Madras High Court
Aarayee vs Vijayalakshmi on 5 August, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.(MD)No.221 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.08.2024
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
A.S.(MD)No.221 of 2015 &
M.P(MD)No.2 of 2015
1.Aarayee
2.Porut Selvi
3.Srirangammal
4.Angammal ...Appellants
vs.
1.Vijayalakshmi
2.Ahalya
3.Karthik
4.Shalini alias Baby Shalini
5.Jayanthi
6.Mohana
7.Balamurugan ... Respondents
Prayer: Appeal Suit filed under Order 41 Rule 2 read with Section 96 of
the Civil Procedure Code against the Judgment and Decree of the First
Additional District Judge, Tiruchirapalli dated 24.07.2014 in O.S.No.56
of 2011 in dismissing suit filed by the appellants.
Page 1 of 8
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.221 of 2015
For Appellants : Mr.S.Ramakrishnan
for Mr.K.S.Vamsidhar
For Respondents : Mr.K.N.Govardhanan
JUDGMENT
(Judgment of the Court was delivered by P.VELMURUGAN, J.)
This Appeal Suit has been filed to set aside the Judgment and
Decree dated 24.07.2014 in O.S.No.56 of 2011 on the file of the First
Additional District Judge, Tiruchirapalli.
2. For the sake of convenience, the parties are referred to as per
their ranking in the suit.
3. The plaintiffs have filed a suit for partition and separate
possession. The suit came to be dismissed on the ground that the
plaintiffs have not produced oral or documentary evidence to prove their
case. Challenging the same, the plaintiffs have filed the present appeal.
4. The learned counsel appearing for the appellants / plaintiffs
would submit that the plaintiffs are the daughters of one Periyasamy
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through his first wife Thangammal. The father of the plaintiffs
purchased various properties from and out of the income derived from
the ancestral properties. However, the respondents claim right over the
properties through a Will executed by Periyasamy. Since the properties
are purchased from and out of the income from the ancestral properties,
Periyasamy, the father of the plaintiffs did not have absolute right over
the suit properties and hence, he cannot execute a Will. Even assuming
that such a Will was executed, that will not bind the plaintiffs' share. In
fact, the plaintiffs sent a notice to the defendants 1 to 4 prior to the filing
of the suit whereas the defendants 1 to 4 have admitted in the reply
notice that the properties were purchased by their father. Since the
defendants 1 to 4 themselves have admitted that their father executed a
Will and the properties were purchased by their father, the plaintiffs too
have a share in it. However, the trial Court without appreciating the
evident facts, had chosen to dismiss the suit.
5. Before the trial Court, the plaintiffs marked Exs.A1 to A3 and
examined the second plaintiff as PW1. No oral or documentary evidence
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was adduced on the side of the defendants.
6. The plaintiffs have filed the suit for partition claiming that they
are the daughters of one Peiryasamy through his first wife Thangammal,
who died in the year 1995. The first defendant Vijayalakshmi is the
second wife of Periyasamy. The defendants 2 to 4 are the children of
Periyasamy through his second wife. The defendants 5 to 7 are the
children of one Latha, who is a pre-deceased daughter of Periyasamy
through his first wife Thangammal. Though the first defendant is the
second wife of Periyasamy, she married Periyasamy when his first wife
was alive and hence, the marriage was void ab initio. However, the
defendants 2 to 4 are the legitimate children of Periyasamy. Hence, they
are entitled to share in their father's properties. The above facts are not
disputed.
7. A perusal of the records shows that the plaintiffs have marked
the genealogy / family tree as Ex.A1, the office copy of the notice sent by
them to the defendants 1 to 4 prior to the filing of suit as Ex.A2 and the
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reply notice sent by the defendants 1 to 4 to them as Ex.A3. Except
those three documents, the plaintiffs have not adduced any other
documents to prove their case. Though the plaintiffs claim 4/8th share
over the suit properties, they have not produced any evidence to prove
that the suit properties belong to their father and they were purchased
from and out of the income derived from their ancestral properties. Thus,
the plaintiffs failed to prove that the suit properties either belong to their
father or their ancestors.
8. It is settled proposition of law that the plaintiffs who come to the
Court have to prove their case on their own strength and they cannot take
advantage of the loopholes left by the defendants. Even though the
defendants did not enter the witness box to examine witness or mark any
documents on their side, the plaintiffs cannot take advantage of the same.
Since the plaintiffs have filed the suit for partition, it is for them to prove
that the suit properties belong to their father and he has got the properties
from and out of the income derived from the ancestral properties. In the
absence of the same, the plaintiffs are not entitled to the relief sought for.
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The trial Court has also made an absolute finding in this regard that the
plaintiffs have not proved their case that the suit properties are either
ancestral properties or purchased out of ancestral nucleus. In such
circumstances, this Court does not find any merits in this appeal and
therefore, the appeal is liable to be dismissed.
9. Accordingly, the appeal suit is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
(P.V., J.) (K.K.R.K., J.)
05.08.2024
NCC:Yes/No
Index:Yes/No
Speaking/Non-speaking order
mbi
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To
1.The I Additional District Judge, Tiruchirapalli
2.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN, J.
mbi
05.08.2024
https://www.mhc.tn.gov.in/judis
