Madras High Court
Ramar vs Sundaralakshmi ... 1St on 30 September, 2021
1 S.A.(MD)No.373 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.373 of 2014 & 33 of 2020 and
M.P.(MD)No.1 of 2014
S.A.(MD)No.373 of 2014
Ramar ... Appellant / Appellant /
2nd Defendant
Vs.
1. Sundaralakshmi ... 1st Respondent / 1st Respondent /
Plaintiff
2. Amirtharaj ... 2 Respondent / 2nd Respondent /
nd
1st Defendant
3. Sundararaj ... 3rd Respondent / 3rd Respondent /
3rd Defendant
4. Kammaditchi ... 4 Respondent / 4th Respondent /
th
4th Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree dated 15.04.2008
passed in A.S.No.249 of 2006 on the file of the Principal
Subordinate Court, Madurai, confirming the judgment and
decree dated 03.04.2006 passed in O.S.No.587 of 1992 on the
file of the District Munsif, Thirumangalam and thereby dismiss
the suit with costs throughout.
https://www.mhc.tn.gov.in/judis
1/11
2 S.A.(MD)No.373 OF 2014
For Appellant : Mr.J.Barathan,
for Mr.T.R.Jeyapalam.
For R-3 : Mr.J.Gunaseelan Muthiah
For R-1 : Mr. K.Sekar
***
S.A.(MD)No.33 of 2020
Sundararaj ... Appellant / Appellant /
3rd Defendant
Vs.
1. Sundaralakshmi ... 1st Respondent / 1st Respondent /
Plaintiff
2. Amirtharaj
3. Ramar
4. Kammaditchi ... Respondents / Respondents /
Defendants 1,2 & 4
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree dated 15.04.2008
passed in A.S.No.274 of 2006 on the file of the Principal
Subordinate Court, Madurai, confirming the judgment and
decree dated 03.04.2006 passed in O.S.No.587 of 1992 on the
file of the District Munsif, Thirumangalam and thereby dismiss
the suit with costs throughout.
For Appellant : Mr.J.Gunaseelan Muthiah
For R-1 : Mr.K.Sekar
For R-3 : Mr.J.Barathan,
for Mr.T.R.Jeyapalam.
***
https://www.mhc.tn.gov.in/judis
COMMON JUDGMENT
These second appeals arise out of a suit for partition.
2. Sundaralakshmi filed O.S.No.587 of 1992 on the
file of the District Munsif, Tirumangalam, for preliminary
decree of partition to allot 1/2 share in the suit properties by
metes and bounds. The case of the plaintiff is that she was
born to the first defendant Amirtharaj through his wife
Azhagammal in the year 1983. The suit properties are
ancestral properties of the first defendant. The marital
relationship between the first defendant and the plaintiff's
mother broke down. The first defendant was not maintaining
them. Therefore, they filed O.S.No.26 of 1987 for maintenance
and the same was also decreed. Since the first defendant
anticipated that the properties will be targeted while
enforcing the maintenance claim, he sold the same in favour of
the other defendants. According to the plaintiff, those
alienations will not bind her, since the defendants were not
amenable to effect partition. In order to enforce her claim as a
member of the coparcenary, O.S.No.587 of 1992 came to be
instituted.
https://www.mhc.tn.gov.in/judis
3. The first defendant filed written statement
controverting the plaint averments. Later remained ex-parte.
He did not enter the witness box. The suit was contested only
by defendants 2 and 3. They filed written statement
contending that the first defendant had full right to deal with
the suit properties and that the suit was not maintainable. The
second defendant purchased 82 cents lying in the middle of
the second item from the first defendant for valuable
consideration dated 18.02.1992. Item Nos.3 and 4 were
purchased by the second defendant from the first defendant
on 12.03.1992 for valuable consideration. Based on the
divergent pleadings, the trial Court framed the necessary
issues as follows:-
“1. Whether the plaintiff is entitled for a
preliminary decree for partition of her 1 / 2
share?
2. Whether the sale deeds dated
09.10.1996, 18.02.1992 and 12.03.1992 are
true, valid and binding upon the plaintiff?”
4. The plaintiff examined herself as P.W.1 and marked
https://www.mhc.tn.gov.in/judis
Ex.A.1 to Ex.A.13. Defendants 2 and 3 examined themselves as
D.W.1 and D.W.2 and the two brothers of the first defendant
were examined as D.W.3 and D.W.4. Ex.B.1 to Ex.B.13 were
marked. After a consideration of the evidence on record, the
trial court passed preliminary decree as follows:-
“1. It is hereby decided that the plaintiff
has 1 /6th share in the 1st item; 1/2 share of the
middle 82 cents in the 2nd item; 1/2 share of the
western 55 cents in the 3rd item; and 1/2 share in
the 4th item of the suit properties.
2. The plaintiff is at liberty to appoint an
Advocate Commissioner to divide the above said
properties by metes and bounds and allot the
shares to the plaintiff in the suit properties.
3. That the relief of future mesne profits
is relegated to separate proceedings under
Order 20, Rule 12 of C.P.C.
4. That there is no order as to costs.
(Plaintiff's cost Rs.720.25/- Cost list not
produced by the defendants).”
https://www.mhc.tn.gov.in/judis
5. Aggrieved by the same, the second defendant filed
A.S.No.249 of 2006 before the Principal Sub Court, Madurai.
The third defendant filed A.S.No.274 of 2006 before the very
same Court. Both the appeals were taken up together and by
common judgment and decree dated 15.04.2008, the decision
of the trial Court was confirmed and the appeals were
dismissed.
6. Questioning the same, S.A.(MD)No.33 of 2020 was
filed against the judgment and decree made in A.S.No.274 of
2006. S.A.(MD)No.373 of 2014 was filed against the judgment
and decree made in A.S.No.249 of 2006. Since both the
second appeals arose out of a single suit, they were heard
together. S.A.(MD)No.373 of 2014 was admitted on the
following substantial questions of law:-
“ 1) Whether the observation of the
Courts below that the suit properties originally
belonged to the grandfather of the plaintiff and
hence, they are ancestral in the hands of the
plaintiff is correct in view of Sections 6 and 8 of
the Hindu Succession Act, 1956, when the suit
https://www.mhc.tn.gov.in/judis
properties are not ancestral to the grandfather of
the plaintiff and when the grandfather had
passed away subsequent to the coming into force
of the Hindu Succession Act, 1956?
2) Whether the suit for partition is
maintainable without impleading the brothers of
the first defendant (father of the plaintiff) when
the first defendant is entitled to undivided 1/3rd
share only, as non-joinder of co-sharers is fatal to
a suit for partition?
3) Whether the Courts below failed to
apply the principle of Hindu Law that alienation
by father as Kartha is binding on the other
coparcenaries, if the alienation is for family
necessity? ”
S.A.(MD)No.33 of 2020 was admitted on the following
substantial questions of law:-
i) Whether the suit as framed for
partition is maintainable?
ii) Whether the Courts below were right
in concluding that the suit properties were joint
https://www.mhc.tn.gov.in/judis
family properties and the plaintiff would get
right by birth? ”
7. The learned counsel appearing for the appellants
submitted that the Courts below went completely wrong in
considering the suit properties as ancestral properties. He
would submit that there is sufficient evidence to show that the
suit properties were purchased by the grandfather of the
plaintiff. Following his demise, the suit properties were
inherited by the first defendant Amirtharaj. Therefore, the suit
properties would only be separate properties at the hands of
the first defendant. They cannot be considered as the joint
family properties amenable to partition. The learned counsel
would state that the Courts below failed to appreciate the
scope of Sections 6 and 8 of the Hindu Succession Act. He
submitted that the substantial questions of law must be
answered in the favour of the appellants and he called for
reversal of the decision of the Courts below.
8. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree do not call for any interference.
https://www.mhc.tn.gov.in/judis
9. I carefully considered the rival contentions and
went through the evidence on record.
10. The primary question that calls for determination
is whether the suit properties can be considered as the
ancestral properties amenable to partition. It is beyond
dispute that the plaintiff was an unmarried daughter when the
Tamil Nadu Act 1 of 1990 came into force. The appellants
herein purchased the suit properties under Ex.A.11 and
Ex.A.12. Ex.A.11 is dated 18.02.1992, while Ex.A.12 is dated
12.03.1992. In Ex.A.11 as well as Ex.A.12, it has been
mentioned that the suit properties are ancestral properties.
That is why, the Courts below have concurrently found that
the suit properties are ancestral properties. The said findings
have not been shown to be perverse. I answer the substantial
questions of law against the appellants.
11. These second appeals are dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis
30.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
2. Web copy of this order shall be
uploaded on 21.01.2022.
To:
1. The Principal Subordinate Judge,
Madurai.
2. The District Munsif,
Thirumangalam.
3. The Record Keeper, V.R.Section,
Madruai Bench of Madras High Court, Madurai.
Note : Web copy of this order
shall be uploaded on .09.2021
G.R.SWAMINATHAN,J.
https://www.mhc.tn.gov.in/judis
PMU
S.A.(MD)No.373 of 2014 &
S.A.(MD)No.33 of 2020
30.09.2021
https://www.mhc.tn.gov.in/judis
