Madras High Court
Palaniammal vs Kesavan @ Vaiyapuri on 20 April, 2022
S.A.No. 289 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.289 of 2014
and
M.P.No.1 of 2014
Palaniammal .... Appellant
Vs
1. Kesavan @ Vaiyapuri
2. Kandayee
3. Minor.Shobika
Rep by her next friend Kesavan @ Vaiyapuri
4. Thangammal
5. K. Arasu .... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 12.11.2013 in A.S.No.9 of 2013 on the
file of the Principal District Judge, Namakkal confirming the Judgment
and Decree dated 02.11.2012 in O.S.No.138 of 2008 on the file of the
Subordinate Court, Tiruchengode, Namakkal District.
For Appellant : Mr.I.C.Vasudevan
For Respondents : Mr.E.P.Senniyangiri for R1 to R4
JUDGMENT
The plaintiff is the appellant in this second appeal.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
2. The plaintiff filed the suit seeking for the relief of declaration
to declare the alienation of the 1/5th share in the 'B' Schedule property as
null and void and not binding on the plaintiff and for a decree of partition
of 'A' and 'C' Schedule properties and allotment of 1/5th share in those
properties.
3. The first defendant is the brother of the plaintiff. The second
defendant is the mother of the plaintiff. The third defendant is the
daughter of the first defendant and the fourth defendant was the
subsequent purchaser from the first and second defendants. It is further
stated that the father of the plaintiff late Muthusamy died intestate in the
year 1970 leaving behind the plaintiff and the defendants 1 and 2 as his
legal heirs. The further case of the plaintiff is that the suit properties are
the ancestral properties of late Muthusamy and that she is entitled for a
share in the suit properties by virtue of the 2005 Amendment Act. It is
further stated that the first and second defendants alienated a portion of
the suit property without the consent and knowledge of the plaintiff and
therefore the same is not binding on the plaintiff. Since the defendants
were not coming forward to partition the properties and allot the share of
the plaintiff, the suit came to be filed seeking for the relief mentioned
supra.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
4. The defendants filed a written statement and they took a stand
that the suit properties are the self-acquired properties of the paternal
grandfather Kandappa Gounder. He executed a Will dated 20.01.1978,
marked as Ex.B1 in favour of the first defendant and the second
defendant was made to represent the first defendant in her capacity as the
natural guardian. On the demise of the said Kandappa Gounder, the first
defendant became the absolute owner of the suit properties. Thereafter,
they had executed sale deeds in favour of third parties and sold portions
of the suit properties in their own right. The defendants took a further
stand that the husband of the plaintiff even acted as the attesting witness
when two portions of the suit properties were sold in the year 1988.
Therefore, it was contended that the plaintiff was very much aware about
the Will executed by Kandappa Gounder and also the fact that the suit
properties were the self-acquired properties. Accordingly, the defendants
denied the very claim of the plaintiff seeking for a share in the suit
properties and sought for the dismissal of the suit.
5. Both the Courts below, on considering the facts and
circumstances of the case and on appreciation of oral and documentary
evidence, concurrently held against the plaintiff and dismissed the suit.
Aggrieved by the same, the plaintiff has filed this second appeal.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
6. Heard, Mr.I.C.Vasudevan, learned counsel for the appellant and
Mr.E.P.Senniyangiri, learned counsel for the respondents 1 to 4. This
Court carefully considered the materials available on record and the
findings of both the Courts below.
7. Both the Courts below primarily considered the nature of the
properties since the plaintiff took a stand that the suit properties are the
ancestral properties of Kandappa Gounder. The Courts below in the first
place took note of the conduct of the plaintiff in not even mentioning
about the Will dated 20.01.1978 in the plaint inspite of having
knowledge about the same. It is a registered Will that was executed by
Kandappa Gounder in favour of his grandson viz., the first defendant.
By virtue of the Will, the suit properties were bequeathened in favour of
the first defendant. The husband of the plaintiff was examined as PW.2
and he admitted that he had knowledge about Ex.B1-Will. He had
purchased properties under Ex.A15-Sale Deed dated 23.06.1995, from
the first and second defendants. In this sale deed, there is a specific
mention about the Will, marked as Ex.B1. That apart, in the sale deeds,
marked as Exs.A13 and A14, there is a specific mention about Ex.B1-
Will and the husband of the plaintiff had stood as a attesting witness in
these documents.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
8. The Courts below took into consideration all these documents
and the evidence of P.W.2 and found that the plaintiff was aware about
the Ex.B1-Will and had never raised any objections or questioned its
validity.
9. In the Ex.B1-Will, it has been clearly stated that the properties
are the self-acquired properties of Kandappa Gounder. This was the
basis of which Ex.A15-Sale Deed was executed in favour of the husband
of the plaintiff and Exs.A13 and A14-Sale Deeds were executed wherein
the husband of the plaintiff stood as the attesting witness. It is under
these circumstances, the plaintiff, all of a sudden, turned around and
questioned the very basis of the sale deeds and took a stand that the
properties are ancestral in nature and that the said Kandappa Gounder did
not have the right to execute the Will. Such a stand taken by the
plaintiff was rightly rejected by both the Courts below and it was held
that the properties in question were the self-acquired properties of
Kandappa Gounder and by virtue of Ex.B1-Will the first defendant
became entitled to those properties.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
10. Both the Courts below have also gone into the question of
applicability of the 2005 Amendment Act and they held that the plaintiff
cannot take advantage of the amendment since, the properties are the
self-acquired properties of Kandappa Gounder. There is no ground to
interfere with this finding also.
11. In the considered view of this Court, the findings rendered by
both the Courts below does not suffer from any perversity. In any event,
no substantial question of law is involved in the second appeal.
12. In the result, the second appeal is dismissed. Consequently,
connected Miscellaneous Petition is closed. Considering the facts and
circumstances of the case, there shall be no order as to costs.
20.04.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The Principal District Judge, Namakkal
2.The Subordinate Judge, Tiruchengode, Namakkal Disitrict.
https://www.mhc.tn.gov.in/judis
S.A.No. 289 of 2014
N. ANAND VENKATESH, J.
Lpp
S.A.No.289 of 2014
and
M.P.No.1 of 2014
20.04.2022
https://www.mhc.tn.gov.in/judis
