Madras High Court
D.Radhakrishnan vs Kamakshi on 2 June, 2023
A.S.No.243 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2023
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.243 of 2010
D.Radhakrishnan .. Appellant
Versus
Neelaveni Ammal (Deceased)
1. Kamakshi
2. Lakshmi
3. Pattammal
4. Govindaswamy
5. Navaneetham
6. Muthukumarasamy
7. Lakshmi
8. G.Rajendran
9. Hamsa
10. Kanchana
11. Selvi
12. G.Srinivasan
13. Rajammal .. Respondents
Cause title accepted vide order of Court, dated 28.04.2010
made in M.P.No.2 of 2010 in A.S.SR.No.95439 of 2006
Prayer : Appeal Suit filed under Order XLI Rule 1 of Civil Procedure Code
read with under Section 96 of Civil Procedure Code against the judgment
and decree, dated 30.06.2006 made in O.S.No.1526 of 1997 on the file of
the learned Additional District and Sessions Judge, Chennai (Fast Track
Court No.III, Chennai.
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A.S.No.243 of 2010
For Appellant : No Appearance
For Respondents : Mr.M.Krishnappan,
Senior Counel,
Assisted by M/s.R.Swarnalatha,
for RR-4 and 6
: No Appearance for R5
JUDGMENT
Claiming the suit properties to be the coparcenary properties of one
Duraisamy Naidu, Gopal Naidu and claiming himself to be the eldest son of
Duraisamy Naidu, the appellant / plaintiff filed the suit for partition
claiming 7/24th share in the schedule - B and C properties against the
respondents / defendants with the following genealogy tree:-
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A.S.No.243 of 2010
2. The suit was contested by the respondents / defendants by filing
different written statements. Inter alia, it was the contention of the
respondents / defendants that in respect of the schedule - B and C
properties, there were already two registered partition deeds namely,
partition deed, dated 07.11.1987 registered as Doc.No.1418 of 1987,
whereby, even during the life time of the said Duraisamy Naidu, the
properties were partitioned. Pursuant thereto, there was also a sale vide
Doc.No.1858, dated 03.11.1993 and Doc.No.519, dated 24.03.1993. This
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A.S.No.243 of 2010
apart, there was also a further partition on 07.11.1987 between the legal
heirs pursuant to the first partition deed.
3. The Trial Court framed totally five issues, inter alia, the first issue
is whether the appellant / plaintiff is entitled to claim 7/24th share in the
schedule - B and C properties. After appreciating the oral and documentary
evidence on record, the Trial Court found that the appellant / plaintiff, with
knowledge, had suppressed the earlier partition deeds as well as the sale
deeds and in view thereof, held that the appellant / plaintiff is not entitled
for any share in the schedule - B and C properties as claimed in the plaint
and dismissed the suit. Aggrieved by the same, the present appeal is laid
before this Court.
4. Before this Court, it is pleaded that the Court below should have
found that the schedule - B and C properties, as joint family properties, in
the name of the grand father of the appellant, the nucleus being the sale of
the ancestral properties at Thakkamedu. Once the properties are joint family
properties, it is liable for partition and the appellant / plaintiff is entitled to
the share. The Trial Court omitted to consider that in the earlier partition,
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A.S.No.243 of 2010
the properties stood in the name of Duraisamy and Neelaveni Ammal were
not included in the partition. Therefore, the Trial Court ought to have
decreed the suit.
5. Per contra, Mr.M.Krishnappan, the learned Senior Counsel
appearing on behalf of the respondents / defendants contended that the
findings of the Trial Court are based on the documentary evidence namely,
Exs.B-1 and B-2, partition deeds, both being registered documents, in
which the suit schedule property has been dealt with. As a matter of fact,
the categorical admission in the cross-examination that P.W.1 also signed
the partition on 07.11.1987 would clearly show that the suit was frivolous.
It is further contended that the present suit for partition is filed only because
a suit for permanent injunction is filed by the respondents / defendants in
respect of the properties allotted to them and the present suit for partition is
nothing but a counter blast.
6. I have considered the grounds of appeal and the contentions and
upon consideration thereof, the only point which arise for consideration in
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A.S.No.243 of 2010
this appeal is whether the appellant / plaintiff is entitled for 7/24th share in
the schedule - B and C properties as claimed by him ?
7. Even though detailed evidence has been let in in respect of the sale
of the properties in Thakkamedu village, in the teeth of Exs.B-1 and B-2
registered partition deeds even during the life time of the appellant's /
plaintiff's father, Duraisamy, in which the appellant / plaintiff has also
signed, it cannot be said that the properties are available for partition. The
very fact, that the respective allottees have dealt with their shares by even
selling some of the items of the properties to the other respondents /
defendants, would fortify that the properties were no longer available for
partition. In view thereof, when the Trial Court has adverted to the relevant
document and the oral evidence of P.W.5, and has found that in view of the
earlier partition as well as the sale deeds, the properties mentioned in
schedule - B and C properties will no longer be available for partition. No
exception whatsoever can be taken in respect of the said findings. The
respondents / defendants have proved their case by marking Exs.B-1 and B-
2. On the other hand, the appellant / plaintiff answered the cross-
examination that he signed in the partition documents only for the purpose
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A.S.No.243 of 2010
of sale of the property, which is evasive. In that view of the matter, the
Appeal Suit fails.
8. In the result, A.S.No.243 of 2010 is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
02.06.2023
Index : yes
Speaking order
Neutral Citation : yes
grs
To
The Additional District and Sessions Judge,
Fast Track Court No.III, Chennai.
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A.S.No.243 of 2010
D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.243 of 2010
02.06.2023
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