Madras High Court
Valarmathi vs Marudhambal on 20 June, 2022
S.A.No.464 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.464 of 2022
and
C.M.P.No.9540 of 2022
1. Valarmathi
2. Sethuraman
3. Thamaraikani
4. Perumal
5. Minor.Ramya
6. Minor Rajaraman
(Minors 5 & 6 Rep. their Next Friend Perumal).
7. Chidambaram
8. Minor Rajaraja
(Minor Rep. by his Next Friend Chidambaram)
... Appellants/Appellants/Defendants 2 to 4 & 7 to 11
Vs.
1.Marudhambal
2.Sundarambal
3.Jothimani
... Respondents/Respondents/ Plaintiffs
https://www.mhc.tn.gov.in/judis
S.A.No.464 of 2022
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and decree dated 16.08.2021 passed in
A.S.No.20 of 2018 on the file of the Principal District Court, Ariyalur by
confirming the judgment and decree dated 04.04.2018 passed in
O.S.No.116 of 2006 on the file of the Subordinate Court, Ariyalur.
For Appellants : Mr.N.Elayaraja.
JUDGMENT
The un-successful defendants before the Courts below have filed the
above Second Appeal challenging the Judgment and Decree passed in the
O.S.No.116 of 2006 on the file of the Subordinate Court, Ariyalur which is
confirmed by the Judgment and Decree of the Principal District Judge,
Ariyalur in A.S.No.20 of 2018. The facts in brief are as follows:-
2. The parties are referred to in the same litigative status as before the
Trial Court.
3. The plaintiffs had filed the above referred suit for partition and
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S.A.No.464 of 2022
separate possession of their 3/8th share in the suit property. It is their case
that the suit properties were the ancestral properties of one Mr.Appasamy,
the father of the plaintiffs and the defendant (the suit was originally filed
against one Mr.Ganapathi and on his death on 27.06.2009 his legal
representatives were brought on record). He had died intestate in 2003
leaving behind him the surviving plaintiffs and the deceased defendant as his
legal heirs to succeed to his estate. The plaintiffs would contend that their
father had every intention of providing equally for all his children. However
after the demise of the father, the deceased defendant had clandestinely
obtained a Patta in his exclusive name. The plaintiffs became aware about
this act only on 27.08.2006 and they had immediately obtained documents
to confirm the same. This act therefore made it impossible for the plaintiffs
to continue with the joint family and therefore, they had sought for a
partition of the suit properties. The plaintiff have also alleged that the
defendant had on 20.08.2006 committed matricide. The plaintiffs would
contend that their mother had a 1/10th share in the property and on her
death it devolved on the plaintiffs and defendants therefore each of them
were entitled to a 1/40th share in the suit properties. The plaintiffs and the
defendants are therefore entitled to a 1/8th share each over the suit
properties. Since the defendants had not come forward to effect the partition
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S.A.No.464 of 2022
the plaintiffs had issued a legal notice dated 06.09.2006, demanding
partition of the suit properties. The defendant had received the notice and
issued a reply containing false statement, therefore, the plaintiffs have come
forward with the instant suit.
4. The deceased defendant had filed a written statement dated
24.07.2007, in which he had contended that the suit properties had devolved
on him under a family arrangement. It is his case that he had obtained a
Patta in his name only on the basis of the family arrangement. The
defendant had set up an oral family arrangement dated 10.11.1999 between
his father, Appasamy and himself. He would submit that the family
arrangement itself had come into place in the presence of certain Panchayat
Members. On 17.08.2006, he had settled the properties on his son
Sethuraman. The defendant further submitted that on the very same day he
has also executed a settlement deed in favour of his other son Thamaraikani.
The settlees have taken possession of the property settled on them. On
23.08.2006 he had executed a settlement deed in favour of his wife settling
the properties purchased by the defendants and also the properties obtained
in the family arrangement to his wife. The defendants would further contend
that the suit has been filed only as a counterblast since he had not given his
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S.A.No.464 of 2022
daughter Senthamilselvi in marriage to the son of his sister, the plaintiff
herein. He therefore sought for the dismissal of the suit. Therefore, from a
reading of the written statement the defendants seek to deny the plaintiff's
share on the basis of a family arrangement that had been entered into
between himself and the deceased Appasamy.
5. The learned Subordinate Judge, Ariyalur before whom the suit
O.S.No.116 of 2006 was pending by Judgment and Decree dated
04.04.2018 was pleased to decree the suit granting a preliminary decree of a
3/8th share of the plaintiffs. The learned Subordinate Judge has observed
that in the settlement deed executed by the deceased defendant in favour of
his wife and children, there is no mention about this oral family arrangement
dated 10.11.1999. The said Judgment and Decree was taken up on appeal to
the Principal District Court Ariyalur in appeal A.S.No.20 of 2018 by the
legal representatives of the deceased's defendants. The learned District
Judge had also dismissed the appeal and upheld the Judgment and Decree of
the Trial Court. Challenging the same the appellants are before this Court.
6. The defendants have claimed an exclusive right to the suit
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S.A.No.464 of 2022
properties on the basis of the alleged oral family arrangement dated
10.11.1999. This family arrangement has not been proved. The settlement
deeds which have been executed by the deceased defendant in favour of his
sons and wife are all subsequent to this alleged oral family arrangement.
However as observed by the learned Judge the settlement deed does not
make any mention about the alleged oral family arrangement. In fact, a
reading of the settlement deeds which have been marked as Exbs.P.1 to P.3
does not give any details as to how the deceased defendant traced an
exclusive title to the suit schedule properties.
7. A mere perusal of the grounds of appeal would show that the
Judgement of the Courts below is challenged on the ground that they have
not considered the oral family arrangement between the parties, and that the
Decree of the Trial Court in erroneous as it has granted partition of a 3/8th
share as against 3/4th share claimed by the plaintiffs. The 1st ground of
challenge is already dealt with in the foregoing paragraph. As regards the
2nd ground of challenge the same has been wrongly raised since the
plaintiffs had, in the plaint, only sought for a partition of their 3/8th share in
the suit properties.
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S.A.No.464 of 2022
7. The appellants have not made out any grounds for setting aside the
concurrent Judgment and Decree of the Courts below and further they have
not made out any Substantial Question of law. Consequently, the Second
Appeal is dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed.
20.06.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The Principal District Judge Ariyalur.
2.The Subordinate Court Ariyalur.
P.T. ASHA, J,
shr
https://www.mhc.tn.gov.in/judis
S.A.No.464 of 2022
S.A.No.464 of 2022
and
C.M.P.No.9540 of 2022
20.06.2022
https://www.mhc.tn.gov.in/judis
