Madras High Court
Valliyammal vs Sivagami on 6 July, 2021
A.S.No.242 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.242 of 2018
and
C.M.P.No.4223 of 2018
1.Valliyammal
2.Murugan
3.Sakthi ... Appellants
Vs.
Sivagami ... Respondent
PRAYER: Appeal Suit filed under Section 96 of CPC against the
judgment and decree dated 07/12/2017 in O.S.No.91 of 2016 on the file
of II Additional District Court, Salem.
For Appellants : Mr.R.Subramanian
For Respondent : Mr.S.Kaithamalai Kumaran
JUDGMENT
The Appeal suit is filed against the judgment and decree
dated 07/12/2017 passed in O.S.No.91 of 2016 on the file of II
Additional District Court, Salem.
https://www.mhc.tn.gov.in/judis/
A.S.No.242 of 2018
2.For the sake of convenience, the parties are referred to as
per their rankings in the trial Court.
3.The case of the plaintiff is that the first defendant is the
mother and the second defendant is the brother of the plaintiff. The third
defendant is the wife of the second defendant. The suit property and the
other properties originally belonged to her grandfather and after his
death, his sons viz., Palaniyappan, the father of the plaintiff and
Chinnannan inherited the said properties. Thereafter, patta has been
issued separately recognizing their possession and enjoyment of their
respective properties. The father of the plaintiff had been in possession
and enjoyment of the suit property and he died intestate leaving behind
the plaintiff and the first and second defendants. Therefore, in the suit
property during the life time of her father, she was entitled to have 3/9
shares and the defendants 1 & 2 were entitled to have 3/9 shares. After
the death of her father, his 3/9 shares devolved upon the plaintiff and the
defendants 1 & 2. Therefore, the plaintiff is entitled to have 4/9 shares.
Hence, the suit for partition.
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A.S.No.242 of 2018
4.Resisting the same, the defendants filed their written statement
stating that after the death of Palaniappan, the father of the plaintiff and
the second defendant and husband of the first defendant, the plaintiff
received a sum of Rs.2,00,000/- towards relinquishment of her share in
the suit property and also for getting compassionate appointment to be
provided in favour of the second defendant. Only thereafter, the patta was
granted in favour of the second defendant. The plaintiff's marriage was
organized in the year 1987 and suppressing the receipt of Rs.2,00,000/-
for relinquishment of her share, the present suit was filed for partition.
Since the second defendant became the absolute owner of the suit
property, he had executed a settlement deed dated 27.08.2016 in favour
of the third defendant. Therefore, prayed for dismissal of the suit.
5.On hearing the rival pleadings, the learned trial Judge framed the
following issues for determination of the suit :-
“1.Whether the alleged release deed
by the plaintiff after receiving Rs.2 lakhs from
the 2nd defendant is true?
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A.S.No.242 of 2018
2.Whether the settlement deed dated
27.08.2016 is valid and acted upon?
3.Whether the plaintiff is entitled to get
preliminary decree for partition as prayed for?
4.Whether the plaintiff is entitled to get
permanent injunction as prayed for?
5.To what relief?”
6.On the side of the plaintiff, she examined PWs 1 and 2 and
marked Exs.A1 to A5. On the side of the defendants, they examined
DWs 1 to 3 and marked Exs.B1 to B11.
7.On considering the oral and documentary evidence adduced by
the respective parties and the submission made by both the learned
counsel, the trial Court decreed the suit as prayed for. Aggrieved by the
same, the present Appeal suit has been preferred by the defendants.
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A.S.No.242 of 2018
8.The learned counsel appearing for the defendants submitted that
the plaintiff failed to plead that the suit property is the ancestral property.
Even according to the plaintiff, the suit property originally belonged to
her grandfather and after the death of her grandfather, it devolved upon
his two sons viz., the plaintiff's father and his brother. They had been in
the possession and enjoyment of the suit property and patta had also
been issued separately in favour of their respective shares. In fact, after
the demise of the plaintiff and the second defendant's father, the plaintiff
received a sum of Rs.2,00,000/- for relinquishment of her share in the
suit property and also for getting compassionate appointment to the
second defendant. He further submitted that the suit property is the self
acquired property. As per Section 15 of the Hindu Succession Act, the
plaintiff is entitled to have only 1/3 share in the suit property and prayed
for modification of the judgment and decree passed by the trial Court.
9.Per contra, the learned counsel appearing for the plaintiff
submitted that the suit property originally belonged to the plaintiff's
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A.S.No.242 of 2018
grandfather and the same was derived by her father and his brother.
Thereafter, they have been issued a separate patta and as such,
admittedly, the suit property is the ancestral property. After the demise of
their father, his share devolved upon his legal heirs viz., the plaintiff and
the defendants 1 & 2. Therefore, the plaintiff is entitled to have 4/9 share
in the suit property. The trial Court rightly allowed the suit and
subsequently, no interference need to be entertained with the judgment
and decree passed by the Court below by this Court.
10.Heard the learned counsel for the plaintiff as well as the learned
counsel for the defendants.
11.The plaintiff is the sister of the second defendant and daughter
of the first defendant in the suit. The third defendant is the wife of the
second defendant. The only point raised by the learned counsel for the
defendants is that the suit property is self acquired property and the
plaintiff is entitled to have only 1/3 share in the suit property. Admittedly
the suit property originally belonged to the grandfather of the plaintiff
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A.S.No.242 of 2018
and after his demise, his sons viz., the father of the plaintiff and his
brother derived the suit property. During their life time, they have been
in the possession and enjoyment of the property and they were issued
separate patta in respect of their respective possession and enjoyment of
the property. Therefore, the property was ancestral one and during the
life time of their father of the plaintiff and the second defendant, only
they are having equal share in the suit property, in which, 3/9 share. That
apart, after the demise of their father, his share is devolved upon his legal
heirs and as such, the plaintiff became entitled to have 4/9 share in the
suit property. Though the plaintiff has got married in the year 1987 and
as per Section 6 of the Hindu Succession Act, 1956 as amended by the
Central Amendment Act 39/2005 and Tamil Nadu Amendment Act 1/90,
the daughter became coparcener in respect of the ancestral property.
Therefore, she is also entitled to equal share in the suit property.
Accordingly, the trial Court decreed the suit as prayed for and this Court
finds no infirmity or illegality in the judgment and decree passed by the
trial Court.
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A.S.No.242 of 2018
In the result, the Appeal Suit is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
06.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
sms
To
The II Additional District Court, Salem.
https://www.mhc.tn.gov.in/judis/
A.S.No.242 of 2018
G.K.ILANTHIRAIYAN, J.
sms
A.S.No.242 of 2018
and
C.M.P.No.4223 of 2018
06.07.2021
https://www.mhc.tn.gov.in/judis/
