Madras High Court
Periyasamy vs T.Alaguraj on 28 September, 2021
S.A.No.227 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.227 of 1999
and
M.P.(MD)Nos.1 to 3 of 2012 & 1 of 2014
Periyasamy ... Appellant / Appellant / 5th Defendant
-Vs-
1.T.Alaguraj
2.Minor Thangasundar
3.Minor Thangarathy
(Minors 2 & 3 represented by their father
and guardian 1st respondent) ...1 to 3 Respondents / 1 to 3
Respondents/ 1 to 3 Plaintiffs
4.Pattukani @ Velammal
5.Minor Maliammal
6.Minor Mary Selvam
7.Thangagurusamy
8.P.Mani
9.Velammal
10.Solaippa Nadar
11.Senthoorpandi
https://www.mhc.tn.gov.in/judis
1/6
S.A.No.227 of 1999
12.Nagalingam
(Minors 5 and 6 represented by theri mother next friend
fourth respondent) ... Respondents 4 to 12 / Respondents 4 to 12/
Defendants 1 to 4 and 6 to 10
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in A.S.No.1 of 1996 on the file of
the Addiitonal District Judge cum Chief Judicial Magistrate, Tuticorin,
dated 27.08.1996 confirming the judgment and decree in O.S.No.370 of
1990 on the file of the Principal District Munsif Court, Tuticorin, dated
17.09.1991 .
For Appellant : Mr.S.Kadarkarai
For R1 to R3 : Mr.C.Dhanaseelan
For R4 : Mr.P.Thirunavukkarasan
For R7, R8, R11
and R12 : no appearance
JUDGMENT
The 5th defendant in O.S.No.370 of 1990 on the file of the Principal
District Munsif Court, Tuticorin is the appellant in this second appeal.2.
The plaintiffs filed the said suit for partitioning 1/5th share in the suit
properties. The genealogy is as under:-
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 1999
Boothamani Nadar
wife Velammal D3/R9
Thangagurusamy Mani Bathirakali Periyagurusamy
(D1/R7) (D2/R8) (died on 13.07.1985) (died in 1984)
T.Alaguraj (P1/R1) Wife Pattukani (D8/P4)
minor Thangasudar(P2/R2) minor Malaiammal (D9/R5)
minor Thangadurai (P3/R3) minor Maryselvan (D10/R6)
2.There is no dispute that the suit properties belonged to Boothamani
Nadar. He is said to have died in the year 1983. He left behind his wife
Vellammal and three sons namely Thangagurusamy, Mani and
Periyagurusamy and one daughter Bathirakali as his surviving legal heirs.
Bathirakali also passed away on 13.07.1985. The plaintiffs are the husband
and children of Bathirakali. The fourth defendant had purchased some of
the suit items from D1 and D2 under Ex.B14, B15 and B17. The appellant
purchased a portion of the suit properties from Vellammal/D3 under Ex.B1.
The trial court framed the necessary issues. The first plaintiff examined
himself as P.W.1 and marked Ex.A1 to Ex.A10. On the side of the
defendants, three witnesses were examined. Ex.B1 to Ex.B22 were marked.
After a consideration of the evidence on record, the trial court by judgment
and decree dated 17.09.1991 passed preliminary decree granting 1/5th share
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S.A.No.227 of 1999
in favour of the plaintiffs. Aggrieved by the same, the 5th defendant filed
A.S.No.1 of 1996 before the Additional District Judge, Tuticorin. The first
appellate court by the impugned judgment and decree dated 27.08.1996
dismissed the suit. Challenging the same, this second appeal came to be
filed. The second appeal has not been admitted so far.
3. Heard the learned counsel on either side.
4. The basic facts are not in dispute. However, though the appellant
would contend that even during the life time of Boothamani Nadar, a family
arrangement was arrived at, there is no solid proof for the same except the
stray admission said to have been made by P.W.1. In any event, the said
family arrangement has not at all been established. If at all they treated the
property as coparcenary property, during their life time, three sons would
have had right or interest therein. If Vellammal was also made a party to the
family arrangement, then, the daughter could not have been ignored. In any
event, the factum of family arrangement has not at all been established. The
courts below have not given any finding thereon. I assume that Boothamani
Nadar died intestate and his estate devolved in equal shares on all his five
legal heirs. Vellammal would have had 1/5th share in the property.
Likewise, Bathirakali would have had 1/5th share in the suit property. The
right of Vellammal to alienate her share in the suit property cannot be
denied. But she could not have alienated more than her 1/5th share in the
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S.A.No.227 of 1999
suit properties. Vellammal has sold her share in the suit property only in
favour of the appellant. She had not sold any property in favour of the
fourth defendant namely Solaiappa Nadar. The first appellate court has
erroneously assumed that Solaiappa Nadar has purchased from Velammal.
It is not so. He had purchased only from D1 and D2. I clarify that whatever
was purchased by Solaiappa Nadar can be adjusted only against the share
of his vendors. The property purchased by the appellant Periyasamy under
Ex.B1 and Ex.B2 will be adjusted against Vellammal's 1/5th share.
5. With this clarification, the second appeal is disposed of. No costs.
28.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Addiitonal District Judge cum Chief Judicial Magistrate, Tuticorin.
2.The Principal District Munsif Court, Tuticorin.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 1999
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.No.227 of 1999
and
M.P.(MD)Nos.1 to 3 of 2012 & 1 of 2014
28.09.2021
https://www.mhc.tn.gov.in/judis
