Madras High Court
Murugaiyan vs Sundarammal on 26 October, 2022
Appeal Suit No.494 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Appeal Suit No.494 of 2016
Murugaiyan ... Appellant
Versus
1.Sundarammal
2.Sivakumar ... Respondents
Appeal Suit is filed under Section 96 read with Order XLI Rule 1 of
the Code of Civil Procedure, against the Judgment and Decree dated
18.02.2016 passed in O.S.No.57 of 2011, on the file of the learned IV-
Additional District Judge, Coimbatore, in so far as it relates to Item Nos.
'A' to 'C' of the suit schedule properties is concerned.
For Appellant : Mr.K.Govi Ganesan
For Respondents : Mr.N.Surya Senthil,
for M/s. Surana & Surana
JUDGMENT
This Appeal Suit is filed against the judgment and decree of the
learned IV Additional District Judge, Coimbatore, dated 18.02.2016 in
O.S.No.57 of 2011, in and by which, the suit filed for partition of four
items of the suit schedule property was partly dismissed in respect of item
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Appeal Suit No.494 of 2016
Nos.2 & 3, while decreeing the suit, granting ½ share of item Nos.1 & 4 of
the suit properties. The aggrieved plaintiff has come up with the present
Appeal Suit.
2.The case of the plaintiff is that the suit properties are joint family
properties, originally, belonging to One Onnappa Gowder and his four
sons. The four sons divided the properties as per the said partition deed
dated 29.06.1949. As per the said partition deed the first item of the
property which was mentioned in the suit schedule along with a house
property was allotted to Ramaiya Gowder. The said Ramaiya Gowder is
the father of the plaintiff and the first defendant. Thereafter, the said
Ramaiya Gowder and his son, namely, the plaintiff, had jointly sold the
house property under a registered sale deed, dated 06.06.1985. The first
item of the property is fertile land and out of the income of the suit
schedule property, item No.1 of the property, and item No.2 was
purchased. The item No.3 of the suit schedule property was a Nattham
Poramboke land occupied by the said Ramaiya Gowder. Item No.4 of the
suit property was purchased by One Mathakkal, the mother of the plaintiff
and the first defendant by way of a sale deed, dated 26.08.1956. The said
Mathakkal, died on 17.10.1997.
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Appeal Suit No.494 of 2016
3.It is the further case of the plaintiff that the plaintiff came to
understand that the said Ramaiya Gowder, executed two settlement deeds,
dated 25.11.1999, one in favour of the 1st defendant with respect to item
No.2 of the property and another one, in favour of the 2nd defendant, with
respect to item No.3 of the suit property. Immediately thereof, the plaintiff
issued a notice on 04.09.2000, calling upon the defendants to cancel the
said documents. To the said notice the defendants sent a reply notice on
29.05.2000. It is further stated that subsequently, the plaintiff came to
know that the settlement deeds were not true and were not executed by
Ramaiya Gowder. Therefore, the settlement deeds are invalid. Hence the
suit was filed claiming 3/4th share in items Nos.1 to 3 of the suit properties
and one-half share in item No.4 of the suit properties.
4.The suit was resisted by the defendants by filing a written
statement. According to the defendants, the agricultural lands in
S.Nos.347/1 & 358/1, in all ad-measuring a total extent of 5.32 acres
originally belong to one Sivanakkal, the grand mother of the plaintiff. She
had purchased the same by a sale deed, dated 21.01.1916. Similarly, the
agricultural lands situated in S.No.347/1A, and 358/1A were jointly
purchased by the four brothers by a sale deed, dated 01.04.1939. The
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Appeal Suit No.494 of 2016
properties are self-acquired properties of Ramaiya Gowder. Since the
female members were involved, the properties cannot be treated as joint
family properties. Thus, item No.1 is not a joint family property, and the
contention that the other items are also joint family property cannot be
countenanced.
5.As far as, item Nos.2 and 3 are concerned, since they are self-
acquired properties of Ramaiya Gowder. By virtue of two separate
settlement deeds, executed by him on 25.11.1999 in favour of the
defendants Nos.1 & 2, the defendants Nos.1 & 2 have become the absolute
owners of those properties and hence, it is not available for partition. Even
the first defendant had also mortgaged on 31.03.2003 to M/s. The
Karamadai Co-operative Primary Agricultural and Rural Development
Bank Ltd.
6.On the basis of the said pleadings, the Trial Court framed three
issues which are hereunder:-
“ 1. Whether the Plaintiff is entitled for partition
as prayed for ?
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Appeal Suit No.494 of 2016
2. Whether the settlement deeds are true and
genuine and binding on the Plaintiff ?
3. To what other relief ?”
7.On the above issues, the plaintiff examined himself as P.W.1 and
Exs.A-1 to A-13 were marked. One Marannan was examined as D.W.1
and the second defendant/Sivakumar was examined as D.W.2 and One
R.Malathi was examined as D.W.3 and Exs.B-1 to B-18 were marked.
This apart, the Report of the Tamil Nadu Finger Print Bureau with
photocopies of the Finger prints, was summoned and marked as Ex.X-1.
8.Thereafter, the Trial Court proceeded to consider the case of the
parties and by a Judgment, dated 18.02.2016, the Trial Court found that the
plaintiff failed to prove that suit properties are ancestral properties and that
the properties were purchased out of the joint family nucleus and as such
are self acquired properties. Being self-acquired properties, when the
plaintiff's father himself had dealt with the items Nos.2 & 3 of the suit
schedule properties by way of two separate settlement deeds dated
25.11.1999 to the knowledge of the plaintiff and came to the conclusion
that the items Nos.2 & 3 of the properties are not available for partition. In
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Appeal Suit No.494 of 2016
respect of items Nos.1 and 4 of the suit properties, having held that the
same is available for partition, the Trial Court passed a preliminary decree
for half share for the plaintiff and half share to the first defendant.
Aggrieved by the same, the present Appeal Suit is filed before this Court.
9.Heard Mr.K.Govi Ganesan, learned Counsel appearing for the
Appellant/plaintiff and Mr.N.Surya Senthil, learned Counsel appearing for
the Respondents/defendants.
10.The learned Counsel for the plaintiff would submit that in this
case, in any event, the settlement deeds are disputed and have not been
acted upon. When the plaintiff has specifically disputed the settlement
deeds and has disputed that the plaintiff's father had even executed the
same, the defendants have not properly proved the settlement deeds.
Therefore, the Trial Court ought to have decreed the suit in respect of all
the four suit properties.
11.Per contra, the learned Counsel for the defendants would submit
that, the settlement deeds were validly executed and as a matter of fact, it
has been duly acted upon. The first defendant had also mortgaged the
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Appeal Suit No.494 of 2016
property given to her. The defendants Nos.1 & 2 were enjoying the
property as it was their exclusive property to the knowledge of the
plaintiff. The defendants have produced the Patta Passbook and the
Property Tax receipts and the EB Service Connection cards etc., to show
their exclusive possession. Therefore, the plaintiff having been silent
about the same for a period of about 12 years from the date of execution of
settlement deeds, and also considering that the settlement was not being
questioned by way of separate relief prayed for in the suit, the Trial Court
has rightly dismissed the suit with respect to item Nos.2 & 3 of the suit
properties.
12.I have considered the rival submissions made on behalf of either
side and perused the material records of the case.
13.As far as the decree granted in respect of item Nos.1 & 4 of the
suit properties, the same has been accepted by the defendants. The only
question which is to be decided in this Appeal Suit is the grievance of the
plaintiff/appellant that the Trial Court ought to have decreed the suit in
respect of item Nos.2 & 3 of the suit properties also. In this regard, even
though the plaintiff has disputed the execution, even the fingerprint record
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Appeal Suit No.494 of 2016
that was made by the father during execution of the said settlement has
been summoned and marked as Ex.X-1 and the attesting witness of the
settlement deed was examined D.W.3. Thus, on a perusal of the evidence
on record, the settlement deeds are proved in accordance with law and the
plaintiff has not done anything to further dislodge due execution of the
settlement deeds. Therefore, I hold that the settlement deeds have been
duly proved by the defendants. This apart, the first defendant had even
further mortgaged the property and the parties have further acted upon and
even the revenue records stood mutated. In that view of the matter, the
plaintiff had been silent and keeping quiet even after coming to know of
the said settlement deeds, filing a suit only in the year 2011 is hopelessly
barred by limitation. The Trial Court has rightly found that the suit
properties are the self-acquired properties. The Appeal Suit is bound to
fail as without any merits. Accordingly, I find that the findings of the Trial
Court in respect of all the issues as correct, I answer the issue Nos.1 to 3
accordingly.
14.In the result,
(i) The Appeal Suit in A.S.No.494 of 2016 is dismissed;
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Appeal Suit No.494 of 2016
(ii) Since the preliminary decree is passed in respect of items Nos.1
& 4 of the suit schedule property, in view of the Judgment of Hon'ble
Supreme Court of India in Kattukandi Edathil Krishnan v. Kattukandi
Edathil Valsan15, as per the Judgment of the Hon'ble Supreme Court of
India, the Trial Court shall continue the proceedings without awaiting
application for the final decree from the parties and therefore, post this
matter for hearing before the Trial Court for Final Decree proceedings in
respect of item Nos.1 & 4, on 23.11.2022;
(iii) It is made clear that the parties shall appear before the Trial
Court without any further notice, and the matter will be taken up for final
decree proceedings;
(iv) There shall be no orders as to costs.
26.10.2022
Index : yes/no
Speaking/Non-speaking order
klt
To
1.The IV-Additional District Judge, Coimbatore.
2.The Section Officer, V.R. Section, High Court of Madras.
15 2022 SCC OnLine SC 737
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Appeal Suit No.494 of 2016
D.BHARATHA CHAKRAVARTHY, J.
klt
A.S.No.494 of 2016
26.10.2022
https://www.mhc.tn.gov.in/judis
