Madras High Court
D.Murthy vs C.Mallika on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.351 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.351 of 2023
and
C.M.P.No.12162 of 2023
---
D.Murthy ... Appellant
Versus
1. C.Mallika
2. V.Shanthi
3. D.Karunanidhi ... Respondents
Appeal Suit filed under Section 96 of Code of Civil Procedure r/w.
Order XLI Rule 1 of Code of Civil Procedure, 1908 against the Judgment and
Decree dated 04.08.2022 made in O.S. No. 6519 of 2018 on the file of the
learned XV Additional Judge, City Civil Court, Chennai.
For Appellants : Mr. R. Thiagarajan
For Respondents : Mr. J. James
JUDGMENT
This Appeal Suit had been filed to set aside the Judgment and Decree
passed by the learned XV Additional Judge, City Civil Court, Chennai in
O.S.No.6519 of 2018 dated 04.08.2022.
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2. The learned Counsel for the Appellant submitted that the
Appellant is the Plaintiff in O.S.No.6519 of 2018 on the file of the learned XV
Additional Judge, City Civil Court, Chennai.
3. The brief facts as per the learned Counsel for the Appellant is that
the father of the Plaintiff/A. Damodharan was employed in the Metropolitan
Transport Corporation. The mother of the Appellant was divorced by his
father when the Appellant was aged one year. Subsequently, the father of the
Appellant married one Baby Ammal. Through the second wife, Baby Ammal,
the Defendants 1 to 3 were born. The property was purchased in the year 1972.
The father of the Appellant executed a settlement deed in favour of his second
wife/Baby Ammal.
4. It is the contention of the learned Counsel for the Appellant that
even though the father married one Baby Ammal as second wife, the Appellant
was brought up by them as natural son. While so, the said Baby Ammal died
in the year 2009. Subsequent to the death of Baby Ammal, the sons and
daughter of Baby Ammal created a partition deed. Therefore, the Plaintiff
had filed the Suit. Before that, the properties were mortgaged to Chindadripet
Co-operative Societies in which the Appellant was also a co-applicant.
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Subsequently, they created a mortgage in favour of Purasaivakkam Santhana
Sanga Nithi for Rs.1,60,000/- in which the Appellant was also a co-applicant.
After the death of the father of the Appellant, the Appellant had discharged the
mortgage loan and redeemed the documents. While so, the sons and daughter
of Baby Ammal had created partition deed denying the share of the Appellant.
Therefore, he had filed the Suit for partition seeking 1/4th share in the property.
Also, he had sought to declare the partition deed entered into between the sons
and daughter of Baby Ammal as null and void. After full trial, the learned XV
Additional Judge, City Civil Court, Chennai by Judgment dated 04.08.2022
rejected the claim of the Plaintiff and dismissed the Suit.
5. Aggrieved by the same, this Appeal had been filed to set aside the
Judgment and decree passed by the learned XV Additional Judge, City Civil
Court, Chennai as the learned Judge had not appreciated the facts as gathered
from the records based on the documents furnished by the Plaintiff.
6. The learned Counsel for the Respondents submitted that the claim
of the Plaintiff is not true. He relied on the evidence of the Plaintiff himself in
which he had admitted that the property was purchased by his father. Issue
No.4 in the Suit is with regard to the self acquired property of A. Damodharan
and it was answered in favour of the Defendants.
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7. Also, the learned Counsel for the Respondents submitted that the
Plaintiff in the Suit had not sought relief to declare the settlement deed as null
and void. After the death of Baby Ammal, sons and daughter of Baby Ammal
are alone entitled to succeed the property as per the Hindu Succession Act,
1956. The learned Counsel for the Respondents also invited the attention of
this Court to the discussion of evidence by the learned XV Additional Judge,
City Civil Court regarding Issue Nos.2 and 3 and had answered the issues
against the Plaintiff based on his own admission in his cross-examination.
Also, the evidence of the Defendant Witness-1 in which it is stated that the
Plaintiff at the age of 15 years left home of A. Damodharan and Baby Ammal.
Therefore, the claim of the Plaintiff is not true. He was not residing along with
them. Further, the learned Counsel for the Respondents submitted that the
learned Judge had held that after execution of settlement deed, the said
Damodharan himself does not have any right or claim over the property. The
property is in the name of Baby Ammal and she had applied for a building plan
and also Patta was granted in her favour. After the death of Baby Ammal,
naturally the legal heirs of Baby Ammal/Defendants 1 to 3 succeeded to the
property and therefore they are within their rights to partition the property
among themselves. The learned XV Additional Judge, City Civil Court had
rejected the claim of the Plaintiff. The learned Counsel for the Respondents
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submits that the Appeal is not maintainable and is to be dismissed.
Point for determination:
Whether the Judgment and Decree dated 04.08.2022 made
in O.S. No. 6519 of 2018 on the file of the learned XV
Additional Judge, City Civil Court, Chennai is to be set aside as
perverse warranting interference of this Court?
8. Heard the learned Counsel for the Appellant Mr.R.Thiagarajan and
the learned Counsel for the Respondents Mr.J.James.
9. Perused the plaint filed by the Plaintiff and the written statement
filed by the Defendants, the depositions of Plaintiff D.Murthy as P.W-1, the
documents marked on the side of the Plaintiff as Ex.A-1 to Ex.A-25. Perused
the depositions of the first Defendant as D.W-1 and the documents marked on
the side of the Defendants as Ex.B-1 to Ex.B-19 and the judgment dated
04.08.2022 made in O.S. No. 6519 of 2018 by the learned XV Additional
Judge, City Civil Court, Chennai.
10. As rightly pointed out by the learned Counsel for the Respondents,
the learned Judge had framed, the following issues.
(i) Whether the Plaintiff is entitled to get 1/4 share in the suit property?
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(ii) Whether the Plaintiff is entitled to get the declaration regarding
Document No.3286/2017, dated 21.07.2017 as null and void?
(iii)Whether the Plaintiff is entitled to get permanent injunction against the
Defendants?
(iv)Whether the suit property is a self-acquired property of Late
A.Damodharan?
(v) To what relief?
11. The learned Judge had in paragraph 8 mentioned the facts
admitted by both sides as follows:
i. The father of the Plaintiff and Defendants is A.Damodharan.
ii. The said A.Damodharan had married one Chandra and she gave birth,
the Plaintiff and she got customary divorce from the said A.Damodharan
i.e., the Plaintiff is the son born to A.Damodharan and Chandra..
iii. The said Damodharan had married one Baby Ammal as second wife
after he got customary divorce from the said Chandra.
iv. The said A.Damodharan and Baby Ammal had two daughters and one
son out of their wedlock and they are the Defendants in this case.
v. The said A.Damodharan executed a settlement deed out of love and
affection in favour of his second wife by name A.Baby Ammal on
24.04.1986 and he had also executed a rectification deed on 28.05.1986.
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12. The learned Judge had taken up the Issue No.4 - Whether the suit
property is a self-acquired property of Late Damodharan? as point for
discussion before proceeding with the judgment in the case. He had stated that
the Counsels on both sides and both parties pleaded and deposed that the suit
schedule property was originally purchased by the said A.Damodharan. There
was no dispute with regard to the properties. Both P.W-1 and D.W-1 have
deposed in the same line in this regard. In Ex.B-1 the settlement deed executed
by the said A. Damodharan is recited as follows:
“,jd; b&l;[a{ypy; fz;l tPl;od; mo kidahdJ fhjh; bkha;jPd;
fhrpg; vd;gtUf;Fr; brhe;jkhd kidia ehd; ifg;gw;wp. nkw;go kidapy;
vd; Rahh;r;rjkha; rk;ghjpj;j gzj;ijf; bfhz;L tPL tifawhf;fs; fl;o
kpd;rhjdk; bghUj;jp. ehsJ njjptiu vdf;nf brhe;jkha; vd; mDgtj;jpYk;
vd; RthjPdj;jpYk; ,Ue;J tUk; fPH;fz;l brhj;ij eP vd; kidtp
MdgoahYk;. cdf;F xU Mjuthf ,Uf;Fk; gl;rj;jpy; cd;dplk; ,Ue;J
ehd; ve;jtpjkhd gpujpgyDk; vjph;ghuhky;. ,e;j brl;;oy;bkz;L gj;jpuk; K:yk;
fPH;fz;lbrhj;ij vd; bgaUf;F ehd; vHjp itj;J. nkw;go brhj;ija[k;
,d;nw cd; RthjPdk; bra;Jtpl;nld;/”
13. Further, the learned Judge had observed in paragraph 9 as “P.W-1,
the Plaintiff himself deposed that “jhth brhj;J vd; mg;ghtpd; Ra rk;ghj;jpa
brhj;J.” Therefore, it is very clear from Ex.B-1 that originally the suit schedule
property was self-acquired property of the said A.Damodharan. Hence, the
issue is answered accordingly.
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14. The learned Judge had taken up Issue No.1 as point for discussion
following the Issue No.4 wherein the deposition of P.W-1 was extracted as
follows:
@vd; mg;gh bgau; jhnkhjud;/ vd; jhahu; bgau; re;jpuh/ nggpak;khs;
vd;gJ vd; mg;ghtpDila 2tJ kidtp. vd;Dila 1tajpw;F Kd;dnu vd;
mg;gh mk;kht[f;fpilna tpthfuj;J Vw;gl;Ltpl;lJ. jhth brhj;J vd;
mg;ghtpd; Ra rk;ghjpaj;jpd; brhj;J/ gpujpthjpfs; vd; mg;ght[f;Fk;
nggpak;khSf;Fk; gpw;ejtu;fs;/ vd; mg;gh nggpak;khSf;F vGjpitj;j brl;oy;
bkz;l; Mtzk; jhd; V1/ mjpy; cs;s gpiHjpUj;jy; Mtzk; jhd; V2/
vjd; mog;gilapy; nggpak;khs; brhj;jpy; ghfk; nfl;fpnwd; vd;why; mJ vd;
17 mg;ghtpd; brhj;J/ V1y; vdf;F cupik vJt[k;bfhLf;ftpy;iy/ V1I uj;J
bra;a gupfhuk; nfhutpy;iy/@
15. The learned Judge, while discussing the Issue No.1, had observed
in the judgment in paragraph 10 that the father of the Plaintiff and Defendants
A.Damodharan, while executing the settlement deed under Ex.A-1, specifically
stated that the property was his self-acquired property and out of love and
affection towards his wife (second wife Baby Ammal) and as the first
wife/mother of the Plaintiff having divorced after the customary divorce when
the Plaintiff was one year old, had executed the settlement deed under Ex.A-1
on 24.04.1986 which was registered as Document No.1296 of 1986 to the
second wife Baby Ammal, the mother of the Defendants 1 to 3. Further, he had
in the very same settlement deed stated that from the date of execution of the
settlement deed, the father of the Plaintiff and Defendants, A.Damodharan had
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forfeited his right to the said property. He had further executed a rectification
deed as per Ex.A-2 dated 28.05.1986, which was registered as Document
No.1746 of 1986. Therefore, from the date of execution of the settlement deed
dated 24.04.1986 itself, the father of the Plaintiff himself does not have any
right at all in the said property. Therefore, as a legal heir of the said
A.Damodharan, the Plaintiff cannot claim any right over the property stating
that the suit property belonged to the father of the Plaintiff. Further, in the
discussion, the learned Judge had stated that as per the evidence of the Plaintiff
himself, till the date of filing of the suit, the settlement deed executed by the
father of the Plaintiff and Defendants was not cancelled or revoked. Also, the
Plaintiff himself had not sought declaration to cancel the settlement deed under
Ex.A-1 and Ex.B-1 dated 24.04.1986. Therefore, the learned Judge had
answered Issue No.1 against the Plaintiff.
16. Further in paragraph 11, the learned Judge had raised the query,
whether the Plaintiff would become one of the legal heir of late Baby Ammal?
Admittedly, Baby Ammal the second wife of A.Damodharan and mother of
Defendants 1 to 3 died intestate. Therefore, as per Section 15(1)(a) of the
Hindu Succession Act, 1956, the devolution of the property of the female dying
intestate is as follows:
(a) firstly, upon the sons and daughters (including the children of any
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predeceased son or daughter) and the husband ;
(b) secondly, upon the heirs of the husband;
17. The said Baby Ammal is the step mother of this Plaintiff.
Therefore, the Plaintiff cannot be treated as son of the said Baby Ammal. As
per Section 15(1) (a) of the Hindu Succession Act, 1956 the sons and daughters
born to said Baby Ammal alone can claim right over the property. The Plaintiff
is not a son to the said Baby Ammal. Therefore, under Section 15(1) (a) of the
Hindu Succession Act, 1956, he cannot claim any right over the suit property.
Though he was entitled for a share in the property under Section 15(1) (b) of
the Hindu Succession Act, 1956, as a heir of the husband of said Baby Ammal,
he was not a preferential heir.
18. The learned Judge had quoted Section 16 of the Hindu Succession
Act, 1956 which reads as under:
'' Sec.16. Order of Succession and manner of distribution
among heirs of a female Hindu. -- The order of succession
among the heirs referred to in section 15 shall be, and the
distribution of the intestate's property among those heirs shall
take place, according to the following rules, namely:--
Rule 1 – Among the heirs specified in sub-section (1) of section
15, those in one entry shall be preferred to those in any
succeeding entry and those including in the same entry shall take
simultaneously. ''
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19. As per Rule 1, the Defendants are in the first entry and the
Plaintiff is in succeeding entry. As per Rule 1 of Section 16, the Plaintiff is
disentitled to claim right over the suit property. Thus, even as per succession
also, he became disqualified to claim any share. Therefore, the learned Judge
had answered the Issue No.1 against the Plaintiff. The learned Judge also had
answered the claim of the Plaintiff that the Plaintiff had pleaded that he had
paid mortgage amount to Purasawakkam Santhantha Sanga Nidhi Limited and
thereby redeemed the mortgage to that effect, he had marked documents Ex.A-
4 and Ex.A-7. As per Ex.A-4, Baby Ammal, her husband A.Damodharan, the
Plaintiff D. Murthy, the Defendants Mallika, Shanthi & Karunanithi executed
mortgage deed in favour of Purasawakkam Santhantha Sanga Nidhi Limited.
Though the property belongs to Baby Ammal the mortgage deed was executed
by the Plaintiff and the Defendants and by their parents. It was executed by all
the six persons on the direction of Purasawakkam Santhantha Sanga Nidhi
Limited. It was executed by six persons in abundant caution though the said
property belongs to Baby Ammal alone. Therefore, the learned Judge had held
that even as per Ex.A-4, the Plaintiff cannot claim right over the suit property.
The claim of the Plaintiff that he had paid the mortgage amount and redeemed
the property, for which, he had marked Ex.A-7, wherein he had annexed
auction sale notice, whereby he was called upon to pay the arrears amount does
not show that he paid the entire mortgage loan towards Purasawakkam
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Santhantha Sanga Nidhi Limited. Therefore, the learned Judge had stated that
Ex.A-4 and Ex.A-7 does not create any right over the suit property in favour of
the Plaintiff. The first Defendant as D.W-1 had deposed that the first Defendant
had paid the mortgage amount and the documents were redeemed from
Purasawakkam Santhantha Sanga Nidhi Limited. To that effect D.W-1 had
produced Ex.B-19. As per Ex.B-19, a sum of Rs.75,000/- had been paid to
Purasawakkam Santhantha Sanga Nidhi Limited on 28.06.2005. Therefore, on
analyzing the evidence of D.W-1 with Ex.B-19, it was found that the Plaintiff
had not paid any money to the loan obtained by mortgage. Therefore, Issue
No.1 was answered against the Plaintiff. Also on the basis of the evidence,
Issue No.3 was answered against the Plaintiff. The issue regarding claim of
injunction against the Defendants by the Plaintiff was rejected while answering
issue No.3 on the ground that the first Defendant as D.W-1 had clearly stated
that the Plaintiff left the family of A.Damodharan and Baby Ammal when he
was aged 15 and joined his natural mother Chandra. Therefore, he is not
presumed to be in joint possession with the Defendants. Therefore, the Issue
No.3 was answered against the Plaintiff.
20. Then the learned Judge had taken up the Issue No.2. Ex.A-6 is the
legal heir certificate issued to the legal heirs of Baby Ammal. The name of the
Plaintiff is not found in Ex.A-6. The Defendants had pleaded and deposed
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evidence that they are the legal heirs of Baby Ammal. They produced legal
heirs certificate under Ex.B-17. The learned Judge had also relied on the
commentaries to the Hindu Succession Act, 1956. As per Section 15(1)(a) of
the Hindu Succession Act, 1956, the sons and daughters born to the womb of
Baby Ammal alone are the legal heirs of the Baby Ammal. Therefore, the
Defendants alone are the legal heirs of Baby Ammal and accordingly, they had
partitioned the suit property among themselves. The adopted son or foster son
would not come under the category of son. Therefore, the learned Judge had
rejected the claim of the Plaintiff seeking declaration that the partition deed
executed on 21.07.2017 among the Defendants as null and void. Therefore, the
suit was dismissed. On perusal of the documents particularly, Ex.A-1, Ex.A-2,
Ex.A-4, Ex.A-7, Ex.B-6, Ex.B-8, Ex.B-9, Ex.B-11, Ex.B-17 the claim of the
Plaintiff in the plaint is found not maintainable. The reasoning given by the
learned XV Additional Judge, City Civil Court, on proper appreciation of
evidence as per the provisions of Indian Evidence Act and as per the provisions
of Hindu Succession Act, 1956 cannot be treated as perverse. It is a proper and
well reasoned judgment which does not warrant any interference.
21. Further, as per the settled proposition of law laid down by the
Hon'ble Supreme Court when the trial Court had, on proper appreciation of the
pleadings and evidence, arrived at a conclusion, the finding of the learned trial
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Judge shall not be disturbed by the Appellate Court. Even if on the same set of
evidence, the Appellate Judge arrives at a opposite finding, the finding of the
trial Court shall not be disturbed. Here, the judgment of the trial Court is
found proper as per the Indian Succession Act, 1956.
22. The Plaintiff in his evidence had clearly stated that his father
executed the settlement deed in favour of the second wife Baby Ammal,
mother of the Defendant 1 to 3. It is an accepted principle under the Transfer
of Property Act that if the person executes the settlement deed, the owner of the
property loses his right of ownership over the property from the date of
execution of the settlement deed. Therefore, till it is cancelled or revoked by
the person who had executed the settlement deed, the settlement deed holds
good. Therefore, as on the date of filing of the suit, the owner of the property
was not A.Damodharan, the owner of the property was Baby Ammal. Further,
as per the documents furnished before the trial Court, Baby Ammal had
exercised her right as owner of the property by obtaining loan from the
Purasawakkam Santhantha Sanga Nidhi Limited by executing mortgage deeds
under Ex.B-5 and ExB-8. She was issued with patta as per Ex.B-3 and Ex.B-4.
She had obtained Building Plan as per Ex.B-7 dated 16.02.1990. She had
obtained loan under Ex.B-10. She had also paid final payment and obtained
receipt for mortgage deed dated 27.11.1995 as per Ex.B-11. The property tax
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demand was issued in the name of Baby Ammal under Ex.B-15 and Ex.B-16.
While so, the observation of the learned Judge while answering Issue No.1 that
when the father had executed settlement deed under Ex.A-1 and rectification
deed under Ex.A-2 from the date of execution of the settlement deed, the father
loses the right over the property, is found proper. From the date of execution of
the settlement deed, Baby Ammal treated the property as her own as evidenced
by documents under Ex.B-3 and Ex.B-4 Ex.B-5, Ex.B-7, ExB-8, Ex.B-10,
Ex.B-11, Ex.B-15 and Ex.B-16. As per Section 15 (1) of the Hindu Succession
Act, 1956 when the female Hindu died intestate naturally, her biological
descendants become her legal heirs. Further, under Section 16 of the Hindu
Succession Act, 1956, among the heirs under subsection (1) of Section 15,
those in the first entry shall be preferred to those in the succeeding entry.
Therefore, when there are direct descendants, the other descendants cannot be
treated as legal heir of the deceased female Hindu who died intestate.
Therefore, after the death of Baby Ammal, who died intestate, the Defendants 1
to 3 are the legal heirs of Baby Ammal. Consequently, as on the date of filing
of the suit, the Plaintiff cannot claim any right. It is in evidence that he had not
filed the suit seeking declaration to declare the settlement deed as null and
void. Therefore, the finding of the learned trial Judge is proper as per the
provisions of Indian Evidence Act and as per the provisions of the Hindu
Succession Act, 1956. When the finding of the learned trial Judge is found to
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be proper as per the provisions of Indian Evidence Act and as per the
provisions of the Hindu Succession Act, 1956, this Appellate Court cannot
interfere with the finding of the learned XV Additional Judge, City Civil Court,
Chennai. Therefore, this Appeal lacks merit as argued by the learned Counsel
for the Respondents.
23. In the light of the above discussion, the point for determination is
answered in favour of the Respondents and against the Appellant. The
Judgment and Decree dated 04.08.2022 made in O.S. No. 6519 of 2018 on the
file of the learned XV Additional Judge, City Civil Court, Chennai is found
proper which does not warrant any interference by this Court.
In the result, this Appeal Suit is dismissed as having no merit. The
Judgment and Decree dated 04.08.2022 made in O.S. No. 6519 of 2018 on the
file of the learned XV Additional Judge, City Civil Court, Chennai, is
confirmed. Considering the relationship between the parties, there is no order
as to cost. Consequently, connected miscellaneous petition is closed.
24.06.2025
Index:Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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dh/srm
SATHI KUMAR SUKUMARA KURUP, J.
dh/srm
To
1. The XV Additional Judge,
City Civil Court,
Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras.
Judgment made in
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24.06.2025
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