S.Sathish vs C.Selvaraj
2021 Latest Caselaw 6346 Mad

                                                                      S.A.No.213 of 2021 & CMP.No.4257 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 10.03.2021

                                                         CORAM :

                           THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
                                                    S.A.No.213 of 2021
                                                  & CMP.No.4257 of 2021

                1.S.Sathish
                2.S.Deepa                                                            ... Appellants
                                                             Versus

                1.C.Selvaraj
                2.C.Sarangapani
                3.C.Lakshmi
                4.S.Kanthamani
                5.N.Thirupurasundari
                6.P.Banu                                                             ... Respondents


                                   Second Appeal is filed under Section 100 of the Civil Procedure

                Code, to set aside the Judgment and Decree passed by the V Additional Judge,

                City Civil Court, Chennai, dated 04.07.2019 made in A.S.No.233 of 2018,

                confirming the Judgment and decree of the VII Assistant City Civil Court,

                Chennai dated 20.02.2018 made in O.S.No.6771 of 2009.

                                            For Appellants      : Mr.K.Sivakumar for
                                                                  M/s. M.Liagat Ali

                                                             ****


https://www.mhc.tn.gov.in/judis/
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                                                                    S.A.No.213 of 2021 & CMP.No.4257 of 2021

                                                     JUDGMENT

This second appeal has been filed to set aside the Judgment and

Decree passed by the V Additional Judge, City Civil Court, Chennai, dated

04.07.2019 made in A.S.No.233 of 2018, confirming the Judgment and decree

of the VII Assistant City Civil Court, Chennai dated 20.02.2018 made in

O.S.No.6771 of 2009.

2.The main contention of the learned counsel appearing for the

appellants is that the suit was filed for declaration and permanent injunction.

The plaintiffs/appellants are the brother and sister. Chinnasamy is the grand

father of the plaintiffs/appellants, who acquired a property measuring 3350

sq.ft. out of his own income, thus it is his self acquired property. The said

Chinnasamy had two daughters and two sons i.e., the respondent Nos.1, 2, 4

and 5. Chinnasamy had settled the front northern portion of the above said

property measuring 600 sq.ft. to his first daughter S.Kanthamani and settled the

southern portion of the above said property measuring 600 sq.ft. to his second

daughter N.Thiripurasundari, by virtue of settlement deed dated 07.11.1985.

Subsequently, he had settled the north eastern backside portion measuring 1128

sq.ft. in favour of his second son C.Sarangapani, who is the second defendant

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

S.A.No.213 of 2021 & CMP.No.4257 of 2021

in the suit, by virtue of settlement deed dated 10.02.1994. He had not settled

the south eastern backside portion measuring 1063 sq.ft. together with 4 feet

lane to his first son i.e. the first defendant in the suit. He had settled his

property to his two daughters, one son and left the first defendant son viz.,

C.Selvaraj, who is the father of the plaintiffs/appellants, since he has been

running the improper life. He had allowed the first son and his family members

to reside in the remaining extent of 1063 sq.f.t of the property and as such the

plaintiffs and their parents are residing there. Under these circumstances,

C.Sarangapani, S.Kanthamani, N.Thiripurasundari along with C.Selvaraj had

sold the property to the sixth defendant on 23.11.2006.

3.According to the appellants, the above suit schedule property is an

ancestral property, the defendants supposed to have obtained a consent from the

plaintiffs/appellants to sell the property and the defendants failed to do so.

However, the trial court finding was that the property is not an ancestral

property. It was acquired by the grand father of the appellants/plaintiffs, it was

a self acquired property of the late Chinnasamy and the legal heirs of the

deceased Chinnasamy had executed a sale deed in favour of the sixth

defendant. Therefore, the plaintiffs have no right over the suit property, as the

suit property is a self acquired property of the deceased Chinnasamy, thus, there https://www.mhc.tn.gov.in/judis/

S.A.No.213 of 2021 & CMP.No.4257 of 2021

was no need to take any consent from the appellants/plaintiffs, while selling the

property to the sixth defendant. Therefore, the appellants have filed the first

appeal before the first appellate court, stating that it is an ancestral property,

hence, before any sale of suit schedule property, they should have obtained the

consent of the plaintiffs, but they failed to do so. These aspects were not

considered in a proper prospective. Hence this appeal.

4.The learned counsel appearing for the appellants has proposed the

following substantial question of law to admit the appeal:

“a) The property was with the exclusive

possession of the father and his son and daughter jointly

after the death of the grand father and as such is not they

the members of the joint family and they inherit as a Kartha

of Hindu Undivided family;

b) If not the property were part of Joint Hindu

Family property;

c) Whether Section 8 the Hindu Succession Act

1956 is applicable to the facts and circumstances of the

case; and

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S.A.No.213 of 2021 & CMP.No.4257 of 2021

d) In CIT Vs P.L.Karuppan Chettiyar reported

full bench (1978) 114 JTR 523 (Mad) it has been held by

that under Hindu Law. The property of a male Hindu

devolved on his death of his sons and grand sons as the

grand sons also have an interest in the property.”

5.The issue to be decided in the present appeal is as to whether the

appellants are entitled for any share in the above said property or not.

6.The above said property measuring 3350 sq.ft. is a self acquired

property of the appellants/plaintiffs grand father, who is having two daughters

and two sons, he had settled some portion of the property to his two daughters

measuring 600 sq.ft. each vide settlement deed dated 07.11.1985 and settled a

share measuring 1128 sq.ft. in favor of the second defendant, who is the DW2

in the suit on 10.02.1994 and the remaining portion of the property to an extent

of measuring 1063 sq.ft. together with 4 feet lane, the grand father allowed the

first son and his family members to reside in the remaining extent of 1063 sq.f.t

of the property, thus the plaintiffs and their parents are in enjoyment of the suit

property. Under these circumstances, the first respondent viz., Selvaraj joined

with defendant Nos.2, 4 and 5 had sold the property to the sixth defendant. The https://www.mhc.tn.gov.in/judis/

S.A.No.213 of 2021 & CMP.No.4257 of 2021

contention of the appellants was that the property is an ancestral property,

without the consent of the plaintiffs, the defendants Nos.1, 2, 4 and 5 have sold

the property to the sixth defendant. However, the findings of the courts below

was that it is a self acquired property of Chinnasamy. Therefore, the said

Chinnasamy had settled the property in favour of his legal heirs and also

allowed the first defendant and his family member to enjoy the property to the

extent of 1063 sq.ft., subsequently the defendant Nos.1, 2, 4 and 5 sold the said

property to the sixth defendant. By referring various Judgments of this Court,

the Hon'ble Apex Court and after analyzing the evidence of the

appellants/plaintiffs and the defendants, the trial court had come to the

conclusion that it is not an ancestral property and the first appellate court also

categorically held that it is a self acquired property of the grand father of the

appellants/plaintiffs. Therefore, the class-I legal heirs of the late Chinnasamy

is entitled for the share over the property and they can dispose of the property

without the consent of the appellants/plaintiffs. Thus, appellants are not

entitled any share in the suit property.

7.The finding of the courts below is that the appellants/plaintiffs do

not have any right over the property on the basis of the claim that the property

is an ancestral property. I do not find any irregularity or infirmity in the https://www.mhc.tn.gov.in/judis/

S.A.No.213 of 2021 & CMP.No.4257 of 2021

Judgment and the Decree passed by the courts below. There is no merit in this

second appeal and this court does not find any substantial question of law as

suggested by the learned counsel for the appellants in the grounds of appeal

and hence, this second appeal deserves to be dismissed.

8.In view of the above, this second appeal stands dismissed. No

costs. Consequently, the connected miscellaneous petition is closed.

10.03.2021

Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order ah

To

1.The V Additional Judge, City Civil Court, Chennai.

2.The District Munsif, District Munsif Court, Nagapattinam.

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

S.A.No.213 of 2021 & CMP.No.4257 of 2021

KRISHNAN RAMASAMY, J., ah

S.A.No.213 of 2021 & CMP.No.4257 of 2021

10.03.2021

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