K.Balakrishnan vs M.Vijayalakshmi
2023 Latest Caselaw 5175 Mad

                                                                                         A.S.No.272 of 2023


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 01.06.2023

                                                           CORAM

                                     THE HON'BLE MR. JUSTICE S.VAIDYANATHAN
                                                            AND
                                       THE HON'BLE MR.JUSTICE K.RAJASEKAR


                                                  Appeal Suit No.272 of 2023
                                                              and
                                         Civil Miscellaneous Petition No.10314 of 2023


                        K.Balakrishnan                               ... Appellant / Defendant

                                                            Versus

                        Mrs.Krishnaveni (Died)
                        1. M.Vijayalakshmi
                        2. A.Kalaiselvi                              ... Respondents/Plaintiffs



                        Prayer: The Appeal Suit filed under Section 96 read with Order 41 & 41-A
                        of the Code of Civil Procedure to set aside the Preliminary Decree and
                        Judgment, dated 30.11.2022 in O.S.No.201 of 2009 on the file of the
                        Additional District Judge, Kancheepuram at Chengalpet.



                                  For Appellant    : Mr.Nazaraullah
                                                     For Mr.D.Charles Muthushanthan


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https://www.mhc.tn.gov.in/judis
                                                                                          A.S.No.272 of 2023


                                                          JUDGMENT

[The Judgment of the Court was delivered by K.RAJESAKER,J.,]

This Appeal has been filed by the defendant, challenging the

Judgment and decree passed in O.S.No.201 of 2009, dated 30.11.2022 on

the file of the Additional District Judge, Kancheepuram at Chengalpet,

wherein the trial Court has passed Preliminary Decree for partition and

consequential injunction against the defendant.

2. The parties are referred to hereunder according to status and

ranking before the trial Court.

3. The appellant is the defendant and the respondents are the

plaintiffs. The suit was filed by the plaintiffs for the following reliefs:

(a) for passing preliminary decree to divide the suit schedule mentioned properties into three equal shares and allot two such shares to the plaintiffs by metes and bounds.

(b) for appointing an Advocate Commissioner to suggest the mode of division for passing of final decree.

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(c) for permanent injunction restraining the defendant, their men, servants, agents or any person claiming through him from in any manner altering the superstructure or dealing with Item II of suit schedule property.

(d) directing the defendants to pay the costs of the suit; and

(e) for granting such other further relief, deemed, fit, proper just and necessary in the circumstances of the case.

4. The case of the plaintiffs is that the first plaintiff is the wife,

the plaintiffs No.2 and 3 are daughters, and the defendant is the son of late

A.S.Kandasamy. The first item of the suit property originally belonged to

one Pachaiammal, the mother of A.S.Kandasamy and she bequeathed the

same in favour of his son as per registered Will dated 29.05.1992. After the

death of Pachaiammal, the said property was in possession and enjoyment

of A.S.Kandasamy. He has also purchased the second item of the suit

property and from his own funds he was in possession and enjoyment of the

same. During his life time, the defendant and his wife has not treated, the

plaintiffs No.1 and Mr.A.S.Kandasamy properly, neglected and forced

plaintiff No.1 out of Item No.2 of the suit property. A.S.Kandasamy died on

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12.01.2009, leaving behind the plaintiffs and the defendant as his legal

heirs.

5. After the death of A.S.Kandasamy, the defendant, along with

his wife, have removed several valuable documents and jewels purchased

by A.S.Kandasamy and refused to handover the same to the plaintiffs.

Hence, the plaintiffs have issued legal notice dated 07.04.2009, to return

back the stolen articles and also for partition of the suit properties, for

which, the defendant has issued reply notice and refused for partition.

Hence, the plaintiffs have come forward to file the suit by including the

movable properties as item No.3 and claimed allotment of each 1/3 share.

6. The case of the defendant is that he admits the averments

with regard to the title of the first and second item of the suit properties and

also the relationship between the parties. The defendant was always been

ready to take care of his mother, the first plaintiff herein, but due to

intervention of the second and third plaintiffs, the dispute among the family

has reached beyond the point of no return. He has denied that he has taken

away the valuables and documents from the house of the plaintiffs and

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alleged that the first and third plaintiffs have taken away the valuables and

documents of his father. He has also alleged that during the month of

August 2009, the plaintiffs have attempted to sell the “Gun” belonging to

the defendant's father which was already deposited by the defendant on

09.02.2009 in the Hindustan Armory, Chennai and one another Air Rifle

was taken away by the third plaintiff and the same is in her custody. The

plaintiffs have also withdrawn a sum of Rs.3,42,000/- after the death of the

defendant's father, which was lying as Fixed Deposit in the Bank a account

of his father. On 30.10.2009, the plaintiffs have attempted to attack the

defendant and a police complaint has also been lodged in this regard. For

the reasons stated above, the defendant prays to dismiss the suit.

7. During the pendency of the suit, the first plaintiff had died

and the plaint was amended, and shares of the each parties were enlarged

from 1/4 to 1/3 each shares.

8. Based on the pleadings, the following issues have been

framed by the trial Court.

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(1) Whether the plaintiffs are entitled to 2/3 shares in the suit

properties? and

(2) To what other reliefs are the plaintiffs entitled to?

9. Before the trial Court, the third plaintiff has been examined

as P.W.1 and through her, Exs.A1 to A20 were marked. The defendant was

examined as D.W.1 and Exs.D1 to D8 were marked.

10. After full trial, the trial Court has decreed the suit in favour

of the plaintiffs for partition of Item Nos.1 and 2 properties into three equal

shares and allotment of two shares in favour of the plaintiffs. As far as the

third item is concerned, the trial Court has dismissed the suit on the ground

that there is no evidence produced by both sides to substantiate their case

that properties were taken away by their adversaries.

11. Aggrieved by the decree, the defendant has filed this

appeal, on the ground that the trial Court has decreed, for partition of Item

Nos.1and 2 of the suit properties without any evidence and the trial Court

has failed to consider the withdrawal of the Fixed Deposit of an amount of

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Rs.2,40,000/- by the plaintiffs from the Savings Bank Account along with

Rs.80,430/- of accrued pension, in which, the defendant is entitled for his

share. Hence prays to set aside the decree of the trial Court.

12. Before the trial Court, the plaintiffs have marked the

certified copy of the Will executed by Pachaiammal in favour of

A.S.Kandasamy dated 29.05.1992 as Ex.A1. It is the admitted case of the

defendant that both Item Nos.1 and 2 of the suit property belong to his

father. He has not disputed the fact that the first item of property is

bequeathed in favour of A.S.Kandasamy by his mother and II Item of the

suit property is self acquired property of his father. Till his demise,

A.S.Kandasamy was in possession and enjoyment of both Item Nos.1 and 2

of the suit properties.

13. The trial Court has considered the admission made by the

defendant in his written statement and incorporated the pleadings regarding

admission in the impugned judgment and has rightly come to the conclusion

that each of the plaintiffs 2 and 3 (after demise of the plaintiff No.1) are

entitled to 1/3 share in the suit properties.

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14. After admitting the case of the plaintiffs with regard to title

to Item Nos.1 and 2 of the suit properties, the objection raised by the

defendant for partition is that the plaintiffs have withdrawn money kept in

the Bank Account of his father, hence, he objected for partition of the suit

properties. Nowhere, he disputed the title. Hence, the objection with regard

to the partition is not sustainable and the defendant is estopped from raising

a dispute regarding title to Item Nos.1 and 2 of the suit properties by filing

this appeal.

15. It is also contended by the learned counsel for the

appellant that in the 3rd Item of the suit property which are movables and

Bank balance, he is also having a share and hence the defendant shall be

allotted 1/3 share in the above properties. Whereas, the plaintiffs contends

that the defendant has taken away gold jewels and documents. But they

have not listed as to what are the documents taken away by the defendant.

Similarly, they have not adduced any evidence to show that those movables

are available for partition.

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16. The defendant in his pleadings as well as in his evidence,

has stated that the third plaintiff had taken away the Air Rifle that belongs

to his father. One another “Gun”, which has been deposited with the

Hindustan Armory, Chennai, had been attempted to be sold by the plaintiffs.

He has also stated that, around Rs.2,40,000/- have been withdrawn from the

Fixed Deposit of his father. But no proof of such withdrawal of Fixed

Deposit or to substantiate his claim about the attempt of sale of Gun by the

plaintiffs.

17. Similarly, the defendant herein has not made any claim or

share in Item No.3 of the suit property and without claiming any share in the

above properties, now, he claims that he is having a share in the suit

properties. No evidence about the existence of the above items, had been

produced by the defendant before the trial Court and he has not given the

list of other properties which are to be subjected for partition and has not

sought for partition. He has only sought for dismissal of the suit, and now

making new case with regard to the Item No.3 of the suit properties which is

not permissible. Hence, the defendant is not entitled to any share of Item

No.3 of the suit properties by filing this appeal, which is the prayer made

against his own pleadings before the trial Court.

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18. The trial Court has also considered the evidence adduced

by both the plaintiffs and the defendant with regard to Item No.3 of the suit

properties and has held that the facts pleaded by them have not been proved

through acceptable evidence and hence, they are not entitled for any share in

Item No.3 of the suit properties.

19. In the result, the Appeal Suit stands dismissed without

ordering notice to the respondents. The Judgment and Decree passed in

O.S.No.201 of 2009, on the file of the Additional District Judge,

Kancheepuram, Chengalpet, dated 30.11.2022 is hereby confirmed. No

costs. Consequently, the connected miscellaneous petition is closed.

(S.V.N.,J.) (K.R.S,J.) 01.06.2023

Index : Yes/No Speaking Order : Yes/No Neutral Citation Case : Yes/No ssi

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To:

1. The Additional District Judge, Kancheepuram, Chengalpet.

2. The Section Officer, V.R.Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis A.S.No.272 of 2023

S.VAIDYANATHAN and K.RAJASEKAR

ssi

A.S.No.272 of 2023

01.06.2023

https://www.mhc.tn.gov.in/judis