Madras High Court
Subbiahgounder (Died) vs Mayilthai ...1St on 27 August, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.474 of 2014
and
MP(MD) Nos.1 & 2 of 2014
1.Subbiahgounder (died)
2.Velusamy ... Appellants/Appellants/Defendants 5 & 6
3.Kannamma
4.Ramachandran
5.Dhanalakshmi
6.Tamil Selvi ... Appellants
(Appellants 3 to 6 were brought on record as
LRs of the deceased first appellant vide order
dated 23.08.2021)
vs.
1.Mayilthai ...1st respondent/1st respondent/plaintiff
2.Muthammal
3.P.Perumal
4.P.Kanakaraj
5.Ramuthay ... Respondents 2 to 5 / Respondents 2 to 5
Defendants 1 to 4
https://www.mhc.tn.gov.in/judis/
1/7
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the judgment and decree passed in A.S No.23 of 2007
dated 30.09.2009 by the Principal District Court, Dindigul and confirm
the judgment and decree of the Principal Sub Court, Dindigul in O.S No.
387 of 2002 dated 26.03.2007.
For Appellants : Mr.L.Shaji Chellan
For Respondents : Mr.S.Anand Chandrasekhar
for M/s.Sarvabhauman Associates
for R1
No appearance for R2 to R5
JUDGMENT
This second appeal arises out of a partition suit. The first
respondent herein, namely, Mayilthai filed O.S No.387 of 2002 before the
Principal Sub Court, Dindigul. The case of the plaintiff was that the suit
items which are three in number are self acquired properties of her
father Late Mookan @ Perumal Gounder and hence amenable to
partition. There is no dispute regarding the original ownership of the
suit properties. Mookan @ Perumal Gounder passed away on
05.04.1992. He died intestate leaving behind his wife Muthammal, sons
Perumal and Kanagaraj and daughters Mayilthai and Ramuthai. The
properties were partitioned between brothers, namely, Perumal and
Kanagaraj in the year 1997. The share allotted to Kanagaraj in Item 1
agricultural land was purchased by the appellants 5 and 6 herein under
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a registered sale deed dated 11.03.2002 (Ex.A11). In the partition that
took place between the two brothers, sisters were totally excluded.
Seeking 1/5th share in the suit properties, Mayilthai, the first respondent
herein filed the said suit. The defendants filed written statement
controverting the plaint averments. Based on the divergent pleadings,
the trial court framed the necessary issues. The plaintiff examined
herself as PW.1 and three other witnesses were examined on her side.
Exs.A1 to Ex.A11 were marked. The fifth defendant/subsequent
purchaser examined himself as DW.1 and marked Exs.B1 to B4. The
other defendants did not adduce any evidence. The trial court vide
judgment and decree dated 26.03.2007 granted preliminary decree
declaring the plaintiff's 1/5th share in the suit properties. Aggrieved by
the same, the subsequent purchasers, namely, the defendants 5 and 6
filed A.S No.23 of 2007 before the Principal District Judge, Dindigul.
The first appellate court vide judgment and decree dated 30.09.2009
confirmed the decision of the trial court and dismissed the appeal.
Challenging the same, this second appeal came to be filed. The second
appeal was admitted on the following substantial questions of law :
“a)Whether the courts below are justified in
not considering Ex.B2 Partition Deed ?
b)Whether the first respondent is entitled to
invoke the 2005 Amendment Act in her favour as the
properties were divided and disposed of prior to
20.12.2004 ?”
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2.Heard the learned counsel on either side.
3.Admittedly, Ex.B2 partition deed was executed between the
brothers, namely, Perumal and Kanagaraj/D2 and D3. The sisters were
not parties to the partition. Therefore, it will not bind the plaintiff's right
in the suit properties. This is more so because the suit properties were
the self acquired properties of the father Mookkan @ Perumalgounder.
The courts below rightly declined to take Ex.B2 into account. Hence, the
first substantial question of law is answered against the appellants. The
amendment made to Section 6 of the Hindu Succession Act in the year
2005 had been authoritatively interpreted by the Hon'ble Supreme Court
in Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1. Even if the
case of the defendants were to be accepted, still, in view of the aforesaid
judgment, the plaintiff's share in the suit properties will be on par with
the brothers. In any event, this question does not arise in view of the
character of the suit properties. Therefore, the very framing of the
second substantial question of law appears to be incorrect.
4.The learned counsel for the plaintiff informed the court that
the second appeal was filed with delay. In the meanwhile, final decree
proceedings had got concluded. It appears that what was purchased by
the appellants was to be adjusted to some extent against the share
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allotted to their vendor (D3 Kanagaraj). Since the learned counsel
appearing for the appellants would strongly submit that since the
appellants were bonafide purchasers, their interests deserve higher
protection. He called upon this court to take note of the subsequent
developments, it is stated that the mother Muthammal had also passed
away.
5.This second appeal had been formally admitted and hence it
is a continuation of the original proceedings. The preliminary decree has
not yet become final. The mother had died intestate. Therefore, each of
the surviving legal heirs namely, the plaintiff, the brothers Perumal and
Kanagaraj and the other sister Ramuthai will be entitled to 1/4 th share
in the suit properties. The preliminary decree passed by the courts
below is modified accordingly. The plaintiff will have 1/4th share in the
suit properties. The very same modification will enure in favour of the
other respondents also. Therefore, the appellants' vendor Kanagaraj will
also be entitled to 1/4th share in the suit properties. Hence, equities will
have to be appropriately worked out. I permit the appellants herein to
file supplementary final decree petition before the trial court so that
what was purchased by them can be better adjusted against the 1/4th
share now allotted to their vendor Kanagaraj.
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6.The second appeal is disposed of on these terms. No costs.
Consequently, connected miscellaneous petitions are closed.
27.08.2021
Index : Yes/No
Internet : Yes/No
skm
To
1.The Principal District Judge, Dindigul.
2.The Principal Sub Judge, Dindigul.
2.The Section Officer, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA(MD)No.474 of 2014
and
MP(MD) Nos.1 & 2 of 2014
27.08.2021
https://www.mhc.tn.gov.in/judis/
