Madras High Court
Kumar vs Vedhavalli on 20 October, 2022
AS.No.1/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.10.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N.MALA
AS.No.1/2012
1.Kumar
2.Ammurani
3.Geetha
4.Panneerselvam
5.Indrani
6.Gokulakrishnan
7.Santhanakrishnan
8.Vijayalakshmi .. Appellants
Vs.
1.Vedhavalli
2.Meera
3.Usha
4.Parthasarathy
5.Shanthi
6.Santhanalakshmi
7.Krishnakumar
8.Vijayakumar
9.Harikrishnan
10.Amirthavalli
11.Ramakrishnan
https://www.mhc.tn.gov.in/judis 1
AS.No.1/2012
12.Karthikeyan .. Respondents
Prayer:- Appeal Suit filed under section 96 of the Code of Civil Procedure
against the judgment and decree dated 11.08.2011 made in
OS.NO.47/2006 on the file of the learned Additional District Judge [Fast
Track Court-II], Poonamallee.
For Appellants : Ms.K.Priyadharshini for
Mr.R.Subramanian
For R4 : Mr.M.V.Seshachari
For RR 7 to 12 : Mr.S.Ganesh
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) The plaintiffs in the suit in OS.No.47/2006 on the file of the
Additional District Court, Poonamallee, are the appellants in the
above appeal.
(2) The appellants filed the suit in OS.No.47/2006 for partition of 1/4th
share to plaintiffs 1 to 7 and another 1/4th share to the 8th plaintiff /
8th appellant herein by metes and bounds and for other
consequential reliefs. The suit is also for a declaration to declare
AS.No.1/2012
that the Partition Deed dated 11.05.1963 is invalid and void.
(3) The suit properties are descried in four items in the suit schedule.
The case of the plaintiffs before the Lower Court is that the suit
property is the ancestral properties of Thiru.Adikesava Pillai, father
of the 8th plaintiff / 8th appellant and grandfather of plaintiffs 1 to 7.
Plaintiffs 1 to 7 are the children of one of the daughters of
Adikesava Pillai, by name Sankari. Defendants 1 to 5 are the wife
and children of one of the deceased sons of Adikesava Pillai by
name Muthukrishnan. Defendants 6 to 12 are the wife and
children of another son of Adikesava Pillai by name
Kamalakannan. It is admitted that the said Adikesava Pillai died
long back and as per geneology, the properties of Adikesava Pillai
would devolve on his two sons and three daughters including the 8th
plaintiff/8th appellant.
(4) Even though one Pappammal, another daughter of Adikesava Pillai
died leaving behind her legal heirs, it is stated in the plaint that the
said Pappammal released all her right in the family properties and
settled elsewhere. Plaintiffs 1 to 7, being the legal heirs of one of
AS.No.1/2012
the daughters of Adikesava Pillai and the 8th plaintiff, being one of
the daughters of Adikesava Pillai, filed the suit.
(5) The suit was contested by defendants 6 and 8 to 12, the legal heirs
of Kamalakannan, one of the sons of Adikesava Pillai on various
grounds. It is the case of defendants 6 and 8 to 12 that the suit
properties along with the other properties of Adikesava Pillai were
the subject matter of a registered Partition Deed dated 16.05.1963
vide Doc.No.1064/1963 and that, in the said partition, Adikesava
Pillai and his two sons, namely, Muthukrishnan and
Kamalakannan, have divided among themselves all the properties
that were ancestral properties in the family and the self acquired
properties of Adikesava Pillai. It is also contended that two items
which were allotted to Adikesava Pillai, was sold even during the
life time of Adikesava Pillai.
(6) The Trial Court, after framing necessary issues, found that the suit
properties were divided during the life time of Adikesava Pillai and
that the said partition by a registered Partition Deed, which was
marked as Ex.B1, was proved. The Trial Court further found that
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the contents of Ex.B1 has been proved particularly by virtue of
Section 90 of the Indian Evidence Act. Even though a prayer was
sought for in the plaint to declare the said Partition Deed under
Ex.B1 as invalid, the Trial Court found that the relief to declare the
Partition Deed as null and void, cannot be sought for nearly after a
period of 42 years. Therefore, the declaratory relief to declare the
Partition Deed [Ex.B1] dated 16.05.1963 as invalid was rejected by
the Trial Court. The Trial Court also found that the suit is liable to
be dismissed for non-joinder of one of the daughters of Adikesava
Pillai by name Pappammal. Since the properties of Adikesava Pillai
were also included in the Partition Deed under Ex.B1 dated
16.05.1963, the Trial Court dismissed the suit for partition finding
that the plaintiffs have no right to seek partition in view of the
earlier registered Partition Deed.
(7) Though the appellants have raised several grounds, the learned
counsel for the appellants tried to convince this Court that the
appellants were not aware of the Partition Deed dated 16.05.1963
till the suit was filed and that some of the properties of Adikesava
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Pillai were not included in the prior Partition Deed. The learned
counsel for the appellants is unable to demonstrate before this
Court that the suit is filed within three years from the date of
knowledge of the Partition Deed. This Court is unable to find any
substance especially having regard to the findings of the Trial Court
on all issues.
(8) One of the submissions of the learned counsel for the appellants is
to the effect that the parties to the document [Ex.B1] have admitted
the existence of ancestral properties and that therefore, Adikesava
Pillai cannot effect partition with his sons excluding his daughters.
Though this submission appears to be appealing, the suit filed
nearly after 42 years from the date of partition without valid reason,
cannot be entertained.
(9) It is true that the 8th appellant and other two daughters of Adikesava
Pillai are not parties in the Partition Deed. The right of female heirs
to seek partition in the joint family is introduced for the first time
by way of 2005 amendment. The Hon'ble Supreme Court in the
case of Vineeta Sharma Vs. Rakesh Sharma reported in 2020 [9]
AS.No.1/2012
SCC 1 has upheld the right of female heirs to claim partition in the
joint family property irrespective of the death of the father either
before or after the commencement of the amendment. However, a
registered Partition Deed of the year 1963 is saved.
(10) Therefore, this Court is unable to find any merit in this appeal and
the Appeal Suit is liable to be dismissed.
(11) Accordingly, the Appeal suit is dismissed for devoid of any
merits. Considering the relationship between the parties, there
shall be no order as to cost.
[SSSRJ] [NMJ]
20.10.2022
AP
Internet : Yes
AS.No.1/2012
To
1.The Additional District Judge
[Fast Track Court-II], Poonamallee .
2.The Section Officer
VR Section, High Court.
Chennai.
AS.No.1/2012
S.S.SUNDAR, J.,
AND
N.MALA, J.,
AP
AS.No.1/2012
20.10.2022
https://www.mhc.tn.gov.in/judis 9
