Madras High Court
K.Sekar vs Chinthamani Ammal on 12 July, 2021
S.A.No.757 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.757 of 2008
K.Sekar ...Plaintiff/Appellant/Appellant
Vs.
1.Chinthamani Ammal
2.Durai
3.Kasthuri
4.Mala
5.Jayanthi
6.Muralidharan
7.Pandian
8.Sakthivel ...Defendants/Respondents/ Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 04.01.2008
passed in A.S.No.19 of 2007 on the file of the learned Subordinate
Judge, Panruti, confirming the Judgment and Decree dated 29.01.2007
passed in O.S.No.111 of 1999 on the file of the learned District
Munsif, Panruti.
https://www.mhc.tn.gov.in/judis/
S.A.No.757 of 2008
For Appellant : Mr.S.Kingston Jerald
For Respondents : Mr.R. Sunil Kumar
for R6 and R8
R1 to R5 – ex parte
JUDGMENT
The plaintiff in a suit for Partition is the appellant before this
Court. The Original Suit and the Appeal Suit filed by the plaintiff were
dismissed and consequently, he is before this Court. The parties are
referred to in the same rank as before the trial Court.
2.The plaintiff and the 2nd defendant are the sons of the 1st
defendant, defendants 3 to 5 are the daughters of the 1 st defendant and
the defendants 6 to 8 are the sons of the 2nd defendant.
3.The plaintiff would contend that the suit property was
purchased by his father Krishnasamy Padayachi @ Krishna Padayachi
in the year 1960 from out of the sale proceeds from the properties in
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S.A.No.757 of 2008
Cuddalore Town. Therefore, the suit property has to be considered as a
joint family property. The said Krishnasamy Padayachi @ Krishna
Padayachi died intestate at the suit Village and being the son, the
plaintiff has 1/5th share in the properties. Despite his repeated
demands, the defendants had not come forwarded to effect the
partition.
4.The defendants 6 to 8 who alone contested the suit filed a
Written Statement inter alia admitting that the suit property was
purchased from out of the sale proceeds from the properties in
Cuddalore Town. The properties in Cuddalore was purchased by their
grandfather Krishnasamy Padayachi @ Krishna Padayachi from out of
his self acquired funds and therefore, the property is the self-acquired
property of Krishnasamy Padayachi @ Krishna Padayachi.
Krishnasamy Padayachi @ Krishna Padayachi has executed a
registered Will dated 24.11.1995 in and by which he had bequeathed
the property in favour of his grandson, namely, the 6th defendant.
Therefore, the plaintiff has no right or title interest over the same. The
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S.A.No.757 of 2008
property which stood in the name of the 1st defendant was allotted to
the plaintiff. In fact, the 1st defendant had executed a Settlement Deed
in respect of the landed property in favour of the plaintiff's wife.
Likewise, another property which stood in the name of Krishnasamy
Padayachi @ Krishna Padayachi was allotted to the 2nd defendant and
the suit property is bequeathed to the defendants 6 to 8. The plaintiff
had not come to the Court with clean hands and he has no right over the
suit property.
5.The learned District Munsif before whom the suit O.S.No.111
of 1999 was filed had on considering the evidence on record come to
the conclusion that the property in question is the self-acquired
property of Krishnasamy Padayachi @ Krishna Padayachi and the Will
dated 24.11.1995 marked as Ex.B.4 has been proved to be true and
valid and consequently, dismissed the suit.
6.Challenging the same, the plaintiff had filed A.S.No.19 of 2007
on the file of the learned Subordinate Judge, Panruti. The learned
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S.A.No.757 of 2008
Subordinate Judge has also confirmed the Judgment and Decree of the
learned District Munsif, Panruti. Challenging the said Judgment and
Decree, the plaintiff is before this Court.
7.The Note Sheet would show that the suit has not been admitted
and has been adjourned.
8.Heard the learned counsels appearing on either side and
perused the papers.
9.The two grounds on which the plaintiff has staked a claim to
the suit property is that (a)the suit property is an ancestral property, the
same having been purchased from and out of the ancestral funds and
(b)The Will dated 24.11.1995 is shrouded in suspicious circumstances,
as no reference has been made to the 1st defendant, the widow, his
daughters and the defendants 3 and 5 and no reasons have been given
for not making the provision for them.
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S.A.No.757 of 2008
10.It is the case of the plaintiff that under Ex.A.1 – Sale Deed the
ancestral properties had been sold and the income generated therefrom
had been utilised to purchase the suit properties. Ex.A.1 - Sale Deed is
dated 18.03.1953. A perusal of the same, would show that the family
of Krishnasamy Padayachi @ Krishna Padayachi had sold their
property for a sum of Rs.500/- to one Govindasamy Padayachi. Out of
this Rs.500/-, Rs.370/- was adjusted towards the mortgage debt and it
was the balance of Rs.130/- that was shared amongst the sharers. This
property had been sold in the year 1953. The suit property was
purchased on 24.09.1966 nearly 13 years thereafter for a total
consideration of Rs.700/- under two Sale Deeds marked as Ex.B.2 and
Ex.B.3. Therefore, by no stretch of imagination, can it be concluded
that the suit property has been purchased out of the ancestral nucleus
and therefore, it is not a joint family property and therefore, the claim
of the plaintiff that it is an ancestral property is without any basis. The
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S.A.No.757 of 2008
next argument is that the Will dated 24.11.1995 is shrouded in
suspicious circumstances as no provisions has been made for the 1st
defendant's wife and the defendants 3 and 5, who are the daughters of
Krishnasamy Padayachi @ Krishna Padayachi. However, one of the
daughters, namely, 5th defendant has deposed as DW3 and she would
vouchsafe the execution of the Will. The properties standing in the
name of the 1st defendant, mother has been settled in favour of the
plaintiff's wife and the 5th defendant. Likewise, the suit property was
allotted to the defendants 6 to 8 and no property has been allotted to
their father, the 2nd defendant.
11.The Will has also been proved in the manner known to Law
by examining the attesting witness and the plaintiff has not been able to
elicit any contra statement from them or discredit their evidence. I do
not find any questions of Law much less the Substantial Question of
Law warranting interference in the above Second Appeal and the
Second Appeal fails.
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S.A.No.757 of 2008
In the result, the Second Appeal is dismissed, however, there
shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
12.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Panruti.
2.The District Munsif,
Panruti.
https://www.mhc.tn.gov.in/judis/
S.A.No.757 of 2008
P.T. ASHA, J,
mps
S.A.No.757 of 2008
12.07.2021
https://www.mhc.tn.gov.in/judis/
