Madras High Court
Baskaran vs Valli on 8 September, 2021
S.A.(MD)No.940 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.940 of 2010
Baskaran ... Appellant / 7th Appellant / 7th Defendant
-Vs-
1.Valli
2.Sri Rengam
3.Aarayee
4.Karuthavanam
5.Singamuthu
6.Muthulakshmi
7.Minor Murali
8.Minor Nivetha
(Minors 7 and 8 represented by their next friend and guardian
and mother of 6th respondent Muthulakshmi)
... Respondents 3 to 8 / Appellants 1 to 6 / Defendants 1 to 6
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 28.06.2010 in A.S.No.39 of
2009 on the file of the Sub Court, Pattukottai, confirming the judgment and
decree in O.S.No.93 of 2008 on the file of the District Munsif, Pattukottai.
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1/6
S.A.(MD)No.940 of 2010
For Appellant : Mr.K.Govindarajan
for Mr.K.K.Ramakrishnan
For R1 to R4 & R6
to R8 : Mr.Meenakshi Sundaram
Senior Counsel
for Mr.K.Baalasundharam
For R5 : no appearance
JUDGMENT
This second appeal arises out of a partition suit. The 7th defendant is
the appellant herein. The genealogy is as under:-
Veerappan
Chinnuambalam
Karuppiah Sivasamy Natesan Gopal
Arayi/wife Karuthavanam Singamuthu Arumugam Valli Srirangam
D1 D2 D3 died P1 P2
Muthulakshmi-D4 Minor Murali-D5 Minor Nivetha-D6
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S.A.(MD)No.940 of 2010
2. There is no dispute that the suit properties belonged to Karuppiah.
He passed away prior to the filing of the suit. He was survived by his wife
Arayi, two sons namely Singamuthu, Arumugam and three daughters
namely Karuthavanam, Valli and Srirangam. Arumugam died in the year
2006 leaving behind his wife Muthulakshmi and two minor children (D5 &
D6). One of the properties left behind by Karuppiah was sold in favour of
the appellant Baskaran by Singamuthu vide Ex.B1 dated 03.04.2008.
The partition suit came to be laid on 14.07.2008 by two of the daughters of
Karuppiah namely Valli and Srirangam. According to them, all the suit
items belonged to Karuppiah and that he died intestate and that therefore,
they have 1/3rd share in the suit properties. They would further contend that
sale made in favour of the appellant would not bind them. Since the
defendants were not ready for an amicable partition, they had to file the
aforesaid suit. The suit was resisted by the third defendant Singamuthu/
vendor of the appellant. Based on the divergent pleadings, the trial Court
framed the necessary issues. The first plaintiff Valli examined herself as
P.W.1. Ex.A1 to Ex.A6 were marked. The third defendant Singamuthu
examined himself as D.W.1. Their sister Karuthavanam was examined as
D.W.2. The appellant examined himself as D.W.3. After a consideration of
the evidence on record, the trial Court granted preliminary decree holding
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S.A.(MD)No.940 of 2010
that the plaintiffs are entitled to 2/6th share in the suit property. Aggrieved
by the same, the defendants filed A.S.No.39 of 2009 before the Sub Court,
Pattukkottai. The first appellate court by the impugned judgment and
decree dated 28.06.2010 confirmed the decision of the trial court and
dismissed the appeal. Challenging the same, the second appeal came to be
filed.
3. Heard the learned counsel for the appellant and the learned senior
counsel appearing for the contesting respondents/plaintiffs.
4. The suit schedule comprises as many as five items. The scope of
the second appeal is confined only to the first item which measures 22 cents
of land. The entitlement of the plaintiffs to 1/6th share each in the suit
properties cannot be disputed. The Courts below have concurrently found
in their favour and it does not call for any interference. The only question
is whether the sale made in favour of the appellant by Singamuthu in
respect of the suit item No.1 can be excluded from the purview of the
partition. The learned senior counsel rightly pointed out that equitable
considerations can be pressed into service at the time of final decree
proceedings and that they cannot sway the mind of the Court at the
preliminary decree stage. Be that as it may, the fact remains that all the
defendants stood on one side and appear to support the sale made in favour
of the appellant.
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S.A.(MD)No.940 of 2010
5. The argument of the appellant's counsel was that Singamuthu was
virtually acting as family manager and therefore, entitled to sell the suit first
item. Since the share of the plaintiffs would not be affected, I wanted to
know if there could be some compromise between the parties in respect of
the suit first item alone. The case was adjourned only for this purpose.
6. Today when the matter was taken up for hearing, it was pointed out
that the appellant would offer 6 cents of land as a single piece abetting road
on the north eastern side. The sketch has been enclosed along with this
decree. It shall form part of this decree. In other words, the plaintiffs will
take 6 cents of land in suit item No.1. The appellant will take the remaining
16 cents of land in suit item No.1. The shares of the other respondents were
not contested in this appeal. It will remain adjusted in the final decree
proceedings.
7. The learned senior counsel appearing for the plaintiffs informs the
Court that the plaintiffs would file a final decree petition within a period of
six weeks from the date of receiving a copy of the preliminary decree. The
Court concerned is called upon to dispose of the final decree proceedings
within a period of six months thereafter.
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S.A.(MD)No.940 of 2010
G.R.SWAMINATHAN.J.,
rmi
8. The judgment and decree passed by the first appellate Court is
accordingly modified. The second appeal is disposed of. No costs.
08.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Pattukottai.
2.The District Munsif Court, Pattukottai.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.940 of 2010
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