Madras High Court
Arun Kumkar vs Raghava Reddy on 19 January, 2022
S.A.No.229 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.229 of 2017
1. Arun Kumkar
2. Latha ... Appellants
Vs.
1.Raghava Reddy
2.A.Ranganathan
3.Kothandan ... Respondents
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree and judgment in A.S.No.52 of 2014
passed by the Sub Judge, Vellore dated 18.11.2016 confirming the judgment
and decree in O.S.No.127 of 2009 dated 30.07.2014 on the file of Principal
District Munsif, Vellore District.
For Appellants : Ms.R.T.Sundari
For Respondents : Mr.K.Selvakumar for R1
Ms.P.Veena Suresh for R2
1/8
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S.A.No.229 of 2017
JUDGMENT
Unsuccessful plaintiffs are the appellants before this Court.
2. The plaintiffs filed a suit a partition and injunction. According to
the plaintiffs the suit properties are ancestral property and the 3 rd defendant who
is none other than their father is a manager of the joint family sold the
properties to the 1st defendant on 09.07.2007 in turn the 1st defendant sold the
same to the 2nd defendant on 12.01.2009 without the consent and knowledge of
the plaintiffs. The plaintiffs are entitled to 2/3rd share in the property. When
they came to know about the sale deed in favour of the 1st defendant they issued
a registered notice dated 10.02.2009. The 1st defendant issued a reply notice
dated 18.02.2009 stating that the suit properties were allotted to Yengammal
mother of 3rd defendant as her legal heir and therefore she is entitled to sell the
properties. According to them the partition which happened on 11.05.1994,
Yengammal was allotted 'A' schedule property and the 3rd defendant has got
1/5th share i.e 20 cents of land. He being the absolute owner of the undivided
1/5th share is not entitled to sell the entire property. The share allotted to 3rd
defendant in that partition the plaintiffs are entitled to 2/3rd share. In the reply
notice the 1st defendant indicated that he sold the property in favour of the 2nd
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S.A.No.229 of 2017
defendant and therefore they issued a legal notice dated 23.02.2009 which was
replied by the 2nd defendant on 29.02.2009. Since the 3rd defendant is not the
absolute owner of the suit property, the above suit for partition was filed. The
2nd defendant is entitled to disturb the peaceful possession and enjoyment of the
suit property and therefore a prayer for injunction was sought for not to
interfere with their possession and enjoyment of the suit properties.
3. The 1st defendant filed a detailed written statement denying the
averments made in the plaint. He would deny the right of the plaintiffs to sue.
According to them the partition deed dated 11.10.1984 'A' schedule property
was allotted to Yengammal mother of the 3rd defendant. After the life time of
the said Yengammal the 3rd defendant, his wife and other siblings along with
their spouses have jointly executed a registered sale deed in favour of the 1st
defendant on 09.07.2007. He purchased the property for valid consideration
and he has a clear and marketable title over the same. He sold the property for
his family necessity in favour of the 2nd defendant on 12.01.2009. The sale was
a valid sale. Without challenging the sale deed, the plaintiffs are not entitled to
suit for partition. The properties are in possession of the 2nd defendant and
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S.A.No.229 of 2017
therefore the suit is not maintainable for partition and for injunction since they
are not in possession of the property, the relief cannot be granted as the suit was
not property valued.
4. The Trial Court after framing appropriate issues dismissed the suit.
On appeal, the First Appellate Court has confirmed the decree and judgment
passed by the Trial Court and dismissed the appeal. Aggrieved over the same,
the present Second Appeal has been preferred.
5. The Second Appeal was admitted on the following substantial
question of law on 24.03.2017.
“ 1. Whether the 3rd defendant is right in law in
alienating the schedule mentioned properties without
concurrent and consent of the appellants/plaintiffs as he
also succeeded to the estate of his mother, who died
intestate?”
6. Heard both sides.
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S.A.No.229 of 2017
7. According to the learned counsel appearing for the appellants the
property is an ancestral property and therefore they are entitled to 1/3rd share in
the property allotted to their father Kothandan by way of partition dated
11.05.1984. Since they were out of their native place, the sale made by the 3rd
defendant in favour of the 1st defendant and the subsequent sale made by the 1 st
defendant in favour of the 2nd defendant are not binding upon them and they are
entitled to partition. The 3rd defendant sold the property as if he is the absolute
owner. Therefore, the sale will not be binding and they are entitled to claim
2/3rd share in the property.
8. It is an admitted fact that the properties belong to Yengammal and
it is her ancestral property. She had 3 sons. The father of the plantiffs is one of
the son. The said Yengammal partitioned the property along with her sons on
11.05.1984 and allotted separate shares to them after retaining one property in
her name. Thereafter, the said Yengammal also died thereby her sons are
entitled to equal shares. As per Sec. 15 of the Hindu Succession Act, when a
female Hindu dies intestate the property shall devolve on the legal heir as per
the rules set out in Sec.16, as per which the property first devolve on sons, then
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S.A.No.229 of 2017
daughters and her husband. Admittedly, as per the above provision sons of
Yengamal were entitled to the property of their mother. The plaintiffs are not
entitled to any share in the property of Yengammal or through her son
Kothandan the father of the plaintiffs. Since the property devolve from the
mother of the 3rd defendant becomes the absolute owner of the property and as
such the plaintiffs cannot claim coparcenership in the suit property. The First
Appellate Court has rightly found that the property was partitioned as early as
in the year 1984. Even assuming that it is a coparcenery property, the plaint
averments say that the 3rd defendant as a manager sold the property. The sale of
ancestral property by Karta is permissible. The plaintiffs have not come out
with a case that the property was not sold for any legal necessity. But they have
stated that they are entitled to a share in their grand mother's property. But as a
manager of the joint family the 3rd defendant is entitled to sell the property.
9. Even assuming that the daughters have become coparcener by
birth, the amendment came into effect only from 2005. Therefore, the 2nd
defendant is not entitled to claim the share as coparcener in the property which
was already partitioned. Therefore, the irresistible fact remains that Sec.15
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S.A.No.229 of 2017
covers rules of Succession and therefore the plaintiffs have no right to claim
partition. Therefore, it is clearly proved that the 3rd defendant as the absolute
owner is entitled to sell the property. Further, suit was filed on the basis that
the plaintiffs were in joint possession. On the other hand the property has
changed hands from the 3rd defendant to 1st defendant from 1st defendant to 2nd
defendant. The evidence on record establish that the 2nd defendant has
constructed a building and is running an educational institution after getting
affiliation from the University. In that event the plea that the plaintiffs are in
joint possession is false and that they are not in joint possession. Therefore,
the finding that the suit was not properly valued is also correct. The question of
law is answered against the plaintiffs. Accordingly, the Second Appeal stands
dismissed. There shall be no order as to costs.
19.01.2022.
Internet:Yes
Index:Yes/No
To
1.The Sub Judge, Vellore
2.The Principal District Munsif, Vellore
https://www.mhc.tn.gov.in/judis
S.A.No.229 of 2017
M. GOVINDARAJ, J.
kpr
S.A.No.229 of 2017
19.01.2022
https://www.mhc.tn.gov.in/judis
