IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.45 of 2019
V.Kaliaperumal ...Appellant
Vs.
1.V.Govindan
2.K.Dhanasekaran
3.K.Mahendran
4.N.Pandurangan ...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 20.07.2017 passed in
A.S.No.22 of 2016, Additional Subordinate Judge, Tindivanam
confirming the dismissal of the suit by Judgement and Decree in
O.S.No.177 of 2011 dated 16.12.2015 passed by the Principal District
Munsif, Tindivanam.
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For Appellant : Mr.P.K.Ganesh
For Respondents : Mrs.R.Sripriya
for Mr.V.Raghavachari
JUDGMENT
The plaintiff in a suit for partition is the appellant before this Court. The suit O.S.No.177 of 2011 was instituted by the plaintiff before the Principal District Munsif, Tindivanam for a partition and separate possession of his half share in the suit schedule property. The parties are referred to in the same litigative status as before the Trial Court.
2. The case of the plaintiff is that the suit properties are the ancestral properties of his father, Veerasamy. Apart from the plaintiff the said Veerasamy had a daughter and a son, the 1st defendant in the suit. The defendants 2 and 3 are the sons of the 1st defendant and the 4th defendant is the husband of the plaintiff's sister to whom a half share in 2/10 https://www.mhc.tn.gov.in/judis/ the suit property had been sold by the plaintiff.
3.The case of the plaintiff is that the 4th defendant had manipulated his father-in-law i.e., plaintiff's father to sell a half share in the suit well situate in the 1st item of the suit schedule properties to him under a sale deed dated 23.06.1997. Since the 4th defendant has purchased the plaintiff's share he has been impleaded as a defendant. After the execution of the sale deed, on the very next day the 1st defendant had exerted his undue influence on his father to execute a Will in favour his children, defendants 2 and 3. The plaintiff's father had executed a settlement deed in favour of the plaintiff on 02.03.1983 settling some properties on him and the settlement deed was made only on condition that the plaintiff was to settle the debts of his father. The plaintiff has also accordingly discharged these debts.
4.On 12.02.2001, the father Veerasamy passed away. Despite several requests made by the plaintiff, the 1st defendant had not come forward to effect the partition and therefore the plaintiff has been 3/10 https://www.mhc.tn.gov.in/judis/ constrained to file the suit in question.
5.The 1st defendant had filed a written statement inter alia contending that though the plaintiff had filed a suit for partition he has not impleaded the other children of Veerasamy, namely, daughters Yasodha, Kaliammal, Dhanalakshmi, Porkilai and Alamelu. The settlement in favour of the plaintiff was only on the basis of the family arrangement and the plaintiff had taken possession of the same and has been in enjoyment of the properties. The 1st defendant has also raised a query as to how the plaintiff who claims the suit property as ancestral properties could claim title through settlement deed executed by Veerasamy.
6.The 1st defendant would contend that after his marriage, the plaintiff had left the family and had expressed his desire to move out of the Joint family. He had therefore asked for a share of his property. It is for this reason that the father Veerasamy had executed a settlement deed dated 02.03.1983. He has also sold the property to the 4th 4/10 https://www.mhc.tn.gov.in/judis/ defendant and his son Viswabharathy. The sale consideration was thereafter invested by him in his business and for the purchase of a house. Therefore his contention that the suit property have not been partitioned is absolute falsehood. The plaintiff after getting his share in that property now wants to stake a claim in property that has been bequeathed by his father on the children of the 1st defendant, namely, 2nd and 3rd defendants. The 1st defendant would submit that the properties had already been partitioned amongst the sharers and nothing remained to be partitioned.
` 7.The Trial Court dismissed the suit and the matter was taken up on appeal to the Additional Subordinate Judge, Tindivanam, in A.S.No.22 of 2016. The learned appellate Judge had also dismissed the appeal and confirmed the Judgement and Decree of the Trial Court. It is challenging the said Judgement and Decree that the appellant is before this Court.
8.The matter has not been admitted and only notice has been 5/10 https://www.mhc.tn.gov.in/judis/ ordered. The defendants / respondents have also entered appearance through counsel.
9.Mr.P.K.Ganesh, learned counsel appearing on behalf of the plaintiff / appellant argued that the settlement had been effected only on the condition that the plaintiff settles the debts of the father which he has done so as evidenced by Ex.A.2 and Ex.A.13. He would submit that the suit properties remain undivided and therefore the same has to be partitioned between the plaintiff and the 1st defendant.
10.Mrs.R.Sripriya, learned counsel appearing on behalf of the defendants / respondents would contend that the plaintiff has himself admitted the Will and also the fact that the properties are not joint family properties. Further, the plaintiff has not let in any evidence to show that the suit properties have been purchased out of the joint family nucleus. The Will which has been marked as Ex.A.4 has been proved in the manner known to law and the sister of the plaintiff and the 1st defendant, who had adduced evidence as D.W.2 has talked about 6/10 https://www.mhc.tn.gov.in/judis/ the Will and proved its execution.
11.She would further argue that the plaintiff by accepting the settlement deed severed all his ties with the joint family and after so many years seeks to stake claim in the suit property. She would submit that the Court below have rightly dismissed the suit and the appeal. She would therefore pray that the Second appeal also be dismissed.
12.Heard the counsels and perused the records.
13.The plaintiff who has come forward with a case that the properties are ancestral properties of his father has not explained as to why a portion of the properties had been settled on him. The Courts below have rightly held that the plaintiff by accepting the settlement deed has severed his ties with the joint family of which he was a coparcener. The evidence would show that the plaintiff had been enjoying the properties settled on him absolutely and he had sold the property to the 4th defendant on 17.04.1997.
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14.The plaintiff as P.W.1 has also admitted that the properties remaining after the settlement deed in his favour are being enjoyed by his brother, the 1st defendant. He has also admitted the fact that the Will has been executed by his father in favour of the 1st defendant's children. The execution of the settlement deed as well as the Will was only pursuant to a family arrangement entered into between the plaintiff, his father and the 1st defendant and the family arrangement finds mention in Ex.B.1, Will.
15.The Will has been admitted by the sister of the plaintiff and the 1st defendant, who had been examined as D.W.2. It is therefore clear that pursuant to family arrangement the plaintiff had been allotted his share under Ex.A.1 and the other half has been allotted to the children of the 1st defendant under Ex.A.4, Will. The plaintiff has not been able to prove that the properties continued to be joint family properties and that he was entitled to a share in the same. The plaintiff after enjoying the property allotted to him now seeks to claim a share in 8/10 https://www.mhc.tn.gov.in/judis/ the other half bequeathed on the children of his brother, the 1st defendant.
16.Therefore, the plaintiff has not made out any question of law much less a substantial question of law warranting interference of this Court under Section 100 of the Code of Civil Procedure. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs.
02.08.2021
Index : Yes/No
Internet : Yes/No
kan
To
1.The Additional Subordinate Judge, Tindivanam.
2.The Principal District Munsif, Tindivanam.
9/10 https://www.mhc.tn.gov.in/judis/ P.T. ASHA, J, kan S.A.No.45 of 2019 02.08.2021 10/10 https://www.mhc.tn.gov.in/judis/