Madras High Court
P.Govindammal vs / on 13 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.152 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :05.06.2025
Pronounced on :13.06.2025
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Appeal Suit No.152 of 2022
and
C.M.P.No.5472 of 2022
1.P.Govindammal, W/o late Mr.K.Palanisamy, 63 years,
2.P.Maheswari, D/o late Mr.K.Palanisamy, 40 years
both are residing at Door No.7/205, Nadu Valavu,
Sulthan Pettai Po., Suloor Tk., Coimbatore.
...Appellants/Plaintiffs
/versus/
1.K.Mani Gounder @ K.Palanisamy, yrs.
S/o Late Karuprai Gounder.
2.Kumarasamy @ Sethilkumar,
S/o Mani Gounder @ K.Palanisamy, yrs.
3.Muthu @ Nachimuthu,
S/o Mani Gounder @ K.Palanisamy
All are residing at 2/99, Mungil Thozuvoo village,
Udumalaipettai Taluk, Tiruppur District.
... Respondents/Defendants
1/19
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
A.S.No.152 of 2022
Appeal Suit has been filed under Section 96 of C.P.C.,praying to set
aside the judgment and decree dated 17.11.2021 passed in O.S.No.93 of
2016 on the file of III Additional District and Sessions Judge, Dharapuram.
For Appellant :Mr.R.Kannan
For Respondents :M/s H.Kavitha for
Mr.M.N.Balakrishnan
-----
JUDGMENT
O.S.No.93 of 2016 is a suit for partition filed in respect of the
property which was purchased jointly by Palaniammal and her sister
Chellammal on 13.12.1974.
2. The suit laid by one Palanisamy claiming that he and the first
defendant Mani Gounder are sons of Palaniammal. After the death of
Chellammal issueless, her share came to Palaniammal and she became the
absolute owner of the entire property. On 08.11.1996, Palaniammal died
intestate, leaving behind her two sons. Thus, the plaintiff and the first
defendant became the joint owners of the property having equal share.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
Whileso, the second and third defendants, who are the sons of Mani
Gounder, filed O.S.No.8 of 2010 on the file of District Munsif Court,
Udumalaipet, for declaration of title in respect of the suit property based on
a Will dated 05.08.1996 alledged to have have executed by Palaniammal in
their favour in respect of the suit property. The said suit was decreed exparte
on 17.11.2011 without proper summon to the plaintiff, who was as sole
defendant. On coming to know about the exparte decree behind his back,
necessary steps have been taken to set aside the exparte decree by the
plaintiff and the exparte decree was set aside and suit is pending. Unable to
enjoy the property peacefully along with the joint owners namely the
defendants, Palanisamy instituted the suit for partition, which is the subject
matter of their appeal.
3. Pending suit, the plaintiff Palanisamy died. Hence his wife and
daughter got impleaded and pursued the suit.
4. The defendants contested the suit by admitting the joint purchase
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
of the property by Planaiammal along with her sister Chellammal and on
death of Chellammal intestate and issueless, her share came to Palaniammal.
Thus, she became the absolute owner of the entire property. Death of
Palaniammal on 08.11.1996 also admitted by the defendants. The bone of
contention in the written statement was that, the plaintiff left the village in
the year 1994 for better pasture got separated from the joint family and
permanently settled with his wife and children at Sultanpet, Sulur Taluk.
From then the relationship of joint family and joint enjoyment had come to
an end ousting the plaintiff. The defendants were in exclusive enjoyment of
the property from 1994. Without any protest, the first plaintiff allowed the
defendants to enjoy uninterceptedly the property exclusively. The plaintiff is
not in possession of the property. Therefore, ought to have valued the suit
under Section 37(1) of the Tamil Nadu Suit Valuation and Court Fees Act
and not under Section 37(2) of the said Act. For the said reason alone, the
suit is liable to be dismissed. Further, having knowingly lost the right of his
share in the property as early as 1994, the suit seeking partition is barred by
limitation.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
5. The plaintiff was indulging in activities disgracing the family and
particularly his conduct was against the wishes of Palaniammal. Therefore,
Palaniammal during her life time executed a Will on 05.08.1996
bequeathing the suit property to the second and third defendants vesting life
interest on Mani Gounder @ K.Palanisamy and his wife Mylathal to enjoy
the property till their life without alienating.
6.After the demise of Palaniammal, the two sons of Palanisamy to
enjoy the property absolutely. In the year 2004, the peaceful enjoyment of
the property by the defendants was disturbed by the first plaintiff. Hence,
the suit O.S.No.549 of 2004 was filed for injunction against the plaintiff
which was allowed on 07.04.2005. The decree in O.S.No.549 of 2004 binds
his legal heirs, who are the plaintiffs 2 and 3.
7. After the declaration of title in O.S.No.8 of 2010, the property was
sold to the third defendant under sale deed dated 16.02.2012. As absolute
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
owner of the property, he had improved the property by digging well and
installing electrical motor for the purpose of irrigation. For the past 23 years
the defendants are enjoying the property without any obstruction and with
the knowledge of the plaintiffs by cultivation vegetables and other crops.
The plaintiffs are strangers and cannot seek partition.
8. Based on the above pleadings, the following issues and additional
issues were framed:-
Issues framed on 04.10.2017:
(1)Is it correct to say that the mother of the 1 st plaintiff and 1st
defendant died intestate on 08.11.1996?
(2)Whether the alleged Will dated 05.08.1996 is valid one and
binding over the right of the 1st plaintiff?
(3)Whether the plaintiffs are entitled for decree of partition as prayed
for? and
(4)What other reliefs, the plantiffs are entitled to?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
9. Additional issue framed on 19.02.2019:
(1)Is it correct to say that the sale deed dated 16.02.2012 is sham and
nominal and not binding over the plaintiffs?
10. Govindammal the second plaintiff mounted the witness box.
Examined as PW-1. The certificate copy of the sale deed dated 13.12.1974
in favour of Palaniammal and Chellammal; the death certificate of
Palaniammal; the plaint copy and written statement copy in O.S.No.8 of
2010 are marked as Ex.A-1 to Ex.A-4. On the side of defendants 3
witnesses-DW.1 Muthu @ Nachimuthu (third defendant), DW.2-
Subramani, who is witness to Ex.B-2-the Will of Palaniammal, dated
05.08.1996 and DW.3-Mani Gounder the first defendant were examined. 25
documents were marked to establish that the Will of Palaniammal was
already tested by court of law and proved as genuine and acted upon. The
present enjoyment of the property by the third defendant Muthu @
Nachimuthu through the sale deed Ex.B1 and other documents.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
11. The trial Court held that the defendants have proved that the first
plaintiff had left the village in the year 1994 and allowed the defendants to
enjoy the properties exclusively without any objection. Thus, his claim of
joint enjoyment is incorrect. Based on the decree passed in O.S.No.549 of
2004 and O.S.No.8 of 2010, the third defendant had purchased property
from his father Palanisamy and mother Mylathal vide, sale deed dated
16.02.2012 and been enjoyed by the third defendant without any objection.
Hence, the plaintiffs are not entitled for share in the property.
12. The second and third plaintiffs, who are the wife and daughter of
the deceased first plaintiff, had preferred the appeal stating that the trial
Court erred in dismissing the suit relying the exparte decree passed in
O.S.No.549 of 2004 and exparte decree passed in O.S.No.8 of 2010
unmindful of the fact that those decrees were obtained behind the back of
the first plaintiff showing wrong address. Further, the exparte decree passed
in the declaration suit O.S.No.8 of 2010 was set aside. The same is admitted
by the first defendant in the cross. The said suit O.S.No.8 of 2010 is still
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
pending. Therefore, the trial Court erred in holding that the title of the
property in favour of the defendants already declared.
13. The sale deed (Ex.B-1), dated 16.02.2012 is on the strength of the
exparte decree passed in O.S.No.8 of 2010. The said exparte decree is set
aside and later the suit itself got dismissed for default. Hence, the validity of
the sale deed (Ex.B-1) is lost. As per the Will of Palaniammal, Mani
Gounder and Mylathal are only life interest holder without any right to
alienate. Obviously, without right and title, the first defendant along with
his wife Mylathal had executed a sham and nominal sale deed in favour of
his son the third defendant. Therefore, the trial Court's judgment is against
law and facts, hence, to be reversed and the suit has to be allowed.
14. The point of determination:
Whether the trial Court erred in holding that the defendants had
perfected title by ousting the plaintiffs and that by virtue of the decree in
O.S.No.549 of 2004 and O.S.No.8 of 2010, the sale of the property under
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
Ex.B1 by the first defendant and his wife in favour of the third defendant is
valid?
15. The suit property admittedly purchased by Chellammal and her
sister Palaniammal vide, Ex.A1 on 13.12.1974. The parties admitted that
Chellammal died unmarried, issue-less and interstate and her share devolved
upon Palaniammal being the second class heir of Chellammal. It is also not
in dispute that Palaniammal died on 08.11.1996 and the same is also proved
through the death certificate marked as Ex.A2. While the case of the first
plaintiff is that Palaniammal died intestate and he as her grand-son entitles
for a share in the property, the case of the defendants is that during her
lifetime, Palaniammal executed an unregistered Will on 05.08.1996 and that
unregistered Will came into effect after the demise of Palaniammal.
According to the defendants, Palaniammal, who purchased the property by
Doc.No.4042 of 1974 (Ex.A1), bequeathed under Will to and in favour of
her son Mani Gounder @ K.Palanisamy and his wife Mylathal to enjoy the
property till their life time without encumbrance. Thereafter, the property
shall vest with her grand children Kumarasamy @ Senthil kumar and Muthu
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
@ Natchimuthu. After demise of their parents, Palanisamy and Mylathal
shall take possession of the property and enjoy it absolutely and equally.
16. The Will of Palaniammal was attested by Subramaniam, S/o
Ramassamy Naidu, Moongil Thozhuvu (DW-2) and Chenniappa Gounder,
S/o Subbi Gounder. The plaintiffs dispute the existence of the Will and also
questioned the validity of the exparte decree obtained against him in
O.S.No.549 of 2004 and O.S.No.8 of 2010. Ex.B5 is the decree copy of
O.S.No.549 of 2004. The cause title of the decree indicates Mani Gounder
@ Palanisamy, as the first plaintiff and his wife Mylathal as the second
plaintiff. The defendant is the first plaintiff in the suit under appeal. The suit
is for the relief of declaration that Mani Gounder and his wife Mylathal have
a life interest in the suit property as per the unregistered Will of
Palaniammal, dated 05.08.1996 and a consequential injunction against the
defendants, their men and agents from interfering with their peaceful
possession. In the said suit, the defendant was set exparte and the relief
sought was granted. This decree has not been challenged by the plaintiff and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
it has reached finality.
17. The certified copy of the decree in O.S.No.8 of 2010 is marked as
Ex.B6. The perusal of the documents reveals that this suit was filed by
Kumarasamy @ Senthilkumar, S/o Mani Gounder @ Palanisamy and Muthu
@ Natchi Muthu, who is the second and third defendants in the present suit
O.S.No.93 of 2016. The prior suit O.S.No.8 of 2010 was instituted by these
two defendants against Palanisamy the first plaintiff in the present suit.
This suit in O.S.No.8 of 2010 filed seeking declaration of title and
injunction was allowed on 17.12.2011 declaring the title of the plaintiffs
(Kumarasamy @ Senthilkumar and Muthu @ Natchimuthu), in the suit
property as per Will dated 05.08.1996 and permanent injunction restraining
the defendant Palanisamy(the plaintiff in the present suit) and his men from
interfering with the peaceful possession.
18. Relying upon certain admission that in the DW-1 cross, the
plaintiffs contended that the exparte decree passed in O.S.No.8 of 2010was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
later set aside and it is pending. Apart from the decree passed in O.S.No.8 of
2010 in which the first plaintiff is the defendant. There is an earlier decree
against him passed on 07.04.2005 in O.S.No.549 of 2004 wherein the
unregistered Will of Palaniammal dated 05.08.1996 been disclosed and
declaration of the life interest vested with Mani Gounder @ Palanisamy and
his wife Mylathal been declared and the said declaration has reached
finality.
19. Even assuming, though no evidence that the subsequent suit filed
for declaration in O.S.No.8 of 2010 in respect of the property by the sons of
Mani Gounder @ Palanisamy against the plaintiff, was later set aside, the
declaration of life interest vested with Mani Gounder @ Palanisamy and his
wife Mylathal based on the Will dated 05.08.1996, as per decree in
O.S.No.549 of 2004 remains valid and not challenged by the first plaintiff,
though he is the sole defendant in the suit. Having allowed the decree in the
suit filed by his parents seeking declaration and injunction to protect their
life interest in the suit property based on the Will executed by Palaniammal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
on 05.08.1996, the first plaintiff cannot now challenge the validity of the
said Will by filing a fresh suit in the year 2016, after suffering the decree in
the year 2005.
20. The only point, which remains is whether after getting the decree
of declaration upholding Mani Gounder and his wife Mylathal had derived
the life interest in the property of Palaniammal by virtue of her Will dated
05.08.1996, can Mani Gounder sell the property to the third defendant under
the sale deed Ex.B1 on 16.02.2012.
21. In this regard, it is to be noted that the property was jointly
purchased by Palaniammal and her sister Chellammal in the year 1974 under
Ex.A1. After the death of Chellammal intestate and issue less, Palaniammal
became the absolute owner of the entire property and she during her lifetime
had executed the Will Ex.A2 dated 05.08.1996 and died on 08.11.1996
(Ex.A2). The Will has been tested twice. First, in O.S.No.549 of 2004 filed
by Mani Gounder and his wife Mylathal against Palanisamy (plaintiff
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
herein) for declaring their life interest conveying in the Will the suit was
decreed as against the first plaintiff in the present suit. He remained exparte
and the decree has reached finality and there is no evidence placed by him
that he has taken steps to set aside the exparte decree dated 07.04.2005
passed in O.S.No.549 of 2004.
22. Again, the Will was the subject matter of the suit in O.S.No.8 of
2010. This suit seeks declaration that the remainder interest vests with the
second and third respondents/defendants herein under the same Will. This
suit has been instituted by two sons of Mani Gounder as against the first
plaintiff in O.S.No.93 of 2016(the deceased first appellant). This suit was
also decreed, upholding the validity of the Will of Palaniammal. Though it
is an exparte decree and the plaintiff claims that he has taken steps to set
aside the exparte decree and it was allowed, he has not placed any
documents to that effect.
23. In the said circumstances, the other documents relied by the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
defendants, which are marked as Exs.B8 to B19, would show that the third
defendant had obtained electricity connection for the property and had been
cultivating the property availing agriculture loan and Patta has been issued
in his favour. After his parents' demise, the reminder interest in the property
has been vested in his favour. Apart from the two Court decrees upholding
the validity of the Will executed by Palaniammal, in this suit also one of the
attesting witnesses was examined to prove the due execution of the Will.
The Will cannot be questioned at this point of time by the plaintiff, who
remained exparte in the earlier two proceedings. The right of alienating the
property in favour of the third defendant by the first defendant and his wife,
by virtue of deed (Ex.B1) dated 16.02.2012, at the least ought to have been
challenged by Kumarasamy @ Senthilkumar, the other son of Mani
Gounder and Mylathal, since in the Will, Palaniammal had given absolute
right in the property equally to the said Senthilkumar along with Muthu @
Natchimuthu/the third defendant. Though the said Kumarasamy is one of
the defendants in the suit, he has not challenged the sale deed(Ex.B1) dated
16.02.2012.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
24. In the said circumstances, the suit for partition alleging that
Palaniammal died intestate, is not sustainable. The first plaintiff failed to
prove that he had been in joint possession of the property along with the
defendants even after the death of Palaniammal. Contrarily, the third
defendant proved through documents Ex.B1 to Ex.B25 had positively
established that the property had ultimately come into his hands from
Palaniammal through his father Mani Gounder, and mother Mylathal on the
strength of documents like Ex.B2 the Will of Palaniammal dated
05.08.1996, Ex.B5 — the decree passed in O.S. No. 549 of 2004, Ex.B6 —
the decree passed in O.S. No. 8 of 2010, and the sale deed (Ex.B1) dated
16.02.2012. Hence, this Court holds that the suit has been rightly dismissed
by the trial Court.
25. In the result, this Appeal Suit is dismissed as devoid of merits.
Consequently, connected Miscellaneous Petition is closed. No costs.
13.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
Index:yes/no
Speaking order/non speaking order
Neutral citation:yes/no
ari
To
1.III Additional District and Sessions Judge, Dharapuram.
2.The Section Officer, V.R.Section,High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
Dr.G.JAYACHANDRAN,J.
ari
delivery judgment made in
and
13.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:51:18 pm )
