AI Drafter 
TaxTMI 
TaxTMI 
2022 (12) TMI 990
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.... the lifetime of plaintiff's grandfather late Palaniappa Chettiar out of the joint family nucleus in the name of various members of joint Hindu Family of grandfather late Palaniappa Chettiar. Some of the properties of larger joint Hindu family of grandfather late Palaniappa Chettiar were divided and distributed to the joint Hindu family of his sons including joint Hindu family of P.L.Ramanathan @ P.L.Meenakshi Sundaram and few other properties still retain their character as properties of joint Hindu family of grandfather late Palaniappa Chettiar. Thus, all the assets and properties owned by P.L.Ramanathan @ P.L.Meenakshi Sundaram are properties traceable to ancestral wealth and none of the properties are self acquired properties of P.L.Ramanathan @ P.L.Meenakshi Sundaram and therefore, the plaintiff has vested right, title and interest over the properties as coparceners. She is entitled to 1/3 share in the properties of the joint Hindu family. Plaintiff's father died on 10.04.1992 and plaintiff was aged about 17 years and was unmarried at that time. She got married in 1998. After the death of plaintiff's father, first defendant started managing the joint family propert....
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.... of the first defendant is that there is no joint family comprising of late father P.L.Ramanathan @ P.L.Meenakshi Sundaram, plaintiff and first defendant. It is denied that the joint family of late P.L.Ramanathan @ P.L.Meenakshi Sundaram possessed several immovable property at Chennai, Madurai, Kumbakonam and Malaysia. It is also denied that the properties were purchased during the life time of plaintiff's grandfather Palaniappa Chettiar in the name of various members of joint family out of the joint family nucleus, that some of the properties were divided and distributed and some other properties still retain the character of joint family properties. Plaintiff's claim as a coparcener of joint family and she is entitled to 1/3 share is not correct. She is not entitled to any share. Properties of father were initially managed by second defendant and one Valliappan as executors of the Will executed by late P.L.Ramanathan Chettiar @ P.L.Meenakshi Sundaram. Second defendant as an executrix sold one of the property in Malaysia and she has not properly accounted it. The Will of P.L.Ramanathan Chettiar @ P.L.Meenakshi Sundaram was probated at Malaysia. First defendant spent a huge....
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.... S/o. L.P.L.Palaniappa Chettiar. Though the property was purchased through the sale deed in the name of P.L.Ramanathan Chettiar, it was never intended to be his absolute property at any point of time. It was purchased out of the funds of L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar. It was acknowledged in the accounts of L.P.L.Palaniappa Chettiar. P.L.Ramanathan Chettiar also acknowledged this in Urban Land Ceiling proceedings that the entire 62 cents did not belong to him, but belong to his father L.P.L.Palaniappa Chettiar and fourth defendant's father in the ratio of 5/8 and 3/8. 6. On 06.09.1967, L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar entered into an agreement duly acknowledging that 62 cents in Plot No.112, Survey No.672 of Velacherry was purchased in the name of P.L.Ramanathan Chettiar on 04.02.1966 out of the funds provided by them and it was purchased for the benefit of two of them. P.L.Ramanathan Chettiar had also admitted the factum of the said agreement. Thus, plaintiff's grandfather L.P.L.Palaniappa Chettiar was entitled to only 5/8 share in item No.1 of the suit schedule. Plaintiff and defendants 1 to 3 can only claim share in 5/8 and ....
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....nt on 18.08.1983 bequeathing his properties mentioned in para-4(g) of the Will in equal shares to his sons, viz., (1) Meenachisundaram @ Ramanathan (2) Lakshmanan @ Singaram @ Sethulakshmanan (3) Rajendran @ Muthappan and (4) children of L.P.L.Palaniappa Chettiar's predeceased son Palaniappan @ Thiyagarajan. This Will remains undisputed and unchallenged till date. L.P.L.Palaniappa Chettiar appointed his eldest son Meenachisundarm @ Ramanathan and third son Lakshmanan @ Singaram @ Sethulakshmanan as executors of the Will and the Will dated 18.08.1983 was probated before the High Court of Malaya at Kuala Lumpur on 22.04.1986. 10. The said 2.85 acres was assigned new S.No.208/20 measuring 1.15.5 hectares and registered in the name of P.Ramanathan and six others. Meenachisundaram @ Ramanathan died on 10.04.1992 leaving behind his last Will and Testament dated 04.03.1991. This Will was probated before the High Court of Malaya at Kuala Lumpur by grant of probate dated 12.02.1999. Rajendran @ Muthappan, S/o. L.P.L.Palaniappa Chettiar died on 20.09.2003 leaving behind Chithradevi - his wife, children - Sornalakshmi and Sethunarayanan to succeed to his estate. (1) Sethulakshmanan @ S....
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....ne third share in the suit properties and separate possession thereof ? 3. Whether there are and were businesses of the family at Kumbakonam run under the name and style of Palaniappan Bankers and Palaniappa Jewellers and whether the first defendant is liable to account for the profits in the said business ? 4. Whether the suit properties are the joint family properties or absolute properties of late P.L.Ramanatha Chettiar ? 5. Whether the plaintiff is in joint possession of the suit properties ? 6. Whether the Court Fees paid under the Section 37(2) of Court Fees Act is maintainable ? 7. Whether the plaintiff is entitled for any other relief or reliefs? On 10.01.2017, the following additional issues were framed:- (1) Whether the suit is barred for non-joinder of proper and necessary parties ? (2) Whether the suit is barred by limitation ? (3) Whether the suit is barred for partial partition ? (4) Whether sale in the name of the ninth defendant is hit by lis pendens ? (5) To what extent the plaintiff is entitled to ? 13. PW.1 was examined and Exs.P1 to P8 were marked. DW.1 and DW.2....
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....) and (2) of the Prohibition of Benami Transaction Act, 1988. Ex.P2- sale deed, Ex.D5- auditor statement and Ex.D6-income tax return of the grandfather show that Ex.D11-Will was executed in respect of self acquired properties. The counter claim by defendants 5 to 7 is not maintainable. No presumption can be drawn with regard to the existence of ancestral joint family property or ancestral joint family nucleus, unless it is supported by evidence. There is no pleading with regard to the jewels. PW.1 - power agent of the plaintiff is the root cause for filing this suit, with a view to grab the property from the first defendant. 17. Learned counsel for the defendants 5 to 7 submitted that these defendants are concerned with item No.1 of the suit properties alone. Though item No.1 of the suit properties was purchased in the name of plaintiff's father P.L.Ramanathan @ P.L.Meenakshi Sundaram, this property was purchased by plaintiff's grandfather L.P.L.Palaniappa Chettiar and fourth defendant's father and defendants 5 to 7's grandfather P.L.Palaniappa Chettiar, in the name of P.L.Ramanathan @ P.L.Meenakshi Sundaram. It is evident from Exs.D5 to D9 and D18 to D21. As per....
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....re in the joint family properties, which came to the hands of the father P.L.Ramanathan @ P.L.Meenakshi Sundaram. In the plaintiff's community, management of the assets has always been with the male members and therefore, the plaintiff has no documents. However, first defendant, who is in possession of the documents, failed to produce the material documents. Adverse inference has to be drawn against him. MPLM firm was run by L.P.L.Palaniappa Chettiar with his brother-in-law P.L.Palaniappa Chettiar. This business is an ancestral business. Income from this business was utilised for the purchase of the suit properties. Even if it is held that the suit properties are not ancestral properties, plaintiff and third defendant are entitled to share, as per clause- (f) of Ex.D11- Will. 20. Issue No.4: We understand from the case set out by the parties that the plaintiff filed this suit claiming herself as one of the co-parceners of the joint hindu family consisting of her father late P.L.Ramanathan @ P.L.Meenatchi Sundaram, her brother RM.Sethu, who is the first defendant. She impleaded her mother R.M.Thenammai, the second defendant and sister M.Sornam, the third defendant for effe....
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....R 1954 SC 379] their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus.Same proposition has been followed in Rukhmabai v. Lala Laxminarayan [(1960) 2 SCR 253 : AIR 1960 SC 335] wherein it was observed as follows: (SCR pp. 259-60) "There is a presumption in Hindu law that a family is joint. There can be....
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....s have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 16.In Surendra Kumar V.Phoolchand their Lordships held as follows: "It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the part....
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.... revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid." ......... 14. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies i....
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....ufficient nucleus exist, then presumption is that the property is joint, when the particular member has no independent income. ➔ Property in the hands of any one of the joint family members, which came into his/her hands by operation of law of inheritance, will be treated as his/her separate property. ➔ Further, the character of the joint family property does not change with severance of the status of joint family so long as the property is in existence and is not partitioned among the co-sharers. ➔ In the similar way, when the manager of the property claims a property to be a separate one, the burden is on him to prove that the property is not out of joint family nucleus. Therefore, it is clear that there must be positive evidence to show that there were ancestral property/properties and those properties yielded sufficient income to meet the expenses and there were savings and that savings, namely, ancestral nucleus was available and was used for the purchase of properties, which are claimed as joint hindu family properties. Whether these factors are present in this case are to be considered now. 25. The original plaint, under ....
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....y, Chennai. 9th defendant has no claim over this property. Plaintiff and other defendants stake claim in this property. It is seen from the plaint averments that there is no specific mention as to how item no.1 of the suit properties was acquired. Though generally it is claimed that the properties were acquired in the name of family members out of joint hindu family funds, we have also seen that the defendants 5 to 7 claim that this property was purchased by L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar. Item no.1 of the suit properties was purchased by them by contributing the sale price in the ratio of 3/8 and 5/8. In support of this claim, they relied on Exs.D5 to D9 and D18 to D22. Ex.D5 is the copy of the statement of accounts of M.P.M.L.Firm, 32, Leboh Ampang, Kuala Lumpur, for the year ended 31st December 1969. This document is filed to show that L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar are partners in this firm and that partnership firm owned assets and that it had profitable business. Ex.D6 is the counter part of the income tax return, dated 17.06.1972, of L.P.L.Palaniappa Chettiar. Ex.D7 is the counter part of the income tax return, dated 24.08.1974. ....
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.... entitled to this property as per the shares mentioned above. 29. Ex.D19 is the copy of the bfhs;Kjy; fzf;F which confirms the share in item no.1 of the suit properties in the ratio of 3/8 and 5/8 to P.L.Palaniappa Chettiar and L.P.L.Palaniappa Chettiar. Ex.D20 is the copy of the statement given by P.L.Ramanathan @ P.L.Meenatchi Sundaram, father of the plaintiff. It is seen from this statement that he claimed that he purchased this property on 22.02.1966 in document no.470/66 and patta stood in his name in patta no.206. He also stated that there is yet another sharer in this property and his name is P.L.Chidambaram Chettiar. Though the property was purchased in his name and patta stood in his name, the property was shown in his name and P.L.Chidambaram Chettiar's name in the income tax account. P.L.Chidambaram Chettiar has 3/8 share in this property. Ex.D21 is another statement of P.L.Ramanathan @ P.L.Meenatchi Sundaram, in which, he claims that this property was purchased by his father L.P.L.Palaniappa Chettiar and his brother in law P.L.Palaniappa Chettiar. Therefore, his father L.P.L.Palaniappa Chettiar has 5/8 share and his brother in law P.L.Palaniappa Chettiar has 3/8 ....
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....ame of their family members. Therefore, the claim of the plaintiff that item no.1 of the suit properties was purchased out of joint family nucleus/ancestral nucleus and ancestral wealth is not true and in fact it is not correct. This Court finds that item no.1 of the suit properties was purchased by L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar, in the name of P.L.Ramanathan @ P.L.Meenatchi Sundaram from the income derived from their partnership business. 32. At this juncture, it is submitted by the learned counsel for the first defendant that Benami transaction is not permissible and therefore, the claim of the defendants 5 to 7 that item no.1 of the suit properties was purchased by L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar Benami in the name of P.L.Ramanathan @ P.L.Meenatchi Sundaram and therefore, they are entitled for 3/8 share cannot be entertained and sustained. This submissions was countered by the learned counsel for the defendants 5 to 7 on the ground that the Prohibition of Benami Property Transactions Act, 1988 had come into force only from 1988 and the Benami transactions were prevalent and approved prior to the introduction of this Act. 33. Th....
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....on by or on behalf of a person claiming to be the real owner of the property. When considering the case in Mithilesh kumari and another Vs.Prem behari khare reported in (1989) 2 SCC 95, the Hon'ble Supreme Court came to consider the applicability of the provisions, especially, Section 4 of the Prohibition of Benami Property Transactions Act, 1988, to the transactions that had taken place prior to the introduction of the Prohibition of Benami Property Transactions Act, 1988. In the said case, the plaintiff filed a suit for declaration that he be declared to be the sole and real owner of the suit house and that the defendant be permanently restrained from transferring the suit house. The suit was decreed by the learned Civil Judge, Lucknow. In the first appeal by the defendant, the First Appellate Court confirmed the findings of the trial Court and found that the plaintiff paid the consideration and purchased the suit house as benami in the name of the defendant. Second appeal was also dismissed. The transactions concerned in this case had taken place prior to the introduction of the Prohibition of Benami Property Transactions Act, 1988. Against the dismissal of second appeal, de....
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....fying statute. In case of a qualifying or disqualifying statute it may be necessarily retroactive. For example when a Law of Represen- tation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 yearS in the past would be as much eligible as those who attained that age at the moment of the law coming into force. When an Act is declaratory in nature .the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense there was a right to recover or resist in the real owner against the benami- dar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is a disabling statute. All the real owners are equally affected by the disability provision irrespective of th....
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....kesh Sharma reported in (2020) 9 SCC (1) daughters are entitled for equal share in the ancestral property on par with the sons. Therefore, P.L.Thennammai can also share in the 3/8 share in item no.1 of the suit properties along with P.L.Palaniappan and the deceased P.L.Chidambaram Chettiar. After the death of P.L.Chidambaram Chettiar, his legal heirs are entitled for the share of P.L.Chidambaram Chettiar in 3/8 in item no.1 of the suit properties. However, P.L.Thennammai and P.L.Palaniappa Chettiar are not parties to this suit and in their absence partition in respect of this property cannot be considered. 38. Item no.2 of the suit properties is 3 acres of land in S.No.208/3A (acres 2.85 cents), 209/2A (3 cents) and 502/1(12 cents) in Nagalkeni, Chrompet, Zamin Pallavaram Village, Chennai South. Plaintiff has produced Ex.P2, copy of the sale deed in respect of item No.2 of the suit properties. Through this document, L.P.L.Palaniappa Chettiar had purchased this property from one K.A.Shaik Mohammed Saibu on 12.02.1976. The plaintiff has not produced any document or other evidence to show that the family of L.P.L.Palaniappa Chettiar possessed ancestral properties, especially, ances....
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....chased by doing partnership business in Malaysia. He stated that apart from Ex.P4, there are documents to show the ancestral nucleus, but those documents have not been filed. 40. It is his evidence that the legal heirs of late Mr.Palaniappa Chettiar are entitled to share in the ancestral nucleus, but he did not make the legal heirs of late Mr.Palaniappa Chettiar as parties. He stated that the plaintiff's father Mr.Ramanathan Chettiar was carrying on businesses such as financing and looking after his father's estate. He is not aware as to how the father of Mr.Ramanatha Chettiar got these properties. He stated that there is an unregistered partition, in which, sons of late Mr.Palaniappa Chettiar and the legal heirs of one deceased son were parties. He is not aware about the source of income from which the grandfather of the plaintiff purchased item no.2 of the suit properties. He stated that the 5th item in the suit properties in the original plaint was struck off because he did not get the details of the property. He admitted that the amended plaint shows five items and he did not obtain any permission in the Court for including item no.5 of the suit properties. 41. He....
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....rnal uncle has share in the Pammal properties along with his father. 43. DW2 produced Exs.D18 to D22 and claimed that defendants 5 to 7 are entitled to 3/8 share in item no.1 of the suit properties reiterating the claim that this property was purchased by the plaintiff's grandfather and his grandfather in the ratio of 5/8 and 3/8. 44. From the oral and documentary evidence produced and the analysis and appreciation of the evidence, it is clearly evident that there is absolutely no iota of any evidence to show that the plaintiff's grandfather L.P.L.Palaniappa Chettiar had any ancestral properties, ancestral nucleus to show that he purchased suit properties or any other properties, especially item no.1 and 2 of the suit properties from ancestral nucleus. The source for the purchase of the properties in his name and in the name of his son P.L.Ramanathan @ P.L.Meenatchi Sundaram is from the partnership business he had with P.L.Palaniappa Chettiar as evidenced from Exs.P5 to P9, P11, P18 to P22 and also the evidence referred above especially the admitted evidence of PW1. Therefore, the suit laid on the basis that the suit properties were purchased from the ancestral nucleu....
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....L.Sethu Rajah standing in the books of accounts of the business/es wherein he was having capital interest or his son(s) and/or his daughter(s) is/are having capital interest equally amongst his four sons. Clause (g) deals with the residue of his estate other than the items referred in item (b), (d), (e) and (f). This residue has to be shared among his sons and the issues of his second son Palaniappan @ Thiyagarajan in the ratio of 1/4 share to each. Clause 5 made a condition that the distribution referred in clause 4 (g) is to be made after providing fund/s for payment of customary gifts and presents to his daughters referred in clause 4 (c). Clause 6 deals with the disposition of properties in case either or any of his sons die in his life time. 47. From this Will, it is clear that the interest in the partnership business and the properties movable and immovable, were bequeathed to his sons and daughters. There is absolutely no mention about the availability of properties which were acquired by him from his ancestors. It is a Will having no description of the properties to be shared. Similarly in Ex.D4 Will, there is no description of the properties sought to be disbursed. Thro....
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....were not properly taken care. Rs.2,00,000/- and jewelleries were also not given. 50. The plaintiff's claim that the first defendant had not acted in compliance to the conditions of the Will is one thing, and the challenge made to the very execution of the Will on the ground that the suit properties are ancestral joint family properties and therefore, the Will executed by their father P.L.Ramanathan @ P.L.Meenatchi Sundaram will bind only in respect of his share and will not extend to whole of the properties is another thing. There is unimpeachable evidence to show that share in item nos.1 and 2 of the suit properties was bequeathed to plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram through Ex.D11 Will. We have also seen that the properties bequeathed under D11 Will were self acquired properties of L.P.L.Palaniappa Chettiar . When the self acquired property of an individual is bequeathed to his son, son acquires the property only as self acquired property and not as ancestral property. This position is made clear in the judgment Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai reported in 2020 (16) 255. It is observed in the judgment as follows: ....
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....s of donor is held to be self-acquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family. 51. As per this judgment, the self acquired property gifted by a father to his son will not be treated as ancestral property, but only as a self acquired property. Therefore, this Court finds that shares which the plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram got under the Ex.D11 Will, would be treated as his self acquired property and in respect of his self acquired property, he is entitled to bequeath the property through a Will to his son, namely, the first defendant and the first defendant got the properties as self acquired properties. Therefore, through Ex.P4 Will, plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram had excluded his wife, plaintiff and second defendant from claiming any share in his properties, especially, item nos.1 & 2 of the suit properties. Thus, this Court finds that the plaintiff is not entitled to claim share in the suit properties claiming that the suit properties are the ancestral joint family properties and she is a ....
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.... item no.2 of the suit properties is subject to the right available to the owner of the property. Accordingly, this issue is answered. 55. Additional Issue No.1: We have already seen that all the legal heirs of P.L.Palaniappa Chettiar are not impleaded as parties to the suit. D5 to D8 as the legal heirs of D4 claim 3/8 share in item no.1 of the suit properties. However, other legal heirs of P.L.Palaniappa Chettiar, P.L.Thenammai and P.L.Palaniappan are not impleaded as parties to this suit. Now it is found that the claim of partition in item no.1 of the suit properties by defendants 5 to 7 is barred by the Prohibition of Benami Property Transactions Act, 1988. Therefore, the other legal heirs of P.L.Palaniappa Chettiar are not proper and necessary parties to this suit. Similarly, the sale in favour of the 8th defendant and subsequent construction of flats by the 9th defendant had taken place after the institution of the suit. Therefore, the impleadment of the buyers of the flats is not necessary for the reason that the sale transaction is hit by the principle of lis pendens and therefore, they are not proper and necessary parties. Accordingly, this issue is answered. 56. A....
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....She had to obtain a loan of Rs.28,00,000/- for the marriage of the plaintiff and had to spend Rs.2,50,000/- towards travelling expenses to USA during the delivery of the child by plaintiff and she had to spend about Rs.20,00,000/- for kidney stone treatment. All these allegations are denied by the first defendant in his reply and the written statement. The allegations in Ex.P5 notice are also reiterated in the plaint as well. It is seen from Ex.D11 Will that the powers, duties and responsibilities of the executors is not limited to a certain period. So far as the second defendant is concerned, her duties and responsibilities and powers as a executant/trustee continue till her death and the powers, duties and responsibilities of the other executants/trustees namely Valliappan @ Palaniappan @ Sinnavalieppan A/L Valliappa Chettiar continue even after the death of the second defendant R.M.Thennammai. Importantly, the properties in favour of the first defendant were bequeathed subject to the payment of debts, funeral debts, other testamentary expenses, estate debt and other duties and after payment of Rs.2,00,000/- to each of the daughters, namely, M.Sornam and R.M.Meenal. This is a con....