Madras High Court
S.Vijayakumar vs V.Amirthavalli ... 1St on 11 August, 2021
1 S.A.(MD)NO.550 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.550 of 2014
1. S.Vijayakumar
2. S.Elangiyam
3. S.Sivanandham ... Appellants/Respondents 1 to 3/
Plaintiffs
Vs.
1. V.Amirthavalli ... 1st Respondent/Appellant/
2nd Defendant
2. K.Subramanian ... 2nd Respondent/4th Respondent/
1st Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree dated 30.03.2010
made in A.S.No.273 of 2008 on the file of the Principal District
Judge, Tiruchirappalli, reversing the judgment and decree
dated 22.09.2008 made in O.S.No.111 of 1999 on the file of
the Principal District Munsif cum Judicial Magistrate, Lalgudi.
For Appellants : Ms.J.Maria Roseline
For R-1 : Mr.H.Lakshmi Shankar
For R-2 : No appearance.
***
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2 S.A.(MD)NO.550 OF 2014
JUDGMENT
The plaintiffs in O.S.No.111 of 1999 on the file of the
Principal District Munsif-Judicial Magistrate, Lalgudi, are the
appellants in this second appeal.
2. The suit was for partition. According to the
plaintiffs, the suit property measuring 55 cents out of the total
extent of 1.10 cents and forming part of a larger extent
belonged to their great grandfather Murugan. Murugan had
three sons, namely, Muthusamy, Parimanam and Kandhasamy.
The suit property measuring 1.10 cents was allotted to
Muthusamy and Kandhasamy. Kandhasamy was entitled to 55
cents. The first defendant Subramanian is the son of
Kandhasamy. The plaintiffs are the children born to
Subramanian. According to the plaintiffs, their father
Thiru.K.Subramanian illegally sold 55 cents of the suit
property along with the son and grandson of his brother
Muthusamy in favour of the second defendant Amirthavalli on
30.05.1990. According to the plaintiffs, the property is an
ancestral property and that therefore, the alienation made by
the father is not binding on them.
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3 S.A.(MD)NO.550 OF 2014
3. The first defendant remained ex-parte. The
purchaser Amirthavalli filed her written statement
controverting the plaint averments. Based on the rival
pleadings, the trial Court framed the necessary issues. The
first plaintiff Vijayakumar examined himself as P.W.1 and
marked Ex.A.1 to Ex.A.7. The second defendant Amirthavalli
examined herself as D.W.1. Ex.B.1 to Ex.B.4 were marked.
After consideration of the evidence on record, the trial Court
granted preliminary decree granting 3/4th share in favour of
the plaintiffs. Aggrieved by the same, the purchaser/second
defendant filed A.S.No.273 of 2008 before the Principal
District Judge, Tiruchirappalli. By the impugned judgment and
decree dated 30.03.2010, the appeal was allowed and the
judgment and decree passed by the trial Court was set aside
and the suit was dismissed. Challenging the same, the second
appeal came to be filed.
4. Though the second appeal was filed as early as in
the year 2014, only notice was ordered and it had not been
formally admitted till date.
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4 S.A.(MD)NO.550 OF 2014
5. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to formally admit the
second appeal, after framing substantial questions of law that
arise for determination. She would point out that the Courts
below having correctly found that the character of the
property is ancestral, ought to have held that the alienation
made by the first defendant was not binding on the plaintiffs.
She would also point out that the recitals in the sale deed
indicate that the purchaser as well as the vendor/first
defendant proceeded on the basis that the property was the
self-acquired property of the first defendant. The purchaser
during the course of her testimony conceded that she
purchased the property on the premise that it was a
self-acquired property of the vendor. She would also contend
that the first appellate Court had erroneously placed the
burden of proof on them to show that the alienation was for
family necessity. She would also state that there was nothing
to show that the alienation of the property was really
warranted. She therefore called upon this Court to frame
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5 S.A.(MD)NO.550 OF 2014
substantial questions of law on the lines indicated above and
answer them in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
6. Per contra, the learned counsel appearing for the
contesting respondents submitted that the impugned
judgment and decree do not call for any interference.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. The Courts below have concurrently found that the
suit property is ancestral in character. Now the only question
is whether the first defendant K.Subramanian, father of the
plaintiffs was entitled alienate the same. The learned counsel
appearing for the contesting respondent relied on the decision
reported in AIR 1967 SC 574 (Radhakrishnadas V. Kaluram)
and AIR 1997 SC 1686 (Sunder Das V. Gajananrao) for the
proposition that the Kartha of the joint Hindu family is very
much entitled to alienate the ancestral property for family
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6 S.A.(MD)NO.550 OF 2014
necessity. Of course if the alienation is otherwise vitiated,
certainly it can be avoided. But then, the Hon'ble Division
Bench of Madras High Court in the decision reported in (1976)
2 MLJ 134 (Santhana Venugopala Krishnan and Others V. K.V.
Venugopal and Others) held that the burden to show that the
alienation was not for family necessity would be only on the
other members of the coparcenery impeaching the sale.
9. I went through the plaint averments. Except stating
that the suit property is an ancestral property and the
alienation made by the father is not binding on them, there is
no other averment. No ground of challenge is set out. The
elementary pleadings are absent. I hold that the first
appellate Court has correctly approached the issue. No
substantial question of law arises for consideration. This
second appeal is dismissed. No costs.
11.08.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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7 S.A.(MD)NO.550 OF 2014
To:
1. The Principal District Judge,
Tiruchirappalli.
2. The Principal District Munsif cum
Judicial Magistrate, Lalgudi.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 S.A.(MD)NO.550 OF 2014
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.550 of 2014
11.08.2021
https://www.mhc.tn.gov.in/judis/
