Madras High Court

E. Sathishkumar vs Thulukkanam on 3 January, 2025

Author: R. Hemalatha

Bench: R.Hemalatha

                                                                             S.A.No.183 of 2018



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 03.01.2025

                                                    CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                             S.A.No.183 of 2018 and
                                             C.M.P. No.4495 of 2021

                     E. Sathishkumar,
                     S/o. Elumalai,
                     Residing at Nedimozhiyanur Village,
                     Tindivanam Taluk, Villupuram District.                      ...Appellant

                                                       Vs.

                     1. Thulukkanam, S/o. Govindharasu
                     2. Ramesh, S/o. Thulukkanam
                     3. Sellappan, S/o. Late Duraisamy Kounder
                     4. Ramanujam, S/. Late Duraisamy Kounder
                     5. Jeyalakshmi, W/o. Veerasamy Kounder.

                     All residing at Nedimozhiyanur Village,
                     Tindivanam Taluk, Villupuram District.                  ... Respondents

                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 12.10.2017 in A.S. No.40 of 2016, on the file
                     of the Additional Subordinate Court, Tindivanam, reversing the    decree
                     and judgment dated 15.07.2016 in O.S.No.326 of 2006, on the file of the
                     Additional District Munsif Court, Tindivanam.


                     Page 1 of 15

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                                                                                    S.A.No.183 of 2018



                                  For Appellant           : Mr.R. Agilesh
                                  For R2                  : Mrs. V. Srimathi
                                  R1, 3 to 5              : No appearance.

                                                      JUDGMENT

The appellant is the plaintiff in O.S. No.326/2006 on the file

of the Additional District Munsif Court, Tindivanam. He filed the said

suit for (i) declaration of his title to the suit properties, (ii) declaration

that the settlement deed dated 07.09.2006 is null and void and (iii) for a

permanent injunction restraining the defendants from interfering with his

peaceful possession and enjoyment of the suit properties. The suit

properties as described in the plaint are in survey numbers 262/1 and

262/9 of Nedimozhiyanur Village, Mayilam Taluk, Tindivanam

Registration District.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present second appeal would also be indicated.

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3.The case of the plaintiff in a nutshell is as follows :

3.1. The suit properties originally belonged to one Kannammal.

Kannammal is the wife of one Govindasamy Gounder. Govindasamy

Gounder died during the year 1977 and after his death Kannammal

married one Perumal Gounder. They did not have any issues. Perumal

Gounder was in possession and enjoyment of the suit properties.

3.2. On 14.04.2006 Kannammal died. Elumalai is the only son

of Perumal Gounder and his first wife Karupayee Ammal. Perumal

Gounder executed a settlement deed (Ex.A4) in favour of his grandson

(plaintiff) on 27.04.2006 in respect of the properties belonging to

Kannammal (suit properties) and ever since the date of the settlement

deed, the plaintiff is in possession and enjoyment of the same. In fact,

Perumal Gounder was cultivating sugarcane in the suit properties with

the consent of Kannammal. The first defendant, who is the brother of

Kannammal, was never in possession and enjoyment of the suit

properties. However, he executed a settlement deed dated 07.09.2006

(Ex.B2) in favour of the sixth defendant. According to the plaintiff, this

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settlement deed is null and void. Therefore, he filed the suit for the

reliefs of declaration and injunction as stated above.

4. The suit was resisted by the defendants on the following

grounds:

i. It is false to contend that Perumal Gounder has been in possession

and enjoyment of the suit properties for the past 30 years.

ii. Kannammal was married to Govindasamy Gounder and

constructed a house in the suit properties. Govindasamy was

employed in Railways and after his death Kannammal was

receiving Family Pension till her death.

iii. The plaintiff has not specifically stated in the plaint as to when

Perumal Gounder married Kannammal.

iv. On 10.03.2006 Kannammal executed a Will (Ex.B1) in favour of

the first defendant. Subsequently, the first defendant executed a

settlement deed dated 07.09.2006 (Ex.B2) in favour of the sixth

defendant and handed over the possession of the entire suit

properties in his favour. Hence, the suit filed by the plaintiff is

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liable to be dismissed.

5. On the basis of the above pleadings, the trial Court framed

the following issues:

1) "Whether Kannammal married Perumal Gounder as a second

husband?

2) Whether Perumal Gounder is entitled to execute a settlement

deed?

3) Whether Kannammal had executed a Will dated 10.03.2006 in

favour of the first defendant?

4) Whether the settlement deed dated 07.09.2006 executed by the first

defendant in favour of the sixth defendant is valid?

5) To what relief the plaintiff is entitled?"

6. The plaintiff examined three witnesses and marked Ex.A1

to Ex.A13. The first defendant examined himself and five other

witnesses and marked Ex.B1 to Ex.B8.

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7. The learned trial court judge on considering the evidence on

record decreed the suit in favour of the plaintiff vide his decree and

judgment dated 15.07.2016 on the following grounds:

1) The first defendant in his evidence admitted that Elumalai (father

of the plaintiff) was cultivating crops in the suit properties and that

Kannammal married Perumal Gounder after the death of her

husband Govindasamy Gounder and was living with him.

2) The first defendant has not proved the execution of the Will dated

10.03.2006 allegedly executed by Kannammal in his favour.

8. Aggrieved over the decree and judgment passed by the trial

court judge, the defendants filed an appeal in A.S.No.40/2016, before the

Additional Subordinate Court, Tindivanam. The learned Additional

Subordinate Judge, Tindivanam, after analysing the oral and

documentary evidence on record, vide his decree and judgment dated

12.10.2017, reversed the findings recorded by the trial court and allowed

the appeal on the following grounds:

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i. The plaintiff has not proved that Kannammal married Perumal

Gounder.

ii. Kannammal, as the wife of Govindasamy Gounder, has been

receiving Family Pension till her death.

iii. Even in the electoral roll (Ex.B6), one Karupayee was shown as

wife of Perumal Gounder and Kannammal was not shown as his

wife.

iv. Though the defendants have not proved the execution of the Will

(Ex.B1) in the manner known to law, he can still execute a

settlement deed as a class II legal heir of late Kannammal.

v. The plaintiff has not proved the relationship between his grand

father Perumal Gounder and Kannammal.

9. Aggrieved over the decree and judgment passed by the first

appellate court, the present second appeal is filed by the plaintiff.

10. Notice of motion was issued to the respondents and the

case is posted for hearing today.

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11. Heard Mr.R. Agilesh, learned counsel appearing for the

appellant and Mrs.V. Srimathi, learned counsel appearing for the second

respondent. There is no representation on behalf of the respondents 1 and

3 to 5.

12. Mr.R. Agilesh, learned counsel appearing for the appellant

contended that Perumal Gounder was in possession and enjoyment of the

suit properties with the consent of Kannammal and thus he had acquired

right over the suit properties by adverse possession and prescription. It is

also his contention that both the courts below had concurrently held that

the first defendant has not proved the Will dated 10.03.2006 (Ex.B1)

executed by Kannammal in his favour. He also drew the attention of this

Court to Section 15 of the Hindu Succession Act and contended that after

the death of Kannammal, the properties would devolve upon the legal

heirs of her husband and not on the first defendant, who is the brother of

Kannammal. He would therefore contend that the first defendant is not

entitled to the suit properties and the settlement deed executed by him in

favour of the sixth defendant is null and void.

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13. Per contra, Mrs. V. Srimathi, learned counsel appearing for

the second respondent would contend that there is no evidence to show

that Kannammal married Perumal Gounder after the death of her husband

Govindasamy Gounder. In fact the plaintiff himself admitted that

Karupayee Ammal is the wife of Perumal Gounder and that she is still

alive. Therefore, the marriage between Kannammal and Perumal

Gounder is not valid in the eye of law. It is her further submission that

Kannammal was receiving family pension till her death as Govindasamy

Gounder was working in Railways. She therefore would contend that the

first appellate court was right in dismissing the suit filed by the plaintiff.

14. The plaintiff in the instant case is the grandson of Perumal

Gounder. In the plaint it is contended that Perumal Gounder married

Kannammal while his first marriage with Karupayee Ammal was in

subsistence. It was also specifically averred in the plaint that Perumal

Gounder, Kannammal and Karupayee were all living in the same house.

It is pertinent to point out that when Karupayee Ammal is alive, the

alleged marriage between Perumal Gounder and Kannammal is not a

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valid one. Though it was contended by the learned counsel for the

appellant that Perumal Gounder was managing the properties of

Kannammal with her consent, the same cannot be construed that Perumal

Gounder was enjoying the properties exclusively. The trial court, merely

based on the house tax and property tax receipts (Ex.A5 to Ex.A10), had

held that Perumal Gounder was the owner of the properties. The trial

court has also further held that even in the death extract of Kannammal

(Ex.A11), her husband's name is indicted as Perumal Gounder. These

documents would not be of any help to the plaintiff to prove his

contention especially when there cannot be any valid marriage between

Kannammal and Perumal Gounder. It is also pertinent to point out that

the plaintiff has not pleaded that Perumal Gounder has prescribed title

over the suit properties by way of adverse possession and prescription.

15. Thus the appellant/plaintiff has not proved that he is

entitled for a declaration of title to the suit properties. The first appellate

court had held that though the first defendant has not proved the

execution of the Will dated 10.03.2006 (Ex.B1) by Kannammal in his

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favour, yet he is entitled to execute a settlement deed (Ex.B2) in respect

of the suit properties as he is the class II legal heir of Kannammal. It is

relevant to extract Section 15 of the Hindu Succession Act.

"15. General rules of succession in the case of female Hindus.

(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a)firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b)secondly, upon the heirs of the husband;

(c)thirdly, upon the mother and father;

(d)fourthly, upon the heirs of the father; and

(e)lastly, upon the heirs of the mother.

(2)Notwithstanding anything contained in sub-section (1),—

(a)any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-

deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b)any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence

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of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."

16. In the instant case, the properties stand in the name of

Kannammal and she was the absolute owner of the entire suit properties.

There was no proof that her husband purchased all these properties in the

name of Kannammal. In the circumstances, it cannot be stated that the

properties would devolve upon the legal heirs of her husband. In any

event, the first defendant has not adduced any evidence to show that he is

the only class II legal heir of late Kannammal. However, this is not the

issue which has to be decided in the instant case. The plaintiff and his

father Perumal Gounder are total strangers to the family of Kannammal

and therefore, they cannot claim any right over the suit properties. Hence

the second appeal deserves to be dismissed.

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