Peter vs Chinnasami
2021 Latest Caselaw 23249 Mad

                                                                              S.A.Nos.718 & 741 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 29.11.2021

                                                   CORAM:

                                  THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                            S.A.Nos.718 & 741 of 2017
                                           and C.M.P.No.18628 of 2017

                Peter                                       ... Appellant in both second appeal

                                                      Vs.
                1. Chinnasami
                2. Periasami
                3. Durai
                4. Sankar                               ... Respondents in S.A.No.718 of 2017
                1. Govindammal
                2. Perumal
                3. Thangavel
                4. Lakshmanan
                5. Neela                                ... Respondents in S.A.No.741 of 2017
                COMMON PRAYER: The Second Appeals filed under Section 100 of the
                Civil Procedure Code against the judgment and decree dated 01.08.2017 passed
                in A.S.Nos.15 & 16 of 2017 on the file of the Principal District Judge at
                Krishnagiri in confirming the judgment and decree dated 28.11.2016 passed in
                O.S. Nos.193 of 2012 and 261 of 2013, on the file of the Principal Subordinate
                Judge at Krishnagiri.


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https://www.mhc.tn.gov.in/judis
                                                                                     S.A.Nos.718 & 741 of 2017

                                            For Appellant          : Mr.J.Joseph Stalin for
                                                                     Mr.V.Raghavachari

                                            For Respondent No.1 : Mr.M.R.Kuyilan for
                                                                  Mr.S.Parthasarathy

                                            For Respondent Nos.
                                            2 to 5              : No appearance
                                                           -----

COMMON JUDGMENT The unsuccessful appellant/plaintiff has filed the suit for declaration,

delivery of possession and also for damages.

2. According to the appellant/plaintiff, the suit property was gifted to

the appellant/plaintiff by his father Perumal, out of love and affection, by virtue

of gift settlement deed dated 27.03.2006 and possession was delivered to him

on the very same day. He accepted the gift and acted upon it and thereby he is

the absolute owner. At the end of the year 2006, the appellant/plaintiff had

shifted his residence to Salem and he was doing business. At this juncture,

utilizing the opportunity of absence of the appellant/plaintiff, the

respondents/defendants trespassed into the suit lands in the middle of the year

2008 and dispossessed the appellant/plaintiff from the suit lands. Considering

the close relationship between the parties, the appellant/plaintiff was reluctant

https://www.mhc.tn.gov.in/judis S.A.Nos.718 & 741 of 2017

to proceed with the legal proceedings against the respondents/defendants. The

respondents/defendants have cut and removed 25 Coconut trees and 81 Guava

trees in the year 2010 and thereby inflicted a loss of Rs.1,31,000/- to the

appellant/plaintiff. Hence, the appellant/plaintiff had filed the suit for

declaration of title, delivery of possession and recovery for damages.

3. In the written statement, the respondents/defendants denied the

averments made in the plaint and contended that their grandfather Perumal had

no right to execute the gift settlement deed as the property is an ancestral one

and they are also entitled to equal share in the property and that they have not

caused any damages to the Coconut and Guava trees. Since they are the co-

owners, they have every right to be in possession of the ancestral joint family

property and therefore, the appellant/plaintiff is not entitled to the relief.

Simultaneously, they also filed a suit for partition, dividing the property into

five equal shares and allotting one share to each of them and to declare the gift

settlement deed dated 27.03.2006 created by Perumal in favour of his son is

null and void.

4. Considering the subject matter and the parties to the litigation

https://www.mhc.tn.gov.in/judis S.A.Nos.718 & 741 of 2017

are same, the trial Court conducted a joint trial and dismissed the suit of the

appellant/plaintiff and decreed the suit in favour of the respondents/defendants.

Aggrieved over the same, the plaintiff preferred two appeals and both appeals

were dismissed. Against the concurrent finds of the Courts below, the present

Second Appeals have been filed.

5. Heard the submissions of both sides.

6. From the materials produced before the Court, it is noted that the

plaintiff/appellant himself admitted that the property is an ancestral one. The

relationship between the parties is also admitted and that the father of the

parties, namely, Perumal had two wives. Through the first wife, he got one

daughter, namely, Govindammal and through his second wife, defendants 2 to 5

were born. After the death of the first wife, he married the mother of the

plaintiff/appellant and plaintiff/appellant was born to the second wife. The

plaintiff/appellant who was examined as PW1 would admit the relationship and

also the nature of property as an ancestral one and that the father of the parties,

namely, Perumal who was examined as PW2 would also admit that the suit

https://www.mhc.tn.gov.in/judis S.A.Nos.718 & 741 of 2017

property is an ancestral property and it is not a separate property of the

plaintiff/appellant's father and that the Courts below have rightly arrived at the

conclusion that Perumal cannot execute gift settlement deed for the entire

property without any right. Accordingly, the claim of the plaintiff/appellant

that he is entitled to declaration of title was also negatived. Now that the

learned counsel for the appellant/plaintiff would contend that the first

defendant who is none other than the husband of Govindammal entered into a

sale agreement for purchase of the suit property from the plaintiff/appellant.

The conduct of the first defendant would go to show that he accepted the title

of the plaintiff/appellant. In that event, it is contended that the contention that

the joint family property is liable for partition is not correct and therefore, they

are not entitled for the property. However, it is pertinent to note that only

because the plaintiff/appellant entered into the sale agreement with the first

defendant that will not take away the right of the co-sharers by birth from the

property. Co-sharers are Govindammal and her three children. Therefore, the

contention raised by the appellant/plaintiff cannot be sustained in the eyes of

law. Originally the parties have sought for 1/5th share, however, considering

the father's share, the Court has granted 1/6th share to each of the parties and

https://www.mhc.tn.gov.in/judis S.A.Nos.718 & 741 of 2017

that is not challenged by the parties. Therefore, finding that the parties are

entitled to equal share in the ancestral property is legal and does not require any

interference. I do not find any substantial question of law for admitting the

Second Appeal. Since there is no merits in the Second Appeals, the Second

Appeals are dismissed at the admission stage itself.

7. Accordingly, the Second Appeals are dismissed. There shall be no

order as to costs. Consequently, connected Miscellaneous Petition is closed.

29.11.2021 Index : Yes/No Internet : Yes sli

To

1. The Principal District Judge, Krishnagiri

2. The Principal Subordinate Judge, Krishnagiri.

https://www.mhc.tn.gov.in/judis S.A.Nos.718 & 741 of 2017

M. GOVINDARAJ, J.

sli

S.A.Nos.718 & 741 of 2017 and C.M.P.No.18628 of 2017

29.11.2021

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