Madras High Court
Thangavel vs Chinnammal on 24 June, 2025
A.S.NO.265 OF 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.265 OF 2018
Thangavel ... Appellant /
Defendant
Vs.
Chinnammal ... Respondent /
Plaintiff
PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
1 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated November 10, 2017, made in O.S.No.93 of 2016 by the
learned II Additional District Judge, Erode.
For Appellant : Mr.P.Saravana Sowmiyan
for M/s.C.Prabakaran
For Respondent : Mr.J.Manikandan for
M/s.R.Marudhachalamurthy
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A.S.NO.265 OF 2018
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated
November 10, 2017 passed in O.S.No.93 of 2016 by the 'II Additional
District Court, Erode' ['Trial Court' for brevity], the defendant therein has
filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the
Code of Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. The case of the plaintiff as put forth in the plaint is that the
Suit land was purchased by one Arumuga Nadar, who is the father of the
plaintiff (daughter) and the defendant (son), on June 21, 1957 vide Sale
Deed (Document No.1420/1957). Subsequently, he constructed Suit
superstructures in the Suit land. Arumuga Nadar passed away on October
24, 1988 leaving behind his wife - Karuppayammal, the plaintiff and the
defendant as his legal heirs / legal representatives. Karuppayammal passed
away on September 30, 2003 leaving behind the plaintiff and the
defendant as her legal heirs / legal representatives. According to the
plaintiff, the Suit Property is the self-acquired property of Arumuga Nadar
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and hence, the plaintiff and the defendant are each entitled to half-a-share
in the Suit Property.
3.1. It is further averred that the plaintiff and the defendant
borrowed a sum of Rs.5,00,000/- from one Sakthivel on March 10, 2008
and executed a registered Sale Agreement registered as Document
No.1611/2008 (Joint – I, SRO, Erode). On the same day viz., March 10,
2008, they executed a General Power of Attorney in favour of one
Palaniappan vide Document No.402/2008 (Joint – I, SRO, Erode) who is
the friend of the said Sakthivel as per the demand of the said Sakthivel as
security for the said loan. It is further averred that, though the said
Gowthaman and Sumathi had no right, interest, or title over the Suit
Property, and they were also added as parties to the said Sale Agreement
and the General Power of Attorney, only at the compulsion of the said
Sakthivel. The plaintiff and the defendant repaid the entire loan amount,
along with the accrued interest, to the said Sakthivel in May 2009 itself.
However, the said Sakthivel failed to cancel the Sale Agreement. The Sale
Agreement cannot be enforced as barred by limitation. The Power of
Attorney was cancelled on March 30, 2016 vide Document No.2148/2016
(Joint - I, SRO, Erode).
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3.2. After the demise of their parents, the plaintiff and the
defendant have been in joint possession and enjoyment of the Suit
Property. Accordingly, the plaintiff has filed a Suit seeking partition of the
Suit Property into two equal shares and allotment of one such share to the
plaintiff.
DEFENDANT'S CASE
4. The defendant filed a written statement stating that
Arumuga Nadar and the defendant constituted a Hindu joint family, and
that the Suit land was purchased and the Suit superstructure thereon was
put up by the joint family. It is further stated that both were enjoying the
Suit Property jointly and that the defendant alone has been maintaining the
family and managing all the affairs of the joint family. After the demise of
Arumuga Nadar and Karuppayammal, the defendant along with his son -
Gowthaman and daughter – Sumathi alone has been enjoying the Suit
Property. The plaintiff was entitled to only 1/4 share in the Suit Property.
The plaintiff insisted the defendant to provide her with money and
expressly stated that she would not claim any share in the Suit Property.
Accordingly, at the plaintiff’s request, the defendant borrowed a sum of
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A.S.NO.265 OF 2018
Rs.5,00,000/- from said Sakthivel and paid it to the plaintiff. The
defendant alone repaid the entire amount borrowed. After receiving the
entire consideration of Rs. 5,00,000/- from the defendant, the plaintiff
relinquished her share in the Suit Property in the year 2008 itself.
However, she subsequently failed to cooperate with the defendant in
cancelling the nominal Sale Agreement executed in favour of Sakthivel for
the purpose of loan. The Suit is bad for non-joinder of necessary parties,
namely Gowthaman and Sumathi. It is further averred that the plaintiff’s
marriage took place before 1989 and father died in 1988 and hence, the
plaintiff has no right or interest in the Suit Property and the Suit is barred
by limitation. Further, the Court Fee paid is incorrect. Accordingly, the
defendant prayed for dismissal of the Suit.
TRIAL COURT
5. Based on the above pleadings, the Trial Court framed the
following issues:
“1. Is the plaintiff entitled to seek partition of the Suit
Property as claimed? If so to what share ?
2. Is it true that the plaintiff relinquished her rights over
the Suit Property and received Rs.5,00,000/- as claimed
by the defendant ?
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A.S.NO.265 OF 2018
3. Is one Sakthivel, not a necessary party to the Suit ?
4. Is the Suit barred by limitation as alleged by the
defendant ?
5. To what other reliefs, the parties are entitled to ? ”
6. At trial, plaintiff was examined as P.W.1 and Ex-A.1 to Ex-
A.8 were marked on the side of the plaintiff. On the side of the defendant,
defendant was examined as D.W.1 and no document was marked.
7. After a full-fledged trial, the Trial Court concluded that the
Suit Property is self-acquired property of Arumuga Nadar. The defendants
failed to prove the alleged oral relinquishment as well as that a sum of Rs.
5,00,000/- was paid to the plaintiff in lieu of her share in the Suit Property.
The Sale Agreement executed in favour of Sakthivel is barred by
limitation and hence, he is not a necessary party to the Suit. Further, the
General Power of Attorney was also duly cancelled. The children of the
defendant are not necessary parties to the Suit as they are not legal heirs of
Arumuga Nadar. The plaintiff and the defendant are co-owners / co-heirs
and hence deemed to be in joint possession and enjoyment of the Suit
Property. Hence, Court Fee paid is correct and the Suit is not barred by
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A.S.NO.265 OF 2018
limitation. After the demise of their parents, the plaintiff and the defendant
are entitled to equal shares in the Suit Property. Accordingly, the Trial
Court decreed the Suit and granted a Preliminary Decree for partition.
8. Feeling aggrieved, the defendant has preferred this First
Appeal under Section 96 read with Order XLI Rule 1 of CPC.
ARGUMENTS
9. Mr.P.Saravana Sowmiyan, learned Counsel for
M/s.C.Prabakaran, Counsel on record for the appellant / defendant submits
that the Suit Property is a joint family property. After the demise of
Arumuga Nadar, the plaintiff and the defendant borrowed a sum of
Rs.5,00,000/- in 2008 and the said amount was given to the plaintiff for
relinquishment of her share, at her instance. Hence, the plaintiff orally
relinquished her interest in the Suit Property. The fact that the defendant’s
children were added as parties to the Sale Agreement and the Power of
Attorney executed for the purpose of the loan at the instance of the lender
– Sakthivel, shows that the Suit Property is a joint family property. The
Trial Court failed to consider the fact that the Suit Property is a joint
family property, in which the plaintiff was entitled to only 1/4 share as
well as that the plaintiff received a sum of Rs.5,00,000/- from the
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A.S.NO.265 OF 2018
defendant and orally relinquished her share in the Suit Property and hence,
the plaintiff has no interest or right over the Suit Property and the Suit is
not maintainable. The Trial Court erred in granting a Preliminary Decree
for partition. Accordingly, he prayed to allow the appeal, set aside the
Judgment and Decree of the Trial Court.
10. Per contra, Mr.J.Manikandan, learned Counsel for
M/s.R.Marudhachalamurthy, learned Counsel on record for the
respondent/plaintiff submits that the Suit Property is a separate property
of Arumuga Nadar. Arumuga Nadar purchased the Suit Property on June
21, 1957 vide Ex-A.1 – Sale Deed. Arumuga Nadar died intestate on
October 24, 1988 leaving behind his wife - Karuppayammal, his son / the
defendant and his daughter / the plaintiff as his legal heirs / legal
representatives. His wife – Karuppayammal passed away in the year 2003
leaving behind the defendant and the plaintiff as her legal heirs / legal
representatives. Thus, the plaintiff and the defendant are entitled to 1/2
share each in the Suit Property. The plea of oral relinquishment is not valid
and not proved. The Trial Court, after considering the evidence and
documents, rightly decreed the Suit and there is no warrant to interfere
with it. Accordingly, the learned Counsel prayed to dismiss the Suit.
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POINTS FOR CONSIDERATION
11. Heard on either side. Perused the entire materials
available on record. The points that arise for consideration in this Appeal
Suit are as hereunder:
(i) Whether the Suit Property is a joint family property as alleged
by the defendant or a self-acquired property of Arumuga
Nadar as alleged by the plaintiff?
(ii) Whether the plaintiff orally relinquished her share in favour of
the defendant as alleged by the defendant ?
(iii) Whether the children of the defendant are necessary parties to
the Suit?
(iv) Whether the Court Fee paid is correct ?
DISCUSSION:
Point No.(i)
12. The plaintiff and the defendant are children of one
Arumuga Nadar. The plaintiff’s case is that the Suit Property is the self-
acquired property of Arumuga Nadar. To support this claim, the plaintiff
produced the Sale Deed dated June 21, 1957, marked as Ex-A.1. Upon
perusal of Ex-A.1, it is evident that the Suit Property was purchased by
Arumuga Nadar from one S.R. Venkatesan Iyer for a sale consideration of
Rs.600/-. Hence, the plaintiff has prima facie proved that the Suit Property
is the separate property of Arumuga Nadar and discharged her initial
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burden. The onus now shifts to the defendant to prove that the Suit
Property is a joint family property. Although the defendant pleaded that
the Suit Property is a joint family property, he did not adduce any evidence
to substantiate his claim. There is no evidence available on record to show
the existence of joint family properties before Ex-A.1. Further, at the time
of Ex-A.1, the defendant would have been around 2 years old and hence, it
cannot be said that he contributed to the purchase of Suit land vide Ex-
A.1. Therefore, the Trial Court rightly concluded that the Suit Property is a
self-acquired property of Arumuga Nadar. This Court finds no illegality or
infirmity with the said findings. Accordingly, this Court holds that the Suit
Property is the self-acquired and separate property of Arumuga Nadar.
Point No. (i) is answered in favour of the plaintiff and against the
defendant.
Point No.(ii)
13. As far as the plea of oral relinquishment is concerned, oral
relinquishment is valid provided the defendant pleads and proves the same
in the manner recognized by law [See Paragraph No.14 of the Judgment of
this Court (Single Judge) made in C.Mani -vs- C.Rajan, reported in
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A.S.NO.265 OF 2018
(2024) 6 MLJ 238]. In this case, although the defendant pleaded that the
plaintiff orally relinquished her share after receiving a sum of Rs.
5,00,000/-, no witness was examined to prove the alleged oral
relinquishment. There is no documentary evidence available on record to
infer oral relinquishment. Hence, this Court is of the view that the oral
relinquishment, as pleaded by the defendant, has not been proved.
Therefore, this Court concurs with the findings rendered by the Trial Court
in this regard. Point No. (ii) is answered accordingly, in favour of the
plaintiff and against the defendant.
Point No.(iii)
14. As already stated supra, the Suit Property is the separate
property of Arumuga Nadar. The said Arumuga Nadar passed away as a
Hindu; hence, the applicable law is the Hindu Succession Act, 1956. As
per Section 8 of the Hindu Succession Act, 1956, after the demise of
Arumuga Nadar, his wife - Karuppayammal, the plaintiff, and the
defendants are the legal heirs of Arumuga Nadar. Wife of Arumuga Nadar
namely Karuppayammal passed away intestate on September 30, 2003.
Hence, as per Section 15(1) of the Hindu Succession Act, 1956, the
plaintiff and the defendant are the legal heirs of Karuppayammal.
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Therefore, the plaintiff and the defendant are entitled to half-a-share each
in the Suit Property under Sections 8 and 15 of the Hindu Succession Act,
1956.
15. To be noted, the Sale Agreement and the Power of
Attorney were allegedly executed during the lifetime of the defendant and
he is still alive, and further, Son’s son and son’s daughter are not legal
heirs in the presence of son under Sections 8 and 15 (1) of the Hindu
Succession Act, 1956. The Suit Property being a self-acquired property of
Arumuga Nadar, the defendant’s children had no pre-existing right on the
date of the Sale Agreement and the Power of Attorney alleged executed for
the purpose of loan of Rs.5,00,000/- from one Sakthivel, and merely
because they were joined as parties to the aforesaid two documents, they
are not necessary parties to the Suit [See Judgment of a learned Single
Judge of this Court in M.P.P. Jayagandhi Nadar & Company by partner,
M.P.P. Jayagandhi Nadar -vs- Arunachalam Pillai, reported in 1996 (1)
MLJ 251]. Hence, the children of the defendant, namely Gowthaman and
Sumathi, are not necessary parties to the Suit. Accordingly, Point No. (iii)
is answered in favour of the plaintiff and against the defendant.
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Point No.(iv)
16. As already stated supra, the Suit Property is a self-
acquired property of Arumuga Nadar. After the demise of Arumuga Nadar
and his wife - Karuppayammal, the plaintiff and the defendant being their
legal heirs, became entitled to half-a-share int the Suit Property and thus,
became co-heirs / co-owners of the Suit Property. Hence, the law thus
presumes that the plaintiff and defendant are in joint possession and
enjoyment of the Suit Property. Unless the plea of ouster is pleaded and
proved, the plaintiff is entitled to her ½ share in the Suit Property. There is
no plea of ouster in the first place and further, there is no evidence
available on record to prove ouster. Hence, the plaintiff remains a co-
owner. Accordingly, the Court Fee paid under Sections 37(2) of the Tamil
Nadu Court Fees and Suits Valuation Act, 1955, is correct [See.
Neelavathi Vs. N.Natarajan, reported in AIR 1980 SC 691]. Point No.
(iv) is answered accordingly in favour of the plaintiff and against the
defendant.
17. Assuming, for the sake of argument, that the Suit Property
is a ancestral or joint family property of Arumuga Nadar, in view of
Section 6 of the Hindu Succession Act, 1956 as amended by the Hindu
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Succession (Amendment) Act, 2005 (Act No.39 of 2005) read with the
Judgment of the Hon'ble Supreme Court in Vineeta Sharma -vs- Rakesh
Sharma reported in (2020) 9 SCC 1, the plaintiff would still be entitled to
half-a-share in the Suit Property.
18. In view of the foregoing narrative, this Court finds no
perversity or infirmity with the Judgment and Decree of the Trial Court.
There is no warrant to interfere with the Judgment and Decree of the Trial
Court. Hence, the Appeal Suit must fail.
RESULT
19. In the result, the Appeal Suit is dismissed and the
Judgment and Decree dated November 10, 2017 passed in O.S.No.93 of
2016 by the learned II Additional District Judge, Erode is hereby
confirmed. Considering the facts and circumstances of the case, there shall
be no order as to costs.
24.06.2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
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A.S.NO.265 OF 2018
To
The II Additional District Judge
II Additional District Court
Erode.
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A.S.NO.265 OF 2018
R.SAKTHIVEL, J.
TK
APPEAL SUIT NO.265 OF 2018
24.06.2025
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