Madras High Court
Sadayappan vs Kandasamy (Died) on 18 August, 2021
S.A.(MD)No.189 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.189 of 2012
and
M.P.(MD)No.1 of 2012
1.Sadayappan
2.Periyasamy ... Appellants
Vs.
1.Kandasamy (Died)
2.Kali
3.Chandrasekaran
4.Kalarani (Died)
5.Shoba @ Nageshwari
6.Nallamal
7.Mohan
8.Keerthana
9.Sharmila ... Respondents
(R7 to R9 are brought on record as LRs of the
deceased fourth respondent vide order dated
11.08.2021 made in C.M.P.(MD)No.6446 of 2021
in S.A.(MD)No.189 of 2012 by GRSJ)
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree of the learned Additional District Judge (Fast
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S.A.(MD)No.189 of 2012
Track Court), Dindigul passed in A.S.No.13 of 2011 dated 03.12.2011 reversing
the judgment and decree of the learned Additional Subordinate Judge, Dindigul
passed in O.S.No.272 of 2008 dated 10.12.2010.
For Appellants : Mr.M.Rajaraman
For Respondents : Mr.H.Lakshmi Shankar
for R1 to R3, R5 & R7 to R9
Mr.D.Selvaraj for R6
JUDGEMENT
This second appeal arises out of a partition suit. The plaintiffs are the
appellants. The case of the plaintiffs is that the suit items numbering six are
either ancestral properties or were purchased out of ancestral nucleus. The
genealogy is under:-
GENEALOGY
KANDASAMY (D-1)
Sadayappan Periyasamy Kali Chandrasekaran Nallammal
P-1 P-2 D-2 D-3 D-6 (Sister)
(Wife) (Wife)
Kalarani Shobha @ Nageswari
(D4) (D5)
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S.A.(MD)No.189 of 2012
2.The plaintiffs and the defendants 2 and 3 are the sons born to the first
defendant/Kandasamy. Their sister/Nallammal was shown as sixth defendant.
Wife of the second defendant and the wife of the third defendant were shown as
defendants 4 and 5. According to the plaintiffs, suit items 5 and 6 were
purchased by the first defendant out of ancestral nucleus in the names of the
defendants 5 and 6. The plaintiffs' specific contention is that they are entitled
to 2/5th share in each of the suit items. Since the pre-suit notice issued to them
did not elicit a favourable response, they were constrained to file the aforesaid
suit. Based on the divergent pleadings, the trial Court framed necessary issues.
3.The first plaintiff examined himself as P.W.1 and Narayanasamy and
Rajkumar were examined as P.W.2 and P.W.3. Ex.A1 is the genealogy. Exs.A2
to A8 were marked on the side of the plaintiffs. The first defendant examined
himself as D.W.1, the fourth defendant examined herself as D.W.2 and the fifth
defendant examined herself as D.W.3. Exs.B1 to B19 were marked on the side
of the defendants.
4.After a consideration of the evidence on record, by judgment and
decree dated 10.12.2010, the trial Court granted preliminary decree allotting
2/5th share in favour of the plaintiffs. Aggrieved by the same, the defendants
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S.A.(MD)No.189 of 2012
filed A.S.No.13 of 2011 before the Additional District Court, Fast Track Court,
Dindigul. By the impugned judgment and decree dated 03.12.2011, the first
appellate Court set aside the judgment and decree passed by the trial Court and
allowed the appeal. Challenging the same, this second appeal came to be filed.
5.The second appeal was admitted on the following substantial question
of law:-
“Whether the lower appellate Court is correct in law in
rejecting the admissions in Ex.B9 regarding the existence of
ancestral property?”
6.The relationship between the parties is not in dispute. The plaintiffs
had come out with a specific case that the suit items are ancestral properties.
Admittedly suit items 5 and 6 stand in the name of the fourth and fifth
defendants. The plaintiffs would claim that suit items 1 to 4 are ancestral
properties and out of the income generated therefrom suit items 5 and 6 were
purchased by the first defendant in the names of his two daughters-in-law. The
learned counsel for the appellants would point out that the defendants
themselves have conceded that suit item 2 is an ancestral property. Of course,
in the reply notice sent by the defendants, the expression “ancestral property”
had been used in respect of suit item 2 but it is obvious from the records that
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S.A.(MD)No.189 of 2012
the suit item 2 was inherited by the first defendant/Kandasamy from his mother.
This is conceded by the plaintiffs in their plaint as well as in Paragraph No.5 of
the proof affidavit. When the property was inherited by the first defendant from
his mother, it is obviously his separate property and it cannot be amenable to
partition at the instance of the plaintiffs, when the father is very much alive.
Regarding suit item 1, the learned counsel for the plaintiffs would point that it
was settled in favour of the third defendant vide Ex.B9 on 28.05.2007. In the
said settlement deed, the first defendant/Kandasamy had admitted that the said
property was belonged to him ancestrally. On the basis of this recital found in
Ex.B9, the substantial question of law has been framed in this second appeal.
But as rightly pointed out by the learned counsel for the respondents, this
recital appears to have been a causal incorporation. It is because, the very same
document categorically refers to the parent sale deed dated 13.09.1991, which
was marked as Ex.B7. Suit item 1 was purchased by the first
defendant/Kandasamy from one Rajammal. In view of Ex.B7, one can easily
conclude that suit item 1 was purchased by the first defendant/Kandasamy. It is
futile to argue that it is an ancestral property merely on the strength of a recital
found in Ex.B9. I have no hesitation to answer the substantial question of law
against the appellants. Regarding suit items 3 and 4, the appellants have not
adduced any evidence to show that they were purchased out of ancestral
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S.A.(MD)No.189 of 2012
nucleus. The first appellate Court after a careful consideration of the evidence
on record had come to a conclusion that the plaintiffs have failed to discharge
the burden of proof cast on them. In exercise of jurisdiction under Section 100
of CPC, I do not propose to interfere with such a finding of fact.
7.Be that as it may, I have to take note of certain subsequent
developments. During the pendency of this second appeal, the father of the
plaintiffs namely., Kandasamy passed away. Their mother/Rajammal had also
passed away. The father/Kandasamy had executed a Will dated 02.03.2012 in
respect of the suit item 3 and some other items that have not been included in
the suit schedule. He had also executed a joint Will dated 21.03.2012 along
with wife in respect of suit items 2 and 4. The suit item 4 was jointly purchased
by the first defendant/Kandasamy and his wife/Rajammal. Under these Wills
only undivided shares have been bequeathed in favour of the grandsons born
through the four sons. The bequeath details are as follows:-
“(a) 1st Appellant Sadaiappan’s sons S. Balamurugam (1) and
S.Ramar(2) are entitled to ¼ share in item 2 and 4 of the suit
properties
(b) 2nd Appellant K.Periyasamy’s son Naryanan is entitled to
1/4th share in item 2 and 4 of the suit properties.
(c) 2nd respondent Kali’s son K.Mohan (7th respondent in this
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S.A.(MD)No.189 of 2012
second appeal ) is entitled to 1/4th share in items 2 and 4 of
the suit properties
(d) 3rd respondent K.Chandrasekaran’s son Minor Deeparaj
and any male children of 3rd respondent who may be born in
future are jointly entitled to 1/4th share in items 2 and 4 of the
suit properties.”
8.Taking note of these subsequent developments, even though I answer
the substantial question of law against the appellants, in order to effectuate the
noble intention of the deceased first defendant and his wife, the judgment and
decree of the first appellate Court is set aside and a preliminary decree is passed
as follows:-
“It is open to the legatees under the aforesaid Wills to
file final decree proceedings and take their shares by metes
and bounds.”
9.The second appeal is disposed of on these terms. No costs.
Consequently, connected miscellaneous petition is closed.
18.08.2021
Index : Yes / No
Internet : Yes/ No
ias
G.R.SWAMINATHAN, J.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.189 of 2012
ias
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.
To:
1.The Additional District Court,
Fast Track Court,
Dindigul.
2.The Additional Sub Court,
Dindigul.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.189 of 2012
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