Madras High Court

Ramayammal (Died) vs Ramayee on 17 October, 2024

Author: V.Bhavani Subbaroyan

Bench: V.Bhavani Subbaroyan

                                                                             S.A(MD)No.987 of 2005


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED :     17.10.2024

                                                     CORAM

                         THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                           S.A(MD)No.987 of 2005

                    1.Ramayammal (died)
                    2.Vellaiammal (died)
                    3.Palaniammal
                    4.Muthulakshmi                ... Appellants 1 to 4/Appellants/
                                                        Defendants 1, 2, 4 & 5

                    5.Selvi                       ... 5th Appellant/
                                                          Lr of the deceased 2nd Appellant

                       (1st Appellant died and the 3rd appellant, who is already
                           on record, is recorded as Lr of the deceased 1st appellant
                           vide order dated 19.09.2024 made in C.M.P(MD)No.12850/2024)

                       (5th appellant is brought on record as Lr of the deceased
                          2nd appellant vide order dated 19.09.2024 made in
                          C.M.P(MD)No.12850 of 2024)


                                                  Vs.

                    Ramayee                       ... Respondent/Respondent/Plaintiff


                    Prayer: Second Appeal filed under Section 100 of the Code of Civil
                    Procedure against the judgment and decree, dated 25.11.2004 passed
                    in A.S.No.143 of 2002, on the file of the Additional District and
                    Sessions Court (Fast Track Court) Dindigul, confirming the judgment
                    and decree dated 06.03.2002 passed in O.S.No.86 of 1992 on the file
                    of the Additional Sub Court, Dindigul.



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                                                                              S.A(MD)No.987 of 2005


                                  For Appellants 3 to 5   : Mr.G.Gomathi Sankar

                                  For Respondent          : Mr.Ramesh @ Ramiah


                                                    JUDGMENT

The concurrent Judgments and decrees passed in O.S.No.

86 of 1992 on the file of the Additional Sub Court, Dindigul and in

A.S.No.143 of 2002, on the file of the Additional District and Sessions

Court (Fast Track Court) Dindigul, are being challenged in the present

Second Appeal.

2.The respondent as plaintiff, instituted a suit in O.S.No.86

of 1992, on the file of the trial Court as against the defendants 1 to 3

seeking for the relief of partition of 5/8 share.

3.Pending the Second Appeal, the first appellant died and

the third appellant, who is already on record, is recorded as the legal

representative of the deceased first appellant and the second appellant

also died. Hence, the fifth respondent herein is brought on record as

the legal representative of the deceased second appellant.

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4.For the sake of convenience, the parties are referred to

as, as described before the trial Court.

5.According to the plaintiff, the suit properties are the

ancestral properties which belonged to one Muthu Konar, who was the

father-in-law of the plaintiff, the father of the defendants 1 and 2 and

the husband of the third defendant. The said Muthu Konar died 30

years back and he left behind the plaintiff's husband Nallu Konar and

the defendants 1 to 3 as his legal heirs. The marriage between the

plaintiff and Nallu Konar took place at Alagar Koil at Thadikombu

Village and through the wedlock, a son by name Sankar was born to

them. The said Nallu Konar was managing the suit properties as a

family manager and he died 6 years ago. After the death of the said

Nallu Konar, the plaintiff, her son and the defendants 1 to 3 were in

joint possession and enjoyment of the suit properties and he died in

the year 1987. Thereafter, the plaintiff and the defendants 1 to 3 were

in joint possession and enjoyment of the suit properties and shared the

income between themselves. In the meantime, the defendants 1 to 3,

on the advice of some miscreants, refused to share the income due to

the plaintiff on and from the year 1991. As the defendants 1 to 3

persisted in sharing the income to the plaintiff, she issued a legal

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notice to the defendants 1 to 3 on 08.11.1991. The defendants 1 and 2

received the abovesaid legal notice but did not choose to send any

reply. During the pendency of the suit, the third defendant-Pappammal

died and the defendants 1 and 2, who are the daughters, are brought

on record as Legal representatives of the deceased third respondent.

On the death of the third defendant, her 1/3rd share would devolve

upon her daughters equally. During the pendency of the suit, the

defendants 4 and 5 claimed that the deceased third defendant-

Pappammal had executed a registered will in their favour and they

contended that the share of the said Pappammal would only devolve

upon them and they were added as the defendants 4 and 5 in the suit.

Hence, the plaintiff has filed the suit for the abovestated relief.

6.The defendants 1 & 2 had filed a written statement

stating that the suit properties are the ancestral properties which

belonged to Muthu Konar. Muthu Konar had another son by name

Gurusamy and the said Muthu Konar died leaving behind the said

Gurusamy also as one of his heirs, apart from the other son Nallu

Konar and the defendants 1 & 2, who are his daughters and the third

defendant, who is his wife. Even during the lifetime of the said Muthu

Konar, he had 1/3rd share in the ancestral properties and the other

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2/3rd share belonged to his sons Nallu Konar and Gurusamy and each

had 1/3rd share. The said Gurusamy died some 12 years ago and he

left behind his mother, the third defendant as his only heir. Hence, on

the death of the said Gurusamy, the defendants 1 and 2 had 1/15

share each, the third defendant had 10/15 share and the plaintiff had

3/15 share in the suit properties and the claim of 5/8 share for the

plaintiff is not correct. At the time when the plaintiff's husband was

afflicted with Tuberculosis, he was treated at Senjipatti and for that

treatment and for family expenses, an amount of Rs.30,000/- was

spent and that amount of Rs.30,000/- was obtained as a loan. Even

during the lifetime of the plaintiff's husband, the first defendant was

managing the suit properties. Hence, a Panchayat was convened

relating to the family debts and the division of the properties and a

family arrangement was entered into between the parties. In the family

arrangement, the plaintiff stated that she did not want a share in the

suit properties but received an amount of Rs.10,000/- and a golden

chain weighing 5 sovereigns and asked the defendants to discharge the

family debts. The same was agreed to by all and the plaintiff was paid

the money and the golden chain and on receipt of the same, the

plaintiff has given up her share and got divided from the family. As the

defendants did not have ready cash to pay a sum of Rs.10,000/- to the

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plaintiff, the same was obtained in advance from Vadivelu and in

pursuance thereof, the suit properties were given on an oral lease to

the said Vadivelu on and from 07.08.1990 and as such, the said

Vadivelu was in possession of the suit properties as the lessee and to

confirm the above lease, a lease document was also entered into. The

said Vadivelu is a necessary party to the suit and the suit is bad for

non-joinder of necessary parties. After the said family arrangement,

the defendants only are in possession and enjoyment of the suit

properties and they have also effected improvements to the suit

properties. On receipt of the legal notice sent by the plaintiff, the

defendants through some elders asked why she had sent the notice

and for that, the plaintiff replied that it had been sent on the

compulsion of one Sundarraj and asked the defendants not to bother

about sending any reply as she was not proposing to take any action

on the basis of the said notice and believing her words, the defendants

did not send any reply. The plaintiff was not residing in the suit house

and she was not a co-owner relating to the suit properties and none of

the properties are in her possession. The plaintiff was not entitled to

any share and prayed for dismissal of the suit.

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7.The defendants 4 and 5 had filed a written statement and

admitted that the suit properties are the ancestral properties of Muthu

Konar, but is not correct to say that he expired leaving behind the

plaintiff's husband and the defendants 1 to 3 alone as heirs. In fact,

the said Muthu Konar died leaving behind his wife and the defendants 1

and 2, who are his daughters and two sons, namely Nallu Konar and

Gurusamy Konar. Hence, on the death of Muthu Konar, the defendants

1 to 3 are entitled to get 1/15 shares and the plaintiff's husband Nallu

Konar and other son Gurusamy are entitled to get 6/15 shares each.

The said Gurusamy died without any marriage and issueless and he left

behind his mother, the third defendant-Pappammal, as his only heir

and as such, the said Pappammal became entitled to a total share of

6/15 shares. On the death of the plaintiff's husband, his 6/15 share

devolved on the plaintiff as his wife and his mother, the third defendant

and as such, the third defendant is entitled to 10/15 shares and the

plaintiff is entitled to 3/15 shares. The third defendant on 24.01.1992

had executed a registered will in favour of the fourth defendant-

Palaniamml and her sister Muthulakshmi, the fifth defendant. The said

will, had come into effect and the defendants 4 and 5 have become

entitled jointly to 10/15 shares. The plaintiff was not entitled to any

share. For the treatment of Nallu Konar, the plaintiff borrowed huge

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sums of money. Since the plaintiff refused to bear the loans, a family

arrangement was made and in that family arrangement, the plaintiff

demanded a sum of Rs.10,000/- towards for giving up her share and

accordingly, that amount was given to her and she has also given up

her share in lieu of such payment and has left the village and prayed

for dismissal of the suit.

8.Before the trial Court, on the side of the plaintiff, she

himself was examined as P.W.1 and Exs.A1 to A4 were marked. On the

side of the defendants, the fourth defendant was examined as D.W.1

and Exs.B.1 & B.10 were marked.

9.On the basis of the rival pleadings made on either side,

the trial Court, after framing necessary issues and after evaluating both

the oral and documentary evidence, has granted a decree in favour of

the plaintiff holding that she will be entitled to get 5/15 shares and

other incidental reliefs.

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10.Aggrieved by the Judgment and decree passed by the

trial Court, the defendants 1, 2, 4 & 5 herein as appellants, had filed an

Appeal Suit in A.S.No.143 of 2002 on the file of the first Appellate

Court.

11.The first Appellate Court, after hearing both sides and

upon reappraising the evidence available on record, dismissed the

appeal suit and confirmed the judgment and decree of the trial Court.

12.Challenging the said concurrent judgments and decrees

passed by the Courts below, the present Second Appeal has been

preferred at the instance of the defendants 1, 2, 4 & 5 as the

appellants.

13.At the time of admitting the present second appeal, this

Court had framed the following substantial questions of law for

consideration:

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'(1) Whether the Courts below have erred in

decreeing the plaintiff's suit and title to 5/15 share merely

on the basis of an Advocate's notice and the birth extract

of one Shankar which was not properly proved?

(2) Whether the Courts below ought to have held

that the plaintiff was not entitled to 4/15 share of Sankar

claimed to be her son without any proper proof of his

birth and death of such a son?

(3) Whether in view of the family arrangement the

plaintiff had relinquished her claim for her share in the

suit property?'

14.The learned counsel appearing for the

appellants/defendants would submit that the courts below ought to

have held that the plaintiff was not entitled to claim 5/15 share in the

suit properties; the courts below have failed to see that the plaintiff

has not filed any documents of title to prove her case; the courts below

have failed to see that the mere filing of the notices sent by the

plaintiff will not prove the plaintiff's claim to a share in the suit

properties; the courts below have failed to see that the suit for

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declaration cannot be granted on the mere uncorroborated testimony

of P.W.1 and her lawyer's notice; the courts below ought to have

accepted the genealogy filed by the defendants and marked as Ex.B.1;

the courts below ought to have held that the plaintiff has not proved

that a son called Sankar was born to her and her husband Nallu Konar

and that 4/15 share of the deceased son Sankar came to the plaintiff;

the courts below have failed to see that Ex.A.4-the birth extract of one

Sankar filed by the plaintiff had not been properly proved; the courts

below have failed to see that while the plaintiff has filed Ex.A.4 to show

the birth of Sankar, no document has been filed by the plaintiff to

prove Sankar's death; the courts below ought to have held that the

plaintiff had accepted to give up her right to a share in the suit

property accepting Rs.10,000/- with no liability towards the family

debts as per the Panchayat and therefore, she was not entitled to claim

any share in the suit property; the courts below have erred in holding

that the plaintiff was entitled to 4/15 share of Sankar alleged to be a

son when there was no acceptable records to prove that a son called

Sankar was born to the plaintiff and he died as a child and the courts

below ought to have held that the plaintiff had already given up her

rights to the suit property under the family arrangement and prayed

for allowing the Second Appeal.

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15.The learned counsel appearing for the

respondent/plaintiff reiterated the averments made in the suit and the

appeal suit and prayed for the dismissal of the Second Appeal.

16.Heard the learned counsel appearing for the appellants

and the learned counsel appearing for the respondent and also perused

the records carefully.

17.According to the plaintiff, the suit properties are the