Madras High Court
Eswari vs Parvathy on 9 June, 2021
S.A.(MD)No.355 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.355 of 2021
and
C.M.P.(MD)No.4684 of 2021
Eswari ... Appellant
Vs.
Parvathy ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against Judgment and Decree dated 05.01.2021 made in A.S.No.25
of 2020 on the file of the Additional District and Sessions Judge (FTC),
Tenkasi partly reversing the Judgment and decree dated 25.11.2019 made
in O.S.No.12 of 2017 on the file of the Additional Sub Judge, Tenkasi.
For Appellant : Mr.R.Jenifar Bibin
JUDGMENT
Heard the learned counsel appearing for the appellant.
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S.A.(MD)No.355 of 2021
2. The defendant in O.S.No.12 of 2017 on the file of the
Additional Sub Court, Tenkasi is the appellant in this appeal. The said
suit was instituted by Parvathi, the respondent herein. The case of the
respondent herein was that she was married to one Raji, S/o.Sanniyasi
Pandiyar. The said Raji had passed away and she claimed that the suit
schedule properties are co-parcenary properties of Sanniyasi Pandiyar
and Raji. Sanniyasi Pandiyar had also passed away. In order to defeat
her rights, Sanniyasi Pandiyar had executed sale deeds in favour of the
appellant herein, who is none other than the daughter of Sanniyasi
Pandiyar. The plaintiff sought partition in respect of the suit schedule
properties.
3. The prayer for partition was strongly contested by the appellant
herein. The appellant herein filed written statement pointing out that in
respect of first, third and fourth schedule properties, the plaintiff cannot
have any claim, because Sanniyasi Pandiyar had already sold the same to
the defendant, after receiving valuable consideration. The parties
examined themselves.
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S.A.(MD)No.355 of 2021
4. After considering the evidence on record, the trial Court
dismissed the suit as against first, third and fourth schedule of properties.
However, in respect of item No.2, the plaintiff was allotted 3/4 share.
Questioning the same, the plaintiff filed A.S.No.25/2020, before the
Additional District and Sessions Judge (FTC), Tenkasi. By the impugned
judgment dated 05.01.2021, the first appellate Court confirmed the
judgment and decree of the trial Court in respect of third and fourth
schedule of properties. However, it was decreed that the plaintiff is
entitled to 1/3 share in the first schedule property. A finding was given
that the first schedule property is an ancestral property and therefore,
Sanniyasi Pandiyar could not have sold the same to the defendant, as if it
is his self acquired property. However, the decree passed in respect of
second schedule of property was also modified and held that the plaintiff
is entitled to only ½ share in the plaint schedule property. Challenging
the same, the present Second Appeal has been filed.
5. The learned counsel appearing for the appellant submitted that
the respondent herein had got married to Raji, even when her first
husband was alive and the said first marriage was not dissolved in a
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S.A.(MD)No.355 of 2021
manner known to law. According to him, Parvathi's marriage with Raju
was void and therefore, she was not entitled to maintain the suit for
partition. This argument could have been a formidable one, if such a
stand had been clearly taken before the trial Court. In fact, in the trial
Court, the defendant opposed the prayer for partition only in respect of
item Nos.1, 3 and 4. That apart, the judgment and decree passed by the
trial Court in favour of the plaintiff was not challenged by the appellant
before the first appellate Court. Therefore, not having challenged the
judgment and decree passed by the trial Court, it is not open to the
appellant to now canvass the contention that Parvathy was not competent
to maintain the suit for partition.
6. The learned counsel appearing for the appellant would further
argue that questioning the sale deeds executed by Sanniyasi Pandiyar in
favour of Eswari, the suit for partition simpliciter could not have been
filed. This contention is also not having any merit. It is well settled that
the person seeking the relief of partition can ignore the sale to which he
or she is not a party, if the rights can otherwise be established.
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S.A.(MD)No.355 of 2021
7. The appellant is the daughter of Sanniyasi Pandiyar, while the
respondent is the daughter-in-law of Sanniyasi Pandiyar. The Courts
below have given relief of partition, only in respect of item Nos.1 and 2.
As against the claim of plaintiff in respect of item Nos.3 and 4, the same
has been rejected by the Courts below. Though the trial Court awarded
3/4 share, in respect of the second item, the first appellate Court had
reduced the same to one 1/2 share. The judgment and decree of the first
appellate Court is well reasoned and fair. It does not call for any
interference. No substantial question of law arises for determination.
Accordingly, this Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
09.06.2021
Internet : Yes/No
Index : Yes/No
vsm
To
1.The Additional District and Sessions Judge (FTC), Tenkasi.
2.The Additional Sub Judge, Tenkasi.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.355 of 2021
G.R.SWAMINATHAN, J.
vsm
S.A.(MD)No.355 of 2021
09.06.2021
https://www.mhc.tn.gov.in/judis/
