Madras High Court
T.K.Loganathan vs T.K.Sekar on 1 December, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.839 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.839 of 2023
and
C.M.P.Nos.26779 and 26682 of 2023
T.K.Loganathan ... Appellant
Vs.
1. T.K.Sekar
2. Vijayalakshmi
3. Saraswathi
4. Onasis
5. Rajammal @ Rasamani
6. Angamuthu
7. Mahendran
8. Sarasu @ Saraswathi
9. Maliga
10. Nallasivam
11. Thayammal
12. The Bank of Baroda,
Represented by its Branch Manager,
Perundurai Branch,
Perundurai,
Erode District.
13. The Periyar District Central Co-Operative Bank Limited,
Represented by its Branch Manager,
Perundurai Branch,
Erode District. ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside the
judgment and decree dated 28.11.2022 made in A.S.No.44 of 2017 by the
1/17
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S.A.No.839 of 2023
learned Principal District Judge, Erode, confirming the judgment and decree
dated 09.03.2016 made in O.S.No.99 of 2009 by the learned Subordinate
Judge, Perundurai.
For appellant : Mr.N.Manoharan
For respondents
For R2 : Mr.M.V.Venkateseshan
For R1 and R3-13 : No appearance
JUDGMENT
The unsuccessful plaintiff before the Courts below has filed this
second appeal.
2. The facts necessary for deciding the appeal are set out
hereinbelow and the parties are referred to in the same litigative status
as before the Trial Court.
FACTS OF THE CASE:
2.1. The plaintiff had filed a suit in O.S.No.99 of 2009 on the
file of the Sub Court, Perundurai, for partition and separate possession
of her 1/8th share in the suit items 1 and 2 and half share of the suit
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items 3, 4, 5, 7 and 8 and 1/4th share in the 6th item of the suit
properties and for injunction restraining the defendants from
alienating and encumbering the suit properties including the share of
the plaintiff with specific boundaries till final partition is effected.
2.2. It is the case of the plaintiff that one Chinnasamy Nadar
had four children viz., Kaliappan - the first defendant herein, late
Chenniappan , late Ponnammal and Thayammal - the 12th defendant
herein. Kaliappan - the 1st defendant herein and his wife late
Chinnammal had three children viz., Loganathan - the plaintiff, Sekar
- the 2nd defendant and Vijayalakshmi – the 3rd defendant herein. The
second son had died intestate leaving behind him surviving his wife -
the 4th defendant and his son - the 5th defendant. The daughter
Ponnammal and her late husband Palani Nadar died intestate leaving
behind their children who had been arrayed as defendants 6, 9, 10 and
11 and one daughter Pavathal, who died intestate leaving behind her
surviving her husband - the 7th defendant and her son Mahendran - the
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8th defendant.
2.3. The plaintiff would contend that Chinnasamy Nadar was
the owner of the suit items 1 and 2 under two registered sale deeds
dated 28.11.1951 and 11.03.1953 respectively. Chinnammal who is
the plaintiff’s mother owned the suit items 3 and 4, which she had
purchased under various sale deeds. The 5th item of the suit properties
was allotted to the share of the 1st defendant – the father of the
plaintiff in the final decree proceedings in O.S.No.268 of 1994 on the
file of the Court of the I Additional District Munsif, Erode. This item
has been described as 'B' Schedule in that final decree. The 6 th item of
the suit properties was purchased jointly by the 1st defendant and his
brother late Chenniappan from and out of the funds of the ancestral
properties.
2.4. It is the case of the plaintiff that the 1stdefendant, who is
the karta of the family, had money deposits described as the 7th item of
the suit properties with the 13th defendant and the 8th item with the 14th
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defendant. The plaintiff would further contend that his mother
Chinnammal had executed an unregistered will dated 21.08.1992,
bequeathing the 3rd and 4th items of the suit properties on the plaintiff
and the 2nd defendant herein. She had died on 04.01.2006. Thereafter,
the 3rd defendant had executed a registered release deed dated
02.04.1996 and relinquished her right in the suit properties in favour
of the plaintiff and the defendants 1 and 2. Therefore, the plaintiff and
the 2nd defendant are entitled to 1/3rd share in the joint family
properties and entire properties have been enjoyed by all in common.
2.5. The 1st defendant had developed an illegal intimacy with
one Saraswathi and therefore, he orally relinquished his shares to the
plaintiff and the 2nd defendant herein. The 2nd defendant had
fraudulently obtained a registered settlement deed dated 22.09.2006 in
his favour from the 1st defendant for the entire properties. The plaintiff
would submit that the suit properties are undivided and he has a
common half share. The settlement deed in the name of the 2 nd
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defendant would not bind the plaintiff and the plaintiff has 1/8th share
in the 1st and 2nd items of the properties, half share in the 3rd and 5th
items, 1/4th share of the 6th item and half share in 7th and 8th items. The
defendants did not honour the demand of the plaintiff for partition and
the 2nd defendant is attempting to make alienation. Therefore, the
plaintiff has come forward with the suit for permanent injunction
against the defendants.
3. The 3rd defendant alone has contested the suit. The other
defendants remained ex parte in the suit.
3.1. It is the case of the 3rd defendant that the suit is neither
maintainable in law nor on facts. The 3rd defendant had admitted the
following facts.
(i) the relationship of the parties;
(ii) the 3rd and 4th items of the properties belong to
Chinnammal;
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(iii) the 5th item of the suit property is allotted to the 1st
defendant in the final decree in O.S.No.268 of 1994 and it is a
separate property of the 1st defendant.
3.2. The 3rd defendant would submit that it is false to allege
that out of the income from the ancestral properties, the 1st defendant
and his brother, late Chenniappan, have jointly purchased the 6th item.
It is the case of the 3rd defendant that the 6th item was purchased
jointly by her father and her brother Chenniappan from and out of
their own funds and the amounts shown in item 7 and 8 are separate
fund of the 1st defendant and since the 1st defendant had died intestate
on 17.04.2007, the 3rd defendant is entitled to 1/3th share in the suit
items 1, 2, 5, 6, 7 and 8 and since Chinnammal died intestate on
04.01.2006, the 3rd defendant being her daughter, is entitled to 1/3rd
share in 3rd and 4th items. The will dated 21.08.1992 executed by
Chinnammal is a forged and fabricated one. The release deed executed
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by the 3rd defendant would only operate against 1st and 2nd items being
ancestral properties. However, on the death of the 1st defendant , the
3rd defendant being her daughter, is entitled to 1/3rd share in the 1st and
2nd items of the suit properties.
3.3. The 3rd defendant denied the alleged illegal intimacy of the
1st defendant and that he had orally relinquished his shares in the suit
properties in favour of the plaintiff and the 2nd defendant. The 3rd
defendant would also submit that the suit has not been properly valued
and the Court Fee paid was also inadequate and therefore, she seeks to
declare and allot her shares in the suit properties.
TRIAL COURT:
4. The Trial Court has framed the following issues:
“(1)Whether the suit properties are ancestral and
joint family properties of the plaintiff?
(2)Whether the suit is hit by Doctrine of Res
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Judicata?
(3)Whether the court fee paid u/S 37(2) of TNCF is
correct?
(4)Whether the plaintiff is entitled for partition as
prayed for?
(5)Whether the plaintiff is entitled for a preliminary
decree for partition?
(6)Whether the plaintiff is entitled for a relief of
permanent injunction as prayed for?
(7)To what other relief is the plaintiff entitled?”
5. The plaintiff had examined himself as P.W.1 and marked
Exs.A1 and A6. On the side of the defendants, the 3rd defendant
examined herself as D.W.1 and no documents were marked.
6. The Trial Court has dismissed the suit with reference to
permanent injunction and has granted a preliminary decree for
partition declarating that the plaintiff and the 3rd defendant are
entitled to 1/12th share each in the items 1 and 2, 1/3 rd share each in
the items 3, 4, 7 and 8 and 1/6rd share in the items 5 and 6.
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7. Challenging the said judgment and decree, the plaintiff
had filed A.S.No.44 of 2019. He had also taken out an application in
I.A.No.8 of 2019 for receiving additional evidence viz., certified copy
of the registered will dated 31.10.1979 said to be executed by the late
Chinnammal.
8. The lower Appellate Court has framed about 12 points for
determination and ultimately, by judgment and decree dated
28.11.2022, has dismissed the appeal on the following terms.
“(a)that the appeal suit filed by the appellant/plaintiff
in A.S.No.44 of 2017 on the file of this Court is hereby
dismissed,
(b)that the decree and judgment dated 09.03.2016 of
the trial Court in O.S.No.99 of 2009, except with respect to
5th item of the suit properties, is hereby confirmed and
modified,
(i)declaring that the appellant/plaintiff, the 1st
respondent/2 nd defendant and the 2nd respondent/3 rd
defendant shall have equal shares, namely, 1/3 rd each, in 5th
item of the suit properties,
(ii)allotting 1/3rd share each in 5th item of the suit
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properties to the appellant/plaintiff and the 2nd
respondent/3 rd defendant, and
(iii)declaring that the 3rd and 4th respondents/4 th
and 5th defendants shall have no shares in the 5th item of the
suit properties and
(d)that considering the relationship between the
parties, there shall be no order as to costs.”
9. Challenging the same, the plaintiff is before this Court.
10. The learned counsel appearing for the appellant would
submit that the Court below has committed a grave error in dismissing
the application in I.A.No.8 of 2019 and thereby, not taking on file the
will dated 31.10.1979 and that since the 3rd defendant who was the
only contesting defendant had admitted the release deed – Ex.A5,
wherein, she had relinquished her right in the family properties in
favour of the 1st and 2nd defendant and the plaintiff, she had no right in
the ancestral properties. He would also contend that the properties are
ancestral properties and therefore, the plaintiff along with the
defendants 1 and 2 are entitled to 1/3 rd share in the joint family
properties.
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11. Heard the learned counsel appearing on either side and
perused the materials available on record.
DISCUSSION:
12. The Courts below have relied upon the evidence of P.W.1
and have come to the conclusion that there was no ancestral joint
family nucleus. P.W.1, in his cross-examination, stated that the items
1 and 2 of the suit schedule properties have been purchased by his
grandfather and that prior to the purchase of these items of the
properties, there was no ancestral property available to Chinnasamy
Nadar. Once there is no evidence to show that there is an ancestral
nucleus which would have contributed to the purchase of the other
properties, then, the properties have to be necessarily held to be
individual property of Chinnasamy Nadar. Further, the items 3 and 4
are admittedly the properties of the plaintiff's grandmother
Chinnammal.
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13. The plaintiff, in his pleadings and evidence, has relied
upon the will dated 21.08.1992. This document which is unregistered
has been filed along with the plaint. However, the same has not been
marked.
14. In the lower Appellate Court, the plaintiff has taken out an
application in I.A.No.8 of 2019 to receive the registered will dated
31.10.1979. However, there is no reference about this will dated
31.10.1979 in the plaint. The plaintiff has filed I.A.No.8 of 2019 for
receiving the additional document to which a counter has also been
filed by the 3rd defendant. A perusal of the affidavit filed in support of
this application would indicate that nowhere has the plaintiff referred
to the will dated 21.08.1992 in her pleading. In the counter which has
been filed by the 3rd defendant, she has stated that in the suit, the
plaintiff had taken out an interlocutory application in I.A.No.562 of
2015 seeking leave of the Court to file a reply statement referring to
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this will dated 21.08.1992 and after a detailed enquiry, this
application was dismissed and the same has not been challenged. This
is now sought to be re-introduced in the form of additional evidence.
15. The lower Appellate Court has dismissed the said I.A.No.8
of 2019 along with the appeal suit. The fact that the plaintiff has put
forward two wills, one dated 31.10.1979, the subject matter of
I.A.No.8 of 2019 in A.S.No.15 of 2017 and another will dated
21.08.1992 which has been filed as document no.13 along with the
plaint and the pleadings have been raised with reference to this
document. Therefore, I see no reason to disagree with the judgment
and decree of the lower Appellate Court especially when the plaintiff
has put forward two wills. The Court has to take consideration only
the will dated 21.08.1992 which has been referred to in the pleading.
16. As regards the release deed pleaded by the plaintiff –
Ex.A5, the 3rd defendant would claim right to the properties on
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account of her being the legal representative of the 1st defendant. The
3rd defendant would admit that she has executed the release deed in
favour of her father, however on the death of her father, she is entitled
to his share and therefore, she is entitled to 1/9 th share in the items 1
and 2 of the suit properties and this submission has been taken into
account by the Courts below. Therefore, I see no reason to reconsider
the well-considered judgment and decree of the Courts below.
17. The lower Appellate Court has also taken note of the
submission and modified the judgment and decree, particularly, with
reference to item 5 of the suit schedule properties. The plaintiff has
neither made out any case for the interference of this Court nor has
made out any substantial question of law and the objection is purely
factual which has already been addressed by the Courts below.
Accordingly, this second appeal stands dismissed. Consequently,
the connected C.M.P. stands closed. No costs.
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01.12.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The Principal District Judge, Erode.
2.The Sub Judge, Perundurai.
3.The Section Officer,
V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
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01.12.2023
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