Madras High Court
S.Balasundaram vs Chellammal on 8 June, 2022
S.A.No.333 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.333 of 2020
and
C.M.P.No.6803 of 2020
1.S.Balasundaram
2.S.Rameshkumar ...Appellants
Vs
1.Chellammal
2.Kannagi
3.Chitra
4.Santhi
5.R.Muralikumar
6.Kamaladevi
7.V.Gowtham
8.V.Anish ... Respondents
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgement and decree dated 22.08.2019 made in A.S.No.64 of 2018 on the
file of the learned Second Additional District Court, Erode confirming the
judgment and decree dated 05.04.2019 made in O.S.No.226 of 2012 on the
file of the learned Second Additional Sub Court, Erode.
1/14
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S.A.No.333 of 2020
For Appellants : Mr. N.Manoharan
JUDGEMENT
The above appeal is filed challenging the concurrent judgment and
decree in A.S.No.64 of 2018 on the file of the II Additional District Judge,
Erode, confirming the judgment and decree in O.S.No.226 of 2012 passed
by the II Additional Subordinate Judge, Erode.
2. The brief facts necessary for disposing of the above Second Appeal
are herein below narrated.
The case of the Plaintiffs:
(i) The plaintiffs and the defendants 2 to 4 are the sons and
daughters of the first defendant and the deceased Sengottaian. The 5th
defendant is the son of the deceased Pavathal. The Genealogy for morefully
understanding the relationship between the parties is herein below
reproduced:
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S.A.No.333 of 2020
Ramasami Gounder (1958)
= Kuppayammal (19.8.1993)
|
-------------------------------------------------------------
| |
Pavathal (1962) Sengottaian (15.4.1988)
=Thulasimani (2011) = Chellammal (D-1)
T.Velusami (D-5) |
D7 to D9 |
-----------------------------------------------------------------------------
| | | | |
Kannaki Chitra Shanthi S.Balasundaram S.Ramesh Kumar
(D-2) (D-3) (D-4) (P-1) (P-2)
(ii) The plaintiff would contend that the II item of the suit schedule
properties is the ancestral property of the said Ramasamy Gounder, the
plaintiff's grand father and his brother Muthu Gounder. It was the case of
the plaintiffs that from and out of the income derived from the ancestral
properties, the said Ramasamy Gounder and his brother had jointly
purchased Item I of the suit schedule properties under a Sale Deed dated
05.02.1932. The said Muthu Gounder died in the year 1957, leaving behind
his brother, Ramasamy Gounder as his sole legal heir. Therefore,
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S.A.No.333 of 2020
Ramasamy Gounder became the owner of the suit I and II item of the suit
schedule properties.
(iii) It is the further case of the plaintiffs that Ramasamy Gounder
died intestate in the year 1958 leaving behind him surviving his wife, named
Kuppayammal, daughter, named, Pavathal, and son, named Sengottaian
(father of the plaintiffs and defendants 2 to 4). The said Kuppayammal died
in the year 19.08.1993 and her daughter died intestate in the year 1962,
leaving behind her surviving her husband, Thulasimani and her son, the 5th
defendant as her legal heirs to succeed her estate. The said Thulasimani
also passed away in the year 2011 and the father of the plaintiffs died on
15.04.1988. Therefore, the plaintiffs and defendants 2 to 4 alone are
members and co-parceners of the Hindu undivided Family.
(iv) The plaintiffs, in the 3rd week of April 2012, had approached
the Indian Bank, Erode Branch for availing certain loan facilities for their
agricultural activities. The Bank had requested them to obtain a legal
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S.A.No.333 of 2020
opinion from the panel Advocate. The panel Advocate therefore directed
the plaintiffs to obtain the Encumbrance Certificate in respect of the suit
properties. Only when they had obtained the Encumbrance Certificate, the
plaintiffs had come to know that their father had executed a registered
Release Deed dated 23.02.1981 in favour of his mother, Kuppayammal with
reference to the suit properties. The said Kuppayammal had in turn settled
these properties on the 5th defendant the son of her daughter Pavathal under
two Settlement Deeds dated 04.10.1989 and 06.10.1989. The plaintiffs
would therefore contend that on the date of the execution of the Release
Deed, they were aged 10 and 11 years respectively and since the properties
were ancestral, one of the sharers cannot execute a release deed in respect of
these properties. Therefore, the release deed is not binding upon the
plaintiffs. The subsequent Settlement Deed executed by the said
Kuppayammal consequently would also not bind the plaintiffs. Considering
the fact that the suit properties are ancestral and joint family properties of
plaintiffs and defendants 1 to 5, the plaintiffs are entitled to a 21/108 share,
the 1st defendant is entitled to a 12/108 share, defendants 2 to 4 are entitled
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S.A.No.333 of 2020
to a 12/108 share and the 5th defendant is entitled to a 18/108 share in the
suit properties. The plaintiffs had come to know that the 5th defendant was
taking steps to alienate the properties with an intent to alter the existing
features. Therefore, the plaintiffs had come forward with the above suit,
seeking partition of their 42/108 contiguous share in the suit schedule
properties. Pending suit, the 5th defendant died and his legal representatives
were brought on record as defendants 7 to 9.
3. The written statement of the defendant-5
The 5th defendant prior to this death had filed a written statement
inter-alia admitting the relationship between the parties, but however,
contending that the allegation that the plaintiff and the defendants 1 to 4 are
the members and co-parceners of the Hindu undivided Family, was totally a
false statement. The 5th defendant would submit that the plaintiffs are
guilty of suppression in as much as they had not made averments about the
earlier partition suit filed by them in O.S.No.245/76 on the file of the
Principal Subordinate Court, Erode, in which, a compromise decree was
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S.A.No.333 of 2020
passed. By reason of this partition, the co-parcenery nature of the property
had ceased to exist. On the basis of this compromise decree in O.S.No.245
of 1976, the plaintiffs had also alienated certain items allotted to them each
would clearly show that the compromise was given effect to. The 5th
defendant would submit that the plaintiffs and the defendants 1 to 4 have no
right, title or interest to the suit properties. The suit properties were in the
exclusive possession and enjoyment of the Kuppayammal till the settlement
Deed was executed in favour of the 5th defendant. Thereafter, the 5th
defendant was enjoying the property by mutating the revenue records,
electric motor service connection etc., The defendants would further
contend that the Release Deed dated 23.02.1981 is a written document
acknowledging the oral family arrangement entered into between the father
of the plaintiffs, Sengottaian and his mother, Kuppayammal. The
defendants had also submitted that the suit is bad for partial partition and is
therefore, liable to be dismissed.
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S.A.No.333 of 2020
4. Additional Written Statement of the defendant-5
An additional written statement was filed by the 5th defendant on
04.03.2014, wherein, the 5th defendant had pleaded that the deceased
Muthu Gounder, the brother of Ramasamy Gounder, had bequeathed his
share in favour of plaintiff's father Sengottaian under a Registered Will
dated 04.09.1944. The grand father of the plaintiffs, Ramasamy Gounder
was no more, which is evident from a perusal of the Will dated 04.09.1944.
After the death of Ramasamy Gounder, his wife Kuppayammal and son
Sengottaian derived a 1/2 share respectively in the suit properties and after
the coming into force of the Hindu Succession Act, 1956, the life estate of
Kuppayammal had enlarged into her absolute properties. On 23.02.1981,
Sengotaiyan had also executed a Release Deed in favour of his mother,
Kuppayammal, who in turn, had settled the properties in favour of the 5th
defendant. Therefore, the 5th defendant is the absolute owner of the suit
properties.
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S.A.No.333 of 2020
5. Trial Court:
The II Additional Subordinate Judge, Erode had framed the following
issues, which are herein below extracted:
1) Whether the plaintiff is entitled to the relief of
partition as prayed for?
2) Whether the plaintiff is entitled to 56/108 shares as
prayed for?
3) Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for against 5th defendant?
4) Whether the compromise decree passed in
O.S.No.245/76 is true?
5) Whether the suit is not maintainable for bring his
entire property for partition in this suit?
6) To what relief the plaintiff is entitled for?
Thereafter, the learned Judge had framed the following additional issues:
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S.A.No.333 of 2020
Additional issues:
1) Whether the suit as framed is maintainable?
2) Whether the suit is bad for non joinder of parties?
6. The second plaintiff examined himself as P.W-1 and marked
Exhibits A1 to A20. On the side of the defendants, 8th defendant examined
as D.W.1 and one Sengottaian had adduced evidence as D.W-2 and Exhibits
B1 to B17 were marked.
7. The learned Subordinate Judge, Erode on an elaborate
consideration of the evidence on record held that the plaintiffs had failed to
prove the ancestral nucleus and that there was a surplus from the same,
which provided the consideration for the purchase of the other properties.
The learned Judge held that the plaintiffs had miserably failed to prove that
this is an ancestral nucleus and in the absence of the same, the plaintiffs
cannot succeed with their case that the properties were ancestral. That
apart, the trial Court has relied upon Exs.B-1 and B2, which are the plaint
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S.A.No.333 of 2020
and decree in the suit O.S.No.245 of 1976 filed by the plaintiffs on the file
of the Subordinate Court, Erode for partition. The said suit was
compromised between the parties. The plaintiffs, who have come forward
with the suit for partition, have not included those properties, which are the
subject matter of earlier suit O.S.No.245 of 1976, which would clearly show
that the compromise decree had been acted upon. The learned Judge
ultimately dismissed the suit. Aggrieved by the above judgment and Decree,
the plaintiff had filed A.S.No.64 of 2018 on the file of the II Additional
District Court, Erode. The learned Judge also concurred with the judgment
and decree of the trial Court and dismissed the appeal. Aggrieved by the
same, the plaintiffs are before this Court.
8. Heard Mr.N.Manoharan, who made his submissions seeking to
admit the above Second Appeal.
9. A perusal of the records, particularly, the pleadings and the
judgment of the Courts below, show that the plaintiffs' case is that the suit II
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S.A.No.333 of 2020
item of the properties, which is ancestral, had formed the nucleus for the
purchase of the properties described as Item No.II in the suit schedule
properties. The II item of the suit properties is a house site measuring an
extent of 1200 sq.ft. The plaintiffs have not established that this house site
yielded the income, which was utilised for the purchase of Item 1 of the suit
schedule properties. In the absence of this proof, the plaintiffs' contention
that the I Item of the suit properties, was purchased from the ancestral
nucleus, has to necessarily fail. Further, the plaintiffs have not denied the
earlier suit for partition in O.S.No.245 of 1976, which had ended in
compromise. Pursuant to this, their father has executed a Release Deed in
favour of their mother. On the basis of this Release Deed, Kuppayammal,
the plaintiffs' grand mother, had also executed a Settlement Deed in favour
of the 5th defendant. The Release Deed has been executed by the plaintiffs'
father as early as in the year 1981. This Release Deed is not sought to be set
aside by the plaintiffs. Both the Courts below had extensively considered
the evidence to come to the conclusion that the plaintiffs are not entitled to
a decree for partition. The plaintiffs have not been able to establish that the
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S.A.No.333 of 2020
findings of the Courts below are perverse and requires re-consideration.
The plaintiffs have also not made out any question of law, much less a
substantial question of law, to persuade this Court to admit this Second
Appeal.
15. In the result, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
08.06.2022
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The learned II Additional District Court, Erode
2. The learned II Second Additional Sub Court, Erode.
2. The Section Officer, V.R.Section, High Court, Madras
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S.A.No.333 of 2020
P.T.ASHA, J.,
srn
S.A.No.333 of 2020
and
C.M.P.No.6803 of 2020
08.06.2022
https://www.mhc.tn.gov.in/judis
