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Madras High CourtSA/373/1997disposed of

Chinnathangam (*) Died v. Theresammal

2023-09-21Honourable Mr Justice Krishnan Ramasamy16 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.09.2023

CORAM

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY S.A.No.373 of 1997 1.Y.Chinnathangam (died) 2.Mary Angel 3.Mariammal 4.Mary Stella Roseling 5.James Carmel Paulraj (died) 6.Daisy Metilda 7.S.Joseph Selvaraj 8.Delphin Quorettee A4 to A8 are bring on record as LRs. of the deceased A1, as per order dated 26.02.2019 in C.M.P.No.10693 to 10695 of 2016 in S.A.No.373 of 1997.

9.G.Veronikam 10.Brindha Merin AA9 and 10 are brought on record as LRs of the deceased 5th appellant vide Court order dated 23.09.2020 made in C.M.P.(MD).No.1354, 1358 and 1359 of 2020 in S.A.No.373 of 1997 by this Court. ... Appellants

vs.

1.Y.Theresammal 2.Swamidhas 3.Sthanislaus 4.Mariathangam 5.S.Vincent Raj (died) 6.S.Aruldhasan (died) 7.Maria Pushpam 8.Y.Ponnammal 9.Wilson 10.G.Nelson 11.Alson Sobitha Raj 12.Celesti Bai 13.Mary Allby 14.V.Prakash Raj 15.Carol Joseph Raj 16.Benitta Mary Redleene respondents 13 to 16 are brought on record as LRs of the deceased R5 vide Court order dated 21.04.2022 made in C.M.P.(MD).No.2682 of 2022 in S.A.No.373 of 1997.

17.Nirmala 18.A.Geetha 19.A.Prema respondents 17 to 19 are brought on record as LRs of the deceased 6th respondent vide Court order dated 19.07.2023 made in C.M.P.(MD).Nos.10649, 10651 and 10654 of 2022 in S.A.No.373 of 1997.

... Respondents

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Kanyakumari District at Nagercoil in A.S.No.18 of 1993 and A.S.No.20 of 1993, dated 15.12.1995, on the file of Subordinate Judge, Padmanabhapuram, pursuant to the judgment and decree in O.S.No.43 of 1985, dated 27.11.1992.

For A4, A6 and A10 : Mr.N.Rhamadullah For A3 : Mr.G.Madhavan A1, A2 and A5 died For Respondents : Mr.M.Vallinayagam, Senior counsel for M/s.K.Elil Selvi For R13 to R17 & R19 : Mr.C.Vakeeswaran R5 and R6 died R2 to R4, R7, R8 and R10 dismissed S.A.No.374 of 1997 Y.Theresammal ... Appellant vs.

1.A.Swamidhas(died) 2.Sthanislaus 3.Chainnathangam (died) 4.Mrs.E.Mary Angel(deceased) 5.A.Mariammal 6.Mariathangam 7.S.Vincent Raj (died) 8.Aruldhasan(died) 9.Mariapushpam 10.Ponnammal

11.Wilson 12.Nelson 13.Alson Sobitha Raj 14.Celesti Bai 15.D.Dennis Rex (died) 16.Louis Mary Julius 17.Josephin Mary Pandian 18.Arul Xavier (died) 19.D.John Jaisingh RR15 to 19 are brought on record as LRs of deceased 4th respondent vide Court order dated 16.12.2003 in C.M.P.No.11022 of 1999.

20.A.Nirmala 21.A.Geetha 22.A.Prema RR 20 to 22 brought on record as LRs of the deceased R8 vide order dated 02.03.2010 made in M.P.Nos.1 to 3 of 2007 in S.A.No.374 of 1997.

23.Stella Roelin 24.Daicy Mettilla 25.Selvaraj 26.Dolphin Koratti 27.Ranikkam 28.Brientha Respondents 23 to 28 are brought on record as LRs of the deceased R3 vide Court order dated 29.03.2022 made in C.M.P.(MD).Nos.2824 to 2829 of 2019 in S.A.No.374 of 1997.

29.M.Jesu Stella Bai 30.D.Annie Sophia Rexline 31.David Rex

Respondents 29 to 31 are brought on record as LRs of the deceased R15 vide Court order dated 29.03.2022 made in C.M.P.(MD).Nos.2824 to 2829 of 2019 in S.A.No.374 of 1997.

32.Mary Allby 33.V.Prakash Raj 34.Carol Joseph Raj 35.Benitta Mary Redleene Respondents 32 to 35 are brought on record as LRs of the deceased R7 vide Court order dated 04.04.2022 made in C.M.P.(MD).No.3011 of 2022 in S.A.No.374 of 1997.

36.A.Rose Antony Joys 37.A.Rabinson 38.A.Subin respondents 36 to 38 are brought on record as LRs of the deceased 18th respondent vide Court order dated 19.07.2023 made in C.M.P.(MD).Nos.8423, 8426 and 8427 of 2023 in S.A.No.374 of 1997.

... Respondents Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Kanyakumari District at Nagercoil in A.S.No.18 of 1993 and A.S.No.20 of 1993, dated 15.12.1995, pursuant to the judgment and decree in O.S.No.43 of 1985, dated 27.11.1992, on the file of the Subordinate Judge, Padmanabhapuram.

For Appellant :Mr.M.Vallinayagam, Senior counsel for M/s.K.Elil Selvi For R7 : Mr.C.Vakeeswaran For R5, R16 to R19 : Mr.R.P.Ramachandran For R9 : Mr.V.Angasamy R1, R2, R3, R4, R8, R15 and R16 died

COMMON JUDGMENT These Second Appeals have been filed against the judgment and decree passed by the Principal District Judge, Kanyakumari District at Nagercoil in A.S.Nos.18 and 20 of 1993, dated 15.12.1995, pursuant to the judgment and decree passed by the Subordinate Judge, Padmanabhapuram. in O.S.No.43 of 1985, dated 27.11.1992.

2. While admitting these second appeals, this Court, on 31.03.1997, framed the following substantial questions of law: (i) Whether the finding of the lower Court that the share of Arulappan the father of Yestak Nadar who died in the year 1941 devolved not only to his son Yestak Nadar but also to his wife and daughters under the provisions of Travancore Christian Succession Act is correct?

(ii) Whether the determination of share to the plaintiff and defendants 4 to 6 is against Travancore Christian Succession Act in respect of succession which opened prior to 01.04.1951?

3. When the matters came up for hearing today, after making the submissions, by referring to the Indian Succession Act, 1925 as well as the Travancore Christian Succession Act, both the learned counsel

appearing for the appellants as well as the respondents narrow down the issues and the learned counsel for the appellants submitted as follows:

(1) Admittedly, suit item-2 (except 7 cents in survey No.593A belongs to Arulappan), Item-6, 7, 8 and 10, one half (1⁄2) of item 12, 13 and 14 of "A" Schedule belong to plaintiff's father Yestak Nadar. Therefore, the plaintiff is entitled to 1/6 share in the said properties as correctly held by the courts below. There is no dispute in this regard in the present second appeal.

(2) The "B" schedule properties admittedly belong to plaintiff's mother Sebestiyaye. Therefore, the plaintiff is entitled to 1/6 share in "B" schedule properties as correctly held by the court's below. The appellant is satisfied with the decree of the courts below in respect of "B" schedule property.

(3) The item-1, 7 cents (Survey No.593A) in Item-2 1⁄2 share in item-3, item-4, 5 and 9 "A" schedule belong to their grandfather "Arulappan Nadar". Arulappan Nadar admittedly died in 1941. On the date of his death, Travancore Christian Succession Act (regulation No.II (1092.M.E.) was in force. According to Travancore Christian Succession Act, Widow or mother shall have only life interest and daughter shall not be entitled to succeed to the properties of deceased. Therefore, Arulappan's daughter Prakasi, Varuvel and Cruzantony did not have any right over his properties. Arulappan's wife Mariantony also died on 10.08.1961. Therefore, the entire properties of plaintiff's grandfather "Arulappan" devolved

upon his only son the plaintiff's father Yestak Nadar and the plaintiff and the defendants 2 to 5 are equally entitled to 1/6 share in all the suit "A" schedule properties. The first appellate Court has failed to decide the case applying the provisions of Travancore Christian Succession Act relating to properties of plaintiff's grandfather Arulappan.

(4) The plaintiff's grandfather Arulappan's daughter Pragasi, Varuvel and Cruzantony had not claimed any right over his properties. During the pendency of the suit, the 2nd defendant with a view to reduce the plaintiff's share, has obtained release deeds under Ex.B8 and B9 as if they are also having share in the plaintiff's grandfather Arulappan's properties. When, they can't have no share as per the provisions of Travancore Christian Succession Act which was in force on the date of death of Arulappan Nadar. Therefore, the release deed obtained by the 2nd defendant from the daughter of Arulappn is void document and hence 2nd defendant can't claim more than 1/6 share on account of this release deed.

(5) The plaintiff's grandfather Arulappan had 1⁄2 share in item-3 of "A" schedule. He died in 1941. His entire properties devolved upon his only son Yesthak Nadar under Travancore Christian Succession Act. The courts below ought to have granted 1/6 share in one half (1⁄2) of 3rd item of "A" schedule in favour of appellant herein.

(6) The plaintiff's grandmother Mariantony was the

exclusive owner of item-11 of "A" schedule. She died on 10.08.1961. All her three daughters namely Prakasi, Varuvel and Cruzantony and her son Yestak Nadar have equal share. The plaintiff' is entitled to 1/6 is one fourth (1⁄4) of her property in item-11 of "A" schedule being a daughter of Yestak Nadar.

(7) The 2nd defendant and plaintiff's father Yestak Nadar have purchased the item-12 of "A" schedule properties. Yestak Nadar has one half (1⁄2) of item-12 of "A" schedule. Being a daughter, the plaintiff is entitled to 1/6 in one half of his item-12 of "A" schedule.

(8) The House property in Survey No.593A (7cents) in item-2 of "A" schedule bearing Door No.25/105 and 25/101 exclusively belongs to grandfather of the plaintiff and the plaintiff's father become absolute owner of the property on the demise of Arulappan Nadar in the year 1941 under Travancore Christian Succession Act and therefore, plaintiff has got 1/6 share in the house properties in item-2 of "A" schedule.

(9) Hence, the plaintiff is entitled to 1/6 share in item-1, 2 (including 7 cents in survey No.593A), Item-4, 5, 6, 7, 8, 9, 10, 13, 14 in "A" schedule and item-1 and 2 of "B" Schedule and 1/12 in Item-3, Item-12, (total) in "A" schedule"and 1/24 in item-11 in "A" schedule.

(10) It is also pertinent to say the 3rd defendant

Stantislas (nun) executed the release deed Ex.B10 in favour of the 2nd defendant in respect of her proposed shares excluding the item 7, 13, 14. Therefore, being a sister of deceased 3rd defendant (nun), the plaintiffs entitled to 1/5 share in item 7, 13, 14 in "A" schedule".

4. The learned counsel appearing for the respondents also filed the points for consideration, which read as under:

1) The plaintiff is the appellant in the present second appeal.

(2) The appellant originally filed the suit in O.S.No.43 of 1985 seeking partition. The case of the appellant is that "A" schedule property consists of 14 items. "A" schedule property absolutely belongs to her Father Yesthak Nadar. The 2nd defendant is her brother and defendants 3to 5 are her sisters. All are having equal 1/6 share in the property of Yesthak Nadar. Likewise, "B" schedule property belonged to their mother Sebastiyaye and the plaintiff and defendants 2 to 5 are entitled to equal1/6 share in the "B" schedule properties also.

(3) The case of the 2 ^ (nd) and 4 ^ (th) defendant is that, item -1, a portion of 7 cents (survey No.593A) in item-2, V1⁄2 share in item-3, item-4and 5 in "A" schedule belong to their grandfather Arulappan. Arulappandied in 1941. He had a son Yesthak Nadar and three daughters namely Pragasi, Varuvel

and Cruzantony. All the properties of Arulappan devolved upon her son and daughters equally. Therefore, 1/6 share can't granted in favour of plaintiff an defendants 2 to 5. Only 1⁄4 of the properties of Arulappan devolved upon his son Yestak Nadar, on his demise in the year 1975, the plaintiff and defendants 2 to 5 can have equal share only in 1 / (4 ^ (th)) of grandfather Arulappan's properties.

Points for consideration in the present second appeal :-

(1) Admittedly, suit item-2 (except 7 cents in survey No.593A belongs to Arulappan), Item-6, 7, 8 and 10, one half (1/2) of Item 12, 13 and 14 of "A" Schedule belong to plaintiff's father Yestak Nadar. Therefore, the plaintiff is entitled to 1/6 share in the said properties as correctly held by the courts below. There is no dispute in this regard in the present second appeal.

(2) The "B" schedule properties admittedly belong to plaintiff's mother Sebestiyaye. Therefore, the plaintiff is entitled to 1/6 share in "B" schedule properties as correctly held by the court's below. The appellant is satisfied with the decree of the courts below in respect "B" Schedule property.

(3) The item-1, 7 cents (Survey No.593A) in Item-2 1⁄2 share in item-3, item-4, 5 and 9 "A" schedule belong to their grandfather "Arulappan Nadar". Arulappan Nadar admittedly died in 1941. On the date of his death, Travancore Christian

Succession Act (regulation No.II (1092.M.E) was in force. According to Travancore Christian Succession Act, Widow or mother shall have only life interest and daughter shall not be entitled to succeed to the properties of deceased. Therefore, Arulappan's daughter Prakasi, Varuvel and Cruzantony did not have any right over his properties. Arulappan's wife Mariantony also died on 10.08.1961. Therefore, the entire properties of plaintiff's grandfather "Arulappan" devolved upon his only son the plaintiff's father Yestak Nadar and the plaintiff and defendants 2 to 5 are equally entitled to 1/6 share in all the suit "A" schedule properties. The fist appellate court has failed to decide the case applying the provisions of Travancore Christian Succession Act relating to properties of plaintiff's grandfather Arulappan.

(4) The plaintiff's grandfather Arulappan's daughter pragasi, Varuvel and Cruzantony had not claimed any right over his properties. During th pendency of the suit, the 2nd defendant with a view to reduce the plaintiff's share, has obtained release deeds under Ex.B8 and B9 as if they are also having share in the plaintiff's grandfather Arulappan's properties. When, they can't have no share as per the provisions of Travancore Christian Succession Act which was in force on the date of death of Arulappan Nadar. Therefore, the release deed obtained by the 2nd defendant from the daughter of Arulappan

is void document and hence 2nd defendant can't claim more than 1/6 share on account of this release deed.

(5) The plaintiff's grandfather Arulappan had1⁄2 share in item-3 of "A" schedule. He died in 1941. His entire properties devolved upon his only son Yesthak Nadar under Travancore Christian Succession Act. The courts below ought to have granted 1/6 share in one half (1/2) of 3rd item of "A" schedule in favour of appellant herein.

(6) The plaintiff's grandmother Mariantony was the exclusive owner of item-11 of "A" schedule. She died on 10.08.1961. All her three daughters namely Prakasi, Varuvel and Cruzantony and her son Yestak Nadar have equal share. The plaintiff is entitled to 1/6 is one fourth (1/4) of her property in item-11 of "A" schedule being a daughter of Yestak Nadar.

(7) The 2nd defendant and plaintiff's father Yestak Nadar have purchased the item-12 of "A" schedule properties. Yestak Nadar has one half (1/2) of item-12 of "A" schedule. Being a daughter, the plaintiff is entitled to 1/6 in one half of his item-12 of "A" schedule.

(8) The House property in survey No.593A (7 cents) in Item-2 of "A" schedule bearing Door No.25/105 and 25/101

exclusively belongs to grandfather of the plaintiff and the plaintiff's father become absolute owner of the property on the demise of Arulappan Nadar in the year 1941 under Travancore Christian Succession Act and therefore, plaintiff has got 1/6 share in the house properties in item-2 of "A" schedule.

9) Hence, the plaintiff is entitled to 1/6 share in item-1, 2 (including 7 cents in survey No.593A), Item-4, 5, 6, 7, 8, 9, 10, 13, 14 in "A" scheduled and item-1 and 2 of "B" Schedule and 1/12 in Item-3, Item-12 (total) in "A" schedule and 1/24 in item-11 in "A" schedule.

(10) It is also pertinent to say the 3rd defendant Stanislas (nun) executed the release deed Ex.B10 in favour of the 1st defendant in respect her proposed shares excluding the item-, 7, 13, 14, Therefore being a sister of deceased 2nd defendant (nun), the plaintiffs entitle 1/5 share in item-4, 7, 13, 14 in "A" Schedule.

5. A conjoint reading of the points for consideration filed by both the learned counsel appearing for the appellants and respondents, would reveal that both parties have made similar points in line with each other. Therefore, the shares of the respective plaintiffs and the other parties are

modified to the extent referred to above.

6. In such a view of the matter, the substantial questions of law are not required to be answered in these matters. Accordingly, both the Second Appeals are disposed of. No costs.

21.09.2023 NCC:Yes/No Index:Yes/No Speaking/Non-speaking order akv To 1.The Principal District Judge, Kanyakumari District at Nagercoil.

2.The Subordinate Judge, Padmanabhapuram.

3.The Section Officer, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.

KRISHNAN RAMASAMY , J.

akv

21.09.2023