Madras High Court
Jaya vs Vanaja on 21 April, 2022
SA.No.326/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.326/2022
Jaya .. Appellant /
Plaintiff
Vs.
1.Vanaja
2.P.Jayaraman .. Respondents
/ Defendants
Prayer:- Second Appeal preferred under 100 of CPC against the judgment
and decree passed in AS.No.7/2020 dated 24.11.2021 on the file of the
learned Principal Subordinate Judge, Dharmapuri, as against the
confirming the judgment and decree passed in OS.No.34/2011 dated
13.12.2019 on the file of the learned District Munsif, Dharmapuri.
For Appellant : Mr.R.Kuyilan
https://www.mhc.tn.gov.in/judis 1
SA.No.326/2022
JUDGMENT
(1) The plaintiff in the suit in OS.No.34/2011 on the file of the learned
District Munsif, Dharmapuri, has filed the above Second Appeal.
(2) The appellant, as plaintiff, filed the suit in OS.No.34/2011 for the
relief of mandatory injunction to direct the defendants to execute
the Sale Deed in favour of the plaintiff in respect of the suit
property and for a declaration that the Sale Deed executed by the
1st defendant, her husband and one V.Anitha, in favour of the 2nd
defendant dated 15.03.2010 in Doc.No.1094/2010 as illegal and
not binding on the plaintiff.
(3) Brief facts that are set out in the plaint are that the suit property
originally belonged to the plaintiff's father Kuppusamy Naidu
along with other properties. It is stated that the said Kuppusamy
Naidu had three daughters, namely, one Baby, Vanaja/1st defendant
and Jaya/plaintiff. It is admitted that the said Kuppusamy Naidu
had no male heir. It is the further case of the plaintiff/appellant
that Kuppusamy Naidu died in the year 1993 and that the plaintiff,
1st defendant and their elder sister Baby inherited the properties of
SA.No.326/2022
their father and they were in common enjoyment of the same. It is
to be noted that the appellant/plaintiff herself admitted that a Deed
of Partition was executed by the 1st defendant, one Gopi Naidu and
the plaintiff in respect of the properties. It is admitted by the
appellant/plaintiff that the said Gopi Naidu is the son of
Muniyappa Naidu, who is the husband of the deceased Baby. The
appellant/plaintiff admitted that the 1st defendant executed a Sale
Deed in respect of 1/3rd share in the suit property in favour of the
2nd defendant who is a stranger. Stating that the 1st defendant had
not intimated her intention to sell the suit property nor offered the
property to the appellant/plaintiff who has the right of pre-emption,
filed the above suit on the ground that she is entitled to the
privilege under Section 22 of the Hindu Succession Act.
(4) The said suit was contested by the 2nd defendant by filing a written
statement refuting all the averments made in the plaint. It was
contended by the 2nd defendant that the suit is not maintainable and
it is liable to be dismissed on the ground of non-joinder of
necessary parties. It is stated by the 2nd defendant that the
SA.No.326/2022
subsequent purchasers, namely, Muniyappa Naidu and his son
Gopi Naidu were not added as parties to the suit. The 2 nd defendant
also stated that Section 22 of the Hindu Succession Act is not
applicable to the present suit as partition had already been effected
under a registered Partition Deed.
(5) The Trial Court, after framing necessary issues, dismissed the suit
holding that the parties have entered into a partition and therefore,
there is no scope of invoking Section 22 of the Hindu Succession
Act. Aggrieved by the judgment and decree of the Trial Court, the
appellant preferred an appeal in AS.No.7/2020 before the Principal
Sub Court, Dharmapuri and the Lower Appellate Court also
dismissed the appeal holding that the appellant is not entitled to the
relief of mandatory injunction or the relief of declaration since the
property had already been divided among the parties as per the
Partition Deed dated 29.10.1997. Aggrieved by the concurrent
judgments and decrees of the Courts below, the present Second
Appeal is preferred by the plaintiff.
SA.No.326/2022
(6) The appellant has raised the following substantial questions of law
in the Memorandum of Grounds of Appeal:-
A) Whether the Courts below are correct in law in dismissing the
suit filed by the appellant/plaintiff without considering the
scope of Section 22 of the Hindu Succession Act, 1956?
B) Is it not the appellant/plaintiff having preferential right to
acquire the suit property admittedly the suit property belongs
to Kuppusamy Naidu, father of plaintiff and 1st defendant and
they inherit the same after his death?
(7) The learned counsel for the appellant though submitted that the
appellant/plaintiff is entitled to the relief in terms of Section 22 of
the Hindu Succession Act, 1956, he is unable to demonstrate
before this Court as to how the findings of the Courts below on the
question of partition is vitiated. Though an attempt was made by
the appellant/plaintiff before the Courts below that the partition
under Ex.A2 is not valid as one of the heirs, namely, Muniyappa
Naidu, husband of Mrs.Baby, is not a party, it is admitted that the
said Muniyappa Naidu is no more. In such circumstances, the
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parties to the partition are in possession of their exclusive property
and the partition under Ex.A2 has become valid and binding on all
the parties. In view of the factual position that there is a partition
which is binding on all parties, there is no scope for invoking
Section 22 of the Hindu Succession Act.
(8) In view of the factual background of findings of the Courts below,
this Court is unable to appreciate or find any substance in any of
the questions of law raised by the appellant/plaintiff in this Second
appeal.
(9) As a result, the appeal is devoid of merits and hence, the same is
dismissed.
21.04.2022
AP
Internet : Yes
SA.No.326/2022
To
1.The Principal Subordinate Judge,
Dharmapuri,
2.The District Munsif,
Dharmapuri.
3.The Section Officer
VR Section, High Court
Chennai.
SA.No.326/2022
S.S.SUNDAR, J.,
AP
SA.No.326/2022
21.04.2022
https://www.mhc.tn.gov.in/judis 8
