Madras High Court
V.Kaliaperumal vs V.Govindan on 2 August, 2021
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.
1/10
https://www.mhc.tn.gov.in/judis/
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
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
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
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
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
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.
https://www.mhc.tn.gov.in/judis/
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
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.
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
S.A.No.45 of 2019
02.08.2021
https://www.mhc.tn.gov.in/judis/
