Madras High Court
S.Duraisamy vs Rukmani on 11 January, 2023
S.A.No.443 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.443 of 2007
1.S.Duraisamy
2.Annammal
3.Thangamuthu Gounder (died)
4.Kolandasamy
5.Subramani
6.Loganathan
7.Ramasamy
8.Smt.Poongodi
... Appellants
Vs.
Rukmani
... Respondent
[4th appellant recorded as LR and 8th appellant brought on record as LRs
of the deceased 3rd appellant vide order of Court dated 24.06.2014 made
in M.P.No.1 of 2014 in S.A.No.443 of 2007.]
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the learned Principal District
Judge of Erode District at Erode in A.S.No.40/2006 dated 07.11.2006
confirming the Judgement and Decree of the learned I Additional
Subordinate Judge, Erode in O.S.No.64/2004 dated 07.10.2005.
1/11
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S.A.No.443 of 2007
For Appellants : M/s.Prithvi
for M/s. S.Kaithamalai Kumaran
For Respondent : M/s.P.T.Ramadevi
JUDGMENT
The defendants in a suit for partition are the appellants before this
Court. The facts are briefly set out herein below and the parties are referred
to in the same ranking as before the Trial Court.
2. The plaintiff had filed the suit OS.No.64 of 2004 on the file of the I
Additional Sub Judge, Erode for a partition and separate possession of her
1/12th share in the suit schedule property. The schedule of property
consisted of several pieces of land comprised in various sub-divisions in
Veppampalayam, Village Perundurai, Erode. It is the case of the plaintiff
that the properties are ancestral in nature and belonged to one Nallappa
Gounder. Nallappa Gounder had three sons, Chinnimalai Gounder,
Kumarasami Gounder and Sellappa Gounder. Chinnimalai had two children
Duraisamy, the 1st defendant and Annammal, the 2nd defendant. One
Deivanai Ammal was Kumarasami's wife and his two children are
Thangamuthu, the deceased 3rd defendant and the plaintiff, Rukmani. The
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S.A.No.443 of 2007
3rd son of Nallappa namely, Sellappa had a son, Subramanian, the 5 th
defendant herein and a deceased son Krishnasamy whose sons are the
defendants 6 and 7 respectively. The 4th defendant is the son of the 3rd
defendant. On the death of Nallappa Gounder the property devolved on his
three sons. They had enjoyed specific portions of the properties without a
permanent partition. The 2nd son of Nallappa Gounder, namely,
Kumarasamy died leaving behind him surviving the plaintiff and the 3 rd
defendant as his legal heirs. The 1st son, Chinnimalai had died leaving
behind him surviving defendants 1 and 2. Likewise, the 3rd son, Sellappa
Gounder had died leaving behind him surviving the 5 th defendant and
defendants 6 and 7 who are the legal heirs of his pre-deceased son
Krishnasamy.
3. The plaintiff would submit that each person has been enjoying their
respective shares according to convenience without their being a formal
partition. Since the plaintiff wanted to improve her property, she had sought
for a partition. Further, misunderstanding had cropped up between the
defendants 3 and 4 and the plaintiff with reference to the enjoyment of the
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S.A.No.443 of 2007
properties. The plaintiff had called upon the defendants 3 and 4 to partition
the property which was declined by them. The plaintiff therefore issued a
legal notice dated 06.12.2003 calling upon the defendants to partition the
suit property. However, since there was no response the plaintiff came
forward with this suit in question.
4. The 3rd defendant, the plaintiff’s brother had alone filed a written
statement inter alia contending that on 24.04.1977, Kumarasamy Gounder
had executed a Will bequeathing his properties in favour of the 3rd and the
4th defendant. Thereafter, he would submit, that there was a partition
between the defendants 3 and 4 on one side and defendants 1, 2, 4 and 7 on
the other side. He would also submit that the plaintiff had been given in
marriage in a grand manner and she had been given over and above what
she was entitled to as a dowry. Therefore, in the light of the Will the 3rd
defendant would seek to have the suit dismissed.
5. The I Additional Subordinate Judge, Erode had framed the
following issues which is translated from the vernacular reads as follows:-
"i. Whether the plaintiff is entitled to a preliminary
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S.A.No.443 of 2007
decree for partition as prayed for?
ii. Whether Kumarasamy Gounder, father of the 3rd
defendant and plaintiff dated 24.04.1977 executed a Will
bequeathing his properties in favour of the defendants 3
and 4?
iii. Whether there was a partition dated 11.04.1984
between the defendants and 'B' schedule of the partition
deed was allotted to defendants 3 and 4 as alleged in
their written statement ?
iv. To what relief ? "
Additional issue:-
" Whether it is true to say that the Will dated
24.04.1977 is not a true one and it is forged ?"
6. The plaintiff had examined 2 witnesses on her side and marked
Ex.A.1 to A.5. On the side of the defendants, three witnesses were examined
and Ex. B.1 to B2 were marked.
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S.A.No.443 of 2007
7. The learned I Additional Sub Judge, Erode by judgment and decree
dated 07.10.2005 was pleased to decree the suit as prayed for and
challenging the same the defendants had filed A.S.No.40 of 2006 on the file
of the Principal District Judge, Erode. The Principal District Judge has also
concurred with the judgment and decree of the Trial Court and dismissed the
appeal. Challenging the same the defendant has filed the above Second
Appeal.
8. The above Second Appeal in question has been admitted on the
following Substantial Questions of law:-
i) Are the Courts below justified in not accepting
the Will Ex.B.2 when there is no suspicious circumstances
surrounding the execution f the Will and especially when
it is proved by the attestators D.W.2 and D.W.3 ?
ii) Are not the judgments of Court below vitiated as
admittedly there was love lost between the plaintiff and
her father, the testator that they were not on visiting
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S.A.No.443 of 2007
terms, that plaintiff did not attend her father’s death the
Will Ex.B.2 is natural and there is no suspicious
circumstances in the due execution of the same?
9. The learned counsel appearing on behalf of the appellants/
defendants would submit her argument on three major grounds:-
a) Under a Will dated 24.04.1977, Ex.B.2, the property had been
bequeathed by Krishnasamy in favour of the 3rd defendant.
b) The defendants have examined D.W.2 and D.W.3 to prove the
same.
c) Further there was already a partition on 11.04.1984 and
therefore the property had lost its ancestral character.
10. She would further submit that the notice issued by the plaintiff
was only with reference to the B schedule property in the partition deed.
Though the defendant has pleaded ouster the learned counsel has just made
her submissions of the point as the strict ingredients of ouster has not been
set out in the pleadings. She would place her reliance on the Will, Ex.B.2 by
reason of which the plaintiff has lost her right to the property of her father.
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S.A.No.443 of 2007
11. Per contra, M/s.P.T.Ramadevi, learned counsel appearing on
behalf of the respondent/plaintiff would submit that both the Courts below
have come to the conclusion that the Will, Ex.B.2 has not been legally
proved since there was a lot of discrepancies and contradictions in the
evidence of the attesting witnesses. The defendants have not been able to
rebut the suspicious circumstances surrounding the execution of Ex.B.2,
Will. Further, the Will is said to be of the year 1977, whereas there is no
mention about the said Will in the subsequent partition deed. Once, the
defendants have failed to prove the Will then the plaintiff is entitled to the
decree as prayed for.
12. Heard the learned counsels on either side.
13. That Krishnasami has 1/3rd share in the property is not denied by
the defendants. The defendants would try to obstruct the intestate succession
by pleading a Will, Ex.B.2. The witnesses who have been examined to prove
the Will have contradicted each other and have not been able to prove that
they had witnessed the execution of the Will. The other point which gives
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S.A.No.443 of 2007
rise to suspicion about the Will is the fact that in the subsequent partition
deed which was entered into on 11.04.1984 between all the branches of the
three sons of Nallapa Gounder there is no reference to the Will. Therefore,
once the Will stands disproved the share of Kumarsamy has to necessarily
be partitioned between the 3rd defendant and the plaintiff and therefore the
plaintiff is entitled to a 1/12 th share in the suit properties as decreed by the
Courts below.
14. Both the Courts below have given cogent reasons for not
considering the Will, Ex.B.2. Therefore, the Substantial Question of law
No.1 is answered against the plaintiff. Likewise, there is no proof to show
any kind of a bad blood between the plaintiff and her father and therefore
the Substantial question of law No.2 is also answered against the plaintiff.
Consequently, the Second Appeal stands dismissed confirming the judgment
and decree of the Courts below. No costs.
11.01.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yest/No
shr
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S.A.No.443 of 2007
To
1.The Principal District Judge of Erode District.
2.The First Additional Subordinate Judge, Erode.
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S.A.No.443 of 2007
P.T. ASHA, J,
shr
S.A.No.443 of 2007
11.01.2023
https://www.mhc.tn.gov.in/judis
