Madras High Court
Subramani vs Kannammal on 5 April, 2022
SA.No.287/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.287/2022 and CMP.No.5944/2022
1.Subramani
2.Nallamuthu .. Appellants / Appellants /
Defendants 1 and 2
Vs.
1.Kannammal .. Respondent No.1 / Respondent No.1/
Plaintiff
2.Samiathal
3.Karuppusamy
4.K.Dhamodaran .. Respondents 2 to 4 /Respondents 2 to 4 /
Defendants 3 to 5
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree passed in A.S.No.8/2019 dated
29.10.2021 in respect of the 'A' schedule property is concerned, on the file
of the I Additional District Court, at Erode, in confirming the judgment and
decree made in O.S.No.71/2012 dated 19.11.2018 on the file of the learned
II Additional Subordinate Judge, Erode.
For Appellants : Mr.M.Guruprasad
https://www.mhc.tn.gov.in/judis 1 Page of 9
SA.No.287/2022
JUDGMENT
(1) The above Second Appeal is filed by defendants 1 and 2 in the suit
in O.S.No.71/2012 before the learned II Additional Subordinate
Judge, Erode.
(2) The 1st respondent in this appeal as plaintiff filed the suit in
O.S.No.71/2012 for partition of suit 'A' schedule property and to
allot an extent of 3.52 acres in plaintiff 's share and one half of
shares in suit 'B' schedule property and for other consequential
reliefs.
(3) It is the case of the 1st respondent/plaintiff in the suit that suit A and
B schedule properties originally belonged to one Thiru Porappana
Gounder. Suit 'A' schedule is described as an extent of 5.30 acres in
R.S.No.461/1&2 Vadamugam Vellode Village and 'B' schedule is an
extent of 3 acres in R.S.No.309/20 in Pudur Pudupalayam Village. It
is stated that the properties are the ancestral properties of Thiru
Porappana Gounder and his two sons by name Thiru Nalla Gounder
and Thiru Sengoda Gounder. It is further stated in the plaint that two
sons of Thiru Porappana Gounder namely Nalla Gounder and
Sengoda Gounder inherited an extent of 2.65 acres each in A
https://www.mhc.tn.gov.in/judis 2 Page of 9
SA.No.287/2022
schedule suit properties. It is also the case of the plaintiff that Thiru
Nalla Gounder, one of the sons of Porappana Gounder died and had
no issues. However, it is admitted that Nalla Gounder had a wife by
name Tmt Pavayammal.
(4) It is the further case of the plaintiff that Thiru Sengoda Gounder had
three sons by name Nallappa Gounder, Ramasamy Gounder,
Arumuga Gounder and one daughter by name Arukkani. It is the
further case of the plaintiff that she is the daughter of Ramasamy
Gounder and defendants 1, 2 and 3 are the children of Nallappa
Gounder. It is admitted that Arumuga Gounder and Arukkani died
without any issues. It is the case of the plaintiff that her father
Ramassamy Gounder and his father-in-law Muthusamy purchased
the property of Pavayammal W/o Nalla Gounder and Arumuga
Gounder, an extent of 88 1/3 + 88 1/3 acres. Therefore, it was
contended by the plaintiff that the property measuring an extent of
2.65 acres in the suit survey number belonged to her as she is the
sole legal heir of Ramasamy Gounder and her grandfather. The
plaintiff claimed title to an extent of 3.52 acres in the 'A' schedule
properties as a legal heir of Ramasamy Gounder by virtue of a Gift
https://www.mhc.tn.gov.in/judis 3 Page of 9
SA.No.287/2022
Deed dated 07.12.1992 stated to have been executed by the maternal
grandfather of the plaintiff. It is seen that the plaintiff also claimed
title to an extent of 88 1/3 acres by virtue of a Sale Deed executed by
Pavayammal. Though the plaintiff claimed title to an extent of 3
acres and 52 cents, the Trial Court has given relief only to an extent
of 3.09 2/3 acres in the suit holding that the property of
Pavayammal, wife of Nalla Gounder should be taken by the plaintiff
and defendants 1, 2 and 3 in equal proportionate.
(5) The defendants contested the suit by filing a written statement
denying the specific averments made in the plaint. The contention of
the appellants/defendants was that there was already a partition
between the plaintiff and the defendants as regards to 'A' suit
schedule property and therefore, the plaintiff cannot file a suit for
partition. Further, it is stated that the plaintiff and her sister along
with their mother, Karuppayammal sold an extent of 75 cents to
Ramasamy Gounder under a registered Sale Deed dated 28.04.1965
and that the plaintiff has lost her share in suit 'B' schedule property.
It is not in dispute that suit 'A' schedule property is an extent of 5.3
acres. However the Trial Court has granted the decree in favour of
https://www.mhc.tn.gov.in/judis 4 Page of 9
SA.No.287/2022
the plaintiff in respect of an extent of 3.09 2/3 acres in suit 'A'
schedule property. The suit in respect of other prayer is dismissed.
Aggrieved by the same, the appellants preferred an appeal in
A.S.No.8/2019 and the defendants 3 to 5 preferred an appeal in
A.S.No.52/2019 before the learned I Additional District Judge,
Erode.
(6) The Lower Appellate Court also confirmed the judgment and decree
of the Trial Court and dismissed the appeals. Aggrieved by the
judgment and decree of the learned I Additional District Judge,
Erode in A.S.No.8/2019 dated 29.10.2021, defendants 1 and
2/appellants have preferred the above second appeal.
(7) The appellants have raised the following substantial questions of law
in the Memorandum of Grounds of Second Appeal.
1. Whether the Courts below are right in holding
that the mere existence of the name of the said
Pavayammal in Ex.B4 confers absolute right over
the 0.88 1/3 acres of land in 'A' schedule property
even on her failure to contribute towards the sale
consideration towards the purchase of the property
is concerned?
2. Whether the Courts below are right in
rejecting the oral partition took place between the
plaintiff and defendants 1 and 2 in the year 1993,
https://www.mhc.tn.gov.in/judis 5 Page of 9
SA.No.287/2022
while the mention of the same oral partition has been
reflected in the subsequently registered Partition
Deed dated 23.10.2007.
(8) It is seen that the genealogy and the relationship between the parties
are not in dispute. The following genealogy is admitted.
Proppana Gounder
SONS
WIFE
Nalla Gounder Sengoda Gounder
Pavayammal
(Died)
SONS
DAUGHTER
Muthusamy Ramasamy
WIFE Nallapa Arumuga Arukkani
Karupayammal
FATHER-IN-LAW Gounder Gounder Gounder (Died)
(Died)
Kannammal Mallika Subramani Nallamuthu Samiathal HUSBAND Karuppusamy
(Plaintiff) (Died) (Defendant 1) (Defendant 2) (Defendant 3) (Defendant 4)
SON
Dhamodharan
(Defendant 5)
(7) From the Genealogy, there is no dispute with regard to the 1st
respondent/plaintiff 's title to an extent of 2.65 acres in suit'A'
schedule property. It is admitted by the appellants in the written
https://www.mhc.tn.gov.in/judis 6 Page of 9
SA.No.287/2022
statement and in the course of arguments that defendants 1 to 3 are
the sons of Nallappa Gounder. Though Nallappa Gounder is also
entitled to 88 1/3 acres in suit 'A' schedule property, their right
beyond the share to which the Nallappa Gounder was entitled,
cannot be accepted unless there is any document. Defendants 1 to 3
have not produced any document to show their title to an extent of
more than 88 1/3 acres. However, it is admitted that both the
plaintiff and defendants 1 to 5 are entitled to share the property of
Pavayammal W/o.Nalla Gounder who is also the son of Thiru
Porappana Gounder. The Trial Court as well as the Lower Appellate
Court after finding that the plaintiff is entitled to 2.65 acres in suit
'A' schedule as the legal heir of Ramasamy Gounder and by virtue of
the Settlement Deed stated to have been executed by her grand
parents, it is further held that the plaintiff is also entitled to half of
88 1/3 acres after the death of Pavayammal W/o Nalla Gounder. It is
admitted that Nalla Gounder died in the year 1940 leaving behind
his wife Pavayammal. After the death of Pavayammal the property
of Nalla Gounder would only devolve on the legal heirs of Sengoda
Gounder. Therefore, the findings of the Courts below with regard to
https://www.mhc.tn.gov.in/judis 7 Page of 9
SA.No.287/2022
the allotment of share and entittlement of the plaintiff/1st respondent
at least to an extent of 44 1/6 cents cannot be disputed. This Court is
of the view that the Courts below have independently applied their
mind to sustain the claim of the plaintiff/1st respondent to an extent
of 3.09 acres in suit 'A' schedule property. This Court find that the
judgment and decree of the Trial Court is well founded and the
issues have been well considered and decided in the light of
pleadings and documents filed by both sides.
(8) Having regard to the fact that the findings of facts by the Courts
below are supported by several documents particularly, the
admission of defendants/appellants in the course of oral evidence,
this Court has no reason to interfere with the judgments and decrees
of the Courts below.
(9) In the result, the Second Appeal is devoid of merits and hence,
dismissed. Consequently, connected Civil Miscellaneous Petition is
closed.
05.04.2022
cda
Internet : Yes
https://www.mhc.tn.gov.in/judis 8 Page of 9
SA.No.287/2022
S.S.SUNDAR, J.,
cda
To
1.The Additional District Court, Erode.
2.The II Additional Subordinate Judge, Erode.
3.The Section Officer, VR Records,
High Court, Chennai.
SA.No.287/2022 and
CMP.No.5944/2022
05.04.2022
https://www.mhc.tn.gov.in/judis 9 Page of 9
