Madras High Court

Ananthi vs Vijaya on 15 June, 2023

                                                                                   S.A. No.498 of 2021 &
                                                                                  C.M.P. No.5886 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 15.06.2023

                                          CORAM: JUSTICE N.SESHASAYEE

                                     S.A. No.498 of 2021 and C.M.P. No.5886 of 2022


                1.Ananthi
                2.Archana
                3.Kavya                                                          ... Appellants

                                                           Vs.

                1.Vijaya
                2.Udhayakumar
                3.Senthamarai
                4.Chinnaraj
                5.Kandasamy                                                      ... Respondents


                PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                Code against the judgment and decree dated 05.03.2021 made in A.S. No.5 of
                2019 on the file of Additional District Judge, Dharmapuri, in reversing the
                judgment and decree dated 04.11.2016 made in O.S. No.79 of 2014 on the file
                of Subordinate Court, Harur.



                                   For Appellants     :    Mr.C.Prabakaran

                                   For Respondents :       Mr.C.Jagadish for R1 to R3
                                                           No Appearance for R4 and R5



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                                                                                       S.A. No.498 of 2021 &
                                                                                      C.M.P. No.5886 of 2022


                                                     JUDGMENT

The defendants 2 to 4 are the appellants herein. The suit in O.S. No.79 of 2015

inter alia was laid for (a) declaration that Ext.A1 - partition deed dated

27.02.2001 and Ext.A9 - sale deed 24.12.2007 which was executed on the

strength of Ext.A1 are void and consequently for partition of plaintiffs' 1/3rd

shares in the four items of the suit properties. The suit came to be dismissed by

the trial court but before the first appellate court in A.S. No.5 of 2019, preferred

by plaintiffs, there was a reversal in fortune, as the appeal came to be allowed.

2. The scope of this appeal fall within a narrow compass:

● There are four items of suit properties, all of which are agricultural lands,

with a combined total extent of 2.92 acres, situated at Chennampatty

Village, Harur Taluk. This property admittedly belonged to certain Puttali

alias Kulla Mara Gounder. Kulla Mara Gounder died (admittedly after

1956) whereupon the aforesaid properties devolved on his three sons

Marappan, Chinnaraj and Nallathambi. While so, on 23.08.1999,

Marappan died leaving behind him surviving his widow, the first plaintiff

and his two children, namely plaintiffs 2 and 3 herein.

● Couple of years after the demise of Marappan, to be precise on

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S.A. No.498 of 2021 & C.M.P. No.5886 of 2022

27.02.2001, widow of Marappan, Chinnaraj, the first defendant and

Nallathambi had entered into Ext.A1 - Partition Deed. In this partition,

the first plaintiff and the first defendant were given Rs.5,000/- each in

lieu of their share in the property. Subsequently, Nallathambi died. His

heirs are defendants 2 to 4.

3. It is in this backdrop, the suit was laid for partition and the core plea of the

plaintiffs are :

a) that the first plaintiff is illiterate and that she was duped to sign

Ext.A1; and

b) plaintiffs 2 and 3 were not parties to the partition, and inasmuch as

the properties have been inherited by Marappan, Chinnaraj and

Nallathambi from their father Kulla Mara Gounder, they assume the

character of ancestral property, and that plaintiffs 2 and 3 are entitled

to their independent share.

4. First defendant chose not to contest the suit. The defence taken by the second

defendant in his written statement (and the same adopted by defendants 3 and

4) are :

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a) that after the demise of Marappan, the first plaintiff moved to Vellore

seeking some employment for her. The first defendant Chinnaraj too

chose to live in Harur town. Since the properties are agricultural

properties in a village, it was agreed between the parties that

Nallathambi who chose to stay back in the village and carrying on

agricultural activity, be given the property. Accordingly Ext.A1 was

executed.

b) Since the execution of Ext.A1, valuable improvements were made to

the property. In particular, a well was dug at considerable cost. This

apart the property lack a pathway for accessing it, and hence the

defendants have purchased a piece of property under Ext.B9 to

provide access.

c) The suit is barred by limitation; and

d) At any rate, these defendants have prescribed title by adverse

possession.

5. The dispute went to trial and before the trial court on the side of plaintiffs,

the second plaintiff examined himself as PW1 and on the side of the

defendants, the second defendant had examined herself as DW1. Besides the

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defendants also examined two independent witnesses as DW2 and DW3. While

the plaintiffs have produced Exts.A1 to A9, the defendants have produced

Exts.B1 to B4. On appreciating the evidence before it, the trial court believed

Ext.A1 and consequently dismissed the suit.

6. Aggrieved by the same, the plaintiffs moved the first appellate court with an

Appeal Suit in A.S. No.51 of 2019. On appreciating the same set of evidence,

the first appellate court partly allowed the appeal and granted the plaintiffs 2

and 3, 4/27 share each in the suit properties. Its line of reasoning is that in

Ext.A1, partition deed dated 27.02.2001, there is no reference to plaintiffs 2 and

3, who were then minors and hence, Ext.A1 will not bind the plaintiffs. It

rejected the claim of the first plaintiff since she is a party to Ext.A9. This is now

under challenge in this second appeal.

7. The second appeal is admitted for considering the following substantial

question of law:

" Whether the suit O.S. No.79 of 2014 on the file of Subordinate Judge's Court, Harur presented on 18.08.2014 inter alia assailing a registered partition deed dated 27.02.2001 [Ext.A1] is time barred owing to Article 60 of the

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S.A. No.498 of 2021 & C.M.P. No.5886 of 2022

Limitation Act, 1963 and if the answer is in the affirmative whether the courts below ought to have considered the same (in a case of this nature where other prayers are dovetailed) in spite of the same not being set up as a defence owing to the language in which Section 3 of Limitation Act is couched?"

8. Heard the learned counsel for the appellants / defendants 2 to 4. His line of

argument is essentially routed in Ext.A1, partition deed, and contended that the

first appellate Court does not even refer to plaintiffs' share in the ancestral

property. And so far as the first plaintiff's share is concerned, the first appellate

Court has rightly denied her a share in the property as she was signatory to the

document.

9. So far as the substantial question of law is concerned, since plaintiffs 2 and 3

were not even referred to as parties to the document, there is no need for them

to challenge Ext.A1 partition deed. The substantial question of law is decided

against the appellants.

10. In conclusion, this Court does not find any merit in the appeal and hence

dismissed. In the final decree proceedings, the trial court is required to