal

was an insane person. However, in the year 1951 she was

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married to one Balakrishnan, who left his wife

Lakshmiammal under the custody of Gengammal in the year

1958 and also married another woman. Thereafter,

the entire property was under the custody of Gengammal.

While so, the said Lakshmiammal died in the year 1963.

Gengammal gave her daughter to her brother Subbaiah

Naicker, the first defendant and also settled 1 Acre

25 cents, the first scheduled property in his favour.

The second schedule property was in possession of

Gengammal. She also executed a gift deed of the 2 acres

and 82 cents in Survey No.184/2(Re-survey No.318/5) to

her son/ plaintiff (Subbaiah) by gift deed dated

22.11.1991. From the year 1991, the second schedule

property was in possession of the plaintiff and the patta

was also issued in patta No.268. He also mortgaged the

second schedule property to one Rengaraj on 18.05.1995.

Under such circumstances, respondents 1 and 2 attempted

to disturb the peaceful possession of the plaintiff and

hence, he filed the above suit for declaration to declare

the second schedule property belongs to him and for a

consequential permanent injunction as against respondents

1 and 2. The suit was dismissed by the Principal District

Munsif, Sankarankoil and the appeal filed by the

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plaintiff before the Sub Court, Sankarankoil was also

dismissed.

5.Mr.Muthugeethaiyan, learned Counsel for the

appellant submits that the suit mentioned properties in

Schedule 1 and Schedule 2 originally belong to

Avudaiammal and there is no dispute with regard to the

same and the said Avudaiammal has purchased the property

in the year 1926, vide Ex.A1 and settled the property in

favour of her daughter, Nachiarammal in the year 1936

vide Ex.A2, however, with a condition that after their

lifetime, it has to go the female descendants of

Nachiarammal. There is no dispute that Gengammal and

Lakshmiammal are the female descendants of Nachiarammal.

Lakshmiammal became insane in the year 1958, her husband

Balakrishnan divorced her in a Village Panchayat and she

was under the custody of Gengammal, the mother of the

plaintiff and the said Lakshmiammal died in the year 1963

without any issue. From the property in Survey No.184/2,

Gengammal gave first schedule property of 1.25 Acres to

her brother cum son-in-law, viz., Subbaiah Naicker by

partition deed dated 29.06.1968 and settled the remaining

2.82 Acres the second schedule property to her son / the

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plaintiff vide gift deed dated 22.11.1991. However, the

first defendant disturbed the peaceful possession of the

plaintiff that the property of Gengammal has to go to the

female descendant, i.e., to his wife and therefore, the

plaintiff cannot claim any right over the property.

The second defendant claimed that he purchased the

property from one Jeyalakshmi, wife of one Raju, grandson

of Nachiarammal on 17.02.1995 through Ex.B2. Raju claims

title through a Will, but it was not marked as exhibit

before the trial Court. As per the Will the document

executed by Raju in favour of Jeyalakshmi, is marked as

Ex.B3, which was registered at Padasalai, Kerala on

08.11.1993 and through that document Jeyalakshmi executed

Ex.B2, in favour of the second defendant on 17.02.1995.

By virtue of these documents, the second defendant claims

title over the property in Old.S.No.184/2 (Resurvey No.

318/5) to the extent of 2 Acres 4 Cents. Though the trial

Court and the first appellate Court have not accepted the

said Will, held that Balakrishnan, husband of

Lakshmiammal, is the legal heir of the portion of the

property of Lakshmiammal and therefore, Balakrishnan is

having right over the half of the property in Survey No.

184/2 to an extent of 2.4 Acres.

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6.The learned Counsel for the appellant by referring

the provisions under Sections 15 and 16 of the Hindu

Succession Act, 1956 submits that Lakshmiammal died

intestate in the year 1963 without any issue. Even before

that Balakrishnan divorcing her wife Lakshmiammal in a

village panchayat, he left her under the custody of

Gengammal, the mother of the plaintiff in the year 1958.

Balakrishnan, who was examined as PW3 has also admitted

the same. Balakrishnan also married another woman.

This property subject matter of the suit was inherited by

Lakshiammal through her mother Nachiarammal, pursuant to

the settlement deed Ex.A2. If a female of Hindu family

dies intestate, without leaving any issue, then the

property inherited by her from her mother would go to

heirs of her father, as per Section 5(1)(a) of the Hindu

Succession Act, 1956 and the same is extracted here

under:

“15.General rules of succession in the case of female Hindus: (1) the property of a female Hindu dying intestate shall devolve according to the rules set out in section 16-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

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(b)Secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother;

7.The learned Counsel for the appellant also relied

on a recent judgment of the Hon'ble Supreme Court in

Arunachala Gounder (Dead) by Lrs Vs Ponnusamy and Ors

[in Civil Appeal No.6659 of 2011, dated 20.11.2022] and

the relevant portions are extracted hereunder:

70.Section 14 (I) converted all limited estates owned by women into absolute estates and the succession of these properties in the absence of a will or testament would take place in consonance with Section 15 of the Hindu Succession Act, 1956, which reads as follows:-

44“Section -15. General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father;

and

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(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1)-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father- in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” Section 16 – Order of Succession and manner of distribution among heirs of a female Hindu. – The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate’s property among those heirs shall take place, according to the following rules, namely:— Rule 1.—Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those 45 in any succeeding entry and those included in the same entry shall take simultaneously.

Rule 2.—If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.

Rule 3.—The devolution of the property of theon the heirs referred to in clauses

(b), (d) and (e) of subsection (1) and in

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sub-section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and suchperson had died intestate in respect thereof immediately after the intestate’s death.”

71. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1).

Sub- Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

72. Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband orfather- in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) 11/23 https://www.mhc.tn.gov.in/judis S.A.No.324 of 2003

comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

73. The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

74. Section 15(1)(d) provides that failing all heirs of the female specified in Entries

(a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death. In the present case the since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be heirs and entitled to 1/5th share each in the suit properties.

75. This Court while analysing the provisions of Sections 15 & 16 of the Act in the case of State of Punjab Vs. Balwant Singh &

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Ors.15, has held as under:-

“7. Sub-section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e). As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously. Sub- section (2) of Section 15 begins with a non-obstante clause providing that the order of succession is not that prescribed under sub-section (1) of Section 15. It carves out two exceptions to the general order of succes- sion provided under sub-section (1). The first exception relates to the property inherited by a female Hindu from her father or mother. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father. The second exception is in relation to the property inherited by a female Hindu 15 1992 Supp. (3) SCC 108 from her husband or from her father-

in-law. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter) not upon the other heirs referred to under sub-

section (1) in the order specified thereunder but upon the heirs of the husband.

8. The process of identifying the heirs of the intestate under sub-section (2) of Section 15 has been explained in Bhajya v. Gopikabai and Anr. [1978] 3 SCR

561.There this Court observed that the rule under which the property of the

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intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 provides that "the devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death".

76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs.16, a two-Judge Bench of this Court analysing the provisions of Sections 14, 15 and 16 of the Act reiterating the view taken in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as under :-

“The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession. “

77. Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.”

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8.The learned Counsel for respondent No.1 submits

that in view of the document Ex.A6, there was a partition

among the legal heirs of Gengammal and by the said

partition they have given up the rights in the settlement

deed Ex.A2. According to the learned Counsel, as per

Ex.A6, document Ex.A2 has not been given effect at all.

The defendant Subbaiah Naicker has also filed a written

statement before the trial Court that he is also entitled

for a share in the property of Nachiarammal and

therefore, according to the learned Counsel, all the

legal heirs of Nachiarammal are having equal share in the

schedule mentioned property and among document Ex.A2 and

Ex.A6, the later document of partition between Gengammal

and Seeni Naicker would prevail over, in view of Ex.A2.

Therefore, as per Hindu Succession Act all the legal

heirs of Nachiarammal are entitled for equal share

in the first schedule property. Further it is submitted

that Raju, S/o.Seeni Naikcer got the share of

Lakshmiammal, from her husband Balakrishnan by virtue of

document Ex.B1, dated 17.07.1992. Further, the plaintiff

has to establish his case that he is entitled for the

entire property. But the plaintiff has not approached the

Court with clean hands.

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9.Heard the learned Counsel for the appellants and

the learned Counsel for the second respondent and perused

the materials placed on record.

10.The suit schedule properties originally belong to

Avudaiammal, W/o.Gengaiah Naicker. She purchased the

property in Old Survey No.184/2 to an extent of 4.7 Acres

in the year 1926 vide document Ex.A1. Avudaiammal had a

daughter and a son, viz., Nachiarammal and Venkatasamy

Naicker respectively. During her lifetime, Avudaiammal

executed a registered settlement deed in favour of her

daughter Nachiarammal on 05.11.1936 vide document Ex.A2.

As per the settlement deed Avudaiammal and Nahicarammal

have to enjoy the property till their lifetime.

Thereafter, the property has to go to the female

descendants of Nachiarammal. However, Nachiarammal

predeceased her mother Avudaiammal on 08.06.1939 and her

mother Avudaiammal died on 28.01.1951. Their death

certificates are marked as Ex.A4 and Ex.A3 respectively.

Nachiarammal has two sons and two daughters. Gengammal is

the eldest daughter, followed by Seeni Naicker,

Lakshmiammal and Subbaiah Naicker. Lakshmiammal died in

the year 1963 without any issue. The plaintiff is the son

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of Gengammal and he exchanged certain properties to his

uncle Subbaiah Naicker in the year 1991 vide Ex.A7.

Balakrishnan [PW3] claiming to be the husband of

Lakshmiammal executed the release deed in favour of Raju

with regard to his half share of the property of

Lakshmiammal through document Ex.B1, dated 17.07.1992.

Raju, son of Seeni Naicker and also grandson of

Nachiarammal along with his mother Rajammal, wife of

Seeni Naicker executed sale deed dated 08.01.1993 in

favour of wife Jeyalakshmi, who in turn sold the property

by way of sale deed to the second respondent

A.S.Radhakrishna Raju to an extent of second 2.4 Acres in

Survey No.318/5 through document Ex.B2. Since

A.Radhakrishna Raja in the strength of Ex.B2 attempted to

enjoy the possession, the plaintiff, S/o.Gengammal, filed

the suit for declaration and for permanent injunction.

11.The suit was dismissed on 25.04.2001 by the

Principal District Munsif, Sankarankovil. The appeal

filed in A.S.No.38 of 2001 before the Subordinate Judge,

Sankarankovil was also dismissed by judgment and decree

dated 23.01.2002.

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12.The property is a self acquired property of

Avudaiammal in Old Survey No.184/2, which was purchased

by her in favour of 1926 vide document Ex.A1. With regard

to that property she created a settlement deed in the

year 1936, in favour of her daughter Nachiarammal with a

condition that after their lifetime, the property should

go to the female descendants of Nachiarammal.

Nachiarammal predeceased Avudaiammal in the year 1939 and

Avudaiammal passed away in the year 1951 and after the

death of Avudaiammal, the property was enjoyed by

Gengammal and her son plaintiff.

13.Seeni Naicker, the brother of Gengammal, married

one of the daughters of Gengammal. After the marriage, a

settlement was made between the plaintiff/appellant and

Seeni Naicker with regard to the property in Survey No.

184 /2 to an extent of 2 Acres 82 Cents through document

Ex.A7. The property of Seeni Naicker was also exchanged

in favour of the plaintiff.

14.The said Lakshmiammal, female descendant of

Nachiarammal married one Balakrishnan (PW3), who

admitted in his evidence that Lakshmiammal suffered with

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some mental disorder and therefore, she was under the

custody of the plaintiff's mother Gengammal and later on

died in the year 1967 without any issue and in the

meantime he also married two other women.

After the execution of document in Ex.A7, dated

22.11.1991, the said Balakrishnan executed a release deed

in favour of Raju, S/o.Seeni Naicker (second son of

Nachiarammal) vide document Ex.B1, dated 17.07.1992,

and released half of his share of the property in survey

No.184/2, in favour of Raju. In the strength of all these

documents Raju along with his mother Rajammal, wife of

Seeni Naicker executed sale deed in favour of Jeyalakshmi

in Ex.B3, dated 08.11.1993.

15.The contesting defendant / Respondent No.2

purchased the property in Old Survey No.184/2 Re Survey

No.318/5 to an extent of 2 Acres 4 Cents from Jeyalakshmi

through document Ex.B2, dated 17.02.1995.

16.The learned Counsel appearing for the second

respondent by referring document in Ex.A7 claims that

Subbiah, the plaintiff has created document Ex.A7 that of

partition and therefore, it is an admitted case that the

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property in Old Survey No.184/2 New Survey No.318/5 was

shared among the legal heirs of Nachiarammal.

17.It is not in dispute that the settlement deed

Ex.A2 was given effect. The appellate Court also admitted

the same and recorded in the findings that as per the

settlement deed, the property in Survey No.184/2 has to

go to the female descendant of Nachiarammal namely,

Gengammal and Lakshmiammal. The said Lakshmiammal died

intestate. The property in survey No.184/2 was inherited

by Lakshmiammal through settlement deed Ex.A2. As per

Section 15(2) of the Hindu Succession Act, 1956, any

property inherited by a family of Hindu from her father

or mother would devolve, in the absence of any son or

daughter, upon heirs of her father. In this case,

Lakshmiammal died intestate without any issue. It is also

claimed that the said Lakshmiammal was mentally affected

and therefore, she was under the custody of Gengammal.

Therefore, half share of the property of Lakshmiammal was

devolved upon the heirs of Nachiarammal and it has to be

divided equally among all the legal heirs of

Nachiarammal. Accordingly, each may get 68 cents of

4.2 Acres in Old Survey No.184/2. Respondent No.1, died

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pending the suit and his legal heirs were brought on

record as Respondents 3 to 7, but they did not prefer to

contest the second appeal. Respondent No.2 obtained the

property through the sale deed Ex.B2, executed by

Jeyalakshmi, in favour of respondent No.2. Jeyalakshmi

obtained the property through her husband Raju and she is

entitled for a share of 68 cents as per document Ex.A2

and the legal heir of Seeni Naicker, the second son of

Nachiarammal is having right only to an extent of 68

Cents and that too from the share of Lakshmiammal, which

has been devolved upon to her father after her demise in

the year 1963, as per Section 15(2) of the Hindu

Succession Act.

18.In the light of the above,

(i) the appellant is entitled to have 1.47 acres of

land ;

(ii) the 1st defendant is entitled to have 1.93 acres

of land ; and

(iii) the 2nd defendant is entitled to have

0.68 acre.

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19.The second appeal is allowed on the above terms.

The judgment and decree passed dated 23.01.2002 in

A.S.No.38 of 2001, on the file of the Subordinate Judge,

Sankarankovil and the judgment and decree dated

25.04.2001 passed in O.S.No.36 of 1997, on the file of

the Principal District Munsif, Sankarankoil are hereby

set aside. No costs. Consequently, connected

miscellaneous petitions stand closed.

08.03.2022

Index : yes/No Internet : yes/No dsk

To

1.The Subordinate Judge, Sankarankovil.

2.The Principal District Munsif, Sankarankoil.

3.The Record Keeper, V.R.Section,

Madurai Bench of Madras High Court, Madurai.

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B.PUGALENDHI., J

dsk

S.A.No.324 of 2003

08.03.2022

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