Meenakshi vs E.Ramesh Kumar
2021 Latest Caselaw 24757 Mad

                                                                          S.A.Nos.447 & 448 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 16.12.2021

                                                   CORAM:

                                  THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                           S.A.Nos.447 & 448 of 2017
                                           and CMP No.11092 of 2017

                1. Meenakshi
                2. Palanisamy                            ... Appellants in both Second Appeal

                                                      Vs.
                E.Ramesh Kumar                         ... Respondent in both Second Appeal
                PRAYER in S.A.No.447 of 2017: The Second Appeal filed under Section 100
                of the Civil Procedure Code against the judgment and decree dated 19.09.2016
                made in A.S.No.68 of 2013 on the file of the Subordinate Judge's Court,
                Namakkal partly allowing & partly reversing the judgment and decree dated
                20.06.2013 made in O.S. No.628 of 2008 on the file of Additional District
                Munsif Court, Namakkal.


                PRAYER in S.A.No.448 of 2017: The Second Appeal filed under Section 100
                of the Civil Procedure Code against the judgment and decree dated 20.06.2013
                made in O.S.No.628 of 2008 on the file of Additional District Munsif Court,
                Namakkal confirming the Judgment and decree dated 19.09.2016 made in
                A.S.No.77/2013 on the file of Subordinate Judge's Court, Namakkal confirming
                the Judgment and decree.
                In both Appeals

                1/9
https://www.mhc.tn.gov.in/judis
                                                                                  S.A.Nos.447 & 448 of 2017

                                          For Appellant      : Mr.M.Aswin Kumar
                                          For Respondents    : Mr.T.Dhanya kumar
                                                         -----

COMMON JUDGMENT Aggrieved over the concurrent finds of the Courts below, the

defendants have preferred the Second Appeals.

2. Suit for declaration of title and permanent injunction.

3. The suit property originally belongs to the family of Kuppusamy

Gounder. The said Kuppusamy Gounder had two children, namely, Rajendran

and Meenakshi, the first defendant herein. The said Kuppusamy Gounder and

Rajendran have partitioned the property between themselves on 21.04.2004 and

thereafter, the said Rajendran, son of Kuppusamy Gounder, had settled the

properties in favour of his father Kuppusamy Gounder. On 16.04.2008, the

plaintiff purchased the property for a valid consideration and he is in the

possession of the same. Whileso, one day prior to the sale of the suit property,

i.e., on 15.04.2008, the first defendant, daughter of Kuppusamy Gounder,

claimed a share in the property sold, 1/4th in the undivided share in favour of the

second defendant. Therefore, the plaintiff issued a legal notice on 13.05.2008,

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

but the defendants have failed to reply to the same. Hence the suit.

4. The defendant, denied the plaint averments that the properties are joint

family properties and contended the first defendant has a share in the same.

The properties purchased by Kuppusamy Gounder was also put in the common

hotchpot and it was treated as common joint family properties. Hence, the

partition deed as well as settlement deed dated 21.04.2004 and 23.04.2004 are

not valid documents. The first defendant got married in the year 1989 and

therefore, she is entitled to her father's property by virtue of TN Act 1 of 1990.

Whereas, her sister Kamalam, who got married prior to 1990, is not entitled to

any right over the property. Therefore, the defendants would pray for the

dismissal of the suit.

5. The trial Court framed the appropriate issues:

(1) Whether the plaintiff purchased the

properties exclusively belonged to the one

Kuppusamy?

(2) Whether the plaintiff is entitled for

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

relief of declaration as prayed as ?

(3)Whether the defendant had 1/4th share

in the suit property?

(4) Whether the court fee paid is proper?

(5) To what other relief the plaintiff is

entitled to?

6. Relying on Ex.A8, the marriage receipt of the first defendant showing

that the marriage was solemnised on 10.09.1981, the trial Court decreed the

suit. The evidence of DW1, who is the husband of the first defendant, without

any documentary evidence to prove that the marriage had happened in the year

1989, the trial Court rejected the claim of the first defendant. However, the

prayer for permanent injunction was rejected and thus, the suit was partly

decreed in favour of the claimant.

7. Aggrieved over the same, both the parties have preferred the Appeal.

8. The first appellate Court confirmed the decree and judgment of the

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

trial Court, dismissing the Appeal filed by the defendants in the suit. On the

appeal preferred by the plaintiff, the decree of the trial Court is set aside and

injunction was granted in favour of the plaintiff. Aggrieved over the same, the

defendants have preferred the above Second Appeal.

9. This Court on 24.07.2017, admitted the Second Appeal on the

following substantial questions of law:

“(a) Are the Courts below right in holding that the 1st Appellant has no right over the property in view of her marriage alleged to have been conducted on 10.09.1981 vide Marriage receipt dated 08.09.1981 overlooking the evidence of DW-1 who had categorically deposed that the marriage had happened only on 25.03.1989 and that she has a share in the property by virtue of T.N. Act 1 of 1990?

(b) Are the Courts below right in decreeing the suit in favour of the respondent overlooking the fact that the settlement deed (Ex.A-7) executed with respect to undivided share in the joint family property is invalid in law

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

and that the respondent obtaining title on the basis of the said void settlement derives good title?

10. The learned counsel for the appellant would contend that in view

of the latest judgment of the Hon'ble Supreme Court in 2020 9 SCC Page 1

(Vineeta Sharma Vs. Rakesh Sharma & Ors), the daughters are entitled to

share in the ancestral property and therefore, the judgment of the Courts below

are liable to be set aside.

11. On a perusal of the materials placed before the Court goes to

show that in Ex.A8, it was proved that the daughter, the first defendant got

married as early as 10.09.1981 and there is no contrary evidence produced by

the first defendant to disprove the same. Thereafter, on 21.04.2004, Ex.A6

partition happened between Kuppusamy Gounder and his son Rajendran. The

married daughter Kamalam and Meenakshi were excluded and the said partition

was not questioned by anybody. On 23.04.2004, vide Ex.A7, the said

Rajendran, brother of the first defendant, settled his share of the property

derived through partition, in favour of his father Kuppusamy Gounder. The

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

said Kuppusamy Gounder was in possession and enjoyment of the property till

the alienation of the same. It is also pertinent to note that the said Kuppusamy

Gounder had also purchased the same property out of his own income

independently, but, the first defendant has not shown the properties that

belongs to the joint family and the property that belongs to her was acquired by

his father independently, but would contend that all the properties are joint

family properties. However, the properties was sold to the respondent/plaintiff

herein, on 16.04.2008, as such the properties absolutely belongs to Kuppusamy

Gounder. Hence, the sale of the undivided share of the property by the first

defendant made on 15.04.2008 is without any right, title and interest.

Therefore, I do not find any discrepancies in the findings of the first appellate

Court. The partition and settlement deeds which were of the year 2004 and

were concluded proceedings before the amendment. Thus, the property has

become absolute property of Kuppusamy Gounder with full right of alienation.

Hence, the sale made in favour of the plaintiff is a valid sale in the concluded

proceedings.

12. Further, the question of law No.1 is that whether the benefit of TN

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

Act 1/1990 is available to the first defendant concerned. It is well proved that

the marriage of the first defendant was solemnized as early as 10.09.1981 as

evidenced by Ex.A8. Therefore, the claim of the benefit under TN Act 1 of

1990 was not available to the appellant/first defendant. Hence, the

consequential sale made by the appellant/first defendant is not valid as rightly

found by the Courts below. Thus, the substantial questions of law are answered

against the appellants and the Second Appeals stand dismissed.

13. Accordingly, the Second Appeals stand dismissed. There shall be

no order as to costs. Consequently, connected Miscellaneous Petition is closed.

16.12.2021 Index : Yes/No Internet : Yes sli

To

1. The Subordinate Court, Namakkal

2. The Additional District Munsif Court, Namakkal.

https://www.mhc.tn.gov.in/judis S.A.Nos.447 & 448 of 2017

M. GOVINDARAJ, J.

sli

S.A.Nos.447 & 448 of 2017

16.12.2021

https://www.mhc.tn.gov.in/judis