Madras High Court
Lakshmamma vs N.Krishnan on 6 July, 2021
A.S.No.1045 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.1045 of 2012
and M.P.No. 1 of 2012
1. Lakshmamma
2. Savithramma
3. Jayamma
4. Baby
5. N.Narayanan
6. N.Ramamurthy ... Appellants
Vs
1. N.Krishnan
2. The Special Officer,
K.K.127, Hosur Primary Agricultural
Co-operative Credit Bank,
Hosur Taluk,
Krishnagiri.
3. The Sale Officer,
K.K.127, Hosur Primary Agricultural
Co-operative Credit Bank,
Hosur Taluk,
Krishnagiri.
4. The Deputy Registrar of Co-operative
Societies, Krishnagiri. ... Respondents
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 09.04.2012 made in O.S.No.67 of 2010 on
the file of the Principal District Judge, Krishnagiri.
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A.S.No.1045 of 2012
For Appellants : Mr.V.Nicholas
For R1, R3 & R4 : No appearance
For R2 : Mr.M.S.Palaniswamy
JUDGMENT
The Appeal suit is filed against the Judgment and Decree
dated 09.04.2012 made in O.S.No.67 of 2010 on the file of the Principal
District Judge, Krishnagiri.
2. For the sake of convenience, the parties are referred to
as per their ranking in the trial Court.
3. The brief case of the plaintiffs is that the plaintiffs and
the first defendant are siblings. Their father possessed the suit properties
and after his demise, the suit property was in possession and enjoyment
of all the siblings along with their mother. No partition was happened
between them and as such, the plaintiffs and the first defendant are
entitled to 1/7th share in the suit property. Hence, the suit.
4. The defendants 2 to 4 filed their written statement
stating that the plaintiffs 1 to 4 were married prior to 1980 and settled at
their respective matrimonial home and they were not co-parceners as per
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A.S.No.1045 of 2012
the Amendment Act 1/90 and 39/2005 of the Hindu Succession Act.
During the life time of their father, the first defendant and the plaintiffs 5
and 6 alone are the co-parceners and they constituted a Hindu Joint
Family. Therefore, the plaintiffs 5 and 6 and 1st defendant were having
1/3rd share in the suit property. While being so, the first defendant
borrowed a loan from the defendants 2 to 4 and as such, they have
initiated the sale proceedings in execution proceedings in E.P.No.2 of
2001-2002 in ARC No.14 of 2000 against the first defendant herein to
realise the award amount, which was passed for the misappropriation act
done by the first defendant in the Co-operative Bank. In the execution
proceedings, the defendants 2 to 4 had brought 1/3rd share of the first
defendant in the suit schedule property. The total extent of the suit
property is ad-measuring 10.26 acres, in which the defendants 2 to 4 had
brought for sale is 3.42 acres for auction. Therefore, the 2/3 share in the
suit property belongs to the defendants 5 and 6, which were not disturbed
in the execution proceedings.
5. On hearing the rival pleadings, the learned trial Judge
framed the following issues for determination in the suit :-
1. Whether the plaintiffs and the 1st defendant
each have 1/7th share in the suit properties ?
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A.S.No.1045 of 2012
2. Whether the suit properties were partitioned 5
years prior to the death of Nanja Reddy ?
3. Whether 5 and 6 plaintiffs and 1st defendant
alone are owners of the suit properties ?
4. Whether 1 to 4 plaintiffs are not the co-
parceners as per Act 1/1990 and 30/2005 ?
5. Whether the defendants 2 and 3 have not right
to have initiated auction proceedings against
share of plaintiffs ?
6. Whether the plaintiffs are entitled partition as
prayed for ?
7. To what relief the plaintiffs are entitled ?
6. On the side of the plaintiffs, they examined P.Ws.1
and 2 and marked Ex.A1. On the side of the defendants, they examined
D.W.1 and no exhibits were marked. On considering the oral and
documentary evidences adduced by the respective parties and on hearing
the submissions made by the learned counsel, the Court below dismissed
the suit. Aggrieved by the same, the present Appeal Suit is filed by the
plaintiffs.
7. The learned counsel for the appellants would submit
that admittedly, the plaintiffs 1 to 4 were married even before 1980 and
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A.S.No.1045 of 2012
as such they were not co-parceners as per Amendment Act 1/90 and Act
39/2005 of the Hindu Succession Act. Insofar as the plaintiffs 5 and 6
are the brothers of the first defendant herein and while their father was
alive, they were born and as such became as co-parceners and constituted
a Hindu Joint Family. Therefore, they were having 1/3 rd share in the suit
property each. The Court below while dismissing the suit had not
considered the share of the 5th and 6th plaintiffs and no share was allotted
to them.
8. Per contra, the learned counsel for the second
respondent would submit that the first defendant borrowed and
misappropriated the funds in the Co-operative bank and the enquiry was
conducted under Section 81. Thereafter, surcharge proceeding was
passed and as per award passed in ARC No.14/2000, they filed an
Execution Petition in E.P.No.2/2001-2002. Only 1/3rd share of the suit
property was brought for auction to realise the decree amount. The
remaining 2/3rd share of the suit property is very much available which
belong to the plaintiffs 5 and 6 herein. In fact, they already partitioned
the property between them during the life time of their father and after
partition, the plaintiffs 5 and 6 were allotted their respective shares and
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A.S.No.1045 of 2012
they were in possession and enjoyment of the respective shares. The
plaintiffs 1 to 4, only to maintain the suit, they simply added the plaintiffs
5 and 6 as the plaintiffs in the suit.
9. Heard, Mr.V.Nicholas, the learned counsel appearing
for the appellants and Mr.M.S.Palaniswamy, leanred counsel appearing
for the 2nd respondent and none appeared on behalf of respondents 1, 3
and 4.
10. The appellants are the plaintiffs and filed a suit for
partition seeking 6/7th share in the suit property. Admittedly, the
property is an ancestral property. The plaintiffs 1 to 4 are daughters and
the plaintiffs 5 and 6 and 1st defendant are sons born to one Nanja Reddy.
The plaintiffs 1 to 4 were already married even before 1980. Therefore,
even as per the Amendment Act 1/90 and 39/2005 of the Hindu
Succession Act, the plaintiffs 1 to 4 are not co-parceners. As such, they
are not entitled for any share in the suit property and the Court below
rightly dismissed the suit. As far as the plaintiffs 5 and 6 are concerned,
the Ex.A1 proved that the partition was effected even prior to 1984 and
UDR patta issued in the year 1985. Accordingly, the plaintiffs 5 and 6
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A.S.No.1045 of 2012
and the 1st defendant were allotted equal share in the suit property. In
fact, the first defendant committed an offence of misappropriation of
funds in the Co-operative bank and the surcharge proceedings award was
passed in ARC No.14 of 2000. On the strength of the award, the
defendants 2 to 4 filed an execution petition in E.P.No.2 of 2001-2002
and 1/3rd share in the suit property, which was already allotted to the first
defendant alone was brought for sale. The total extent of suit property
ad-measuring 10.26 acres in which, the only 3.42 acres was brought for
sale to realise the decree amount. Insofar as, the 2/3 rd share of the suit
property ad-measuring 6.83 acres which were already allotted to the
plaintiffs 5 and 6 is concerned and they were in possession and
enjoyment of the respective shares. Therefore, the Court below rightly
dismissed the suit. This Court finds no illegality or infirmity in the order
passed by the Court below.
11. In the result, the Appeal Suit is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
06.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lpp
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A.S.No.1045 of 2012
G.K.ILANTHIRAIYAN, J.
lpp
To
The Principal District Judge,
Krishnagiri.
A.S.No.1045 of 2012
06.07.2021
https://www.mhc.tn.gov.in/judis/
