Madras High Court
Pankajam vs Dhakshna Nadar Sangam on 21 March, 2022
S.A.No.198 of 2010
and M.P.No.1 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.03.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.198 of 2010
and
M.P.No.1 of 2010
Pankajam ...Appellant
Vs.
Andallammal (deceased)
1.Dhakshna Nadar Sangam
No.26, Mettu Street,
Ayanavaram, Chennai - 600 023. ... Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 20.04.2009 passed in A.S. No.660 of 2007,
on the file of the V Additional City Civil Court, Chennai, upholding the
decree and judgment dated 31.01.2006 passed in O.S. No.3479 of 1999,
on the file of the XII Assistant City Civil Court, Chennai.
For Appellant : Mr.S.N.Narasimhulu
For Respondent : Mr.G.Thangavel
Page 1 of 12
https://www.mhc.tn.gov.in/judis
S.A.No.198 of 2010
and M.P.No.1 of 2010
JUDGMENT
The unsuccessful plaintiff before both the courts below has
filed the present second appeal.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their ranking
in the present appeal would also be indicated.
3. The plaintiff Pankajam filed a suit for partition of the suit
property into two equal shares and to allot one share to her. She further
prayed for permanent injunction restraining the first defendant Tmt.Andal
Ammal (since deceased) from alienating the suit property to a third party
and for costs. The suit property is described in the plaint schedule as a
house bearing Door No.166, Mettu Street, Ayanavaram, Chennai
600023.
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S.A.No.198 of 2010
and M.P.No.1 of 2010
4. The case of the plaintiff in nutshell is as follows:
The plaintiff is the wife of Late. Subramani who is the son of
Late.Indirani Ammal. Indirani Ammal is the daughter of
Late.Dhamodara Mudaliar born through his third wife. Damodhara
Mudaliar executed a registered Will (Ex.A1) dated 20.10.1939 in favour
of his three sons born through his two wives. As per the Will, the suit
property should be divided into three equal shares by his three sons.
There was also a condition attached to the Will that Indirani Ammal's
interest should be protected and she must be paid a sum of Rs.200/- by
the sons of Dhamodara Mudaliar. Indirani Ammal was residing in a
portion of the suit property. The first defendant forcefully evicted
Indirani Ammal and her family from the suit property. They did not pay a
sum of Rs.200/- as mentioned in the Will (Ex.A1). The plaintiff,
therefore, issued a legal notice dated 13.03.1998 (Ex.A2) to the
defendant calling upon the defendant to divide the suit property into two
equal shares and to allot one such share to her. Though the said notice
was received by the first defendant, as is evidenced by the postal
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S.A.No.198 of 2010
and M.P.No.1 of 2010
acknowledgment card (Ex.A4), the defendant did not send any reply and
did not also come forward to partition the suit property. Hence, the suit.
5.The suit was resisted by the defendants 1 & 2 on the
following grounds :
i. The father-in-law of the first defendant Late.Dhamodara Mudaliar
executed a registered Will (Ex.A1) dated 20.10.1939
bequeathing the suit property in favour of his three sons. A sum of
Rs.200/- was directed to be paid to Indirani Ammal, daughter of
Late.Dhamodara Mudaliar by the beneficiaries of the Will.
However, though Indirani Ammal was offered a sum of Rs.200/-
she refused to receive the same. Therefore, question of paying the
said amount to the legal heirs of Indirani Ammal (plaintiff) would
not arise.
ii. A suit for partition was filed in O.S.No.5832/1976 before the VI
Assistant Judge, City Civil Court, Chennai, for partition of the
properties of Damodara Mudaliar by the three brothers and the suit
property was allotted to the share of Natesa Mudaliar, the husband
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S.A.No.198 of 2010
and M.P.No.1 of 2010
of the first defendant, who executed a settlement deed in favour of
his wife Andal Ammal (first defendant). In the settlement deed, it
is clearly intimated that Indirani Ammal refused to receive a sum of
Rs.200/- mentioned in the Will (Ex.A1).
iii. Since Indirani Ammal did not claim the amount during her life
time, the plaintiff cannot seek for partition of the suit property.
6.The trial Court on the basis of the above pleadings framed the
following issues :
i. Whether the plaintiff is entitled for a preliminary decree of partition
of one 1/2 share in the suit property ?
ii. To what other relief the plaintiff is entitled ?
7.In the trial Court, the plaintiff examined herself and marked
Ex.A1 to Ex.A4. One witness was examined on the side of the defendant
and Ex.B1 to Ex.B4 were marked.
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S.A.No.198 of 2010
and M.P.No.1 of 2010
8.The learned XII Assistant Judge, City Civil Court, Chennai,
after full contest, dismissed the suit filed by the plaintiff vide his decree
and judgment dated 31.01.2006, on the following grounds :
i. The plaintiff failed to prove that she is in possession of the suit
property and that her mother Indirani Ammal was a beneficiary to
the Will.
ii. In the settlement deed (EX.B1) dated 03.03.1973, it is clearly
mentioned that Indirani Ammal refused to receive Rs.200/- as
indicated in the Will (Ex.A1). The husband of the first defendant
(one of the beneficiaries of the Will) got his 1/3rd share in the
partition suit and took possession of the suit property in the
execution proceedings. Therefore, claim of the plaintiff by way of
the Will is not maintainable at this stage.
iii. Pending suit, the first defendant executed a sale deed in favour of
the second defendant and presently the second defendant is the
actual owner of the suit property.
iv. Therefore, the plaintiff cannot maintain the suit for partition. She
can only maintain a suit for declaration of her title to the suit
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S.A.No.198 of 2010
and M.P.No.1 of 2010
property and recovery of possession.
9.Aggrieved over the same, the plaintiff filed an appeal before
the V Additional City Civil Court, Chennai, in A.S. No.660 of 2007. The
learned V Additional Judge, after analysing the oral / documentary
evidence adduced on both sides upheld the findings recorded by the trial
Court.
10.Notice of motion was issued to the respondent and after
several adjournments, the case was posted today for hearing. Substantial
questions of law raised by the learned counsel for the appellant in the
grounds of appeal are as follows:
i. When the suit for partition is pending before the Court, any sale in
favour of the second defendant of the suit schedule property is null
and void as it is hit by lispendence.
ii. Though the registered Will was executed by late Damodara
Mudaliar dated 20th October 1939 in Document No.20/1939 in
favour of his three sons, whether the properties can be divided as
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S.A.No.198 of 2010
and M.P.No.1 of 2010
per Will when the Will was not probated ?
iii. Whether the trial court was justified in giving a finding that the
plaintiff is not entitled for a permanent injunction as prayed for by
her even without framing an issue ?
11. Heard Mr.S.N.Narasimhulu, learned counsel appearing for
the appellant and Mr.G.Thangavel, learned counsel appearing for the
respondent.
12. It is admitted fact that the suit property originally belonged
to one Dhamodara Mudaliar and he executed a registered Will. He had
three wives through whom he had three sons namely Natesa Mudaliar,
Vedachala Mudaliar and Vajravelu Mudaliar and one daughter Indirani
Ammal. He executed a registered Will (Ex.A1) dated 20.10.1939
bequeathing the suit property in favour of his three sons and he
specifically mentioned in the Will that his sons should take 1/3 rd share of
the suit property and that a sum of Rs.200/- should be paid to Indirani
Ammal. However, Indirani Ammal did not claim the said amount from
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S.A.No.198 of 2010
and M.P.No.1 of 2010
her brothers and as per the averments of the written statement, Indirani
Ammal refused to receive the same. Therefore, during the life time of
Indirani Ammal, she did not claim the said amount either from her
brothers or their legal heirs and thus abandoned the claim. The plaintiff is
the daughter in law of Indirani Ammal. The suit for partition was filed by
three brothers as is seen from Ex.B2 to Ex.B4 and the first defendant's
husband Natesa Mudaliar was alloted 1/3rd share in an execution
proceedings in O.S.No.5832/1976. Natesa Mudaliar executed a
settlement deed dated 03.03.1973 (Ex.B1) in favour of his wife Andal
Ammal (first defendant) in respect of the suit property. Further it is also
mentioned in the settlement deed about payment of Rs.200/- to Indirani
Ammal. Though she refused to receive the same from her brother, Natesa
Mudaliar had directed the settlee (first defendant) to pay a sum of
Rs.200/- to Indirani Ammal. This settlement deed was executed on
03.03.1973 and the present suit was filed in the year 1999. No evidence
was adduced by the plaintiff to show that Indirani Ammal claimed a sum
of Rs.200/- from the first defendant. It is also seen from the records that
the first defendant during her life time executed a sale deed in favour of
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S.A.No.198 of 2010
and M.P.No.1 of 2010
the second defendant in respect of the suit property and therefore both the
courts below were right in holding that the plaintiff cannot seek for a
partition of the suit property especially when her mother-in-law Indirani
Ammal abandoned her claim. The properties of Damodhara Mudaliar
were partitioned in a suit and the present suit property fell to the share of
the husband of the first defendant. Indirani Ammal did not claim any
right in respect of her father's properties during her life time even in the
partition suit filed by her brothers and also refused to receive a sum of
Rs.200/- from her brothers. Ex.B1 was executed nearly thirty years prior
to the filling of the present suit. In the circumstances, I hold that no
substantial question of law is involved in the present appeal. Therefore
second appeal fails and is dismissed.
13. In the result,
i. the second appeal is dismissed. No costs.
Consequently, the connected miscellaneous petition is
closed.
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S.A.No.198 of 2010
and M.P.No.1 of 2010
ii. the decree and judgment dated 20.04.2009 passed in
A.S. No.660 of 2007, on the file of the V Additional
City Civil Court, Chennai, and
iii. the decree and judgment dated 31.01.2006 passed in
O.S. No.3479 of 1999, on the file of the XII Assistant
City Civil Court, Chennai, are upheld.
21.03.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
https://www.mhc.tn.gov.in/judis
S.A.No.198 of 2010
and M.P.No.1 of 2010
R. HEMALATHA, J.
mtl
To
1.The V Additional City Civil Court, Chennai.
2.The XII Assistant City Civil Court, Chennai.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No .198 of 2010
and M.P.No.1 of 2010
21.03.2022
https://www.mhc.tn.gov.in/judis
