Madras High Court
Chinnasamy Naicker (Died) ... 1St ... vs Kuppusamy Naicker (Died) ... 1St ... on 18 April, 2022
1 S.A.(MD)No.537 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.537 of 2010
Chinnasamy Naicker (Died) ... 1st Respondent / 1st Plaintiff
1. Manimegalai ... 1st Appellant / 2nd Respondent /
3rd Plaintiff
2. Venkittammal ... 2nd Appellant / 3rd Respondent /
2nd Plaintiff
3. Pushpam ... 3rd Appellant / 4th Respondent /
4th Plaintiff
4. Ganesan ... 4th Appellant / 5th Respondent /
5th Plaintiff
Vs.
Kuppusamy Naicker (Died) ... 1st Appellant / 1st Defendant
1. Subbammal ... 1st Respondent /2nd Appellant
2. Venkidusamy ... 2nd Respondent /3rd Appellant
3. Neelakannan ... 3rd Respondent /4th Appellant
4. Krishnasamy ... 4th Respondent /5th Appellant
5. Marammal ... 5th Respondent /6th Appellant
Lakshmi Ammal (Exonerated)
... 6th Respondent / 2nd Defendant
6. Nagaraj ... 6th Respondent / 7th Respondent /
3rd Defendant
Dhanam Ammal (Died) ... 8 Respondent / 4th Defendant
th
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1/10
2 S.A.(MD)No.537 OF 2010
7. Siron Mani
8. Dhivya
9. Keerthika
(R-7 to R-9 were brought on record vide Order
dated 14.02.2022 in C.M.P.(MD)No.1161 of 2022)
... Respondents 7 to 9 /
Respondents 7 to 9
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.632
of 2004 dated 01.03.2010 passed the learned Additional
Subordinate Judge, Dindigul, by setting aside the Judgment
and Decree passed in O.S.No.55 of 1995 dated 14.10.2004 by
the learned District Munsif – cum – Judicial Magistrate,
Vedasandur.
For Appellant : M/s.N.Tamilmani
For R-1 to R-5 &
R-7 to R9 : Mr.H.Lakshmi Shankar,
for Mr.S.Harihara Ramachandran.
For R-6 : No appearance.
***
JUDGMENT
The plaintiffs in O.S.No.55 of 1995 on the file of the
District Munsif - cum – Judicial Magistrate, Vedasandur, are
the appellants in this second appeal.
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2. The suit was for partition by metes and bounds of
' A ' schedule property out of the ' B ' schedule property and
for putting the plaintiffs in separate possession of the same.
The case of the plaintiffs is that the first defendant
Kuppusamy Naicker and the first plaintiff Chinnasamy Naicker
who are brothers were born to Late.Neelama Naicker through
his first wife Chellammal. Neelamma Naicker during his
lifetime settled a number of properties in favour of the first
plaintiff and the first defendant under settlement deed dated
18.03.1955 (Ex.A.1). The specific case of the plaintiffs is that
32 cents in old survey No.512 and an extent of 1 acre and 11
cents in survey No.514/2 were retained by the first plaintiff
and the first defendant, while the rest of the properties were
alienated either individually or jointly. Since the first
defendant did not come forward for an amicable partition of
the retained items, the suit came to be laid. The contesting
defendant filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial Court
framed necessary issues. During the pendency of the suit,
Chinnasamy Naicker passed away and his legal heirs had
come on record. The fifth plaintiff examined himself as P.W.1
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and two other witnesses were examined. Ex.A.1 to Ex.A.13
were marked. The first defendant examined himself as D.W.1
and two other witnesses were examined. Ex.B.1 to Ex.B.15
were marked. After considering the evidence on either side,
the trial Court by judgment and decree dated 14.10.2004
granted preliminary decree as prayed for. Aggrieved by the
same, the contesting defendant filed A.S.No.632 of 2004
before the Additional Sub Court, Dindigul. During the
pendency of the first appeal, Kuppusamy Naicker passed away
and his legal heirs had come on record. After considering the
evidence on record, the first appellate Court by the impugned
judgment and decree dated 01.03.2010 reversed the decision
of the trial Court and allowed the appeal and dismissed the
suit. Challenging the same, this second appeal came to be
filed.
3. The second appeal was admitted on 29.06.2010 on
the following substantial questions of law:-
“ 1. Whether the first appellate Court is
correct by allowing the appeal accepting oral
evidence without pleadings which is not admissible
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in law?
2. When Ex.A.2 clearly stated about the
properties are common or in common enjoyment
whether the first appellate Court is right by
rejecting the above exhibits and allowed the
appeal?
3. Whether the first appellate Court is
right by holding that when a plaintiff filed suit for
partition entire properties belonged to the
ancestor should be unpartitioned? ”
4. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
5. Per contra, the learned counsel appearing for the
contesting respondents submitted that the impugned
judgment and decree do no call for any interference.
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6. I carefully considered the rival contentions and
went through the evidence on record.
7. There is no dispute that the first plaintiff
Chinnasamy Naicker and the first defendant Kuppusamy
Naicker are siblings born to one Neelama Naicker through his
first wife. It is also true that Neelama Naicker executed a
settlement deed dated 18.03.1955 (Ex.A.1) settling number of
items in favour of the first plaintiff and the first defendant.
8. The learned counsel appearing for the contesting
respondents fairly stated that item No.6 of ' A ' schedule is a
common pathway and that it cannot be partitioned. This
submission made by the learned counsel is placed on record.
Therefore, the contest revolves only around item Nos.1 to 5.
Item Nos.1 and 2 are traceable to the settlement deed dated
18.03.1955. The learned counsel appearing for the appellants
took me through the deposition of Kuppusamy Naicker and
tried to impress upon me that item Nos.1 and 2 of ' A '
schedule property will have to be given to the appellants.
Though this submission of the learned counsel appearing for
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the appellants is on the face of it attractive, on a deeper
scrutiny, it does not have any merit. This is because the first
plaintiff executed a settlement deed dated 03.09.1963 in
favour of his wife Dhanam Ammal. The said settlement deed
was marked as Ex.B.3 by the first defendant.
9. I went through the description of the property in
the schedule. The first plaintiff while describing item No.2 in
the schedule of the settlement deed, one of the four
boundaries is as under:-
“ To the west and north of common pathway, to the
east of Lakshmi Ammal's land and to the south of my land and
Kuppusamy's land. ”
The land measuring 12 cents was settled in favour of his wife
by the first plaintiff under Ex.A.3. This description clearly
indicates that the lands that were jointly owned and enjoyed
by the first plaintiff and the first defendant had already been
partitioned. The first appellate Court had catalogued such
alienations made by the respective parties. This clearly belies
the claim of the first plaintiff that two items out of the suit
items settled in his favour under Ex.A.1 was retained in
common. Item Nos.3, 4 and 5 in ' A ' schedule are referable to
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' B ' schedule. It is beyond dispute that item Nos.3, 4 and 5
in ' B ' schedule property were not purchased in common by
the parties. The first plaintiff made individual purchases. The
first defendant also made individual purchases. Of course they
had purchased different portions out of the same survey
number. The names of both the parties are found in the
revenue records. That will not mean that they are enjoying the
properties in common. What had been separately purchased
will be enjoyed separately by the respective parties. That is
why, the first appellate Court rightly allowed the appeal. The
suit for partition was clearly not maintainable. The substantial
questions of law are answered against the appellants.
10. This second appeal is dismissed. No costs.
18.04.2022
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.
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To:
1. The Additional Subordinate Judge,
Dindigul.
2. The District Munsif –cum–Judicial Magistrate,
Vedasandur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.537 of 2010
18.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
