D2 HAD NO RIGHT TO SETTLE THE ENTIRE PROPERTY ON HIS WIFE, WHEN THE 1ST DEFENDANT, WHO IS A COPARCENER WAS ALREADY IN EXISTENCE. THE SETTLEMENT DEEDS DATED 09.12.1985 AND 11.12.1985 ARE INVALID.

D2 HAD NO RIGHT TO SETTLE THE ENTIRE PROPERTY ON HIS WIFE, WHEN THE 1ST DEFENDANT, WHO IS A COPARCENER WAS ALREADY IN EXISTENCE. THE SETTLEMENT DEEDS DATED 09.12.1985 AND 11.12.1985 ARE INVALID.

Citation
CDJ 2017 MHC 8475

Advocate.chitra sampath

Head Note

Code of Civil Procedure, 1908 - Order IV Rule 1 – Hindu Succession (Amendment) Act, 2005 [Act 39(2005)] - Section 6 - Partition – Injunction - Plaintiffs sought for declaration that 3 settlement deeds were invalid and for partition and separate possession of their 1/5th share each in suit property -

Court held - Once it was found that property was inherited by younger son, from his father-original owner, it assumed character of ancestral property and once son was born to this younger son, that son would also have right by birth to suit property thus making his father owner with restricted rights - Therefore, upon coming into force of the Act, Plaintiffs would become coparceners along with their father viz., Defendant No. 2 and their brother Defendant No. 1 in respect of property, that was, held by Defendant No.2 – In view of provisions of amended Section 6 of the Act, Settlement Deed executed by Defendants 2 and 3 in favour of Defendant No. 1 could not be upheld and was invalid – Suit being one for partition and declaration that Settlement Deeds were invalid, as they have been executed by person who was incompetent, it could not be technically pleaded that suit was barred by limitation - Once it was found that property was ancestral property and Plaintiffs would become coparceners, possession of Defendants was deemed to be possession on behalf of Plaintiffs also - Plaintiffs became coparceners on and from date of coming into force of the Act and were entitled to seek partition - ½ share that devolved on Defendant No.2 under Section 6 of the Act in his capacity as coparcener alone could be treated as ancestral property in his hands - Plaintiffs would be entitled to 1/5th share of ½ share which was in hands of Defendant No.2 as ancestral property - Therefore, Plaintiffs would be entitled to only 1/10th share each in suit property - There was no necessity for granting prayer for injunction – Petition disposed of.

(Paras 20,24,29,30,32,43,44,45)

Cases Referred:
Additional Commissioner Income Tax, Madras Vs. P.L.Karuppan Chettiar reported in AIR 1979 Madras 1
Commissioner of Wealth Tax, Kanpur vs. Chander Sen reported in AIR 1986 SC 1753
Uttam v. Saubhag Singh and others reported in 2016 2 CTC 306(SC)
M.Krishnamoorthy v. K.Pondeepankar. and others reported in 2017 (3) CTC 170

Comparative Citation:
2018 (3) MLJ 32,


Judgement

Madras High Court

Selvi Duraiswamy vs R.Santhanam