Madras High Court
Vanitha vs Pappammal on 3 January, 2023
S.A.No.1057 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1057 of 2022
and C.M.P.No.22702 of 2022
1. Vanitha
2. Gokulakrishnan .. Appellants
Vs.
1. Pappammal
2. Ranjitham
3. Mayavathi
4. Sumathi .. Respondents
Prayer:- Second Appeal filed under Section 100 of CPC to set aside the Decree
and Judgment of the first Appellate Court, passed in A.S.No.80 of 2017 dated
11.02.2019 on the file of Principal Sub Court, Cuddalore confirming the Decree
and Judgment passed in O.S.No.305 of 2013 on the file of Principal District
Munsif, Cuddalore dated 17.07.2017.
For Appellants : Mr.N.R.Rajagopalan
JUDGMENT
This second appeal has been filed as against the Decree and Judgment of
the first Appellate Court, passed in A.S.No.80 of 2017 dated 11.02.2019 on the
file of Principal Sub Court, Cuddalore, confirming the Decree and Judgment
passed in O.S.No.305 of 2013 on the file of Principal District Munsif, Cuddalore
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S.A.No.1057 of 2022
dated 17.07.2017, thereby decreed the suit.
2. The appellants are the defendants in the suit in O.S.No.305 of 2013 filed
by the respondents for partition. The case of the respondents is that the plaintiffs
and the defendants are legal heirs of the deceased Ramasamy, who died intestate.
The suit properties are ancestral properties of the deceased Ramasamy, who
inherited the same from his father. Therefore, they are entitled to have 1/5th share
each.
3. Resisting the same, the appellants filed their written statement stating
that the suit properties are self acquired properties of the said Ramasamy. Item
No.2 of the suit property was settled in favour of the second appellant herein by
the said Ramasamy out of love and affection. From the date of the settlement, the
second appellant is in possession and enjoyment of the Item No.2 of the suit
schedule property. Therefore, the said property cannot be subjected for any
partition, since it is the absolute property of the second appellant herein. Another
property was omitted by the respondents in the partition suit. Therefore, they
have not approached the Court with clean hands.
https://www.mhc.tn.gov.in/judis
S.A.No.1057 of 2022
4. On basis of the pleadings, the Trial Court framed issues as follows:-
“ a) Whether the suit properties are the ancestral
properties of the deceased Ramasamy?
b) Whether the settlement deed in favour of the 2nd
defendant with respect to the 2nd item of the suit properties is true,
valid, acted upon and binding upon the Plaintiffs?
c) Whether the Plaintiffs are entitled to 4/5 th share in
the suit properties?
d) To what other reliefs the plaintiffs entitled to?”
The Trial Court framed the Additional issues as follows:-
“a) Whether the suit is bad for partial partition?
b) Whether the property mentioned in the Additional
Written Statement was the property of plaintiff's husband?
c) PW1 was examined and Ex A1 to Ex A3 were marked on
the side of plaintiffs. DW1 was examined and Ex.B1 to Ex.B6 were
marked on the side of defendants.”
5. On the side of the respondents, they had examined P.W.1 and marked
Exs.A1 to 3. On the side of the appellants, they had examined D.W.1 and
marked Exs.B1 to 6. On a perusal of oral and documentary evidences, the Trial
Court decreed the suit and aggrieved by the same, the appellants preferred an
appeal suit in A.S.No.80 of 2017, on the file of the Principal Sub Court,
Cuddalore and the same was also dismissed, confirming the Judgment and
Decree passed by the Trial Court. Hence, this appeal.
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S.A.No.1057 of 2022
6. The appellants raised the following substantial questions of law,
“1. Whether the Courts below are justified in holding that
the suit properties are joint family property of Ramasamy after
partition between member?
2. Whether the Courts below are right in said properties
among the will become individual property of said Ramasamy
after partition?
3. Whether the respondents are not bound by Ex.B3
settlement document which is disputed or contradicted by the
respondents?
4. Whether the findings of the Courts below that the
plaintiff need not pray for cancellation of settlement Deed Ex.B3
as it being a void document is correct especially when the
document remained in challenged even after filing of written
statement about its existence?
5. Whether the Courts below are right in decree the suit
for partition when the plaintiff himself admitted that all the
properties are not included in the suit for partition?
6. Whether judgment and decree is liable to be set aside
since it is only partial partition and not all the properties are
included?”
7. The learned counsel for the appellants would submit that Exs.B3 to B6
revealed that the said Ramasamy sold out the properties as his self acquired
property. Therefore, the suit properties are not ancestral properties and cannot be
subjected for any partition. Item No.2 of the suit schedule property was already
settled in favour of the second appellant and as such it cannot be subjected for
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S.A.No.1057 of 2022
partition. He further submitted that the settlement deed was marked as Ex.B3 and
it was not contradicted by the respondents.
8. A perusal of the records revealed that admittedly the appellants and the
respondents are legal heirs of one Ramasamy. Item No.2 of the suit schedule
property, was settled in favour of the second appellant by Ex.B3. A perusal of
Ex.B3 revealed that the said Ramasamy categorically stated that the properties
are ancestral properties and he obtained the same by way of oral partition.
Therefore, the recitals of the settlement deed is very clear that the suit properties
are ancestral properties. In fact, all the revenue records stands in the name of the
said Ramasamy and he was shown as Kartha of his joint family. Therefore, the
said Ramasamy cannot execute any settlement deed in favour of any person
except on discharging any duties which includes the fulfillment of anti-nupital
requirements of family members. Therefore, the said Ramasamy had no right to
execute any settlement deed in favour of his grand son namely the second
appellant herein. Hence, it is an invalid document and as such there need not be
any relief sought for declaration declaring as null and void. Therefore, the both
the Courts below rightly decreed the suit for partition and allotted 4/5th share in
favour of the respondents herein and this Court finds no substantial questions of
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S.A.No.1057 of 2022
law involved in this case and the second appeal is liable to be dismissed.
9. Accordingly, this Second Appeal is dismissed. Consequently, connected
Miscellaneous petition is closed. No costs.
03.01.2023
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
https://www.mhc.tn.gov.in/judis
S.A.No.1057 of 2022
G.K.ILANTHIRAIYAN,J.
mn
To
1. The Principal Sub Court, Cuddalore.
2. The Principal District Munsif, Cuddalore.
S.A.No.1057 of 2022
and C.M.P.No.22702 of 2022
03.01.2023
https://www.mhc.tn.gov.in/judis
